The Defence Toolkit – November 7, 2021

This week’s top three summaries: R v Jarrett, 2021 ONCA 758: 10(b)/24(2) temporal #exclusion, R v Mero, 2021 BCCA 399: #Gladue discount, and R v Marttinen, 2021 ONSC 6976: #false confession

R v Jarrett, 2021 ONCA 758

[October 26, 2021] Charter s.10(b) – Temporal Exclusion under 24(2): Seriousness of Violation [Reasons by B. Zarnett J.A., with David Watt and L.B. Roberts JJ.A. concurring]

AUTHOR’S NOTE: Section 10(b) applications most often deal with the exclusion of utterances made after an informational or implementational violation of the right to counsel. Herein, the violation did not lead to new evidence. However, given the seriousness of the violation (measured by time without provision of counsel contact: ie some 30 hours) a temporal connection was sufficient to result in the exclusion (on appeal) of drugs consistent with possession for the purpose of trafficking (though in moderate amounts). The case is a good example of temporal connection being sufficient given a sufficiently serious violation of rights. 

Introduction

[1] The appellant appeals his convictions for assaulting a police officer; failing to comply with a recognizance; possession of cocaine, oxycodone1, and hydromorphone for the purpose of trafficking; and possession of proceeds of crime. The appeal centres on the trial judge’s refusal2 to stay charges or exclude evidence as a result of what the appellant contends were breaches of his protected rights under the Canadian Charter of Rights and Freedoms.

[5] I would, however, allow the appeal from the drug trafficking and proceeds of crime convictions and substitute acquittals on those charges. As the trial judge noted, there was little dispute about the facts relevant to the s. 10(b) breach. The trial judge found that there had been a breach of the appellant’s right to counsel since although the police had made an initial effort — leaving a voicemail message with the appellant’s counsel of choice — they did not follow up or make any further efforts, leaving the appellant with no contact with counsel for 30 hours following his arrest, 20 of which he spent handcuffed to a hospital bed. As the trial judge also noted, whether exclusion of evidence was warranted turned on how the law applied to those facts. In my view, the trial judge’s analysis of the factors relevant to exclusion of evidence, set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, was legally flawed. Performing the correct analysis, the evidence seized at the scene of the arrest ought to have been excluded under s. 24(2) of the Charter as a remedy for the s. 10(b) breach.

Background

[6] On June 25, 2015, three plainclothes Niagara Regional Police detectives in an unmarked police car pulled up next to the appellant’s vehicle at an intersection in St. Catharines. The officers saw the appellant using a cell phone. …

[7] … Two of the officers performed database searches and learned that the appellant was on bail and a term of his release was to not possess a cell phone if it had not been registered with the Niagara Regional Police. As the cell phone had not been registered, the appellant was advised by one of the officers that he was being placed under arrest, and was asked to get out of his car.

[8] As the trial judge noted, the circumstances of the arrest from that point forward were the main factual dispute between the parties. …

[9] … As he stumbled out of the car, the police officers did the following: administered a knee strike to his chest, causing excruciating pain; administered a knee strike to his head; wrestled him to the ground; tasered him three times; held him on the ground; and handcuffed him. He denied ever resisting the police or fighting with them.

[12] Det. DiFranco was the officer who took the licence and registration from the appellant and returned to arrest him. He described the appellant as aggressive and confrontational. He testified that as the appellant was getting out of his car, he reached for a fanny pack around his waist, leading Det. DiFranco to reach for it as well due to safety concerns, as he did not know what it contained. Det. DiFranco administered a knee strike to the appellant’s upper body area to create distance between them.

The Opportunity to Retain and Instruct Counsel

[20] The appellant was advised of his right to counsel upon his arrest. He requested the opportunity to contact counsel, whom he identified by name.

[21] The appellant was then taken to the hospital for medical attention as a result of the circumstances of his arrest. He remained there, in police custody, handcuffed to his bed, for about 20 hours. He had no contact with counsel, and was not offered the opportunity to contact counsel from the hospital, although there was no health reason that would have prevented him from having that contact.

[22] The appellant only had contact with counsel sometime after being returned from the hospital to the police station or courthouse. The trial judge accepted that this occurred about 30 hours after the arrest.

[23] Although the appellant asked the police for the opportunity to consult counsel at the time of his arrest, the only step taken to facilitate that was Det. DiFranco leaving a voicemail message for the appellant’s counsel after the detective returned to the police station, about an hour and a half after the arrest. The police did not tell the appellant they had made this call, or follow up when the call to counsel was not returned. Nor did the police make any further efforts to facilitate contact with counsel for the entire time the appellant was at the hospital, or until they facilitated contact from the police station or courthouse some 30 hours after the arrest.

[24] The appellant was not asked for nor did he give any statement to the police prior to contacting counsel.

The Fanny Pack

[25] The police recovered the fanny pack at the scene. After the appellant’s arrest, it was searched. The fanny pack contained, among other things, 13 grams of cocaine, 40 oxycodone pills and 25 hydromorphone pills, and $125 in cash.

Analysis: the 10(b) Issue

[41] Section 10(b) guarantees to anyone arrested or detained the right “to retain and instruct counsel without delay and to be informed of that right”. Where, upon being informed of the right, the detained person exercises it, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 38, 42.

[42] The appellant exercised his s. 10(b) right by expressing the desire to speak to counsel immediately upon his arrest. The police breached the duty to immediately provide him with a reasonable opportunity to speak to counsel. The single message that was left with counsel, without any follow-up, did not actually provide an immediate opportunity for the appellant to speak to counsel. No such opportunity was provided for 30 hours. … The trial judge appropriately observed that it was unreasonable for the police to consider the single message sufficient and the “matter ended there” − further efforts were required. Yet the police took none. They did not explore whether there were other means of making contact with the counsel the appellant had specified. Nor was the appellant told that a message had been left with the counsel he had specified, or that it had not been answered. Thus, he was not given the opportunity to provide other contact information for that counsel if he had it, or to specify another counsel who might be more immediately responsive.

[43] … Where the police assume the responsibility of making first contact, rather than providing the detainee with direct access to a phone or internet connection, they must be taken to have “assumed the obligation to pursue [the detainee’s] constitutional right to [access counsel] as diligently as she would have”: R. v. O’Shea,2019 ONSC 1514, 372 C.C.C. (3d) 352, at para. 42; R. v. Doobay, 2019 ONSC 7272, 61 M.V.R. (7th) 225, at paras. 29-33. “Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing”: Doobay, at para. 30. In this case, where the police undertook to contact a lawyer on the appellant’s behalf, it was unreasonable for them to have left a single voicemail and ended their efforts there.

[44] Although there was no causal connection between, on the one hand, the discovery of the fanny pack and its contents, and on the other hand, the s. 10(b) breach, there was, as the trial judge appropriately found, a sufficient temporal connection to consider the evidence to have been obtained in a manner that infringed a Charter right within the meaning of s. 24(2): R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 35.

[46] The first Grant factor is the seriousness of the Charter-infringing state conduct. On this factor, the trial judge’s findings were equivocal. He referred to the breach as “not trivial”, and in one passage noted the “serious nature of the breach”. But he also referred to the breach as “inadvertent” or “arguably inadvertent”, because there had been an initial attempt to contact counsel. Because of this latter characterization of “inadvertent”, he held that this factor did not clearly require the exclusion of the evidence. In my view, the trial judge made two interrelated errors in coming to that conclusion.

[47] First, the breach ought not to have been viewed as anything other than serious, given the extent the police conduct departed from the content of the appellant’s constitutional right. The duty of the police was to immediately provide the appellant with a reasonable opportunity to speak to counsel. Viewed from that perspective, the breach was very substantial – the delay in providing the opportunity to speak to counsel was about 30 hours.^[4]

[48] Second, although the breach was arguably inadvertent — that is, not intentional and there was no evidence the delay was caused by a systemic practice — the circumstances did not take the case out of the serious breach category….

[49] In R. v. Noel, 2019 ONCA 860, the fact that a police officer left a message with duty counsel without following up to ensure contact occurred did not attenuate the seriousness of a s. 10(b) breach, and was viewed by this court as part of “a somewhat cavalier attitude about a fundamental, important, and long-settled Charterright to consult counsel without delay”: at para. 32. In R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, this court concluded that a three-hour delay in providing the opportunity to consult counsel, resulting from “collective negligence … in allowing the appellant’s s. 10(b) rights to fall through the cracks” was a serious breach even though a police officer not only contacted duty counsel, but kept the accused informed of the efforts to engage counsel so that he was not “left to languish alone interminably”: at paras. 114, 119 and 124.

[50] In this case, the sheer length of the delay, and the fact that over that lengthy period, nothing was done to inform the appellant that any effort to contact counsel was made, or to follow up on the contact, should have led the trial judge to conclude that the breach was serious and favoured exclusion of the evidence.

[51] Moreover, the trial judge erred in his analysis of the second Grant factor, the impact of the breach. He viewed the breach as one that had little practical effect, as the appellant was aware of the reasons for his arrest, was not requested to give a statement, and the search and seizure of the fanny pack would have happened anyway.

[52] Although the right to immediately consult counsel exists in part so that the accused can obtain advice about self-incrimination and the legality of searches, it extends to considerations beyond these, including obtaining reassurance and advice about how long detention may last and how liberty may be regained. “The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated”: Rover, at para. 45; Noel, at paras. 22-26. Holding a person without any explanation for why they cannot access counsel or any indication of when that might occur compromises their security of the person: Rover, at para. 46.

[53] … neither the fact that the police do not take a statement from the arrested person while violating the right to counsel, nor that there is no causal connection between the breach and evidence discovered, means that the breach will always lack a significant negative impact on the appellant’s Charter-protected rights: Rover, at paras. 43-47. The impact must be considered given the nature of the interests protected by the right to counsel, and the length of delay in providing it: Noel, at para. 27.

[54] In Rover, this court considered the impact on the accused to be serious because he was held for almost six hours “without any indication of when he might be allowed to speak to someone”: at para. 46.

[55] … The trial judge failed to consider all of the interests the appellant’s immediate right to counsel is to protect in his evaluation of the impact of this lengthy breach. He placed undue emphasis on the lack of a causal connection between the seizure and search of the fanny pack and the s. 10(b) breach, and on the fact that the police did not take a statement. Moreover, his observation that the appellant knew why he was arrested was, with respect, beside the point. The appellant was entitled to consult counsel; he was not required to be his own legal adviser when he wanted to speak to a lawyer.

[56] The trial judge’s conclusion that the second Grant factor did not favour exclusion is accordingly flawed. It did favour exclusion.

[58] The fanny pack and its contents ought to have been excluded. I would accordingly allow the appeal and quash the convictions on counts 2, 3, 4, and 9, and substitute acquittals on those counts.

Conclusion

[77] On consent, the guilty plea to count 4 is set aside. The appeal is allowed as to counts 2, 3, 4, and 9, and the convictions on those counts are set aside and acquittals are entered. The appeal is dismissed as to counts 1 and 10. Only the sentences and ancillary orders connected to counts 1 and 10 remain in place.

R v Mero, 2021 BCCA 399

[October 25, 2021] Gladue Effect on Sentence Outcome [Reasons by Mr. Justice Marchand, with Madam Justice Saunders and Mr. Justice Butler concurring]

AUTHOR’S NOTE: Clearly, a failure to consider Gladue factors in sentencing is inexcusable. The consideration of these principles is mandatory. The lower court failed to do that in this case, but what is particularly interesting is the aggressive approach to discounting the sentence taken at the Court of Appeal. It appears to have been driven by statistical failure of Gladue to make a dent in the overrepresentation of Indigenous people in prison populations. Since Gladue (1999), the statistics have gotten progressively worse. Significant judicial discretion in sentencing and in giving meaningful effect to Gladue in sentencing in particular have resulted in Indigenous people not benefiting in any statistical way. Consequently, Gladue has been and will continue to be a failure in ameliorating a systemic problem unless other courts follow suit and start meaningfully discounting sentences and considering alternatives to incarceration for Indigenous people. In other words, actions are required rather than words. 

One aspect of the aggressive approach by the Appellate Court here is the notion that in considering the fitness of the sentence, Indigenous offenders with Gladue issues should be compared to other similarly placed Indigenous offenders not others without those factors present. If consistently applied, this could fix some of the problems with the Gladue approach to date.

The case also provides a good overview of the flexibility for admitting fresh evidence on appeal against sentence.

Introduction and Background

[1] Robert Mero is an Indigenous offender. On October 19, 2018, he was convicted of drug trafficking and weapons offences. Although his trial counsel (who was not his counsel on appeal) suggested he might seek an adjournment to obtain a Gladue report, the sentencing hearing proceeded without one. During the sentencing hearing, neither Mr. Mero’s trial counsel, Crown counsel (who was not Crown counsel on appeal) nor the judge addressed Mr. Mero’s Métis heritage, how that may have played a role in his offending or what alternative sentencing processes or sanctions might be appropriate for Mr. Mero as an Indigenous offender.

[2] On July 4, 2019, Mr. Mero was sentenced to concurrent eight-month and 40-month sentences in relation to his drug trafficking and weapons convictions…. He now appeals from sentence.

[4] The Crown acknowledges the judge erred in principle in failing to consider Mr. Mero’s Indigenous status. The Crown submits, however, the judge properly considered information concerning Mr. Mero’s difficult personal circumstances. The Crown maintains the judge imposed a fit sentence given the gravity of Mr. Mero’soffences and his degree of culpability.

[7] On January 8, 2016, the police executed a search warrant at Mr. Mero’s residence in Prince George. They located a loaded, restricted firearm (a .38 calibre pistol), ammunition, 23 grams of heroin, “score sheets” and a bullet-proof vest. Mr. Mero was not authorized to possess the firearm. The heroin had a street value of about $5,500.

[9] The PSR was completed on December 13, 2018. It detailed Mr. Mero’s difficult personal history and current health issues. It did not mention his Métis heritage.

[14] On June 27, 2019, the parties made their sentencing submissions and then made further submissions on an adjournment for Mr. Mero to obtain a medical report. Mr. Mero’s trial counsel read a brief note he had received from Mr. Mero’s specialist indicating that “time in jail would pose a danger to his overall health”. Mr. Mero submitted that he needed an adjournment to obtain a “proper” report. Neither party raised Mr. Mero’s Indigenous heritage or made any reference to Gladue. The judge made no Gladue-related inquiries. The judge adjourned proceedings to July 4, 2019.

Reasons for Sentence

[20] The judge then noted Mr. Mero was 34 years old with a dated criminal record that made him “akin to a true first-time offender rather than a hardened dangerous criminal.” The judge also identified that Mr. Mero had a supportive family, had been free of drugs and alcohol for two years, had a means of dealing with his significantpersonal debt and had a 50 to 90 per cent loss of lung capacity that “should encourage him towards his recovery from drug dependence.” As a result, the judge concluded that Mr. Mero had “a good prospect for rehabilitation.”

[22] The judge then recounted Mr. Mero’s personal circumstances, highlighting that “[h]is early life was nothing but tragic.” In particular, the judge accepted that
Mr. Mero’s father was often away at work, leaving Mr. Mero at home with a mother who had significant mental health issues. As a result, Mr. Mero left home at about age 12, “living life by his own wits, which not surprisingly led to his early involvement in drug sales.”

[30] The judge made no reference to Mr. Mero’s Indigenous heritage or Gladue factors.

Fresh Evidence Application

Legal Principles

[32] The leading case on fresh evidence is Palmer v. The Queen, [1980] 1 S.C.R. 759 at 775, 1979 CanLII 8. Proposed fresh evidence must be admissible and meet the following criteria:

1.   in spite of due diligence, the evidence could not be adduced at trial;

2.   the evidence is relevant;

3.   the evidence is credible; and

4.   the evidence could be expected to have affected the result.

[33] In criminal cases, the due diligence criterion is often relaxed to avoid a miscarriage of justice: R. v. Aulakh, 2012 BCCA 340 at para. 57.

[34] On sentence appeals, there is some flexibility to admit fresh evidence to address events that have occurred between the time of sentencing and the time of the appeal. Appeal courts cannot ignore the human realities of changed circumstances, but also cannot jeopardize the integrity and finality of the criminal process by routinely deciding sentence appeals on the basis of after-the-fact developments. Given the wide variety of possible circumstances that may arise after sentencing, there are no “hard and fast” rules. When considering post‑sentencing changes in circumstances, appeal courts must balance competing values to ensure the appeal process is “both responsive to the demands of justice and respectful of the proper limits of appellate review”: R. v. Sipos, 2014 SCC 47 at paras. 30–31.

Gladue Report

[35] The Gladue report is dated September 23, 2020. It contains general information about the Métis Nation and identifies the following “Gladue factors” that commonly affect Métis people:

• Intergenerational impacts of colonialism and displacement.
• Loss of autonomy due to discriminatory policies (eg. Scrip Policy for Métis, the Indian Act).
• Racism and systemic discrimination against Indigenous peoples.
• Legacy of gendered discrimination in Indian Act and related policies.
• MMIWG.
• Loss of parenting skills and familial composition.
• Normalization of violence and neglect.
• Substance abuse/Addiction, Mental Health issues.
• Lack of opportunity or isolation of communities.
• Domestic Violence from intimate spousal abuse.
• High rates of unemployment and poverty.
• Low levels of educational attainment.
• Loneliness, Abandonment and Dislocation from culture, community and family.
• 60s Scoop.
• Forced attendance at Indian Residential School of immediate family members.
• The over-representation of Indigenous peoples in the criminal justice systems.
• Institutionalization.

[36] The author of the report indicates that many of these factors are present in Mr. Mero’s case.

[37] According to the Gladue report, Mr. Mero and his father, Robert Mero Sr., are “card-carrying” citizens of Métis Nation BC. Mr. Mero’s mother is non-Indigenous. In his childhood and again more recently, Mr. Mero has maintained a meaningful connection to his Métis community and culture.

[40] Mr. Mero began using alcohol at age nine, marihuana at age 12, and cocaine and crack cocaine at age 15. He quit school at age 12, left home and eventually ended up living on the streets. Mr. Mero began looking for social connections with people who shared similar life experiences, fell in with an older crowd and began selling drugs. By the time he was 19, he also came into conflict with the law, accumulating a number of convictions and custodial sentences. According to his criminal record and PSR, Mr. Mero accumulated multiple convictions for drug trafficking and administration of justice offences in 2005 and 2006.

[41] Mr. Mero was free of drugs and alcohol for 12 years from his “late teens to early adulthood.” During this time, he married and worked in construction. He is a third-year journeymen scaffolder and has experience in welding, dry-walling and carpentry.

[42] At some point, Mr. Mero developed a chronic and serious respiratory condition, “bronchiectasis with mucus plugging.” In 2015, he was prescribed an opioid for his lung condition. When that prescription was discontinued, he sought out street drugs and became heavily addicted to heroin. At the time the Gladue report was prepared, Mr. Mero had been free of drugs and alcohol for two years. He was on a methadone maintenance program and had reduced his dose over time.

[44] At the time the Gladue report was prepared, Mr. Mero and his wife were living with Mr. Mero’s father but were about to move into their own place. Mr. Mero was no longer connected to negative associates from his drug-using days. Mr. Mero’s two- year-old son was living with one of his sisters in Ministry of Children and Family Development care and his wife was seven months pregnant. In order to obtain increased access to his son, in March 2020, Mr. Mero successfully completed a Métis healing and parenting program. Mr. Mero was having regular supervised visits and hoped to establish a parenting relationship with his son.

[45] Mr. Mero was reported to be open to restorative justice options. He hoped to understand more about how intergenerational factors “played a part in his circumstances growing up and manifested in his teen and adult years.” He believed that “learning more about Indigenous values … [would] help him to build his self-esteem, re-establish himself as a contributing member of society, re-instate his value system, and provide purpose to live a crime-free lifestyle.” He wished to take steps to address “the root cause of his addictions” and his childhood traumas, including through “group support/NA, and trauma counselling.”

[47] As required by Palmer, the information in the Gladue report is admissible, relevant, credible and could be expected to have affected the result. While, with due diligence, the report could have been available at the sentencing hearing, I consider that excluding the report on that basis could lead to a miscarriage of justice.

[48]  I would admit the Gladue report as fresh evidence.

Medical Evidence

[49]  Mr. Mero’s very brief medical report is dated August 25, 2020, and was prepared by Dr. Tharwat Fera, a physician and clinical professor in the Respiratory Division of the Department of Medicine at UBC. According to the report, Mr. Mero has been diagnosed with bronchiectasis with mucus plugging. He receives bronchodilator therapy and is on various medications. As a result of his lung disease, Mr. Mero is “susceptible” to and at “very high risk” of COVID-19. If Mr. Mero contracted COVID-19, “his condition will rapidly deteriorate and his mortality is much higher than other people without underlying chronic respiratory conditions”.

[51] In my view, the medical report meets the Palmer criteria. I would admit it as fresh evidence. [A Crown report was also admitted regarding the successful federal prison vaccination campaign offsetting the impact of this evidence…]

Sentencing Afresh: Gladue Principles

[65] Given Mr. Mero’s Métis heritage, s. 718.2(e) of the Code has special importance in the circumstances of this case. It provides:

[A]ll available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[66] In R. v. Gladue, [1999] 1 S.C.R. 688, 1999 CanLII 679, and R. v. Ipeelee, 2012 SCC 13, the Supreme Court of Canada makes clear that s. 718.2(e) is a remedial provision that was and is intended to deal with the crisis of over‑representation of Indigenous offenders in the Canadian criminal justice system. Sadly, the statistics are much worse today than they were in 1996. Specifically, in the debates of Parliament cited in Gladue at para. 47, the national Indigenous prison population in November 1994 was reported to be 10.6%. According to publicly available information from the Government of Canada, in January 2020, the Indigenous population in Federal correctional facilities surpassed 30%[1].

[68] While the over‑representation of Indigenous people in Canada’s prison population is tied to broad societal issues, the Court in Gladue and Ipeelee recognized that culturally attuned sentencing for Indigenous offenders has a role to play in addressing the problem: Gladue at para. 65; Ipeelee at paras. 64–70.

[69 Indigenous offenders are different from other offenders because, in the words of the Supreme Court of Canada, they “are victims of systemic and direct discrimination”: Gladue at para. 68. As a result, and to help address the crisis of over‑representation, Gladue changed the way Indigenous offenders are sentenced, though not necessarily the result. In sentencing an Indigenous offender, a sentencing judge must consider two factors:

1.   The unique systemic or background factors that may have played a part in bringing the particular offender before the courts; and

2.   The types of sentencing procedures and sanctions that may be appropriate in the circumstances.

See Gladue at para. 66.

[71] A fit sentence is one that is proportionate and appropriately balances the seriousness of the offence with the moral blameworthiness of the offender: Ipeelee at para. 37. A fit sentence is not determined by comparing the sentence of a particular Indigenous offender to a hypothetical non‑Indigenous offender “because there is only one offender standing before the court”: Ipeelee at para. 86. [Emphasis by PM]

[72] In striking the appropriate balance, it is not necessary to establish a direct causal link between systemic and background factors and the offence at issue. How the complex interplay of historical factors impacted a particular Indigenous offender may be difficult or impossible to establish. Nevertheless, the specific systemic or background factors at play are critically important. They may help the court assess the moral blameworthiness of the offender or identify appropriate sentencing objectives: Ipeelee at paras. 81–83.

[73] … There is no automatic heritage-based discount. Generally, the more serious or violent the crime, the more likely it will be, as a practical matter, that the terms of imprisonment will be the same for an Indigenous and a non‑Indigenous offender: Gladue at para. 33; R. v. Wells, 2000 SCC 10 at paras. 42–44; Ipeelee at paras. 84–85.

[74] That said, no offence is so serious that it negates the need for a sentencing judge to consider s. 718.2(e) of the Code and Gladue principles. In fact, sentencing judges have a duty to do so and a failure to do so constitutes an error in principle. In Ipeelee at para. 87, the Court explained:

[87] The sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention.

[Emphasis added.]

Discussion

[76] Turning to Gladue issues, although the judge had been made aware Mr. Mero had Indigenous heritage, he was not provided, and did not seek, the information he needed to meaningfully address Gladue. Without an understanding of the full context of the case before him, the judge was not in a position to properly analyze Mr. Mero’s moral culpability, determine which sentencing objectives to actualize, consider alternative sentencing procedures or sanctions, or determine a fit sentence.

[78]  In these circumstances, this Court must consider sentencing afresh.

[83]  As found by the trial judge, Mr. Mero’s offences were not low-level offences. They were serious and deserving of commensurate punishment to send a clear message to Mr. Mero and others that the unlawful possession of loaded restricted firearms and trafficking in narcotics will not be tolerated in our society.

[85] As noted by the trial judge, Mr. Mero’s childhood was tragic. Mr. Mero faced many challenges. He had learning difficulties and ADHD. His father did not allow him to receive medication, which might have alleviated some of his difficulties. His non-Indigenous mother was severely mentally ill. While his father appears to have been a stable parent, he was not able to insulate Mr. Mero from his mother’s neglect and emotional abuse. In these circumstances, it is relatively easy to understand why Mr. Mero left home, why he began misusing substances and how he became involved in criminal activity, all at a very young age.

[88] Turning more directly to Mr. Mero’s Métis heritage, the Gladue report writer did not attempt to draw specific and direct links between Mr. Mero’s heritage and his criminal activity. Nor was that required. However, it is not difficult to infer that Mr. Mero faced some additional challenges throughout his life as an Indigenous person in Canada. Consistent with the experience of a disproportionate number of Indigenous people in Canada, Mr. Mero’s childhood was traumatic, he was unable to complete school, his life was marred by addictions, and he came into conflict with the law. In short, there is an evidentiary basis to conclude that Mr. Mero’s Métis heritage reduces his moral blameworthiness below the level the judge discerned based on incomplete information.

[90] Given the seriousness of Mr. Mero’s weapons offence, denunciation and deterrence have a significant role to play in determining a fit sentence. At the same time, given Mr. Mero’s significant steps toward rehabilitation, and how the overrepresentation of Indigenous people in the criminal justice system continues to worsen, the circumstances also require that significant attention be paid to the sentencing objectives of rehabilitation and restoration. [Emphasis by PM]

[91]  In these circumstances, what is a fit sentence?

[93] In my view, taking a holistic view of all of the circumstances of Mr. Mero’s case requires a departure from the usual sentencing ranges identified by the judge.

[95] Mr. Mero has never acknowledged responsibility for his offences, but he appears to have turned his life around. His actions speak louder than words.

[96] Despite his severe lung disease and financial pressures, he has not returned to supporting himself through criminal activity. In fact, he has dissociated himself from his previous criminal associations and has been on bail for five years without incident.

[97] Impressively, Mr. Mero has been free of drugs and alcohol for several years. For someone with his traumatic background and history of addictions, achieving this has required considerable personal commitment.

[99] What stands out for me is that Mr. Mero has objectively made major, positive and long-lasting changes in his life despite the extra hurdles and burdens he has faced, generally and as an Indigenous person in Canada.

[100] With regard to Mr. Mero’s weapons offence, in all of the circumstances, I am unable to conclude that I should suspend the passing of sentence and place
Mr. Mero on probation. That type of sentence would simply not send a strong enough message of denunciation and deterrence. Rather, in my view, a custodial sentence in the provincial range would be the most fit sentence.

[104] As noted in Proulx at para. 22, CSOs have both punitive and rehabilitative aspects. There are no presumptions for or against the use of a CSO in relation to any specific offence. CSOs need not be of the same duration as the sentence of incarceration that would otherwise have been imposed. All that is required is that the CSO is a fit sentence: Proulx at paras. 58–61 and 104.

[107] The restrictive terms of a CSO will adequately address denunciation and deterrence.

[108] The sentence is in line with sentences imposed on similarly situated offenders convicted of similar crimes in similar circumstances. For example, in Sellars, an Indigenous offender was convicted of offences contrary to ss. 95(1), 94(1) and 86(1) of the Code. Mr. Sellars had developed serious substance abuse problems at a young age, which escalated due to his gang involvement and traumatic personal losses. However, Mr. Sellars turned his life around by completing an alcohol treatment plan, quitting his abuse of substances, and leaving the gang. He completed several industry-training certificates, obtained employment and continued working until his conviction. This Court held that Mr. Sellars’ moral culpability was diminished due to Gladue factors and recognized the exceptional rehabilitative steps he had undertaken. This Court imposed a CSO of two years less a day.

[109] Allowing Mr. Mero to serve his sentence in the community will enhance public safety by supporting his rehabilitation, is consistent with the instruction in the Code to impose the least restrictive penalty appropriate to the circumstances, and will give full effect to the spirit of Gladue and Ipeelee. It will also have the positive ancillary benefit of helping to stabilize his family and, hopefully, break the cycle of poverty, addiction and crime that has affected him and afflicts so many Indigenous families in Canada.

[111]  Ordinarily, Mr. Mero’s drug trafficking conviction would warrant a custodial sentence. Without minimizing the seriousness of his offence, the following factors lead me to conclude that a suspended sentence would be a fit and appropriate sentence in all of the circumstances of this case:

• Mr. Mero’s reduced level of moral blameworthiness;
• Mr. Mero’s success in turning his life around;
• the fact that Mr. Mero has already spent five years on bail, including five months with highly restrictive conditions; and
• the pressing need to meaningfully address the worsening crisis of overrepresentation of Indigenous people in jails across Canada. [Emphasis by PM]

[113] On the weapons count, I would impose a CSO for a term of two years less one day.

R v Marttinen, 2021 ONSC 6976

[October 27, 2021] False Confessions [Justice Varpio]

AUTHOR’S NOTE: Courts often talk about false confessions, but mostly in distinguishing the case before them from such a prospect. Herein, Justice Varpio actually goes a long way to determining a probable statement was not beyond a reasonable doubt a confession to an arson. While there were many overlapping issues, the key takeaway is that when someone has a penchant for making extravagant threats, they may not be taken seriously by the Court afterwards as a confession.

Overview

[1]  On June 17, 2019, Mr. Bernie Agawa and Mr. Thomas Marttinen were living in a rooming house located at 549 Cathcart Street, in Sault Ste. Marie, Ontario. Shortly before 3:00 a.m. on that date, a fire broke out at the rooming house. Mr. Agawa died in the fire. The Fire Marshal’s report indicated that the fire originated in the first-floor hallway near the front of the building.

[2]  Multiple tenants gave evidence that Mr. Marttinen would regularly threaten to “burn down the church”1 or make similar threats. The tenants did not take these threats seriously since Mr. Marttinen made many such utterances and never followed through upon same. On the night in question and on the morning thereafter, Mr. Marttinen allegedly confessed to setting the blaze on two separate occasions.

[5]  When I examine the evidence as a whole, I have a reasonable doubt regarding Mr. Marttinen’s guilt as a result of:

a. Credibility and reliability issues suffered by the witness;

b. Mr. Marttinen’s propensity for making bold assertions; and

c. The presence of a third party who appears to have had both a motive and the opportunity to set fire to the rooming house. This third party also engaged in suspicious behaviour during the night in question.

[6]  Ergo, I find Mr. Marttinen not guilty of the offences before the court.

The Facts

[7]  The rooming house was a former church that had been converted into single room residences. Tenants shared common areas such as the kitchen, bathrooms and lounges. It was a low-rent tenancy and many of its residents had mental health issues and/or were involved with the law.

[11]  A rear door exits the kitchen and leads into the backyard. It is accepted by all witnesses that the rear door was boarded and sealed shut the night of the fire. One could not exit via the rear of the building.

[12]  A fire escape runs along the back (or southside) of the building. This fire escape was used by residents as a rear entrance. The fire escape can only be accessed via a second- floor doorway.

[13]  Given this layout, an individual on the first floor of the rooming house would have to approach the front foyer area in order to exit the building, to either take the staircase up to the second floor to access the rear fire escape, or to go out the front door.

[14]  Sometime before 3:00 a.m. on June 17, 2019, a fire broke out at the rooming house. At 2:58 a.m., someone called 911 to report the fire. The fire department attended shortly thereafter. Unfortunately, Mr. Agawa was not able to exit the building. Mr. Agawa was ultimately found by fire fighters in the laundry room area of the main floor. Mr. Agawa was later pronounced dead at the Sault Area Hospital. He died as a result of smoke inhalation.

[15]  The fire was investigated by Mr. James Allen, a Fire Investigator with the Office of the Fire Marshal. Mr. Allen determined that the fire was intentionally set. Carpet samples were taken from the rooming house and sent to the Centre for Forensic Sciences (“CFS”) for analysis. A sample from the hallway located in fairly close proximity to the front door was sent for analysis. CFS determined that said sample contained gasoline. Accordingly, the Fire Marshall determined that the fire was intentionally set using gasoline as an accelerant and an independent fire source, such as a match or a lighter.

[Significant summary of evidence omitted]

Argument

[125] The Crown submitted that it has proven beyond a reasonable doubt that Mr. Marttinen set the fire. The Crown argued that the following points prove the Crown’s case:

1. Access to the rooming house was limited given the fact that the kitchen door was barred shut and the front door had had its lock fixed prior to the fire;
2. Mr. Marttinen lived near the location where the fire started. Lighters were found in his room;
3. Mr. Marttinen made statements on multiple occasions to other tenants that he intended to burn down the rooming house;
4. Mr. Marttinen confessed on two occasions that he set the fire; and
5. Mr. Leonard heard Mr. Marttinen in the kitchen – where there was no ability to escape – prior to the fire. Subsequent to the blaze gaining appreciable size, Mr. Leonard saw Mr. Marttinen outside the house. Mr. Marttinen, therefore, would have had to have set the fire because, had he not set the fire, he would not have been able to escape.

[126] The Crown submitted that, despite the obvious problems associated with their testimony, Ms. Daigle and Mr. Leonard were credible witnesses because their evidence was logical, without animus and corroborated in important ways. As regards Ms. Flamand and Mr. Kearns, their evidence was largely untouched and there is no reason to disbelieve same.

Credibility, Reliability, and Mental Illness

Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately

(i)observe;

(ii)recall; and

(iii)recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (R.J.) (1995), 1995 CanLII 3498 (ON CA), 80 O.A.C. 161; 22 O.R. (3d) 514 (C.A.), at 526 [O.R.].

[130] The Manitoba Court of Appeal examined the law as it pertains to credibility, reliability and mental illness in R. v. Perrone, 2014 MBCA 74 (CanLII), [2014] M.J. No. 217 (M.C.A.), appeal dismissed 2015 SCC 8 (CanLII), [2015] 1 S.C.R. 473 (S.C.C.).  At para. 30, the Manitoba Court of Appeal stated:

A mental illness does not necessarily imply an issue with reliability. In R. v. M.H., 2003 BCCA 607, 188 B.C.A.C. 315, Levine J.A. commented that the fact that a trial judge was not aware of a witness’s bi-polar disorder was irrelevant in the absence of any evidence of “some connection between that disorder and the reliability of their evidence” (at para. 9). Similarly, in R. v. Nickerson (L.E.) (1993), 1993 NSCA 152 (CanLII), 121 N.S.R. (2d) 314, Chipman J.A. commented (at paras. 25-26):

…. The mere fact that such a victim, particularly of sexual assault, has a psychiatric history is not of itself relevant.

But went on to say:

A psychiatric condition of a witness, just as any other medical condition, is admissible to show that the witness suffers from such disease or abnormality as might affect the reliability of his or her evidence. To deny such an attack upon the capacity of the witness could lead to an injustice. Clearly it would be unthinkable that medical evidence to show that a witness’ eyesight or hearing was too impaired to enable such witness to see or hear that about which testimony was or was to be given should be refused. So too a disorder of the mind which makes a witness’ testimony unreliable is a fair subject for exploration. ….

Analysis

1. Mr. Leonard testified that Mr. Marttinen had a habit stating that he would blow places up and/or making similar threats. This evidence was corroborated by the Houles;
2. Mr. Leonard testified that he heard Mr. Marttinen in the kitchen prior to the fire; and
3. Mr. Leonard testified that, after feeling the heat coming from his doorknob hole, he heard and saw Mr. Marttinen outside the house, muttering to himself about windows.

[134] Some general statements must be first made about Mr. Leonard. Mr. Leonard comes to court with 93 entries upon his criminal record including convictions for robbery, fraud, disobey court order and failure to attend court. This fact alone demands that the court take considerable caution when looking at Mr. Leonard’s credibility.

[135] Further, Mr. Leonard testified that he suffers from a mental health condition whereby he hears voices. He indicated that the voices make it “hard for him to decide what’s real” and that when he hears said voices, “they lock me up”. As such, Mr. Leonard’s recitation of what any person said must be considered with extreme caution.

[136] Mr. Leonard also had material inconsistencies in his testimony about whether he spoke with Ms. Daigle on the night in question. This fact causes me to have concerns about Mr. Leonard’s reliability.

[137]  … Accordingly, I accept that Mr. Leonard liked Mr. Marttinen and that Mr. Leonard did not testify with the intention of doing harm to Mr. Marttinen. In light of the concerns raised in the preceding three paragraphs, however, I cannot accept Mr. Leonard’s testimony on important points unless there is a persuasive reason so to do.

[138] The first important piece of evidence to consider is Mr. Leonard’s testimony regarding Mr. Marttinen’s habit of making statements about setting fire to places and the like. I first take into account the fact that several witnesses testified that the rooming house was not necessarily a secure abode in that many tenants had criminal records and suffered from mental health issues. It would therefore not surprise me that the occasional threat was made in the rooming house. It would also not surprise me that a witness would forget about a single threat or could misinterpret a specific statement given the number of threats that were undoubtedly uttered in the rooming house…. By way of contrast, a single threat made in a rooming house where a number of tenants had criminal records and mental health concerns may get lost in the shuffle.

[139] … It makes sense that even a witness with Mr. Leonard’s frailties would recall and be able to recount Mr. Marttinen’s pattern of uttering threats.

[140] Mr. Leonard’s evidence on this point was corroborated by the Houles’ preliminary hearing evidence….

[141] Even discounting the value of the Houles’ evidence, it is clear to me that their evidence as regards Mr. Marttinen’s pattern of saying that he would “blow up” locations corroborates Mr. Leonard’s evidence in a meaningful way….

[145] Defence counsel submitted that I ought to find that the West Side Confession did not occur because Ms. Flamand’s and Mr. Kearns’ evidence lacked credibility and/or reliability. For example, Ms. Flamand indicated that the West Side Confession occurred around midnight whereas it was clear that the fire department was called shortly before 3:00 a.m. Ergo, the West Side Confession would have occurred within minutes of sirens passing by the West Side Café or around 3:00 a.m. It was submitted that this discrepancy ought to cause me concern. I disagree with that submission. Ms. Flamand gave police a statement two weeks after the fire…

[150] Even factoring in the concerns about Ms. Flamand’s reliability outlined in the previous two paragraphs, I have little reason to doubt Ms. Flamand’s recollection of the events of June 17, 2019. Ms. Flamand was specific about what the passing individual stated, and she had a clear recollection of who was present and what they were doing. She was not pressed on these recollections and I was left with the distinct impression that Ms. Flamand was a witness who recalled the specifics of what was said by the man passing by the West Side Café. This makes especial sense since the subsequent fire alarms and fire trucks would have underscored the importance of the confessor’s statement. As such, and even accounting for my concerns described in the preceding two paragraphs, I have confidence that Ms. Flamand accurately recollected that which was stated by the man. I also take comfort in the fact that Mr. Kearns had a similar recollection of the man’s statement.

a.      Ms. Flamand’s evidence was unequivocal with respect to what the man said;

b.      Ms. Flamand was not particularly cross-examined on this point;

c.      The night was clear and, as such, there were no sounds of rain or other inclement weather to muffle the man’s statements;

d.      Ms. Flamand was relatively close to the man when he made this statement;

e.      The importance of the statement was undoubtedly etched in her mind by the sirens she heard shortly after the interaction; and

f.        Her evidence on the point was corroborated by Mr. Kearn’s testimony.

[154] With respect to the identity of the confessor, Mr. Kearns identified Mr. Marttinen.  He knew Mr. Marttinen from his stay in the psychiatric ward at the hospital

[157] Given both the strengths and weaknesses of Mr. Kearns’ evidence, I accept that the man who gave the West Side Confession was likely Mr. Marttinen. Mr. Kearns’ identification is based upon an extended knowledge of Mr. Marttinen and Mr. Kearns gave me no reason to believe that he had a negative animus towards Mr. Marttinen. He is therefore reasonably credible. Also, as will be seen below, I find that Mr. Marttinen likely confessed to Ms. Tracy Daigle. The Daigle Confession corroborates Mr. Kearns’ identification of Mr. Marttinen given the remote odds that two different people would confess in these circumstances.

[158] … When I factor in all of the aforementioned information, I am comfortable that Mr. Marttinen was probably the person who passed the West Side Café on the night of June 17, 2019 but I am not convinced of that fact beyond a reasonable doubt since the evidence proving identification has notable frailties.

The Daigle Confession

[159] Ms. Daigle’s evidence has significant issues that cause me considerable concern….

[166] Given all of these considerations, the reasonable possibility exists that Ms. Daigle heard Mr. Marttinen discussing the fire and innocently “filled in the blanks” believing that he confessed to dousing the church in gasoline and lighting a match.  Her mental health, terrible hearing and her conversations with rooming house tenants immediately after the fire are concerns that could easily lead to such a possibility.   Also, Mr. Marttinen’s propensity for making reference to “blowing things up” adds to the possibility that Ms. Daigle misheard Mr. Marttinen as the latter made a statement similar to those he had made in the past.

[167] Therefore, when I consider the strengths and weaknesses associated with Ms. Daigle’s evidence, I agree with the Crown that Mr. Marttinen probably confessed to Ms. Daigle that he set the fire in question.  While Ms. Daigle’s evidence is highly problematic, the corroboration offered by the Tim Horton’s videos makes me certain that Ms. Daigle met with Mr. Marttinen on the morning in question.  Further, Ms. Daigle’s knowledge of the source of ignition coupled with the corroboration offered by the West Side Confession[10] proves that Mr. Marttinen likely told Ms. Daigle that he doused the rooming house in gas and dropped a match.  Nonetheless, I cannot accept this evidence beyond reasonable doubt given the obvious weakness of Ms. Daigle’s evidence.

[168] Mr. Richer has a considerable criminal record that features convictions for break and enter, disguise with intent, use of an imitation firearm during the commission of an indictable offence, obstruct police officer and other offences. Accordingly, Mr. Richer’s record creates an immediate concern about his credibility.

[172] Defence counsel also put to Mr. Richer that Mr. Richer was in the process of being evicted prior to the fire.  Mr. Richer denied this fact and the landlord was not called as a witness.   I make no finding on this point as a result.  With that said, however, Mr. Richer was evasive on this point.  Mr. Richer admitted that he was ultimately thrown out of the rooming house and that a confrontation of sorts occurred with the landlord.  This evidence suggests that Mr. Richer may not have been entirely forthright when describing his relationship with the landlord prior to the fire.

[173] Mr. Richer was also the only person who claimed to see the unknown Indigenous woman on the driveway after the fire.  This unknown woman allegedly claimed that Mr. Gingras set the fire.  This evidence strikes me as odd since:

(a)               Presumably another witness would have seen this unknown Indigenous woman had she been at the driveway;

(b)               The only way this woman would have known that Mr. Gingras started the fire was if she was an eye-witness to same or if Mr. Gingras confessed to her;

(c)               Assuming that she witnessed the setting of the fire by Mr. Gingras, why would she blurt out the perpetrator’s name; and

(d)               Assuming Mr. Gingras confessed to the Indigenous woman, why would Mr. Gingras have done so?

[174] Mr. Richer also testified that he re-entered the building when it was already ablaze to ensure that other tenants escaped safely.  This was either an act of incredible heroism or was an act of an individual whose actions (i.e. setting the fire) went beyond his intentions and endangered the lives of others.  Mr. Marttinen argues that Mr. Richer was thus beset with guilt and went back into the building to ensure that no one was hurt by his actions.  Mr. Richer may well be capable of such heroism, however, given the other facts described in this section of my reasons, Mr. Richer’s actions could easily be informed by motives other than courage and audacity.

[175] In total, therefore, Mr. Richer appears to have had motive to seek revenge as against his landlord as a result of the golf car dispute and possibly a tenancy dispute.  Mr. Richer’s testimony about the unknown Indigenous woman is highly suspicious and his re-entry into the rooming house can be interpreted as the act of someone with a guilty conscience.  Mr. Richer is therefore a reasonable alternate suspect.

The Final Analysis

[176] When I examine the evidence as a whole, I am left in a state of reasonable doubt that Mr. Marttinen started the fire.  As noted above, I accept that Mr. Marttinen probably gave both the Daigle Confession and the West Side Confession, but I am not certain in that regard.  Although I have some misgivings about the evidence given by Ms. Daigle, Ms. Flamand and Mr. Kearns, the fact that Ms. Daigle does not know Mr. Kearns or Ms. Flamand suggests that Mr. Marttinen probably confessed to starting the fire on two separate occasions.  Normally, this fact would be powerful evidence that Mr. Marttinen in fact committed arson and therefore manslaughter.

[177] In the case before me, however, it must be noted that Mr. Marttinen often made bold statements about burning down or blowing up locations.  I have no evidence that he ever followed up on these threats.  In fact, witnesses dismissed Mr. Marttinen’s statements of this kind because he was, in their opinion, prone to these forms of exaggeration.  It is possible, therefore, that Mr. Marttinen stated that he burned down the rooming house without having done so.

[178] When I take this fact into consideration along with the evidential frailties associated with both the Daigle Confession and the West Side Confession, I cannot find beyond a reasonable doubt that Mr. Marttinen started the fire.  Specifically, I have a reasonable doubt that:

a.      Someone other than Mr. Marttinen uttered the West Side Confession;

b.      Mr. Marttinen did not, in fact, confess to Ms. Daigle but instead said something that Ms. Daigle mistook as a confession given Mr. Marttinen’s propensity to threaten to blow up locations; and/or

c.      Mr. Marttinen uttered one or both confessions but, like previous instances where Mr. Marttinen exaggerated his intentions, Mr. Marttinen did not in fact set the fire.

[179] These concerns are heightened by Mr. Richer’s suspicious evidence which gives plausible weight to an alternate suspect theory.  Put another way, my concerns with the West Side Confession and the Daigle Confession are such that I have a reasonable doubt that Mr. Richer may have set the fire.

[180] Had I not found Mr. Richer’s evidence highly suspicious and/or had I been able to accept Mr. Leonard’s evidence regarding Mr. Marttinen’s voice in the kitchen, I may have drawn a different conclusion in this matter.  As noted earlier in these reasons, Mr. Richer’s evidence was highly suspicious, and Mr. Leonard’s evidence was unreliable on this point.  Therefore, while I believe that Mr. Marttinen probably started the fire and caused Mr. Agawa’s death, I have a reasonable doubt in that regard.

[181] I must acquit Mr. Marttinen on the charges before the court.

CONCLUSION

[182] Mr. Marttinen is hereby found not guilty on both arson endanger life pursuant to s. 434.1 of the Criminal Code of Canadaand not guilty of manslaughter pursuant to s. 234 of the Criminal Code of Canada.

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