The Defence Toolkit – June 14, 2020

This week’s top three summaries: R v Sullivan, 2020 ONCA 333, R v El-Majzoub, 2020 ABPC 105, and R v Virk, 2020 ONCJ 278.

R v Sullivan (ONCA)

[June 6, 2020] Charter s.7 - s.33.1 CCC Unconstitutional, Automatism - Elements, Declaratory Power under s.52 of the Constitution Act, 1982 and Lower Courts - 2020 ONCA 333 [Reasons by Paciocco J.A> with Watt and Lauwers JJ.A. concurring]

AUTHOR’S NOTE: Although declaratory relief has already been granted in Alberta at the Queen's Bench Level (see note in R v Brown, 2020 ABQB 166 and Our Summary: http://www.sitarmilczarek.com/the-defence-toolkit-march-29-2020/) what this declaration means for other cases is clarified in Sullivan. Simply put a s.52 declaration does not bind other courts of concurrent jurisdiction, but "absent cogent reasons" that the prior decision is "plainly wrong" subsequent judges should apply the prior declaration. In other words, while they are not bound in law, in practice, they should be. 

This decision provides sound logic for challenging provisions of the code that impact the mental element of an offence. ...

Pertinent Facts

[1] Mr. Thomas Chan and Mr. David Sullivan share similar, tragic experiences. In separate incidents, while in the throes of drug-induced psychoses and without any discernible motive, both men attacked and stabbed loved ones. Mr. Chan, who became intoxicated after consuming “magic mushrooms”, killed his father and grievously injured his father’s partner. Mr. Sullivan, who had become intoxicated after consuming a heavy dose of a prescription drug in a suicide attempt, repeatedly stabbed his elderly mother. Both men allege that they were in a state of automatism at the time of the attacks.

[2] Automatism is defined as “a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action”: R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, at para. 156, per Bastarache J. Involuntariness is therefore the essence of automatism. The “mind does not go with what is being done”: Rabey v. The Queen, 1980 CanLII 44 (SCC), [1980] 2 S.C.R. 513, at p. 518, citing R. v. K., 1970 CanLII 431 (ON SC), [1971] 2 O.R. 401 (S.C.), at p. 401. 

[3] Persons in a state of automatism may have the benefit of a “defence” when they engage in otherwise criminal conduct, even though automatism is not a justification or excuse: R. v. Luedecke, 2008 ONCA 716, 93 O.R. (3d) 89, at para. 56. Instead, automatism is treated as negating the crime. It is referred to as a defence because the accused bears the burden of establishing automatism. In Luedecke, at para. 56, Doherty J.A. explained the underlying principles:

A person who is unable to decide whether to perform an act and unable to control the performance of the act cannot be said, in any meaningful sense, to have committed the act. Nor can it be appropriate in a criminal justice system in which liability is predicated on personal responsibility to convict persons based on conduct which those persons have no ability to control.

[5] The alternative branch, the common law automatism defence, applies where the involuntariness is not caused by a disease of the mind [“non-mental disorder automatism”]. Where a non-mental disorder automatism defence succeeds, the accused is acquitted.

[6] Mr. Chan and Mr. Sullivan each relied on non-mental disorder automatism as their primary defence. The hurdle they each faced is that their non-mental disorder automatism claims arose from their intoxication, and each man was charged with violent offences. Yet, s. 33.1 of the Criminal Code [“s. 33.1”] removes non-mental disorder automatism as a defence where the state of automatism is self-induced by voluntary intoxication and the offence charged includes “as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person” [a “violence based offence”].

Declaratory Relief by Other Courts of Concurrent Jurisdiction

[33] As the decision in R. v. McCaw, 2018 ONSC 3464, 48 C.R. (7th) 359 reveals, superior court case law in Ontario is split on whether this is correct. There does not appear to be appellate authority directly on point, although in an obiter comment made in another context, in R. v. Boutilier, 2016 BCCA 24, 332 C.C.C. (3d) 315, at para. 45, Neilson J.A. commented that a declaration is “a final order in the proceeding directed at the constitutionality of [the impugned provision], binding on the Crown and on other trial courts of [the] province” (emphasis added). 

[34] With respect, I cannot agree. I am persuaded that the ordinary principles of stare decisis apply, and that the trial judge was not bound by the Dunn decision. The authorities relied upon by Mr. Chan do not purport to oust these principles. In Nova Scotia (Workers’ Compensation Board), at para. 28, Gonthier J. was simply explaining that a provision that is inconsistent with the Constitution “is invalid from the moment it is enacted, and a judicial declaration to this effect is but one remedy amongst others to protect those whom it adversely affects.” He was not attempting to alter the principles of stare decisis where s. 52(1) declarations have been made.

[38] The application of the principles of stare decisis to s. 52(1) declarations made by superior court judges does not mean that a superior court declaration will have no effect in other cases. Other superior court judges should respect an earlier declaration of unconstitutionality, absent cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision: R. v. Scarlett, 2013 ONSC 562, at para. 43; Re Hansard Spruce Mils Ltd., 1954 CanLII 253 (BC SC), [1954] 4 D.L.R. 590 (B.C.S.C.), at p. 592. It is obvious that a superior court judge cannot determine that there is cogent reason to conclude that the earlier decision is plainly wrong without the benefit of argument, facilitated by fair notice to the parties. Therefore, where a party seeks to rely on a statutory provision that has been declared to be unconstitutional by a superior court judge, a subsequent trial judge should apply that earlier declaration of invalidity and treat the statutory provision as having no force or effect, unless the underlying constitutional issue has been raised by the Crown before them through submissions that the earlier decision is plainly wrong. In this way, the principles of stare decisis can operate, while recognizing that the effect of a s. 52(1) declaration is not confined to the litigation in which the declaration is made.

[40] The trial judge was correct in finding that he was not bound by Dunn. He was also correct in considering the issue anew, as the issue of the constitutionality of s. 33.1 was put before him, and the authority he encountered was inconsistent. He had no choice, in the circumstances, but to consider whether to deviate from Dunn.

Section 33.1 Unconstitutional

[42] The trial judge was correct in finding s. 33.1 to be in prima facie violation of both ss. 7 and 11(d) of the Charter. Section 33.1 violates each of the constitutional principles that were identified by Cory J. for the majority in R. v. Daviault, 1994 CanLII 61 (SCC), [1994] 3 S.C.R. 63. In Daviault, the Supreme Court of Canada modified the common law rule that eliminated the defence of extreme intoxication because the common law rule was in breach of the Charter in three ways. I will describe these breaches as “the voluntariness breach”, “the improper substitution breach”, and “the mens rea breach.” Although there has been some variation in articulation and emphasis, virtually all the judges who have considered this issue have found that the legislation breaches the Charter in one or more of these respects.

[47] The majority in Daviault qualified this sharp general intent offence/specific intent offence divide by accepting the view expressed by Wilson J. in Bernard, at p. 887, that evidence of extreme intoxication involving an absence of awareness akin to a state of automatism is not irrelevant on issues of general intention. Such evidence can raise a reasonable doubt as to the existence of even the minimal intent required for a general intent offence such as sexual assault. Given that this is so, the Daviault majority concluded that the Charter requires both the admissibility of evidence of extreme self-induced intoxication, as well as access to the defence of automatism, even when the automatism is the result of self-induced intoxication. To do otherwise, would contravene the right to life, liberty, and security of person in a manner that does not accord with the principles of fundamental justice (Charter, s. 7) and the presumption of innocence (Charter, s. 11(d)). More specifically:

1.   The Voluntariness Breach – It would be contrary to the principles of fundamental justice (Charter, s. 7) and the presumption of innocence (Charter, s. 11(d)) to permit accused persons to be convicted for their involuntary acts, as those acts are not willed and therefore not truly the acts of the accused: Daviault, at pp. 74, 91;

2.   The Improper Substitution Breach – It would be contrary to the presumption of innocence (Charter, s. 11(d)) to convict accused persons in the absence of proof of a requisite element of the charged offence, unless a substituted element is proved that inexorably or inevitably includes that requisite element. A prior decision to become intoxicated cannot serve as a substituted element because it will not include the requisite mental state for the offences charged: Daviault, at pp. 89-91; and

3.   The Mens Rea Breach – It would be contrary to the principles of fundamental justice (Charter, s. 7) to convict accused persons where the accused does not have the minimum mens rea that reflects the nature of the crime: Daviault, at pp. 90-92.

[49] The Daviault majority did hold, at p. 101, however, that it is a reasonable limitation on the Charter rights identified to require accused persons to establish automatism with the assistance of expert evidence, on the balance of probabilities.

[53]....The sole reason that the Supreme Court of Canada reconfigured the common law Leary rules in Daviault was that, without reconfiguration, the Leary rules infringed principles of fundamental justice assured by s. 7 of the Charter, as well as the presumption of innocence under s. 11(d). Those principles of fundamental justice were not created in Daviault. They had already been recognized by other Supreme Court of Canada authority. Nor does the reach or definition of those Charter principles vary depending upon whether the law being tested is a common law or statutory rule. As s. 52(1) of the Constitution Act, 1982 makes clear, subject to s. 1 of the Charter, these constitutionally-protected principles must be respected by “any law”, common law or statutory. If the law does not do so, it will be of no force or effect to the extent of the inconsistency.

(a) The Voluntariness Breach: Section 33.1 infringes ss. 7 and s. 11(d) of the Charter, as it is contrary to the voluntariness principle of fundamental justice and permits conviction without proof of voluntariness

[64] Section 33.1 provides expressly that “[i]t is not a defence to [a violencebased offence] that the accused, by reason of self-induced intoxication, lacked general intent or the voluntariness required to commit the offence” (emphasis added). The principles of fundamental justice require that voluntariness is an element of every criminal offence. It is therefore contrary to the principle of fundamental justice affirmed in Daviault, at p. 91, to remove the voluntariness element from an offence. It is also contrary to s. 11(d) to convict someone where there is a reasonable doubt about voluntariness.

[65] The Crown does not dispute the importance of voluntariness. It argues instead that the voluntariness inherent in voluntary intoxication supplies the required voluntariness element for the violence-based charges. With respect, the Crown’s reliance on the voluntariness of intoxication is misplaced. The purpose of the principle of voluntariness is to ensure that individuals are convicted only of conduct they choose. What must be voluntary is the conduct that constitutes the criminal offence charged, in this case, the assaultive acts by Mr. Chan....

[66] Case law is clear on this point. The Supreme Court of Canada has consistently affirmed that voluntariness must be linked to the prohibited conduct. As Lebel J. put it in Bouchard-Lebrun, at para. 45, it is unfair to convict “an accused who did not voluntarily commit an act that constitutes a criminal offence” (emphasis added). In R. v. Théroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5, at p. 17, McLachlin J. (as she then was), in speaking of the elements of the crime, said “the act must be the voluntary act of the accused for the actus reus to exist.”...

[75] The trial judge was correct to find that s. 33.1 contravenes ss. 7 and 11(d) of the Charter because it bypasses the requirement of voluntariness, which is a principle of fundamental justice.

(b) The Improper Substitution Breach: Section 33.1 infringes the presumption of innocence guaranteed by s. 11(d) of the Charter by permitting conviction without proof of the requisite elements of the offence

[77] As Daviault recognizes, at p. 91, substituting voluntary intoxication for the required elements of a charged offence violates s. 11(d) because doing so permits conviction where a reasonable doubt remains about the substituted elements of the charged offence. As the trial judge pointed out in this case, that is the unconstitutional effect of s. 33.1 on Mr. Chan. It purports to permit Mr. Chan to be convicted of manslaughter and aggravated assault without proof of the mental state required by those offences, namely, the intention to commit the assaults.

(c) The Mens Rea Breach: Section 33.1 infringes s. 7 of the Charter by permitting convictions where the minimum level of constitutional fault is not met

[79] Section 33.1 also infringes s. 7 of the Charter by enabling the conviction of accused persons who do not have the constitutionally required level of fault for the commission of a criminal offence. The Crown argues that the fault inherent in voluntary intoxication suffices where a person commits an act “that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person”. I do not agree. 

[80] In R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at pp. 61-62, the Supreme Court of Canada held that where an offence provides no other mens rea or “fault” requirement, the Crown must at least establish “penal negligence” to satisfy the principles of fundamental justice. Put otherwise, penal negligence is the minimum, constitutionally-compliant level of fault for criminal offences. The general intent offences Mr. Chan was charged with have never been found to require more than the minimum level of fault. Nor is there any reason to conclude that they fall within the “small group of offences” that require a purely subjective standard of fault: Morrison, at para. 75. The standard of penal negligence is therefore the appropriate measure for testing the constitutional validity of s. 33.1, which modifies the fault standard for violence-based offences committed while voluntarily intoxicated.

[83] ... For penal negligence to exist so that criminal liability can be imposed, the relevant risk must be reasonably foreseeable such that it not only falls below standards of ordinary prudence to engage in the risky behaviour but doing so amounts to a marked departure from standards of ordinary prudence: Creighton, at p. 59. Section 33.1 fails to meet this standard in several ways.

[84] First, s. 33.1 does not require a foreseeability link between voluntary intoxication and the relevant consequence, the act of violence charged. In Bouchard-Lebrun, at para. 89, Lebel J. set out the elements of s. 33.1:

This provision applies where three conditions are met: (1) the accused was intoxicated at the material time; (2) the intoxication was self-induced; and (3) the accused departed from the standard of reasonable care generally recognized in Canadian society by interfering or threatening to interfere with the bodily integrity of another person. [Citations omitted.]

[85] Note that on this authoritative description of the elements of s. 33.1, there is no prescribed link between the voluntary intoxication and the violent act. It does not matter how unintentional, non-wilful, unknowing, or unforeseeable the interference with bodily integrity or threatening is. So long as these components each occur, s. 33.1 operates. This is problematic because without a foreseeable risk arising from the allegedly negligent act, negligence cannot be established, and without negligence, the minimum constitutional standard of penal negligence cannot be met.

[86] Second, even if s. 33.1 had required such a link, the charged violent behaviour is not invariably going to be a foreseeable risk of voluntary intoxication, yet s. 33.1 will nonetheless enable conviction. Cory J. made this point in the context of the sexual assault charge before him, in Daviault, at p. 91:It simply cannot be automatically inferred that there would be an objective foresight that the consequences of voluntary intoxication would lead to the commission of the offence. It follows that it cannot be said that a reasonable person, let alone an accused who might be a young person inexperienced with alcohol, would expect that such intoxication would lead to either a state akin to automatism, or to the commission of a sexual assault.

[87] Mr. Chan’s case illustrates the point. A reasonable person in Mr. Chan’s position could not have foreseen that his self-induced intoxication might lead to assaultive behaviour, let alone a knife attack on his father and his step-mother, people he loved.

[88] Third, the normative element of penal negligence – that the allegedly negligent conduct be a marked departure from the standards of a reasonable person – is absent. ...

IF S. 33.1 IS IN PRIMA FACIE VIOLATION OF THE CHARTER, CAN IT BE SAVED BY S. 1 OF THE CHARTER?

[95] The trial judge was therefore correct in finding that s. 33.1 violates the Charter in three distinct ways: (a) a voluntariness breach of ss. 7 and 11(d); (b) an improper substitution breach of s. 11(d); and (c) a mens rea breach of s. 7. Since s. 33.1 is in prima facie violation of ss. 7 and 11(d) of the Charter in these ways, it is of no force or effect unless the Crown can demonstrate, pursuant to s. 1 of the Charter that s. 33.1 is a “reasonable limit” “prescribed by law as can be demonstrably justified in a free and democratic society”. The trial judge found that the Crown met this burden, and therefore, dismissed Mr. Chan’s Charter challenge to s. 33.1.

[97] I would also find that s. 33.1 cannot be justified under s. 1. Section 1 analysis is grounded in a contextual application of the framework set out in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103. In R.J.R.-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at paras. 126-130, the Supreme Court of Canada refined without altering the framework for establishing a reasonable limitation finding under s. 1. The Crown must demonstrate: 

(1)  Pressing and Substantial Purpose – the “objective of the law limiting the Charter right [is] of sufficient importance to warrant overriding it”; and

(2)  Proportionality – the “means chosen to achieve the objective must be proportional”, in the sense that,

(a) Rational Connection – the “measures chosen [are] rationally connected to the objective”;

(b) Minimal Impairment – the measures chosen “must impair the guaranteed right or freedom as little as reasonably possible”, and

(c) Overall Proportionality – “there must be overall proportionality between the deleterious effects of the measures and the salutary effects of the law.”

[98] Section 33.1 would be of no force or effect if the Crown has failed to demonstrate any of these components on a balance of probabilities. I would find that the Crown has not demonstrated the rational connection, minimal impairment, or the proportionality required to save the provision.

(a) The Crown’s stated purposes do not accurately reflect the object of s.33.1

[102] ... As Wagner C.J. stated in Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3, at para. 46, “the integrity of the justification analysis requires that the legislative objective be properly stated”: see also Bedford, at para. 78; Carter, at para. 77. When those principles are applied here, it is apparent that the Crown’s stated purposes cannot be accepted, and the purposes stated in the Preamble must be refined.

[104] Put otherwise, since the Crown is obliged to demonstrate the need for the infringement under s. 1, the purpose it relies upon should relate to that infringement. Here, the infringing measure, s. 33.1, does not address the prosecution of intoxicated offenders generally. It applies only to those who commit violence-based offences while in a state of automatism due to self-induced intoxication. Properly stated, the object of s. 33.1 must be related to these offenders, and not to intoxicated violent offenders generally.

[105] In Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, McLachlin C.J. expanded on this point. She said that “[t]o establish justification, one needs to know what problem the government is targeting, and why it is so pressing and important that it warrants limiting a Charter right”: Sauvé, at para. 24. In Frank, at paras. 129-130, Côté and Brown JJ., dissenting but not on this point, counseled courts to look at the state of the law prior to the impugned legislation, and the scope that the legislature sought to regulate with the impugned law. It cannot be said that the government was targeting the general problem of intoxicated violence when it passed s. 33.1. When s. 33.1 was passed, the general problem of intoxicated violence had already been targeted by the Leary rules, as modified in Daviault, which s. 33.1 leaves untouched. Instead, the scope of s. 33.1 makes clear that it targets the one exception to the Leary rules created in Daviault, namely, violent offences committed by those who are in a state of automatism due to self-induced intoxication. It is an overstatement to claim that the mission of s. 33.1 is directed at intoxicated violence generally.

[109] When McLachlin C.J. and Major J., said, in Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, at para. 25 (dissenting on other grounds) that, “the proper question at this stage of the analysis is whether the Attorney General has asserted a pressing and substantial objective” (emphasis in original), they were not saying that the principles I have just identified should be forgotten and the s. 1 analysis is to be based solely on the government’s articulation of the objective. They were making the point that in judging whether a purpose is pressing and substantial, evidence is not required, and courts may consider the identified objective using common sense alone to determine if it is pressing and substantial.

[111] Properly stated, the underlying purposes or objectives of s. 33.1 are: (1) to hold individuals who are in a state of automatism due to self-induced intoxication accountable for their violent acts [the “accountability purpose”]; and (2) to protect potential victims, including women and children, from violence-based offences committed by those who are in a state of automatism due to self-induced intoxication [the “protective purpose”].

(b) Only the protective purpose is pressing and substantial

(i) The accountability purpose cannot serve as a purpose under s. 1

[113]... To override principles that deny accountability, for the purpose of imposing accountability, is not a competing reason for infringing core constitutional values. It is instead a rejection of those values. It cannot be that a preference for other values over constitutionally entrenched values is a pressing and substantial reason for denying constitutional rights. The point can be put more technically by examining two principles that govern s. 1 evaluation.

[114] First, legislation is unconstitutional if its purpose is unconstitutional: R. v. Big M. Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 333. Since the Charter principles at stake here describe when it is unconstitutional to hold someone criminally accountable (i.e. in the absence of voluntariness or penal negligence), passing legislation to impose criminal accountability despite those principles is an unconstitutional purpose. A purpose cannot at once be unconstitutional and a pressing and substantial reason for overriding constitutional rights.

(ii) The protective purpose is pressing and substantial

[117] In Daviault, Cory J. concluded that the protective purpose is not a pressing and substantial basis for infringing Charter principles. Given the infrequency of non-mental disorder automatism, there is no pressing need to remove the defence. At pp. 92-93, he explained:

The experience of other jurisdictions which have completely abandoned the Leary rule, coupled with the fact that under the proposed approach, the defence would be available only in the rarest of cases, demonstrate that there is no urgent policy or pressing objective which need to be addressed.

[118] However, this analysis from Daviault is not binding because it addressed the state of the common law, not the constitutionality of s. 33.1.[4]The “pressing and substantial purpose” holding is, therefore, open for reconsideration, and I am persuaded by my colleague that the existence of a pressing and substantial purpose should not turn solely on the infrequency of the problem addressed. As the tragic outcome in the cases now before this court demonstrate, even though acts of violence may only rarely be committed by individuals in a state of intoxicated automatism, the consequences can be devastating. This is enough to satisfy me that seeking to protect potential victims, including women and children, from violence-based offences committed by those who are in a state of automatism due to self-induced intoxication is a pressing and substantial purpose.

(2) Proportionality

(a) The rational connection test is not met

[119] The rational connection requirement describes the link between the legislative objective and the legislative means chosen to achieve that objective. This rational connection need not be proven on a rigorous scientific basis. A causal connection based on reason or logic may suffice: R.J.R.-MacDonald Inc., at paras. 137, 156. The Crown must establish a reasoned basis for concluding that “the legitimate and important goals of the legislature are logically furthered by the means the government has chosen to adopt”: Lavigne v. Ontario Public Service Employees Union, 1991 CanLII 68 (SCC), [1991] 2 S.C.R. 211, at p. 291.

[121] I agree with the trial judge on the latter point. As the Crown recognized, deterrence is the means s. 33.1 relies upon to achieve its protective purpose. The trial judge was unpersuaded, “as a matter of common sense, that many individuals are deterred from drinking, in the off chance that they render themselves automatons and hurt someone.” I share that position. Effective deterrence requires foresight of the risk of the penal consequence. I am not persuaded that a reasonable person would anticipate the risk that, by becoming voluntarily intoxicated, they could lapse into a state of automatism and unwilfully commit a violent act. Even if this remote risk could be foreseen, the law already provides that reduced inhibitions and clouded judgment, common companions of intoxication, are no excuse if a violent act is committed. It is unlikely that if this message does not deter, removing the non-insane automatism defence will do so. Even bearing in mind the admonition in R. v. Malmo-Levine; R. v. Caine,2003 SCC 74, [2003] 3 S.C.R. 571, at para. 177, to exercise caution in accepting arguments about the ineffectiveness of legislative measures, I am not persuaded that s. 33.1 furthers the public protection purpose.

(b) The minimal impairment test is not met

[123] In Morrison, at para. 68, Moldaver J. reaffirmed that “[t]o show minimal impairment, the party seeking to justify the infringement must demonstrate that the impugned measure impairs the right in question ‘as little as reasonably possible in order to achieve the legislative objective’”. This does not require Parliament to adopt the least restrictive means possible. The issue is whether Parliament could reasonably have chosen an alternative means which would have achieved the identified objective as effectively: R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, at p. 1341.

(i) Section 33.1 is not narrowly tailored

[126] The purported narrow tailoring of s. 33.1 does not provide a basis for a minimal impairment finding, as the identified limitations are not substantial.

[127] By its terms, s. 33.1 is not confined to general intent offences. Section 33.1 prevents self-induced intoxication from being relied upon to establish that the accused “lacked the general intent or the voluntariness required to commit the [violence-based] offence” (emphasis added)....

[129] Finally, and as already explained, the conception of the kind of self-induced intoxication that will undermine an automatism defence is aggressive in its scope. It is not confined to those who choose to become extremely intoxicated and to thereby court the remote risk of automatism. The Crown’s position is that anyone consuming an intoxicant, including prescription medication that they know can have an intoxicating effect, is caught, as are those who become intoxicated in the course of suicide attempts.

[130] I would also note that, for those who are caught by s. 33.1, the relevant Charter rights are not merely infringed or compromised. They are denied entirely. I do not agree that s. 33.1 is narrowly tailored.

(ii) Parliament did not have valid reasons for rejecting alternatives

[131] However, narrow tailoring is not the central concern. Ultimately, minimal impairment is tested not by whether efforts were made to confine its reach, but by whether, given the context, Parliament could reasonably have chosen less intrusive alternative means, which would have achieved the identified objective as effectively. In my view, the Crown has failed to demonstrate that there are not less intrusive reasonable alternatives.

[132] First, I agree with the trial judge that the option of a stand-alone offence of criminal intoxication would achieve the objective of s. 33.1. Making it a crime to commit a prohibited act while drunk is the response Cory J. invited in Daviault, at p. 100, and that was recommended by the Law Reform Commission of Canada: see Recodifying Criminal Law, Report 30, vol. 1 (1986), at pp. 27-28. It is difficult to reject this option as a reasonable alternative given the impressive endorsements it has received.

[134] Certainly, this option would also be less impairing than s. 33.1 since it does not infringe, let alone deny, the Charter rights that s. 33.1 disregards. It would criminalize the very act from which the Crown purports to derive the relevant moral fault, namely, the decision to become intoxicated in those cases where that intoxication proves, by the subsequent conduct of the accused, to have been dangerous.

[136] Nor can the rejection of the criminal intoxication option be justified on the basis that such an offence may have other constitutional problems of its own. I understand that the unconstitutionality of an option would make that option unreasonable, but I cannot accept that a constitutional infringement can be justified as a stratagem for avoiding another possible constitutional infringement.

[137] The alternative option that the Crown has not disproved is to simply permit the Daviault decision to operate. By design, the non-mental disorder automatism defence is difficult to access....

[139] I do not accept the Crown’s submission that accepting this “do nothing” option cannot operate as a more minimally impairing strategy because “it directly subverts Parliament’s goal by allowing extremely intoxicated violent offenders to escape liability.” Again, this is an accountability argument and, as I have indicated, given that the principles of fundamental justice at stake exist to define the constitutional preconditions to criminal accountability, the desire to impose accountability is itself an unconstitutional purpose.

[141] In the circumstances, I am satisfied that the Crown has not disproved that the Daviault regime is not a reasonable and equally effective but less impairing alternative to s. 33.1, in protecting potential victims from violence committed by those who are in a state of automatism as the result of self-induced intoxication.

(iii) Deferring to Parliament was not appropriate in this case

[142] Third, I disagree with the trial judge’s reliance on deference to support his finding that minimal impairment had been demonstrated. The trial judge was correct to turn his mind to this. The context-driven inquiries that s. 1 entails generally call for deference, particularly in examining minimal impairment. However, this is not a case where there is room for the kind of reasonable disagreement that could trigger deference. The minimal impairment test is simply not met.

(c) Overall proportionality is not achieved

[147] Second, the trial judge predicated his balancing on the generic proposition that “[t]hose who self-intoxicate and cause injury to others are not blameless.” He did so without apparent recognition of the expansive grasp of the concept of self-induced intoxication, catching as it does, even those who would fall into a state of automatism after choosing to become mildly intoxicated, and perhaps even those who are complying with a prescribed, medically-indicated drug that they know may cause intoxicating effects. The theory of moral fault that he relied upon cannot be sustained.

[148] Third, the trial judge gave undue weight to the extent to which s. 33.1 provides for the safety of the potential victims, including women and children. As I have indicated, I am persuaded that the protection thesis cannot be supported on a reasoned basis. Viewing the matter realistically, the deterrence that the law achieves must come from the Leary rules, as modified in Daviault, not from the added and remote prospect that if a rare and unforeseen case of automatism should happen to occur and lead to violence, non-mental disorder automatism is off the table.

[153] Put simply, the deleterious effects of s. 33.1 include the contravention of virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence.

(3) Conclusion on s. 1

[161] I would conclude that the Crown has not demonstrated that s. 33.1 is a demonstrably justifiable limit on the Charter rights at stake, in a free and democratic society. Accordingly, I would declare s. 33.1 to be of no force or effect, pursuant to s. 52(1) of the Constitution Act, 1982.

A. SHOULD MR. SULLIVAN BE PERMITTED TO CHALLENGE THE CONSTITUTIONAL INVALIDITY OF S. 33.1 FOR THE FIRST TIME ON APPEAL?

[182] The Crown agrees that the trial judge’s reasons disclose that s. 33.1 was the sole basis for Mr. Sullivan’s convictions of the violence-based offences. The Crown conceded that if this court declares s. 33.1 unconstitutional in the Chan appeal, Mr. Sullivan’s violence-based convictions should be set aside, even though he did not raise the constitutional validity of s. 33.1 at his trial. This concession is obviously correct since Mr. Sullivan’s case is still in the system and convictions that depend upon a law that is of no force or effect cannot be upheld on appeal.

R v El-Majzoub (ABPC) 

[June 9, 2020] Charter s.8 - Non-Fearon Compliant Cell Phone Search - Reasonable Expectation of Privacy in an Abandoned Cell Phone - 2020 ABPC 105 [The Honourable Judge G.G. Yake]

AUTHOR’S NOTE: The Fearon requirements for a cell phone search by police, incident to arrest are not particularly onerous and, at the time, were perhaps less than what could have been hoped for (ie. no search without a warrant). However, the limited complexity of the requirements seems to be, in practice, a true protection from prying police eyes. It seems that compliance is simply too much work for some busy police officers. That suits the defence just fine. 

The case also offers a useful factual example that a reasonable expectation persists in an abandoned cell phone without password protection. 

Pertinent Facts

[1] Mr. El-Majzoub (the “Applicant”) is charged with seventeen Criminal Code offences, four offences under section 5(2) of the Controlled Drugs and Substances Act (“CDSA”) and two offences under the Traffic Safety Act of Alberta. It is alleged that he committed all of the offences on August 24, 2019 at Red Deer, Alberta. He has filed and served two Charter Notices.

[2] In his Charter Notice filed on April 14, 2020 he alleges that his section 8 Charter Rights to be free from unreasonable search and seizure were breached when the RCMP investigator conducted a warrantless search of the contents of an Apple iPhone that was seized from a motor vehicle that he was operating shortly before he was arrested on August 24, 2019.

[8] Except as otherwise stated, all of the events occurred at Red Deer, Alberta on August 24, 2019.

[9] A van owned by Ed Soroka was stolen from his residential garage in Sylvan Lake, Alberta sometime between 7 p.m. on August 22, 2019 and 6 a.m. on August 23, 2019. Mr. Soroka has never met or spoken with the Applicant.

[10] Acting on a tip received at 9:41 p.m. on August 24, Cst. Barnes, in plain clothes and operating an unmarked police vehicle, located the van shortly before 10 p.m. that night as the Applicant was driving it. The Applicant was the sole occupant of the van.

[11] Cst. Barnes confirmed by its licence plate number that the van was reported as stolen and followed it for a short period of time, until the Applicant drove to and parked at the Cash Casino parking lot near the intersection of 67 th Street and Taylor Drive.

[12] After parking, the Applicant exited from the driver’s side door, leaving the van locked. Cst. Barnes then pulled his unmarked police vehicle in front of it and the Applicant walked toward the driver’s side door of the police vehicle.

[13] Cst. Barnes opened the driver’s side door of his police vehicle, identified himself as a police officer and told the Applicant that he was under arrest.

[14] The Applicant immediately ran away and Cst. Barnes ran after him. A fairly long foot chase ensued, at the end of which the Applicant was arrested by Cpl. McDiarmid.

[17] Cst. Barnes pursued the Applicant to the rear corner of a nearby motor vehicle dealership. At that location, Cst. Barnes was able to trap the Applicant between two motor vehicles. As the Applicant crouched facing Cst. Barnes he held the tactical knife pointed toward his own throat and chest, with the blade exposed.

[20] Cpl. McDiarmid drew his sidearm and told the Applicant to drop the knife. After a brief hesitation, the Applicant dropped the knife on the ground and Cpl. McDiarmid holstered his weapon.

[21] Cpl. McDiarmid believed that the Applicant continued to present a risk to his and Cst. Barnes’ safety, because the knife was still easily within the Applicant’s reach.

[22] In order to address that concern, Cpl. McDiarmid decided to use physical force to arrest the Applicant. He did so by placing both of his hands on the Applicant’s body and tossing him a distance of about six feet, to the ground. There is no evidence that this force caused the Applicant any injury, or that the Applicant complained that he was injured.

[30] The Applicant was arrested at 10:01 p.m. for possession of stolen property, obstruction of a peace officer, resisting a peace officer and assaulting a peace officer with a weapon.

[31] At 10:16 p.m. Cst. Wood arrived at the scene and confirmed the van was stolen. At 10:29 p.m. a tow truck driver called to the scene by the police opened a door of the van and Cst. Wood commenced his warrantless search of it. He located and seized a number of items from inside the van, including:

...

• a Champion brand backpack found on the front passenger seat, within which was a smaller leather bag containing drugs and other items relating to the CDSA charges;
• a rifle in a case on the floor between the second and third row of seats; and
• an Apple iPhone found on the centre console.

None of these items were in the van when it was stolen.

[33] The iPhone was seized from the centre console of the van at 10:44 p.m. It was not locked or password protected. Cst. Wood swiped it and determined it was the Applicant’s iPhone. It was not searched at that time.

[34] At 11:26 p.m. Cst. Wood searched the iPhone at the RCMP detachment by scrolling through various messages on it. He did so without first obtaining a search warrant. He testified that this search was conducted incidental to the arrest of the Applicant and for the purpose of determining whether it contained evidence that the Applicant was trafficking in drugs.

[36] Cst. Wood photographed the screen images of text messages that he believed provided evidence that the Applicant was trafficking in drugs. These photographs are entered as exhibit V3 and they do describe activities relating to drug trafficking.

[40] The text messages depicted in exhibit V3 are crucial to the Crown’s allegation that the purpose of the Applicant’s possession of the drugs seized from the van was to traffic them.

Charter s.8 and a Fearon Search of a Cell Phone Gone Wrong

[51] In the present case, in the context of section 8 of the Charter, the Applicant bears the burden of proving, on a balance of probabilities, that: (i) he had a direct interest in the subject matter of the search, (ii) he had a reasonable expectation of privacy in the subject matter of the search, i.e. that he subjectively expected it would be private, and (iii) that this expectation was objectively reasonable. If he fails to meet that burden of proof then he will not have standing to bring this application: R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128 at para 45; R v Marakah, 2017 SCC 59.

[78]  To have standing to invoke the jurisdiction of the court and claim section 8 Charter protection, the Applicant must first establish a reasonable expectation of privacy in the subject matter of the search, i.e. that he subjectively expected it would be private and that expectation is objectively reasonable: R v Edwards, at para 45.

[79] As was stated in R v Mills, 1999 3 SCR at para 108, privacy is not an all or nothing right. Germaine J. in R v Padzer, et al, 2015 ABQB 493 at para 128 described “nuances” in privacy expectations:

The issue of standing is an important one in Charter litigation. If an individual has no reasonable expectation of privacy in a thing or record being searched, then the individual is said to have no standing to challenge the warrant, authorization or order that led to the search. The right to advance a Charter challenge ends if the litigant is a true third party. These two concepts are heavily intertwined. There are, however, nuances, and even a lightly connected privacy interest may arguably give rise to standing. Cases on this subject are very fact specific. Real three-dimensional objects (for example houses, cars, lockers) usually provide an obvious and objective basis to evaluate who has a privacy interest. Like a switch it is either on or off, but where the object seized, in this case text mail messages and cell phone data, become more informational, the “switch” may become more like a “dimmer switch” which can have a flow of a privacy interest restricted but still allow a trickle of interest to gain at least “standing” to challenge the production order.

[80] The court considers the totality of the circumstances to determine whether there was a reasonable expectation of privacy. The factors to be considered as set out in Edwards, include:

•       presence at the time of the search;
•       ownership of the property;
•       possession or control of the property or place searched;
•       historical use of the property or item;
•       the ability to regulate access, including the right to admit or exclude others from the place;
•       the existence of a subjective expectation of privacy; and
•       the objective reasonableness of that subjective expectation of privacy.

[81] The inquiry must be made on neutral terms: “[T]he inquiry turns on the privacy of the area or thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought”: R v Wong, 1990 CanLII 56 (SCC), [1990] 3 SCR 36, at pp. 49-50.

[82] The evidentiary foundation required to establish a subjective expectation of privacy is modest: R v Patrick, 2009 SCC 17, at para 37.

[83] While it is common for persons who claim to have a subjective expectation of privacy in the subject matter of the search to so testify, that is not always necessary. Claimants may rely on the Crown’s theory of the case to establish a direct interest in that subject matter, and to establish a subjective expectation of privacy in the subject matter of the search. However, it is still necessary to consider whether the Applicant’s subjective expectation of privacy was objectively reasonable in the totality of the circumstances of the particular case:  R v Jones 2017 SCC 60, at para 32.

[84] In this case the Crown concedes that the Applicant can rely on its theory that he authored the messages found on the iPhone, and that he was in possession of the van and its contents, and that he therefore had a subjective expectation of privacy in those items and in the van.

[85] With regard to the electronic conversation found on the iPhone, the Crown concedes that, if the van and its contents were not abandoned, then the Applicant had a subjective expectation of privacy that was objectively reasonable.

[86] R v Marakah, 2017 SCC 59, established the principle that a person may retain a privacy interest in text messages stored on a cell phone owned by the recipient of the messages.

[87] After Marakah, the Supreme Court in R v Reeves, 2018 SCC 56, confirmed that the court must consider the totality of the circumstances when assessing whether the Applicant’s subjective expectation of privacy is objectively reasonable, and that, in the context of an informational privacy claim, four lines of inquiry may assist in guiding the analysis:

•       an examination of the subject matter of the alleged search;
•       a determination as to whether the claimant had a direct interest in the subject matter;
•       an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and
•       an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.

[88] In R v Sandhu, 2018 ABQB 112 the court employed this framework to the analysis of a claim rooted in informational privacy. The court at para 31 reiterated the principle stated in Patrick that it is meant to have a normative component that will necessitate value judgments from the “… independent perspective of a reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy” (see also, Reeves, at para 28, citing Tessling, at para. 42; Spencer, para. 18; Patrick, at para 14).

[89] The facts in the case at bar establish that the Applicant was driving a recently stolen vehicle. There is no evidence that he had any history of possessing or using that vehicle or that it was lawfully in his possession. There is no evidence describing how or when he came into possession of it. The evidence establishes that he did not have the consent of the owner to possess or to drive that vehicle.

[92] A reasonable expectation of privacy in a vehicle may arise in cases where the claimant does not own the vehicle. For example, in R v Huete, 2018 BCSC 637 the driver of a rental car was found to have a reasonable expectation of privacy in that vehicle, and in R v Campbell-Noel, 2019 ONSC 430 a driver in lawful possession of a vehicle loaned to him by its owner was also found to have a reasonable expectation of privacy in that vehicle.

[93] In R v Balendra, 2019, ONCA 68, at paras 53-55 the Ontario Court of Appeal found that the driver of a stolen vehicle did not have a reasonable expectation of privacy in it in the absence of evidence establishing that he owned it, had authorization from the registered owner to operate it or had the ability to regulate access to it. As a result, the Ontario Court of Appeal held that items found in the van (i.e. credit cards) were properly admitted into evidence at trial.

[94] The fact that the Applicant parked and locked the vehicle immediately before he fled on foot from Cst. Barnes does not lend much support to his argument that his subjective expectation of privacy in that vehicle was objectively reasonable.

[95] By fleeing from Cst. Barnes he effectively lost control of the van and its contents. As stated in Marakah at para 38, control, ownership, possession and historical use have long been considered relevant to determining whether a subjective expectation of privacy is objectively reasonable

[96] In this case, the Applicant’s flight from Cst. Barnes is inconsistent with a reasonable expectation of privacy but it is not the exclusive factor that informs the existence of a reasonable expectation of privacy. It is but one factor that must be considered when using the normative approach and considering the totality of the circumstances in order to determine whether the Applicant had an objectively reasonable expectation of privacy. Other Edwards factors that are relevant include:

•       he was not present at the time of the search;
•       he had no lawful right to possess or control the van or the keys to it;
•       he had no direct interest in the van, did not own it and he did not have the consent of the owner to possess it or to operate it;
•       while he was able to lock the vehicle after he parked it, he did not have the right to lawfully admit or exclude others from entering it; and
•       there is no evidence that the Applicant retained possession of the keys after he left the vehicle in the parking lot.

[97] This analysis leads me to conclude that the Applicant’s subjective expectation of privacy in the van was not objectively reasonable.

[98] The Applicant’s failure to demonstrate a reasonable expectation of privacy in the van does not extinguish his claim that he had a reasonable expectation of privacy with respect to the items seized from inside that vehicle. The court must determine that issue separately, considering the totality of the circumstances and using the same normative approach: Campbell-Noel, at para 140-142.

The iPhone Search

[101] Marakah establishes that:

•       the purpose of section 8 of the Charter is “to protect a biographical core of information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state” (para 29);
•       the potential for revealing private information is a factor to consider in determining whether an electronic conversation attracts a reasonable expectation of privacy and is protected by section 8 of the Charter (para 29);
•       the focus is not on the actual contents of the messages the police have seized, but rather on the potential of a given electronic conversation to reveal personal or biographical information – what matters is whether, in the circumstances, a search of an electronic conversation may betray information which tends to reveal intimate details of the lifestyle and personal choices of the individual such that the conversation’s participants have a reasonable expectation of privacy in its contents, whatever they may be (para 29); and
•       evidence of illegal activity by the person claiming a reasonable expectation of privacy naturally falls within the scope of core biographical activity that is protected, and a warrantless search of a private place cannot be justified by after-the-fact discovery of a crime (paras 32-33).

[102] For the purpose of determining whether the Applicant had an objectively reasonable expectation of privacy in the information on the iPhone, the subject matter of the search is the informational privacy in the subject matter of electronic conversations.

[103] The Alberta Court of Appeal in R v Beairsto, 2018 ABCA 118 at paragraphs 10-15 notes that Marakah sets forth the following principles:

•       the subject matter of the search must be defined functionally, and not narrowly in terms of physical acts, physical space or modalities of transmission;
•       the subject matter of the search must be identified by reference to the nature of the privacy interests potentially compromised by the state action, using a broad and functional approach to the question, examining the connection between the police investigative technique and the privacy interest at stake; and
•       the court should look at not only the nature of the precise information sought, but also at the nature of the information it reveals.

[105] In the present case the Crown has conceded that, if the van and its contents were not abandoned, the Applicant had a subjective expectation of privacy in the iPhone that was reasonably objective.

[106] In my opinion this concession is properly made. Assessing the contents of the search leads to the conclusion that the Applicant had a reasonable expectation of privacy in the conversation which linked him to alleged criminality: Marakah at paragraph 54. The fact that the iPhone was not locked is not determinative of this analysis: R v Fearon, 2014 SCC 77 at para 53.

[107] The evidence establishes that the Applicant owned the iPhone and had a direct interest in the subject matter of the search, and his subjective expectation of privacy in the subject matter of the search is an objectively reasonable expectation, but for his abandonment of the iPhone when he fled from Cst. Barnes. This is an act that is inconsistent with his assertion of a continuing constitutionally protected privacy interest in the subject matter of the search.

[108] In Marakah, at para 35, Justice Moldaver (in dissent but not on the issue of control) said:That said, control is not the exclusive consideration that informs the existence of a reasonable expectation of personal privacy. And there are exceptional cases where control is not necessary. Where a loss of control over the subject matter is involuntary, such as where a person is in police custody or the subject matter is stolen from the person by a third party, then a reasonable expectation of personal privacy may persist…. (footnote omitted)

[109] In the present case the Crown argues that when the Applicant fled from Cst. Barnes, he abandoned the iPhone, and thereby abandoned the subject matter of the search. Abandonment is generally fatal to claims of reasonable expectation of privacy:  Patrick, at paras 2 and 20, 22-23 and 25; R v Gambilla, 2015 ABQB 40 at para 163; R v Krafcyzyk, 2011 ABQB 107.

[110] I am satisfied that the vehicle and its other contents were abandoned. However, as noted in Gambilla, at paragraph 218, the privacy interests in the contents of a conversation in a cell phone raise special considerations. Unlike the privacy interests in other “things,” the data from a cell-phone conversation raises distinctive privacy interests (at para 225, see also, Marakah, at paras 25-30, Villaroman, 2018 ABCA 220 at para 3 and Beairsto, at para 13).

[111] On the basis of the special privacy interests in the data of the iPhone, I find that the Applicant had a diminished or qualified privacy interest in the seized conversation, and that he has standing to make a section 8 Charter application in relation to the search of the iPhone (Le, 2019 SCC 34, at para 136, citing Cole, at paras. 8-9, Marakah, at para. 29, Tessling, at para. 22).

[112] I will therefore consider whether the search of the iPhone was reasonable within the meaning of section 8 of the Charter. In the event that I am in error with regard to the Applicant’s reasonable expectation of privacy in the van and the other items found in it, I will also provide my analysis of the reasonableness of the search of the van and those items.

[114] The Crown says the searches were incidental to the arrest of the Applicant. The existing framework for a valid search incidental to arrest authorizes a broad range of searches. It requires that 1) the individual has been lawfully arrested; 2) the search is truly incidental to the arrest of the Applicant, in the sense that it is for a valid law enforcement purpose related to the reasons for the arrest; and 3) the search is conducted reasonably:  Fearon at para. 27.

[115] In Fearon the majority considered the reasonableness of searches incidental to arrest at para. 25:

25       I turn finally to R v Nolet, 2010 SCC 24 . . . One of the issues was whether the search of the vehicle some two hours after the driver’s arrest for possession of the proceeds of crime was lawful. The Court unanimously upheld the legality of the search as being incidental to the accused’s lawful arrest. Binnie J reiterated the important point made in Caslakeand Golden [2001 SCC 83] that a search is properly incidental to the arrest when “the police attempt to achieve some valid purpose connected to the arrest, including the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence”: para 49, quoting Caslake, at para. 19. As Binnie J. put it, “[t]he important consideration is the link between the location and purpose of the search and the grounds for the arrest”: para. 49. He repeated the propositions, settled in other cases, that, first, reasonable and probable grounds are not required, and second, the basis of the warrantless search is not exigent circumstances, but connection or relatedness to the crime for which the subject has been arrested: paras. 51-52

[120] The search of the items in the van and the seizure of the iPhone constituted a “reasonable step-up” in the investigation, as new evidence was discovered during the course of the search of the van:  R v Zolmer, 2019 ABCA 93, at para. 60, citing Caslake, Fearon and Saeed.

[121] The search of the iPhone was not conducted immediately at the scene of the Applicant’s arrest but at the police detachment at 11:26 p.m., one hour and twenty-five minutes after the Applicant was arrested, and forty-two minutes after the iPhone was found in the van and seized.

[122] The purpose of that search was to determine if it contained evidence implicating the Applicant in the offence of possession of illicit drugs for the purpose of trafficking contrary to section 5(2) of the CDSA, and to preserve that evidence from remote wiping.

[126] With regard to cell phone searches, as noted in Balendra, Fearon mandates a restrictive approach to the “discovering evidence” purpose of a search. It will only be lawful if the investigation of the charges upon which the accused has been arrested will be stymied or significantly hampered absent the ability to promptly search the cell phone incidental to arrest. At para 44 of Balendra the Court notes that at para 76 of Fearon Cromwell J stated:

…it is not enough that a cell phone search in general terms is truly incidental to arrest. Both the nature and the extent of the search performed on a cell phone must be truly incidental to the particular the arrest for the particular offence.[Emphasis in Balendra]

[127] In the present case there is no evidence that the investigation of the offences for which the accused had been arrested at the time of the search of the iPhone would be stymied or significantly hampered absent that search, and Cst. Wood testified that the purpose of the search of the Applicant’s iPhone was to gather evidence of an offence contrary to section 5(2) of the CDSA. The Applicant had not been arrested or charged with that offence and was not being detained on that offence when the iPhone was searched.

[128] It follows that while the searches of the van and the items found in the van excepting the iPhone were authorized as searches incidental to the arrest of the Applicant, the search of the iPhone was not.

[131] Applying the criteria for searches of a cell-phone incidental to arrest found in Fearon, at paras 75-83, I am troubled by Cst. Wood’s failure to seek a search warrant or make any note or create any record of the iPhone search, or the information he viewed that is not captured by the photographs of the text messages that comprise exhibit V3. It is well established that there are procedural safeguards for computer and cell phone searches, particularly with regard to search warrants and careful note taking. Cst. Wood’s failure to follow those procedures renders that search unreasonable.

The 24(2) Analysis

Seriousness of the Violation

[137] The more serious or deliberate the breach, the greater is the need for the court to dissociate itself from the state conduct that lead to the breach, by excluding evidence linked to that breach in order to preserve public confidence in and ensure state adherence to the rule of law: Grant at para 72.

[138] The breach in this case was serious. With the exception of the messages that comprise exhibit V3, Cst. Wood failed to make any record of any of the messages or any of the other information he viewed during the course of the search. According to his testimony he viewed a significant amount of information that was personal to the Applicant, in addition to the messages that comprise exhibit V3.

[139] He knew, or reasonably ought to have known, that he was required to properly document and record that search. He offered no explanation for not doing so, except his opinion that that information was not relevant to his investigation.

[140] Cst. Wood’s reason for searching the iPhone without a warrant was that it might be “remotely wiped”. His testimony in this regard was extremely brief and lacked any description of what remote wiping entails, or why he thought the Applicant’s iPhone was vulnerable to remote wiping. There was no other evidence supporting this concern. On the evidence before me I cannot find that there was a real risk of remote wiping, and I cannot find that the warrantless search of the iPhone was made in good faith to address a real risk of remote wiping.

Impact on the Charter-protected Interests of the Accused

[146] The serious breach of section 8 of the Charter in this case impacted directly on the Applicant’s protected privacy interests. It cannot be properly described as a fleeting or a technical breach, and it was certainly intrusive.

[147] This factor also strongly favours exclusion.

Balancing

[154] There has been considerable discussion of this balancing recently (see, R v RD & TS, 2019 ONSC 4542, citing Le and Omar, 2019 SCC 32). The first and second inquiries make a strong case for exclusion. The third inquiry does not tip the balance in favour of admissibility. As a result, I find that the long-term repute of the administration of justice will be better served if the evidence collected as a result of the unlawful search of the Applicant’s iPhone is excluded, and therefore it shall not be admitted as evidence in the trial.

Conclusion

[155] Based on the foregoing, I am satisfied that there has been a breach of the accused’s section 8 Charter to right to be free from unreasonable search in relation to the iPhone. I order that this evidence be excluded under section 24(2) of the Charter.

R v Virk (ONCJ)

[June 5, 2020] – Charter s.8 - RPG for Impaired Arrest - Charter s.10(b) - Call to Third Party that has Lawyer's Number – 2020 ONCJ 278 [Dellandrea J.]

AUTHOR’S NOTE: This case offers two useful insights. On the s.8 front, the inexperienced officer drew a very narrow distinction between reasonable suspicion and reasonable grounds.  The distinction is difficult to apply to a specific set of facts, but here the additional observation "short and deliberate steps" to the police cruiser were insufficient to raise the suspicion to reasonable grounds. On the s.10(b) front, the same officer simply forgot to inform police at the station that the accused had asked to call his mother (who had a number for his lawyer).  That was found to be a serious s.10(b) violation as the rest of the situation resulted in a call to duty counsel.

Overview

[2] There was no dispute in this case that Mr. Virk was operating a vehicle on the day in question, nor that the analysis of two suitable samples which he later provided at the police station showed his blood alcohol concentration to be over the legal limit.

[3] Rather, Mr. Virk’s defence in this case focused on whether, prior to obtaining those breath samples, the police had violated his rights under sections 8, 9 and 10(b) of the Charter – by proceeding to arrest him for impaired operation and demanding a sample of his breath in the absence of reasonable grounds, and by failing to facilitate access to his counsel of choice. The defendant also argued that the evidence as a whole failed to establish impairment beyond a reasonable doubt.

ISSUE #1: Did Cst. Chiang have reasonable and probable grounds to arrest Mr. Virk for Impaired operation, and to demand a sample of his breath into an approved instrument?

[21] Cst. Chiang had been a police officer for one year at the time of this incident. The officer candidly conceded that this was his first ‘solo’ impaired investigation.

[22] The observations which Cst. Chiang said he made leading up to the first ASD demand of the defendant were as follows:

(1) He observed that the defendant’s eyes were slightly red, which he attributed to Mr. Virk having been crying;

(2) He detected a faint odour of alcohol from within the vehicle (which was occupied by two adults), which he “could not isolate;”

(3) He saw some momentary difficulty by the defendant in retrieving his wallet from his pants pocket, beneath his seatbelt;

(4) He observed no further difficulty by the defendant in removing his driver’s license from his wallet and presenting it to the officer;

(5) Upon asking Mr. Virk to exit his vehicle, he observed “a little bit of a balance issue” when the defendant stepped out of his car.

[23] Cst. Chiang testified that based on the foregoing indicia, he suspected that Mr. Virk “had been drinking,” so he made the first of two demands for a breath sample into the ASD. After the first demand, Mr. Virk asked Cst. Chiang if he could refuse. The officer testified that he smelt the same “faint” odour of alcohol that he had noticed before, but this time it seemed to be coming from the defendant. Cst. Chiang told Mr. Virk that he could be charged with an offence if he refused to provide a sample into the ASD, and he renewed his demand a second time while he and Mr. Virk walked toward the cruiser for that purpose. The officer said Mr. Virk walked “slowly and deliberately” to the cruiser, where he showed him the ASD device. Mr. Virk said nothing. Cst. Chiang immediately arrested him for impaired driving.

[24] On his own evidence, the only additional observation which Cst. Chiang described making – between forming his reasonable suspicion that Mr. Virk had alcohol in his body, in support of the ASD demand, and forming his grounds for belief that the defendant was impaired – was of the few “slow and deliberate steps” which he described Mr. Virk taking during the short trip to his cruiser. Cst. Patterson testified that he had seen “no issues” with Mr. Virk’s movements as he exited his car and walked to the cruiser.

[27] There is no mathematical formula of mandatory criteria for objectively reasonable and probable grounds to arrest for impaired operation to be said to exist.  The absence of certain factors which might commonly be found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds, where the observed indicia and other information otherwise support them (Bush, 2010 ONCA 554 (CanLII), [2010] O.J. No. 3453 (C.A.) at para 56.).  The arresting officer may make the assessment of reasonable and probable grounds quickly, provided that he or she also does so competently (Bush, at para. 67).

[32] I conclude that while Cst. Chiang might have had a subjective belief in Mr. Virk’s impairment, his arrest of the defendant for impaired driving was not supported by objectively reasonable and probable grounds. The grounds which the officer purported to rely on for making the arrest had expanded only marginally from those which he had relied up on to form his reasonable suspicion that the defendant had some alcohol in his body, upon which he made a lawful ASD demand. Indeed, the officer was still in the process of attempting to facilitate that initial demand by demonstrating the use of the ASD device, when he abandoned this objective in favour of moving precipitously to arrest.

[33] The gap between reasonable suspicion and objectively reasonable and probable grounds for belief requires considerably more than what was relied on by the officer here: namely, his attribution of a faint odour of alcohol to the defendant, which Cst. Chiang himself described as “relatively the same.” This factor did no more than to support the officer’s reasonable suspicion as to alcohol consumption, as originally believed. The officer’s grounds for arresting the applicant for impaired operation were not objectively reasonable.

[34] Accordingly, I conclude that the detention of Mr. Virk became unlawful when Cst. Chiang aborted the ASD process and arrested him without legally supportable grounds for impaired driving. This conduct amounts to a breach of the applicant’s rights under s. 9 of the Charter.

[35] It likewise follows that there was no legal basis for the breath demand made of the defendant into the approved instrument following his arrest, resulting in a breach of his rights under s. 8 of the Charter.

ISSUE #2: Did investigators breach Mr. Virk’s rights under s. 10(b) of the Charter by failing to facilitate his right to communicate with his counsel of choice?

[36] Mr. Virk was arrested by Cst. Chiang for impaired operation at 10:32 p.m. Cst. Chiang went on to provide the defendant with his rights to counsel between 10:33 and 10:38 p.m. It appeared to Cst. Chiang that Mr. Virk understood his rights. In response to the last question from the officer, of: “do you want to call a lawyer now?” the defendant answered “yes. Can I call my mom, she has a lawyer I can get in touch with.” Cst. Chiang recorded Mr. Virk’s response verbatim in his notebook at the roadside, gave the cautions and breath demand, then transported Mr. Virk to the division.

[37] Mr. Virk arrived at the division at 11:24 p.m. He was paraded by Cst. Chiang before the cells officer, who asked the defendant if he wanted to call any particular lawyer. Cst. Chiang testified that it must have “slipped his mind” at that point to tell the cells officer that Mr. Virk had made a specific request at the roadside to call his mother to get his lawyer’s number.

[38] In cross-examination, Cst. Chiang conceded Mr. Virk might have also asked him again about his mother on route to the division, and that in hindsight, that “this avenue should have been explored” on the defendant’s behalf.

[39] When Mr. Virk responded to the cells officer, saying that he could only remember his lawyer’s first name (“David”). At this point, Cst. Feasby, the breath technician, retrieved a lawyer’s directory and started looking through it for a lawyer named “David.” Cst. Chiang admitted that did not tell Cst. Feasby about Mr. Virk’s request to speak to his mother for a lawyer’s name. He testified that when he other officers took up other means of “helping” the defendant to identify his lawyer, he “didn’t feel it was necessary” to speak up about the defendant’s request to call his mother.

[40] Cst. Chiang saw Cst. Feasby print out a long list of names – he believes from the law society website – of lawyers with the first name “David.” Cst. Chiang agreed that “David” is a common name, and that the list which was produced was over 4 pages in length.

[41] Cst. Chiang called duty counsel at 11:50 p.m., requesting a callback for Mr. Virk.

[42] In the meantime, Mr. Virk was given the long list of names which Cst. Feasby had printed. The defendant was not able to identify his lawyer’s name from the list which was provided, so Cst. Chiang escorted him to the interview room where he was connected with duty counsel. Cst. Chiang has no notes of Mr. Virk ever having asked to speak with duty counsel.

[59] As Justice Harris recently observed in Hamasaki, (2020) ONSC 2579, when the state “meddles in the choice of counsel” it often results in a functional detriment to the accused, and risks promoting the appearance of real unfairness.  Section 10(b) of the Charter was designed as an important safeguard in adversarial criminal proceedings in which the individual citizen is inevitably disadvantaged against the power of the state.

[60] The right to counsel of choice aims to level the playing field, by assuring detainees of prompt access to counsel who they trust to protect their interests, as their only available counterweight against the mercy of the state in whose control they remain.  It is thus among the most fundamental rights protected by the Charter, and conjoined with the right to silence:  Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151 at para. 109; Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 at para. 191; Sinclair, 2010 SCC 35 at paras. 24-29.

[61] The right to retain and instruct counsel of choice has been interpreted to include the right to request the opportunity to call third parties to assist in this exercise (Kumarasamy, (2002) 22 M.V.R. (4^th) 234; Paul, [2017] O.J. No. 2593).

[63] Rather, the Crown suggests that this lapse of the investigator’s duty was inconsequential, and that it was the defendant who failed to pursue his right to counsel with reasonable diligence.

[64] I cannot agree.

[66] Cst. Chiang acknowledged that what he should have done in this case was to ensure that Mr. Virk’s request to call his mother was promptly conveyed to the booking sergeant, as well as to the breath technician, such that his wish to speak with counsel of choice could be facilitated. But that vital piece of information, central to Mr. Virk’s exercise of his Charter guarantee in s. 10(b), was never referred to, or acted upon in any way, by any officer.

[67] As a result, Mr. Virk was left believing that the option of calling his mother for help was a “lost cause.” I accept Mr. Virk’s testimony with respect to the state of confusion that he found himself in, when asked by the cells officer if he had a lawyer he wanted to call, as though for the first time. The defendant still wondered if perhaps Cst. Chiang had perhaps called his mother and was awaiting her response, or if in fact that option wasn’t allowed.

[68] So the defendant did the best he could to articulate the spirit of the same request: he told the police that he did have his own lawyer, whose first name was all that he could recall. The steps taken by officers in response to this second expression of the wish for counsel of choice by Mr. Virk were also inadequate. The hastily produced list of several hundred lawyers named “David” - given to the defendant to sift through - could hardly be described as an effective discharge of investigators’ duty to facilitate Mr. Virk’s counsel of choice. Another obvious option would have been to ask Mr. Virk if there was anyone he could think of to call (such as a parent) who might know his lawyer’s last name.

[69] The Supreme Court of Canada in Willier described the obligation of the police created by s. 10(b) as the requirement to give detainees a “reasonable opportunity” to consult counsel of choice: 

Detainees who choose to exercise their s. 10(b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning the detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee's reasonable diligence in attempting to contact counsel: R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435; R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138; R. v. Smith, 1989 CanLII 27 (SCC), [1989] 2 S.C.R. 368. What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole...

[70] Justice Ricchetti recently confirmed in Wijesuria that there is no “extension” of the police's Charter obligation, beyond requiring that they take reasonable steps to provide the detainee with a "reasonable opportunity" to facilitate contact with counsel of choice, assessed in all the circumstances (at para 68).

[71] The assessment of the adequacy of the police’s implementation of the right to counsel asks not what the detainee would have done to facilitate their access to counsel of choice, but rather whether the police took all steps that were reasonable in the circumstances (Wijesuria, at paras. 64-71; O’Shea, 2019 ONSC 1514 at para. 22).

[72] Mr. Virk had made his specific request of Cst. Chiang to call his mother for his lawyer’s number immediately upon arrest.  Not only did investigators fail to take all reasonable steps that were available in the circumstances, they failed to take the most obvious one which was available for them to take.

[73] Mr. Virk’s  interpretation of his request as having been either dismissed or ignored was entirely rational.  The applicant felt overwhelmed by the imbalance of power between himself and the police, and once his second attempt at asking for a particular lawyer appeared to have also failed, he was put in contact with duty counsel.

[74] I accept Mr. Virk’s evidence that he never asked to speak to duty counsel. Neither Cst. Chiang nor Cst. Feasby had made a notation of any such request ever been made.  Rather, I find that Cst. Chiang took it upon himself to contact duty counsel pre-emptively, which he himself acknowledged the possibility of doing.

[75] It is well-recognized that where investigators “short circuit” the right to counsel, by presenting duty counsel as the only available option, then they render the independent choice guaranteed by s. 10(b) meaningless (Vlasic, 2016 O.J. No 6892, at para 30; Della-Vedova, [2018] O.J. 1596, at para 58).  This is precisely what happened in this case.

[76] I conclude that collectively, the investigators in this case failed to fulfil their duty to facilitate the defendant’s expressed wish for counsel of choice, thereby breaching his right to counsel under s. 10(b).

ISSUE #3:   24(2) Analysis

Seriousness of the Violation

[80] An arrest without reasonable and probable grounds is a necessarily a serious abuse of power, given that it results in the deprivation of an individual’s liberty in the hands of the state. While I have found that Cst. Chiang’s precipitous arrest of Mr. Virk for impaired operation was likely prompted by his relative inexperience at the time, the fact remains that the exacting requirement of reasonable and probable grounds was not properly understood or respected here.

[81] The initial breaches were compounded by the more serious lapse of police duty which followed, when Cst. Chiang essentially ignored Mr. Virk’s very specific request to call his mother to obtain his lawyer’s number, in order that he might exercise his right to counsel of choice. No further steps were taken by Cst. Chiang or any other officer to facilitate this request....

Impact on the Charter-protected Interests of the Accused

[83] The Crown argues that the impact of the breach of Mr. Virk’s s. 10(b) rights was minimal because the defendant was able to consult with duty counsel. I’m unable to accept this submission, in the applicant’s case, given the clarity of the request which he had made for assistance in facilitating his right to counsel of choice, and the primacy of that guarantee. I have accepted Mr. Virk’s evidence that he was made to feel that speaking with duty counsel was his only option, after his request for help in calling his own lawyer proved futile.

Balancing

[87] Mr. Virk was deprived of his liberty when he was arrested in circumstances in which did not supply objectively reasonable grounds for his arrest. The consequential demand for a sample of his breath was therefore a warrantless search. The significant power imbalance between he and stage agents was exacerbated when he was denied his exercise of the very right designed to protect him from this vulnerability, and which he had specifically requested: the right to consult counsel of choice.

[88] While the breath test results are reliable evidence, and society had a very legitimate interest in the prosecution of drinking and driving cases, the compounded and serious breaches of the applicant’s rights in this case require that the evidence be excluded. I believe that a reasonable and informed member of the public also has an interest in ensuring that such prosecutions are fair and that the police live up to the expectations for which they are responsible under the Charter. The long-term reputation of the justice system requires that the court distance itself from conduct which significantly fails to meet this exacting standard.

[89] As a result, the results of the breath samples are excluded and the Over 80 charge against Mr. Virk is dismissed.