This week’s top three summaries: R v Bouvette, 2023 BCCA 152: #disclosure and appeals, R v Breault, 2023 SCC 9: #refusal and ASD, and R v Gala-Nyam, 2023 ONSC 2241: #racialprofiling

This week's top case deals with expert evidence and disclosure obligations. For great general reference on the law in this area, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.

R v Bouvette, 2023 BCCA 152

[April 12, 2023] Charter s.7 Disclosure Obligations, Guilty Plea Overturned, White Burgess Expert Concerns [Fitch, Voith and Skolrood JJ.A.]

AUTHOR’S NOTE: The Charter s.7 disclosure obligation is a serious and continuing mandate on the prosecution. It is one of the reasons why Canada is not afflicted with the frequent Brady violations that occur in the United States. This case is an exception to that general rule. Here, prosecutors failed to disclose parts of disclosure that reflected negatively on the Medical Examiner on whose opinion they relied in order to negotiate a plea deal with the accused. She pled guilty not knowing the extent of dispute with Medical Examiner's opinion and the degree he went to to defend his reputation. This defence of reputation went so far as to raise concerns that trial counsel were unable to properly assess his fitness as an expert under the bias principles in White Burgess. This case discusses the continuing disclosure obligation on the Crown, the effect of a failure to disclose on appeals, and the full range of remedies available to the Court of Appeal including a stay of proceedings which occurs in this case. 

[2] On May 13, 2013, the appellant, who was represented by counsel (not counsel on appeal), entered a guilty plea in the Provincial Court of British Columbia to criminal negligence causing the death of Iyanna Teeple (“Iyanna”), a 19-month-old child who had been left in her care. The offence was alleged to have been committed on May 26, 2011, in Cranbrook.

[4] In support of the relief she seeks, the appellant makes application for the admission of a substantial body of fresh evidence tendered to establish: (1) material non-disclosure by the Crown and police prior to the date upon which the plea was entered; and (2) the existence of a reasonable possibility she would not have pleaded guilty to the offence of criminal negligence causing death had the disclosure breaches not occurred.

[5] The Crown, represented on appeal by a special prosecutor appointed under the Crown Counsel Act, R.S.B.C. 1996, c. 87, consents to the admission of the fresh evidence and to the orders the appellant seeks. Like the appellant, the Crown submits that if this Court decides not to enter an acquittal, a judicial stay of proceedings should be imposed.

[6] The focus of the appeal is not so much on whether the appellant has demonstrated an entitlement to a remedy—plainly, she has. The more difficult issue for us to decide is the nature of the remedy that should be granted in this case as a consequence of established disclosure breaches.

[7] …We have not been persuaded that this is an appropriate case in which to enter an acquittal. Instead, we would enter a judicial stay of proceedings. We do so on grounds that a new trial would perpetuate the systemic harm that has already been occasioned by the miscarriage of justice that occurred in this case, and no remedy short of a stay is capable of redressing that harm.

II. Background

[10] We emphasize at the outset of these reasons that the disposition we are making is attributable to the non-disclosure of information clearly falling within the Crown’s duty to disclose set out in R. v. Stinchcombe, [1991] 3 S.C.R. 326.

[11] We have not been asked to make, and do not make, any findings concerning the reliability of the opinions or evidence given by any of the forensic pathologists involved in this case. Put simply, the record before us does not permit the making of such findings and it is unnecessary for us to wade into the controversy this case has generated in the community of forensic pathologists to properly dispose of this appeal. Accordingly, nothing in these reasons should be taken as reflecting negatively on any of the forensic pathologists mentioned herein.

The Circumstances Leading up to Iyanna Teeple’s Death

[12] On the morning of May 26, 2011, Iyanna was dropped off at the appellant’s home. The appellant had babysat Iyanna regularly in the past.

[13] In a statement given to the police, Iyanna’s mother described her daughter as being in good health that day. She said there were no recent events that might have resulted in Iyanna being injured before she was dropped off that morning. Iyanna was described as a content child who was just beginning to walk on her own.

[14] The appellant was almost 28 years of age on the date of the alleged offence. She was raised primarily by her older brother because her father was “a physically abusive alcoholic” who abandoned the family when she was young, and her mother “struggled with mental health and addiction issues”. The appellant is the mother of four children, two of whom—one 18 months old and one four years old at the time— were also in the house and under her care the morning of May 26, 2011. The appellant was diagnosed with Borderline Intellectual Functioning and Attention- Deficit/Hyperactivity Disorder. She attended special educational classes while in school.

[15] At some point in the late morning of May 26, 2011, the appellant left Iyanna unattended in a bathtub for an unknown period of time. The bathtub did not have a slip guard.

[16] At 11:30 a.m. that day, the appellant phoned 911 seeking emergency medical assistance for the child. When first responders arrived, the appellant was attempting resuscitation, but Iyanna was not breathing and did not have a pulse. Iyanna’s heartbeat was restored through aggressive resuscitation efforts made at the scene and at East Kootenay Regional Hospital. She was airlifted to Calgary Children’s Hospital but was pronounced brain-dead the next day. Her death occurred on May 28, 2011, following organ donation, a gift to others made possible by the charity and grace of Iyanna’s family.

[17] No forensic evidence of significance, including any evidence of blood, was discovered at the scene. Wet spots were identified on the floor in a couple of areas in the house, including on the carpet in an upstairs bedroom.

[18] None of the first responders saw or made note of any blood in Iyanna’s mouth.

The Appellant’s 911 Call and First Two Statements to Police

[19] The appellant gave somewhat inconsistent accounts of the length of time she left Iyanna unattended in the bathtub, and the circumstances in which that occurred.

[20] In her 911 call, the appellant said she did not leave the bathroom, but just turned her head and, when she looked back, noticed that Iyanna had swallowed some water. She told one first responder that she had been bathing the child, turned away and, when she looked back, discovered that Iyanna was underwater. She told another first responder that she left Iyanna unattended in the bathtub “only for a minute” to get some shampoo. She told one of the first police officers on the scene that she had been bathing Iyanna in the bathtub, turned away to grab some shampoo, and turned back to discover the child face first in the water.

[22] In her first statement to the police, the appellant said she placed Iyanna in the tub with about four to five inches of water, although she was “not really good about figuring inches out.” She said she briefly turned away to get some shampoo and, when she turned back, Iyanna was face down in the water and unconscious. She said she only turned away for a few seconds, “not even a minute”. When pressed for clarification, the appellant said, “Sorry, I just, I was trying to figure like, the seconds.” Later in the interview, the appellant changed her account and admitted she had left the bathroom to clean up some water that had been spilled by one of the children on the bedroom carpet. She returned to the bathroom to discover Iyanna in distress in the bathtub. The appellant said she was not away from the bathroom for long, and that it was “just for that second”, because she cleaned up the water on the bedroom carpet “really quick”.

[23] On June 6, 2011, the appellant gave her second statement to the police. The second statement was largely consistent with the first. The appellant added that one of her children sometimes hit Iyanna with a toy. She saw this occur on the morning of the incident when one of her children hit Iyanna on the arm….

[24] Iyanna’s mother had also observed her climbing and standing up while in the bathtub.

Iyanna’s Hospitalization in March 2011 for Post-Viral Cerebritis

[26] In her May 26, 2011 statement to the police, Iyanna’s mother advised that “[a]bout three months ago, [Iyanna] had a viral infection in her cerebellum...[but] she recovered quickly cuz it was something where she couldn’t even sit up, she couldn’t stand...”.

[28] Iyanna’s mother also advised the police that the second or third day after treatment, Iyanna was walking around and able to sit up and that everything was fine. Both of these statements were disclosed. Iyanna’s mother’s statement that Iyanna had been diagnosed with a viral infection in the base of her cerebral cortex which had “been treated [with] no further issues” was also summarized in a portion of the Report to Crown Counsel (“RTCC”) that was disclosed to the defence.

[29] On May 31, 2011, two police officers made notes of a conversation they had with Dr. Davis. The notes include references to Iyanna having been diagnosed with post-viral cerebritis. One officer made notes reflecting that the condition was “completely treated by April 4/11”, the infection was “completely healed, and that if something hadn’t healed they would have seen signs”. The other officer who participated in the same interview made a note that Dr. Davis had seen Iyanna for follow-up on April 4, 2011. The notes this officer made include the following entries: “sudden onset of flopp[i]ness”, “viral infection caused inflammation in brain”, “April 4, walking, running again”, “post-viral cerebritis”. These notes were also disclosed to the defence.

[30] After the second interview, the appellant’s brother told investigators that the appellant had been afraid to disclose in her previous statements that, on the day of the incident, Iyanna had fallen from her high chair.

The Appellant’s Third and Fourth Statements to the Police

[31] The appellant was contacted by the police and agreed to provide a third statement on June 8, 2011. In this statement, the appellant described putting Iyanna in a booster seat on a chair in the kitchen. She left the kitchen but then heard a noise. She returned to the kitchen to discover that Iyanna had fallen to the floor with the chair and booster seat on top of her. Other than a red mark on her forehead, she said the child seemed uninjured when she was placed in the bathtub shortly thereafter. The appellant’s account of how long she was away from the bathroom was consistent with the version of events she gave in the latter portion of her first statement.

[32] The appellant’s five-hour fourth interview by the police occurred on June 14, 2011. It included the administration of a polygraph test. When asked by police if she understood why she was there, the appellant responded, “not really”, apologized, and explained that she had a learning disability. She said she had agreed to take the polygraph test because she was told that, “everything will be over if I take the test”. Some hours into the interview, she said she was unaware the polygraph examiner was a police officer. During the interview, the appellant said she was having difficulty breathing and was feeling unwell and claustrophobic. She expressed suicidal ideation. The interviewing officers posed leading questions and repeatedly expressed their belief that the appellant had caused Iyanna’s death.

[33] In her fourth statement, the appellant provided what amounts to the most incriminatory version of events with respect to the frustrations she experienced that day in attempting to care for three young children, Iyanna’s condition when she left the bathroom, and the length of time she left Iyanna unattended in the tub, which she said was “maybe like...five minutes”. We do not propose reviewing the fourth statement in any detail because, even before the appointment of a special prosecutor, Crown counsel had determined that the statement would be found by a court to be involuntary and inadmissible. The special prosecutor also takes the position that the Crown cannot meet its burden to prove the voluntariness of the appellant’s fourth statement.

The Autopsy and Opinions of Dr. Matshes

[34] On May 30, 2011, Dr. Evan Matshes conducted an autopsy on Iyanna’s body. At the time, he was an Assistant Chief Medical Examiner in Alberta.

[35] Dr. Matshes concluded that Iyanna’s death was caused by drowning.
Dr. Matshes noted multiple bruises on Iyanna’s face and scalp, and a recent tear of her maxillary frenum (the tissue on the inner upper lip that attaches to the gumline above the front teeth). In his Certificate of Medical Examiner, Dr. Matshes reported that the manner of death was “undetermined”.

[36] On May 30 and 31, 2011, RCMP investigators spoke with Dr. Matshes. Police created notes, and reports of those conversations, which were disclosed to the defence, reflect that Dr. Matshes provided the following additional information and opinions: the bruising noted on Iyanna’s head was “newish”; that it would be unusual for a fall to result only in head injuries and nowhere else on the body; the injuries “make the whole story of what happened questionable”; it was unlikely that a fall from a high chair could account for some of the bruising to the child’s head, one of which was noted to be quite deep; it was unlikely that the trauma to Iyanna’s mouth (the frenum laceration) was caused by CPR or intubation; that a laceration of the frenum is typically associated with a “blow” to the face which could have been caused by Iyanna falling against the tub; the bruising to the child’s head was not the direct cause of her death, although the bruising was indicative of blows to the head which could have caused her to become unconscious after being placed in the bathtub; and, anything that irritates the brain can cause seizures which could lead to other symptoms contributing to a drowning.

[37] Police notes reflect that Dr. Matshes stated that were he asked to provide evidence in court, he would say that, “[t]his is a child who has been injured by another person in the last couple of days”.

The Murder Charge and Further Opinions of Dr. Matshes

[39] On March 21, 2012, Deputy Regional Crown Counsel had a further conversation with Dr. Matshes, a record of which was disclosed to defence counsel. With respect to the bruising on Iyanna’s head, Dr. Matshes is reported to have said: there is no benign explanation for the injuries, which are typical of those seen in child abuse cases; the force used was not extreme, but considerable; the child could have been rendered unconscious by the blows that caused the bruising; and, the pattern and distribution of the bruising is not consistent with a fall from a high chair. Dr. Matshes is also reported to have opined during this conversation that it takes three to five minutes for a child to die by drowning.

Review Undertaken by Alberta Justice of Dr. Matshes’ Work

[40] In late May, 2012, Cranbrook RCMP was formally advised by its Alberta counterpart that Alberta Justice had commenced a review of cases in which Dr. Matshes had performed autopsies, including Iyanna Teeple’s case. Around the same time, a representative of Alberta Justice wrote the Cranbrook RCMP advising that:

The Chief Medical Examiner for Alberta has expressed her concerns about work done by Dr. Matshes in some of his cases. This has, in turn, caused Alberta Crown Prosecutors to take a second look at cases where Dr. Matshes had been involved. We are currently dealing with the ‘fallout’ arising from Dr. Matshes’ questioned reliability as a medical examiner.

I see that Ms. Bouvette may be charged with a form of homicide (manslaughter) and other offences arising from this death and that she has an appearance on June 11, 2012. There has been some suggestion that a guilty plea may be forthcoming.

If you have any concerns about Dr. Matshes’ involvement in this matter should the case proceed to trial and/or the potential for a wrongful conviction I would be pleased to speak with you.

[41] Cranbrook RCMP communicated this information to the assigned prosecutor in Cranbrook. Alberta Justice was subsequently advised that it was the intention of Cranbrook Crown counsel to have Dr. Matches’ work reviewed by a British Columbia-based pathologist. There are no documents in the defence, RCMP or Crown files to suggest that disclosure was made to the defence of any of these May 2012 Alberta-based communications.

[42] On August 10, 2012, Dr. Anny Sauvageau, the Chief Medical Examiner of Alberta, completed and sent to Cranbrook Crown counsel an email with an attached Peer Review Form pertaining to the post-mortem examination of Iyanna Teeple performed by Dr. Matshes. In the email, Dr. Sauvageau advised:

I don’t agree that there is any ground, on the autopsy findings alone, to support that this is an inflicted trauma. The opinions expressed to [Deputy Regional Crown Counsel] are disturbing and clearly unreasonable. [Emphasis by PJM]

[43] In the accompanying Peer Review Form, Dr. Sauvageau agreed that the opinions of Dr. Matshes respecting the manner and cause of Iyanna’s death are reasonable. She concluded, however, that the verbal opinions attributed to Dr. Matshes by the police and Deputy Regional Crown Counsel are “unreasonable”. She reiterated that there is insufficient evidence in the autopsy findings to support a conclusion of “inflicted trauma”….

[44] …Dr. Ross Zumwalt, Chief Medical Investigator, State of New Mexico,…

…Dr. Zumwalt strongly disagreed with the views expressed by Dr. Sauvageau that the opinions reportedly provided by Dr. Matshes to the police and Deputy Regional Crown counsel were “unreasonable”, and noted that he was at a loss to understand Dr. Sauvageau’s perspective.

[45] On August 24, 2012, and apparently in response to inquiries made by them, Cranbrook RCMP received a letter from Dr. Sam Andrews,…

… Dr. Andrews was the Deputy Chief Medical Examiner for the Province of Alberta and Dr. Matshes’ supervisor when the autopsy on Iyanna Teeple…

…Dr. Andrews also expressed the view that Dr. Sauvageau was “incorrect” in characterizing as “unreasonable” the opinions Dr. Matshes communicated to the police and Deputy Regional Crown counsel.

[46] On August 27, 2012, Cranbrook Crown counsel received an opinion from Dr. Stephen Cina, another forensic pathologist based in the United States. Dr. Cina reviewed the autopsy report of Dr. Matshes and the opinions expressed by Dr. Sauvageau and Dr. Zumwalt. He concurred with the opinion of Dr. Zumwalt. He, too, expressed puzzlement with Dr. Sauvageau’s position.

[47] The letters sent by Dr. Zumwalt and Dr. Cina were disclosed to the defence; Dr. Andrews’ letter was not.

The Preliminary Inquiry

[49] Dr. Matshes acknowledged in his evidence that controversy had arisen in Alberta concerning the reliability of his work. With respect to this case, he testified  that the Chief Medical Examiner for Alberta disagreed with his interpretation of Iyanna’s head injuries, but agreed with him that Iyanna died by drowning and that the manner of her death was appropriately classified as “undetermined”.

[50] Dr. Matshes described bruising scattered in multiple places over Iyanna’s forehead and the top of her head. Two bruises were visible on the surface of Iyanna’s face and head. The rest were not externally visible, but were noted during the autopsy.

[51] Dr. Matshes testified that the injuries could have been sustained from a few hours to a few days before Iyanna’s death. He agreed that the injuries may have been caused by an older child striking Iyanna with a toy. He could not say whether the injuries were intentionally inflicted or accidentally sustained.

[54] He testified it could not definitively be determined how the head injuries would have affected Iyanna. In response to a question posed by Crown counsel that invited him to opine on a range of possibilities, Dr. Matshes said it was unlikely that Iyanna would appear normal in the immediate aftermath of the injuries. He would have expected the injuries to cause Iyanna pain and upset. He testified that the injuries  were not the cause of Iyanna’s death, but it was possible that the effects of the injuries may have caused her to fall forward into the bath water.

[55] Dr. Matshes reiterated his view that a fall from the high chair would be unlikely to result only in head injuries.

[56] Dr. Matshes also testified that irreversible brain injury resulting from oxygen deprivation would occur within three to five minutes. He was not asked how long Iyanna would have been immersed in the bath water before becoming unconscious.

[57] On August 29, 2012, Cranbrook Crown counsel was again informed by a representative of the Attorney General of Alberta that questions had been raised about “the reasonableness of [Dr. Matshes’] conclusions in many cases, including the Teeple case”, and that a review of his work in Alberta was being conducted. As the author of this communication noted, it was being sent to Cranbrook Crown counsel “so that she can properly prosecute her case and make disclosure to the defence”. This Alberta-based communication was also not disclosed to the defence.

[58] On September 21, 2012, the appellant was committed for trial on the charge of second degree murder.

Results of the External Peer Review Undertaken in Alberta are Communicated to Cranbrook Crown Counsel but Not Disclosed

[59] On December 13, 2012, the Crown’s office in Cranbrook received a covering letter dated December 7, 2012, and package of documents (about 140 pages in total) from Alberta Justice. The covering letter, addressed to the Cranbrook Crown counsel assigned responsibility for the appellant’s prosecution, refers to “additional disclosure” consisting, among other things, of: (1) the results of an External Peer Review Committee that was established in Alberta to re-examine the findings of  Dr. Matshes, including in the case of Iyanna Teeple; and (2) correspondence from Dr. Matshes to the (then) Alberta Minister of Justice.

[60] … The correspondence also contains Dr. Matshes’ speculation that the “vindictive nature” of Dr. Sauvageau’s peer review report stemmed from his refusal to support her pursuit of the Chief Medical Examiner position in Alberta because she (allegedly) had not undertaken forensic pathology training in a centre credentialed by a national body, and lacked board certification in forensic pathology.

[61] The covering letter sent by Alberta Justice, the results of the External Peer Review Committee, and Dr. Matshes’ letter to the Minister of Justice were not in defence counsel’s file. Further, no documents in the defence or Crown files suggest that any of these materials were disclosed by the Crown to the defence.

[63] Put simply, the problem in this case does not stem from the conduct of either of these forensic pathologists; rather, it stems from the Crown’s failure to disclose this information.

[64] In its Peer Review Form completed on November 17, 2012, the three- member external review panel, comprised of forensic pathologists other than the Chief Medical Examiner of Alberta, concluded that while the case was a “very difficult” one, the opinions reported to have been expressed by Dr. Matshes to the police and Crown counsel are “not reasonable”. The review panel also characterized as unreasonable Dr. Matshes’ conclusions with respect to the cause of death (drowning) and the manner of death (undetermined). We were given no explanation for the review panel’s apparent rejection of Dr. Matshes’ opinions concerning the cause and manner of death. [Emphasis by PJM]

The Crown’s Decision to Limit its Reliance on Dr. Matshes’ Opinions

[67] …it was decided that, for the purposes of resolution discussions on the basis of a criminal negligence causing death charge, the Crown would only rely on Dr. Matshes’ opinions on factual issues relating to the cause of death (drowning) and the time within which irreversible brain injury results from oxygen deprivation—three to five minutes.

[71] In her sentencing submissions, Crown counsel submitted that the injuries to Iyanna’s head, including the bruising and lacerated frenulum could have been caused accidentally or by rough play between the children. She said that the Crown could not prove the appellant caused any of the injuries. She submitted, however, that the mouth injury would have resulted in significant bleeding, pain and disorientation. The Crown submitted that the appellant’s failure to protect Iyanna amounted to a wanton and reckless disregard for her life and safety as “there was an obviously injured, bleeding, and distraught child, who was crying and trying to stand in the tub, and she was left alone in that shape least three to five minutes”.

[72] As previously noted, there was no blood located in the appellant’s home following the incident. Further, the Crown’s contention that the appellant left Iyanna alone in the bathroom for three to five minutes must have been based on her fourth statement to the police (determined by the Crown to be involuntary and inadmissible), on Dr. Matshes’ evidence at the preliminary inquiry that irreversible brain injury classically occurs in three to five minutes, or on an admission made by the appellant for sentencing purposes.

[74] The appellant’s trial counsel submitted that the evidence Iyanna was bleeding came exclusively from Dr. Matshes. He pointed out that Dr. Matshes’ work had been independently reviewed and found to contain unreasonable conclusions, although counsel said he was “not sure if this case was included” in the review.

[75] …The exchange between the Crown and the sentencing judge on this issue may have left an impression that the coroner (Dr. Sauvageau) agreed that the child would have been bleeding profusely from the mouth when placed in the tub. While this cannot fairly be read into Dr. Sauvageau’s peer review findings, we wish to be clear that we do not attribute to Crown counsel any intention to misrepresent to the sentencing court Dr. Sauvageau’s conclusions.

[76] On May 16, 2013, the appellant was sentenced to 12 months’ imprisonment and probation for criminal negligence causing death.

[79]  The appellant has, of course, long since been served the sentence imposed on her for the offence of criminal negligence causing death.

Summary of the Undisclosed Information and Documents

[83] For clarity, we present, in summary form, the most significant documents and information referred to in the ASF that were not disclosed to the defence:

Documents Relating to the Alberta Review of Dr. Matshes’ Opinions
  • The Alberta-based communications sent to the Cranbrook detachment of the RCMP or the Cranbrook Crown in May 2012 advising that Alberta had commenced a review of cases in which Dr. Matshes had performed the autopsy, including the Teeple case;
  • The August 29, 2012, email advising Cranbrook Crown counsel that questions had been raised about the reasonableness of Dr. Matshes’ conclusions in many cases, including the Teeple case, and that a review of his work in Alberta was being conducted;
  • The December 2012 communication from Alberta Justice that enclosed approximately 140 pages of documents, including: (1) the report of the External Peer Review Committee established in Alberta to re-examine the findings of Dr. Matshes, and its conclusion that the opinions he verbally communicated to the Crown and police in the Teeple case are “unreasonable”; and (2) correspondence from Dr. Matshes to the Alberta Minister of Justice: (a) advising that he had obtained the forensic pathology consultation reports prepared by Dr. Zumwalt and Dr. Cina; (b) characterizing Dr. Sauvageau as “vindictive”; and (c) claiming that Iyanna had sustained “an ultimately lethal injury”, and that the appellant confessed to killing the child; and
  • Andrews’ opinion that was supportive of Dr. Matshes’ report and conclusions.
Documents Relating to Iyanna’s Brain Virus
  • Clinical records from the East Kootenay Regional Hospital pertaining to Iyanna’s hospitalization for three days commencing March 20, 2011, for a suspected viral infection of the brain. The records reflect that Iyanna presented with a sudden onset of loss of balance and hypertonia (abnormally increased muscle tone resulting in rigidity). She was noted to be arching and flopping backwards. She was diagnosed with post-viral cerebritis. When Iyanna was discharged on March 23, 2011, she had improved but still had mild signs of ataxia (lack of muscle co-ordination and control);
  • As set out in the ASF, nothing in the Crown, defence, or RCMP files indicates that these clinical records were provided by the RCMP to the Crown or disclosed to the defence;
  • Occurrence Report 17 – This report records that Dr. Davis was interviewed on May 31, 2011, and advised that Iyanna had been admitted to the hospital for “post-viral cerebritis (a viral infection that moved to the small brain causing hypertonia and ataxia which caused [her] to become limp with a high fever)”, but that the condition had completely healed by April 4, 2011. Dr. Davis is also reported to have advised that if Iyanna’s brain had still been affected, the symptoms would have been noticeable. She said the condition would not have contributed to Iyanna’s death;

III. Legal Framework and Analysis  

Setting Aside Guilty Pleas in Cases of Material Non-Disclosure: General Principles

[85] A guilty plea may be set aside on appeal where there are “valid grounds” to do so: Adgey v. The Queen, [1975] 2 S.C.R. 426 at 431. As this Court noted in R. v. Alec, 2016 BCCA 282 at para. 76, there is no complete catalogue of the circumstances that may be found to constitute “valid grounds” for setting aside a guilty plea. The inquiry is case specific and must be sufficiently flexible to take account of the almost infinite range of circumstances that might be said to have contributed to a miscarriage of justice.

[86] Generally speaking, a valid guilty plea is one that is informed, voluntary and unequivocal: R. v. T. (R.) (1992), 10 O.R. (3d) 514 at 519, [1992] O.J. No. 1914 (C.A.).

[87] However, even if the basic requirements for validity are met, a guilty plea may be set aside in the face of material non-disclosure. In this context, the appellant “must demonstrate that there is a reasonable possibility that the fresh evidence [the undisclosed information] would have influenced his or her decision to plead guilty, if it had been available before the guilty plea was entered”: R. v. Taillefer; R. v. Duguay, 2003 SCC 70 at para. 90. If there is a realistic possibility that an accused would have run the risk of a trial had they been in possession of the undisclosed information, leave should be given to withdraw the guilty plea.

[88] In R. v. Wong, 2018 SCC 25, the Court clarified that the framework for striking a guilty plea involves two discrete steps.

[89] The first step involves whether the accused has been misinformed about sufficiently serious information. Where a plea is sought to be set aside on appeal for non-disclosure, this entails assessing the undisclosed evidence together with all of the evidence known to the accused at the time the plea was entered. The inquiry—to the end of determining whether there has been an infringement of the right to make full answer and defence—involves assessing the volume, weight and relevance of the undisclosed evidence and the new possibilities the opportunity to use that evidence would have offered: Wong at paras. 33–34, citing Taillefer at paras. 90, 111–112. Whether the information unknown to the accused falls within the scope of what an accused must know to enter a valid plea is assessed objectively.

[90] The second step set out in Wong requires demonstration that the lack of information resulted in prejudice. This step involves a subjective assessment of whether the accused would have taken a meaningfully different course of action, including running the risk of a trial, had they been in possession of the undisclosed information: Wong at para. 35.

[91] Where, as here, an appellant seeks the admission of new evidence to challenge the validity of the trial process, the strictures of the test set out in Palmer v. The Queen, [1980] 1 S.C.R. 759 do not apply. Rather, the principles that apply to the admission of evidence discovered after the Crown’s breach of its duty to disclose were set out in R. v. Dixon, [1998] 1 S.C.R. 244 at para. 34. Specifically, an accused who alleges material non-disclosure and seeks to have new evidence admitted on appeal must demonstrate a reasonable possibility that the non-disclosure affected the outcome at trial or the overall fairness of the trial process: Taillefer at para. 78.

Application of Principles to the Case at Bar

[92] It is common ground on appeal that a body of relevant information was within the possession of the Crown and/or police and not disclosed to the defence.

[93] Most significantly, the undisclosed evidence pertained to the reliability of the evidence and opinions of Dr. Matshes. The respondent concedes that this information (along with all of the other undisclosed material summarized herein at para. 83) attracted a disclosure obligation.

[95] It is common ground on appeal that the opinions of Dr. Matshes formed a crucial component of the Crown’s case. The Crown’s theory underlying the murder charge must have rested on Dr. Matshes’ opinion that the injuries he observed on Iyanna were intentionally inflicted by the appellant. Dr. Matshes’ opinions were also critical on issues relating to cause of death and the length of time the appellant must have left Iyanna unattended in the bathtub. That an external peer review panel disagreed with aspects of Dr. Matshes’ opinion in several cases, including this case, would be highly useful to the defence in terms of pursuing further investigations, retaining experts with an opposing point of view, and cross-examining Dr. Matshes.

[96] Similarly, the advice of Alberta Justice that it would not be calling Dr. Matshes in any future case would have been useful information for the defence.

[97] The letter Dr. Matshes wrote to the Minister of Justice in Alberta before testifying at the preliminary inquiry was also significant. The fact that Dr. Matshes obtained the confirmatory consultation reports from Dr. Zumwalt and Dr. Cina was relevant to the defence, as was the possibility of animus between Dr. Matshes and Dr. Sauvageau. This information might have been used as the foundation for an argument that Dr. Matshes should not be qualified to give expert evidence in this case. It might have been argued that Dr. Matshes’ opinions in the case were so enmeshed with his dispute with Dr. Sauvageau and related desire to protect his professional reputation, that he had developed an intensely personal and disqualifying interest in the litigation: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at paras. 32, 35–40, 49.

[98] Failure to disclose hospital records concerning Iyanna’s admission and treatment in March 2011 for a brain virus that could result in loss of balance and motor control was also significant. With these records in hand, the defence might have explored with their own expert the physiology of post-viral cerebritis and whether it could have played a continuing role on May 26. In addition, the failure to disclose Occurrence Report 16 was significant insofar as it suggested that the conditions associated with a viral brain infection “could contribute to some of the findings”.

[99] We are satisfied the fresh evidence establishes a failure on the part of the Crown and police to disclose to the appellant information of considerable significance to the defence. The undisclosed evidence had an immediate potential use and could also have been used to pursue avenues of inquiry helpful to the defence. The failure to disclose this information violated the appellant’s right to make full answer and defence. It also renders the guilty plea invalid as the appellant was, by virtue of the non-disclosure, deprived of an opportunity to make an informed choice about how to proceed. The first step of the Wong test is met.

[100] We turn next to the second step in the Wong framework—whether the appellant has established prejudice that is serious enough to constitute a miscarriage of justice, in the sense that the circumstances and new evidence give rise to a reasonable possibility that she would not have entered the guilty plea had full disclosure been made.

[101] In her fresh evidence affidavit, the appellant deposes she would not have pleaded guilty to the offence of criminal negligence causing death had she been aware of the undisclosed material and its potential impact on the strength of Dr. Matshes’ opinion evidence:

17. In March 2013, [defence counsel] told me about a plea offer from Crown, which involved me pleading guilty to criminal negligence causing death and the charge of murder against me being stayed.

18. I did not believe I was responsible for lyanna’s death. However, [defence counsel] told me I should take the plea offer. He said the likely outcome at trial would be a conviction for second degree murder because of Dr. Matshes’ expert opinion. I understood Dr. Matshes’ would be giving evidence that I had caused lyanna’s death.

19. I felt like I had no choice but to plead guilty. I wanted to get out of jail and I was facing 25 years.


43. If I had been advised of the non-disclosed materials... and how they would have negatively impacted on the strength of Dr. Matshes’ expert opinion, I would not have accepted the plea bargain.

44. If I had been advised that Dr. Matshes’ opinions [were] the subject of considerable expert criticism, including his opinion in lyanna’s case, I would not have accepted the plea bargain.

[102] The appellant’s trial counsel deposes in his fresh evidence affidavit that, “[i]f I had been aware of other file materials, including reports or documents impugning the reliability of the expert opinion [of] Dr. Matshes, it is likely that I would have advised Ms. Bouvette differently”.

[104] That the appellant’s prejudice claim has not been challenged is an important, but non-determinative factor. As emphasized in Wong at para. 26, an accused’s claim about what his or her subjective and fully informed choice would have been must be measured against the objective circumstances to test its veracity against the standard of reasonable possibility: see also R. v. Klassen, 2023 BCCA 103 at para. 42.

[107] The appellant was completely reliant on her counsel. She is a marginalized person from a disadvantaged background who operates with borderline intellectual functioning. In her reasons for sentence, the judge took note of the Crown’s position that the appellant has “fragilities” and is “poorly equipped, both intellectually and emotionally, to deal with stress...”.

[108] The appellant’s trial counsel appears to have been aware that Dr. Matshes’ work was being questioned and systematically reviewed in Alberta, but neither he nor the appellant was aware that those concerns extended to the autopsy Dr. Matshes conducted on Iyanna Teeple.

[109] The appellant was also unaware of the results of the external peer review overseen by Alberta Justice, and the possibility that the review could be the source of an alternative opinion refuting the damning one offered by Dr. Matshes, or at least undermining the reliability of the Crown’s key witness.

[110] In the circumstances, the appellant faced a terrible dilemma, similar to the one that faced the appellant in R. v. Kumar, 2011 ONCA 120 at para. 34. She could proceed to trial and risk being convicted of second degree murder, or plead guilty to a reduced charge. Against this background, the Crown held out a powerful inducement: a guilty plea to a lesser charge and the certainty of a much-reduced sentence. Indeed, the Crown sought the imposition of a two-year custodial term on the appellant’s plea of guilty to criminal negligence causing death. It is not difficult to imagine why, unarmed with critical information that could assist her, this marginalized, overwhelmed and intellectually challenged appellant would enter a guilty plea to a lesser offence.

[111] In our view, this evidence, assessed against the significance of the undisclosed information, establishes a reasonable possibility that the appellant would not have pleaded guilty to criminal negligence causing death had the Crown and police complied with their disclosure obligations.

[112] In our view, the conviction entered following the appellant’s guilty plea is the product of a miscarriage of justice. It must be set aside.

Remedial Options: General Principles

[113] Where an appeal from conviction is allowed under s. 686(1)(a) of the Code, s. 686(2) provides that the court shall quash the conviction and (a) direct a judgment or verdict of acquittal to be entered; or (b) order a new trial.

[114] An acquittal will be entered if the appeal court is satisfied, based on the trial record as augmented by the fresh evidence, that no reasonable jury, properly instructed in the law, could convict: R. v. Hinse, [1997] 1 S.C.R. 3 at para. 2. The test is a strict one: R. v. Dhillon, 2014 BCCA 480 at para. 50; Truscott (Re), 2007 ONCA 575 at para. 752.

[115] There is appellate court authority for the proposition that, in exceptional circumstances, an acquittal may be entered even when it cannot be said that an acquittal would be the only reasonable verdict. In Truscott, a case in which the validity of a historical conviction was revisited in light of fresh evidence, the Court entered an acquittal despite concluding that a reasonable jury, acting judicially, could convict. The circumstances in Truscott were acknowledged by the Court to be “highly unusual” for a number of reasons: at paras. 751, 787.

[117] A new trial will, however, generally be ordered if the appeal court is satisfied that the entirety of the record at the end of the appeal admits of a reasonable possibility of a conviction on a retrial: Truscott at paras. 247–248.

[118] As an alternative to entering an acquittal or ordering a new trial, an appeal court may stay the proceedings to prevent an abuse of process. As explained in Dhillon at paras. 32–35, an appeal court’s jurisdiction to order a judicial stay of proceedings may be found in s. 686(8) of the Code and s. 24(1) of the Charter.

[120] A stay of proceedings may only be entered to prevent an abuse of process. It is a remedy only to be granted in the clearest of cases. In R. v. Babos, 2014 SCC 16 at para. 31, the Court noted that cases in which a stay of proceedings is required will generally fall into two categories: (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category). Whether a stay is sought under the main or residual category, the test is the same: there must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”, and no alternative remedy capable of redressing that prejudice. Where uncertainty arises over whether a stay is warranted, the court must balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interests of the community in having a final decision on the merits: Babos at para. 32.

[121] Factors to be considered in determining whether to order a stay of proceedings in a case of this kind include: the seriousness of the disclosure breach; the impact the breach has had on the accused; and, whether the accused has already served the sentence that was imposed following the entry of the plea. As noted in Taillefer at paras. 128–129, ordering a new trial when the accused has already served the sentence may be seen as perpetuating an injustice that would tarnish the integrity of the justice system.

[122] While a stay of proceedings is tantamount to a judgment or verdict of acquittal for the purposes of determining appellate rights under the Code, the two remedies are not otherwise the same and should not be equated. As explained in R. v. Jewitt, [1985] 2 S.C.R. 128 at para. 56, a “stay of proceedings for abuse of process is given as a substitute for an acquittal because, while on the merits the accused may not deserve an acquittal, the Crown by its abuse of process is disentitled to a conviction”….

Application to the Case at Bar
a. The Elements of the Offence

[123] To determine whether a reasonable jury could convict the appellant of criminal negligence causing death, it is necessary to understand the essential elements of the offence the Crown would have to prove beyond a reasonable doubt. Section 219(1) of the Code provides that “Every one is criminally negligent who: (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons”. To obtain a conviction, the Crown would have to prove the appellant undertook an act, or omitted to do anything that it was her legal duty to do, and that the act or omission caused the death of Iyanna Teeple (the actus reus). The Crown would also have to prove that the appellant’s act or omission displayed a wanton or reckless disregard for Iyanna’s life or safety. Neither “wanton” nor “reckless” is defined in the Code, but in R. v. J.F., 2008 SCC 60 at paras. 7–9, the Court confirmed that the offence of criminal negligence causing death imposes a modified objective standard of fault. As with other negligence-based criminal offences, the fault element of criminal negligence causing death is assessed by measuring the degree to which the accused’s conduct departed from that of a reasonable person in the circumstances. But the requisite degree of departure is, in this context, an elevated one. It would require the Crown to prove that the appellant’s conduct constituted a marked and substantial departure from the conduct of a reasonable person in her circumstances (the mens rea): R. v. Javanmardi, 2019 SCC 54 at paras. 19–23.

[133] In our view, and accepting for the purposes of this analysis that a jury could not reasonably find any of Iyanna’s injuries to have been inflicted by the appellant, we are of the view that a reasonable jury could nonetheless conclude that knowingly leaving an injured 19-month-old child unattended in a bathtub for as long as a minute constitutes a marked and substantial departure from the conduct of a reasonable person in the appellant’s circumstances. In these circumstances, it cannot be said that no jury properly instructed in the law could convict the appellant of criminal negligence causing death.

Should an Acquittal be Entered Applying the Framework in Truscott?

[137] The exceptional remedial approach found to be justified in the “highly unusual” circumstances of Truscott has never been applied by this Court, although we would not preclude its consideration in an exceptional case. We note that the Truscott remedial framework has been followed by other provincial appellate courts: see Ostrowski (Re), 2018 MBCA 125 and R. v. D.R.S., 2013 ABCA 18. We are not, however, satisfied that the circumstances of this case are sufficiently exceptional to justify embarking on a Truscott analysis.

[139] There is a second factor that distinguishes Truscott from the case at bar. In Truscott, the Court was satisfied that it had the benefit of a complete record, and that there would never be another forum in a better position to assess the appellant’s culpability: at para. 260. The same cannot be said in the instant case. We are operating on an incomplete record, and in circumstances where counsel acknowledge that we are not in a position to make any findings respecting the disputed forensic pathology evidence. In these circumstances, we are of the view that embarking on a Truscott analysis in this case is not a viable option. At worst, it would involve a judicial prognostication as to the likely outcome of a new trial that this Court is in no position to make. At best, it would involve an intolerable degree of judicial speculation as to the likely outcome of that new trial.

Should a Judicial Stay of Proceedings Be Entered?

[141] We do, however, consider this to be a clear case warranting a judicial stay of proceedings. The non-disclosure constituted a serious breach of the appellant’s right to make full answer and defence. While there is no direct evidence before us of bad faith on the part of the Crown, a demonstration of prosecutorial bad faith or misconduct is not a condition precedent to the granting of a judicial stay of proceedings: Taillefer at para. 129.

[142] To be clear, we make no finding of bad faith or malice on the part of the Crown. But neither can we ignore that the disclosure breaches were not isolated or confined to information of dubious value to the appellant. As a consequence of material non-disclosure, the appellant was deprived of the opportunity to make an informed decision about how to plead apprised of the strengths and weaknesses of the case against her on fundamental issues.

[143] The prejudice the appellant has suffered as a consequence of the disclosure breaches is set out in her affidavit. After being charged with Iyanna’s murder, the appellant relapsed and began misusing substances again. She lost custody of her children. Since being released from custody, she has struggled with addiction issues, homelessness, poverty, social isolation, and physical and mental health challenges. While incarcerated, she was assaulted because she was perceived to be a “baby killer”, and moved to segregation for her own protection. She attempted suicide on several occasions. Her children have been harassed and bullied at school because their mother has been found to be criminally responsible for the death of a child.

[144] In addition, the appellant has served the entirety of her sentence….

[145] We are satisfied that the systemic prejudice identified herein is irreparable and would be perpetuated if a new trial were ordered.

IV. Disposition

[147] For the foregoing reasons, we admit the fresh evidence, set aside the guilty plea, quash the conviction, and enter a stay of proceedings.

R v Breault, 2023 SCC 9

[April 12, 2023] Refusal to Provide a Sample and the Availability of the Approved Screening Device [Reasons by Côté J. with Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ. concurring ]

AUTHOR’S NOTE: This case stands for the proposition that for a lawful roadside sample demand to occur the police must have the ASD present. Pure and simple: it is not a criminal offence to refuse to provide a future sample when the ASD is not present on scene. Any charge based on a refusal made when the ASD is not present will result in an acquittal. Though decided under the old impaired driving provisions, the Court explained that its conclusions apply with equal force to the new criminal driving provisions in the Criminal Code. This case is a welcome addition to criminal jurisprudence from the Supreme Court providing at least one bright line in the area of criminal law. 

I. Introduction

[1] This appeal concerns the interpretation of the immediacy requirement in what was, at the relevant time, s. 254(2)(b) (now s. 320.27(1)(b))1 of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”). According to this provision, if a peace officer has reasonable grounds to suspect that a driver has alcohol in their body, the peace officer may, by demand, require the driver “to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made” through an approved screening device (“ASD”).

[2] The immediacy requirement arising from this provision has both an implicit component and an explicit component. It is “implicit as regards the police demand for a breath sample, and explicit as to the mandatory response: the driver must provide a breath sample ‘forthwith’” (R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, at para. 14). This case deals with the latter component.

[4] The central issue in this case relates to the time within which a peace officer must enable a driver who is stopped for this purpose to provide the breath sample required for a proper analysis to be made by means of an ASD. Specifically, this Court must determine whether the validity of a demand made by a peace officer under s. 254(2)(b) Cr. C. requires that the officer have immediate access to an ASD at the time the demand is made.

[5] This Court therefore has an opportunity to settle a jurisprudential debate over the interpretation of the immediacy requirement. This debate is illustrated by the approaches adopted, on the one hand, by the Ontario Court of Appeal in R. v. Degiorgio, 2011 ONCA 527, 275 C.C.C. (3d) 1, and R. v. Quansah, 2012 ONCA 123, 286 C.C.C. (3d) 307, and, on the other, by the Quebec Court of Appeal in the judgment under appeal. After interpreting s. 254(2)(b) Cr. C. in a manner consistent with the text, context and purpose of this provision, I conclude that the Quebec Court of Appeal’s approach is substantially correct.

[6] Stops to provide breath samples are meant to be brief. Drivers stopped for this purpose are then being detained. This Court’s jurisprudence allows a limit on the right to counsel guaranteed by s. 10(b) of the Canadian Charter of Rights and Freedoms during such detention. This limit is justified under s. 1 of the Charter, because s. 254(2)(b) Cr. C. reflects the balance struck by Parliament between the safeguarding of drivers’ constitutional rights and the public interest in eradicating impaired driving (Woods, at para. 29). It is essential to this balance that the word “forthwith” be interpreted in a manner generally consistent with its usual or ordinary meaning.

[7] Exceptionally, unusual circumstances may justify giving the word “forthwith” a more flexible interpretation than its usual or ordinary meaning demands (Woods, at para. 43, citing R. v. Bernshaw, [1995] 1 S.C.R. 254). However, those circumstances must be just that: unusual. They cannot arise from utilitarian considerations or considerations of administrative convenience. Moreover, the determination of what constitutes unusual circumstances must be grounded primarily in the text of s. 254(2)(b) Cr. C.

[9] It is neither necessary nor desirable to set out an exhaustive list of the circumstances that may be characterized as unusual. For the purposes of this case, it will suffice to say that the absence of an ASD at the scene at the time the demand is made is not in itself such an unusual circumstance. I would therefore dismiss the appeal.

II. Factual Background

[10] On April 2, 2017, Constables Dale Atkins and Jean-Michel Côté-Lemieux were informed by forest trail patrollers that an individual who was intoxicated was driving an all-terrain vehicle (“ATV”) in Val-Bélair. While en route, they learned that the individual had parked his vehicle and was about to leave the scene on foot.

[11] The constables arrived at the scene at about 1:35 p.m. They saw the respondent and stopped him. Constable Atkins noticed that the respondent’s eyes were bloodshot and that his breath smelled strongly of alcohol. The respondent identified himself through his driver’s licence as Mr. Pascal Breault. When questioned by Constable Atkins, he admitted drinking one beer but denied driving the ATV. Constable Côté-Lemieux spoke with the patrollers, who confirmed that the respondent had been driving the vehicle; he conveyed that information to his colleague. At that point, the constables believed that they were indeed talking to the individual referred to by the patrollers.

[12] At 1:41 p.m., Constable Atkins radioed for an ASD to be brought to him,…

…A colleague patrolling the Charlesbourg area responded that he had an ASD and that he was on his way. Constable Atkins estimated that Charlesbourg was about 10 minutes from his location, although a 15-minute delay was not impossible.

[13] Once he had radioed for an ASD, Constable Atkins demanded that the respondent provide forthwith a breath sample, pursuant to s. 254(2)(b) Cr. C. Neither he nor Constable Côté-Lemieux told the respondent that there was no ASD at the scene. Starting at 1:45 p.m., the respondent refused not once but three times to provide the requested sample. Following the respondent’s first refusal, Constable Atkins informed him of the consequences he faced. The respondent then reiterated his refusal twice. During that interaction, he said that he wished to retain and instruct counsel, a request that Constable Atkins denied. The reason given by the respondent for each of the three refusals was that he had not been driving the ATV in question. The respondent was therefore arrested for refusing to comply with a demand to provide a breath sample contrary to s. 254(5) Cr. C.

[14] At about 2:00 p.m., there was still no ASD at the scene. In view of the respondent’s refusal, the constables cancelled their radioed request that an ASD be brought to them. They seized the respondent’s ATV and released him.

B. Section 254(2)(b) Cr. C.

(1) Text

[29] It is important to consider the meaning of two words found in this provision: “provide” and “forthwith”. “Provide” means to “supply” something to someone (Canadian Oxford Dictionary (2nd ed. 2004), at p. 1245). “Forthwith” means “immediately” or “without delay” (Woods, at para. 13, quoting Canadian Oxford Dictionary, at p. 585; see also R. v. Grant, [1991] 3 S.C.R. 139, at p. 150).

[30] According to the grammatical and ordinary meaning of these words, a driver detained under s. 254(2)(b) Cr. C. must “supply” a breath sample to the peace officer “immediately” or “without delay”. In addition, the provision states that the sample “will enable a proper analysis to be made” by means of an ASD.

[31] Therefore, and contrary to what the Crown argues, the word “forthwith” qualifies the demand that drivers must obey. Stopped drivers “are bound by s. 254(2) to comply immediately” (Woods, at para. 45). They are not free to provide a sample when they see fit.

[32] It is true that operational time is implicit in the word “forthwith”, because the officer “has to ready the equipment and instruct the suspect on what to do” (Bernshaw, at para. 64). However, what is in issue in this case is not operational time, but rather the time needed for a device to be delivered to the scene.

[36] Furthermore, as I said above, a driver who refuses or fails to comply with a demand is subject to criminal sanctions under s. 254(5) Cr. C. It is therefore not an offence to express an intention to refuse once the ASD arrives at the scene; refusing without reasonable excuse to provide forthwith a sample is what constitutes the offence (Woods, at paras. 14 and 45). This suggests that compliance must actually be physically possible.

(a) New Impaired Driving Detection Scheme

[39] The wording of s. 320.27(1)(b) Cr. C. is substantially similar to that of s. 254(2)(b) Cr. C…. 

[41] According to the Crown’s argument, because s. 254(2)(b) Cr. C. does not expressly require peace officers to have an ASD in their possession when they make a demand, the word “forthwith” must not be interpreted as creating such an obligation in practice. At the hearing of the appeal, the appellant urged the Court to see in the new scheme an “indication” that Parliament took notice of and did not wish to repudiate the jurisprudence of certain appellate courts in this country allowing delays of several minutes. In my view, this argument must be rejected, for two reasons.

[42] First, subsequent legislative history, that is, the amendments made to the version of a provision in force at the relevant time, “can cast no light on the intention of the enacting Parliament or Legislature” with respect to that version predating the amendments…

[43] Even if the retention of the word “immédiatement” in the French version of s. 320.27(1) Cr. C. (“forthwith” has been replaced by “immediately” in the English version) could be seen as confirmation of the interpretation given to this word by the courts (which Parliament is presumed to know), that body of jurisprudence consists primarily of this Court’s decisions in Thomsen, Grant, Bernshaw and Woods, in which this word was interpreted in a manner consistent with its ordinary meaning, except in unusual circumstances (C.A. reasons, at para. 67 in fine)….

[44] Second, and more importantly, there is a conceptual difference between the possession requirement in s. 320.27(2) Cr. C. and the immediacy requirement, which relates to temporality. Indeed, the word “immediately” is also used in s. 320.27(2) Cr. C. It follows that the guidance provided by this judgment on the interpretation of the immediacy requirement in s. 254(2)(b) Cr. C. applies to the interpretation of the word “immediately” in s. 320.27(1)(b) Cr. C.

(4) Conclusion on the Interpretation of Section 254(2)(b) Cr. C.

[50] …However, the Court noted that the immediacy requirement must generally be interpreted in accordance with the usual meaning of the word “forthwith”, referring in particular to R. v. Côté (1992), 6 O.R. (3d) 667 (C.A.), in which Arbour J.A., as she then was, had found that a 14-minute delay due to the absence of an ASD at the scene did not satisfy the immediacy requirement:

Speaking for a unanimous court, Arbour J.A. (as she then was) cited the passage I have reproduced from Grant, and explained:

If the accused must be taken to a detachment, where contact with counsel could more easily be accommodated than at the side of the road, a large component of the rationale in Thomsen disappears. In other words, if the police officer is not in a position to require that a breath sample be provided by the accused before any realistic opportunity to consult counsel, then the officer’s demand is not a demand made under s. 238(2). The issue is thus not strictly one of computing the number of minutes that fall within or without the scope of the word “forthwith”. Here, the officer was ready to collect the breath sample in less than half the time it took in Grant. However, in view of the circumstances, particularly the wait at the police detachment, I conclude that the demand was not made within s. 238(2). As the demand did not comply with s. 238(2), the appellant was not required to comply with the demand and his refusal to do so did not constitute an offence. [Emphasis added; p. 285.]

It is for these reasons that we are prohibited on constitutional grounds from expanding the meaning of “forthwith” in s. 254(2) to cover the delays that occurred in this case.

(Woods, at paras. 35-36)

Therefore, the relevant time period for the explicit immediacy requirement is the period between the making of the demand and the moment when the breath sample can be provided (C.A. reasons, at para. 42). The above passage from Woods echoes the idea, originally stated in Thomsen, that a limit on the right to counsel results by implication from the language of s. 254(2)(b) Cr. C., and specifically from the word “forthwith”. Indeed, but for the immediacy requirement, the provision “would not pass constitutional muster” (Woods, at para. 15). The immediacy requirement is, of course, usually discussed in relation to the right to counsel guaranteed by s. 10(b) of the Charter. However, this is not the only constitutional right that may be engaged by this requirement; this may also be the case for the rights under ss. 8 and 9 of the Charter, which guarantee protection against, respectively, unreasonable search or seizure and arbitrary detention or imprisonment (Woods, at para. 15).

[51] It follows that the approach adopted by the Ontario Court of Appeal in Quansah needs to be qualified. It is true that the immediacy requirement is not met where the length of the detention was such that the stopped driver could realistically have consulted counsel. It is also true that, in the reverse case, the analysis is not at an end, because there are situations in which the immediacy requirement is not met even though there was not enough time to consult counsel (Quansah, at paras. 34-35). However, with respect, the Ontario Court of Appeal broadened the immediacy requirement unduly by finding that it must allow for the time “reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2)” (Quansah, at para. 47). “Forthwith” is not synonymous with “time reasonably necessary”; this word must be given an interpretation consistent with its ordinary meaning, except in the unusual circumstances referred to by Fish J. at para. 43 of Woods.

[52] That being so, what must be determined is whether the absence of an ASD at the scene at the time a demand is made under s. 254(2)(b) Cr. C. is an unusual circumstance that justifies a more flexible interpretation of the word “forthwith”.

C. Unusual Circumstances That Allow for a Flexible Interpretation of the Word “Forthwith”  

[54] As I mentioned above, it is neither necessary nor desirable for the purposes of this appeal to identify in the abstract, and in an exhaustive manner, the circumstances that may be characterized as unusual and may justify a flexible interpretation of the immediacy requirement. It is preferable for those circumstances to be identified on a case-by-case basis in light of the facts of each matter. However, it is important to provide some guidelines to assist lower courts in this inquiry.

[55] First, the burden of establishing the existence of unusual circumstances rests on the Crown.

[56] Second, as in Bernshaw, the unusual circumstances must be identified in light of the text of the provision (Piazza, at para. 81 (CanLII)). This preserves the provision’s constitutional integrity by ensuring that courts do not unduly extend the ordinary meaning strictly given to the word “forthwith”.

[57] Like the provision at issue in Bernshaw, s. 254(2)(b) Cr. C. specifies that the sample collected must enable a “proper analysis” to be made, which opens the door to delays caused by unusual circumstances related to the use of the device or the reliability of the result.

[58] That being said, courts might recognize unusual circumstances other than those directly related to the use of the ASD or the reliability of the result that will be generated. For example, insofar as the primary purpose of the impaired driving detection procedure is to ensure everyone’s safety, circumstances involving urgency in ensuring the safety of the public or of peace officers might be recognized.

[59] Third, unusual circumstances cannot arise from budgetary considerations or considerations of practical efficiency. A flexible interpretation of the immediacy requirement cannot be justified by the magnitude of the public funding required to supply police forces with ASDs or by the time needed to train officers to use them. There is nothing unusual about such utilitarian considerations. Allocating a limited budget is the daily reality of any government (Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678, at para. 153).

[60] Fourth, the absence of an ASD at the scene at the time the demand is made is not in itself an unusual circumstance.

D. A Demand Made in the Absence of an ASD Is Not Presumed To Be Valid

[63] …As I have already explained, the word “forthwith” qualifies the demand to provide a breath sample. It is refusing to obey that demand to provide forthwith a sample that constitutes a criminal offence, not stating in advance that one will refuse to comply with the demand once an ASD is available at the scene. Moreover, and as Doyon J.A. properly noted at paras. 49-50 and 55 of the Court of Appeal’s judgment, how can a person be criminally liable for refusing to comply with a demand — that is, a demand to provide a breath sample — with which it was not actually possible to comply because of the absence of an ASD at the time the demand was made? To ask the question is to answer it.

[66] Nothing in s. 254(2)(b) Cr. C. indicates that Parliament intended to create the presumption of validity proposed by the Crown. That being said, peace officers who have no ASD with them when they stop a driver who is suspected of having alcohol in their body are not entirely without options. They can require the driver to perform coordination tests, as permitted by the current s. 320.27(1)(a) Cr. C. These officers also have common law powers to check for sobriety. Where doing so is reasonable and necessary, they can, among other things, question a driver who is lawfully stopped about prior alcohol consumption or ask the driver to perform physical tests other than those provided for in the Criminal Code (R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, at paras. 43-49; Leclerc v. R., 2022 QCCA 365, at paras. 45-48 (CanLII)).

[67] Finally, I should address the Crown’s argument that the respondent cannot rely on the absence of an ASD at the scene to justify his refusal because he was unaware of that absence while stopped by the police. With respect, I disagree. Accepting this argument could encourage peace officers not to be transparent, because when they stop a driver, they are normally the only ones to know whether or not they are in possession of an ASD. This would mean that peace officers could, at their sole discretion and in an arbitrary manner, make valid a demand that otherwise would have been invalid if the driver had been informed of the absence of an ASD at the scene at the time the driver was stopped.

E. Application to the Facts of the Case

[68] The Crown has not shown that there was any unusual circumstance that would account for the absence of an ASD at the scene and thereby justify a flexible interpretation of the immediacy requirement. In fact, the appellant is unable to explain why Constables Atkins and Côté-Lemieux did not have an ASD in their possession. The demand made by Constable Atkins was therefore invalid. Accordingly, the respondent’s refusal did not attract criminal liability, and the acquittal entered by the Quebec Court of Appeal must be upheld.

VII. Disposition

[69] For these reasons, the appeal is dismissed.

R v Gala-Nyam, 2023 ONSC 2241

[April 12, 2023] Charter s.9: Racial Profiling  [L. Shaw J.]

AUTHOR’S NOTE: This case outlines in sharp contrast how insidious thinking on the basis of racial stereotypes can be on policing. A young black male makes rolling stop and a left turn in front of a police ghost car and suddenly the officer begins a search for reasons to stop and search the driver and the car. Each observation of driving that follows becomes imbued with some nefarious criminal intent. The officer then presents testimony without reference to race, but only the facts imbued with rationalized criminal intent behind mundane acts. This can describe any racial profiling case, but in this matter, the Shaw J. takes the reader by the hand and shows how potentially subconscious racial stereotypes caused Mr. Gala-Nyam to be stopped and searched. 


[1] The applicant, Chai Gala-Nyam, is charged with a number of offences with respect to drugs and identity documents found in his possession following a traffic stop on November 29, 2020, contrary to the Criminal Code, R.S.C., 1985, c. C-46 (“the Code”) and the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[2] The applicant seeks to stay the charges or, in the alternative, to exclude the evidence seized based on a violation of his ss. 7, 8 and 9 rights under the Canadian Charter of Rights and Freedoms (the “Charter”). These reasons will deal with the allegation that the arresting officer racially profiled the applicant, a young Black male. The applicant’s position is that If I find that racial profiling was involved at any time prior to his arrest, all evidence seized ought to be excluded pursuant to s. 24(2) of the Charter. The Crown disputes that there was any racial profiling but concedes that should I find racial profiling to have played any part in the stop or arrest of the applicant, the evidence must be excluded.

[5] For the reasons that follow, I find that there was racial profiling before the officer stopped the applicant’s vehicle. As a result, based on the position of both the Crown and the applicant, the evidence seized including the identity documents and drugs are excluded pursuant to s. 24(2) of the Charter.

Review of the Evidence

[6] Det. Cst. Statham has been with PRP since May 2013. On November 29, 2020, a Sunday, he was working as a uniformed patrol officer. He commenced work at 6 a.m. He was wearing his police uniform and driving a low-profile police vehicle. He was alone in his patrol car. The vehicle was black with grey-tinted police markings. There were no lights on the top but there were lights in the front grill and rear of the car. He agreed that another term used to describe the vehicle is a “sleeper car,” meaning it is one that civilians might not immediately recognize as a police vehicle. He agreed that one of the purposes of that kind of vehicle was so that persons under suspicion might not recognize it as a police car. His evidence was that you could make out the grey lettering on the car as you get closer to it.

[7] He was assigned to patrol an area of Brampton with which he was highly familiar at the time. He described it as a mostly residential area with some schools and businesses. The weather was cloudy; the roads, clear.

[8] At 7:40 a.m., he was travelling north on Thorndale Road, approaching the intersection with Castle Oaks Crossing which is controlled by four-way stop signs. Traffic conditions were light. As he approached the intersection, he saw an orange Hyundai traveling west on Castle Oaks Crossing. It had the right of way at the intersection as it arrived there first.

[9] Det. Cst. Statham observed that there was no front licence plate on the Hyundai. He also observed that the driver of the car, the applicant, was a Black male.

[10] Det. Cst. Statham’s evidence was that he planned to turn left to proceed west on Castle Oaks Crossing even before he saw the applicant’s car. When he testified at the preliminary hearing, his evidence was that he did not know why he made the left turn. He agreed that was his evidence at the preliminary hearing and explained that he could not recall why he was planning to make the left turn but had been planning on doing so before he saw the applicant’s car.

[11] After making the left turn, Det. Cst. Statham was driving behind the applicant’s vehicle and observed that the rear licence plate was from Québec. He testified that in Québec, front licence plates are not required, which explained why the Hyundai did not have a front licence plate. He nonetheless decided to “run the plate” meaning to gather information about the car and driver. To do so, while he drove, he typed the licence plate into a computer, mounted beside the driver’s seat, to obtain information from the Ministry of Transportation (“MTO”), Canadian Police Information Centre (“CPIC”), and the Police Query Tool (“PQT”). PQT is a database of interactions with Peel Regional Police. CPIC is a Canadian database that has information such as whether a car is stolen or whether a person is missing. The MTO inquiry provides information about the car, such as the make, model, and registered owner.

[14] Shortly after he typed in the licence plate information, he got a response that the MTO system was down for maintenance. The CPIC and PQT searches came back negative, meaning there was nothing on file about that licence plate.

[15] As he drove behind the applicant’s vehicle, he observed nothing unusual about the operation of the car: it was driving the speed limit.

[16] Castle Oaks Crossing ends at its intersection with Gore Road; the intersection is controlled by a traffic light. Gore Road runs in a north/south direction. At Gore Road, the single lane for westbound traffic on Castle Oaks Crossing turns into two lanes – one to turn south on Gore Road and one to turn north. The applicant’s vehicle entered the lane to turn right to proceed north on Gore Road. According to Det. Cst. Statham, the traffic light was red. The Hyundai did not come to a complete stop but slowed to approximately 15 km/hr and then turned right onto Gore Road. This left turn did not interfere with other vehicles as there was no traffic on Gore Road.

[17] According to Det. Cst. Statham, the failure to come to a complete stop at the red light was an offence under the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), as amended, and at that point, he decided to initiate a traffic stop. He did not, however, activate his emergency lights or attempt to stop the vehicle for approximately another five minutes.

[21] In-chief, Det. Cst. Statham testified that the area of Fitzpatrick Drive was a small residential pocket. He agreed there were high-end homes in the neighbourhood. His evidence was that “it crossed my mind” that the applicant’s car made this left turn on the first available street off Gore Road as a countersurveillance measure to avoid police detection.

[22] On cross-examination, Det. Cst. Statham agreed that it crossed his mind that he was suspicious and intrigued when he saw the applicant’s vehicle turn left onto Fitzpatrick Drive into this residential neighbourhood. He explained that the reason he was suspicious is that Fitzpatrick Drive is the first street off of Gore Road, and based on his experience, to avoid police detection, drivers will make efforts to get out of police view by making this type of quick turn. He agreed that it crossed his mind that by making the left turn, the driver was either doing a “heat check”, meaning checking to see if he was being followed by the police, or “may have been up to something else”. On further questioning, he described it as a “low suspicion.”

[24] He agreed with the suggestion that there was nothing about the manner in which the applicant executed the left turn onto Fitzpatrick Drive that led him to be suspicious. Rather, it was just the left turn itself that made him suspicious.

[25] When he turned left onto Fitzpatrick Drive, Det. Cst. Statham did not activate his police lights. When he made the turn, he saw the applicant’s vehicle pull over to the right side of the road, near a bridge, about 200 to 250 metres away. The vehicle stopped briefly, for about 5 to 10 seconds, and then drove off. Det. Cst. Statham did not see the driver do anything. He did not see any of the car windows or doors open. He saw nothing discarded from the car. He said the car accelerated aggressively from its stopped position and continued to drive west on Fitzpatrick Drive.

[26] He agreed that in his notes, he recorded that the car drove away at a higher speed. He did not describe the car accelerating “aggressively” as he testified.

[27] Det. Cst. Statham stopped his cruiser briefly, for three seconds, near the bridge as he thought something may have been thrown from the car, but he saw nothing. He did not get out of his cruiser. When asked on cross-examination why he would suspect that something was thrown from the car by the applicant, his evidence was it was based on what happened up to that point. He agreed that up to that point, the only unlawful conduct he observed was the rolling stop at a red light. He also testified that he was suspicious about the stop near a bridge, based on the immediate left turn made by the applicant from Gore Road to Fitzpatrick Drive.

[29] After stopping briefly on the bridge and glancing briefly to see if anything was thrown from the car, Det. Cst. Statham then followed the Hyundai west on Fitzpatrick Drive. He did not activate his police lights, as he saw that the vehicle had already turned right onto Julian Drive.

[30] Det. Cst. Statham testified that when he turned right onto Julian Drive, he could see the applicant’s car turn left onto Castlemore Road. Again, he decided not to activate his police lights. He turned left to drive west on Castlemore Road. There are three lanes for traffic travelling west. He again tried to access information from the MTO, but it was still not in service. At that point he activated his light and after a few seconds, the applicant pulled over in the curb lane and stopped.

[31] Det. Cst. Statham agreed on cross-examination that when he decided to pull the applicant over for a HTA offence there was nothing the applicant had done to raise concerns for officer safety. He agreed that in addition to activating his emergency lights, he also activated the emergency siren....

[32] Det. Cst. Statham testified that he stopped his police cruiser about two car lengths behind the applicant’s car. He walked up to the driver’s door. He intended to issue a ticket under the HTA. He told the applicant he was being stopped for failing to stop at a red light. He also mentioned the “odd” behaviour at the bridge.

[33] He denied asking the applicant why he drove into a neighbourhood where there were high-end homes. He agreed that at the preliminary hearing, he testified that he did not recall asking that question but said that it was possible.

[34] … When the applicant gave him his driver’s licence, Det. Cst. Statham returned to his cruiser. His evidence was that at that point the investigation changed, as he believed the applicant had unlawful identification documents in his possession, which was a Criminal Code offence. He then contacted dispatch to ask for another unit to attend. Cst. Wong attended at the scene in his cruiser at 7:51 a.m.

[35] The applicant got out of his car and approached the cruiser. Det. Cst. Statham exited and told him to place his hands on the trunk and told the applicant he was being arrested for the possession of identity documents. He then conducted a search of the applicant and found a plastic baggie with a small amount of white powder in the applicant’s pocket that he thought might have been cocaine. The applicant was then placed in the rear of Det. Cst. Statham’s cruiser and he read him his right to counsel and caution.

[36] After placing the applicant in his car, Det. Cst. Statham spoke to Cst. Wong who arrived on scene in his car. He told Cst. Wong that the applicant was in custody for possession of identity documents and drugs and asked Cst. Wong to search the applicant’s car.

[38] He denied that the decision to follow the car, run the plate, stop the car, and arrest the applicant was because he was a Black male.


a) Legal Framework

[40] The existence of racial profiling is no longer an issue. It is wrong and cannot be tolerated. It must be condemned.

[41] What do we mean by racial profiling? In R v. Brown, 64 O.R. (3d) 161, [2003] O.J. No. 1251 (QL) the court expressed the definition and the test for making a finding of racial profiling at paras. 7 and 44 as follows:

Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this contest, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.


A racial profiling claim could rarely be proven by direct evidence. This would involve an admission by a police officer that he or she was influenced by racial stereotypes in the exercise of his or her discretion to stop a motorist. Accordingly, if racial profiling is to be proven it must be done by inference drawn from circumstantial evidence.

[42] To be clear, racial profiling is not the same as racism. As it can be unconscious on the part of the officer, it can be difficult to prove, as there will rarely be an admission by an officer that s/he was engaged in racial profiling. In most circumstances, it must be proven by inferences drawn from circumstantial evidence. The onus is on the party alleging racial profiling to prove it on a balance of probabilities.

[43] Even if there is a legitimate purpose for the police conduct, such as stopping a vehicle for an HTA violation, that conduct or stop will be constitutionally tainted if there is any racial profiling involved in the police conduct: Peart v. Peel Regional Police Services, (2006) 217 O.A.C. 269 at paras. 91, 94 and R v. Dudhi, 2019 ONCA 665 at para. 59.

[44] In R v. Holloway, 2021 ONSC 6136, at paras. 41-61, my brother Justice D. E. Harris thoroughly discussed the general principles regarding racial profiling. At para. 41, he noted that there was both an attitudinal and behavioural component to racial profiling.

[45]  In addressing the attitudinal component, he noted the following at para. 44:

Racial profiling is a direct product of the systemic racism afflicting our society. It has been almost thirty-years since the ground-breaking jury challenge decision in R. v. Parks (1993), 15 O.R. (3d) 324, 84 C.C.C. (3d) 353 (Ont.C.A.). Doherty J. said in Parks at para. 54,

Racism, and in particular anti-black racism, is a part of our community’s psyche. A significant segment of our community holds overly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism. Blacks are among the primary victims of that evil.

[46]  Justice Harris also touched on, at para. 47, the social science with respect to the policing of black persons and referenced Le where the court concluded:

We do not hesitate to find that, even without these most recent reports, we have arrived at a place where the research now shows disproportionate policing of racialized and low-income communities (see D. M. Tanovich, “Applying the Racial Profiling Correspondence Test” (2017), 64 C.L.Q. 359).

[47] Justice Harris at para. 49 cited Peart, where Justice Doherty noted the following at para. 90 of that case:

A police officer who uses race (consciously or subconsciously) as an indicator of potential unlawful conduct based not on any personalized suspicion, but on negative stereotyping that attributes propensity for unlawful conduct to individuals because of race is engaged in racial profiling: see Kent Roach, “Making Progress on Understanding and Remedying Racial Profiling” (2004) 41 Alta. L. Rev. 895 at 896.

[48] Justice Harris discussed the concepts of racial profiling and racial stereotypes and noted, at para. 51, that behind racial profiling lies a racial stereotype. In discussing stereotypes, Justice Harris commented as follows at para. 55:

Stereotypes divert scrutiny of individuals, replacing it with pat generalities. Stereotypes are by nature anti-evidentiary. They sacrifice looking at the individual for a ready-made general inference blind to the specifics. In dealing with the profiling of travellers who fit the modus operandi of drug couriers, on its face, a non-discriminatory mode of profiling, the Supreme Court said in Chehil at para. 40: “Profile characteristics must be approached with caution precisely because they risk undermining a careful individualized assessment of the totality of the circumstances.” The criminal law and the Charter have always emphasized the critical importance of sensitivity to the individual and to the evidence.

[49] Justice Harris then discussed the behavioural component of racial profiling and noted at paras. 60 and 61:

For a person with the racist attitude to avoid its pernicious effects, after recognizing its presence, self-corrective steps must be taken to ensure the behaviour underlying racial stereotyping is neutralized or at least minimized. In the jury selection process, the Supreme Court of Canada has recently recognized the importance of this self-reflective process: R. v. Chouhan, 2021 SCC 26 (S.C.C.) at paras. 49, 54, and 59. A capacity for introspection is indispensable. This varies a good deal from person to person.

The reflective, corrective mental process critical of one’s false racist intuitions is also to a significant degree situation dependant. Looking back on the acts of others, as lawyers and judges do in a trial context, is a perspective which benefits from the opportunity and the privilege of reflection. On the other hand, police officers engaged in law enforcement must think and act quickly. Their safety and that of others may hang in the balance. Little time is permitted for sustained reflection or for the recognition that racial stereotypes may be intruding on their judgment.

[50] It is unnecessary to find that an officer lied in order to make a finding of racial profiling: R v. Sitladeen, 2021 ONCA 303.

b) Was there Racial Profiling?

[51] … The stop will nonetheless be invalid and there will be a breach of s. 9 of the Charter if it is tainted by racial profiling to any degree: Sitladeen.

[52] I want to be clear that I do not find that Det. Cst. Statham was engaged in any conscious racial profiling. I accept his evidence that he believes that his decision to stop the applicant’s vehicle was not impacted by the applicant’s race. That does not end the analysis, however, as we now understand that people’s actions and beliefs can be influenced or motivated by unconscious bias. I must, therefore, determine whether an inference of racial profiling can be drawn from the totality of the circumstantial evidence surrounding the decision to follow and stop the applicant.

[54] The attitudinal component of racial profiling suggested in this case is that Det. Cst. Statham relied on racial stereotypes that suggest a young Black man making a left turn must have been engaged in countersurveillance activities which suggests an involvement with criminal activity, particularly as he entered an isolated neighbourhood of high-end homes. The causational component requires that the raced-based thinking subconsciously played a role in Det. Cst. Statham’s decision to follow and then stop the applicant’s vehicle for an HTA stop. While that stop itself was justifiable, where race or racial stereotypes are used to any degree to select the suspect, it is racial profiling: Peart at para. 91.

[55] I start my analysis regarding my observations of Det. Cst. Statham. He testified in a forthright manner. He was not defensive when cross-examined, even when challenged with his prior testimony at the preliminary hearing or challenged with his notes. My only concern was an attempt to exaggerate his evidence in-chief with respect to the operation of the applicant’s vehicle at two key moments. My sense was that while he did not fabricate any evidence, Det. Cst. Statham exaggerated his evidence regarding the movement of the applicant’s vehicle at these two particular important moments to explain his concerns or suspicions regarding the manner in which the applicant was operating his vehicle prior to the HTA stop.

[57] While I accept Det. Cst Statham’s evidence that his decision to run the applicant’s licence plate was done as part of his normal patrol activities, and not as a result of the applicant’s race, I am mindful that he made that decision having seen that the applicant was a young Black male. While that decision in and of itself would not rise to the level of a finding of racial profiling, it is part of the evidentiary matrix I have considered in concluding that the stop of the applicant’s car was tainted by racial profiling.

[58] I find that race unconsciously factored into the officer’s misperception that the applicant was undertaking a countersurveillance maneuver or “was up to something else” when he made a lawful left turn from Gore Road onto Fitzpatrick Drive. Up to that point, Det. Cst. Statham was following the applicant for a very short period of time and, again, the only concern he had with the applicant’s driving was the rolling stop through a red light, which I consider to be quite a ubiquitous driving maneuver many of us do from time to time. In my view, the officer was suspicious about a lawfully made left turn as he was subconsciously using the applicant’s race as an indicator of potential unlawful conduct. Up to that point, there was no other basis for his conclusion that this left turn was a “heat check” and that the applicant may have been “up to something else”.

[59] It is illogical that the failure to bring a car to a complete stop at a red light, in the absence of any other unlawful or concerning behaviour, could lay the foundation for the officer to become suspicious about a subsequent lawful left turn unless race, subconsciously, played a role in reaching that conclusion. Rather than consider that the applicant might have a reason for being in that neighbourhood, or making that left turn, Det. Cst. Statham immediately, in mere seconds, concluded that a regular left turn was “intriguing,” despite the applicant doing nothing suspicious up to that point other than failing to come to complete stop at a red light. It is also a stretch that the rolling stop was the basis for Det. Cst. Statham being suspicious that the applicant might be up to something else when he made the left turn. This accords with the idea that subconsciously, the officer was motivated by the applicant’s race and the negative stereotype that young Black males have a propensity for unlawful conduct.

[60] Several times, Det. Cst. Statham described this left turn as “quick”. I was initially left with the impression that this described the speed of the applicant’s car as he tried to avoid police detection. On cross-examination Det. Cst. Statham agreed that he did not use “quick” in his notes. He also agreed that the applicant activated his left turn indicator, slowed down, and made the turn safely and lawfully. My impression was that Det. Cst. Statham used the term “quick” rather than simply testify that the applicant made a left turn at the first street off of Gore Rd to support his view that the turn was suspicious.

[61] Det. Cst. Statham’s explanation for being suspicious about this left turn was based on his experience of seeing other drivers make immediate left turns as a “heat check” to detect if they are under surveillance by the police. While police officers are trained to detect countersurveillance measures undertaken by drivers, based on what the officer had observed of the applicant to that point, there was nothing to support his suspicion that the applicant was trying to do a “heat check” by making this left turn. I therefore reject his explanation for being suspicious about the left turn.

[62] When the officer saw the applicant stop his car briefly on Fitzpatrick Drive, he admitted that he made no other observation such as the car windows rolling down or anything being thrown from the car. Nonetheless, Det. Cst. Statham concluded that the applicant stopped his car to dispose of something from the car, which he agreed could have been drugs or a firearm. His concern that something might have been discarded led him to also briefly stop his police cruiser to look around the area.

[64] Just as I found the rolling stop was not a rational basis for Det. Cst. Statham to be suspicious of the left turn onto Fitzpatrick Drive, there was, similarly, no basis to be suspicious of the brief stop on Fitzpatrick Drive. I draw the same inference from this circumstantial evidence that Det. Cst. Statham’s suspicions that the applicant was attempting to discard something, resulted from unconscious racial profiling.

[65] …He testified that the applicant drove away “aggressively.” He agreed that he did not use that word in his notes but recorded that the applicant drove away at a higher speed.

[66] In my view, the use of the term “aggressive” when he testified was meant to convey the impression that the applicant was engaged in some kind of nefarious activity when he briefly stopped his car on Fitzpatrick Drive and was trying to evade police detection.

[67] It is also concerning that after observing a rolling stop, Det. Cst. Statham followed the applicant’s vehicle for five minutes, on a number of streets, making several turns, without attempting to stop the applicant’s car by activating his emergency lights. When Det. Cst. Statham eventually decided to stop the applicant’s car, not only did he activate his lights, but he also activated his emergency siren, which he testified he only does if a car does not respond to the lights. In this case, the evidence is that he activated both, without first attempting to stop the vehicle using only his emergency lights. Why did an HTA breach of failing to come to a complete stop at a stop light warrant such a response? The inference is that it resulted from racial profiling.

[68] Det. Cst. Statham could have activated his emergency lights immediately after he saw the applicant make a left turn on a red light without coming to a complete stop. His explanation that he wanted to get the MTO results first rings hollow because he ultimately made the stop without that information.

[69] Furthermore, I am not satisfied that the applicant was even aware that he was being followed by a police vehicle. The evidence is that the police car Det. Cst. Statham was driving was a “sleeper” car. While it had grey markings on it, it was purposely designed to be a vehicle that initially avoids the detection that a standard police cruiser would encounter….

[70] Based on the totality of the evidence, I find that Det. Cst. Statham’s conduct, prior to the stop of the applicant’s vehicle, was subconsciously tainted by racial profiling.


[71] I have drawn the inference that racial profiling was involved in the stop of the applicant’s car from the totality of the following circumstantial evidence:

i)   The decision to run the vehicle’s licence plate;

ii)  The officer’s suspicion that the applicant was engaged in countersurveillance and may be up to something else based on a lawful left turn into a neighbourhood with high-end homes;

iii)  The officer’s suspicion that the applicant was discarding something from his car, that he agreed could have been drugs or a firearm, when he saw the car stop briefly;

iv)  The officer’s immediate activation of both his emergency lights and siren for a standard HTA stop in the absence of evidence that the applicant’s vehicle did not first respond to the emergency lights.

[72] Based on the totality of this circumstantial evidence, the inference I draw is that the officer’s conduct prior to the stop of the applicant’s vehicle, was subconsciously tainted by racial profiling. The applicant has met his onus on a balance of probabilities and the evidence is therefore excluded.