This week’s top three summaries: R v Seyeon Lee, 2022 NSCA 3: 11(b) for late comp #contact, R v Kruger, 2023 ABPC 8: #severance and testimony, and R v Pauli and Chambers, 2023 ONSC 621: s.8 ITO 1 visit by #dealer
This week's top case deals with a Charter remedy for delay in the prosecution. For great general reference on the law of Charter remedies, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
R v Seyeon Lee, 2023 NSCA 3
[January 19, 2023] Charter 11(b): Crown failure to Contact Complainant Early [Reasons by Beaton J.A. with Beveridge and Farrar JJ.A. concurring]
AUTHOR’S NOTE: Busy prosecutors sometimes do not get to pay attention to their files until a couple weeks or even days before trial. With the Jordan framework in place, and this case, that is a potential recipe for defence success. Here the need for adjournment arose due to the complainant moving out of country without notification to the Crown and due to provision (from the complainant) of additional text messages shortly before the trial. Both circumstances were unknown to the Crown. If the Crown's lack of attention to the complainant at an early point contributes to the later adjournment because earlier contact had the chance to reveal problems that could have been ameliorated, then the Crown will bear partial fault for the adjournment - this will not justify for an exceptional circumstance. This is so despite the problems arising being "unexpected" or even "unforeseen".
Reasons for judgment:
[2] On November 24, 2021, Mr. Lee succeeded on his application to stay the charge. The Honourable Judge Ann Marie Simmons (“the judge”) was persuaded the respondent’s s.11(b) Charter right to trial within a reasonable time had been breached. She determined the trial, scheduled to begin the following week, had exceeded the presumptively reasonable delay ceiling of 18 months prescribed in R. v. Jordan, 2016 SCC 27. The judge concluded the Crown had not met its burden to rationalize that delay.
[9] The applicable standard of review was described by Derrick, J.A. in R. v. Pearce, 2021 NSCA 37:
[53] The standard of review for s. 11(b) appeals is a three-step process as this Court has stated previously: palpable and overriding error for findings of fact and the categorization or attribution of delay, and correctness for the allocation or characterization of the delay and the ultimate determination of whether the delay was unreasonable and warrants a judicial stay. Deference is owed to a trial judge’s assessment of responsibility for the delay because it involves findings of fact.[57] The above accords with the Supreme Court of Canada’s recent statement in R. v. Yusuf, 2021 SCC 2, that the Ontario Court of Appeal, in the decision being appealed from (cited as R. v. Pauls, 2020 ONCA 220), had “applied the appropriate standard of review. In Pauls, the standard of review was described:[40] ...Deference is owed to a trial judge's underlying findings of fact. Characterizations of periods of delay and the ultimate decision concerning whether there has been unreasonable delay are reviewable on a standard of correctness (cites omitted).
Exceptional circumstances
[17] Jordan instructed judges that exceptional circumstances outside the Crown’s control are those that “are reasonably unforeseen or reasonably unavoidable” and for which “Crown counsel cannot reasonably remedy the delays” arising therefrom (para. 69).
[20] The Crown correctly asserts the judge was required to consider whether the circumstances were unavoidable or unreasonable, but not both. It points to the judge’s analysis of exceptional circumstances and her use of the phrase “reasonably unavoidable” with the phrase “reasonably unforeseen”. The Crown says the linking of the two concepts constitutes error on the judge’s part. It says once the judge determined something was unforeseen, she did not then need to consider whether it was unavoidable, and should have instead proceeded to the second step of the analysis. Specifically, once the judge found the adjournment of the November 2020 trial was reasonably unforeseen due to the victim’s memory difficulties, she did not need to then consider also the question of whether that delay was unavoidable.
[140] I am not satisfied that the problem was unavoidable. Unexpected, yes, but not unavoidable. Had the Crown made contact with the complainant before mid to late September, the events of October and November described above may not have occurred.[144] In terms of whether the memory issue was unexpected, and whether this could be seen as an exceptional circumstance justifying the delay in this case, it is fair to say that the Crown would not be expected to anticipate this very serious memory problem reported in the October 30th email to the officer in charge.[146] As I have explained, what happened here had two components. The complainant was not resident in Canada, and she experienced a serious problem with her memory of the incident. As above, had the Crown made contact with the complainant earlier, the fact that she was in Korea could've been addressed early on. Earlier contact with the complainant may have well brought the memory issues to the forefront much earlier, as I have described above. Accordingly, the problems could've been mitigated and were not truly unavoidable.
[147] The problem with respect to the memory was unforeseeable, but that begs the question of when the Crown could have or should have become aware of the problem. The example given by the majority in Jordan is not analogous to this case. A witness who unexpectedly recants while testifying is a reference to a witness who was not expected to recant prior to the start of the trial. It suggests [sic] prior contact with and preparation of the witness in advance of the trial leading to the unexpected result that the witness recants at trial.
[156] In sum I return to Jordan in [sic] the Supreme Court of Canada's direction that discrete exceptional events which are reasonably unforeseeable or reasonably unavoidable are to be deducted from the delay period to the extent that they cannot be reasonably mitigated by the Prosecution or the justice system. If they can be mitigated but are not, then that portion is not deducted from the delay.[157] I am not persuaded to find that the discrete event at issue here was reasonably unavoidable or reasonably unforeseen as I have discussed. Accordingly the delay occasioned by the trial being adjourned should not be deducted from delay in my view.
[22] The judge’s reasons make it clear she was not requiring that she be satisfied of both the unforeseen and the unavoidable nature of the events she determined factored into the adjournment of the trial in November 2020. The Crown has not persuaded me there is any error in this regard.
[27] The Crown’s argument would seem to imply it was the complainant’s obligation to reveal the existence of additional materials to the police, thereby absolving the Crown of responsibility, and thus constituting exceptional circumstances. This begs the question as to how the complainant would have been in a position to determine what might be relevant to the police or the Crown in their prosecution of the case? The suggestion the Crown does not bear responsibility for that aspect of the delay was not persuasive to the judge. In her analysis the judge was clear as to why she was attributing certain delay to the Crown, rather than concluding exceptional circumstances were in play. I see no error in the judge having found as she did.
R v Kruger, 2023 ABPC 8
[January 16, 2023] Severance and Testimonial Intent of the Accused [Judge A.A. Fradsham]
AUTHOR’S NOTE: This case is a great short summary of severance principles applicable to the testimonial intent of the accused. As long as the stated intent to testify is "objectively justifiable" looking at the circumstances of the case, the severance application is likely to succeed. An accused should not have to choose between their right to silence on some charges and advancing a valid defence to others.
Introduction
Count 1: On or about the 22nd day of July, 2022, at or near Calgary, Alberta, did unlawfully wound, maim, disfigure, or endanger the life of Kelly Okeynan, thereby committing an aggravated assault, contrary to section 268 of the Criminal Code of Canada.
Count 2: On or about the 11th day of August, 2022, at or near Calgary, Alberta, did unlawfully assault Kelly Okeynan, contrary to section 266 of the Criminal Code of Canada.
Count 3: On or about the 11th day of August, 2022, at or near Calgary, Alberta, did wrongfully and without lawful authority, for the purpose of compelling Kelly Okeynan to abstain from doing anything that he or she had a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing, use violence or threats of violence to that person or their intimate partner or children, or injure the person’s property, contrary to section 423(1)(a) of the Criminal Code of Canada.
[4] I granted that application on January 9, 2023 and promised written reasons for that decision. These are those Reasons.
Analysis
“(3) The court may, where it is satisfied that the interests of justice so require, order (a) that the accused or defendant be tried separately on one or more of the counts....”
[8] In 2009, the Supreme Court of Canada set out a non-exhaustive list of factors to be considered by a court as it works towards determining whether a particular applicant has met his or her onus under the section. At paragraphs 16-18 of R. v. Last [2009] 3 SCR 146, Justice Deschamp, speaking for the entire panel of the Court, said:
[16] The ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance is required in the interests of justice, as per s. 591(3) of the Code. The interests of justice encompass the accused’s right to be tried on the evidence admissible against him, as well as society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.[17] Courts have given shape to the broad criteria established in s. 591(3) and have identified factors that can be weighed when deciding whether to sever or not. The weighing exercise ensures that a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial. It is important to recall that the interests of justice often call for a joint trial. Litchfield, where the Crown was prevented from arguing the case properly because of an unjudicial severance order, is but one such example. Severance can impair not only efficiency but the truth-seeking function of the trial.
[18] The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served in a particular case, avoiding an injustice. Factors courts rightly use include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co-accused persons: R. v. E. (L.) (1994), 1994 CanLII 1785 (ON CA), 94 C.C.C. (3d) 228 (Ont. C.A.), at p. 238; R. v. Cross (1996), 1996 CanLII 5992 (QC CA), 112 C.C.C. (3d) 410 (Que. C.A.), at p. 419; R. v. Cuthbert (1996), 1996 CanLII 8341 (BC CA), 106 C.C.C. (3d) 28 (B.C.C.A.), at para. 9, aff’d 1997 CanLII 397 (SCC), [1997] 1 S.C.R. 8 (sub nom. R. v. C. (D.A.)).
[10] The issues raised by the accused in support of his application to sever count 1 from counts 2 and 3 are as follows:
(2) Counsel for the accused submitted that “it is anticipated that Mr. Kruger will testify with respect to the aggravated assault charge...and articulate a defence of self-defence. It is not anticipated that Mr. Kruger will give evidence with respect to the acts complained of under Counts 2 and 3....”. I respectfully adopt the comments of Justice Yamauchi in R. v. Cooper 2011 ABQB 316, at paragraph 57: “The Applicant’s stated intention to testify on one count but not another is a fact that deserves significant weight. However, it is not determinative in a severance application: Last at para 27. This Court must decide whether that stated intention is objectively justifiable or, even if it is, whether this stated intention is outweighed by other factors that show that the interests of justice require a joint trial: Cross at paras 49-54. Last at para. 26, reminds us that ‘[t]he burden on the accused is to provide the trial judge with sufficient information to convey that, objectively, there is substance to his testimonial intention.’ The Applicant has met that requirement.” In the case at bar, I too am satisfied that the accused’s stated “testimonial intention” is objectively reasonable. Requiring the accused to have one trial in respect of all three counts on the Information will likely require him to make a choice between his section 11(c) Charter right to silence in respect of counts 2 and 3, and his section 650(3) right to make full answer and defence in respect of count 1. I make one additional comment on this aspect of the severance application. The Crown submitted that I could address the accused’s concerns by restricting the Crown’s ability to cross-examine the accused; that is, I could prevent the Crown from cross-examining the accused on matters related to Counts 2 and 3. With respect, I am of the view that such an approach would be troublesome. First, as will be seen below, the Crown sees a connection between Count 1 and Counts 2 and 3. It would therefore be difficult for the Crown to treat these matters as watertight compartments. Second, the right of cross-examination is to be jealously guarded (see: R. v. Lyttle 2004 SCC 5; R. v. Shearing 2002 SCC 58; R. v. AJR [1994] 2 OR (3d) 405 (ONCA); R. v. Fast 2022 ABCA 33). An improper restriction of the right to cross-examine will often lead to an order for a new trial: R. v. RV 2019 SCC 41. In the case at bar, there seems to be no compelling reason to artificially restrict the Crown’s right to cross-examine when there is an alternate, and, in this case, not disruptive, course of action (severance of the counts) which will preserve both the rights of the accused and the Crown.
(1) The similarities between (a) the events alleged in Count 1, and (b) the events alleged in Counts 2 and 3, are that the accused and the complainant are the same. The Crown submitted that the utterance of the word “rat” by the accused towards the complainant referred to the incident alleged in Count 1. The Crown submitted (in its written material): “The Crown cannot prove the essential element of intent in relation to count 3 without making reference to count 1. It is necessary for the Court to have context in order to understand what is being alleged. The essential element of count 3 relates to count 1 in examining mens rea of the accused when he allegedly referred to the victim as a ‘rat’ prior to the assault...The Crown does not advance the factual connection between these counts based on similar fact evidence. Rather the reliability of the evidence pertains to extrinsic misconduct in order to establish intent on count 3 and challenge credibility on count 1 (should the accused advance that defence).” In my view, holding a trial for Count 1 separate from the trial held for Counts 2 and 3 will neither prevent, nor greatly inconvenience, the Crown in the effective prosecution of these matters. Evidence of “context” can be easily led in a trial on Counts 2 and 3.
(2) Two trials will take longer than one trial. That may be true, but, in the facts of this case, the additional time needed for two trials is not significant.
[13] When I assess all the relevant factors, I am satisfied, on a balance of probabilities, that it is in the interests of justice that count 1 be severed from counts 2 and 3. An order for severance will not materially inconvenience either the Crown or the Court system, and it will protect the accused’s right to make full answer in defence, and to exercise his rights under section 11(c) of the Charter.
R v Pauli and Chambers, 2023 ONSC 621
[January 24, 2023] Charter s.8: Visits by a Drug Dealer to a Residence do not Provide Reasonable Grounds [Justice M.D. McArthur]
AUTHOR’S NOTE: Although there are circumstances where a single home visit by a drug dealer can be sufficient (eg. when carrying large bag from that residence that matches an item seized later with drugs), with just a series of regular visits with no indicators of drug trafficking there is not sufficient grounds to grant an ITO for a residence search. This is so despite there being a great case for arresting the drug dealer otherwise.
RULING ON SECTION 8 APPLICATION
Background
[2] The information from the confidential informants basically indicated that Duane Lewis was selling cocaine and methamphetamine and drove a grey Nissan automobile. Mr. Lewis had a criminal record for trafficking substances and conspiracy to traffic.
[3] An initial set of search warrants were sought and obtained on September 29, 2020 and were valid until October 2, 2020. These warrants did not reference 224 Elgin Street East, St. Mary’s address. The Information to Obtain (ITO) for both set of search warrants referenced earlier surveillance that involved locations in Kitchener, Stratford, Woodstock and elsewhere. The latter ITO added the St. Mary’s address.
[4] On October 4, 2020, Mr. Lewis was observed driving to a location in the northeast area of London for 16 minutes and then leaving and driving to 224 Elgin Street East, St. Mary’s, the residence of Ms. Pauli where Mr. Lewis remained for 2 hours and 28 minutes. He departed that location and drove toward Stratford when he was stopped by police and arrested and found to be in possession of 174 grams of cocaine, 404 grams of methamphetamine, 55-6 milligram hydromorphone pills, 2-3 milligram hydromorphone pills and one 12 milligram hydromorphone pill.
The Legal Principles
The Issue – sufficiency of evidence
Analysis
The ITO in issue
-
- Mr. Lewis attending 78 Guelph Street, Stratford, the residence of an individual known to be involved in the drug culture and who had been convicted of drug possession and possession for the purpose of trafficking;
- Mr. Lewis attending 141 Brydges Street, the residence of a person was known to be convicted of drug possession multiple times;
- Mr. Lewis attended a specific trailer and campground site in Kitchener. While there, another individual arrived and a hand-to-hand transaction with Mr. Lewis was observed to take place at the individual’s vehicle over a seven-minute period. Mr. Lewis is also observed at the trailer site in relation to other brief periods of Mr. Lewis meetings with individuals;
- Mr. Lewis’ attendances at these locations or the other individuals’ attendances at Mr. Lewis’s residence was numerous and of a brief duration from a few minutes to less that a 1⁄2 hour and usually in the shorter part of this range of 3 to 5 minutes.
Events of October 4 and 5, 2020
[20] The ITO specifically outlines the grounds to believe things sought will be present at specific locations, namely;
b. 224 Elgin Street East, St. Mary’s in paragraphs 86 to 90 of the ITO which, in summary, are as follows:
- The affiant believes methamphetamine and cocaine will be located along with packaging, paraphernalia to weight, traffic and administer these substances including cell phones, computers and other offence-related property;
- On dates in September 2020, Mr. Lewis was observed by surveillance attending 224 Elgin Street East, St. Mary’s on numerous occasions. The cell phone tracking data on October 4th is as outlined above. Mr. Lewis was found in possession of the substances when stopped operating his vehicle after being at this residence. [Emphasis by PJM]
Discussion and Findings
[22] Secondly, the tracking data of Mr. Lewis’s vehicle to London for October 4, 2020, without any other supportable indications such as surveillance or other evidence, leaves the court to speculate on the source(s) of the substances in Mr. Lewis’s possession and, in any event, do not advance the connection of the residence, the property, its outbuildings or its occupants to any drug activity or association other than mere suspicion. Simply put, without other proximate context, a court cannot do more than find this as mere suspicion.
Sufficiency and Section 8 Charter
Section 24(2) Charter
1. The seriousness of the Charter infringing state conduct;
2. The impact of the breach on the Charter protected interests of the accused; and
3. Society's interest in the adjudication of the case on its merits.
