The Defence Toolkit – August 28, 2021

This week’s top three summaries: R v Anderson, 2021 NSCA 62: Impact of #Race and Culture Assessments, R v KJ, 2021 ONCA 570: W(D) applies to #experts, and R v Choudhry, 2021 ONCA 560: #access is not #control.

R v Anderson, 2021 NSCA 62

[August 17, 2021] Sentencing: Black Offenders and Impact of Race and Culture Assessments (IRCAs) [Reasons by Derrick J.A. with Beveridge, Fichaud, Farrar, and Beaton JJ.A. concurring]

AUTHOR’S NOTE: While the Black Lives Matter movement has been gaining traction in the streets and on the courthouse steps, the movement to recognize the impact of systemic racism on the plight of black offenders has gathered steam in the jurisprudence. Nova Scotia sat five justices on this matter signifying how important this decision is to black Nova Scotians and as an example to the rest of Canada.

IRCAs are essentially a report that is meant to do for black offender sentencing what Gladue reports have done for Indigenous sentencing. They will be a source of individual information to the sentencing judge about the impact of systemic racism on the lives of offenders before they are sentenced. It is meant to give judges the ability to meaningfully reduce reliance on incarceration for individuals affected in their lives by limited prospects flowing from the history of systemic racism against black people in Canada. While there are many things to absorb from the decision, perhaps the most important is that the NSCA declared that failing to take IRCA factors into account may amount to an error in law in a case and require intervention in the sentence.

For those of you in Alberta, these reports can be commissioned from the African Canadian Civic Engagement Council in Edmonton. Website: https://www.accec.ca Twitter: https://twitter.com/accec_canada?lang=en  Facebook: https://www.facebook.com/ACCEC.Canada/community/

Introduction

[1] This Crown appeal concerns the conditional sentence Rakeem Anderson received for firearms offences related to his possession of a loaded .22 calibre revolver. A conditional sentence of imprisonment has permitted Mr. Anderson to serve his sentence in the community under strict conditions. Mr. Anderson is African Nova Scotian.

[3] Directly relevant to this appeal is the now widely accepted fact that certain groups in society are disproportionately incarcerated, notably Indigenous offenders[2] and Black offenders.[3] Parliament introduced the conditional sentencing regime in an “attempt to remedy the problem of overincarceration”.[4]

[4] As the Ontario Court of Appeal observed in Borde nearly twenty years ago, the underlying reasons for the over-representation of Indigenous offenders in Canada’s prisons – poverty, substance abuse, lack of education, lack of employment opportunities, and vulnerable, marginalized communities – are also factors in the over-representation of offenders of African descent.

[5] We are now well aware that the disproportionate incarceration of Black offenders reflects the systemic discrimination and racism that permeates the criminal justice system. As the Supreme Court of Canada very recently noted, since R. v. Parks[5], “courts have acknowledged the wide range of ways the criminal justice system can disproportionately affect accused persons” who are Indigenous or racialized.[6]

[8] The experience of African Nova Scotian offenders like Mr. Anderson must be better reflected than it has been in the sentencing process and outcomes. In its intervention the Criminal Lawyers’ Association has said: “…it is time that the distinct mistreatment of Black people in society be given its due recognition in criminal sentencing”.

[9] This appeal gives us the opportunity to take up the challenge set by the Supreme Court of Canada in R. v. Friesen for appellate courts to “set a new direction, bringing the law into harmony with a new societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders…”[8]Appellate courts have a responsibility in such circumstances to equip  judges sentencing offenders of African descent with the tools to craft fit sentences. Where current sentencing practices in relation to African Nova Scotian offenders do not further the objectives of sentencing to “effectively deter criminality and rehabilitate offenders”, then “those practices must change”[9] in order to meet the needs of those offenders and their communities.

Facts of the Offence

[15] On November 2, 2018 at 10 p.m., Rakeem Anderson was stopped by police at a random motor vehicle checkpoint on Highway 102. He was alone. A pat-down search located a loaded .22 calibre revolver in his waist band.

Arguments & Evidence on Sentence

[25] The Crown argued denunciation and deterrence should be foregrounded for firearms offences with rehabilitation taking “a back seat”. Crown counsel acknowledged the relevance of Mr. Anderson’s “background” and “the history of African Nova Scotians” as “certainly something to be taken into account”. She said, “…we need to balance that with personal responsibility, as well”. Mr. Anderson, she said, “…must be held responsible for what I submit is a danger to society and to himself that he posed that day”.

[31] Robert Wright authored the first IRCA in Nova Scotia in “X”17 , a sentencing under the Youth Criminal Justice Act, S.C. 2002, c. 1. He provided a detailed description of his experience and education – he holds a Masters in Social Work and is a Registered Social Worker. He is a private practitioner who manages a small community-based mental health clinic. He talked about the causes and consequences of gun violence in the African Nova Scotian (ANS) community. He said Mr. Anderson had “extreme proximity” to gun violence due to a best friend being shot dead. Mr. Wright observed this as having influenced Mr. Anderson’s sense of personal vulnerability to threats that might confront him.

[33] Mr. Wright identified two community-based programs: 902 Man Up, an Afrocentric peer mentoring program run by community volunteers for young Black men involved in the criminal justice system, and Sobaz Benjamin’s IMOVE project.

[34] Mr. Wright was asked by Crown counsel how community programming, rather than programming in the federal penitentiaries, was going to more effectively address Mr. Anderson’s issues. Mr. Wright explained that programming in federal prisons is generic, not Afrocentric. It was his opinion that a noncustodial sentence would better ensure Mr. Anderson’s rehabilitation and improve the chances of his long term ability to be a law-abiding and productive member of the community. He said about rehabilitation: “I would say that putting him in jail tomorrow would lessen our chances rather than increase them”. In response to the Crown’s questions, Mr. Wright asked: “Do we send him to a system we know will fail him or do we send him to a place that has a better chance of connecting to the issues that were identified in the [IRCA]?”

[37] Ms. Hodgson described the education system in Nova Scotia as “Eurocentric” and not culturally responsive to Black students. She saw a connection between the deficits in the education system and involvement in the criminal justice system. She said the education system has failed African Nova Scotian students through all grade levels and placed a disproportionate number of them on Individual Program Plans (IPPs). It was Ms. Hodgson’s evidence that an IPP education limits access to community college programs. According to her, university is not even an option: the door to admission is closed for high school graduates with an IPP on their transcripts.

[38] Mr. Anderson was placed in an IPP in Grade 2. Ms. Hodgson said this removed any opportunity to see if he could meet the standards of the regular curriculum.

[39] It was Ms. Hodgson’s opinion that the under-representation of Black teachers, counsellors and administrators throughout the school system meant Black students were only exposed to “White excellence”, undermining their self-esteem. Black faces and experiences are absent starting in the earliest grades. A Black child on an IPP experiences a constellation of negative and alienating forces.

[40] Ms. Hodgson identified the effects of marginalizing Black students:

And that’s why I speak highly of Afrocentric education because when you don’t see yourself in the material and you don’t see yourself in the curriculum, you don’t see your experience or your people as part of learning, as part of achievement, as part of success; well, how can you obtain it? And so you see a higher percentage of black students getting kicked out of school, being sent to the office, being suspended, you know, dropping out. And so this…his path already begun as a very early age.

[41] Ms. Hodgson testified “When you look at education through a cultural lens, you see a different person. You see a different student”.

[42] Ms. Hodgson told the judge the Black Educators Association was currently offering a Continuation of Adult Education Program (CAEP) in Dartmouth North that is Afrocentric for General Equivalency Diploma (GED) and high school completion. The program utilizes materials that coincide with the Nova Scotia curriculum with added Afrocentric content and emphasis.

[47] Like Mr. Wright, Ms. Hodgson viewed diverting Mr. Anderson from involvement in the criminal justice system was more likely to be achieved through a community-based sentence than by incarcerating him.

[48] Jude Clyke testified to having been employed by the Correctional Service of Canada for twenty years. He has worked in various capacities: as a correctional officer and a parole officer at Springhill Penitentiary, and as a parole officer in the community.

[49] Mr. Clyke told the judge that throughout his experience with corrections, there has always been an over-representation of African Canadian offenders. He indicated there was “absolutely nothing” in either the institutional or community contexts “that is Afrocentric in scope or positioning. And there are no culturally specific supports or interventions for the population”. He gave the judge a stark picture of correctional programming for offenders of African descent:

…There is no strategic planning that I am aware of and, most times, funding is based on … funding is sporadic and there’s nothing kind of consistent associated with this. There is no dedicated staffing. There is no dedicated resources within the whole region for African Canadian offenders.

So Mr. Anderson, in all likelihood, will not have a supervisor who understands his cultural/historical context. He will not have program officers who are culturally responsive within their classrooms. He will not have psychologists who, again, have that cultural relevancy, that cultural education piece. And there will be no Afrocentric or culturally specific programming.

[50] Mr. Clyke indicated that if Mr. Anderson was sentenced to a federal penitentiary, he would receive “generic” programming from the time he entered the correctional system until warrant expiry.

Trial Decision

[56] The judge understood the challenge that confronted her: …

[6] I struggle however as often the principles of sentencing do not address the underlying root causes of offending. This is particularly so for marginalized segments of the public whose offending is linked to systemic racism and poverty. If I am to consider the circumstances of the offender as well as the circumstances of the offence, it is essential that I understand the reasons leading to criminal behaviours.

[69] As she drilled into her analysis, the judge articulated the tensions between the sentencing principles to be applied and the possibilities of an enlightened approach:

[91] Deterrence assumes that offenders weigh the pros and cons of a certain course of action and make rational choices. It also assumes that people can freely choose their actions and behaviours – as opposed to their offending being driven by socio-economic factors such as poverty, limited education, mental health and addiction issues and systemic discrimination and marginalization.

[92] Those of us who work in the Criminal Justice System know only too well that many times there is a causal connection between socio-economic factors and crime. Deterrence and denunciation do not address these factors. Our prisons and our jails are full of these marginalized individuals, for whom there are few resources to address the root causes of their offending. And the costs associated with incarceration – both human and fiscal – are substantial. It costs well over $100,000 per year per inmate in many prisons and jails, leaving little for Afrocentric planning and reintegration, for example.

[94] Regardless of the sentence imposed on Mr. Anderson, it will likely do little to deter others in similar circumstances. The socio-economic forces at play are so powerful and are firmly entrenched in systemic racism and marginalization.

[71] It was the judge’s view that a conditional sentence of imprisonment provided “the opportunity to blend principles of deterrence, denunciation with restorative options of accountability and reparation”. She concluded that a conditional sentence was appropriate in Mr. Anderson’s case, a sentence she described as “a substantial jail term in the community under stringent conditions”:

Impact of Race and Culture Assessments (IRCAs)

[92] As I noted at the start of these reasons, judges have recognized that, while the history of Indigenous people in Canada is distinct, as is their place in our legal and constitutional framework, African Canadians have experienced many of the same effects of discrimination and marginalization.

[93]         Background and systemic factors are therefore similarly relevant to sentencing offenders of African descent. Ipeelee held there is “nothing in the Gladue decision which would indicate that background and systemic factors should not also be taken into account for other, non-Aboriginal offenders”.[30] In R. v. Morris[31], Justice Nakatsuru observed:

[9]  … The criminal law has recognized that there are cases where, in order to determine a fit and proportionate sentence, consideration must be given to an individual’s systemic and social circumstances. These circumstances may extend beyond a person who is being sentenced to include factors such a systemic discrimination and historical injustice. This has been recognized by the criminal courts, particularly in the case of Indigenous offenders. While the distinct history of colonial violence endured by Indigenous peoples cannot simply be analogized to Black Canadians, I found that the ability to consider social context in a sentencing decision is extended to all under section 718.2(e) of the Criminal Code…

[94] African Nova Scotians have a distinct history reflected in how they arrived here and their experience over the past 400 years. This history is rooted in systemic and institutionalized racism and injustice.

An Abbreviated Survey – Acknowledging the History of Anti-Black Racism in Nova Scotia

[95] Persons of African descent have lived in Nova Scotia for at least 400 years. In its factum and Book of Authorities, the ANSDPAD Coalition mapped out the historical context from which African Nova Scotians have emerged. It is a history of slavery, oppression, and direct and systemic racism, braced by laws and legal practices.

[96] African Nova Scotians are descendants of Jamaican Maroons, Black refugees and freed and enslaved Black Loyalists. As the ANSDPAD Coalition points out, African Nova Scotians are the only people in Nova Scotia whose history involves slavery, including slavery lawfully practiced in the province. Slavery perpetrated extreme violence and dislocation. In the Coalition’s words:

…It separated us from our original cultures, languages, traditions and peoples. It subjected us to horrific violence and trauma in a hostile and foreign environment. It is a testament to African Nova Scotian resilience, ingenuity and resourcefulness, that our people survived and thrived within this context of oppression. It is within this history that we developed our unique cultural, social, economic, political, spiritual and social traditions, practices, institutions and ways of relating to sustain us. It is through this context that African Nova Scotians are a distinct people. (emphasis in the original)

[97] An examination of the history and experience of African Nova Scotians reveals the nature and extent of their oppression:

•      Enslavement and the legal status as property of White men.
•      Re-enslavement of freed slaves by profiteers and slave marketers.
•      Forced migration as the chattels of American loyalists after the Revolutionary War.
•      Servitude to Loyalists households even for freed slaves.
•      Lawful segregation following the formal abolition of slavery in the British colonies. Examples of legally sanctioned racial segregation existed for military service, schooling, and, as the 1946 case of Viola Desmond[32] highlighted, even in cinemas.
•      The denial of ownership of real property. Black settlers were given tickets of location or licenses of occupation rather than legal title to their land. Denied clear title, Black settlers could not sell or mortgage their property, or legally pass it down to their descendants on death.[33]
•      Exclusion under the 1864 Juries Act as a consequence of not holding a freehold estate.

[98] The ANSDPAD Coalition notes that in the 1960’s Nova Scotia began the process of rescinding its segregationist laws and policies. These measures, the building blocks of subsequent law reform, while significant,

…have not repaired the cumulative damage caused by centuries of legally sanctioned racism in this province. The social, cultural, political and economic impacts of slavery and segregation continue to reverberate within the African Nova Scotian community…

[99] The experience of racism and segregation inflicted deep transgenerational wounds. The ANSDPAD Coalition, referring to the Royal Commission of Inquiry into the Prosecution of Donald Marshall, Jr.[34], noted the mistrust that African Nova Scotians have felt toward the legal institutions in the province:

…While Nova Scotians were generally appalled at the conduct of the police and justice system in Mr. Marshall’s case, the Royal Commission’s findings came as little surprise to many within the African Nova Scotian minority. As a community, we had come to expect systemic discrimination and barriers to access to justice when dealing with the police and the courts. It was thus with appreciation, but skepticism, that many African Nova Scotians greeted the Commission recommendation: “that the Chief Justices and the Chief Judges of each court in the province exercise leadership to ensure fair treatment of minorities in the system”.

[100] Citing the recent documentation of illegal street checks of Black people in the Halifax region[35], the ANSDPAD Coalition observed that, “…even in the 21^st century, law, law enforcement, and the justice system in Nova Scotia, have continued to operate in ways that systematically discriminate against Nova Scotians of African descent”.

Constrained Choices: the Stranglehold of Racism 

[101] Mr. Anderson’s background and experiences provide a window into the lives of many African Nova Scotians who appear before the courts to be sentenced. Mr. Anderson’s life has been characterized by poverty, housing instability, family breakdown, a lack of culturally relevant educational opportunities, limited employment prospects[36], lack of positive role models, disrupted community attachments, transgenerational trauma, loss of close friends to violence, and hopelessness. As Mr. Wright told the sentencing judge: “Young Black men are dramatically overrepresented on both ends of the gun”.[37]

[102] The history of slavery and racism, the trauma of marginalization and exclusion, discrimination and injustice are the threads that woven together are the fabric of the lives of many African Nova Scotian offenders.

[103] The highly individualized sentencing process that seeks to determine a fit and proportionate sentence for an African Nova Scotian offender must take account of the social context of racism and historical injustice. This context can be made available to sentencing judges through the use of IRCAs.

The Evolution of IRCAs

[104] The first known IRCA[38] was deployed in R. v. “X”, the sentencing in the Youth Justice Court of Nova Scotia of a Black youth for attempted murder. It contributed to the dismissal of the Crown’s application for “X” to be sentenced as an adult. The IRCA in “X” was authored by Robert Wright. It provided “a more textured, multi-dimensional framework for understanding “X”, his background and his behaviours”[39].

[105] Subsequently, IRCAs have been considered in a number of sentencings in this province, such as: R. v. Elliott[40], R. v. Desmond [41], Gabriel[42], R. v. Perry[43], and R. v. N.W.[44] (a sentencing for first-degree murder under the Youth Criminal Justice Act). IRCAs also featured in Justice Nakatsuru’s decisions in R. v.Jackson[45] and R. v. Morris[46].

[110] I conclude this survey on IRCAs with some comments about judicial notice. In his submissions, Mr. Burrill suggested the calling of evidence, as was done at Mr. Anderson’s sentencing hearing, should not have to be undertaken in every case. The judge, without objection from the Crown or defence, sought to hear from witnesses about the effects of systemic racism and disadvantage on Mr. Anderson. While this approach is at the judge’s discretion or may be necessary if a qualifications voir dire is required[50], it should not be taken as creating a prerequisite for reliance on the contents of an IRCA. The sentencing judge is best positioned to determine how the sentencing should be conducted.

[111] Certain aspects of an IRCA, however, should not be subject to challenge. Like racial prejudice, acknowledged by the Supreme Court of Canada in R. v. Spence as “notorious and indisputable”[51], the existence of anti-Black racism can be admitted on the basis of judicial notice without the need for evidence[52]. Judges are entitled to take notice of racism in Nova Scotia and have done so.[53] There is no justification for requiring offenders to produce viva voce evidence of this pernicious historical reality.[54] That said, including in an IRCA the history of slavery and systemic racism in Nova Scotia and its effects on African Nova Scotian communities is indispensable. It will contribute to deepening the awareness and understanding of judges, Crown prosecutors, defence counsel, probation officers, correctional officials, parole officers and others who are dealing with the offender.

How Should IRCAs Inform the Sentencing of African Nova Scotian Offenders?

[115]   Sentencing is an inherently individualized process.[56] It is a fundamental duty of a sentencing judge to pay close attention to the circumstances of all offenders in order to craft a sentence that is genuinely fit and proper. What is required in the sentencing of Indigenous offenders applies to offenders of African descent who are also entitled to “an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences…”[57]

[116]   Sentencing judges play a significant role in how offenders are punished and rehabilitated through the criminal justice system. As in the case of Indigenous offenders, they decide whether an offender of African descent is incarcerated or receives a sentence that can play “a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime”.[58] Notwithstanding that sentencing judges are far downstream from the forces that have contributed to bringing offenders before them, they are influential at a critical juncture: they determine if incarceration and separation from society is the course to be followed or if a remedial option can serve the objectives of sentencing and achieve a just outcome.

[118]   The “method” employed for sentencing African Nova Scotian offenders should carefully consider the systemic and background factors detailed in an IRCA. It may amount to an error of law for a sentencing judge to ignore or fail to inquire into these factors. A judge does not have to be satisfied a causal link has been established “between the systemic and background factors and commission of the offence…” These principles parallel the requirements in law established by the Supreme Court of Canada in relation to Gladue factors in the sentencing of Indigenous offenders.[59] As with Indigenous offenders, while an African Nova Scotian offender can decide not to request an IRCA, a sentencing judge cannot preclude comparable information being offered, or fail to consider an offender’s background and circumstances in relation to the systemic factors of racism and marginalization. To do so may amount to an error of law.[60] [Emphasis by PM]

[121]   As the ANSDPAD Coalition asked this Court to recognize, the social context information supplied by an IRCA can assist in:

•      Contextualizing the gravity of the offence and the degree of responsibility of the offender.
•      Revealing the existence of mitigating factors or explaining their absence.
•      Addressing aggravating factors and offering a deeper explanation for them.
•      Informing the principles of sentencing and the weight to be accorded to denunciation and deterrence.
•      Identifying rehabilitative and restorative options for the offender and appropriate opportunities for reparations by the offender to the victim and the community.
•      Strengthening the offender’s engagement with their community.
•      Informing the application of the parity principle. “Courts must ensure that a formalistic approach to parity in sentencing does not undermine the remedial purpose of s. 718.2(e)”.[63]
•      Reducing reliance on incarceration.

[122]   The Crown’s roadmap analysis aligns with the ANSDPAD Coalition’s holistic application for IRCAs. It is an approach this Court endorses. IRCAs can enrich and guide the application of sentencing principles to Black offenders. The systemic factors described by the IRCA in Mr. Anderson’s case and his experiences as an African Nova Scotian navigating racism and marginalization are not unique. IRCAs should be available to assist judges in any sentencing involving an offender of African descent. IRCAs can ensure judges, when engaged in “one of the most delicate stages of the criminal justice process in Canada”[64], are equipped to view the offender through a sharply focused lens.

[123]   In explaining their sentences, judges should make more than passing reference to the background of an African Nova Scotian offender. It may not be enough to simply describe the offender’s history in great detail. It should be possible on appeal for the court to determine, based on the record or the judge’s reasons, that proper attention was given to the circumstances of the offender. Where this cannot be discerned, appellate intervention may be warranted.

[125]   The historic discrimination and racism to which African Nova Scotians have been subjected is antithetical to societal values of equality and inclusion. The Supreme Court of Canada in R. v Nasogaluak, addressing, in the context of sentencing, the impact of a Charter breach, recognized the role of the Charter in the sentencing regime: “A sentence cannot be “fit” if it does not respect the fundamental values enshrined in the Charter”.[65] This principle is to be applied purposively. The sentencing process as a whole must accord with Charter values, including the right to equality before and under the law. Differential treatment may be needed in order to serve the goals of substantive equality[66] otherwise how are historic inequalities confronted and addressed, ongoing systemic discrimination ameliorated, and continued disadvantage avoided?

IRCAs in Conditional Sentences

[131] In assessing the probation/penitentiary issue and determining the range, systemic and background factors that could reasonably and justifiably impact the sentence imposed must be considered. IRCAs are a vital source of evidence for resolving these issues. The judge sentencing Mr. Anderson did not have the benefit of sentences for s. 95(1) offences that had been crafted with IRCA evidence taken into account. Cases such as Nur were decided without such evidence.

[132] The question of whether the range can include a sentence of two years less a day should be refracted through the prism of the factors addressed by the IRCA. It is not a matter of determining if deviating from the range for the offence is warranted. Determining the range itself must be informed by the factors addressed in the IRCA and the statutory prerequisites for a conditional sentence. As the ANSDPAD Coalition submitted, IRCAs should be employed to individualize sentences, taking account of factors that have previously been absent from the analysis. Sentence ranges will have to be re-evaluated as they have been developed without the benefit of a fully contextualized analysis. As noted, a judge’s determination of the applicable sentencing range needs to be accorded a high degree of deference.

[134]   This, the Crown says, will lead to a body of jurisprudence that has incorporated the factors addressed by IRCAs. In the meantime, “departure from a traditional range that is not itself informed by systemic and background factors will not necessarily constitute an error in principle or result in an unfit sentence”.[74]

[135]   Once a judge has determined that the appropriate range of sentence for the offender includes a term of imprisonment of two years less a day, they then must address whether the offender should be permitted to serve their sentence in the community. As I noted earlier, a conditional sentence can only be ordered if the judge:

…is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.[75]

[136]   The “endangerment of the community” factor consists of two components: (1) the risk of re-offence; and (2) the gravity of the damage should re-offending occur.[76] These elements were extensively reviewed in Proulxwhich held that incarceration would be warranted where there is a “real risk” of re-offending and, particularly in the case of violent offenders, where there is even a minimal risk of “very harmful future crime”.[77]

The Risk of Re-Offending

[138]   Proulx sets out a variety of factors relevant to the assessment of whether the offender poses a risk of re-offending. The decidedly individualized nature of sentencing is a critical aspect of the analysis. In the case of African Nova Scotian offenders, these factors should be evaluated in the context of the information contained in the IRCA. The IRCA may cast previous non-compliance with court orders and the offender having a criminal record in a different light, one that does not preclude the appropriateness of a non-custodial sentence. Systemic racism, over-policing, and constrained opportunities for African Nova Scotians mean the existence of a criminal record must be considered in a contextualized manner. A criminal record may be the result of limited choices, the “normalized lack of achievement”,[79] the corrosive effects of racism and prejudice, and the absence of positive role modeling. As the Crown pointed out in its roadmap, association with criminalized peers,

…must be contextualized by a consideration of the ANS experience. It is simply a reality that some people in marginalized communities will have criminal records. That is the product of systemic racism and overrepresentation in the justice system. Absent any connection to criminal activity with any of these associates, it would unduly discriminate to factor this against the availability of a CSO.

[139]   It was the Crown’s submission that the judge properly did not “superficially conclude that, because Mr. Anderson may have associates with criminal records, he constitutes a danger to the community. It must be informed by the IRCA”.

[141]   As for the degree of harm if there is re-offending, Proulx held that “a small risk of very harmful future crime”[81] could be the basis for a judge deciding a conditional sentence is not appropriate. Again, risk may be attenuated by suitable conditions and culturally relevant supports in the community for the African Nova Scotian offender. Sentencing judges will need to consider what an IRCA can tell them about the options available for the offender and the offender’s openness to engage in community-based rehabilitation.

The Fundamental Purpose and Principles of Sentencing

[143]   A sentence that is proportionate to the seriousness of the offence enhances public confidence in the administration of justice by ensuring justice is seen as fair and rational. While the “normative character of the offender’s actions” and “the consequential harm” to victims and the community must be reflected in the sentence[82], the seriousness of the offence should not be assessed in a vacuum with no consideration given to the context in which it was committed and its surrounding circumstances.

[146]   The moral culpability of an African Nova Scotian offender has to be assessed in the context of historic factors and systemic racism, as was done in this case. The African Nova Scotian offender’s background and social context may have a mitigating effect on moral blameworthiness. In Ipeelee, the Supreme Court of Canada recognized this principle in relation to Indigenous offenders.[84] It should be applied in sentencing African Nova Scotians. Sentencing judges should take into account the impact that social and economic deprivation, historical disadvantage, diminished and non-existent opportunities, and restricted options may have had on the offender’s moral responsibility. The judge here mined the rich vein of the IRCA evidence and closely and comprehensively examined it to better understand how to view Mr. Anderson’s possession of the gun.

[147]   The Supreme Court of Canada in Ipeelee recognized that factors routinely considered in sentencing must be re-evaluated by judges “to ensure that they are not contributing to ongoing systemic racial discrimination”.[85] The Court, referenced a quote from Professor Timothy Quigley that can be equally applied to African Nova Scotian offenders:

Socioeconomic factors such as employment status, level of education, family situation, etc., appear on the surface as neutral criteria. They are considered as such by the legal system. Yet they can conceal an extremely strong bias in the sentencing process. Convicted persons with steady employment and stability in their lives, or at least prospects of the same, are much less likely to be sent to jail for offences that are borderline imprisonment offences. The unemployed, transients, the poorly educated are all better candidates for imprisonment. When the social, political and economic aspects of our society place Aboriginal people disproportionately within the ranks of the latter, our society literally sentences more of them to jail. This is systemic discrimination.[86]

[148]   As Ipeelee states, the imposition of just sanctions, a purpose of sentencing, must not be grounded in discrimination. This applies to the sentencing of African Nova Scotian offenders.

[151]   The judge’s comments do not make her an outlier. In the preceding paragraph of her reasons she had quoted the statement from the Supreme Court of Canada in Gladue: “…although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence, denunciation, and rehabilitation, there is widespread consensus that imprisonment has not been successful in achieving some of these goals”.[89] Gladue is not the only instance when the Court explicitly acknowledged that locking offenders up has not achieved the goals intended by traditional sentencing principles. In Proulx: “The empirical evidence suggests that the deterrent effect of incarceration is uncertain”.[90]  In Nur: “Doubts concerning the effectiveness of incarceration as a deterrent have been longstanding”.[91]

[152]   Proulx drove the point home in the context of discussing conditional sentencing as the means by which Parliament has mandated the “expanded use…of restorative principles in sentencing as a result of the general failure of incarceration to rehabilitate offenders and reintegrate them into society”.[92] (emphasis added)

[153]   While scepticism is justified, judges are nonetheless required to factor denunciation and deterrence into their sentencing calculus. Where the appropriateness of a conditional sentence is being considered, it will be necessary for the judge to determine if denunciation and deterrence can be served by punitive conditions that restrict the offender’s liberty.[93] And general deterrence as a sentencing principle must be applied with caution so that it does not obstruct the fashioning of a proportionate sentence. A grossly disproportionate sentence crafted to send a deterrent message to would-be offenders will attract appellate intervention.[94]

[156]   Societal values must not be lost in the analysis. Denunciation may need to be emphasized to such an extent that “incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct”.[100] There are also statutory provisions that require judges to prioritize denunciation and deterrence.[101] The Crown’s roadmap references Proulx which held:

[114]  Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence. Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served.

[157]   Proulx noted that while aggravating circumstances will heighten the need for denunciation and deterrence, “…it would be a mistake to rule out the
possibility of a conditional sentence ab initio simply because aggravating factors are present…each case must be considered individually”.[102]

[158]   If a penitentiary sentence is imposed, s. 743.2 of the Criminal Code mandates that reports relating to the offender – and this must now include IRCAs if one is submitted at the sentencing hearing – be attached to the warrant of committal.[103]

[160]   Accordingly, denunciation and deterrence – general deterrence in Mr. Anderson’s case – must be assessed contextually in sentencing African Nova Scotian offenders. They cannot be regarded as static principles to be applied rigidly in what is a highly individualized process. Judges should look to IRCAs to assist them in determining whether the objectives of denunciation and deterrence can be satisfied as effectively in the community under a conditional sentence order as in a jail. In making this determination, the judge will consider the nature of the conditions that could be imposed, the duration of the conditional sentence, “and the circumstances of the offender and the community in which the conditional sentence is to be served”.[104] All “relevant evidence” should be taken into account in the assessment.[105]

[163]   Proulx has established that it is an error in principle not to seriously consider imposing a conditional sentence where the statutory prerequisites have been met.[106] As in Mr. Anderson’s conditional sentence, conditions can underpin and fortify a restrained, restorative approach and allow for a sanction that is responsive to the disproportionate incarceration of African Nova Scotians.

Conclusion

[164] The Crown originally appealed Mr. Anderson’s conditional sentence on the grounds the judge underemphasized denunciation and deterrence and imposed a sentence that was demonstrably unfit. Its Notice of Appeal filed on March 12, 2020, sought an order to increase the sentence to one of actual incarceration. The Crown’s position has evolved substantially since then. The sentencing of African Nova Scotian offenders must similarly evolve. This is to be accomplished by judges taking into account evidence of systemic and background factors and the offender’s lived experience, ideally developed through an IRCA, at every step in the sentencing process, and in the ultimate crafting of a just sanction. Mr. Anderson’s sentencing shows that change is possible, for the offender, and as significantly, for our system of criminal justice.

Disposition

[165] I would therefore grant leave to appeal but dismiss the appeal.

R v KJ, 2021 ONCA 570

[August 19, 2021] Application of R v W(D) to Expert Witness Testimony [Reasons by L.B. Roberts J.A., with David Watt and M. Jamal JJ.A. concurring]

AUTHOR’S NOTE: Most W(D) cases are about domestic violence with two witnesses testifying. Often on appeal, the error is simply failing to consider whether the accused’s evidence (even though not believed) raised a reasonable doubt anyway.  Here that same common cause of legal error at trial was applied to a defence expert. Trials are not supposed be won as a credibility contest between Crown and defence witnesses. The Defence has a significant advantage in law: the Crown’s case has to be proven beyond a reasonable doubt. This case will assist defence counsel to make sure that their experts are afforded that same legal advantage. 

Overview

[1] The appellant appeals her conviction for aggravated assault against N.T. when he was about 13 months old. She received a two-year custodial sentence but did not seek leave to appeal her sentence.

[2] The facts underlying the conviction are tragic. The appellant was N.T.’s caregiver. On July 20, 2016, N.T. suffered a seizure while in the appellant’s care and was taken to the hospital by emergency personnel. He had a severe head injury. His treating physicians could not determine the cause of N.T.’s head injury, though they suspected that he had sustained trauma to his head.

[3] This appeal turns on the trial judge’s treatment of the medical expert evidence on the causation of N.T.’s head injury.

Facts

[6] At the time of the offence, the appellant had just started to provide day care services to N.T., who was then 13 months old. She had been looking after his almost four-year-old brother, J.T., for several years without any incident. A childcare worker with 11 years of experience, she had cared for children in her own home for almost 5 years. There had never been any issues with the children in her care, and she had never previously spoken to the police or the Children’s Aid Society. The appellant and N.T.’s parents had known each other for years. N.T.’s parents indicated that they trusted her and did not believe that she would intentionally harm their children in any way.

[7] On July 20, 2016, by all accounts, N.T. had enjoyed a typically happy morning and exhibited no signs of illness or injury. He breakfasted with his mother and brother, and watched television with them before his mother dropped them off at the appellant’s house at around 8:00 a.m. The appellant noted in her police statement that N.T. and his brother had a regular morning with her.

[8] At around 11:40 a.m., the appellant called N.T.’s mother, E.T., and advised that there was something wrong with N.T.: his eyes looked abnormal, his body was stiff, his head was banging, and she thought he had stopped breathing. Paramedics were called, and they transported N.T. to the hospital for emergency care.

[9] N.T.’s medical records from his hospital stay were filed on consent. They indicated that upon his arrival at the hospital N.T. was having a seizure, and that he had the following injuries: a large subdural haematoma on the left side of his brain; numerous retinal hemorrhages; ischemic injuries from lack of blood flow caused by the haematoma; mild compression fractures in his upper vertebrae; and a number of small bruises, including on the back, left eye, head, and groin. N.T.’s treating doctors were unable to determine the exact cause of N.T.’s injuries but suspected that he had sustained trauma to his head.

[10] N.T.’s parents testified that he had experienced a couple of recent falls. About a week before July 20, N.T. did a barrel roll off their deck, like a cartwheel, and hit the back of his head on patio stones. On July 16 or 17, N.T. slid out of the bathtub onto the bathmat, his face made contact with the floor, and he ended up with a mark on his left temple. His parents said that N.T. was well after each fall.

[11] The appellant voluntarily gave a statement to police on July 21, 2016. She did not testify at trial. In her police statement, the appellant denied hurting N.T. in any way. She, however, recalled a few occasions when N.T. may have hit his head. On July 19, when she left him briefly in the living room to answer the door, N.T. fell and hit the coffee table, which to her sounded like he hit his head. Although she did not tell the interviewing officer, in one of her text messages to E.T., the appellant said he vomited later that day. The appellant told the interviewing officer about how she thought that on July 20, N.T. may have hit his head against the wrought iron child stool when he was upset and twisting in it during lunch, or later against the change table when he was “almost banging his head” as she tried to change his diaper. According to the appellant, N.T. did not show any signs of unwellness until sometime later that morning when she went to check on him while he was napping, picked him up, and tried to change his diaper again. She then saw the signs of illness that she immediately reported by telephone to N.T.’s mother.

[12] There was no dispute at trial that N.T. had tragically sustained a serious brain injury that would likely result in future developmental deficits. The trial turned on the conflicting expert evidence called by the Crown and the defence as to the cause of N.T.’s head injury.

[13] The Crown’s expert, Dr. Baird, opined that no underlying medical condition or recent illness could explain N.T.’s injuries and concluded that the only “remaining plausible explanation” was “severe inflicted head trauma,” which he believed had to have occurred on the change table when the appellant was changing N.T.’s diaper. He testified that while persons with injured brains can have seizures days after an accident, the type and degree of retinal hemorrhages N.T. suffered were not consistent with the minor short falls and other incidents described by N.T.’s parents and the appellant. He believed that if N.T.’s injuries had been caused by an accident, the accident needed to be so significant and dramatic that the event would not have gone unnoticed by his caregiver. He was of the view that since N.T. exhibited normal neurological function before July 20 and “because there was no report of any episode of accidental trauma which has any authoritative accepted scientific literature to be associated with the types of hemorrhages that he has”, N.T.’s brain injury was caused by severe acceleration/deceleration forces that were inflicted upon him immediately before the hospital visit.

[14] The appellant’s expert, Dr. Ramsay, also ruled out any underlying disorder or disease as a possible cause for N.T.’s subdural bleeding. He agreed that N.T.’s subdural bleeding, retinal hemorrhages, and damage to the brain (“the triad”) are typical of acceleration/deceleration injuries. However, he cautioned against reliance on the triad alone because of its unreliability in demonstrating an impact head injury. He noted that there were factors present which went against the finding of an acceleration/deceleration injury, including N.T.’s large subdural hemorrhage, and the localized brain damage that was explained by an expanding haematoma. In addition, he testified that N.T.’s injuries, specifically his retinal hemorrhages and subdural hemorrhages, can be caused by short falls. Dr. Ramsay explained that adults and children can suffer from subdural haematomas without being symptomatic immediately. They experience a “lucid interval” of seeming wellness until the accumulation of subdural blood and consequent compression of the brain results in drowsiness, headache, and loss of consciousness. Dr. Ramsay opined that while N.T.’s injuries could have been caused by the application of acceleration/deceleration forces, they also could have been caused by one or a combination of the three short falls he suffered.

[15] The trial judge preferred and accepted the Crown’s expert evidence that the only possible explanation for N.T.’s injury was severe inflicted head trauma, likely from acceleration/deceleration forces. The trial judge found that the injury could not have been self-inflicted as there was no evidence of a significant fall or a similar accident. She therefore concluded that the appellant intentionally applied force to N.T. and caused his head injury while he was in her care on July 20, 2016.

Issues

[17] As I shall explain, the trial judge’s approach to assessing the expert evidence on causation was flawed. She first chose which expert she preferred and then viewed the other expert’s evidence and the rest of the trial evidence through that lens. This was an error. The trial judge should have considered the expert evidence, along with all the other evidence at trial, through the analytical framework prescribed by the Supreme Court in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, to determine whether the Crown had met its heavy burden of proving the appellant’s guilt beyond a reasonable doubt.

Analysis

[18] In the case of conflicting expert evidence that is crucial to understanding the material issues to be decided, it is tempting for a trier of fact merely to choose one expert over another, and to allow an expert witness’s evidence to distort the fact-finding process and overtake the task of objectively assessing the totality of the evidence at trial: R. v. Parnell (1983), 1983 CanLII 3602 (ON CA), 9 C.C.C. (3d) 353 (Ont. C.A.), at p. 364, leave to appeal refused, [1984] S.C.C.A. No. 333; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 21. It is common ground that such an approach constitutes legal error. Unfortunately, that is what occurred in this case.

[19] A trier of fact must be careful to consider all of the evidence through the W.(D.) analytical framework. Specifically, to convict an accused, a trier of fact must be satisfied beyond a reasonable doubt, based on the totality of the evidence, that all the elements of the charged offence have been proven. This means that the evidence of each witness has to be assessed in the light of the totality of the evidence without any presumptions except the general and over-riding presumption of an accused person’s innocence: R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230, at para. 32. Expert evidence is only a part of the evidence that a trier of fact is required to assess in order to determine if the Crown has proven an accused’s guilt beyond a reasonable doubt: see R. v. Wade (1994), 1994 CanLII 10562 (ON CA), 18 O.R. (3d) 33 (C.A.), at p. 43, rev’d in part, 1995 CanLII 100 (SCC), [1995] 2 S.C.R. 737; R. c. Blackburn, 1999 CanLII 13509 (Que. C.A.), at p. 23; and R. v. Smith (2001), 2001 CanLII 20968 (ON CA), 161 C.C.C. (3d) 1 (Ont. C.A.), at para. 117, leave to appeal refused, [2002] S.C.C.A. No. 156.

[22] Even when read generously and as a whole, the trial judge’s reasons demonstrate that she did not consider the expert evidence in relation to the totality of the evidence at trial. Instead, she determined in isolation that she preferred Dr. Baird’s evidence before she turned to the rest of the trial evidence, which she then assessed through the fixed lens of Dr. Baird’s opinion. This led her to misapply the W.(D.) framework. She rejected not only the defence expert evidence of Dr. Ramsay, but all the defence evidence because of its inconsistencies with Dr. Baird’s opinion. Further, she never meaningfully considered whether Dr. Ramsay’s evidence, along with all the other evidence that supported the defence, left her with a reasonable doubt as to the appellant’s guilt.

[23] The trial judge began her analysis of the competing expert testimony by effectively indicating, at para. 163 of her reasons that the test was whether she preferred one expert over the other and that she ultimately preferred Dr. Baird’s opinion:

For Dr. Ramsay’s alternate theory to be accepted, the court must prefer Dr. Ramsay’s evidence to the evidence of Dr. Baird on a number of key issues, including whether a child who had suffered injuries similar to [N.T.’s] can experience a lucid interval post-injury. Dr. Baird was unshaken in his view that in his experience and his review of the literature, there is nothing to support Dr. Ramsay’s “lucid interval” theory. [Emphasis added.]

[24] The trial judge’s uncritical acceptance of Dr. Baird’s evidence stands in marked contrast to her unfavourable treatment of Dr. Ramsay’s evidence where it differed from Dr. Baird’s opinion. While it was certainly open to the trial judge to find frailties with Dr. Ramsay’s evidence, her negative treatment of his evidence seems to have arisen from her acceptance of Dr. Baird’s evidence against which she was comparing it.

[25] The trial judge concluded that “the greatest frailty in Dr. Ramsay’s opinion related to his assertion that children can have lucid intervals following a head impact that has caused subdural bleeding.” She appears to have rejected Dr. Ramsay’s opinion about lucid intervals principally because it was inconsistent with Dr. Baird’s opinion, and because Dr. Ramsay did not reference any literature to support the lucid interval theory in his report and could not remember the names of relevant authors at the trial. However, the trial judge’s observation on the last point was incorrect. During his cross-examination, Dr. Ramsay referred to a paper by Denton and Mileseuvic, which described children who developed subdural haematomas after short falls, but who were well for a day or two after the falls.

[26] Although the trial judge correctly stated, at para. 181, of her reasons that “the opinions offered by Drs. Baird and Ramsay may not be permitted to usurp [her] role as the trier of fact” and that “while [she] may consider the opinions offered by each expert on how [N.T.] came to be injured, [her] decision must be based on all the evidence that [she] accepts,” she did not follow these instructions. Rather, before she looked at all the other trial evidence, including the appellant’s statement to police, the trial judge concluded, at para. 188:

For all … the foregoing reasons, I prefer the evidence of Dr. Baird and the first of Dr. Ramsay’s two possible explanations for [N.T.’s] injuries. Both explanations include a determination that [N.T.] suffered an inflicted acceleration/deceleration injury. [Emphasis added.]

[27] The trial judge turned next to assessing the other trial evidence and rejected any evidence that was inconsistent with Dr. Baird’s opinion. She applied the W.(D.) framework only to the appellant’s police statement and only through the lens of Dr. Baird’s opinion that none of the accidental events described by the parents and the appellant caused N.T.’s injuries. As earlier noted, the trial judge seems to have never applied the second prong of W.(D.) to consider whether Dr. Ramsay’s hypothesis that these accidental events could have caused N.T.’s injuries left her with a reasonable doubt as to the appellant’s guilt. She simply considered whether the appellant’s evidence left her with a reasonable doubt about her guilt and concluded that it did not because of her earlier acceptance of Dr. Baird’s opinion: “None of the accidental events described by [the appellant] in her statement to police or in the texts to [N.T.’s mother] can or do explain how [N.T.] came to suffer the acceleration/deceleration injuries.”

[28] The trial judge’s premature preference for Dr. Baird’s opinion is repeated in para. 212 of her reasons where she analyzes the “rest of the evidence” under the third prong of W.(D.) to determine whether the Crown had proven the appellant’s guilt beyond a reasonable doubt. It is clear that she analyzes the evidence in the light of her acceptance of Dr. Baird’s evidence, as she states:

Having preferred the evidence of Dr. Baird and Dr. Ramsay’s first hypothesis, I conclude that [N.T.] suffered an acceleration/deceleration injury sometime between approximately 8 a.m. and 11:30 a.m. on July 20, 2016, while he was in the care of [the appellant]. [Emphasis added.]

[30] By preferring one expert over another, without examining the expert evidence through the W.(D.) framework and in the context of the totality of the evidence, the trial judge fell into legal error. The expert evidence was crucial to the principal issue of the causation of N.T.’s head injury. A new trial is therefore required.

DISPOSITION

[31] For these reasons, I would allow the appeal and order a new trial.

R v Choudhury, 2021 ONCA 560

[August 6, 2021] Possession: Access Does not Mean Control [Reasons by M. Jamal J.A. with David Watt and M.L. Benotto JJ.A. concurring]

AUTHOR’S NOTE: When a case for possession of an illegal item or substance is based on circumstantial evidence, the issue of access to a physical location often takes on outsized importance in the analysis. Here, evidence that merely pointed to access overtook the entire analysis and became evidence of control for the trial judge. This case provides a good outline of the law of possession and a excellent application in a circumstantial case leading to an acquittal on appeal. 

Introduction

[1] The appellant, Forhad Ahmed Choudhury, was charged with 15 counts of offences relating to drug trafficking, drug possession for the purpose of trafficking, and possession of a firearm. The charges arose from events in July 2015: (1) an undercover drug buy for cocaine involving the appellant and an undercover police officer; (2) crack cocaine found in the appellant’s groin area during a strip search upon arrest; and (3) drugs, a loaded gun, ammunition, and cash found in the room of a house that the appellant had recently been seen entering and leaving. The appellant was convicted of 12 of the counts and sentenced to 3½ years in custody, less credit for pre-sentence custody and strict bail conditions, for a net sentence of 2½ years. He now appeals against his convictions and seeks leave to appeal his sentence.

[3] The only disputed issue on appeal involves the convictions for the drug and firearms offences relating to the contraband found in the room of a house in Ottawa, to which the appellant had access (counts 4 to 7 and 9 to 14). For the reasons that follow, I conclude that the trial judge erred in law by conflating the appellant’s access to the room with his constructive possession of the contraband. I would allow the appeal and order a new trial on those counts.

Background

[4] Based on information from a confidential informant, police went to a house in Ottawa on July 3, 2015 to make an undercover drug buy. The appellant came out of the house, spoke to an undercover officer, went behind the house with her, returned, and entered the house without a key. The undercover officer, who had gone behind the house with appellant to allegedly buy the drugs, then gave a small package of 1.5 grams of cocaine to another undercover officer at the scene.

[5] Three days later, the police saw the appellant enter the house using a key.

[6] The next day, the police arrested the appellant at the house as he was leaving in a blue Mercedes. The police seized cash, cellphones, and a keychain of keys from the car’s ignition. The police then executed a search warrant at the house. One of the rooms, Room #4, was locked. The police breached the lock and entered. They found cash, drugs, scales, cell phones, a revolver BB gun, CO2 cartridges, and BB pellets. They also found an unlocked plastic Sentry-brand lockbox containing a loaded handgun and loose ammunition. The room was filthy and contained male clothing.

[7] One officer testified that he found the appellant’s OHIP card in the room on a chair, as well as digital scales and U.S. currency. The officer made no note of the OHIP card and it was not included in the exhibit list. He testified that he took the OHIP card to photocopy it and planned to return it to the appellant, as the usual practice was to return originals of government I.D. to the owner.

[8] Two of the keys on the keychain seized from the appellant’s car operated the lockbox found in Room #4. A woman, who was the sole tenant listed on the house’s lease, was in the house during the search. Police also searched another room, believed to be hers, which contained female clothing, needles, and crack pipes, but was otherwise clean.

[10] The trial judge placed no weight on the OHIP card because it was not included in the exhibit list or mentioned in the officer’s notes. She found that “[r]outine steps” should have been taken to satisfy the court that the OHIP card was found where the police said it was found and that “safeguards … should have been in place” to satisfy the court as to its reliability.

[11] Despite placing no weight on the OHIP card, the trial judge found a “strong connection” between the appellant and Room #4. She found the appellant in constructive possession of the items in the room based on the following evidence:

1. The appellant was seen leaving the house on July 3, 2015 to meet the undercover officer and walking back towards and entering the house after meeting her;

2. On July 6, 2015, the appellant was seen entering the house using a key;

3. On July 7, 2015, the day of his arrest, the appellant was seen leaving the house. He was stopped by police and crack cocaine and cash were seized from him;

4. Crack cocaine was not found anywhere in the house other than Room #4; and

5. A Sentry-brand lockbox was found in Room #4. Two keys from the keychain taken from the ignition of the appellant’s car had “Sentry 009” written on them and locked and unlocked the lockbox.

[12] The trial judge held that the Crown had proven beyond reasonable doubt that the appellant “had access to [the house] and also access to Room #4”. She also ruled that the appellant had knowledge of the drugs and other items in Room #4, and that he knowingly kept them in the room and intended to have them for his use or benefit.

Discussion

[19] The relevant legal principles on constructive possession are not in dispute:

• Constructive possession is established when an accused does not have physical custody of an object but knowingly has it in the actual possession or custody of another person or has it in any place for their own or another’s use or benefit: Criminal Code, s. 4(3)(a); R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17; and R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 47.
• Knowledge and control are essential elements of constructive possession, which is established when the Crown proves beyond a reasonable doubt that the accused: (i) has knowledge of the character of the object said to be possessed; (ii) knowingly puts or keeps the object in a particular place, whether or not the place belongs to or is occupied by the accused; and (iii) intends to have the object in the place for the use or benefit of the accused or another person: Morelli, at paras. 15, 17; Lights, at paras. 44, 47.
• Tenancy or occupancy of a place where an object is found does not create a presumption of possession: Lights, at para. 50; R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at paras. 2-3; and R. v. Bertucci (2002),2002 CanLII 41779 (ON CA), 169 C.C.C. (3d) 453 (Ont. C.A.), at para. 18.
• When the Crown relies largely or wholly on circumstantial evidence to establish constructive possession, a conviction can be sustained only if the accused’s knowledge and control of the impugned objects is the only reasonable inference on the facts. The trier of fact must determine whether any other proposed way of looking at the case as a whole is reasonable enough to raise a doubt about the accused’s guilt, when assessed logically and in light of human experience and common sense: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56; Lights, at para. 39; and R. v. Stennett, 2021 ONCA 258, at paras. 60-61.

[20] The appellant says that the trial judge correctly stated the test for constructive possession but failed to apply it. He says the trial judge only found beyond a reasonable doubt that the appellant had “access” or a “connection” to Room #4, which could not establish constructive possession of the contraband, and that she did not find he had exclusive access to the room. The appellant says the trial judge failed to analyze whether he had any knowledge of, or control over, the contraband. He says the trial judge’s finding of “access” or “connection” to a place do not, on their own, establish the knowledge or control needed for constructive possession.

[23] I do, however, agree with the appellant that the trial judge conflated the appellant’s “access” and “connection” to Room #4 with his constructive possession of the contraband. The trial judge referred to five items of evidence supporting her conclusion that the appellant had access to Room #4, and then concluded, without further discussion or analysis, that he had constructive possession of the contraband:

I find that the Crown has proven, beyond a reasonable doubt, that [the appellant] had access to [the house] and also access to Room #4: the keys on his key chain that opened the lock box in Room #4 provide a direct and undeniable connection between [the appellant] and the interior of that room.

For these reasons, I have concluded that [the appellant] had access to Room #4 and that he:

(a) Had knowledge of the drugs and other items that were kept in Room #4;

(b) Knowingly kept the drugs and other items in that location; and

(c) Intended to have the drugs and other items in Room #4 for his use or benefit. [Emphasis added.]

[24] Later in her reasons, the trial judge again referred to her finding of the appellant’s “access” to Room #4 as the basis for finding him in constructive possession of the gun found in the unlocked lockbox:

I have already found that [the appellant] did have access to Room #4 and that he was in constructive possession and therefore in possession of all of the drugs and items in the room. This finding includes the .22 calibre handgun. [Emphasis added.]

[25] In my view, these passages strongly suggest that the trial judge conflated mere access to the contraband with constructive possession.

[26] The trial judge also failed to explain why the circumstantial evidence she referred to established that the appellant’s knowledge and control of the contraband was the only reasonable inference on the facts:

• The trial judge referred to the appellant being seen entering and leaving the house, but the house also had a female tenant — the only tenant listed on the lease — who was in the house during the search and seizure. Police found needles and crack pipes in what they believed was her room. The trial judge did not explain why, given this evidence, the only reasonable inference was that the appellant had knowledge and control of the contraband.
• Although, as the trial judge noted, no cocaine was found in the house other than in Room #4, needles and crack pipes were found in what looked like the woman’s room.
• The strongest evidence linking the appellant and the contraband were the keys on the keychain taken from the appellant’s car, which opened the lockbox found in Room #4. The trial judge mentioned this evidence, but failed to address its weaknesses. The lockbox was already open when the police searched the room. Although the keys arguably showed that the appellant had access to the lockbox, they did not necessarily establish his knowledge or control of the items in it, because the box was open. Others could have put those items there. The appellant did not control the lockbox and its contents by locking it. Nor was there any direct evidence that the appellant had ever been in Room #4. The police did not test whether any of the keys on the appellant’s keychain opened the door to Room #4.

[27] The trial judge thus failed to address the circumstantial nature of the evidence. Although I accept that the evidence allowed her to infer that the appellant had access to Room #4, she did not explain why the only reasonable inference was that he had knowledge and control of the contraband.

[28] I therefore conclude that the trial judge erred by conflating the appellant’s access to Room #4 with constructive possession of the contraband. I would allow the conviction appeal on counts 4 to 7 and 9 to 14, quash the convictions, and direct a new trial on those counts.

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