The Defence Toolkit – November 21, 2020

This week’s top three summaries: R v Baptiste, 2020 ONSC 6823: #selfdefence, R v Josipovic, 2020 ONSC 6300: judicial #jury stand-aside and R v Sakhuja, 2020 ONCJ 484: right to #counsel & #overholding

R v Baptiste, 2020 ONSC 6823

[November 11, 2020] Self-Defence - Shooting someone through the door of your home [Mew J.]

AUTHOR’S NOTE: When your home separates you from your potential assailant, it is quite difficult to meet the requirement of reasonableness in a response of shooting them. In this decision, self-defence won the day in a circumstance of shooting a potential assailant through your exterior door. While the case has a factual history that made the likelihood of assaultive intent on behalf of the deceased likely, in other respects it is difficult to grasp that it is permissible to shoot someone before they have made entry into the home.  The result in this case expands the possible options for defence lawyers claiming self-defence on behalf of their clients.  

Overview

[1] Kenneth Ferrill was killed in the early hours of 2 April 2017 by a single gunshot wound to the torso.

[2] The fatal shot was fired by the defendant Brandon Baptiste from inside his home at Unit 1, 28 Deserontyon Drive, Tyendinaga Mohawk Territory out through a window on the front (and only) door leading into the unit.

[3] As a result of this incident, Mr. Baptiste stands charged with three offences, namely:

a. The second-degree murder of Kenneth Ferrill, contrary to section 235(1) of the Criminal Code of Canada;

b. Without lawful excuse, pointing a firearm (a rifle) at Jennifer Ferrill, contrary to section 87 of the Criminal Code; and ...

[5] The defence called no evidence. However, a three-hour, four-minute videotaped interview of the defendant by Detective Constable Gaston Thibodeau was admitted into evidence (reasons reported at 2020 ONSC 5677 (CanLII)). In addition, certain admissions were made by the defendant pursuant to section 655 of the Criminal Code.

[6] Mr. Baptiste admits that the gun which he used was a JR Carbine rifle. A single ninemillimetre calibre bullet was used. The fired bullet was retrieved from the clothing of Mr. Ferrill. A shell casing was found and recovered by the police on the floor of the entrance hallway inside the unit occupied by Mr. Baptiste.

[7] There was no evidence of more than one shot being fired.

[9] Furthermore, searches of firearms registration records disclose that Brandon Baptiste did not have a licence to possess these firearms.

[10] While not acknowledging commission of the firearms possession charge, the defence does not contest that the evidence supports a finding that each element of that offence has been established.

[11] As a result, a finding of guilt on the third count on the indictment will be recorded.

Crown's Theory

[102] The Crown asserts that Mr. Baptiste shot Mr. Ferrill in anger. Mr. Ferrill did not have a firearm. Nor did Jennifer Ferrill. Anticipating the reliance by Mr. Baptiste on self defence, the Crown refers to paragraph 54 of the recent decision by the Court of Appeal for Ontario in R v. Khill, 2020 ONCA 151 where the Court stated:

Absent a defensive or protective purpose, the rationale for the defence disappears. Vengeance, even if righteous, is blameworthy and cannot be camouflaged as self-defence.

[103] The Crown points to a number of angry emails sent by Mr. Baptiste following the Little Texas incident.

[104] At 2:10 a.m., having sent Sean Anderson a photo of his bitten hand, Mr. Baptiste wrote “Your girlfriend just fucking with me and I hope to God that you know that you’re going to suffer or repercussions from it so good luck” and, a few messages later “you fucking guys think I’m joking but I’m the type of guy to show up at someone’s placement pointman and fuck them right up I don’t give a fuck how big you are”.

The Defence Theory

[115] The defence argues that Mr. Baptiste acted in self defence. He was at home when he saw Kenneth Ferrill get out of his truck with a gun. He armed himself with a rifle and a single bullet which were kept in his home, but not for a dangerous purpose. As he got to the hallway, he saw Mr. Ferrill raise what he believed to be a gun and point it at him. Mr. Baptiste discharged his weapon – accidentally – in the midst of an effort to defend himself from an armed assault from a much larger, very angry man with a firearm.

[116] The Crown’s case is heavily reliant on the statement which Mr. Baptiste gave to DC Thibodeau and on the testimony of Jennifer Ferrill. That testimony was coloured by her rage, fueled in no small measure by her intoxication and perceived injury to her self esteem.

Analysis

[151] Within minutes following the departures from Village Variety, Kenneth Ferrill was on the telephone with either Sherry or Randy Rhode. This call appears to overlap with an incoming call from Chris Ferrill. Then, as already noted, Mr. Ferrill tries to contact Brandon Baptiste. He ended up leaving an audio message on Facebook Messenger. I would describe the tone of Mr. Ferrill’s voice in that message as angry and menacing.

[152] While it is not known what was said between Kenneth Ferrill, Sherry or Randy Rhode, and Chris Ferrill, subsequent texts sent by Chris Ferrill suggest that further activity was planned; “wanna role up on them tonight???”, Chris Ferrill texted and “I’m ready I got my baseball bat says I’ll beat someone retarded with it just let me know I’m up”.

[153] Randy Rhode was also part of the call to action. He called Aaron Ferrill to bring him into the loop.

[154] Within very few more minutes, Mr. Ferrill was deliberately ramming his truck into the back of Mr. Baptiste’s Tahoe outside the front of Mr. Baptiste’s home. Jennifer Ferrill said that they were after Jamie Brant. But if Mr. Baptiste got in the way, he would get it as well.

[155] While Mr. Baptiste thought that the other person in the Ferrill vehicle – presumably Jennifer Ferrill – was driving at the time that the Ferrill vehicle was ramming the Tahoe, I accept Jennifer Ferrill’s evidence that Mr. Ferrill was driving.

[156] Brandon Baptiste had already had an eventful night. He had been confronted by his partner when she found him out with Taylor Billings. He had experienced a physical altercation with Chevy Rhode. He was aware that Kenneth Ferrill had been drawn into an escalating circus of messages and threats.

[157] Mr. Baptiste, was also angry. His exchange of text messages with Sean Anderson and Katie Anderson are indicative of that.

[158] Mr. Baptiste’s account of what happened at Village Variety does not accord with Jennifer Ferrill’s. He recounted Mr. Ferrill standing there with what he described as a “club” accusing Mr. Baptiste of hitting his niece. He figured Mr. Ferrill was going to “wack me with this big stick”.

[159] Regardless of whose version of events is closer to the truth, it seems that Jamie Brant pulled away after Mr. Ferrill leaned into the Tahoe and that this action caused one or both of Jennifer and Kenneth Ferrill to fall to the ground.

[160] After the incident at Village Variety, there was every reason for Mr. Baptiste to be expecting more trouble. He anticipated that Mr. Ferrill would be coming for him. He knew from previous experience that if he did, Mr. Ferrill might not be alone.

[161] Rather than run the risk of Mr. Ferrill seeing the Tahoe parked at his parents’ house, Mr. Baptiste and Mr. Brant went to Deserontyon Drive. Mr. Baptiste drove his mother’s car. Mr. Brant drove the Tahoe.

[162] The telephone records indicate that it was a very few minutes before Kenneth Ferrill and Jennifer Ferrill arrived.

[164] Aside from the physical evidence – the displaced Tahoe, the single bullet hole in the door to the Deserontyon Drive residence, the shell casing on the floor – there are two accounts of what happened during the approximately three minutes that appears to have elapsed between the arrival and departure of the Ferrill vehicle. On the one hand, there is the statement of Mr. Baptiste, given to D.C. Thibodeau a little more than 24 hours after the incident. A statement untested by crossexamination. The other account is that of Jennifer Ferrill, her perspective infused with alcohol and anger. There is good reason to doubt the reliability of each of these accounts.

[165] Mr. Baptiste’s account has him getting back to his residence with Mr. Brant. He is anticipating trouble. Yet he is on the phone to Carla. He has three weapons and plenty of ammunition in his residence. He says that he does not arm himself until he hears the commotion outside and sees Mr. Ferrill with what Mr. Baptiste perceives to be a weapon.

[166] The Crown argues that the way Mr. Baptiste describes how the shooting occurred makes no sense. The Crown asks, rhetorically, would someone like Mr. Baptiste, experienced in using guns, end up doing something like this by accident. He had his finger on the trigger, something that an experienced person would only do if they intended to discharge the weapon. In his demonstration to D.C. Thibodeau, the Crown suggests that Mr. Baptiste has him pointing the gun in different directions. The Crown asks, “what are the odds of a bullet going through the window and striking Mr. Ferrill where it did”, submitting that Mr. Baptiste’s account is simply not true.

[168] I am not persuaded on the evidence that Mr. Baptiste’s discharge of his weapon was accidental. Instead of retreating out of harm’s way and calling 911 (as the Crown suggests he should have), he had come down the stairs from the living area of the house to the entrance hallway. Mr. Ferrill was on the other side of the door, ultimately advancing in Mr. Baptiste’s direction. Mr. Baptiste had a loaded weapon with his finger on the trigger. Under those circumstances, I am satisfied that the discharge of his weapon was not an accident.

[169] Was it self-defence?

[171] Mr. Baptiste submits that the nature of the force or threat faced by him was patent. Mr. Ferrill, he says, was armed with a firearm and was pointing it at Mr. Baptiste.

[174] What I do find, however, is that Mr. Ferrill was angry – very angry - that his behaviour was extremely threatening, and that it is likely that he was carrying a weapon in the form of a stick.

[175] Having regard to section 34(2)(b), I agree with the defence that the use of force by Mr. Ferrill was clearly imminent. While Mr. Baptiste could, perhaps, have retreated further into his house and called 911, as the Crown suggests, realistically, it was more likely, and reasonable in the circumstances, that Mr. Baptiste would respond to the potential use of force by arming himself in order to protect himself and Mr. Brant if needed.

[176] Mr. Baptiste’s role in provoking Mr. Ferrill’s anger was limited. Although Mr. Ferrill left an enraged voicemail message for Mr. Baptiste minutes before he launched his attack at Desorontyon Drive, the principal object of Mr. Ferrill’s anger was Jamie Brant.

[177] In relation to subparagraph (d), while I do not find that Mr. Ferrill used or threatened to use a gun, I do find that he was brandishing a weapon in the form of a stick. And I cannot rule out the possibility that, in the middle of the night, albeit with the benefit of illumination from a single light bulb, and in circumstances of high tension and possibly panic, Mr. Baptiste may have genuinely thought that Mr. Ferrill had a gun.

[57] Section 34(2) directs that, in determining the reasonableness of the accused’s act, the court must consider “the relevant circumstances of the person, the other parties and the act”. This language signals that the reasonableness inquiry in s. 34(1)(c), like the reasonableness inquiry in s. 34(1)(a), blends objective and subjective considerations.

[58] The “relevant circumstances of the accused” in s. 34(2) can include mistaken beliefs held by the accused. If the court has determined, under s. 34(1)(a), the accused believed wrongly, but on reasonable grounds, force was being used or threatened against him, that finding is relevant to, and often an important consideration in, the court’s assessment under s. 34(1)(c) of the reasonableness of “the act in the circumstances”.

[181] While I am not prepared to accept that things unfolded in exactly the manner described by Mr. Baptiste in his interview with D.C. Thibodeau, I do accept that things happened quickly.  The whole transaction, from the arrival of the Ferrills to their departure, occurred in approximately three minutes.  For all of his bravado, I accept that the situation was a threatening one from Mr. Baptiste’s perspective.  Mr. Ferrill had already used force against Mr. Baptiste’s property by using his truck to repeatedly ram Mr. Baptiste’s vehicle.  He had a weapon, even if it was not a gun.  He was not approaching the house for a friendly chat.  He intended to threaten and, quite possibly, to do violence.  Once Mr. Ferrill got inside the Baptiste residence, there would have been no escape for Mr. Baptiste.

[182] Whether Mr. Baptiste raised the gun to his shoulder, took aim and fired, or whether his discharge of the weapon was less precise, I find that the Crown has failed to prove beyond a reasonable doubt that his purpose in discharging his weapon was not to defend himself and Mr. Brant from the use or threat of force, and that his actions were not reasonable in all of the circumstances.

[183] It follows that the Crown has not proved that Mr. Baptiste acted unlawfully when he killed Mr. Ferrill.

[184] I therefore find him not guilty on the charge of second degree murder.

[185] On the charge of pointing a weapon at Jennifer Ferrill, there are obvious concerns about the quality of her evidence.

[186] In R. v. Savich, [1979] A.J. No. 654 (Alta Q.B.), it was held that:

… the gravamen of the offence created by s. 84(1) of the Criminal Code is the menacing or threatening use of a firearm …

[187] It is sufficient that a firearm be pointed in a general way towards the complainant:  R. v. Phillips, 2009 CanLII 2922 (ON SC); R. v. Jakubowych (1968) 1968 CanLII 997 (AB QB), 66 W.W.R. 755 (Alta S.C.); R. v. Minish, [1984] S.J. No. 468 (Q.B.).

[188] Jennifer Ferrill’s account is the only evidence about what happened (other than Mr. Baptiste’s statement).  She says she was initially attracted to what was going on inside the house by the sudden or unexpected illumination of the outdoor light.  But other evidence points to that light having been on at all material times.  She then moved and turned to look inside the house, and it was then that she claims to have seen the firearm pointed at her by Mr. Baptiste.  She testified that she then quickly moved out of the way.

[189] It follows from the findings that I have already made that Mr. Baptiste was in the hallway of his residence and had a gun.  At some point in time, the gun fired a shot through the door which struck Mr. Ferrill, ultimately leading to Mr. Ferrill’s death.  Mr. Baptiste is not, however, charged with pointing a firearm at Mr. Ferrill.  Rather, the charge is of pointing a firearm at Jennifer Ferrill.  I cannot be confident from her evidence that Mr. Baptiste had his gun trained on her.  Indeed, I cannot be confident about where she was at any time that Mr. Baptiste had his weapon raised or pointed at or in the general direction of either of the people outside of his house.

[190] In short, I cannot be satisfied beyond a reasonable doubt that Brandon Baptiste pointed a firearm at Jennifer Ferrill

[191] Even if I am wrong about that, to the extent that Mr. Baptiste may have raised his firearm, he did so in self-defence and therefore, for the purposes of the point firearm charge, with lawful excuse.

[192] I therefore find Mr. Baptiste not guilty on the point firearm charge.

R v Josipovic, 2020 ONSC 6300

[October 19, 2020] Jury Selection - The Judicial Stand-aside [A. J. Goodman J.]

AUTHOR’S NOTE: Some momentum is building in Ontario's Superior Court of Justice behind the notion that the expanded wording in s. 633 that accompanied the elimination of peremptory challenges has heralded the expansion of the ability of judges to stand aside potential jurors for a variety of reasons. This author would call this line of authority a very conservative interpretation of this particular provision (especially in light of the discussion that accompanied it parliament by the minister of justice and the department of justice commentary). In this author's opinion, there is now legal authority for ameliorating the lack of representation of racial minorities on juries and this provision should be used aggressively to accomplish that goal with an aim to ensure fair trials for racialized defendants (particularly Indigenous and black accused). However, it is still progress. It is likely to survive challenge as a base-minimum discretion available to judges.  Here, the issue was of a "competent" juror. This relatively undefined term was given power through a general question to the juror to be followed up with an open-ended answer. The potential is certainly exciting, but time will tell. When reading this decision, it is important to keep in mind that Justice Boswell in Campbell made a specific exception to his proposed factors in the case of Indigenous accused, where he outlined significant support for the proposition that Indigenous representation on juries could and should be enhanced with this provision.  Moreover, caution should be exercised in adopting Campbell as there was no expert evidence led to substantial the proposition that more diverse juries are not better. A body of psychological evidence is available to counsel wishing to make this argument properly.  I recommend the work of Professor Evelyn Maeder at Carleton University (https://carleton.ca/criminology/people/maeder-evelyn/ )

Position of the Parties

[7] Mr. Furgiuele submits that immediately after the jury changes came into force on September 19, 2019, litigation on the issue was almost strictly limited to the constitutionality of the impugned section and whether it was retrospective or prospective. There was no real guidance from the trial courts on the stand-aside procedure as there had not been much time for the common law to develop.

[18] Formerly, s. 633 of the Criminal Code read as follows:

The judge may direct a juror who has been called pursuant to subsection 631(3) or (3.1) to stand by for reasons of personal hardship or any other reasonable cause.

[19] Section 633 now provides the following:

[t]he judge may direct a juror who has been called pursuant to subsection 631(3) or (3.1) to stand by for reasons of personal hardship, maintaining public confidence in the administration of justice or for any other reasonable cause (emphasis added).

[20] The “modern principle of statutory interpretation”, directs that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87.

[21] As mentioned by counsel, in Campbell - one of the very few cases to even consider this question - Boswell J. poses two important questions: first, what does “maintaining public confidence” entail? And second, what factors might reasonably justify standing aside a prospective juror in order to maintain such confidence?

[22] In [R. v. Campbell, 2019 ONSC 6285,], Boswell J. stated at para. 22:

The amendment arguably broadens the court’s discretion to stand aside prospective jurors during the selection process. I say “arguably broadens” because one might reasonably view maintaining public confidence in the administration of justice to have been captured by the phrase “any other reasonable cause”.  At any rate, assuring continued public confidence in the institution is now expressly enumerated as a justification for standing aside prospective jurors.

This stand by authority is available after a prospective juror has been called under s. 631(3) or (3.1), and thus is available before or after a challenge for cause has been heard and its truth determined. The language of “personal hardship” and “any other reasonable cause” duplicates that in the excusal authority of s. 632(c). But the language “maintaining public confidence in the administration of justice” is new and, as a matter of statutory construction, covers different ground. In this case, for example, the trial judge used it to direct a prospective juror, who had been found impartial on the challenge for cause, to stand by. The basis for its exercise was the appellant’s belief, communicated to the trial judge through counsel, that a rude gesture had been made by the prospective juror when asked to face the appellant.

We did not receive any submissions that would permit me to mark out the boundaries of this additional authority. Suffice it to say that its presence is of further assistance in ensuring the constitutional requirement – an impartial jury.

(a) The use of stand-asides is not an appropriate means of enhancing impartiality on a jury;

(b) The use of stand-asides will not generally make the jury selection process more fair;

(c) With the elimination of peremptory challenges, the selection process is transparent.  The use of stand-asides will not enhance that transparency;

(d) The use of stand-asides to enhance representativeness is largely unworkable; but,

(e) The use of stand-asides may be appropriate when issues of juror competence arise.

Every now and then, a prospective juror appears who is clearly not well-suited to jury service.  Lawyers and judges alike, through their life experience, are able to readily identify them.  Peremptory challenges were a useful means of eliminating them from the jury panel.

Competent juries are necessary to maintain public confidence in the administration of justice.  Where a trial judge has concerns about the competency of a prospective juror, it is appropriate to exercise the discretion to stand that juror aside.

[32] I am satisfied that the use of the term “competence” is not going down the road of a pseudo-peremptory challenge. The discretion remains with the trial judge on some objective rationale and avoids the stereotypical thinking and reasoning that was criticized in the peremptory challenge

Practical Application in this Case

[36] Before, commencing, the Registrar shall read the admonishment. Once an individual is called forward for presentation as a potential juror, in accordance with my ruling, s. 632 applies to allow the juror to self-identify any reason as to why he or she would be unsuitable or ineligible to serve.

[37] Section 632 provides that:

The judge may, at any time before the commencement of a trial, order that any juror be excused from jury service, whether or not the juror has been called pursuant to subsection 631(3) or (3.1) or any challenge has been made in relation to the juror, for reasons of

(a) personal interest in the matter to be tried;

(b) relationship with the judge presiding over the jury selection process, the judge before whom the accused is to be tried, the prosecutor, the accused, the counsel for the accused or a prospective witness; or

(c) personal hardship or any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused.

[40] If the juror is not excused or deferred, that individual moves on to the next stage of the process, the challenge for cause.

[41] Pursuant to s. 638(1)(b), counsel have an ability to challenge a jury panel for cause, on the basis of partiality. These challenges have traditionally been focussed and constrained. The most obvious basis has been referred to as race-based challenges; R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324, 84 C.C.C. (3d) 353 (C.A.) or publicity; R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509. The process of calling evidence to rebut the presumption of juror impartiality is explained in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863. However, I note that all of the appellate authorities on the specific issue here pre-date the fundamental changes enacted with the recent legislative amendments to s. 633.

[44] The proposed questions for the challenge for cause include:

1. This case has received attention in the media. Have you heard or read anything about this case?

2. (If yes) do you recall what you heard or read? Please explain.

3. Did you know anything about Mr. Lou Malone, who resided in East Hamilton, prior to his death?

4. (If yes) what had you heard about him?

5. Despite what you have heard or seen about this case, do you believe you can be a fair and impartial juror in light of what you heard or read?

[47] With respect, I cannot agree with the Crown that the revised stand-by (or stand-aside) provision as found in s. 633 is but a mere amendment and remains relatively intact from its previous incarnation; or that it does not effectively alter the process or the trial judge’ discretion.

[48] It bears repeating that s. 633 now stipulates that the judge may direct a juror “to stand by for reasons of personal hardship, maintaining public confidence in the administration of justice or any other reasonable cause”. As mentioned, s. 633 is vague and how it is to be used is not defined by the legislation. Thus, it is up to trial judges and appellate courts to apply the well-established legal principles and the common law to assist in its application.

[49] In Campbell, Boswell J. opines at para. 99 of his reasons:

Having said all of that, while the use of stand asides to manipulate participation and representativeness may not be a constitutional imperative, their use may still be appropriate in the context of a given case. I have already noted that it may be an appropriate practice in cases with an Indigenous dimension. There may be other cases that warrant, from the perspective of the public, the use of the discretion to stand aside prospective jurors in order to give other jurors – having particular characteristics – a greater chance of being selected. In my view, however, based on the concerns I have expressed, these cases will be rare.

[54] I agree with the defence that the amended provision expands the trial judge’s authority. With these new amendments, the trial judge's discretion has been enhanced to allow for a juror to stand-by for the broad purpose of “maintaining public confidence in the administration of justice”. It is clear that this is an important and crucial consideration which, in order to achieve its purpose, must be given meaningful application.

[55] It is axiomatic that an impartial juror is fundamental to the jury system. Partiality is a valid reason to excuse a juror under s. 638. Section 633 does not, however, necessarily engage the same valid exercise of discretion to stand a juror aside for the similar purposes falling under s. 638.

[56] Thus, I must differ slightly with defence counsel’s suggestions as to the overall mechanism of the selection process; that is to combine the challenge for cause questions with the stand-by authority and pose all questions at once. Thereafter, I am to either accept, excuse, or stand-aside a juror.

[57] I agree with the Crown attorney that there are two distinct processes. After the challenge for cause questions are posed, I make the determination as a trier of the challenge. I do not automatically seek any input from counsel, however, there may be circumstances where the Crown or defence might be requested to provide advice.

[59] As mentioned, it is incumbent on a trial judge to apply the authority and enhanced discretion found in s. 633 to the goal of achieving a competent jury. In the proper case, the defence or Crown ought to be able to seek a further inquiry as to each potential juror’s suitability, with allowances for submissions. In my opinion, s. 633 facilitates such an inquiry, as long as counsel can demonstrate an objectively reasonable justification.

[60] The specific inquiry may be modified in each particular case. It may also involve other probing questions that flow from the juror’s responses.

[61] In this specific case, I agree with the defence that a further question ought to be posed to each juror after the challenge for cause. The question - as drafted by counsel - is as follows:

Is there any other reason you can think of that would make it difficult for you to serve as an impartial juror and determine this case on the evidence alone and the instructions of the trial judge?

[62] Upon receipt of the answer, I will turn to counsel to determine if they wish to make submissions as to whether or not I should stand-aside the juror. If counsel do not wish to make submissions, he or she will be sworn as a juror.3

[63] If counsel signal that they want to make submissions, for whatever reason, then I will invite the prospective juror to leave the courtroom while I hear argument. After that, I will invite the prospective juror back into the courtroom and either ask further questions, direct him or her to stand-by, or have the individual sworn as a juror to try the case.

Conclusion

[65] It bears repeating that s. 633, is not a means to ensure that a certain group, gender, occupation or race form the petit jury. Nor is it a means to exclude other identifiable groups or individuals, or for any other improper use.

[67] The trial judge has a role to ensure whether a certain juror is “competent” to act as a juror in a specific case by ensuring that the public trust and confidence in the administration of justice is maintained. Where a trial judge has concerns about the competency of a prospective juror, it is appropriate to exercise the discretion to stand that juror aside. In order to achieve that objective, the parties ought to be able to request a limited right to make further inquiries, propose defined questions and make submissions, where appropriate; albeit on the basis of some objectively reasonable justification.

R v Sakhuja, 2020 ONCJ 484

[October 29, 2020] – Section 10(b) - Access to Counsel Through a Friend - Section 9 - Overholding on Over 80 [A. Dellandrea J.]

AUTHOR’S NOTE: Charter rights deserve serious consideration by police officers whenever they are interacting with an accused. These are not mere suggestions that can be fudged through if they are busy.  Here, a very casual approach to rights cost the police their case. First, police ignored a request to call a friend to get a number for a family lawyer. Second, after forming an initial impression of intoxication, the officer in charge did not visit the accused for a further two hours during which he remained unnecessarily detained. In the end, the casual approach of the police resulted in an exclusion of breath samples.

Overview

[1] Mr. Sakhuja’s arrest on June 16, 2018 followed a routine stop at a static “RIDE” check in Mississauga where he was asked to provide a breath sample into the “ASD” at the roadside. He did so and registered a fail. Following his arrest for Excess Alcohol, Mr. Sakhuja was transported to the Division where he ultimately provided two samples of his breath into the approved instrument. The defendant’s truncated breath readings 130 and 120 mg/100mL led to the single charge of “Over 80” which is before the court.

[2] The focus of this trial was not on what led up to the defendant’s arrest, but rather on the sufficiency and legality of the procedures which the police followed afterwards. Two breaches of the defendant’s Charter rights were argued, and one substantive argument was raised with respect to the proof of the Crown’s case.

Charter s.10(b) Access to Counsel

[55] I have no difficulty accepting the defendant’s testimony on the voir dire that when he was paraded before the booking sergeant and offered rights to counsel that Mr. Sakhuja immediately asked permission to phone one of his cellphone contacts to get the name of a particular lawyer. I make this finding for three reasons. First, although there is no sound on the booking video, this is the only reasonable interpretation of the dynamics of the silent recording. The phone is produced from the property bag at the defendant’s apparent request, Mr. Sakhuja is given the phone to scroll through, and the same officer appears to write down the contact details shown to him by the defendant. This exchange occurs immediately following the standard review of rights to counsel which takes place when a detainee enters a division. It is readily apparent that the defendant was asserting his right to communicate with counsel of choice.

[56] Second, the defendant’s testimony on this point was uncontradicted. Although Cst. Byrne was present at the duty desk when the exchange between the booker and the defendant was occurring, Cst. Byrne was preoccupied with other tasks (including calling duty counsel) and remained oblivious to the details of the conversation which was apparently happening right before him. I make no finding of bad faith here with respect to Cst. Byrne. As Mr. Engel very fairly stated, Cst. Byrne was a rookie officer who was very clearly focused on calling duty counsel, as he believed he was obligated to do. I accept that his efforts were earnest. But the fact remains that the investigative team as a whole failed to respect and properly facilitate Mr. Sakhuja’s 10(b) rights. While Cst. Byrne was calling duty counsel, Mr. Sakhuja was asking a senior officer for access to a third party in order to exercise his right to counsel of choice. For reasons which remain unknown, that request was never acted upon by the police, and the booking officer was not called by the Crown to explain why.

[57] Finally, the defendant’s evidence of having retrieved and provided his friend’s phone number to the police was confirmed by their own later conduct of having used that very number to call the friend to come and pick the defendant up. Neither Cst. Byrne nor Cst. Halfyard remembered ever receiving the number from Mr. Sakhuja – which means the number must have been the one provided to the booker by the defendant on his arrival.

[58] As a result of the investigators’ collective conduct, Mr. Sakhuja was left believing that the option of calling his friend must not have been allowed, since his asked for it twice (once to the booker, and again after the conversation with duty counsel). I accept Mr. Sakhuja’s testimony that he was nervous about his first experience in custody and confused about the extent of his right to counsel. He spoke to duty counsel not by choic e, but because he inferred that it was his only option when his request for help in identifying a particular lawyer were essentially ignored.

[59] The Supreme Court of Canada in Willier described the obligation of the police created by s. 10(b) as the requirement to give detainees a “reasonable opportunity” to consult counsel of choice:

Detainees who choose to exercise their s. 10(b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning the detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee's reasonable diligence in attempting to contact counsel: R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435; R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138; R. v. Smith, 1989 CanLII 27 (SCC), [1989] 2 S.C.R. 368. What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole...

[60] The assessment of the adequacy of the police’s implementation of the right to counsel asks not what the detainee would have done to facilitate their access to counsel of choice, but rather whether the police took all steps that were reasonable in the circumstances[6].

[61] Mr. Sakhuja made a specific request of the booker to be able to call a friend for a lawyer’s number immediately upon arrival to the division.  He repeated the request to Cst. Byrne after having telling him of his dissatisfaction in the brief call with duty counsel.  The investigators here failed on two occasions to take the most obvious step which was reasonably available for them to take, namely: to call the number which the defendant had identified for help in reaching counsel of choice.

Charter s.9 - Overholding

[67] Mr. Sakhuja testified that after providing his second sample, he was taken to a holding cell where there were 2 other individuals were also being held. Mr. Sakhuja said he was upset and confused about why the police were continuing to hold him. His residence was 5-10 minutes from the station. The defendant said that when the officers came to the holding cell to serve him with paperwork at approximately 2:30 a.m., he asked again if his friend had been called to come and pick him up. The officers told him that they had not been able to reach her. Apparently they called on two occasions, and got no answer. There was no discussion of any alternative release plan.

[68] Mr. Sakhuja was ultimately seen by the unit commander, S/Sgt. Gottschling at 3:50 a.m., and approved for release. He took an Uber home from the station.

[69] Staff Sgt. Michael Gottschling was the officer in charge of A platoon at the Division on the night in question. His duties included booking and lodging prisoners on their arrival, supervising approximately 45 officers, monitoring incoming calls, and giving advice to officers on the road throughout the shift.

[74] S/Sgt. Gottschling conceded that he personally conducted no evaluation of the defendant’s condition after the second breath test, at 1:50 a.m. The officer agreed that where possible, the best time to determine a person’s suitability for release is immediately or shortly after the testing procedure is concluded. The officer knew it was his legal obligation to release persons in his custody as soon as practicable, but said that he was simply unable to get to Mr. Sakhuja until 2 hours after the breath tests, because he was too busy with other duties.

[76]      In Price[8], Justice Durno provided a non-exhaustive list of factors to be considered in the assessment of the reasonableness of the “circumstances” of an individual’s continued detention following an arrest for a drinking and driving offence. These include:

(1)         The accused’s blood alcohol level;

(2)         Whether the accused was charged with impaired driving;

(3)         The accused’s apparent level of comprehension;

(4)         The impact of the administrative driving suspension;

(5)         Whether the accused has outstanding charges

(6)         The accused’s demeanour (which may include consideration of the poor judgment exhibited by drinking and driving).

[80] Rather, the following two factors predominated the officer’s decision to detain: 1) the officer’s assessment of the defendant’s apparent sobriety upon his arrival at the station; and 2) the demands of the officer’s other significant responsibilities as the supervisor of the Division.

[82] To be clear, I acknowledge that the administrative responsibilities of the unit commander at a bustling urban police station such as this one are considerable.  I accept S/Sgt. Gottschling’s evidence that he was very busy on the night in question, and had several other duties beyond prisoner evaluation.   It would be unreasonable to expect an officer in charge to be immediately available to perform an assessment of every prisoner’s capacity for release at the moment that their breath readings have concluded. The detainee’s suitability for release is to be objectively evaluated and achieved “as soon as practicable”, not “as soon as possible”.  However, the constitutional significance of the evaluation outlined in s. 498 requires that the assessment be conducted within a “timely manner,[10]” in the circumstances.  I conclude that this was not done in this case.

[83] My conclusion on this issue finds support in the other evidence informing the Price assessment criteria.  There was a stark contradiction between S/Sgt. Gottschling’s assessment of the defendant’s demeanour and the two other officers who had far closer and more prolonged contact with Ms. Sakhuja.  Cst. Byrne and Halfyard both described the defendant as being polite, seemingly sober and in their view -- suitable for release after the second test.  No impaired driving charge was laid by either officer.    Had S/Sgt. Gottschling inquired of these officers of their assessment of Mr. Sakhuja’s condition earlier, he might have found an earlier opportunity to satisfy himself of the defendant’s condition and directed his prompt release.  No inquiry was made, or information shared as part of the evaluation process.  As a result, Mr. Sakhuja remained in detention for an additional two hours beyond what was reasonably necessary.

[84] For these reasons, I conclude that Mr. Sakhuja has established on a balance of probabilities that his rights under section 9 of the Charter were violated.

Charter s.24(2)

Seriousness of the Charter-infringing State Conduct

[92] Here there were two breaches. The first of these was a serious lapse of police duty, in which the booking officer essentially ignored Mr. Sakhuja’s specific request to call a friend to receive a lawyer’s number. One officer wrote the number down, but did nothing with it. Another officer directed Mr. Sakhuja moments later to duty counsel, unaware that the request by the defendant had just been made. As a result, the defendant spoke to duty counsel believing it was his only available option....

[94] The s. 9 breach here was occasioned by inadvertence on the part of the commanding officer, as opposed to a blatant disregard for the claimant’s rights. S/Sgt. Gottschling had numerous important responsibilities as the officer in charge of his Division on the night in question, with prisoner evaluation being but one of them. Having made a brief, and perhaps precipitous assessment of the defendant’s level of intoxication on his arrival at the station, the officer concluded that Mr. Sakhuja needed some time to sober up before being released. He didn’t check in on the defendant for another 2 hours, nor did he invite input from the arresting officers on his suitability for release as he might have. I recognize that it might have been challenging for Sgt. Gottschling to juggle his various duties that night. However, had he been more attentive to his obligation to assess the defendant’s suitability for release in a timely fashion, Mr. Sakhuja would have been granted his liberty sooner, as he was entitled to. Overall, I would characterize this breach as modest.

Impact of the Breach on the Charter Protected Interests of the Accused

[96] The Crown argues that the impact of the breach of Mr. Sakhuja’s s. 10(b) rights was minimal because the defendant was able to consult with duty counsel. I’m unable to accept this submission in the applicant’s case, given the clarity of the request which he had made for assistance in facilitating his right to counsel of choice, and the primacy of that guarantee. I have accepted Mr. Sakhuja’s evidence that he was made to feel that speaking with duty counsel was his only option, after his request for help in calling a friend to find his own lawyer proved futile.

[98] Mr. Sakhuja was constitutionally entitled to a reasonable opportunity to speak to a friend for help in finding a lawyer he wanted and trusted. Rather than facilitate that opportunity, the actions of the police denied him this right and ‘channelled’ him towards accepting an offer of duty counsel which he felt he could not refuse. The foreclosure of his choice of counsel was a significant breach of his rights. This factor points significantly towards exclusion.

[99] The defendant was kept in custody for a total of two hours after the conclusion of the breath readings.  He was visited by the arresting officers after one hour, when the documents were served on him. He described the experience as unpleasant and unsettling.  The deprivation of liberty has been described by our highest court as a loss which is “never regained and can never be fully compensated for”[16].  Standing alone, the impact of the defendant’s prolonged detention for approximately two hours would be considered fairly minimal.  When considered in combination with the applicant’s denial of his right to counsel, the compounded breaches weigh more heavily.

Conclusion 24(2)

[102] As a result, the results of the breath samples are excluded and the Over 80 charge against Mr. Sakhuja is dismissed.