CRIMINAL REPORTS Seventh Series/Septi`Eme S´Erie Recueil De Jurisprudence En Droit Criminel VOLUME 27 (Cited 27 C.R

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CRIMINAL REPORTS Seventh Series/Septi`eme s´erie Recueil de jurisprudence en droit criminel VOLUME 27 (Cited 27 C.R. (7th))

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[Indexed as: R. v. Borowiec] Her Majesty The Queen, Appellant and Meredith Katharine Borowiec, Respondent and Attorney General of Ontario, Women’s Legal Education and Action Fund Inc. and Criminal Lawyers’ Association of Ontario, Interveners Supreme Court of Canada Docket: 36585 2016 SCC 11, 2016 CSC 11 McLachlin C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Brown JJ. Heard: January 20, 2016 Judgment: March 24, 2016 Offences –––– Infanticide — Elements –––– Accused abandoning baby after giving birth on two occasions — Requirement that accused’s mind be “disturbed” not requiring mental illness, mental disorder or significant impairment of reasoning facilities — Trial judge not erring in acquitting of second degree murder and convicting of infanticide. The accused gave birth to a child and left it in a dumpster, where it was found crying. She admitted to having delivered two other babies and abandoning them: as a result she was charged with two counts of second degree murder. At trial she was found not guilty of second degree murder but guilty of infanticide. The Crown appealed the acquittals, arguing that the trial judge failed to apply any legal test in considering whether the accused’s mind was disturbed, inferred the accused’s mental state solely from her conduct, and failed to appreciate the evidence about mental state. Held: The appeal was dismissed, and the convictions for infanticide and the acquittals for second degree murder were upheld. Per Cromwell J. (McLachlin C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Brown JJ.): Infanticide is a form of culpable homicide which applies where a mother kills her newborn child and at the time of the act or omission, the mother’s mind is “disturbed” either because she is not fully recovered from 2 CRIMINAL REPORTS 27 C.R. (7th)

the effects of giving birth or by reason of the effect of lactation. The mental state of the mother must be disturbed and that disturbance must be connected to the effects of giving birth or lactation, but there need not be a causal connection between the disturbance of the mother’s mind and the decision to do the thing that caused her child’s death. The disturbance is part of the actus reus of the offence, not the mens rea. The mens rea of infanticide is the same as that required for manslaughter: the Crown must establish the mens rea associated with the unlawful act that caused the child’s death and the objective foreseeability of the risk of bodily harm to the child from that assault. Infanticide is a stand-alone offence but is also a defence to second degree murder. Where the evidence establishes an air of reality to an infanticide defence, the Crown must negate the defence beyond a reasonable doubt. In the offence of infanticide, the word “disturbed” is not a legal or medical term of art, but should be applied in its grammatical and ordinary sense. The term can mean “mentally agitated”, “mentally unstable” or “mental discomposure”. The disturbance need not constitute a defined mental or psychological condition or a mental illness, a mental disorder under s. 16 of the Criminal Code or a significant impairment of the accused’s reasoning faculties. The disturbance must be present at the time of the act or omission causing the “newly-born” child’s death and the act or omission must occur at a time when the accused is not fully recovered from the effects of giving birth or of lactation. However, there is no requirement to prove that the act or omission was caused by the disturbance, because the disturbance is part of the actus reus of infanticide, not the mens rea. The disturbance must be “by reason of” the fact that the accused was not fully recovered from the effects of giving birth or from the effect of lactation consequent on the birth of the child. Here, although the trial judge erred in his comparison of the disturbance standard to other provisions, this error did not affect his analysis of the evidence or his application of the appropriate legal standard to it. The trial judge considered the accused’s personal history, the circumstances of the offence, and the expert evidence. The trial judge did not fail to appreciate the evidence and considered it as a whole, and so there was no error in the trial judge’s conclusion that the accused’s mind was disturbed at the time of the offence.

Comment

The Supreme Court in Borowiec describes the law of infanticide as “a particularly dark corner of the criminal law”, which has an intended double meaning: the circumstances themselves will necessarily be unfortunate, but in addition the law governing it is obscure. It is on the one hand a charge which can be laid independently, in which event one set of rules applies (see s. 663 of the Criminal Code), but on the other hand it can be pleaded as a defence to a charge of murder, in which case a different set of rules, placing the onus on the Crown to R. v. Borowiec 3 disprove the defence, is in play. At a very general level it is analogous to the defence of provocation, in the sense that it acknowledges a particular kind of killing which should not be subject to the mandatory sentence applicable to murder, despite having been an intentional killing. The Court’s decision here should be seen as a conclusion that, although the infanticide provision does not mesh well with the logic underlying most of the criminal law, “ it has stood the practical test of time” (as was observed in R. v. Creighton (1993), 23 C.R. (4th) 189, [1993] 3 S.C.R. 3 (S.C.C.), with respect to manslaughter). Certainly it is difficult to imagine Parliament today drafting a provision which rests on the assumption that because of “the effect of lactation” a woman’s mind is “disturbed”. That said, few would deny, for example, that postpartum depression is a real phenomenon, or that other relevant and extraordinary pressures can exist for a woman after the birth of a child. As a result, although the Court does (in para. 35) offer some guidelines as to how the word “disturbed” should be understood, they are very general and leave a great deal of flexibility. On the one hand this could seem inconsistent with the desirable goal of having the law be knowable in advance. On the other hand that particular concern is diminished in this context: it is not only difficult but inconsistent with the premise of the defence to imagine a new mother wondering whether she will be acting lawfully by killing her newborn child: the whole point is that she is acting while her mind is “disturbed” in some way. Ultimately the real purpose of the rules laid down in Borowiec is accurately characterised by the Court in introducing the issue: “to provide a broad and flexible legal standard which will serve the ends of justice in the particular circumstances of these difficult cases” and to leave the matter to the “good judgment” of judges and juries (para. 2, emphasis added). Steve Coughlan Schulich School of Law, Dalhousie University Cases considered by Cromwell J.: R. c. Guimont (1999), 1999 CarswellQue 3622, (sub nom. R. v. Guimont) 141 C.C.C. (3d) 314, 33 C.R. (5th) 160, REJB 1999-14903, 1999 CarswellQue 4735 (C.A. Que.) — referred to R. v. B. (L.) (2008), 2008 CarswellOnt 5270, 61 C.R. (6th) 179, 237 C.C.C. (3d) 215, [2008] O.J. No. 3504 (Ont. S.C.J.) — referred to R. v. B. (L.) (2011), 2011 ONCA 153, 2011 CarswellOnt 1214, [2011] O.J. No. 891, 82 C.R. (6th) 197, 274 O.A.C. 365, 230 C.R.R. (2d) 22, 270 C.C.C. (3d) 208 (Ont. C.A.) — followed R. v. B. (L.) (2011), 2011 ONCA 153, 2011 CarswellOnt 1214, [2011] O.J. No. 891, 82 C.R. (6th) 197, 274 O.A.C. 365, 230 C.R.R. (2d) 22, 270 C.C.C. (3d) 208 (Ont. C.A.) — referred to 4 CRIMINAL REPORTS 27 C.R. (7th)

R. v. B. (L.) (2011), 2011 CarswellOnt 10522, 2011 CarswellOnt 10523, 428 N.R. 390 (note), 291 O.A.C. 398 (note), [2011] C.S.C.R. No. 208, [2011] S.C.C.A. No. 208, [2011] 4 S.C.R. x (note) (S.C.C.) — referred to R. v. Coombs (2003), 2003 ABQB 818, 2003 CarswellAlta 1396, 343 A.R. 212, [2003] A.J. No. 1209 (Alta. Q.B.) — referred to R. v. Leung (2014), 2014 BCSC 558, 2014 CarswellBC 4128, [2014] B.C.J. No. 3353 (B.C. S.C.) — referred to R. v. Parks (1992), 140 N.R. 161, 75 C.C.C. (3d) 287, [1992] 2 S.C.R. 871, 95 D.L.R. (4th) 27, 15 C.R. (4th) 289, 55 O.A.C. 241, 1992 CarswellOnt 107, 1992 CarswellOnt 996, EYB 1992-67543, [1992] S.C.J. No. 71 (S.C.C.) — referred to Statutes considered: Criminal Code, R.S.C. 1927, c. 36 s. 262 [am. 1948, c. 39, s. 7] — referred to Criminal Code, S.C. 1953-54, c. 51 Generally — referred to s. 204 — referred to Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 2 “mental disorder” — referred to s. 2 “newly-born child” — referred to s. 16 — considered s. 233 — considered s. 663(b) — considered s. 672.11(c) [en. 1991, c. 43, s. 4] — considered Infanticide Act, 1922 (12 & 13 Geo. 5) c. 18 Generally — referred to s. 1(1) — considered Infanticide Act, 1938 (1 & 2 Geo. 6), c. 36 Generally — referred to s. 1(1) [am. 2009, c. 25, s. 57] — considered Words and phrases considered: disturbed Parliament intended the concept of a “disturbed” mind [in the phrase “her mind is then disturbed” in s. 233 of the Criminal Code, R.S.C. 1927, c. 36] to have its ordinary meaning, so as to provide a broad and flexible legal standard which will serve the ends of justice in the particular circumstances of these difficult cases. ... [T]he phrase “mind is then disturbed” should be applied as follows: R. v. Borowiec Cromwell J. 5

(a) The word ‘disturbed‘ is not a legal or medical term of art, but should be applied in its grammatical and ordinary sense. (b) In the context of whether a mind is disturbed, the term can mean “mentally agitated”, “mentally unstable” or “‘mental discomposure”. (c) The disturbance need not constitute a defined mental or psychological condition or a mental illness. It need not constitute a mental disorder under s. 16 of the Criminal Code or amount to a significant impairment of the accused’s reasoning faculties.. . .. infanticide Infanticide, which is defined in s. 233 of the Criminal Code[, R.S.C. 1927, c. 36], is a form of culpable homicide and applies in [a] narrow set of circumstances. . ..

APPEAL by Crown from judgment reported at R. v. Borowiec (2015), 2015 ABCA 232, 2015 CarswellAlta 1237, [2015] A.J. No. 752, 22 C.R. (7th) 132, 326 C.C.C. (3d) 438, 21 Alta. L.R. (6th) 301, 602 A.R. 254, 647 W.A.C. 254, [2016] 2 W.W.R. 625 (Alta. C.A.), dismissing its appeal from conviction of accused on two counts of infanticide and seeking new trial on two counts of second degree of murder.

Julie Morgan, Joanne Dartana, for Appellant Andrea L. Serink, Alias Amelia Sanders, for Respondent Jocelyn Speyer, for Intervener, Attorney General of Ontario Jessica Orkin, Kim Stanton, Frances Mahon, for Intervener, Women’s Legal Ed- ucation and Action Fund Inc. Jonathan Dawe, Michael Dineen, for Intervener, Criminal Lawyers’ Association of Ontario

Cromwell J. (McLachlin C.J.C. and Abella, Moldaver, Karakatsanis, Wagner and Brown JJ. concurring): I. Introduction 1 This case requires us to explore a particularly dark corner of the criminal law, the law of infanticide. Section 233 of the Criminal Code, R.S.C. 1985, c. C-46, provides that “a female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed”. The focus of the appeal is the legal meaning of the phrase “her mind is then disturbed”, a phrase which is not defined in the Code and for which the case law has provided little explanation. 6 CRIMINAL REPORTS 27 C.R. (7th)

2 In my opinion, Parliament intended the concept of a “disturbed” mind in this offence to have its ordinary meaning, so as to provide a broad and flexible legal standard which will serve the ends of justice in the particular circumstances of these difficult cases. While we can provide some limited guidance for trial judges and juries, the rest is left, by Parlia- ment’s design, to their good judgment.

II. Overview of Facts, Issues and Judicial History 3 In October 2010, a newborn child was found crying in a dumpster. The respondent, who was sitting nearby, admitted that she had given birth to the child. She later admitted to having delivered two other babies in 2008 and 2009 and leaving each of them in a dumpster. 4 The respondent was charged with two counts of second degree murder in relation to the deceased newborns. Two expert witnesses were called at trial, each with opposing views on whether the respondent’s mind was disturbed at the time of the offences. 5 Dr. Kenneth Hashman, called by the Crown, was of the opinion that the respondent’s “balance of the mind”, as that expression is used in s. 672.11(c) of the Criminal Code, was not disturbed at the time of the commission of the alleged offences in 2008 and 2009. Dr. Jeannette Smith, called by the defence, concluded that the respondent’s actions were explained by her mind being disturbed as a result of her not yet having fully recovered from the effects of giving birth. 6 The main issue at trial and on appeal was whether the evidence gave rise to a reasonable doubt as to whether the respondent’s mind, at the time of the acts which resulted in the children’s deaths, was disturbed by reason of not having fully recovered from the effects of giving birth or lactation. 7 The trial judge accepted Dr. Smith’s opinion. In rejecting Dr. Hashman’s opinion, the trial judge noted that the expert failed to refer to an “important symptom” in his final report (namely that the respondent suffered “significant depersonalization” evidenced by statements that she felt like she had “zero control” of her actions and was “observing from outside” her own body); erroneously applied the “balance of the mind” language found under s. 672.11(c) of the Criminal Code; and that he seemed to require that the respondent have a mental disorder in order to have a disturbed mind. 8 In addition to Dr. Smith’s opinion, the trial judge considered the case as a whole, including that the respondent had no criminal record and no R. v. Borowiec Cromwell J. 7

psychopathic or sociopathic tendencies. The trial judge concluded that, as a result of the respondent’s “bizarre actions” and Dr. Smith’s opinion, the respondent’s mind was disturbed as a result of the births. Conse- quently, the trial judge found that the Crown failed to prove beyond a reasonable doubt that the respondent’s mind was not disturbed. The trial judge acquitted the respondent of murder and found her guilty of two counts of infanticide. 9 On the Crown’s appeal of the acquittal at trial, the Court of Appeal divided. The majority upheld the acquittals on the counts of second degree murder. Cˆot´e and McDonald JJ.A., writing for the majority, held that Parliament was deliberately vague in defining infanticide and that Parliament intended to set “a very low threshold” in using the term “disturbed”: 2015 ABCA 232, 21 Alta. L.R. (6th) 301 (Alta. C.A.), at para. 45, citing R. v. Coombs, 2003 ABQB 818, 343 A.R. 212 (Alta. Q.B.), at paras. 32, 37. The majority also concluded that, while s. 233 does not refer to “balance of the mind”, it was unlikely that Parliament intended any significant difference between that language and the “mind is disturbed” as found in s. 233: para. 50. While the trial judge was wrong on this point, the majority ultimately found no error in the trial judge’s analysis of the law on infanticide and dismissed the appeal. 10 The dissenting justice, Wakeling J.A., found that a woman had a “disturbed” mind only if her psychological health was substantially compromised because she recently gave birth and she had a newborn to care for and, as a result, her ability to make rational decisions promoting the best interests of her child was substantially impaired. Wakeling J.A. found that the trial judge and the experts failed to apply this standard (or any other standard) and would have allowed the appeal and ordered a new trial. 11 The main issue on the further appeal to this Court concerns the legal meaning of the phrase “her mind is then disturbed”. I will first put this issue in the context of the law of infanticide and then turn to the defini- tional issue.

III. Analysis A. Overview of the Law of Infanticide 12 The law of infanticide has been comprehensively reviewed by the Ontario Court of Appeal in R. v. B. (L.), 2011 ONCA 153, 274 O.A.C. 365 (Ont. C.A.), leave to appeal refused, [2011] 4 S.C.R. x (note) (S.C.C.). I need do little more than summarize its key conclusions. 8 CRIMINAL REPORTS 27 C.R. (7th)

13 Infanticide, which is defined in s. 233 of the Criminal Code, is a form of culpable homicide and applies in the narrow set of circumstances where (1) a mother, by a wilful act or omission, kills her newborn child (under one year of age, as defined by the Criminal Code, s. 2) and, (2) at the time of the act or omission, the mother’s mind is “disturbed” either because she is not fully recovered from the effects of giving birth or by reason of the effect of lactation: B. (L.), at para. 58. 14 This definition “requires a mother-child relationship between the perpetrator and the victim”. Further, “the mental state of the perpetrator/mother must be disturbed and that disturbance must be connected to the effects of giving birth or lactation”: B. (L.), at para. 59. The offence of “infanticide does not require a causal connection between the disturbance of the mother’s mind and the decision to do the thing that caused her child’s death”: ibid.; R. c. Guimont (1999), 141 C.C.C. (3d) 314 (C.A. Que.), at p. 317. The disturbance is part of the actus reus of the offence, and not the mens rea: B. (L.), at para. 59. 15 Infanticide operates both as a stand-alone offence and as a partial defence, as in this case, to a charge of murder: B. (L.), at paras. 99 and 104; Guimont, at p. 320. Where the evidence establishes an air of reality to an infanticide defence, the Crown must negate the defence beyond a reasonable doubt: B. (L.), at para. 137. 16 The mens rea of infanticide is the same as that required for manslaughter: B. (L.), at para. 114. Thus, “to prove infanticide, the Crown must establish the mens rea associated with the unlawful act that caused the child’s death and [the] objective foreseeability of the risk of bodily harm to the child from that assault”: ibid., at para. 121. As the Court of Appeal notes, it is the “unique actus reus of infanticide that distinguishes it from murder and manslaughter”: ibid. 17 When infanticide is raised as a partial defence to a charge of murder or manslaughter, the jury should be instructed as set out in B. (L.), at para. 139. Where the Crown proves that the accused committed a culpable homicide, the jury must consider the nature of the culpable homicide and whether it is infanticide. If the Crown fails to negate at least one of the elements of infanticide beyond a reasonable doubt, the jury must be instructed to return a verdict of not guilty of murder, but guilty of infanticide: ibid. R. v. Borowiec Cromwell J. 9

B. Disturbed Mind 18 The question of the meaning of the phrase “her mind is then disturbed” is one of statutory interpretation. To answer it, we apply the often reiterated “modern” approach which requires that we read the words in their “entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: E. A. Driedger, Construction of Statutes (2nd ed., 1983), at p. 87. I will look at the grammatical and ordinary sense of the words, their place within the Criminal Code, the provision’s legislative history and evolution, and, finally, at the jurisprudence interpreting this phrase.

(1) Grammatical and Ordinary Sense 19 The adjective “disturbed” means “[d]isquieted; agitated; having the settled state, order, or position interfered with” and “emotionally or mentally unstable or abnormal”: The Oxford English Dictionary (2nd ed. 1989), at p. 872. 20 The French version of the legislation provides that a woman commits infanticide “si au moment de l’acte ou de l’omission elle n’est pas com- plètement remise d’avoir donné naissance a` l’enfant et si, de ce fait ou par suite de la lactation consécutive a` la naissance de l’enfant, son esprit est alors déséquilibré”. Le Grand Robert de la langue fran¸caise (2nd ed. 2001) defines “déséquilibré” as “[q]ui n’a pas ou n’a plus son equilibre´ mental, psychique”: p. 1344. 21 The grammatical and ordinary sense of the words used in s. 233 supports the conclusion that the legislator did not intend to restrict the availability of infanticide to situations where the psychological health of the woman was substantially compromised or where a mental disorder was established. 22 The statutory language also shows that there is no requirement for a causal connection between the disturbance of the accused’s mind and the act or omission causing the child’s death. There is, however, a required link between the disturbance and having not fully recovered from the effects of giving birth to the child or of the effect of lactation consequent on the child’s birth; in either case the disturbance must be “by reason thereof”. 10 CRIMINAL REPORTS 27 C.R. (7th)

(2) Statutory Context 23 The concept of a “disturbed” mind is unique to infanticide and does not appear elsewhere in the Criminal Code. Conceptually, a “disturbed” mind must be different from a “mental disorder”, a term used in s. 16 of the Criminal Code, and, when proved on a balance of probabilities, can lead to a verdict of not criminally responsible. It must also be different from non-insane automatism, which makes the act committed by the accused involuntary: R. v. Parks, [1992] 2 S.C.R. 871 (S.C.C.), at p. 896. 24 From this we may infer that the disturbance addressed in the infanticide provisions need not reach the level required to provide a defence under s. 16 of the Criminal Code, that is, to be the result of a mental disorder (which is defined as a “disease of the mind” under s. 2 of the Criminal Code) that renders the accused incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. We can also infer that the disturbance aspect of infanticide need not render the accused’s acts or omissions involuntary as is required for automatism.

(3) Legislative History and Evolution 25 Section 233 of the Criminal Code originated in the English Infanti- cide Act, 1922 (U.K.), 12 & 13 Geo. 5, c. 18. In 1938, that legislation was replaced with the Infanticide Act, 1938 (U.K.), 1 & 2 Geo. 6, c. 36, and, in 2010, was amended by the Coroners and Justice Act 2009 (U.K.), c. 25, s. 57. 26 The Infanticide Act, 1922 introduced the requirement that “at the time of the act or omission [the mother] had not fully recovered from the effect of giving birth to such child, and by reason thereof the balance of her mind was then disturbed” (s. 1(1)). The Infanticide Act, 1938 introduced amendments that remain in force today, in particular that the “balance of [the mother’s] mind” could be “disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child” (s. 1(1)). 27 The adoption of the Infanticide Act, 1922 was intended to remedy the fact that judges and juries were reticent to convict a mother who killed her newborn of murder since she necessarily faced the death penalty: House of Lords, Hansard, series 5, vol. 50, May 25, 1922 (online) (the “Child Murder (Trial) Bill”), at pp. 758-59; see also D. Seaborne Davies, “Child-Killing in English Law” (1937), 1 Mod. L. Rev. 203, at pp. 211 and 217-19; and L.B., at paras. 67-68. The conditions in which infanti- R. v. Borowiec Cromwell J. 11

cide arose drew much public sympathy. It was thought to be a crime mostly committed by “illegitimate mothers” trying to hide their shame, a motive which the general opinion thought lessened the heinousness of the crime. Further, it was acknowledged that women who committed infanticide often faced difficult economic circumstances, which led to the commission of the crime: Davies, at pp. 221-22. 28 The drafters of the Infanticide Act, 1922 deliberately adopted broad language. In the House of Lords, the Lord Chancellor noted that the words expressing the requirement that the balance of the mother’s mind be disturbed were “not terms of art”. Rather, the use of these “new words” was intended to distinguish it from the language “appropriated by prescriptive usage to insanity proper and to mental derangement pro- duced by drunkenness” and that it was better to provide a formula “which might be the subject of reasonable judicial decision” and which would give effect to the intention behind the proposed legislation: Child Murder (Trial) Bill, at pp. 761-62. 29 However, the language used did introduce some limitations. Lord Carson recommended that the legislation should not provide relief to just any woman who has gone through childbirth. Rather, it should apply in situations where there was evidence that “the crime when committed was the result of the balance of [the mother’s] mind having been disturbed”: Child Murder (Trial) Bill, at p. 765. The Lord Chancellor agreed that one had to establish “some exceptional derangement and disturbance”: p. 768. 30 In Canada, infanticide first appeared in the Criminal Code in 1948: Criminal Code, R.S.C. 1927, c. 36, s. 262, as amended by An Act to amend the Criminal Code, S.C. 1948, c. 39, s. 7. In the English version of the law, Parliament adopted the same “balance of the mind” language as in the Infanticide Act, 1922. Amendments were made to the infanticide provisions in 1954: Criminal Code, S.C. 1953-54, c. 51. Among other changes, Parliament replaced the “balance of the mind” language with the requirement that the mother’s mind must be “then disturbed” and added lactation, in addition to giving birth, as a potential cause of that disturbance (s. 204). While the “balance of the mind” language was retained in other provisions pertaining to infanticide, namely ss. 663(b) and 672.11(c) of the Criminal Code, there is no meaningful difference between this language and the requirement that the mother’s “mind is then disturbed” under s. 233 of the Criminal Code. In the French versions of the successive statutory provisions at issue, the following lan- 12 CRIMINAL REPORTS 27 C.R. (7th)

guage was used: “son esprit etait´ alors déséquilibré” (in the 1927 version of the infanticide provision and in s. 663(b)); “son esprit est alors désé- quilibré” (the 1954 version of the infanticide provision); and “mentale- ment déséquilibrée” (in s. 672.11(c)). There is no meaningful difference, either, in the language used in French to describe the mother’s required state of mind. 31 The same concerns that led to the Infanticide Act, 1922 in the U.K. were also motivating factors in Canada. Namely, sympathetic juries repeatedly refused to convict mothers who killed their newborn children. The infanticide provision was intended to make it easier to get a conviction for the offence of homicide short of murder or manslaughter: House of Commons Debates, vol. V, 4th Sess., 20th Parl., June 14, 1948, at pp. 5184-87. 32 It was also expressed in debates that, as the U.K. statute, the provision was intended to apply to cases “where there is not the degree of mental derangement amounting to insanity” and that “[i]t does not go as far as the rule in Macnaughton’s case [which sets out a legal test for insanity]”: House of Commons Debates, at p. 5185 (Hon. J. L. Ilsley, Minister of Justice). It was also noted that the provision would capture “a slightly deranged, distressed mother” who would otherwise be guilty of murder: ibid., at p. 5187. 33 The debates in the U.K. and Canada surrounding the enactment of the infanticide provisions demonstrate that the purpose of the provision was to provide for a less serious offence than murder in cases of infanticide and to provide a broad and flexible standard that would be applied on a case-by-case basis.

(4) The Jurisprudence 34 Infanticide, and, in particular, the meaning of having a “disturbed” mind at the time of committing the act or omission leading to the child’s death, has received limited treatment in English and Canadian jurisprudence. The Canadian jurisprudence establishes that there is a “very low” or “fairly low” threshold for a finding of mental disturbance and that it does not require evidence that the accused has a mental disorder: Coombs, at paras. 36-37; R. v. Leung, 2014 BCSC 558 (B.C. S.C.), at paras. 26 and 32 (CanLII); R. v. B. (L.) (2008), 237 C.C.C. (3d) 215 (Ont. C.A.), at para. 59, aff’d 2011 ONCA 153, 274 O.A.C. 365 (Ont. C.A.) (although the trial judge there held that the standard should not be so minimal as to cheapen or disrespect the memory of the innocent victim). R. v. Borowiec Cromwell J. 13

In Leung, the jury was also told to give the word “disturbed” under s. 233 its ordinary, common meaning: see A.F., at para. 80 (fn. 119).

C. Conclusion on Meaning of “Mind Is Then Disturbed” 35 From this review, I cannot accept the conclusion of the dissenting judge in the Court of Appeal that Parliament intended to restrict the concept of a disturbed mind to those who have “a substantial psychological problem”: para. 140. Rather, I conclude that the phrase “mind is then disturbed” should be applied as follows: (a) The word “disturbed” is not a legal or medical term of art, but should be applied in its grammatical and ordinary sense. (b) In the context of whether a mind is disturbed, the term can mean “mentally agitated”, “mentally unstable” or “mental discomposure”. (c) The disturbance need not constitute a defined mental or psychological condition or a mental illness. It need not constitute a mental disorder under s. 16 of the Criminal Code or amount to a significant impairment of the accused’s reasoning faculties. (d) The disturbance must be present at the time of the act or omission causing the “newly-born” child’s death and the act or omission must occur at a time when the accused is not fully recovered from the effects of giving birth or of lactation. (e) There is no requirement to prove that the act or omission was caused by the disturbance. The disturbance is part of the actus reus of infanticide, not the mens rea. (f) The disturbance must be “by reason of” the fact that the accused was not fully recovered from the effects of giving birth or from the effect of lactation consequent on the birth of the child.

D. Application (1) The Trial Judge’s Reasons 36 The trial judge reviewed the limited body of jurisprudence on infanticide and the definition of a “disturbed” mind, which, among other points, established that “disturbed” mind did not require an actual diagnosis of a mental disorder and sets a very low threshold. 37 The trial judge rejected Dr. Hashman’s evidence, finding that the Crown expert erroneously referred to the “balance of the mind” test, required proof of a mental disorder and failed to refer in his final report to 14 CRIMINAL REPORTS 27 C.R. (7th)

an important symptom described by the respondent which supported a theory of depersonalization and dissociation despite having referred to it in prior correspondence. 38 Dr. Smith, on the other hand, referred in her report to the respondent’s descriptions of how she felt at the time of the deliveries and the similar information she gave to the police about her emotional state. For example, she noted that the respondent said she felt “detached and not thinking”, like she was “dreaming but not there” and described the deliveries as an “out of body experience”: A.R., vol. VI, at p. 93. This, Dr. Smith found, was “highly consistent with dissociation and depersonalization”: pp. 93-94. At trial, Dr. Smith also referred to these descriptions by the respondent and found them to be consistent with “significant depersonalization”. 39 The trial judge, relying on Dr. Smith’s opinion and the case as a whole, concluded that the respondent’s mind was “disturbed” as a result of not yet having fully recovered from the effects of giving birth.

(2) The Trial Judge’s Alleged Legal Errors (a) Did the Trial Judge Fail to Apply Any Legal Test? 40 The Crown argues that the trial judge failed to apply any legal test in determining whether the respondent’s mind was “disturbed” at the time of the deliveries. The Crown submits that the trial judge erroneously found that “balance of the mind” was something different from the “mind is disturbed” and failed to suggest what the test was or what level of disturbance would be sufficient. 41 I disagree that the trial judge failed to apply a legal test or standard. As concluded by the majority of the Court of Appeal, there was no error in the trial judge’s summary of the law of infanticide. The trial judge applied the correct standard, which is set out by the statutory language in s. 233 of the Criminal Code. Although the trial judge, erroneously, thought there was significant difference between the “balance of the mind” language found in related provisions and the wording of s. 233 that the mother’s mind be “disturbed”, this error did not affect his analysis of the evidence or his application of the appropriate legal standard to it. The trial judge rejected Dr. Hashman’s evidence for several reasons, including that he failed to refer to a symptom the trial judge thought was important in his final report and seemed to require evidence of a mental disorder. R. v. Borowiec Cromwell J. 15

42 The Crown seeks to impose a higher threshold than what is provided for by s. 233 of the Criminal Code in arguing that a mother has a “disturbed” mind only if her psychological health is “substantially compromised” because she recently gave birth. As noted earlier, this is not the legal standard intended by Parliament in s. 233 of the Criminal Code.

(b) Did the Trial Judge Infer the Respondent’s Mental State Solely From Her Conduct? 43 The Crown submits that the trial judge used the respondent’s conduct to determine the respondent’s mental state. In other words, the Crown argues that the trial judge adopted circular reasoning in finding that the respondent’s mind must have been disturbed because her actions were “bizarre” and “absolutely contrary to the nurturing that humankind depends on for its propagation”: A.F., at para. 99. 44 This argument must also be rejected. The trial judge’s reasons make it clear that he did not find that the respondent’s conduct met the requirements of the definition of infanticide simply because she had killed two of her children. The trial judge relied not only on the respondent’s personal history and the circumstances of the offences (which includes the nature of the acts themselves), but also on Dr. Smith’s expert opinion. In doing so, the trial judge had an evidentiary basis for concluding that the Crown failed to prove that the respondent’s mind was not disturbed at the time of the offences and did not rely on the circular reasoning alleged by the Crown.

(c) Did the Trial Judge Fail to Appreciate the Evidence of Mental State? 45 Finally, the Crown submits that the trial judge failed to consider the respondent’s “detailed account of each birth, her goal-oriented behaviour, her personal circumstances beyond not having a criminal record or psychopathic tendencies, and her pattern of rational behaviour and wilful blindness” in considering whether the level of depersonalization met the requirement of infanticide: A.F., at para. 103. In short, the Crown argues that the respondent’s behaviour demonstrated rational thought and an un- compromised mind. 46 Even assuming that this point raises a question of law, I cannot accept it. The trial judge took into consideration Dr. Smith’s report, which relied on the respondent’s statements about her behaviour to Dr. Smith and to the police, the respondent’s personal history, as well as the circumstances of the offences. 16 CRIMINAL REPORTS 27 C.R. (7th)

47 Dr. Smith was of the opinion that the “extreme panic associated with the delivery triggered significant dissociative symptoms, in particular depersonalization, which in turn impaired her ability to think clearly, to accurately perceive and judge her situation, to make reasonable decisions and to control her behaviour” and concluded that the respondent’s mind was disturbed as a result of not having fully recovered from the effects of giving birth: A.R., vol. VI, at p. 94. 48 The trial judge also considered the case as a whole, including the facts of the offences and that the respondent had no criminal record or psychopathic or sociopathic tendencies. Based on his assessment of the evidence, the trial judge was entitled to conclude or have a reasonable doubt that the respondent’s mind was “disturbed” at the time of the offences despite any indication of rational behaviour and wilful blindness.

IV. Disposition 49 I would dismiss the appeal. Appeal dismissed. R. v. Ghomeshi 17

[Indexed as: R. v. Ghomeshi] Her Majesty the Queen and Jian Ghomeshi Ontario Court of Justice Docket: Toronto 4817 998 15-75006437 2016 ONCJ 155 William B. Horkins J. Heard: February 1-11, 2016 Judgment: March 24, 2016 Offences –––– Sexual assault — General offence — Evidence — Credibil- ity — Complainant –––– Complainants showed disregard for truth on matters taking place after assault — Two of three complainants collaborated after assault to tailor their evidence out of animosity to accused — Complainants’ evidence did not satisfy standard of proof beyond reasonable doubt. The accused was charged with the sexual assault of three women and with choking one of them. The accused was a popular radio host who met the complainants through his work. In each case, the complainants testified that they found the accused charming and attractive but that he attacked them physically as part of sexual gratification. C1 testified that the accused hit her in the head and pulled her hair. C2 and C3 testified that they were choked by the accused. The complainants came forward after a public appeal by police for victims of the accused, after media reports linking him to violent sexual misconduct with another woman from his place of employment. Each complainant admitted that she had further contact or communication with the accused after the alleged offences, in many cases contradicting evidence that they had given in their testimony in chief. These included communications that were flirtatious or had sexual overtones. C3 also acknowledged a further sexual act with the accused after the alleged assault. C1 maintained the truth of certain details of the accused’s car and of her appearance that had been conclusively disproven. C2 and C3 had extensive communications after the charges were laid in which they expressed a strong desire to see the accused punished and in which C2 indicated that the case would benefit her career as an actress. The accused did not testify. Held: The accused was acquitted. The evidence of each complainant failed to satisfy the standard of proof beyond a reasonable doubt. Each complainant had shown a willingness to disregard the truth and had not been completely honest with the court. Complainants 2 and 3 had worked together to tailor their evidence to further their deep animosity to- 18 CRIMINAL REPORTS 27 C.R. (7th)

ward the accused. Justice Horkins noted that while he was not deciding whether the sexual assaults had in fact taken place, he could not accept the complainants’ evidence because of their disregard for the importance of telling the truth. Cases considered by William B. Horkins J.: R. v. Lifchus (1997), 1997 CarswellMan 392, 1997 CarswellMan 393, 9 C.R. (5th) 1, 118 C.C.C. (3d) 1, 216 N.R. 215, 150 D.L.R. (4th) 733, 118 Man. R. (2d) 218, 149 W.A.C. 218, [1997] 3 S.C.R. 320, [1997] 10 W.W.R. 570, [1997] S.C.J. No. 77 (S.C.C.) — followed Words and phrases considered: sexual assault A criminal “assault” is an intentional application of force to the person of another without that person’s consent. A “sexual assault” is an assault committed in sexual circumstances such that the sexual integrity of the victim is violated. The test to determine if an assault is “sexual” is an objective one. This test asks whether the sexual nature of the contact would be apparent to a reasonable person when viewed in light of all of the circumstances. The actual intent of the accused is only one factor amongst many that may determine if the conduct involved is “sexual”. “Sexual assault” as defined in our Criminal Code [R.S.C. 1985, c. C-46] covers a very broad spectrum of offensive activity; everything from an uninvited sexual touching to a brutal rape falls under the one title of “sexual assault”. The events as described by each of the complainants, taken at face value, fall within this broad definition. Each allegation of violence occurred in an intimate situation.

TRIAL of accused on charges of sexual assault and overcoming resistance to sexual assault by choking.

Michael Callaghan, Corie Langdon, for Crown Marie Henein, Danielle Robitaille, Samuel Walker, for Accused

William B. Horkins J.: Introduction 1 Jian Ghomeshi is charged with five criminal offences relating to four separate events, involving three different complainants. Two of the complainants are shielded from identification and so I refer to the complainant in counts 1 and 2 by the initials L.R. and the complainant in count 5 by the initials S.D. 2 The charges with respect to L.R. are two counts of sexual assault. The first assault is alleged to have occurred between December 1st and 31st, 2002 and the second assault on January 2nd, 2003. R. v. Ghomeshi William B. Horkins J. 19

3 The charges with respect to Lu. De. are sexual assault and overcoming resistance to sexual assault by choking. These events were originally alleged to have occurred between the 27th of June and the 2nd of July 2003 but this has since been amended to conform to the evidence that the events occurred between the 4th and 6th of July 2003. 4 The charge with respect to S.D. is sexual assault. This was originally alleged to have occurred between the 15th and 20th of July 2003. This has now been amended to conform to the evidence that the event occurred between the 15th of July and the 2nd of August 2003.

The Elements of the Offences 5 A criminal “assault” is an intentional application of force to the person of another without that person’s consent. A “sexual assault” is an assault committed in sexual circumstances such that the sexual integrity of the victim is violated. The test to determine if an assault is “sexual” is an objective one. This test asks whether the sexual nature of the contact would be apparent to a reasonable person when viewed in light of all of the circumstances. The actual intent of the accused is only one factor amongst many that may determine if the conduct involved is “sexual”. 6 “Sexual assault” as defined in our Criminal Code covers a very broad spectrum of offensive activity; everything from an uninvited sexual touching to a brutal rape falls under the one title of “sexual assault”. The events as described by each of the complainants, taken at face value, fall within this broad definition. Each allegation of violence occurred in an intimate situation. 7 With respect to the complainant Lu. De. there is an added charge of choking with intent to overcome resistance. This offence is committed when a perpetrator attempts to choke the victim with the intent of facilitating the commission of an offence; in this instance, a sexual assault.

Background Context of the Case 8 At the time of the events in question, 2002 to 2003, Mr. Ghomeshi was the host of a CBC television show called “PLAY”. Subsequently, and for several years prior to when these complainants came forward in 2014, he was the host of a CBC radio show called Q. Q is a show which features interviews with prominent cultural and entertainment figures. With Mr. Ghomeshi as the host, Q enjoyed a large and dedicated following. 20 CRIMINAL REPORTS 27 C.R. (7th)

9 It is fair to say that in 2014 Mr. Ghomeshi had achieved celebrity status and was a prominent and well-known personality in the arts and entertainment community in Canada. Then, suddenly, in 2014 the CBC publicly terminated him in the midst of several allegations of disreputa- ble behaviour towards a number of women. 10 The publicity surrounding what I will call the “Ghomeshi Scandal” in 2014 is the context in which the complainants in this case came forward with reports of sexual assaults that they say occurred in 2002 and 2003. 11 Each charge presented against Mr. Ghomeshi is based entirely on the evidence of the complainant. Given the nature of the allegations this is not unusual or surprising; however it is significant because, as a result, the judgment of this Court depends entirely on an assessment of the credibility and the reliability of each complainant as a witness.

The Complaint of L.R. 12 The first two counts of the Information are allegations that the accused sexually assaulted the complainant L.R. on two different occasions. The first occasion is identified as having occurred on a date between December 1st and 31st, 2002. The second allegation is identified as having occurred on the 2nd of January 2003. 13 L.R. first met Mr. Ghomeshi while working as a server at the 2002 CBC Christmas party. She felt that they made a connection. They flirted with each other and she found Mr. Ghomeshi to be charming and charis- matic. When speaking of this first meeting, she reported: “He was smit- ten with me”. He seemed very enthusiastic. Mr. Ghomeshi invited L.R. to attend a future taping of his show “PLAY” and gave her a note with the time and the place of the taping. 14 L.R.’s evidence was that on the evening she went to the show Mr. Ghomeshi’s eyes lit up when he saw her arrive and he exclaimed, excit- edly, “You came!” 15 The show was taped in a restaurant bar. L.R. sat at the bar where she was close to Mr. Ghomeshi during the show. After the show he asked her to accompany him and some other CBC personalities to a nearby pub for a drink. L.R. remembers that Mr. Ghomeshi was sweet and humble. She recalled certain small details of the evening, for instance, he ordered a Heineken and she had a ginger ale. She thought he was funny, intelligent, charming and a nice person. R. v. Ghomeshi William B. Horkins J. 21

16 After about half an hour Mr. Ghomeshi and L.R. left the pub. He drove her to her car that was parked a short distance away. L.R. had a clear and very specific recollection of his car being a bright yellow Volk- swagen Beetle. It struck her as being a “Disney car”, a “Love Bug”. She said she was impressed that he was not driving a Hummer or some such vehicle. The “Love Bug” car was significant to her because it contributed to her impression of his softness, his kindness and generally, that it was safe to be with him. 17 When they arrived at the parking lot where L.R.’s car was parked they sat in his car and talked. Mr. Ghomeshi was flirtatious and it was playful. He asked her to undo some of the buttons of her blouse and she said no. She was flirting with him. They were kissing, when suddenly he grabbed hold of her long hair and yanked it “really, really hard”. She said her thoughts at the time were: “What have I gotten into here?” 18 L.R. described the yank to her hair as painful. Mr. Ghomeshi asked her if she liked it like that, or words to that effect. They sat and talked for a while longer. Mr. Ghomeshi had reverted back to being very nice. It was confusing and L.R. was unsure what to think. She wondered if maybe he did not know his own strength. They kissed goodbye. L.R. got out of the car and drove home. She continued to ask herself whether he had really intended to hurt her. 19 L.R. was obviously very much taken with Mr. Ghomeshi. She was separated from her husband at the time and agreed that she was considering Mr. Ghomeshi as someone she would potentially be interested in going out with. She decided to attend another taping of Mr. Ghomeshi’s show. He met her there and was very nice to her. It was, to use her expression, “uneventful”. 20 During the first week of January 2003, L.R. attended another taping of Mr. Ghomeshi’s show. On this occasion she went with a girlfriend. L.R. recounts that Mr. Ghomeshi was happy to see them. They interacted and after the show they all went to the pub. They were at the pub for less than an hour. L.R. said that she flirted with Mr. Ghomeshi. He invited both women back to his home. L.R.’s friend declined. After they dropped off her friend at the subway, L.R. and Mr. Ghomeshi drove to his home. 21 While at Mr. Ghomeshi’s home the music was playing. They had a drink, and they sat on the couch and talked. At one point L.R. was standing up near the couch, looking at various things in the room and thinking what a charming person he was. Then, suddenly, “out of the blue”, he came up behind her, grabbed her hair and pulled it. He then punched her 22 CRIMINAL REPORTS 27 C.R. (7th)

in the head several times and pulled her to her knees. The force of the blow was significant. She said it felt like walking into a pole or hitting her head on the pavement. L.R. thought she might pass out. 22 Then, suddenly again, the rage was gone and Mr. Ghomeshi said, “You should go now; I’ll call you a cab.” L.R. waited for the cab then left. She said, “He threw me out like the trash.” 23 L.R.’s evidence was that at the time of these events in 2003, she never thought of calling the police. She did not think anyone would listen to her. L.R. said she never saw Mr. Ghomeshi again after this incident. 24 Over a decade later, Mr. Ghomeshi was fired from the CBC and the “Ghomeshi Scandal” broke in the media. L.R. came forward publically with her complaint in response to the publicity and specifically, in response to then Chief Blair of the Toronto Police Service publically en- couraging those with complaints about Jian Ghomeshi to come forward. 25 Several areas of concern in L.R.’s evidence were identified in cross- examination.

An Evolving Set of Facts 26 Prior to speaking with police, L.R. gave three media interviews about her allegations against Mr. Ghomeshi. In these interviews, she described the first assault as happening “out of the blue”, as opposed to having happened in the midst of a kissing session. Her police statement was initially similar to her media interviews. It was only near the end of her police statement that L.R. had the hair pulling and kissing “intertwined”. Then at trial, the account of the event had developed to the point of the hair pulling clearly occurring at the same time as “sensuous” kissing. The event had evolved from a “common” assault into a sexual assault. 27 When pressed about the shifting facts in her version of the events, L.R. explained that while she was giving the media interviews, she was unsure of the sequencing of events and “therefore ... didn’t put it in”.

The Hair Extensions 28 The day following her police interview, L.R. sent a follow up email to the police to explain that she remembered very clearly that she was wearing clip-on hair extensions during the hair pulling incident in the car. In cross-examination, L.R. testified that at some point she reversed this “clear” memory and is now adamant that she was not wearing clip-on hair extensions during the incident. R. v. Ghomeshi William B. Horkins J. 23

29 L.R. frequently communicated with police by email and phone. She met and spoke with Crown counsel. She did nothing to correct the misin- formation she provided to the police about the hair extensions. Equally as concerning as the reversals on this point, was her claim that she had, in fact, disclosed this reversed memory to the Crown. When pressed in cross-examination, she conceded that this was not true.

The Car Window Head Smash 30 The day after her police interview, L.R. emailed the police to explain that she was then beginning to remember that during the car incident, Mr. Ghomeshi smashed her head into the window. In her previous four accounts of the incident, provided to police and the media, she had never claimed that her head had been smashed into the car window. Under cross-examination, she reverted to the version of the car incident with no head smash. She then added that her head had been resting against the window; something she had never mentioned previously, at any time. 31 When pressed to explain these variations, L.R. said that at her police interview she was simply “throwing thoughts” at the investigators. 32 When cross-examined about her new allegation of having her head smashed into the window, L.R. denied demonstrating in her sworn police video statement that her hair was pulled back towards the seat of the car, not towards or into the window. She persisted in her denial of this, even when the police video was played, clearly showing her demonstrating to the detectives how her hair was pulled back. Her explanation for this shifting in her evidence was that during the police interview she was “high on nerves”. 33 L.R.’s memory about the assault at the house also shifted and changed significantly. She told the Toronto Star and CBC TV that she was pulled down to the floor prior to being assaulted at the house. She told CBC Radio that she was thrown down to the ground. Then she told the police that the events were “blurry” and did not know how she got to the ground. When trying to reconcile all of these inconsistencies she said that, to her, being “thrown” and being “pulled” to the ground are the same thing. 34 In her police interview, L.R. did not initially describe kissing as part of the alleged assault and was unable to describe a clear sequence of events. At trial, for the first time, she had kissing clearly intertwined with the alleged assault. She remembered kissing on the couch and kissing standing up. L.R. could not describe the conversation or what they were 24 CRIMINAL REPORTS 27 C.R. (7th)

each doing prior to the assault. In her evidence in-chief, there was no mention of doing a yoga pose just prior to the assault. In cross-examination, L.R. was reminded of the yoga moves and her earlier statement that Mr. Ghomeshi was bothered by them.

The “Love Bug” 35 One of L.R.’s clear memories was simply, and demonstrably, wrong. She testified at length about Mr. Ghomeshi’s bright yellow Volkswagen “Love Bug” or “Disney car”. This was a significant factor in her impression that Mr. Ghomeshi was a “charming” and nice person. However, I find as a fact that Mr. Ghomeshi did not acquire the Volkswagen Beetle that she described until seven months after the event she was remembering. 36 In a case which turns entirely on the reliability of the evidence of the complainant, this otherwise, perhaps, innocuous error takes on greater significance. This was a central feature of her assessment of Mr. Ghomeshi as a “nice guy” and a safe date. Her description of his car was an important feature of her recollection of the first date. And yet we know that this memory is simply wrong. The impossibility of this memory makes one seriously question, what else might be honestly remembered by her and yet actually be equally wrong? This demonstrably false memory weighs in the balance against the general reliability of L.R.’s evidence as a whole.

The Flirtatious Emails 37 L.R. was firm in her evidence that following the second incident she chose never to have any further contact with Mr. Ghomeshi. She testified that every time she heard Mr. Ghomeshi on TV or radio, she had to turn it off. The sound of Mr. Ghomeshi’s voice and the sight of his face made her relive the trauma of the assault. L.R. could not even listen to the new host of Q because of the traumatizing association with Mr. Ghomeshi. 38 L.R.’s evidence in this regard is irreconcilable with subsequently proven facts. She sent a flirtatious email to Mr. Ghomeshi a year later. In her email, L.R calls Mr. Ghomeshi “Play-boy”; a reference to his show. She refers, oddly, to him ploughing snow, naked. She says it was “good to see you again.” She is either watching him, or watching his show. “Your show is still great,” she writes. She invites him to review a video she made and provides a hot link embedded into the body of the message. L.R. provides him with her email address and phone number so he R. v. Ghomeshi William B. Horkins J. 25

can reply. Despite her invitation, she received no response. This is not an email that L.R. could have simply forgotten about and it reveals conduct that is completely inconsistent with her assertion that the mere thought of Jian Ghomeshi traumatized her. 39 Six months later, L.R. sent another email to Mr. Ghomeshi. In it she said, “Hi Jian, I’ve been watching you ...” (here expressly referencing another TV show), “hope all is well.” She attached to this email a picture entitled “beach1.jpg”, which is a picture of her, reclined on a sandy beach, wearing a red string bikini. This is not an email that she could have simply forgotten about. It reveals conduct completely inconsistent with her assertion that the mere thought of Mr. Ghomeshi traumatized her. 40 The negative impact that this after-the-fact conduct has on L.R.’s credibility is surpassed by the fact that she never disclosed any of this to the police or to the Crown. 41 It was only after she was confronted in cross-examination with the actual emails and attachment that L.R. suddenly remembered not just attempting to contact Mr. Ghomeshi but also that it was part of a plan. She said that her emails were sent as “bait” to try to draw out Mr. Ghomeshi to contact her directly so that she could confront him with what he had done to her. 42 I suppose this explanation could be true, except that this spontaneous explanation of a plan to bait Mr. Ghomeshi is completely inconsistent with her earlier stance that she wanted nothing to do with him, and that she was traumatized by the mere thought of him. I am unable to satisfac- torily reconcile her evidence on these points. 43 The expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models. Having said that, I have no hesitation in saying that the behaviour of this complainant is, at the very least, odd. The factual inconsistencies in her evidence cause me to approach her evidence with great scepticism. 44 L.R.’s evidence in-chief seemed rational and balanced. Under cross- examination, the value of her evidence suffered irreparable damage. De- fence counsel’s questioning revealed inconsistencies, and incongruous and deceptive conduct. L.R. has been exposed as a witness willing to withhold relevant information from the police, from the Crown and from the Court. It is clear that she deliberately breached her oath to tell the truth. Her value as a reliable witness is diminished accordingly. 26 CRIMINAL REPORTS 27 C.R. (7th)

The Complaint of Lu. De. 45 I turn now to the charges relating to Ms. M De. She said that she was choked and sexually assaulted in 2003. She came forward publically with her allegations at the time of the intense publicity surrounding the CBC’s dismissal of Mr. Ghomeshi in 2014. 46 Ms. De. first met Mr. Ghomeshi at the Banff Film Festival in June of 2003. They enjoyed each other’s company. Ms. De. found Mr. Ghomeshi playful and flirtatious, and came away thinking he would be fun to be with. They stayed in touch and planned to get together in Toronto over the upcoming Canada Day long-weekend. She traveled from her home in Halifax to visit with Mr. Ghomeshi as well as other friends living in Toronto 47 Early in her weekend visit, Ms. De. and Mr. Ghomeshi went out for dinner. They enjoyed some pleasant conversation. He told her he would like to go back to his place and listen to some music and just hold her. She thought that this was “cheesy” and “put on”. After dinner they did go back to his home, a short walk from the restaurant. Along the way he made a move to kiss her. She thought the attempt seemed awkward. 48 Mr. Ghomeshi gave Ms. De. a tour of his house. She was impressed with how organized and well-kept it was. Then, suddenly, out of the blue, he kissed her. Ms. De. described how Mr. Ghomeshi put his hand onto her throat and pushed her forcefully to the wall, choking her and slapping her in the face. She was shocked, surprised and bewildered. She tried to remain calm and act as if nothing unusual had happened. She stayed a while longer. They listened to music and he played his guitar. Then, with a kiss good night, she left. 49 Over the course of the weekend Ms. De. and Mr. Ghomeshi attended several social events together. She thought that the assault might have been a mistake or a “one off” of some sort. She internalized it. On one occasion, she returned briefly to his home. She recalls accidentally step- ping on his glasses and that this upset him. She reports that he had become moody but there were no further acts of violence. Ms. De. firmly stated that after this weekend she had no intention of having any sort of ongoing personal relationship with Mr. Ghomeshi. 50 After the weekend, Ms. De. sent Mr. Ghomeshi flowers in appreciation of him being such a great host during her visit to Toronto. 51 In October of 2003 their paths crossed at the Gemini Awards dinner in Toronto. The television series in which she was a cast member was R. v. Ghomeshi William B. Horkins J. 27

nominated. Mr. Ghomeshi came to her table, chatted and at one point reached out and touched her neck. Ms. De. interpreted this touch to the neck as an unsettling reminder of the July assault. 52 In June 2004 both Ms. De. and Mr. Ghomeshi attended the Banff Film Festival and they spent time together there. At a karaoke event at the Banff Springs Hotel, Ms. De. was on the stage singing the Britney Spears’ song “Hit Me Baby One More Time”. Mr. Ghomeshi joined her in a duet. She characterized the performance as “hilarious”. 53 After the 2004 Banff Film Festival they met occasionally at industry events. When being interviewed about their history together prior to 2014, Ms. De. acknowledged that there were probably more social meetings and dinners, the details of which she could not recall. She referred to these meetings as “inconsequential”. 54 Ms. De. did not report this assault in 2003 because she thought that the incident was not serious enough. She said that she thought you had to be “beaten to pieces ... broken and raped” before going to the police. Ms. De. came forward publically with her complaint in 2014, when she heard of Mr. Ghomeshi being terminated by the CBC. Ms. De. said that her plan was to take her experience to the press. She came to Toronto and gave numerous media interviews. She said that she was not interested in legal action being taken against Mr. Ghomeshi. She only went to the police because they had asked for anyone with information to speak to them. 55 Ms. De.’s credibility and reliability as a witness were vigorously challenged in cross-examination, revealing serious problems with ac- cepting her evidence at full value.

Late Disclosure of Material Information 56 Just prior to Ms. De. being called as a witness, she met with the Crown and police and revealed a significant amount of new information to the prosecution. This last minute disclosure of information occurred despite having the assistance of her own counsel throughout the many months leading up to the trial and despite her acknowledgment that a line of communication with the investigating officers and Crown counsel was well-established throughout this period of time. 57 Ms. De. insisted that her late disclosure was spontaneous and denied being aware that the previous witness, L.R., had been confronted with embarrassing emails from 2004. Ms. De. insisted that her reason for coming forward with new information on February 2, 2016, was that she 28 CRIMINAL REPORTS 27 C.R. (7th)

did not understand the “importance” or “impact” of the information until then. 58 In cross-examination Ms. De. confirmed that she did not mention in her sworn police interview, or in any of her 19 reported media interviews, that Mr. Ghomeshi had attempted to kiss her during their walk to his home; that they kissed on the couch after the alleged assault; that they kissed goodnight when she left his home that evening. None of that was disclosed prior to the trial. 59 When asked directly by Detective Ansari in her police interview what she and Mr. Ghomeshi did in the time between the alleged assault and her departure from his home, she simply said “nothing stuck” in her memory. Trying to explain this inconsistency, she testified that she did not think kissing with her assailant after the alleged assault was very “consequential”. 60 It is difficult for me to believe that someone who was choked as part of a sexual assault, would consider kissing sessions with the assailant both before and after the assault not worth mentioning when reporting the matter to the police. I can understand being reluctant to mention it, but I do not understand her thinking that it was not relevant. 61 Ms. De. remembered and reported minute details of their date: what Mr. Ghomeshi ordered at the restaurant; how he organized his shirts; that the temperature of his house was perfect; and that fresh flowers were on the table. All this was memorable and remarkable, yet she claimed to have left out the kissing and the cuddling because she thought brevity and succinctness were important. I do not accept this as a credible explanation. 62 Ms. De. repeatedly stated that Mr. Ghomeshi’s suggestion about lying down together and listening to music was creepy, cheesy or otherwise unappealing. It made her instantly uncomfortable. However, five days later, when she penned him a “love letter”, she wrote, “What on earth could be better than lying with you, listening to music and having peace?”

Inconsistencies in Recounting the Alleged Assault 63 Ms. De. told the police, under oath, that her recollection of the events that took place at Mr. Ghomeshi’s house was “all jumbled”. She told them that at a certain point she and Mr. Ghomeshi started kissing but, “I don’t remember the order of events.” She was not sure whether the choking or the slapping came first. However, when she spoke to the Toronto R. v. Ghomeshi William B. Horkins J. 29

Star a few days prior to her police interview, she said that it was choking and then slapping. When she spoke to the CTV, she was not sure about the order. At trial, for the first time, she gave a clear and specific sequence of events: a push up against the wall; two slaps; a pause, and then another slap. She acknowledged in cross-examination that this was, again, another new or different version of the events. 64 An inability to recall the sequence of such a traumatic event from over a decade ago is not very surprising and in most instances, it would be of little concern. However, what is troubling about this evidence is not the lack of clarity but, rather, the shifting of facts from one telling of the incident to the next. Each differing version of the events was put forward by this witness as a sincere and accurate recollection. 65 When a witness is comfortable with giving differing versions of the same event, it suggests a degree of carelessness with the truth that diminishes the general reliability of the witness.

Disclosure of an Ongoing Relationship 66 Lu. De. swore to the police that after the alleged assault in 2003 she only saw Mr. Ghomeshi “in passing”. She was polite to him, only because she did not want to jeopardize her future professional prospects. She “didn’t pursue any kind of relationship” with him. Ms. De. was asked directly by the police interviewers to tell them everything about her relationship with Mr. Ghomeshi, before and after the alleged assault. 67 It became clear at trial that Ms. De. very deliberately chose not to be completely honest with the police. Her statement to the police was what initiated these proceedings. This statement was subject to a formal caution concerning the potential criminal consequences of making a false statement. It was given under oath, an oath to tell the truth, the whole truth and nothing but the truth, not a selective version of the truth. De- spite this formal caution and oath, Ms. De. proceeded to consciously suppress relevant and material information. This reflects very negatively on her general reliability and credibility as a witness. It indicates a failure to take the oath seriously and a wilful carelessness with the truth. 68 On the evening of the second day of trial and just before Ms. De. was set to testify, her lawyer approached Crown counsel with a question. If there was more to the post-assault relationship between Ms. De. and Mr. Ghomeshi than what had already been disclosed, would the Crown be interested in knowing about it? I can only imagine Crown counsel’s reaction. 30 CRIMINAL REPORTS 27 C.R. (7th)

69 A further formal, sworn police statement was taken from Ms. De. and then disclosed to the defence. This new statement disclosed for the first time the fact that Ms. De. sent flowers to Mr. Ghomeshi days after the alleged choking. It disclosed for the first time that she and Mr. Ghomeshi spent a considerable amount of time together in Banff in 2004. She also acknowledged that there were additional emails between them. All of this was deliberately withheld by Ms. De. up until this point in time. 70 I do not accept that Ms. De. could have sincerely thought that all this was inconsequential and of no interest to the prosecution. She may have been afraid to disclose this information. She may have been embarrassed to disclose this information. These would not be unreasonable feelings; but to say that she decided not to disclose this information because she thought it was of no importance is just not credible. 71 To make matters worse, when given this last minute opportunity to make full disclosure, she still failed to do so.

Additional Deception Revealed in Cross-examination 72 In an effort to explain to the Court her continued socializing with Mr. Ghomeshi following the alleged choking incident and over the rest of the 2003 Canada Day weekend, Ms. De. testified that she wanted to “normalize” the situation and “flatten the negative”, and to not make him feel like a bad host. So, she stuck with their plans and she continued to see him over the weekend. She testified that she kept her distance and certainly did not do anything intimate with him. Having firmly committed herself to this position, she was then confronted with a photograph of herself cuddling affectionately in the park with Mr. Ghomeshi the very next day.

Banff 2004 73 Ms. De.’s new disclosure included, for the first time, information about her contact with Mr. Ghomeshi at the 2004 Banff festival, including the “Hit Me Baby One More Time” karaoke duet. She attempted to explain the last minute timing of this disclosure as being the “first chance” that she felt she had to tell anyone. I find this explanation uncon- vincing coming from a witness who had been interviewed dozens of times prior to trial, had established a continual flow of email correspondence with the investigating police, and who had her own lawyer involved in the case for a year and a half leading up to the trial. If she truly R. v. Ghomeshi William B. Horkins J. 31

intended to provide this information, she had ample means and opportunity to do so. 74 After the 2004 Banff festival, Ms. De. sent Mr. Ghomeshi a photograph of their Banff Springs “Hit Me Baby One More Time” karaoke performance with the caption “proof that you can’t live without me.” When confronted in cross-examination with this photograph and the “playful” caption, her explanation was that this was part of an effort to make Mr. Ghomeshi “less of an assaulter and more of a friend.” This explanation lacks credibility when combined with the further details brought out in cross-examination about the Banff 2004 visit. 75 In advance of going to Banff, Ms. De. emailed Mr. Ghomeshi and told him that she wanted to “play” with him when they were in Banff. She suggested that maybe they would have a “chance encounter in the broom closet.” The response from Mr. Ghomeshi was expressly non- committal, “I’d love to hang but can’t promise much.” 76 Ms. De. emailed back to Mr. Ghomeshi saying she was going to “beat the crap” out of him if they didn’t hang out together in Banff and that she would like to “tap [him] on the shoulder for breakfast.” This correspondence paints a suggestive picture. It reads as if Ms. De. was, at that point in time, clearly pursuing Mr. Ghomeshi with an interest in spending more time together. 77 A natural assumption might be that what was actually stopping Ms. De. from sharing all of this undisclosed information, was the fear that to some audiences this post-event socializing would reflect badly on her claims that this man had in fact assaulted her. 78 Had she genuinely feared that this sort of thinking would unfairly undermine her credibility, that concern might have been an explanation worth giving careful consideration. However she offered an entirely different explanation for supressing this information. 79 Ms. De. said her plan was to disclose all of these things once the trial began. She said that she had always intended to reveal this information but thought that the trial would be her first chance to do so. With respect, that explanation seems unreasonable to me. Ms. De. had literally dozens of pre-trial opportunities to provide the full picture to the authorities. I suspect the truth is she simply thought that she might get away with not mentioning it. 32 CRIMINAL REPORTS 27 C.R. (7th)

The Flowers 80 Another item in the new disclosure statement was the information that Ms. De. sent flowers to Mr. Ghomeshi following the Canada Day weekend in Toronto. Within days of when she says she was choked by Mr. Ghomeshi, she sent him flowers to thank him for being such a good host. Sending thank you flowers to the man who had just choked you, may seem like odd behaviour. I acknowledge that this might be part of her effort, as she said, to normalize the situation. However, whether or not this behaviour should be considered unusual or not, this was very clearly relevant and material information in the context of a sexual assault allegation. The deliberate withholding of the information reflects very poorly on Ms. De.’s trustworthiness as a witness.

The Undisclosed Evidence of a Continued Relationship 81 I find as a fact that Ms. De. attempted to mislead the Court about her continued relationship with Mr. Ghomeshi. It was only during cross-examination that her expressed interest in a continuing close relationship was revealed. 82 Ms. De. testified that after the weekend in Toronto in July 2003, she definitely knew that she did not want to have a romantic relationship with Mr. Ghomeshi. She gave us her “guarantee” under oath that she had no romantic feelings for Mr. Ghomeshi. Even in her late disclosure, just prior to taking the stand, Ms. De. claimed that any personal contact with Mr. Ghomeshi following the Canada Day long-weekend in 2003 was simply an attempt to “flatten out [her] negative.” She maintained that any emails that she sent to Mr. Ghomeshi following that weekend were “in- different” in tone and not “playful”, as they had been previously. 83 Once again this was simply not true. In an email sent just two weeks later, on July 17, 2003, Ms. De. told Mr. Ghomeshi that he was “magic”. On July 25, 2003, three weeks after the alleged assault, she wrote to Mr. Ghomeshi that she was “really glad to know you”. On April 6, 2004, she wrote an email to Mr. Ghomeshi suggesting help with “an itch that you need... scratching”. On October 19, 2005, she sent him what she described herself as a “ridiculous, sexualized photo” of herself with the neck of a beer bottle in her mouth simulating an act of fellatio. As recently as September 8, 2010, she posted a Facebook message fondly re- calling the 2003 Canada Day weekend. R. v. Ghomeshi William B. Horkins J. 33

84 On July 5th 2003, within twenty-four hours of the alleged choking incident, Ms. De. emailed Mr. Ghomeshi with the message: Getting to know you is literally changing my mind, in a good way. You challenge me and point to stuff that has not been pulled out in a very long time. I can tell you about that sometime and everything about our friendship so far will make sense. You kicked my ass last night and that makes me want to fuck your brains out, tonight. There is not a trace of animosity, regret or offence taken, in that message. 85 Five days after the alleged choking assault, Ms. De. was home in Hal- ifax and she sent a hand-written love letter to Jian Ghomeshi. She expressed her regret that she and Mr. Ghomeshi had not spent that night together. The letter concludes, “I love your hands.” When confronted with this seemingly incongruous message, from someone who claims to have been recently choked by the recipient’s hands, she said that she was intentionally referencing the thing that had hurt her. 86 Ms. De. attempted to explain this correspondence as an effort at “flat- tening the negative” or normalizing a relationship. I acknowledge that the Court must guard against assuming that seemingly odd reactive behaviour of a complainant necessarily indicates fabrication. However, this is an illustration of the witness’s actual behaviour, evidenced by her own written expressions. It is behaviour that is out of harmony with her evidence in-chief and her multiple pre-trial statements to the media and to the police. 87 In the framework of a credibility analysis in a criminal trial, Ms. De.’s attempt to hide this information evidences a manipulative course of conduct. This raises additional and mounting concerns regarding her reliability as a witness. 88 In trying to reconcile the apparent disconnect between Ms. De.’s evidence and some of the established facts, another perhaps more subtle but related concern needs to be identified. It may be entirely natural for a victim of abuse to become involved in an advocacy group. However, the manner in which Ms. De. embraced and cultivated her role as an advocate for the cause of victims of sexual violence may explain some of her questionable conduct as a witness in these proceedings. 89 On December 9, 2014, she told S.D., that she, Ms. De. the professional actor, was excited for the trial because it was going to be “...theatre at its best.” “...Dude, with my background I literally feel like I was prepped to take this on, no shit.” “...This trial does not freak me out. I invite the media shit.” 34 CRIMINAL REPORTS 27 C.R. (7th)

90 Ms. De. engaged the services of a publicist for her involvement in this case. She gave 19 media interviews and received massive attention for her role in this case. Hashtag “ibelievelucy” became very popular on Twitter and she was very excited when the actor Mia Farrow tweeted support and joined what Ms. De. referred to as the “team”. In an interview with CTV news, Ms. De. even analogized her role in this whole matter to David Beckham’s role as spokesperson with Armani. 91 I have to consider whether as a member of this “team”, Ms. De. felt that she had invested so much in being a “heroine” for the cause that this may have been additional motivation to suppress any information that, in her mind, might be interpreted negatively. I do not have sufficient evidence to conclude that this was in fact a reason for suppressing evidence, but in light of the amount of compromising information that she wilfully attempted to supress, it cannot be ignored as a live question. 92 In her email correspondence with one of the other complainants, exchanged after the charges were laid, Ms. De. expressed strong animosity towards Mr. Ghomeshi. She said she wanted to see that Mr. Ghomeshi was “fucking decimated” and stated, “the guy’s a shit show, time to flush”; and then very bluntly just, “Fuck Ghomeshi”. 93 All of the extreme animosity expressed since going public with her complaint in 2014 stands in stark contrast to the flirtatious correspondence and interactions of 2003 and 2004, words and actions that are pre- served in the emails and photographs she says she forgot about. 94 Let me emphasize strongly, it is the suppression of evidence and the deceptions maintained under oath that drive my concerns with the reliability of this witness, not necessarily her undetermined motivations for doing so. It is difficult to have trust in a witness who engages in the selective withholding relevant information.

The Evidence of Ms. Dunsworth 95 Ms. Dunsworth, a close friend of Ms. De. gave a sworn statement to the Halifax police in November of 2015 in which she stated that at some point, about ten years ago, Ms. De. spoke to her about a choking incident that had occurred while she was on a date with Mr. Ghomeshi. Ms. De. wondered if her friend agreed that it was “weird”. This evidence was tendered for the very limited purpose of offsetting any implied allegation of “recent fabrication” that may have arisen from the cross-examination of Ms. R. v. Ghomeshi William B. Horkins J. 35

96 Shortly before Ms. Dunsworth was interviewed by the police, Ms. De. contacted her to advise her that the police needed to speak to her. She told her friend that she had already advised the police that she had told Ms. Dunsworth “AGES ago”, (in capital letters for emphasis I assume) about what had happened with Mr. Ghomeshi. She added, “It makes me look like I am not a copycat...”. The response from Ms. Dun- sworth was, “corroborate ha ha” ... “ya, no prob”. 97 At the time that this evidence was tendered, I admitted it into evidence because I was concerned that it might ultimately be inferred that the complaint was fabricated in 2014. To be clear, this was my concern at the time. Counsel for the accused did not make an express allegation of “recent” fabrication in this case. 98 The rule of evidence against the admissibility of this sort of earlier statement of a witness is a rule against “self-corroboration”. Having spo- ken of something similar a decade ago does not make the present allegation anymore true or false. The fact of the earlier discussion simply off- sets any inference that it was fabricated in 2014. Being consistent is a trait that can be common to either the truth or a lie, and so is logically no more probative of the substance of the evidence at trial being true or being false. 99 Ms. Dunsworth’s evidence places Ms. De.’s private complaint well before the public events of 2014. Apart from this limited use, the evidence is of little assistance with respect to the general veracity of Ms. De.’s evidence at trial.

The Complaint of S.D. 100 The charge relating to S.D. alleges a sexual assault said to have occurred sometime between July 15th, 2003 and the 2nd of August 2003. 101 The allegation is that on the material date, while “making out” on a secluded park bench, Mr. Ghomeshi squeezed S.D.’s neck forcefully enough to cause discomfort and interfere with her ability to breathe. 102 At the time of these events, S.D. was a dancer in a production performing in a Toronto park. She knew, or at least knew of, Mr. Ghomeshi through her involvement in the arts and entertainment industry. Follow- ing a particular performance, Mr. Ghomeshi approached her and initiated a conversation. This led to a dinner date and a second post-performance meeting in the park. 36 CRIMINAL REPORTS 27 C.R. (7th)

103 It was after dark. S.D. and Mr. Ghomeshi strolled to the baseball dia- mond for privacy. They sat on a bench and kissed. She felt his hands and his teeth on and around her neck. It was rough and it was unwelcome. It was “not right” and it caused her difficulty in breathing. It lasted a few seconds. Nothing was said about it at the time. 104 S.D. and Mr. Ghomeshi socialized two or three more times in the days and weeks following this incident in the park, and then had no further relationship. This is the extent of what S.D. initially related to the police. 105 S.D. was not particularly precise or consistent in the details of the alleged assault. She explained that some of the imprecision in her initial account to the police was due to her still “trying to figure it out”. 106 Some lack of precision is to be expected in any report of conduct from over a decade earlier. However, it is reasonable to expect that a true account of significant events will not vary too dramatically from time to time in the telling. The standard of proof in a criminal case requires sufficient clarity in the evidence to allow a confident acceptance of the essential facts. This portion of S.D.’s evidence at trial illustrates my concern on this last point: He had his hand - it was sort of - it was sort of his hands were on my shoulders, kind of on my arms here, and then it was - and then I felt his teeth and then his hands around my neck. ... It was rough but - yeah, it was rough. ... Q. Were his hands open, were they closed? A. It’s really hard for me to say, but it was just - I just felt his hands around my neck, all around my neck. ... And I - I think I tried to - I tried to get out of it and then his hand was on my mouth, sort of smothering me. Q. Okay. I’m going to go back. So the hands were around your neck. How long were they around your neck? A. Seconds. A few seconds. Ten seconds. I don’t even - I don’t - it’s hard to know. It’s hard to know. Q. And did his hands around your neck cause you any difficul- ties breathing? A. Yes. R. v. Ghomeshi William B. Horkins J. 37

Possible Collusion 107 S.D. said that her decision to come forward was inspired by others coming forward in 2014. She consumed the media reports and spoke to others for about six weeks after the “Ghomeshi Scandal” broke in the media. Although she initially testified that she and Ms. De. never discussed the details of her experience prior to her police interview. in cross-examination she admitted that in fact she had. 108 I am alert to the danger that some of this outside influence and information may have been imported into her own admittedly imprecise recollection of her experience with Mr. Ghomeshi. 109 The extreme dedication to bringing down Mr. Ghomeshi is evidenced vividly in the email correspondence between S.D. and Ms. De. Between October 29, 2014 and September 2015, S.D. and Ms. De. exchanged approximately 5,000 messages. While this anger and this animus may simply reflect the legitimate feelings of victims of abuse, it also raises the need for the Court to proceed with caution. Ms. De. and S.D. considered themselves to be a “team” and the goal was to bring down Mr. Ghomeshi. 110 The team bond between Ms. De. and S.D. was strong. They discussed witnesses, court dates and meetings with the prosecution. They described their partnership as being “insta sisters”. They shared a publicist. They initially shared the same lawyer. They spoke of together building a “Jenga Tower” against Mr. Ghomeshi. They expressed their top priority in the crude vernacular that they sometimes employed, to “sink the prick,... ’cause he’s a fucking piece of shit.”

The Last Minute Disclosure 111 S.D. met with Crown counsel five times in the year prior to the trial of this matter. On each occasion she was reminded of the need to be completely honest and accurate. At no time until almost literally the eve of being called to the witness stand did she reveal the whole truth of her relationship with Mr. Ghomeshi. The most dramatic aspect of S.D.’s evidence was her last minute disclosure to the prosecution of sexual activity with Mr. Ghomeshi on a date following the date of the alleged assault in the park. 112 It is now apparent that in her initial interviews, S.D was putting forward her non-association with Mr. Ghomeshi after the assault, as evidence that she had reason to fear him. She said that she “always kept her distance” from Mr. Ghomeshi. She felt unsafe around Mr. Ghomeshi. In 38 CRIMINAL REPORTS 27 C.R. (7th)

her statement to the police she acknowledged that she went out a couple of times with Mr. Ghomeshi after the alleged assault but underscored that it was always in public. She told the police that “the extent of it is, we’re going to be in public.” They went to a bar and they had a dinner date. 113 At trial, a very different truth was revealed. After meeting with Mr. Ghomeshi at a bar, in public, she took him back to her home and, to use her words, they “messed around”. She gave him a “hand job”. He slept there for a while then went home. This of course was dramatically contrary to her earlier statement that she “tried to stay in public with him” and keep her distance. S.D. acknowledged that her earlier comments were a deliberate lie and an intentional misrepresentation of her brief relationship with Mr. Ghomeshi. 114 S.D.’s decision to supress this information until the last minute, prior to trial, greatly undermines the Court’s confidence in her evidence. In assessing the credibility of a witness, the active suppression of the truth will be as damaging to their reliability as a direct lie under oath. 115 S.D. claimed that she did not think it was important to disclose this intimate contact and said she wasn’t “specifically” asked about post-assault sexual activity with Mr. Ghomeshi. She ultimately acknowledged that she left out things because she felt it didn’t fit “the pattern”. And when pressed further in cross-examination, she said that she did not think that what had happened between them at her home qualified as “sex”. 116 On February 25, 2004, more than six months after the alleged assault in the park, S.D. sent Mr. Ghomeshi an email which included her asking him, “Still want to have that drink sometime?” These are not the words of someone endeavouring to keep her distance. 117 When S.D. decided to make this disclosure, the other two complainants had already given evidence and had been seriously embarrassed when confronted with their own dramatic non-disclosures. S.D. had reviewed her sworn police complaint the week prior to trial and at that time offered no additions, qualifications or corrections. She says that she inadvertently heard something on the radio about emails being presented to the other complainants. She realized at that point that everything was going to come out and that it was time to disclose the true extent of their relationship. 118 I accept Ms. Henein’s characterization of this behaviour. S.D. was clearly “playing chicken” with the justice system. She was prepared to tell half the truth for as long as she thought she might get away with it. Clearly, S.D. was following the proceedings more closely than she cared R. v. Ghomeshi William B. Horkins J. 39

to admit and she knew that she was about to run head first into the whole truth. 119 S.D offered an excuse for hiding this information. She said that this was her “first kick at the can”, and that she did not know how “to navi- gate” this sort of proceeding. “Navigating” this sort of proceeding is really quite simple: tell the truth, the whole truth and nothing but the truth.

The Framework of Analysis 120 The fundamental framework of analysis in a criminal trial is often left significantly abbreviated in judge alone trials. In this case, however, it is important to state this framework clearly. It plays the central role in the determination of this matter.

The Presumption of Innocence 121 The primary and overarching principle in every criminal trial is the presumption of innocence. This is the most fundamental principle of our criminal justice system. It is essential to understand that this presumption of innocence is not a favour or charity extended to the accused in this particular case. To be presumed innocent until proven guilty by the evidence presented in a court of law, is the fundamental right of every person accused of criminal conduct.

Proof Beyond Reasonable Doubt 122 Interwoven with the presumption of innocence is the standard of proof required to displace that presumption. To secure a conviction in a criminal case the Crown must establish each essential element of the charge against the accused to a point of “proof beyond reasonable doubt”. This standard of proof is very exacting. It is a standard far beyond the civil threshold of proof on a balance of probabilities. 123 The law recognizes a spectrum of degrees of proof. The police lay charges on the basis of “reasonable grounds to believe” that an offence has been committed. Prosecutions only proceed to trial if the case meets the Crown’s screening standard of there being “a reasonable prospect of conviction”. In civil litigation, a plaintiff need only establish their case on a “balance of probabilities”. However to support a conviction in a criminal case, the strength of evidence must go much farther and establish the Crown’s case to a point of proof beyond a reasonable doubt. This is not a standard of absolute or scientific certainty, but it is a standard that certainly approaches that. Anything less entitles an accused to the 40 CRIMINAL REPORTS 27 C.R. (7th)

full benefit of the presumption of innocence and a dismissal of the charge. 124 The expression proof “beyond a reasonable doubt” has no precise definition, but it is well understood. The Supreme Court of Canada outlined a suggested model jury charge in R. v. Lifchus1. This is the defini- tive guide for criminal trial courts in Canada. It is worth setting out here verbatim: • The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. • A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. • Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. • On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high. • In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt. I instruct myself accordingly.

The Historical Nature of the Complaints 125 The allegations before the Court in this case are legally referred to as “historical complaints” in the sense that they are complaints made now with respect to events that occurred many years ago. The courts recognize that trials of long past events can raise particular challenges due to

1 [1997] 3 S.C.R. 320 (S.C.C.) R. v. Ghomeshi William B. Horkins J. 41

the passage of time. Memories tend to fade, and time tends to erode the quality and availability of evidence. 126 Each of the complainants in this case pointed to certain aspects of the publicity surrounding Mr. Ghomeshi’s very public termination from the CBC in 2014 as the trigger for coming forward with their complaints more than a decade after the fact. The law is clear: there should be no presumptive adverse inference arising when a complainant in a sexual assault case fails to come forward at the time of the events. Each complainant articulated her own very valid reasons for not coming forward at the time of the events. The law also recognizes that there should be nothing presumptively suspect in incremental disclosure of sexual assaults or abuse. Each case must be assessed individually in light of its own unique set of circumstances.

Similar Act Evidence 127 Similar act evidence is presumptively inadmissible. Evidence of an accused’s alleged propensity to commit the particular type of crime with which he is charged with is inadmissible. The Crown expressly agreed that each complaint contained in the Information before the Court must be determined on its own merits.

Conclusions 128 I have very deliberately considered the evidence relating to each of the charges separately. Each complainant in this case had a different and unique experience with Mr. Ghomeshi. However, there are certain common aspects to their cases. Each had some involvement in the arts and entertainment world, which brought them into contact with the accused: an event catering waiter; an actor; and a dancer. Each complainant accused him of a certain act of violence in the context of a brief dating relationship. Each one chose not to make a complaint to the authorities until years after the fact. Each one came forward in 2014 in the wake of, or in the midst of, the extensive publicity surrounding the very public termination of Mr. Ghomeshi at the CBC. 129 Each complainant chose to come forward to the media first and then subsequently gave sworn video-recorded statements to the police. 130 Each complainant was aware of Mr. Ghomeshi and his celebrity status prior to meeting him. Each was a fan to some greater or lesser extent. Each had a brief relationship with him that ended badly. Each one com- plains of some degree of violence occurring in the course of some inti- 42 CRIMINAL REPORTS 27 C.R. (7th)

macy: a very forceful yank on the hair; being grabbing by the hair and punched in the head; a choke hold with slaps to the face and hands squeezing at the neck. Each event passed as quickly as it occurred. Each complainant acknowledged maintaining some brief, amicable contact with the accused after the fact and then moving on. These were the complaints that gave rise to the charges before this Court. 131 There is no legal bar to convicting on the uncorroborated evidence of a single witness. However, one of the challenges for the prosecution in this case is that the allegations against Mr. Ghomeshi are supported by nothing in addition to the complainant’s word. There is no other evidence to look to determine the truth. There is no tangible evidence. There is no DNA. There is no “smoking gun”. There is only the sworn evidence of each complainant, standing on its own, to be measured against a very exacting standard of proof. This highlights the importance of the assessment of the credibility and the reliability and the overall quality, of that evidence. 132 At trial, each complainant recounted their experience with Mr. Ghomeshi and was then subjected to extensive and revealing cross-examination. The cross-examination dramatically demonstrated that each complainant was less than full, frank and forthcoming in the information they provided to the media, to the police, to Crown counsel and to this Court. 133 Ultimately my assessment of each of the counts against the accused turns entirely on the assessment of the reliability and credibility of the complainant, when measured against the Crown’s burden of proof. With respect to each charge, the only necessary determination is simply this: Does the evidence have sufficient quality and force to establish the accused’s guilt beyond a reasonable doubt? 134 Mr. Ghomeshi did not testify and he called no evidence in defence of the allegations. One of the most important organizing principles in our criminal law is the right of an accused not to be conscripted into building a case against oneself. Every accused facing criminal allegations is entitled to plead not guilty and put the Crown to the strict proof of the charges. An accused has every right to remain silent, call no evidence and seek an acquittal on the basis that the Crown’s case fails to establish his guilt beyond a reasonable doubt. No adverse inference arises from his decision to do so in this case. 135 As I have stated more than once, the courts must be very cautious in assessing the evidence of complainants in sexual assault and abuse cases. R. v. Ghomeshi William B. Horkins J. 43

Courts must guard against applying false stereotypes concerning the expected conduct of complainants. I have a firm understanding that the reasonableness of reactive human behaviour in the dynamics of a relationship can be variable and unpredictable. However, the twists and turns of the complainants’ evidence in this trial, illustrate the need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful. Each individual and each unique factual scenario must be assessed according to their own particular circumstances. 136 Each complainant in this case engaged in conduct regarding Mr. Ghomeshi, after the fact, which seems out of harmony with the assaultive behaviour ascribed to him. In many instances, their conduct and comments were even inconsistent with the level of animus exhibited by each of them, both at the time and then years later. In a case that is entirely dependent on the reliability of their evidence standing alone, these are factors that cause me considerable difficulty when asked to accept their evidence at full value. 137 Each complainant was confronted with a volume of evidence that was contrary to their prior sworn statements and their evidence in-chief. Each complainant demonstrated, to some degree, a willingness to ignore their oath to tell the truth on more than one occasion. It is this aspect of their evidence that is most troubling to the Court. 138 The success of this prosecution depended entirely on the Court being able to accept each complainant as a sincere, honest and accurate witness. Each complainant was revealed at trial to be lacking in these important attributes. The evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception. 139 The harsh reality is that once a witness has been shown to be deceptive and manipulative in giving their evidence, that witness can no longer expect the Court to consider them to be a trusted source of the truth. I am forced to conclude that it is impossible for the Court to have sufficient faith in the reliability or sincerity of these complainants. Put simply, the volume of serious deficiencies in the evidence leaves the Court with a reasonable doubt. 140 My conclusion that the evidence in this case raises a reasonable doubt is not the same as deciding in any positive way that these events never happened. At the end of this trial, a reasonable doubt exists because it is impossible to determine, with any acceptable degree of certainty or com- 44 CRIMINAL REPORTS 27 C.R. (7th)

fort, what is true and what is false. The standard of proof in a criminal case requires sufficient clarity in the evidence to allow a confident acceptance of the essential facts. In these proceedings the bedrock foundation of the Crown’s case is tainted and incapable of supporting any clear determination of the truth. 141 I have no hesitation in concluding that the quality of the evidence in this case is incapable of displacing the presumption of innocence. The evidence fails to prove the allegations beyond a reasonable doubt. 142 I find Mr. Ghomeshi not guilty on all of these charges and they will be noted as dismissed. Accused found not guilty. Ghomeshi: Dangers in Overreacting to this High Profile Acquittal 45

Ghomeshi: Dangers in Overreacting to this High Profile Acquittal Don Stuart*

Much of public reaction in the media reaction to this high profile acquittal in R.v. Ghomeshi1 has been negative. Major concerns include that the decision will further discourage victims from reporting sexual assaults to the police and prosecutors, that it was outrageous that the accused did not testify and face cross-examination, that the complainants were vilified in cross-examination, and that “survivors must be believed”. It is unfortunate that few recognised the reality that “he said/ she said” sexual assault trials in our courts are very rarely resolved with the accused exercising the right to remain silent. Of course the key to understanding this case, as carefully pointed out by the trial judge, Justice Horkins, is that all three complainants chose not to disclose their subsequent relationship with the accused until just before the trial. The trial judge understandably concluded that this made it impossible to determine the truth given their prior denial of any subsequent relationship with the accused. There was also a major problem of collusion amongst the complainants. Commendably few critics are calling for the reversal of the burden on the Crown to prove guilt beyond a reasonable doubt. Our criminal justice system is proudly based on the presumption of innocence and a rigorous process of trying to determine the truth through cross-examination. Some have called for complainants to have separate legal representation independent of the Crown. The irony here is that each of the three complainants did have separate legal representation. Those lawyers may have failed their clients in not advising them to tell the whole truth and to hold nothing back. Don’t blame the Crown Attorney. He was caught completely off guard by the complainants’ failure to give timely disclosure of information highly pertinent to a full and fair assessment of their credibility.

* Faculty of Law, Queen’s University 1 2016 CarswellOnt 4246 (Ont. C.J.), reported above at p. 17 [Ghomeshi]. 46 CRIMINAL REPORTS 27 C.R. (7th)

Some are now calling for a tougher rape law protection to ensure that post charge conduct of the complainant is automatically inadmissible. If such a rule had been in place in this trial the accused would surely have had an unfair trial. Our rape shield laws are already amongst the toughest in the Western legal systems especially in their application not only to sexual conduct with others but also sexual conduct with the accused. In this respect Canada’s approach was expressly rejected by the Law Lords in R. v. A.2 Some suggest a greater resort to civil actions for sexual assault because of the lower burden of proof on a balance of probabilities. That is true but the difference can be exaggerated. According to the Supreme Court in F.H. v. McDougall 3 that standard is one that does not change com- mensurate with the circumstances but the evidence must “always be sufficiently clear, convincing and cogent”: There are also systemic issues with the civil process. Yes the accused would have no right to silence and would be forced to testify and be cross-examined. However plaintiffs are also much less protected with no applicable rape shield or Charter rights to limit cross-examination. Furthermore access to justice issues in the form of high costs would only allow a plaintiff with deep financial resources to sue and a plaintiff would only recover adequate compensa- tion if the defendant was able to pay the damage award. Money awards rather than just punishment such as gaol would likely often provide little or insufficient satisfaction to victims. Some pin hopes on a “restorative justice” process. This concept is notori- ously difficult to define. Advocates often have quite different aims in mind. In any event it is hard to imagine that effective reconciliation in any form between accused and victims could be contemplated or achieved unless the accused fully confesses without being coerced to do so.

2 [2001] 2 W.L.R. 1546 (U.K. H.L.) 3 [2008] 3 S.C.R. 41 (S.C.C.) R. v. Ghomeshi: Telling the Whole Truth Might Not Have Changed the Result 47

R. v. Ghomeshi: Telling the Whole Truth Might Not Have Changed the Result Janine Benedet*

R.v. Ghomeshi1 can be read as an unremarkable sexual assault case that does not raise any new issues of law and simply applies well-established principles of the presumption of innocence and the standard of proof beyond a reasonable doubt to the evidence of witnesses who were shown to be unreliable, selective and, in the case of two of them, communicating with each other to strategize how to “take down” the accused. At another level, however, it cannot be ignored that the case has gener- ated extensive public debate about whether sexual assault trials, as currently constructed, are fair to victims of sexual assault. The large number of victims who came forward publicly to report sexual violence and har- assment by the accused left members of the public wondering how he could have been acquitted. The admonition by justice system participants that we should not try individuals by social media and instead leave it to the courts can seem unfair to laypersons when the judge can reach a verdict without having to decide if the sexual assaults actually took place. While Ghomeshi is legally straightforward, and the acquittals entirely un- surprising given how the evidence unfolded, it does present an opportunity to consider other questions about how we try sexual assault cases. First, the decision raises the relevance of sexual activity or communications between the complainant and the accused after the event. If the complainants had been entirely forthcoming about these additional encounters, would this have been held against them anyway, not as going to their credibility generally but instead as making it less likely that the earlier encounters were non-consensual or violent? Is that why the accused saved some of this material for over a decade? Judges and juries may be unaware that some victims of sexual assault continue to date their assailant while they come to terms with what happened to them, in the hope of making things “normal”. The evidence of the first complainant also

* Allard School of Law, University of British Columbia 1 2016 CarswellOnt 4246 (Ont. C.J.), reported above at p.17 [Ghomeshi]. 48 CRIMINAL REPORTS 27 C.R. (7th) raised questions about our assumptions about the way that memory works after a traumatic event. Once again, there is a body of social sci- ence evidence that makes clear that we may splice in details into the surrounding fabric of traumatic memories, so that we are sure that the yellow car we saw the accused driving months later was the one he was driving on the night of the assault. This does not mean that the traumatic event itself did not happen. A second issue worth considering is how we deal with evidence of animosity by a complainant toward an accused. The communications between two of the complainants were problematic inasmuch as they could be read as one complainant dominating and directing the other in ways that may have affected her testimony. However, we should consider whether we treat animosity by sexual assault victims differently than we would for a victim of another crime. If the teller who is terrified by a bank robbery, or the pedestrian who is hit by a drunk driver, wants the court to lock the offender up and throw away the key, do we find this reaction suspicious or destructive of her credibility, or just one of the many reactions that someone who is harmed may legitimately display? It may be that this response is portrayed as vindictiveness only in the context of women who accused men of sexual assault. It is important that the criminal process for sexual assault charges provide the accused with a fair trial in accordance with the presumption of innocence and the right to remain silent. It is also important that we not draw conclusions or make assumptions about sexual assault complainants that are not visited on other witnesses or that are rooted in flawed “common sense” that may not accord with reality. R. v. Villaroman 49

[Indexed as: R. v. Villaroman] Her Majesty the Queen, Respondent and Oswald Oliver Villaroman, Appellant Alberta Court of Appeal Docket: Calgary Appeal 1301-0329-A 2015 ABCA 104 Jean Cˆot´e, Brian O’Ferrall JJ.A., Alan Macleod J. (ad hoc) Heard: February 10, 2015 Judgment: March 18, 2015 Evidence –––– Proof — Standard — Circumstantial evidence — In criminal matters — Miscellaneous –––– Circumstantial evidence cannot prove guilt where it leaves reasonable possibility the event occurred in way not involving accused. Post-trial procedure –––– Appeal from conviction or acquittal — Appeal from unreasonable verdict –––– Accused’s conviction for possession of child pornography unreasonable where evidence not excluding possibility someone else put pornography on accused’s computer without his knowledge. The accused was charged with possession of child pornography and other offences after a repair technician found child pornography on his computer. Police obtained a warrant and searched the computer, locating 36 items of child pornography in a music-sharing folder. The computer was a portable laptop and was not password protected. The defence admitted that two people who lived with the accused did not put the pornography on the computer. There was no evidence of whether anyone else lived in the home, how many people frequented the home, or where the computer was regularly kept. The trial judge found the accused guilty of possession of child pornography and acquitted him on the other charges. The accused appealed his conviction. Held: The appeal was allowed. The conviction was set aside and an acquittal was entered. The trial judge erred in concluding that an innocent explanation for the facts must flow from some evidence. Actual evidence of the innocent possibility is not required. Rather, an innocent explanation may arise from an absence of evidence and the onus is on the Crown to disprove it. Circumstantial evidence cannot prove guilt where it leaves a reasonable possibility that the event occurred in a way not involving the accused. The trial judge misstated the law on proof in a circumstantial case and put the burden on the accused to prove something. 50 CRIMINAL REPORTS 27 C.R. (7th)

Moreover, on the facts the conviction was unreasonable. Given that the computer was a portable laptop that was not password protected, anyone with recurring access to the computer could have put all the child pornography on the computer. There was no evidence about how many people might have enjoyed such access. In these circumstances, the possibility that someone put the child pornography on the accused’s computer without his knowledge could not be excluded. On the skimpy evidence presented in this case, no properly-instructed jury could convict. Cases considered: R. v. Griffin (2009), 2009 CarswellQue 5997, 2009 CarswellQue 5998, 2009 SCC 28, 67 C.R. (6th) 1, 388 N.R. 334, 307 D.L.R. (4th) 577, 244 C.C.C. (3d) 289, [2009] 2 S.C.R. 42, [2009] S.C.J. No. 28 (S.C.C.) — referred to R. v. Khela (2009), 62 C.R. (6th) 197, 238 C.C.C. (3d) 489, 301 D.L.R. (4th) 257, 383 N.R. 279, 265 B.C.A.C. 31, 446 W.A.C. 31, 2009 SCC 4, 2009 CarswellBC 69, 2009 CarswellBC 70, [2009] 1 S.C.R. 104, [2009] S.C.J. No. 4 (S.C.C.) — referred to R. v. Pryce (2014), (sub nom. R. v. Defaveri) 361 B.C.A.C. 301, (sub nom. R. v. Defaveri) 619 W.A.C. 301, 2014 BCCA 370, 2014 CarswellBC 2899, [2014] B.C.J. No. 2456 (B.C. C.A.) — referred to R. v. Tyrell (2014), 2014 ONCA 617, 2014 CarswellOnt 14827, 123 O.R. (3d) 109, 325 O.A.C. 150, 15 C.R. (7th) 316, 316 C.C.C. (3d) 257, [2014] O.J. No. 5653 (Ont. C.A.) — referred to R. v. Yebes (1987), 1987 CarswellBC 243, 1987 CarswellBC 705, [1987] 6 W.W.R. 97, [1987] 2 S.C.R. 168, (sub nom. Yebes v. R.) 43 D.L.R. (4th) 424, 78 N.R. 351, 17 B.C.L.R. (2d) 1, 36 C.C.C. (3d) 417, 59 C.R. (3d) 108, [1987] S.C.J. No. 51 (S.C.C.) — referred to 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 to Criminal Code, R.S.C. 1985, c. C-46 s. 686(1)(b)(iii) — considered

APPEAL by accused from decision reported at R. v. Villaroman (2013), 2013 ABQB 279, 2013 CarswellAlta 857, [2013] A.J. No. 538, 83 Alta. L.R. (5th) 297, 562 A.R. 105 (Alta. Q.B.), in which he was convicted of possessing child pornography.

J. Wuttunee, for Respondent I.D. McKay, H. Ferg, for Appellant R. v. Villaroman The Court 51

The Court: Introduction 1 The appellant was having mechanical problems with his laptop computer, so he took it to and left it with a repair shop, along with his true name and address. The computer was not password-protected. The repair technician found some child pornography on the laptop computer in a music-sharing folder. He called the police, who got a special type of search warrant and used it to find the child pornography. The trial judge admitted the evidence and convicted the appellant of possessing child pornography. (He was acquitted of other charges.) The trial judge’s reasons are reported at 2013 ABQB 279, 562 A.R. 105 (Alta. Q.B.).

Issues 2 At trial, two issues were argued at considerable length: (a) whether the search method used violated the Charter, and (b) whether the Crown proved that the accused put the pornography on the computer, or knew it was there. 3 Both issues were argued on appeal. 4 So though admission of most of the Crown evidence is contested, there is also another more basic ground of appeal. The appellant put it first in oral argument to us. The trial judge says that it was argued at length before him. What is it? Assuming for the sake of argument that all the Crown evidence is admissible, has the Crown proved the offence beyond a reasonable doubt? If the Court of Appeal thinks not, does the standard of appellate review allow it to upset the conviction?

Legal Issues about Proving Possession 5 That proof has two aspects: law and facts. 6 If the trial judge applied the wrong legal test, then the Court of Ap- peal can interfere with his decision (unless the fairly narrow proviso in s 686(1)(b)(iii) of the Criminal Code applies). 7 The trial judge cited reported cases to support his view of the applicable law. The subject is how to use circumstantial evidence, which is about all that the Crown had in this case. Some of the cases cited by the trial judge are merely persuasive authority, and some are binding, being from the Supreme Court of Canada and this Court. 52 CRIMINAL REPORTS 27 C.R. (7th)

8 But the case law may not be readily consistent, given more recent cases of high authority which the appellant cites. 9 One possible sub-issue might be whether one should be looking for reasonable inferences, or whether merely rational inferences are of use. The case law may conflict on that topic. However, counsel here did not advocate any difference between the two, and any such distinction makes no difference here, so we need not say more about which is the better formulation. 10 Instead the big legal dispute on this aspect of this appeal is this. Can the accused rely upon an inference or hypothesis leading to an innocent explanation for the evidence, if it is not based on any evidence, or not based upon proven facts? For conviction, we require that the circumstantial evidence be incompatible with any reasonable state of facts which would not involve the accused’s commission of the crime. Must that innocent state of facts be based upon the evidence? Or can it be based upon lack of evidence? 11 The trial judge and the Crown say that such an innocent possibility must flow from some evidence. 12 But the defence disagrees and says that such an innocent possibility need not come from evidence, and can be the product of absence of evidence. The defence cites several cases, including R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, 388 N.R. 334, 307 D.L.R. (4th) 577 (S.C.C.); R. v. Yebes, [1987] 2 S.C.R. 168, 78 N.R. 351, 43 D.L.R. (4th) 424 (S.C.C.) (para 26), R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, 383 N.R. 279, 301 D.L.R. (4th) 257 (S.C.C.); and R. v. Pryce, 2014 BCCA 370, 361 B.C.A.C. 301 (B.C. C.A.). 13 A closely-related question is whether the rule is the same for the Crown and the defence. Are both barred from relying on inferences or hypotheses not founded in evidence led at trial? The trial judge said yes. 14 We have considerable concerns about applying the same standard to the two sides in the prosecution. The Crown has the onus of proof on virtually all topics in a criminal case, and the defence need not prove anything. More seriously, any reasonable doubt works in favor of the defence, not the Crown. 15 Of course a doubt has effect only if it is a reasonable doubt. It must have a certain degree of likelihood, and obviously far less than 50% suf- fices; but it cannot be a remote very unlikely possibility. A number of decided cases would negative mere “speculation” as a possible ground R. v. Villaroman The Court 53

for a reasonable doubt or for an innocent hypothesis. In many of those cases, that probably refers at least in part to the small chance that the event postulated occurred, such as a stranger suddenly rushing in and out of the crime scene during the minute or two that no one was watching. 16 Often a trial will have no evidence about ordinary human behavior, habits, and customs, and expert evidence on such topics is not common. For example, we all know that a wallet left unwatched in a prominent public and busy place for an hour or so is likely to be taken or stripped by a casual passerby. The same thing is most unlikely to happen in one hour in a private place known to and frequented by few people, whether or not any doors or gates are locked. 17 In our view, cases rejecting “conjecture” but approving “inferences” have in mind more than mere presence or absence of some explicit evidence. They likely also assume some degree of likelihood or unlikeli- hood of the innocent explanation or hypothesis. 18 A closely-related or overlapping topic is whether proving the accused’s motive and opportunity suffice to prove his guilt. It surely depends on whether anyone else also had both motive and opportunity. Consider a simple example. Almost anyone has a motive to steal a wallet of money. If at the relevant time 10 people had ready access to the room where a wallet was left and disappeared, without more evidence, how can the Crown and trial judge single out one person rather than the other nine, to prosecute and convict? 19 We have trouble seeing that circumstantial evidence could prove guilt where it leaves a reasonable (not remote) possibility that the event occurred in a way not involving the accused. A jury cannot act on an unreasonable inference. It is not necessary that there be actual evidence of that innocent possibility; the onus is on the Crown to disprove it. The well- known Lifchus test confirms that. The trier of fact must find no evidence, and no gap in the evidence, which raises a reasonable doubt. Such gaps include a gap in the evidential support for an inference needed to prove an element of the offence. That is, of course, a factual question for the trier of fact. 20 Based on that view of the law, we come to the respectful view that the trial judge misstated the current law on this topic, and in effect put a burden on the accused to prove something. We have some sympathy for his situation, because (as noted) some case law may conflict, and seems to have changed in very recent years. 54 CRIMINAL REPORTS 27 C.R. (7th)

21 If we are correct in this view of the law, then there must at least be a new trial here. One cannot say that the result would necessarily have been the same had the correct test been used.

Factual Issues About Possession 22 But we will not leave the matter there. We now turn to the other related issue, the factual one. Was the verdict of guilt here unreasonable (assuming that all the evidence was admissible)? After all, if the Crown does not make out a case fit for a jury, a second trial is not to be ordered simply to give the Crown a second chance. 23 The computer in question was a common model of a very portable laptop. And it was not password-protected. Those facts are clear and un- disputed in the evidence. 24 So strictly speaking, doubt as to identity of the offender here does not arise solely from lack of evidence. It also arises from those two undis- puted pieces of evidence. 25 Therefore, anyone who could get temporary physical access to the laptop computer could work the laptop, and could access or transmit the child pornography on it. Much of the population knows how to work a laptop and its common software. And anyone with such recurring physical access could have put all the child pornography on the computer. 26 We have absolutely no evidence about where the computer was kept or used. We are not even told how many people live with the accused. At least two do, and it is admitted that the two named did not put the images on the computer. But we do not know if any other people ever live in the same residence, still less frequent it. And we do not know if either of the two co-habitants admitted others to the residence, or gave them access to wherever the laptop computer could be found. 27 There is no evidence at all about whether this computer stayed regularly in one place or moved about. If it stayed at home during the day, who else had access? Did a family member let friends use the computer? Did non-residents hang around the area where the laptop was? 28 If this laptop did not stay at home during the day, did it go to work, e.g. with the accused? Or with a family member? Did it go during the day to a school, college, or university? Was it kept locked up or hidden wherever it usually was? And wherever it was each day, how many other people had easy access to it there? We do not know. R. v. Villaroman The Court 55

29 It is true that only one user name is on the relevant accounts in the computer, but there was nothing stopping other users from using that name. Why would anyone bother to use another user name? This name is free and easy to use. 30 If there had been evidence that only the three people lived in the residence, and that the computer never left the home, we might have had less concern. Had there been that evidence and also further evidence that other persons did not come and use the computer, nor use the room where it was located, probably we would not interfere with the conviction. Other possibilities would then be too remote. But there is no such evidence. 31 For all that we or the trial judge know, the computer may have sat much of each day in a location or locations frequented by many friends, coworkers, or fellow students. That is not unusual; laptops are made and widely sold to be readily and frequently moved about and used almost anywhere. 32 The number of separate items of pornography which the police found on this laptop was 36 (35 movies and one still photo). About half were incomplete, which could be significant. The relevant user account had been open for about 2-1/2 years, so those 36 items constitute an average download of a little over one item of pornography per month. That is not very frequent, and that rate does not itself make actions by another user impossible, nor even highly unlikely. 33 The computer was used almost daily, but not for pornography, so far as the police discovered and the evidence showed. 34 The pornography was not shown to be accompanied by any email or similar communication, nor was the source of the pornography in evidence. 35 There was no evidence at all about whether an ordinary user of this computer would be bound to notice this child pornography in the music folder, nor argument about the legal position if he did notice. 36 Furthermore, someone who put so much child pornography on his own computer in his own name would be incautious. Someone who did that, and then took it to a computer repair shop (giving his own name and address) for diagnosis and servicing, would be very careless. People sometimes do such rash things, and we do not mention that as a ground directly to upset the conviction. But it is one piece of positive evidence 56 CRIMINAL REPORTS 27 C.R. (7th)

which helps one to doubt whether the owner of the computer (the appellant) really did know that there was child pornography on the computer. 37 It is elementary that the test for possession has vital subjective elements: see R. v. Tyrell, 2014 ONCA 617, 325 O.A.C. 150, 123 O.R. (3d) 109 (Ont. C.A.). 38 Whether or not the trial judge used the right legal test for circumstantial proof, we apply the usual Yebes/Biniaris test for reasonableness of conviction. We conclude that on this skimpy evidence, a properly-instructed jury could not reasonably and judicially find that the appellant put the child pornography on the computer or knew it was there. There being no ground to put the case to a jury, we reverse the conviction and enter an acquittal.

Charter Issues 39 That makes the issues about the type of warrant obtained by the police, and the admissibility of the evidence gained thereby, academic. We will not discuss them. Appeal allowed. R. v. Villaroman: A Call for Simplicity 57

R. v. Villaroman: A Call for Simplicity Elliot Herzig*

The unhappy relationship between circumstantial evidence and the Crown’s burden of proof is again before the Supreme Court in R. v. Vil- laroman.1 Mr. Villaroman was convicted for possession of child pornography by the Alberta Court of Queen’s Bench, though the evidence against him was entirely circumstantial. The Court of Appeal quashed the conviction, however, and entered an acquittal. The unanimous Court found the lower Court’s decision unreasonable. While there was child pornography on Mr. Villaroman’s laptop, someone else could have downloaded it without him knowing.2 This explanation becomes plausi- ble, the Court reasoned, considering the Crown submitted no evidence about where the laptop was kept and little evidence about who used it.3 A key issue on appeal to the Supreme Court is how to meet the burden of proof in cases based on circumstantial evidence. The current rule enunci- ated in R. v. Griffin holds that in order to meet the burden in these cases, the trier of fact “must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn . . . is that the accused is guilty.”4 The Crown argues that the Court of Appeal applied Griffin incorrectly. There was no evidence that anyone other than the accused used or had access to the accused’s laptop.5 So the inference that someone else may have downloaded the pornography is not rational, but speculative.6

* Third year J.D. student, Queen’s Faculty of Law 1 2013 ABQB 279, 83 Alta. L.R. (5th) 297 (Alta. Q.B.), rev’d 2015 ABCA 104 (C.A.), leave to appeal granted 2015 CarswellAlta 1620 (S.C.C.). 2 R. v. Villaroman, 2015 ABCA 104, 13 Alta. L.R. (6th) 369 (Alta. C.A.) [reported above at p. 49]. 3 Ibid at para 26–29, 31. 4 2009 SCC 28, [2009] 2 S.C.R. 42, 67 C.R. (6th) 1 (S.C.C.) at para 33 [Griffin]. 5 Supra note 2 (Factum of the Appellant at para 1 [FOA]). 6 Ibid at para 35. 58 CRIMINAL REPORTS 27 C.R. (7th)

In this comment, I argue that the Court should use Villaroman as an opportunity to reject the the formula stated in Griffin because it is unnecessary and confusing. Courts should not ask the trier of fact to be satisfied beyond a reasonable doubt that guilt is the only rational inference that can be drawn. It should only refer to the standard burden of proof — proof of guilt beyond a reasonable doubt — as interpreted in R. v. Lifchus.7 This is the safer and simpler option. Of course, in difficult circumstantial cases, judges should have the discretion to explain the burden further. But the standard formula will typically be enough.

Direct and Circumstantial Evidence Direct evidence is evidence that, if believed, proves the conclusion the evidence is intended to prove.8 An example of direct evidence is a videotape of the accused committing the crime. If we believe the videotape is authentic, we must conclude that the accused committed the crime. To convict on direct evidence, then, the trier of fact ultimately faces one question: Is the evidence reliable? If the trier of fact is satisfied beyond a reasonable doubt that the evidence is reliable, she must convict. Circumstantial evidence, on the other hand, is evidence that, if believed, supports the conclusion the evidence is intended to prove. An example of circumstantial evidence is the accused’s fingerprints marking the weapon used to commit the crime. If the evidence is reliable, it becomes more likely that the accused committed the crime; however, it is not yet proven. Circumstantial evidence therefore presents the trier of fact with two questions: Is the evidence reliable? If so, how likely is it that the accused committed the crime based on that evidence? Consider our example above. The trier of fact must first decide whether the accused’s fingerprints truly marked the crime weapon. Second, she must decide how likely it is that the accused committed the crime based on that evidence. If the trier of fact thinks that it is very likely, likely beyond a reasonable doubt, she must convict.

7 [1997] 3 S.C.R. 320, 9 C.R. (5th) 1 (S.C.C.). 8 See generally Ron Delisle et al., Evidence: Principles and Problems, 11th ed (Toronto: Carswell 2015) 75–96 (for further explanation of direct and circumstantial evidence). R. v. Villaroman: A Call for Simplicity 59

History of the Treatment of Circumstantial Evidence Canadian courts have traditionally treated cases relying on circumstantial evidence differently than cases relying on direct evidence. This differential treatment can be traced to Hodge’s Case, an English decision from 1838.9 In Hodge’s Case, the evidence linking the accused to a murder was entirely circumstantial. Because the evidence was entirely circumstantial, Alderson B charged the jury that in order to convict, they must be satisfied “that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person”.10 Cana- dian courts later adopted Alderson B’s charge as mandatory. In R. v. Comba, for example, the Supreme Court declared it a “long settled rule of the common law”.11 Ironically, English courts do not consider Hodge’s Case to have established a “long settled rule”. In McGreevy v. Director of Public Prosecu- tions, The Law Lords pointed out that Hodge’s Case is rarely cited in England, and never as a rule.12 They further found a Hodge-like charge unnecessary because the normal charge, proof of guilt beyond a reasonable doubt, conveys the same meaning. From a normal charge, a jury can infer that if the facts are consistent with both guilt and innocence, they must acquit.13 Last, the Law Lords reasoned that there are practical problems with requiring a Hodge-like charge. The judge often cannot know whether a case rests entirely on circumstantial evidence since she does not know which evidence the jury accepts.14 Further, if some issues rest on circumstantial evidence and others do not, the court risks confusing the jury with multiple charges.15 For these reasons, the Law Lords concluded that Hodge’s Case did not establish a new rule. It is instead an example of how to explain the traditional charge.16

9 (1838), 168 E.R. 1136, 2 Lewin 227 (Eng. C.C.R.). 10 Ibid. 11 [1938] S.C.R. 396, [1938] 3 D.L.R. 719 (S.C.C.) at para 4. 12 [1973] 1 All E.R. 503, [1973] 1 W.L.R. 276 (U.K. H.L.) at 8 [W.L.R.]. 13 Ibid. 14 Ibid p. 8-9. 15 Ibid p. 8-9. 16 Ibid p. 9. 60 CRIMINAL REPORTS 27 C.R. (7th)

Across the Atlantic, the Supreme Court of the United States rejected the rule from Hodge’s Case, holding that a Hodge-like charge is “confusing and incorrect”.17 The Court in Holland v. United States pointed out that reasoning from circumstantial evidence is ultimately the same as reasoning from direct evidence. In both, a jury must decide whether the evidence is accurate and leads to a guilty inference.18 In both, a jury makes this decision using its experience with people and events.19 It is true that circumstantial evidence sometimes suggests an incorrect result, but direct evidence does too.20 As long as juries are convinced of guilt beyond a reasonable doubt, no more should be asked of them. Since the 1960s, the Supreme Court of Canada has itself stepped back from Hodge’s Case. In R. v. Mitchell, the Court clarified that Hodge’s Case does not change the traditional standard of proof, but instead provides “a formula to assist in applying” it.21 The Court also limited the application of Hodge’s Case to the issue of actus reus. The Court reasoned that the formula from Hodge’s Case was only intended to apply to actus reus since Hodge’s Case was itself limited to that element.22 Fur- ther, the Court warned that if a Hodge-like charge was used for mens rea, it would raise the burden of proof for that element to a nearly impossible standard.23 This argument is somewhat confusing.24 How could Hodge’s Case change the burden of proof for mens rea but not actus reas? In any event, Mitchell ultimately limited Hodge’s Case in two ways: by interpreting it as an aid to explain the typical standard of proof, rather than a standard on its own, and by limiting it to actus reus.

17 Holland v. United States, 75 S.Ct. 127 (U.S. Sup. Ct., 1954) at paras 22–24. 18 Ibid. 19 Ibid. 20 Ibid. 21 [1964] S.C.R. 471, 43 C.R. 391, 46 D.L.R. (2d) 384 (S.C.C.) at para 48. 22 Ibid. 23 Ibid. 24 See generally EE Smith, “Hodge’s Case and criminal Intent” (1975) 17:3 Crim LQ 273 and Eric Scott, “Hodge’s Case: A Reconsideration” (1965) 8:1 Crim LQ 17 [Scott] (For criticism of the reasoning in R. v. Mitchell). R. v. Villaroman: A Call for Simplicity 61

The Court further distanced itself from Hodge’s Case in 1977 in R. v. Cooper.25 First, the Court reaffirmed Mitchell, holding that the charge should only apply to actus reas.26 Second, the exact words from Hodge’s Case need not be used, so long as the jury understands its message: “It is enough if it is made plain to the members of the jury that before basing a verdict of guilty on circumstantial evidence they must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts.”27 Justice Laskin dissented. He noted that Hodge’s Case never created a rule in England, and he advised that the traditional formula was “the safest as well as the simplest way” for a jury to appreciate the burden of proof.28 If the formula from Hodge’s Case should be used, Laskin J reasoned, it should be used at the discretion of the trial court, not by fiat from the Supreme Court. It should also apply to mens rea.29 Mens rea is no less a question of fact than actus reus so it would be inconsistent and confusing to have two different charges.30 Cooper gave rise to uncertainty about whether trial judges must give a special charge in circumstantial cases. In R. v. Charemski, the Supreme Court noted that a trial judge erred by not uttering a Hodge-like charge.31 In R. v. Fleet, however, the Ontario Court of Appeal held that a special charge need not be used “so long as the jury is clearly made aware” of the typical standard of proof.32 Similarly, in R. v. Tombran the Ontario Court of Appeal urged trial judges not to use a Hodge-like charge, warn- ing that it may devolve into an abstract lecture on the nature of circumstantial evidence or on the steps of logic taken to assess it.33

25 [1978] 1 S.C.R. 860, 74 D.L.R. (3d) 731 (S.C.C.) [Cooper]. 26 Ibid at para 36. 27 Ibid. 28 Ibid at para 47. 29 Ibid at para 46. 30 Ibid. 31 [1998] 1 S.C.R. 679, 15 C.R. (5th) 1, 157 D.L.R. (4th) 603 (S.C.C.) at para 13. 32 (1997), 36 O.R. (3d) 542, 104 O.A.C. 394 (Ont. C.A.) at para 20. 33 (2000), 47 O.R. (3d) 182, 31 C.R. (5th) 349, 129 O.A.C. 51 (Ont. C.A.) at para 29. 62 CRIMINAL REPORTS 27 C.R. (7th)

The Supreme Court tried to remedy this confusion in R. v. Griffin. But the Court instead repeated the same mistake it made in Cooper, rejecting the precise words of Hodge’s Case while retaining its logic. The Court in Griffin began by asserting that there is no “special instruction” for circumstantial cases.34 It then held that the instruction does have an “essential component”: to “instill” in the jury that guilt is “the only rational inference that can be drawn”.35 This component, the Court noted, need not be relayed in any precise words.36 By outlining an “essential component”, the Court strongly suggests that there is a mandatory instruction. Though the Court claims the instruction is not “special”, this assertion seems empty since the instruction is unique to circumstantial cases. Jurists have at least interpreted Griffin to require a special instruction. For example, courts still assert that judges must use one.37 Jury instruction manuals still claim the law requires one.38 And academics still question whether we need one.39 In spite of Griffin, then — or indeed because of it — Hodge’s Case lingers in Cana- dian jurisprudence.

34 Griffin, supra note 4 at para 33. 35 Ibid. 36 Ibid. 37 R. v. Yeo, 2016 PECA 5, [2016] P.E.I.J. No. 16 (P.E.I. C.A.) at para 16; R. c. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162, 94 C.R. (6th) 1 (S.C.C.) at para 38. 38 National Judicial Institute, Model Jury Instructions, Ottawa, Ont: Canadian Judicial Council, 2014, s 10.2, online: https://www.nji-inm.ca/index.cfm/publi- cations/model-jury-instructions/final-instructions/types-of-evidence/direct-and- circumstantial-evidence/; Gerry Ferguson et al, Canadian Criminal Jury Instruc- tions (Vancouver: Continuing Legal Education of British Columbia, 2014) at s 4.15; David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed, (To- ronto: Thomson Carswell, 2015) at 277. 39 See generally Don Stuart, “Sunshine: The Need for further Clarity on Jury Directions in Circumstantial Evidence Cases” (2013), 1 C.R. (6th) 346 and Lisa Dufraimont, “R v Griffin and the Legacy of Hodge’s Case” (2009), 67 C.R. (6th) 74 [Dufraimont]. R. v. Villaroman: A Call for Simplicity 63

Return to Beyond a Reasonable Doubt The Court in Villaroman should unequivocally reject the formula from Hodge’s Case. It is unnecessary and confusing. It is unnecessary because the traditional charge already requires the jury to rule out other possible inferences. It is precisely by finding that the evidence is inconsistent with other inferences that a jury becomes satisfied of guilt beyond a reasonable doubt. This is true for both direct and circumstantial evidence. Con- sider the following example of direct evidence: a witness testifies that she saw the accused stab the victim. Before the jury can convict, it must first consider whether there are other explanations for why the witness is testifying. Perhaps she is lying or mistaken. Now consider an example of circumstantial evidence: the accused’s fingerprints mark the crime weapon. Again, the jury must consider innocent explanations. Perhaps the accused touched the weapon for a different reason than to commit the crime. Maybe the accused didn’t touch the weapon at all, but someone made it seem that way. Under the traditional charge, the jury must always find that the evidence is inconsistent with other inferences before concluding that the accused is guilty. The formula from Hodge’s Case is therefore superfluous. It may have been necessary in its own time, an era when the traditional charge did not exist.40 Today, however, it is not. Proponents of a Hodge-like charge accept that the standard charge requires the same steps of reasoning.41 But they argue that a Hodge-like charge is still necessary because circumstantial evidence leaves more room for innocent explanation than direct evidence.42 Recall that direct evidence is evidence that, if reliable, proves the conclusion the evidence is intended to prove. The only source of innocent explanation, then, is that the evidence is unreliable. Circumstantial evidence, on the other hand, is evidence that, if reliable, supports the conclusion the evidence is intended to prove. Therefore, even if the evidence is reliable, it still may be consistent with other innocent explanations. This added source of uncertainty could lead juries to evaluate the evidence incorrectly.43 A

40 Arthur M Gans, “Hodge’s Case Revisited” (1973) 15:2 Crim LQ 127 at 130. 41 Benjamin L Berger, “The Rule in Hodge’s Case: Rumours of its Death are Greatly Exaggerated” (2005) 84 Can Bar Rev 47 at 61. 42 Ibid and supra note 2 (Factum of the Intervenor Criminal Lawyers’ Associa- tion (Ontario) at paras 18-19). 43 Ibid. 64 CRIMINAL REPORTS 27 C.R. (7th)

Hodge-like charge would alert juries to this danger and help them assess the evidence correctly.44 It is true that an instruction on circumstantial evidence can be helpful in some cases. But in others it can be confusing and counterproductive. For example, pointing out that a case relies on circumstantial evidence could prejudice the jury to think that the case is weak.45 Alternatively, emphasizing that guilt must be the only rational inference to be drawn could effectively reverse the burden of proof by putting an onus on the accused to find alternative explanations.46 Finally, an instruction on circumstantial evidence could, as Tombran warned, devolve into a confusing, abstract lecture on the nature of circumstantial evidence.47 Thus, while a special charge for circumstantial evidence can be helpful in some cases, it will confuse juries in others. The Court should therefore give judges discretion about when to use a Hodge-like charge. Last, the term “rational” used in Hodge’s Case may import a higher standard of proof than “reasonable doubt”. For an inference may be rational without being particularly reasonable.48 Villaroman is a good example. Recall that in Villaroman, the Court of Appeal acquitted the accused for possession of child pornography. It inferred that someone else could have downloaded the pornography onto the accused’s laptop. However, the Court had little on which to base this inference. There was no evidence that someone else used or had access to the accused’s laptop, and the accused did not testify. Thus, while it may be rational to infer that someone else downloaded the pornography, it may also be unreasonable. In this way Hodge’s Case could import a higher standard of proof — a standard based on the strict logic of rationality, rather than the common sense of reasonableness.49 At the very least, the term “rational inference” may be so interpreted. The Supreme Court in Villaroman has a unique opportunity to clarify the law. In its decision, the Court should unequivocally reject a mandatory

44 Ibid. 45 Dufraimont, supra note 39 at 75. 46 Ibid. 47 Ibid. 48 Scott, supra note 24 at 25. 49 Dufraimont, supra note 39 at 75. R. v. Villaroman: A Call for Simplicity 65

Hodge-like charge. It is unnecessary and confusing. The Court should instead refocus on the typical standard of proof, proof of guilt beyond a reasonable doubt. This is the safest and simplest way to charge juries. Of course, in difficult circumstantial cases, judges should have the discretion to explain the charge further. But the standard charge will typically be enough. Jury members have been drawing inferences from circumstantial evidence since childhood without knowing the abstract process behind it. We should not underestimate juries. The common sense of twelve average citizens is a great advantage of the criminal process. A great disadvantage, needlessly conceptual definitions. Justice Moldaver bemoaned the proliferation of long, complex jury charges in R. v. Rodgerson.50 He described the role that Crown, Defence, and trial judges must play to make charges brief and straightforward.51 This paper calls on the Supreme Court to lead by example. Opt for simplicity. Trust our juries. Do not overcomplicate the charge.

50 2015 SCC 38, [2015] 2 S.C.R. 760, 21 C.R. (7th) 1 (S.C.C.) at paras 40-41. 51 Ibid at paras 44–54. 66 CRIMINAL REPORTS 27 C.R. (7th)

[Indexed as: R. v. F. (T.)] Regina v. T.F. and T.A.F. British Columbia Provincial Court Docket: Salmon Arm 23125-1 2016 BCPC 6 E.F. De Walle Prov. J. Heard: November 3, 2015 Judgment: January 19, 2016 Defences –––– Lawful authority — Physical discipline of children –––– Sec- tion 43 not providing defence to parents charged with assault with weapon — Father striking 14-year-old daughter on buttocks with plastic mini hockey stick and mother using skipping rope as punishment for her sending nude photographs of herself to young man — Not for purpose of correction or reasonable in circumstances. Defences –––– Consent — Informed –––– Consent of 14-year-old daughter to be spanked by parents as discipline invalid as not informed. The father of a 14-year-old daughter discovered that she had used an iPad to send nude pictures of herself to a young man. He confronted her about the nude photos as they entered the garage of their home. He told her that she needed to respect herself and not throw herself at boys. They discussed what form of punishment was appropriate. The daughter later recalled she was given the option of a long grounding or to be spanked. She opted for the spanking. She understood her parent’s beliefs about discipline were based on the Bible which they believed advocated the use of a rod to spank rather than hands, as hands are to be used as instruments of love. The accused struck his daughter two or three time on the buttocks over her pyjama pants. Shortly after the mother arrived and the father told her about the nude pictures. She hit her daughter two or three times on her buttocks with a skipping rope. The parents were charged under s. 267 of the Criminal Code with assault with a weapon when bruises to their daughter were discovered at school. Held: The accused was convicted. The defence of consent was not available. The choice of spanking was not a fully informed consent with an appreciation of all the consequences. The more serious the assault the more difficult it should be to establish consent. Here the amount of force, the use of weapons and the subsequent injuries were all aggravating circumstances. R. v. F. (T.) 67

The defence of reasonable force by a parent under s. 43 of the Criminal Code did not provide a defence. The Supreme Court has held that corporal punishment of teenagers, particularly the use of objects or blows or slaps to the head is prohibited because it does not have corrective value. Here the force was applied for punishment not correction. The parents did not seek out expert help and their actions were degrading. The punishment using an object was not reasonable in the circumstances. The injuries were not transitory or trifling. The spanking amounted to excessive corporal punishment.

Comment

Section 43 of the Criminal Code has long declared that: Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction towards a pupil or child, as the case may be, which is under his care, if the force does not exceed what is reasonable under the circumstances. In the Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General), (2004), 16 C.R. (6th) 203, [2004] 1 S.C.R. 76 (S.C.C.), the majority of the Supreme Court decided that s. 43 did not contravene the established s. 7 Charter standard that a law cannot be too vague in the sense that there is sufficient room for legal debate. The majority reached this inclusion by drastically reading down the section to comply with expert testimony tendered in the court below as to the efficacy and harms of corporal punishment: Generally, s. 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. On the basis of current expert consensus, it does not apply to corporal punishment of children under two or teenagers. Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. Coupled with the requirement that the conduct be corrective, which rules out conduct stemming from the caregiver’s frustration, loss of temper or abusive personality, a consistent picture emerges of the area covered by s. 43. It is wrong for law enforcement officers or judges to apply their own subjective views of what is “reasonable under the circumstances”; the test is objective. The question must be considered in context and in light of all the circumstances of the case. The gravity of the precipitating event is not relevant. [para. 40] Prime Minister Justin Trudeau has promised to enact all the recommendations of the Truth and Reconciliation Commission (2015). The Commission’s 6th recom- 68 CRIMINAL REPORTS 27 C.R. (7th)

mendation calls for a repeal of s. 43 stating that “Corporal punishment is a relic of a discredited past and has no place in Canadian schools or homes’. The decision in R. v. F.(T.) points to the need for repeal. The Canadian Founda- tion, rulings are complex and not well understood. Justice de Walle finds that the accused parents who spanked their 14-year-old teenage daughter could not find justification under s. 43 on the Supreme Court’s criteria. An easier course to conviction would have been to simply rule that the Supreme Court expressly decides (see para. 40 above) that s. 43 can never justify any force against teenagers. De Walle J. breaks important new ground in determining that the girl’s choice to be spanked rather than grounded was not valid since it was not informed. Presumably this was because she was not informed that the parents had no right to resort to corporal punishment. An additional argument against vali- dating consent one common to claims often made by abusers- is that there exists a huge power differential between adult and child, especially between parent and child. One of the problems with the Supreme Court’s approach, as pointed out by Jus- tice Arbour in dissent, is that unlike normal defences to assault such as self- defence, the majority allows no consideration of proportionality given that the gravity of the precipitating event is held to be irrelevant. It doesn’t matter whether the child spat or burnt down the barn. The assaulter also cannot be acting out of frustration or anger. So we are left with justifying coolly premeditated minor physical correction without reference to context. I suspect that few trial judges would be comfortable making that determination. Several groups of child care advocates have called for repeal. See for example the Joint Statement on Physical Punishment of Children and Youth (2014 (en- dorsed to date by 562 Canadian professional organizations) and the Global Initi- ative to End All Corporal Punishment of Children (2014). Many now point to the reality that 49 countries have now prohibited all corporal punishment against children, 51 other States are committed to doing so and that expert knowledge has evolved since 2004 with overwhelming evidence that any form of physical punishment, including spanking of children of any age is likely to result in immediate or future physical or mental harm to that child or others. See, for example, Kemme, Hanslmaier and Pfeiffer, “Experience of Parental Corporal Punish- ment in Childhood and Adolescence and Its Effect on Punitiveness” (2014) 29 J. Fam. Viol. 129-142 and Gershoff and Grogan-Kaylor “Spanking and Child Out- comes: Old Controversies and New Meta-Analyses” (2016) J. Fam Psychol. ( Apr 7: epublication ahead of print). Some, however, fear that repeal of s. 43 would result in the criminal sanction being disproportionately applied to the most disadvantaged parents. Some teachers groups are concerned that they would have no power to, for example, break up schoolyard fights. R. v. F. (T.) 69

If there was a straight repeal of s. 43 defences available to parents, caregivers and teachers charged with assault of child would be those available to anyone charged with assault, including the defences of self-defence, duress and neces- sity, and possibly the emerging doctrine of de minimis non curat lex: see R. v. Smale, reported below at p. 83. The de minimis power has long been a vehicle for restraint of U.S. Criminal Codes based on the Model Penal Code of 1961. The power of physical restraint would be limited to that presently authorised by s. 27, which allows physical force where reasonably necessary to prevent crime or harm to others and which involves an assessment of what the child actually did. Don Stuart Faculty of Law, Queen’s University Cases considered by E.F. De Walle Prov. J.: Canadian Foundation for Children, Youth & the Law v. Canada (Attorney Gen- eral) (2004), 2004 SCC 4, 2004 CarswellOnt 252, 2004 CarswellOnt 253, 16 C.R. (6th) 203, 234 D.L.R. (4th) 257, 180 C.C.C. (3d) 353, 46 R.F.L. (5th) 1, 315 N.R. 201, [2004] S.C.J. No. 6, 183 O.A.C. 1, (sub nom. Canadian Foundation for Children v. Canada) [2004] 1 S.C.R. 76, 70 O.R. (3d) 94 (note), 115 C.R.R. (2d) 88, REJB 2004-53164 (S.C.C.) — followed R. v. Jobidon (1991), 7 C.R. (4th) 233, 128 N.R. 321, [1991] 2 S.C.R. 714, 66 C.C.C. (3d) 454, 49 O.A.C. 83, 1991 CarswellOnt 110, 1991 CarswellOnt 1023, EYB 1991-67625, [1991] S.C.J. No. 65 (S.C.C.) — considered R. v. Stanley (1977), 36 C.C.C. (2d) 216, [1977] 4 W.W.R. 578, 1977 Car- swellBC 381 (B.C. C.A.) — considered R. v. Swan (2008), 2008 CarswellOnt 1384, 58 C.R. (6th) 126, [2008] O.J. No. 975 (Ont. S.C.J.) — distinguished 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 s. 7 — considered Criminal Code, R.S.C. 1985, c. C-46 s. 34 — considered s. 43 — considered s. 265 — considered s. 265(3)(d) — considered s. 267 — considered s. 267(a) — considered

TRIAL of accused parents on charges of committing asssault on complainant daughter with weapon. 70 CRIMINAL REPORTS 27 C.R. (7th)

Mariane Armstrong, for Crown Ian McTavish, for Defendant

E.F. De Walle Prov. J.: Introduction 1 The accused are charged with one count on Information 23125. 2 Count 1 is that on or about the 14th day of February, 2015, at or near Salmon Arm, in the Province of British Columbia, did in committing an assault upon M.F., use a weapon or an imitation weapon, to wit: a mini hockey stick and a skipping rope, contrary to Section 267(a) of the Crim- inal Code. 3 The accused both entered a plea of not guilty to the charge. 4 The accused are the parents of the complainant (the “daughter”). At the relevant time, the complainant was 14 years of age. On February 14, 2015 the accused T.F., (the “father”), struck his daughter on the buttocks with a plastic, mini hockey stick. On the same day the accused T.A.F., (the “mother”), also struck the daughter on her buttocks, using a skipping rope. The parents applied force to the complainant as a form of discipline. 5 The issues in this case are as follows: 1. Did the child consent to the application of force to her body? 2. In the circumstances of this case does s. 34 of the Criminal Code provide a defence to the parents?

Summary of the Evidence 6 The Crown and Defence in this case prepared and filed “Admissions of Fact” that are marked as Exhibit 1. 7 The Admissions form part of the evidence in the trial. I will not recite the Admissions in full but will highlight the relevant portions. 8 On February 14, 2015, the parents were living at their home in Salmon Arm, British Columbia. Three of their four children lived with the parents in their home. The complainant was 14 years old and was born on [omitted for publication]. The two younger siblings were ages 13 and 11 years respectively. The fourth child, an older sibling, was living in Alberta. 9 Approximately a week before February 14, 2015 the father took away the complainant’s cell phone because she had renewed her acquaintance R. v. F. (T.) E.F. De Walle Prov. J. 71

with a young man, (“B.N.”). The daughter had been fond of B.N. but he broke off ties shortly after Christmas. The complainant was also required to give her parents her cell phone password that she willingly provided. 10 Although her phone had been taken the daughter was able to continue communicating with another friend using her iPad. As a result, the father also demanded that the daughter hand over her iPad, which she did. On reviewing the text messages on the iPad the father discovered messages that referred to his daughter sending nude photographs of herself to “B.N.”. The daughter sent the nude pictures through a site called “Snapchat”. The daughter believed that the photos only lasted a few seconds after transmission using the “Snapchat” site. The parents never actually saw the nude photos that were sent by their daughter in Decem- ber 2014. 11 On February 14, 2015 the daughter was planning to attend a hockey game in Kamloops with her father. She was in the bathroom when her father confronted her about the nude photos. The father asked her why she sent the photos and said that she had not been raised to be like that. 12 The two continued to speak as they entered the garage of the home. The accused father told his daughter that she needed to respect herself and not to throw herself at boys. 13 Once in the garage the daughter and her father discussed what form of punishment would be appropriate. The daughter understood that she would lose her electronics for a very long time; she would not be permitted to have guests over or go anywhere outside the house after school, and expected that she might be spanked. The daughter subsequently recalled that her father offered her two options: to be grounded for a really long time or to be spanked. She opted for the spanking because she did not want to be grounded as that would affect her sports activities. 14 The child understood that her parent’s beliefs about discipline came from their adherence to the Bible which they believe advocates the use of the “rod” to spank, rather than hands, as hands are to be used as instruments of love. 15 The accused father picked up a plastic mini hockey stick (approximately 18 inches in length) and struck his daughter two or three times on the buttocks over top of her pyjama pants. The blows hurt. The accused father told his daughter as he struck her that he was doing this because he loved her and not out of hate. He wanted her to understand what she had done. 72 CRIMINAL REPORTS 27 C.R. (7th)

16 Shortly after the father administered the spanking to his daughter the mother arrived at the home. The father told his wife about the nude photographs that the daughter had sent to a friend. The mother became upset and picked up a skipping rope that was in the garage. She hit her daughter two or three times on her buttocks with the skipping rope. The mother said she was doing this because she loved her daughter. 17 On February 16, 2015 the child was at school when she told two of her girlfriends about the punishment she had received from her parents. She also showed her two friends her buttocks. One of the friends noticed that the child’s buttocks were red and swollen and covered in bruises which were purple and green. The other friend saw red and purple marks on the child’s buttocks. 18 The school principal was informed of the incident and contacted the Ministry of Children and Families. The Ministry subsequently contacted the RCMP. 19 RCMP Constable Gill went to the home of the parents. He advised the father about the allegations. The father became upset and said that he spanked his daughter as punishment for things she should not be doing. 20 Dr. Heunis, a medical doctor in Salmon Arm, examined the daughter on February 23, 2015. He noted that the daughter’s buttocks showed healed linear bruises to her right buttock. 21 The Crown also filed, as part of Exhibit 1, a series of photographs showing some markings, described as linear bruises, which are visible on the child’s right buttock. The photographs were taken by an RCMP officer. 22 The Crown closed its case on filing the Admissions of Fact.

Testimony of the Accused Father 23 The accused father elected to testify in his own defence. 24 He is 45 years old and married to the mother. They have four children. He described their family as a Christian family. The family attends church regularly. He is employed as an electrician and has no criminal record. 25 He testified that the hand is used for compassion and love, not for discipline. As a result of his belief he does not use his hand only when applying corporal punishment. In other words, the father believes that an object, not the hand, must be used when administering discipline. R. v. F. (T.) E.F. De Walle Prov. J. 73

26 He further testified that when he was young he received a lot of punishment from his parents that ranged from groundings to spankings. He said that his father would spank him with an orange plastic spoon. He said that his mother would also spank him. 27 The father testified that he had no clue that the law does allow corporal punishment, and that he was breaking the law when he spanked his daughter. He stated that spanking should stop at some age depending on the maturity of the child. He stated, for example, that he would not spank a 23 year old child. He said that he does not enjoy spanking. 28 After finding out about the nude messages, the father testified he discussed the matter with his wife by telephone. They agreed that some form of discipline was required. He and the daughter went to the garage of their home where they discussed forms of discipline. 29 He testified that his daughter was given a choice and that she consented to being spanked. He picked up a plastic mini hockey stick in the garage and hit his daughter on the buttocks. He said that the amount of force he used was not unreasonable in the circumstances. He also testified that he did not discuss with his daughter how many blows with the stick would be applied to her. He stated that his daughter understood what she did was wrong and that she was remorseful. 30 The father also testified that although his daughter was remorseful there was still a need for punishment and some consequences. 31 The father said that his wife came into the garage. He talked to her about punishment and said that their daughter had chosen a spanking. He suggested to the mother that she should also spank their daughter. The daughter was not given another choice at that time. The father testified he felt that because of the daughter’s actions the mother should also spank her so that the daughter would “get the gravity of her actions”. 32 The father described how the mother used the skipping rope to hit the daughter’s buttocks. He said the hits were hard enough to cause some discomfort. He was not able to say whether he or the mother used more force on the daughter. 33 In cross-examination the father was questioned about his reasons for administering a spanking. He said that the daughter did not have the option of saying no to the options presented to her. He testified that his daughter’s act of texting nude pictures of herself was not an act that could go unpunished. He further testified that his actions were not about pain, but just a form of discipline. 74 CRIMINAL REPORTS 27 C.R. (7th)

34 Credibility is not a significant issue in this case. The father testified in a straightforward manner. For the most part his evidence is consistent with the Statement of Admissions the Crown relies on in this case. 35 There is one troubling aspect to the father’s testimony and it relates to his denial that the daughter’s two friends saw the bruising they described seeing on February 16 at the school. The accused was not present at the school when the friends looked at the injuries they described. There is no evidence that the father looked at the daughter’s buttocks at any time to see what impact the spanking administered by the mother and himself had on her body. 36 The testimony of the father regarding the injuries to his daughter suggests that he is downplaying the seriousness of the events that took place in the garage of his home. At the very least the father’s evidence leads me to conclude that he gave little thought, if any, to possible injuries suffered by his daughter.

The Issues 1. Did the complainant consent to the application of force to her body? 2. In the circumstances of this case does s. 34 of the Criminal Code provide a defence to the charge under s. 267(a) of the Criminal Code?

The Law Regarding Consent 37 I now turn to the first issue and the applicable law. 38 The parents in this case are charged pursuant to s. 267(a) of the Crim- inal Code which reads as follows: 267. Every one who, in committing an assault, (a) carries, uses or threatens to use a weapon or an imitation thereof, or (b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months. 39 Assault is defined in s. 265 of the Criminal Code where it states: 265. (1) A person commits an assault when R. v. F. (T.) E.F. De Walle Prov. J. 75

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. (3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (a) the application of force to the complainant or to a person other than the complainant; (b) threats or fear of the application of force to the complainant or to a person other than the complainant; (c) fraud; or (d) the exercise of authority. (4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. 40 In R. v. Stanley (1977), 36 C.C.C. (2d) 216 (B.C. C.A.) the court held that to be effective the consent to the assault must be freely given with appreciation of all the risks and not merely submission to an apparently inevitable situation. 41 The Supreme Court of Canada also reviewed the scope and limitations of consent in the case of R. v. Jobidon, [1991] 2 S.C.R. 714 (S.C.C.). In that case the accused was charged with manslaughter, through the offence of assault, following a fist fight. The trial judge held that the victim’s consent to a “fair fight” negated the offence of assault. 42 In Jobidon, Sopinka J. dealt with the issue of consent in relation to s. 265 of the Code and stated: Rather, the policy reflected in s. 265 is to make the absence of consent a requirement in the definition of the offence but to restrict con- 76 CRIMINAL REPORTS 27 C.R. (7th)

sent to those intentional applications of force in respect of which there is a clear and effective consent by a victim who is free of coercion or misrepresentation. Instead of reading the words “without the consent of another person” out of s. 265 I am of the opinion that the intention of Parliament is respected by close scrutiny of the scope of consent to an assault. Instead of attempting to evaluate the utility of the activity the trial judge will scrutinize the consent to determine whether it applied to the very activity which is the subject of the charge. The more serious the assault the more difficult it should be to establish consent. 43 I must also take into account s. 265 (3)(d) where it states: 265.(3) For the purposes of this section, no consent is obtained where the complainant submits or does resist by reason of ... (d) the exercise of authority.

Analysis 44 Therefore, it is incumbent on me to carefully scrutinize the circumstances of the application of force by both accused on the child. 45 The accused parents were clearly in a position of authority to the complainant. She was their daughter and, as a result, she was dependent on their care and support. The complainant was 14 years old and lived at home with her parents. She was also dependent on her parents for her safety and well-being. In these circumstances, it is my view that the defence of consent is not available to the accused. I would go further, and suggest, that only in rare circumstances, if ever, would the defence of consent be available to a parent who has applied force to a child. 46 Furthermore, I find that although the complainant chose a “spanking” it was not a fully informed consent with an appreciation of all the consequences. The complainant was not told how the discipline would be applied, what instrument would be used, and how many blows would be used. The facts of this case are serious. The complainant was hit with a plastic mini hockey stick by one parent and a skipping rope by another parent. The daughter had obvious bruises on her body because of the discipline applied by the parents. 47 The decision in the Jobidon case makes it clear the more serious the assault, the more difficult it should be to establish consent. The amount of force applied, the use of weapons, and the subsequent injuries are all aggravating circumstances that are relevant to the determination of the R. v. F. (T.) E.F. De Walle Prov. J. 77

seriousness of the assault. I am not satisfied that the accused in this case have established consent as a defence to their actions. 48 I find that the Crown has established a lack of consent in all the circumstances of this case. 49 I turn now to the second issue, namely, does section 34 of the Code provide a defence in this case?

The Law Regarding s. 34 of the Criminal Code 50 The Supreme Court of Canada in the case of Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General), 2004 SCC 4 (S.C.C.) (CanLII) the Court found that Section 43 of the Criminal Code does not offend s. 7 of the Charter. The Court set out a number of considerations that apply in determining where corrective force is reasonable. 51 In the Canadian Foundation case McLachlin C.J., writing for the majority of the Court referred to the purpose of s. 43 as follows: 19 The purpose of s. 43 is to delineate a sphere of non-criminal conduct within the larger realm of common assault. It must, as we have seen, do this in a way that permits people to know when they are entering a zone of risk of criminal sanction and that avoids ad hoc discretionary decision making by law enforcement officials. People must be able to assess when conduct approaches the boundaries of the sphere that s. 43 provides. 52 The Court then went on to set out two limitations to the requirement that the force be “by way of correction”. The Court states: 24 First, the person applying the force must have intended it to be for educative or corrective purposes: Ogg-Moss, supra, at p. 193. Ac- cordingly, s. 43 cannot exculpate outbursts of violence against a child motivated by anger or animated by frustration. It admits into its sphere of immunity only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of his or her behaviour. The purpose of the force must always be the education or discipline of the child: Ogg-Moss, supra, at p. 193. 25 Second, the child must be capable of benefiting from the correction. This requires the capacity to learn and the possibility of successful correction. Force against children under two cannot be corrective, since on the evidence they are incapable of understanding why they are hit (trial decision (2000), 49 O.R. (3d) 662, at para. 17). A child may also be incapable of learning from the application of force be- 78 CRIMINAL REPORTS 27 C.R. (7th)

cause of disability or some other contextual factor. In these cases, force will not be “corrective” and will not fall within the sphere of immunity provided by s. 43. 26 The second requirement of s. 43 is that the force be “reasonable under the circumstances”. The Foundation argues that this term fails to sufficiently delineate the area of risk and constitutes an invitation to discretionary ad hoc law enforcement. It argues that police officers, prosecutors and judges too often assess the reasonableness of corrective force by reference to their personal experiences and beliefs, rendering enforcement of s. 43 arbitrary and subjective. In support, it points to the decision of the Manitoba Court of Appeal in R. v. K. (M.) (1992), 74 C.C.C. (3d) 108, in which, at p. 109, O’Sullivan J.A. stated that “[t]he discipline administered to the boy in question in these proceedings [a kick to the rear] was mild indeed compared to the discipline I received in my home”. 53 It is necessary for this Court to consider all the circumstances under which the corrective force was used. 54 In further reviewing the ambit of s. 34 McLachlin C.J. goes on to say: 35 By contrast, it is improper to retrospectively focus on the gravity of a child’s wrongdoing, which invites a punitive rather than corrective focus. “[T]he nature of the offence calling for correction”, an additional factor suggested in R. v. Dupperon (1984), 16 C.C.C. (3d) 453 (Sask. C.A.), at p. 460, is thus not a relevant contextual consideration. The focus under s. 43 is on the correction of the child, not on the gravity of the precipitating event. Obviously, force employed in the absence of any behaviour requiring correction by definition cannot be corrective. 36 Determining what is “reasonable under the circumstances” in the case of child discipline is also assisted by social consensus and expert evidence on what constitutes reasonable corrective discipline. The criminal law often uses the concept of reasonableness to accom- modate evolving mores and avoid successive “fine-tuning” amendments. It is implicit in this technique that current social consensus on what is reasonable may be considered. It is wrong for caregivers or judges to apply their own subjective notions of what is reasonable; s. 43 demands an objective appraisal based on current learning and consensus. Substantial consensus, particularly when supported by expert evidence, can provide guidance and reduce the danger of arbitrary, subjective decision making. 37 Based on the evidence currently before the Court, there are significant areas of agreement among the experts on both sides of the issue (trial decision, at para. 17). Corporal punishment of children under R. v. F. (T.) E.F. De Walle Prov. J. 79

two years is harmful to them, and has no corrective value given the cognitive limitations of children under two years of age. Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful. Corporal punishment which involves slaps or blows to the head is harmful. These types of punishment, we may conclude, will not be reasonable. ... 40 When these considerations are taken together, a solid core of meaning emerges for “reasonable under the circumstances”, sufficient to establish a zone in which discipline risks criminal sanction. .... 55 In R. v. Swan, [2008] O.J. No. 975 (Ont. S.C.J.) the court dealt with a situation where the father of a teenager used force as a corrective measure. The father took hold of his 15 year old daughter and placed her into his vehicle to take her home. The testimony of the daughter was that her father grabbed her and threw her into the truck. The daughter was planning to go to a party to meet her boyfriend, who posed a threat to her. 56 In the B.S. case Robertson J. dealt with two issues, namely: 1. Can section 43 apply to teenagers? 2. Was the child capable of benefitting from correction? 57 Robertson J. reviewed the Canadian Foundation case in detail and concluded although the Supreme Court of Canada did not absolutely pro- hibit the correction of teens it does stand for the proposition that on the basis of current expert consensus s. 43 does not apply to corporal punishment of children under two or teenagers. 58 The court held in the B.S. case that the circumstances were exceptional. There were no physical injuries to the child. No weapon was used and the child was not spanked or hit in any other manner. Acting on his belief that the child was embarking on an unsafe path Robertson J. concluded that the force used by the father was “by way of correction”. The court allowed the appeal from a finding of guilt at the trial court. The facts in the B.S. case are clearly distinguishable from the facts in this case. 59 It is clear that the majority of the court in the Canadian Foundation case concluded that corporal punishment of teenagers, particularly with the use of objects or blows or slaps to the head, is prohibited because it does not have corrective value. 80 CRIMINAL REPORTS 27 C.R. (7th)

Analysis 60 The question of the application of s. 34 in this case requires a careful examination of the relevant context in light of all the circumstances of the case. 61 I find the relevant circumstances to be as follows: • At the relevant time the daughter was a teenager, 14 years of age. Her 15th birthday was several months after this incident. • The daughter was living in the home of her parents. • The father discovered that his daughter had “sexted” nude pictures of herself to her boyfriend. • The father told his daughter as he struck her that he was doing this because he loved her and not out of hate. • The father took his daughter to the garage of the residence where he used a plastic mini hockey stick to strike his daughter several times on her buttocks. • The mother used a skipping rope to strike her daughter several times on her buttocks. • The mother told her daughter that she was spanking her because she loved her. • Two days later the daughter’s two friends saw that her buttocks were red, swollen, and bruised. • On February 23rd a local doctor noted that the daughter’s right buttock showed healed linear bruises. 62 The first requirement of s. 34 is that the force be “by way of correction”. The force must be intended for educative or corrective purposes as prescribed by the majority in Canadian Foundation at paragraph 24 of the decision. 63 It is my finding that the force applied to the child was clearly not intended for educative or corrective purposes. The father testified that his purpose in spanking the daughter was for punishment. He was unable to articulate any other purpose for the spanking. 64 In this day and age any reasonable parent would be concerned about a teenager sending nude pictures of him or herself via a cell phone or any other electronic device. The pitfalls and potential dangers of such activities are well reported. Such behaviours can lead to bullying and even suicide as a number of very high profile cases in the last few years have shown. To suggest that responding to such acts by a teenaged daughter, R. v. F. (T.) E.F. De Walle Prov. J. 81

(14 going on 15 years), by spanking her with an object would be educative or corrective is simply not believable or acceptable by any measure of current social consensus. 65 I would go further and say that the parent’s reaction in this case could not possibly be supported by expert evidence. In the Canadian Founda- tion case the Supreme Court of Canada considered and detailed a number of studies and authorities on the subject of child discipline and concluded at paragraph 40: 40 ... Generally, s. 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. On the basis of current expert consensus, it does not apply to corporal punishment of children under two or teenagers. Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. Coupled with the requirement that the conduct be corrective, which rules out conduct stemming from the caregiver’s frustration, loss of temper or abusive personality, a consistent picture emerges of the area covered by s. 43. It is wrong for law enforcement officers or judges to apply their own subjective views of what is “reasonable under the circumstances”; the test is objective. The question must be considered in context and in light of all the circumstances of the case. The gravity of the precipitating event is not relevant. 66 The parents took no educative or corrective steps by seeking out expert help or any other assistance to discuss their daughter’s actions with her. Their actions were solely punitive and not corrective. In my view, the actions of the parents were also degrading. 67 The second requirement of s. 34 is determining what is “reasonable under the circumstances” in the case of child discipline. 68 The Canadian Foundation case says that corporal punishment of teenagers is harmful because it can induce aggressive or antisocial behaviour. In addition, punishment using objects such as “rulers, or belts” is “physically and emotionally” harmful. This statement is made in the context of the first line in paragraph 37 of the decision that reads: Based on the evidence before the Court, there are significant areas of agreement among the experts on both sides of the issue. 69 Furthermore, in considering all of the circumstances in this case, I refer to the use of weapons, namely the plastic mini hockey stick and the skipping rope, in applying force to the complainant. I also note that she 82 CRIMINAL REPORTS 27 C.R. (7th)

suffered injuries that, in my view, were not of a transitory or trifling nature. The manner in which the parents used force and the injuries that resulted, lead me to conclude that the spanking in this case amounted to excessive corporal punishment. 70 The personal beliefs of the parents on the issue of child discipline, no matter how sincerely held, cannot be used contrary to the law set out in s. 34 of the Criminal Code and the principles set out by the Supreme Court of Canada in the Canadian Foundation case. The Canadian Foundation case says that an “objective” rather than a “subjective” test must be applied when determining what discipline is reasonable in all the circumstances. 71 In conclusion, I find that the spankings were not applied for corrective purposes and were not reasonable in all the circumstances. The defence of s. 34 is not available to the parents in this case. 72 I find that the Crown has established the elements of the charge in this case beyond any reasonable doubt and I find both accused guilty as charged. Accused convicted. R. v. Smale 83

[Indexed as: R. v. Smale] Her Majesty the Queen and Gary Clayton Edward Smale Alberta Provincial Court Docket: Calgary 150352219P1 2016 ABPC 39 M.T.C. Tyndale Prov. J. Judgment: February 18, 2016 Offences –––– Sexual assault — General offence — Elements — Sexual –––– Holding of complainant’s hips not sexual in nature — Touching was brief and done to get her attention in noisy environment — Context in which touching occurred was not sexual. Defences –––– De minimis non curat lex –––– De minimis defence available where assault was momentary and caused no injuries — Touching was not sufficiently serious to attract the application of the criminal law. The accused was charged with the sexual assault of his employee. The accused operated a residential cleaning business and the complainant worked for him. The accused and the complainant were cleaning a house with two other women. While the complainant was dusting a table and the accused was vacuuming, the accused came up behind her and placed his hands on her hips. She moved to the side and he detached the hose from the wall under the table. The accused then attached the hose to another outlet and continued to vacuum. The complainant was distressed and left the house a short time later. She went to a neighbouring residence and called police. The complainant had worked for the accused on 25 to 30 prior jobs and he had always behaved professionally. The accused testified that he touched the complainant in order to move her and that while he had not asked for permission, he assumed it was okay to touch her. Held: The accused was acquitted The defence and the Crown agreed that the accused had touched the complainant without her consent. However, the Crown had failed to prove that the touching was of a sexual nature. The hips, outside of clothing, were not a body part normally understood as sexual or private. A firm hold for a couple of seconds was not inevitably sexual. The touching occurred in a well-lit room with two other employees in the home. The accused did not do or say anything else that would place the touching in a sexual context and his behaviour afterwards, which was to continue vacuuming, did not place the touching in a sexual context. The accused should not be found guilty of the included offence of common assault. In this case, the de minimis principle should be applied to provide the 84 CRIMINAL REPORTS 27 C.R. (7th)

accused with a defence. The touching, while not consented to by the complainant and the source of distress to her, was so trivial that it ought not to be considered criminal. It was made in the contact of day-to-day interaction, was brief and caused no injuries.

Comment

As the judge in this case notes, the defence of de minimis non curat lex has not been recognized by the Supreme Court of Canada as available in Canadian law. However, a number of lower courts have been willing to recognize its validity. In the context of assault, the court quotes from cases which note that the availability of the defence does not depend on a characterization of the assault itself as trifling to the victim, but rather on the court’s judgment that the conduct does not cross the line into criminal conduct. Courts have identified several categories of conduct that may qualify: touching that is a part of day to day social interaction (a tap on the shoulder to get someone’s attention); pranks or jokes that cause no real harm (a shower of confetti or a squirt from a water gun) or touching of a child by a parent as part of the caregiving role (putting a reluctant child in the bathtub). Some of these scenarios can be dealt with in other ways – through a concept of implied consent, or specific statutory defences like the reasonable correction defence in s. 43 of the Criminal Code but each of these routes has its own drawbacks. If the purpose of a broad offence of assault is to recognize that everyone has the right to bodily integrity, the de minimis defence needs to be interpreted nar- rowly, and in a way that is alert to the context in which the assault takes place. For example, it would be of concern if the defence were to be routinely invoked in the domestic context for pushes and slaps by a spouse. Similarly, if a person makes clear that they do not want to be touched even in a minimal fashion, a deliberate breach of personal boundaries should qualify as an assault. The court in Smale does not have to consider the question of whether the de minimis defence might apply to a sexual assault. Since the sexual nature of the touching is measured objectively, with the intention or purpose of the accused only one factor to be considered, is it possible that there could be touching that violates the sexual integrity of the victim that should not attract the attention of the criminal law? It seems unwise to speculate on the circumstances in which such a case could ever arise. If it is raised, it seems important that the same caution applies as in the context of domestic violence so as not to validate abuses of power. Janine Benedet Allard School of Law, University of British Columbia R. v. Smale 85

Cases considered by M.T.C. Tyndale Prov. J.: R. v. Breadner (2015), 2015 ABPC 131, 2015 CarswellAlta 1147, [2015] A.J. No. 707 (Alta. Prov. Ct.) — considered R. v. C. (A.S.) (1996), 1996 CarswellAlta 470, [1996] A.J. No. 1019 (Alta. Prov. Ct.) — referred to R. v. Chapman (2008), 2008 ONCJ 552, 2008 CarswellOnt 6493, [2008] O.J. No. 4391 (Ont. C.J.) — considered R. v. Dejong (2005), 2005 BCPC 546, 2005 CarswellBC 2816, [2005] B.C.J. No. 2546 (B.C. Prov. Ct.) — referred to R. v. Elek (March 17, 1994), Doc. T.C. 92-13423, [1994] Y.J. No. 31 (Y.T. Terr. Ct.) — followed R. v. Ewanchuk (1999), 1999 CarswellAlta 99, 1999 CarswellAlta 100, 131 C.C.C. (3d) 481, 169 D.L.R. (4th) 193, 235 N.R. 323, 22 C.R. (5th) 1, 232 A.R. 1, 195 W.A.C. 1, 68 Alta. L.R. (3d) 1, [1999] S.C.J. No. 10, [1999] 6 W.W.R. 333, [1999] 1 S.C.R. 330 (S.C.C.) — followed R. v. Harrison (1992), 1992 CarswellAlta 961 (Alta. Prov. Ct.) — referred to R. v. Hinchey (1996), 111 C.C.C. (3d) 353, 205 N.R. 161, 142 D.L.R. (4th) 50, 3 C.R. (5th) 187, 147 Nfld. & P.E.I.R. 1, 459 A.P.R. 1, [1996] 3 S.C.R. 1128, [1996] S.C.J. No. 121, 1996 CarswellNfld 253, 1996 CarswellNfld 254, EYB 1996-67362 (S.C.C.) — considered R. v. Hnatiuk (2000), 2000 ABQB 314, 2000 CarswellAlta 1642, [2000] A.J. No. 545 (Alta. Q.B.) — considered R. v. Kiemele (2011), 2011 ABPC 325, 2011 CarswellAlta 2106, [2011] A.J. No. 1188, 529 A.R. 348 (Alta. Prov. Ct.) — referred to R. v. Kolebaba (2011), 2011 BCPC 1, 2011 CarswellBC 322, [2011] B.C.J. No. 21 (B.C. Prov. Ct.) — referred to R. v. L. (R.H.) (2008), 2008 NSCA 100, 2008 CarswellNS 563, 270 N.S.R. (2d) 123, 865 A.P.R. 123, [2008] N.S.J. No. 468 (N.S. C.A.) — referred to R. v. Lepage (1989), 79 Sask. R. 246, 74 C.R. (3d) 368, 1989 CarswellSask 27, [1989] S.J. No. 579 (Sask. Q.B.) — referred to R. v. Matsuba (1993), 137 A.R. 34, 1993 CarswellAlta 599, [1993] A.J. No. 93 (Alta. Prov. Ct.) — referred to R. v. McLeod (2006), 2006 ABPC 114, 2006 CarswellAlta 693, 421 A.R. 356, [2006] A.J. No. 644 (Alta. Prov. Ct.) — referred to R. v. Merasty (2002), 2002 SKPC 86, 2002 CarswellSask 621, 225 Sask. R. 120, [2002] S.J. No. 586 (Sask. Prov. Ct.) — referred to R. v. Morrisey (2011), 2011 ABCA 150, 2011 CarswellAlta 815, [2011] A.J. No. 553 (Alta. C.A.) — referred to R. v. Morrow (2009), 2009 ABPC 114, 2009 CarswellAlta 614, 12 Alta. L.R. (5th) 382, [2010] 4 W.W.R. 529, 471 A.R. 177 (Alta. Prov. Ct.) — considered 86 CRIMINAL REPORTS 27 C.R. (7th)

R. v. Murdock (2003), 2003 CarswellOnt 2376, 11 C.R. (6th) 43, 173 O.A.C. 171, 176 C.C.C. (3d) 232, 107 C.R.R. (2d) 152, [2003] O.J. No. 2470 (Ont. C.A.) — referred to R. v. Murphy (2010), 2010 NBPC 40, 2010 CarswellNB 629, [2010] N.B.J. No. 405, 946 A.P.R. 133, 367 N.B.R. (2d) 133 (N.B. Prov. Ct.) — referred to R. v. Nicol (2002), 2002 MBCA 151, 2002 CarswellMan 474, [2003] 1 W.W.R. 420, 170 C.C.C. (3d) 59, 8 C.R. (6th) 151, 170 Man. R. (2d) 127, 285 W.A.C. 127, [2002] M.J. No. 437 (Man. C.A.) — distinguished R. v. Pederson (2010), 2010 ABPC 287, 2010 CarswellAlta 1737 (Alta. Prov. Ct.) — referred to R. v. Tan (2010), 2010 ABPC 163, 2010 CarswellAlta 1000, 31 Alta. L.R. (5th) 322, 492 A.R. 186 (Alta. Prov. Ct.) — considered R. v. Thornton (2012), 2012 BCPC 360, 2012 CarswellBC 3151, [2012] B.C.J. No. 2136 (B.C. Prov. Ct.) — referred to Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 s. 265(1) “assault” (a) — considered

TRIAL of accused on charge of sexual assault.

E. Frank, for Crown P. Fagan, for Defence

M.T.C. Tyndale Prov. J.: Introduction 1 Gary Smale is charged with the sexual assault of C.C. arising out of events which occurred on March 3, 2015. The trial was held before me on November 12, 2015, in Cochrane Provincial Court. This is my judgment in this matter.

Issues 2 The first issue is whether the Crown has proved beyond a reasonable doubt the three essential elements of the actus reus of sexual assault. The second issue is, in the event that the Crown has failed to prove a sexual assault, has the Crown has proved a common assault.

Evidence of the Complainant 3 Between January 2015 and March 3, 2015, C.C. worked for Mr. Smale in his residential cleaning business. On March 3, 2015, C.C. and Mr. Smale, along with two other female employees, were cleaning a R. v. Smale M.T.C. Tyndale Prov. J. 87

home. C.C. was cleaning in the kitchen area of the open-concept house. One of the other women was upstairs cleaning the master bathroom. The other female employee was cleaning downstairs. Mr. Smale was vacuuming in the livingroom/diningroom area. 4 C.C. moved into the diningroom area and began dusting a glass table. Mr. Smale was vacuuming across the room. He was using a vacuum hose attached to an in-wall system, similar to a Vacu-Flo system. The hose was plugged into a hose outlet just below the glass table. As the vacuum was still running, C.C. did not hear Mr. Smale approach her. Mr. Smale stood directly behind her and placed his hands on her hips. C.C. stepped out of the way. C.C. did not hear Mr. Smale say anything before or after the touching. After she moved out of the way, Mr. Smale unplugged the hose, moved it to another hose outlet, and continued vacuuming. 5 C.C. was very upset, but tried not to show it. She texted her mother, asking her what she should do. After a short time, C.C. made an excuse, left the house, and ran down the street. She knocked on the door of the Ruff house. Upset and crying, she was taken in by the Ruffs, who called police. 6 C.C. described the contact as “a hold, not a touch.” It lasted a couple of seconds, with firm pressure. She felt the touch “totally crossed the line.” She felt Mr. Smale had gone out of his way to touch her in order to move the vacuum hose. She said the touching made her feel “awful”. She felt violated. She felt there was no need for Mr. Smale to touch her, as he could have asked her to move. 7 C.C. related that Mr. Smale had touched her prior to this incident during the time she had worked for him. He had touched her shoulder, or her back. When telling a joke in the vehicle, he had tapped her knee. She recalled these touches as being playful or innocent. 8 On March 3, when Mr. Smale touched her with both hands on her hips, she felt he had touched her inappropriately. She said it “all came together.” She stated she was afraid something more was going to happen. 9 In cross-examination C.C. recalled that Mr. Smale had picked up all three female employees and driven them to the house to clean. Mr. Smale had picked up C.C. at her home as she did not have a vehicle. 10 C.C. recalled that as she moved to clean the glass table, she could see Mr. Smale vacuuming in the livingroom. She was, therefore, surprised to feel his hands on her hips. In reaction, she quickly moved to one side. 88 CRIMINAL REPORTS 27 C.R. (7th)

Mr. Smale stepped into the space she had vacated, unplugged the vacuum hose from the wall, moved the hose to the other end of the livingroom, and kept vacuuming. 11 C.C. had worked for Mr. Smale on 25 to 30 occasions. They had spo- ken together many times. She agreed that not once had Mr. Smale said anything to her of a sexual nature. Just the previous week, C.C. and Mr. Smale had worked together, alone, at night, cleaning commercial premises. Everything had been “professional.” 12 C.C. agreed that it had happened in the past that Mr. Smale had touched her in order to move her, for example, when they were working in close proximity. 13 C.C. categorically denied that on March 2, the day before the incident, she had called in sick, claiming she had a doctor’s appointment, but in fact, her mother had driven her to a job interview. C.C. agreed that she had claimed as restitution against Mr. Smale $1620 for bodily harm and psychological harm.

Other Crown Evidence 14 An Agreed Statement of Facts was read into the record that M.G., the mother of C.C., gave a statement to the police on March 3, 2015, that on March 2, 2015, at 3:30 pm she had driven her daughter to a job interview in Springbank, Alberta. 15 Darlene Ruff testified that on March 3, 2015, a crying and hysterical young girl had knocked on her door. She and her husband had brought her inside, and called the police.

Evidence of the Accused 16 Mr. Smale has owned and operated the residential cleaning company for approximately 8 years. In March 2015, he had about 6 female employees. He has no criminal record. 17 In relation to C.C., Mr. Smale denied having expressed any romantic interest in her. He denied that she had expressed any romantic interest in him. He denied that he had any sexual interest in her. 18 Mr. Smale described that on the day in question, he was using a central vacuum system and was vacuuming in the diningroom and livingroom. The hose was plugged into an outlet in the diningroom under the glass table. C.C. had finished cleaning in the kitchen and had moved to R. v. Smale M.T.C. Tyndale Prov. J. 89

dusting in the diningroom. When Mr. Smale reached the end of the length of the hose, C.C. was dusting the glass table. 19 Mr. Smale described the contact between them as follows: “I walked over to her, touched her to move her, she moved, and I moved the hose.” He was not exactly sure where he had touched her. When asked why he had touched her, he replied, “I needed her to move.” 20 In cross-examination Mr. Smale was clear that he had asked C.C. and touched her. She moved. This had happened before, and was common among those working closely together. He had not asked C.C. for permission to touch her. He had assumed it was okay to touch C.C.

The Law: Actus Reus of Sexual Assault 21 The leading case setting out the essential elements of the offence of sexual assault is R. v. Ewanchuk, reported at [1999] 1 S.C.R. 330 (S.C.C.). In it, Justice Major, for the court, says as follows: 23 A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched. (1) Actus Reus 24 The crime of sexual assault is only indirectly defined in the Crimi- nal Code, R.S.C. 1985, c. C-46. The offence is comprised of an assault within any one of the definitions in s. 265(1) of the Code, which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated: see R. v. S. (P.L.), [1991] 1 S.C.R. 909 (S.C.C.). Section 265 provides that: 265. (1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. 90 CRIMINAL REPORTS 27 C.R. (7th)

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. 25 The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’s actions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour: see R. v. Litchfield, [1993] 4 S.C.R. 333 (S.C.C.), and R. v. Chase, [1987] 2 S.C.R. 293 (S.C.C.).

Application of the Law to the Facts 22 Both counsel agreed in argument that the first and third required elements of the actus reas of sexual assault, above, have been established. The issue is whether the Crown has proved beyond a reasonable doubt the sexual nature of the touching. 23 In determining this issue, I have weighed the following factors: 1. The part of the body touched. C.C. testified that the Accused placed his hands on the outside of her hips, over her clothes. The outside of the hips, above the clothes, is not an area of the body ordinarily included within the definition of “private parts”; that is, there is nothing inherently sexual about that part of the body, and it is not an area encompassing external sexual organs, or secondary sexual characteristics. 2. The nature of the force used. C.C. described the touch as “a hold, not a touch”, with firm pressure. I do not find that the nature of the force employed compels me to the conclusion that the touching was sexual in nature. 3. The duration of the touch. C.C. described the touching as lasting a couple of seconds. I do not find that the duration of the touch leads inevitably to the finding that the touch was sexual in nature. 4. The location of the touching. The touching occurred in daylight, in an apparently well-lit great-room area of a house being cleaned by the Accused and his employees. Although the complainant and the Accused were, at that time, alone in that area of the house, there R. v. Smale M.T.C. Tyndale Prov. J. 91

were two other female employees of the Accused’s company within the house who were free to come and go unexpectedly. 5. Other actions of the accused. There were no actions of the Ac- cused accompanying the touching which might have painted the touching in a sexual light. For example, there was no evidence that the Accused pulled C.C. toward him, or otherwise brushed against her. 6. Any words of the accused accompanying the contact. There were no words of a sexually suggestive nature uttered by the Accused concurrent with the touching which might have served to place the touching within a sexual context. Rather, Mr. Smale’s evidence was that he had asked C.C. to move, touched her, and she moved. 7. The Accused’s actions immediately following the touching. Both the complainant and the Accused testified that when the Accused touched C.C., she moved to one side. Without pause, the Accused released her, bent down and unplugged the vacuum hose from the wall outlet and moved to another part of the house to continue vacuuming. 8. The intent of the accused. The Accused testified that he had no sexual intent at the time of the touching, and the Crown accepts that the Accused may have had no sexual intent at the time of the touching. 9. The historical context of the touching. The complainant testified that the Accused had touched her on a number of occasions during the course of her employment. She felt these were, in her words, “innocent.” I do not raise this to imply that because the complainant had impliedly consented to the previous contact that she can be taken to have consented to this contact. She clearly did not. I also do not raise this in support of a finding that because prior contact had not been complained of, the Accused therefore believed she was consenting on this occasion. His testimony contained no such claim. I consider this simply to show that no evidence of the sexual nature of this contact could be inferred by reference to previous contact. That is, there was no evidence of “grooming” of the complainant, or of any escalating conduct by the Accused. 92 CRIMINAL REPORTS 27 C.R. (7th)

Conclusion 24 In considering the above factors, and the evidence as a whole, I am not satisfied that the sexual context of the touching would be apparent to any reasonable observer. R. v. Morrisey, 2011 ABCA 150 (Alta. C.A.). Determined objectively, I am not persuaded that the touching was sexual in nature. 25 I am left with a reasonable doubt as to the sexual nature of the touching. I conclude, therefore, that the Crown has failed to convince me beyond a reasonable doubt that the touching was sexual in nature. I find the Accused not guilty of the charge of sexual assault. 26 That does not end the matter. I must now determine whether the evidence proves beyond a reasonable doubt that the Accused is guilty of assault simpliciter.

Assault 27 The relevant portion of section 265 of the Criminal Code defines assault as follows: 265 (1) A person commits an assault when: (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

Mens Rea of Assault 28 The unwanted touching alone does not constitute intentional application of force so as to constitute assault; the touching must be accompanied by “hostility, animus or improper intent”: R. v. Pederson, 2010 ABPC 287 (Alta. Prov. Ct.), at paras 34 and 36, R. v. C. (A.S.), 1996 CarswellAlta 470 (Alta. Prov. Ct.), at paras 26-27. “Improper intent” appears to be a high threshold: R. v. Matsuba, 1993 CarswellAlta 599 (Alta. Prov. Ct.). Acting out of “force of habit” may render the act not intentional: R. v. McLeod, 2006 ABPC 114 (Alta. Prov. Ct.).

Actus Reus of Assault and the De Minimis Principle 29 In R. v. Morrow, 2009 ABPC 114 (Alta. Prov. Ct.), Judge LeGrandeur reviewed the actus reus of assault: 49. The character of a man’s act is dependent upon the circumstances in which it occurred. There is a contextual aspect to every assault charge. Not all touching is assaultive, not all application of restraint by one person on another is assault. It is always dependent upon the circumstances that accompany the act. This has been recognized by R. v. Smale M.T.C. Tyndale Prov. J. 93

the Supreme Court of Canada on more than one occasion. In R. v. Jobidon, (1991) 66 C.C.C. (3d) 45, (S.C.C.), the Court discussed the broad definition of assault set out in the Criminal Code at para. 65: Assault has been given a very encompassing definition in s.265. It arises whenever a person intentionally applies force to a person “directly or indirectly”, without the other’s consent. The definition says nothing about the degree of harm which must be sustained. Nor does it refer to the motives for the touching. If taken at face value, this formulation would mean that the most trivial intended touching would constitute assault. As just one of many possible examples, a father would assault his daughter if he attempted to place his scarf around her neck to protect her from the cold but she did not consent to that touching, thinking the scarf ugly or undesirable (even an argument for implied consent would not seem to apply in a case like this.). That absurd consequence could not have been intended by Parliament. Rather its intention must have been for the Courts to explain the content of the offence, incrementally and over the course of time. 50. In the constitutional case ofCanadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 (“Canadian Foundation”), Arbour J. made the following comments with respect to common offences and defences and the use of force and criminal culpability: 136. Setting aside any constitutional considerations for the moment, courts are expressly prohibited by s.9 of the Code from creating new common law offences. All criminal offences must be enacted by statute. On the other hand, the courts have been and continue to be the guardi- ans of common law defences. This reflects the role of courts as enforcers of fundamental principles of criminal responsibility including, in particular, the fundamental concept of fault which can only be reduced or displaced by statute. 51 She went on to note that the use of force never automatically trig- gers criminal liability: 148. Parliament has not dictated a priori that use of force will never be reasonable in any circumstances. The statutory framework is one that leaves the appreciation of reasonableness to the courts to develop on a case-by-case basis as the myriad of live circumstances are brought before 94 CRIMINAL REPORTS 27 C.R. (7th)

the courts or are screened out by prosecutorial discretion. This is not a novel approach either in the law generally or within the criminal law context where reasonableness often plays a crucial part in the determination of criminal responsibility. ... 52. It is clear that not every touching by a parent of his or her child is an assault even if the touching is unwanted by the child. That cannot have been the intention of Parliament when it enacted s.265. Literal application of the definition of assault in s.265 would mean every touching of a child, even if it were directed at saving a child from harm, would be an assault (Murphy, para. 35). Common sense requires that the reality of the action be considered in the circumstances of its happening. 53 In each case the culpability of the alleged offender must be dependent upon the context and circumstances in which the act of the alleged offender occurred. ... 30 Similarly, in R. v. Breadner, 2015 ABPC 131 (Alta. Prov. Ct.), Judge Shriar summarized: [49] In R. v. Jobidon, [1991] 2 S.C.R. 714, the Supreme Court of Canada commented on the absurd consequences that would flow if every form of even trivial contact between two people was considered an assault, given a very broad definition of assault in the Crimi- nal Code. Although the case concerned the issue of consent, in the end the court held that it is up to trial courts to consider the application of force in the context of the facts. 31 A number of courts, in characterizing an accused’s alleged assault as minor or trivial, have applied the “de minimis non curat lex” defence. 32 There does not appear to be any decision of the Supreme Court of Canada or of any Court of Appeal which settles the question of whether the doctrine of “de minimis” applies in Canadian criminal law. 33 In R. v. Hinchey, [1996] 3 S.C.R. 1128 (S.C.C.), Madam Justice L’Heureux-Dub´e made the following comments: 69 In my view, this interpretation removes the possibility that the section will trap trivial and unintended violations. Nevertheless, assuming that situations could still arise which do not warrant a criminal sanction, there might be another method to avoid entering a conviction: the principle of de minimis non curat lex, that “the law does not concern itself with trifles”. This type of solution to cases where an accused has “technically” violated a Code section has been proposed by the Canadian Bar Association, in Principles of Criminal Liability (1992), and others: see Professor Stuart, Canadian Crimi- R. v. Smale M.T.C. Tyndale Prov. J. 95

nal Law (3rd ed.) at pp. 542-46. I am aware, however, that this principle’s potential application as a defence to criminal culpability has not yet been decided by this Court, and would appear to be the subject of some debate in the courts below. Since a resolution of this issue is not strictly necessary to decide this case, I would prefer to leave this issue for another day. 34 Judge Fradsham gave a useful overview of the appellate decisions dealing with “de minimis” in R. v. Tan, 2010 ABPC 163 (Alta. Prov. Ct.), at paragraphs 46-50. 35 In R. v. Chapman, 2008 ONCJ 552 (Ont. C.J.), Justice Harris, in paragraphs 6-33, reviewed a number of cases which had considered the de minimis doctrine, and then concluded: 42 Neither the Supreme Court of Canada nor the Ontario Court of Appeal has conclusively ruled that the maxim de minimis non curat lex applies to criminal law in Canada. I do not propose to decide that issue here. Nor do I need to. Even if the maxim may be applied in appropriate cases, this is not one of those cases. 36 In R. v. Hnatiuk, 2000 ABQB 314 (Alta. Q.B.), Madam Justice Viet found: 33 Although the Criminal Code has not been amended in the way suggested by various authors, judges and the Canadian Bar Associa- tion to codify the defence of de minimis, this defence applies in Ca- nadian criminal law: McBurney. The limits of the defence, however, are relatively narrow and cannot be extended beyond the limits as suggested by Professor Stuart in his reference to the Model Penal Code: Section 2.12 De Minimis Infractions The Court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the defendant’s conduct: (1) was within a customary license or tolerance, neither expressly negatived by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense; or (2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or 96 CRIMINAL REPORTS 27 C.R. (7th)

(3) presents such other extenuations that it cannot reasonably be regarded as envisaged by the legislature in forbidding the offense. 37 The Hnatiuk (supra) case was distinguished by the Manitoba Court of Appeal in R. v. Nicol, 2002 MBCA 151 (Man. C.A.), on other grounds, but has not been overturned by any appellate courts. While the portion of the Hnatiuk (supra) judgment reproduced above is strictly speaking obiter dicta, it is a strong statement of the law, and is, if not binding on me, highly persuasive. 38 I find, therefore, that the defence of “de minimis” is applicable to Canadian criminal law. That conclusion is shared by the majority of reported judgments, for example: R. v. Murdock (2003), 176 C.C.C. (3d) 232 (Ont. C.A.), R. v. L. (R.H.), [2008] N.S.J. No. 468 (N.S. C.A.), R. v. Lepage, [1989] S.J. No. 579 (Sask. Q.B.), R. v. Kiemele, 2011 ABPC 325 (Alta. Prov. Ct.), R. v. McLeod, supra, R. v. Harrison, 1992 CarswellAlta 961 (Alta. Prov. Ct.), R. v. Thornton, 2012 BCPC 360 (B.C. Prov. Ct.), R. v. Kolebaba, 2011 BCPC 1 (B.C. Prov. Ct.), R. v. Dejong, 2005 BCPC 546 (B.C. Prov. Ct.), R. v. Merasty, [2002] S.J. No. 586 (Sask. Prov. Ct.), R. v. Murphy, 2010 NBPC 40 (N.B. Prov. Ct.). 39 Judge Faulkner, in R. v. Elek, [1994] Y.J. No. 31 (Y.T. Terr. Ct.) explained the rational of the de minimis principle: 18. Minimal assaults are committed every hour of the day. People jostle on elevators, buses and in subways — not always entirely accidentally. One person touches another to gain the latter’s attention. A man, uninvited, slaps his friend on the back to congratulate him. There are innumerable cases and circumstances in which physical contacts occur during day-to-day interactions between people. When these contacts are non-consensual, they technically constitute an assault. Leaving aside the argument that anyone attempting to board a subway in rush hour is implicitly consenting to the affray, one obvious reason that most of these cases do not end up in court is because of their minor nature. De minimis non curat lex: the law does not concern itself with trifles. 40 After a review of cases, Judge Faulkner concluded: 24. In my view, much of the difficulty in applying the de minimis test is the usual translation: “The law does not concern itself with trifles”. I think a much better way to approach the task is to ask whether or not the conduct of the accused is sufficiently serious that it should properly be stigmatized as criminal. I recognize that this is hardly more precise than speaking of the conduct as being trifling or R. v. Smale M.T.C. Tyndale Prov. J. 97

trivial, but I think that the words trifling and trivial can convey a pejorative message to the complainant which may not be warranted. An accused may be acquitted on de minimis grounds even though what happened is not considered by the court to be a “trifle”, but is simply considered to be conduct that, while unacceptable and wrong, did not constitute criminal misconduct.

Conclusion 41 C.C. clearly did not consider Mr. Smale’s contact with her to have been trifling or trivial. However, the contact was made in the course of day-to-day interaction between co-workers, was momentary in duration, and caused no physical injuries. While I am prepared to find that Mr. Smale’s touching of C.C.’s hips was ill-advised and not acceptable to C.C., I conclude that it did not constitute criminal misconduct. I find, therefore, that the Crown has not proved the actus reus of assault beyond a reasonable doubt, and I find Mr. Smale not guilty of assault. Accused acquitted. 98 CRIMINAL REPORTS 27 C.R. (7th)

[Indexed as: R. v. Kalleo] Her Majesty the Queen v. Dina Kalleo Newfoundland and Labrador Provincial Court Docket: Nain 1715A00135 John L. Joy Prov. J. Judgment: February 22, 2016 Trial procedure –––– Conduct of trial — General principles –––– Trial judge having authority to determine whether accused to be in restraints in courtroom — Blanket policy inappropriate. The accused was brought into court in handcuffs and leg shackles, in accordance with a policy adopted by the RCMP with regard to all in-custody accused. The Court on its own motion provided all parties with the opportunity to make submissions on the practice. Held: The policy was found to be improper. An accused is presumptively entitled to appear in court free of any restraint. If there is a concern about a particular accused an application can be brought to the trial judge concerning restraints for that particular accused, but restraints in the courtroom should be the exception rather than the rule. A blanket policy of restraints on all accused is not lawful, and the unnecessary use of shackles or handcuffs is a civil assault which might give rise to an award in damages.

Comment

In this decision, Judge Joy has taken aim against a policy of the RCMP in Labra- dor to bring all in-custody accused to court not only in leg shackles but in handcuffs as well. The policy appeared to be prompted, at least in the largely Aborig- inal community of Nain where this decision originated, by the fact that court hearings occurred in a banquet room on the second floor of a hotel, a location with no structural security measures built-in. Nonetheless Judge Joy concluded that this did not override the inherent dignity of those accused of offences, nor their right to be presumed innocent or to participate fully in their trials. He concluded that although police have a responsibility to provide security within courtrooms, nonetheless [119]. . .A policy of restraints on all in-custody accused cannot be used to replace a plan to provide appropriate levels of security. The authorities must base their security plan on the assumption that in- custody accused may appear in court without restraints. R. v. Kalleo 99

Criticizing the adoption of a blanket policy which was imposed on all accused across the board based on the theoretical possibility of some risk from some accused at some point, Judge Joy observed: [41] Trial courts in this province, and from what I have read about the courts across Canada, have fallen so far away from the principles that lie at the foundation of our justice system against prisoner restraint in court, that we daily tolerate the unreasonable restraint of prisoners without any assessment of their individual risk of escape or violence. Police and sheriff’s officers receive training about assessing risk, but that training cannot receive practical application when they treat every prisoner as a high risk individual under a blanket restraint policy. [42] We have, for at least the entire time I have been a provincial court judge, accepted the use of leg shackles on all prisoners. That has become the norm, but it is contrary to law. . .The law clearly states that the issue of restraint of prisoners in the courtroom is within the exclusive jurisdiction of the presiding judge and is subject to his or her discretion. We have slipped into this practice of universal leg shackles on in-custody accused without legal authority, or even argument of any kind. He also expressed qualms about recommendations for court security published through the Canadian Bar Association, expressing the concern that it goes too far in its desire to reduce risk: [107] We live every day with reasonable risks when we drive on public roads, or walk on snow and ice, or receive medical treatment. At some point reality, the assessment of reasonable risk, and, dare I say it, courage must form a part of our free and democratic society and judicial independence. Courts daily compel accused, witnesses and others to come and remain in our courthouses. Judges, lawyers and court staff are members of the general public. We must assess our risks and manage our fear just like everyone else. The goal must be to live in a free and democratic society. Every unreasonable restraint we embrace for ourselves, or impose on others, diminishes us and them. Judge Joy considers in this case various previous decisions on the issue of prisoner restraints, and articulates at the end of his decision a number of governing principles. These included: (1) every accused, whether in custody or not, has the right to appear in court free of any restraint. . . (4) if the police or sheriff’s officers have a particular concern about an individual in-custody accused, then they must advise the Crown and the Crown, if they conclude that the officers’ concerns have 100 CRIMINAL REPORTS 27 C.R. (7th)

merit, may apply for a hearing on the use of restraints with that particular in-custody accused. . . (8) restraints in the courtroom should be the exception not the rule. . . (9) judges must decide the issue of using restraints on in-custody accused on a case-by-case basis [and]. . . (13) it is illogical for police or sheriff’s officers to use leg shackles, handcuffs or other restraints in court on in-custody accused for whom the Crown is recommending release, including the young, the elderly or the frail, unless there are specific grounds to believe that each individual person will be violent or attempt escape. Such an approach brings the administration of justice into disrepute. Steve Coughlan Schulich School of Law, Dalhousie University Cases considered by John L. Joy Prov. J.: Gordon v. Denison (1895), 22 O.A.R. 315 (Ont. C.A.) — referred to Hamilton v. Massie (1889), 18 O.R. 585 (Ont. C.A.) — referred to Kennedy v. Cardwell (1973), 487 F.2d 101 (U.S. C.A. 6th Cir.) — considered R. v. Arbour (1990), 4 C.R.R. (2d) 369, 1990 CarswellOnt 892, [1990] O.J. No. 1353 (Ont. C.A.) — referred to R. v. Bajada (2001), 2001 CarswellOnt 1854, [2001] O.J. No. 2026 (Ont. S.C.J.) — considered R. v. Brown (1998), 1998 CarswellOnt 4762, [1998] O.J. No. 4682, 164 C.R.R. (2d) 1 (Ont. Gen. Div.) — referred to R. v. C. (J.A.) (1998), 1998 CarswellOnt 5204, [1998] O.J. No. 5575 (Ont. Gen. Div.) — referred to R. v. D. (D.) (2009), 2009 ONCJ 772, 2009 CarswellOnt 9744, [2009] O.J. No. 6360 (Ont. C.J.) — followed R. v. Dalton (1999), 1999 CarswellNfld 80, 174 Nfld. & P.E.I.R. 247, 533 A.P.R. 247, [1999] N.J. No. 86 (Nfld. T.D.) — considered R. v. F. (D.) (2005), 2005 CarswellOnt 2125, [2005] O.J. No. 2148, 197 C.C.C. (3d) 365 (Ont. C.A.) — considered R. v. Faid (1981), [1981] 5 W.W.R. 349, 30 A.R. 616, 61 C.C.C. (2d) 28, 1981 CarswellAlta 277, [1981] A.J. No. 923, 1981 ABCA 139 (Alta. C.A.) — referred to R. v. Fortuin (2015), 2015 ONCJ 116, 2015 CarswellOnt 2979, [2015] O.J. No. 1040 (Ont. C.J.) — considered R. v. Glaister (2004), 2004 CarswellOnt 106, [2004] O.J. No. 112, [2004] O.T.C. 34 (Ont. S.C.J.) — referred to R. v. Hall (2002), 2002 SCC 64, 2002 CarswellOnt 3259, 2002 CarswellOnt 3260, [2002] S.C.J. No. 65, 4 C.R. (6th) 197, 217 D.L.R. (4th) 536, 167 R. v. Kalleo 101

C.C.C. (3d) 449, 293 N.R. 239, 165 O.A.C. 319, 97 C.R.R. (2d) 189, [2002] 3 S.C.R. 309, REJB 2002-34457 (S.C.C.) — considered R. v. Jones (1996), 49 C.R. (4th) 136, 107 C.C.C. (3d) 517, 29 O.R. (3d) 294, 5 O.T.C. 81, 1996 CarswellOnt 1818, [1996] O.J. No. 1771 (Ont. Gen. Div.) — considered R. v. Levogiannis (1993), 25 C.R. (4th) 325, 160 N.R. 371, 85 C.C.C. (3d) 327, 67 O.A.C. 321, [1993] 4 S.C.R. 475, 18 C.R.R. (2d) 242, 16 O.R. (3d) 384 (note), 1993 CarswellOnt 131, 1993 CarswellOnt 996, EYB 1993-67541, [1993] S.C.J. No. 70 (S.C.C.) — referred to R. v. McArthur (1996), 11 O.T.C. 215, 1996 CarswellOnt 5034, [1996] O.J. No. 2974 (Ont. Gen. Div.) — referred to R. v. McNeill (1996), 108 C.C.C. (3d) 364, 49 C.R. (4th) 131, 91 O.A.C. 363, 29 O.R. (3d) 641, 1996 CarswellOnt 2688, [1996] O.J. No. 2488 (Ont. C.A.) — considered R. v. Smith (1996), 1996 CarswellOnt 3910, [1996] O.J. No. 3671 (Ont. Prov. Div.) — referred to R. v. T. (G.J.) (2000), 2000 CarswellNfld 379, 200 Nfld. & P.E.I.R. 41, 603 A.P.R. 41, [2000] N.J. No. 379 (Nfld. T.D.) — considered R. v. V. (D.) (2007), 2007 ONCJ 468, 2007 CarswellOnt 6642, 52 C.R. (6th) 63, 226 C.C.C. (3d) 394, 164 C.R.R. (2d) 324 (Ont. C.J.) — followed R. v. Wills (2006), 2006 CarswellOnt 9452, [2006] O.J. No. 3662 (Ont. S.C.J.) — referred to R. v. Zwezdaryk (October 7, 2004), Clark J., [2004] O.J. No. 6137 (Ont. S.C.J.) — referred to 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 to s. 7 — considered s. 9 — considered s. 11(b) — considered s. 11(d) — considered s. 12 — considered s. 15 — considered Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 Generally — referred to Royal Newfoundland Constabulary Act, 1992, S.N. 1992, c. R-17 Generally — referred to 102 CRIMINAL REPORTS 27 C.R. (7th)

Rules considered: Rules of the Provincial Court of Newfoundland and Labrador in Criminal Pro- ceedings, SI/2004-134 R. 14 — considered

RULING with respect to defence counsel objection to accused appearing in court in handcuffs and leg shackles.

Erin Matthews, for Her Majesty the Queen Peter Chaffey, for Accused

John L. Joy Prov. J.: Introduction. 1 On May 5, 2015, during the Nain circuit, the Royal Canadian Mounted Police brought Dina Kalleo to court in handcuffs and leg shackles. She was in custody as a result of a recent arrest, and a judge had denied her bail. The R.C.M.P. brought her to court for a trial on an assault charge against her common law partner, Toby Pijogge, and a couple of breaches of court ordes. 2 Peter Chaffey, Defence counsel, objected to his client appearing in court in handcuffs and leg shackles. The court held a hearing on this issue, heard the Crown evidence of Sergeant Jonathan Kenny, considered the arguments of the Crown Attorney and the Defence Counsel, and ordered the removal of the handcuffs and leg shackles. The court provided oral reasons, but also reserved the right to draft written reasons for the decision. 3 The court, on May 5 and 6, 2015, heard the trial during which the complainant, Toby Pijogge, proved to be a reluctant witness with a very poor memory. He was unable to recall the facts giving rise to the incident, even with the benefit of reading immediately prior to the trial the statement he provided to the police a short time following the alleged incident. The court dismissed the charges against Dina Kalleo on May 6, 2015.

Background. 4 The R.C.M.P. only began the practice of bringing all in-custody accused to court in Nain in handcuffs and leg shackles in February of 2015. Prior to that date, from at least August 2006, the R.C.M.P. almost always brought in-custody accused to court in leg shackles only. They followed R. v. Kalleo John L. Joy Prov. J. 103

that practice in Happy Valley-Goose Bay and also during other court cir- cuits on the Labrador coast. 5 During the February, 2015, Nain circuit, the R.C.M.P. brought two male prisoners, one of whom was a youth, to court not only in leg shackles but also in handcuffs. The court questioned this practice, but neither the Crown Attorney nor Defence Counsel made any submission on the issue of restraint of in-custody accused in court. The court on its own motion provided the Crown Attorney, Defence Counsel and the R.C.M.P. the opportunity to make submissions on this point in one of these cases during a hearing for that purpose in the June 2015 court circuit. 6 During the May circuit the R.C.M.P. continued this new practice of restraint of prisoners. Defence Counsel objected to the restraint of Dina Kalleo and, in a separate case, the restraint of Thomas Semigak.

Facts.

Crown Position. (a) Introduction. 7 The Crown called only Sergeant Jonathan Kenny to give evidence in support of its application to keep Dina Kalleo in handcuffs and leg shackles throughout her trial. The witness provided only institutional reasons for this new policy, and indeed stated that this practice was always R.C.M.P. policy.

(b) R.C.M.P. Officers in Nain. 8 Sgt. Kenny testified that the Nain R.C.M.P. detachment only had seven members of the force resident in the community. Four were actually in the community on the day of the hearing. The rest were out of the community for various purposes such as annual, medical, educational and other forms of leave. Generally only two R.C.M.P. officers are on duty in Nain (a community of approximately 1,500 persons) at any time as a result of the need for normal rest periods between shifts, emotional, mental and physical health and wellness issues, and normal employer- employee working conditions. Sometimes only one R.C.M.P. is on duty in Nain. 104 CRIMINAL REPORTS 27 C.R. (7th)

(c) Inadequate Courtroom. 9 The Nain circuit court sits regularly in the banquet room on the second floor above the bar in the Atsanik Lodge, the community’s only hotel. Public access is through a steep staircase from the porch and foyer outside the bar to the banquet room. The room itself is a large one of approximately 1,000 square feet with windows on three sides. It has two bathrooms, one at either end of the main room. Crown and Defence counsel usually use these bathroom spaces to meet with clients, witnesses and one another. Sometimes lawyers use the hotel dining room or the adjacent corridors for these purposes. Along the back wall is a door leading to a wooden fire escape. The door is behind the area where the judge usually sits. The fire escape leads to a space at ground level outside the hotel with a sturdy wooden fence approximately 10 feet high that does not have a gate in it. The hotel uses this space for a secure smoking area outside its bar. 10 Sgt. Kenny testified that, in his opinion, the Nain courtroom was not a proper or secure courtroom. No holding cells were available to the R.C.M.P. for in-custody accused. The court did not travel with any sheriff’s officers. The R.C.M.P. is only able to provide one R.C.M.P. officer for court. No secure exits exist in the courtroom.

(d) R.C.M.P. Policy. 11 Sgt. Kenny also referred to an unwritten policy in place prior to 2011 requiring R.C.M.P. officers to keep all prisoners in handcuffs and shackles from the time they begin to take in-custody accused from the detachment prison cells to the Nain courtroom, during court proceedings and until they return in-custody accused to their prison cells in the detachment. 12 He swore, as well, that following one or more attempted escapes from a Labrador court, the R.C.M.P. put this policy in writing in 2011. He did not produce a copy of the policy and gave no undertaking to provide a copy to counsel or the court. 13 The court noted the fact that there has never been an escape attempt from a courtroom in Labrador from at least 2006 to the time of the hearing. The court knew of only three disruptive or violent incidents in or anywhere near a courtroom to the time of the hearing, namely: (1) an in- custody male accused who escaped, not from the courtroom, but from a window in a legal aid office or interview room outside the courtroom in Wabush; (2) an in-custody male accused who escaped from R.C.M.P. R. v. Kalleo John L. Joy Prov. J. 105

officers outside the Happy Valley-Goose Bay courthouse, who was re- captured in or near the Churchill River in short order; and (3) an in-custody female accused who threw a water glass against a wall in the Nain courtroom when I made a decision requiring her to remain in custody, when she had hoped to marry her partner who was the complainant for one of her charges. 14 Since the hearing of this application, we have had one recent incident in Happy Valley-Goose Bay of an in-custody accused prisoner, who was in leg shackles, becoming upset with the proceeding and moving out of the docket. The sheriff’s officers restrained him and brought him to the holding cells. He has appeared in restraints in all subsequent court appearances. 15 It is interesting to note that two of these incidents occurred not in but near the most secure courtrooms in Labrador, namely those in Wabush and in Happy Valley-Goose Bay. 16 Sgt. Kenny repeated that the R.C.M.P. policy was that all prisoners must be in handcuffs and leg shackles when officers transport them from the R.C.M.P. detachment to court, during court, and until they returned the prisoners to their cells in the detachment. Inspector Patrick Cahill of Happy Valley-Goose Bay, who was responsible for Labrador in 2011, brought in this written policy. The Crown and Sgt. Kenny were either unable or chose not to enter that written policy into evidence. The witness noted that the position of Inspector was, at the time of the hearing, vacant but that Staff Sergeant Gerald Webb was the officer-in-charge for Labrador. The witness necessarily implied that Staff Sergeant Webb agreed with the policy, and that Sgt. Kenny was under orders to enforce that policy. Sgt. Kenny, by his evidence and manner, clearly agreed with the policy.

(e) Dina Kalleo. 17 Sgt. Kenny testified that Dina Kalleo was a prisoner with numerous convictions for assault, assaulting police officers and resisting arrest. Neither the Crown nor the witness provided Ms. Kalleo’s record as an exhibit for this hearing. 18 The officer was, however, unable to testify whether Ms. Kalleo, during her present time in custody (which has been for a considerable period of time), had attempted to escape custody, assaulted a police officer, was abusive to police officers or prison authorities, or had threatened a police officer or anyone associated with her continuing custody. 106 CRIMINAL REPORTS 27 C.R. (7th)

19 Sgt. Kenny is a man of considerable weight and strength, and has a significant height advantage over Ms. Kalleo, who was no more than 120 to 125 pounds. He testified that he had seen, during his time with the R.C.M.P., a number of very small people put up a pretty good fight.

Contrary Position. (a) Blanket or Institutional Policy — No Risk Assessment. 20 Defence counsel called no evidence, but argued that this R.C.M.P. policy was a blanket or institutional policy, and had nothing to do with any kind of risk assessment of Dina Kalleo. 21 Defence counsel pointed to what he called the absurdity of the R.C.M.P. policy where the Crown and Defence, prior to an in-custody accused court appearance, had agreed to release conditions for an in-custody accused. According to the R.C.M.P. policy, one or more police officers would transport that individual in handcuffs and leg shackles from the detachment to the courtroom, and keep them in that condition during the court appearance and until they had signed the release document. They would also keep an in-custody accused, in other cases, in handcuffs and leg shackles during any court appearance, bail hearing, trial or sentencing hearing, and then transport them back to the R.C.M.P. detachment cells.

(b) No Personal Record of Violence. 22 There is no evidence of Ms. Kalleo’s violence. There is no criminal record in evidence. There is only a general statement from Sgt. Kenny that she presents a risk of violence.

(c) R.C.M.P. Policy Not in Line with Practice. 23 We also have an alleged 2011 written policy, which is not in evidence before me, yet with no sign of any R.C.M.P. officer attempting to enforce that policy until February of 2015. Sgt. Kenny testified he has been in Nain since June 26, 2014, and has been enforcing that policy since that time. Kenny’s statement is simply not true. The R.C.M.P. have not attempted to enforce such a policy of using leg shackles and handcuffs from 2006 to 2015 in Nain, Hopedale, Natuashish, Rigolet, Postville, Makkovik, Cartwright, Port Hope Simpson or L’Anse-au-Clair until their attempt to do so in Nain in February 2015. Leg restraints have been the norm, except on very rare occasions. A review of the legal cases on this R. v. Kalleo John L. Joy Prov. J. 107

point suggests that even leg restraints are unreasonable as a mandatory policy decision.

(d) Trial. 24 The R.C.M.P. brought Dina Kalleo to court for her trial. The handcuffs and leg shackles prevented her from fully participating in her defence. More critically, they undermined the presumption of innocence, offended her human dignity and humiliated her in the face of the court. 25 In circumstances like these there is a right for an in-custody accused to have immediate access to the Canadian Charter of Rights and Free- doms. The notion that a person bears the constraint of Rule 14 of the Rules of the Provincial Court of Newfoundland and Labrador requiring an in-custody accused to give significant notice to the Crown of a constitutional argument is questionable. Such a rule must, necessarily, be un- constitutional, under such circumstances. Otherwise, the Charter and access to justice remain illusions. If the Defence raises a constitutional issue such as this as it occurs, and the judge considers it necessary to provide the Crown with some time to respond, then the length of that notice should be left in the discretion of the judge, not subject to an in- flexible rule that effectively denies the in-custody accused of any practical or reasonable Charter remedy. 26 The Charter is a fundamental and foundational document in Canadian law and must be available, in circumstances like the present case, immediately. We have had sufficient time since the Charter came into existence, and sufficient legal and judicial experience with it, for Crown and Defence to be aware of its impact on in-custody situations such as this, and to argue its applicability including appropriate remedies immediately without notice. 27 This R.C.M.P. policy, on its face, offends the Canadian Charter of Rights and Freedoms in any number of ways including section 7 concerning the right to life, liberty and security of the person and the right not to be deprived of those rights except in accordance with the principles of fundamental justice. Even if Dina Kalleo may have been lawfully in custody, she has the right to sufficient freedom at her trial to preserve the presumption of innocence and her human dignity, and to conduct her defence in a meaningful manner, unless the Crown and the R.C.M.P. can demonstrate that she is a real and substantial security risk. We perhaps should view a specific right, such as section 7 Charter, as a bundle of rights. For example, Ms. Kalleo may be lawfully in custody, but that can- 108 CRIMINAL REPORTS 27 C.R. (7th)

not be an absolute constraint in light of circumstances such as her rights to a fair trial, to participate in her defence and to her human dignity. 28 Section 9 (the right not to be arbitrarily detained or imprisoned), section 11(d) (presumption of innocence), section 12 (the right not to be subjected to any cruel and unusual treatment or punishment), and section 15 (the right to equality before and under the law without discrimination based on race) may also be in issue. In the latter case, the application of this policy appears to be limited only to Nain, a substantially Inuit community, and Dina Kalleo is Inuk and a beneficiary of the Nunatsiavut Government. Almost every person subjected to this R.C.M.P. policy in Nain is Inuit.

Law. 29 There are a series of cases that address the issue of restraint of in- custody accused in court. They include: R. v. D. (D.), 2009 ONCJ 772 (Ont. C.J.) (M.A. Cuthbertson, J.P.) R. v. McNeill [1996 CarswellOnt 2688 (Ont. C.A.)], 1996 CanLII 812 R. v. Jones [1996 CarswellOnt 1818 (Ont. Gen. Div.)], 1996 CanLII 8006 (Then, J.) R. v. V. (D.), 2007 ONCJ 468 (Ont. C.J.) (CanLII) (Cuthbertson, J.P.) R. v. Fortuin, 2015 ONCJ 116 (Ont. C.J.) (CanLII) (P.A. Schreck, J.) 30 Every one of them adopts the principle that restraint of prisoners in a courtroom is within the sole jurisdiction of the presiding judge. The most extensive consideration of the issue is found in the R. v. D. (D.) case. The judge summarized at least 10 principles concerning restraint of prisoners at paragraph 152 of his decision: (a) The defendant was entitled to maintain her dignity in the context of the presumption of innocence unless there was a valid reason for the use of restraints on her. (b) In balancing the need for safety of all persons in the courtroom and the prevention of escape against the need to maintain the dignity of the defendant in the context of the presumption of innocence, the views and expertise of the security personnel must be given considerable weight. Deference to the opinions of the security personnel is inappropriate. The issue of restraint is a matter of judicial determination. R. v. Kalleo John L. Joy Prov. J. 109

(c) This Court has no authority over security measures outside the courtroom but can provide guiding directions on security measures which may impact directly on the ability of the court to receive evidence and decide the issue of liberty and on the propriety and dignity of the proceeding when the court is in session. (d) There is no onus or burden of proof on either party. A practical approach considering the context of the case and evidence before the court will assist the court in using its discretion in determining security issues. (e) When the issue of restraints is raised, be it by the Crown, defence or the Court itself, a hearing is required. (f) Restraints in a courtroom should be the exception not the rule. (g) The use of restraints must be decided on a case-by-case basis. (h) The unnecessary use of handcuffs constitutes a civil assault. (i) This Court can set its own guidelines on procedures surrounding the defendant being brought into the courtroom in restraints. (j) Provincial statutes, including the Ontario Police Services Act do not supercede the Court’s authority to determine the issue of restraints. 31 The facts of R. v. D. (D.) are instructive. D.D. was a 15-year-old young person. She appeared in court on the day in question for a bail hearing arising from a charge that she had broken her curfew at her group home. She had a criminal record consisting of 8 findings of guilt, all of which resulted in relatively minor sentences. She was in the care of the Ontario equivalent of our Manager of Child, Youth and Family Ser- vices. She turned herself in. The Crown was prepared to release her on an undertaking. The sheriff’s officers brought her into court in handcuffs, and the judge on his own motion required a hearing on the issue of why the authorities used restraints on the prisoner. 32 Essential background to the R. v. D. (D.) case was the fact the Police Services Board issued a policy memorandum in 2004 requiring police officers to assess each in-custody accused, and recognizing that the judge controlled restraint of prisoners in court. Early in 2006 a prisoner in bail court climbed a plexiglass wall around the prisoner’s box and tried to escape. Three days later the Superintendent of the Police Services Board issued a directive requiring restraint of all prisoners in bail court, thereby treating all prisoners as having a high risk of attempting escape or violence. The Police Services Board in July 2008 issued a blanket security 110 CRIMINAL REPORTS 27 C.R. (7th)

memorandum entitled “Unit Directive on Restraints and Prisoner Escort” along similar lines. 33 One of the first cases Cuthbertson cited in the D. (D.) decision was that of Then, J. in R. v. Jones, 1996 CanLII 8006 (ON SC) who in turn cited the reasoning of Leggatt, L.J. at page 896 in R. v. Cambridge Jus- tices, Ex parte Peacock (1992), 156 J.P.R. 895 (Q.B.) who traced the legal principles back to 1726 Hawkins, Hawk P.C. ch. 28, s. 1: That every person at the time of his arraignment, ought to be used with all the humanity and gentleness which is consistent with the nature of the thing, and under no other terror or uneasiness than what proceeds from a sense of his guilt, and the misfortune of his present circumstances; and therefore ought not to be brought to the bar in a contumelious manner; as with his hands tied together, or any other mark or ignominy and reproach; nor even with fetters on his feet, unless there be some danger of a rescous or escape. 34 Leggatt, L.J. continued this line of reasoning on page 902: They [Magistrates], not the gaoler, must decide whether a prisoner should be handcuffed in court. No prisoner should be handcuffed in court unless there are reasonable grounds for the apprehending that he will be violent or will attempt to escape. If an application is made that a prisoner should be handcuffed, the magistrate must entertain it. 35 Then, J. in Jones went on to quote at page 12 of his decision Justice William Miller in the American case Kennedy v. Cardwell, 487 F.2d 101 (U.S. C.A. 6th Cir. 1973): The rule that a prisoner brought into court for trial is entitled to appear free from bonds and shackles is an important component of a fair and impartial trial. And shackles should never be permitted except to prevent the escape of the accused, to protect everyone in the courtroom, and to maintain order during the trial. This historical development of the rule that a defendant should be unfettered while standing trial, except in extraordinary instances, has been traced from Virgil and the Bible through the Magna Carta and the great English legal scholars — Bracton, Coke and Blackstone — into our jurisprudence. 36 Cuthbertson in the D. (D.) case did not quote the American case, but referred only to American authority generally. 37 The law goes so far as to declare that a prisoner should not automatically appear in court in restraints even for a hearing on the restraint issue. If the court is aware that restraint of a particular prisoner is an issue, then a judge may canvass Crown and Defence counsel prior to the entry of the R. v. Kalleo John L. Joy Prov. J. 111

prisoner concerning the propriety of the prisoner appearing in restraints for the hearing on the restraint issue. Cuthbertson noted that method works in other jurisdictions and takes very little time (See the D. (D.) case at paragraph 150). 38 Such reasoning necessarily leads to the conclusion that a prisoner should presumptively appear in court without restraint for all court appearances including bail hearings, preliminary inquiries and trials. Re- straint of prisoners requires the Crown to make a specific application. 39 Cuthbertson also noted that he, on five different occasions including the D. (D.) case, had raised the restraint of prisoner issue. The Crown said each time that it supported the police restraint policy. Duty counsel declined to take a position. No accused had asked for the removal of restraints. The judge concluded this was probably the case for two reasons: (1) duty counsel did not advise the accused of his right to request the removal of restraints; and (2) a hearing on restraint of the prisoner would take time away from that available for the conduct of the bail hearing or other proceeding. 40 Peter Chaffey, counsel for Dina Kalleo, deserves a commendation for advising his client about the restraint issue, taking instructions from her and advocating on her behalf in this prisoner restraint hearing. 41 Trial courts in this province, and from what I have read about the courts across Canada, have fallen so far away from the principles that lie at the foundation of our justice system against prisoner restraint in court, that we daily tolerate the unreasonable restraint of prisoners without any assessment of their individual risk of escape or violence. Police and sheriff’s officers receive training about assessing risk, but that training cannot receive practical application when they treat every prisoner as a high risk individual under a blanket restraint policy. 42 We have, for at least the entire time I have been a provincial court judge, accepted the use of leg shackles on all prisoners. That has become the norm, but it is contrary to law. I have always found it to be inconsistent with our general legal principles, but I have had no objections from in-custody accused or their counsel. My examination of the law in this case and my prior knowledge of the D. (D.) case remind me that the presiding judge may raise the issue of prisoner restraint on his or her own motion. The law clearly states that the issue of restraint of prisoners in the courtroom is within the exclusive jurisdiction of the presiding judge and is subject to his or her discretion. We have slipped into this practice 112 CRIMINAL REPORTS 27 C.R. (7th)

of universal leg shackles on in-custody accused without legal authority, or even argument of any kind. 43 Now, the idea that all prisoners should be able to come into court without any restraint whatsoever will appear to many to be foolhardy and irresponsible. 44 Risk is something that we measure by experience. If there have been no attempts to escape custody or to behave violently in court, then there is no evidence of risk to the public, complainants, witnesses and court officials. If there is one attempt to escape custody in 10 years, that fact is not a justification for restraint of all prisoners. It is, however, a cogent piece of evidence with respect to that prisoner and no other. Even if there is evidence of a pattern among a significant number of in-custody accused attempting to escape custody, there is no justification for an institutional response on restraint of in-custody accused unless the Crown, and police and sheriff’s officers have evidence to present concerning the in-custody accused who is before the court in each case. 45 R. v. Jones concerned two in-custody accused whom the police charged with manslaughter and robbery. They were in court for a preliminary inquiry. A number of issues at the preliminary inquiry became the subject of an application for prohibition. One of those was restraint of the accused. I have already quoted extensively from this case. Then, J. found that once defence counsel raised the issue of restraint of the prisoners the judge was required to conduct a hearing on the issue. In this case, he did not do so even when the Crown offered to lead evidence on the issue. The judge refused to conduct a hearing and relied entirely on the decisions of the custodial officers. 46 Justice Then decided a writ of mandamus on the issue of prisoner restraint was the appropriate remedy on this issue. That case, however, involved other issues and resulted in the issue of a writ of prohibition to prevent the continuation of the breach of the judge’s jurisdiction because the judge had refused to permit one of the accused’s counsel to cross- examine Crown witnesses, and the judge had a conversation with the Crown without Defence counsel present giving rise to an reasonable ap- prehension of bias. Justice Then sent the case back to the original court and directed that another judge hear the case. 47 The D. (D.) case relied on the Ontario Court of Appeal decision in R. v. McNeill in 1996. Defence counsel in the McNeill case, at a preliminary hearing, asked the court to order the removal of handcuffs from his client in the courtroom, but took no issue with the use of leg shackles because R. v. Kalleo John L. Joy Prov. J. 113

the prisoner’s dock hid them from view. The Crown objected to the application, and the judge refused to grant the request and declined to give reasons. The judge hearing the first level of appeal upheld the preliminary inquiry judge’s decision, but the Ontario Court of Appeal, extensively quoting Justice Then in R. v. Jones, decided the case in the favour of the in-custody accused in a short five-page judgment. 48 Defence Counsel also referred me to R. v. V. (D.), another decision of Justice of the Peace Cuthbertson that he decided in 2007, a couple of years prior to the D. (D.) case. The issue of restraint of prisoners had clearly been a long-standing issue in his court. In this case the police brought a young person facing a criminal charge into bail court in handcuffs and leg shackles, despite Cuthbertson’s prior communication that “no defendant should be brought into the court room in restraints without my prior permission.” The police removed all restraints once the young person was in the court room, “but in full visibility of the people in the body of the court.” The authorities had previously followed the practice of removing the restraints in the ante-chamber adjacent to the court room prior to bringing any prisoner, youth or adult, into court, unless the court had granted the police or Crown permission to bring a defendant into the court room in restraints. 49 This case is particularly interesting in light of the categories of analysis this justice of the peace discusses in his reasons. He begins with a section on Charter issues and divides it into three sections: (A) The right to reasonable bail — recommended releases, young persons, the frail & elderly; (B) The presumption of innocence; and (C) Ontario Court of Ap- peal Case Law. 50 Cuthbertson noted that persons ranging as young as 12 years old and as old as senior citizens appear in bail court. Almost all are entitled to bail under the Charter section 11(b), and, indeed, the Crown usually rec- ommends their release, necessarily implying they are not a risk to public safety. It makes no sense that these individuals, whatever their age, appear in court in restraints. Such a blanket policy cannot help but bring the administration of justice into disrepute. 51 The presumption of innocence, as Justice Iacobucci wrote in R. v. Hall, 2002 SCC 64 (S.C.C.) (CanLII), (2002), 167 C.C.C. (3d) 449 (S.C.C.) at page 468, is the “golden thread” that runs through the crimi- 114 CRIMINAL REPORTS 27 C.R. (7th)

nal justice system, and, as Cuthbertson said at paragraph 11 in R. v. V. (D.): This eloquent description provides us with a powerful visual representation. His statement confirms that a defendant has the Charter right to firmly grasp that golden thread, from his first appearance in bail court, through every subsequent appearance and until a trier of fact decides the matter. 52 Cuthbertson went on in paragraph 12 of his decision to quote Justice Iacobucci in R. v. Hall on the role of the judiciary concerning defendants’ rights, first of all, at paragraph 50 of the Supreme Court of Canada decision: The duty to protect individual rights lies at the core of the judiciary’s role, a role which takes on increased significance in the criminal law where the vast resources of the state and very often the weight of public opinion are stacked against the individual accused. 53 He then quoted paragraph 128 of Iacobucci’s reasons: Finally, I emphasize that the role of this Court, and indeed of every court in our country, to staunchly uphold constitutional standards is of particular importance when the public mood is one which encourages increased punishment of those accused of criminal acts and where mounting pressure is placed on the liberty interest of these individuals. Courts must be bulwarks against the tides of public opinion that threaten to invade these cherished values. Although this may well cost courts popularity in some quarters, that can hardly justify a failure to uphold fundamental freedoms and liberty. 54 Cuthbertson at paragraphs 13 and 14 concluded that he had an obligation to “uphold constitutional standards by maintaining the golden thread of the presumption of innocence” (paragraph 13) An appearance in bail court often represents the first time since arrest, a defendant is observed by his or her family, friends, the community and the media. It is a first and crucial opportunity for a defendant to project himself or herself holding that ‘golden thread,’ for all to see. If that thread is broken, the presumption of innocence may be lost. This golden thread also runs through our case law as various courts have considered the issue of restraints and the presumption of innocence. (paragraph 14) 55 The section on Ontario Court of Appeal cases is principally a discussion of the R. v. McNeill case that I have already described. At paragraph 19 Cuthbertson also referred to the Ontario Court of Appeal decision in R. v. F. (D.) [2005 CarswellOnt 2125 (Ont. C.A.)], 2005 CanLII 18707 R. v. Kalleo John L. Joy Prov. J. 115

that simply articulated the necessary implication of R. v. McNeill that the reasoning in McNeill applied to all courts where in-custody accused appeared and not simply to preliminary inquiries and trials. He summarized at paragraph 20 four basic principles arising from these cases, which principles I paraphrase as follows: (1) Police and sheriff’s officers should bring prisoners into a court room free of all restraints unless they have reasonable grounds to believe the prisoner will be violent or will attempt to escape; (2) If the Crown, the police or sheriff’s officers intend to present an in-custody accused in court in restraints, then the Crown must make an application requesting an order authorizing those restraints. The court must then conduct a hearing; (3) Police legislation and regulations do not override the authority of the court; and (4) A judicial decision is required to determine the issue. 56 In my view, the case of R. v. D. (D.) provides further elaboration of these principles. I have quoted earlier in this decision 10 points that include and expand on the above four principles. I have also touched on ancillary issues in my complete discussion of the R. v. D. (D.) case. 57 Cuthbertson goes further in the R. v. V. (D.) case and has five additional sections on: (1) What is the role of the Crown concerning restraints in a courtroom?; (2) What is the role of the police concerning restraints in a courtroom?; (3) Is a blanket policy to handcuff all prisoners lawful?; (4) Possible Charter implications of a blanket policy to handcuff all prisoners; and (5) Can a court act on its own motion? 58 He concludes on the first question at paragraph 24 that the onus rests on the Crown to apply to have a prisoner appear in court in restraints of any sort. It does not rest on the prisoner to apply to have the restraints removed. The police and sheriff’s officers have no authority to force the court to accept the presentation of a prisoner in restraints. They do, however, have the responsibility for security in the court house and the courtroom. Their role in the courtroom is “to have a security plan in place based on the assumption that restraints are not necessary.” (paragraph 27) 59 A blanket policy to have all prisoners appear in court in restraints is not lawful. In addition to cases already cited, Cuthbertson referred in this section of his decision to R. v. Smith, [1996] O.J. No. 3671 (Ont. Prov. Div.) (Weagant, J.), R. v. McArthur, [1996] O.J. No. 2974 (Ont. Gen. 116 CRIMINAL REPORTS 27 C.R. (7th)

Div.) (LaForme, J.), and R. v. Brown, [1998] O.J. No. 4682 (Ont. Gen. Div.) (Trafford, J.). 60 While Cuthbertson found that he, acting as a justice of the peace in a bail court, could not consider Charter applications, he did find that he could act on his own motion to trigger a hearing on the restraint of an in- custody accused. He cited in support of his conclusion the additional cases of R. v. C. (J.A.), [1998] O.J. No. 5575 (Ont. Gen. Div.) (Howden, J.), R. v. Smith, [1996] O.J. No. 3671 (Ont. Prov. Div.), R. v. Arbour, [1990] O.J. No. 1353 (Ont. C.A.), and R. v. Glaister, [2004] O.J. No. 112 (Ont. S.C.J.) (Wright, J.). In the present case, Defence counsel objected to the presentation in the court room of his female client in handcuffs and leg shackles. I find, nevertheless, that I have the authority to raise the issue on my own motion. 61 Cuthbertson ended his judgment with a section on whether a judge could act on his own motion, in the event the Crown brings an in-custody accused into a courtroom in restraints without first applying to the court. Justice Weagant in R. v. Smith, the Ontario Court of Appeal in R. v. Ar- bour, and Justice Wright of the Superior Court of Justice in R. v. Glaister each provide reasoning in support of that proposition (see paragraphs 38 to 44 in V. (D.)). Wright went so far as to state that a judge has that authority, and indeed responsibility, even in the event of the accused expressly, or by necessary implication, waiving a Charter right. Cuthbert- son at paragraph 42 quotes Wright: Because of the need to protect social values of superordinate importance and to protect the certainty and integrity of the judicial process, the courts are loath to accept that a person has consented to the breach of his or her Charter rights or waived a Charter right. The court may intervene on its own motion even in the face of such a waiver. (Korponay v. AG, 1982 CanLII 12 (SCC) 62 The R. v. V. (D.) decision ends at paragraph 45 with a list of principles similar to that in R. v. D. (D.), but they bear repeating here: The presumption of innocence begins when a defendant first appears before any court, including a pre-trial court. It cannot be given any less weight before a bail court than before any subsequent court, otherwise a Charter breach may result. The Crown’s obligation is to apply to the court if it wishes to have any defendant brought into a court room in restraints. It must show reasonable grounds on a balance of probabilities why the restraints are necessary. R. v. Kalleo John L. Joy Prov. J. 117

The responsibility must not be shifted to the defendant to show cause why restraints should be removed. It always rests with the Crown to show why they are required, at any time in the court room. A blanket policy of restraints on all defendants in a bail court is not lawful. If a government action is inconsistent with the Charter, then s. 24 provides remedies. Every application for restraints must be decided on its merits. It is incongruous to suggest that those defendants for whom the Crown is recommending release including the young, the elderly and the frail (or for those young persons for whom there is no possibility of detention at bail) should be restrained unless there are grounds to believe that the person will be violent or attempt escape. Such an approach may bring the administration of justice into disrepute. A court may act on its own motion. This may be necessary to protect a defendant’s constitutional rights. Provincial statutes, including the Police Services Act, do not super- sede a court’s authority to determine the issue of restraints. The Police Service is responsible to provide sufficient resources to ensure security in every courtroom, so as to protect all justice system participants and the public. It is not appropriate for the Police to in- sist that a defendant be brought into the court room in restraints and then remove them inside the court room or that all defendants be restrained in bail court. A policy of restraints on all defendants cannot be used to replace a plan to provide appropriate levels of security. Such a plan must be based on the assumption that defendants may appear without restraints. The backing of a blanket policy of handcuffs by the Crown lends support to a policy which in not in concert with the law. 63 Defence Counsel also referred to R. v. Fortuin, 2015 ONCJ 116 (Ont. C.J.) (CanLII). Justice Schreck in six paragraphs confirms, yet again, that it is against the law for police or sheriff’s officers to present in-custody accused in restraints of any kind, whether leg shackles, handcuffs, or other restraint. He cites in further support of his position the Ontario Court of Appeal in McNeill, and adds references to: R. v. Wills, [2006] O.J. No. 3662 (Ont. S.C.J.) at para. 45; R. v. Zwezdaryk, [2004] O.J. No. 6137 (Ont. S.C.J.) at para. 14; and R. v. Jones, 1996 CanLII 8006 at para. 28-31 118 CRIMINAL REPORTS 27 C.R. (7th)

Consequence of Routine Use of Prisoners’ Leg Shackles and Handcuffs. 64 What are we afraid of that causes us to embrace the routine use of unreasonable restraint of in-custody accused in courtrooms? 65 It seems to me that we degrade our appreciation for the value of fundamental rights and freedoms when we embrace the notion of zero tolerance for any possibility of escape from, or violence in, court. Zero tolerance, in this context, means that in order to eliminate any possibility of anyone being violent in court or attempting to escape, all prisoners must appear in court in restraints. Such a policy leads inevitably to the unreasonable restraint of all in-custody accused in courtrooms under the dubi- ous mantra: Something bad only has to happen once. 66 The concept of zero tolerance in the context of in-custody accused in courtrooms means that if we have had even one incident in, say, 10 years of a prisoner attempting to escape custody or making a threat or committing an assault in or near the court, then that justifies a blanket policy to restrain all in-custody accused in court. Such a conclusion, in my view, is unacceptable and results in the surrender of fundamental rights and freedoms enshrined in the Charter of Rights and Freedoms. 67 The most unreasonable and questionable cases are where R.C.M.P. habitually bring youth as young as 12 years old, women, and old men into court in leg shackles. It is even more absurd when these are in-custody accused whom the Crown and Defence have agreed to release on undertakings or recognizances. There is a logical and human disconnect in these cases when we have a blanket policy on in-custody accused appearing in court in, at a minimum, leg shackles. 68 I have already demonstrated that the standard blanket approach of police or sheriff officers presenting prisoners in court in restraints is contrary to law. 69 As I discuss at length later in these reasons, such a surrender to unreasonable fear not only imperils the dignity of the in-custody accused and undermines the presumption of innocence, it also undermines the dignity and humanity of judges, Crown Attorneys, Defence Counsel, court staff, sheriffs, police officers, others in the justice system, and the public at large. 70 The use of restraints in a courtroom for in-custody accused must have a foundation in actual evidence of a real and substantial threat that a particular accused presents in the circumstances of that appearance on that R. v. Kalleo John L. Joy Prov. J. 119

day. The first people in a position to assess that risk are the guards at the Labrador Correctional Centre or the lock-up in the R.C.M.P. detachment in Happy Valley-Goose Bay or at a court circuit location. The next level of responsibility for assessment is the R.C.M.P. officers who transport the prisoners to court, and the final assessment comes from the sheriff’s officers in Happy Valley-Goose Bay or R.C.M.P. officers on the Labra- dor coast, who bring the prisoner into court. 71 If an R.C.M.P. or a sheriff’s officer, as a result of his training and experience, concludes that a particular prisoner presents a particular risk of escape or violence, then he or she has the duty to raise the matter with the Crown, who may make an application to have the accused appear in restraints in the courtroom. Otherwise, the presumption is that an in-custody accused should appear in court without restraint of any kind.

(a) Arrest and Prison — Police and Judicial Violence against Persons. 72 Liberty of the individual is the most highly-valued fundamental right for any person, whether citizen, landed immigrant, visitor or refugee. The common law and statute law initially, and since Confederation in this province the Canadian Criminal Code, defined crimes against the person and property. These laws provide police with powers of arrest and detention subject to a right of reasonable bail depending on the circumstances. If a person fails to obtain bail, then they are held in custody pending the outcome of their trials. Imprisonment in the event of conviction is a possibility if a judge finds that jail is warranted. 73 When the police arrest a person and keep them in custody, this denial of liberty comes with the loss of a whole range of rights. One of those is the possibility of restraint beyond the ordinary confinement in a jail cell or a secure range area in a penitentiary. Another part of that loss of liberty concerns the use of restraints such as handcuffs and leg shackles at the time of arrest and when the prison officials, the police or sheriff’s officers transport prisoners back and forth to court. 74 Justice Wright in the case R. v. Bajada, [2001] O.J. No. 2026 (Ont. S.C.J.) wrote at paragraph 31: Even though escort officers may generally bring a restrained prisoner into a Non-Trial Courtroom without a prior authorization from the Court this does not mean that they should do so or can do so in every case. Any imposition of restraints is the imposition of force which may have to be justified after the fact. The unnecessary use of handcuffs constitutes a civil assault for which damages may be 120 CRIMINAL REPORTS 27 C.R. (7th)

sought. Hamilton v. Massie (1889), 18 O.R. 585 (Ont. C.A.), Gordon v. Denison (1895), 22 O.A.R. 315 (Ont. C.A.). As with every imposition of force the restraints must be reasonable in the circumstances. Police officers tend to think solely in terms of security. They must be trained to weigh the needs of security against the other fundamental values mentioned above. (my emphasis)

(a) Damages for Civil Assault. 75 It may well take the initiative of a courageous counsel to start actions for civil assault in individual or class action lawsuits on behalf of in- custody accused to bring home to police, sheriff and Crown management that the blanket use of handcuffs and leg shackles is contrary to law and answerable in civil damages. 76 Once damage judgments accumulate at the rate of, say for argument sake, $500.00 per in-custody accused per court appearance, then authorities may take notice of the fundamental nature of the illegality of routine use of unreasonable restraint for all in-custody accused in courtrooms. 77 I am not talking here about some unimportant or ephemeral issue. This is an issue of fundamental justice, and has lasting and permanent effect on the human rights and dignity of in-custody accused, and the presumption of innocence.

(b) Other Restrictive Practices Affecting In-Custody Accused in Courtrooms. 78 In-custody accused also bear other restrictive practices that, singly or cumulatively, undermine human dignity, the presumption of innocence, and other Charter rights. Prison and police authorities frequently deny in-custody accused the use of belts, shoelaces and other clothing items for court appearances. Some prison authorities are even contemplating bringing accused to court in orange jumpsuits. They control prisoners’ access to personal hygiene facilities, medical, psychiatric, pastoral and dental services. They control their meals, and access to visitors including family members and legal counsel. They control how they transport in- custody accused to and from court for appearances, bail hearings, preliminary inquiries, trials and sentencing hearings. 79 What they do not control, however, is how in-custody accused appear in courtrooms. The efforts of the authorities to use handcuffs and leg shackles on in-custody accused in courtrooms has never been, is not now, nor should it ever be within the authority of prison, police and sher- R. v. Kalleo John L. Joy Prov. J. 121

iff’s officers. If there are circumstances where the authorities believe a particular in-custody accused is a real and substantial risk to public safety or that a real and substantial risk exists of his or her escape, then the Crown has a right to a hearing on the issue. 80 When we add all of these features to the feature that an in-custody accused appears in court in the criminal dock, we are face-to-face with the question of whether or not all of these features together have seriously impaired the presumption of innocence and undermined the minimal human dignity that any person appearing in court has the right to enjoy. 81 Justice Dymond in R. v. T. (G.J.) [2000 CarswellNfld 379 (Nfld. T.D.)], 2000 CanLII 28390 recognized this fact and made some accom- modation in the Grand Bank courtroom during a jury trial. He ordered the removal of the criminal dock, and substituted a table and chair in close proximity to the accused’s counsel. Dymond, J. stated at paragraph 12: This issue really deals with the security within the courtroom. The criminal docket is more like a cage raised up in height and it is not in this day and age really appropriate as it singles out one person sitting higher than most other people in the courtroom. This has a tendency to draw attention to the person sitting in the box. 82 In the case of R. v. Dalton [1999 CarswellNfld 80 (Nfld. T.D.)], 1998 No. G. 135Justice Halley permitted Mr. Dalton to sit with his counsel during his trial. Justice Dymond referred to this case at paragraph 8 in R. v. Turner. 83 A number of cases have held that the appearance of any accused, whether in-custody or not, in the criminal dock is not a Charter breach. The law is clear, however, that the seating of an accused person in the criminal dock or with his or her counsel is solely within the discretion of the presiding judge. Some of these cases include: R. v. Levogiannis [1993 CarswellOnt 131 (S.C.C.)], 1993 CanLII 47 at page 13 R. v. Faid, 1981 ABCA 139 (Alta. C.A.) (CanLII), para. 51-54 84 Some legal scholars have called for the abolition of the criminal dock altogether. Lionel Rosen, “The Dock — Should It Be Abolished?” The Modern Law Review, Vol. 29, May 1966, at p. 289 122 CRIMINAL REPORTS 27 C.R. (7th)

85 This issue most frequently comes up in jury trials, where the classic position of the criminal dock, the jury box, the witness box, counsel tables and the judge’s bench are difficult to justify from a functional point of view. It is an architectural nightmare, despite the long tradition of its use. The practice that counsel are side on to the jury and with their backs to the accused in the criminal dock is a very clumsy arrangement, often placing the accused in the position where they are unable to hear clearly what witnesses, counsel, or the judge for that matter, are saying. The jury often sees the witness in the witness box with the backs of one or more counsel obstructing their view. 86 The public, of course, have a right to attend any court proceeding that is not confidential in nature. They are in the worst position. They are the farthest away from all speakers whether judges, lawyers or witnesses. They have a view of the prisoner’s back and the backs of all counsel. They regularly have difficulty hearing what judges, lawyers and witnesses say. 87 The provincial court does not encounter the types of problems that are particular to jury trials, but the triangle of two or more counsel facing the judge with the accused in the criminal dock behind counsel with a fine view of the backs of legal counsel presents its own challenges. 88 I find that the usual way we conduct court circuit on the Labrador coast is instructive of a more functional approach. The counsel tables are perpendicular to the judge’s table, usually with the Crown to the right of the judge and the Defence to the left, although there is no rule one way or the other. Accused often sit with their counsel, and witnesses sit facing the judge at a table partially closing the square or rectangle. When there is no witness, accused sometimes sit facing the judge, again partially closing the square or rectangle. 89 We used to have witnesses sit on either the corner between the judge and Defence counsel or alternatively between the judge and Crown counsel, but victim services workers advised the court that witnesses felt more comfortable sitting facing the judge at a table that partially closed the square or rectangle. This still leaves the public at least partially blocked from the participants. We have tried moving the chairs for the public closer to the speakers, but invariably members of the public move the chairs to the farthest position available away from the judge, counsel, accused and the testifying witness. 90 The architecture or interior design of courtrooms are critical features in any criminal proceeding, whether fixed in a formal courthouse or im- R. v. Kalleo John L. Joy Prov. J. 123

provised on the Labrador coast. They form yet another circumstance with the potential to undermine human dignity, the presumption of innocence, and the right to make full answer and defence. 91 The most important of all these features, however, remains the routine use of a blanket policy of unreasonable restraint of in-custody accused using leg shackles, handcuffs, and other devices.

(c) Aboriginal Views of Jail and Restraint. 92 Many Aboriginal cultures traditionally viewed the use of restraints and jail as unusual punishment, particularly for any period of time. One example of a study that explores Aboriginal law and justice is Julius Lips, “Naskapi Law: (Lake St. John and Lake Mistassini Bands) Law and Order in a Hunting Society, Transactions of the American Philo- sophical Society, Vol. 37, No. 4 (1947), pp. 379-491. It is one of the few anthropological studies of Aboriginal law for the Ungava or Labrador Peninsula, or for that matter in Canada as a whole. He states that imprisonment sentences were unknown in Innu culture. 93 Dina Kalleo is not Innu. She is an Inuk. Traditional Inuit culture as well had no concept of jail or restraint except in very limited circumstances for very short periods of time. Paukuutit, the National Inuit women’s organization, provided some guidance on this point in its 2006 publication The Inuit Way: A Guide to Inuit Culture. The logistics of maintaining and operating jails in Labrador also assured that this form of punishment was traditionally not an option for Aboriginals and settlers alike well into the 20th century.

(d) Intensification of Alienation through Delay. 94 Institutional delay through the holding of bail hearings or other proceedings in in-custody accused situations, for whatever reasons, often 7 to 10 days after the arrest date, and through further delays in trials or sentencing hearings, intensifies the alienation in-custody accused endure. Sometimes there are no judges or courtrooms available, sometimes Crown counsel have too many cases to manage, but most often Defence counsel is not available or ready to proceed, again because they have large caseloads and insufficient time to prepare.

(e) The Perpetrator’s Walk and In-Court Arrests and Restraint. 95 Media and the public have rightly called into question police use of unwarranted use of restraints in the arrest, confinement and presentation 124 CRIMINAL REPORTS 27 C.R. (7th)

of in-custody accused in court in restraints. On March 15, 2015, Michael Enright of the Canadian Broadcasting Corporation’s Sunday Edition radio program read an essay about Canadian police forces importing Amer- ican techniques of arrest and restraint aimed principally at shaming the accused, destroying the dignity that all citizens have the reason to expect, and undermining the presumption of innocence. The major benefit for the police is the illusion that such action visibly demonstrates they are doing their job to keep the public safe. It is more a public relations exercise than one of ensuring public safety. 96 Enright highlighted three incidents that supported his opinion: (1) Ot- tawa police officers in February 2015 handcuffing of a nine-year-old au- tistic boy; (2) Brampton police officers in February 2015 handcuffing in court a young female lawyer and marching her out of the crowded courthouse to a marked police car; and (3) Quebec police officers in May of 2014 handcuffing three men charged in the Lac Megantic rail tragedy and marching them through a crowd of onlookers and media into the courthouse. The police did this in the instance of one of these accused who had volunteered to turn himself in to police prior to his court appearance. “Instead, he was arrested at his home by an armed SWAT team.” This was an instance of pure theatre, and had nothing to do with security or safety of the public. 97 Clayton Ruby, the legal scholar and well-respected Defence counsel, commented about the arrest of the young female lawyer in Brampton, Peel County: “Peel Police’s conduct was not an act of policing. It was an act of thuggery.” 98 We see far too often police or sheriff’s officers leading male and female youth between the ages of 12 and 18 into court in leg shackles and leaving them in that state throughout their court appearance, whether that is a bail hearing, plea appearance, preliminary hearing, trial or sentencing hearing. Sometimes they also add handcuffs, as they did with the in-custody youth in Nain in February that I have referred to in the Background section of this decision. 99 Judges have no control over what methods of restraint the police or sheriff’s officers use in the transportation of in-custody accused to court or in other situations, but once those prisoners come through the door of the courtroom that is a different story. 100 The police and sheriff’s officers should, nevertheless, be mindful of the law of restraint and the moral responsibility that all citizens have to address in the proper treatment of other human beings with whom they R. v. Kalleo John L. Joy Prov. J. 125

come in contact. Police duty concerns public safety, but most certainly does not involve humiliating in-custody accused, undermining human dignity or diminishing the presumption of innocence. There may well be legal remedies for in-custody accused in these other out-of-court situations (See Hamilton v. Massie and Gordon v. Denison), but this decision is limited to the restraint of in-custody accused in court, and specifically Dina Kalleo.

(f) Appreciation of R.C.M.P. and Sheriff Officers Contribution. 101 It is not my intention to criticize the individual police officers who have been involved in this case. I accept that they are following the policy and procedures that their superiors have put in place concerning in- custody accused in court. We have been fortunate to have excellent R.C.M.P. court liaison officers in Happy Valley-Goose Bay and at the various Labrador coastal communities where we hold circuit court. We have also had the benefit of sheriff’s officers in Happy Valley-Goose Bay who have contributed greatly to the security and safety of the courthouse. They have also, through their humanity and good will, contributed mightily to the morale of the court. They have not, so far, come with us on circuit, and we certainly hope that they will at some time in the future. 102 The court’s obligation is to do whatever is necessary to comply with the law on the presentation of in-custody accused in court on circuit or in Happy Valley-Goose Bay to preserve human dignity and the presumption of innocence. The appearance of all in-custody accused in leg shackles and handcuffs is not an option in a free and democratic society.

(g) Court Security in Canada. 103 I have considered the Canadian Judges’ Forum, Court Security in Canada: A Report with Checklists for Judges and Court Administrators, published in June 2010 through the Canadian Bar Association. It contains no information, evidence, or law to contradict the law as I have expressed it in this decision. The focus of the report is more generally about court security. Many of the report’s anecdotal comments concern litigants and members of the general public who are not in custody and who have presented a danger to the safety of judges and court staff. 104 When the report does address in-custody accused or offenders in custody it recognizes the delicate balance between court security and the 126 CRIMINAL REPORTS 27 C.R. (7th)

presumption of innocence. Two examples in this report are found at page 5 and 6: The public cannot be excluded from courthouses and courtrooms except in exceptional circumstances. Furthermore, in criminal trials the over-zealous guarding of an accused can be found to undermine the presumption of innocence. Defence counsel may argue that height- ened security is prejudicial and is negatively affecting the accused’s right to a fair trial. (p. 5) There is a delicate balance to be maintained between the safety of all participants involved in the justice process and the principles of fair- ness and openness intrinsic to our judicial system. (p. 6) 105 The focus of this report was, of course, court security. The report does not refer to the body of law on the right of in-custody accused and offenders in custody to appear in court without restraints unless circumstances specific to them warrant physical restraints of one kind or another. There is, on the other hand, nothing in the report to suggest that a blanket application of handcuffs and leg shackles is legal or even desirable. 106 I find aspects of the report, however, are disturbing. The suggestion that judges should use separate entrances in courthouses, sequester themselves entirely from the public except in the courtroom, not use the same parking lots as the public, not share the same hallways, only have contact with staff in their chambers or in court, and endure other confinement supposedly in the interests of a free and democratic society and an independent judiciary is frankly unwarranted. I refuse to live in fear that someone will drive their vehicle through the front door of the courthouse in a violent rage, as the report described actually happened at a Prince Edward Island courthouse. The risk of that happening is just too low to warrant some of the measures some sources recommend. 107 We live every day with reasonable risks when we drive on public roads, or walk on snow and ice, or receive medical treatment. At some point reality, the assessment of reasonable risk, and, dare I say it, courage must form a part of our free and democratic society and judicial independence. Courts daily compel accused, witnesses and others to come and remain in our courthouses. Judges, lawyers and court staff are members of the general public. We must assess our risks and manage our fear just like everyone else. The goal must be to live in a free and democratic society. Every unreasonable restraint we embrace for ourselves, or impose on others, diminishes us and them. R. v. Kalleo John L. Joy Prov. J. 127

(h) Culture of Fear. 108 One of the most famous epigrams of the 20th century was one from President Franklin Delano Roosevelt during his inaugural speech in 1933 after defeating Herbert Hoover in the 1932 presidential election. It is contained in the following lines: So, first of all, let me assert my firm belief that the only thing we have to fear is — fear itself — nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance. (my emphasis) 109 After enduring World War I, the Great Depression, and World War II, we find ourselves in the second decade of the 21st century in a world where the devastation of war has steadily declined, where the violent crime rate has dropped like a stone, and where, despite media reports, people are safer and more secure than ever before. Steven Pinker has made this point elegantly and convincingly in his book The Better Angels of Our Nature: Why Violence Has Declined (Toronto: Viking, 2011). 110 One of the most recent and insightful books on the role of risk and fear in the justice system is Bernadette McSherry’s book, Managing Fear: The Law and Ethics of Preventive Detention and Risk Assessment (New York: Routledge, 2014). She compares the law in Australia, New Zealand, the United States, Canada and the United Kingdom. The appearance of in-custody accused in court in leg shackles and handcuffs is a form of preventive detention. 111 The legal presumption is that all accused, whether in custody or not, should appear in court with the apparent dignity and self-respect of a free and innocent citizen without restraint of any kind, consistent with the golden thread running through our criminal justice system — the presumption of innocence. The likelihood of an in-custody accused committing an act of violence or attempting to escape from a courtroom is very low. Those facts ought equally to generate no fear, or a fear easily reduced to a negligible quantity through the presence of police or sheriff’s officers without resort to the pre-emptive restraints of leg shackles and handcuffs. 112 McSherry at the beginning of Chapter 2 “Theories of Risk and Pre- caution” tells her readers about the “Bushranging Act” in New South Wales, Australia in 1830. This legislation permitted anyone to arrest any person reasonably suspected of being “a transported felon unlawfully at large.” The arrested person bore the burden of proving “to the reasonable 128 CRIMINAL REPORTS 27 C.R. (7th)

satisfaction” of the Justice that he or she was not a felon. If unsuccessful, the arrested person bore the possibility of indefinite detention. 113 The government asked the police magistrates in 1834 whether the legislature should renew this Act. Most of the police magistrates recommended continuing the Act, but Justice William Westbrooke Burton of the New South Wales Supreme Court “condemned the Act as being re- pugnant to the laws of England.” He was particularly concerned that the legislation reversed the burden of proof, namely requiring the accused to prove his innocence rather than the Crown bearing the burden of proving its case. The Act was a clear violation of the presumption of innocence, the golden thread of our criminal justice system. The legislature, nevertheless, renewed the legislation 10 times over the next two decades. 114 An ironic twist in this story was that Sir Frances Forbes, the first Chief Justice of New South Wales, while walking near his country home, was arrested in January of 1835 as a suspected bushranger. The person arresting him thought he gave a poor explanation of himself and his circumstances, and hauled him before the district constable, who discovered the mistake and released Forbes. Forbes, it should be noted, had also served with distinction as a Chief Justice of Newfoundland before his departure for Australia. The Australian newspaper on January 23, 1835, noted the Chief Justice’s reaction: “His Honour was however well satisfied even at his own expense, to be fully acquainted with the diligence and activity of the Mounted Police.” 115 While there is much to admire about Chief Justice Forbes both in Newfoundland and New South Wales, Australia, this incident, if true, was not his finest hour. Justice Burton got it right. 116 McSherry cites a number of other studies on fear and risk in her book including: F. Furedi, Culture of Fear: Risk Taking and the Morality of Low Ex- pectation (London: Continuum, 2002) F. Furedi, “Fear and Security: A Vulnerability-Led Policy Re- sponse,” 2008 Social Policy and Administration, 42(6): 645-661 D. Denney, Risk and Society (London: Sage, 2005) 117 I can provide no better ending to this discussion of the consequences of routine use of prisoners’ leg shackles and handcuffs that to repeat the words of President Roosevelt: “the only thing we have to fear is fear itself.” It is, in my view, worth emphasizing the balance of the sentence as well, where he describes fear as the “nameless, unreasoning, unjusti- R. v. Kalleo John L. Joy Prov. J. 129

fied terror which paralyzes needed efforts to convert retreat into advance.” 118 We should not, indeed we cannot, retreat into the false comfort of irrational and unnecessary security measures that not only humiliate and diminish in-custody accused, but also diminish, confine, and humiliate ourselves when we embrace “nameless, unreasoning, unjustified terror.” If there is a real and substantial risk from a particular in-custody accused, then it is for the police and sheriff’s officers and the Crown to present evidence of that risk in a court of law, and have a judge make a ruling.

Conclusion. 119 I will summarize the legal principles that apply to the use of handcuffs, leg shackles and other forms of restraint for in-custody accused in court: (1) every accused, whether in custody or not, has the right to appear in court free of any restraint; (2) the presiding judge, whether for a plea appearance, bail, preliminary inquiry, trial or sentencing hearing, has the discretion to decide whether an accused must appear in court in any form of restraint; (3) police and sheriff’s officers have the responsibility to provide security within courtrooms, but within applicable legal principles. A policy of restraints on all in-custody accused cannot be used to replace a plan to provide appropriate levels of security. The authorities must base their security plan on the assumption that in- custody accused may appear in court without restraints; (4) if the police or sheriff’s officers have a particular concern about an individual in-custody accused, then they must advise the Crown and the Crown, if they conclude that the officers’ concerns have merit, may apply for a hearing on the use of restraints with that particular in-custody accused; (5) judges should give considerable weight to the views and expertise of the R.C.M.P. and sheriff’s officers concerning particular in-custody accused, but deference to them is inappropriate. The issue of restraint in the courtroom is a matter for the judge to decide; (6) the court, the Crown or the Defence may raise the issue of restraint of in-custody accused; 130 CRIMINAL REPORTS 27 C.R. (7th)

(7) once the court, the Crown or the Defence raises the issue of restraint of in-custody accused, then the judge must conduct a hearing; (8) restraints in the courtroom should be the exception not the rule; (9) judges must decide the issue of using restraints on in-custody accused on a case-by-case basis; (10) the unnecessary or unreasonable use of leg shackles, handcuffs or other apparatus constitutes a civil assault; (11) the Royal Canadian Mounted Police Act, the Royal Newfoundland and Labrador Constabulary Act, 1992 and regulations do not su- persede the judge’s authority to determine the issue of restraints used on in-custody accused in court; (12) a blanket policy of restraints on all in-custody accused is not lawful; (13) it is illogical for police or sheriff’s officers to use leg shackles, handcuffs or other restraints in court on in-custody accused for whom the Crown is recommending release, including the young, the elderly or the frail, unless there are specific grounds to believe that each individual person will be violent or attempt escape. Such an approach brings the administration of justice into disrepute; (14) judges have the discretion to decide if an accused sits in the criminal dock, with Defence counsel, or elsewhere in the courtroom; and (15) lest there should be any doubt in this particular case, a blanket policy of presenting in-custody accused, such as Dina Kalleo, in leg shackles and handcuffs into court in Nain is illegal, may amount to a civil assault and give rise to an award of damages. She may also have other remedies under the Charter of Rights and Freedoms. Order accordingly. R. v. Parr 131

[Indexed as: R. v. Parr] Regina, Respondent and Kevin John Parr, Appellant British Columbia Court of Appeal Docket: Vancouver CA42562 2016 BCCA 99 Saunders, D. Smith, Fitch JJ.A. Heard: February 12, 2016 Judgment: March 7, 2016 Charter of Rights and Freedoms –––– Unreasonable search and seizure [s. 8] — Reasonable expectation of privacy –––– Implied license for police officer to knock on door to communicate with occupant — Trial judge reaching factual conclusion that officer approaching door only for purpose of communicating with occupant — Awareness of possibility of finding evidence not automatically taking action outside implied license — Section 8 not breached. The accused had been convicted of various marihuana related offences after a search warrant was executed at home. The search warrant was issued in part based on the smell of marihuana detected by a police officer who had gone to the accused’s residence. The trial judge concluded that the officer had gone to the residence in order to speak with an occupant, had not exceeded the implied license to approach, and therefore that the olfactory observations were not obtained in violation of the Charter. The accused appealed that finding. Held: The appeal was dismissed and the conviction was upheld. Police have an implied licence to approach the door of a residence to knock. Occupants of a home are deemed to have waived their reasonable expectation of privacy for defined purposes, which includes situations where the police knock for the sole purpose of facilitating communication with an occupant. In such circumstances, no search occurs because the entry does not intrude upon the occupant’s reasonable expectation of privacy. Here, the trial judge correctly articulated the rules governing the implied license to knock, and reached the conclusion that the officer had approached the door for the sole purpose of communicating with an occupant and had done nothing which acted outside of the implied license. Although the trial judge had twice referred to the officer’s “primary purpose”, this did not mean that the trial judge had implicitly found the officer to have an additional purpose. Rather, the trial judge was acknowledging that the officer was aware that he might find evidence, even if looking for that evidence was not his purpose. The law does not 132 CRIMINAL REPORTS 27 C.R. (7th)

hold that any time an officer is aware of the possibility of finding evidence, that officer will automatically fall outside the implied license to knock. Cases considered by Fitch J.A.: R. v. Evans (1996), 45 C.R. (4th) 210, 191 N.R. 327, 104 C.C.C. (3d) 23, 131 D.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.) — followed R. v. Semchuk (2012), 2012 BCCA 389, 2012 CarswellBC 2976, [2012] B.C.J. No. 2005, 328 B.C.A.C. 109, 558 W.A.C. 109 (B.C. C.A.) — referred to 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 s. 8 — considered s. 24(2) — considered Controlled Drugs and Substances Act, S.C. 1996, c. 19 s. 5(2) — considered s. 7(1) — considered Criminal Code, R.S.C. 1985, c. C-46 s. 86(2) — considered Mental Health Act, R.S.B.C. 1996, c. 288 Generally — referred to

APPEAL by accused from conviction for drug and firearm offences.

J.W. Sherren, for Appellant M. Namazi, W.P. Riley, Q.C., for Respondent

Fitch J.A.: A. Introduction 1 The central issue on this appeal concerns application of the implied invitation to knock principle addressed in R. v. Evans, [1996] 1 S.C.R. 8 (S.C.C.). 2 In Evans, the Court held that the police have an implied licence to approach the door of a residence to knock. Occupants of a home are deemed to have waived their reasonable expectation of privacy for defined purposes. Where the police knock for the sole purpose of facilitating communication with an occupant, they act within the scope of the implied invitation. In these circumstances, no constitutionally recognized search occurs because the entry does not intrude upon the occupant’s reasonable expectation of privacy. The waiver of privacy rights embodied in R. v. Parr Fitch J.A. 133

the implied invitation extends no further than is required to achieve this purpose. Where the conduct of the police goes beyond that which is permitted by the implied licence to knock, the conditions of that licence are breached and the police approach the dwelling as an intruder. 3 A critical component of the analysis required by Evans is, therefore, determination of the police officer’s purpose or intention when they enter upon private property and approach a person’s home to knock on their door. If the approach is motivated by an investigative purpose, the conduct exceeds the scope of the implied licence to knock principle and s. 8 of the Charter is engaged. 4 The appellant says the trial judge erred in his ruling on the voir dire in finding that information obtained by a police officer who entered upon his premises and knocked at his door (the smell of vegetative marihuana) was not obtained in a “search” given his finding that the officer did so with the “primary intention” of facilitating communication with an occupant of the premises. The appellant submits that the trial judge must necessarily have found that the officer was motivated, at least in part, by a secondary and ulterior investigative purpose. Applying the principles that emerge from Evans, the appellant says the trial judge made at least an implicit factual finding that takes the officer’s conduct outside the scope of the invitation to knock principle. He says that finding obliged the trial judge to conclude that information gained as a result of the entry was obtained in a warrantless search. 5 The Crown says the trial judge made an explicit finding of fact that the officer did not enter upon the appellant’s premises for the purpose of gathering evidence in furtherance of an ongoing investigation. The Crown submits, therefore, that the trial judge’s findings of fact are dis- positive of the appeal as the officer was acting within the scope of the invitation to knock principle. 6 The information obtained as a result of the entry (the smell of vegetative marihuana) was used in conjunction with pre-existing investigative information to obtain a search warrant. A large marihuana grow operation was discovered in the execution of that warrant. Accordingly, if the appellant demonstrates error in the trial judge’s application of Evans, additional issues arise including: (1) whether, following excision of the officer’s olfactory observations, the remaining grounds set out in the Infor- mation to Obtain (ITO) provide a sufficiently reliable basis upon which the warrant that could have issued; and (2) if s. 8 of the Charter was breached in relation to either the initial entry or subsequent execution of 134 CRIMINAL REPORTS 27 C.R. (7th)

the search warrant, whether admission of the evidence so obtained would bring the administration of justice into disrepute within the meaning of s. 24(2). 7 For the reasons that follow, I am of the view that the appeal should be dismissed. The trial judge made a clear factual finding that the officer who initially entered upon the appellant’s property did so for the limited purpose of facilitating communication with the occupants of the residence, and not to further an investigative aim. The appellant does not suggest that this factual finding is clearly unreasonable or the product of palpable and overriding error. Accordingly, there is no basis upon which this Court could properly interfere with the trial judge’s finding that the officer’s purpose in entering upon the property did not exceed the scope of the implied invitation to knock doctrine.

B. Background (a) Procedural History 8 On September 16, 2014, the appellant was convicted of producing marihuana and possessing marihuana for the purposes of trafficking contrary to ss. 7(1) and 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and four counts of improperly storing firearms contrary to s. 86(2) of the Criminal Code, R.S.C. 1985, c. C-46. 9 The marihuana and firearms were seized by the police in the execution of a search warrant on February 21, 2010 at the appellant’s residence in Hagensborg, British Columbia. 10 The search warrant was granted on the basis of an ITO that included, as grounds justifying issuance of the warrant, olfactory observations made by Constable Matthew Jenkins in the course of a warrantless entry upon the appellant’s property earlier in the day. 11 The appellant applied under s. 24(2) for exclusion of the evidence obtained through execution of the search warrant on grounds that the warrantless entry by Constable Jenkins constituted an infringement of his s. 8 rights and that once his unconstitutionally obtained observations were excised from the ITO, there was no basis upon which the warrant could have issued. 12 At the conclusion of a voir dire held in relation to this issue, the trial judge held that Constable Jenkins entered upon the appellant’s property for the purpose of facilitating communication with the occupants of the residence and not to further a criminal investigation. As such, his con- R. v. Parr Fitch J.A. 135

duct did not exceed the scope of the implied invitation to knock principle and his observations were not the product of a search that engaged the appellant’s s. 8 interests. The trial judge’s reasons for judgment on the voir dire are indexed at 2014 BCSC 2577. Those reasons are the subject of this appeal.

(b) Evidence on the Voir Dire 13 In the early morning hours of February 21, 2010, Constable Jenkins, who was working alone in the Bella Coola detachment of the RCMP, received a call for assistance from Constable Jason Nash of the Alexis 1 Creek detachment. Alexis Creek is a 3- /2 hour drive away from Bella Coola. 14 Constable Jenkins understood from his conversation with Constable Nash that the appellant had been arrested under the provisions of the Mental Health Act, R.S.B.C. 1996, c. 288, at the roadside near Alexis Creek. He was told the appellant was speaking incoherently about his fianc´ee. Constable Jenkins was advised that the appellant was being transported to the Williams Lake hospital for medical care. He was also advised that officers in the Alexis Creek detachment had impounded the appellant’s vehicle and were in possession of his dog. 15 Constable Jenkins testified that he was asked by Constable Nash to attend the appellant’s property in an effort to locate the appellant’s fian- c´ee to notify her of the appellant’s situation and see if arrangements could be made to retrieve his dog from the Alexis Creek detachment. 16 Constable Jenkins knew at the time of this call that the appellant was the subject of an ongoing marihuana grow operation investigation in the Bella Coola area. On one occasion, Constable Jenkins had provided assistance to a colleague in that investigation. 17 Constable Jenkins told Constable Nash about the Bella Coola investigation and asked if anything of potential significance to that investigation had been found when the appellant’s vehicle was searched. Constable Nash responded that the appellant’s vehicle had not been searched. Con- stable Jenkins advised Constable Nash of his understanding that grounds to search the vehicle arose either incidental to the appellant’s arrest or as a consequence of the police obligation to do an inventory of the contents of the vehicle when it was impounded. Constable Jenkins testified that he did not tell Constable Nash to search the car because the opportunity to do so had passed. 136 CRIMINAL REPORTS 27 C.R. (7th)

18 Constable Jenkins testified that in response to Constable Nash’s request he drove to the appellant’s residence at 12:52 a.m. No vehicles were present but the lights were on in the main building and in a secondary residence on the property. 19 Constable Jenkins walked straight to the front door of the house and knocked. A sign was posted on the front door saying, “Please use the side door”. Constable Jenkins heard a television or radio on inside the house. He could smell vegetative marihuana. As no one answered his knock at the front door, Constable Jenkins walked to the side door and knocked loudly. While waiting for a response at the side door, Constable Jenkins again detected the smell of vegetative marihuana. Constable Jen- kins noted a PVC pipe at the side of the house that appeared to be vent- ing air from the basement. 20 When no one answered the side door, Constable Jenkins proceeded to the secondary residence. He noted that plastic sheeting and blinds covered some of the windows of the secondary residence. The building did not appear to be occupied. He knocked on a sliding door of the secondary residence. When no one responded, he walked back to his vehicle and left. Constable Jenkins did not do a perimeter search of the property. 21 After leaving the property, Constable Jenkins stopped on the highway to see if he could smell marihuana upwind from the property, as this might suggest the marihuana smell was coming from somewhere other than the property. He was unable to detect the smell of marihuana upwind from this location. 22 When asked why he attended the appellant’s property that evening, Constable Jenkins said he did so to locate the appellant’s fianc´ee, notify her that the appellant was on his way to the Williams Lake hospital, and see if arrangements could be made for someone to take custody of the appellant’s dog. 23 Constable Jenkins acknowledged that when he went to the appellant’s property that evening he was aware that an investigation was ongoing and that, while he was on the property, he might make observations con- firming or dispelling suspicions that the appellant’s residence housed a marihuana grow operation. 24 Constable Jenkins testified he had no grounds to be on the property to investigate a potential marihuana grow operation and went straight to the doors to determine if anyone was home. When no one answered, he immediately left the property. He testified that he would not have gone to R. v. Parr Fitch J.A. 137

the appellant’s residence had he not received Constable Nash’s request for assistance. 25 Constable Jenkins said he did not think placing a phone call to the appellant’s residence was an appropriate way of dealing with Constable Nash’s request. First, he testified that he was delivering “bad medical news about somebody” that was best delivered in person. In addition, he testified that an unanswered call placed to the appellant’s residence in the early morning hours would not confirm that no one was home. 26 In cross-examination, it was put to Constable Jenkins that at least part of his motivation for attending the appellant’s property that evening was to further an ongoing criminal investigation. Constable Jenkins denied this suggestion: Q. And I’m going to suggest to you that when you took this call from Nash, the first thing that occurred to you was how it is that you could take advantage of this circumstance in order to advance your detachment’s investigative interests in determining whether or not there was a grow operation on Mr. Parr’s property, correct? A. I can’t really agree with that. I’m — I’m not sure what you’re — what you’re saying, to take advantage of it. I didn’t do anything different in this case as a result of the ongoing investigation. When I was asked to go, to go to the property, I knew immediately that when I go there, I may or may not encounter evidence of the existence or the lack of a grow-op. I didn’t do anything any different in this case. If I was going to any other house for the same purpose, I would have done it the exact same way. Q. Well, part of your purpose, I’ll suggest to you, in attending to that property when you did so was to attempt to acquire evidence against Mr. Parr in relation to suspected grow offences; do you agree with that? A. It wasn’t my purpose in going so no, I would disagree. Q. Well, I’ll suggest that it was some part of your purpose; do you agree with that? A. I was aware that it may happen. I’ll say again it was not my purpose for going there. Q. Now, you understand, however, that it would — that it could advantage you greatly to have that opportunity to enter upon Mr. Parr’s property in order to have an opportunity to closely examine it or inspect it, correct? 138 CRIMINAL REPORTS 27 C.R. (7th)

A. I was aware that when I went on the property, I may or may not gather evidence. I did not go on to the property to inspect it. I went to the doors that I would normally go to. While I was waiting for people to come to the door, I made observations. I didn’t do anything different in order to make observations. I wouldn’t say I inspected anything. 27 Constable Jenkins prepared notes summarizing the information he gathered that evening and left it for the lead investigator in a form that could be appended to an ITO. He took no further steps that evening or subsequently to locate the appellant’s next of kin. 28 Relying largely on his notes, Constable Nash was able to confirm that he spoke with Constable Jenkins that evening to see if someone in the Bella Coola detachment could locate the appellant’s next of kin to let them know where the appellant was and that the Alexis Creek detachment had the appellant’s dog. He confirmed that Constable Jenkins informed him of the ongoing investigation in Bella Coola and asked whether the appellant’s vehicle had been searched. He said Constable Jenkins asked him to attend the impound lot to “view” the vehicle because they were drafting an ITO and any information could be pertinent. Constable Nash, who was a junior officer, contacted his superior and confirmed he had no grounds to search the appellant’s vehicle. Although Constable Jenkins said he did not make this request, Constable Nash did conduct an exterior viewing of the appellant’s vehicle after the call. 29 Constable Nash testified he had no recollection of telling Constable Jenkins to attend at the appellant’s residence. He agreed, however, that it was possible he asked Constable Jenkins to go to the appellant’s residence. 30 Both Constable Jenkins and Constable Nash testified that it is not un- common for the police to attempt to contact next of kin in circumstances where an individual has been hospitalized following contact with the police.

C. Reasons for Judgment on the Voir Dire 31 As this appeal turns largely on the interpretation of the trial judge’s reasons for judgment on the voir dire, it is necessary to set out his factual findings in some detail and put them in the context of the reasons as a whole. 32 The trial judge preferred the evidence given by Constable Jenkins over the evidence given by Constable Nash as to the substance of the call R. v. Parr Fitch J.A. 139

between them the evening of February 21, 2010. He found Constable Jenkins’ evidence to be straightforward and the product of a clear recollection of the conversation. By contrast, Constable Nash had no specific memory of the call and was relying on his notes made two-and-a-half years earlier. He characterized Constable Nash’s evidence as “vague and uncertain”. 33 The trial judge summarized the evidence of Constable Jenkins on the central issue that arises in this appeal: [15] He testified that he would not have attended at the home absent Constable Nash, a neighbouring RCMP officer’s request for assistance. He indicated that it was his intention to determine if anyone was home, the fianc´ee perhaps, as per the request of Constable Nash. He testified that he did not attend to obtain grounds for a search warrant. 34 The trial judge accepted the evidence of Constable Jenkins that his assistance was being sought in notifying next of kin of a medical emergency and that it was reasonable for him to attend the appellant’s residence in an effort to make personal contact with someone. 35 The trial judge then set out the analytical framework developed in Evans: [22] The framework for determining whether olfactory observations constitute a search in violation of s. 8 of the Charter was established in the case of R. *v. Evans, [1996] 1 *S.C.R. 8. The first stage of the analysis requires determining whether the impugned police conduct qualifies as a search because it amounted to a violation of an individual’s reasonable expectation of privacy. If the conduct is found to constitute a search, then the court must assess whether the prima facie presumption that a warrantless search is unreasonable can be re- butted by showing that the search was authorized by law, the law authorizing the search was reasonable, and the search itself was conducted in a reasonable way. [23] In the case at bar, the ultimate issue is whether Constable Jen- kins’ initial entry onto Mr. Parr’s property amounted to a search thereby engaging Mr. Parr’s s. 8 rights. Justice Sopinka, for the majority in Evans, stated that only those investigatory techniques that infringe a person’s reasonable expectation of privacy constitute a search within the meaning of s. 8 of the Charter. This is at paragraph 11. However, occupants of a home are deemed to extend an implied invitation to knock on the door of their home to members of the public including police which constitutes a waiver of their reasonable 140 CRIMINAL REPORTS 27 C.R. (7th)

expectation of privacy in the approach to their home for the purposes of communication. [24] In describing the waiver, Sopinka J. wrote the following at paragraph 15: In my view, the implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. The “waiver” of privacy rights embodied in the implied invitation extends no further than is required to effect this purpose. As a result, only those activities that are reasonably associated with the purpose of communicating with the occupant are authorized by the “implied licence to knock”. Where the conduct of the police (or any member of the public) goes beyond that which is permitted by the implied licence to knock, the implied “conditions” of that licence have effectively been breached, and the person carrying out the unauthorized activity approaches the dwelling as an intruder. [25] Since the implied invitation to knock waives the reasonable expectation of privacy a person has in relation to their dwelling, state actions that fall within the waiver, i.e., approaching to facilitate communications simpliciter, are not considering searches for the purposes of s. 8, as no reasonable expectation of privacy has been violated. However, where state actions exceed the condition of the waiver or the implied invitation to knock, i.e., approaching to facilitate an investigation or collect incriminating evidence, the purpose of the approach exceeds the waiver and constitutes a warrantless search that is prima facie unreasonable. That is the court’s conclusion at paragraph 21. ... [27] Although the underlying facts of these cases and their ultimate conclusions vary, on the whole they represent a consistent body of evidence applying the invitation-to-knock principle as described in Evans such that any entry by state officials for the purposes other than to facilitate communications is deemed to be a warrantless search contrary to s. 8. [Emphasis added.] 36 The appellant takes no issue with the trial judge’s articulation of the Evans framework. In my view, the trial judge’s summary of the analysis required by Evans is unassailable. It follows that the trial judge was well aware that if Constable Jenkins entered upon the appellant’s property for R. v. Parr Fitch J.A. 141

the purpose of furthering a criminal investigation, any evidence obtained during the entry would properly be classified as the fruits of a search. 37 Having correctly identified the applicable framework, the trial judge proceeded to find that Constable Jenkins entered the property and knocked on the appellant’s door to communicate with an occupant about the appellant’s situation and not for the purpose of gathering evidence in connection with an ongoing criminal investigation: [29] Turning to the facts in this case. I find that Constable Jenkins’ entry onto the property was for the purpose of communicating with an occupant in relation to Mr. Parr’s medical emergency. It follows that Constable Jenkins’ entry fits within the conditions of the implied licence to knock. Further, given this lawful purpose, it follows that walking to the side of the door and knocking as directed by the sign on the front door and approaching the second building on the property that also had lights on inside and out were all activities undertaken by Constable Jenkins that were reasonably associated with the purposes of communicating with an occupant. ... [31] I note that at the first door approached by Constable Jenkins there was a sign directing those who were knocking to a second door...it cannot be said that in approaching the side door or the second building Constable Jenkins exceeded the condition of an implied waiver to knock given the fact that his purpose in undertaking these actions was to facilitate communication with an occupant. Thus, Constable Jenkins’ conduct, in my view, can be distinguished from the conduct of officers in cases like Evans and Sawicki where the court found the initial entry was merely an excuse to “carry their suspicions to the front door and get a sniff for a marihuana grow operation” as noted in Sawicki at paragraph 20. ... [37] In conclusion, pursuant to the Evans analysis, having found that the legitimate purpose of Constable Jenkins’ entry was to facilitate communication with an occupant regarding Mr. Parr’s emergency medical condition, the conduct of Constable Jenkins was not a search within the meaning of s. 8 of the Charter as neither the purpose of the entry nor the actual activity of Constable Jenkins exceeded the conditions of waiver of privacy rights encompassed by an implied invitation to knock. Further, Constable Jenkins’ valid purpose for entering Mr. Parr’s property was not undermined by his knowledge of an ongoing criminal investigation of Mr. Parr, particularly given that I have found as a fact that he did not enter the property to gather evi- 142 CRIMINAL REPORTS 27 C.R. (7th)

dence in furtherance of that investigation. As such, Constable Jen- kins’ observations properly form part of the reasonable and probable grounds outlined in the ITO and do not cast doubt on the legality of the warrant of the ensuing search of Mr. Parr’s property pursuant to that warrant. [Emphasis added.] 38 On two occasions (at paras. 18 and 36) the trial judge expressed his conclusion that Constable Jenkins entered the appellant’s property and knocked on his door with the “primary intention” or “primary purpose” of attempting to notify a resident of the appellant’s situation. 39 As these two references lie at the heart of the appellant’s contention that the trial judge found, at least implicitly, that Constable Jenkins was motivated by a secondary investigative purpose, it is necessary to put both references in context. 40 After reviewing the evidence called by the Crown on the voir dire, the trial judge said this: [18] I conclude factually that what happened here was Constable Jen- kins was aware of Mr. Parr being under investigation for a marihuana grow operation. But for the request of Constable Nash, he would not have attended the home. He did so, I find, with the primary intention of potentially notifying a resident and/or next of kin of an emergency situation associated with Mr. Parr. The emergency situation, of course, was that Mr. Parr had been detained under the Mental Health Act and had been taken by ambulance to Williams Lake, a community some 300 to 400 kilometres away from Bella Coola. 41 The trial judge (at para. 32) stated that “[a] complicating factor in this voir dire is the possible dual purpose of the entry in light of Constable Jenkins’ prior knowledge of an ongoing criminal investigation involving Mr. Parr”. 42 In addressing the appellant’s contention that the evidence supported a finding that Constable Jenkins had an ulterior investigative motive for entering the property, the trial judge said this (at para. 36): ...Constable Jenkins had prior knowledge of an ongoing criminal investigation involving Mr. Parr. The primary purpose of his entry, however, I find was to facilitate communication with the occupant to protect Mr. Parr’s interest in relation to his arrest under the Mental Health Act. Therefore, it could not be said that he had a dual purpose as the mere existence of knowledge of possible unrelated criminal activity cannot negate the lawful purpose of his entry. [Emphasis added.] R. v. Parr Fitch J.A. 143

43 Immediately thereafter, the trial judge confirmed his factual finding that Constable Jenkins’ valid purpose for entering the property “was not undermined by his knowledge of an ongoing criminal investigation of Mr. Parr, particularly given that I have found as a fact that he did not enter the property to gather evidence in furtherance of that investigation” (at para. 37).

D. Analysis 44 This appeal turns on issues relating to the interpretation of the trial judge’s reasons for judgment on the voir dire. If the trial judge found either expressly or by necessary implication that one of the purposes for which Constable Jenkins entered the appellant’s property was to further an ongoing criminal investigation, the smell of vegetative marihuana was information acquired by the police in a warrantless search and the trial judge erred in not coming to the conclusion. 45 As noted in Evans: ...where the police... purport to rely on the invitation to knock and approach a dwelling for the purpose, inter alia, of securing evidence against the occupant, they have exceeded the bounds of any implied invitation and are engaging in a search of the occupant’s home. 46 Analysis of the central issue raised on this appeal must take account of the settled proposition that reasons for judgment must be read as a whole: R. v. Semchuk, 2012 BCCA 389 (B.C. C.A.) at para. 17. 47 In my view, the reasons for judgment, when read as a whole, do not support the appellant’s argument that the trial judge, at least impliedly, found Constable Jenkins to be motivated by a secondary investigative purpose when he attended at the appellant’s property. I have come to this conclusion for a number of reasons. 48 First, the interpretation advanced by the appellant is inconsistent with the clear factual findings made by the trial judge regarding the purpose of Constable Jenkins’ attendance at the property. The trial judge rejected the appellant’s position that Constable Jenkins entered the property for the purposes of gathering evidence in furtherance of an ongoing criminal investigation. The trial judge underscored his rejection of the appellant’s position on this point by distinguishing Constable Jenkins’ conduct from the conduct of police officers in cases like Evans where the implied invitation to knock principle was merely an excuse for an entry motivated by an investigative purpose. Read as a whole, the reasons for judgment leave no room for doubt that the trial judge found that Constable Jenkins 144 CRIMINAL REPORTS 27 C.R. (7th)

entered upon the appellant’s property for the singular purpose of facilitating contact with an occupant. 49 Second, given the trial judge’s correct and thorough articulation of the implied licence to knock doctrine, it is readily apparent he would not have come to the conclusion he did in the face of a factual finding that Constable Jenkins was motivated, in whole or in part, by an investigative purpose when he entered the appellant’s property. 50 Third, it is telling that on each occasion the trial judge referred to Constable Jenkins’ “primary intention” or “primary purpose” for approaching the residence, he did so in the context of distinguishing between the purpose for which the entry was effected (to facilitate communication with an occupant) and the officer’s knowledge of the pre- existing criminal investigation when the entry was made. Read in context, I believe the point the trial judge was attempting to make is that Constable Jenkins’ awareness that evidence might be obtained as a consequence of the entry did not negate the lawful purpose motivating his entry. 51 Although perhaps inelegantly expressed, I am satisfied that the trial judge (who was delivering oral reasons for judgment on the voir dire) used the phrases “primary intention” and “primary purpose” to make the point that while Constable Jenkins recognized before attending the property he might see something of significance to the ongoing investigation, that is not why he approached the appellant’s residence and knocked. In my view, it is not possible to interpret the impugned passages in the manner the appellant suggests given the trial judge’s clear and repeated factual findings that Constable Jenkins entered the property for the singular purpose of facilitating contact with an occupant. 52 In his well-framed submission, counsel for the appellant also advanced the more general proposition that where the evidence establishes the police have adverted to the possibility of securing evidence before entering the premises, they necessarily exceed the authority conferred upon them by the implied licence to knock principle. In support of this argument, the appellant relies on this passage from Evans: [20] ... As a result, I would hold that in cases such as this one, where evidence clearly establishes that the police have specifically adverted to the possibility of securing evidence against the accused through “knocking on the door”, the police have exceeded the authority conferred by the implied licence to knock. R. v. Parr Fitch J.A. 145

53 I do not agree that Evans should be read as supporting the broad proposition advanced by the appellant. The passage from Evans relied upon by the appellant must be read in context. Before making the remarks ex- cerpted above, Sopinka J., for the majority, found that the evidence in Evans: [16] ... makes it clear that a subsidiary purpose of approaching the Evans’ door was to attempt to ‘get a whif [sic] or a smell, of marihuana. As a result, the police approached the Evans’ home not merely out of a desire to communicate with the occupants, but also in the hope of securing evidence against them. It was in this specific context, and against factual findings particular to Evans and notably absent in the case at bar, that Justice Sopinka made these remarks. 54 Acceptance of the appellant’s argument on this point would entail adoption of the proposition that a police officer who suspects criminal activity on a property could never lawfully enter that property, even if the sole purpose of the entry was to facilitate contact with an occupant. I do not accept that the Supreme Court of Canada intended this result. 55 In my view, it is important to distinguish, as the trial judge did, between the purpose for the entry and knowledge on the part of the police of the potential that evidence might be acquired in the course of that entry. Provided the police act for a purpose falling within the scope of the implied invitation to knock principle, and for no other reason, 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 the doctrine. I accept, however, that the existence of an ongoing criminal investigation at the time of the entry, and advertence by the police to the prospect of gathering evidence in the course of that entry, are relevant considerations to be taken into account when determining the purpose for which the entry and knock was undertaken. 56 As noted earlier, I am satisfied that when the trial judge distinguished between the purpose for the entry and the knowledge Constable Jenkins possessed at the time, he was considering whether to give effect to the appellant’s argument that Constable Jenkins was motivated, at least in part, by an investigative purpose. He did not err in turning his mind to this issue. 57 Finally, the appellant submits that the trial judge’s analysis of the central issue before him was improperly influenced by the Crown’s reli- ance on authorities addressing “dual purpose” detentions and searches. 146 CRIMINAL REPORTS 27 C.R. (7th)

The appellant says this line of authority was not relevant to the issue the trial judge had to decide. Further, he submits that a risk arises from the trial judge’s reference to these authorities that he erroneously understood that so long as the reason for the police entry was rooted “predomi- nantly” or “primarily” in a purpose recognized by Evans as falling within the scope of the implied licence doctrine, any secondary purpose or motivation would not taint the lawfulness of the entry. 58 I agree with the appellant that the dual purpose authorities relied on by the Crown were not relevant to the narrow issue that arose in this case. I also agree with the appellant that this line of authority is incompatible with the implied licence principle. As a consequence, I accept the appellant’s position that it is necessary to closely scrutinize the trial judge’s reasons for judgment to determine whether he was led astray by the introduction of inapplicable principles. 59 Having done so, I am unable to conclude that the trial judge found the entry not to constitute a search because Constable Jenkins’ “primary purpose” for entering the property was to facilitate contact with an occupant, and that he was only secondarily motivated by an investigative goal. Again, the construction the appellant would have this Court place on the impugned passages cannot survive the trial judge’s correct articulation of the scope of the implied licence principle and his clear factual findings that the sole purpose of the entry was to facilitate contact with an occupant to advise them of the appellant’s medical distress. 60 In conclusion, and considering the reasons for judgment as a whole, I am unable to accede to the appellant’s argument that the trial judge found Constable Jenkins to be motivated by a secondary investigative purpose and failed to give legal effect to this factual finding. On the findings made by the trial judge on the voir dire, Constable Jenkins knocked on the appellant’s door for a purpose falling squarely within the scope of the implied licence to knock doctrine and not to gather evidence in furtherance of an investigation. As the appellant acknowledges that it was open to the trial judge to reasonably come to this conclusion, there is no basis upon which this Court can intervene. 61 In light of my conclusion on this point, it is unnecessary for me to address the ancillary issues raised on this appeal as all of them are dependent on a conclusion that the trial judge erred in holding that the actions of Constable Jenkins did not constitute a search. 62 For the foregoing reasons, I would dismiss the appeal. R. v. Parr D. Smith J.A. 147

Saunders J.A.:

I agree.

D. Smith J.A.:

I agree. Appeal dismissed. 148 CRIMINAL REPORTS 27 C.R. (7th)

[Indexed as: R. v. Ferreira] Her Majesty the Queen and Edgar Ferreira Ontario Superior Court of Justice Docket: CR/11/10000739 2016 ONSC 2039 Forestell J. Heard: February 1-3, 2016 Judgment: February 8, 2016 Charter of Rights and Freedoms –––– Unreasonable search and seizure [s. 8] — Warrant requirements –––– Warrant invalid where Information to Obtain because of important omissions about credibility of confidential informant, inclusion of unreliable information and mischaracterization of important details leading to issuance of warrant lacking reasonable and probable grounds for believing evidence would be located in accused’s residence. Charter of Rights and Freedoms –––– Charter remedies [s. 24] — Exclusion of evidence –––– Evidence to be excluded where warrant obtained through significant deficiencies in Information to Obtain. The police obtained a search warrant authorizing a search of the accused’s residence. The officer swearing the Information to Obtain (ITO) relied heavily on information provided by a confidential informant. The police executed the warrant and seized quantities of different drugs, drug paraphernalia, and a handgun with ammunition. The accused was charged with ten different offences. At trial, the accused challenged the validity of the warrant and sought exclusion of the evidence obtained in the search. The Crown disclosed a redacted version of the ITO to the defence and a draft judicial summary of the redacted portions. The Crown also provided the trial judge with a sealed, unredacted copy of the ITO. After reviewing it, the trial judge approved the draft judicial summary and then permitted the defence to cross-examine the affiant of the ITO, S. In addition, a police officer who took a statement from the accused testified at the exclusion hearing. The Crown conceded that the ITO omitted mention that the confidential informant had received money in return for providing information. In his testimony, S confirmed that the informant received money but not until after the warrant had been executed. He stated that he knew this information at the time of swearing the ITO but had no explanation for omitting to include it. The ITO also had a conclusory statement that the confidential informant had provided accurate information to the police on previous occasions. However, the Crown argued that R. v. Ferreira 149 the confidential informant’s information was compelling and corroborated to at least some extent. Held: The warrant was invalid and in violation of s. 8 of the Charter; evidence to be excluded. To be valid, a search warrant must be authorized on reasonable and probable grounds in two respects: that an offence was occurring and that evidence of that offence would be obtained at the place to be searched. Where the ITO is sworn relying on information provided by a confidential informant, whether the information was compelling, corroborated in other respects, and whether the informant was credible are important considerations, although weaknesses in one area may be offset by strengths in another. In assessing the validity of the warrant, deference was owed to the issuing justice. Factual claims without an objective foundation should be disregarded. Facts that should have been disclosed that weaken the grounds relied upon must be taken into account. Amplification to adduce information not placed before the justice may be considered to correct good faith errors or inaccuracies. The warrant was invalid. The omission of important information about the credibility of the confidential informant was significant. The ITO was misleading in three ways: it failed to disclose the monetary motivation of the confidential informant; it failed to provide any details of the past accuracy of the informant; and, it relied on second hand information and an overstatement of the firsthand information to ground the belief that evidence would be found in the residence of the accused. Although there was sufficient information to believe that the accused was committing the crimes in question, the errors led to the issuance of the warrant without the necessary reasonable and probable grounds to believe that the items sought would be found in the accused’s residence. The evidence obtained through the invalid warrant must be excluded. The conduct of the state was serious and, at best, significantly careless. It resulted in a warrantless search of the accused’s residence and therefore the impact on his Charter protected rights was significant. Although the societal interest in the adjudication of the case was important, it was outweighed by the other factors. Cases considered by Forestell J.: R. v. Araujo (2000), 2000 SCC 65, 2000 CarswellBC 2438, 2000 CarswellBC 2440, [2000] S.C.J. No. 65, 193 D.L.R. (4th) 440, 38 C.R. (5th) 307, 149 C.C.C. (3d) 449, 262 N.R. 346, 143 B.C.A.C. 257, 235 W.A.C. 257, [2000] 2 S.C.R. 992, 79 C.R.R. (2d) 1, REJB 2000-21474 (S.C.C.) — referred to R. v. Blake (2010), 2010 ONCA 1, 2010 CarswellOnt 23, 71 C.R. (6th) 317, 251 C.C.C. (3d) 4, [2010] O.J. No. 48, 257 O.A.C. 346, 204 C.R.R. (2d) 156 (Ont. C.A.) — considered R. v. Boussoulas (2014), 2014 ONSC 5542, 2014 CarswellOnt 13487, [2014] O.J. No. 4525, 320 C.R.R. (2d) 64 (Ont. S.C.J.) — referred to 150 CRIMINAL REPORTS 27 C.R. (7th)

R. v. Caissey (2007), 2007 ABCA 380, 2007 CarswellAlta 1640, 84 Alta. L.R. (4th) 226, 227 C.C.C. (3d) 322, [2008] 4 W.W.R. 100, 415 W.A.C. 208, 422 A.R. 208, [2007] A.J. No. 1342 (Alta. C.A.) — considered R. v. Caissey (2008), 2008 SCC 65, 2008 CarswellAlta 1769, 2008 CarswellAlta 1770, [2009] 2 W.W.R. 1, 237 C.C.C. (3d) 289, 382 N.R. 198, 99 Alta. L.R. (4th) 199, 299 D.L.R. (4th) 432, 446 A.R. 395, 442 W.A.C. 395, [2008] 3 S.C.R. 451, [2008] S.C.J. No. 66 (S.C.C.) — referred to R. v. Collins (1987), [1987] 3 W.W.R. 699, [1987] 1 S.C.R. 265, (sub nom. Collins v. R.) 38 D.L.R. (4th) 508, 74 N.R. 276, 13 B.C.L.R. (2d) 1, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193, 28 C.R.R. 122, 1987 CarswellBC 94, 1987 CarswellBC 699, [1987] S.C.J. No. 15, EYB 1987-66975 (S.C.C.) — referred to R. v. Debot (1986), 17 O.A.C. 141, 54 C.R. (3d) 120, 30 C.C.C. (3d) 207, 26 C.R.R. 275, 1986 CarswellOnt 135, [1986] O.J. No. 994 (Ont. C.A.) — referred to R. v. Debot (1989), 73 C.R. (3d) 129, [1989] 2 S.C.R. 1140, 102 N.R. 161, 37 O.A.C. 1, 52 C.C.C. (3d) 193, 45 C.R.R. 49, 1989 CarswellOnt 111, 1989 CarswellOnt 966, [1989] S.C.J. No. 118, EYB 1989-67472 (S.C.C.) — referred to R. v. Dhillon (2010), 2010 ONCA 582, 2010 CarswellOnt 6645, [2010] O.J. No. 3749, 78 C.R. (6th) 286, 260 C.C.C. (3d) 53, 218 C.R.R. (2d) 243, 270 O.A.C. 107 (Ont. C.A.) — considered R. v. Floyd (2012), 2012 ONCJ 417, 2012 CarswellOnt 8523, [2012] O.J. No. 3133, 263 C.R.R. (2d) 122 (Ont. C.J.) — followed R. v. Garofoli (1990), 80 C.R. (3d) 317, [1990] 2 S.C.R. 1421, 116 N.R. 241, 43 O.A.C. 1, 36 Q.A.C. 161, 60 C.C.C. (3d) 161, 50 C.R.R. 206, 1990 Cars- wellOnt 119, 1990 CarswellOnt 1006, [1990] S.C.J. No. 115, EYB 1990- 67574 (S.C.C.) — followed R. v. Grant (2009), 2009 SCC 32, 2009 CarswellOnt 4104, 2009 CarswellOnt 4105, 66 C.R. (6th) 1, [2009] S.C.J. No. 32, [2009] A.C.S. No. 32, 245 C.C.C. (3d) 1, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 391 N.R. 1, 253 O.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. Greaves-Bissesarsingh (2014), 2014 ONSC 4900, 2014 CarswellOnt 11454, [2014] O.J. No. 3892, 314 C.C.C. (3d) 493, 318 C.R.R. (2d) 300 (Ont. S.C.J.) — referred to R. v. Lising (2005), 2005 SCC 66, 2005 CarswellBC 2691, 2005 CarswellBC 2692, (sub nom. R. v. Pires) 259 D.L.R. (4th) 441, (sub nom. Lising v. The Queen) 201 C.C.C. (3d) 449, 33 C.R. (6th) 241, 241 N.R. 147, 217 B.C.A.C. 65, 358 W.A.C. 65, 49 B.C.L.R. (4th) 33, [2006] 4 W.W.R. 403, (sub nom. R. v. Pires) 136 C.R.R. (2d) 85, [2005] 3 S.C.R. 343, [2005] S.C.J. No. 67 (S.C.C.) — referred to R. v. Ferreira Forestell J. 151

R. v. Morelli (2010), 2010 SCC 8, 2010 CarswellSask 150, 2010 CarswellSask 151, [2010] 4 W.W.R. 193, 72 C.R. (6th) 208, 252 C.C.C. (3d) 273, [2010] S.C.J. No. 8, 316 D.L.R. (4th) 1, (sub nom. R. v. U.P.M.) 399 N.R. 200, [2010] 1 S.C.R. 253, 207 C.R.R. (2d) 153, (sub nom. R. v. U.P.M.) 346 Sask. R. 1, (sub nom. R. v. U.P.M.) 477 W.A.C. 1, [2010] A.C.S. No. 8 (S.C.C.) — followed R. v. Rocha (2012), 2012 ONCA 707, 2012 CarswellOnt 13039, [2012] O.J. No. 4991, 112 O.R. (3d) 742, (sub nom. R. c. Rocha) 112 O.R. (3d) 761, 97 C.R. (6th) 326, 296 O.A.C. 357, 292 C.C.C. (3d) 325, 268 C.R.R. (2d) 321 (Ont. C.A.) — considered R. v. Sadikov (2014), 2014 ONCA 72, 2014 CarswellOnt 752, [2014] O.J. No. 376, 305 C.C.C. (3d) 421, 314 O.A.C. 357, 300 C.R.R. (2d) 308 (Ont. C.A.) — referred to R. v. Soto (2010), 2010 ONSC 1734, 2010 CarswellOnt 2377, 209 C.R.R. (2d) 191, [2010] O.J. No. 1644 (Ont. S.C.J.) — distinguished R. v. Soto (2011), 2011 ONCA 828, 2011 CarswellOnt 14809, [2011] O.J. No. 5899 (Ont. C.A.) — 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.) — followed 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 to s. 8 — considered s. 24(2) — considered Controlled Drugs and Substances Act, S.C. 1996, c. 19 Generally — referred to s. 11 — considered

APPLICATION by accused charged with drug offences to exclude evidence.

Joanne Capozzi, for Crown D. Sid Freeman, for Edgar Ferreira

Forestell J.: Introduction 1 Edgar Ferreira is charged with ten offences arising from a search of his residence conducted by the police pursuant to a Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”) search warrant. The 152 CRIMINAL REPORTS 27 C.R. (7th)

warrant at issue in this application was granted pursuant to s. 11 of the CDSA on May 24, 2011. On May 24, 2011 the police entered and searched the residence of the Applicant. They located 117.1 grams of cocaine, 252 tablets of MDMA, 97 tablets of Oxycontin, drug paraphernalia including scales and baggies and a .45 calibre Cobray firearm with 60 rounds of ammunition. 2 The warrant obtained by the police authorized the police to enter and search the dwelling house, chattels, locker and storage facilities of Edgar Ferreira at 806 Lansdowne Avenue, unit #308 in Toronto for cocaine, scales and contracts or paperwork in respect of which the offences of trafficking in cocaine and possession of cocaine for the purpose of trafficking had been committed. 3 Mr. Ferreira has applied to have all of the evidence excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (the “Char- ter”) on the basis that his rights protected by s. 8 of the Charter have been violated.

The Procedure on the Application 4 The Information to Obtain the Warrant (the “ITO”) was sworn by Of- ficer Stehlik. His grounds for seeking the warrant relied heavily on information provided to the police by a confidential informant (the “CI”). As a result, the Crown disclosed a redacted version of the ITO to defence counsel together with a draft judicial summary of the redacted portions. 5 Prior to hearing the application, I was given a copy of the sealed, unredacted ITO that was before the issuing justice pursuant to the “step six” procedure outlined by the Supreme Court of Canada in R. v. Garofoli.1 The unredacted ITO has been marked as a sealed exhibit on this application. I reviewed the Crown’s editing of the ITO and the draft judicial summary, heard the submissions of Ms. Freeman, and concluded that no further material could be disclosed. I also concluded that the draft judicial summary prepared by the Crown should be the final version. 6 As I indicated at the time of the approval of the judicial summary, the information provided was sufficient to permit a facial and sub-facial challenge to the warrant. 7 Ms. Freeman applied for leave to cross-examine Officer Stehlik. The Crown agreed that leave should be granted to cross-examine Officer

1 [1990] 2 S.C.R. 1421 (S.C.C.) R. v. Ferreira Forestell J. 153

Stehlik on the narrow issue of his omission from the ITO of the information that the CI had a monetary motivation for providing information to the police. 8 In addition to the testimony of Officer Stehlik, I heard the evidence of Officer Taylor who took a statement from the Applicant following his arrest. Ms. Freeman relies upon this evidence in part for her s. 24(2) argument. 9 The record before me on the application consisted of the following: (1) the unredacted and redacted copies of the ITO that was before the issuing justice, and the judicial summary of the redactions, (2) the unredacted and redacted copies of the search warrant issued on May 24, 2011, (3) the “Search Warrant Executed” report setting out the evidence discovered from search conducted pursuant to the warrant, (4) the testimony of Officer Scott Taylor, and, (5) the testimony of Officer Michael Stehlik.

Positions of the Parties 10 Ms. Freeman submits that the search of Mr. Ferreira’s residence violated his rights protected by s. 8 of the Charter, and as a result, the evidence obtained should be excluded pursuant to s. 24(2) of the Charter. Ms. Freeman submits that the ITO contained significant omissions, and did not constitute full, fair and frank disclosure. She further argues that the police did not have reasonable and probable grounds to obtain the warrant. The information provided by the CI was neither compelling nor corroborated and the credibility of the CI was weak. 11 Ms. Capozzi submits that, with the exception of the information regarding the motivation of the CI which was inadvertently omitted, Of- ficer Stehlik’s reasonable and probable grounds for belief were set out in the ITO in a full, fair and frank manner, and amply supported the issuance of the warrant. Ms. Capozzi argues that to the extent that there were weaknesses in the credibility of the CI, the compelling nature of the information provided by the CI and the corroboration through police investigation compensated for those weaknesses. 12 I have concluded that the warrant is invalid. The omission of important information concerning the credibility of the CI, the inclusion of unreliable second hand information and the mischaracterization of some of the important details led to the issuance of the warrant without reasona- 154 CRIMINAL REPORTS 27 C.R. (7th)

ble and probable grounds to believe that the items sought would be found in the residence of the Applicant. I find the conduct to be serious and the impact on the Charter protected rights of the Applicant significant. In the circumstances these factors outweigh the interests of society in an adjudication of the case on the merits and the evidence must be excluded.

The Standard of Review 13 To be reasonable under s. 8 of the Charter, a search must be authorized by law.2 14 The search in this case was authorized by a search warrant. A search warrant is presumed to be valid, and the onus is on the Applicant to show that there was not sufficient credible and reliable evidence to permit a justice of the peace to issue the warrant.3 15 The standard of persuasion for the issuance of a warrant is reasonable grounds to believe. There must be reasonable grounds to believe that the offence or offences have been committed and that the evidence or illicit substances relating to the offences will be found in the place to be searched. 16 This standard is one of credibly-based probability, and requires proof of reasonable probability or reasonable belief. It requires more than an experienced-based “hunch” or reasonable suspicion.4 17 This standard was explained by Paciocco J. in R. v. Floyd5 as follows: ¶9 In sum, the ‘reasonable and probable grounds’ or ‘credibly-based probability’ concept requires that the grounds furnished must demonstrate that there is a probability as opposed to a suspicion that the relevant facts could be true, assuming the information to be true (the ‘sufficiency inquiry’), and that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant fact exists (the ‘credibility inquiry’). ¶10 This two-part ‘reasonable and probable grounds’ standard is relevant to two inquiries that must each be met before a ‘reasonable and

2 R. v. Collins, [1987] 1 S.C.R. 265 (S.C.C.) at p. 278 3 R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 (S.C.C.) at para. 30 4 R. v. Sadikov, 2014 ONCA 72 (Ont. C.A.) at para. 81. R. v. Boussoulas, 2014 ONSC 5542 (Ont. S.C.J.) at paras 21 and 22 5 [2012] O.J. No. 3133 (Ont. C.J.) at paras. 14-16 R. v. Ferreira Forestell J. 155

probable grounds’ search warrant can issue. First, the affiant who has sworn the ‘Information to Obtain’ affidavit... must honestly believe that they have reasonable grounds to believe that an offence is occurring and that what is being sought is evidence that will be found at the place to be searched.... If the affiant does not actually believe that, the search warrant is invalid. This first inquiry is the ‘subjective’ component of the reasonable and probable grounds standard: (R. v. Storrey, [1990] 1 S.C.R. 241 at 250.) The second inquiry, the “objective” component, requires that the affiant’s belief that they have reasonable and probable grounds must be supported by enough information to enable a reasonable person to come to the same conclusion: R. v. Storrey, [1990] 1 S.C.R. 241 at 250. ¶11 Not only must there be ‘reasonable and probable grounds’ as described before a warrant can issue, those grounds must be demonstrated to the issuing justice. This latter requirement is ‘known as the requirement of’ prior authorization”: (R. v. Morris, [1998] N.S.J. no. 492at para. 32 (N.S.C.A.). It is meant to ensure that the decision to compromise a reasonable expectation of privacy is made by an impartial and independent judicial officer rather than an investigator who may have an interest in pursuing the investigation. 18 When the police rely upon information from a confidential informer to meet this standard, consideration must be given to whether the information from the informer is compelling or corroborated by other aspects of the police investigation and whether the informant was credible. These are not discrete, isolated inquiries, however, and weaknesses in one area may be offset by strengths in another.6 19 In a review of the validity of a warrant, the reviewing court must show deference to the issuing justice. In R. v. Morelli,7 the test to be applied by a reviewing justice was set out as follows: In reviewing the sufficiency of a warrant application, however, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable ev-

6 R. v. Debot, 1986 CanLII 113, (1986), 30 C.C.C. (3d) 207 (Ont. C.A.), at pp. 218-219, affirmed, 1989 CanLII 13, [1989] 2 S.C.R. 1140 (S.C.C.), at pp. 1168- 1171 7 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.) at para. 40 156 CRIMINAL REPORTS 27 C.R. (7th)

idence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. [Emphasis original] 20 In R. v. Vu8 the Supreme Court pointed out that “in applying this test, the reviewing judge must take into account that authorizing justices may draw reasonable inferences from the evidence in the ITO; the informant need not underline the obvious...”. 21 A search warrant is obtained ex parte and the Applicant for the warrant must provide full and frank disclosure of relevant facts.9 22 In Morelli, Fish J. made it clear that a reviewing court does not under- take its review based only on the ITO, but must exclude erroneous information and may have reference to ‘amplification’ evidence. 23 As summarized by Paccioco J. in R. v. Floyd,10 the relevant principles in settling the record for review are as follows. ¶14 First, factual claims made in the “Information to Obtain” affidavit that are without an objective foundation of credibility should be disregarded. For this reason, bald unsupported conclusions and erroneous or false facts should notionally be excised from an “Informa- tion to Obtain” affidavit. ¶15 Second, facts that should have been disclosed that weaken the significance or credibility of the grounds relied upon should also be taken into account since it is expected that during ex parte warrant applications the affiant will make full and frank disclosure of the actual state of affairs. Where this has not occurred such facts can be considered by the reviewing judge as if they had been before the reviewing judge. ¶16 Third, in appropriate cases even information that could have supported the warrant but that was not put before the issuing justice by the affiant can be added during the review stage through “amplification.” In particular, amplification can occur where additional information that was available to the affiant at the time the “Information to Obtain” affidavit was sworn is inserted to correct errors or inaccu-

8 2013 SCC 60, [2013] 3 S.C.R. 657 (S.C.C.) at para. 16 9 R. v. Araujo (2000), 149 C.C.C. (3d) 449 (S.C.C.) at paras. 46-47 10 [2012] O.J. No. 3133 (Ont. C.J.) at paras. 14-16 R. v. Ferreira Forestell J. 157

racies in the “Information to Obtain” affidavit that have been made in good faith. [citations omitted] 24 As set out in R. v. Garofoli, supra, at para. 56, in the review process, the “existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant but rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.”

Settlement of Issues relating to the Record 25 It is conceded that the affiant failed to disclose to the issuing justice the monetary motivation of the CI. On the voir dire, Officer Stehlik testified that the motivation of the CI was monetary and that he knew that when he swore the ITO. He also testified that no money was paid to the informant or promised to the informant prior to the execution of the search warrant. Money was paid after the execution of the warrant. 26 Officer Stehlik had no explanation for omitting this information from the ITO. He acknowledged that he knew at the time that he swore the ITO that the nature of the motivation of the CI should be included in the ITO in order to meet his obligation to be full, frank and fair. The officer could not remember when he first realized that he had failed to include this informaiton. He made no note of any meetings with the Crown. 27 Officer Stehlik agreed that either he or the handler of the CI would have been present with the Crown for the editing of the ITO before it was provided to the defence. He could not say whether he realized at that stage that the motivation of the CI had not been disclosed to the issuing justice. He agreed that the editing would have occurred long before Au- gust 2014. Officer Stehlik was shown a letter from the Crown to counsel for Mr. Ferreira dated August 5, 2014 indicating that the Crown had recently learned that the motivation of the CI was financial. Officer Stehlik would not agree that this was the timeframe in which he told the Crown about the omission. After Officer Stehlik was given an opportunity to refresh his memory from emails between him and the Crown he was still unwilling to say that he first realized the omission and disclosed it in August 2014. Officer Stehlik testified that it was around August of 2014 that the Crown had specifically asked him whether the CI had been paid and that he told the Crown that the informant had been paid. 28 The officer objected to the characterization of the omission as an ‘error’. He said: “I don’t want to sound like I am being difficult because I 158 CRIMINAL REPORTS 27 C.R. (7th)

am really trying not to. When we say error it paints the picture in my mind that there is like a checklist of things that must be in every single ITO. That’s really not the case from my experience and training. So while I do my absolute best to be full, frank and fair and include everything, positive and negative, to the investigation that I possibly can to be as open and fair to the justice that is going to be reviewing it, by saying that it is an error that would suddenly jump out at me and I would have to make a note quickly and report to people, I look at it now as an experienced affiant as: that is something I definitely should have included, it is important. And I don’t know why I didn’t in this case but it wasn’t on purpose. I did not make a conscious decision to keep it out of the warrant. It’s simply something I forgot and it is unfortunate. I don’t know what else I can say about it.” 29 When pressed about the characterization of the omission as ‘unfortunate’ he conceded that it was a ‘mistake’. He had no explanation for the mistake. 30 In re-examination the officer testified that the payment of money to the CI would have been conditional on a successful result in the investigation: seizure of evidence or arrest. He had no knowledge of any specific conditions in this case but testified as to the general practice in dealing with CIs. 31 I must take into account the omitted information that the motivation of the CI was monetary. I infer that the CI sought the monetary compen- sation. I have no evidence of any conditions attached to the payment of the money. I draw the inference that the general practice of attaching some conditions would have been followed but the nature of the conditions in this case cannot be determined.

Credibility of the Informant 32 In this case, the Applicant argues that the credibility of the CI is weak at best. The ITO contains only a conclusory statement that the CI “is a proven and reliable source having provided accurate information to the police in the past.” It is evident from the unredacted portions of the ITO and the judicial summary that no detail was provided as to the nature of the information provided in the past, the frequency with which the CI R. v. Ferreira Forestell J. 159

provided information to the police,11 how recently the CI had last provided such information or how the accuracy of the information was assessed. In addition it is argued that the failure of the affiant to disclose to the issuing justice the monetary motivation of the CI further undermines the credibility of the CI. 33 I find that there is little in the ITO to support the credibility of the CI. The conclusory statement that the CI “is a proven and reliable source having provided accurate information to the police in the past” is of little value without any supporting detail. The monetary motivation of the CI raises real concerns about credibility. In this case, information about conditions attached to the payment is lacking except in the most general sense. 34 The Crown concedes that the information supporting the credibility of the CI is not strong. However, the Crown argues that there is some information about the credibility of the CI and that the information concerning the financial motivation of the informant should not significantly affect the assessment of credibility. 35 Primarily however, the submission of the Crown is that the compelling nature of the information provided by the CI and the corroboration compensate for any weakness in the credibility of the CI.

Compelling nature of the information 36 The next factor to consider is whether the CI’s information was compelling. This requires a consideration of factors that relate to the reliability of the information provided. Such factors include the degree of detail provided and the means of knowledge. It is important to consider under this heading whether the CI relayed first hand observations or second hand hearsay, rumour or gossip.12 37 In this part of my reasons I must consider carefully the redacted material from the ITO. As a result, my reasons will not be as specific and detailed as they would be if not for the need to protect the identity of the CI.

11 Although at a later point in the ITO under ‘Grounds to believe the offences have been committed’, the affiant refers to the CI having provided information to the police on “numerous occasions”. 12 R. v. Debot supra at para. 54; R. v. Greaves-Bissesarsingh, 2014 ONSC 4900 (Ont. S.C.J.) at para. 35. 160 CRIMINAL REPORTS 27 C.R. (7th)

38 The nature of the information provided by the CI contained in the redacted ITO and judicial summary is as follows: (1) Timing: The redacted information discloses that the handler and the affiant received first hand and second hand information from the CI about the criminal activities of Mr. Ferreira. The unredacted ITO provides the specific dates that the criminal activity is alleged to have occurred and the dates that the information was provided. (2) CI’s knowledge of Mr. Ferreira: The redacted ITO indicates that the CI identified Mr. Ferreira from a single, seven year old photograph shown to him. The unredacted ITO gives a detail relating to the limits of the CI’s knowledge. (3) Address: The redacted ITO discloses that the CI indicated that a male who lived in a building at the corner of Dupont and Lans- downe was dealing in cocaine. Police investigation disclosed that Mr. Ferreira lived in a building at the corner of Dupont and Lansdowne. (4) Vehicle: The CI said that the male dealing in cocaine drove a black Cadillac with a licence plate BLHS 564. Mr. Ferreira, at that time, drove a black Cadillac Escalade with that licence plate number. The registered owner of the vehicle was Mr. Ferreira’s mother. (5) Criminal behaviour: The CI advised that the male was actively dealing drugs: specifically cocaine. The unredacted ITO discloses the type of cocaine and specific details about the drug dealing. 39 A review of the original unredacted ITO reveals that the information provided by the CI about the circumstances of the drug dealing was reasonably detailed. Some of the information was first hand. 40 Of particular significance in this case is that some of the information provided by the CI was second hand. There is no indication of the re- cency of the second hand information, the source of the second hand information or the credibility of the source. The Applicant argues that the second hand information should be given no weight. It was conceded by the Crown that the second hand information could not be given a great deal of weight. 41 The second hand information in this case in my view amounts to bald unsupported assertions from an unproven source. It is no better than rumour or gossip. The second hand information is the only direct infor- R. v. Ferreira Forestell J. 161

mation with respect to the grounds to believe that items sought in the warrant would be found in the residence of the Applicant. 42 While I find that the CI provided compelling information grounding the reasonable belief of the affiant that the Applicant had committed the enumerated offences, I find that the information provided by the CI was not compelling with respect to the grounds to believe that evidence of the offences would be found in the residence of the Applicant. The second hand information is entitled to no weight given the complete absence of any information that would support the reliability of the source. 43 The only other information to connect the residence of the Applicant to an illicit substance or evidence was the information provided by the CI of the specific details of criminal activity in the redacted portion of the ITO on page 9. The information is not compelling on this issue based on the sequence of events and timing. 44 The affiant, at page 11, refers back to the details provided by the CI. However, at page 11 the affiant subtly mischaracterizes the timing and sequence of events in a manner that tends to suggest a greater connection to the residence than was actually provided by the detailed account of the CI.

Corroboration 45 The police investigation independently established Mr. Ferreira’s address, physical description, make of car he drove, and licence plate associated with that car. All of these facts corroborated the information received from the CI with respect to the drug dealing. This was corroboration of the type referred to in R. v. Caissey.13 46 I am satisfied that there was some independent investigative corroboration that supported the information of the CI with respect to the drug dealing. The corroborative investigation however did not support the belief that evidence would be found in the residence of the Applicant.

Conclusion on the Validity of the Warrant 47 In spite of the weakness in the credibility of the CI, the information with respect to drug dealing was sufficiently compelling and corroborated to support the conclusion that there were reasonable and probable

13 2007 ABCA 380 (Alta. C.A.), affirmed on appeal at [2008] 3 S.C.R. 451 (S.C.C.) and R. v. Rocha, 2012 ONCA 707 (Ont. C.A.) 162 CRIMINAL REPORTS 27 C.R. (7th)

grounds to believe that the Mr. Ferreira was committing the offences set out in the ITO. 48 However, the information provided by the CI was not compelling with respect to the location of the things sought in the ITO in Mr. Fer- reira’s residence. It was second hand information that amounted to no more than gossip or rumour. The remaining, first hand, information that could be argued to provide such grounds is not compelling. I have considered the case of R. v. Soto14 relied upon by the Crown. In that case, the objective circumstances observed by two different police officers supported an inference that the accused left his residence with drugs on his person. Any observations in this case were made by a CI with weak credibility. More significantly, in the case before me, the circumstances are different from those in Soto in very material ways. I cannot explain the differences in the circumstances without disclosing redacted information. This case is wholly distinguishable from Soto. 49 Given the weakness in the credibility of the CI, the absence of any indicia of reliability in the second hand information and the absence of any corroboration with respect to the location of evidence or drugs in the residence, the totality of the circumstances could not support the granting of the warrant. I find that there was a breach of the Applicant’s s. 8 rights.

Should the evidence be excluded under s. 24(2)? 50 In R. v. Grant,15 the Supreme Court set out at para. 71 the approach to the exclusion of evidence under s. 24(2): [A] court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

14 2010 ONSC 1734 (Ont. S.C.J.) affirmed 2011 ONCA 828 (Ont. C.A.) 15 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.) R. v. Ferreira Forestell J. 163

51 I have considered the three avenues of inquiry identified in R. v. Grant. This was a warrantless search of the residence of the Applicant. It is not disputed that the impact on the Applicant’s Charter-protected rights was significant. This factor weighs in favour of exclusion. 52 There is also little dispute that society’s interest in the adjudication of this case on its merits weighs in favour of admission. The offences in this case are extremely serious and are of concern to the community. The Crown will be unable to prosecute the offences without the evidence seized in the search. As set out in R. v. Blake,16 “Society’s interest in an adjudication on the merits is seriously undercut where highly reliable and important evidence is excluded.” 53 Critical to the Grant analysis in this case is the assessment of the seriousness of the Charter-infringing state conduct. The police sought and were granted a search warrant. This was not a case where the police failed to seek prior authorization. In R. v. Rocha,17 Rosenberg J. wrote that “applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights. The search warrant process is an important means of preventing unjustified searches before they happen. Unless the applicant for exclusion of evidence can show that the warrant was obtained through the use of false or deliberately misleading information or the drafting of the ITO in some way subverted the warrant process, the obtaining of the warrant generally...tells in favour of admitting the evidence.” 54 In this case, as I have found, the ITO was misleading in three ways: it failed to disclose the monetary motivation of the CI; it failed to provide any details of the past accuracy of the CI; and, it relied on second hand information and an overstatement of the firsthand information to ground the belief that evidence would be found in the residence of the Applicant. 55 The next step of the analysis is to place the conduct on the spectrum of seriousness referred to in Grant. 56 Simmons J.A. wrote in R. v. Dhillon:18 “Although not at the extreme end of the spectrum of state misconduct, significant carelessness on the part of the police that leads to the issuance of an invalid warrant must nonetheless be placed on the serious side of the spectrum.”

16 2010 ONCA 1 (Ont. C.A.) at para. 31 17 2012 ONCA 707 (Ont. C.A.) at para 28 18 2010 ONCA 582 (Ont. C.A.) at para. 51 164 CRIMINAL REPORTS 27 C.R. (7th)

57 I find that the omission of the motivation of the CI and the conclusory statement regarding the CI’s proven reliability showed, at best, significant carelessness. I am troubled by the failure of the officer to acknowledge and disclose his omission with respect to the motivation of the CI. The testimony of the officer that there is no ‘checklist’ for warrants and his unwillingness to describe the omission as an error show a casual attitude towards the obligations of an affiant on an ex parte application. Where, as in this case, the affiant relies on a CI and knows that the ITO will likely be heavily redacted when provided to the defence, that attitude toward disclosure is serious. Had it not been for the diligence of the Crown who thought to ask the officer a very specific question about payment of money to the CI his omission might never have come to light. 58 I also reach the conclusion that the conduct was, at best, significantly careless based on the misleading characterization of the information said to provide grounds to believe that the items to be seized were at the residence of the Applicant. The wording chosen by the affiant on page 11 is only subtly slanted towards a greater connection to the residence than was actually conveyed by the CI. It is possible that the mischaracterization was inadvertent and due to carelessness rather than a deliberate attempt to mislead. It is, in either case, serious. Again, this exaggeration of the connection to the residence is of elevated gravity in a case where the ITO is likely to be heavily redacted and less open to challenge. 59 As Fish J. wrote in R. v. Morelli:19 “The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of can- dour and full disclosure that attach in ex parte proceedings. In discharg- ing those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.” 60 I have concluded that the omission of the motivation, the conclusory statement concerning the reliability of the CI and the misleading characterization of the connection to the residence led to the issuance of the invalid warrant.

19 2010 SCC 8 (S.C.C.) at para. 102 R. v. Ferreira Forestell J. 165

61 Balancing the relevant factors, I find that the evidence should be excluded. The Applicant’s rights were significantly impacted and the Char- ter infringing conduct was serious. These factors weigh very heavily in favour of exclusion of the evidence. 62 I conclude that the Applicant has met the onus of establishing on a balance of probabilities that the evidence should be excluded. 63 The Application is therefore allowed and the evidence is excluded. Application granted. 166 CRIMINAL REPORTS 27 C.R. (7th)

[Indexed as: R. v. Blok-Andersen] Her Majesty the Queen, Appellant and Peter Blok-Andersen, Respondent and Ben Strongitharm, Respondent Newfoundland and Labrador Court of Appeal Docket: 201401H0108, 201401H0106 2016 NLCA 9 B.G. Welsh, M.H. Rowe, M.F. Harrington JJ.A. Heard: December 11, 2015 Judgment: March 4, 2016 Sentencing –––– Principles — Aggravating factors –––– Preferred approach to avoid double punishment is to ignore benefitting a criminal organization as an aggravating factor when accused subject to additional consecutive sentence for offence benefitting criminal organization. Sentencing –––– Sentencing hearing — Discretion of trial court –––– No error in exercise of discretion by sentencing judge not to find accused to be directing mind of criminal organization. Sentencing –––– Types of sentence — Imprisonment — Miscellaneous –––– Error to restrict parole eligibility when sentence for criminal organization offence less than two years consecutive. The police conducted a drug trafficking investigation that targeted the two accused, B-A and S, along with five other people. The investigation resulted in a seizure of drugs and money and the men were charged. Four of the other five pleaded guilty to charges of trafficking in cocaine and committing offences for the benefit of a criminal organization. B-A and S were charged on the same indictment but proceeded to trial by jury and were convicted of various charges. B-A was convicted of one count of committing an offence for the benefit of a criminal organization and possession of cocaine for the purpose of trafficking. S was convicted of those counts and two additional counts of trafficking in cocaine. At the sentencing hearing, the sentencing judge made findings of fact that the existence of a criminal organization had been proven and that its operations involved significant quantities of cocaine and money, that a total of almost $500,000 had been transferred using banks and airline baggage, and that the motive was financial gain. S had been seen entering and leaving stash houses on several occasions, while B-A had been seen entering a stash house on one occasion. The Crown argued that the criminal organization was highly sophisticated, that B-A was the directed mind during the period covered by the indictment, that R. v. Blok-Andersen 167 the group was prepared to resort to violence, and that B-A had used violence to keep other members of the organization under control. However, the sentencing judge, while finding that the criminal organization was relatively sophisticated, did not find B-A to be the directing mind since he was not charged with drug offences from earlier periods nor was he charged with membership in the organization. She also found that there was no evidence that he had resorted to violence but that he did threaten violence towards others involved and found that there was insufficient evidence to conclude that S had used violence. She thus held that violence could not be considered an aggravating factor in the sentencing of S but threatening violence could be so used in B- A’s sentencing. The sentencing judge also noted that the Crown had not charged either accused with being a member of a criminal organization or with recruiting or soliciting someone to become a member. She therefore did not make a finding that either accused was a member of the criminal organization. She also held that, in sentencing on the drug offences, the fact that the offences were done for the benefit of a criminal organization was an aggravating factor, even though the sentence for committing an offence for the benefit of a criminal organization required a consecutive sentence. B-A had a minimal, dated criminal record. The sentencing judge imposed a sentence of seven years imprisonment, five and one- half years for possession for the purpose of trafficking and one and one-half years consecutive for the criminal organization offence, with credit for pre-sentence custody. She also ordered that he must serve one-half of the sentence for the criminal organization offence before becoming eligible for parole. S, who had no criminal record, received a sentence of five and one-half years. The Crown was granted leave to appeal the sentences and, on the appeal, sought a sentence for B-A of seven to nine years for cocaine charge and one and one- half to five years for the criminal organization offence, for a total of twelve to fourteen years imprisonment. For S, the Crown sought six to eight years for cocaine trafficking and from one and one-half to four years for the criminal organization offence, for a total of ten to twelve years imprisonment. Held: Leave to appeal was granted; the sentence appeals were dismissed but the parole ineligibility period for criminal organization offence was set aside. Per Welsh J.A. (Harrington J.A. concurring): Parliament created three different criminal organization offences and, although the Crown had chosen to charge only the offence of acting for the benefit of a criminal organization, the sentencing judge had discretion to consider facts related to another criminal organization offence so long as she made a note to that effect on the record. The sentencing judge exercised her discretion not to consider additional facts. There was no basis on which to interfere with her discretion. The sentencing judge was required to accept findings of fact essential to the jury’s verdict. However, she had the discretion to find additional facts and, in exercising this discretion, she considered the joint submissions and agreed state- 168 CRIMINAL REPORTS 27 C.R. (7th)

ment of facts tendered in relation to the other five accused persons. She did not err in limiting her findings of fact in respect of the time frame of B-A’s actions in benefitting the criminal organization. In respect of the sentence for B-A on the cocaine charge, she found as aggravating factors the large quantity and type of drugs, threats of violence made by B- A, and that the offence was committed for the benefit of a criminal organization. There is an element of double punishment in considering benefitting a criminal organization an aggravating factor on the drug charge when a consecutive sentence was mandated for the criminal organization offence. The sentencing judge did not address the issue but accorded minimal weight to the aggravating factor. The sentences imposed were at the high end of the range of appropriate sentences but the sentencing judge did not err by failing to consider relevant facts or principles of law. In respect of the sentences for S, the sentence for the criminal organization offence was at the high end of the range but the sentence for the drug charges was consistent with the appropriate range. The sentencing judge also did not err in principle or in law in imposing those sentences. The sentencing judge did err, however, in restricting parole eligibility because the sentences for the criminal organization offence did not satisfy the minimum two year sentence requirement. Per Rowe J.A. (separate concurring reasons): The Crown did not charge the accused with being members of a criminal organization. While it was open to the sentencing judge to consider any facts that could constitute the basis for a separate charge, she was under no obligation to do so. To be leader of a criminal organization entailed that B-A was a member of the organization. Since the Crown had not persuaded the sentencing judge to consider additional facts, logically the Crown failed on the issue of whether B-A was a directing mind of the organization. Cases considered by B.G. Welsh J.A.: R. c. Larche (2006), 2006 SCC 56, 2006 CarswellQue 10372, 2006 CarswellQue 10373, [2006] S.C.J. No. 56, (sub nom. R. v. Larche) 214 C.C.C. (3d) 289, 43 C.R. (6th) 1, (sub nom. R. v. Larche) 273 D.L.R. (4th) 577, (sub nom. R. v. Larche) 355 N.R. 48, [2006] 2 S.C.R. 762 (S.C.C.) — followed R. c. Venneri (2012), 2012 SCC 33, 2012 CarswellQue 6107, 2012 CarswellQue 6108, [2012] S.C.J. No. 33, (sub nom. R. c. Venneri) 347 D.L.R. (4th) 1, 93 C.R. (6th) 223, (sub nom. R. v. Venneri) 432 N.R. 54, 286 C.C.C. (3d) 1, (sub nom. R. v. Venneri) [2012] 2 S.C.R. 211 (S.C.C.) — referred to R. v. B. (A.) (2015), 2015 NLCA 19, 2015 CarswellNfld 107, [2015] N.J. No. 120, 322 C.C.C. (3d) 383, 1138 A.P.R. 160, 365 Nfld. & P.E.I.R. 160 (N.L. C.A.) — considered R. v. Beauchamp (2015), 2015 ONCA 260, 2015 CarswellOnt 5412, [2015] O.J. No. 1939, 333 O.A.C. 87, 326 C.C.C. (3d) 280 (Ont. C.A.) — considered R. v. Blok-Andersen 169

R. v. Evans (2013), 2013 ONSC 7003, 2013 CarswellOnt 17255, [2013] O.J. No. 5677 (Ont. S.C.J.) — followed R. v. Ferguson (2008), 2008 SCC 6, 2008 CarswellAlta 228, 2008 CarswellAlta 229, [2008] S.C.J. No. 6, 228 C.C.C. (3d) 385, 54 C.R. (6th) 197, 371 N.R. 231, 87 Alta. L.R. (4th) 203, [2008] 5 W.W.R. 387, 290 D.L.R. (4th) 17, 425 A.R. 79, 418 W.A.C. 79, [2008] 1 S.C.R. 96, 168 C.R.R. (2d) 34 (S.C.C.) — followed R. v. Kane (2012), 2012 NLCA 53, 2012 CarswellNfld 266, [2012] N.J. No. 268, 1009 A.P.R. 78, 325 Nfld. & P.E.I.R. 78 (N.L. C.A.) — considered R. v. Murphy (2011), 2011 NLCA 16, 2011 CarswellNfld 38, [2011] N.J. No. 43, 304 Nfld. & P.E.I.R. 266, 944 A.P.R. 266, 268 C.C.C. (3d) 392 (N.L. C.A.) — referred to R. v. Smith (2006), 2006 SKQB 137, 2006 CarswellSask 181, [2006] 9 W.W.R. 317, 278 Sask. R. 4 (Sask. Q.B.) — considered R. v. Smith (2008), 2008 SKCA 20, 2008 CarswellSask 87, [2008] 4 W.W.R. 27, 307 Sask. R. 45, 417 W.A.C. 45, [2008] S.J. No. 97, 232 C.C.C. (3d) 176 (Sask. C.A.) — referred to

Cases considered by M.H. Rowe J.A.: R. c. Larche (2006), 2006 SCC 56, 2006 CarswellQue 10372, 2006 CarswellQue 10373, [2006] S.C.J. No. 56, (sub nom. R. v. Larche) 214 C.C.C. (3d) 289, 43 C.R. (6th) 1, (sub nom. R. v. Larche) 273 D.L.R. (4th) 577, (sub nom. R. v. Larche) 355 N.R. 48, [2006] 2 S.C.R. 762 (S.C.C.) — followed Statutes considered: Controlled Drugs and Substances Act, S.C. 1996, c. 19 Generally — referred to s. 5(2)-5(3)(a) — referred to Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 467 — considered s. 467.1(1) “criminal organization” [en. 2001, c. 32, s. 27] — considered s. 467.11 [en. 2001, c. 32, s. 27] — considered s. 467.12 [en. 2001, c. 32, s. 27] — considered s. 467.12(1) [en. 2001, c. 32, s. 27] — considered s. 467.13 [en. 2001, c. 32, s. 27] — considered s. 467.14 [en. 2001, c. 32, s. 27] — considered s. 676(1)(d) — referred to s. 718.2 [en. 1995, c. 22, s. 6] — considered s. 718.2(a)(iv) [en. 1997, c. 23, s. 17] — considered s. 724 — considered s. 724(1) — considered s. 724(2) — considered 170 CRIMINAL REPORTS 27 C.R. (7th)

s. 724(2)(a) — referred to s. 724(2)(b) — considered s. 725 — considered s. 725(1)(c) — considered s. 725(2)(b) — considered s. 743.6(1.2) [en. 2001, c. 32, s. 45] — considered

APPEAL by Crown from judgment reported at R. v. Blok-Andersen (2014), 2014 NLTD(G) 141, 2014 CarswellNfld 350, [2014] N.J. No. 343, 1113 A.P.R. 211, 358 Nfld. & P.E.I.R. 211 (N.L. T.D.), sentencing two accused convicted of trafficking in cocaine and committing offence for benefit of criminal organization.

David Schermbrucker, for Appellant John W. Lavers, for Respondent, Peter Blok-Andersen Bob Buckingham, for Respondent, Ben Strongitharm

B.G. Welsh J.A.:

1 Peter Blok-Andersen and Ben Strongitharm were convicted of possession of cocaine for the purpose of trafficking and committing an offence “for the benefit of, at the direction of, or in association with a criminal organization” contrary to the Controlled Drugs and Substances Act and the Criminal Code. Mr. Blok-Andersen was sentenced to a total of seven years imprisonment, while Mr. Strongitharm was sentenced to a total of five and one-half years. 2 The Crown appeals against both sentences on the basis that the trial judge erred by failing to make necessary findings of fact for purposes of imposing sentence after convictions by a jury. In addition, the appeal engages the circumstances when a judge may order a term of parole ineligibility.

Background 3 In September 2009, the police began a comprehensive drug trafficking investigation targeting Mr. Blok-Andersen, Mr. Strongitharm and five others. On January 12, 2010 there was a seizure of drugs and money and the men were charged. Four others pleaded guilty to charges all of which involved trafficking in cocaine and committing offences for the benefit of a criminal organization. 4 Mr. Blok-Andersen and Mr. Strongitharm were charged on the same indictment. They were tried together and convicted by a jury. The R. v. Blok-Andersen B.G. Welsh J.A. 171

charges in the indictment against both men on which they were found guilty read: Count #1: Peter Blok-Andersen ... and Ben Strongitharm ... stand charged that they, on or between the 3rd day of September, A.D., 2009 and the 12th day of January, A.D., 2010, at or near St. John’s, in the Province of Newfoundland and Labrador, committed an unlawful offence (or offences) under the Controlled Drugs and Substances Act (the CDSA) ... for the benefit of, at the direction of, or in association with a criminal organization, contrary to section 467.12(1) of the Criminal Code ... Count #2: Peter Blok-Andersen and Ben Strongitharm ... stand charged that they, on or about the 11th and the 12th days of January, A.D., 2010, at or near St. John’s, ... and other parts of Newfoundland and Labrador, did unlawfully have in their possession for the purpose of trafficking, cocaine ... and did thereby commit an indictable offence contrary to section 5(2)-5(3)(a) of the CDSA. 5 Mr. Strongitharm was convicted of two additional counts of trafficking in cocaine. Sentences concurrent to the sentence for count #2 have not been appealed. In addition, I note that, if the Court concludes that the trial judge erred, triggering a consideration of whether the sentences should be varied, Mr. Blok-Andersen and Mr. Strongitharm did not seek a reduction in their sentences. 6 The Crown submits that the trial judge erred in determining appropriate sentences and seeks to have the sentences varied: (1) for Mr. Blok-Andersen, an increase from five and one-half years to seven to nine years for trafficking in cocaine, and from one and one-half years to five years for acting for the benefit of a criminal organization, for a total of twelve to fourteen years imprisonment; and (2) for Mr. Strongitharm, an increase from four years to six to eight years for trafficking in cocaine, and from one and one-half years to four years for acting for the benefit of a criminal organization, for a total of ten to twelve years imprisonment. (Reference to the “Offenders”, below, means Mr. Blok-Andersen and Mr. Strongitharm together.)

Issues 7 In addition to the question of leave to appeal, the issues engage consideration of 172 CRIMINAL REPORTS 27 C.R. (7th)

(1) The interplay among Criminal Code provisions regarding sentences imposed for the offence of acting for the benefit of a criminal organization and the predicate offence of drug trafficking; (2) The discretion available to the judge in finding facts necessary and relevant to determining a sentence where there was a conviction by a jury; and (3) The imposition of restrictions on eligibility for parole.

Analysis Leave to Appeal 8 Leave to appeal is required because these are appeals by the Crown as to sentence only (section 676(1)(d) of the Criminal Code). The test to be applied is whether the appeal is “frivolous in the sense of having no ar- guable basis or sufficient merit” (R. v. B. (A.), 2015 NLCA 19, 365 Nfld. & P.E.I.R. 160 (N.L. C.A.), at paragraph 15; R. v. Kane, 2012 NLCA 53, 325 Nfld. & P.E.I.R. 78 (N.L. C.A.), at paragraph 2). At the hearing, given the issues discussed below, the Court concluded that this test was met and leave to appeal was granted.

Relevant Legislation 9 Section 724(2) of the Criminal Code provides for a trial judge to make findings of fact necessary for sentencing purposes where there was a trial by jury: Where the court is composed of a judge and jury, the court (a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact. The Crown submits that the trial judge erred by failing to make necessary findings of fact under paragraph (b). 10 Section 467.12 of the Criminal Code is one of three related provisions dealing with offences involving recruitment, membership in and acting for a criminal organization. “Criminal organization” is defined in section 467.1 to mean: ... a group, however organized, that R. v. Blok-Andersen B.G. Welsh J.A. 173

(a) is composed of three or more persons in or outside Canada; and (b) has as one of its main purposes or main activities the facilita- tion or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group. It does not include a group of persons that forms randomly for the immediate commission of a single offence. 11 Section 467.12, the relevant charge in this appeal, deals with acting for the benefit of a criminal organization: (1) Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. (2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that the accused knew the identity of any of the persons who constitute the criminal organization. (Emphasis added.) The maximum sentence is fourteen years imprisonment. 12 It is important to distinguish that provision from sections 467.11 and 467.13. Section 467.11 relates to recruiting members for a criminal organization: Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence ..., recruits, solicits, encourages, coerces or invites a person to join the criminal organization, is guilty of an indictable offence ... (Emphasis added.) The maximum sentence is five years imprisonment. 13 Section 467.13 applies to a member of a criminal organization: Every person who is one of the persons who constitute a criminal organization and who knowingly instructs, directly or indirectly, any person to commit an offence... for the benefit of, at the direction of, or in association with, the criminal organization is guilty of an indictable offence ... (Emphasis added.) 174 CRIMINAL REPORTS 27 C.R. (7th)

The maximum sentence is life imprisonment. 14 Section 467.14 requires the imposition of a consecutive sentence where a person is convicted of offences involving a criminal organization: A sentence imposed on a person for an offence under section ... 467.12 ... shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under any of those sections. 15 Section 718.2(a)(iv) specifies that acting for the benefit of a criminal organization constitutes an aggravating factor for purposes of sentencing: A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, ... (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, ...

Findings of Fact under Section 724 of the Criminal Code 16 The principles to be applied when a judge imposes sentence following a conviction by a jury are discussed in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 (S.C.C.). First, the judge must accept as proven those facts essential to the conviction (section 724(2)(a) of the Criminal Code). As to section 724(2)(b) of the Code, McLachlin C.J.C., for the Court, explained: [18] Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts .... In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities .... It follows from R. v. Blok-Andersen B.G. Welsh J.A. 175

the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues. (Emphasis added.) See also: R. v. Murphy, 2011 NLCA 16, 304 Nfld. & P.E.I.R. 266 (N.L. C.A.). 17 In this case, the trial judge made the following findings of fact under section 724(1) of the Criminal Code: (1) The existence of a criminal organization was proven; (2) A criminal organization operated in St. John’s and area from Sep- tember 3, 2009 to January 12, 2010; (3) The police gathered evidence from stash houses where significant quantities of cocaine and money were stored; (4) Mr. Strongitharm was seen entering and leaving stash houses throughout September and October 2009, while Mr. Blok-Ander- sen was seen entering a stash house on January 10, 2010; (5) Significant amounts of money were transferred from St. John’s to British Columbia using banks and checked airline baggage, and “the combined totals of the sums being transferred amounted to almost $500,000, $195,000 of which was seized by police”; and (6) The motive for the venture was financial gain, with no indication of serious addiction issues by any of the parties. (Decision of the trial judge, 2014 NLTD(G) 141, 358 Nfld. & P.E.I.R. 211 (N.L. T.D.), at paragraph 58.) 18 The judge found that, for purposes of sentencing, it was not necessary to determine who were members of the organization. She explained: [58] ... The Crown did not charge these offenders under section 467.13 nor did it attempt to show membership in a charge under 467.11. In the result, I decline to make a finding that Peter Blok-Andersen and Ben Strongitharm were members of the criminal organization. This is not to say that their roles in the commission of the predicate offences cannot be considered in this sentencing. 19 The Crown asked the judge to find that: (1) the criminal organization was a highly sophisticated organization; (2) Mr. Blok-Andersen was the directing mind between September 2009 and January 2010; and (3) the 176 CRIMINAL REPORTS 27 C.R. (7th)

group or members were prepared to resort to violence, and that Mr. Blok- Andersen, in particular, resorted to threats of violence to keep other members of the organization under control. In response, the trial judge found: [60] In answer to the foregoing requests, I find: (1) The criminal organization was a relatively sophisticated one dealing in multi-kilograms of cocaine. (2) I decline to find Peter Blok-Andersen was the directing mind behind the drug operation carried out between September 2009 until the takedown on January 12th, 2010. Peter Blok- Andersen is charged with possession for the purpose of trafficking on January 11th and 12th, 2010 and is neither charged in respect of drug offences occurring between September and December 2009 nor membership in a criminal organization. His role in January, 2010, is relevant and is considered hereafter. (3) There is no evidence that Peter Blok-Andersen resorted to violence in the commission of possession for the purpose of trafficking on January 11th, 12th, 2010. He did, however, threaten violence towards others involved in the criminal venture .... Insofar as Ben Strongitharm is concerned the evidence at trial indicated an individual, who appeared to be Ben Strongitharm gestured to another individual during an encounter .... The Crown says the gesture which amounted to some finger pointing suggested violence. I conclude the evidence is insufficient for me to make such a determination. Accordingly, in respect to the drug charges for which Peter Blok-Andersen and Ben Strongitharm have been found guilty, violence cannot be considered as an aggravating factor in the sentencing of Ben Strongitharm. Threatening violence will form part of my considerations in the sentencing of Peter Blok-Andersen. 20 For convenience, I will first address the appeal regarding Mr. Blok- Andersen’s sentence. Much of the analysis will also apply to the Strongitharm appeal.

Mr. Blok-Andersen 21 The Crown submits that the judge erred by refusing to find that Mr. Blok-Andersen was the “directing mind” of a criminal organization for the period of September 2009 to January 2010. The judge’s underlying rationale was that Mr. Blok-Andersen was charged with acting for the R. v. Blok-Andersen B.G. Welsh J.A. 177

benefit of, in contrast to membership in, a criminal organization, and that the predicate offence related only to the January events. 22 Being the directing mind of a criminal organization presupposes membership in that organization, or in the language of section 467.13, being “one of the persons who constitute a criminal organization”. (See: R. c. Venneri, 2012 SCC 33, [2012] 2 S.C.R. 211 (S.C.C.), at paragraph 25.) Since Mr. Blok-Andersen was not charged under section 467.13, it is necessary to determine whether facts that would support a charge under that section are relevant to sentencing under section 467.12. There are two components to the analysis: first, the operation and effect of section 725 of the Criminal Code; and second, the characterization of Mr. Blok-Andersen’s role in the context of the factual circumstances. 23 Section 725(1) of the Criminal Code addresses the use of related offences in imposing a sentence: In determining a sentence, a court ... (c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge. Section 725(2) addresses the effect of applying section 725(1)(c): The court shall, on the information or indictment, note ... (b) any facts considered in determining the sentence under paragraph (1)(c), and no further proceedings may be taken with respect to any offence ... disclosed by those facts unless the conviction for the offence of which the offender has been found guilty is set aside or quashed on appeal. 24 These provisions are discussed in R. c. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762 (S.C.C.). Fish J., for the Court, drew the following conclusions: (1) In general, persons may be punished only for offences for which they have been convicted. Section 725(1)(c) provides a limited exception to this rule; (2) Considering facts that could constitute the basis for a separate but uncharged offence under section 725(1)(c) falls within the discretion of the judge; (3) The decision by a judge to apply section 725(1)(c) does not require the agreement of either the Crown or the defence. Fish J. 178 CRIMINAL REPORTS 27 C.R. (7th)

emphasized that the application of section 725 “remains at all times subject to the sentencing judge’s discretion” (paragraph 38). 25 Section 725(1)(c) was not considered in the court below, nor did counsel raise it in this Court. However, at the instance of this Court, counsel were given the opportunity to make submissions on the provision and related case authority. 26 The Larche decision discusses principles of statutory interpretation relevant to two issues engaged by this appeal: first, the effect of section 725(1)(c) where the charge is under section 467.12 and the Crown seeks to rely on facts relevant to section 467.13; and second, the interplay among sections 725(1)(c), 718.2(a)(iv) and 467.14. 27 Of general application in this appeal, Fish J. emphasized fundamental principles when interpreting and giving effect to section 725(1)(c): [22] ... Section 725(1)(c) and s. 725(2) are best understood not by looking to past cases but by considering their plain terms, their evident purpose, and their relationship not only to the rest of s. 725 but also to other provisions of Part XXIII of the Criminal Code and to the scheme of the Criminal Code as a whole. 28 On the question of double punishment, Fish J. wrote: [26] Second, s. 725(2) then protects the accused from being punished twice for the same offence; incrementally, as an aggravating circumstance in relation to the offence charged, and then for a second time should a separate charge subsequently be laid in respect of the same facts. ...

Sections 725(1)(c), 467.12 and 467.13 29 In Larche, Fish J. pointed to the discretionary nature of section 725(1)(c) which, when applied, engages the mandatory application of section 725(2): [32] As appears from the plain wording of both provisions, s. 725(1)(c) and s. 725(2), read together, are at once discretionary and mandatory. Discretionary, because courts may — not must — consider the facts that could support other charges; mandatory, because if they do, they must — not may — note on the record that they have done so. [Italics in the original.] 30 The Crown submits that this provision is not relevant because the question of leadership of and membership in the organization is simply a part of the factual context for the charge under section 467.12. This is an over simplification. R. v. Blok-Andersen B.G. Welsh J.A. 179

31 The specification of three separate offences, with differing levels of seriousness, indicates Parliament’s intention that membership in a criminal organization and the related question of leadership is to be considered separately from acting for the benefit of, or recruiting members for, a criminal organization. Where the Crown chooses to charge one offence, in this case, acting for the benefit of an organization, the incorporation of facts proving another of the three offences engages the operation of section 725(1)(c). That is, the trial judge has discretion to consider facts related to another of the section 467 provisions, but must make a note to that effect on the record if that discretion is exercised. 32 In this case, the trial judge exercised her discretion not to consider facts that would fall outside the scope of section 467.12. Indeed, she indicated that, if the Crown alleged that the Offenders were members of a criminal organization, that charge should have been laid. In Larche, Fish J. recognized: [39] It is true that prosecutorial discretion in the laying of charges will not lightly be interfered with by the courts. But proceedings cannot be delayed abusively to increase punishment .... Nor can offences be artificially fractioned in the pursuit of a like objective. 33 While the judge did not refer to section 725 of the Criminal Code, her reasons, discussed above, demonstrate that she was exercising discretion as authorized under that section when she refused to find as a fact, for purposes of sentencing, that Mr. Blok-Andersen was a directing mind of a criminal organization from September to December 2009. There is no basis on which to interfere with the exercise of that discretion based on section 725.

Section 724 34 That said, the focus of counsels’ submissions for purposes of sentencing was section 724. Applying that provision, the judge was required to accept findings of fact essential to the jury’s verdict. The charge under section 467.12 in the indictment fails to separate the two Offenders. Both were charged that “on or between” September 3, 2009 and January 12, 2010, they committed an unlawful offence “for the benefit of, at the direction of, or in association with a criminal organization”. Mr. Strongitharm was charged with drug trafficking offences in September and October as well as in January. Mr. Blok-Andersen was charged with drug trafficking only “on or about the 11th and 12th days of January, A.D., 2016”. 180 CRIMINAL REPORTS 27 C.R. (7th)

35 Regarding Mr. Blok-Andersen’s conviction for the section 467.12 charge, the essential facts were that he trafficked in cocaine on or about January 11 or 12, 2010 for the benefit of a criminal organization. There was no underlying charge that would have required the jury to find that he was trafficking for the benefit of a criminal organization for the other dates specified in the 467.12 charge. By contrast, those dates clearly applied to Mr. Strongitharm who was charged with additional drug trafficking offences in September and October. In short, it was not essential for the jury to find that Mr. Blok-Andersen was acting for the benefit of a criminal organization other than on the January dates. 36 Nonetheless, the judge exercised her discretion to make additional factual findings. In this context, she turned, among other things, to the joint submission on sentencing proffered by the others who were involved in the same enterprise: [71] As set out at paragraph 33 of this decision five other individuals involved in Operation Razorback were sentenced all by joint submission, although Green had gone to trial and was convicted. I have received from counsel the agreed statement of facts used in the joint submission tendered for Evan Brennan-Smith. I have read the court’s decision in R. v. Green (2010), 302 Nfld. & P.E.I.R. 237 (N.L. Prov. Ct.) and R. v. R.Z. (Zanolli), 2012 YKSC 2. I have throughout this trial had the benefit of hearing much of the evidence forming the foundation upon which the joint submissions are based. Accordingly, I am in a position to assess the parallels between the offenders sentenced by joint submission and the two offenders in this case. 37 Mr. Brennan-Smith was convicted of multiple charges involving cocaine and cannabis, two criminal organization offences and a money laundering charge. The judge was satisfied: [72] ... The evidence both in the agreed statement of facts as well as evidence called before me clearly shows [Mr. Brennan-Smith] was the organizational man on the ground in Newfoundland and Labra- dor. ... He was a consistent and instrumental person in the unlawful ventures. [73] ... In January of 2010 Peter Blok-Andersen, as can be seen from the communications log, directed Evan Brennan-Smith as to the manner in which he was carrying out his criminal activities and expressed dissatisfaction with how certain matters had transpired. In the hierar- chy of authority he ranked above Evan Brennan-Smith for this period of time, being the only period relevant to the predicate offence. R. v. Blok-Andersen B.G. Welsh J.A. 181

38 The judge concluded: [76] ... Mr. Blok-Andersen acted in a supervisory and/or directive role over Evan Brennan-Smith, Ben Strongitharm, Zach Hill and An- drew Green throughout January, 2010 leading up to the takedown on January 12th, 2010. He was the directing mind in ensuring the transport of the cocaine from British Columbia, its distribution and receipt of monies on sale. 39 In comparing Mr. Blok-Andersen with Mr. Brennan-Smith, the judge recognized that Mr. Brennan-Smith was charged with multiple counts for events occurring between September 2009 and January 2010, including two criminal organization offences and money laundering. This was in contrast to Mr. Blok-Andersen’s situation in which there was one criminal organization offence, restricted to the events of January 2010. The judge gave reasons for declining to find that Mr. Blok-Andersen had been a directing mind of the organization for the period of September to December 2009. As discussed above, there is no basis for concluding that she erred in exercising her discretion to limit her findings of fact with respect to Mr. Blok-Andersen to the January events. 40 In further comparing Mr. Blok-Andersen to Mr. Brennan-Smith, the judge found that the latter’s guilty pleas had minimal mitigating effect because he knew the evidence against him was strong and an acquittal was unlikely. In addition, Mr. Brennan-Smith “played a significant and key role” in managing the venture in this Province over the whole of the four-month timeframe while Mr. Blok-Andersen’s charges were limited to the January events (paragraph 80). 41 In sentencing Mr. Blok-Andersen, the judge found, as aggravating factors, the large quantity and type of drugs seized on January 12, 2010, estimated to be approximately fifteen kilograms of cocaine; threats of violence made by Mr. Blok-Andersen against others involved in the enterprise; and the fact the offence was committed for the benefit of a criminal organization (section 718.2(a)(iv) of the Criminal Code, discussed below). 42 As to mitigating factors, the judge considered several positive character references as well as Mr. Blok-Andersen’s apology in court and expression of remorse for the harm done to society. For more than four years he had adhered to conditions imposed when he was granted judicial 182 CRIMINAL REPORTS 27 C.R. (7th)

interim release. While Mr. Blok-Andersen had a criminal record, the judge noted: [37] ... The last offence occurred in 2005. The only related offence is one of simple drug possession in 2002. ... 43 The judge also considered the range of sentence: [83] The range of sentencing applicable to Peter Blok-Andersen is found in the Newfoundland cases cited by the Crown, R. v. Kane, R. v. Payne, and the joint submission sentences of the co-actors in their criminal enterprise. For the drug offence, Count 2, the comparable range of sentence is between 2 and 7 years. For the criminal organization offence it is between 1 and 3 years. I note that where 3 years was imposed in respect of the co-actors they had been charged with more than one criminal organization offence. 44 Based on the above, the judge imposed a total sentence of seven years imprisonment comprised of five and one-half years for possession for the purpose of trafficking on January 11 and 12, 2010, and one and one-half years for the criminal organization offence, with credit for time on re- mand to be deducted. In addition, she ordered that Mr. Blok-Andersen must serve one-half of the sentence imposed for the criminal organization offence. 45 In assessing whether the judge erred, since she also considered the application of section 718.2(a)(iv) in determining an appropriate sentence for the drug trafficking offence, it is necessary to analyze the interplay between that section and section 467.14.

Sections 718.2(a)(iv) and 467.14 46 The question of possible double punishment arises where the application of section 467.14 is engaged along with section 718.2(a)(iv). That is, the combination engages the interplay between requiring a consecutive sentence for a criminal organization offence and use of the same facts and reason as an aggravating factor in sentencing on the predicate offence. 47 In Larche, in the context of section 725 of the Criminal Code, Fish J. refers to the discretion available under section 718.2: [33] In my view, the discretion afforded judges by s. 725(1)(c) is not trumped by s. 718.2, which enumerates principles of sentence that courts “shall ... take into consideration”. One of these principles, set out in s. 718.2(a), is that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances”. R. v. Blok-Andersen B.G. Welsh J.A. 183

Though framed in mandatory terms — “shall” and “should” — s. 718.2 must be read in its entire context and in its grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: see 65302 British Colum- bia Ltd. v. Canada, [1999] 3 S.C.R. 804, at para. 50. 48 Further, with respect to the language in section 718.2 that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances”, Fish J. cautioned: [35] Taking this principle into consideration does not require the court to apply it without regard to the other principles of sentencing set out in the Code or in binding decisions of the courts. Nor does it override s. 725. 49 A principle that may be drawn from Fish J.’s analysis is that section 718.2 does not restrain the trial judge’s exercise of discretion not to consider an aggravating circumstance where the situation warrants. For example, in R. v. Smith, 2006 SKQB 137, [2006] 9 W.W.R. 317 (Sask. Q.B.), affirmed 2008 SKCA 20 (Sask. C.A.), Zarzeczny J. explained: [65] With respect to the criminal organization charges set out in Counts 6 and 7 of the Indictment, the Court firstly observes that any sentence imposed in respect of these offences must be consecutive as mandated by Parliament in s. 467.14 of the Criminal Code. The Court has already observed that committing a crime for the benefit of a criminal organization is considered to be an aggravating factor, both with respect to the sentencing principles contained in s. 718 of the Criminal Code and s. 10 of the CDSA. The Court has not, however, approached its sentencing with respect to Counts 2 and 4 of the Indictment [drug trafficking] taking this aggravating factor into account since that factor is directly addressed by virtue of the charges proffered against the defendant in Counts 6 and 7 of the Indictment. (Emphasis added.) 50 This interpretation of section 718.2(a)(iv) is consistent with the principle that an offender should not be punished twice for the same reason. Further, this interpretation does not render section 718.2(a)(iv) ineffec- tive since there will be circumstances in which acting for the benefit of a criminal organization may be taken into account as an aggravating factor. For example, the Crown may not have charged an offender with a section 467 offence, though the facts establish beyond a reasonable doubt that the offence was committed for the benefit of, at the direction of, or in association with a criminal organization. 184 CRIMINAL REPORTS 27 C.R. (7th)

51 A contrary view was adopted by the Ontario Court of Appeal in R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280 (Ont. C.A.), in which the Court opined: [323] Where, as here, there is evidence before a sentencing judge that an offence was committed for the benefit of a criminal organization, Parliament has decreed such evidence shall be considered as an aggravating circumstance on sentencing: Criminal Code, s. 718.2(a)(iv). By reason of s. 467.14 of the Criminal Code, Parlia- ment has also directed that a s. 467.12 sentence must be served consecutively to any other punishment imposed on the offender for an offence arising out of the same event or series of events and to any other sentence to which the offender is subject at the time when the s. 467 sentence is imposed. [324] Brunet essentially invites this court to read s. 718.2(a)(iv) as applying only where no s. 467 conviction has occurred. In other words, on Burnet’s interpretation of the interplay between ss. 718.2(a)(iv) and 467.14, evidence of conduct supporting a s. 467.12(1) offence is an aggravating circumstance on sentencing only in the absence of a s. 467 conviction. [325] This interpretation must be rejected. There is nothing in the language of s. 718.2(a)(iv) to support this narrow construction. Bru- net was unable to point to any authority or principled rationale for confining the application of s. 718.2(a)(iv) to cases involving only non-criminal organization offences. And s. 467.14 is clearly not restricted to situations where only a s. 467 conviction is at issue: s. 467.14 specifically applies when convictions in addition to a single s. 467 conviction are in play. [326] In our view, a plain reading of s. 718.2(a)(iv) confirms that evidence an offence was committed in association with or for the benefit of a criminal organization is an aggravating factor on sentencing for non-criminal organization offences, even when the offender is also convicted of a s. 467 offence. Like any other statutory aggravating circumstance, it is but one of many factors to consider when fash- ioning an appropriate sentence. 52 This analysis fails to take into account the principles discussed in Larche, and in particular, the discretion inherent in section 718.2(a)(iv). Accordingly, I would not adopt the analytical approach set out in Beauchamp. 53 That said, there are different approaches that may be taken in sentencing an offender for a conviction under section 467.12 and for the predicate offence while avoiding double punishment. (A helpful discussion of R. v. Blok-Andersen B.G. Welsh J.A. 185

alternative approaches is found in R. v. Evans, 2013 ONSC 7003 (Ont. S.C.J.), at paragraphs 146 to 152.) In Smith, the Court accepted that punishment for the section 467.12 offence was dealt with under section 467.14 with a consecutive sentence, and that it would be unfair to also apply section 718.2(a)(iv). 54 Alternatively, a court may attempt to apply both sections 467.14 and 718.2(a)(iv) by reducing the sentence for both the section 467 offence and the predicate offence to which section 718.2(a)(iv) would apply. I would reject this option because it may lead to skewing the development of the case law unless the judge specified a sentence for each offence as well as the reduction that was applied to each in order to avoid double punishment. 55 Because section 467.14 requires the imposition of a consecutive sentence and since discretion is available under section 718.2(a)(iv), the preferred approach is that taken in Smith. This approach maintains the integrity of the sentencing scheme under the Criminal Code. That is, the sentence for the section 467.12 offence addresses punishment for acting for the benefit of a criminal organization. Imposing a consecutive sentence under section 467.14 leaves no room for additional punishment for the same reason under section 718.2(a)(iv). 56 In this case, the judge did not address this issue. However, in sentencing for the predicate offence, trafficking in cocaine, along with the other factors referenced above, she indicated that section 718.2(a)(iv) was taken into account, but accorded “minimal weight because the offenders are being sentenced under Count 1 [section 467] consecutive to the predicate offences” (paragraph 69). 57 In considering an appropriate range of sentence for the drug trafficking offence, the judge referred to the decision in R. v. Kane, supra, in which this Court determined: [48] ... An offender like Mr. Kane who, for the purpose of monetary gain, has played an active, trusted and necessary role in a sophisticated, commercial level conspiracy to traffic in significant amounts of cocaine, should expect a sentence in the range of four years imprisonment. The risk associated with such criminal activity is a sentence of that length. ... 58 This principle was applied by the judge in this case. To the extent that the sentence of five and one-half years reflects Mr. Blok-Andersen’s supervisory role in respect of the January events, the threat of violence and the application of section 718.2(a)(iv), taken together with the mitigating 186 CRIMINAL REPORTS 27 C.R. (7th)

factors outlined above, this sentence falls within, but at the high end of the range. 59 In addition to the sentence for the drug trafficking offence, Mr. Blok- Andersen was sentenced to one and one-half years imprisonment for the section 467.12 offence, to be served consecutively. This sentence is less than the two to three year sentences imposed on the offenders who pleaded guilty. However, the trial judge distinguished those cases particularly on the basis that those offenders had each been charged with more than one criminal organization offence and multiple predicate offences. As outlined above, there were several mitigating factors in Mr. Blok- Andersen’s case and he was found to have had a supervisory role limited to the enterprise carried out in January 2010. 60 Given these factors, taken in the context of the judge’s decision as a whole, the sentence imposed for the section 467.12 offence was at the high end of the range. However, Mr. Blok-Andersen did not request a reduction in either of the sentences or in the total sentence of seven years imprisonment. While the judge did not apply the preferred approach to sections 467.14 and 718.2(a)(iv) outlined above, there is no basis on which to conclude that she erred by failing to consider relevant facts or principles of law. 61 In the result, while the individual and total sentences imposed on Mr. Blok-Andersen are at the high end of the range of appropriate sentences, the judge did not err in the exercise of her discretion. I would dismiss the Crown’s appeal.

Mr. Strongitharm 62 In determining an appropriate sentence for Mr. Strongitharm, the judge relied on the findings of fact discussed above. She concluded that his role in the enterprise was similar to that played by Mr. Kane in R. v. Kane, supra: [86] ... For ease of reference paragraph 11 [of Kane] states: 11 As a member of the conspiracy, Mr. Kane did more than carry drugs as in the case of a courier and more than act as a conduit for the drugs and money. He was responsible for setting up and maintaining a stash house, and for seeing to the distribution of large amounts of drugs. He delivered drugs to traffickers, instructing them on how the drugs were to be mixed with cutting agents to obtain a specified number of portions to be sold to other traffickers R. v. Blok-Andersen B.G. Welsh J.A. 187

or to purchasers. He had responsibility for and was trusted with significant sums of money. [87] The aggravating factor in Ben Strongitharm’s case, like Peter Blok-Andersen, is the type and quantity of the drugs in his possession and/or trafficked by him. Considering September and October, 2009 as well as January, 2010 the quantity of cocaine attached to his involvement would be somewhat greater than 15 kilos. The drug offences were committed for the benefit of, at the direction of, or in association with a criminal organization, an aggravating factor to be given some minimal consideration in light of Count 1 [ section 467.12]. 63 The judge considered that Mr. Strongitharm was a first-time offender, was aged twenty-four at the time of commission of the offences, and appears to have matured while on judicial interim release. Several letters attesting to his good character were proffered and he had apologized for his misdeeds. 64 The judge rejected the Crown’s submission that Mr. Strongitharm’s role and criminal activity were comparable to those of Mr. Brennan- Smith. She explained: [73] The Crown suggests that the actions of Ben Strongitharm are comparable to those of Evan Brennan-Smith. I do not agree with this characterization. Ben Strongitharm through the months of September and October was regularly in the company of Evan Brennan-Smith and was seen both entering and exiting stash houses with him and meeting with individuals known to be involved in the drug trade. He did not rent stash houses, drive any of the motor vehicles and only accessed one stash house on one occasion by himself. I conclude he had a less prominent role than Evan Brennan-Smith in September and October, 2009. Insofar as the January events are concerned the evidence satisfies me Ben Strongitharm acted as courier in transport- ing drugs from British Columbia to Newfoundland and Labrador in the Toyota Cruiser ultimately found at 224 Anchorage Road. 65 Having considered the evidence and relevant principles of sentencing, the judge imposed a sentence of four years imprisonment for each drug trafficking offence, to be served concurrently. This sentence is consistent with the discussion of the range of sentence in Kane. The judge indicated that, while she did consider acting for the benefit of a criminal organization under section 718.2(a)(iv), she gave it minimal weight given the conviction under section 467 and the requirement for a consecutive sentence under section 467.14. 188 CRIMINAL REPORTS 27 C.R. (7th)

66 As to section 467.12, Mr. Strongitharm received the same sentence as Mr. Blok-Andersen. This was at the high end of the range taking into account that, unlike Mr. Strongitharm, Mr. Blok-Andersen had exercised a level of supervision in the January enterprise. However, the judge balanced this against Mr. Strongitharm’s longer involvement, including trafficking offences in September and October 2009. 67 In summary, the judge gave reasons for exercising her discretion in determining factors relevant to the sentences imposed on Mr. Strongitharm. She did not err in principle or in law in making the findings of fact, and applying the limitations, which she did. The sentences imposed were not outside the appropriate range. Accordingly, I would dismiss the Crown’s appeal.

Serving One-half of the Sentence for the Section 467.12 Offence 68 Restrictions on eligibility for parole are set out in section 743.6(1.2): Notwithstanding section 120 of the Corrections and Conditional Re- lease Act, where an offender receives a sentence of imprisonment of two years or more ... on conviction for ... an offence under section ... 467.12 ... the court shall order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence .... 69 In these appeals, section 743.6(1.2) is not engaged because the sentences do not satisfy the minimum two year requirement. Accord- ingly, the judge erred when she applied this provision. As a consequence, the order must be amended to remove “Service of one-half of the sentence imposed for Count 1 before release on full parole”.

Summary and Disposition 70 In summary, leave to appeal having been granted at the hearing, the sentences imposed by the trial judge on both Mr. Blok-Andersen and Mr. Strongitharm fall within an appropriate range. The judge did not err in the exercise of her discretion regarding findings of fact following convictions by a jury. 71 However, the judge erred by imposing parole ineligibility under section 743.6(1.2) of the Criminal Code. Accordingly, that portion of the orders must be set aside. 72 In the result, I would dismiss the appeals against the sentences imposed on Mr. Blok-Andersen and Mr. Strongitharm, except that the R. v. Blok-Andersen Rowe J.A. 189

words, “Service of one-half of the sentence imposed for Count 1 before release on full parole” shall be deleted from the sentences.

M. F. Harrington J.A.:

I Concur:

Rowe J.A.:

73 I have read the reasons of my sister Welsh. I agree with her concerning leave to appeal. I would adopt her statement of the facts. I would also adopt her reasons regarding parole ineligibility. 74 The Crown in its Factum set out the principal issues as follows: Whether the trial judge erred in law by declining [or] failing to make appropriate findings of fact consequent upon the jury’s verdict, and specifically erred: (a) by declining to consider whether the respondents were members of the criminal organization referenced in Count 1 of the indictment, for sentencing purposes; and (b) by declining to find whether respondent Blok-Andersen was a leader of the criminal organization referenced in Count 1 of the indictment, for sentencing purposes.

(a) Members of a Criminal Organization 75 The Crown takes the position that the evidence at trial proved beyond a reasonable doubt that Messrs. Blok-Andersen and Strongitharm were members of a criminal organization (as per s. 467.13) and that there was an obligation on the trial judge to so find and then treat this as an aggravating factor for the purposes of sentencing for the convictions under s. 467.12. I do not agree. 76 If the Crown wished to obtain convictions against Messrs. Blok-An- dersen and Strongitharm for being members of a criminal organization, they should have charged them under s. 467.13. But, the Crown did not. Rather, the Crown exercised its discretion to charge them with committing an indictable offence (drug trafficking) “for the benefit of, at the direction of, or in association with a criminal organization” as per s. 467.12. 77 While it is clear that pursuant to s. 725(1)(c) it is open to a judge to “consider any facts forming part of the circumstances of the offence that 190 CRIMINAL REPORTS 27 C.R. (7th)

could constitute the basis for a separate charge” (here s. 467.13), the sentencing judge is under no obligation to do so. In this regard, I would adopt Justice Welsh’s analysis at paragraphs 23 to 33 (relating to R. c. Larche [2006 CarswellQue 10372 (S.C.C.)], supra). 78 The foregoing is adequate to dispose of issue (a) set out above.

(b) Blok-Andersen as Leader of a Criminal Organization 79 To be leader of a criminal organization necessarily entails that one be a member of it. Thus, the Crown’s argument that the sentencing judge erred in law by failing to find that Mr. Blok-Andersen was the leader of a criminal organization can succeed only if the Crown succeeds on issue (a) above. 80 As I have already decided that the Crown’s arguments fail regarding issue (a), then logically the Crown must fail as well regarding issue (b). 81 The Crown has shown no legal basis to vary the sentences imposed on Messrs. Blok-Andersen and Strongitharm. 82 I agree with Justice Welsh in the result. Appeal allowed in part. R. v. Badali 191

[Indexed as: R. v. Badali] Her Majesty the Queen and Salvatore Joseph Badali, Defendant Ontario Superior Court of Justice Docket: 12-06456G 2016 ONSC 788 B. Glass J. Heard: December 7, 2015 Judgment: February 1, 2016 Charter of Rights and Freedoms –––– Cruel and unusual punishment [s. 12] –––– Mandatory minimum sentences for offences involving prostitutes under 18 violating s. 12 and of no force or effect — Sentences disproportionate in reasonable hypothetical situations. The accused was convicted of living on the avails of prostitution of a person under 18, procuring a person under 18 to become a prostitute, and obtaining sexual services from a person under 18. The accused challenged the minimum sentences of two years’ imprisonment for the living on the avails offence and six months’ imprisonment for the obtaining sexual services offence as contrary to ss. 7 and 12 of the Charter of Rights and Freedoms. The victim was a 16-year-old girl who was prostituted through the accused’s brothel over a three-day period. The accused also used the victim sexually and gave her some money in exchange. The complainant continued in the sex trade for some time after her involvement at the accused’s premises and described this as having a devastating impact on her. The accused had a lengthy criminal record, some of which involved violence. This was his first conviction for sexual or prostitution-related offences. Held: The application was allowed and the minimum sentences declared of no force or effect. The mandatory minimum sentences violated the Charter. The objective of the legislation was serious and important and that the mandatory minimums could be seen as an attempt to raise the floor of sentences for this offence in order to more effectively combat the problem of juvenile prostitution. The minimum sentences were not grossly disproportionate as applied to the accused. However, there were reasonable hypothetical situations in which the sentences would be disproportionate, such as one in which an offender received a three-month suspended sentence for running an escort agency. One could hypothesize a situation in which an 18-year-old accused recruits customers for his teenage girlfriend as their means of economic survival, or a young man pays for a kiss from a teenage 192 CRIMINAL REPORTS 27 C.R. (7th)

girl. These would be situations in which the application of the minimum punishment would be grossly disproportionate.

Comment

Purchasing sex from a teenage girl is a form of sexual exploitation. Knowingly pimping girls for profit is a serious crime that deserves a meaningful sanction. A Charter challenge to the minimum sentences of imprisonment introduced for these crimes thus deserves a full and careful analysis that is alive to the realities of the prostitution of girls. Reasonable hypotheticals should be selected carefully and not on the basis of imagined and far-fetched scenarios. While the court in Badali refers to the concerns raised about the potential scope of the living on the avails offence in Bedford (2013), 7 C.R. (7th) 1 (S.C.C.), it is important to note that none of the offences applying to victims under 18 were at issue in that case. The only case relied on in Badali as an example of a situation in which the minimum penalty would be grossly excessive is based on a case involving a woman running an escort agency involving adults. Leaving aside whether the suspended sentence in that case was appropriate, such a set of facts does not provide a good parallel for a case involving girls. It cannot be the case that an adult running an escort agency using minors could be described as “not exploitative,” or offering a “mutually beneficial working arrangement.” Such an accused would be facilitating the sexual exploitation of girls on a wide scale by multiple men, for financial gain, and should properly be given a custodial sentence. The other two examples offered by the court are not based on actual cases. This runs the risk that they are not reasonable, for example as in the postulation that there is a commercial market for the purchase of a single kiss. It may also lead to the creation of scenarios that minimize behaviour that should be understood as quite harmful. Many girls end up mired in prostitution through exactly the emotional manipulation described by the court in its other hypothetical – believing that they need to prostitute so that they and their boyfriend can pay the bills. It would have been preferable to look at actual cases involving minor victims to see if any of them could provide a reasonable basis for concluding that the minimum sentence was excessive. Janine Benedet Allard School of Law, University of British Columbia Cases considered by B. Glass J.: Bedford v. Canada (Attorney General) (2013), 2013 SCC 72, 2013 CarswellOnt 17681, 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 (S.C.C.) — followed R. v. Badali 193

R. v. A. (A.) (May 3, 2012), Doc. 1095/11, [2012] O.J. No. 6256 (Ont. S.C.J.) — considered R. v. Burton (2013), 2013 ONSC 3021, 2013 CarswellOnt 6983, [2013] O.J. No. 2423 (Ont. S.C.J.) — considered R. v. Dua (1999), 1999 CarswellOnt 4458, [1999] O.J. No. 5068 (Ont. S.C.J.) — referred to R. v. Francis (1995), 165 A.R. 109, 89 W.A.C. 109, 1995 CarswellAlta 542, [1995] A.J. No. 195 (Alta. C.A.) — considered R. v. Johnston (2000), 2000 CarswellOnt 3354, 136 O.A.C. 190, [2000] O.J. No. 3539 (Ont. C.A.) — referred to R. v. Morrisey (2000), 2000 SCC 39, 2000 CarswellNS 255, 2000 CarswellNS 256, [2000] S.C.J. No. 39, 36 C.R. (5th) 85, 148 C.C.C. (3d) 1, 191 D.L.R. (4th) 86, 259 N.R. 95, 77 C.R.R. (2d) 259, [2000] 2 S.C.R. 90, 187 N.S.R. (2d) 1, 585 A.P.R. 1, REJB 2000-20235 (S.C.C.) — considered R. v. Nur (2015), 2015 SCC 15, 2015 CSC 15, 2015 CarswellOnt 5038, 2015 CarswellOnt 5039, [2015] S.C.J. No. 15, [2015] A.C.S. No. 15, 469 N.R. 1, 18 C.R. (7th) 227, 322 C.C.C. (3d) 149, 385 D.L.R. (4th) 1, 332 O.A.C. 208, [2015] 1 S.C.R. 773, 332 C.R.R. (2d) 128 (S.C.C.) — followed R. v. Oakes (1986), [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, 65 N.R. 87, 14 O.A.C. 335, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 19 C.R.R. 308, 1986 Cars- wellOnt 95, 1986 CarswellOnt 1001, [1986] S.C.J. No. 7, EYB 1986-67556, 53 O.R. (2d) 719 (note) (S.C.C.) — considered R. v. Simmons (2005), 2005 NSCA 39, 2005 CarswellNS 101 (N.S. C.A.) — considered R. v. Slater (2004), 2004 SKQB 301, 2004 CarswellSask 519, 252 Sask. R. 81 (Sask. Q.B.) — referred to R. v. Wilson (1998), [1998] O.J. No. 5367, 1998 CarswellOnt 5566 (Ont. C.A.) — referred to 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 s. 1 — considered s. 7 — considered s. 12 — 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 — considered Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 212(1)(d) — considered s. 212(2) — considered s. 212(4) — considered 194 CRIMINAL REPORTS 27 C.R. (7th)

s. 486.4 [en. 2005, c. 32, s. 15] — considered

MOTION by accused for declaration that mandatory minimum sentences be of no force and effect.

Robert Scott, for Crown Gregory Lafontaine, for Defendant

B. Glass J.:

1 Mr. Badali was found guilty of living on the avails of prostitution of a female person under the age of 18 years, one count of procuring an under-18 year old female to prostitution, and one count of obtaining sexual services from a female person who was under the age of 18 years. The first and the third carried minimum custodial sentences. 2 Mr. Lafontaine moves for a declaration that these mandatory minimum sentences be of no force and effect because they infringe sections 7 and 12 of the Charter and that they are not saved by section 1 of the Charter. 3 The core foundation for the Defence application is that the sanctions are arbitrary and overbroad thereby offending section 7 of the Charter. In addition, the minimum terms of imprisonment are grossly disproportionate sentences in reasonably foreseeable cases. They violate sections 7 and 12 of the Charter and cannot be justified by section 1. There are less harmful ways to achieve the legislative goals of the legislation for these offences. 4 There have been other mandatory minimum sentences that have been challenged and found to be in contravention of sections 7 and 12 of the Charter. Those cases do not involve living on the avails of prostitution or engaging sexual services of a person who is younger than eighteen years.

Issues 5 What are proportionate sentences for sections 212(2) and (4) of the Code? 6 Are the minimum sentences grossly disproportionate for a fit and proportionate sentence for Mr. Badali? 7 Would the sentences be grossly disproportionate in reasonably foreseeable circumstances shown in a reasonable hypothetical example? R. v. Badali B. Glass J. 195

8 If the sentences are found to be cruel and unusual punishment depriv- ing a person of section 7 Charter rights to fundamental justice, are they saved by section 1 of the Charter?

Background 9 Section 212(2) of the Code establishes a minimum custodial sentence of two years with a maximum of fourteen years for anyone found to have lived wholly or in part on the avails of prostitution. 10 Section 212(4) of the Code carries a minimum sanction of six months imprisonment. 11 A Criminal Code section carrying a mandatory minimum sentence may be questioned on the basis that it carries a sanction that is cruel and unusual should it be grossly disproportionate for the Defendant being sentenced, i.e. Mr. Badali. An alternative is that the sentence might be challenged if such a sentence would be cruel and unusual on others if found to be reasonably foreseeable. The latter is a result of an inquiry of a reasonable hypothetical example. 12 On June 30, 2015, I released the judgment finding Mr. Badali guilty of the three counts. I include my summary of the evidence in paragraphs 13 to 33 below so that one can better understand the considerations for this application regarding the constitutional validity of sections 212 (2) and 212 (4) of the Criminal Code: 13 “The Defendant has been charged with offences pursuant to ss. 212(2), 212(1)(d) and 212(4) of the Criminal Code of Canada. In a nut- shell, he is accused of living on the avails of prostitution of a female person under the age of 18 years, procuring that under-18 year old person to become a prostitute, and obtaining sexual services of that under-18 year old person for consideration. 14 “Pursuant to section 486.4 of the Criminal Code, there is an order banning publication of the names and any information that might identify the complainant and female witnesses at this trial. People are shown in these reasons by initials. 15 “There is no issue that the complainant, T.S., was 16 years old at the time of the alleged offences in late July 2012. 16 “The Blue Pearl Spa is the name of the business at which the alleged activity occurred. The location of the spa was 3598 Dufferin Street, To- ronto, Ontario. T.S. who used the name Jessica applied for a job at this spa. She testified that she met with the Defendant who asked her for 196 CRIMINAL REPORTS 27 C.R. (7th)

identification but she said she did not have any with her because she was only 16. This was a job interview type of meeting. 17 “T.S. said that the girls working at the Blue Pearl Spa provided a variety of services ranging from some form of massage to performing oral sexual actions to sexual intercourse. The Defendant told her that she could determine how much she wanted to do with a customer. 18 “T.S. told the court that at that interview in the Defendant’s basement office at the spa he engaged in sexual intercourse with her and that he paid her some money for that experience; however, she did not remember how much she was paid. 19 “When a customer came to the spa without an appointment with a specific female attendant, the person working the front desk would call for the girls to come up from the lower level to be viewed by the customer. They would wear some clothing such as a bra, underpants, shoes and a top. They were not coming forward in full street clothing. 20 “The customer would announce whom he wanted to engage and they would go to a room that the customer had paid to rent. The customer paid at the front desk for the room. 21 “T.S. worked there for three days. In the room with a customer, she would engage in sexual intercourse. She would be paid separately by the customer. There were showers in each room for the customer to use. 22 “Rules for cleaning up the used room after completion of working with a customer required the female to clean the room and the shower and to dispose of any garbage including condoms. 23 “Failure to clean the room well was subject to being fined. Also, if a girl was late for work, she could be fined. The fines were shown on a list found at the Blue Pearl Spa by the police. This procedure was confirmed by T.S. 24 “Documents seized by York Regional Police Service showed names of female persons, dollar sums of money, references to fines and commissions and pay for managers. 25 “T.S. told the court that the girls would pay tips to the manager from money paid to them by customers. I interpret this to be commissions. F.K. was a former owner of the Blue Pearl Spa and worked at the spa for about two weeks during the summer of 2012. She had been a female friend of the Defendant and had lived with him previously. She was eva- sive about commissions as well as about the apartment above the spa, but she said the money handed in by the female persons working with cus- R. v. Badali B. Glass J. 197

tomers was placed into white envelopes and would be pushed through the mail slot for the apartment. The apartment was locked. 26 “When the police attended with a search warrant, they entered the apartment as well. In that apartment, the officers found many documents with the name of the Defendant and the Blue Pearl Spa noted. Other documents from such businesses as Canadian Tire were addressed to Salva- tore Badali at the Blue Pearl Spa. Some documents seized referred to the name of the Defendant as president of the Blue Pearl Spa. 27 “York Regional Police Service conducted surveillance of Mr. Badali at the residence where he lived. In addition, the police attended the apartment above the Blue Pearl Spa and also entered the spa. When Mr. Badali was observed coming out of the apartment, he had papers in his hand indicating he had brought them from the apartment. 28 “Within the spa, officers opened lockers in the lower level and found 85 condoms. Envelopes in the reception desk were located. 29 “One other woman, in addition to T.S., testified about working at the Blue Pearl Spa performing sexual acts with customers. That person did not engage in sexual intercourse but did hand jobs, which I interpret to mean that she performed masturbation of the male client customers. She was J.C. who worked at the spa for 2 months and did not use condoms because she did hand jobs but not sexual intercourse or oral sexual relations. One worked as a manager for 2 shifts and was told by Mr. Badali that he was the owner. She was S.S. and introduced female workers to clients who attended the Blue Pearl Spa. M.G. worked as an attendant and did not offer sexual services. She performed massages only. She did not see condoms at the Blue Pearl Spa. She assumed Mr. Badali was the owner but acknowledged that he never said he was the owner. Mr. Badali told T.S. that he was the boss at the Blue Pearl Spa. 30 “Mr. Badali was the person who interviewed people applying for jobs at the Blue Pearl Spa. One person understood he was the owner, another that he was the boss, and another assumed he was the owner. 31 “When Mr. Badali engaged in sexual intercourse with T.S., he had asked for identification and how old she was. She told him that she did not have identification with her. In fact, she had a driver’s licence, but she was only 16. She told the Defendant that she was 19. Mr. Badali did not ask T.S. for any additional information about her age. The Defendant engaged in sexual intercourse with T.S. and after the activity was com- pleted, he gave her some money but she did not know how much. 198 CRIMINAL REPORTS 27 C.R. (7th)

32 “Mr. Badali told T.S. to use condoms always. He said she could make a lot of money but did not say a specific amount. She understood she could earn $2,000 to $4,000 a week there. 33 “T.S. did not shower with customers, but the showers in the rooms were for the customers and for the girls. She performed sexual acts up to and including sexual intercourse.” 34 Paragraphs 13 to 33 provide the background summary for findings of guilt.

Position of the Defendant 35 Mr. Lafontaine submits that a mandatory minimum sentence for either of these counts falls into a grossly disproportionate range. The nature of the offences and the circumstances of Mr. Badali should be considered both as minimum sentences and separately as sentences for offences without mandatory minimum sentences. 36 For example, under section 212(2) before the addition of mandatory minimum sentences, sentences considered a range of sanctions. The age of victims, the length of the relationship, the amount of coercion and violence, and prior criminal record of a Defendant distinguish cases from each other. In R. v. Simmons, 2005 NSCA 39 (N.S. C.A.) at paragraphs 41 and 42, the court made observation of examples of a 9 year sentence in a case of young girls working for an offender who had a prior criminal record. In the alternative a 3 year suspended sentence for an adult woman without any prior record running an escort service and pleading guilty to living on the avails of prostitution of adults. The latter example did not involve exploitation, physical or sexual abuse, threats or forcible confinement, but rather demonstrated a mutually beneficial working arrangement. 37 With respect to section 212(4) of the Code, Mr. Lafontaine highlighted cases in which the sentences spanned a range of 90 days imprisonment to 2 years less a day. Those decisions considered personal circumstances of the person on trial and the nature, severity and frequency of the offending behaviour. Also, under-aged complainants already involved in prostitution or having been drawn into such activity by an accused person as well as abuse of a position of trust by an accused person were considered in those cases. See R. v. Johnston [2000 CarswellOnt 3354 (Ont. C.A.)], 2000 CanLII 16869, R. v. Dua, [1999] O.J. No. 5068 (Ont. S.C.J.), R. v. Wilson, [1998] O.J. No. 5367 (Ont. C.A.), and R. v. Slater, 2004 SKQB 301 (Sask. Q.B.) (CanLII). R. v. Badali B. Glass J. 199

38 Mr. Lafontaine emphasizes that with Mr. Badali’s case, there is no violence involved as there are in some such cases. Further, he submits that the relationship between Mr. Badali and T.S. cannot be viewed as exploitive. 39 Therefore, counsel for the Defendant suggests that the appropriate sentence for this case for section 212(2) is 6 months in custody and for section 212(4) it is 3 months. 40 Mr. Lafontaine relies on paragraph 39 of R. v. Nur, 2015 SCC 15 (S.C.C.) for the suggestion that the mandatory minimum sentences advanced in the Criminal Code for Mr. Badali would mean that he would be sentenced to four times the custodial sanction for section 212(2) and two times the custodial time for section 212(4) than what would be without mandatory minimum sentences here. If that analogy is correct, Mr. Lafontaine describes the sentences as more than just excessive or disproportionate. Rather, he submits that they are grossly disproportionate. 41 The Defence encourages the court to accept this analysis and in doing so to find that the mandatory minimum sentences contravene section 12 of the Charter. 42 With respect to a reasonable hypothetical analysis, Defence counsel says that the mandatory minimum sentences would be grossly disproportionate were they imposed on other persons, as distinct from Mr. Badali. Such an analysis considers a reasonably foreseeable application of the law taking into account the kind of conduct the law reasonably may be expected to catch. See paragraphs 59-62 in Nur, supra. 43 In Bedford v. Canada (Attorney General), 2013 SCC 72 (S.C.C.) at paragraph 142, the Supreme Court explored whether the law went too far and took away the security of people in a way not connected to the objective of the law. There, the law was to punish all who live on the avails of prostitution without distinguishing those who exploit prostitutes such as pimps and those who could enhance the safety and security of prostitutes such as legitimate drivers and bodyguards. The bottom line was that the law was too broad. It was grossly disproportionate. 44 Mr. Lafontaine suggests that sections 212(2) and 212(4) of the Code cannot stand up to a review of a reasonable hypothetical inquiry so that it contravenes section 12 of the Charter. 45 Even if these penalty sections are in contravention of section 12 of the Charter, one must also consider whether they survive by the provisions of section 1 of the Charter. The Crown has the burden of showing 200 CRIMINAL REPORTS 27 C.R. (7th)

that these sentences have a pressing and substantial objective and that the means chosen are proportional to such an objective. A law is proportionate if (1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effect of the law. That analysis is found at paragraph 111 of Nur, supra, when the Supreme Court referenced R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.). Chief Justice McLachlin in the same paragraph 111 of Nur, supra, stated “It will be difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionate under section 12 is proportionate as between deleterious and salutary effects of the law under section 1.”

Position of the Crown 46 On the other hand, the Crown submits that mandatory minimum sentences are valid constitutionally. They reflect Parliament’s intent to make sure that men do not live off the money made by teenage prostitutes or that men do not engage in sexual activity with teenage prostitutes for money or other consideration. 47 There is a history of legislation addressing the harm of such activities to teenagers from physical, psychological and emotional considerations. Bedford, supra, is one of the recent cases in which the Supreme Court has taken a serious and broad review of the objectives of legislation involving prostitution. 48 The Crown points out that mandatory minimum sentences have formed a major focal point for the Parliament of Canada seeking to reduce juvenile prostitution since 2005. 49 With respect to a section 12 test for gross disproportionality, the Crown disputes that these sentences are in this category of consideration. A mandatory minimum sentence is simply a forceful statement of government policy. Provided that Parliament does not invoke a policy of criminal sentences that is so excessive that it is grossly disproportionate, they do not contravene the constitutional norm in section 12 of the Charter. 50 Even though a sentence is excessive, it is not at the level of gross disproportionality automatically. Only if a sentence is so excessive that it outrages the standards of decency whereby Canadians would term it ab- horrent or intolerable might a sentence cross into constitutional forbidden territory. The cases of reaching such a level are rare. R. v. Morrisey, 2000 R. v. Badali B. Glass J. 201

SCC 39 (S.C.C.) at paragraph 26, the Supreme Court made this expression. 51 The bottom line is that a criminal sanction must be more than excessive or unfit before it is grossly disproportionate. 52 To determine gross disproportionality, there are two steps to take. First, the court decides whether the sanction is grossly disproportionate to the person being sentenced. Should the decision be that the sentence is not so to the defendant, then the court advances to decide whether the mandatory minimum sentence is grossly disproportionate to a reasonable hypothetical. 53 For the two offences here with mandatory minimum sentences, the Crown submits that proportionate sentences are two years for living on the avails of prostitution and one year consecutive for obtaining sexual services for consideration. These submissions are based on cases advanced by the Crown. The cases took into account denunciation and de- terrence when dealing with child related offences in which considerable harm may be inflicted upon the victims. The minimum sentences may be found to be within the range of sentences imposed before the mandatory sentences began and they are alleged by the Crown not to be grossly disproportionate. The Crown notes that the mandatory feature of these sentences naturally raises the bar for the bottom rung of the sentence ladder. 54 In R. v. Francis, [1995] A.J. No. 195 (Alta. C.A.), the Alberta Court of Appeal pointed to juvenile prostitution being a pressing social issue and that society sees a significant level of criminal culpability assigned to people who prey upon and victimize young people. 55 In R. v. Burton, [2013] O.J. No. 2423 (Ont. S.C.J.), Justice G. Trotter of the Superior Court of Justice in Ontario pointed out that juvenile prostitution carries with it the social ills and dangers associated with the dark and dangerous world of prostitution. 56 In R. v. A. (A.), [2012] O.J. No. 6256 (Ont. S.C.J.) at paragraph 32, Justice B.J. Wein identified persons living on the avails of prostitution as the lepers of the underworld and the decent world whereby pimps add to human degradation and are seen as on a position akin to child molesters. 57 The Crown’s reference to cases I have just mentioned points to the degree of seriousness of such illegal behaviour that Mr. Scott says shows a foundation for minimum sentences. 202 CRIMINAL REPORTS 27 C.R. (7th)

58 The Crown draws on alleged aggravating factors for Mr. Badali. Be- tween 1989 and 2006, Mr. Badali has 19 convictions, the victim was 16 years old when the offences occurred, has experienced a significant victim impact. The Victim Impact Statement points out that although she was involved with the spa for a few days, the experience greatly influenced her embracing the sex trade work at the age of 16 years. The victim states that after she was removed from the spa (by the police), she let herself be treated like an object for a long time. T.S. in her statement says that even today she cannot have a healthy, trusting relationship. She thought her purpose was limited to pleasing men. 59 When one takes into account a distinction between adult and juvenile victims, there is greater concern. That applies not only with this case but cases of this nature in general with similar circumstances.

Analysis 60 At the end of the thought process, one is faced with offences of great concern to the Parliament of Canada and to people in general living in Canada. Living on the proceeds of prostitution developed by the sexual activity of minor female sexual participants and engaging in sexual experiences with a minor female person certainly calls for more significant sanctions if one is found guilty. 61 It appears that historically the courts have imposed custodial sanctions which would not be considered to be minor. If the floor plan for mandatory minimum sentences raises the bottom level of sanction, one might not be surprised that the attention of people charged is caught. The same for the public at large. 62 Prior to the regime of mandatory minimum sentences, the sentences imposed by courts for these offences allowed for cases that were open to a lesser sentence. Those types of cases can become a hardship when an accused person falls into the category of not being contemplated by the drafters of the legislation. See R. v. Simmons (supra), R. v. Nur (supra), R. v. Oakes (supra) and Bedford v. Canada (Attorney General) (supra) provide excellent guidance to sentencing courts regarding mandatory minimum sentences.

Would the minimum sentences be over the top of acceptability for the public at large regarding Mr. Badali? 63 They might not be when one considers the nature of the offences, i.e. juvenile prostitution, the impact upon the victim in this case as shown in R. v. Badali B. Glass J. 203

her Victim Impact Statement, the commercial feature of making money from the victim’s sexual activity and paying her for sexual activity. 64 The Defendant has a lengthy criminal record of 19 convictions. Al- though none involve prostitution, they do include some violence. So, here is a person who has acted against the law considerably and who had shown a willingness to be violent. The violence in his criminal record includes forcible confinement, extortion and uttering threats in 1994 assault in 2003. Obstruction of police and attempt to obstruct justice occurred in 1995. There is one fail to comply with a recognizance. The last criminal conviction occurred in 2006 prior to these offences in 2012. 65 Although Mr. Badali did not conduct himself violently with the victim in this case, he still engaged a juvenile in the sex trade. This was not an accidental act. One is not left to think that he is just the person who was not contemplated when this legislation was created. The conclusion might be that he is not hard done bye for the minimum sanctions attached to two of these offences. In other words, the Defendant is not facing a minimum sentence that is over the ceiling of acceptability for him.

What about the second phase of consideration? 66 At the second phase, would such sentences be out of line for persons within a reasonably foreseeable hypothetical situation? I think so. The example in R. v. Simmons above in paragraph 36 wherein a woman received a 3 year suspended sentence for a section 212 (2) conviction is such an example. Further, I can think of a situation that would cause one to say that these two sections never contemplated particular persons. An- other example that comes to mind is a young couple who have encoun- tered hard times and conclude that their only salvation is if the female partner engages in sexual experiences for money and her male partner acts to draw in customers. And the female partner is under 18 years of age. She is the one to suggest this economic salvation. The male is arrested and charged with living on the avails of prostitution. In such a situation, the public might very well conclude that the framers of the law never intended the legislation to apply to the male partner. 67 For section 212(4) of the Code, another example is a young male paying for sexual services such as a kiss with a female person who is under 18 years of age. That appears to be beyond the intentions of the drafters of the legislation. 68 Mr. Badali is not in the category of this last hypothetical situation. 204 CRIMINAL REPORTS 27 C.R. (7th)

69 I interpret examples given by Mr. Lafontaine to be hypotheticals with reasonable foreseeability of gross disproportionality. Also, the examples I have referenced above in paragraph 38 fall within this consideration. 70 Within the guidance from the Supreme Court in R. v. Nur (supra), a section 12 Charter violation for cruel and unusual punishment is established. Hand in hand with that consideration is a section 7 denial of fundamental justice. Section 1 of the Charter cannot save the impugned sections here because they are far beyond acceptability to society. 71 Both of the sections fall within gross disproportionality such that there is a Charter infringement whereby both minimum sentences cannot stand.

Conclusion 72 Having found that the mandatory minimum sentences for both sections 212(2) and 212(4) of the Criminal Code cannot stand, I invoke section 52 of the Constitution Act in declaring that both sections are of no force or effect. 73 Thus far, counsel have made submissions about the constitutional validity of minimum sentences here. Now that they have been found to be invalid, the parties will move to further submissions about sentences to be considered for Mr. Badali in this case. 74 The sentence hearing will progress in April. Counsel for both sides have scheduling conflicts that require the hearing to be fixed later. 75 The parties will establish a schedule for filing further materials for the sentence hearing of Mr. Badali. Motion granted.