The Defence Toolkit – April 30, 2022

This week’s top three summaries: R v Subramaniam, 2022 BCCA 141: #proof of facts, R v Santos, 2022 SKCA 50: #experience & RPG, and R v Loutitt, 2022 SKQB 74: #late disclosure stay

This week’s top case deals with a fundamental issue that arises in a many cases, but gets little discussion. For great general reference on the law of evidence including an introductory chapter that deals with this issue, 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.

MODERN CRIMINAL EVIDENCE

By Matthew Gourlay, Brock Jones, Renee Pomerance, Glen Crisp & Jill D. Makepeace

The first treatise to provide a truly practical and comprehensive guide to criminal evidence law in Canada. This casebook guides readers through evidentiary issues in all components of criminal law, providing indispensable insight from Crown, defence, and judicial perspectives.

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R v Subramaniam, 2022 BCCA 141

[April 19, 2022] Fundamental Concepts: Beyond a Reasonable Doubt & Proof of Facts in a Criminal Trial [Reasons by Abrioux J.A. with Groberman and Fitch JJ.A. concurring]

AUTHOR’S NOTE: It may be surprising to some on the outside, but fundamental concepts of law continue to confound parties and courts in our adversarial system of law. Even when a position goes outside the bounds of accepted law, every now and then the excesses of the adversarial process cause some advocates to suggest and some judges to adopt positions that run counter to established principles. Herein, the trial judge in instructing the jury advised the in a confusing and sometimes contradictory fashion the effect of which was to suggest that while the overall burden of proof was beyond a reasonable doubt, facts had to be accepted by them before they went on to consider that overall burden. The quite obvious problem of such an instruction is that it does not leave room for acquittal on the basis of doubt created by evidence. Facts do not have to be accepted to create such a state of mind. This case provides a great overview of this particular error as it applies to criminal cases. 

Introduction

[1] On October 18, 2019, following an eight-day jury trial, the appellant was convicted of unlawful importation of a controlled substance contrary to s. 6(1)of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA] and possession of a controlled substance for the purpose of trafficking contrary to s. 5(2) of the CDSA.

Background

[8] Border officers testified that Mr. Subramaniam made statements that he had crossed into the United States at around 8 a.m., while Mr. Subramaniam testified that he had left his home at 8 a.m. but did not cross the border until around 11 a.m. The fresh evidence sought to be tendered relates to this issue.

[9] Another CBSA officer, Officer Sangha, conducted a secondary search of the Montero. He noted that the carpeting in the rear cargo area appeared newer than the carpeting elsewhere in the vehicle and found a small aftermarket storage tray built into the floor. On further inspection, he also observed a larger metal box compartment, but was unsure how to access this area. He sought assistance from another CBSA officer who used an upholstery tool to lift the floor. The officers were then able to observe, but not access, several packages wrapped in brown packing tape. At this point, the Montero was moved to a secure area and the officers sought further assistance from Superintendent Hainsworth.

[10] Over the course of several hours, CBSA officers attempted to access the larger compartment. During these attempts, the officers found hidden wiring and a device called a “DroneMobile” concealed in the dashboard of the Montero, which allowed for GPS tracking of the Montero and remote unlocking of its doors. When the officers ultimately gained access to the compartment, they found 33 packages wrapped in brown tape. Mr. Subramaniam was arrested and the packages, a BlackBerry device, paystubs, and receipts, were seized. The packages were later confirmed to contain 14.79 kilograms of methamphetamine, with an approximate wholesale value of $375,000 or a street value of $1.5 million.

[11] At the trial, both the Crown and the defence agreed that the key issue was whether Mr. Subramaniam knew of the secret compartment and that it contained a controlled substance.

[12] Mr. Subramaniam testified that he had no knowledge of the DroneMobile device, the secret compartment where the drugs were located, or the methamphetamine. In closing submissions, the defence argued that the appellant had unwittingly trafficked methamphetamine across the border, as he had no knowledge of the drugs and did not notice anything unusual about the vehicle. The defence theory was that the real individuals involved in the drug scheme were the appellant’s brother, Luckshandran “Lucky” Subramaniam, and two of Lucky’s alleged associates, Zemaan Chaudry and Rohen Sharma, and that these individuals used the DroneMobile device to facilitate trafficking.

[13] In support of this theory, the defence relied on evidence of the timing of Mr. Subramaniam’s crossing into the United States and the details of
Mr. Subramaniam’s purchase of the Montero.

Appeal

[15] Counsel for Mr. Subramaniam contends that the trial judge erred: … (2) in his instructions regarding the fact-finding process, in particular by requiring the jury to convert all probable evidence into findings of fact;

D. Did the judge err in his instructions to the jury regarding its fact- finding process?

1. Introduction

[40]  In my view, the appeal turns on this ground.

[41] … the judge instructed the jury:

As I will explain to you, the standard of proof beyond a reasonable doubt applies to every essential element of each charge against Mr. Subramaniam. That standard does not apply to your consideration of whether the evidence has proven facts. If you accept evidence as being probably true, or more probably true than not true, then you must take that evidence as proof of a fact. The use of the “beyond a reasonable doubt” standard comes at a later stage of your analysis, when you consider whether all of the evidence – both the facts you have found, based on evidence accepted by you as probably true, and evidence you do not believe, or have rejected, or are uncertain about – leaves you with reasonable doubt as to Mr. Subramaniam’s guilt.

[Italic emphasis in original, underline emphasis added.]

[43] The thrust of the appellant’s submission on this ground is that the judge erred in his instructions on the fact-finding process by telling the jury that it “must” convert the evidence they found to be “probably true” into proof of that fact. Mr. Subramaniam says that this instruction usurped the fact-finding independence of the jury, and created a real risk that the jury would convict the appellant on a standard of probability. He submits that neither of these errors are capable of being mitigated by other portions of the charge.

[48] … the jury in his opening comments at the commencement of the trial:

…The evidence you hear becomes fact when you decide a particular piece of evidence is more probably true than not.

[Emphasis added.]

[52] The Crown points to other portions of the charge as a basis for its submission that the impugned statement was later clarified …

[53]  For example, later in his instructions, the judge said:

I also caution you that it is the individual elements that are subject to the test of reasonable doubt, not the individual pieces of evidence. Your task is to judge whether the evidence you accept to be more probably true than not, as a whole, forms a sufficient factual basis for you to conclude that each essential element of the offences has been proven beyond a reasonable doubt.

[Emphasis added.]

Analysis

[27] In R. v. Lifchus 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, a case that is often the starting-point for the assessment of jury charges concerning reasonable doubt and the presumption of innocence, the Court acknowledged that it was “possible” an error in the instructions as to the standard of proof might not constitute reversible error. The Court cited [R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742] for the proposition that the verdict ought not to be disturbed “if the charge, when read as a whole, makes it clear that the jury cannot have been under any misapprehension as to the correct burden and standard of proof to apply”. On the other hand, if the charge gives rise to the reasonable likelihood that the jury misapprehended the standard of proof, the “verdict generally will have to be set aside and a new trial directed.” (Lifchus at para. 41.)

[Emphasis in original.]

[57] In my view, the main question to be answered regarding this ground of appeal is whether, reading the charge as a whole, it is “clear that the jury cannot have been under any misapprehension as to the correct burden and standard of proof to apply”. Answering this question will entail considering:

•         the impugned instruction itself;

•         its location in the charge; and

•         whether other instructions effectively cured the impugned statement.

[60] It also does not accord with suggested model jury instructions….

[62] David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thompson Reuters, 2015) takes a similar approach. It states, in its suggested opening jury instructions: “To decide what the facts are in this case, you may consider only the evidence that you hear and see in the courtroom” (emphasis in original): at 43. However, it does not provide instructions on how to determine which evidence is, or becomes, fact.

[63] Although not articulated as such by the appellant, this ground of appeal raises issues that share some of the features of what has become known as a “Miller error”: see R. v. Miller (1991), 1991 CanLII 2704 (ON CA), 68 C.C.C. (3d) 517. Such an error is one which “effectively directs the jury to ignore evidence which is neither accepted nor rejected, and limits their consideration of the evidence to only the evidence which the jury accepts as true”: R. v. Skiffington, 2004 BCCA 291 at para. 16.

Now to this point, ladies and gentlemen, in describing your function I have referred to “evidence” and I have referred to “finding of fact”, and they are two different things. Let me try to explain the difference to you.

If you imagine the evidence you have heard as a big pile, what you have to do now is you have to look at the pile and go through the pile and determine what parts of that pile you accept as true and reliable, and you must then remove from the larger pile that part of it which you accept as true and reliable. That second pile becomes the facts or the source from which you make your judgment as to what the facts of the case are. So, evidence is what you have heard, the exhibits that have been received, and the admissions. Facts are the conclusions you draw from the evidence you accept. So, the first process you go through is to take this big pile of evidence, and out of it to sort the evidence that you accept, and then from that smaller pile to make your findings of fact. There are no facts in this case until you decide that something is a fact. To this point in the trial we have only evidence, not facts.

If you reject evidence, that means it is simply excluded from your consideration, and you proceed to make findings of fact based on the evidence you accept.

[65] With respect to this instruction, the Ontario Court of Appeal said, at 543:

In the present case, the impugned direction did not instruct the jury to apply proof beyond a reasonable doubt in two stages. In our opinion, however, it was a misdirection to instruct the jury to examine the evidence in a first stage, to eliminate all evidence except that which the jurors accepted as true and reliable (a lower standard than proof beyond a reasonable doubt), and then to consider only the residual in arriving at their verdict. This involved the injection of artificial rules for the jury and constituted “an intrusion into the province of the jury”. We believe it is wrong and prejudicial to confine the jury, in their initial findings of fact, to evidence accepted as true and reliable; evidence which is neither rejected nor accepted should survive to the final stage of the jury’s determination on the crucial application of reasonable doubt.

The Court held that the misdirection could not be cured by reading the charge as a whole; it allowed the appeal and ordered a new trial.

[67] In this case, the question then becomes whether, taking the cumulative view, it can be said that other instructions effectively cured the impugned statement, which it is of assistance to repeat here: “[i]f you accept evidence as being probably true, or more probably true than not true, then you must take that evidence as proof of a fact”.

[70] When I consider the charge as a whole, I conclude that the impugned instruction could be seen to invite the jury to place the evidence into two “piles”—to use the expression from Miller—the first being what they accepted as being probably true, or more probably true than not true, and the second “pile” consisting of evidence they did not accept. Then, if the evidence fell into the former “pile”, the jurors may have felt that they “must take that evidence as proof of a fact”.

[71] From this, there was a reasonable likelihood that the jury may have misapprehended the standard of proof by concluding that a proven fact, for example, the appellant’s knowledge regarding the secret compartment and what it contained, was a factual issue, to be established on a balance of probabilities as opposed to an essential element of the offence to be proven by the Crown beyond a reasonable doubt.

[72] … This would be contrary to the correct approach whereby, having considered all of the evidence—including that which they did not believe—the jury was satisfied that the Crown had proven the essential elements of the offences beyond a reasonable doubt.

[73] The context of the statement is also significant. First, I consider the judge’s instruction at the commencement of the trial that “[t]he evidence you hear becomes fact when you decide a particular piece of evidence is more probably true than not”.

[74] There is then the impugned instruction on fact-finding, contained in the introduction to the charge. Notwithstanding other standard instructions which were correct at law, for example at para. 53 above, there is also the problematic instruction in the wilful blindness portion of the charge which, for convenience, I will repeat:

… [C]onsider plausible theories or reasonable possibilities that could explain or account for the evidence before you. If you consider a theory that Mr. Subramaniam might have been wilfully blind, and find that on all the evidence to be a reasonable theory, and not mere speculation, such theory would be consistent with a finding of guilt, because knowledge includes wilful blindness.

[Emphasis added.]

[75] While, as noted earlier, I would not allow the appeal on the ground of the wilful blindness portion of the charge alone, this instruction was indicative of what was, as a whole, a confusing charge.

[76] It is true, as the Crown submits, that the final substantive instructions to the jury before they retired to deliberate included the following:

If there is any other reasonable inference inconsistent with Mr. Subramaniam’s guilt then you must acquit him, because in that case the Crown will have failed to prove guilt beyond a reasonable doubt. That will be so even if you were to view the alternative inference as unlikely or improbable, because the standard of proof that must be met by the Crown, as I have explained, is much higher than just probability.

[77] However, this statement accentuates the potential dilemma the jury was in. Essentially, the jury could not follow both this approach and that contained elsewhere in the charge, in particular the impugned statement which was made at the commencement of their instructions.

[78] Accordingly, since it is not clear that “the jury cannot have been under any misapprehension as to the correct burden and standard of proof to apply”, the charge was fundamentally defective in this regard.

[81] The curative proviso can only be applied where there is no reasonable possibility that the verdict would have been different had the error not been made: Khan at para. 28.

[82] For the reasons I have identified, the charge as a whole was confusing and it cannot be concluded that the jury was not left with the possibility of convicting the appellant based on a finding of probable guilt.

[88] I would allow the appeal, set aside the convictions and order a new trial on both counts of the indictment.

R v Santos, 2022 SKCA 50

[April 19, 2022] S.8: Reasonable Grounds for Arrest (and Search) and Deference to Police Experience [Reasons by Kalmakoff J.A. with Caldwell and Barrington-Foote JJ.A. concurring]

AUTHOR’S NOTE: Reasonable grounds to believe is the standard set by parliament to separate those who’s liberty can be interfered with through arrest and search incident to arrest and those who the police must leave alone. Reasonable grounds to believe is meant to a be a robust bulwark against unjustified state interference in our ability to move about in our daily lives. However, that standard is only as strong as judges make it. Continued dithering over the precise meaning of the words continues and is reinforced by parties continually pushing their point of view. Herein, a trial judge was convinced that the experience of the police officer along with some other information meant he could arrest someone for possession of marijuana in a certain amount for the purpose of trafficking even though the officer had no evidence indicating how much marijuana might be present before the arrest. The result was overturned on appeal. The case provides an excellent overview of the law on reasonable grounds, a great critique of uncritical reliance on police experience, and a useful s.24(2) analysis leading to exclusion. 

Introduction

[1] After a trial in Provincial Court, Jeffery Santos was convicted of possessing cocaine for the purpose of trafficking and sentenced to four years in the penitentiary.

[2] Mr. Santos appeals against his conviction. At trial, he argued that certain incriminating evidence, namely, a package of cocaine found hidden in the luggage compartment of his vehicle, should be excluded because it had been obtained in a manner that violated his rights under ss. 8 and 9 of the Charter. The trial judge found otherwise and admitted the evidence. Mr. Santos says that was an error.

[3] For the reasons that follow, I would allow the appeal.

II. FACTUAL BACKGROUND
A. The traffic stop, the arrest, and the search

[4] On Monday, February 3, 2020, Mr. Santos was driving westbound on the Trans-Canada Highway near Swift Current, Saskatchewan. An RCMP officer, Cst. Alexandros Giannoulis, stopped him to check his licence and registration, as permitted under The Traffic Safety Act, SS 2004, c T-18.1.

[5] Constable Giannoulis soon made several observations and gathered other information that led him to believe he had grounds to arrest Mr. Santos for the offence of possessing cannabis for the purpose of distribution. The first of those observations was that the car Mr. Santos was driving, a Honda CRV, was a rental vehicle. Mr. Santos said he was driving a rental because his own car was in the shop. When Cst. Giannoulis asked to see the rental agreement for the car, he observed that Mr. Santos appeared to be flustered and had difficulty locating it. Mr. Santos said he was travelling from Calgary to Winnipeg. The rental agreement stated that Mr. Santos had rented the vehicle in Calgary on February 2, and that he was required to return it there on February 6. Constable Giannoulis could also see that, inside the vehicle, Mr. Santos had a Red Bull energy drink in the cup holder, and there was fast food trash on the floor behind the passenger seat. The cargo compartment of the vehicle was also covered with a factory-installed cover. Constable Giannoulis also recognised the odour of fresh (i.e., raw, unsmoked) cannabis coming from the vehicle.

[6] While he had Mr. Santos stopped at the roadside, Cst. Giannoulis consulted an RCMP database and learned that an Alberta police unit known as ALERT (Alberta Law Enforcement Response Team), which investigates serious crimes such as drug trafficking and money laundering, had an entry in relation to Mr. Santos. That entry indicated that, since 2013, Mr. Santos had been dealt with by police on 15 occasions, one of which was a complaint—initiated by Mr. Santos himself in 2014—that his car had been stolen. The ALERT entry also stated that Mr. Santos had video surveillance set up outside his residence in Lethbridge, that he had reportedly purchased a $60,000 car the previous summer by paying cash for it and that, on several occasions, his neighbours had complained of people mistakenly coming to their houses asking for drugs. The entry ended with the following words: “This information lends credence to the possibility that Santos is involved in drug trafficking”.

[7] Constable Giannoulis testified that, after he had reviewed the ALERT entry, had taken into account all of the other observations he had made, and had considered them in light of his training and experience, he formed the belief that Mr. Santos was in possession of cannabis for the purpose of distribution, contrary to s. 9(2) of the Cannabis Act, SC 2018, c 16. When asked by the trial prosecutor to clarify this statement, Cst. Giannoulis said:

The reason I believed that Mr. Santos was in possession of cannabis, obviously the odour of cannabis was important to me. Again, by itself, it might not mean much, but I already talked about Mr. Santos, like, driving — driving a rental vehicle, I know that rental vehicles are often used by people to provide a certain degree of anonymity to them because when you run the plate you don’t know who the driver is; the fact that Mr. Santos was coming from Calgary, I know Calgary to be a source point for drugs, which means that drugs would originate from there; again, on this particular highway I know that as a fact because I’ve seen it lots on previous seizures; he’s going to Winnipeg, I know that Winnipeg is a source destination for drugs, and what that means is that the drugs come from a source point, which is Calgary, and then someone is either expecting it or ordered it from Winnipeg and it’s getting taken there; obviously Mr. Santos’ nervousness that I talked about with the Court; him being flustered and panicking when I’m just asking him for a simple rental agreement; him staring at me through the mirrors …

In my 2,500 stops I’ve never really had anyone volunteer to me why they were in a particular car: (a) because I didn’t ask; and (b) because I don’t care. It doesn’t affect anything in relation to the traffic stop, why he needs to tell me that he’s — that he’s in that vehicle. I thought he was trying to justify being in a rental car; and then the intelligence checks that I just mentioned to the Court.

So I formed the belief that Mr. Santos was in possession of cannabis for the purpose of distribution …

[8] After Mr. Santos was arrested, he was handcuffed and placed in the back of the police car. Searches were conducted incidental to the arrest. Mr. Santos had $1,881 in cash in his pocket. A garbage bag with a 1.065-kilogram brick of cocaine packaged inside it was found in the covered luggage area of the car, and a baggie containing 7 grams of marijuana was located in the centre console between the driver’s and passenger’s seats.

Issues

[14] Mr. Santos contends the trial judge erred in determining that his rights under ss. 8 and 9 the Charter had not been violated.

17] The central issue at trial was the lawfulness of Mr. Santos’s arrest as, in the circumstances, the lawfulness of the arrest determined the reasonableness of the subsequent search. All of this turned on whether Cst. Giannoulis had grounds to make a warrantless arrest. That gives rise to two issues for determination on this appeal:

1. (a)  Did the trial judge err by finding that Mr. Santos was lawfully arrested; and
2. (b)  If so, should the remedy of exclusion of evidence be granted?

[18] Mr. Santos says the evidence before trial judge fell short of establishing that Cst. Giannoulis had an objectively reasonable basis for believing that he was committing the offence of possession of cannabis for the purpose of distribution. In part, he asserts that the trial judge placed too much stock in Cst. Giannoulis’s subjective interpretation of the circumstances in the reasonable grounds analysis. He contends that the trial judge effectively turned Cst. Giannoulis’s specialized training and experience as a police officer into a “trump card”, by relying solely on the officer’s subjective interpretation of events to draw inferences of criminality that a reasonable observer viewing those same events would not draw.

IV. ANALYSIS

A. Did the trial judge err by finding that Mr. Santos was lawfully arrested?

1. The legislative framework

[20] The starting point for this portion of the analysis is understanding the statutory authority that Cst. Giannoulis relied on to conduct a warrantless arrest. At trial, Cst. Giannoulis testified that he arrested Mr. Santos for possession of cannabis for the purpose of distribution, contrary to s. 9(2) of the Cannabis Act, …

[23] Possessing cannabis for the purpose of distribution is an indictable offence as defined in s. 9 of the Cannabis Act. The portion of s. 9 relevant to this case reads as follows:

9 (1) Unless authorized under this Act, it is prohibited

(a) for an individual who is 18 years of age or older

(i) to distribute cannabis of one or more classes of cannabis the total amount of which is equivalent, as determined in accordance with Schedule 3, to more than 30 g of dried cannabis,

…

(iii) to distribute cannabis to an organization, or

(iv) to distribute cannabis that they know is illicit cannabis;

…

(2) Unless authorized under this Act, it is prohibited to possess cannabis for the purpose of distributing it contrary to subsection (1). …

[24] The term “distribute” is defined in s. 2 of the Cannabis Act, as including “administering, giving, transferring, transporting, sending, delivering, providing or otherwise making available in any manner, whether directly or indirectly, and offering to distribute”.

[25] All of this means that Cst. Giannoulis could only lawfully arrest Mr. Santos without a warrant if he had reasonable grounds to believe that Mr. Santos was transporting cannabis that: (a) weighed more than 30 grams; (b) was destined to be delivered to an organization; or (c) he knew was illicit cannabis. Cst. Giannoulis testified that the arrest in this case was premised on quantity; he believed that Mr. Santos had more than 30 grams of cannabis with him in the car.

2. Reasonable grounds to believe – the governing principles

[27] The foregoing description of the “reasonable grounds to believe” standard is well-known and appears relatively straightforward. However, the sheer volume of jurisprudence and academic writing that has been devoted to the subject demonstrates that the governing test, while easy to recite, is sometimes difficult to apply. This is not surprising, given the wide variety of circumstances in which police may purport to exercise statutory or common-law powers on the basis of reasonable grounds to believe.

[29] I agree with this sentiment. What follows, therefore, is not an attempt to re-articulate the reasonable grounds standard. Nor is it intended to be a comprehensive canvas of the entire body of jurisprudence relevant to the application of that standard. Cases such as this one are invariably fact-driven and, with that in mind, the principles I refer to here are those that bear on the factual circumstances of this case:

(a) The current language in the Criminal Code, “reasonable grounds”, has the same meaning as the former “reasonable and probable grounds”. It signifies the point at which credibly based probability replaces suspicion (R v Debot, 1989 CanLII 13 (SCC), [1989] 2 SCR 1140 at 1166; Hunter v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145 at 167; R v Loewen, 2011 SCC 21 at para 5, [2011] 2 SCR 167; R v Lichtenwald, 2020 SKCA 70 at para 33, 388 CCC (3d) 377 [Lichtenwald]).

(b) Reasonable grounds to believe is a higher standard than reasonable suspicion. Whereas reasonable suspicion engages the possibility of crime, reasonable grounds to believe engages the probability of crime (R v Chehil, 2013 SCC 49 at para 27, [2013] 3 SCR 220 [Chehil]; R v MacKenzie, 2013 SCC 50 at paras 84-85, [2013] 3 SCR 250 [MacKenzie]). It is important that the two standards not be conflated (Chehil at paras 26–28).

(c) The reasonable grounds to believe standard does not necessitate that the circumstances known to the arresting officer be sufficient to prove the commission of an indictable offence beyond a reasonable doubt, or on a balance of probabilities, or to establish a prima facie case for conviction (Mugesera v Canada (Minister of Citizenship & Immigration), 2005 SCC 40, [2005] 2 SCR 100; R v Morelli, 2010 SCC 8 at para 91, [2010] 1 SCR 253; Storrey; Shinkewski at para 13; Lichtenwald at para 34; R v Protz, 2020 SKCA 115 at para 41 [Protz]; R v Todd, 2019 SKCA 36 at para 29, [2019] 9 WWR 207 [Todd]; R v Glendinning, 2019 BCCA 365 at para 7). It does, however, require a strong connection between the accused and the offence under investigation (Chapmanat para 66; R v Molnar, 2018 MBCA 61 at paras 28–29, 363 CCC (3d) 350).

(d) While an arrest based on a mistake of law is unlawful, the concept of “reasonable grounds to believe” relates to the facts (Tim at para 36). This means an arresting officer’s belief as to the existence of the facts necessary to support an arrest does not need to be correct in order to be reasonable. A factual belief can be reasonable even if it is mistaken or later proven to be wrong (Chapman at para 59). It is not necessary that the inference drawn by the officer be the only possible inference that can be drawn from the available information. Nor does it have to be the most compelling inference. Reasonable belief is not automatically negated simply because other plausible innocent explanations may arise from the same observations and information (Protz at para 39; R v Gunn, 2012 SKCA 80 at paras 22–23, 399 Sask R 170 [Gunn]; Ha at para 34). The question for a reviewing court is whether the belief held by the by the arresting officer was a reasonable one to have held at the time of the arrest, based on the circumstances known to the officer at that time (Todd at para 29). For this standard to be met, the court must be able to conclude that the factors articulated by the officer who made the arrest were reliable and objectively capable of supporting their belief that the offence in question had been committed (Gunn at para 7).

(e) In determining whether the reasonable grounds to believe standard has been met, the reviewing court must examine the information that was available to the arresting officer cumulatively, and not in a piecemeal fashion (Shinkewski at para 13).

(f) Deciding whether reasonable grounds to believe exist is a qualitative, not quantitative, exercise. There is no checklist with a certain number of indicia that must be met before reasonable grounds to believe will be established, and no single identifiable factor that marks the point at which reasonable suspicion crosses the threshold to become reasonable grounds to believe (Chapman at paras 66–67). It is the totality of the circumstances that is important (Lichtenwald at para 35).

(g) The arresting officer must consider all of the incriminating and exonerating information that the totality of the circumstances permits. They can only disregard information which they have reason to believe may be unreliable (Storrey; Shinkewski at para 13). Judicial scrutiny of the “totality of the circumstances” must bear in mind that police officers are often required to make split-second decisions in fluid and potentially dangerous situations, based on available information which may be imperfect, evolving, or inaccurate (Aucoin at para 40; R v Coutu, 2020 MBCA 106 at para 18).

(h) Context is also crucial when considering the totality of the circumstances confronting the arresting officer. In that respect, the reputation of a suspect may be germane in assessing whether there were reasonable grounds, if that reputation is related to the reason for the arrest, and the police knowledge is based on reliable evidence (Lichtenwald at para 42).

(i) The approach to the question of reasonable grounds must be flexible and grounded in common sense and practical everyday experience. The “reasonable person” in the requisite analysis is one armed with the knowledge, training, and experience of the investigating officer (MacKenzie at para 73; R v Yates,2014 SKCA 52 at para 77, 438 Sask R 78; R v Lotfy, 2017 BCCA 418 at para 35, 357 CCC (3d) 516; R v Brayton, 2021 ABCA 316 at para 27; R v Law,2020 ABCA 267 at para 26).

(j) While the training and experience of the arresting officer are undoubtedly relevant considerations, they do not form a trump card. Nor does the fact that the officer has certain training and experience remove the need for an objective and critical analysis by a reviewing court. (Chehil at paras 45–47; R v Canary,2018 ONCA 304 at para 22, 361 CCC (3d) 63). The question is not simply whether this officer, on the basis of their training and experience, believed what they believed, but rather whether it would be reasonable for an officer with the same training and experience to have formed that belief (Chapman at para 69).

3. The principles applied

[30] The trial judge accepted the testimony given by Cst. Giannoulis and, taking into account the observations he had made during the encounter with Mr. Santos, along with his experience and training, he concluded that the officer’s belief that Mr. Santos was probably transporting enough cannabis to meet the criteria for illegal distribution in s. 9(1)(a)(i) of the Cannabis Actwas objectively reasonable.

[31] In my respectful view, the trial judge erred in principle in reaching this conclusion. Although he began his analysis by referring to the relevant legal principles, he fell into error by failing to conduct any critical examination of Cst. Giannoulis’s subjective assessment of the evidence. In effect, the trial judge reasoned as though Cst. Giannoulis’s training and experience alone were enough to remove the need for a thorough assessment of the reasonableness of his subjective belief. If the trial judge had conducted that critical analysis, in my view, he would have concluded that, while Cst. Giannoulis had reasonable grounds to suspect that that Mr. Santos was committing the offence for which he was ultimately arrested, the evidence fell short of providing an objective basis to believe he was committing that offence. To put that another way, the factors on which Cst. Giannoulis relied to form his belief fell short of providing an objectively reasonable basis to conclude that there was a probability,as opposed to merely a possibility,that Mr. Santos possessed cannabis for the purpose of distribution.

[32] As discussed above, determining the point at which reasonable suspicion crosses the threshold to reasonable grounds to believe is a qualitative, not quantitative, exercise. There is no bright line between the two and no definitive checklist of factors that can be consulted to distinguish one from the other. That said, reasonable grounds to believe is clearly a higher standard than reasonable suspicion and, where it is met, it entitles the police to exercise more intrusive powers than may be exercised on the basis of a reasonable suspicion. Accordingly, while the gap between the two standards may not be wide, it must remain one that is distinguishable.

[33] In this case, almost all of the factors Cst. Giannoulis cited as supporting his belief that Mr. Santos possessed cannabis for the purpose of distribution were, on their own, completely innocuous. These innocuous observations included the fact that Mr. Santos was driving a rented vehicle, the fact that he was travelling from Calgary to Winnipeg along the Trans-Canada highway, and the fact that he had an energy drink in the cup holder, fast-food wrappers on the floor, and a factory-installed luggage cover in place. Cst. Giannoulis said these were things that, in his experience, were commonly found in conjunction with the transportation of illegal drugs. But they are also, in my view, so commonplace with travelers who are doing nothing illegal that they contribute little to the base of a reasonable belief in criminal activity.

[34] Several of the other factors that Cst. Giannoulis identified as being significant were also completely innocuous when examined individually, including the fact that Mr. Santos volunteered the reason he was driving a rented vehicle without being asked. While Cst. Giannoulis seemed to place a fair bit of emphasis on this, it is hard to see Mr. Santos’s explanation as being anything other than entirely innocuous from the standpoint of a reasonable observer. After all, Mr. Santos was driving a vehicle that was not his own and he had just been stopped by a police officer who asked to see the vehicle’s registration. It is not difficult to envision how even a completely law‑abiding person in that situation may feel a need to explain why their own name does not appear on the registration certificate. Nothing about Mr. Santos’s response, in my view, could reasonably be taken as suspicious.

[36] My point in all of this is that almost all of the factors Cst. Giannoulis put forward as supporting his belief were, individually, exclusively innocuous. It is correct in law to say that the factors upon which the officer relies must be examined in their totality, and accurate to say that the mere existence of a potentially innocent explanation for a constellation of factors does not negate the existence of reasonable grounds. Notwithstanding that, courts must be careful not to allow the fact that an officer has certain experience and training to function as a thread that automatically sews a patchwork of exclusively innocuous circumstances into a quilt of reasonable grounds to believe a person has committed an offence. Here, the words of Professors Steve Coughlan and Glen Luther, in Detention and Arrest,2d ed (Toronto: Irwin Law, 2017) at 96 and 99, and cited in Chapman at para 69, are pertinent:

…[if] carried too far, incorporating the experience of the particular officer into the objective test amounts to effectively eliminating the objective test, leaving only the subjective test in place. If all an officer’s claimed experience is to be relevant, then the objective test becomes very close to “would a person who believes what this officer believes believe what this officer believes”, which will always trivially be proven.

…

Further, there is a quite significant reason to be careful about claims of experience, and it is one that has not received attention in courts to date: a person can honestly and sincerely make the claim “this is my experience,” and yet be mistaken. Because of confirmation bias, people tend to notice instances that support their preconceived ideas and ignore those that do not; to see equivocal evidence as confirming the hypothesis to which they already adhere; and to test a hypothesis only by seeking further confirming instances, not by looking for disconfirming instances. As a result, if a person expects to see a pattern, they might see that pattern whether it exists or not.

(Emphasis in original, footnotes omitted)

[37] In this case, even the potentially incriminating aspects of the observations on which Cst. Giannoulis had relied added little to the exclusively innocuous factors. The odour of cannabis from Mr. Santos’s vehicle was undoubtedly an important observation, but its importance must be considered in the light of the fact that, under the Cannabis Act, he was lawfully entitled to possess cannabis as long as he did not have more than 30 grams of it, intend to distribute it to an organization, or know that it was “illicit”. In that respect, the odour that Cst. Giannoulis detected, at least on his testimony, said absolutely nothing about quantity, purpose, or knowledge. There may be circumstances where a court could find that the strength or quality of such an odour was reasonably indicative of quantity—but that was not the case here. Likewise, the fact that Mr. Santos appeared to be nervous and watched Cst. Giannoulis intently during the encounter could be taken in a number of ways but, at most, added little more than a suspicion. Even then, this was not the circumstance of MacKenzie (a case in which the question was whether the police officer’s observations supported a reasonable suspicion), where the accused’s anxiety was “some of the highest nervousness” the arresting officer had seen in thousands of traffic stops (at paras 77–79).

[38] The ALERT entry also required closer examination. Notably, it did not suggest that Mr. Santos had ever been convicted, charged, or even arrested for any drug-related offences. … although the inference was open to be drawn, it did not say that any of the prospective drug purchasers had identified Mr. Santos as the person they were hoping to meet for that purpose. … As noted in Chapman at paragraph 90, information gained from police databases is relevant and properly considered in determining whether police have reasonable grounds to suspect – or believe – that someone is involved in particular criminal activity. But that information must be examined to consider the degree to which it connects the suspect to the crime in question. Key factors here include the recency of the information, the similarity to the offence under investigation, proximity in time, specificity, and the quality of the source. In this case, none of the information in the ALERT entry was particularly specific or compelling. None of it drew anything more than a tenuous link between Mr. Santos and drug trafficking.

[39] The bottom line here is that most of the factors upon which Cst. Giannoulis relied in this case were individually completely innocuous and, even when the potentially inculpatory factors are added to the mix and weighed in the light of the officer’s experience and training, the evidence as a whole does not reveal a strong enough connection between Mr. Santos and the criminal activity alleged – namely, possession of cannabis for the purpose of distribution. … [PJM Emphasis]

[40] All of that said, when the evidence in this case is examined in its totality, I find that the information and observations upon which Cst. Giannoulis relied, even when considered cumulatively and in the light of his training and experience, suggested only a possibility, and not a probability, that Mr. Santos possessed cannabis for the purpose of distribution. While this may have been enough to ground a reasonable suspicion that Mr. Santos possessed cannabis for the purpose of distribution, the evidence and information as a whole lacked the objective quality necessary to meet the more onerous standard of reasonable grounds to believe he was probably committing that offence.

B. Should the remedy of exclusion of evidence be granted?

1. Is it appropriate for this Court to conduct the s. 24(2) analysis?

[44] Based on the trial record, I am satisfied that this Court is positioned to properly conduct the analysis under s. 24(2). At trial, the parties agreed that all of the evidence led during the voir dire would be applied to the trial once the judge made his ruling on the Charter application, regardless of what that ruling was. The Crown led its full case during the voir dire. … Crown and defence counsel, in their closing submissions, both fully addressed the question of whether the evidence should be excluded under s. 24(2) if the trial judge found Mr. Santos’s Charter rights had been violated. While the trial judge ultimately found that no Charter violations had been established and, as such, did not conduct a s. 24(2) analysis, he made several findings of fact relevant to that question,… To the extent that there was any dispute about the evidence bearing on the live issues at trial, including whether evidence should be excluded under s. 24(2), it is apparent that the trial judge accepted the testimony given by Cst. Giannoulis.

[45] Considering all of that, I am satisfied that the record before this Court is sufficient to determine whether the admission of the evidence would bring the administration of justice into disrepute. There is no utility in referring the matter back to the trial court for redetermination. It is open for this Court to conduct its own s. 24(2) analysis (see R v Ali, 2022 SCC 1 at para 11).

2. Should the evidence be excluded?

a. The seriousness of the Charter violations

[49] The first factor to consider in the Grant inquiry is the seriousness of the Charter-infringing state conduct. Police officers are expected to abide by Charter standards and where they do not, the task for the court is to situate the offending conduct on a scale of culpability: R v Paterson, 2017 SCC 15 at para 43, [2017] 1 SCR 202 [Paterson]; Le at para 143.

[50] Where the police conduct in question is serious, involving a wilful or reckless violation of Charter rights, that will signal a greater need for the court to distance itself from such conduct by excluding evidence gained in connection with the breach (R v Moyles, 2019 SKCA 72 at para 83, [2019] 12 WWR 416 [Moyles]). Minor, technical and inadvertent breaches, on the other hand, will be seen as less serious because they have much less impact on the rule of law and the administration of justice than wilful or reckless violations (Tim at para 82; Chapman at para 101).

[51] While good faith police action, taken without deliberate disregard for Charter rights, may attenuate the seriousness of the breach, a mere absence of bad faith does not equate to good faith. In order for state misconduct to be characterized as a good faith error indicative of a less serious infringement of Charter rights, the state must show that the police acted in a manner consistent with what they subjectively, reasonably and non-negligently believed the law to be (Tim at para 85; Le at para 147; R v Pawar, 2020 BCCA 251 at para 55, 393 CCC (3d) 408). Police conduct that demonstrates negligence towards compliance with Charter standards does not amount to good faith. The reputation of the administration of justice requires that courts dissociate themselves from evidence obtained as a result of police negligence in meeting Charter standards (Le at para 143). While ignorance of the law is not good faith, good faith may sometimes be found when the police make a reasonable, non-negligent error in applying an established but indeterminate legal standard (Grant at para 133).

[53] In the present context, it is also important to bear in mind that, while “reasonable grounds to believe” is a well-defined legal standard, it is also “a standard the edges of which can be difficult to recognize in real time, without the luxury of judicial reflection”. Where police conduct is being measured against such a legal standard and the officers involved make honest and reasonable efforts to adhere to the standard but fall just short of meeting the necessary mark, that may tend to situate theCharter-infringing conduct at the lower end of the fault spectrum (Chapman at para 105; R v Maxim, 2018 SKCA 57 at para 17, 416 CRR (2d) 165).

[55] Although the edges of the reasonable grounds standard can sometimes be difficult to define in real time and in uncertain circumstances, it is still a standard that is well-known to police officers. The information upon which they build their grounds for arrest must be information that points with some confidence in the direction of a crime having probably been committed, not information that is equivocal about the most crucial detail. Although there is nothing in the evidence to suggest that this was a wilful or flagrant breach on Cst. Giannoulis’s part, it also cannot, in my view, be called a reasonable or non-negligent breach either.

[56] Taking all of that into consideration, analysis of this factor pulls towards excluding the evidence.

b. The impact of the breaches on Mr. Santos’s Charter-protected interests

[59] In that regard, infringements of s. 8 in circumstances that denote a high expectation of privacy tend to strongly favour exclusion of evidence. Infringements of lesser interests, less so (Grant at para 78; Paterson at para 49; Chapman at para 119).

[60] Even though there is authority for the proposition that a person has a reduced expectation of privacy in a vehicle (see, for example, R v Belnavis,1997 CanLII 320 (SCC), [1997] 3 SCR 341 at para 38; and MacKenzieat para 31), I am still of the view that the breaches in this case had a serious impact on Mr. Santos’s s. 8 rights. Mr. Santos was arrested and taken into custody on the basis of information that fell short of providing lawful grounds for his arrest. His vehicle was then searched based on that unlawful arrest and highly incriminating evidence was found. Even though there is no suggestion that the police otherwise conducted the search unreasonably or that Mr. Santos was mistreated, the effect of the breaches had undeniably serious consequences for him.

[61] In this case, both the seriousness of the breaches and the seriousness of their impact on Mr. Santos’s Charter-protected interests must also be considered in light of the fact that, at the time the relevant events occurred, possession of cannabis had been legalized. This means that Mr. Santos was not necessarily doing anything illegal by simply having cannabis in his vehicle. The provisions of the Cannabis Actand The Cannabis Control (Saskatchewan) Actpermit a person in Saskatchewan to possess or transport cannabis in a vehicle without committing an offence where the amount possessed is less than 30 grams and it is being taken from one place where it may be lawfully obtained, had, kept, or consumed to another place where it may be lawfully had, kept or consumed. The powers of arrest and search under either statute arise only where the quantity of cannabis in question or the purpose for possessing or transporting it fall outside of what is permitted.

[113]   The concept of discoverability is useful, but not determinative, in the s. 24(2) analysis. A finding of discoverability does not necessarily lead to admission of the evidence. Courts also should not engage in speculation. Where it cannot be determined with confidence whether the evidence would have been discovered in the absence of the Charter breach, discoverability will have no impact on the s. 24(2) inquiry: Côté at para 70.

[114] Discoverability can also be somewhat of a double-edged sword. Where police have means available to conduct a lawful search and neglect to use those means, or choose not to them, that accentuates the seriousness of the breach in the first line of the Grant inquiry: Côté at para 71; Cole at para 89 [R v Cole, 2012 SCC 52, [2012] SCR 34]. In the second stage of the Grant inquiry, the fact that the evidence would have been discovered through lawful means, had the police chosen to avail themselves of those means, may attenuate the seriousness of the impact of the breach on the Charter-protected rights of the accused: Côté at para 72; Cole at para 93.

4-6 Any police officer may arrest, without warrant, any person whom he or she finds committing an offence against this Act or the regulations.

[66] … In those circumstances, one investigative step that Cst. Giannoulis could have taken would have been to detain Mr. Santos for investigation of the offence under s. 2–10 and ask further questions regarding the quantity, source and purpose of the cannabis in Mr. Santos’s car. Of course, Mr. Santos would have been under no obligation to answer those questions but, nevertheless, pursuing that investigative avenue may have provided Cst. Giannoulis with useful evidence that could have informed his belief on the question of whether he had the grounds to arrest Mr. Santos and, if so, for what offence. …

[68] At most, in this case, the fact that Cst. Giannoulis did not turn his mind to the powers he could exercise under The Cannabis Control (Saskatchewan) Act leaves the Court with no evidentiary basis to conclude that he had, but neglected to use, the means available under that Act to conduct a lawful search. In that respect, the concept of discoverability does not elevate the seriousness of Cst. Giannoulis’s Charter-offending conduct. On the other side of the discoverability coin, however, there is also no evidence to support a conclusion that the incriminating evidence against Mr. Santos would have been discovered through the lawful means permitted under the provincial legislation either. ….

[69] Taking all of that into account, I am of the view that analysis of the second factor also favours exclusion of the evidence.

[77] This case is a close call but, in my view, the balance ultimately tips here in favour of excluding the evidence.

 

R v Loutitt, 2022 SKQB 74

[March 21, 2022] S.7 Disclosure – Stay for Late Disclosure [Justice Chow]

AUTHOR’S NOTE: The usual remedy late disclosure is an adjournment. However, this is the second case in recent weeks to come out of SKQB upholding a stay for late disclosure by the Crown. This is a remedy defence counsel should start considering seriously in analogous circumstances. This case provides another roadmap to get there.

Introduction

[The applicant was charged with Impaired/80 or Over]

[4] On April 23, 2020, the Crown provided defence counsel with some disclosure, via email; however, no audio or video recordings were provided at that time. The following day, defence counsel corresponded with the Crown once again, and requested that it follow up with investigators to determine whether any of the outstanding disclosure enumerated in his initial request existed.

[7] A trial was scheduled for August 20, 2020.

[8] On July 27, 2020, defence counsel served and filed a notice, [asking for various remedies under the Charter] …

[10]  On August 17, 2020, the Crown became aware of the existence of some in-car video which had not previously been disclosed or produced to the defence. The following day, Crown counsel requested the same from investigators, alerted Ms. Loutitt’s counsel as to its existence, and advised that the video would be made available for review by the defence on the morning of the trial.

[11] In response, defence counsel served and filed a second notice pursuant to The Constitutional Questions Act, 2012 the following day, asserting the Crown had failed to make timely disclosure and requesting a judicial stay of proceedings.

[12] When the matter came on for trial on August 20, 2020, the Crown, for the first time, provided defence counsel with access to the in-car video, as well as additional, previously unidentified disclosure, including a video and a photograph of Ms. Loutitt at the detachment after her arrest, a prisoner’s report prepared by investigators, and an audio recording of the initial civilian complaint that precipitated the investigation.

[13] The learned trial judge below heard argument on the defence application for a judicial stay of proceedings and reserved on the matter.

[14] On August 26, 2020, the learned trial judge ruled that the Crown had failed in its obligation to provide timely disclosure, that the said failure resulted in a violation of Ms. Loutitt’s Charter rights, and that the appropriate remedy was a judicially imposed stay of proceedings.

Analysis

[The Court referenced the law directing a significant deference to trial judges in cases of a declaration of a stay]

The Law

[32] A useful summary of the general legal principles governing the Crown’s duty to disclose may be found in the Saskatchewan Court of Appeal’s decision in R v Anderson, 2013 SKCA 92, 423 Sask R 61 wherein, commencing at para. 57, Ottenbreit J.A., for a unanimous court writes:

[57]   The Crown’s obligation to provide disclosure as set forth in R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, was recently reiterated and summarized by Charron J., at para 18 of R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66:

18 While the Stinchcombe automatic disclosure obligation is not absolute, it admits of few exceptions. Unless the information is clearly irrelevant, privileged, or its disclosure is otherwise governed by law, the Crown must disclose to the accused all material in its possession. The Crown retains discretion as to the manner and timing of disclosure where the circumstances are such that disclosure in the usual course may result in harm to anyone or prejudice to the public interest. The Crown’s exercise of discretion in fulfilling its obligation to disclose is reviewable by a court.

[58]   The obligation to disclose is not absolute.  For example, in R v Egger, 1993 CanLII 98 (SCC), [1993] 2 SCR 451, Sopinka J. stated at p 466:

…  The Crown’s disclosure obligation is subject to a discretion, the burden of justifying the exercise of which lies on the Crown, to withhold information which is clearly irrelevant or the nondisclosure of which is required by the rules of privilege, or to delay the disclosure of information out of the necessity to protect witnesses or complete an investigation: Stinchcombe, supra, at pp. 335-36, 339-40. As was said in Stinchcombe, supra, at p. 340, “[i]nasmuch as disclosure of all relevant information is the general rule, the Crown must bring itself within an exception to that rule”.

[59]   The meaning of “relevance” has been recently addressed by the Court in R v West, 2010 NSCA 16, 288 NSR (2d) 293:

160         What is relevant in any given case is determined by a wide variety of factors, principally by the facts in issue. The facts in issue are set by the charges before the court and the defences being raised by the accused (see R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82 at para. 38). In R. v. Watson, 1996 CanLII 4008 (ON CA), [1996] O.J. No. 2695 (Ont. C.A.) para. 30-35, Doherty J.A. wrote of the requisite approach to assessing relevance as follows:

30 … Relevance must be assessed in the context of the entire case and the respective positions taken by the Crown and the defence: R. v. Sims (1994), 1994 CanLII 1298 (BC CA), 87 C.C.C. (3d) 402 (B.C.C.A.) at pp. 420-427, 28 C.R. (4th) 231 (B.C.C.A.). There is no rule limiting prior misconduct by the deceased to cases in which self-defence is raised.

31 In R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670 at p. 714, 41 C.C.C. (3d) 385 at p. 416, La Forest J. (in dissent) described the significance of relevance to our law of evidence:

All relevant evidence is admissible, subject to a discretion to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy.

32      In explaining what he meant by relevance, La Forest J. referred to Morris v. R., 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, 7 C.C.C. (3d) 97, and then said at p. 715 S.C.R., pp. 417-418 C.C.C.:

It should be noted that this passage [from R. v. Morris followed a general discussion of the concept of relevance in which the court affirmed that no minimum probative value is required for evidence to be deemed relevant. The court made it clear that relevance does not involve considerations of sufficiency of probative value. … A cardinal principle of our law of evidence, then, is that any matter that has any tendency, as a matter of logic and human experience, to prove a fact in issue, is admissible in evidence, subject, of course, to the overriding judicial discretion to exclude such matter for the practical and policy reasons already identified.

33 While La Forest J. dissented in the result in Corbett, his discussion of the significance and meaning of relevance is consistent with previous and subsequent majority decisions of the Supreme Court of Canada: Morris v. R., supra, perMcIntyre J., at pp. 191-92 S.C.R., pp. 98-99 C.C.C., per Lamer J. (dissenting in the result) at pp. 200-01 S.C.R., pp. 105-06 C.C.C.; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 at pp. 609-12, 66 C.C.C. (3d) 321 at pp. 389-92. Relevance as explained in these authorities requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A”. If it does then “Fact A” is relevant to “Fact B”. As long as “Fact B” is itself a material fact in issue or is relevant to a material fact in issue in the litigation then “Fact A” is relevant and prima facie admissible.

[60]   In Egger, at p 467, the Court tied relevance to usefulness to the defence:

… One measure of the relevance of information in the Crown’s hands is its usefulness to the defence: if it is of some use, it is relevant and should be disclosed—Stinchcombe, supra, at p. 345. This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.

[61]   However, an accused does not have a right to adduce irrelevant evidence (R v Darrach, 2000 SCC 46, [2000] 2 SCR 443, para 37).

[62]   The Crown has a continuing obligation to disclose.  In R v Girimonte (1997), 1997 CanLII 1866 (ON CA), 121 CCC (3d) 33 (Ont CA), the Court said this about the timing of Crown disclosure:

17 The Crown’s obligation to disclose is triggered by a request for disclosure from counsel for an accused. Initial disclosure must occur sufficiently before the accused is called upon to elect or plead so as to permit the accused to make an informed decision as to the mode of trial and the appropriate plea. In a perfect world, initial disclosure would also be complete disclosure. However, as is recognized in Stinchcombe, supra, at p. 14, the Crown will often be unable to make complete disclosure at the initial stage of the disclosure process. There will also be rare cases in which the Crown can properly delay disclosure until an investigation is completed. If full disclosure cannot be made when initial disclosure is provided, the Crown’s obligation to disclose is an ongoing one and requires that disclosure be made as it becomes available and be completed as soon as is reasonably possible. In any event, an accused will not be compelled to elect or plead if the accused has not received sufficient disclosure to allow the accused to make an informed decision.

[63]   Whether the Crown has discharged its duty to disclose may be reviewed by the Court.  This process was explained by Sopinka J. at pp 340 of Stinchcombe:

The trial judge on a review should be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, unless the non-disclosure is justified by the law of privilege. The trial judge might also, in certain circumstances, conclude that the recognition of an existing privilege does not constitute a reasonable limit on the constitutional right to make full answer and defence and thus require disclosure in spite of the law of privilege. The trial judge may also review the decision of the Crown to withhold or delay production of information by reason of concern for the security or safety of witnesses or persons who have supplied information to the investigation. In such circumstances, while much leeway must be accorded to the exercise of the discretion of the counsel for the Crown with respect to the manner and timing of the disclosure, the absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege which excludes the information from disclosure.

The trial judge may also review the Crown’s exercise of discretion as to relevance and interference with the investigation to ensure that the right to make full answer and defence is not violated. …

[64]   As a practical matter, during a review of the Crown’s disclosure obligations prior to trial or during trial, a trial judge must look at a myriad of relevant factors touching on whether the Crown has fulfilled its obligation in good faith and in a timely manner. Without providing an exhaustive list, this could include looking at the essential elements of the offence, the complexity of the investigation, the volume and type of disclosure already provided, what the Crown refuses or is unable to provide, a preliminary assessment of how the further disclosure sought is relevant in the sense of assisting the accused, whether it is part of the case to meet, the interaction between the Crown and defence, the behaviour of the Crown and defence, the timing of disclosure and the nature of the defence requests for disclosure.  The interplay of these factors is case specific.

[65]   However, merely establishing a breach of the Crown’s obligation to disclose does not establish a Charter breach.  Watt J.A. in R v Spackman, 2012 ONCA 905, 295 CCC (3d) 177, at para 111, stated:

111 A breach of the Crown’s disclosure obligations, without more, does not constitute a breach of s. 7 of the Charter. To demonstrate constitutional infringement, and thus entitlement to a just and appropriate remedy, an accused must show actual prejudice to his or her right to make full answer and defence resulted from the infringement: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 74; Bjelland, at para. 21.

[33] More recently, in R v Quesnelle, 2014 SCC 46, [2014] 2 SCR 390, the Supreme Court of Canada observed as follows:

[11]   The Crown has a broad duty to disclose relevant evidence and information to persons charged with criminal offences.  Stinchcombe [1991 CanLII 45 (SCC), [1991] 3 SCR 326], at pp. 336-40, provides that the Crown is obliged to disclose all relevant, non-privileged information in its possession or control so as to allow the accused to make full answer and defence.  For purposes of this “first party” disclosure, “the Crown” does not refer to all Crown entities, federal and provincial: “the Crown” is the prosecuting Crown.  All other Crown entities, including police, are “third parties”.  With the exception of the police duty to supply the Crown with the fruits of the investigation, records in the hands of third parties, including other Crown entities, are generally not subject to the Stinchcombe disclosure rules.

[12] In R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, this Court recognized that the Crown cannot merely be a passive recipient of disclosure material.  Instead, the Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant to the prosecution or the defence. This Court also recognized that police have a duty to disclose, without prompting, “all material pertaining to its investigation of the accused” (para. 14) as well as other information “obviously relevant to the accused’s case” (para. 59).

[34] Where it is proven on a balance of probabilities that the Crown’s failure to make proper disclosure has impaired the accused’s ability to make full answer and defence, and has thereby resulted in a violation of s. 7 of the Charter, the appropriate remedy will, in most instances, be a disclosure order and an adjournment: R v O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411 at para 83 [O’Connor].

[47]  [The Leading case on stays is Babos] Babos was recently cited and applied in K.D.S. Commencing at para. 102, Jackson J.A. on behalf of a unanimous panel writes as follows:

[102]   The leading decision with respect to the appropriateness of a stay of proceedings is now Babos. In Babos, Moldaver J. reiterated that a stay of proceedings is warranted in the clearest of cases only. He described two categories of cases: “(1) where state conduct compromises the fairness of an accused’s trial (the ‘main’ category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the ‘residual’ category) (O’Connor at para 73)” (at para 31). The case before this Court falls into the main category.

[103]    Justice Moldaver discussed the prevailing case law in terms of a framework consisting of three requirements (Babos):

[32] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan [2002 SCC 12, [2002] 1 S.C.R. 297] at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (ibid., at para. 57).

…

[34] Commencing with the first stage of the test, when the main category is invoked, the question is whether the accused’s right to a fair trial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial; in other words, the concern is whether there is ongoing unfairness to the accused.

(Emphasis added)

[104]      In the case before this Court, the trial judge ordered a stay of proceedings pre-trial. His decision brings into play a line of authority that begins with La.

[105]      In La, Sopinka J. recognized that “in extraordinary circumstances, the loss of a document may be so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial” (emphasis added, at para 24). In that paragraph, Sopinka J. went on to say that in such circumstances, provided the necessary criteria has been met, “a stay may be the appropriate remedy …”. However, he stressed that it will usually be preferable to reserve on an application for a stay of proceedings until all of the evidence is called. On this point, he wrote:

[27] The appropriateness of a stay of proceedings depends upon the effect of the conduct amounting to an abuse of process or other prejudice on the fairness of the trial. This is often best assessed in the context of the trial as it unfolds. Accordingly, the trial judge has a discretion as to whether to rule on the application for a stay immediately or after hearing some or all of the evidence. Unless it is clear that no other course of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse, it will usually be preferable to reserve on the application. This will enable the judge to assess the degree of prejudice and as well to determine whether measures to minimize the prejudice have borne fruit. This is the procedure adopted by the Ontario Court of Appeal in the context of lost evidence cases. In R. v. B.(D.J.) (1993), 16 C.R.R. (2d) 381, the court said at p. 382:

Conclusions

[5] Having reviewed the circumstances of the delayed disclosure at some length, the learned trial judge concluded, at page T130 of the trial transcript of August 19, 2020 [Transcript], commencing at line 25:

I am satisfied that the Crown failed to meet its obligation to make timely and complete disclosure. It doesn’t matter for this purpose whether the delay or oversight lies with the Crown’s office or the Estevan Police Service. For this purpose, they’re one entity.

It would appear, in any event, that neither was diligent in securing and providing the video evidence. It was requested in later March by letter to both the Crown and the police. It would appear the police did not obtain or provide the video until reminded by the Crown, and it appears the Crown didn’t make any inquiry or demand to the police until August 18th, two days prior to trial. This was not diligence by either of them, and the Crown did not argue otherwise. Indeed, the Crown has essentially conceded it did not make timely disclosure and, therefore, the Charter breach, the issue before me, is what remedy I think fit.

(Emphasis added)

[51] Her conclusion is, in this respect, amply supported by the record.

[71] Where the residual category is invoked, the issue is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct could be harmful to the integrity of the justice system: Babosat para 35.

[72] Again, in the extant case, the learned trial judge expressly found that the Crown had not been diligent in securing and providing the requested video evidence and that “an informed community would view the late disclosure, in this case, as unfair”, and that “the integrity of the judicial system would be prejudiced”. (Transcript, page T134, lines 23-25)

[73] As for the prospect of alternative remedies, the learned trial judge expressly considered the Crown’s request for an adjournment of the trial but determined, for the reasons previously set forth herein, that an adjournment, without more, would only result in further prejudice to Ms. Loutitt and would do nothing to convey to the Crown and to the investigators that their inaction was not serious, or was without meaningful consequences.

[75] The existence of alternative remedies does not preclude the imposition of a stay.  In most cases, there will be other remedies available for a breach of the Charter. The question to be determined in every case is whether those alternatives are, in all the circumstances, appropriate instead of a stay: Paterson at para 61. [PJM Emphasis]

[83] In the extant case, the Transcript of the proceedings below confirms that the learned trial judge identified the correct law and applied it to the facts as she found them. She concluded, in the circumstances before her, that the main and residual categories identified in Babos were both implicated; she identified the nature of the prejudice, assessed its gravity, and articulated why she was satisfied that alternative remedies were inadequate.

[84] The learned trial judge concluded, ultimately, that this was one of those exceptional cases where the consequences of the breach could only be remedied by the imposition of a stay of proceedings.

 

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The first treatise to provide a truly practical and comprehensive guide to criminal evidence law in Canada. This casebook guides readers through evidentiary issues in all components of criminal law, providing indispensable insight from Crown, defence, and judicial perspectives.

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