The Defence Toolkit – April 10, 2021

This week’s top three summaries: R v Mohamed, 2021 ONSC 2336: s.9 #stale tip & #avoidance, R v Stewart, 2021 ABQB 256: accused past #sexual interest, and R v Millie, 2021 SKQB 69: #stereotypes vs actual motives

R v Mohamed, 2021 ONSC 2336

[March 30, 2021] Charter s.9: Stale Tips and Avoidant Behaviour [Nishikawa J.]

AUTHOR’S NOTE: Policing in high-crime neighbourhoods often results in imperfect conduct by enforcement officials. Whether the cause is overworked police officers, systemic racism, lax attention to constitutional standards because of less expectation of police complaints and lawsuits, or simply a function or more frequent interactions, this case is emblematic of the problems facing these neighbourhoods. Here, a stale tip was used to follow a male in the neighbourhood in an undercover vehicle – when he took evasive actions, he was arrested. The ruling goes through the tip, evasive behaviour towards undercover surveillance, and other more troublesome claims of the arresting officers and determines there were no grounds for an arrest.

Overview

[1] On July 19, 2019, officers of the Toronto Police Service set out in an unmarked police van to conduct surveillance on the accused, Ahmed Mohamed. They had information that Mr. Mohamed was selling drugs near Queen Street East and Sherbourne Street and that he was in possession of a firearm.

[2] Shortly after they set out, the officers spotted Mr. Mohamed riding an electric bike near the intersection of Queen and Sherbourne. He was carrying a black fanny pack over his right shoulder, diagonally across his body. Mr. Mohamed, who was heading north on Sherbourne, quickly made a U-turn to go back south, and then turned left to go east on Queen. The van also turned to follow him. After travelling a short distance on Queen, the van turned and blocked the path of Mr. Mohamed, who was riding on the sidewalk. Three officers quickly exited the vehicle. After a brief struggle, the officers arrested Mr. Mohamed and found a handgun in the fanny pack.

[4] Mr. Mohamed brings an application under s. 24(2) of the Charter to exclude the firearm and magazine found in his possession from evidence on the basis that his rights to be free from unreasonable search and arbitrary arrest under ss. 8 and 9 of the Charter were infringed. The Crown and defence agreed that the evidence on the Charter motion and the trial could be heard at the same time.

[5] The defence’s position is that the arrest was arbitrary because, at the time of the arrest, the officers did not have reasonable and probable grounds to believe a criminal act was being committed. The defence further submits that the search was unreasonable because it was not incident to a lawful arrest. The defence submits that the seriousness of the breaches and the impact on Mr. Mohamed’s Charter-protected interests outweigh society’s interest in an adjudication of the case on its merits.

Facts – The Briefing

[11] At approximately 4:20 p.m. on July 19, 2019, DCs Blair, Esteves, Walker, and Freeman participated in a briefing conducted by DC Durst. At the briefing, DC Durst provided the following information about Mr. Mohamed: he sells crack cocaine in the area of Queen and Sherbourne, he is possibly in possession of a firearm, and he will carry a firearm in a satchel when in the area selling drugs. The team was to attend the area and conduct surveillance on Mr. Mohamed. The briefing lasted approximately seven minutes.

[12] The briefing was based on a tip from a confidential informant. The officers had no further information regarding the source or date of the tip. The Crown admits that the tip was “stale” at the time.

Facts – the Surveillance & Arrest

[17] The van, which had been driving east, turned left on Sherbourne after Mr. Mohamed turned and also headed north. The van and e-bike both headed north on Sherbourne for a few seconds.

[18] The officers then saw Mr. Mohamed do a quick U-turn and go southbound on Sherbourne. When he reached the intersection of Queen and Sherbourne, Mr. Mohamed turned left to go eastbound on Queen on the north sidewalk.

[19] DC Freeman, who was driving the van, also made a U-turn on Sherbourne and headed south toward the intersection of Queen and Sherbourne. At Queen, he turned left to go east.

[20] After driving a short distance on Queen, DC Freeman then turned the van 90 degrees, drove it across the westbound lanes on Queen, and mounted the north sidewalk so that it was perpendicular to Mr. Mohamed’s e-bike, blocking his path.

[21] DCs Walker and Esteves quickly exited the van and identified themselves as police. They approached Mr. Mohamed. DC Walker’s hand touched the fanny pack Mr. Mohammed was carrying. DC Walker testified that he felt something heavy, metal, and with sharp corners, which he believed to be a firearm. He grabbed Mr. Mohamed and yelled “gun” to alert the other officers and passersby.

[22] Mr. Mohamed struggled and flailed his arms. DC Blair, who had exited the van after DCs Walker and Estevez, tackled Mr. Mohamed and both officers to the ground. DCs Esteves and Walker handcuffed Mr. Mohamed. DC Esteves opened the zipper of the fanny pack and located a handgun. DC Blair gave Mr. Mohamed his right to counsel. Mr. Mohamed was picked up by uniformed officers and taken to 51 Division.

Analysis Under s.9

[24] Section 9 of the Charter states that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” The purpose of s. 9 is to protect the individual from unjustified state interference. Section 9 limits the state’s ability to impose intimidating and coercive pressure on citizens without justification: R. v. Le, 2019 SCC 34, at para. 25.

[25] Mr. Mohamed bears the onus of establishing on a balance of probabilities that his s. 9 rights were breached.

[26] Section 495(1)(a) of the Criminal Code allows a peace officer to make an arrest without a warrant if they believe, on reasonable grounds, that the person has committed or is about to commit an indictable offence.

[27] In order for an arrest to be lawful, police must have reasonable grounds to believe that an offence is being or has been committed. The reasonable grounds inquiry has both a subjective and objective component. The officer must hold an honest belief that the person committed an offence. In addition, the belief must be objectively reasonable in the circumstances known to the officer at the time of the arrest: R. v. Canary, 2018 ONCA 304, at para. 21.

[28] In order for a belief to be reasonable, a reasonable person standing in the shoes of the police officer must be able to see the grounds for arrest: R. v. Brown, 2012 ONCA 225, at para. 14. In Brown, the Court of Appeal further stated: “the individual’s constitutional right to be left alone by the state cannot depend exclusively on the officer’s subjective perception of events regardless of how accurate that perception might be. The issue is not the correctness of the officer’s belief, but the need to impose discernable objectively measurable limits on police powers.”

[29] When considering whether an officer’s subjective belief is objectively reasonable, the court looks at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47. “The standard is met at the point where credibly-based probability replaces suspicion. Of course, the totality of the circumstances is to be considered.”: R. v. Dhillon, 2016 ONCA 308, at para. 25.

The Tip

[32] In R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at para. 53, the Supreme Court of Canada articulated the following considerations when evaluating whether a tip provides a reasonable basis for a detention:

•                     Is the information predicting the criminal offence compelling?

•                     Was the source of the information credible?

•                     Was the information corroborated by police investigation?

[33] It is not necessary, however, that a tip satisfy every element before it can be relied upon as a basis for an arrest: Debot,at para. 53.

[34] The surveillance bulletin reviewed at the briefing stated as follows: “CI info male is in possession of a firearm and sells crack cocaine in the Queen St E and Sherbourne St area.” CI refers to a confidential informant. DC Blair testified that when he prepared the surveillance bulletin, he recognized Mr. Mohamed because he had interacted with him a few months earlier in connection with an investigation for trespass.

[35] None of the witnesses had any further information regarding the tip, other than the fact that the information came from DC Durst. The information passed on by DC Durst is contained in his notes from the briefing, which state that Mr. Mohamed was “possibly” in possession of a firearm. The notes further state that Mr. Mohamed “will carry [firearm] in satchel when in area selling drugs.” The Crown did not call DC Durst as a witness. The Crown and defence agreed that DC Durst’s notes were in evidence, and both relied on them for the truth of their contents.

[36] The tip does not satisfy any of the factors articulated in Debot.

[37] First, the information that Mr. Mohamed was selling crack cocaine in the Queen and Sherbourne area was not compelling because it provided no detail or specifics about the alleged illegal activity. As all of the officers testified, the area is a high-crime neighbourhood known for drug-related activity. DC Walker testified that dealers come to the area to prey on vulnerable individuals with addictions. Similarly, the information that Mr. Mohamed was in possession of a firearm, and that he carried it in a “satchel” was also lacking in detail and not compelling, since many individuals carry bags of various kinds. Moreover, the tip was stale and there was no information as to when it was received.

[38] The defence relies on the use of the term “possibly” in DC Durst’s notes to argue that the information conveyed to the officers was speculative, and therefore less compelling.

[39] In their testimony, the officers did not specifically recall whether DC Durst said that Mr. Mohamed was “possibly” in possession of a firearm. The surveillance bulletin, which was the basis for the information provided at the briefing, stated: “male is in possession of a firearm.” Based on DC Durst’s notes, the information was that Mr. Mohamed was “possibly” in possession of a firearm, but also that he “will carry [firearm] in satchel when in area selling drugs.” Contrary to the defence’s submission, there was information that Mr. Mohamed was in possession of a firearm, and not just that he was “possibly” in possession of a firearm. I have nonetheless found that the tip was not compelling based on the lack of specifics.

[40] Second, the Crown adduced no evidence that would assist the court in determining whether the source of the information was credible. Because there is no information regarding the source or reliability of the tip, including whether it was based on first-hand information, it is not possible to find the source credible: R. v. Chioros, 2019 ONCA 388, at para. 18.

[41] Third, the Crown admits that the tip was stale and uncorroborated. No further investigative steps were taken to corroborate the information about Mr. Mohamed before the officers set out the night of July 19, 2019. The Crown concedes that the tip alone would not constitute reasonable grounds for the arrest.

Mr. Mohamed’s Behaviour

[50] The Crown relies on Mr. Mohamed’s behaviour when the officers were following him as one of the circumstances giving rise to reasonable and probable grounds for the arrest, specifically, that Mr. Mohamed was staring into the van and then made an abrupt U-turn to evade the police.

[55] DCs Blair, Esteves and Walker all testified that as the van and Mr. Mohamed’s e-bike proceeded north on Sherbourne, Mr. Mohamed stared at them in the van. DC Blair, who estimated that Mr. Mohamed travelled approximately 10 feet before stopping to make the U-turn, testified that Mr. Mohamed repeatedly turned his head in the direction of the van. He estimated that the van and e-bike were beside each other for three to five seconds.

[56] DC Walker testified that he first noticed Mr. Mohamed when the van came to a stop around the Maxwell Meighen Centre approximately 30 to 50 feet north of Queen. When he looked out the window, he saw Mr. Mohamed staring into the van. DC Walker stated that Mr. Mohamed “was kind of stopped” and looking at them, and then did a U-turn. DC Walker described the U-turn as jerky, and testified that Mr. Mohamed made the U-turn so quickly that he almost fell off the e-bike and had to put his foot down. DC Walker believed that Mr. Mohamed saw the van, saw them and tried to move quickly away.

[57] DC Esteves testified that Mr. Mohamed made a U-turn “as soon as he made eye contact with me” and that Mr. Mohamed knew who they were.

[60] DCs Blair, Walker and Esteves placed significant reliance on Mr. Mohamed’s behaviour, specifically, the staring and the U-turn, as a basis for their belief that he was in possession of a firearm. However, this assumes that Mr. Mohamed knew that he was being followed by police. For a number of reasons, I am not satisfied that Mr. Mohamed knew that they were police and that his actions were therefore evasive or suspicious.

[61] First, although the officers’ evidence is that the van used that night was well-known by individuals who frequent the Queen and Sherbourne area, the evidence does not support that Mr. Mohamed himself knew that the van was a police vehicle. DC Blair, who had previously interacted with Mr. Mohamed, could not specifically recall whether the same vehicle was used on that occasion.

[62] Moreover, while the officers immediately recognized Mr. Mohamed from the photograph on the surveillance bulletin and/or their previous dealings with him, there is no evidence that Mr. Mohamed actually recognized any of them from having dealt with them in the past. It is unlikely that Mr. Mohamed would have recognized DC Esteves from an arrest in 2016 or DC Blair from an investigation a few months earlier that did not result in any charges. It is unclear how visible DC Blair, who was in the back of the van, was to Mr. Mohamed. While DC Freeman said he knew Mr. Mohamed, no detail was provided as to their previous interactions. Mr. Mohamed could not have recognized DC Walker, because they had no previous interactions.

[64] While DC Blair believed that Mr. Mohamed noticed the van when both the van and the e-bike were stopped at the intersection of Queen and Sherbourne, there would have been a limited opportunity for observation. Although the van was stopped at the light, Mr. Mohamed was on the sidewalk, about to turn right. As a result, he did not have to stop at the light. The fact that he looked across the intersection does not necessarily mean that he was looking at the unmarked van or that he recognized it as a police van at that time.

[66] Second, the officers testified that their suspicions were raised by Mr. Mohamed staring into the van. While both DCs Walker and Esteves describe Mr. Mohamed as staring, DC Blair described numerous head turns, including when he was heading north on Sherbourne. It is difficult to see how Mr. Mohamed could have been staring so noticeably, or making head turns, given that it was only approximately three to five seconds that he was proceeding north on Sherbourne.

[67] Moreover, none of the officers made note of the alleged staring in their notes. If, as they testified, the staring was so significant to their basis for believing that Mr. Mohamed had a firearm, it would be reasonable to expect that they would have made note of it. When asked about the absence of any mention of the staring in his notes, DC Esteves admitted he did not make note of a significant ground for arrest. DC Walker testified that he put enough in his notes to refresh his memory. Given the number of interactions police officers have every day, it would be more logical to note a key detail that one might otherwise be likely to forget after a period of time. In addition, the purpose of officers’ notes is not only to refresh their recollection. The notes are also relied upon by others in the context of the prosecution. The officers’ explanations for not mentioning the staring in their notes was not satisfactory.

[68] Based on the foregoing, I find that Mr. Mohamed was not staring into the van or at the officers as they described.

[69] Third, despite the certainty of the officers’ testimony, there is evidence to suggest that they had not determined conclusively that Mr. Mohamed detected and recognized them when he made the U-turn. DC Freeman testified that he waited until Mr. Mohamed went east on Queen before making the U-turn in case he had not recognized them and because he did not want Mr. Mohamed to know that they were going to follow him. Similarly, after DC Freeman turned the van to go south and approached the intersection of Queen and Sherbourne, he stopped the van north of the intersection so it could not be seen by Mr. Mohamed, who was going east on Queen. The fact that DC Freeman continued to take steps to avoid detection by Mr. Mohamed suggests that at the time, the officers were not certain that Mr. Mohamed had detected them when he decided to make the U-turn. At least, they were not as certain as their testimony would suggest.

[70] All four officers testified that the Queen and Sherbourne neighbourhood is a high-crime area known for drug-related activity, and that this contributed to reasonable and probable grounds for Mr. Mohamed’s arrest. In R. v. Le, in the context of a detention, the Supreme Court of Canada found that the fact that an individual is located in a high-crime area should not, without more, form the basis for a detention: Le, at para. 132.

[71] It is also plausible that because he was in a high-crime area, Mr. Mohamed sought to avoid the van because he thought he was being followed by an unknown vehicle with a number of men in it.

[72] As a result, I am not satisfied on the evidence before me that Mr. Mohamed knew that the unmarked van was a police vehicle and that he was taking evasive steps when he made the U-turn on Sherbourne.

The Appearance of the Fanny Pack/Satchel

[77] In addition to Mr. Mohamed’s behaviour, the Crown relies on the officers’ observations of the fanny pack/satchel as part of the totality of the circumstances that gave rise to reasonable grounds to arrest Mr. Mohamed.

[84] As noted above, DC Walker believed “beyond a shadow of a doubt” that Mr. Mohamed had a firearm. DC Walker testified that he formed his belief that the fanny pack/satchel contained a firearm based on his significant experience with firearms, including 11 years with the Toronto police and two tours with the British armed forces. He testified that he had recovered approximately 20 guns in the past year, of which he estimated 10-15 were found in satchels such as the fanny pack Mr. Mohamed was carrying. DC Walker described how individuals carry guns

in similar bags, with the handle pointing up, so that they can easily reach into the bag and grab the handle. DC Walker testified that this was how the firearm was positioned in the fanny pack when he felt it when reaching for Mr. Mohamed.

[85] However, DC Esteves, who removed the firearm from the bag, did not recall how the firearm was positioned in the bag. DC Esteves recalled that the firearm was a “snug fit” in the bag and that another firearm would not have fit.

[86] The bag that Mr. Mohamed was carrying was in evidence. It is what would commonly be referred to as a “fanny pack” as opposed to a satchel. It is made of black nylon fabric. The fabric is not particularly thin, as DC Walker testified. Rather, it is of a medium or regular thickness for a bag of that type. I find that DC Walker’s testimony in chief was overstated, as was evident when he corrected his evidence to say that he could see a protrusion, as opposed to the outline of a gun.

[87] The fanny pack has a strap that would normally go around the waist and is therefore not very lengthy. When the bag is worn over the shoulder, the pouch part of it would be close to the body. The shape of the pouch portion of the fanny pack/satchel is rounded or curved at the bottom even when it is empty. Contrary to DC Blair’s testimony, the bottom would not appear flat when empty, like an empty grocery bag. It is possible, however, that the bottom would appear more rounded if something heavy was in the bag.

[89] This was made clear when DC Walker was asked to demonstrate, by putting the fanny pack/satchel on, how Mr. Mohamed was carrying the bag. DC Walker testified that the bag would appear looser on Mr. Mohamed, because Mr. Mohammed is slimmer than he is. Nonetheless, in my view, based on both the length of the strap and the manner in which it is worn, the fanny pack/satchel would not hang loosely and the pouch would remain close to the body.

[92] The fact that an individual is carrying a bag does not lead to the conclusion that they are carrying a firearm. The purpose of a bag is to be able to put items in it and to carry it around. Similarly, the fact that the bag appeared to be weighted, or have something in it, does not lead to the conclusion that it must contain a gun. Nor does the fact that a person is wearing a fanny pack/satchel in a high-crime neighbourhood lead to that conclusion.

[93] Based on the foregoing observations regarding the fanny pack and the officers’ evidence, it was not objectively reasonable for them to conclude, based on the limited opportunity they had to observe the bag, that it contained a firearm. In my view, based on the information contained in the tip, the officers jumped to the conclusion that Mr. Mohamed had a firearm without considering other possibilities. Given that the tip was not compelling, credible or corroborated, I find that it was not reasonable for the officers to conclude, based on their brief observations of the fanny pack/satchel, that Mr. Mohamed was in possession of a firearm.

The Totality of the Circumstances

[94] In determining whether the officers had reasonable grounds to arrest Mr. Mohamed, the question is not whether each fact standing alone supports or undermines the grounds for arrest but, rather, whether the facts as a whole, seen through the eyes of a reasonable person who has the same knowledge, training and experience as the arresting officer, make the arrest objectively reasonable: R. v. Canary, at para. 30.

[95] In R. v. Hassan, 2020 ONSC 6354, at para. 50, Himel J. stated that “there must be something in the conduct observed by police along with the rest of the circumstances that leads the officer to form the belief that there are reasonable grounds to arrest.”

[96] According to the testimony of DCs Blair, Walker and Esteves, the combination of Mr. Mohamed’s staring at them, the abrupt U-turn, and the appearance of the fanny pack/satchel caused them to believe that Mr. Mohamed was carrying a firearm. DCs Blair, Walker and Esteves all testified that once Mr. Mohamed made the U-turn, which they believed was to evade them, the situation was no longer one of surveillance, and they had reasonable grounds to arrest him.

[97] As detailed above, I am not satisfied that Mr. Mohamed knew that the van was a police van. Consequently, I am not satisfied that he was staring into the van or that he sought to evade the officers. I have also found that the officers’ certainty that the fanny pack, based on its appearance, contained a firearm was not justified.

[98] As noted previously, DC Esteves’ prior sighting of Mr. Mohamed was not reported to the other officers and is not a circumstance that the Crown can rely upon as a basis for reasonable and probable grounds.

[99] The defence does not substantially dispute the officers’ honest subjective belief that Mr. Mohamed was in possession of a firearm. However, their subjective belief, while perhaps honestly held, was formed hastily, and was based on their assumption that Mr. Mohamed had detected them.

[100] As was the case in Hassan, I find that the officers acted precipitously. They quickly concluded that Mr. Mohamed had a firearm in his fanny pack/satchel, a conclusion that was to a large extent influenced by a stale, uncorroborated tip. The tip was devoid of compelling details or information and there was nothing to support its veracity. Despite the weakness of the tip, the officers took no steps to verify or determine if the information was credible or reliable.

[101] Moreover, the officers did not turn their minds to further investigatory steps. Although they initially set out to conduct surveillance to corroborate the tip, once they came across Mr. Mohamed, they failed to consider less intrusive means of investigating and raced to arrest: Hassan, at para. 117, citing R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631. The officers rushed to arrest after observing Mr. Mohamed for an exceedingly short period of time, and when Mr. Mohamed’s actions were ambiguous. The limited time frame and information available to assess the situation were the result of the officers’ actions and decisions.

[102] For the reasons given above, Mr. Mohamed’s behaviour and the appearance of the bag are not sufficient to make their honest belief objectively reasonable. It was not reasonable for the officers to conclude, based on their limited interaction and observations of Mr. Mohamed, that he was in possession of a firearm. In light of all the circumstances, the officers did not have reasonable grounds to arrest Mr. Mohamed. I find that Mr. Mohamed’s s. 9 rights were breached and that the arrest was therefore unlawful.

Unreasonable Search

[106] If the arrest was not authorized by law, the search would be in breach of Mr. Mohamed’s s. 8 rights: Chioros, at paras. 51-60.  Because I have found that the arrest was unlawful, the search was not a valid search incident to a lawful arrest.

Section 24(2) Analysis

Seriousness of the Violation

[109] In my view, the breach was a serious one. Despite the absence of reasonable and probable grounds, Mr. Mohamed was taken down on a public street. The police acted on an admittedly stale and uncorroborated tip. While their initial intent was to conduct surveillance on Mr. Mohamed and to determine his current address or to verify whether he was engaged in unlawful activity, the situation quickly escalated when they saw him. They did not take steps to verify the tip, nor did they pursue investigation.

[110] The police could have but did not continue to observe Mr. Mohamed, including whether he sold any drugs or lived at the last known address. If they believed him to have a firearm, they could have, but did not, sought judicial authorization for a search warrant to search his home.

Impact on Charter-protected Interests

[113] Mr. Mohamed had a right to proceed without interference by police. The police interference caused by his arrest was neither fleeting nor technical.  The breach resulted in Mr. Mohamed being taken down on the street in a dramatic manner. DCs Walker and Esteves approached Mr. Mohamed on a busy public sidewalk and reached for his arms. When he resisted, DC Blair tackled all three of them. The police action was highly intrusive of the appellant’s liberty and privacy interests: Brown, at para. 27. The impact on his Charter-protected interests is significant.

Balancing

[118] In R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, Doherty J.A. held that “if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.” (Internal citations omitted.) See also: Le, at para. 142.

[119] The Charter-infringing conduct was serious and had a significant impact on Mr. Mohamed’s interests. The court should dissociate itself from evidence obtained through a negligent breach of the Charter: Le, at para. 143. A reasonable person informed of the relevant circumstances and familiar with Charter values would conclude that the admission of the evidence in this case would bring the administration of justice into disrepute.

Conclusion

[121] For the foregoing reasons, the application is granted. Mr. Mohamed’s arrest on July 19, 2019 was in violation of his rights under ss. 8 and 9 of the Charter. Pursuant to s. 24(2) of the Charter, the evidence of the firearm and magazine is excluded.

[122] Accordingly, the accused, Ahmed Mohamed, is found not guilty of the charges.

R v Stewart, 2021 ABQB 256

[April 7, 2021] Admissibility of Past Sexual Interest Records of the Accused [Mr. Justice A.W. Germain]

AUTHOR’S NOTE: While the Ghomeshi amendments to the Criminal Code have made life complex for defence lawyers seeking to admit records of prior communications with complainants in sexual assaults, there has arisen an parallel push to ensure similar records in the possession of complainants do not get admitted in court when their effect can be considered bad character evidence or evidence of prior sexual interest. As commented upon in Barton by the SCC, where the Crown seeks entry of past sexual history of a complainant, the common law applies to their attempt to do so. Here, the Crown attempted to sever the complainant’s side of past sexual convresations with the accused and just admit the sexual pictures and text messages sent by the accused. In a compelling judgement, all these records were not permitted on the basis of a range of exclusionary rules including relevance (past sexual interest is not probative of a likelihood to sexually assault), probative v prejudicial value, and the lack of relevance/probative value of partial statements.  

This case provides an excellent foundation to counter baseless attempts to lead bad character and propensity reasoning evidence masquerading as “narrative” evidence by the Crown in the context of allegations of sexual assault. 

Introduction

[1] Bradley Jack Stewart is a medical doctor accused of sexually assaulting one of his patients….

[2] This ruling relates to the Crown proposal to enter electronic communication between Dr. Stewart and the Complainant into trial. A voir dire was held to review the admissibility of this evidence. This ruling specifically relates to the admissibility of this evidence by the Crown, but does not foreclose admissibility as some of the same issues raised may be triggered by crossexamination, or as the trial progresses could lead to an application by the Crown to review the ruling based on changing facts and circumstances.

[4] The evidence of the sexual assault as described by the Complainant may be succinctly summarized thus:

On two separate occasions between January 2012 and December 31 2013, [but probably toward the end of 2012], Dr. Stewart acted inappropriately toward the Complainant. On the first occasion at the end of a medical appointment, the doctor and patient were in close contact. The doctor leaned into the Complainant kissed her fully on the lips and inserted his tongue into her mouth. At a later appointment, Dr. Stewart left the examining room, then after returning, kissed the Complainant and grabbed her hand and placed it on his penis that he had removed from his pants. The Complainant’s evidence is that on both occasions this conduct was without her consent.

The Voir Dire

[7] VD 1: are a series of emails between the email address of the Complainant and the professional email address of Dr. Stewart. They range in date between May 27, 2011 and May 29, 2011. As a general descriptor, the emails start formally and medically focused but later expanded into general information exchange.

[8] VD 2: was an email sent from Dr. Stewart to the Complainant dated August 13, 2011, which attached a photograph he had received from a third party. The subject of the email was: ‘Some women take forever!’ It denotes sexual conduct between a female and a skeleton.

[9] VD 3: The Complainant indicates that two groups of personal photos were texted to the Complainant by Dr. Stewart. The first group of three pictures can be described as: first, Dr. Stewart and a friend standing in cycling gear; second, Dr. Stewart’s friend and another male enjoying a beer; and third, a blacked out unresolvable photo which the Complainant asserts is a photo of a penis. Her assertion is that these photos were received by her from Dr. Stewart as part of long threads of texting to her Blackberry device. The Complainant saved these photos into a computer document by sending them to her email address. The second group of four photos (also part of VD3) are asserted by the Complainant as also having been sent to her Blackberry, then retained by her in her computer. These four photos consist of three photos of male genitalia, and a picture of a naked torso of a man (with no head shown) wearing a pair of white slacks in which the fly area is open exposing a pair of white underwear.

[10] VD 4: is a compilation of 88 text messages [92 reduced to 88 during the voir dire] received by the Complainant from Dr. Stewart, potentially between a date range as early as January 2011 and ending likely no later than February 2012. The Complainant selected some to save and put these together in a composite summary. They may not be chronological; they are admitted to be only a selection and they are void of either the complainant’s precursor text or the Complainant’s response to each of them. As presented, some of them can best be described as ‘steamy’, or textually pornographic. Some would call this ‘sex-texting’.

[16] The Defence asserts that after the decisions of R v Barton, 2019 SCC 33, R v Goldfinch, 2019 SCC 38, and R v RV, 2019 SCC 41, the trial judge has a heightened gatekeeper role and therefore, exhibits VD3 and VD4 are not admissible without the Crown seeking leave to introduce the reciprocating exchanges from the Complainant for a reason other than the prohibited grounds identified in Criminal Code s 276(1). The Defence also asserts strongly that the Crown cannot avoid the requirement to put before the court the entire statement in exchange between the parties on the basis that half of it is prohibited by s 276 of the Criminal Code, or by common law.

[17] The Defence asserts that the electronic evidence collectively is irrelevant and not admissible on that threshold admissibility basis. Alternately, it is legally prejudicial and the prejudice cannot be overcome by any judicial warning. The Defence asserts that the court would be hard-pressed to formulate a logical legal reason to leave a jury with the evidence in a jury trial and the self scrutiny should just be as rigorous in a judge alone trial.

The Voir Dire Ruling

[18] This is a difficult matter. Clearly, the proposed evidence shows that the relationship between the Complainant and Dr. Stewart strayed from an ordinary doctor-patient one. But, the purported purpose for admission of the evidence seems strained – to display Dr. Stewart’s sexual interest in the Complainant. Some of the proposed evidence fails the most basic test of admissibility. Some of the proposed evidence is more relevant. But, I am left wondering how probative it is regarding whether or not Dr. Stewart sexually assaulted the Complainant as charged. More concerning is the Crown’s tactic – in an apparent attempt to avoid triggering a Seaboyer application, the Crown has presented only one side of the conversations, removing from this Court the overall context in which to understand and evaluate the evidence.

[19] The information contained in the exhibits is not admissible in this trial based on the current state of the evidence and the Crown’s stated reason for introducing the evidence. While the reasons generally focus on relevancy, trial fairness, prejudice, and s 276, each of those potential exclusionary levers have different weight in the context of each proposed exhibit so they will be reviewed in turn.

[20] This ruling does however answer in the negative whether the Crown can avoid a Seaboyer application by making a conversational thread of sexually explicit texting ‘accused’- sided only; that is omitting the conversation of the Complainant which might otherwise trigger the trial scrutiny required by Seaboyer, Criminal Code s 276, or Goldfinch. To allow this would offend both the spirit and intent of the Criminal Code s 276, as well the most recent jurisprudence.

VD2

[22] VD2 is a sexually explicit (purportedly humorous) picture. It too predates the sexual assault allegation by at least a year, and were this a jury trial, the likelihood of risk that somebody on the jury would be offended and deposed to convict Dr. Stewart not on the basis of any guilt, but solely on the basis of bad taste is high. I am not confident that I could encourage any juror to erase that picture from their mind. In my view, the Crown has not articulated a cogent or practical reason for the admissibility of that photo which, has at its root, bad character evidence of Dr. Stewart. Further, we have no indication that the exchange between Dr. Stewart and the Complainant at this point was not part of a larger thread, which leads to the risk that this photo would be highly prejudicial and possibly unfairly taken out of context. For this reason, VD2 is inadmissible.

VD3

[24] The second group of pictures (still part of VD3) are more troubling. They represent three photos of male genitalia and a photo of a torso (head not shown) wearing white pants partially undone revealing white underwear. Again, there is no context to these pictures, they were part of the text exchanges between the parties and as importantly are highly prejudicial and of limited, if any, relevance. Dr. Stewart is not facing any type of Internet or electronic pornography transmission charge. He is facing the charge of sexual assault committed near the end of two medical appointments. It would be difficult to ensure that a jury seeing these pictures would not perhaps conclude wrongdoing on Dr. Stewart’s part, irrespective of any caution mid-trial, or in the final jury charge, that might be given. It is hard to disabuse the impression that a man who sends pictures of male genitalia is the type of man who would press himself on a woman, forcing non-consensual French kissing or grabbing her hand and placing it on his exposed penis. These pictures should not be admitted at trial.

VD4

[26] The first is that it’s not possible to review these commentaries attributed to Dr. Stewart without suspecting that they were part of an ongoing two-way steamy discussion about erotic sexual practices. On a pick and choose basis, the texts discuss the subject of explicit sexual fantasy, with a tinge of aggressiveness, and various types of intercourse. The Crown has not alleged that these numerous sexual messages were an unwanted, unsolicited and unreciprocated barrage directed by Dr. Stewart at the Complainant. Instead, reference to a potential Seaboyer application implies the opposite. In short, it is my view that this is specifically the type of evidence that the Supreme Court of Canada and the Alberta Court of Appeal directed judges to be cautious about and to maintain a gatekeeper function.

[27] The Supreme Court of Canada has stressed that sexual-related evidence may be admitted for relevant purposes, but such proposed evidence must satisfy rigorous criteria to ensure it does not undermine the integrity of the trial or the Complainant’s dignity and privacy: RV at paras 2, 60; Goldfinch at paras 1, 69 and 90, 113, 124, 128. Even ‘relatively benign’ sexual relationship evidence must be scrutinized and handled with care: Goldfinch at paras 46 and 73. The Crown is not immune from complying with the legal requirements: RV at para 78; Goldfinch at paras 75 and 142; Barton at para 80.

[34] The Crown, in my respectful view, proceeds on a dangerous and slippery slope in their approach to the introduction of this evidence. They say that by excising out the responses of the Complainant, they can satisfy – or in effect, avoid – s 276(1) and still put before the court the highly prejudicial, and they claim, highly relevant evidence of Dr. Stewart. I conclude that they cannot have it both ways. If there is a legitimate reason for the admission of this evidence, then the Crown should apply under Seaboyer to introduce the complete package (both sides of the conversation) so that we can properly discuss its admissibility. On its face however, it really has the feel of an attempt to first edit, and then admit bad character or propensity evidence.

[38] In this context, the concerns raised by Ferris are in my respectful view, very real, and I therefore conclude that the legal proposition is sound and applies to this case. In my view, where messages selected out of numerous email exchanges are truncated and possibly taken out of context, their overall meaning is hard to ascertain and the true character of the exchanges is missing. Accordingly, the probative value of the selected messages is tenuous.

[39] It is even more egregious in this case because the Complainant admits that she selected these threads and quotes out of many and out of context, to create a composite document out of the ones she selected. Had the entire thread been preserved and offered to the court, the legal reasoning may have been different. The Crown cannot pick and choose that which is wanted to attribute as a statement from the Accused without the entire context and circumstance, at least as far as is known to the Crown. Only then, and assuming that there were no further barriers to admissibility, might the statements be potentially admissible, but subject to a weight analysis.

[40] A final issue that I have to deal with is whether the propensity of Dr. Stewart to stream sexually suggestive texts to the Complainant should be excluded on the basis that it represents evidence of bad character, or propensity evidence. Given the large number and the specific nature of the explicit texts, it is hard to disabuse the impression that Dr. Stewart is sex-focused; and perhaps the type of person who might turn his sexual fantasies into reality, regardless of the Complainant’s lack of consent. Generally, this type of evidence is excluded by the Supreme Court’s decision in R v Handy, 2002 SCC 56. The Defence’s argument that the messages would engage improper propensity reasoning is strong.

[41] This text stream by Dr. Stewart some months before the alleged sexual assault is highly prejudicial propensity evidence based on the Handy legal principles. To paraphrase the Supreme Court in Handy, at para 31, nobody is charged with having a ‘general’ disposition or propensity, to crime. It is potentially propensity evidence, or evidence of bad character, hoping that a jury would infer that a man who texts erotic suggestions to a woman, is the type of individual capable of sexually assaulting her. Once emotion recedes about the inappropriateness of Dr. Stewart’s behavior, one sees that there is a complete disconnect between those two propositions.

[42] The Crown continues to urge me that the reason for the admissibility of these texts is not to taint the character of Dr. Stewart, but rather to show that he had a sexual interest in the Complainant. In my view, these texts are not probative of Dr. Stewart’s culpability on the offence charged. I fail to see how Dr. Stewart’s interest in the Complainant can be equated to sexually assaulting the Complainant. The heart of the Crown’s argument seems to suggest that Dr. Stewart’s interest in the Complainant was so strong that he felt impelled to translate the suggestive sex texts into reality. Thus, I remain of the view that notwithstanding the Crown’s strong assertion to the contrary, the admissibility of these text messages and pictures really is an attempt to diminish the character of Dr. Stewart. Assume hypothetically this was a jury trial, the admissibility of the photos contained in VD3 and the text stream in VD4 could only inflame some members of the jury against Dr. Stewart, irrespective of whether or not they conclude on the properly admissible evidence that he sexually assaulted his patient, the Complainant. The fact that this is a judge alone trial does not mean, despite the Crown’s assertion, that the possibility of prejudice is “extremely low”. Prejudice is prejudice.

[43] Thus, currently and based on the approach taken to this point in time by the Crown there are in my view three important reasons why VD4 (and VD3) should not be admitted as trial evidence. In short, a Seaboyer application would be required as a precursor; second, there is the Ferris issue of a lack of completeness; and third, there is the Handy issue where the evidence has no probative value but diminishes the character of the individual on trial.

[44] Therefore, VD 4 is also not admissible in this trial.

[45] Based on the evidence as it has developed so far, none of the electronic exchanges are admissible. If trial circumstances change the Crown is given leave to reapply.

R v Millie, 2021 SKQB 69

[March 16, 2021] Sexual Assault – Stereotypes vs. Inferences from the Actions of a Witness [De Sa J.]

AUTHOR’S NOTE: A tempting tool in the hands of any sexual assault case prosecutor is the ability to claim a defence lawyer’s cross-examination of a witness is based on stereotypes of human behaviour. It is rather easy to paint most cross in this fashion, but this is not actually a basis to interfere generally. Stereotypes of human behaviour are generally not a basis for argument in sexual assault or other cases. However, specific evidence of a complainant’s actions or motivations can ground arguments even through they seem similar to arguing on the basis of stereotype.  There is an important distinction. That is, the credibility/reliability of the witness is judged on their own actions/motivations not on how their actions match up with some stereotypically expected human behaviour. In this case, the distinction is made clear in a useful way for defence counsel. 

Introduction

[1] Mr. Millie (the respondent) was charged on November 16, 2017 with committing a sexual assault contrary to ss. 271 and 153(1)(a) of the Criminal Code, RSC 1985, c C-46 on (K.V.). The matter proceeded to trial in Provincial Court on September 16 and 17, 2019. Mr. Millie was acquitted of both charges.

[2] The Crown appeals the acquittal on the following grounds, as set out in its Notice of Appeal: …

c. The trial judge not only allowed cross-examination on rape myths, but also allowed the questioning to inform his decision on conviction, which also resulted in an unreasonable verdict.

Stereotypes and Rape Myths

[32] The law is clear that it is an error of law to base a credibility assessment on unfounded stereotypes or pre-conceived views about how victims should behave: R v Cepic, 2019 ONCA 541 at para 14, 376 CCC (3d) 286; R v C.M.M., 2020 BCCA 56 at para 139; R v A.R.D., 2017 ABCA 237 at para 28, 353 CCC (3d) 1 [A.R.D.] (aff’d in 2018 SCC 6, [2018] 1 SCR 218).

[26] The law is well established that there is “no inviolable rule on how people who are the victims of trauma like a sexual assault will behave”: ARD at para 42, citing R v DD, 2000 SCC 43 at para 65, [2000] 2 SCR 275. Reliance on impermissible generalizations or stereotypes about sexual behaviour in the credibility assessment of either the accused or the complainant is an error of law: ARD at para 9; Quartey [2018 ABCA 12] at para 2; R v Kodwat, 2017 YKCA 11, [2017] YJ No 36.

[27] In addition, prejudicial stereotypes may lead to drawing of inferences that are not based on evidence in the record, which in itself unfair [sic]: ARD at para 6.

[28] At issue is whether the trial judge improperly relied upon considerations that were not in evidence or on stereotypes or generalizations about the likely behaviour of sexual assault victims. If the trial judge so erred, the remaining question is whether the curative proviso in s 686(1)(b)(iii) of the Criminal Code can be applied to sustain the conviction, as no substantial wrong or miscarriage of justice occurred.

Reliance on Impermissible Stereotypes

[59] The Crown takes issue with the line of questioning by defence about the complainant’s relationship with her boyfriend and, as an extension of that, the trial judge’s reliance on the defence’s theory in his reasoning. The Crown argues that “the accused’s cross-examination seemed to play into the myth that complainants of sexual assaults are more likely than other complainants to fabricate their evidence in order to gain something” (Crown’s brief at para. 96). Further, the Crown argues that “the questions regarding the timing of K.V.’s report to police should also be the subject of scrutiny” (Crown brief at para. 98). The Crown argues that the trial judge gave weight to the defence’s argument and that this amounts to an error which led to an unreasonable acquittal.

[60] The defence maintains that the cross-examination was proper and that they were within their right to challenge the complainant’s credibility as it is relevant to credibility.

[38] The defence did not assert that jealousy was a motive for fabrication here. The defence position was that there was in fact a confused emotional state with the Complainant and she was motivated to make up a compelling personal crisis as the means to contact and reengage with her boyfriend. . .

[62] Here the accused denied in evidence that he committed the assault. He testified about what he said happened on the night of the alleged assault. His wife testified about what happened on the night of the alleged assault. Defence counsel proffered a motive as to why the complainant should not be believed, referring to the complainant’s own evidence about her desire to reunite with her then boyfriend. An accused, of course, does not have to prove anything. But as stated motive is an area that can be explored by both Crown and defence, even though motive is not an essential element of the offence.

[63] The defence argued that the complainant’s admission that she was strongly committed to her boyfriend and to re-establishing the relationship provided a motive to fabricate the alleged assault, despite her denial that she fabricated the assault for this reason, or any reason. The defence was arguing in essence that from the complainant’s evidence about her intent to re-establish her romantic relationship with her boyfriend, the trial judge should find her evidence that the alleged sexual assault occurred as not credible.

[64] Again, there is a difference between relying on generalizations and stereotypes that are abstract and asking the court to draw inferences that are tied to actions admitted by a witness. I do not agree the trial judge was relying on the generalizations or stereotypes that are abstract.

[67] In accordance with the case law, it would be improper for the court to draw an adverse conclusion about a victim’s credibility based on behaviour as there is “no inviolable rule on how people who are the victims of trauma like a sexual assault will behave”: A.R.D. at para 42. Even more specifically, “[n]o inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of sexual assault is supposed to react to the assault”: R v A.D.G., 2015 ABCA 149 at para 33, 25 Alta LR (6th) 379; also see R v Shearing, 2002 SCC 58 at para 121, [2002] 3 SCR 33; A.R.D. at para 62. But here, even if one could conclude the trial judge had done so, the trial judge’s findings of reasonable doubt rested solely on the evidence of the defence and not from alleged impermissible inference. The appeal on this ground is dismissed.