This week’s top three summaries: R v Stipo, 2019 ONCA 3, R v Morrison, 2019 SCC 15, and R v Miller, 2019 BCCA 78.
R. v. Stipo (ONCA)
[Jan 7/19] S.7 Charter - Disclosure: Drug Recognition Experts Rolling Logs, CVs etc. - Certiorari and the Third Party Record Holder - 2019 ONCA 3 [Reasons by David Watt J.A., David M. Paciocco J.A. and J. MacFarland J.A. Concurring]
AUTHOR’S NOTE: The primary issue resolved by this case it that DRE rolling logs of past tests and how they compared to subsequent blood testing are first party disclosure. However, there is also useful general discussion of prior experience and how it is obviously relevant to current reliability. The logic of the conclusions about this topic may have application to other areas where defence is seeking disclosure. Some obvious examples would be sniffer-dog cases, border search decisions based on reasonable grounds, pipeline cases (indicia of transportation of drugs),
"Barbara Stipo had a motor vehicle accident. Her Porsche collided with a Toyota Prius." (Para 1)
"Police investigated the accident. An officer charged Ms. Stipo with operating a motor vehicle while her ability to do so was impaired by a drug." (Para 2)
"A drug recognition expert ("DRE") conducted a drug recognition evaluation. The DRE demanded that Ms. Stipo provide a sample of urine. Barbara Stipo complied. Later, a toxicological analysis of Ms. Stipo's urine sample confirmed the presence of seven different drugs." (Para 3)
"As the trial was about to begin before a judge of the Ontario Court of Justice, Ms. Stipo sought disclosure from the Crown of:
i. the training manual the DRE used in his training and used or relied on in his dealings with Ms. Stipo;
ii. a copy of the DRE's rolling log of drug influence evaluations, beginning with his training to obtain certification and continuing until the date of the application, including his dealings with Ms. Stipo and any toxicological corroboration of his analyses;
iii. a copy of the DRE's training record disclosing the results of his training examinations resulting in his certification and any toxicological corroboration of his training examinations; and
iv. an updated copy of the DRE's resume and resume review." (Para 4)
"The Crown only agreed to disclose item i. The trial judge ordered disclosure of items ii-iv." (Para 5)
The Crown and the OPP record holder applied for certiorari and appealed after that (Para 6-8)
"Prior to the application to the trial judge, Crown counsel had disclosed the 2010 version of the Training Manual used to qualify candidates as DREs. The program is administered by the International Association of Chiefs of Police ("IACP")." (Para 19)
"The IACP requires each DRE to maintain a rolling log, a record that documents every evaluation the DRE has administered or observed prior to and after certification. For each evaluation, the rolling log includes:
i. the date of the evaluation;
ii. the name and date of birth of the person evaluated;
iii. the DRE's opinion of the result of the evaluation; and
iv. the results of any toxicological tests completed on any samples provided." (Para 22)
"The IACP requires a DRE candidate to prepare a CV before the candidate has completed field certification training. The CV is to reflect the candidate's training and experience, including some information about the evaluations the candidate has conducted or observed. In an accompanying Commentary, the current version of The International Standards of the Drug Evaluation and Classification Program, a document filed on the hearing of the appeal, the IACP Highway Safety Committee advises:
In order to be accepted as a credible witness, the DRE must be able to document and articulate a body of information concerning training, qualifications, and experience in the field of drug evaluation and classification. Toward this end, candidates are instructed in the importance and proper preparation of a curriculum vitae." (Para 24)
"Each individual DRE is to maintain copies of all drug evaluations, evaluation logs, their CV, certification and recertification progress logs, and certificates." (Para 25)
"To be faithful to the teachings of Awashish, it becomes necessary to consider first whether the remedy sought by the appellants - certiorari with prohibition in aid - could be invoked as a basis on which to set aside the disclosure order made by the trial judge." (Para 38)
In Awashish "The Supreme Court of Canada dismissed the Crown appeal. In doing so, Rowe J., who delivered the judgment of the unanimous and full court, set out several principles concerning the availability of certiorari to review orders made by provincial court judges on pre-trial applications." (Para 45)
"First, extraordinary remedies, among them certiorari, are available to the parties in criminal proceedings only for jurisdictional errors by a provincial court judge: Awashish, at para. 20." (Para 46)
"Second, in criminal proceedings, jurisdictional errors occur where a provincial court judge
i. fails to observe a mandatory provision of a statute; or
ii. acts in breach of the principles of natural justice.
See, Awashish, at para. 23." (Para 47)
"Third, these strict limitations on the availability of certiorari for parties are to prevent the use of extraordinary remedies as an end-run to circumvent the rule against interlocutory appeals: Awashish, at paras. 10-11." (Para 48)
"Fourth, certiorari is not available to parties to review the conduct of criminal proceedings on the basis of an alleged error of law on the face of the record: Awashish, at para. 16-17." (Para 49)
"Fifth, the scope of review available on certiorari for third parties is somewhat more expansive. After all, third parties do not have rights of appeal, at least in most cases. Thus, in addition to review of jurisdictional errors, a third party may invoke certiorari to challenge an error of law on the face of the record, provided the order has a final and conclusive effect in relation to that third party: Awashish, at para. 12." (Para 50)
"A logical consequence of the authority to determine disclosure issues, more particularly to decide which disclosure regime governs what is sought, is that any alleged error, at least as a general rule, would not amount to a jurisdictional error, but only an error of law in the exercise of jurisdiction. And as we have already seen, unless the error were to amount to a failure to observe a mandatory statutory provision or a breach of the principles of natural justice, the error would fall beyond the reach of certiorari at the instance of any party to the proceedings, but not a third party." (Para 52)
Third Party Record or Disclosure?
"The first party disclosure regime originated in Stinchcombe and was supplemented by duties imposed on the Crown and the investigating police in R. v. McNeil, 2009 SCC 3,  1 S.C.R. 66 (S.C.C.). This requires disclosure of all relevant information upon request. If the Crown refuses disclosure, the Crown bears the burden of establishing that the information is privileged from disclosure or "clearly irrelevant": Gubbins, at para. 29." (Para 79)
"The third party disclosure regime has its genesis in O'Connor and requires an application to the court for records that fall outside the first party disclosure scheme. In these cases, the defence bears the initial burden of showing that the records sought are "likely relevant": Gubbins, at para. 29." (Para 80)
"To determine which disclosure regime controls a disclosure dispute, a court should pose and answer two questions:
- Is the information sought in the possession or control of the prosecuting Crown?
- Is the nature of the information sought such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown?
The answer to the second question will be "yes" if the information sought qualifies as part of the "fruits of the investigation" or as "obviously relevant": Gubbins, at para. 33." (Para 82)
"Where either question yields an affirmative answer, the first party disclosure regime applies, at least in the absence of any applicable statutory regime. In any other case, the third party scheme governs: Gubbins, at para. 33." (Para 83)
"The term "fruits of the investigation" refers to police investigative files, not to operational records or background information. In other words, the term describes information generated or acquired during or as a result of the specific investigation into the charges against the accused. This information may relate to the unfolding of the narrative of material events, the credibility of witnesses or to the reliability of evidence that may form part of the case an accused is required to meet: Gubbins, at para. 22; Jackson, at paras. 92-93." (Para 84)
"In addition to information that falls within the "fruits of the investigation", the police should disclose to the prosecuting Crown any additional information that is "obviously relevant" to an accused's case. The term "obviously relevant" describes information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it relates to the accused's ability to meet the case for the Crown, to raise or advance a defence, or otherwise consider the conduct of the defence. Under McNeil, the police are required to turn this information over to the Crown: Gubbins, at paras. 23 and 36." (Para 85)
"The Supreme Court has stressed that "obviously relevant" does not create a new standard or degree of relevance: Gubbins, at paras. 23 and 36. Nevertheless, the term should be understood with reference to the stage of the process at which the relevance inquiry takes place. Unlike in the second step of the O'Connor application, the court will not have the records before it for examination. Therefore, the relevance of the records must be "obvious" without such examination." (Para 86)
"Third party disclosure requires an accused to apply to a court to obtain that disclosure. The procedure involves two steps. The first requires that the accused satisfy the judge that the record sought is "likely relevant". This burden is met where the accused demonstrates a reasonable possibility that the information sought is logically probative of an issue at trial or the competency of witnesses to testify. Information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence meets this threshold: Gubbins, at para. 27; McNeil, at para. 44; O'Connor, at paras. 21-22." (Para 88)
"Where an accused has demonstrated likely relevance, the documents are produced to the judge for examination and determination of whether, and to what extent, the documents should be disclosed to the defence. This step involves a determination of actual (rather than likely) relevance and a consideration of competing interests: McNeil, at para. 39; Gubbins, at para. 27." (Para 89)
Application to DRE Records
"Unlike in prosecutions for alcohol-impaired operation of a conveyance, the Criminal Code contains no provisions governing the admissibility of the evidence of DREs about drug impairment. The applicable principles are those governing the admissibility of expert opinion evidence. This familiar analysis is divided into two steps:
i. the threshold requirement; and
ii. the cost benefit analysis.
See White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23,  2 S.C.R. 182 (S.C.C.)." (Para 92)
"Section 657.3 of the Criminal Code enacts notice and disclosure requirements when expert opinion evidence will be tendered for admission in a criminal trial. Among other things, s. 657.3(3)(a) requires a party to provide disclosure of a "statement of the qualifications of the proposed witness as an expert" to the other party or parties." (Para 99)
"At the second stage of the admissibility analysis, it is open to defence counsel to endeavour to show that the prejudicial effect of the evidence exceeds its probative value. This analysis focuses on the DRE's administration of the evaluation. It may involve exposing limitations, such as the absence of a standardized approach to weighing the various tests in reaching a determination of drug impairment. Or the failure of the DRE to explain how she drew the inference of drug impairment on the basis of the 12-step evaluation. Cross-examination of the DRE on the admissibility inquiry may expose these deficiencies and persuade the trial judge to exclude the evidence on the basis of the cost benefit analysis." (Para 106)
"When Crown counsel tenders as evidence the opinion of a DRE formed from conducting the 12-step evaluation test, counsel is of necessity asserting that the DRE's conclusion affords reliable evidence of drug impairment of an accused's ability to operate a motor vehicle. It follows that any evidence that has a tendency to cast doubt on the reliability of the DRE's conclusion is relevant. Evidence of the DRE's prior experience in conducting drug recognition evaluations would seem relevant on this basis." (Para 107)
"Apart altogether from the statutory requirements of s. 657.3(3)(a) of the Criminal Code, disclosure of a proposed expert witness' CV has been commonplace. This is because the CV is relevant to the witness's qualifications to give expert opinion evidence and the weight to be assigned to any evidence the witness is permitted to give. Indeed in this case, the DRE's CV seems to have been eventually provided. Recall that the CV is a document in which the IACP requires the DRE to include some of the same details about evaluations as are recorded in the rolling log." (Para 108)
"This is not a case governed by Jackson or Gubbins. In those cases, the accused sought disclosure of historical records relating to the performance of an approved instrument on other occasions. But the material issue in each case had nothing to do with the instrument's performance on other occasions. The material issue in those cases was how the approved instrument worked when it measured Jackson's and Gubbins' blood alcohol levels. Expert evidence confirmed that the historical data could say nothing about that. And expert evidence was necessary because persons of ordinary experience could not establish or negate the link between past performance and present functionality. That is not this case. A trier of fact needs no expert evidence to opine on the relevance of prior experience in assessing current reliability." (Para 109)
"As a result, I am satisfied that the rolling log is relevant material or information for disclosure purposes." (Para 110)
"Recall that in Bingley, the court recognized that despite Parliament's statutory approval of the reliability of the 12-step drug evaluation, an accused retained the right to test the evidence. The trier of fact also retained the ability to critically assess the DRE's conclusion. Among the methods of testing, the court mentioned:
i. cross-examination of the DRE to undermine the conclusion of drug impairment;
ii. evidence of bias;
iii. evidence of failure to conduct the evaluation in accordance with the DRE's training;
iv. questioning the DRE's inference-drawing from observations; and
v. refutation of the conclusion by bodily sample evidence collected under s. 254(3.4)." (Para 116)
"In the end, this issue reduces to whether the rolling log is relevant in challenging the Crown's necessary and implicit claim that the DRE's conclusion on drug impairment is reliable." (Para 117)
"In my view, evidence of the rolling log meets the requirement of "obviously relevant" for the purposes of the first party disclosure regime. I reach this conclusion for four reasons." (Para 118)
One: "The term "obviously relevant" represents a comment on the obvious nature of the relevance of the record in the case. What the term does not do is describe a higher standard or degree of relevance. It describes information that is not within the investigative file but relates to the accused's ability to meet the case for the Crown, to raise a defence, or to make decisions about the conduct of the case for the defence. For disclosure purposes, relevance is not determined by whether the information sought is decisive in the case, rather by its logical relevance. This is not a stringent standard." (Para 120)
Two: "In the law of evidence, we recognize that how an individual acted on prior occasions is relevant in deciding whether or how they acted at a material time. Although admissibility rules rooted in policy considerations may exclude this evidence in some circumstances, as for example when tendered by the Crown, exclusion is not based on lack of relevance. In a similar way, we test the reliability of current information from a confidential informer by examination of the track record (or the absence of a track record) of that informer." (Para 123)
Three: "The DRE's opinion on drug impairment is a link in the Crown's chain of proof. Like other links in that chain, it is open to challenge." (Para 125)
Four: "It is worth notice that disclosure of the CV under s. 657.3(3)(a)(iii) imposes a duty on the proponent of the evidence and a correlative right on the opponent. No application for disclosure is necessary. In short, the CV is "obviously relevant". The rolling log is obviously relevant for the same reasons as the CV. Both documents describe the DRE's experience and are relevant to establishing and delineating the DRE's area of expertise. Therefore, both should be subject to the same, not different disclosure schemes." (Para 130-31)
On a practical note: "I agree with the motion judge that the disclosure prohibition in s. 258.1(2) does not enjoin disclosure of the DRE's anonymized rolling log, which the respondent seeks in this case. In my respectful view, disclosure is permitted under the exception of s. 258.1(2)(a)." (Para 184)
Crown and OPP's appeal was dismissed (Para 194)
R v Morrison (SCC)
[Mar 15/19] Charter s.11(d): Presumption of Innocence - Offences: Child Luring - 2019 SCC 15 [Moldaver J. for the Majority: (Wagner C.J. and Gascon, Côté, Brown, Rowe and Martin JJ. concurring)]
AUTHOR’S NOTE: The offence of child luring received a makeover in this decision. The SCC applied the s.11(d) presumption of innocence to the statutory provisions of this offence and found them wanting. Consequently, a re-interpretation of the offence occurred. The Charter s.11(d) discussion is very useful for other challenges to reverse onus provisions of the Criminal Code.
This author questions the repeated mention by Justice Moldaver of the interpretation on child luring applying to a "sting operation" as if it does not apply other cases of child luring. The finding that the reverse onus provision is unconstitutional naturally flows into the interpretation of the rest of the provisions provided by the SCC. That interpretation will apply to "non-sting" cases as well. The fact that this case was a sting operation is no more relevant than the particular facts of any case - the law is always applied to the facts. However, the law does not change for the facts of an offence. This author expects that despite the unusually strong language of the Court that the interpretation of the remaining provisions is somehow limited to sting operations, there is no basis in law for other courts to find anything different for non-sting operations. The facts will necessarily be different, but the law will be the same.
Another aspect of this case that is confusing is the discussion of "limiting" the defence of honest, but mistaken belief in appropriate age. The Criminal Code provision that allows this was saved by the Court. However, the effect is to transform this offence into something like the current view of the BCCA about breach of recognisance offences: see the discussion in The Toolkit here: R v Zora. A standard of what a reasonably prudent person "would have" done is actually being applied against what the Accused did, or didn't do. In essence, this removes the "honest" but mistaken belief from consideration. Unless the belief is informed by objectively reasonable actions, it will be rejected by the court. One wonders if this is truly justifiable in the factual circumstances: no actual contact between the people occurs - only discussions over the internet.
The rubber will hit the road here when trial courts consider the factual circumstances of cases where "kink" is advertised and responded to by the "undercover" officers. In Morrison, the Court was really quick to reject the fact that the area where the advertisement occurred happened in an online space where participants agreed they were over 18. The essential logic was: this is the Internet where all that was required for this was someone to press a button. Yes, it is really easy to lie in the anonymous space of the internet. What will be the reasonable steps required to determine age? Picture verification? (Pictures can be faked). Questions about age? (That's just pressing a button.). What is the basis upon which we can rationally reject one step and accept another? Now, add to that mixture the milieu of fantasy sexual discussions where at least one of the participants is explicitly looking for someone to lie to them. What are the reasonable steps here? It is easy to condemn the urge to have sexual discussions with underage people. However, these same discussions are not illegal when they occur between consenting adults pretending to be something different. Telling what is a "reasonable step" in those circumstances will be almost entirely dependent on the frame of reference one accepts.
Although not summarised here, the discussion of the challenge to the mandatory minimums jail sentences in these sorts of offences appears to signal the Court's view that all of the mandatory minimums in this area are vulnerable to s.12 Charter challenge (a helpful map is provided by the Court to anyone considering one).
"The respondent, Douglas Morrison, posted an advertisement in the "Casual Encounters" section of Craigslist, with the title "Daddy looking for his little girl - m4w - 45 (Brampton)". A police officer, posing as a 14-year-old girl named "Mia", responded to the ad. In conversations taking place over the span of more than two months, Mr. Morrison invited "Mia" to touch herself sexually and proposed that they meet to engage in sexual activity. These communications led to Mr. Morrison being charged with child luring under s. 172.1(1)(b) of the Code. That provision prohibits communicating, by means of telecommunication, with a person who is, or who the accused believes is, under the age of 16 for the purpose of facilitating the commission of certain designated offences against that person — here, the offence of invitation to sexual touching directed at a person under the age of 16 contrary to s. 152 of the Code." (Para 4)
"At his trial, Mr. Morrison testified that he believed he was communicating with an adult female engaged in roleplay who was determined to stay in character. He also emphasized that the section of Craigslist in which he posted his ad requires users to confirm they are at least 18 years of age. On cross-examination, however, he admitted that this requirement is effectively useless because persons under 18 can get around it simply by clicking a button. He also admitted that he asked "Mia" for a photo to assess her level of attractiveness, not to determine her age." (Para 24)
"Police Constable Hilary Hutchinson responded to the ad, posing as a 14-year-old girl named "Mia". From February 5, 2013 until May 21, 2013, Mr. Morrison and "Mia" exchanged messages, as summarized below." (Para 18)
"In her initial e-mail response to Mr. Morrison's ad, "Mia" said she was 14 years old. The conversation soon became sexual in nature, with Mr. Morrison asking "Mia" what sexual acts she had performed and inviting her to touch herself sexually. The sexualized conversation continued over the following months. At various points, Mr. Morrison suggested to "Mia" that she watch pornography and continued to invite her to touch herself sexually. Mr. Morrison also suggested that "Mia" should skip school and meet him in Brampton, where he would pick her up so they could engage in sexual activity. This meeting did not occur." (Para 19)
"During these conversations, "Mia" repeatedly mentioned that she was 14 years old. She used language consistent with her represented age, including common abbreviations and certain misspellings. She also referred to her classes at school, her mom and grandma, and her recreational activities — playing sports, hanging out with her friends, and listening to music. Her messages were sent before and after school hours on weekdays." (Para 20)
"For the reasons that follow, I would dismiss the Crown's appeal on the s. 172.1(3) issue and Mr. Morrison's crossappeal on the s. 172.1(4) issue. In my view, the presumption under subs. (3) infringes s. 11(d) of the Charter and cannot be saved under s. 1. Further, I agree with the courts below that subs. (4) does not violate s. 7 of the Charter." (Para 11)
"However, unlike the courts below, I do not read the reasonable steps requirement under subs. (4), in the absence of the presumption under subs. (3), as providing an independent pathway to conviction. Instead, it simply bars accused persons from raising, as a defence, that they believed the other person was of legal age when they did not take reasonable steps to ascertain the other person's age."" (Para 12)
Charter s.11(d) - The Right to be Presumed Innocent
"Section 11(d) of the Charter protects the accused's right to be presumed innocent until proven guilty. Before an accused can be convicted of an offence, the trier of fact must be satisfied beyond a reasonable doubt that all of the essential elements of the offence have been proved: see R. v. Vaillancourt,  2 S.C.R. 636, at p. 654. This is one of the principal safeguards for ensuring, so far as possible, that innocent persons are not convicted: see R. v. Lifchus,  3 S.C.R. 320, at para. 13. The right to be presumed innocent is violated by any provision whose effect is to allow for a conviction despite the existence of a reasonable doubt: see Vaillancourt, at pp. 654-56; R. v. St-Onge Lamoureux, 2012 SCC 57,  3 S.C.R. 187, at para. 24." (Para 51)
"Various provisions of the Code establish presumptions whereby proof of one fact is presumed to be proof of one of the essential elements of an offence. Any such presumption will comply with s. 11(d) solely if proof of the substituted fact leads "inexorably" to the existence of the essential element that it replaces: see R. v. Whyte,  2 S.C.R. 3, at pp. 18-19; R. v. Downey,  2 S.C.R. 10, at pp. 29-30; R. v. Audet,  2 S.C.R. 171, at para. 44. Only then will there be no possibility that the substitution might result in the accused being convicted despite the existence of a reasonable doubt: see Audet, at para. 44." (Para 52)
"To be clear, the nexus requirement for demonstrating that a statutory presumption does not offend the presumption of innocence is strict. It is not one of mere "likelihood" or "probability", nor is it one satisfied by a "common sense" or "rational" inference. Rather, this Court's jurisprudence demonstrates that the connection between proof of the substituted fact and the existence of the essential element it replaces must be nothing less than "inexorable". An "inexorable" link is one that necessarily holds true in all cases." (Para 53)
Application of s.11(d) Here
The Code Provision:
172.1(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.
"Given the stringency of this test, for reasons that follow, I am satisfied that the presumption under s. 172.1(3) offends s. 11(d) of the Charter." (Para 54)
"The Crown maintains that the presumption under s. 172.1(3) does not infringe s. 11(d) because the presumption is rebuttable where there is evidence to the contrary. With respect, I cannot agree. A basic fact presumption will infringe s. 11(d) if proof of the basic fact is not capable, in itself, of satisfying the trier of fact beyond a reasonable doubt of the presumed fact. (This is another way of articulating the "inexorable connection" test). The accused's opportunity to raise or identify evidence to the contrary does not resolve or attenuate the s. 11(d) problem created when proof of a basic fact does not lead inexorably to acceptance of the presumed fact. This is because the presumption of innocence requires that the Crown "establi[sh] the guilt of the accused beyond a reasonable doubt before the accused must respond": St-Onge Lamoureux, at para. 24 (emphasis added); see also Downey, at p. 23." (Para 56)
"The mere fact that a representation of age was made to the accused does not lead "inexorably" to the conclusion that the accused believed that representation, even absent evidence to the contrary. To be sure, a trier of fact may well infer, on the evidence, that the accused believed the representation. But that is not the test. The test is whether the connection between the proven fact and the existence of the essential element it replaces is "inexorable". That test is not met here." (Para 57)
"Deception and deliberate misrepresentations are commonplace on the Internet: see R. v. Pengelley, 2010 ONSC 5488, 261 C.C.C. (3d) 93, at para. 17. As the Court of Appeal in this case aptly put it:
There is simply no expectation that representations made during internet conversations about sexual matters will be accurate or that a participant will be honest about his or her personal attributes, including age. Indeed, the expectation is quite the opposite, as true personal identities are often concealed in the course of online communication about sexual matters. [para. 60] (Para 58)
"Here, for example, there is evidence that Mr. Morrison himself made a misrepresentation about his age on the ad he posted: he claimed to be 45 when he was really in his sixties. On the Internet, it may simply be expected that true personal identities are concealed, even when there is no evidence suggesting a misrepresentation in the particular case." (Para. 59)
"It follows that where a representation of age is made online, the trier of fact could still be left with a reasonable doubt at the close of the Crown's case as to whether the accused believed the other person was underage. Yet, despite the trier of fact's own reasonable doubt, the accused's belief that the other person was underage would be deemed to be established beyond a reasonable doubt by virtue of s. 172.1(3) unless the accused did something to rebut the presumption. The presumption in s. 172.1(3) therefore contravenes s. 11(d); it will only be acceptable for an accused to bear a tactical burden to rebut a basic fact presumption where proof of the basic fact leads inexorably to acceptance of the presumed fact." (Para 60)
"In sum, because proof of a representation as to age does not lead inexorably to the existence of the essential element that the accused believed the other person was underage — even absent evidence to the contrary — the presumption under s. 172.1(3) violates the presumption of innocence under s. 11(d) of the Charter." (Para 62)
Although the Crown did not attempt to justify the provision under s.1 of the Charter, the could found as follows in the minimal impairment test:
"Put simply, a less intrusive means of achieving the state's overarching objective would be to do away with the presumption under s. 172.1(3) and instead rely on the prosecution's ability to secure convictions by inviting the trier of fact to find, based on a logical, common sense inference drawn from the evidence, that the accused believed the other person was underage. Indeed, this process of inferential reasoning is not unfamiliar to judges and juries, who engage in this type of reasoning day in and day out." (Para 70)
"In sum, the presumption under s. 172.1(3) infringes s. 11(d) of the Charter, and that infringement cannot be justified under s. 1. I therefore agree with the Court of Appeal that s. 172.1(3) should be declared to be without force or effect pursuant to s. 52(1) of the Constitution Act, 1982." (Para 73)
How Does the Offence of Luring Work Now?
(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
"[I]n my view, the reasonable steps requirement under s. 172.1(4) does not, in the absence of the presumption under s. 172.1(3), provide a second pathway to conviction. Instead, as I will explain, it simply limits a defence." (Para 80)
"Consequently, if the Crown proves beyond a reasonable doubt that the accused did not take reasonable steps, then the trier of fact is precluded from considering the defence that the accused believed the other person to be of legal age. But that does not relieve the Crown of its ultimate burden of proving beyond a reasonable doubt that the accused believed the other person was underage. Thus, to illustrate, if the trier of fact can only conclude from the evidence that the accused was negligent or reckless with regard to the other person's age, the Crown would not have met its burden, and the accused would be entitled to an acquittal. This is because negligence and recklessness are states of mind that do not entail any concrete belief about the other person's age. In short, there is but one pathway to conviction: proof beyond a reasonable doubt that the accused believed the other person was underage. Nothing less will suffice." (Para 83)
"Put simply, as a matter of law, an accused cannot be convicted merely for failing to establish a defence; rather, a conviction will be sustained only where the Crown is able to negate a properly raised defence and show, on the evidence as a whole, that all of the essential elements of the offence in question have been proved beyond a reasonable doubt." (Para 90)
"In the context of a police sting where there is no underage person, the offence of child luring has three essential elements: (1) an intentional communication by means of telecommunication; (2) with a person who the accused believes is under the requisite age; (3) for the purpose of facilitating the commission of a designated offence with respect to that person (see Levigne, at para. 23; Legare, at para. 36). The Crown must prove each of these elements beyond a reasonable doubt: see Legare, at para. 37. The discussion below will focus on the second element." (Para 95)
"To meet this burden, the Crown must show that the accused either (1) believed the other person was underage or (2) was wilfully blind as to whether the other person was underage. The second alternative is legally equivalent to the first." (Para 97)
"In the context of a police sting where there is no underage person, a showing that the accused was merely reckless, rather than wilfully blind, as to whether the other person was underage will not ground a conviction. In a sense, this distinguishes the child luring offence from the offence of sexual assault. The required mens rea for sexual assault is established where the accused is reckless with regard to a lack of consent on the part of the person sexually touched: R. v. Ewanchuk,  1 S.C.R. 330, at para. 42; R. v. J.A., 2011 SCC 28,  2 S.C.R. 440, at para. 24. An accused's awareness that there is a risk that the complainant has not consented to the sexual touching, and the accused's persistence despite this risk, is sufficient to make out the requisite mental element. In the child luring context, however, proving that the accused had a mere awareness of a risk that the other person was underage does not establish that the accused believed the person was underage, which is what s. 172.1(1) requires in the context of a police sting where there is no underage person." (Para 101)
"In my view, the "reasonable steps" that the accused is required to take under subs. (4) are steps that a reasonable person, in the circumstances known to the accused at the time, would take to ascertain the other person's age: see R. v. Dragos, 2012 ONCA 538, 111 O.R. (3d) 481, at paras. 31-32. The reasonable steps requirement therefore has both objective and subjective dimensions: the steps must be objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time. Although the words "in the circumstances known to the accused at the time" do not appear in s. 172.1(4), courts have drawn an analogy between s. 172.1(4) and the requirement under s. 273.2(b) that the accused take "reasonable steps, in the circumstances known to the accused at the time" in order to make out the defence of mistaken belief in consent against a charge of sexual assault: see Dragos, at paras. 39-41. In my view, it is appropriate to incorporate this qualifier because the reasonable steps requirement is highly contextual, and what may qualify as reasonable steps in one case may not in another: see R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230, at para. 37; Dragos, at paras. 32 and 41; Pengelley, at para. 9." (Para 105)
"Without purporting to offer an exhaustive list, reasonable steps may, depending on the circumstances, include: asking for the other person's age and receiving a response that supports that accused's asserted belief; noting the other person's representation, whether solicited or unsolicited, that he or she is of legal age; asking for and receiving proof of identification indicating that the other person is of legal age; asking for and receiving a photograph or reviewing profile pictures suggesting the other person is of legal age; observing conduct or behaviour suggesting the other person is of legal age; choosing to communicate through a website that enforces age restrictions; and, in the case of a personal ad, including language indicating that the accused is looking to speak only with adults. The ultimate question is whether, in the totality of the circumstances, the accused's steps to ascertain the other person's age were sufficient to constitute "reasonable steps" — namely, those that provide information that is reasonably capable of supporting the accused's belief that the other person was of legal age." (Para 112)
"With all this in mind, the defence that the accused believed the other person was of legal age would operate in practice as follows:
(a) First, in order to raise the defence, the accused bears the evidentiary burden of pointing to some evidence from which it may be found that he or she took reasonable steps and honestly believed the other person was of legal age: see Levigne, at para. 32(3). In other words, the accused must show that the defence has an "air of reality".
(b) Second, if the accused discharges his or her evidentiary burden, the defence is left with the trier of fact, and the Crown then bears the persuasive burden of disproving the defence beyond a reasonable doubt: see Levigne, at para. 32(3). However, this does not mean that in order to obtain a conviction, the Crown must prove beyond a reasonable doubt that the accused failed to take reasonable steps.
(c) Third, regardless of whether the defence can be considered, the trier of fact must ultimately determine whether the Crown has proven beyond a reasonable doubt that the accused believed the other person was underage. Thus, at the end of the day, whether the accused is convicted or acquitted does not hinge on whether the accused took reasonable steps; it hinges on whether the Crown can prove culpable belief beyond a reasonable doubt." (Para 116)
Application to the Facts
"If this were a situation in which the Crown's case was weak, an order for a new trial would arguably be unwarranted. But here, the Crown's case was anything but weak. Without commenting further on the matter, I note that the record discloses evidence strongly indicating that a trier of fact could find beyond a reasonable doubt that Mr. Morrison believed "Mia" was underage or was wilfully blind as to whether she was underage. For example, as detailed in paras. 19-24 above:
- "Mia" indicated on numerous occasions that she was 14 years old.
- She used language and discussed topics consistent with her represented age.
- Mr. Morrison offered to pick "Mia" up near her school to engage in sexual activity.
- Upon arrest, Mr. Morrison made several statements that could reasonably be interpreted as demonstrating that he believed "Mia" was underage.
- In cross-examination, Mr. Morrison admitted that the requirement that users must indicate that they are over 18 years old in order to access the relevant section of Craigslist is effectively useless.
- Mr. Morrison further admitted that he asked "Mia" for a photo to assess her level of attractiveness, not to determine her age." (Para 141)
"For these reasons, considerations of fairness — including fairness to the public and the integrity of the justice system — favour a new trial, one that is conducted using a correct legal framework. Accordingly, I would order a new trial." (Para 142)
R v Miller (BCCA)
[Mar 6/19] – Sufficiency of Collateral Consequences to Justify Overturning a Guilty Plea – 2019 BCCA 78 [Reasons of Fitch J.A., with Groberman J.A. and Hunter J.A. Concurring]
AUTHOR’S NOTE: The real significance of this decision is that the collateral consequences of this guilty plea were found to be significant for Mr. Miller when, objectively, they would not have been for many other people. The Supreme Court in Wong set out a modified subjective test for overturning a guilty plea based on collateral consequences and this case shows how that works in practice when the consequence is would not have been significant for many other persons.
"[The Appellant] submits that his plea was not informed by legally relevant collateral consequences, and that the conviction is a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Code. He seeks orders allowing his appeal, setting aside the conviction, and directing a new trial." (Para 1)
"When the plea was entered, the appellant understood that if he was convicted of the offence charged, he would be subject to a 12-month ban on the receipt of disability benefits. In fact, by the operation of provincial legislation in force at the time of the plea, the appellant's conviction triggered a lifetime ban on the receipt of disability assistance. While the legislation was amended about 28 months later and the appellant's eligibility for disability assistance was restored, the unanticipated financial consequences the appellant experienced between the plea and the amendment are significant. He is in a markedly different position now than he thought he would be in when the plea was entered." (Para 2)
"I am satisfied that the unanticipated consequences the appellant has experienced since entering the plea are "legally relevant collateral consequences". I am also satisfied there is a reasonable possibility that the appellant would not have pleaded guilty to the offence charged had he known the full extent of the consequences of doing so." (Para 4)
"When the guilty plea was entered, the appellant was in receipt of monthly disability benefits totaling $1,111.42. The appellant's trial counsel (not counsel on this appeal) advised him that a conviction for "fraud under" would disqualify him from receiving disability benefits for a period of 12 months. That advice was incorrect. In fact, under the version of s. 14(1) of the Employment and Assistance for Persons with Disabilities Act, S.B.C. 2002, c. 41 ("Act") in force at the time of the plea, a conviction for the Code offence of fraud exposed the appellant to a lifetime ban on the receipt of disability benefits." (Para 10)
"The fresh evidence establishes the following facts. Soon after the plea was entered and a conviction registered, the appellant learned, contrary to his understanding at the time of the plea, that his conviction triggered a lifetime ban on eligibility for disability benefits pursuant to s. 14(1) of the Act. He immediately took steps to review the Ministry's interpretation and application of the legislation that gave rise to the imposition of the lifetime ban." (Para 17)
"The appellant's avenues for internal redress were exhausted in April 2014. His lifetime ban was confirmed. As the appellant's efforts to challenge the ban were unsuccessful, he is obliged to repay the $13,303.46 he received in R&A benefits." (Para 20)
"In July 2014, the appellant began the process of applying for hardship benefits. He received hardship benefits in the amount of $906.42 per month from September 2014 to July 2015." (Para 21)
"On August 1, 2015, the legislation was amended. Section 14, the provision that mandated imposition of the lifetime ban, was repealed. The amending legislation applies retrospectively to anyone previously made the subject of a lifetime ban. When the amendments came into force, the appellant's disability benefits were restored. He is currently in receipt of benefits totalling $1,205.42 per month." (Para 22)
The Governing Principles
"The appeal was adjourned pending release of the judgment in Wong which establishes the following governing principles:
 . . . for a plea to be informed, an accused must be aware of the criminal consequences of the plea as well as the legally relevant collateral consequences. A legally relevant collateral consequence is one which bears on sufficiently serious legal interests of the accused. . . .
 In our view, the accused should be required to establish subjective prejudice. Meaning, accused persons who seek to withdraw their guilty plea on the basis that they were unaware of legally relevant consequences at the time of the plea must file an affidavit establishing a reasonable possibility that they would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions. To assess the veracity of that claim, courts can look to objective, contemporaneous evidence. The inquiry is therefore subjective to the accused, but allows for an objective assessment of the credibility of the accused's subjective claim.
 We agree that the accused must first show that he or she was unaware of a legally relevant collateral consequence at the time of pleading guilty, and endorse a broad approach to evaluating the relevance of a collateral consequence in the assessment of whether a guilty plea was sufficiently informed. We also agree that a legally relevant collateral consequence will typically be state-imposed, flow from conviction or sentence, and impact serious interests of the accused. And, like our colleague, we do not see it as necessary to define the full scope of legally relevant collateral consequences nor the characteristics of such consequences for the purposes of this appeal. . . ." (Para 25)
"The principles developed in Wong are to the end of determining whether a miscarriage of justice has occurred when a guilty plea has been entered by a person who is uninformed of the full extent of the consequences that will flow from that plea. In this context, the unfairness that gives rise to a miscarriage of justice lies in the fact that: (1) the accused made an uninformed decision that triggered an unknown and unanticipated collateral consequence; (2) the consequence in issue is "legally relevant" in the sense that it is state-imposed, flows from the conviction, and impacts the "sufficiently serious" interests of the accused; and (3) there is a reasonable possibility that the accused would have proceeded differently had he or she been armed with knowledge of the legally relevant consequence. The accused has the onus of establishing subjective prejudice. While the inquiry is subjective to the accused, it allows for an objective assessment of the credibility of the accused's subjective claim: Wong at para. 6. When these criteria are met, the process failure and unfairness that result must generally be remedied by setting aside the guilty plea and restoring the accused to his or her pre-plea position." (Para 26)
Application to the Facts
"To summarize, the appellant reasonably thought that he would be out-of-pocket about $2,400 as a consequence of his guilty plea, conviction and the imposition of a one-year ban on receipt of disability benefits. Instead, he finds himself in markedly different circumstances. He owes the Ministry $13,303.46. In addition, because his regular benefits were not reinstated until August 2015, he is out-of-pocket at least an additional $2,400 for the period between May 2014 and August 2015." (Para 38)
"When the appellant asserts in his affidavit that he would not have pleaded guilty to the offence of fraud under the Code had he known of "all the financial consequences" such a plea would entail, I understand him to be referring to the unanticipated financial consequences he has experienced both before and after May 2014." (Para 39)
"I turn now to consider whether the amounts of money involved are too trivial or insignificant to be regarded as "legally relevant consequences." In my view, the significance of the "expectation gap" that lies at the heart of the appellant's contention that his plea was uninformed and, thus, invalid, must also take account of his personal circumstances. The appellant has long suffered from mental health challenges. His treatment needs are significant. He struggles to find affordable, permanent housing. The appellant clearly regarded the lost amounts as significant, as would any similarly-placed person. The Court should recognize them as such." (Para 44)
"While the inquiry is subjective in nature, the appellant's claim must be carefully scrutinized against the available objective evidence to test its veracity against a standard of reasonable possibility: Wong at para. 26. With this direction in mind, I accept there is a reasonable possibility that the appellant would have proceeded differently had he known of the full consequences that would in fact flow from his guilty plea. The importance of the financial benefits the appellant unexpectedly lost as a consequence of his guilty plea should not be underestimated. His circumstances as a person with disabilities who struggles to find housing and make ends meet cannot be ignored." (Para 46)
"Had the appellant pleaded guilty to the offence of supplying false or misleading information to the Ministry under s. 22(1) of the Act, he would have been exposed to a 12-month ban on the receipt of disability benefits in addition to a fine, a period of imprisonment, and an order to repay the amount unlawfully obtained. There is a reasonable possibility that, had he known of the full extent of the financial consequences he would suffer, the appellant would have instructed his counsel to negotiate with the Crown a plea of guilty to that offence rather than to an offence under the Code. It is not necessary to show that the Crown would have agreed to this proposal. As the majority stated in Wong:
 . . . And third, the accused need not speculate on how other participants in the justice system would have proceeded [(dissenting reasons at para. 87)]. Our approach simply requires an accused to state how he or she would have acted differently. Though a condition sought may turn on another party's response — e.g. the Crown's willingness to agree to a joint submission on sentencing — the accused need only state that he or she would have insisted upon such a condition to plead guilty, or else would have proceeded to trial." (Para 49)
"In conclusion, I am satisfied that there is a reasonable possibility that the accused would have proceeded differently had he known of the full consequences of his guilty plea." (Para 48)
Guilty plea set aside and a new trial ordered (Para 50)