The Defence Toolkit – March 27, 2021

This week’s top three summaries: R v Yerxa, 2021 ONSC 1821: false #confession, R v Denis, 2021 MBQB 39: #breathalyzer certificate, and R v Kainth, 2021 ONSC 1941: luring #entrapment.

R v Yerxa, 2021 ONSC 1821

[March 16, 2021] False Confessions, Intentional Fabrications [Justice J. Fregeau]

AUTHOR’S NOTE: People confess falsely for any number of reasons. This case lists most of them and also lists ones that will still survive the inspection of a judge under the voluntariness rule.  In the end, the result in this case was an acquittal in a case tried almost exclusively on the power of alleged confessions.  Lack of corroboration for the inculpatory parts of the statement was key to the result. It is a good factual case for defence counsel to use to demonstrate that true confessions are hard to find.

Moreover, the case deals with a Crown application to use inconsistent accused statements as evidence of intentional fabrication (ie. evidence that can be used to prove the offence as opposed to merely challenge credibility in cross-examination). Evidence of fabrication must be independent of the evidence that merely contradicts or discredits the exculpatory statement offered by the accused. This is because a merely disbelieved statement cannot be used to inculpate the accused. 

Overview

[1] The accused stands charged with manslaughter in relation to the stabbing death of George Tait in Sioux Lookout on September 5, 2018.

The Evidentiary Use of Confessions

[130] It has long been established that where the Crown tenders an accused’s out-of-court statement which contains both inculpatory and exculpatory information, it must tender the entire statement, and the exculpatory portions are substantively admissible in favour of the accused: see R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111, at para. 37.

[132] Where an accused’s statement contains both inculpatory and exculpatory parts, the exculpatory portion of the accused’s statement only need raise a reasonable doubt even if it is not believed to be true.  The inculpatory portion of an accused’s statement can only support the Crown’s case if the trier of fact is satisfied of its truth beyond a reasonable doubt: see R. v Harrison, 2001 BCCA 272, 87 B.C.L.R. (3d) 313, at para. 44.

[133] In R. v. Bucik, 2011 ONCA 546, 274 C.C.C. (3d) 421, at paras. 31 and 32, the Ontario Court of Appeal was critical of the portion of the trial judge’s jury charge explaining how the jury should consider the exculpatory parts of an accused’s out of court statement.  The court explained that the jury should have been instructed that the exculpatory portion of the accused’s statement had potential value for the defence, even if it was not believed, as long as it was not rejected by the jury as untrue.

[135] A trier of fact’s evaluation of the truthfulness of an accused’s confession in the context of an alleged false confession must consider all of the independent evidence confirming or undermining the reliability of the accused’s admission of responsibility: see R. v. Fry, 2011 BCCA 381, 311 B.C.A.C. 90, at para. 55.

[136] In Canadian law, there is a well-established distinction between an exculpatory statement by an accused that is disbelieved and one that is determined to have been fabricated or concocted to avoid culpability: see R. v. Wright, 2017 ONCA 560, 354 C.C.C. (3d) 377, at para. 38.  The importance of this distinction lies in the fact that while a statement that “is merely disbelieved is not evidence that strengthens the Crown’s case”, a statement that has been deliberately concocted can be capable of supporting an inference of guilt: R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.), at para 38.  In other words, where the Crown can prove that an accused’s exculpatory statement was not simply untrue, but an intentional fabrication, the trier of fact is entitled to draw an inference that the accused lied to conceal their guilt: see R. v. Al-Enzi, 2021 ONCA 81, at para. 38.

[137] In order to prove an intentional fabrication, the Crown must adduce evidence of that fabrication, independent of the evidence that contradicts or discredits the exculpatory statement:  Al-Enzi, at para. 39.  However, in R. v. Ching, 2019 ONCA 619, 378 C.C.C. (3d) 284, at para. 47, the Ontario Court of Appeal held that:

Independent evidence of concoction can…be found in the very content of the impugned statements, depending on the context in which they were made.  Independent, in this sense, means that the evidence of concoction is separate from the evidence of guilt, not necessarily separate from the statements themselves.  For example, where an accused had made contradictory exculpatory statements, the self-contradiction of an accused may constitute independent evidence of fabrication.  [Citations omitted.]

[138] In Al-Enzi, the Ontario Court of Appeal, at para. 41, instructed that where such independent evidence of fabrication exists, the following principles should be applied by the trier of fact:

1.     The trier of fact may, but does not have to, disbelieve the accused’s exculpatory statement;
2.     If the statement is disbelieved, is there other, independent evidence upon which the trier of fact may, but does not have to, find that the accused fabricated the exculpatory statement;
3.     If, on the basis of the independent evidence, the trier of fact does not find that the accused fabricated the statement, the statement must be ignored and treated as if it had never been made;
4.     By contrast, if the trier of fact does find that the accused fabricated the statement, they may consider the reason why the accused fabricated the statement, including whether it was to conceal their involvement in the offence charged.  This determination must be made in light of all the evidence.

The Phenomenon of False Confessions

[141] In R. v. Pearce, 2014 MBCA 70, 318 C.C.C. (3d) 372, the Manitoba Court of Appeal, in ordering a new trial, found that in the context of that case, the trial judge should have cautioned the jury about the phenomenon of false confessions in order to ensure a fair trial.

[142] In Pearce, at paras. 48-60, the Manitoba Court of Appeal devoted extensive obiter discussion to the phenomenon of false confessions, the salient points of which are as follows (all citations omitted):

•         A confession is like no other evidence.  Our system of justice accepts that an accused can be convicted solely on the basis of their own confession without any confirmatory evidence of its truth.  A confession is seen as such a powerful piece of evidence because of the logic that an innocent person is unlikely to incriminate themselves;

•         In R. v. Oickle, the Supreme Court of Canada recognized that false confessions during police interrogations do occur and can contribute to wrongful convictions.  The Supreme Court recognized the phenomenon as counterintuitive in nature, which can lead to miscarriages of justice;

•         The scant empirical evidence about the phenomenon of false confessions that does exist suggests that the phenomenon is real and cannot be ignored;

•         Why someone would falsely confess to a crime is often difficult to pinpoint.  Causes of a false confession in the context of a custodial interrogation are often a combination of factors such as: (1) the vulnerability of a suspect (e.g., low intelligence, poor memory, mental illness, youth or extreme age, a significant personality trait or disorder, the fulfillment of a psychological need such as a desire for notoriety); (2) the circumstances and nature of the custodial confinement and interrogation; and (3) the manner of police interrogation (e.g., the use of fabricated evidence);

•         Not every false confession is a result of the police inducing the innocent to say they are guilty.  Some false confessions are made voluntarily and for a deliberate purpose;

•         Our system of justice accepts that police interrogation of a suspect, when properly done, is a fruitful source of information to solve crimes.  Together with that willingness to rely on confessions as evidence, however, is the countervailing desire to ensure that claims of false confessions have a fair process to ensure their proper adjudication;

•         Not all claims of false confessions can be properly adjudicated by application of the confessions rule which focusses on the issue of voluntariness and is limited to statements made to persons in authority.  There are examples of false confessions that may not be excluded from being admitted into evidence by the confessions rule, for example:  false confessions without external pressure because of an ulterior purpose (notoriety, to relieve guilt, illness or a disorder, or to protect another); false confessions to escape the pressure of police interrogation; and false confessions because of being temporarily persuaded of guilt by a skilful interrogator.

Analysis

[143] The Crown’s case is based almost exclusively on the inculpatory portion of the accused’s March 27, 2019 statement to D/S Buckmuller. For the purposes of this analysis, the March 27, 2019 statement of the accused can be divided into three parts:

1. The accused initially told D/S Buckmuller that he had been drinking in Kejick Bay on September 5, 2018, and that he woke up on September 6, 2018, at the home of Derwin Littledeer. When he awoke, the accused noticed that people had been messaging him about “a stabbing”. The accused was specifically asked by D/S Buckmuller if he had been in Sioux Lookout on September 5, 2018, and he told her that he had not. When asked if there was anyone who could “alibi [him] for September 5, the accused told D/S Buckmuller that Stephanie Bird had dropped him off in Kejick Bay around 4:00 – 4:30 p.m. that day and that he went out to “res parties” with Cheyenne Trout after that. (“Statement #1”);

2. The accused next told D/S Buckmuller that he had been in Sioux Lookout on September 5, 2018. He provided a detailed itinerary of his movements that day. Specifically, he told D/S Buckmuller that he had been drinking at Danielle’s home, located at 51A 7th Ave., between 10:00 a.m. and 2:00 p.m., that he visited Stephanie Bird’s father at the local hospital from 2:00 p.m. to 4:00 p.m. and that he was then picked up by Ms. Bird and her boyfriend “Birdman” at approximately 4:00 p.m. The accused told D/S Buckmuller that he and his companions then went to the liquor store in Hudson to purchase liquor prior to returning to Kejick Bay at approximately 5:00 p.m., September 5, 2018 (“Statement #2”); and

3. Finally, the accused told D/S Buckmuller that he had encountered George Tait in Sioux Lookout during the evening of September 5, 2018, after having completed a drug transaction at Tim Hortons. The accused told D/S Buckmuller that George Tait attacked him and that he panicked, reached into his pocket for his knife and stabbed George Tait twice. When asked to do so, the accused pointed out the location of this altercation on a sketch drafted by D/S Buckmuller. The accused further told D/S Buckmuller that, after his altercation with George Tait, he went to Danielle’s, where he saw Danielle and cleaned up before being picked up by Ms. Bird. The accused told D/S Buckmuller he was at Danielle’s at “about 9:30 [p.m.]” and that Ms. Bird picked him up at “10:00 or 11:00 [p.m.]” (“Statement #3”).

[144] As can be seen, Statement #3 contains both inculpatory and exculpatory evidence.

[145] There is no independent evidence confirming or undermining the accuracy or reliability of Statement #1, wherein the accused said that he had not been in Sioux Lookout on September 5, 2018.

[146] Specifically, there is no evidence from Ms. Bird, whom the accused initially said dropped him off in Kejick Bay around 4:00 or 4:30 p.m. on September 5, 2018. There is no evidence from Ms. Trout, with whom the accused said that he went to “res parties” that night. There is no evidence from Derwin Littledeer, at whose home the accused said he stayed at overnight on September 5, 2018.

[147] There is also no independent evidence confirming or undermining the accuracy or reliability of Statement #2, in which the accused said that he had been in Sioux Lookout on September 5, 2018, but that he had left town at about 4:00 p.m. As set out above, the accused told D/S Buckmuller that he had been drinking at Danielle’s between 10:00 a.m. and 2:00 p.m. that day before visiting Ms. Bird’s father at the hospital between 2:00 p.m. and 4:00 p.m., and then being picked up by Ms. Bird and “Birdman”, leaving Sioux Lookout and travelling to Hudson to buy liquor before returning to Kejick Bay.

[148] Specifically, there is no evidence from Danielle, Ms. Bird, her father or “Birdman”, nor is there any evidence either confirming or refuting the accused’s attendance at the Sioux Lookout hospital or his alleged purchase at the Hudson liquor store.

[149] However, Statement #1 and Statement #2, which are exculpatory and essentially present two different versions of an alibi, are contradictory and internally inconsistent. In Statement #1, the accused said that he had not been in Sioux Lookout on September 5, 2018. In Statement #2, the accused told D/S Buckmuller that he had been in Sioux Lookout on September 5, 2018, but that he left town hours before George Tait was stabbed. In both, he provided alibi information to D/S Buckmuller.

[150] The contradictory, exculpatory statements made by the accused to D/S Buckmuller. cannot both be true. As a result of their contradictory nature, I do not believe Statement #1 or Statement #2, nor am I left in a reasonable doubt by those Statements.

[151] However, the Crown’s case is devoid of any evidence refuting either Statement #1 or Statement #2. More specifically, there is no independent evidence establishing that these statements were intentional fabrications on the part of the accused. The complete absence of such evidence is puzzling, to say the least.

[152] I recognize that pursuant to Ching, an accused’s self-contradiction alone, within a single statement, may constitute independent evidence of fabrication. However, in the absence of any independent evidence refuting the alibi evidence in either Statement #1 or Statement #2, I am not prepared to conclude that the accused fabricated Statements #1 and #2 such that an inference of guilt can be drawn from the self-contradiction alone.

[153] In these circumstances I conclude that Statement #1 and Statement #2 must be ignored and treated as if they had never been made.

[154] Statement #3 is both inculpatory and exculpatory. In Statement #3, the accused told D/S Buckmuller that he stabbed George Tait “twice”. He also told D/S Buckmuller that he did so in response to being attacked and struck multiple times by George Tait. In other words, he said that he was defending or protecting himself from George Tait.

[156] The independent evidence supporting the reliability of the inculpatory portion of Statement #3 consists of:

1. The September 14, 2018 text messages between the accused and his sister and mother;

2. The information that he provided to D/S Buckmuller as to the exact location on 7 th Ave. where he stabbed George Tait;

3. The evidence of Ethan Goodwin;

4. The evidence of Conrad Trout; and

5. His statement to D/S Buckmuller that he stabbed George Tait “in the front”.

[157] The most significant portions of the accused’s text messages to his sister were:

• Im gonna go to jail for a while;
• 15-25 years if I get caught;
• All I can say is this persons no longer with us. Now delete these texts; and
• Yes I was [in Sioux Lookout] that morning (in response to his sister asking if the texts had something to do with “that guy who died in Sioux”).

[158] The most significant portions of accused’s text messages to his mother were:

• The hardest part of this is saying good bye to you;
• As for myself its jail for awhile or death N jail may seem ideal; and
• But not when ur locked up for 25 years.

[159] I reject the Crown’s suggestion that the accused’s September 14, 2018 text messages to his sister and mother amount to “confessions”. I also reject the defence submission that, between September 5, 2018, and September 14, 2018, the accused may have come to believe that he was involved in the stabbing of George Tait because he was possibly suffering from a drug induced psychosis at the time. While I accept that the accused was abusing both alcohol and crystal meth at that time, there is no evidentiary foundation to support the submission that he was psychotic or delusional at this or any other time.

[160] The meaning of these text messages is unclear, as is the accused’s condition at the time he sent them. At one point in the interview, the accused told D/S Buckmuller that he “was intoxicated” at the time he sent the text messages to his sister and mother. Later in the interview, the accused told D/S Buckmuller that “I coulda just been drunk and lying…to my mother and sister.”

[161] However, within these text messages, sent nine days after the stabbing of George Tait in Sioux Lookout, is an acknowledgement by the accused that his communication is in relation to “that guy that died in Sioux”, that he was in Sioux Lookout “that morning” and that he would be serving a very considerable custodial sentence if he “get[s] caught”. Further, in both the messages to his sister and mother, the accused is essentially saying goodbye and that he would miss them.

[162] In my view, the timing and content of these messages indicates a consciousness of guilt on the part of the accused in relation to a recent stabbing death in Sioux Lookout. I find that the content of the accused’s text messages to his sister and mother support the reliability of the inculpatory portion of Statement #3.

[167] The best that I can conclude from the evidence as to location is that the accused, within the inculpatory portion of Statement #3, correctly identified the general location on 7 th Ave. where George Tait was stabbed. This evidence also tends to support the reliability of the inculpatory portion of Statement #3.

[173] Finally, the accused told D/S Buckmuller that he had stabbed George Tait “in the front”. This fact was not supplied to the accused by D/S Buckmuller. George Tait had in fact been stabbed on the front of his body. This tends to support the reliability of the inculpatory portion of Statement #3.

[174] The independent evidence, or absence of evidence, tending to undermine the reliability of the inculpatory portion of Statement #3, and which is suggested to raise a reasonable doubt as to the truthfulness of it, consists of:

1. The accused’s statement that he stabbed George Tait twice;

2. The lack of any evidence – eyewitness, video surveillance, cell phone, forensic – placing the accused in Sioux Lookout at any point in time on September 5, 2018; and

3. The evidence relating to Mr. Kanate and Mr. Kejick.

[176] In my view, there is both a quantitative and a qualitative difference between stabbing someone twice and stabbing someone seven times. Investigators in this case summarily rejected as untruthful Jerico Winter’s confession to the stabbing of George Tait, one reason being that he told investigators that he had stabbed George Tait twice.

[177] The accused’s statement that he stabbed George Tait twice was substantively inaccurate. In my opinion, it is strong evidence undermining the reliability of the inculpatory portion of Statement #3.

[178] The accused also told D/S Buckmuller that he walked to Ms. McKay’s at 51A 7 th Ave., after stabbing George Tait, saw Danielle while there and was picked up by Ms. Bird later that evening. This court has not heard from either Danielle McKay or Stephanie Bird nor heard evidence of any attempt to obtain evidence from them which could potentially confirm what the accused said. In my opinion, the absence of such evidence undermines the reliability of the inculpatory portion of Statement #3.

[181] None of the video footage seized by investigators captured the accused in Sioux Lookout at any time on September 5, 2018. There is no cell phone or other electronic evidence placing the accused in Sioux Lookout on September 5, 2018. There is no forensic evidence linking the accused to the stabbing of George Tait. There is no eyewitness evidence, from police officers or civilians, putting the accused anywhere on 7 th Ave. on September 5, 2018, despite the fact that officers Capone and Grant patrolled 7 th Ave. between 8:30 p.m. and 8:55 p.m. that evening in search of Mr. Kanate.

[182] In my opinion, it is logical and reasonable to expect that there should be some evidence, independent of the accused’s statement, which at the very least confirms the presence of the accused in Sioux Lookout on the day that George Tait was stabbed. The complete absence of any such evidence undermines the reliability of the inculpatory portion of Statement #3.

[183] The Crown’s case confirms the presence of Mr. Kanate and Mr. Kejick in the general area where George Tait was stabbed at or near the approximate time of the stabbing.

[184] The evidence establishes that Mr. Kanate was with Ms. Bunting in the area of 51A 7th Ave., at approximately 8:30 p.m., September 5, 2018. The Agreed Statement of Facts establishes that Mr. Kanate’s criminal record includes convictions for assault causing bodily harm in 2008, possession of a weapon in 2017 and manslaughter in 2011 arising from a stabbing. The evidence also establishes that Mr. Kanate had been drinking during the day and early evening of September 5, 2018, was engaged in an altercation with Ms. Bunting, departed the scene when police attended at this altercation at 8:22 p.m. and was in possession of a knife when arrested at 11:25 p.m., September 5, 2018.

[185] D/S Nichols testified that Mr. Kanate was a person of interest in the stabbing death of George Tait because of these facts.

[189] I find that it is reasonable to apply the evidence pertaining to Mr. Kanate and Mr. Kejick, together with all other evidence, to the analysis of whether the Crown has proven the truth of the inculpatory portion of Statement #3. I find that the presence of these individuals, particularly that of Mr. Kanate, in the area of the stabbing at around the approximate time of the stabbing, is a factor undermining the reliability of the inculpatory portion of Statement #3.

[190] The inculpatory portion of Statement #3 can only support the Crown’s case if I am satisfied of its truth beyond a reasonable doubt. I have considered, weighed and balanced all independent evidence which supports or undermines the reliability of the accused’s admission that he stabbed George Tait. As a reasonable doubt can also arise from the absence of evidence, I have also considered the absence of evidence that, logically and reasonably, should have been present in this case.

[191] The most significant evidence supporting the reliability of the inculpatory portion of Statement #3 is the accused’s September 14, 2018 text messages to his sister and mother and the contents of his statement as to the location on 7 th Ave. of the stabbing of George Tait. The most significant evidence undermining the reliability of the inculpatory portion of Statement #3 is his statement that he stabbed George Tait twice, the evidence about Mr. Kanate and the absence of any evidence of any type establishing the presence of the accused in Sioux Lookout at any time on September 5, 2018.

[192] At the end of the day, balancing the above, I am not satisfied beyond a reasonable doubt of the truthfulness of the inculpatory portion of Statement #3. As the Crown’s case against the accused is based almost exclusively on the inculpatory portion of Statement #3, I find that the Crown has not discharged their burden of proving the guilt of the accused beyond a reasonable doubt. The accused is therefore found not guilty.

[In the alternative, the Court used the exculpatory parts of statement #3 to find that the accused acted in self-defence]

R v Denis, 2021 MBQB 39

[February 25, 2021] Certificate of a Qualified Tech – The Alcohol Standard Solution [McKelvey J. ]

AUTHOR’S NOTE: The Certificate of a Qualified Tech is the shortcut available to the Crown to prove that the breathalyzer readings are accurate readings of blood alcohol levels in the test subject. The changes to the legislation in 2018 made it necessary for these certificates to indicate that the alcohol standard solution was certified by an analyst (unlike the prior legislation). Consequently, a number of cases have wound through the system without the required new wording from before the change. The change applied trials of matters predating the legislative change. So, assuming the certificates are now up-to-date, this should not be an issue in most new prosecutions. However, it is important to maintain this knowledge, in case the forms are not up to snuff or their introduction is not permitted in a case for other reasons (like service). 

Introduction

[1] The Appellant seeks to appeal his conviction with respect to operating a motor vehicle with a blood alcohol level exceeding the legal limit (s. 253(1)(b) of the Criminal Code of Canada, R.S.C., 1985, c. C-46). The conviction was entered on March 9, 2020, with a sentence imposed of a one thousand dollar fine with three months’ time to pay accorded, along with a one-year driving prohibition. The grounds of appeal are (Document No. 14, para. 17):

The Learned Trial Judge erred in finding that the Crown had proven compliance with section 320.31(1)(a), in particular that the alcohol standard was certified by an analyst.

The relief sought is the quashing of the conviction and the ordering of an acquittal.

Background

[3] The blood alcohol results were entered during the Provincial Court trial through the Qualified Technician Certificate (“Certificate”) (Document No. 13, p. 7). The qualified technician, Doug McKane (“McKane”), was not called to testify. The Appellant unsuccessfully argued a number of different positions before the learned trial judge, including the issue under appeal.

[4] In 2018, the Criminal Code of Canada underwent significant alterations with respect to offences relating to conveyances (ss. 320.11–320.14). The declaration set out in s. 320.12 recognizes the importance and privilege of operating a conveyance in our society and the rules that must attach to that privilege related to the need to maintain sobriety. These amendments were, in part, directed towards simplifying investigations and prosecutions for such offences (Bill C-46). Section 32(2) of Bill C-46 stipulated that the new provisions under s. 320.31 were to be applied retroactively to proceedings instituted before the amendments came into force on December 18, 2018:

Subsection 320.31(1) of the Criminal Code, as enacted by section 15 of this Act, applies to the trial of an accused that is commenced on or after the day on which that section 15 comes into force if the sample or samples to which the trial relates were taken before that day.

Consequently, this case must be considered in the context of s. 320.31 and not the law as it existed at the time of the October 7, 2018 offence. This is a transitional case to which the presumption of accuracy applies as established by s. 320.31(1). Accordingly, the Crown must prove three criteria (s. 320.31(1)(a)-(c)) with respect to the taking of breath samples in order to satisfy the presumption of accuracy. When able to do so, the results of the analyses of these samples will constitute conclusive proof of the person’s blood alcohol concentration. The Appellant contends that proof of compliance with s. 320.31(1)(a) has not been satisfied. Section 320.31(1) reads as follows:

Breath samples

320.31(1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if

(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;

(b) there was an interval of at least 15 minutes between the times when the samples were taken; and

(c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.

The section provides an evidentiary shortcut that establishes that breath test results are accurate when the required criteria has been satisfied

[5] The Certificate, signed by McKane, was marked as an exhibit at the Appellant’s 2019 trial. McKane was a technician designated pursuant to s. 320.11 as being qualified to operate the Intox EC/IR II, being an approved breath test instrument. He certified that a demand under s. 320.28(1) was made and two samples of the Appellant’s breath were collected enabling a proper analysis. McKane further certified that the instrument was in proper working order “… by means of an alcohol standard which was suitable for use in the said approved instrument and identified as AIRGAS, lot AG705901” (Document No. 13, p. 7). The two readings were as follows:

1) 1:36 a.m. – 100 milligrams of alcohol in 100 millilitres of blood;

2) 1:59 a.m. – 90 milligrams of alcohol in 100 millilitres of blood.

McKane also certified that prior to taking each of the samples he had conducted a system blank test with the results being not more than 10 milligrams of alcohol in 100 millilitres of blood. Further, “… prior to each of the above samples being taken, I conducted a system calibration check, the results of which were within 10% of the target value of an alcohol standard”.

[6] … In reviewing all the evidence and relevant case law, the learned trial judge was satisfied, beyond a reasonable doubt, that the Crown had proven the case against the Appellant who was found to have operated a motor vehicle when his blood alcohol level exceeded 80 milligrams in 100 millilitres of blood.

[10] I have concluded that the issue before me relates to the proper interpretation of the statutory requirements as stipulated in s. 320.31(1)(a) of the Criminal Code. Accordingly, this is a question of law and reviewable on the correctness standard.

The Argument

[11] The Appellant relies upon decisions such as R. v. Afriyie, 2020 ONSC 2894 (CanLII); R. v. Does, 2019 ONCJ 233 (CanLII); and, Goldson ABQB in submitting that there was no viva voce evidence from McKane concerning certification of the alcohol standard by an analyst, no Certificate of Analyst filed, nor mention of certification by an analyst in the filed Certificate.  Consequently, there was nothing upon which the learned trial judge could properly conclude that the Crown had satisfied the three presumption of accuracy criteria.  Accordingly, the Appellant seeks to quash the conviction.

Issued Defined

[13] What are the proof requirements of the Crown in a transitional case surrounding the four words certified by an analyst in s. 320.31(1)(a)?

• Does it require that a Certificate of Analyst be filed?
• Does it require viva voce evidence from an analyst?
• Must the qualified technician testify with respect to his/her knowledge and/or experience surrounding the alcohol standard as certified by an analyst?
• Is the Certificate of a Qualified Technician, as it existed in this case, sufficient, or is specific mention required as to the alcohol standard being certified by an analyst?

The Law

[14] … In this case, only the presumption stated in 320.31(1)(a) is under appeal, being:

(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst.

[emphasis added]

[17] There have been a number of decisions on these transitional cases with varied determinations across Canada with respect to the interpretation of the “certified by an analyst” requirement in s. 320.31(1)(a). Further, none of those decisions have reflected the fact scenario present here where only the Certificate was filed as an exhibit without the viva voce testimony of the qualified technician or something more of an evidentiary nature.  It is noteworthy that in a non‑transitional case, the Crown is required to provide a Certificate of Analyst (s. 320.34(1)(e).

[19] Justice Pentelechuk of the Alberta Court of Appeal determined that there was uncertainty in the jurisprudence on this issue and, accordingly, granted leave to appeal of Goldson ABQB on a question of law – being the proper interpretation of “certified by an analyst” in s. 320.31(1)(a) and whether the Crown must tender evidence from an analyst, whether by viva voce testimony or through a Certificate of Analyst, to prove the requirements of the section (appeal heard November 2020).

Analysis

[19] In cases prosecuted before the December 2018 amendments, a filing of certificate of the Qualified Breath Technician satisfied the statutory pre‑conditions to the presumption of accuracy.  Now, something more is required either in the form of the Certificate of the Analyst or viva voce evidence concerning the analyst’s certification of the alcohol standard. That “something more” was present in the case before De Filippis J. in Does, as it was before Kenkel J. in R. v. McRae, [2019] O.J. No. 2493 (C.J.) and Rose J. in  R. v. Porchetta, [2019] O.J. No. 1985 (C.J.). In other words, in those cases there was evidence that the breath technician viewed the certificate of analyst and there was some evidence the solution was certified. I do not have that evidence before me.

[31] Section 320.31(1)(a) requires, as one of the criterion, that the alcohol standard be certified by an analyst. This fact can be proven through direct or circumstantial evidence, as was well set out by the learned trial judge. In the absence of direct evidence that the solution used by McKane was “certified by an analyst”, the question is whether, based on the Certificate, can it be inferred that it was properly certified? McKane certified that the alcohol standard was “suitable for use in the said approved instrument and identified as AIRGAS, lot AG705901”. However, no specific mention was made in the Certificate that the alcohol solution was certified by an analyst. In those cases prosecuted before the amendments, a filing of the Certificate of the Qualified Breath Technician served to satisfy the existing statutory preconditions of the presumption of accuracy. Previously, presumptions of identity and accuracy were paramount (s. 258); however, these were replaced by the s. 320.31(1) presumption of accuracy.

[34] While I agree with the tenor of the learned trial judge’s decision related to the creation of undue technicalities, the inference drawn cannot be elongated to the extent suggested. The criteria of the s. 320.31(1) presumption of accuracy must be satisfied before the inference suggested by the learned trial judge can be drawn. The pre-requisites to the presumption cannot be met by a review of this Certificate. It is the quality of the presented evidence that is of paramount importance. The fact that the approved instrument was working properly and all testing procedures had been satisfied does not equate with the prescribed s. 320.31(1)(a) criteria being met. There is no issue with respect to the integrity of the instrument, or the expertise of the technician who operated it.

[35] I am satisfied that the inference cannot be properly drawn without the evidential foundation of the alcohol solution being certified by an analyst – something more was needed.  As was found in the Goldson ABQB decision:

[45] The evidence of the qualified technician for these conditions, whether by way of viva voce evidence or by tendering a certificate of qualified technician, is sufficient. As stated in R v Hanna, 2019 ABPC 157 at para 40, “[i]f one reads s. 320.31 in its totality, it is clear that all the pre-requisites listed therein can be proven through the evidence of the qualified technician, as has always been the case.” If the evidence of the qualified technician is accepted for the conditions set out in section 320.31(1)(b) and (c), then evidence of the qualified technician on whether the alcohol standard was certified by an analyst must also be accepted for the condition set out in 320.31(1)(a), without the Crown needing to tender the certificate of analyst. This interpretation is consistent with Parliament’s intention to simplify and streamline prosecutions.

Additionally, Justice Ho stated:

[60] The Amending Act is silent on whether the qualified technician’s viva voce evidence is admissible. In transitional cases, the admissibility of the viva voce evidence of the qualified technician is particularly relevant because the certificates of qualified technician relied on at the time of the charge did not contain the new conditions from the Amending Act, i.e. did not indicate that the alcohol standard used was certified by an analyst. Section 320.31(1) applies to transitional cases as per the transitional provision under section 32(2). Therefore, the Crown is required to call the viva voce evidence of the qualified technician at trial when the certificate of the qualified technician does not speak to the new conditions. Otherwise, the Crown cannot rely on the presumption of accuracy.

[36]         As indicated, the Certificate does not stipulate that the alcohol standard was certified by an analyst, albeit such an inference could, arguably, be drawn as was done by the learned trial judge.  Why else would it be used by the qualified technician?  However, the proper foundation for such an inference was not proven by the evidence.  Without question, a Certificate of Analyst could have been filed by the Crown to satisfy this issue, or an analyst called, or McKane could have provided testimony as to his knowledge of the Certificate of Analyst.  In those instances, there would be some reliable evidence before the court. None of these avenues were undertaken, nor would they have been onerous.  I have concluded that the presumption of accuracy under s. 320.31(1)(a) has not been satisfied in this transitional case.

[37]         The case law, in transitional matters, has demonstrated the need that there be some evidence that consideration of a Certificate of Analyst was undertaken in relation to the alcohol standard.  There needed to be something more to show that McKane had satisfied himself as to the appropriate certification having been made by an analyst.  As indicated, this could have been proven simply by so stating within the Certificate or undertaking the other stipulated avenues.  Transitional cases such as this are dependent on the quality of the evidence in order to ensure the three criteria to establish the presumption of accuracy have been proven.  There must be an adherence to safeguards to ensure the standards surrounding the presumptions are maintained.  This Certificate makes no mention of the certification of the alcohol standard by an analyst.  As indicated, I am satisfied that a pre-condition to the operation of the presumption of accuracy has not been established.  Accordingly, with the standard of review being that of correctness, the decision of the learned trial judge must be overturned.

Conclusion

[39] I am satisfied that the learned trial judge erred in her interpretation or application of s. 320.31 in this transitional case. The appeal is allowed and the conviction is quashed.

R v Kainth, 2021 ONSC 1941

[March 15, 2021] Entrapment: Internet Luring [D.E. Harris J.]

AUTHOR’S NOTE: This case gives a great overview of the new SCC authorities on entrapment and applies them to the offence of internet child luring. Here the police had bare suspicion that offenders have moved from Craigslist over to a new service and engaged in random virtue testing by posing as a 14-year-old girl (by virtue of the online handle the officer chose) and engaging someone who posted an ad looking for sex but with nothing obviously suggesting under-age sex. 

Overview

[1] Ravinder Kainth is guilty of the criminal offence of child luring contrary to Section 172.1(2)(b) of the Criminal Code R.S.C. 1985, Chap. 46. He admitted his guilt in this hearing. However, he argues that the proceedings should be stayed for abuse of process. He was entrapped by the police.

[2] I agree with the Applicant. This is a clear-cut case of the police overstepping the line and engaging in random virtue testing contrary to recent controlling authority from the Supreme Court. The application must be allowed and the prosecution stayed.

Facts

[3] On November 13, 2018, Cst. Losier from the Internet Child Exploitation unit of the Peel Regional Police conducted an online undercover investigation. Cst. Losier has extensive training in combatting internet child exploitation. The website on which she was conducting her investigation was www.locanto.com (“Locanto”). This is an online classified advertisement website which includes a section for advertising casual sexual encounters. The officer was posing as a 14-year-old girl with the username “kitykaty14.”

[5] The Applicant Ravinder Kainth posted an advertisement on Locanto with a username of “Indiandesi90” in the casual encounter section of the website on November 6, 2018. His advertisement, “Ad ID: 3099373811”, had the subject heading “Male looking for a hot girl – 32.” In it the Applicant wrote,

Hi..im looking a [sic] hot girl in brampton area for oral sex ..im available day and night. I can’t host ….. reply.

[6] Cst. Losier replied,

hi I just saw ur ad im 14.. how r u?

[7] The accused then asked whether she was in Brampton, stated that he was in Brampton and provided his phone number. In the ensuing conversation, the Applicant proved very enthusiastic about pursuing oral sex with a 14-year-old girl. The conversation continued for some time between the two.

[8] Eventually, they arranged to meet for sexual activity. The Applicant was arrested when he arrived at the meeting place. He was charged with child luring. The indictment charges three counts of luring under Section 171.1(2)(b) in three different but closely related ways.

[9] The Applicant was the first person arrested as a result of a Locanto investigation. Cst. Losier, however, had responded to ads and chatted with other individuals prior to the Applicant’s arrest.

The Law

[10] Entrapment is a branch of the doctrine of abuse of process. The prohibition against entrapment emanates from the necessity of protecting the system of criminal justice from falling into disrepute. Justice Frankfurter said in Sherman v. United States, 356 U.S. 369 (1958) and it was adopted by our Supreme Court in the leading entrapment case of R. v. Mack 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903 at para. 51,

Public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake.

[11] The concept underlying entrapment is that the court ought not to condone law enforcement authorities manufacturing, encouraging or baiting individuals to commit criminal offences. Most recently, the Supreme Court held in R. v. Ahmad 2020 SCC 11 (S.C.C.),

1  As state actors, police must respect the rights and freedoms of all Canadians and be accountable to the public they serve and protect. At the same time, police require various investigative techniques to enforce the criminal law. While giving wide latitude to police to investigate crime in the public interest, the law also imposes constraints on certain police methods.

2  … [entrapment] threatens the rule of law, undermines society’s sense of decency, justice and fair play, and amounts to an abuse of the legal process of such significance that, where it is shown to have occurred, a stay of proceedings is required.

[13] There are two modes of entrapment: 1. Providing an opportunity to commit an offence without the police having prior reasonable suspicion of criminal intent; and 2. Law enforcement going beyond providing an opportunity and inducing commission of an offence: Ahmad at para. 15.

[14] This case involves the first type of entrapment, sometimes referred to as random virtue testing: Mack at paras. 108-109. Ahmad is now the leading case. Unfortunately, Cst. Losier did not have the benefit of Ahmad at the time of her investigation. The Ahmad case was released more than a year and a half afterwards.

[15] The two appeals considered by the Supreme Court in Ahmad involved “dial-a-dope” operations in which drug traffickers connected with their customers. In both instances, the police received a bare tip that a particular phone number was being used for drug dealing. A police officer called the number and eventually requested drugs.  In the Ahmad case, it was held that the officer sufficiently corroborated the bare tip during the conversation such that the officer’s eventual request for drugs was predicated on a reasonable suspicion.  In the other appeal heard and decided at the same time, Williams, the Supreme Court held that the tip was not corroborated during the conversation. The police request for drugs, not backed up by prior reasonable suspicion, therefore constituted entrapment.

[16] The Supreme Court’s established a bright line test in Ahmad, centring around whether an opportunity to commit an offence had been offered by the police officer prior to forming grounds of reasonable suspicion. The Court explained the test this way:

63  The determination of whether a police action constitutes an opportunity to commit an offence is informed both by the definition of the offence and the context in which the action occurred. Like other aspects of the entrapment doctrine, it reflects the balance struck between the state’s interest in investigating crime and the law’s constraint against unwarranted intrusion into individuals’ personal lives. In a conversation, an opportunity will be established when an affirmative response to the question posed by the officer could satisfy the material elements of an offence …

64  The inquiry, then, is properly directed to how close the police conduct is to the commission of an offence. To allow the police sufficient flexibility to investigate crime, an officer’s action — to constitute an offer of an opportunity to commit a crime — must therefore be sufficiently proximate to conduct that would satisfy the elements of the offence. For example, in Bayat, Rosenberg J.A. concluded that beginning an online conversation with a target was not an opportunity to commit the offence of child luring. He likened the first contact to a “knock on a door” (para. 19). In his view, that initial contact was too remote from the commission of the offence to constitute the provision of an opportunity to commit an offence (see also R. v. Vezina (A.), 2014 CMAC 3, 461 N.R. 286, at paras. 5-6; Williams (2010), at paras. 45-47). In the particular context of drug trafficking, we would adopt the conclusion reached by Trotter J. at para. 27 of the Williams stay decision: an opportunity to commit an offence is offered when the officer says something to which the accused can commit an offence by simply answering “yes.” In a conversation, an opportunity will be established when an affirmative response to the question posed by the officer could satisfy the material elements of an offence.(Emphasis Added)

[17] While this delineation of the line between what the police can legitimately do and what they cannot do was developed in the context of a “dial-a-dope” investigation, it is applicable to police internet sexual investigations as well: see e.g. R. v. Ghotra, 2020 ONCA 373, [2020] O.J. No. 2650 (Ont.C.A.).

25 [Section] 172.1(1)(c) creates an incipient or “inchoate” offence, that is, a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime. It criminalizes conduct that precedes the commission of the sexual offences to which it refers, and even an attempt to commit them. Nor, indeed, must the offender meet or intend to meet the victim with a view to committing any of the specified secondary offences. This is in keeping with Parliament’s objective to close the cyberspace door before the predator gets in to prey.

…

36 … s. 172.1(1)(c) comprises three elements: (1) an intentional communication by computer; (2) with a person whom the accused knows or believes to be under 14 years of age; (3) for the specific purpose of facilitating the commission of a specified secondary offence …

[20] I conclude that the police lacked reasonable suspicion that the Applicant intended to commit the child luring offence before engaging in internet dialogue with him. The police read the Applicant’s request on a part of the Locanto site which was devoted to arranging casual sexual encounters. There were sexual photographs on the website page upon which the Applicant wrote his query. The query itself was for oral sex. The Applicant was looking for a partner for consensual sexual activity but there is nothing criminal in that. The critical question is whether there was any prior indication that he was interested in sexual activity with a person under the age of 16 years old.

[21] The Crown argued that there was reasonable suspicion in the pertinent sense based on the Applicant’s use of the term “hot girl” in his posted inquiry. Cst. Losier evidence was that she had been trained on the use of language by prospective child sexual offenders. If the ad was looking for a “woman age 18 to 25 years old”, or older, she would not answer it. If the ad sought out a “woman”, she would also not investigate further. If however it mentioned the word “girl” with no age, she would probably answer it. The author could be interested in sexual activity with a child. This is why she answered the Applicant’s ad.

[23] In the case at hand, Cst. Losier stopped well short of saying that use of the word “girl” in the Applicant’s ad was employed in a similar way. The fact is the word “girl” is commonly used in our society for women as well as children and teenagers. This a sexist and misogynist anachronism but nonetheless it remains prevalent. Cst. Losier did not say anything different. While the word “woman” or ages 18 and higher could be eliminated from further investigation, “girl” could not be. That does not indicate that “girl” has a special meaning in the casual sexual encounter world. It did not constitute a clue or a flag that this was a surreptitious request for an underage girl the way the use of the age of 18 was in Argent. It only meant that an interest in sexual activity with an underage female could not be excluded by the investigator. This did not rise to the level of reasonable suspicion.

[24] Nor did the fact that the ad was on Locanto imbue the officer with reasonable suspicion or contribute to such a finding either. The vague unsourced and unsubstantiated information that some child abusers had moved from Craigslist to Locanto was of minimal weight.

[25] I conclude that there was no suspicion objectively viewed to investigate further derived from the Applicant’s ad itself. There being no reasonable suspicion that the Applicant was interested in sexual activity with underage females, attention must turn to the police officer’s response. The question based on Ahmad is whether an affirmative response to the police officer’s reply would satisfy the material elements of the child luring offence.

[26] The police officer indicated that she was 14 years old and her username of “kitykaty14” reinforced this. The response in the context of the ad conveyed that this 14-year-old female was interested in the sexual act proposed by the Applicant. The Applicant posted an invitation; the officer accepted the invitation as a 14-year-old female. The offence was proposed by the police and was nearly complete.

[27] In the language of the offence creating section, once Cst. Losier posted her reply, she had enabled the Applicant to communicate with a person he reasonably believed to be under 16 years of age for the purpose of facilitating a sexual offence. All that was needed to complete the offence was for the Applicant to assent to Cst Losier’s acceptance, thereby indicating his agreement to sexual abuse of a child.

[28] The bright line drawn in Ahmad was crossed. In the sexual context of the communications, the officer could not assert as she did, with no prior reasonable suspicion, that she was 14 years old. To avoid entrapment, the preferences of the Applicant and his proclivities had to be drawn out with guile and subtlety by the officer prior to offering an overt opportunity to commit the offence.

[29] Cst. Losier testified that she waits for the other party to start a sexual conversation; she does not initiate it. But in this context, the sexual context was already a given in view of the content of the Applicant’s ad. In light of that, the officer could not without more simply inject the information that she was 14 years old.

[35] The Court of Appeal’s recent judgment in Ghotra, appeal as of right on this issue to the S.C.C., highlights Officer Losier’s transgression. The Ghotra case was also an internet child luring case. The trial judge had found that,

1. It was the appellant who initiated the conversation with Mia (the police officer posing as a 14-year-old);

2. It was the appellant who asked Mia’s age; and

3. It was the appellant who, being repeatedly told Mia was 14, turned the conversation to sexual inquiries.

[36] This case contrasts with Ghotra in every material feature,

1. The police officer initiated the conversation with the Applicant;

2. The police officer volunteered her age;

3. The Applicant posted a general sexual request but it was the officer who injected the prospect of sex with a child. It was this element which, in context, made the proposed activity a crime.

[37] Put simply, unlike in Ghotra, it was the officer, not the Applicant, who took the lead in turning the conversation to sexual activity with a child: contrast Ghotra at para. 25; R. v. Bayat, 2011 ONCA 778, 108 O.R. (3d) 420 (Ont. C.A.) at para. 21. These two elements–sexual activity and 14 years of age–could not be combined without approaching too close to the commission of the child luring offence.

[38] For these reasons, I conclude that the Applicant was entrapped. In light of the conduct of law enforcement, this court cannot permit its process to be used for this prosecution. It constitutes an abuse of process. Proceedings on the three-count indictment before the court are stayed.