This week’s top three summaries: R v Gravelle 2021 ONSC 5979: #expert sources, R v Strybosch, 2021 ONSC 6109: bargain #repudiation , and R v Saleh-Mohamed, 2021 ONSC 4260: s.10 #shift in investigation.
R v Gravelle, 2021 ONSC 5979
[September 9, 2021] Expert Evidence Sources: Requirement of Circumstantial Guarantees of Trustworthiness [Madam Justice Julianne Parfett]
AUTHOR’S NOTE: This case provides a good overview of admissibility of expert evidence. Also, in one aspect, the evidence was disallowed on the basis that the police expert witness relied on untested interviews of disreputable witnesses, police reports (as opposed to reasons for judgment) and newspaper reports. The logic behind this was that these sources lacked circumstantial guarantees of trustworthiness. As such, the expert opinions built upon them were not permitted to be entered before a jury.
Summary of Allegations
[2] At approximately 8:28 p.m. on March 15, 2018, the complainant, Jason Kornyk attended what was supposed to be a pre-arranged meeting with an associate of his at a poutine shop in the Vanier area of Ottawa. Shortly after his arrival, Mr. Kornyk saw two very large men enter the restaurant. The men are alleged to have been Curtis Gravelle and Jimmy Creswell.
[3] While Mr. Creswell stayed at the door, Mr. Gravelle approached Mr. Kornyk and told Mr. Kornyk that Mr. Kornyk had a tattoo and that he, Mr. Kornyk, would be coming with Mr. Gravelle to have it ‘covered’1. Mr. Kornyk refused to go with Mr. Gravelle and pulled out his phone and dialed 911. Mr. Gravelle and Mr. Cresswell quickly left the restaurant and fled the area.
[4] They were arrested a short time later in a truck with two other people, Mr. Latourelle and Mr. Willmett. Found in the truck was a blow torch.
[5] The Crown seeks to prove that Mr. Gravelle, Mr. Latourelle and Mr. Willmett intended to use the blow torch to forcibly remove a tattoo on Mr. Kornyk’s arm. This tattoo referenced the Hell’s Angels and used the Hell’s Angels logo.
Legal Principles
[6] The starting point for any analysis of the admissibility of expert evidence is that it is prima facie inadmissible unless it meets the requirements as set out in R. v. Mohan[3].
[7] The evidence must meet four threshold criteria:
• Relevance;
• Necessity;
• Not otherwise subject to an exclusionary rule; and
• The expert is properly qualified.
[8] The last criterion has been recently held in the White Burgess case to include the requirement that the expert be impartial, independent, and unbiased.[4]
[9] The inquiry into the admissibility of expert evidence is a two-step process. At step one, the Applicant must establish the threshold requirements of admissibility: relevance, necessity, absence of an exclusionary rule and a properly qualified expert.
[10] At step two, the judge balances the potential risks and benefits of admitting the evidence to decide whether the potential benefits justify the risks. This process is described in R. v. Abbey No. 1 as a “case-specific cost-benefit analysis.”
[11] The “benefit” side involves a consideration of the probative value of the evidence in question and the significance of the issue at which it is directed. Reliability of the evidence must be considered as part of the probative value analysis. Reliability concerns are described in R. v. Abbey No. 1 as:
[reaching] not only the subject matter of the evidence, but also the methodology used by the proposed expert in arriving at his or her opinion, the expert’s expertise and the extent to which the expert is shown to be impartial and objective.[5]
[12] When assessing the “cost” side of the cost benefit analysis, the trial judge is addressing the various risks inherent in admitting expert evidence, described as “consumption of time, prejudice and confusion.”[6] The most important danger cited is that the jury will abdicate its fact-finding role because of being blinded by or overly impressed by the evidence of an expert.[7]
[13] Relevance is described as ‘logical relevance’. In other words, the proffered evidence must tend to make proof of a fact in issue more likely than proof of that fact would be without the evidence.[8]
[14] Necessity refers to an assessment of whether the jury could decide an issue without that opinion evidence. If it could not, then the necessity criterion is met. As noted very recently by the Ontario Court of Appeal,
To meet the Mohan criterion of necessity, the question is whether the expert will provide information which is likely outside the ordinary experience and knowledge of the trier of fact. “The subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge”. Expert evidence is not necessary if triers of fact can form their own conclusions without help because to do otherwise risks abdicating the role of deciding the facts to the expert. “Necessity” means that the evidence must be more than merely “helpful”, but necessity need not be judged “by too strict a standard”.[9]
DETECTIVE LAURA EMPNEY’S QUALIFICATIONS
[17] Det. Laura Empey is a police officer with the Belleville Police Service. She has 25 years’ experience including 10 years with the Drug/Gun & Gang/Intelligence units. In 2018, she joined the provincial Biker Enforcement Unit (BEU). As part of her experience with the Drug Unit and the Guns and Gang Unit, she investigated cases involving biker gangs. Since May 2021, she has returned to Belleville Police, although she continues to liaise with the BEU. Her statement of qualifications is filed as Exhibit #1 on this hearing.
[18] As part of her experience with the BEU, Det. Empey testified that she was assigned as a primary investigator for several outlaw motorcycle gangs. In that role, she monitored the membership of each of these gangs. She was present during the execution of search warrants at the premises of motorcycle clubs and she attended events put on by motorcycle clubs. The purpose of this activity is to monitor membership, changes in membership and the status of individuals within the membership. On occasion, she has talked directly with members of motorcycle clubs.
Analysis
Reliability
[36] Defence counsel object to Det. Empey testifying about the evidence in relation to the lengths to which a motorcycle club will go to ensure no one who is not a member does not wear a ‘death head’ logo tattoo. They argue that the supporting evidence in relation to this part of Det. Empey’s report is hearsay and is not sufficiently reliable to justify its reception into evidence.
[37] The Crown contends that any issues of reliability should go to the weight to be attributed to the evidence.
[38] As set out in R. v. Lavallee, an expert opinion is admissible even if it is based on second-hand evidence.[19] That decision, however, also noted that there is a difference between hearsay evidence that has circumstantial guarantees of trustworthiness and that which is inherently suspect. In the latter case, independent proof of the evidence is required.[20] Moreover, the trial judge’s function as gatekeeper requires that the judge assess reliability at the initial stage of determining admissibility. If it meets the threshold test, then it is up to the jury to determine the weight to be given the evidence.[21]
[39] The supporting material for the sub-sections of section F entitled ‘What occurs when a non-member wears the death head logo/tattoo’ and ‘The removal process of a death head tattoo/Hell’s Angel logo’ is primarily based on the untested interview of a police agent, David Atwell, a book written by a former motorcycle club member, Charles Zito, a police report from Sweden and a newspaper article from the Toronto Star.
[40] None of these sources have any circumstantial guarantees of trustworthiness. In the cases of David Atwell and Charles Zito, their information was not taken under oath or tested in court. Although, the Swedish case resulted in convictions, the court has been presented only with the police report and not the reasons for judgment in the case. There may be a significant difference between what was alleged in the police report and what the trial judge ultimately concluded had in fact occurred. The same can be said for the newspaper report.
[41] Therefore, Det. Empey will not be permitted to testify to anything in her report found in these sub-sections of Section F of her report. Additionally, Det. Empey will not be permitted to testify to anything that can only be sourced from the interview with David Atwell or Charles Zito’s book.
SUMMARY
[42] Det. Empey may be qualified as an expert to give evidence in relation to some portions of her report. Specifically, she can testify to sections A to E, section F with the exception of the sub-sections entitled ‘What occurs when a non-member wears the death head logo/tattoo’ and ‘The removal process of a death head tattoo/Hell’s Angel logo’, and section G.
[43] She cannot testify to sections H to M of her report, nor to the contents of her Supplementary Report.
R v Strybosch, 2021 ONSC 6109
[September 15, 2021] Stay of Proceedings – Crown Repudiation of Plea Agreement [A. J. Goodman J.]
AUTHOR’S NOTE: In Criminal practice deals are not made to be broken. The plea bargain system and efficient operation of the criminal justice system depends on people keeping their word. In the case of Crown prosecutors, repudiating a deal without a cause in the factual situation of the accused is particularly problematic. The Crown does not have clients that can instruct them to do anything. Prosecutors must remain at a respectful distance from victims of crime or else they risk crossing the line into becoming the tools of the complainant. Here that line was crossed and the resulting repudiation of a deal led to a stay of the charges instead.
Introduction
[1] The applicant is charged with sexual assault and sexual interference in relation to the complainant, C.T., contrary to the provisions of the Criminal Code, R.S.C. 1985 c. C-46.
[2] The applicant seeks a stay of proceedings pursuant to ss. 7, 11(d) and 24(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 (“Charter”) to address the alleged prosecutorial
Positions of the Parties:
[4] On June 26, 2021, immediately following an audio recorded call with the complainant, the Crown repudiated a resolution agreement with the Applicant. The Crown, in repudiating the resolution agreement, inappropriately suborned the public interest to the complainant’s personal agenda. The decision to repudiate the plea agreement was made despite the Crown’s acknowledgement that the case is “almost unwinnable”. The Crown, in an effort to buttress its decision to repudiate the plea agreement, referred and relied on “new information” when, by the admission of then-ACA, there was no new information.
[5] The applicant submits that the repudiation of the resolution agreement, based on all of the circumstances, is so unfair, oppressive, and tainted by improper motive that to allow the prosecution to proceed would tarnish the integrity of the judicial system. The abuse of process stems from the residual category, as outlined in the jurisprudence and can only merit the relief of a stay of proceedings.
Background
[9] The applicant is charged with sexual assault and sexual interference in relation to C.T. These charges relate to inappropriate sexual touching, which is alleged to have occurred on a single occasion sometime between January 1, 2000 and December 31, 2001.
[10] On November 14, 2018, C.T. provided a statement to Detective Rhab (“Rhab”) of the Waterloo Regional Police Service …
[11] According to C.T., the inappropriate comments were a trigger for the memory of the alleged sexual assault. In her initial police interview, the complainant stated that “everything kind of really came back when he had drank too much at the wedding and came up to me and he made a comment saying something like, ‘look at you now’. He made a comment about my breasts being like – like – it was just really disgusting…”.
[12] Following C.T.’s interview of November 14, 2018, the accused was charged with sexual assault and sexual interference. The accused retained counsel, Bernard Cummins, who had pre-trial discussions with the ACA.
[13] The Crown offered to resolve the matter with a peace bond. The peace bond was to have a term of three (3) years, during which time the accused was to have no contact with the complainant and was not be within 100 meters of any place that the accused knew the complainant to be...
[16] This matter was scheduled for resolution on July 8, 2020, at which time the accused was to enter into the peace bond and the charges were to be withdrawn at the request of the Crown.
[17] On June 25, 2020, the ACA spoke with C.T. in order to explain the Crown’s rationale for the resolution agreement. Unbeknownst to the ACA, the complainant made a surreptitious audio recording of their June 25 discussion.
[18] On or about June 25, 2020, the ACA contacted Mr. Cummins by email to advise that she had “new information” and that she wanted to discuss this case. On June 26, 2020, following a brief telephone call, the ACA emailed Mr. Cummins to confirm that the Crown intended to rescind the resolution agreement. … In particular, C.T. disclosed to me that the word ‘repressed’ in her statement to police, referred to her act of actively pushing a memory to the back of her mind: having it present the entire time. This is very different than my understanding of the word repressed. I understood her statement to mean that the memory in question was absent for a great many years and then returned in a foggy state.”
[19] Shortly before the start of the Preliminary Inquiry, on January 7, 2021, the ACA advised Mr. Cummins that the complainant had made an audio recording of her conversation with the ACA, and produced a heavily redacted transcript of such audio recording, which comprised only 11 pages. Despite various requests from Mr. Cummins, the Crown refused to provide an unredacted copy of the transcript of the conversation until February 9, 2021.
Legal principles:
[20] In R. v. Zarinchang 2010 ONCA 286, the court provided a summary of the law concerning abuse of process and judicial stays of proceedings at para. 57:
There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual’s trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process…
[22] Where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider. In R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, the Supreme Court of Canada held that the test for determining whether a stay of proceedings is warranted is the same for both categories and consists of factors or steps including (1) that there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) there must be no alternative remedy capable of redressing the prejudice. Where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court must balance the interests in favour of granting a stay against the interest that society has in having a trial on the merits.
[23] In R. v Scott, 2002 CanLII 44950 (ON CA), [2002] O.J. No. 2180 (Ont. C.A.) … Indeed, Scott reinforces the proposition that when other appropriate remedies exist, it would be proper to give precedence to them over the extreme remedy of a stay of proceedings.
[25] I observe that both Scott and R.(G.W.) fall into the first category of cases that may attract a stay; issues with the fairness of an individual’s trial resulting from state misconduct. In such cases, it may often be necessary to “wait and see” what the impact of the misconduct is on the accused’s rights and consider what other remedies may address the unfairness.
[26] In this case, the applicant places reliance on the residual category. When invoked, the first stage of the test is met when it is established that the state has engaged in conduct that is offensive to societal notions of fair play and decency, and that proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. At the second stage of the test, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward. Finally, the court must decide whether staying the proceedings or having a trial despite the impugned conduct better protects the integrity of the justice system.
Principles Applied to this Case:
[28] This inquiry necessarily demands balancing of such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits.
[29] The residual category was considered in R. v. Young (1984), 1984 CanLII 2145 (ON CA), 13 C.C.C. (3d) 1 (Ont. C.A.) and approved by the Supreme Court in R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128. At p. 31 of Young, Dubin J.A. wrote:
I am satisfied on the basis of the authorities that I have set forth above that there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings…
[30] Even under the “residual” category, where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process, prejudice, (while not determinative), is relevant to the analysis of the appropriate remedy for a violation of s. 7 of the Charter. Moreover, the Supreme Court opined that in most cases, the accused will need to demonstrate that he or she was prejudiced by the prosecutorial conduct in some significant way to successfully make out an abuse of process claim.
[31] The Crown has unequivocally repudiated the resolution agreement entered into following extensive discussions with Mr. Cummins. Ms. Forward recognizes that the repudiation of a resolution agreement should be rare; however, she submits that in this case it is essential. At para. 49 of R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, the Court quoted from the Martin Committee Report which noted:
Thus, it is plain that resolution agreements must not undermine the integrity of the court, or otherwise bring the administration of justice into disrepute. While the sanctity of agreements entered into is an important principle of the administration of justice, Crown counsel’s primary duty is to the integrity of the system. Accordingly, in the rare cases where these two values clash, the latter must prevail.
[32] The Crown’s decision to resile from a plea agreement and to continue the prosecution is a matter of prosecutorial discretion and is only subject to review for abuse of process: Nixon, at para. 31. The repudiation of a plea agreement is a rare and exceptional event: Nixon, at para. 63.
[35] Under the residual category of cases, prejudice to the accused’s interests, although relevant, is not determinative. Prejudice under the residual category, rather, is a broader concept relating to acts that undermine society’s expectations of fairness: Nixon, at para. 41.
[36] The applicant submits the present prosecution, given the manner in which the Crown has conducted itself, is tainted to such a degree that to allow it to proceed would undermine the integrity of the judicial process. Specifically, the Crown failed to comply with its public duty insofar as it permitted the complainant to unduly influence the exercise of its prosecutorial discretion and, ultimately, direct the prosecution. The Crown, in an effort to justify the repudiation of the plea agreement, relied on allegedly new information, when, by the ACA’s admission, no such new information existed. Further, the Crown’s improper exercise of discretion is compounded by its initial effort to withhold the complete transcript of the conversation between the complainant and the ACA. Specifically, the Crown, once it became aware that an audio recording of the conversation existed, produced only 11 of 92 pages of the transcript on the basis that the balance of the transcript was “not relevant”.
Prosecutorial misconduct undergirding the repudiation of the resolution agreement
[38] The Crown’s duties and responsibilities are public in nature. The Crown, as agents of the Attorney General, are tasked with fairly and impartially conducting cases in a manner which is consistent with the public interest.
[39] The Crown Prosecution Manual states that while the Crown owes special duties of candour and respect to all victims of alleged crime, they are not the victim’s lawyer. The Manual states that “[i]n circumstances where the fair and impartial exercise of prosecutorial discretion is at odds with the victim’s desires, the Crown should be sensitive but realistic and candid with the victim.”
[40] The applicant submits that the ACA, despite her assessment of the case as “almost unwinnable”, suborned public interest considerations to the personal wishes and desires of the complainant, thereby permitting the complainant to direct the prosecution in furtherance of her own agenda.
[41] The transcript of the call between the ACA and C.T. offers unique insight into the Crown’s assessment of the merits of the prosecution and, more specifically, its justification for entering into the resolution agreement. In the initial portion of their discussion, the ACA advised C.T. that this was not “a case that we can win”.
[43] C.T., when confronted with the Crown’s opinion, sought to buttress her complaint by denying that her memory of the sexually inappropriate touching was repressed in the traditional sense. The complainant insisted that it was not a “forgotten memory”. Rather, she indicated that it was “something that she kept in the back of her mind”. The ACA indicated that, even if the memory was not truly repressed, the case was not “especially strong”. C.T. herself, acknowledged that the case is “almost unwinnable”. The ACA, in turn, endorsed the complainant’s assessment of the merits of the case, indicating that the complainant’s low expectations of the prospect of a conviction were “realistic”, even taking the case at its best and accepting her explanation for her use of the term “repressed”.
[44] Again, my role is to review the Crown’s conduct with respect to the repudiation — not whether the Crown should have entered into the original resolution agreement. Furthermore, I am not to assess the reasonableness or correctness of the decision itself or Crown discretion. I examine the circumstances behind the decision for “proof of the requisite prosecutorial misconduct, improper motive or bad faith in the approach, circumstances, or ultimate decision to repudiate”. As the Supreme Court of Canada warned in Nixon, at para. 52:
…it is not the role of the court to look behind a prosecutor’s discretionary decision to see if it is justified or reasonable in itself. By straying into the arena and second-guessing the decision, the reviewing court effectively becomes a supervising prosecutor and risks losing its independence and impartiality.
[46] Taken at its best and accepting the complainant’s explanation for her use of the word “repressed” to describe her recollection of the alleged sexual touching, this case is, by the Crown’s admission “almost unwinnable” and, as such, it is justifiably resolvable on the terms of the resolution agreement. The complainant stated that even “if we couldn’t prove beyond a reasonable doubt to the judge, we might be able to give reasonable doubt to the family about his innocence”.
[49] Notwithstanding the merits of the case, the complainant indicated that she “wanted to go forward with the trial for the very, very simple reason of letting his family know – my side of it”. She stated that she wanted to “send a message” and that “the message is so much more important than the verdict”.
[50] I find that C.T., by her own admission, intimated a desire to use the public prosecution as a means of advancing her own agenda, namely, to confront the accused with the allegations in front of his family, irrespective of whether there was any prospect of proving such allegations beyond a reasonable doubt.
[52] The ACA, initially seeking to reconcile her public duty and the complainant’s goals, proposed that the complainant might give her account at a peace bond hearing. The complainant declined. She indicated that a trial would be “very official” and that his family “will be there”. The complainant insisted that she would “like to see a trial to show that we attempt to hold these people accountable so they know they can’t go about doing whatever they want all the time”. The ACA observed that the complainant wants to “be part of the driving force for change”. In response to the complainant’s insistence that the prosecution be continued, the ACA indicated that she would “try to satisfy some of what you want”.
[54] … In my view, the ACA is pulling from the weeds in order to bolster a position that is untenable. It is a matter of finding a solution and excuse in order to buttress the complainant’s desire to proceed and finding some rationale to rely upon.
[55] I am persuaded that C.T., in her ongoing effort to pressure the ACA into resiling from the resolution agreement, suggested that the Crown might rely on “new evidence” to justify continuing the prosecution. The ACA stated as follows: “I don’t know – it – is there – is there any new evidence or is the – the change, I mean, for me right now, the change is the difference between a repressed memory and a repressed memory…”
[56] The ACA, again, questioned whether there was, in fact, any new evidence, saying as follows: “…is there any new evidence? Is there anything new that the police did not know about in this case that has come out since then? She confirmed that there was, in fact, no new evidence: …But my question for you though is, is there anything that is like, you know – oh, you know, there’s new evidence as in there’s somebody who has something new or some objective piece… C.T.:Yeah. ACA: …of information that was not previously known. There’s – there’s nothing like that now, is that right? C.T: Umm, no. No, nothing like that umm, but…
[57] I agree with the applicant that there was no “new information”. The ACA acknowledged that there was no new information in her call with the complainant on June 25, 2020. The ACA was induced by the dogged and admittedly difficult and insistent complainant into repudiating the resolution agreement.
[59] While prejudice to the accused’s interests is not a necessary factor, the accused’s right to a fair trial is tainted by the fact that, in reliance on the resolution agreement, he completed counselling in respect of the inappropriate comments that he made to the complainant at a wedding in 2018.
[60] I agree with the applicant that the decision to repudiate the resolution agreement is tainted by the Crown’s conduct, specifically insofar as it suborned its public duty to the complainant’s personal agenda, such that it would be unfair or oppressive to allow the Crown to now proceed with the prosecution.
[61] I find that the Crown acted improperly with a view to advancing the complainant’s interests, over the public interest, in having the accused stand trial. The ACA, by her own admission, indicated that she would “try to satisfy some of what you [the complainant] want”. She did, in fact, repudiate the resolution agreement in order that the complainant might get what she wanted, namely that the accused stand trial. In doing, the Crown suborned the public interest to the wishes and desire of the complainant.
[62] Whether this case falls within the residual category of abuse of process canbe answered by this question: Was the Crown’s repudiation conduct so unfair and oppressive to the applicant, or so tainted by bad faith or improper motive, that to allow the Crown to now proceed would tarnish the integrity of the judicial system? The answer is yes.
Remedy
[65] A stay of proceedings will only be appropriate when: “(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice”: Regan, at para. 54.
[68] Under the “residual” category, “[a]t times, state conduct will be so troublesome that having a trial – even a fair one – will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency”: Babos, at para. 35. In these exceedingly rare circumstances, a stay should be entered in advance of the trial if the prejudice will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.
Conclusion:
[73] A stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice to the accused’s right to make full answer and defence cannot be remedied, or where irreparable prejudice would be caused on the integrity of the judicial system if the prosecution were continued. It would be appropriate to order a stay of proceedings where it is necessary to prevent the prejudice from being manifested, perpetuated, or aggravated through the conduct of the trial or its outcome, and there is no other remedy that could remove the prejudice.
[74] The residual category of an abuse of process that may attract a stay are those cases involving state conduct that undermines the integrity of the judicial process. The applicant has established that the Crown attorney improperly repudiated the agreement based on the direction or instance of the complainant. The prosecution has engaged in conduct that is offensive to societal notions of fair play and decency, and proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. When I turn to the balancing exercise, the interests of society warrant the discontinuation of the prosecution of this case.
[75] Therefore, the application is granted. The charges are hereby stayed.
R v Saleh-Mohamed, 2021 ONSC 4260
[August 10, 2021] Charter s.10(a) & (b): Change in Offence Investigated [Tranmer J.]
AUTHOR’S NOTE: Decisions on the basis of s.10(a) violations are infrequent. Most references are made back to the Supreme Court decision in Evans, but it is important to keep a number of these decisions handy as these issues arise frequently at the roadside. In this case, an arrest for Driving while Prohibited took a sudden turn into an impaired investigation while the officer said nothing about that to the accused. Instead he asked questions that were used to ultimately incriminate him on the impaired offence. Justice Tranmer concluded this was a violation. In these circumstances a soft warning (even if the officer didn’t know the Charter rights by heart) was preferable to proceeding forward despite that issue.
Overview
[1] The Crown appeals the acquittal of Mr. Saleh-Mohamed of the charges of operating a motor vehicle with his blood alcohol level in excess of 80 mg of alcohol in 100 millilitres of blood and fail to comply with a recognizance by having alcohol in his system.
[2] He was convicted of the charge of driving while prohibited.
The Uncontested Facts
[6] The only witness to testify at the trial was police officer Boucher who testified that he had 28 years experience with the OPP, mostly as a patrol officer, and that he had done hundreds of impaired driving investigations.
[7] On the date in question, he was patrolling in a fully marked police vehicle when he stopped at an intersection for a red light.
[8] He noticed that the validation sticker on the car stop directly in front of him had expired. He determined that the registered owner of the vehicle, the respondent, had had his driver’s license suspended for medical reasons.
[9] He signalled the driver of that vehicle to pullover. He confirmed that the driver was the registered owner, namely the respondent.
[10] The officer approached the driver’s side of the vehicle. He asked the driver if he was the registered owner and the respondent confirmed that he was.
[11] The officer then informed the respondent that the validation sticker was expired and that his driver’s license had been suspended.
[12] At 7:25 PM, the officer arrested the respondent for driving when his driver’s license was suspended, an HTA offence, and for the Criminal Code offence of driving while prohibited.
[13] He asked the respondent to exit his vehicle and when he did, the officer handcuffed the respondent to the front, as he was being cooperative.
[14] The officer noted that as he talked to the respondent, the latter turned his face away from the officer. The officer found this odd and it seemed to him that the respondent did not want him to smell his breath. However, he did not detect any alcohol when they were still at the respondent’s vehicle.
[15] The officer instructed the respondent to walk to the police vehicle. As he did so, the officer noticed that it appeared that his balance was off and he was having difficulty walking straight. The officer had noticed at the start of their interaction that the respondent’s speech was slurred. The officer asked the respondent when they got to the police car about his balance and was told that he had had a stroke in the past. The officer had noticed a cane in the car beside the driver seat.
[18] Officer Boucher agreed that he never told the respondent that he was doing an investigation into impaired driving.
[21] The officer testified that he understood that he was supposed to provide an arrested person with the rights to counsel without delay. He testified that he had left his notebook inside his police car. The notebook contained a printed card that had the formal rights to counsel wording on it. He retrieved the notebook approximately 4 ½ minutes after he had arrested the respondent for driving while disqualified.
[22] At that point, while they were beside the passenger side of the police vehicle, he provided the respondent with his rights to counsel.
[25] The officer testified that at no point was there a security issue that would have required him to delay providing the rights to counsel to the respondent.
[27] In response to his rights to counsel, the respondent stated that he wished to speak to his counsel. The officer put him in touch with his chosen lawyer using a cell phone at the roadside.
The Section 10(a) Issue
Facts
[28] The trial judge found that the officer did not inform the respondent of the change of investigative focus from driving while prohibited to impaired driving.
[29] He found that the breach of the respondent section 10(a) rights crystallized when the officer became suspicious after observing that the defendant was turning his face away, displayed slurred speech and poor balance and was having difficulty walking.
[31] The trial judge found that it was clear that the officer arrested the respondent for the Criminal Code offence of driving prohibited and then very soon thereafter embarked upon a criminal investigation into whether the respondent had been driving after consuming alcohol without the officer telling the respondent that he was doing so.
[32] The evidence of the officer was that it was a surprise to him that the investigation took that change in focus. Therefore, it would be reasonable to assume that the respondent would be unaware of that change in focus.
Analysis
[37] I find that the finding by the trial judge that the respondent’s right was breached is correct in law. The trial judge instructed himself on the case law.
[38] The trial judge did not find that the respondent knew or could be reasonably supposed to understand that the focus of the investigation had changed. The evidence at trial was contrary to such a finding. The uncontradicted evidence is that the officer’s suspicion about impaired driving arose before he asked about alcohol consumption and before he smelled the odour of alcohol.
[40] The officer asked the respondent an incriminating question, for grounds purposes, concerning alcohol consumption before giving the respondent’s rights to counsel on the driving while prohibited investigation which resulted in arrest and handcuffing some 4 ½ minutes earlier.
[41] In the circumstances of this case, I find that the trial judge did not err in law in respect to his decision on this issue.
The Section 10(b) Issue
Facts
[43] The trial judge found, “to state the obvious, there was nothing stopping the constable from providing the defendant with an informal version of the rights to counsel immediately at the time of arrest and then follow up once he had retrieved a printed card with the formal reading”.
[44] The trial judge found that he did not hold off questioning the respondent until after he had read the formal rights from the card in the notebook. The trial judge found that there was no reason why he had to ask the questions before providing the right to counsel. “He could have waited; however, he did not, and as a result, Mr. Saleh-Mohamed ended up answering the officer’s questions and incriminating himself.”
Analysis
[51] It is agreed that in law for the purposes of this Charter right “without delay” means “immediately”.
[52] I agree with the trial judge that the 4 ½ minutes delay was unreasonable on the evidence and a clear breach of this right. The finding by the trial judge that there was nothing stopping the officer from providing even a soft caution is supported by the evidence.
[53] The finding by the trial judge that there was no reason why the officer had to ask the questions before providing the rights, “He could’ve waited, he did not.”, is not challenged by the Crown.
[54] In the circumstances of this case, I find that the trial judge did not err in law in respect of his decision on this issue.
Decision
[56] For these reasons, the Crown appeal is dismissed.
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