The Defence Tooling – May 24, 2025: Excessive Interventions

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Charter s.7 | Charter s.9 | Excessive Intervention | NCRMD

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Posted On 24 May 2025

This week’s top three summaries: R v Walton, 2025 ONCA 368: #excessive intervention, R v Hardestine, 2025 BCSC 889: #ruse stop, R v Serieaux, 2025 ONSC 2356: #NCRMD

R v Walton, 2025 ONCA 368

[May 14, 2025] Excessive Judicial Intervention [Reasons by P. Lauwers J.A. with J. George and J. Copeland JJ.A. concurring]

AUTHOR’S NOTE: This case is a textbook illustration of judicial overreach and reinforces the critical principle that judges must not only be impartial—they must be seen to be impartial. It identifies multiple forms of judicial conduct that can compromise trial fairness, particularly in the eyes of a jury.

🔹 Key Takeaways:

Neutrality and the Appearance of Fairness:
- A trial judge must refrain from taking on an adversarial posture or conveying alignment with the Crown.
- Even subtle expressions—tone, body language, or persistent questioning—can undermine the perceived impartiality of the court.
Interruptions and the Right to Present a Defence:
- Judges must allow the accused to tell their story without excessive interruptions, especially on critical issues of fact or credibility.
- The structure and timing of interventions matter. Repeated interruptions of defence counsel’s examination or cross-examination can infringe on the right to make full answer and defence.
Impact on the Jury:
- In a jury trial, judicial conduct is amplified. Remarks or tones that signal skepticism or disbelief toward the accused risk improperly influencing the jury’s assessment of credibility.
- A judge’s questioning should not invite the jury to draw negative inferences against the accused, particularly before counsel has completed examination-in-chief.

A. OVERVIEW

[1] This appeal poses the following question: when does a trial judge presiding over a criminal jury trial go too far in participating in the questioning of a witness?

[3] In 2012, the Waltons incorporated two corporations, Global Mills Inc. (“Global Mills”) and Donalda Developments Ltd. (“Donalda”), for the purpose of purchasing and developing 1450 and 1500 Don Mills Road in Toronto. They entered into two investment agreements with Dr. Bernstein in which the Waltons and Dr. Bernstein each owned 50% of the shares of both corporations….

[4] In 2013, Dr. Bernstein grew worried about his investments. After raising concerns that the Waltons would not or could not satisfactorily address, Dr. Bernstein sued and got a $66 million judgment against them for civil fraud.

[6] The net proceeds from the new Global Mills mortgage, amounting to $2,661,369.61, were deposited into the account of the Waltons’ private company, Rose and Thistle Group Ltd. (“Rose and Thistle”) on August 1, 2013. This deposit was made alongside the net proceeds of the new Donalda mortgage, which totaled $2,888,250.79. These two large deposits totalled about $5.5 million.

[7] The funds were disbursed out of the Rose and Thistle account in the first two weeks of August 2013. The recipients were:

32 real estate development projects jointly owned by the Waltons and Dr. Bernstein, which received about $3.3 million (including $1,051,800 advanced to Donalda and $231,300 advanced to Global Mills);

 27 other companies, persons, or entities in which only the Waltons had an interest, which received about $2.2 million, and included $460,000 transferred directly into the Waltons’ own personal bank account where it was used almost immediately to pay their income taxes owing to the Canada Revenue Agency, mortgage payments owing on their home, and various debts owing on personal lines of credit.

[8]…. Ms. Walton did not initially reveal that she had obtained additional mortgage funds. While she disclosed the additional financing in an email on September 14, 2013, she did not mention that it had been advanced over a month earlier. Afterwards, she continued to falsely represent that she still had the money in her control, despite having already transferred most of those funds out of the Rose and Thistle account.

[9] At trial, Ms. Walton testified that Dr. Bernstein had given her permission to withdraw equity from the companies, and that in any event she was simply trying to make inter-company loans among the corporations which would be treated as “withdrawal of equity” if not repaid by the year end. She argued that only the $460,000 that was transferred to the Waltons’ personal bank account and spent on their personal debts and personal needs could constitute theft. But Ms. Walton argued that she honestly believed she had a colour of right to transfer the rest of the funds to all the other entities, regardless of whether Dr. Bernstein had any ownership of any such project or company.

[10] The jury convicted Ms. Walton of two counts of theft over $5,000 in relation to both Global Mills and Donalda respectively. Mr. Walton was acquitted of theft charges on the same facts….

B. ISSUES

[14] Ms. Walton raises four issues on appeal:

1. Did the trial judge’s interruptions, interjections, and questioning of Ms. Walton create a reasonable apprehension of bias?

C. ANALYSIS

[16] I would frame the first issue slightly differently: Did the trial judge improperly assume the role of counsel by his interruptions, interjections, and questioning of Ms. Walton?

(1) The Governing Principles

[20] In the context of a jury trial, the judge holds in tension two considerations, outlined by Kelly J.A. in R. v. Torbiak and Campbell, at para. 5:

On the one hand his position is one of great power and prestige which gives his every word an especial significance. The position of established neutrality requires that the trial judge should confine himself as much as possible to his own responsibilities and leave to counsel and members of the jury their respective functions. On the other hand his responsibility for the conduct of the trial may well require him to ask questions which ought to be asked and have not been asked on account of the failure of counsel, and so compel him to interject himself into the examination of witnesses to a degree which he might not otherwise choose.

[22] The trial judge is duty-bound to exercise restraint and remain neutral to promote both the reality and the appearance of fairness.7 However, a trial judge is permitted to intervene where doing so is essential to ensure justice is done in both substance and appearance.8 A trial judge is entitled to and must “manage the trial and control the procedure to ensure that the trial is effective, efficient and fair to both sides”, and to witnesses.

[23] However, trial judges should, consistent with the principle of cautious restraint, confine themselves to their own responsibilities, leaving counsel and the jury to perform their respective functions.

[24] In this light, I point out that examination-in-chief and cross-examination are and must remain the responsibility of counsel; a trial judge should not become an investigator.A trial judge must not cause a reasonable person to believe that he has “placed the authority of his office” on either side, particularly that of the prosecution, and must also be careful not to usurp the role of counsel because the overall impression created may be fatal to the appearance of trial fairness.

[25] Although the trial judge may ask questions that should have been asked by counsel, the trial judge must not usurp counsel’s role. The judge must not “leave his or her position of neutrality as a fact-finder and become the cross-examiner.” 13 When the trial judge does intervene in questioning a witness, “it is important that they use care and not create an impression through the questioning process of having adopted a position on the facts, issues or credibility.

[26] As this court instructed in Chippewas, at para. 239, a trial judge should try to avoid interfering with the organization and flow of the evidence, because judicial intervention might impede counsel in following an organized line of inquiry. This is especially important during examination-in-chief.15 Obviously, the trial judge should never cross-examine a witness. Rather, when the trial judge believes that it is necessary to question a witness, the judge’s questions should be asked after counsel has completed his examination, or at least after counsel has finished a particular line of questioning. An exception would be a fast clarification that does not become a digression.

[27] Stucky and Murray provide useful bookends on permissible and impermissible interventions. In Stucky, at para. 64, this court adopted and summarized the comments of Martin J.A. in Valley, at para. 53:

Martin J.A. set out three situations in which questions put by a trial judge to a witness may be justified, namely: to clear up ambiguities and call a witness to order; to explore some matter which the witnesses’ answers have left vague; or, to put questions which should have been asked by counsel in order to bring out some relevant matter, but which were nonetheless omitted. (Emphasis added by PJM)

[28] The other bookend, in Murray, provides the counterpoint, at para. 94, per Watt J.A.:

The principal types of intervention that attract appellate disapprobation include, but are not limited to,

(i) questioning an accused or witnesses in such a way as to convey an impression that the judge aligns him or herself with the case for the Crown;

(ii) questioning witnesses in such a way as to make it impossible for counsel to present the defence case;

(iii) intervening to such an extent in the testimony of the accused that it prevents the accused from telling his or her story; and

(iv) inviting the jury to disbelieve the accused or other defence witnesses.

(Emphasis added by PJM)

(2) The Principles Applied

[32] Some of the trial judge’s interventions could be justified as clearing up ambiguities, or in exploring a matter in which Ms. Walton’s answers were vague, as permitted in Valley. However, such clarifying questions, unless they permit a fast clarification, should be left until after counsel has finished.

[33] But in this trial, many interventions occurred during Ms. Walton’s examination-in-chief and were not held back by the trial judge until after defence counsel had completed a line of inquiry or had completed his examination-in-chief. The interventions fell into the faults outlined in Murray. That is, the trial judge’s questioning of Ms. Walton made it very difficult, if not impossible, for defence counsel to present the evidence in the orderly fashion that he, no doubt, had planned. In other words, the trial judge intervened to such an extent that it prevented Ms. Walton from telling her story. He left his position of judicial neutrality and became a second cross-examiner. On occasion, the trial judge hounded Ms. Walton in his manner of cross-examination. This could not but have created an impression with the jury that the judge had aligned himself with the Crown.

[35] I will not discuss each of the excerpts but instead will focus on several that illustrate the problems with judicial intervention discussed in the cases mentioned above.

[37] I excerpt two lengthy passages from the transcript. The first, from defence counsel’s examination-in-chief of Ms. Walton, addresses whether Ms. Walton had Dr. Bernstein’s permission to take the mortgage proceeds. Ms. Walton argues the trial judge cross-examined her and directed the flow of information. The second, from the Crown’s cross-examination, addresses Ms. Walton’s decision to transfer the funds into the Waltons’ personal Rose and Thistle account, on which she argues that the trial judge cross-examined her in tandem with the Crown.

(a) Did the trial judge cross-examine Ms. Walton during her examinationin-chief on her understanding with Dr. Bernstein?

[38] In the excerpts that follow, which are continuous unless otherwise noted, Mr. Cohen and Ms. Parise were Ms. Walton’s defence counsel. I insert occasional comments.

MR. COHEN: Q. All right, so did you have any discussions with Dr. Bernstein or did you exchange any documents that indicated what your perception was of the value of Don Mills as of July 31st 2013?

A. I was always providing him with updates on all of our properties and I would sort of give my opinion of what I thought things were worth, so the September 14th 2013 email that I sent him when I advised him about the mortgages that had been placed, I believe I put a valuation in there.

THE COURT: Which email?

A. September 14th 2013.

[39] This was a factual question that would have helped the judge and jury find the document. But then the trial judge made an additional remark that sounds critical.

THE COURT: So that’s over a month after the new mortgages had been put on.

A. Yes.

THE COURT: Is that correct?

A. Yeah, that’s a month and a half. It’s six weeks.

THE COURT: So that’s when you told Dr. Bernstein about your perception of the value of the Don Mills properties.

A. I told him previously. I sort of updated him every month on all 31 projects that were on the go and I’d give ongoing updates at that time and I would often give valuations or I’d describe the work that was being done, but that was when I reported on the mortgages to him and I believe a valuation was included there. I’m flagging.

[40] At this point defence counsel asks for a break but the trial judge wants to pursue his questions:

MR. COHEN: Would this be a good time for a break, Your Honour?

THE COURT: So the September 14th email is when you reported to him about the valuations?

A. No. It was an ongoing reporting but that would have been the last time I suspect that I reported to him about the valuations.

THE COURT: So when were the previous ones then, if that’s the last one?

A. There’s emails that we can show where we reported on the properties and [it] would be contained in those emails, but there’s a number of them, so perhaps it will take some time to go through but it was an ongoing process, Your Honour. Every month I would report to him on what was going on with each property and often in those reports I would opine on what I felt the value was.

THE COURT: So this is the last of a series of emails.

A. Yes, Your Honour.

THE COURT: On that same subject.

A. Yes.

[41] Several pages later in the transcript, still in Ms. Walton’s examination-inchief, this exchange takes place:

Mr. COHEN Q. All right, so can you tell His Honour and the ladies and gentlemen of the jury why you put money into your, into that Schedule C property?

A. Yes. So when Dr. Bernstein told us on August 2nd that he did not need any more money once we paid him the 840,000, Ron and I withdrew part of our equity from the Don Mills properties to cover our personal obligations as opposed to providing that money to him. So he was going to withdraw it. When he didn’t need it, we withdrew it.

THE COURT: You’re withdrawing equity from what project?

The two Don Mills projects. So of the six million that was arranged, just under four went to jointly owned properties that we had with Dr. Bernstein, and I withdrew on behalf of us 1.87 million which was an equity withdrawal from the Don Mills properties, of the Walton, part of the Walton equity.

THE COURT: 1.87 million is all these total payments to the Schedule C companies. Is that what you’re saying?

A. Yes. It’s the 2.2 minus that 353,5.

THE COURT: Which you say is about 1.9 approximately?

A. Yeah, it’s 1.87 million, thereabouts.

THE COURT: And you felt you were entitled to withdraw that money as equity from the Don Mills projects because Dr. Bernstein had told you he didn’t need any cash right now?

A. And because we had a precedent of withdrawing equity from the joint projects when money was available. That was a practice of ours. So you may remember….

[42] This is at the heart of Ms. Walton’s defence, and counsel now feels compelled to try to regain control:

MR. COHEN: Q. Does this have something to do with Wynford project?

A. Yes.

Q. Perhaps you could restate that?

A. Sure. You may remember that he was receiving equity repayments every month. He would get three equity repayments you may remember. One from 1500 Don Mills, one from our Highway 7 property, and one from Spadina – Spadina – it might have been Atlantic. Anyways there were three regular monthly equity withdrawals that we provided to him, and on the Wynford property, that property progressed to the point where there were a number of sales of condominium units in that property and what we asked Dr. Bernstein, ‘cause he had the first mortgage on the property, is whether he wanted to use the proceeds from sale to pay off his debt, or whether he wanted to split the equity between us, and he opted to split the equity between us ‘cause he wanted to continue to receive the interest payments, and so there’s three different transactions on the Wynford matter where the equity is paid out to us and to him.

[43] However, after this response the trial judge moves into a full crossexamination, asking Ms. Walton for the paper trail to establish her story:

THE COURT: So when you’re withdrawing what you say is 1.87 million in equity from the two Don Mills projects, with all these payments to yours and your husband’s companies, did you record that or communicate that in some way that that’s what you were doing?

A. Yes. So everything, Mr. Merryweather I remember gave some testimony, that everything we did was transparent. Meaning, we banked with Desjardin. They had all 85 of our companies. All the transactions were easy to follow as to where the money had gone, and all of those respective companies showed a loan back to the various entities, so it would be recorded on the books that we had withdrawn a certain amount of money from each of these companies. It would be all recorded on the books. There was never any….

THE COURT: You’re talking just about the banking records.

A. The banking records, the transactions, the….

[44] The trial judge wants more by way of substantiating evidence, which is the province of counsel in cross-examination, not a judge:

THE COURT: I guess what I’m asking about is some email or memorandum or communication with the company, with the Don Mills company and its owners that that’s what you were doing.

A. Yes, there’s – all of the loans show that the Don Mills properties provided this money, and so other than the million four the Don Mills properties needed themselves, the remainder of the money is due back to the Don Mills properties. Yes, Your Honour.

THE COURT: So where is that document that records what you’re doing here as being the taking of equity out of the Don Mills project? Where do I find that document that records in some kind of a transparent way that that’s what you’re doing?

A. So the financial statements for the Donalda and Global Mills properties show that.

[45] The trial judge voices some scepticism:

THE COURT: And where are those financial statements?

A. Mr. Shonfeld has those ‘cause he took over all the books from us, and….

THE COURT: You don’t have the financial statements that you say record your taking of equity?

A. No, because the receivership took them…

[46] The trial judge again voices his scepticism and asks for proof, which is often an important element of cross-examination. Ms. Walton’s co-counsel with . Mr. Cohen, Ms. Parise, steps in to try to make sure the correct information is on the record:

THE COURT: Are these documents to be produced in due course or do we have them?

MS. PARISE: Your Honour, the Quickbooks records are only accessible on Quickbooks unless they are extracted. We don’t have it with us, but we can extract them. We do have them in our possession, just not here.

[47] I observe that the trial judge’s questions occupy several pages of transcript during Ms. Walton’s examination-in-chief. In my view, whatever defence counsel’s plan for the orderly development of Ms. Walton’s evidence might have been, the trial judge’s relentless cross-examination doubtless left those plans in tatters.

(b) Did the trial judge continue to cross-examine Ms. Walton in tandem with the Crown?

[48] In this excerpt, Ms. Walton is being cross-examined by the Crown, Mr. Power, about the transfer of the proceeds of the mortgage that Dr. Bernstein did not authorize into the Rose and Thistle account.

MR. POWER: Q. So you gave your lawyer instructions to deposit it into Rose and Thistle?

A. I did.

Q. Why didn’t you put it into the Donalda account?

A. We used Rose and Thistle for all of our payments. I didn’t, I didn’t really think it mattered.

A. The TREZ Capital one, but the TREZ Capital one is also deposited into Rose and Thistle.

Q. Yes, and I’m saying to you that you made an extra effort with the Donalda mortgage to make sure that it did not go into the Donalda account.

A. You’re – no, I disagree with that assertion.

[49] The trial judge then immediately stepped in to challenge Ms. Walton’s answer:

THE COURT: But the purpose for adding that amendment was because you knew you were going to direct the money into R and T, into Rose and Thistle.

A. Yes.

THE COURT: That’s where the money was needed?

A. Well, that – yeah, that was the account out of which the transfers would be made, Your Honour. Yes.

MR. POWER: Q. To your knowledge, and the mortgagee here is Windsor Capital.

A. Yes. Q. To your knowledge did they know that the mortgage was going to be deposited into the bank account of a different company?

A. I don’t know if they knew. It would have been immaterial to them.

Q. You signed this on July 31st.

A. I did.

[50] It can be seen that the trial judge continued to cross-examine Ms. Walton during the Crown’s cross-examination.

[52] In my view, the trial judge made each of the four errors listed by Watt J.A. in Murray: he questioned Ms. Walton in such a way as to convey an impression that he aligned himself with the case for the Crown; he questioned Ms. Walton in such a way as to make it impossible for counsel to present the defence case; he intervened to such an extent in Ms. Walton’s examination-in-chief that it prevented her from telling her story in an orderly way through the questioning of her own counsel; and the trial judge’s tone from time to time effectively invited the jury to disbelieve Ms. Walton. (Emphasis added by PJM)

[54] The Crown points out that the defence failed to object to the trial judge’s interventions. Objections should be made as soon as possible.While the defence’s failure to object is a factor, it is not determinative, and should not be in this case because the interventions were so extensive.

D. DISPOSITION

[56] In Brouillard, Lamer J. noted, at para. 12, that when a trial judge “step[s] down from his judge’s bench and assume[s] the role of counsel… to the detriment of the accused, it is important that a new trial be ordered, even when the verdict of guilty is not unreasonable having regard to the evidence, and the judge has not erred with respect to the law applicable to the case and has not incorrectly assessed the facts.” I would add that this must be even more true in a jury trial.

[57] For these reasons, the appeal is allowed, the convictions are set aside, and a new trial is ordered.

R v Hardestine, 2025 BCSC 889

[May 12, 2025] Charter s.9: Ruse Stop, Charter s.7: Excessive Force [Justice Gottardi]

AUTHOR’S NOTE: This case is a robust articulation of the limits of police power in the context of vehicle stops and use of force. It provides both legal tools and practical guidance for defence counsel seeking to challenge stops as Charter s.9 violations (arbitrary detention) and potentially s.7 violations (life, liberty, and security of the person) where force is involved.

🔹 Key Takeaways:

1. Section 9 – Arbitrary Detention:

Police may conduct random traffic stops for highway safety and regulatory purposes (R v Ladouceur).
However, once the true purpose of the stop shifts to general criminal investigation, the legal justification must also shift—otherwise it becomes arbitrary.
The court here uncovered collusion between officers who claimed the stop was for a highway traffic violation but were clearly aiming to initiate a criminal investigation.

Legal Leverage for Defence Counsel:

Use cross-examination to expose inconsistencies between officers’ accounts.
Look for evidence of prior knowledge, surveillance, or coordinated planning that undermines the claim that the stop was for traffic enforcement.
Emphasize that if officers are not candid about their motives, good faith justifications fall away under Grant.

2. Section 7 – Excessive Use of Force:

The decision offers a compelling discussion of when force crosses into Charter-protected liberty interests.
It reinforces that force must be proportionate, necessary, and reasonable in the circumstances.
Where force is used during an unlawful or pretextual detention, its lawfulness collapses with the detention itself.

I. Introduction

[1] Mr. Hardenstine is charged with several offences relating to the illegal possession of two firearms. He is also charged with offences related to his alleged assault and obstruction of a police officer during the course of his roadside arrest.

[2] Police received a tip in the late evening hours of April 4, 2024, from a person later determined to be Aaron Brown. Mr. Brown indicated that he had arranged to meet with Mr. Hardenstine in the early morning hours of April 5, 2024 for the purpose of purchasing two firearms. Mr. Brown further indicated that Mr. Hardenstine’s expressed intention was to use the proceeds from the sale of the firearms to flee the jurisdiction and travel to the United States.

[3] The location of the proposed sale changed several times over the course of the evening. Eventually, the police were told that it was to take place at a gas station in Okanagan Falls, B.C. (“OK Falls”). Police set up several observation posts at various points around the town. Approximately five minutes after they had set up, a grey Chevy Metro pulled in behind the gas station. The vehicle slowed and momentarily came to a stop before leaving the gas station and continuing on its way. Nothing could be observed about the driver or the vehicle’s occupants at that time.

[4] One of the officers followed the vehicle, and after discussions with the lead investigator, initiated a traffic stop of the vehicle. The other four officers attended the scene of the vehicle stop shortly after. The lead investigator, Constable Ballarin, was familiar with Mr. Hardenstine and recognized him as the person in the passenger seat of the vehicle.

[5] Two of the officers drew their firearms and Cst. Ballarin opened the passenger side door. While attempting to arrest Mr. Hardenstine in relation to several outstanding warrants, a struggle ensued. Over the course of the next three minutes, Mr. Hardenstine was punched and kneed by the officers numerous times. As the struggle continued, one of the officers deployed his taser. Mr. Hardenstine was tasered ten times before he was brought under control by the officers.

[7] Mr. Hardenstine seeks to stay his criminal proceedings as an abuse of process or, alternatively, to have the firearms excluded from evidence. Further, he submits that the police violated his s. 7 and s. 12 rights under the Canadian Charter of Rights and Freedoms by using excessive force and tasering him during his arrest. He also submits that he was arbitrarily detained and unlawfully searched in violation of his ss. 9 and 8 Charter rights, respectively. Finally, he submits that his s. 10(a) and 10(b) rights – to know the reason for his arrest and speak to a lawyer without delay – were violated following his arrest.

IV. Analysis

Credibility and Reliability

[98] I am mindful of the principles set out by this Court in Bradshaw v. Stenner, 2010 BCSC 1398 relating to assessments of credibility and reliability. While a civil case, the principles in Bradshaw have been consistently relied upon in this province in the criminal context. Of note are the following comments by Justice Dillon:

[186] Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), 1919 CanLII 11 (SCC), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and crossexamination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont.H.C.); Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) [Farnya]; R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Farnya at para. 356).

[Emphasis added].

[100] The position of the defence is that based on the quantity and quality of the inconsistencies between the various officers, this Court should find some level of dishonesty in their evidence. The defence listed numerous inconsistencies in their written submissions that they say support their position that the officers were being less than truthful:

1. That Mr. Hardenstine “sprung” out of the vehicle:

2. That Mr. Hardenstine took a “swing” or attempted to punch Cst. Ballarin;

3. That Mr. Hardenstine attacked and attempted to “football tackle” Cst. Ballarin;

4. That Cst. Ballarin lifted up the brim of Mr. Hardenstine’s hat to better identify him;

5. That Mr. Hardenstine grabbed Cst. Poulton by his vest and lifted him up like a “baby” and off the ground; and

6. That Mr. Hardenstine was crawling toward the handgun lying on the ground beside the Chevy

Analysis

[101] In relation to the very first seconds of the interaction between police and Mr. Hardenstine, a consistent theme emerged from the testimony of all four officers. First, the officers described Mr. Hardenstine’s emergence from the vehicle in strikingly similar terms. Cst. Ballarin stated that Mr. Hardenstine “popped” out of the vehicle and “took a swing at him when he came out of the car”. Cst. Poulton testified that Mr. Hardenstine “sprung out of the vehicle” and immediately lunged to attack Cst. Ballarin. Cst. Poulton testified that Mr. Hardenstine attempted a “football tackle” when he “went straight for Ballarin”.

[102] Cst. Harrison was the third officer to testify. He stated that Mr. Hardenstine “sprung up” when he exited the vehicle. When asked to elaborate further, he stated that Mr. Hardenstine stood up “as fast as you can from a seated position”.

[103] Cst. Turundzev testified the following day. When asked about Mr. Hardenstine’s emergence from the vehicle he testified that the suspect “sprung”up, “standing fast from a seated position”.

[104] After reviewing the dash cam footage from the First Video, I find that Mr. Hardenstine did not spring or jump out of the vehicle on his own accord. Viewed objectively, the First Video depicts Mr. Hardenstine reacting in apparent surprise or alarm to see two firearms pointed directly at his face. While Mr. Hardenstine does turn toward the officers, I find that it was Cst. Ballarin who first reached into the vehicle and put his hand on Mr. Hardenstine. In cross-examination, after the First Video had been played for them, several of the officers agreed with the suggestion that Mr. Hardenstine was effectively pulled from the vehicle. Having watched the First Video, I find this to be the most reasonable description of what took place.

[105] Secondly, there was evidence from all four officers regarding a punch directed at Cst. Ballarin. Cst. Ballarin testified that he was “punched in the face while standing”. Reviewing the dash cam footage, this did not happen. I do not accept Cst. Ballarin’s evidence on this point.

[113] Cst. Harrison was asked if he had reviewed the notes or statements of his fellow officers before testifying. He stated that he had not done so. At the conclusionof Cst. Turundzev’s testimony, he was asked the same question. He stated that he had not reviewed their notes, but had in fact reviewed their narrative statements. He indicated that the narrative statements were stored on the “ledger file” and that the statements were not locked. Cst. Turundzev explained that anyone with access to the ledger file could review the statements.

[114] There are cases such as R. v. Jayawardena, 79 W.C.B. (2d) 79 (Ont. S.C.) at para. 9, 2008 CanLII 43584, and R. v. C.O.L., 2010 ONSC 2755 at paras. 123–140, that stand for the proposition that where statements of different declarants contain multiple, almost-matching, erroneous observations, a strong inference should arise that the statements were the product of collusion or collaboration. While discussing an unrelated standard of threshold admissibility, the Supreme Court of Canada in R v. U.(F.J.), [1995] 3 S.C.R. 764 at para. 40, 1995 CanLII 74 (SCC) described five explanations for a situation in which several witnesses give similar testimony

…When two statements contain similar assertions of fact, one of the following must be true:

1. The similarity is purely coincidental.

2. The similarity is the result of collusion between the two declarants, before one or both of their statements were made.

3. The second declarant knew of the contents of the first statement, and based his or her statement in whole or in part on this knowledge.

4. The similarity is due to the influence of third parties, such as an interrogator, who affected the contents of one or both of the statements.

5. The similarity occurred because the two declarants were both referring to an actual event – that is, they were both telling the truth.

(Emphasis added by PJM)

[115] In this case, there are very similar accounts of Mr. Hardenstine being an immediately aggressive combatant who instantly sprung out of the car and attacked Cst. Ballarin. That did not happen. There are similar accounts, some described and even physically demonstrated in great detail of Mr. Hardenstine immediately attempting to punch Cst. Ballarin. That did not happen. There is also evidence from at least one of the officers, Cst. Turundzev, that he read the narratives of his fellow officers before testifying. Cst. Turundzev also indicated that the narratives were not locked in the police file system and were available to be reviewed. Those questions were not put to Cst. Ballarin or Cst. Poulton, although both were confronted with the video.

[117] Finally, to their credit, in terms of describing their individual uses of force, I find that the officers were exceedingly frank. Cst. Poulton testified that he punched Mr. Hardenstine so hard and so many times that he sprained and dislocated several knuckles. Cst. Harrison stated that he administered so many knee strikes to Mr. Hardenstine that he grew tired and needed to switch legs. This is not the testimony of officers seeking to minimize their actions.

[118] At the end of the day, I accept the basic description of the incident in so far as Mr. Hardenstine was combative and non-compliant with police. I accept that he engaged in a struggle with all four and later all five officers on scene. I accept that these officers were scared for their safety and struggled to bring Mr. Hardenstine under control.

[119] However, I do have serious concerns about the reliability and credibility of these officers when it comes to their descriptions of key events, such as how the fight started and the nature and extent of Mr. Hardenstine’s resistance. The officers exaggerated some details about the manner in which Mr. Hardenstine got out of the car. They claimed he attacked Cst. Ballarin with a windmill punch that never took place. Can these errors be chalked up to a fast-moving and stressful event? I do not believe so. At best, some of these officers’ memories were inadvertently tainted by reviewing each others’ narratives. At worst, as the defence argues, the officers collaborated to tailor their evidence on certain key portions of the narrative. I do not find collusion in this case; I do not find that the evidence rises to that level. I am left however, with significant concerns about the reliability and credibility of all four of the primary officers involved in the physical takedown on Mr. Hardenstine.

Issue #1: Was the stop of Mr. Hardenstine’s vehicle arbitrary?

What was the nature of the traffic stop?

Law

[122] Although no grounds are required to conduct a random stop under s. 73(1), the stop must be related to traffic safety and regulation: R. v. Strilec, 2010 BCCA 198 at para. 29.

[124] The most straightforward example of a valid traffic stop is one where the police officer initiates the stop based on an observed traffic infraction or violation of the MVA. This type of stop is clearly authorized by the MVA and is not arbitrary.

[125] Traffic stops become less straight-forward when they are random. Sometimes referred to as “spot checks” or safety checks, these types of random stops are inherently arbitrary: R. v. Nolet, 2010 SCC 24 at para. 22. However, the infringement of the individual’s Charter rights in these circumstances is justified as a reasonable limit under s. 1 of the Charter, “so long as the actions of the police fit within the pressing and substantial objective of promoting traffic safety”: Woody at para. 34. Therefore, a traffic stop that is initiated to check matters such as sobriety or licensing is justified under s. 1: R. v. Phengchanh, 2011 BCSC 484 at para. 24. Further, sobriety or safety stop checks do not require “objective evidence that a person has already committed a traffic violation”; the power is based on the pressing and substantial objective of ensuring safety on the roads and reducing dangers, including dangerous or impaired driving: R. v. Makortoff, 2023 BCSC 2524 at para. 67.

Common Law Authority for Traffic Stops

[126] A traffic stop may also be valid if it relates to a criminal investigation: R. v. Abdullahi, 2020 BCSC 1822 at para. 33. In Woody, Justice Riley outlined the circumstances in which a traffic stop initiated for the purpose of criminal investigation may be justified:

[35] If the officer’s basis for stopping the vehicle does not relate to enforcement of traffic or vehicle safety laws, but rather relates to a criminal investigation, then the officer must have some independent authority for effecting a “detention” of the driver or other occupants of the vehicle. The officer may have reasonable suspicion to justify an investigative detention in respect of a crime as discussed in R. v. Clayton, 2007 SCC 32, or the officer may have reasonable grounds to justify an arrest for an offence as discussed in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241. In either case, it makes little difference whether the police are dealing with a suspect on foot or in a vehicle. Where the police have reasonable suspicion to support an investigative detention, or reasonable grounds to support an arrest, the interference with the suspect’s liberty is authorized and not arbitrary, whether the suspect is on foot or in a car: R. v. Liang, 2007 YKTC 18 at para. 58. However, where the police have no such reasonable suspicion or reasonable grounds, they cannot simply stop a vehicle and detain the driver or occupants for some general inquisition into possible criminal wrongdoing.

[Emphasis added.]

[128] Police officers may have dual purposes when initiating a traffic stop. Where a traffic stop is initiated after a police officer observes an infraction, the officer “has authority to stop the vehicle in connection with the traffic infraction, and the detention is not rendered arbitrary simply because the officer suspects that the driver or occupants may be involved in unrelated criminal activity”: Woody at para. 43. The fact that an officer may have other reasons for a stop, for example to identify the driver, does not transform a lawful stop into an unlawful one: R. v. Kaddoura, 2009 BCCA 113 at para. 12.

[130] The presence of a mixed motive or dual-purpose for the stop becomes more problematic where the stop is not based on an observed traffic violation, but rather the stop is purported to be a traffic or vehicle safety stop, such as a sobriety check. In these circumstances, the Court must determine first whether the stop was pursuant to an authorized regulatory purpose. If the Court determines that the stop was a pretext or ruse, used only as a means of furthering some other criminal investigation, the stop constitutes an arbitrary detention: Phengchanh at para. 27; R. v. Johnson, 2009 ONCA 668 at para. 27. (Emphasis added by PJM)

[131] Justice Jackson succinctly summarized the appropriate approach in R. v. Speck, 2022 BCSC 486:

[51] Thus the focus of the inquiry under s. 9 of the Charter is on determining the basis for the stop: Woody at para. 33. In doing so, the reality that sometimes police officers have a mix of reasons, purposes, objectives, or motivations for stopping a motor vehicle, must be acknowledged. In the circumstances of a traffic stop (where an officer observes an infraction), they have an independent basis for stopping the motor vehicle, and the fact that they may have additional concerns or interests does not negate the authority for the stop: Woody at para. 43; Nolet at para. 37. In such a traffic stop for an infraction under the MVA, the lawfulness of their stop of a motor vehicle will only be negated where the traffic stop was a ruse or a mere pretext for a general investigation purpose: Woody at para. 43, R. v. Madill, 2005 BCSC 1564 at para. 26; Young at para. 35; R v. Huntley, 2021 BCSC 149 at para. 27.

[Emphasis added.]

[133] A review of the jurisprudence provides some guidance to judges tasked with determining the bona fides of an officer’s claim that the purpose of the stop was to randomly explore road safety issues:

 What was the officer’s duties at the time of the stop? Did the duties include enforcing road safety legislation?: R. v. Peel, 2003 NSPC 66 at para 8; R. v. Mitchell, 2019 ONSC 2613 at para. 73.

 Was the officer tasked with investigating particular criminal activity at the time of the stop?: D.M. Garg and A. Kapoor, Detention, Arrest, and the Right to Counsel, (Toronto: Emond, 2025) at p. 74.

 Had the officer been stopping other vehicles for random checks during their shift?: R. v. Hufsky, [1988] 1 S.C.R. 621 at p. 627; 1988 CanLII 72 (SCC).

 Were the officer’s actions after stopping the vehicle consistent with their stated purpose for the stop? Mitchell at para. 80. For example, if the stated purpose for the stop was a sobriety check did the officer then take steps consistent with that purpose?: R. v. Sitladeen, 2021 ONCA 303 at paras. 33, 37.

(Emphasis added by PJM)

Analysis

[138] The traffic stop in the case at bar was not initiated on account of observing a traffic violation. Nor is this a case where there was a traffic roadblock set up to check sobriety of all vehicles passing through a particular stretch of highway. On the contrary, the impugned traffic stop is either a dual-purpose stop, or a stop in which safety and sobriety concerns were invoked as a mere ruse or pretext to investigate whether Mr. Hardenstine was in the vehicle. Regardless of the outcome, the Court is tasked with assessing the circumstances surrounding the traffic stop to determine the true purpose of the stop.

[143] Further, other than the time of day and its location in OK Falls, nothing about the Chevy gave rise to safety or sobriety concerns. Cst. Poulton testified that it was not speeding, nor were there any concerns relating to dangerous driving. On crossexamination, Cst. Poulton agreed that the driver and passenger could have just be going to their homes and that there are residential homes in that area.

[145] The facts in Lauriente are of assistance in the present case. Like in Lauriente,it was not Cst. Poulton’s decision to initiate the traffic stop. Rather, Cst. Ballarin advised Cst. Poulton to conduct the traffic stop, despite not being present at the time to observe the vehicle. The fact that it was Cst. Ballarin that advised him to stop the vehicle in advance of the stop, further supports the finding that Cst. Poulton himself did not actually observe anything that substantiated a safety or sobriety check. I am further bolstered in this belief by Cst. Harrison’s frank testimony that despite not being able to make any observations about the driver or any other occupants, “we were going to try and conduct a traffic stop […] to confirm and see if Mr. Hardenstine was in the vehicle”

[146] Further, while the record does not reveal exactly what Cst. Poulton said when he asked for Ms. Olafson’s license and registration, there is no evidence that he made inquiries as to her sobriety, or any inquiries that would help him assess the apparent safety concerns he had. Indeed, the sole focus of his radio broadcasts after stopping the vehicle was to communicate his brief observations about the passenger and his appearance.

[148] Cst. Poulton similarly testified that he was aware that he could not pull the car over for the purposes of identifying the occupants inside the car. However, he did not observe any traffic violations, or any dangerous or erratic driving that, though perhaps falling short of an actual violation, would nonetheless justify a safety and sobriety check. Cst. Poulton was not on patrol or conducting random traffic stops. His sole purpose for being in OK Falls was to investigate the Aaron Brown tip. Considering all of this evidence in context, I find that Cst. Harrison’s evidence that the purpose of the traffic stop was to confirm the identity and presence of Mr. Hardenstine was truthful and most accurately describes the pre-planned purpose of the stop. As such, I find the circumstances in the case at bar to be more in line with those in Lauriente: see also R. v. Huete, 2018 BCSC 637. (Emphasis added by PJM)

[149] Having regard to all of the evidence, the traffic stop was not conducted to enforce a traffic or vehicle safety law. Not only was there no observance of a traffic infraction or violation, but I do not accept that the bases which Cst. Poulton cited for substantiating the stop were bona fide, when considered in light of the surrounding circumstances. To be clear, I do not accept Cst. Poulton’s evidence that the purpose of the stop was related to road safety. I agree with Mr. Hardenstine’s submission that the stop was a mere pretext to further investigate the tip and to determine whether Mr. Hardenstine was in the vehicle. (Emphasis added by PJM)

[151] Like inHarrison, I find that Cst. Poulton’s determination to confirm the presence of their target in the vehicle “blinded him to the constitutional requirements of reasonable grounds”: at para. 24. While the violations may not have been “deliberate” in the sense of Cst. Poulton setting out to breach the Charter, they were reckless and showed insufficient regard for Charter rights or a completely unacceptable understanding of the purpose of the random stopping powers under the MVA…

[152] I conclude this was an arbitrary detention and the rights of Mr. Hardenstine pursuant to s. 9 of the Charter were infringed. The infringement cannot be saved by s. 1 of the Charter. As noted in a number of cases, the police cannot stop a person driving a motor vehicle for no reason. While each case depends on its own facts, the inquiry must begin with the determination of whether the detention was justified in the totality of the circumstances: Huete at para. 67, citing R. v. MacGregor, 2017 ONCJ 253 at para. 12.

Was Mr. Hardenstine a mere bystander during the traffic stop?

Law

[156] In circumstances where the passenger of a vehicle subject to a stop argues that they were arbitrarily detained, the passenger must show that their liberty was deprived: Suberu at para. 28; Mooiman at para. 23.

Analysis

[164] My findings regarding the nature of the police stop are highly relevant to this second issue. In essence, the Crown is making a further alternative argument that, even if the traffic stop was a ruse and therefore arbitrary, the stop was still not a breach of Mr. Hardenstine’s rights because, as a passenger, he was not actually detained. However, as I have found that the traffic stop was a pretense to further investigating the tip they received from Mr. Brown, the cases relied upon by the Crown are distinguishable.

[166]…The officers here were not conducting a routine traffic patrol or stopping Mr. Hardenstine for a traffic violation. Rather, Mr. Hardenstine was always the subject and object of the stop; the stop was initiated as a means of confirming whether or not he was the passenger in the vehicle. Without Mr. Hardenstine, the vehicle would not have been stopped. He was always much more than a bystander.

[171] Further, I have no trouble finding as a fact, from all the surrounding circumstances, that Mr. Hardenstine would not have been free to exit the vehicle and leave the scene. I find that Cst. Poulton, whose sole focus after the stop was to report back observations made about the male passenger, would have prevented Mr. Hardenstine from leaving the scene of the traffic stop. I find that Mr. Hardenstine was detained and thus has standing to argue a s. 9 violation in this voir dire.

Was the stop a valid investigative detention for trafficking firearms?

[172] In relation to the Crown’s alternative argument that the police had reasonable grounds to detain Mr. Hardenstine in relation to the tip and their investigation into a possible sale of firearms, I find that it fails on both the subjective and objective prongs of the inquiry.

[175] The primary problem for the Crown in relation to this argument is that Cst. Poulton, subjectively, did not believe that he had sufficient grounds to stop the vehicle based on the information that they had at the time. In his direct evidence, Cst. Poulton testified that he knew he could not pull the vehicle over simply for the purpose of identifying whether Mr. Hardenstine was in the vehicle. Further, we know that the stated reason for his decision to stop the vehicle was a traffic stop for road safety. So, again, subjectively, we know that in Cst. Poulton’s mind he is not exercising his common law power to detain to further investigate a particular crime: Mann at paras. 34, 45; R. v. Le, 2019 SCC 34 at para. 131. Without subjective grounds, the stop cannot be lawful even if I were to find that objectively there were sufficient grounds to stop the vehicle.

[176] Even if Cst. Poulton had the subjective grounds to detain, however, I do not find that the objective grounds were sufficient either. The first area of the concern is what weight could be given to the “tip” that was provided to police. At the time the officers deployed to OK Falls, Cst. Ballarin had the following information:

 The tip came from an unknown individual, who initially used a false name to identify himself to police;

 The tipster changed the location of the alleged sale approximately ten times. Further, it is unclear from the evidentiary record whether the police had attended at another location when the so-called buyer failed to show up (there is some reference to this in Cst. Barrett’s evidence);

 Cst. Ballarin formed the belief that the tipster “was lying” initially;

 Cst. Ballarin had to have multiple conversations with the tipster to get “correct info”;

 Cst. Ballarin was unable to verify any of the information provided to him by the tipster;

 The tipster displayed a strong animus toward Mr. Hardenstine, telling the police on several occasions to “go get him” and “I’m giving him to you”;

 No precise time was given in terms of the proposed sale;

 No make or model of the vehicle was given; and

 No information about how many people would be in the car was provided.

[179] I note the statements made over the police radio, in real time, as the stop was in progress:

 At 434, Cst. Ballarin says, “We don’t know what he’s driving. This car pulled in behind the gas station”

 At 439, Cst. Ballarin asks “is he at the tickleberrys?”

 Cst. Ballarin says, “We pulled o

[180] I take from these comments that Cst. Ballarin here is (1) confirming that the real reason they pulled the vehicle over was because it had momentarily pulled in behind the gas station; and (2) at that time they actually thought they had the wrong vehicle.

[181] In the final analysis, while it may be close, I do not find that there were sufficient objective grounds to stop the Chevy given the limited information that they had, being namely an ambiguous location, an ambiguous time and a tipster whose reliability was unknown.

Issue #2: Did the police conduct an unlawful search of the vehicle before or after Mr. Hardenstine’s arrest?

[184] As explained above, Mr. Hardenstine was not lawfully detained. As it was the arbitrary detention that allowed the police to collect further information about the occupants of the vehicle and to visually confirm the identity of Mr. Hardenstine, his subsequent arrest on the outstanding warrants was also tainted as a consequential breach flowing from the initial s. 9 violation…

[193] The primary and most obvious difference is that in Gill, the officers were acting lawfully when they went to execute the fingerprint impression warrant. In this case, as I have already found they were not exercising a lawful police power due to the fact that the initial stop was arbitrary. The police would not have been in a position to make these observations of the firearms in this case but for their illegal detention of Mr. Hardenstine. As such, I cannot accede to the Crown’s arguments in this regard.

Issue #4: Did the police use excessive force during Mr. Hardenstine’s arrest?

[199] The defence is entitled to bring an application under both s. 7 and s. 12. I note that there is some commentary in the jurisprudence regarding whether s. 12 is the appropriate Charter right to invoke in these circumstances: R. v. Douglas, 2020 SKQB 57 at paras. 16–17; R. v. Thomas, 2024 SKKB 189 at para. 14. In my review of the authorities, s. 7 is clearly engaged where police utilize force in an arrest and is most often the Charter right through which the reasonableness of the police conduct is assessed. While I do not foreclose the possibility, and in fact the reality, that s. 12 may be engaged in cases involving excessive force, in the case before me, I am of the view that s. 7 is the more appropriate inquiry into the lawfulness of the police conduct.

Law

[200] The degree of force that an officer uses to complete an arrest, or to prevent a person from escaping their custody, is constrained by the principles of “proportionality, necessity and reasonableness”: R. v. Nasogaluak, 2010 SCC 6 at para. 32. The mere fact that an officer might be duty-bound to make an arrest is not determinative of their ability to use a particular level of force.

[201] The defence can bring a Charter application under s. 7 to establish that the police used excessive force when arresting the accused. Use of excessive force prima facie breaches s. 7 because it substantially interferes with an accused’s physical or psychological integrity: Nasogaluak at para. 38; R. v. Jarrett, 2021 ONCA 758 at para. 61. The defence bears the burden of establishing a breach by demonstrating there was force used in effecting the arrest. The burden then flips to the Crown if it seeks to justify the level of force under s. 25 of the Code. Remedies for excessive force can include a stay of proceedings or a sentence reduction under s. 24(1), or the exclusion of evidence under s. 24(2).

[202] Section 25 of the Code codifies the use of force principles from the common law. Under s. 25(1), a peace officer is justified in “using as much force as is necessary” if they act on “reasonable grounds”. The principles that apply to the regular use of force under s. 25(1) also apply to the use of elevated force, with some additional considerations. “Elevated force” is force that is intended or likely to cause death or grievous bodily harm. “Grievous bodily harm” means serious hurt, pain, or injury: Degen v. British Columbia (Public Safety), 2023 BCSC 508 at para. 439. While it is not limited to harm that is permanent or life-threatening, it must surpass simple “bodily harm” which is defined in s. 2 as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”.

[203] Section 25(3) of the Code sets out that the use of elevated force is prohibited unless, subject to s. 25(4), the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous harm.

[204] Section 25(4) sets out further conditions for the use of elevated force by a police officer in conducting an arrest. They are as follows:

(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if

(a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;

(b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;

(c) the person to be arrested takes flight to avoid arrest;

(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and

(e) the flight cannot be prevented by reasonable means in a less violent manner.

[205] This case involves not only physical force in the form of punches and knee strikes, but also the use of a taser. The use of a taser, which can be deadly, qualifies as elevated force. The use of this type of force clearly engages an individual’s security of person, and if unlawfully used, is contrary to principles of fundamental justice. The use of force of this nature must be justified by law; s. 25(3) and the further requirements of s. 25(4) of the Code are engaged, and Crown must establish that these conditions are met.

[206] Reviewing a police officer’s use of force and assessing whether that force was excessive requires the Court to consider all the circumstances. This includes considering the officers’ conduct in light of what a reasonable officer would have done and taking into account the information the officer had, any urgency or risk involved in the arrest, and the knowledge, training, and experience of the officer: R. v. McAlpine, 2023 ONSC 2462 at para. 52. This is a subjective-objective test. The officer’s subjective belief must be objectively reasonable: Nasogaluak at para. 34; R. v. Dube, 2024 ONCJ 105 at para. 51.

[208] In their recent and useful text, Detention, Arrest and the Right to Counsel, the authors have compiled a useful list of factors that courts may use to determine the reasonableness of an officer’s use of force, including

 whether the arrestee was acting in a hostile manner resisting arrest, or failing to comply with the officer’s arrest procedure;

 the relative height, weight, and size of the officer and the arrestee;

 the urgency of the situation, which could also inform the extent to which the officer needed to act despite having uncertain or insufficient information;

 the time available for the officer to react;

 any information that informed the officer’s belief that the arrestee might represent a threat;

 whether the officer believed that the arrestee was armed or that there might be weapons nearby;  the relative number of officers involved; and

 the alternatives to force that were available to the officer.

[209] I note that many of these considerations mirror those stipulated by the Court in Walcott.

Analysis

[210] I have no issue finding that elevated force was used by the officers in arresting Mr. Hardenstine. I accept that Mr. Hardenstine was punched in the head, face and body numerous times. The officers kneed him in the ribs and in the kidney area numerous times. He was tasered in the lower back and buttocks 10 times.

[211] After he was handcuffed, several officers described Mr. Hardenstine’s condition and appearance. I accept that his face was bloodied and swollen. I accept that he was in pain through the course of the struggle and after being secured in handcuffs. There is no doubt that he can be heard calling out in pain and moaning, both during the course of his arrest and afterwards.

[213] The first condition under s. 25(4) is that there be a lawful arrest. I have previously found that the arrest was unlawful as it is a consequential breach stemming from the arbitrary detention. I will now expand on the impact this finding has on the use of force analysis.

[214] Zacharias sets out a clear statement on the use of unconstitutionally obtained evidence at para. 26: where the arrest is based “on evidence that is subsequently found to have been unlawfully obtained, the court must excise this evidence from the factual matrix in order to determine whether the police had reasonable and probable grounds to arrest”. In this case, but for the unlawful detention, the officers would never have been able to identify Mr. Hardenstine as the passenger of the Chevy. Ultimately, the unlawful detention taints the entirety of the encounter. Without the identification, the officers could not arrest on the outstanding warrants. The Supreme Court of Canada has clearly stated that “the state is prevented from benefiting from the illegal acts of police officers”: R. v. Grant [1993] 3 S.C.R. 223 at p. 251, 1993 CanLII 68 (SCC). Here, the police used illegal means to identify Mr. Hardenstine. This identification cannot be used to ground the arrest. (Emphasis added by PJM)

[215] I note that the officers in this case no doubt believed that once they had identified Mr. Hardenstine, the warrants provided the authorization necessary to arrest. This is a mistake of law, not one of fact, and therefore provides no excuse or rationale to salvage the arrest: Zacharias at paras. 32–34. Citizens have “a legitimate expectation that the police will know and comply with the law, especially the Charter” and this principle “applies no less in dynamic situations”: Zacharias at para. 43; Tim at para. 30. Section 9 protects individuals from unjustified state intrusion. Mr. Hardenstine’s liberty was undoubtedly intruded upon, and the state cannot utilize the fruits of this intrusion, regardless of Mr. Hardenstine’s alleged criminality. (Emphasis added by PJM)

[216] I recognize that Zacharias dealt with warrantless arrests, and in the case at bar, there were warrants authorizing Mr. Hardenstine’s arrest. However, I do not read the Supreme Court’s decision in Zacharias to have a narrow application. Rather, the Court is clear that the decision reflects a principled approach to the Charter and an answer to divergent lower court decisions regarding arrests grounded on unconstitutionally obtained evidence: at para. 26. Here, despite there being legal authorization to arrest in the form of the warrants, the unconstitutionality of the detention renders the arrest unlawful, and therefore any use of force unlawful. But for the arbitrary detention, the arrest would not have been executed. (Emphasis added by PJM)

[217] The arbitrary detention is determinative of the lawfulness of the subsequent police action in this case. Because the police officers proceeded in the manner they did, there was no way to lawfully arrest Mr. Hardenstine that night. However, I will nonetheless conduct the remainder of the analysis on excessive force.

[218] In short, even if the arrest itself had been lawful, I would have found on the balance that the use of force was excessive in all the circumstances. While the force in the case at bar comes close to the line, ultimately the circumstances lead me to conclude that while the officers subjectively believed that the force was necessary, this belief was not objectively reasonable in the circumstances.

[220]…I accept that the officers subjectively believed that Mr. Hardenstine posed a serious threat, both physically and on account of the firearm.

[221] In relation to the tasering itself, I accept Cst. Turundzev’s evidence that he was afraid for his life and that he felt that it was necessary to deploy his taser…

[222] Second, was the officers’ belief objectively reasonable? That is, was their belief supported by facts known to the officers at the time that they formed their belief?

[223] With regard to the officers’ knowledge prior to the arrest and about the arrestee, all the officers testified that:

 They knew that Mr. Hardenstine was a person that could be considered “armed and dangerous”;

 They knew that Mr. Hardenstine had a history of fleeing from police;  They were operating on a tip that Mr. Hardenstine may have firearms;

 One or more officers noticed a gun during the physical struggle and one of them yelled, “gun, gun”;

 One or more officers perceived Mr. Hardenstine to be reaching for Cst. Poulton’s taser during the struggle;

 They were unable to secure Mr. Hardenstine’s hands despite the use of knee and hand strikes to his body and face; and

 They were initially unable to secure Mr. Hardenstine’s hands despite several deployments of the taser.

[224] In terms of the number and relative size of the participants in the arrest, I note that Mr. Hardenstine was significantly outnumbered and outweighed by the four and later five officers that he was struggling against. That said, Mr. Hardenstine presented as a physically imposing figure. He was described as being “fit” and “muscular”, weighing approximately 250 lbs and being 6’1” in height.

[225] Mr. Hardenstine was a large individual who was combative and highly resistive to arrest. Importantly, Mr. Hardenstine was not only generally believed to be armed and dangerous but also was on the evening in question believed to be in possession of at least two firearms which he planned to sell. During the initial takedown, police discovered that he was in possession of a long gun and that firearm had to be removed and discarded during the arrest. The officers had confirmed their belief that he would be armed and were therefore reasonable in theirfear that there may be another gun on his person that posed a risk to their lives.

[226]…Perhaps more experienced officers would be more confident that with an advantage of five-to-one odds, with more officers only minutes away, that Mr. Hardenstine would inevitably be controlled and handcuffed…

[227] The question that arises in this case is whether the initial decision to deploy the taser was both reasonable and necessary in the circumstances but may have at some point become excessive. The decision in R. v. Thomas, 2023 ONCJ 531 [Thomas 2023] provides an example of just such a situation. In Thomas 2023, police stopped a motor vehicle on the side of the highway for speeding. During the traffic stop the driver was removed from the vehicle for further questioning. The passenger then attempted to climb into the driver seat and flee the scene. He was initially pulled from the car and a struggle ensued on the edge of a traffic lane of the highway. Several other officers then intervened, and the passenger was physically moved to the gravel shoulder of the highway. There, he was physically wrestled under control by five officers. In the course of his arrest, however, he was tasered by three separate officers. He was also punched several times by at least one of the officers.

[228] In finding the force used was excessive, the Court in Thomas 2023 stated the following:

[40] I find that the defendant was not so much hostile and aggressive as he was desperate to flee and resistant to attempts to prevent that happening. While there was initially a risk of harm to the officers, it was minimized if not eliminated when he was moved to the shoulder. The force became excessive after that point…

[229] Like in Thomas 2023, Mr. Hardenstine was outnumbered and outweighed by the four, and later five, officers. As in Thomas, it was five to one. Once the officers were on top of Mr. Hardenstine, it was inevitable that he would eventually be brought under control. What distinguishes the case at bar from Thomas 2023 is the presence of a weapon, and the possibility of another being on Mr. Hardenstine’s person. This fact, known to all the officers, is what makes this case close to the line.

[230] What tips the scales, however, is the use of the taser. Even if the initial taser deployment was objectively necessary in the face of Mr. Hardenstine continuing to resist and based on the threat of a further weapon being on his person, I find the successive deployments unreasonable. Despite Cst. Turundzev’s testimony that the taser was having little to no effect on Mr. Hardenstine, the taser log filed by the Crown indicates that most of the deployments were separated by a mere one or two seconds, until the 11 second delay before the final deployment. This calls into question whether there was an objectively reasonable possibility that Cst. Turundzev could have been actively assessing the need to continue deploying the taser. The lack of any clear efforts on the part of Cst. Turundzev to pause and re-assess thenecessity of a further deployment in this case borders on reckless. This is especially so given his stated evidence that he was aware that multiple deployments of the taser can be life threatening to the subject. While I accept that Mr. Hardenstine was combative and resistive to arrest, I am not satisfied that the decision to deploy the taser on 10 separate occasions was objectively necessary. Nor do I accept Cst. Turundzev’s evidence on this point, as I find it would have been impossible for him to ascertain the effectiveness of the taser given the speed at which he was deploying it.

[231] I recognize that police actions should not be judged against a standard of perfection: Nasogaluak at para. 35. I must assess what was reasonably known to and perceived by the officers at the time of the arrest, accounting for the fact that police action involves a degree of discretion in difficult, dangerous, and fluid situations: R. v. Cornell, 2010 SCC 31 at paras. 23–24. However, viewing the situation objectively, the necessity of the multiple and almost continuous taser deployments is not made out…. (Emphasis added by PJM)

V. Conclusion

[265] Based on my findings above, all the items seized by police from Mr. Hardenstine, the Chevy and the scene of the arrest are excluded from evidence under s. 24(2) of the Charter

R v Serieaux, 2025 ONSC 2356

[April 17, 2025] Not Criminally Responsible by Reason of Mental Disorder [Justice H.S. Arrell]

AUTHOR’S NOTE: This case is a strong example of how an accused can still be found Not Criminally Responsible on Account of Mental Disorder (NCRMD) even where their conduct appears outwardly organized and suggests awareness of wrongdoing. It reinforces several critical legal principles that can help defence counsel overcome common prosecutorial arguments based on post-offence behaviour.

🔹 Key Legal and Strategic Takeaways:

1. Awareness of Legal vs. Moral Wrongdoing:

The NCRMD standard (per s.16 of the Criminal Code) focuses on whether the accused knew the act was morally wrong, not legally wrong.
The fact that the accused fled, hid, or destroyed evidence—even though this suggests awareness of legal consequences—does not conclusively establish that they understood their acts were morally wrong.

➡️ Defence Strategy: Emphasize that psychosis or delusional thinking may allow a person to appear logical while completely misunderstanding the moral fabric of their actions.

2. Moment of Offence is Key:

Courts have reiterated that the relevant mental state is at the moment the offence was committed.
Behaviour before or after may support or undermine NCRMD, but clinical evidence focused on the time of the offence reigns supreme.

➡️ Expert evidence should zero in on the accused’s capacity to distinguish moral right from wrong at the precise moment of the act, even if outward behaviour was coherent.

3. Disorganized Conduct Not Required:

While chaotic or bizarre behaviour often supports an NCRMD finding, its absence is not fatal to the defence.
Cognitive dissonance, delusional rationality, or goal-directed psychosis can produce conduct that seems ordered, but is underpinned by deeply disordered thinking.

➡️ The expert in this case likely helped the court understand that mental illness doesn’t always present as madness—and that rational-seeming acts may be delusion-driven.

🔹 How to Use This Case:

Combat Crown arguments that “fleeing shows he knew it was wrong” with this case as a counter-example.
Highlight that psychosis can coexist with planned or seemingly rational acts, especially in persecutory or grandiose delusions.
Use it to push back on judges or Crown trying to impose a common sense filter on mental illness where expert evidence says otherwise.

INTRODUCTION:

[1] Mr. Serieaux was convicted of first-degree murder in the stabbing death of Christopher Sim on August 8, 2021: see R. v. Serieaux, 2024 ONSC 5054

[2] Immediately after delivering my verdict, and before sentencing, Mr. Serieaux through Amicus advised the court of his request for a bifurcated NCRMD (not criminally responsible due to a mental disorder) hearing, which has now been completed. These are my reasons.

[10] There was no evidence at the trial of the index offence, again aside from the testimony of Mr. Serieaux, that Mr. Serieaux and Mr. Sim, who was also living in shelters, were acquainted prior to the killing.

[11] The evidence at the trial of the index offence established that, prior to the stabbing, Mr. Serieaux and Mr. Sim had a very brief physical altercation just outside the Mission Services lot (the “initial altercation”). Mr. Sim was clearly the aggressor and the winner of the approximately 22-second video-recorded initial altercation. During the initial altercation, Mr. Serieaux was knocked to the sidewalk by Mr. Sim, who then appeared to pull Mr. Serieaux’s hair, after which Mr. Serieaux ran from the scene. Mr. Sim then walked back to the Mission Services lot and entered the dining hall.

[12] Mr. Serieaux was next seen on video outside of the Mission Services lot, approximately 20 minutes after Mr. Sim has entered the dining hall. Mr. Serieaux appeared to be looking in the windows of the dining hall, and he was seen walking back and forth outside the Mission Services parking lot.

[13] Shortly thereafter, Mr. Sim exited the dining hall and walked down the exit ramp, which leads into the Mission Services parking lot. Mr. Serieaux saw this and immediately ran towards Mr. Sim, attacking him from behind for approximately four seconds and repeatedly stabbing him. He was pronounced dead in hospital shortly thereafter. Mr. Serieaux immediately fled. He was arrested two months later in Brantford. No murder weapon was found.

[14] Mr. Serieaux testified, at the index offence trial, that he knew the only way he could win a fight against Mr. Sim was if he used his four-inch knife that he always carried with him. Mr. Serieaux agreed in cross examination, that upon returning to the Mission Services lot, he was looking for Mr. Sim, with his hand in his pocket holding his knife, in order to stab him and to hurt him. Mr. Serieaux was adamant he did not intend to kill Mr. Sim. Mr. Serieaux testified that he stabbed Mr. Sim only once in the lower stomach and that he cut Mr.Sim’s eye when hitting him with the handle of his knife. Mr. Serieaux confirmed that he immediately ran away, as he knew the police would come and he did not want to get arrested. He also testified to knowing that the knife in his hand, which was covered in Mr. Sim’s blood, was evidence. He disposed of the knife in a dumpster.

[16] Mr. Serieaux testified that he knew Mr. Sim from earlier encounters. He testified that he had been shot in the leg, robbed, raped, and mentally transported by Mr. Sim through witchcraft in July of 2021. He testified to thereafter being constantly threatened by Mr. Sim’s demands for money. Mr. Serieaux testified that he had gone to the hospital because of the gun shot to his leg, however, there were no such records before the court nor did the police have any incident report involving gunshots between Mr. Sim and Mr. Serieaux. Mr. Serieaux stated that he was not looking for Mr. Sim when he ended up on the bench at the corner of Barton St. and James St. N. on the morning of August 8, 2021 (prior to the initial altercation). Mr. Serieaux gave no explanation as to why he would voluntarily cross the street to have a seemingly amicable ten-minute conversation with Mr. Sim, after being shot, robbed, and raped by him only a few weeks earlier, and constantly threatened thereafter. Mr. Serieaux said his head was cracked open during the initial altercation and that he was covered in blood when he ran away. The police found no trace of blood in the area of the initial altercation.

[17] Mr. Serieaux admitted on cross-examination that from the end of the initial altercation until the stabbing, a period of approximately 26 minutes, he thought constantly about going back to hurt Mr. Sim. He agreed that during that time he had planned not to use his fists but to stab Mr. Sim, as he did not think he could win a simple fist fight. He agreed that the only way he could get the better of Mr. Sim was if he stabbed him….

[18] Mr. Serieaux, when talking about this 26-minute period, again stated that he did not think that there was any possibility Mr. Sim would die. He admitted that he knew of people dying from a single stab wound but was adamant that he did not think there was any possibility Mr. Sim would die. He stated that he was shocked and surprised when he later learned, at Rico’s, that Mr. Sim had died.

[19] Mr. Serieaux admitted that at the time of the stabbing he knew what he was doing was wrong. He also agreed that other people would think what he did was wrong, however, as raised at the NCRMD hearing, such was not clarified as a belief he held at the time of the index offence versus at the time of testimony.

[20] Finally, at the index offence trial, Mr. Serieaux advised the Crown on cross examination that he had spoken to Dr. Komer, a forensic psychiatrist, and told him that Mr. Sim would not die because God had promised him he would not die if he stabbed him. (Emphasis added by PJM)

[22] The mental health records filed with the court indicate that Mr. Serieaux has, since adolescence, been diagnosed with paranoia, delusions, grandiosity, mania/bipolar disorder, schizoaffective disorder, personality disorder, antipersonality disorder, anti-social disorder, drug and alcohol abuse disorder, and schizophrenia. Oftentimes his delusions take on a religious tone, with elements of grandiosity, persecutory delusions against himself, and auditory hallucinations. He appears to have a pattern of chronically stopping his medication when out of hospital. His mental health then deteriorates to the point that he again must be hospitalized. He then starts to recover after recommencing his medication and is released and once again deteriorates. This cycle has never appeared to change.

[25] Dr. Komer confirmed Mr. Serieaux’s long history of mental health diagnoses, hospital admissions, and treatments over the years.

[27] As a result, Dr. Komer testified that likely Mr. Serieaux went without treatment and prescribed medication from the end of May 2021 up to (and following) the date of Mr. Sim’s death. The testimony of Mr. Serieaux, at the index offence trial, confirms this account.

[28] After numerous interviews with Mr. Serieaux, and a review of his extensive mental health records, Dr. Komer concluded that Mr. Serieaux knew that stabbing Mr. Sim was legally wrong and that it would harm him, but also that Mr. Serieaux genuinely believed, at the time of the offence, that Mr. Sim was a demon who had previously stabbed, robbed, and raped him. Mr. Serieaux, according to Dr. Komer, wanted Mr. Sim to stop tormenting and assaulting him and thus, on god’s direction, stabbed him. God had told Mr. Serieaux that such was the only way to stop Mr. Sim from harming him, and that Mr. Sim would be taught a lesson but not die. Again, Dr. Komer believed this to be a genuine delusion held by Mr. Serieaux at the time of the index offence.

[29] Dr. Komer was cognizant of the possibility that Mr. Serieaux may have been malingering but concluded that was not the case for several reasons.

[30] First, in Dr. Komer’s professional experience, those who are malingering during an NCRMD assessment will, almost always, consistently affirm their mental illness. Such was not the case with Mr. Serieaux who has most often over the years, both before and after the index offence, denied his psychotic diagnoses….

…. In Dr. Komer’s opinion, for the most part, Mr. Serieaux is unable to even recognize his delusions as symptoms of mental illness.

[31] Dr. Komer also rejects malingering in this case because of numerous corroborative incidents in Mr. Serieaux’s medical history. Such incidents include past references of psychotic delusions among the reviewed records, more specifically, that Mr. Serieaux believed he was the prophet Allah, that he was the son of god, that he was Jesus, that people such as his mother and father were possessed by the devil, or that he had been injured by someone when he had not. These delusions are similar to those that Mr. Serieaux selfreported having to Dr. Komer, about Mr. Sim on the day of the index offence. Dr. Komer pointed out the importance of these past references to the malingering analysis, as their prior documentation (to the index offence) refutes their ability to be self-serving. Their prior documentation also tends to corroborate Mr. Serieaux’s delusional thinking regarding Mr. Sim at the time of the index offence.

[39] Dr. Komer was aware and considered in his opinion that Mr. Serieaux fled the scene, disposed of the weapon, and evaded capture for approximately two months. He opined that Mr. Serieaux was with his father for part of that time. He had also been homeless for a lengthy period and likely street smart which may have assisted in him evading the police. In considering these actions, Dr. Komer reiterated that Mr. Serieaux knew he had done something legally wrong but did not appreciate the nature and quality of his actions or believe that what he did was morally wrong. Dr. Komer confirmed that on this basis Mr. Serieaux’s evasion of the police did not alter his overall opinion.

[40] Dr. Komer agreed that, following the index offence, Mr. Serieaux’s first recorded mention of any delusion that Mr. Sim was a demon or that god told Mr. Serieaux to stab him and that he would not die was in May 2022, a number of months after the death of Mr. Sim. This was also the first time that Mr. Serieaux mentioned that Mr. Sim had previously assaulted him. Dr. Komer testified that this delay did not alter his opinion as there may be a number of explanations for it, such as Mr. Serieaux not being asked the proper questions. Dr. Komer did not take this delay to mean that Mr. Serieaux’s delusion was not genuine or that it had been backdated. Again, Mr. Serieaux had had similar delusions before the incident and his explanation of his delusions at the time of the incident were consistent with those prior delusions – i.e. speaking with god, that he is god, that his mother had the devil in her and he needed to kill her, as did his father, that his girlfriend was a witch, and numerous prior reports of being injured by others when he had not.

[50] Dr. Gojer was qualified as an expert forensic psychiatrist and his two reports were exhibits before the court as was his C.V. He had been asked by the court to provide an NCRMD assessment regarding Mr. Serieaux.

[54] Dr. Gojer wrote two reports. The first dated August 6, 2024. In that report, after reviewing various records he was sent by counsel and the two-hour interview of Mr. Serieaux, he opined that he was not NCRMD and that a malingering component could not be excluded. Dr. Gojer listed malingering as a differential diagnosis that would benefit from further investigation.

[57] Dr. Gojer’s second opinion changed from his first one in a keyway, listing malingering as a primary diagnosis rather than a differential one. He testified that Dr. Grimes report pushed him from a differential diagnosis to a primary one. Dr. Gojer concluded from reviewing Dr. Grimes report that Dr. Grimes’ opinion was that Mr. Serieaux, based on her own testing, was malingering in his account of the index offence. This in fact was not Dr. Grimes opinion. Dr. Grimes was quite clear that she could not conclude that Mr. Serieaux was malingering. Dr. Gojer never spoke to Dr. Grimes about her opinion to clarify it.

[58] Dr. Gojer admitted that he was not an expert in malingering and that Dr. Grimes, a psychologist licensed to administer forensic testing for feigning/malingering, was. Dr. Gojer did testify, however, that the vast majority of his papers and lectures listed in his C.V. were relevant to the issue of malingering. On cross examination, Dr. Gojer back tracked significantly on that statement and admitted that only two of the papers and lectures listed on his C.V. were devoted to malingering.

[60] Dr. Gojer further opined that exaggeration, feigning, and impression management, as mentioned in a few of Mr. Serieaux’s records, are simply synonyms for malingering. That indeed was not the opinion of Dr. Grimes or Dr. Komer as stated earlier in this judgment.

[62] Dr. Gojer has admitted that in fact he did not review all the documents in this file, despite his earlier opinion that he had. He reviewed what he felt was relevant, which generally only included summaries of the actual source records by other doctors/staff. As an example, Dr. Gojer stated in his second report that the gap between the index offence and Mr. Serieaux’s first report to others of delusions and psychotic events was five months (being August to December 2021). He confirmed the longer the length of time between the index offence and independent collateral reports of psychotic events is important. He confirmed he had read the hospital records of October 28 and 29, 2021, but forgot about them and did not list them in his report to the court. In fact, he ultimately admitted that he only read a summary of those source records.

[63] The late October records are from very shortly after Mr. Serieaux’s arrest, when he was transferred from jail to St. Joseph’s psychiatric hospital due to bizarre and manic behaviour, refusing his medication and reporting that guards were poisoning and raping him. These behaviours were of such concern to the jail psychiatrist that he was admitted on a Form 1 for his worsening psychotic symptoms and schizoaffective disorder….

[64] Dr. Gojer felt that since there were no collateral sources to confirm Mr. Serieaux’s account of his delusions at the time of the index offence, and since his accounts were unreliable given the primary diagnosis of malingering, then the killing of Mr. Sim must simply have been his anti-social disorder acting in revenge for Mr. Sim punching him earlier.

[65] Dr. Gojer agreed it was likely that Mr. Serieaux did not have any treatment or medication from early June 2021 up to the index offence and thereafter until his arrest in October. He also agreed that during this time Mr. Serieaux had a severe schizoaffective disorder and may not have communicated his symptoms due to the negative aspects of this disorder, especially because Mr. Serieaux consistently denies having a psychotic illness. Dr. Gojer also confirmed that the longer one with schizoaffective disorder does not take medication regularly, or at all, the more significant delusional symptoms can become.

ANALYSIS:

[97] Dr. Komer provided his evidence in a clear and straightforward manner. He had no hesitation in admitting that his opinion, while not altered, may have weakened slightly in light of new material put to him by the Crown. He requested the services of Dr. Grimes to assess Mr. Serieaux in her capacity as a forensic psychologist and spoke with her about her findings, especially her conclusion that Mr. Serieaux did not meet the malingering criterion. Such coincided with his own views. Dr. Komer has had a long history with Mr. Serieaux, since 2022. He has a rapport with him. He has interviewed him numerous times, including for his assessment. He knew his own file for Mr. Serieaux well, as well as the extensive file of Mr. Serieaux from his teen years to date including its source material. His opinion did not waver on cross examination. His explanation that he felt he was not in any conflict position regarding his treatment and assessment of Mr. Serieaux was logical and persuasive. It was clear that, at all times, Dr. Komer understood his duty to the court.

[99] In contrast, Dr. Gojer did not know his file well and was effectively cross examined in a number of areas. Counsel pointed out things he had forgotten about or had not reviewed. He contradicted himself on a number of important issues in cross-examination as he would confirm review of a document only to have that document put to him and realize he had in fact reviewed a nonverbatim summary admittedly different from the source material. He was sometimes argumentative with counsel and often failed to answer questions in a straightforward way, instead giving long answers that strayed from the point. Further, Dr. Gojer clearly misinterpreted Dr. Grimes conclusions on malingering, which he admitted to being the key issue in the case. He failed to speak to Dr. Grimes about her opinion. He also only had one short two hour visit with Mr. Serieaux where he admittedly got very little information that hampered his own ability to give an opinion, yet he never attempted to re engage with Mr. Serieaux. He gave two different opinions on malingering in his two reports. He admitted he was rushed in preparing his second report.

[100] For all the above reasons, the court gives little weight to Dr. Gojer’s opinions.

The Court prefers the views of Dr. Komer and Dr. Grimes and where they conflict with Dr. Gojer’s they are accepted over his.

[104] This Court is satisfied that Mr. Serieaux suffers from a serious mental disorder, or disease of the mind, being schizoaffective disorder, and has for many years.

[105]…..As such, the Court concludes that on a balance of probabilities Mr. Serieaux suffered from a serious disease of the mind on August 8, 2021, being schizoaffective disorder.

[106] Mr. Serieaux must also persuade the Court that his disease of the mind was of such intensity at the time of the index offence that he either did not appreciate the “nature and quality of the act” being the stabbing of Mr. Sim; or that he did not know the act was “morally wrong.”: see R. v. Cooper, [1980] 1 S.C.R. 1149, at p. 1159; Worrie, at paras. 93-94.

[107] Dr. Komer opines that Mr. Serieaux knew the legal wrongfulness of his actions, however, his mental disorder rendered him incapable of knowing the moral wrongfulness or appreciating the nature and quality of his actions. He may have known he was stabbing the victim but according to Dr. Komer he did not appreciate the physical consequences of his actions as he thought the victim was not fully human, god had told him the victim would not die, and god told him he should stab him. Dr. Komer also opined that Mr. Serieaux’s delusional beliefs pertaining to the victim and his auditory hallucinations of a religious nature rendered him incapable of rational perception, rational choice, and understanding of the wrongfulness of his actions according to the ordinary moral standards of reasonable members of society. In essence he was fulfilling the wish of god, he was harming a humanoid/demon, and his actions would not result in death. (Emphasis added by PJM)

[108] On a balance of probabilities, I accept the opinion of Dr. Komer, in relation both to the appreciation of the nature and quality of the act as well as its moral wrongfulness, as accurate regarding Mr. Serieaux when he stabbed Mr. Sim for the following reasons.

[111] The evidence before the court, both before and after the index offence, is abundant with references to Mr. Serieaux’s psychotic delusions of grandiosity, delusions, paranoia regarding harm befalling him, and auditory hallucinations of a religious nature involving god and of the devil/ demons/humanoids pursuing him….

[112] The Court accepts that many of these delusions are consistent in theme and have persisted for nearly a decade, both before and after the offence. The court accepts the views of Dr. Grimes and Dr. Komer that Mr. Serieaux is not attempting to malinger in consistently reporting psychotic delusions that he says were occurring at the time of the index offence. I accept that Mr. Serieaux has not backdated these delusions, as was a concern noted by Dr. Gojer.

[113] Dr. Komer has reported that during his many interviews with Mr. Serieaux he has stated that the victim attacked him and cracked open his head. That he blacked out and was hysterical. On May 1, 2024, Mr. Serieaux said to Mr. Komer, it was “like a devil controlled me… he was controlling my body”, as well as “God or the devil promised me he wouldn’t die from one stab wound.” On April 18, 2024, Mr. Serieaux recounted a similar possession, stating, “I had no freewill from the demon.” On June 26, 2024, Mr. Serieaux noted that Mr. Sim was a “humanoid demon. A demon human.” On July 15, 2024, regarding his conversation with god on the day of the index offence, Mr. Serieaux said “God said he would not die if I stabbed him.”….

[114] Dr. Gojer accepted that if the Court determined that Mr. Serieaux was not malingering, which it does, and accepts that the psychotic delusions reported by Mr. Serieaux at the time of the index offence were real to him, which it does, and accepts that god had instructed him to stab Mr. Sim as he was the devil and he would not die, which it does, then the doctor concedes that Mr. Serieaux would not have appreciated the nature and quality of his actions or that what he did to Mr. Sim was morally wrong. Ultimately, he would be properly NCRMD. The Court agrees. (Emphasis added by PJM)

[115] The Court has considered that none of the witnesses at the time of the index offence described any apparent psychotic episodes visibly occurring with Mr. Serieaux. Most of those witnesses did not know Mr. Serieaux well and would not have been able to define his behaviour on a scale of normal for him compared to abnormal. They saw him only very briefly. It is not surprising that witnesses would have no idea what Mr. Serieaux was thinking at the time of the offence and not surprising that he did not verbally or physically express those thoughts. (Emphasis added by PJM)

[117] The Court has also considered the after the fact conduct of Mr. Serieaux in escaping, disposing of evidence, and hiding from the police for two months. Such evidence can bear upon an accused’s appreciation of the wrongfulness of their conduct, however, “…such evidence is highly ambiguous and carries the risk that the trier of fact may mistakenly leap from such evidence to a conclusion of guilt without taking into account alternative explanations for the accused’s behaviour.”: see Worrie, at para. 142. On this NCRMD hearing, I have been provided with several alternative explanations for Mr. Serieaux’s after the fact conduct. As Dr. Komer stated, Mr. Serieaux knew what he did was legally wrong and as such he escaped…. (Emphasis added by PJM)

CONCLUSION:

[118] The court accepts that Mr. Serieaux was unable to appreciate the nature and quality of the stabbing, especially its physical consequences. The court also accepts that Mr. Serieaux was unaware of the moral wrongness of his act against Mr. Sim as he was “deprived of the capacity for rational perception and hence rational choice about the rightness or wrongness of his acts”, due to the psychotic delusions he was experiencing: see R. v. Szostak, at para. 57.

[120] I therefore find that Mr. Serieaux killed Mr. Sim on August 8, 2021, but that at the time he was suffering from a mental disorder pursuant to s. 16(1) of the Code. Accordingly, pursuant to 672.34 of the Code, I render a verdict that Mr. Serieaux unlawfully caused the death of Mr. Sim but is not criminally responsible on account of mental disorder.

[121] Mr. Serieaux will be remanded to the Ontario Review Board for disposition.

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The Defence Tooling – May 24, 2025: Excessive Interventions

Charter s.7 | Charter s.9 | Excessive Intervention | NCRMD

Posted On 24 May 2025

R v Walton, 2025 ONCA 368

[May 14, 2025] Excessive Judicial Intervention [Reasons by P. Lauwers J.A. with J. George and J. Copeland JJ.A. concurring]

A. OVERVIEW

B. ISSUES

C. ANALYSIS

(1) The Governing Principles

(2) The Principles Applied

(b) Did the trial judge continue to cross-examine Ms. Walton in tandem with the Crown?

D. DISPOSITION

R v Hardestine, 2025 BCSC 889

[May 12, 2025] Charter s.9: Ruse Stop, Charter s.7: Excessive Force [Justice Gottardi]

1. Section 9 – Arbitrary Detention:

2. Section 7 – Excessive Use of Force:

I. Introduction

IV. Analysis

Credibility and Reliability

Analysis

Common Law Authority for Traffic Stops

Analysis

Analysis

Was the stop a valid investigative detention for trafficking firearms?

Issue #2: Did the police conduct an unlawful search of the vehicle before or after Mr. Hardenstine’s arrest?

Issue #4: Did the police use excessive force during Mr. Hardenstine’s arrest?

Analysis

V. Conclusion

R v Serieaux, 2025 ONSC 2356

[April 17, 2025] Not Criminally Responsible by Reason of Mental Disorder [Justice H.S. Arrell]

INTRODUCTION:

ANALYSIS:

CONCLUSION:

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