This week’s top three summaries: R v Dillman, 2021 ABQB 363: definition: #firearm, R v Rodriguez, 2021 ABQB 372: #strip search & 10(b), and R v Downey, 2021 NSCA 38: #appeal bail – public interest.
R v Dillman, 2021 ABQB 363
[May 10, 2021] Definition of Firearm & Onus on “Where it is Proved” [Mr. Justice E. J. Simpson]
AUTHOR’S NOTE: This case answers the age-old Alberta question: is a sawed off .22 calibre rife really a firearm? The answer, perhaps unsurprisingly, is only if the Crown proves it is. Justice Simpson places the burden of proving the velocity of the projectiles the item discharges squarely on the plate of the Crown. Citing the expense and complexity of proving what appears to be an exclusion in s.84(3)(d), the court found that this is something the Crown has to prove in order to discharge (pun intended) its onus for the purpose of all firearm offences including: ss. 91-95, 99-101, 103-107, and 117.03. Canada’s Wild West is alive and well. Exercise your carry concealed permit on this one and drop it on the Crown’s desk after they close their case.
Overview and Legal Question
[1] In the trial of this matter, an evidentiary issue arose as to whether the Crown or the Defence bears the onus with respect to the words “where it is proved” in section 84(3)(d)(i) and (ii) of the Criminal Code, RSC 1985, c C-46. The item in question was a sawed off .22 calibre rifle.
[3] That subsection reads as follows:
84(3) For the purposes of sections 91 to 95, 99 to 101, 103 to 107 and 117.03 of this Act and the provisions of the Firearms Act, the following weapons are deemed not to be Firearms:
…
(d) any other barrelled weapon, where it is proved that the weapon is not designed or adapted to discharge
(i) a shot, bullet or other projectile at a muzzle velocity exceeding 152.4 m per second or at a muzzle energy exceeding 5.7 Joules, or
(ii) a shot, bullet or other projectile that is designed or adapted to attain a velocity exceeding 152.4 m per second or an energy exceeding 5.7 Joules.
[4] This subsection applies to offences related to the possession, trafficking, transferring, and importing and exporting of certain Firearms, and the failure to report, or the false reporting of the loss, finding, or destruction of those Firearms – those Firearms being prohibited Firearms, restricted Firearms and non-restricted Firearms without a licence or registration certificate. It deems certain barrelled weapons which discharge a bullet at a velocity of less than 152.4 m/sec or about 500 ft/sec either at the muzzle or at any point thereafter, or have a muzzle energy or flight energy less than 5.7 Joules not to be Firearms.
[5] Therefore, in this case notwithstanding my conclusion to this point regarding the application of the definition of firearm to this barrelled weapon this section may deem the sawed off .22 calibre rifle not a firearm.
[6] This subsection thereby provides an exemption. It exempts anyone possessing a low powered barreled weapon from the requirement of holding a license or other authorization which may be required for a Firearm. What this means is that any person can own any barrelled weapon that fires a shot, bullet or other projectile without a licence so long as it does not exceed the velocity and energy set out in the subsection. The point of this exemption is not to sweep in as a Firearm low-powered barrelled weapons such as BB guns, pellet guns and the like. What Parliament has done has set a standard below which any owner of low-powered barrelled weapons can enjoy the use of the barrelled weapon without bothering to acquire a Firearm’s licence.
The Onus
[8] In respect of defences, the law is clear: the accused need not prove a defence. As the SCC stated in R v Holmes, 1988 CanLII 84 (SCC), [1988] 1 SCR 914 at 935, “all that the accused need do is point to some evidence which supports the defence. The Crown is then required to disprove the defence beyond a reasonable doubt.” The law seems to be more complex in respect of exceptions and exemptions.
[9] Ordinarily, in a trial, the Crown need not disprove an exemption.
[10] As the BC Court of Appeal explained in R v Goleski, 2014 BCCA 80, aff’d 2015 SCC 6, [2015] 1 SCR 399, the shift to place the onus on the accused respecting exceptions dates back to 1848 with the enactment in England of An Act to facilitate the Performance of the Duties of Justices of the Peace out of Sessions, within England and Wales, with respect to summary Convictions and Orders, 11 & 12 Vict, c 43, s 14. It was first enacted in Canada by An Act respecting the duties of Justices of the Peace out of Sessions, in relation to summary convictions and orders, SC 1869, c 31, s 4. It was introduced to the Criminal Codeas s 852 (The Criminal Code of Canada, 1892, SC 1892, c 29), and eventually became s 794 (2), which was repealed in 2018 (An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, SC 2018, c 29, s 68). Notably, this provision applied only to offences prosecutable by summary conviction.
[12] More importantly, our Court of Appeal stated the following in R v Thompson, 1992 ABCA 259 (at paras 9-10):
While the Criminal Code does not provide for the burden of proving exceptions in indictable offences, it does address their pleading (s. 581) where the common-law rule seems to be continued. While s. 794(2) is located in Part XXVII of the Criminal Code which guides summary conviction procedure alone, the rule, even s. 794(2) itself, has been relied upon in prosecutions by indictment in Canada. This is so even though the exception-onus provision is not reproduced in those Parts of the Criminal Code relating to procedure in trials by indictment. The sense and purpose of the exception-onus rule is clear. I am not persuaded that its application in Canada should be repressed simply because of the place of its statutory expression in the Criminal Code.
In R. v. Volk 1973 ALTASCAD 66, [1971] 12 C.C.C. (2d) 395 (Alta. App. Div.), the Appellate Division held that the burden of proof of establishing the statutory exception to the indictable offence of gross indecency – that the consenting complainant was 21 years old – rested on the defence. A similar result was reached in R. v. Duchesne [1976] 36 C.R.N.S. 365 (Que. C.A.), where the court addressed the proof burden escorting the statutory age exception to the indictable offence of buggery. The rule applies in prosecutions by indictment in England where, as in Canada, there is express statutory provision for provisos and exceptions only in summary proceedings (see the English legislation quoted in Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992) p. 88 n). …
[13] In accord, see R v Ali, 2015 BCCA 333 at para 30.
[14] I am aware of only one reported case where the onus in s 84(3) was considered. In R v Binns, 2002 OJ No 5153, 2002 Carswell Ont 4617, an oral decision from the Ontario Court of Justice, Bellefontaine J stated (at paras 2-3, OJ): …
Absent clear language or statutory or common law authority, it is inconsistent with the presumption of innocence to impose the burden on the defence to prove the point. I regret the bizarre interpretation this creates where opposite results occur depending on the whim of the Crown in making their election. However the result can be justified. In the event the Crown wants the benefit of the increased penalty available when proceeding by indictment they must be prepared to forego the evidentiary shortcuts available in summary conviction proceedings.
[15] In reaching this anomalous conclusion or “bizarre interpretation”, Bellefontaine J was bound by the narrow approach set out in R v H (P) (2000), 2000 CanLII 5063 (ON CA), 143 CCC (3d) 223 at para 14 (OntCA). In contrast, in Alberta, the law is set out in Thompson and Volk.
First Principles
[16] Given the lack of authorities, I turn to first principles.
[17] The law generally imposes an onus on the Accused to invoke the exemption provided in s 84(3) and to provide an air of reality to the claim that the weapon at issue is not in fact a “Firearm”. After all, the Accused will be in the best position to know about the existence of any authorizations, or to show that the weapon is an antique, a starter pistol, or a device associated with animals. This conclusion is consistent with Thompson and Volk.
[18] However, the specific exemption set out in s 84(3)(d) gives me pause. Parliament adopted a highly technical definition. This definition frequently comes up in cases involving pellet guns and air guns. The determination of pellet guns’ muzzle velocity is commonly referred to as “the pig’s eye test”, because the muzzle velocity listed in s 84(3)(d) is required for projectiles to penetrate the human eye and pigs’ eyes are similar in size and composition to human eyes. (R v Crawford, 2015 ABCA 175 at paras 24, 35; R v Dunn, 2013 ONCA 539 at paras 8, 40).
[19] Considering the state of most accused, it is unlikely that they would be able to have access to, or afford the requisite testing. Placing the burden of measurement of velocity on the Accused strikes me as being akin to requiring an accused to provide evidence with respect to the measurement of electricity or the torque of an engine. Requiring the Accused to present such evidence would impose an undue and unreasonable burden on the Accused.
[20] My conclusion in respect of s 84(3)(d) is reinforced by the inclusion in the stem of this provision of the words “where it is proved that the weapon is not designed or adapted to discharge”. This wording appears to anticipate this as a part of the element of a Firearm, and that it is the Crown who has proven the weapon’s muzzle velocity or projectile velocity.
[21] Finally, I note that s 84(3) does not contain the usual phrases which denote an onus on the Accused, such as “absent evidence to the contrary” or “the proof of which lies with the Accused”.
Conclusion
[22] In sum, I agree with Bellefontaine J that, absent clear statutory language, it is inconsistent with the presumption of innocence to impose the burden on the Accused to prove muzzle velocity or projectile velocity. I conclude that it is the Crown who bears the burden of proof in respect of s 84(3)(d).
[24] Therefore, notwithstanding that the sawed off .22 calibre rifle, otherwise meets the definition of Firearm, having reached the conclusion that the Crown must prove the velocity or energy as part of proving the barrelled weapon as a Firearm and not having that evidence that proof of the element in the first three charges in the indictment fails.
R v Rodriguez, 2021 ABQB 372
[May 11, 2021] Charter s.8 – Strip Search Needs Specific RPG, Charter s.10(b) – Immediate Access to Counsel [Mr. Justice W. N. Renke]
AUTHOR’S NOTE: This case stands for the proposition that just because you’ve lawfully arrested a person for possession for the purpose of trafficking in drugs, doesn’t mean that you can conduct a strip search. Police need particularized grounds to engage in this intrusion on the right to privacy. For s.10(b), this case provides ammunition for defence counsel to argue that despite a tow truck driver’s mistake of attending at the wrong location, the police are not given carte blanche to delay the accused’s access to counsel. Police are responsible for the negligence of their contractors which interferes with this right. Warning: read the other portions of this case for decisions that may not benefit your case before using.
Overview
[1] On November 2, 2018 at around 5:00 p.m., Mr. Rodriguez was sitting in a Jeep Cherokee at a red light at the intersection of 109 Street and Jasper Avenue in Edmonton, heading westbound. He was texting. He did not realize that Constables Todd Leach and Hector Lloyd of the EPS, on traffic enforcement duty, were in the unmarked vehicle to his right.
[2] Mr. Rodriguez was pulled over for texting while driving. When asked to produce his licence and registration, Mr. Rodriguez handed Cst. Leach a Mexican driver’s licence. Mr. Rodriguez, it appears, holds dual citizenship. Further inquiries disclosed that Mr. Rodriguez’s Alberta driver’s licence was suspended. Mr. Rodriguez was charged with driving while disqualified (CC s. 259(4)).
[3] Mr. Rodriguez had been the sole occupant of the vehicle. The registered owner of the vehicle was his brother.
[4] Searches incident to the drive while disqualified arrest were conducted. Cst. Leach saw a knife in plain view in the driver’s door cubby area. Mr. Rodriguez was charged with possession of a weapon for a purpose dangerous to the public peace (CC s. 88(1)). Cst. Lloyd searched Mr. Rodriguez’s vehicle and came upon a bag or satchel under the front passenger seat. That bag was found to contain a quantity of packaged cocaine. Mr. Rodriguez was charged with possession for the purpose of trafficking (CDSA s. 5(2)).
[5] Mr. Rodriguez was, eventually, transported to EPS Downtown Division, where he had an opportunity to consult counsel and was strip searched.
[6] Mr. Rodriguez’s trial opened with a “blended” voir dire, “blended” in the sense that several Charter issues fell to be decided on the basis of a single interwoven factual narrative. The issues for determination were the following: …
- were Mr. Rodriguez’s s. 10(b) rights violated by delay in being provided with an opportunity to consult counsel?…
- were Mr. Rodriguez’s s. 8 rights violated by the strip search?
At this point, only issues under ss. 8 and 10(b) of the Charter were argued. Argument on ss. 24(1) and (2) was deferred pending my conclusions on the ss. 8 and 10(b) issues.
IV. Were Mr. Rodriguez’s s. 10(b) rights violated by delay in being provided with an opportunity to consult counsel?
Facts
[112] At 5:26 p.m., Mr. Rodriguez was arrested for the drive while disqualified offence. At 5:27 p.m., Cst. Leach arrested Mr. Rodriguez for possession of cocaine for the purpose of trafficking. Cst. Leach advised Mr. Rodriguez of his right to counsel and cautioned him. Again, Mr. Rodriguez stated that he wanted to call his brother, the vehicle owner, who was a lawyer.
[113] At about 5:34 p.m., Cst. Leach requested a tow of the vehicle from the Police Vehicle Seizure Lot, which dispatched Cliff’s Towing.
[114] The officers and Mr. Rodriguez waited for the tow truck in the patrol vehicle.
[116] The tow truck didn’t arrive. Cst. Leach said “we were getting impatient.” At 6:17 p.m., Cst. Lloyd called PVSL to confirm the ETA of the tow. Cliff’s Towing, it turned out, had been dispatched to the wrong location. It was now en route. The tow truck arrived shortly after Cst. Lloyd’s call. The vehicle was towed.
[117] At 6:40 p.m., Mr. Rodriguez and the officers arrived at EPS Headquarters downtown.
[118] Following a health break and a secondary search, Mr. Rodriguez was placed in the phone room to access counsel and was advised of the resources available to him. This was at about 6:46 p.m.
Duty to Provide Access to Counsel “Without Delay”
[120] Section 10(b) provides that “[e]veryone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right.”
[124] In Taylor at para 24, Justice Abella set out three aspects of the implementation duty to facilitate access to counsel:
- “the duty to facilitate access to a lawyer … arises immediately upon the detainee’s request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity.”
- “The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 2000 ABCA 301 (CanLII), 271 A.R. 368, at para. 12 (C.A.)).
- “Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.”
[125] The purpose of this implementation duty (also described as a duty to provide access to counsel at the earliest practicalopportunity) is to “reduce the possibility of accidental self-incrimination” pending consultation with counsel: Taylor at paras 28, 32.
[126] Delay may be justified because of officer or public safety or because urgent and dangerous circumstances must be addressed: R v Tran, 2019 ABQB 284, Topolniski J at para 69, affd 2021 ABCA 58; R v Tieu, 2016 ABQB 344, Tilleman J at para 63.
[127] In Nelson at para 17, the Court of Appeal acknowledged the Suberu direction that “without delay” means “immediately,” but stated that “[i]mmediacy does not mean instantaneous; practical considerations still play a role, particularly with respect to the police’s obligation to implement an arrested person’s contact with counsel.” The Court of Appeal commented that “[p]eople are not always arrested in locations where it is possible for police to implement access to counsel.”
[128] In Nelson, the practical exigencies of getting an accused from Edmonton International Airport to EPS Headquarters and an appropriate site to consult counsel were found to support justifiable delay (“transporting him to headquarters was a necessary step and no information was elicited from him during this trip”): at para 19. Justice Kiss also recognized the need to deduct from delay the duration of reasonable practicalities for getting an accused from an arrest site to a police station: R v Yong, 2020 ABQB 676 at para 64.
[130] In this case, the delay was caused because Mr. Rodriguez’s vehicle had to be towed. Cst. Lloyd testified that in the circumstances of his arrest, towing was required by legislation. He said “we have to seize, we have no choice.” (This requirement was not detailed in evidence but could fall under the Traffic Safety Act (see e.g. ss. 170 and 169(2)(a)) and the Vehicle Seizure and Removal Regulation.) The officers were required to wait for the tow. The vehicle was parked illegally. The police could not simply leave the vehicle unattended at the side of the road. Someone could show up with a key and take it. Cst. Lloyd said that it was also necessary to safeguard the property. A police officer had to transfer custody of the vehicle to Cliff’s Towing to protect the chain of custody.
[131] Cliff’s Towing had ended up at 101 Street and Jasper, not 109 Street and Jasper. Whether this error was made by the police impound lot dispatch, Cliff’s Towing dispatch, or the tow-truck operator was not in evidence. There was no suggestion that Cst. Lloyd provided an incorrect address. He was not responsible for the error.
[132] Nonetheless, for at least 45 minutes following arrest, two officers sat with an accused in a patrol vehicle waiting for a tow-truck, before Cst. Lloyd made his call to check on what was happening. Cst. Lloyd was concerned that the tow-truck was taking too long to get to them. Neither officer requested any sort of assistance. Again, they were about a 5 minute drive from EPS Headquarters.
[133] I would not presume to dictate to EPS as to how to deal with the overlapping problems of a vehicle to tow with an accused requiring access to counsel. Both officers, though, need not have stayed with Mr. Rodriguez’s vehicle, whatever the logistics would be respecting transportation of (at least) one of the officers and Mr. Rodriguez to the police station.
[134] No argument was advanced that the seizure and towing rules somehow constituted valid limitations of s. 10(b) rights (or whether division of powers considerations might preclude such a limitation).
[135] While neither officer was to blame for the tow truck heading to the wrong location, Cliff’s Towing was still under EPS direction. The error was the error of EPS’s contractor. The error was certainly in no way attributable to Mr. Rodriguez. While the error itself was not a matter that the officers could control (they did not even realize it happened), the officers were not left without recourse. The situation was not like, for example, a police vehicle breaking down or getting into an accident on the way to a police station. As time dragged on, the officers could have attempted to work out some means of getting Mr. Rodriguez to counsel.
[136] On the evidence, no avenues of getting Mr. Rodriguez before counsel were explored or tried.
[139] Even after deducting 10 minutes for the drive from the arrest location to EPS Headquarters, and not considering any time that elapsed between Mr. Rodriguez’s arrival at Headquarters and his being placed in the phone room, Mr. Rodriguez’s access to counsel was still delayed by about an hour. He was arrested for possession for the purpose of trafficking at 5:27 p.m. and didn’t arrive at EPS Headquarters until 6:40 p.m.
[140] In my opinion, this was an unreasonable and unjustifiable delay, the Crown has failed to discharge its burden of proving the delay was reasonable, and Mr. Rodriguez’s right to access counsel protected under s. 10(b) of the Charter was violated.
VI. Were Mr. Rodriguez’s s. 8 rights violated by the strip search?
Facts
[187] At 6:40 p.m., Mr. Rodriguez and the officers arrived at EPS Headquarters.
[188] Following a health break and a secondary search, Mr. Rodriguez was placed in the phone room to access counsel and was advised of the resources available to him.
[189] At 6:51 p.m., Cst. Leach, while logging Mr. Rodriguez’s property, found $100 in Mr. Rodriguez’s upper left jacket pocket.
[190] By 7:02 p.m., Cst. Lloyd had formed the opinion that Mr. Rodriguez should be strip searched. He applied to Sgt. Quentin Miller for authorization to perform the search. Sgt. Miller was the Watch Commander that evening. Sgt. Miller authorized the strip search.
[191] At 7:04 p.m., Mr. Rodriguez came out of the phone room.
[192] Mr. Rodriguez was strip searched at 7:04 p.m. The search lasted until about 7:15 p.m. One pill (not evidence in these proceedings) was located in his pants pocket. The Crown will not be relying on this pill to prove its case on the merits.
The Principles
[193] There was no dispute that the search of Mr. Rodriguez was a “strip search” within the meaning assigned in R v Golden, 2001 SCC 83 at para 47.
[194] It was a warrantless search of Mr. Rodriguez’s body and the Crown bore the burden of proving the reasonableness of the search: Golden at para 105.
[195] Again, proof of reasonableness requires proof that the search was authorized by law, the law was reasonable, and the search was carried out in a reasonable manner: Golden at para 44.
[196] Strip searches are authorized by common law as a form of search incident to arrest. The common law rule, as articulated in Golden, is constitutional: at para 104.
[197] Like other searches incident to arrest, the validity of the search requires that the arrest be lawful, that the search be truly incident to arrest, and that the search be conducted reasonably: Golden at para 99.
[198] The prerequisite of lawful arrest was met. As indicated above, Mr. Rodriguez was lawfully arrested for possession for the purpose of trafficking.
[199] The manner or conduct of the search was reasonable. That was not at issue.
[200] At issue was whether the strip search was truly incident to the arrest. The purpose of the search must be related to the reasons for the arrest or for weapons: Golden at paras 92, 95, 99. In this case as in Golden, “the strip search was related to the purpose of the arrest. The arrest was for drug trafficking and the purpose of the search was to discover illegal drugs secreted on the appellant’s person:” at para 92. Pursuit through the search of a purpose of the arrest satisfied the subjective aspect of a search being incident to arrest.
[201] The Supreme Court emphasized the distinctive degrading and humiliating nature of strip searches: Golden at paras 83, 89, 90. A more stringent and cogent basis for this invasive form of search is therefore required.
[202] Thus, a strip search must be objectively reasonable. Because “a strip search is a much more intrusive search and, accordingly, a higher degree of justification is required in order to support the higher degree of interference with individual freedom and dignity[,] … to meet the constitutional standard of reasonableness that will justify a strip search, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest:” Golden at para 98; Fearon at para 24. See Ali at para 19:The test of “reasonable and probable grounds” does not require proof on a balance of probabilities. Rather, that standard requires a factually based likelihood that there are grounds for the strip search, rising above mere suspicion, but not necessarily demonstrating grounds on a balance of probabilities. Reasonable and probable grounds exist where, for reasons above mere suspicion, it is not unlikely that evidence will be found during the search: R. v Ha … at paras. 63, 70 ….
[203] Hence, the Court cautioned in Golden at para 94: “Whether searching for evidence or for weapons, the mere possibilitythat an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search.” [emphasis added]
[204] Further, a strip search is only justifiable based on individualized reasonable grounds. “Strip searches cannot be carried out as a matter of routine police department policy applicable to all arrestees, whether they are arrested for impaired driving, public drunkenness, shoplifting or trafficking in narcotics:” Golden at para 95; see para 90. “[A] ‘routine’ strip search carried out in good faith and without violence will also violate s. 8 where there is no compelling reason for performing a strip search in the circumstances of the arrest:” Golden at para 95. In R v Upright, 2020 ABCA 227 at para 24, the Court of Appeal referred to “appropriate, fact-specific considerations that justified the appellant’s strip search. [The considerations] were not impermissibly vague criteria that could apply to a vast category of offenders, nor was there a bare assertion that the appellant should be searched simply because she was charged with drug trafficking offences.” Justice Price referred to a strip search being necessary “in the particular circumstances of the arrest of Mr. Usmann:” R v Usmann, 2020 ABQB 793 at para 96.
[208] In a similar vein, Justice Burrows recognized safety for the police and other detainees as a purpose that may promoted by a strip search of an accused to be detained in custody with others: R v Upright, 2018 ABQB 490 at para 44, affd 2020 ABCA 122(another Upright litigation thread). The objective of ensuring safety, though, does not obviate the need for reasonable grounds for belief that the accused was carrying weapons or drugs: “The concern that she might have a weapon or drugs hidden on her body arose from the circumstances surrounding her arrest and gave rise to the conclusion that she should be strip searched before being placed in the police lockup or remand custody:” at para 45(QB). Justice Burrows also stated that “there was sufficient justification in the circumstances for conducting the strip search:” at para 46(QB); see para 9(CA).
Application of the Principles
[212] Cst. Lloyd testified that he had concerns based on the nature of the arrest. There was a possibility that Mr. Rodriguez had additional drug items on his body. Cst. Lloyd was concerned with his safety and the safety of others. He testified that in his experience, drug dealers and drug users may conceal drugs on parts of their bodies. Mr. Rodriguez was sniffing, so maybe he was a cocaine user.
[213] Cst. Lloyd recorded the following on the Strip Search Authorization Record:
The “Reason for Request” was “Suspected” “Evidence.” …
[219] In para 22 of Ali, the Court of Appeal stated that Golden does not require that “the police have direct information that the accused person has a history of hiding drugs on his person before a strip search is justified.” I take the Court of Appeal simply to be providing an example of “specific information” here by the reference to historical information. The broader point is that the justification of a strip search does not require direct evidence or observational evidence (or (historical) propensity evidence) that a person concealed evidence on his or her person. Paragraphs 111 and 112 of Golden remind us that the inference about the reasonable probability of concealed drugs may be circumstantially supported, an inference drawn from the totality of surrounding circumstances. No one of those circumstances need directly support the inference of concealment.
[220] In this case, the evidence certainly supports Cst. Lloyd having subjectively believed that the strip search would yield drugs. But were there reasonable grounds for his belief?
[221] In my opinion, Cst. Lloyd did not provide reasonable grounds for a strip search of Mr. Rodriguez. The stated grounds do not give rise to a reasonable probability or a reasonable likelihood that Mr. Rodriguez concealed drugs on his person.
[222] The grounds “Located large quantity of cocaine packaged for resale. Cell phone ringing multiple times, text messages suggestive of trafficking. Money (large quantity) found on AC @ arrest” would apply to a broad swath of individuals charged with possession for the purpose of trafficking. Again, as Golden stated at para 95, “[s]trip searches cannot be carried out as a matter of routine police department policy applicable to all arrestees, whether they are arrested for … trafficking in narcotics:” Golden at para 95; see para 90. And again as the Court of Appeal stated in Upright (2020 ABCA 227) at para 24, the appropriate considerations in that case “were not impermissibly vague criteria that could apply to a vast category of offenders, nor was there a bare assertion that the appellant should be searched simply because she was charged with drug trafficking offences.”
[223] The next representations, “AC to be held [with] other detainees. Need to ensure no further drugs are located on his person for his and other detainee safety,” refer to a legitimate purpose for strip searches but do not diminish the need for reasonable grounds.
[224] Finally, Cst. Lloyd wrote “Also, detainee stated he was a drug user and was sniffing +++.” In his testimony Cst. Lloyd had recounted his observation that Mr. Rodriguez was “sniffing a fair bit.” It is true that reasonable grounds need not rule out innocent inferences, defences, or lawful excuses: Ha at paras 31, 33, 34. Hence, I have not taken into account that there may have been other reasons for the sniffing while sitting in a patrol car for an hour after an arrest in Edmonton in November. I will also interpret “+++” to mean “a lot,” and I will accept that some drug users will sniff as a result of their drug use. However, the fact that a person is a drug user and the fact that a person has used drugs in the past as evidenced by his sniffing does not give rise to an inference that he presently has drugs on his person – and not merely on his person, but in a location that could only be revealed by a strip search.
[225] When considered in their totality, taking all of the grounds cumulatively, there is no reasonable basis for a probability that this individual, Mr. Rodriguez, had hidden drugs on his person that could not be located without a strip search. What the grounds speak to is an individual detained at a traffic stop, in a vehicle found to contain a “large quantity of [packaged] cocaine,” who received cellphone calls and text messages “suggestive of trafficking,” who used drugs and who sniffed. Drug trafficking and drug use are generic descriptors, generalized characterizations. There was no reference to anything in Mr. Rodriguez’s conduct, any database information, the circumstances of the arrest, the manner of storage or locations of drugs in the vehicle, or any comments he made that supported an inference of concealment.
[226] I must also observe that Cst. Lloyd characterized his conclusion expressly in terms of possibility rather than in terms of reasonable grounds. It was possible that Mr. Rodriguez was concealing drugs on his person. Anything is possible. The grounds advanced by Cst. Lloyd, though, did not support a reasonable inference of the probability of possession of concealed drugs.
Further Concerns
[232] First, in cross-examination, Cst. Lloyd stated that as regards trafficking, he could not think of an instance when he had not requested a strip search. As regards possession for the purpose of trafficking, he has requested a strip search in all instances, but he said that he does try to base his decision on the circumstances. Cst. Lloyd’s approach to strip search requests for trafficking offences, despite the qualification he made, is generic. The driver of the request for the strip search is the nature of the offence not the nature of the circumstances. This is the type of generalized suspicion that Golden set its face against. Being charged with a particular type of offence alone is not an appropriate basis for a strip search.
[233] My second set of concerns relate to the circumstances of the arrest.
[234] Cst. Lloyd and Cst. Leach surprised Mr. Rodriguez. He didn’t expect to be pulled over for texting. The officers were in the car next to him. I would expect that Cst. Lloyd at least (since Cst. Leach was driving) kept Mr. Rodriguez under observation for officer safety purposes. There was no observational evidence of Mr. Rodriguez shifting around or leaning forward or making any physical movements that attracted the attention of the officers. The situation was unlike, for example, the execution of a search warrant at a residence, where the occupants may have had a short time to react by disposing drugs or hiding drugs on their persons without being seen.
[235] The drugs were found in a bag under the passenger seat. Again, there was no evidence that Mr. Rodriguez was seen reaching towards the bag. The remainder of the vehicle was, in Cst. Leach’s estimation, clean. In his words, “there was not a lot in it.” There were no other drug sources in the vehicle.
[236] Mr. Rodriguez was in the patrol vehicle with the officers for over an hour. There was no evidence that he engaged in any movements or other conduct that suggested any concealment of drugs on his person.
[237] In fact, the impression that the officers had of Mr. Rodriguez, in Cst. Lloyd’s words, was that he was exemplary, wonderful to deal with.
[238] All of this is only to say that the circumstances disclosed in the voir dire, setting aside from Cst. Lloyd’s expressed grounds for the strip search, did not support reasonable grounds for a strip search of Mr. Rodriguez.
Conclusion
[239] In my opinion, reasonable grounds for the strip search of Mr. Rodriguez were lacking. The search therefore violated Mr. Rodriguez’s s. 8 rights.
R v Downey, 2021 NSCA 38
[April 29, 2021] Bail Pending Appeal – Public Confidence [Beveridge, J.A.]
AUTHOR’S NOTE: First, this is a great overview case about Bail Pending Appeal from a well-respected jurist. There is value in that on its own. Second, the case focuses on the public confidence ground in a case involving some very serious offending behaviour: Unlawful Confinement and Kidnapping along with Accessory After the Fact to Murder. In this respect, the Court provides some wisdom that can be pithily shared in a future application “Bail pending appeal is not a get out of jail free card, nor any kind of moral judgment about the applicant’s conduct.” When the law provides a remedy it should be given despite any kind of moral judgment about the conduct.
Overview
[1] On April 29, 2021, I heard Mr. Downey’s application for bail pending appeal. Two of the proposed four sureties were cross-examined. At the end of argument, I reserved my decision. I returned to announce the bottom line: the applicant had met his onus under s. 679(3) of the Criminal Code, and I granted a Release Order on the proposed stringent conditions of house arrest with a pledge of real and personal property of $110,000. I promised written reasons would follow. These are they.
[2] On March 15, 2019, a jury found the applicant guilty of unlawful confinement and kidnapping of Liam Thompson, and of being an accessory after the fact to Shawtez Downey’s murder of Tyler McInnis. All of these offences were committed during the evening of August 22, 2016.
[3] The evidence found to have been accepted by the jury is disturbing and reveals serious criminal conduct. Tyler McInnis went to North Preston to meet the applicant’s older brother, Shawntez Downey, to trade cocaine for a handgun. A witness described how Shawntez Downey announced his intention to rob Mr. McInnis.
[4] Mr. McInnis showed up with Liam Thompson. During the robbery, Shawntez Downey had a handgun. Ronald Sock told Mr. Thompson to get out of the car and lay down on the ground; he said this decision was his alone.
[5] Mr. McInnis ran away after Shawntez Downey struck him with the handgun. Shawntez Downey, the applicant and others pursued. Ronald Sock tied up Liam Thompson with a dog leash. Sometime later, the applicant returned and told Sock they had to get Thompson into the car and move it. The applicant drove the car to a different location, and then left.
[6] Ronald Sock heard a shot. Fifteen minutes later, the applicant returned and moved the car to a new location where they saw Tyler McInnis’ body wrapped in plastic. Sock, Shawntez Downey and another put the body into the trunk. With Liam Thompson in the backseat and the victim in the trunk, Shawntez Downey drove to a local graveyard. Once there, Shawntez Downey used a large calibre rifle to shoot at Liam Thompson at very close range. Miraculously, he suffered no serious injury. At trial, Mr. Thompson professed no memory of any of the events after their arrival in North Preston.
[7] On November 25, 2019, the trial judge sentenced the applicant to four years’ incarceration for the kidnapping offence and three years’ consecutive incarceration for being an accessory after the fact to murder, less credit for pre-sentence custody (2019 NSSC 384). She judicially stayed the unlawful confinement conviction based on the rule against multiple convictions for the same wrongful conduct.
[8] The applicant appealed from conviction and sentence. Shawntez Downey appealed from conviction. Both appeals were to be heard on December 9, 2020. On November 25, 2020, the Court adjourned the hearing to March 17, 2021 at the request of Alan Gold, who had just assumed carriage of Shawntez Downey’s appeal.
[10] In early December 2020, Mr. Gold sent to the Crown a witness statement that had been in possession of former defence counsel for some time. No specific details are known. What has been disclosed is that this witness apparently describes a scenario other than Shawntez Downey having murdered Tyler McInnis. Other differences, if any, between what Ronald Sock had described and the witness statement are unknown.
[11] The Crown appropriately forwarded the witness statement to the police in December 2020 for investigation. The applicant is not privy to the status of that investigation. The only detail provided by the Crown was that investigators have carried out a detailed interview of the witness. Amendments of the grounds of appeal for both Daniel Downey and Shawntez Downey are anticipated. With this background, I turn to the principles that guide an application for bail pending appeal and their application.
The Principles
[14] The applicant must establish to my satisfaction all three criteria: the appeal is not frivolous; he will surrender himself into custody in due course; and, his detention is not necessary in the public interest. The burden is the civil one, the balance of probabilities.
The Appeal is Not Frivolous
[15] The applicant’s Notice of Appeal sets out a number of grounds of appeal. They contend: the verdict is unreasonable or cannot be supported by the evidence; the trial judge should have granted his motion for a directed verdict and her reasons were inadequate; the trial judge’s jury instructions on forcible confinement and kidnapping were flawed; and, the trial judge committed legal error in imposing consecutive as opposed to concurrent periods of incarceration for the counts of accessory after the fact to murder and kidnapping.
[16] The Crown does not suggest the appeal is frivolous. As noted by Moldaver J. in R. v. Oland, the not frivolous test is widely recognized as a very low bar. Even without the prospect of an amendment of the grounds in response to the ongoing police investigation, I am satisfied the grounds are not frivolous.
Is the applicant’s detention not necessary in the public interest?
[24] Arbour J.A. (as she then was) in R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.), found the public interest criterion had two components: public safety and public confidence in the administration of justice. Public safety relates to the protection and safety of the public. Public confidence requires the Court to engage in a balancing exercise as between immediate enforceability of the trial judgment and the need for appellants to have a meaningful right of review. This has been the approach repeatedly adopted in Nova Scotia (see for example: R. v. Ryan, 2004 NSCA 105; R. v. Innocente, 1999 NSCA 161; R. v. Barry, 2004 NSCA 126; R. v. Cox, 2009 NSCA 15; R. v. McCormick, 2012 NSCA 58).
[25] Moldaver J., in R. v. Oland, endorsed Justice Arbour’s public interest framework….
[26] Almost a quarter of a century has passed since Farinacci was decided. The public interest framework which it established has withstood the test of time. It has been universally endorsed by appellate courts across the country: see, e.g., R. v. Matteo, 2016 QCCA 2046, at para. 20 (CanLII); R. v. Sidhu, 2015 ABCA 308, 607 A.R. 395, at paras. 5-6; R. v. Porisky, 2012 BCCA 467, 293 C.C.C. (3d) 100, at paras. 8 and 14-15; R. v. Parsons(1994), 1994 CanLII 9754 (NL CA), 117 Nfld. & P.E.I.R. 69 (C.A.), at paras. 30-34. Moreover, all of the parties and interveners in this appeal are content with the Farinacci framework. None has spoken against it; none has asked us to revisit it – and I see no reason to do so. Farinacci remains good law in my view.
[27] In so concluding, I should not be taken to mean – nor do I understand Farinacci to have said – that the public safety component and the public confidence component are to be treated as silos. To be sure, there will be cases where public safety considerations alone are sufficient to warrant a detention order in the public interest..However, as I will explain, where the public safety threshold has been met by an applicant seeking bail pending appeal, residual public safety concerns or the absence of any public safety concerns remain relevant and should be considered in the public confidence analysis [Emphasis added]
[26] The factors relevant to the importance of immediate enforcement are those adapted from those legislated for pre-trial judicial release (para. 31). This engages a consideration of the seriousness of the crime, informed by the gravity of the offence, the circumstances surrounding its commission, and the length of imprisonment imposed (para. 38).
[27] Relevant to public confidence is the appellant’s and the public’s interest in the effective reviewability of the trial judgment. This re-introduces the apparent strengths or weaknesses of the grounds of appeal.
[28] Finally, Moldaver J. instructed appellate judges to carry out a final balancing of the factors that inform public confidence, including the strengths of the appeal grounds, the seriousness of the offence, public safety and flight risk. These factors must be measured through the eyes of a reasonable member of the public, a thoughtful, dispassionate person, informed of the circumstances of the case and respectful of society’s fundamental values (para. 47).
[29] Importantly, Moldaver J. stressed the importance of being mindful of the anticipated delay in deciding an appeal relative to the length of the sentence. If all or a significant portion of the sentence will be served, bail becomes more important if the reviewability of the trial judgment is to be meaningful …
[30] Where an applicant has been convicted of murder or some other serious crime, immediate enforceability will be heightened and will often outweigh reviewability, especially where there are lingering public safety or flight concerns or the appeal grounds appear weak (para. 50).
[31] However, where public safety or flight concerns are negligible and where the grounds of appeal clearly surpass the “not frivolous” label, the public interest in reviewability may overshadow immediate enforcement—even if the conviction is for murder or other very serious offences …
Application of the Principles – Public Interest
[32] With these principles in hand, I turn to my assessment of whether detention is not necessary in the public interest.
[33] At the time of the commission of these offences, the applicant had just turned 18. He had two minor brushes with the law as a 15-year-old youth for which he received conditional discharges.
[34] Yet, after the commission of the subject offences, he pled guilty to a charge of assault causing bodily harm. Nothing is known about this offence except it was committed in January 2016, and while on remand for the subject offences he received a sentence on January 12, 2017 of 52 days’ incarceration. In addition, while on remand pending sentence, he pled guilty to simple possession of cocaine and was sentenced to 30 days’ incarceration.
[35] On the other hand, while on bail pending trial, he abided on all terms of his release, which included virtual house arrest with two sureties. The proposed terms of release included the requirement he reside with his partner, their young child, and his partner’s mother under virtual house arrest, except for scheduled employment or education, and on notification to the police of his whereabouts. He would also be allowed out for three hours on each Saturday to attend to personal needs, but only in the presence of one of his sureties. The same two sureties again pledge property. Two more join.
[36] Although the offences are serious, they do not demonstrate involvement in ongoing criminal conduct in the community. Four sureties pledge cash, personal and real property in the total amount of $110,000 to secure the applicant’s promise to surrender himself into custody and comply with the strict release conditions. This includes his grandmother who has put up her home. There can be no doubt his conscience is engaged by these pledges.
[37] I am satisfied that detention is not necessary for the protection and safety of the public.
[38] The Crown argues the grounds of appeal are not strong. I need not try to engage in an in-depth analysis. One of the grounds of appeal (as they are presently framed) relates to the jury charge underlying the unlawful confinement and kidnapping convictions. The ground is at least arguable, although at this stage I find to difficult to categorize the ground as strong. But as Moldaver J. urged, putting labels on grounds of appeal to determine bail applications should be avoided.
[41] If Shawntez Downey’s murder conviction is overturned based on fresh evidence, I am not prepared to rule out how that eventuality, and the potential fresh evidence, could impact on the applicant’s conviction. It is an arguable issue beyond the “not frivolous” criterion.
[42] The Crown rightly points out this issue is rife with speculation. To some extent that is correct. The Crown is aware of what this new witness has to offer. The Crown has not provided this information to me, nor the outcome of the police investigation of this witness. I mean no criticism. But what is not speculative is the fact this development has caused the appeal proceedings to be adjourned without day.
[43] A status update conference is scheduled for May 19, 2021. The earliest the applicant’s appeal could be heard would be next fall, let alone the additional time needed for the Court to deliver reasons.
[44] Although the applicant was sentenced to a total of seven years’ incarceration on November 25, 2019, the announced sentence was less credit for time spent in pre-sentence custody. This left a go-forward sentence of 43 month’s incarceration. The applicant acknowledges that as of January 2021 he was eligible for full parole. I am left to wonder whether the conditions of release the applicant proposed to this Court would be as strict as those by Correctional Services Canada should it grant parole. What is obvious is that if the applicant is not released on bail pending appeal, he will have served well in excess of 24 months’ incarceration out of a maximum time of 43 months before his appeal is heard and decided.
[46] In this case, the proposed terms of release more than provide for the protection and safety of the public. In the particular context of this case, I am satisfied the public safety and flight concerns are negligible and the public interest in reviewability overshadows the immediate enforceability interest. It does not mean that the trial judgment will never be enforced. If the applicant’s appeal is ultimately unsuccessful, he will still have to serve the remainder of his sentence.
[47] Bail pending appeal is not a get out of jail free card, nor any kind of moral judgment about the applicant’s conduct. This was eloquently put by Fichaud J.A. in R. v. MacIntosh, 2010 NSCA 77:
[21] … An interim release, pending a conviction appeal, is not a moral judgment that absolves, condones or mitigates the judicial reaction to the reprehensible conduct for which the individual was convicted. Neither is an interim release a reduction of the sentence. If, after a conviction appeal is heard and determined, the Court of Appeal overturns the conviction, then the individual is freed, as any innocent person should be freed, and his imprisonment thankfully will have been reduced by his earlier interim release. If, on the other hand, the Court of Appeal dismisses Mr. MacIntosh’s appeal, then the conviction and sentence will stand, and he will serve that full sentence without any reduction for the additional seven months house arrest that I will order here. Should his appeal fail, the house arrest under this ruling will add to his total period of lost freedom from the incarceration ordered by the sentencing judge. [Emphasis by PM]
[48] I am therefore satisfied on a balance of probabilities that the appeal is not frivolous, the applicant will surrender himself into custody, abide by the terms of his release and, despite the seriousness of the charges, his detention is not necessary in the public interest.
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