This week’s top three summaries: R v Ndhlovu, 2022 SCC 38: #sex offender registry, R v Harris, 2022 ONCA 739: #absence of evidence, and R v KC, 2022 ONCA 738: 752.1 assessor appointment.
This week’s top case deals with sentencing issues. For great general reference on the law of sentencing, 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.
Sentencing: Principles and Practice
By Danielle Robitaille & Erin Winocur
R v Ndhlovu, 2022 SCC 38
[October 28, 2022] Charter s.7 Constitutionality: Overbreadth – Sex Offender Registry – [Reasons by Karakatsanis and Martin JJ, with Rowe, Kasirer and Jamal JJ. concurring and Wagner C.J., Moldaver, Cote, and Brown JJ. dissenting in part]
AUTHOR’S NOTE: Section 7 of the Charter protects us from laws that impact on our individual autonomy, dignity, and liberty in ways that are contrary to the fundamental principles of justice. Here, an overbreadth analysis of the sex offender registry provisions in the Criminal Code led the SCC to strike down the mandatory lifetime registration for multiple offenders (s.490.013(2.1)) and a 1-year suspended declaration of invalidity against mandatory registration for some offences (s.490.012). Here, particular attention was paid to the ongoing impacts of registration on people and the weak connection between lifetime registration and prevention of sexual offending (the purpose of the provisions).
Overview
[3] These two separate safeguards were removed in 2011 following the enactment of the Protecting Victims From Sex Offenders Act, S.C. 2010, c. 17. Instead, s. 490.012 of the Criminal Code now requires the mandatory registration of all offenders who have been found guilty of any one of the 27 different sexual offences designated in s. 490.011(1)(a). Now each and every such sexual offender is compelled to register their personal information on Canada’s national sex offender registry, regardless of their individual risk of reoffending. In addition to compulsory SOIRA orders, Parliament also imposed a mandatory lifetime registration for offenders who commit more than one offence, irrespective of the nature or timing of the offences and even if they are part of the same transaction (s. 490.013(2.1)).
[4] In this case, the appellant, Eugene Ndhlovu, pled guilty in 2015 to two counts of sexual assault against two complainants at a party in 2011. He was 19 years old at the time. At sentencing, the judge was tasked with tailoring a proportionate sentence that was fit in relation to both Mr. Ndhlovu and the sexual assaults he committed. After canvassing his background and the evidence, the judge found that Mr. Ndhlovu was unlikely to reoffend. However, due to Parliament’s amendments in 2011, the Criminal Code obliged the judge to issue an order requiring Mr. Ndhlovu to comply with SOIRA, and for the rest of his life.
[5] As a result, like all other such offenders, he would be required to report to a police station and forced to supply extensive personal information which would be placed on Canada’s national sex offender registry. SOIRA also imposes ongoing reporting requirements which are numerous, invasive and extensive; including that offenders must keep their information up to date, report their plans for any travel lasting seven or more consecutive days and report any change to their home or employment address. He would have to report annually to the police and be subject to random police checks. Non-compliance with any of the reporting obligations associated with registration carries the threat of prosecution, a maximum of two years’ imprisonment, a fine, or both (Criminal Code, s. 490.031(1)). His presence in the database would mean he would be among the list of persons police may consider to be of interest in their investigations, which may generate further interactions with the police. The impact on Mr. Ndhlovu and anyone subject to these provisions is considerable. The scope of the personal information registered, the frequency at which offenders are required to 2022 SCC 38 (CanLII) update their information, the ongoing monitoring by the state, and the threat of prosecution and imprisonment all interfere with what it means to be free in Canada.
[7] Even when Parliament acts with a laudable purpose, it must still legislate in a constitutional manner and comply with the Charter. It failed to do so when it enacted ss. 490.012 and 490.013(2.1). These measures infringe the liberty interest under s. 7 of the Charter because registration has a serious impact on the freedom of movement and on the freedom to make fundamental choices of people who are not at an increased risk of reoffending over their lifetime.
[8] Because the mandatory registration of those offenders who are not at an increased risk of reoffending does not assist police, it is inconsistent with the principle of fundamental justice against overbreadth. Mandatory and lifetime registration overshoot the mark: subjecting sex offenders who do not have an increased risk of reoffending to obligatory reporting requirements is not connected to Parliament’s 2022 SCC 38 (CanLII) purpose of capturing information that assists police prevent and investigate sex offences. Requiring lifetime registration also goes too far and denies the rights of some individuals in a way that bears no relation to Parliament’s objective.
[9] There are offenders who, because of their individual characteristics, are at a negligible risk of reoffending. Further, the reality is that 75 to 80 percent never reoffend. Based on the Crown’s statistical evidence, there are also a significant number of sex offenders who are at no greater risk of reoffending than members of the general criminal population. As a result, s. 490.012 applies to offenders for whom there is no real possibility that their information may ever assist police — and there is no discretion to exclude such persons from the wide reach of SOIRA’s onerous and ongoing obligations. In addition, the Crown’s expert evidence established that committing more than one sexual offence without an intervening conviction is not associated with a greater risk of reoffending.
[11] Nor are they justified under s. 1 because they are not minimally impairing of Charter rights and the deleterious effects of the provisions outweigh their salutary 2022 SCC 38 (CanLII) ones. The blanket and blunt requirement that all designated sex offenders must be registered, and those convicted of more than one offence must be registered for life, restricts the liberty of offenders who are not at an increased risk of reoffending without any evidence that doing so enhances the ability of police to prevent and investigate sex crimes. While the Crown has asserted that it believes it is necessary to include all offenders for the registry to be as effective as the Crown wants it to be, any such avowal is insufficient to meet its burden of proof under which it is required to justify, not merely explain, the infringement on liberty. Critically, the Crown has adduced no evidence that demonstrates how these provisions are effective in helping police prevent and investigate sex crimes. Indeed, the sparse information in the record points in the opposite direction.
(1) First Instance Proceedings
[16] Importantly, based on the evidence placed before her by the Crown and defence, the sentencing judge found that Mr. Ndhlovu was “unlikely to offend again” (A.R., vol. II, at p. 38). Moen J. stated that he “will be safe to release into the community. I have absolutely no concerns that [he] will re-offend. Nor does the Crown suggest that [he] will” (p. 38).
[17] Despite this finding, due to his conviction for two designated offences, Mr. Ndhlovu was subject to mandatory lifetime registration in Canada’s national sex offender registry pursuant to ss. 490.012(1) and 490.013(2.1) of the Criminal Code. Following sentencing, Mr. Ndhlovu brought an application to challenge both provisions as contrary to ss. 7 and 12 of the Charter.
IV. Analysis
B. Sections 490.012 and 490.013(2.1) Infringe Section 7 of the Charter
[48] Section 7 of the Charter provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
(1) Sections 490.012 and 490.013(2.1) Interfere With the Offender’s Liberty
[51] Underlying the rights in s. 7 is a concern for the protection of individual autonomy and dignity (Carter, at para. 64). Liberty protects “the right to make fundamental personal choices free from state interference” (Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 54; see R. v. Clay, 2003 SCC 75, [2003] 3 S.C.R. 735, at paras. 31-32). Liberty also protects against physical restraint ranging from actual imprisonment or arrest (R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 89; Fleming v. Ontario, 2019 SCC 45, [2019] 3 S.C.R. 519, at para. 65) to the use of state power to compel attendance at a particular place (R. v. Beare, [1988] 2 S.C.R. 387, at p. 402).
[53] However, the nature and extent of the deprivations at issue are much greater here than in Beare. SOIRA does not merely oblige offenders to appear once at a specific time and place and provide one type of personal information. Rather, it creates an ongoing obligation to report extensive information, subject to random checks and other compliance measures, under threat of prosecution and punishment by way of imprisonment, fines, or both. This creates continuous state monitoring that can last decades and for some offenders, like Mr. Ndhlovu, a lifetime.
(2) The Purpose of Sections 490.012 and 490.013(2.1)
[59] The first step in an overbreadth analysis is to determine the purpose of the challenged provisions (R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at para. 24; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at para. 24). It is to that preliminary question that we now turn.
[64] To determine an impugned law’s purpose, courts may consider: statements of purpose in the legislation, if any; the text, context, and scheme of the legislation; and extrinsic evidence such as legislative history and evolution (Safarzadeh-Markhali, at para. 31; Moriarity, at para. 31).
[65] SOIRA’s overall purpose is readily identified. The statement of purpose in s. 2(1) of SOIRA states the Act aims “to help police services prevent and investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders”. In this case, there is no question that the statement of purpose fully reflects Parliament’s aims in enacting SOIRA. Both at the time it was enacted and when it was later amended, Parliament emphasised the Act was designed to assist police. Moreover, it has clearly indicated that SOIRA is intended to assist police in the prevention and investigation of sex offences. However, the challenge in this case is not to the Act as a whole, but is confined to two particular sections of the Criminal Code: one that provides no judicial discretion to exempt offenders from the registry and another that requires lifetime registration for those convicted of more than one designated sexual offence.
[76] In sum, SOIRA was not enacted with complete or total registration as an end in itself. It was enacted to help police prevent and investigate sex offences. The purpose of both challenged measures in the Criminal Code is closely tied to this overall purpose. The specific purpose of s. 490.012 is to capture information about offenders that may assist police prevent and investigate sex offences. The means to achieve this purpose is mandatory registration. Section 490.013(2.1) was similarly designed to give police a longer period of access to information on offenders at a greater risk of reoffending. The means to achieve this purpose is lifetime registration for sex offenders who commit more than one designated offence.
(3) The Challenged Measures Are Overbroad
[78] The Court in Bedford clarified that a law is overbroad even if it overreaches in only a single case (paras. 113 and 123). A law cannot deprive the life, liberty, or security of the person of even one individual in a way that is inconsistent with the principles of fundamental justice. As a consequence, laws that are broadly drawn to make enforcement more practical run afoul of s. 7 should they deprive the liberty of even one person in a way that does not serve the law’s purpose (para. 113). The Court in Bedford concluded that enforcement practicality may justify a broad law under s. 1 of the Charter (para. 144), but it “is no answer to a charge of overbreadth under s. 7” (Safarzadeh-Markhali, at para. 53, citing Bedford, at para. 113).
(a) Mandatory Registration
[79] The sentencing judge concluded that mandatory registration (s. 490.012) is overbroad as it leads to the registration of offenders who are not at an increased risk of committing a future sex offence. We agree. As we explained, the purpose of mandatory registration is to capture information about offenders that may assist police prevent and investigate sex offences. Registering offenders who are not at an increased risk of reoffending bears no connection to this purpose. The provision is overbroad.
(i) An Offender’s Personal Circumstances May Show There Is No Increased Risk of Reoffending
[86] Trials based on historical sexual offences are commonplace in our courts. An offender who committed a sexual offence in the past is sometimes only convicted 2022 SCC 38 (CanLII) and sentenced decades later, when they are at an advanced age and have highly limited mobility. Subjecting such offenders to SOIRA would obviously bear no connection to the purpose of capturing information about offenders that may assist police prevent and investigate sex offences. The conclusion that these personal circumstances may have a bearing on recidivism risk, yet are not captured in statistical models, is consistent with the Crown expert’s testimony.
(ii) Mandatory Registration Is Overbroad Since Some Sex Offenders Are Not at an Increased Statistical Risk of Reoffending
[91] The expert evidence, which the sentencing judge accepted, made clear that there is no perceptible difference in sexual recidivism risk at the time of sentencing between the lowest-risk sexual offenders — the bottom 10 percent — and the population of offenders with convictions for non-sexual criminal offences. In both instances, about two percent of individuals — whether they be the lowest-risk sexual offenders or the people with a criminal record unrelated to a sexual offence — commit a sexual offence over the next five years.
[92] Mandatory registration is overbroad to the extent it sweeps in these lowest-risk sex offenders. As a result of their risk profile, there is no connection between subjecting them to a SOIRA order and the objective of capturing information that may assist police prevent and investigate sex offences because they are not at an increased risk of reoffending. The purpose of the provision is not advanced by including these offenders.
[96] Second, there is no evidence to support the Crown’s reliance on an enhanced rate of offending relative to the general public. The Crown’s own expert could only speculate and testified that the rate of sexual offending by those without any prior conviction for any offence had not been established.
(b) Lifetime Registration
[112] Lifetime registration of those convicted of more than one sexual offence (s. 490.013(2.1)) is also overbroad.
[114] Dr. Hanson’s evidence establishes that lifetime registration for more than one offence without an intervening conviction is overbroad. The purpose of the measure is to give police a longer period of access to information on offenders at a greater risk of reoffending. Yet, as the expert evidence establishes, the measure captures some offenders who are not at a relatively greater risk of reoffending because their two or more offences were committed, for example, in a single transaction. Section 490.013(2.1), however, provides no discretion to exempt offenders in this circumstance.
….., the measures are rationally connected to their objectives. The standard is not onerous; Oakes requires a rational connection, not a complete rational correspondence (R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, at para. 80; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, at para. 148). This test is met here. Since a conviction for a sexual offence is a reliable indicator of an increased risk of reoffending and committing another sex offence after a conviction can increase recidivism risk, it is reasonable to suppose the provisions may further their respective objectives (Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 2022 SCC 38 (CanLII) S.C.R. 567, at para. 48). Yet, as we explain, the measures fail the other branches of the Oakes test.
(1) Sections 490.012 and 490.013(2.1) Are Not Minimally Impairing of an Offender’s Rights
[122] A key issue on this appeal is whether the measures are minimally impairing of an offender’s rights. To be minimally impairing, the challenged provisions must interfere with s. 7 “as little as reasonably possible in order to achieve the[ir] legislative objective” (RJR-MacDonald, at para. 160). The analysis turns on whether there are alternative, less drastic means of achieving the objective in a real and substantial manner (K.R.J., at para. 70). The Crown bears the burden of showing no less drastic means are available (Safarzadeh-Markhali, at para. 63). A court need not find that the alternative measures “satisfy the objective to exactly the same extent or degree as the impugned measure[s]” (Hutterian Brethren, at para. 55 (emphasis in original)). Instead, it suffices that the alternative measures “substantially” achieve the challenged measures’ objective (paras. 55 and 60). For this reason, the Court in G rejected the Crown’s argument that since recidivism risk could not be perfectly predicted, the mandatory and permanent registration of offenders who were found not criminally responsible on account of mental disorder in Ontario’s sex offender registry was minimally impairing. The Court concluded that absolute certainty in risk assessments cannot be expected (para. 75). For similar reasons, we conclude the Crown has not discharged its burden on this step.
[124] When the purpose of mandatory registration is properly characterized, it is apparent that the Crown has not met its burden under minimal impairment. To begin, the Crown concedes that restoring judicial discretion in the registration process would allow for a 90 percent inclusion rate of offenders in the registry. Yet the Crown did not adduce any evidence to explain why an inclusion rate of 90 percent would not substantially achieve s. 490.012’s purpose of capturing information that assists police prevent and investigate sex offences. Specifically, no evidence or plausible argument was provided to explain why a discretion to exclude offenders from SOIRA where the impacts are likely too onerous or unrelated to s. 490.012’s purpose would not substantially achieve Parliament’s aims. In fact, the Crown did not adduce any evidence about the difficulties faced by police in preventing or investigating sexual offences before 2011, when a form of judicial discretion was in place. Indeed, the Crown’s 2022 SCC 38 (CanLII) expert, Dr. Hanson, was unable to find any study of SOIRA’s efficacy or consequences before the 2011 amendments.
[126] In essence, the Crown’s argument rests on the proposition that all offenders must be registered unless the defence can demonstrate that judicial discretion will not hamper the police’s ability to prevent and investigate sex offences. The unproven premise is that police can only effectively prevent and investigate sex offences if all designated offenders are registered. The assumption appears to be that if some are good, more is better, and all is best. The Court in Carter rejected a similar argument at the minimal impairment stage because it “effectively reverses the onus under s. 1, requiring the claimant whose rights are infringed to prove less invasive ways of 2022 SCC 38 (CanLII) achieving the prohibition’s object” (para. 118). The same concern in Carter arises in this case. It is the Crown, not Mr. Ndhlovu, who bears the burden under s. 1. Rather than call evidence that shows less infringing measures would fail to substantially achieve the measure’s objective, the Crown relies on assertion and conjecture. That is not enough to meet its burden under s. 1. As the Court stated in Carter, at para. 119, “[j]ustification under s. 1 is a process of demonstration, not intuition or automatic deference to the government’s assertion of risk” (citing RJR-MacDonald, at para. 128).
[127] Nor has the Crown met its burden on lifetime registration (s. 490.013(2.1)). As noted, the expert evidence indicates that offenders who commit more than one offence without an intervening conviction have no increased recidivism rate relative to offenders who commit a single offence. The Crown has not explained why exempting this category of offenders would not achieve s. 490.013(2.1)’s purpose — that is, to give police a longer period of access to information on offenders at a greater risk of reoffending — in a real and substantial manner.
(2) Sections 490.012 and 490.013(2.1)’s Deleterious Effects Outweigh Their Salutary Effects
[133] It is, moreover, unclear how SOIRA could even prevent a sex offence. Det. Hove provided only a hypothetical example where the police used the database to intercept an offender after witnessing some suspicious behaviour. In theory, of course, the registry might prevent offences if a serial offender is apprehended using it, preventing future assaults by that person, but no evidence was adduced to support this hypothesis.
[134] More significantly, the Crown has adduced no evidence that demonstrates the salutary effects of the challenged measures. Under s. 1, the onus is on the Crown to 2022 SCC 38 (CanLII) justify the specific infringing measures, not the overall scheme (G, at para. 72). The Crown did not adduce any evidence on the difficulties that police faced in investigating sexual offences with SOIRA before the 2011 amendments and how the amendments mitigated these difficulties. No evidence was adduced to demonstrate the benefit of registering every sex offender, without regard for their risk of reoffending. To the contrary, we note that Dr. Hanson, the Crown’s own expert, testified that “[b]lanket policies that treat all sex offenders as ‘high risk’ waste resources by over-supervising lower risk offenders and risk diverting resources from the truly high-risk offenders who could benefit from increased supervision and human service” (A.R., vol. II, at p. 236). No more evidence was presented on the benefits that flow from police having longer access to the information of offenders who have committed multiple offences without an intervening conviction.
[135] In this case, we must weigh those potential and theoretical benefits against the impact on registrants. The impact on anyone who is subject to the reporting requirements of a SOIRA order is considerable. To reiterate, SOIRA’s reporting requirements are not routine: the scope of the personal information registered, the frequency at which offenders are required to update their information and, above all, the threat of imprisonment make the conditions onerous. Additionally, these effects are more acute when considering their effects on marginalized populations, such as people experiencing homelessness. Considering these deleterious impacts, the sparse evidence on the provisions’ benefits and the fact that the registration of approximately 10 percent of offenders who have the lowest recidivism risk does not serve the provisions’ 2022 SCC 38 (CanLII) purpose, we conclude the Crown did not meet its burden at this stage either. As result, the Crown has not shown that ss. 490.012 and 490.013(2.1) are saved under s. 1 of the Charter.
V. Result and Remedy
[136] We would allow the appeal and declare ss. 490.012 and 490.013(2.1) of no force or effect under s. 52(1) of the Constitution Act, 1982. On mandatory registration, we find a one-year suspension of the declaration is appropriate given concerns about public safety and since there are many ways Parliament could address the legislative gap for individualized assessment (G, at para. 165). An immediate declaration, however, is appropriate for lifetime registration.
[137] The framework governing Charter remedies was recently revisited in G. Once the court has determined the extent of the law’s inconsistency with the Charter (para. 160), the next step is to determine whether a tailored remedy would be appropriate (such as reading down, reading in, or severance), rather than a declaration of invalidity applying to the whole of the challenged law (para. 163).
VI. Conclusion
[143] We would allow the appeal. The judgment of the Court of Appeal of Alberta is set aside. Sections 490.012 and 490.013(2.1) of the Criminal Code infringe s. 7 of the Charter, and the Crown has not demonstrated the infringement is justified under s. 1. The provisions are therefore declared of no force or effect under s. 52(1) of the Constitution Act, 1982. The declaration in respect of s. 490.012 is suspended for one year and applies prospectively. Mr. Ndhlovu is exempted from the suspension of the declaration. An immediate declaration is granted for s. 490.013(2.1) and applies retroactively.
R v Harris, 2022 ONCA 739
[October 28, 2022] Jury Instructions and Reasonable Doubt Arising from an Absence of Evidence [Reasons by B.W. Miller J.A. with L.B. Roberts and B. Zarnett JJ.A. concurring]
AUTHOR’S NOTE: Qualitative assessments of the defence argument before a jury is an area where jury instructions often cross the line into prohibited territory. Sometimes they create an unbalanced charge and sometimes they undermine principles necessary for the jury to consider the facts of the case appropriately. Here, qualitative statements about the defence argument failing (in the eyes of the judge) to diminish the evidence of the police against the accused had the effect of undermining the principle that a reasonable doubt can arise from an absence of evidence. The accused had argued that police failure to search cell phones, dust for fingerprints, and decision to not investigate alternative suspects created a reasonable doubt about possession of guns and drugs found an apartment search. The correct reasonable doubt general instruction was inadequate to correct this problem and a new trial resulted.
Reasons
[1] The appellant was arrested in the hallway outside of unit 1412 of a residential condominium on Elm Drive. He had over $2,000 and three cell phones on his person. A search warrant executed on unit 1412 resulted in the seizure of 5.18 kg of cocaine, one loaded semi-automatic firearm, three cell phones, and what appeared to be a debt list, as well as additional drug paraphernalia in his storage locker.
[2] The appellant was not the initial target of the police investigation that led to his arrest. A confidential informant had provided information that Ewan Sutherland, a drug trafficker, would be looking at bricks of cocaine, which the police understood to be a matter of drug trafficking. The police were able to corroborate much of the information they received about Sutherland and executed a warrant at Sutherland’s residence, where they found a 12-ton cocaine press. Surveillance of Sutherland on March 5 led the police to the Elm Drive condominium, where they observed Sutherland driving into the parking garage. The police later observed recorded security video showing Sutherland using the security code associated with unit 1412 to enter the parking garage, entering the building through the parking garage, and proceeding to the 14th floor. He was observed returning two hours later with a bag that he put in his car and returned home.
[3] Later that morning, the police observed the appellant park in the underground garage. After 45 minutes, the police observed the appellant take the elevator from the 14th floor to the parking garage while carrying a black bag and keys. The appellant left the building and returned later that afternoon. He was arrested as he approached unit 1412 with keys in his hands. The police heard voices in the unit and entered it to secure it. As it turned out, the television was on, but no one was present. The police remained in the unit but did not conduct any searches while awaiting a warrant. Approximately eight hours later, the police obtained a warrant and searched the unit, seizing four cocaine bricks and two sealed bags of cocaine from the freezer, along with a handgun and ammunition, and various articles of drug paraphernalia.
[5] After a trial by jury, the appellant was found guilty and convicted of various weapons offences and offences related to drug trafficking.
[9] For the reasons given below, I would allow the appeal. Although there is no merit in the Charter arguments advanced, there is a risk that the jury would have understood the trial judge to have removed a defence that the jury needed to consider. I would quash the convictions and order a new trial.
Analysis
(2) The instructions to the jury
[21] The appellant argues that statements the trial judge made in his instructions to the jury compromised the fairness of the trial in two respects: (1) he instructed the jury that the case for the Crown was strong and the defence evidence, including the appellant’s testimony, was not credible; and (2) he instructed the jury that there was no evidence to support the defence submission that there was evidence capable of raising a reasonable doubt.
(1) Commentary on the relative strength of the Crown’s case and the defence evidence
[22] Four times over the course of the charge, the trial judge told the jury that the case against the appellant was “strong” or “very strong”. In some instances, this judgment was qualified by statements such as “on its face” or “in the absence of any evidence to the contrary”, which the appellant says invited the conclusion that the defence evidence was weak and incapable of meeting the Crown case.
[23] This court has explained that there are reasons why a trial judge should be reluctant to express an opinion on the strength of the evidence, even where it is permissible. A jury is likely to be impressed with the experience and legal expertise of a trial judge, and there is a danger that members of the jury will incline towards deference to the trial judge’s opinion of the merits of the evidence and strength of the competing cases. This undermines the independent fact-finding role the jury is to perform and potentially jeopardizes the right to a fair trial: R. v. Walker, 2019 ONCA 806, 58 C.R. (7th) 7, at para. 20. However, it is not impermissible for the trial judge to have a view of the strength of the evidence and “express it as strongly as the circumstances permit, as long as it is made clear to the jury that the opinion is given as advice and not direction”: R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, at paras. 27 and 31. In this case, the trial judge explained that his characterization of the evidence was “a factual conclusion, my factual conclusion, and you do not have to agree with me on that.” Taken on their own, these statements, together with the explanation that the jury was entitled to disagree with the trial judge’s assessment of the evidence, would not have amounted to an error. However, as explained further below, when these statements are read together with the removal of the defence of absence of evidence from the jury’s consideration, there is a real danger that the jury would not have understood it was entitled to disregard the trial judge’s expressed opinion about the absence of evidence.
(2) Instructing the jury there was no evidence that could raise a reasonable doubt
[24] The theory of the defence was that – notwithstanding that the appellant was found steps from the door with keys in his hand, his driver’s licence indicated the unit as his address, and the appellant’s two passports and his identification were found in one of the bedrooms of the unit and a photo album with old photos of him were in another – the appellant did not actually live at Elm Drive and did not know that there were drugs and a firearm inside the unit.
[25] The appellant argued that there was evidence that Kamal Hill occupied the unit; in addition to the appellant’s testimony to that effect, police notes indicated that prescription medication issued to Hill was found in the second bathroom, and mail addressed to Hill was seen inside the unit. Furthermore, the appellant testified that the owner of the unit was his uncle, Selwyn Harris, a statement supported by a mortgage document seized by the police that indicated Selwyn Harris as the owner.
[26] The appellant testified that he did not live at Elm Drive and did not know of the drugs and firearm. On his account, he had arrived from Jamaica the day before his arrest, gone from the airport to a residence in Brampton he shared with his ex- wife, and later went to Elm Drive to spend the night in the unit after a having a disagreement with his ex-wife and her son. The appellant’s ex-wife testified and confirmed the appellant’s account.
[27] There were two related aspects to the appellant’s defence: (1) the police investigation was negligent, and as a result, there were gaps in the evidence that raised a reasonable doubt; and (2) having regard to the evidence and the absence of evidence, there was a reasonable doubt as to the appellant’s guilt. The appellant argues that the instructions of the trial judge effectively dismantled both these arguments and removed them from the jury’s consideration. As a result, the appellant’s defence was not heard, and he did not receive a fair trial. As explained below, I agree that although the trial judge likely only intended to remove the first of these, there is a real risk that the jury would have understood him to have removed the second as well, which jeopardized the appellant’s right to a fair trial. I would allow the appeal on this basis.
[28] In addition to Ewan Sutherland, two other persons had a connection to the unit, potentially giving rise to competing inferences as to knowledge and control of the drugs and gun. The appellant pointed to the decision of the police not to investigate Kamal Hill or Selwyn Harris as suspects: the police did not interview either of them, did not conduct fingerprint analysis of the drug packaging, and did not analyze any of the four cell phones seized (two from the appellant and two from inside the unit) for any evidence they might contain.
[29] In his instruction, after recounting some of the evidence that connected Hill and Selwyn Harris to the unit, the trial judge remarked that “this evidence respecting Mr. Hill and Selwyn Harris does not diminish the evidence the police had against Mr. Harris.” He carried on to say, “[s]ometimes investigators fail to do something that leaves a hole in the Crown’s case. I would suggest to you that this is simply not the case here. In the absence of anything other than the evidence discovered by the police on March 5, 2014, this was a very strong case.”
[30] As the appellant argues, there are problematic aspects to this statement. To say that the defence evidence “did not diminish the evidence the police had against Mr. Harris” was to say that the evidence was not capable of raising a reasonable doubt. That was the very matter the jury had to decide. The trial judge continued by expressly negativing the defence argument that three omissions in the police investigation left a hole in the Crown case and raised a reasonable doubt:
1. Not searching the cell phones: the trial judge told the jury that“the defence could have hired someone to search those phones themselves.” He went on to say, “I am instructing you that the absence of information about what was on the cell phones does not establish anything. It is no more than an absence of evidence and not a basis upon which you should infer anything for the Crown or the for the defence.”
2. Not dusting for fingerprints: the trial judge stated: “the same analysis applies to this point … It was open to the defence to ask for fingerprints to be run or to seek to have run the test themselves.”
3. Decision not to investigate alternative suspects: the trial judge told the jury that they “might well consider that police should be investigating these people based on what you have heard, but that is not the issue in this case. The issue in this case is whether the Crown has proved possession by Mr. Harris, not whether these other people may also have committed crimes.” He further commented on the phenomenon of tunnel vision: “[t]his term applies when the police fail to pursue legitimate lines of inquiries to solve a crime because of a premature rush to judgment. That is not what happened here.”
[31] As the appellant argues, the trial judge’s repeated statement that “in the absence of anything to the contrary” this was a strong case against the appellant may have left the jury with the misimpression that it was up to the appellant to elicit evidence that would raise a reasonable doubt given the strength of the case against him. This would have been an error….
[32] …As the Crown case against the appellant was circumstantial, an available defence was to argue that there was a competing inference that raised a reasonable doubt – that someone else occupying or using the residential unit controlled the gun and drugs, and because the appellant was only a short-term guest, he was unaware of them.
[33] I do not, however, accept the defence theory of inadequate police investigation. The police officers were never cross-examined on any of the alleged investigative omissions and thus had no opportunity to explain why certain investigative steps were not taken. The trial judge did not err in instructing the jury to disregard it.
[34] But the form of the instruction created a problem. In instructing the jury on the problems with this defence, the trial judge potentially obscured from the jury’s view a legitimate defence the jury needed to consider: was there evidence that the jury could have accepted (including the evidence that the appellant did not regularly occupy the unit and other people may have had control of the unit) or an absence of evidence capable of raising a reasonable doubt as to the appellant’s guilt? The trial judge instructed the jury “(t)here was some evidence available to the police that someone called Kamal Hill received mail at that address. There is some evidence that Selwyn Harris owns the unit, holds the mortgage on the unit and is authorized to occupy it. But this evidence respecting Mr. Hill and Selwyn Harris does not diminish the evidence the police had against Mr. Harris.”
[35] In shutting the door on the failure to investigate argument, the trial judge went a step too far and essentially removed from the jury’s horizon the defence that the connections of other persons to the unit raised a reasonable doubt that the drugs and gun were under the appellant’s control. The Crown points to other passages in the charge that are said to demonstrate it could not have been the trial judge’s intention to remove this defence. For example, the trial judge provided the standard instruction on reasonable doubt from R. v. Lifchus, [1997] 3 S.C.R. 320. In my view, the Lifchus instruction, coming as it did in another part of the charge unrelated to the defence theory from the evidence of the ownership and control of the condominium, was not adequate to remedy the potential misunderstanding. There is a risk that the jury would have been confused by the instruction and not have understood that they had to consider and assess this defence. Accordingly, there was a risk that the appellant did not receive a fair trial.
Disposition
[36] I would allow the appeal in part, quash the convictions, and order a new trial.
R v K.C., 2022 ONCA 738
[October 28, 2022] Dangerous and Long-Term Offenders: Appointment of the 752.1 Assessor [Reasons by Copeland J.A. with K. van Rensburg and G. Pardu JJ.A. concurring]
AUTHOR’S NOTE: Dangerous and Long-Term Offender applications begin with remand of the accused into the custody of a court appointed assessor to prognosticate future rehabilitation or recidivism potential of the accused. Clearly, the person chosen for this task can make a huge difference to the defence. Herein, the ONCA explains that defence counsel do not have to sit idly by while the appointment occurs to whatever institution/person the Crown prefers. There is no presumption in favour of the choice of assessor presented by the Crown. Perception of this chosen assessor as neutral is important and a valid consideration for appointment by the Court. What is envisaged is a summary process of selection where rules of evidence are relaxed, but the defence can mount an argument in favour a specific choice. A number of factors for qualification are listed in the decision and follow the general line of authorities related to White Burgess, 2015 SCC 23. Good hunting!
Introduction
[1] The appellant was found guilty in a trial by jury of four counts of sexual assault, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46, and four counts of sexual interference, contrary to s. 151 of the Criminal Code. The convictions related to offences committed against his two young daughters and two young nieces, and spanned dates between January 2004 and November 2012. Following a hearing, the appellant was designated a dangerous offender, pursuant to s. 753(1)(a) and (b) of the Criminal Code. The trial judge imposed an indeterminate sentence, pursuant to s. 753(4) and (4.1).
[6] Second, the appellant argues that the trial judge erred in law in his interpretation and application of s. 752.1 of the Criminal Code, which governs the designation of the person to perform an assessment for a dangerous offender application. In particular, the appellant argues that the trial judge erred in holding that the court should defer to the Crown’s choice of assessor, and only inquire into whether the person proposed by the Crown is capable of performing the assessment.
[9] With respect to the second ground raised by the appellant, I find that the trial judge erred in law in applying a test for selection of the assessor under s. 752.1 of the Criminal Code that involved a presumption of designating the assessor proposed by the Crown so long as the person has the capacity to perform the assessment.
[10] However, I am satisfied that the error caused no substantial wrong or miscarriage of justice. There is no reasonable possibility that the result would have been different absent the error.
Did the trial judge err in his interpretation and application of s. 752.1 of the Criminal Code?
[75] In my view, the trial judge erred in law in applying a test for the selection of the assessor that involved a presumption of designating the assessor proposed by the Crown, if that person is capable of performing the assessment. As I explain below, principles of statutory interpretation lead me to conclude that s. 752.1 provides for the trial judge to designate the assessor, and in so doing, not to start with a presumption in favour of the Crown’s proposed assessor.
[76] However, in the circumstances of this appeal, I am satisfied that there was no unfairness and would not allow the appeal on this ground.
[77] In addition, like the trial judge, I accept that the courts should be concerned not to allow the selection of the assessor in a dangerous offender proceeding to become protracted and lead to further delay of dangerous offender proceedings. As I explain below, s. 752.1 does not specify any particular procedure for a trial judge to follow in hearing from the parties and designating the assessor. It is within the trial management power of a judge to determine the procedure to be used to hear from the parties on the issue of designating the assessor.
(i) Reasons of the trial judge on the appointment of the assessor under s. 752.1
[78] The trial judge’s ruling regarding the selection of the assessor was quite brief. Rather than summarize it, I reproduce the key paragraphs:
I take the central question to be whether the person proposed can perform the assessment required. No further vetting is called for by the Court beyond simply determining whether the proposed expert can perform the function contemplated by section 752.1 in the general context of Part XXIV. Indeed, on the limited information which is before the Court at this stage, it is difficult to conceive how the Court could make a determination beyond the basic threshold. In my view, especially given the dearth of evidence now before the Court, the section should not be read to direct the invention of more comprehensive criteria for the Court to satisfy itself about the specific appropriateness of a given assessor. The Court should strive to remain an impartial arbiter with as little interest as possible in the selection of witnesses beyond the rules of admissibility.
I accept that the forensic psychiatrist proposed by the Crown can perform the assessment here. In addition to being a medical practitioner licensed to practice in Ontario, the doctor in question is possessed of specialized expertise directly applicable to the interests of justice in this context. I am not surprised to learn that he has been designated as an assessor in the s. 752.1 context some 160 times before.
I disagree that section 752.1 ought to be used as a mechanism to allow the accused to participate in the selection of an expert so as to facilitate his presentation of evidence to the Court. An offender has the ability to call any evidence he wishes on sentencing, including any expert opinion evidence bearing on the issues relevant to a dangerous offender or long-term offender designation. Any issue with respect to funding the marshaling of such evidence should be dealt with through the legal avenues suited to that subject.
[79] He then designated the person proposed by the Crown, Dr. Klassen.
[80] I note that the approach taken by the trial judge, or similar approaches which rely on a presumption in favour of the person proposed by the Crown, absent cogent reasons not to select them, have been followed in a number of trial-level decisions: R. v. Billings, 2017 ONSC 278; R. v. R.M.P., 2019 ONSC 2235; R. v. Wilson, 2018 ONSC 964.
[81] However, there is another line of trial-level decisions which rejects an interpretation of s. 752.1 that involves a presumption in favour of the assessor proposed by the Crown. The leading of these decisions is that of Paciocco J., as he then was, in R. v. J.V., 2015 ONCJ 766. See also: R. v. Torres, 2007 CanLII 16830 (Ont. S.C.); R. v. Blackwood, 2010 ONSC 6178; R. v. Stratton, [2010] O.J. No. 6323 (S.C.).
(iii) Analysis
[87] Section 752.1 functions as a gateway to dangerous offender proceedings. It requires a trial judge to make two decisions: (i) whether the threshold to order an assessment has been met; and if so, (ii) designating the person to perform the assessment. In this case, although the issue of whether the threshold was met to order an assessment was a live issue in the Superior Court, it is not in issue on appeal. The only issue before this court relates to the issue of how the person who will do the assessment is to be “designated by the court”.
[88] This ground of appeal involves a question of statutory interpretation. As I explain below, applying principles of statutory interpretation, I come to the conclusion that s. 752.1 provides for the trial judge to designate the assessor and in making that decision, the trial judge should not start with a presumption in favour of the person proposed by one side or the other. In light of this interpretation, I conclude that in this case, trial judge erred in law in applying a test for the selection of the assessor that involved a presumption of designating the assessor proposed by the Crown as long as that person is capable of performing the assessment required.
a. The text of s. 752.1
[90] I begin with the text of s. 752.1 of the Criminal Code, which provides as follows:
On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1. [Emphasis added]
[92] The language of the assessor being “designated by the court” makes clear that it is the court’s role to decide who will perform the assessment. In my view, this language is not supportive of an interpretation which creates a presumption in favour of the assessor proposed by the Crown.
[93] Further, I agree with the observation of Paciocco J. in J.V., that “[h]ad Parliament intended the judge’s role to be nothing more than to assess the competence of the Crown’s chosen appointment, it could easily have said so, but it did not”: J.V., at para. 8. This conclusion is also supported by the legislative history, which I discuss further below.
[94] The second observation I make is that the text of s. 752.1 provides that in designating the assessor, the court must consider the capacity of the person to be designated to perform the assessment or to have an expert perform the assessment. This arises from the language “who can perform an assessment or have an assessment performed by experts”.
[95] The language referring to the capacity of the person appointed to perform the assessment speaks to the need for the judge to consider whether any proposed assessor is able to do the assessment. In its ordinary meaning, I would understand this to include, at a minimum, factors such as having the relevant expert qualifications, and having the ability to perform the assessment within the 60 days set out in s. 752.1 (subject to the court’s authority to extend that time by up to 30 days, pursuant to s. 752.1(3)). But there is nothing in the language of the text speaking to capacity to perform the assessment that suggests a presumption in favour of the person proposed by the Crown.
[100] I draw two conclusions from the history. First, the 1997 amendment was intended to create a procedure where the court would designate the person to perform the assessment, and where there would be one court-ordered assessment rather than two. This purpose supports an interpretation of s. 752.1 that does not create a presumption in favour of the assessor proposed by the Crown. I agree with the observation of Paciocco J. in J.V., at para. 10, that having one neutral assessor appointed by the court enhances the appearance of justice because it removes any perception that the appointment has been made to secure a litigation advantage. Further, if the person designated to perform the assessment is perceived to be neutral, it increases the likelihood that only one expert witness will ultimately be required at the hearing: J.V., at para. 10; Torres, at paras. 8-10. This is also consistent with the concern that it may be difficult in some communities to arrange for more than one forensic psychiatrist.
[101] Second, turning back to the text of s. 752.1, the predecessor provisions which provided for one assessor nominated by the Crown and one by the defence show that language was available to Parliament, if it had intended the current provision to have a presumption in favour of the assessor proposed by the Crown, to make such an intention clear. The fact that Parliament chose to use language that speaks only to the court designating the person to perform the assessment supports that no presumption in favour of the Crown’s proposed assessor was intended.
[103] …It does not follow from the fact that the Crown must bring the application to appoint an assessor that there should be a presumption in favour of the person proposed by the Crown.
[104] Nor am I persuaded by the argument that the Crown would be at a litigation disadvantage if s. 752.1 is interpreted as not involving a presumption in favour of the assessor proposed by the Crown. I reach this conclusion for three reasons.
[105] First, it is inconsistent with the modern conception of expert witnesses as independent, impartial, and unbiased, which I discuss further below.
[106] Second, it is open to either party to call expert witnesses beyond the expert designated by the court under s. 752.1.
[107] Third, if the report of a neutral expert does not support the Crown theory, this should not be conceptualized as a litigation disadvantage, but rather as a signal that the application may be misconceived.
c. The impartial, independent, and unbiased role of expert witnesses – in particular, an expert designated by the court
[110] The modern approach to expert evidence stresses the fundamental requirement that expert evidence be impartial, independent, and unbiased: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 32.
d. Relevance of trial efficiency concerns
[112] …However, in his s. 11(b) ruling, the trial judge returned to the issue of designating the assessor, and stated: “I essentially decided that the last thing the criminal law needs is yet another litigation intersection.”
[113] …In my view, interpreting s. 752.1 as not creating a presumption in favour of the assessor proposed by the Crown does not lead to the result that the selection process should become a protracted hearing.
[114] Section 752.1 does not specify any particular procedure for a trial judge to follow in hearing from the parties and designating the assessor. How a trial judge carries out this task is a matter within a judge’s trial management power. The Supreme Court has described the trial management power as allowing trial judges “to control the process of their court and ensure that trials proceed in an effective and orderly fashion”: R. v. Samaniego, 2022 SCC 9, [2022] S.C.J. No. 9, at paras. 19-26. The question of the procedure to be followed for a trial judge to receive submissions on the choice of a court-appointed assessor falls squarely within the trial management power. In exercising the trial management power in the context of designating an assessor under s. 752.1, trial judges should bear in mind that the selection of an assessor is a preliminary step in the dangerous offender proceeding, and should be conducted in a relatively summary fashion.
[116] If the parties are unable to reach agreement, it will be for the trial judge to determine the summary procedure to receive any submissions or information about the proposed assessors, and to designate the assessor in accordance with s. 752.1.
[117] …At a minimum, if the parties are unable to agree to an assessor, the trial judge must provide an opportunity for both sides to make a proposal of one or more people to conduct the assessment, and submissions as to who should be designated….
[118] Nor do we exhaustively determine what factors a court should consider in deciding whether a proposed assessor “can perform an assessment”. At a minimum, the capacity to perform an assessment would include consideration of the expert qualifications and experience of the person or persons proposed to conduct the type of assessment required, and the ability to conduct the assessment and prepare the report within the timelines set out in s. 752.1….
e. Conclusion on interpretation of s. 752.1 and designation of the assessor
[119] Considering all of the factors above, I conclude that s.752.1 provides for the trial judge to designate the assessor. It does not create a presumption in favour of the assessor proposed by the Crown. A trial judge should provide an opportunity for both parties to make submissions regarding the choice of assessor, including proposing one or more people to conduct the assessment. It is within the trial judge’s trial management power to determine the procedure that they use to receive submissions.
[121] Although I conclude that the trial judge erred in his interpretation and application of s. 752.1 of the Criminal Code, in the circumstances of this appeal, I am satisfied that there was no unfairness and I would not allow the appeal on this ground. I turn now to the issue of the application of the curative proviso in dangerous offender proceedings.
[147] Considering all of these factors together, I am satisfied that there is no reasonable possibility that the result of the dangerous offender hearing would have been any different had the trial judge not erred in law in his approach to the designation of the assessor.
Conclusion
[148] I would dismiss the appeal.
Sentencing: Principles and Practice
By Danielle Robitaille & Erin Winocur
