R v Deonath (ONSC)
[January 17/19] Self Defence - Murder - 2020 ONSC 314 [Di Luca J.:]
AUTHOR’S NOTE: The primary value of this case is that it is an example of self-defence working in respect to a murder charge. Interestingly, most of the defence was argued by reference to a recording made after the incident where the accused was calling his friend who, unbeknownst to him was recording their conversation. However, much of the rest was dependent on the interpersonal relationship factors involving the accused and the deceased.
 Kevin Deonath and Roy Khan were childhood friends. In early 2017, their friendship became strained as Mr. Khan suspected that Mr. Deonath was somehow involved in the theft of Mr. Khan’s valuables. By early July 2017, the relationship was openly hostile and Mr. Khan threatened violence against Mr. Deonath and his family.
 On July 28, 2017, at approximately 7:00 a.m., Mr. Deonath drove to Mr. Khan’s parents’ home to measure a floor for a tiling job. Moments after entering the home, Mr. Khan approached Mr. Deonath and pointed a loaded handgun at him. Words were exchanged and a struggle ensued. The gun was discharged and Mr. Khan was shot in the back of the head. Unfortunately, he died later that day.
 The defence argues that this is a classic case of self-defence. Mr. Deonath had a loaded gun pointed at him by someone who had threatened to harm him. There was a very quick struggle during which Mr. Deonath managed to take control of the gun. Mr. Khan was hit on the face and head with a tape measure and the gun. The gun went off unintentionally and Mr. Khan died. The defence argues that Mr. Deonath did not have the intent to commit murder and, regardless, he acted in self-defence in circumstances where his life was very clearly in danger.
 In January of 2017, the relationship between Mr. Deonath and Mr. Khan began to sour. Mr. Khan was the victim of a theft or robbery wherein his Rolex watch was taken. Mr. Khan believed that Mr. Deonath was implicated, perhaps indirectly, in the theft. Mr. Khan also came to believe that Mr. Deonath was involved in the theft of a bicycle or motorcycle that belonged to him.
 According to Mr. Eccles, Mr. Khan made several threatening phone calls to Mr. Deonath.
 One such phone call occurred on July 9, 2017. Mr. Deonath received this call while he was in Mr. Eccles’ car. Unbeknownst to either Mr. Deonath or Mr. Khan, Mr. Eccles recorded the call.
 During the call, Mr. Deonath and Mr. Khan argue over the missing Rolex and bicycle or motorcycle. There is a mention of the tiling job at the Khan residence. Mr. Khan threatens Mr. Deonath stating “…Don’t call my phone, yo. I’m gonna see you, I’m gonna see your mom, I’m gonna see your sister, anyone is getting it.”
 The call continues with an exchange of barbed comments. Mr. Deonath threatens to go over to Mr. Khan’s home. Mr. Khan indicates “…I gave your sister the dick.”
 According to Mr. Eccles, he interpreted Mr. Khan’s comments about “seeing” Mr. Deonath and members of his family as a threat by Mr. Khan to “roll up” on Mr. Deonath’s house and shoot whoever was there. While Mr. Eccles had never seen Mr. Khan with a gun, he believed that Mr. Khan had one based on comments by Mr. Khan. He also believed that Mr. Khan would bring the gun out to bars and nightclubs.
 According to Ali Khan, he received the call from Mr. Deonath who indicated that he was on Mr. Khan’s driveway and was there to take some measurements for a tiling job. Mr. Khan asked if he could take the measurements another time as he had already left for work and Mr. Deonath indicated that he preferred to take the measurements then. Mr. Ali Khan indicated he would contact his mother, Mrs. Lynette Rahaman, who was at the residence, and ask her to let Mr. Deonath into the house so he could take the measurements. At 6:59:07 a.m., Mr. Ali Khan called his mother and the call lasted 48 seconds. He also called Mr. Deonath twice, with the second call starting at 7:01:13 a.m. and lasting 16 seconds. While Mr. Ali Khan was aware of some issues between his son Roy Khan and Mr. Deonath, he did not anticipate there being any problems with Mr. Deonath’s attendance at the home. It appears that Mr. Deonath would have entered the Khan residence around 7:01:30 a.m., give or take a few seconds.
 At 7:05:17 a.m., approximately four minutes later, a white pick-up truck was seen driving southbound on Tall Grass Trail. The truck failed to stop at a stop sign at Pine York Drive, which is approximately 100 metres south of 105 Tall Grass Trail.
 At 7:06:17 a.m., Mrs. Rahaman called Mr. Ali Khan and at 7:07:40 a.m. she called 911. In a subsequent call, Mr. Ali Khan was advised by Mrs. Rahaman that something was “wrong” with Roy Khan and that he was unresponsive. Fire and EMS crews arrived on scene at 7:15:41 a.m. and 7:17:34 a.m., respectively.
 Following his departure from 105 Tall Grass Trail, Mr. Deonath made a number of calls to his friend Mr. Anthony Eccles. The calls take place at 7:09:04 a.m., 7:13:06 a.m., 7:20:50 a.m., and 7:38:59 a.m. Cell tower data shows that Mr. Deonath was travelling away from Vaughan and towards the area of his mother’s residence while these calls were made. A subsequent search of his mother’s home revealed a t-shirt underneath other clothes in a laundry basket in the basement. The t-shirt had Mr. Khan’s blood on it.
 At 7:58:23 am, Mr. Deonath calls Mr. Ali Khan. The call lasts 49 seconds. The call starts with Mr. Deonath offering an estimate for the tiling job. Mr. Khan replies by asking Mr. Deonath “what did you do with Roy?” He also tells Mr. Deonath that the police have been called and are looking for him. Mr. Deonath says “Bring the cops and come.” According to Mr. Ali Khan, Mr. Deonath’s tone during the call was “ignorant.”
 According to Mrs. Rahaman, when she let Mr. Deonath into the home, Roy Khan was having breakfast. He then went upstairs. After Mr. Deonath entered the home, Mrs. Rahaman went back upstairs and she passed Mr. Khan who was coming back downstairs. She did not see anything in his hands.
 Mrs. Rahaman returned to her bedroom. She heard something break but paid no attention to it. She testified that “a few minutes after I hear a bang, I hear something bang, and then I run downstairs.” When she arrived on the main floor of the home, she saw Mr. Deonath opening the front door and the storm door of the home. She saw Mr. Khan on the floor and asked Mr. Deonath repeatedly “What you do to my son?” She ran to Mr. Khan and shook him. He was lying flat on his back just inside the doorway to the living room.
 She did not recall a response from Mr. Deonath but noted that Mr. Deonath pulled the door closed behind him as he left. Mrs. Rahaman then called Ali Khan and 911.
 The primary evidence as to what occurs during the interaction between Mr. Deonath and Mr. Khan comes from the surreptitiously recorded conversation between Mr. Deonath and Mr. Eccles. The Crown tendered this call as part of its case.
 The call starts with Mr. Deonath telling Mr. Eccles to “put on a pot of coffee” as he will be there soon. He then tells Mr. Eccles that Mr. Khan “got it.” He explains as follows:
…I open the door and start measurin’ the fuckin’ tile. This idiot went upstairs, came down and push a fuckin’ gun in my face, talkin’ ‘bout “What are you doin’ here?” I punch him up couple of times, I disarm him and I box him with it, and it fuckin’ went off. He tells Mr. Eccles that the gun made a noise as well, though not as loud as one of the tools he uses. He also tells Mr. Eccles that he took the gun with him from the home.
 The following exchange then occurs:
KEVIN DEONATH: And when this idiot was goin’ upstairs I call them to come inside, nobody came in. I’m just like, “All right,” and Roy was like “Yeah, you think I – you think I’m scared to do it in my own house?” I’m like, “Yeah.” ‘Cause Roy was coming to fight. Punch him right in his fuckin’ mouth. “Shut up, yo. Yo, bitch, you’re not doing shit.”
ANTHONY ECCLES: What’d he say…
KEVIN DEONATH: And then….
ANTHONY ECCLES: …after he got hit?
KEVIN DEONATH: Yo, yo, I punch him two times in his mouth and he started fallin’ down, and then I just grabbed it. Yeah. Fuck you, pussy.
KEVIN DEONATH: He, yo, when I hit him, the thing it — it went off and the fuckin' man fell on the ground.
 During the call, Mr. Deonath indicates that Mr. Khan’s grandmother asked him what happened and he replied “You ask this fuckin’ grandson. Idiot” and “Yo, talk to your fuckin’ idiot grandson. He’s a fuckin idiot.” Mr. Deonath also indicates that when Mr. Ali Khan asked “what did you do to my son?” he replies, “Yo, I boxed him in his head. The man dropped like he got it.”
 There is no issue that the firearm used to kill Mr. Khan belonged to him. Indeed, the night prior to his death, Mr. Khan sent photos of the firearm to a person with the username “Fade SK”. The photos were taken on a bedspread that was identified as being in Mr. Khan’s bedroom inside his parents’ home. Mr. Khan was not licensed to possess the firearm.
 The firearm is designed for target practice. It has a lighter than usual trigger action, requiring only 4½ pounds of force. The trigger action for a police service firearm requires roughly 10 pounds of pull force to activate the trigger. This design is intentional for ease of use in target practice where minimal movement of the firearm is required for accuracy. With respect to police service firearms, a higher trigger force is also intentional in order to minimize the risk of unintentional discharge.
 The firearm has an ammunition clip that holds 10 cartridges. It appears that the gun was fully loaded at the time of the incident. One shot was fired. Two live cartridges were found in Mr. Deonath’s pocket upon arrest. The firearm was later located inside a home where Mr. Deonath had been working. It was under a sheet and comforter on an air mattress that Mr. Deonath used for rest while working at the home. The firearm was loaded and ready to fire with the safety off. The ammunition clip contained 7 live cartridges.
 In cross-examination, Det. Cst. Kamstra agreed that if a gun was used to hit someone, with the safety off and a finger on the trigger, it could be accidentally or unintentionally discharged.
Cause of Death
 Dr. Ingo von Both was the forensic pathologist who conducted the autopsy on Mr. Khan. He concluded that the cause of death was a single gunshot wound to the head....
 ...Given the absence of stippling and a muzzle stamp but the presence of soot in the sub-scalp around the broken skull bone, Dr. von Both opined that this was more likely a case where the firearm was in loose contact with the skin of deceased. That said, based on the caliber of the firearm, he could not rule out that the firearm was in hard contact with the deceased’s scalp when it was discharged.
Self Defence in Law
 In terms of the lawfulness of Mr. Deonath’s conduct, the central issue is self-defence. Section 34 of the Criminal Code addresses self-defence...
 Self-defence is a justification based on the principle that in certain circumstances, it is lawful to use force in order to resist force or the threat of force: R. v. Ryan(2013), 2013 SCC 3 (CanLII), 290 C.C.C. (3d) 477. The defence has three elements; a reasonable belief, a defensive purpose and a reasonable response: R. v. Cormier, 2017 NBCA 10. The reasonableness of the response is assessed in accordance with the factors listed is s. 34(2). When assessing the nature and proportionality of the accused’s response to the use or threat of force, the court must not hold the accused to a standard of perfection or require that the accused measure the response to “a nicety”: R. v. Baxter (1975), 27 C.C.C. (2d) 97 (Ont.C.A.) and R. v. McPhee, 2018 ONCA 1016, at para. 24.
 Where there exists an air of reality to self-defence, the Crown must prove beyond a reasonable doubt that the defence does not apply. It is sufficient for the Crown to prove that any one element of the defence does not apply. The Crown does not have to prove that all elements of the defence do not apply.
 The Crown must prove the requisite intent for murder and disprove self-defence and provocation beyond a reasonable doubt. Mr. Deonath does not have to prove anything and, in particular, he does not need to prove that he acted in self-defence.
 The evidence in relation to Mr. Deonath’s intent is circumstantial. In order for me to be satisfied beyond a reasonable doubt that Mr. Deonath had the requisite intent under either s. 299(a)(i) or (ii), that finding must be the only reasonable inference available on the evidence: R. v. Villaroman, 2016 SCC 33.
 I agree with the Crown that based on the position of the wound and the evidence of Mrs. Rahaman about the timing of the “noises”, one available inference is that the firearm was pointed to the back of Mr. Khan’s head and intentionally fired. However, that is not the only available inference. Another reasonably available inference is that Mr. Khan was simply struck in the back of the head while he had his head turned away, and the gun discharged unintentionally. On this basis, I am not satisfied that the Crown has proven the requisite intent for murder under either s. 229(a)(i) or (ii). In these circumstances, I need not consider provocation.
 I turn next to self-defence. There is no issue that the first two legal criteria for the defence of self-defence have been satisfied by the evidence. Mr. Deonath had a loaded handgun pointed at him by someone who had, on a prior occasion, threatened him. There can be no doubt that Mr. Deonath reasonably feared that potentially lethal force was going to be applied to him. I also accept that Mr. Deonath’s response was for the purpose of defending himself from the perceived threat posed by the loaded firearm that was pointed at him. The remaining issue is whether Mr. Deonath’s response was reasonable in the circumstances. In assessing this issue, I am guided by the criteria listed in s. 34(2) of the Criminal Code. In this regard, I make the following findings:
a. Mr. Khan pointed a fully loaded semi-automatic firearm at Mr. Deonath inside the foyer of his parents’ home. The foyer is a small, relatively confined space. The pointing of the firearm was accompanied by a comment by Mr. Khan indicating he was prepared to use the firearm.
b. This happened at approximately 7 a.m., when Mr. Deonath was at the house for a perfectly legitimate purpose. Mr. Deonath did nothing other than enter the home and begin measuring the tiles.
c. There was a history of tension between Mr. Khan and Mr. Deonath. A couple weeks prior, Mr. Khan had threatened Mr. Deonath during a phone call. The threat arguably involved a threat to shoot Mr. Deonath and members of his family.
d. There was a struggle over the firearm and as indicated above, I am satisfied that at least one reasonable inference is that once Mr. Deonath managed to get the firearm away from Mr. Khan, he used the firearm to strike Mr. Khan in the face, head and back, at which time the gun was unintentionally discharged once.
e. I find that using the firearm to strike Mr. Khan is a completely proportionate response in these circumstances. While Mr. Deonath could have retreated out the front door with the gun, he was in a relatively confined space with two closed doors between him and the front porch of the home. A perfectly calculated response is not the test. In these circumstances, I do not fault Mr. Deonath for failing to retreat.
 When I consider all the evidence in accordance with the applicable legal principles, I find that the Crown has failed to prove beyond a reasonable doubt that Mr. Deonath did not act in lawful self-defence.
R v Fuller (ONSC)
[July 4/19] Charter s.7 - Abuse of Process - Crown Repudiation of Plea Agreement - 2020 ONSC 314 [Renee M. Pomerance J.]
AUTHOR’S NOTE: Every now and then, it turns out the Crown's word on a plea agreement is not something they want honour. Herein, Justice Pomerance provided the analysis necessary to determine if the Crown can do so.
 Jon-Paul Fuller is charged with various offences alleging a large-scale marijuana grow operation. He seeks a stay of proceedings, alleging an abuse of process. He argues that the crown, having agreed to a resolution of the charges, should not have repudiated the plea agreement. In addition, the crown now proposes to call witnesses at trial who were told that the accused was going to plead guilty. The accused says that these events create an unfairness that amounts to an abuse of process and warrants a judicial termination of the proceedings.
 The repudiation of a plea agreement is a matter involving prosecutorial discretion, subject to very limited review. It is not for me to review the reasonableness of the original plea agreement, or the reasonableness of the repudiation. The question is, rather, whether the state conduct meets the threshold of an abuse of process, in violation of s. 7 of the Canadian Charter of Rights and Freedoms(“Charter”). Having applied this elevated standard, I find that the cumulative effect of the state conduct in this case – the disclosure to crown witnesses and the subsequent repudiation – has deprived the accused of the right to a fair trial.
 The facts are not in dispute. The parties agree on the following chronology, set out in the accused’s factum:
 The decision to repudiate a plea agreement falls within the ambit of prosecutorial discretion. Such decisions are not generally reviewable by the courts, given the constitutional role of the Attorney General, and the importance of such discretion to the proper administration of justice. As it was put in Krieger v. Law Society of Alberta, 2002 SCC 65, para. 32:
The court’s acknowledgment of the Attorney General’s independence from judicial review in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our Constitution. Subject to the abuse of process doctrine, supervising one litigant’s decision-making process __ rather than the conduct of litigants before the court__ is beyond the legitimate reach of the court. In Re Hoem and Law Society of British Columbia (1985), 1985 CanLII 447 (BC CA), 20 C.C.C. (3d) 239 (B.C.C.A.), Esson J.A. for the court observed, at p. 254, that:The independence of the Attorney-General, in deciding fairly who should be prosecuted, is also a hallmark of a free society. Just as the independence of the bar within its proper sphere must be respected, so must the independence of the Attorney-General.
 The sentiment was reinforced in R. v. Anderson, 2014 SCC 41 (CanLII),  S.C.J. No. 41, paras. 37 and 44:
In an effort to clarify, I think we should start by recognizing that the term “prosecutorial discretion” is an expansive term that covers all “decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it” (Krieger, at para. 47). As this Court has repeatedly noted, “[p]rosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences” (Krieger, at para. 44, citing Power, at p. 622, quoting D. Vanek, “Prosecutorial Discretion” (1988), 30 Crim. L.Q. 219, at p. 219 (emphasis added)). While it is likely impossible to create an exhaustive list of the decisions that fall within the nature and extent of a prosecution, further examples to those in Krieger include: the decision to repudiate a plea agreement (as in R. v. Nixon, 2011 SCC 34 (CanLII),  2 S.C.R. 566); the decision to pursue a dangerous offender application; the decision to prefer a direct indictment; the decision to charge multiple offences; the decision to negotiate a plea; the decision to proceed summarily or by indictment; and the decision to initiate an appeal. All pertain to the nature and extent of the prosecution. As can be seen, many stem from the provisions of the Code itself, including the decision in this case to tender the Notice.
Review for Abuse of Process - Repudiation of Plea Agreements
 ....In Nixon [R. v. Nixon, 2011 SCC 34,], the Supreme Court of Canada stopped short of holding that such agreements must always be enforced. The court recognized that there may be circumstances in which a plea agreement would so undermine the public interest that the crown is entitled to resile from its original position. Nixon was one such case. The Supreme Court found no wrongdoing or unfairness, but set down the following guidelines:
a) the duty of counsel to honour plea agreements is not only ethically imperative but also a practical necessity, as these agreements dispose of the great bulk of the contentious issues that come before criminal courts;
b) The binding effect of plea agreements is a matter of utmost importance to the administration of justice, contributing, as it does, to a fair and efficient criminal justice system;
c) There may be instances where different crown counsel disagree about a plea agreement in a particular case. The vital importance of upholding such agreements means that, in those instances where there is disagreement, the crown may just have to live with the initial decision that has been made;
d) Plea agreements should only be repudiated in exceptional and rare circumstances, where they risk undermining the integrity of the court, or bringing the administration of justice into disrepute.
Application to the Case
 ... It is said, on the residual category, that the crown conduct undermined the integrity of the administration of justice. I have focused my analysis on the fairness category. Under this category, it is not necessary for the defence to establish proof of prosecutorial misconduct or bad faith. The key to this test is establishing prejudice. See Nixon, para 40.
 Two events converge to render the prospect of a trial of the accused to be unfair. The first is the improper disclosure to crown witnesses that the accused was going to plead guilty and go to jail. It is not clear whether the crown directed that this information be conveyed, or the officer did so on his own initiative. In either instance, the conduct is attributable to the prosecution. This disclosure was made before the judicial pre-trial, and before any agreement was actually in place. The information took on a public character when one of the witnesses posted an inflammatory message on his Facebook page.
 The second event is the crown repudiation of the plea agreement. Having told witnesses that there would be a plea, the prosecution then prevented the plea from taking place. Both the disclosure and the repudiation were within the control of the crown. Yet, they are at odds with one another. If there was a possibility of repudiation, witnesses should never have been told about the plea. Once witnesses were told about the plea, there should not have been a repudiation.
 While the accused bears the persuasive onus to establish a violation of s. 7 of the Charter, the onus is upon the crown to explain why and how it repudiated the plea agreement. In Nixon, Charron J. explained in para. 63:
… Further, to the extent that the Crown is the only party who is privy to the information, the evidentiary burden shifts to the Crown to enlighten the court on the circumstances and reasons behind its decision to resile from the agreement. That is, the Crown must explain why and how it made the decision not to honour the plea agreement. The ultimate burden of proving abuse of process remains on the applicant and, as discussed earlier, the test is a stringent one. However, if the Crown provides little or no explanation to the court, this factor should weigh heavily in favour of the applicant in successfully making out an abuse of process claim.
 There is a paucity of evidence explaining the repudiation in this case.
 It bears noting that the prosecutor who offered the plea deal was a senior lawyer, who had years of experience as a prosecutor for the Attorney General of Ontario and who, in his retirement, does agency work for the PPSC. Mr. Bailey had had carriage of this case from the outset. He successfully defended the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) search warrant in the Charterlitigation. He offered the resolution to the defence, with no suggestion that it would be subject to approval by other officials.
 Mr. Bailey made the offer contingent on judicial approval. That approval was granted by R.S.J. Thomas at the pre-trial. Therefore, the defence fully expected that the plea would take place the following day. The accused would not have committed to the plea agreement at that stage had it been known that it was yet subject to approval.
 Why did PPSC direct a repudiation? The sole evidence on this point is an e‑mail communication sent to Mr. Bailey by Ms. Houtmeyers of the PPSC, at 1:48 p.m., on October 15, 2019, just a few hours after the judicial pre-trial before R.S.J. Thomas. The e-mail reads as follows:
Good afternoon Paul,
I am writing to advise you that I have consulted with our Chief Federal Prosecutor regarding the proposed resolution of the matter of R. v. Fuller for a joint submission of 90 days, a $25,000 fine, forfeiture and ancillary orders. It is the position of PPSC that you are to resile from the position. To that end and according to Chapter 3.7 of the PPSC Deskbook, you should advise counsel in writing of the reasons for the repudiation, namely that the sentence falls outside the range of acceptable sentences for this offence.
If the accused wishes to resolve, please contact me for the position to be taken on sentence which will be in the range of 18-36 months. If the accused wishes to continue to trial, please set the earliest possible dates that court can offer. In the event that an 11(b) application is filed, please consult with the Agent Supervision Unit....
 Thus, the crown repudiated the agreement on the basis that the sentence fell “outside the range of acceptable sentences for this offence”. Mr. Park, in his submissions to the court, confirmed that this was, and still is, the position of the PPSC. It takes the position that that the proposed sentence could not be a fit disposition for the offence in issue because case law supports a range of 18-36 months.
 The direction to repudiate in this case was issued a few hours after the judicial pre-trial. Yet, there is no evidence that PPSC officials inquired into the discussions at the judicial pre-trial, and/or the judicial approval of the resolution. Nor, apparently, were PPSC officials aware of the specifics of the agreement: the particular count or counts to which the accused would plead, the facts on which the plea was predicated, the frailties, if any, of the crown’s case, and any other considerations seen to justify a lesser penalty. The record would indicate that the repudiating officials assumed that the proposed sentence could never be fit given the nature of the allegations. However, the fitness of a disposition cannot be determined in a factual vacuum. Absent evidence that the PPSC officials inquired into and considered the basis for Mr. Bailey’s position, I must conclude that the repudiation was based on something less than a full and informed analysis.
 This case is therefore distinguishable from Nixon. There, the repudiation was predicated on a careful assessment of the prevailing law, governing principles and the public interest....
 In Nixon, Charron J. posited a scenario that would amount to an abuse of process. She invited consideration of an example in which “…the repudiation was made arbitrarily, without inquiry into the circumstances leading to the plea agreement and without regard to any resulting prejudice to the accused”. That example is this case. It amounts to an abuse of process because repudiation is to be a rare and exceptional event. It should not occur merely because prosecutors disagree about a disposition. On the record before me, PPSC officials did not have enough information to meaningfully assess whether the disposition would bring the administration of justice into disrepute. Nor was any consideration given to the prejudice that might be visited upon the accused. This would seem to be the type of case where, despite disagreement, the crown had to live with the offer made by one of its agents....
 Even if the repudiation would not, standing alone, result in an abuse of process, it reaches that level of unfairness when considered against the backdrop of the disclosure to crown witnesses. I will turn to that now.
Fairness of Trial
 Mr. Bradie, for the defence, argues that the witness’ evidence is irrevocably tainted. This is not a case in which one witness was presented with the account of another witness. The concern is of a more global and definitive nature. There could, perhaps, be no greater confirmation of the accused’s guilt than his own acknowledgment of it. There is very real risk that disclosure of the plea will influence the perception of witnesses and the testimony that they offer. Mr. Bradie noted the difficulty in conducting cross‑examinations. While the proposed plea is not admissible, the defence will be forced to raise it in challenging witness’ testimony. It will be difficult to probe the extent to which witnesses have, consciously or subconsciously, sculpted their evidence to accord with the perception of guilt.
 I agree with Mr. Park that the authorities discourage trial judges from speculating about witness tainting. In cases where witnesses have been exposed to extraneous material, courts have suggested that the testimony should generally be heard before presuming that the trial will be unfair. In R. v. Dikah, 1994 CanLII 8782 (ON CA),  O.J. No. 858 (C.A.), Doherty J.A. stated, at para.40, that: “…judicial concerns with respect to the ultimate reliability of an as yet unheard witness are not, standing alone, a proper basis upon which to impose a judicial stay of proceedings”.
 Similarly, in R. v. Buric, 1996 CanLII 1525 (ON CA),  28 O.R. (3d) 737 (C.A.), at para. 25, affirmed 1997 CanLII 380 (SCC),  S.C.J. No. 38, Labrosse J. observed that: “It is difficult to foresee how a trial will unfold when the witness has not yet been heard”.
 Were tainting the only issue in this case, it might well be appropriate to hear from the witnesses to determine whether the defence has been compromised in its ability to challenge the evidence. However, tainting is not the only issue. Just as the repudiation was linked to the tainting of witnesses, the tainting of witnesses is linked to the repudiation. It is the combined impact of the state conduct that results in the unfairness. The accused should not be forced to confront witnesses who were improperly told of his intention to plead guilty at a trial that he had reason to believe was not going to occur. The trial of the accused would in my view result in an abuse of process and a violation of his rights under s. 7 of the Charter.
Remedy Pursuant to s.24(1)
 In R. v. Babos, 2014 SCC 16 (CanLII),  1 S.C.R. 309, para. 32, the Supreme Court of Canada set out a three-part test for determining if a stay is appropriate:
The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:
(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);
(2) There must be no alternative remedy capable of redressing the prejudice; and
(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (ibid., at para. 57).
 Here, the first part of this test is clearly met. The prejudice to the accused’s fair trial rights would be “manifested, perpetuated or aggravated” through the conduct of the trial.
 The second part of the test is more difficult to assess. The question is whether there is an alternate remedy capable of redressing the prejudice. In this case, I must consider whether, having set aside the repudiation, the logical remedy is to require enforcement of the original plea agreement. On its face, this would seem to be a proportionate remedy. It would correct the prejudice flowing from the repudiation itself and would render academic the prejudice that would occur at trial. This is not a typical remedy under s. 24(1) of the Charter, but nor is it common to see repudiation of plea agreements.
 Therefore, I appreciate that it may not be possible to genuinely recreate the sentencing hearing that would have taken place, but for the repudiation. Accepting that fact, I am still of the view that imposing the sentence originally contemplated by the plea agreement, and approved by a judge at that time, is a just and appropriate remedy, capable of redressing the prejudice, and more proportionate in its effect than a stay of the proceedings.
R v Reid (ONCJ)
[January 17/20] – Charter s.8 - Warrants and Sufficiency of Grounds to Believe Evidence will be Found within Dwelling - Duty to Make Full Frank Disclosure – 2020 ONCJ 35 [Justice John North]
AUTHOR’S NOTE: Police officers in warrant applications often claim that due their experience they have reason to believe that drug dealers keep drugs close to them (ie. within their homes) and then use this to gain warrants to enter their residence. Here, that generalised believe was unable to overcome the surveillance evidence available to police which failed to establish a reasonable grounds-based link between trafficking behaviour and the residence of the accused. Further, an omission of where the accused's vehicle was during surveillance close to the time of application rendered that link even less likely - this was subsequently included on the review which led the exclusion of the search evidence.
 On January 30, 2018, Toronto Police Service (TPS) officers executed Controlled Drugs and Substances Act (CDSA) search warrants on three apartments and one motor vehicle. Inside one of the apartments officers seized a number of items including a loaded handgun, ammunition, drug paraphernalia and a little over 6 grams of powder cocaine. The police located no evidence at the other two apartments and found no contraband in the motor vehicle.
 Earlier that day, Adrian Reid had been arrested for the offence of possession of a Schedule I substance for the purpose of trafficking. Mr. Reid was the target of this investigation. After the police executed two of the search warrants, Mr. Reid was charged with a number of additional offences.
 Mr. Reid challenged the admissibility of the evidence seized during the execution of the search warrant at the apartment. He brought an application pursuant to ss. 8, 9, 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms (Charter) to exclude the seized evidence.
 I have concluded that:
• Mr. Reid’s rights under s. 8 were infringed. The issuing justice could not have issued the search warrant for the apartment where the evidence was found because the information to obtain (ITO), as amplified on review, failed to disclose reasonable and probable grounds to believe that evidence of a CDSA offence would be found at that location.
 On January 30, 2018, search warrants were issued for the following locations:
• Unit 407-60 Annie Craig Drive, Toronto;
• Basement apartment, 754 Broadview Avenue, Toronto;
• Unit 1408-6 Eva Road, Toronto; and
• a 2012 BMW with licence plate CCSE 159 (the “BMW”).
 On January 30th, Mr. Reid (while shopping at a Mississauga aquarium store) was arrested for the offence of possession of a Schedule I substance for the purpose of trafficking. In keeping with the police investigative plan, Mr. Reid was arrested before the police executed any of the search warrants. No controlled substances were found on Mr. Reid during a search incident to arrest.
 During the execution of the search warrant at unit 407-60 Annie Craig Drive, police officers found a quantity of controlled substances, a loaded Smith and Wesson handgun, ammunition, cash and drug paraphernalia. The officers also located documents belonging to Mr. Reid and Sarah Lentinello. Some of these documents were addressed to Mr. Reid and Ms. Lentinello (jointly) at unit 407-60 Annie Craig Drive. Mr. Reid was subsequently charged with various firearms and drug charges. No controlled substances or weapons were located by the police at any of the other search locations.
The Pertinent Contents of the ITO
 Detective Constable Black stated that two CIs had provided information to police about a man who was trafficking cocaine. TPS investigators identified Adrian Reid as the target of the investigation.
 Detective Constable Black stated that another officer “conducted an investigative check where three parking tags were issued at 60 Annie Craig Drive in the late-night hours.” The ITO does not state the date when these tags were issued, which vehicle received the tags or when the officer conducted the “investigative check.”
 Detective Constable Black stated that on January 29, 2018 he attended 59 Annie Craig Drive and spoke with “building management.” He also reviewed CCTV recordings. Detective Constable Black watched a CCTV recording in which Mr. Reid and Ms. Dam, at approximately 10:07 p.m., entered an elevator from “P5” and walked off the elevator together on the fourth floor. Detective Constable Black did not state in this paragraph whether this elevator was in 59 Annie Craig Drive or in another building. He also did not indicate the date when this recording was made.
 On Saturday, January 27, 2018, members of the Guns and Gangs Task Force “set up in the area of 60 Annie Craig Drive to conduct surveillance.” The ITO describes the police surveillance on January 27th as follows:...
• The blue BMW with Ontario marker CCSE 159 was located in the area....
• ** the affiant speaks to building management of 59 and 60 Annie Craig Drive **. It was advised that the parking spot of P5 spot 24 is registered to Sarah Lentinello, 60 Annie Craig Drive unit 407 who is on the lease for the unit. The unit also has a storage locker registered to it with # 94....
 Detective Constable Black included additional information in Appendix C, some of which he obtained during the course of this investigation and some was based on his experience as a police officer. This additional information included the following:
- “Adrian Reid has nothing registered to his name which makes me believe he does not want to be detected by police or rival drug dealers. Officers have source(s) corroborating each other that Adrian Reid [redacted] trafficker.” The judicial summary of the redacted portion of this sentence states that this descriptive detail relates to the level at which Mr. Reid was trafficking.
- “I believe that Adrian Reid is a mid-level drug trafficker and has stash houses where he is keeping his narcotics. Adrian Reid has convictions of drug possession in the past and I believe he is currently doing so for his source of income. At no time have members seen Adrian Reid attend any form of work or employment during surveillance.”
Reviewing a Warrant
 The review of the validity of a search warrant begins from a presumption that the warrant is valid: R. v. Pires; R. v. Lising, 2005 SCC 66 (CanLII),  3 SCR 343, at para. 30; Beauchamp, at para. 85. The presumption is rebuttable: Nero, at para. 68. The onus is on the accused to establish that the ITO is insufficient: R. v. Campbell, 2011 SCC 32 (CanLII),  2 SCR 549, at para. 14; Sadikov, at para. 83.
 In this case, the defence advanced a sub-facial challenge to the warrant. In R. v. Paryniuk, 2017 ONCA 87 at para. 77, Watt J.A. stated that a sub-facial challenge, “turns on what the affiant knew or ought to have known when the ITO was sworn.” In R. v. Lakan, 2018 ONSC 3649, at para. 71, Hill J. observed that a sub-facial challenge, “is for the accused to go behind the ITO to attack the reliability of its content.”
 While the existence of fraud, non-disclosure, misleading evidence and new evidence are relevant to the review of the search warrant, their impact is to determine whether – after the offending portions of the ITO are excised and after relevant amplification – there continues to be any basis for the decision of the issuing judge: R. v. Araujo, 2000 SCC 65 (CanLII),  2 SCR 992, at paras. 51-60; Garofoli, at p. 1452; R. v. Hafizi, 2016 ONCA 933, at para. 44.
Full and Frank Disclosure
 In Booth, the Court of Appeal recently addressed the question of what is “the frame of material information required to achieve full and frank disclosure?” At para. 56 Paciocco J.A. stated that it includes:
“…all material information that: (a) could undercut the probability that the alleged offence has been committed; (b) could undercut the probability that there is evidence to be found at the place of the search; and (c) that challenges the reliability and credibility of the information the affiant officer relies upon to establish grounds for the warrant.” [Emphasis added]
 As previously noted, when “material information that would hinder a finding of reasonable and probable grounds has been improperly omitted, the ITO must be amplified to include it”: Booth, at para. 59. See also Morelli, at para. 60; World Bank Group v. Wallace, 2016 SCC 15 (CanLII),  1 SCR 207, at paras. 121-122. The reviewing court must then “determine based on that corrected ITO whether the warrant could properly have issued if full and frank disclosure had been made”: Booth, at para. 57.
 The ITO did not disclose that the first time the police saw the BMW on January 27th was at 4:31 pm at a gas station located up to one kilometer from 60 Annie Craig Drive.
 In my view, the omission of this information made the grounds appear stronger than they actually were. The time and location of this observation was important in determining whether there were reasonable and probable grounds to believe that evidence would be found at unit 407-60 Annie Craig Drive. To this point in the investigation, Mr. Reid had never been seen at 60 Annie Craig Drive. Without this information, the issuing justice would not have known that the BMW was up to a kilometer from 60 Annie Craig Drive when the police found it. Without this information, the issuing justice would not have known that close to three hours elapsed from the time the police first located the BMW at the Esso gas station to the time of Mr. Reid’s involvement in what appeared to be a hand-to-hand drug transaction. While the ITO provides very little information about what occurred between 4:31 p.m. and 7:14 p.m., it is clear at some point during this period, Mr. Reid entered a laneway and, it appears, the police lost sight of him for an unknown period of time.[The omission was corrected by including the information in the review of the ITO]
 In the case at bar, the police did not see the target of this investigation engage in a suspected drug transaction immediately after leaving his apartment building. There is no reasonable basis to conclude Mr. Reid left 60 Annie Craig Drive and drove directly to the gas station. Finally, unlike the facts in Soto, it appears that the police lost sight of Mr. Reid before the suspected drug transaction. The facts in this case are clearly distinguishable from the facts in Soto.
 In my view, the ITO in this case (as amplified on review) is more similar to the Le ITO than the Prosser ITO.
 In Le, the appellants were convicted at trial of possession of a controlled substance for the purpose of trafficking. In the Le ITO, the affiant deposed that there were reasonable and probable grounds to believe that the two appellants (Le and Liu) and Petros Soiles were trafficking controlled substances. Four CIs told the police that Soiles was trafficking drugs on behalf of Le. One CI told police that Le and Liu and were providing cocaine to Soiles for the purposes of trafficking. An anonymous phone caller told police that a Vietnamese man named Michael and an Asian woman named Coco were selling cocaine at the kilogram level. The anonymous caller also indicated that Le and Liu lived in an apartment building that police later identified as “McKay Avenue”. Police saw Soiles meet with four known street-level drug dealers. The affiant deposed that these meetings were consistent with drug trafficking activity. Soiles was also observed to frequently enter and exit his apartment at “Regiment Square”, in a manner that the affiant deposed was consistent with drug trafficking activity.
 Over a four-week period, on nine occasions, police observed one or both of the appellants drive into the Regiment Square parking garage (using a fob associated with Soiles’ apartment) and enter Soiles’ apartment. Each time, they only stayed a short while.
 Police obtained search warrants for Soiles’ apartment at Regiment Square and the appellants’ apartment on McKay Avenue. The search of the McKay Avenue apartment resulted in the seizure of a significant amount of drugs.
 The British Columbia Court of Appeal stated at para. 41:“…there was overwhelming information that Soiles was trafficking in drugs; there was also information from which, without difficulty, the police could conclude that there were reasonable grounds to believe that Le and Liu were trafficking in drugs with Soiles. The more difficult question is whether there existed a reasonable basis to believe that evidence of drug trafficking would be found at Le and Liu’s residence on McKay Avenue.” [Emphasis added]
 The Crown argued that the ITO provided a reasonable basis to infer that the appellants used their home to store drugs. The Crown acknowledged that “reliable information that an individual is trafficking in drugs is not, without more, sufficient to justify a search of his or her home.” However, the Crown argued that “by the process of elimination the drugs had to be” at the appellants’ residence.
 The Court of Appeal found it was significant that, despite frequent surveillance of the appellants and tracking devices on their vehicles, the appellants were never observed travelling directly from their McKay Avenue apartment to Soiles’ apartment on Regiment Square.
 In concluding that the trial judge erred in holding that the search warrant for the McKay Avenue apartment had been properly issued, the Court of Appeal found, at paragraph 45, that the totality of circumstances, including the number of times the appellants attended at the Regiment Square apartment, “does not lead to a credibly based probability that the drugs were coming from McKay Avenue.”
 The Court of Appeal observed, at paragraph 45, that there was “a gap in the information as to the appellants’ point of origin prior to their alleged delivery of drugs to Regiment Square.” In the end, the Court of Appeal concluded, at para. 45, that the amplified ITO contained “nothing more… than supposition that the drugs were originating from McKay Avenue.”
 In the case at bar, the CIs did not tell the police that Mr. Reid was in possession of drugs at his apartment building. There was no clear connection between unit 407-60 Annie Craig Drive, Mr. Reid and the commission of the suspected offence on January 27th.
 In the case at bar, the ITO included Detective Constable Black’s opinion that he believes evidence of Mr. Reid’s drug offences would be found in the locations named in the ITO because, in his experience, drugs are often stored in “areas directly controlled by the individual, such as homes, motor vehicles and storage lockers.”
 As previously noted, officer training and experience can play an important role in determining whether the reasonable grounds to believe standard has been met:MacKenzie, at para. 62. In some circumstances, it would be open to a court to find based on opinion evidence of this nature, considered together with other information in an ITO, that there were reasonable and probable grounds to believe that evidence would be found in the premises to be searched.
 However, in my view, this is not such a case. Reasonable grounds to believe is an objective standard that must “stand up to independent scrutiny”: MacKenzie, at para. 64.
 In R. v. Aboukhamis, 2015 ONSC 2860, the police obtained a CDSA search warrant for a residence. Inside and around the residence police found controlled substances and a digital scale. The accused was charged with possession of a controlled substance for the purpose of trafficking. The accused brought an application to exclude the evidence based on a s. 8 breach. The ITO contained a police officer’s opinion that drug dealers often “keep their drugs with them in their vehicles and their residences or the residences they use to sell the drugs.” Grace J. found that the search warrant was invalid as it failed to establish reasonable grounds to believe that evidence would be found in the residence. In my view, the following conclusions of Grace J., at paras. 36, regarding the opinion evidence in that case apply with equal force to Detective Constable Black’s opinion evidence:
“The paragraph contains a generalized statement about the propensity of those engaged in drug trafficking. Without some case-specific evidentiary support, it seems to me to be of little, if any, value.”
 As I previously noted, an ITO must state investigative facts sufficient to establish reasonable grounds to believe three things: 1) that an offence has been committed; 2) that the things to be searched for will afford evidence; and 3) that the things in question will be found at the place of the proposed search.
 Turning to the third requirement. In deciding whether the issuing justice could have concluded that there were reasonable and probable grounds to believe that evidence of a CDSA offence would be located at unit 407-60 Annie Craig Drive, I must consider the ITO, as amplified on review, as a whole.
 It may be helpful at this point to briefly review what was and was not in the ITO, as amplified on review:
- The CIs did not tell the police that drugs or other evidence of a drug offence would be found at unit 407-60 Annie Craig Drive.
- On January 27th, prior to the suspected hand-to-hand drug transaction, the police did not see Mr. Reid or the BMW at 60 Annie Craig Drive.
- The BMW was first seen by police, at 4:31 p.m. at a gas station located up to one kilometer away from 60 Annie Craig Drive. Mr. Reid was later seen driving the BMW.
- There is no way of knowing whether Mr. Reid was at 60 Annie Craig Drive on January 27th before the suspected hand-to-hand drug transaction. The first time the police saw Mr. Reid at 60 Annie Craig Drive on January 27th was when he drove the BMW into the underground parking area (many hours afterthe suspected drug transaction).
- The ITO contained very little information about what Mr. Reid did between the time the police located the BMW at the gas station until the suspected drug transaction. While affiants are not required to include every detail regarding observations made by police, in this case the absence of information about what occurred during the two hours and forty-five minutes between the police finding the BMW and the suspected drug transaction is a relevant consideration in deciding whether the ITO contained a sufficient basis to conclude that there were reasonable and probable grounds to believe that evidence would be found at unit 407-60 Annie Craig Drive.
- The ITO did not state what happened when Mr. Reid walked into the laneway by Winchester Street on January 27th. Mr. Reid entered the laneway beforethe suspected hand-to-hand drug transaction. The ITO did not indicate what was in that laneway. There was no indication of when Mr. Reid entered or exited the laneway. The statement in the ITO that Mr. Reid walked out of the laneway “a short time” after entering it is, without more information, almost meaningless. Given this vague description, it is not possible to say whether Mr. Reid exited the laneway ten seconds or twenty minutes after entering it. Based on the ITO, it is not possible to know whether Mr. Reid had time to meet someone after walking into the laneway. It is not possible to know whether Mr. Reid had time to enter a car or a building after he walked into the laneway. It is not possible to know whether Mr. Reid had time to have been involved in a transaction or otherwise acquire or leave something after he entered the laneway.
- Mr. Reid was not seen by police at 60 Annie Craig Drive until at least two and a half hours after the suspected drug transaction. From the time of the suspected drug transaction until Mr. Reid arrived at 60 Annie Craig Drive, the police lost sight of the BMW and Mr. Reid on at least a couple of occasions. During this period, the BMW was “misplaced” for a total of approximately 25 minutes. Even when the police knew where the BMW was during this period, they did not always know where Mr. Reid was located (as he was out of the vehicle).
- There is no indication in the ITO when the police discontinued surveillance on the BMW and Mr. Reid on January 27th.
- Although there was evidence that connected Mr. Reid to unit 407-60 Annie Craig Drive, Mr. Reid was never seen entering or leaving that apartment. Police surveillance did not establish that that Mr. Reid actually stayed overnight at 60 Annie Craig Drive.
 The amplified ITO does not establish a reasonable nexus between Mr. Reid, a drug offence and unit 407-60 Annie Craig Road. The record does not provide a reasonable basis to infer that on January 27th Mr. Reid took evidence of a CDSA offence to, or kept evidence of a CDSA offence at, unit 407-60 Annie Craig Drive.
 When viewed through the lens of a reasonable person (with the experience and training of Detective Constable Black), the ITO, as amplified on review, considered as a whole, fails to satisfy the reasonable and probable grounds to believe standard. At most, it establishes that there may have been grounds to suspect that evidence of a CDSA offence would be found at unit 407-60 Annie Craig Drive.
Section 24(2) Analysis
Seriousness of the Charter Infringing State Conduct
 However, the first inquiry under Grant does not always favour admission of the evidence where a search warrant was granted: Rocha, at para. 29. The ITO itself must be considered: Booth, at para. 122. As Doherty J.A. stated in Rocha, at para. 29:
“The approach … should be to look at the ITO and consider first if it is misleading in any way. If so, the court should then consider where it lies on the continuum from the intentional use of false and misleading information at one end to mere inadvertence at the other end.”
 When considering where a misleading statement or material omission lies on this continuum, it is important to remember that police officers are not “legal draftsmen”: Re Lubell and the Queen (1973), 1973 CanLII 1488 (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.), at pp. 190-191.
 In Muhammad, (OCJ) at para. 16, Pringle J. provided the following guidance about what a court might consider when assessing the seriousness of an omission or misstatement in an ITO:
“Clearly, each case must turn on its unique facts. In my respectful view, assessing whether misstatements or omissions fall on the extreme end of the seriousness spectrum may include consideration of:
the intent underlying the affiant’s misstatements or omissions;
the affiant’s adherence to his or her duty of fairness in anex parte hearing, and;
the materiality of the misstatements/omissions to the ITO’s thesis.”
 In this case, the following exchange occurred during the cross-examination of Detective Constable Black:
Q: Why didn’t you, as you did in many other areas of the ITO, why didn’t you provide the address that the vehicle was found in, which is in the surveillance report of 2189 Lakeshore Boulevard West. Why didn’t you put that into the ITO instead of ‘in the area’?
A: I didn’t find it relevant.
 While I accept that Detective Constable Black may have thought it was not necessary to include the time and location of this observation, these omissions were clearly material to the ITO’s thesis. The omitted information was important in assessing whether there were reasonable grounds to believe evidence would be found at unit 407-60 Annie Craig Drive.
 Detective Constable Black had a duty to include these material facts in the ITO. Given the inferences that the issuing justice was being invited to draw, the importance of including the omitted information in the ITO should not have been lost on the affiant.
 In my view, these omissions were more than just “sloppy work”: Herta, at para. 64. The ITO invited “inferences that would not have been drawn or a conclusion that would not have been reached if the omitted facts were disclosed”: Booth, at para. 55. The omissions effectively deprived the issuing justice of the ability to independently assess the sufficiency of the ITO: Rocha, at para. 35. This makes the Charter-infringing state conduct more serious.
 It is necessary to raise one additional concern that I have with the ITO. Detective Constable Black asserted in the ITO that he believed Mr. Reid supported himself by selling drugs. In the same paragraph of the ITO, apparently in support of the conclusion that Mr. Reid was a drug dealer, Detective Constable Black stated “at no time have members seen Adrian Reid attend any form of work or employment during surveillance.” A review of the amplified ITO reveals that the police conducted surveillance on Mr. Reid on only three evenings. Objectively, the fact that the police did not see Mr. Reid attend “any form of work or employment” on a Saturday, Sunday or Monday evening said little about whether Mr. Reid was lawfully employed. Affiants have a duty “to guard against making statements that are likely to mislead the issuing justice”: Morelli, at para. 102. Given the manner in which this information was presented in the ITO (including the failure to disclose when the police first saw Mr. Reid on January 27th), there was a risk that the issuing justice could have been misled about the strength of the evidence that supported Detective Constable Black’s belief.
Impact on the Accused's Charter Protected Rights
 The search of this apartment involved a significant intrusion into a place in which Mr. Reid enjoys a very high expectation of privacy: Grant, at para. 78; Paterson, at paras. 46-50; Rocha, at para. 38. As the Court noted in R. v. Silveira, 1995 CanLII 89 (SCC),  2 SCR 297, at para. 140, “there is no place on earth where persons can have a greater expectation of privacy than within their ‘dwelling-house.’”