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This week’s top three summaries: R v Johnson, 2021 ONCA 257: share #trafficking sentence, R v Webber, 2021 NSCA 35: #jurisdiction & #276 app, and R v Husain, 2021 ONSC 2900: #11(b) by 2 days.
R v Johnson, 2021 ONCA 257
[April 27, 2021] Sentencing: Share Drug Trafficking [Reasons by Alexandra Hoy J.A. with David Watt and I.V.B. Nordheimer JJ.A. concurring]
AUTHOR’S NOTE: Sentencing for hard drug trafficking is often an exercise in determining drug quantum, sophistication of the enterprise, and other related factors. In Alberta particularly, start-point sentences can range from 3 years (cocaine, methamphetamine), to 4.5 years (wholesale trafficking: cocaine/methamphetamine), to 5 years (heroin), to 9 years (fentanyl wholesale trafficking [SCC leave granted - R v Felix]). This case presents an exception to the usual Ontario range of sentence of trafficking on the basis that drugs were simply shared, not sold for profit. This case presents counsel with an opportunity on sentence in certain circumstances that can be brought close to this situation to significantly lower potential sentences. Defence counsel would do well to keep in mind that the Crown has to prove aggravating factors beyond a reasonable doubt (ie. sale not share). The facts of this case involve a person who was clearly a trafficker in one substance, sharing another with people, which through an unfortunate chain of events ultimately led to their death. Moreover, the case applies the Ontario R v Sharma striking down of CSO legislation which is also on appeal to the SCC.
Facts
[1] Mr. Johnson was convicted of trafficking cocaine, possession of marijuana for the purpose of trafficking, and possession of proceeds of crime exceeding $5000. He was sentenced to six months’ imprisonment on each count, to be served concurrently, less credit for pre-trial custody, followed by one year of probation.
[3] In January 2014, two young women ended a night of partying and using drugs at an impromptu gathering at Mr. Johnson’s apartment. Mr. Johnson was 27 years of age at the time. At the women’s request, he shared a small amount of cocaine with them. They did not pay for the cocaine.
[4] The women slept at his apartment, as did his friends Rene Jean Moneus and Nicolas Adeyemi. In the early hours of the morning, the women were unconscious and non-responsive. Mr. Johnson frantically sought help and they were rushed to the hospital. Mr. Adeyemi fled.
[5] Tragically, one of the women died as a result of combined heroin and ethanol toxicity. The other, whose adverse reaction was also caused by ingesting heroin, recovered.
[6] Mr. Johnson was panicked and scared. He did not tell the EMS responders about any drug use and, when first questioned by police, did not mention that the women had ingested cocaine. However, a short time later Mr. Johnson provided a video statement to police and admitted giving the women marijuana and a small amount of cocaine. He also told them he had marijuana at his apartment and directed them to where they would find it. The police searched Mr. Johnson’s apartment. They found 800 grams of marijuana, two and one-half grams of heroin, the remnants of a small quantity of cocaine, and $2,000 in cash.
[7] The police also found approximately $54,830 which Mr. Johnson had hidden in the trunk of Mr. Moneus’ car before giving his video statement to the police, in the hope that the police would not find it and take it. Mr. Johnson admitted at trial that this was money he had saved over the three years he had been selling marijuana.
[8] Mr. Johnson consented to the forfeiture of the $56,830 found by the police.
[9] Mr. Johnson was charged with several offences, including possession of heroin for the purpose of trafficking, and manslaughter. He pled not guilty to all counts but, at the conclusion of the Crown’s case, he conceded that the Crown had met its onus on the offences of trafficking cocaine, possession of marijuana for the purpose of trafficking, and possession of proceeds. He candidly admitted that he started selling marijuana in 2011 to supplement his income. However, he testified that he neither dealt nor used heroin and had no knowledge of heroin in his apartment.
[10] The trial judge was left in a state of reasonable doubt by Mr. Johnson’s evidence that he had no knowledge of the heroin in his apartment and she acquitted him of the charge of possession of heroin for the purpose of trafficking. The trial judge considered that, possibly, the heroin belonged to Mr. Adeyemi. She was also left in a state of reasonable doubt on the manslaughter charge. She was not convinced that the heroin found in Mr. Johnson’s apartment, which was not in a form readily consumable by snorting, had any nexus to the heroin ingested by the two women.
Sentencing Submissions
[13] Citing R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), and R. v. Butters, 2017 ONCA 973, the Crown submitted that the range for this offence was six months to two years, less a day, with one-off transactions involving small amounts of cocaine, other mitigating factors and rehabilitation prospects at the low end, and transactions involving larger quantities of narcotics, where the offender has a criminal record, at the higher end.
Reasons for Sentence
[17] She noted that he was a first offender who was 27 years of age at the time of the offences. He was born in Liberia and was an only child who was orphaned at the age of 14 because both of his parents had been killed in the Liberian civil war. At 16 years of age, he came to Canada as a refugee. He did well, completed high school, and trained and worked as a welder. In 2010, he started his own business. He started selling marijuana in 2011 to supplement his income as his business developed. He was still selling marijuana at the time of the incident giving rise to the charges against him but stopped doing so in 2014. By the time of sentencing, his business had developed to the point it had over 40 contracts and employed 36 people. He provided multiple positive character references.
Analysis
Error in Applying Woolcock Range
[29] I agree that the trial judge erred in principle in applying the sentencing range in Woolcock, urged by the Crown, to this case of share trafficking, and that that error had an impact on the sentence imposed.
[30] Mr. Woolcock was found in possession of 5.3 grams of crack cocaine. Police had received information that Mr. Woolcock was dealing crack cocaine from a residence and observed several instances of individuals visiting the residence for a short time. One of the individuals observed leaving the residence was arrested and found to be in possession of 0.5 grams of cocaine. During a search of Mr. Woolcock’s residence, the police found 5.3 grams of crack cocaine.
[31] In the context of that case - a case involving selling crack cocaine for profit at street level - this court, at para. 15, said that:
The range for this type of offence appears to be 6 months to 2 years less a day…However, many of the cases that fall at the higher end of this range involved either larger quantities of narcotics or offences committed while the accused was still on probation for a similar offence. Those circumstances (sic) to not exist here.
[32] This court reduced the sentence imposed by the sentencing judge from two years less a day to 15 months.
[35] Ranges of sentence are only guidelines, and there may well be circumstances where a sentence for share trafficking within the range identified in Woolcock is appropriate. However, the trial judge did not engage in that analysis. As this court has said, it is an error to treat guidelines as constituting a de facto minimum sentence: R. v. Jacko, 2010 ONCA 452, 101 O.R. (3d) 1, at para. 82. The trial judge’s error in principle was to accept the range in Woolcock as generally applicable to share trafficking.
Failure to Give Effect to First Offender Status
[36] I agree with counsel for Mr. Johnson that the trial judge also erred in principle in reducing the weight she accorded to the fact that Mr. Johnson was a first-time offender because he admitted he had been trafficking in marijuana for several years before the incident that brought him before the court. This was the first time that Mr. Johnson had been before the court. Aside from the charges below, Mr. Johnson had never been charged, let alone convicted, of any offences in relation to trafficking marijuana. He was a first offender and was entitled to be treated as such for sentencing: R. v. Barclay, 2018 ONCA 114, at para. 44. Other than his admissions at trial, there is no evidence of his involvement in the “drug world,” as the trial judge put it.
[37] Moreover, the evidence before the trial judge did not suggest Mr. Johnson’s history selling marijuana was relevant to specific deterrence. The trial judge stated that she was “confident that Mr. Johnson can and will fully rehabilitate himself.” A criminal record is relevant in sentencing to the extent that it “rebuts good character and because of what it tells the trial judge and society about the need for specific deterrence, the chances of successful rehabilitation, and the likelihood of recidivism”: R. v. Taylor (2004), 2004 CanLII 7199 (ON CA), 189 O.A.C. 388 (C.A.), at para. 39.
[38] In my view, this error led the trial judge to give undue weight to general deterrence and to impose a harsher sentence for all the offences than she otherwise would have. Individual deterrence and rehabilitation are the primary objectives in sentencing a first offender: R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (C.A.), at p. 9.
[39] Given this conclusion, it is unnecessary to address Mr. Johnson’s further arguments that the sentences imposed for the marijuana charges were excessive and that his admissions at trial should have been treated as a plea.
A Fit and Appropriate Sentence
[41] In R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal granted, [2020] S.C.C.A. No. 311, this court struck down ss. 742(c) and 742(e)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, which eliminated the availability of conditional sentences for drug trafficking.
[42] In my view, a six-month conditional sentence of imprisonment for each of the charges, to be served in the community, concurrently, and followed by one year of probation, is a fit sentence, having regard to all the circumstances of the offence and the offender. Indeed, had this option been available to the trial judge, I suspect she would have availed herself of it. This will permit Mr. Johnson to continue the productive and pro-social life that he has built over the last five years and best ensure the future of the employees of his business in this time of wide-scale economic disruption caused by the COVID-19 pandemic. Disposition
[43] I would grant leave to appeal sentence, allow the appeal, quash Mr. Johnson’s sentence of six months’ incarceration (concurrent) and impose a six-month conditional sentence on each count, to be served concurrently, followed by one year of probation...
R v Webber, 2021 NSCA 35
[April 27, 2021] Jurisdiction: Indictment Alleges Offence in Another Province, 276: Probative Value of Sexual Violation by Another Person [Reasons by David P.S. Farrar J.A., with Beveridge and Beaton JJ.A. concurring]
AUTHOR’S NOTE: It is difficult to persuade courts these days to allow examination of a sexual assault complainant on prior sexual acts, particularly those with other people besides the accused. There are very legitimate purposes to such examinations in certain circumstances, but there is the risk of inappropriate reasoning by juries that often pushes judges to keep this evidence out. The balance has skewed in favour of exclusion. This case provides a useful exemplar where such evidence is more probative than prejudicial.
Another interesting issue arose about jurisdiction in this matter. The Crown alleged an offence committed in another jurisdiction and particularised that province on the Indictment. This error was fatal. This is a useful case to have for reference if this happens in another matter.
Introduction and Background
[1] On September 23, 2018, after trial before a jury with Justice Christa M. Brothers presiding, the appellant, Renee Allison Webber, was convicted of advertising to provide sexual services for consideration (s. 286.4 of the Criminal Code); receiving a financial or material benefit resulting from the commission of an offence (s. 279.02(2) of the Criminal Code); procuring a person under the age of 18 years (s. 286.3(2) of the Criminal Code); sexual exploitation (s. 279.011(1) of the Criminal Code); and touching for a sexual purpose (s. 153(1)(a) of the Criminal Code).
[2] At the commencement of trial, Ms. Webber pled guilty to common assault (s. 266 of the Criminal Code).
[6] The complainant, M.M.S., provided a statement to police in May of 2016. She said she was the victim of criminal activity at the hands of Ms. Webber and Ms. Webber’s then-boyfriend, Kyle Pellow. Both Ms. Webber and Mr. Pellow were charged with human trafficking and numerous associated offences.
[8] On May 2, 2018, Mr. Pellow re-elected to be tried in the Provincial Court. He pled guilty to three offences: trafficking a person under 18 years of age, advertising for sexual services, and breach of a recognizance. He was sentenced to six years custody following a joint recommendation.
[9] On September 4, 2018, the Crown filed a substitute indictment against Ms. Webber which eliminated any reference to Mr. Pellow (the Indictment)....
[11] The Crown presented evidence from September 4 to September 14, 2018, calling six witnesses. During M.M.S.’s testimony, the defence was unsuccessful in making an application under s. 276 of the Criminal Code. As a result, Ms. Webber’s counsel was prohibited from cross-examining on two instances of sexual contact between M.M.S. and Mr. Pellow.
[12] At the close of the Crown’s case, the defence applied for a stay of proceedings on the sexual assault (s. 271) and sexual touching (s. 153(1)(a)) charges, which were alleged to have occurred in New Brunswick, arguing a lack of territorial jurisdiction. The trial judge stayed the sexual assault charge, but concluded that the Court had jurisdiction to try the sexual touching charge.
Facts of the Case
[24] M.M.S. went from being a grade 10 high school student to a sex-trade worker operating, at various times, in Nova Scotia, New Brunswick and Ontario.
[25] M.M.S. explained that in September 2015 she dropped out of high school, was evicted from her home by her mother, and moved in with a friend named Julia.
[26] Julia was older than M.M.S. and worked as an escort. When M.M.S. moved in, Julia introduced her to the business. She showed M.M.S. how to post advertisements for sex work on a website called “Backpage”. She brought M.M.S. along on one of her calls and shared some of the earnings with her. M.M.S. described being surprised she could have sex with somebody and get money for it.
[27] M.M.S. said she and Julia attended a party at Ms. Webber’s home. At that time, she was introduced to Ms. Webber’s then-boyfriend, Mr. Pellow. Following the party, M.M.S. went on car drives with Mr. Pellow.
[28] M.M.S. was invited to accompany Julia and Mr. Pellow on a trip to New Brunswick. Her understanding was that Mr. Pellow would get Julia a hotel room in Moncton for sex work. M.M.S. joined on the trip. She said that Julia posted ads for sexual services on Backpage and that she (M.M.S.) was probably advertised in the Backpage ads as well, including by way of text and photographs, but that she did not engage in any sex work herself.
[29] M.M.S. could not remember when she next had contact with Ms. Webber after the party. She described taking a drive with Ms. Webber, when she related the following conversation which she said prompted her to move out of Julia’s residence and into Ms. Webber’s home...:
Q. Okay. Well, what was your understanding of what you were going to do when you were living at Renee Webber's house?
A. She had mentioned to me that -- well, she had said to me that she was a stripper and that Kyle was kind of like, protection, I guess. Like, that was what he -- she put it in like -- said that we were going to be like a team, like, I was going to be an escort and I was going to be sleeping with these men, and that she was going to be a stripper, and that he was going to be, like, protection and that. They were going to help me get into school, and just everything that I had wanted for my life, they said that they could help and -- help me get to.
Q.
Did she tell you what you would get from having sex with these men?
A. Just -- not really anything, just that she -- they would help me get into school and that it would help me have a family and have a good life.
[30] M.M.S. left Julia’s residence the same day and moved into Ms. Webber’s basement, where she resided along with Ms. Webber’s eldest son and one of his friends. Ms. Webber lived upstairs with her second son and her daughter.
[32] M.M.S. stayed at Mr. Pellow’s mother’s house for about a week, during that time Mr. Pellow drove her to calls with men which had been arranged by him via Backpage ads. She explained: “I met with these men and had sex with them for money”. After she was done, she gave the money to Mr. Pellow. M.M.S. testified that after a week of such work she returned to Ms. Webber’s house.
[33] After returning to live with Ms. Webber, M.M.S. travelled to Moncton on weekends. She said she went to Moncton more than once with Mr. Pellow, once with only Ms. Webber, and once with both Mr. Pellow and Ms. Webber.
[35] M.M.S. testified that when she went to Moncton alone with Ms. Webber, she also had sex with men for money. She said that she and Ms. Webber advertised their services together as a sexual duo on Backpage. When it came time for intercourse, M.M.S. had sex with the man while Ms. Webber, either naked or in her bra and underwear, sat and watched. M.M.S. testified that Ms. Webber received the money.
[36] Regarding the trip to Moncton with both Ms. Webber and Mr. Pellow, M.M.S. testified about a bachelor party which Mr. Pellow arranged. She and Ms. Webber attended, and just walked around and talked to the men while dressed in their bras and underwear.
[37] Later that same night in Moncton, M.M.S. said she was forced to engage in non-consensual unprotected oral and vaginal sex with both Ms. Webber and Mr. Pellow.
[38] M.M.S. also described a trip she took to Toronto, Ontario, with Mr. Pellow. She testified that Ms. Webber told her Mr. Pellow was leaving for Toronto in half an hour, and she was to pack her bag. Ms. Webber drove her to a parking lot where she got into a rental car with Mr. Pellow and two other sex workers and they drove to a Super 8 Motel in Mississauga, Ontario.
[39] While in Toronto, M.M.S. engaged in sex work at the motel arranged through Backpage ads, and performed sex work in a spa/massage parlour. The money she earned on the trip was given to Mr. Pellow. Upon returning to Nova Scotia, M.M.S. continued to reside with Ms. Webber.
[40] Finally, M.M.S. described attending with Ms. Webber at the Chebucto Inn in Halifax, also for the purpose of having sex with men for money. Calls were set up by M.M.S., via Backpage ads.
[41] M.M.S. testified that she stopped engaging in sex work in late November 2015. She said there was an understanding that if she was dating Ms. Webber’s son she would not continue in the escort business.
[42] At some point in early 2016 she moved out of Ms. Webber’s home, broke up with Ms. Webber’s son, and moved back in with her mother. She also resumed hanging out with Julia and returned to working in the sex trade.
[43] M.M.S. went to police in May of 2016 after being confronted by Ms. Webber while walking down the street....
[44] Ms. Webber admitted to slapping M.M.S. on the face in May of 2016. She explained that M.M.S. had been dating her son, and that M.M.S. had been harassing him since they broke up. Ms. Webber plead guilty to common assault as a result of this incident.
[46] Ms. Webber described meeting M.M.S. through her children around November 2015. She testified that M.M.S. lived at her home from November until the end of December 2015. Her son asked if M.M.S. could stay with them because M.M.S. was kicked out of her home and had had an argument with a friend she had been staying with.
[48] Ms. Webber denied M.M.S.’s allegation M.M.S. was prevented from leaving her home. Ms. Webber said it was no secret that M.M.S. was staying with her.
[49] Ms. Webber denied having any knowledge of or connection to prostitution, saying that M.M.S.’s allegations were false.
[50] Ms. Webber testified that she was unaware that M.M.S. had a relationship with Mr. Pellow, and was unaware that M.M.S. had been engaging in paid sex work while living at her home. She was also unaware of the association between Mr. Pellow and Julia.
[51] She denied dropping M.M.S. off at parking lots, denied going to Moncton with Mr. Pellow and M.M.S., denied going to Moncton alone with M.M.S., and denied sexually touching M.M.S.
[52] She explained that she had a credit card and when she rented vehicles and hotel rooms to assist Mr. Pellow, she assumed it was legitimate.
Analysis
Issue 1: Did the trial judge err in applying the law of provincial territorial jurisdiction?
[59] The Indictment filed by the Crown at the commencement of the trial alleged two offences occurred in Moncton, New Brunswick:
7. AND FURTHER that she at Moncton, New Brunswick, at the same time aforesaid, being a person in a relationship with [M.M.S.], a young person, that is exploitive of [M.M.S.], did for a sexual purpose directly touch a part of [M.M.S.], contrary to Section 153(1)(a) of the Criminal Code.
8. AND FURTHER that she at Moncton, New Brunswick, at the same time aforesaid, did unlawfully commit a sexual assault on [M.M.S.], contrary to Section 271 of the Criminal Code. [Emphasis added]
[60] Prior to the close of the Crown’s case, defence counsel sought a stay of proceedings of both New Brunswick charges for lack of territorial jurisdiction, relying on s. 478(1) of the Criminal Code:
Offence committed entirely in one province
478 (1) Subject to this Act, a court in a province shall not try an offence committed entirely in another province.
[61] The defence argued that neither the s. 271 charge nor the s. 153(1)(a) charge could be tried in Nova Scotia in light of s. 478(1).
[63] The Crown argued that jurisdiction existed for the sexual assault charge because of a real and substantial link with Nova Scotia. Jurisdiction was said to exist for the s. 153(1)(a) offence because the element of exploitation occurred in Nova Scotia.
[68] Respectfully, the trial judge erred in finding the Nova Scotia courts had jurisdiction over the s. 153(1)(a) charge.
[69] There is a broad basis for claiming jurisdiction over continuing and/or inter-provincial offences under s. 476 of the Code. The Ontario Court of Appeal in R. v. Bigelow, (1982) 1982 CanLII 2046 (ON CA), 37 O.R. (2d) 304, succinctly set out the test for claiming territorial jurisdiction under s. 476:
11. …The test in reality has become whether any element of the offence has occurred in the province claiming jurisdiction…
[70] When an indictment or an information charges an offence within the geographic boundaries of a court’s home province or territory, territorial jurisdiction is claimed.
[71] The problem with the trial judge’s reasoning in the present case is that the Indictment never claimed jurisdiction on behalf of Nova Scotia.
[72] When an indictment or an information charges an offence outside the provincial or territorial boundaries of the court, there is no territorial jurisdiction to preside over the case. As McQuaid J. (as he then was) explained in R. v. Davis, [1979] 23 Nfld. & P.E.I.R. 422:
[4] Strangely, counsel for the appellant made no reference to the fact that on the face of the information the provincial court judge in Prince Edward Island would have no jurisdiction over an offence purported to have been committed at Middleton in the said Province (of New Brunswick). Without amendment, which could have been made at any time prior to conviction, but of which amendment there is no record, the judge was clearly without jurisdiction. [Emphasis added]
[75] Before the trial judge, the Crown argued that Nova Scotia had jurisdiction, citing as authority R. v. Bigelow; R. v. Masoudi, 2016 ONCJ 476; R. v. Patrois, 2016 ONSC 4695; R. v. Hammerbeck, [1993] B.C.J. No. 685 (CA); and R. v. Doer, [1999] M.J. No. 40 (QB). On this appeal, it relies on R. v. Ibeagha, 2019 QCCA 1534, to support its argument that Nova Scotia has territorial jurisdiction.
[76] There is a critical distinction between those decisions and this case. Unlike the present case, the informations or indictments underlying those cases specifically claimed that the offence was committed, at least in part, within the trial court’s territorial jurisdiction.
[81] With respect, the Indictment is not defective on its face. On its face it alleged the offence occurred within the territorial jurisdiction of New Brunswick. It does not allege nor can it be interpreted in such a manner as to confer territorial jurisdiction upon Nova Scotia. If an indictment alleges an offence occurred outside the territorial jurisdiction of the court, and none of the exceptions in the Criminal Code apply, the court has no jurisdiction to adjudicate the proceedings.
[82] Neither party has referred to a reported case where a court has assumed territorial jurisdiction over a Criminal Code offence which was alleged, by way of the wording of the indictment, to have occurred exclusively in a different province.
Issue 3: Did the trial judge err in denying the defence application under s. 276 of the Criminal Code?
[94] During the cross-examination of M.M.S., defence counsel informed the court that he planned to ask M.M.S. about a relationship between herself and Mr. Pellow.
[95] He argued that a s. 276 application was not necessary as he only sought to adduce the evidence in relation to the exercise of control over her. He explained the evidence was not on the issue of consent. The Crown took the position that a s. 276 application was necessary under the circumstances.
[96] The trial judge concluded that s. 276 was applicable and that the defence would have to make an application under that section.
[97] The written s. 276 application identified the evidence sought to be adduced as follows:
Between October 1, 2015 and May 22, 2016 [M.M.S.] engaged in sexual activity in Halifax, Nova Scotia, with Kyle Leslie Pellow, which was exploitative.
[98] The relevance was also identified in the application as follows:
The defence will be asserting that Kyle Leslie Pellow subjected [M.M.S.] to control, direction or influence in part by the instrumentality of his exploitative sexual behaviour.
[100] The defence made it clear the evidence sought to be adduced was for a strictly limited purpose – whether it was Mr. Pellow or Ms. Webber who was exercising control over M.M.S. The defence brief states:
The evidence of prior sexual activity here relates to a strictly limited issue whether it was Kyle Leslie Pellow or Renee Allison Webber who was exercising any control, influence or direction over [M.M.S.] during the timeframe covered by the Indictment.
[101] Defence counsel specifically stated that Ms. Webber would not be advancing consent as a defence to the ss. 271 and 153(1)(a) charges (the offences alleged to have occurred in Moncton). Defence counsel also stressed that the proposed evidence was not being introduced to support either of the impermissible inferences:
It should be noted that the proposed evidence in no way supports either of the impermissible inferences: either that [M.M.S.] was morelikely to have consented when she says that the attack occurred, or that the Moncton sexual assaults occurred; nor that she is less worthy of belief because of the “sexual nature of the activity” with Mr. Pellow: 276(1).
[102] The trial judge denied the s. 276 application....
[103] In reaching this conclusion, the trial judge acknowledged the defence’s willingness to try to minimize any concerns stemming from the evidence by limiting the scope of the cross-examination. She held, nevertheless, it “does not affect my relevance analysis.” She stated:
[72] The concern is that the evidence of a sexual assault by Mr. Pellow, while not explicitly offered to suggest that M.S. is less worthy of belief, is implicitly offered to draw that conclusion. The proposition is that because of the sexual assault, Mr. Pellow had control over the complainant and therefore, when M.S. says the accused had control as well, she is less worthy of belief in relation to that allegation.
[104] Respectfully, the trial judge’s s. 276 decision is in error.
[105] Contrary to the trial judge’s reasoning, the evidence in this case was tendered to support a legitimate defence inference, not the prohibited credibility myth under s. 276(1)(b).
[106] One of the core issues at Ms. Webber’s trial was who exercised control, influence or direction over the complainant. The jury was instructed that control, influence, and direction over the complainant were constituent elements of the offences of procuring under s. 286.3(2), trafficking a person under 18 contrary to s. 279.02. The trial judge also directed the jury to consider evidence of control, direction and influence as relevant to the existence of an exploitative relationship under s. 153(1)(a).
[107] Ms. Webber’s defence to these accusations was twofold: (1) she denied the accusations against her, and (2) she alleged her former co-accused, Kyle Pellow, was the real perpetrator. The theory of the defence was made clear before the Jury:
Rather than being a co-participant in the business of promoting the sexual services of an underage girl, Renee Webber was and remains a co-victim of Mr. Pellow’s emotionally and financially manipulative behaviour.
[108] The defence sought to tender the evidence to show that it was Mr. Pellow who exercised control, influence or direction over the complainant, not Ms. Webber. As defence counsel explained to the trial judge:
…The Crown has led evidence from this particular witness already at this trial, on repeated occasions that Kyle Pellow and Renee Webber presented themselves and acted as a team in terms of controlling and influencing her movements, and this is an incident which counters that narrative being an act of Kyle Pellow alone.
[109] If believed, the s. 276 evidence was probative of the issue of control. It could have established that Mr. Pellow exercised control, influence or direction over the complainant by way of sexual violence and/or intimidation , and it could also establish that he did so separate and apart from Ms. Webber.
[110] Respectfully, the trial judge’s reasoning at paragraph 72 of her decision reflects a misunderstanding as to the scope and bounds of what is permissible under s. 276.
[111] Historically, the prohibition against the second myth in section 276(1)(b) was targeted at the false idea that “unchaste women” are less likely of belief (R. v. Barton, 2019 SCC 33, at ¶ 56).
[112] It prohibited the use of otherwise irrelevant/immaterial evidence of prior sexual activity to attack the general credibility of the complainant. Such an inference is properly prohibited for its archaic, false, and prejudicial reasoning.
[113] The more modern understanding of the second myth is broader, and is no longer limited to inferences arising from a lack of chastity. Evidence of a complainant’s prior sexual activity is inadmissible to suggest that they are less worthy of belief, regardless of whether such sexual activity accords with current social mores. The Court in R. v. Goldfinch, 2019 SCC 38, explained:
45. … However, this Court has held that the second myth is not limited to attitudes towards "unchaste" women (Darrach, at para. 33). Moreover, while sexual activity generally carries less stigma than it once did, complainants continue to be treated as less deserving of belief based on their previous sexual conduct. The notion that some complainants "invite" assault and, by inference, do not deserve protection persists both inside and outside our courtrooms…
[114] However, s. 276 does not create a total bar to the admission of sexual history evidence. The provision remains targeted at the two prohibited myths listed under s. 276(1)(a) and (b).
[115] As recently discussed in R. v. R.V., 2019 SCC 41, it is legally permissible for the defence to use sexual history evidence to rebut material elements of the prosecution’s case. In R.V., the prosecution led evidence suggesting that the complainant’s pregnancy arose from the sexual assault at issue. The defence sought leave under s. 276 to cross-examine the complainant on other sexual activities which might alternatively explain the pregnancy. Justice Karakatsanis reasoned:
44. Section 276(1) sets out an absolute bar against introducing evidence for the purpose of drawing twin-myth inferences. Here, R.V.'s request to challenge the inference that the pregnancy resulted from the alleged assault did not engage the twin myths. As such, the application judge correctly concluded that the cross examination was not barred by s. 276(1).
[116] The same rationale applies here. Ms. Webber sought to challenge the Crown’s assertion that she exercised control, influence or direction over the complainant. This was a valid evidential purpose which was directly relevant to Ms. Webber’s defence.
[117] Again returning to Justice Karakatsanis’ reasoning in R.V., she makes the point that evidence tendered to rebut the Crown-led evidence is admissible:56. The accused's s. 276 application must also identify the relevance of the evidence to be adduced. As a matter of logic, evidence tendered to rebut Crown-led evidence implicating the accused will be relevant to the accused's defence. As noted above, even in the 1982 iteration of s. 276, Parliament carved out an exception for evidence rebutting Crown-led evidence of the complainant's sexual activity or absence thereof.
[118] Recent s. 276 case law in the context of procuring/human trafficking further supports this position. In R. v. Downey, 2018 ONSC 6347, the accused sought leave under s. 276 to cross-examine the complainant in relation to her motives for coming to Sudbury (where the procuring/sex-work allegedly occurred) and her prior knowledge of using websites to advertise escort services. The trial judge concluded that such cross-examination was permissible to challenge the complainant’s version of events:
[58] I agree with the applicants' position that to deprive them of the right to cross-examine the complainant on the advertisement would strip them of the ability to address the complainant's version of the events with direct evidence.…
[60] The applicants' position at trial will be that the complainant came willingly to Sudbury for the explicit purpose of sex work, just as the Crown alleges the applicant Kelly-Ann Downey did, and that she was not tricked into it by the applicant Sherlock Downey.
[61] It would be unfair and a deprivation of the right to make full answer and defence to permit the Crown on the one hand to say that the complainant was lured or tricked into attending Sudbury, and that the Applicants posted the advertisements without the complainant's consent, without, on the other hand, allowing the cross-examination of the complainant on the existence of advertisements which could directly contradict her testimony about her knowledge of the websites in question. [Emphasis added]
[119] In the present case, the s. 276 evidence at issue was relevant to the question of control over the complainant. As in R.V. and Downey, that material issue speaks to a legitimate line of defence reasoning separate and apart from the twin myths. It was permissible for Ms. Webber to call evidence to support her defence by suggesting that the complainant was not being truthful in relation to the control allegation. To hold otherwise would immunize the complainant’s evidence from challenge on an essential element of the offence(s). Section 276 was never intended to preclude such evidence.
[120] I am also of the view the trial judge erred in concluding the evidence was not sufficiently probative:
[66] I have concluded the proposed evidence is not significantly probative. It is difficult to understand how the alleged sexual assault by Mr. Pellow, or the kiss, could raise a reasonable doubt as to the accused’s control over M.S. …
[121] The proposed defence evidence had high probative value on the issue of control.
[122] As Karakatsanis J. explained in R.V.:
62. …Because the answers [to the defence cross-examination questions] had the potential to undermine or confirm important Crown evidence, their probative value was high.
[123] The Crown argues that though the evidence may have been probative of whether Mr. Pellow exercised control over M.M.S., his exercise of control did not prevent Ms. Webber from also having the opportunity to exercise control, direction or influence over her.
[124] I disagree. The s. 276 evidence was unique, because it addressed a form of violent physical/sexual/emotional control.
[125] The proposed evidence under s. 276 offered an example of Mr. Pellow controlling the complainant in Halifax. As defence counsel explained:
And this is further evidence of perhaps more extreme and more intimate -- an instrument of control by sexual abuse in Halifax by Kyle Pellow alone that the jury will, if they know about it, they will appreciate that Renee Webber can't be linked to that, and the jury could evaluate that as significant in terms of whether or not Renee Webber, which is the ultimate issue before them, whether Renee Webber was exercising control, direction or influence over [M.M.S.], or whether the effective control was with Kyle Pellow because of these very extreme kind of behaviours towards her. [Emphasis added]
[126] Had the s. 276 application succeeded, Ms. Webber could have argued that Mr. Pellow was sexually/violently controlling of the complainant, in the absence of Ms. Webber.
[129] It is difficult to reconcile the Crown’s position that on one hand the s. 276 evidence was not significantly probative of control by Kyle Pellow and then, on the other, its argument before the jury that other allegations of sexual impropriety were the “ultimate form” or “ultimate expression” of control by Ms. Webber.
[130] The right to make full answer and defence requires that an accused be permitted to respond to prosecutorial allegations.
[131] Finally, the trial judge erred when she found that the impermissible thinking could “seep into the jury” and not be cured by a limiting instruction...
[132] In R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, Chief Justice Dickson urged trial judges to trust the good sense of the jury and give them all relevant information:
35. In my view, the best way to balance and alleviate these risks is to give the jury all the information, but at the same time give a clear direction as to the limited use they are to make of such information. Rules which put blinders over the eyes of the trier of fact should be avoided except as a last resort. It is preferable to trust the good sense of the jury and to give the jury all relevant information, so long as it is accompanied by a clear instruction in law from the trial judge regarding the extent of its probative value.
[133] The presumed efficacy of such a s. 276 jury instruction should also be factored into a trial judge’s admissibility analysis, to the benefit of the accused. As Justice Doherty explained in R. v. L.S., 2017 ONCA 685:
[96] The risk of juror misuse of evidence of other sexual activity is taken into account by the scheme established under s. 276. Section 276.4 requires that when a trial judge admits evidence of other sexual activity, she must "instruct the jury as to the uses that the jury may and may not make of the evidence". Any consideration of the potential prejudice under s. 276(2) (c) premised on the potential misuse of the evidence by the jurors must take into account that the jurors will be properly instructed in compliance with s. 276.4. [Emphasis added]
[134] The trial judge’s reasoning did not recognize the curative effect of a jury caution in relation to the proposed evidence, nor did she consider this factor in her s. 276 analysis.
Conclusion
[136] The appeal is allowed. I would order a new trial on Counts 1, 3, 4 and 5, and enter a judicial stay on Count 7 of the Indictment.
R v Husain, 2021 ONSC 2900
[April 19, 2021] Charter s.11(b) - Even 2 Days over is Too Much [Justice S. Nakatsuru]
AUTHOR’S NOTE: Sometimes you need a pithy way of saying, "Judge, it doesn't matter that it's just two days over the presumptive ceiling. You should still stay the prosecution." This would be your case to say that with. You could also try, "Justice delayed by two days, is still justice denied." Leave a comment or message on social media with other suggestions.
Overview
[2] Mr. Syed Husain represented himself at trial. At the end of the trial, the trial judge dismissed his application to stay the proceedings on the basis that his right to a trial within a reasonable time had been violated. Originally scheduled for a two-day trial, the trial took place on six different court dates spanning over five months in the Ontario Court of Justice. On this appeal, Mr. Husain says the trial judge got her decision wrong. He appeals his convictions for impaired driving and refusing to provide a breath sample.
[3] R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 targeted complacency in the criminal justice system as an evil that s. 11(b) of the Charter must combat. Complacency must equally be avoided in a trial involving a self-represented accused. However, a layperson trying to navigate the legal system in their defence can pose a challenge to efficiently run trials. The trial judge must ensure that the accused has a fair trial and meaningful access to justice. Sometimes this can take time.
[5] That acknowledged, I find that the trial judge erred in dismissing Mr. Husain’s s. 11(b) claim. Although there was some defence delay, the trial took longer than the 18-month presumptive limit. No exceptional circumstances justified this. A violation of Mr. Husain’s s. 11(b) right occurred.
[8] In this case the total delay from the swearing of the information on April 6, 2018, to December 3, 2019, when the trial judge reserved her decision, was almost 20 months. This was beyond the presumptive ceiling of 18 months for a trial in the Ontario Court of Justice.
Discussion
[18] After subtracting the defence delay, the net delay is 18 months 2 days. [Emphasis Added by PM]
[19] The trial judge found that the evidence would have been completed at least by October 8, 2019. Deference should be afforded to this finding. The trial judge was best placed to make this determination. Moreover, I find it consistent with the record of proceedings. No palpable or overriding error has been pointed to by the respondent to cast doubt on this determination.
[25] First, the fact that Mr. Husain was a self-represented accused does not per se amount to an exceptional circumstance. From the very beginning, the Crown and the court were aware that Mr. Husain would be representing himself. He had never retained counsel. Thus, this situation was expected and foreseen.
[26] Any self-represented accused will require the assistance of the court. Issues of procedure and substance will need to be explained. In a drinking and driving prosecution, the judge must be alert to potential Charter issues even if the accused does not raise them. Flexibility must be shown. The trial may reasonably take longer to complete. None of this is reasonably unforeseen. Moreover, many of the challenges caused by a self-represented accused can be avoided by proper preparation and trial management by the Crown. In my opinion, the fact that an accused is self-represented is not an exceptional circumstance either as a discrete event or complexity: R. v. Kozma, 2017 ABQB 723, at para. 49. Nor is it a new exceptional circumstance to be recognized. As a matter of principle, no greater delay should be tolerated merely because an accused decides to represent themselves at trial.
[28] When the entire history of the proceedings is considered, there were reasons for the delay that Mr. Husain bore no responsibility for. Put another way, if the trial took longer than the original two days scheduled, it was not entirely Mr. Husain’s fault. The trial was scheduled for June 20 and 21, 2019. However, the trial judge was only available for June 20 as she took on the case as an assist court and she had other matters scheduled for June 21. Even on June 20, the trial judge could only sit to 3:45 p.m. given her other engagements. Also, on that day, the Crown had trouble getting the video to play. The case was adjourned to July 19 after only completing the first Crown witness, P.C. Graham, in chief.
[29] On July 19, the trial judge also heard another unrelated matter in the middle of Mr. Husain’s trial. This interrupted Mr. Husain’s trial for over an hour and a half of court time. On that court date, the Crown finished just two witnesses, P.C. Graham and P.C. Ladurantaye. When two further court dates of August 22 and 23 were secured, the trial judge acknowledged that the trial was taking a long time, not just because Mr. Hussain was self-represented but because of the judge’s schedule....
[34] Second, the trial judge erred in characterizing Mr. Husain’s request to recall P.C. Graham as an exceptional circumstance. Since P.C. Niziol was not going to be available at the time in any event, everyone agreed that the time when he was unavailable on August 23 could be filled with recalling P.C. Graham. Thus, this was not a circumstance that caused delay. Moreover, it was not reasonably unavoidable. P.C. Graham had finished his evidence. The Crown’s case was still being heard. Therefore, leave was required to grant Mr. Husain’s request for P.C. Graham to be recalled. The Crown did not oppose but acceded Mr. Husain’s request. The Crown did not seek any waiver of s. 11(b) from Mr. Husain before agreeing to this litigation event: R. v. Wookey, 2021 ONCA 68, 154 O.R. (3d) 145, at para. 71.
[40] Undoubtedly this trial took longer than originally estimated. This can be an exceptional circumstance in some situations: R. v. Majeed, 2017 ONSC 3554, at paras. 23–27, affirmed 2019 ONCA 422. In my opinion, this is not the case here for a couple of reasons.
[41] First, where the accused is unrepresented, a greater onus lies on the Crown to make realistic estimates of trial time when setting dates. This includes taking into consideration the likelihood that the trial might take longer than usual, given factors such as potential trial issues that might unexpectedly arise, the fact that an unrepresented accused will not have the experience or training to run a focused and efficient trial, and the need for a trial judge to be more involved in explaining matters to the accused. When the trial estimate is significantly off, both the Crown and court bear greater responsibility. In addition, both the Crown and the court must be more active in not only in ensuring a fair trial for the accused, but also in ensuring that the trial is completed in a timely manner. There is no doubt that Mr. Husain did not make it easier given the manner in which he conducted the trial and how he needed or was given extended explanations by the trial judge. However, equally important was their obligation to ensure that the case stayed on track. Both did a commendable job in trying to do that. However, as the trial went on, greater emphasis should have been placed on this. It was quite apparent that time was being lost for one reason or another.
[42] Second, the actual trial estimate here was not significantly off base. Two days of trial time was estimated. This was reasonable. When the history of the proceedings is considered in its entirety, the key reason for not completing the trial within that approximate time frame is not the unexpected and unavoidable delay of a trial going longer than it was supposed to, despite a good faith estimation of time. This trial could have been completed if not within the two full trial dates originally scheduled, then certainly within a short period of time afterwards. What is striking is the amount of time lost due to inefficiencies in the conduct of the trial that were the court and the Crown’s responsibility.
Conclusion
[46] On appeal, the Crown forcefully argued that the administration of justice would be brought into disrepute if Mr. Husain was granted the benefit of a stay as a result of a two-day delay beyond the Jordan ceiling.
[47] I do not agree. Whether it be two days or two months over the presumptive ceiling, a stay is required. [Emphasis by PM]
[48] In Jordan at para. 83, the majority explained that in setting the presumptive ceiling, they factored in tolerance for institutional delay and the inherent needs and increased complexity of most cases. A significant acceptance for the inevitable delays inherent in the litigation process was accounted for when the 18 and 30-month ceilings were calculated. Moreover, the court provided for reasonable flexibility in the s. 11(b) analysis in making provisions for defence delay and exceptional circumstances. Thus, no greater tolerance or flexibility is required. At first blush it may seem overly rigid and arbitrary to find a s. 11(b) violation when the ceiling is surpassed by just a small amount of time. However, when viewed in its proper context, there is nothing inappropriate about issuing a stay in these circumstances. Simply, it is a matter of staying true to the principle of the s. 11(b) analysis. In Jordan, the court said this at para. 56:
We also make this observation about the presumptive ceiling. It is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable. The public should expect that most cases can and should be resolved before reaching the ceiling.
[49] This approach is consistent with the proactive nature of the s. 11(b) analytical framework. As the court in Charleyemphasized at paras. 78-79, the presumptive ceilings enhance analytical simplicity and foster constructive incentive in reacting to potential delay problems. The facts of this case are a good example of how this could have made a difference. On August 23, when the proposed October 8 continuation was offered, rather than jumping to premature conclusions about whether the delay amounted to defence delay, the Crown and the court should have made further efforts to select a continuation date within the 18-month presumptive ceiling. Given the busy nature of the Ontario Court of Justice, I recognize that securing an earlier date may not have been easy. But s. 11(b) should not be only respected when it is easy to do so.
[50] The Ontario Court of Appeal used this bright-line approach to the presumptive ceiling in R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609. The court granted the Crown appeal of the trial judge’s stay of proceedings due to unreasonable delay. For two of the respondents, the Ontario Court of Appeal calculated the delay to be 17 months and 29.5 days – just under the presumptive ceiling of 18 months. Despite that, the court did not hesitate to find that a stay was not warranted. This decision was upheld on a further appeal to the Supreme Court of Canada in brief oral reasons: R. v. Yusuf, 2021 SCC 2.
[52] Mr. Husain’s appeal is granted. The charges are stayed.
[53] Given my conclusion, it is not necessary to consider Mr. Husain’s remaining grounds of appeal that the trial judge misapprehended the evidence regarding other alleged Charter violations.
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