The Defence Toolkit – October 31, 2020

This week’s top three summaries: R v Sanhueza, 2020 BCCA 279: accused out-of-court #statement, W(D), R v CDR, 2020 ONSC 5030: #entrapment, and R v Kohut, 2020 ONSC 6213: CIs and #corroboration.

R v Sanhueza, 2020 BCCA 279

[October 13, 2020] Failure to Consider Accused's Out-of-Court Statements and the Second Rung of W(D) [Reasons by Madam Justice DeWitt-Van Oosten with Saunders and Bennett JJ.A. concurring]

AUTHOR’S NOTE: R. v. Edgar, 2010 ONCA 529 allows courts to consider spontaneous responses by an accused made in the face of an accusation as evidence in their favour in a trial. In this case, the BCCA found error when a trial judge failed to consider such a statement under the second rung of W(D).  That is, even though she found it equivocal, she did not consider whether it raised a reasonable doubt for her. This whole line of case-law appears to be gaining significant traction in Ontario and other jurisdictions. Counsel would be wise to consider whether they can turn the usual assumptions in criminal defence on their head and start using their own client's statements if they fit Edgar principles to further the case for the defence. 

Background

[4] The complainant’s family immigrated to Canada from Mexico in spring 2016. They met the appellant through a local church and became friends. The complainant was 15 years old and has a twin brother, who dated the appellant’s daughter. The appellant would take all three teenagers on outings. The complainant testified that after one of these outings, he had a discussion with the appellant about sexual matters, including whether she had ever had an affair and whether the complainant was a virgin.

[5] In summer 2016, the complainant’s mother returned to Mexico to deal with a property issue. The appellant also arranged for travel to Mexico. The complainant testified that on the day before the appellant left for Mexico, he was alone with her while running errands. The appellant drove to a parking lot in a forested area near the Guildford Mall in Surrey. She parked and the two of them began talking. The appellant asked the complainant to look for something in the back seat. When he could not find it, she joined him there, and the conversation continued.

[6] The complainant testified that the appellant produced a bag from which she removed a dildo and lingerie. She talked to him about how she used the dildo. She opened her shirt, removed her bra and asked him if he liked her breasts. He said she twice touched his penis over his pants, and, at one point, she moved her head down close to his penis. He was uncomfortable and got out of the car. The appellant apologized. The complainant got back into the car and they left the parking lot, continuing with the errands.

[7] The complainant testified that after the appellant went to Mexico, she contacted him and told him not to say anything about the incident. Approximately two weeks later, he told his mother and stepfather. The complainant and his mother subsequently met with the bishop of their church. The appellant also attended that meeting....

[9] The complainant subsequently entered the room and provided his version of events. His mother testified that in response, the appellant:

… started to yell at my son and become very aggressive towards him, to the point that I had to come between the two of them, and I said that — that she will stop doing that, and that I would — the only thing that I wanted her to do is to accept the truth, and I didn’t want to have anything else to do with her.

…

… you see, she said — she told him — she said many things. The — the thing that I remember the most that she said to him that she would — that that he would be going to jail because of sexual harassment. Sexual harassment, yes.

…

… she said that she — it was my son, the one who had tried to have a sexual relation with her. Well, you see, I had — then I ask her back why haven’t you told me. I mean we have been many days alone, you could have told me something about it. But she never told me anything.

…

… she said that one day she had gone to my place and she had asked to go to the bathroom, and then she said that that’s when my son had gone and sexual harass her.

[10] In cross-examination, the complainant’s mother agreed that during the meeting with the bishop, the appellant said the complainant had grabbed her buttock and asked for kisses. She also said she had not wanted to tell the complainant’s mother about his behaviour because she knew the complainant’s mother “punishes” her children and the complainant was afraid of her. The appellant “denied everything [the complainant] said”.

The Trial Judge's Reasons

[19] Specific to the out-of-court denial, the judge said this:

[47]      The accused did not testify. I am asked to consider her comments, her behaviour and her denial at the meeting that she had with [the complainant], his mother and the bishop. It is clear that she did not accept the allegations. She said they were not true. She, in [the complainant’s] words, blamed him and tried to turn the story around.

[48]      She said that he grabbed her by the buttock and asked her for kisses but she did not want to tell the mother, even when she spent time with her in Mexico, because she did not want [the complainant] to be punished.

[49]      The defence also says that her anger at that meeting shows that she was angry at being falsely accused. I cannot assume that. It is just as consistent with being, perhaps, outed in front of the bishop and her friend.

[50]      In all, I cannot place great weight on what happened at that meeting. Mrs. Sanhueza did not testify, as is her right, but what happened at that meeting is capable of different interpretations. I accept that she denied the allegations but that did not happen in court where it could be tested by cross-examination, nor was I able to examine her demeanour.

[Emphasis added.]

Analysis

[23] The Crown led the evidence of the meeting with the bishop as part of its case. The appellant says that once the Crown made that choice, the appellant was entitled to the whole of the meeting’s exculpatory potential. On this point, the appellant cites R. v. Graham, 1972 CanLII 172 (SCC), [1974] S.C.R. 206 at 213, for the principle that when the Crown elects to adduce an out-of-court declaration made by the accused:

… the declaration then becomes evidence for the prisoner as well as against him …. If in such a case the declaration is capable of being construed as an explanation which might reasonably be true, the accused is, of course, entitled to all the advantages of it.

[Internal citations omitted.]

[24] In R. v. Rojas, 2008 SCC 56, the Supreme Court affirmed the principle, explaining it this way:

[37] Of course, the general rule that excludes out-of-court exculpatory statements is not without exceptions. One such exception is relevant here — the mixed statement exception. Just as in England, it has long been established that where the Crown seeks to tender an accused’s out‑of-court statement which contains both inculpatory and exculpatory parts, it must tender the entire statement, and the exculpatory portions are substantively admissible in favour of the accused: R. v. Hughes, 1942 CanLII 22 (SCC), [1942] S.C.R. 517, at p. 521. Fairness to the accused is the obvious rationale for the mixed statement exception. The exception is also based on the more pragmatic consideration that it is often difficult to determine which parts of a statement are inculpatory and which parts are exculpatory. [Emphasis added.]

See also R. v. Sunshine, 2013 BCCA 102 at para. 47 and R. v. Evans, 2012 BCCA 209 at para. 48.

[25]  The appellant submits that to give meaningful effect to Graham, Rojas and like authorities, a trial judge must apply the W.(D.) analytical framework to the out-of-court statement. In other words, they must approach the statement as they would testimony from the accused and ask themselves whether they believe any exculpatory parts. If so, the accused is entitled to an acquittal. If the judge does not believe the exculpatory parts, but those portions of the statement raise a reasonable doubt, the accused is also entitled to an acquittal. Finally, even if the exculpatory parts do not raise a reasonable doubt, but leave the judge unable to decide whom to believe in assessing the Crown’s burden of proof, the judge must acquit: R. v. C.W.H. (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 (B.C. C.A).

[27] The denial may have been a truthful reaction to the complainant’s allegations. On this point, the appellant emphasizes that a spontaneous statement made in the face of an accusation, when properly admitted, can “yield persuasive evidence of innocence”: R. v. Edgar, 2010 ONCA 529 at para. 67, leave to appeal to the SCC ref’d, 33984 (31 March 2011). At the same time, the appellant’s denial may have been an untruthful reaction, motivated by a desire to avoid admitting culpability in the presence of a church leader and the complainant’s mother. The judge could not be sure. As a result, she found the evidence equivocal.

[37] … where there are credibility findings on a vital issue to be made between conflicting evidence arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear that it is not necessary for the trier of fact to believe the evidence favourable to the defence on that trial issue. Rather, it is sufficient if, viewed in the context of all the evidence, the conflicting evidence leaves the trier of fact in a state of reasonable doubt as to the accused’s guilt. In that event, the trier of fact must acquit.

...

[39] Trial judges in a judge alone trial do not need to adhere slavishly to the W.(D.) formula. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W.(D.) instruction ….

[Emphasis added; internal citation omitted.]

[114] … a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if – viewed in the context of all of the evidence – the conflicting evidence leaves them in a state of reasonable doubt as to the accused’s guilt …. In that event, they must acquit.[Emphasis added; internal citation omitted.]

See also R. v. Cuthill, 2018 ABCA 321 at paras. 93–104 (and the cases cited therein), leave to appeal to the SCC ref’d, 38504 (23 May 2019); R. v. Baksza, 2019 ABCA 237 at para. 12; R. v. R.S.L., 2006 NBCA 64 at para. 100.

[36] First, after addressing the various defence challenges to the complainant’s credibility, the trial judge states at para. 39 of her reasons that she “accept[s] that sometime shortly after Canada Day, [the complainant] was in Mrs. Sanhueza’s car and she touched his penis with her hand over top of his pants”. The judge reaches this conclusion on the actus reus for the charged offences without any apparent substantive consideration of the appellant’s out-of-court statement. Instead, she moves directly from a finding that inconsistencies in the complainant’s evidence did not “go to the heart of the allegations … [or] affect his credibility” (at para. 38) to conclusive proof of indirect touching of the complainant’s penis. The appellant’s statement in the presence of the bishop denied the complainant’s version of events in its entirety, and, if accepted, it would render his evidence of intentional touching untrue. Even if not accepted, the denial could have raised a reasonable doubt about the complainant’s narrative, or left the judge unable to decide whom to believe.

[37] Second, at para. 47 of her reasons, the judge comments on the fact that the appellant did not testify and then turns her attention to the out-of-court denial, noting that she had been “asked to consider” that evidence in assessing the case. Casting the issue in this way, as a request for consideration, raises a serious question about whether the judge understood that the out-of-court denial, once tendered by the Crown, functioned as exculpatory evidence in the same way as evidence provided directly by an accused. As a result, the judge was obliged to consider and assess that evidence in her credibility determinations, applying W.(D.) principles. If the evidence was accepted, it raised a reasonable doubt about the appellant’s guilt, or the judge did not know whom to believe because of the evidence, the appellant was entitled to an acquittal.

[38] Finally, at paras. 49–50 of her reasons, the judge addresses the circumstances surrounding the meeting with the bishop and concludes that the appellant’s display of anger at that meeting and what she said are “capable of different interpretations” (RFJ at para. 50). Critically, she found that one of those interpretations is “consistent” with the appellant having been “falsely accused” (at para. 49). The judge indicates that because of the equivocal nature of the evidence, she cannot “place great weight” on it (at para. 50). However, she does not take the logical (and required) next step and ask herself whether the possibility that the appellant was responding truthfully to a false accusation, viewed in the context of the evidence as a whole, raises a reasonable doubt. As Rojas makes clear, the appellant was entitled to the benefit of any reasonable doubt, including a reasonable doubt about the truth of the out-of-court statement or any part of it (at para. 45). The judge did not have to believe the appellant’s denial to find a reasonable doubt. Her reasons are devoid of any such analysis. [Emphasis by Author] [39] These aspects of the reasons for conviction, in their cumulative effect, leave me unsure whether the trial judge properly related the concept of reasonable doubt to conflicting evidence on a vital issue arising from an out-of-court statement favourable to the defence: Smits at para. 37.

[48] However, this is a circumstance where the reasons reveal an acceptance of the complainant’s testimony on a material element of the charged offences without any apparent substantive consideration of the out-of-court statement and its exculpatory value. There is also a realistic possibility, gleaned from language used in the reasons, that the judge did not appreciate she was obliged to give the appellant the whole of the exculpatory advantages arising from the out-of-court denial, consistent with W.(D.) principles. Most importantly, she found that the appellant’s conduct and denial in the presence of the bishop was equally consistent with innocence, as guilt. That finding should have caused her to ask whether the denial raised a reasonable doubt, viewed in the context of the totality of the evidence, even if she did not believe it was true.

[51] On balance, I am persuaded that the trial judge did not assess the out-of-court denial in accordance with the principles underlying W.(D.). I cannot say, in the particular circumstances of this case, that there is no risk the burden of proof unintentionally shifted: Dick at para. 27. Accordingly, I would accede to the appellant’s first ground of appeal.

[53] For the reasons provided, I would allow the appeal from conviction, set aside the conditional stay on the conviction for sexual assault (entered pursuant to R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729), and order a new trial on counts one and three of the indictment.

R v C.D.R., 2020 ONSC 5030

[October 8, 2020] Charter s.7 - Entrapment  [Chris de Sa J.]

AUTHOR’S NOTE: This decision applies Ahmad from the SCC to a bait and switch approach by police to advertising in online classifieds. It is noteworthy that the trial judge here had already dismissed the entrapment application and then Ahmad was released by the SCC which caused him to change his mind. The case provided a good overview of the new Entrapment clarification from the SCC.

Overview

[1] The Applicant, C.D.R., was found guilty on July 29, 2019 on an indictment alleging three offences under Sections 172.1, 172.2, and 286.1 of the Criminal Code. On November 28, 2019, I dismissed an application to stay the proceedings on the basis of entrapment. 1 A detailed account of the relevant facts as they pertain to the current application can be found in that decision.

[3] On May 29, 2020, the Supreme Court of Canada released R. v. Ahmad, in which the Court reviewed the law of entrapment in the context of “dial-adope”operations.2

[5] I have considered the parties’ submissions. I have also considered the Supreme Court’s analysis in Ahmad as they pertain to the facts of this case. Given the clarifications made in Ahmad, I find the police actions here exceeded the standards of permissible state conduct. Accordingly, a stay of the charges is warranted.

Law of Entrapment

[7] Entrapment can be made out in two ways:

(i) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that the person is already engaged in criminal activity or pursuant to a bona fide inquiry: “opportunity-based entrapment”; or

(ii) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, the authorities go beyond providing an opportunity and induce the commission of an offence: “inducement-based entrapment”.

[8] In Ahmad and Williams, the appeals centered on the first branch of the doctrine – that authorities must not provide an opportunity to commit an offence without acting with reasonable suspicion or as part of a bona fide inquiry.

[10] In both cases, the information the police had prior to placing the call amounted to: (1) a name; (2) a phone number; (3) an allegation that the person behind this number was dealing drugs.  In both cases, this information came from anonymous, unsubstantiated tips of uncertain reliability.  Despite these similarities, the majority of the Supreme Court of Canada found that Mr. Williams was entrapped but Mr. Ahmad was not.

[11] In the case of Ahmad, the Court found that the initial conversation between the undercover and Mr. Ahmad was sufficient to corroborate the tip prior to the police inviting Mr. Ahmad to commit the offence.  In the case of Williams, however, the Court found that the police did nothing to substantiate the lead before asking Mr. Williams for drugs.  In the absence of any corroboration for the tip, the Court held that the police were not entitled to solicit drugs from Mr. Williams (invite the commission of the offence).

[12] In analyzing the two factual situations, the Supreme Court took the opportunity to clarify the requisite standard to be applied in assessing a claim of entrapment under the first branch of the doctrine (opportunity-based entrapment).  The Court explained at para. 42:

The question will always be the same: are there objective factors supporting a reasonable suspicion of drug trafficking by the individual answering the cell phone when police provide the opportunity to commit such a crime? Those factors may relate in part to reasonable suspicion of the individual, or of the phone number itself, or to both. [Emphasis added]

The Requirement for Reasonable Suspicion

[13] The standard of reasonable suspicion calls for an objective assessment of the information the police actually had beforeoffering an individual an opportunity to commit a crime.

[14] A “reasonable suspicion” requires a “constellation of objectively discernible facts:” giving the officer “reasonable cause to suspect” that a certain kind of crime was being committed by a particular person or in a particular place. (Ahmad, footnote 2)

[15] This constellation of factors must objectively indicate the possibility of the criminal behavior under investigation.   Mere hunches and intuition will not suffice (R. v. Barnes, 1991 CanLII 84, (SCC), [1991] 1 S.C.R. 449, at p. 460.)  An officer’s training or experience, however, can make otherwise equivocal information probative of the presence of the specific criminal activity (R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 47.)

Virtual Places

[10]           In both cases, the information the police had prior to placing the call amounted to: (1) a name; (2) a phone number; (3) an allegation that the person behind this number was dealing drugs.  In both cases, this information came from anonymous, unsubstantiated tips of uncertain reliability.  Despite these similarities, the majority of the Supreme Court of Canada found that Mr. Williams was entrapped but Mr. Ahmad was not.

[11]           In the case of Ahmad, the Court found that the initial conversation between the undercover and Mr. Ahmad was sufficient to corroborate the tip prior to the police inviting Mr. Ahmad to commit the offence.  In the case of Williams, however, the Court found that the police did nothing to substantiate the lead before asking Mr. Williams for drugs.  In the absence of any corroboration for the tip, the Court held that the police were not entitled to solicit drugs from Mr. Williams (invite the commission of the offence).

[12]           In analyzing the two factual situations, the Supreme Court took the opportunity to clarify the requisite standard to be applied in assessing a claim of entrapment under the first branch of the doctrine (opportunity-based entrapment).  The Court explained at para. 42:

The question will always be the same: are there objective factors supporting a reasonable suspicion of drug trafficking by the individual answering the cell phone when police provide the opportunity to commit such a crime? Those factors may relate in part to reasonable suspicion of the individual, or of the phone number itself, or to both. [Emphasis added]

The Requirement for Reasonable Suspicion

[13]           The standard of reasonable suspicion calls for an objective assessment of the information the police actually had beforeoffering an individual an opportunity to commit a crime.

[14]           A “reasonable suspicion” requires a “constellation of objectively discernible facts:” giving the officer “reasonable cause to suspect” that a certain kind of crime was being committed by a particular person or in a particular place. (Ahmad, footnote 2)

[15]           This constellation of factors must objectively indicate the possibility of the criminal behavior under investigation.   Mere hunches and intuition will not suffice (R. v. Barnes, 1991 CanLII 84, (SCC), [1991] 1 S.C.R. 449, at p. 460.)  An officer’s training or experience, however, can make otherwise equivocal information probative of the presence of the specific criminal activity (R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 47.)

Virtual Places

[19] The Court [in Ahmad] pointed out that virtual spaces raise unique concerns for the intrusion of the state into individuals’ private lives, because of the breadth of some virtual places (for example, social media websites), the ease of remote access to a potentially large number of targets that technology provides law enforcement, and the increasing prominence of technology as a means by which individuals conduct their personal lives.  The Court commented at paras. 37-39:

It follows that state surveillance over virtual spaces is of an entirely different qualitative order than surveillance over a public space. Technology and remote communication significantly increase the number of people to whom police investigators can provide opportunities, thereby heightening the risk that innocent people will be targeted. Online anonymity allows police to increasingly fabricate identities and “pose” as others to a degree that would not be possible in a public space like the Granville Mall. And they can do so anytime and anywhere, since cell phones are a 24/7 gateway into a person’s private life. Individuals must be able to enjoy that privacy free from state intrusion, subject only to the police meeting an objective and reviewable standard allowing them to intrude (see Barnes, at p. 481, per McLachlin J., dissenting but not on this point).

....

It is therefore important to carefully delineate and tightly circumscribe virtual locations in which police can provide the opportunity to commit a crime. As Lamer C.J. noted in Barnes, at pp. 462‑63, a reasonable suspicion can attach to a place only if it is defined with sufficient precision and “in many cases, the size of the area itself may indicate that the investigation is not bona fide.” Given that such an inquiry hinges on the presence of reasonable suspicion, the location must be “sufficiently particularized” (Chehil, at para. 30; see also S. Penney, “Standards of Suspicion” (2018), 65 Crim. L.Q. 23, at pp. 24 and 26). [Emphasis added]

[20] In deciding whether the police have “reasonable suspicion” in relation to a particular virtual space, the majority indicated that the following factors may be helpful: the seriousness of the crime in question; the time of day and the number of activities and persons who might be affected; whether racial profiling, stereotyping or reliance on vulnerabilities played a part in the selection of the location; the level of privacy expected in the area or space; the importance of the virtual space to freedom of expression; and the availability of other, less intrusive investigative techniques. See Ahmad, paras. 41-42.

Application to the Facts

[21] In this case, the Crown takes the position that the “Escort” section of Backpages is a circumscribed area within which it was objectively reasonable for police to suspect that juvenile prostitution offences were occurring. Given the extensive training and experience of the undercover officers, they had ample reason to believe child prostitution was taking place in York Region and Backpage.com was the location being used for the commission of those offences.  In short, Backpage.com (specifically the “Escort” section) was known to the police as the website being used in York Region to buy and sell children for sex as of 2017.

[22] I agree with the Crown that the police had a reasonable basis to believe that individuals were involved in the purchase of sexual services from juvenile prostitutes on Backpage.com.  As noted in my previous decision, I also find the decision to investigate Backpage.com for individuals seeking underage prostitutes was a legitimate police initiative. I agree with the Crown that the police must be given considerable latitude in investigating criminal activity.   This is particularly true where the crimes are serious and are otherwise difficult to investigate.  The Supreme Court addressed the particular concerns raised with child exploitation on the internet in R. v. Mills, 2019 SCC 22,...

[24] However, while juvenile prostitution was clearly occurring on the website, Backpage.com was not a website or “place” dedicated to underage prostitution.  Rather, while Backpage.com was known by police to be associated with juvenile prostitution, the evidence indicates that even within the Escort section, the overwhelming majority of ads and traffic did not relate to men seeking sexual services from underage girls.  On the contrary, the evidence indicates that most men were seeking sexual services from women who were of legal age.

[25] The situation here is not like the situation in Mills where the undercover officer held himself out to be a 14-year old girl at the outset, and accordingly could reasonably suspect the person contacting the ad would be looking for an underage girl.  Here the person contacting the ad was not “known” or even “reasonably suspected” to be looking for a girl who was underage.

[26] While the ads posted were created to attract individuals that were looking to purchase sexual services from younger women, the original ad specifies that Michelle was 18 years old. The female officer pictured in the ad also looks to be much older than 18 years old.  The female officer used in the ad photos was actually in her thirties at the time the photograph was taken.

[27] Given these features of the ad, there would be no reasonable basis to infer the caller contacting the ad would be looking for an underage girl.  In fact, DC MC confirmed that most males contacting the ad and had no interest in continuing with the conversation once they learned that “Michelle” was an underage girl.

[28] Turning to the text messages, DC MC did not state that “Michelle” was underage at the outset of the conversation.  Nothing in the original texts by the Applicant would indicate the Applicant was looking for an escort who was under the age of 18.  All of the initial communications between the Applicant and the undercover officer seemingly related to obtaining sexual services from a girl who was of age.

[29] It was almost 27 minutes into the conversation before the undercover revealed that “Michelle” was 15 years of age.  This revelation was made by the undercover after already making arrangements with the Applicant to provide sexual services at a specified cost.  When considered in this context, the undercover officer’s initial texts inviting the Applicant to purchase sexual services encouraged or enticed the Applicant into committing the offence prior to having any suspicion that the Applicant was involved in the crime under investigation.  The “bait and switch” approach used by the police here, in my view, is problematic and raises clear entrapment concerns.

[30] I accept that the police did not intend to mislead potential targets with the original ad, or with the photograph used.  Backpage.com would remove any ads which listed an escort to be underage.  The police were forced to use “coded” messages in the ad to draw in potential offenders.  The police added phrases like “tight”, “fresh” and “new” with a view to narrowing the pool of individuals that would be drawn to the ad.  This was a reasonable way to approach the investigation to reduce the risk of ensnaring unintended targets.

[31] However, in the circumstances, these coded phrases were known by police to draw in a much broader pool of individuals than simply individuals looking for “underage” girls.  As the evidence indicates, most males contacting the ad were looking for a female who was not underage.

[34] However, in this case, there was nothing in the initial texts between the undercover and the Applicant to suggest the Applicant was looking for an underage girl.  In the absence of reasonable suspicion, it was improper for the police to invite the Applicant to commit the offence.  As the Court explained in Ahmad at para. 60:

Our point about timing is fundamental. Reasonable suspicion is not formed retroactively. Rather, it is applied prospectively. From its inception, the entrapment doctrine has required that police officers have reasonable suspicion of criminal activity before providing an opportunity to commit an offence. Reasonable suspicion — like any level of investigative justification — can justify an action only on the basis of information already known to police (see, e.g., Swan, at para. 27; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 64; Ormerod and Roberts, at p. 46, fn. 31). It follows that the decision to intrude into an individual’s private life and offer them the opportunity to commit a crime is justified only if the grounds predate the measure. [Emphasis added]

[32] (sic) As noted above, providing individuals the opportunity to commit offences without the foundation of a reasonable suspicion unacceptably increases the likelihood that people will commit crimes when they otherwise would not have.

[35] Random virtue testing of this sort violates the principle that it is wrong for the police to manufacture crime because it “preys on the weakness of human nature” to entice individuals into offending (R. v. Looseley, [2001] UKHL 53, [2001] 4 All E.R. 897, at para. 58, per Lord Hoffmann).

[37] While it is acceptable for the police to employ trickery and various other investigative techniques to infiltrate the ongoing criminal activities of an offender, they are not to breed offenders by their actions or manufacture crimes for the purposes of prosecution.

[38] While there is no doubt that the Applicant failed the “virtue” test he was subjected to, and committed a crime by accepting the invitation, the police were not entitled to test the Applicant in the manner that they did.

R v Kohut, 2020 ONSC 6213

[October 15, 2020] – Charter s.8 - Confidential Informants and the Requirement of Corroboration (even where it's difficult) [G. Roberts J.]

AUTHOR’S NOTE: Justice Roberts was faced with review of an application for a Search Warrant in a drug case where police explicitly told the issuing Justice that they could not conduct normal surveillance on the apartment unit because of the comings and goings of other people that would alert the accused of police presence. The Justice granted the warrant without the usual surveillance necessary to confirm a CI tip. Thankfully the reviewing Justice did not lower the bar because of the police difficulty.  The law should not bend by lowering established standards of proof for the purpose of securing a conviction - once those standards are lowered for one matter, they are potentially lowered for all. 

Overview

[1] Susan Kohut was charged together with Aaron Doucette and Adrian Hunwicks with a number of offences following the execution of a search warrant at unit A201, 1268 King Street West, Toronto around 10:50 p.m. on the evening of July 25, 2018. Their trial is scheduled to begin later this fall. At this point in the proceedings, Susan Kohut challenges the constitutionality of the search, and the admissibility of the evidence obtained as a result, most importantly an illegal semiautomatic handgun, loaded with an over-capacity magazine, with a cartridge in the chamber, and approximately 8 grams of powder cocaine and 14 grams of crack cocaine.

[2] The search warrant turns on information provided by a confidential source (CS). The information to obtain (ITO) has been heavily redacted as a result. The Crown concedes that the redacted ITO cannot support the search, and applied to have me consider the unredacted warrant that was before the authorizing justice pursuant to step 6 of the procedure set out in R. v. Garofoli, [1992] 2 S.C.R. 1421.

[4] Counsel agreed to the following procedure for hearing the Garofoli application. First, a judicial summary of the redactions was created and disclosed to the defence. Second, I considered the defence application to cross-examine the affiant. Third, I considered whether the defence had sufficient information that the Crown could invoke step six of the Garofoli procedure. Finally, I considered the constitutionality of the search and the admissibility of the evidence obtained as a result.

Step 6 of Garofoli

[18] Almost all of the topics outlined for consideration at paragraph 84 of Crevier have been addressed, either in the redacted warrant or the judicial summary.  Together with disclosure and the assistance of Ms. Kohut, these permit defence counsel to make a substantial attack on the warrant.  For example, the judicial summary permitted defence counsel to make "in the alternative" arguments about many things, such as whether or not the CS had a criminal record, and, if so, what it contained.  However, the nature of some detail provided by the CS could not be summarized so as to allow defence counsel to challenge the confirmatory power of the information in police records.  To the extent this was the case, following paragraph 87 of Crevier, I did not rely on this detail in support of the authorization.  I will come back to this below.

Was the Search Constitutionally Compliant?

[20] Defence counsel attacked the facial sufficiency of the ITO, arguing that it did not meet the "3 Cs" from Debot because of a lack of confirmation.

[25] The "3 Cs" must be assessed in the totality of circumstances.  All three need not be present in every case, and weaknesses in one can be compensated by strengths in the other two.  The question is whether it was open to the authorizing justice to conclude that the information provided by the CS, considered in totality and together with the other information in the ITO, established reasonable and probable grounds that cocaine and/or other specified indicia of drug dealing would be found in unit A201, 1268 King Street West.

Compelling?

[26] The CS provided confidential information that Ms. Kohut was currently selling crack out of Unit A201, 1268 King Street West.  The CS described where unit A201 was located and what Ms. Kohut looked like (though fairly generally and omitting her age), and identified Ms. Kohut from a police photograph.  The unredacted warrant also described the manner in which Ms. Kohut sold crack cocaine, how the CS obtained their information, including whether or not it was first hand, and the time period in which it was obtained.  When I consider the unredacted ITO, I am satisfied that the information provided by the CS amounted to a fairly detailed and compelling tip.

Was the CS credible?

[27] Almost all the information bearing on the credibility of the CS has been redacted.  The redacted ITO together with the judicial summary suggest that the CS has no history of providing the police with reliable information.  In addition, the judicial summary indicates that the following information was placed before the authorizing justice:  information related to whether or not the CS was before the courts on any charges; the CS's motivation for providing information; whether or not the CS had a criminal record, and if so what it was; the fact that the CS has acknowledged that they will face criminal charges for making false reports to police.  I cannot disclose what the redacted information contains, but I can say credibility was an issue in this case.

Was the information provided by the CS confirmed/corroborated?

[28] The fact that the credibility component of the "3 Cs" was lacking was not necessarily fatal, as reasonableness is assessed in light of the totality of circumstances, and a weakness in one Debot component may be compensated by strength in the others.  But it meant that the police had to take careful steps to confirm the information provided by the CS before it would be reasonable to rely on it.  Unfortunately, I find the steps taken, and the confirmation obtained, insufficient in the circumstances.

[29] The steps actually taken to confirm the information provided by the CS were limited to the police checking their databases, and obtaining a photograph of the exterior of 1268 King Street West.  These steps revealed the following:

•       Ms. Kohut matched the description given by the CS (though, as noted, the CS had not indicated how old Ms. Kohut was).
•       Ms. Kohut lived at A201, 1268 King Street West and was bound by a recognizance of bail which required her to remain in her home every night between 9 pm and 7 am.
•       There are steps leading up to the front door of 1268 King Street West.
•       Ms. Kohut had a prior conviction for being in possession of crack cocaine.
•       Ms. Kohut was facing a number of charges relating to possession of crack cocaine, possession of crack cocaine for the purpose of trafficking, and trafficking in crack cocaine.  The charges stemmed from two investigations:

o   One in June of 2017, during which an undercover officer purchased crack cocaine either directly or indirectly from Ms. Kohut on four different days, outside, in the area of King West and Dufferin.

o   The other investigation dated from April 2016 when the police found Ms. Kohut and two others inside a basement apartment at 1409 King Street West when they executed a search warrant.  Police found "several pieces of crack cocaine throughout the room", scales and cellphones, and a further quantity of crack cocaine was found on Ms. Kohut during a strip search.

[30] In a section entitled "INVESTIGATIVE LIMITATIONS" the affiant acknowledged that normally when a CDSA warrant is sought, surveillance is conducted in order to attempt to observe drug transactions and drug customers.  The affiant explained that surveillance was not attempted in this investigation for the following reasons:

1268 King Street West is a residence with multiple units that has a steady stream of visitors and tenants entering and exiting the residence.  Subsequently without being inside the residence it is not possible to witness a "take away"….

The unit is highly frequented by potential customers of the drug dealers who are in a constant heightened state looking out for plainclothes officers who are attempting to conduct surveillance on the drug activity in the building.

Additionally any unfamiliar people in the building are easily identified by the drug dealers and potential drug buyers in the lobby and hallways.  Officers would have to be in the hallway of Susan KOHUT's unit to observe the drug activity but this scenario can not only jeopardize the investigation but also put tenants and officers safety at risk.  There are no known areas of concealment to afford officers first hand observations.

The affiant concluded this section as follows:

It is for these reasons that the drugs being sold and the dealers living inside, make this scenario so sensitive in nature and why I request this search warrant under less than ideal conditions.  It is inherently difficult for officers to conduct static surveillance due to the structure of the premise.

[31] The information that the affiant obtained from police records about Ms. Kohut's criminal history and previous involvement with police was credible and reliable and appropriately formed part of the totality circumstances bearing on whether it was reasonable to rely on the information provided by the CS.  But it was not enough in the circumstances.  Not only was there a heightened need for confirmation in the circumstances of this case, given weakness in the credibility strand of the Debot inquiry, but the information in police records provided little meaningful confirmation.  I will explain why.  In doing so, I want to be clear that I appreciate that circumstances cannot be parsed, considered in isolation, and then separately discounted.  Relevant circumstances must always be considered in totality.  In separating them out, I am simply trying to explain why they do not provide meaningful support for the credibility and reliability of the CS:

•       The fact that police records confirmed that Ms. Kohut lived at unit A201, 1268 King Street West provided some confirmation of the CS, but this was fairly public information.
•       The photograph of the front of 1268 King Street West, showing steps leading up to the front door, provided some confirmation for the CS's information that unit A201 "is on the second floor and to the right, after entering the main entrance. A number of stairs lead to the front entrance".  But the fact that steps lead up to the front door of the building is public information.  And the ITO is silent on what the inside of 1268 King Street West looks like, and whether A201 is in fact on the second floor, and to the right, after entering the main entrance.
•       The description the CS provides of Ms. Kohut as "female white, 5'6", 140-160 lbs, with dyed brown hair and brown eyes" was confirmed by police records and is consistent with Ms. Kohut's appearance.  But again, what she looks like is fairly public.  The description also lacks mention of her age (close to 60 at the time the ITO was sworn).

[32] The general fact that Ms. Kohut has a history of selling crack cocaine provides some circumstantial confirmation of the information provided by the CS.  But I do not believe that there is anything about this history that can provide specific support for the information provided by the CS.  I reach this conclusion for two reasons.  First, the nature of the information provided by the CS is not summarized in sufficient detail for defence counsel to challenge whether aspects of Ms. Kohut's criminal history could provide specific confirmation.  In saying this, I am not faulting the Crown, or the judicial summary.  This is simply a function of the step 6 process.  But to the extent that the nature of portions of the CS's information could not be summarized, these portions could not be relied upon in upholding the warrant:  Crevier, at para.87.  Second, in any event, having looked at the unredacted information provided by the CS, I do not believe that there is anything about Ms. Kohut's criminal history that could provide specific support for details provided by the CS.  While I cannot explain more than that for fear of revealing information that could jeopardize the identity of the CS, I can note that the information provided by the CS involved Ms. Kohut selling crack cocaine inside unit A201.  The criminal history involves observations of her selling it outside, and possessing it for the purpose of sale at a different location.

[33] There were no exigent circumstances at play in this case.  There was no imminent danger to anyone.  Nor was there a concern about the imminent destruction of evidence.  While it is true that crack cocaine "is a consumable substance", as the affiant put it, he also believed that Ms. Kohut was in the business of dealing it, suggesting that what was consumed would be replaced.  The constitutional standard that had to be met was whether there were reasonable grounds to believe that crack cocaine, and related paraphernalia connected to drug dealing, would be found in unit A201, 1268 King Street West.  The fact that the affiant believed that one obvious source of potential confirmation was not available did nothing to change the relevant constitutional standard, and the resulting need for confirmation, in order for it to be reasonable to rely on the tip received.

[34] When I consider the totality of circumstances, I find it was not open to the authorizing justice to conclude that there were reasonable grounds to believe cocaine and paraphernalia associated with drug trafficking would be found in unit A201, 1268 King Street West.  Accordingly, I find that the search conducted in reliance on the warrant violated Mr. Kohut's s.8 right to privacy.

Section 24(2) Analysis

Seriousness of the Charter-infringing Conduct

[40] Instead, however, the affiant appeared to rely on his explanation about the difficulty conducting surveillance to obviate the need for more confirmation.  And the authorizing justice appeared to accept this implicit conclusion.  This effectively subverted the warrant process by encouraging reliance on information from a CS in circumstances where reliance was not reasonable.

[41] The danger of the affiant's approach was exacerbated by the need to protect the identity of the CS.  While the credibility concern was visible to the authorizing justice, the exact reason for the concern was cloaked by the editing process, and then sanitized with general descriptive labeling during the Garofoli application.  But credibility remained an issue.  It meant that the police should not have relied on the information provided by the CS to apply for a search warrant without taking more steps to confirm the information.  And the authorization justice should not have signed off on the search warrant application.

[42] At a minimum, the state conduct in this case reflected negligence:  R. v. Szilagy, 2018 ONCA 695 at para.52.  I am inclined to situate what happened here as closer to deliberate misconduct as it appeared to reflect a choice not to do more investigation where more investigation was required before it would be reasonable to rely on the tip received:  R. v. Chioros, 2019 ONCA 388.  That choice reflected either a mis-understanding of the requisite constitutional standard, or an arrogance towards it.  It could not be re-written, or ignored, because it was difficult to meet.

Impact of the Breach on the Accused's Charter-protected Interests

[43] Ms. Kohut, like all Canadians, had a strong expectation of privacy in her home. It was deeply infringed by a search that should not have been permitted based on the information that the police had. The seriousness of the breach pushes toward exclusion.

Balancing

[45] In R. v. McGuffie, 2016 ONCA 365 at paras. 62-64 Justice Doherty considered the nature of the Grant lines of inquiry, and how they interact.  He explained that the first two inquiries tend to push toward exclusion.  They work in tandem in so far as their sum (not average) determines the "strength of the claim for exclusion".  The third inquiry tends to pull toward inclusion, especially where the evidence is reliable and critical to the Crown's case.

[46] In all the circumstances of this case, particularly where the first two lines of inquiry push strongly in favour of exclusion, I conclude that the evidence obtained as a result of the search in this case must be excluded.