The Defence Toolkit – February 27, 2021

This week’s top three summaries: R v Buchanan, 2021 BCSC 51: #provocation & drug #addiction, R v Huntley, 2021 BCSC 149: s.9 #pretext jaywalking, and R v Kush, 2021 BCSC 175: W(R)/B(G) and #teenagers

R v Buchanan, 2021 BCSC 51

[January 12, 2021] Provocation/Manslaughter through Threats of Violence and Withholding Purchased Drugs from Addict [Reasons by Baird J.]

AUTHOR’S NOTE: Provocation to reduce murder to manslaughter requires an act that would deprive a reasonable person in the position of the accused of self control. Here, Justice Baird recognised the impact of a life of subservience and drug addiction as part of modified-objective assessment of that portion of the test. In other words if the reasonable person was living a life of subservience and drug addiction would they have been deprived of self-control in these circumstances? The result was a positive manslaughter verdict for a person that offered alternative defences that were not persuasive. The case also presents a good reminder that the Court has the obligation to consider all defences that arise on the evidence before them, even if they are not specifically advanced by the accused. 

Facts

[1] The accused, John Albert Buchanan, is charged with the second degree murder of Richard Sitar on September 11, 2017. There is no dispute that Mr. Sitar’s life was unlawfully, abruptly and violently terminated on that date between roughly 6:10 and 7:10 p.m., or that the cause of his death was blunt force trauma inflicted to his head.

[3] Richard Sitar was a local drug dealer and, by all accounts, a prolific thief and property fence. He lived in an apartment building at 275 Nicol Street in a rough part of Nanaimo. He ran a brisk trade in narcotics and stolen property from this apartment. He also had some skills as an auto mechanic. He had a side-line repairing vehicles for cash.

[4] The accused, meanwhile, is a heroin and methamphetamine addict and a small time burglar and thief. At the material time he was living rough in a makeshift shanty in the back yard of a residence at 150 Nicol Street, a block from Mr. Sitar’s apartment building. The accused and his girlfriend, a person identified by various witnesses as Katherine White, were also known to camp out in the parking lot of the long-shuttered Balmoral Hotel, which is directly across the street from 150 Nicol Street.

[5] On all of the evidence, I find as a fact that the accused had a dysfunctional and morbidly dependent relationship with Mr. Sitar. He bought his drugs primarily from Mr. Sitar. He supplied Mr. Sitar with stolen property for cash or to barter for drugs. He was in and out of Mr. Sitar’s apartment on a regular basis. Sometimes they got along; but sometimes things between them became fractious and violent. I find that Mr. Sitar was the alpha dog; he always had the upper hand. The accused was his servant or client, and he was invariably on the receiving end of physical and verbal abuse from Mr. Sitar.

[6] Their interpersonal history included an incident only a couple of weeks before Mr. Sitar’s death in which he attacked the accused with pepper spray in the parking lot of a local McDonald’s restaurant. There is no doubt that this incident occurred; it was captured by the restaurant’s security camera and the video was played in court. The assault appeared to be nasty, gratuitous, excessive and totally unprovoked. I received evidence from other sources confirming that Mr. Sitar often behaved abusively and high-handedly towards his dependant and vulnerable clients and suppliers.

[7] On all of the evidence, the strong impression emerges that Mr. Sitar was an unpleasant, selfish and rather profoundly antisocial person. He was obviously an unremitting and chronic nuisance to his neighbours, playing satanic heavy metal music at ear splitting volumes, receiving street people at his apartment during all hours of the day and night, propping open the side emergency exit so that they could access the building at will, and leaving his balcony door open so that his customers could get his attention by bellowing up to his second floor balcony from the street. He took up space in the rear parking lot fixing cars.

[14] Eventually everyone left the apartment and headed down to the rear parking lot. Mr. Farmer and Mr. Collins confirmed in their testimony that Mr. Sitar locked the door to his apartment when he left. The time was now approximately 3:30 p.m. Mr. Heslop stayed for only a few more minutes. Before he left, he saw the accused standing by a commercial dumpster at the rear of the building. Mr. Collins and Mr. Farmer confirmed this. According to them, the accused and Mr. Sitar got into a screaming match. Mr. Sitar ended it by saying “Get out of my face; I’ll deal with you later.”

[15] There is no dispute, really, about the timing of things. Mr. Sitar remained in the rear parking lot working on the car until around 6:00 p.m. Mr. Farmer was with him until around 4:30 or 5:00 p.m., when he left to give another resident of the building a ride somewhere. A person named Ray Ahlstrom also popped by for a while, likely after Mr. Farmer had left. Mr. Sitar’s downstairs neighbour, Ms. Bonnie Sova, arrived home from work at around 5:30 p.m. and saw Mr. Sitar working on the car. In fact he was doing the job in her designated parking spot. She had to park in a visitor’s space. When she returned to the parking lot at around 6:00 p.m., Mr. Sitar was gone and his tools were nowhere to be seen.

Analysis

Identification

[98] On all of the evidence, I have no doubt at all the accused killed Richard Sitar. In summary, Mr. Sitar left his apartment for the rear parking lot at around 3:30 p.m. on the material date. The apartment was empty when he left. There is no evidence whatsoever to suggest that anyone entered it or was in it before Mr. Sitar returned at just after 6:10 p.m. Only 12 minutes later the accused entered the apartment. No one else was with him.

[99] Amanda Karaim was at the door of the apartment less than 17 minutes later. She tried to open it but it was locked. She told me that Mr. Sitar did not customarily lock the door when he was at home. She knocked but no one answered. She could hear only a rustling inside. I think it likely that the accused’s assault upon Mr. Sitar had already occurred. If not, Mr. Sitar would have responded to Ms. Karaim. And why did the accused not answer the door if he had nothing to hide? Why not let Ms. Karaim in to look after her intoxicated husband?

[100] Instead, the accused remained in the apartment, taking care, it seems, to make no noise. After three minutes or so, Ms. Karaim left, thinking no one was home. I infer that, as soon as the accused was sure that she was gone, he emerged from the apartment and darted down the rear staircase. He was carrying bags full of items taken from the apartment. This included property stolen from Mr. Sitar, notably the gold watch, and from Ms. Karaim, notably the jewelry and other items found in the distinctive black backpack later found in his shanty.

[101] I think it highly unlikely, in all the circumstances, especially the lopsided power dynamic between the two of them, that the accused would have dared to commit these thefts if Mr. Sitar were not already dead. I would emphasise, as well, that the accused abandoned his bicycle, in my experience a precious item for a street person, at the front entrance of the building, fortifying my conclusion that his rapid flight from the building was precipitous, unexpected, and possibly motivated by a desire to avoid security cameras.

[113] On top of all this, of course, is the accused’s confession to X.X., which I have been encouraged to find was entirely made up. For the following reasons, I am not persuaded by the arguments made in favour of doing this.

[117] X.X. also denied suggestions that he had cribbed his evidence from court papers that may have found their way into the cell that he shared with the accused, and I accept his denials, especially in light of the absence of persuasive evidence to suggest that any such thing could have happened. Most importantly, however, I find that X.X. gave the police information that he could only have got directly from the accused – information which the police did not have before X.X. provided it, and which the accused himself confirmed in his final statement to Sgt. Graves including:

• that the accused went to Mr. Sitar’s place to collect drugs that he had paid for earlier;
• that Mr. Sitar had consumed all of the drugs;
• that Mr. Sitar was highly intoxicated and “on the nod”;
• that Mr. Sitar threatened to kill the accused’s girlfriend if he did not steal back the motorbike recently seized by police and returned to its owner; and
• that the accused stole property from the apartment other than the watch.

[118] This element of corroboration is, in my view, determinative of the issue of X.X.’s credibility and reliability. I have no reason to reject his evidence, and every good reason to find it independent and reliable. More than this, what X.X. testified to makes perfect logical sense. What the accused told X.X. about how and why he killed Mr. Sitar fits perfectly with all the other known facts, including, especially, the history of violence and animosity between the two men, the accused’s dependency on Mr. Sitar for his drug supply, and a natural alarm that his girlfriend was threatened with death and an inclination to protect her from harm.

Provocation

[125] Sections 232(1) and (2) of the Criminal Code, as severed in R. v. Simard, 2019 BCSC 531, leave to appeal ref’d [2019] S.C.C.A. No. 201, provide as follows:

232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

(2) Conduct of the victim that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.

[126] Provocation is a partial defence exclusive to homicide which reduces the conviction from murder to manslaughter. There is both an objective and a subjective element to provocation. Once it is established that a wrongful act or insult was sufficient to deprive an ordinary person of the power of self-control, the inquiry turns to a consideration of the subjective element of the defence, which is whether the accused acted in response to provocation, and did so on the sudden before there was time for his passion to cool: R. v. Tran, 2010 SCC 58.

[127] The threshold for the legitimate consideration of this partial defence, as Crown counsel conceded in submissions, is readily met. I must be satisfied that there is some evidence to suggest (a) that a particular wrongful act or insult committed by Mr. Sitar towards the accused would have caused an ordinary person to be deprived of self-control (the objective element) and (b) that the accused was actually deprived of his self-control by that act or insult (the subjective element): R. v. Thibert, [1996] 1. S.C.R. 37 at para. 6. Where this threshold is crossed, the Crown must prove beyond a reasonable doubt that provocation does not apply.

[128] In my view, there is sufficient evidence in the record of this trial to give an air of reality to this partial defence, even though the accused did not raise it himself. Of signal importance, firstly, I find as a fact that the accused had no violence on his mind when he entered Mr. Sitar’s apartment at 6:22:30 p.m. on the date in question. Instead, he was there only to collect his pre-paid supply of drugs, probably to sell or barter the small spherical audio speaker that was under his arm when he entered, and to pick up some laundry.

[129] Secondly, I have already concluded that, by the time Amanda Karaim arrived at the apartment door a mere 17 minutes later, the accused’s attack on Mr. Sitar was already complete. I infer, therefore, that there was a rapid escalation to unexpected, unplanned and extreme violence more or less as soon as the accused set foot in the apartment. Something happened almost immediately to transform a routine visit into an instance of culpable homicide. In my view, there is a logical explanation for this that arises from the Crown’s evidence, notably in the accused’s confession to X.X. as corroborated in his final interview with Cst. Graves. It is not a matter of reasonable hypothetical possibilities, much less of speculation.

[130] I would emphasise, particularly, the established history of violence between Mr. Sitar and the accused, with the accused invariably at the receiving end; what I would characterise as the accused’s subservient, dependent and frankly degrading role in their relationship; the fact that the accused had paid in advance for drugs that he expected to collect only to realise, upon his arrival, that Mr. Sitar had selfishly taken them himself; that in addition to the upset caused by this dashed expectation, no small matter for an addict, Mr. Sitar became verbally abusive; that he told the accused to recommit the theft of the motorcycle recently seized by police; and that he threatened to kill the accused’s girlfriend if he failed to do it.

[131] That the accused suddenly and rapidly lost control of his emotions as a result of Mr. Sitar’s wrongful acts and insults cannot, in my view, be doubted. His appalling act of violence is worthy of rebuke and punishment, no doubt, and the elements of second degree murder have been established, but the question remains whether, due to Mr. Sitar’s provocation, the accused’s crime is less blameworthy than to merit a sentence of life imprisonment: R. v. Manchuk, 1937 CanLII 11 (SCC), [1938] S.C.R. 18. Provocation provides an exemption from a murder verdict only on this basis. It is not an excuse or justification. It does not negate mens rea. It is a matter of mitigation, not exculpation.

[132] In R v. Tran, 2010 SCC 58 at para. 22 our highest court stated:

Not all instances of loss of self-control will be excused. Rather, the requisite elements of the defence, taken together, make clear that the accused must have a justifiable sense of being wronged. This does not mean, and in no way should be taken as suggesting, that the victim is to be blamed for the accused’s act, nor that he or she deserved the consequences of the provocation. Nor does it mean that the law sanctions the accused’s conduct. Instead, the law recognizes that, as a result of human frailties, the accused reacted inappropriately and disproportionately, but understandably to a sufficiently serious wrongful act or insult.

[133] Thus, an accused cannot escape a murder conviction on the basis of flaws or idiosyncrasies of temperament. The law permits this measure of pity and restraint to be exercised only towards those who transgress civilised norms of behaviour in the heat of the moment, irrationally, impulsively and illegally, but in circumstances of justifiable or understandable upset or grievance.

Objective Element

[134] The first question to ask is whether Mr. Sitar’s conduct towards the accused constituted a wrongful act or insult that was sufficient to deprive an ordinary person of the power of self-control. In the context of s. 232(2), the word “conduct” clearly includes behaviour where words are unaccompanied by physical actions: Simard at para. 74.

[136] That said, the objective element must be applied in a “contextual manner”: R v. Cairney, 2013 SCC 55 at para. 38, meaning that, when measuring the impact of a sudden provocation, the ordinary person must be taken to be of the same general age, sex and background as the accused, and must share with the accused such other factors as would give the wrongful act or insult in question a special significance. The history and background of the relationship between the victim and the accused is relevant on this stage of the inquiry: Thibert at paras. 15-19.

[137] In the present case, I find without difficulty that the ordinary person in the accused’s circumstances, an ordinary person, that is, of the accused’s same station and lifestyle, and subjected to similar pressures and privations, would have been deprived of self-control as a result of Mr. Sitar’s conduct. I would re-emphasise the morbid relationship of subservience and dependence, the history of violent abuse with the accused invariably on the receiving end, Mr. Sitar’s failure to come through with the drugs that the accused had bought and paid from scarce resources, and Mr. Sitar’s threats to shoot the accused’s girlfriend while attempting to coerce him to steal a motorbike.

[138] I am not required to conclude that the ordinary person facing identical external pressures would have reacted in precisely the same way as the accused. I do not have to be persuaded that such a person would be incited to murder. It is sufficient for me to be satisfied that the ordinary person would have been deprived of self-control as a result of Mr. Sitar’s conduct: R v. Carpenter 1993 CanLII 8591 (ON CA), [1993] O.J. No. 1834 (C.A.) at para. 23. The totality of the evidence, for the reasons stated, permits me to cross this threshold easily, and I will move on to the subjective element.

Subjective Element

[139] Under this heading, the question is whether the accused did, in fact, lose self-control in response to Mr. Sitar’s conduct. All of the accused’s subjective characteristics can be considered in evaluating this question. In Tran at para. 37 the Court stated:

The inquiry into whether the accused was in fact acting in response to the provocation focuses on the accused’s subjective perceptions of the circumstances, including what the accused believed, intended or knew. In other words, the accused must have killed because he was provoked and not because the provocation existed.

[141] To repeat, I know that the accused did not go to Mr. Sitar’s house with violence on his mind. He went there to do a little business, to retrieve his personal property, and to collect narcotic drugs that he had already paid for. To me, that the accused should have lost control of his emotions when he found out that Mr. Sitar consumed his drugs is entirely understandable and justifiable. As previously mentioned, $80 was a lot of money for the accused to have pulled together, and here Mr. Sitar had selfishly smoked it all away.

[142] I think it likely, as well, that the accused was in need of drugs and was severely alarmed and upset about not getting any. The dashed expectation of an immediate fix, especially one that has been bought and paid for, is a provocative thing for a drug addict. In the dissenting reasons of R v. Sheridan, [1990] A.W.L.D. 334 (C.A.) at para. 26, adopted by the Supreme Court of Canada at 1991 CanLII 65 (SCC), [1991] 2 S.C.R. 205, the fact that the accused, a cocaine addict, was irritable and anxious at the time was taken into account in assessing the subjective element of the test.

[143] Add to this Mr. Sitar’s threats to kill the accused’s girlfriend while brandishing a gun, his bully-ragging the accused about recommitting the theft of the bike seized by the police, along with memories of the recent pepper spraying incident and other acts of violence and abuse committed against him, and it is really quite easy to understand why the situation combusted. As I have already said, the accused became visibly emotional, distressed and agitated discussing these factors with Cst. Graves even two and a half years after the incident. He started weeping in court as I discussed them with counsel. I find that their emotional impact on his mind and emotions continues to be very strong to this day.

Conclusion

[144] For all of these reasons, I find that the accused murdered Mr. Sitar, but did so by means of violence impulsively committed on the spur of the moment in response to a sudden and unexpected provocation before his passions had time to cool. In my view, to use the language in Tran, the accused reacted inappropriately and disproportionately, but understandably, to a sufficiently serious wrongful act or insult from Mr. Sitar.

[145] It follows that I have a reasonable doubt in my mind that the accused is guilty of second degree murder on the basis of the partial defence of provocation. On authority of s. 232(1) of the Criminal Code I hereby find the accused not guilty of second degree murder, but guilty of manslaughter.

R v Huntley, 2021 BCSC 149

[January 6, 2021] Charter s.9 – Pretext Jaywalking Stop [Mr. Justice Thompson]

AUTHOR’S NOTE: Often, s.9 pretext stop cases are about roadside detention of motorists.  The powers of road safety statutes allow for a multitude of reasons for police to interfere with the freedoms of the travelling public. This case provides an example of a pretext stop conducted on the basis of jaywalking and is a powerful reminder that just because a police officer can enforce a law, doesn’t mean a court will believe that’s what they were doing in all the circumstances.

As a reminder of who this jaywalking pretext stop was targeting, it appears during the proceedings the accused started to fall asleep. While humorous because the trial judge was heading in the direction of an acquittal, it is also a stark reminder that some of the people targeted by this form of enforcement may find a courtroom to be the safest place they have been in to rest.  

Facts

[1] THE COURT: Mr. Huntley is charged with possession of heroin, fentanyl, and cocaine for the purpose of trafficking. This was a downtown Victoria street arrest. A search incident to the arrest turned up the controlled substances that are the subject of the charges.

[2] Constable Ewington is a Victoria City Police officer. He was on foot patrol. He observed what he suspected to be a hand-to-hand drug transaction. He and his partner of the day, Constable Tremblay, followed one of the persons who engaged in this behaviour (later identified as Mr. Huntley) for two or three blocks. The police officers then stopped Mr. Huntley for jaywalking.

[3] During this detention, Cst. Ewington testified that he observed part of a cylindrical tube in Mr. Huntley’s rear pocket, and concluded that it was pepper spray. He arrested Mr. Huntley for possession of a weapon. During the search conducted incident to the weapon arrest, the tube was examined. It was, in fact, an M&M candy container taped up. The controlled substances were in this container. Mr. Huntley was then arrested for possession of controlled substances. He was also issued a ticket for disobeying a pedestrian control signal under s. 132(3) of the Motor Vehicle Act.

Arguments

[4] Counsel for Mr. Huntley filed a Charter notice. Mr. Huntley argues that his detention for disobeying a pedestrian control signal was a ruse in furtherance of a drug investigation. He argues that his detention was unlawful and the searches that occurred during his detention were unreasonable. He contends that the police infringed his rights under ss. 7, 8, and 9 of the Charter. If an infringement is found, Mr. Huntley will apply under s. 24(2) to exclude from evidence the items seized during his detention.

[5] Mr. Halston, during argument for the Crown, ably and concisely summarized the law applicable to this type of case. If a detention has more than one real purpose, multiple purposes may coexist without infringing s. 9 of the Charter: R. v. Kaddoura, 2009 BCCA 113 at paras. 23-24; R. v. Madill, 2005 BCSC 1564 at para. 26. On the other hand, it is settled that the police cannot employ a lawful aim as a pretext to perpetuate an unlawful aim: R. v. Nolet, 2010 SCC 24 at para. 36. See also R. v. Dudhi, 2019 ONCA 665 at para. 91. The police cannot misuse their enforcement powers under the Motor Vehicle Act in furtherance of a criminal investigation: R. v. Woody, 2018 BCSC 2275 at para. 40.

Analysis

[6] The issue in this case comes down to one of fact. What was in Cst. Ewington’s mind when he first detained Mr. Huntley? For the reasons that follow, I conclude that what Cst. Ewington had in mind was using the jaywalking infraction as a pretext to detain Mr. Huntley so as to further the drug investigation. Contrary to Cst. Ewington’s evidence, I find that this was the sole purpose of the detention.

[8] Their shift on 1 April 2019 started at 10:00 a.m. They were in uniform, assigned to patrol the area around 900 block Pandora Avenue in downtown Victoria. There is a homeless shelter and a safe injection site on that block. It is an area where drug offences are frequently observed. At about 11:00 a.m., the two police officers were side by side as they approached the gated courtyard area outside the homeless shelter and there were about 30 or 40 people congregated in that area. Mr. Huntley was in one group.

[9] As the police officers entered the courtyard, Cst. Ewington testified he saw a suspicious hand contact between Mr. Huntley and another man. Although he did not see any items passed, the hands moving from pocket to contact, at this location notorious for such transactions, caused Cst. Ewington to infer that a drug transactionmay have taken place. Neither participant in this hand-to-hand contact were known to Cst. Ewington. Cst. Tremblay did not see what Cst. Ewington described.

[10] Someone in the courtyard said, “Six up,” a phrase warning others that police were nearby. Mr. Huntley promptly left the courtyard. The two police — Mr. Huntley, you might want to stay awake for this.

[11] THE ACCUSED: I was listening.

[12] THE COURT: The two police officers had a brief conversation. Cst. Tremblay told Cst. Ewington that the person who Mr. Huntley was in contact with was Dustin McPhail. Cst. Tremblay told Cst. Ewington that he knew Mr. McPhail as a person involved in the drug trade. Cst. Tremblay testified, and I accept, that this was a “quick little conversation” that “came to a determination to follow Mr. Huntley [i.e. the person who was later identified as Mr. Huntley] and see what happens.” Cst. Tremblay perceived that Cst. Ewington’s plan was to catch up to Mr. Huntley and stop him.

[13] Cst. Ewington testified that while at 919 Pandora Avenue he had formed the grounds and the intention to arrest Mr. Huntley. He testified that it was prudent for safety reasons to let Mr. Huntley separate himself from the hundred or so people hanging around in the courtyard and outside of that address before conducting the arrest. I accept that this plan to avoid an arrest at that location would be very sensible, but, for reasons that I will come to, I do not accept Cst. Ewington’s evidence that he had formed grounds or the intention to arrest Mr. Huntley at that point in time.

[17] The police officers saw Mr. Huntley cross Johnson Street, in the crosswalk. Johnson Street is at the end of that southbound block on Blanshard Street. I accept Cst. Tremblay’s evidence that Mr. Huntley crossed after the pedestrian signal had turned from “Walk” to an indication not to walk. The numbers were counting down to the time when the light for the north-south traffic on Blanshard Street would turn amber.

[18] On the basis of Cst. Tremblay’s evidence I find that Cst. Ewington then said to Cst. Tremblay, “Okay, let’s stop him now.” Cst. Tremblay testified that it was his impression that they were going to arrest Mr. Huntley for what Cst. Ewington had observed back at 919 Pandora Avenue. I pause to say that it is what was in Cst. Ewington’s mind that matters, not what Cst. Tremblay might have assumed that Cst. Ewington planned.

[19] The police officers quickened their pace to a light jog to catch up to Mr. Huntley, and Cst. Ewington said to Mr. Huntley, “Hey, it’s Victoria Police, just hang out there for a sec.” Once Mr. Huntley stopped, and this was partway down the next block on Blanshard Street heading southbound toward Yates Street, Cst. Ewington said to Mr. Huntley, “Hey, you just jaywalked — that’s the reason we’re stopping you right now.” Cst. Ewington asked Mr. Huntley for identification and the events I recounted earlier in the introduction to these reasons unfolded from there.

[20] As I said a moment ago, it is Cst. Ewington’s intention as he effected the detention that matters. He was taking the lead throughout, and Cst. Tremblay, as he testified, was taking his cues from Cst. Ewington. My assessment of the evidence, considered in the round, is that Cst. Ewington had not decided to arrest for a CDSA offence when the police officers began following Mr. Huntley. I think Cst. Ewington was suspicious, but had not — contrary to his evidence — concluded while at 919 Pandora Avenue that Mr. Huntley was arrestable. As a police officer with some significant drug investigation experience, I think Cst. Ewington knew that his observations at 919 Pandora Avenue were thin and arguably insufficient grounds for a CDSA arrest. While he saw the suspicious conduct at a location with frequent drug activity, and Cst. Ewington was told that Mr. McPhail was known to have some involvement in the drug trade, it was a single hand-to-hand observation with no items seen. I conclude that Cst. Ewington made the sensible decision to follow Mr. Huntley and to observe him. I think he also had in mind stopping Mr. Huntley to see if further evidence might be obtained.

[21] I come to this conclusion after considering the surrounding probabilities. I begin with the absence of reference in Cst. Ewington’s report to Crown Counsel to a decision to arrest being made while Cst. Ewington was at 919 Pandora Avenue. The narrative in this report authored by Cst. Ewington gives no indication of this early subjective formation of grounds to arrest.

[22] My conclusion is also consistent with the actions of Cst. Ewington taken with Cst. Tremblay in his wake. They followed Mr. Huntley for a considerable distance without getting too close. Cst. Tremblay’s evidence is that they were still a quarterblock behind Mr. Huntley when he jaywalked. During this walk, the police officers were following and observing, but taking no steps to arrest Mr. Huntley despite soon being well away from the crowd in the 900 block of Pandora Avenue. I am satisfied that the reason no steps were taken to arrest was because Cst. Ewington had not formed the intention to arrest while at 919 Pandora Avenue, or since they had left 919 Pandora Avenue. They had seen nothing during the walk that had added anything to the evidence against Mr. Huntley.

[23] My conclusion is also consistent with Cst. Tremblay’s evidence that the two officers had a “quick little conversation” and “came to a determination to follow Mr. Huntley and see what happens.” The notion of “see[ing] what happens” captures the essence of what Cst. Ewington’s intentions were — as opposed to a settled intention to pursue and arrest Mr. Huntley.

[24] I conclude that Cst. Ewington’s evidence is an inaccurate reconstruction of what was in his mind during the time from when Mr. Huntley came to his attention to the time that Cst. Ewington saw what he thought was a canister of pepper spray. I find that Cst. Ewington’s decision to stop Mr. Huntley for crossing Johnson Street when the pedestrian countdown had already begun was reflected in what he said to Cst. Tremblay: “Okay, let’s stop him now.” This stop was a pretext to try to gather more evidence in the midst of a CDSA investigation.

[25] This was not a dual-purpose stop like occurred in the Kaddoura case. I find that there was only one real reason for stopping Mr. Huntley. The purpose of the stop was to attempt to secure further evidence in support of the CDSA charge. In making this finding, I appreciate that Cst. Ewington made reference to a “dual purpose” during cross-examination, but I find that this was a reconstruction. Notably, this is not reflected by what he said in his report to Crown Counsel where he asserts (contrary to my finding) that the reason for the detention was an observed Motor Vehicle Act infraction.

[26] I do not accept Cst. Ewington’s evidence that grounds were formed while at 919 Pandora Avenue and that one of the reasons for stopping Mr. Huntley was to arrest him for a CDSA offence. I appreciate that this is what Cst. Tremblay may have assumed would happen, but I find that the real reason for the stop was to “see what happens” during a pretext stop. If one of the reasons for stopping Mr. Huntley was, in fact, to arrest him for a CDSA offence, I think it highly likely that a drug investigator with some experience like Cst. Ewington would have advised Mr. Huntley immediately of the reason for his arrest as Cst. Ewington surely knew he was obliged to do under s. 10(a) of the Charter.

[27] In conclusion, the jaywalking stop was a pretext. In the event, it was a productive ruse that resulted in the gathering of critical evidence in the drug investigation. There is no doubt that the jaywalking stop was a detention, and it was an unlawful detention because of the misuse of a lawful power as a pretext to further the criminal investigation. The detention was therefore arbitrary and an infringement of s. 9 of the Charter. It follows that searches conducted subsequent to the arbitrary detention were unreasonable and infringed s. 8 of the Charter.

R v Kush, 2021 BCSC 175

[February 27, 2021] Young Witness Evidence – Teenagers [Mr. Justice Schultes]

AUTHOR’S NOTE: Case law, since the early 1990s cases of W(R) and B(G) has be very permissive with the evidence of young children. In questions of reliability, inconsistencies about time and place of occurrences are routinely excused by the courts.  However, there is no firm cut-off between young children and adolescents or teenagers in terms of what test might apply to them. In this decision, the Justice sitting on appeal over a summary conviction matter found that the judge erred by using the young child approach of W(R) and B(G) to the evidence of a 16-year-old testifying about events that occurred when she was 15. 

Overview

[3] The incident leading to the convictions occurred on August 19, 2017. Ms. C. was 16 years old and in Grade 11 at the time she testified, and was 15 at the time of the incident. It was common ground that Mr. Kush was a neighbour and family friend. Ms. C. said that she had known him and the other members of his family for her entire life.

[4] The relevant events began at a social gathering at another family friend’s house, earlier on the evening of August 19. Mr. Kush was at this gathering as well.

Crown’s Case

[6] … In direct examination she said she assumed that he had given an affirmative response, because he ended up giving her some marihuana later.

[7] He gave it to her in the form of a joint, when she was alone in A.’s bedroom. He kissed her on the lips after giving it to her. She added in cross-examination that he held the back of her head as he did so, so that she “didn’t really have a choice” whether to kiss him or not. She was “really weirded out” by this kiss. Because Mr. Kush is from Fiji, she thought perhaps it was the “the way to say thank you to women there”. She agreed in cross-examination that it in the past he had kissed her and her sister on the forehead, and had also held their hands and given them hugs. Hugs were the most common of these actions.

[10] After the gathering ended, Ms. C. returned home with her parents, her aunt and uncle, and Mr. Kush.

[13] She testified that Mr. Kush then came into her room. He told her that she should not tell her “parents or anybody” about the marihuana. She responded that she had no intention of doing so. Without actually saying it, he gave her the impression that he felt that she “owed him something” for having given her the marihuana.

[14] He then put his hand inside her shirt and touched her left breast (she could not remember which one it had been when she was first asked by the prosecutor, but was more certain later in her direct examination). He pulled that breast out of her shirt and put his mouth on it and on her chest. She later added that he was sucking on her nipple and also kissing the breast. He used both of his hands to touch her in this manner. It was easy to move the bra she was wearing, she explained, because it was of a type known as a “bralette”, which is made out of stretchy material.

[17] As he was reaching for her other breast, Ms. H. spoke up from the FaceTime call, saying, “Stop”. Ms. C., who until this point had been “frozen” by Mr. Kush’s actions and had not known what to do, also told him to stop. She later expressed her state of mind as …”I knew it was wrong, but I didn’t know what to say”.

[20] Mr. Kush left her room to go to the bathroom, which was across the hall. Her uncle stayed for a few seconds and left, before Mr. Kush returned and engaged in the sexual contact that she had previously described. She agreed that there was nothing stopping her from leaving the room with her uncle, except that she wanted her FaceTime call with Ms. H. to continue. She also agreed that she “pretty much” could not recall which events had happened in Mr. Kush’s first visit to her room versus the second, except that she remembered that he touched her breast and M.M.H. told him to stop during the second one.

[21] In her testimony, Ms. H. recalled being on FaceTime with Ms. C., who was in her bedroom. Then a person came in, whom she recognized as the person who lives across the street from Ms. C. She had seen him before. She added in crossexamination that he either came into the view of the camera as it showed Ms. C. or that Ms. C. “flipped the camera” to show the view in the opposite direction.

[22] According to her testimony, this person went over to Ms. C. and “put his hand on her chest and moved her clothes away for him to do that.” She had been on “pause” on FaceTime after the man came into the room, likely to look at some other applications on her own phone, but when she went off of pause (in crossexamination she clarified that she had actually closed the FaceTime app and then reopened it) she saw a portion of it that included his hand on Ms. C.’s chest. As she put it, “It went from me seeing her face to me going off for a second and going back on and I could see what he was doing…” However, she also agreed with suggestion that this was something she was trying not to watch, because it was “so weird”.

[23] Her initial view of Ms. C. was of an area above her chest, but she believed that as the man did this touching, the phone had fallen (or at least moved in some manner, so that she could see what he was doing). She said that she did not “really remember exactly”, however.

[24] Ms. H. was “pretty sure” that after the man “did it”, he said something like “again”. In response, Ms. H. said “No”, which Ms. C. then repeated. She was also “pretty sure” that the man left right after that. She told Ms. C. that she should tell her mother. At first Ms. C. “didn’t really think it was…that big of a problem”, so Ms. H. told her that “it wasn’t right”, which Ms. C. “ended up…realizing”. In crossexamination she agreed that Ms. C. had been laughing immediately afterwards, and that she had told her that it was not funny. She stressed however that Ms. C. had been “laughing like she was confused and didn’t know what to do”, not as though she had been enjoying what happened.

[25] Ms. C. testified that after Mr. Kush left her room the second time, she sent a text message to her mother, who had left to pick up her sister from a babysitting job, describing in general terms what had just happened. After returning home, her mother told Mr. Kush to leave, and Ms. C. then gave a fuller description of his actions to her parents and her aunt and uncle.

[26] Ms. C. said that because of Mr. Kush’s comment about coming to her window at night, she was no longer comfortable living in her house. To address this fear she stayed with the family friends whose house they had visited earlier on the night of this incident, until she and the rest of her family were able to move.

Defence

[32] According to him, the request for marihuana was made to him by A., whom he described as the younger daughter of the host family, on behalf of Ms. C. This occurred while he was in the hallway of the house, on the way to the washroom. Ms. C. was not physically present during this conversation, but was elsewhere in the house. He said that he was shocked by the request and told A. that he was going to let Ms. C.’s parents know about it. He explained in cross-examination that he wanted to speak to Ms. C.’s father first because “there were quite a few people, and so many kids around there at that time”, but he planned to speak to A.’s father eventually about it as well.

[33] A. told him that they were just kidding about the request. Ms. C., who it turned out was in the family room with the other young people, then said the same thing to him. Ms. C.’s “face expressions were changed, like she was afraid”.

[37] He then went back outside the house. Nothing further occurred between them that night. He did not tell her father what had happened with the door either, again because the father was too drunk. He maintained that he had only remained at the C.s’ house for ten minutes after returning from their friends’ house. He left after Ms. C.’s mother said that the party was over and it was time to go home.

Trial Judgement

[46] After summarizing the evidence, the trial judge turned to a consideration of the issues of credibility and reliability in light of the W.(D.) test, and reviewed some guiding authorities on the assessment of those factors. As she correctly summarized, the application of W.(D.) in these circumstances meant that if she believed Mr. Kush’s evidence or was left in a reasonable doubt by it he had to be acquitted, and that even if neither of those situations applied she still had to go on to consider whether, on the basis of all of the evidence, his guilt had been proven beyond a reasonable doubt.

[47] The trial judge found that despite the fact that Ms. C. was “forthright” in her testimony and had made a genuine effort to answer questions fully and completely, there were some internal inconsistencies in her evidence. …

[48] The trial judge then engaged in the following analysis:

[71] I find that M.C. lack of clarity on these factual details to be plausible, given her relatively young age, the time that had passed since the incident, and her evidence that she tried hard to forget what had happened because it had been so upsetting. However, I further find that these inconsistencies do not diminish the reliability or level of detail provided by M.C. in her testimony as she described the sequence of events in relation to the incident.

[72] Crown counsel drew my attention to the case of R. v. B.(G.), a 1990 decision of the Supreme Court of Canada (at 1990 2 SCR 30). In that case, Madam Justice Wilson, for the Court, commented on the issue of the credibility of child witnesses at paragraph 48:

Dealing first with Wakeling J.A.’s comments regarding the credibility of child witnesses it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.

[73] I have considered these comments in my assessment of the credibility of the two child witnesses, M.C. and M.M.H., and have taken a common- sense approach with the guidance of this passage in my assessment of their testimony. In so doing, I note that M.C.’s testimony is corroborated with respect to a portion of the incident she described by the testimony of her friend M.M.H. and by her mother.

[74] Turning first to M.M.H.’s evidence, I am satisfied, on hearing M.M.H.’s testimony, that M.M.H. had the opportunity to observe and was able to provide specific detail to the court of what she saw take place between the accused and M.C. from the screen of her cellular telephone.

[75] M.M.H. was tested during cross-examination as to her observations and she remained steadfast through cross-examination that she was “certain” that the accused touched M.C.’s breasts with his hand. M.M.H. found what she saw on the screen of her telephone to be difficult. I find that it was reasonable and plausible for a relatively young teen to want to avoid watching what was happening to her friend because she found the content disturbing.

[76] In answer to defence counsel’s questions on cross-examination, M.M.H. testified that she and M.C. had not spoken much at all about this incident after it happened. No further inquiries were made on this point during cross-examination and, therefore, I accept M.M.H.’s evidence and find that there was no collusion between M.M.H. and M.C. in her testimony at trial.

[77] Accordingly, using the same common-sense approach as discussed by Madam Justice Wilson in the R. v. B.(G.) decision, I find that M.M.H. was a credible and reliable witness and I accept her evidence.

[49] The elements of the mother’s evidence that the trial judge found confirmatory of Ms. C.’s evidence were (1) Ms. C.’s level of emotional upset; (2) her unwillingness to stay in the home afterwards; and (3) the location of the door to her bedroom.

[51] As a result, “[o]n the totality of evidence [she had] accepted” the trial judge found that Mr. Kush’s guilt had been proven beyond a reasonable doubt.

Argument on Appeal

[54] The error in the present case was to apply that approach to Ms. C. and Ms. H. – “young adult” witnesses, who were 15 when the events in question occurred and 16 and in Grade 11 when they testified about them.

Analysis

[75] On the first ground of appeal, the governing principles are those set out by the Supreme Court of Canada in W.(R.), which was cited in the A.M. decision above. After citing the same passage from B.(G.) that the trial judge in the present case relied on, the Court explained:

26  It is neither desirable nor possible to state hard and fast rules as to when a witness’s evidence should be assessed by reference to “adult” or “child” standards — to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law’s approach to children’s evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

[Emphasis added]

[76] Despite the Crown’s argument that the trial judge essentially performed the analysis of the evidence of the youthful witnesses in this case according to the standard described in W.(R.), the reality is that she cited the excerpt from B.(G.) that referred explicitly to the treatment of evidence of “young children”. She followed that immediately by the statement that she had “…considered these comments in [her] assessment of the credibility of the two child witnesses…and have taken a common-sense approach with the guidance of this passage in [her] assessment of their testimony.” This is a very direct statement of the principle guiding her analysis.

[77] It is pointless to quibble over how exactly Ms. C. and Ms. H. should have been described. What matters is that they were certainly not “young children”, nor were they testifying as adults concerning events that occurred when they still were young children. They were 16-year olds discussing things that had happened a year and half earlier. Consideration should have been given to their particular age, level of maturity, and specifically their “mental development, understanding and ability to communicate”, when deciding on the significance of any particular shortcomings in what they had described.

[78] Before citing B.(G.) the trial judge had found Ms. C’s “lack of clarity on these factual details [the inconsistencies argued by the defence] to be plausible, given her relatively young age, the time that had passed since the incident and her evidence that she had tried to forget what had happened because it had been so upsetting”. However, it is impossible to reconcile this general statement about age with the trial judge’s subsequent reliance on the authority dealing with young children, or to gauge how much weight was given in the analysis to the other ameliorating factors that the trial judge referred to.

[79] Nor can it be said, as the Crown has also argued, that any such shortcomings in the evidence of these witnesses were not material inconsistencies that required explanation. It is true that Ms. C.’s omission of certain factual details from her direct examination would not necessarily raise concerns about her version of events, and her failure to leave with her uncle after Mr. Kush’s first visit was not necessarily inconsistent with the touching having subsequently occurred.  However, in the most significant of the inconsistencies referred to by the trial judge, Ms. C. described the events leading up to the touching in two quite different ways – the second one only following a prompting question from the prosecutor. The trial judge was inevitably required to grapple with this issue when determining whether Ms. C.’s evidence should be believed. The same is true of the trial judge’s acceptance of Ms. H.’s discomfort, as “a relatively young teen”, with what she was seeing as the explanation for her failure to see any contact between Mr. Kush’s mouth and Ms. C.’s breast. Further, although the trial judge did not address it in her reasons, there was also the inconsistency in Ms. C.’s initial testimony about who was present when she received the marihuana, which she altered when her statement was put to her.

[80] As a result, I conclude that the trial judge’s reliance on B.(G.) to inform her credibility analysis amounted to an error, and that it permeated that analysis to a degree that it is impossible to say that her conclusion would have been the same if it had not been made.

[81] … that conclusion is sufficient to resolve the appeal ….

[93] The appeal is allowed and, since there is certainly evidence on which Mr. Kush could have been found guilty on the application of a correct standard, a new trial is ordered.