This week’s top three summaries: R v Ball, 2019 BCCA 32, R v Khan, 2019 ONCA 81, and R v James, 2019 ONCA 288.

R v Ball (BCCA)

[Jan 28/19] False Confessions - Authentication of Electronic Records & Time Stamps - Crown leading Bad Character Evidence - 2019 BCCA 32 [Reasons by Dickson J.A., with D. Smith J.A., Fisher J.A. Concurring]

AUTHOR’S NOTE: This case is chalked full of useful nuggets for the Defence.  All of the errors combined to render the trial unfair.  The false confession portion applies to judge alone trials as well by way of required "self-instruction."  The authentication of electronic records provides a useful counter balance to the trend of the courts allowing all evidence to be admitted and relegating reliability issues to weight.  Authentication is an admissibility issue that goes beyond the normal prejudicial vs. probative analysis.  If the purpose of trials is to establish the truth, it is difficult to understand why courts should permit the entry of evidence which is of dubious reliability and provenance.  Such evidence makes the search for truth more difficult. Finally, the prohibition against leading bad character evidence is a bright line for the Crown.  There are no excuses for leading this in the absence of a void dire and few excuses for the court not immediately addressing it.

Pertinent Facts

"Jonathan Ball confessed to police that he burned down the house and garage of an estranged acquaintance.  According to his former girlfriend, he told her the same thing.  On January 25, 2016, following a six-day trial, a jury convicted Mr. Ball of two counts of arson and two counts of breaking and entering in connection with the fires.  On March 24, 2016, the presiding judge sentenced him to 15 months’ imprisonment followed by two years of probation." (Para 1)

Mr. Ball was in a band with Mark Maskell. "Between 2011 and early-2013, he and Carmen Lacey lived together in a turbulent "on-and-off" relationship. By June of 2013 they had broken up, but they remained in contact and were considering the possibility of a reconciliation, although, unbeknownst to Ms. Lacey, Mr. Ball was also romantically involved with Brooklyn Mrychka. Ms. Mrychka was Mark Maskell's former girlfriend." (Para. 5-6)

"Messrs. Ball and Maskell fell out when Mr. Ball started dating Ms. Mrychka. As a result, Mark Maskell quit the band. Shortly thereafter his father returned most, but not all, of Mr. Ball's music equipment. In particular, Mr. Maskell did not return an amplifier that belonged to Mr. Ball." (Para 7)

The garage and house on the property of thee Maskell's burned down. Police suspected arson due to a broken window in the back of the home.  (Para 8)

"Approximately two weeks after the fires, Ms. Lacey walked into the Parksville RCMP detachment and informed Constable Carr that Mr. Ball told her he set the fires at the Maskell property. Ms. Lacey said she discussed the fires with Mr. Ball, in person and over Facebook, and she called up several Facebook messages on a detachment computer monitor, which Constable Carr photographed. The first photograph was of a message sent, according to the history timeline, at 3:27 p.m. on June 27, 2013 by "Johan Gorrific Amputation", which Ms. Lacey identified as Mr. Ball's Facebook name. It read: "I was at Marks. There's nothing left of the garage. I broke in the basement of the house and looked for anything of value, couldn't find anything so I lit the basement on fire". Other photographed messages included discussion of the fires and Ms. Lacey's advice that Mr. Ball "[e]rase anything u said here"." (Para 10)

When confronted with he Facebook messages during his interrogation, Ball suggested they looked fake.  "As the interview progressed, however, Constable Racz suggested that Mr. Ball broke into the Maskell property to get his amplifier back and lit the place on fire when he could not find it. After more denials and an attempt to implicate Ms. Lacey, Mr. Ball confessed that he set the fires." (Para 11)

"The police did not attempt to identify and search the computing device used to record the Facebook messages or locate the rock that Mr. Ball said he used to break the basement window at the Maskell property. Nor did they find forensic evidence linking him to the fires. After he confessed, Mr. Ball was charged with two counts of arson and two counts of breaking and entering. He retained trial counsel to represent him and elected to be tried by a judge and jury." (Para 13)

At trial, counsel argued the confession was false, partially as a consequence of a mental illness. (Paras 22, 27)

The False Confession

"A confession is an out-of-court statement made by an accused to a person in authority, often a police officer.  Presumptively inadmissible unless proven voluntary, confessions are a particularly powerful and damning form of evidence.  This is true, at least in part, because it seems inherently unlikely that an innocent person would incriminate himself or herself by falsely confessing to a crime in response to police questioning.  People do not normally confess to crimes they have not committed: Pearce at paras. 48-53; R. v. Hart, 2014 SCC 52 (CanLII) at para. 102.  As Justice Iacobucci put it in R. v. Oickle, 2000 SCC 38(CanLII) at para. 34, the proposition that a confession is false is “counterintuitive”." (Para 53)

"However, false confessions can and do occur for a variety of reasons in a wide range of circumstances.  When admitted as evidence, they can lead to miscarriages of justice because they have a significant impact on the decision-making process undertaken at trial.  An accused can be convicted on the basis of a confession alone, despite the absence of any confirmatory evidence whatsoever: R. v. Singh, 2007 SCC 48 (CanLII) at para. 29.  And judges and juries tend to disbelieve ex post facto recantations by those who have previously confessed: Pearce at paras. 48-53, 129." (Para 54)

"[N]ot all false confession claims can be properly adjudicated by applying the common law confessions rule and excluding those that are not proven voluntary.  Although rare, even admissible confessions may be false: Pearce at para. 60." (Para 55)

"[T]he extent to which a judge should review and relate the evidence to the live issues when instructing a jury is also case-specific.  In cases involving a purportedly false confession, the content and form of an appropriate jury instruction is a discretionary matter for the judge based on the exigencies of the case.  That said, in my view, in addition to cautioning the jury generally about the phenomenon of false confessions, the judge should review the accused’s explanation for allegedly confessing falsely, relate the salient evidence to the false confession defence and review the extent to which the confession’s details are consistent with or conflict with independently verifiable circumstances.  In doing so, the judge should avoid expressing any personal disbelief, direct or inferential, in the accused’s ex post facto recantation.  Overall, the instruction will be adequate so long as it dispels the common assumption that nobody would confess falsely and it provides the jury with necessary assistance to evaluate the reliability of the confession in conducting the fact-finding process:  Pearce at paras. 118-120, 127-135; Colpits at 753."

"Unfortunately, however, the judge did convey a measure of personal scepticism regarding Mr. Ball's ex post facto recantation when he characterized his medical condition as "self-reported". He made this remark when instructing the jury on how to assess the truth of the confession. The remark followed his statements that the jury should take into account Mr. Ball's condition "if you find the accused was suffering from any mental disability" and that the defence "suggested" Mr. Ball's personality, combined with a lack of medication and the manner of the interview, led to a false confession. It also immediately preceded his instruction that the jury should also take into account Mr. Ball's demeanour throughout the interview, which demeanour the Crown contended did not accord with his self-described mental state when he was interviewed." (Para 62)

"Considering the judge's remark in this context, the jury could have inferred that he thought the absence of independent evidence regarding Mr. Ball's medical condition diminished the reliability of his self-report and thus detracted from his explanation for confessing falsely. In my view, he erred in making the remark. It was subtly disparaging and factually inaccurate." (Para 63)

"Nevertheless, considered on the whole, it did not render the charge on the false confession defence inadequate, nor, standing alone, seriously compromise fundamental trial fairness. However, as discussed below, it was not the only error of consequence that was made in the course of the trial." (Para 64)

Authentication of Electronic Records, Time Stamps, and the Canada Evidence Act

"Facebook posts and messages, emails and other forms of electronic communication fall within the definition of an “electronic document”.  Home computers, smartphones and other computing devices fall within the definition of a “computer system”.  Accordingly, the admissibility of Facebook messages and other electronic communications recorded or stored in a computing device is governed by the statutory framework.  As with other admissibility issues, where there is reason to question whether an electronic document meets the statutory requirements, a voir dire should be held and a reasoned determination made as to its admissibility.  This step is particularly important in the context of a jury trial:  R. v. Soh, 2014 NBQB 20 (CanLII) at paras. 26, 32; R. v. Donaldson, 2016 CarswellOnt 21760 at para. 3; R. v. K.M., 2016 NWTSC 36 (CanLII) at para. 40; “Proof and Progress” at 195." (Para 67)

"In many cases, electronic documents are tendered to prove the truth of a statement allegedly input into a computer (for example, Mr. Ball’s alleged statement that “I lit the basement on fire”).  In these circumstances, general hearsay rules apply.  Relevant content might also include information created mechanically by the computer, such as coded Internet Service Provider information or date and time stamps (for example, the history timeline shown on the photographed Facebook messages).  “Computer by-product evidence” of this kind is original or real evidence, not hearsay.  Depending on the circumstances, expert evidence may be required to explain the meaning of the computer-generated information or the accuracy or reliability of the generating technology, although, in the absence of cause for doubt, circumstantial evidence or lay witness testimony is often sufficient.  Regardless, expert evidence is not required to explain generally how commonplace technologies such as Facebook, text messaging or email operate if a lay witness familiar with their use can give such testimony: K.M. at paras. 12-15, 40-44; Soh at paras. 27-30; “Proof and Progress” at 184-186, 188, 198, 211." (Para 69)

"The statutory rule relating to authentication codifies the common law authentication rule.  The burden of proof is on the tendering party and the threshold is low: is there evidence, direct or circumstantial, to support a finding that an electronic document is what the tendering party claims it to be?  If so, the document is adequately authenticated, although this does not necessarily mean that it is genuine.  That is a question of weight for the fact-finder which often turns on determinations of credibility: R. v. Hirsch, 2017 SKCA 14 (CanLII) at para. 18; “Proof and Progress” at 197." (Para 70)

"Like the common law best evidence rule, the statutory rule is intended to help ensure that an electronic document accurately reflects the original information input into a computing device by its author.  The framework provides alternative methods of satisfying the rule, some of which rely on statutory presumptions available in the absence of evidence to the contrary.  Section 31.2 provides for proof, direct or circumstantial, of the integrity of an electronic documents system, proof via secure electronic signature and proof via printout; s. 31.3, for presumptions of integrity with respect to electronic documents systems; s. 31.4, for presumptions regarding secure electronic signatures; and s. 31.5, for consideration of relevant standards, procedures, usages and practices.  The standard of proof for the prerequisites to admissibility is the balance of probabilities: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103; “Proof and Progress” at 202." (Para 73)

"Canadian courts adopt a functional approach to interpretation and application of the statutory framework. In Soh, Justice LaVigne held that both screen capture printouts of Facebook messages and photographs of a computer screen displaying those messages are "electronic documents" and she conducted a voir dire with respect to their admissibility. Given the absence of evidence to the contrary, she found that the electronic documents system on which the messages were recorded was reliable based on the testimony of a lay witness who exchanged them with the accused and the investigating officer who captured, printed and photographed them. However, she admitted only the screen capture printouts because, she held, they constituted the best evidence of the accused's recorded admissions whereas the photographs of the computer screen did not." (Para 75)

Here, "there were several admissibility issues that required consideration and attention. The Crown proffered the electronic documents in photographic form and introduced them through Constable Kiperchuk, who had no personal knowledge of their source or origins. Constable Carr, who took the photographs and presumably operated the police computer system on which the data was called up, was not called and, while trial counsel could have made admissions on these matters, he did not. Nor did trial counsel concede that the photographs met the applicable admissibility criteria, as he did with respect to the confession." (Para 83)

"Ms. Lacey also testified she could not remember exact times and she provided neither direct nor circumstantial evidence specifically concerning the accuracy of the computer-generated time stamps or the reliability of the computer systems on which the data was recorded, displayed and photographed." (Para 84)

"In contrast, in this case, Mr. Ball contended a tamperer created the Facebook messages by accessing his account on a computing device that he did not own and the Crown's only authenticating witness, Ms. Lacey, was the alleged tamperer. In addition, unlike M.(K.), there was no evidence, direct or circumstantial, regarding the accuracy or reliability of the computer-generated time stamp." (Para 85)

"[I]n this case no one investigated whether the messages were recorded using Mr. Ball's computing device, although police knew he claimed they were "faked" and was advancing a defence of false confession. In addition, here, as in Bernard, at trial the Crown proffered photographs rather than printouts as proof of the electronic information in question." (Para 86)

"It is sufficient to say there is a realistic possibility that, properly scrutinized, the judge may have justifiably excluded or limited the evidentiary use of the photographs. In these circumstances, in the absence of a clear concession from counsel, the judge should have made these determinations in the first instance, on a voir dire, in the absence of the jury. However, he did not, apparently because all concerned overlooked the need for him to do so." (Para 87)

"At the very least, this was a procedural error. Mr. Ball was entitled to be tried on only carefully scrutinized and plainly admissible evidence, particularly where that evidence was critically important... Mr. Ball was deprived of an important procedural protection, which compromised trial fairness and contributed to what was, overall, a miscarriage of justice. (Para 88)

Bad Character Evidence

"[T]he Crown is prohibited from adducing evidence of an accused’s bad character, subject to three exceptions: i) where the accused’s character is relevant to a live issue in the case; ii) where the accused puts his or her character in issue; or iii) where the evidence is adduced incidentally to proper cross-examination of the accused on credibility: G.(S.G.) at para. 63; R. v. Lawrence, 2015 BCCA 358 (CanLII) at paras. 47-51." (Para 90)

"If the judge fails to give a limiting instruction where it is required, that failure can amount to a reversible error of law: Dvorak at paras. 39-45." (Para 91)

"Like Mr. Dvorak, Mr. Ball was placed in the untenable position of either having to ignore the bad character evidence or try to explain it away before the jury. Like Mr. Dvorak, Mr. Ball chose the latter path. This was not a choice he should have faced. It meant that he had to deal with irrelevant and damning allegations that he pushed, grabbed and choked Ms. Lacey, as well as meet the charges that he set the fires at the Maskell property. It created a risk that the jury might infer from the evidence that Mr. Ball was an abusive partner that he was also a malicious arsonist." (Para 95)

"Regardless of whether trial counsel objected, the judge should have stopped Crown counsel when he elicited evidence from Ms. Lacey that Mr. Ball assaulted her. On its face, this evidence was irrelevant, inadmissible and prejudicial to Mr. Ball. If there was an arguable basis for the Crown's apparently improper questions, the judge should have canvassed it with counsel in the absence of the jury. Instead, he admitted the evidence without comment or intervention." (Para 96)

"In my view, the admission of the bad character evidence and the lack of appropriate warning, both legal errors, compromised trial fairness. As in Dvorak, there is a risk that the accused was convicted for the wrong reasons; in this case, because he was an abusive partner, rather than because the Crown proved beyond a reasonable doubt that he set the fires. Although I see that risk as minimal, when these errors are considered together with other trial irregularities, I conclude they also contributed to an overall miscarriage of justice." (Para 98)

Conclusion

" In my view, the cumulative effect of the errors and irregularities in Mr. Ball’s trial rendered it unfair and resulted in a miscarriage of justice.  Near the trial’s outset, key Crown evidence was admitted without its questionable admissibility having been tested.  The origin of that evidence was not fully investigated, it was introduced in photographic form through a witness with no personal knowledge and it was immediately provided to the jury, with whom it remained throughout the entire proceeding.  As the trial progressed, Crown counsel elicited irrelevant and prejudicial evidence that Mr. Ball was an abusive partner, no one intervened and the judge did not warn the jury to disregard it.  At the end of the trial, the judge expressed undue scepticism regarding Mr. Ball’s self-report of poor mental health, which condition Mr. Ball relied upon in advancing his defence of false confession." (Para 121)

R v Khan (ONCA) 

[Feb 1/19] Circumstantial Evidence: Drug Possession - 2019 ONCA 81 [K. Feldman J.A., P. Lauwers J.A., and I.V.B. Nordheimer J.A.]

AUTHOR’S NOTE: Sometimes Defence lawyers need a short pithy case that states the law without too much meandering.  That way everyone has time to read and apply it in a busy trial court.  Khan provides that in spades.  Judges have to consider other plausible theories and possibilities in drug possession cases based on circumstantial evidence.

Pertinent Facts

"The appellant appeals his conviction for possession of cocaine for the purpose of trafficking. The appellant was found by the police in the back seat of a car with a "dime bag" (0.55 grams) of crack cocaine in his wallet. He does not contest his conviction for possession of that drug." (Para 1)

"He was in the car with two other men in the front, who were also convicted of possession for the purpose of trafficking in relation to a large plastic sandwich bag hanging out of the kangaroo pouch on the back of the front passenger seat of the car. That bag contained 14.78 grams of bulk crack cocaine, 14.12 grams of bulk powder cocaine and 7 small baggies containing small amounts of crack cocaine, and was hanging in close proximity to the appellant." (Para 2)

"The issue in respect to the appellant was whether the Crown had proved beyond a reasonable doubt that he was jointly in possession with the other two of the large bag of cocaine. The Crown expert gave evidence that it was possible that the appellant bought the small baggie from someone in the car and got caught by the police before he got out of the car." (Para 3)

Application of the Test in Villoraman

"In our view, not only was that possible, but it was likely, given that the appellant's brother was present at the scene in his own car. It was certainly a reasonable possibility." (Para 4)

"In our view, the trial judge erred in law by failing to apply the Supreme Court of Canada's decision in R. v. Villaroman, 2016 SCC 33 (S.C.C.), at para. 37, where the court stated:

When assessing circumstantial evidence the trier of fact should consider "other plausible theories and other reasonable possibilities" which are inconsistent with guilt. (Para 5)

"The trial judge failed to consider whether the Crown had negatived the reasonable possibility that the appellant was merely a purchaser of cocaine and not one of the drug traffickers." (Para 6)

Appeal allowed - acquittal entered. (Para 8)

R v James (ONCA)

[Apr 10/19] – S.8 Charter - Warrants & Propensity Reasoning – 2019 ONCA 288 [Reasons by G. Pardu J.A., with and A. Harvison Young J.A. Concurring, I.V.B. Nordheimer J.A. in Dissent]

AUTHOR’S NOTE: Propensity reasoning is generally prohibited as a means of proof in a criminal trial.  However, propensity reasoning is permissible in application for warrants or Part VI authorizations for wiretaps.  This case stands for the proposition that even in such an application, propensity reasoning has its limits and it remains a thin basis for authorization.  Where factors supporting propensity are so diluted as to amount to factors supporting a warrant on the basis of someone's reputation, they fail to meet the threshold for warrant issuance.

Pertinent Facts

"The trial judge found that the Information to Obtain ("ITO") did not set out reasonable grounds to believe that evidence would be found in the respondent's vehicle some 23 days after the day on which the target of the investigation, MD, said he was buying cocaine from the respondent." The Crown appealed. (Para 1)

"On February 2, 2016, MD told the agent in the early morning hours that he had to go see "Primo" "tomorrow or the following morning at the latest to pick up more cocaine," that he pays "Primo" $15,000 for the nine ounces and that he wanted to make a profit of $1,000.00. At 6:20 p.m. MD told the agent that his supplier was delayed because of health problems connected to having been shot in the past by police. It so happened that the respondent had been shot by police. At 10:49 p.m., MD told the police agent the supplier would be there the next day, before noon. The next day, police observed the respondent carrying a bag, driving a Lexus and taking the westbound exit ramp to the 401 highway." (Para 5)

"On February 3, 2016 the agent met with MD and another drug trafficker for lunch. MD said "Primo" was halfway between Toronto and Windsor. The undercover agent thought "Primo" may have had a place in London. MD opened the trunk of his car and showed the agent $50,000. The police agent gave him $16,500 and told him to add it to the buy money. MD said he was buying a "key" from "Primo". MD said he was texting with "Primo" and complained about "Primo's" behaviour. MD left with another trafficker, saying he was going to meet with "Primo" and later delivered cocaine to the police agent, continuing to complain, likely about "Primo"." (Para 6)

"The ITO said the respondent had been arrested on April 2, 2012 for drug offences and that drugs and related trafficking paraphernalia were found at the time of arrest. Notably, however, the ITO did not reveal that those charges were stayed by the Crown very shortly after they were laid." (Para 7)

"In sum, the information in the ITO showed that the respondent might have been involved in a drug transaction on December 18, 2015 and that there was a reasonable basis to believe that he had delivered drugs to MD on February 3, 2016, despite the obvious concerns that MD might not be a reliable narrator about the source of the drugs he sold." (Para 8)

Trial Judge's Ruling

"The trial judge was critical of the police failure to disclose that the charges laid against the respondent in 2012 had been stayed:

There is absolutely no excuse for this non-disclosure. Although I cannot conclude that the non-disclosure of that fact in the ITO was deliberate. It seems strange that the one fact helpful to Mr. James was not disclosed contrary to the duty of the affiant. The affiant had access to all of the police data bases and provided details of other convictions, occurrence reports, and myriad other pieces of information, all of which he relied upon to get his warrant." (Para 11)

"The trial judge concluded that he was not satisfied that the information set out in the ITO was sufficient to ground a credibly based probability that evidence would be found in the Lexus when the warrant was sought:

Nevertheless I fail to see how there could be reasonable grounds to believe on February 25th and 26th, 2016 that he was carrying contraband when he was only mentioned in the ITO in respect of dates of December 18th, 2015 and February 3rd, 2016. To hold otherwise would allow the authorities to obtain warrants based on a person's reputation, in this case as a drug dealer, as opposed to credibly based evidence of probability." (Para 12)

"The trial judge went on to apply the factors enunciated in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. He recognized that there was a reduced expectation of privacy in a vehicle but noted that the respondent was detained in public, and concluded that a "dynamic" detention meant the respondent was forced to the ground and handcuffed in the course of the arrest. He found the Charter violation was serious and that police deliberately sacrificed the respondent's rights to give priority to the weapons investigation targeting MD. He noted that reliance on stale information risked the grant of a search warrant based upon the personal reputation of an accused, rather than credibly based evidence. He noted the misleading nature of the police failure to disclose the stay of the 2012 charges against the respondent." (Para 13)

Charter Section 8 - Warrant on the Basis of Propensity or Reputation

"I extract the following principles from Watt J.A.’s decision in R. v. Sadikov, 2014 ONCA 72 (CanLII), 305 C.C.C. (3d) 421, at paras. 83-84 and 89:

1)   Warrant review begins from a premise of presumed validity. The onus of establishing invalidity falls on the person who asserts it.

2)   The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge.

3)   The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search. Was there reliable evidence that might reasonably be believed on the basis of which the warrant could have issued?

4)   An appellate court owes deference to the findings of the reviewing judge in his or her assessment of the record. Absent an error of law, a misapprehension of evidence, or a failure to consider relevant evidence, an appellate court should decline to interfere with the reviewing judge’s decision." (Para 19)

"Information in the ITO establishes that the respondent might have been involved in a drug transaction on December 18, 2015 and provides a reasonable basis to believe that he delivered drugs to MD on February 3, 2016. However, I agree with the trial judge that this information is insufficient to allow a justice to find a pattern of drug dealing or to support the conclusion that there was sufficient credible and reliable evidence to establish reasonable and probable grounds to believe that evidence, drugs or paraphernalia would be found in the car at the time of the search on February 26, 2016. The trial judge's factual conclusion that the evidence was insufficient to lead to a conclusion that there was a pattern of drug dealing on the part of the respondent is owed deference." (Para 21)

"Evidence of a propensity of a general type of offender is a thin basis to justify the issue of a search warrant. As noted in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 79, "[t]o permit reliance on broad generalizations about loosely defined classes of people is to invite dependence on stereotypes and prejudices in lieu of evidence."" (Para 22)

"Implicit in the ITO here is an assertion that because the respondent had a dated record for drug offences, might have dealt in drugs on December 18, 2015, and could well have done so on February 3, 2016, he could be presumed to have drugs or evidence of drug dealing in a vehicle more than three weeks later, on February 25 or 26, 2016." (Para 23)

"I agree with the trial judge's conclusion here that the ITO was insufficient to establish reasonable grounds to believe that drugs or evidence of drug dealing would be found in the respondent's vehicle on February 25 or 26, 2016." (Para 25)

The 24(2) Analsysis

"The trial judge properly considered each of the Grant factors. His conclusion that the seriousness of the Charter-infringing state conduct and its impact on the respondent strongly favoured exclusion was well-founded." (Para 38)

"The missing information about the stay of the 2012 charge was readily available to police and they failed to include it, thereby bolstering an essentially reputational basis for the warrant. In this case, the error was significant because of the dated record, and the limited information provided by MD. There must have been good reason for the Crown to almost immediately withdraw the 2012 charges. It would be speculative to conclude from the arrest on those charges, that the respondent was then trafficking in drugs." (Para 39)

The Crown appeal was dismissed by the majority. (Para 45)