This week’s top three summaries: R v Cathcart, 2019 SKCA 90, R v McColman, 2019 ONSC 5359, and R v Weiland, 2019 ONSC 5357.
R v Cathcart (SKCA)
[Sept 18/19] Charter s.7 - Overview & Lost Disclosure - Judicial Obligations to Assist Self-Represented Accused - 2019 SKCA 90 [Reasons by Kalmakoff J.A. with Richards C.J.S. and Barrington-Foote J.A. Concurring]
AUTHOR’S NOTE: The right to full disclosure exists in principle, but often the reality of prosecutions and police investigation causes the state to fail in its obligations through inadvertence, negligence, or worse. Here, Justice Kalmakoff for the SKCA gives a great overview of the disclosure obligations of the Crown, the ability of the Defence to seek redress for lost or destroyed disclosure and ultimately the judicial obligation to assist self-represented litigants in respect of the disclosure obligation of the Crown.
Pertinent Facts
[1] After a trial, Christopher Cathcart was convicted of two counts of unlawful confinement, contrary to s. 279(2) of the Criminal Code, two counts of attempted robbery, contrary to s. 344(1), and one count of breaching a bail undertaking, contrary to s. 145(3). He was acquitted on charges of dangerous driving and flight from police (R v Caisse(9 March 2018) Saskatoon, CRM 137/2018 (Sask QB)).
[4] Mr. Cathcart also argues that the Crown failed to make full disclosure, in violation of his right to make full answer and defence, guaranteed by s. 7 of the Charter, and that the trial judge erred by failing to make such a finding.
[10] Ms. Simpson told Mr. Cathcart, during their online communications, that she and her cousin Thalia Wedawin, who was staying at the same residence, wanted to buy some marijuana and go drinking. Mr. Cathcart drove to Ms. Simpson’s house in his SUV to pick them up. Ms. Simpson and Ms. Wedawin got into Mr. Cathcart’s vehicle. Two other women were in the vehicle at that time. Mr. Cathcart then drove to various locations in the city. At some point, Ms. Simpson purchased a bottle of vodka, which those in the vehicle shared as they drove around.
[11] Eventually, Ms. Simpson told Mr. Cathcart that she needed to use a bathroom and he stopped at a house so she could do so. At this house, Ms. Simpson purchased a small amount of cocaine from someone. Ms. Wedawin also entered the residence to use the bathroom. While Ms. Simpson and Ms. Wedawin were in the residence, the woman from whom Ms. Simpson had purchased the cocaine accused her of not paying for it. A tense exchange followed, while the woman demanded money or clothing from Ms. Simpson and Ms. Wedawin to satisfy the “debt”.
[13] Ms. Simpson and Ms. Wedawin said they wanted to get out of Mr. Cathcart’s vehicle, but were blocked from exiting by Mr. Caisse and Mr. Cote. The trial judge accepted that Mr. Cathcart drove the vehicle around the city while Mr. Caisse and Mr. Cote assaulted and threatened Ms. Simpson and Ms. Wedawin and demanded that they turn over their money and belongings. The trial judge also accepted that, while this was taking place, there was communication between Messrs. Caisse, Cote and Cathcart regarding money that they believed Ms. Simpson and Ms. Wedawin had in their possession.
[14] The incident came to an end when the vehicle was stopped by the police on the outskirts of Saskatoon. Ms. Wedawin and Ms. Simpson left the vehicle and approached the officers. Messrs. Caisse, Cote and Cathcart were arrested immediately thereafter. The trial judge accepted the evidence of the complainants and found that the three accused had acted in concert in committing the offences of unlawful confinement and attempted robbery.
[15] Although the trial judge accepted that Mr. Cathcart was the driver of his vehicle at the relevant times, he concluded that the charges of dangerous driving and flight from police had not been proven beyond a reasonable doubt.
Disclosure: General Principles
[24] The Crown has a broad duty to disclose relevant evidence and information in its possession to a person charged with a criminal offence. This duty is well established at common law, and is constitutionally entrenched in the right to make full answer and defence under the Charter: R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326[Stinchcombe]; R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66 [McNeil]; R v Dixon, 1998 CanLII 805 (SCC), [1998] 1 SCR 244 [Dixon]; R v Spackman, 2012 ONCA 905 (CanLII), 295 CCC (3d) 177 [Spackman].
[25] The Crown’s disclosure obligation is not absolute, but there are very few exceptions. The Crown is required to disclose all material in its possession to the defence, except that which is clearly irrelevant, privileged, or for which disclosure is otherwise governed by law: McNeil at para 18; R v Anderson, 2013 SKCA 92 (CanLII), 423 Sask R 61 [Anderson]. Where the Crown refuses to disclose information in its possession on the basis of such an exception, the Crown bears the burden of proving that it fits within the exception: R v Egger, 1993 CanLII 98 (SCC), [1993] 2 SCR 451 [Egger]; Stinchcombe; Anderson. This burden also applies to irrelevance. Where the Crown refuses disclosure on the basis that the requested material is irrelevant, the Crown must demonstrate that it is irrelevant, rather than requiring the defence to demonstrate relevance: R v Chu, 2016 SKCA 156 (CanLII) at paras 44–46, 344 CCC (3d) 51.
[26] The Crown is not required to disclose irrelevant information, but the threshold for relevance is quite low. The duty to disclose is triggered whenever there is a reasonable possibility that the information in the Crown’s possession will be useful to the accused in making full answer and defence. This includes evidence that helps the accused in exploring issues of credibility, properly investigating the case, and making tactical decisions such as whether to call evidence: R v Chaplin, 1995 CanLII 126 (SCC), [1995] 1 SCR 727; Egger.
[27] The right to disclosure is just one component of full answer and defence. Infringement of the accused’s right to disclosure is not always a violation of the right to make full answer and defence. In order to demonstrate constitutional infringement, and thus entitlement to an appropriate and just remedy under the Charter, an accused must generally show that actual prejudice to his or her right to make full answer and defence resulted from the non-disclosure: R v O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411 at para 74 [O’Connor]; R v Bjelland, 2009 SCC 38 (CanLII) at para 21, [2009] 2 SCR 651 [Bjelland]; Spackman at para 111.
Crown's Obligation to Preserve Evidence
[28] The Crown has no obligation to create evidence for disclosure, or to disclose that which does not exist, but the disclosure obligation includes a duty to preserve relevant evidence in its possession once it comes into existence.
[29] Where an accused establishes on a balance of probabilities that relevant evidence once in the Crown’s possession has been lost or destroyed, the onus shifts to the Crown to provide an explanation for the loss or destruction: R v Berner, 2012 BCCA 466 (CanLII), 329 BCAC 275 [Berner]. If the Crown’s explanation satisfies the trial judge that the evidence has not been destroyed or lost through unacceptable negligence or deliberate malfeasance, the duty to disclose has not been breached.
[30] If the explanation offered by the Crown for the loss or destruction of evidence is insufficient to absolve it of unacceptable negligence or deliberate malfeasance, then a breach of s. 7 of the Charter is established: R v La, 1997 CanLII 309 (SCC), [1997] 2 SCR 680 [La]; Berner. In such circumstances, there is no additional requirement that the accused establish actual prejudice resulting from the loss of the evidence: R v Carosella, 1997 CanLII 402 (SCC), [1997] 1 SCR 80 at para 40.
[31] In assessing the adequacy of the Crown’s explanation, the court must analyse the circumstances surrounding the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. A key factor in that consideration is the relevance the evidence was perceived to have at the time, as the police cannot be expected to preserve everything that comes into their hands on the off-chance it will be relevant in the future. Even the loss of relevant evidence may not result in a breach of the duty to disclose if the conduct of the police is reasonable. But the degree of care expected in the preservation of evidence will generally be commensurate with its relevance: La at para 21.
[32] Where the actions of the Crown or the police in failing to preserve evidence involve conduct that violates those fundamental principles underlying the community’s sense of decency and fair play, the loss or destruction of evidence is an abuse of process and violates s. 7 of the Charter. This may include, but is not limited to, such actions as deliberate destruction of material for the purpose of defeating the disclosure obligation: Berner at para 80. Abuse of process may also be found in other serious departures from the Crown’s duty to preserve material for disclosure purposes. In some cases, an unacceptable degree of negligent conduct may suffice: La at para 22.
[33] Where a breach of s. 7 is established, the question becomes one of remedy. A stay of proceedings is an exceptional remedy, limited to the clearest of cases, where the prejudice to the accused’s right to make full answer and defence cannot otherwise be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were permitted to continue: R v Regan, 2002 SCC 12 (CanLII), [2002] 1 SCR 297 [Regan]; O’Connor; Canada (Minister of Citizenship & Immigration) v Tobiass, 1997 CanLII 322 (SCC), [1997] 3 SCR 391 [Tobiass].
[34] Irremediable prejudice to the accused’s right to make full answer and defence may result, in extraordinary cases, even where the Crown has given an adequate explanation for the loss or destruction of evidence. This will occur where, notwithstanding the adequacy of the Crown’s explanation, the loss of the evidence in question is so prejudicial to the ability to make full answer and defence that it impairs the accused’s right to receive a fair trial. In such circumstances, where the accused establishes that the loss or destruction of the evidence has caused actual prejudice to his or her right to make full answer and defence, a stay of proceedings may be the appropriate remedy: La at paras 24–25.
Application to the Case
[51] During the hearing of the appeal, Mr. Cathcart acknowledged that by January of 2018, well before the trial began, he was in possession of all the relevant disclosure, with the exception of four items:
(i) three minutes of ICCS video recording from one of the police cars involved in pursuit of Mr. Cathcart’s vehicle at the time of the incident;
(ii) eleven minutes of audio recordings from the body microphone worn by Sgt. Aaron Moser at the time of the incident;
(iii) the video/audio recording of the front service area of the Saskatoon Police Service station [service area recording], during the time that the complainants were present prior to providing formal statements to the police; and
(iv) a USB storage device, which contained disclosure material relating to charges Mr. Cathcart had faced in relation to a previous incident (Mr. Cathcart referred to these as the “Provincial Court charges”).
The Service Area Recording
[76] In part, this is because Mr. Cathcart’s diligence, or lack thereof, in raising and pursuing this disclosure issue must be considered in light of the fact that he represented himself at trial. While it is clear that an accused who decides to proceed without the assistance of a lawyer cannot, after the fact, attack a conviction on the basis that he or she did not have representation as effective as what might have been provided by counsel, a trial judge has an obligation to ensure that a trial is fair and that there is no miscarriage of justice: R v Harris, 2009 SKCA 96 (CanLII), 331 Sask R 283 [Harris]. Part of a trial judge’s duty in that respect is to render some assistance to those who are self-represented so that defences available to such individuals are presented with full force and effect: R v Bialski, 2018 SKCA 71 (CanLII) at para 65, 364 CCC (3d) 485 [Bialski]; R v Candido, 2015 SKCA 104 (CanLII) at para 13, 467 Sask R 128.
[77] Deciding how much assistance a judge should give to a self-represented accused person is an exercise in discretion. A trial judge is not counsel for the accused, and cannot provide assistance of the sort that counsel would furnish, but there is a duty is to ensure that the accused has a fair trial. This duty is circumscribed by a standard of reasonableness: R v Richards, 2017 ONCA 424 (CanLII), 349 CCC (3d) 284 [Richards]. What this standard requires from a trial judge will vary from case to case. It will depend on the dynamics of the trial in question, the circumstances of the particular accused, and the nature of the charges: Harris at para 29.
[79] In this case, Mr. Cathcart raised a potential Charter issue for the trial judge to consider. On its face, the service area recording appeared to be something containing relevant information that could assist Mr. Cathcart in cross-examining witnesses and challenging the credibility and reliability of their evidence. It could also have assisted him in making other strategic decisions about his defence. A failure to disclose that evidence (or failure to preserve it for disclosure) was potentially a violation of Mr. Cathcart’s rights under s. 7 of the Charter.
[80] It is true that Mr. Cathcart did not give notice, prior to trial, of his intention to bring a Charter application but, as was noted in Bialski, the absence of such a notice is not necessarily fatal. Mr. Cathcart had clearly raised an issue of importance to his defence, and one which involved a potential breach of his Charter rights. In the circumstances, the trial judge was obligated to provide some assistance to ensure that the issue was properly dealt with. If this required an adjournment to allow Mr. Cathcart the opportunity to make a formal application and give proper notice, and to permit the Crown to respond, then an adjournment should have been granted.
[81] Furthermore, the Crown did not dispute the relevance of the service area recording. Crown counsel answered Mr. Cathcart’s assertion about non-disclosure by saying that the service area recording, although it once existed, was no longer available to be disclosed because it had been overwritten ten days after it was made. In the circumstances, the trial judge was required to dig deeper. Mr. Cathcart had identified relevant material, which the Crown had not preserved for disclosure purposes. There was, therefore, evidence of a potential breach of Mr. Cathcart’s rights under s. 7 of the Charter. Whether or not a breach could have been established would have required the trial judge to consider the adequacy of the Crown’s explanation for the loss or destruction of the evidence, and also whether or not Mr. Cathcart’s ability to make full answer and defence was prejudiced. In the circumstances, the trial judge had an obligation to provide reasonable assistance to Mr. Cathcart to raise the issue, invite full submissions and inquire into whether there was a breach. The failure to do so was an error.
R v McColman (ONSC)
[September 16/19] Charter s.9 - Police Stop to Check for Licence & Registration on Private Property - 2019 ONSC 5359 [Gareau J.]
AUTHOR’S NOTE: There appears to be a trend in criminal jurisprudence to enhance the recognition that police powers are transformed by the invisible line that surrounds private property. Following the SCC decision in Le, Justice Gareau, sitting in summary conviction appeals re-affirms an important distinction between police powers under highway traffic regulations when a vehicle is on private property as opposed to a highway. Police attempts to use their traffic safety powers on private property are not only subject to review on the basis they are a ruse for another investigation, but also the powers simply vanish at the property line and appear to be unavailable.
Pertinent Facts
[6] The facts of this case are straightforward. On March 25, 2016 at approximately 12:30 a.m., Constable Lobsinger of the Ontario Provincial Police observed an all-terrain vehicle (ATV) parked at a store known as Rob’s Variety in the vicinity of the Thessalon First Nation on Maple Ridge Road. The appellant was the driver.
[7] As the ATV left the parking lot of Rob’s Variety, Constable Lobsinger turned his vehicle around and followed the ATV for approximately one minute before it turned onto Biish Road and entered into a municipal address at 30 Biish Road. This location is a private driveway on private property.
[8] After stopping the McColman vehicle in the private driveway, Constable Lobsinger spoke to Walker McColman and testified that he observed signs of impairment as follows:
(a) he observed McColman to be hanging onto the side of the ATV with his right hand;
(b) he observed a strong odor of an alcoholic beverage on McColman;
(c) he observed McColman’s knees to be buckling;
(d) he observed McColman’s eyes to be red and bloodshot;
(e) he observed McColman to be mumbling while speaking to him.
[9] Constable Lobsinger arrested Walker McColman for impaired driving of a motor vehicle at 12:36 a.m., having first observed him outside Rob’s Variety Store at 12:30 a.m.
[10] It was also the evidence of Constable Lobsinger that he did not see any signs of impairment prior to stopping the ATV vehicle in the private driveway at 30 Biish Road.
[11] In his evidence at the trial, Constable Lobsinger testified that the ATV was not stopped for highway traffic concerns, and that he stopped the ATV solely under his authority under the Ontario Highway Traffic Act, which authorized him to stop vehicles to check for sobriety of the operator.
Powers to Stop Vehicles Under Highway Traffic Legislation and s.9 of the Charter
[20] Section 48(1) of the Ontario Highway Traffic Act, 1993, reads as follows:
A peace officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purposes of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code (Canada).
[22] Under section 1(1) of the Highway Traffic Act “driver” is defined as “a person who drives a vehicle on a highway”.
[23] “Highway” is defined in the Highway Traffic Act as including,
[a] common and public highway street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof.
[24] For the appellant to be able to be found to be a “driver” within the meaning of the Highway Traffic Act, it must be found that he was driving a vehicle on a highway, as defined in the Act.
[25] The issue of what is or is not a highway was considered by the Ontario Court of Appeal in R. v. Hajivasilis, 2013 ONCA 27 (CanLII) (Ont. C.A.). At paragraph 10 of that decision, Doherty J.A. made the following observation:
The phrase “intended for or used by the general public for the passage of vehicles” limits the meaning of “highway”. If a vehicle is being driven on property to which the general public does not have access or if that access is for a limited purpose other than passage (such as parking), the property will not fall within the meaning of “highway”. Most privately owned lots are not “highways” as defined in the HTA.
[28] On an appeal to the Superior Court of Justice in R. v. Nield, [2015] O.J. No. 4810, Justice Fregeau considered whether the appellant was a “driver” as defined in the Highway Traffic Act. In that case a police officer followed the accused’s vehicle and parked behind it when it stopped in a parking lot. Fregeau J. concluded that the accused was no longer a “driver” as defined by the Highway Traffic Act once his vehicle was parked in a hotel parking lot.
[29] In considering the aforementioned jurisprudence and the definitions of “driver” and “highway” under the Highway Traffic Act, I am of the view that under section 48and 216 of the Highway Traffic Act the police do not have the statutory authority to stop drivers on private property unless they have reasonable and probable grounds to believe that the driver has committed an offence. For the learned trial judge to conclude otherwise, as set out in paragraphs 54, 55 and 56 of his reasons released December 19, 2017, constitutes a reversable error in law.
[30] Although this does not form the basis of the learned trial judge’s decision, the Crown argues that the police officer had the appellant’s implied consent to enter onto his property when he did not object, and common law authority to detain him. I might accept the argument that there is an implied invitation to enter the appellant’s property if Constable Lobsinger had a legitimate reason for entering the appellant’s property in the first place.
[31] The comments of Rosenberg J.A. in R. v. Lotozky, 2006 CanLII 21041 (ON CA), 210 C.C.C. (3d) 509 (Ont. C.A.) at paragraph 35 are important in this regard. The Ontario Court of appeal at paragraph 35 states that:
The fact that the police officer intends to pursue an investigation on the driveway, at least if the investigation relates to a motor vehicle, does not in my view exceed the bounds of implied invitation, provided that the officer has a legitimate basis for entering on the driveway. [Emphasis added.]
[32] In the decision of R. v. Dillon, [2006] O.J. No. 1366 (Ont. SCJ), Molloy J. provides an extensive analysis of the common law right to detain for investigative purposes.
[35] With respect to the overarching principles on the issue of the implied license to enter property under common law, Molloy J. at paragraph 40 in Dillon makes the following observation:
[40] From these cases, I conclude, as a matter of general principle, that the extent of the implied license to enter private property depends on the nature of the property and on the purpose of the entry. At the heart of the objection to police entering private property for police business is a concern for the invasion of the privacy interest of the property owner. That privacy interest is significantly diminished where the property is one that is generally open for any member of the public to enter. At the lowest end of the spectrum, in my view, would be a parking lot of a commercial establishment such as the one at issue here where the detainee is himself there by license, as opposed to being the owner or tenant of the property with a right to exclude others. There can be virtually no privacy interest on the part of a member of the general public who happens to be parked on a lot adjacent to a public street. The accused, Mr. Dillon, was not on his own private property; he was on a parking lot owned by a business catering to the general public. His expectation of privacy in the parking lot can surely be no greater than his expectation of privacy had he parked at the street curb a few meters away. He had no greater right to be in the parking lot than did the police officers, and no right to exclude the officers from the lot. Indeed, in these circumstances, given the fact that he did not have a valid driver’s license and had been suspended from driving for life, it may well be said that he had far less right to be there than did the police officers, and that the deemed invitation to enter from the business owner did not extend to an unlicensed driver, to say nothing of an impaired driver.
[48] The Court of appeal noted in Simpson the necessity of strictly limiting the circumstances in which the police power referred to in Dedman will apply. In order to randomly detain a motorist without reasonable grounds for suspecting that person has committed a crime, the police must be acting legitimately out of a concern for the protection of the public in relation to the operation of a motor vehicle: Simpson at p. 492-493; Ladouceur at p. 44; R. v. Mellenthin (1992), 1992 CanLII 50 (SCC), 76 C.C.C. (3d) 481 at 487 and 490, [1992] 3 S.C.R. 615, 16 C.R. (4th) 273 (S.C.C.). [Emphasis added.]
[40] In both the Nield and Dillon decisions, the court found that on the facts of those cases the police were acting within the implied license to enter and therefore were acting within their common law authority to detain the accused for investigative purposes. Accordingly, there was no breach of the accused’s rights under section 9 of the Charter found in these two decisions. I am of the view that the same result cannot be reached in the case before me involving Mr. McColman. There are clear distinctions between the case involving Mr. McColman and those involving Nield and Dillon.
[41] Firstly, in Mr. McColman’s case the detention occurred on the accused’s private property upon which he travelled, and the police followed him on. The fact that the detention occurred on private property, in my view, elevates the appellant’s privacy rights which was not the case in either Nield or Dillon, where the detention occurred in a parking lot.
[42] Secondly, there was no public protection interest being served in following Mr. McColman onto his private property. At that point, Constable Lobsinger had no knowledge that the appellant had been drinking and made no personal observations to suggest to him that the appellant had been drinking or was impaired. As indicated by Constable Lobsinger in his evidence the sole reason that he followed the appellant onto his private roadway was to exercise his authority under the Ontario Highway Traffic Act to see if the appellant impaired. When the appellant had entered his private driveway the public interest no longer needed to be protected. There is no evidence to suggest that the appellant intended to take the ATV vehicle back on to the public road. Constable Lobsinger was following the appellant on his property and detained in the hope that he would acquire the grounds to arrest him, not out of legitimate concern for the protection of the public in relation to the operation of a motor vehicle.
[43] In balancing interests between the protection of the public by the police and the protection of the appellant’s privacy interest and his constitutional right to be protected against arbitrary detention, the facts on this appeal clearly favours protecting the privacy interests of the appellant. Simply put, Mr. McColman was in his driveway and not on a highway or public roadway. There were no interests of the public that had to be protected at that point in time that would justify the actions of the police authorities or couch them with implied license or authority under the common law.
Conclusion on s.9 & s.24(2) Analysis
[44] Constable Lobsinger did not have the statutory authority under sections 48 or 216 of the Ontario Highway Traffic Act to stop Walker McColman on private property unless he had formed reasonable grounds and had articulable cause to believe that he had committed an offence. Mr. McColman was no longer a “driver” as defined in the Ontario Highway Traffic Act when he left the public roadway and turned onto his private driveway. Accordingly, Constable Lobsinger had no statutory authority under the Highway Traffic Act to randomly detain him in order to check his sobriety.
[47] I am of the view that in the absence of such statutory or common law authority that Officer Lobsinger breached the appellant’s constitutional rights under section 9 of the Canadian Charter of Rights and Freedoms, and that the learned trial judge erred in law when he concluded otherwise.
[49] The actions of the police are serious. They pursued the appellant onto private property when they had neither the statutory or common law authority to do so. The Charter-protected interest to be protected is one of privacy. The expectation of privacy on one’s own property is a high one. As to the third test set out in Grant, clearly society has an interest in having the matter adjudicated on its merits. Having said that, when all three factors are balanced, the balance favours the exclusion of evidence.
R v Weiland (ONSC)
[September 17/19] – Invitation to Sexual Touching - Police Sting Operation – 2019 ONSC 5357 [Di Luca J.]
AUTHOR’S NOTE: Following on the SCC's decision in Morrison, Justice Di Luca applies the test the remains to a police internet sting operation. Ultimately, the accused is found not guilty on the basis of a reasonable doubt as to his belief that the person he was communicating with would be underage. The case provides an excellent blueprint for defence counsel to use the decision to aid clients in similar circumstances.
Pertinent Facts
[2] On an earlier occasion he had responded to a certain ad for sexual services found on Backpage.com. His text had received no response. He decided to try his luck again, and this time he received a response from a purported sex worker named “Jamie.” He engaged Jamie in a discussion about sexual services. During this text conversation, Jamie indicated that she was 15 years of age. Mr. Weiland eventually agreed to attend a nearby hotel. He arrived at the designated hotel room armed with cash and condoms.
[3] To his great surprise, he was not greeted by Jamie. Instead, he was greeted by several members of the York Region Police Service, one of whom very quickly took Mr. Weiland to the ground and arrested him.
[4] Unbeknownst to Mr. Weiland, the York Region Police Service was running a sting operation known as Project Raphael. The objective of Project Raphael was to target those seeking to obtain sexual services from underage prostitutes. As part of this operation, investigators posted various advertisements for female escorts on Backpage.com. The ads offered the services of a female escort with a stated age of 18, and provided a cell phone number for interested parties to contact. Once interested parties texted the number provided, an undercover officer would engage in a discussion around the provision of sexual services. At some point during the conversation, the officer would “reveal” that “her” true age was 14 or 15 and, if things went according to plan, the target would continue the conversation and then set up a rendezvous.
[7] Mr. Weiland testified, and the core of his defence is that he did not believe that “Jamie” was underage despite the fact that she stated she was 15 years old.
[8] Shortly before this trial was heard, the Supreme Court of Canada released its decision in R. v. Morrison, 2019 SCC 15 (CanLII). This decision declared the Criminal Codeprovisions establishing a presumption of belief in a stated age unconstitutional. As a result, this case is to be decided without the benefit of the presumption, but with the guidance of the Supreme Court’s discussion on the required elements of the offence that the Crown must prove beyond a reasonable doubt.
The Advertisement
[10] Viewing and posting ads on the website required acknowledgement of an age disclaimer. The ads posted all indicated that the subject of the ad is 18 years of age. The website would not let some under the purported age of 18 post an ad.
[12] Inspector Truong composed the ad and first posted it at approximately 8:30 p.m. The ad was re-posted at 11:02 p.m. A copy of the ad was tendered as Exhibit 12. It includes three photographs of a female police officer posing as a sex worker. Her face is not revealed in the pictures. In the first photo she is on a bed wearing what appears to be a sports bra and yoga style shorts. In the next two photos she is wearing a tight dress. It is difficult from the images to discern her actual age. While the person depicted in the photos could be a 15 year old, she could equally or perhaps more probably be in her 20’s. In fact, the female officer who posed for the photo was in her mid to late 20’s when the photographs were taken.
[13] In addition to the photographs, the ad included the following text:
YOUNG Shy FRESH and NEW – MARKHAM tonight Highway 7 and Woodbine – Be gentle - 18
...
Jamie 🙂
Poster's age 18
The Conversations
[17] This time, he received a response and the following text conversation ensued:...
23: 21 — Jamie: yes but are you ok if im not quite 18 yet? Some guys are ok and some aren't Id like to be honest 23: 22 — Weiland: How old are you?
23: 22 — Jamie: 15 but I look older 23: 23 — Weiland: Your 15?
23: 23 — Jamie: yes 23: 24 — Weiland: Are you sure you know how to have sex at 15?
23: 26 — Weiland: I'm 19 so we're both young
...
23: 29 — Weiland: Can you send me some sort of picture?
23: 30 — Jamie: no hun im trying to be safe sorry 23: 30 — Weiland: Lol how do I know your not a cop?
23: 30 — Weiland: How could you book a hotel at 15? You can't even get a credit card till 18.
[18] Mr. Weiland then took a taxi to the hotel location. He sent a further text indicating he had arrived and he was provided a hotel room number. He made his way up to the room, knocked on the door and was promptly arrested.
Mr. Weiland's Evidence
[22] Mr. Weiland is 29 years old. He was 26 years of age at the time of the offence. He is single and lives with his father. He has no criminal record. He has a high school education and took some additional college courses in golf course management.
[23] Four months prior to the offence date, his mother tragically took her own life. Mr. Weiland was suffering from depression and was drinking regularly.
[27] Mr. Weiland did not have a great memory about the texts he sent and received. He was intoxicated at the time and the events took place over three years ago. That said, he indicated that when “Jamie” said she was 15, he did not believe her. He thought she was lying about her age and so he lied about his age, indicating he was 19 years old. He could not really explain why he indicated he was 19.
[28] He indicated that when Jamie said she was 15, he went back and looked at the picture posted in the ad and came to the conclusion that the person in the photos looked like she was over 20 years old. He asked Jamie to send him a photo so he could see what she looked like and he asked questions about whether she knew how to have sex and about her ability to have a credit card to rent a hotel room.
[29] Mr. Weiland explained that he was “pretty sure” the person he was speaking with was over 18, but he was not 100% sure. He explained that there was “a part of him” that was not totally sure.
[31] In view of the questions he asked and the answers he received, he was 85-90% sure that the person he was speaking with was over the age of 18. At no time was he sure that he was speaking with an adult. He decided to attend the hotel room and his plan was to visually verify that the person was of age. He indicated he had no interest in underage sex, and that if he saw an underage person at the hotel he would have simply left.
The New Legal Framework - The Belief Component of Mens Rea
[40] One issue in Morrison was the constitutionality of Section 172.1(3). That section of the Code created a presumption of belief in a stated or communicated age. In the context of a luring sting, once an undercover police officer communicated that he or she was of a certain age, the accused was presumed to believe that stated age. The Crown could rely on this presumption to establish the requisite mens rea for the offence. Of course, it remained open to the accused to rebut the presumption by showing that he or she took reasonable steps to ascertain the age of the person they were communicating with, and that they believed the person to be under the legal age.
[41] Writing for the majority, Moldaver J. found the presumption to be unconstitutional as it permitted an accused to be convicted even in cases where the trier of fact was left with a reasonable doubt about the accused’s belief in the stated age.
[42] One area of concern for Moldaver J. was the commonly accepted fact that persons operate on the Internet under fictitious guises, particularly when it comes to sexual matters. In this regard, Moldaver J. adopted the comments of the Court of Appeal in Morrison, wherein the Court stated at para. 60:
There is simply no expectation that representations made during Internet conversations about sexual matters will be accurate or that a participant will be honest about his or her personal attributes, including age. Indeed, the expectation is quite the opposite, as true identities are often concealed in the course of online communications about sexual matters.
[44] In this regard, Moldaver J. explained that in the context of a police sting where there is no actual underage person in the communication, the offence of child luring has three essential elements: (1) an intentional communication by means of telecommunication; (2) with a person who the accused believes is under the requisite age; and (3) for the purpose of facilitating the commission of a designated offence with respect to that person. The Crown must prove each of these elements beyond a reasonable doubt.
[46] Importantly, Moldaver J. notes that proof of recklessness will not suffice. Recklessness is a state of mind where a person who is “aware that there is a danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk”: see R. v. Sansregret, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570at p. 582, as cited by Moldaver J. in Morrison at para. 100.
[50] In accordance with Morrison, the Crown must prove beyond a reasonable doubt that the accused believed, either actually or on the basis of willful blindness, that the person they were communicating with was under the required age which is 18, 16 or 14, depending on the subsection of the offence provision relied on.
[51] If the Crown fails to prove belief on either basis, the accused is acquitted.
[52] Aside from the Crown’s obligation, the accused is permitted to raise an affirmative defence that he or she believed that the person they were communicating with was over the required age. However, in order to do so, the accused must point to some evidence giving an air of reality to a claim that they took reasonable steps to ascertain the age of the person they were communicating with.
[53] According to Morrison, at para. 116, the defence that the accused believed the person he was communicating with was over the legal age would operate in practice as follows:
- First, in order to raise the defence, the accused bears the evidentiary burden of pointing to some evidence from which it may be found that he or she took reasonable steps and honestly believed the other person was of legal age. In other words, the accused must show that the defence has an "air of reality".
- Second, if the accused discharges his or her evidentiary burden, the defence is left with the trier of fact, and the Crown then bears the persuasive burden of disproving the defence beyond a reasonable doubt.
- Third, regardless of whether the defence can be considered, the trier of fact must ultimately determine whether the Crown has proven beyond a reasonable doubt that the accused believed the other person was underage.
Application to the Case
[56] There is no issue that Mr. Weiland intentionally communicated with “Jamie” for the purpose of engaging in sexual activity. The only real issue is whether he believed Jamie when “she” indicated that she was 15 years old.
[59] I start my analysis by assessing Mr. Weiland’s evidence. In short, he was not a great witness. His evidence suffered from obvious and significant memory gaps. He struggled to describe what he was thinking and why he was doing certain things during the text messages. Some of the answers he gave bordered on the nonsensical. To cite one example, he maintained that the reason why he asked “Jamie” her height and weight was to ascertain her age. He maintained that the answers he received helped assure him that she was not 15 years of age, though he could not explain how height and weight could be used to differentiate a 15 year old from a 20 year old. This evidence made no sense and was clearly contrived to support his defence. The reality is that he likely asked these questions to ascertain whether the person’s physical characteristics matched his personal preferences.
[62] I turn next to assessing the core issue in this case and that is whether the Crown has proven that at the time of the communication, Mr. Weiland believed the person he was in communication with was under the age of 18.
[63] I can deal with the issue of willful blindness quickly. Simply stated, this is not a willful blindness case. Mr. Weiland responded to the assertion that Jamie was 15 by asking questions on that issue. He did not turn a blind eye or place himself in a state of deliberate ignorance.
[64] The more difficult question is whether he believed the assertion that Jamie was 15, or whether he acted recklessly aware of the risk that Jamie could be 15.
[65] While this case is a close call, I am ultimately not satisfied that the Crown has proven the requisite degree of mens rea beyond a reasonable doubt. In short, I have a reasonable doubt on the basis that Mr. Weiland acted recklessly. While I accept that one available conclusion on the evidence is that Mr. Weiland believed that Jamie was 15 and he did not care, an equally and perhaps more available conclusion is that he was aware of the risk that Jamie was 15 and he proceeded in the face of that risk. I reach this conclusion for the following reasons:
a. The Backpage ad refers to the ad poster as 18 years of age, and the text of the ad also states 18 years of age. That said, I acknowledge that the text of the ad uses language suggestive of a young, though not necessarily unlawful age. I also acknowledge that the stated age of a participant is often presumed to be fictitious, much like other aspects of an ad for a sex worker.
b. The photos of the female posing in the ad do not readily or clearly depict someone who is underage.
c. Once “Jamie” reveals her age as 15, it is clear that Mr. Weiland asks questions suggesting he does not believe her. For instance, he asks whether she even knows how to have sex at age 15. He asks how she managed to rent a hotel room since you need to be 18 to have a credit card. He asks if she is a police officer. These questions support a clear inference that he does not believe that she is 15 years old, and instead believes her stated age is fictitious....
g. While I have concerns about aspects of Mr. Weiland’s evidence, I do accept one aspect of his evidence as at least supporting a reasonable doubt. I accept his evidence that he was pretty sure he was dealing with an adult, but not 100% certain. Mr. Weiland asserts and I accept that he was aware of the risk that the person he was communicating with was under the legal age, but he proceeded to attend at the hotel despite the risk. Viewed in the context of the whole of the evidence, his assertion makes sense and is logical.
[66] The core issue in this case is whether the Crown has proven beyond a reasonable doubt that Mr. Weiland “believed” that “Jamie” was underage at the time of the communication. The text communications suggest that during these communications, he does not believe the stated age of 15. I accept that by the end of the communication an inference arises that Mr. Weiland may have believed that Jamie was 15 and may have decided to attend at the hotel room nonetheless. But that is not the only inference. Another inference, and perhaps a stronger inference, is that he was simply aware of the risk that she might be underage and he decided to proceed in the face of that risk.
