The Defence Toolkit – January 8, 2022

This week’s top three summaries: R v Kuntz, 2021 ONCA 903: #causation and diagnosis, R v Van Deventer, 2021 SKCA 163: bare #denial W(D), and R v Jeyakanthan, 2021 ONSC 8250: hot potato #possession

R v Kuntz, 2021 ONCA 903

[December 17, 2021] Criminal Negligence Causation - Diagnosis of Exclusion (Drowning) [Reasons by Janet Simmons J.A. with P. Lauwers and G. Pardu JJ.A. concurring]

AUTHOR’S NOTE: Causation in a death-related cause is usually proved by the standard of substantial contributing cause (ie. it doesn't have to be sole cause). In this case the diagnosis of drowning complicated the result and resulted in an acquittal. Drowning is a diagnosis of exclusion. This means there is no physiological result of drowning that the medical examiner can point to that proves the cause of death. Instead, they exclude other potential causes by reference to evidence such as reports of the body at the time of death. This introduces significant reliability concerns for these sorts of diagnoses when they are relied on for proof in a circumstantial case. Herein, the some exclusionary underlining for the opinion being uncertain caused an acquittal on appeal.

Introduction

[1] ... Mr. Yeung was 41 years old at the time and a long-time resident of Tamaracks. He suffered from Smith-Magenis syndrome, a genetic disorder that causes physical, mental and behavioural issues.

[2] The appellant was the overnight attendant on duty at Tamaracks when Mr. Yeung died. Shortly after 1 a.m. on April 22, 2016, the appellant assisted Mr. Yeung in getting into the bathtub because Mr. Yeung had soiled himself. According to the appellant, Mr. Yeung became aggressive with him when he attempted to check the cause of what appeared to be bleeding from Mr. Yeung’s mouth. In accordance with what the appellant testified was his understanding of the appropriate protocol, he left Mr. Yeung alone in the bathtub for approximately 16 minutes to socially isolate him and allow him to calm down. This, however, was not in compliance with Tamaracks’ “eyes-on” bathing protocol for Mr. Yeung, which was premised on a risk of seizure or falling asleep in the tub.

[3] According to the appellant, when he returned to the bathroom, Mr. Yeung was submerged in the bathtub struggling to breathe. The appellant called 911 and followed the instructions of the dispatcher. Mr. Yeung was pronounced dead at 2:06 a.m.

[4] In November 2016, the appellant was charged with criminal negligence causing death....

[5] Concerning causation, the Crown relied on the evidence of Dr. Noel McAuliffe, the forensic pathologist who conducted Mr. Yeung’s autopsy. Dr. McAuliffe opined that the immediate cause of death was drowning. In his post‑mortem report he identified Smith-Magenis syndrome as a significant contributing condition. During cross-examination, Dr. McAuliffe acknowledged he could not specify what led to the drowning. Nor could he eliminate a sudden cardiac event as the cause of death.

Facts

[13] In 2010, a special unit was built for Mr. Yeung on the lower level of Tamaracks. The unit had its own bedroom, bathroom and living space as well as an area of the backyard fenced off from the space used by other residents.

The Bathing Protocol

[14] It was undisputed at trial that Mr. Yeung was capable of managing himself physically while in the bathtub. However, the Tamaracks’ Behavioural Support Plan and Plan of Care for Mr. Yeung mandated “eyes on” supervision of Mr. Yeung while in the bathtub because his file indicated a history of seizures and a risk that he could fall asleep while in the bathtub.

[15] The Plan of Care indicated in bold capitalized letters that “Jack[ie] requires eyes on supervision at all times when i[n] the bathtub due to his potential for seizures and falling asleep.” An information package for overnight awake staff specified that “[a]t no time is [Mr. Yeung] to have unsupervised use of his bathtub due to a potential risk of seizures and drowning.”

[16] As a result of this protocol, Mr. Yeung’s unit had a separate water shutoff behind a locked panel that allowed staff to control whether water was available for his bathtub. Staff were instructed not to let the water keep running and to ensure that the water was shut off when he was not in the bathtub.

[17] Despite the protocol, there was no record of Mr. Yeung having a seizure while at Tamaracks.[1] Further, although staff members, including the appellant testified to having seen Mr. Yeung fall asleep while in the bathtub, there was no evidence of him ever having to be rescued because of falling asleep in the bathtub.

CCTV

[19] ... Mr. Yeung entered the bathroom at 1:10:15 a.m. Over the next few minutes, the appellant entered and exited the unit several times, checking in with Mr. Yeung in the bathroom. Among other things, he obtained cleaning products to clean the bed. At 1:16:23 a.m. the appellant entered the bathroom. Fifteen seconds later he appeared to lean down, then straightened up and left the bathroom and the unit.

[20] The appellant returned to the unit approximately 16 minutes after leaving. He re-entered the bathroom shortly before 1:34 a.m. The camera did not capture any further activity until the appellant opened the door approximately four minutes later. Mr. Yeung was lying on the floor. Over the next couple of minutes, the footage revealed the appellant speaking on the phone, bringing Mr. Yeung into the bedroom and performing CPR until EMS workers arrived.

Cause of Death Evidence

[21] In examination-in-chief, Dr. McAuliffe confirmed that, in his opinion, the immediate cause of death was drowning. Further, he had information that Mr. Yeung had a disability known as Smith-Magenis syndrome, which he had identified as a significant condition contributing to death in his post-mortem report.

[22] Dr. McAuliffe explained that drowning is a form of asphyxia in which the air supply to the body is cut off as a result of submersion in a fluid, usually water. The average person will not survive for longer than five or six minutes once their air supply is cut off; however, the length of time it takes to drown can vary from person to person. For example, a person can die almost immediately from inhaling cold water into the larynx which could stop the heart: the submersion in water in this circumstance would fulfill the criteria for drowning.

[23] During cross-examination, Dr. McAuliffe confirmed that drowning is a diagnosis of exclusion based on ruling out other causes of death and taking account of the circumstances surrounding the death. He explained, “[t]here is no specific anatomical finding for drowning … [d]rowning is essentially a diagnosis of negative findings conjoined with appropriate circumstances.”

He was found lifeless, fully submerged in a bathtub. There was no other sign of injury to the body. A toxicology screen shows no significant abnormality and there is no other evidence of injury on the body. [Emphasis added.]

[25] Dr. McAuliffe was cross-examined about the various risk factors Tamaracks had identified for Mr. Yeung while in the bathtub. When advised there was no documented incident of Mr. Yeung suffering a seizure during the ten years he was in care, Dr. McAuliffe said that the likelihood of a seizure “contributing to his demise would have to be qualified as a very remote or the remotest possible connection.”

[27] When asked what he would expect to happen if Mr. Yeung had fallen asleep in the bathtub taking account of the medications he was on, Dr. McAuliffe responded:

Well, I think in most circumstances one would immediately wake up. If one was to have water into their nose and mouth one would immediately wake up and that would be the end of the matter.

[28] Having discounted the likelihood that the identified risk factors were potential causes of the drowning, Dr. McAuliffe agreed it was a possibility that the cause of death was something not detectable on autopsy, such as a sudden cardiac arrest due to “an irregularity of the heartbeat, an arrhythmia which isn’t visible.” He confirmed that an undetected arrythmia that contributed to a sudden cardiac arrest “might or might not” lead to some distress before death occurs; that it could lead to a stoppage of breathing; and that CPR may or may not resuscitate someone. He went on to say, “hypothetically drowning may not be the cause of death.” However, “one would probably invoke the factor that caused the death with terminal drowning and conjoin the issue in that way.”

[29] Dr. McAuliffe subsequently agreed that if drowning was the cause of death there would have to be a reason for drowning to happen. Further, if there was no known reason for the drowning that could open up the possibility of a different cause of death. However, he had “no finding at autopsy that [he could] invoke to indicate what’s happened.”...:

Q. And if those first three aren’t there [seizure, disability, falling asleep] and we don’t have any other reason, then it would open up the possibility that, because you say it’s a diagnosis of exclusion, we have a different cause of death and he was simply immersed in the water.

A. Again, that would be a reasonable invocation, but I have no finding at autopsy that I can invoke to indicate what’s happened.

…

A.   – but just to make my position clear again, the fact that one sits in a bathtub of water as many people will do on a daily basis doesn’t raise any high degree of danger that you’re going to drown … If one is to drown in a bathtub there will generally be a reason why one has drowned in the bathtub. That could be as simple as alcohol intoxication, for instance. It could be drugs and alcohol overdose. It could be a head injury. It could be inflicted injury by somebody else. It could be traumatic as in somebody’s held under the water or it could be disease process, some of which we’ve been talking about here, and some disease processes of course don’t show anatomic stigmata at autopsy such as a cardiac arrhythmia or a seizure, but the natural course of a person’s life certainly doesn’t invoke drowning without something, some causative mechanism being added.

[30] Near the close of cross-examination, Dr. McAuliffe said the finding of fluid in the lungs “would support at least an element of drowning in a man with whatever provoked it.” However, in re-examination, he clarified that pulmonary edema (fluid in the lungs) does not mean water per se. Rather, the “lungs have exerted fluids” called pulmonary edema. While a typical finding associated with drowning, it is not diagnostic of drowning and is found in many other conditions, including cardiac issues.

[31] When asked in re-examination about his evidence that cardiac death would not be demonstrable, Dr. McAuliffe confirmed it would not be. He explained that the known causes of cardiac disease “were not of a prominence here” but said “cardiac deaths can occur for mysterious reasons in many cases”. ...

[32] Dr. McAuliffe was not asked about, nor did he comment on, Mr. Yeung’s action in leaning over the toilet as captured on video nor the bleeding the appellant testified to observing from Jackie’s mouth.

Appellant's Evidence

[35] The appellant testified that the Crisis Prevention Intervention training he took provided a number of strategies for dealing with aggressive residents. The main strategy he was trained to use, when the sole staff member on duty, was social isolation which involved removing the target of aggression and letting the resident cool down. The appellant was prohibited from physically engaging with Mr. Yeung one on one. He was particularly concerned about engaging with Mr. Yeung when no other staff were present because Mr. Yeung could have injured him, creating a risk for other residents. The appellant therefore understood from his training that the preferred strategy if Mr. Yeung became aggressive while the appellant was working alone was to socially isolate him for 10-15 minutes.

[36] The appellant went to check on Mr. Yeung around 12:50 a.m. on April 22, 2016 because he noticed Mr. Yeung was awake. It appeared Mr. Yeung had wet himself, so the appellant helped him get some clothes and then left to let him change. A short while later, the appellant checked the video monitor and noticed Mr. Yeung was still lying on the bed and had not changed his clothes. When he returned to Mr. Yeung’s unit, the appellant discovered Mr. Yeung had soiled himself. The appellant turned on the water so Mr. Yeung could take a bath. Mr. Yeung seemed to be pointing at some red liquid, which appeared to be blood, around his mouth. The appellant helped Mr. Yeung to the bath, retrieved some cleaning supplies and tried to call his on-call supervisor. He went back to check on Mr. Yeung who was by then in the bathtub. He tried to look into Mr. Yeung’s mouth but as soon as he did, Mr. Yeung tried to kick him and began yelling and gesturing at him. He therefore left Mr. Yeung, in accordance with his understanding of the social isolation protocol, to allow him to calm down. The appellant had not observed Mr. Yeung leaning over the toilet as was depicted on the CCTV footage.

[37] The appellant went back to the staff office located on the lower level of Tamaracks. After about 16 minutes, he returned to Mr. Yeung’s unit. He had intended to allow Mr. Yeung a 15-minute window to calm down and said he continued to hear Mr. Yeung in the bath until about a minute or so before his return.

[38] When he returned to Mr. Yeung’s unit, the appellant noticed the bathtub was overflowing. He shut the water off and then went into the bathroom. He saw that Mr. Yeung was in distress, with his nose above the water and his mouth slightly under it. He lifted Mr. Yeung up by his arms. Mr. Yeung was making a weird inhaling sound. The appellant called 911. The 911 operator directed the appellant to pull Mr. Yeung out of the bathtub and do a breath check. The appellant laid Mr. Yeung on his side. Mr. Yeung took a breath. The appellant pulled Mr. Yeung into his bedroom so he could do CPR. Mr. Yeung was no longer breathing.

[39] The appellant was challenged in cross-examination about his failure to mention Mr. Yeung being aggressive on the date in question until his police interview. He was also challenged about his statements on the 911 call and to the police to the effect that Mr. Yeung was “under the water” or “under the tub” when he found him and his failure to previously mention that Mr. Yeung’s nose was above water. The appellant agreed in cross-examination that the CCTV video did not show Mr. Yeung making any independent movements once he was pulled from the bathroom.

Was the Verdict Unreasonable?

The Test

[42] ... Where an unreasonable verdict is alleged, the question is “whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered”: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. Where the Crown’s case depends on circumstantial evidence, an appellate court must ask whether the jury, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the evidence taken as a whole: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56. The availability of competing inferences does not in itself make a verdict unreasonable. The question is whether the competing inferences are reasonable. It is for the trier of fact to draw the line that separates reasonable doubt from speculation.

The Appellant's Argument

[43] The appellant contends that the verdict was unreasonable on two bases. I will address the appellant’s submission that the verdict was unreasonable because there was insufficient evidence for the jury to conclude that the appellant caused Mr. Yeung’s death because, in my view, this argument is dispositive of the appeal.

[44] In order to prove criminal negligence causing death, the Crown was required to prove beyond a reasonable doubt:

1. the appellant undertook an act, or omitted to do something it was his legal duty to do;
2. that the appellant’s act or omission showed a wanton or reckless disregard for the life or safety of the deceased; and
3. the appellant’s act or omissions caused the deceased death.

See R. v. Javanmardi, 2019 SCC 54, 439 D.L.R. (4th) 579, at paras. 19-21.

[48] In any event, the appellant submits there was no reasonable basis in the evidence on which a jury, acting reasonably, could conclude the appellant’s actions caused Mr. Yeung’s death. The Crown adduced no medical evidence at trial to confirm Mr. Yeung had any ongoing risk of seizures. Dr. McAuliffe’s evidence was that falling asleep in a bathtub would be unlikely to lead to death by drowning. Dr. McAuliffe could not eliminate an unknown cause, such as cardiac arrhythmia, as the cause of death.

[50] Even accepting that the jury rejected the appellant’s evidence, including the 911 call res gestae evidence, in its entirety, in my view, there was insufficient evidence in this case to prove beyond a reasonable doubt that the appellant’s actions were a significant contributing cause in Mr. Yeung’s death.

[51] As a starting point, Dr. McAuliffe made it very clear in his evidence that his conclusion that Mr. Yeung drowned was premised on two things he was told: Mr. Yeung was found both submerged and lifeless in the bathtub. There was no evidence at trial concerning the source of this report. It was undoubtedly open to the jury to reject the appellant’s trial evidence that Mr. Yeung’s nose was above the water when the appellant found him and to infer from the appellant’s statements on the 911 call that Mr. Yeung was fully submerged in the tub when the appellant found him. However, even if the jury rejected the appellant’s statements on the 911 call that he observed Mr. Yeung taking breaths, that left a lacuna of evidence on the issue of whether Mr. Yeung was showing any signs of life. [Emphasis by PM]

[52] Second, the Crown led no medical evidence at trial to establish that Mr. Yeung had any risk factors related to bathing alone in a bathtub. The evidence led at trial indicated that his supposed risk of seizures arose from sleep apnea. The evidence suggested this condition had significantly improved, if not resolved, by 2012. Although there was anecdotal evidence of Mr. Yeung falling asleep in the bathtub due to Smith-Magenis syndrome, there was no medical evidence to support the likelihood that he was at risk of drowning for that reason. Moreover, given that there was no evidence of Mr. Yeung suffering a seizure while at Tamaracks, Dr. McAuliffe dismissed as remote the possibility that he suffered a seizure on April 22, 2016. Further, Dr. McAuliffe testified that one’s natural instinct in the event of water entering the mouth and nose while asleep, would be to wake up.

[53] Finally, and perhaps most importantly, Dr. McAuliffe acknowledged in his evidence that drowning is a diagnosis of exclusion: there is no specific anatomical finding for drowning. It is premised on excluding other demonstrable causes and combining that with the known circumstances surrounding the death. Dr. McAuliffe arrived at his diagnosis of drowning based to some degree on his understanding of the state in which Mr. Yeung was found. However, as discussed above, his understanding was not fully supported by the record. Moreover, it is not apparent that he was aware of all the circumstances surrounding the death (e.g., the toilet incident). Dr. McAuliffe did not purport to identify the cause of any drowning. Further, a careful reading of his evidence reveals he could neither demonstrate nor eliminate cardiac arrythmia as a cause of death.

[54] In the absence of evidence to demonstrate what may have led to any drowning and given that Dr. McAuliffe could not eliminate cardiac arrythmia as a cause of death, I would hold that the verdict was unreasonable. In these circumstances, there was insufficient evidence to enable a trier of fact, acting reasonably, to conclude that the outcome would not have been any different had the appellant remained in the bathroom throughout Mr. Yeung’s bath.

[55] In my view, this is a type of case that presents a risk of an unreasonable verdict. The legal complexities surrounding the charge of criminal negligence causing death and the circumstances of this case (the credibility challenges surrounding the appellant’s evidence) created a real risk that the jury might reason backwards. In other words, there was a real risk the jury could jump to the conclusion that because Mr. Yeung died in the bathtub, the appellant’s conduct in leaving him alone in the bathtub must have played a significant contributing role in his death.

R v Van Deventer, 2021 SKCA 163

[December 15, 2021] The W(D) Error in Analysis of a Bare Denial [Reasons by Tool J.A., with Jackson, Ryan-Froslie JJ.A. concurring]

AUTHOR’S NOTE: The one exception to a W(D) analysis that seems to be well-established in the law is the assessment of the evidence of an accused when they testify to a bare denial. Most often in historical sexual assault cases, accused persons simply testify that no such interaction occurred qualifying them for this "alternative" treatment within the W(D) analysis. Specifically, the Judge is entitled to consider the evidence as a whole, including the complainant's evidence to find that the first two prongs of W(D) are met (ie. they do not believe the accused and their evidence does not raise a reasonable doubt). At a quick glance this appears to be the exact opposite of what W(D) demands (ie. you cannot simply prefer the evidence the complainant over the accused as the basis of conviction because criminal trials are not credibility contests). However, process-wise, this has been accepted by the courts repeatedly because of the difficulty in assessing a bare denial. However, there are pitfalls for judges still. Herein, the Judge committed the error of stating too clearly that they were just preferring the evidence of the complainant over the accused in a bare denial case. Stating this goes too far.   

Introduction and Background

[1] Michael van Deventer was convicted of sexually assaulting a young child. He asserts that the trial judge erred by shifting the burden of proof to him, by negatively assessing his credibility solely as a consequence of her positive assessment of the complainant’s credibility and reliability, and by valuing form over substance in her judgment. ...

[3] The complainant, M.S., was born in 2008. When she was two years old, her parents separated and M.S. lived primarily with her mother, G.C., in Saskatoon. Mr. Van Deventer met G.C. on an online dating site during the spring or summer of 2013 and, four months later, began residing with her. They married shortly thereafter and purchased a house together in 2014. G.C. and Mr. Van Deventer began having marital difficulties in November of 2015, and he left the family home in January of 2016. There was no evidence that Mr. Van Deventer had any contact with M.S. after he moved out. At the end of June of 2016, G.C. relocated to Europe and M.S. began living full-time with her father.

[4] In May of 2017, M.S. made a disclosure to her father and her stepmother regarding Mr. Van Deventer. They reported their concerns to the police, and M.S. was interviewed by Sgt. Susan Diebert of the Saskatoon Police Service....

Trial Decision

[Trial Judge's Evaluation of MS's evidence...]

[M.S.] was unshaken in her testimony in relation to the core elements of the offence. She was both credible and reliable, and I accept her evidence.

[10] The trial judge immediately followed this conclusion on M.S.’s credibility and reliability, without any analysis of Mr. Van Deventer’s credibility or reliability, by stating the following:

The necessary corollary of this conclusion is that I do not believe and I reject Mr. Van Deventer’s denial. Further, in the context of the totality of the evidence, particularly that of [M.S.], I am not left in reasonable doubt by Mr. Van Deventer’s denial.

The Error in the Application of the Burden of Proof

[13] Mr. Van Deventer submits that the trial judge erred by determining she was required to find that he was not credible as a necessary consequence of finding M.S. to be credible and reliable. He points to the absence of any analysis of his credibility after the finding that M.S. was credible and reliable and takes particular issue with the trial judge’s statement that “[t]he necessary corollary of this conclusion is that I do not believe and I reject Mr. Van Deventer’s denial”. He argues that this absence of analysis, combined with her use of mandatory language regarding the result that must flow from her findings about M.S.’s testimony, represented a misapplication of the burden of proof. He further contends that by assessing the complainant’s credibility first, the trial judge engaged in a process that was unfair in relation to the assessment of his own testimony. In summary, Mr. Van Deventer characterizes the entirety of the trial judge’s analysis as constituting a credibility contest.

[15] ... However, the trial judge’s statement that she must reject and disbelieve Mr. Van Deventer’s testimony as a necessary corollary of finding M.S. to be credible and reliable, combined with no other analysis of his credibility, represents an error that necessitates a new trial. A short expansion on the approach to be applied when an accused’s testimony consists of a bare denial of the sexual activity is warranted in order to explain why I find this to be so.

[16] When I refer to the term bare denial, I do not mean to imply that Mr. Van Deventer did not testify at length or did not provide a significant amount of detail in his testimony. I use this phrase because it appears to be the common wording used in the jurisprudence to describe a situation where an accused testifies that the alleged sexual activity did not occur.

[18] ... In its recent decision in R v Garford, 2021 ABCA 338, the Alberta Court of Appeal reiterated that it is not an error in the application of the W.(D.) analysis for a trial judge to assess the credibility of the complainant’s evidence prior to assessing the credibility of the accused’s bare denial. In making that determination, the court stated the following:

...

[32] .... An accused’s denial is ultimately assessed in the context of the whole of the evidence.…

[34] ...The well-established formula in W(D) does not conscript a trier of fact as to the order in which the evidence must be assessed. Substance trumps form. Particularly in the case of a bare denial, where it would often be an artificial and fruitless exercise to assess and weigh an accused’s evidence in a vacuum.

(Emphasis added)

[20] ... A trial judge cannot simply compare the evidence of an accused and the evidence of a complainant, or another Crown witness, and then choose which version of events they prefer. Correspondingly, a trial judge cannot reject an accused’s testimony solely because it is inconsistent with the Crown’s evidence: see R v Hoskins, 2021 SKCA 23 at para 98; R v Libertore, 2010 NSCA 82 at paras 11–12, 262 CCC (3d) 559 [Libertore]); and Vuradinat paras 21 and 26.

[[22] Further to this point, in the recent decision of R v G.C., 2021 ONCA 441, the Ontario Court of Appeal found that the trial judge did not err in considering the evidence of the complainant while assessing the accused’s credibility. In doing so, the Court noted the following:

[15] … an accused person is not entitled to an acquittal simply because his evidence does not raise any obvious problems. His evidence may be rejected “based on considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence” which may provide “as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence”: [citations omitted].

(Emphasis added)

[24] ... As long as the assessment of the entirety of the evidence follows a discernable pathway through the W.(D.) analysis, a trial judge is permitted to examine the credibility of a complainant in their assessment of the accused’s bare denial. An accused’s testimony should not be assessed in isolation at the first stage of the W.(D.) test. In order to properly assess the accused’s denial, a trial judge must be permitted to consider the credibility and reliability of the allegations against the accused. In my view, it would be difficult to determine the credibility of a bare denial without also considering the entirety of the evidence. The evidence of the complainant provides the basis for an accused’s denial, so considering one without the other could often be a pointless exercise.

[25] A finding of credibility and reliability regarding a complainant’s testimony about the alleged conduct can be the reason for rejecting the testimony of an accused, when considered in the context of the entirety of the evidence. As long as a trial judge is mindful of the burden of proof and the principles from W.(D.), they can reject the accused’s evidence on the basis that the complainant’s evidence is accepted to the extent that it leaves no room for reasonable doubt. However, this does not address the issue of whether a finding of credibility and reliability for a complainant leads to the necessary corollary that a trial judge must disbelieve the accused.

[27] The judgment of the Alberta Court of Appeal in C.L.S. further assists in demonstrating the error that arises in this appeal:

... [47] ... The trial judge did not say, “I reject the accused’s evidence because I accept the complainant’s evidence” but rather, “I reject the accused’s evidence because it is inconsistent with the evidence as a whole, including the complainant’s evidence, which establishes the accused’s guilt beyond a reasonable doubt”. This approach discloses no reviewable error.

(Emphasis added)

[28] The implication of paragraph 47 from C.L.S. is that it would be an error of law to automatically reject an accused’s evidence solely because of the acceptance of a complainant’s evidence. Finding a complainant to be credible and reliable does not mean that an accused’s testimony could not also be found to be credible and reliable. In the specific context of this case, finding M.S. to be credible and reliable did not mean that Mr. Van Deventer’s testimony must be disbelieved and rejected. It is that problem that arose in the case at hand. It is worth repeating the words of the trial judge at this point: ...

The necessary corollary of this conclusion is that I do not believe and I reject Mr. Van Deventer’s denial. Further, in the context of the totality of the evidence, particularly that of [M.S.], I am not left in reasonable doubt by Mr. Van Deventer’s denial.

(Emphasis added)

[29] I read the phrase necessary corollary as being equivalent to the imposition of a mandatory outcome at stage one of the W.(D.) analysis once M.S. was found to be credible and reliable. ... Here, the trial judge gave the reason why she found Mr. Van Deventer not to be credible. The trial judge clearly indicated that she believed she must, in a lockstep manner, reject and disbelieve Mr. Van Deventer’s denial once she found M.S. to be credible and reliable. That was an error of law. [Emphasis by PM]

[32] Despite this cautious approach on appeal, I am faced with the inescapable conclusion that the trial judge fell into error in the application of the principles from W.(D.). I am not able to conclude that the sentence, “The necessary corollary of this conclusion is that I do not believe and I reject Mr. Van Deventer’s denial”, can be categorized as ambiguous, unfortunate or imprecise wording – the impact of which can be overcome by examining the judgment as a whole. The effect of this statement was central to the trial judge’s assessment of Mr. Van Deventer’s credibility. In essence, it represented the entirety of her analysis of his credibility.

R v Jeyakanthan, 2021 ONSC 8250

[December 17, 2021] Possession: The Hot Potato Defence [Justice Conlan]

AUTHOR’S NOTE: Possession generally comes down to knowledge of the item possessed and a measure of control over it. You would think that when someone drops a gun on your lap and you hide it, you would be admitting all the elements of criminal possession. This case gives a good overview of the law to the contrary. While touching on the line of authority that says that if you possess solely to convey the illegal item to the authorities, this summery skips over that portion of the review of the law and focuses on the analysis that says possessing an item without a "criminal" intent to possess it for a nefarious purpose does not meet the intent threshold for the offence.

Overview

[3] Much of the evidence was uncontroversial.  A document titled “Admissions and Agreed Statement of Fact” was tendered on consent and marked exhibit 1.  The case for the Crown went in by filing transcripts from the preliminary inquiry (exhibits 2 and 3), photographs of the tactical police unit (exhibit 4a and 4b), and maps and diagrams of the areas in question at Square One shopping centre (exhibits 5a, 5b, and 5c).  There was also some relatively brief viva voce evidence at trial from several police officers.

[4] The defence called evidence, limited to the testimony of the accused, Janson.

[6] I thank counsel for presenting such a focussed trial.  As Ms. Schofield indicated at the opening of the trial, there is a singular issue that is to be decided – possession, specifically knowledge and control of the handgun on the part of Janson.

The Law of Possession

[14] There is a line of authority in Canada, recognized in Ontario by my former colleague, Justice Hill, in R. v. Foster, 2016 ONSC 7914 (CanLII), that the necessary criterion of “control” may, depending on the circumstances, exclude a casual or hasty manual handling of the item in question by the accused.  Justice Hill very nicely summarized the said line of authority at paragraphs 134 through 137 of the decision in Foster, supra, which paragraphs are set out below.

[134] What will constitute proof of an act or measure of control, sufficient to attract criminal liability, will of course vary with the factual circumstances of each case. To this end, a body of jurisprudence has grown up addressing instances of temporally brief manual handling of various items. Some of these authorities  include the following.

[135] In R. v. Vance and Nichols, [1977] O.J. No. 1103 (C.A.), the court reversed a conviction for possession of a narcotic for the purpose of trafficking. As Vance was pursued by the police, he passed a bottle containing 120 tablets of phencyclidine (PCP) to Nichols. As the police approached Nichols, he dropped the bottle to the ground. In setting aside Nichol’s conviction, Brooke J.A. stated at para. 7:

As to Nichols, we are unanimously of the view that his appeal must be allowed, and his conviction set aside and an acquittal entered. There was no real conflict in the evidence as to what occurred, and whether one accepted the evidence of the witness or the appellant, the bottle of drugs was in the appellant's hands for the briefest time. This was a "hot potato" case. The bottle was passed to Nichols unexpectedly, with the police in pursuit of Vance. There was no agreement between Vance and Nichols, no plan that Nichols should take the drugs in an emergency or otherwise, and there was no suggestion that he had any interest in them. True, he suspected that what his acquaintance had passed to him was a drug. But the time during which he had them in his hands, was hardly time for the making of a conscious decision to accept them so that one could find he had possession of them in law. A passage in the dissenting judgment of Lord Morris of Borth-y-Gest in Warner v. Metropolitan Police Commissioner (1968), 52 Cr. App. 373 at 403 is apt:

... In my view, in order to establish possession the prosecution must prove that an accused was knowingly in control of something in circumstances which showed that he was assenting to being in control of it; they need not prove that in fact he had actual knowledge of the nature of that which he had.

[Emphasis added]

In our view the evidence fell short of satisfying the onus on the Crown of proving that this appellant accepted the drugs, and that he assented to being in control of them.

[136] In R. v. York (2005), 2005 BCCA 74 (CanLII), 193 C.C.C. (3d) 331 (B.C.C.A.), the court stated at paras. 11-13, 15-16, 20:

15 The presence of the essential elements of manual handling, knowledge and control may not in all cases be sufficient to warrant a conviction. Such was the case in R. v. Christie (1978), 1978 CanLII 2535 (NB CA), 41 C.C.C. (2d) 282 (N.B.S.C.A.D.). The facts are worth noting. The accused had lent her car to the daughter of a friend. She said it was her practice to leave the keys in her car so that her daughter could use it as well. When the car was returned to her, she noticed a brown paper bag in the trunk containing marihuana. She slammed the trunk door closed. She clearly knew that the bag contained drugs. She said she wished to seek advice from friends as she feared her daughters' involvement. She drove around the city looking for her friends when she got involved in an accident. The accused's explanation for her conduct was that she was in a state of panic and feared her daughters' involvement with the drugs. Hughes C.J.N.B. for the Court of Appeal in upholding the acquittal relied on Hess, supra, and stated:

In my opinion, there can be circumstances which do not constitute possession even where there is a right of control with knowledge of the presence and character of the thing alleged to be possessed, where guilt should not be inferred, as where it appears there is no intent to exercise control over it. An example of this situation is where a person finds a package on his doorstep and upon opening it discovers it contains narcotics. Assuming he does nothing further to indicate an intention to exercise control over it, he had not, in my opinion, the possession contemplated by the Criminal Code. Nor do I think such a person who manually handles it for the sole purpose of destroying or reporting it to the police has committed the offence of possession.

[Emphasis added]

[by BCCA]

16 Similarly, in R. v. Glushek (1978), 1978 ALTASCAD 175 (CanLII), 41 C.C.C. (2d) 380, the Alberta Court of Appeal in upholding an acquittal stated that a brief handling of stolen goods with full knowledge of their character solely for the purpose of getting rid of them does not constitute possession within s. 3(4)(a) of the Criminal Code since the respondent's conduct was inconsistent with retaining or dealing with the goods. Possession is not made out where there is physical control without any co-existing intention to deal with the object in some deliberately personal manner. See also R. v. Spooner (1954), 1954 CanLII 398 (BC CA), 109 C.C.C. 57 (B.C.C.A.) per O'Halloran J.A. at 61. This is because conduct may be characterized as criminal only where the Crown proves the existence of a blameworthy state of mind.

…

20 I think the law can be summarized as follows. Personal possession is established where an accused person exercises physical control over a prohibited object with full knowledge of its character, however brief the physical contact may be, and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in some prohibited manner. The judge convicted the appellant on the grounds that the appellant knew that the goods were stolen, and that he exercised physical control over them without notifying the police or the rightful owners. The blameworthiness of this conduct fell short of that required for a conviction for a crime of dishonesty. The circumstances here are not all that dissimilar to those in Christie, supra. The appellant's conduct was inconsistent with any intention to retain or deal with the goods.

[137] In R. v. Hall (1959), 1959 CanLII 472 (BC CA), 124 C.C.C. 238 (B.C.C.A.), at p. 239, the court observed:

But control within the meaning of Beaver v. The Queen and R. v. Spoonernecessarily (if reasonable doubt is to be invoked) excludes a casual or hasty manual handling of the subject-matter under circumstances, as in the evidence here, not consistent with one's own purposes or use for "a fix". Of course each case has to be decided on its own evidence; cf. R. v. Smith (1855), 6 Cox C.C. 554 and R. v.Parker, 1941 CanLII 359 (BC CA), 77 Can. C.C. 9, [1942] 1 D.L.R. 645, 57 B.C.R. 117.

See also R. v. Glushek (1978), 1978 ALTASCAD 175 (CanLII), 41 C.C.C. (2d) 380 (Alta. C.A.), at paras. 48-55; R. v. Spooner (1954), 1954 CanLII 398 (BC CA), 109 C.C.C. 57 (B.C.C.A.), at pp. 59-64; R. v. Hess (No. 1) (1949), 1948 CanLII 349 (BC CA), 94 C.C.C. 48 (B.C.C.A.), at pp. 51-54; R. v. Lewin, [1998] O.J. No. 2929 (S.C.J.), at paras. 4, 13-18; R. v. Cantera, [1981] A.J. No. 125 (Q.B.), at paras. 2, 4-6; R. v. Young, 2006 ABPC 36, at paras. 9-10, 26.

Analysis

Key Evidence at Trial

[15] There is no question that Janson was with two other males in a motor vehicle at Square One shopping centre.  There is no question that, once the police moved in for a takedown of person(s) suspected to be involved in an earlier shooting in Burlington, Janson, the lone occupant in the rear seat, was found to have a loaded handgun down his pants, in his crotch area.  There is no question that he was not authorized to have that gun or its magazine or its ammunition.

[18] It is agreed by all trial witnesses, including Janson, that everything happened very quickly at the takedown area.

[20] The point is that it was a matter of seconds, under 20 seconds for sure, between the takedown call and the tactical police officers standing at the doors of the Durango.  These police officers were all very good witnesses at trial.  They were all doing their best to estimate the time, but it is to be frank an impossible task for them.  They were focussed on what they had to do on scene.  This was a very stressful, high-pressure, adrenaline-pumping, event.  Keeping a stopwatch was not a part of the exercise.

[21] It was officer Leder who found the handgun on Janson.  He testified in direct examination at trial that about ½ inch of the butt of the handgun was protruding from Janson’s beltline, centre crotch area.  Janson was wearing an oversized shirt, untucked.  The belt was super tight around his waist.  His pants were super baggy.  In cross-examination, Leder stated that the barrel of the gun was pointed downwards, the butt of the handle sticking out of Janson’s pants perpendicular with the belt, and there was nothing securing the gun in place except the tight belt.

[23] Janson testified about what he says happened.  He is now 28 years old.  He has no criminal record.  He has a decent work history and attended University of Waterloo.

[24] He stated that he went to Earl’s to meet his friend, at his friend’s invitation.  When he got to Earl’s, a third male was present.  They had some beers.  He had a “light buzz”.  He smoked a marihuana joint outside.  His friend offered to drive him home.  The three of them made their way to the Dodge Durango.

[25] According to Janson, the following occurred once inside the Durango.  Someone said “cops, cops”.  The front passenger (the third male) reached his left hand back and placed the gun on Janson’s lap.  Janson shoved the gun down his pants.  He did not know about the gun beforehand.  He shoved it down his pants because he panicked.  He intended to hide the gun.

[27] In cross-examination, Janson denied that it was his handgun and/or that it was on his person the whole time.  He called those suggestions “false”.  He said that he did not simply push the gun off his lap because he did not want the police to find it anywhere around him.  He described that he just leaned back slightly and lifted his hips up a bit and stuffed the gun down his pants.

Has the Crown Met its Burden of Proof

[32] Addressing each one in turn, first, I find the evidence of the accused to be quite believable.  I elaborate on this further below.

[33] Second, I do not find that the accused was in possession and control of the gun throughout his time at Square One shopping centre.  Nor do I think that the only reasonable inference to be drawn from the totality of the evidence adduced at trial is that the accused had the gun on his person before he entered the Dodge Durango.  An equally reasonable inference to be drawn, and the one that I accept, is that Janson did not know about the gun until the moment that it was dropped onto his lap while he was sitting in the rear passenger seat of the motor vehicle.

[34] Third, I find that there was opportunity for the front passenger seat male to have reached back and dropped the gun on the accused’s lap; as indicated previously herein, it was a matter of seconds, under 20 seconds for sure, between the takedown call and the tactical police officers standing at the doors of the Durango.  At the same time, however, it would have taken only a few seconds for the occupants of the Durango to notice the police officers and for someone to call out “cops, cops”, then a few seconds more for the third male to reach back and drop the gun onto the accused’s lap, and then, even accounting for some shock on the part of the accused, a few seconds still for Janson to stuff the gun down his pants.  There was opportunity for that to occur within 10 to 15 seconds, maybe even less.

[35] Fourth, and finally, I conclude that this is a case where the “hot potato” argument succeeds.  I do not agree with the Crown’s implied suggestion that it is incumbent on Janson to establish that his fleeting possession of the gun was for a purpose related to its legal disposal or dumping or for the purpose of placing it beyond the hands of a criminal.  I am not aware of any authority to that effect.  Further, the burden is on the prosecution to prove possession and its constituent elements, beyond a reasonable doubt.  At the end of the day, the “hot potato” argument is related to the mens rea component of criminal liability.  Possession, to be criminal or culpable possession, must include mens rea or fault requirements.  R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.), at paragraphs 36-37.

[36] What happened here, as I find the facts to be, is not the type of culpable possession that Justice Fish was referring to in Morelli, supra.

[37] Returning to the first argument, that is the credibility of the accused’s evidence, with respect, there is nothing inherently implausible or nonsensical about Janson’s testimony.  No witness is perfect, and even if this Court agreed with the Crown’s list of alleged internal inconsistencies in the accused’s trial testimony (paragraph 74 of the Crown’s written closing argument), it would not cause this Court to not accept Janson’s evidence about how the gun was dropped on his lap and how and why he shoved it down his pants.

[41] I find it quite believable that someone unfamiliar with guns would be startled, not frozen per se but panicked and afraid, at having a handgun suddenly dropped in his lap.  I think that one common sense reaction might be to quickly smack it away and onto the seat or the floor of the vehicle.  But we must remember that, according to Janson, at that moment when the gun was dropped in his lap he also had heard “cops, cops” and could see the officers rushing to the Durango.  “Having a gun is obviously not legal, period”, he stated to the Crown in cross-examination.  So, whether it was loaded or not, he instinctively shoved it down his pants to hide it.

[43] I find as facts that (i) Janson was not aware of and did not see or handle the gun until the moment that the front passenger of the Durango (the third male) reached back and dropped it on Janson’s lap, and that (ii) Janson then immediately stuffed the gun down his pants.

[45] On the application of the law to those facts that I accept, Janson must be acquitted.  There is an absence of criminal intent, mens rea.  Although he was found to be in physical possession of the gun down his pants, and although he knew that what he shoved down his pants was a gun, his very brief handling of the gun was not, in my view, commensurate with any degree of control sufficient to constitute legal possession.  His handling of the gun was hasty.  It was instinctive.  It was immediate.  I am not sure that I would label it as being “casual”, but that is not fatal to the argument.  This was, in my assessment, unlike the conclusion reached by Justice Hill in Foster, supra, a case where the accused can reasonably be described as being a “hot potato” transferee.

Conclusion

[47] The Crown has not proven possession beyond a reasonable doubt.

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