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R. v. Derbyshire 263

[Indexed as: R. v. Derbyshire]

Her Majesty the Queen (Appellant) v. Brittany LeighDerbyshire (Respondent)

Nova Scotia Court of Appeal

Docket: C.A.C. 435848

2016 NSCA 67

Beveridge, Saunders, Van den Eynden JJ.A.

Heard: March 15, 2016

Judgment: September 13, 2016

Charter of Rights and Freedoms –––– Life, liberty and security of person [s.7] — Abuse of process –––– Conduct of peace officer — Undercover police of-ficers posing as gangsters using intimidation and implied threats of physicalharm to coerce confession from accused — Trial judge not erring in findingabuse of process and excluding resulting evidence.

Evidence –––– Confessions — General principles –––– Undercover police of-ficers posing as gangsters using intimidation and implied threats of physicalharm to coerce confession from accused — Trial judge not erring in findingabuse of process and excluding resulting evidence.

Victims’ rights and third party remedies –––– Publication bans –––– Crownbringing motion after appeal hearing for ban on publication of information iden-tifying undercover police officers — Officers’ identities had been in public do-main for almost a year without any identified risk of harm — Publication bannot appropriate in circumstances.

The accused was charged with being an accessory after the fact to murder. Shewas the target of a police undercover operation aimed at finding evidence relatedto a murder thought to have been committed by S.S., who was involved in drugtrafficking with the accused and several others. Two officers posing as membersof an outlaw motorcycle gang accosted the accused in a parking garage, orderedher back into her car and placed themselves on either side of her. They told herthey were there to clean up the mess left by S.S., that they knew there was a ratin the organization, and that they were concerned she was a rat. They then di-rected her to tell them what she had done with S.S. to help eliminate evidence ofthe murder and assist him to flee the jurisdiction. The accused, who testified thatshe felt threatened, immediately complied with their demands for information bymaking statements that incriminated herself and S.S. The officers then directedher to come with them and demonstrate what she and S.S. had done after themurder. She again complied and stayed with them for a whole day. The trialjudge found that the accused stayed with the officers and complied with their

CRIMINAL REPORTS 31 C.R. (7th)264

demands because she was frightened and intimidated by their implied threats ofphysical harm.

The trial judge found that the police conduct amounted to an abuse of processand excluded the evidence obtained from the undercover operation. The Crownoffered no further evidence and the accused was acquitted. The Crown appealed.

At the time of trial, there was a publication ban in effect that prohibited identifi-cation of the police witnesses involved in the undercover operation. That banexpired in May 2015. After the hearing of the appeal in March 2016, the Crownfiled a motion requesting a further ban on publishing information identifyingthree undercover officers for a period of two years.

Held: The appeal was dismissed and the acquittal was affirmed. The motion fora publication ban was dismissed.

The trial judge did not err in finding that the police conduct amounted to anabuse of process. The common law doctrine of abuse of process is available toassess whether police conduct crosses the line to conduct that would be harmfulto the integrity of the justice system. The abuse of process doctrine can apply topolice misconduct in Mr. Big operations, but it is not and should not be limitedto that context. A finding of abuse of process can be grounded on unacceptableuse of police tactics to coerce confessions, including threats of violence con-veyed expressly or by implication. The trial judge’s conclusion that the policeconduct amounted to an abuse of process was supported by clear, strong find-ings of fact that were themselves amply supported by the evidence. The accusedwas petrified by the demeanour and statements of the undercover officers, andshe complied with their demands because she did not feel she had a choice.While it might have been better for the trial judge to refer in his reasons to theaccused’s own involvement in drug trafficking, this omission did not erode hisanalysis or findings. A suspect who was or is involved in the criminal milieu isnot thereby robbed of the ability to complain if police use violence or threats tocoerce a confession.

The trial judge did not err in finding that exclusion of the evidence was an ap-propriate and just remedy. The trial judge concluded that a stay of proceedingwas unnecessary because the harm flowing from the police misconduct could beremedied by excluding the evidence obtained. The trial judge cannot be faultedfor failing to consider any other possible remedies for the abuse of process thatoccurred in this case. No other remedies were suggested by counsel, and nonewould address the harm to the integrity of the justice system if the Crown couldrely on evidence unfairly coerced by police. Courts cannot condone police con-duct that unfairly coerces a suspect into confessing. No matter how reliable theevidence obtained, a stay of proceedings or an order excluding the evidence willbe the appropriate remedy because of the impact on the integrity of the justicesystem.


This was not an appropriate case to impose a publication ban on appeal. The twopotential sources of authority to issue such a ban are s. 486.5 of the CriminalCode and the Court’s common law jurisdiction. At common law, a Court mustbe satisfied that a ban is necessary and the salutary effects outweigh its deleteri-ous effects. Section 486.5 does not expressly indicate that an appeal court hasthe power to impose an order under that section, and it is doubtful that appealcourts have this power. Whatever the legal source of the power to impose apublication ban, it is not a routine matter. Publication bans conflict with theopen court principle and with freedom of the press and expression, all of whichare of fundamental importance to a democratic society. In this case, the commonlaw test was not met and, even if s. 486.5 of the Code gives appellate courts thepower to make such orders, an order was not warranted under that section. Atthe time the Crown brought its motion for this further publication ban, there hadbeen no restriction on publication of the officers’ identities for almost a year.The information had been in the public domain with no identified or suggestedreal and substantial risk of harm from use of the officers’ names.

Cases considered by Beveridge J.A.:

Congregation des Temoins de Jehovah de St-Jerome-Lafontaine c. Lafontaine(Municipalite) (2004), 2004 SCC 48, 2004 CarswellQue 1545, 2004 Car-swellQue 1546, 323 N.R. 1, (sub nom. Congregation des temoins deJehovah de St-Jerome-Lafontaine v. Lafontaine (Village)) 241 D.L.R. (4th)83, 49 M.P.L.R. (3d) 157, [2004] S.C.J. No. 45, 17 Admin. L.R. (4th) 165,(sub nom. Congregation des temoins de Jehovah de St-Jerome-Lafontaine v.Lafontaine (Village)) [2004] 2 S.C.R. 650, 121 C.R.R. (2d) 261, REJB 2004-66514, 2004 CSC 48 (S.C.C.) — referred to

Dagenais v. Canadian Broadcasting Corp. (1994), 34 C.R. (4th) 269, 20 O.R.(3d) 816 (note), [1994] 3 S.C.R. 835, 120 D.L.R. (4th) 12, 175 N.R. 1, 94C.C.C. (3d) 289, 76 O.A.C. 81, 25 C.R.R. (2d) 1, 1994 CarswellOnt 112,1994 CarswellOnt 1168, [1994] S.C.J. No. 104, EYB 1994-67668, 20 O.R.(3d) 816 (S.C.C.) — followed

Edmonton Journal v. Alberta (Attorney General) (1989), [1990] 1 W.W.R. 577,[1989] 2 S.C.R. 1326, 64 D.L.R. (4th) 577, 102 N.R. 321, 71 Alta. L.R. (2d)273, 103 A.R. 321, 41 C.P.C. (2d) 109, 45 C.R.R. 1, 1989 CarswellAlta 198,1989 CarswellAlta 623, [1989] S.C.J. No. 124, EYB 1989-66926(S.C.C.) — referred to

Housen v. Nikolaisen (2002), 2002 SCC 33, 2002 CarswellSask 178, 2002 Car-swellSask 179, [2002] S.C.J. No. 31, 286 N.R. 1, 10 C.C.L.T. (3d) 157, 211D.L.R. (4th) 577, [2002] 7 W.W.R. 1, 219 Sask. R. 1, 272 W.A.C. 1, 30M.P.L.R. (3d) 1, [2002] 2 S.C.R. 235, REJB 2002-29758, 2002 CSC 33(S.C.C.) — referred to

L. (H.) v. Canada (Attorney General) (2005), 2005 SCC 25, 2005 CarswellSask268, 2005 CarswellSask 273, [2005] S.C.J. No. 24, 24 Admin. L.R. (4th) 1,8 C.P.C. (6th) 199, 251 D.L.R. (4th) 604, 333 N.R. 1, [2005] 8 W.W.R. 1,


262 Sask. R. 1, 347 W.A.C. 1, EYB 2005-89538, [2005] 1 S.C.R. 401, 29C.C.L.T. (3d) 1, REJB 2005-89538, 2005 CSC 25 (S.C.C.) — referred to

MacIntyre v. Nova Scotia (Attorney General) (1982), [1982] 1 S.C.R. 175, 49N.S.R. (2d) 609, 40 N.R. 181, 26 C.R. (3d) 193, 96 A.P.R. 609, 132 D.L.R.(3d) 385, (sub nom. Nova Scotia (Attorney General) v. MacIntyre) 65 C.C.C.(2d) 129, 1982 CarswellNS 21, 1982 CarswellNS 110, [1982] S.C.J. No. 1,[1982] A.C.S. No. 1 (S.C.C.) — referred to

R. c. Bellusci (2012), 2012 SCC 44, 2012 CarswellQue 7206, 2012 CarswellQue7207, [2012] S.C.J. No. 44, 348 D.L.R. (4th) 569, 94 C.R. (6th) 221, (subnom. R. v. Bellusci) 433 N.R. 135, (sub nom. R. v. Bellusci) 265 C.R.R. (2d)77, [2012] 2 S.C.R. 509, 293 C.C.C. (3d) 565 (S.C.C.) — considered

R. c. Laflamme (2015), 2015 QCCA 1517, EYB 2015-256752, 2015 Carswell-Que 8901, 23 C.R. (7th) 137, 2015 CarswellQue 13771 (C.A. Que.) —considered

R. c. Laflamme (2016), 2016 CarswellQue 3271, 2016 CarswellQue 3272,[2015] S.C.C.A. No. 479 (S.C.C.) — referred to

R. c. Piccirilli (2014), 2014 SCC 16, 2014 CarswellQue 575, 2014 CarswellQue576, [2014] S.C.J. No. 16, 367 D.L.R. (4th) 575, (sub nom. R. v. Babos) 8C.R. (7th) 1, (sub nom. R. v. Babos) 454 N.R. 86, 308 C.C.C. (3d) 445, 2014CSC 16, (sub nom. R. v. Babos) [2014] 1 S.C.R. 309, (sub nom. R. v. Babos)300 C.R.R. (2d) 153 (S.C.C.) — followed

R. c. Xenos (1991), 70 C.C.C. (3d) 362, 43 Q.A.C. 212, 1991 CarswellQue1025, [1991] A.Q. No. 2200, [1991] J.Q. No. 2200, 1991 CarswellQue 2008(C.A. Que.) — referred to

R. v. Allgood (2015), 2015 SKCA 88, 2015 CarswellSask 461, [2015] S.J. No.387, 327 C.C.C. (3d) 196, 23 C.R. (7th) 86, [2015] 12 W.W.R. 364, 465Sask. R. 120, 649 W.A.C. 120 (Sask. C.A.) — considered

R. v. Allgood (2016), 2016 CarswellSask 122, 2016 CarswellSask 123, [2015]S.C.C.A. No. 423 (S.C.C.) — referred to

R. v. Bjelland (2009), 2009 SCC 38, 2009 CarswellAlta 1110, 2009 Carswell-Alta 1111, 67 C.R. (6th) 201, [2009] 10 W.W.R. 387, 246 C.C.C. (3d) 129,391 N.R. 202, 10 Alta. L.R. (5th) 1, [2009] S.C.J. No. 38, 309 D.L.R. (4th)257, 460 A.R. 230, 462 W.A.C. 230, [2009] 2 S.C.R. 651, 194 C.R.R. (2d)148 (S.C.C.) — considered

R. v. Canada (Attorney General) (2014), 2014 ABCA 330, 2014 CarswellAlta1790, [2014] A.J. No. 1111, (sub nom. R. v. Ryan) 584 A.R. 145, (sub nom.R. v. Ryan) 623 W.A.C. 145 (Alta. C.A.) — followed

R. v. E. (O.N.) (2001), 2001 SCC 77, 2001 CarswellBC 2479, 2001 CarswellBC2480, 158 C.C.C. (3d) 478, 205 D.L.R. (4th) 542, 47 C.R. (5th) 89, 279 N.R.187, 97 B.C.L.R. (3d) 1, [2002] 3 W.W.R. 205, 160 B.C.A.C. 161, 261W.A.C. 161, [2001] 3 S.C.R. 478, [2001] S.C.J. No. 74 (S.C.C.) —considered


R. v. Grant (2009), 2009 SCC 32, 2009 CarswellOnt 4104, 2009 CarswellOnt4105, 66 C.R. (6th) 1, [2009] S.C.J. No. 32, [2009] A.C.S. No. 32, 245C.C.C. (3d) 1, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 391 N.R. 1, 253O.A.C. 124, [2009] 2 S.C.R. 353, 193 C.R.R. (2d) 1, 97 O.R. (3d) 318(note), EYB 2009-161617 (S.C.C.) — followed

R. v. Haevischer (2014), 2014 BCSC 2085, 2014 CarswellBC 3280, [2014]B.C.J. No. 2729 (B.C. S.C.) — referred to

R. v. Hart (2012), [2012] N.J. No. 303, 2012 NLCA 61, 2012 CarswellNfld 400,97 C.R. (6th) 16, 1015 A.P.R. 178, 327 Nfld. & P.E.I.R. 178, 266 C.R.R.(2d) 29 (N.L. C.A.) — considered

R. v. Hart (2014), 2014 SCC 52, 2014 CSC 52, 2014 CarswellNfld 215, 2014CarswellNfld 216, [2014] S.C.J. No. 52, [2014] A.C.S. No. 52, 12 C.R. (7th)221, 375 D.L.R. (4th) 1, 312 C.C.C. (3d) 250, 461 N.R. 1, 1099 A.P.R. 222,353 Nfld. & P.E.I.R. 222, [2014] 2 S.C.R. 544, 316 C.R.R. (2d) 317(S.C.C.) — followed

R. v. Jewitt (1985), [1985] 2 S.C.R. 128, [1985] 6 W.W.R. 127, 20 D.L.R. (4th)651, 61 N.R. 159, 21 C.C.C. (3d) 7, 47 C.R. (3d) 193, 1985 CarswellBC813, [1985] S.C.J. No. 53, 1985 CarswellBC 743 (S.C.C.) — considered

R. v. Johnston (2016), 2016 BCCA 3, 2016 CarswellBC 3, [2016] B.C.J. No. 3,26 C.R. (7th) 147, 381 B.C.A.C. 1, 659 W.A.C. 1, 333 C.C.C. (3d) 555(B.C. C.A.) — referred to

R. v. Mack (1988), [1989] 1 W.W.R. 577, [1988] 2 S.C.R. 903, 90 N.R. 173, 67C.R. (3d) 1, 37 C.R.R. 277, 44 C.C.C. (3d) 513, 1988 CarswellBC 701, 1988CarswellBC 767, [1988] S.C.J. No. 91 (S.C.C.) — referred to

R. v. Mack (2014), 2014 SCC 58, 2014 CSC 58, 2014 CarswellAlta 1701, 2014CarswellAlta 1702, [2014] S.C.J. No. 58, [2014] A.C.S. No. 58, 13 C.R.(7th) 225, 462 N.R. 380, 377 D.L.R. (4th) 412, 315 C.C.C. (3d) 315, [2014]3 S.C.R. 3, 580 A.R. 41, 620 W.A.C. 41, 319 C.R.R. (2d) 108, 4 Alta. L.R.(6th) 1 (S.C.C.) — considered

R. v. Mentuck (2001), 2001 SCC 76, 2001 CarswellMan 535, 2001 CarswellMan536, 158 C.C.C. (3d) 449, 205 D.L.R. (4th) 512, [2001] S.C.J. No. 73, 47C.R. (5th) 63, 277 N.R. 160, [2002] 2 W.W.R. 409, 163 Man. R. (2d) 1, 269W.A.C. 1, [2001] 3 S.C.R. 442 (S.C.C.) — followed

R. v. Nasogaluak (2010), 2010 SCC 6, 2010 CarswellAlta 268, 2010 Carswell-Alta 269, 90 M.V.R. (5th) 1, 251 C.C.C. (3d) 293, [2010] 4 W.W.R. 1, 72C.R. (6th) 1, [2010] S.C.J. No. 6, 469 A.R. 395 (note), 470 W.A.C. 395(note), 315 D.L.R. (4th) 193, 19 Alta. L.R. (5th) 1, 398 N.R. 107, 474 A.R.88, 479 W.A.C. 88, [2010] 1 S.C.R. 206, 206 C.R.R. 100 (S.C.C.) — re-ferred to

R. v. Nguyen (2015), 2015 ABQB 676, 2015 CarswellAlta 2337, [2015] A.J. No.1411 (Alta. Q.B.) — referred to

R. v. O’Connor (1995), [1996] 2 W.W.R. 153, [1995] 4 S.C.R. 411, 44 C.R.(4th) 1, 103 C.C.C. (3d) 1, 130 D.L.R. (4th) 235, 191 N.R. 1, 68 B.C.A.C. 1,


112 W.A.C. 1, 33 C.R.R. (2d) 1, 1995 CarswellBC 1098, 1995 CarswellBC1151, [1995] S.C.J. No. 98, EYB 1995-67073 (S.C.C.) — considered

R. v. Randle (2016), 2016 BCCA 125, 2016 CarswellBC 682, [2016] B.C.J. No.526, 384 B.C.A.C. 243, 663 W.A.C. 243 (B.C. C.A.) — referred to

R. v. Regan (2002), 2002 SCC 12, 2002 CarswellNS 61, 2002 CarswellNS 62,161 C.C.C. (3d) 97, 209 D.L.R. (4th) 41, 282 N.R. 1, 49 C.R. (5th) 1, [2002]S.C.J. No. 14, 201 N.S.R. (2d) 63, 629 A.P.R. 63, 91 C.R.R. (2d) 51, [2002]1 S.C.R. 297, REJB 2002-27926 (S.C.C.) — considered

R. v. Ryan (2013), 2013 SCC 3, 2013 CarswellNS 7, 2013 CarswellNS 31,[2013] S.C.J. No. 3, 290 C.C.C. (3d) 477, 353 D.L.R. (4th) 387, 98 C.R.(6th) 223, 438 N.R. 80, 1029 A.P.R. 205, 324 N.S.R. (2d) 205, 275 C.R.R.(2d) 241, [2013] 1 S.C.R. 14 (S.C.C.) — considered

R. v. Shirose (1999), 1999 CarswellOnt 948, 1999 CarswellOnt 949, (sub nom.R. v. Campbell) 237 N.R. 86, 133 C.C.C. (3d) 257, (sub nom. R. v. Camp-bell) 42 O.R. (3d) 800 (note), 171 D.L.R. (4th) 193, [1999] S.C.J. No. 16,(sub nom. R. v. Campbell) 119 O.A.C. 201, (sub nom. R. v. Campbell) 43O.R. (3d) 256 (note), 24 C.R. (5th) 365, (sub nom. R. v. Campbell) [1999] 1S.C.R. 565 (S.C.C.) — referred to

R. v. Singh (2013), 2013 ONCA 750, 2013 CarswellOnt 17266, [2013] O.J. No.5727, 118 O.R. (3d) 253, 7 C.R. (7th) 299, 313 O.A.C. 248, 305 C.C.C. (3d)78, 298 C.R.R. (2d) 1 (Ont. C.A.) — referred to

R. v. Sipes (2011), 2011 BCSC 1329, 2011 CarswellBC 3885, [2011] O.J. No.2739 (B.C. S.C.) — referred to

R. v. Tran (2010), 2010 ONCA 471, 2010 CarswellOnt 4504, 257 C.C.C. (3d)18, 76 C.R. (6th) 307, 264 O.A.C. 125, 213 C.R.R. (2d) 145, 103 O.R. (3d)131, [2010] O.J. No. 2785 (Ont. C.A.) — referred to

United States v. Cobb (2001), 2001 SCC 19, 2001 CarswellOnt 964, 2001 Cars-wellOnt 965, [2001] S.C.J. No. 20, 152 C.C.C. (3d) 270, 197 D.L.R. (4th)46, 41 C.R. (5th) 81, 267 N.R. 203, 145 O.A.C. 3, [2001] 1 S.C.R. 587, 81C.R.R. (2d) 226, REJB 2001-23417 (S.C.C.) — considered

Statutes considered:

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11

Generally — referred tos. 7 — considereds. 24 — considereds. 24(1) — considereds. 24(2) — considered

Criminal Code, R.S.C. 1985, c. C-46Generally — referred toPt. XV — referred toPt. XXI — referred tos. 2 “justice” — considered

R. v. Derbyshire Beveridge J.A. 269

s. 2 “provincial court judge” — considereds. 240 — referred tos. 482 — referred tos. 486 [am. 2015, c. 20, s. 21] — considereds. 486(1) [rep. & sub. 2015, c. 20, s. 21(1)] — considereds. 486(4.1) [en. 1999, c. 25, s. 2(3)] — considereds. 486(4.7) [en. 1999, c. 25, s. 2(3)] — considereds. 486.1 [en. 2005, c. 32, s. 15] — referred tos. 486.2 [en. 2005, c. 32, s. 15] — referred tos. 486.3 [en. 2005, c. 32, s. 15] — referred tos. 486.4 [en. 2005, c. 32, s. 15] — referred tos. 486.5 [en. 2005, c. 32, s. 15] — considereds. 486.5(1) [en. 2005, c. 32, s. 15] — considereds. 486.5(4) [en. 2005, c. 32, s. 15] — considereds. 486.5(7)(b) [en. 2005, c. 32, s. 15] — considereds. 679 — referred tos. 683 — referred to

Criminal Code (Protection of Children and other Vulnerable Persons) and theCanada Evidence Act, Act to amend the, S.C. 2005, c. 32

Generally — referred to

Rules considered:

Civil Procedure Rules, N.S. Civ. Pro. Rules 2009R. 90 — consideredR. 90.37(12)(d) — consideredR. 90.37(15) — consideredR. 91 — referred toR. 91.02 — considered

APPEAL by Crown from acquittal on charges of being accessory after fact tomurder.

Jennifer MacLellan, Q.C., for AppellantPatrick MacEwen, Jonathan Hughes, for Respondent

Beveridge J.A.:

INTRODUCTION1 Police investigative techniques have evolved to catch criminals. One

Canadian innovation is the “Mr. Big” operation. Police pretend to becriminals. They befriend a suspect. For the suspect to gain membershipor advance in the fictional criminal organization, he or she must confess


details of a crime to the crime boss, Mr. Big. The confession is then usedagainst the suspect.

2 The Supreme Court of Canada in R. v. Hart, 2014 SCC 52 (S.C.C.)created a new legal paradigm to address the forensic dangers posed by a“successful” Mr. Big operation.

3 This appeal is not directly about a Mr. Big operation. Here, under-cover police officers pretended to be members of an outlaw motorcyclegang (OMG). Originally, the police planned that when the undercoverofficers confronted the respondent she would contact the real target,Steven Skinner. Their conversations would be intercepted. Informationwould be obtained as to Skinner’s whereabouts so that he could bearrested.

4 The original plan never got off the ground. When the two “gangmembers” confronted the respondent, she felt threatened. She said shewas held against her will for a whole day. The officers directed her to tellthem, and then demonstrate, what she had done to assist Skinner to getrid of evidence and enable him to escape from the jurisdiction. Shecomplied.

5 The police operation gained no evidence to assist them in the arrest ofMr. Skinner. Instead, the police charged the respondent with being acces-sory after the fact to murder. The respondent claimed that the police con-duct violated her rights under the Canadian Charter of Rights and Free-doms, or amounted to an abuse of process. She asked that the prosecutionbe stayed or the evidence obtained excluded.

6 The trial judge was the Honourable Justice Michael J. Wood. He dis-missed the Charter motion and declined to stay the proceedings. How-ever, relying on the principles in R. v. Hart, Justice Wood was satisfiedthat the conduct of the police amounted to an abuse of process. By wayof remedy, he ordered the evidence obtained by the police excluded. TheCrown offered no further evidence, and the respondent was acquitted.

7 The Crown appeals, claiming that the trial judge erred in law in anumber of ways on the road to his finding an abuse of process and by theremedy of evidence exclusion. I agree that the analytical path chosen bythe trial judge may be open to debate. However, I am not satisfied thatthe path makes any difference to the soundness of his ultimate conclu-sion that courts cannot condone the conduct that he found the police en-gaged in, nor in the remedy he granted.


8 The Crown applies for an order banning publication of the names ofthe undercover officers and any information that could disclose theiridentity. I will discuss the history and outcome of this applicationseparately.

9 To understand the Crown’s complaints, it is necessary to review thetrial proceedings and the sometimes difficult jurisprudential terrain cre-ated when courts are called on to determine if police conduct warrants aremedy.

TRIAL PROCEEDINGS10 First, some background. Stacey Adams was murdered on April 10,

2011. Jeff Belanger and Crystal Stephens gave statements that implicatedSteven Skinner as the principal in that homicide and in two other shoot-ings. Skinner was nowhere to be found. Police believed that he had fledthe country with the assistance of one or more persons. The police ob-tained authorization to intercept communications. The authorization didnot yield results.

11 The lead investigator, D/Cst. Steven Langille, proposed a “minor un-dercover operation”. The purpose was to “strictly stimulate conversa-tion” amongst seven named subjects. Undercover officers would pose asmembers of an OMG. Phase One would have the officers visiting estab-lishments known to be frequented by the subjects of the operation. InPhase Two, scenarios would be developed for the officers to meet someof the subjects to further elevate stress levels and stimulate conversation.

12 The operation was approved. But when members of the RCMP ar-rived in Halifax to carry out the undercover operation, a somewhat dif-ferent plan was developed. Sgt. Chubbs was the “cover” officer. He wasin charge of implementing the undercover operation. He proposed thattwo undercover officers carry out a one-time approach of the respondent,Brittany Derbyshire. This would occur in a public place, giving her theopportunity to walk away.

13 Sgt. Chubbs described what he planned and hoped for: Details I provided them [the undercover officers] was a little morethan, again, I would normally provide. However, the reason why itwas given in more detail, My Lord, is that this was a one-time oppor-tunity to approach Derbyshire. One of two things ... and this is, again,based on my experience. So, based on my experience, one of twothings were going to happen. Ms. Derbyshire was going to walkaway from us and have no dealings with us when we approached her


in a public place and tell us to get lost and leave. That’s one thingthat happens.

The second thing that’ll happen is that she believed the cover storyand that she reaches out and makes contact to somebody on thattargeted list. And, in particular, we wanted her to call Steve Skinner.So those were kind of the anticipated results. So they had to have allthe details of the offence in case ... the other thing would be what Icall an “off chance” that Brittany Derbyshire tells us everything.

14 The two officers that carried out the operation were personally chosenby Sgt. Chubbs. They were French Canadian. They would pose as mem-bers of an OMG from Montreal. He had confidence that they could carryoff the role as members of an OMG. His faith in the authenticity of theirassumed persona was not misplaced. If anything, their performance wastoo good, and not carried out as envisaged by Sgt. Chubbs.

15 The two undercover officers did not meet the respondent in a publicplace. They parked their rented SUV outside of her apartment building.When she drove her car inside, they followed on foot. They demandedshe get back into her small car. One sat beside her. The other officerblocked her ability to get out of the car. The evidence from the officersand the respondent differed. I will describe it in more detail later.

16 For now, it is sufficient to say that the respondent told them that shehad helped Skinner dispose of evidence and get to the airport in Monc-ton, knowing that he had committed murder. A charge followed of beingan accessory after the fact to murder (s. 240 of the Criminal Code). Al-most a year in advance of her scheduled jury trial, the respondentbrought a motion requesting a stay of proceedings on the basis that thepolice conduct violated her right to silence and self-incrimination unders. 7 of the Canadian Charter of Rights and Freedoms, or amounted to anabuse of process. Alternatively, the evidence obtained should be ex-cluded under s. 24(2) of the Charter.

17 Evidence was called at a voir dire, June 23-27, 2014. The respondenttestified. The Crown called five police officers. Detailed oral submis-sions were made on July 25 and October 1, 2014. In addition, the partiesfiled written briefs before and after the evidentiary portion of the voirdire. The importance of the submissions will become clear later. First, Iwill refer to the substance of the evidence, the submissions made, and thetrial judge’s reasons.


The evidence18 In the summer of 2011, the respondent was 23 years old. For six

years, she worked in sales and promotion, and more lately as a server.She lived alone in a large apartment building in Lower Sackville, NovaScotia.

19 In her teens, the respondent had dated one Ryan Belanger. Ryan’solder brother, Jeff, was involved in the drug trade. As she and Ryan gotolder, they also became involved. The evidence was not precise abouthierarchy and roles, but Steven Skinner was also involved with the Be-langers in trafficking cocaine. The respondent met Skinner when she was21 years of age.

20 In 2011, Ryan Belanger lived in Toronto. The respondent assistedhim in his drug trafficking activities by relaying messages to associates.She also collected debts and, at the very least, transported money. Shewas aware of the use of violence in the drug trafficking business, but hadnot witnessed any. Both Ryan Belanger and Steven Skinner were bigmen, who wore high-end designer clothes to emanate tough guypersonas.

21 On July 13, 2011, the respondent had spent the night at a friend’sapartment. She returned home on July 14, 2011. She used her passcard toopen the underground parking door. Parked outside was a black Subur-ban with two occupants — the undercover officers.

22 The lead officer was Cpl. Patrick Isabelle. His partner was a largerman, Sgt. Daniel Perron. Both were dressed as members of an OMG,wearing high-end tough guy clothes and gold jewellery. The evidence ofthe respondent and the undercover officers differed in some details, anddefinitely in perspective.

23 There is some commonality. The officers purposely acted aggres-sively toward the respondent. They ordered her back into her car. Cpl.Isabelle sat next to her; his partner blocked her exit.

24 According to the respondent, Cpl. Isabelle grabbed her by the wrist toput her into the car. She said she was petrified. Cpl. Isabelle explainedthat they were in Halifax to deal with the mess made by Skinner. Therewas a rat. They were there to get rid of Jeff, make him disappear. Shecould be an asset for them, but they were scared that she was a rat. Shecould not get out of the car. She said she felt she had no choice or theywould think she was a problem that they would need to get rid of.


25 The respondent told them that she had driven Skinner to the Monctonairport. They asked if she knew where the gun was. She said she did.Cpl. Isabelle told her she was going to Moncton. The respondent said shehad to work. Cpl. Isabelle said work was cancelled, she was going withthem. They left the garage. The respondent was escorted to the blackSUV with tinted windows. She was placed in the rear with Cpl. Isabelle.Sgt. Perron was the driver.

26 Cpl. Isabelle instructed her to turn off her phone. She was not permit-ted to use it. When she needed to send a text to explain her absence fromwork, they vetted the content first. Cpl. Isabelle spoke English with herand French with Sgt. Perron.

27 The black SUV stopped in Oxford, Nova Scotia on the way to Monc-ton. The respondent was never left alone. Once in Moncton, she tookthem to where she said the gun was disposed of. When they stopped forfood, the officers ordered. The respondent did not eat. When she went tothe washroom, they took her cell phone from her.

28 On the way back to Lower Sackville, she took them to a site whereshe said she had burned the clothes that Skinner had worn. Once back ather apartment building, Cpl. Isabelle demanded that she give them theclothes she had worn the day she had helped Skinner. She said she wouldgo get them and return.

29 That was not an option. Cpl. Isabelle told her they were coming withher. Once in the apartment, the officers examined and commented on thepersonal photographs of her family. Once again, she felt frightened andscared for herself and other people.

30 Inside the apartment, Cpl. Isabelle wrote a number down for her andtold her to call at 1:00 p.m. the next day — if she was a minute late, or ifshe decided to disappear, they told her that money talks and they couldpay people to find her.

31 The respondent called the next day. Cpl. Isabelle was very upset. Shewas five minutes late. He instructed her to call back at 6:00 p.m. andhung up. The reason for the delay was that he wanted more time to set upa wiretap authorization to capture her comments electronically. Shecalled, but explained that she had to work and was then going to leaveNova Scotia. She did not speak to them again.

32 Much of what the respondent described was confirmed by the evi-dence of the undercover officers, but with a different perspective. Cpl.Isabelle emphasized that the main objective of an undercover officer is to


obtain admissible evidence for court. Neither he, nor Sgt. Perron, men-tioned that the object of this operation was to generate electronic com-munications which could be intercepted.

33 Cpl. Isabelle explained that the strategy was to confront the respon-dent with investigational facts and demand to know what had happened,so they can clean up loose ends or mess from the crime. He intended tomeet her, not in a public place, but somewhere he could be alone withher.

34 Dressed as a member of an OMG, Cpl. Isabelle described his ap-proach and initial interaction with the respondent. He told her that theyneeded to “fucking talk with her” and ordered her back into her car. Hedenied touching her, but agreed that he sat uninvited in the passengerseat, while Sgt. Perron stood at the driver’s window, blocking her abilityto exit. In an aggressive tone, he told her that business had gone to shitsince the murder, they knew there was a rat, and they were sent by thehigher ups from out West to clean up the mess. While still being aggres-sive, he demanded that she had better be honest with him, and “no fuck-ing bullshit”. He never said what would happen to her if she was nothonest with him.

35 Cpl. Isabelle said he was surprised as the respondent immediatelyagreed that there was a “rat”, business had been bad, and told him whatshe had done to assist Skinner to escape. She drew crude maps to demon-strate, and when asked by Isabelle to show them, simply agreed to do so.

36 According to Cpl. Isabelle, once she started talking in the under-ground garage, he stopped being aggressive and simply elicited informa-tion in a normal manner. He ensured she was not afraid. He asked her, atleast three times, when in the SUV, whether she was afraid. She said shewas not.

37 Cpl. Isabelle admitted he turned overtly aggressive with the respon-dent in the SUV as they were returning to her apartment building. Thiswas in relation to his demand that she turn over the clothes she wore, andon the way to the apartment he said, “You better fucking not talk toanybody.”

38 Sgt. Perron’s evidence added little to what was already known. Hesaid they were asked to approach the respondent and try to get as muchinformation from her as they could. He played the role of driver or assis-tant. He really said nothing to the respondent.


39 Sgt. Perron’s evidence was noticeably vague in a number of areas,and wavered between direct and cross-examination. Sgt. Perron con-ceded that he did not have a strong recollection of the events. He agreedthat Cpl. Isabelle, in order to impersonate who he was supposed to be,raised his voice “a bit”. He also agreed that, in their role as bad guys,they had moved quickly toward the respondent, Cpl. Isabelle had openedthe car door and told her to get back in, and indeed had put his hand onher arm and guided her in the process. She appeared to be frightened atthe very beginning.

40 After ten minutes, he described the respondent as relaxed and normal.She agreed to draw a map and take them to Moncton. He recalled thatCpl. Isabelle had raised his voice on a number of occasions in theSUV — insisting that she not lie to them. And she was not free to use herphone. He and Cpl. Isabelle had spent 7.5 hours playing bikers.

The submissions41 The respondent filed a brief on April 11, 2014. She alleged that her s.

7 rights to silence and self-incrimination were infringed, and her rightswere also breached by the failure of the police to record the interchangebetween her and the undercover officers. Further, that the police conductamounted to an abuse of process. The remedy requested was a stay ofproceedings or that the evidence be excluded under s. 24(2) of theCharter.

42 The Crown responded with its brief on May 1, 2014. It contended thatthe respondent’s arguments must fail factually and legally. The respon-dent was not in police custody; she was not detained; there were nothreats of violence; nor was there any pronounced emotional or psycho-logical pressure.

43 Apart from the majority reasons of the Newfoundland Court of Ap-peal in R. v. Hart, 2012 NLCA 61 (S.C.C.), the authorities did not extendthe right to silence to pre-detention situations. Hart had been arguedbefore the Supreme Court and was on reserve. The Crown predicted itwould not stand.

44 On July 25, 2014, oral submissions were made. The respondent ar-gued that she had been detained. She was afraid of being labelled a “rat”by the OMG. It was fear that made her talk to the undercover officers.She was told where to sit and what to do. She had no realistic ability toleave. She was physically and psychologically detained. Both factually


and legally, the conduct of the police infringed her rights. The proceed-ings should be stayed or the evidence excluded.

45 The Crown conceded that the officers’ initial approach to the respon-dent was forceful. Foul language was used, and the tone of voice used byCpl. Isabelle was to preserve his credibility for the role he was playing.But after that initial approach, the exchange was very relaxed, with therespondent a willing participant.

46 The Crown also forcefully attacked the credibility of the respondent’sversion of the interrogation, including that given the evidence of her in-volvement in a drug trafficking network, she should not have been sur-prised or shocked by the officers’ demeanour and statements.

47 Six days after oral submissions, the Supreme Court of Canada re-leased R. v. Hart, 2014 SCC 52 (S.C.C.). The majority established a newtwo-pronged approach to the admissibility of confessions generated by aMr. Big operation. The evidence is presumptively inadmissible. TheCrown must establish that the probative value outweighs the prejudicialeffect of the evidence. But, regardless of the reliability of the confession,if the accused establishes that the police crossed the line from skillfulpolice work to abusive conduct that unfairly coerces a confession, a stayof proceedings or exclusion of evidence could result.

48 The trial judge invited the parties to make submissions in light of R.v. Hart.

49 The Crown filed written submissions on September 12, 2014. It ar-gued that the new Hart considerations did not apply as the undercoveroperation was not a Mr. Big scenario. The Crown agreed that the law onabuse of process doctrine had not changed. The doctrine was meant to“guard against state conduct that society finds unacceptable, and whichthreatens the integrity of the justice system”. In this case, it argued therewere no threats, violence, or inducements. The police did not prey on anyvulnerabilities unique to the respondent.

50 The respondent’s brief of September 22, 2014 submitted that al-though the operation conducted in this case was not a classic Mr. Bigoperation, it was nonetheless a truncated version of one. Hence, the sameprinciples should apply to place the burden on the Crown to establishadmissibility.

51 In addition, regardless of the reliability of the alleged inculpatory re-marks and outcome of a balancing of the probative value against prejudi-cial effect, the conduct of the police amounted to an abuse of process.


The respondent relied on the principles outlined in Hart by JusticeMoldaver, writing for the majority, where he said:

[115] It is of course impossible to set out a precise formula for deter-mining when a Mr. Big operation will become abusive. These opera-tions are too varied for a bright-line rule to apply. But there is oneguideline that can be suggested. Mr. Big operations are designed toinduce confessions. The mere presence of inducements is not prob-lematic (Oickle, para. 57). But police conduct, including inducementsand threats, becomes problematic in this context when it approxi-mates coercion. In conducting these operations, the police cannot bepermitted to overcome the will of the accused and coerce a confes-sion. This would almost certainly amount to an abuse of process.

[116] Physical violence or threats of violence provide examples ofcoercive police tactics. A confession derived from physical violenceor threats of violence against an accused will not be admissible — nomatter how reliable — because this, quite simply, is something thecommunity will not tolerate (see, e.g., R. v. Singh, 2013 ONCA 750,118 O.R. (3d) 253).

52 Both parties expressed a desire to appear in person and make oralsubmissions. They did so on October 1, 2014. There is no need to recitethose submissions.

Trial Judge’s Reasons53 The trial judge set out the background, the relevant evidence, and the

positions of the parties. He then turned to his analysis, which focussedon R. v. Hart and R. v. Mack, 2014 SCC 58 (S.C.C.). The trial judgereasoned that the respondent was not subject to a Mr. Big operation. As aresult, the new rule of evidence established in R. v. Hart placing the onusof admissibility on the Crown did not apply.

54 On the other hand, there were aspects of the Supreme Court’s reasonsthat informed his analysis. First, (unlike the Newfoundland Court of Ap-peal, and Justice Karakatsanis in Hart), Justice Moldaver refused to ex-tend the s. 7 right against self-incrimination to undercover police opera-tions. Part of Justice Moldaver’s rationale was the availability of thecommon law doctrine of abuse of process to deal with allegations of po-lice misconduct.

55 This led the trial judge to conclude the s. 7 right to silence had noapplication, the respondent’s allegations of police misconduct were leftto be assessed under the doctrine of abuse of process.


56 The trial judge also decided that the failure by the police to recordtheir exchange with the respondent did not breach her right to make fullanswer and defence.

57 Turning to the doctrine of abuse of process, the trial judge acceptedthe guidance offered by Justice Moldaver in R. v. Hart, where he wrote:

[86] Second, I would rely on the doctrine of abuse of process to dealwith the problem of police misconduct. I recognize that the doctrinehas thus far proved less than effective in this context. While the prob-lem is not an easy one, I propose to provide some guidance on howto determine if a Mr. Big operation crosses the line from skillful po-lice work to an abuse of process.

58 The trial judge quoted a number of other paragraphs from the reasonsof Justice Moldaver (these included paras. 115 and 116, see above at ¶51). He also recited:

[117] Violence and threats of violence are two forms of unacceptablecoercion. But Mr. Big operations can become coercive in other waysas well. Operations that prey on an accused’s vulnerabilities — likemental health problems, substance addictions, or youthfulness — arealso highly problematic (see Mack, at p. 963). Taking advantage ofthese vulnerabilities threatens trial fairness and the integrity of thejustice system. As this Court has said on many occasions, misconductthat offends the community’s sense of fair play and decency willamount to an abuse of process and warrant the exclusion of thestatement.

[118] While coercion is an important factor to consider, I do not fore-close the possibility that Mr. Big operations can become abusive inother ways. The factors that I have outlined, while not identical, aresimilar to those outlined in Mack, with which trial judges are well-familiar (p. 966). At the end of the day, there is only so much gui-dance that can be provided. Our trial judges have long been entrustedwith the task of identifying abuses of process and I have no reason todoubt their ability to do the same in this context.

59 The trial judge observed that confessions unfairly coerced by under-cover police officers would likely lead to a finding of abuse of process.He cited violence and threats of violence as obvious examples of unfaircoercion. He saw no reason to limit these principles to Mr. Big opera-tions:

[74] With confessions to undercover police officers the use of tech-niques which unfairly coerce those admissions will likely lead to afinding of abuse of process. Violence and threats of violence are ob-vious examples. Unlike the new evidentiary rule, there is no logical


reason to limit Justice Moldaver’s comments on abuse of process tocases involving “Mr. Big” confessions.

60 The trial judge then turned to the evidence. He noted there were dis-crepancies. A number of key findings of fact were made. In essence, thetrial judge accepted the evidence of the respondent. He was satisfied thatthe reason she told them what had happened was the result of fear andintimidation, not as the Crown had argued, because of her desire to helpthe criminal operators from Montreal.

61 His key findings are found in the following paragraphs: [80] Understandably, Ms. Derbyshire completely believed that theundercover operators were gangsters from Montreal. When they ap-proached her in the underground parking garage the officers were in-timidating. They moved aggressively and Corporal I. raised hisvoice, pointed his finger and ordered Ms. Derbyshire into her car.Ms. Derbyshire did as she was told and found herself confined byCorporal I. in the passenger seat and Sergeant P. outside the driver’sdoor. These were very close quarters and Corporal I. continued tospeak to her aggressively, waving his finger and demanding that shetell them about her involvement in the Adams’ homicide. She did soimmediately and I am satisfied, based upon her testimony, that itwas the result of fear and intimidation and not a willingness tohelp these “criminals” from Montreal.

. . .

[86] The undercover operators intended to create an intimidating andthreatening environment for Ms. Derbyshire and they were success-ful in doing so. She said she was frightened and I have no doubtthat she was. There was a very strong implied threat of physicalharm to her if she did not give the “gangsters” what they wereafter. The fact that she gave incriminating information, implicat-ing both herself and Mr. Skinner, in such a short period of timeconfirms the nature of the atmosphere which had been created.

[87] The situation faced by Ms. Derbyshire should be contrasted withthose encountered by Messrs. Hart and Mack who were given clearchoices about whether to confess. They were not subject to threats,intimidation or coercion.

[88] Once the confession and other information was given by Ms.Derbyshire and she was told to show the officers the physical evi-dence, the rest of the day unfolded as one would expect. Corporal I.intended to maintain control of the situation, and over Ms. Derby-shire, and he did so. While the tension may have diminished some-what, that does not make Ms. Derbyshire’s subsequent actions or


statements any more voluntary. Once she had disclosed the signifi-cant information concerning the Adams’ murder confirming it in sub-sequent discussions, or providing further details is part of one contin-uous transaction.

[89] I am satisfied that the actions of Corporal I. and Sergeant P.resulted in the type of unfair coercion described by JusticeMoldaver in Hart. Ms. Derbyshire’s confession and identificationof physical evidence was obtained by intimidation and impliedthreats of harm. She was never given a choice which would havepermitted her to walk away without disclosure. This was anabuse of process.

[Emphasis added]

62 The trial judge then considered what remedy should follow. He di-rected himself that a stay of proceedings for an abuse of process shouldrarely be granted. It required “the clearest of cases”. The judge was onfirm territory. He cited and relied on the latest recitation of the governingprinciples set out in R. c. Piccirilli, 2014 SCC 16(S.C.C.) [hereinafter Babos].

63 The trial judge recognized that there are two categories of abusivestate conduct that may warrant a stay: the main category, where the con-duct compromises the fairness of an accused’s trial; and the residual cat-egory, where there has been conduct that risks undermining the integrityof the judicial process.

64 There was no suggestion that trial fairness had been undermined. Hisfocus was, therefore, on the residual category. For that category, the trialjudge relied on the direction from the majority reasons for judgmentpenned by Moldaver J. in Babos, where he explained the three stage testto obtain a stay of proceedings for the residual category.

65 In relation to the first stage of the test for the residual category, theinquiry is whether permitting a trial would leave the impression that thejustice system condones conduct that offends society’s sense of fair playand decency and would be harmful to the integrity of the justice system:

[35] By contrast, when the residual category is invoked, the questionis whether the state has engaged in conduct that is offensive to socie-tal notions of fair play and decency and whether proceeding with atrial in the face of that conduct would be harmful to the integrity ofthe justice system. To put it in simpler terms, there are limits on thetype of conduct society will tolerate in the prosecution of offences.At times, state conduct will be so troublesome that having a trial —even a fair one — will leave the impression that the justice system


condones conduct that offends society’s sense of fair play and de-cency. This harms the integrity of the justice system. In these kindsof cases, the first stage of the test is met.

66 At the second stage, the question is whether any other remedy shortof a stay is capable of redressing the prejudice. If still uncertain if a stayis appropriate, the court turns to the third part of the test, which requiresthe court to engage in a balancing of interests between denouncing themisconduct and preserving the integrity of the justice system, against so-ciety’s interest in having a decision on the merits.

67 The trial judge said he considered all of these factors and was notsatisfied that a stay of proceedings was required or appropriate. Instead,he found that the harm could be remedied by excluding the evidence thepolice obtained. He wrote:

[93] When I consider all of these factors I am not satisfied that a stayof proceedings is required or appropriate. While the misconduct inthis case could be categorized as offensive to notions of fair play anddecency, I am satisfied that the harm can be remedied by excludingthe evidence which was obtained. This would include the statementsmade by Ms. Derbyshire to the undercover operators as well as thephysical evidence and its locations which she identified. By doing so,the Court distances itself from the impugned conduct and at the sametime recognizes the importance of having this serious charge tried onits merits.

68 With this background, I turn to the appellant’s complaints of error.69 The Crown asserts that the trial judge erred because he: failed to se-

lect and apply the proper test for an abuse of process; erred in law infinding an abuse of process; and excluded evidence as a remedy. Theprecise words set out in its factum are:

1. The trial judge erred in law by failing to consider the proper testfor finding an abuse of process.

2. The trial judge erred in law by failing to properly apply the test forabuse and erred in law by finding an abuse of process.

3. The trial judge erred in law by failing to consider the proper testfor exclusion of evidence as a remedy for a s. 24(1) Charterbreach and erred in law by finding that exclusion of evidence wasa just and appropriate remedy.

70 Given the overlap between the first two grounds, I will restructurethem as follows:


1. Did the trial judge fail to identify/apply the correct test for anabuse of process?

2. Did the trial judge err in law in finding an abuse of process?

3. Did the trial judge err in his approach or ultimate conclusion thatexclusion of the evidence was an appropriate and just remedy?

71 Before addressing the complaints of error, it is important to recognizethe standard of review that governs this Court’s analysis of the putativeerrors.

72 Whether a right guaranteed by the Canadian Charter of Rights andFreedoms has been infringed, or an abuse of process occurred, is a ques-tion of law. A trial judge is required to articulate and apply the correctlegal principles. A failure to do so will be reviewed on a standard ofcorrectness.

73 However, not everything that goes into deciding a question of lawattracts such a standard. Trial judges are frequently required to makefindings of fact that inform the ultimate legal question to be answered.Such findings of fact, or of mixed law and fact, without an extricablelegal component, are subject to deference and cannot be disturbed unlessthe trial judge made a palpable and overriding error (see Housen v. Niko-laisen, 2002 SCC 33 (S.C.C.), at paras. 25, 26 and 36).

74 I see no reason why this does not also apply generally to facts foundin a dispute over violation of rights (see Congregation des Temoins deJehovah de St-Jerome-Lafontaine c. Lafontaine (Municipalite), 2004SCC 48 (S.C.C.)). This imports an assessment of whether the finding isunreasonable or not supported by the evidence (see L. (H.) v. Canada(Attorney General), 2005 SCC 25 (S.C.C.)).

75 Justice Moldaver in Babos referred to the level of deference for theremedy selected by a trial judge for an abuse of process (under s. 24(1))as follows:

[48] The standard of review for a remedy ordered under s. 24(1) ofthe Charter is well established. Appellate intervention is warrantedonly where a trial judge misdirects him or herself in law, commits areviewable error of fact, or renders a decision that is “so clearlywrong as to amount to an injustice” (Bellusci, at para. 19; Regan, atpara. 117; Tobiass, at para. 87; R. v. Bjelland, 2009 SCC 38, [2009] 2S.C.R. 651, at paras. 15 and 51).


Did the trial judge fail to identify/apply the correct test for an abuse ofprocess?

76 The appellant set out the leading authorities on the common law doc-trine of abuse of process and its seeming assimilation within the frame-work of the Charter. To what end? The appellant says it delved into theissue because it was not clear whether the trial judge was applying acommon law or a Charter analysis, which would have had implicationsfor the burden of proof and the availability of various remedies.

77 In essence, the Crown contends that the common law doctrine ofabuse of process is subsumed by the Charter. The Crown says that thisrequired the trial judge to undertake a balancing exercise to determine ifthe state conduct amounted to an abuse of process (in addition to a bal-ancing exercise at the remedy stage). The trial judge did not do so, andhence committed legal error.

78 Further, the Crown suggests that the trial judge erred by lowering thestrict requirement to find an abuse of process when he said that the mis-conduct in this case “could be categorized as offensive to notions of fairplay and decency”.

79 Courts decide what they are asked to decide. In this case, the respon-dent asked the judge to find that the police conduct amounted to an in-fringement of her rights in two aspects: her right to remain silent under s.7 and by the failure of the police to record the communications. The lat-ter claim was rightly summarily rejected. The former was foreclosed bythe clear direction from the Supreme Court of Canada in R. v. Hart that s.7 of the Charter had no application in determining the admissibility ofconfessions induced by acts and conduct of undercover police officers.

80 It is not hard to understand the Crown’s position. But, with respect, itstems from a failure to keep separate the traditional remedy for conductfound to be abusive — a stay of proceedings — from the ability of a trialjudge to find abuse. It also fails to recognize that the common law doc-trine of abuse of process has not been entirely subsumed by the Cana-dian Charter of Rights and Freedoms.

81 It was not until R. v. Jewitt, [1985] 2 S.C.R. 128 (S.C.C.) that theSupreme Court clearly confirmed that courts could order a stay of crimi-nal proceedings as part of their inherent common law jurisdiction:

[25] I would adopt the conclusion of the Ontario Court of Appeal inR. v. Young, supra, and affirm that “there is a residual discretion in atrial court judge to stay proceedings where compelling an accused tostand trial would violate those fundamental principles of justice


which underlie the community’s sense of fair play and decency andto prevent the abuse of a court’s process through oppressive or vexa-tious proceedings”. I would also adopt the caveat added by the Courtin Young that this is a power which can be exercised only in the“clearest of cases”.

82 Little has changed. But state conduct that violates the fundamentalprinciples of justice is also likely to violate the rights guaranteed by theCanadian Charter of Rights and Freedoms. If it does, remedies are avail-able under s. 24.

83 If evidence has been “obtained in a manner” that infringed or deniedone or more Charter rights, then the tripartite test set out in R. v. Grant,2009 SCC 32 (S.C.C.) governs whether the Court must exclude the evi-dence to protect the administration of justice from disrepute pursuant tos. 24(2).

84 If the admissibility of evidence is not engaged, but rights have beeninfringed by state conduct, an accused can seek a remedy that is appro-priate and just under s. 24(1). The remedy can vary from the most drasticremedy, a stay of proceedings (limited to “the clearest of cases” (R. c.Bellusci, 2012 SCC 44 (S.C.C.))), to an adjournment of proceedings(with or without an award of costs), an exclusion of evidence and anorder for a new trial (R. c. Xenos (1991), 70 C.C.C. (3d) 362 (C.A. Que.)— either as a 24(1) remedy or for an abuse of process), or a reduction insentence should the accused be found guilty (R. v. Nasogaluak, 2010SCC 6 (S.C.C.)).

85 R. v. O’Connor, [1995] 4 S.C.R. 411 (S.C.C.) was the first SupremeCourt of Canada case that sought to clarify the relationship between thecommon law doctrine of abuse of process and the Charter. The majorityreasons were written by Justice L’Heureux-Dube. She identified the par-allels between state conduct that infringes rights or amounts to an abuseof the court’s process (paras. 60 et seq.), which led her to conclude:

[70] For these reasons, I conclude that the only instances in whichthere may be a need to maintain any type of distinction between thetwo regimes will be those instances in which the Charter, for somereason, does not apply yet where the circumstances neverthelesspoint to an abuse of the court’s process. Because the question is notbefore us, however, I leave for another day any discussion of whensuch situations, if they indeed exist, may arise. As a general rule,however, there is no utility in maintaining two distinct approaches toabusive conduct. The distinction is one that only lawyers could possi-bly find significant. More importantly, maintaining this somewhat ar-


tificial dichotomy may, over time, create considerably more confu-sion than it resolves.

86 This conclusion was echoed by Justice Major, in dissent: [197] I have read the reasons of Justice L’Heureux-Dube, and agreethat common law abuse of process has been subsumed in the Cana-dian Charter of Rights and Freedoms and should not be consideredseparately unless circumstances arise to which the Charter does notapply, which is not the case in this appeal. The party alleging abuseof process must prove on a balance of probabilities that a violation ofthe Charter has occurred. Upon proving this, a variety of remediesare available under s. 24(1).

87 Despite the attempt to limit the existence of the common law doctrineto instances where the Charter does not apply, the doctrine continued tobe turned to, sometimes as an alternative. For example in United States v.Cobb, 2001 SCC 19 (S.C.C.), Justice Arbour, writing for the Court, re-viewed the case law about abuse of process, the Charter, and the availa-bility of both to address abusive state conduct:

[40] The decision of Hawkins J. granting a stay of proceedings wastherefore justified, in my opinion, either as a remedy based on s. 7of the Charter or on the basis of the court’s inherent powers atcommon law to control its own process and prevent its abuse. Inthis case, the abuse of process was directly and inextricably related tothe committal hearing.

. . .

[52] By placing undue pressure on Canadian citizens to forego duelegal process in Canada, the foreign State has disentitled itself frompursuing its recourse before the courts and attempting to show whyextradition should legally proceed. The intimidation bore directlyupon the very proceedings before the extradition judge, thus engag-ing the appellants’ right to fundamental justice at common law,under the doctrine of abuse of process, and as also reflected in s.7 of the Charter. The extradition judge did not need to await a minis-terial decision in the circumstances, as the breach of the principles offundamental justice was directly and inextricably tied to the commit-tal hearing.

[53] In my view, the extradition judge had the jurisdiction to controlthe integrity of the proceedings before him, and to grant a remedy,both at common law and under the Charter, for abuse of process. ...

[Emphasis added]

(See also United States of America v. Shulman, 2001 SCC 21)


88 In R. v. Regan, 2002 SCC 12 (S.C.C.), the Court reiterated that, atleast, where the common law doctrine of abuse of process is concernedwith protecting society’s interest in a fair process the analysis under theCharter and the common law will dovetail (paras. 49-50).

89 Excessive use of force by police can ground a s. 7 infringement and astay of proceedings (R. v. Tran, 2010 ONCA 471 (Ont. C.A.); R. v.Singh, 2013 ONCA 750 (Ont. C.A.)), or a lesser remedy such as a reduc-tion in sentence (R. v. Nasogaluak, 2010 SCC 6 (S.C.C.)).

90 But, there are instances where state conduct does not necessarily en-gage the Charter, but the common law abuse of process doctrine is none-theless engaged. Fundamentally, these involve police conduct that goesbeyond what is acceptable in protecting society from criminal conduct.The jurisprudential wellspring for the “defence of entrapment” is thecommon law abuse of process doctrine.

91 An accused who has been found guilty beyond a reasonable doubt isentitled to a stay of proceedings if he establishes on a balance ofprobabilities that the police have engaged in conduct such that allowingthe prosecution or the entry of a conviction would amount to an abuse ofthe judicial process by the state (see R. v. Mack, [1988] 2 S.C.R. 903(S.C.C.); R. v. Shirose, [1999] 1 S.C.R. 565 (S.C.C.) at para. 21).

92 The question is one of mixed law and fact and should be resolved bythe trial judge. A stay should be entered only in the “clearest of cases”(Mack, para. 149).

93 A stay of proceedings may also be available where the police engagein unlawful conduct. The effect of police illegality is driven by the facts(see R. v. Shirose, supra. at para. 24).

94 State conduct was obviously the focus in R. v. Hart. The majority ofthe Newfoundland Court of Appeal, and Justice Karakatsanis, in the Su-preme Court of Canada, identified the Canadian Charter of Rights as theappropriate analytical framework to regulate Mr. Big operations, giventhe state’s role in generating the confession. However, the majority in-stead chose a two-pronged common law approach.

95 The first prong focuses on the admissibility of the inculpatory evi-dence generated by the undercover operation. A new common law rulewas announced. The inculpatory admissions are presumptively inadmis-sible. To gain admission, the Crown must establish on a balance ofprobabilities that the probative value of the admissions outweigh theirprejudicial effect.


96 The second prong focuses on police conduct. Justice Moldaverin Hart manifestly chose the common law abuse of process as the foun-dation to address concerns about unacceptable police conduct:

[11] Trial judges must also carefully scrutinize the conduct of thepolice to determine if an abuse of process has occurred. No matterhow reliable the confession, the courts cannot condone state con-duct — such as physical violence — that coerces the target of a Mr.Big operation into confessing. Where an accused establishes that anabuse of process has occurred, the court can fashion an appropriateremedy, including the exclusion of the confession or a stay ofproceedings.

97 Justice Moldaver was aware that the abuse of process doctrine hadnot yet found much favour in combating questionable police conduct inMr. Big operations. He proposed to provide guidance on how to deter-mine if a Mr. Big operation crosses the line from skillful police work toan abuse of process (para. 86).

98 Even if a reliable confession is obtained, Justice Moldaver stressedthat the end is not justified by the means. It was in this regard that theabuse of process doctrine has a role. The following illustrates:

[112] I should not, however, be taken as suggesting that police mis-conduct will be forgiven so long as a demonstrably reliable confes-sion is ultimately secured. That state of affairs would be unaccept-able, as this Court has long recognized that there are “inherent limits”on the power of the state to “manipulate people and events for thepurpose of ... obtaining convictions” (R. v. Mack, [1988] 2 S.C.R.903, at p. 941).

[113] In my view, this is where the doctrine of abuse of process mustserve its purpose. After all, the doctrine is intended to guard againststate conduct that society finds unacceptable, and which threatens theintegrity of the justice system (R. v. Babos, 2014 SCC 16, at para.35). Moreover, the doctrine provides trial judges with a wide discre-tion to issue a remedy — including the exclusion of evidence or astay of proceedings — where doing so is necessary to preserve theintegrity of the justice system or the fairness of the trial (ibid., atpara. 32). The onus lies on the accused to establish that an abuse ofprocess has occurred.

99 In this case, the police did not engage in a classic Mr. Big operation.At first, the operation was supposed to have members of an OMG stimu-lating suspects to communicate electronically, which would be capturedby the authorized wiretap. Then, the operation morphed into an approach


of the respondent in a public area, where she would have the option towalk away.

100 Instead, the undercover officers confronted the respondent in herdimly lit underground parking lot. They ordered her to get back into hercar, and demanded she tell them what had happened. She said she wasscared by the implicit threats of violence. The trial judge found that thatfear caused her to cooperate.

101 As to such tactics, Justice Moldaver provided the following guidance:[115] It is of course impossible to set out a precise formula for deter-mining when a Mr. Big operation will become abusive. These opera-tions are too varied for a bright-line rule to apply. But there is oneguideline that can be suggested. Mr. Big operations are designed toinduce confessions. The mere presence of inducements is not prob-lematic (Oickle, para. 57). But police conduct, including induce-ments and threats, becomes problematic in this context when itapproximates coercion. In conducting these operations, the policecannot be permitted to overcome the will of the accused and co-erce a confession. This would almost certainly amount to anabuse of process.

[116] Physical violence or threats of violence provide examples ofcoercive police tactics. A confession derived from physical violenceor threats of violence against an accused will not be admissible — nomatter how reliable — because this, quite simply, is something thecommunity will not tolerate (see, e.g., R. v. Singh, 2013 ONCA 750,118 O.R. (3d) 253).

[117] Violence and threats of violence are two forms of unaccept-able coercion. But Mr. Big operations can become coercive in otherways as well. Operations that prey on an accused’s vulnerabilities —like mental health problems, substance addictions, or youthfulness —are also highly problematic (see Mack, at p. 963). Taking advantageof these vulnerabilities threatens trial fairness and the integrity of thejustice system. As this Court has said on many occasions, miscon-duct that offends the community’s sense of fair play and decencywill amount to an abuse of process and warrant the exclusion ofthe statement.

[Emphasis added]

102 The use of feigned or real violence in Mr. Big operations does notnecessarily attract a finding of abuse. For example, in R. v. Allgood, 2015SKCA 88 (Sask. C.A.), leave to appeal ref’d, [2015] S.C.C.A. No. 423(S.C.C.), the police created scenarios involving acts of violence. Eventu-ally, the appellant confessed to murdering his former female partner and


attempted murder of her companion. The use of the violent scenarios wasnot found to be abusive as they were not done to intimidate Mr. Allgood,but rather to show that the organization approved of violent acts beingdone to non-members, including women (see also R. v. Johnston, 2016BCCA 3 (B.C. C.A.) at para. 51 and R. v. Randle, 2016 BCCA 125 (B.C.C.A.)).

103 However in R. c. Laflamme, 2015 QCCA 1517 (C.A. Que.), (leave toappeal ref’d, (2016), [2015] S.C.C.A. No. 479 (C.A. Que.)) violent sce-narios were used to demonstrate the power and willingness of the “Or-ganization” to use violence against its own members, including the ac-cused and the undercover officer who introduced him into theorganization. These indirect or veiled threats amounted to unacceptablecoercive tactics (paras. 79-80) and compromised the integrity of the jus-tice system. It constituted an abuse of process. A stay of proceedings wasentered.

104 With all due respect, the common law doctrine of abuse of process isavailable to assess whether police conduct crossed the line from skillfulpolice work to conduct that, if condoned, would be harmful to the integ-rity of the justice system. It has never been, nor should it be, limited topolice misconduct involved in “Mr. Big” operations. It is the coercivepower of the implied or indirect threats of harm to the accused or toothers that matters, not whether the police had the time and resources tomount a full-fledged “Mr. Big” operation.

105 The Crown cites the trial judge’s language in para. 93 of his decisionas demonstrating legal error: “While the misconduct in this case could becategorized as offensive to notions of fair play and decency, I am satis-fied that the harm can be remedied by excluding the evidence which wasobtained” (my emphasis). It contends that the emphasized words indicatethat he lowered the threshold for a finding of abuse of process.

106 With respect, the Crown takes the trial judge’s language at para. 93out of context. The trial judge had already directed himself that his queryhad to focus on whether the police behaviour might be considered harm-ful to the integrity of the justice system (para. 72). For this query, heexamined if the conduct of the police unfairly coerced the respondent’sadmissions. After reviewing the evidence, and the competing inferencesthat could be drawn, he found:

[89] I am satisfied that the actions of Corporal I. and Sergeant P.resulted in the type of unfair coercion described by Justice Moldaverin Hart. Ms. Derbyshire’s confession and identification of physical


evidence was obtained by intimidation and implied threats of harm.She was never given a choice which would have permitted her towalk away without disclosure. This was an abuse of process.

107 It was after this finding that he considered the issue of what remedyshould follow. Since the respondent was requesting a stay of proceed-ings, he turned to the test for a stay set out in R. c. Piccirilli, supra.

108 In that case, Justice Moldaver, again writing for the majority, con-firmed that the test for a stay of proceedings is the same whether the casefalls into the “main” category (conduct that jeopardizes an accused’sright to a fair trial) or the “residual category” (conduct that risks under-mining the integrity of the judicial process).

109 The test has three requirements. The first focuses on whether theprejudice to the accused’s fair trial right, or the integrity of the justicesystem, will be manifested, perpetuated, or aggravated by a trial. Thesecond is whether there is an alternative effective remedy. If there is stilluncertainty whether a stay is warranted, the court must then balance theinterests of granting a stay against society’s interest in a final decision onthe merits (para. 32).

110 Where it is the residual category in play, Justice Moldaver elaboratedon the first requirement for this category at para. 35. I have quoted thisparagraph earlier. For ease of reference, I will repeat it:

[35] By contrast, when the residual category is invoked, the questionis whether the state has engaged in conduct that is offensive to socie-tal notions of fair play and decency and whether proceeding with atrial in the face of that conduct would be harmful to the integrity ofthe justice system. To put it in simpler terms, there are limits on thetype of conduct society will tolerate in the prosecution of offences.At times, state conduct will be so troublesome that having a trial —even a fair one — will leave the impression that the justice systemcondones conduct that offends society’s sense of fair play and de-cency. This harms the integrity of the justice system. In these kindsof cases, the first stage of the test is met.

[Emphasis added]

111 It is the language that I have bolded that the trial judge paraphrased inpara. 93 of his decision. He had already quoted the relevant directionsfrom Babos, and said that, after he had considered all of those factors, hewas not satisfied that a stay of proceedings was required or appropriate.There would have been no confusion if he had just completed his para-phrase from Babos to be: While the misconduct in this case could becategorized as offensive to notions of fair play and decency and proceed-


ing with a trial in the face of that conduct would be harmful to the integ-rity of the justice system, I am satisfied that the harm can be remedied byexcluding the evidence which was obtained.

112 I see no error by the trial judge in his articulation and application ofthe appropriate legal principles that led him to find that the conduct ofthe police amounted to an abuse of process.

113 I can now turn to the contention that, nonetheless, the trial judge erredin law in finding an abuse of process.

Did the trial judge err in law in finding an abuse of process?114 The Crown launches an all-out attack on the trial judge’s finding of

abuse of process. First, by insisting that because Justice Moldaver did notsay “implied” when he discussed the issue of threats in para. 115 of Hart,the trial judge erred in law by finding abuse by the police use of intimi-dation and implied threats of harm.

115 Second, the Crown says the trial judge overstated the evidence, failedto consider relevant evidence, misunderstood key Crown evidence, andthat the trial judge’s finding amounted to palpable and overriding error.

116 I have already discussed at length the claim that the trial judge ap-plied the wrong test. The Crown is right to this extent — JusticeMoldaver did not use the qualifier “implied” when he wrote in paras. 115and 116 of unacceptable police conduct. The Crown argues this is tellingbecause in R. v. Mack, [1988] 2 S.C.R. 903 (S.C.C.) the Court wrote atpara. 124 that “one indication of impermissible conduct” would be theexistence of “threats, implied or express, made to the individual beingtargeted by inducement techniques”.

117 Furthermore, the Crown says this is significant because JusticeKarakatsanis, in her concurring judgment in R. v. Hart, specifically men-tioned implied threats as being relevant to the degree of coercion (para.194).

118 I am unable to agree. What Justice Moldaver makes clear is that it isthe function of the doctrine of abuse of process to guard against policeconduct that society finds objectionable and which threatens the integrityof the justice system (para. 113).

119 It is the unacceptable use of police tactics to coerce confessions thatis problematic. The use of violence or threats of violence are two primeexamples. What possible difference can there be to the integrity of the


justice system if a confession is coerced by threats of violence that areconveyed to a suspect by implication rather than expressly?

120 If Justice Moldaver meant to create a meaningful distinction betweenthe two means of conveying threats, he had every opportunity to do so.In fact, in Hart, there were no express threats of violence. As explainedby Cromwell J., in his separate concurring reasons, the claim that therehad been intimidation and implied threats had been rejected by the trialjudge:

[157] At trial, Mr. Hart maintained that he was “intimidated, scaredand felt trapped in his ability to get out” and that his motive to lieabout having murdered his children was “the money, the friendshipshe created with undercover operators, the lifestyle and the chance toget out of Newfoundland”: trial judge’s voir dire reasons, 2007NLTD 74, 265 Nfld. & P.E.I.R. 266, at para. 33. Mr. Hart arguedat trial that his statements resulted from implied threats, coer-cions and psychological coercion: ibid., at para. 42.

[158] The trial judge, who had the advantage of seeing and hear-ing the witnesses, including Mr. Hart, flatly rejected these con-tentions as having no foundation in fact. The trial judge found as afact that Mr. Hart was offered the opportunity to stop his involve-ment at any time: “[h]e had numerous chances to leave the operation,but made no effort to do so”: voir dire reasons, at para. 61. In fact,Mr. Hart, according to the trial judge, “continued to show his willing-ness to become more involved and to take greater risks.... Mr. Hartwanted to work and continually pressured [the undercover officers]for more work outside of Newfoundland”: ibid., at paras. 59 and 61.

[Emphasis added]

121 Moldaver J. did not resolve whether the police use of intimidationand implied threats amounted to an abuse of process in Hart. Rather, hesaid it was unnecessary to decide the abuse claim because the respon-dent’s confessions were excluded under the new common law test.

122 However, it is noteworthy that Justice Moldaver did not dismiss theimplied threats and police coercion as unworthy or inconsequential to anabuse of process claim. Instead, he found that such conduct might wellamount to an abuse of process. He wrote as follows:

[149] Without question, the police conduct in this case raises signifi-cant concerns, and might well amount to an abuse of process. How-ever, this is not how the issue was presented at trial. At trial, therespondent took issue with the threatening and intimidating conductof the officers, and the trial judge rejected those arguments. Given


this, and the fact that there is no need to decide the matter, I do notbelieve this is an appropriate case to decide whether an abuse of pro-cess has been established.

123 Finally, it is not the aura of violence and intimidation in general thatcrosses the line. It is when intimidation and threats, express or implied,coerce the accused to provide inculpatory evidence (see above, R. c.Laflamme).

124 The Crown’s argument that the trial judge’s finding is tainted by er-rors in how he treated certain evidence, and otherwise committed palpa-ble and overriding error, is little more than an invitation for this Court toretry the case.

125 The trial judge had the advantage this Court does not. He heard first-hand the evidence given by the undercover officers and the respondent.The same arguments made to this Court were made to the trial judge.These included that Ms. Derbyshire, given her involvement in drug traf-ficking, should not have been, and was not, intimidated by the under-cover officers posing as members of an OMG; she was merely acting inher best interests, which were to clean up the problems created by Skin-ner’s actions to get business back to normal.

126 The trial judge made very clear, strong findings of fact. He acceptedthe respondent’s evidence that she was petrified by the demeanour andstatements of the undercover officers, and that she tried to portray anoutward calm to them so as not to cause them to think that she was “aproblem” they would feel they needed to get rid of. His key findings are:

[80] Understandably, Ms. Derbyshire completely believed thatthe undercover operators were gangsters from Montreal. Whenthey approached her in the underground parking garage the officerswere intimidating. They moved aggressively and Corporal I. raisedhis voice, pointed his finger and ordered Ms. Derbyshire into her car.Ms. Derbyshire did as she was told and found herself confined byCorporal I. in the passenger seat and Sergeant P. outside the driver’sdoor. These were very close quarters and Corporal I. continued tospeak to her aggressively, waving his finger and demanding that shetell them about her involvement in the Adams’ homicide. She did soimmediately and I am satisfied, based upon her testimony, that itwas the result of fear and intimidation and not a willingness tohelp these “criminals” from Montreal.

. . .

[82] Ms. Derbyshire said her defence mechanism was to stay calmand not appear to be frightened. I accept her testimony on that


point. This behaviour could well be misinterpreted by the undercoverofficers as an indication that she was relaxed and cooperating. Sincethey had no prior experience with respect to her demeanour theiropinions about whether she was frightened or not are of limitedvalue.

. . .

[86] The undercover operators intended to create an intimidating andthreatening environment for Ms. Derbyshire and they were success-ful in doing so. She said she was frightened and I have no doubtthat she was. There was a very strong implied threat of physicalharm to her if she did not give the “gangsters” what they wereafter. The fact that she gave incriminating information, implicat-ing both herself and Mr. Skinner, in such a short period of timeconfirms the nature of the atmosphere which had been created.

. . .

[88] Once the confession and other information was given by Ms.Derbyshire and she was told to show the officers the physical evi-dence, the rest of the day unfolded as one would expect. Corporal I.intended to maintain control of the situation, and over Ms. Derby-shire, and he did so. While the tension may have diminished some-what, that does not make Ms. Derbyshire’s subsequent actions orstatements any more voluntary. Once she had disclosed the signifi-cant information concerning the Adams’ murder confirming it in sub-sequent discussions, or providing further details is part of one contin-uous transaction.

[Emphasis added]

127 These findings are amply supported by the evidence of the respon-dent. The Crown cannot point to any misapprehension of evidence, or afailure to consider relevant evidence or findings that are unreasonable orcontrary to evidence that the trial judge accepted.

128 The Crown attempts to suggest that the officers wagging their fingersat the respondent and raising their voices cannot justify a finding of abu-sive conduct. If that is all that happened, I would be tempted to agree.But that is a gross understatement of the circumstances facing the re-spondent, both by her description and that of the police witnesses.

129 First of all, the respondent described the approach by Cpl. Isabelle —that they were there from Montreal to clean up the mess and they knewthere was a rat. She believed that they were there to get rid of Jeff.Within minutes, she answered his demands because she did not believeshe had a choice. She testified, “Because I felt if I did not cooperate with


him that I was just going to be another person he was going to dealwith.” When she did tell him what she knew, he responded that she wasgoing with them to Moncton.

130 She testified: A. I told them that I had to work and that I had prior engage-

ments and he said that they were cancelled and that I wasn’t... that I was going with them and not to work.

Q. Okay. What happens next?

A. He proceeded to get out of the car, the passenger side, and hehad a conversation with the gentleman by my driver door andthen the gentleman by the driver door opened my door andasked me to get out and he proceeded to tell me that I wascoming with them. So I ... I felt that I had no choice. So theystarted walking me out just behind me out the ... out the ga-rage door.

131 Ms. Derbyshire said she thought these were serious “gangsters” thatput her back into her car and demanded her cooperation — that is howSgt. Chubbs, the head of the undercover operation, described their as-sumed persona.

132 Cpl. Isabelle was chosen by Sgt. Chubbs due to his ability to effec-tively play that role. Sgt. Chubbs explained:

A. The other thing ... good point. Yes. The other thing about theundercover operators ... in particular, one undercover operatorthat I selected was Cpl. Pat Isabelle. Cpl. Isabelle is an exper-ienced undercover operator whose got a wealth of knowledgein this area. He understands the importance of just the lim-ited duration time you have with the target and he alsounderstands how to effectively, you know, follow theobjectives, get accomplished what we need accomplished.

Q. In your experience with Cpl. Isabelle over the years, wouldyou describe him as charismatic?

A. Yes. Cpl Isabelle is charismatic. He’s a true Quebecois in thesense that he’s very passionate, very outspoken, very ... an-other word would be flamboyant. He would be like whatyou would expect if you were to meet a ... I put the wordgangster on it, My Lord, in that role. He could play thatrole very effectively.

And that’s what we truly wanted to portray, because weknew ... and this is the ... I guess this is the crucial parthere is that we are coming in as undercover operators and


we are trying to portray ourselves as criminals in organ-ized crime to people that live that life, who are involved inorganized crime and who are true criminals. So we have onechance to do it and do it right. And that’s why it’s importantthat you select the right people to do these sort of operations.

[Emphasis added]

133 Sgt. Chubbs confirmed that the scenario was the higher-ups in Mon-treal had sent Cpl. Isabelle and Sgt. Perron to Nova Scotia to “protecttheir interest, meaning if people are talking, who else is talking in thisgroup?” The scenario proposed that the officers ask the respondent if shehad been speaking to the police. Sgt. Chubbs readily acknowledged thatpeople who talk to the police are “rats”. Without it being explicitly said,such people are in grave danger of physical violence, even death.

134 Sgt. Chubbs also acknowledged that undercover officers in theseroles are supposed to portray themselves as “righteous” bad guys, pre-pared to commit acts of violence. Strangely, Sgt. Chubbs expected Cpl.Isabelle and Sgt. Perron to create fear in a known, scary guy, StevenSkinner, but insisted he did not expect the respondent to be afraid ofthem.

135 Sgt. Chubbs frankly admitted that he was surprised that within min-utes of the officers dealing with the respondent, she had developed sucha level of trust with them that she told them all that she knew. I havealready set out the trial judge’s finding of fact that the respondent coop-erated with the undercover officers out of fear and intimidation, not be-cause of a willingness to help the “criminals” from Montreal. In addition,he reasoned:

[81] There is evidence from multiple sources that Steven Skinner wasa violent and intimidating man. Ms. Derbyshire had known him for anumber of years and was aware of his involvement in the drug trade.In cross-examination she described him as a high end gangster andan MMA fighter. It is inconceivable to me that Ms. Derbyshirewould have provided information about the location of physical evi-dence that would link Skinner to the Adams’ murder within the firstcouple of minutes of her encounter with I. and P. unless she feltthreatened and afraid. The Crown’s suggestion that she was beingcooperative and helpful in volunteering this information is not con-sistent with the evidence or, in my view, common sense.

136 The trial judge was required to make findings of fact based on theevidence he heard, including inferences based on that evidence. He didso. The Crown is not happy that the trial judge rejected its theory that the


respondent should not have been, and was not, scared by the undercoverofficers, but was motivated by a desire to help them “clean up the mess”.There is nothing illogical or unreasonable in the trial judge’s factual find-ings. They are fully supported by the evidence.

137 The Crown says the trial judge made no mention of the evidence thatthe respondent admitted being a responsible member of the drug traffick-ing business; this robs his findings of important context, and her abilityto complain of intimidation.

138 I am unable to accept either contention. First, a trial judge is not re-quired to refer to every piece of evidence and argument in the course ofgiving reasons. Here, the trial judge was obviously aware of the respon-dent’s role and background, and the competing inferences that may betaken from it. The following exchange illustrates:

MS. BOUR: ...one thing... I think needs to be front and center inYour Lordship’s mind when assessing this suggestion that Ms. Der-byshire was extremely fearful, ... she’s not ... the thin skulled plain-tiff. She’s not a delicate wallflower. She is not a person that steppedinto this crazy scenario as described as a movie and feels terrified.This is an individual who has dealt with ... she’s not just ... she’s nota person out on the corner selling a few rocks. She is actually en-trenched at the higher levels with ... with heavy duty individuals whoare involved in acts of violence. So ...

THE COURT: So ... so doesn’t it cut both ways in the ... in the sensethat that might cause her to be more afraid of these big bad guys fromMontreal because she knows from personal experience what peoplelike that are capable of.

MS. BOUR: The problem is is that these big ... the problem with thatview of it is that these big bad guys have presented themselves to herfor the purpose of ... of mutual interest. They’re there because all oftheir business has been affected in a negative way from the murder.That was acknowledged by Ms. Derbyshire herself. She said yeah,business has been bad. It’s not like they’re coming here as adversa-ries and what’s more, they’re here to clean up the scene which actu-ally, as a matter of fact, serves her well because ...

THE COURT: You’re saying her experience in the drug trade wouldcause her to be less afraid. My only point is ...

MS. BOUR: If I’m ...

THE COURT: ... isn’t it equally probable that it would make hermore afraid, if she in fact felt threatened by these people because shewould have more knowledge than a person on the street about what’s


potentially at risk of happening. I just don’t see that issue, her experi-ence, playing a lot either way. I think ... I think you can argue it bothsides is the way I look at it.

MS. BOUR: Well, to suggest as has been suggested that she is a pe-tite blonde shrinking violet ...

THE COURT: I don’t think anyone ever suggested that.

MS. BOUR: Well, I think in so many words it’s been suggested, MyLord.

THE COURT: Oh, I think she knows her way around and I’m pre-pared to conclude she does ...

MS. BOUR: Okay.

THE COURT: ... but what that means ...

MS. BOUR: Okay.

THE COURT: ... in the scheme of things.

MS. BOUR: Well, I didn’t ever, I guess, get that impression in ... it’snot been suggested that she is sophisticated and knows her wayaround the drug trade in any Defence submissions so I wanted tohighlight that point because I think it’s important partly becausethat’s the footing upon which the whole operation started.

139 While it may have been better for the trial judge to have referred tosome of this evidence in the course of his reasons, I do not see that theomission erodes his analysis and findings.

140 To the extent that the Crown submits that a suspect who is or wasinvolved in the criminal milieu is robbed of the ability to complain ifviolence or threats of violence are used to coerce a confession, I disagree.

141 In support of its submission, the Crown relies on the limits to thecommon law and statutory defence of duress discussed in R. v. Ryan,2013 SCC 3 (S.C.C.). The defence of duress may enable an accused toescape conviction on the basis that the crime was committed because of athreat made for the purpose of compelling the accused to commit theoffence. The Supreme Court in Ryan confirmed that those who seek torely on the common law defence of duress cannot do so if they knew thattheir participation in a conspiracy or criminal association came with arisk of coercion and/or threats to compel them to commit an offence(para. 75). The majority reasons, by Justices LeBel and Cromwell ex-plain:

[77] The Court of Appeal’s conclusion stands for the proposition thatcourts must take into account the accused’s voluntary assumption ofrisk, a natural corollary of the unavailability of the defence of duress


to those who wilfully engage in criminal conspiracies or organiza-tions. This is consistent with the principle of moral involuntariness.An accused that, because of his or her criminal involvement,knew coercion or threats were a possibility cannot claim thatthere was no safe avenue of escape, nor can he or she truly befound to have committed the resulting offence in a morally invol-untary manner.

[Emphasis added]

142 The respondent did not commit an offence, and then seek to have herconduct excused because she was threatened. She testified that she madestatements to undercover police officers and complied with their de-mands out of fear. The trial judge found that she made admissions be-cause of fear created by the threatening conduct of police officers.Whatever the respondent’s prior or current role in illegal activities, itdoes not give to the police carte blanche to coerce confessions.

143 I would not give effect to this ground of appeal.

Did the trial judge err in finding that exclusion of the evidence was anappropriate and just remedy?

144 A trial judge who finds a Charter breach or conduct that amounts toan abuse of process is required to determine an appropriate remedy. Thesearch for that remedy engages judicial discretion. Deference is owed tothe remedy chosen so long as the judge has not misdirected himself inlaw, made a reviewable factual error, or granted a remedy that is soclearly wrong as to amount to an injustice (see: R. c. Piccirilli, supra. atpara. 48 and R. c. Bellusci, 2012 SCC 44 (S.C.C.)).

145 The Crown says the trial judge gutted the prosecution’s case. It com-plains that the judge, without any analysis or inquiry, decided since astay was not appropriate, an exclusion order was. But the exclusion orderhad the same effect as a stay because without the evidence obtained bythe undercover officers, proceeding against the respondent becameimpossible.

146 I am not convinced that the trial judge erred in the remedy he granted.I come to this conclusion for a number of reasons.

147 The Crown faults the trial judge for not conducting some further anal-ysis or inquiry before ordering exclusion of the evidence obtained by theabusive police conduct. But as detailed earlier, the respondent in her oraland written submissions repeatedly identified exclusion of the evidenceas the only other remedy that would be appropriate.


148 The Crown had numerous opportunities to make submissions, orallyand in writing. Not once did the Crown suggest some other remedywould be just and appropriate; nor that exclusion of the evidence wouldprevent the Crown from proceeding with the charge against therespondent.

149 It was obvious that if the trial judge accepted the respondent’s versionof events and found abusive police conduct coerced her inculpatory re-marks and conduct, the proceedings could be stayed or the evidence ex-cluded. As already identified, the law, as set out by the Supreme Court ofCanada in Hart, envisages a stay of proceedings or an exclusion order asbeing appropriate and just remedies (see Hart at paras. 11, 113, 116,117).

150 There were extensive submissions about the remedy of a stay or ex-cluding the evidence. Neither the Crown nor the respondent gave anyindication that if the judge excluded the evidence, it would, as the Crownnow says, be “gutting” the prosecution’s case. During oral submissionson July 25, 2014, the following exchange illustrates:

THE COURT: Why do you say there should be a stay as opposed toan exclusion of evidence?

MR. MACEWEN: This marries in with the loss of evidence is thatMs. Derbyshire will never be able to make full answer and defencewith respect to this matter. She can’t.

THE COURT: Why?

MR. MACEWEN: The crown jewel in the Crown’s case is the con-fession that she made. Everything ...

THE COURT: So if I exclude the confession, exclude the evidence,why does that not solve the problem?

MR. MACEWEN: If all the evidence and all the confession is ex-cluded it may very well solve the problem.

THE COURT: Well, I’m just wondering why because the test for astay is that there really is no other alternative and the prime alterna-tive is exclusion of evidence so I’m wondering why you think exclu-sion of evidence is not ... not the alternative that would, I guess, pre-clude the granting of a stay.

MR. MACEWEN: I would ... and I’m certainly not suggesting this,you know, choose my words carefully here but should the trial pro-ceed without Ms. Derbyshire’s confession, what we won’t know isany other information that was provided either to the police or


by the police in relation to this investigation that could be usedby Ms. Derbyshire in her defence.

[Emphasis added]

151 A short time later there was a further exchange between the trialjudge and counsel for the respondent about what may or may not happenif a stay is not entered, including police efforts to uncover further evi-dence:

MR. MACEWEN: Well, as it relates to the prosecution against her,what Skinner related to her is a fairly significant piece ofinformation.

THE COURT: Right. And there’s only one other place they’re goingto get that.

MR. MACEWEN: Maybe. I don’t know that and that’s the ... and theCourt doesn’t know that and the police don’t know that and theCrown doesn’t know that. And that’s the problem. And that’s whythe ... I would suggest the trial fairness issue is a very real issue isthat, you know, there ... and without getting into too much detail, youknow, there are other individuals who have not chosen to speak withthe police and what happens here may change that. It may cause thepolice to take a different route, I don’t know...

. . .

MR. MACEWEN: I would suggest that the safe route for the Court isto enter a stay of proceedings. We don’t know what’s going to hap-pen with the investigation. I can’t know, I’m not a police officer.Prior to this, I’d never seen an undercover operation of this nature.Don’t know what else the police have in their bag of tricks so tospeak, I just don’t know, and I would suggest that while the Skinnerinvestigation continues and I suspect that it is continuing, that thetwo are so inter-related that it’s hard to separate something that’s al-ready known by the police while they continue to investigate otherleads, other information. We just can’t know.

152 In the face of these exchanges, the Crown never suggested that ex-cluding the evidence would preclude a trial. It said nothing on July 25 —nothing in their subsequent written submissions, nor in their oral argu-ments on October 1, 2014. Now they say it should have been obvious tothe trial judge that an order excluding the evidence would gut their case,or he should have made some further inquiry or analysis.


153 I agree with the Crown that it is evident that the trial judge was notaware if he excluded the evidence it would end the case against the re-spondent. His reasoning to exclude the evidence is succinct:

[93] When I consider all of these factors I am not satisfied that a stayof proceedings is required or appropriate. While the misconduct inthis case could be categorized as offensive to notions of fair play anddecency, I am satisfied that the harm can be remedied by excludingthe evidence which was obtained. This would include the statementsmade by Ms. Derbyshire to the undercover operators as well as thephysical evidence and its locations which she identified. By doingso, the Court distances itself from the impugned conduct and atthe same time recognizes the importance of having this seriouscharge tried on its merits.

Conclusion and Disposition

[94] Ms. Derbyshire has not established a breach of her rights unders.7 of the Charter, however she has satisfied me that the police un-dercover operation was an abuse of process. As a result I will ex-clude the evidence obtained from Ms. Derbyshire. This includes herstatements to the undercover operators and the physical evidence andlocations which she identified to them. If there is other evidencewhich Ms. Derbyshire feels should be excluded as the fruits of theabusive conduct, she is free to make a further application for suchrelief. My comments should not be interpreted to mean that therewill be an automatic exclusion of evidence which is in any wayrelated to the undercover operation no matter how tenuous thatconnection. As noted by the Supreme Court in Babos the grant-ing of relief for abuse of process is discretionary and will involvethe weighing of a number of potentially competing factors.

[Emphasis added]

154 In theory, there may well have been a vast array of remedies availa-ble. But the only two remedies discussed by the parties at trial were astay of proceedings or an exclusion of evidence. Quite apart from thetheoretical availability of other remedies, I fail to see how any of themwould address the harm to the integrity of the justice system if the Crowncould still rely on evidence which the trial judge found to have been un-fairly coerced by the police.


155 Nonetheless, the Crown argues that the trial judge erred in law in hisapproach because he did not consider any lesser remedy. The Crown putsit this way:

100. In R. v. Bjelland, 2009 SCC 38, Justice Rothstein, for the Major-ity, discussed the necessary analysis when exclusion of evidence isproposed as a remedy under s.24(1) of the Charter to maintain theintegrity of the justice system. If the trial judge does not considerwhether there is a lesser remedy than exclusion, it is a reviewableerror. In ordering the exclusion of evidence the trial judge misdi-rected himself and did not impose an appropriate and just rem-edy. The case emphasizes the severity of an exclusion of evidenceorder, something which seems to have eluded the trial judge inDerbyshire.

[Emphasis added]

156 The Crown also suggests that “Bjelland held that evidence can onlybe excluded in “exceptional cases” — where it would render the trialprocess unfair or where exclusion is necessary to maintain the integrityof the justice system (para. 24)”.

157 R. v. Bjelland, 2009 SCC 38 (S.C.C.), was a case about late disclo-sure — a breach of the accused’s right to make full answer and defenceguaranteed by s. 7 of the Charter. The trial judge ordered exclusion as anappropriate remedy under s. 24(1). The majority of the Alberta Court ofAppeal reversed. Rothstein J., for the majority in the Supreme Court,agreed that the prejudice to the accused’s right to make full answer anddefence could be remedied by an adjournment and order for disclosure(para. 3).

158 Justice Rothstein acknowledged that exclusion of evidence wouldnormally be a remedy under s. 24(2) of the Charter. It could not be ruledout as an available remedy under s. 24(1), but only where a less intrusiveremedy cannot be fashioned to safeguard the fairness of the trial processor the integrity of the justice system.

159 The notion that an order excluding such evidence is only available in“exceptional cases” in response to abusive police conduct is not borneout by the authorities. Justice Rothstein, in Bjelland, wrote of the excep-tional nature of an exclusion order in cases of late disclosure — notcases where the police have used threats to coerce inculpatory evidence:

[24] Thus, a trial judge should only exclude evidence for late dis-closure in exceptional cases: (a) where the late disclosure rendersthe trial process unfair and this unfairness cannot be remediedthrough an adjournment and disclosure order or (b) where ex-


clusion is necessary to maintain the integrity of the justice sys-tem. Because the exclusion of evidence impacts on trial fairnessfrom society’s perspective insofar as it impairs the truth-seekingfunction of trials, where a trial judge can fashion an appropriate rem-edy for late disclosure that does not deny procedural fairness to theaccused and where admission of the evidence does not otherwisecompromise the integrity of the justice system, it will not be appro-priate and just to exclude evidence under s. 24(1).

[Emphasis added]

160 Even then, Rothstein J. specifically acknowledged situations where astay of proceedings or an order for exclusion may well be appropriate(paras. 25-27).

161 Justice Moldaver, for the majority in Hart, repeatedly emphasizedthat if police conduct unfairly coerces a suspect into confessing, thecourts cannot condone such conduct. A stay of proceedings or an orderexcluding the evidence will be the appropriate remedy — no matter howreliable the evidence is — because of the impact on the integrity of thejustice system.

162 I am not satisfied that the trial judge erred in the remedy he ordered.Even knowing, as we do now, that the order precluded the prosecution ofserious conduct, I fail to see any other remedy that would protect theintegrity of the justice system in light of Justice Wood’s factual findings.

163 I would not give effect to this ground of appeal. As a result, I woulddismiss the appeal.

PUBLICATION BAN164 The trial judge announced, at the outset of the voir dire, a ban on

publication of the proceedings until the conclusion of the trial. As well,the judge referred to a ban said to have been ordered by Justice Coadyunder s. 486.5(1) of the Criminal Code on the identification of policewitnesses.

165 There was no order in the appeal book. When this appeal was heardon March 15, 2016, the panel asked the parties about the publication ban.Neither party had a copy. The Crown did make the observation that thetrial judge had not used initials in the published decision for Sgt. Chubbs,and asked that if the Court was “contemplating a new ban at this level”,his name be initialized as well. The Crown undertook to look into thewhereabouts of the order.


166 On March 17, 2016, the Crown wrote, enclosing a copy of the NovaScotia Supreme Court order. The relevant portion of the letter is as fol-lows:

The Panel hearing the Derbyshire matter requested a copy of thePublication Ban on the names of the undercover operators granted byJustice Kevin Coady. I have included it with this letter. I have alsoincluded a letter from Crown Counsel Alicia Kennedy which seemsto indicate that the Ban was contemplated to cover three undercoverofficers....I also note the Order states that the Ban was for a durationof one year from May 8, 2014. I could find no further PublicationOrders in our file. As such, the Crown reiterates its request that thisHonourable Court order a Ban on Publication of the names of Sgt.David Chubbs, Cpl. Patrick Isabelle and Sgt. Daniel Perron. If theCourt wishes I can provide a draft Order to that effect.

167 The Registrar of the Court notified the Crown on March 23, 2016 thatthere no longer appeared to be a ban on any aspect of the evidence heardby the trial judge. Absent a motion, with notice to the appropriate inter-ests, the Court would not issue an order.

168 On April 28, 2016, the Crown filed a motion for an order pursuant tos. 486.5 of the Criminal Code restricting publication of any informationthat could identify the undercover and cover officers involved in thiscase for a period of two years. The motion was supported by the affidavitof Sgt. Rob Jodrey. A draft order requested a ban on the publication ofany information that could identify the undercover and cover police of-ficers P.I., D.P. and D.C. pursuant to s. 486.5 of the Criminal Code. Italso requested that the order direct: “No publication, transmission orbroadcast of any evidence taken in this trial shall be linked or cross-refer-enced to any previously published document, broadcast or transmissionwhich identified P.I., D.P. and D.C. by name or image.”

169 The motion was to be heard by a justice in chambers on May 5, 2016.The presiding justice referred the motion to this panel. The respondenttakes no position on the motion, and no media representatives came for-ward to voice opposition.

The Principles170 There are two potential sources of authority to issue the kind of order

the Crown seeks: s. 486.5 of the Criminal Code, and this Court’s com-


mon law jurisdiction according to the process set out in Nova Scotia CivilProcedure Rule 90.37(15)1 .

171 Rule 90.37(15) provides: 90.37 (15) A judge of the Court of Appeal, on motion, may make anorder to do any of the following, until the Court of Appeal provides afurther order:

(a) allow the use of pseudonyms in the pleadings;

(b) impose a publication ban;

(c) require a sealing of a court file;

(d) require a hearing to be in camera.

172 Under Rule 90.37(12)(d), a chambers judge may refer a motion for apublication ban to a panel of the Court of Appeal.

173 The Crown cited Rule 90.37(15) and s. 486.5 in support of its motion,but stressed s. 486.5 as being paramount.

174 At common law, a Court must be satisfied that a ban is necessary, andthe salutary effects outweigh its deleterious effects. This is usually re-ferred to as the Dagenais/Mentuck test, so-called after the Supreme Courtof Canada decisions in Dagenais v. Canadian Broadcasting Corp.,[1994] 3 S.C.R. 835 (S.C.C.) and R. v. Mentuck, 2001 SCC 76 (S.C.C.).In Mentuck, Justice Iacobucci for the unanimous court defined the properanalytical approach to be (para. 32):

A publication ban should only be ordered when:

(a) such an order is necessary in order to prevent a serious risk tothe proper administration of justice because reasonably alter-native measures will not prevent the risk; and

(b) the salutary effects of the publication ban outweigh the dele-terious effects on the rights and interests of the parties and thepublic, including the effects on the right to free expression,the right of the accused to a fair and public trial, and the effi-cacy of the administration of justice.

1 The Nova Scotia Court of Appeal made Rule 91 pursuant to s. 482 of theCriminal Code. Rule 91.02 makes the Civil Procedure Rules, and in particularRule 90 applicable with any necessary modification and when not inconsistentwith Rule 91.


175 Section 486.5 is found in Part XV “Special Procedure and Powers” ofthe Criminal Code. It was first introduced in 1999 as s. 486(4.1):

A judge or justice may, in any proceedings against an accused otherthan in respect of an offence set out in subsection (3), make an orderdirecting that the identity of a victim or a witness, or any informationthat could disclose their identity, shall not be published in any docu-ment or broadcast in any way, if the judge or justice is satisfied thatthe order is necessary for the proper administration of justice.

176 Section 486(4.7) of the Code identified the factors that a judge or jus-tice must consider when deciding whether to make an order. It provided:

(4.7) In determining whether to make an order, the judge or justiceshall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim,witness or justice system participant would suffer significantharm if their identity were disclosed;

(c) whether the victim, witness or justice system participantneeds the order for their security or to protect them from in-timidation or retaliation;

(d) society’s interest in encouraging the reporting of offences andthe participation of victims, witnesses and justice system par-ticipants in the criminal justice process;

(e) whether effective alternatives are available to protect theidentity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expres-sion of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

177 Section 486 was repealed and replaced in 2005 (S.C. 2005, c. 32). Anumber of changes were made, and the numbering was changed to itspresent format.

178 While there are obvious similarities between the underlying policyconsiderations that animate the common law analysis and the legislationfound in s. 486.5 of the Code, there is room for divergence. The points ofdivergence are made more palpable by the 2015 amendments to s. 486.5(S.C. 2015, c. 13, in force July 22, 2015).


179 The Crown stresses the changes in s. 486.5(1) and (7)(b) imple-mented by the 2015 amendments. The changes (with emphasis added)are as follows:

s. 486.5(1) Unless an order is made under section 486.4, on applica-tion of the prosecutor in respect of a victim or a witness, or on appli-cation of a victim or a witness, a judge or justice may make an orderdirecting that any information that could identify the victim or wit-ness shall not be published in any document or broadcast or transmit-ted in any way if the judge or justice is of the opinion that theorder is in the interest of the proper administration of justice.

s. 486.5 (7) (b) whether there is a real and substantial risk that thevictim, witness or justice system participant would suffer harm iftheir identity were disclosed;

180 I need not delve into the complexity of what implications, if any, flowfrom the 2015 amendments (see the discussion in R. v. Nguyen, 2015ABQB 676 (Alta. Q.B.)), or the proper interplay between the commonlaw test and the Code provisions (see R. v. Nguyen, supra.; R. v. Sipes,2011 BCSC 1329 (B.C. S.C.); R. v. Haevischer, 2014 BCSC 2085 (B.C.S.C.)). I say this because, even if s. 486.5 of the Code gives an appellatecourt the power to make such an order, I am not satisfied that any furtherorder is warranted.

Application of the principles181 As noted earlier, s. 486.5 is found in Part XV of the Criminal Code

“Special Procedure and Powers”. Part XV covers a wide range of powersgiven to justices of the peace, provincial court judges, and judges of su-perior courts of criminal jurisdiction. These include search warrants, pro-duction orders, DNA warrants, sexual-offender registration, and forfei-ture orders, to name a few.

182 Section 486 deals with the power of a presiding judge or justice withrespect to making certain types of orders that could restrict the opencourt principle in proceedings against an accused. For example, s. 486(1)provides that any proceeding against an accused shall be held in opencourt, but the presiding judge or justice may order the exclusion of all orany member of the public from the courtroom. The presiding judge orjustice is given powers to permit the use of support persons, screens, andto restrict the right to personally cross-examine certain witnesses (ss.486.1; 486.2; 486.3).


183 For a host of offences (principally sexual), the presiding judge or jus-tice shall, if the application is made by the complainant, prosecutor, orwitness, direct that any information that could identify the witness orcomplaint not be published or broadcast in any way (s. 486.4).

184 Section 486.5 is the last of the provisions that empower a presidingjudge or justice to direct a ban on publication or broadcast of informationthat could identify a witness. The Crown brought an application, as con-templated by s.486.5(4), to Justice Coady, who was designated to be thetrial judge. In written submissions to Coady J., it sought a time-limitedban of one year.

185 The Crown did not appear to reference s. 486.5 of the Code on itsapplication to Justice Coady. It cited R. v. E. (O.N.), [2001] 3 S.C.R. 478(S.C.C.), the companion case to Mentuck. Both of these cases had beenheard together. Both challenged bans ordered by trial judges on “Mr.Big” operations and on the identity of the officers involved.

186 In E. (O.N.), Iacobucci J. applied the two part test articulated in Men-tuck: is a publication ban necessary to prevent a serious risk to the properadministration of justice because reasonable alternative measures will notprevent the risk; and do the salutary effects of the ban outweigh the dele-terious effects.

187 As in Mentuck, Justice Iacobucci found the publication ban to beoverbroad by restricting details about the investigative technique and po-lice tactics, but did uphold a ban for a period of one year on “publicationof information tending to identify the particular officers involved in theoperation, including their names, likenesses and physical descriptions”.

188 Justice Iacobucci in R. v. E. (O.N.), as he did in Mentuck, explainedwhy the ban should be time restricted:

[14] ...The identity of police officers should not be, as a matter ofgeneral practice, shrouded in secrecy forever, absent serious and in-dividualized dangers. A force of anonymous, undercover police isnot the sort of institution the courts may legitimately, in effect, cre-ate; such would be the appearance of an order restraining publicationof their identities in perpetuity.

189 In this case, the order issued by Justice Coady on May 8, 2014 was asfollows:

Upon application of the prosecutor, this Court orders a ban on andprohibits the publication in print and the broadcasting on television,film, video, radio and the internet of any information tending or serv-ing to publicly identify the undercover officers in the investigation of


the accused, but not limited to, any likeness of the officers, the ap-pearance of their attire and their physical descriptions.

The duration of the ban is one year.

190 The ban expired on May 8, 2015. At the time that this motion wasbrought, there had been no restriction on publication for almost a year.The information now sought to be banned for a further period of twoyears has been in the public domain with no identified or suggested realand substantial risk of harm from use of the officers’ names. It seemsevident that there would have been no further action taken had the panelnot inquired about the status of the earlier ban.

191 There is no definition section for Part XV of the Code. “Judge” is notdefined in the “Interpretation” section (s. 2). “Justice” is defined asmeaning a justice of the peace or a provincial court judge. “[P]rovincialcourt judge” is also defined. The precise words of s. 2 are as follows:

“justice” means a justice of the peace or a provincial court judge, andincludes two or more justices where two or more justices are, by law,required to act or, by law, act or have jurisdiction;

. . .

“provincial court judge” means a person appointed or authorized toact by or pursuant to an Act of the legislature of a province, bywhatever title that person may be designated, who has the power andauthority of two or more justices of the peace and includes the lawfuldeputy of that person;

192 There are numerous provisions in Part XV that give powers to a jus-tice, a presiding judge, a judge of a superior court of criminal jurisdic-tion, or to a court. Some of the orders that may be made can be appealedto the Court of Appeal.

193 Absent from s. 486.5 is any express indication that an appeal court ora judge thereof has the power to impose a publication ban under thatsection.

194 The powers of an appeal court and judges thereof are found in PartXXI of the Criminal Code. There are numerous provisions in Part XXImaking sections found in other Parts of the Code applicable, with thenecessary modifications, to proceedings before a judge or the Court ofAppeal (see s. 679 and s. 683).

195 This is perhaps why, in R. v. Canada (Attorney General), 2014ABCA 330 (Alta. C.A.), Justice Berger turned to the common law testwhen faced with a similar situation of a lapsed s. 486.5 ban and a freshapplication for a further ban.


196 Without elaborating, Berger J.A. referenced s. 486.5, but applied theMentuck common law analysis:

[2] Section 486.5 of the Criminal Code contemplates a publicationban to protect the identity of victims or witnesses. This Court hasjurisdiction at common law which extends in appropriate circum-stances to impose a publication ban to protect undercover officerswhose operational endeavours and/or safety may be engaged. Thatjurisdiction may be exercised if two requirements are set out:

1) The Order must be necessary in order to prevent a serious riskto the proper administration of justice because reasonably al-ternative measures will not prevent the risk; and

2) The salutary effects of the publication ban outweigh the dele-terious effects on the rights and interests of the parties and thepublic, including the effects on the right to free expression,the right of the accused to a fair and public trial, and the effi-cacy of the administration of justice: R. v. Mentuck, 2001SCC 76, [2006] 3 S.C.R. 442.

[3] In my opinion, the affidavit of Heidi Brynn Van Steelandt, swornon September 22, 2014, setting out the factual underpinnings in sup-port of the application, satisfies the test in Mentuck.

197 Whatever the legal wellspring of the power to impose a publicationban, it is not a routine matter. The imposition of a ban conflicts with the“open court” principle, along with freedom of the press and expression,all of which are matters of fundamental importance to a democratic soci-ety (see: MacIntyre v. Nova Scotia (Attorney General), [1982] 1 S.C.R.175 (S.C.C.); Edmonton Journal v. Alberta (Attorney General), [1989] 2S.C.R. 1326 (S.C.C.)).

198 As emphasized by Justice Iacobucci in Mentuck, these are importantprinciples, regardless whether representatives of the press appear to op-pose the requested ban:

[38] In some cases, however, most notably when there is no party orintervener present to argue the interests of the press and the public tofree expression, the trial judge must take account of these interestswithout the benefit of argument. The consideration of unrepresentedinterests must not be taken lightly, especially where Charter-pro-tected rights such as freedom of expression are at stake. It is just astrue in the case of common law as it is of statutory discretion that, asLa Forest J. noted, “[t]he burden of displacing the general rule ofopenness lies on the party making the application”: New Brunswick,


supra, at para. 71; Dagenais, supra, at p. 875. Likewise, to againquote La Forest J. (at paras. 72-73):

There must be a sufficient evidentiary basis from whichthe trial judge may assess the application and upon whichhe or she may exercise his or her discretion judicially... .

A sufficient evidentiary basis permits a reviewing court todetermine whether the evidence is capable of supportingthe decision.

In cases where the right of the public to free expression is at stake,however, and no party comes forward to press for that right, thejudge must consider not only the evidence before him, but also thedemands of that fundamental right. The absence of evidence opposedto the granting of a ban, that is, should not be taken as mitigating theimportance of the right to free expression in applying the test.

[39] It is precisely because the presumption that courts should beopen and reporting of their proceedings should be uncensored is sostrong and so highly valued in our society that the judge must have aconvincing evidentiary basis for issuing a ban. Effective investiga-tion and evidence gathering, while important in its own right, shouldnot be regarded as weakening the strong presumptive public interest,which may go unargued by counsel more frequently as the number ofapplications for publication bans increases, in a transparent court sys-tem and in generally unrestricted speech on matters of such publicimportance as the administration of justice.

199 I have reviewed carefully Sgt. Jodrey’s affidavit filed in support ofthe requested two-year publication ban. I am not satisfied that the com-mon law test has been met. Further, even if I were of the view that thisCourt had the jurisdiction to order a ban pursuant to s. 486.5, I am notpersuaded that an order is warranted under that section.

200 The requested order would prohibit the publication of any informa-tion that could identify the undercover and cover police officers P.I., D.P.and D.C. The draft order goes on to particularize:

The names of witnesses P.I., D.P., and D.C. are prohibited from pub-lication, transmission or broadcast and the said witnesses shall onlybe identified in any publication, transmission or broadcast by the ini-tials P.I, D.P. and D.C.

No publication, transmission or broadcast of any evidence taken inthis trial shall be linked or cross-referenced to any previously pub-lished document, broadcast or transmission which identified P.I.,D.P. and D.C. by name or image.


The image or likenesses of P.I., D.P. and D.C. shall not be publishedin any document, broadcast or transmission.

The publication ban includes, but is not restricted to, broadcast onradio or television, print publication by electronic means, includingemail or internet.

201 Sgt. Jodrey asserts, “If the names and identities of the UC and Coverofficers involved were made public, undercover operations and the of-ficer’s personal safety would be jeopardized.” With respect, this bald as-sertion is not made out by the details set out in his affidavit.

202 Sgt. Jodrey explains that the requested initialization of the officers’names is because undercover officers usually use their real first names intheir pseudonym, or a nickname. For the reasons given by Sgt. Jodrey,this makes eminent sense.

203 But in these particular circumstances, the requested ban of “any infor-mation” that could tend to identify the officers is unwarranted, as is amandated use of initials. To do so would tend to keep from public lightthe identity of the officers who were found by the trial judge to havecoerced inculpatory statements and conduct by fear and intimidation.

204 Undercover officer D.P. is retired. There is no suggestion that hemight or would be the target of intimidation or retaliation. The coverofficer, D.C., is currently assisting with cover duties in Nova Scotia. As acover officer, he does not come in contact with suspects, but directs andoversees undercover officers. He may well be a “pool operator”, and, assuch, available from time to time to take part in undercover operations asneeded.

205 Undercover officer P.I. is described as a full time operator, and regu-larly works as a “cameo” UC. He is scheduled to start an undercoveroperation.

206 Notably, what is missing is any description of the impact on any un-dercover operation or on the personal safety of the officers from the ex-piry of the publication ban in May of 2015.

207 It is not in the interests of the administration of justice to create ananonymous police force. I am not satisfied that the request for a furtherban is necessary in order to prevent a serious risk to the proper adminis-tration of justice or is in the interest of the proper administration of jus-tice. I would therefore decline to order the requested ban.

Appeal dismissed.

R. v. Nuttall and R. v. Derbyshire: Abuse of Process 315

R. v. Nuttall and R. v. Derbyshire: Abuse of Process andUndercover Operations

Lisa Dufraimont*

R. v. Derbyshire1 and R. v. Nuttall2 are two recent cases in which courtshave found that police misconduct in undercover operations amounted toan abuse of process. In Nuttall, the judge also found that the two accusedhad been entrapped by police. These findings in themselves make Derby-shire and Nuttall noteworthy. The bar for establishing abuse of processon the basis of state conduct that does not touch on trial fairness is veryhigh, requiring the conduct to be “offensive to societal notions of fairplay and decency”3 such that “proceeding with a trial in the face of thatconduct would be harmful to the integrity of the justice system.”4 Thetest for entrapment is also quite demanding.5 Consequently, successfulclaims of abuse of process and entrapment are rare.6

In the 2014 case of R. v. Hart,7 however, the Supreme Court of Canadacalled for the doctrine of abuse of process to be “reinvigorated” to guard

* Osgoode Hall Law School, York University1 Reported above at p. 263.2 2016 BCSC 1404 (B.C. S.C.).3 R. v. Babos, 2014 SCC 16, 8 C.R. (7th) 1 (S.C.C.), at para. 35.4 Ibid. In Babos the Supreme Court further held that, in the “residual category”of cases where the alleged abuse of process does not touch on trial fairness,cases warranting a stay of proceedings will be extremely rare: ibid. at para. 44.See critical comments by Tim Quigley, “Babos: Balancing Test UnnecessarilyRestricts Residual Category for Stay as Abuse of Process” (2014) 8 C.R. (7th) 55and H. Archibald Kaiser, “Further Narrowing Access to a Stay of ProceedingsWhere the Integrity of the Judicial Process Is Implicated” (2014) 8 C.R. (7th) 59.5 R. v. Mack, [1988] 2 S.C.R. 903, 67 C.R. (3d) 1 (S.C.C.); R. v. Barnes, [1991]1 S.C.R. 449, 3 C.R. (4th) 1 (S.C.C.).6 See generally Don Stuart, Charter Justice in Canadian Criminal Law, 6th ed.(Toronto: Carswell, 2014) at 187–197.7 2014 SCC 52, 12 C.R. (7th) 221 (S.C.C.).


against the danger of abusive police conduct in Mr. Big operations.8 Thiscomment will argue that Derbyshire and Nuttall represent that reinvigo-rated doctrine of abuse of process as it applies to undercover police oper-ations more broadly. After presenting an overview of the undercover op-erations in question and the findings of the courts, the comment willconsider the link between these two recent cases and Hart, and concludewith some observations on the need for stronger police oversight of un-dercover operations.

The undercover operations and the courts’ response

Derbyshire and Nuttall both involved undercover police posing ascriminals and instilling fear in the targets of the operations. Apart fromthis important commonality, the operations were quite different. The op-eration in Derbyshire was short and intense: police officers posing asgangsters accosted the female accused in a parking garage, ordered herinto her car and aggressively demanded that she tell them everything sheknew about a murder. The trial judge found, and the Court of Appealagreed, that the officers used implied threats of physical harm to coercethe accused into making self-incriminating statements and revealingother evidence. It is perhaps a testament to the effectiveness of the of-ficers’ intimidation tactics that the accused was confessing within min-utes of their initial encounter. The trial judge determined that the policeconduct amounted to an abuse of process and that the appropriate remedywas to exclude the evidence obtained in the undercover operation. TheCrown led no further evidence and the accused was acquitted. The trialjudge’s findings and the acquittal were upheld by a unanimous NovaScotia Court of Appeal.

By contrast, the operation in Nuttall was lengthy and complex and in-volved the kind of extensive psychological manipulation of vulnerablepeople criticized in Hart.9 The two accused in Nuttall, a married couple,were found guilty by a jury of terrorism offences after they planted threeexplosive devices made from pressure cookers on the grounds of theBritish Columbia legislature in advance of Canada Day celebrations in2013.10 The devices were in fact inert and mainly constructed by police.

8 Ibid. at para. 114.9 See ibid. at para. 148 (Moldaver J.) and paras. 235–237 (Karakatsanis J.).10 The following summary of the facts is drawn from Nuttall, supra note 2.


The male accused, Nuttall, and the female accused, Korody, were recov-ering heroin addicts who were socially isolated, unemployed and livingon welfare. They spent most of their time in their basement apartment orrunning errands on foot in the immediate neighbourhood. Both were re-cent converts to Islam. Nuttall had been espousing violent jihadist be-liefs. Over a period of five months, police mounted an undercover opera-tion that culminated in the planting of the pressure cooker devices. Thedefence brought an application for a stay of proceedings based on theconduct of police in the undercover operation.

The undercover officer who had the most contact with the accused wasA., who presented himself as a Muslim businessman and an importantfigure in a sophisticated and well-financed terrorist organization. Thetwo accused also had interactions with undercover officers posing as as-sociates of A. Early in the operation, Nuttall performed jobs for A. andthe organization, including delivering packages. Nuttall was led to be-lieve these activities were nefarious, was compensated for this clandes-tine work, and was told not to talk to anyone about the organization. ByMarch 2013, Nuttall had developed a strong loyalty to A. and was alwaysanxious to please him. Over the course of the operation, both accusedisolated themselves from others and increasingly relied on A. fordirection.

During the operation, Nuttall shared a number of ideas about how hemight wage violent jihad. Most of these ideas were grandiose and fanci-ful: they included hijacking a nuclear submarine, storming the Esquimaltmilitary base, and building Qassam rockets to shoot toward the Parlia-ment buildings in Victoria. Occasionally Nuttall discussed ideas thatseemed more feasible, including shooting Canadian soldiers as they re-turned from Afghanistan. However, Nuttall considered that he could notact on this idea without permission from A. In fact, before the pressurecooker plan was developed, neither accused took any steps to act on anyof these ideas. Over a period of months and many interactions, A.pressed Nuttall to come up with a workable terrorist plan, but Nuttall wasunable to do so. Nuttall frequently asked for spiritual guidance, which A.sometimes offered. A. also discouraged Nuttall from seeking spiritualguidance from others. When Nuttall expressed doubts about whether itwas right to kill innocent people, A. offered him spiritual guidance thatprovided justifications for extremist violence.

Ultimately, police channelled the accused’s efforts into a plan to buildand plant pressure cooker devices. Nuttall bought most of the compo-


nents of the devices and did some of the work to construct them. How-ever, he needed constant supervision and guidance from undercover po-lice to complete these tasks. The only direct contributions Korody madeto the plan were researching targets on the internet and sanitizing thehotel room after the devices had been partially constructed. Undercoverpolice contributed to the terrorist plot in numerous significant ways, in-cluding by providing transportation for the accused and for the compo-nents and devices; providing the accused with money and food so theycould spend their money on the devices; providing the accused with aquiet and secure location to construct the devices; completing the con-struction of the pressure cooker devices by packing them with real andsimulated C4 explosive; supplying and installing simulated detonators;providing bags to transport the devices; and choosing the date, time andlocation where the devices would be planted.

Justice Bruce granted the application for a stay of proceedings, on twogrounds. First, she found that the defence established that the accusedwere entrapped by police. Police provided Nuttall and Korody with anopportunity to commit a crime when they unconditionally offered to pro-vide C4 explosive for the pressure cooker devices in June 2013. By thistime, the police should have been well aware that the jihadist ideas es-poused by both accused were fanciful and imaginary and that they lackedthe capacity to plan or execute any terrorist activity. Thus, Justice Brucefound that police offered both accused an opportunity to commit a terror-ism offence in the absence of a reasonable suspicion that they were al-ready engaged in criminal activity. This finding alone was sufficient toground the defence of entrapment and to warrant a stay of proceedings.

Entrapment was also established on the basis that police induced thecommission of the offence. As Justice Bruce explained:

This was an undercover operation in which the police took twomarginalized people, who had done no more than verbally fantasizeabout engaging in violence for jihadist purposes, and skillfullymanipulated them into participating in an act of terrorism that wasplanned almost entirely by the police and which could not have beenexecuted without overwhelming assistance from the police.11

Justice Bruce further held that the police tactics employed would haveinstilled fear in an average person and certainly instilled fear in the two

11 Ibid. at para. 671.


accused, who believed they would be killed if they did not followthrough with the plan. The accused were socially isolated, needy, naıve,and child-like, and police exploited these vulnerabilities by making A.into their sole trusted friend and companion. They became completelydependent disciples of A. The police misconducted themselves by offer-ing spiritual guidance and committing illegal acts in the undercover oper-ation. Justice Bruce concluded that the efforts by police to bring the ter-rorist plot to fruition “were persistent, intrusive and importuning andwere out of all proportion to what the defendants contributed to theplan.”12 The police conduct was egregious and amounted to entrapment.

Second, Bruce J. held that a stay was warranted because the police con-duct amounted to an abuse of process. The police unfairly and dispropor-tionately manipulated the accused to achieve a successful conclusion totheir undercover operation. As Justice Bruce held,

when the police manipulate marginalized persons and exploit theirvulnerabilities on several levels in order to push them into doingcriminal acts that they would be incapable of doing without over-whelming assistance from the police, their conduct is an abuse ofprocess.13

Police also engaged in multiple illegal acts without proper authorization,including facilitating and aiding and abetting terrorism offences. In thesecircumstances, Justice Bruce held, it could not be said that police acted ingood faith. Finally, it was an intolerable that police interfered with theaccused’s freedom of religion by offering religious guidance that pro-pelled the accused toward embracing violent jihadist beliefs.

R. v. Hart and abuse of process

In Hart,14 the Supreme Court of Canada warned that undercover opera-tions can become abusive. Hart involved a Mr. Big operation in whichthe police created a fictional criminal organization and invited the ac-cused’s participation in that organization with the goal of eliciting theaccused’s confession to a prior crime. The majority of the Supreme Courtannounced a new two-pronged approach to Mr. Big statements compris-

12 Ibid. at para. 718.13 Ibid. at para. 788.14 Supra note 7.


ing a new common law exclusionary rule focused on the probative valueand prejudicial effect of such statements, and “a more robust conceptionof the doctrine of abuse of process to deal with the problem of policemisconduct.”15 Writing for the majority, Moldaver J. said the followingabout the doctrine of abuse of process:

I acknowledge that, thus far, the doctrine has provided little protec-tion in the context of Mr. Big operations. This may be due in part tothis Court’s decision in R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R.535, where Binnie J., writing for the majority, described the Mr. Bigtechnique as “skillful police work” (para. 21). But the solution, in myview, is to reinvigorate the doctrine in this context, not to search foran alternative framework to guard against the very same problem.The first step toward restoring the doctrine as an effective guardagainst police misconduct in this context is to remind trial judges thatthese operations can become abusive, and that they must carefullyscrutinize how the police conduct them.16

Clearly, the two-pronged approach developed in Hart was centrally di-rected at Mr. Big operations. Indeed, the new rule of evidence was ex-plicitly limited in its application to the narrow context of Mr. Big opera-tions aimed at eliciting self-incriminating statements.17 The majorityexplained that the new rule of evidence “targets Mr. Big operations intheir present form”, but also recognized that the rule might be extendedto other contexts in the future.18

By contrast, the reinvigorated doctrine of abuse of process was not ex-plicitly limited to this context and, in the wake of Hart, it seemed possi-ble that it could have broader application.19 Indeed, while Hart explicitlyaimed to breathe new life into the doctrine in the context of Mr. Bigoperations, there were good reasons to think the reinvigoration of the

15 Ibid. at para. 84 [emphasis added].16 Ibid. at para. 114 [emphasis added].17 Ibid. at para. 85.18 Ibid. at footnote 5.19 For commentaries suggesting that the reinvigoration of the doctrine of abuseof process could apply in other contexts, see Steve Coughlan, “Threading To-gether Abuse of Process and Exclusion of Evidence: How it Became Possible toRebuke Mr. Big” (2015) 71 S.C.L.R. (2d) 415 at 435; Lisa Dufraimont, “Hartand Mack: New Restraints on Mr. Big and a New Approach to Unreliable Prose-cution Evidence” (2015) 71 S.C.L.R. (2d) 475 at 493.


doctrine might extend to other contexts. First, the doctrine of abuse ofprocess predates Hart and potentially applies in a wide range of circum-stances that have nothing to do with Mr. Big operations. Second, the dan-gers of abuse identified by the Supreme Court in Hart — including thatundercover police operations might become coercive or exploit vulnera-ble people20 — can and do arise in undercover operations that do notpresent all the features of a Mr. Big operation. Put simply, the forms ofpolice misconduct cautioned against in Hart occur both within andoutside the context of Mr. Big operations, and there is no principled rea-son why a “more robust conception of the doctrine of abuse of pro-cess”21 created to address those dangers should be limited to that narrowcontext. Finally, the very reason it became necessary to reinvigorate thedoctrine of abuse of process in the Mr. Big context is that the rules ofevidence and procedure that might have provided some check on policeconduct have been held not to apply to undercover police operationsoutside of detention: the voluntary confessions rule does not apply be-cause the target does not know the officers are persons in authority, andthe s. 7 pre-trial right to silence does not apply because the target is notdetained.22 Consequently, it would seem reasonable to extend the rein-vigorated doctrine of abuse of process at least far enough to cover otherundercover operations outside of detention.

Derbyshire and Nuttall confirm that that the reinvigorated doctrine ofabuse of process does apply beyond the context of Mr. Big operations, atleast in the context of other kinds of undercover police operations. Bothcases rely on Hart and take the view that the more robust doctrine ofabuse of process is not limited to Mr. Big cases. As Beveridge J.A. ex-plained in Derbyshire:

the common law doctrine of abuse of process is available to assesswhether police conduct crossed the line from skillful police work toconduct that, if condoned, would be harmful to the integrity of thejustice system. It has never been, nor should it be, limited to policemisconduct involved in “Mr. Big” operations. It is the coercivepower of the implied or indirect threats of harm to the accused or to

20 Supra note 7 para. 117.21 Ibid. at para. 84.22 Ibid. at para. 64.


others that matters, not whether the police had the time and resourcesto mount a full-fledged “Mr. Big” operation.23

Similarly, in Nuttall, Bruce J. held explicitly that the “‘more robust’abuse of process doctrine”24 recognized in Hart was relevant to the anal-ysis of the undercover operation in that case.

On their facts, both Derbyshire and Nuttall held important similaritieswith the Mr. Big cases. These were undercover operations in which po-lice posing as members of criminal organizations manipulated and intim-idated their targets. However, neither Derbyshire nor Nuttall involvedthe kind of Mr. Big operation that would attract the application of thenew common law rule of evidence introduced in Hart. In Derbyshire, theaccused was not invited to participate in the activities of a fictitious crim-inal organization; she was simply threatened by undercover police of-ficers posing as gangsters. In Nuttall, the operation looked very muchlike a Mr. Big operation except the goal was not to elicit confessions butto prompt the accused to commit terrorism offences for which they couldbe prosecuted. It was this crucial difference, coupled with the decision bypolice to run the undercover operation like a Mr. Big operation, that ledthe police in Nuttall to engage in a course of unauthorized illegal con-duct.25 When the police assisted the accused in committing the terroristoffences, Bruce J. held, the police themselves became aiders and abettorsand facilitators of those offences.

Like Hart, Derbyshire and Nuttall highlight the potential for undercoveroperations to become abusive when police use intimidation or manipu-late suspects’ vulnerabilities. One might hope that the failures of theprosecutions in these cases will encourage police to exercise greater carein undercover operations in the future.

Gaps in police oversight

One final commonality between Derbyshire and Nuttall deserves men-tion. In both cases, there is evidence that police were acutely aware ofthe dangers of their tactics becoming coercive and abusive, but that thisdid not stop the undercover officers from engaging in abusive conduct. In

23 Supra note 1 at para. 104.24 Supra note 2 at 59725 Ibid. at para. 819.


Derbyshire, the purpose of the undercover operation as initially approvedwas to prompt the accused to contact an acquaintance who was thoughtto be the perpetrator in the murder police were investigating. The planwas to intercept their communications as a way of advancing the investi-gation of the perpetrator. Once the officers were on the ground, the planchanged to one where officers would confront the accused in a publiclocation where she would be free to walk away. In the end, the under-cover officers accosted her in the parking garage of her home and or-dered her back into her car. The increase of coerciveness from the plan-ning stages to the execution of the operation is marked and suggests aneed for stronger internal police oversight of undercover operations.

Similar problems arose in Nuttall. The undercover operation dubbed“Project Souvenir” was overseen by high-ranking officers within theRCMP. Yet, the plan approved by the RCMP “undercover shop” did notcontemplate officers posing as members of a terrorist group.26 Early onand repeatedly throughout the operation, the undercover shop raised con-cerns about entrapment, cautioning that A. “had overly excited Mr. Nut-tall about doing jihadist acts and was giving him the capacity to carry outterrorist acts for which he lacked the resources and contacts.”27 The re-sponse of the officers directly involved in the operation was to sidelinethe undercover shop, which was supposed to be responsible for designingthe scenarios that made up the operation. Indeed, Bruce J. found that theteam commander directed the operation in a way that was “dictatorialand designed to eliminate dissenting views”28 and that he “wrested con-trol over the content and direction of scenarios from the undercover shopin early May 2013”,29 almost two months before the pressure cooker de-vices were planted. Of course, having institutional structures in place toprovide oversight is of no use if those structures can be circumvented, asit appears they were in this case. Both Nuttall and Derbyshire serve asreminders of the need for firm internal police oversight of undercoveroperations.

26 Ibid. at para. 57.27 Ibid. at para. 106.28 Ibid. at para. 821.29 Ibid.


[Indexed as: R. v. Crespo]

Her Majesty the Queen, Respondent and Fernando Crespo,Appellant

Ontario Court of Appeal

Docket: CA C59193

2016 ONCA 454

John Laskin, E.A. Cronk, B.W. Miller JJ.A.

Heard: March 8-9, 2016

Judgment: June 10, 2016

Offences –––– Sexual assault — General offence — Elements — Mistakenbelief in consent –––– No air of reality to claim of belief in consent — No evi-dence that complainant commenced sexual activity in state of amnesia — Ac-cused’s testimony self-serving and properly rejected.

The accused was charged with sexual assault of an acquaintance, P. The accusedhad recently begun seeing a woman who arranged a double date with anothercouple. After a night of heavy drinking, the four went to the accused’s apart-ment. The other couple went into the bedroom and fell asleep, with P on the bedand P’s boyfriend eventually falling on to the floor. After checking on herfriends, the accused’s date went home. P was awoken by someone having inter-course with her. When she realized it was the accused, she pushed him off. Theaccused left and went back to sleep on the sofa. P sent the complainant’s date aseries of text messages indicating that she has been raped by the accused. Shewas eventually able to awaken her boyfriend and they left. The accused wasconvicted and sentenced to 15 months’ imprisonment plus probation. He ap-pealed his conviction and sentence.

Held: The appeal was dismissed.

The trial judge had not committed a palpable and overriding error in failing toconsider evidence about P’s seductive behaviour earlier in the evening as rele-vant to the question of non-consent. P was asleep when the sexual activity com-menced and her earlier conduct was irrelevant since she could not haveconsented.

The accused argued for the first time on appeal that there was an air of reality tothe defence of mistaken belief in consent. He contended that the complainantwas in an alcohol-induced blackout and that she commenced the sexual activity.The defence of mistaken belief in consent requires more than a bare assertionthat the complainant appeared to be an active and willing participant. Otherwise,the defence would be prima facie available whenever a victim was asleep and

R. v. Crespo 325

the accused offered self-serving testimony as to the appearance of consent. Thetrial judge’s factual findings precluded the defence. There was no evidence thatP was in a state of amnesia. She recalled what happened before she fell asleepand being awoken by the accused having sex with her. The trial judge acceptedthese events and rejected the accused’s evidence, not merely because it contra-dicted the complainant’s version of events but because he had ample grounds todo so independently.

The sentence was not unfit. While the immigration consequences of the sentencewere not considered at trial, a sentence that would avoid those consequenceswould require a conditional sentence or a sentence of less than 6 months’ im-prisonment. Such a sentence would be manifestly unfit.

Cases considered by B.W. Miller J.A.:

R. v. Esau (1997), 1997 CarswellNWT 11, 1997 CarswellNWT 12, 116 C.C.C.(3d) 289, 148 D.L.R. (4th) 662, 214 N.R. 241, [1997] 7 W.W.R. 1, 7 C.R.(5th) 357, [1997] 2 S.C.R. 777, [1997] S.C.J. No. 71, [1997] A.C.S. No. 71(S.C.C.) — referred to

R. v. Ewanchuk (1999), 1999 CarswellAlta 99, 1999 CarswellAlta 100, 131C.C.C. (3d) 481, 169 D.L.R. (4th) 193, 235 N.R. 323, 22 C.R. (5th) 1, 232A.R. 1, 195 W.A.C. 1, 68 Alta. L.R. (3d) 1, [1999] S.C.J. No. 10, [1999] 6W.W.R. 333, [1999] 1 S.C.R. 330 (S.C.C.) — followed

R. v. Freckleton (2016), 2016 ONCA 130, 2016 CarswellOnt 2175, [2016] O.J.No. 777, 39 Imm. L.R. (4th) 158 (Ont. C.A.) — referred to

R. v. Garciacruz (2015), 2015 ONCA 27, 2015 CarswellOnt 601, [2015] O.J.No. 264, 17 C.R. (7th) 399, 320 C.C.C. (3d) 414, (sub nom. R. v. J.A.A.G.)329 O.A.C. 185 (Ont. C.A.) — distinguished

R. v. Nassri (2015), 2015 ONCA 316, 2015 CarswellOnt 6562, [2015] O.J. No.2311, 125 O.R. (3d) 578, 34 Imm. L.R. (4th) 173, 335 O.A.C. 137 (Ont.C.A.) — considered

R. v. Park (1995), 39 C.R. (4th) 287, 31 Alta. L.R. (3d) 1, 99 C.C.C. (3d) 1, 183N.R. 81, 169 A.R. 241, 97 W.A.C. 241, [1995] 2 S.C.R. 836, 1995 Carswell-Alta 221, 1995 CarswellAlta 412, [1995] S.C.J. No. 57, EYB 1995-66866(S.C.C.) — referred to


Criminal Code, R.S.C. 1985, c. C-46s. 273.2(b) [en. 1992, c. 38, s. 1] — referred to

Immigration and Refugee Protection Act, S.C. 2001, c. 27s. 36(1)(a) — considered

APPEAL by accused from conviction and sentence on charges of sexual assault.

Najma Jamaldin, for AppellantMary-Ellen Hurman, for Respondent


B.W. Miller J.A.:

(1) Overview1 After a two-day trial before a judge alone, the appellant Fernando

Crespo was convicted of the sexual assault of P.I., a friend of a womanhe had begun dating one month earlier. He was sentenced to 15 months’imprisonment, plus 18 months’ probation. Because the appellant is a per-manent resident of Canada and not a citizen, a consequence of the sen-tence is that he will be subject to removal from Canada at the conclusionof his custodial sentence. The appellant appeals from both conviction andsentence.

2 For the reasons that follow, I would dismiss both the conviction andsentence appeals.

(2) Background3 The appellant and L.I. had just begun dating. L.I. arranged an evening

out so that she could introduce the appellant to her friend P.I. and P.I.’spartner, O.B. After a night of heavy drinking and dancing, the four wentto the appellant’s apartment. The appellant, P.I., and O.B. were all heav-ily intoxicated. L.I. was less so. At some point in the evening, P.I. wasfeeling unwell and went to lie down on the bed in the appellant’s bed-room. O.B. went with her. P.I. fell asleep on the bed, with O.B. besideher. O.B. later ended up asleep on the floor beside the bed.

4 L.I. and the appellant engaged in some foreplay in the living roombefore L.I. decided to go home. She went to check on P.I. in the bed-room, and found her asleep on her stomach with her dress hiked up. L.I.pulled P.I.’s dress back down over her underwear, and then went to catcha taxi. The appellant walked L.I. to the taxi, and then returned to theapartment.

5 Shortly thereafter, P.I. was awakened by the feeling of the appellanton top of her, engaging in sexual intercourse. P.I. was still drunk anddisoriented, and it took her a minute to realize that it was the appellantwho was having sex with her, and not O.B. When she realized it was theappellant, she exclaimed and pushed him off. He left the room calmlyand went to sleep on the couch in the living room. She tried to wakenO.B., without initial success. She then sent the first of a series of textmessages to L.I., telling her that she had just been raped by the appellant.She was eventually able to awaken O.B. The appellant and O.B. ex-changed words and O.B. and P.I. left the apartment.

R. v. Crespo B.W. Miller J.A. 327

6 The appellant was convicted of sexual assault.

(3) Issues7 The appellant advances three main grounds on his conviction appeal.

First, that the trial judge erred in finding that P.I. did not consent to sexwith him. Second, that the trial judge erred in not considering the defenceof honest but mistaken belief in consent. Third, that the trial judge erredby admitting into evidence text messages from P.I., L.I., and the appel-lant. With respect to sentence, the appellant submits that the trial judgeerred in not considering the immigration consequences to the appellant insentencing and failing to consider a conditional sentence.

(4) Discussion

(1) The defence of consent8 The appellant argues that the trial judge erred in rejecting the appel-

lant’s defence that P.I. consented to having sex with him. The appellantargues that it was a palpable and overriding error for the trial judge not tohave considered L.I.’s evidence of P.I.’s attempted seduction of the ap-pellant earlier in the evening and other material evidence said to under-mine P.I.’s claim not to have consented.

9 The insurmountable obstacle to this submission is the trial judge’sfinding that P.I. was asleep when the appellant commenced intercourse,and thus lacked the capacity to consent at that time. Her prior conduct istherefore irrelevant to the question of whether she consented. On thefacts as found by the trial judge, she could not have consented. The trialjudge committed no error in rejecting the appellant’s defence of consent.

(2) The defence of honest but mistaken belief in consent10 Although the appellant did not, at trial, advance the defence of honest

but mistaken belief in consent, he now argues that there was an air ofreality to the defence and that the trial judge erred by not considering it. Ido not agree that there was a sufficient factual foundation for this de-fence, as required by R. v. Ewanchuk, [1999] 1 S.C.R. 330 (S.C.C.), atparas. 41-49, and would not give effect to this ground of appeal for thereasons set out below.

11 Unlike the defence of consent, it is possible for the defence of honestbut mistaken belief in consent to be made out in circumstances where thecomplainant was asleep (or otherwise incapable of consenting) but ap-peared to be awake and consenting: R. v. Esau, [1997] 2 S.C.R. 777


(S.C.C.), at paras. 17-25. However, establishing this defence requiresmore than a bare assertion from the accused that the complainant was anactive and willing participant: R. v. Park, [1995] 2 S.C.R. 836 (S.C.C.),at para. 20. A bare assertion, however, is all that the appellant provided.

12 The appellant argues that the circumstances of the case support hisbelief that P.I. was not asleep, but awake and in a blacked-out state whenhe sat down on the bed beside her. She initiated sexual activity with him,he says, and they engaged in sexual intercourse while she remained in ablacked-out state. Her amnesiac state accounts for her lack of memory ofthe commencement of sexual activity.

13 The appellant argues that P.I.’s lack of memory of the initiation ofsexual activity is as consistent with P.I. participating in sexual activity ina blacked-out state as it is with P.I. having been asleep. As an evidentialmatter, he objects that P.I. simply has no memory of the incident andtherefore no evidence to give as to whether she was an active and willingparticipant. The only evidence on that point, the appellant says, is hisown and it should be accepted because no one else observed what washappening and his evidence was thus uncontradicted.

14 This evidential submission is deeply troubling. Were we to give effectto it, it would make the defence of honest but mistaken belief in consentprima facie available whenever a victim was asleep at the time of anassault, and the accused provided self-serving and unanswerable testi-mony as to the appearance of consent. This would be a dangerous expan-sion of the doctrine and I would reject it.

15 The appellant’s main submission is that the trial judge erred by failingto consider that P.I. could have been awake but in a blacked-out state,actively engaging in sexual activity with the appellant, and thus leadinghim to reasonably believe that she was consenting.

16 For this argument, the appellant relies heavily on R. v. Garciacruz,2015 ONCA 27, 320 C.C.C. (3d) 414 (Ont. C.A.), an appeal concerningthe sufficiency of a trial judge’s reasons. In Garciacruz, this court heldthat the trial judge’s factual findings were equally consistent with thecomplainant having remained asleep throughout intercourse, as with thealternative inference that the complainant consented to intercourse in astate of amnesia (at para. 67).

17 Garciacruz, however, is readily distinguished from the present case.Significantly, the complainant’s evidence in Garciacruz supported theconclusion that she was in a blacked-out state well in advance of sexualactivity with the accused, and remained in that state until she awoke the


next morning. On the complainant’s evidence, everything went black af-ter she had a few sips of gin and tonic at a bar, and she had only a fewscattered and vague recollections thereafter (at para. 48). She was notintoxicated. She had virtually no memory of events between leaving thebar and waking up the next morning, including walking out of the bar,getting into a taxi, and going to the accused’s apartment, in the companyof the accused and her cousin (at para. 56).

18 This court held in Garciacruz that the evidence supported two possi-ble inferences: either the complainant was asleep at the time of sexualintercourse and did not consent, or she was in an amnesiac state fromearlier in the evening, fell asleep, continued in the amnesiac state whenshe awoke, and then actively engaged in sexual intercourse with the ac-cused while retaining no memory of it. The trial judge’s error inGarciacruz was a failure to give reasons that would have allowed thisCourt to determine whether the trial judge had considered the latter pos-sibility, and his reasons for not accepting that it raised a reasonabledoubt.

19 Unlike Garciacruz, the trial judge’s factual findings in this case fore-close the argument that the appellant advances. The factual findings inthis case do not support the conclusion that P.I. was in an amnesiac orblacked-out state at any point in the evening prior to lying down andgoing to sleep on the appellant’s bed. There was a finding that she hadsome lapses in her memory due to alcohol consumption, and some disa-greement with other witnesses about what occurred that evening. How-ever, neither of these findings supports a conclusion that P.I. was in anamnesiac state. Unlike the complainant in Garciacruz, P.I. was aware ofevents and circumstances until the point that she fell asleep. And unlikethe complainant in Garciacruz, she specifically remembered lying downto fall asleep and being awakened by the appellant having sex with her.She remembered doing many things immediately thereafter: trying toawaken O.B., texting L.I., calling her mother.

20 The appellant’s difficulties with the defence of honest but mistakenbelief in consent do not stop there. The defence is only available wherean accused has taken reasonable steps to ascertain consent: s. 273.2(b) ofthe Criminal Code (R.S.C. 1985, c. C-46); Esau, at para. 49. On the ap-pellant’s evidence, the complainant looked him in the eyes, wrapped herlegs around him, and helped him to remove his pants. The accused ar-gues that this interaction amounts to having taken reasonable steps toascertain consent. The trial judge, however, rejected the appellant’s evi-


dence that this interaction occurred. There is no basis for appellate inter-ference with this finding.

21 The appellant’s evidence was rejected by the trial judge on its ownterms, and not simply because it conflicted with the complainant’s evi-dence. There were ample grounds to do so. The trial judge held:

The accused was an extremely poor witness. He was almost comi-cally evasive when confronted with obvious inconsistencies [...] Icannot accept his trial evidence that he remembered the complainantgiving her consent in light of the contrary position he took with hisfriends and with police [...] He swore to police on the lives of thosehe loved that he had no recollection. He says that was a lie. His evi-dence about the pills and the drink was so convoluted and evasive asto be unbelievable [...]

I simply do not believe the accused nor does his evidence raise areasonable doubt in my mind. Moreover, on all the evidence I amsatisfied that he came upon the complainant in the bedroom, ob-served that she was passed out and took advantage of her.

22 In light of these factual findings, the trial judge was not obliged toconsider whether the appellant had an honest but mistaken belief in con-sent as that defence simply had no air of reality.

(3) Admissibility of text messages23 Text messages between L.I. and P.I., the appellant and L.I., and P.I.

and the appellant were admitted into evidence with the appellant’s con-sent. The appellant brought a fresh evidence motion on appeal to intro-duce an affidavit from his defence counsel at trial stating that the appel-lant only consented to the admission of the text messages for thepurposes of refreshing memory and for impeachment on cross-examina-tion. He did not consent to the admission of P.I.’s texts for the truth oftheir contents.

24 The appellant argues that the conviction rests on the texts, which arehearsay evidence and ought not to have been admitted, notwithstandingthat trial counsel did not object to their use, and indeed made extensiveuse of them in cross-examination.

25 I would accept the fresh evidence, but it does not alter my conclusionon the admissibility and alleged misuse of the text messages. The diffi-culty with the appellant’s submission is that all the witnesses testifiedand adopted the statements made in the texts, with the exception of one


text from P.I. that she could not recall having sent. The hearsay objectiontherefore falls away.

26 The appellant further objects that the trial judge erred by improperlyrelying on some of the text messages as prior consistent statements tobolster the credibility of P.I. A review of the trial judge’s reasons, how-ever, does not support this argument. In any event, as noted above, thetrial judge rejected the appellant’s evidence on its own terms.

(4) Sentence27 The appellant received a sentence of 15 months in custody. He ap-

peals on the basis that the sentence is overly lengthy and disproportionatewhen considered in conjunction with the immigration consequences ofthe sentence. He also argues that the sentencing judge erred by failing toconsider a conditional sentence. The appellant is an Ecuadorian national,and he introduced fresh evidence that he faces deportation at the conclu-sion of the custodial portion of his sentence.

28 Although the sentencing judge imposed the sentence requested by thedefence, defence counsel did not appear to be alive to the immigrationissue, and did not bring it to the attention of the sentencing judge. Theappellant relies on the judgment of this court in R. v. Nassri, 2015 ONCA316, 125 O.R. (3d) 578 (Ont. C.A.), for the proposition that sentencingjudges can take into account immigration consequences whensentencing.

29 The difficulty with the appellant’s submission is that, by operation ofs. 36(1)(a) of the Immigration and Refugee Protect Act, S.C. 2001, c. 27,the appellant will face deportation if he receives any custodial sentenceof six months or longer. However, a custodial sentence of less than sixmonths, or a conditional sentence, would be manifestly unfit for the cir-cumstances of this offender and this offence on the facts as found by thetrial judge. As the Crown argues, consideration of immigration conse-quences cannot justify an otherwise inadequate sentence: R. v.Freckleton, 2016 ONCA 130 (Ont. C.A.).

30 I see no basis upon which to interfere with the sentence imposed, andI would decline to do so.

(5) Disposition31 For the reasons given, I would grant leave to admit the fresh evidence

concerning the admission of text messages, and the fresh evidence re-


lated to the sentence appeal. I would dismiss both the appeal as to con-viction and as to sentence.

John Laskin J.A.:

I agree.

E.A. Cronk J.A.:

I agree.

Appeal dismissed.

R. v. Rogers 333

[Indexed as: R. v. Rogers]

John Scott Rogers (Appellant) and Her Majesty the Queen(Respondent)

Saskatchewan Court of Appeal

Docket: CACR2467

2016 SKCA 105

Jackson, Whitmore, Jackson JJ.A.

Heard: January 15, 2016

Judgment: August 19, 2016

Charter of Rights and Freedoms –––– Unreasonable search and seizure [s.8] — Authorized by law –––– Police knocking on accused’s door after receiv-ing impaired driving tip — Knocking on door for purpose of gathering evidenceagainst accused — Purpose outside implied license to knock — Searchunreasonable.

Post-trial procedure –––– Appeal from conviction or acquittal — Right ofappeal of provincial Attorney-General — Miscellaneous –––– Crown makingno submissions with regard to exclusion of evidence — Trial judge excludingevidence — Trial judge reasonably concluding Crown seeing exclusion as inevi-table — Crown not entitled to appeal exclusion.

Police received a tip about a possible impaired driver, acting on which they wentto the accused’s apartment and knocked on his door. Based on their interactionwith him the police formed the opinion that he was intoxicated and made abreathalyser demand. The accused failed that test and was charged with drivingwhile impaired and with driving while over the legal limit. On a voir dire, thetrial judge concluded that the police had violated the accused’s s. 8 rights byknocking on his door for the purpose of obtaining evidence. The Crown made nosubmission with regard to s. 24(2), and so the trial judge excluded the evidencearising from the breathalyser test and interaction. As a result the trial judge ac-quitted the accused on both counts, though the evidence of the initial tip aboutthe accused’s impairment had not been excluded. The Crown appealed and thesummary conviction appeal court set aside both acquittals and ordered a newtrial. The accused appealed.

Held: The appeal was granted and the acquittals at trial were restored.

There is an implied license to knock on a person’s door, and police do not actoutside of that implied license merely by knocking in order to investigate acrime. However, when their purpose is not merely to investigate in general butto knock on the door for the purpose of securing evidence against the occupant,


they act outside of the implied license. This principle applies to offences such asdrinking and driving where observing the person opening the door will give vis-ual, auditory and olfactory clues about the person’s participation in the crimeunder investigation.

Here, the trial judge concluded that the officers knocked for the purpose of ob-taining evidence and this conclusion was unassailable. Given that the search wastherefore unlawful, there was an unreasonable search.

The trial judge excluded the evidence after the Crown made no submissions onthe question, despite having been given the opportunity to do so. It was reasona-ble for the trial judge to conclude that the Crown had concluded that exclusionof the evidence was inevitable. In the circumstances it was not possible to con-clude that the trial judge made any error in analysing the question of exclusion.

The trial judge did not consider the evidence of the initial tip in decidingwhether the accused could still be found guilty of impaired driving, and Crowncounsel at trial did not draw this possibility to the trial judge’s attention. Thatevidence concerned a brief interaction, and it might have been the Crown’s viewthat it could not support a finding of proof beyond a reasonable doubt. In anadversarial system a trial judge should be entitled to rely on counsel to raise anissue of concern, and it was not clear why the Crown did not raise the point. Inthe circumstances the appeal was allowed on this ground as well.

Comment

The line noted in this case between “knocking to investigate a crime” and“knocking to obtain evidence” could in practice be a difficult one to draw, butthat does not mean it is not worth drawing. Relying on the actual purpose in anofficer’s mind to decide whether that officer acted within his or her powers isperfectly sensible and is not unique to this context. Precisely the same physicalsearch will or will not be lawful depending on whether the officer is subjectivelyconducting it as a search incident to arrest, for example (R. v. Caslake (1998), 13C.R. (5th) 1 (S.C.C.)). A search of an accused’s pockets might or might not belawful, depending on whether the purpose is to look for weapons or for evidence(R. v. Mann, 2004 SCC 52 (S.C.C.)). An otherwise valid arrest will becomeunlawful if it was made based on personal enmity or race (R. v. Storrey, [1990] 1S.C.R. 241, 75 C.R. (3d) 1 (S.C.C.)). Reliance on purpose is not problematic inprinciple.

However, there is a fine distinction between investigating generally, and investi-gating by means of the sensory observations that will be made of the accused ashe or she opens the door, and it could be a difficult issue for a judge to decide.One possibility is that the officers themselves might not have given any realthought to the distinction: in that event it seems pretty arguable that they wouldbe acting outside their powers, since they ought to have thought about it. An-

R. v. Rogers 335

other possibility is that officers will have given the wrong kind of thought to theissue: “if you say X instead of Y you will be ok” seems like the kind of oversim-plified understanding of the issues which sometimes creeps into police culture.

In all sorts of contexts we expect judges to make reasonable inferences aboutwhat was actually in a witness’s mind, whether that conforms with the testimonyof the witness or not, based on the surrounding circumstances and the other evi-dence. In the end, this is one more occasion where judges will be called upon toperform that task.

Steve Coughlan

Schulich School of Law, Dalhousie University

Cases considered by Jackson J.A.:

Canada (Director of Investigation & Research, Combines Investigation Branch)v. Southam Inc. (1984), [1984] 2 S.C.R. 145, (sub nom. Hunter v. SouthamInc.) 11 D.L.R. (4th) 641, (sub nom. Hunter v. Southam Inc.) 55 N.R. 241,33 Alta. L.R. (2d) 193, (sub nom. Hunter v. Southam Inc.) 55 A.R. 291, 27B.L.R. 297, (sub nom. Hunter v. Southam Inc.) 2 C.P.R. (3d) 1, 41 C.R. (3d)97, (sub nom. Hunter v. Southam Inc.) 9 C.R.R. 355, 84 D.T.C. 6467, (subnom. Hunter v. Southam Inc.) 14 C.C.C. (3d) 97, (sub nom. Director ofInvestigations & Research Combines Investigation Branch v. Southam Inc.)[1984] 6 W.W.R. 577, 1984 CarswellAlta 121, 1984 CarswellAlta 415,[1984] S.C.J. No. 36 (S.C.C.) — considered

R. c. Cote (2011), 2011 SCC 46, 2011 CarswellQue 10407, 2011 CarswellQue10408, [2011] S.C.J. No. 46, 87 C.R. (6th) 1, 421 N.R. 112, (sub nom. R. v.Cote) [2011] 3 S.C.R. 215, (sub nom. R. v. Cote) 276 C.C.C. (3d) 42, (subnom. R. v. Cote) 342 D.L.R. (4th) 77, (sub nom. R. v. Cote) 246 C.R.R. (2d)213 (S.C.C.) — considered

R. v. Atkinson (2012), 2012 ONCA 380, 2012 CarswellOnt 7020, [2012] O.J.No. 2520, 110 O.R. (3d) 721, 292 O.A.C. 231, 287 C.C.C. (3d) 544, 260C.R.R. (2d) 221 (Ont. C.A.) — considered

R. v. Chomik (2011), 2011 ABPC 152, 2011 CarswellAlta 769, [2011] A.J. No.500, 15 M.V.R. (6th) 144, 234 C.R.R. (2d) 109 (Alta. Prov. Ct.) — referredto

R. v. Cole (2012), 2012 SCC 53, 2012 CarswellOnt 12684, 2012 CarswellOnt12685, [2012] S.C.J. No. 53, D.T.E. 2012T-731, 96 C.R. (6th) 88, 223L.A.C. (4th) 1, 290 C.C.C. (3d) 247, 353 D.L.R. (4th) 447, 436 N.R. 102,2012 C.L.L.C. 210-059, 297 O.A.C. 1, [2012] 3 S.C.R. 34, 269 C.R.R. (2d)228, 128 O.R. (3d) 639 (note) (S.C.C.) — followed

R. v. Desrochers (2007), 2007 CarswellOnt 2257, 47 M.V.R. (5th) 315, 155C.R.R. (2d) 102, [2007] O.J. No. 1482 (Ont. S.C.J.) — considered

R. v. Desrochers (2008), 2008 ONCA 255, 2008 CarswellOnt 1844, 58 M.V.R.(5th) 16, 172 C.R.R. (2d) 241, [2008] O.J. No. 1273 (Ont. C.A.) — referredto


R. v. Edwards (1996), 45 C.R. (4th) 307, 192 N.R. 81, 26 O.R. (3d) 736, 104C.C.C. (3d) 136, 132 D.L.R. (4th) 31, 33 C.R.R. (2d) 226, 88 O.A.C. 321,[1996] 1 S.C.R. 128, 1996 CarswellOnt 2126, [1996] S.C.J. No. 11, 1996CarswellOnt 1916, EYB 1996-67692 (S.C.C.) — referred to

R. v. Evans (1996), 45 C.R. (4th) 210, 191 N.R. 327, 104 C.C.C. (3d) 23, 131D.L.R. (4th) 654, 33 C.R.R. (2d) 248, 69 B.C.A.C. 81, 113 W.A.C. 81,[1996] 1 S.C.R. 8, 1996 CarswellBC 996, 1996 CarswellBC 996F, [1996]S.C.J. No. 1, EYB 1996-67062 (S.C.C.) — considered

R. v. Feeney (1997), 1997 CarswellBC 1015, 115 C.C.C. (3d) 129, 146 D.L.R.(4th) 609, 91 B.C.A.C. 1, 148 W.A.C. 1, 44 C.R.R. (2d) 1, 7 C.R. (5th) 101,[1997] 6 W.W.R. 634, [1997] S.C.J. No. 49, [1997] 2 S.C.R. 13, 212 N.R.83, 1997 CarswellBC 1016, REJB 1997-00866 (S.C.C.) — referred to

R. v. Fowler (2006), 2006 NBCA 90, 2006 CarswellNB 483, 2006 CarswellNB484, 35 M.V.R. (5th) 178, 40 C.R. (6th) 398, 144 C.R.R. (2d) 322, 304N.B.R. (2d) 106, 788 A.P.R. 106, [2006] N.B.J. No. 370 (N.B. C.A.) —considered

R. v. Grant (2009), 2009 SCC 32, 2009 CarswellOnt 4104, 2009 CarswellOnt4105, 66 C.R. (6th) 1, [2009] S.C.J. No. 32, [2009] A.C.S. No. 32, 245C.C.C. (3d) 1, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 391 N.R. 1, 253O.A.C. 124, [2009] 2 S.C.R. 353, 193 C.R.R. (2d) 1, 97 O.R. (3d) 318(note), EYB 2009-161617 (S.C.C.) — considered

R. v. Grotheim (2001), 2001 SKCA 116, 2001 CarswellSask 735, [2002] 2W.W.R. 49, 17 M.V.R. (4th) 176, 213 Sask. R. 141, 260 W.A.C. 141, 161C.C.C. (3d) 49, [2001] S.J. No. 694 (Sask. C.A.) — considered

R. v. Kokesch (1990), [1990] 3 S.C.R. 3, [1991] 1 W.W.R. 193, 121 N.R. 161,51 B.C.L.R. (2d) 157, 61 C.C.C. (3d) 207, 1 C.R. (4th) 62, 50 C.R.R. 285,1990 CarswellBC 255, 1990 CarswellBC 763, [1990] S.C.J. No. 117, EYB1990-67022 (S.C.C.) — considered

R. v. Krzychowiec (2004), 2004 NSPC 60, 2004 CarswellNS 470, 228 N.S.R.(2d) 14, [2004] N.S.J. No. 436 (N.S. Prov. Ct.) — referred to

R. v. Laurin (1997), 113 C.C.C. (3d) 519, 98 O.A.C. 50, 6 C.R. (5th) 201, 42C.R.R. (2d) 125, 1997 CarswellOnt 683, [1997] O.J. No. 905 (Ont. C.A.) —considered

R. v. LeClaire (2005), 2005 NSCA 165, 2005 CarswellNS 635, 137 C.R.R. (2d)68, 208 C.C.C. (3d) 559, [2005] N.S.J. No. 547, 34 M.V.R. (5th) 196 (N.S.C.A.) — considered

R. v. LeClaire (2006), 2006 CarswellNS 215, 2006 CarswellNS 216, 138 C.R.R.(2d) 375 (note), [2006] S.C.C.A. No. 63, 356 N.R. 394 (note), 258 N.S.R.(2d) 397 (note), 824 A.P.R. 397 (note) (S.C.C.) — referred to

R. v. MacDonald (2014), 2014 SCC 3, 2014 CarswellNS 16, 2014 CarswellNS17, [2014] S.C.J. No. 3, 303 C.C.C. (3d) 113, 366 D.L.R. (4th) 381, 7 C.R.(7th) 229, 2014 CSC 3, 453 N.R. 1, 1081 A.P.R. 353, 341 N.S.R. (2d) 353,[2014] 1 S.C.R. 37, 298 C.R.R. (2d) 190 (S.C.C.) — followed

R. v. Rogers 337

R. v. MacKenzie (2013), 2013 SCC 50, 2013 CarswellSask 655, 2013 Carswell-Sask 656, [2013] S.C.J. No. 50, 363 D.L.R. (4th) 381, 4 C.R. (7th) 260,[2013] 12 W.W.R. 209, 448 N.R. 246, 303 C.C.C. (3d) 281, 423 Sask. R.185, 588 W.A.C. 185, 290 C.R.R. (2d) 99, [2013] 3 S.C.R. 250 (S.C.C.) —considered

R. v. Mann (2004), 2004 SCC 52, 2004 CarswellMan 303, 2004 CarswellMan304, 185 C.C.C. (3d) 308, 21 C.R. (6th) 1, [2004] S.C.J. No. 49, 241 D.L.R.(4th) 214, 324 N.R. 215, 187 Man. R. (2d) 1, 330 W.A.C. 1, [2004] 11W.W.R. 601, [2004] 3 S.C.R. 59, 122 C.R.R. (2d) 189, REJB 2004-68801(S.C.C.) — considered

R. v. Nguyen (2004), 2004 CarswellOnt 2608, [2004] O.J. No. 2698, [2004]O.T.C. 546 (Ont. S.C.J.) — referred to

R. v. Parr (2016), 2016 BCCA 99, 2016 CarswellBC 546, [2016] B.C.J. No.444, 27 C.R. (7th) 131, 334 C.C.C. (3d) 131, 384 B.C.A.C. 35, 663 W.A.C.35 (B.C. C.A.) — considered

R. v. Petri (2003), 2003 MBCA 1, 2003 CarswellMan 2, 32 M.V.R. (4th) 109,170 Man. R. (2d) 238, 285 W.A.C. 238, 171 C.C.C. (3d) 553, [2003] M.J.No. 1, 9 C.R. (6th) 170, 104 C.R.R. (2d) 95 (Man. C.A.) — considered

R. v. Rogers (2012), 2012 SKPC 42, 2012 CarswellSask 255, [2012] S.J. No.227, 394 Sask. R. 302, 258 C.R.R. (2d) 62 (Sask. Prov. Ct.) — referred to

R. v. Rogers (2014), 2014 SKQB 167, 2014 CarswellSask 378, [2014] S.J. No.350, [2014] 9 W.W.R. 772, 69 M.V.R. (6th) 186, 448 Sask. R. 1 (Sask.Q.B.) — referred to

R. v. Stillman (1997), 113 C.C.C. (3d) 321, 144 D.L.R. (4th) 193, 5 C.R. (5th) 1,[1997] 1 S.C.R. 607, 209 N.R. 81, 185 N.B.R. (2d) 1, 472 A.P.R. 1, [1997]S.C.J. No. 34, 42 C.R.R. (2d) 189, 1997 CarswellNB 107, 1997 CarswellNB108 (S.C.C.) — considered

R. v. Van Wyk (1999), 1999 CarswellOnt 4822, 6 M.V.R. (4th) 248, [1999] O.J.No. 3515, 104 O.T.C. 161 (Ont. S.C.J.) — considered

R. v. Van Wyk (2002), 2002 CarswellOnt 2819, [2002] O.J. No. 3144 (Ont.C.A.) — considered

R. v. Vu (1999), 1999 CarswellBC 640, 133 C.C.C. (3d) 481, 23 C.R. (5th) 302,[1999] B.C.J. No. 707, 121 B.C.A.C. 66, 198 W.A.C. 66, 63 C.R.R. (2d)341, 1999 BCCA 182 (B.C. C.A.) — considered

R. v. Vu (1999), 250 N.R. 194 (note), 135 B.C.A.C. 320 (note), 221 W.A.C. 320(note), [1999] S.C.C.A. No. 330 (S.C.C.) — referred to



Generally — referred tos. 8 — considereds. 9 — considereds. 10 — considered


s. 24(2) — consideredCriminal Code, R.S.C. 1985, c. C-46

s. 2 “dwelling-house” — referred tos. 253(1)(a) — referred tos. 253(1)(b) — referred tos. 839 — referred to

Mental Health Act, R.S.B.C. 1996, c. 288Generally — referred to

APPEAL by accused from judgment reported at R. v. Rogers (2014), 2014SKQB 167, 2014 CarswellSask 378, [2014] S.J. No. 350, [2014] 9 W.W.R. 772,69 M.V.R. (6th) 186, 448 Sask. R. 1 (Sask. Q.B.), allowing appeal from judg-ment acquitting accused of impaired driving and driving with excessive alcohol.

John Scott Rogers, for himselfW. Dean Sinclair, Q.C., for Respondent

Jackson J.A.:

I. Introduction1 This appeal concerns the powers of the police to knock on the door of

a residence for the purpose of securing evidence as to whether the occu-pant, who was recently seen driving a motor vehicle, is impaired.

2 In the context of this case, the police received a tip about an impaireddriver. Acting on the tip, a police officer knocked on the door of JohnRogers’s apartment and formed the opinion that he was intoxicated. Sub-sequent police interaction with Mr. Rogers led to a breathalyzer demandand readings in excess of the legal limit. John Rogers was charged withdriving while his ability to operate a motor vehicle was impaired by alco-hol (s. 253(1)(a) of the Criminal Code, RSC 1985, c C-46) and drivingover .08 (s. 253(1)(b) of the Criminal Code).

3 Mr. Rogers was acquitted at trial of both counts. The trial judge foundthat the officer had knocked on his apartment door for the purpose ofobtaining evidence against the occupant. The trial judge found that thisconstituted an unreasonable breach of s. 8 of the Charter (R. v. Rogers,2012 SKPC 42, 394 Sask. R. 302 (Sask. Prov. Ct.) [Voir dire Deci-sion]).1 When the trial resumed, the Crown made no submissions as to

1 The trial judge found that there were other breaches: specifically, of s. 9 and s.10 of the Charter, but they are of no consequence in this appeal.

R. v. Rogers Jackson J.A. 339

whether any of the evidence should be excluded under s. 24(2) of theCharter and the defence referred only briefly to R. v. Grant, 2009 SCC32, [2009] 2 S.C.R. 353 (S.C.C.) [Grant ]. The trial judge excluded all ofthe evidence and entered not guilty verdicts. The Crown appealed to thesummary conviction appeal court.

4 The summary conviction appeal court judge set aside both acquittalsand ordered a new trial (R. v. Rogers, 2014 SKQB 167, [2014] 9 W.W.R.772 (Sask. Q.B.) [Rogers ]). Mr. Rogers appeals from the decision of thesummary conviction appeal court to this Court. He is self-represented.

5 I have concluded for the reasons that follow that the appeal should beallowed and the decision of the Provincial Court restored.

II. Background6 The case began on May 11, 2010, when Matthew Robblee saw a man

driving a red car back into his wife’s parked vehicle. Damage to bothvehicles was negligible, but Mr. Robblee thought the driver was intoxi-cated. He phoned the police, giving them the driver’s description and themake and model and licence plate number of the red car.

7 Constable Dechief was placed in charge of the matter. Dispatch ser-vices told him that John Rogers was the registered owner of the vehicleand where Mr. Rogers lived. This turned out to be an apartment buildingin Estevan, Saskatchewan.

8 Constable Dechief went directly to this building and he entered whathe recalled was an unlocked exterior door and approached the door ofMr. Rogers’s apartment. When he knocked on the door, Mr. Rogersopened the door and, while the two remained on either side of the doorjamb, Cst. Dechief formed the opinion that Mr. Rogers was impaired.The officer described his speech as “very slurred”.

9 Upon being asked whether he had been involved in an accident, Mr.Rogers responded that he thought someone had run into him and he of-fered to show Cst. Dechief the damage to his own vehicle. In order to doso, Mr. Rogers left his apartment and walked some 20 feet to the stair-way. Cst. Dechief followed behind him, noting that his gait was un-steady. He described him as “stumbling” and “staggering”. Mr. Rogersshowed Cst. Dechief some damage on the passenger side of his vehicle,which “Cst. Dechief described as a scuff” (Rogers at para 21).

10 Deciding that he had grounds to make an approved screening devicedemand for breath samples, Cst. Dechief radioed another officer to bring


him the screening device. Mr. Rogers had difficulty following the in-structions and ultimately Cst. Dechief took him to the detachment wherehe then made a formal demand for a breath sample using the station’sinstrument (the Intoxilizer 5000C). Mr. Rogers complied, demonstratingreadings significantly in excess of the prohibited limit.

III. Trial Judge’s Decision11 The trial judge narrowed the issues by asking first whether the officer

entered the “dwelling-house” of the defendant, and, in the alternative,whether the officer had exceeded the authority conferred by the impliedlicence to knock.

12 Relying on R. v. Krzychowiec, 2004 NSPC 60, 228 N.S.R. (2d) 14(N.S. Prov. Ct.) ; R. v. Nguyen, [2004] O.T.C. 546 (Ont. S.C.J.) ; and R.v. Chomik, 2011 ABPC 152, 15 M.V.R. (6th) 144 (Alta. Prov. Ct.), thetrial judge concluded that the hallways and secure underground garagesto apartments in multiple unit complexes fall under the definition of“dwelling-house” contained in s. 2 of the Criminal Code. In a few shortparagraphs, he concluded that the officer’s entry into the apartmentbuilding was an entry into Mr. Rogers’s “dwelling-house”.

13 In the alternative, relying on R. v. Evans, [1996] 1 S.C.R. 8 (S.C.C.)[Evans ], the trial judge held that Cst. Dechief exceeded the implied li-cence to knock that the common law confers on the police. He summa-rized Cst. Dechief’s evidence in this manner:

[7] ... The constable testified he was going to the apartment as part ofhis investigation for a motor vehicle accident to see if the defendanthad been the driver and to see if he was the driver, whether his abilityto operate a motor vehicle was impaired.

(Voir dire Decision)

From this, he found that Cst. Dechief approached Mr. Rogers’s door “forthe purpose of searching and obtaining evidence against the occupant”(at para 9).

14 The trial judge then reached two legal conclusions based on Evans :

(a) the officer had “exceeded the authority conferred by the impliedlicence to knock” (at para 8); and

(b) the officer was “engaged in a search of the occupant’s home” (atpara 9).

15 The trial judge found the search to be unreasonable. When the Crownmade no submissions as to whether the evidence should be excluded, the


trial judge excluded all of the evidence under s. 24(2) of the Charter. Heacquitted Mr. Rogers not only of the .08 charge, but of the charge ofimpaired driving without appearing to address the evidence given outsideof the voir dire.

IV. Decision of the Summary Appeal Court Judge16 The summary appeal court judge analyzed the s. 8 Charter issue in

relation to the trial judge’s conclusion regarding whether the hallway ofan apartment complex constitutes part of a “dwelling-house” under fourheadings: (i) the development of the reasonable expectation of privacyprinciple; (ii) examples of that principle enunciated in Evans , R. v.Laurin (1997), 98 O.A.C. 50 (Ont. C.A.) [Laurin], and R. v. Feeney,[1997] 2 S.C.R. 13 (S.C.C.) ; (iii) the application of the principle in casesinvolving drivers of vehicles; and (iv) the application of the reasonableexpectation of privacy principle to this case.

17 In his review of the factors from R. v. Edwards, [1996] 1 S.C.R. 128(S.C.C.) at paras 45(5) to 45(6), the appeal court judge concluded thefollowing:

(a) Mr. Rogers stood in the doorway to his suite when the officer,who stayed in the hallway, questioned him about “an accident in-volving his vehicle” (at para 124(vi));

(b) Constable Dechief “did not at any time enter Mr. Rogers’s suite.He remained in the hallway. There was no search of Mr. Rogers’ssuite and no evidence was seized from inside the suite. While Mr.Rogers could claim an exclusive privacy interest in his suite, hecould claim only a reduced privacy interest in the hallway of theapartment building” (at para 124(ii));

(c) Mr. Rogers was a tenant of the three-story apartment building andhe did not “claim any ownership in the building” (at para 124(iii));

(d) There was no suggestion that anyone had a “compelling privacyinterest in the hallway. Hallways are not normally used for privatepersonal activities such as eating, grooming, socializing or sleep-ing, as would be the case within the tenants’ suites” (at para124(iv));

(e) Mr. Rogers’s subjective expectation of privacy was low as the“only point at which Mr. Rogers indicated any regret in his deci-sion to cooperate with the officer was when he refused initially toblow into the ASD while seated in the police cruiser, apparently


upset that he had been ‘pulled out of his house’” (at para 124(vi));and

(f) There was no “objective reasonableness of any expectation of pri-vacy in the hallway” (at para 124(vii)).

18 Following this review, he held that no one has a reasonable expecta-tion of privacy in the common hallways of an apartment building:

[130] As regards the issue of police intrusion into apartment buildingcorridors, I agree with the statement of Graesser J. in Nguyen [2008ABQB 721] that the general trend of the law supports a finding thatresidents of multi-unit condominium buildings have no reasonableexpectation of privacy in the common property whether there is asecurity system in place or not. There is no reason why this generalrule would not also apply to apartment buildings where the ownershave no ownership interest in the common property, as was the casehere. The common areas o[f] such multi-unit residential complexesare not considered to be part of a “dwelling house” for law enforce-ment purposes. Police do not trespass when they enter into the com-mon hallways of apartment buildings and prior legal authorization isnot required. This, in my view, puts occupants of apartment buildingand condominium complexes on the same footing as occupants ofsingle family dwellings in terms of allowing police officers to ap-proach the door of the home or apartment in order to communicate inthe normal way, person to person, with the occupant.

(Emphasis added)

19 Specifically, in relation to Mr. Rogers, he concluded that he “did nothave a reasonable expectation of privacy in the hallway of the apartmentbuilding” (at para 125).

20 On the second limb of the trial judge’s approach to s. 8, the appealcourt judge found the officer’s actions were compatible with the impliedlicence to knock:

[128] ... [Mr. Rogers] was not arrested in his dwelling. Cst. Dechiefapproached Mr. Rogers’ home in order to communicate with him re-garding a collision and a report of a possible impaired driver. Hisactions were compatible with the implied licence to knock. He didnot conduct any unauthorized activity which could be considered aninvasion of Mr. Rogers’ privacy. Observing the condition or demean-our of the person who answers the door is a non-invasive techniquethat is not conscriptive. In these circumstances, such police actioncould not be considered a “search”.

(Emphasis added)


21 Relying principally on R. v. Van Wyk (1999), 104 O.T.C. 161 (Ont.S.C.J.) at para 33, affirmed [2002] O.J. No. 3144 (Ont. C.A.) DohertyJ.A. [Van Wyk], the appeal court judge interpreted the law as follows:

[129] ... where the sole purpose of the police officer is to ask ques-tions of the home owner, no evidence is gathered until the occupantchooses to speak. Investigative questioning does not exceed thebounds of the implied right to approach and knock and is not trespas-sory or in breach of s. 8 of the Charter.

(Emphasis added, Rogers)

In the result, he concluded that “the attendance by Cst. Dechief at thedoor of Mr. Rogers’ apartment did not constitute an unreasonablesearch” (at para 131) and that the trial judge therefore erred by finding abreach of s. 8 of the Charter. With this finding, it was not necessary forthe appeal court judge to address the s. 24(2) issue. He ordered a newtrial on the .08 charge.

22 On the question of whether the trial judge erred by acquitting Mr.Rogers of both charges, the appeal court judge found that the trial judgeerred by failing to consider whether there was sufficient evidence fromMr. Robblee, Sgt. Cowan and Cst. Dechief to prove the charge of im-paired driving beyond a reasonable doubt (at para 171). He ordered anew trial in relation to the impaired driving charge as well.

V. Issues on Appeal23 The principal issues on this appeal are as follows:

(a) whether the appeal court judge properly concluded that Mr. Rog-ers’s s. 8 Charter rights were not violated;

(b) whether the trial judge properly applied s. 24(2) of the Charter;and

(c) whether the summary appeal court judge erred by finding the trialjudge erred by acquitting Mr. Rogers of the impaired drivingcharge as well as the .08 charge?

These issues raise questions of law for which leave can be granted, thusgrounding Mr. Rogers’s right of appeal to this Court (see s. 839 of theCriminal Code).

24 Following the analytical framework set out in R. v. Cole, 2012 SCC53 (S.C.C.) at para 36, [2012] 3 S.C.R. 34 (S.C.C.) , the first issue neces-sarily requires consideration of the following:


(a) Did the appeal court judge err when he concluded that the trialjudge erred by finding that the officer’s conduct constituted a“search”?

(b) If no, was the search unreasonable?25 There is a remaining issue that was addressed by the trial judge and

the appeal court judge, which is whether Cst. Dechief had reasonablegrounds to make an approved screening device demand — apart fromany consideration of whether s. 8 of the Charter had been breached andthe evidence not excluded. Given my conclusions in relation to s. 8, thisissue is moot in this Court and need not be considered.

VI. Analysis

A. Whether the appeal court judge properly concluded that Mr.Rogers’s s. 8 Charter rights were not violated?

1. Did the appeal court judge err when he concluded that the trial judgeerred by finding that the officer’s conduct constituted a “search”?

26 In my view, the fact that Mr. Rogers lives in an apartment building isof marginal interest to the resolution of this appeal. That is not to say thatthe appeal court judge erred with respect to his statements of the lawpertaining to the development of the reasonable expectation of privacyprinciple or his examples of the application of the reasonable expectationof privacy principle generally, but I conclude that the appeal turns onEvans and its application to the facts as found by the trial judge.

27 Crown counsel on appeal submits that it is settled law that the policedo not exceed the implied licence to knock simply because they are in-tent on investigating a potential criminal offence. He submits further thata police officer who is looking for information or evidence about a sus-pected offence, or even about an actual offence, which the police officerhas reasonable grounds to believe has been committed, is not conductinga “search” for s. 8 purposes for that reason alone. In support of this pro-position, he relies upon Laurin; R. v. Vu, 1999 BCCA 182, 133 C.C.C.(3d) 481 (B.C. C.A.) , leave to appeal to SCC refused [1999] S.C.C.A.No. 330 (S.C.C.) [Vu ]; R. v. Grotheim, 2001 SKCA 116, 161 C.C.C.(3d) 49 (Sask. C.A.) [Grotheim ]; R. v. Petri, 2003 MBCA 1, 171 C.C.C.(3d) 553 (Man. C.A.) [Petri ]; and Van Wyk. He states that all of theofficers in these cases were looking for information and evidence aboutpossible or actual crimes but none of them violated s. 8 simply because


they approached a residence and knocked on the door in an effort to fur-ther their investigation.

28 I agree with Crown counsel’s submissions, as stated in the above par-agraph, but Crown counsel goes on to extract from the above cases theprinciple that the police have an implied power to knock on someone’sdoor for the purpose of investigating a possible drinking and driving of-fence, even if they do so with the intention of gathering evidence aboutthe state of an occupant’s sobriety. In my view the cases do not go thatfar.

29 The investigation of the crime of drinking and driving, or a similaroffence, necessarily entails the potential to obtain evidence from con-versing with or observing the person answering the door. Nonetheless,based on my review of the authorities, I have concluded that if a trialjudge finds on all of the evidence a police officer knocked on the door toa residence for the purpose of securing evidence against the occupant,the officer is conducting a search within the meaning of s. 8 of the Char-ter. This principle applies equally to drinking and driving offences aswell as to other offences where observing the person opening the doorwill give visual, auditory and olfactory clues about the person’s partici-pation in the crime under investigation. Evans remains the leading au-thority on point, and nothing in the jurisprudence extends the principlesarticulated by the majority in that decision as far as Crown counselsuggests.

30 In Evans , the Court had to consider first, whether the actions of thepolice in knocking on someone’s door for the purposes of determiningwhether they were growing marijuana constituted a search and, secondly,if so, was the search reasonable. Sopinka J., writing for the majority, ac-knowledged that the common law recognizes an implied licence to ap-proach the door of a dwelling house and knock, but the majority foundthat there are limits to the licence.

31 For Sopinka J., the implied invitation to knock extends no furtherthan is required to permit “convenient communication with the occupantof the dwelling” (at 18). With this finding, other consequences flow:

As a result, only those activities that are reasonably associated withthe purpose of communicating with the occupant are authorized bythe “implied licence to knock”. Where the conduct of the police (orany member of the public) goes beyond that which is permitted bythe implied licence to knock, the implied “conditions” of that licence


have effectively been breached, and the person carrying out the unau-thorized activity approaches the dwelling as an intruder.

The issue then becomes whether police conduct in approaching some-one’s door in any given case is “associated with the purpose of commu-nicating with the occupant”.

32 In Evans , Sopinka J. discussed the importance of determining whatthe police intend when they knock on someone’s door. The officer’s in-tention in knocking on someone’s door determines whether the police areengaged in a search:

Despite the difficulties involved in proving police “intention” whenthey approach a person’s home, I disagree with Major J. that the in-tention of the police is irrelevant in assessing the legality of their ac-tions. As stated above, the implied licence to knock extends only toactivities for the purpose of facilitating communication with the oc-cupant. Anything beyond this “licensed purpose” is not authorized bythe implied invitation. ... where the police, as here, purport to rely onthe invitation to knock and approach a dwelling for the purpose, interalia, of securing evidence against the occupant, they have exceededthe bounds of any implied invitation and are engaging in a search ofthe occupant’s home. Since the implied invitation is for a specificpurpose, the invitee’s purpose is all-important in determiningwhether his or her activity is authorized by the invitation.

(Italic emphasis in original, underline emphasis added, at 19-20)

33 Sopinka J. supported his analysis by referring to what he found to besound policy reasons to focus on the police officer’s purpose or intentionin deciding to approach the door to someone’s home:

[T]here are sound policy reasons for holding that the intention of thepolice in approaching an individual’s dwelling is relevant in deter-mining whether or not the activity in question is a “search” within themeaning of s. 8. If ... intention is not a relevant factor, the policewould then be authorized to rely on the “implied licence to knock”for the purpose of randomly checking homes for evidence of criminalactivity. The police could enter a neighbourhood with a high inci-dence of crime and conduct surprise “spot checks” of the privatehomes of unsuspecting citizens, surreptitiously relying on the impliedlicence to approach the door and knock. Clearly, this Orwellian vi-sion of police authority is beyond the pale of any “impliedinvitation”.

(Italic emphasis in original, underline emphasis added, at 21)


34 He went on to hold that “where evidence clearly establishes that thepolice have specifically adverted to the possibility of securing evidenceagainst the accused through “knocking on the door”, the police have ex-ceeded the authority conferred by the implied licence to knock”. Signifi-cantly for Evans , Sopinka J. found that exceeding the authority con-ferred by the implied licence constitutes a “search”:

For these reasons, I conclude that individuals in the position of theEvans have a reasonable expectation of privacy in the approach totheir home, an expectation that is waived for the purpose of facilitat-ing communication with the public. Where members of the public(including police) exceed the terms of this waiver, and approach thedoor for some unauthorized purpose, they exceed the implied invita-tion and approach the door as intruders. As a result, where the police,as here, approach a residential dwelling for the purpose of securingevidence against the occupant, the police are engaged in a “search”of the occupant’s home.

(Emphasis added, at 21-22)

In the result in Evans , the conduct of the police in approaching the ac-cused’s home and sniffing for marijuana exceeded the limits of the im-plied licence to knock and therefore constituted a search.

35 Supreme Court jurisprudence continues to follow and apply Evans .For example, in R. c. Cote, 2011 SCC 46, [2011] 3 S.C.R. 215 (S.C.C.) ,the appellant’s spouse, Mr. Hogue, was transported to the hospital with aprojectile in his head. According to the majority, “before officers arrivedat Ms. Cote’s residence, the police knew they were in all likelihood deal-ing with a bullet wound to the back of the head. They were also awarethat the victim had been transported to the hospital from the appellant’saddress earlier that evening” (at para 7). When the officers arrived at Ms.Cote’s residence, they explained that they were there to find out whathad happened earlier that evening and to make sure the premises weresafe, but the trial judge held that “their explanations did not reflect theirtrue intentions” (at para 9).

36 In resolving the appeal, the majority of the Supreme Court noted thatthe trial judge had rejected the Crown’s implied invitation to knock argu-ment because the lights in the residence had been shut off, and, even ifthis did not retract the invitation, permission accorded by the implied in-vitation was exceeded “because the police had expressly contemplatedthe possibility of recovering evidence against the appellant when theywent to her home, illustrated by the fact that the police deliberately with-held from the appellant the fact that Mr. Hogue had been wounded by a


bullet” (emphasis added, at para 12). The majority did not find any errorin the trial judge’s conclusion: “Given this intention, the police exceededthe implied permission to approach and knock. Therefore, the search wasnot legally justified on this basis.”

37 In R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37 (S.C.C.) [Mac-Donald ], the police responded to a noise complaint from a concierge atMr. MacDonald’s building. One police officer attended at his door andknocked, asking for the music to be turned down. Mr. MacDonald re-sponded by slamming the door shut. Another police officer attended atthe condominium unit and knocked and kicked the door, shouting that hewas from the police. Ultimately Mr. MacDonald answered the door andappeared to be holding a “black and shiny” object behind his leg when heanswered the door. One of the officers pushed the door open further ena-bling him to identify the object as a gun.

38 In answering the question of whether the second officer’s actionsconstituted a search, the majority in MacDonald referred to Evans as a“leading case on what constitutes a search for the purposes of s. 8” (atpara 25). The majority affirmed that knocking on the door of a residencewill not be considered an invasion of privacy constituting a search if thepurpose is to communicate with the occupant:

[26] There is no question that individuals have a reasonable, indeed astrong, expectation of privacy in their homes (R. v. Godoy, [1999] 1S.C.R. 311, at para. 19; R. v. Feeney, [1997] 2 S.C.R. 13; R. v.Silveira, [1995] 2 S.C.R. 297), as well as in the approaches to theirhomes (Evans, at para. 21). However, Evans also established that thepolice have an implied licence to approach the door of a residenceand knock. Doing so will not be considered an invasion of privacyconstituting a search if the purpose of the police is to communicatewith the occupant. But “[w]here the conduct of the police ... goesbeyond that which is permitted by the implied licence to knock, theimplied “conditions” of that licence have effectively been breached,and the person carrying out the unauthorized activity approaches thedwelling as an intruder” (Evans, at para. 15). In such circumstances,the police action constitutes a “search”.

(Emphasis added)

39 Applying these principles to the facts of the case before it, the major-ity found that the officer’s actions were initially compatible with the im-


plied licence to knock, but he exceeded the licence when he pushed thedoor open:

[27] Initially, Sgt. Boyd’s actions were compatible with the impliedlicence to knock. He approached Mr. MacDonald’s door, knocked onit and kicked it for the purpose of communicating to the occupantthat he needed to turn his music down. After Mr. MacDonald hadopened the door, however, Sgt. Boyd’s purpose in pushing it openfurther was to get a better view of what was in his hand (A.R., at pp.168-69). Simply put, Mr. MacDonald’s implied waiver of his privacyrights did not extend that far. Speaking or shouting through the dooror knocking on it falls within the waiver; pushing it open further doesnot. Sgt. Boyd’s action of pushing the door open further constitutedan intrusion upon Mr. MacDonald’s reasonable privacy interest in hisdwelling.

(Emphasis added)

40 The authorities cited by the Crown (Laurin, Vu , Grotheim , Petri andVan Wyk,) do not extend the principles from Evans or create an excep-tion for drinking and driving cases. In Laurin, the police used the hall-ways of an apartment building to smell marijuana. Using this evidence,the police officers then gained access to the apartment proper with theuse of a search warrant. The Court of Appeal concluded that the policeofficers’ use of the hallway to smell marijuana did not constitute asearch:

[39] ... The police officers making their way to the appellant’s apart-ment were entitled to be in the hallway, as were other tenants of thebuilding, their visitors, repair people, the landlord, and so on. I do notthink that the fact that they were engaged in an investigation of acomplaint meant that they had no right to use the common hallway toattend at the door of the appellant’s apartment. Their presence wasnot dependent on the invitation of the appellant, express or implied. Irefer to the fact that the outer doors of the building were not lockedor otherwise secured.

(Emphasis added)

41 In Vu , the police knocked on the door of an apartment unit to confirmthe identity of a person who had sold cocaine to an undercover policeofficer. At trial, this was found to constitute a search leading to the ex-clusion of the evidence. The Court of Appeal took a different approachthan the trial judge. After reviewing Canada (Director of Investigation &Research, Combines Investigation Branch) v. Southam Inc., [1984] 2S.C.R. 145 (S.C.C.) ; R. v. Kokesch, [1990] 3 S.C.R. 3 (S.C.C.) ; Evans ;


and R. v. Stillman, [1997] 1 S.C.R. 607 (S.C.C.) , McEachern C.J.B.C.for the British Columbia Court considered the appeal through the lens ofreasonableness and whether the evidence should be admitted under theold Stillman test. McEachern C.J.B.C. did not actually decide whetherthe police actions constituted a search, and if so, whether the search wasreasonable. Instead, he resolved the appeal by admitting the evidenceunder s. 24(2) of the Charter:

[38] Untrammeled by authority I would conclude that the conduct ofthe officers in this case was entirely reasonable. They believed onreasonable grounds that an offence had been committed and it wasprudent to obtain some corroborating evidence (particularly as thesting was continuing and no arrest would be made at that time) andalso to ensure that at the end of the sting, the wrong person would notbe arrested or charged. Walking to the door and knocking on it con-stituted a minimal interference with the privacy interest of the occu-pant, who was not obliged to answer the knock. This is far differentfrom the trespass relied on in Kokesch, but similar in some respectsto Evans.

. . .

[42] But I do not have to decide that question in this case. That isbecause I would admit the evidence in any event under s. 24(2). Thecase for the admission of this evidence is far stronger than it was inEvans, except possibly for the act of looking at the accused. If thatmakes the evidence conscripted, which I doubt, I still do not agreethat no conscripted evidence can ever be admitted under s. 24(2).Such an absolute prohibition cannot be found in the language of s.24(2) and the balance between whether admission or rejection wouldbring the administration of justice into disrepute falls very decidedlyin favour of admission. In fact, I believe rejecting this evidence onthe basis of either trespass in these circumstances, or “using thebody” of the accused for identification by simply looking at him in anon-invasive way, would clearly bring the administration into seriousdisrepute.

(Emphasis added, Vu)

42 In Petri , after receiving a tip of erratic driving, the police attended atthe home of the registered owner of the vehicle. They knocked on thedoor and a male person answered it. After confirming that he was theregistered owner of the truck, the police officers entered his house. Oneof the officers noted symptoms of impairment and asked the accused ifhe had been the driver of the truck. Upon receiving an affirmative re-sponse, he placed the accused under arrest. The trial judge found a


breach of s. 8 of the Charter. Kroft J.A., for the Court of Appeal, wassatisfied, however, that the police had approached the home in the nor-mal course of their work “out of a legitimate desire to communicate withits occupant (if any), and not for the purpose of securing evidence againstthe accused” (at para 8).

43 In Grotheim , this Court found that the officer went to the door “forthe purpose alone of talking to the occupants about the apparent acci-dent” and not for the purpose of making an arrest or of conducting asearch (at para 25). Unlike in this appeal, where the officer’s testimonyindicates that his purpose was not just to investigate but to determinewhether Mr. Rogers was impaired, in Grotheim , the officer’s intentionwas to ask about the accident, making his presence on the driver’s door-step lawful.

44 In Van Wyk, witnesses told the police that a large truck caused anaccident in which an individual was seriously injured. The police con-nected Mr. Van Wyk to the truck by motor vehicle registration records.They attended at his home without a search warrant. Before theyknocked on the door, they inspected the truck with a flashlight. The of-ficers then knocked on the door and identified themselves, without stat-ing the purpose of their visit. Mr. Van Wyk’s wife invited them insideand summoned her husband. The police asked Mr. Van Wyk some ques-tions about the accident, which he answered. The police then told himthey had witnesses who said he caused the accident, and arrested him.The trial judge found the police wanted to speak to Mr. Van Wyk “todetermine the identity of the person driving the truck and trailers at thetime of the accident under investigation” (at para 23). He found nothingobjectionable in what the police did at the door of the residence. In doingso, he wrote the following:

[33] Where the sole purpose of the police officer is to ask questionsof the homeowner, nothing can be gathered by the government, in thesense of unwitting disclosure by the occupant, until he or she choosesto speak. The police intent of facilitating communication, even inves-tigative questioning, does not exceed the bounds of the implied rightto approach and knock and is, accordingly, not trespassory or inbreach of s. 8 of the Charter.

(Emphasis added)

45 Both the appeal court judge in the case at bar and the Crown refer tothis passage, but it does not resolve a case such as this one on appeal.The trial judge in Van Wyk was not considering a case where the police


approached someone’s home to investigate a crime like drinking anddriving where it is likely that, by engaging the occupant in conversation,the police will be able to gather grounds to make an approved screeningdevice demand. I also note that in Van Wyk, the trial judge did find thepolice breached s. 8 by using a flashlight to look at Mr. Van Wyk’s truckbecause he found that their purpose in doing so was to gather evidence.On appeal, the court considered only one argument: the effect of the ap-pellant’s background on his decision to cooperate with the police. Theappellate Court wrote the following ([2002] O.J. No. 3144 (Ont. C.A.)):“We reject that argument. Hill J. made findings of fact none of which arechallenged. He carefully applied the established law on the meaning ofdetention to those facts. Appeal dismissed” (at para 2). In light of thenarrowness of the appeal in Van Wyk, I would hesitate to say that theCourt of Appeal had endorsed an expansive view of police powers be-yond that which the trial judge needed to decide for the purposes of theappeal before him.

46 There are numerous other applications of the implied licence to knockprinciple from all levels of court. Often, the line between when the policeintend to investigate a crime and when they intend to secure evidence inrelation to it is not easy to perceive; but, in my view, none of the appel-late authorities stand for the proposition urged upon us by the Crown inthis appeal that the Court can ignore the express purpose of the police inapproaching a dwelling house. The most noteworthy of the appellate de-cisions that I have considered are R. v. LeClaire, 2005 NSCA 165 (N.S.C.A.) at para 15, (2005), 208 C.C.C. (3d) 559 (N.S. C.A.) , leave to ap-peal to SCC refused [2006] S.C.C.A. No. 63 (S.C.C.) [LeClaire ]; R. v.Fowler, 2006 NBCA 90, 40 C.R. (6th) 398 (N.B. C.A.) [Fowler ]; R. v.Desrochers (2007), 155 C.R.R. (2d) 102 (Ont. S.C.J.) , affirmed 2008ONCA 255 (Ont. C.A.) [Desrochers ]; R. v. Atkinson, 2012 ONCA 380,110 O.R. (3d) 721 (Ont. C.A.) [Atkinson ]; and R. v. Parr, 2016 BCCA99, 334 C.C.C. (3d) 131 (B.C. C.A.) [Parr ].

47 LeClaire comes closest to extending the law to permit the police in-vestigating a drinking and driving offence to use the implied licence toknock to gather evidence of drinking but, in the end, the Court drawsback to saying “the conduct of the police did not amount to a searchwithin the meaning of s. 8 of the Charter, because their purpose whenthey went onto the property of the appellant was to investigate the com-mission of an offence” (at para 34).


48 Fowler and Desrochers are both examples of appellate decisions sus-taining a trial decision on the basis of the judge’s findings of fact. InFowler , the Court wrote the following: “the police were not engaged in asearch when they approached and knocked on the door of Mr. Fowler’sresidence, since their purpose was to effect convenient communicationwith the occupant and not to obtain incriminating evidence against Mr.Fowler” (at para 33). In Desrochers , the appeal Court similarly enunci-ated the following: “the officer did not go to the door under a pretext andwith the intention of conducting an unlawful search of the home” (at para1).

49 In Atkinson , however, the Ontario Court of Appeal makes a clearstatement regarding the limits of the implied invitation to knock princi-ple. The Court acknowledged, based on Evans , that “where police spe-cifically advert to the possibility of securing evidence against an accusedby “knocking on the door”, they have exceeded the authority conferredon them by the implied licence to knock” (at para 47). The trial judgehad not made a finding regarding the intention of the police, but the ap-peal court found that the police “approached the home in the hope ofobtaining evidence linking the appellant to the burglary” (at para 73).Applying Evans to the facts, the appeal Court held that the conduct of thepolice amounted to a search and breached the appellant’s rights under s.8 of the Charter.

50 In Parr , the most recent of the appellate authorities, the British Co-lumbia Court of Appeal dismissed an appeal on the basis that the trialjudge had made clear factual findings following the voir dire that “theofficer who initially entered upon [Mr. Parr’s] property did so for thelimited purpose of facilitating communication with the occupants of theresidence, and not to further an investigative aim” (at para 7). The officerattended at Mr. Parr’s residence after receiving a call from an officer inanother detachment who had arrested Mr. Parr under the provisions ofthe Mental Health Act, RSBC 1996, c 288, and asked the officer to see ifhe could locate Mr. Parr’s fiancee (at paras 14-15). Mr. Parr was knownto the attending officer as being the subject of an ongoing grow op inves-tigation (at para 16). The officer noted the smell of marihuana when hewas at Mr. Parr’s residence and this information formed part of an Infor-mation to Obtain that led to a search warrant being granted. The appealCourt held that “Provided the police act for a purpose falling within thescope of the implied invitation to knock principle, and for no other rea-son, the fact they are aware evidence might be acquired in the course of


the entry does not make them “intruders” acting outside the scope of thedoctrine” (at para 55).

51 None of these authorities, or those mentioned by the Crown, stand forthe proposition that when the police are investigating a drinking anddriving offence, they may knock on the door of a residence to gathergrounds to make a breath demand or otherwise determine whether thedriver has been drinking.

52 The critical finding in this appeal, which distinguishes it from othersmentioned in these reasons, is that the trial judge found that Cst. Dechiefknocked on Mr. Rogers’s door “for the purpose of ... obtaining evidenceagainst the occupant” (at para 9). The Crown challenges this finding, butbased on the evidence, it appears to be unassailable.

53 After extensive examination and cross-examination, Cst. Dechief tes-tified as follows:

Q And from the very beginning it was an investigation into apossible impaired driver, correct?

A Possible.

Q It was, therefore, a Criminal Code investigation.

A Yes.

Q So your purpose in attending at Mr. Rogers’ home was to de-termine whether he had been the person driving, correct?

A Yes.

Q And more importantly, whether his ability to operate a motorvehicle was impaired.

A Yes.

Q And you would agree that the observation made of a sus-pected impaired driver’s appearance, demeanour, speech, andactions are critical pieces of investigation in an impaired driv-ing investigation?

A Yes. They are what form my grounds.

Q And you knew that if someone answered the door to Mr. Rog-ers’ apartment, you would be immediately able to make ob-servations about that person?

A That’s when I started making my observations of him becausethat’s the way we’re trained to do it. Whether or not he hadbeen driving was a question to be asked and that’s, of course,when I asked him about the driving. And he did tell me thathe was involved in an accident at that time which led me to


believe more than gave me the suspicion that, of course, hewas driving and he was there at that time and which is when Idecided to keep observing as he offered to show me the acci-dent or the scuff mark on his car which, you know, in the endled to some of the observations before I decided that therewere grounds to take the next step, right.

Q But going back to my question, you knew that the minute youopened the door you would be able to gather evidence regard-ing Mr. Rogers.

A Not necessarily. The minute he opened the door is when Iwould start observing to determine whether or not I had —

Q Right.

A — any grounds.

Q If there was evidence to be found, it would be gleaned by youimmediately up on him opening the door.

A Possibly, yes.

Q And those are observations which would further your Crimi-nal Code investigation.

A Yes.

Q Correct?

A Yes.

(Emphasis added, transcripts at 88-90)

In my view, this testimony supports the trial judge’s conclusion that theofficer approached Mr. Rogers’s apartment door to secure evidence.

54 For these reasons, I conclude that the appeal court judge erred byfinding that the trial judge had misinterpreted the law pertaining to theimplied licence to knock. I agree with the trial judge that the case turnson the question of the proper application of Evans to the facts.2

2 It should be noted that the Court received no argument to the effect that the“implied licence to knock” has been expanded by R. v. Mann, 2004 SCC 52,[2004] 3 S.C.R. 59 (S.C.C.) , or R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R.250 (S.C.C.) . I do note, however, that Iacobucci J. for the majority in R. v.Mann noted that “[i]ndividuals should expect a lesser amount of privacy in pub-lic areas frequently patrolled by police than they do in their homes or offices, forexample” (at para 76). Similarly, in R. v. MacKenzie , Moldaver J. reiterated that“in contexts such as the home ... courts have long recognized a heightened pri-vacy interest ...” (at para 32).


2. Was the search unreasonable?55 After finding that Cst. Dechief’s actions constituted a search, the trial

judge held the search to be unreasonable and therefore a breach of s. 8 ofthe Charter:

[11] As set out in Evans, a warrantless search is presumed unreasona-ble and the Crown has the onus of showing that it was reasonable. Asfound in Evans, if there is no valid warrant the search of a dwelling isunreasonable, and following Evans I find that the search in this mat-ter to be a breach of s. 8 of the Charter.

(Voir dire Decision)

56 On appeal to the summary conviction appeal court, the Crown did notcontest this finding. Nor does it contest the finding here. While the trialjudge’s analysis might have been more fulsome, given the Crown’s posi-tion on the issue, nothing further need be said on the point for the pur-poses of this appeal.

B. Whether the trial judge properly applied s. 24(2) of the Charter?57 At the close of the voir dire, counsel for the Crown and the defence

were given “leave to argue the remedy under s. 24(2) of the Charter” (atpara 28). On the day set for argument, Crown counsel was the first tospeak. He said, “I have been instructed that the Crown is not to make anyargument with respect to the 24(2) matter” (transcripts at 328 and 329).Counsel for Mr. Rogers indicated that the Crown’s office had advised herthat they would not be making any argument, “which is the reason noadditional cases have been filed with the Court” (at 329). Nonetheless,she said she would briefly refer to the decisions that she had alreadyfiled, principally Grant . She reviewed the three-part test in Grant andreferred to the three breaches of the Charter that the trial judge hadfound in the course of his voir dire decision: an unreasonable search byentering into the “dwelling-area” of the house; the breach of the right tocounsel; and the length of the arbitrary detention. She also mentioned thefact that statements had been taken from Mr. Rogers that were not foundto be voluntary.

58 The trial judge then indicated as follows: THE COURT: Right. And just the — without having the grounds, Ifound that there wasn’t the grounds for the demand.

Generally those cases are throwing the Certificates out.

MS. DUNFORD: Yes.

THE COURT: And so that almost ends it there.


MS. DUNFORD: That would be —

THE COURT: Because once the Certificate is out, this case, there’snothing else there.

MS. DUNFORD: Yes. And I would say that —

THE COURT: There’s no impairment. If you don’t have the groundsto do the test, you won’t have the grounds for impairment.

59 Notwithstanding the fact that the Crown had taken no position on thes. 24(2) Charter issue before the Provincial Court judge, in its notice ofappeal to the summary conviction appeal court, the Crown submitted that“The learned Trial Judge erred in failing to conduct an adequate Section24(2) analysis pursuant to the direction of the Supreme Court of Canadain the case of R. v. Grant ”. The Crown argued that the trial judge’s lackof reasoning constituted an impediment to meaningful appellate review.

60 In my view, the approach by the Crown at trial invites the responsethat the trial judge gave in this case. While an appellate court is obvi-ously not privy to the dynamic in the trial courtroom, the provincial courtjudge appears to have concluded that the Crown assumed that the exclu-sion of the evidence under section 24(2) was a foregone conclusion.Since Crown counsel had advised defence counsel that the Crown wouldbe making no submissions, counsel for Mr. Rogers was of the view thatno further materials needed to be filed. As a consequence, the provincialcourt judge was left with limited assistance.

61 In my respectful view, the Crown is not entitled to take no position onwhether impugned evidence should be excluded under s. 24(2) and thenappeal the result if it is not satisfied with it. An analogy can be drawnwith respect to raising a new argument on appeal. As a general rule,neither the Crown nor the defence are permitted to raise for the first timean argument that had not been made in the court of first instance. TheCrown’s decision not to make any argument with respect to s. 24(2)leaves not only the trial judge in a lurch but any appeal court judge whomust consider the matter on appeal. In the absence of full argument in thecourt at first instance, and without the benefit of a reasoned conclusion,an appeal court judge must forge its own s. 24(2) analysis, if it decides tosustain the trial judge’s finding of a Charter breach.

62 In a case such as this one, the trial judge is entitled to assume that theCrown has concluded that the finding of the breach was sufficiently seri-ous that the evidence should be excluded. This may not be the correctassumption, but it is one that is available to the trial judge.


63 In this case, it is not clear what the trial judge assumed. He seems tohave agreed with defence counsel that the evidence should be excludedunder s. 24(2), but then he made an obvious error about the certificate, asevidence as to the readings had been proven by calling the technician —not by means of the certificate. Neither defence counsel nor the Crowndisabused him of that notion. All of this compounds the difficulty onappeal.

64 In such circumstances, I conclude that the trial judge made no error inexcluding the evidence obtained during the voir dire or at the least, thisCourt should not embark on a re-assessment of the evidence based on thelimited argument available to us.

65 Once the trial judge’s conclusion with respect to s. 24(2) is sustained,there is no evidence to support the officer’s approved screening devicedemand or his demand for a breath sample. All of the evidence that thepolice gathered to support the demands flowed from the officer’s deci-sion to knock on the door. The trial judge considered that it was neces-sary to consider this issue because he had not yet decided whether theevidence obtained during the voir dire would be excluded on the basis ofan unreasonable search. Since I have concluded that the trial judge’s de-cision excluding the voir dire evidence should be sustained, this Courtneed not consider whether the evidence obtained as a result of the inter-actions with Mr. Rogers was sufficient to support the demand for breathsamples.

C. Whether the summary appeal court judge erred by finding the trialjudge erred by acquitting Mr. Rogers of the impaired driving chargeas well as the .08 charge?

66 After the trial judge held that all of the evidence obtained through thevoir dire process would be excluded, defence counsel, Crown counseland the court considered what evidence was left. Crown counsel was notthe original trial and voir dire counsel, but he appeared to acquiesce thatif all of the evidence obtained as a result of the s. 8 unreasonable searchwere excluded, there was no further evidence.

67 The Court then concluded by saying, “So that ends it then. And sothat would be the not guilty on both charges then” (transcripts at 332).

68 Three persons testified as to the state of impairment of Mr. Rogers:Mr. Robblee, Cst. Dechief and Sgt. Murray Cowan. Cst. Dechief’s testi-mony is described above. Sgt. Cowan, who administered the breath testat the police station, testified that Mr. Rogers was slurring his words,


staggering and swaying on his feet and emitting a strong odour of alco-hol. When asked for his opinion on Mr. Rogers’s level of impairment,Sgt. Cowan had no doubt that Mr. Rogers was impaired by alcohol. Sgt.Cowan provided viva voce testimony going to the question of what read-ings Mr. Rogers gave, which means there was no certificate. He did so,however, as part of the voir dire.

69 Mr. Robblee telephoned the police to report the incident involvingMr. Rogers because he believed the driver, who had just backed into hiswife’s car, was impaired. His testimony in chief is as follows:

I was meeting my wife [at] Sarcan and as I was waiting there, I no-ticed she pulled up and the person beside me backed to straight intoher, and I walked over. Got out of my truck, walked over to the vehi-cle and the driver of the red vehicle was just sitting in his vehicle. Hewouldn’t get out. I walked to the back of my vehicle to see what thedamage, and I told my wife to drive ahead because he never evenpulled ahead to see. So my wife pulled ahead. I looked and there wasjust a little scuff on the bumper. I went back to the passenger side ofthe red vehicle and I just my — I looked in the side window andraised my hands and then finally the driver got out, walked aroundthe rear of the vehicle, and then I walked towards him little bit andwe just — he walked really slow. He seemed to stagger a bit. And Isaid, “there’s no damage.” And then sorry, this has been over a yearago. And then he — I don’t know if he even looked at the vehicle ornot, but he said he just — he said, “no damage?” And I said, “nodamage.” And geez, sorry. Yeah. And then I guess either I shook hishand or he wanted me to shake his hand, we’re good. And then hehopped back into his vehicle and drove away. And he wouldn’t — hewas — asking “no damages?” He would not make eye contact withme. He had his head to the right like as if he didn’t want me to smellhis breath, and he just seemed to want to get out of there. He didn’treally look at the damages much or anything.

(at 4-5)

When asked why he had called the police, Mr. Robblee said, “Becausethe individual seemed to be impaired to me, and I asked him if he washalf-cut, and he just said, ‘no damages’” (at 11).

70 Mr. Robblee testified that he had observed Mr. Rogers for “less thana minute”. He also testified that he watched the vehicle drive away and,when asked whether he made any observations about the driving, orwhether anything stood out, he answered in the negative.


71 In cross-examination, he admitted that he did not know whether Mr.Rogers had a physical impairment and he agreed with defence counselthat it’s possible that if you have a physical impairment with your walkthat you walk slowly.

72 Constable Dechief, Sgt. Cowan and Mr. Rogers testified during thevoir dire. Mr. Robblee testified outside of the voir dire.

73 The trial court judge, however, excluded all of the evidence, includ-ing the evidence of Mr. Robblee — without referring to it or making anyfindings in relation to it. On appeal to the summary conviction appealcourt, the Crown took the position that this was an error and, at the veryleast, a new trial should be ordered with respect to the impaired drivingcharge. The appeal court judge agreed. He ordered a new trial.

74 The same difficulty arises with respect to this issue as arose with thes. 24(2) analysis. Viewing this matter from the perspective of the trialjudge, as we must, it appears that he concluded that the exclusion of theevidence flowing from the voir dire ended the trial. Since Mr. Robblee’stestimony was given during the trial proper, the trial judge’s decision toexclude the evidence seems to be an error on reading the transcript alone;but neither counsel disabused the trial judge of the notion that there wasevidence of impairment outside of the voir dire. In an adversarial systemof criminal trials, trial judges must be able to rely on counsel to raise anissue of concern — and, quite frankly, it may not have been a concern tothe Crown at the time.

75 The dynamic of the trial may have caused everyone to believe that itwas not possible to pursue the impaired driving charge on the basis ofMr. Robblee’s evidence alone. In light of the limited nature of Mr. Rob-blee’s evidence, it may have been the Crown’s view that it was evidentthat the trial judge would have a reasonable doubt. Mr. Robblee is not atrained observer. His interactions with Mr. Rogers were brief. Mr. Rob-blee formed his opinion that Mr. Rogers was impaired in part because thelatter did not immediately exit his car and he moved clumsily, but ac-cording to the evidence, Mr. Rogers, who was 54 years old at the time ofthe incident, has suffered from arthritis since he was 16 and walks withtwo canes — matters which would have been evident to the trial judge,and could give rise to a reasonable doubt as to whether Mr. Rogers wasimpaired at the time of driving. At this stage, we simply do not knowwhy the Crown did not advise the trial judge about Mr. Robblee’s evi-dence or make any objection when it became obvious that he was going


to acquit on the impaired driving charge without making findings of factin relation to it.

76 In these circumstances, I would allow the appeal in relation to thisground as well.

VII. Conclusion77 Leave to appeal is granted. The appeal is allowed and the decision of

the provincial Court is restored. It is proper to enter an acquittal for Mr.Rogers in relation to both counts.

Whitmore J.A.:

I concur.

Jackson J.A. for Ryan-Froslie J.A.:

I concur.

Appeal allowed.


[Indexed as: R. v. Morrison]

THOMAS JOSEPH MORRISON (Applicant) and HERMAJESTY THE QUEEN (Respondent)

Saskatchewan Court of Queen’s Bench

Docket: Battleford QBG 19/14

2016 SKQB 259

M.L. Dovell J.


Charter of Rights and Freedoms –––– Life, liberty and security of person [s.7] — Principles of fundamental justice — Procedural fairness –––– Accusedconvicted of offences and dangerous offender application launched — Fitnessassessment finding accused unfit to stand trial — Code only permitting fitnesshearing to be held pre-verdict — Code provision violating section 7.

Charter of Rights and Freedoms –––– Charter remedies [s. 24] — Readingin –––– Accused convicted of offences and dangerous offender applicationlaunched — Fitness assessment finding accused unfit to stand trial — Code onlypermitting fitness hearing to be held pre-verdict — Appropriate remedy readingin language allowing hearing pre-sentence.

The applicant was convicted of break and enter and committing a sexual assaultcausing bodily harm. The Crown brought a dangerous offender application, andduring the sentencing stage of the trial a fitness assessment was ordered by thecourt at the request of the defence. That fitness assessment concluded that theapplicant was unfit to understand the nature of the dangerous offender sentenc-ing proceeding. The defence sought a fitness hearing, but the Crown argued thatthe Code requires a fitness hearing to take place prior to verdict. The accusedargued that the failure of the Code to allow a fitness hearing post-verdict butprior to sentence violated s. 7 of the Charter and that the proper remedy was toread words allowing such a hearing into the Code.

Held: The Code violated s. 7 of the Charter and a fitness hearing was ordered.

The Crown had taken no position on the availability of a fitness hearing post-verdict and had not opposed the application for a fitness assessment when it wasmade post-verdict: it was not logical that the Crown could agree that a fitnessassessment could be made but oppose holding the hearing at which that assess-ment would be used. Beyond that, the applicant’s s. 7 argument should succeed.The applicant’s liberty interest was at stake. He was potentially subject to indefi-nite imprisonment from the sentencing hearing, and his meaningful participationin that hearing was necessary. To prevent the fitness hearing from taking place

R. v. Morrison 363

because it was post-verdict would therefore violate the principles of fundamentaljustice, and the proper remedy was to read in words allowing the hearing tooccur before sentence was imposed.

Cases considered by M.L. Dovell J.:

R. v. Anderson (2014), 2014 SCC 41, 2014 CSC 41, 2014 CarswellNfld 166,2014 CarswellNfld 167, [2014] S.C.J. No. 41, 60 M.V.R. (6th) 1, 11 C.R.(7th) 1, 458 N.R. 1, 373 D.L.R. (4th) 577, 1088 A.P.R. 289, 350 Nfld. &P.E.I.R. 289, 311 C.C.C. (3d) 1, [2014] 3 C.N.L.R. 267, 310 C.R.R. (2d)197, [2014] 2 S.C.R. 167 (S.C.C.) — followed

R. v. Balliram (2003), 2003 CarswellOnt 774, [2003] O.J. No. 784, (sub nom.Canada (Attorney General) v. Balliram) 173 C.C.C. (3d) 547, 103 C.R.R.(2d) 359 (Ont. S.C.J.) — considered

R. v. Jones (1994), 30 C.R. (4th) 1, 166 N.R. 321, 43 B.C.A.C. 241, 69 W.A.C.241, 89 C.C.C. (3d) 353, [1994] 2 S.C.R. 229, 114 D.L.R. (4th) 645, 21C.R.R. (2d) 286, 1994 CarswellBC 580, 1994 CarswellBC 1240, [1994]S.C.J. No. 42, EYB 1994-67084 (S.C.C.) — considered

R. v. Lyons (1987), 80 N.R. 161, [1987] 2 S.C.R. 309, 44 D.L.R. (4th) 193, 82N.S.R. (2d) 271, 37 C.C.C. (3d) 1, 61 C.R. (3d) 1, 32 C.R.R. 41, 207 A.P.R.271, 1987 CarswellNS 41, 1987 CarswellNS 342, [1987] S.C.J. No. 62,EYB 1987-67386 (S.C.C.) — considered

R. v. Whittle (1994), 32 C.R. (4th) 1, 170 N.R. 16, 73 O.A.C. 201, 92 C.C.C.(3d) 11, [1994] 2 S.C.R. 914, 23 C.R.R. (2d) 6, 116 D.L.R. (4th) 416, 1994CarswellOnt 91, 1994 CarswellOnt 1163, [1994] S.C.J. No. 69, EYB 1994-67663 (S.C.C.) — considered



Generally — referred tos. 1 — considereds. 7 — considered

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982,c. 11, reprinted R.S.C. 1985, App. II, No. 44

s. 52(1) — consideredCriminal Code, R.S.C. 1985, c. C-46

Generally — referred toPt. XX.1 [en. 1991, c. 43, s. 4] — referred toPt. XXIV — referred tos. 2 “unfit to stand trial” — considereds. 348(1)(b) — referred tos. 672.11 [en. 1991, c. 43, s. 4] — considereds. 672.12 [en. 1991, c. 43, s. 4] — considered


s. 672.23(1) [en. 1991, c. 43, s. 4] — considered

APPLICATION by accused challenging constitutionality of provisions of Crimi-nal Code limiting fitness assessment to pre-sentencing phase of trial.

Bruce K. Campbell, for Applicant, Thomas Joseph MorrisonMichelle E. Baldwin, for Attorney General, for SaskatchewanJeffrey G. Crawford, for Attorney General, for Saskatchewan, Constitutional

Law Branch

M.L. Dovell J.:

A. Introduction1 The applicant, Thomas Joseph Morrison, by Notice of Constitutional

Question dated June 13, 2016, has raised the issue of the constitutionalityof s. 2 and s. 672.23(1) of the Criminal Code, RSC 1985, c C-46, on thebasis that those sections of the Criminal Code in Mr. Morrison’s presentcircumstances violate his s. 7 rights of the Canadian Charter of Rightsand Freedoms [Charter].

2 After being convicted by a jury of a break and enter and committing asexual assault causing bodily harm, the Crown proceeded with a danger-ous offender application. During the sentencing stage of the trial, a fit-ness assessment was ordered by the Court at the request of the defence,the Crown taking no position. That fitness assessment concluded thatThomas Joseph Morrison is presently suffering from a mental disorderwhich has now made him unfit to understand the nature and object of thedangerous offender sentencing proceeding and unfit to communicatewith and instruct his counsel.

3 Notwithstanding the Crown not taking a position when a fitness as-sessment was requested by the defence and granted by the Court, theCrown is now taking the position that the Court does not have jurisdic-tion to order a fitness hearing pursuant to s. 672.23(1) of the CriminalCode. As a result of that position, the defence’s position is that Mr. Mor-rison’s s. 7 rights have been violated, which cannot be saved by s. 1 ofthe Charter, and is requesting a remedy pursuant to s. 52(1) of the Con-stitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),1982, c 11.

4 In particular, pursuant to s. 52(1) of the Constitution Act, 1982,Thomas Joseph Morrison is requesting that the appropriate remedy is notnecessarily that s. 2 and 672.23(1) of the Criminal Code be struck down

R. v. Morrison M.L. Dovell J. 365

but that words be read into the sections to provide for a fitness hearingpost-verdict. The applicant suggests it is appropriate to read in the words“and to be sentenced” to the title and the words “or sentence imposed”after the words “verdict is rendered” in the definition of “unfit to standtrial” under s. 2 of the Criminal Code and the words “or sentence im-posed” after the words “verdict is rendered” under s. 672.23(1) of theCriminal Code.

5 The Attorney General’s argument was made by Crown counsel forthe Constitutional Branch as opposed to the Crown counsel actually in-volved in the prosecution. The Attorney General is opposed to this appli-cation. However, the Attorney General is in agreement that if the Courtwere to find that Mr. Morrison’s s. 7 rights have been violated that can-not be saved by s. 1 of the Charter that the remedy being suggested byMr. Morrison pursuant to s. 52(1) of Constitution Act, 1982 isappropriate.

B. Background6 Thomas Joseph Morrison was arrested and charged on July 7, 2013,

on Information No. 24532800 that he: on or about the 28th of June, 2013, did break and enter a certainplace, to wit: The Church Rectory, situated at 1 Heidt Street, Dillon,SK and did commit therein the indictable offence of Sexual Assaultcausing bodily harm, contrary to section 348(1)(b) of the CriminalCode.

7 After being committed to stand trial in Court of Queen’s Bench, Mr.Morrison was arraigned on June 19, 2014. On the second day of pre-trialapplications, the Court was advised that Mr. Morrison was ill and couldnot proceed with the pre-trial applications at that time. On June 24, 2014,defence counsel made application for a fitness assessment. The Court,having reasonable grounds to believe that an assessment was necessaryto determine whether Mr. Morrison was fit to stand trial, made an Orderfor an Assessment pursuant to s. 672.11 of the Criminal Code with theCrown’s consent.

8 The Court received two fitness assessments in August 2014. The psy-chiatric assessment, in part, at pages 13 and 14, indicated:

Assessment of Fitness to Stand Trial indicated that Thomas is nowwell aware of the charges against him. He may have difficulties inclearly describing the account of events that led to these charges. Healso has a reasonable understanding of the legal process, Court pro-


cedures, and the roles of the key participants. He is aware of theprobable outcomes in Court and their consequences. He is also capa-ble of reasonably working with his defence counsel. Patients do notnecessarily have to be able to act in their best interest as explained bythe test of limited cognitive capacity, which has been applied in thiscase. In my opinion he is therefore Fit to Stand Trial.

9 The psychological assessment received at that time, at page 14, indi-cated:

Mr. Morrison is a 44 year-old man with diagnoses of SchizoaffectiveDisorder, Polysubstance Dependence, and Antisocial PersonalityDisorder. In my opinion, the results of the psychological assessmentare unlikely to raise concerns about his fitness to stand trial or crimi-nal responsibility.

10 As a result of the opinions of the psychiatrist and psychologist as out-lined within those two assessments, both defence and Crown counselagreed that it was not necessary for a fitness hearing at the time, and thepre-trial applications continued. Mr. Morrison’s fitness, however, was anongoing concern to everyone involved and was monitored on a daily ba-sis as the trial proceeded.

11 Mr. Morrison’s jury trial commenced on November 3, 2014, and thejury returned a verdict of guilty to the one count Indictment on Novem-ber 14, 2014. The Crown advised that it was its intention to make anapplication for a Part XXIV assessment and that another Crown prosecu-tor would be involved in the sentencing phase of the trial. New defencecounsel also became involved at this juncture.

12 The new Crown made an application for a Part XXIV assessment tobe conduct by Dr. Shabehram Lohrasbe, and with the consent of the de-fence counsel, an assessment was ordered on January 24, 2015.

13 The Part XXIV assessment of Dr. Shabehram Lohrasbe dated April 1,2015, was received by the Court on April 20, 2015, and tentative dateswere set aside for the dangerous offender sentencing hearing to proceedin November 2015.

14 The November 2015 sentencing hearing dates had to be changed toJanuary 18 to 29, 2016, to accommodate the assessor Dr. Lohrasbe’savailability. On January 14, 2016, the sentencing hearing dates wereonce again changed at the request of both Crown and defence counsel,the defence waiving delay. It was at that time that Mr. Morrison’s newcounsel first advised the Court that he had concerns regarding Mr. Morri-son’s mental condition and his ability to provide him with instructions.


The sentencing hearing is now scheduled to proceed on November 7 to18, 2016.

15 There were numerous court attendances in January and February2016. On January 14, 2016, defence counsel raised with the Court theissue of fitness and the probability of his making an application for afitness assessment. The issue that is the subject matter of this application,namely, the jurisdiction of this Court to order a fitness hearing after theverdict has been rendered, was raised by the Court itself on that date,including providing counsel with some of the applicable case law theymay wish to look at. The Court was left with the clear impression thatcounsel were having ongoing discussions on what would be the most ap-propriate course of action by everyone in light of the unfortunate circum-stances Mr. Morrison was apparently facing.

16 On March 4, 2016, an order of assessment by Dr. Mansfield Mela refitness to stand trial was made pursuant to s. 672.12 of the CriminalCode at the request of the defence, the Crown taking no position as it hadconsistently indicated from the time the issue of fitness had first comeup. On February 24, 2016, Madam Crown indicated to the Court, afterbeing asked, “[A]ny comments with regard to what’s being proposed”:

Not particularly, My Lady. I mean, the Crown’s — the Crown’s cer-tainly not — and we’re not particularly opposing the application atall or the assessor, so I don’t really have any comment with respect toit. [Transcript, pages T26 and T27]

17 And on March 4, 2016, before the order for a fitness assessment wasmade by the Court:

My Lady, what I see on the file effectively is that the Crown is notopposed, I’m not in a position to make any further comments in thatregard, that’s the only position I see on the file. So I would say theCrown is not opposed. [Transcript, page T39]

18 Dr. Mela’s April 28, 2016, assessment was received by the Court onMay 9, 2016. Dr. Mela stated at page 7 of that assessment:

The legal process of sentencing requires him to pay attention to themeaning of the events taking place in courts and the consequences ofthose events. His distraction will affect the communication with thelawyer and the ongoing impact and preoccupation with the psychoticsymptoms and their influence with [sic] interfere with his participa-tion in the process. It is my opinion that he is not able to conduct thebusiness of the sentencing. It is my opinion of reasonable medicalcertainty that during this sentencing Mr. Morrison is unfit.


19 As a result of the Crown’s position at this time that, notwithstandingtaking no position when the assessment re fitness was ordered on March4, 2016, the Court has no jurisdiction to make an order for a fitness hear-ing pursuant to s. 672.23(1) of the Criminal Code as the jury rendered itsverdict of guilty on November 13, 2014, the defence has brought thisapplication.

C. Positions of the Parties

1. The applicant20 Counsel for the applicant argued that we should not even be here. A

fitness assessment was ordered by the Court, the Crown taking no posi-tion, and unfortunately, the results of the assessment indicate that at thistime Mr. Morrison is not fit to stand trial. As that is the only evidencebefore the Court at this time, the Court should order that a fitness hearingtake place at the first available dates that Dr. Mela is available. The di-rection this matter takes from there will depend upon the results of thatfitness hearing.

21 In view of the Crown’s present position that this Court has no juris-diction to make an order for a fitness hearing, the applicant’s position isthat ss. 2 and 672.23(1) of the Criminal Code in the circumstances Mr.Morrison presently finds himself in violate his s. 7 Charter rights; in par-ticular, that he has a mental disorder which has now made him unfit tounderstand the nature and object of the sentencing proceeding and unfitto communicate with and instruct counsel and he is entitled to a fitnesshearing.

22 In accordance with the reasoning as found in R. v. Balliram (2003),173 C.C.C. (3d) 547 (Ont. S.C.J.) [Balliram], the applicant is requestingthat pursuant to s. 52.1 of the Constitution Act, 1982, s. 2 of the CriminalCode, and more specifically the definition of “unfit to stand trial”, and s.672.23(1) of the Criminal Code be found unconstitutional and should bedeclared to be of no force and effect. In the alternative, the applicant isrequesting the reading in of the words “to be sentenced” to the title andthe words “or sentence imposed” after the words “verdict is rendered” inthe definition of “unfit to stand trial” under s. 2 of the Criminal Code andthe words “or sentence imposed” after the words “verdict is rendered”under s. 672.23(1) of the Criminal Code.


2. Attorney General for Saskatchewan23 The Attorney General for Saskatchewan defends the constitutionality

of ss. 2 and 672.23(1) of the Criminal Code. It is its position that thosesections, together with the whole of Part XX.1 of the Criminal Code,provide a regime by which the fitness of an accused can only be triedbefore a verdict is rendered. The fact that no such process exists after aconviction should not result in a finding that those sections are unconsti-tutional. This is because s. 7 of the Charter does not require the sameprotections after a verdict as it does prior to a finding of guilt. Whileacknowledging Mr. Morrison’s “liberty” interests are engaged with re-spect to its dangerous offender application, it is the Crown’s position thatthe dangerous offender sentencing hearing should proceed notwithstand-ing the current evidence that Mr. Morrison is not fit to stand trial. Whilethe situation is not “perfect”, it is good enough for the Crown. Accord-ingly, the Attorney General of Saskatchewan is asking that the constitu-tional challenge of the applicant be dismissed.

24 In the alternative, if the Court finds that ss. 2 and 672.23(1) of theCriminal Code violate s. 7 of the Charter and cannot be saved by s. 1,the Attorney General’s position is that the appropriate remedy is to readin the words “and to be sentenced” to the title and the words “or sentenceimposed” after the words “verdict is rendered” in the definition of “unfitto stand trial” under s. 2 of the Criminal Code and the words “or sen-tence imposed” after the words “verdict is rendered” under s. 672.23(1)of the Criminal Code.

D. Relevant Statutory and Constitutional Provisions25 The relevant provisions of the Charter read as follows:

Rights and freedoms in Canada

1. The Canadian Charter of Rights and Freedoms guarantees therights and freedoms set out in it subject only to such reasonable lim-its prescribed by law as can be demonstrably justified in a free anddemocratic society.

. . . . .

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the personand the right not to be deprived thereof except in accordance with theprinciples of fundamental justice.


26 The relevant provision of the Constitution Act, 1982 reads as follows:52(1) The Constitution of Canada is the supreme law of Canada, andany law that is inconsistent with the provisions of the Constitution is,to the extent of the inconsistency, of no force or effect.

27 The relevant provisions of the Criminal Code read as follows: Definitions

2 In this Act,

. . . . .

unfit to stand trial means unable on account of mentaldisorder to conduct a defence at any stage of the proceed-ings before a verdict is rendered or to instruct counsel todo so, and, in particular, unable on account of mental dis-order to

(a) understand the nature and object of theproceedings,

(b) understand the possible consequences of the pro-ceedings, or

(c) communicate with counsel;

. . . . .

672.23(1) Where the court has reasonable grounds, at any stage ofthe proceedings before a verdict is rendered, to believe that the ac-cused is unfit to stand trial, the court may direct, of its own motion oron application of the accused or the prosecutor, that the issue of fit-ness of the accused be tried.

E. Agreed Facts of This Application28 Defence and Crown counsel agreed upon the following facts:

1. An assessment order was made for Mr. Morrison before a guiltyverdict was rendered for the offence contrary to s. 348(1)(b) of theCriminal Code. No application for a fitness hearing was made atthat time.

2. Subsequent to the guilty verdict, another assessment order wasmade at the request of Mr. Morrison’s counsel. The Crown did notobject. The author of the post-verdict assessment indicated that hebelieves that Mr. Morrison is unfit. The Crown has since taken theposition that, despite not opposing the application for a fitness as-sessment, there is no authority in the Criminal Code for the Courtto decide whether an accused is unfit after a verdict is renderedand the Crown cannot concede this jurisdiction.


3. Defence does not agree with the Crown’s position regarding theCourt’s jurisdiction in this regard and will argue that the order hasbeen made and the Crown must appeal the order.

4. It is this underlying issue that has prompted the defence to bringan application for an order that ss. 2 and 672.232(1) of the Crimi-nal Code are unconstitutional.

F. Analysis29 Notwithstanding within counsels’ “agreed facts”, it is stated that the

defence “will argue that the order has been made and the Crown mustappeal the order”, defence counsel agreed when questioned by the Courtthat there were two difficulties with such a position. First, the Crown wasnot opposed to a fitness assessment at the time the order was made and,accordingly, how would it now be in a position to appeal that order and,second, no appeal can be made by anyone until the “trial has concluded”,which is not the case at this time.

30 The Crown’s position that it cannot concede the Court’s jurisdictionto make an order for a fitness hearing at this stage of the proceeding isvery troubling to the Court for several reasons. The Court, on its own,ordered a transcript of most of the court appearances since the issue offitness was first brought forward by the new defence counsel during thesentencing stage of the proceeding as it wanted to make reference to theactual transcripts as opposed to the court endorsements on the file indealing with its concern of the Crown’s position or non-position leadingup to this defence application.

31 The Court certainly has some appreciation for defence counsel’s ar-gument that “we shouldn’t even be here” as up until now the Crown wasnot opposed to the direction that was being amicably taken by counsel inattempting to streamline the sentencing process with a view to being fairto everyone. That direction abruptly changed for reasons that the Courtcan only speculate upon.

32 Although the Court could conclude that the Crown has already ac-knowledged this Court has jurisdiction to look into Mr. Morrison’s fit-ness at this stage of the proceeding and that is the end of the matter,notwithstanding the wording of ss. 2 and 672.23(1) of the CriminalCode, as the Crown did not object to an order for the fitness assessment,the Court, although tempting, is not prepared to dispose of this applica-tion on that basis alone. By not being opposed to the fitness assessmentbeing ordered and, thus, implicitly agreeing that the Court had jurisdic-


tion to make that order, how can the Crown now argue the Court doesnot have jurisdiction to order a fitness hearing? It is not logical that theCrown can take the position that the Court has jurisdiction to make afitness assessment and then take the position that the Court does not havejurisdiction to make an order for a sentencing hearing. Either the Courthas jurisdiction or it does not — it cannot go both ways. Notwithstandingthis observation, the Court will not limit its analysis to that conclusionalone.

33 The merits of the defence’s Charter application concerning Mr. Mor-rison’s unfortunate situation will be dealt with by the Court. It is impor-tant, however, that the Court expeditiously makes its decision as therecan be no further delays in this matter as Mr. Morrison has spent overthree years on remand since being arrested, 21 months of which are sincebeing convicted in November 2014. It is imperative that there be no fur-ther delays in dealing with his matter one way or the other. Either thefitness hearing or the dangerous offender sentencing hearing must pro-ceed on November 7, 2016.

34 Mr. Morrison is presently facing the possibility of an indeterminatesentence as a result of the Crown’s dangerous offender application, a fatearguably worse than a life sentence with parole eligibility of 25 years, yetthe Crown believes that as “imperfect” as that situation is in this case, itis okay for the dangerous offender sentencing hearing to proceed, we allknowing that Mr. Morrison is not fit at this time to stand trial. Whenquestioned by the Court as to whether or not Mr. Morrison knew why hewas even in court at the time of argument of this application, defencecounsel replied that Mr. Morrison did not know why he was in court thatday and all Mr. Morrison said to him was that he wanted to go to theRegional Psychiatric Centre in Saskatoon. Although the question wasasked of defence counsel, there was no doubt in my mind from just look-ing at Mr. Morrison that he was “not with us” as he stared mindlesslyinto the courtroom while counsel argued their respective positions.

35 The basis of the defence’s Charter application is that the provisionsof ss. 2 and 672.23(1) of the Criminal Code violate Mr. Morrison’s s. 7Charter rights. Section 7 of the Charter guarantees that “Everyone hasthe right to life, liberty and security of the person and the right not to bedeprived thereof except in accordance with the principles of fundamentaljustice.”

36 As was set out in R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167(S.C.C.), a principle of fundamental justice must be a legal principle, en-


joy consensus that the rule or principle is fundamental to the way inwhich the legal system ought fairly to operate and be identified with suf-ficient precision to yield a manageable standard against which to mea-sure deprivations of life, liberty or security of the person.

37 There is no question, and the Crown has acknowledged, that Mr.Morrison’s “liberty interest” is engaged with the Crown’s dangerous of-fender application and that the “principles of fundamental justice” arecontext-specific. Notwithstanding Mr. Morrison’s “liberty interest” beingengaged, the Crown argued that his s. 7 Charter interests had not beeninfringed. In particular, the Crown was relying upon two Supreme Courtof Canada cases, namely, R. v. Lyons, [1987] 2 S.C.R. 309 (S.C.C.), andR. v. Jones, [1994] 2 S.C.R. 229 (S.C.C.), in which the Supreme Courtrecognized a more limited scope of s. 7 Charter protections following theconviction of an offender. Whether the s. 7 protection is a “more limitedscope” as described by the Supreme Court of Canada, or what I describeas a “different scope”, it is still a protection that is guaranteed by s. 7 ofthe Charter throughout the entire trial process from beginning to end.There is no suggestion that post-verdict s. 7 protection should be identi-cal to pre-trial s. 7 protection. It cannot be, as the processes are com-pletely different, but one is not necessarily more important than theother. In situations such as Mr. Morrison is presently in, the post-verdictsituation can be just as critical as the situation before the verdict wasrendered. The dangerous offender sentencing process certainly is as com-plicated as the jury trial for entirely different reasons — but not more orless important reasons. While Crown counsel is of the opinion that Jus-tice McWatt in Balliram “reached his conclusion rather swiftly and didso largely on the basis that sentencing is part of the trial process”, thisCourt totally disagrees with that suggestion. Everyone’s s. 7 rights are tobe protected throughout the entire trial both before and after conviction.

38 At this time, the only evidence before us is that Mr. Morrison cannotinstruct counsel and is not fit to be tried. Although both the wording of s.2 and s. 672.23(1) of the Criminal Code reflect that the issue of fitnesscan be tried “at any stage of the proceedings before a verdict is ren-dered”, we are now post-verdict, the jury having rendered its verdict inNovember 2014. Sometime after November 2014, Mr. Morrison has be-come unfit. So what is the right and fair thing to be done by the Court atthis time knowing Mr. Morrison does not understand what is going onaround him — not just being as described within R. v. Whittle, [1994] 2S.C.R. 914 (S.C.C.) at 933-34, as possessing “limited cognitive capac-


ity”. There is a difference — a big difference. As was stated in Whittle, atpage 934:

... Accordingly, provided the accused possesses this limited capacity,it is not a prerequisite that he or she be capable of exercising analyti-cal reasoning in making a choice to accept the advice of counsel or incoming to a decision that best serves her interests.

39 All Mr. Morrison is aware of at this time is he wants to be at theRegional Psychiatric Centre. It appears he has no idea what is going onaround him let alone the potential jeopardy he is facing. One of the basiccriminal principles that we faithfully abide by is that an accused must bepresent at all times during his or her criminal proceeding with the excep-tion of several specific situations. While Mr. Morrison at this time isphysically present within the courtroom during his dangerous offendersentencing hearing, he is not mentally present as the only evidencebefore the Court at this time is that he “is not able to conduct the busi-ness of the sentencing” as he is “unfit”. While physically present, he re-ally is not present at all, a situation this Court is not prepared to accept orcondone and carry on with the dangerous offender sentencing hearingwhile Mr. Morrison remains unfit to stand trial.

40 Crown counsel argues that there really is no need for Mr. Morrison toinstruct his counsel during the dangerous offender sentencing hearing asthe stage has been set and all the Court has to do is sentence him. TheCourt has before it the evidence of the trial upon which the jury returneda verdict of guilty. In addition, Mr. Morrison’s criminal record speaks foritself. What else could the Court possibly want from Mr. Morrison?

41 As I expressed to Crown counsel during argument of this application,the answer to that question is “many things”. This is not a straightfor-ward cookie-cutter sentencing; this is a dangerous offender sentencinghearing. It is absolutely mandatory that Mr. Morrison be capable of in-structing his new defence counsel as to the many issues that will be con-sidered during the dangerous offender sentencing hearing such as whatprogramming he is prepared to take, why previous programming was notsuccessful, what the future holds for him, what and who are his supports,how he can possibly be managed within the community, what documen-tation within the binders of materials the Crown will no doubt file withthe Court are accurate and what documentation is not. These are only ahandful of issues that will have to be dealt with by the Court during thesentencing hearing. There is only one source for all of that informationand that source is Mr. Morrison. He needs to be an active participant


during his dangerous offender sentencing hearing. Unfortunately, at thistime Dr. Mela is of the opinion that Mr. Morrison cannot participate inhis sentencing hearing as he is not “fit”. How can there possibly be a fairsentencing hearing without Mr. Morrison being able to instruct his coun-sel? I certainly cannot think of any way Mr. Morrison can receive a fairsentencing hearing if he indeed is unfit. Taking the Crown’s argument toits logical conclusion, why are we even having a sentencing hearing if allthe necessary information is before the Court? I think the answer to thatquestion is obvious.

42 The comments of Justice McWatt with regard to Mr. Balliram areequally and identically applicable to Mr. Morrison. Those comments in-clude, at paragraph 33:

[33] I expect that the sentencing of Mr. Balliram will be acutely ad-versarial. Based on the evidence before me, it is not possible, at thispoint, for Mr. Balliram to meet whatever case the Crown advances tohave him declared dangerous. Defence counsel submits that the sen-tencing portion of this trial may well be more complex than theguilt/innocence phase of the case. He expects that Mr. Balliram’sparticipation involving issues of parole ineligibility or preventativedetention will be necessary because “witnesses will testify and a ro-bust documentary record will be filed.” Issues such as the competingcredibility of experts and the validity of actuarial risk assessmentscores will be litigated. Mr. Balliram faces, potentially, an indetermi-nate number of years in the penitentiary.

43 And at paragraph 34: [34] “[T]he principles of fundamental justice are to be found in thebasic tenets of our legal system” B.C. Motor Vehicle Act (Re), [1985]2 S.C.R. 486 at 503, (sub nom. Reference re: Section 94(2) of theMotor Vehicle Act) 23 C.C.C. (3d) 298. It follows then that Mr. Bal-liram’s present position as “unfit” and unable to communicate withcounsel deprives him of fundamental justice. If he had been found“unfit” before the verdict, he could have been assessed and treated.That is not an option for him now — and there is no logical reasonwhy. There appears to be no valid purpose for this legislative gap.Mr. Balliram’s liberty rights pursuant to s. 7 of the Charter havebeen infringed.

44 Likewise, the Court has determined that the language of both ss. 2and 672.23(1) of the Criminal Code constitutes an infringement of Mr.Morrison’s s. 7 Charter rights that are not justified under s. 1 of theCharter.


45 As the Court has concluded that ss. 2 and 672.23(1) of the CriminalCode are inconsistent with the Charter and cannot be justified under s. 1of the Charter, the appropriate remedy must be determined pursuant to s.52(1) of the Constitution Act, 1982. As the Court advised counsel at thetime this application was argued, it is not the intention of the Court tostrike down ss. 2 and 672.23(1) of the Criminal Code in their entirety asthat would result in a situation that would “disrupt valid applications ofwhat is substantially constitutional, but peripherally problematic law inthis particular case” as was decided in Balliram. I have concluded, as didMcWatt J. in Balliram, that the appropriate remedy is to read in provi-sions for fitness to be tried post-verdict in the circumstances of this case.

G. Conclusion46 For all the reasons as outlined in this decision, the Court has found

that in Mr. Morrison’s present circumstances, both ss. 2 and 672.23(1) ofthe Criminal Code are unconstitutional and cannot be saved by s. 1 of theCharter and that the appropriate remedy in this case pursuant to s. 52(1)of the Constitution Act, 1982 is to “read in” provisions for a fitness hear-ing post-verdict. Those “read in” provisions providing for a fitness hear-ing post-verdict would be in keeping with the legislative objective; thatis, protecting the public from potentially dangerous persons while pro-viding for fair criminal proceedings.

47 Accordingly, the appropriate remedy in the circumstances of this caseis to read in the words “and to be sentenced” to the title and the words“or sentence imposed” after the words “verdict is rendered” in the defini-tion of “unfit to stand trial” under s. 2 of the Criminal Code and thewords “or sentence imposed” after the words “verdict is rendered” unders. 672.23(1) of the Criminal Code.

48 This matter is scheduled to reconvene on August 15, 2016, at 10:00a.m. at Court of Queen’s Bench in Saskatoon. At that time, the Courtexpects the next step in this proceeding will be set.

Application granted.

R. v. Okimaw 377

[Indexed as: R. v. Okimaw]

Her Majesty the Queen (Respondent) and Frank James Okimaw(Appellant)

Alberta Court of Appeal

Docket: Edmonton Appeal 1503-0322-A

2016 ABCA 246

Jack Watson, Myra Bielby, Frederica Schutz JJ.A.

Heard: June 21, 2016


Sentencing –––– Principles — Restorative justice — Aboriginal offend-ers –––– Error to require Gladue report to indicate effect of systemic factors onmoral blameworthiness of offenders because moral blameworthiness to be deter-mined by sentencing judge.

Sentencing –––– Principles — Aggravating factors –––– Error to find as aggra-vating factor that accused armed with knife attacked stranger when sentencingjudge had already held that accused had knife for protection and complainantand his girlfriend had confronted accused.

The accused was an Aboriginal man who was also an alcoholic and drug addict.He had consumed both alcohol and drugs after becoming depressed about vari-ous family matters and he had not slept the night before or taken his prescribedmedications. He was asked to leave a liquor store and was standing outsidewhen a man, the complainant, and his girlfriend confronted him. The womanshoved the accused and an altercation resulted in which the accused punched thecomplainant in the jaw. The accused then pulled out a paring knife that he car-ried for protection and stabbed the complainant eight times.

At trial on charges of aggravated assault and possession of a weapon for a pur-pose dangerous to the public peace, the accused admitted the facts but claimedself-defence. The trial judge found the accused’s response to the altercation tobe grossly disproportionate and convicted him.

The accused was 27 years old with a criminal record that included weapons of-fences but no previous violence. Both a pre-sentence report and a Gladue reportwere prepared. The accused had suffered a difficult childhood, in which his par-ents had separated when he was very young and he was largely raised by hisgrandmother who had attended a residential school where she was mistreated. Attimes when he was with his father, there was a great deal of drinking and abusesince his father was an alcoholic who frequently beat his partners and children.The accused had lived on the streets from the age of fifteen and became in-


volved with alcohol, drugs, and a gang. He had been stabbed when coming tothe aid of a friend and suffered significant injuries as well as Post-TraumaticStress (PTSD) disorder. He also had Attention Deficit Hyperactivity Disorder(ADHD), Fetal Alcohol Spectrum Disorder (FASD), depression, pain, and re-spiratory problems. He had taken treatment for addictions but had relapsed.While in custody pending sentencing, he had participated in Aboriginal pro-gramming. The accused had been involved in two long-term relationships andhad three children. Although those children were with their mother, he regularlyvisited and was a good father. He had worked for about ten years before becom-ing unemployable due to his health and addiction problems.

At his sentencing hearing, the accused sought a sentence of four to six monthsimprisonment served by pre-sentence custody and probation. However, the sen-tencing judge sentenced him to 30 months less credit for 7.5 months pre-sen-tence custody and 18 months probation. The sentencing judge criticized theGladue report for not explaining the impact of background factors on the ac-cused’s moral blameworthiness. He found the systemic factors to be of limitedrelevance.

The accused appealed the sentence to the Court of Appeal, arguing that the sen-tencing judge had erred in failing to give weight to specific Gladue factors andin treating as an aggravating factor that the complainant was previously un-known to the accused.

Held: The appeal was allowed; sentence was reduced to 21 months less creditfor 7.5 months pre-sentence custody plus probation.

The assault by the accused was not entirely unprovoked and premeditated. Thecomplainant and his girlfriend had verbally and physically confronted the ac-cused. The accused’s previous experience of being confronted and stabbed byunknown people had led him to carry a knife for protection. The accused’smoral blameworthiness was affected by his upbringing and life experience. Thesentencing judge failed to properly consider the specific Gladue factors anderred in his apparent dismissal of any judicial obligation for analysis of this nec-essary context. He did so by criticizing the Gladue report for addressing poten-tial sentencing options but not explaining any impact on the accused’s moralblameworthiness. However, a Gladue report is to provide the necessary contextfor understanding the accused but it was the sentencing judge’s responsibility todetermine the accused’s moral blameworthiness. The accused’s moral blame-worthiness was diminished by the systemic factors. Failing to take these circum-stances into account violated the fundamental principle that the sentence must beproportionate to the gravity of the offence and the degree of responsibility of theoffender.

The sentencing judge also dismissed the Gladue factors by his reference to themisinterpreted statement in Gladue that the more serious and violent the offence,the less likely the term of imprisonment will vary as between an Aboriginal or

R. v. Okimaw 379

non-Aboriginal offender. Even in violent cases, Gladue factors must be consid-ered. The accused’s culpability also should have been considered in the contextof his specific physical and mental health. The sentencing judge erred in notdoing so.

The sentencing judge also erred in finding it aggravating that the complainantwas a stranger to the accused. The sentencing judge had accepted at trial that theaccused carried the knife for protection and therefore it was error to state that theaccused was prepared for battle. The complainant and his girlfriend had con-fronted the accused, who had previously suffered stabbing in similarcircumstances.

The cumulative effect of the errors was that the sentencing judge overempha-sized denunciation and deterrence and did not properly account for the accused’sreduced level of moral blameworthiness. The sentence was demonstrably unfit.

Because of the accused’s troubled upbringing and life experience, deterrenceand denunciation were tempered by Gladue factors. That the accused was carry-ing a knife for protection in what he perceived to be a rough neighbourhood wasreflective of his specific background as an Aboriginal male who had witnessed,suffered, and internalized violence, addiction, poverty, and racism. Although de-terrence and denunciation remained paramount, they must be balanced with re-straint and rehabilitation. A demonstrably fit sentence was 21 months imprison-ment, reduced by the 7.5 months credit for pre-sentence custody and anystatutory remission available for time served after the trial sentence was im-posed. The probation order was not disturbed.

Comment

As the Court said at the outset of this judgment, it should be read together withR. v. Laboucane, 2016 ABCA 176 (Alta. C.A.). Both cases provide helpful gui-dance for sentencing judges in Alberta (and elsewhere) in the interpretation andassessment of Gladue reports. Paragraph 62 of Okimaw provides a helpful sum-mary from Laboucane of the approach that should be taken. The Court inOkimaw has drawn an important distinction between a Gladue report providingthe necessary context for the sentencing process and the judge’s role in using thereport to determine the moral blameworthiness of the accused and then arrivingat a proportionate sentence in that context.

Tim Quigley

College of Law, University of Saskatchewan

Cases considered:

R. c. Lacasse (2015), 2015 SCC 64, 2015 CSC 64, 2015 CarswellQue 11715,2015 CarswellQue 11716, [2015] S.C.J. No. 64, [2015] A.C.S. No. 64, 86M.V.R. (6th) 1, 24 C.R. (7th) 225, (sub nom. R. v. Lacasse) 478 N.R. 319,


[2015] 3 S.C.R. 1089, 333 C.C.C. (3d) 450, 396 D.L.R. (4th) 214(S.C.C.) — considered

R. c. M. (L.) (2008), 2008 SCC 31, 2008 CarswellQue 4417, 2008 CarswellQue4418, [2008] S.C.J. No. 31, 56 C.R. (6th) 278, (sub nom. R. v. M. (L.)) 231C.C.C. (3d) 310, (sub nom. R. v. L.M.) 374 N.R. 351, (sub nom. R. v. M.(L.)) 293 D.L.R. (4th) 1, (sub nom. R. v. L.M.) [2008] 2 S.C.R. 163(S.C.C.) — referred to

R. v. Anderson (2014), 2014 SCC 41, 2014 CSC 41, 2014 CarswellNfld 166,2014 CarswellNfld 167, [2014] S.C.J. No. 41, 60 M.V.R. (6th) 1, 11 C.R.(7th) 1, 458 N.R. 1, 373 D.L.R. (4th) 577, 1088 A.P.R. 289, 350 Nfld. &P.E.I.R. 289, 311 C.C.C. (3d) 1, [2014] 3 C.N.L.R. 267, 310 C.R.R. (2d)197, [2014] 2 S.C.R. 167 (S.C.C.) — considered

R. v. Arcand (2010), 2010 ABCA 363, 2010 CarswellAlta 2364, [2010] A.J. No.1383, 264 C.C.C. (3d) 134, 40 Alta. L.R. (5th) 199, [2011] 7 W.W.R. 209,83 C.R. (6th) 199, (sub nom. R. v. A. (J.L.M.)) 499 A.R. 1, (sub nom. R. v. A.(J.L.M.)) 514 W.A.C. 1 (Alta. C.A.) — considered

R. v. Gladue (1999), [1999] S.C.J. No. 19, 1999 CarswellBC 778, 1999 Car-swellBC 779, 133 C.C.C. (3d) 385, 171 D.L.R. (4th) 385, [1999] 2 C.N.L.R.252, 23 C.R. (5th) 197, 238 N.R. 1, [1999] 1 S.C.R. 688, 121 B.C.A.C. 161,198 W.A.C. 161, [1999] A.C.S. No. 19 (S.C.C.) — followed

R. v. Hamlyn (2016), 2016 ABCA 127, 2016 CarswellAlta 782, [2016] A.J. No.442 (Alta. C.A.) — distinguished

R. v. Ipeelee (2012), 2012 SCC 13, 2012 CarswellOnt 4375, 2012 CarswellOnt4376, 91 C.R. (6th) 1, 280 C.C.C. (3d) 265, [2012] 2 C.N.L.R. 218, 428N.R. 1, 288 O.A.C. 224, [2012] S.C.J. No. 13, 318 B.C.A.C. 1, [2012] 1S.C.R. 433, 541 W.A.C. 1, 113 O.R. (3d) 320 (note) (S.C.C.) — followed

R. v. Isadore (2016), 2016 ABQB 83, 2016 CarswellAlta 182, [2016] A.J. No.141 (Alta. Q.B.) — considered

R. v. Laboucane (2016), 2016 ABCA 176, 2016 CarswellAlta 1072, [2016] A.J.No. 593 (Alta. C.A.) — followed

R. v. M. (C.A.) (1996), 46 C.R. (4th) 269, 194 N.R. 321, 105 C.C.C. (3d) 327, 73B.C.A.C. 81, 120 W.A.C. 81, [1996] 1 S.C.R. 500, 1996 CarswellBC 1000,1996 CarswellBC 1000F, [1996] S.C.J. No. 28, EYB 1996-67066(S.C.C.) — referred to

R. v. Ominayak (2007), 2007 ABQB 442, 2007 CarswellAlta 1812, 443 A.R. 1(Alta. Q.B.) — followed

R. v. Safarzadeh-Markhali (2016), 2016 SCC 14, 2016 CSC 14, 2016 Carswell-Ont 5652, 2016 CarswellOnt 5653, [2016] S.C.J. No. 14, [2016] A.C.S. No.14, 27 C.R. (7th) 265, 334 C.C.C. (3d) 1, 396 D.L.R. (4th) 575, 482 N.R. 90,347 O.A.C. 1 (S.C.C.) — referred to


Criminal Code, R.S.C. 1985, c. C-46ss. 718-718.2 — referred to

R. v. Okimaw Per curiam 381

s. 718.1 [en. R.S.C. 1985, c. 27 (1st Supp.), s. 156] — considereds. 718.2 [en. 1995, c. 22, s. 6] — considereds. 718.2(e) [en. 1995, c. 22, s. 6] — considered

APPEAL by accused from sentence imposed for aggravated assault and posses-sion of weapon for dangerous purpose.

T.L. Couillard, for RespondentG.M. Johnson, for Appellant

Per curiam:

Overview1 These reasons deal with the sentencing of a particular Aboriginal of-

fender for particular offences, and also aim to provide a practical frame-work for sentencing judges when called upon to decide whether, andhow, Gladue factors ought to be applied to sentencing an Aboriginaloffender.

2 This decision is intended to complement R. v. Laboucane, 2016ABCA 176 (Alta. C.A.).

Introduction and Grounds of Appeal3 On October 14, 2014, Mr. Frank James Okimaw was found guilty

after trial of aggravated assault and possession of a weapon — a knife —for a dangerous purpose.

4 On November 4, 2015, over a year later, Okimaw was sentenced to acustodial term of 30 months, less credit for 7.5 months of pre-sentencecustody, followed by 18 months’ probation. Mandatory DNA and s 109weapons prohibition orders also issued.

5 On his sentence appeal, Okimaw raises two grounds:

1. The sentencing judge erred in failing to give weight to specificGladue factors, resulting in a sentence that was demonstrably un-fit; and

2. The sentencing judge erred in treating as aggravating that thecomplainant was previously unknown to the appellant.

6 At sentencing, Okimaw submitted a fit sentence would be four to sixmonths’ incarceration deemed served by pre-sentence custody, and a pe-riod of probation. On appeal, Okimaw asks that his sentence be reducedto time served, arguing that the sentence imposed was unfit given hisyoung age, lack of significant record, and the failure to account for his


background as an Aboriginal offender in the circumstances of theseoffences.

7 The Crown defends the sentence imposed, submitting that no errorswere committed justifying appellate intervention; in particular, thatGladue factors were accounted for by imposition of a probation order.Moreover, irrespective of any errors as may be found by this Court, thesentence is in the appropriate range, and demonstrably fit.

8 For the reasons that follow, the appeal is allowed.

Standard of Review9 As with most appeals from sentence, some other sentence could have

been imposed. Absent an error in principle, failure to consider a relevantfactor, or an overemphasis of the appropriate factors, an appellate courtshould only intervene to vary a sentence imposed if the sentence is de-monstrably unfit: R. v. M. (C.A.), [1996] 1 S.C.R. 500 (S.C.C.) at paras89-90, (1996), 105 C.C.C. (3d) 327 (S.C.C.); R. c. M. (L.), 2008 SCC 31(S.C.C.) at para 14, [2008] 2 S.C.R. 163 (S.C.C.).

10 Sentencing is an exceedingly difficult task. Parliament explicitly vestssentencing judges with a discretion to determine the appropriate degreeand kind of punishment under the Criminal Code: ss 718-718.2. ThisCourt is permitted to interfere with the exercise of this discretion onlywhen legally necessary.

Analysis11 In R. c. Lacasse, 2015 SCC 64 (S.C.C.) at paras 3-6, [2015] 3 S.C.R.

1089 (S.C.C.), the Supreme Court of Canada restated the importance offitness of sentence:

The credibility of the criminal justice system in the eyes of the publicdepends on the fitness of sentences imposed on offenders. A sentencethat is unfit, whether because it is too harsh or too lenient, couldcause the public to question the credibility of the system in light ofits objectives.

... [I]n all cases in which general or specific deterrence and denuncia-tion must be emphasized, the courts have very few options other thanimprisonment for meeting these objectives, which are essential to themaintenance of a just, peaceful and law-abiding society.


12 R. v. Safarzadeh-Markhali, 2016 SCC 14 (S.C.C.) reiterates at paras70-71:

Proportionality in the sense articulated at s 718.1 of the Code — thata sentence be proportionate to the gravity of an offence and an of-fender’s degree of responsibility — is a fundamental principle of sen-tencing ... proportionality is “the sine qua non of a just sanction”. Itis grounded in elemental notions of justice and fairness, and is indis-pensable to the public’s confidence in the justice system.

13 We must consider whether Okimaw’s sentence was proportionate tothe gravity of the offence and his degree of responsibility.

The Gravity of the Offence14 “What is meant by “gravity of the offence”? This concept is directed

to what the offender did wrong. It includes two components: (1) the harmor likely harm to the victim; and (2) the harm or likely harm to societyand its values. What influences that analysis apart from the degree ofinjuriousness inherent in the crime itself? The answer lies in s 718.2”: R.v. Arcand, 2010 ABCA 363 (Alta. C.A.) at para 57, (2010), 499 A.R. 1(Alta. C.A.).

15 The gravity of these offences may be summarized as follows:Okimaw was in a liquor store in Edmonton when staff asked him toleave. He did so, and stood outside the store. Thereafter, the complainantand his girlfriend left the store, the girlfriend confronted Okimaw andaccused him of bothering the store employees. She shoved Okimaw, whoresponded by saying: “fuck you, bitch, what did you hit me for?” Thecomplainant then became involved and there was a brief verbal alterca-tion amongst the three. The verbal altercation ended when Okimawpunched the complainant in the jaw, and a physical fight between the twobroke out.

16 About 20 seconds into the physical fight, Okimaw pulled out a paringknife that he carried for protection when travelling through roughneighbourhoods. He stabbed the complainant eight times, causing onelaceration and seven penetrating wounds on his face, arms, spine andback. The girlfriend unsuccessfully attempted to intervene, punching andkicking Okimaw. Okimaw walked away, circling back twice but not at-tacking further, and ultimately fled.

17 At trial, Okimaw admitted to the facts of the aggravated assault, buttestified that he was acting in self-defence.


18 The sentencing judge found that: The evidence proves Okimaw honestly believed force or the threat offorce was being used against him. Physical contact, albeit mild, wasinitiated by the female in exiting the store. She was accompanied bya male about the same stature and weight as Okimaw. The accused’shistory as a previous stabbing victim sensitized his belief (SAR at3/34-38).

19 The sentencing judge concluded that Okimaw’s belief in the force orthreat of force being used against him was reasonably held: he did notknow the complainant and his girlfriend, he had been challenged andpushed by them while they were in close proximity to him, and he hadpreviously been the victim of a stabbing, when outnumbered.

20 The sentencing judge found beyond a reasonable doubt, however, thatOkimaw did not stab the complainant to protect or defend himself, andsuch response was otherwise “grossly disproportionate” to the events.

21 No victim impact statement was given, nor was there any finding oflong-term injuries to the complainant.

The Offender’s Degree of Responsibility22 “The greater the harm intended or the greater the degree of reckless-

ness or wilful blindness, the greater the moral culpability”: Arcand atpara 58.

23 At the time of these offences, Okimaw was 27 years old. He had nineprior criminal convictions beginning in 2007. None of those convictionsrelated to violent offences, though Okimaw did have three weaponsconvictions.

24 Okimaw was an alcoholic and drug addict. On the date of the of-fences, he had consumed both alcohol and drugs after becoming de-pressed about not seeing his children, the death of his son, and a break-down in his intimate domestic partner relationship. He had not slept thenight before, or taken his prescribed medications. He recalled beingoutside the liquor store and being struck by a female and getting into aconfrontation with a male. Okimaw said he acted on impulse: having pre-viously been attacked in another incident, he stabbed the male. He admit-ted responsibility, was remorseful and stated that “... there was no excusefor something like this to happen and I am grateful because it could havebeen worse” (EKE at A32-33).


The Offender’s Unique Background and Systemic Factors25 Okimaw’s personal circumstances and background were detailed in

the pre-sentence report, and in a Gladue report.26 We find that Okimaw’s personal circumstances are founded on the

unique systemic and background factors which played a part in bringingthis particular Aboriginal offender before the court, and these unique sys-temic and background factors reasonably and justifiably impact on thesentence imposed.

a) History of “colonialism, displacement [abandonment] andresidential schools”(R. v. Ipeelee, 2012 SCC 13 (S.C.C.) at para 60,[2012] 1 S.C.R. 433 (S.C.C.))

27 Okimaw is an Aboriginal male and a registered member of theDriftpile First Nation located east of High Prairie, Alberta, his Aboriginalstatus originating from his late father. There was no residential school inDriftpile; the St Bruno Residential School was located just outside thecommunity and ran for more than 56 years between 1913 and 1969.

28 Okimaw’s primary caregiver, his paternal grandmother (kokum), at-tended St Bruno from the age of seven, where she “... did not learn any-thing ... could not speak our language ... they did not give a shit andalways slapped and hit you ... [and she] hated school” (EKE at A12).Throughout her time at St Bruno, she was allowed to see her parentsonce a week for a few hours. When she left St Bruno at age 16, she hadonly a grade four education.

29 After leaving school, Okimaw’s kokum met and married JulianOkimaw, also a member of the Driftpile First Nation. The couple had sixchildren, including Okimaw’s father. Julian Okimaw died in a farmingaccident in 1965; Okimaw’s kokum later commenced a long-term rela-tionship with a non-Aboriginal man, Lionel Lalonde. Okimaw maintainsa good relationship with Lionel Lalonde, and enjoys the continued loveand support of Lionel and his kokum.

30 Although his kokum provided some traditional Aboriginal guidanceto Okimaw throughout his life, “she practices the Catholic faith becauseshe attended residential school ... she attends church and prayers ...”(EKE at A30). Okimaw recalls attending Sunday school as a child.

31 Okimaw’s parents separated shortly after Okimaw’s birth; he waspredominantly raised by his kokum, and to a lesser extent, his father.Okimaw has spent the majority of his life in Edmonton, though he did


reside for a period of time on the Driftpile reserve when he was younger.Throughout his childhood, Okimaw would move back and forth betweenhis grandmother’s home and his father’s residence.

32 While he has “fond memories” of living with his kokum, Okimaw’schildhood time when with his father was filled with abuse and strife(EKE at A15-16). His father never held down a regular job and was in-volved in numerous domestic relationships, with the result that Okimawhas four half-siblings on his paternal side. His father was an alcoholicwho began drinking at age 13 and was living on the streets by the time hewas 16. Likewise, Okimaw left home (at age 15) and ended up on thestreets. Although Okimaw and his father enjoyed a better relationship inthe last few years, Okimaw’s father ultimately developed cirrhosis of theliver and died while Okimaw was in custody prior to sentencing;Okimaw was unable to attend his father’s funeral.

33 Okimaw’s mother never provided meaningful or sustained care forhim as a child (or any of her other children, his six maternal half-sib-lings); she remains entirely absent from his life. Okimaw believes hismother is a First Nations member but is unsure of her home communityor her family background. He has no knowledge about his maternalgrandfather, and recalled visiting his maternal grandmother only “on afew occasions” when he was younger (EKE at A12). Okimaw recalledliving with his mother for two months when he was six years old, andthen not seeing her again until he was 13; she has never met any of hisown children, the eldest of whom is now 10 years of age.

34 Okimaw has a total of 10 half-siblings, but he did not meet any ofthem, except one half-sister, until he was 16 years old; his half-siblingswere all raised by “... other people or relatives” (EKE at A14). At leasttwo of his mother’s other children spent time in foster care and grouphomes. At the time of sentencing, Okimaw enjoyed a close relationshipwith five of his siblings and many of his cousins.

35 Okimaw recalled hunting and fishing with his father on the Driftpilereserve, but states that whenever he now returns to the Driftpile reserve“something always happens” (EKE at A29). He reports that his cousinssell drugs and are involved in gangs. When he was 25, three people at-tacked him and he ended up in hospital with broken teeth and ribs. Onanother occasion, gangs from the surrounding areas were retaliatingagainst a gang in Driftpile, and he and his cousins were shot at near thecommunity school.


b) Violence, Substance Abuse, and Rehabilitation36 Okimaw both witnessed domestic violence and suffered physical

abuse in his childhood home. As he was growing up he was beaten, andrecalls his father drinking alcohol and hitting him “all the time”; he alsorecalls his father hitting his mother, other domestic partners and his half-siblings (EKE at A15). The police would frequent the home when he wasyounger. His father was incarcerated on various occasions throughout hischildhood. Okimaw remembers being struck when he tried to interveneas his father was assaulting his common law partners over being “jeal-ous” (EKE at A15). Because of the abuse he witnessed as a child,Okimaw promised himself to “... never hit women” (EKE at A15-16).

37 Okimaw began consuming drugs and alcohol when he was 8 yearsold; he recalls his family thinking it was “funny” when he was drunk orhigh (EKE at A25). An uncle used him to sell crack cocaine, andOkimaw started selling drugs to other students at his school. Given that itwas part of his everyday life, Okimaw came to think of substance abuseas “normal”; his was a “family that drank together and used drugs” (EKEat A24-25). By age 13, Okimaw became a frequent consumer of mari-juana; by age 16, he was regularly consuming cocaine and crystalmethamphetamine.

38 At 14 years of age, Okimaw began associating with a gang. He was amember of the gang between 2000 and 2007. During his time as a gangmember he sold drugs, as did his fellow gang members. At age 21,Okimaw decided he no longer wanted to be part of gang life and begandisassociating himself from that culture.

39 In 2010, when coming to the aid of a friend who was being harassedby two men, Okimaw was stabbed and suffered significant physical inju-ries. He was later diagnosed with Post-Traumatic Stress Disorder (PTSD)and anxiety from that event, and continues to take therapy and substantialmedications for these conditions, as well as for his ADHD, depression,pain and respiratory problems. He is under the regular care of aphysician.

40 In 2011, Okimaw successfully completed a 19-day treatment programat Henwood. On learning that his girlfriend had been unfaithful duringhis absence, he relapsed. In 2013, he participated in a day program forAddictions and Mental Health, and maintained some sobriety afterwards,but continues to struggle with substance abuse and addictions — both al-cohol and drugs (particularly marijuana and methamphetamine). At sen-tencing, he acknowledged that he continues to need treatment. He com-


pleted some addictions and relapse prevention programing while incustody pending sentencing, and also completed programs in anger man-agement, harm reduction training and parenting. He was extensively in-volved with the Positive Energy, Action and Knowledge program at theEdmonton Remand Centre. Through those programs, Okimaw completeda release plan that includes participation in various community programsfor parenting, addictions, and anger management counselling.

41 Okimaw regularly participated in sweats while incarcerated pendingsentence; he maintains an interest in reconnecting with his Aboriginalheritage and spirituality, including learning to speak his traditional Creelanguage.

c) Physical and Mental Health42 Sometime between 5 to 7 years of age, Okimaw was referred to a

psychologist after having trouble focusing and sitting still in school, andhe believes he was diagnosed at that time with Attention Deficit Disorder(this diagnosis of ADD again confirmed while he attended at Henwood),Attention Deficit Hyperactivity Disorder (ADHD), Fetal Alcohol Spec-trum Disorder (FASD), and depression. While his father could not con-firm the FASD diagnosis, his father did recall that both he and Okimaw’smother “drank a lot” while she was pregnant with him (EKE at A27).Okimaw also recalls his father telling him when he was a child that “...ADD kids don’t listen, need discipline and are disrespectful” (EKE atA15).

43 Okimaw denies any suicidal ideation. In 2014, however, he slit hiswrists after a domestic dispute following the death of his son. At thattime, his ex-common law spouse (mother of their deceased son) hadthreatened to hang herself. Okimaw did not seek help or therapy in rela-tion to these incidents.

44 There is no family history of suicide, but Okimaw witnessed a friendcut his own throat; Okimaw stated that this incident did not really affecthim after being so “accustomed to witnessing violence” in his past (EKEat A28).

d) Lower income, high unemployment, lack of opportunity and options,lack or irrelevance of education (R. v. Gladue, [1999] 1 S.C.R. 688(S.C.C.) at para 67)

45 Despite the challenges during his childhood, including experiencingracism and bullying as the “only native kid” in junior high, having few


friends and feeling ashamed about his broken home, Okimaw completedhis high school education (EKE at A21-22). He went on to begin study atBoyle Street Education Centre to become an apprentice chef, and won anAlberta Centennial top student award. Rather than spending the moneyon his own education, he used it to support his young family. After thebirth of his child, he left school to seek employment. For more than adecade, Okimaw worked at various restaurants in Edmonton. In 2012, hisphysician deemed him unemployable due to ongoing problems withPTSD, ADD and depression. At sentencing, Okimaw was on social assis-tance, in debt and unable to pay child support, yet hopeful that he couldreturn to paid employment and complete his Red Seal cook’scertification.

e) Domestic Relationships and Children46 Okimaw has been involved in two long-term intimate domestic rela-

tionships, both with indigenous women. The first relationship startedwhen he and his partner were in their mid-teens. This relationshiplasted10 years, and the couple had three children, now about 10, 8 and 6years of age. Okimaw attributes the breakdown of this relationship to hisinvolvement with drugs, alcohol and gang life. His children now livepredominantly with their mother, but Okimaw used to enjoy access onthe weekend, once every two weeks. The second relationship lasted from2011 to 2014; this partner has three children from a previous relation-ship. The couple’s child born in 2013 died at birth, devastating Okimaw.At sentencing, Okimaw had a girlfriend, the mother of a 3 year old. Thiswoman was studying nursing at Norquest College. Various sources re-port that this relationship was healthy, free from drugs and alcohol, andinvolved caring for each partner’s children.

47 Okimaw is described as a good father who loves his children. He“values his children and is committed to being a part of their lives”, andbelieves in giving and receiving family support (EKE at A30). His familyand current girlfriend describe him as a helpful, respectful, loveable manwho enjoys both work and school.

The Decision Below48 At sentencing, Okimaw had significant community support: eleven

friends and family attended. The author of the pre-sentence report was ofthe opinion that if Okimaw was able to follow through with available


community support, he was a suitable candidate for supervision in thecommunity.

49 The sentencing judge determined that denunciation and deterrencewere the primary sentencing principles in this matter, and noted thatthere is a broad range of possible sentences for aggravated assault.

50 The sentencing judge acknowledged reading both the pre-sentenceand Gladue reports, and the list of Gladue factors set out therein: sub-stance abuse, domestic violence, mental and physical health, and a his-tory of residential schools. He found that while the Gladue report sug-gested potential sentencing sanctions, it did not explain “any impact onOkimaw’s moral blameworthiness for the offence committed” (SAR at72/9-11). In consequence, while stating that systemic factors played arole in bringing Okimaw before the court, the sentencing judge foundthat the existence of systemic factors were of limited relevance and of“limited impact in determining sentence quantum” for these offences(SAR at 72/15-16). Relatedly, although the sentencing judge found thatthe mitigating factors in this case included “at least to some extent, theexistence of systemic Gladue factors”, he did not find such factors hadany bearing on Okimaw’s moral blameworthiness for these offences(SAR at 73/18-19). We disagree with both of these conclusions for rea-sons set out below.

51 The sentencing judge also found it aggravating that the complainantwas a “stranger”, and that Okimaw was armed and “prepared for poten-tial battle” (SAR at 73/12-13). Again, we disagree for reasons set outbelow.

52 Finally, the sentencing judge found that Okimaw’s reaction to theharm he perceived was excessive and Okimaw was not acting in self-defence; this was a finding the sentencing judge was entitled to make attrial, is undisputed on appeal, and cannot be disturbed.

Applicable Principles53 In R. v. Hamlyn, 2016 ABCA 127 (Alta. C.A.) at paras 19-23, this

Court reiterated that denunciation and deterrence remain the primary sen-tencing principles in offences involving serious aggravated assaults witha weapon. Resort to the use of a weapon is always capable of causinglife-threatening injuries, and must be treated with significantcondemnation.

54 Unlike the Hamlyn facts, this was not an entirely unprovoked andpremeditated assault. The complainant and his girlfriend verbally and


physically confronted Okimaw, a stranger, about what they had seen tak-ing place earlier in the liquor store. Previously Okimaw had been simi-larly confronted by two unknown persons who stabbed him. This previ-ous experience, coupled with experiences from his youth and from histime living on the streets, led him to carrying a knife for protection. Thisfact was uncontroverted.

55 We hasten to make plain that we are not suggesting that the com-plainant and his girlfriend did something culpable which would warrantan armed response. We are not approving of vigilantism. The importantpoint is that the law since the enactment of s 718.2(e) of the Code, andsince the pronouncement of the decision in Gladue and later cases, hasreminded courts that personal culpability under s 718.1 of the Code isrelated to the circumstances which constituted the offender’s upbringingand life experience. It cannot be doubted that a life of abuse, hardship,insecurity, dislocation and rejection will be braided into the thinkingprocesses of any individual from a young age. Any person with such anupbringing may violently react to perceived aggression in a more pre-emptive or excessive manner than would be the case with others whoselives have not been so afflicted since childhood. In devising the appropri-ate sentencing response, it is important to understand the individual.Armed assaults that are forethought or driven by malice are not the sameas those which are reactive.

56 Tragically, for all too many Aboriginal people, the situation of theoffender as an Aboriginal person may have further entrenched thetraumas of youth. The Crown does not dispute, and in our view it is fun-damentally incontrovertible that Okimaw’s prenatal, childhood and youthexperiences were directly connected to his family’s intergenerationaltrauma, which trauma related to indigenous peoples’ historical involve-ment with colonialism, displacement, and residential schools. Mr.Okimaw is a present day, living artefact — that is, an unintended conse-quence — of how the history of Canada’s indigenous peoples continuesto translate into lower educational attainment and incomes, higher unem-ployment, higher rates of substances abuse and suicide, and higher levelsof incarceration for Aboriginal peoples. The judiciary is obliged to assessthese unique background and systemic factors in determining the appro-priate sentence for a particular offender: Gladue, Ipeelee. See also Hon-oring the Truth, Reconciling for the Future, Summary of the Final Re-port of the Truth and Reconciliation Commission of Canada (2015).


57 We are well aware that Gladue factors, on their own, do not necessa-rily justify a lesser sentence for an Aboriginal offender, if by lesser ismeant less custodial time. Rather, giving attention to Gladue factors mayprovide the necessary context for understanding and evaluating the case-specific information presented to the court: see Laboucane at paras 50-64.

58 Ipeelee at para 72 carefully lays out the methodology arising fromGladue that is to be used by a sentencing judge, which methodology isdesigned to:

[F]ocus on those unique circumstances of an Aboriginal offenderwhich could reasonably and justifiably impact on the sentence im-posed. Gladue directs sentencing judges to consider: (1) the uniquesystemic and background factors which may have played a part inbringing the particular Aboriginal offender before the courts; and (2)the types of sentencing procedures and sanctions which may be ap-propriate in the circumstances for the offender because of his or herparticular Aboriginal heritage or connection. Both sets of circum-stances bear on the ultimate question of what is a fit and propersentence.

59 Ipeelee at para 73 says that if such circumstances exist, “[f]ailing totake these circumstances into account would violate the fundamentalprinciple of sentencing — that the sentence must be proportionate to thegravity of the offence and the degree of responsibility of the offender”(emphasis in original). And, the existence of such circumstances “mayalso indicate that a sanction that takes account of the underlying causesof the criminal conduct may be more appropriate than one only aimed atpunishment per se,” referencing para 69 of Gladue:

In cases where such factors have played a significant role, it is in-cumbent upon the sentencing judge to consider these factors in evalu-ating whether imprisonment would actually serve to deter, or to de-nounce crime in a sense that would be meaningful to the communityof which the offender is a member. In many instances, more restora-tive sentencing principles will gain primary relevance precisely be-cause the prevention of crime as well as individual and social healingcannot occur through other means.

60 Second, the type of sanctions which may be appropriate for the of-fender because of his or her particular Aboriginal heritage or connection“bears not on the degree of culpability of the offender, but on the effec-tiveness of the sentence itself”: Ipeelee at para 74. Gladue principles di-rect sentencing judges to “abandon the presumption that all offenders and


all communities share the same values when it comes to sentencing andto recognize that, given these fundamentally different world views, dif-ferent or alternative sanctions may more effectively achieve the objec-tives of sentencing in a particular community”: Ipeelee at para 74.

61 To be clear: section 718.2(e) does not create a race-based discount onsentencing. Instead, both Ipeelee and Gladue make explicit:

... the requirement that sentencing judges engage in an individualizedassessment of all the relevant factors and circumstances, includingthe status and life experiences, of the person standing before them.Gladue affirms this requirement and recognizes that, up to this point,Canadian courts have failed to take into account the unique circum-stances of Aboriginal offenders that bear on the sentencing process.Section 718.2(e) is intended to remedy this failure by directingjudges to craft sentences in a manner that is meaningful to Aboriginalpeoples. Neglecting this duty would not be faithful to the core re-quirement of the sentencing process: Ipeelee at para 75

(emphasis added).

62 Laboucane at para 63 summarizes the principles emerging from theSupreme Court of Canada’s decision in Ipeelee, as follows:

1. An offender is not required to establish a causal link betweenbackground factors and the commission of the current offencebefore being entitled to have those matters considered by thesentencing judge: Ipeelee at para 83. R v Poucette, 1999ABCA 305, 250 AR 55 is wrongly decided.

2. There is nothing in the Criminal Code, or Gladue, that placesthe burden of persuasion on an Aboriginal accused. As ex-pressed in Gladue, Wells and R v Kakekagamick, [2006] 81OR (3d) 664 (CA), the sentencing judge must “give attentionto the unique background and systemic factors which mayhave played a part in bringing the particular offender beforethe courts”: Gladue at para 69. This is a much more modestrequirement than the causal link suggested by some trialjudges: R v Collins, 2011 ONCA 182, 277 OAC 88.

3. Systemic and background factors “do not operate as an ex-cuse or justification for the criminal conduct. Rather, theyprovide the necessary context to enable a judge to determinean appropriate sentence”: Ipeelee at para 83.

4. Unless the unique circumstances of the particular offenderbear on his or her culpability for the offence or indicate whichsentencing objectives can and should be actualized, “they willnot influence the ultimate sentence”: Ipeelee at para 83.


5. Numerous courts have wrongly concluded that Gladue princi-ples do not apply to serious offences. This is due to their erro-neous interpretation of the “generalization” (so-called by theSupreme Court of Canada) in Gladue which says:“[g]enerally, the more violent and serious the offence themore likely it is as a practical reality that the terms of impris-onment for aboriginals and non-aboriginals will be close toeach other or the same, even taking into account their differ-ent concepts of sentencing”: Ipeelee at para 84; Gladue atpara 79; R v Wells, 2000 SCC 10 at paras 42-44, [2000] 1SCR 207. Gladue principles apply to all offences, regardlessof relative seriousness.

6. Gladue makes clear that sentencing judges have a duty to ap-ply s 718.2(e). “There is no discretion as to whether to con-sider the unique situation of the aboriginal offender; the onlydiscretion concerns the determination of a just and appropri-ate sentence”: Gladue at para 82. “In each case, the sentenc-ing judge must look at the circumstances of the aboriginal of-fender”: Wells at para 50.

7. This element of judicial duty during sentencing deliberationshas been explicitly recognized in Alberta: R v Abraham,2000 ABCA 159, 261 AR 192.

8. Failure to undertake the statutory duty imposed by s 718.2(e)of the Criminal Code, and failure to apply Gladue principlesin any case involving an Aboriginal offender (unless ex-pressly waived by the offender) constitutes an error justifyingappellate intervention: Ipeelee at para 87.

9. But, nothing in s 718.2(e) of the Criminal Code provides thatan automatic discount from an otherwise proportionate sen-tence should be given merely because the offender is an Ab-original person: Ipeelee at para 74; R v Holloway, 2014ABCA 87 at para 42, 572 AR 121; R v Popowich, 2013ABCA 149 at para 24, 544 AR 312; R v Guimond, 2016MBCA 18 at paras 6-7, 26 CR (7th) 295. “The fact that thesentencing judge was required to consider s 718.2(e) does notmean she was to ignore the effects of the offender’s conducton his community ... or on the various individuals who havesuffered and continue to suffer as a result of” the offences: Rv Johnny, 2016 BCCA 61 at para 21, 26 CR (7th) 304.


Errors in the Decision Below63 Sentencing decisions are always a difficult task; nonetheless, the de-

cision below reveals certain legal errors that compel appellateintervention.

a) Failure to Give Proper Consideration to Gladue Factors64 The decision below fails to properly consider the specific Gladue fac-

tors that bear on Okimaw’s culpability for these particular offences.Merely acknowledging “the existence of systemic factors”, as here, isinsufficient. Rather, sentencing judges have a duty to consider “theunique systemic and background factors which may have played a part inbringing the particular Aboriginal offender before the courts”: Ipeelee atpara 72. The unique circumstances of the particular Aboriginal offendermay also bear on the types of sentencing procedures and sanctions whichmay be appropriate in the circumstances: Laboucane at paras 55, citingIpeelee at paras 72-75.

65 Consideration of this necessary context is effectively absent from, orat least is given insufficient weight, in the sentencing decision under re-view. Further, the sentencing judge erred in his apparent dismissal of anyjudicial obligation for analysis of this necessary context by finding thatthe Gladue report “address[ed] potential sentence sanctions rather thanexplaining any impact on Okimaw’s moral blameworthiness for the of-fence committed” (SAR at 72/10-11).

66 First, it is not the role of the Gladue reporter to explain such an “im-pact on moral blameworthiness”. Such reports are to provide the “neces-sary context for understanding and evaluating the case-specific informa-tion”, but it remains the sentencing judge’s responsibility to dulyconsider that information “in fulfilling his duties under s. 718.2(e) of theCriminal Code” in order to arrive at a sentence that is truly proportionateto the gravity of the offence and the degree of responsibility of the of-fender: Ipeelee at paras 60, 74-75. This duty can never be delegated by asentencing court, which must itself carry out an “individualized assess-ment” of Gladue factors as it relates to blameworthiness. As pointed outby Moldaver J in R. v. Anderson, 2014 SCC 41 (S.C.C.) at para 25,[2014] 2 S.C.R. 167 (S.C.C.):

Importantly, both Gladue and Ipeelee speak to the sentencing obliga-tions of judges to craft a proportionate sentence for Aboriginal of-fenders. They make no mention of prosecutorial discretion and donot support Mr. Anderson’s argument that prosecutors must consider


Aboriginal status when making a decision that limits the sentencingoptions available to a judge. Mr. Anderson’s argument in effectequates the duty of the judge and the prosecutor, but there is no basisin law to support equating their distinct roles in the sentencing pro-cess. It is the judge’s responsibility to impose sentence; likewise, it isthe judge’s responsibility, within the applicable legal parameters, tocraft a proportionate sentence. If a mandatory minimum regime re-quires a judge to impose a disproportionate sentence, the regimeshould be challenged.

[Emphasis added]

67 Second, in our view the Gladue factors present in this matter werelargely self-explanatory as to effect, and contextually understandable —the listed systemic factors, in a direct, deep and sustained manner, havehad an obvious and profoundly adverse and harmful impact uponOkimaw. His moral blameworthiness is diminished in consequence.

68 While the sentencing judge would have benefitted from better sub-missions at the sentencing hearing (defence counsel said Okimaw “wasnot directly involved” in the systemic factors set out in the report),Ipeelee at para 73 makes clear that such systemic and background factorsmay “shed light on [an Aboriginal offender’s] level of moral blamewor-thiness”, specifically by playing a part in that offender’s conduct. It is thenon-delegable duty of a sentencing judge to duly assess those factors.Just as an accused does not have to show a causal connection betweenthose factors and a particular offence, there is no requirement that theoffender be “directly involved” as, for example, by the offender himselfhaving attended residential schooling. As stated in Ipeelee at para 73:

First, systemic and background factors may bear on the culpability ofthe offender, to the extent that they shed light on his or her level ofmoral blameworthiness. This is perhaps more evident in Wells whereIacobucci J. described these circumstances as “the unique systemic orbackground factors that are mitigating in nature in that they mayhave played a part in the aboriginal offender’s conduct” (para. 38(emphasis added)). Many Aboriginal offenders find themselves insituations of social and economic deprivation with a lack of opportu-nities and limited options for positive development. While thisrarely — if ever — attains a level where one could properly say thattheir actions were not voluntary and therefore not deserving of crimi-nal sanction, the reality is that their constrained circumstances maydiminish their moral culpability. As Greckol J of the Alberta Court ofQueen’s Bench [as she then was] stated, at para 60 of R v Skani,2002 ABQB 1097, 331 AR 50, after describing the background fac-


tors that lead to Mr. Skani coming before the court, “[f]ew mortalscould withstand such a childhood and youth without becoming seri-ously troubled.” Failing to take these circumstances into accountwould violate the fundamental principle of sentencing — that thesentence must be proportionate to the gravity of the offence and thedegree of responsibility of the offender. The existence of such cir-cumstances may also indicate that a sanction that takes account of theunderlying causes of the criminal conduct may be more appropriatethan one only aimed at punishment per se

(emphasis in original).

b) Misinterpretation of Gladue69 The further dismissal of these Gladue factors by the sentencing judge

on the basis of the seriousness of the offences alone, here by his refer-ence to the often misinterpreted statement in Gladue that the more seri-ous and violent the offence, the less likely the term of imprisonment willvary as between an Aboriginal or non-Aboriginal offender, was in error.Ipeelee at paras 84-85 makes clear that even in such violent cases,Gladue factors and s 718.2(e) must be considered. As stated in Ipeelee atpara 79, with emphasis added:

In practice, similarity is a matter of degree. No two offenders willcome before the courts with the same background and experiences,having committed the same crime in the exact same circumstances.Section 718.2(b) simply requires that any disparity between sanctionsfor different offenders be justified. To the extent that Gladue willlead to different sanctions for Aboriginal offenders, those sanc-tions will be justified based on their unique circumstances — cir-cumstances which are rationally related to the sentencing pro-cess. Courts must ensure that a formalistic approach to parity insentencing does not undermine the remedial purpose of s. 718.2(e).As Professor Quigley cautions, at p. 286:

Uniformity hides inequity, impedes innovation and locksthe system into its mindset of jail. It also prevents us fromre-evaluating the value of our aims of sentencing and theirefficacy.

It is true that on the surface imposing the same penalty forthe nearly identical offence is only fair. That might becloser to the truth in a society that is more equitable, morehomogenous and more cohesive than ours. But in an eth-nically and culturally diverse society, there is a differen-tial impact from the same treatment. Indeed, that has been


recognized in the jurisprudence on equality rights underthe Charter. Thus, there is a constitutional imperative toavoiding excessive concern about sentence disparity.

70 Equally relevant, Okimaw’s culpability must be considered in thecontext of his specific physical and mental health. Okimaw suffers fromADHD, PTSD, anxiety, depression, and, most likely — given his father’sadmission that his mother “drank a lot” during pregnancy — FASD.None of these physical and mental health concerns were mentioned bythe sentencing judge, much less assessed when determining Okimaw’slevel of moral blameworthiness. Okimaw’s individual circumstances dis-tinguish him from other offenders committing similar offences.

c) Overemphasizing as Aggravating That the Complainant Was a“Stranger”

71 The sentencing judge also found it aggravating that the complainantwas a “stranger” to Okimaw, who “was armed with a knife and was pre-pared for potential battle”. This, despite having previously accepted attrial that Okimaw carried the knife for his own protection. Although thecomplainant and his girlfriend were unknown to Okimaw, the eventswere not of the genuinely inexplicable, senseless or random type of at-tack made on completely unconnected, non-participating bystanders, asthose circumstances might justify finding a discrete, additional aggravat-ing factor beyond what is already an essential element of the offence ofaggravated assault, and what can be presumed by the very nature of theoffence of possession of a weapon for a dangerous purpose.

72 It was the complainant and his girlfriend who approached Okimawwithout invitation, or his consent, after which a confrontation ensued. Asnoted above, the circumstances here do not directly excuse the resultingactions of Okimaw, nor do the circumstances operate in any way to castblame on the complainant or his girlfriend. It is an uncontested finding offact, however, that Okimaw’s prior experience with similar confronta-tions caused him to arm himself: not for the purpose of being “preparedfor potential battle”, as found, but because he wanted some protectionshould he find himself outnumbered on the tough streets. To the extentthat this identified aggravating factor provided any independent founda-tion, outside of the elements of the crimes, for the sentencing judge toincrease Okimaw’s sentence, this was an error.


Summary73 “Proportionality is the sine qua non of a just sanction”: Ipeelee at

para 37. In this case, the failure to meaningfully consider whether, andhow, Gladue factors bore on this offender’s culpability for these of-fences, the misinterpretation of Gladue, together with an error in decid-ing it was aggravating that this was a “stranger” attack, cumulatively re-sulted in a reversible overemphasis on denunciation and deterrence and asentence that did not properly account for Okimaw’s reduced level ofmoral blameworthiness for these offences.

74 In the result, Okimaw’s sentence was demonstrably unfit. We musttherefore sentence afresh.

The Appropriate Sentence

a) Step One: Do Gladue Factors Bear on this Offender’s Culpability?75 For Okimaw, unique background and systemic factors are not merely

matters of historical or socio-legal theory. Rather, unique backgroundand systemic factors are inextricably embedded in Okimaw’s own lifeexperiences and clearly bear on his culpability for these offences. Hispersonal development — as an infant, child, teenager and young adult —was shaped by these very factors and they provide the necessary contextto enable the court to determine an appropriate sentence.

76 Okimaw was literally conceived into the multiple intergenerationaltraumas that afflicted, and continue to afflict, his family. Other than hiskokum, family members simply could not triumph over, or ultimatelysurmount, the collective traumas that befell them. Intergenerationaltraumas have consumed and devastated Okimaw’s family. His ownmother prenatally exposed Okimaw to irreparable harm by continuing toconsume alcohol — ethanol squarely implicated in causing Fetal AlcoholSpectrum Disorder for which there is no known cure or ability to reversethe sequelae of malformation and organic brain damage. Okimaw’smother abandoned him. His primary caregiver, his beloved kokum, at-tended residential school and there suffered from physical and emotionalabuse, under-education, loss of her language and culture, and deliberateeradication of her Aboriginal identity and personal dignity. Okimaw’sfather could not parent him, abused alcohol and was physically violent toOkimaw and others whom Okimaw loved. Okimaw’s attempts to inter-vene to protect loved ones had no apparent impact on his father, whocontinued abusing alcohol and perpetrating violence against those aroundhim.


77 Okimaw chose gang life. It is entirely understandable that he mightseek the comparative structure, companionship, personal protection andsafety of a gang over the chaos, disharmony and violence of his homelife. Okimaw conformed to gang culture expectations throughout hisformative teenage years and into young adulthood. We emphasize thatwe are talking about the realities of Okimaw’s existence, not approvinghis choices. Gang participation was one of the worst things that couldhave happened to him: its re-enforcement of anti-social thinking and itswithering of empathy dragged him further into anti-social behaviour.Providing more positive options for disoriented youth is a compellingsocial need that unfortunately the criminal justice system cannot meet.But the criminal justice system, as Gladue teaches, cannot be obliviousto the cumulative distortive effects of a lack of pro-social options, andthe resultant bad choices of individuals. It is very difficult to break cy-cles, once ingrained.

78 At age 15, Okimaw chose to leave the Driftpile reserve for the streetsof Edmonton, again perhaps seeking respite from his family’s relentlessalcohol and drug use, violent behaviour and criminality. A stark choicefor a minor, who started consuming alcohol at age 8 and using illicitdrugs soon after.

79 It is uncontested that Okimaw lacked constancy in his family supportstructure that may have led him to make better life choices. He was con-scripted by his own uncle to sell drugs; family members thought it funnywhen he reacted to the effects of alcohol and drugs; he was raised inprofound dysfunction, dysfunction that was literally toxic to this youngchild. It seems likely that Okimaw decided that if he was to survive, hemust leave the reserve.

80 Okimaw has been uniquely, individually and personally affected bydislocation, abandonment, violence inflicted upon him and in his familyhome and community (including gang life), substance abuse, poverty, is-sues with physical and mental health (including a likely diagnosis ofFASD), the experience of racism, loss of culture, language and tradition,and the lack of educational, employment and social opportunities. All ofthese factors shed light on Okimaw’s level of moral blameworthiness.Viewed in this light and with this understanding, as we must, it seemsthat the forms of reactive offences engaged in by Okimaw are all toocommon by those who have been marginalized, have endured living onthe streets, and have been victims of horrific, gratuitous violence them-selves. As in Ipeelee at para 83, although these factors do not “operate as


an excuse or justification for the criminal conduct”, they do “provide thenecessary context to enable a judge to determine an appropriatesentence.”

81 In sum, at a core level Okimaw’s family has been deeply damaged bymultiple kinds of intergenerational trauma. These uncontroverted factsmust be understood in the context of the systemic factors discussed inGladue and Ipeelee.

82 The systemic and historic factors experienced by Okimaw’s grand-parents and parents created insuperable obstacles to social normalcy thatrobbed them of the incentive and means to achieve, and caused dire so-cial and economic deprivation. This is Okimaw’s seriously troubled lifeexperience. These factors have not only had a direct impact on Okimaw’sculpability, they also speak to the sustained nature of what has been, andcontinues to be, a disproportionately very common indigenous experi-ence in Canada, cycling through generations of indigenous families,communities, and chosen ways of life.

83 As aptly argued by Okimaw’s counsel during this appeal, the fact thatOkimaw was carrying a knife for protection while out on the streets inwhat he perceived to be a rough neighbourhood was reflective of his spe-cific background; in particular, as an Aboriginal male who has witnessed,suffered, and internalized violence, addiction, poverty, and racism.

84 Recognition of these facts is not to disregard deterrence and denunci-ation as the primary sentencing principles where, as here, the knifeOkimaw was carrying was used to inflict serious injury. However, in thecase of this particular Aboriginal offender and these particular offences,principles of deterrence and denunciation must be considered and, tosome extent, tempered by Gladue factors because those factors were atthe root of, and drove, Okimaw’s compulsion to pick up and carry aknife for self-protection.

85 R. v. Ominayak, 2007 ABQB 442 (Alta. Q.B.) at para 237, (2007),443 A.R. 1 (Alta. Q.B.) says that:

The factors in assessing moral blameworthiness include: (1) the na-ture and quality of the acts themselves; (2) the circumstances inwhich they occurred; (3) the motivation behind them; (4) the methodby which they were committed; and (5) the offender’s state of mindin committing the offences, namely whether they were at the lower orhigher end of mens rea in terms of planning and deliberation as wellas foresight of harm.


In assessing the first factor, the quantity and quality of the stabbing ac-tions are rightly implicated in the sentencing judge’s finding of a highdegree of moral blameworthiness. But, on a fair assessment of this caseon the remainder of the Ominayak factors, the specific facts must operateto reduce, or ameliorate, the high level of moral blameworthiness.Okimaw acted on impulse, not through premeditation. He did not createthe situation. Rather, he reacted in an excessive and legally unacceptableway. That he did not, or could not, control the situation in a more pro-social way goes directly to his state of mind: he was fearful of beingoutnumbered, and afraid of being attacked and hurt again. His actionsand reactions were the product of a lifetime of cultural, social, and eco-nomic strife. We must not lose sight of the fact that despite his history ofpersonal adversity and his seriously troubled background, this is the firsttime in Okimaw’s 27 years that he was convicted of a violent offence.

86 Okimaw’s life experiences as an Aboriginal offender are quite similarto those described in R. v. Isadore, 2016 ABQB 83 (Alta. Q.B.), alsoinvolving a member of the Driftpile First Nation. As eloquently said byClackson J in Isadore at para 34, the described and uncontradicted exper-iences of these offenders speak directly to moral blameworthiness, andthereby the appropriate sentence:

From the perspective of moral culpability, Mr. Isadore consumed al-cohol voluntarily and must be held accountable for the events thatensued from that voluntary action. On the other hand, such was hisenvironment and in the absence of supports, his destiny. In my view,therefore, his overall moral culpability is much less than would bethe case for the perpetrator who has not suffered the systemic dis-crimination and cultural challenges faced by the generations of in-digenous persons of the Driftpile Cree Nations. In terms of deter-rence and denunciation, incarceration has been held to be necessary,but in this case addressing the communities’ longer term interests incrime free behavior by Mr. Isadore is also an important option whichcannot be discounted simply because of the crime committed. In thiscase, there are a number of options available to me to protect againstfuture criminal behavior apart from simply locking Mr. Isadoreaway. He has accomplished a great deal in an environment whichprovides limited programming. He is reconnecting with traditionalways, and seems motivated to deal with his addictions. Having saidall that, however, there is more that Mr. Isadore can and should do toset himself up for success upon his release from prison

(emphasis added).


b) Step Two: What types of Sentencing Sanctions are Appropriate inthe Circumstances for this particular Aboriginal offender?

87 Inasmuch as the unique systemic and backgrounds factors of this of-fender bear on his culpability for these offences, by the same measurethese factors inform us about the sentencing factors that can and shouldbe actualized.

88 Section 718.2(e) requires us to consider “all available sanctions otherthan imprisonment that are reasonable in the circumstances.” The GladueReport prepared for this matter lists several options available to the courtto address Okimaw’s past and current substance abuse and his desire toengage in culturally-based programs related to family violence and angermanagement, along with other supports for his mental and physicalhealth needs (see EKE at A36-38). These various programs and the alter-native healing methods of the Aboriginal community may assist Okimawin furthering his goals of addressing his substance abuse issues, findinghealthy ways to deal with conflict, and engaging in positive and safe re-lationships in the future.

89 While these programs may respond to the needs, experiences, andperspective of Okimaw, they will not effectively achieve the necessarysentencing objectives of denunciation and deterrence, which remain par-amount in this particular case. Nor will these programs provide meaning-ful acknowledgement of the harm done to the victim and to the commu-nity at large. In light of society’s need to sharply and categoricallycondemn violent knife attacks, a period of incarceration is warranted.However, his incarceration should in no way prevent Okimaw from re-ceiving the benefit of those programs and treatments.

90 Although denunciation and deterrence remain paramount in this case,those sentencing objectives cannot be allowed to obliterate and rendernugatory or impotent other relevant sentencing objectives. Instead, thoseobjectives must be carefully, and mercifully, balanced with the sentenc-ing objectives of restraint and rehabilitation, after giving adequate andproper attention to Gladue factors. The constellation of factors in thiscase justify a lesser period of incarceration, but one that will still havethe desired effect of achieving denunciation and both specific and gen-eral deterrence.

Disposition91 We have considered all sentencing objectives, including denunciation

and deterrence and section 718.2(e), and we have given attention to


Gladue factors as they relate to Okimaw’s culpability and as they informthe sentencing objectives which can and should be actualized. We havealso considered the other issues raised on this appeal and dealt with inthese reasons.

92 We note Okimaw’s acceptance of responsibility, remorse and post-offence and pre-sentencing rehabilitation efforts, together with his indivi-dual circumstances.

93 While a sentence of 30 months may have been appropriate for an of-fender who has not suffered the personal difficulties, systemic discrimi-nation, and cultural challenges faced by Okimaw, a lesser sentence iscalled for in light of his reduced moral culpability as discussed above.Given his lessened moral blameworthiness, a demonstrably fit sentencerequires this Aboriginal offender to serve 21 months in custody, reducedby the 7.5 months credit he originally received for time served pre-sen-tence. He is also entitled to any statutory remission available for timeserved post-sentence.

94 To encourage Mr. Okimaw to continue embracing a pro-social lifes-tyle, his probation order will not be disturbed. Mr. Okimaw may applyunder the Criminal Code if he wishes to alter his probation conditions.

95 All mandatory collateral orders will remain unchanged.

Conclusion96 For the reasons above, we allow Frank James Okimaw’s appeal.97 To the extent that this decision amends the sentence for this particular

Aboriginal offender for these particular offences, it has minimal prece-dential value. Our hope, however, is that these reasons may succeed inproviding a useful roadmap to sentencing judges when crafting a sen-tence for an Aboriginal offender.

Appeal allowed; sentence varied.

Gladue Reports: Some Issues and Proposals 405

Gladue Reports: Some Issues and Proposals

Tim Quigley*

In 1995, Parliament enacted s. 718.2(e) of the Criminal Code1 in an ef-fort to require judges to consider alternatives to imprisonment for all of-fenders but also to require particular consideration to the circumstancesof Aboriginal offenders. The latter aspect was and, perhaps still is, con-troversial in some quarters. Nevertheless, the persistent overrepresenta-tion of indigenous peoples in Canada’s prisons is a matter of record. De-spite being only 3% of the Canadian population, Aboriginal peopleaccount for 25% of the prison population across the country.2 The situa-tion is even worse in the western provinces and territories.

It was therefore small wonder that the Supreme Court of Canada hastried valiantly to encourage, indeed, require, the judiciary to do its part todeal with this horrible state of affairs, a sad legacy of the colonialism,mistreatment, and neglect that this rather small segment of our popula-tion has experienced. In R. v. Gladue,3 the Court interpreted section718.2 to require courts for every Aboriginal offender to, first, determinethe systemic or background factors that contributed to the offending be-haviour and, second, to consider procedures (including restorative justiceprocedures) and sanctions that might be appropriate. Undoubtedly be-cause the problem of disproportionate imprisonment of AboriginalCanadians continued to become worse, the Court reiterated in R. v.

* College of Law, University of Saskatchewan. The genesis of this article wasan email conversation involving James Scott, Benjamin Ralston, Craig Goebel,Christine Goodwin, Amanda Dodge, Glen Luther, and me. I am indebted tothem for stimulating the discussion and, in particular, to Benjamin Ralston andCraig Goebel for suggestions for revisions. In addition, I am especially gratefulfor information and several important suggestions provided by Jonathan Rudinof Aboriginal Legal Services and for information provided by Cunliffe Barnett.1 S.C. 1995, c. 22, s. 6, amending R.S.C. 1985, c. C-46.2 J. Reitano, Adult Correctional Services in Canada, 2014/2015 (Ottawa: Statis-tics Canada, 2016).3 (1999), 23 C.R. (5th) 197 (S.C.C.).


Ipeelee4 that these are mandatory steps that must be taken in every caseinvolving an indigenous person.

The Supreme Court said little about exactly how these two steps shouldbe addressed. However, in trying to meet these requirements, most prov-inces and territories have, in varying degrees, embraced the concept ofwhat have come to be called Gladue reports in which the author attemptsto provide background information about the offender’s family, commu-nity, and history in order to provide a context for the criminal behaviourin question. Nevertheless, some issues remain about Gladue reports: Bywhat legal authority are they to be ordered? Who should prepare aGladue report? Is a Gladue section in a standard pre-sentence report suf-ficient? It is these questions that I wish to address in this short piece.

A preliminary point, however, is the importance of having a Gladue re-port, not only to inform the sentencing judge of the relevant factors butalso to facilitate appellate review where necessary. In Ipeelee, the Courtheld that a failure on the part of a sentencing judge to properly considerGladue factors is a reversible error in the sense that it is a failure to as-sess the moral blameworthiness of the offender. A recent and vivid ex-ample occurred in R. v. Okimaw,5 a decision of the Alberta Court of Ap-peal. In allowing the accused’s sentence appeal, the Court held that thesentencing judge had erred in criticizing the Gladue report for itself notassessing the accused’s moral blameworthiness. The Court held that theassessment of moral blameworthiness, as an element of proportionality,was a matter to be determined by the judge, not the author of the report.The Court went on to find other matters in which the sentencing judgehad erred. However, had the Gladue report not provided comprehensivedetails about the accused, his First Nation’s and family history, and hisvarious disabilities, it is unlikely that the Court would have reduced thesentence. From the premise that more information is better than less, itshould be obvious that having Gladue reports for all Aboriginal accusedwho do not waive the consideration of s. 718.2(e) is a requirement fordetermining a proportionate sentence.6

4 (2012), 91 C.R. (6th) 1 (S.C.C.).5 Reported above at p. 405.6 This point has been made more forcefully and comprehensively by JonathanRudin, “Aboriginal Over-representation and R. v. Gladue: Where We Were,


Unfortunately, there is currently no explicit legal authority in the Crimi-nal Code for judges to order Gladue reports. Indeed, s. 721 of the Codedoes not even explicitly refer to pre-sentence reports:

721. (1) Subject to regulations made under subsection (2), where anaccused, other than an organization, pleads guilty to or is foundguilty of an offence, a probation officer shall, if required to do so bya court, prepare and file with the court a report in writing relating tothe accused for the purpose of assisting the court in imposing a sen-tence or in determining whether the accused should be dischargedunder section 730.

(2) The lieutenant governor in council of a province may make regu-lations respecting the types of offences for which a court may requirea report, and respecting the content and form of the report.

(3) Unless otherwise specified by the court, the report must, wher-ever possible, contain information on the following matters:

(a) the offender’s age, maturity, character, behaviour, attitudeand willingness to make amends;

(b) subject to subsection 119(2) of the Youth Criminal JusticeAct, the history of previous dispositions under the Young Of-fenders Act, chapter Y-1 of the Revised Statutes of Canada,1985, the history of previous sentences under the Youth Crim-inal Justice Act, and of previous findings of guilt under thisAct and any other Act of Parliament;

(c) the history of any alternative measures used to deal withthe offender, and the offender’s response to those measures;and

(d) any matter required, by any regulation made under sub-section (2), to be included in the report.

(4) The report must also contain information on any other matter re-quired by the court, after hearing argument from the prosecutor andthe offender, to be included in the report, subject to any contrary reg-ulation made under subsection (2).

(5) The clerk of the court shall provide a copy of the report, as soonas practicable after filing, to the offender or counsel for the offender,as directed by the court, and to the prosecutor.

Where We Are and Where We Might Be Going” (2008), 40 S.C.L.R. (2d) 687,at paras. 47–57.


The language of the section is broad enough to encompass the Gladuerequirements and such other matters as risk assessments, psychologicalassessments, FASD assessments, etc.7 However, in the case of Gladuereports, there are sound reasons why they should not simply be a Gladuecomponent of a pre-sentence report. Not all probation officers will havethe training or experience to prepare a thorough report. Having a thor-ough understanding of and sensitivity to what was described in Ipeelee as“the history of colonialism, displacement, and residential schools”8

surely must be a requirement for the author of such a report. Related tothat is the role that the Canadian state has played in that sorry history.Although the federal government has the constitutional responsibility forAboriginal people, the provinces also have played a role in the ongoingsystemic discrimination faced by indigenous peoples; to have an agent ofthe colonizer prepare a report on the effects of colonialism is particularlyinapt in the context of depriving someone of liberty. At the very least, theappearance of justice is tainted if the only source of Gladue factors arisesfrom a pre-sentence report.

Furthermore, as Kelly Hannah-Moffat and Paula Maurutto have argued,9

the focus in pre-sentence reports today has shifted in large degree to riskassessment. Indeed, many jurisdictions, such as Saskatchewan, have be-gun training probation officers in the use of risk assessment tools, theresults of which are incorporated into pre-sentence reports.10 Unfortu-nately, there is at least some evidence that risk assessments are culturallybiased and therefore inappropriate for assessing the risk posed by Ab-original offenders.11 Even if that were not an issue, the purposes of pre-

7 Ss. (4) may permit a court to order more information but this will still be in theform of a pre-sentence report. Similarly, an appellate court may exercise thesame power when dealing with a sentence appeal: R. v. Kakekagamick, 2006CarswellOnt 2172 (Ont. C.A.) and R. v. Kakekagamick (2006), 40 C.R. (6th)383 (Ont. C.A.), at para. 62.8 Supra, note 4, at para. 60.9 “Re-contextualizing pre-sentence reports: Risk and Race,” (2010), 12 Punish-ment and Society 262.10 D.P. Cole & G. Angus, “Using Pre-Sentence Reports to Evaluate and Re-spond to Risk” (2003), 47 C.L.Q. 302; R. v. D. (B.H.), 2006 CarswellSask 322(Sask. Prov. Ct.).11 See, e.g.: R. v. Gardner, 2016 ONCJ 45 (Ont. C.J.); N. Jackson, “The Sub-stantive Application of Gladue in Dangerous Offender Proceedings: Reassessing


sentence reports directed to risk assessment and the purposes of a Gladuereport are very different. Rather than assessing future risk, a Gladue re-port seeks to examine the past — the systemic and background factorsthat may have played a role in the present offender coming before thecourts. In consequence, it is not appropriate to attempt to simply includean examination of Gladue factors within a document prepared for an en-tirely different purpose.

It is true that the Supreme Court likened Gladue reports to pre-sentencereports:

Counsel have a duty to bring that individualized information beforethe court in every case, unless the offender expressly waives his rightto have it considered. In current practice, it appears that case-specificinformation is often brought before the court by way of a Gladuereport, which is a form of pre-sentence report tailored to the specificcircumstances of Aboriginal offenders. Bringing such information tothe attention of the judge in a comprehensive and timely manner ishelpful to all parties at a sentencing hearing for an Aboriginal of-fender, as it is indispensable to a judge in fulfilling his duties under s.718.2(e) of the Criminal Code.12

However, this was in the context of making clear the mandatory natureof providing Gladue information and that is the responsibility of the par-ties to do so. It should not be taken as suggesting that Gladue information in a pre-sentence report should supplant the need for a separate and addi-tional report.

In addition, there are other issues that point in the direction of requiringan outside party for the preparation of Gladue reports and for a strongpreference in favour of having the preparation done by a qualified Ab-original person. An adequate report must delve into sensitive backgroundissues that were experienced not just by the accused but by members ofher or his family and community. A reticence to speak of matters such assexual abuse, violence, family separation, and substance abuse issues isan unfortunate but understandable state for many people. There is agreater likelihood that people with critical information about such mat-ters will open up if the interviewer is not a government employee. If the

Risk and Rehabilitation for Aboriginal Offenders” (2016), 20 Can. Crim. L.Rev. 77.12 Supra, note 4, at para. 60.


interviewer is of Aboriginal descent and, perhaps, able to speak the in-digenous language of the interviewees, so much the better. These areamong the reasons that Aboriginal Legal Services, which prepares manyof the Gladue reports in Ontario, employs legally-trained Aboriginal stafffor the preparation of these reports.

It is difficult to ascertain how the preparation of Gladue reports is takingplace across the country. My major source of information, for which I amgrateful, has been Jonathan Rudin, Program Director of Aboriginal LegalServices (ALS). That organization is the main organization in Ontario,although some other Aboriginal organizations also prepare such reports.In the case of Aboriginal Legal Services, the cost of preparing the reportsis covered through funding agreements that the organization has negoti-ated. ALS retains the right to refuse a request for a report if it does nothave the resources to prepare it. It would appear that there is a fair degreeof support from the province and the judiciary for preparing Gladue re-ports in this manner.

In three other provinces, there is a similar approach to that in Ontario. InPrince Edward Island, the Mi’kmaq Confederacy of Prince Edward Is-land prepares the reports under a verbal agreement with the provincialgovernment.13 In Nova Scotia, the reports are prepared by the Mi’KmaqLegal Services Network, while in Quebec, they are prepared by SPAQ,the Quebec Aboriginal Courtworkers Program. Although I have no infor-mation on the nature of any agreement between the organizations and theprovinces in the latter two cases, it is likely similar to what takes place inOntario and Prince Edward Island.

Alberta assigns the work of preparing Gladue reports to writers withwhom it contracts. To the extent that these reports are done in Saskatche-wan, it is also done in this fashion. While the Legal Aid Commission hasover the past couple of years taken a lead role in having some compre-hensive, written Gladue reports prepared for sentencing young Aborigi-nal offenders, it is not entirely clear what the future will be in this regard.Finding potential writers of Aboriginal ethnicity, training them and ac-quiring funding to pay them enough to keep them doing the hard workrequired to produce useful material for the client are endeavours that arereally outside the purview of Legal Aid. Nevertheless, the Legal AidCommission has started a process that should be continued in some way.

13 R. v. Legere, 2016 PECA 7 (P.E.I. C.A.).


It also appears that in some cases the reports have been “ordered” orrequested by the Court of Queen’s Bench, presumably under the inherentjurisdiction of the court,14 a topic which I shall address below.

The process in British Columbia is set out in R. v. McCook:15

[61] In British Columbia funding for the preparation of Gladue Re-ports is provided through the Law Foundation to the Legal ServicesSociety (LSS) who administers the funds.16

[62] According to the LSS, a judge cannot technically “order” thatthey create a Gladue Report. It is their position that a judge can orderthat there be a Gladue section of a Presentence Report, but if a judgeorders a Gladue Report, LSS is under no obligation to provide it.Defence counsel must still apply for funding for a report, and theymaintain the discretion to reject any requests.

[63] The LSS considers a number of factors when allocating fundsfor Gladue reports. Priority is given to cases in which the client:

a) is a youth,

b) has a lengthy record,

c) faces an indictable charge (excluding first degree murder),

d) faces a federal prison sentence,

e) has mental health, addiction and/or FASD issues,

f) is an Indian residential school survivor or former fosterchild,

14 There has been a pilot project in this regard in Regina. In R. v. Drysdale,2016 SKQB 312 (Sask. Q.B.), a Gladue report greatly assisted the sentencingjudge in dealing with an accused with both extreme Gladue factors and FASD.15 2015 BCPC 1, B.C. Prov. Ct., at paras. 61–64.16 Evidently, the provincial government does not contribute in any manner andis content for the situation to remain that way. See also: R. v. Smith, 2013 BCCA173 (B.C. C.A.) (in which essentially little was said about the fact that the sen-tencing judge purported to order a Gladue report was ignored); R. v. Lindley,Kelowna Provincial Court #75466-1-K (in which the province refused to payand was successful in having the order rescinded); R. v. Bill, 2014 BCCA 60(B.C. C.A.) (in which the province prevailed upon the LSS to provide a report,perhaps to avoid litigating the issue of whether there is a power to order a re-port); R. v. R. (H.G.), 2015 BCSC 681 (B.C. S.C.) (in which the issue wasducked). My thanks to Cunliffe Barnett for providing this information.


g) has community and family support,

h) has a bail hearing.

[64] Requests may not be approved if the client resides outside a 200km radius for in-person interviews. This is designed to avoid LSSincurring excessive travel expense, it is subject to exceptional cir-cumstances and budget availability.

Nevertheless, the Court in McCook was highly critical of this process:

[77] With respect, the present process of having LSS act as a “gate-keeper” is unacceptable. It clearly interferes with the Court’s and in-dividual Judge’s independence in the sentencing process by subject-ing those persons who are the most adversely affected by thesystemic negative impact of the criminal justice system (Aboriginalpeople) to further potential negative impacts through the actions of abureaucracy that is fiscally constrained in how it decides whether areport of the importance of a Gladue report is prepared.

[78] It is imperative that the Provincial Government give earnest con-sideration to re-examining the present procedures for obtainingGladue reports and provide the appropriate and adequate funding toallow the Court to properly carry out its duty in the sentencing ofAboriginal offenders as mandated by the Supreme Court of Canada.The Court and offenders should not be relegated to going “cap inhand” to obtain the pertinent, detailed and specific information vitalto the appropriate sentencing of Aboriginal offenders.17

I have no information about how Gladue reports are prepared in the otherprovinces and territories. In short, the process across the country is apatchwork quilt.

One point is, however, quite clear: that, because there is no explicit pro-vision in the Criminal Code, a court may not simply order a Gladue re-port in the same way that section 721 permits the ordering of a pre-sen-tence report. The dilemma is that the Supreme Court has held that it ismandatory to consider Gladue factors, yet the preparation of that infor-mation is handled in a haphazard fashion that is highly dependent onfunding being made available, presumably by the provinces under theirjurisdiction over the administration of justice. In these circumstances, itis highly probable that, in at least some cases, the necessary informationis not being brought forward. Appellate courts have reversed sentencing

17 Ibid., at paras. 77-78.


decisions because of insufficient attention to Gladue factors, Ipeelee be-ing a good example.18 There may also be cases where courts refuse torequest a report because there is no agency to prepare one or because theprosecution opposes the request because there is no funding available.

There is a constitutional separation of powers issue that may preventjudges from simply ordering a Gladue report if its preparation is depen-dent on the province (or federal government in the case of a federallyprosecuted offence) providing the necessary funding. It has been heldthat, outside of providing a Charter remedy, the judiciary may not requirethe legislative or executive branches of government to expend publicfunds.19 This is so even if the court in question is a superior court pur-porting to act under its inherent jurisdiction.

In R. v. K. (L.E.),20 the Court held that, although a youth court judge hasthe authority to order various reports, she did not have the authority todirect the province in either the administration of sanctions nor to directhow resources should be expended in administering the sanctions. How-ever, that was in the context of the Youth Criminal Justice Act21 underwhich section 34 provides much broader authority for the ordering ofassessment reports. Even there, it is not clear that it would grant the au-thority to order a Gladue report since it seems to be directed more tomedical or psychological assessments.

18 In R. v. Mattson, 2014 ABCA 178 (Alta. C.A.), the Court made it clear thatGladue information is essential to a valid sentence for an Aboriginal offender; inthat case, the information was before the Court of Appeal in the form of freshevidence on appeal.19 Doucet-Boudreau v. Nova Scotia (Department of Education), 2003 SCC 62(S.C.C.); Ontario v. Criminal Lawyers’ Association of Ontario (2013), 4 C.R.(7th) 1 (S.C.C.). In R. v. K. (L.E.), 2001 SKCA 48 (Sask. C.A.), at para. 32, theCourt held that, although a youth court judge has the authority to order variousreports, she did not have the authority to direct the province in either the admin-istration of sanctions nor to direct how resources should be expended in ad-ministering the sanctions.20 2001 SKCA 48 (Sask. C.A.), at para. 32.21 S.C. 2002, c. 1.


What then can be done if there is a failure by a province or territory tomake available the resources22 for carrying out the mandate establishedby the Supreme Court in Gladue and Ipeelee? This is a question withoutclear-cut answers.

One possibility might involve reliance on the Supreme Court of Canadadecision in R. v. Nasogaluak,23 in which the Court held that state mis-conduct might operate to reduce the sentence that might otherwise beimposed. In R. v. Knockwood,24 the sentencing judge had ordered aGladue report at a time when the province of Quebec did not have aprocess for producing such reports. (The accused was an Aboriginal wo-man living in Quebec but convicted in Ontario.) Because of delays andthe resulting unsatisfactory situation whereby a pre-sentence report witha Gladue component was used, Justice Hill applied Nasogaluak to reducethe sentence.

Another avenue might be a Charter challenge under either section 7 orsection 15. In the case of section 7, the Supreme Court of Canada hasheld that proportionality in sentencing is not a principle of fundamentaljustice.25 Therefore, to advance a claim under that section, it would benecessary to turn to other section 7 doctrines. One possibility might be anallegation of arbitrariness or its companion, gross disproportionality asthe Supreme Court has recognized in PHS Community Services Society v.Canada (Attorney General)26 and clarified in Bedford v. Canada(Attorney General).27 There could be the evidentiary issue of whether afailure to provide resources is tantamount to a refusal to do so since thedecision in PHS Community Services dealt with a clear refusal. If thathurdle could be surmounted, it is arguable that arbitrariness could be es-tablished because of the lack of a connection between the governmentalaction (the failure or refusal to provide Gladue report resources) and theresponsibility to address Gladue factors. By a similar path, it might be

22 This might result in a judge refusing to request a Gladue report, probablywhere the Crown opposes the request.23 2010 SCC 6, 72 C.R. (6th) 1 (S.C.C.).24 2012 ONSC 2238 (Ont. S.C.J.).25 R. v. Lloyd (2016), 27 C.R. (7th) 205 (S.C.C.); R. v. Safarzadeh-Markhali(2016), 27 C.R. (7th) 265 (S.C.C.)26 (2011), 86 C.R. (6th) 223 (S.C.C.).27 2013 SCC 72, 7 C.R. (7th) 1 (S.C.C.).


arguable that to fail or refuse resources is grossly disproportionate to theobjective of requiring Gladue information.

Section 15 has had a rather chequered history but the decisions in R. v.Kapp28 and Withler v. Canada (Attorney General)29 have returned theequality rights analysis to a reasonably straightforward version. The ar-gument would be relatively simple: In the absence of a thorough Gladuereport, an Aboriginal offender is discriminated against vis — a — vis asimilarly situated non-Aboriginal offender because her/his moral blame-worthiness cannot be properly determined, thus adversely affecting theassessment of what is a proportionate sentence. Some support for thisargument may come from R. v. Daybutch.30 In finding that a failure onthe part of Ontario to proclaim the curative discharge provisions in sec-tion 255(5) of the Criminal Code violates section 15, the Court at para-graph 67 quoted with approval from United States of America v. Leo-nard:

[67] To date, in relation to curative discharges, the provincial govern-ment has remained unmoved by equality concerns. The OntarioCourt of Appeal touched on these concerns in its assertion of Gladueprinciples in United States of America. v. Leonard, 2012 ONCA 622(CanLII), where Sharpe J.A. stated:

Gladue stands for the proposition that insisting that Ab-original defendants be treated as if they were exactly thesame as non-Aboriginal defendants will only perpetuatethe historical patterns of discrimination and neglect thathave produced the crisis of criminality and over-represen-tation of Aboriginals in our prisons.

The difficulty, of course, in advancing Charter challenges is that an indi-vidual claimant must assemble the evidence and resources to do so.Moreover, constitutional challenges require a considerable amount oftime to proceed through the judicial system and there is more than a littleuncertainty about the result.

There is a better way. Parliament could amend section 721 of the Crimi-nal Code and section 34 of the Youth Criminal Justice Act to make it

28 2008 SCC 41, 58 C.R. (6th) 1 (S.C.C.).29 2011 SCC 12 (S.C.C.).30 2015 ONCJ 302 (Ont. C.J.).


clear that sentencing judges have the authority to order Gladue reports.31

A statutory amendment should make it clear that the reports should beprepared by individuals or agencies that are at arm’s length from the stateand there should be a strong preference that the preparation of the reportsbe undertaken by qualified persons of Aboriginal ancestry.32

Since Parliament has the constitutional authority with respect to all Ab-original Canadians, it would be incumbent on the federal government toaccompany statutory amendments with the provision of resources for theadministration and preparation of Gladue reports. Although provinceshave clear authority over the administration of justice, this is a situationthat requires leadership at the national level. If Canada is ever to “honourthe truth” on the way to “reconciling for the future,” we must ensure thatAboriginal Canadians are not denied the route to determining proportion-ate sentences.33 This is not to say that there are limitations to what thelegal system can achieve as was recognized in Ipeelee. Profound im-provements in housing, the provision of clean water, education, healthcare, employment and economic opportunities, and so on are urgentlyrequired. In the meantime, however, the legal system has its role to playand seeing that the circumstances of all Aboriginal offenders are givenparticular attention in its processes is a necessary part of that role.

31 It would also be helpful to amend these provisions to make it clear that FASDassessments, assessments of the viability of sentencing circles, and the like mayalso be ordered when appropriate.32 Framing this as a preference would allow for exceptions where, for whateverreason, no such qualified persons were available.33 The quoted portions refer to the title of the Final Report of the Truth andReconciliation Commission of Canada, Honouring the Truth, Reconciling forthe Future http://www.trc.ca/websites/trcinstitution/index.php?p=890

R. v. Dhaliwal 417

[Indexed as: R. v. Dhaliwal]

Her Majesty the Queen (Respondent) and Bickramjit Dhaliwal(Appellant)


Docket: CA C53286

2016 ONCA 652

G.R. Strathy C.J.O., S.E. Pepall, C.W. Hourigan JJ.A.

Heard: May 31, 2016


Evidence –––– Examination of witnesses — Cross-examination — Improperquestions –––– Crown counsel improperly questioning accused as to theory ofcase and cross-examining key witness by alluding to telephone call he made incourtroom without advance disclosure to defence counsel.

Evidence –––– Hearsay — General principles –––– Crown counsel — Wronglyintroducing hearsay and putting his own credibility in issue.

The accused was charged with possession of guns and drugs and for public mis-chief. The context was a family feud over infidelity and dishonour arising froman alleged affair between the accused’s sister B and his niece’s husband P. TheCrown’s theory was that the accused had either planted or arranged to plant agun and cocaine in his nephew R’s car and another gun and cocaine in R’s houseand had then made an anonymous telephone call to police to get R and Pcharged with possession of the guns and drugs. The accused denied havingplanted the guns and drugs. He testified that B had warned him that R had a gunand was coming after both of them. He called police because he was concernedfor his own safety. He made the call anonymously from a pay phone because hedid not want the family involved. The accused was convicted.

He appealed alleging Crown misconduct in the cross-examination of D and Band seeking to bring fresh evidence as to that conduct.

Held: Fresh evidence was admitted; the appeal was allowed and a new trialordered.

The conduct of the Crown counsel at trial had deprived the accused of a fairtrial.

Crown cross-examination of the accused

During the Crown’s cross-examination of the accused and over a defence objec-tion, the trial judge permitted the Crown to cross-examine the accused on his“theory” of the case.


This line of questioning was improper and should not have been permitted. It putan onus on D to explain the allegations against him. Asking him, in front of thejury to provide his “theory” of the case or to explain the evidence against himundermined the presumption of innocence. Permitting the Crown to ask thequestion, and requiring the accused to answer it, could only have led the jury tobelieve that he had some obligation to provide a “theory”.

Crown cross-examination of B

B was the final defence witness . She testified that P had warned her that R had agun and was coming after her and D. The next morning, during a lengthy recessbefore the cross-examination resumed, and without notice to defence counsel,Crown counsel asked the Registrar whether he could use the courtroom phone tomake a long-distance call. With the Registrar’s permission he called P, who wasin India. The call was made in the courtroom, on the court phone, using thespeaker. Crown counsel spoke in a loud voice, as though he wanted everyone inthe courtroom to hear the conversation. Both sides of the conversation were, infact, clearly audible to everyone present. The accused was in the courtroom, aswere his counsel, R (who had testified earlier) and his wife, and other observers.B, who was still under cross-examination, was not in the courtroom. P deniedmaking the phone call to B. When court resumed after the call, Crown counselcontinued his cross-examination of B. His questions focussed on matters thathad been discussed in the telephone call with P. She accepted some but not all ofthe propositions put to her by Crown counsel.

The Crown’s telephone call to P, in the courtroom with spectators present, wasimproper. So was the manner in which the Crown used the information obtainedon the phone call.

The Crown admitted on cross-examination on the fresh evidence application thathe had no intention of calling P as a witness. If he wanted to obtain informationfrom P to assist his cross-examination of B, he should have made the calloutside the courtroom and made proper disclosure to defence counsel. His evi-dence that he made the call in court for purposes of disclosure and transparencywas unconvincing when he did not even inform defence counsel in advance thathe would be making the call.

The reasonable inference was that he made the call, in public, in the courtroom,on a speaker phone, in a loud voice, so that word of P’s denials would get backto the witness, B, through one of the spectators. The telephone call to P was adeliberate ploy to influence the evidence of B, an important defence witnesswho was in the middle of cross-examination, through communications that werenot part of the court record. It was entirely improper.

It was also improper because it introduced hearsay evidence on a central issue,through the mouth of Crown counsel. The Crown acknowledged on cross-exam-ination that the jury would have understood from his questioning that he had

R. v. Dhaliwal G.R. Strathy C.J.O. 419

spoken to P. In effect, the Crown’s questions stated to the witness, and to thejury:

I spoke to P today and he told me that he had not called to warn you about Rhaving a gun and coming to get you and D.

This not only introduced hearsay to the jury, possibly serving to undermine B’stestimony, it put the Crown’s own credibility at issue.

It was impossible to say what the effect of this conduct was on the jury’s assess-ment of B’s credibility. What could be said is that it fell short of the standardexpected of the Crown.

There was a reasonable possibility that the jury’s decision to convict was influ-enced by the cross-examination of B and the introduction of hearsay through themouth of the Crown. Examined in the context of the whole trial, and taken to-gether with the improper cross-examination of the accused, the Crown’s conductwas sufficiently prejudicial that it deprived D of a fair trial.

Cases considered by G.R. Strathy C.J.O.:

R. v. Kusk (1999), 1999 CarswellAlta 98, 22 C.R. (5th) 50, 132 C.C.C. (3d) 559,232 A.R. 270, 195 W.A.C. 270, [1999] 7 W.W.R. 339, 1999 ABCA 49,[1999] A.J. No. 78 (Alta. C.A.) — followed

R. v. Logiacco (1984), 2 O.A.C. 177, 11 C.C.C. (3d) 374, 1984 CarswellOnt1162, [1984] O.J. No. 15 (Ont. C.A.) — considered

R. v. S. (W.) (1994), 29 C.R. (4th) 143, 18 O.R. (3d) 509, 90 C.C.C. (3d) 242, 70O.A.C. 370, 1994 CarswellOnt 63, [1994] O.J. No. 811 (Ont. C.A.) — re-ferred to

R. v. Vandenberghe (1995), 96 C.C.C. (3d) 371, 1995 CarswellOnt 1806, [1995]O.J. No. 243 (Ont. C.A.) — referred to

APPEAL by accused from conviction for possession of guns and drugs and forpublic mischief.

James Lockyer, for AppellantLisa Joyal, for Respondent

G.R. Strathy C.J.O. :

1 Bickramjit Dhaliwal appeals his conviction for possession of gunsand drugs and for public mischief. For the reasons that follow, it is myopinion that the conduct of the Crown (who was not counsel on the ap-peal) deprived the appellant of a fair trial. I would therefore allow theappeal and direct a new trial.

2 The relevant facts can be briefly stated. They take place in the contextof a family feud over allegations of infidelity and dishonour. The key


actors are the appellant Bickramjit Dhaliwal, his nephew Raju, his sisterBakshish and his niece’s husband Parminder. The family was dividedinto hostile camps as a result of allegations of an affair betweenParminder and Bakshish.

3 The Crown’s theory was that the appellant had either planted or ar-ranged to plant a gun and cocaine in Raju’s car and another gun andcocaine in Raju’s house. He then made an anonymous telephone call topolice to get Raju and Parminder charged with possession of the gunsand drugs. The plan was foiled, however, by Raju’s wife, who discov-ered the gun and drugs in the car and informed her husband, who thencalled police. When police played a recording of the anonymous tele-phone call, Raju identified his uncle Bickramjit’s voice and the appellantwas charged.

4 The appellant denied having planted the guns and drugs. He testifiedthat Bakshish had warned him that Raju had a gun and was coming afterboth of them. He called police because he was concerned for his ownsafety. He made the call anonymously from a pay phone because he didnot want the family involved.

5 Bakshish also testified at trial. She claimed Parminder had warned herthat Raju had a gun and was coming after her and the appellant.

6 The appellant raises several grounds of appeal and brings an applica-tion to admit fresh evidence concerning the conduct of the trial Crown.As I would allow the appeal based on the Crown’s impropercross–examination of the appellant and its conduct in the course of thecross–examination of another defence witness, I consider only thosegrounds.

The appellant’s cross–examination7 During the Crown’s cross–examination of the appellant and over a

defence objection, the trial judge permitted the Crown to cross–examinethe appellant on his “theory” of the case.

8 The Crown had asked the appellant about discussions with Bakshishconcerning Parminder’s warning and the appellant’s decision to call po-lice. The questioning continued:

Q. What’s your theory now? That [Bakshish] had this stuff plantedand got you to . . .


9 Defence counsel objected that the question was improper, because itcalled on the appellant to come up with a theory to defend himself and toidentify the guilty party.

10 The trial judge ruled that the question was proper. The Crown’s ques-tioning continued:

Q. So, sir, what do you think? Is it, did somebody else frame Rajuand, and you’re just, you’ve been sort of caught up into it, unknow-ingly, or unwittingly, is that your evidence?

A. That, that’s quite possible. See I don’t know. I am not saying Rajudid it, or who did it, I, I have no answers for that. If I did I would tellyou that.

Q. Right. You must have been pretty suspicious about [Bakshish] af-ter you found out that really this had all been planted there, right?

A. I [had] been at the, at the temple when she told me. I didn’t knowof any, any of this information.

Q. Let me begin with this. You agree with me now having seen eve-rything that this was all clearly planted on Raju, right?

A. I, this is what I heard that, that they had recovered some sort ofguns prior to my knowledge.

Q. Right, so this information about him having guns and drugs andbeing able to kill you was obviously, obviously a lie.

A. I, when I learned that was my concern, when I learned that, youknow, Parminder had called her and let her know that.

Q. You now believe that this was a lie, right?

A. I’m sorry?

Q. You now believe that this was a lie?

A. Which was a lie?

Q. That there is actually guns and Raju actually is armed and danger-ous and also is carrying drugs as well?

A. I don’t know whether that’s, I’ve never said that’s a lie. I don’tknow if that, I don’t know, in this case whether it is a lie or not be-cause the police never told me that.

Q. Well, sir, you appreciate that the guns and drugs were foundbefore you made the call, right?

A. Now I know.

Q. You know that?


A. I, I learned afterwards, but at that time we’re talking about onJanuary 2nd, or January 1st, at that time I had no knowledge ofanything.

Q. So after you got out of jail, once you had had a chance to realizewhat was actually going on here and all the evidence about how theguns actually came to be found, you must have said to [Bakshish],“Now what is the story here, why did you tell me Raju had, had gunsand was out to get me when in fact this is what’s going on?” Do youremember that heart to heart with [Bakshish]?

A. I, I talked with her and she, again she said that, that’s what, shereceived a call and that is what she told me and I’m still baffled likewhat, what occurred, and Raju were with him or at his house. I’mstill puzzled by it.

Q. So you still don’t think, so even on your evidence you do notthink [Bakshish] was, was using you to try and get Raju?

A. You know what, anything is possible, this day. I’m telling you Idon’t, I don’t know exactly what happened, who did what, but this ishow I got it, just by making a call, just informing the police of infor-mation that I received and look where I am today.

11 This line of questioning was improper. It put an onus on the appellantto explain the allegations against him: R. v. S. (W.) (1994), 18 O.R. (3d)509, 90 C.C.C. (3d) 242 (Ont. C.A.) at 252; R. v. Vandenberghe (1995),96 C.C.C. (3d) 371 (Ont. C.A.) at 373.

12 The point was made by the Alberta Court of Appeal in R. v. Kusk,1999 ABCA 49, 132 C.C.C. (3d) 559 (Alta. C.A.), at p. 564:

This mischievous cross–examination wrongly suggests that the wit-ness is advocating a certain view, indeed advocating corollaries ofthat view. See R. v. Baldwin, [1925] All E.R. Rep. 402, 18 Cr. App.R. 175 (Eng. C.A.), 178–79 (C.C.A.). That runs together the threeroles of witness, accused, and defence counsel. When the accusedtestifies, he is a witness, not an advocate. The accused may try tocooperate in answering the forbidden question, or he may vaguelyfeel that something is wrong with it, but not one lawyer in 10,000, letalone a lay person, could say on the spot what that wrong thing was:R. v. Baldwin. Here the accused vaguely saw the point, and his an-swer (quoted above) stumbled toward what the Court of CriminalAppeal said in 1925. Yet counsel and the trial judge missed the validpoint which he was groping to express, albeit incompletely. And thejury may have felt, as the Court of Criminal Appeal points out, thatinability to answer substantively indicated concealment.


13 Asking the appellant, in front of the jury to provide his “theory” ofthe case or to explain the evidence against him undermined the presump-tion of innocence. Permitting the Crown to ask the question, and requir-ing the appellant to answer it, could only have led the jury to believe thathe had some obligation to provide a “theory”. The line of questioningshould not have been permitted.

Bakshish’s cross–examination14 Bakshish was called as the final defence witness. She testified that

Parminder telephoned her at home on New Year’s Day, 2008. He toldher that Raju had guns in his house and car and was coming after her andthe appellant. Parminder urged her to tell her brother, Bickramjit, so thathe could save himself.

15 Bakshish said she then telephoned the appellant at his home. He saidhe was on his way to their temple and asked her to meet him there. At thetemple, she told him about Parminder’s telephone call and his warning.

16 Bakshish’s cross–examination was substantially completed whencourt adjourned for the day. Crown counsel indicated that he expected tocomplete his cross–examination in a “few minutes” the followingmorning.

17 The next morning, during a lengthy recess before thecross–examination resumed, and without notice to defence counsel,Crown counsel asked the Registrar whether he could use the courtroomphone to make a long–distance call. With the Registrar’s permission hecalled Parminder, who was in India. The call was made in the courtroom,on the court phone, using the speaker. Crown counsel spoke in a loudvoice, as though he wanted everyone in the courtroom to hear the con-versation. Both sides of the conversation were, in fact, clearly audible toeveryone present. The appellant was in the courtroom, as were his coun-sel, Raju (who had testified earlier) and his wife, and other observers.Bakshish, who was still under cross–examination, was not in thecourtroom.

18 The Crown asked Parminder whether he had telephoned Bakshish onJanuary 1, 2008, to warn her that Raju had guns and drugs in his car andhis home, and that Raju was coming after her and the appellant.Parminder said that he had not made such a call. The Crown also askedParminder whether he had kept in touch with Bakshish prior to the al-leged call, and he replied that he had not. The call also touched on othermatters that were at issue in the trial.


19 When court resumed after the call, Crown counsel continued hiscross–examination of Bakshish. His questions focussed on matters thathad been discussed in the telephone call with Parminder. She acceptedsome but not all of the propositions put to her by Crown counsel.

20 The Crown then asked the following questions and Bakshish gave thefollowing answers:

Q. Okay, fair enough. Now I take it it has gone back to you by nowthat I have spoken to Parminder, are you aware of that fact?

A. When?

Q. Today. Did no one tell you I was speaking to Parminder today?

A. No.

Q. I made no secret of it. You are not aware of that?

A. No.

Q. Okay. I’m going to suggest to you that you have not spoken toParminder once since he recorded you from his office at the MountSinai Medical Centre [in 2004], do you agree with that or not?

A. No, it’s not true.

Q. All right, and this is the end, ma’am.

A. But, but he had said to me, don’t tell, don’t take my name, and if,if you tell I am going to refuse. He doesn’t want the family to findout.

21 In my view, the Crown’s telephone call to Parminder, in the court-room with spectators present, was improper. So was the manner in whichthe Crown used the information obtained on the phone call.

22 The Crown admitted on cross–examination on the fresh evidence ap-plication that he had no intention of calling Parminder as a witness. If hewanted to obtain information from Parminder to assist hiscross–examination of Bakshish, he should have made the call outside thecourtroom and made proper disclosure to defence counsel. His evidencethat he made the call in court for purposes of disclosure and transparencyis unconvincing when he did not even inform defence counsel in advancethat he would be making the call.

23 The reasonable inference is that he made the call, in public, in thecourtroom, on a speaker phone, in a loud voice, so that word ofParminder’s denials would get back to the witness, Bakshish, throughone of the spectators. This is a clear inference from the Crown’s questionto Bakshish, “Did no one tell you I was speaking to Parminder today . . .I made no secret of it.”


24 The Crown admitted on cross–examination that the possibility of theconversation getting back to Bakshish may have been in his mind whenhe made the call in the courtroom. His questions to the witness oncross–examination lead to the strong inference that it was his intention.

25 I conclude the telephone call to Parminder was a deliberate ploy toinfluence the evidence of Bakshish, an important defence witness whowas in the middle of cross–examination, through communications thatwere not part of the court record. It was entirely improper.

26 It was also improper because it introduced hearsay evidence on a cen-tral issue, through the mouth of Crown counsel. The Crown acknowl-edged on cross–examination that the jury would have understood fromhis questioning that he had spoken to Parminder.

27 In effect, the Crown’s questions stated to the witness, and to the jury:I spoke to Parminder today and he told me that he had not called towarn you about Raju having a gun and coming to get you andBickramjit.

28 This not only introduced hearsay to the jury, possibly serving to un-dermine Bakshish’s testimony, it put the Crown’s own credibility atissue.

29 It is impossible to say what the effect of this conduct was on thejury’s assessment of Bakshish’s credibility. What can be said is that itfell short of the standard expected of the Crown.

30 In R. v. Logiacco (1984), 11 C.C.C. (3d) 374 (Ont. C.A.), Cory J.A.said the following about the role of Crown counsel at pp. 378–79:

It has been said before but perhaps it should be repeated that the roleof the Crown attorney in the administration of justice is of criticalimportance to the courts and to the community. The Crown prosecu-tor must proceed courageously in the face of threats and attempts atintimidation. He must see that all matters deserving of prosecutionare brought to trial and prosecuted with diligence and dispatch. Hemust be industrious to ensure that all the arduous preparation hasbeen completed before the matter is brought before the court. Hemust be of absolute integrity, above all suspicion of unfair compro-mise or favouritism. The Crown prosecutor must be a symbol of fair-ness, prompt to make all reasonable disclosures and yet scrupulous inattention to the welfare and safety of witnesses. Much is expected ofthe Crown prosecutor by the courts. The community looks upon theCrown prosecutor as a symbol of authority and as a spokesman forthe community in criminal matters.


31 It may well be that through inexperience or overzealousness or boththe Crown “momentarily lost sight of his obligations”, in the words ofCory J. in Logiancco at p. 379.

32 In my view, however, there was a reasonable possibility that thejury’s decision to convict the appellant was influenced by thecross–examination of Backshish and the introduction of hearsay throughthe mouth of the Crown. Examined in the context of the whole trial, andtaken together with the improper cross–examination of the appellant, theCrown’s conduct was sufficiently prejudicial that it deprived the appel-lant of a fair trial.

33 For these reasons, I would admit the fresh evidence, allow the appealand direct a new trial.

S.E. Pepall J.A. :

I agree.

C.W. Hourigan J.A. :

I agree.

Appeal allowed; New trial ordered.

R. v. Mercer 427

[Indexed as: R. v. Mercer]

HER MAJESTY THE QUEEN v. JOHN RUSSELL MERCER

Nova Scotia Provincial Court

Docket: 2906851

2016 NSPC 48

Brian Williston Prov. J.


Charter of Rights and Freedoms –––– Life, liberty and security of person [s.7] — Abuse of process –––– Police public shaming of accused charged with at-tempting to obtain sexual services for consideration under new prostitution lawnot constituting abuse of process.

The accused was charged with attempting to obtain sexual services for consider-ation. In a pre-trial Charter motion, he challenged the conduct of the police asan abuse of process in contravention of his s. 7 rights. The accused was arrestedin a “john sweep” of 27 men who were alleged to have attempted to buy sexfrom undercover officers posing as street prostitutes. The operation was initiatedafter police learned that there were a number of women, mostly Aboriginal, be-ing prostituted on the streets of Sydney. Many of the women were battling ad-dictions and subjected to violence by pimps. In addition to trying to help thewomen find social services, the police decided to focus enforcement on the ap-proximately 50 men they knew to be purchasing these women, despite priorwarnings that this conduct was illegal. After the arrests, the police held a pressconference in which they announced the names, ages and places of residence ofthe men arrested.

Held: The application for a stay of proceedings was dismissed.

He noted that there are two kinds of abuse of process claims: those that suggestthat the trial itself could be rendered unfair by the police conduct and thosewhich claim that the police conduct brings the administration of justice into dis-repute. In this latter category, the question is whether police actions contravenenotions of decency or fair play such that proceeding to trial would harm theintegrity of the justice system.

The accused was relying on the second category of abuse of process. He pointedto the use of undercover police officers to deal with a small social problem, aswell as the “public shaming” from the press conference.

The new Criminal Code legislation on prostitution takes the approach that pros-titution is more than a simple nuisance to be moved to another area and that thefocus of enforcement should be on the buyers and pimps. It was important to


note that this was not a claim of entrapment – such a finding could only be madeafter it was determined that the accused was guilty of the offence. The policecould not use the women in prostitution themselves since they feared violencefrom their pimps. The use of undercover officers, along with offers of servicesto the women, was encouraging and did not amount to an abuse of process.

Comment

Mercer is one of the first cases to consider the enforcement of the offence ofobtaining sexual services for consideration, which came into force in December2014. This offence is part of a number of amendments enacted following theSupreme Court decision in Bedford, which invalidated many of the prior of-fences dealing with prostitution and pimping as contrary to s. 7 of the Charter.One of the main considerations in Bedford was the effect on prostitutes, who aremostly women, of subjecting them to criminal punishment. The Supreme Courtdid not accept that the laws criminalizing street prostitutes had a legislative pur-pose more significant than the prevention of social nuisance.

The new laws represent a paradigm shift in thinking about prostitution. Prosti-tutes themselves are mostly decriminalized, subject to some residual criminal-ization for soliciting near schools and playgrounds. Purchasing or attempting topurchase sexual services, by contrast, is criminalized outright in any location,and this new offence has been classified as an offence against the person. Thelegislative objectives include recognition that prostitution is a form of exploita-tion linked to the inequality of women and girls.

These important objectives favour the law’s enforcement against buyers, but thatdoes not mean that there are no limits on police conduct. As with other of-fences, police conduct must not be so unfair as to bring the administration ofjustice into disrepute. Here the police deployed undercover officers as part of acomprehensive plan to support the women being exploited and to avoid furtherharm to them. The publication of the arrests was a valid part of this scheme inthat it put other prospective offenders on notice that the law was being enforcedto target the demand for prostitution.

Janine Benedet

Allard School of Law, University of British Columbia

Cases considered by Brian Williston Prov. J.:

Bedford v. Canada (Attorney General) (2013), 2013 SCC 72, 2013 CarswellOnt17681, 2013 CarswellOnt 17682, [2013] S.C.J. No. 72, 303 C.C.C. (3d) 146,366 D.L.R. (4th) 237, 7 C.R. (7th) 1, 312 O.A.C. 53, 452 N.R. 1, (sub nom.Canada (Attorney General) v. Bedford) [2013] 3 S.C.R. 1101, (sub nom.Canada (Attorney General) v. Bedford) 297 C.R.R. (2d) 334, 128 O.R. (3d)385 (note) (S.C.C.) — considered

R. v. Mercer 429

R. c. Piccirilli (2014), 2014 SCC 16, 2014 CarswellQue 575, 2014 CarswellQue576, [2014] S.C.J. No. 16, 367 D.L.R. (4th) 575, (sub nom. R. v. Babos) 8C.R. (7th) 1, (sub nom. R. v. Babos) 454 N.R. 86, 308 C.C.C. (3d) 445, 2014CSC 16, (sub nom. R. v. Babos) [2014] 1 S.C.R. 309, (sub nom. R. v. Babos)300 C.R.R. (2d) 153 (S.C.C.) — referred to

R. v. Imoro (2010), 2010 ONCA 122, 2010 CarswellOnt 771, 251 C.C.C. (3d)131, 72 C.R. (6th) 292, [2010] O.J. No. 586, 207 C.R.R. (2d) 146, 264O.A.C. 362, 328 D.L.R. (4th) 128 (Ont. C.A.) — considered

R. v. Mack (1988), [1989] 1 W.W.R. 577, [1988] 2 S.C.R. 903, 90 N.R. 173, 67C.R. (3d) 1, 37 C.R.R. 277, 44 C.C.C. (3d) 513, 1988 CarswellBC 701, 1988CarswellBC 767, [1988] S.C.J. No. 91 (S.C.C.) — considered

R. v. Nixon (2011), 2011 SCC 34, 2011 CarswellAlta 988, 2011 CarswellAlta989, [2011] S.C.J. No. 34, 41 Alta. L.R. (5th) 221, [2011] 7 W.W.R. 429, 13M.V.R. (6th) 1, 417 N.R. 274, 85 C.R. (6th) 1, 271 C.C.C. (3d) 36, 502 A.R.18, 517 W.A.C. 18, 335 D.L.R. (4th) 565, 237 C.R.R. (2d) 333, [2011] 2S.C.R. 566 (S.C.C.) — referred to

R. v. O’Connor (1995), [1996] 2 W.W.R. 153, [1995] 4 S.C.R. 411, 44 C.R.(4th) 1, 103 C.C.C. (3d) 1, 130 D.L.R. (4th) 235, 191 N.R. 1, 68 B.C.A.C. 1,112 W.A.C. 1, 33 C.R.R. (2d) 1, 1995 CarswellBC 1098, 1995 CarswellBC1151, [1995] S.C.J. No. 98, EYB 1995-67073 (S.C.C.) — considered

R. v. Regan (2002), 2002 SCC 12, 2002 CarswellNS 61, 2002 CarswellNS 62,161 C.C.C. (3d) 97, 209 D.L.R. (4th) 41, 282 N.R. 1, 49 C.R. (5th) 1, [2002]S.C.J. No. 14, 201 N.S.R. (2d) 63, 629 A.P.R. 63, 91 C.R.R. (2d) 51, [2002]1 S.C.R. 297, REJB 2002-27926 (S.C.C.) — considered

R. v. Riley (2001), 2001 BCSC 1407, 2001 CarswellBC 2535, [2001] B.C.J. No.2398 (B.C. S.C.) — considered



Generally — referred tos. 1 — considereds. 2(b) — considereds. 7 — considereds. 24(1) — considered

Criminal Code, R.S.C. 1985, c. C-46Generally — referred tos. 286.1 [en. 2014, c. 25, s. 20] — considereds. 286.1(1) [en. 2014, c. 25, s. 20] — considereds. 286.1(1)(b)(ii) [en. 2014, c. 25, s. 20] — consideredss. 286.1-286.5 [en. 2014, c. 25, s. 20] — referred to

Motor Vehicle Act, R.S.N.S. 1989, c. 293Generally — referred to


Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25Generally — referred to

APPLICATION by accused for stay of proceedings based on alleged abuse ofprocess by police service.

Andre Arseneau, for CrownT.J. McKeough, Nash Brogan, for Defence

Brian Williston Prov. J.:

1 The accused is charged in an information sworn on the 8th of Sep-tember, 2015, that he did:

On or about the 26th day of August, 2015, at or near Cape BretonRegional Municipality, Nova Scotia, communicate with ConstableAshley MacDonald for the purpose of obtaining, for consideration,the sexual services of Constable Ashley MacDonald, contrary to s.286.1(1) of the Criminal Code of Canada.

CHARTER ISSUE:2 The accused has applied to this Court for a determination that the

actions of the Cape Breton Regional Police Service, in using a policeofficer to pose as a prostitute to enforce section 286.1(1) of the CriminalCode and in holding a press conference announcing the names, ages andplaces of residence of those charged, constitutes an abuse of the criminaljustice process which infringed his rights under s. 7 of the Charter ofRights and Freedoms.

3 Furthermore, the accused asks, if it is determined that there was aninfringement of his rights under s. 7 of the Charter, that the proceedingsagainst him be stayed pursuant to s. 24(1) of the Charter.

LEGISLATION:4 The applicable sections of the Charter and the Criminal Code are the

following: Canadian Charter of Rights and Freedoms:

7. Everyone has the right to life, liberty and security of the personand the right not to be deprived thereof except in accordance withthe principles of fundamental justice.

24.(1) Anyone whose rights or freedoms, as guaranteed by this Char-ter, have been infringed or denied may apply to a court of competent

R. v. Mercer Brian Williston Prov. J. 431

jurisdiction to obtain such remedy as the court considers appropriateand just in the circumstances.

Criminal Code of Canada

286.1(1) Everyone who, in any place, obtains for consideration, orcommunicates with anyone for the purpose of obtaining for consider-ation, the sexual services of a person is guilty of

(b) an offence punishable on summary conviction and lia-ble to imprisonment for a term of not more than 18months and a minimum punishment of,

(ii) in any other case,

(A) for a first offence, a fine of $500, and

(B) for each subsequent offence, a fine of$1,000.

FACTUAL BACKGROUND:5 In the spring of 2014, the Cape Breton Regional Police Service re-

ceived complaints from the Downtown Business Association that cus-tomers and tourists were being approached by sex trade workers and“johns” who thought they were sex trade workers. The police respondedby putting more uniformed officers on those streets along with plainclothes officers to try to move the activity to other locations away fromthe downtown core.

6 Sgt. Jodie Wilson, officer in charge of the Community Safety En-forcement Unit continued to monitor and gather information regardingprostitution in downtown Sydney. It was determined that the scope of theproblem was more serious than originally thought. Over time there wereupwards of thirty-seven sex trade workers and over fifty johns visitingthe downtown area. The police came to learn that many of the workerswere being subjected to violence from some of the johns as well as fromboyfriends who were “pimping” them out.

7 When Bill C-36 became law, it changed the approach of the policewho, with the realization of the potential violence from johns and pimpsnow treated the sex trade workers as “victims”. The police had not real-ized the extent of the violence the street workers had been subjected tountil they looked at their situation over time. The police felt that they hadto do something before someone was seriously injured or killed.

8 The police began “Operation John Be Gone” to deter and abolish thesex trade from the downtown area. The officers received training regard-ing human trafficking as well as methods to help the workers exit from


the sex trade. Many of those workers were seen by the police as not be-ing in that line of work by choice but by circumstances such as socio-economic conditions, childhood abuse and addictions to alcohol anddrugs.

9 The police began to focus more on helping the workers find an exitstrategy through making them aware of what was available in the localarea regarding addiction and mental health treatment. Many of thoseworkers were aboriginal. The Cape Breton Regional Police partneredwith the Royal Canadian Mounted Police in the community of Eskasonito identify support groups and “elders” in that location who could helpthose suffering with addiction and mental health issues. Some of the el-ders even accompanied the police officers when they met with aboriginalsex trade workers in the downtown area of Sydney to encourage them toget help and support for their addictions and health issues.

10 During that time period police surveillance identified vehicles and li-cence plate numbers of johns who had a history of violence. With thisinformation the police began to stop vehicles driven by these individualsto try to disrupt their transactions with the sex trade workers. During thattime, the police also laid charges under the Motor Vehicle Act againstthose individuals and other johns.

11 The police also began to give the sex trade workers as much informa-tion as they could about these potentially violent johns and did safetychecks on the workers. The police enlisted reformed former sex tradeworkers to come on patrols with them to talk to the workers. They of-fered peer counseling and introductions to the methadone treatment pro-gram to wean them from their addictions, enabling them to leave prosti-tution if they wished to do so.

12 Sgt. Jodie Wilson testified that the police were supplied with onethousand lipstick tubes from Mary K Cosmetics which they filled withnotes containing the contact information of agencies which could helpthe workers deal with their addictions and mental health. As the policedistributed these containers and began to meet with the workers, theysaw a trust begin to build between them. Sgt. Wilson and her colleaguesbegan to receive text messages and telephone calls from the workers whonow were reporting violent johns. These workers, who earlier had a dis-trust of the police, were coming to realize that these officers were therefor their support and assistance in treating them as victims and trying tokeep them safe. However, despite this new relationship with the police,


the workers would not agree to testify against the johns, expressing fearof retaliation.

13 Sgt. Wilson testified that the police came to the realization that some-thing had to be done before someone was killed or injured. As a result,Operation John Be Gone was established to deter and abolish the ongo-ing activity in the downtown area. During the eighteen months leadingup to Operation John Be Gone, the police had given the johns warningsand second chances but it was to no avail. In the opinion of the policeofficers who witnessed the increasing demand on the sex trade, it wasfelt they could no longer use a “band-aid” approach and the decision wasmade to begin the use of undercover police officers and the laying ofcharges as the best form of action to enforce Bill C-36.

14 The accused, John Russell Mercer, is one of twenty-seven accusedcharged as a result of that police action. On September 8, 2015 at a pressconference the police announced the results of Operation John Be Gonealong with the names, ages and places of residence of those individualscharged ranging in ages from 26 to 81. The accused has characterizedthis conference as a “public shaming” by the police and contends thatthis was an abuse of process. The accused, age 73, in his testimony onthe Voir Dire, stated he had never used a prostitute before. He testifiedthat as far as he was concerned it was entrapment. He told the Court thathis wife and friends found out by “word of mouth” of his being chargedby the police when it appeared in the local newspaper.

ABUSE OF PROCESS15 Section 7 of the Charter protects against two categories of abuse of

process:

(1) where prosecutorial conduct compromises the fairness of a trial(the main category) and

(2) where prosecutorial conduct “contravenes fundamental notions ofjustice and thus undermines the integrity of the judicial process”(the “residual” category): R. v. Nixon, 2011 SCC 34 (S.C.C.) atpara. 36, citing R. v. O’Connor, [1995] 4 S.C.R. 411 (S.C.C.), atpara. 73.

16 The first category of abuse of process focuses on the effect the con-duct has on the fairness of an accused’s trial. Evidence of prejudice to thefair trial of an accused is key to meeting that test. The prejudice needs tobe carried forward through the conduct of the trial, resulting in ongoing


unfairness to the accused: R. c. Piccirilli, 2014 SCC 16 (S.C.C.), at para.34.

17 Under the second category referred to as the “residual category”,prejudice to the fair trial for the accused is not required: Nixon (supra) atpara. 41.

18 The key question to be decided under this category is whether thestate has engaged in conduct that is offensive to societal notions of fairplay and decency and whether proceeding with a trial in the face of thatconduct would be harmful to the integrity of the justice system. R. c.Piccirilli (supra) at para. 35.

19 It is well established that police conduct may, under a subsequentcriminal prosecution, be an abuse of process. This may occur where theconduct renders the trial itself unfair or if it is so offensive to communitynotions of fairness and decency that it compels the Court to refuse tolend its processes to a prosecution resulting from such conduct. R. v. Re-gan (2002), 161 C.C.C. (3d) 97 (S.C.C.) at 120-122; R. v. O’Connor,supra.

20 In this present case, the accused has not argued that the police con-duct affected his ability to get a fair trial. However, he has strenuouslyargued that the police conduct was so contrary to community notions offairness and decency to render any trial an abuse of the Court’s process.

21 In R. v. O’Connor, supra, at para. 73, L. Heureaux-Dube J., held thatsuch claims are properly considered under s. 7 of the Charter:

...In addition, there is a residual category of conduct caught by s. 7of the Charter. This residual category does not relate to conduct af-fecting the fairness of the trial or impairing other procedural rightsenumerated in the Charter, but instead addresses the panoply of di-verse and sometimes unforeseeable circumstances in which a prose-cution is conducted in such a manner as to connote unfairness orvexatiousness of such a degree that it contravenes fundamental no-tions of justice and thus undermines the integrity of the judicialprocess

[Emphasis added].

22 The ultimate question is whether the police conduct was so egregiousthat it would shock the conscience of the community and demand that theCourt not lend its process to a prosecution flowing from such conduct.


23 In R. v. Regan, supra, Lebel J, speaking for the majority referred tothe unanimous decision of the Supreme Court of Canada in R. v.O’Connor, supra, and stated at para. 50:

....“L’Heureux-Dube J. thus held that now, when the courts are askedto consider whether the judicial process has been abused, the analy-sis under the common law and the Charter will dovetail (SeeO’Connor, at para. 71). In this manner, while it acknowledged thatthe focus of the Charter had traditionally been the protection of indi-vidual right, the O’Connor decision reflected and accommodated theearlier concepts of abuse of process, described at common law asproceedings “unfair to the point that they are contrary to the interestof justice” (R. v. Power, [1994] 1 S.C.R. 601 (S.C.C.), at p. 616), andas “oppressive treatment” (R. v. Conway, [1989] 1 S.C.R. 1659(S.C.C.), at p. 1667). In an earlier judgment, McLachlin J. (As shethen was) expressed it this way:

...abuse of process may be established where: (1) the pro-ceedings are oppressive or vexatious; and, (2) violate thefundamental principles of justice underlying the commu-nity’s sense of fair play and decency. The concepts of op-pressiveness and vexatiousness underline the interest ofthe accused in a fair trial. But the doctrine evokes as wellthe public interest in a fair and just trial process and theproper administration of justice. I add that I would readthese criteria cumulatively.

(R. v. Scott, [1990] 3 S.C.R. 979 (S.C.C.) at p. 1007)

ARGUMENT24 The accused’s argument that the police conduct in this case is an

abuse of process centers on two actions:

(1) The use of undercover police officers to enforce s. 286.1 of theCriminal Code.

The accused contends that this was a misuse of the criminal law in anattempt to correct a small social problem that the police had failed toaddress head on when trying to get the sex trade workers help throughthe addiction and mental health agencies.

(2) The press conference held by the police at the end of the operation.

The accused submits that it amounted to a public shaming by namingthe twenty-seven individuals charged along with their ages and places ofresidence.


LEGISLATIVE FRAMEWORK25 In Bedford v. Canada (Attorney General), 2013 SCC 72 (S.C.C.),

three sex trade workers sought a declaration that three provisions of theCriminal Code were unconstitutional pursuant to sections 7 and 2(b) ofthe Charter. Those Criminal code provisions prohibited a person fromkeeping a bawdy-house, from living on the avails of prostitution of an-other, and from communicating for the purpose of engaging in prostitu-tion. On December 20, 2013, the Criminal Code provisions were foundto have infringed section 7 of the Charter and were held to be not justi-fied under section 1 of the Charter.

26 Chief Justice Beverley McLachlin, writing for the Court, stated atpara. 58 - 60:

58 Section 7 provides that the state cannot deny a person’s right tolife, liberty or security of the person, except in accordance with theprinciples of fundamental justice. At this stage, the question iswhether the impugned laws negatively impact or limit the applicants’security of the person, thus bringing them within the ambit of, or en-gaging, s. 7 of the Charter.

59 Here, the applicants argue that the prohibitions on bawdy-houses,living on the avails of prostitution, and communicating in public forthe purposes of prostitution, heighten the risks they face in prostitu-tion — itself a legal activity. The application judge found that the ev-idence supported this proposition and the Court of Appeal agreed.

60 For reasons set out below, I am of the same view. The prohibi-tions at issue do not merely impose conditions on how prostitutesoperate. They go a critical step further, by imposing dangerous con-ditions on prostitution; they prevent people engaged in a risky-butlegal-activity from taking steps to protect themselves from the risks.

27 The Supreme Court of Canada suspended the declaration of invalidityfor one year and Chief Justice McLachlin stated at para. 165-169:

165 I have concluded that each of the challenged provisions, consid-ered independently, suffers from constitutional infirmities that violatethe Charter. That does not mean that Parliament is precluded fromimposing limits on where and how prostitution may be conducted.Prohibitions on keeping a bawdy-house, living on the avails of pros-titution and communication related to prostitution are intertwined.They impact on each other. Greater latitude in one measure-for ex-ample, forbidding the nuisances associated with keeping a bawdy-house. The regulation of prostitution is a complex and delicate mat-


ter. It will be for Parliament, should it choose to do so, to devise anew approach, reflecting different elements of the existing regime.

166 This raises the question of whether the declaration of invalidityshould be suspended and if so, for how long.

167 On the one hand, immediate invalidity would leave prostitutiontotally unregulated while Parliament grapples with the complex andsensitive problem of how to deal with it. How prostitution is regu-lated is a matter of great public concern, and few countries leave itentirely unregulated. Whether immediate invalidity would pose adanger to the public or imperil the rule of law (the factors for sus-pension referred to in Schachter v. Canada, [1992] 2 S.C.R. 679(S.C.C.) may be subject to debate. However, it is clear that movingabruptly from a situation where prostitution is regulated to a situa-tion where it is entirely unregulated would be a matter of great con-cern to many Canadians.

168 On the other hand, leaving the prohibitions against bawdy-houses, living on the avails of prostitution and public communicationfor purposes of prostitution in place in their present form leavesprostitutes at increased risk for the time of the suspension-riskswhich violate their constitutional right to security of the person.

169 The choice between suspending the declaration of invalidity andallowing it to take immediate effect is not an easy one. Neither alter-native is without difficulty. However, considering all the interests atstake, I conclude that the declaration of invalidity should be sus-pended for one year.

28 Parliament enacted new Criminal Code offences in Bill C-36 whichare now contained in sections 286.1 - 286.5. Counsel for the Crown andDefence have jointly filed for the consideration of the Court as Exhibit 1,the Technical Paper: Bill C-36, Protection of Communities and ExploitedPersons Act, published by the Department of Justice. The Technical Pa-per speaks of the purpose in creating the new provisions and goes intothe background of research and consultation leading to these new Crimi-nal Code provisions.

29 The centerpiece of Bill C-36 is a shift in legislative policy away fromthe old approach which treated prostitution as a public nuisance to a rec-ognition that prostitution is inherently exploitive to sex trade workerswith great potential for violence from johns and pimps. Under the previ-ous legislation, the sex trade workers were themselves subject to prose-cution and reporting violence at the hands of a john or pimp could havealso exposed them to criminal penalties for engaging in prostitution. Inaddition, the previous law which criminalized the sex trade workers often


fostered a distrust of the police who were seen as not being there to pro-tect them.

30 The objectives of the new legislation are clearly set out in the Techni-cal Paper:

(a) Objectives of the Legislation

Bill C-36 reflects a significant paradigm shift away from the treat-ment of prostitution as “nuisance”, as found by the Supreme Court ofCanada in Bedford, toward treatment of prostitution as a form ofsexual exploitation that disproportionately and negatively impacts onwomen and girls. Bill C-36 signals this transformational shift boththrough its statement of purpose, as reflected in its preamble, and itsplacement of most prostitution offences in Part VIII of the CriminalCode, Offences Against the Person.

Bill C-36’s objectives are based on the following conclusions drawnfrom the research that informed its development:

• The majority of those who sell their own sexual services arewomen and girls, Marginalized groups, such as Aboriginalwomen and girls, are disproportionately represented.

• Entry into prostitution and remaining in it are both influ-enced by a variety of socio-economic factors, such as poverty,youth, lack of education, child sexual abuse and other formsof child abuse, and drug addiction.

• Prostitution is an extremely dangerous activity that poses arisk of violence and psychological harm to those subjected toit, regardless of the venue or legal framework in which ittakes place, both from purchasers of sexual services andprostitution.

• Prostitution reinforces gender inequalities in society at largeby normalizing the treatment of primarily women’s bodies ascommodities as to be bought and sold. In this regard, prosti-tution harms everyone in society by sending the message thatsexual acts can be bought by those with money and power.Prostitution allows men, who are primarily the purchasers ofsexual services, paid access to female bodies, therebydemeaning and degrading the human dignity of all womenand girls by entrenching a clearly gendered practice in Cana-dian society.

• Prostitution also negatively impacts the communities in whichit takes place through a number of factors, including: relatedcriminality, such as human trafficking and drug-relatedcrime; exposure of children to the sale of sex as commodity


and the risk of being drawn into a life of exploitation; harass-ment of residents; noise, impeding traffic, unsanitary acts, in-cluding leaving behind dangerous refuse such as used con-doms or drug paraphernalia; and, unwelcome solicitation ofchildren by purchasers.

• The purchase of sexual services creates the demand for pros-titution, which maintains and furthers pre-existing power im-balances, and ensures that vulnerable persons remain sub-jected to it.

• Third parties promote and capitalize on this demand by facil-itating the prostitution of others for their own gain. Such per-sons may initially pose as benevolent helpers, providers of as-sistance and protection to those who “work” for them. Butthe development of economic interests in the prostitution ofothers creates an incentive for exploitative conduct in orderto maximize profits. Commercial enterprises in which prosti-tution takes place also raise these concerns and create oppor-tunities for human trafficking for sexual exploitations toflourish.

Consequently, Bill-36 recognizes that prostitution’s victims are man-ifold; individuals who sell their own sexual services are prostitu-tion’s primary victims, but communities, in particular children whoare exposed to prostitution, are also victims, as well as society itself.Bill C-36 also recognizes that those who create the demand for pros-titution, i.e., purchasers of sexual services, and those who capitalizeon that demand, i.e., third parties who economically benefit from thesale of those services, both cause and perpetuate prostitution’sharms.

Consequently, Bill C-36 seeks to denounce and prohibit the demandfor prostitution and to continue to denounce and prohibit the ex-ploitation of the prostitution of others by third parties, the develop-ment of economic interests in the exploitation of the prostitution ofothers and the institutionalization of prostitution through commercialenterprises, such as strip clubs, massage parlours and escort agen-cies in which prostitution takes place. It also seeks to encouragethose who sell their own sexual services to report incidents of vio-lence and leave prostitution. Bill C-36 maintains that the best way toavoid prostitution’s harms is to bring an end to its practice.

IMMUNITIES: SELLERS

Bill C-36 criminalizes the purchase but not the sale of sexual ser-vices. However, Bill C-36 in no way condones the sale of sexual ser-vices; rather, it treats those who sell their own sexual services as


victims who need support and assistance rather than blame and pun-ishment. Research shows that individuals frequently engage in pros-titution as a result of seriously constrained choices and/or becausethey have been coerced by unscrupulous individuals to do so. [47]This asymmetrical approach is also intended to encourage those whosell their own sexual services to report incidents of violence and ex-ploitation committed against them, rather than seeking to avoid de-tection by law enforcement.

Accordingly, Bill C-36 expressly immunizes from prosecution indi-viduals who receive a material benefit from their own sexual servicesor who advertise those services. It also immunizes those who selltheir own sexual services for any part they may play in the purchas-ing, material benefit, procuring or advertising offences in relation tothe sale of their own sexual services. Such prosecutions would other-wise normally be available by operation of general provisions of thecriminal law that impose criminal liability on persons for variousforms of participation in offences committed by other persons (i.e.,liability for aiding, abetting or counseling another to commit an of-fence, conspiring with another person to commit an offence or beingan accessory after the fact to an offence). These immunities meanthat individuals cannot be prosecuted for selling their own sexualservices, whether independently or cooperatively, from fixed indooror other locations, as long as the only benefit received is derivedfrom the sale of their own sexual services.

THE POLICE UNDERCOVER OPERATION:31 The initial response by the Cape Breton Regional Police to com-

plaints about prostitution in the downtown Sydney area was to generallytreat it as a nuisance problem and try to move it away from the complaintarea. As the police talked to the sex trade workers they became increas-ingly aware of the hardships, stigma and violence to which they wereexposed. The Police Community Safety Unit, headed by Sgt. Jodie Wil-son, came to see first-hand how these workers, who were largely aborigi-nal, were often disadvantaged and vulnerable along race, economic andgender lines. The police sought and received specialized training on thenew prostitution offences, on human trafficking and on undercover oper-ations. The police then employed improved policing techniques by offer-ing the women strategies and information regarding community treat-ment programs for addictions, mental health and abuse suffered by them.The police also offered supportive relationships with them to promotefuture contacts and safety planning including information about poten-


tially violent johns. The new legislation, for the most part, decriminalizesprostitutes in recognition of their marginalized and vulnerable positionsand criminalizes the johns who buy, or attempt to buy, and the pimps andhuman traffickers who exploit, and profit from, coercing women into thesex trade.

32 As the police learned more about the dangers to which these womenwere exposed, they came to the conclusion that they could no longer usea “band-aid” approach to the problem. The new law had shifted the focusaway from the women who were seen as victims to the johns and pimpson the demand and exploitative side.

33 Operation John Be Gone was initiated using undercover police of-ficers posing as sex trade workers. The police were not able to use theactual sex trade workers themselves since they were reluctant to partici-pate in prosecutions for fear of reprisals from the johns or pimps.

34 The police utilized trained police officers to minimize any risk ofharm to the street workers.

35 The Defence has not advanced an entrapment argument. Entrapmentcan only be argued after an accused has been found guilty of an offencecharged and not before.

36 It would be an error in law to consider entrapment before a trial be-gins. A determination of entrapment is to be made, if at all, after a find-ing of guilt as held by the Supreme Court of Canada in R. v. Mack,[1988] 2 S.C.R. 903 (S.C.C.).

37 The Ontario Court of Appeal in R. v. Imoro, [2010] O.J. No. 586(Ont. C.A.) set aside the accused’s acquittals and substituted guilty ver-dicts where the trial judge sitting without a jury had at the beginning ofthe trial held that the undercover officer’s conduct amounted to entrap-ment. Laskin, J.A. stated at para 21 - 24:

21 The trial judge held that as she was sitting without a jury, shecould consider whether the undercover officer’s conduct amounted toentrapment at the outset of the trial before determining whether Mr.Imoro was guilty. This holding, respectfully, is contrary to Mack andto the Supreme Court of Canada’s later decision in R. V. Pearson,[1998] 3 S.C.R. 620.

22 In Mack, Lamer J. stated at p. 972: “Before a judge considerswhether a stay of proceedings lies because of entrapment, it must beabsolutely clear that the Crown had discharged its burden of provingbeyond a reasonable doubt that the accused had committed all theessential elements of the offence.”


23 Although in Mack the accused was tried by a jury, I do not readLamer J.’s statement as being limited to jury trials. In the very nextsentence on p. 972 he added, “if this is not clear and there is a jury,the guilt or innocence of the accused must be determined apart fromevidence which is relevant only to the issue of entrapment.” Whyshould guilt or innocence be determined before a judge considers en-trapment? Lamer J. provides the answer: “This protects the rights ofan accused to an acquittal where the circumstances so warrant.”

24 In Pearson, Lamer C.J. and Major J. writing for the majoritynoted that entrapment is not a conventional defence. It puts in issuenot the accused’s culpability but the conduct of the state. Thus, as themajority notes at para. 15, “It arises after a fair trial has found theaccused guilty.” Accordingly, a claim of entrapment leads to a “two-stage trial”. At the first stage, the trier of fact determines whether theaccused is guilty. If the accused is found guilty, the trial moves to thesecond stage where the judge considers the claim of entrapment. Insetting out these two stages, the Supreme Court did not distinguishbetween jury and non-jury trials. Whatever the mode of trial, thejudge ought to consider entrapment only after a finding of guilt.

38 In Operation John Be Gone, the police utilized trained undercover po-lice officers in an observable setting with minimized risk to thoseofficers.

39 The British Columbia Supreme Court analyzed the use of undercoverpolice officers in R. v. Riley, [2001] B.C.J. No. 2398 (B.C. S.C.). RomilyJ. stated at para 15 - 16:

15 In analyzing the actions of undercover officers specifically, thecourts have provided many guidelines. A common theme is their rec-ognition for the need of police to have some latitude in performingtheir duties. Lamer J. (As he then was), at p. 697 in R. v. Rothman,supra, states:

The authorities, in dealing with shrewd and often sophis-ticated criminals, must sometimes of necessity resort totricks or other forms of deceit and should not through therule be hampered in their work. What should be repressedvigorously is conduct on their part that shocks thecommunity.

16 In R. v Unger (1993), 83 C.C.C. (3d) 228 (Man. C.A.), anotherleading authority for the proposition that courts should not be settingpublic policy on the parameters of undercover operations, the courtused the test of the “reasonable dispassionate person, aware of thedifficulties in the investigation of the case”. This person would con-


sider an abuse of process argument only if the actions of the officerswere “unfair or so unacceptable, indecent, and outrageous, that theevidence that was derived from that operation, if admitted as evi-dence in the trial of the accused, could bring the administration ofjustice into disrepute.” (Hewak C.J.Q.B., at p. 253 of the trialdecision).

40 The accused has submitted that the police action in Operation JohnBe Gone was an abuse of process as an economic-based approach withan aim to solving an isolated and small social problem. The accused ar-gues that if prostitution was really such a problem, they could have sim-ply conducted surveillance like any other police operation instead ofresorting to the use of undercover police officers. I do not agree with thatpremise. The police could not use conventional surveillance alone with-out involving the sex trader workers who were reluctant to testify. In-stead, the police put trained undercover female police officers on thestreet to reduce the risk of harm.

41 The police actions were a legitimate response to a need to protectsociety’s most marginalized and vulnerable members in focusing theirattention on the men driving demand. As well, the effort by the police indisseminating information to the sex trade workers on safety issues, so-cial services, drug and alcohol rehabilitation and treatment programs re-lated to abuse, is encouraging.

42 I find that there was no abuse of process in the techniques used by thepolice in Operation John Be Gone.

THE PRESS CONFERENCE:43 The applicant argues that the press conference at the end of Operation

John Be Gone amounted to a public shaming and that it was the modernday equivalent of locking someone in the stocks. The accused submitsthat he was a mere pawn used by the police so they could show the pub-lic, after eighteen to twenty-four months of making no progress on deal-ing with the situation, that they had actually done something.

44 At the press conference, the police released the names, ages andplaces of residence of the twenty-seven individuals charged. The accusedsubmits that while it is common for the names of individuals charged tobe released to the public, this is usually as a result of the local mediadoing their own research through the Courts.

45 There is no suggestion that the trial court has been compromised byany pre-trial statements made by the police which would prejudice the


accused’s fair trial interests. The application by the accused is based onthe second branch of the abuse of process doctrine, i.e. the residualpower of a court to protect the integrity of the judicial process and tomaintain confidence in the administration of justice.

46 In Regan, supra, the police revealed that Mr. Regan was under inves-tigation eighteen months before any charges were laid. The SupremeCourt of Canada agreed with the finding of the trial judge that the policeerror in releasing the accused’s name as a suspect well in advance ofcharges being laid, contrary to public policy, did not rise to the level ofegregious abuse warranting a stay of proceedings. LeBel, J. held at para92-95:

92 The trial judge found that the police were “clearly wrong” (para.86) when they released Regan’s name as a suspect, well in advanceof any charges. This was in contravention of the express policy oflaw enforcement agencies that the identity of suspects may be re-leased only after charges have been laid. However, Macdonald J. ad-ded that this lapse was not done in bad faith, and the judge himselffurther indicated that this police error influenced his finding of abuseof process “to a lesser extent” (para 132).

93 This policy was adopted, no doubt, to protect the privacy andother interests of individuals who are merely questioned about acrime, with nothing more. There is no question that such a policy islaudable, and a breach of it should not be condoned. However, otherevidence on the record indicates that after this one misstep, the po-lice exercised greater caution in preventing further information leaksuntil the process was truly public. For example, when the police de-livered their investigation report to DPP Pearson, the letter includeda control sheet asking that all persons who have control or access toplease sign and date, to establish continuity. Throughout this investi-gation, the media has been diligent and persistent in obtaining infor-mation and for this reason security must remain a priority. I haveimplemented controls within the R.C.M. Police to limit access. I havenot allowed any R.C.M. Police documents, pertaining to this investi-gation, to be disseminated outside this Headquarters, Halifax Subdi-vision and the Task Force investigators. Therefore, I am now askingthat the same restriction occur within your office and this informa-tion be carefully protected. (Letter from chief Superintendent Falk-ingham to DPP Pearson, May 19, 1994)

In addition, the police acceded to Regan’s request to hold the ar-raignment outside Halifax, to try to avoid a media frenzy. In my view,this supports the finding of no bad faith.


94 I would add that following the dictum in Blencoe, the prejudiceexperienced by the appellant as a result of this early leak - humilia-tion and stress - cannot be attributed to this police error alone. Thisimpact on Regan was a certainty no matter when his name was fi-nally released in connection with these charges, and there is no ques-tion that there was sufficient evidence and subjective belief for thepolice to ultimately lay at least some of the charges. Furthermore,there is no evidence to suggest that the premature announcement hadany effect on the separate question of whether the Crown properlyproceeded with the charges. While the media may have beenclamouring for information, it does not follow that this put pressureon the authorities to lay any particular number of charges at all, forthat matter.

95 For these reasons, I think the trial judge was correct in his findingthat this police error either alone or in combination with the Crownconduct discussed above does not rise to the level of egregiousabuse. The serious remedy of a stay of proceedings is not an appro-priate method to denounce or punish past police conduct of thisnature.

47 The Cape Breton Post reported five days before the police press con-ference that a number of “sources” had told the newspaper that more thantwenty-five individuals were to be charged relating to the solicitation ofsex. (Exhibit 3). On September 8, 2015, Cape Breton Regional PoliceChief, Peter MacIsaac, announced the charges at a press conference fol-lowing what was referred to as “a seven day sting operation” betweenAugust 26th to September 4th involving undercover female police of-ficers. With the formal laying of the charges before the Courts, the policereleased the names of the twenty-seven accused, along with their agesand places of residence. The Cape Breton Post reported on its website onSeptember 8, 2015, that Chief Peter MacIsaac said “that could serve as adeterrent for others”. (Exhibit 4).

48 Police Chief MacIsaac credited the community safety enforcementunit, vehicle and foot patrols and the management team for the work putinto the sting and added that “the investigation is not completed”. Healso referred to the police service working with community partners in-cluding mental health and addiction services since beginning its investi-gation. He added that a number of the women who had been involved inprostitution had gone into treatment for opioid addiction which had beena major contributing factor to the increased prostitution activity. (Exhibit4).


49 In describing the new laws shifting criminal enforcement toward thebuyers of sex and targeting the demand side, the police highlighted thenew approach to law enforcement encouraging prostitutes to exit whileholding johns criminally responsible.

50 The police do have a discretion to release information to the mediasubject to an over-riding limitation to not give details which could jeop-ardize a fair trial for an accused. The personal information released at thepress conference was limited to what was already accessible to the mediaand the public in the informations before the Court. The information re-leased by the police at the press conference does not constitute an abuseof process.

CONCLUSION:51 In considering whether the Crown (as represented by the police) has

engaged in action that is so offensive to fundamental notions of fair playand decency that proceeding with the trial would undermine the integrityof the judicial process, I conclude that there is no evidence of conductbefore me which would objectively warrant a finding of abuse ofprocess.

52 Accordingly, on the evidence before me, I find that the accused hasfailed to establish an abuse of process under s. 7 of the Charter. Even if Iwere incorrect in this finding, the accused has not met the criteria re-quired for a judicial stay of proceedings as the circumstances presentedthus far in this hearing do not amount to the “clearest of cases” warrant-ing such a remedy.

Application dismissed.

R. v. McMillan 447

[Indexed as: R. v. McMillan]

Regina (Appellant) and Jason McMillan (Respondent)

Yukon Territory Court of Appeal

Docket: 15-YU765

2016 YKCA 10

Frankel, Stromberg-Stein, Dickson JJ.A.

Heard: March 22, 2016


Pre-trial procedure –––– Information — Substance of information — State-ment of offence — Description of time and place –––– Time and place neces-sary elements in order to identify alleged transaction and critical to accused’sdefence.

The accused was arrested as part of a larger drug investigation of traffickingbetween British Columbia and Yukon. He was charged with a single count ofpossessing cocaine for the purpose of trafficking on or about August 30, 2013 ator near Whitehorse, Yukon. At trial, the Crown’s case was circumstantial in thatit relied on two fingerprints on packaging material for the cocaine that werematched to the accused. A police agent, DS, obtained the package from a resi-dence in Whitehorse and turned it over to his handlers. DS was a former drugtrafficker. He testified that he was unaware of any involvement by the accusedin the transaction and that he did not know the accused, although they had metonce about two to four weeks before the transaction.

The trial judge acquitted the accused. She held that the time and place allegedparticularized in the information were essential elements that the Crown wasalleged to prove because they were necessary to understanding the allegationand the case that the accused had to meet.

The Crown appealed the acquittal, arguing that the trial judge erred in holdingthat the time and place had to be proved beyond a reasonable doubt.

Held: The appeal was dismissed.

It was clear throughout the trial that the time and place of the offence weresignificant from the defence perspective. The Crown was required to prove thedetails specified in an information either if they were essential elements of theoffence or if they were critical to the defence. Time and place are not ordinarilyconsidered essential elements but will be when necessary for the accused toidentify the factual transaction forming the basis of the offence. Specifics suchas time and place were also critical to the defence because the accused relied on


them to defend the charge as particularized. The defence focused much of itscross-examination and argument on those issues.

The court had wide territorial jurisdiction to try drug offences. However, theCrown conflated the territorial jurisdiction of the court to try offences outside ofthe territory with issues of the sufficiency of pleadings. The wide territorial ju-risdiction for drug offences did not absolve the Crown from proving the neces-sary elements of time and place of the offence as alleged.

Cases considered by Dickson J.A.:

Canada (Procureure generale) c. Quebec (Juge de la Cour superieure) (1999),[1999] Q.J. No. 1812, EYB 1999-14020 (C.S. Que.) — referred to

R. v. B. (G.) (1990), 56 C.C.C. (3d) 200, [1990] 2 S.C.R. 30, (sub nom. R. v. B.(G.) (No. 2)) 111 N.R. 31, (sub nom. R. v. B. (G.) (No. 2)) 86 Sask. R. 111,77 C.R. (3d) 347, 1990 CarswellSask 20, 1990 CarswellSask 410, [1990]S.C.J. No. 58, REJB 1990-97997 (S.C.C.) — considered

R. v. Brodie (1936), [1936] S.C.R. 188, 65 C.C.C. 289, [1936] 3 D.L.R. 81,1936 CarswellQue 36 (S.C.C.) — referred to

R. v. Cote (1977), [1978] 1 S.C.R. 8, 40 C.R.N.S. 308, [1977] 2 W.W.R. 174, 13N.R. 271, 33 C.C.C. (2d) 353, 73 D.L.R. (3d) 752, 1977 CarswellSask 32,1977 CarswellSask 136, [1977] S.C.J. No. 37 (S.C.C.) — considered

R. v. P. (D.J.) (2004), 2004 YKSC 9, 2004 CarswellYukon 17, [2004] Y.J. No.18 (Y.T. S.C.) — referred to

R. v. Robinson (2005), 2005 NSCA 65, 2005 CarswellNS 155, 196 C.C.C. (3d)557, 232 N.S.R. (2d) 46, 737 A.P.R. 46, [2005] N.S.J. No. 140 (N.S.C.A.) — considered

R. v. Saunders (1990), 46 B.C.L.R. (2d) 145, [1990] 1 S.C.R. 1020, 108 N.R.234, (sub nom. Regina v. Rooke & De Vries) 56 C.C.C. (3d) 220, 77 C.R.(3d) 397, 1990 CarswellBC 116, 1990 CarswellBC 755, [1990] S.C.J. No.22, EYB 1990-67007 (S.C.C.) — considered


Canada Agricultural Products Act, R.S.C. 1985, c. 20 (4th Supp.)s. 38 — considered

Canada Shipping Act, 2001, S.C. 2001, c. 26s. 257 — referred tos. 258 — referred to


Generally — referred toControlled Drugs and Substances Act, S.C. 1996, c. 19

s. 47(2) — referred toCriminal Code, R.S.C. 1985, c. C-46

s. 478(1) — referred tos. 581(3) — considered

R. v. McMillan Dickson J.A. 449

s. 601(4.1) [en. R.S.C. 1985, c. 27 (1st Supp.), s. 123(3)] — referred toCustoms Act, R.S.C. 1985, c. 1 (2nd Supp.)

s. 162 — consideredSpecies at Risk Act, S.C. 2002, c. 29

s. 101 — considered

APPEAL by Crown from judgment reported at R. v. McMillan (2015), 2015YKTC 31, 2015 CarswellYukon 60, [2015] Y.J. No. 56 (Y.T. Terr. Ct.).

E. Marcoux, for AppellantV. Larochelle, for Respondent

Dickson J.A.:

Introduction1 On September 11, 2015, Chief Judge Ruddy acquitted the respondent,

Jason McMillan, on a single count of possessing cocaine for the purposeof trafficking “on or about August 30, 2013, at or near Whitehorse, Yu-kon Territory”. Following a three-day trial, she found the Crown failed toprove the date and location of the offence, as particularised in the infor-mation. She also held the date and location of the offence were essentialelements the Crown was required to prove because they were necessaryto Mr. McMillan’s understanding of the allegation against him and thecase he had to meet to defend himself. The Crown appeals, contendingthe judge erred in law in holding the date and location of the offence hadto be proved beyond a reasonable doubt. At the hearing, Crown counselabandoned a second ground of appeal relating to a possible amendmentof the information which was neither sought by the Crown nor consid-ered by the judge.

Factual Background2 Mr. McMillan was arrested as part of a larger investigation into a

drug trafficking operation between the lower mainland of British Colum-bia and Yukon. The Crown’s case against him was circumstantial. It re-lied mainly upon two fingerprints found on material used to package abrick of cocaine retrieved on August 30, 2013 by a police agent, D.S.,from a Whitehorse residence and turned over to his handlers. A finger-print expert later linked the two fingerprints to Mr. McMillan.

3 D.S. is a former drug trafficker in the Whitehorse area. At trial, hetestified that he was unaware of any involvement by Mr. McMillan in theAugust 30 transaction and did not know him, although they had met once


at the Yukon Inn about two to four weeks before it occurred (approxi-mately August 2-16). He did not identify Mr. McMillan as someone whohad previously delivered drugs to Whitehorse. Nor did he say Mr. Mc-Millan was present in the Whitehorse residence on August 30 when heretrieved the cocaine.

4 Cpl. Ellis, the primary investigator, also testified. She described po-lice surveillance conducted on August 30 when D.S. retrieved the co-caine. She testified further about an August 6, 2013 cocaine delivery toWhitehorse. According to Cpl. Ellis, D.S. was also involved in distribut-ing that cocaine.

5 Throughout the trial it was clear to all concerned that the time andplace of the offence were significant from the defence perspective. At theoutset, defence counsel identified the time of the offence as an issue fordetermination. He also cross-examined the Crown’s fingerprint expert onthe time and location of their placement and made closing submissionson the time and location of the offence particularised in the information.Amongst other things, he emphasised the absence of evidence that Mr.McMillan was in Whitehorse on or about August 30 and submitted that,even if accepted, the fingerprint evidence was more consistent with himhaving handled the cocaine in British Columbia rather than inWhitehorse.

6 For his part, Crown counsel acknowledged that the case against Mr.McMillan was circumstantial. He submitted, however, the only reasona-ble inference to be drawn from the evidence was that Mr. McMillan wasin possession of the cocaine in Whitehorse on or about August 30, 2013.According to Crown counsel, Mr. McMillan had obviously acted in acocaine delivery capacity previously, given his encounter with D.S. atthe Yukon Inn a few weeks before the August 30 transaction. When hispresence in Yukon at the time of the earlier delivery was taken togetherwith his fingerprints on the cocaine packaging, Crown counsel urged thejudge to infer that Mr. McMillan wrapped the cocaine package and trans-ported it to Whitehorse. On this basis, he urged her to find him guilty ascharged.

Reasons of the Trial Judge7 The judge began by reviewing the evidence and submissions of coun-

sel. She concluded the case could be disposed of based on whether theCrown had proven the time and location of the offence, as particularised.In reaching this conclusion, she acknowledged that not all particulars set


out in a count are essential to the charge. Some may be mere surplusage.However, citing R. v. Saunders, [1990] 1 S.C.R. 1020 (S.C.C.) and s.581(3) of the Criminal Code, R.S.C. 1985, c. C-46, she also recognisedthat a count must contain sufficient detail to identify the transaction al-leged in a manner which allows the accused to understand the case to bemet.

8 Without making definitive findings, the judge assumed the finger-prints identified by the Crown expert were Mr. McMillan’s. She also as-sumed that their location on the cocaine packaging gave rise to the infer-ence of possession for the purpose of trafficking. However, she went onto find the specified date of “on or about August 30” and the place ofWhitehorse were essential elements to be proved by the Crown becausethey were necessary to Mr. McMillan’s understanding of the transactionalleged and the case he had to meet. She also found that Mr. McMillanrelied on those details when considering how to mount his defence to thecharge he was facing. For example, she noted that had the location beenparticularised differently it may have impacted on his decision as towhether or not to testify.

9 The judge was not satisfied that the Crown had proved either the dateor location of the offence particularised in the information. She notedthere was no direct evidence that Mr. McMillan was in Whitehorse on orabout August 30 and found D.S.’s testimony regarding the alleged meet-ing in early August was unreliable. In these circumstances, she foundthere was no evidence upon which to conclude beyond a reasonabledoubt that Mr. McMillan had ever been in Yukon prior to the proceed-ings. She also found that, as defence counsel submitted, the location ofMr. McMillan’s fingerprints was more consistent with his having been incontact with the cocaine in British Columbia rather than in Whitehorse.In the result, she acquitted Mr. McMillan.

Positions of the Parties

Defence Position10 Defence counsel submits that the judge was correct to conclude the

Crown was obliged to prove time and place given the circumstances ofthe case before her. Both were necessary to identify the transaction atissue and critical to the defence.


Crown Position11 On appeal, Crown counsel does not challenge the judge’s conclusion

that the Crown failed to prove beyond a reasonable doubt the time andplace particularised in the information. Rather, he submits that the Crownwas not obliged to prove them because, in this case, they were not mate-rial. In support of this submission, he relies on R. v. B. (G.), [1990] 2S.C.R. 30 (S.C.C.); R. v. Robinson, 2005 NSCA 65 (N.S. C.A.); and R. v.P. (D.J.), 2004 YKSC 9 (Y.T. S.C.). He also relies on s. 601(4.1) of theCriminal Code and s. 47(2) of the Controlled Drugs and Substances Act,S.C. 1996, c. 19 [CDSA]. I will summarise the salient aspects of theseauthorities and statutory provisions in order to explain my understandingof the Crown’s position on appeal.

12 B. (G.) was a sexual assault case. Several young offenders werecharged with sexually assaulting a fellow elementary school student be-tween certain dates specified in separate informations. At trial, the judgeheld that if the alleged event did take place, its date had not been estab-lished and, on that basis, acquitted the accused. On appeal, the Saskatch-ewan Court of Appeal and Supreme Court of Canada held that he erredin finding the time of the offence was an essential element which must beproved.

13 The Supreme Court of Canada noted in B. (G.) that courts have re-cently tended not to require the degree of specificity in criminal plead-ings formerly thought to be necessary to overcome insufficiency argu-ments. Nevertheless, an information must still provide an accused withenough information to enable him to prepare an adequate defence. Whilethe time of the offence must be specified, the Crown need not prove theexact time alleged unless it is an essential element of the offence or cru-cial to the defence. In B. (G.), it was neither. As Wilson J. stated, “thedate of the offence is not generally an essential element of the offence ofsexual assault. It is a crime no matter when it is committed” (at 53). TheNova Scotia Court of Appeal came to a similar conclusion in Robinson,holding that the date of possession of prohibited weapons was not anessential element of the offence in the circumstances of the case (at para.14).

14 Section 601(4.1) of the Criminal Code concerns amendment of defec-tive counts in an indictment. It provides that a variance between the in-dictment and the evidence is not material with respect to i) the allegedtime of the offence, if the indictment was preferred within the prescribed


limitation period, or ii) the place of the alleged offence, if it arose withinthe court’s territorial jurisdiction.

15 Section 47(2) of the CDSA permits the Crown to prosecute drug of-fences anywhere in Canada where the offence occurred, the subject-mat-ter of the proceedings arose, the accused is apprehended, or the accusedis located. In P. (D.J.), the Yukon Supreme Court relied on s. 47(2) toconfirm its jurisdiction to try a youth on a charge under the CDSA for adrug offence that took place in British Columbia.

16 Drawing on these authorities and statutory provisions, Crown counselsubmits that the court in this case had jurisdiction to try the charge evenif Mr. McMillan possessed the cocaine in British Columbia rather than inWhitehorse. He emphasises that, like sexual assault and possession ofprohibited weapons, possession of cocaine for the purpose of traffickingis a crime no matter where and when it is committed. He goes on tosubmit the result here must be wrong because the acquittal was based onMr. McMillan’s possession of drugs in a place other than Whitehorse.However, given the court’s s. 47(2) CDSA jurisdiction to try drug of-fences committed outside the territory, the principles discussed in B. (G.)and Robinson, and the language of s. 601(4.1) of the Criminal Code re-garding materiality, he contends that time and place were not essentialelements of the offence, nor were they crucial to the defence because nodefence was presented. In consequence, he submits, as in B. (G.) andRobinson, the acquittal should be set aside and a new trial should beordered.

Discussion17 I would not accede to the Crown’s submissions. In my view, they

conflate issues of jurisdiction with issues of sufficiency of pleadings.They also ignore the requirements of the pleadings sufficiency rule.

Jurisdiction18 Every court must have jurisdiction to hear the case presented. As a

general rule, a criminal court can only try a case committed within itsterritorial jurisdiction: Criminal Code, s. 478(1). This rule is, however,subject to statutory exceptions. One such exception is found in s. 47(2) ofthe CDSA.

19 The purpose of s. 47(2) of the CDSA is to address the nature of thedrug trade, which crosses provincial and national borders: P. (D.J.) atpara. 13; Canada (Procureure generale) c. Quebec (Juge de la Cour


superieure), [1999] Q.J. No. 1812 (C.S. Que.) [hereinafter Cameron].This section broadens the general rule by expanding territorial jurisdic-tion in drug prosecutions, although the reach of its application may belimited by the Charter and the doctrine of abuse of process: Cameron atpara. 10; P. (D.J.) at para. 20. Similar jurisdictional provisions can alsobe found in other federal statutes: see, for example Canada Shipping Act,2001, S.C. 2001, c. 26, ss. 257-258 (marine vessel offences); CustomsAct, R.S.C. 1985, c. 1 (2nd Supp.), s. 162 (import and export offences);Species at Risk Act, S.C. 2002, c. 29, s. 101 (offences concerning endan-gered wildlife); Canada Agricultural Products Act, R.S.C. 1985, c. 20(4th Supp.), s. 38 (agricultural production and trade offences).

20 I accept that the Yukon court had jurisdiction to try the charge in thiscase. However, the key issue was not jurisdiction. It was whether thetime and place alleged in the information were material in the circum-stances and thus had to be proven.

21 The fact that a court may assume jurisdiction to try an offence unders. 47(2) of the CDSA does not relieve the Crown of its obligation to com-ply with the pleadings sufficiency rule. If it were otherwise, the Crowncould obtain convictions in drug cases regardless of the relationship, ifany, between the evidence presented as to time and place in Canada andthe allegation specified in the information. That is not the law.

Sufficiency of Pleadings22 The Crown must prove the details it specifies in an information if

they are either (a) an essential element of the offence, or (b) critical tothe defence: B. (G.) at 52. Any other details specified are mere surplus-age and need not be proven.

23 Time and place are not ordinarily considered essential elements of anoffence, however, they will be when they are necessary for the accusedto identify the factual transaction which forms the basis of the offence inquestion. For example, time or place will be essential where “there is apaucity of other factual information available with which to identify thetransaction”: B. (G.) at 52. The “golden rule” for determining whether acount is factually sufficient is that the accused must be “reasonably in-formed of the transaction alleged against him, thus giving him the possi-bility of a full defence and fair trial”: R. v. Cote (1977), [1978] 1 S.C.R.8 (S.C.C.) at 13; R. v. Brodie, [1936] S.C.R. 188 (S.C.C.) at 193-194. Ata minimum, this means that a count must describe the offence in such away as to “lift it from the general to the particular”: Brodie at 198.


24 Section 581(3) of the Criminal Code codifies the rule regarding thesufficiency of pleadings. It obliges the Crown to charge accused personswith a sufficient degree of specificity, which will depend on the nature ofthe offence and the circumstances of each case: B. (G.) at 44. Section581(3) provides:

581(3) A count shall contain sufficient detail of the circumstances ofthe alleged offence to give to the accused reasonable informationwith respect to the act or omission to be proved against him and toidentify the transaction referred to, but otherwise the absence or in-sufficiency of details does not vitiate the count.

25 Specifics are critical to the defence when the accused relies on themto defend the charge as particularised. If there is a variance between thedetails specified in the count and the evidence at trial, the accused maybe misled as to the alleged transaction that he or she must address. Insuch circumstances, the court will not amend a count to conform to thevariance because it would be “unfair and prejudicial” to change the na-ture of the Crown’s case retroactively: Saunders at 1024; B. (G.) at 49-51.

26 In this case, the judge recognised the need for specifics to lift theCrown’s allegation “from the general to the particular” as a matter offairness. Unlike the allegations in B. (G.) and Robinson, specifics as totime and place were necessary to identify the transaction which formedthe basis of the charge and inform Mr. McMillan of the case he had tomeet. The Crown’s submission at trial that Mr. McMillan was also in-volved in trafficking cocaine in a separate transaction in Whitehorsesome weeks earlier highlighted the need to particularise time and placeof the transaction at issue with specificity. In these circumstances, I seeno error in the judge’s conclusion that the Crown was obliged to provehe possessed cocaine for the purpose of trafficking at a time proximate toAugust 30 in Whitehorse.

27 Nor do I see error in the judge’s conclusion that Mr. McMillan reliedon the details of time and place in the information in mounting his de-fence to the charge he was facing. Amongst other things, his counsel fo-cused much of his cross-examination and argument on the poor qualityof the evidence placing Mr. McMillan in Yukon at the time and placespecified. It is obvious both were critical to the defence strategy that wasadopted. Accordingly, as the judge found, it was incumbent upon theCrown to prove them beyond a reasonable doubt. It failed to do so.


Conclusion28 It follows that I would dismiss the appeal.

Frankel J.A.:

I AGREE:

Dickson J.A.:

I AGREE:

Appeal dismissed.

R. v. S. (R.) 457

[Indexed as: R. v. S. (R.)]

Her Majesty the Queen (Respondent) and R.S. (Appellant)


Docket: CA C59275

2016 ONCA 655

Doherty, K. van Rensburg, L.B. Roberts JJ.A.

Heard: August 18, 2016

Judgment: September 7, 2016

Charter of Rights and Freedoms –––– Life, liberty and security of person [s.7] — General principles –––– Right to effective assistance of counsel — Trialcounsel failing to prepare for or conduct sexual assault trial competently — Fail-ures having direct impact on four of five charges — Failure pervasive and leav-ing accused effectively without counsel — New trial ordered on all five charges.

The accused was charged with assaulting his stepson and with four counts relat-ing to sexual offences against his daughter: he was convicted on all five counts.The accused appealed on the basis of ineffective assistance of counsel. TheCrown conceded that the four counts involving sexual offences had to be over-turned based on ineffective assistance but argued that the assault conviction wasnot undermined by trial counsel’s incompetence.

Held: The appeal was granted and a new trial was ordered on all five charges.

A conviction must be quashed if the result is properly characterized as a miscar-riage of justice. A miscarriage of justice occurs if the ineffective representationsufficiently undermines the reliability of the verdict, or results in an unfair trial.The reliability of a verdict is sufficiently undermined if the appeal court con-cludes that there is a reasonable probability that the verdict would have beendifferent had the appellant received adequate legal representation.

Here, the accused’s trial counsel failed to obtain a transcript of the daughter’sstatement to the police and so was not in a position to put inconsistencies be-tween it and her testimony to the witness in cross-examination. He knew of in-consistent statements made by the complainant to others but made no attempt tointerview those witnesses or prepare cross-examination based on those allegedstatements. Counsel based his trial strategy on the assumption that the accusedwould testify but then did not advise the accused of the negative consequencesof his eleventh hour decision not to do so. Counsel did not cross-examine thecomplainant on the many inconsistencies in her evidence. He attempted to cross-examine her on statements she had made about being sexually assaulted by herstepbrother, but abandoned this when the Crown argued that a s. 276 application


would be required: counsel neither made such an application nor argued that itwas not required. Counsel failed to oppose the Crown’s application to introduceevidence of discreditable conduct, first failing to diarize the deadline for provid-ing written material, then failing to file such material once he realized his error.

These errors had a more direct and significant impact on the charges concerningthe daughter than the one involving the stepson. However, the ineffective assis-tance was pervasive, and for all practical purposes the accused was without theassistance of counsel at trial. This occasioned a miscarriage of justice not only inits impact on the reliability of the verdicts but also in its negative effect on theappearance of the fairness of the trial. Accordingly all the charges were quashedand a new trial was ordered.

Cases considered by Doherty J.A.:

R. v. B. (G.D.) (2000), 2000 SCC 22, 2000 CarswellAlta 348, 2000 CarswellAlta349, 143 C.C.C. (3d) 289, [2000] S.C.J. No. 22, 32 C.R. (5th) 207, 184D.L.R. (4th) 577, [2000] 1 S.C.R. 520, 253 N.R. 201, [2000] 8 W.W.R. 193,81 Alta. L.R. (3d) 1, 261 A.R. 1, 224 W.A.C. 1 (S.C.C.) — referred to

R. v. Joanisse (1995), 44 C.R. (4th) 364, 85 O.A.C. 186, 102 C.C.C. (3d) 35,1995 CarswellOnt 960, [1995] O.J. No. 2883 (Ont. C.A.) — referred to

R. v. Joanisse (1997), 99 O.A.C. 79 (note), 208 N.R. 79 (note), [1997] 1 S.C.R.viii (note), 111 C.C.C. (3d) vi (note), [1996] S.C.C.A. No. 347 (S.C.C.) —referred to

R. v. Kienapple (1974), [1975] 1 S.C.R. 729, 26 C.R.N.S. 1, 15 C.C.C. (2d) 524,44 D.L.R. (3d) 351, 1 N.R. 322, 1974 CarswellOnt 8, 1974 CarswellOnt238F, [1974] S.C.J. No. 76 (S.C.C.) — followed

R. v. Prebtani (2008), 2008 ONCA 735, 2008 CarswellOnt 6268, 243 O.A.C.207, 240 C.C.C. (3d) 237, [2008] O.J. No. 4198 (Ont. C.A.) — referred to


Criminal Code, R.S.C. 1985, c. C-46s. 276 — considered

APPEAL by accused from convictions for assault, sexual assault, incest, touch-ing for sexual purpose, and invitation to touch for sexual purpose.

Ian Carter, for AppellantRoger Pinnock, for Respondent

Doherty J.A.:

I

OVERVIEW1 The appellant was charged with:

R. v. S. (R.) Doherty J.A. 459

• assaulting his stepson, M.L. (count 1);

• touching his daughter, M.S., for a sexual purpose (count 2);

• inviting M.S. to touch him for a sexual purpose (count 3);

• incest with M.S. (count 4); and

• sexually assaulting M.S. (count 5).2 The trial judge found the appellant guilty on all five charges, but

stayed the conviction on count 5 on the basis of the rule in R. v. Kienap-ple (1974), [1975] 1 S.C.R. 729 (S.C.C.). The trial judge imposedsentences totalling five years, three months.

3 The appellant appealed his convictions. He submitted that counsel’sconduct of his defence was so deficient as to render the verdicts a mis-carriage of justice. Following this court’s Protocol governing ineffectiveassistance of counsel claims, the appellant and trial counsel filed affida-vits for the purpose of the appeal and were cross-examined on thoseaffidavits.

4 Based primarily on the cross-examination of trial counsel, Crowncounsel on appeal conceded that trial counsel had not provided compe-tent assistance to the appellant at trial. The Crown conceded that the inef-fective assistance of counsel rendered the convictions in respect of theappellant’s daughter (counts 2 to 5) unreliable, necessitating a new trial.Crown counsel argued, however, that the appellant’s conviction on thecharge of assaulting his stepson (count 1) should stand. He submitted thatcounsel’s incompetence did not undermine the reliability of that verdict.

5 Counsel for the appellant argued that trial counsel’s incompetencewas pervasive and tainted the entire trial proceeding. He submitted thattrial counsel’s incompetence compromised the fairness of the trial andnecessitated the quashing of all convictions.

6 At the end of oral argument, the court allowed the appeal and ordereda new trial on all counts. These are the reasons for that disposition.

II

EVIDENCE7 The appellant and D.V. lived together between 1991 and 2003. M.L.,

the complainant in count 1, was D.V.’s son. He was born in 1990. M.S.,the complainant in counts 2 to 5, was the daughter of the appellant andD.V. She was born in 1996.


8 M.L. testified that when he was about five or six years of age, he wasliving with the appellant and his mother. The appellant was disciplininghim for misconduct at school. M.L., in an attempt to get away from theappellant, ran outside toward his mother who was in the family vehicle.The appellant caught him, slapped him, knocked him to the ground, andkicked him. According to M.L., he suffered bruised ribs and a contusionon his lip. He went to live with his father the next day.

9 D.V. testified and described an incident when M.L. was about five orsix years old. She saw him running toward her in the van with the appel-lant in pursuit. She did not see how the appellant caught up to M.L. andshe did not see the appellant actually punch him. D.V. saw the appellantmaking a motion as if he wanted to punch M.L. as he lay on the ground.She intervened and got between the two of them. D.V. put her son in thevan and drove away. Shortly afterward, he moved in with his father.

10 M.S. described two incidents when she was five or six years old. Thefirst incident occurred at the family home in Alexandria. She was playingin the playroom when the appellant came into the room and told her tofollow him. Her mother was not home. M.S. followed the appellant into abedroom. He touched her vagina and inserted his fingers into her vagina.He removed her clothing, assuring her that everything would be alright.He also removed some of his clothing. He instructed her to place herhand on his penis. She followed his instructions. At one point, there wasa noise in the kitchen and the appellant went to see what it was. He re-turned indicating everything was okay. She put her clothes back on. M.S.could not say at what time of the year this incident occurred or how longit went on.

11 The second incident occurred in the same house. The appellant cameinto the room where M.S. was playing and told her to follow him. Theywent into the bedroom. He removed her clothing and his clothing. Hetouched her inside and outside of her vagina and partially inserted hispenis into her vagina. He continually assured her that everything wouldbe okay. Just as in the first incident, he instructed his daughter to placeher hand on his penis. According to M.S., this incident ended when hermother arrived home. The appellant told her to hurry up and get dressedand explained to her mother that he was helping M.S. get dressed. M.S.could not say how long the assault took.

12 D.V. testified that she was unaware of any sexual misconduct towardany of the girls by the appellant.


13 M.S. and her sisters were apprehended by the Children’s Aid Societyin December 2003, after M.S.’s teacher noticed bruising on her face andnotified the authorities. Over the next six months, M.S. and her sistersmade allegations that both the appellant and D.V. physically assaultedand threatened them on a regular basis. M.S. did not allege any sexualmisconduct by the appellant until 2010. M.S. initially told social workersthat her stepbrother, M.L., had sexually assaulted her. When she was in-terviewed by the police about that assault, she told them that the appel-lant had also sexually assaulted her. At trial, she testified that she did notdisclose the appellant’s sexual abuse earlier because she was afraid ofhim.

14 The appellant did not testify.

The Reasons for Judgment15 The trial judge gave detailed reasons. He accepted M.L.’s description

of the assault and found that it was confirmed in material particulars bythe evidence of his mother, D.V. The trial judge reviewed the defencearguments and rejected several as speculative and unsupported by anyevidence.

16 The trial judge found M.S. to be a credible and reliable witness. Hegave many reasons for accepting M.S.’s evidence. He also identified andaddressed the arguments made on behalf of the appellant. In his reasons,the trial judge found that although M.S. had given a videotaped statementto the police and testified at the preliminary inquiry, there was “no indi-cation she contradicted herself in any significant way.” Her consistencywas one of the factors relied on by the trial judge in his assessment ofM.S.’s credibility and reliability.

III

THE INEFFECTIVE ASSISTANCE CLAIM17 An accused is constitutionally entitled to effective representation. Ef-

fective representation means reasonably competent representation. Coun-sel’s performance is measured without the benefit of hindsight and bear-ing in mind that the reasonable exercise of professional judgment will inmany instances allow for different tactical decisions: R. v. B. (G.D.),[2000] 1 S.C.R. 520 (S.C.C.), at paras. 27-28.

18 Trial counsel’s performance fell far below the reasonableness stan-dard. I will organize his multiple deficiencies into four categories. Trialcounsel failed to adequately prepare for trial; he failed to adequately


cross-examine the complainant M.S.; he failed to bring a s. 276 applica-tion or otherwise address the allegation that the stepson, M.L., had sexu-ally assaulted M.S.; and he failed to prepare for, or properly respond to,the Crown’s application to introduce evidence of the appellant’s discred-itable conduct.

(i) Inadequate trial preparation19 The appellant denied sexually assaulting M.S. from the outset of his

relationship with trial counsel. Trial counsel knew that cross-examinationof the complainants would be crucial to the appellant’s defence. How-ever, he did not order a transcript of their preliminary inquiry testimony.He could offer no explanation for his failure to take this most rudimen-tary step in the preparation for trial.

20 Trial counsel was provided with a CD of M.S.’s statement to the po-lice. He watched the CD, but did not have a transcript of her statementprepared or make notes that would allow him to locate any particular partof the statement should the need arise during the trial. Counsel acknowl-edged in his cross-examination that he was not in a position to put anypart of M.S.’s statement to her at trial should the need arise. Counsel’sinadequate preparation effectively rendered M.S.’s statement to the po-lice useless as a tool in her cross-examination. There were material in-consistencies between that statement and M.S.’s testimony.

21 Counsel was also aware from materials supplied by the Crown disclo-sure that M.S. had made conflicting statements describing the appellant’ssexual misconduct to one of her foster mothers. Those statements notonly contradicted M.S.’s testimony, but also described conduct that wasarguably so bizarre as to render the credibility of the allegation question-able. Trial counsel made no effort to interview the foster mother, or toprepare any cross-examination of M.S. based on the alleged statementsshe had made to her foster mother.

22 The appellant also provided trial counsel with information indicatingthat a clinical psychologist had prepared a report in 2005 in which heindicated that the children, including M.S., had made numerous conflict-ing statements about alleged sexual misconduct. Trial counsel made noeffort to obtain a copy of that report or to interview the clinical psycholo-gist. Had he done so, he would have found that the clinical psychologistreported that M.S. had made, but then retracted, allegations of sexualabuse at the hands of the appellant. This information may have provedmost useful at trial when M.S. testified that she first made the allegations


of sexual abuse against the appellant in 2010 because, on her evidence,she was too afraid to make the allegations earlier.

23 In the cross-examination on his affidavit, trial counsel acknowledgedthat he had fully anticipated that the appellant would testify. He countedon that testimony to supply a motive for the false allegations. The appel-lant had told counsel that he believed that the allegations were motivatedby his former wife’s anger in 2010 over the appellant’s new relationshipand the child that he and his new partner had. The appellant decided latein the trial that he would not testify.

24 The cross-examination of trial counsel demonstrates that he did verylittle to prepare the appellant to testify at his trial. Trial counsel also didnothing to impress upon the appellant the negative consequences of theappellant’s eleventh hour decision not to testify despite the fact that, ac-cording to trial counsel’s strategy, the defence was based on the assump-tion the appellant would testify.

25 Counsel could offer no explanation for his failures to adequately pre-pare for trial. Counsel’s inadequate preparation became apparent in thecourse of the trial. I turn now to those features of the ineffective assis-tance claim.

(ii) The inadequate cross-examination of M.S.26 Trial counsel did not suggest to M.S. during her testimony that any

part of her evidence was inconsistent with her statement to the police orher preliminary inquiry evidence. Appellate counsel assembled an im-pressive catalogue of inconsistencies upon which M.S. could have beencross-examined. Perhaps the most striking comes from M.S.’s statementto the police. In that statement, she indicated that her mother came intothe room and caught the appellant in the act of sexually assaulting M.S.M.S. told the police that her mother had required the appellant to leavethe home for two months. In her testimony, M.S. said nothing about hermother coming into the room during the assault and nothing about theappellant being forced to leave the home. Her mother, D.V., testified thatshe knew nothing of the sexual abuse until many years later. Counselnever confronted M.S. with this potentially powerful inconsistency. Hehad no explanation for failing to do so.

27 There were other material inconsistencies. For example, at trial, M.S.testified that the appellant put his penis into her vagina during the secondsexual assault. In her statement, she indicated she could not recallwhether he did so. Once again, trial counsel had no explanation for fail-


ing to cross-examine M.S. on those inconsistencies. On the record beforethis court, it is clear that because of his inadequate preparation, trialcounsel was not in a position to readily locate the relevant parts of M.S.’sstatement to the police so that he could effectively use them in cross-examination.

28 M.S.’s statement to the police and her evidence at the preliminaryinquiry were not the only potential sources of prior inconsistent state-ments which could have been used in the cross-examination of M.S. Asindicated above, M.S. told her foster mother that the appellant had sexu-ally assaulted her. She described assaults that were, however, very differ-ent from the assaults she described in her testimony. Trial counsel madeno effort to confront M.S. with those different and somewhat bizarre al-legations she had made to her foster mother.

29 Trial counsel was also in possession of a series of instant messagesthat had been sent by M.S. to her cousin in 2011, about six months afterM.S.’s initial disclosure to the police. In those statements, M.S. deniedthat the appellant put his penis in her vagina. At trial, she insisted that hedid. Trial counsel could offer no explanation for failing to put this incon-sistency to M.S.

30 Cross-examination of complainants in sexual assault cases on priorinconsistent statements, especially in cases involving allegations of his-torical sexual assaults, calls for the exercise of professional judgment.Different counsel may have different views of how and when to cross-examine a complainant on a prior inconsistent statement. Trial counsel’sfailure to cross- examine M.S., however, was not the product of anyjudgment he made. As he repeatedly acknowledged in his cross-examina-tion, his failure to challenge M.S. on her prior statements was a result ofhis “oversight” of the existence of the relevant inconsistencies.

(iii) The failure to bring a s. 276 application31 Trial counsel knew from the disclosure that M.S. had initially alleged

that her stepbrother, M.L., had sexually assaulted her. She did not men-tion the appellant in her initial disclosure. It was only when she was giv-ing her statement to the police about her stepbrother’s abuse that she toldthe police that the appellant had also sexually assaulted her.

32 Trial counsel also knew from the copies of the instant messages be-tween M.S. and her cousin that M.S. had initially told her cousin in 2011that her stepbrother had put his penis in her vagina, but her father hadnot.


33 The material provided to trial counsel forged a clear link betweenM.S.’s allegation against the appellant and her statements that she wasabused by her stepbrother. Some of the details of the two allegationsseemed interchangeable in M.S.’s different statements. Clearly, a properdefence of the appellant required an inquiry into M.S.’s statements abouther stepbrother’s assaults on her.

34 Trial counsel seemed to appreciate the need to question M.S. aboutthe allegations she made against her stepbrother. At the preliminary in-quiry, he attempted to cross-examine her about her activities with herstepbrother. The Crown objected to the question on the basis that no ap-plication under s. 276 of the Criminal Code had been made on behalf ofthe accused. Section 276 requires that before evidence can be adduced ofsexual activity other than the activity alleged in the charge, counsel mustapply for and obtain an order permitting the eliciting of that evidence.Immediately after the Crown made its objection, trial counsel abandonedthis line of questioning without making any submissions as to the appli-cability of s. 276.

35 The applicability of s. 276 arose again in the pretrial conference. Thenotes of that conference indicate that although the defence was allegingsexual abuse by the stepbrother, trial counsel did not contemplate a s.276 motion. According to the pretrial notes, trial counsel thought that hecould cover the matter in cross-examination of M.S.

36 At trial, counsel attempted to cross-examine M.S. about the sexualactivity with her stepbrother. Once again, the Crown objected on the ba-sis that no s. 276 application had been made. Trial counsel made no argu-ment to support the position that he could cross-examine M.S. despitenot having brought a s. 276 application. Instead, as he had done at thepreliminary inquiry, trial counsel abandoned that line of questioning.M.S. was never questioned about the allegations involving herstepbrother.

37 In his cross-examination, trial counsel could offer no explanation forhis failure to bring a s. 276 application. Initially, he said he did not thinkhe needed to bring one, but he could offer no explanation for simplyabandoning the line of questioning when the Crown objected, instead ofarguing that he was not obligated to bring the application.

38 Trial counsel had nothing in his file relating to the operation of s. 276and had never brought a s. 276 application before. There is good reasonto believe that trial counsel did not understand how the section worked


and believed that it did not apply to cross-examination of thecomplainant.

(iv) The failure to challenge the Crown’s application to adduce evidenceof other discreditable conduct

39 Prior to trial, the Crown served notice that it proposed to introduceevidence that the appellant and his wife had assaulted and threatenedtheir children, including M.S., while they were living together as a fam-ily. The Crown offered the evidence, both to show animus toward M.S.and to offer an explanation for her failure to complain about the appel-lant’s alleged sexual abuse until many years later.

40 The parties agreed that argument on the admissibility of the evidencewould be made in writing prior to trial. The trial judge fixed a schedulefor the filing of the relevant material. The Crown filed its application,factum and case law according to the schedule set by the trial judge. Trialcounsel did not file any responding material by the date set for the filingof that material.

41 At the hearing of the motion to admit the evidence, trial counsel toldthe court that he had failed to properly diarize the date for the filing ofmaterial and had only realized about a week earlier that he had missedthe deadline. Trial counsel had no explanation for failing to file anythingin the intervening week. The trial judge allowed counsel to make oralsubmissions in response to the Crown’s motion. Those submissionslacked both focus and cogency.

42 On his cross-examination, trial counsel once again admitted that hisfailure to file any material on the Crown’s motion was an “oversight”.He had intended to oppose the application. He also acknowledged that hehad nothing in his file to suggest he had done anything by way of prepa-ration for his oral submissions in response to the Crown’s motion.

43 Trial counsel’s abject failure to adequately represent his client’s inter-ests on the Crown’s motion to lead evidence of discreditable conduct ismitigated somewhat by the fact that there was in all likelihood little thatany counsel could have done to exclude the proffered evidence. The evi-dence had significant probative value. What is important, however, forthe purposes of this appeal is that counsel’s conduct was not the productof any consideration of the merits of the Crown’s motion. Trial counseldid not file material because he determined that the Crown’s motionwould inevitably succeed. Trial counsel simply failed to take any steps to


protect or present his client’s position on the motion despite his beliefthat the motion should be opposed.

What order should the court make?44 If an accused who receives ineffective representation at trial is con-

victed, the conviction must be quashed if the result is properly character-ized as a miscarriage of justice. A miscarriage of justice occurs if theineffective representation sufficiently undermines the reliability of theverdict, or results in an unfair trial. The reliability of a verdict is suffi-ciently undermined if the appeal court concludes that there is a reasona-ble probability that the verdict would have been different had the appel-lant received adequate legal representation: see R. v. Prebtani, 2008ONCA 735 (Ont. C.A.), at para. 4; R. v. Joanisse, [1995] O.J. No. 2883(Ont. C.A.), at paras. 74-80, leave to appeal to SCC refused, (1997),[1996] S.C.C.A. No. 347 (S.C.C.).

45 Mr. Pinnock conceded on the appeal that there was a reasonableprobability that the verdicts on the charges involving M.S. would havebeen different had the appellant received proper legal representation. Therecord fully justifies, indeed compels, the concession made by theCrown. The potential negative impact of trial counsel’s inadequate repre-sentation of the appellant on the reliability of the convictions involvingM.S. is self-evident. In light of Crown counsel’s concession, I need sayno more about the convictions on those counts.

46 Crown counsel submits, however, that it cannot be said that counsel’sineffective representation probably affected the outcome on the assaultcharge involving the stepson, M.L. I agree with Crown counsel thatmany of trial counsel’s deficiencies had a more direct and significant im-pact on the defence of the charges involving M.S. than on the defence ofthe charge involving M.L. I also agree with Crown counsel that M.L.’sallegation was confirmed to a significant degree by the evidence of hismother, D.V. In that sense, the Crown’s case on the charge involvingM.L. was stronger than its case on the charges involving M.S.

47 However, while I acknowledge the merits of the Crown’s attempt todistinguish among the charges, I ultimately agree with Mr. Carter’s co-gent submission that trial counsel’s ineffective representation taints all ofthe convictions. Mr. Carter characterizes the effect of counsel’s ineffec-tive representation as “pervasive”. I agree with that description, which Ithink is particularly apt in respect of trial counsel’s purported preparationfor trial.


48 For all practical purposes, the appellant was without the assistance ofcounsel at trial. The miscarriage of justice occasioned by the ineffectiverepresentation lies not only in its impact on the reliability of the verdicts,but also in its negative effect on the appearance of the fairness of thetrial. The latter concern can be adequately vindicated only by an orderquashing all of the convictions.

IV

CONCLUSION49 The appeal is allowed, the convictions are quashed and a new trial is

ordered on all counts, including the count on which the conviction wasstayed under the rule in Kienapple.

K. van Rensburg J.A.:

I agree

L.B. Roberts J.A.:

I agree

Appeal allowed.

R. v. Wasilewski 469

[Indexed as: R. v. Wasilewski]

Her Majesty the Queen (Appellant) And Cassandra Wasilewski(Respondent)

Saskatchewan Court of Appeal

Docket: CACR2683

2016 SKCA 112

Caldwell, Whitmore, Ryan-Froslie JJ.A.

Heard: June 17, 2016


Charter of Rights and Freedoms –––– Charter remedies [s. 24] — Exclusionof evidence –––– Warrantless search of cell phone five days after arrest of ac-cused not a serious violation because state of law uncertain and police acted onhonest and reasonable but mistaken belief that they had authority for search andimpact of search lessened by fact that warrant was obtainable.

Charter of Rights and Freedoms –––– Life, liberty and security of person [s.7] — Abuse of process –––– Despite lack of prosecutorial misconduct, stay oforder for new trial ordered because of court’s residual authority and because ofexpenditure of time and resources and restrictions on accused’s liberty andrights over four-year period.

Based on information from reliable informants, the police believed that C wasabout to buy a large quantity of marihuana. They observed C arrive at the homeof his supplier in a vehicle owned and operated by the accused. C went into thehome and returned carrying a plastic bag. The accused drove away but the policesurveillance team directed other officers to stop the vehicle. C and the accusedwere arrested. Detecting a strong odour of marihuana, the police found andseized the plastic bag that was discovered to contain marihuana. They alsoseized three cell phones, one of which belonged to the accused. The police per-formed a cursory search of the accused’s cell phone and then a more compre-hensive search five days later without obtaining a warrant. The data on thephone contained potentially inculpatory statements.

C and the accused were jointly charged with possession for the purpose of traf-ficking. However, they were tried separately. The accused was acquitted on herfirst trial but, on appeal, a new trial was ordered. At her second trial, a voir direwas conducted in respect of the cell phone. The trial judge held that the policehad not followed the requirements for a warrantless search of a cell phone as anincident of lawful arrest as set out in R. v. Fearon, 2014 SCC 77, on the basisthat the second search had not been truly as an incident of arrest. The trial judge


then ordered the exclusion of the evidence obtained from the cell phone. Whenthe trial continued, the Crown called an expert on drug crime investigations whotestified that the quantity of marihuana was indicative of a purpose to traffic. Healso testified that the marihuana would have a strong and distinctive odour. Thetrial judge held that he was not persuaded beyond a reasonable doubt that theaccused smelled the marihuana or, if she had, whether she knew it was mari-huana. He acquitted her on the footing of a reasonable doubt that she had knowl-edge of the marihuana. He also indicated that, if there had been no doubt abouther knowledge, he would have convicted of possession only because there wasno evidence that she knew how much marihuana was in the bag.

The Crown appealed the acquittal to the Saskatchewan Court of Appeal, seekingan order for a new trial. At the hearing of the appeal, the Crown conceded thatthere had been a violation of s. 8 by the warrantless search of the cell phone butargued that the trial judge had erred in his s. 24(2) decision to exclude the evi-dence. The Crown also argued that the trial judge had erred in having a reasona-ble doubt about whether the accused had smelled the marihuana.

Held: The appeal was allowed and a new trial ordered but stay of proceedingswas entered.

The trial judge erred in his assessment of the seriousness of the violation andthis led him to further err in the assessment of the impact of the breach on theaccused’s Charter-protected interests and the final balancing of the societal in-terest in having a trial on the merits. The breach was not as serious as found bythe trial judge because the police acted on their view of the law at the time, sometwo years before Fearon was decided. The police honestly and reasonably butwrongly thought that they had the authority to search the cell phone, there arecompelling reasons to search cell phones as an incident to a drug arrest, and,although the second search was not done promptly, there were reasons for thisand the search took place within days. Although the trial judge did not determinewhether the police had the grounds to obtain a warrant, it was difficult to con-clude that a warrant would not have been issued. The availability of a warrantaltered the assessment of the impact of the breach on the accused’s Charter-protected interests since the evidence was legally obtainable, thus lessening theimpact on her interests. Society’s interest in a trial on the merits weighed infavour of admitting the evidence because the data on the phone was reliable andessential to a determination on the merits.

The Crown had not acted in bad faith in seeking a third trial. However, an appel-late court has the inherent and residual discretion to stay a charge where furtherproceedings would constitute an abuse of process. The offence was at the lowend of the spectrum of severity for possession for the purpose of trafficking, theproceedings had already occupied a considerable amount of time and resources,a third trial would require additional time and resources, the accused had facedjeopardy for four years, and she had abided by restrictions on her liberty and her


rights through bail conditions. A third trial would exceed the limits of the com-munity’s sense of fair play.

Comment

The decision to admit the evidence in this case in spite of a violation of s. 8 ofthe Charter requires comment. It is true that, at the time of the search, there wasuncertainty in the law in respect of warrantless searches of cell phones as anincident of lawful arrest. Nevertheless, it is surely of some significance that thepolice conducted a more intrusive search five days after the arrest. As noted bythe trial judge and quoted by the Court of Appeal at para. 25, in that time theydid not consult with any prosecutor or higher authority to obtain advice.

Had the police sought advice, they might have been advised to seek a warrant.After all, the law at the time included R. v. Caslake (1998), 13 C.R. (5th) 1(S.C.C.), in which the Supreme Court held that an inventory search of a vehiclesome hours after an arrest violated s. 8. The Supreme Court did say that, in thatcase, the delay and place of the inventory search did not raise a concern but, atpara. 24, added:

"The temporal limits on search incident to arrest will also be derived from thesame principles. There is no need to set a firm deadline on the amount of timethat may elapse before the search can no longer said to be incidental to arrest. Asa general rule, searches that are truly incidental to arrest will usually occurwithin a reasonable period of time after the arrest. A substantial delay does notmean that the search is automatically unlawful, but it may cause the court todraw an inference that the search is not sufficiently connected to the arrest. Nat-urally, the strength of the inference will depend on the length of the delay, andcan be defeated by a reasonable explanation for the delay."In the s. 24(2) context, this should have reflected more on the seriousness of theviolation.

Moreover, although the trial judge did not determine whether a warrant couldhave been obtained, the Court of Appeal found that it would have been. TheCourt proceeded from that conclusion to hold that the police had acted in goodfaith. Yet, the likelihood that a warrant could have been obtained is a feature ofthe doctrine of discoverability that the Supreme Court cast doubt upon in R. v.Grant (2009), 66 C.R. (6th) 1 (S.C.C.), stating that it should no longer be deter-minative of admissibility. As Don Stuart, Charter Justice in Canadian CriminalLaw (6th ed.) (Toronto: Carswell, 2014), at 660, has put it:

There should be a catch-22 for Crown arguments about discoverabil-ity in that the reality police could have found the evidence withoutviolating the Charter surely makes the violation more serious.

Thus, the finding that a warrant was obtainable should have rendered the viola-tion more, not less, serious. It also should have increased, not diminished, the


impact of the breach on the accused’s Charter-protected privacy interests, con-trary to what the Court held at para. 30.

It is also possible to take issue with the Court’s comparison with the warrantobtained in R. v. Fearon, 2014 SCC 77 (S.C.C.). There, the police did obtain awarrant and, important to the Court’s decision to admit the evidence, was thatthe accused did not challenge the warrant itself, even though its issuance wasbased on their prior warrantless searches which the police had disclosed.

Tim Quigley

College of Law, University of Saskatchewan

Cases considered by Caldwell J.A.:

R. c. Cote (2011), 2011 SCC 46, 2011 CarswellQue 10407, 2011 CarswellQue10408, [2011] S.C.J. No. 46, 87 C.R. (6th) 1, 421 N.R. 112, (sub nom. R. v.Cote) [2011] 3 S.C.R. 215, (sub nom. R. v. Cote) 276 C.C.C. (3d) 42, (subnom. R. v. Cote) 342 D.L.R. (4th) 77, (sub nom. R. v. Cote) 246 C.R.R. (2d)213 (S.C.C.) — referred to

R. v. Adeshina (2015), 2015 SKCA 29, 2015 CarswellSask 178, [2015] S.J. No.157, 457 Sask. R. 35, 632 W.A.C. 35, 332 C.R.R. (2d) 320 (Sask. C.A.) —considered

R. v. Belyk (2014), 2014 SKCA 24, 2014 CarswellSask 134, [2014] S.J. No. 120,9 C.R. (7th) 400, 433 Sask. R. 195, 602 W.A.C. 195 (Sask. C.A.) — referredto

R. v. Cole (2012), 2012 SCC 53, 2012 CarswellOnt 12684, 2012 CarswellOnt12685, [2012] S.C.J. No. 53, D.T.E. 2012T-731, 96 C.R. (6th) 88, 223L.A.C. (4th) 1, 290 C.C.C. (3d) 247, 353 D.L.R. (4th) 447, 436 N.R. 102,2012 C.L.L.C. 210-059, 297 O.A.C. 1, [2012] 3 S.C.R. 34, 269 C.R.R. (2d)228, 128 O.R. (3d) 639 (note) (S.C.C.) — referred to

R. v. Cullen (1949), [1949] S.C.R. 658, 8 C.R. 141, 94 C.C.C. 337, [1949] 3D.L.R. 241, 1949 CarswellOnt 7 (S.C.C.) — considered

R. v. Fearon (2014), 2014 SCC 77, 2014 CSC 77, 2014 CarswellOnt 17202,2014 CarswellOnt 17203, [2014] S.C.J. No. 77, [2014] A.C.S. No. 77, 15C.R. (7th) 221, 465 N.R. 205, [2014] 3 S.C.R. 621, 318 C.C.C. (3d) 182, 326O.A.C. 1, 9 A.L.R. Int’l 547, 385 D.L.R. (4th) 211, 323 C.R.R. (2d) 307,129 O.R. (3d) 479 (note) (S.C.C.) — followed

R. v. Grant (2009), 2009 SCC 32, 2009 CarswellOnt 4104, 2009 CarswellOnt4105, 66 C.R. (6th) 1, [2009] S.C.J. No. 32, [2009] A.C.S. No. 32, 245C.C.C. (3d) 1, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 391 N.R. 1, 253O.A.C. 124, [2009] 2 S.C.R. 353, 193 C.R.R. (2d) 1, 97 O.R. (3d) 318(note), EYB 2009-161617 (S.C.C.) — followed

R. v. Hinse (1995), 44 C.R. (4th) 209, 102 C.C.C. (3d) 289, 130 D.L.R. (4th) 54,42 C.P.C. (3d) 261, 189 N.R. 321, [1995] 4 S.C.R. 597, 1995 CarswellQue169, 1995 CarswellQue 186, EYB 1995-67893, [1995] S.C.J. No. 97, [1994]C.S.C.R. No. 388 (S.C.C.) — referred to


R. v. Jewitt (1985), [1985] 2 S.C.R. 128, [1985] 6 W.W.R. 127, 20 D.L.R. (4th)651, 61 N.R. 159, 21 C.C.C. (3d) 7, 47 C.R. (3d) 193, 1985 CarswellBC813, [1985] S.C.J. No. 53, 1985 CarswellBC 743 (S.C.C.) — referred to

R. v. Keyowski (1988), 83 N.R. 296, [1988] 1 S.C.R. 657, [1988] 4 W.W.R. 97,65 Sask. R. 122, 40 C.C.C. (3d) 481, (sub nom. Keyowski v. R.) 62 C.R. (3d)349, 32 C.R.R. 269, 1988 CarswellSask 273, 1988 CarswellSask 463, EYB1988-67943, [1988] S.C.J. No. 28 (S.C.C.) — considered

R. v. O’Connor (1995), [1996] 2 W.W.R. 153, [1995] 4 S.C.R. 411, 44 C.R.(4th) 1, 103 C.C.C. (3d) 1, 130 D.L.R. (4th) 235, 191 N.R. 1, 68 B.C.A.C. 1,112 W.A.C. 1, 33 C.R.R. (2d) 1, 1995 CarswellBC 1098, 1995 CarswellBC1151, [1995] S.C.J. No. 98, EYB 1995-67073 (S.C.C.) — referred to

R. v. Potvin (1993), 23 C.R. (4th) 10, 155 N.R. 241, 83 C.C.C. (3d) 97, [1993] 2S.C.R. 880, 16 C.R.R. (2d) 260, 105 D.L.R. (4th) 214, 66 O.A.C. 81, 1993CarswellOnt 112, 1993 CarswellOnt 985, EYB 1993-67509, [1993] S.C.J.No. 63 (S.C.C.) — referred to

R. v. Power (1994), 2 M.V.R. (3d) 161, [1994] 1 S.C.R. 601, 89 C.C.C. (3d) 1,117 Nfld. & P.E.I.R. 269, 365 A.P.R. 269, 165 N.R. 241, 29 C.R. (4th) 1,1994 CarswellNfld 9, 1994 CarswellNfld 278, [1994] S.C.J. No. 29, EYB1994-80059 (S.C.C.) — referred to

R. v. Regan (2002), 2002 SCC 12, 2002 CarswellNS 61, 2002 CarswellNS 62,161 C.C.C. (3d) 97, 209 D.L.R. (4th) 41, 282 N.R. 1, 49 C.R. (5th) 1, [2002]S.C.J. No. 14, 201 N.S.R. (2d) 63, 629 A.P.R. 63, 91 C.R.R. (2d) 51, [2002]1 S.C.R. 297, REJB 2002-27926 (S.C.C.) — referred to

R. v. Ryan (2013), 2013 SCC 3, 2013 CarswellNS 7, 2013 CarswellNS 31,[2013] S.C.J. No. 3, 290 C.C.C. (3d) 477, 353 D.L.R. (4th) 387, 98 C.R.(6th) 223, 438 N.R. 80, 1029 A.P.R. 205, 324 N.S.R. (2d) 205, 275 C.R.R.(2d) 241, [2013] 1 S.C.R. 14 (S.C.C.) — considered

R. v. Vu (2013), 2013 SCC 60, 2013 CarswellBC 3342, 2013 CarswellBC 3343,[2013] S.C.J. No. 60, 6 C.R. (7th) 1, 302 C.C.C. (3d) 427, 365 D.L.R. (4th)601, 451 N.R. 199, 345 B.C.A.C. 155, 589 W.A.C. 155, [2013] 3 S.C.R. 657(S.C.C.) — referred to

R. v. Wasilewski (2014), 2014 SKCA 138, 2014 CarswellSask 844, [2014] S.J.No. 756, 451 Sask. R. 97, 628 W.A.C. 97 (Sask. C.A.) — referred to



Generally — referred tos. 8 — considereds. 24(1) — considereds. 24(2) — considered

Controlled Drugs and Substances Act, S.C. 1996, c. 19s. 5(2) — referred to


Criminal Code, R.S.C. 1985, c. C-46s. 686(4)(b)(ii) — referred tos. 686(8) — considered

APPEAL by Crown from acquittal of accused on drug related charges.

Wade E. McBride, for AppellantRobert F. Feist, for Respondent

Caldwell J.A.:

I. INTRODUCTION1 The federal Crown seeks a third trial on the charge that Cassandra

Wasilewski did possess cannabis marihuana in an amount not exceedingthree kilograms for the purpose of trafficking, contrary to s. 5(2) of theControlled Drugs and Substances Act, SC 1996, c 19. Judges of the Pro-vincial Court of Saskatchewan have twice acquitted Ms. Wasilewski onthat charge (the first being set aside by: R. v. Wasilewski, 2014 SKCA138, 451 Sask. R. 97 (Sask. C.A.)).

2 In its notice of appeal, the Crown says the second trial judge erredwhen he ruled the search of Ms. Wasilewski’s cell phone had not beenincident to her arrest and then erred again by excluding the evidence ob-tained from that search under s. 24(2) of the Charter. In the hearingbefore us, the Crown conceded the s. 8 breach and focused on allegederrors in the trial judge’s analysis under s. 24(2) of the Charter. TheCrown submits, absent these errors, the evidence would have been admit-ted and the verdict would very likely have been different. It thereforerequests that this Court set aside the acquittal and order a new trial.

3 For the reasons below, I would allow the Crown’s appeal. However,given the particular circumstances of this matter, I would exercise theCourt’s residual discretion to stay the charge against Ms. Wasilewski.

II. BACKGROUND4 Based on information from reliable informants, the RCMP in North

Battleford came to believe that Darryl Allon Chartier was about to buy alarge quantity of marihuana. They observed Mr. Chartier as he arrived atthe residence of his supplier, Myron Michael Joseph Belyk (see R. v.Belyk, 2014 SKCA 24, 433 Sask. R. 195 (Sask. C.A.)), in a vehicle theylater learned was owned, and was then being operated by, Ms. Wasilew-ski. The police observed Mr. Chartier exit the vehicle, enter the residence

R. v. Wasilewski Caldwell J.A. 475

and return minutes later carrying a grey plastic bag. Ms. Wasilewski thendrove her vehicle away with Mr. Chartier in it. Ms. Wasilewski was notthen known to the police.

5 Believing Mr. Chartier had just obtained marihuana, the surveillanceteam directed an officer in a marked RCMP cruiser to stop Ms. Wasilew-ski’s vehicle. Two of the surveillance officers then approached the vehi-cle and one of them arrested Ms. Wasilewski while the other arrested Mr.Chartier. The officer who arrested Mr. Chartier detected a strong odourof raw marihuana and observed the grey plastic bag near Mr. Chartier’sfeet. A subsequent search of the bag disclosed a sealed Ziploc bag thatcontained about 220 grams of marihuana. The RCMP also seized threecell phones, one of which was a red iPhone that ostensibly belonged toMs. Wasilewski. The RCMP conducted a “cursory” search of the iPhoneat the time of the arrests and, about five days later, the RCMP conducteda more comprehensive search of the iPhone — without obtaining a war-rant — and made a written record of the text messages and photos on it.The data retrieved by the RCMP included several potentially inculpatorystatements.

6 The RCMP charged Mr. Chartier and Ms. Wasilewski under the sameinformation with possession of marihuana for the purpose of trafficking,but the two were tried separately.

7 At Ms. Wasilewski’s trial, the RCMP officer who had searched theiPhone testified that many of the 2,800 photos on it were of Ms. Wasi-lewski and so he presumed it was hers; but, the Crown led no direct evi-dence of ownership of the iPhone. Nevertheless, Ms. Wasilewski tookthe position she held privacy rights with respect to the iPhone. Shesought to exclude the evidence obtained through the search of it pursuantto s. 24(2) of the Charter.

8 The trial judge conducted a voir dire on the matter in which he fol-lowed the decision in R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621(S.C.C.), even though that decision had come down two years after thearrests in this case. The trial judge found the second search of the iPhonehad not been truly incident to arrest. On the whole of his analysis, thetrial judge was not satisfied the search had been conducted for one of thevalid law enforcement purposes identified in R. v. Fearon. He thereforeruled it was not a search truly incident to arrest and had thereby violateds. 8 of the Charter. Although the Crown’s notice of appeal impugns thetrial judge’s conclusion in this regard, the Crown did not pursue that ave-nue of appeal.


9 When the trial judge turned to s. 24(2) of the Charter to considerwhether the admission of the evidence obtained by the illegal searchwould bring the administration of justice into disrepute, he did so follow-ing the framework for analysis called for in R. v. Grant, 2009 SCC 32,[2009] 2 S.C.R. 353 (S.C.C.). Under the first arm of the R. v. Grantframework — the seriousness of the Charter-infringing state conduct —the trial judge acknowledged the law had been in a state of flux at thetime of the search. But, he tempered this by observing the RCMP had notconducted their search until about five days after the arrests and seizuresand had done so without seeking or obtaining warrants or legal advice asto the legality of such searches. He reiterated his conclusion under hisearlier breach analysis that the RCMP had conducted the search of theiPhone to obtain evidence implicating Ms. Wasilewski, i.e., to show thatshe had known Mr. Chartier had attended at Mr. Belyk’s house to obtaindrugs for resale. He cast aspersions on this approach because Ms. Wasi-lewski was unknown to the RCMP and had been a very minor player inthe scheme of things; whereas, Mr. Chartier was a known drug dealerwho was at the centre of the RCMP surveillance. The trial judge ob-served he had no evidence upon which to conclude Ms. Wasilewski actu-ally owned the iPhone.

10 At root, the trial judge remarked that the breach would have been lessserious if the RCMP had focused on searching Mr. Chartier’s cell phonesfirst and, once a nexus had been established between Mr. Chartier’s ille-gal activities and Ms. Wasilewski, the RCMP would have had bettergrounds to search the iPhone; moreover, a warrant to do so would havebeen obtainable. The trial judge then said:

As it stands now on the information and the evidence before me, Ican’t — I can’t say that a warrant would have been obtainable to al-low the search of her phone. This isn’t determinative of the matter orof the issue, but it does go to the seriousness of the conduct of thestate in breaching the accused’s Charter right.

11 The trial judge went on, under the second arm of the R. v. Grant anal-ysis, to find that, because cell phones generally contain a great deal ofpersonal and private information about their owners, the impact of theCharter-infringing state conduct on Ms. Wasilewski’s privacy rights hadbeen serious. He observed that individuals have a “valid and real expec-tation of privacy” in the information contained on their cell phones andother electronic devices.


12 Under the third arm of the R. v. Grant framework, the trial judgerecognised the public’s “great interest” in having drug-trafficking casestried on their merits. But, he distinguished Ms. Wasilewski’s circum-stances from those of Mr. Chartier and Mr. Belyk, saying society’s inter-ests in adjudicating her case on its merits did not outweigh the serious-ness of the Charter breach. That is, he appears to have concluded, sinceMs. Wasilewski had played such a minor role in a drug-trafficking opera-tion, society had a lesser interest in having her case adjudicated on itsmerits.

13 On balancing the individual and societal interests engaged in thesecircumstances, the trial judge concluded the administration of justicewould be brought into disrepute if the evidence obtained from the iPhonesearch were admitted. Therefore, he ended the voir dire by excluding thatevidence from the trial.

14 When the trial continued, the Crown called an expert on drug crimeinvestigations who said the quantity of marihuana seized by the RCMPwas consistent with an intention to traffic and inconsistent with personalconsumption. The Crown’s expert said cannabis marijuana has a strongand distinctive odour. Under cross-examination, the Crown’s expertnoted a number of factors that could affect olfactory detection of thatodour.

15 In reaching his verdict, the trial judge was not persuaded beyond areasonable doubt that Ms. Wasilewski had smelled the marijuana. Whileaccepting that an arresting officer had detected the odour, the trial judgedid not accept that Ms. Wasilewski had smelled it. He said that, even ifshe had smelled it, he was not persuaded she had known what it was. Forthese reasons, the trial judge acquitted Ms. Wasilewski — i.e., it was notproven beyond a reasonable doubt that she had knowledge of the mari-huana and, therefore, that she had constructive possession of it. Moreo-ver, the trial judge was of the view that, even if Ms. Wasilewski hadsmelled the marijuana and had known what it was — and that it wastherefore in her possession — the evidence before him would have re-stricted him to convicting her for simple possession because there was noevidence she knew how much marijuana had been in the grey plastic bag.

III. ISSUES16 The Crown maintains two grounds in its appeal from Ms. Wasilew-

ski’s acquittal. First, the Crown says the trial judge erred in his s. 24(2)Charter analysis under the R. v. Grant framework and thereby errone-


ously excluded the evidence illegally obtained from the iPhone. Second,the Crown says the trial judge erred in law when he concluded the Crownhad not proven beyond a reasonable doubt that Ms. Wasilewski hadsmelled the marihuana because that finding of fact was based on specula-tion and had no foundation on the evidence. In remedy of this, the Crownseeks a third trial on the charge of possession of marihuana for the pur-pose of trafficking.

17 Given my conclusions below on the allegations of error under s.24(2), I need not address the second leg of the Crown’s appeal, dealingwith the trial judge’s finding of reasonable doubt.

IV. R. v. Grant FRAMEWORK18 The Crown’s allegations of error under s. 24(2) of the Charter line up

with the framework for that analysis established in R. v. Grant, underwhich trial courts assess whether a Charter breach would bring the ad-ministration of justice into disrepute. The R. v. Grant framework in-volves three lines of inquiry:

(a) the seriousness of the Charter-infringing state-conduct;

(b) the impact upon the Charter-protected interests engaged by thebreach; and

(c) the societal interest in having criminal matters adjudicated on theirmerits.

In rough summary, this framework calls for trial courts to assess “all thecircumstances”, balancing individual and societal interests arising underthese three lines of inquiry, to gauge whether the admission of illegally-obtained evidence would bring the administration of justice into disre-pute (at para 71). On the whole of it, the Court in R. v. Grant said:

... As a general rule, however, it can be ventured that where reliableevidence is discovered as a result of a good faith infringement thatdid not greatly undermine the accused’s protected interests, the trialjudge may conclude that it should be admitted under s. 24(2). On theother hand, deliberate and egregious police conduct that severely im-pacted the accused’s protected interests may result in exclusion, not-withstanding that the evidence may be reliable.

[at para 127]

19 In this appeal, the Crown has asserted the trial judge erred in threeways:


(a) by characterizing the Charter-infringing conduct as serious —when the RCMP had simply done something they reasonably be-lieved was lawful, albeit subsequent developments in the lawshows them to have been incorrect, i.e., the Crown says the war-rantless search was an honest mistake, reasonably made;

(b) by finding the s. 8 breach had had a significant impact on Ms.Wasilewski’s Charter-protected interests — when the RCMP hadbelieved its conduct was lawful and the evidence was otherwisediscoverable by lawful means; and

(c) by finding the combined effect of the nature of the police miscon-duct and the minor role Ms. Wasilewski played in the commissionof the offence outweighed society’s interest in seeing the matteradjudicated on the merits.

20 When it comes to an appeal against a trial court’s conclusion under s.24(2) of the Charter, given the number and breadth of the variables po-tentially at play under the R. v. Grant framework, if the trial court hasconsidered the proper factors and has not made any unreasonable find-ings, the trial court’s balancing of interests under s. 24(2) attracts a goodmeasure of deference: R. v. Grant at para 86; R. v. Cole, 2012 SCC 53(S.C.C.) at para 82, [2012] 3 S.C.R. 34 (S.C.C.); R. c. Cote, 2011 SCC46 (S.C.C.) at para 44, [2011] 3 S.C.R. 215 (S.C.C.). Nevertheless,where the trial court has overlooked a relevant factor or made an error,the appellate court may undertake its own s. 24(2) analysis, but it mustdo so on the basis of the trial court’s findings that were not tainted byerror (R. v. Vu, 2013 SCC 60 (S.C.C.) at para 67, [2013] 3 S.C.R. 657(S.C.C.); R. v. Adeshina, 2015 SKCA 29 (Sask. C.A.) at para 25, (2015),457 Sask. R. 35 (Sask. C.A.)).

V. ANALYSIS21 In this case, I find the trial judge erred in his assessment of the seri-

ousness of the Charter-infringing state conduct and this led him to fur-ther err in his assessment of the impact of that breach on Ms. Wasilew-ski’s Charter-protected interests and in the final balancing of theinterests engaged on the facts of this case. On the whole of it, these errorsare manifest because the result under s. 24(2) of the Charter in this caseis incongruous with the results in R. v. Fearon and R. v. Adeshina, bothof which involved circumstances very similar to those now before theCourt.


22 In R. v. Fearon, Cromwell J., who wrote for the majority of the Su-preme Court, addressed the seriousness of Charter-infringing conduct incircumstances where the police had searched a cell phone incident to ar-rest, having then held a reasonable belief that their actions were lawful:

[93] The trial judge’s summary of the state of the law at the time ofthe search is a fair one, in my view. At the time, the decision mostfavourable to the appellant’s position was that of the Ontario Supe-rior Court of Justice in Polius, but it was issued only slightly morethan a month before the search and it contemplated “cursory”searches of cell phones incident to arrest: paras. 39 ff. (I note that R.v. Finnikin, 2009 CanLII 82187 (Ont. S.C.J.), to which the trial judgereferred, was decided several months after the search in this case.) Asthe trial judge pointed out, there were cases at the time approving cellphone searches incident to arrest. In fact, it is fair to say that this wasthe dominant view at the time of the arrest. The Court of Appeal’sunanimous decision upholding the legality of the search in this casesupports the conclusion that the officer’s view of the law was reason-able. The officer’s subsequent conduct in obtaining the warrantwhich fully disclosed the earlier searches supports the trial judge’sconclusion that the police acted in good faith.

[94] Of course, the police cannot choose the least onerous path when-ever there is a gray area in the law. In general, faced with real uncer-tainty, the police should err on the side of caution by choosing acourse of action that is more respectful of the accused’s potential pri-vacy rights. But here, if the police faced a gray area, it was a verylight shade of gray, and they had good reason to believe, as they did,that what they were doing was perfectly legal.

[95] In my view, the first factor favours admission of the evidence.There is not here even a whiff of the sort of indifference on the partof the police to the suspect’s rights that requires a court to disassoci-ate itself from that conduct. The police simply did something thatthey believed on reasonable grounds to be lawful and were provenwrong, after the fact, by developments in the jurisprudence. That isan honest mistake, reasonably made, not state misconduct that re-quires exclusion of evidence.

[Emphasis added]

23 In this way, Cromwell J. clearly placed the state misconduct that hadoccasioned the s. 8 Charter breach in R. v. Fearon on the lower end ofthe spectrum of severity. At that end of the spectrum, admitting evidenceobtained through inadvertent or minor violations of the Charter mayminimally undermine public confidence in the rule of law. At the other


end, admitting evidence obtained through a wilful or reckless disregardof Charter rights will inevitably have a negative effect on public confi-dence in the rule of law. That is, Charter violations falling on the upperend of the spectrum risk bringing the administration of justice into disre-pute; whereas, “good faith” on the part of the state reduces the need forcourts to disassociate themselves from the state misconduct.

24 This Court was later called upon to consider the effect of the uncer-tain state of the law prior to R. v. Fearon on the seriousness of a Charter-infringing cell phone search in R. v. Adeshina. There too, Richards C.J.S.placed the state conduct giving rise to a breach of s. 8 — which wasnearly identical to the one at hand — on the lower end of the spectrum ofseverity:

[29] Turning to the seriousness of Constable Scherlie’s Charter-in-fringing conduct, we conclude that the breach in issue here was notserious. This is so for several reasons. First, at the time of the breach,the law in this area was quite unsettled and unclear. See: R v Fearon,2014 SCC 77 at paras 92-93, [2014] 3 SCR 621 [Fearon]. Second,and relatedly, Constable Scherlie honestly believed (wrongly as itturns out) that he had lawful authority to conduct the searches inquestion. He acted in a manner consistent with the general policy ofthis detachment on such matters. This is not a case of a deliberatebreach of an accused’s Charter rights. Third, there are compellingreasons to search cellphones in connection with drug arrests andthere is no doubt that Constable Scherlie could have obtained a war-rant if he had sought one. See: Fearon at para. 48. Fourth, althoughthe forensics examination here took place some months after Mr.Adeshina’s arrest, Constable Scherlie offered a reasonable explana-tion for the delay.

25 In the matter now before the Court, even though he recognised thelaw had been in the same state of flux as it had been in R. v. Fearonand R. v. Adeshina, the trial judge did not give any effect to that factor inhis analysis of the seriousness of the illegal search. Critically, I note that,when applying R. v. Fearon in addressing whether a breach had oc-curred, the trial judge had accepted the RCMP officer’s testimony to theeffect that “he did not believe he needed a warrant and that he couldsearch the phone incident to arrest of the accused.” However, when hecame to analyse the circumstances under s. 24(2), the trial judge drovepast this finding to consider matters that were inconsistent with it,


thereby reaching a conclusion inconsistent with the decisions in R. v.Fearon and R. v. Adeshina:

That doesn’t end the matter. I must now conduct a Grant analysis.Under this analysis in R v Grant, 2009 2 SCR 353, I must first con-sider the seriousness of the Charter - infringing state conduct. In con-sidering this, I do take into consideration the law was in a state offlux at the time of this incident in July 2012, but I also consider thatthe search was not conducted for about 5 days after the arrest andseizure, that no warrant was sought or obtained, no advice wassought from a federal drug prosecutor or any prosecutor or other per-son in higher authority, that the accused’s phone was searched firsteven though she was not a primary suspect and had no criminal re-cord, and that the evidence on the voir dire and the trial leads me tobelieve the search was conducted to get evidence to show that sheknew Chartier’s purpose in attending Belyk’s house was to purchasedrugs for resale.

Had there have been a real concern or suspicion that she was a majorplayer or even a minor or medium player in the drug operation, Ican’t help but think the two cell phones strongly believed to belongto the known drug seller Chartier would have been searched first forinformation including the possible contacts, names and contact infor-mation. That simply wasn’t done. Indeed, had that have been done,there may well have been a strong nexus between the known drugdealer’s operation and Ms. Wasilewski, but as it stands now, I don’teven know the cell phone numbers of any of the three phones seizedout of Mr. — Ms. Wasilewski’s vehicle. I don’t know whether anywere registered with a phone company. But what I must consider isthat if the two phones thought to belong to Chartier had been ex-amined first and a nexus was shown to exist with the phone belong-ing to Wasilewski, the seriousness of the Charter-infringing stateconduct would have been lessened. Indeed a search warrant wouldhave been obtainable.

As it stands now on the information and the evidence before me, Ican’t — I can’t say that a warrant would have been obtainable to al-low the search of her phone. This isn’t determinative of the matter orof the issue, but it does go to the seriousness of the conduct of thestate in breaching the accused’s Charter right.

[T169-T170]

26 But, on the basis of the facts as found by the trial judge, I am unableto see any material difference between this case and R. v. Fearon or R. v.Adeshina. All of the factors identified by Richards C.J.S. as demarking a“not serious” breach in R. v. Adeshina line up with the factors present in


this case: (i) the law was unsettled; (ii) the police honestly believed(wrongly, as it turns out) they had lawful authority to conduct the searchin question; (iii) there are compelling reasons to search cell phones inci-dent to drug arrests (see R. v. Fearon); albeit, the trial judge could notsay the RCMP would have obtained a warrant if they had sought one, helikewise did not conclude a warrant would not have issued had one beensought; and (iv) the search was not conducted “promptly” — as the trialjudge found — but there were reasons given for this and it took placewithin mere days of Ms. Wasilewski’s arrest — not months, as had beenthe case in R. v. Adeshina. Given these parallels, the trial judge wasobliged to distinguish R. v. Fearon and R. v. Adeshina if he believed adifferent result was warranted in the circumstances of this case.

27 That being so, the only factor that might have served to distinguishthis case is the availability or unavailability of a warrant. In R. v. Fearon,the police had obtained a warrant, albeit months after the initial searches,but the fact they had fully disclosed the prior warrantless searches whenobtaining the warrant substantiated their good faith in conducting them(at para 93). In R. v. Adeshina, Richards C.J.S. relied on statements madein R. v. Fearon to conclude there was “no doubt” a warrant would havebeen issued in the circumstances, had one been sought (at para 29). Inthis case, however, the trial judge concluded he could not say a warrantwould have been obtainable. While he had observed there were ways theRCMP could have obtained better grounds to obtain a warrant, critically,he did not conclude a warrant was not obtainable in the circumstances.While the availability of a warrant is certainly a relevant factor, it is diffi-cult to place much weight on it without a clear finding as to the availabil-ity or unavailability of a search warrant in the circumstances of a case.Moreover, like Richards C.J.S. on the basis of the reasons given byCromwell J. in R. v. Fearon (at paras 48-49) and on the basis of theevidence adduced at trial and on the voir dire, I am hard-pressed to con-clude a search warrant would not have been granted in the circumstancesof this case.

28 For these reasons, I find nothing on the facts distinguishes this casefrom R. v. Fearon or R. v. Adeshina — which is to say the evidence inthis case does not support the trial judge’s conclusion that the miscon-duct in question was serious. I find, therefore, the trial judge erred whenhe determined the illegal search of the iPhone was a serious breach ofMs. Wasilewski’s rights under s. 8 of the Charter.


29 For the purposes of the R. v. Grant framework, I interpret the trialjudge’s reasons as essentially concluding the RCMP had conducted asearch they believed on reasonable grounds to be lawful. The fact theRCMP were proven wrong two years later by R. v. Fearon does not ele-vate the seriousness of the Charter-infringing state conduct in this case. Ifind their mistake was an honest one, reasonably made.

30 The availability of a warrant in the circumstances also alters the fac-tual matrix that underpinned the trial judge’s assessment of the impact ofthe breach on Ms. Wasilewski’s Charter-protected privacy interests. Itdoes so because the evidence illegally obtained by the RCMP was legallyobtainable, had they sought a warrant. This lessens the seriousness of theimpact of the illegal search on Ms. Wasilewski’s Charter-protected pri-vacy interest in the contents of the iPhone.

31 Finally, under the third arm of the R. v. Grant framework, I find soci-ety’s interest in a trial on the merits weighs in favour of admitting theevidence illegally obtained by the RCMP in this case. The data retrievedfrom the iPhone was reliable evidence and was essential to a determina-tion on the merits. Nevertheless, I find no fault with the trial judge’s as-sessment, in his balancing of this factor, that the relative seriousness ofthe offence that Ms. Wasilewski was charged with committing weighedin favour of excluding the evidence.

32 On the whole of the circumstances that were before the trial judge, Ifind the long-term repute of the administration of justice would be dam-aged by excluding the evidence in this case. Moreover, I am satisfiedthat, had the evidence been available at trial, the verdict might well havebeen different. For that reason, I would grant the Crown’s appeal on thebasis that the trial judge erred in his analysis under s. 24(2) of theCharter.

33 Given the Crown has sought a new trial, I will not address theCrown’s alternative grounds of appeal.

34 I turn now to address the appropriate remedy in this case.

VI. REMEDY35 To be clear, there is no evidence before this Court to suggest in any

way that the federal Crown has acted other than in good faith in its prose-cution of the charge against Ms. Wasilewski. Nothing improper occurredhere. After each trial, the Crown, having identified legal errors that un-dermined an acquittal, appealed to this Court and we confirmed errorshad occurred that called the acquittal into question. When this Court


makes findings of that nature, we are bound by law to allow the Crown’sappeal, to set aside the acquittal and to order a new trial (s. 686(4)(b)(ii)of the Criminal Code, RSC 1985, c C-46). We must do that unless we arein a position to enter a verdict of guilty (s. 686(4)(b)(ii)) — a position weare decidedly not in in this case. We have no discretion to decline toallow an appeal in these circumstances: R. v. Power, [1994] 1 S.C.R. 601(S.C.C.) at 619-623.

36 That said, this Court retains an inherent and residual discretion to staya charge where further proceedings would constitute an abuse of process(see: R. v. Power at 615-619; R. v. Hinse, [1995] 4 S.C.R. 597 (S.C.C.) at617-618; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 (S.C.C.); R. v.Jewitt, [1985] 2 S.C.R. 128 (S.C.C.) at 136-137) and there exists aresidual order power to do so under s. 686(8) of the Criminal Code(see: R. v. Hinse at 619-620). Further, it is important to recall that thismatter came before us because Ms. Wasilewski had applied for reliefunder s. 24(1) of the Charter on the basis that her rights had been in-fringed. The trial judge found a breach of s. 8 of the Charter and theCrown has conceded that point. While a breach of this nature generallygives rise to a remedy under s. 24(2), the Court nevertheless retains thepower to grant “such remedy as the court considers appropriate and justin the circumstances” under s. 24(1) of the Charter, which includes astay of proceedings (see: R. v. Potvin, [1993] 2 S.C.R. 880 (S.C.C.) at915-916; R. v. O’Connor, [1995] 4 S.C.R. 411 (S.C.C.) at 455-462).

37 One circumstance of this case — which was not before the trial judgebut which now looms large in this Court when it comes to the issue ofremedy — is that, if the relief sought by the Crown is granted, Ms. Wasi-lewski could be placed in jeopardy for a third time on the same charge,on the same evidence. In this respect, albeit he wrote in dissent in R. v.Cullen, [1949] S.C.R. 658 (S.C.C.) at 668, Rand J.’s observations areapt:

At the foundation of criminal law lies the cardinal principle that noman shall be placed in jeopardy twice for the same matter and thereasons underlying that principle are grounded in deep social in-stincts. It is the supreme invasion of the rights of an individual tosubject him by the physical power of the community to a test whichmay mean the loss of his liberty or his life; and there is a basic repug-nance against the repeated exercise of that power on the same factsunless for strong reasons of public policy. ...

38 Nevertheless, this is not simply a matter of adding up the number oftrials, finding it abusive and imposing a stay. In R. v. Keyowski, [1988] 1


S.C.R. 657 (S.C.C.), when dismissing an appeal taken from a decision ofthis Court allowing a third trial, Wilson J., who spoke for a unanimousSupreme Court, said:

The issue in this appeal is whether the appellant Keyowski shouldstand trial for a third time on a charge of criminal negligence causingdeath. His first two trials ended with the jury failing to agree on averdict. A third trial was stayed by the trial judge on the grounds thatit would constitute both an abuse of process and a violation of s. 7 ofthe Canadian Charter of Rights and Freedoms. The Crown’s appealwas allowed by a majority of the Saskatchewan Court of Appeal ((1986), 49 Sask. R. 64) and a new trial ordered. Bayda C.J.S. dis-sented. This is an appeal as of right.

The availability of a stay of proceedings to remedy an abuse of pro-cess was confirmed by this Court in R. v. Jewitt, [1985] 2 S.C.R. 128.On that occasion the Court stated that the test for abuse of processwas that initially formulated by the Ontario Court of Appeal in R. v.Young (1984), 40 C.R. (3d) 289. A stay should be granted where“compelling an accused to stand trial would violate those fundamen-tal principles of justice which underlie the community’s sense of fairplay and decency”, or where the proceedings are “oppressive or vex-atious” ([1985] 2 S.C.R. at pp. 136-37). The Court in Jewitt alsoadopted “the caveat added by the Court in Young that this is a powerwhich can be exercised only in the ‘clearest of cases’” (p. 137).

The legal issue on the appeal is a very narrow one, namely whether aseries of trials could per se constitute an abuse of process or whetherit is necessary for the accused to show prosecutorial misconduct. Themajority of the Court of Appeal expressed the view that the accusedhad to establish prosecutorial misconduct. Vancise J.A., writing forthe majority, stated at p. 68:

In the absence of evidence that the legal officers of theCrown were guilty of prosecutorial misconduct or pro-ceeded for [sic] some ulterior motive, in short that theproceedings were oppressive, the continuation of the trialon the indictment is not an abuse of process.

To define “oppressive” as requiring misconduct or an improper mo-tive would, in my view, unduly restrict the operation of the doctrine.In this case, for example, where there is no suggestion of misconduct,such a definition would prevent any limit being placed on the numberof trials that could take place. Prosecutorial misconduct and impropermotivation are but two of many factors to be taken into account whena court is called upon to consider whether or not in a particular case


the Crown’s exercise of its discretion to re-lay the indictmentamounts to an abuse of process.

While I disagree with the majority of the Court of Appeal thatprosecutorial misconduct must be demonstrated in order to give riseto an abuse of process, I nevertheless agree with their conclusion thata new trial was properly ordered in this case. The appellant has, inmy view, failed to demonstrate that this is one of those “clearest ofcases” which would justify a stay. The charge is a serious one. Theproceedings have not occupied an undue amount of time. The ac-cused has not been held in custody, and, while he has undoubtedlysuffered substantial trauma and stigma from the proceedings and theattendant publicity, he is probably not distinguishable in this respectfrom the vast majority of accused. A third trial may, indeed, stretchthe limits of the community’s sense of fair play but does not of itselfexceed them. In these circumstances, and having regard to the seri-ousness of the charge, I think that the administration of justice is bestserved by allowing the Crown to proceed with the new trial.

[pages 658-660]

39 As noted, there is no suggestion of prosecutorial misconduct in thiscase. Rather, to its credit, the Crown on appeal has generally recognisedthe circumstances for what they are and has now all but acceded to theapproach taken in R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14 (S.C.C.),where the Supreme Court found the appellate court had erred in law byupholding an acquittal, but concluded it would not be fair to subject theaccused to another trial and, therefore, imposed a stay of proceedings inthe interest of justice. And, in my assessment, that is what must occurhere too.

40 The circumstances in this case are these: (i) an offence, if made outon the evidence, that falls on the low end of the spectrum of severity foroffences contrary to s. 5(2) of the Controlled Drugs and Substances Act;(ii) proceedings that have already occupied a considerable amount oftime and resources on the part of the federal Crown, the accused and theProvincial Court; (iii) a third trial on this offence would require an addi-tional expenditure of time and resources that would be undue given therelative severity of the offence; (iv) while I might place different empha-sis on this than Wilson J. did in R. v. Keyowski, the accused has spentfour years under the cloud of these proceedings with attendant publicityin her home town; and (v) while the accused was not held in custody, shewas originally released into the community on July 6, 2012, followingher arrest (until after her first trial on October 15, 2013) on an undertak-


ing that, by its plain terms, imposed not insignificant restrictions on herliberty and her rights, namely, conditions prohibiting her from:

(a) traveling “beyond a 40 km radius of her residence without the ex-press written permission of the NCO” in charge of the North Bat-tleford RCMP detachment or his delegate — amended on January10, 2013, to an undertaking to remain in Saskatchewan;

(b) entering “any premises in which the primary function is the sale orconsumption of alcohol” (emphasis added); and

(c) having “in her possession a cellular telephone or pager” —amended January 10, 2013, to an undertaking to “submit to asearch of any cell phone you may possess, up to four times permonth, without warrant or reasonable or probable grounds, forwhich purpose the police (a peace officer) may have the cellphone in their possession for up to 4 hours”;

and conditions requiring her to:

(d) “submit to the demand of any peace officer to search for non-pre-scription drugs and/or drug paraphernalia without reasonablegrounds and without warrant; her person and/or clothing; any ve-hicle that she owns, operates or controls; any premises in whichshe is residing or other location that she owns, operates or con-trols. Such searches not to be more than four times a month.”; and

(e) “abide by a curfew between the hours of 11:00 p.m. and 7:00 a.m.daily” — amended on August 21, 2013, to allow her to remainoutside her residence from August 24, 2013, until 2:30 a.m. onAugust 25, 2013.

41 For these reasons, in the particular circumstances of this case, I find athird trial on the same charge on the same evidence would exceed thelimits of the community’s sense of fair play and, having regard to therelative seriousness of that charge, I conclude the administration of jus-tice is best served by staying any further proceedings in this matter.

VII. CONCLUSION42 I would allow the Crown’s appeal, set aside the acquittal and order a

new trial; but, I would impose a stay of those proceedings.

Whitmore J.A.:

I concur.

R. v. Wasilewski Ryan-Froslie J.A. 489

Ryan-Froslie J.A.:

I concur.

Appeal allowed.


[Indexed as: R. v. Armstrong]

Her Majesty the Queen and John Farrell Armstrong and RamseyJulian Scott Courchene, also known as Ramsey Julian

Courchene, accused

Manitoba Court of Queen’s Bench

Docket: Winnipeg Centre CR 15-01-34385

2016 MBQB 134

Suche J.

Judgment: June 24, 2016

Charter of Rights and Freedoms –––– Unreasonable search and seizure [s.8] — General principles –––– Police search of cell phones as incident of lawfularrest violating right because search exceeded permissible scope and policenotes inadequate.

Charter of Rights and Freedoms –––– Charter remedies [s. 24] — Exclusionof evidence –––– Data obtained through illegal search of cell phone to be ex-cluded because of serious violation of accused’s privacy and evidence not criti-cal to Crown’s case.

Two police officers, Lintick and Lafreniere, were on patrol when they noticed acar being driven erratically. They stopped the vehicle and one officer went toeach side of the car. Lintick went to the passenger side where one accused, C,was sitting. He later testified that he saw C pressing his leg against a can of bearspray and a blue prescription bottle filled with pills. C was fidgeting and at-tempting to open the glove box. He told C and the other accused, A, that theywere under arrest for possession of a prohibited weapon and a drug offence.Lintick searched C and found a wallet, a cell phone, a container with variouspills inside, which he believed to be illegal prescription drugs, cocaine, and bun-dles of cash. Lafreniere searched A and found crack cocaine, a pill bottle con-taining pills, cash in an envelope, and a cell phone. The accused were given theirCharter rights. The police discovered that C was on probation that included acurfew and a prohibition from possessing prescription pills without a valid pre-scription. The police also found two more cell phones in the glove box.

The cell phones were ringing, vibrating, or indicating that calls or text messageswere being received. Lintick read some of the texts but did not answer any of thephones. Lafreniere answered several calls at Lintick’s suggestion. At the station,Lintick viewed text messages and photographs, searching back as far as a yearon one phone. Lafreniere took very few notes dealing with the cell phones andLintick’s were less than satisfactory. After the preliminary inquiry, the Crown

R. v. Armstrong 491

asked Lintick to apply for search warrants. Pursuant to warrants that he ob-tained, data was extracted from the phones.

The accused were jointly charged with possession of the proceeds of crime andpossession of a prohibited weapon. A was also charged with two counts of pos-session for the purposes of trafficking, while C was charged with one count ofpossession for the purposes of trafficking, four counts of possession of a con-trolled substance, and breach of probation.

At trial, the two accused applied for the exclusion of the evidence, arguing thattheir rights under ss. 8 and 9 of the Charter had been violated. A voir dire wasconducted in which Lintick, Lafreniere, and C testified. C’s testimony contra-dicted that of the police officers concerning their observations of him and theirsearch of the vehicle.

Held: The drugs and bear spray was admitted into evidence; data from cellphone was excluded.

The initial detention was lawful because the police had authority under provin-cial legislation to stop a vehicle for reasons such as checking the driver’s licenceand insurance, sobriety of the driver, and mechanical fitness of the vehicle. Thevehicle was being driven somewhat erratically and it was reasonable to seewhether the driver was impaired, distracted, or if there was a safety hazard.

The police had reasonable and probable grounds to arrest the two accused. Al-though there were inconsistencies in the evidence of Lintick and Lafreniere,their evidence was more credible than that of C. When Lintick saw the bearspray and the bottle of pills, he had reasonable and probable grounds to believethe accused had been engaged in illegal activity. He had considerable experiencein investigating drug cases.

The incident occurred several months before the Supreme Court of Canada de-cided R. v. Fearon, 2014 SCC 77. That Court held that a cell phone could besearched as an incident to arrest but only to the extent of viewing recently cre-ated data and that the police must take detailed notes about their examination ofthe cell phone. The search of the cell phones by Lintick did not comply with theFearon requirements because of inadequate notes and because the scope of thesearch went beyond recently created data. Therefore, it violated s. 8.

The evidence obtained by Lintick from the search of the cell phones should notbe admitted. The officers acted in good faith on the basis of the state of the lawat the time. However, the extent to which the privacy interests of both accusedwere violated was considerable. It was a serious violation of their privacy thatweighed against admission of the evidence. The cell phone data was not criticalevidence and its exclusion would not bring the case to an end.

The drugs and bear spray were admissible but the phone data obtained by Lin-tick was not.


Cases considered by Suche J.:

R. v. Debot (1989), 73 C.R. (3d) 129, [1989] 2 S.C.R. 1140, 102 N.R. 161, 37O.A.C. 1, 52 C.C.C. (3d) 193, 45 C.R.R. 49, 1989 CarswellOnt 111, 1989CarswellOnt 966, [1989] S.C.J. No. 118, EYB 1989-67472 (S.C.C.) —followed

R. v. Fearon (2014), 2014 SCC 77, 2014 CSC 77, 2014 CarswellOnt 17202,2014 CarswellOnt 17203, [2014] S.C.J. No. 77, [2014] A.C.S. No. 77, 15C.R. (7th) 221, 465 N.R. 205, [2014] 3 S.C.R. 621, 318 C.C.C. (3d) 182, 326O.A.C. 1, 9 A.L.R. Int’l 547, 385 D.L.R. (4th) 211, 323 C.R.R. (2d) 307,129 O.R. (3d) 479 (note) (S.C.C.) — followed

R. v. Storrey (1990), 105 N.R. 81, [1990] 1 S.C.R. 241, 37 O.A.C. 161, 53C.C.C. (3d) 316, 75 C.R. (3d) 1, 47 C.R.R. 210, 1990 CarswellOnt 78, 1990CarswellOnt 989, [1990] S.C.J. No. 12, EYB 1990-67522 (S.C.C.) —followed



Generally — referred tos. 8 — considereds. 9 — considereds. 24(2) — pursuant to

Controlled Drugs and Substances Act, S.C. 1996, c. 19Generally — referred to

Criminal Code, R.S.C. 1985, c. C-46s. 495(1) — considered

Highway Traffic Act, R.S.M. 1970, c. H60Generally — referred tos. 76 — considered

APPLICATION by accused to exclude evidence.

Penny L. Piper, for CrownKevin C. Sneesby, for Accused, ArmstrongMandeep S. Bhangu, for Accused, Courchene

Suche J.:

1 The accused are jointly charged with possession of proceeds of crimeand possession of a prohibited weapon. Armstrong is also charged withtwo counts of possession for the purposes of trafficking a controlled sub-stance; Courchene is charged with one count of possession for the pur-poses of trafficking, four counts of possession of a controlled substance,

R. v. Armstrong Suche J. 493

and failure to comply with a probation order. The charges all arise from apolice traffic stop of a car Armstrong was driving and in whichCourchene was a passenger on March 16, 2014.

2 Armstrong and Courchene have brought a motion seeking to excludeevidence pursuant to s. 24(2) of the Canadian Charter of Rights andFreedoms (the “Charter”) on the grounds that their rights under ss. 8 and9 of the Charter were violated. The evidence in issue includes drugs, cashand a can of bear spray, as well as data retrieved from their cell phones.

Facts3 The evidence before me on these issues includes the testimony of

Constables Lintick and Lafreniere and Ramsey Courchene.4 Just before 1:00 a.m. on March 16, 2014, Lintick and Lafreniere were

on patrol in the northwest area of Winnipeg. Lafreniere graduated fromthe Winnipeg Police Academy the prior August and had been on fieldtraining with Lintick since March 1, 2014.

5 Travelling north on Brookside Boulevard they noticed a car in frontof them driving somewhat erratically — it moved in and out of its lanewithout signaling and then drove straddling two lanes for a period. Theydecided to make a traffic stop to see if the driver was impaired, distractedor there was something else wrong. Lafreniere was driving and activatedthe police lights, but the vehicle carried on for some distance seeminglyunaware of them. It eventually stopped at a red light at the intersection ofInkster Boulevard and Brookside Boulevard.

6 The officers got out, one going to each side of the car. Lintick ap-proached holding his flashlight above his shoulder and pointing downinto the car, to allow him to visually scan the occupants and the interior.He observed two people inside. As he was standing slightly behind thepassenger door looking down, he could see that the passenger, a verylarge individual, who turned out to be Ramsey Courchene, was pressinghis leg against a can of bear spray with tape on it and a blue prescriptionbottle, holding them against the door. It looked to Lintick that he wastrying to conceal the items. Lintick could not see a label on the bottle andit was packed to the very top with pills. Based on his experience in druginvestigations, he considered this to be a sign that the pills were intendedfor trafficking.

7 He could also see Courchene was fidgeting and moving his legs aboutand also reached for the glove box. Lintick spoke to Courchene throughthe open window. He told him to keep his hands on his lap where he


could see them. He had to tell him to do this more than once, asCourchene moved towards the glove box again.

8 Lintick called across the top of the car to Lafreniere, who was stand-ing beside the driver’s door, saying “bear spray”, and gestured. Hethought Lafreniere heard, as he responded, but it was also very windy sohe could not say for certain. He then leaned into the car and told bothaccused that they were under arrest for possession of a prohibitedweapon and a CDSA offence. He asked them if they understood. Theyboth said yes. He told Courchene to get out of the car. He handcuffedhim and took him to the rear of the vehicle.

9 In his testimony Lafreniere said that he went to the driver’s door in-tending to observe the driver to see if he was impaired. The driver —Armstrong — appeared very nervous, and he could also see the passen-ger was moving and fidgeting. He heard Lintick tell the passenger not toreach for the glove box. He did not hear Lintick say anything, but it ap-pears something caused him to look over the top of the car, because hesaw Lintick give an “urgent look” and then give direction to Lafreniereto put the driver in handcuffs. He therefore asked Armstrong to get out ofthe car and handcuffed him.

10 Lafreniere said he did not know the reason he was told to do this, butit was obvious Lintick had seen something, and he was acting pursuant toLintick’s direction.

11 The officers took both accused behind the car. Lafreniere said Linticktold them they were under arrest for possession of a prohibited weaponand a CDSA offence.

12 Lintick searched Courchene and found a wallet, a cell phone and abreath mint container with various pills inside, which he believed to beecstasy, Tylenol 3 and Percocet; as well as a plastic flap of cocaine. Healso found two bundles of cash held together with hair ties, totalling$1,125.

13 Lafreniere searched Armstrong and found 13 rocks of crack cocaineand an orange plastic pill bottle with 22 pills inside, $377.40 in cash inan envelope, and a cell phone.

14 After searching the accused, Lintick advised them that they wereunder arrest for additional charges: Armstrong for possession of proceedsof crime, possession of cocaine and Percocet for the purposes of traffick-ing; Courchene for four counts of possession of controlled substancesand possession of proceeds of crime.


15 They put the accused in the back of their cruiser car and called forback-up. Lintick read their Charter rights and repeated the notice of ar-rest. Lintick discovered through the police computer that Courchene wason probation which included an absolute curfew, except for medicalemergencies; he was also prohibited from possessing prescription pillswithout a valid prescription. He charged and cautioned him for breach ofprobation.

16 Lintick said he returned to the car to retrieve the bear spray and pillbottle. They waited until another unit arrived and took Armstrong intocustody and then both officers completed the search of the accused’s car.Lafreniere testified that Lintick returned to the accused’s car to search itwhile he remained with the accused in their cruiser car, waiting for back-up.

17 Lintick found two more cell phones in the glove box. The evidenceconcerning the four cell phones was both unclear and at times contradic-tory. Lafreniere took very few notes. Lintick’s notes were less than satis-factory, which he acknowledged. It is clear that one or more of the cellphones were active — ringing, vibrating or indicating that calls or textmessages were being received — throughout the time they were in theofficers’ possession. Lintick said he did not answer any of the phones,although he did read some of the texts that came in. Lafreniere said heanswered several calls, at Lintick’s suggestion. He did not make notes ofwhat was said, though, and had only a vague recollection. He recalledLintick answered at least one call.

18 The officers had the cell phones in their possession when they re-turned to the station and during the time they were completing their re-ports. Lintick viewed text messages and photographs, some of a personalnature. He searched back as far as a year on at least one phone, althoughit was not clear which one. He confirmed that he was doing this pursuantto the WPS policy then in effect, and as a search incident to arrest to lookfor evidence of drug trafficking.

19 Part of the uncertainty about which phone Lintick was viewing seemsto arise because at that point he was not sure which phone had been takenfrom Courchene. This was clarified by the data report provided to him bythe WPS Technical Crime Support Unit in 2015. He did observe a textcome in on Armstrong’s phone at 4:40 a.m. which he noted: “Hey Brettgave me this number. Are you able to meet me @ Maryland & Portagefor four?”


20 Following the preliminary inquiry in April 2015, the Crown askedLintick to apply for search warrants with respect to the four phones. Hedid so, and on June 11, 2015 warrants were issued for all four phones.Richard Klyne of the Technical Crime Support Unit extracted data fromthe phones, to the extent possible. This included a large number of textsand photographs from both Armstrong’s iPhone and Courchene’sBlackberry.

21 Ramsey Courchene also testified. He said that evening Armstrongcontacted him at home and wanted Courchene to go with him to Stone-wall, to his auntie’s house. Armstrong was upset because of some rela-tionship issues and apparently wanted to go drinking. Armstrong pickedhim up at his house. He said he noticed a black purse or duffel bag sittingon the backseat when he got in. They stopped at a store and then weredriving down Brookside when they were stopped by the officers. He ac-knowledged that when driving on Brookside the car was swerving a bit.When they were stopped he was going into the glove box to get the regis-tration when Lintick told him to get out of the car. He asked why but wasnot given an answer. He said he was only told he was under arrest afterLintick searched him and found the bottle of pills in his pants. He ac-knowledged that he was fidgeting while in the car, but this was becausehe has ADHD. He gave them a false name at first because he knew hewas in breach of his curfew. He denied any knowledge of the two cellphones found in the glove box or the bear spray. Courchene also statedthat due to his very large size — he is 310 pounds and five foot nine — itwas impossible for him to see his feet in the car, and since his legs essen-tially filled the space on the passenger side, it would be impossible foranyone to see anything between his leg and the door of the car. He alsosaid that after being placed in the back of the police cruiser he watchedLafreniere and Lintick search the car, and saw them “digging” in thebackseat and pull the can of bear spray out. He acknowledged that hewas violating his curfew, but did this because he needed to go with Arm-strong who was going drinking and therefore should not be driving. So,he explained, it was better that he be the designated driver and save hisfriend’s life, and maybe the lives of others, than comply with his curfew.He also acknowledged that he was not licenced to drive.

Was the Initial Detention Lawful?22 Police are entitled to stop a driver under section 76 of The Highway

Traffic Act, C.C.S.M. c. H60, for reasons related to driving a car such as


checking the driver’s licence and insurance, the sobriety of the driver andthe mechanical fitness of the vehicle.

23 Here, the officers had legal authority to stop the accused and detainthem under The Highway Traffic Act. There is no dispute that the car wasdriving somewhat erratically. Lintick, Lafreniere and Courchene all saidso. It was reasonable for the officers to see whether the driver was im-paired, distracted or if there was some other circumstance which createda safety hazard.

Did Police Have Reasonable and Probable Grounds to Arrest theAccused?

24 Pursuant to s. 495(1) of the Criminal Code, in order to lawfully makean arrest without a warrant a police officer must have reasonable andprobable grounds to believe the individual has committed or is about tocommit an indictable offence.

25 The standard for reasonable and probable grounds has been describedby the Supreme Court of Canada in R. v. Storrey, [1990] 1 S.C.R. 241(S.C.C.), as being at the lower end of the continuum of proof, and some-thing less than a prima facie case for conviction. In R. v. Debot, [1989] 2S.C.R. 1140 (S.C.C.), the Supreme Court described the informationneeded to be “compelling”. In deciding whether reasonable and probablegrounds exist, the totality of the circumstances relied on by the policemust be considered, and the perspective to be used is that of a reasonableperson standing in the shoes of the police officer at the time. Evidence orinformation obtained after the arrest cannot be relied upon.

26 The main issue here is the credibility of Constable Lintick, and to alesser extent Constable Lafreniere. The defence argues that Lintick is notbelievable and was evasive and inconsistent. They maintain his descrip-tion of seeing the bear spray and pill bottle pressed against the door is notcredible given Courchene’s size and the limited view that Lintick wouldhave had. They say the officers gave inconsistent descriptions regardingwhat transpired on the traffic stop: Lintick testified that he said “bearspray” and gestured to Lafreniere to remove Armstrong; Lafreniere saidhe only gave an urgent look and gestured. Lafreniere said that Linticksearched the vehicle but Lintick said they both did. Lintick said he neversaid he answered the cell phone, whereas Lafreniere said Lintick toldhim to answer the phones and he did so several times as did Lintickhimself.


27 The defence points to what they say are inconsistencies between whatLintick said and what his notes reveal, and also between his testimonyand his account in the Information to Obtain the search warrants in June2015. There he reports that he searched Armstrong, whereas it was clearthat this was done by Lafreniere; he said the iPhone was found onCourchene whereas it was found on Armstrong. They also point out thatwhile both accused are charged with possession of the bear spray, onlyCourchene is charged with the Percocet which was found in the blue pillbottle. Since, according to Lintick, both items were found together in thecar, this does not make sense. It is consistent, however, with the bottlebeing found on Courchene as he testified. They ask that I reject Lintick’sexplanation that the charges were laid in this way after consultation withand direction from his Sergeant.

28 I have a very different view. I agree there were some inconsistenciesbetween the testimony of Lafreniere and Lintick. I do not find them to beirreconcilable however. I am satisfied Constable Lintick was being truth-ful, forthright and as precise as he could be and reject the suggestion thathe was evasive. The reality of the situation, as he described, is that hewas trying to provide direction and instruction to Lafreniere and at thesame time both deal with events as they unfolded and keep track of themin his notes. He acknowledged that at times his notes were less than pre-cise, and at other times less than complete. It was clear to me that therewere some aspects of what transpired that were not clear in his mind andhe had to rely on his notes to recall some details. I think he probablyrecalled some things incorrectly. However, none of the details that wereleft unclear are of particular significance. He clearly did not keep closetrack of the cell phones as he needed to. However, there were four ofthem, and it must be remembered that the requirement to keep detailednotes of everything they reviewed was not part of the law at that time.

29 I accept Lintick’s evidence that he saw the can of bear spray and thepill bottle as he described; regardless of whether Lafreniere heard himsay “bear spray”, Lintick clearly communicated to Lafreniere, and Lafre-niere understood, that he had seen something and was telling Lafreniereto arrest Armstrong. I also accept that Lintick told both accused theywere under arrest for possession of a prohibited weapon and a CDSAoffence. I do have some question as to whether this happened while theaccused were still in the car or when they were taken to the back of thecar before they were searched, as Lafreniere described. Regardless ofwhich, it was done within a minute or two of being ordered out of thecar, and the delay is of no significance in the circumstances. I am, thus,


satisfied that prior to their being searched both accused were told thatthey were under arrest for possession of a prohibited weapon and aCDSA offence. They were also notified of the additional charges afterthey were searched.

30 Lintick’s explanation regarding the inconsistencies between the Infor-mation to Obtain and his evidence is that he prepared the Information toObtain over a year later and had to do so based on a review of his notes.He clearly made an error in these details. I see nothing sinister or particu-larly significant in these errors.

31 In making these findings, I am also rejecting the evidence ofCourchene. His explanation of events from the time Armstrong pickedhim up until they were stopped by the officers was simply unbelievable,and appeared to be contrived. His willingness to lie about his identity inorder to avoid the officers discovering he was violating of his curfewdemonstrates his utter disregard for the truth. His justification for violat-ing his curfew was both simplistic, and at the same time arrogant, andshowed total disregard for the law. His story that the bear spray was pro-duced after the officers were “digging” in the backseat where he had seena black purse or duffel bag was not put to either Lafreniere or Lintick,and diminishes its credibility. Simply put, I did not believe Courchene’stestimony to the extent it conflicted with the officers.

32 Having found that Lintick saw the can of bear spray and the bottle ofpills as he described, I have no difficulty concluding that he had reasona-ble and probable grounds to believe the accused had been engaged inillegal activity. Lintick had considerable experience in investigating drugcases. He estimated he had been involved in at least 90 and as many asseveral hundred drug cases at that point. He said that in his experience, apill bottle of that size, packed full of pills to the very top, with no label,suggested the pills were being trafficked. That fact alone might not besufficient to provide reasonable and probable grounds to believe thedrugs were in the accused’s possession for the purposes of trafficking.However, the presence of the modified can of bear spray is an additionalfactor suggesting the accused were involved in drug dealing. In addition,possession of the bear spray, in and of itself, is an offence. I am satisfiedthat Lintick had reasonable and probable grounds to believe both of-fences had been committed.


Is the Data From the Cell Phones Admissible33 This incident occurred in March 2014, several months prior to the

Supreme Court of Canada’s decision in R. v. Fearon, 2014 SCC 77(S.C.C.), which settled the law regarding the extent and nature of asearch of a cell phone permitted incident to arrest. Prior to Fearon,Courts of Appeal of various jurisdictions had expressed differing viewson the issue. In Manitoba there was no appellate authority.

34 In Fearon, the Supreme Court of Canada decided that police will bejustified in searching a cell phone incidental to an arrest if they have avalid law enforcement purpose to conduct the search which is objectivelyreasonable. This includes:

• protecting the police, the accused or the public;

• preserving evidence; or

• discovering evidence, including locating additional suspects in sit-uations in which the investigation will be stymied or significantlyhampered, absent the ability to promptly search the cell phone in-cident to arrest.

35 Further, the nature and the extent of the search must be tailored to thepurpose of the search and should only concern recently created data un-less some reason is demonstrated otherwise. Finally, the police must takedetailed notes of what they have examined on the device and how it wassearched.

36 It is clear that the search of the cell phones by Lintick incident toarrest does not comply with the requirements in Fearon. While it wastruly incidental to the arrest of the accused, and for the legitimate lawenforcement purposes of discovering evidence, detailed notes or otherevidence about what was searched was lacking.

37 In addition, it is clear that the scope of the search, both of photos and,it seems, texts, went far beyond the notion of recently sent or createddata.

38 This case has the additional factor that search warrants were subse-quently obtained authorizing a search of the cell phones. The Crown doesnot seek to introduce the evidence collected by Lintick, only the evidenceobtained through the data extraction by Officer Klyne. It was agreed bycounsel, however, that I should decide the issue of whether the search ofthe cell phones was legal and if not, whether the evidence obtained byLintick is admissible under s. 24(2). If I decide it is not admissible, Iunderstand the defence intends to challenge the search warrant.


Section 24(2) of the Charter39 The issue to be decided, then, is whether the data Lintick retrieved

from the cell phone should be admitted into evidence pursuant to s. 24(2)of the Charter.

40 The three considerations to be applied on a s. 24(2) analysis include:

• the seriousness of the Charter-infringing state conduct;

• the impact and the Charter-protected interests of the accused; and

• society’s interest in adjudication of the case on the merits.41 Once again, the decision is to be made in consideration of all of the

circumstances, recognizing that the objective is achieving a balance be-tween individual and societal interests in deciding whether the adminis-tration of justice would be brought into disrepute by admission of theevidence.

Seriousness of the Charter-infringing state conduct42 I am satisfied that the officers acted in good faith. Lintick said he was

following WPS policy regarding search of a cell phone incident to what Ihave now determined was a lawful arrest. His actions would have beenlawful given the state of the law at the time. This factor weighs in favourof admissibility.

Impact on the Charter-protected rights of both accused43 In Fearon, the Supreme Court of Canada observed that the nature of

the privacy interest in a cell phone is qualitatively and quantitatively dif-ferent from that in a purse, briefcase or filing cabinet. Digital informationhas the potential to be more intensely and extensively personal than whatmight be found in a briefcase. Often cell phones contain far more infor-mation and information far more personal than does a private home. Asthe court said, they can provide a window not just into the owner’s mostintimate actions or communications, but often into his mind, demonstrat-ing private, even uncommunicated interests, thoughts and feelings.

44 Here, Lintick said that he viewed photos of “a personal nature” goingback as far as a year. He also opened up and read various text strings.Since he has few notes of the texts and none of the photos he saw it is notclear exactly what he viewed. It is up to the Crown to establish exactlywhat the police did and what was viewed, to demonstrate the search wasnot excessive. Any uncertainty about the extent of the search must beresolved in favour of the accused.


45 The extent to which the privacy interests of both accused were vio-lated appears to be considerable. It appears that the details of Arm-strong’s and Courchene’s lives as captured in photographs for up to ayear were likely revealed. Wholesale revelation of intimate details willrarely be permitted, and was not justified in this case.

46 I consider this to be a serious violation of both accused’s privacy andthis factor weighs against admission of the evidence.

Society’s interest in adjudication on the merits47 Of significance is that the cell phone data is not critical evidence on

which the Crown relies. Exclusion of the evidence would not bring thecase to an end. This factor weighs against admissibility.

Balancing the factors48 As indicated previously, the balance exercise mandated by s. 24(2) is

a qualitative one, not simply a question of whether the majority of therelevant factors favour exclusion. No one consideration trumps the other.The evidence on each of the inquiries must be weighed to determinewhether having regard to all the circumstances and admission of the evi-dence would bring the administration of justice into disrepute. It is thelong-term reputation of the administration of justice that must beassessed.

49 I conclude that the cell phone data obtained by Lintick should not beadmitted into evidence under s. 24(2).

Conclusion50 Accordingly, the drugs and bear spray seized will be admitted into

evidence. The cell phone data obtained by Lintick through his search ofthe phones will not.

Application allowed in part.

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