This week’s top three summaries: R v Lights, 2020 ONCA 128, R v Robertson, 2020 SKCA 8, and R v Hussein, 2020 SKPC 8.
R v Lights (ONCA)
[February 18, 2020] Evidence: Knowledge and Possession - Firearms and Controlled Substances - 2020 ONCA 128 [Reasons by David Watt J.A., with Grant Huscroft J.A., and Gary Trotter J.A. concurring]
AUTHOR’S NOTE: Although the law of possession (and knowledge as it relates to possession) is well-settled, it has been some time since an authoritative appellate decision has come down on this with a positive result for the defence. Justice Watt does just that in this case. A good summary of possession law and an acquittal an many serious charges are the result. Perhaps the lasting impact will come from the finding that from mere possession of a handgun, there is no inference of knowledge that it is loaded.
Pertinent Facts
[1] On a midwinter night a few years ago, Michael Lights (the appellant) had some friends over to the apartment he and his girlfriend, Kimberley Johnson, shared. The appellant, who had suffered a broken leg in a motor vehicle accident several weeks earlier, had just returned from a week in the Dominican Republic the previous day.
[2] The appellant and his friends gathered in the living room. Four of them, including the appellant, sat on a couch. The other two sat on chairs or stood in a bar area adjacent to the living room. One of the men was smoking marijuana. Ms. Johnson remained in the bedroom.
[3] Around 11:25 p.m. someone opened the apartment door with a key. Several men entered. They were armed. They identified themselves. Toronto Police. Search warrant. Raise your hands.
[4] Six armed police officers took control of the apartment. All of its occupants were placed under arrest. The appellant was charged with several firearm and drug offences, as well as one count of possession of the proceeds of crime.
[5] After a trial before a judge of the Superior Court of Justice, sitting without a jury, the appellant was convicted of each offence with which he was charged. He was sentenced to a term of imprisonment of 9.5 years, which the judge reduced to a net sentence of 64 months after awarding credit for pre-sentence custody.
The Gun
[13] Although the first police officer who entered the apartment noticed the appellant pushing this silver object under his buttocks or between his legs, it was the third officer to enter the apartment who approached the appellant. The officer took the appellant to the ground and yelled “Gun” to alert the other officers in the apartment. The gun was a silver Ruger semi-automatic handgun. The officer proved the weapon safe by removing its magazine.
[14] The firearm seized from the appellant was a Ruger .22 calibre semi-automatic handgun with an 11-shot detachable box magazine. It is a restricted firearm within s. 84(1) of the Criminal Code, R.S.C. 1985, c. C-46. It was admitted at trial that this firearm was found together with readily accessible ammunition capable of being discharged in the firearm.
The Drugs
16] A black duffel bag was on the floor near the entrance from the kitchen to the living room. None of the officers noticed this bag when they entered the apartment to execute the search warrant. The bag was away from the area of the couch where most of the men, including the appellant, were sitting, and the bag was equidistant from all of them. There was no identification in or attached to the bag.
[17] Inside the duffel bag were several smaller bags. In one sealed bag was one kilogram of marijuana. Four smaller Ziploc bags also held marijuana. In two other bags were about two ounces of cocaine.
The rest of the home
[18] Police found a locked safe in the bedroom closet. On top of it was a lockbox. There was also a coke can with a hidden compartment. The appellant had a key to the safe in his pocket when he was arrested.
[19] Police prised the safe open. Inside it was a brown pouch. And inside the brown pouch were some bills bundled together: $9,450 CAD and $442 USD. A gun and a magazine fit in the gun safe.
[20] Several items bearing the appellant’s name, some including the address of the apartment, were found in the bedroom. A passport with a stamp from the Dominican Republic dated the previous day. A birth certificate. Prescription medication. A health card. Medical and dental appointment cards and reminders. Credit card and service provider statements. And a lease agreement for the apartment in the name of Paul Hibbert. There were similar documents for Kimberley Johnson.
[59] No firearms examiner testified at trial. Instead, a document containing several formal admissions was filed as an exhibit. The admissions included the contents of a Certificate of Analysis by a person designated by the Toronto Police Service as an examiner of weapons, prohibited devices, ammunition and prohibited ammunition, including their parts and components. It did not, however, establish any difference between the firearm being loaded or unloaded.
The Law: Unreasonable Verdict
[30] A verdict is unreasonable if it is one that no properly instructed jury, acting judicially, could reasonably have rendered. This test requires not only an objective assessment of the evidence adduced at trial, but also, to some extent at least, a subjective evaluation of that evidence. To discharge this responsibility, we are required to review, analyse, and, within the limits of appellate disadvantage, weigh the evidence. This weighing is only to determine whether that evidence, considered as a whole, is reasonably capable of supporting the verdict rendered: R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 186; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at p. 663.
[31] A verdict may also be unreasonable where a judge has drawn an inference or made a finding of fact that is plainly contradicted by the evidence or is incompatible with evidence that is not otherwise contradicted or rejected: R.P., at para. 9, citing R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16, 19-21.
The Law: Circumstantial Evidence
[36] When the Crown’s case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 20.
[37] To determine if the circumstantial evidence meets the required standard of proof, the trier of fact must keep in mind that it is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that is but a link in the chain of proof: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at paras. 81-82; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 360-61; Côté v. The King(1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76.
[39] When a verdict that rests wholly or substantially on circumstantial evidence is challenged as unreasonable, the question appellate courts must ask is whether the trier of fact, acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole: Villaroman, at para. 55. Fundamentally, it is for the trier of fact to determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused: Villaroman, at para. 56.
The Law: Possession
[44] Section 4(3) of the Criminal Code defines possession. It includes:
- personal possession;
- constructive possession; and,
- joint possession.
Our concern here is with personal possession and constructive possession. Knowledge and control are essential elements common to both: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15.
[45] When personal possession is alleged, the knowledge element consists of two components. An accused must be aware that they have physical custody of the thing alleged. And an accused must be aware of what that thing is. These elements of knowledge must co-exist with an act of control: Morelli, at para. 16. See also R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531, at pp. 541-42.
[46] When personal possession is not alleged or cannot be established on the evidence, the Crown may rely on constructive possession to prove its case.
[47] Constructive possession is established when an accused does not have physical custody of the thing but has it in any place for their own or another's use or benefit: Criminal Code, s. 4(3)(a)(ii). Constructive possession is complete where an accused:
- has knowledge of the character of the thing;
- knowingly puts or keeps the thing in a particular place, irrespective of whether the place belongs to or is occupied by the accused; and
iii. intends to have the thing in the place for the use or benefit of the accused or of another person.
Morelli, at para. 17.
[50] When things are found in a premises or place occupied by an accused, no presumption of knowledge and control arises from proof of occupancy. Put simply, occupancy does not create a presumption of possession: R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at para. 3.
[51] We define knowledge as true belief: United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at para. 41. It includes not only actual knowledge but also wilful blindness.
[52] Wilful blindness involves a degree of awareness of the likely existence of the prohibited circumstances together with a blameworthy conscious refusal of self-enlightenment. A person, aware of the need for some inquiry, who declines to make that inquiry because they do not wish to know the truth, is wilfully blind: R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, at paras. 27-28; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 22-24; Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, at p. 584.
The Law: Conviction Under s. 95 - Possession of Loaded/Restricted Firearm
[66] Under s. 95(1), the Crown must prove beyond a reasonable doubt that the appellant knew that the firearm was loaded: R. v. Eastgaard, 2011 ABCA 152, 276 C.C.C. (3d) 432, at para. 8, aff’d 2012 SCC 11, [2012] 1 S.C.R. 393; R. v. Hunter, 2016 BCCA 94, at para. 25.
[69] Wilful blindness, perhaps better described as “deliberate ignorance”, involves a person who has become aware of the need for some inquiry but declines to make that inquiry because they would prefer to remain ignorant: Sansregret, at p. 584; Briscoe, at para. 22. The doctrine is narrow in scope lest it become indistinguishable from negligence in failing to acquire knowledge: Briscoe, at para. 23, citing Glanville Williams, Criminal Law, The General Part, 2nd ed. (United Kingdom: Stevens & Sons Ltd., 1961), at p. 159.
Application of the Law - The Firearm
[73] The trial judge accepted the evidence of the police officers who executed the search warrant at the appellant's apartment. This evidence, taken as a whole, established that the appellant was in actual possession of the Ruger handgun, which he attempted to move beneath his buttocks as he sat on the couch in the living room area of the apartment. The gun, fully loaded with a box magazine containing 11 cartridges, is a restricted firearm. This evidence established the actus reus of the offence under s. 95(1).
[75] In my view, knowledge of the nature of the object he handled as a firearm, without more, does not establish knowledge, actual or imputed, that the firearm was loaded. The problem, as I see it, is twofold. I would characterize the conclusion as the product of speculation, not inference. And, in the circumstances of this case, even characterizing it as an inference does not meet the standard of proof required, that is to say, it is not the only reasonable inference available on the totality of the evidence.
[77] For these reasons, I am satisfied that the conviction on this count cannot stand. I would set it aside as unreasonable and enter an acquittal on that count.
[Note: Accused was still convicted of the possession of a firearm on these facts - just not with readily accessible ammunition]
The Application of the Law - The Drugs
[78] The appellant was convicted of two separate drug counts: possession of marijuana and of cocaine for the purposes of trafficking. Like the possession of a loaded firearm offence, I conclude that these verdicts are unreasonable.
[80] The drugs that were the subject-matter of these counts were those found during the search of the black bag found in the front hallway of the appellant's apartment. The bag was zipped closed. No identification was found attached to it, displayed on it or located inside it. Officers executing the search warrant did not see the bag when they entered the apartment. They only saw it after all the occupants had been arrested and secured and a more thorough search of the apartment had begun. The bag was equidistant from the various occupants.
[81] Searching officers found several other things associated with drug trafficking at different places in the apartment. A vacuum sealer. A money counter. Scales. Baggies. Marijuana. A safe containing $9,450 in currency and two cellphones.
[98] In some instances, occupancy of premises, more particularly, the authority to control access to them, may support an inference of control over drugs found there when coupled with evidence of knowledge: Re Chambers and the Queen (1985), 1985 CanLII 169 (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.), at pp. 446-48. See also R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 203 C.C.C. (3d) 326 (Ont. C.A.), at paras. 25-29.
[101] Absent evidence of actual physical possession, the Crown was required to show that possession of the drugs in the bag could be attributed to the appellant under s. 4(3)(a)(ii) of the Criminal Code (constructive possession) or that he was in joint possession of them under s. 4(3)(b).
[102] To establish constructive possession, the Crown was required to prove that the appellant knew the bag contained drugs, intended to possess them and had the necessary control over them. Because the evidence the Crown relied upon was entirely circumstantial, to establish the appellant’s guilt beyond a reasonable doubt the Crown was required to prove each essential element was the only reasonable inference available on the evidence taken as a whole.
[104] In this case, the evidence disclosed that, although he did not sign the lease, the appellant was a principal occupant of the apartment. And as the principal occupant, it is reasonable to infer that the appellant controlled access to the premises.
[105] But the black duffel bag and its contents was in a common area near the entrance to the apartment, equidistant to all six male occupants in possession of three fully-loaded handguns. The duffel bag was closed, its contents not visible from its exterior. There was no identification in, on, or attached to the bag. No forensic evidence linked the appellant to the bag. There was no evidence of its origins or how it came to be in its location. In these circumstances, we simply cannot say that the only reasonable inference from the evidence as a whole is that the appellant was in possession of the bag and its cache of contraband.
[Since a conviction remained on the possession of a firearm without a license remained - the sentence for that offence remained]
R v Robertson (SKCA)
[January 17, 2020] Self Defence and Clarity in Jury Instructions - 2020 SKCA 8 [Reasons by Kalmakoff J.A. with Schwann J.A. and Leurer J.A. concurring]
AUTHOR’S NOTE: Self Defence is a complete defence to all forms of offences involving the application of force, including murder and manslaughter. Here, the trial judge's instructions to the jury were unclear in this respect. The jury was repeatedly advised that self-defence provided a defence to second degree murder and the manslaughter issue was left hanging. At other points, the jury was instructed that self-defence provided a complete defence. However, the issue came up multiple times, including jury questions, and the instructions were consistently unclear in this same way. The result was a new trial. A jury must clearly and unequivocally be instructed that if they find self-defence, then an acquittal is the result. There case also provides a good overview of self defence.
Pertinent Facts
[6] In early March 2015, Mr. Robertson was unlawfully at large. Subject to a lengthy term of imprisonment, he had been granted statutory release, with a condition that he reside at a Community Residential Facility in Calgary. He left the facility in late February 2015 and went on the run, ending up in Saskatoon. While in Saskatoon, Mr. Robertson supported himself by selling illegal drugs. That is how he met Rocky Genereaux, who was an intravenous [IV] drug user.
[7] On the evening of March 12, 2015, Mr. Robertson and his friend, Nicole Paddy, went to the residence of Melissa Kishayinew and Joseph Littlecrow in Saskatoon. Mr. Genereaux also lived at that residence.
[8] When Mr. Robertson and Ms. Paddy came to the door, Mr. Littlecrow let them in. Mr. Robertson was having some trouble with his cellphone and was engaged in a conversation with someone from the cellular service provider when he entered the house.
[10] A short time later, after sharing a marijuana joint with Mr. Littlecrow, Mr. Robertson went into Mr. Genereaux’s bedroom. An altercation occurred, during the course of which Mr. Robertson stabbed Mr. Genereaux in the abdomen. Mr. Robertson fled the residence, knife in hand. Mr. Genereaux died from the stab wound.
[12] Mr. Robertson’s trial took place in June 2016. At trial, he testified that he had met Mr. Genereaux about three days prior to March 12, 2015, and knew him to be an IV drug user. Mr. Robertson had a pay-as-you-go cellphone that he was using to facilitate his drug trafficking. He said he had previously left the cellphone at Ms. Kishayinew’s residence and when he went back to retrieve it on March 12, 2015, Mr. Genereaux had it in his bedroom. Mr. Robertson testified that he took the phone from Mr. Genereaux but, a short time later, found it was not working, even though he had just purchased a new pay-as-you-go card for it. He said he suspected that Mr. Genereaux might have tampered with the “chip” in the phone and went back to the residence to see if that was the case.
[13] Mr. Robertson testified that, after sharing a marijuana joint with Mr. Littlecrow, he went into Mr. Genereaux’s bedroom to confront him about the phone “chip”. He said that Mr. Genereaux became agitated and then produced a hypodermic needle with the uncovered tip visible. Mr. Robertson testified that he responded by pulling out a knife he was carrying, at which point Mr. Genereaux claimed to have HIV. Hearing this, Mr. Robertson said he took a step back and Mr. Genereaux lunged toward him with the needle. Mr. Robertson said he stuck his knife out, instinctively, and Mr. Genereaux fell backwards onto the bed. Mr. Robertson then fled the house. He testified that, initially, he did not think he had stabbed Mr. Genereaux.
Standard of Review for Jury Instructions
[27] The standard of review applicable when an appellant alleges that a trial judge made errors in providing legal instruction to a jury was succinctly summarized by this Court in R v Naistus, 2019 SKCA 4:
[21] [The appellate] Court must adopt a functional approach when reviewing a jury charge, the purpose of which is to ensure that the jury was properly—not perfectly—instructed (R v Jacquard, 1997 CanLII 374 (SCC), [1997] 1 SCR 314 at paras 32 and 62; R v Daley, 2007 SCC 53, [2007] 3 SCR 523). Acting on this foundational principle, appellate courts must examine the whole of the jury’s instructions to assess whether they achieve their purpose, namely, to equip the trier of fact with the tools necessary to make the findings required in the case at hand. As this suggests, the Court cannot examine a single piece of a jury charge in isolation from the rest of the charge or from what has occurred in the trial. Matters such as the evidence adduced by the parties, the theories and submissions of the parties, and the parties’ suggestions and objections, if any, about the content of the jury charge are all material to the question of whether a jury charge functionally achieved its purpose (R v Jacquard at paras 33–36; R v Daley at para 58; Thériault v The Queen, 1981 CanLII 180 (SCC), [1981] 1 SCR 336 at 343–344; R v Royz, 2009 SCC 13 at para 3, [2009] 1 SCR 423); so too are the language, style and format of the jury charge chosen by the trial judge to convey his or her instructions to the jury (R v Daleyat para 30).
[28] In R v Calnen, 2019 SCC 6 at para 8, 430 DLR (4th) 471, Moldaver J., writing for the majority, said that the “functional approach” requires an appellate court to consider “whether the charge as a whole enabled the trier of fact to decide the case according to the law and the evidence”.
The Baxter Instruction - No Error Here, But
[37] Mr. Robertson contends that, in framing the scope of reasonableness under s. 34(1)(c), the trial judge was required to instruct the jury that a person acting in self-defence is not required to “weigh to a nicety” the amount of force required to repel an attack. That phrase comes from the Ontario Court of Appeal’s decision in Baxter.
[40] To begin, I do not read Cunha, Krasniqi, or Hope, either individually or collectively, as standing for the proposition that a Baxter instruction is a mandatory component of the instruction under s. 34(1)(c). In Cunha, the Ontario Court of Appeal correctly noted that “in considering the reasonableness of the defendant’s use of defensive force, the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection” (at para 7), and appeared to agree that a Baxter instruction can assist in conveying that message to a jury. But nowhere in that decision did the Court say that a Baxter instruction is mandatory. In both Krasniqi and Hope, the Ontario Court of Appeal said exactly the opposite of what Mr. Robertson contends regarding the “mandatory” nature of a Baxter instruction. This position was summarized in Hope, where Epstein J.A., writing for the Court, said:
[93] A Baxter instruction is required to convey that a person responding to a reasonably apprehended attack cannot be expected to “weigh to a nicety, the exact measure of defensive action”: Baxter, at p. 111; Krasniqi, at para. 95. As this court explained in Krasniqi, at para. 96, it is the message in the Baxter instruction which must be brought home to the jury rather than a specific incantation. Jurisprudence has made it clear that, standing on its own, a failure to give a Baxter instruction is not fatal to a charge on self-defence: see e.g. Krasniqi, at paras. 96-99: R. v. Scotney, 2011 ONCA 251, 277 C.C.C. (3d) 186, at paras. 34-38. (Emphasis added)
[43] I conclude, from all of this, that a Baxter instruction is not, and has never been, an absolute requirement of proper jury instruction on the issue of self-defence. Although a Baxter instruction may still be helpful to a jury in determining whether defensive actions are reasonable within the meaning of s. 34(1)(c), such an instruction is arguably of less importance under the current self-defence provisions. This is because proportionality between the force used by the person acting defensively and the nature of the force or threat being repelled is only one factor to be considered in determining whether defensive actions are reasonable, rather than being an essential element of the defence, as was the case under the former provisions.
[46] In this case, the trial judge’s instruction on self-defence contained no wording that mirrored a Baxter instruction. But, in the circumstances, such wording was not required. I say that for a number of reasons.
Misdirection Regarding Crown's Failure to Disprove Self Defence
[57] Self-defence is not a partial defence to charges such as murder and manslaughter; it is a complete defence. A person acting in lawful self-defence within the meaning of s. 34 of the Criminal Code is entitled to an acquittal where that defence is made out. This is because where lawful self-defence exists, the Crown will have failed to establish the “unlawful act” element of culpable homicide, as required by s. 222(5)(a) of the Criminal Code.
[58] In this case, if Mr. Robertson acted in lawful self-defence, he was entitled to an outright acquittal. It goes without saying that the trial judge was required to instruct the jury to that effect. The concern raised in relation to this question is whether the trial judge provided instruction that was sufficiently clear about the verdict the jury was required to reach if it concluded that the Crown had failed to disprove self-defence.
[The following incomplete instruction is representative of the rest that the Court of Appeal found wanted. Essentially, the trial judge failed to take self-defence all the way to an acquittal of all charges instead of the charged second degree murder] [64] The trial judge followed that instruction by referring to the verdict the jury would be required to return if self-defence was made out. In that respect, he said:
If you believe the testimony of Michael Robertson and his actions constitute self-defence, as I will explain that concept to you, then you must find him not guilty of second degree murder. However, even if you do not believe the testimony of Michael Robertson, if it leaves you with a reasonable doubt about whether his actions constitute self-defence, then you must find him not guilty of second degree murder, as I explain the issue of self-defence to you.
Even if the testimony of Michael Robertson does not raise a reasonable doubt about the issue of self-defence, if after considering all the evidence on self-defence as I have explained that concept to you, you’re not satisfied beyond a reasonable doubt of his guilt, you must acquit. (Emphasis added)
[65] This was clearly an inconsistent statement of the law. One version was correct, the other was materially incomplete. The trial judge was required to convey to the jury that if it believed (or had a reasonable doubt about whether) Mr. Robertson’s actions constituted lawful self-defence, he was entitled to an outright acquittal, not just an acquittal on the charge of second degree murder. The difference is significant, of course, because manslaughter is an offence included in second degree murder, by virtue of s. 234 of the Criminal Code. As I will demonstrate, this inconsistent messaging about the verdict that must result if the Crown failed to disprove self-defence continued throughout the charge.
[84] As can be seen, the trial judge repeatedly provided inconsistent and confusing instructions about the verdict that must flow from a finding that self-defence had not been disproved. In my view, this misdirection constitutes a legal error that requires intervention by this Court. I reach this conclusion for a number of reasons.
[85] First, the trial judge’s misstatement about the nature of the verdict that must result if self-defence was made out (i.e., finding Mr. Robertson not guilty of second degree murder) was not an isolated event. It pervaded the entire instruction on the question of self-defence. In fact, the trial judge stated to the jury, no less than six times during the course of the charge, that self-defence entitled Mr. Robertson to an acquittal on second degree murder and only twice said that it entitled him to an outright acquittal.
[86] Second, at the conclusion of his discussion on self-defence, the trial judge did not clearly state to the jurors that, if they found self-defence not to have been disproved by the Crown, they were required to return a verdict of not guilty and did not need to deliberate further. Instead, he moved directly to discussion of the mens rearequirement for second degree murder.
[87] Third, after deliberating for a period of time, the jury asked a question about the three requirements for self-defence. This makes it apparent that the jurors required some assistance in sorting through the issue. In response to that question, the trial judge once again incorrectly stated the law regarding the verdict the jury was required to return if self-defence had not been disproved.
[89] Fifth, the jury’s second set of questions relating to the point in time at which it was to assess Mr. Robertson’s state of mind clearly raised a concern for the trial judge. He recognized that there may have been a live issue about whether the jury’s question related to the consideration of self-defence or to the consideration of the mens rea requirement for second degree murder. Rather than clarifying the issue, the trial judge provided only a very generic answer.
[90] I recognize that, during closing submissions, counsel for Mr. Robertson mentioned on several occasions that, if the Crown failed to disprove self-defence, Mr. Robertson was entitled to an acquittal. I would not give much weight to this factor, however, as the trial judge’s charge to the jury included a clear instruction that the jury was to accept the law as the trial judge explained it, “without question”. This, in my view, attenuated any impact counsel’s closing address may have had.
[92] In the end, I am satisfied that the appeal must be allowed. Where an appellate court is satisfied that a jury was misdirected on a question of law, the Criminal Code dictates that the appeal must be allowed unless the Crown can establish that the error occasioned no substantial wrong or miscarriage of justice (see s. 686(1)(b)(iii)): R v Jaw, 2009 SCC 42, [2009] 3 SCR 26; R v Bouchard, 2013 ONCA 791, 305 CCC (3d) 240, affirmed 2014 SCC 64, [2014] 3 SCR 283.
[93] In this case, the misdirection that resulted from the trial judge’s misstatements on the issue of self-defence was potentially significant. The trial judge’s error was pervasive and repeated at critical junctures in his instructions. It could well have confused the jury about the verdict it was required to return if self-defence was not disproved by the Crown. Moreover, this is not a case where the curative proviso in s. 686(1)(b)(iii) can be applied because it cannot be said that the error was so trivial or harmless that it could not have affected the verdict. The trial judge’s misstatements were errors that were central to the overall determination of whether or not Mr. Robertson’s guilt had been proven. The Crown’s case was not so overwhelming as to establish that verdict would necessarily have been the same absent the error.
R v Hussein (SKPC)
[February 14, 2020] – Charter s.8 - Confidential Informants and Reasonable Grounds for a Search Warrant – 2020 SKPC 8 [F.M. Daunt Prov. J.]
AUTHOR’S NOTE: This case involves the application of R v Debot to information from a Confidential Informant reproduced in an Information to Obtain. Here, the police acted rashly and failed to corroborate any of the information provided except by searching through police records. The result was a number of Charter infractions and an exclusion of all evidence.
Pertinent Facts
[3] Shortly before 9:00 a.m. on April 3, 2019, Constable Jonathan Wilde received a tip from a confidential source that an “unknown black male is selling crack from Louisa Dorion’s place” and that Louisa Dorion lives in block “C” of Tamaron Square. Constable Wilde had been involved in a search of a previous residence of Louisa Dorion. That search yielded cash, a digital scale, “drug packaging material,” and 32.6 grams of crack cocaine. On April 3, 2019, Constable Wilde checked CPIC and learned Ms. Dorion was subject to release conditions, including a residence clause. Her apartment number at Tamaron Square was specified in her undertaking. His investigation complete, Constable Wilde quickly assembled a search team. Constable MacDonald was called in to work early. Constable Wilde briefed him, as well as Constable Chester and Constable Williams.
[4] While Constable Wilde prepared the Information to Obtain a Search Warrant [ITO], Constable Chester went to Tamaron Square and spoke to the building manager. He obtained a key to the apartment, in case a warrant was issued. Constable Wilde presented the ITO to a justice of the peace and the warrant was issued at 9:37 a.m. At 10:00 a.m., the four members of the search team lined up in the hallway outside of Apartment 108C. The officers attempted a no-knock entry. (Although Constable Chester testified there was a knock, no other witness mentioned this, and I do not accept his evidence on this point).
[5] Constable MacDonald, at the front of the “stack,” tried the key provided by the building manager, but it failed to open the door. While he was crouched down, fumbling with the lock, the door was opened from the inside. Mr. Hussein stood there with a piece of pizza in his hand, looking shocked at the sight of several police officers gathered outside the door. While the police announced “Police, search warrant,” Constable MacDonald walked Mr. Hussein backwards down the hallway and forced him down to the kitchen floor in a move described as an “awkward bear hug.” Constable Wilde assisted Constable MacDonald in handcuffing Mr. Hussein. Constable MacDonald “patted down” Mr. Hussein and discovered $250.00, an Alberta driver’s licence, and a bag of crack cocaine in his pockets. These items were seized.
The Law: Search Warrants
[8] A search is reasonable if it is authorized by law, the law itself is reasonable, and the manner of search is reasonable (R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265). The Crown contends the searches of the apartment and Mr. Hussein’s person were authorized by the search warrant and by the police power of search incident to arrest. Defence contends the warrant was issued without reasonable grounds. It is therefore invalid and Mr. Hussein’s section 8 right to be secure against unreasonable search or seizure has been violated.
[9] Apart from the cell phone, the evidence relied on by the Crown was seized from Mr. Hussein’s person during a search incident to arrest. Defence contends the arrest was also unlawful, being based on the same grounds used to issue the warrant. It therefore violated Mr. Hussein’s right to be free from arbitrary detention. A detention is not arbitrary if it is authorized by law, the law itself is reasonable, and the manner of detention is reasonable. The detention cannot exceed the scope of the lawful authority (R v Gonzales, 2017 ONCA 543, 354 CCC (3d) 572 [Gonzales]; R v Mann, 2004 SCC 52, 187 Man R (2d) 1 [Mann]; R v Grant, 2009 SCC 32, 245 CCC (3d) 1 [Grant]). The power of arrest contained in section 495 of the Criminal Code requires the police to possess reasonable grounds to believe the accused has committed or is about to commit an indictable offence. If the police arrested Mr. Hussein without reasonable grounds, or his arrest was otherwise unlawful, then his section 9 right not to be arbitrarily detained or imprisoned has been violated.
[11] When a confidential informer provides a tip to police, a justice considering authorizing a search must ask herself three questions:
1. Is the information compelling?
2. Is the informer a credible source?
3. Did the police sufficiently corroborate the information? (R v Debot, 1989 CanLII 13 (SCC), [1989], 2 SCR 1140 [Debot])
The justice must consider the “totality of the circumstances” and not treat these issues as separate tests. Strengths in one area may compensate for weakness in another. (Debot; R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 [Garofoli]). As Sopinka J. states in Garofoli at para 68:
(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.
The reviewing judge, with the benefit of hindsight, must be careful not to include information discovered after the fact to bolster the evidence contained in the ITO. Sopinka continues:(iii) The results of a search cannot, ex post facto, provide evidence of the reliability of the information.
[12] Keeping those criteria in mind, the test on review is not whether the reviewing judge would have issued the warrant. The standard of review is whether the issuing justice, acting judicially, could have issued the warrant based on “reliable evidence that might reasonably be believed” (R v Araujo, 2000 SCC 65).
Application to the Particular ITO
[13] Constable Wilde had been a police officer for about five years and a drug investigator for 14 months when he prepared the ITO. The ITO comprises 26 paragraphs, all of which are “boilerplate” clauses, many of which are irrelevant to this investigation, except the following paragraphs:
- a) Informant “A” has provided confidential information to Cst. Wilde[1] 15 times since December 2018. Informant “A” has been used to obtain two judicial authorization [sic]. Information from Informant “A” has resulted in charges being laid under Controlled Drug [sic] and Substances Act and the Criminal Code. Informant Informant [sic] “A” is providing information for the [sic] financial compensation, but has not been provided any finical [sic] compensation for this information.
… .
- On January 30, 2019 myself and members of ISET executed a CDSA search warrant on Louisa Dorion’s residence of 1082 8th Street East for an unknown black male. Abdishakur Shil and Louisa Dorion were arrested and charged with possession for the purpose of trafficking crack cocaine. I was designated the exhibit officer for the search and as a result i [sic] seized the following: a. $1,480.00 in Canadian Currency; b. Functioning digital scale; c. Drug packaging material; and d. 32.6 grams of crack cocaine.
- On April 3, 2019 I spoke with Informant “A”. Informant “A” told me: a. An unknown black male is selling crack from Louisa Dorion’s place; b. Louisa Dorion lives in block “C” of Tamron [sic] Square.
- On April 3, 2019 I ran Louisa Dorion on CPIC, which showed her to be on an undertaking for possession for the purpose of trafficking. Dorion’s condition’s [sic] state she is to reside at block “C” 108 1401 28th Street East, Prince Albert, Saskatchewan.
[14] Paragraph 7, quoted above, includes this boilerplate preamble:
- In this Information to obtain, I make reference to information provided to police officers by a Confidential Informant, and referred to as Informant “A”. I know the identity of this informant. All information provided, unless otherwise stated, is first-hand information, and I am not aware of any time where this Informant provided information that was false....
[15] There is no Exhibit “A,” redacted or otherwise. “First-hand information” is not defined in the document.
[17] First, it is highly unlikely that the informant used the term “unknown black male.” People do not talk like that. Rather, “unknown black male” is police-speak for whatever the informant did say. At best, it is a paraphrase. At worst, it is a sanitized version of a racial epithet. Certainly, a racist informant in this context is not credible, as any observations made would be filtered through a lens of stereotypes and biases. The issuing justice was not privy to the words the informant used. Rather, the justice received only Constable’s Wilde’s impression of the informer’s allegation.
[18] Second, this person is not willing to testify in a court of law. Confidential informers enjoy a special privilege in our system. Their identity is jealously protected because they are crucial to the detection and enforcement of drug offences. However, as noted in R v Lewis (1998), 1998 CanLII 7116 (ON CA), 122 CCC (3d) 481 (Ont CA), cited with approval in R v Pavlik, 2019 SKCA 107 [Pavlik], “The risk of false allegations is particularly significant when the tipster is shielded by an absolute and impenetrable anonymity”. In assessing the reliability of the tip, the issuing justice knows only that this person is not prepared to swear to the truth of the statement, whatever that statement was. A person might not want to testify for many reasons. In this document, no reason is given. This does nothing to ensure the credibility or reliability of the informer. Certainly, fabrication remains a distinct possibility, especially when no consequences flow from a falsehood.
[19] Furthermore, the absence of detail in the tip undermines the claim of first-hand knowledge. The information is so vague, it could not be within the personal knowledge of the informant, despite the Paragraph 7 default position, “first-hand information”. Informant “A” did not know this person’s name, not even a nickname, could give no description of him, and did not know the apartment number or even which floor it was on.
[20] The tip itself lacks specificity. It is indistinguishable from mere rumour or gossip. It describes no specific transaction, past, present, or future. While a justice could infer from the use of the present tense “is selling,” that the information is current, a justice applying the correct test could not find the tip to be credible, reliable, or compelling. To have confidence in the reliability of the tip, the issuing justice would need details such as how long this “selling” has been transpiring, amounts or frequency of transactions, how this person communicated with his customers or advertised his wares. A reliable tip might include details about the habits of the occupants of the apartment, a description of their clothing or appearance, and information about the source of the informer’s knowledge beyond the boilerplate “first-hand information.”
[21] Garofoli requires the issuing justice to look for indicia of the informer’s reliability, including information about past performance. In this case, the justice could not find the tip to be reliable based on the sparse information about the informant’s credibility contained in paragraph 7 of the ITO. This informant had a relationship with the police of four months at most. The tipster is motivated by financial gain. He or she refuses to testify. Apart from these facts, the issuing justice had no information that might shed light on this person’s credibility and reliability. ...The ITO does not allow the issuing justice to make an independent assessment of the credibility or reliability of Informant “A”.
[22] The tip was not credible and far short of compelling, so corroboration was crucial before a warrant could be properly issued in this case. Unfortunately, the tip was not corroborated. Regarding the relevance of the previous search at Ms. Dorion’s former residence, the information given is sparse. It is impossible to determine the strength of the case against Ms. Dorion. The paragraph includes no evidence to indicate whether Ms. Dorion was aware of these items, or what her involvement might have been in any offence. Paragraph 10 contains no information about the “unknown black male” in that case, other than his name. Furthermore, before applying for a search warrant in this case, Constable Wilde did not investigate Abdishakur Shil’s current location to determine whether he might be the “unknown black male” in the April 3rdtip.
[24] In the quest for corroboration, the prior search of Louisa Dorion’s previous residence is of little value in assessing this new allegation about a possibly different person in a different home at a different time.[2] Police made no attempt to discover anything current to corroborate this informer’s tip. They did not investigate at all.
[25] A single, uncorroborated tip from an informer of recent acquaintance is wholly inadequate to ground an invasion of privacy into a person’s home. One sentence from Garofoli tends to be overlooked in these analyses, but it bears repeating: “[E]vidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds”. Here, apart from the informer’s tip, police sought no further material evidence....
[27] Defence filed several cases in support of their position: R v Williams, 2019 ONCJ 708, R v Morrison, 2015 ONSC 4453, R v Gilmour, 2017 ABQB 735, R v Uppal, 2017 ABQB 373, R v McKay, 2017 SKPC 53 [McKay], and R v Veilleux (21-May-2019), Prince Albert, Information 991068710 (Sask Prov Ct). In all those cases, police had more specific information than in this case, yet warrants were found invalid, or reasonable grounds not established.
[29] In this case, I find the Information to Obtain does not disclose reliable evidence that might reasonably be believed, and the warrant is invalid on its face, being issued without reasonable grounds...
Related s.9 Charter Violation
[37] In addition, because the warrant was invalid, the police were not lawfully on the premises, rendering the subsequent arrest unlawful. The fact that Mr. Hussein opened the door does not alter the reality that the police were trespassers. The door was opened in response to Constable MacDonald trying to unlock it from the outside. The police certainly were not invited into the residence. Observations of Mr. Hussein’s race and gender were gathered in violation of his privacy rights. Even if that is incorrect, I find no reasonable grounds existed, even with the observation that the person who opened the door had dark skin.
[38] The arrest being invalid, the search incident to that arrest was not lawful. The arrest violated section 9 of the Charter, and the subsequent search of Mr. Hussein’s person violated section 8. Neither the arrest nor the subsequent search of Mr. Hussein’s person was “authorized by law”.
Section 24(2) Analysis
Seriousness of the Charter-infringing State Conduct
[42] While violating Mr. Hussein’s rights, the police also violated Louisa Dorion’s rights. Police acted on an informer’s tip about someone else committing an offence. The tip did not allege Ms. Dorion committed a crime herself or participated in any way in the activities of the “unknown black male”. Although charges against her in this case were stayed by the Crown, the fact her home was raided, and she also was arrested without warrant and without reasonable grounds exacerbates the seriousness of the state conduct in this case.
[44] Further troubling is the evidence that ISET routinely arrests everyone they find in a residence without really considering whether those arrests are justified or necessary. If this evidence is admitted despite the Charter breaches, the police may receive the message that the Court condones routine breaches of the right to liberty. Rather, they need to know that a tip from an informer is the beginning, not the end, of an investigation....
[46] The breaches are serious and systemic. Pavlik, McKay and Veilleux are all Prince Albert cases where evidence was excluded after ISET conducted searches based on an informant’s tip. The grounds for the warrant and for the arrest were paper-thin. The entry into the apartment, although not the worst this Court has seen, was unannounced and violent. The law in this area is not new. Debot was decided in 1989, Garofoli in 1990. Subsequent cases have restated the same test for the sufficiency of an arrest or search warrant based on an informer’s tip. Our local police, especially ISET, being a specialized unit, should know that one vague uncorroborated tip cannot provide grounds for either a search warrant or a warrantless arrest. This case shows either an ignorance of Charter standards, or a wilful disregard for them. Either way, the police cannot be said to be acting in good faith. This aggravates the seriousness of the breach.
Impact of the Breaches on the Accused's Charter Rights
[48] The violations impacted Mr. Hussein’s rights to liberty and privacy. Both rights are fundamental to our way of life. Mr. Hussein was in a private home, minding his own business, eating a piece of pizza, when he was taken to the ground, searched, arrested, and taken into custody, the most serious restriction on liberty our law allows. He was arrested on April 3, 2019, and not released from custody until April 18, 2019. He has been on restrictive conditions since his release, including a clause that he submit to warrantless searches of his person and vehicle....
[49] The impact on Mr. Hussein’s Charter-protected interests was profound. This factor favours exclusion of the evidence.
Conclusion
[51] Here, the breaches are serious and systemic, the impact on the accused great, and society’s interest in adjudication on the merits only modest. On balance, I find admission of the evidence would bring the administration of justice into disrepute. All items seized on April 3, 2019 are excluded from evidence.
