The Defence Toolkit – February 10, 2024: “Please knock before entry”

This week’s top three summaries: R v Russell, 2024 ONSC 529: s.8 no #knock, RTJ, R v TA, 2024 ONSC 528: #sexual purpose, and R v Avadluk, 2024 NWTCA 2: DO #sentences

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R v Russell, 2024 ONSC 529

[January 25, 2024] Charter s.8: No Knock Entry, Failure to File Report to Justice, Charter s.10(a) [A.J. Goodman J.]

AUTHOR’S NOTE: Manner of execution violations rarely result in the exclusion of evidence which is why police tend to ignore them more often. Here, police developed a systemic issue of ignoring manner of execution issues which ultimately resulted in an exclusion of evidence. No knock violent entries into residences cannot become the systemic norm for a police force. Individualized reasons for such an entry have to be established before such an entry is justifiable. Ignoring the requirement to file a report with a justice after the fact is also a Charter violation. Here, but for establishing grounds for entry, the rights of the accused mattered very little to the police force responsible. 

REASONS FOR RULING – SS. 8 , 10(b), AND 24 OF THE CHARTER

[1] The applicant, Holly Russell, (“Russell”) is charged with several drug offences including possession of cannabis for the purpose of distributing; unlawfully cultivating, propagating and harvesting cannabis; possession of psilocybin for the purpose of trafficking, contrary to their respective provisions of the Cannabis Act, S.C. 2018 c. 16, and Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) She is also charged with possession of proceeds of crime over $5000, contrary to the Criminal Code, RSC 1985, c. C-46.

[2] The offences are alleged to have occurred on June 2, 2021 in the City of Hamilton.

[3] Following a search warrant executed in relation to an alleged commercial marihuana dispensary, a significant quantity of marihuana, psilocybin, cash, and other related cannabis products were discovered and seized by officers of the Hamilton Police Service (“HPS”). The applicant was arrested and was transported to the HPS Central Station.

[4] The applicant seeks an order to exclude the drugs seized by the HPS. The relief sought is premised on several grounds, including assertions of an unlawful entry into the apartment, a failure to fille a Report to a Justice, (“RTJ”) and a failure to provide her with Rights to Counsel (“RTC”) pursuant to ss. 8, 10(b), and 24(2) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 (“Charter”). The applicant also seeks a stay of proceedings pursuant to s. 24(1) of the Charter, related to cumulative effect of the number of breaches that allegedly arose in this case.

Background:

[6] In late 2020, the HPS became aware that a cannabis dispensary known as the “Georgia Peach” – which had formerly had brick-and-mortar storefronts – was operating as an online delivery service.

[7] HPS received information regarding the operation of an online dispensary from a combination of four confidential informants and a Crime Stoppers tipster.

[8] Based on information received from these sources, the HPS began an investigation into the Georgia Peach, which they believed to be operating out of a residential unit at 140 Main Street West, Hamilton Ontario. Police began conducting surveillance on this building at some point in late 2020. During this surveillance, police observed what they believed to be suspected delivery drivers for the Georgia Peach entering the building. The officers made a number of observations (such as alleged marihuana odours coming from some of these drivers) that led them to focus their investigation on the building.

[9] On April 28, 2021, Detective Constable Michael Dougherty applied for and was granted a general warrant to allow police access to 140 Main Street, to enable HPS to determine the specific unit numbers involved. With their access to the building, police were able to narrow their investigation down to the 25th and 14th floors, and ultimately to unit numbers 1414 and 2502.

[10] On May 27, 2021, DC Dougherty applied for and was granted a warrant to search both units.

[11]…. At no point in the ITO was it claimed that police believed the occupants were armed, dangerous, or otherwise posed a threat to the safety of officers upon entering.

[12] The same ITO also requested a production order to require the building’s property management to provide police with information that could identify any parties that were connected with the units, so that police could rely on that information in planning and preparing to execute the warrant. Through the production order, police learned that unit 1414 was registered to a company known as “UH Properties” – Unit 2502 was registered to Russell.

[13] HPS officers ultimately executed the warrant on unit 2502 on June 2, 2021. The Crown called a number of police officers including PC Contos, Mogford, Lentz, Pacheco, James, and Tweedle. These officers did not knock or announce their presence when outside of the applicant’s unit. Instead, PC Tweedle employed a battering ram to gain entry into unit 2502 at 1:21 p.m. Unbeknown to the police, the dynamic entry to this unit was captured on video by the applicant’s security camera

[14]….. Some of the officers, including PC Lentz, could not recall why the decision was made to make a dynamic entry into the unit – citing instead a “usual” concern for the loss of evidence, but no specific safety or weapons concerns. It was also PC Lentz’ and Mogford’s evidence that HPS employed dynamic entries 90% of the time – and maybe even more often than that. All the police officer witnesses did not detail the information provided at the briefing prior to the search. The officers could not explain the justification for the no-knock entry into the applicant’s unit.

[15] The officers who testified all claimed that, upon entry, they shouted, “police” or “police – search warrant”. This was contradicted by the audio video CCTV captures of the police entry into the unit. Rather, the CCTV shows police breaking down the door to unit 2502 with a battering ram, which took many strikes, entering the unit with weapons drawn in a holding position, and then yelling “search warrant, get on the f*** ground” after gaining entry.

[16] Once police entered, the applicant and three other women were immediately confronted by the HPS officers .

[17] During the search of the unit. police located a safe containing Canadian currency, a quantity of psilocybin, and hundreds of pounds of cannabis.

[18]…Russell immediately requested to speak with her counsel, Mr. Peter Boushy. Other occupants of the unit at the time were also placed under arrest.

[19] Twenty minutes later, PC Contos turned over custody of the applicant to PC Anderson for the purposes of transportation to the HPS Central station. PC Contos’ evidence was that he had no idea if there was an operational plan for facilitating the RTC for any of the arrested parties. The applicant was not provided with any opportunity to speak with counsel at the scene. Russell maintained that she wanted to speak to her lawyer of choice.

[20] PC Anderson arrived with Russell at HPS Central Station by 2:06 p.m. The applicant was given an opportunity to contact counsel at 2:30 p.m., but there was no answer and she left a voicemail. Russell was eventually able to contact and speak with Mr. Boushy at 3:40 p.m. – over an hour after the booking process had begun.

[21] Ultimately the delay in implementing RTC was from 1:25 p.m., when the Applicant was arrested to 3:40 p.m. – a period of 2 hours and 15 minutes.

[23] PC Tweedle seized the drug evidence from the applicant’s unit. PC Pacheco was the exhibit officer. No RTJ regarding the seized items was ever completed or submitted. PC Pacheco claimed it was “overlooked.” It has not been remedied since and there are no plans to do so.

Positions of the Parties- ss. 8, 10 and 24 of the Charter:

[24] Ms. Schofield, on behalf of the applicant, submits that the search warrants were executed via dynamic entry, commonly referred to as a “no-knock raid.” The HPS’s use of dynamic entry, in the absence of exigent circumstances, and with limited or no information about the occupants was a breach of s. 8 of the Charter. The practice of dynamic entry without justification cannot be condoned.

[25] The applicant emphasizes that the actions of the police leading up to, during and after the search warrant was executed were not only disorganized but cavalier. This includes the fact that the RTJ was never completed, even up to the time of trial.

[26] Upon arrest, Russell asked to speak to counsel of choice. The first recorded instance of Russell speaking to counsel is three hours and 39 minutes after the search warrant was executed. When facing an additional charge, no further RTC was ever provided. The applicant submits that the HPS did not, without delay, facilitate their RTC informational or implementation obligations.

[27] The applicant submits that these breaches reflect the HPS’s systemic and repetitive disregard for the rights guaranteed under the Charter. As such, the circumstances of this case justify the exclusion of the drugs based on s. 24(2) of the Charter and the Grant factors….

Legal principles – Dynamic Entry- (No Knock):

[34] When police depart from a “knock, announce and notice” entry” there is an onus to explain the necessity for such an approach. In other words, it is acceptable for the police to enter a dwelling for which they have a warrant, without announcing themselves, where reasons exist for doing so: R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 20, R. v. Collins, 2023 ONCA 2, at para. 11.

[35] At the same tie, Gomery J. noted in R. v. Bahlawan, 2020 ONSC 952, at para. 14:

[14] Even if they have a valid search warrant, the police must, as a general rule, knock and announce their presence before entering a home. The knock-andannounce rule has been part of our law for over 400 years; R. v. Pan, 2012 ONCA 581 (CanLII), at para. 35. Even prior to the adoption of the Charter, the Supreme Court in Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739 held that the police not force their way into a residence unless there were circumstances that justified it:

Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house. In the ordinary case, they should give (i) notice of presence by knocking or ringing the door bell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry.

[37] The principles behind dynamic entries are not only to preserve evidence, but also the protection of the privacy interests of the occupants of the dwelling, as well as the safety of the public.

[38] The departure from “knock and announce” and the use of dynamic entry is also couched in the necessity for safety when police are going to be entering a dwelling. Dynamic entry can occur where the police are concerned about a possible risk to themselves, or the destruction of evidence. The greater the departure from knock and announce, the greater the burden to demonstrate the necessity of such an approach. It must be recognized that the threshold for officer safety is not high. Clearly, the police are not obligated to put their safety or life on the line, even if there is some minimal risk of weapons or danger: Cornell, at para. 20.

[39] When assessing a decision to enter dynamically, “the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises” They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require”: Cornell, at para. 24.

[41] The police are not required to seek prior judicial authorization to conduct the no-knock entry. However, the onus is on the Crown to establish that there were exigent circumstances or other justifications that made it necessary.

[42] Judicial review of dynamic entry must be assessed by what was or reasonably should have been known to the police at the time. In Cornell, at paras. 23-24, the Supreme Court set out the considerations for the trial judge when assessing the decision to depart from the knock-and-announce rule:

[23] First, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be. Just as the Crown cannot rely on after-the-fact justifications for the search, the decision about how to conduct it cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time: R. v. DeWolfe, 2007 NSCA 79, 256 N.S.R. (2d) 221 (N.S. C.A.), at para. 46. Whether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed “through the ‘lens of hindsight'”: Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28 (Alta. C.A.), at para. 45.

[24] Second, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3 (S.C.C.), at para. 73; Crampton, at para. 45. It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.

[43] In R. v. Flintroy , 2019 BCSC 90, at para. 18, Williams J. summarized the legal principles for dynamic entries arising from Cornell, with references as follows:

3. Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house. In the ordinary case, they should give: (i) notice of presence by knocking or ringing the door bell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry: Cornell at para. 18, citing Eccles at 747.

4. Where the police depart from this approach, there is an onus on them to explain why they considered it necessary to do so. If challenged, the Crown must lay an evidentiary framework to support the conclusion that the police have reasonable grounds to be concerned about the possibility of harm to themselves or occupants, or about the destruction of evidence. The greater the departure from the principles of announced entry, the heavier the onus on the police to justify their approach: Cornell at para. 20.

5. The evidence to justify such behaviour must be apparent in the record and available to the police at the time they acted. The Crown cannot rely on ex-post facto justifications.

6. As per Chief Justice Dickson in Genest, what must be present is evidence to support the conclusion that “there were grounds to be concerned about the possibility of violence”.

7. The decision by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be: Cornell at para. 23.

8. Section 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present:Cornell at para. 20.

[44] As referenced by the Supreme Court of Canada in R. v. Genest , [1989] 1 S.C.R. 59, and reiterated by Daunt J. in McKay , at para. 61:

[61] … the consideration of the possibility of violence must be carefully limited and should not amount to a carte blanche for the police to ignore completely all restrictions on police behaviour. The greater the departure of the standards of behaviour required by the common law and the Charter, the heavier the onus on the police to show why they thought it necessary to use force in the execution of the warrant.

Legal Principles Applied to this case:

[46] It is trite law that the search must be authorized by law, the law must be reasonable, and the search must be carried out in a reasonable manner: Collins 1987, at 278.

[47] The importance of engaging in a fulsome decision-making process was highlighted in Bahlawan. In discussing the manner of search, specifically the use of dynamic entry, Gomery J., stated at paras. 43-44:

[43] I agree that, had the police actually considered whether an approach other than a dynamic entry in this case, they might well have been justified in deciding, after considering the information at hand, that the risks of announcing their presence before entry were just too high. This is not however the scenario before me. There is no evidence of such consideration. I cannot uphold a decision-making process that simply did not occur.

[44] In these circumstances, I am unable to find that the Crown has met the burden if justifying the choice of a dynamic entry. The Ottawa Police Service operated on the basis of a practice that assumes that a non-dynamic entry is a rare exception as opposed to the rule. This turns the test in Eccles v. Bourque on its head.

[50] Justice Nakatsuru in R. v. Musara, 2022 ONSC 3190, considered dynamic entries and electronic evidence, at para. 136:

[136] Moreover, the possibility that electronic devices could be destroyed justified a dynamic entry. On this issue, a number of factors need to be balanced. First, electronic devices are now ubiquitous. Nearly everyone has them, on their person and in their home. If too much emphasis is placed on the concern that these devices will be destroyed, the police will almost always be justified in conducting a dynamic entry.

[51] In Musara, the dynamic entry was found to be justified because of the possibility of firearms being in the unit at the time of entry and the history of the targets increased the possibility that the evidence could be destroyed. The case before me is distinguishable from Musara because the there was no suggestion the occupants of the home were violent or had access to guns.

[53] Indeed, in R. v. Mac (2005), 194 C.C.C. (3d) 555 (Ont. S.C.), Weekes J. held that “dynamic entry” was not justified in a marijuana “grow-op” search where there was insufficient evidence of any risk to officer safety. As such, he found a violation of s. 8 and excluded the evidence. This example was relied upon by Code J. in R. v. Thompson, 2010 ONSC 2862, 255 C.C.C. (3d) 236, at para. 55, although the Court ultimately admitted the evidence in that case.

[56] InR. v. Ruiz, 2018 ONSC 5452, the court determined that the dynamic entry was unreasonable. The court concluded that the police had very little information about the situation and found no evidence of the issue of the manner of search having been meaningfully considered by the police in making their decision. The court ruled that there was no reasonable basis upon which the police could believe that weapons were present and there was only a mere possibility that evidence could be destroyed.

[57] The Ruiz case appears to mirror the circumstances here. The Crown contends that the tactical team’s sudden and violent entry was justified to prevent the destruction of evidence. It is true that illicit drugs are easily concealed or discarded. It is true that a small amount of cocaine or fentanyl is easy to flush, but that is not the case here. This was an alleged commercial cannabis operation. The officers in this case had some knowledge that there would be a significant amount of cannabis product, likely kilograms, not easily disposed of down the toilet or out the window. There were no “exigent circumstances” in this case. Police officers had no reason to believe weapons were present. They did no more than a perfunctory investigation of the residence itself. They had no grounds to believe there was any threat to officer safety. [PJM Emphasis]

[58] Indeed, the police must make some attempt to ascertain whether there is a real likelihood that, without a sudden and violent entry of the kind that occurred here, the occupants will have time – and will proceed – to conceal or destroy the evidence that is the object of the search. It is well established that generic information about the potential presence of drugs in a home is insufficient to warrant the dynamic entry.

[59] In this case, I did not hear from the officer who made the decision, and no cogent evidence was adduced as to the rationale or impetus for the dynamic entry and manner of search. The information relayed to the assisting officers at the briefing concerning the entry into the unit was entirely lacking, including whether there were any legitimate officer safety concerns.

[62] In this case, there is evidence before me that, during the relevant period, dynamic entries were employed by officers over 90% of the time in Hamilton. To me, dynamic entries were verging on becoming a systemic problem in Hamilton. Although I am also advised that subsequent to the timeframe of this search, the no-knock policy within the HPS has been modified.

[63] Returning to Flintroy, Williams J. noted that where dynamic entries have been found to be unreasonable it often includes “findings that the police were acting in accordance with what was essentially a blanket policy and without appropriate consideration of the facts of the specific situation”: at para. 34.

[64] In sum, I agree with the applicant that there were no exigent circumstances, or at least, none that were identified. The fact that police knew little about the contents or occupants of the units is an important consideration. It appears police did not even turn their minds to a non-dynamic entry.

[65] Having reviewed the video captures, contrary to what was expressed by the police officers who testified at trial, there was no warning, no shouting “police” “police search” or anything of the sort, before entering the unit. The evidence is considerably lacking and no officer was even able to explain the rationale for the dynamic entry. While there was some reference to a briefing, the officers who testified before me had limited or no recall of the instructions or operational plan for the entry.

[66] I am satisfied that the police search, specifically the use of the dynamic and “no knock entry into the unit without any justification, in this case, was therefore outside of the bounds of what was authorized. This was an egregious breach of s. 8 of the Charter: See Thompson, at paras. 69-75, citing R. v. Gogol (1994), 27 CR (4th) 357, wherein Fairgrieve J. explained that the power to search is not a “license to ignore the property rights” of accused.

Legal Principles – Report to Justice:

[67] Section 489.1 of the Criminal Code imposes a very specific duty on police officers following a seizure: Section 489.1(1) reads:

Subject to this or any other Act of Parliament, if a peace officer has seized anything under a warrant issued under this Act, under section 487.11 or 489, or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,

(a) return the thing seized, on being issued a receipt for it, to the person lawfully entitled to its possession and report to a justice having jurisdiction in respect of the matter and, in the case of a warrant, jurisdiction in the province in which the warrant was issued, if the peace officer is satisfied that

(i) there is no dispute as to who is lawfully entitled to possession of the thing seized, and

(ii) the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or

(b) bring the thing seized before a justice referred to in paragraph (a), or report to the justice that the thing has been seized and is being detained, to be dealt with in accordance with subsection 490(1), if the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii).

[68] The word “seizure” within section 8 of the Charter does not just refer to the physical act of the police taking an item. It contemplates the continued police detention of any said items because the “protective mantle” of s. 8 applies as long as the seizure continues: R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, at paras. 40-41, citing R. v. Colarusso, [1994] 1 S.C.R. 20 at 61, 63-64.

[69] Section 489.1(3) of the Code requires the police to fill out a form (Form 5.2) describing the authority under which the seizure was made, the thing seized and where and how it was being detained: Garcia-Machado, at para. 15.

[70] Section 490 provides for the making of orders detaining the things seized, but also recognizes a duty to return the items to their lawful owners if no exception applies: R. v. Backhouse (2005), 194 C.C.C. (3d) 1, at para. 106, Garcia-Machado, at paras. 18-24.

[71] Failing to fill out a RTJ as soon as practicable after a seizure can give rise to a breach of s. 8 of the Charter: R. v. Tsekouras, 2017 ONCA 290, 353 C.C.C. (3d) 349, at para. 98; Garcia-Machado, at paras. 25, 43-45. This is because s. 8 protection “extends beyond the initial seizure of an item. The protection of s. 8 remains in place for the entire time that item remains in police custody”: R. v. Fareed, 2023 ONSC 1581, at para. 48.

[72] Without a RTJ, the seizure is ongoing, is not authorized by law and is therefore unreasonable and contrary to s. 8 of the Charter: R. v. Lambert, 2023 ONCA 689, at para. 97. In considering whether s. 8 of the Charter was breached in Garcia-Machado, Hoy A.C.J. (as she then was) for the Court of Appeal, at paras. 44-45, wrote:

[44] The question on this appeal is whether the Constable’s failure to comply with the requirements in s. 489.1(1) to make a report to a justice as soon as practicable also rendered the continued detention of a seized item unreasonable and therefore contrary to s. 8 of the Charter.

[45] I conclude that the answer to that question is “yes”. As I have explained, it is clear that an individual retains a residual, post-taking reasonable expectation of privacy in items lawfully seized and that Charter protection continues while the state detains items it has taken. Sections 489.1(1) and 490 govern the continued detention by the state of the items seized and, I conclude, the requirement in s. 489.1(1) to report to a justice as soon as practicable plays a role in protecting privacy interests. The Constable’s post-taking violation of s. 489.1(1) by failing to report to a justice for more than three months after seizure of the blood and hospital records compromised judicial oversight of state-detained property in which the appellant had a residual privacy interest. It therefore rendered the continued detention unreasonable and breached s. 8. The fact that a person may have a diminished reasonable expectation of privacy after a lawful, initial police seizure and that in a particular case there may have been virtually no impact on that expectation will be important factors in the analysis under s. 24(2) of the Charter . However, they will not render continued detention after a clear violation of the requirement in s. 489.1(1) to report to a justice as soon as practicable reasonable.

Legal Principles Applied to this Case:

[73] As of the time of this application, no completed RTJ had been disclosed, nor does it appear that one had properly been filed before a justice. Consequently, what has transpired is effectively a continued unlawful detention of the seized items, from June 2, 2021 until present day.

[74] Unlike the Criminal Code , which requires a peace officer who has seized anything under warrant to report to a justice “as soon as practicable” that the thing has been seized and is being detained, the Cannabis Act sets out explicit 30-day timelines for when seized cannabis needs to be reported to the Minister of Health and a justice: Cannabis Act, s. 89(1).

[75] The law further requires where any seizure is made under s. 87 of the Cannabis Act, or pursuant to the Criminal Code , that “the individual who caused the report to be sent to the Minister must also, within 30 days after the seizure, cause a report to be filed with the justice who issued the warrant”: Cannabis Act, s. 89(2).

[76] Section 190(1) of the Cannabis Act requires, where a peace officer not only seizes but disposes of the cannabis, they must “within 30 days” after so doing, “cause a report to be sent to the Minister [of Health]” including the following required information: i. A description of the cannabis or property; ii.The amount of it that was disposed of or otherwise dealt with; iii. The manner in which it was disposed of or otherwise dealt with; iv. The date on which it was disposed of or otherwise dealt with; v. The name of the police force, agency or entity to which the peace officer, inspector or prescribed person belongs; vi. The number of the file or police report related to its disposition or the other dealing with it; and, vii. Any other prescribed information.

[77] Returning to the context of section 489.1 of the Code, the section requires that the RTJ be completed and submitted “as soon as is practicable.” A specific timeline is not built into the legislation, but it appears what is commonly contemplated is a matter of days, not years. Breaches of s. 8 have been found when a delay of three months took place; here the delay is more than six times that amount – and counting. [PJM Emphasis]

[78] Indeed, courts have resisted viewing compliance with s. 489.1 as a mere exercise in “meaningless” paperwork, as it provides a measure of police accountability: R. v. Canary , 2018 ONCA 304, at para. 45. This point is underscored very clearly by the forms used themselves: Property Reports require no less than three officers to review them at various times, and specifically require the completing officer to turn his or her attention to the completion of a RTJ, and the search warrant itself reminds executing officers on its face that a report must be completed following the search.

[79] Follow-up and diligence are built into the system, and yet a handful of experienced HPS officers failed completely in compliance. Many of these officers are senior members of the police service’s drug and gangs team – and are therefore supposedly experienced in the seizure of such items. Their participation in this failure makes this Charter breach all the more egregious.

[80] I adopt the comments of Molloy J. in Fareed, at para. 72: [t]he legislation requiring the report [to a Justice of the Peace] exists for an important reason – to ensure judicial oversight and public accountability whenever police take property away from people. This is an important value in our society.”

[81] These comments are similar to those made by Fairburn J. (as she then was) in Canary. At para. 45, Fairburn J. stated that s. 489.1 not only “provides for a measure of police accountability when dealing with property seized” but “provides an important measure of protection to the party who is lawfully entitled to the property.”

[84] With respect to the RTJ issue raised in this case, the temporal and contextual connection is made out. The “as soon as practicable” part of s. 489.1 of the Code means that the police have a positive duty and obligation to turn their minds to – and complete – this requirement.

[85] Here, approximately $500,000 worth of marijuana products and $50,000 cash were seized by the HPS. No RTJ was ever filled out for these seized items. PC Pacheco testified that this was a rare oversight on the part of the HPS. He acknowledged “partial responsibility” for the “team error”. The officer confirmed that no return has been filed to date and had no plans to rectify the situation. He could not give an explanation why it had not been done.

[86] The Crown argues the accused was not in lawful possession of these items, and therefore the importance of filling out the RTJ is limited because the items never would have been returned to the accused anyways.

[87] I cannot accept that argument. To the contrary, I agree entirely with applicant’s counsel’s argument that it is nonetheless an important, mandated albeit oversight on the part of the HPS. From the defence perspective, the things seized are still items of value. Fundamentally, the concern is for the integrity of the system and keeping control over what the state has. This was a large-scale operation. The seriousness of this breach is underscored both by how long it went on for – over two years – and the sheer number of officers who participated in this search. This is especially troublesome given the nebulousness of the evidence in reviewing the whole operational plan.

[89] The obvious failure to advise a justice of any seized cannabis – within 30 days and through to the present – constitutes a further breach of s. 8 of the Charter, as it rendered the seizures unreasonable.

Section 10(b) of the Charter– Right to Counsel:

[92] The implementational duty requires that police provide the detainee with a reasonable opportunity to retain and instruct counsel. This obligation also requires the police to refrain from eliciting incriminating evidence from the detained person until he or she has exercised RTC and has been provided with a reasonable opportunity to reach a lawyer or has unequivocally waived his or her rights.

[94] In R. v. Willier , 2010 SCC 37, [2010] 2 S.C.R. 49, the court held at para. 35 (citations omitted):

[35] Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: Black. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended.

[95] Courts have recognized that specific circumstances, including concerns for police safety, public safety, or the preservation of evidence, may justify some delay in providing a detainee access to counsel: R. v. Suberu , [2009] 2 S.C.R. 460, at para. 42; R. v. Rover , 2018 ONCA 745, 143 O.R. (3d) 135, at para. 26; R. v. Griffith , 2021 ONCA 302, 408 C.C.C. (3d) 244, at para. 38. Such concerns must be case-specific rather than general concerns applicable to virtually any case: Griffith, at para. 38; Rover, at para. 27; R. v. La , 2018 ONCA 830, 366 C.C.C. (3d) 351, at paras. 39-40.

[96] As Doherty J.A. explained in Rover, at para. 27, the police may delay access to counsel only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even if such circumstances exist, the police must take reasonable steps to minimize the delay in granting access to counsel. Griffith, at para. 38.

[97] Where those circumstances prevail, the police must move as efficiently and reasonably as possible to minimize any ensuing delay: R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at paras. 74-75. In R. v. Jarrett , 2021 ONCA 758, the Ontario Court of Appeal wrote the following about the implementation of s. 10(b), at para. 43:

[43] There are a number of ways in which the police may facilitate a detainee’s right to immediate contact with counsel. Where the police assume the responsibility of making first contact, rather than providing the detainee with direct access to a phone or internet connection, they must be taken to have “assumed the obligation to pursue [the detainee’s] constitutional right to [access counsel] as diligently as she would have”: R. v. O’Shea, 2019 ONSC 1514, 372 C.C.C. (3d) 352, at para. 42; R. v. Doobay, 2019 ONSC 7272, 61 M.V.R. (7th) 225, at paras. 29–33. “Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing”: Doobay, at para. 30.

[98] The police may not delay the right to counsel because of a “[g]eneral or theoretical concern for officer safety and destruction of evidence”: La, at paras. 39-41. Sometimes, the delay in contacting counsel can be justified, as considered by Rover, at paras. 26-27:

[26] The s. 10(b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety, or the preservation of evidence. For example, in R. v. Strachan , [1988] 2 S.C.R. 980 (S.C.C.), the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see e.g. R. v. Learning , 2010 ONSC 3816, 258 C.C.C. (3d) 68 (Ont. S.C.J.), at paras. 71-75.

[27] These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel: (citations omitted).

[99] While the facts are disparate, R. v. Khan , 2019 ONSC 2617, dealt with a large-scale police operation involving multiple arrestees and only one officer responsible for the booking of the individuals. In discussing RTC, Davis J. wrote the following, at para. 23:

[23] The Crown argued that it was reasonable for the police to assign one officer to facilitate rights to counsel for all the detainees and that Detective Coulthard “did his best” to get them all in touch with counsel as quickly as possible. The Crown argues that, in the circumstances of a project case like this, the delay in affording Mr. Khan access to counsel was not a violation of s. 10(b). I do not agree.

[100] Moreover, at para. 27, the court in Khan wrote:

[27] In my view, s. 10(b) of the Charter requires the police to assign enough personnel to the task of facilitating each detainee’s right to access counsel immediately when they are planning to make a number of arrests. Police efficiency and convenience in terms of resource allocation cannot justify delaying an accused’s right to speak to counsel for six hours.

Application of Legal Principles to this Case:

[101] In R. v. Wu , 2017 ONSC 1003, Di Luca J. noted that “[e]ffectively, the right to counsel should not be suspended unless exigent circumstances exist”: para. 78(a). At para. 78(b), Di Luca J. succinctly summarized circumstances in which the jurisprudence has recognized a basis for the suspension of the right to counsel:

i. Cases where there are safety concerns for the police, see R. v. Grant, 2015 ONSC 1646 at para. 107, R. v. J.J. , 2010 ONSC 735 at paras 276-8, and R. v. Learning , at para. 75;

ii. Cases where there are safety concerns for the public, see R. v. Thind, 2011 ONSC 2054 at paras. 113-15 and 122;

iii. Cases where there safety concerns for the accused, see R. v. Strehl , 2006 CanLII 39572 (ONSC) at para. 4;

iv. Cases where there are medical concerns, see R. v. Willier , 2010 SCC 37 at para. 8 and R. v. Taylor , 2014 SCC 50 at para. 31;

v. Cases where there is a risk of destruction of evidence and/or an impact on an ongoing investigation, see R. v. Rover , 2016 ONSC 4795 at para. 66 and 70, R. v. Kiloh , 2003 BCSC 209 at para. 15 and 38, and R. v. Salmon , 2012 ONSC 1553 at para. 92; and,

vi. Cases where practical considerations such as lack of privacy, the need for an interpreter or an arrest at a location that has no telephone access justify some period of delay, see R. v. J.(K.W.) , 2012 NWTCA 3 at para. 29-30, and R. v. Khairi , 2012 ONSC 5549.

[102] The latter factor is most relevant; the lack of privacy. In this case, Russell was given an opportunity to attempt to contact counsel approximately one-hour after her arrest. I accept that the officer could not afford privacy at the scene. There was no obligation on the arresting officer to provide his cell phone to effect the call to counsel. Here, a voicemail was left for the applicant’s counsel of choice at 2:30 p.m. At 3:39 p.m., the lawyer called back and spoke to Russell.

[105] I do not find that the delay in implementing RTC in this case gives rise to a breach of the accused’s s. 10(b) Charter rights. Counsel could not point to any cases that set out a best practices or magic timeframe for facilitating such calls.

[110] However, this does not end the analysis.

[111] As referenced earlier, mere minutes before speaking with counsel, the applicant faced an additional drug offence for possession for the purpose of trafficking, and her jeopardy was either practically or notionally altered. No RTC or caution was ever provided to her in response to this additional charge.

[112] Detainees are entitled to be informed of the reasons for their detention or arrest. The s.10(a) right is founded on the notion that one is not obliged to submit to an arrest if one does not know the reasons. Further, the s.10(a) right informs the right to silence: when detainees understand the extent of jeopardy they face, they can meaningfully decide whether or not to provide information and whether or not to seek the advice of counsel. Section 10(b) also links with the right to silence and an informed choice to speak: See R. v. Evans , [1991] 1 S.C.R. 869, at 886-887, Willier, at para. 27, citing R. v. Bartle , [1994] 3 S.C.R. 173, at 191.

[113] The Supreme Court of Canada in Suberu, at para. 40, explained that “the purpose of section 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy.” The constitutionally guarded right assists those regain their liberty and protect against involuntary self-incrimination.

[114] Moreover, and of significance in this case, where the jeopardy the accused is facing changes, the police must reiterate the accused’s RTC. This was discussed in Evans, at 892-893:

…This Court’s judgment in R. v. Black, per Wilson J., makes it clear that there is a duty on the police to advise the accused of his or her right to counsel a second time when new circumstances arise indicating that the accused is a suspect for a different, more serious crime than was the case at the time of the first warning. This is because the accused’s decision as to whether to obtain a lawyer may well be affected by the seriousness of the charge he or she faces. The new circumstances give rise to a new and different situation, one requiring reconsideration of an initial waiver of the right to counsel…

I should not be taken as suggesting that the police, in the course of an exploratory investigation, must reiterate the right to counsel every time that the investigation touches on a different offence. I do, however, affirm that in order to comply with the first of the three duties set out above, the police must restate the accused’s right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning.

[115] I must disagree with the Crown’s submissions of no operative Charter breach. Given the effect of not providing RTC to Russell upon being advised of a new charge arising from the search, not much more need to be said. Rare is the case wherein there is an absolute withholding of providing an applicant with their RTC, following a potential or real change in the jeopardy, which includes the addition of a new substantial charge. This is a fundamental breach of s. 10 of the Charter.

Section 24(2) of the Charter:

The Seriousness of the Charter-infringing State Conduct:

[125] Further, I do not accept that the evidence seized would have been destroyed even if the police had knocked and announced their presence. Contrary to cases with electronic evidence or easily destroyed evidence, for example, powdered product to be flushed down a toilet, here we are dealing with huge quantities of cannabis product.

[128] The impact of the breach of failing to return to a RTJ is also serious. It favours exclusion, because it created a situation where a number of seized items have existed in a jurisdictional limbo for over 17 months. This factor particularly favours exclusion when considered in light of all the additional Charter breaches at the hands of these same officers.

[129] The s. 10(b) Charter breach is also of concern. Indeed, the cumulative effect of these breaches is readily apparent in this case. Taken together all these related breaches in this case portray the cavalier approach to Charter rights that these HPS officers appeared to have had that day.

[132] In my opinion, the admission of this evidence would send a message that the justice system is somehow condoning serious state misconduct and its admission would greatly undermine public confidence in the justice system. In my view, this factor weighs heavily in favour of its exclusion.

The Impact of the Charter violation on the Charter-Protected Interests of the Accused:

[136] However, I do not arrive at the same conclusion regarding the subsequent charge and the complete failure to provide RTC to the applicant. The officers’ conduct following the additional charges was either deliberate or careless. Nonetheless it was egregious and I cannot conclude that the officers acted reasonably and in good faith.

[137] The s. 10(b) breach in this matter cannot be considered “technical” or “minor.” This matter involved a number of experienced HPS officers failing to comply with their obligations. Nothing could be more serious, nor have a greater impact, on Charter-protected interests.

[138] Further, there is evidence of negligence or carelessness regarding the failure to file the RTJ.

[139] Moreover, the unexplained rationale for the dynamic entry demonstrated a pattern of disregard of the applicant’s rights. Given the factual background and the information known to the police, I am not persuaded that there was some urgency to the situation based on officer safety concerns or the destruction of evidence. This is not a case like R. v. Omar 2018 ONCA 975, 369 C.C.C. (3d) 544, per Brown J.A. in dissent, (aff’d. 2019 SCC 32), where the officers were confronted with a difficult, intricate, real-time decision.

[140] The impact on the applicant’s Charter-protected interests was significant. The manner of search and obtaining of the evidence along with the s. 10(b) violation and failure to file the RTJ were, cumulatively, serious violations. My consideration of the second factor weighs in favour of exclusion.

Society’s Interest in the Adjudication of the Case:

[147] While I must be cautious not to place too much emphasis on this latter point, I am mindful that in Grant, at para. 84, the Supreme Court offered that the seriousness of the offence may be a neutral consideration as it has the potential to “cut both ways”. In this case, I conclude that society’s interests in the adjudication of the case on its merits are best served by not excluding evidence when its probative value is so strong. A consideration of this public interest factor militates in favour of admission of this evidence.

Overall Balancing:

[149] I accept that the community needs to have serious cases tried on their merits, especially where drug-related crimes are committed.

[150] However, as mentioned, the impact on the Charter-protected interests of the applicant was serious. The police conduct in this case did also demonstrate a deliberate or cavalier disregard or as it pertains to the manner of search, the new charge and change in jeopardy and in their failure to provide any s. 10(b) RTC; an absolute ignorance of well-established Charter rights.

[151] I adopt the comments made in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 77-78, and find they apply here:

[77] I can find little, if anything, that might be said to mitigate the police misconduct. This was not a situation in which the police conduct slipped barely over the constitutional line, or in which legal uncertainty could reasonably be said to have blurred that line. Finally, there is nothing by way of extenuating circumstances that might offer some excuse for the police disregard of the appellant’s constitutional rights.

[78] Courts, as representatives of the community, cannot be seen to condone the blatant disregard of the appellant’s rights that occurred in this case. The only way the court can effectively distance itself from that conduct is by excluding the evidentiary fruits of that conduct.

[152] I find that the actions of the police in this case would invite a negative impact on the public confidence in the administration of justice and the rule of law. The balancing of all of the s. 24(2) factors militate in favour of exclusion of the evidence.

[153] Finally, Ms. Schofield’s submissions regarding the exercise of my residual discretion to exclude the evidence under s. 24(1) of the Charter has some merit in this case. [i] However, as I have concluded that the evidence ought to be excluded pursuant to s. 24(2) of the Charter, I need not delve further into this alternative argument, or the entreaty for the imposition of a stay of proceedings under s. 24(1) of the Charter.

Conclusion:

[154] For all of the aforementioned reasons, I find that the applicant’s ss. 8, and 10(b) Charter rights were breached. Pursuant to s. 24(2) of the Charter, all the drugs and drug-related evidence seized from unit 2502 is to be excluded.

R v TA, 2024 ONSC 528

[January 24, 2024] Sexual Assault: Sexual Purpose of Touching [Gibson J.]

AUTHOR’S NOTE: Sexual purpose of the unwanted physical contact is an essential element of the offence of sexual assault. In this case, a historical allegation of inappropriate touching, the evidence left the court in doubt about this single element. The case also provides a good overview of general principles applicable to any case of sexual assault on a minor. Some physical impossibilities as well as the possibility that the same contact was either for a sexual or non-sexual purpose that was not distinguishable on the objective description of the incident led to an acquittal.

Overview

[1] T.A. is charged with: one count of sexual assault contrary to s.271 of the Criminal Code of Canada against R.T.; and one count of sexual interference contrary to s.151 of the Criminal Code against R.T. The offences are alleged to have occurred in Kitchener between June 30, 2020, and April 1, 2021.

[2] T.A., now 74, was the neighbour of R.T. The complainant R.T., now 13, was 10 years old at the relevant time period covered in the Indictment. R.T. was friends with T.A.’s children, and used to play with them in T.A.’s residence, in a nearby park, and at a nearby swimming pool.

[4] The Crown presented evidence from one witness, the complainant R.T., who gave her evidence by video link from outside the courtroom. Part of her evidence was comprised of her video recorded statements to police given on April 2 and 7, 2021, which she adopted during her testimony at this trial and which, pursuant to s. 715.1 of the Criminal Code, were incorporated into her evidence at this trial.

[5] The Defence called the accused person T.A.

[6] The evidence of the complainant R.T. may be succinctly summarized as follows. R.T. testified that T.A. “humped” her from behind by briefly pressing his penis against her “butt” while she was playing a game of hide and seek with his children at his residence; that while at the local swimming pool, he tried to put his hand inside her bathing suit bottom, and that he touched her vagina while in the deep end of the pool; and that, while playing with his children in the basement of his residence, he made her sit on his lap and tried to pull her on top of his penis while sitting in a chair.

[7] T.A. gave evidence and denied that he touched R.T. in the manner alleged, and adamantly insisted that there was never any sexual purpose in his touching of R.T. at any time.

Law

Credibility and Reliability

[18] Credibility is not synonymous with telling the truth, and the lack of credibility is not synonymous with lying. Many factors influence the court’s assessment of the credibility of the testimony of a witness. For example, a court will assess a witness’ opportunity to observe events, as well as a witness’ reasons to remember. Was there something specific that helped the witness remember the details of the event that he or she described? Were the events noteworthy, unusual and striking, or relatively unimportant and, therefore, understandably more difficult to recollect? Does a witness have any interest in the outcome of the trial; that is, a reason to favour the prosecution or the defence, or is the witness impartial?

[21] Minor discrepancies, which can and do innocently occur, do not necessarily mean that the testimony should be disregarded. However, a deliberate falsehood is an entirely different matter. It is always serious, and it may well taint a witness’ entire testimony.

[22] The Court is not required to accept the testimony of any witness except to the extent that it has impressed the court as credible. The Court may accept the evidence of a particular witness in total, in part, or not at all. In Clark v. The Queen, 2012 CMAC 3, Watt J.A. gave very clear guidance as to the governing principles in the assessment of credibility of witnesses:

First, witnesses are not “presumed to tell the truth.” A trier of fact must assess the evidence of each witness, in light of the totality of the evidence adduced at the proceedings, unaided by any presumption, except the presumption of innocence [of the accused person.]

Second, a trier of fact is under no obligation to accept the evidence of any witness simply because it is not contradicted by the testimony of another witness or other evidence. The trier of fact may rely on reason, common sense, and rationality to reject uncontradicted evidence. [A trier of fact may accept or reject, some, none or all of the evidence of any witness who testifies in the proceedings.]

[23] Credibility is not an all or nothing proposition. Nor does it follow from a finding that a witness is credible that his or her testimony is reliable. A finding that a witness is credible does not require a trier of fact to accept the witness’ testimony without qualification. Credibility is not co-extensive with proof.

[24] As Justice Watt indicated at para. 48 of Clark:

Testimony can raise veracity and accuracy concerns. Veracity concerns relate to a witness’ sincerity, his or her willingness to speak the truth as a witness believes it to be. In a word, credibility. Accuracy concerns have to do with the actual accuracy of the witness’ account. This is reliability. The testimony of a credible, in other words an honest witness, may nonetheless be unreliable.

[25] The concept of reasonable doubt applies to credibility.

[27] Credibility and reliability are different. Credibility has to do with a witness’s veracity or honesty. Reliability has to do with the accuracy of a witness’s testimony.

[28] Accuracy engages consideration of the witness’s ability to accurately observe, recall and recount events in issue.

[29] Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible or honest witness may still give unreliable evidence.

W.(D.) Assessment

[32] The principles in W.(D.) apply in cases where the accused gives evidence. However, the principles of W.(D.) will also apply in any case where a crucial issue turns on credibility: R. v. F.E.E., 2011 ONCA 783, per Watt J.A. at para. 104. The W.(D.) analysis applies not only to an accused’s testimony, but also to other exculpatory evidence that emerges during a trial that relates to a vital issue: R. v. B.D., 2011 ONCA 51, per Blair J.A. at paras. 113-114, and R. v. Cyr, 2012 ONCA 919, per Watt J.A. at para. 50.

[33] The guidance in W.(D.)provides as follows:

a. first, if I believe the evidence of the accused, then I must acquit;

b. second, if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit; and

c. third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[34] In R. v. J.H.S., 2008 SCC 30 at paragraph 12, the Supreme Court of Canada quoted approvingly the following passage from R v H.(C.W.) (1991) 68 C.C.C. (3d) 146 (BCCA) where Wood J.A. suggested the additional instruction:

I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.”

[37] I will now address several issues that may potentially arise in the trial of alleged sexual offences.

Sexual Offences Myth-Based Reasoning

[38] It must be acknowledged that trials do not take place in a historical, cultural or social vacuum. Before turning to a discussion of the specific elements of the offences with which T.A. is charged and the evidence that relates to those elements, one must adopt caution against approaching the evidence with unwarranted or stereotypical assumptions that may be holdovers from a past era, as to what is or is not sexual assault, what is or is not consent, what kind of person may or may not be the complainant of a sexual assault, what kind of person may or may not commit a sexual assault, or what a person who is being, or has been, sexually assaulted will or will not do or say.

[40] There is no typical victim or typical assailant or typical situation or typical reaction.

[42] In particular, the myth that complainants in sexual offence cases have a higher tendency than other complainants to fabricate allegations based on “ulterior motives” and are therefore less worthy of belief, is not supported by social science, the law, or judicial experience. It is a myth. There is no basis to believe that sexual offence complainants are more likely to fabricate allegations than complainants of any other type of crime. The Supreme Court of Canada has clearly stated that sexual assault complainants should not be treated as inherently suspect.

[44] It is a myth that failure to fight back means that no sexual assault occurred. Complainants know that there is no response on their part that will assure their safety.

[45] It is also a myth that failure to scream or call out means that no sexual assault or other sexual offence occurred or that the complainant consented. There is no “right” way to respond during a sexual assault. It would be stereotypical to assume that sexual assault victims tend to scream for help. Some will, others will not.

[46] It is also a myth to expect that a complainant will change her or his behaviour or take steps to avoid her or his abuser. The Supreme Court has clearly stated that the lack of avoidant behaviour on the part of a complainant is not relevant in a sexual assault trial. It would be an error to conclude that a complainant is less worthy of belief because she failed to avoid having contact with the accused. To do so would be to rely on the myths that a complainant will take steps to avoid her or his abuser or immediately tell someone what had occurred.

[47] As I have stated, there is no inflexible rule on how people who are the victims of trauma, like sexual assault, will behave. Some will make an immediate complaint, some will delay making disclosure of what happened to them, while some will never make disclosure. Some victims may disclose details incrementally, at different times. Some details may never be disclosed. Reasons for delay or incremental disclosure are many and may include embarrassment, fear, guilt or a lack of understanding and knowledge.

[48] In assessing the credibility of a complainant, the timing and fullness of the disclosure is simply one circumstance to consider in the factual mosaic of a particular case. Delayed or incremental disclosure, standing alone, should not give rise to an adverse inference against the credibility of the complainant.

[50] It remains impermissible, however, to reason that a complainant is telling the truth by the mere fact that she has pursued a complaint and shown willingness to undergo “the unpleasant rigours of a criminal trial.” To reason in this way would reverse the burden of proof and evince stereotype: R. v. JC, 2021 ONCA 131, at paras. 88-89.

[51] My purpose in articulating these concepts is not to support a particular conclusion but to caution myself against reaching conclusions based on common misconceptions. One must approach the evidence with an open mind and without preconceived ideas.

Motive of complainants to lie

[58] In this case, there is no onus on T.A. to prove that the complainant had a motive to lie.

[60] There is a distinction between the absence of evidence of a demonstrated motive to fabricate and affirmative proof of no motive to fabricate. The absence of evidence of a motive to fabricate must not be confused with the absence of such a motive. One must not conclude that complainants must be telling the truth because no motive to fabricate had been demonstrated. The absence of an established motive to fabricate is only one factor among many in assessing the complainant’s credibility.

[61] It is dangerous and impermissible to move from an apparent lack of motive to lie, to the conclusion that the complainant must be telling the truth. People may accuse others of committing a crime for reasons that may never be known, or for no reason at all.

[62] In R. v Gerrard, 2022 SCC 13, the Supreme Court of Canada has succinctly summarized the relevant factors:

Two of these factors warrant a few additional comments. Lack of evidence of a complainant’s motive to lie may be relevant in assessing credibility, particularly where the suggestion is raised by the defence (R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 10-11; R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 38 and 52). Absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, is a common-sense factor that suggests a witness may be more truthful because they do not have a reason to lie. That said, when considering this factor, trial judges must be alive to two risks: (1) the absence of evidence that a complainant has a motive to lie (i.e. there is no evidence either way) cannot be equated with evidence disproving a particular motive to lie (i.e. evidence establishing that the motive does not exist), as the latter requires evidence and is therefore a stronger indication of credibility — neither is conclusive in a credibility analysis; and (2) the burden of proof cannot be reversed by requiring the accused to demonstrate that the complainant has a motive to lie or explain why a complainant has made the allegations (R. v. Swain, 2021 BCCA 207, 406 C.C.C. (3d) 39, at paras. 31-33).

Lack of embellishment may also be relevant in assessing a complainant’s credibility and often arises in response to suggestions that the complainant has a motive to lie. But, unlike absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, lack of embellishment is not an indicator that a witness is more likely telling the truth because both truthful and dishonest accounts can be free of exaggeration or embellishment. Lack of embellishment cannot be used to bolster the complainant’s credibility — it simply does not weigh against it. It may, however, be considered as a factor in assessing whether or not the witness had a motive to lie.

Testimony of children

[63] At the time of the alleged commission of the offences against her, R.T. was 10. She is now 13. She promised to tell the truth when she gave her evidence. The evidence of children must be approached on a common-sense basis bearing in mind their mental development, understanding and ability to communicate. As the trier of fact, I must determine how much or little to believe of her evidence. Relevant factors in this regard include: her capacity to observe; her capacity to recollect; her capacity to understand questions and frame intelligent responses; and her moral responsibility, whether she understands the duty to tell the truth, and the difference between truth and falsehood.

Analysis

[65] I start with an assessment of the credibility of the complainant. I found that R.T. was generally a credible witness, who understood the difference between truth and falsehood, but there were numerous inconsistencies in her evidence which detracts from its reliability.

[66] For example, she testified that T.A. “humped” her from behind by pressing his penis against her buttocks while standing in a doorway in his residence. But, as she acknowledged, he was much taller than she was at the time. R.T. said she is now 5’4” tall, and was shorter at the time of the incidents. Moreover, she was crouched down while playing hide and seek. It is implausible in this circumstance that, while standing, he could have pressed his penis against her buttocks.

[67] The circumstances R.T. described when she says T.A. touched her in the swimming pool are equally consistent with touching for a non-sexual purpose, when he assisted her when she was out of her depth in the deep end of the pool, or while playing with the children.

[68] In this case, it is not necessary to discuss every essential element, when there is one whose assessment is dispositive in this case. One common element between both of the offences charged on the Indictment is that the touching must have been done for a sexual purpose.

[69] The accused person T.A. gave evidence, and denied that he ever touched R.T. for a sexual purpose. I am left with a reasonable doubt by his testimony. Consistent with the analytical approach prescribed in W.(D.), this alone must lead to an acquittal.

[70] Moreover, even apart from this, there is no evidence that T.A. ever said anything during the incidents of touching, or that he ever manifested any conduct that was clearly consistent with seeking sexual gratification. He was always clothed, as was she. He never asked to see her genitals. He never exposed himself to her. He never asked her to do anything to him. The sexual nature of the contact would not have been apparent to a reasonable observer. The incidents are plausibly at least possibly also susceptible to innocent explanation.

[71] The rigour of the standard of proof beyond a reasonable doubt of all the essential elements of the offence is our society’s bulwark against the potential for wrongful convictions, and must not be diluted.

[72] Taken altogether, viewing the evidence as a whole, I cannot find beyond a reasonable doubt that the touching of R.T. by T.A. at the door in his residence while she was engaged in a game of hide and seek, in the basement of his residence, or at the swimming pool, was done for a sexual purpose.

Conclusion

[75] The Court finds T.A. not guilty of Counts 1 and 2 on the Indictment.

R v Avadluk, 2024 NWTCA 2

[January 24, 2024] Dangerous Offenders: Sentences Can be Higher that Normal Sentence of Same Offence [Ritu Khullar CJ, Neil Starkey JA, and Kevin Feehan JA]

AUTHOR’S NOTE: It is seemingly counterintuitive that this case is found in the “Defence” Toolkit. However, the ability to ask for a higher sentence in a Dangerous Offender proceeding is a useful tool where it is necessary. This ability allows the Defence to ensure there is sufficient control over an offender before they have to be released into the community for a court to refrain from sentencing them to an indeterminate period of time. Indeterminate sentences are advertised by CSC to have a possibility of release. However, the chance of release is so infinitesimally small in reality that it should be ignored by counsel at all times. For all practical purposes an indeterminate sentence is a life sentence without the chance of parole. The chance of parole functions more as a control mechanism on offenders (keeping their hope alive) than any real promise of eventual release if rehabilitation is accomplished. News stories can be found online showing that even disabled Dangerous Offenders continue to be locked up even when they are bed-ridden. A determinate sentence, even if higher than normal, is always preferable to an indeterminate sentence which leaves any release possibility up to the parole board. 

[1] Mr Avadluk was found to be a dangerous offender and was sentenced to an indeterminate sentence: R v Avadluk, 2017 NWTSC 51 (Sentencing Decision). He appeals only the indeterminate sentence, not the dangerous offender designation. The appeal is granted for the reasons below.

I. Background Facts

[2] Mr Avadluk committed the predicate offence of sexual assault in 2012, and a jury convicted him in 2014….

[3] Mr Avadluk came to the court with 43 convictions from 1985 through 2012, which included a range of property offences, offences against the administration of justice, resisting arrest and assaulting a police officer. Most significantly, his record included eight violent crimes, punctuated by significant acts of physical and sexual violence against women often, but not exclusively, against women he knew or his intimate partners. Many of these assaults were described as prolonged and terrifying. The appellant frequently sought to minimize his actions, discredit his victims as jealous addicts and paint himself as the true victim.

[4] There were two expert witnesses at the sentencing hearing, Dr Woodside for the Crown and Dr Nesca for the appellant. They provided extensive evidence about the appellant’s past offending and his future prognosis. They both agreed that the appellant was at high risk to reoffend violently and a high to medium risk to reoffend sexually. The defence expert was more optimistic about the appellant’s prospects for rehabilitation. Specifically, he was more optimistic about the success of various intensive treatments that would be available in the penitentiary system and, after treatment, that the appellant could be managed in the community with appropriate supervision.

[5] The appellant is Inuit and at the time of sentencing was 44 years old. He grew up in a large family in a very small community in what is now Nunavut. His childhood was marked by poverty, neglect, physical and sexual abuse….

…. He may have Fetal Alcohol Spectrum Disorder, though it has not been diagnosed. While he did not complete high school, he has his journeyman certification in small engine repair. As an adult, he has supported himself in this line of work as well as construction, commercial fishing and carving…

[6] The appellant’s background was summarized at para 110 of the Sentencing Decision:

Residential school devastated his parents, particularly his mother. That filtered down and devastated Mr. Avadluk, wreaking havoc and chaos in his home, the place where he should have been safe and felt loved. When there was finally intervention, it did nothing to address his needs. Instead, it resulted in further trauma for him, in the form of sexual assault. He turned to substances for comfort and he started to engage in criminal conduct at a young age. He was in and out of prisons, his underlying needs, his addiction, his mental health problems, his anger issues, his own trauma, remaining unresolved. It is little wonder Mr Avadluk turned to solvent and alcohol abuse at a young age. It is little wonder he has spent much of his life incarcerated. And it is little wonder that he has now been designated a dangerous offender. The system has failed Noel Avadluk and in doing so, it has failed its victims. He now needs significant treatment and the public needs protection

II. Sentencing Decision

[8] Most of the Sentencing Decision addresses the appellant’s designation as a dangerous offender, which is not under appeal. In the sentencing part of the reasons, the sentencing judge held herself bound to impose an indeterminate sentence unless there was a reasonable expectation that the public could be adequately protected by the combination of a determinate custodial sentence and a long-term supervision order.

[9] Mr Avadluk’s counsel submitted there was a reasonable expectation that a custodial sentence sufficiently long to enable Mr Avadluk to receive high intensity sex offender treatment in prison, combined with a 10-year long term supervision order would adequately protect the public. That sentence combination would have Mr Avadluk released into the community at age 50 when, according to Dr Nesca, his risk of sexual recidivism would be significantly lower.

IV. Error in Approach to Imposing Determinate Sentence

[17] The sentencing judge’s discussion of Severight is brief:

Increasing the length of the sentence to accommodate the contingencies [of possible treatment] is not an option. If the court imposes a determinate sentence, whether or not it is followed by a supervision order, it must fall within the range the predicate offence would attract in an ordinary sentencing. R v Severight, 2014 ABCA 25. (emphasis added)

Sentencing Decision at para 103.

[18] In other words, a determinate custodial sentence to enable the appellant to get extended treatment in prison and have him released at age 50 was unavailable. It would require sentencing the appellant to a further six years in custody (in addition to several years’ pre-sentence custody), which would exceed a fit sentence for the sexual assault under ordinary sentencing principles. The sentencing judge held that a determinate sentence for a predicate offence under ss 753(4)(b) or (c) cannot be longer than would be justified in a “normal” sentencing proceeding.

[19] The sentencing judge did not have the benefit of the Supreme Court of Canada decision in R v Boutilier, 2017 SCC 64, which interpreted the dangerous offender provisions of the Criminal Code. The following principles from Boutilier (at paras 53-65, 69, 76) are relevant in this appeal.

1. The dangerous offender provisions in Part 24 of the Criminal Code are sentencing provisions.

2. The general sentencing principles set out in Part 23 of the Criminal Code also apply to the sentencing of dangerous offenders.

3. The sentencing judge in a dangerous offender application must still consider moral culpability, the seriousness of the offence, mitigating factors, and principles developed for Indigenous offenders in deciding whether a sentence less than an indeterminate sentence would sufficiently protect the public.

4. The general purpose of the dangerous offender provisions in Part 24 is the prevention of future harm to the public. This objective has “enhanced status” in dangerous offender proceedings compared with other sentencing objectives.

5. There is no presumption that a dangerous offender will receive an indeterminate sentence.

6. The sentencing judge must impose the least restrictive sentence that will adequately protect the public from the threat of violent reoffending. An indeterminate sentence is justified only if it is the least restrictive means to protect the public.

[20] In light of these principles, the sentencing judge erred in finding that she could not impose the determinate sentence proposed by Mr Avadluk.

[21] The sentencing judge was not restricted to imposing a sentence for the predicate offence that would be justified by the application of ordinary sentencing principles. While ordinary sentencing principles (under Part 23) apply in dangerous offender proceedings, so do the distinctive principles of the dangerous offender regime (under Part 24). The overall objective of that regime is the protection of the public, which has “enhanced status”: Boutilier at para 56. If a longer than normal determinate sentence (with or without a long-term supervision order) can adequately protect the public, such as by facilitating rehabilitative treatment, the sentencing judge may impose it. Boutilier has overtaken Severight on this point.

[22] The Ontario Court of Appeal reached the same conclusion in R v Spilman, 2018 ONCA 551. Apart from the point just mentioned about the “enhanced status” of public protection, the Court gave various reasons why the range of determinate sentences under ss 753(4)(b) or (c) is not limited to what would be fit under ordinary sentencing principles.

1. In appropriate circumstances, a sentencing judge may impose an indeterminate sentence in dangerous offender proceedings, even though it is not an available option under ordinary sentencing principles. If the application of sentencing principles in dangerous offender proceedings can justify an indeterminate sentence, it can also justify a less onerous, determinate sentence that is longer than would be fit in ordinary sentencing proceedings.

2. The language of ss 753(4)(b) and (c) does not require determinate sentences for predicate offences to match the sentences that would be justified by ordinary sentencing principles.

3. The requirement under s 753(4)(b) that the custodial component of a composite sentence (which also has a long-term supervision order component) must be at least two years long is itself a departure from ordinary sentencing principles.

4. In dangerous offender proceedings, the offender is being sentenced not just for the predicate offence but also because he is a dangerous offender, so the “focal point” of those proceedings is different from ordinary sentencing proceedings.

Spilman at paras 33-37

[24] In conclusion, Boutilier establishes that a sentencing judge may impose a determinate sentence for the predicate offence (under ss 753(4)(b) or (c)) that is longer than would be justified by the application of ordinary sentencing principles if it is necessary to protect the public from future violent reoffending. Indeed, if there is a determinate sentence that would adequately protect the public, the sentencing judge must impose it rather than an indeterminate sentence. This approach was expressly endorsed in Spilman and implicitly endorsed in R v Cosman, 2018 ABCA 388. However, there is an important limit on the length of a determinate sentence under ss 753(4)(b) or (c) – it cannot exceed any maximum sentence for the predicate offence set out in the Criminal Code: R v Durocher, 2023 NWTCA 4 at para 59; Spilman at para 52.

V. Remedy

VI. The New Evidence

[31] The new evidence comprises the following documents:

 A report on Mr Avadluk’s participation in the Inuit Integrated Correctional Program Primer in 2019.

 A report on his participation in the Inuit Integrated Moderate Intensity Sex Offender Program between 2020 and 2023.

 A Correctional Services of Canada report dated February 2022 approving Mr Avadluk’s transfer from Beaver Creak Institution to Bowden Institution.

 Records of his attendance at Alcoholics Anonymous meetings between 2019 and 2023.

 A report on Mr Avadluk’s participation in a wood carving group at Bowden Institution.

A. Analysis

[46] While the new evidence indicates some progress, it does not address Mr Avadluk’s risk of reoffending. It does not help this Court to answer the required question under s 753(4.1) of the Criminal Code: is there a reasonable expectation that the sentence combination proposed by Mr Avadluk will adequately protect the public?

B. Disposition

[49] To substitute a 10-year custodial sentence followed by a 10 year long-term supervision order, the Court must be satisfied that there is a reasonable expectation that the sentence would adequately protect the public from future violent offending.

[50] The record, supplemented by the new evidence, does not enable the Court to make that determination. A fuller record, including up-to-date expert psychological evidence and risk assessments, is required. The appropriate remedy is to return the sentencing portion of the dangerous offender proceeding to the trial court for a fresh decision.

[52] There is no difficulty in remitting the sentence to the trial court, but not the dangerous offender designation. The language of s 759(3)(a)(ii) imposes no restrictions on the matters that can be remitted for rehearing. It says that the court of appeal “(a) may allow the appeal and … (ii) order a new hearing, with any directions that the court considers appropriate”. Recently, the Alberta Court of Appeal ordered a rehearing on sentence only in R v Runions, 2023 ABCA 29. We do the same here.

[53] The appeal is granted. The question of sentence is remitted to the trial court for a determination. For greater clarity, the original sentencing judge is not seized with this matter. Pending the new sentencing hearing, we direct that the appellant will remain in custody at Bowden Institution to facilitate his access to rehabilitative programming.

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