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The Defence Toolkit – April 5, 2025: Arrest outside Courtroom

Charter 11(b) | Credibility | Possession

Posted On 5 April 2025

This week’s top three summaries: R v Jackson, 2025 ONSC 1677: s11(b) new #arrest, R v Stewart, 2025 ONSC 1277, #possession in glovebox, R v Zborowsky, 2025 ABCJ 44: #credibility factors

R v Jackson, 2025 ONSC 1677

[March 14, 2025] Charter s.11(b): Arrest Interfering with Ongoing Trial Proceedings [M. Gibson J.] 

AUTHOR’S NOTE: This case highlights how police discretion in arrest timing can impact an accused’s right to a timely trial under s.11(b) of the Charter. The accused was arrested outside the courtroom just before their hearing, causing a delay that pushed the case beyond the Jordan ceiling. The court ruled that since police are part of the Crown for the purpose of delay calculations, their decision to arrest at that moment was a contributing factor to the delay.

As a result, the court ordered a stay of proceedings, reinforcing that police must consider the impact of their actions on trial timelines, especially in complex sexual assault cases that require multiple hearings.

Overview

[1] Steven Jackson (“the Applicant”) was arrested on July 3, 2022. He is charged on an Indictment dated February 23, 2023, with eight counts, including assault, assault with a weapon, mischief, criminal harassment, uttering a threat to cause death, and uttering threats to kill an animal.

[3] The Applicant seeks a stay of proceedings based on unreasonable delay. The Applicant’s Information was sworn in Kitchener, Ontario on July 4, 2022, making the Jordan date January 4, 2025. The total delay from the date of the Information being sworn on July 4, 2022, to the anticipated completion of the trial in the Superior Court of Justice on April 18, 2025, is 1,019 days, or 33 months and 14 days. Both the Crown and Defence agree that this is the correct number.

[4] This delay is 3 months and 14 days over the ceiling set in R. v. Jordan, 2016 SCC 27, and is presumptively unreasonable. The Applicant says that there is no Defence delay in this matter. The Crown submits that 31 days, or one month, should be deducted as Defence delay because the Applicant changed Defence counsel.

[5] This is not a complex case. Delays due to the COVID-19 pandemic are not a factor. The Applicant requests a stay of proceedings pursuant to s. 24(1) of the Charter as his right to be tried within a reasonable time guaranteed by s. 11(b) has been infringed. The Crown resists, and submits that once applicable deductions are applied, the net delay will be below the presumptive ceiling.

Facts

[14] On July 25, 2024, Defence Counsel appeared for what was anticipated to be stage 2 of the s. 276/268 application, however, the Applicant was arrested in the hallway prior to entering the courtroom. The Applicant was arrested due to the contents of his affidavit included in the Supplementary Application Record filed on June 25, 2024, for this matter. His affidavit included a video of the Complainant (a “live video”) in which she can be seen nude, as well as a still image taken from that video. An unredacted copy was provided to the Court and the Crown. It was sent to the Complainant’s counsel in a redacted form.

[15] Upon receipt of the affidavit, the Complainant’s counsel advised the Complainant did not consent to the taking of the photograph. Following the Applicant’s arrest, the Applicant was taken into an interview room and questioned about the photograph in the affidavit. The Applicant was then escorted by police to the detention area on the lower level of the Kitchener Courthouse and processed. Following his release, he was returned to the courtroom. The Crown requested the pretrial motions continue, hours after the Applicant’s liberty had been taken away because of an affidavit he filed on the same motion.

[16] Defence counsel took the position that they could not proceed with the argument for one of two reasons: either (1) the Complainant lied about not consenting to the photograph, which goes to her credibility at trial; or (2) the Complainant was telling the truth about not consenting to the photograph, meaning that Counsel had been involved in the commissioning of a criminal offence – which would have ramifications for the continued representation of the Applicant. In short, the Defence advised: “Mr. Jackson cannot have a fair trial unless there is a finding about whether or not she lied in an effort to avoid cross-examination at this trial about the issue of consent.”

[18] Complainant’s counsel advised that they were not available for the trial dates in September, should they be re-purposed to hear stage 2 of the s.276/278 application. Ultimately the Crown agreed that there was no option other than to adjourn the trial dates. The September dates, save for September 3-6, were vacated on the consent of all parties.

[19] On July 26, 2024, the Defence requested disclosure on the voyeurism charge via e-mail. On August 12, 2024, Defence received disclosure on the voyeurism charge. On September 3, 2024, Defence appeared and set new trial dates on the record. The matter was set for a 10-day trial during the weeks of April 7 and April 14, 2025, which were the earliest dates the trial judge, Justice Smith, had available. The pre-trial motions were set for February 6, 2025, and March 17, 2025.

[20] The Applicant has not been convicted of voyeurism, and the Crown indicated in October 2024 that this charge

Law

[26] If the delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances that justify the delay. The onus is on the Crown to establish exceptional circumstances led to a delay exceeding the presumptive ceiling. There are two types of exceptional circumstances: discrete events and particularly complex cases. In such exceptional circumstances the Crown must demonstrate it took reasonable steps prior to the delay exceeding the ceiling. In the case where the Crown is unable to demonstrate these steps, the charges will be stayed: Jordan, at paras. 69-71.

[27] Discrete events are unexpected and uncontrollable happenings which lead to delay that could not reasonably have been mitigated by the Crown. Discrete events can include medical emergencies, recanting witnesses, or misestimation of trial time estimates despite a good faith basis. This analysis is quantitative: delay caused by discrete events is subtracted from the net delay. If the net delay still exceeds the presumptive ceiling, the Court must assess whether the complexity of the case warrants the delay. This analysis is qualitative: the Court must consider the delay “in light of the particular complexity of the case”: Cody, at para. 64.

Analysis

[32] This case has not been affected by discrete events and does not involve complexities that may justify delays under exceptional circumstances. This case involves a series of assaults with one single Complainant. There are no judicial authorizations, and disclosure is not voluminous. The Applicant’s July 25, 2024, arrest resulted in the Complainant being charged with one count of voyeurism involving the same Complainant. I note that this charge was subsequently stayed by the Crown in the Ontario Court of Justice.

Exceptional Circumstances

[36] Since the net delay is above the presumptive ceiling, the burden shifts to the Crown to justify the presumptively unreasonable delay by pointing to exceptional circumstances. The Applicant submits there are no discrete events that would justify the delay beyond the Jordan ceiling. Exceptional circumstances lie outside the Crown’s control in the sense (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional

[37] The key issue that I must grapple with on this application is whether the laying of the new voyeurism charge constitutes an exceptional circumstance that was a discrete event and, if so, was it a discrete event justifying the delay over the presumptive ceiling? [Emphasis by PJM]

[38] I do not assess that it was. The delay in this case was caused by the police mishandling of the voyeurism charge, which unnecessarily derailed the proceedings, and foreseeably precluded the trial proceeding on the then-scheduled dates. [Emphasis by PJM]

[39] The Defence contends that the police did not have reasonable and probable grounds (“RPG”) to lay the voyeurism charge, but even if they did, the new charge could have been handled in a way not designed to interrupt and interfere with these proceedings. I make no finding on the RPG issue, as that charge is not before this Court, but I agree with the assessment that the manner in which the police handled the investigation, arrest and charging of the Applicant was inappropriate. [Emphasis by PJM]

[41] The difficulty with the Crown’s position is that, for the purposes of the delay analysis, the actions of the police as agents of the State are attributable to the Crown. Exceptional discrete events are unexpected and uncontrollable happenings. The advent of the “live photo” issue may have been unexpected by the Crown, but how it played out it was not uncontrollable. Crown counsel might not have foreseen the new allegations in advance, but could have influenced the police not to proceed in the way that they did, as the Crown was advised of the police intention to arrest the Applicant the day before. Moreover, even apart from the role of the Crown, with the application of any forethought, the police must have known that their actions would disrupt the proceedings.

[42] The Applicant was arrested outside the courtroom minutes before Court was to open. The police and the Crown must have known the arrest would prevent the Court from commencing with arguments on the motion. This was the direct result from the decision to arrest the Applicant minutes prior to court opening. Indeed, the police commenced questioning of the Applicant to gather evidence about the new charges immediately following arrest during the time court was to be in session. The police and the Crown would have been aware that any statement provided by the Applicant in response to police questioning about the circumstances under which the live photo was taken would have been relevant and material evidence on the charges on the Indictment before the Court. While police may not be criticized for continuing an investigation of charges before the Court, it is most unorthodox to arrest the accused for this purpose moments before a court hearing, and it was not necessary to do so. The disruptive effect was eminently foreseeable. [Emphasis by PJM]

[43] In making the arrest in this way, the police were reckless to the risk their actions would have in infringing the Applicant’s right to silence, right to remain silent, the presumption of innocence and his right to retain and instruct counsel. The Applicant was arrested for conduct that occurred under the direction of the Defence counsel who was standing next to the Applicant when he was arrested. Both the Police and the Crown should have known their conduct would create a wedge in the solicitor-client relationship that would have to be bridged before this matter proceeded. There was no urgency in this investigation. No necessity to arrest the Applicant and lay this charge at that time. The Applicant had been compliant with the terms of his judicial interim release. The Applicant, through his counsel, could have been forewarned about the anticipated arrest and made arrangements for the Applicant to have been arrested in a less disruptive manner.

[44] The new charge could and should have been handled in a way designed not to interrupt and interfere with the ongoing court proceed [Emphasis by PJM]

[45] Due to the police mishandling of the voyeurism investigation and charge, the original trial dates had to be adjourned and eventually rescheduled to April 2025. It is going to take 33 months and 14 days to complete the Applicant’s trial. Even subtracting Defence delay, the net delay remains 32 months and 14 days.

Conclusion

[48] After the conclusion of the Applicant’s trial, and accounting for a Defence delay of 31 days due to the Applicant’s change of defence counsel, the total delay remains 32 months and 14 days. This exceeds the Jordan timelines. This case is not unduly complex and there are no discrete circumstances justifying the delay. As such, the Applicant’s right to a trial within a reasonable time has been violated. Accordingly, the only sufficient remedy is to stay the proceedings under section 24(1) of the Charter.

R v Stewart, 2025 ONSC1277

[February 26, 2025] Possession of a Firearm in your Vehicle’s Glovebox [Dennison J.]

AUTHOR’S NOTE: This case underscores the role of common sense and life experience in assessing possession. The trial judge questioned how often a person actually checks their glovebox when evaluating whether the accused knowingly possessed a handgun found in their vehicle’s glove compartment. Given that multiple people had access to the vehicle, the judge found it plausible that the accused was unaware of the firearm’s presence.

This reasoning, along with other evidence, led to a reasonable doubt about possession, resulting in an acquittal. The case serves as a reminder that access to a vehicle does not automatically establish possession of its contents.

Overview

[1] After conducting surveillance of Mr. Stewart for several days over the course of three weeks, police executed a search warrant at 64 Mossgrove Crescent, Brampton, and of a grey Audi A4 that was owned by Mr. Stewart. Police seized a loaded firearm from inside the glove compartment of the Audi. Police charged Mr. Stewart with possession of a loaded restricted firearm.

[2] Mr. Stewart re-elected to have a judge alone trial. The Crown called the surveillance officers and officers who conducted the search. Mr. Stewart testified that he did not know that the firearm was in the glove compartment and that his uncle, Mr. Downey, had borrowed his Audi the previous evening. Stanley Stewart, Mr. Stewart’s father, also testified that Mr. Downey regularly borrowed Mr. Stewart’s Audi.

[3] The sole issue to determine in this case is whether the court is satisfied beyond a reasonable doubt that Mr. Stewart had knowledge and control of the firearm located in the glove compartment of his Audi.

The Firearm

[59] On February 23, 2022, DC Ferraro collected swabs and tested for fingerprints. There were no fingerprint results. When checking the firearm, DC Ferraro observed 12 rounds of 9 mm Luger FC and 5 rounds of Luger Harnady. The magazine was seated well in the firearm and the laser was functioning. The swab and the firearm were sent to the Center of Forensic Science. It was agreed by the parties that the firearm was tested for DNA and no results were obtained.

Mr. Stewart’s evidence

[60] Mr. Stewart testified that he resided at 64 Mossgrove with his father, his father’s girlfriend, his aunt, his grandmother, his brother and his uncle, Mr. Downey.

[64] Mr. Stewart testified that he purchased the Audi in the summer before police arrested him. It was a used 2013 Audi A4 sedan. He paid $13,000. He explained that he put down a down payment and financed the rest, paying approximately $216 per month. He also paid $250 per month for insurance. He does not own the Audi now because his girlfriend was in an accident, and it was written off.

[65] Mr. Stewart testified that he kept the main set of keys on the rack near the front door of the house like everyone else in the family so that they could move cars in the driveway if needed. He had a spare set of keys that was kept in a drawer in the dining room on the main floor, but he stated that if someone borrowed his car, they would use his primary key.

[66] Mr. Stewart testified that his girlfriend would sometimes take the car, and he would stay back to watch his daughter. Most of the time he would drive her.

[67] Mr. Stewart also testified that his brother would also use the car. He testified that his brother Marcel is 30 years old. He has a girlfriend who lives in Vaughn, and he would go back and forth and if he was at the house, Mr. Stewart would let him use the Audi. His brother did not own his own vehicle. [68] His father would use his car if his father’s car was at the mechanics.

[69] Mr. Stewart also testified that he let his uncle Mr. Downey use his Audi. Mr. Downey did not own a car. His uncle used it approximately two to three times a week. He stated that most of the time it would be at night. In cross-examination he explained that Mr. Downey usually used it after 10:00 p.m. There had been a couple of times during the day when he went to the liquor store.

[70] Mr. Stewart testified that there had been times that his uncle just took the Audi, but Mr. Stewart did not like that. He wanted his uncle to ask him when he took his car. He agreed that most of the time his uncle would ask to borrow the Audi.

[71] Mr. Stewart explained that his uncle would give him cash here and there usually between $50-$60, and there were times when he would fill up the gas tank. He agreed in cross-examination that his uncle was giving him $100 to $150 a week to use the car but he was not counting. He said on average he would say $100…

[74] Prior to this incident, Mr. Stewart agreed that he told his uncle not to crash his car. He did not really express any other types of concerns. He agreed that he never stopped his uncle from using his car. The only time he would not let his uncle use the car was if Mr. Stewart needed to use it. Later in cross-examination, Mr. Stewart stated that he had told his uncle “not to take his garbage” (i.e. criminal activity) to his car. Mr. Stewart agreed that he knew that his uncle had been in trouble with the law, and he had been in and out of jail most of Mr. Stewart’s life. Mr. Stewart testified that he did not know that his uncle had been charged with firearm offences in July 2021. Mr. Stewart’s lawyer told him that after he was charged. Mr. Stewart did not know what criminal offences he was involved in but knew he went to jail. Mr. Stewart agreed that he did not want any part of his uncle’s criminality because he did not want to mess up his boxing career.

[75] Mr. Stewart agreed that he while he told his uncle he didn’t want him to bring any garbage around his car, he was his uncle, and Mr. Stewart did not hold his criminal record against him. He stated that at the time he wasn’t concerned about that, but he should have been. He was pretty much hoping that his uncle wouldn’t get him tied up in anything that his uncle had going on. He said he was his uncle, and he was giving him money and he wasn’t looking too much into it.

[79] Mr. Stewart testified that the first time he learned the firearm was in the glove compartment of the Audi was at his bail hearing. He stated that he initially suspected that it was his uncle because he drove Mr. Stewart’s car the night before. Mr. Stewart testified that his uncle asked if he could use the car around 11:00 or 11:30 at night and after that Mr. Stewart went to sleep. He did not know how long his uncle had the car for. Mr. Stewart said he was shocked because he would not partake in anything that would steer him away from his boxing career. He denied putting the gun there. He stated that he did not go into the glove compartment and did not think to check it

[84] Mr. Stewart did not recall going out to inspect the car at 7:22 p.m. on the date police executed the search warrant as the surveillance officers testified but he agreed that it was possibly him. He also agreed that he drove to 70 Oak Meadow to visit his cousins.

[87] Stanley Stewart (“Stanley”) is Mr. Stewart’s father. He testified that they have a close relationship as he has been a single father to Mr. Stewart since he was three years old. He has kept his children active when growing up. Stanley coaches Mr. Stewart with his boxing so they train and travel together.

[91] Stanley testified that Mr. Stewart purchased the Audi about 8 months prior to his arrest.

[92] Stanley testified that Mr. Stewart would let his brother use the car to go to his girlfriend’s house to pick up his son to visit but he would not let him take the car if he was staying over night.

[93] Stanley testified that Mr. Downey did not own a vehicle. He would use multiple means to travel. He would walk, ride bike, uber, and Mr. Stewart would sometime loan his car. Stanley said Mr. Downey borrowed the Audi a couple of times a week, but it wasn’t on a schedule. He testified that this had been going on for months prior to Mr. Stewart’s arrest. He agreed in cross-examination that he wasn’t keeping track of when Mr. Downey used the Audi, but he was pretty confident that it was at least two to three times a week.

[101] The next time Stanley saw his son was at the bail hearing on zoom 10 days later. Mr. Stewart was released on a house arrest under Stanley’s supervision. Stanley picked him up at Maplehurst and drove him home. Some family members were there when he got home.

[102] After some time, Stanley went upstairs. He then heard a commotion in the basement. He went down and heard Mr. Stewart screaming and cursing at Mr. Downey. Stanley tried to diffuse the situation and told Mr. Stewart to go upstairs.

[117] The Court of Appeal in R. v. Choudry, 2021 ONCA 560, at para. 19, set out the relevant legal principles for constructive possession:

• Constructive possession is established when an accused does not have physical custody of an object but knowingly has it in the actual possession or custody of another person or has it in any place for their own or another’s use or benefit: Criminal Code, s. 4(3)(a); R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17; and R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 47.

• Knowledge and control are essential elements of constructive possession, which is established when the Crown proves beyond a reasonable doubt that the accused: (i) has knowledge of the character of the object said to be possessed; (ii) knowingly puts or keeps the object in a particular place, whether or not the place belongs to or is occupied by the accused; and (iii) intends to have the object in the place for the use or benefit of the accused or another person: Morelli, at paras. 15, 17; Lights, at paras. 44, 47.

• Tenancy or occupancy of a place where an object is found does not create a presumption of possession: Lights, at para. 50; R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at paras. 2-3; and R. v. Bertucci (2002),2002 CanLII 41779 (ON CA), 169 C.C.C. (3d) 453 (Ont. C.A.), at para. 18.

• When the Crown relies largely or wholly on circumstantial evidence to establish constructive possession, a conviction can be sustained only if the accused’s knowledge and control of the impugned objects is the only reasonable inference on the facts. The trier of fact must determine whether any other proposed way of looking at the case as a whole is reasonable enough to raise a doubt about the accused’s guilt, when assessed logically and in light of human experience and common sense: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56; Lights, at para. 39; and R. v. Stennett, 2021 ONCA 258, at paras. 60-61.

[118] The Crown asks this court to infer from the surrounding circumstances that Mr. Stewart had the requisite knowledge for possession. The approach to be taken when considering circumstantial evidence was discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30. To be satisfied beyond a reasonable doubt of the guilt of Mr. Stewart, I must be satisfied that there is no other reasonable explanation for the firearm being in the glove compartment other than Mr. Stewart knew and had a degree of control over the firearm. It is not enough that the inference of guilt is the strongest inference; it must be the only reasonable inference.

[119] Alternative inferences need not be based on proven facts. The court must consider “other plausible theories” or “other reasonable possibilities” that are inconsistent with guilt. The Crown may need to negate the reasonable possibilities, but the Crown need not “negate every possible conjecture, no matter how irrational or fanciful which might be consistent with the innocence of the accused”: Villaroman, at para. 37.

[120] Justice Hill pointed to several factors that the court may consider in determining possession in R. v. Anderson-Wilson, 2010 ONSC 489, at para. 74:

(1) the physical proximity of the firearm to the accused

(2) the degree of visibility of the firearm

(3) the degree of communal use of a vehicle containing the firearm

(4) the size, nature and number of weapons in a particular space

(5) the nature of other items located proximate to the firearm capable of providing context for inferences of knowledge and control

[Citations omitted.]

Analysis

[124] The Crown submits that the only reasonable inference to be drawn from the evidence is that Mr. Stewart had knowledge and control over the firearm found in the glove compartment. In support of its position, the Crown relies on the following evidence:

a) The firearm was found in the glove compartment of the Audi that was parked in the driveway at 10 pm.

b) Mr. Stewart was the only person seen using the Audi between 2:04 p.m. until police executed the search warrant at 9:20 p.m.

c) Mr. Stewart owned the Audi. He made the car payments and paid the insurance.

d) Mr. Stewart had control over who could access the Audi. While others may have borrowed his car, they had to ask permission to do so. Mr. Stewart was the primary driver of the car. The Crown submits that Mr. Stewart exaggerated the use of the car by others. When the police conducted surveillance, he was the only person seen to drive the Audio on five separate dates. It was only on the first date that the police could not identify who drove the Audi. The Crown also submits that it is unreasonable to believe that the surveillance officers mistook Mr. Downey for Mr. Stewart, given the age difference and a comparison of the two photos.

e) The keys to the Audi were found in Mr. Stewart’s bedroom.

f) The Audi was locked prior to it being searched.

g) Mr. Stewart made use of the other nonvisible locations in the Audi including the console, where his wallet was found, and the trunk where he kept his gym clothes.

h) The firearm was not visible, but it was not hidden away. It was immediately accessible to anyone who opened the glove compartment.

i) The butt of the firearm was pointed towards the driver’s seat and was therefore positioned so that a driver could reach it. I note that the firearm was not as readily accessible as in other cases where for example the firearm is under the driver’s seat or in the console.

j) This was a loaded prohibited firearm. The Crown submits that it is not an item that one readily leaves lying around. It is valuable and therefore it is not an item that would be neglected in a moving vehicle without a knowledgeable caretaker.

k) Mr. Downey was not seen using the Audi that day. He was seen in an Acura the day police executed the search warrant, retuning home at 2:49 p.m. He also entered two other vehicles between 5:32 p.m. and 5:44 p.m. for brief periods of time as opposed to using the Audi.

l) While Mr. Stewart tried to distance himself from accessing the glove compartment, a receipt in his name dated January 2022 was found under the firearm in the glove compartment.

[126] Ultimately, I am left with a reasonable doubt that the only reasonable inference is that Mr. Stewart knew the firearm was in the glove compartment when I consider the defence evidence along with the rest of the evidence. I have come to this conclusion for the following reasons.

[127] First, I accept Mr. Stewart’s evidence that others used the car, and that Mr. Downey used it frequently. The Crown did not challenge that others may have used the car but submitted that it was not a communal car and Mr. Stewart controlled who had access. Mr. Stewart was not seriously challenged about his evidence that his uncle used the Audi approximately two to three times a week. There was nothing internally inconsistent in Mr. Stewart’s evidence. Nor was there any inconsistency between his evidence and the other evidence in this case. He was responsive to the questions that were put to him. He did not try to avoid answering difficult questions. I found that his answers about why he would let his uncle, whom he knew had a criminal history and no insurance, use his car to be honest — his uncle was family and gave Mr. Stewart money to use the Audi. The only inconsistency in Mr. Stewart’s evidence was that in examination in chief he said his concerns with letting Mr. Downey use the Audi was that he would crash it. In cross-examination, he then said he also warned Mr. Downey not to use it for any criminal activity. I do not view this as an inconsistency that significantly undermines Mr. Stewart’s credibility. Mr. Stewart never suggested that he was unaware of his uncle’s criminal activity. His uncle has been in and out of custody Mr. Stewart’s whole life. He still cared for his uncle and his uncle gave him cash which went a long way to helping cover the expense for the Audi for a young man with limited income.

[128] Mr. Stewart’s evidence that he let his uncle borrow his car frequently was corroborated by his father Stanley Stewart…

[129] I do not find that the surveillance evidence undermines Mr. Stewart’s evidence that his uncle borrowed the Audi approximately twice a week and that others borrowed his car. The surveillance occurred on five days over a three-week period. On the first date, four people were seen exiting the Audi but the police could not identify who was driving. Importantly the surveillance was not done at night.

[131] Second, I do not find that the receipt from January 2022 found in the glove compartment undermined Mr. Stewart’s evidence that he could count on his hand the number of times he accessed the glove compartment. As a matter of common sense and life experience it is not uncommon for people to keep receipts for their car repairs in the glove compartment. It is also a matter of common sense and life hat owners of vehicles do not check their glove compartment daily as compared for example to the console or even the side pocket of the door.

[132] Third, Mr. Downey has a lengthy criminal history that includes firearm charges. DC Shaw testified that if the detailed print out showed that Mr. Downey had outstanding firearm charges from July 2021. He stated that if that was on the printout at the time he would have been aware of that and the fact that Mr. Downey was on a firearm prohibition at the time of the investigation.

[134] Fifth, there are no fingerprints or DNA on the firearm.

[135] Six, the firearm was not visible in the sense of sticking out from under a seat where Mr. Stewart would have been expected to see it when he drove the Audi that evening, as was the case in R. v. Ali, 2008 ONCA 741, at para. 4.

[136] I agree with the Crown that it seems very unlikely that a person would leave a valuable, illicit, and dangerous item such as this firearm in the glove compartment of someone else’s car. But the evidence and theory raised by the defence raises a reasonable doubt. This is not a case where the accused is alleging that a prior renter or random person left a firearm in a vehicle: R. v. Ali, [2023] OJ. No. 6116 (C.J.), at para. 202. It is plausible that Mr. Downey, who had outstanding gun charges would view leaving the firearm in his nephew’s car as a safe place. There is evidence that Mr. Downey used the vehicle the evening before. The vehicle was owned by a member of the family so if the firearm was found, there was not the same risk of the matter being reported to police as if it was in a random person’s vehicle. Mr. Stewart did not want to get into trouble with the police nor would it be likely that he would want to turn in a family member. Mr. Downey may not have wanted to have the firearm in his room or on his person given his outstanding charges and his firearm prohibition. It is also plausible that Mr. Downey would not have checked the glove compartment on a regular basis to see what was in the glove compartment.

[137] While I think it quite likely that Mr. Stewart knew the firearm was in the glove compartment and therefore possessed the firearm in the Audi, I am not sure that is the only reasonable inference to be drawn from all the evidence and therefore I am left with no option but to acquit Mr. Stewart.

R v Zborowsky, 2025 ABCJ 44

[March 20, 2025] Credibility in a Domestic Violence Case: Timing of Complaints and Omissions [Justice B.R. Fraser]

AUTHOR’S NOTE: This case highlights two key credibility factors that led to an acquittal:

  1. Unexplained Delay in Reporting – While delayed reporting is generally not a credibility issue in sexual assault cases (due to recognized myths and stereotypes), in this non-sexual assault case, the judge found the lack of any explanation for a 13-year delay significant. It wasn’t merely the delay but the absence of a reason that raised doubt.

  2. Significant Omissions in Initial Statement – The complainant failed to mention the most serious alleged assault(striking + two-handed choking to unconsciousness) when speaking to police. While not a direct inconsistency, omissions of major events can undermine credibility, and the trial judge relied on this in assessing her veracity.

This case provides useful guidance for defence counsel when making credibility arguments—particularly when dealing with delayed reporting and omitted details in non-sexual assault matters.

[1] The accused is charged that he assaulted the complainant four times over the course of thirteen years and twice damaged her property. The assaults occurred in 2011, 2012, 2013, and 2024. The damage alleged occurred in 2014 and 2015. The complainant first made her complaint to the police on May 14, 2024, and charges were laid on June 7th, 2024.

[9] The complainant was the only witness called by the Crown.

[10] The accused was the only witness called by the defence. No exhibits were entered by either Crown or defence. The accused denies the allegations of assault of the complainant or causing damage.

The law of credibility and reliability

[14] In 2019 the Alberta Court of Appeal handed down the case of R v Ryon, 2019 ABCA 36 where they reiterated not only that the accused evidence must be considered in the context of the evidence as a whole but that R v WD (supra) does not stand for the proposition that the accused evidence must be considered first. They adopted the approach proposed by Doherty JA in R v Carriere, (2001) 151 OAC 115 (ONTCA).

[15] They then referred to the Supreme Court case of R v Dinardo (2008) SCC 24 as support for considering the accused evidence in the context of the evidence as a whole.

[16] It is only exculpatory evidence the instruction of WD applies to.

[17] In R v Achuil, 2019 ABCA 299, the Court of Appeal clarified its wording in Ryon regarding the second prong of WD.

[18] In assessing credibility there is no magic formula provided to triers of fact. Instead, there are a number of questions to be considered, for example, whether the witness seems to have a good memory of the relevant events, whether evidence provided by a witness seems reasonable and consistent and whether there is any reason why a witness would not be telling the truth. When assessing the evidence of the accused, it is impermissible to assume that the accused will lie to escape conviction. To do so would undermine the presumption of innocence, R v Laboucan, (2010) 1 SCR 397, at paragraphs 14 to 18.

[19] In addition, there are several authorities dealing with a bare denial by the accused or a different version by an accused.

[24] I have also reviewed the recent Court of Appeal decision in R v Clarkson, (2023) ABCA 212 at paragraph 17 and, R v Vaca (2022) ABCA 127 at paragraph 25.

[25] In Clarkson the Court of Appeal stated as follows:

accepting the evidence of a complainant can provide part of the explanation for why the accused evidence was rejected. Doing so does not mean that the trier of fact engaged in an inappropriate credibility contest. As noted in Vaca at paragraph 25:

an outright rejection of an accused evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence, is as much an explanation for the rejection of an accused evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused evidence.

[26] In Vaca, the Court of Appeal stated at paragraph 25 as follows:

Accepting the wifes and daughter’s evidence in these circumstances provides an explanation for why the appellant’s evidence was rejected since the appellant denied touching either the daughter or wife in the manner they described. In R v JJR (2006) (Ont. CA):

An outright rejection of an accused evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of the accused evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused evidence.

[27] That is my analysis of the law. I will now analyze the evidence.

The complainants evidence

[28] The complainant’s evidence was unclear on dates or times which is understandable when relating events over a period of 13 years. The reliability of that evidence has to be assessed. I am concerned about her evidence from 2 perspectives. The first is the timing of the complaint. The last count in the information was April 25, 2024. She makes the complaint to the police on May 4, 2024. One would surmise the April 25th incident was the catalyst in making all complaints and that she included previous assaults over 13 years. However, she gave no evidence of any assault occurring on that date or within a few days of making the complaint. No explanation was given as to why no complaints were made during those 13 years or why the complaint was made at that time. [Emphasis by PJM]

[29] The other concern is her description of what occurred on the third occasion in 2013. She described an argument in the office by the front door that resulted in the accused getting on top of her after posturing that he would hit her and then choking her with two hands to her throat. She stated she blacked out and couldn’t breathe. She thought she was going to die. In her statement to the police, she did not mention any of those facts about being choked, not able to breathe, or thinking she was going to die. These are the most serious facts of the assault, and yet she omits those details in her complaint to the police detailing them for the first time on the stand to the Court. [Emphasis by PJM]

[30] In the first incident, during the week of October 7, 2011, she describes an incident where the accused held a rifle and pointed it at her. She had just told him she was pregnant, and he was demanding she abort. He was 10 to 15 feet away. She was on the phone to an ex-boyfriend and her mother arrived at the front door. Neither were called to corroborate any part of this allegation. It turns out the rifle was a BB gun used in their pest control business. There was no suggestion of a physical assault, so the assault is the pointing of the rifle. There is no evidence from her that she thought he was going to assault her with the rifle.

[35] I find the credibility and reliability of the complainant’s evidence to be suspect. Her memory appears faulty as the dates and times and what actually happened on each event. I do not find it compelling so that I can dismiss the accused’s evidence without analyzing his credibility and reliability, to see if it might be true or raises a reasonable doubt as to the Crown’s evidence.

The accused evidence

[36] The accused denied all the incidents he was accused of, being the three assaults and the two damage incidents. He had good recall of each incident and gave a different version. He exhibited a calm demeanor on the stand and was able to give detailed accounts of each incident.

[37] He denied ever pointing a gun at her or demanding she get an abortion. He recalls working on the roof at the time and a girlfriend of the complainant’s came out and told him she, the complainant, was pregnant. He was happy they were going to have a child, and they went out to celebrate at a bar that night. He said he was in love with her and would not hurt her.

[38] He recalls the December 24, 2012, incident the complainant related. They were having a discussion about Christmas Day, and having family over which developed into an argument, but there was no physical altercation.

[39] He also recalled the incident where in he was accused of choking her and said it did not happen. She punched him in the face, and he grabbed her arms and wrists to stop her hitting him and they fell to the floor. He realized it was a stupid argument, and he got out of the house and sat on the back patio. He said the allegation he choked her was false and never happened

Conclusion

[47] As I have said, I had difficulty with the reliability of the complainant’s evidence of incidents occurring over a 13-year period. There was no explanation as to why these complaints surfaced in May 2024, especially when there was no evidence of a recent incident even though he was charged with an assault three weeks previous. I am also concerned she complains of a choking incident that caused her to black out and stop her breathing, and yet, in her statement to police omits all of that even though it would be the most serious part of any assault.

[48] The accused evidence was far more consistent and believable. It is not necessary for me to decide who is telling the truth. The accused’s evidence could be true, but he need only raise a reasonable doubt as to the allegations of assault as described by the complainant and he has done that

[50] For these reasons, I find the accused not guilty of all counts

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Pawel Milczarek, Appellate Lawyer in Calgary, AB.

Written By Pawel Milczarek

Pawel is a partner at Sitar & Milczarek. When he’s not litigating he writes the Defence Toolkit blog.

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