The Defence Toolkit – November 7, 2020

This week’s top three summaries: R v Canfield, 2020 ABCA 383:#phone #search at border unconstitutional, R v Cooke, 2020 NSCA 66: #sexual offence #credibility, and R v Al-Adhami, 2020 ONSC 6421: police #exaggeration in bail summary = stay of charges

R v Canfield, 2020 ABCA 383

[October 29, 2020] Charter s.8 - Search at the Border on Basis of No Grounds under Customs Act - Unconstitutional   [Frederica Schutz, Jo'Anne Strekaf, Ritu Khullar JJ.A.]

AUTHOR’S NOTE: In what looks to be the first actual Court of Appeal decision on the issue of electronic device border search pursuant to the Customs Act, the ABCA has determined the law is unconstitutional. While the declaration is suspended for a year, the law has been found to breach s.8 of the Charter and could not withstand the minimal impairment test under Oakes. While declining to set a minimum threshold for the search power at the border, the Court did rule against both appellants on exclusion of the unconstitutionally obtained evidence setting up a possible appeal by the Defence. The case provides a thorough overview of s.8 as it applies to border search and cell phones. A possible appeal is still available on the side of the Defence on the basis that the 1970s definition of goods in the legislation is definitely not inclusive of searches of cell phones and the minimum standard must be at least reasonable suspicion. This leaves the question of what the minimum standard is wide open for further litigation in the absence of legislative action. In between now and then, the defence is likely to get a breach (read: will get one in Alberta) unless authorities immediately begin to act on the basis of a higher standard than nothing. 

Overview

[1] The appellants, Mr. Canfield and Mr. Townsend, were each convicted of possession of child pornography. The evidence against them included photographs and videos retrieved when their personal electronic devices (a cell phone and laptop computer, respectively) were searched by Canadian Border Services Agency (CBSA) at the Edmonton International Airport. Both appellants are Canadian citizens, and both were referred for secondary inspection upon re-entering Canada. Their electronic devices were searched pursuant to s 99(1)(a) of the Customs Act, RSC 1985, c 1.

[2] The only issues at their trials, which were heard together, were whether the searches of their devices offended the Charter of Rights and Freedoms, whether the evidence of child pornography found on the devices was obtained in breach of ss 7, 8, 10(a) and 10(b) of the Charter, and, if so, whether the evidence should be excluded pursuant to s 24(2) of the Charter.

[6] A binding precedent, such as Simmons, “may be revisited if new legal issues are raised as a consequence of significant developments in the law or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate”: Canada (Attorney General) v Bedford, 2013 SCC 72 at para 42. There have been significant developments, both in the technology of personal electronic devices and in the law relating to searches of such devices, since Simmons was decided in 1988. A series of cases from the Supreme Court of Canada over the past decade have recognized that individuals have a reasonable expectation of privacy in the contents of their personal electronic devices, at least in the domestic context. While reasonable expectations of privacy may be lower at the border, the evolving matrix of legislative and social facts and developments in the law regarding privacy in personal electronic devices have not yet been thoroughly considered in the border context.

[7] For the reasons that follow, we are satisfied that the trial judge erred by failing to recognize that Simmons should be revisited to consider whether personal electronic devices can be routinely searched at the border, without engaging the Charter rights of those being searched. We have also concluded that s 99(1)(a) of the Customs Act is unconstitutional to the extent that it imposes no limits on the searches of such devices at the border, and is not saved by s 1 of the Charter. We accordingly declare that the definition of “goods” in s 2 of the Customs Act is of no force or effect insofar as the definition includes the contents of personal electronic devices for the purpose of s 99(1)(a). We suspend the declaration of invalidity for one year to provide Parliament the opportunity to amend the legislation to determine how to address searches of personal electronic devices at the border.

Analysis of Constitutionality of Routine Warrantless Search Power at the Border

[15] This appeal engages the constitutionality of s 99(1)(a) of the Customs Act. That section provides:

(1)   An officer may

(a)   at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts.

[16] The word “goods” is defined in s 2(1) of the Customs Act as including “conveyances, animals and any document in any form”.

[18] At issue in Simmons was the constitutionality of ss 143 and 144 of the Customs Act, RSC 1970, c-40, which required that an officer have “reasonable cause” to conduct a body search (since repealed and replaced by s 98 of the Customs Act). The majority in Simmons drew a distinction between the degree of personal privacy expected at a border crossing as opposed to domestically...

It is, I think, of importance that the cases and the literature seem to recognize three distinct types of border search. First is the routine of questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat or frisk of outer clothing. No stigma is attached to being one of the thousands of travellers who are daily routinely checked in that manner upon entry to Canada and no constitutional issues are raised. It would be absurd to suggest that a person in such circumstances is detained in a constitutional sense and therefore entitled to be advised of his or her right to counsel. The second type of border search is the strip or skin search of the nature of that to which the present appellant was subjected, conducted in a private room, after a secondary examination and with the permission of a customs officer in authority. The third and most highly intrusive type of search is that sometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to X‑rays, to emetics, and to other highly invasive means.

[27] In Carter, the Supreme Court upheld a trial judge’s decision to revisit Rodriguez v British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 SCR 519, 107 DLR (4th) 342 with respect to the blanket prohibition on physician assisted dying. The Supreme Court gave several reasons for revisiting the earlier precedent, which had been decided 22 years prior. The Court noted, at paras 46 and 47:

(1) The argument before the trial judge involved a different legal conception of s. 7 than that prevailing when Rodriguez was decided. In particular, the law relating to the principles of overbreadth and gross disproportionality had materially advanced since Rodriguez… and

(2) The matrix of legislative and social facts … differed from the evidence before the Court in Rodriguez. The majority in Rodriguez relied on evidence of (1) the widespread acceptance of a moral or ethical distinction between passive and active euthanasia (pp. 605-7); (2) the lack of any “halfway measure” that could protect the vulnerable (pp. 613-14); and (3) the “substantial consensus” in Western countries that a blanket prohibition is necessary to protect against the slippery slope (pp. 601-6 and 613). The record before the trial judge in this case contained evidence that, if accepted, was capable of undermining each of these conclusions ….

[28] Similar considerations come into play here. There is no doubt that there have been significant developments in the technology of personal electronic devices and the way they are used by Canadians since Simmons was decided in 1988. In 1997, almost a decade after Simmons was released, only 22% of Canadian households had a cell phone for personal use; by 2004 that number had increased to 59%[1]. This was prior to the release of the iPhone in 2007, and the advent of smartphones. In January 2019, there were approximately 28 million mobile internet users in Canada.[2] In January 2020, 96% of Canada’s population had a mobile connection and 94% used the internet. Of those who use the internet, 89% own a smartphone, 85% own a laptop or desktop computer, and 55% own a tablet device. [3]

It is well settled that the search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other “places”: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 38 and 40-45. It is unrealistic to equate a cell phone with a briefcase or document found in someone’s possession at the time of arrest. As outlined in Vu, computers — and I would add cell phones — may have immense storage capacity, may generate information about intimate details of the user’s interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinks that it has been destroyed, and may provide access to information that is in no meaningful sense “at” the location of the search: paras. 41-44.

[emphasis added]

[34] In comments that are instructive to the case before us, the Court in Fearon recognized that not all cell phone searches will involve the same level of intrusion on privacy: paras 54-58. Whereas seizures of bodily samples are “invariably and inherentlyvery great invasions of privacy” and “a significant affront to human dignity”, the same cannot be said of every search of a cell phone: para 55. In the case of Fearon itself, a search limited to an unsent text message to a co-offender and a photo of a handgun would constitute only a minimal invasion of privacy. The real issue “is the potentially broad invasion of privacy that may, but not inevitably will, result from law enforcement searches of cell phones”: para 54. The risk of such a serious invasion of privacy led the majority to conclude that the approach for searches incident to arrest must be altered to account for the risk (at para 58):

… the search of a cell phone has the potential to be a much more significant invasion of privacy than the typical search incident to arrest. As a result, my view is that the general common law framework for searches incident to arrest needs to be modified in the case of cell phone searches incident to arrest. In particular, the law needs to provide the suspect with further protection against the risk of wholesale invasion of privacy which may occur if the search of a cell phone is constrained only by the requirements that the arrest be lawful and that the search be truly incidental to arrest and reasonably conducted. The case law suggests that there are three main approaches to making this sort of modification: a categorical prohibition, the introduction of a reasonable and probable grounds requirement, or a limitation of searches to exigent circumstances. I will explain why, in my view, none of these approaches is appropriate here and then outline the approach I would adopt.

[37] Personal computers and cell phone searches were not mentioned or distinguished from other goods when Simmons was decided in 1988. That is hardly surprising given the nature of the technology that existed at that time. Individuals were not travelling and crossing borders with personal computers or cell phones that contained massive amounts of highly personal information. The technological advancements in computing technology over the past 32 years have fundamentally changed how individuals use personal electronic devices. There have been significant developments in the jurisprudence governing an individual’s reasonable expectations of privacy in their personal electronic devices and searches of such devices in the domestic context.

[38] We are satisfied that these changes satisfy the threshold test for revisiting the earlier law, and that the trial judge erred in failing to revisit Simmons and consider whether searches of personal electronic devices at the border should continue to be treated as falling into the first Simmons category of a routine search, or whether other approaches should be considered, such as a categorical prohibition, the introduction of a reasonable suspicion or reasonable and probable grounds requirement, a limitation of searches to exigent circumstances, or the adoption of an altogether different or new approach as was done in Fearon.

s.99(1)(a) of the Customs Act Offends s.8 of the Charter

In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.

… the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role.

[67] The high expectation of privacy that individuals have in their personal electronic devices generally must be balanced with the low expectation of privacy that individuals have when crossing international borders. Since border crossings represent unique factual circumstances for the reasonableness of a s 8 search and seizure (Monney at paras 42-43), the reasonable expectations of privacy international travellers hold in their electronic devices must be considered anew and in context.

[75] We agree with the conclusion in Fearon at paras 54 and 55 that, while the search of a computer or cell phone is not akin to the seizure of bodily samples or a strip search, it may nevertheless be a significant intrusion on personal privacy. To be reasonable, such a search must have a threshold requirement. As was noted in Simmons at para 28, “the greater the intrusion, the greater must be the justification and the greater the degree of constitutional protection”. Given that, in our view the threshold for the search of electronic devices may be something less than the reasonable grounds to suspect required for a strip search under the Customs Act. The appellants suggest a requirement for individualized suspicion that the search will reveal contraband. Recognizing that complex issues must be weighed in altering the law in this area, we decline to set a threshold requirement for the search of electronic devices at this time. Whether the appropriate threshold is reasonable suspicion, or something less than that having regard to the unique nature of the border, will have to be decided by Parliament and fleshed out in other cases. However, to the extent that s 99(1)(a) permits the unlimited search of personal electronic devices without any threshold requirement at all, it violates the protection against unreasonable search in s 8 of the Charter. [Emphasis by Author] [The ABCA Applied the test in R v Oakes, 1986 CanLII 46 (SCC)]

[Support for the Legislation Fell apart at Minimal Impairment] [96] Section 99(1)(a) imposes no legislative limits at all on searches of “goods” at the border. CBSA has developed policies that provide guidance on when and how electronic devices may be searched at the border. The 2015 Guideline provides in part:

- While there is “no defined threshold for grounds to examine such devices”, such examinations “should not be conducted as a matter of routine; they may only be conducted if there is a multiplicity of indicators that evidence of contraventions may be found on the digital device or media”.

- The examination must always be performed with a clear nexus to administering or enforcing CBSA-mandated program legislation and not for the primary purpose of looking for evidence of a criminal offence under another Act of Parliament.

- “Officers must be able to explain their reasoning for examining the device, and how each type of information, computer/device program and/or application they examine may reasonably be expected to confirm or refute those concerns.”

- The officer shall keep notes that clearly articulate the types of data examined and the reason for doing so.

- The examination of digital devices and media shall be conducted “with as much respect for the traveler’s privacy as possible, considering that these examinations are usually more personal in nature than baggage examinations.”

- Wireless and internet connectivity shall be disabled prior to examination.

- Initial examinations of digital devices “should be cursory in nature and increase in intensity bases on emerging indicators”.

- Only material within the device shall be examined.

- Officers shall note “the indicators that led to the progressive search of the digital device or media; what areas of the device or media were accessed during the search; and why.”

- Passwords to access the device can be requested but not passwords to access information stored remotely or online.

- If a traveler refused to provide a password, the device may be detained under s 101 of the Customs Act.

[97] The above limitations are not contained in the legislation; they are CBSA policies only. In his evidence, Mr. Vinette characterized these policies as not intending to impose a legal threshold of individualized suspicion because that “would significantly undermine the CBSA’s capacity to perform its statutory mandate” (Vinette Affidavit at para 89). He stated that “CBSA anticipates that a legal threshold for inspection of digital devices would be exploited by smugglers” (para 99). It is not apparent why appropriately drafted legislated limits on searches of personal electronic devices would significantly undermine CBSA’s ability to perform its mandate beyond what would be the case if CBSA officers were complying with the above policies. The existence of these CBSA policies suggests that some form of limitation on an unrestricted search ability of personal electronic devices is both possible and would not frustrate the objective of ensuring effective border security.

[99] The rationale for the distinction between the unrestricted search of goods permitted under paragraph 99(1)(a), and the threshold requirement for “suspicion on reasonable grounds” for the search of goods under paragraphs 99(1)(b), (c.1), (d), (d.1), (e) and (f) is not apparent. As was noted in the discussion of the constitutionality of s 99(1)(a), the privacy interest in the contents of laptop computers or cell phones greatly exceeds that in a single piece of mail, yet mail can only be searched where an officer suspects on reasonable grounds that the Customs Act has been violated. [Emphasis by Author]

[102] Having regard to the other provisions of the Customs Act and the Immigration and Refugee Protection Act, which impose some limits on the searches of goods, and the policies adopted by CBSA with respect to searches of personal electronic devices, we find that the unrestricted ability to search such devices pursuant to s 99(1)(a) does not satisfy the minimal impairment aspect of the proportionality inquiry.

Remedy

[112] We are mindful that protecting the privacy interest in an individual’s personal electronic devices while recognizing the need for effective border security will involve a complex and delicate balancing process. It will be up to Parliament, should it choose to do so, to devise a new approach that imposes reasonable limits on the ability to conduct such searches at the border. This raises the question of whether the declaration of invalidity should be suspended and if so for how long: Bedford at paras 166-167.

Charter s.24(2) Analysis

[164] We do not see how evidence of non-compliance with a 2015 internal policy is relevant to the seriousness of the state conduct in 2014. The BSOs acted in accordance with the existing statutory requirements. Moreover, “there were ample ‘objective, articulable facts’ … to support the customs officer’s suspicion” (Simmons at 534), and the searches were carried out in a reasonable manner.

[186] This is an evolving area of the law; there was nothing unreasonable in the reliance by the CBSA on the authority of Simmons and the jurisprudence following it. Quite the opposite; it would have been unreasonable not to rely on those authorities. The border officials acted in good faith in deciding to search the devices and in carrying out the searches. They uncovered real and reliable evidence of a serious offence that is crucial to the Crown’s case.

[187] The evidence is admitted.

R v Cooke, 2020 NSCA 66

[October 27, 2020] Credibility - too much focus on protection against stereotypes  [Reasons by Beaton J.A. with Beveridge and Bourgeois JJ.A. concurring]

AUTHOR’S NOTE: This case provides an example of what happens when a judge overlooks inconsistency in behaviours for fear of using impermissible stereotypes in a sexual assault case. The law in the area can feel like a tightrope, but straying in either direction can be grounds for successful appeal. 

Overview

[2] On the date in question, the Appellant and the complainant, known previously to one another, travelled from the complainant’s home in Truro to a residence in Dartmouth, Nova Scotia. The complainant did not know where the Appellant was taking her, but once they arrived she recognized the occupants. She feared for her safety due to the presence of the homeowners and other occupants previously known to her.

[3] The complainant proceeded to ingest alcohol and drugs. While in the downstairs of the home, she was assaulted by the Appellant and eventually taken to an upstairs bedroom by A.A., an occupant of the home. Left alone to sleep in that bedroom for the night, the complainant stated she was sexually assaulted by a male occupant of the home who entered the bedroom uninvited. The complainant stated she was later sexually assaulted by the Appellant when he entered the room uninvited. Early the next morning, the complainant fled the home with bare feet and eventually found the home of an acquaintance, who then called 911.

[5] The complainant explained during cross-examination that she did not discuss the sexual assault because she felt she was being judged by EHS personnel, who she said were joking around and asking questions that made her uncomfortable. The complainant agreed with defence counsel she had not been truthful with EHS when she told them she remembered nothing about the prior evening. She further testified while she had not provided any details to the physician who examined her at the hospital, save stating she had been sexually assaulted, the examination resulted in certain medications being prescribed to her.

[6] At trial, defence counsel challenged the complainant on what she did and did not report to medical personnel in an effort to highlight internal inconsistencies in the complainant’s evidence, and to elicit her admission she had been untruthful in aspects of her disclosure. Cross-examination also illustrated contradictions in her evidence with that of Crown witness A.A., who had taken the complainant to the upstairs bedroom on the evening in question.

[7] In her decision, the judge found the complainant to be a credible witness, and explained why none of the contradictions within her evidence or with the evidence of A.A. impacted the judge’s conclusions. In doing so, the judge invoked several cautions against stereotypical reasoning to support her conclusions, and asked herself, rhetorically, why the complainant would have lied about the alleged sexual assault when disclosure of it required her to take medications prescribed for her at the hospital. The judge was satisfied the complainant did not have “a motive to lie” and her explanations were “plausible”.

Stereotypes of Human Behaviour

[22] The refusal to participate in the SANE process is not a basis for disbelieving a complainant. However, the judge’s task was to assess whether the complainant’s evidence was credible. One cannot draw an adverse inference from the lack of a SANE kit, but the factual matrix surrounding why the complainant refused participation in such an exam—her explanation about contact with intimidating EHS personnel—does not appear to have been considered by the judge.

[23] The judge was not free to ignore the complainant’s reasons for not participating in the SANE process or declining to disclose details of the incident to the treating doctor. I agree with the Appellant that the complainant’s lack of disclosure to the paramedics and limited disclosure to the treating doctor, while not in and of itself indicative of anything, were relevant to the task of assessing her credibility.

[24] Thirdly, the Appellant takes issue with the judge’s observation that no adverse inference could be drawn from post-offence demeanour or behaviour of the complainant. The judge said this:

And lastly, Mr. Rogers argues there are no details of the sexual assault given to the doctor. No adverse inference against credibility of a complainant may be drawn that is based on post-offence demeanour or behaviour of the complainant. They may or may not be emotionally distraught or exhibit a change in behaviour post-offence. (Emphasis added)

[27] The record illustrates the judge focussed on avoiding impermissible inferences rather than scrutinizing certain aspects of the evidence to properly assess the complainant’s credibility. The judge’s reasons do not allow me to conclude she took into account the complainant’s lack of memory nor her inconsistent statements, nor her problematic admission to the court during crossexamination that she had lied to medical personnel at the hospital.

[28] The complainant’s evidence contained internal inconsistencies regarding the EMTs, the SANE examination, and her communications with the doctor, coupled with external inconsistencies with the evidence of witness A.A. These matters were not addressed by the judge, or if they were, it is not evident from the record. With respect, it is not apparent the judge considered inconsistencies she could or should have; doing so would not have necessitated the judge engaging in impermissible reasoning or stereotypical thinking. Avoiding pitfalls does not equate to not completing the task of taking into account and assessing the evidence.

[29] A similar problem arose in R. v. Roth, 2020 BCCA 240.  There, the British Columbia Court of Appeal concluded the trial judge failed to appreciate and resolve significant inconsistencies in the complainant’s evidence in a sexual assault trial.  Specifically, the judge correctly rejected a suggestion the fact the complainant did not say anything about a sexual assault to a cab driver, nor call the police, would go to the issue of consent.  Agreeing it would have been an error to ground an adverse credibility finding in stereotypes about how a sexual assault complainant “should” act, DeWitt‑Van Oosten J.A. went on to discuss the need to properly assess and deal with inconsistencies in the evidence:...

[131]  On this point, I agree with the comments of professor Lisa Dufraimont in “Myth, Inference and Evidence in Sexual Assault Trials”, (2019) 44 Queen’s L.J. 316 at 353:

Criminal courts … carry the heavy responsibility of ensuring that every accused person has a fair trial.  Subject to the rules of evidence and the prohibition of particular inferences, this requires that the defence generally be permitted to bring forward all evidence that is logically relevant to the material issues.  Repudiating myths and stereotypes means rejecting certain discriminatory lines of reasoning, but it does not make whole categories of evidence irrelevant or inadmissible.  Indeed, sweeping prohibitions that would rule out any consideration of particular forms of evidence are avoided as inconsistent with the accused’s right to make full answer and defence and with our overall approach to finding facts.  Outside the prohibited lines of reasoning identified as myths, relevance remains an elastic concept that leaves a wide scope for reasoning from logic and human experience.  [Internal references omitted.]

[30] As in Roth, here there is no indication the judge considered or resolved the inconsistencies and contradictions in the complainant’s evidence in assessing credibility.

[31] While each passage pointed to by the Appellant, taken in isolation, might not weigh as heavily if the appropriate credibility assessment had otherwise been conducted, it does not appear that was done.  The judge’s repeated reliance on impermissible reasoning jettisoned the task at hand and was an error sufficient to impact the deference otherwise due to a judge’s credibility assessment.

[34] While the judge did not find any troublesome credibility detractors in the complainant’s evidence, the absence of them did not constitute the proper basis upon which the judge could then make positive findings of credibility and reliability:  R. v. Laing, 2017 NSCA 69 at para. 68.

[35] I am persuaded the judge’s overemphasis on prohibitions against stereotypical thinking, to the detriment of the task of assessing credibility, combined with unsupportable positive credibility findings, amount to errors of law.

Shifting the Burden of Proof

[38] It is not our task to focus on the frequency of a turn of phrase or use of a word(s) that might, with the luxury of second thought, have been differently expressed. The concern here is not with the multiple uses of the word “plausibility”, but its obvious implication for the judge’s reasoning process.

[40] I am persuaded the judge’s repeated acceptance of the “plausibility” of certain possibilities to furnish explanations means that for her those other likely, probable or conceivable ways to view the evidence led her to resolve difficulties or inconsistencies presented by the complainant’s evidence.

[42]  An absence of exaggeration in a complainant’s evidence may hardly be surprising, but the trier of fact must exercise care in the application of that characterization of the evidence.  The recent decision in R. v. Alisaleh, 2020 ONCA 597 illustrates the difficulty.  There, the trial judge had treated the complainant’s lack of embellishment as enhancing her credibility.  The Ontario Court of Appeal found:...

[16]      To be clear, it is not an error to simply note that there is an absence of embellishment in the complainant’s testimony. This court has held that the presence of embellishment can be a basis to find the complainant incredible, and there is nothing wrong with noting the absence of something that could have diminished credibility. However, it is wrong to reason that because an allegation could have been worse, it is more likely to be true: R. v. Kiss, 2018 ONCA 184 at para. 52, citing R. v. G.(G.)(1997), 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) 1, at p. 10 (Ont. C.A.); R. v. L.L., 2014 ONCA 892, at para. 2; R. v. G. (R.), 2008 ONCA 829, 243 O.A.C. 1, at para. 20. (Emphasis added) Our colleague Paciocco J.A. put it this way in Kiss at para. 52:

On the other hand, in my view, there is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness’ evidence, or that the evidence stood up to cross-examination. These are not factors that show credibility. They are, however, explanations for why a witness has not been found to be incredible.

[43] While the judge correctly reminded herself credibility was one aspect of the ultimate question of proof beyond a reasonable doubt, it would seem from the decision, read as a whole, she was searching for a way to justify her positive treatment of the complainant’s evidence.  It is reasonable to conclude that, in effect, the judge was suggesting the lack of bizarreness or exaggeration in the complainant’s evidence helped to erase any reasonable doubt.  The cumulative effect was to undermine the Appellant’s right to a fair trial by effectively shifting the burden of proof to him to show how that evidence was bizarre, far-fetched or grossly exaggerated.

[Other errors identified: improper use of prior consistent statement and hearsay]

Conclusion

[58] Nonetheless, I am persuaded by the Appellant’s arguments that despite the deference owed to the judge’s findings of credibility, her overemphasis of cautions against stereotypical reasoning fettered her task of making credibility assessments. She also used otherwise neutral features to make positive credibility assessments. Furthermore, the judge improperly used both a prior consistent statement of the complainant and hearsay evidence in assessing the credibility of the complainant.

R v Al-Adhami, 2020 ONSC 6421

[October 22, 2020] Charter s.9 - Overholding Due to Dishonesty in Police Synopsis - Charter s.10(b) - Disparaging Counsel by Suggesting They are At Home and Not With Accused at Station [D.E. Harris J.]

AUTHOR’S NOTE: Police exaggeration in the synopsis of allegations in a criminal case can and does occur quite often. Most defence counsel are able to catch it quickly on review of actual disclosure.  However, at the early bail stage the lawyers and accused do not have access to that information.  The police synopsis plays an important role in the timely release of accused people.  Here the lies and exaggerations led to detention of a young accused as the Maplehurst correctional complex over a weekend when he should have been released and ultimately was released on consent. The charges were stayed as a result. The case also involves a rather typical form of denigration of counsel: the suggestion that the accused is in the hot seat not the lawyer giving him advice to stay silent (the insinuation being: the lawyer has nothing at stake and doesn't care).  A section 10(b) violation was found herein on this basis.

Overview

[2] ... Mr. AlAdhami was walked out to an unmarked police car, handcuffed and placed in the back seat.

[3] The police officers were from Peel Region, where the offences were alleged to have occurred. They drove Mr Al-Adhami to their station in Brampton. He was booked. Mr. Al-Adhami spoke to duty counsel and then to his own lawyer, a family lawyer. He was then interviewed by a third police officer about the allegations.

[6] There was evidence on this hearing that there is a “cut-off” to get accused to bail court due to logistical issues. The cut-off was 2:00 p.m. or 2:30 p.m. Mr. Al-Adhami missed the cut-off as he was not ready to be brought to court until about 5:00 p.m. He stayed the night in the cells at the police station.

[7] Mr. Al-Adhami was transported to court the next day, a Saturday. The Crown in bail court (not Ms. Prihar) stated to the presiding Justice of the Peace:

The Crown has quite serious concerns on the secondary grounds and we’d be seeking his detention at this point.

[8] Duty counsel for Mr. Al-Adhami said that there was no plan in place as of yeti.e. no sureties were available—and asked that Mr. Al-Adhami be remanded to Monday for a bail hearing. As a result, Mr. Al-Adhami spent Saturday and Sunday nights in the Maplehurst Correctional Complex in Milton. He testified that his stay at Maplehurst those two nights was terrifying. From there, Mr. Al-Adhami was able to make phone calls to arrange for two potential sureties to attend at court on Monday, September 10, 2018. At the hearing that day, the Crown and the Justice of the Peace both exclaimed how serious were the charges. After a proceeding that took up almost 70 pages of transcript including evidence from the proposed sureties, Mr. Al-Adhami was released on the consent of the Crown on a $7500 bail with two sureties. He has been on this bail for almost two years up to the present time.

[9] The defence argues that the police ought to have released Mr. Al-Adhami immediately or, at the least, he should not have been held for a bail hearing. In the alternative, the bail hearing ought to have taken place before the weekend, reducing substantially his time in custody. It was also argued that there were significant discrepancies between the complainant’s allegations and the information that made its way into the documents prepared by Det. Cst. Smith for bail purposes. The defence argues that for these reasons this prosecution constitutes an abuse of process and should be stayed.

[10] I would allow the application and stay the proceedings. The allegations drafted by Det. Cst. Smith for the police and Crown grossly overstated what the complainant had actually said in her police interview. Unfortunately, Det. Cst. Smith was on a medical leave at the time of this voir dire and no explanation for the discrepancies was tendered at this hearing. On the true allegations, if Mr. Al-Adhami was to be charged at all, which is very much open to doubt, no reasonable police officer would have held him for bail. For this reason, virtually the entire course of Mr. Al-Adhami’s detention was unjustifiable and arbitrary.

[13] In order to fully appreciate the fundamental nature of the discrepancies between what the complainant said and what found its way into the bail documentation, later read by the Crown Attorney at the September 10, 2018 bail hearing, the synopsis will be juxtaposed against the true allegations, starting with the most serious counts: the obstruct justice and intimidation of a witness.

Obstruction of Justice/Intimidation of Witness

A. Between the dates of August the 31st of 2017 and September 1, 2018, the accused forced his mother to attend the Peel Regional Police at Square One Community Station B. for the purpose of having the victim recant her allegations against her ex-husband, the accused’ father so that the charges against the accused’ father would then be ultimately dismissed. C. The victim fearing for her safety and feeling psychologically bound, she attended the community station with the accused and spoke to a police officer who advised them to speak with the Crown Attorney’s Office. The victim did not contact the Crown Attorney’s Office as she did not want the charges dismissed.

(Emphasis Added)

[19] First, there was nothing in the complainant’s police statement which suggested that her son “forced” her to go talk to the police. He suggested going and she may well have felt some psychological pressure to follow through, but he did not force her in any sense of the word.

[20] It was agreed as fact between counsel that Mr. Al-Adhami never asked his mother to “recant.” This inaccuracy is critical. “Recant” has a well recognized import; it means to repudiate an allegation or a statement. The repudiation often takes the form of retracting an allegation of wrongdoing against a person or claiming that they cannot remember making the incriminating statement in the first place. An allegation that someone has asked another to recant brings with it a connotation of impropriety, usually of a criminal nature. Requests to “recant” are common features of witness tampering and obstruct justice prosecutions.

[21] A typical example is the famous hearsay case of R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22. The trial judge in that case, Justice MacDonnell (as he then was) found that the three “recanting” Crown witnesses, all three later convicted of perjury for their testimony, were originally telling the truth to the police and their testimonial recantations were false: see paras. 138-139 per L’Heureux-Dube and Cory JJ. concurring. This is typical in the context of a recantation. Recantations are generally nefarious and generate strong suspicious that the recantations are false.

[23] While the synopsis said that the complainant “feared for her safety” when she went to the police kiosk with Mr. Al-Adhami, the parties agree that she never said this. Nor, in my view, could it be inferred from what she did say in her police statement. The parties also agreed that Mr. Al-Adhami never used or threatened violence.

[26] The actual scenario was entirely different. The young man was asking his mother, out of love for him (the son), to agree not to proceed with the allegations. He did not threaten her; he did not ask her to change her evidence. There appeared to be a considerable amount of naivete behind Mr. Al-Adhami’s conduct.

[27] Another important feature of the conduct here was that it took place right in front of a police officer. A request to recant an allegation of wrongdoing against another is not usually acknowledged and publicized. But that is what happened in this case. In the bail synopsis, a careful listener or reader would have perhaps thought it odd that the attempt to have the mother “recant” was argued out in front of a police officer. But that would likely have been submerged under the indications of coercion suggested in the synopsisthe recantation, the complainant’s fear and the allegations of force. However, when those false allegations are removed, the openness of Mr. A’s approach to the police officer takes on quite a different complexion.

[30] On some occasions, the obstruct justice provision is extended beyond this context. Dambrot J. in R. v. Valentine, [2003] O.J. No. 3753 (Ont. S.C.J.), at paras. 29-30 discussed situations in which there was no overt request to change one’s evidence. He gave three examples: 1. A request of a witness to withdraw an allegation because both the witness and the accused are black; 2. A request to a witness to withdraw because the accused was a friend or an important person; 3. Asking the complainant to withdraw out of sympathy for the consequences of a prosecution on an accused person. It was held that the first two examples may have a tendency to obstruct while the third occurs regularly in pre-trial discussions and does not.

[31] Very few, if any authorities, posit guilt on the hypothetical foundations of these examples. It stretches to its limits--or beyond--the concept of “corrupt means. This case does not approach this extreme. The situation here is much closer to the last example given than to the others. The gist of the applicant’s approach to the complainant was based on an appeal to sympathy and the length of time that had gone by since the charges were laid. The complainant was not fearful; she was not forced to attend on the police officer; she was not asked to alter her evidence. The police officer did not think anything was untoward and directed Mr. Al-Adhami and his mother to the Crown Attorney’s Office.

[The Intimidation and Criminal Harassment "facts" were similarly exaggerated]

Charter s.9 Overholding

[52] This second aspect of arbitrary detention is a detention or arrest which, although originally lawful, continues on past the point it can be justified. The defence on the evidence adduced on this voir dire argued that Mr. Al-Adhami should have been released more or less immediately.

[55] The obligation to release incumbent upon the police corresponds with the “ladder principle” obligation on a judicial officer in the context of bail release under Section 515(2) of the Code. The Supreme Court of Canada in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, stressed the importance of strict adherence to the ladder principle, defining it as requiring release “at the earliest reasonable opportunity and... on the least onerous grounds”: at paras. 29 and 67.

[58] The only possible concern under the public interest was a continuation or repetition of the offence. It is evident that the police did not themselves view this as pressing as they took no action between the time when the complainant’s statement was taken on July 26, 2018 and the date of the arrest, September 7, 2018. A condition of release could have been to have no direct or indirect contact with his mother. Instead, holding him for three nights was unjustifiable, a violation of Section 498 of the Code and arbitrary within Section 9 of the Charter: R. v. Brooks 2001 CanLII 28401 (ON SC), [2001] O.J. No. 1563, (2001), 153 C.C.C. (3d) 533 (Ont. S.C.J.) at para. 21

38   In our view, an arbitrary detention for the purpose of these appeals is a detention which is capricious, despotic or unjustifiable.

[66] In addition, viewed from the perspective of the police common law powers, far from justifying what happened here, these also demonstrate that it was arbitrary. The Supreme Court of Canada has held,

Absent a law to the contrary, individuals are free to do as they please. By contrast, the police (and more broadly, the state) may act only to the extent that they are empowered to do so by law.

R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 15.

[68] The Section 9 guarantee against arbitrary detention protects “one of the most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law.” Charkaoui, Re  2007 SCC 9, [2007] 1 S.C.R. 350 (S.C.C.) at para. 88. Mr. Al-Adhami was not detained in accordance with the law; his detention was arbitrary and a violation of the Charter. The next issue is the appropriate remedy for the breach.

Remedy - Stay of Proceedings under s.24(1)

[69] This is one of those clearest of cases in which the drastic remedy of a stay of proceedings and the termination of this proceeding is required. As was said by the Supreme Court in R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, 20 D.L.R. (4th) 651 (S.C.C.), at pp. 136-137, this is a case in which:

…compelling [the] accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency ...

[71] The three requirements of the abuse of process test as articulated in Babos at paragraph 32 are: 1. Prejudice that will be manifested, perpetuated or aggravated through the conduct of the trial or its outcome; 2. No alternative remedy is available for the prejudice; and 3. Where there is uncertainty after steps 1 and 2 or where it is the residual category in issue, there must be a balancing of the interests in favour of a stay against the societal interests in a decision on the merits.

[74] With respect to the physical deprivation, the main component was a detention for three nights when only a few hours could possibly be justified. This amounted in law to four days of custody, six days with the usual Summers credit. Reasonable bail would have been, at the highest, a prompt release with a condition to stay away from his mother. The police either had no right to arrest or, if they did, they had no right to overhold for a period of three nights. Det. Cst. Smith did not act in good faith and did not exercise honest judgment. The unjustifiable deprivation of physical liberty goes to the core of individual rights in a constitutional democracy. Continuing Mr. Al-Adhami’s arbitrary detention violated his Section 11(e) Charter right not to be denied reasonable bail without just cause: R. c. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, [1992] S.C.J. No. 99, at para. 48.

[75] Some of the circumstances of Mr. Al-Adhami’s detention increase the seriousness of the negative physical effects on him. In the police station cell, he was given blankets to keep him warm. Those blankets were almost completely ineffectual. Eventually he had three of them but he was still very cold. He asked for more but was not supplied with them. There seems to be reluctance to give the prisoners more than three. The blankets are plastic on one side and a very light synthetic fabric on the other. The police officers who testified on the voir dire appeared to acknowledge that they were inadequate. I would also note that Mr. Al-Adhami was not supplied with any food and did not eat anything from an early morning granola bar, through the time of his arrest, until about 6:00 p.m. It could be said that those in police custody cannot expect luxury accommodations or service. But all inmates are entitled to basic human dignity, decency and respect. I need not finally grade how Mr. Al-Adhami was treated in custody. It is sufficient to say that it did raise significant concerns.

[76] Mr. Al-Adhami said that he was strip searched in the open sight of other inmates when he was admitted into the Maplehurst Correctional Centre for his two nights there. If this is correct, it would be highly irregular and improper, but it is unnecessary to determine whether this happened or not.

[77]  Continuing with the other physical detriments, Mr. Al-Adhami was on a substantial surety bail for almost two years. This in itself can be a significant hardship: R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555, 205 C.C.C. (3d) 488 (Ont.C.A.).

[78] In terms of the effect on the integrity of the administration of justice, in fixing the police conduct along a fault spectrum, this was clearly no accident. Each of the many inaccuracies were allegations which militated towards Mr. Al-Adhami’s detention and away from his release. There were no exceptions. Furthermore, no part of the allegations was untouched by some degree of distortion. The consistent slant of the allegations and the way in which they permeate every aspect of the synopsis indicate a high degree of purposive behaviour. Det. Cst. Smith was not available to testify and did not tender an explanation. An eerie Kafkaesque feeling remains: Why was Mr. Al-Adhami treated so poorly and the allegations so grossly distorted?  We will probably never know.

[79] The crux of the matter for our purposes is the impossibility of imagining an explanation that could decrease, as opposed to increase, the seriousness of Det. Cst. Smith’s conduct. At the very least there was a high degree of negligence; at the most, there was deliberate malice. It is difficult to situate the conduct along that continuum on this record but, ultimately, it is unnecessary. A high degree of negligence with the dire consequences it had on Mr. Al-Adhami is more than sufficient to demonstrate an abuse of process.

[80] ... The accused, not yet having disclosure, is generally powerless to effectively rebut what is in the synopsis and the bail information. For this reason, the police must be unfailingly scrupulous in stating the allegations. Release after arrest and apprehension, like judicial interim release as emphasized by the Supreme Court over the last five years beginning with R. v. St. Cloud,2015 SCC 27, [2015] 2 S.C.R. 328, is a tremendously important facet of our system of justice.

[81] There is no alternative remedy for the misconduct that occurred in this case other than a stay of proceedings.  Nothing can give Mr. Al-Adhami back the liberty taken from him.  But a stay will ensure that there is no perpetuation of the unfairness visited on Mr. Al-Adhami.

[83] The seriousness of the misconduct prejudicing Mr. Al-Adhami and the integrity of the process shocks the community’s conscience, in my view. Mr. Al-Adhami, a young man with no criminal record, under false pretences, has served time in custody he should never have served. The system failed him. Balanced against this, the true case against Mr. Al-Adhami was between weak and non-existent. It was neither strong nor serious. The value in a prosecution on the merits is meagre. In the final balancing, the public interest in the case was clearly superceded by the harm to the integrity of the system. The balancing process reinforces the assessment that this prosecution should be stayed.

[85] The truth was distorted and inflated by those entrusted with the integrity and reputation of justice. State misconduct contaminated the process at its very foundation. It is necessary to denounce what occurred. To continue the trial would condone the impropriety. This is the clearest of cases. A stay must be imposed.

Charter s.10(b) - Disparagement of Counsel

[86] Counsel argued a Section 10(b) right to counsel issue arising from the police interview of Mr. Al-Adhami shortly after his arrest. Counsel’s position is that the police impermissibly disparaged counsel and the advice to remain silent at the beginning of the interview. Since it was fully argued it should be canvassed. In the circumstances here, my opinion is that the police stepped over the line and violated Mr. Al-Adhami’s right to counsel.

[re silence advice]

OFFICER: Okay. All right. Um, well, that's what they say to everybody. I'm not gonna lie to you, right?

...

OFFICER: So I'm not-, that's why I'm giving you the opportunity to speak and just to explain. I mean, I know your lawyer and the Duty Counsel said not to speak, which is fine, that's the advice they give to everybody, right? They're not the ones sitting in jail. They're the ones at home taking a phone call from you, and that's what they tell people, right?

[92] ... The conduct in Burlingham ought not to define what is impermissible and what is not. Instead, Justice Iacobucci’s words describe a sweeping prohibition:

14 … s. 10(b) specifically prohibits the police, as they did in this case, from belittling an accused's lawyer with the express goal or effect of undermining the accused's confidence in and relationship with defence counsel.

It makes no sense for s. 10(b) of the Charter to provide for the right to retain and instruct counsel if law enforcement authorities are able to undermine either an accused's confidence in his or her lawyer or the solicitor-client relationship.

[101] There may be instances of more serious denigration than occurred in this case but it must be remembered that a 19 year-old accused in police custody with no experience in the system was is in an especially delicate and vulnerable position.

[103] In the result: Order to go in accordance with these reasons, staying the proceedings on the four count indictment before the court.