[January 27, 2022] Crown Theory of the Case Binds Trial Judge [Reasons by I.V.B. Nordheimer J.A. with David M. Paciocco and Lorne Sossin JJ.A. concurring]
AUTHOR’S NOTE: Although a trial is adversarial in nature, in our system of law, the function of the judge is not to act like one of the adversaries. An accused mounts their defence to meet the case for the Crown. Consequently, a trial judge is bound by the theory of liability advanced by the Crown to some extent. They cannot surprise the accused by returning a verdict of guilty based on a theory of liability not argued before them. Here, the Crown and Defence engaged on a sexual assault charge by a argument that consent was not proven beyond a reasonable doubt. Meanwhile the judge came back and convicted on the basis (not advanced by the Crown) that consent was vitiated. The Court of Appeal overturned this conviction.
 The facts underlying the offences are somewhat unusual. The appellant and the complainant were in a relationship. At the time of the offences, the appellant was using drugs, including crack cocaine, which caused him to have paranoid hallucinations. Uncontested testimony from the complainant established that these hallucinations led the appellant to believe that the complainant was having sexual intercourse with other men while the appellant was with the complainant.
 More specifically, the appellant would be lying in bed with the complainant and would become convinced that the complainant was, then and there, having intercourse with another man. In an effort to convince the appellant that this was not occurring, the complainant would allow the appellant to touch her vagina so that he would be assured that no act of intercourse was taking place.
 With respect to the sexual assault offence, the trial judge concluded that the complainant’s agreement to permit the appellant to touch her sexually was invalid. He said that any consent in this context was “an illusion”. The trial judge based his conclusion on the history of violence in the relationship. More specifically, the trial judge said:
[R.H.] would’ve understood full well that he had a form of control over her; that he had injected so much violence into this relationship, that when his partner acquiesced to him investigating her vagina to satisfy himself that other men were not then presently engaged in sex or had not recently been, he was being allowed to do so because he had a form of power over the complainant, brought about by his violent treatment of her.
 The problem that arises in this case is that neither counsel argued this route to a conviction. This case was not litigated as a vitiation of consent case. The contest was about the factual question of whether the complainant subjectively agreed to the charged sexual activity.
 The Crown’s position was that the complainant was a difficult and reluctant witness at trial who downplayed in her testimony the actions of the appellant towards her. The Crown sought to have the trial judge make his finding of fact relating to her subjective consent based on a statement the complainant gave to the police, that was ultimately admitted at trial under the principles from R. v. B. (K.G.), 1993 CanLII 116 (SCC),  1 S.C.R. 740 (the “KGB statement”). Unlike her evidence at trial that the touching was consensual, in her police statement the complainant said that the touching had upset her. She also said, in response to a leading question from the interviewing officer, that she had not wanted the touching to happen.
 The Crown argued that the complainant’s evidence, through the police statement, should be preferred to the complainant’s evidence at trial. The Crown continued by asserting that the fact that the complainant said, in her police statement, that the touching bothered her constituted a violation of the complainant’s sexual integrity. The Crown concluded by asserting that the fact that the complainant said at trial, and contrary to her police statement, that all of the touching was consensual, should be rejected and should not raise a reasonable doubt.
 In response, the defence argued that the complainant’s police statement was suspect because, at the time, the complainant had a motive to fabricate her allegations.
 I have already set out the vitiated consent theory the trial judge used to convict the appellant of the sexual assault offence. This theory was never advanced by either of the parties, nor did the trial judge raise it with the parties. In convicting on this basis in these circumstances, he visited an unfairness on the appellant. That unfairness has two parts. One is that raising this issue for the first time after evidence and argument were completed did not allow for either counsel, but especially defence counsel, to make any submissions as to the validity of that theory, on the facts of the case. It did not permit counsel the opportunity to provide case authorities on the subject, nor did it permit counsel to refer to evidence that might impact on that theory.
 ... the complainant will also be the primary source for determining whether any apparent consent was freely given. However, the complainant’s view is not the end of the inquiry. For policy reasons, the law may render apparent consent as legally ineffective: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 34.
 All of these principles highlight the need for the issue of consent, and its legal effect, to be canvassed at the trial. This will be especially so where the legal effect of the subjective consent is a live issue. It was not in this case. Consequently, the issue was not canvassed by counsel, either in their questioning of the complainant or in their submissions at the conclusion of the trial. That reality renders the subsequent reliance by the trial judge on the lack of a legally effective consent, leading to a conviction for sexual assault, fundamentally unfair to the appellant.
 The Crown responds to these concerns by pointing out that the trier of fact is not confined to the Crown’s theory in determining liability. To quote the Crown’s factum: “A conviction may be based on an alternative theory of liability not advanced by the Crown so long as it falls within the wording of the indictment and is supported by the evidence”.
 While that is undoubtedly true as a general principle, its application is not without constraint. In particular, that principle does not address the corresponding principle of trial fairness. An accused person is entitled to know the case that they are being asked to meet. It is fundamentally unfair to convict an accused person on a theory of which they are entirely unaware, and to which they have not had the opportunity to respond. On this point, I note that in two of the cases that the Crown relied on for its principle that a conviction can rest on an alternative theory, both this court and the Supreme Court of Canada made it clear that the defence was aware of the alternative theory on which the convictions ultimately rested: R. v. Groot (1998), 1998 CanLII 2151 (ON CA), 41 O.R. (3d) 280 (C.A.), at para. 25, aff’d 1999 CanLII 672 (SCC),  3 S.C.R. 664; R. v. Pickton, 2010 SCC 32,  2 S.C.R. 198, at para. 21. Consequently, there was no unfairness to the accused in those two cases.
 As I have said, it is fundamentally unfair to convict an accused person on a basis of which they are unaware and which they have not had an opportunity to respond. It denies the accused person their constitutional right to make full answer and defence: R. v. Mills, 1999 CanLII 637 (SCC),  3 S.C.R. 668, at para. 69. At the very least, when the trial judge became aware that he might convict on that basis, he ought to have alerted counsel to that possibility and asked for their submissions. That did not happen.
[January 10, 2021] Charter s.8: Single Deal in a Car Not Enough for Reasonable Grounds, Police Notes: Discounted because not Made Individually [J.D. Bascom PCJ]
AUTHOR’S NOTE: Quick deals involving cars in a parking lot used to be the hallmark of a drug deal. Now with various online secondary market trading and sales platforms like Kijiji or Craigslist, people are meeting up to make deals in this manner for all sorts of perfectly legal items. Police justifications for arresting people and searching them have to evolve with the times. Just like the possession of multiple cell phones has become less of a calling card of drug dealing, so is the observation of someone engaging in a quick deal in a car. This is particularly the case when the target only engages in one such interaction before the arrest comes.
Another aspect of this decision is the treatment of police notes created in a drug team. The process of centralized notes created by a designated note-taker who records radio communications while the drug surveillance team makes observations is standard operating procedure in the city of Calgary. After the arrest or ceasing surveillance, officers then go back and add their own notations to the timeline created by the central notetaker and mark that document as their notes. For Judge Bascom, this process created natural problems with their reliability as he could not discern whether they were reporting their own recollections of some confabulated memory amalgamated from their joint notes. Unfortunately, for the CPS, a hive mind is not reality yet and notes created by a group of people are not a useful way of aiding memory in a trial.
 The two issues in this voir dire are the credibility and reliability of the Crown witnesses and whether Constable Fortna had reasonable probable grounds to direct the arrest of Ward and Campbell, thereby triggering a search incident to arrest which resulted in the finding of the controlled drugs and substances which were contained in the vehicle. For the arrest to be lawful the police must comply with section 495(1)(a) of the Criminal Code.
 Mr. Justice Poelman, in the decision of R v Aquila, 2019 ABQB 782, stated as follows: ...
 There are two elements required to establish reasonable grounds for arrest. The arresting officer must subjectively have reasonable and probable grounds on which to base the arrest, and those grounds must be justifiable from an objective point of view: R v Storrey, 1990 CanLII 125 (SCC),  1 S.C.R. 241, at 250-251,  S.C.J. No. 12. Determining whether the grounds are justifiable from an objective point of view requires taking into account the position of the arresting officer and that officer’s training and experience: Storrey, at 250-251; R v Rajaratnam, 2006 ABCA 333 at para 25, 397 A.R. 126. “When considering whether an officer’s subjective belief is objectively reasonable, the court looks at the objectively discernable facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer”: R v Canary, 2018 ONCA 304at para 22, 361 C.C.C. (3d) 63 citing as authority R v Chehil, 2013 SCC 49, at paras 45-47, 3 S.C.R. 220.
 The standard of proof for reasonable grounds is reasonable probability rather than proof beyond a reasonable doubt or a prima facie case: R v Debot, 1989 CanLII 13 (SCC),  2 S.C.R. 1140, at 1166, 52 C.C.C. (3d) 193. The test has been described as being met when, on all of the circumstances known to the officer, credibility-based probability replaces suspicion: Debot, at 1166; R v Ha, 2018 ABCA 233 at paras 34 and 63, 363 C.C.C. (3d) 523. ...
 The defence argue that based on a review of all of the evidence Constable Fortna did not have the reasonable and probable grounds to arrest Ward and Campbell. Constable Fortna provided reasons for the basis of his reasonable and probable grounds which was the movement of the vehicle in the Wendy’s parking lot followed by observations made by members of the DUST team of a female entering into the rear of the white Honda Accord. Remaining for a short period of time and then leaving. Constable Fortna testified that based on his experience this was a drug transaction. As stated in R v Ha, 2018 ABCA 233, referred to by Justice Poelman in Aquila, the existence of other plausible innocent explanation does not legally or automatically negate credibility based probability. However, police officers must base their reasonable probable ground on all factors in existence at the time. In this particular case there was nothing special about the location of this particular meet. The white Honda motor vehicle had never been seen at any previous sales in this particular operation. The registered owner of the vehicle was not known to the police. The surveillance people could not identify how many people were in the car or whether they were targets the team had dealt with on previous occasions.
 In R v Quilop, 2017 ABCA 70, the Court of Appeal found that the trial judge erred in finding reasonable and probable grounds based on a conclusionary statement by an anonymous informant plus three observations over two days. Two of the observations were said by the police to be consistent with drug trafficking.
 The Court stated the following:
 The Crown argued that it would be difficult to imagine an innocent explanation for what the police observed. We disagree. People buying and selling items online, from small collectibles to hockey tickets, for example, often conduct transactions in their homes or cars or on the street. And such transactions can be extremely brief where the parties have previously agreed on price or where the transaction is conditional upon a cursory inspection by the buyer.... [Emphasis by PM]
 The same could not be said about the evidence in the case before us. We therefore conclude that the trial judge erred in finding that the grounds for the appellant’s arrest were objectively justifiable.
 The Court quoting from R v Mark, 2017 ONSC 2206 para 68: “the reasonable and probable grounds necessary to effect a lawful arrest may be based, in part, upon information obtained by the police after a decision has been made to arrest the accused, but before the arrest is actually effected.”
 Analysing this case in the most favourable light for the prosecution we have observation by members of the DUST team of a white Honda Accord in an area close to a Wendy’s restaurant. The location was established by the individual on the target number. The DUST team consisted of experienced drug investigators. Constable Jones concluded this was the vehicle which contained the target number based on the fact that it was the only vehicle moving within the parking lot. Constable Jones had made previous buys of drugs after calling the target number. On previous occasions the sellers had occupied a different vehicle than the white Honda Accord. On previous occasion Constable Jones met with two individuals when he purchased drugs. Previous purchases had occurred at other locations. Constable Jones could not determine how many people were in the white Honda. The area on the corner of 25th Street and Peigan Trail contained a Denny’s restaurant, a MacDonald’s restaurant, a Wendy’s restaurant, Big Bucket Car Wash and other retailers.
 Constable Jones’s identification of this white Honda containing the people he was to meet was a simple guess and did not ever rise to the level of a suspicion. Nothing in Constable Jones’s experience or training could raise these observations to a reasonable suspicion.
 Constable Fortna also sees this vehicle when it is parked in the Wendy’s parking lot. He testifies that the vehicle backs up and then travels north out of the Wendy’s parking lot into the larger parking lot containing Opa of Greece and the Big Bucket Car Wash. Once again his belief that this was the vehicle containing the target phone is a guess and not substantiated by any objective evidence.
 Constable Fortna testifies as to receiving information from other team members that had followed the white vehicle. He received information that the vehicle travelled to the Sundance area. A woman entered the vehicle and after a short time left. Constable Fortna testifies this short meet in his “experience as a drug investigator was a drug deal”.
 Constable Fortna testified as follows: ...
When the Honda Accord left, it left after they told Constable Jones they didn’t see him and they were leaving. My team conducted surveillance on the Honda Accord with Mr. Campbell and Mr. Ward inside of it, where they again conducted a short meet which - - which, in my - - my experience as a drug investigator, was a drug deal.
 As stated in R v Ha the existence of other plausible or innocent explanations for police observation does not preclude an experienced police officer having reasonable probable grounds, however the officer must consider all circumstances known to him so a Court can weigh whether his subjective suspicion reaches the level of credibility-based probability.
 Here the experience of Constable Fortna would not provide him with a basis to identify the white vehicle as containing the target phone. This was simply a guess on his part as it was with Constable Jones. The observation of the female entering the back seat of the vehicle would be consistent with a drug deal, however this happened only once. Constable Fortna could not conclude with such certainty that this was a drug deal. It was suspicious but not as The Supreme Court of Canada stated in Hunter and Southam, 1984, SCC “the point where credibility based probability replaces suspicion”. Suspicion the Court explained “is no more than a feeling that an assumed set of facts might possibly obtain”. It is important for a judge not to substitute the more demanding reasonable grounds standard with the less onerous standards of reasonable suspicion. As stated in R v Chehil, (2013) 3 SCR:
“The onus is on the Crown to show that objective and ascertainable facts rise to the level of reasonable suspicion, such that a reasonable person, standing in the shoes of the police officer, would have held a reasonable suspicion of criminal activity. An officer’s training and experience may provide an objective experiential, as opposed to empirical, basis for grounding reasonable suspicion. However, this is not to say that hunches or intuition grounded in an officer’s experience will suffice, or that deference is owed to a police officer’s view of the circumstances based on her training or experience in the field. A police officer’s educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard.”
 Here the combined observations of this white vehicle would be no more than suspicious.
 I have found that these observations by Constable Fortna and the members of the team would be suspicious, but would not rise to the level of reasonable and probable grounds for the arrest of Ward and Campbell.
Police Officer Notes
 Constable Clarke, Constable Sherman and Constable Stevenson were other members of the DUST team who provided evidence as to their observations. Constable Clarke testified that she observed the white Honda perform a U-turn east of the Opa restaurant. Under cross examination she indicated this was not in her notes. Constable Sherman testified that the notes of the entire team were shared. He testified he received an email from Constable Fortna which contained the notes that Constable Fortna had made as street boss.
 From the evidence heard in the voir dire it appeared that the notes of the team members are prepared after the fact by a process of reviewing Constable Fortna’s notes which were emailed to each of the members. This process taints their evidence with regard to reliability and I question whether the team member’s testimony is their own recollection or a confabulation of information originating from Constable Fortna’s notes. I therefore conclude and find that the evidence from the Crown witnesses to be unreliable and in the case of Constable Fortna and Constable Dowd not to be credible. [Emphasis by PM]
 I cannot rely on the Crown’s evidence either being credible or reliable. Even if their testimony was reliable and credible a review of all the evidence would still lead to a conclusion that there was insufficient grounds to arrest pursuant to section 495(1)(a) of the Criminal Code. That being said I find there’s a breach of section 9 of the Charter and a further breach of section 8 of the Charter concerning the search incident to arrest. Having made these findings, I must conduct an analysis to determine if the evidence is admissible despite the breaches....
 In summary I have concluded the arrest of both accused was without reasonable and probable grounds and therefore a breach of their section 9 Charter rights. I have further concluded that as a result of the section 9 breach that the search incident to arrest was unlawful in that it was conducted without warrant and in violation of section 8. I have conducted a Grant analysis and I conclude that all evidence seized from the vehicle is excluded from the trial proper.
[January 24, 2022] De Minimis No Curat Lex [Justice A.D. Hilliard]
AUTHOR’S NOTE: The law does not concern itself with trifles, except when it ironically creates a specific category of law to deal with such trifles. While the ONCA and the SCC have, appropriately, yet to opine on "trifles" law, many lower courts have been applying these principles for decades. This case represents a persuasive use of the legal category on a neighbour dispute that involve spraying each other with water on home security wherein hysterical overacting ensued. Sometimes people just need to move.
The offence – assault:
 A long-standing dispute between the accused, Ms. Haynes, her common law partner, Mr. McMaster, and their neighbours, Mr. Wilson, the complainant, and his wife, Mrs. Wilson, culminated in an incident on June 13, 2020 when Ms. Haynes sprayed Mr. Wilson with her garden hose. Ms. Haynes did not dispute that she sprayed water at Mr. Wilson on the day of the incident.
 Mr. Wilson’s evidence was that the water from the garden hose was scalding hot as a result of the hose having sat out in Ms. Haynes’ yard for hours in the summer sun. He testified that the water was sprayed directly into his eyes from a distance of no more than 2 feet. Mr. Wilson stated that the water injured his eyes to the extent that he had to go to his doctor for medical examination. According to Mr. Wilson, his doctor prescribed two medications, although he could not recall what he had been prescribed. Mr. Wilson stated that he suffered headaches and sensitivity to light for days after the incident.
 Five video clips were played as part of the Crown’s evidence. Ms. Haynes and Mr. McMaster have video surveillance cameras mounted on their house which record video from different angles throughout the day. These cameras were mounted by Mr. McMaster as a result of the ongoing dispute with the Wilsons and multiple attendances by police and by-law enforcement officers. All of the video surveillance footage was time and date stamped.
 The video clips were the most compelling evidence in this trial. I could see the interaction between Mr. Wilson and Ms. Haynes, which lasted approximately 90 seconds, during which Ms. Haynes did indeed spray her garden hose in the direction of where Mr. Wilson was standing. Based on that evidence, and Ms. Haynes’ own concession during her testimony that she deliberately sprayed water at Mr. Wilson from her garden hose, the offence of assault is made out beyond a reasonable doubt.
De minimus non curat lex
 The Ontario Court of Appeal and the Supreme Court of Canada have both declined to make a definitive pronouncement on the availability of the defence of de minimus non curat lex to a criminal offence:
The principle de minimis non curat lex is of considerable antiquity. The first record of the principle in the law reports is found in Taverner v. Dominum Cromwell (1594), 78 E.R. 601. Over two centuries later, the meaning of the expression was amplified in a case involving the seizure of a British ship for breach of British revenue laws by exporting logwood from Jamaica to the United States, which prohibited its importation: The Reward (1818), 2 Dods. 265, 165 E.R. 1482. In rejecting an invitation by the owners of the ship to reverse its condemnation because of the relative insignificance of the amount of logwood in issue, Sir Walter Scott (later Lord Stowell) said, at 269-270 Dods., 1484 E.R.:
The Court is not bound to a strictness at once harsh and pedantic in the application of statutes. The law permits the qualification implied in the ancient maxim, de minimis non curat lex. Where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked.
... In R. v. Hinchey, 1996 CanLII 157 (SCC),  3 S.C.R. 1128, 111 C.C.C. (3d) 353 (S.C.C.), which involved a charge of corruption of a government employee, L'Heureux-Dubé J., writing for the majority of the Court, acknowledged the possibility that the de minimis principle might operate as a defence to criminal culpability, but specifically left the question open. ...
 A number of judges of both the Court of Justice and the Superior Court of Justice in Ontario have applied the common law doctrine of de minimum as a full defence against a criminal offence. Although many of those decisions echo L’Heureux-Dubé J.’s comment in Hinchey, that there is some debate about the availability of de minimus as a defence in criminal proceedings, judges have nonetheless applied the common law doctrine and dismissed the charges before the court.
 It is also relevant to consider the decision of R. v. McCaffrey, wherein Justice Aitken, sitting as a summary conviction appellate court, found that “[i]t was well within the discretion afforded to the trial judge in this case to determine whether it was appropriate to allow the common law defence of de minimis non curat lex.” This finding by Justice Aitken is an appellate ruling on the availability of the de minimis defence in a criminal proceeding.
Application of de minimis in this case
 The question then becomes was the assault of such a trifling or trivial nature that there should be no criminal sanction. It is a higher threshold then finding that an absolute discharge should be granted after a finding of guilt. An absolute discharge is still a criminal sanction. A finding of guilt is registered and a record of the discharge is publicly accessible, albeit for a limited period of time.
 ... De minimus should be applied only in situations where the facts accepted support a conclusion that the act committed is of such a minimal or inconsequential nature that there should not be even a finding of guilt.
 The evidence of Mr. Wilson as to the nature and consequences of the assault was not credible. I found Mr. Wilson’s evidence to be highly exaggerated and inconsistent with the evidence of other witnesses.
 It is also clear from the video evidence that the proximity of the hose nozzle out of which water was being sprayed was not as described by Mr. Wilson – less than two feet from his face directly into his eyes. The spray pattern from the hose was not one of a jet stream but rather a diffuse spray of water as seen by the droplets I could observe on the driveway. The force of the stream of water would have been minimal by the time it travelled the distance between where Ms. Haynes was holding the nozzle and Mr. Wilson was standing on the other side of the hedge. My conclusion as to the spray pattern from the hose is supported by the evidence of both Mr. McMaster and Mrs. Wilson that they were both sprayed incidentally during the incident.
 Mr. Wilson’s utterances and audible reaction to being sprayed with water were deliberate and calculated. The screaming and moaning that was audible on the video surveillance and the cell phone video footage obtained from Mrs. Wilson was disproportionate and exaggerated to the point of theatrics.
 I accept that some water landed on Mr. Wilson and that some water may have entered his eye or eyes, despite the expected autonomic response for the eyes to close when water can be seen to be sprayed in one’s direction. However, I find that the amount of water that impacted Mr. Wilson such as to make out the actus reus of assault was of such a trivial and trifling nature that a finding of guilt is not appropriate in the circumstances.
 The application of the doctrine of de minimus, for all of the reasons set out above, resulted in the dismissal of the charges as indicated orally at the conclusion of trial.