This week’s top three summaries: R v Rocha, 2023 ONSC 1573: s7 police & #missing cash, R v Klassen, 2023 BCCA 103: overturned GP b/c s.11(b), and R v Young, 2023 BCSC 276: Corbett #summary
This week’s top case deals with an interesting issue in a drug prosecution. For great general reference on legal issues arising in drug prosecutions, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
Prosecuting and Defending Drug Cases: A Practitioner’s Handbook
By Jeremy Streeter, Nathan Gorham, & Breana Vandebeek
R v Rocha, 2023 ONSC 1573
[March 6, 2023] Charter s.7: Stay for Police Theft of Cash [Schreck J.]
AUTHOR’S NOTE: After practicing for long enough every criminal defence lawyer eventually hears the following story from their client: “how much money does the disclosure say I had? Police must have stolen the money.” Problem with this scenario for the defence is how exactly do you prove it? In this case the pictures of the cash at seizure, a comparison of that picture with the seized exhibit, and some questionable evidence by the police exhibit handler combined to convince the justice that the only explanation possible was that the money went missing in police possession. This case is a useful exemplar of how such situations can be dealt with in the future. The trick will always be mustering the necessary evidence.
REASONS FOR DECISION
[1] A number of police officers executed a search warrant at the apartment where Andrew Rocha lived with his girlfriend. They seized a number of items, including a significant quantity of cocaine and a large quantity of cash. Some of the cash was found in a shoebox and some was found in a coat inside a closet. As a result of the seizures, Mr. Rocha was charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime.
[2] All of the seized items, including the cash and the drugs, were taken to the police station and processed. There were a number of irregularities in the processing of the cash. The money from the shoebox was mixed up with the money from the closet. The wrong property bag number was recorded on the property report. Property receipt numbers were not recorded on the property report as they should have been. Some of these irregularities were explained by the officer who processed the report. Some were not.
[3] The police who conducted the search claim that a total of $19390 was seized. Mr. Rocha claims that the amount taken from his apartment was actually over $6000 more than that. He alleges that the police stole the money and in doing so, violated s. 7 of the Canadian Charter of Rights and Freedoms. He submits that the appropriate remedy is a stay of proceedings.
[5] For the reasons that follow, the application is granted and the proceedings are stayed.
I. EVIDENCE
A. The Search and Seizures
(ii) The Shoebox Money
[7] D.C. Jamal searched a room that appeared to be an office. A large number of shoe boxes containing various types of running shoes were stacked against the walls of the room.
[8] One of the shoe boxes contained five bundles of Canadian currency bound with elastic bands of various colours. During the hearing of the application, this was referred to as the “shoebox money.”
[9] D.C. Jamal removed the money from the shoe box and placed it on a table, where it was photographed. There were four smaller bundles and a fifth bundle that was significantly larger than the others. D.C. Jamal agreed that from looking at one of the photographs, the larger bundle seemed to be a number of smaller bundles bound by individual elastics placed together in a larger bundle.1 D.C. Jamal never removed any of the elastic bands.
[10] D.C. Jamal set the money aside in a “safe space,” the details of which he was unable to recall. It was later placed in a property bag. D.C. Jamal did not seal the property bag because, in his view, there was “no point” because it would have to be placed in another bag later. Although each property bag had a distinct number, D.C. Jamal did not record it.
[11] D.C. Jamal took the property bag containing the money to the police station. He testified that he “would have” given the money to D.C. Dhaliwal, who was assigned the task of processing it. All of the seized items were placed on a table at the police station and photographed. The photographshowsfivebundlesofbillslinedupnexttotwobundlesofbills.2 D.C.Jamalidentified the five bundles of bills as the money he had seized.
(iii) The Closet Money
[12] D.C. Stojic searched a coat closet in the hallway, where he found a quantity of cash which was referred to during the hearing as the “closet money.”
[13] In the front left pocket of a jacket, D.C. Stojic found two bundles of cash wrapped in elastic bands. The smaller bundle contained papers bills in $20, $50 and $100 denominations. All of the bills of each denomination were kept together.
[14] The larger bundle contained polymer bills in $20 and $100 denominations with the bills of each denomination kept together. D.C. Stojic agreed that in the photographs, there did not appear to be in any $50 dollar bills in the polymer bundle.3 However, he later testified that he had made a note about there being $50 bills in both bundles. In fact, his notes had said: “Small one has 20s, 50s, 100, other cash packed in a similar way with denominations.” In his testimony, he suggested that there may have been 50-dollar bills that were not apparent on the photographs.
[15] D.C. Stojic placed the bundles of money and the bags of cocaine he had located in the same property bag, which he did not seal. He then transported all of the items to the police station. At no time did he remove any money from either bundle.
[16] D.C. Stojic testified that it was common practice to put smaller amounts of seized money in an unsealed property bag for transportation to the police station. Larger amounts, which D.C. Stojic believed meant $10000 or more, were to be put into sealed bags and sent to the Asset Forfeiture Unit. D.C. Stojic did not believe that the money he seized was over $10000 because he usually used debit cards and had not “handled cash in years.” He accepted that he was wrong.
[17] When shown the photograph of all of the seized items laid out on the table, he identified the two bundles of bills on the very right as the ones he seized from the closet.4
(iv) Cocaine in the Paint Cans
[18] D.C. Dhaliwal found a number of paint cans in a closet containing a hot water tank. He shook each one to determine whether it contained liquid, and found that all but one of them did. When the can was opened, it was found to contain a large Ziploc bag in which there was uncooked rice and 10 smaller bags containing a white substance later found to be cocaine.
[19] …He later took the paint can back to the station in an unsealed property bag. He testified that it was not his practice to seal property bags used for transporting seized items.
(v) Cocaine in the Coffee Cans
[21] Above the sink, D.C. Stojic found a large coffee can which also had a false bottom in which there were eight Ziploc bags containing what appeared to be cocaine. D.C. Stojic believed that each bag contained an ounce, which was later confirmed. After finding the cocaine, he removed the individual bags so that they could be photographed by Det. Barnes.
B. Processing of the Money
(i) D.C. Dhaliwal is Assigned the Task of Processing the Cash
[22] D.C. Dhaliwal, a police officer with 14 years of experience, was tasked with processing the money…
…He was not aware that the Toronto Police Service had an Asset Forfeiture Unit that was responsible for processing seizures over $10000. He also testified that the cash seized in this case did not appear to him to be over $10000. It was in fact over $19000.
[23] D.C. Dhaliwal was unable to recall where or from whom he received the money in this case. He recalled receiving seven bundles of money at around 8:10 p.m., which he processed in the Youth Bureau on a desk on which there was a desktop computer. This was after the money had been photographed on the table with the other seized items. He agreed that he was aware that the five bundles of cash had been found in a shoebox, although he was not present when it was seized and did not see it in the shoebox. At the preliminary inquiry, he testified that when he was given the money, it was “labeled” to have come from the shoe box. At trial, he explained that by “labeled”, he meant “verbally labeled.”
(ii) The Proper Procedure
[24] When asked what processing seized money entailed, D.C. Dhaliwal said: “Essentially, you would keep the money separate from each other, count the money, separate it by denomination, and fill out a TPS 406, which is a cash report.”…
(iii) Mixing Up the Money
[26] D.C. Dhaliwal initially testified that he first dealt with the two large bundles of money that had been seized by D.C. Stojic (the closet money) and kept the other five bundles apart. He described the process as follows:
Q. Okay. And you processed that money, so you – what do you do, you do one stack at a time?
A. I would essentially take off the rubber bands that are on there, and sort them out by the denominations.
Q. Okay. So at this point you will combine the money?
A. For the two – yes, for the one group that I received from Constable Stojic.
[27] After court broke for the lunch recess, D.C. Dhaliwal testified that he could not recall which bundle of money he processed first. He also gave the following evidence:
Q. Okay. And can you say whether when you processed the money, you counted it separately, or whether you merged it all together? Each different stack.
A. I can’t say.
[28] In cross-examination, D.C. Dhaliwal testified that he tried as best he could to keep the money separate but that he did not believe that it was important to do so because it all belonged to the same individual. At the preliminary inquiry, he had testified that he had kept the shoebox money separate from the closet money.
[29] …He agreed that the first time he realized that the closet money and the shoebox money had been mixed up was during his evidence at trial. He was unable to say how the money got mixed up. Later in cross-examination, he acknowledged that he may have processed all of the money at once, contrary to his earlier testimony.
[31] The Crown concedes that the shoebox money and the closet money were mixed up and not kept separate.
(iv) The Property Report
[32] D.C. Dhaliwal identified the property report he created for the seized money.7 He testified that most of the information at the top of the report, such at the applicant’s name, date of birth and address, was automatically populated by the system. The report had a column headed “Property Receipt No.” which had nothing written below it. D.C. Dhaliwal testified that this was an “oversight” on his part.
[33] The property report referred to two property bag numbers: B1813052 and C1627100. For property bag B1813052, the report lists the following denominations:
121 X $20 = $2420
105 X $100 = $10500
18 X $50 = $900
The total of these is not indicated, although it adds up to $13820.
[34] For property bag C1627100, the report lists:
141 X $20 = $2820
25 X $50 = $1250
15 X $100 = $1500
This totals $5570. At the bottom of the report, the “Grand Total” for both bags is indicated as being $19390.
II. ANALYSIS
A. Overview
[59] The applicant alleges that during the execution of the search warrant at his home, one or more police officers stole a significant amount of the money that they had seized, as well as some of the cocaine hidden in the paint cans. The applicant submits that this constitutes an abuse of process and a violation of s. 7 of the Canadian Charter of Rights and Freedoms. He seeks as a remedy for the violation a stay of the proceedings against him.
B. The Standard of Proof
[62] The parties agree that as this is a Charter application, the applicant bears the onus of establishing the factual basis for the application on a balance of probabilities: R. v. Boston, 2013 ONCA 498, 288 C.R.R. (2d) 167, at para. 23.
[63] While the ultimate burden is on the applicant, it must be borne in mind that once the warrant was executed, the police had complete control over what was seized and are in a unique position to give evidence respecting what was done with the seized items. As a result, if the applicant is able to establish that some of the money was missing, in my view this is a situation where “the true burden is in practice bound to drift towards the Crown, since many factors in the equation are within the peculiar knowledge of the Crown”: J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1992)17, cited in R. v. Bartle, [1992] 3 S.C.R. 173, at p. 210. See also R. v. Besharah, 2010 SKCA 2, 343 Sask. R. (2d) 56, at paras. 26-34; R. v. R.J.S., [1995] 1 S.C.R. 451, at pp. 565-566; R. v. Burlingham, [1995] 2 S.C.R. 206, at pp. 234- 235.
C. Was Money Missing?
(i) Assessment of Credibility
(a) The Applicant
[64] The parties agree that the photographs taken of the money at the time it was seized accurately depict the amount of money that was there. It follows from this that if any of the money is missing, it must have gone missing at some point after the police seized it.
[66] The applicant gave detailed evidence about how much there was, where it was kept, and what denominations it consisted of. The Crown submits that are numerous reasons why his evidence should be rejected. I do not accept some of those submissions. For example, the Crown suggested that the applicant was being untruthful about owning the gambling machines because no such machines were seen in the photographs taken by the police during the execution of the warrant. However, the police obviously could not photograph every item in the apartment, and the machines would not have had any apparent evidentiary value. While there were some inconsistencies in the applicant’s evidence, none were in my view of any significance.
[68] I agree with the Crown that the applicant’s admission to engaging in criminal and other discreditable activity is a cause for concern. He has engaged in drug trafficking and tax evasion. He has, on his own admission, lied to his girlfriend about the source of his income. Because of this, I have approached his evidence with considerable caution, particularly where it was not confirmed by other evidence.
[69] I accept the applicant’s evidence with respect to the amount of money in the shoebox. His account of keeping $1000 bundles until he had $5000 seems to be a reasonable way to keep track of the amount of money in the shoebox. It is also consistent with the photographic evidence, which shows four smaller bundles bound by elastic bands and one larger bundle that appears to be made of smaller bound bundles.
[70] I also accept the applicant’s evidence with respect to the denominations in the four smaller bundles. The photograph of the money while it was still in the shoebox clearly shows that one of the smaller bundles was made up entirely of $100 bills and another made up entirely of $20 bills.18 The other two bundles clearly had a mix of bills of different colours, and one of those clearly has more $20 bills in it than the others. All of this confirms the applicant’s evidence.
[71] The applicant does not claim to know the denominations in the larger bundle.
[72] I accept the applicant’s evidence that there was $15000 in polymer bills in the closet. According to him, there were 190 bills (50 X $20 and 140 X $100), and the bundle depicted in the photograph appears to be consistent with that number based on my examination of the cash exhibit.19 It appears from the photograph that about three quarters of the bills are brown and one quarter is green, which is consistent with the denominations identified by the applicant.
[73] I do not accept the applicant’s evidence that there was $1800 in paper money. The applicant testified that there was initially $1200 in $20 bills but only $920 in the money that was seized, which would mean that $280 worth of $20 bills are missing. However, if there was initially a total of $1800 and now a total of $1570, only $230 would be missing. If the applicant is correct about the number of $20 bills there were, he could not be correct about the total amount. I do not, however, find that the applicant was intentionally trying to mislead the court. Given the limited purpose for which this money was to be used, it is not surprising that he would not keep careful track of the total amount.
(b) D.C. Dhaliwal
[74] There are several reasons why I do not find D.C. Dhaliwal to be a credible witness. He initially testified that he had kept the shoebox money and the closet money separate. He gave similar evidence at the preliminary inquiry. He then maintained that he had kept it separate, but may have simply put the closet money in the property bag for the shoebox money and vice versa. He eventually acknowledged that the money from the two sources had been mixed up and not kept separate as he had claimed. He gave no explanation for why he had clearly claimed to have kept them separate when this was not accurate. Instead of simply acknowledging the error, he said, “I don’t believe there was an importance to keep it separate” because “they all belong to one individual.”
[75] In any case where possession is an issue, where the item in question is found is of importance. The fact that an item is found in a room used exclusively by the accused tends to support an inference of possession while the fact that an item is found in a common area does not. D.C. Dhaliwal, a police officer with 14 years of experience, would have known this. His evidence that it was not important to keep the money separate was not only inconsistent with his earlier testimony, it was a clear attempt at downplaying the importance of the significant inconsistency in his testimony.
[76] D.C. Dhaliwal gave shifting explanations for why property bag B1813052 had been incorrectly noted as bag C1627100 on the property report. At the preliminary inquiry, D.C. Dhaliwal testified that he may have used an old property report from another investigation. In cross-examination, however, he acknowledged that the form was computer-generated and would have been blank when he started, at which point he explained that his earlier explanation was “just a possibility.” At another point in his testimony, he stated that bag C1627100 was a bag that he had intended to use but never did.
[77] While putting the wrong bag number on the report may have been an understandable mistake, D.C. Dhaliwal’s attempts to provide inaccurate and inconsistent explanations for the mistake are troubling.
[79] The sheer number of clerical errors made by D.C. Dhaliwal are a cause for concern about his credibility. He recorded the wrong property bag number on the property report, he logged the wrong property receipt number into the property locker, he failed to enter the property receipt numbers into the property report, and he changed the amount recorded on one of the bags from $11400 to $13700.
[80] Most importantly, D.C. Dhaliwal was unable to explain how the money came to be mixed up. There were only two cash seizures in this case. The cash was seized by different officers and kept separate up to the point when it was laid out on the table at the police station together with the other seized items. D.C. Dhaliwal initially testified that he kept the money separate, although he later acknowledged that he did not and downplayed the importance of doing so. It is difficult to understand why he would not have simply processed the money from one source and then, when he was done, process the money from the other source. For some reason, he did not do this, but then claimed that he did. When it became obvious that he did not, he was unable to provide any explanation.
(ii) Conclusions Respecting the Money
[81] Based on the foregoing, I accept that $24000 in polymer bills was seized and only $17820 ($19390 less the $1570 in paper money) made its way into the property bags.
[82] While I am unable to make specific findings about the amount of paper money, I accept that some of it is also missing. This is evident from a visual comparison between the paper money in Exhibit 5A and the photograph of the paper money that was seized.20 The bundle in the photograph is clearly larger.
[83] While not conclusive, the applicant’s attempt to recreate the bundles of money in the shoebox also support the inference that some of the money is missing. As noted, I accept the applicant’s evidence with respect to the denominations in the smaller bundles. The applicant attempted to recreate the denominations in the larger bundles (115 X $20, 34 X $50, 10 X $100). While it is doubtful that this was completely accurate, it seemed to be reasonable and consistent with the photographs.
[84] As outlined earlier, there were not enough $20 bills and $50 bills in Exhibit 5A to recreate the shoebox money. While there were enough $20 bills in Exhibit 10B to make up the shortfall, this left only one $20 bill and there were clearly far more than that in the polymer money from the closet. There were not enough $50 bills in Exhibit 10B, although they could be replaced with $100 bills. While Crown counsel suggested to the applicant that there were more $100 bills in the $5000 bundle and fewer $20 bills, the applicant correctly pointed out that it was clear from the photographs that there were far more $20 bills in the bundle than bills in other denominations.
[85] Based on the foregoing, I am satisfied on a balance of probabilities that approximately $6000 of the seized cash is missing.
E. Did the Police Take the Money?
[87] The fact that cash is missing does not necessarily mean that it was stolen, although given its inherent value, this is a reasonable inference. In this case, there is no other explanation for the missing cash. The amount involved is far too large for it to have been simply misplaced.
[88] While the Crown suggested that the money may have been taken by the applicant’s girlfriend or an unidentified visitor to the apartment, there is no evidence supporting these suggestions. The money was photographed by Det. Barnes almost immediately after it was seized. The officers who seized the money testified that they kept it in a safe place prior to bringing it to the police station. It is inconceivable that while they were conducting the search, the police would have allowed the applicant’s girlfriend or some other person to wander around the apartment and have an opportunity to take the money.
[89] Based on this record, I am not prepared to make a specific finding with respect to the identity of the person who took the money….
…However, the money clearly went missing while it was in the control of the police. Absent some other explanation, the only reasonable inference is that it was taken by a police officer…
[90] Based on the foregoing, I am satisfied on a balance of probabilities that the money was taken by one or more police officers involved in the investigation.
F. Was There a Breach of Section 7 of the Charter?
[91] It is well established that misconduct by agents of the state that offends community notions of fairness and decency can constitute a violation of s. 7 of the Charter, even where the fairness of the trial is not affected: R. v. O’Connor, [1995] 4 S.C.R. 411, at paras. 63, 73; R. v. Jageshur (2002), 169 C.C.C. (3d) 225 (Ont. C.A.), at paras. 14-19.
[92] The search warrant provisions of the Criminal Code and other statutes give the police the extraordinary power to enter a person’s home and take his or her belongings in circumstances where the police have complete control over what is taken and what becomes of it. There can be no question that where that power is abused in order to commit theft, the integrity of the justice system is severely undermined. In such cases, the “breach of the trust that is given to the police is enormous”: R. v. Somerville, 217 ONSC 3311, 383 C.R.R. (2d) 92, at para. 145. There has been a breach of s. 7 of the Charter in this case.
G. The Appropriate Remedy
(i) Overview — The Test For Granting a Stay of Proceedings
[93] The applicant seeks a stay of proceedings. The test for granting a stay is well established and was explained in R. v. Babos, at paras. 30-32:
The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:
(1)There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);
(2)There must be no alternative remedy capable of redressing the prejudice; and
(3)Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (ibid., at para. 57).
[94] Theft by the police committed during the execution of a search warrant has been held to warrant a stay of proceedings: Somerville, at paras. 148-168; Williams, at paras. 60-66.
(ii) The “Clearest of Cases”
[96] The Crown’s submission appears to be based on a misunderstanding of the “clearest of cases” standard referred to in Babos and other cases. The “clearest of cases” refers to the legal test for granting the remedy of a stay of proceedings, not the evidentiary standard of proof to be applied when determining whether the facts giving rise to the breach have been established: R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at para. 82; R. v. Punko, 2011 BCCA 55, 266 C.C.C. (3d) 316, at paras. 46-47, aff’d without reference to this point 2012 SCC 39, [2012] 2 S.C.R. 396.
[97] As noted earlier, the standard of proof on a Charter application is a balance of probabilities. If the court is satisfied that it is more likely than not that the breach occurred, then the Charter violation has been established and the court must go on to consider the question of remedy. It does not matter if the breach was established by an accused’ testimony, independent documentation or CCTV. In this case, I have found that there was a breach for the reasons I have outlined.
[98] The Crown submits that an alternative remedy would be to exclude from evidence the seized cash and the drugs in the paint can, but not any of the drugs found in other locations because there was no allegation that they were stolen.
[99] In my view, the remedy of partial exclusion would be inadequate in the circumstances and would require the court to draw an artificial line between the seizure of some of the drugs and the rest of the search. This is a “residual category” case where there is prejudice to the integrity of the justice system and the appropriate remedy must be directed to addressing that prejudice, as was explained in Babos, at para. 39:
Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.
In a case where the prejudice to the justice system’s integrity arises out of an abuse of the search warrant powers given to the police, allowing the state to nonetheless rely on evidence obtained during the course of that abuse does little, if anything, to dissociate the justice system from the impugned conduct: R. v. Ahmed, 2011 ONSC 2551, 272 C.C.C. (3d) 549, at paras. 68-69.
[100] Excluding all of the evidence obtained during the search may serve to dissociate the justice system from the impugned conduct. However, given that the applicant is charged with possession of controlled substances for the purpose of trafficking and possession of the proceeds of crime, there is no meaningful distinction between staying the proceedings and excluding all of the evidence necessary for the Crown to prove its case….
[101] The Crown has not suggested any other alternative remedy, nor can I think of one.
(iv) Balancing
[102] The third part of the test in Babos, which requires a balancing of the interests favouring a stay with those favouring a trial on the merits, is only required where there is still uncertainty over whether a stay is warranted. However, the Court in Babos, at paras. 41-43, suggested that the balancing will usually be required in cases where the residual category is in issue, and adopted the following from R. v. Zarinchang, 2010 ONCA 286, 99 O.R. (3d) 721, at para. 60:
In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits? In answering that question, a court will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion. [Emphasis added.]
[103] In this case, there is clearly a strong societal interest in a trial on the merits. The applicant is charged with possessing harmful drugs for the purpose of trafficking and doing so on a large scale. The evidence against him appears to be formidable, and if convicted he very likely would face a penitentiary sentence.
[104] Balanced against this is the need for the court to dissociate itself from egregious misconduct. As noted, police officers executing search warrants are given significant powers. I have no doubt that the vast majority of police officers exercise those powers responsibly and honourably. However, those that do not will almost always be able to do so with impunity, secure in the knowledge that their word is likely to be believed over that of an accused criminal. In my view, maintaining the integrity of the process is inconsistent with allowing the state to benefit from evidence obtained in such circumstances. As a result, the balance in this case favours a stay of proceedings.
R v Klassen, 2023 BCCA 103
[March 6, 2023] Setting Aside a Guilty Plea: the Jordan threshold [Reasons by Dickson J.A. with Butler, Grauer JJ.A. concurring]
AUTHOR’S NOTE: Although the principles for setting aside are now well know and outlined in R v Wong, 2018 SCC 25, the application of these principles to novel situations is always important to keep track of. Here, the only reason to set aside the GP was the failure of defence counsel to explain that the matter had gone over the Jordan threshold at the time of the GP being entered. Unfortunately for the accused in this case, the Court of Appeal sent this matter back to trial, where different 11(b) principles will apply to a re-trial.
Introduction
[1] This appeal concerns whether and, if so, why this Court should set aside the appellant’s guilty pleas and quash his convictions for possession of controlled drugs for the purpose of trafficking. The appellant, Beverly Keith Klassen, and his friend, Janessa Rae Marchuk, were tried together on those charges on a three-count Information. Following adverse Charter rulings on admissibility, Mr. Klassen pleaded guilty to all three counts and the trial continued against Ms. Marchuk. Mr. Klassen testified and claimed sole responsibility for the offences, but the trial judge convicted Ms. Marchuk. However, she later stayed the proceedings on the basis that Ms. Marchuk’s s. 11(b) Charter right to be tried within a reasonable time, as contemplated in R. v. Jordan, 2016 SCC 27, had been infringed.
[2] On appeal, Mr. Klassen asks this Court to set aside his guilty pleas and quash his convictions. In his submission, allowing the convictions to stand would amount to a miscarriage of justice because his trial counsel provided him with ineffective assistance and his pleas were uninformed. According to Mr. Klassen, armed with proper information he would not have pleaded guilty, the outcome of the proceedings likely would have been different, and therefore he was prejudiced. Consequently, he submits, we should set aside his guilty pleas, allow the appeal, and direct a new trial.
[3] In my view, Mr. Klassen’s guilty pleas were uninformed because he was unaware of their direct legal consequences, namely, that he was forfeiting his right to appeal the Charter rulings and to pursue a Charter remedy based on s. 11(b) and Jordan principles. It is also reasonably possible that he would not have pleaded guilty had he been aware of the consequences of doing so. As a result, Mr. Klassen was prejudiced and allowing his pleas to stand would amount to a miscarriage of justice pursuant to the principles articulated in R. v. Wong, 2018 SCC 25. For that reason and those that follow, I would set aside the guilty pleas, quash the convictions, allow the appeal, and direct a new trial.
[22] Immediately following delivery of the ruling, the drugs were admitted into evidence and the Crown closed its case. At that point, trial counsel advised the judge that he had been instructed to change Mr. Klassen’s pleas to guilty on all three counts of the Information. The judge asked Mr. Klassen if that was correct and he replied “[y]es” to her question. No further plea inquiry was conducted and guilty pleas were recorded on all three counts.
[23] The presumptive Jordan ceiling was reached on July 25, 2018, two days before Mr. Klassen entered his guilty pleas.
Proceedings Following Guilty Pleas
[24] After Mr. Klassen entered his guilty pleas, the trial was adjourned to allow counsel for Ms. Marchuk to consider whether to call Mr. Klassen to testify. When it resumed on July 30, 2018, Mr. Klassen testified as a witness for the defence. In doing so, he acknowledged selling drugs on the night in question, but claimed that Ms. Marchuk was not involved and he was simply giving her a ride when Constable Sylka stopped them. Ms. Marchuk testified to generally similar effect.
[25] On December 5, 2018, Ms. Marchuk completed her testimony and her counsel made final argument. On January 16, 2019, the judge delivered oral reasons for judgment. She rejected Mr. Klassen and Ms. Marchuk’s testimony, found they were in joint possession of the drugs for the purpose of trafficking, and convicted Ms. Marchuk on all three counts.
[26] On February 25, 2019, Ms. Marchuk brought an application seeking a stay of proceedings for unreasonable delay based on s. 11(b) of the Charter and the principles articulated in Jordan. On April 23, 2019, the judge sentenced Mr. Klassen to 15 months of incarceration. On June 21, 2019, she heard Ms. Marchuk’s Jordan application. On September 16, 2019, she granted the application and stayed the proceedings.
[27] In her ruling on Ms. Marchuk’s Jordan application, the judge noted that the total delay from the date the Information was sworn (January 25, 2017) to the date the trial completed (January 16, 2019) was 23 months and 21 days, not accounting for defence delay or exceptional circumstances. In other words, the total delay under consideration was 171 days over the presumptive Jordan ceiling, which, as noted, was reached two days before Mr. Klassen entered his guilty pleas. After reviewing the history of the proceedings, noting that the original two-day trial estimate was inadequate, and attributing 91 days of delay to Ms. Marchuk, the judge expressly declined to speculate on “whether a decision could have been rendered by the court on July 30th if defence was able to make a decision on July 27 on calling a case”. She also characterized the period from May 15, 2018 to July 30, 2018 as a discrete event and deducted 75 days as result. She concluded her ruling by finding that “[b]ased on the court’s calculation this puts the case five days over the Jordan ceiling”. That being so, she directed a stay of proceedings.
On Appeal
Fresh Evidence Application
[28] In advancing his appeal, Mr. Klassen relies on two affidavits that he swore, two affidavits sworn by trial counsel, and their respective cross-examinations as fresh evidence. The first two affidavits were sworn and filed before the main factums were filed. The second two were sworn in response to a memorandum from the division originally assigned to hear the appeal. In the memorandum, the division noted that both parties acknowledged the presumptive ceiling in Jordan had passed when Mr. Klassen pleaded guilty and asked that they address the advice, if any, provided on the Jordan issue prior to entry of the pleas.
[29] The parties agree that the fresh evidence is admissible based on the principles outlined in Wong (paras. 6, 19) and R. v. Ball, 2019 BCCA 32 (paras. 100–104).
[30] In my view, Mr. Klassen and trial counsel were both straightforward, generally credible witnesses. Although their memories differed on some details, their accounts were substantially similar in most material respects. Based on their affidavits and their testimony, I would find the following facts:
- When Mr. Klassen pleaded guilty, trial counsel knew that the presumptive Jordan ceiling had passed, but did not believe a Jordan application would succeed given the number of defence adjournments, the increasingly complicated nature of the case, and the fact that two accused were involved. It did not occur to trial counsel that if Mr. Klassen continued on with the trial rather than pleading guilty his chances of succeeding on a Jordan application brought later in the proceedings might improve.
- When Mr. Klassen pleaded guilty, trial counsel did not tell him that the presumptive Jordan ceiling had passed or discuss bringing a Jordan application at the time or later in the proceedings. In particular, he did not advise Mr. Klassen that he could seek a Charter remedy based on s. 11(b) and Jordan principles, but that he would lose the right to do so by entering the guilty pleas.
- Mr. Klassen entered his guilty pleas based on the information and advice he received from trial counsel.
- After he pleaded guilty, Mr. Klassen learned that Ms. Marchuk was seeking a stay based on Jordan principles. When he questioned trial counsel about the Jordan issue, trial counsel told him the Jordan clock had stopped running when he entered his guilty pleas.
Discussion
Legal Framework
Challenging a Guilty Plea on Appeal
[36] As the Court emphasized in Wong, guilty pleas play a centrally significant role in the Canadian criminal justice system. For an accused, pleading guilty waives the right to require the Crown to prove its case beyond a reasonable doubt and surrenders the right to make full answer and defence, including by pursuing Charter-based arguments. For society, maintaining the finality of guilty pleas helps to ensure the stability, integrity, and efficiency of the administration of justice because most criminal cases are resolved by guilty pleas. Given their central significance for the criminal justice system as a whole, a court may accept a guilty plea only if it is “voluntary, unequivocal and informed”: Wong at paras. 2–3, 43, 62; R. v. Hexamer, 2018 BCCA 142 at para. 57; s. 606(1.1), Criminal Code.
[37] For a guilty plea to be informed, the accused must be aware of the nature of the allegations, and the effect and legal consequences of the plea. The consequences of the plea include those collateral consequences that flow from the conviction and bear on sufficiently serious legal interests of the accused: Wong at paras. 2–4, 43, 63, 96–97; R. v. Lam, 2020 BCCA 276 at paras. 7, 75, 79. For example, in Wong the guilty plea was uninformed because the appellant was unaware of the legally relevant collateral consequences of his conviction and sentence in connection with immigration when he pleaded guilty. In Lam, the guilty plea was uninformed because the appellant was unaware that as a significant and direct legal consequence of his guilty plea he would forfeit his right to challenge the validity of a search warrant.
[38] Canadian courts have also repeatedly found guilty pleas uninformed when the accused entered them based on a mistaken belief that doing so would not forfeit the right to appeal an adverse ruling on the admissibility of evidence: see, for example, Duong; R. v. Chuhaniuk, 2010 BCCA 403; R. v. Fegan (1993), 80 C.C.C. (3d) 356 (Ont. C.A.). In Duong, Justice Rowles explained the proper procedure for an accused to follow to preserve the right to appeal an adverse ruling on admissibility, namely, to admit the underlying facts and invite the judge to convict: at para. 8.
[39] This Court has jurisdiction under s. 686(1)(a)(iii) of the Criminal Code to set aside a guilty plea if allowing it to stand would amount to a miscarriage of justice: Wong at para. 1. As Justice Fitch stated in Lam, s. 686(1)(a)(iii) concerns itself with the prejudicial impact of an event relating to a trial, and extends to events that lead to actual and apparent unfairness: at para. 78.
[41] The Wong framework for striking an uninformed guilty plea involves a two- step analysis. First, the impugned plea must be shown to be legally invalid because the accused was misinformed about sufficiently serious information. Second, prejudice serious enough to constitute a miscarriage of justice must be shown. The first step – whether the unknown information falls within the scope of what an accused must know to give an informed plea – “objectively assesses the seriousness of the unknown legal consequence”: Wong at para. 34. At the second step, the Court assesses whether there is a reasonable possibility the accused would have proceeded differently had they been aware of the legally relevant consequence, either by declining to plead guilty or by pleading guilty but with different conditions. In other words, the standard of proof is a “reasonable possibility” and the test for prejudice is purely subjective. Accordingly, unlike the objective approach adopted to assessing the quality of the unknown information when determining whether a guilty plea is uninformed, at the second step of the analysis the Court assesses prejudice by asking if the evidence establishes a reasonable possibility that this accused has suffered prejudice viewed exclusively from their subjective perspective: Wong at paras. 4–6; 26; 33-36; Lam at paras. 80, 87, 89, 93.
[42] …the majority held that the prejudice inquiry is purely subjective to the accused in light of the fundamentally subjective and deeply personal nature of a decision to plead guilty. However, it stated, the credibility of an accused’s subjective claim may be assessed objectively: at paras. 6, 11, 12, 25–26, 36.
[43] The majority in Wong went on to state that where the court accepts the veracity of an accused’s claim that they would have pleaded differently armed with the relevant information, “the accused has demonstrated prejudice and should be entitled to withdraw his or her plea”: at para. 20. It also observed that the accused “need not show a viable defence to the charge in order to withdraw a plea on procedural grounds” because the prejudice “lies in the fact that in pleading guilty, the [accused] gave up [the] right to a trial”: at para. 23, citing R. v. Rulli, 2011 ONCA 18 at para. 2. In other words, the majority explained:
[23] … Requiring the accused to articulate a route to acquittal is antithetical to the presumption of innocence and to the subjective nature of choosing to plead guilty. An accused is perfectly entitled to remain silent, advance no defence, and put the Crown to its burden to prove guilty beyond a reasonable doubt. It does not make sense to let an accused proceed to trial at first instance without any defence whatsoever, but to insist on such a defence to proceed to trial when withdrawing an uninformed plea. Though the decision to go trial may be unwise or even reckless, we are not seeking to protect an accused from himself or herself. Rather, we seek to protect an accused’s right to make an informed plea.
[Emphasis added.]
[44] In rejecting the minority rationale for adopting a modified objective approach to assessing prejudice, the majority discussed the Court’s guidance in R. v. Taillefer, 2003 SCC 70. In doing so, it emphasized the nature of the salient prejudice in cases involving uninformed guilty pleas, namely, the impact of the misinformation on the accused’s decision to plead guilty:
[35] … prejudice – that is, whether the accused’s being uninformed impacted the plea – is assessed subjectively by considering whether the accused would have taken a meaningfully different course of action in pleading. This is entirely consistent with Taillefer, where prejudice was similarly assessed by considering whether the accused would have made the same plea. In particular, a subjective analysis conforms to the direction in Taillefer that “the breach must bear on the accused’s decision to enter the guilty plea”, that courts must assess “the impact of the unknown evidence on the accused’s decision to admit guilt”, and that the test is whether “there was a realistic possibility that the accused would have run the risk of a trial, if he or she had been” informed (para. 90 (emphasis added))…
[Emphasis in original.]
[45] An appellant who challenges a guilty plea for the first time on appeal bears the onus of establishing valid grounds for the appellate court to set it aside and quash the convictions. Where the appellant claims that the guilty plea is invalid and should be set aside because it was uninformed, affidavit evidence to that effect is generally required for the appeal to succeed: Wong at paras. 6, 19, 30; Lam at paras. 88–90; Zaworski at paras. 4, 54.
[46] …focusing on whether ineffective assistance was the source of the invalidity “only confuses the analysis”: Wong at paras. 24, 60; see also, Lam at paras. 69–72 and Zaworski at para. 48.
Were Mr. Klassen’s guilty pleas uninformed and, if so, on what basis?
[52] I am unclear on the reasoning behind Crown counsel’s submission that Mr. Klassen’s guilty pleas were not uninformed even if he was unaware that the presumptive Jordan ceiling had passed and that he would forfeit his right to pursue a Charter remedy based on s. 11(b) and Jordan principles by pleading guilty. This is particularly so bearing in mind the Crown’s argument in its main factum that when Mr. Klassen pleaded guilty he voluntarily gave up the right to raise Charter-based arguments “when it would have been apparent that the Jordan ceiling had been reached” and he decided “to instead appeal the Charter ruling” (emphasis added). In other words, prior to receiving this Court’s request for submissions on the Jordan issue, the Crown relied on the assumption that Mr. Klassen knowingly chose to give up pursuit of a Charter remedy based on s. 11(b) and Jordan principles when arguing that he was not prejudiced by uninformed guilty pleas. In my view, in doing so the Crown was suggesting Mr. Klassen knew the Jordan ceiling had been reached and for that reason his pleas were not uninformed.
[53] As I have explained, when an appellant asks this Court to set aside a guilty plea because it was uninformed there are two key questions for consideration: (i) whether the plea was uninformed and, if so, (ii) whether the appellant suffered subjective prejudice.…
[54] For Mr. Klassen’s guilty pleas to be informed he needed to know of their direct and serious legal consequences. Given that the presumptive Jordan ceiling had passed, in my view, one of the objectively serious legal consequences of pleading guilty of which Mr. Klassen was unaware was that he would forfeit the right to pursue a Charter remedy based on s. 11(b) and Jordan principles. This was so regardless of whether trial counsel’s view of the strength of a Jordan argument was reasonable and regardless of whether a Jordan application, brought then or later, likely would have succeeded. In the circumstances, Mr. Klassen had a right to pursue a Charter remedy based on Jordan principles, and, as the Court stated in Wong, he was entitled to throw a “Hail Mary” if he wished to do so: at para. 20. In addition, and importantly, the decision on whether to plead guilty was his alone to make and he was entitled to make it based on proper information: Wong at paras. 2– 4, 20, 33–35.
[55] However, when he pleaded guilty Mr. Klassen was unaware that the presumptive Jordan ceiling had passed and he would be forfeiting the right to pursue a Charter remedy based on s. 11(b) and Jordan principles. I reach this conclusion based on his evidence, trial counsel’s evidence, and the absence of a substantive plea-comprehension inquiry when he entered the pleas. As he testified, Mr. Klassen did not know that “18 months was a lot of time” and that he was forfeiting the right to pursue a remedy for unreasonable delay by pleading guilty. In these circumstances, as I see it, Mr. Klassen’s guilty pleas were uninformed on that basis as well.
[57] Like Justice DeWitt-Van Oosten in Zaworski, I endorse Justice Fitch’s comments in Lam with respect to plea-comprehension inquiries:
[102] In conducting the plea comprehension inquiry required by s. 606(1.1), it may be helpful for judges to confirm with the accused his or her understanding that a plea of guilty constitutes a waiver of the right to require the Crown to prove its case beyond a reasonable doubt and, concomitantly, a surrender of the right to make full answer and defence, including by pursuing Charter-based arguments seeking the exclusion of evidence in defence of the offences charged: Wong at para. 62, per Wagner J. (as he then was) dissenting in the result; R. v. Hexamer, 2018 BCCA 142 at para. 57.
I would add only that it may also be helpful for judges to confirm that the accused understands pleading guilty will forfeit their right to appeal all previous rulings associated with the case: R. v. Lopez-Restrepo, 2018 ONCA 887 at para. 24.
Does the evidence establish a reasonable possibility that Mr. Klassen would not have pleaded guilty had he been properly informed?
[58] I am satisfied that it is reasonably possible Mr. Klassen would not have pleaded guilty had he known that by doing so he would forfeit his right to appeal the Charter rulings and to pursue a Charter remedy based on s. 11(b) and Jordan principles. I reach this conclusion based on his evidence and trial counsel’s evidence, considered in the overall context of the case.
[59] Specifically, I accept that while Mr. Klassen was willing to do whatever he could to help Ms. Marchuk obtain an acquittal, he was not, as he testified, “about to throw [himself] under the bus to get her off”. Nor was it necessary for him to plead guilty to admit possessing the drugs for the purpose of trafficking in an effort to assist her. I also accept that Mr. Klassen intended to appeal the Charter rulings before he pleaded guilty, and believed he would be entitled to pursue that appeal when he entered his guilty pleas. Further, I am satisfied that, properly advised, Mr. Klassen would have been told the presumptive Jordan ceiling had passed and the chances of a Jordan application succeeding could improve if he continued on with the trial, but if he pleaded guilty he would forfeit the right to pursue a Charter remedy based on s. 11(b) and Jordan principles.
[60] Given this context, I am confident that it is reasonably possible Mr. Klassen would not have pleaded guilty had he known that by doing so he would forfeit his right to appeal the Charter rulings and to pursue a Charter remedy based on s. 11(b) and Jordan principles.
[61] Properly construed, this concludes the analysis of whether this Court should set aside Mr. Klassen’s guilty pleas. Based on Wong principles, the guilty pleas should be set aside: they were uninformed and Mr. Klassen suffered prejudice giving rise to a miscarriage of justice because it is reasonably possible that he would not have pleaded guilty if he had been properly informed.…
[72] In my view, in cases where a guilty plea is found to be uninformed the combined effect of Wong and Zaworski is not that the Court should examine the quality of the misinformation in assessing whether allowing the plea to stand would amount to a miscarriage of justice. As the majority made clear in Wong, the salient prejudice in such cases is the impact of the misinformation on the appellant’s subjective decision to plead guilty. If the appellant would have pleaded differently armed with proper information on the legal consequences of pleading guilty, serious prejudice has been demonstrated because there has been a breach of procedural fairness such that allowing the plea to stand would amount to a miscarriage of justice. That is so regardless of whether the outcome of the proceedings may be legally justifiable.
[75] To repeat, in this case Mr. Klassen was unaware of the direct and serious legal consequences of his guilty pleas and there is a reasonable possibility that he would have pleaded differently had he been aware of them. It follows that he has demonstrated subjective prejudice and that allowing his guilty pleas to stand would amount to a miscarriage of justice.
Conclusion
[76] For these reasons, I would set aside the guilty pleas, quash the convictions, allow the appeal, and direct a new trial.
R v Young, 2023 BCSC 276
[February 28, 2023] Criminal Record of the Accused: Exclusion of Similar and Dated Offences [Mr. Justice Gomery]
AUTHOR’S NOTE: This case provides an overall good summary of Corbett principles for excluding the criminal record of the accused after R v King, 2022 ONCA 665 (the introduction of Gladue principles to Corbett applications). Ultimately, the decision excludes dated and similar records on the basis of a lack of probative value. There could have been further editing of some offences. For example, robberies are often edited to theft to exclude the element of violence. However, it is instructive that this was essentially a self-instruction exercise being done by a judge sitting alone. So despite the Court’s ability to disabuse their mind of evidence improperly before him, the judge still went through the process of a Corbett application to determine which offences could be considered by him.
Introduction
[1] George Nicholas Young is charged that he committed an aggravated assault of Tyler Takeda, contrary to s. 286(2) of the Criminal Code, R.S.C. 1985, c. C-46. He has elected to be tried by judge alone.
[2] Mr. Young has an extensive criminal record. At the close of the Crown’s case, Mr. Young sought an anticipatory ruling on a voir dire that his criminal record be redacted for the purpose of cross-examination, if he gives evidence. This is known as a Corbett application, after R. v. Corbett, [1988] 1 S.C.R. 670, 1988 CanLII 80. Mr. Young has Indigenous ancestry and he incorporated Gladue principles (after R. v. Gladue, [1999] 1 S.C.R. 688, 1999 CanLII 679) into his argument. He relied on R. v. King, 2022 ONCA 665 as stating the correct legal approach. Applying that approach, he submits that only a single criminal conviction, for robbery in 2018, should be available to the Crown for use in cross-examination.
[4] At the conclusion of the voir dire, I ordered that the criminal record that may be put to Mr. Young in cross-examination should be limited to:
- three convictions in 2015 and 2016 for driving while disqualified;
- a 2017 conviction for failure to appear in 2016;
- a 2018 conviction for robbery in 2017; and
- a 2019 conviction for assault causing bodily harm.
Legal framework
[6] At paras. 132-201, King provides a comprehensive account of the legal principles governing a Corbett application. I will not attempt to replicate it in these reasons. The following are some highlights:
- While it is not otherwise open to the Crown to adduce evidence of an accused’s prior convictions, when the accused testifies, cross-examining counsel are presumptively entitled to adduce evidence of the fact of the conviction, its date and place, and the penalty imposed; King, at paras. 138 and 142;
- The presumptive admissibility of prior convictions rests on the theory that they are relevant to an assessment of the accused’s credibility while testifying, though the degree of relevance depends on the nature of the previous conviction so that, historically, convictions for offences of dishonesty (deceit, fraud, cheating and theft) and disrespect for the administration of justice have carried greater weight; King, at para. 140;
- However, the admission of evidence of prior convictions carries with it the risk that the trier of fact will make use of them for the improper purpose of inferring a propensity to commit the offence with which the accused is now charged; King, at para. 141;
- To limit that risk, on a Corbett application, a trial judge may order that certain convictions (or all of them) be excluded from the record to be used in cross-examination where the judge is satisfied, on a balance of probabilities, that the probative value arising from them is outstripped by the prejudicial effect that may arise from their admission; King, at para. 145;
- The assessment is discretionary and trial judges typically consider, among other factors, (1) the nature of the convictions; (2) their remoteness or nearness to the matter under prosecution; (3) the similarity between the offences charged and the prior convictions; and (4) the risk of presenting a distorted picture to the trier of fact; King, at paras. 145 and 201;
- Where the accused is an Indigenous person, in the exercise of their discretion judges should take into account social realities, including the consequences of overt and systemic racism experienced by Indigenous people, bearing in mind that trial fairness is the overarching concern in a Corbett application; King at paras. 172-173;
- Accordingly, the judge must “… place the Indigenous accused’s criminal record within the context in which it has been accumulated, one that corrects for possible systemic biases, stereotypes and assumptions”; King, at para. 179;
- In particular, the context can detract from the strength of the credibility inference that would otherwise be taken. Accounting for distortions caused by the possibility of stereotyping and systemic biases against Indigenous people may reveal that the criminal record is “… much less reflective of an Indigenous accused’s subjective disregard for the truth or contempt for the law than would otherwise appear”; King, at para. 180;
- While evidence is required of systemic and background factors associated with indigeneity that have impacted the accused’s life, there need not be a direct causal link between those circumstances and past offending conduct that resulted in a conviction; King, at paras. 182-184;
- The task of the judge is to determine, in the light of the evidence, whether an inference can safely be drawn from the fact and nature of the conviction to a lack of credibility. As Fairburn A.C.J.O. and George J.A., writing for the Court, put it in King at para. 185:
… Looking at the conviction in the context of discrimination – whether direct, indirect, or systemic – allows the trial judge to determine whether the accused’s criminal record makes it more likely that the accused is not the type of person to tell the truth or respect the authority of the law, or whether the impact of the experience of racism on this particular accused’s life renders the credibility inference so tenuous that admission of the conviction is gutted of its probative value.
- The judge must also consider whether, in the context of this Indigenous accused, the risk of propensity-based reasoning is increased by the presence of conscious or unconscious racial stereotypes that are pervasive within Canadian society; King, at paras. 193-196.
The criminal record
[17] At the risk of some oversimplification, Mr. Young’s criminal record may be summarized as follows.
[18] He has nine convictions for assaults of varying degrees of severity. All but one of the assaults occurred prior to 2004. The last was an assault causing bodily harm committed on November 21, 2019.
[19] He has one conviction for criminal negligence causing death, and a related conviction for leaving the scene of an accident, both on January 1, 2010. Those convictions were recorded in December 2011 and Mr. Young’s sentence included a 10-year driving prohibition. He was convicted subsequently of driving while disqualified on three occasions, in April and June 2015, and August 2016.
[20] Mr. Young has seven convictions for property offences including theft, possession of stolen property, breaking and entering with intent to commit an indictable offence, robbery, and mischief. As with the assault convictions, all but one of these precedes 2004. The exception is a robbery conviction where the offence was committed on January 1, 2017.
[21] Mr. Young has two convictions for offences involving drugs or alcohol, both dated. One is a conviction for driving under the influence of alcohol in 2004, and the other is a conviction in 2007 for possession of drugs for the purpose of trafficking.
[22] Finally, Mr. Young has 12 convictions for what I will term compliance offences, that is, offences involving noncompliance with lawful requirements imposed upon him by police officers, correctional institutions and courts. All but one of these precede 2005. The exception is a conviction in January 2017 for failing to appear in court as required.
Analysis
[23] I reject the Crown’s argument that nothing should be redacted from the record because, taken as a whole, it discloses a pattern of disregard for the law and the moral values accepted by society. The same could be said of any extensive criminal record. The lesson I take from the authorities is that, in examining a criminal record on a Corbett application, one cannot paint with a broad brush. It is necessary to consider with particularity the nature of the offences, the timing, and so on. The broad approach advocated by the Crown flirts with the very risk – inferring a propensity to commit the offence in issue in this case from a record of past offences – that a Corbett application is intended to avoid.
[24] The greater part of Mr. Young’s criminal record involves offences committed prior to 2005, which is the year he turned 25. I think that part of the record carries relatively little weight in this case because it is so dated and because much of it is closely associated with his awful upbringing to which his Indigenous background has contributed. The extent to which these dated offences support an inference that he will not give truthful evidence under oath is limited, and it is outweighed by the prejudicial effect if the convictions – particularly the old assault convictions – are taken into account.
[25] On the other hand, I think there is sufficient probative weight associated with Mr. Young’s recent convictions that it is just that the Crown be permitted to make use of them in cross-examination. By 2015, Mr. Young was in his mid-thirties, married, and in counselling. His three convictions in 2015 and 2016 for driving while disqualified could be taken to evince a disrespect for the law, as could his 2017 conviction for a failure to appear in court. His 2018 robbery conviction is significant because robbery is a crime of dishonesty and the use of force, manifesting a marked disrespect for the property rights of others. His 2019 conviction for assault causing bodily harm does not involve a crime of dishonesty, but is recent enough to carry some weight in consideration of Mr. Young’s testimonial credibility. In relation to all these offences, but especially the robbery and assault convictions, I can instruct myself, in my capacity as trier of fact, to beware not to draw an inference as to a propensity to commit the aggravated assault with which Mr. Young is now charged.
Prosecuting and Defending Drug Cases: A Practitioner’s Handbook
By Jeremy Streeter, Nathan Gorham, & Breana Vandebeek
