This week’s top three summaries: R v King, 2022 ONCA 665: Gladue in Corbett, R v Demirovic, 2022 NSCA 56: s.8 and #informants, and R v Starrett, 2022 ABKB 613: reduction #sentencing factors.
This week’s top case deals with the application of Gladue principles to things beyond sentencing. For great general reference on criminal law’s accounting for Indigenous experience, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
Indigenous People and the Criminal Justice System, 2nd Edition
R v King, 2022 ONCA 665
[September 26, 2022] The Impact of Gladue on Corbett Applications [Reasons by Fairborn A.C.J.O. and George J.A. with B.W. Miller J.A. concurring]
AUTHOR’S NOTE: Gladue principles, where they are properly applied are principally designed to lessen the moral culpability of some Indigenous people for offences they are being sentenced for. This should result in a decreased sentence. While the effectiveness of Gladue generally can be debated as remand and prison populations continue to swell disproportionately with Indigenous people, this case seeks to add Gladue principles for judicial consideration before sentencing commences. By preventing past systemic racism that has resulted in Indigenous people carrying criminal records that are excessive from affecting their credibility in criminal trials, this case provides a meaningful tool to address the Indigenous experience of criminal trials. Of course, the tool comes with loads of discretion for judges and discretion is a very ineffective tool at fixing systemic problems (particularly with consistency), but it is a start.
Overview
[1] The respondent was charged with second-degree murder after he shot and killed Yosif Al-Hasnawi in downtown Hamilton on December 2, 2017. There is no doubt that the respondent was the shooter. At trial, there were two questions that the jury had to resolve: (1) did the respondent act in self-defence; and, if not, (2) did he have the intention to commit murder? The jury returned a verdict of not guilty.
[2] …The second and third allege an imbalanced evidentiary record because the trial judge erred in excluding evidence of the respondent’s alleged involvement in a robbery just before the shooting and his prior assault convictions. As for the latter, the trial judge excluded those convictions in his ruling on the respondent’s Corbett application, in part because he accepted defence counsel’s submission that the respondent’s Indigeneity impacted the probative value and prejudicial effect of their admission, which the appellant contends was an error: see R. v. Corbett, [1988] 1 S.C.R. 670.
Factual Context
[4] The respondent had a very difficult background, one that will be reviewed in more detail later in these reasons. His parents were alcoholics, and he was placed into foster care when he was two or three years old. At the time of the shooting, the respondent was 19 years old and had an extensive youth and adult criminal record. He was of no fixed address, moving between the streets, cheap rental locations and friends’ homes. He admitted to struggling with multiple drug addictions and was both using and selling crystal methamphetamine daily.
[5] A few weeks before the shooting, the respondent had purchased a gun: a .22 Derringer with 20 hollow-point bullets. He testified that he acquired the gun because he feared for his safety after being violently robbed, which he says left him “really scared” and “paranoid”. He decided that he needed to protect himself.
[6] On the evening of the shooting, the respondent testified that he and his close friend from foster care, James Matheson, went to sell drugs to a new client and have a drink at a bar. Both the respondent and Mr. Matheson had already consumed crystal methamphetamine and alcohol earlier that day. The respondent had brought his loaded gun because, as he put it, he “didn’t really know” the new client and was not “a hundred percent sure” that he could trust the client “not to try anything.”
[7] On route, with the loaded gun in his pocket and Mr. Matheson at his side, the respondent encountered an elderly man on the street. On the other side of the street, standing outside of a mosque, were four young males: 19-year-old Mr. Al- Hasnawi, his 13-year-old brother Ahmed, and his friends from the mosque,…
[8] …All agree, however, that Mr. Al-Hasnawi called out to the respondent and Mr. Matheson. Mr. Al-Hasnawi’s brother and friends say that Mr. Al-Hasnawi called out to stop the respondent and Mr. Matheson from bothering the man. On any account, Mr. Al-Hasnawi’s yell prompted the respondent and Mr. Matheson to cross the street and walk toward the four young males at the mosque.
[9] The interaction between the group was brief. Although it was said to commence with “regular talking”, it soon escalated to the point that the respondent showed his firearm, which he said was meant to defuse the situation.
[10] The jury heard conflicting evidence about what transpired next. We will discuss the facts surrounding that interaction in the context of the issue involving self-defence. For now, what is important is that the respondent showing his gun did not defuse the situation at all. Rather, the situation continued to escalate to the point where the respondent and Mr. Matheson took flight. Mr. Al-Hasnawi ran after them and, just as he was catching up to Mr. Matheson, the respondent turned and fired his gun.
[11] At trial, the respondent testified that he acted on instinct when he fired the gun. He explained that he did so because he thought that either he or Mr. Matheson was going to be killed. He believed that the only reason Mr. Al-Hasnawi would have chased him knowing that he had a gun was because Mr. Al-Hasnawi “had one too.” At trial, his counsel argued that a reasonable person similarly situated would have thought the same.
[14] Mr. Matheson ultimately struck a plea deal with the Crown, pleading guilty to obstruction of justice. He gave statements to the police that incriminated both himself and the respondent, including suggesting that the respondent had laughed after the shooting and bragged about it to others. Mr. Matheson testified at the respondent’s preliminary inquiry, somewhat consistently and somewhat inconsistently with the Crown’s theory of the case. However, he became entirely uncooperative at trial, recanting most of what he had said earlier and, in many instances, professing a loss of memory. Mr. Matheson was then cross-examined on the statement of facts he agreed upon at his guilty plea, which was admitted into evidence for the truth of its contents: R. v. B. (K.G.), [1993] 1 S.C.R. 740.
ISSUE ONE – DID THE TRIAL JUDGE ERR IN THE INSTRUCTIONS TO THE JURY ON SELF-DEFENCE?
(a) Overview
[21] The appellant raises two objections in relation to how the jury was instructed on self-defence. The first objection has to do with what the jury was told. The second has to do with what the jury was not told.
[22] First, what the jury was told. The appellant contends that the trial judge erred by telling the jury that a “reasonable person” is a person with the “same characteristics and experiences” and the “same age, gender, physical capabilities and background” as the respondent. The appellant acknowledges that all but one of these descriptors of the “reasonable person” exist in the standard jury instruction. The one exception is the addition of the word “background”, which the appellant says would have triggered confusion and caused the jury to consider self-defence from a subjective standard rather than a modified objective one.
[23] Second, what the jury was not told. The appellant contends that the trial judge erred by failing to tell the jury that when assessing whether the respondent’s conduct was “reasonable in the circumstances” (s. 34(1)(c) of the Criminal Code,…
(d) The Alleged Error in the Jury Instruction
(i) The Direction Given
[48] The appellant takes issue with what the trial judge said next:
A reasonable person who has the same characteristics and experiences as [the respondent] that are relevant to [the respondent’s] ability to respond to what he reasonably believed was the use or threatened use of force. The reasonable person is a person of the same age, gender, physical capabilities and background. A reasonable person cannot be expected to know exactly what course of conduct or how much force was necessary or required in self-defence or in defence of another person. [Emphasis added]
[52] Here, the trial judge added one word to the standard wording asked for by the trial Crown. In our view, that one word added little to the instruction. Its addition did not convey to the jury that they should disregard everything else that had been said and deliberate upon a subjective standard.
[53] To the contrary, having regard to the totality of the instruction in the context of this charge as a whole, the word “background” acted as little more than a synonym for the words used in the immediately preceding sentence, where the jury was instructed that a reasonable person is someone who has the “same characteristics and experiences” as the respondent. It is this aspect of the instruction to which we now turn.
[78] In relation to both prongs, the trial judge reinforced for the jury that a “reasonable person” carried a specific definition:
A reasonable person is a sane and sober and not exceptionally excitable, aggressive, or fearful [person], a person who has the same powers of self-control that we expect our fellow citizens to exercise in society today.
[79] Telling the jury that a reasonable person is “sane and sober” and “not exceptionally excitable, aggressive or fearful” went a good distance to addressing the concerns now raised by the appellant on appeal. After all, the anti-social values that the appellant focusses upon in this court would not have fit within the definition provided for a “reasonable person”, as those qualities did not rest in sobriety. In fact, many of these qualities rested in the opposite of sobriety and actually placed the respondent within a category of people who were exceptionally excitable, aggressive and unnecessarily fearful. Therefore, much of what the appellant points to on appeal as evidence of anti-social conduct would have been removed or at least read out by the jury when following the language in the standard charge.
[80] Accordingly, although the trial judge may not have told the jury explicitly what to exclude from their reasonableness considerations, they knew what they could not include when considering the reasonable person. In effect, this landed the jury in the same place.
ISSUE TWO – DID THE TRIAL JUDGE IMPROPERLY EXCLUDE EVIDENCE OF THE RESPONDENT’S INVOLVEMENT IN A ROBBERY SHORTLY BEFORE THE SHOOTING?
(a) Overview
[92] The respondent is said to have been involved in an alleged robbery less than an hour before he killed Mr. Al-Hasnawi.
[93] Prior to trial, the Crown brought an application to elicit this prior disreputable conduct evidence through Mr. Matheson. That application failed. Then, nearing the end of trial, following the respondent’s testimony in-chief, the Crown asked the trial judge to revisit his ruling, claiming that the respondent had painted a picture that bolstered the relevance of the previously excluded evidence. As a remedy, the trial Crown asked that he be permitted to cross-examine the respondent on the alleged robbery. That application also failed.
[94] The appellant claims that the trial judge erred by dismissing both applications. For the reasons that follow, we see no reversible error.
(b) The Impugned Rulings
(i) The Pre-Trial Voir Dire: The Trial Crown Seeks Admission of Prior Disreputable Conduct
[96] At the admissibility voir dire, the sole evidence supporting the respondent’s involvement in the alleged robbery came from the transcript of Mr. Matheson’s testimony at the preliminary inquiry. That transcript reveals the following.
[97] In examination-in-chief, Mr. Matheson testified that he and the respondent robbed Aaron Porter, also known as “Angel”, about an hour before the shooting. He testified that upon seeing Angel, he and the respondent crossed the street and “demanded” money from Angel, after which Angel gave them a “handful of cash and [they] just took the money and left.” It was about $400 in total. Mr. Matheson said that if Angel had not given them the money, they “would have taken it” anyway.
[98] In cross-examination, Mr. Matheson’s memory of this alleged robbery waned substantially. He agreed that he had not been entirely truthful with the police on this point. He also agreed that he lies for no reason. He admitted that not only had he lied about the alleged robbery but that, in fact, all the details about it were “a little bit blurry” and “hazy” to him. For example, he could not remember what was said during the alleged interaction with Angel, who spoke to Angel, or whether the respondent had a gun at the time. In the end, he agreed that he had no “clear memory” of any of it, assuming, of course, that there was any such interaction. This was the entire evidentiary foundation upon which the initial admissibility ruling rested.
[99] Relying upon that evidentiary foundation, the trial Crown sought the admission of the alleged robbery evidence….
[100] The trial judge dismissed the application.
[101] First, he rejected the use of the robbery evidence for narrative purposes. According to him, other evidence could be adduced to assist the jury in making sense of the narrative in the case.
[103] In addition, the trial judge found that the prejudicial impact of admitting the alleged robbery evidence through Mr. Matheson, even assuming he would testify to it, was high because it held out a strong invitation for the jury to inappropriately reason that the respondent was a person of violent character and therefore, more likely to have committed the offence. The trial judge concluded that, even with a mid-trial and final jury instruction cautioning the jury about improper propensity reasoning, the risk of prejudice was simply too high.
[108] Similarly, the trial judge found in favour of the trial Crown to a limited extent when it came to whether the respondent had put his character in issue when he said that he did not think he was capable of such things. Although it was a close call, the trial judge held that the door had been opened “slightly to the introduction of good character, albeit ever so slightly”.
[109] For the trial judge, the key question in need of answer was one of remedy.
[110] According to the trial Crown, the appropriate remedy was: (1) revisiting the Corbett ruling, a ruling we will discuss below, to allow the Crown to elicit more convictions than initially permitted; and (2) permitting the Crown to question the respondent about the alleged robbery.
[111] The trial judge refused to revisit the Corbett application. In his view, having regard to the fact that the respondent had already testified in-chief about the convictions that had been the subject of admissibility in the Corbett ruling, too much prejudice would flow to the respondent if the Crown were permitted to introduce additional convictions during cross-examination. As the trial judge said, the jury would be left wondering why the defence was “holding back such an important conviction” and what they were “trying to hide”.
[113] In any event, despite the trial judge’s recognition that “things [had] evolved” since his initial ruling, he remained convinced that the probative value of the alleged robbery was outweighed by its prejudicial effect. Accordingly, he held that there was no “good faith basis” to cross-examine the respondent on this point.
(c) The Alleged Error in the Trial Judge’s Initial Ruling on the Crown’s Prior Disreputable Conduct Application
[115] The appellant maintains that the trial judge erred in his initial ruling.The error is said to be rooted in the trial judge’s finding that the alleged robbery “had no bearing or relevance” to the jury’s assessment of the respondent’s self-defence claim. The appellant maintains that the proposed evidence about the alleged robbery went directly to the respondent’s state of mind, which is relevant to whether an act is done in self-defence or in defence of another. The appellant contends that if the trial judge had properly understood the connection between the challenged evidence and its importance to the self-defence claim, he would have invariably concluded that the probative value of the proposed evidence outweighed its prejudicial effect.
[116] There is some traction to what the appellant says….
…That chain of reasoning went something like the following: participating in a robbery shortly before a shooting could tend to support an inference that the respondent was in an aggressive or hot-headed state of mind on the night in question which, in turn, could tend to support an inference that the respondent was the aggressor in the confrontation with Mr. Al-Hasnawi. Equally, it could tend to neutralize the suggestion that he was a scared victim on the night in question. If the Crown could prove the respondent was the aggressor, that would bear on the crucial issue of self-defence. This chain of inferences, even if tenuous, was sufficient to satisfy the threshold criterion of relevance.
[118] While the ultimate assessment of credibility is always for the jury, the strength and believability of the evidence establishing that the alleged discreditable conduct in fact occurred can be an important consideration in evaluating the probative value of proposed extrinsic discreditable conduct evidence: R. v. Aragon, 2022 ONCA 244, 413 C.C.C. (3d) 79, at para. 40. Indeed, when performing their gatekeeping function as it relates to prior discreditable conduct evidence, trial judges will frequently have regard to whether the subject evidence is “reasonably capable of belief”: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 134 (emphasis in original). This is particularly true where the prejudicial impact of admitting the evidence is high: Handy, at para. 134; see also Aragon, at para. 40; R. v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516, at para. 54; R. v. Johnson, 2010 ONCA 646, 262 C.C.C. (3d) 404, at para. 93; and R. v. J.W., 2013 ONCA 89, 302 O.A.C. 205, at para. 43.
[119] Read in context, the trial judge’s reasoning is clear. In his view, Mr. Matheson’s testimony about the alleged robbery, as reflected in the preliminary inquiry transcript filed at the voir dire, was not reasonably capable of belief. In contrast, the prejudicial impact that would flow from admission would have outweighed the probative value.
[120] …We are satisfied that even if the trial judge had identified the relevance of the evidence in the first place, having regard to the rest of his ruling, he undoubtedly would have arrived in the same place.
(d) The Alleged Error in the Trial Judge’s Refusal to not Allow Cross- Examination on the Robbery Evidence After the Respondent Testified
[121] Even if this court finds that the trial judge did not engage in reversible error in his initial ruling, the appellant contends that this court should find error in the second ruling, where the trial judge precluded the trial Crown from cross-examining the respondent on the alleged robbery….
[128] In our view, the trial judge was entirely responsive to the issues that arose. His reasons make clear that he appreciated both that the respondent had put his character in issue and that he had painted a somewhat distorted picture of his state of mind during his evidence in-chief. Importantly, however, the trial judge also appreciated that he had to look at the matter from the perspective of the entire trial and find a fair solution. In the end, the trial judge navigated a careful course forward.
[129] While the trial judge did say that the alleged robbery incident could not be put to the respondent in cross-examination because there was “no good faith basis” to do so, the terminology he used does not matter. What the trial judge was saying is that, in light of the entire context of the trial, it was simply not fair to introduce into the jurors’ minds the suggestion that the respondent was involved in a robbery with such uncertain contours, which may or may not have happened, and was only supported by a Vetrovec witness who the Crown ultimately agreed was a complete liar.
ISSUE THREE – DID THE TRIAL JUDGE ERR IN THE CORBETT RULING BY EXCLUDING THE RESPONDENT’S PRIOR CONVICTIONS FOR ASSAULT?
(a) Overview
[132] The respondent has a lengthy criminal and youth record. It contains a total of 21 findings of guilt under the Youth Criminal Justice Act, S.C. 2002, c. 1, and 8 convictions as an adult.[2] For ease, we will refer to all 29 of these matters as “convictions”.
[133] The respondent brought a Corbett application at the close of the Crown’s case, seeking the exclusion of multiple convictions. One of the arguments advanced in support of the Corbett application rested on the application of what counsel described as “Gladue principles”: see R. v. Gladue, [1999] 1 S.C.R. 688. Ultimately, the trial judge excluded many of the convictions, including all those related to assault. He made clear that, if it were not for the application of Gladue principles, a couple of the assault-related convictions may have been available to the Crown for cross-examination.
[135] This court has previously left open whether Gladue principles are relevant to a Corbett analysis: R. v. M.C., 2019 ONCA 502, 146 O.R. (3d) 493, at para. 87. The time has arrived to decide this issue.
[136] We will explain why we agree with the trial judge, the parties and the intervener, Aboriginal Legal Services (“ALS”), that an accused’s Indigeneity is a relevant, although not dispositive, factor to take into account in a Corbett application. We will then explain the correct methodology to apply in this context. We will conclude by explaining why we would not interfere with the trial judge’s exercise of discretion in this matter.
(b) Corbett Applications in General
[138] This orientation starts with s. 12(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5. Section 12(1) provides that once a witness takes the stand, thereby…
…putting their credibility at issue, cross-examining counsel are presumptively allowed to adduce evidence of prior convictions. It states: “A witness may be questioned as to whether the witness has been convicted of any offence…”. This applies to all witnesses, including an accused who chooses to testify in their own defence.
[139] The presumptive admissibility of prior convictions rests on the theory that they are relevant to a witness’ credibility when testifying: Corbett, at pp. 685-86; R. v. Stratton (1978), 42 C.C.C. (2d) 449 (Ont. C.A.), at p. 461; R. v. Brown (1978), 38 C.C.C. (2d) 339 (Ont. C.A.), at p. 342; and R. v. P. (N.A.) (2002), 171 C.C.C. (3d) 70 (Ont. C.A.), at para. 20. Indeed, as Dickson C.J. said in Corbett, at p. 685: “There can surely be little argument that a prior criminal record is a fact which, to some extent at least, bears upon the credibility of a witness”, “a fact which a jury might take into account in assessing credibility.”
[140] The nature of the previous conviction directly affects the extent to which it bears upon credibility. Historically, convictions for offences such as direct acts of deceit, fraud, cheating, theft and disrespect for the administration of justice have been considered particularly informative of a witness’ honesty: Brown, at p. 342; M.C., at para. 56; and R. v. Gayle (2001), 54 O.R. (3d) 36 (C.A.), at para. 81, leave to appeal refused, [2001] S.C.C.A. No. 359. At the same time, convictions for other types of offences can also inform credibility assessments. As noted in Corbett, at p. 686, in a passage adopted from State v. Duke (1956), 123 A.2d 745 (S.C.N.H.), at p. 746: even where convictions are disconnected from what are thought to be classic crimes of dishonesty, they have the potential to demonstrate a “[l]ack of trustworthiness” on the part of the witness, one that is “evinced by [an] abiding and repeated contempt for laws which [the accused] is legally and morally bound to obey”: see also Gayle, at para. 81; R. v. Thompson (2000), 146 C.C.C. (3d) 128 (Ont. C.A.), at para. 31; and M.C., at para. 56.
[141] With respect to a non-accused witness, typically there is no problem with the trier of fact learning about their history for prior discreditable conduct. For an accused, however, the concern is that when their criminal record follows them to the witness stand there is a risk that the convictions will be used not only to assess credibility but also for an improper line of reasoning: that the accused’s prior offending conduct means that they are the type of person to have committed the offence with which they are now charged.
[142] Accordingly, two important limitations have been placed on the use of an accused’s prior convictions. The first limitation is that, unlike other witnesses, the cross-examination of an accused on their criminal record is confined to convictions alone. The second limitation is that, in the normal course, barring the accused doing something that justifies a broader approach, they may only be cross-examined on three narrowly circumscribed areas: (1) the offence convicted of; (2) the date and place of the conviction; and (3) the punishment imposed in the wake of the conviction: Corbett, at pp. 696-97; Stratton, at pp. 466-67; M.C., at para. 55; and R. v. A.J.K., 2022 ONCA 487, at para. 50.
[143] But these limitations are not always sufficient to protect against the prejudice that can arise from the trier of fact learning of the accused’s offending past. Accordingly, in some circumstances, an accused who wishes to testify will seek to have their entire criminal record, or at least some convictions, excluded from the Crown’s arsenal for cross-examination. The presumptive admissibility of these convictions pursuant to s. 12(1) of the Canada Evidence Act places the onus for any such application directly on the defence.
[144] This is where the “Corbett application” comes in. A Corbett application is brought at the end of the Crown’s case and ruled upon before the accused is asked to say whether they will be calling a defence: R. v. Underwood, [1998] 1 S.C.R. 77, at paras. 7-9.
[145] The decision on a Corbett application is a discretionary one. Where the trial judge is satisfied on a balance of probabilities that the probative value arising from the criminal record is outstripped by the prejudicial effect that may arise from its admission, otherwise admissible convictions will be excluded. While not an exhaustive catalogue of factors, in calibrating the probative value and prejudicial effect of admitting the accused’s prior convictions, trial judges typically consider: (1) the nature of the convictions; (2) their remoteness or nearness to the matter under prosecution; (3) the similarity between the offences charged and the prior convictions; and (4) the risk of presenting a distorted picture to the jury: see Corbett, at p. 698, per Dickson C.J., and at pp. 740-44, per La Forest J. (dissenting); M.C., at para. 59; and R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 82.
[146] The question for purposes of this appeal is whether the Indigeneity of an accused should also be considered in the calculus.
(c) The Respondent’s Criminal Record and the Parties’ Positions at Trial
[147] On its face, the respondent’s criminal record speaks loudly of an obviously traumatic and troubled childhood and early adulthood. The respondent was born in December of 1997. He was 19 years of age by the time of trial and had accumulated 29 convictions, the vast majority of which he accrued in youth court.
[148] The record spans about four years of the respondent’s life, from 15 to 19 years of age. It contains multiple different convictions, including: fail to attend court; dangerous driving causing bodily harm; possession of a controlled substance; multiple counts of breaching probation; possession of property obtained by crime and over $5,000; break and enter; theft; mischief; and assault, including with a weapon and causing bodily harm.
[149] Of the five assaults for which the respondent has been convicted, only one was committed as an adult….
[150] After the Crown completed its case in-chief, the respondent brought a Corbett application to have many of his convictions edited from the record. He took particular aim at the assault-related convictions. It was his position that it was simply not necessary that the jury know about these convictions to aid them in assessing his credibility.
[151] While the respondent advanced many of the same arguments typically heard at a Corbett application, a novel argument was tacked onto the end of his submissions. This argument was that because of the respondent’s Indigeneity, if the jury were to learn about the extent of his criminal record, there was a heightened risk that it could cause an increased degree of prejudice to him.
[152] …While the trial Crown acknowledged that the respondent’s entire criminal record need not be revealed to the jury, he maintained that at least a “representative sampling” of the assault- related convictions should be admitted. In the end, the Crown sought the admission of three of these convictions.
(f) Gladue Principles
[167] We start this discussion with the following conceptual explanation.
[168] In this case, the parties and ALS, as well as the trial judge, rely on the term “Gladue principles”. This term was coined following the ground-breaking 1999 Gladue decision. The decision in Gladue provided guidance to sentencing judges on factors to be taken into account when sentencing Indigenous offenders. These considerations inform a sentencing methodology that is designed to focus upon the particular circumstances of Indigenous offenders that could “reasonably and justifiably impact on the sentence imposed”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 72. The Gladue factors that courts are directed to consider in particular exercises of judicial reasoning include the systemic or background factors that may have impacted the Indigenous offender’s path to court and the types of sentencing procedures and sanctions that may be appropriate in the circumstances because of the offender’s particular Indigenous heritage or connection: Gladue, at para. 66; Ipeelee, at para. 72. Ultimately, as in all sentencing matters, the aim is to achieve a fit and proper sentence in the individual circumstances of the case.
[169] As noted by Sharpe J.A. in Leonard, Gladue factors are not limited to criminal sentencing decisions. Rather, “they should be considered by all ‘decision- makers who have the power to influence the treatment of aboriginal offenders in the justice system’ (Gladue, at para. 65) whenever an Aboriginal person’s liberty is at stake in criminal and related proceedings”: Leonard, at para. 85. Gladue principles have been used in multiple contexts beyond the sentencing environment to inform exercises of judicial discretion. These include, for example, extradition hearings, bail hearings, publication ban applications, applications to withdraw guilty pleas, not criminally responsible findings and Review Board hearings, disciplinary hearings, correctional authority decisions and more: see e.g., United States v. Leonard, 2012 ONCA 622, 112 O.R. (3d) 496, at paras. 60, 85, leave to appeal refused, [2012] S.C.C.A. No. 490 (Leonard), and [2012] S.C.C.A. No. 543 (Gionet); United States v. Norton, 2017 ONCA 866, at paras. 9, 14; Carter v. Canada (Attorney General), 2021 SKCA 91, at paras. 31-33; R. v. Robinson, 2009 ONCA 205, 95 O.R. (3d) 309, at para. 13; R. v. Hope, 2016 ONCA 648, 133 O.R. (3d) 154, at paras. 9-12; R. v. Magill, 2013 YKTC 8, at paras. 16-17; R. v. Louie, 2019 BCCA 257, at para. 35; R. v. Cake, 2014 ONCJ 126, at paras. 43-51, aff’d 2014 ONSC 3413, at para. 39; R. v. C.K., 2021 ONCA 826, 159 O.R. (3d) 81, at para. 63; R. v. Sim (2005), 78 O.R. (3d) 183 (C.A.), at paras. 17-22; Jacob (Re), 2019 CarswellOnt 366 (Rev. B.), at paras. 40-43; Megan (Re), 2020 CarswellOnt 16128 (Rev. B.), at para. 36; Oakes (Re), 2019 CarswellOnt 18071 (Rev. B.), at para. 39; Chickite (Re), 2008 CarswellBC 3953 (Rev. B.), at para. 39; Law Society of Upper Canada v. Robinson, 2013 ONLSAP 18, [2013] 4 C.N.L.R. 129, at para. 74; Twins v. Canada (Attorney General), 2016 FC 537, [2017] 1 F.C.R. 79, at paras. 57, 64; and Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at paras. 57-58.
[170] As can be seen, the term “Gladue principles” has thus become a short form way of adverting to the idea that those involved in the criminal justice system, particularly judges exercising discretionary power, ought to be aware of the realities of the Indigenous people appearing before them. By this, we mean the historical and present-day treatment of Indigenous people that continues to perpetuate patterns of discrimination and has resulted in “lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples”: Ipeelee, at para. 60. Failing to recognize these realities can lead to further discrimination against Indigenous people and undermine efforts to apply the law impartially and equitably. We can put it no better than Moldaver J. in Barton, at para. 199: “when it comes to truth and reconciliation from a criminal justice perspective, much-needed work remains to be done.”
[171] While Gladue principles have particular salience in criminal sentencing, as noted above, they have been transposed to guide decision making in other legal contexts as well. The one at issue in this particular appeal is the Corbett application, where a trial judge must determine whether it would prejudice an accused’s right to a fair trial to admit into evidence some or all of the accused’s criminal record.
(g) Corbett Applications and the Gladue Principles
(i) Overview
[173] Trial fairness is the overarching concern in a Corbett application. Indeed, the whole purpose of a Corbett application, and the corresponding discretion to exclude or excise parts of the accused’s criminal record, is to ensure the “preservation of the right to a fair trial”: R. v. Saroya (1994), 36 C.R. (4th) 253 (Ont. C.A.), at para. 5.
[174] Fairness is best served when the accused’s credibility can be properly and accurately scrutinized by the trier of fact. This requires trial judges to pay particular attention in a Corbett analysis to the unique circumstances of an Indigenous accused, where those circumstances affect the probative value and prejudicial impact of their criminal record. As will be seen, this particularized Corbett analysis will help guard against the discrimination that, “as experience demonstrates, will occur where decision-makers fail to advert to the specific and particular problems faced by [Indigenous] Canadians in our system of justice”: Leonard, at para. 63; see also Ipeelee, at paras. 59, 67-68; Ewert, at paras. 58-59.
(ii) The Corbett Analysis and Indigeneity: Weighing Probative Value Against Prejudicial Effect
[176] The Corbett analysis requires courts to weigh the probative value of introducing an accused’s criminal record into evidence against the prejudicial effect that may result. It is the connection between the fact of the prior conviction and the credibility – or testimonial trustworthiness – of the accused that informs the probity of a prior criminal conviction. It is the danger of propensity reasoning that informs the prejudice that may arise from the trier of fact being informed of that conviction. Trial judges are frequently called upon to calibrate this balance in criminal trials.
[178] In the context of a trial involving an Indigenous accused, several of the Corbett factors may require further specification in order to put the trier of fact into an adequate position to accurately assess the prejudice and probative value of admitting past convictions. For the purposes of the analysis, it does not matter whether the application of the Gladue principles is conceptualized as a separate step in the Corbett analysis or a further specification of the existing Corbett factors – the substance of the analysis will be the same.
Probative Value
[179] When weighing probative value, it is necessary for trial judges to place the Indigenous accused’s criminal record within the context in which it has been accumulated, one that corrects for possible systemic biases, stereotypes and assumptions: Barton, at para. 199; Gladue, at para. 65; Ipeelee, at paras. 59-60, 67; Ewert, at para. 57; and Jillian Rogin, “Gladue and Bail: The Pre-Trial Sentencing of Aboriginal People in Canada” (2017) 95 Can. Bar. Rev. 325, at pp. 333-34.
[180] This context is important because it can inform the probative value of admitting the criminal record by detracting from the strength of the credibility inference that could otherwise be taken. The probative value of a prior conviction in a Corbett application is always rooted in the strength of the inference that can be drawn from the fact of the conviction to the testifying accused’s credibility. Accounting for any distortions caused by the possibility of stereotyping and systemic biases against Indigenous people may reveal that the criminal record is much less reflective of an Indigenous accused’s subjective disregard for the truth or contempt for the law than would otherwise appear. This, of course, drives down the probative value of its admission.
[181] Judges and others are not new to this contextual exercise. As previously noted, “Gladue principles” have informed decision making in a myriad of ways. Therefore, trial judges are well positioned to engage in the contextual exercise necessary when considering the probative value of an Indigenous accused’s convictions. That context involves the history and intergenerational impact of colonialism, the residential school system, dislocation, cultural assimilation and oppression, poverty, low education, loss of self-government, and social inequality: Ipeelee, at para. 83; R. v. Collins, 2011 ONCA 182, 104 O.R. (3d) 241, at paras. 34-36. Understanding and recognizing this context when considering the probative value of a conviction is fundamental to fair decision making and the preservation of the fair trial right.
[182] Trial judges need not insist on evidence of a direct causal link between a conviction and the overt and systemic racism experienced by Indigenous people before this context can be considered. While there must be some evidence to support the circumstances that have impacted the accused’s life, much like the evidence led in this case, there need not be a direct causal link established between those circumstances and the past offending conduct that resulted in the conviction. As in the sentencing context, it would be nearly impossible to draw a direct link between an accused’s experience of disadvantage resulting from historical discrimination and an accused’s criminal record: “the interconnections are simply too complex”: Ipeelee, at para. 83.
[183] Furthermore, to turn a Corbett application, necessarily occurring at the end of the Crown’s case and when the jury is on hold, into a complex evidentiary hearing, involving proof of linkage between convictions and Indigeneity, would create profound and unnecessary delay. We must remain ever mindful of imposing more demands on an already overly burdened and complex criminal justice system….
[184] …What the accused must do within the Corbett voir dire is what the respondent did in this case, albeit during his evidence in-chief (a process we would not endorse) – demonstrate that the systemic and background factors affecting Indigenous people in Canada is tied in some way to the particular accused and the conviction.
[185] Once this evidence is adduced, the trial judge can determine whether an inference can safely be drawn from the fact and nature of the conviction to a lack of credibility. Looking at the conviction in the context of discrimination – whether direct, indirect, or systemic – allows the trial judge to determine whether the accused’s criminal record makes it more likely that the accused is not the type of person to tell the truth or respect the authority of the law, or whether the impact of the experience of racism on this particular accused’s life renders the credibility inference so tenuous that admission of the conviction is gutted of its probative value.
[188] This sentiment was also expressed in R. v. Chocolate, 2015 NWTSC 28, 11 W.W.R. 575, at para. 50, where the court noted that an Indigenous offender’s history may lessen that offender’s culpability for accumulating convictions and failing to abide by pre-trial release conditions:
An examination of the intergenerational impact of the residential school system, cultural isolation, substance abuse, family dysfunction, inadequate housing, low education levels and un- or underemployment on an Aboriginal offender may inform questions about why an accused has an extensive criminal record and, if applicable, why that person has demonstrated an inability to comply with pre-trial release conditions in the past [Emphasis in original.]
[189] This is true in the bail context and it is equally true in the Corbett context. The “why” may well weaken the inferential link from the conviction to the testifying accused’s credibility. To use the words of Turnbull J. in R. v. Silversmith (2008), 77 M.V.R. (5th) 54 (Ont. S.C.), at para. 23, repeated infractions related to offences rooted in addiction, by way of one example, may well be “as consistent with alcohol addiction as with a flagrant desire to ignore court orders.” As the Supreme Court of Canada observed in R. v. Zora, 2020 SCC 14, 388 C.C.C. (3d) 1, at para. 79, the fact is that “Indigenous people, overrepresented in the criminal justice system, are also disproportionately affected by unnecessary and unreasonable bail conditions and resulting breach charges”: see also Abby Deshman & Nicole Myers, Set up to Fail: Bail and the Revolving Door of Pre-Trial Detention (Canadian Civil Liberties Association and Education Trust, 2014). Put simply, where a conviction stems at least in part from circumstances of disadvantage, rather than subjective contempt for the law or truthfulness, the degree to which it advances the credibility inquiry will be reduced. Therefore, placing the criminal record of an Indigenous accused within its proper context is essential to understanding the probity of the convictions as they relate to credibility.
[190] Convictions arising from guilty pleas and convictions for offences against the administration of justice are of particular note in this context. As for guilty pleas, this court has previously commented upon the fact that Indigenous people plead guilty at materially higher rates than non-Indigenous accused: C.K., at paras. 62- 63. There are myriad reasons for why this may be so, but the Honourable Frank Iacobucci, in his important report, First Nations Representation on Ontario Juries: Report of the Independent Review Conducted by the Honourable Frank Iacobucci (Toronto: Ontario Ministry of the Attorney General, 2013), at para. 215, shared his considered view that Indigenous people often resolve their criminal charges by pleading guilty because they “believe they will not receive a fair trial owing to racist attitudes prevalent in the justice system”. This suggests that, for Indigenous people, a conviction arising from a guilty plea may be less probative of credibility because of the despair that they “no doubt face when caught up in the criminal justice system”: C.K., at para. 64.
[192] …All that is changing is that, when determining the degree to which the conviction will assist in advancing the credibility inquiry, or, the probative strength of the conviction-to-credibility inference, trial judges will now also consider the matter within the context of the discriminatory effects of the historical and current treatment of Indigenous people.
Prejudicial Effect
[194] When an Indigenous accused is before the court, racist stereotypes lend considerable credence to the risk of propensity-based reasoning. As a result, when calibrating the prejudice that could result from the admission of prior convictions, trial judges must take notice of the fact that Indigenous people are often the objects of racism outside and inside the criminal justice system: Williams, at paras. 28, 54 and 58; Gladue, at para. 65; Ipeelee, at paras. 59-60; Ewert, at para. 57; and Barton, at para. 199. As the Supreme Court said in Williams, at para. 58, this racism “includes stereotypes that relate to credibility, worthiness and criminal propensity”. These beliefs are pervasive within Canadian society. They cause analytical problems in applying the law and may prevent triers of fact from assessing the credibility of Indigenous people fairly and accurately.
[195] …Of course, Corbett itself, paving the way to displace the statutory presumption of admission, is a recognition that the pre-existing procedural safeguards will not always be sufficient to guard against improper propensity reasoning. As Moldaver J. put it in Barton, at para. 176, while important, juror oaths and juror instructions directed at purging biases from the courtroom “are not a panacea”.
(h) Application to this Case
[197] …While it would have been preferrable had the trial judge conducted an evidentiary voir dire and not simply left it to defence counsel to elicit relevant evidence during examination-in-chief, no harm was occasioned by how the matter proceeded.
[198] The respondent’s testimony about his life as a young Indigenous male, who has experienced family separation, transience, addiction and abuse, was considered by the trial judge within the context of the overt and systemic racism experienced by Indigenous people. In the end, the trial judge excluded about half of the respondent’s criminal record. We see no error in that approach nor in the final conclusion that he reached. Indeed, the trial judge navigated a carefully balanced path that demonstrated his keen appreciation for how the respondent’s Indigeneity, placed in its proper context and considered alongside the other traditional Corbett factors, weighed in favour of numerous convictions being excluded. At the same time, the trial judge ensured that this did not leave the jury without the tools to assess the respondent’s credibility, allowing them to hear about 14 other convictions in total.
[199] In the end, the appellant’s main contention is that the trial judge should have allowed at least one of the assault convictions to be placed before the jury. The trial judge’s decision to the contrary is owed deference. We would simply point out that four of the five assault-related convictions resulted from when the respondent was a youth and, while the jury may not have known about these convictions, they certainly knew that the respondent was a recidivist. To this end, we adopt what Doherty J.A. had to say in Talbot, at para. 35, a case similar to this one, where the jury heard about 19 prior crimes but did not hear about the respondent’s 6 assault- related convictions:
The jury would no doubt see the very direct connection between many of the crimes the respondent had committed and his trustworthiness. It is difficult to think that the jury’s assessment of the respondent’s credibility based on his criminal record would have been different had they known that he had committed not only some nineteen crimes, many of which involved dishonesty, but had also committed six additional crimes of violence.
[200] Moreover, the fact is that the jury learned that the respondent had committed many prior offences, including multiple crimes involving traditional acts of dishonesty. By the end of the trial, having regard to the respondent’s own evidence, and particularly what was elicited during the cross-examination, the jury knew a great deal about his drug-related lifestyle and assaultive behaviours. In the context of the evidentiary record as a whole, the exclusion of the assaults would not have affected the availability of the credibility inference to the jury.
[201] Trial judges are afforded a wide berth of discretion in making their Corbett determinations: R. v. Charland, [1997] 3 S.C.R. 1006, at pp. 481-82; R. v. Wilson (2006), 210 C.C.C. (3d) 23 (Ont. C.A.), at para. 32. We owe that exercise of discretion deference. As Doherty J.A. said in Talbot, at para. 37, “this court does not review the correctness of the decision arrived at by the trial judge.” In this case, the trial judge’s exercise of discretion was not unreasonable, reflects no error in principle and is not tainted by a misapprehension of the material facts: see R. v. R.D., 2019 ONCA 951, 382 C.C.C. (3d) 304, at para. 13.
[202] This ground of appeal must fail.
Conclusion
[203] For the reasons given, we would dismiss the appeal….
R v Demirovic, 2022 NSCA 56
[September 15, 2022] Charter s.8 – Reasonable Grounds and Confidential Sources [Reasons by Wood C.J.N.S. with Beveridge and Bryson JJ.A. concurring]
AUTHOR’S NOTE: This case provides a great overview of the principles governing review of warrantless arrests on the basis of confidential source tips. It covers all the important portions of the assessment of whether a tip is compelling, credible, and corroborated. However, because it arose out of a complaint about the lack of reasons of the trial judge, it reinforces that judges have to give weight to the answers they assign to the three Debot questions. It is insufficient for them to declare, in conclusory fashion, that a tip was compelling, credible and corroborated. Here, the source of the tip both in credibility and whether it was compelling (ie. sourced in hearsay or rumour) required significant corroboration which was lacking.
Reasons for Judgment:
[1] On March 22, 2016, members of the Halifax Police Integrated Guns & Gangs Unit were conducting surveillance of Great Buys Auto Sales on Sackville Drive in Sackville, Nova Scotia (“Great Buys”). They suspected that individuals associated with Great Buys were involved in drug trafficking activities.
[2] The police had received information from confidential sources that cocaine was being delivered to Great Buys hidden in motor vehicles shipped from out of the province.
[3] Shortly after 11:00 a.m. a black Audi Q7 arrived at Great Buys carrying three individuals, two males and a female. The driver, Tyler Richards, was identified by one of the police officers as a person believed to be associated with drug trafficking. Shortly after their arrival, a “dealer” plate was placed on a silver Mercedes and the individuals left the premises in that vehicle. They returned a short time later with an additional passenger, the appellant, Jasmin Demirovic.
[4] Other than Mr. Richards, none of the occupants of the Mercedes were known to the members of the surveillance team.
[5] After Mr. Richards, Mr. Demirovic and the female passenger went into Great Buys’ premises; the other passenger, Anthony Roberts, transferred a black suitcase from the trunk of the Mercedes to the Audi. An hour later, the three males left Great Buys in the Audi and the female drove off in the Mercedes.
[6] The police followed the Audi and ultimately stopped the vehicle in Halifax where they arrested the three occupants on suspicion of trafficking in cocaine. They searched the vehicle. The locked suitcase was opened, and two 1-kilogram packages of cocaine were discovered. Messrs. Richards, Roberts, and Demirovic were charged with possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. Mr. Demirovic was also charged with breach of a probation order contrary to s. 733.1(1)(a) of the Criminal Code.
[8] Messrs. Roberts and Demirovic made an application to exclude the evidence of the cocaine found in the suitcase and a voir dire hearing took place before Judge Brinton on December 7 and 8, 2017. In that proceeding, the defence argued the arrests and subsequent search of the vehicle were illegal and contravened s. 8 and s. 9 of the Canadian Charter of Rights and Freedoms. They submitted that because of the breach of their Charter rights, the evidence obtained by the police should be excluded from trial pursuant to s. 24(2) of the Charter.
[10] On December 20, 2017, Judge Brinton gave a brief oral decision in which she dismissed the defence Charter application. The judge’s reasons set out her conclusion without any significant analysis. She explained that she would give a detailed decision later:
It is my intention to give an overview of my decision today. I’ll give my full decision later along with the trial decision.
[11] Despite promising to provide more detailed reasons for the voir dire decision, Judge Brinton never did so.
[15] I am satisfied that the December 20, 2017 voir dire decision does not contain sufficient information to permit meaningful appellate review. It does not demonstrate whether the trial judge properly applied the required legal principles or how she weighed the circumstances which needed to be considered in order to determine whether the arrest and subsequent search was lawful. It may have been her intention to provide those details in her trial decision, but she did not do so. For this reason, I would set aside Mr. Demirovic’s conviction and order a new trial.
Analysis
[19] I start my analysis with a review of the requirements for establishing grounds to arrest without warrant. I will then review the evidence at the voir dire and the submissions of counsel and consider the adequacy of the reasons delivered on December 20, 2017.
Requirements for Lawful Arrest
[20] The authority for a police officer to arrest a person without warrant is found in s. 495(1) of the Criminal Code which provides:
Arrest without warrant by peace officer
495 (1) A peace officer may arrest without warrant(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.
[21] In this case, the arrest of the occupants of the Audi on March 22, 2016 would have to be justified under subsection (a). The test for what constitutes “reasonable grounds” is found in the Supreme Court of Canada decisions in R. v. Debot, [1989] 2 S.C.R. 1140 and R. v. Garofoli, [1990] 2 S.C.R. 1421.
[22] In Debot, the issue was whether the police had reasonable grounds to believe the appellant was in possession of a controlled drug when they decided to search him. If not, the search would be unlawful. In assessing this question, the Court outlined the considerations in play (page 1168):
In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a ‘tip’ originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that the ‘totality of the circumstances’ must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
[23] As this passage indicates, the assessment of whether police have reasonable grounds is fact specific and varies depending upon the quality of the information known to them. For example, an informant whose tip is general in nature or whose reliability is unknown heightens the importance of having corroborative evidence.
[24] In Garofoli, Justice Sopinka outlined the propositions to be considered when police rely on an informer to establish reasonable grounds to conduct a search (page 1456-1457):
Although Greffe concerns admissibility under s. 24(2), in my opinion the discussion has a bearing on the sort of information that must be put before a judge issuing an authorization for electronic surveillance. I see no difference between evidence of reliability of an informant tendered to establish reasonable and probable grounds to justify a warrantless search (the issue in the cases cited by Lamer J.) and evidence of reliability of an informant tendered to establish similar grounds in respect of a wiretap authorization. Moreover, I conclude that the following propositions can be regarded as having been accepted by this Court
in Debot and Greffe.(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.
(ii) The reliability of the tip is to be assessed by recourse to “the totality of the circumstances”. There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:
(a) the degree of detail of the “tip”;
(b) the informer’s source of knowledge;
(c) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources.
(iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.
[25] This Court recently considered these principles in R. v. Simon, 2020 NSCA 25. In that case, police stopped Mr. Simon’s car and placed him under arrest for possession of drugs for the purpose of trafficking. The grounds for arrest were based primarily on confidential source information. After referring to the principles in Garofoli and Debot, the Court upheld the trial judge’s finding that the police did not have sufficient grounds to arrest Mr. Simon. The confidential sources indicated that Mr. Simon had been selling cocaine and prescription pills and stored them in his home. The Court described these statements as “conclusory” and “not compelling”. The analysis as to whether the informants were credible and reliable was as follows:
[31] In my view, the record does not support a finding that the informants were credible and reliable. Although the tips were not anonymous and neither informant had a criminal record for public mischief or perjury (ITO, ¶9-10), there were, as the trial judge noted (2019 NSSC 69, ¶15-19, 21-24), minimal if any objective indicators of their credibility and reliability.
[32] Corporal Kuchta’s testimony that the informants had previously provided information multiple times, once leading to a charge, reveals—without more detail—little, if anything, about the informants’ credibility or reliability.
[26] With the lack of compelling information and the unknown reliability of the informants, the issue of corroborative evidence was crucial. Its absence led directly to the conclusion there were not reasonable grounds to arrest Mr. Simon:
[27] This approach to the assessment of reasonable grounds ensures police have more than a mere suspicion. They must believe it is probable the target is engaged in criminal activity, and this belief must be objectively reasonable.
Voir Dire Decision
[38] Since the decision delivered on December 20, 2017 was not intended to include the trial judge’s full analysis of the Charter issues, it is relatively brief….
[40] The primary issue raised by counsel in argument, and acknowledged by the trial judge in her brief reasons, was whether the arrest of the occupants of the Audi was lawful. If it was, then counsel agreed the subsequent search was also lawful. To determine the lawfulness of the arrest, the police officer’s grounds must be examined through the lens of the Garofoli and Debot approach. This requires consideration of the entire circumstances including the source information. With respect to that evidence, the trial judge was required to ask herself the following questions:
- Was the information suggesting the occupants of the Audi were engaged in drug trafficking compelling?
- Were the confidential sources of this information reliable?
- Was the information which was obtained from the confidential sources corroborated by police investigation prior to the decision to arrest the occupants of the Audi?
[41] Not only must the trial judge consider these questions, she must assess the weight to be given to the answers. As illustrated in Debot, if one of the factors is weak, this could be offset by a corresponding increase in strength of one or both of the other factors.
[42] The trial judge’s decision does not tell us whether she went through the required analysis or how she assessed and weighed the factors. She referred to the “Garofoli/Debot test” but simply stated her conclusion that the grounds required to arrest the individuals existed.
[43] A review of the voir dire evidence suggests there are real concerns about the sufficiency of the evidence relied upon to justify the decision to arrest. The source information concerning Great Buys and Mr. Richards was general in nature and not corroborated by police investigation prior to the arrest. There is no indication how the informant knew of Mr. Richard’s prior involvement in drug trafficking and whether it was based upon personal observation or second-hand knowledge.
[44] Aside from the informant information, Det. Cst. Baird’s opinion that placing a dealer plate on the Mercedes and driving it off the lot was suspicious seems weak given the likelihood of individuals test driving vehicles at a car dealership. The sudden lane change and exit from Sackville Drive by the Mercedes and the U-turn by the female associate are equally capable of benign explanation.
[45] The information relied upon by Det. Cst. Baird is far from compelling, and it was incumbent on the trial judge to explain how this is outweighed by other circumstances so that the decision to arrest was objectively reasonable….
[47] To the extent that some aspects of her reasoning might be discerned from her brief decision, I am troubled by her reliance on the decisions in R. v. Brown and R. v. Clark (reported at 1987 Canlii 136 and 2010 NSPC 93) for the proposition that an unlawful arrest is not necessarily arbitrary. In both of those decisions the arrest was found to be lawful. However, in obiter the Courts said that if the arrests had been unlawful, they would not have been “arbitrary” as that word is used in s. 9 of the Charter.
[48] To the extent that these obiter comments imply that an unlawful arrest might not violate the Charter, such a suggestion was expressly rejected by the Supreme Court of Canada in R. v. Grant:
[49] The Supreme Court of Canada repeated this view earlier this year in R. v. Tim, 2022 SCC 12:
[22] Consistent with this purpose, a lawful arrest or detention is not arbitrary, and does not infringe s. 9 of the Charter, unless the law authorizing the arrest or detention is itself arbitrary (see Grant, at para. 54; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 20). Conversely, an unlawful arrest or detention is necessarily arbitrary and infringes s. 9 of the Charter (see Grant, para. 54; R. v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167, at para. 3).
[emphasis added]
[50] In addition to inadequately explaining her conclusion that the police had sufficient grounds to arrest the occupants of the vehicle, the trial judge appears to have applied an incorrect legal principle.
Conclusion
[53] For the reasons noted above, I conclude that the trial judge’s voir dire decision given on December 20, 2017 is inadequate to permit meaningful appellate review and incorporates incorrect legal principles. The result of the voir dire decision was to admit into evidence the cocaine obtained from the search of the Audi. Without that evidence the convictions cannot be sustained. I would allow the appeal, set aside the convictions, and remit the matter to the Provincial Court for a new trial.
R v Starrett, 2022 ABKB 613
[September 13, 2022] Sentencing: Gladue, Collateral Consequences, Harsh Bail Conditions, and State Misconduct [Justice John T. Henderson]
AUTHOR’S NOTE: Although two tragic stories underly this sentencing case some of the principles explained in thorough detail are something to be excited about. After Gladue principles are used to meaningfully reduce the sentence, the ruling goes on to explain and apply other principles to also reduce sentence including state misconduct (frightening comments by correctional guards), collateral consequences (administrative segregation, fecal bombing, protests at his home), and harsh bail conditions (house arrest with no work exceptions).
I. Introduction
[1] Mr. Starrett was convicted of manslaughter pursuant to s 234 of the Criminal Code of Canada, RSC 1985, c C-46 (the Criminal Code) in connection with the death of his one-year-old son, Ares. He was also convicted of common assault pursuant to s 266 of the Criminal Code in connection with his then five-year-old daughter.
[2] These are the reasons for the sentence that I impose in relation to the offences.
II. Circumstances of the Offence
[3] The circumstances of the offences are as described R v Starrett, 2022 ABQB 442 that was delivered on June 29, 2022. I will not repeat what is described in those reasons, other than the following: the violence Mr. Starrett inflicted on Ares was profound. He punched, kicked, and stomped this very vulnerable child in the head and facial areas multiple times. The attack resulted in right and left-sided skull fractures, fractures at the base of the skull, and extensive bruising to the face and scalp. One portion of the skull became displaced and was forced across and beneath the skull on the right side of the head. The displaced skull bone sheared off a portion of the right side of the brain. Within a few minutes, the child died due to blunt cranial trauma.
[4] The assault on Mr. Starrett’s daughter occurred at or near the same time as the attack on Ares. During the assault Mr. Starrett struck his daughter in the side of the head with a closed fist on at least two occasions. This resulted in bruising and bleeding to the side of the head and facial areas.
III. Circumstances of the Offender
[5] The evidence tendered at trial and on this sentencing hearing provides good insight into the personal circumstances of Mr. Starrett. This evidence comes from several sources.
[6] When Mr. Starrett testified at trial, he provided detailed information regarding his background, schooling, health history, employment background and his personal circumstances generally. In addition, a forensic psychologist, Dr. Ennis, also testified at trial regarding the results of his psychological testing of Mr. Starrett. The results of the psychological testing are also described in the report Dr. Ennis prepared and which was marked as a trial exhibit. I also have the benefit of a report prepared pursuant to R v Gladue, [1999] 1 SCR 688 (Gladue) (the Gladue Report) that provides additional detail focusing on Mr. Starrett’s background as an Indigenous Person.
2) Proportionality and the Relationship to s 718.2(e) of the Criminal Code
[59] Mr. Starrett is an Indigenous person. As such, the proportionality analysis must be undertaken in the context of his Aboriginal status. As explained by the Supreme Court in Gladue at para 66:
The background considerations regarding the distinct situation of [A]boringinal peoples in Canada encompass a wide range of unique circumstances, including, most particularly:
a) The unique systemic or background factors which may have played a part in bringing the particular [A]boriginal offender before the courts; and
b) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular [A]boriginal heritage or connection.
(see also R v Ipeelee, 2012 SCC 13 (Ipeelee) at para 59)
4) Application of Gladue Factors to the Facts
[63] The Gladue factors that have impacted Mr. Starrett are significant. When they are considered in totality, they serve to reduce Mr. Starrett’s moral blameworthiness.
[64] The evidence discloses several Gladue factors that arise from Mr. Starrett’s personal circumstances:
- Mr. Starrett’s family has a history of attendance at residential schools. Both maternal grandparents attended residential schools. We now fully recognize the intergenerational impact that the residential schools have had upon subsequent generations, including negative impacts with respect to substance abuse, the use of violence, and the loss of personal identity.
- There is a history of substance abuse in Mr. Starrett’s family. Mr. Starrett’s mother suffered from drug and alcohol dependence. This gives rise to the concerns regarding FASD and ADHD that were discussed in Mr. Starrett’s Glenrose Hospital records. Mr. Starrett also struggled with his own drug addiction issues, which are extensive.
- Mr. Starrett’s education is at the lower end. He did not finish grade 12.
- Mr. Starrett has been disconnected from his family and culture of origin. Mr. Starrett had essentially no contact with his biological father and was removed from the care of his biological mother at age 18 months. He was raised in a non- Indigenous home by persons with whom he had no direct family ties. Mr. Starrett’s feelings of abandonment arise from this placement and has resulted in a loss of connection to his Indigenous background, history, and traditions.
Mr. Starrett has a history of suicide attempts.
[65] It is very clear that Mr. Starrett was fully responsible for his actions that resulted in the death of Ares. However, Mr. Starrett was not responsible for the unfortunate circumstances that resulted in him being in the position he was in at the time of the assault on Ares. He was not responsible for the intergenerational impacts of residential schools that were visited upon him. He was not responsible for his mother’s addiction issues and her inability to care for him. He was not responsible for his removal from his mother’s care. He was not responsible for being placed in a non-Indigenous home. He was not responsible for being denied meaningful contact with his biological family and with his Indigenous culture. He was not responsible for his developmental disabilities, including the likelihood that he suffers from FASD and ADHD.
[66] All of these factors played into Mr. Starrett’s development and the psychological vulnerabilities that were described by Dr. Ennis. As a result, these Gladue factors did have an impact on Mr. Starrett as a person and serve to reduce his moral blameworthiness.
[67] Because the Gladue factors and the psychological vulnerabilities impact Mr. Starrett’s moral blameworthiness, the practical effect will be to reduce his sentence from that which would notionally be given to someone coming before the Court without being saddled with these factors.
VII. A Fit and Proper Sentence
[108] If it were not for the psychological and Gladue factors, I would have concluded that a nine-year jail sentence would be fit and proper. However, when I take into consideration the totality of the circumstances including the psychological and Gladue factors, I conclude that a seven-year jail sentence is fit and proper. This sentence must however be adjusted to account for state misconduct, collateral consequences, and restrictive bail conditions.
A. State Misconduct
[109] Mr. Starrett was in custody at ERC for approximately 4.5 months from the offence date until he secured release in early April 2020. On the day that Mr. Starrett was released, while waiting in a holding cell in the Arrivals and Departures Unit, Mr. Starrett was approached by one or more ERC guards who made the following comments to Mr. Starrett:
You are a baby killer they are letting you go. You’re a piece of shit.
Maybe I should tell the GP boys [i.e. prisoners in the general population] what you are in for.
I can’t believe they are letting you go. You should kill yourself.
[110] Immediately thereafter one of the ERC guards who had said these words went to a nearby cell containing other prisoners and said to the other prisoners:
He’s a fucking baby killer.
[111] These constitute disparaging remarks and express or implied threats to Mr. Starrett’s safety. This is grossly inappropriate conduct on the part of ERC guards who are charged with the responsibility of maintaining peace and security within ERC. These comments and actions were intended to and did have a direct and chilling effect on Mr. Starrett, thus significantly impacting Mr. Starrett.
[112] In R v Nasogaluak, 2010 SCC 6, the Supreme Court made it clear that the sentencing regime in the Criminal Code provides sufficient flexibility to permit a Court to consider state misconduct as a factor in sentencing, provided that the misconduct relates to either the circumstances of the offence or the offender and had an impact on the offender: para 3.
[113] Misconduct by state actors can include the actions of remand center guards. In R v Gallant, 2018 ABCA 314 the Offender was in custody at ERC awaiting trial when he was assaulted by two ERC guards….
[114] In this case, I am satisfied that a sentence reduction of three months is appropriate. The conduct of the ERC guards was not just unprofessional. It was a gross violation of their duty to protect all prisoners at the ERC. It is not part of their function to assault, threaten, or intimidate prisoners. Nor is it part of the function of ERC guards to incite other prisoners in a way that could potentially cause harm to other prisoners. The Court must firmly disassociate itself from this type of behaviour.
[115] The misconduct of the ERC guards had a direct impact on Mr. Starrett. The unchallenged evidence is that Mr. Starrett was in a very fragile emotional state at the time of his release from ERC in April 2020. The actions of the ERC guards added to Mr. Starrett’s feelings of anxiety, worry, and upset, and Mr. Starrett was scared that he was going to be harmed.
B. Collateral Consequences
[116] The Defence argues that a series of collateral consequences suffered by Mr. Starrett should justify some adjustment of the sentence. The Defence argues that Mr. Starrett’s sentence should be mitigated to account for him housed in administrative segregation while at ERC, and vigilantism during Mr. Starrett’s time at ERC and while on release.
[119] In R v Suter, 2018 SCC 34 (Suter), the Court explained that collateral consequences should be taken into consideration in sentencing because it permits the court to consider all relevant information regarding the offender and the offence. The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity pursuant to s. 718.2(b) of the Criminal Code and speak to the personal circumstances of the Offender: R v Pham, 2013 SCC 15 at para 11. A collateral consequence includes any consequence that impacts the offender and arises from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence: Suter at para 47. Any reduction cannot reduce the sentence to something that is not proportionate: Suter at para 56.
[120] In Suter, the Supreme Court concluded that it was appropriate for the Sentencing Judge to consider the collateral consequences that Mr. Suter suffered at the hands of vigilantes in sentencing Mr. Suter. Mr. Suter was kidnapped from his home in the middle of the night by three hooded men. He was handcuffed and a canvas bag was placed over his head. His kidnappers then drove him to a secluded area, cut off his thumb with pruning shears, and left him unconscious in the snow.
[121] Mr. Starrett was in custody at ERC from the date of the offence on November 23, 2019 until his release on April 9, 2020. He was returned to custody at ERC on June 29, 2022, and has remained there until today. For almost all his time at ERC Mr. Starrett was housed in administrative segregation. This meant that he was restricted to his cell except for exercise time. For approximately three weeks in December 2019 and again beginning on July 30, 2022, Mr. Starrett was permitted two hours of exercise time per day. For the remainder of his time in custody, Mr. Starrett had only one hour of exercise time per day. For his own safety and at his request, most of Mr. Starrett’s exercise time was taken alone but, also at his request, from time to time, he exercised with other prisoners.
[122] I am satisfied that the extent of the administrative segregation is worthy of some credit as a collateral consequence. While there is no evidence as to the psychological or physical impact the administrative segregation had on Mr. Starrett, I am prepared to infer that this time in custody was much harsher than was experienced by other remand prisoners. I also infer that this had a negative psychological impact on Mr. Starrett, but I have no basis of determining the extent of that impact.
[123] While in custody at ERC Mr. Starrett was the subject of two incidents of “fecal bombing” where other prisoners filled a container with fecal material and sprayed it into his cell. While far less significant than the impact of Mr. Starrett’s time in administrative segregation, this is also a factor that can be considered as a collateral consequence.
[125] Finally, after Mr. Starrett was released from the ERC, and for a period of time thereafter, he was subjected to vigilante protests and threats by members of the public outside of his residence. In accordance with Mr. Starrett’s release conditions, he was not free to leave the residence and thus was not able to escape these protests. In Suter, the Court concluded that it was appropriate to consider this type of vigilantism to a limited extent in determining a fit and proper sentence. However, in Suter, the consequences were extreme. The consequences to and impact of the protests on Mr. Starrett are simply not comparable. Nevertheless, I take them into account.
[126] For these reasons I reduce Mr. Starrett’s sentence by 4 months to globally take into consideration the collateral consequences.
C. Harsh Bail Conditions
[127] Mr. Starrett was released from ERC on April 9, 2020, and subject to the terms of a release order until he returned to custody the guilty verdict on June 29, 2022.
[128] The release order made Mr. Starrett subject to house arrest with the only exceptions to be:
- One hour of exercise outside the home but no further than 500 meters of the residence with an accompanying adult (who must be within 2 meters) between 7:00 am and 10:00 pm
- Attend at RCMP detachment and at his Bail Supervisor’s office
- With the permission of his Bail Supervisor, Mr. Starrett was permitted too Attend lawyer appointments
o Attend medical appointments
o Other exceptions on an emergency basis
[129] This was a true house arrest order. Mr. Starrett was not permitted to leave the home for the purposes of work, or to shop for the necessaries of life, which are conditions routinely found in house arrest release orders. The terms of Mr. Starrett’s release were very strict.
[133] In R v Eliasson, 2021 ABCA 188 the Court affirmed that credit on a 1:1 basis was not warranted, notwithstanding that the house arrest release conditions were the equivalent of the terms of a conditional sentence order.
[134] On the other hand, in R v Newman, 2005 ABCA 249, the Court dismissed a Crown appeal from a sentence where 1:1 credit was given for bail conditions that amounted to house arrest. The sentencing judge noted a conditional sentence order could not have contained more restrictions on the Offender’s liberty.
[135] I am satisfied that the release conditions impose on Mr. Starrett were very restrictive. The onerous nature of the conditions, and the resulting restrictions on his liberty justify some credit against the sentence. However, as Courts of Appeal have noted, “bail is not jail” (Faulkner at para 10; Ijam at para 12). While Mr. Starrett was not able to leave the home for work or other activities, he was able to live with his grandparents and, for a period of several months have his girlfriend live with him.
[136] When I consider all of the circumstances, particularly the restrictive nature of the release conditions, I am satisfied that Mr. Starrett’s sentence should be reduced on a 0.5:1 basis for each day of his release.
[137] Mr. Starrett was on release from April 9, 2020 to June 29, 2022 or a total of 811 actual days. His sentence should be reduced by 406 days or 13.5 months.
[138] I impose a sentence of seven years or 84 months jail on Mr. Starrett. Three months will be deducted for state misconduct. Four months will be deducted for collateral consequences and 13.5 months will be deducted for strict bail conditions. A total of 20.5 months will be deducted. This leaves an adjusted sentence of 63.5 months.
Indigenous People and the Criminal Justice System, 2nd Edition
