The Defence Toolkit – July 31, 2021

This week’s top three summaries: R v Becessar, 2021 ONSC 4833: s.8 SW RPG for presence of #evidence, R v Aisevho, 2021 ONSC 5116: s.8 CI credibility affected by affiant, and R v James, 2021 BCSC 1408: #duplicative count quashed.

R v Becessar, 2021 ONSC 4833

[July 9, 2021] Charter s.8 – Search Warrant Requirement for RPG that Evidence will be in Location Searched [Nishikawa J.]

AUTHOR’S NOTE: In many search warrant ITO (“Information to Obtain”) challenges, the principle issue is reasonable grounds to believe a crime has been committed, but a search warrant also requires this standard of belief in respect of concluding that evidence WILL BE found at the location searched. Often it is difficult to factually distinguish between these two concepts. However, in this case the contrast was made particularly obvious as Nishikawa J. found there was evidence to satisfy the RPG requirement for an offence having occurred, but was not satisfied that police had objectively substantiated in the ITO that evidence would be located at the place searched. Factors relevant to this determination are the nature of the evidence sought (ie. if drugs – will they be sold by search time, etc.) and the currency of the affiant’s information. Counsel can use this case to highlight that even where evidence of a crime meets the required test, that does not mean that it should be inferred that evidence of that crime will still be located at the place to be search.

Overview

[1] On July 19, 2018, officers of the Toronto Police Service executed a search warrant at the Applicant’s residence on [Address Vetted], Brampton, Ontario. The police located one firearm, $1,880 in Canadian currency and approximately 500 rounds of ammunition.

[2] The Applicant, Rajindra Becessar, is charged with the following firearms offences: trafficking a firearm, unauthorized possession of a firearm, unauthorized possession of a restricted firearm, defacing or removing a serial number on a firearm, and seven counts of possession of a firearm for the purposes of trafficking.

[3] Mr. Becessar brings an application under s. 24(2) of the Charter to exclude the firearm, ammunition and Canadian currency seized from his residence, as well as his statement to police, on the basis that his rights under ss. 8, 9 and 10(b) of the Charter were infringed.

[4] The search warrant was obtained based on information provided by Horace Thomas, an individual who knew Mr. Becessar. Mr. Thomas advised police that over the course of a number of months, he had loaned Mr. Becessar seven of his firearms.

[5] The defence’s position is that the police did not have reasonable and probable grounds to believe that Mr. Becessar committed an offence and that evidence of an offence would be found at Mr. Becessar’s residence. The defence’s main contention is that the Information to Obtain (ITO) was misleading because it implied that Mr. Thomas had transferred firearms to Mr. Becessar a few months earlier, when Mr. Thomas stated that he last loaned a firearm to Mr. Becessar over nine months earlier. The defence further submits that the police breached Mr. Becessar’s right to counsel because of a delay of over four hours before Mr. Becessar was able to speak to his counsel. The defence’s position is that the seriousness of the breaches and the impact on Mr. Becessar’s Charter-protected interests outweigh society’s interest in an adjudication of the case on its merits.

Facts: The Investigation

[10] On June 1, 2018, Toronto police arrested an individual named Nicholas Baksh, whom they had been investigating for drug trafficking. During the arrest, police located and seized a Glock 17 handgun from which the serial number had been removed. Police also executed a search warrant at Mr. Baksh’s residence in Brampton.

[11] On July 6, 2018, police recovered two serial numbers for the firearm seized from Mr. Baksh, one serial number for the slide and a different serial number for the receiver/frame and barrel. The firearm database showed the serial numbers belonged to an individual named Horace Thomas, who also resided in Brampton. At the time, Mr. Thomas had not reported any firearms lost or stolen.

[12] On July 10, 2018, the police obtained a search warrant for Mr. Thomas’s residence and his vehicle. The search warrants were executed the following day. Three handguns and one rifle were located in Mr. Thomas’s gun safe. Eight firearms were unaccounted for, including the firearm seized from Mr. Baksh.

[13] Mr. Thomas was charged with eight counts of weapons trafficking. At the police station, Mr. Thomas provided a videotaped statement in which he stated that he had loaned the missing firearms to his friend, Andrew, the name used by Mr. Becessar. Mr. Thomas stated that he believed that Mr. Becessar had a firearms licence and that he had said that he wanted to try to shoot some of his guns at a range.

[14] Background checks on Mr. Becessar revealed two residential addresses associated with him, the [Address Vetted] address in Brampton and another address in Mississauga. In addition, Mr. Becessar has two business registered to his name. One is a landscaping business and the other is the Cabana restaurant, which has an address in Mississauga.

[15] On July 12, 2018, police conducted surveillance at the two residential addresses. They noted an unknown female and two vehicles at the [Address Vetted] address but no pertinent observations at the second residential address in Mississauga.

[16] The following day, police conducted surveillance at the [Address Vetted] address only. They observed two known vehicles parked near the residence. At 7:35 a.m., the police observed Mr. Becessar exit the residence and meet with an unknown male who had parked in the driveway. They unloaded items from the truck and placed them inside the house. No surveillance was conducted at the Cabana restaurant.

Facts: The Information to Obtain

[18] Appendix “C” to the ITO contains the following statements, which I quote verbatim:

• “It’s been at least a year since Horace Thomas gave Andrew Bessessar [sic] the firearms” (para. 34(n)); …

• “Andrew Bessessar [sic] came to Horace Thomas’s house approximately a year ago and took 2 firearms – a Smith and Wesson .40 calibre handgun and a Keckler and Koch .45 calibre handgun. Andrew Bessessar put them in his car and he went on his way.” (para. 34(x));

• “Two months later, Andrew Bessessar asked Horace Thomas to try two more firearms – Andrew Bessessar came over to Horace Thomas’s house. Horace Thomas gave Andrew Bessessar two more handguns. Andrew Bessessar also asked for .40 calibre ammunition. Horace Thomas gave him two ten round clips loaded with .40 calibre ammunition” (para. 34(y));

• “Andrew Bessessar took 3 more handguns on three separate occasions – last one being in November last year” (para. 34(z));

• “Although Horace Thomas advised investigators that the last guns given to Rajindra Becessar were a few months ago, I believe that Rajindra Becessar is still currently in possession of at least one handgun” (para. 71);

• “It is fair to assume that with all the handguns given to Rajindra Becessar that he would still be in possession of at least one. It is my belief that persons who traffic firearms will arm themselves just due to the mere nature of their criminal activities” (para. 72); and …

[19] Under the sub-heading “How current are the grounds” is a lengthy paragraph about how, based on the affiant’s training and experience, criminals who make the effort and expense to arm themselves with illegal firearms “are seldom without one.” (Para. 59). The paragraph is general and provides no information as to the currency of the grounds in this case.

Warrant Execution

[24] Toronto police located a Smith and Wesson .40 calibre handgun in a jacket pocket of a man’s coat in the master bedroom. The serial number was defaced. Police also located $1,880 in Canadian currency in the same jacket. Police also located nine boxes of .40 calibre ammunition, or a total of 500 rounds, hidden in a shop-vac vacuum cleaner in the garage.

Analysis: Charter s.8

[26] A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278. A search warrant is presumptively valid: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30. The applicant bears the burden of demonstrating that the warrant was not validly issued, that is, that the minimum standard required for authorizing the search was not established by the ITO: R. v. Crevier, 2015 ONCA 619, 24 C.R. (7th) 63, at para. 66.

[27] The standard for the issuance of a search warrant is that there are reasonable and probable grounds to believe that an offence has been committed and that there is evidence of that offence to be found at the place to be searched: Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641, at p. 168. “Reasonable and probable grounds” means a “credibly based probability” and does not mean proof beyond a reasonable doubt or even a prima facie case: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 127-28; R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, 73 C.R. (3d) 129, at p. 1166.  A credibly based probability requires that the grounds provided demonstrate a probability, as opposed to a suspicion, that the relevant facts could be true, and assuming the information to be true, 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 facts exist: R. v. Floyd, 2012 ONCJ 417, at para. 9.

[28] The reviewing judge must not substitute their view for that of the issuing justice. If, based on the record before the issuing justice, as amplified by the evidence adduced at the application hearing, the issuing justice could have issued the warrant, the reviewing judge should not interfere: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, 80 C.R. (3d) 317, at p. 1452.

[30] In R. v. Debot, at para. 60, the Supreme Court of Canada articulated the following considerations when evaluating whether a tip provides a reasonable basis for a detention:

•                     Is the information predicting the criminal offence compelling?

•                     Was the source of the information credible?

•                     Was the information corroborated by police investigation?

[31] It is not necessary, however, that a tip satisfy every element before it can be relied upon as a basis for an arrest: Debot, at para. 60.  Weakness in one factor may be offset by the strength of another factor.

Were there grounds to believe the items sought would be located at the [Address Vetted] address?

[61] The information relied on in an ITO must establish not only reasonable and probable grounds to believe that an offence has been committed, but also that there are grounds to believe that evidence of the offence would be located in the location to be searched: R. v. Donaldson, 2020 ONSC 4611, at para. 20.  Relatedly, there must also be grounds to believe that evidence of the offences would be found at the time the warrant is executed: R. v. Woo, 2017 ONSC 7655, at para. 60.

[62] To demonstrate reasonable and probable grounds to believe that evidence of the offence will be located at the place to be searched, it is insufficient for the ITO to state that an individual who has a gun will always have it with them or that they would store it at home: R. v. Morelli, at para. 40; R. v. Coluccio, 2019 ONSC 4559, at para. 61.

[63] While the Crown relies on R. v. Wilson, 2020 ONSC 4600, and R. v. Latchmana, 2015 ONSC 4812, in both of those cases, police had observed drug transactions and had reason to believe that drugs or proceeds from the drug transactions would be located at the applicant’s residence. In Wilson, Schreck J. further noted that the alleged transactions were proximate in time to the issuance of the warrant: at para. 32.

[64] In this case, the information provided reasonable and probable grounds to believe that Mr. Becessar committed an offence. There was also information linking Mr. Becessar to the [Address Vetted] address, which was corroborated. However, the information did not provide reasonable and probable grounds to believe that in July 2018, evidence of the offences would be located at his residence. As noted by the defence, nowhere in the ITO does DC Mantle state that he believes that the firearms were at the [Address Vetted] address. He states only that he believes that Mr. Becessar would still be in possession of a firearm. There is an absence of information demonstrating a connection the firearms to the [Address Vetted] address. See: Donaldson, at para. 28; R. v. Ferreira, 2016 ONSC 2039, at para. 48.

[65] Not only were there insufficient grounds to believe that firearms or other evidence would be located at the [Address Vetted] address, the information lacked currency. After the last transfer of firearms, which was in November 2017, Mr. Thomas last spoke to Mr. Becessar about the firearms in January 2018, six months before the search warrant was obtained. There was no information as to what happened to the firearms during that period. Mr. Thomas also stated that when he was at Mr. Becessar’s residence before Christmas 2017, he had not seen the firearms. I do not place any significance on this statement, however, because it is unlikely that the firearms would have been left in the open.

[66] There is an inconsistency in the Crown’s position that: (i) there were grounds to believe that Mr. Becessar still had possession of Mr. Thomas’s firearms, because he said Mr. Becessar borrowed them to take them to a shooting range and (ii) that Mr. Becessar borrowed the guns, one to two at a time, to traffic them and that is how Mr. Baksh came to be in possession of one of Mr. Thomas’s firearms. If the theory is that Mr. Becessar is trafficking in firearms, it is unlikely that the firearms would be found at his residence nine months after the last transfer.

[67] The Crown submits that even if the firearms were no longer at Mr. Becessar’s residence, there would nonetheless have been gun boxes and locks, as well as documents relating to the firearms, which were also sought under the search warrant.

[68] The main difficulty with the Crown’s argument is that, as stated above, Mr. Thomas provided no information to link the firearms to the [Address Vetted] address. As a result, there would be no reason to believe that the gun boxes and locks would be there. Moreover, Mr. Thomas did not mention giving Mr. Becessar documents. In Coluccio, at para. 78, DiLuca J. rejected as bald assertions the officer’s belief that ammunition, documentation and other items relating to the firearm would be found in the residence simply because the accused was known to carry around a firearm.

[70] Based on the totality of the circumstances, and assessing the record taking into account the excisions, I find that the issuing judge could not have issued the search warrant because the police lacked reasonable and probable grounds to believe that the evidence sought would be located at the [Address Vetted] address.

[71] Accordingly, I find that Mr. Becessar’s rights under s. 8 of the Charter were breached.

[A further s.10(b) violation was found in relation to delay in providing access to counsel]

Charter s.24(2) Analysis

Seriousness of the Charter-infringing state conduct

[116] On the first Grant factor, the police believed they were acting pursuant to a valid prior judicial authorization. However, the search warrant ought not to have issued because there was an absence of reasonable and probable grounds to believe that evidence of an offence would be located at the [Address Vetted] address. The necessity of demonstrating reasonable and probable grounds that evidence would be located at the residence is fundamental.

[117] This is compounded by the misleading statement in the ITO that firearms were last transferred to Mr. Becessar “a few months ago.” While I have found that the misstatement was due to carelessness as opposed to bad faith or an intent to mislead, in R. v. Dhillon, 2019 ONCA 582, at para. 51, the Court of Appeal found that while “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.” In the circumstances of this case, where the ITO contained a misleading statement and the information lacked both currency and a sufficient connection to the residence, the s. 8 breach is serious

The impact of the breach on the Charter-protected interests of the accused

[119] On the second Grant factor, the impact of the s. 8 breach on Mr. Becessar’s Charter-protected rights is significant. Mr. Becessar was in his home, with his children playing in the backyard, when the search warrant was executed. Mr. Becessar’s reasonable expectation of privacy is at its highest in his home: R. v. Soto, 2011 ONCA 828, at para. 4.

[120] In this case, there is no evidence to suggest that the search warrant was executed in an abusive or high-handed manner. There were circumstances that made the execution of the search warrant more complicated than anticipated. The execution was poorly planned, given that the police knew that Mr. Becessar had three children and the warrant was executed on a day when the team was short-staffed. Despite the challenges, the officers took care to ensure the safety of the other occupants, to release uninvolved individuals as soon as practicable, and to avoid having the children see Mr. Becessar being arrested. Efforts were also made to bring Mr. Becessar’s spouse home to be with the children.

[121] Regarding the impact of the s. 10(b) breach on Mr. Becessar, the delay was a maximum of two hours. As noted above, there were case-specific concerns that resulted in some justifiable delay. Once Mr. Becessar was at 23 Division, efforts were made to put him in contact with his counsel of choice. It is unclear from the evidence whether Mr. Becessar was given any reason for the delay. Nonetheless, Mr. Becessar was not left alone for any lengthy period, nor did the officers try to question him. Mr. Becessar provided a statement approximately one hour after he spoke to his counsel. He thus had sufficient time to consider his counsel’s advice before deciding to give the statement.

Society’s interest in an adjudication on the merits

[124] In R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, Doherty J.A. held that “if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.” (Internal citations omitted.)

Conclusion

[126] In respect of the seized evidence, the unconstitutional search of Mr. Becessar’s residence constitutes a significant intrusion on his Charter-protected rights and his privacy interests and favours the exclusion of the evidence. In addition, the s. 10(b) violation prevented Mr. Becessar from obtaining legal advice at a critical time, when the search warrant was to be executed.  As the Court of Appeal noted in Noel, at para. 24, an arrest and search of one’s home can raise urgent legal issues about the lawfulness of the arrest and the obligation to submit, as well as the validity and scope of the search warrant.

[127] Based on my balancing of the Grant factors, I am of the view that the court should dissociate itself from evidence obtained through a negligent breach of the Charter: Le, at para. 143. A reasonable person informed of the relevant circumstances and familiar with Charter values would conclude that the admission of the evidence in this case would bring the administration of justice into disrepute.

[129] … Pursuant to s. 24(2) of the Charter, the seized evidence, namely, the firearm, ammunition, and cash, is excluded.

R v Aisevho, 2021 ONSC 5116

[July 21, 2021] Charter s.8 – Search Warrant – Credibility of Confidential Informant Affected by the Credibility of the Affiant [Nishikawa J.]

AUTHOR’S NOTE: Usually in a R v Debot analysis of CI information (ie. compelling, credible, corroborated), the credibility analysis focuses on factors about the CI. Here, some exaggeration and carelessness on behalf of the Affiant spilled over to affect the credibility of the informant information. This case provides a good factual backdrop to challenge Informant evidence where police go over the line in trying to pad the grounds for a warrant. 

Overview

[1] On May 22, 2019, officers of the Toronto Police Service executed a search warrant at the Applicants’ residence at 1442 Lawrence Avenue West, Toronto, Ontario and a vehicle. In the residence, the police located a defaced, loaded .22 calibre handgun with two boxes of ammunition, 59 grams of cocaine, and $35,000 in Canadian currency. Nothing was seized from the vehicle.

[3] Both Applicants bring applications under s. 24(2) of the Charter to exclude the firearm, ammunition, cocaine, and Canadian currency seized from the residence, on the basis that their rights under ss. 8 and 9 of the Charter were infringed.

[4] The Applicants’ position is that the police did not have reasonable and probable grounds to believe that they committed an offence and that evidence of the offence would be found at the residence and in the vehicle. The Applicants’ main contention is that the Information to Obtain (ITO) was deliberately misleading. The Applicants’ position is that the seriousness of the breaches and the impact on their Charter-protected interests outweigh society’s interest in an adjudication of the case on its merits. In the alternative, the Applicants submit that this court ought to exercise its residual discretion to quash the search warrant because the police subverted the preauthorization process.

Facts: The Investigation

[8] Officers of the Toronto Police Service received information from a confidential source (CS) alleging that Mr. Aisevho was engaged in cocaine-trafficking activity. The information provided by the CS has largely been redacted from the Information to Obtain (ITO) to protect the identity of the CS.

[9] The affiant of the ITO, Detective Constable Samuel Kim, then conducted various database checks. Ministry of Transportation (MTO) records showed that Mr. Aisevho was the registered owner of a grey Nissan Altima with licence plate number BXRJ 208. DC Kim found that Mr. Aisevho’s last known address was 2801 Jane Street and that he was investigated in 2017 for a Highway Traffic Act offence involving the same vehicle. In July 2014, Mr. Aisevho was charged with trafficking in marijuana. There was a mugshot from this arrest, as well as a photograph from the MTO search.

[10] On May 20, 2019, DCs Kim and Vadim Martsenyuk attended at 1442 Lawrence Avenue West and observed a dark grey Nissan, with licence plate number BXRJ 208, in the underground parking lot. DCs Andrew Dilly and Adam Morris viewed portions of the building’s video surveillance which showed Mr. Aisevho in the lobby of the apartment building.

[11] On May 21, 2019, Toronto police confirmed with the building’s property management that Mr. Aisevho was leasing a particular unit there. DC Dilly reviewed additional video surveillance footage. Mr. Aisevho was viewed entering and leaving the parking garage and the lobby. The Nissan was viewed entering and exiting the parking garage. The video surveillance is further detailed below.

[12] On May 21, 2019, DC Kim applied for a telewarrant for the residence and vehicle. Justice of the Peace Carol Allison granted the search warrant the following day.

Should Portions of the ITO Be Excised?

[25] In this case, the Applicants submit that DC Kim failed to fulfil his duty to provide full, frank and fair disclosure in the ITO. Specifically, the Applicants submits that the ITO was inaccurate and misleading for the following reasons:

• The ITO referred to marijuana trafficking charges against Mr. Aisevho but failed to disclose that all charges against him had been withdrawn and that he has no criminal record or outstanding charges;
• The ITO inaccurately referred to surveillance, when no surveillance was conducted by the police;
• Relatedly, the ITO falsely and without any basis characterized Mr. Aisevho’s behaviour as “paranoid,” “peculiar” and “surveillance conscious”;
• The ITO failed to state that the times on the building’s video surveillance were inaccurate by approximately two hours, creating a misleading impression that Mr. Aisevho was making multiple short trips out of the building in the middle of the night;
• The ITO erroneously stated that Mr. Aisevho was observed on numerous occasions roaming in and out of the building for short periods at all hours of the day and night;
• The ITO stated that Mr. Aisevho was observed attending the underground parking lot “on numerous occasions” and leaving his vehicle “on several occasions, only to return shortly thereafter” when the video surveillance shows he only did this twice; and
• The ITO erroneously stated that a dash cam was observed in the vehicle, and wrongly concluded that Mr. Aisevho was surveillance conscious and had adopted extra security measures. [Emphasis by PM]

[26] The Applicants submits that the above references should be excised from the ITO. In respect of the 2014 charges, the Applicants submits excision is insufficient, and that it is necessary to amplify the record to add that Mr. Aisevho has no criminal record and no outstanding charges. The Applicants’ position is that once the misleading statements in the ITO are excised and the record is amplified as necessary, the search warrant could not have been authorized.

[28] As will be further detailed below, I find that the ITO contained numerous inaccurate and misleading statements. Certain statements were not simply inaccurate but were exaggerations or mischaracterizations that could not be considered minor slips or errors. All such statements must be excised.

[29] First, the ITO specifically refers to charges against Mr. Aisevho for possession of marijuana for the purposes of trafficking in 2014 and to a Highway Traffic Act investigation in 2017, but did not state the outcome or attach Mr. Aisevho’s criminal record. Had the criminal record been attached, it would have shown that the charges were withdrawn within six weeks of being laid. The reference to the 2014 charges without the outcome was materially misleading.

[31] DC Kim’s explanation is unsatisfactory. He conducted the CPIC search and the criminal record was available to him. In my view, when he chose to describe the 2014 charges against Mr. Aisevho in paragraph 9 of the ITO, he also chose not to disclose the outcome or to attach the CPIC record. He failed to provide full, frank and fair disclosure in relation to Mr. Aisevho’s lack of a criminal record and the absence of any outstanding charges. This failure cannot be seen as inadvertent.

[32] In my view, it would be insufficient to excise the reference to the 2014 charges from the ITO. It would be more accurate to add that the charges were withdrawn within six weeks. The ITO should also state that Mr. Aisevho had no criminal record and that there were no outstanding charges against him.

[33] Second, the third bullet point in paragraph 23 of the ITO states that “[w]hile conducting surveillance of the address, it became apparent that AISEVHO is paranoid and displayed characteristics of being surveillance conscious.” This statement is inaccurate because it indicates that the police conducted surveillance of Mr. Aisevho and made observations of his behaviour when they did not. In reality, the police did not conduct any surveillance of Mr. Aisevho or at the building, but only viewed portions of the building’s video surveillance. The sentence does not make clear that all of the observations were based on the viewing of the video. In addition, the ITO is vague about how much of the video surveillance was viewed. It states only that after viewing some video on May 20, 2019, DC Dilly viewed “further video” on May 21, 2019. Based on DCs Morris and Dilly’s notes, video for portions of May 19-21, 2019 were viewed.

[34] Third, the characterization of Mr. Aisevho’s behaviour as paranoid and surveillance conscious is without basis. DC Kim did not view the building video surveillance. He drafted the ITO based on notes of the two officers who did watch the video, DCs Dilly and Morris. Neither officer states in their notes that Mr. Aisevho was observed behaving in a paranoid or surveillance-conscious manner. Nor do they detail observations that would support the characterization that Mr. Aisevho was behaving in a paranoid or surveillance-conscious manner. They specifically noted when Mr. Aisevho was on his cell phone, when he was carrying something, and when he was not. If they observed noteworthy behaviour, it is reasonable to believe that they would have noted it, because it would be relevant to the investigation into Mr. Aisevho’s drug trafficking activity.

[36] I find that there is no basis in the evidence for the statement that Mr. Aisevho was behaving in a paranoid and surveillance-conscious manner. When coupled with the suggestion that the police observed this behaviour first-hand, the statement is especially misleading. The sentence must be excised.

[37] Similarly, the fourth bullet point in paragraph 23 of the ITO states that “[o]n most occasions AISEVHO avoided being seen by video cameras of the building by either putting his hood up or looking down. This is coupled with his peculiar behaviour.” This statement is also unsupported by the officers’ notes. DC Dilly’s notes contain one reference to Mr. Aisevho wearing his hood up. DC Kim’s notes contain no reference to this information being conveyed to him. Again, it is also unclear what behaviour is being characterized as “peculiar.” Without underlying observations of actual behaviour or facts, the characterization is unsupported. This bullet point must also be excised.

[38] For the same reason, the reference to “peculiar behaviours” in the fifth bullet point must also be excised.

[39] Fourth, in paragraph 22 of the ITO, DC Kim provided inaccurate times for Mr. Aisevho’s exits and entries to the building as seen on the video surveillance. Both DC Dilly and DC Morris’s notes clearly state that the time on the building video camera was behind by one hour and 57 minutes. While he relied on their notes to draft the ITO, DC Kim did not correct the times. In the ITO, Mr. Aivseho was reported to have gone out and returned between 1:22 a.m. and 1:59 a.m. and again at 3:51 a.m. and 4:10 a.m. Those movements actually took place between 3:19 to 3:56 and between 5:48 a.m. and 6:07 a.m. As a result, at least one of those times is not as “odd” as portrayed.

[40] On cross-examination, DC Kim admitted that when he drafted the ITO, he failed to state the correct the times. He denied that he intentionally used incorrect times to make it appear as if Mr. Aisevho was coming and going multiple times in the middle of the night. However, DC Kim had no explanation as to why he did not correct the times when he was relying on the other officers’ notes for the information, and they clearly stated that the video camera was behind. In my view, DC Kim’s failure to correct the times was likely the result of carelessness, as opposed to a deliberate attempt to mislead. There were other exits and entries that DC Kim did not include in the ITO, both during the day and the night or early morning hours. Portions of the notes are in reverse chronological order and are difficult to decipher.

[41] Fifth, the fifth bullet point under paragraph 23 refers to “the numerous occasions AISEVHO was observed roaming in and around the building for short periods at all hours of the day and night.” In paragraph 21, the ITO states that Mr. Aisevho “was observed roaming the building at odd hours during the night, often times on his phone prior to leaving” and that he was “observed exiting and entering in his vehicle at various points in time during the night for short spurts.” I find that this repeated characterization Mr. Aisevho’s movements in and out of the building is significantly overstated. Based on DC Dilly’s notes, during the two to three days of video surveillance viewed by the police, he made one to two exits and entries on May 20 and 21, 2019. On May 19, 2019, Mr. Aisevho went in and out of the building at least three times between midnight and 6:00 a.m. The ITO’s references to “numerous” or “several” entrances and exits at “all hours of the day and night” is exaggerated. Similarly, it was inaccurate to state, in the sixth bullet point in paragraph 23, that “[t]his cycle was observed on numerous occasions.” All of these statements must be excised.

[43] In paragraph 23, the seventh bullet point “[o]ften times, AISEVHO was observed on his cell phone prior to leaving his building. It is reasonable that drug deals are made, which would explain his constant movements at odd times, at short stints.” According to the officers’ notes, Mr. Aisevho was viewed on his cell phone once while leaving the building. This statement is also inaccurate and results in an unfounded and misleading conclusion, and must be excised.

[44] Sixth, the ITO further stated in the fifth bullet point under paragraph 25 that Mr. Aisevho “attended the underground parking lot on numerous occasions in very short spurts.” The sixth bullet point further states that “[i]t is reasonable that the vehicle is used in order to pick up product. Therefore it is highly plausible that more illegal narcotics are inside the vehicle[.]” Based on DC Dilly’s notes, the video surveillance shows only one occasion when Mr. Aisevho went to the parking lot without then leaving in the vehicle. Similarly, Mr. Aisevho was seen, at most, twice carrying something other than a cell phone or keys. The statements are inaccurate and speculative and must be excised.

[45] Seventh, the third sentence of paragraph 18 of the ITO states that “[t]he vehicle was two door with black rims and a front dash camera.” In addition, the last bullet point under paragraph 25 states:

As mentioned before, AISEVHO has showed clear signs of being surveillance conscious. Officers observed a dash camera in his vehicle, which indicates an extra security measure. It is reasonable to believe that such a device is put in place in order to protect his illegal narcotics stored in his vehicle.

[46] A photograph of the item taken when the search warrant was executed shows that it is a cell phone holder affixed to the inside of the windshield of the vehicle….

[50] On cross-examination, DC Kim took every opportunity to state that he did not intend to mislead or to influence the issuing justice, whether it was responsive to the question being asked or not. Although he acknowledged making errors, he admitted only certain, limited errors. For example, he admitted that he erred in failing to state who conveyed to him the information about Mr. Aisevho’s behaviour. However, he insisted that it was conveyed to him when there was no objective proof that it had been. In addition, DC Kim’s failure to correct the error regarding the outstanding charges is particularly concerning. If DC Kim “owned” his error, and intended to fulfil his duty to be full, frank and fair, he would have taken steps to correct the error at an earlier stage. At one point during the cross-examination, DC Kim stated that he was only involved in the investigation for two days. The attempt to minimize his role suggests that he either did not take his duties seriously or that he now wishes to distance himself from the shortcomings in the investigation. [Emphasis by PM]

[51] The fact that so many errors were made in relation to an investigation that was only two days long undermines the Crown’s submission that they were honest mistakes. I recognize that ITOs should not be held to a standard of perfection, given that police officers are not legally trained and are acting under time and other constraints.  In this case, however, the errors do not relate to minor or tangential matters. They go to the heart of the application. Moreover, none of the omissions are favourable to the Applicants. The content of the ITO and DC Kim’s testimony lead me to conclude that the misleading statements and exaggerations were intended to bolster what were seen as slim grounds for a search warrant. If the police believed they had sufficient grounds, it would not have been necessary to mischaracterize their observations to such an extent. While I do not make this finding lightly, in my view, the ITO was deliberately misleading.

Analysis Charter s.8 – Review of the Warrant

[56] A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278. A search warrant is presumptively valid: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30. The applicant bears the burden of demonstrating that the warrant was not validly issued, that is, that the minimum standard required for authorizing the search was not established by the ITO: R. v. Crevier, 2015 ONCA 619, 24 C.R. (7th) 63, at para. 66.

[58] “Reasonable and probable grounds” means a “credibly based probability” and does not mean proof beyond a reasonable doubt or even a prima facie case: Morelli, at paras. 127-28; R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, 73 C.R. (3d) 129, at p. 1166.  A credibly based probability requires that the grounds provided demonstrate a probability, as opposed to a suspicion, that the relevant facts could be true, and assuming the information to be true, 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 facts exist: R. v. Floyd, 2012 ONCJ 417, at para. 9.

[59] As stated in Garofoli, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant, but their sole impact is to determine whether there continues to be any basis for the decision of the issuing judge.

[60]In R. v. Debot, at para. 60, the Supreme Court of Canada articulated the following considerations when evaluating whether a tip provides a reasonable basis for a detention:

•                     Is the information predicting the criminal offence compelling?

•                     Was the source of the information credible?

•                     Was the information corroborated by police investigation?

[61] It is not necessary, however, that a tip satisfy every element before it can be relied upon as a basis for an arrest: Debot, at para. 60.  Weakness in one factor may be offset by the strength of another factor.

Application to the Facts

Was the information compelling?

[63] In this case, the CS provided detailed and specific information about Mr. Aisevho, including the name by which the CS knows him and how long the CS has known him. The CS confirmed Mr. Aisevho’s identity after being shown a photograph. The CS also provided detailed information of the alleged criminal activity, including: where Mr. Aisevho trafficked cocaine, the quantity and value of cocaine trafficked, how it is packaged, and the method and manner of trafficking.

[64] The information relied on in an ITO must establish not only reasonable and probable grounds to believe that an offence has been committed, but also that there are grounds to believe that evidence of the offence would be located in the location to be searched: R. v. Donaldson, 2020 ONSC 4611, at para. 20.  Relatedly, there must also be grounds to believe that evidence of the offences would be found at the time the warrant is executed: R. v. Woo, 2017 ONSC 7655, at para. 60.

[65] The judicial summary makes clear that certain information about Mr. Aisevho’s alleged cocaine-trafficking activity was first-hand and was not based on hearsay or rumour. The information was not widely known or easily ascertainable. Because of the risk of disclosing information that could identify the CS, I am unable to go into further detail.

[66] The ITO provided information as to the currency of the information provided by the CS. The judicial summary specifically states that the CS provided information about Mr. Aisevho to police within 60 days of the warrant being sought. The judicial summary further provided the recency of the CS’s information, which was within 60 days of the warrant being sought. Based on my review of the unredacted ITO, currency was not an issue. The information also provided reasonable and probable grounds to believe that evidence would be located at the residence.

[67] As a result, I conclude that the information provided by the CS was very compelling. [Emphasis by PM]

Was the CS credible?

[69] The CS was not a registered or carded informant with the Toronto police and had not previously provided information to the police. Whether the CS has a criminal record and the details, if any, were disclosed in the unredacted ITO that was before the issuing justice. Similarly, the ITO disclosed whether the CS had any outstanding charges and the nature of such charges. Whether the CS is involved in drug and/or criminal culture was also disclosed.

[70] The CS’s motivation for providing the information to police was either financial consideration or consideration relating to outstanding charges. The ITO states that the CS was advised of the consequences of providing untruthful or dishonest information. Any consideration would be given only after the determination of the truthfulness of the information on the particular case. The CS thus could not benefit unless the information was correct.

[72] Moreover, in this case, my finding that the disclosure in the ITO fell short of the requirement to be full, fair and frank, raises concerns about the reliability of the CS’s information, which was conveyed by a handler and recounted in the ITO by DC Kim. Because I do not have confidence in DC Kim’s recounting of the officers’ observations of the video surveillance, I find it difficult to have confidence in his reporting of the CS’s information. As Strathy J. (as he then was) found in R. v. Brown, 2013 ONSC 2848, at para. 115, “the taint attached to the surveillance undermines the reliability of the information attributed to the confidential sources.” See also, Crevier, at para. 74. [Emphasis by PM]

[73] Based on the foregoing considerations, I find that the credibility of the CS is not high. [Emphasis by PM]

Was the information corroborated?

[75] It is often impossible for police to obtain confirmation of the “very criminality” of what the CS has witnessed or knows: R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 38. The fact that police are not able to corroborate or confirm the criminal act is not a lack of corroboration for the purposes of issuing a search warrant: R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at para. 22. At the same time, meaningful corroboration requires more than confirmation of neutral or easily discernible facts: R. v. Woo, 2017 ONSC 7655, at para. 51, citing R. v. Muller, 2011 ONSC 4892, at para. 48 (rev’d on other grounds 2014 ONCA 780).

[76] The ITO details the investigative steps taken to corroborate the information provided by the CS. Through police database checks, the police verified Mr. Aisevho’s physical description, including his height and the fact that he wears glasses. Police verified that he was renting the apartment at 1442 Lawrence Avenue West. They verified that a dark grey Nissan registered to Mr. Aisevho was parked in the underground parking lot of 1442 Lawrence Avenue West. Much of this information consists of easily discernible facts that could have been known to anyone who knew Mr. Aisevho.

[77] As detailed earlier in these reasons, the ITO gave the false impression that the CS’s information was corroborated by observations made by police surveillance. No surveillance was conducted and the observations of Mr. Aisevho were based on reviewing the building video surveillance for a very limited period. The descriptions of Mr. Aisevho’s behaviour in the ITO had no basis and were materially misleading. Without the excised portions of the ITO, there is no corroboration of activity that would be consistent with the CS’s information.

[78] In my view, only minimal investigation was conducted and there was only superficial confirmation of neutral or easily discernible facts.

Summary

[79] Taking into consideration the totality of the circumstances, while the CS’s information was very compelling, the credibility of the CS was limited, and there was insufficient corroboration by police to ensure the reliability of the information.

[80] Based on my analysis of the Debot factors, and taking into consideration the record with the excisions and amplification detailed above, there was not sufficient credible and reliable evidence to permit the issuing justice to find reasonable grounds to believe that an offence had been committed and that evidence of the offence would be found at the Applicants’ residence. Accordingly, the search warrant could not have issued and the Applicants’ under s. 8 of the Charter were breached.

Section 24(2) Analysis

Seriousness of the Charter-infringing state conduct

[90] On the first Grant factor, the police believed they were acting pursuant to a valid prior judicial authorization. However, the search warrant could not have issued because the disclosure was not full, frank, and fair and there were insufficient grounds.

[91] The seriousness of the Charter breach is compounded by the false and misleading statements in the ITO, which will not be repeated here. The cumulative effect of the errors, omissions and exaggeration was to portray Mr. Aisevho a drug dealer. The ITO attempted to bolster the information provided by the CS, not by corroboration, but through a mischaracterization of his behaviour. In an ex parte proceeding, full, frank and fair disclosure is essential. An officer must “take care not to exaggerate the information upon which they rely to establish reasonable and probable grounds” or to make inaccurate assertions: Morelli, at para. 102. Police officers seeking search warrants are bound to act with diligence and integrity, always mindful of the special duties of professionalism, candour, and disclosure that attach in ex parte proceedings: Farrugia, at para. 30. Where the police stray so far from the standard that is expected, their conduct cannot be said to be in good faith.

[92] This is not to suggest that the police set out to violate the Applicants’ Charter rights; rather, their conduct betrays a casual attitude toward the protection of those rights and their duty to be full, frank and fair. Even a careless breach of the Charter is nonetheless serious and precludes a finding of good faith: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44.

[93] In the circumstances of this case, I find that the s. 8 breach is serious.

The impact of the breach on the Charter-protected interests of the accused

[94] On the second Grant factor, the impact of the s. 8 breach on Mr. Aisevho and Ms. Seetaram’s Charter-protected rights is significant. Mr. Aisevho and Ms. Seetaram were in their home where their expectation of privacy is at its highest: Paterson, at paras. 46, 50; Herta, at para. 67. Mr. Aisevho had no criminal record and no outstanding charges. Ms. Seetaram was pregnant at the time.

[95] In this case, there is no suggestion that the search warrant was executed in an abusive or high-handed manner. The impact of the breach on the Applicants’ rights is nonetheless significant.

Balancing

[98] In R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, Doherty J.A. held that “if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.” (Internal citations omitted.)

[101] In this case, the ITO not only failed to provide full, frank and fair disclosure, but was deliberately misleading. This resulted in the unconstitutional search of the Applicants’ residence, which constitutes a significant intrusion on their Charter-protected rights and privacy interests and favours the exclusion of the evidence.

[102] In the circumstances of this case, a reasonable person informed of the relevant circumstances and familiar with Charter values would conclude that the admission of the seized evidence would bring the long-term reputation of the administration of justice into disrepute.

Conclusion

[104] For the foregoing reasons, the applications are granted. I find that the Applicants’ rights under ss. 8 and s. 9 rights were breached. Pursuant to s. 24(2) of the Charter, the seized evidence, namely, the firearm, ammunition, cocaine, and cash, is excluded.

R v James, 2021 BCSC 1408

[July 19, 2021] Quashing Duplicative Count Before Trial [H. Holmes ACJ]

AUTHOR’S NOTE: Imprecision and an unclear question for a jury is a situation to be avoided for defence counsel. One thing that can contribute to this state of affairs is counts on an Indictment that overlap in terms of their legal elements. Though this happens infrequently because there is an incentive to keep Indictments simple for the Crown as well (ie. avoiding appeals), on occasion the intentional imprecision leaves the possibility of a muddled path to conviction which the prosecution just doesn’t want to give up. Essentially, this is the shot gun approach to seeking a conviction. This case provides one method of simplifying an Indictment for defence counsel when all appeals to common sense and fairness fail with the Crown. The main requirement is almost completely overlapping legal elements. 

Introduction

[1] Craig James, who is charged in a six-count direct indictment, applies for an order quashing the first of the counts, or alternatively an order requiring the Crown to particularize that count.

[2] In the notice of application he filed, Mr. James contended that count 1 does not contain sufficient detail to give him reasonable information about the charge, or to identify the transaction to which it relates, and that he is therefore unable to adequately prepare a defence. As I will explain below, this problem was largely addressed by statements Crown counsel made at the hearing of the application, which made clear what count 1 alleges and what it does not.

[3] However, Mr. James contends that count 1 is nonetheless flawed and, given the Crown’s statement about what it alleges, is duplicative, as well as duplicitous, and is prejudicial to his own interests as well as to the conduct of a fair and orderly trial.

[4] For the reasons set out below, the application to quash count 1 is granted in the unusual circumstances of this case.

Background

[6] The indictment charges Mr. James in connection with his role as Clerk of the House for BC’s Legislative Assembly. The four counts that require consideration in this application (counts 1, 2, 3, and 5) all allege that Mr. James committed breach of trust in connection with the duties of his office, contrary to s. 122 of the Criminal Code (breach of trust by a public official).

[9] Count 1, by contrast, makes the general allegation that Mr. James used his position to advance his own personal interests over the public good, and that count does not specify the type of conduct by which he is alleged to have done so:

Craig Harley JAMES, between September 10, 2011, and November 21, 2018, inclusive, at or near the City of Victoria, in the Province of British Columbia, being the Clerk of the House for the Legislative Assembly of British Columbia, did commit breach of trust in connection with the duties of his office by using his position to advance his own personal interests over the public good, contrary to Section 122 of the Criminal Code.

[10] As I briefly noted earlier, Mr. James first brought this application he contended that count 1 does not allow him to prepare a defence because the allegation may apply to an almost infinite range of acts or omissions over more than seven years, Mr. James’s entire career in the position of Clerk.

[11] Counsel for Mr. James referred to this problem in a case management conference before the application was scheduled, and indicated that an application would likely be necessary. Crown counsel then advised that count 1 should be understood as alleging only the conduct that is also the subject of counts 2, 3, and 5. Crown counsel confirmed again, in a letter dated April 13, 2021, to defence counsel, that “[t]he conduct that constitutes the offence in count 1 is that specified in counts 2-6 and set out in the reports to Crown Counsel”.

[12] The potential scope of count 1 nonetheless remained of understandable concern to Mr. James. This was because Crown counsel appeared (subject to what I will say next) to view count 1 as enlarging the scope of admissible evidence in the trial, even though, by the Crown’s assurance, count 1 alleges no conduct that is not also alleged in counts 2, 3, or 5.

[14] The obvious concern at the time was that the Crown may take the position in the trial that count 1 allows the trier of fact to consider instances of wrongful conduct, additional to those alleged in counts 2-6, without those instances having been specified in count 1 or elsewhere. This would leave Mr. James unable to adequately prepare his defence against any such allegations.

[16] The concern that the Crown may view count 1 as allowing for the admission of evidence of conduct that is not specified in counts 2-6 or elsewhere was largely put to rest during the submissions of Crown counsel in the hearing of this application when Crown counsel described the Crown’s position concerning count 1 as follows:

• the criminal conduct alleged in count 1 consists of the same specific incidents as are alleged in counts 2-6, and no more
• the Crown does not view count 1 as expanding the scope of evidence admissible in the trial
• the Crown will not seek, and would not be entitled, to rely on any evidence of additional unlawful conduct that may emerge during the trial (“fruit that may fall from the tree”, in Crown counsel’s words) for proof of the conduct alleged in any of the charges, including count 1, and
• the conduct alleged in counts 2-6 must be proven beyond a reasonable doubt before that conduct can ground a conviction under count 1 (subject to the application of the principle in R. v. Reyat, 2012 BCCA 311, which I will discuss later).

[18] However, Crown counsel also concluded their main submissions by observing that the inclusion of count 1 on the indictment allows for a consideration in the trial of Mr. James’s entire course of conduct in the position of Clerk, this potentially clouding the intended effect of the Crown’s previous clarifications.

The Reyat Principle

[30] The principle did not originate with Reyat, but that case presented it starkly.  Mr. Reyat was charged with a single count of perjury, encompassing 19 instances of allegedly false statements.  His counsel asked for a ruling that, to convict, the jury must be unanimous as to at least one of the alleged false statements, but Justice McEwan did not agree with that conclusion.  In a ruling upheld by the Court of Appeal, he held that the jury must be unanimous that the accused committed perjury with respect to at least one of the alleged statements, but need not be unanimous about which one (or more):  see 2010 BCSC 1623.  Like Ryan J.A. in G.L.M., McEwan J. concluded that the reasoning in R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652, allowing jurors to reach a unanimous verdict of guilt by each relying on different bases of liability (principal vs. party), applies equally when jurors each base their verdict of guilt on different occurrences or particularized allegations within a multi-occurrence charge.

[31] In general terms (and subject to the comments I will make later) count 1 is such a charge that similarly permits multiple factual routes to a verdict of guilt, with its allegations of three different types of conduct.  If the Reyat principle applies, then a jury unable to reach unanimity (or “hung”) on counts 2, 3, and 5 could nonetheless reach a unanimous verdict of guilt if each juror were satisfied beyond a reasonable doubt of guilt in respect of one (or more) of the types of alleged conduct, even without jury unanimity as to which type.

IS COUNT 1 DUPLICATIVE AND PREJUDICIAL AS A RESULT?

Is Count 1 Truly Duplicative?

[50] As discussed, count 1 essentially replicates, in a rolled-up charge, the charges in counts 2, 3, and 5. Mr. James submits that as, thus, a duplicative count, count 1 adds nothing to the indictment with any value to the Crown or the public, and instead gives rise to prejudice to him and to the trial process in various ways.

[54] However, the situation in relation to the charges against Mr. James is different from that in Black & McDonald and the other cases on which the Crown relies.  In those cases, the charges described as overlapping, duplicating, or alternative all charged different types of offences.  In Black & McDonald, for example, the charges (for each accused) all related to the same industrial accident that killed a worker, but they alleged violations of different provisions of Ontario’s Occupational Health and Safety Act or the applicable regulation.  Here, by contrast, not only does count 1 allege the same unlawful conduct as is alleged in counts 2, 3, and 5; it also charges the same Criminal Code offence (under s. 122) in relation to that conduct.  While the charges in Black & McDonald overlapped, in charging different offences in respect of generally the same conduct, count 1 does not merely overlap with the other counts on the indictment against Mr. James, it duplicates those charges.

[56] Nor do I view count 1 as charging in the alternative, as contemplated by s. 590(1)(a).  Count 1, as clarified by Crown counsel’s statements, alleges exactly the same conduct as alleged in counts 2, 3, and 5, as amounting to exactly the same Criminal Code offence, not the same conduct amounting to a different offence.

[57] Count 1 is thus truly duplicative.  It is also unusual in so being.  Counsel were unable to provide the Court with any case authority in which similarly duplicative charges were considered.  (As I have explained, the cases to which the Crown referred involved charges either relating to different conduct charged as the same offence or to the same conduct charged as different offences.)

Is Count 1 Prejudicial to Mr. James or Trial Fairness?

[60] He submits that count 1 inherently puts him at risk of facing an increased number of verdicts of guilt for the same conduct characterized as the same offence.  He submits that the Kienapple principle does not remove this prejudice because, although it would prevent a conviction in respect of the duplicate charge, the duplicate findings of guilt would remain, increasing the stigma to him, particularly in light of the high profile of this case.

[61] Mr. James submits also that the jury may be misled into treating count 1 as encompassing a broader range of allegations than the Crown (through the clarifying statements of counsel) says is intended.  This risk follows, he submits, from the breadth and non-specificity of the count, and (in duplicating counts 2, 3, and 5) its lack of any other apparent purpose on the indictment.

[62] In a related submission, Mr. James also warns of the risk that, when considering count 1, the jury will take into account additional evidence of alleged improper conduct.  He submits that this risk is amplified by the fact that the investigation began with allegations in the dozens, most of them discredited or not pursued, and he posits that count 1 will provide a route for them to re-emerge in the guise of “pattern of conduct” evidence.

[63] These are all risks to be taken into account.

[64] Many of them, particularly those relating to evidence the jury may properly consider in relation to count 1, could likely be addressed by (a) careful attention before and during the trial to the basis on which evidence is adduced, and (b) clear mid-trial and final instructions to the jury on that topic.

[66] However, the duplicative character of count 1 introduces an additional layer of complexity to the jury’s task that in my view puts at risk the fairness and integrity of the trial in the following way.

[67] The risk begins with the Reyat principle, which, as I explained earlier, applies as a matter of law in respect of the three types of conduct alleged in count 1.  Of itself, that would not make the trial unfair.  Indeed, the Court of Appeal in Reyat found no unfairness in the application of the principle in that case, noting that a finding of guilt always requires all jurors to agree that each element of the offence has been established beyond a reasonable doubt (paras. 34-45).  It should be noted, however, that Mr. Reyat faced only the one rolled-up count on the indictment, whereas Mr. James faces the other, duplicative counts as well.

[68] In this case, an additional difficulty arises, in my view, from the fact that the Reyat principle applies not only to the three types of conduct alleged in count 1.  It applies also, at another level of the necessary analysis, in respect of the allegations within count 5 (which are effectively repeated within count 1) that Mr. James claimed and received reimbursement for a variety of travel and other expenses that were actually personal, not business, expenses.

[69] In short, it would be necessary to instruct the jury to apply the Reyat principle in relation to the expense allegations in count 5 (and in the corresponding consideration of those allegations in respect of count 1), and then again, separately, in respect of the three types of conduct alleged in count 1.  At each of those stages, each juror would need to determine whether they are satisfied beyond a reasonable doubt that one or more of the allegations is proven, those being the multiple expense claims in the jury’s consideration of count 5 (and the corresponding aspect of count 1), and the three types of conduct alleged in count 1.

[70] It may well be possible to devise instructions to sufficiently guide the jury through this layered and rather complex task.  Crown counsel suggested, for example, that the jury could readily be instructed on counts 2, 3, and 5, respectively, and then on count 1 in essentially the same terms, and I agree that this would be the only manageable approach.  Counsel did not address how those instructions would reflect the Reyat principle in relation to the multiple occurrences alleged in count 5 (and its companion fraud count 6), and also in relation to the three types of conduct alleged in count 1.  However, I do not doubt that suitable instructions could be crafted, though they would be somewhat mechanical and repetitive.

[72] There are two significant situations in which the jury would have no real role in relation to count 1.

[73] The first of these would arise if the jury were to find Mr. James not guilty of each of the offences in counts 2, 3, and 5.  In that situation, the only reasonable verdict on count 1 would be an acquittal.

[74] The second situation would arise if the jury were to find Mr. James guilty on one or more of the offences in counts 2, 3, and 5.  In that situation, the only reasonable verdict on count 1 would be a verdict of guilt.

[75] Indeed, in both of those situations it might well be that the jury should be expressly or tacitly directed to acquit or find guilt, as the case may be, on count 1.

[76] The only situation in which the jury would have a meaningful task, in considering count 1 (after first considering counts 2, 3, and 5), is a third one, namely if the jury were unable to reach a unanimous verdict (that is, if it were hung) on two or more of counts 2, 3, and 5.  (If the jury were hung on only one of those counts, it would necessarily be hung also on count 1.)  At that point, the Reyat principle could result in a verdict of guilt on count 1, despite the lack of unanimity on two of more of counts 2, 3, and 5.

[77] One might debate how likely it is that the third situation would arise (i.e. the jury hung on two or three of counts 2, 3, and 5).  If it is unlikely to arise, Mr. James’s position gains yet further force, that there is little utility to count 1’s inclusion on the indictment.  But if the situation is not unlikely to arise, that too raises concern because a jury struggling for unanimity in respect of at least two of the three types of alleged conduct may be inclined to turn directly, and prematurely, to count 1, without first giving the appropriate effort to the other counts.

[78] Further, what would a verdict of guilt on count 1 indicate in the third situation I have identified?  Because of the scope of count 1, and the breadth of its allegations, as well as the effect of the Reyat principle at two stages of the jury’s analysis, the verdict could reflect a range of vastly different conclusions about the seriousness of the offence.  For example, it could mean that all 12 jurors found very serious breaches of trust, albeit different ones, in relation to large amounts of public funds (as alleged in counts 2 and 3).  Or, it could mean that 11 jurors found only a few relatively minor improper expense claims (among the many alleged in count 5), while only one juror found not those but a larger scale breach of trust (as in counts 2 or 3).  Judges sentencing an offender after a jury’s verdict of guilt are regularly required to make findings of fact, consistent with the jury’s verdict.  However, in relation to count 1 of this indictment, such a task could be exceptionally challenging if the jury were hung on two or more of counts 2, 3, and, in particular, 5, because the jury’s verdict would offer unusually little guidance.

[79] With these observations in mind about some of the risks and challenges count 1 poses, relative to its benefits to the trial process, I turn to consider how count 1 stands in relation to the single transaction rule.

DOES COUNT 1 VIOLATE THE SINGLE TRANSACTION RULE?

[80] The single transaction rule is found in s. 581(1), which provides that each count in an indictment must in general apply to a single transaction. It reads as follows (with subsections (2) and (3) also quoted for additional context):

581 (1) Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that the accused or defendant committed an offence therein specified.

(2) The statement referred to in subsection (1) may be

(a) in popular language without technical averments or allegations of matters that are not essential to be proved;

(b) in the words of the enactment that describes the offence or declares the matters charged to be an indictable offence; or

(c) in words that are sufficient to give to the accused notice of the offence with which he is charged.

(3) A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence or insufficiency of details does not vitiate the count.

[Emphasis added.]

[88] Were count 1 standing alone on the indictment, I would likely find it just barely within the broad and flexible parameters of the single transaction rule. However, on the indictment Mr. James faces, count 1 stands alongside other, duplicate counts, and in my view the single transaction rule must be considered in that light.

[89] In counts 2, 3, and 5, the Crown has chosen to treat each of the three types of alleged conduct as a single transaction (with count 5 alleging multiple occurrences of one of those transactions, through improper expense claims, as discussed). As Crown counsel submits, courts will respect the Crown’s exercise of discretion in the framing of charges on an indictment, absent some form of abuse in the process, or prejudice to the accused or the trial process, and no abuse is suggested in this case. However, in my view, with the Crown having chosen to characterize each of the three types of conduct as single transactions in counts 2, 3, and 5, it is problematic for the Crown to also characterize those same types of conduct as instances or occurrences of a more broadly conceived single transaction, for the purposes of count 1. [Emphasis by PM]

[90] Even if both ways of conceiving of the s. 122 offences are justifiable whether as three types of alleged conduct, each representing a single transaction, or, rather, as one “course of conduct” transaction, encompassing three occurrences or types of conduct. The difficulty is in presenting the jury with both concepts, each charged as a s. 122 offence.

CONCLUSION

[91] Taking this difficulty into account, along with the forms of potential prejudice to the trial process, discussed earlier, arising from the duplicative nature of count 1, as well as the relatively little significance count 1 could validly have in the trial, I conclude that count 1 should be quashed.

[92] This conclusion is based in part on an application of the various rules I have discussed, but it is also informed by the responsibility of a trial judge to manage the trial in a way that allows the process to be fair. I am not satisfied that with count 1 on the indictment the trial would proceed as smoothly as it should, or that it would be fair, in the sense of presenting the jury with a clear and manageable task.

[95] The application is granted.

[96] Count 1 is quashed.

If you have enjoyed the content of this free blog, please support us in continuing to provide this service free of charge by clicking on the advertisement below.