This week’s top three summaries: R v Dudhi, 2019 ONCA 665, R v AM, 2019 SKPC 46, and R v Young, 2019 ONSC 4890.

R v Dudhi (ONCA)

[Aug 22/19] Charter s.9 - Racial Profiling to Any Extent - 2019 ONCA 665 [Reasons by David M. Paciocco J.A. with David Watt J.A. and Gary Trotter J.A. concurring]

AUTHOR’S NOTE: Racial profiling is like a virus - it infects any other attempt at legitimate policing causing illness to the system as a whole.  Justice Paciocco herein outlines that it need not be the cause of Charter-infringing state act, it just has to contribute.  Further, it cannot be cured by a potentially legal route to the state action.  If it is present, the justice system needs to amputate - the violation is established.  Herein, the trial judge incorrectly ignored racial profiling in the s.9 analysis because there was objectively another way the officer could have gotten to the decision to stop the vehicle; one the officer claimed was his reason.  The decision of the trial judge reflects the typical hesitance of judges to find racial profiling where they see it.  The Appeal decision provides defence counsel with the ammunition to demand that racial profiling should affect the result of their client's cases, even where it is not the only motivating factor for police interactions.

Pertinent Facts

"During the arrest of Rusheed Dudhi, a man of colour, the arresting officer made a comment over the radio to his police colleagues about "brown" drug dealers. Mr. Dudhi relied on that comment and on the surrounding circumstances to argue that he was racially profiled and therefore arbitrarily detained, contrary to s. 9 of the Charter. While the comment clearly troubled the trial judge, he did not agree that an arbitrary detention took place. In his view, there was no link between the comment and the reason for the arrest." (Para 1)

"However, the trial judge did find a separate s. 9 breach, because he concluded that Mr. Dudhi's arrest for breach of recognizance was precipitous and unreasonable on a different basis. The arresting officer had seen Mr. Dudhi using a cellphone, but the arresting officer had reason and the means to inquire into whether the recognizance condition prohibiting Mr. Dudhi from possessing a cellphone was still in force. The arresting officer nonetheless relied on that condition to go ahead with the arrest, without checking. As it happened, the condition had been varied and Mr. Dudhi was no longer prohibited from possessing a cellphone." (Para 2)

"Notwithstanding the breach, the trial judge declined to exclude the narcotics found in Mr. Dudhi's vehicle on the basis that the admission of this evidence would not bring the administration of justice into disrepute." (Para 3)

"On September 16, 2014, Cst. James Clayton of the Hamilton Police Service was conducting undercover surveillance in connection with a drug investigation. One of the vehicles of interest to the surveillance team was a blue BMW being driven by a white male." (Para 6)

"In the very late afternoon, he saw a vehicle that matched that description — a BMW of the same colour and model driven by Mr. Dudhi. Cst. Clayton followed in his unmarked car." (Para 7)

"Within a minute of asking for confirmation of the original target vehicle's license plate, Cst. Clayton noticed that the vehicle he had encountered was not being driven by the white suspect he was looking for, but by a black man. He called off the request for the license plate of the suspect vehicle, saying "[d]isregard. It's the wrong guy here."" (Para 10)

"Within roughly 30 seconds, Cst. Clayton asked Cst. Oosterhoff to run the license plate of Mr. Dudhi's BMW. He explained:

And I got eyes on a blue BMW that there's a middle age black guy driving, and he's uh, looking for someone, driving around. He's parked over in this plaza near the Montana's and uh, he was mean mugging me hard so I'm going to pay attention to this guy." (Para 11)

"In his evidence-in-chief, Cst. Clayton did not use the expression "mean mugging" when describing what prompted his interest in Mr. Dudhi. He testified that when he was in the parking lot, with no other vehicles around, Mr. Dudhi drove in front of his vehicle. Cst. Clayton testified in cross-examination that he believed that Mr. Dudhi was engaging in some counter-surveillance." (Para 12)

"After being told of Cst. Clayton's interest in Mr. Dudhi, Cst. Oosterhoff asked, "[w]ant me to call the plate in?" Cst. Clayton replied, "[v]ery much so."" (Para 13)

"Approximately one minute later, Cst. Clayton asked "[a]nything on that plate Darryl?" (Para 15)

"Cst. Oosterhoff replied:

It's taking me so long because it's such a good one. [The Records Clerk is] going to pull more conditions from the file. So it's Rusheed Dudhi born in "88". He's accused with us on a [recognizance] of failure to comply x 2 and [possession for the purpose of trafficking]. Conditions include no contact with people of criminal record, curfew 9 p.m., no drugs and no cell phone or telecommunication device or pager, etc. [Emphasis added.]" (Para 16)

"In fact, Cst. Clayton did not wait for all of Mr. Dudhi's conditions to be pulled from the file. He responded, "[w]ell he's on a cell phone, get your butt over here." He directed Cst. Oosterhoff to "take him down in his car."" (Para 17)

"Cst. Clayton pursued Mr. Dudhi in his unmarked car, radioing the surveillance team of the BMW’s movements. He commented while doing so, “[d]efinitely a drug deal and he’s definitely picked up.”" (Para 21)

"Mr. Dudhi drove in what Cst. Clayton concluded, and the trial judge accepted, was an evasive manner." (Para 22)

"Cst. Michael O’Hagan, who had joined in the pursuit, also joined in the radio conversation. He asked, referring to the original surveillance suspect, “[i]s this our target?”" (Para 23)

"Cst. Clayton responded: “[n]o, it’s another brown guy who is a drug dealer” (emphasis added). These are the key words relied upon by Mr. Dudhito establish his racial profiling claim." (Para 24)

"When the officers were in a position to do so, they “took down” the BMW by boxing it in at an intersection." (Para 25)

"Mr. Dudhi immediately indicated that his "no cellphone" release condition had been varied. He eventually produced a judicial interim release order dated June 1, 2012, which allowed him to possess a single cell phone, the number of which was to be provided to Det. Read of the Hamilton Police Service. But before Mr. Dudhi produced this order, the officers noticed that, in addition to the cellphone he had in his hand, there was another cellphone in the centre console of the vehicle. So, they continued the arrest." (Para 26)

"Mr. Dudhi was searched, as was the interior of his vehicle. The officers testified at trial that this warrantless search was conducted incident to arrest, for further evidence of a breach of recognizance offence. They denied that they were conducting a drug search." (Para 27)

"During the search of the car, in the recessed well under the loose plastic cover of the rear seat fold down armrest, Cst. Oosterhoff found a concealed compartment with a finger hole to permit opening. Inside he located 497.32 grams of cocaine, having a street value of $28,000 to $35,000." (Para 28)

"The trial judge accepted Mr. Dudhi's first s. 9 argument:

I find that proceeding with an arrest on the basis of information that all concerned knew was incomplete was both arbitrary and not objectively reasonable and the stop and arrest was therefore a breach of Dudhi's right under section 9 of the Charter to be free from arbitrary detention." (Para 36)

"After confirming that there would be no re-examination, the trial judge asked follow-up questions:

Q: Officer, the original target . . . was he also a black?

A: He was a white male.

Q: So can you help me with what you meant by "another brown guy"?

A: Another drug dealer, that was my reference, and he was a brown male. There's no racial overtones to suggest that I'm targeting someone of race. It was a drug investigation originally, being — a blue BMW motor vehicle being driven by a white male. My investigations are never racially motivated or targeted, only through police intelligence and observations.

Q: But you didn't say "another drug dealer".

A: That's correct." (Para 38)

"During argument on the Charter motion, the trial judge made it clear that he was having difficulties accepting that a racial profiling Charter breach had been made out. His concerns focused on the timing of Cst. Clayton's impugned statement, after Cst. Clayton had formed his grounds for arrest. He challenged Mr. Dudhi's counsel on this:

And my only point is that it's not clear to me how I can take that objectionable statement and transfer it back to what happened at the mall." (Para 39)

"The trial judge addressed the racial profiling challenge only briefly in his decision, rejecting it with these words:

The comment "another brown guy who is a drug dealer" does not reflect well on Officer Clayton. His explanation for why he used that expression was not convincing. Nevertheless the comment was made after he had information on the basis of which he legitimately believed he had grounds to arrest Dudhi and after his interest in Dudhi had been legitimately tweaked by Dudhi's behaviour at the mall. In other words, although there is a suggestion of racialized thinking inherent in the remark, it did not inspire any precipitous or improper action." (Para 41)

"The trial judge did not find that a s. 8 breach occurred either. The Crown conceded before us that he should have. To rely on the search incident to arrest power requires a lawful arrest, and the trial judge found that Mr. Dudhi's arrest was arbitrary. The entire arrest was tainted, as was the search conducted incident to it." (Para 42)

"Notwithstanding the s. 9 breach he did find, the trial judge admitted into evidence the drugs found in the vehicle, based on the factors set out in R. v. Grant, 2009 SCC 32 (CanLII), [2009] 2 S.C.R. 353. The trial judge concluded that the failure by the officers to “dig deeper” into the status of Mr. Dudhi’s release conditions was not a deliberate effort to circumvent Charter rights, and “falls closer to the less serious negligence or lack of due diligence end of the continuum”." (Para 44)

Charter s.9 and Racial Profiling

"Racial profiling has two components: (1) an attitudinal component; and (2) a causation component. As Brown and Martin JJ. explained in R. v. Le, 2019 SCC 34 (CanLII), at para. 76, for the majority of the Court:

[T]he concept of racial profiling is primarily concerned with the motivation of the police. It occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment. [Citations omitted.]" (Para 54)

"The attitudinal component is the acceptance by a person in authority, such as a police officer, that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous: Peart v. Peel Regional Police Services Board (2006), 2006 CanLII 37566 (ON CA), 43 C.R. (6th) 175 (Ont. C.A.), at para. 90, leave to appeal dismissed, [2007] S.C.C.A. No. 10. The causation component requires that this race-based thinking must consciously or unconsciously play a causal role. Meaning, race or the racial stereotype must motivate or influence, to any degree, decisions by persons in authority regarding suspect selection or subject treatment." (Para 55)

"There are passages in the case law that can be taken to suggest that racial profiling does not occur unless there is no reasoned foundation for the suspect selection or subject treatment other than race or racial stereotyping. In other words, if there is other information that would meet the required legal standard – whether that required legal standard is “reasonable suspicion” [also known as “articulable cause”] or “reasonable grounds” – racial profiling does not exist even if race or racial stereotypes contribute to suspect selection or subject treatment." (Para 56)

"As Brown and Martin JJ. said in Le, at para. 76, racial profiling occurs where race or racial stereotypes are used “to any degree in suspect selection or subject treatment” (emphasis added). Similarly, in Peart, at para. 91, Doherty J.A. explained:

[Racial profiling] is wrong regardless of whether the police conduct that racial profiling precipitates could be justified apart from resort to negative stereotyping based on race. For example, a police officer who sees a vehicle speeding and decides to pull the vehicle over in part because of the driver’s colour is engaged in racial profiling even though the speed of the vehicle could have justified the officer’s action: Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA), 131 C.C.C. (3d) 1 (Ont. C.A.). [Emphasis added.]" (Para 59)

"The case law that relates racial profiling to the absence of reasonable suspicion or reasonable grounds must be understood in the context of the principle that policing decisions based on race or racial stereotypes are not, by definition, objectively reasonable decisions. For example, in R. v. Brown, at para. 10, Morden J.A. cited Brown v. Durham Regional Police Force in explaining that “[i]f a police officer stops a person based on his or her colour (or on any other discriminatory ground) the purpose is improper and clearly would not be an articulable cause” (citations omitted)." (Para 60)

"In my view, it is self-evident that a decision need not be motivated solely or even mainly on race or racial stereotypes to nevertheless be "based on" race or racial stereotypes. If illegitimate thinking about race or racial stereotypes factors into suspect selection or subject treatment, any pretence that the decision was reasonable is defeated. The decision will be contaminated by improper thinking and cannot satisfy the legal standards in place for suspect selection or subject treatment." (Para 62)

"This outcome is sensible, even leaving aside questions about what reasonableness entails. If objective considerations could negate improper subjective reliance on race or racial stereotypes, the subjective component of these legal standards would be ignored. That should not be. As was recently explained in R. v. Lai, 2019 ONCA 420 (CanLII), at paras. 29-30, the subjective component of the relevant legal standards plays an important role in ensuring that the police act for legitimate purposes and turn their minds to the legal authority they possess: see also R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 27. A body of law that permits officers to exercise their power when subjectively, their decisions are influenced by race or racial stereotypes, has little to commend it." (Para 64)

"Moreover, it would undermine other relevant interests at stake to accept that racial profiling does not occur even when race or racial stereotypes influence a decision, unless there is no reasonable foundation for that decision. In Peart, Doherty J.A. explained in simple terms, at paras. 91 and 93, why racial profiling is “wrong”. It is “offensive to fundamental concepts of equality and … human dignity”. It not only undermines effective policing by misdirecting resources and alienating members of the community, it “fuels negative and destructive racial stereotyping”. This mischief, including the offence against equality and human dignity, operates whenever race or racial stereotypes contaminate decision-making by persons in authority." (Para 65)

"In sum, there are two components to racial profiling. The first is the attitudinal component, which is the acceptance by a person in authority that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous. The second is the causation component, which requires that this race-based thinking consciously or unconsciously motivate or influence, to any degree, decisions by persons in authority in suspect selection or subject treatment." (Para 66)

Application to this Case

"The trial judge committed two errors in his racial profiling reasoning, each relating to the causation component. First, he believed improperly that the racist comment made by Cst. Clayton could not support a racial profiling finding because it was uttered after the decision to arrest had already been made. Second, he gave undue weight to what he felt were reasonable grounds that would have justified Mr. Dudhi's arrest in any event." (Para 67)

"First, as indicated, the trial judge gave undue and improper emphasis to the timing of the impugned statement – the fact that it was made after Cst. Clayton had already decided to arrest Mr. Dudhi." (Para 74)

"To understand the problem with this thinking, it is helpful to appreciate that racial profiling is as difficult to prove as it is pernicious. As Doherty J.A. recognized in Peart, at para. 95:

Racial profiling can seldom be proved by direct evidence. Rather, it must be inferred from the circumstances surrounding the police action that is said to be the product of racial profiling." (Para 75)

"This makes it necessary for judges to consider all of the circumstances surrounding the police action. The trial judge failed to do so because he allowed the timing of the statement to dull its impact." (Para 76)

"It was an error for the trial judge to isolate the officer’s comment in this way. It is well established that after-the-fact conduct by an accused person can be important circumstantial evidence in revealing their earlier state of mind: R. v. White, 2011 SCC 13 (CanLII), [2011] 1 S.C.R. 433. Similarly, if an officer’s state of mind is a material issue that officer’s relevant subsequent conduct, including comments made by the officer, can equally be used as circumstantial evidence of the officer’s earlier state of mind. Here, the comment reflected an attitude or belief, and attitudes or beliefs do not come and go in the moment. They are held. This is an important circumstance that remains relevant, even where a statement revealing the attitude or belief is made proximate to, but after, an impugned decision has been made. In those rare cases where conscious or unconscious racist attitudes or beliefs are exposed by evidence at trial relating to the event in question, the trial judge must closely consider whether the attitudes or beliefs – shown to be held by the officer at the time – may have contributed to the decision made. This can only properly be done by closely examining all of the circumstances of the case." (Para 78)

"Here, for example, there was other evidence consistent with racial profiling. Mr. Dudhi is a man of colour who was driving an expensive car, a well-known risk factor for racial profiling: R. v. Smith, 2015 ONSC 3548 (CanLII), 338 C.R.R. (2d) 1, at paras. 182-183; R. v. Khan (2004), 2004 CanLII 66305 (ON SC), 189 C.C.C. (3d) 49 (Ont. S.C.), at para. 68. Within roughly 60 seconds of recognizing that Mr. Dudhi was not the suspect who was to be put under surveillance, Cst. Clayton communicated Mr. Dudhi’s skin colour when describing his suspicious behaviour. Cst. Clayton also precipitously chose to arrest Mr. Dudhi before completing his inquiry into the release conditions. These features do not make inevitable a finding that Cst. Clayton was racial profiling at the time but, as I say, they are consistent with racial profiling. The trial judge should have paid closer attention to these features of the case when considering whether the attitude reflected in Cst. Clatyon’s “brown guy who is a drug dealer” comment may have influenced the decision he made to arrest Mr. Dudhi." (Para 79)

"Of course, here the trial judge did not find that Cst. Clayton lied directly about why he singled out Mr. Dudhi for attention. But the trial judge did find that Cst. Clayton gave incredible testimony about why, in the course of the arrest, he made a comment that portrayed racist thinking. The trial judge should have considered whether the officer’s attempt to deny that the comment was racist was an attempt to mask the thinking that went into the decisions the officer made." (Para 81)

"The trial judge also erred by giving undue weight to the presence of reasonable grounds in defeating a racial profiling finding." (Para 82)

"The trial judge then continued, "[i]n other words, although there is a suggestion of racialized thinking inherent in the remark, it did not inspire any precipitous or improper action."" (Para 83)

"I am troubled by the trial judge's use of the phrase "in other words". This phrase equates the presence of reasonable grounds with the conclusion that the "racialized thinking inherent in the remark" did not inspire improper action. There is no such fast link. The presence of reasonable grounds does not disprove racial profiling." (Para 84)

"As described, racial profiling can exist, “regardless of whether the police conduct that racial profiling precipitates could be justified apart from resort to negative stereotyping based on race”: Peart, at para. 91." (Para 85)

Errors in the Charter s.24(2) Analysis

"If racial profiling did occur, this is an aggravating factor that elevates the seriousness of the breach: R. v. Li, at para. 78." (Para 88)

"First, I cannot accept the trial judge’s finding that the failure of the officers to “dig deeper” before arresting Mr. Dudhi “falls closer to the less serious negligence or lack of due diligence end of the continuum.” This conclusion reflects an error in principle: the continuum spans good faith to bad faith. Negligence or the lack of due diligence does not fall at either end of that continuum. In Le, at para. 143, Brown and Martin JJ. observed that good faith “is not demonstrated by pointing to mere negligence in meeting Charter standards”, and that courts may be required to dissociate themselves from evidence obtained as a result of police negligence in meeting Charter standards. The negligence demonstrated by the officers in this case is far removed from good faith and actually sits more proximate to the bad faith end of the breach spectrum: R. v. Morelli, 2010 SCC 8 (CanLII), [2010] 1 S.C.R. 253, at paras. 100-103; R. v. Dhillon, 2010 ONCA 582 (CanLII), 260 C.C.C. (3d) 53, at paras. 49-51; R. v. Burke, 2009 QCCA 85 (CanLII), 312 D.L.R. (4th) 196, at paras. 76-82, aff’d on other grounds, 2009 SCC 57 (CanLII), [2009] 3 S.C.R. 566." (Para 90)

"Second, I cannot agree with the trial judge’s view that even had the police learned that the cellphone prohibition had been varied, they could have stopped Mr. Dudhi in any event under the authority of the Highway Traffic Act. I agree with Mr. Dudhi’s submission on this point. Had the police used the Highway Traffic Act to pursue a drug investigation, this would have been a pretence stop, contrary to the Charter: R. v. Harris, 2007 ONCA 574 (CanLII), 225 C.C.C. (3d) 193, at paras. 30-32, 63; Brown v. Durham Regional Police Force, at paras. 31, 38-39." (Para 91)

"Given the legal errors I have identified, I would allow the appeal, set aside the convictions, and order a new trial." (Para 93)

R v AM (SKPC) 

[Aug 1/19] Charter s.7/11(d) - Reverse Disclosure Obligations in a Sexual Assault Case [the Ghomeshi amendments to the Criminal Code] - 2019 SKPC 46 [B.D. Henning, J.]

AUTHOR’S NOTE: In December of 2018, the Federal Government enacted amendments to the Criminal Code that now require defence lawyers to disclose evidence in their possession directly to complainants of sexual assault.  As cases make their way through the system, the amendments as a whole have proven to be clunky, poorly thought out, and have resulted in significant delays in litigation.  This particular part of the regime has removed the ability of defence lawyers to test the evidence of sexual assault complainants with their own words reduced to writing in emails, texts, and on social media.  In other words, complainants now have to be put on notice of the very contents of the evidence that might prove they are lying in advance of trial.  This process undermines the purpose of a trial: the testing of credibility and reliability of witnesses. In this decision, Judge Henning gives some hope to defence lawyers hoping return functionality to sexual assault trials through a constitutional exemption from the reverse disclosure amendments. 

Pertinent Facts

The accused challenged sections 278.92(1), 278.92(2)(b) and 278.94(2) under ss. 7 and 11(d) of the Charter (Para 2)

"The Supreme Court has stated in R v Lloyd, 2016 SCC 13 (CanLII) at para 15, [2016] 1 SCR 130 [Lloyd]:

Provincial court judges are not empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982; only superior court judges of inherent jurisdiction and courts with statutory authority possess this power. However, provincial court judges do have the power to determine the constitutionality of a law where it is properly before them. As this Court stated in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 316, “it has always been open to provincial courts to declare legislation invalid in criminal cases. No one may be convicted of an offence under an invalid statute.” (Para 4)

"The Applicant had filed other notices for matters not part of the proceeding at this time. A notice under section 278.93 (for a hearing under section 278.94) of the Criminal Code was filed which stated that the material in possession of the Applicant consisted of a diary and text messages to a third party that were written by the complainant in the matter. The defence has asserted that there is not a direct sexual aspect to this material, although they could raise a possible privacy interest. Given the development and nature of electronic communication it is perhaps to be expected that material in the possession of an accused person would often include text or email messages." (Para 7)

"It is to be noted that the material described in section 278.92(1) does not necessarily have a sexual aspect or an aspect of being sensitive personal information, whereas the previous categories of restricted material related unequivocally to past sexual conduct or sensitive personal information with a high privacy interest. The earlier processes could therefore be related directly to the elimination of what is sometimes referred to as the 'twin myths' that are set out in section 276(1) of the Criminal Code as well as other desirable social goals of encouraging the reporting and prosecution of sexual offences." (Para 9)

"The essence of the Applicant's position is that the new requirements of section 278.92 not only restricts the use of material already in possession of an accused person, but the use that they might be put to in cross-examination must be disclosed to a complainant and his or her legal counsel at the outset of the process to consider whether such material may be used. The right to legal counsel for a complainant has also been extended to the process under section 276(2) of the Criminal Code, but that is not relevant to the consideration of this matter. Involvement of a complainant in the legal question of the relevance and use of material was enacted as further protection to complainants in sexual assaults from improper lines of inquiry that might deter such complaints from coming forward and proceeding. However, the effect is also to possibly diminish the rights to full answer and defence that have been recognized under sections 7 and 11 of the Charter. These rights must be balanced with the rights of a complainant and social policy with respect to sexual assault prosecutions." (Para 17)

The Right to a Fair Trial and Cross-Examination

"At paragraph 22 of the Crown Prosecutions brief, the case of R v Boone, 2016 ONCA 227 (CanLII) [Boone] was cited which contains some statements that recognize the challenge to the defence where consent or other issues exist that are difficult to prove or disprove.  The case emphasizes that such difficulties do not justify bending or distorting the law to permit easier defence.  However, the Court also observed: “it is always open to an accused to challenge the complainant’s credibility in other ways by exposing prior inconsistent statements and general lack of veracity”.  Inconsistent statements in emails were a prominent feature of the Ghomeshi, case, and the use of such material in cross-examination was recognized by the Court in Boone as a prime way of challenging veracity of a complaint, a point very much emphasized by the Applicant. The Crown asserts that the provisions in Bill C-51 and section 278.94 are reasonable limits on cross-examination notwithstanding any effect of disclosure on the efficacy of cross-examination." (Para 31)

"However, the main argument, in my opinion, presented by the Applicant focuses on the effect of notice regarding records in possession of an accused person that would be used in cross-examination, and the effect of disclosure on the efficacy of cross-examination. It is relevant to note, in my opinion, that under the law of evidence in criminal cases, cross-examination of a witness regarding prior inconsistent statements does not require disclosure in advance of examination, and such would not be considered of assistance in seeking the truth of a matter. Judicial statements on the essential character of cross-examination in seeking truth within a fair trial process have been cited, and the significant use of such materials at trial has been referenced." (Para 36)

"In my opinion, the Crown arguments do not address adequately the effect of disclosure to the complainant that may allow the complainant to prepare for trial ready to explain and possibly modify their evidence. Such modification of testimony is possible and that concern is reflected by the long-standing practice to exclude witnesses from a trial until after their evidence is given, and this is done in all trials to minimize the possibility of improper modification of testimony. The evidence of a complainant is almost always crucial and central in any trial relating to sexual assault. Mandatory disclosure to the prime witness in a prosecution reaches to the center and integrity of the trial process in such cases. The importance of cross-examination has been judicially recognized, though it is always subject to limitations either in the discretion of a trial judge or by legislation to minimize harm to a witness or the trial process itself, and to promote social policies." (Para 38)

"I conclude for reasons and authorities that are referenced above, that the combined effect of sections 278.92(1), 278.92(2) (b) and 278.94(2) is to seriously limit an accused person's ability to effectively challenge the veracity of a complainant in cases where the accused is in possession of potentially significant material that would be utilized in cross-examination to counter evidence already given in court. This constitutes a serious infringement of an accused person's ability to challenge a complainant in seeking truth in a trial. As a result, the Applicant's right to a full answer and defence and to a fair trial that are guaranteed under sections 7 and 11(d) of the Charter is infringed." (Para 40)

"I must now determine whether I should rule the legislation relating to records in possession of an accused person that requires notice and permits participation by a complainant in the hearing process, must be declared invalid and inoperative in accordance with Lloyd.  I must also consider section 1 of the Charter and apply the considerations and principles set out in  Oakes to determine if the legislation in question that breaches section 7 and 11 Charter rights may nonetheless be upheld under section 1of the Charter. The Oakes principles are summarized again as follows:

• The legislative objective or objectives must be pressing and substantial;

• The impugned law must be rationally connected to its objective;

• The impugned law must impair the right or freedom in question as minimally as possible; and

• The deleterious effects of the impugned law must not outweigh its salutary benefits." (Para 41)

"I conclude that these breaches of Charter rights are not permissible or justified under section 1 of the Charter for the following reasons:

a.                  The legislative objectives of the challenged Criminal Code sections are important and well-recognized as being of extraordinarily high value, and are intended to protect complainants in sexual assault prosecutions in the ways that are set out in above;

b.                  However, the provisions are an extension of already existing substantial protections that have been in effect for some time, and though it is argued they should be allowed to add to those protections, they do so with significant limitations to the right of full answer and defence for an accused person in a trial. This is also an important Charter right, and was a long-established  principle before enactment of the Charter.

c.                  This impairment is significant and goes to the center of the trial process which is a search for truth and justice for all parties. The current trial process for sexual assaults has significant and powerful legislated provisions and protections currently to achieve the objectives that shield a complainant in a sexual assault trial from unwarranted intrusions into privacy, sexual history and to dispel improper stereotypes, and thus promote overall the reporting and prosecution of sexual complaints.

d.                  Given these conclusions, I find that deleterious effects of the challenged legislation outweigh the benefits, which are incremental and are not the whole of the provisions that have the objective of protecting complainants in sexual assault proceedings and encouraging a fair hearing for a complainant. This is essential and unchallengeable social policy. However, the right to a fair trial in a free and democratic society is also a consideration of the highest order that need not be diminished in promoting the other high objectives in sexual assault prosecutions." (Para 42)

"In conclusion I would note that the trial process is a flexible and nuanced process, and case law has illustrated, in my opinion, that courts have the means of protecting a complainant and maintaining the objectives in contemporary sexual assault provisions in the Criminal Code without adding a further provision that could fundamentally impair the right to full answer and defence of an accused person in a sexual assault trial. I conclude and rule that the challenged provisions must be declared invalid and not applied in this trial proceeding." (Para 43)

R v Mohamed Aden (ONSC)

[Aug 20/19] – Charter s.9 - Arbitrary Detention of Person with a Subject of a Search Warrant  – 2019 ONSC 4890 [Forestell J.]

AUTHOR’S NOTE: Video evidence of a bystander showed that the police were fabricating some of the evidence in respect of the detention of the accused in this case, but police maintained that they could arrest someone with the subject of a search warrant in law.  They were wrong.

Pertinent Facts

[1]               "Mohamed Aden is charged with possession of a loaded restricted firearm and carrying a concealed weapon contrary to sections 95(1) and 90(1) of the Criminal Code,R.S.C., 1985, c. C-46. He pleaded not guilty to both charges."

[2]               "The charges against Mr. Aden arise from his arrest on June 21, 2017 when he was in the company of man who was the target of a police investigation (“the target”). On that date, police had the target under surveillance because the police intended to execute a search warrant at the target’s residence. They intended to arrest the target and to detain anyone who was with the target until after the execution of the warrant. Mr. Aden was observed in the company of the target and several other young men outside a McDonalds restaurant. One officer observed Mr. Aden repeatedly touch his waistband and the front of his hoodie when he was outside McDonalds. This caused the officer to believe that Mr. Aden possessed a firearm. The officer communicated his observations to the other members of the team. The target left the McDonalds with Mr. Aden and another man. The detective in charge of the operation instructed the team of police officers to arrest the target and to detain the other men with the target. The grounds for the detention were articulated by the detective to be to prevent interference with the execution of the search warrant and to ensure officer and public safety."

[3]               "When the ‘takedown’ was called by the detective, one of the officers, ran towards Mr. Aden and told him to get on the ground. According to that officer, Mr. Aden then turned and his hand moved towards his waistband. Mr. Aden was physically taken to the ground and arrested. A firearm and magazine were found near Mr. Aden following his arrest. Other officers testified that Mr. Aden ran and then was tackled."

[4]               "Two officers testified that they saw Mr. Aden throw the gun away. Mr. Aden testified that he did not possess or throw away a gun. He testified that he was tackled and taken to the ground by the police and that he was then struck multiple times after he had been handcuffed. Mr. Aden testified that one officer remained on top of him after he was on the ground and handcuffed. An independent witness, Anthony Cristobal, testified that he saw the police kick Mr. Aden on the ground after he had been handcuffed. Mr. Cristobal also observed an officer to kick a gun towards Mr. Aden while he was on the ground. Mr. Cristobal video-recorded part of the interaction between Mr. Aden and the police."

[100]      "On June 21, 2017, Anthony Cristobal was in his car in the parking lot of the plaza where the arrest of Mr. Aden occurred."

[101]      "Mr. Cristobal video-recorded portions of the arrest on his phone."

[110]      "The two videos taken by recorded by Mr. Cristobal are very brief. The first is about 8 seconds and the second is about 10 seconds. The first video shows DC Haines winding up as if to kick a soccer ball and then following through and kicking the person on the ground who we know to be Mr. Aden. Det. Balint is visible standing behind and to the right of DC Haines. He appears to be on his phone but also appears to look towards DC Haines as he kicks."

[113]     "I find that DC Haines deliberately lied about his application of force to Mr. Aden. He denied applying any force to Mr. Aden and denied having any involvement in the arrest because Mr. Aden was under control. He testified that he focused his attention on the gun. Once he was confronted with the video of him kicking Mr. Aden, he testified under cross-examination that he had no recollection of doing so. In re-examination he testified that Mr. Aden must not have been under control and that a kick was required to control him."

[114]      "I reject the explanation that DC Haines gave for his testimony in-chief after he viewed the video. In his evidence-in-chief DC Haines did not describe any difficulty in recalling the events and his actions. He was clear in his initial evidence that he stood near the gun and focused his attention on it during the time that other officers were with Mr. Aden. He was clear that he did so because Mr. Aden was under control."

[126]     "I find that DC Haines, as described by Mr. Cristobal, kicked Mr. Aden 3-4 times after Mr. Aden was handcuffed and while he was face down on the ground with three police officers on or around him."

[127]      "Mr. Cristobal’s evidence was credible and reliable. The video evidence shows one kick. I rely on Mr. Cristobal’s evidence and the evidence of Mr. Aden that he felt several forceful blows after he was handcuffed. I find that kicks were delivered after Mr. Aden was handcuffed and under control."

[132]      "I accept the evidence of Mr. Cristobal that DC Haines kicked the gun towards Mr. Aden after Mr. Aden was subdued and handcuffed and after DC Haines kicked Mr. Aden. I reject DC Haines’ evidence on this point. DC Haines is simply not credible. His evidence concerning his actions and his observations of the gun are not credible. He claimed to have focused his attention on the gun and to have not participated in the arrest. That was clearly not true."

[133]      "I reject the evidence of DC Haines that he saw Mr. Aden take the gun out of his pants and throw it over his head to hit the stop sign. DC Haines is not a credible or reliable witness."

[139]      "All of the police witnesses endorsed the view that persons in the company of a target of a search warrant could be detained, searched and held until after the search warrant was executed. They testified this was to ensure the safety of the officers arresting the target and to prevent the destruction of evidence."

[140]      "DC Miller believed that he had grounds to arrest Mr. Aden because of Mr. Aden adjusting his clothing at McDonald’s."

[141]      "Det. Balint, who ordered the takedown, did not believe that the clothing adjustment provided grounds for arrest or detention. Det. Balint ordered the arrest of the target and the detention of the other two men to ensure officer safety."

[144]      "DC Pitre, when he ordered Mr. Aden to get to the ground, was doing so on the basis that Mr. Aden could be detained to facilitate the execution of the search warrant. After Mr. Aden turned his body, DC Pitre believed Mr. Aden had a gun. Although DC Pitre did not specifically articulate his grounds for tackling Mr.  Aden to the ground after he saw Mr. Aden turn his body, it is implicit in his testimony that DC Pitre believed at that point that he had grounds to arrest or investigatively detain Mr. Aden for possession of a firearm."

Section 9 Arbitrary Detention

[145]      "In R. v. Mann, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59, the Supreme Court of Canada articulated the test to be applied in determining whether a brief investigative detention by the police is lawful. At para. 34 of the judgment, Iacobucci J. wrote:

The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test."

[147]     " The Crown conceded that the police did not have grounds to detain Mr. Aden on the basis of his presence accompanying a target of a search warrant. That is clearly the case. It is troubling that every police officer involved in this case appeared to believe that it was lawful to detain and search a person simply because that person was with a target whose residence was about to be searched."

[148]      "Mr. Aden’s movements at McDonald’s as observed and described by DC Miller did not, in themselves, provide grounds for arrest. Det. Balint, who was the officer in charge of calling the takedown, testified that such movements were ambiguous and would not provide grounds for arrest or detention without more."

[149]      "The Crown argues, however, that the movements observed and described by DC Miller, in combination with the movements described by DC Pitre of Mr. Aden turning and ‘blading’ when DC Pitre told him to get on the ground, provided grounds to arrest Mr. Aden or at least to investigatively detain him. The Crown argued that Mr. Aden was not detained until he was physically held by DC Pitre because he fled and failed to submit to the direction of DC Pitre to get on the ground."

[150]      "To decide whether the detention was arbitrary, I must determine when Mr. Aden was detained. In R. v. Grant 2009 SCC 32 (CanLII), [2009] 2 S.C.R. 353 and more recently in R. v. Le 2019 SCC 34 (CanLII), the Supreme Court of Canada explained the approach to resolving the question of the timing of a detention. In Grant, at para. 31 the Court provided three non-exhaustive factors:

(a)         The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.

(b)         The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c)          The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication."

[151]      "I find that Mr. Aden was clearly detained before he turned his body. He was detained at the point that DC Pitre told him to get on the ground. At that point DC Pitre was advancing on him from one direction and DC Miller from the other. He had been told to get on the ground. He was not free to move. I accept Mr. Aden’s evidence that he did not flee. I find that at the point that DC Pitre ordered him to the ground the police had no grounds to detain him. The only stated basis for the detention was because he was with the target of the search warrant and he had suspiciously adjusted his clothing. His detention was arbitrary."


[8]               "For the reasons that follow, I have concluded the following:

1.                  I find that the detention of Mr. Aden was arbitrary. Det. Balint, who ordered the detention of Mr. Aden did so on the grounds that Mr. Aden was with a target of a search warrant and to prevent interference with the warrant. DC Pitre, who ordered Mr. Aden to the ground, did so for that reason. I find that Mr. Aden’s detention crystallized at the point that he was ordered to the ground while surrounded by police. The only grounds were that he was with a suspect and he had suspiciously adjusted his clothing. The police did not have grounds for arrest or detention. I would exclude the evidence of the gun and magazine. The police witnesses articulated a standard or routine practice of arresting targets outside their residences and detaining anyone with the targets until after the execution of a warrant. This evidence demonstrates a systemic problem with the training of police and their understanding of the grounds for detention of individuals. The violation is extremely serious.

2.                  Even if I had not excluded the gun and magazine as a result of the violation of Mr. Aden’s s. 9 rights, I would have found that the Crown did not prove beyond a reasonable doubt that Mr. Aden was in possession of the gun and magazine found on the ground following his arrest. Two other people were arrested at the same time as Mr. Aden and near him. Considering the serious problems with the credibility and reliability of the evidence of the officers involved in the arrest of Mr. Aden, I cannot be satisfied that the officers saw Mr. Aden remove and throw the gun. Mr. Aden denied possessing the gun and his evidence is credible. It is supported in material respects by the evidence of the videos taken by the independent witness and the testimony of the independent witness. Mr. Aden’s denial, considered in light of all of the evidence, raises a reasonable doubt."

Charter s.24(2) Analysis

[155]      "The Charter-infringing state conduct was extremely serious and impacted significantly on the liberty interest of Mr. Aden. The police all expressed the view that the imminent execution of a search warrant justified the detention of anyone with the target of the search warrant and that this was a routine procedure. This demonstrates a serious systemic problem in the training of the police. As the Supreme Court explained in Le, “the reputation of the administration of justice requires that courts should dissociate themselves from evidence obtained as a result of police negligence in meeting Charter standards.”

[156]      "The impact on Mr. Aden’s Charter-protected interests was also serious. There was actual physical constraint of Mr. Aden and the application of significant force."

[158]      "In this case, I reach the conclusion that, given the conduct of the police, the Charter-infringing conduct is so serious and the impact on the Charter interests of the accused so substantial that the evidence of the gun and magazine must be excluded."

[163]      "I find Mr. Aden not guilty of both charges."