The Defence Toolkit – June 4, 2022

This week’s top three summaries: R v Bissonnette, 2022 SCC 23: s.12 #rehabilitation and punishment, R v Peterson, 2022 ABQB 365: destroyed #evidence, and R v Grant, 2022 ONSC 2703: #marijuana smell test

This week's top case deals with sentencing in multiple murder cases. For great general reference on the law of sentencing, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.

R v Bissonnette, 2022 SCC 23

[May 27, 2022] Charter s.12: Punishment of Consecutive Parole Ineligibility in Multiple Murder - Effect on Rehabilitation [Reasons by Wagner C.J. with Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring]

AUTHOR’S NOTE: The end result of the immediate unavailability of consecutive periods of parole ineligibility for multiple murder has some obvious benefit for the multiple murder cases in system. However, the comments of the court about rehabilitation may have more resounding impacts for sentencing going forward. As informed by s.12 of the Charter, the principle of rehabilitation seems to have been responsible here for overturning legislation because the effect of the sentence was to take away all hope of release which impacts the inmate's motivation for engaging in meaningful rehabilitation. Consequently, at some point the principle of rehabilitation must serve to blunt the impact of the most severe sentences when sought by the Crown. In other words, if multiple murderers are not beyond adequate consideration of their motivation for and possible attainment of rehabilitation, then surely offenders punished with close to maximum sentences or those nearing the end of their normal lifespans can use similarly framed arguments about rehabilitation to blunt the length of sentence sought by the Crown. Herein, I attempt to reproduce the paragraphs necessary for such an argument in the future. 

Introduction

[3] ... the question before the Court is whether s. 745.51 of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”), which was introduced in 2011 by the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act, S.C. 2011, c. 5, s. 5, is contrary to ss. 7 and 12 of the Charter. The impugned provision authorizes the imposition of consecutive parole ineligibility periods in cases involving multiple murders. In the context of first degree murders, the application of this provision allows a court to impose a sentence of imprisonment without eligibility for parole for a period of 50, 75, 100 or even 150 years. In practice, the exercise of the court’s discretion will inevitably result in imprisonment for life without a realistic possibility of parole for every offender concerned who has been convicted of multiple first degree murders. Such a criminal sentence is one whose severity is without precedent in this country’s history since the abolition of the death penalty and corporal punishment in the 1970s.

[4] For the reasons that follow, I conclude that s. 745.51 Cr. C. is contrary to s. 12 of the Charter and is not saved under s. 1.

[5] Section 12 of the Charter guarantees the right not to be subjected to cruel and unusual punishment or treatment. In essence, its purpose is to protect human dignity and ensure respect for the inherent worth of each individual. This Court recently affirmed, albeit in a different context, that human dignity transcends the interests of the individual and concerns society at large (Sherman Estate v. Donovan, 2021 SCC 25, at para. 33). In this sense, the significance of this appeal extends well beyond its particular facts.

[6] Section 12 of the Charter prohibits the state from imposing a punishment that is grossly disproportionate in relation to the situation of a particular offender and from having recourse to punishments that, by their very nature, are intrinsically incompatible with human dignity.

[7] ... All offenders subjected to stacked 25-year ineligibility periods under s. 745.51 Cr. C. are doomed to be incarcerated for the rest of their lives without a realistic possibility of being granted parole. The impugned provision, taken to its extreme, authorizes a court to order an offender to serve an ineligibility period that exceeds the life expectancy of any human being, a sentence so absurd that it would bring the administration of justice into disrepute.

[8] A sentence of imprisonment for life without a realistic possibility of parole is intrinsically incompatible with human dignity. Such a sentence is degrading insofar as it negates, in advance and irreversibly, the penological objective of rehabilitation. ... [Emphasis by PJM]

[9] To ensure respect for the inherent dignity of every individual, s. 12 of the Charter requires that Parliament leave a door open for rehabilitation, even in cases where this objective is of secondary importance. In practical terms, this means that every inmate must have a realistic possibility of applying for parole, at the very least earlier than the expiration of an ineligibility period of 50 years, which is the minimum ineligibility period resulting from the exercise of judicial discretion under the impugned provision in cases involving first degree murders.

Facts

[10] ... However, out of respect for the victims of this tragedy, it must be said that hatred, racism, ignorance and Islamophobia were behind the appalling acts committed by the respondent on that fateful day of January 29, 2017, when he sowed terror and death in the Great Mosque of Québec.

[11] Forty-six people, including four children, had gathered in that place of worship for evening prayer. The respondent burst in and, armed with a semi-automatic rifle and a pistol, opened fire on the worshippers. In less than two minutes, he caused the death of six innocent people, Khaled Belkacemi, Ibrahima and Mamadou Tanou Barry, Abdelkrim Hassane, Azzeddine Soufiane and Aboubaker Thabti, seriously injured five others and left the survivors of the killings, and the victims’ loved ones, with deep and permanent psychological scars.

[12] On March 26, 2018, the respondent pleaded guilty to the 12 charges laid against him, including 6 counts of first degree murder, an indictable offence provided for in ss. 231(2) and 235 Cr. C. As a consequence, he was automatically sentenced to imprisonment for life. The Crown then asked the court to apply s. 745.51 Cr. C. and sentence the respondent to 6 consecutive parole ineligibility periods of 25 years, for a total of 150 years. ...

[13] In particularly detailed reasons, the trial judge held that s. 745.51 Cr. C. infringed ss. 12 and 7 of the Charter and that it could not be saved under s. 1. As a remedy for the unconstitutionality of the provision, he applied the technique of reading in and ordered the respondent to serve an ineligibility period of 40 years before applying for parole.

IV. Analysis

A. History of Section 745.51 Cr. C.

[29] In 1961, Parliament established a distinction between capital murder and non‑capital murder. The former, which included murder that was planned and deliberate, was punishable by death by hanging in the case of an offender 18 years of age or older. The latter, which was similar to second degree murder, was punishable by imprisonment for life (Act to amend the Criminal Code (Capital Murder), S.C. 1960‑61, c. 44, ss. 1 and 2; Library of Parliament, at pp. 5‑6).

[31] In July 1976, Parliament abolished the death penalty for Criminal Code offences (Criminal Law Amendment Act (No. 2), 1976, S.C. 1974‑75‑76, c. 105).^[1] As a result of a political compromise, it replaced the death penalty with a mandatory minimum life sentence for the two categories of murder now defined in the Criminal Code: first degree murder and second degree murder. In the case of second degree murder, the parole ineligibility period varied from 10 to 25 years. For first degree murder, the parole ineligibility period was 25 years without regard to the number of victims. There was no provision at that time concerning the imposition of consecutive ineligibility periods in cases involving multiple murders.

C. Sentencing Objectives in Canadian Law

[50] But sentencing must in all circumstances be guided by the cardinal principle of proportionality. The sentence must be severe enough to denounce the offence but must not exceed “what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence” (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 42; see also R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37). Proportionality in sentencing is considered to be an essential factor in maintaining public confidence in the fairness and rationality of the criminal justice system. The application of this principle assures the public that the offender deserves the punishment received (Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 533, per Wilson J., concurring).

[51] It follows that “a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending” (Nur, at para. 45). In a similar vein, Vauclair J.A. aptly stated that [translation] “striving for exemplarity to the detriment of evidence of the merit of rehabilitation objectives is incompatible with the principle of individualization” (Lacelle Belec v. R., 2019 QCCA 711, at para. 30 (CanLII), citing R. v. Paré, 2011 QCCA 2047, at para. 48 (CanLII), per Doyon J.A.). Proportionality has a restraining function, and in this sense serves to guarantee that a sentence is individualized, just and appropriate.

[52] The principle of proportionality is so fundamental that it has a constitutional dimension under s. 12 of the Charter, which forbids the imposition of a sentence that is so grossly disproportionate as to be incompatible with human dignity (Nasogaluak, at para. 41; Ipeelee, at para. 36). ... [PJM Emphasis]

D. The Right Under Section 12 of the Charter Not to Be Subjected to Cruel and Unusual Punishment

(1) The Parole Ineligibility Period Constitutes Punishment

[56] Section 12 of the Charter grants individuals a right not to be subjected to cruel and unusual punishment. A precondition for applying this section is therefore that the impugned action constitute punishment. Such is the case here.

[58] The length of parole ineligibility is part of an offender’s punishment (Shropshire, at para. 23; see also Zinck, at para. 31). It is a consequence of conviction and has a significant impact on the offender’s interests in liberty and security of the person. What is more, the parole ineligibility period furthers the objectives of denunciation and deterrence that underlie a sentence (Shropshire, at paras. 21‑23;M. (C.A.), at para. 64; R. v. Simmonds, 2018 BCCA 205, 362 C.C.C. (3d) 215, at para. 10). It follows that the imposition of consecutive parole ineligibility periods authorized by s. 745.51 Cr. C. constitutes punishment, the constitutionality of which must be determined under s. 12 of the Charter.

(2)         The Two Prongs of the Right Not to Be Subjected to Cruel and Unusual Punishment

[59] For a proper understanding of the two prongs of the protection afforded by s. 12 of the Charter, it is necessary to refocus the analysis on the purpose of this provision. This Court recently stated that the purpose of s. 12 is “to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals” (Quebec (Attorney General) v. 9147‑0732 Québec inc., 2020 SCC 32, at para. 51; the Court was unanimous on this point). Although dignity is not recognized as an independent constitutional right, it is a fundamental value that serves as a guide for the interpretation of all Charter rights (Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 77). Generally speaking, the concept of dignity evokes the idea that every person has intrinsic worth and is therefore entitled to respect (Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, at para. 56; Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand, 1996 CanLII 172 (SCC), [1996] 3 S.C.R. 211, at para. 105). This respect is owed to every individual, irrespective of their actions (see C. Brunelle, “La dignité dans la Charte des droits et libertés de la personne: de l’ubiquité à l’ambiguïté d’une notion fondamentale”, [2006] R. du B. (numéro thématique) 143, at pp. 150‑51). [PJM Emphasis]

[61] The first form of cruel and unusual punishment involves punishment whose effect is grossly disproportionate to what would have been appropriate (Smith, at p. 1072). A punishment oversteps constitutional limits when it is grossly disproportionate, and not merely excessive (Smith, at p. 1072). A grossly disproportionate sentence is cruel and unusual in that it shows the state’s complete disregard for the specific circumstances of the sentenced individual and for the proportionality of the punishment inflicted on them. [PJM Emphasis]

[63] The case law on grossly disproportionate punishment has been developed in the context of mandatory sentences imposed without regard for the offender’s particular circumstances ... In Nur, this Court noted that, to determine whether a minimum sentence is grossly disproportionate, a court must first consider “what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code” (para. 46). The court must then ask whether the impugned provision requires it to impose a sentence that is grossly disproportionate to one that would be just and appropriate for the offender or for another offender in a reasonable hypothetical case; if the provision does so, it infringes s. 12 of the Charter (Nur, at para. 46). The Nur framework does not apply to discretionary sentences. Where there is no mandatory minimum sentence, the imposition of a sentence that is acceptable by its nature but that proves to be disproportionate in a particular case can be rectified by way of an appeal against sentence rather than a declaration of unconstitutionality (Malmo‑Levine, at paras. 167‑68).

[64] The second prong of the protection afforded by s. 12 concerns a narrow class of punishments that are cruel and unusual by nature; these punishments will “always be grossly disproportionate” because they are intrinsically incompatible with human dignity (Smith, at p. 1073). These punishments are in themselves contrary to human dignity because of their “degrading and dehumanizing” nature, as this Court put it in 9147‑0732 Québec inc. (para. 51; the Court was unanimous on this point). A degrading or dehumanizing punishment, by its very nature, outrages “our standards of decency” (Luxton, at p. 724).

[65] Since a society’s standards of decency are not frozen in time, what constitutes punishment that is cruel and unusual by nature will necessarily evolve, in accordance with the principle that our Constitution is a living tree capable of growth and expansion within its natural limits so as to meet the new social, political and historical realities of the modern world (Reference re Same‑Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698, at para. 22; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 155‑56; Edwards v. Attorney‑General for Canada, 1929 CanLII 438 (UK JCPC), [1930] A.C. 124 (P.C.), at p. 136). ... Punishments that we regard as incompatible with human dignity today were common and accepted in the past. Professor A. N. Doob rightly states that “[t]he reason we no longer whip or hang people is not that we ran out of leather or rope. Rather, it is because those punishments are no longer congruent with Canadian values” (Department of Justice Canada, A Values and Evidence Approach to Sentencing Purposes and Principles (2017), at p. 4).

[66] Among the punishments and treatments that have so far been held to be intrinsically incompatible with human dignity are “the infliction of corporal punishment, such as the lash, irrespective of the number of lashes imposed . . . the lobotomisation of certain dangerous offenders or the castration of sexual offenders” (Smith, at p. 1074). Torture also falls into this category, for it has as its end “the denial of a person’s humanity” (Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 51).

[67] A punishment is cruel and unusual by nature if the court is convinced that, having regard to its nature and effects, it could never be imposed in a manner consonant with human dignity in the Canadian criminal context. A punishment that is cruel and unusual by nature is “so inherently repugnant that it could never be an appropriate punishment, however egregious the offence” (Suresh, at para. 51). To determine whether a punishment is intrinsically incompatible with dignity, the court must determine whether the punishment is, by its very nature, degrading or dehumanizing. The effects that the punishment may have on all offenders on whom it is imposed can also inform the court and provide support for its analysis of the nature of the punishment. [Emphasis by PJM]

[68] ... A punishment that is cruel and unusual by nature will by definition “always be grossly disproportionate” (Smith, at p. 1073). Such a punishment must quite simply be excluded from the arsenal of sanctions available to the state, which means that the state cannot circumvent s. 12 by providing for specific exemptions for the imposition of the punishment or by making its imposition subject to judicial discretion. ...

[69] In sum, a punishment may infringe s. 12 for two distinct reasons, either because it is grossly disproportionate in a given case or because it is intrinsically incompatible with human dignity. ... If the punishment that might be imposed is cruel and unusual by nature, and hence intrinsically incompatible with human dignity, it will be unnecessary — and I would even say pointless — to consider whether it is grossly disproportionate in a given case, because a punishment that is cruel and unusual by nature will “always be grossly disproportionate” (Smith, at p. 1073; see also Kerr and Berger, at p. 238).

E. Does Section 745.51 Cr. C. Infringe Section 12 of the Charter?

[71] I will begin by observing that this appeal concerns only the constitutionality, under s. 12 of the Charter, of a provision that allows a court to impose consecutive parole ineligibility periods in a context involving multiple murders. Specifically, in the case of first degree murders, the court is authorized, through the combined effect of ss. 745.51 and 745(a) Cr. C., to add up ineligibility periods of 25 years for each murder. Whether it is unconstitutional for a court to impose any ineligibility period greater than 25 years is therefore not at issue in this case.

[73] For the reasons that follow, I conclude that, by allowing consecutive 25-year parole ineligibility periods to be imposed in cases involving first degree murders, s. 745.51 Cr. C. authorizes the imposition of sentences of imprisonment for life without a realistic possibility of parole before death for all offenders who must serve such periods consecutively. Such sentences are degrading in nature and thus incompatible with human dignity, because they deny offenders any possibility of reintegration into society, which presupposes, definitively and irreversibly, that they lack the capacity to reform and re-enter society. [PJM Emphasis]

(1) Scope of Section 745.51 Cr. C.

[74] ... Section 745.51 Cr. C. provides that the judge who presided at the trial may, by order, decide that the periods without eligibility for parole for each murder conviction are to be served consecutively, in a departure from the general principle that parole ineligibility periods are to be served concurrently (ss. 718.2(c) and 718.3(4) Cr. C.).

[75] I agree with the trial judge and the Court of Appeal in this case that s. 745.51 Cr. C. does not authorize a court to order that an offender convicted of first degree murder serve only a portion of a 25-year ineligibility period consecutively to another period imposed for another first degree murder (Sup. Ct. reasons, at para. 824; C.A. reasons, at para. 64). The provision in question allows only the imposition of consecutive 25-year periods. Parliament’s intention, which I will discuss below, was clear on this point. I would add that s. 745.51 Cr. C. sets no ceiling for the total length of the ineligibility period a court may impose. This provision merely states the criteria that are to guide the court in exercising its discretion, to which I will return later in these reasons.

[76] In the case of multiple first degree murders, the impugned provision authorizes the imposition of sentences of imprisonment that effectively deprive all offenders who receive such sentences of a realistic possibility of being granted parole. ... For reference, it should be noted that the average life expectancy of inmates who die of natural causes is about 60 years (Office of the Correctional Investigator of Canada and Canadian Human Rights Commission, Aging and Dying in Prison: An Investigation into the Experiences of Older Individuals in Federal Custody (2019), at p. 57), which is far lower than the average life expectancy of the general public (for context, the average life expectancy of Canadians, both sexes combined, was 81.7 years in 2020; see Statistics Canada, “Deaths, 2020”, in The Daily, January 24, 2022 (online)).

[77] Therefore, at the end of the 50-year period of incarceration, some offenders will have died, while others will perhaps be released after the significant years of their life are over, making them what some authors have called “virtual lifers” ... For the purposes of analyzing the constitutionality of the impugned provision, this situation can be likened to a sentence of imprisonment for life without a realistic possibility of parole, in that the individual in question will never be able to re‑enter society and contribute to it as an active citizen, especially given the fact that long prison sentences impair, more than they favour, the reintegration of offenders into society (R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at paras. 54‑57; Ruby, at §1.63).

[78] As for the other possible cases, which involve the imposition of a sentence of imprisonment for life without eligibility for parole for 75, 100, 125 or even 800 years, the conclusion is self-evident: the individual is sentenced to die in prison, deprived of any possibility of one day recovering a portion of their liberty.

(2) Imprisonment for Life Without a Realistic Possibility of Parole Constitutes Punishment That Is Cruel and Unusual by Nature

[81]   An examination of the nature of a sentence of imprisonment for life without a realistic possibility of parole leads to the conclusion that it is incompatible with human dignity, a value that underlies the protection conferred by s. 12 of the Charter. This punishment is degrading in nature in that it presupposes at the time of its imposition, in a definitive and irreversible way, that the offender is beyond redemption and lacks the moral autonomy needed for rehabilitation. This alone justifies the conclusion that this punishment is cruel and unusual by nature.

(a) Examination of the Nature of a Sentence of Imprisonment for Life Without a Realistic Possibility of Parole

[84] It is difficult if not impossible to predict an offender’s capacity for reform over a period of 50 years or more, let alone to predict whether the offender will actually be able to reform during their many years of incarceration. By depriving offenders in advance of any possibility of reintegration into society, the impugned provision shakes the very foundations of Canadian criminal law. It thereby negates the objective of rehabilitation from the time of sentencing, which has the effect of denying offenders any autonomy and imposing on them a degrading punishment that is incompatible with human dignity. [PJM Emphasis]

[85] To ensure respect for human dignity, Parliament must leave a door open for rehabilitation, even in cases where this objective is of minimal importance. ...

[88] Contrary to what the appellants argue, the intent here is not to have the objective of rehabilitation prevail over all the others, but rather to preserve a certain place for it in a penal system based on respect for the inherent dignity of every individual. Where the offence of first degree murder is concerned, rehabilitation is already subordinate to the objectives of denunciation and deterrence, as can be seen from the severity of the punishment.

[93] ... However, as Desrosiers and Bernard put it, [TRANSLATION] “in a legal system based on respect for rights and freedoms, the ‘eye for an eye’ principle does not apply” (p. 292). The courts must establish a limit on the state’s power to sanction offenders, in keeping with the Charter.

[94] Furthermore, the objectives of denunciation and deterrence are not better served by the imposition of excessive sentences. Beyond a certain threshold, these objectives lose all of their functional value, especially when the sentence far exceeds human life expectancy. The imposition of excessive sentences that fulfil no function, like the 150-year parole ineligibility period initially sought by the Crown in this case, does nothing more than bring the administration of justice into disrepute and undermine public confidence in the rationality and fairness of the criminal justice system. ...

[95] As the Court of Appeal aptly stated, the imposition of a parole ineligibility period that exceeds human life expectancy [TRANSLATION] “is absurd. . . . A court must not make an order that can never be carried out” (para. 93).

(b) Effects of a Sentence of Imprisonment for Life Without a Realistic Possibility of Parole

[97] ... For offenders who are sentenced to imprisonment for life without a realistic possibility of parole, the feeling of leading a monotonous, futile existence in isolation from their loved ones and from the outside world is very hard to tolerate. Some of them prefer to put an end to their lives rather than die slowly and endure suffering that seems endless to them (R. Johnson and S. McGunigall-Smith, “Life Without Parole, America’s Other Death Penalty” (2008), 88 Prison J. 328, at pp. 332-36; see also R. Kleinstuber and J. Coldsmith, “Is life without parole an effective way to reduce violent crime? An empirical assessment” (2020), 19 Criminol. & Pub. Pol’y 617, at p. 620). Effects like these support the conclusion that a sentence of imprisonment for life without a realistic possibility of parole is degrading in nature and thus intrinsically incompatible with human dignity. It is an inherently cruel and unusual punishment that infringes s. 12 of the Charter.

(d) Does the Judicial Discretion to Impose Consecutive Parole Ineligibility Periods Affect the Constitutionality of the Impugned Provision?

[110] It is true that the imposition of consecutive parole ineligibility periods is not mandatory. Section 745.51 Cr. C. provides that a court may order that the parole ineligibility periods applicable for each murder conviction are to be served consecutively. In exercising its discretion, the court must take into consideration the In support of its position that s. 745.51 Cr. C. is constitutional, the Crowncharacter of the offender, the nature of the offence and the circumstances surrounding its commission. In this regard, I note that the court’s obligation to stack ineligibility periods in blocks of 25 years, if it chooses to exercise its discretion, is difficult to reconcile with the principles of proportionality and individualization in sentencing.

[111] In any event, I am of the view, as explained above, that the existence of a discretion cannot save a provision that authorizes the imposition of a punishment that is cruel and unusual by nature. No crime, no matter how appalling it might be, can justify imposing a punishment that is intrinsically incompatible with human dignity, like a sentence of imprisonment for life without a realistic possibility of parole. ...

(e) Can the Royal Prerogative of Mercy Save the Impugned Provision?

[113] The royal prerogative of mercy gives Her Majesty the Queen an absolute discretion to grant a remission of sentence to any individual sentenced by a court, regardless of the nature or seriousness of the crime committed (ss. 748 and 749 Cr. C.). This prerogative arises from the former absolute power of British monarchs to pardon their subjects. Historically, the royal prerogative has had two strands and two objectives: “to show compassion by relieving an individual of the full weight of his or her sentence” and “to correct miscarriages of justice such as wrongful convictions” (Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621, at para. 28). Before the death penalty was abolished, the royal prerogative was often used to commute that sentence (C. Strange, “Mercy for Murderers? A Historical Perspective on the Royal Prerogative of Mercy” (2001), 64 Sask. L. Rev. 559, at p. 561).

[114] The power to exercise this prerogative has been conferred on the person holding office as Governor General of Canada by Letters Patent (Letters Patent Constituting the Office of Governor General of Canada (1947), Canada Gazette, Part I, vol. 81, p. 3014, s. XII (reproduced in R.S.C. 1985, App. II, No. 31)). The Governor General acts only on the advice of the Minister of Public Safety and Emergency Preparedness Canada, or that of at least one other minister (Parole Board of Canada, Royal Prerogative of Mercy Ministerial Guidelines, October 31, 2014 (online), at p. 2). The Governor General may grant two types of pardons: a free pardon and a conditional pardon (s. 748(2) Cr. C.).

[115] The royal prerogative of mercy is exercised “only [in] rare cases in which consideration[s] of justice, humanity and compassion override the normal administration of justice” (Ministerial Guidelines, at pp. 4‑5). For a pardon to be granted, there must be exceptional circumstances involving substantial injustice or undue hardship (pp. 3‑5). The Ministerial Guidelines state that pardons are available only in “truly deserving cases” (p. 3). Although it is difficult to calculate how many applications for the exercise of the royal prerogative of mercy have been granted, it would seem that the number is very limited (as an illustration, from 2014‑2015 to 2018‑2019, 5 applications were granted, 3 were denied and 175 were discontinued (Parole Board of Canada, Performance Monitoring Report 2018‑2019, at p. 170)).

[116] This Court has established that the royal prerogative of mercy is part of the array of mechanisms by which the principle of individualization in sentencing is given effect (Luxton, at p. 725). However, it has never found that this discretion on its own constitutes a true sentence review mechanism. ...

[118] In short, the royal prerogative of mercy, because of its exceptional nature, is at best a release mechanism based on compassion and on the existence of humanitarian grounds under Canadian law. Individuals suffering the normal consequences of a properly imposed sentence are in fact unlikely to obtain such a pardon. ...

F. Is the Infringement of Section 12 of the Charter Justified Under Section 1 of the Charter?

[121] In this case, since the appellants have made no arguments concerning the justification for the impugned provision, they have not discharged the onus resting on them. In any event, it is hard to imagine how a punishment that is cruel and unusual by nature could be justified in a free and democratic society. ...

G. Appropriate Remedy

[122] Having found that the impugned provision is contrary to the Charter, I would declare s. 745.51 Cr. C. to be of no force or effect immediately under s. 52(1) of the Constitution Act, 1982. The appellants have proposed no alternative remedy in this Court.

[123] Under s. 52 of the Constitution Act, 1982, any law that is inconsistent with the provisions of the Constitution can be declared to be of no force or effect to the extent of the inconsistency. In Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679, the leading case on constitutional remedies, Lamer C.J. stated that, depending on the circumstances, a court may strike down an inconsistent provision immediately, strike it down and temporarily suspend the declaration of invalidity, resort to the technique of reading in or that of reading down, or apply the doctrine of severance (see pp. 695‑700). In exercising its discretion to determine an appropriate remedy, a court will consider not only the principle of constitutional supremacy in s. 52(1) but also the principles of the rule of law and the separation of powers (R. v. Albashir, 2021 SCC 48, at paras. 30 and 34; R. v. Sullivan, 2022 SCC 19, at para. 61).

[126] The technique of reading in allows a court to extend the reach of a statute so that it includes what was wrongly excluded from it (Schachter, at p. 698; Ontario (Attorney General) v. G, 2020 SCC 38, at para. 113). For example, where a statute unconstitutionally excludes a group of individuals, a court may find that the statute includes the group rather than striking it down (Schachter, at pp. 699‑700; see also Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143). Under the second technique, reading down, a court limits the reach of a statute by declaring it to be of no force or effect to a precisely defined extent (G, at para. 113). Severance, in turn, allows a court to declare something “improperly included in the statute which can be severed and struck down” to be of no force or effect (Schachter, at p. 698; G, at para. 113).

R v Peterson, 2022 ABQB 365

[May 24, 2022] Charter s.7 - Late and Destroyed Disclosure - Spoliation [Mr. Justice W. N. Renke]

AUTHOR’S NOTE: Issues of late and destroyed disclosure arise infrequently in criminal cases with the clarity of this matter. Here, a sexual assault DNA examination kit was destroyed because a complainant did not want it tested for the DNA of her then boyfriend (as opposed to the accused). This information was then held onto until prior counsel was discharged following a conviction. The case provides an excellent and detailed overview of the law of late and destroyed disclosure. The ultimate outcome is a mistrial because the destruction of the sexual assault kit would obviously have been an issue which the defence would have explored with the complainant in cross-examination. The case also talks about the principle of spoliation and its applicability to the criminal law.

Overview

[1] Mr. Peterson applied for a stay of proceedings following conviction based on violations of disclosure rights protected under s. 7 of the Charter. For the reasons that follow, I find that Mr. Peterson’s s. 7 rights were violated. The appropriate remedy is not a stay but a declaration of a mistrial and a disclosure order.

I. Background
A. The Trial

[3] On June 15, 2021, Mr. Peterson was tried on one count of sexual assault alleged to have occurred on March 29, 2014. On June 16, 2021, I convicted Mr. Peterson. I ordered a pre- sentence report and adjourned to set a date for sentencing.

B. Fresh Disclosure

[4] Mr. Peterson retained new (current) counsel following conviction. Counsel made inquiries with the Crown respecting disclosure and requested “materials related to the sexual assault kit obtained by the RCMP in relation to this investigation.” A sexual assault kit had been completed with the Complainant on March 29, 2014 after the alleged offence.

[5] On September 23, 2021, the Crown disclosed an updated General Report from Cst. Milleker (Froese) of the RCMP, the lead investigator. This report contained a previously undisclosed third page, stating the following:

2014/05/01

Cst. MILLEKER had previously called the Lab about sending in the sexual assault kit. They said they required Eric JOHNSON’s DNA [Mr. Johnson was the Complainant’s then-boyfriend] to exempt his DNA from the kit ....

2014/05/02

2100 Cst. MILLEKER spoke with [the Complainant] and she does not want to involve JOHNSON’s DNA and she understands the kit will not be analyzed without it. She understands the investigation is now complete and attempts to locate PETERSON have been unsuccessful. She was notified a warrant is out for the arrest of PETERSON and appreciates all the help with the investigation.

An email was sent to Jim HENDRY [the exhibits custodian] to destroy the kit.

Mr. Peterson applied for a stay of proceedings based on the evidence destruction and the late disclosure.

III. Principles

A. Duty to Disclose

[12] Under s. 7 of the Charter, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” An aspect of “fundamental justice” is an accused’s right to make full answer and defence. “Full answer and defence encompasses the right to meet the case presented by the prosecution, advance a case for the defence, and make informed decisions on procedural and other matters which affect the conduct of the defence:” R v Girimonte, 1997 CanLII 1866 (ON CA), 1997 CarswellOnt 4855, 121 CCC (3d) 33 (CA), Doherty JA at para 15 (CarswellOnt).

[20]      .... The purpose underlying the Crown’s obligation to disclose is explained by Rosenberg J.A. in R. v. Horan, 2008 ONCA 589, 237 C.C.C. (3d) 514, at para. 26:

Put simply, disclosure is a means to an end. Full prosecution disclosure is to ensure that the accused receives a fair trial, that the accused has an adequate opportunity to respond to the prosecution case and that in the result the verdict is a reliable one.

“Information is relevant for the purposes of the Crown’s disclosure obligation if there is a reasonable possibility that withholding the information will impair the accused’s right to make full answer and defence:” Girimonte at para 15; R v Egger, 1993 CanLII 98 (SCC), [1993] 2 SCR 451, Sopinka J at 467).

[14] A corollary of the Crown’s duty to disclose is the duty of the investigating State authority - typically the police - to disclose all material pertaining to its investigation of the accused: R v McNeil, 2009 SCC 3, Charron J at para 14.

[15] A further corollary is the duty of the police and Crown to preserve evidence for disclosure purposes: R v FCB, 2000 NSCA 35, Roscoe JA at para 10; R v Bero2000 CanLII 16956, 151 CCC (3d) 545 (ON CA), Doherty JA at para 30 (CanLII); R v KDS, 2021 SKCA 84, Jackson JA at para 84.

[16] In this case, evidence was destroyed before trial and disclosure occurred late.

[20]  I agree with Judge Semenuk’s observation in R v BE, 2016 ABPC 91 at para 117 that the principles relating to destroyed relevant evidence and late-disclosed relevant evidence are distinct.

C. Lost or Destroyed Evidence

1. Abuse of Process and Unacceptable Negligence

[22]           A section 7 lost or destroyed evidence claim may be based on the at-fault conduct of the Crown or police. Justice Sopinka’s decision in R v La, 1997 CanLII 309 (SCC), [1997] 2 SCR 680 at paras 22 and 30 suggests that the s. 7 violation is founded on abuse of process. An abuse of process may result from “unacceptable negligence” or from intentional or other abusive conduct:

22        .... An abuse of process, however, is not limited to conduct of officers of the Crown which proceeds from an improper motive .... Accordingly, other serious departures from the Crown’s duty to preserve material that is subject to production may also amount to an abuse of process notwithstanding that a deliberate destruction for the purpose of evading disclosure is not established.  In some cases an unacceptable degree of negligent conduct may suffice.

(a) Burden on the Accused

(a) the police or Crown were in possession of the evidence,

(b) the evidence was “relevant” in the Stinchcombe sense,

(c) the evidence has been lost or destroyed.

(b) Burden on the Crown

(i) Unacceptable Negligence

[27]           In making the determination,

•         the trial judge must have regard to all the circumstances.

•         the main consideration is whether the Crown or police took reasonable steps in the circumstances to preserve the evidence for disclosure.

•         the degree of care required is proportional to the materiality (significance) and the nature of the evidence.

See La at paras 20, 21; Janeiro at para 108; R v Hersi, 2019 ONCA 94, Doherty JA at para 26, app. for ext. of time to file app. for leave to appeal denied (and app. for leave to appeal would have been denied regardless), 2020 CanLII 27697 (SCC); R v Abreha, 2019 ONCA 392 at para 11; R v Cloutier, 2011 ONCA 484 at para 71; Beroat para 30; KDS at paras 60, 84-85; R v Cathcart, 2019 SKCA 90, Kalmakoff JA at paras 27 to 29; FCB at para 10; Adem at para 85; MacNeil at para 26(6); R v Mathieu, 2016 ABQB 604, Tilleman J at paras 52-53.

(ii) (Other) Abuse of Process

22        What is the conduct arising from failure to disclose that will amount to an abuse of process?  By definition it must include conduct on the part of governmental authorities that violates those fundamental principles that underlie the community’s sense of decency and fair play.  The deliberate destruction of material by the police or other officers of the Crown for the purpose of defeating the Crown’s obligation to disclose the material will, typically, fall into this category ....

In R v Nixon, 2011 SCC 34 at para 36, identified two categories of abuse of process which would be caught by s. 7 of the Charter: (1) prosecutorial conduct affecting the fairness of the trial; and (2) prosecutorial conduct that “contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.” See also R v Jennings, 2018 ABQB 583, Shelley J at paras 36, 38.

2. No Abuse of Process or Unacceptable Negligence

(a) No Finding of Abuse of Process or Unacceptable Negligence

(b) Actual Prejudice

[31] The determination that s. 7 has been violated by unacceptable negligence or other abuse of process does not, by itself, decide the remedy under s. 24(1): KDS at para 100; Cloutier at para 71. Remedies shall be discussed below.

D. Late Disclosure

[32] A claim for Charter relief based on late disclosure has the following elements:

1. Burden on the Accused

[33] The accused must establish on the balance of probabilities that

(a) the police or Crown were in possession of the evidence,

(b) the evidence was “relevant” in the Stinchcombe sense,

(c) disclosure was “late,” and

(d) the accused suffered “actual prejudice” to the right to make full answer and defence, in the sense of a “reasonable possibility” that the non-disclosure affected the outcome at trial or the overall fairness of the trial process.

Proof of these matters will establish a s. 7 violation. Proof of late disclosure alone will not. In R v Dixon, 1998 CanLII 805 (SCC), [1998] 1 SCR 244, Justice Cory wrote at para 24 that “[i]t does not automatically follow that solely because the right to disclosure was violated, the Charter right to make full answer and defence was impaired.” Hence the requirement to show actual prejudice: R v Barra, 2021 ONCA 568, at para 138; R v Wollach, 2022 ABCA 95 at para 26-27; R v Truong, 2020 ABQB 716, Devlin J at paras 69-71; Sawchuk at para 31; Adem at para 83; Cathcart at para 27.

[34] ...  At para 34, Justice Cory [in Dixon] wrote that:

[34]      .... Imposing a test based on a reasonable possibility strikes a fair balance between an accused’s interest in a fair trial and the public’s interest in the efficient administration of justice.  It recognizes the difficulty of reconstructing accurately the trial process, and avoids the undesirable effect of undermining the Crown’s disclosure obligations.  This would be the result if the Crown were placed in a better position by withholding rather than disclosing information of relatively low probative value.  However, the reasonable possibility to be shown under this test must not be entirely speculative.  It must be based on reasonably possible uses of the non‑disclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the non‑disclosure.  If this possibility is shown to exist, then the right to make full answer and defence was impaired.

2. Aspects of Actual Prejudice

[35] Actual prejudice must be considered in a two-step analysis. The first step considers the effect of late disclosure on the reliability of the conviction. The second step considers the overall effect of the late disclosure on trial fairness. Justice Cory wrote as follows at para 36 of Dixon: ...

If at the first stage an appellate court is persuaded that there is a reasonable possibility that, on its face, the undisclosed information affects the reliability of the conviction, a new trial should be ordered. Even if the undisclosed information does not itself affect the reliability of the result at trial, the effect of the non‐disclosure on the overall fairness of the trial process must be considered at the second stage of analysis. This will be done by assessing, on the basis of a reasonable possibility, the lines of inquiry with witnesses or the opportunities to garner additional evidence that could have been available to the defence if the relevant information had been disclosed. In short, the reasonable possibility that the undisclosed information impaired the right to make full answer and defence relates not only to the content of the information itself, but also to the realistic opportunities to explore possible uses of the undisclosed information for purposes of investigation and gathering evidence.

[36] At para 37 of Dixon, Justice Cory noted that “[i]n considering the overall fairness of the trial process, defence counsel’s diligence in pursuing disclosure from the Crown must be taken into account. A lack of due diligence is a significant factor in determining whether the Crown’s non‐disclosure affected the fairness of the trial process ....

3. Remedy

E. Remedies

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Factors bearing on the determination of the “appropriate and just” remedy for lost or destroyed evidence or late disclosure include:

•         the nature of the Charter violation or the seriousness of the Charter-offending conduct

•         the degree of impairment or prejudice to the accused’s fair trial rights

•         the timing of late disclosure or of notice of the lost or destroyed evidence

•         the availability of measures that would mitigate or ameliorate the prejudice.

[142]   A fair trial is a trial that appears fair, not only from the perspective of the accused, but also from that of the community. It is not the most advantageous trial possible from the accused’s point of view. Nor is it a perfect trial. A fair trial is a trial which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the persons charged: Bjelland, at para. 22.

•         recalling witnesses for cross-examination

•         the exclusion of evidence

•         an instruction to the jury or a self-instruction that the missing evidence did not advance the Crown’s case or that the absence of evidence may be relevant to whether the Crown has established its case beyond a reasonable doubt

•         re-opening proceedings

•         declaration of a mistrial

•         stay of proceedings

•         costs.

•         a disclosure order

•         adjournment (which may be coupled with a disclosure order)

•         recalling witnesses for cross-examination

•         the exclusion of evidence

•         re-opening proceedings

•         declaration of a mistrial

•         stay of proceedings

•         costs.

See R v Luo, 2021 ABQB 188, Gates J at para 24; Janeiro at para 126.

1. Stay

[31] Nonetheless, this Court has recognized that there are rare occasions —the “clearest of cases” — when a stay of proceedings for an abuse of process will be warranted .... These cases generally fall into two categories: (1) where stateconduct compromises the fairness of an accused’s trial (the “main” category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category) ....

[32] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (ibid., at para. 57).

See Dixon at para 35; Blanchard at para 25; Cloutier at para 71; Janeiro at para 125; R v Garnot, 2018 BCCA 107 at para 31.

[45] Irreparable prejudice is not made out only on the basis that “putting forward the position” of the defence has been made more difficult: R v Dymkowski, 2021 ONSC 8428, Goodman J at para 130.

2. Mistrial

[49] Like a stay, a declaration of a mistrial is a remedy of “last resort” since it terminates a prosecution without a decision on the merits: Barra at para 147; Vallee at para 51. A mistrial should not be granted unless other less extreme measures will not prevent a miscarriage of justice, unless lesser remedies will not adequately preserve the accused’s right to a fair trial or will not remedy the prejudice suffered by the accused: Vallee at paras 44, 45, 49, 57. A mistrial must be necessary to prevent a miscarriage of justice where nothing short of a new trial can repair the late disclosure: Vallee at para 44. Like a stay, mistrials should only be granted in the “clearest of cases:” Vallee at paras 45-47; Sauverwald at para 22(QB). Unlike a stay, though, a mistrial may be followed by a re-trial. A mistrial does not have the same finality as a stay.

[50] Further, in contrast to the conditions requisite for a stay, an accused claiming a mistrial on the basis of late disclosure need not establish actual prejudice but a “real danger” or “reasonable possibility” of prejudice to full answer and defence respecting verdict or process, including decisions that might have been made or steps that might have been taken.

3. Costs

[97]      Costs awards against the Crown in criminal proceedings are rarely available. A trial court may … award costs as a remedy under s 24(1) of the Charter if the court finds a “marked and unacceptable departure from the reasonable standards expected of the prosecution”: R v 974649 Ontario Inc, 2001 SCC 81 at para 87; R v Munkonda, 2015 ONCA 309 at para 140 ....

IV. Expert Evidence

[53] The Defence called Valerie Blackmore as an expert witness. The Crown properly conceded her qualifications. Ms. Blackmore has a very impressive background, having been employed in various capacities in the relevant field, including reporting scientist, at

• Ontario’s Centre of Forensic Science, conducting scientific investigations for the OPP, municipal police forces, and other police forces,

[54] I found that Ms. Blackmore was qualified as a forensic biologist in the areas of forensic bodily fluid identification, forensic DNA analysis interpretation and statistical analysis, the transfer and persistence of biological evidence, and forensic quality management systems.

[60] In this case, vaginal and anal swabs had been obtained. If the amount of DNA were sufficient, profile analysis could have proceeded even though the material was collected in 2014. When asked how long DNA lasts, Ms. Blackmore said that it depends on how much was there to begin with. Over time, some is lost. But analysis can be done years and even decades later, as occurs in cold case programs. She has worked on cases with samples over 40 years old. Profiles could be generated.

[61] The manner of storage would also affect the viability of the later analysis of samples. Improper storage could permit bacterial degradation of DNA.

[62] ... DNA deposited on clothing could potentially last for years. She did point out that if clothing were washed after contact, there is a high likelihood that DNA would be eliminated.

[65] Ms. Blackmore testified that if testing were done and no DNA other than female DNA were recovered, that would not necessarily mean that touching by a male did not occur. The testing may not have sampled the right area. While the technology is increasingly sensitive (10 skin cells may be detected and used to produce a profile), the deposit at an area tested may not have been sufficient. Similarly, if testing were done and DNA from a non-accused third party were found, that would not necessarily mean that touching by the accused did not occur. Again, the accused may not have left a deposit (or sufficient deposit) at the area tested.

V. Assessment

A. Destroyed Evidence

1. Unacceptable Negligence

[39]      This is not a situation in which the police considered the potential relevance of the vehicle and made a considered decision that it could not be relevant.  Nor is it a case where the destruction was accidental in that it was the product of human error, or some cause beyond the control of the authorities.  Nor is it a case where the police perceived the potential relevance of the vehicle but failed to take adequate steps to preserve it.  Rather, as set out above, the failure to preserve the vehicle was caused by the failure to look beyond the needs of the prosecution to the wider question of the potential relevance of the vehicle to the defence.  Had anyone directed their mind to the disclosure obligations set out in Stinchcombe, supra, I think the vehicle would have been preserved.  The failure to preserve the vehicle reveals an ignorance of, or at least an indifference to, the duty on the Crown and the police to preserve the fruits of their investigation.  This indifference or ignorance is difficult to comprehend so many years after the pronouncement of the Supreme Court of Canada in R. v. Stinchcombe, supra, and in my view, is a sufficiently serious departure from the Crown’s duty to preserve evidence that it constitutes an abuse of process. [emphasis added]

The evidence was destroyed when Cst. Milleker knew there was a warrant out for Mr. Peterson.

[72]           My finding that the kit and clothes were destroyed through unacceptable negligence means that Mr. Peterson has established that the police conduct violated his s. 7 rights.

3. Remedy - Stay

(a) The Acts of Destruction

[79] The violation, though, does not dictate the remedy: Bero at para 42.

•         The destruction was a deliberate act, in that Cst. Milleker sent an e-mail requesting destruction and the evidence custodian intentionally destroyed the evidence. However, while the destruction was intentional, there was no evidence that the destruction was for the purpose of destroying evidence that may have been helpful to the defence. From Cst. Milleker’s notes, I infer that she concluded that without Mr. Johnson’s DNA profile, the analysis of the kit could not proceed and the kit would cease to have any evidential value. Hence it could be destroyed. Cst. Milleker erred, but by failing to consider the scope of the duty to preserve relevant evidence rather than by destroying evidence she knew was relevant or by reckless (subjective) indifference to the relevance of the evidence.

•         Cst. Milleker made notes of what she did, as she would had she not realized that what she had done was wrong. There was no effort to hide what was done. There was late disclosure of p. 3 of her notes and of the Exhibit Reports. I attribute that, as did the Crown, to negligence rather than malevolence.

•         There was no evidence of any pattern of evidence destruction by Cst. Milleker or her Detachment.

[81]           In my opinion, we are dealing in this case with the all-too-human imperfection that may impair the performance of any duty, as Justice Sopinka reminded us in Laat para 20: “despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost.” I conclude that continuing proceedings against Mr. Peterson (as described below) would not offend society’s sense of justice and would not judicially condone unacceptable negligence in performance of disclosure duties. See also Hersi at para 38: “there is not a trace of police misconduct aimed at subverting the course of justice or thwarting the prosecution’s disclosure obligations.”

(b) The Kit and the Clothes – Fair Trial

[86] Nothing was made of the Complainant’s pajama pants design in the trial. On the evidence and lack of evidence, I do not consider that there was a significant probability that the pajama pants design impeded touch, but I cannot exclude the reasonable possibility – in the absence of the physical evidence – that the nature of the pajama pants would be relevant to the assessment of the Complainant’s narrative..

[88] I accept that there is a reasonable possibility that Mr. Peterson’s fair trial rights have been prejudiced as regards the destroyed kit and clothes. However, I do not find that Mr. Peterson has established that the destruction of the kit and clothes has in fact prejudiced his fair trial rights.

(ii) No DNA Analysis

[90] The kit and the clothes were not submitted for DNA analysis and cannot be submitted for DNA analysis. This evidence is gone.

[91] We do not know whether or not any of the seized objects would have disclosed the presence of Mr. Peterson’s DNA. Analysis may have shown that

•   Mr. Peterson’s DNA was found on one or more of the seized objects
•   Mr. Peterson’s DNA was not found on any of the seized objects
•   Mr. Johnson’s DNA (assuming that his profile could have been identified) was found on one or more of the seized objects, whether with or without the co-presence of Mr. Peterson’s DNA
•   some third party’s DNA was found on one or more of the seized objects, whether with or without the co-presence of Mr. Peterson’s DNA or Mr. Johnson’s DNA.

(iii) Inferences from Absence and Prejudice to Fair Trial

[92] The Crown correctly pointed to an asymmetry in the inferences available from a positive match to Mr. Peterson’s DNA profile and the absence of a match.

[96] It is true that it was reasonably possible that DNA profiles might have been developed if the kit and the clothes were analyzed. But we do not and cannot know whether this evidence would have helped or hindered the defence. Hence, as regards trial fairness, I do not find, on a balance of probabilities, that the absence of that evidence has prejudiced the Defence by eliminating evidence important to the Defence and I do not find that prejudice arising from the missing evidence “will be carried forward throughout the conduct of the trial,” that the missing evidence will generate “ongoing unfairness to the accused:” Babos at para 34.

[104] I considered the result in Tremble. In this sexual assault case, the complainant’s clothing worn at the time of the alleged offence was never seized by the police. The complainant offered to provide the clothing to the police. After about six months, the complainant threw the clothing away. As in this case, the opportunity for DNA analysis was lost as was the opportunity for examination of the clothing in connection with the narrative of the complainant and the cross- examination of the complainant. The trial judge stayed proceedings and Justice Fragomeni dismissed the appeal. The trial judge did not appear to consider whether the absence of evidence permitted the finding, on the balance of probabilities, of irreparable prejudice. The decision to impose a stay, in my opinion, cannot be reconciled with Bero or other governing authorities. I consider Tremble to be an outlier and not persuasive on the remedy issue.

(c) Alternative Remedies

[106] Further, in my opinion, there are measures that may be taken to alleviate the prejudice arising from the destruction of the kit and the clothes. I conclude that this is not one of those rare cases that requires a stay as the appropriate remedy.

B. Late Disclosure

[111] The late disclosure indicated that Cst. Milleker had the kit and clothes destroyed because the Complainant did not want the RCMP to gather a blood sample from Mr. Johnson so his DNA could be identified and excluded from consideration in the analysis of the kit and the clothes.

2. Destruction of Evidence

(a) Spoliation

[116]      In Sawchuk at para 68, Justice Horner referred to “[t]he ‘trite’ rules of ‘spoliation’ allow the Court to presume that destroyed evidence would have been unfavourable to the Crown’s case: [St Louis v The Queen] (1896), 1896 CanLII 65 (SCC), 25 SCR 649.”

[117]      Spoliation is an evidential doctrine typically applied in civil litigation. In St. Louis at 652-653, Justice Taschereau referred to “the rule omnia prœsumuntur contra spoliatorem. The destruction of evidence carries a presumption that the evidence destroyed would have been unfavourable to the party who destroyed it.” This is a rebuttable presumption. Justice Conrad summarized the Canadian law of spoliation at para 29 of McDougall v Black & Decker Canada Inc, 2008 ABCA 353:

1. Spoliation currently refers to the intentional destruction of relevant evidence when litigation is existing or pending.

2. The principal remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would not assist the spoliator. The presumption can be rebutted by evidence showing the spoliator did not intend, by destroying the evidence, to affect the litigation, or by other evidence to prove or repel the case.

3. Outside this general framework other remedies may be available – even where evidence has been unintentionally destroyed. Remedial authority for these remedies is found in the court’s rules of procedure and its inherent ability to prevent abuse of process, and remedies may include such relief as the exclusion of expert reports and the denial of costs ....

5. Generally, the issues of whether spoliation has occurred, and what remedy should be given if it has, are matters best left for trial where the trial judge can consider all of the facts and fashion the most appropriate response.

6. Pre-trial relief may be available in the exceptional case where a party is particularly disadvantaged by the destruction of evidence. But generally this is accomplished through the applicable rules of court, or the court’s general discretion with respect to costs and the control of abuse of process.

[118]      A few criminal cases rely on the spoliation doctrine. As regards an accused’s conduct, the doctrine may not be necessary as the destruction of evidence might be admissible as after-the-fact conduct supporting the Crown’s case, depending on the facts at issue. As regards Crown or police conduct, the intentional destruction of evidence by Crown or the State investigating agency would likely amount to an abuse of process and might support the imposition of a stay. I will assume, though, that the doctrine would apply in criminal cases.

[119]      For the doctrine to apply, evidence must be destroyed “intentionally.” As indicated above, that would fairly describe Cst. Milleker’s directions respecting the evidence. However, as also indicated above, I did not find that Cst. Milleker’s destruction of the error was for the purpose of “affecting the litigation.” She made a mistake about the potential uses and disclosure of the evidence. That rebuts the presumption.

(b) The Role of Missing Evidence

[120]      The facts that the evidence had existed, was destroyed, and could reasonably have supported inferences favourable to Mr. Peterson’s case could not be ignored by a trier of fact.

[121]      At the very least, the missing evidence could be confirmed as not providing any support to the Crown’s case. In Hersi, Justice Doherty referred to the trial judge having given the jury a lost evidence instruction:

[35]      .... In that instruction, she told the jury that if they found the prosecution’s explanations for destroying the evidence “inadequate”, they could infer that the lost evidence would not have assisted the Crown. That inference could, in turn, impact on whether the Crown had proved its case beyond a reasonable doubt.

See Garnot at paras 34, 23.

[64]      .... Cross-examination as to investigative measures that were not taken, the results which may reasonably have been expected from those investigations, and the significance of those results to the issues at trial do not involve the putting of “facts” to witnesses that were not part of the evidence. If a witness testified that had forensic testing been done, it could have revealed that traces of blood and that the location of that blood could have been important in determining the identity of a driver, those are “facts” which are in evidence.  Those facts could support a defence submission that in the absence of such evidence the jury should not be satisfied that the Crown had proved the driver’s identity beyond a reasonable doubt.

[125] ... And see R v RDA, 2015 SKCA 100, Caldwell JA, leave app refd [2016] SCCA No 73 at para 9 (CA): “While DNA evidence disclosing an absence of Mr. A’s DNA is not inconsistent with his version of events, it is not proof of what he said had happened either. It is simply a piece of relevant evidence that is material to the question of Mr. A’s credibility, as well as that of the complainant.”

[33]      There is no dispute but that forensic tests of the interior of the vehicle could have provided evidence relevant to the identity of the driver.  That evidence could have affected the appellant’s ability to defend himself.  Depending on the results, the tests could have influenced the appellant’s plea, the forum in which he chose to be tried, and the nature of the defence.  The failure to maintain possession of the vehicle deprived the appellant of information which was relevant in that it could have affected his ability to defend himself ….

See also Luo at paras 19, 28.

3. The Reasons for the Destruction of the Evidence

[131]      The Complainant’s position respecting her boyfriend’s DNA calls out for an explanation. Questioning might clarify whether the reason she gave was the true reason or the whole reason for not wanting the kit analyzed. There is a reasonable possibility that the Complainant’s explanation would have been relevant to whether she had a motive to fabricate her evidence against Mr. Peterson. Evidence of motive to fabricate could undermine the Complainant’s credibility.

[134] The Crown claimed, though, that “a s. 276 application on those grounds would have to fail:” MCR at para 31. I disagree. Again, the decision on a yet-to-be-heard s. 276 application would be made by another judge, but Justice McLachlin precisely countenanced questioning designed or evidence proffered to show motive to fabricate in R v Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 SCR 577 at 613-614 (“Another category of evidence eliminated by [then-] s. 276 relates to the right of the defence to attack the credibility of the complainant on the ground that the complainant was biased or had motive to fabricate the evidence”).

[136] Again, in my opinion, there is a reasonable possibility that disclosure relating to the reasons for the destruction of the kit and the clothes would have affected the outcome of the case.

4. Defence Due Diligence

[138] The Crown, very fairly, did not raise a lack of due diligence in seeking disclosure by prior (not current) counsel. The larger context for this application included another application by current counsel that have I not addressed in these reasons.

5. Conclusion

[141] I find, on a balance of probabilities, that the late disclosure of the destruction of the evidence and reasons for the destruction of the evidence establish reasonable possibilities that the outcome at trial would have been different had the disclosure occurred before Mr. Peterson was convicted.

[142] Mr. Peterson has therefore established, on a balance of probabilities, that his s. 7 rights to full answer and defence were violated by the late disclosure respecting the destruction of the evidence.

C. Remedy

[143] I said that this was not one of those rare cases that requires a stay as the appropriate remedy and that there are measures that may be taken to alleviate the prejudice arising from the destruction of the kit and the clothes – and I can now add the prejudice arising from the late disclosure of the destruction of the kit and clothes and of the reasons for the destruction.

1. Re-Opening

[145] My situation is akin to that described by Justice Trotter, as he then was, in R v Drysdale, 2011 ONSC 5451 at para 27-29:

[27]      .... The problem with continuing the trial was that I had already made a very strong adverse finding of credibility against Mr. Drysdale, one that caused me to reject his evidence as a whole ....

[146] Like Justice Trotter in Drysdale, I have made adverse credibility findings against Mr. Peterson. I convicted him. A reasonable person would not likely consider me to be the best judge to re-visit issues of credibility and inferences from missing evidence.

2. Mistrial

[148] The trial is over and cannot be re-opened. By establishing the reasonable possibility that the destruction of the evidence and the late disclosure affected the outcome at trial, Mr. Peterson has demonstrated that he is entitled to a new trial: Dixon at para 35.

[149] Mr. Peterson’s “ability to challenge credibility and reliability related to the Crown witness who was the entire basis of the Crown’s case:” R v Loo, 2020 ABQB 573, Ross J at para 22; see Barra at paras 154-155.

4. Costs

[155] The Crown did not engage in any misconduct amounting to bad faith. Neither did the Crown engage in a “marked and unacceptable departure from the reasonable standards expected of the prosecution.” The errors were made by the RCMP in 2014 and thereafter when called on to provide disclosure.

[157] The remedies I am granting Mr. Peterson rest on police errors. He is not at fault for those errors. Nonetheless, I cannot ignore the evidence. Current counsel was able to expeditiously obtain the information supporting my findings of s. 7 violations and remedies. I cannot find that access to that information would have been denied to prior counsel.

[159] While the conduct of prior counsel should not be a bar to vindicating Mr. Peterson’s rights to fundamental justice, I cannot find that an earlier lack of pursuit of disclosure justifies a monetary remedy for Mr. Peterson.

VI. Declaration and Orders

[161] I hereby declare a mistrial.

R v Grant, 2022 ONSC 2703

[May 30, 2022] Charter s.8 - The Sniff Test for Marijuana [Justice N.J. Spies]

AUTHOR’S NOTE: Although there is much to recommend this case to defence counsel including good application of s.8 and 10(b) law, the most interesting aspect of the case is the judge's meticulous examination of the exhibits filed in court to see if they accorded with the smell testified to by the primary officer in the vehicle stop case. Conclusions flowed both from smelling what could be smelled and observing was what closed and how much material was present. All this examination ultimately, with other factors, led to undermining the credibility of the officer's account. Defence counsel can used this case to argue that examination of exhibits by the Court for smell can be important - particularly in a marijuana based investigation. 

Introduction

[1] The defendant Triston Grant was charged with possession of cocaine for the purpose of trafficking.

[2] On September 5, 2020, police officers Miller and Minto of the Toronto Police Service stopped the vehicle Mr. Grant was driving because he was speeding. Although Mr. Grant denied traveling as fast as the officers alleged, there is no dispute that the initial detention of Mr. Grant was lawful. PC Miller approached the driver’s side of the vehicle to investigate the speeding infraction but then proceeded to question Mr. Grant about cannabis and items he saw in the vehicle. He demanded that Mr. Grant and his female companion exit the vehicle. Mr. Grant was then searched by PC Miller who also searched the satchel he was carrying claiming that these searches were authorized by the Cannabis Control Act (“CCA”). A quantity of what is alleged to be cocaine was found in Mr. Grant’s satchel and Mr. Grant was arrested.

[3] In advance of his trial, which was scheduled to begin on May 9, 2022, Mr. Grant brought an Application to exclude all the evidence police seized, alleging breaches of his rights under ss. 7, 8, and 10(b) of the Charter of Rights and Freedoms. The substance alleged to be cocaine formed the basis of the charge before this Court. Although this substance was not admitted to be cocaine, for the purpose of this application that is how I will refer to it.

[5] On May 9, 2022, I advised Mr. Grant and counsel that his Charter application was granted and that the evidence seized would be excluded from evidence at trial, with written reasons to follow. As a result, Mr. Grant re-elected trial without a jury before me and pleaded not guilty to the charge. Mr. Price, counsel for the Crown, advised that in light of my decision, the Crown had no evidence to lead. As a result, I dismissed the charge against Mr. Grant. My written reasons for my ruling on the Charter Application are as follows.

The Issues

[6] It is the position of Ms. Page, counsel for Mr. Grant, that PC Miller violated Mr. Grant's ss. 7, 8 and 10(b) Charter rights by asking him investigatory and potentially inculpatory questions at a time when he was detained but not advised of his rights to speak with counsel (“RTC”), not cautioned to remain silent, or told that he was not obliged to answer the officer’s questions or participate in what amounted to a search of the vehicle. It is also her position that the searches of Mr. Grant, his satchel, and the vehicle he was driving were unlawful and contrary to s. 8 of the Charter because PC Miller did not have reasonable grounds to believe that the vehicle contained cannabis in contravention of the CCA. It was also alleged that the arrest and subsequent search of the female passenger was also unlawful since the police did not have grounds to arrest her for possession of cocaine. Finally, it was alleged that Mr. Grant’s s. 10(b) Charter rights were again violated by the delay in providing him access to a lawyer. As a result of these alleged breaches, it is the position of Mr. Grant that all the evidence seized should be excluded pursuant to s. 24(2) of the Charter.

The Items Seized from the Vehicle and my Findings of Fact

[74] The small Ziploc bag that was seized is consistent with the size of a dime bag that is typically used for the sale of drugs, but it could be a small plastic bag for anything. I had an opportunity during my deliberations to open this bag and even up close there is no smell of marijuana coming from it nor is there any residue or powder on the inside of this bag. It certainly could have been a bag used for small parts as Mr. Grant testified to.

[75] PC Miller admitted that the grinder was handed over to him by Mr. Grant and that he opened it. I have examined the grinder and opened it myself. The grinder is a black cylindrical object made of metal with the word “Ruthless” on the top. There are no markings or symbols associated with marijuana on the grinder. It comes apart into three parts that screw together. I presume it was the top lid that was removed by PC Miller but that was not clarified in his evidence. It contains the prongs and is the part of the grinder that screws into the middle piece that also has prongs and small holes to let the ground marijuana fall into the bottom piece of the grinder. When this portion of the grinder is opened, there is a very small amount of some sort of residue that is stuck on the prongs. This residue is not loose and, in my view, given the amount and the fact this residue does not come out when these pieces are turned upside down, it would be absurd to suggest that this amount of residue could be smoked.

[76] As for the bottom piece of the grinder, the portion where the ground marijuana would be deposited, if PC Miller opened this part as well, he would have seen that it is empty. It does not contain any marijuana leaves or ground marijuana. It does contain a very small amount of brown powder that appears to be like dust at the bottom. Again, it would be absurd to suggest that this amount of powder could be smoked.

[77] In my view, given the grinder is made of metal and the three pieces were screwed together when PC Miller saw it, no odour would have emanated from it. In any event, given the minimal amount of marijuana residue and powder in the grinder, those substances would not have been enough to generate an odour of marijuana.

[78] The black plastic cylinder that was seized by PC Pablo from the floor area for the rear passenger is about six inches long and has a diameter of just over one and a half inches. It is made of rigid plastic and has a cap that must be pushed down and turned so it can be opened and closed, like a bottle of medication. When the cap on this container is on, it fits tightly and there would be no odour coming from it. It is only if this container is opened, and the opening of the container is brought close to one’s nose that there is a smell of marijuana.

[79] The marijuana roach that PC Miller seized and put in this container is about two- and one- half inches long but only a quarter inch in diameter. It has no smell coming from it unless it is brought close to one’s nose. I appreciate that it has been some time since it was seized.

[80] Finally, the yellow container that was seized by PC Pablo from the same area of the vehicle has a cap that slides on and off but fits tightly. It would have no odour when closed. When the cap is pulled off, the container appears empty on the inside. However, it has a circular piece in the middle that slides out to show prongs at the bottom of that piece and prongs projecting up from the bottom of the inside of the container and so I find that it too is a grinder. When this middle piece is pulled out, there is brown residue on the prongs and along the inside of the bottom of the container. The smell is faint and is not of marijuana. This container apparently had contained hash.

Analysis

Assessments of reliability and credibility

Findings of Fact

[92] I am prepared to accept that because of PC Miller’s training that he could smell the difference between burnt and fresh marijuana. I accept his evidence, given that Mr. Grant was a regular user of marijuana and had partially smoked a marijuana joint a couple of hours earlier that PC Miller would have smelled an odour of burnt marijuana although I doubt it would have been very strong given that Mr. Grant was driving with the sunroof open. As I already stated, in his evidence in chief PC Miller only testified that he noticed an odour of burnt marijuana whereas his notes state it was “very strong”. PC Miller also admitted that all the detail he testified to at the hearing about exactly where he was in terms of point A and point B when he smelled the odour of marijuana was not in his notes, which simply state that he could smell a “very strong odour of marijuana coming from the vehicle”. It is hard to believe that in the absence of notes to refresh hismemory that PC Miller would recall all these new details at trial.

[93] However, I do not accept PC Miller’s evidence that he smelled a “faint” smell of fresh marijuana coming from the vehicle as he was talking to Mr. Grant. The fact PC Miller made no distinction between smelling fresh and burnt marijuana when he made his notes is of concern because this was a new and important detail when he gave this evidence for the first time at the preliminary inquiry in July 2021, 11 months after his detention of Mr. Grant. The smell of fresh marijuana is obviously important to his decision to search Mr. Grant and the vehicle he was driving. It would be an important fact to support PC Miller’s evidence that he believed because there was one empty dime bag in the vehicle that there would be more marijuana in the vehicle that possibly was being transporting illegally i.e., in an open package that could be the source of a smell of fresh marijuana.

[94] My conclusion in this regard is strengthened by the fact that there was no source of fresh marijuana for PC Miller to smell. As I will come to, I do not accept his evidence that the roach was between Mr. Grant’s legs as he alleged. I accept Mr. Grant’s evidence that the roach was in one of his pockets and that it fell out when he stepped out of the car. That would mean that there is even less opportunity to notice any smell coming from the roach, which I doubt had much of a smell on its own in any event. In fact, PC Miller testified that he did not recall a smell coming from the roach and he handled it at the time.

[100] What is clear from the ICC Video is that PC Miller was stating what he observed inside Mr. Grant’s vehicle including the Ziploc bag in the footwell and the grinder as he saw these things. As PC Minto put it, PC Miller was “voicing out his observations” and he knew that it could lead to a CCA investigation to see if PC Miller had grounds to search the vehicle under the CCA. Based on what PC Miller did see inside the vehicle, had PC Miller seen the roach between Mr. Grant’s legs as he claims he did, I am convinced, given his exchange with Mr. Grant, that rather than debate about whether the residue in the grinder could be smoked he would have referred to the roach, which as he correctly stated would clearly have given him grounds to do a CCA search.

[101] I also find that if PC Miller saw the roach between Mr. Grant’s legs that he would not have asked him to exit the car without asking him to hand it over first. PC Miller had already seized the Ziploc bag and the grinder, and he knew by this point that Mr. Grant was cooperative and handing items he was pointing to over to him. It makes no sense that PC Miller would remain silent and have Mr. Grant exit the vehicle without first taking possession of the roach, knowing of its importance to his grounds to search and knowing that it would fall somewhere as Mr. Grant exited the vehicle. Mr. Grant’s evidence makes more sense. If the roach was where PC Miller alleged, he would have no idea where it would fall, and he would lose the benefit of putting on the recording that it was between Mr. Grant’s legs, which is clearly more incriminating than had it for example fallen on the floor of the vehicle. Furthermore, PC Miller would have realized that the roach could fall out on to the roadway in which case it would be his word against Mr. Grant’s that it was even in the vehicle to begin with, as opposed to a roach discarded by someone driving by.

[102] I also find that if the roach was where PC Miller testified it was, that it would have been easy for Mr. Grant to hide the roach by sitting on it or putting it under the bag of corn nuts, or elsewhere while he was waiting for PC Miller to check his computer before the officer approached the vehicle. Having heard Mr. Grant testify I find he was intelligent and informed enough to take steps to hide the roach, as he would know that the officer would approach the vehicle and would see it. He was afraid of the officer finding what he strongly suspected was cocaine and, in my view, he would not have left a roach in plain view between his legs. In fact, I accept Mr. Grant’s suggestion that the roach likely would have been the first thing the officer saw if it was in fact where PC Miller alleged it was.

[103] ... I appreciate that officers can be mistaken like any witness in giving evidence, but in my view PC Miller either saw the roach where he alleges it was or he did not. Unfortunately, I have concluded that he did not see it and I see no basis upon which I could conclude that he was mistaken. The only conclusion I can reasonably come to on the evidence is that he has given this evidence to bolster his grounds for conducting a CCA search of Mr. Grant and the vehicle he was driving.

Has Mr. Grant proven that his s. 7 and/or s. 8 Charter rights were breached when he was asked questions by PC Miller?

[136] The question before me is what degree of interaction between PC Miller and Mr. Grant was permitted in the circumstances. I have found that PC Miller did not smell any fresh marijuana and he did not observe any marijuana being transported illegally inside the vehicle. In my view, the purpose of PC Miller’s questions was to see if he could find evidence that marijuana was not being transported legally so he could justify a search of the occupants of the vehicle and the vehicle itself.

[138] In my view, even in the context of a regulatory investigation, it was not permissible for PC Miller to ask questions to see if there was marijuana in the vehicle that was not being transported legally when he had absolutely no reasonable basis to believe that there was based on his interaction with Mr. Grant and what he could see in plain view inside the vehicle. The questions were not asked for a legitimate purpose in accordance with a brief roadside stop that had transformed to a CCA investigation. As Doherty J.A. stated in Harris, the answers provided by Mr. Grant to PC Miller’s questions constituted a non-consensual taking of that information from him as a detained person contrary to Mr. Grant’s s. 8 Charter rights.

[139] The case of R. v. Mellenthin (1992), 1992 CanLII 50 (SCC), 76 C.C.C. (3d) 481 (S.C.C.) supports my conclusion. In Mellenthin, the defendant was pulled over by the police at a roadside checkpoint operated for the purpose of examining the roadworthiness of vehicles. The court found the stop was arbitrary but constitutional. However, the police officer used the opportunity afforded by the stop to randomly investigate other potential crimes. He questioned the driver about the contents of a bag that the officer noticed in the back of the vehicle. The driver's answers to the questions eventually led the officer to physically seize the bag. He discovered narcotics in the bag and charged the driver with possession of the narcotics.

[143] In the case at bar, although I have found the initial detention of Mr. Grant was lawful, I have found that the purpose of PC Miller’s questions was to see if he could find evidence to justify a search of the occupants of the vehicle and the vehicle itself. I accept the evidence of Mr. Grant that he felt compelled to answer the officer’s questions and hand over the items that the officer was asking him about. Mr. Price argued that Mr. Grant was trying to divert the officer’s attention, so the officer did not search him and the satchel and find the cocaine. I accept, as Mr. Grant testified, that he was nervous about the fact that he had a substance on his person that he suspected to be cocaine, but I do not find that was why he was answering the questions posed by PC Miller in the manner that he did. I accept that the manner of the questioning by PC Miller caused him to provide information and hand over the items PC Miller was asking about. He did not do so voluntarily. In any event, PC Miller chose to accept the items and examine them. He did not tell Mr. Grant that he did not need to hand these items over. They were seized during their conversation.

[144] Mr. Grant's compliance with PC Miller’s directions was not informed. He was not advised that he was under no legal obligation to hand over the items. At the time, as I have said, PC Miller did not have reasonable grounds to believe that cannabis was being transported in the vehicle in contravention of s. 12(1) of the CCA.

[146] For these reasons I find that PC Miller’s questions of Mr. Grant were for the purpose of finding grounds to conduct a CCA search. There were no reasonable grounds for the questions that PC Miller asked, and the information the officer received from Mr. Grant was an unlawful seizure of information contrary to s. 8 of the Charter. Furthermore, PC Miller’s warrantless seizure of the Ziploc bag and the grinder was also unlawful, and his search of these items contravened Mr.Grant’s rights under s. 8 of the Charter. There is no evidence that Mr. Grant was aware of, let alone waived, his rights under s. 8 of the Charter.

Has the Crown proven that the search of Mr. Grant’s satchel was lawful and not contrary to s. 8 of the Charter?

[147] ... I find that PC Miller’s decision to have Mr. Grant and his friend exit the vehicle and to search them both, and Mr. Grant’s satchel and the vehicle itself was unlawful for the following reasons.

[148] ... He relied on the smell of burnt marijuana, the faint smell of fresh marijuana, the empty Ziploc bag that looked like a dime bag and the grinder.

[149] Had I found there was a smell of fresh marijuana then I agree that questions directed to determining the source of that smell and possibly a search of Mr. Grant and the vehicle would be reasonable as the CCA requires that any marijuana that is being transported must be sealed during transport. In those circumstances it would have been reasonable to assume there was marijuana in the vehicle that was not in a sealed bag. However, I have found that there was no smell of fresh marijuana, and that PC Miller was not being truthful when he gave this evidence.

[150] As for the smell of burnt marijuana, it is now legal to smoke marijuana and drive a vehicle provided the driver is not impaired and the driver is not transporting marijuana in a manner contrary to s. 12 of the CCA.

[154] This breach was compounded by PC Miller at the time, using the pretext of residue from grinding marijuana that he saw in the grinder as a reason to justify a s. 12(3) CCA search. The power to search the occupants of a vehicle and the vehicle itself pursuant to s. 12(3) of the CCA is a very significant power given to police and a significant intrusion into the privacy rights of the occupants of a vehicle. That power must be exercised lawfully, for valid public safety concerns where there are reasonable grounds to believe that a driver is impaired or is transporting cannabis illegally. In my view, the Courts must be vigilant to ensure that those powers are not abused by police as a pretext for a CCA search in the hope of finding incriminating evidence. In this case as I have already said, the suggestion that the residue in the grinder amounted to cannabis accessible to the driver that could be smoked was absurd.

[155] The breach of Mr. Grant’s. s. 8 Charter rights was exacerbated when after opening Mr. Grant's satchel and discovering a bag of white powder, PC Miller asked him what the white substance was. There is no doubt that PC Miller should not have asked Mr. Grant this question and he did admit this at trial. I appreciate that the Crown does not seek to rely on this utterance at trial but it is further evidence of PC Miller’s cavalier attitude to questioning Mr. Grant without considering the propriety of the questions he was asking.

[156] For these reasons I find that the search of Mr. Grant, his satchel and the vehicle was unlawful and a further breach of his s. 8 Charter rights.

Were Mr. Grant’s s.10(b) Charter rights violated by the delay in providing him access to a lawyer?

[170] In my view PC Miller arrested Mr. Grant and decided to keep him handcuffed in the back of his police car until he and other officers finished searching the vehicle Mr. Grant was driving and finished dealing with the female passenger and the vehicle. There were no concerns for officer or public safety. It was simply a matter of the convenience of the officers that Mr. Grant be kept waiting until they were ready to bring him to the station. Access to counsel could have been facilitated quickly by arranging to have Mr. Grant taken to the station after he was arrested but the officers gave this no thought.

[171] Once at the station Mr. Grant repeated that he wanted to speak to counsel. Further delay was necessary because of the decision to do a Level 3 search. However, as I have already pointed out there was a further 20-minute unexplained delay for a call to be arranged to Mr. Grant’s father after he repeated his desire to speak to his father at 2:13 pm to PC Miller and then PC Minto.

[172] It was only after almost another 30 minutes that PC Minto revisited the request by Mr. Grant to speak to a lawyer and he put him in touch with duty counsel. It was now more than two hours after Mr. Grant was given his RTC and he advised he wanted to speak to a lawyer.

[176] For these reasons I find that Mr. Grant has proven that there was a breach of his s. 10(b) Charter rights because of a delay in arranging for him to speak to a lawyer.

Should the items that was seized from Mr. Grant’s satchel be excluded as evidence at the trial pursuant to s. 24(2) of the Charter?

[183] In this case I have found that PC Miller was not truthful in certain respects when giving evidence to this Court and that alone was clearly a very serious and deliberate breach not only of Mr. Grant’s Charter rights at the time but PC Miller’s oath to tell the truth. The fact I have also found that he did so in order to attempt to justify an unlawful search makes it even more egregious. In my view his conduct was serious and should not be condoned by this Court. The unlawful search and this conduct strongly favour exclusion of the evidence. As for the s. 10(b) Charter breach, it too was serious, even though it had no causal link with the finding of the physical evidence.

[185] The arrest and search of any person without legal justification impacts on an individual's rightful expectation of liberty and privacy in a way that is more than trivial. The search must be weighed against the absence of any reasonable basis for justification. PC Miller took advantage of his lawful detention of Mr. Grant for speeding to unlawfully search him, his passenger and the vehicle. That conduct led directly to the discovery of incriminating evidence. The strong causal connection between the denial of Mr. Grant’s liberty, the unconstitutional search of his satchel and the subsequent obtaining of the incriminating evidence speaks to the profound impact of the breaches on his Charter-protected interests.

[190] For these reasons, balancing all the factors as required by Grant, and considering the comments of the Court in Le, I must focus on the overall repute of the justice system, viewed in the long term by a reasonable person, informed of all relevant circumstances and of the importance of Charter rights. I find that despite the fact that a substance the Crown alleges is cocaine was found on Mr. Grant’s person, the other Grant factors tip the balance of the s. 24(2) factors strongly in favour of the exclusion of the evidence. ...