The Defence Toolkit – June 5, 2021

This week’s top three summaries: R v Swain, 2021 BCCA 207: comp #motive to fabricate, R v Chu, 2021 ONSC 3825: #possession, and R v Fowler, 2021 ONSC 3180: warrants #corroboration.

R v Swain, 2021 BCCA 207

[May 26, 2021] Lack of Evidence of Complainant Fabrication [Reasons by Voith J.A. with Newbury and Abrioux JJ.A. concurring]

AUTHOR’S NOTE: Why would the complainant lie about this sexual assault? This frequently asked question often leads trial judges astray in the assessment of complainant evidence in sexual assault matters. The idea that no one would want to put themselves through a criminal trial can seem superficially compelling especially when their evidence does not have any hallmarks of a lying witness. However, this line of reasoning often flows from a reversal of the onus of proof. The accused never needs to explain why the complainant would lie. A lack of evidence of fabrication is not the same as a lack of motive to fabricate. Herein, the BCCA traverses these frequently oared waters. The Defence can use this case as a factual comparator and a great overview case. 

Facts

[1] The appellant was convicted of sexual interference against B.D. and of sexually assaulting her contrary to ss. 151and 271 of the Criminal Code, R.S.C. 1985, c. C‑46, respectively. The latter conviction was stayed in accordance with R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. The offences were alleged to have occurred between July 10 and 21, 2015, in Kamloops, British Columbia.

[2] Credibility was the central issue at trial. Because B.D. was under the age of 16 at the time, consent was not an issue. Nor was consent alleged. Instead, the issue was whether any sexual contact occurred between the complainant and the appellant.

[3] The trial judge rejected the appellant’s evidence, finding his testimony to be “inherently implausible” and incapable of raising a reasonable doubt. By contrast, he found the complainant to be a credible witness and he accepted her evidence.

[7] The complainant and appellant were 15 and 27 years old respectively at the time of the alleged incidents. B.D. testified that in July 2015 she stayed at her friend’s, C.D.’s, home for several days. At the time, C.D.’s sister, the appellant, and their two children, aged two and five, were also visiting. B.D. testified that she rarely interacted with the appellant during the visit. The only conversation she could recall occurred when a group visited a nearby waterpark, and that conversation related to his children.

[9] The complainant testified to two separate interactions of a physical or sexual nature with the appellant. The first interaction occurred after the complainant got a drink in the kitchen and was on her way down the outside stairs from the kitchen to the backyard. She testified that the appellant said, “I’m sorry, but I have to do this; don’t tell anyone”, and he “grabbed [her] butt”, using one hand. B.D. testified that she panicked when this happened but said, “Okay”, and kept walking.

[10] The second interaction occurred later when she went upstairs to put a glass in the kitchen sink. She testified that the appellant came up behind her claiming he was going to bed for the night. After putting her glass in the sink, she was standing facing away from him, on her phone, when he came up behind her and started touching her. She said that the appellant put his hand on her pyjama shorts and slipped his hand down the back of those shorts and “put one of his fingers inside of [her]”. He then “went to take [her] pants off”, and he also took her hand, placing it first on the outside of his pants and then down the inside of his pants so that she was touching his penis.

[11] The complainant said that when these things occurred, she panicked and told the appellant that her friend would be wondering where she was. The appellant then said, “Okay”, and he briefly kissed her in a manner that was “slightly aggressive, with tongue,” and she pulled away. Nothing further was said and she went downstairs to try to sleep in the hammock.

[14] The appellant confirmed that he had very little interaction with the complainant or with C.D. during the visit. They had come along on a visit to a waterpark, but the appellant testified that he did not speak to B.D. during that visit. He said that on July 18, 2015, he, his wife, her parents, and others went out for a birthday party. When they returned to the house, the family had some cake for dessert and both C.D. and the complainant joined them for the cake.

[15] He estimated that he went to bed at around 12:45 a.m. and woke up at about 5 a.m. when he heard “a lot of loud talking and laughing.” He went outside and found the complainant, C.D., and the 16-year-old son of a downstairs tenant in the backyard. This was the first time he had seen the tenant’s son, and he asked, “Who’s this?” He testified that he asked them whether they had to make so much noise, and then he sat and had three cigarettes.

[17] After smoking three cigarettes, and about 25 minutes after coming out of the house, he went back inside. He went upstairs to get a glass of water because there was no sink downstairs. He testified that B.D. was in the kitchen having a glass of chocolate milk. She put the glass on the kitchen island and she “tried to pull in to kiss [him]”. He pushed her away saying, “What are you doing? You’re 15!” and he went back downstairs. He said that the complainant did not actually make contact with him because he pushed her away before she could kiss him. He next heard about the incident some eight months later when he received a call from the police asking him to contact them.

[20] The trial judge said that the appellant had been a “confident witness”, that “his testimony contained no internal inconsistencies”, and that he had “essentially emerged unscathed by his cross-examination.” Nevertheless, he did not believe the appellant because he considered that his version of events was “inherently implausible.” This was on account of three factors.

[21] First, he considered it “highly unlikely that the 15-year-old complainant would engage in a sexualized conversation with other minors in front of Mr. Swain, a mature adult many years her senior, whom she did not know and with whom she had not previously spent any meaningful time or had any meaningful conversations.” He similarly considered it “highly unlikely that such a complainant would have unilaterally attempted to kiss Mr. Swain”.

[22] Second, he considered that the appellant’s certainty of memory was improbable and not worthy of belief. Specifically, he was sceptical that the appellant would, when he first spoke to the police months after the incident in question, have recalled small details such as “when he awoke (4:55 a.m.), when he went outside (5:00 a.m.) and how many cigarettes he smoked while outside (3).”

[23] Finally, he questioned why, if the appellant’s account were true, the complainant would have “fabricated in her phone diary a detailed version of events involving multiple incidents of sexual interference and sexual assault at the hands of Mr. Swain.”

Analysis

[26] The appellant argues that the trial judge improperly relied upon the complainant’s apparent absence of motive to fabricate her version of events and in particular, that he placed some onus on the appellant to explain why the complainant would have done so.

[27] This Court has considered the relevance of whether a complainant may have a motive to fabricate their evidence on a number of occasions: see e.g., R. v. R.W.B. (1993), 24 B.C.A.C. 1; R. v. Brown, 2006 BCCA 100; R. v. Rahimi, 2017 BCCA 33; R. v. Singh, 2021 BCCA 172; R. v. Greif, 2021 BCCA 187. This issue has been discussed most substantially, however, by the Ontario Court of Appeal, including in a series of recent cases: see e.g., R. v. Dindyal,2021 ONCA 234; R. v. Ignacio, 2021 ONCA 69, leave to appeal to SCC requested; R. v. MacKenzie, 2020 ONCA 646; R. v. J.H., 2020 ONCA 165; R. v. M.S., 2019 ONCA 869; R. v. Mirzadegan, 2019 ONCA 864; R. v. Bartholomew, 2019 ONCA 377; R. v. W.R., 2020 ONCA 813; R. v. Sanchez, 2017 ONCA 994; R. v. John, 2017 ONCA 622; R. v. O.M., 2014 ONCA 503; R. v. M.B., 2011 ONCA 76; R. v. L.L., 2009 ONCA 413; R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.); R. v. Jackson, 1995 CanLII 3506 (Ont. C.A.); R. v. Stewart, [1994] O.J. No. 811, 1994 CanLII 7208 (C.A.).

[28] From these cases, a number of largely consistent principles emerge. In some instances, an accused may seek to prove that a complainant has a particular motive to fabricate evidence. Proof of such a motive may substantially challenge the credibility of the complainant, which may be capable of raising a reasonable doubt. In other cases, the Crown may be able to prove, on the evidence, that the complainant has no motive to lie. Such a conclusion may serve as “a powerful platform to assert that the complainant must be telling the truth”: Bartholomew at para. 21; see also Batte at para. 120; Ignacio at para. 32.

[29] In most cases, however, the trier of fact will be provided no evidence of any motive to fabricate on the part of the complainant, but the evidence will fall short of actually proving that the complainant has no motive to fabricate: L.L. at para. 53; John at para. 93; Bartholomew at paras. 21–22; Ignacio at para. 32. The question becomes whether and how such an absence of evidence of motive can be considered by the trier of fact in assessing what is almost always the complainant’s credibility.

[30] Notwithstanding some recent ambiguity in the case law (see e.g., R. v. Cooke, 2020 NSCA 66 at para. 17; R. v. A.S., 2020 ONCA 229 at para. 59; R. v. S.H., 2020 ONCA 34 at para. 11), it has been held that a trier of fact is entitled to consider an absence of evidence of motive to fabricate when assessing a complainant’s credibility: see L.L.at para. 53; R. v. Stirling, 2008 SCC 10 at para. 12; MacKenzie at para. 34; W.R. at para. 18; and the clarifications provided in Ignacio at paras. 37–60. There are, however, certain risks arising from this consideration that must be avoided. These risks are often interrelated.

[31] First, the trier of fact must not equate the mere absence of evidence that a complainant has a motive to fabricate evidence with a proven absence of motive: see Greif at para. 41 and the other authorities referred to in that paragraph. The Crown must meet a high bar to prove an absence of motive to fabricate. For example, evidence that the complainant and the accused had a good relationship is insufficient, without more, to establish that the complainant had no motive to fabricate: Ignacio at para. 33; Bartholomew at para. 25; John at para. 94; L.L. at para. 45. The reason a high standard is required is the recognition that “[p]eople may accuse others of committing a crime for reasons that may never be known, or for no reason at all”: Bartholomew at para. 22; see also Ignacio at para. 31; M.S. at para. 14; Sanchez at para. 25; L.L. at paras. 44, 53.

[32] Second, and for the same reason, the trier of fact must not consider that an absence of evidence of motive to fabricate, or even a proven absence of motive, conclusively establishes that the complainant is telling the truth: R.W.B.at para. 28; Batte at paras. 121, 125; Mirzadegan at para. 14; Stirling at para. 11. In other words, the trier of fact may consider the absence of evidence of a motive to fabricate as one of various factors in assessing the complainant’s credibility and must not place excessive weight on it: R.W.B. at paras. 28, 48; Ignacio at paras. 47–58. In some cases, reliance on an apparent absence of motive to fabricate has been considered appropriate because it was “one of many” or one of “numerous” factors that were present in the court’s assessment of credibility: Ignacio at para. 3; L.L. at para. 53; O.M. at para. 109.

[33] Third, the trier of fact must not reverse the burden of proof, which remains on the Crown to prove its case against the accused beyond a reasonable doubt. Specifically, the trier of fact must not look to an accused to explain why a complainant has made the allegations they have or be under any impression that the accused has an onus to demonstrate that the complainant has a motive to fabricate evidence in order to achieve an acquittal: Greif at paras. 39–41; Stewart at para. 26; Batte at para. 121; M.S. at paras. 15–16. Most notably, this issue has arisen where Crown counsel has inappropriately cross‑examined the accused as to why the Crown’s witnesses would fabricate their evidence: see e.g., R. v. Ellard, 2003 BCCA 68 at paras. 21–24; R. v. Fierro, 2013 BCCA 436 at paras. 22–32; R. v. Roth, 2020 BCCA 240 at paras. 84–89. As this Court explained in Ellard:

[22] The potential prejudice arising from this form of questioning is that it tends to shift the burden of proof from the Crown to the accused. It could induce a jury to analyze the case on the reasoning that if an accused cannot say why a witness would give false evidence against her, the witness’s testimony may be true. The risk of such a course of reasoning undermines the presumption of innocence and the doctrine of reasonable doubt. The mind of the trier of fact must remain firmly fixed on whether the Crown proved its case on the requisite standard and not be diverted by the question whether the accused provided a motive for a witness to lie. …[Emphasis added.]

[35] The issue of motive, or an absence of motive, to fabricate played no role in the positions of the Crown or the appellant at trial. Instead this issue was raised, on several occasions, by the trial judge following the close of the evidence and during the submissions of counsel.

[39] Both counsel explained that it was inconsistent with the framework in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, to place the evidence of the complainant and the appellant on “an even platform” and to limit the consideration before the court to whose evidence the trial judge preferred. This early confusion was merged by the trial judge with the complainant’s apparent absence of motive to fabricate. Thus, the judge’s expressions of concern as to how to decide between the evidence of the complainant and appellant were interspersed with his enquiries, primarily to counsel for the appellant, as to why the complainant would have fabricated her version of events.

[41] He continued:

I mean I find myself thinking I have to answer that question. Now, maybe I don’t. Maybe, in fact, it’s just a matter of—of, you know, applying the—the onus of proof and—and particularly the presumption of innocence. But even so, anybody hearing this story, whether it’s a judge or a person on the street or anybody else would say: Why? Why would she make this up? Now, maybe there’s all sort of explanations that I haven’t heard about, but there’s—there’s little in the evidence here that suggests why she would do it.

[42] He was told at different times by defence counsel that the court did “not need to satisfactorily answer [these questions] in order to deal with the analysis in R. v. W.(D.).” Counsel explained that “it’s not always clear—if we had to wait for a situation where, okay, I understand completely why it is that she would lie about this, the reality is we’re not always going to find the reason.” He said, “We don’t know what was going on in her mind at the time that she wrote this diary.” He said, “[Y]ou’re left with that same problem—is ‘Why would she lie?’ But we don’t know why she would lie.” He continued, “There’s a few reasons why she might. Like I said, protecting her friend. Perhaps she felt spurned. Perhaps—we don’t know very much about her…”.

[47] Against this backdrop, I turn to para. 75 of the trial judge’s reasons. The appellant argues that this paragraph shows that the trial judge relied impermissibly on the complainant’s apparent absence of motive to fabricate:

[75] Another conclusion mandated by Mr. Swain’s version of events is that, even though the brief encounter in the kitchen was witnessed by no one else, the complainant thereafter fabricated in her phone diary a detailed version of events involving multiple incidents of sexual interference and sexual assault at the hands of Mr. Swain. Mr. Swain offers no explanation why the complainant might do such a thing and, of course, he is under no obligation to do so. Nonetheless, the absence of evidence offering some rationale or motivation for the complainant’s conduct in that regard reinforces its improbability.

[48] The trial judge’s reasoning and conclusions are problematic. It is clear, for several reasons, that the trial judge is speaking about the failure of Mr. Swain to provide a rationale or motivation for the complainant’s conduct rather than there having been no such rationale advanced in the evidence of the trial at large. First, para. 75 addresses Mr. Swain’s evidence and his “version of events”. It is preceded and followed by paragraphs that address his credibility.

[49] Second, the trial judge states both that “Mr. Swain offers no explanation why the complainant might do such a thing” and that “the absence of evidence offering some rationale or motivation … reinforces its improbability.” The words “offers” or “offering” pertain to the evidence of Mr. Swain. The word “its” pertains to Mr. Swain’s evidence. Thus, the trial judge considered that it was the “absence of evidence” from Mr. Swain about why the complainant would have fabricated her version of events that “reinforce[d] [the] improbability” of his evidence.

[50] In my view, para. 75 does indicate that the trial judge impermissibly shifted the onus to the appellant to explain the complainant’s apparent lack of motive to fabricate. While saying there was no “obligation” on the part of Mr. Swain to provide such an explanation, the judge “nonetheless” considered that his failure to do so weighed against him in the assessment of his credibility.

[51] It is inappropriate to engage in the piecemeal analysis of isolated sentences within the reasons for judgment of a trial judge. In this case, a review of the reasons as a whole, and in the context of the issues raised at trial, pulls in different directions.

[52] On the one hand, the trial judge correctly stated that the burden lies with the Crown to prove, beyond a reasonable doubt, each element of an offence, and that there is no obligation on an accused to disprove any of the evidence led by the Crown. He made this point both when he reviewed the various legal principles he addressed and when he began his “Analysis and Determination”. He was also cautioned by Crown counsel about placing any onus on the appellant to explain away the complainant’s apparent absence of motive to fabricate. An aspect of this caution is reflected in para. 75.

[53] There are, however, several recent decisions of this Court allowing an appeal where the trial judge had correctly described the appropriate burden of proof or standard of proof but then misapplied that burden. See e.g., R. v. Badyal,2020 BCCA 127 at paras. 71, 81–84; R. v. Hunter, 2016 BCCA 94 at paras. 24–26.

[57] In this vein, it is pertinent that the appellant’s failure to offer “some rationale or motivation” for why the complainant would have fabricated her version of events weighed significantly in the trial judge’s credibility assessment. In this case, only the complainant and the appellant gave evidence. The appellant “essentially emerged unscathed by his cross-examination” and the judge repeatedly expressed concern about how to address the credibility of the appellant and complainant respectively.

[58] The appellant argues that there was, apart from the complainant’s apparent absence of motive to fabricate, only one other “peg” to the trial judge’s assessment of his credibility, while the respondent argues that there were two other such “pegs.” I am now referring to the trial judge’s conclusions, in the paragraphs immediately preceding para. 75, that i) Mr. Swain’s “certainty of memory [was] improbable and not worthy of belief”, and ii) that it was “highly unlikely” both that the 15-year-old complainant would engage in a sexualized conversation in front of Mr. Swain and that she would have unilaterally attempted to kiss him. In either event, the trial judge’s reliance on the complainant’s apparent absence of motive to fabricate and on the appellant’s failure to provide any “rationale or motivation” for her conduct necessarily played a significant role in his credibility assessment.

[59] Based on these various considerations, I am of the view the trial judge impermissibly relied on the appellant’s failure to explain why the complainant would have fabricated her version of events, that this had the effect of shifting the burden of proof onto the appellant, and that this error was significant to the trial judge’s credibility assessment.

[61] Two other factors are relevant. First, “[w]here a central issue [at trial] is credibility and it is improperly undermined, an appellate court is often reluctant to apply the curative provision of the Code”: R. v. Eshghabadi, 2008 BCCA 163 at para. 15. Second, in R. v. Malik, 2013 BCCA 265, a case that is in this respect apposite, the Court found that the trial judge had rested his findings of credibility primarily on “two pillars”. Because one of those pillars could not stand, “it [was] not clear that his findings would be unaffected.” In such circumstances s. 686(1)(b)(iii) could not operate to preserve the verdict: at para. 64.

[62] I would set aside the conviction and order a new trial.

R v Chu, 2021 ONSC 3825

[May 27, 2021] Possession and Circumstantial Evidence [Ryan Bell J.]

AUTHOR’S NOTE: This case provides a good overview of the law of possession and proof by circumstantial evidence. The case's main charges turned on the issues of hidden controlled substances coupled with evidence of multiple people with access to the residence. Residency is insufficient to establish possession beyond a reasonable doubt in these circumstances.

Introduction and Background

[1] Dung D. Chu is charged with possession of cocaine, cannabis marihuana, cannabis resin, MDMA, and crack cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”), S.C. 1996, c. 19 (counts 1, 2, 5, 8, 9, 11, and 12). Mr. Chu is also charged with possession of psilocybin and cocaine, contrary to s. 4(1) of the CDSA (counts 6 and 10). Finally, Mr. Chu is charged with possession of property obtained by crime, contrary to s. 354(1) of the Criminal Code (counts 3, 4, 7, and 13).

[2] The offences are said to have taken place on October 8, 2015.

[3] The case against Mr. Chu rests entirely on circumstantial evidence. Eleven witnesses testified at trial, all of whom were members of the Ottawa Police Service. These witnesses testified about their surveillance observations and the seizures; Sergeant Trevor Dunlop provided expert opinion evidence.

Surveillance

[7] On September 15, 2015, the Ottawa Police Service Drug Unit began a drug investigation into Mr. Chu and Mr. Heman Ha, at 1235 Meadowlands Drive East and 710 Malibu Terrace. Surveillance was conducted on 13 days over a three-week period. In reviewing the surveillance evidence, I have used the Crown’s categories or groupings. The categories are:

(a) Mr. Chu’s use of 1235 Meadowlands;

(b) Mr. Chu’s use of 710 Malibu;

(c) Mr. Chu’s so-called “short meets”;

(d) Mr. Chu’s longer meetings in other residences; and

(e) Mr. Chu’s allegedly dangerous driving and “heat checks.”

(a) Mr. Chu’s use of 1235 Meadowlands

[8] On several different dates during the surveillance period, Mr. Chu was observed using a key to access 1235 Meadowlands. On September 17, 2015, an unidentified individual was allowed into the residence by Mr. Chu; the individual remained inside for 15 minutes. Shortly thereafter, Mr. Chu left 1235 Meadowlands and placed a white bag under the driver’s seat of his car. On September 21, Mr. Chu and an unidentified individual, both carrying bags, entered 1235 Meadowlands for a few minutes; when they left, they were carrying different bags. On October 2, Mr. Chu was observed counting out and giving money to an unidentified male at the front door of the residence. Shortly thereafter, Mr. Ha was seen entering the residence and, minutes later, all three men left the residence, with the unidentified man holding a white envelope.

[9] 1235 Meadowlands is the address shown on Mr. Chu’s driver’s license.

(b) Mr. Chu’s use of 710 Malibu

[10] On several occasions during the surveillance period, Mr. Chu was observed using a key to access the 710 Malibu residence. On September 16, two unidentified males (each with either a gym bag or a shoulder bag) were seen to enter and then leave the residence. On September 24, Mr. Chu was observed using his key to enter 710 Malibu. Three unidentified men were seen entering the residence at different times: one carried a cardboard box (which he later carried out), one had a backpack, and one entered empty-handed but left with a handbag. On September 28, Mr. Chu was seen leaving 710 Malibu with a hockey bag over his shoulder. The next day, Mr. Chu retrieved a hockey bag from his car and entered 710 Malibu. Also on September 29, two unidentified males were seen leaving 710 Malibu at different times, the first carrying a man-purse and a brown paper grocery bag, and the second carrying a box and a duffle bag over his shoulders. On October 8, Mr. Chu entered 710 Malibu, followed by an unidentified individual. They remained inside for approximately 13 minutes.

(c) Mr. Chu’s “short meets”

[11] On September 15, Mr. Chu had a “30 second” meeting in a parking lot, following which he attended 710 Malibu. On September 29, Mr. Chu was observed having a five-minute meeting in a parking lot. On October 2, Mr. Chu had a two-minute meeting in a restaurant.

(d) Mr. Chu’s longer meetings in other residences

[12] On September 22, Mr. Chu was observed at a 13-minute meeting after putting a big satchel into the trunk of his car. On September 29, Mr. Chu had a 35-minute meeting at another residence. Mr. Chu carried a hockey bag into and out of this residence. On October 8, Mr. Chu had a 10minute meeting at a residence, following which he placed “something” into the trunk of his car.

(e) Mr. Chu’s allegedly dangerous driving and “heat checks”

[13] On September 17, Mr. Chu was seen driving through a red light, travelling at a high rate of speed. The same day, he drove “fast” on Highways 416 and 401 and was seen “weaving” through traffic. On September 24, Mr. Chu was observed driving at a high rate of speed and cutting through traffic.

The Seizures

[14] On October 8, 2015, Mr. Chu was arrested. While conducting a search incident to arrest, the police seized items located on Mr. Chu’s person, including $1,380, two cell phones, a paper list of names and numbers, and three sets of keys. The seizures from Mr. Chu’s vehicle included $2,000 (Cdn.), held at the middle with an elastic band, a radar detector, and the ownership and insurance for the vehicle.

[15] The same day, searches were executed at and items were seized from 1235 Meadowlands and 710 Malibu. The seized items from 1235 Meadowlands included:

• two packages of cocaine (995.2 grams and 990.7 grams);
• two bags of dry cannabis marihuana (216 grams and 216.8 grams);
• two boxes of somatropin; 276 Viagra pills;
• $300 (Cdn.); $7,805 (Cdn.) in three bundles, held together with multiple rubber bands;
• a digital scale;
• a paper list of names and numbers;
• a large bag of rubber bands;
• Foodsaver vacuum seal system box of bags;
• a Zigzag box of bags;
• a large vacuum type bag containing empty packaging;
• two small hockey bags;
• empty BBQ wood chunks boxes;
• various documents, including two voting cards in the name of Kim Chieu Le and Dung Chu, respectively, with the address of 1235 Meadowlands, and a medical appointment letter addressed to Chien Le; and
• Canadian passports in the name of Dung Chu and Kiera Le.

[16] The bundles of currency, Viagra pills and the bag of elastics were seized from the master bedroom. The insurance documents were seized from the dining room. The cocaine was located in a box in another bedroom, together with a purse containing the two passports. The voter cards were located in the front door vestibule, and the two boxes of somatropin were seized from the kitchen.

[17] The items seized from 710 Malibu included:

• 5845 grams of marihuana;
• 81.6 grams of cannabis resin;
• 35 juju cannabis resin joints;
• 0.9 grams of powder cocaine;
• 461.8 grams of phenacetin;
• 999.8 grams of MDMA;
• 3.5 grams of crack cocaine;
• 6.8 grams of psilocybin;
• 5128 Cialis pills;
• 462 Viagra pills;
• packaging and bags;
• three digital scales;
• various documents, including paper lists and notebooks;
• a money counter;
• a binder labelled “inventory log”;
• bills and documentation in the name of Heman Ha;
• Foodsaver vacuum pack machine; and
• a spoon.

[18] The items were seized from the basement, three different bedrooms, and the dining room of 710 Malibu.

Opinion Evidence

[20] Sergeant Dunlop testified that based on his experience, the amount of cocaine seized approximately two kilograms and having a street value of approximately $200,000 – was not intended for personal consumption. The cocaine seized had a purity in the 90 per cent range. Sergeant Dunlop testified that phenacetin (also seized) is often mixed with cocaine as a buffing agent in order to maximize profits; he explained that a user would not add a buffing agent to the product they intended to consume. Sergeant Dunlop also testified that there were no items seized at the residence to facilitate the consumption of the controlled substances. It was also Sergeant Dunlop’s opinion, based largely on the amounts seized, that the MDMA, marihuana, cannabis resin, and juju joints were for the purpose of trafficking.

[21] The street value of the marihuana seized was between $60,000 and $96,000. Sergeant Dunlop explained that the marihuana seized from both locations was pre-packaged in common trafficking level increments. In his opinion, it would be highly unlikely that a user would purchase such a large amount of marihuana in half pound and quarter pound increments; the marihuana would rot before a heavy user could consume such a large amount.

[25] In his testimony, Sergeant Dunlop identified one of the documents seized as an inventory list; in his opinion, the references on the document were to different types of marihuana, with the numbers in full and half pound increments. In his opinion, the inventory log indicated the “amounts and quantities of marihuana, and who was getting which quantity.”

The Principles

Burden of Proof

[26] Mr. Chu is presumed to be innocent of the charges against him. The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of each offence. This may be accomplished by direct evidence or may be inferred from circumstantial evidence: R. v. Pham, 2005 CanLII 44671 (ON CA), at para. 18.

[27] It is not sufficient for the Crown to establish possible guilt or even probable guilt. For a finding of guilt to be made, the court must be sure that the offence was committed. There is no onus on Mr. Chu to prove anything, least of all his innocence. The burden remains on the Crown.

Possession

[33] On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question and, the accused must be aware of what that thing is. Both elements must co-exist with an act of control: R. v. Morelli, 2010 SCC 8, at para. 16.

[34] Constructive possession is established where the accused did not have physical custody of the object in question, but did have it “in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person”: Criminal Code, s. 4(3)(a). Constructive possession requires that the accused: (i) has knowledge of the character of the object; (ii) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him; and (iii) intends to have the object in the particular place for his “use or benefit” or that of another person: Morelli, at para. 17.

[35] In establishing possession, the Crown must prove the elements of knowledge and control beyond a reasonable doubt.

[36] As with other offences, the Crown may prove the essential elements of constructive possession by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence: R. v. Bains, 2015 ONCA 677, at para. 157. Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to the trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself: Bains, at para. 157.

[37] The element of control over the object is established by showing that the accused had an intention to exercise control. Where the person is shown to have control over the area where the object is stored, they can be found to exercise control over the object itself: Pham.

Circumstantial Evidence

[42] This case rests on circumstantial evidence. Where the Crown’s case depends on circumstantial evidence, the question is whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt is the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, at para. 55; R. v. Wu, 2017 ONCA 620, at para. 9.

[43] The circumstantial evidence does not have to totally exclude other conceivable inferences; “[i]t is still fundamentally for the trier [of] fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt”: Villaroman, at para. 56, citing R. v. Dipnarine, 2014 ABCA 328, at para. 22.

[44] Where evidence is circumstantial, the standard of proof beyond a reasonable doubt applies only to the final evaluation of innocence or guilt by the trier of fact; it does not apply “piecemeal” to individual items of evidence: Wu, at para. 15. The correct approach was summarized by the Court of Appeal for Ontario in R. v. Uhrig, 2012 ONCA 470, at para. 13, cited in Wu, at para. 15:

When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin [citations omitted]. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King [citations omitted].

Application of the Principles

Simple Possession: Counts 6/10

[56] There is no physical possession in relation to count 6 (possession of psilocybin) and 10 (possession of cocaine). The Crown must prove beyond a reasonable doubt that Mr. Chu had constructive possession of the drugs. In order to constitute constructive possession, there must be knowledge which extends “beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed”: Pham, at para. 15.

[57] Knowledge will often depend on the visibility of the object and the accused’s connection with the location. Occupancy does not automatically infer knowledge of the items within the dwelling: R. v. Grey, 1996 CanLII 35 (ON CA).

[58] Here, the prohibited substances were not situated in plain view of entering either property. Both residences have multiple room. Mr. Chu’s movements once inside the residences are unknown. Other individuals had access to both residences and still others visited both residences. There are other reasonable inferences available on the evidence that are consistent with Mr. Chu’s innocence and raise a reasonable doubt: that Mr. Chu did not have knowledge of the entire contents of 1235 Meadowlands and 710 Malibu, that he did not have the sole control of who accessed either location, and that Mr. Chu interacted with individuals at both locations for legitimate reasons.

[59] The Crown has failed to establish that Mr. Chu had constructive possession of the prohibited substances. I therefore find Mr. Chu not guilty on counts 6 and 10, the simple possession charges.

Possession for the Purpose of Trafficking: Counts 1, 2, 5, 8, 9, 11, and 12

[60] For similar reasons, I find the evidence is insufficient on the possession for the purpose of trafficking charges.

[61] Mr. Chu was a resident of 1235 Meadowlands and had a key to 710 Malibu. However, he was not the only resident of the first, and not the only one with a key to the latter. Other unidentified individuals visited both properties. Mr. Chu was not observed at 1235 Meadowlands on October 8, the date of the alleged offences. Mr. Chu was inside 710 Malibu for 13 minutes on October 8. His movements inside the residence on that date are unknown. The prohibited substances were not situated in plain view. Residency and access do not automatically infer knowledge of the entire contents of a residence, nor do residency and access automatically infer control. The constellation of factors around Mr. Chu’s relationship to the properties is simply insufficient to satisfy me beyond a reasonable doubt on the elements of knowledge and control.

[62] I therefore find Mr. Chu not guilty of the possession for the purpose of trafficking charges – counts 1, 2, 5, 8, 9, 11, and 12.

Possession of Property Obtained by Crime: Counts 3, 4, 7, and 13

[63] The Crown submits that the inferences drawn from the circumstantial evidence establish beyond a reasonable doubt that the money seized from 1235 Meadowlands, 710 Malibu, and on Mr. Chu’s person incident to arrest are proceeds obtained by crime.

[64] For the same reasons I have already outlined, the Crown has failed to establish knowledge and control of the proceeds seized from the residences beyond a reasonable doubt. In addition, because the simple possession and possession for the purpose of trafficking charges have not been proven, I find the Crown has failed to establish that these proceeds were derived as a result of the commission of an indictable offence.

[65] As for the money on Mr. Chu’s person when he was arrested, there was evidence elicited on cross-examination from Detective Cory that he was aware Mr. Chu worked at a restaurant. Defence counsel proffered the suggestion that the money seized from Mr. Chu may have been cash payment for his work at the restaurant. This is a reasonable explanation, one which raises a doubt as to Mr. Chu’s guilt.

[66] For all these reasons, I find Mr. Chu not guilty on all counts.

R v Fowler, 2021 ONSC 3180

[May 26, 2021] Charter s.8 - Review of Search Warrant: Failure to Corroborate [Justice A. Doyle]

AUTHOR’S NOTE: This case provides an excellent overview of the leading defence-oriented authorities on the review of a warrant for sufficiency. The Debot factors for assessing a confidential source tip - compelling, credible, and corroborated - are well-known, but police still regularly fail to meet their onus on corroboration. Sitting in your office on a computer and running some database searches doesn't really do it. When this is coupled with too much of the credibility information being redacted from the reviewed warrant or simply being held back, the prosecution runs a real risk of failure. Real corroboration requires some field work. 

Overview

[1] The accused, Nicole Marie Fowler, brings this application to exclude from evidence items seized on July 18, 2018 from her residence on the basis that her rights under ss.8 and 24(2) of the Charter of Rights and Freedom have been breached and the admission of these items in these proceedings would bring the administration of justice into disrepute.

[2] The issues for determination are:

• Did the Information to Obtain (ITO) to obtain a search warrant establish that there were reasonable and probable grounds that the items to be seized would prove the commission of an offence?
• If yes, then should the items seized be excluded from evidence?

Facts Overview

[5] On July 18, 2018, Ms. Fowler was found in her residence at 65 Curtis Crescent, Kingston, ON, (“residence”) when the police executed a search warrant targeting Mr. Wade Fox.

[6] The search yielded seizures of a loaded firearm, ammunition, prohibited weapons, $65,739.60 in cash and drugs.

[7] The ITO relied on information received from two Confidential Human Sources (CHS/informers) and an unnamed Crime Stoppers’ tip.

[8] Mr. Fox has resolved his charges with a guilty plea.

Defence Argument

[9] The Defence argues that the ITO is deficient as follows:

- No details of the CHSs criminal records except for confirmation that there are no convictions for perjury;

- No details if the CHSs have ever been convicted of offences dealing with dishonesty such as fraud or theft;

- The CHS’s credibility is particularly diminished as they are motivated by money and/or a consideration for their own charges;

- There was little of the expected police investigation to corroborate this information, including no surveillance;

- There was no information that the guns that Mr. Fox possessed were actually in his residence; and

- Redactions that were made on the ITO to protect the identities of the CHS’s do not provide reasonable and probable grounds for the search of the residence to locate a gun.

Legal Principles

[14] The Crown and defence agree on the general legal principles that apply.

[15] A reasonable search must include the prior authorization from an individual acting in a judicial manner who is assessing in a neutral and impartial manner and that there must be reasonable and probable grounds to believe that an offence has been committed and that evidence of this will be found in a particular case.[1]

[16] Reasonable grounds is one of “reasonable probability” or “reasonable belief”.[2]

[17] In determining the weight of the evidence relied on by the police to justify a search, the Court must consider:

-         Whether the information setting out the commission of the offence is compelling;

-         Where the information was based on an informer’s tip, whether that source was credible; and

-         Whether the information was corroborated by a police investigation prior to the decision to request a search.[3]

[18] A search will be considered reasonable if it is authorized by law and the law is reasonable and the manner in which the search was carried out is reasonable.[4]

[19] The test to be applied when reviewing the sufficiency of information in a search warrant is set out in R. v. Garofoli[5]where the Supreme Court confirmed that this Court does not substitute its decision for that of the authorizing judge.  This Court should only interfere if it concludes that the authorizing Judge should not have granted the authorization. It is clear that this court may not substitute its own view nor consider the results of the search in the assessment of the sufficiency of the grounds. [6]

[20] In Garofoli,[7] the Supreme Court summarized this area as follows:

Moreover, I conclude that the following propositions can be regarded as having been accepted by this Court in Debot and Greffe.

(i)  Hearsay statements of an informant can provide reasonable and probable grounds to justify a search.  However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.

(ii)  The reliability of the tip is to be assessed by recourse to "the totality of the circumstances".  There is no formulaic test as to what this entails.  Rather, the court must look to a variety of factors including:

(a)  the degree of detail of the "tip";

(b)  the informer's source of knowledge;

(c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources.

(iii)  The results of the search cannot, ex post facto, provide evidence of reliability

[21] In R. v. Debot[8], the Supreme Court affirmed the Ontario Court of Appeal’s decision[9] that the ITO cannot contain “mere conclusory statements but rather whether there is sufficient detail to ensure that the information is not based “on mere rumor or gossip”, and whether the information discloses his/her source of information or means of knowledge and whether there is any indicia of his/her reliability such as supplying reliable information or confirmation by police surveillance.

[23] As stated  by Hill J. in R. v. MacDonald[10] there is no expectation that the search warrant applications prepared by officers will reach the standards of lawyer created documents.  Nevertheless, it is an application to authorize an intrusion of a reasonable expectation of privacy in a residence and hence there is no room for “casual adherence to statutory and jurisprudential rules in applying for a warrant…”

[24] In R. v. Hosie[11], the Ontario Court of Appeal found that the language in the information was careless and not consistent with the standard of care expected from a police officer applying for a search warrant.  The Court stated that “There is no indication as to the informer’s source of knowledge or how current the information is.” and “There is no way to know whether the informer has obtained his information through personal observation as opposed to rumour or second or third-hand information.”

Analysis

[27] The onus is on the defence to prove on the balance of probabilities that the ITO was not sufficient to show that on reasonable and probable grounds the seizure of the items will afford evidence with respect to the commission of an offence.

[28] I find that the ITO as presented (i.e. with redactions) did not rise to the level required, i.e. the information was not detailed, compelling and sufficient to meet the reasonable probability test set out in R. v. Caissey.[13]

[29] In Caissey, the Supreme Court of Canada accepted the majority decision of the Alberta Court of Appeal [14], which set out a step by step process in analyzing ITO’s. At paras. 15, 16, the court reiterates that: “Mere conclusory statements by an informant are not sufficient to constitute reasonable and probable belief…”

[30] Turning to the ITO in this case:

[31] Firstly, the information that pertains specifically to this matter commences at the bottom of p. 7 of the ITO. The first 7 pages consist mostly of introductory boilerplate information.

[32] In support of the ITO for a search warrant of the residence dated July 18, 2018, Detective Constable Davidson (“DC Davidson”) of the Kingston Police relied on the following....

[33] Regarding the credibility consideration, this is meant to capture the informer’s motivation, criminal antecedents or any past history of providing reliable information to the police, I find the following regarding both CHSs:

- There was past involvement of providing information that led to charges but not convictions;

- The informer's credibility is weakened by his/her self-interested motivation and their criminal lifestyle; I do note that this not unusual in these type of drug cases and this fact is not itself fatal; and

- There was no disclosure as to whether the informers had criminal records for crimes of dishonesty

[34] In R. v. Rocha (2012) 2012 ONCA 707 (CanLII), 292 C.C.C. (3d) 325, the Ontario Court of Appeal criticized this type of limited disclosure regarding an informant’s criminal records.  Here, the Crown indicates that the disclosure of further details would limit the pool of possible informants in Kingston and there is an obvious need to protect the identity of the source.  There was no request by the Crown here for amplification of the ITO as permitted in R. v. Araujo (2000) 2000 SCC 65 (CanLII), 149 C.C.C. (3d) 449 (S.C.C.) and R. v. Morelli (2010) 2010 SCC 8 (CanLII), 252 C.C.C. (3d) 273 (S.C.C.).

[35] However, as stated by Wilson J in Debot, at 1168 “Weaknesses in one area may, to some extent, be compensated by strengths in the other two”.

Is the Information Compelling?

[37] There is some compelling evidence. There were two separate confidential human sources who had both provided reliable information in the past that have had led to arrests of wanted persons and laying of CDSA charges and seizures of drugs and cash. However, no information was provided that information from CHS#1 and CHS#2 had led to convictions.

[38] DC Brown was not aware of any false or misleading information from CHS#1. CHS#1 advised in July 2018 that Mr. Fox was still in possession of handgun and ammunition and described his evidence but again not the location of the handgun. The information is current but not detailed regarding the location of the handgun.

[39] The crime stoppers tip of May 22, 2018 again confirms that Mr. Fox is in possession of a .22 Caliber pistol but no indication of where it is located.

[40] The information found in the ITO is not up to the standard demonstrated in Rocha, where the information provided where the drugs would be found in the restaurant, that the informer had observed 10 to 15 drug transactions in the restaurant where the drugs were stored, how they were packaged and how the drugs were obtained by the accused’s brother.

[41] In R. v. Kesselring[15], the informer’s tip was found to be compelling as he/she provided considerable detail of the accused, names of the occupants of the house, physical description of the accused, a description of the house, its location, his description of the detailed information regarding the hydroponic marijuana growing operation.

[42] Regarding the crime stopper’s tip here, there is no information regarding past record of reliable information. However as noted by the Court in Greaves-Bissesarsingh at para. 37, these tips have in the past been found to be compelling if supported by some corroboration.  R. v. Plant (1993) 1993 CanLII 70 (SCC), 84 C.C.C. (3d) 203 (S.C.C.) and R. v. Kesselring.  The weakness in the credibility of this tip is counterbalanced by the fact that there is corroboration here from other informers.

[43] To reiterate there was information that Mr. Fox was in possession of a hand gun but nothing stating that it would be located at 65 Curtis Crescent, a residence he shared with Ms. Fowler.  Any statement or fact that could have corroborated that fact, was redacted.

Was there Corroborative Evidence?

[44] Regarding the police’s investigation to corroborate the information provided by the tips, it did reveal the following:

- That Mr. Fox and Ms. Fowler lived at the Curtis residence; and

- That Mr. Fox was known to the police.

[45] There were only computer searches. There was no surveillance of the Curtis residence nor any further investigation as to whether the gun was actually in the residence.

[46] In the Greaves-Bissesarsingh case, the informer’s tip was detailed and current and repeatedly disclosed means by which the information was obtained and that firearm was in the residence. There the police independently established the accused’s age, description, his residence, the people who resided there, and the car he had access to. The police attended at the address provided by the informer and interviewed security staff at the building to learn that the unit referred to by the informer was registered to another individual and that the accused was living there. The police investigation thereby diminished the possibility of hearsay or rumour.

[47] However, the connection and strength of the information from the three separate informers deals more with the fact that Mr. Fox is a drug dealer and possesses a gun rather than information that is credible and compelling that the gun is actually in the residence.

[48] The police investigation confirmed Mr. Fox’s past involvement with drugs but no criminal activity regarding possession of firearms. However, he is subject to a lifetime prohibition from possessing firearms.

Totality of the Circumstances

[49] In reviewing the “totality of the circumstances” approach as laid out in Debot and Greffe and Garofoli, I find that the authorizing judge could not have granted the warrant and there was a breach of s. 8 of the Charter.

Charter s.24(2) Analysis

[50] Now turning to the R. v. Grant[16]analysis:

 Seriousness of the Charter infringing state conduct:

- I find that the drafting by the police found in the ITO was not in accordance with the standard expected of law enforcement; ...

- The police were not diligent in completing their own investigation other than a computer check to corroborate the information received from the informants; ...

-The size of one’s community is not an indication of the level of privacy one expects under s. 8 of the Charter. The rights and freedoms under the Charter apply to everyone equally across Canada; and

- This analysis favours exclusion of the evidence.

Impact on the Charter-protected interests of the Applicant

- However, this does not diminish the fact that the Applicant’s residence where she should expect a high level of privacy was intruded on.

- In my view this analysis is neutral and does not favour either exclusion or inclusion.

Society's Interest in the adjudication on its merits

... - The safety of the public is at risk with these types of charges and the public deserves a trial on their merits; and ...

[51] Regarding the final stage of balance, I find that in review of all of the above factors set out above would conclude the exclusion of the evidence. I conclude that the admission of the evidence obtain by the Charter breaches would bring the administration of the justice into disrepute.

[52] This is not simply a question of whether the majority of factors favour exclusion. The Court must consider the long-term repute of the administration of justice.

[53] As stated in R. v. Hosie:

The courts should not be seen as condoning the use of language in search warrants which masks the true state of affairs and deprives a judicial officer of the opportunity to fairly assess whether the state's interest in detecting crime outweighs the individual's privacy interest in his or her own home.

[54] After considering the three-step analysis in Grant and in all the circumstances discussed above, the Court finds in favour of the exclusion of the evidence as it would bring the administration of justice into disrepute.

[55] The Defence application is granted.

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