[December 6, 2022] Need for Jury Charge where Prior Bad Character Evidence is Led [Reasons by Copeland J.A. with K. Feldman and B. Zarnett JJ.A. concurring]
AUTHOR’S NOTE: Bad character evidence, "once dropped like poison in the juror’s ear, 'swift as quicksilver it courses through the natural gates and alleys of the body' (R v Handy, 2002 SCC 56 at para 40). Prejudice in the form of propensity reasoning by triers of fact is one of the great challenges of criminal defence practice. It is sometimes very difficult to completely sanitize the evidence presented of all bad character information about an accused. Here, the defence theory was that the complainant was trying to get the accused back for some of the bad things he did in the past. Having run this theory in the past, I can sympathize. It is a double edged sword. However, there is no need to stop the judge from instructing about improper uses of this evidence. In fact, this is necessary even where the defence is the cause of this evidence coming before the jury.
A smaller issue arose in this case as well. Crown counsel tried to buttress the evidence of the complainant by pointing out, through her testimony, that she came forward without the need for a subpoena. This is not a permissible tactic.
[1] The appellant appeals his conviction, following a trial by jury, on one count of sexual assault, contrary to
s. 271 of the
Criminal Code,
R.S.C. 1985, c. C-46.
Background
[2] The appellant and the complainant lived together in a relationship for approximately three years, and have one daughter. Over time, the relationship grew distant. The complainant alleged that several days after she informed the appellant of another relationship she had pursued, he sexually assaulted her in his bedroom.
[4] The only live issue at trial was whether the incident of sexual contact that formed the basis of the charge happened. The appellant did not testify. The defence position advanced through cross-examination and in closing submissions was that the sexual contact the complainant alleged did not happen.
Grounds of appeal
[6] As I explain below, I would allow the appeal and order a new trial because of the trial judge’s failure to give the jury a limiting instruction regarding the use of significant evidence tendered at trial of the appellant’s prior discreditable conduct. With respect to the second ground of appeal, I agree with the appellant that one aspect of Crown counsel’s examination-in-chief of the complainant constituted oath-helping...
(1) The trial judge erred in failing to provide a limiting instruction on the use of evidence of the appellant’s prior discreditable conduct
[7] The appellant argues that the trial judge erred in law in failing to provide a limiting instruction to the jury on the permissible use of evidence of bad character and prior discreditable conduct of the appellant. The appellant accepts that “most, if not all” of this evidence was admissible, and only objects to the failure of the trial judge to give a limiting instruction.
[9] There was significant evidence led at trial painting the appellant as an unlikeable and abusive man, who was controlling of and demeaning towards the complainant. This evidence was led in the testimony of the complainant and both of her parents. The discreditable conduct evidence about the appellant included:
- that the complainant was afraid of the appellant and scared to be in the same room as him;
- that the appellant was verbally abusive towards the complainant and demeaning towards her;
- that the appellant threatened the complainant on the day she went to police (approximately five months after the alleged sexual assault);
- the appellant was described as emotionally abusive, controlling, aggressive, and degrading towards the complainant;
- that when the complainant became pregnant with their daughter, he wanted her to get an abortion. When she refused to do so, within days, he referred to the pregnancy as “entrapment”;
- that the appellant had the complainant arrange an abortion when she became pregnant a second time;
- that the appellant showed no interest in their daughter after the complainant went to police;
- that at one point in their relationship, the appellant would not give the complainant money, even for groceries, and he later did not live up to his post-break-up support obligations;
- that the complainant and her parents were petrified that the appellant would abduct his and the complainant’s daughter and take her to Mexico.
[10] Most of this evidence was led by Crown counsel during the examination-in- chief of the complainant, and to a lesser degree during the examination-in-chief of her parents. However, the defence pursued the evidence in cross-examination.
[11] No motion was brought by Crown counsel regarding the admissibility of the discreditable conduct evidence. There is no discussion on the record indicating that the parties had reached an agreement about admissibility of this evidence. As prior discreditable conduct evidence is presumptively inadmissible, there should have been a discussion about the admissibility of this evidence on the record, or, if admissibility was contested, a voir dire: see
R. v. Z.W.C.,
2021 ONCA 116, 155 O.R. (3d) 129, at paras.
93-114, 121-132;
R. v. J.H., 2020 ONCA 165, at paras.
52-59.
[12] I flag the issue of the absence of a hearing or any discussion on the record about the admissibility of this evidence not to suggest the evidence would have been inadmissible had a proper admissibility inquiry been conducted. The appellant does not argue that the evidence was inadmissible. He concedes that most, if not all, of it was admissible as part of the narrative and in relation to the defence theory of the complainant’s motive to fabricate. But the admissibility inquiry (or an on-the-record waiver or agreement as to admissibility) is important because it focuses the parties and the trial judge on the probative value of the evidence, and the risk of prejudice. Both of these aspects inform the instructions to the jury on permitted and prohibited uses of prior discreditable conduct evidence which is admitted.
[13] In this case, the trial judge gave no instruction to the jury on the prior discreditable conduct evidence. He did not instruct either on what were permissible uses for the evidence of the appellant’s prior discreditable conduct, or prohibited uses of this evidence....
[14] The question on appeal is whether the failure to give the jury any instructions on the use of this evidence – in particular, the failure to give a limiting instruction explaining prohibited uses of the evidence – is a reversible error:
R. v. M.T., 2012 ONCA 511, 289 C.C.C. (3d) 115, at paras.
84-85;
Z.W.C., at para.
109.
[15] Whether the failure to give a limiting instruction regarding propensity use of prior discreditable conduct evidence amounts to reversible error depends on a variety of circumstances, which must be considered in the context of the evidence and issues raised in a particular case. Factors that may be relevant include: (i) the nature and extent of the prior discreditable conduct evidence at issue; (ii) the issue(s) at trial to which the discreditable conduct evidence was properly relevant; (iii) the relative gravity of the prior discreditable conduct in relation to the misconduct charged; (iv) the likelihood that such an instruction would confuse the jury or unnecessarily draw attention to the discreditable conduct; and (v) other factors which bear on the risk that such evidence would be used improperly by the jury:
R. v. Beausoleil, 2011 ONCA 471, 277 C.C.C. (3d) 50, at para.
20;
R. v. M.P.,
2018 ONCA 608, 363 C.C.C. (3d) 61, at para.
100;
M.T., at paras. 87-90.
[16] Considering all of the circumstances in this case, I conclude that the failure of the trial judge to give the jury a limiting instruction on the use of the prior discreditable conduct evidence constitutes reversible error which requires a new trial.
[17] The prior discreditable conduct evidence led in this case was extensive. It was led through the testimony of all of the Crown witnesses – the complainant and both her parents. It permeated the trial. I accept that the evidence was properly admissible as narrative, to assist in understanding the relationship between the appellant and the complainant, and in relation to the defence theory of the complainant’s motive to fabricate. However, it was not admissible for propensity use. And in my view, the dangers of the jury engaging in propensity reasoning were significant.
[18] In the absence of a limiting instruction, there was significant danger of prejudice as described in Handy, in particular, of moral prejudice: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31-40, 139; Z.W.C., at paras. 102-104. This was particularly so given the factual circumstances alleged by the complainant about the sexual assault. The complainant’s evidence about the alleged sexual assault suggested that it was a punishment for her other relationship. The prior discreditable conduct evidence painted the appellant as a person who was controlling, demeaning, and vindictive towards the complainant. There was a significant risk in this case, in the absence of a limiting instruction, that the jury would naturally engage in propensity reasoning – concluding that as a controlling, demeaning, vindictive person, the appellant was the type of person who would commit the offence the complainant alleged.
[21] ...The Crown’s argument that the prior discreditable conduct evidence was less serious than the offence charged misses the point in relation to the nature of the prejudice in the particular circumstances of this case. The reason the prior discreditable conduct evidence was prejudicial is that it could have been seen by the jury as of a similar nature as the alleged sexual assault – suggesting a continuum from the appellant’s prior discreditable behaviour to him being the type of person who would commit the sexual assault with which he was charged. Without a specific instruction from the trial judge telling the jury that the evidence could not be used to reason that based on his history, the appellant was the type of person who would commit the offence alleged by the complainant, the jury would not have understood that this line of reasoning was impermissible.
[25] The significance of the fact that trial counsel (not Mr. Lockyer) neither asked for a limiting instruction nor objected to the trial judge’s failure to give one must also be considered. Trial counsel made use of the appellant’s prior discreditable conduct towards the complainant to argue that it gave the complainant a motive to fabricate the sexual assault allegation against the appellant. Trial counsel cross- examined the complainant about aspects of the discreditable conduct evidence. In closing submissions he argued that the complainant’s evidence about the appellant being “emotionally distant, aloof, condescending, and controlling” and making her get an abortion showed an animus on the part of the complainant against the appellant that provided a motive to make a false allegation against him.
[26] But this use of the evidence by the defence does not explain the failure to request a specific limiting instruction to prevent misuse by the jury of the evidence.
[27] I can see no tactical reason for trial counsel not to request a limiting instruction. There was a tactical reason not to object to the admissibility of the evidence, because of its relevance to the defence theory of the complainant’s motive to fabricate. But there was no tactical reason not to request a limiting instruction to make clear to the jury that propensity reasoning was impermissible. Indeed, when counsel for the Crown was asked about this issue during oral submissions, he was unable to point to any apparent tactical benefit to the appellant in not seeking a limiting instruction on this evidence at trial. As I have explained above, there was a significant risk in the circumstances of this case that the jury would engage in propensity reasoning in the absence of a limiting instruction.
[30] In sum, in the circumstances of this case, the failure of the trial judge to give a specific limiting instruction on the use of the evidence about the appellant’s discreditable conduct constitutes reversible error and requires that a new trial be ordered.
(2) Crown counsel at trial engaged in impermissible oath-helping
[31] The appellant argues that two portions of the Crown’s examination-in-chief of the complainant constituted impermissible oath-helping.
[32] The two passages at issue were at the start and the end of the examination- in-chief of the complainant.
[33] The first impugned passage occurred right at the start of the examination- in-chief of the complainant, after Crown counsel (not Mr. de Montigny) had asked her age and what she did for a living:
Q. Can you tell us how you feel about being here today?
A. I’m very anxious about being here and very nervous.
Q. Can you tell us why you’re here today?
A. I’m here because when it all comes down to it, I honestly believe that the accused should be held accountable for his actions.
[34] At that point, the trial judge interjected. In the presence of the jury, he said that the purpose of a witness giving evidence is to testify about what they perceived and experienced. He stated that a witness, and in particular, the complainant, should not be expressing an opinion on what disposition should be made. After that interjection by the trial judge, Crown counsel proceeded to elicit the complainant’s evidence about the substance of the allegation before the court.
[35] The second passage was the final two questions asked by Crown counsel in the examination-in-chief:
Q. I think this is my question for you, [complainant’s name]: Were you ever given the opportunity not to testify in this case?
A. Yes, I was.
Q. Okay. And have you chosen to testify today of your own free will?
A. I have.
[37] In my view, the first impugned passage of the examination-in-chief of the complainant would not be objectionable, if it stood alone. The questions posed by Crown counsel appear to be intended to put the complainant at ease, and then to direct her to the subject matter of the allegation, along the lines of, “what brings you here today?” The complainant responded to the second question with inadmissible evidence. But the trial judge immediately intervened and clearly said that the response was irrelevant.
[38] However, the second passage, at the end of the examination-in-chief, was clearly intended to elicit that the complainant had been given the option not to attend and testify at the trial, and that, having been given that option, she chose “of [her] own free will” to attend and testify. The questions are notable for their placement at the end of the examination-in-chief, as it suggests Crown counsel intended them to give a strong finish to the examination.
[42] In addition, the evidence elicited by Crown counsel at the end of the cross- examination sought to rely on the inference that the complainant was more credible because she exposed herself to the “unpleasant rigours of a criminal trial.” The difficulty with this type of reasoning is that using the fact that a complainant pursued a complaint to bolster their credibility is inconsistent with the presumption of innocence:
R. v. J.C.,
2021 ONCA 131, 401 C.C.C. (3d) 433, at paras.
87-89.
[45] As a new trial is required due to the failure to provide a limiting instruction on evidence of prior discreditable conduct, it is not necessary to decide if a new trial would have been required on the oath-helping ground standing alone.
[70] I would allow the appeal, set aside the conviction, and order a new trial.
[December 7, 2022] The Conduct of the Defence is not an Aggravating Factor on Sentence [Majority Reasons by Stromberg-Stein J.A. with Hunter J.A. concurring and Marchand J.A. concurring, but not on this issue]
AUTHOR’S NOTE: The pendulum on the use of rape myths has swung in the direction of attempted weaponization by the Crown. Not only are certain beliefs about sexuality rightfully forbidden from argument before a jury, but even the hint of such thinking is used by the Crown to attempt to shut down legitimate avenues of inquiry. Only the diligence of judges keeps the zealousness of stamping out rape myth thinking from running amok. Here, the Crown attempted to turn a comment made by the accused out of court to a witness into an allegation at sentencing that he was endorsing rape myths. This was used in an attempt to aggravate his sentence despite the fact that he only ran legitimate consent-based defences at trial. It worked at trial and caused the judge to increase the sentence. However, on appeal, the Court reduced the sentence noting that questioning by the Crown to determine the accused's personal theory for why the complainant would lie was impermissible questioning in the first place. Cross examining to reveal a conversation with someone that included rape myth thinking could not be used to aggravate the sentence on the basis of the accused attitude towards the offence (he was presumed innocent at trial).
[1] On June 19, 2018, the trial judge convicted Mark Anthony Smith of one count of sexual assault. On September 28, 2018, the judge sentenced Mr. Smith to 31 months’ jail.
[2] Mr. Smith was 38 years old at the time of sentencing. He has lived in Canada for more than 25 years but is not a Canadian citizen. As a result of his conviction, he became inadmissible to Canada under s. 36 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA] on grounds of “serious criminality”. As a result of the length of his sentence, he lost his right to appeal a removal order against him under s. 64 of the IRPA.
[3] Mr. Smith’s conviction was overturned by a majority of this Court but restored by the Supreme Court of Canada: 2021 SCC 16. He now seeks leave to appeal his sentence. He submits the judge made several errors in principle that impacted his sentence and imposed a demonstrably unfit sentence. In particular, he submits the judge:
- erred in principle by relying on an element of his defence as an aggravating factor;
[7] ...I will summarize the circumstances and proceedings at the sentencing hearing only so far as is necessary to address Mr. Smith’s grounds of appeal.
[9] The complainant went to Mr. Smith’s bedroom. She got into bed on top of the covers with her clothes on. She and Mr. Smith kissed consensually then went to sleep. The complainant later woke up to Mr. Smith pulling off her shorts and tights. She tried to pull them up and said “no” in an audible voice. Mr. Smith then turned her over onto her stomach, pinned her down and, over her continued audible objections, forced his penis into her vagina from behind. He was not wearing a condom.
[12] About five years later, the complainant saw the name “Mark Anthony Smith” on a board at a rape crisis centre where she worked. Another woman had apparently alleged that Mr. Smith had assaulted her. The complainant decided to report the 2010 incident to the police.
[14] At the sentencing hearing, the Crown identified features of Mr. Smith’s sexual assault, his criminal record and his conduct subsequent to the assault as aggravating factors and filed a victim impact statement detailing the consequences of the assault on the complainant. The Crown submitted there were no mitigating factors. The Crown identified the range of sentence to be two to six years’ imprisonment and sought a custodial sentence of two and a half to three years.
The Judge’s Reasons for Sentence
[21] Finally, in determining the appropriate sentence, the judge noted that Mr. Smith had been convicted of “the grave, violent offence of sexual assault including intercourse.” With respect to aggravating and mitigating factors, she held:
[33] ...
Considering the aggravating circumstances of Mr. Smith ignoring K.S.’s pleas, holding her down with his hands and his body weight so that she could not escape, not using a condom, engaging in the myth that women cry rape for revenge, and the significant emotional and physical harm that this crime has on women generally and [the complainant] in particular,
there are no mitigating factors.
[Emphasis added.]
[23] The judge placed weight on Mr. Smith’s attitude towards his offence. In the judge’s view, Mr. Smith did not think his offence was grave and took a “nonchalant and dismissive” attitude throughout. The judge noted Mr. Smith’s request at the sentencing hearing that she show him compassion. The judge replied:
[36] ... I will do so, as that is my role as a sentencing judge. However, I must say that [Mr. Smith] has shown no compassion for [the complainant], not at the time the sexual assault took place, not when he was charged with it and discussed it with his friend, and not at any time since.
Did the judge err in principle by relying on an element of Mr. Smith’s defence as an aggravating factor?
[30] At trial, the Crown led evidence of a conversation between Mr. Smith and a friend that took place after the offence. In cross-examination, Mr. Smith confirmed the conversation and said he told his friend that the complainant claimed he sexually assaulted her because she was “pissed off” that he had been unable to complete sexual intercourse with her and had ignored her in the morning. As noted above, the judge rejected Mr. Smith’s “revenge theory” as illogical.
[31] In her reasons for sentence, the judge found Mr. Smith to have “engag[ed] in the myth that women cry rape for revenge” and considered this to be an aggravating factor. Relying on R. v. Kozy, [1990] O.J. No. 1586, 1990 CanLII 2625, R. v. Mansaray, 2021 ONCA 894 and R. v. Vickers, [1998] B.C.J. No. 549 (C.A.), 1998 CanLII 14982, Mr. Smith submits that this constituted an error in principle because “the conduct of the defence cannot be treated as an aggravating factor.”
[32] I agree that Mr. Smith was entitled to defend the sexual assault allegation without fear that doing so would be held against him if convicted. He advanced a defence of consent. That defence was rejected. Plainly, the judge did not treat Mr. Smith’s rejected defence of consent as an aggravating factor.
[34] The judge felt Mr. Smith went beyond his defence of consent and ascribed a motivation to the complainant that was consistent with what has been described as a rape myth, namely that women are fickle, full of spite and seek revenge against past lovers by claiming rape:
R. v. Seaboyer, [1991] 2 S.C.R. 577,
1991 CanLII 76 at 653 per L’Heureux-Dubé J. (dissenting in part);
R. v. A.G.,
2000 SCC 17 at para.
3;
R. v. Goldfinch,
2019 SCC 38 at para.
33.
[36] Accordingly, an offender’s attitude towards their offence can inform the assessment of a fit sentence by shedding light on statutory sentencing objectives such as protection of the public, specific deterrence and rehabilitation: see
R. v. Seyed-Fatemi,
2006 BCCA 310 at para.
14;
R. v. Purdy,
2012 BCCA 272 at para.
21;
R. v. J.C.S.,
2017 BCCA 87 at para.
76; and
R. v. D.N.,
2018 BCCA 190 at para.
24.
[37] Section 721(3)(a) of the Code underscores the relevance of the offender’s attitude at sentencing. Under that section, probation officers preparing pre-sentence reports are required, unless otherwise specified by the court, to report on a number of matters, including “the offender’s... attitude.”
[38] As I see it, the question on appeal is whether the judge impermissibly held an element of Mr. Smith’s defence against him at the sentencing stage or permissibly considered Mr. Smith’s attitude towards the offence as relevant to the sentencing exercise. In my view, it was the latter.
Reasons for Judgment of the Honourable Madam Justice Stromberg-Stein:
[68] I have had the opportunity to read my colleague’s draft reasons for sentence. While I agree with the result, I respectfully disagree with his reasoning under the heading “Did the judge err in principle by relying on an element of Mr. Smith’s defence as an aggravating factor?”: at paras. 30–45. In my view, the judge erred in principle in characterizing Mr. Smith’s conduct of his defence as an aggravating factor in sentencing, and this error impacted the fitness of the sentence.
[69] The issue is not whether the judge was entitled to consider Mr. Smith’s attitude toward his offence on sentencing. Clearly a sentencing judge can do so, and this is statutorily enshrined in s. 721(3)(a) of the Criminal Code. The issue here is that the judge considered, as an aggravating factor on sentencing, what she described as Mr. Smith’s attitude in perpetuating a rape myth in the conduct of his defence. In my view, the judge was wrong in law, and there was also no support for her conclusion on the evidence.
[72] However, Mr. Smith did not postulate a “revenge theory” at trial. Rather, this is how Crown counsel characterized Mr. Smith’s defence in closing submissions. Nor did he postulate a rape myth. The evidence the judge purported to rely on essentially came from Mr. Smith’s roommate, Nick Ismirnioglou, and Mr. Smith’s cross-examination, where Mr. Smith was asked to speculate why he thought the complainant would say the sexual intercourse was non-consensual. Mr. Smith’s responses were directed to the particular complainant, in the particular circumstances, and do not lend support that Mr. Smith’s conduct of his defence perpetuated a rape myth.
[74] It was the Crown who called Mr. Smith’s former roommate, Mr. Ismirnioglou, to testify about confronting Mr. Smith about a rumor he had engaged in non-consensual sexual relations with the complainant the week before. Mr. Ismirnioglou’s evidence was vague and uncertain about when the conversation occurred and how Mr. Smith responded. At first Mr. Ismirnioglou said Mr. Smith seemed to think the complainant was angry that she got too drunk or high and hooked up with him. After further prodding by the Crown, Mr. Ismirnioglou suggested Mr. Smith said something to the effect she was just trying to save face for having hooked up with someone she wasn’t too proud of hooking up with. The Crown objected, successfully, to defence counsel cross-examining Mr. Ismirnioglou about his police statement wherein he expressed the basis for his belief for why he thought the complainant would feel that way, which was because Mr. Smith was losing his looks.
[75] The Crown used Mr. Ismirnioglou’s evidence to launch into a cross-examination of Mr. Smith. In the course of that cross-examination, the Crown purported to impugn Mr. Smith’s credibility by extracting two explanations, instead of the one Mr. Ismirnioglou said he had offered, for why the complainant might have a motive to fabricate an allegation of non-consensual sexual intercourse. Mr. Smith said he told Mr. Ismirnioglou the complainant was bitter he didn’t finish, and she seemed grumpy afterwards. The other thing he recalled telling Mr. Ismirnioglou was she was “pissed off” because he ignored her in the morning. The Crown, in essence, was asking Mr. Smith to speculate why the complainant would be lying about not consenting to sexual intercourse. The Crown later labelled Mr. Smith’s explanations “rape myths”. There was no objection to the admissibility of this evidence, and no discussion or inquiry about the relevance, probative value, or purpose of the evidence and whether its admissibility was outweighed by its prejudicial effect.
[76] Mr. Ismirnioglou’s evidence was led at the behest of the Crown, seemingly without objection. The evidence was not logically probative of any matter save, perhaps, Mr. Smith’s credibility. My colleague is critical that Mr. Smith failed to object to Mr. Ismirnioglou’s evidence. Perhaps the best explanation may be that he was not well served by his trial counsel. However, the judge, as the ultimate gatekeeper, was tasked with ensuring only admissible evidence formed part of the evidentiary record leading to conviction. Whether Mr. Smith objected or not, given the issues at trial, Mr. Ismirnioglou’s evidence lacked probative value and had substantial prejudicial effect, as can be seen from the eventual misuse of otherwise irrelevant evidence.
[77] Crown counsel stated, in submissions, that he wanted to give credit to defence counsel for trying to be very careful in ensuring Mr. Smith’s defence was not rape myth and was relevant to credibility. The Crown identified two rape myths in closing submissions. The first was that a woman cannot be raped if she wants to prevent it, but Crown counsel pointed out defence counsel did not go so far as to say that and referred to this as merely a “myth creep”. The second myth postulated by Crown counsel was characterized as women make up stories of rape out of spite or revenge, and it was suggested that was present because Mr. Smith’s immediate reaction, upon being confronted by Mr. Ismirnioglou, was, “She’s just upset things didn’t go well, so she fabricated an account.” Crown counsel underscored “certainly it seems like
at that time at least Mr. Smith
may have given some credence to that idea.” (Emphasis added.)
[78] It was the Crown, in submissions on conviction, that planted the seed that led the judge to label one of the pillars of Mr. Smith’s defence as “revenge theory”. And it was the Crown, in submissions on sentencing, that translated Mr. Ismirnioglou’s evidence and Mr. Smith’s cross-examination into the wording adopted by the judge in her reasons for sentence: “Mr. Smith perpetuated a rape myth by explaining to his friend [Mr. Ismirnioglou], who confronted him about the rape, that
woman cry rape because of bad sex”: at para. 25 (emphasis added). Later in the analysis the judge stated Mr. Smith was “engaging in the myth that
women cry rape for revenge”: at para. 33 (emphasis added).
[79] With respect, Mr. Ismirnioglou never used these words. Nor did Mr. Smith. Mr. Smith never used these words either to Mr. Ismirnioglou or in his testimony. It was the Crown that suggested he was perpetuating rape myths, and it was the Crown that later described this as an aggravating factor on sentencing.
[81] It is my opinion that Mr. Smith was not perpetuating a rape myth in an effort to prejudice the fact-finding process and undermine the integrity of the trial process in reaching a proper verdict. In defending himself on serious allegations of sexual assault, he was responding to an improper line of questioning by Crown counsel.
[82] All of this was unfair to Mr. Smith. His expected defences at trial, described in an earlier ruling with respect to a severance application, were consent and credibility: 2018 BCSC 80. The principles of fundamental justice underlying a criminal trial permit him to present evidence relevant to his defence. Mr. Smith was not foreclosed from defending himself by attacking the complainant’s credibility on the basis she was biased or had a motive to fabricate evidence of lack of consent. He testified he had consensual sexual intercourse with the complainant. She testified she did not consent. The Crown asked him to speculate why he thought the complainant was telling Mr. Ismirnioglou she did not consent. That was akin to asking Mr. Smith to comment on why the complainant would be lying. That was an improper line of questioning and should not, and cannot, be used against Mr. Smith in the sentencing process.
[83] The law is clear on sentencing that a lack of remorse is not an aggravating factor, while evidence of remorse can be a mitigating factor. A sentencing judge cannot consider the accused person’s attitude from the manner they conduct their defence as an aggravating factor on sentencing. The rationale for this principle, as stated in
R. v. Vickers, (1998),
105 B.C.A.C. 42, 1998 CanLii 14982, is that doing so would infringe the accused’s right to not be punished for a crime for which they have not been convicted. Notwithstanding the nature of the offence, the principles of fundamental justice remain intact and have yet to be displaced. Mr. Smith was presumed innocent. He was entitled to plead not guilty. He had a fundamental right to a fair trial, including the right to make full answer and defence. He was entitled to defend himself, and not have the manner in which he conducted his defence held against him as an aggravating factor on sentencing.
[84] In this case, the judge drew an adverse inference regarding Mr. Smith’s lack of remorse from the manner in which he conducted his trial. Care and caution must be taken by a judge not to import the manner of testifying into an aggravating factor on sentencing. There was nothing to indicate the attitude of Mr. Smith to the offence post-conviction. There was no pre-sentence report, which could have addressed the attitude of the offender. The only words Mr. Smith spoke at the sentencing hearing were to ask the judge for compassion. In response, the judge indicated she would show him compassion, as she noted he had not shown compassion to the complainant at the time of the sexual assault, when he was charged with the offence, when he discussed it with his friend, nor any time since: at para. 36. The judge said Mr. Smith took a “nonchalant and dismissive” attitude throughout.
[85] My colleague says Mr. Smith’s attitude towards his offence, including the motive he ascribed to the complainant in conversation with Mr. Ismirnioglou, and at trial, along with his nonchalance and dismissiveness, suggests he poses an ongoing risk, engages the need for specific deterrence, and raises concerns about his prospects for rehabilitation. I do not agree.
[86] It is my view the judge was not entitled to make findings with respect to Mr. Smith’s attitude toward the offence from the conduct of his defence. The judge erred in law and in principle, and this materially impacted the sentence she imposed. In my view, the judge erred in considering Mr. Smith’s attitude towards the offence, derived from his defence at trial that she described as revenge theory and perpetuation of a rape myth, as an aggravating factor. This error impacted the sentence she imposed. I do not agree with my colleague’s inclusion at para. 62 of (4) “the relevance of Mr. Smith’s attitude toward his offence”, as a relevant factor to be considered in determining a fit sentence, as this is unsupported on the evidence in this case.
[87] I agree with my colleague that the fitness of the sentence must be revisited and the sentence should be reduced to two years. Mr. Smith has served his sentence, so that will be reflected as time served.
“The Honourable Madam Justice Stromberg-Stein”
I agree:
“The Honourable Mr. Justice Hunter”
[Decemebr 6, 2022] Charter s.9 - Detaining Found-ins During a Search Warrant Execution [Judge J.D. Bascom]
AUTHOR’S NOTE: When the TAC team arrives, often everyone gets detained and/or arrested. Their singular focus is controlling the scene at all cost. They do not do a great job differentiating between occupants that are dangerous and those that are not. They err on the side of protecting themselves and detaining everyone. Here, the Court defended the Charter right to be free from arbitrary detention by insisting that police need individualized grounds to detain a person and search them.
Voir Dire Decision Section 8, 9 and 10(b) of the Charter
[1] Ms. Rondilla-Curley is charged with a number of offences with regard to possession of a firearm. The Defence filed a detailed notice and argument concerning allegations of violations of Ms. Rondilla-Curley’s constitutional rights. Crown in turn filed a detailed response to the applicant’s
Charter Notice and argument.
[5] Briefly, members of the Calgary Police Service TAC Team received information from other officers that Mr. Tag El Din was arrestable for assault causing bodily harm and breaches of his release conditions. The TAC Team, a specialized section of the Calgary Police Service developed a plan to arrest Mr. Tag El Din who was viewed as a high risk offender, known to carry firearms. Ms. Rondilla-Curley was in the company of Mr. Tag El Din for a time prior to his arrest.
[6] Constable Emberly, a 10 year member of the Tactical Team testified that he and the team were tasked with the arrest of Mr. Tag El Din. He testifies that the mission statement of the tactical unit was to optimize the safety of the public by using specialized tactics and tools. He further testified that they do not typically gather evidence but if they do come in contact with it they don’t usually handle it but leave it to the patrol member.
[7] Based on information received by Constable Emberly they viewed Mr. Tag El Din’s arrest as “high risk”. This category was based on information that he was involved in a recent double homicide with the use of a firearm. The information Constable Emberly was provided was that Mr. Tag El Din was arrestable for an assault.
[8] Mr. Tag El Din was the only target. Ms. Rondilla-Curley was not a target nor was Constable Emberly instructed to arrest or detain Ms. Rondilla-Curley.
[9] Constable Emberly testified that members of the TAC Team were provided a target sheet which provided information on Mr. Tag El Din. This target sheet did not mention Ms. Rondilla- Curley or was she known to Constable Emberly prior to her detention on January 31, 2021.
[10] Constable Emberly under cross examination testified as follows:
Q And she's not implicated in the underlying offence of the assault?
A Not that I was aware of.
Q Okay. So why didn't you just let her walk away?
A Because I had previous information that the subject who was under arrest by us, or who we were there to arrest, was for a homicide involving a firearm, times two. We weren't furnished any further information who else may be involved in that. I don't know if she's involved or not in that. I don't know if she's involved any assault either, because as I said, we were given direction to arrest him. So it's very -- it's very prudent for us to detain her until we determine or until the investigators determine if she is or isn't involved.
A If -- if there's some chance that they are involved in the offence that we're arresting somebody for and they're clearly with that person, at the very minimum, it's prudent to detain them.
Q Okay.
A In case they are involved.
Q Okay. And to be clear, the only connection Ms. Rondilla-Curley has is being an occupant in a vehicle with the arrestable person?
A She's an occupant who got into the vehicle with the arrestable person, yes.
Q Okay. And that's enough to detain somebody?
A Should detaining somebody for an offence that they're arrest able for and there's other circumstances which may involve another party, which in this case it did, then yes, they would be detained and at least -- at the very least identified and then searched for officer safety.
[22] Constable Chan testified that Ms. Rondilla-Curley was detained for investigative purposes. As stated in
R v Mann, [2004], 3 S.C.R. 59, a police officer can legally detain an individual if there are reasonable grounds to suspect, having considered all circumstances, that the individual’s connected to a particular crime and such detention is necessary. The reasonable suspicion test is much lower than the “reasonable and probable grounds” test for the arrest of an individual and need only objectively indicate a possibility that a suspect is committing a crime.
[25] Based on Constable Chan’s testimony, I find that there were no objectively discernible grounds for investigative detention. Constable Chan had no instructions from superior officers to detain Ms. Rondilla-Curley. She was not part of any “target sheet”, and there was no information that she was part of the offence for which Mr. Tag El Din was being arrested for. The only information Constable Chan has was that Ms. Rondilla-Curley was in the vehicle with Mr. Tag El Din and had been in his presence for a period of time. When viewed objectively there is not “a constellation of objectively dissemble facts, which give the detaining officer reasonable cause to suspect the detainee is criminally implicated in the activity under investigation.”
R v Simpson.
[26] I conclude from the mission statement of the TAC team as well, as the testimony of Constable Emberly and Constable Chan that the tactical unit is involved in high risk arrests. The safety of the public is their paramount concern. I conclude from the evidence of the TAC team members that anyone who is in the company of the target individual will be detained and searched regardless whether they have reasonable suspicion that that individual was involved in criminal activity.
[28] I have previously found that Constable Chan did not have reasonable grounds to suspect that Mr. Rondilla-Curley was involved in the criminal offence that Mr. Tag El Din was being arrested for. Her actions at the scene, either watching Mr. Tag El Din being arrested, or walking away towards her apartment, did not indicate her involvement with any offence. The decision of
R v Upright,
2020 ABCA 122 is distinguishable in that the offender fled the scene and had to be apprehended by the police. Similarly, the decision of
R v Clayton,
2007 SCC 32 is distinguishable in that there was no nexus to the crime and the police actions. As the Court of Appeal indicated in
R v Steadman,
2021 ABCA 332, “police officers both have a duty to investigate” although they cannot act arbitrarily in doing so.
[29] As previously noted the arresting officer must have a reasonable suspicion that an individual is or has participated in criminal activity. If the officer has both the objective and subjective grounds a person may be detained and if the officer has reasonable grounds to believe that his or her safety is at stake and that as a result it is necessary to conduct a search.
[30] In R v MacDonald, 2014 1 SCR 37 at paragraph 41, the Court stated: “the legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R v Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 33). As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on “reasonable and specific inferences drawn from the known facts of the situation” (Mann, at para. 41).”
[31] This creates an anomaly. Despite Justice LeBel’s announcement of reasonable grounds in MacDonald more recent authorities indicate to me that the test should be a reasonable suspicion to believe that a person is armed and is an imminent threat, R v Kang-Brown, 2013 3 SCR 220.
[32] In R v Webber, 2019 BCJ 1071, BC Court of Appeal Justice Savage stated “in my view, this Court is free to allow the reasonable suspicion standard as set out by the unanimous Court in Chehil which is at least implicit in Mann. I agree with the minority in MacDonald that the whole context of the discussion in Mann, lead to the same unavoidable conclusion: Mann recognized a protected search power predicted on reasonable suspicion.”
[33] If Constable Chan had a reasonable suspicion that Ms. Rondilla-Curley was involved in the criminal offence he could detain and search for officer safety provided he had a reasonable suspicion that Ms. Rondilla-Curley was armed with a weapon....
Section 10(b)
[36] Constable Chan questioned Ms. Rondilla-Curley as soon as he determined that she was in possession of a firearm. Shortly after her arrest he provided her with her rights which involved speaking to her lawyer or any lawyer of choice. Ms. Rondilla-Curley indicated that her lawyer’s name was “Andrea” and that the phone number was contained in Ms. Rondilla-Curley’s cellphone. Constable Small seized two cellphones from Ms. Rondilla-Curley and gave them to Constable Ball. The seizure of the cellphones was on the direction of Detective Pearce.
[37] Constable Chan did not advise Constable Ball or Detective Pearce that Ms. Rondilla- Curley had indicated a desire to speak to her own counsel. The telephone number being in her phone. As I have found, the detention of Ms. Rondilla-Curley was arbitrary, and the subsequent search and seizure of her cellular telephone was a violation of section 8. The seizure of this phone prevented Ms. Rondilla-Curley from contacting the lawyer of her choice and lead to the section 10(b) violation.
[38] Taking Ms. Rondilla-Curley’s cellular telephone prevented her from accessing her lawyers phone number but in addition, it prevented her from accessing the internet. It is clear that Constable Powers made significant attempts to aid Ms. Rondilla-Curley in obtaining her lawyers number by providing her with the yellow pages. The yellow pages contain some lawyers telephone numbers, however the Court takes judicial notice that cellular telephones have access to the internet. More and more lawyers are advertising on the internet and the loss of Ms. Rondilla-Curley’s telephone prevented her from accessing the internet.
[39] During the time that Ms. Rondilla-Curley was in the custody of Constable Powers and Constable Hickey she made numerous inquiries concerning her cell phone that contained her lawyer’s number. (Constable Powers, April 13, 2022 pages 22, 23, 36, 37, 41, 42)
[40] Constable Hickey, Constable Powers’ partner dealt with the firearm seized from Ms. Rondilla-Curley and obtained Ms. Rondilla-Curley’s cellphone prior to a taped interview. Constable Hickey testifies that he informs Ms. Rondilla-Curley that he has her cell phone once they were in the interview, however this information is only provided to Ms. Rondilla-Curley at the conclusion of the taped interview with Constable Hickey.
