This week’s top three summaries: R v  Zacharias, 2023 SCC 30: s.8 non-warrant #excision, R v Haidary, 2023 ONCA 786: #tailoring evidence, and R v SB, 2023 ONCA 784: s.271 capacity to consent.

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R v Zacharias, 2023 SCC 30

[December 1, 2023] S.8 Charter - Excision of Unlawfully Obtained Evidence from Reasonable Grounds, Charter s.24(2): Focus on Initial Breach [Minimum Reasons on Excision: Rowe and O'Bonsawin JJ., Minimum Reasons on 24(2): Côté J., Overall Dissent: Martin and Kasirer JJ.]

AUTHOR’S NOTE: This case gives and takes from the Defence in significant ways. On the positive end, the minimum reasons of Rowe and O'Bonsawin JJ as supported by Martin and Kasirer explicitly overturn a precent (R. v. Love, 2022 ABCA 269) that undermined the protection of Charter rights and uphold that police cannot benefit from their own violations of Charter rights to give them reasonable grounds (for arrest or search). Simply put, evidence or information obtained by prior violations of Charter rights must be excised from an officer's grounds for an arrest or search in the same way excision works in search warrant cases. If the remaining information does not objectively substantiate grounds, then the standard is not met and you have either a s.9 or s.8 violation as the case may be. 

On the negative side, the reasons of Côté J. forming the 3-2 majority to dismiss the appeal on 24(2) technically mean that Courts should now not look at subsequent consequential breaches that result from the determination than an early step by police was unlawful unless there is an independent violation. For example: an unlawful warrantless arrest results in a person being subjected to lengthy detention at a police station and a proper police interview during which the person confesses to the offence for which police had no reasonable grounds to arrest. On the logic deployed by Côté this would not be considered a problem from the statement end - it would not change the 24(2) picture at all. So if the arrest does not result in 24(2) exclusion on its own, the lengthy subsequent detention and confession would arguably not aggravate the seriousness or impact of the violation under 24(2). The criticism of this proposition is well articulated in the dissent of Martin and Kasirer JJ, and as articulated by them, it is in significant conflict with all SCC 24(2) precedent. Despite being technically binding, it is unlikely to be followed. 


I. Overview

[1] The appellant, George Zacharias, was pulled over on the highway for a traffic stop. After a sniffer dog gave a positive indication for drugs in the appellant’s vehicle, police searched the vehicle and seized over 100 pounds of marijuana. The appellant was convicted of possession of marijuana for the purpose of trafficking. The trial judge found that the police had breached the appellant’s rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms in conducting a sniffer search and investigative detention. This appeal is about the lawfulness of the state actions which followed those initial Charter breaches and whether the various breaches warrant exclusion of the evidence under s. 24(2).

[2] In our view, the arrests that followed the sniffer search in this case were also in violation of the Charter. The state cannot rely on unlawfully obtained evidence to satisfy the reasonable and probable grounds requirement for arrest. Where the court finds a breach of the Charter has occurred, the breach must be considered in the s. 24(2) analysis. However, absent additional or independent state misconduct, a breach that is entirely consequential on an initial violation is unlikely to significantly increase the overall seriousness of the Charter-infringing state conduct under the s. 24(2) analysis. Rather, a consequential breach will be most relevant to the impact on the Charter protected interests of the accused.

[3] For the reasons that follow, while we accept that the arrests and searches incident to arrest in this case constituted additional violations of the Charter, we would affirm the decision not to exclude the evidence under s. 24(2) of the Charter. Accordingly, the appeal is dismissed.

II. Facts

[4] On February 17, 2017, the appellant was pulled over on Highway 1 near Banff by Constable MacPhail of the Royal Canadian Mounted Police (“RCMP”). The stop was a traffic stop initiated as a result of a burnt-out light and illegally tinted windows on the appellant’s truck. After pulling over the appellant, Constable MacPhail made several observations that resulted in him placing the appellant under investigative detention and calling for a sniffer dog to scan for drugs.

[5] During the initial stop, Constable MacPhail asked the appellant questions about where he was travelling and why. When he requested the appellant’s driver’s licence and registration, the appellant responded that his wallet had been stolen and offered his passport instead. Constable MacPhail described the appellant as “extremely nervous” and noted that his hands were shaking. This nervousness diminished over time. He also observed a large amount of luggage in the truck and a commercial grade tonneau cover concealing the contents of the truck box.

[6] When Constable MacPhail ran the appellant’s name and identification through the police database, he discovered an entry from 2014 related to drugs. The file was locked down and he had to call the Real Time Information Centre for further information. The Information Centre informed Constable MacPhail that the appellant was the subject of “a complaint of unknown reliability but was said to be an individual tied to the distribution of large quantities of marihuana and cocaine” (A.R., vol. I, at p. 14).

[7] According to Constable MacPhail, the information from the Real Time Information Centre confirmed his suspicions that the appellant was transporting drugs. In addition to the 2014 entry on his record, he made the following observations and inferences: (i) Highway 1, the route the appellant was travelling, was a known drug corridor and Calgary a known destination for drugs; (ii) the appellant’s story of visiting his sister for “a couple of days” was inconsistent with the large amount of luggage; (iii) it was suspicious that the luggage was in the cab of the truck rather than the box; (iv) the type of tonneau cover on the truck bed was often used by drug couriers; (v) “Back the Blue” stickers like the one the appellant had on his window were often used to avoid being pulled over; (vi) the appellant’s claim that his son had purchased the truck with the decal on it was inconsistent with the fact that the truck was registered in the appellant’s name; and (vii) the appellant was extremely nervous, albeit less so over time.

[8] Constable MacPhail placed the appellant under investigative detention and called for a sniffer dog. The appellant declined the opportunity to speak to counsel....

.... After around 20 minutes, the sniffer dog arrived with its handler and signalled that drugs were present. Constable MacPhail concluded that he had reasonable and probable grounds to arrest the appellant for possession of a controlled substance and did so.

[9] Upon placing the appellant under arrest, Constable MacPhail conducted a search of the appellant’s truck, including of duffel bags located in the truck box. He discovered 101.5 pounds of cannabis, some cannabis pastries or edibles, a jar with a substance he took to be cannabis, and $12,600 in cash. Constable MacPhail re-arrested the appellant for possession for the purpose of trafficking. The appellant was then removed from the first police car, handcuffed, and driven to the Banff police detachment in a second police vehicle. At the detachment, the appellant was required to strip to one layer of clothing and remove his shoes. He was arrested for a third time for possession of proceeds of crime over $5,000. He was released from police custody at 1:37 a.m., approximately six hours after arriving to the detachment and seven hours after being pulled over.

A. Alberta Court of King’s Bench

[11] The trial judge identified the primary issue before her to be whether Constable MacPhail had reasonable suspicion to enter into an investigative detention and deploy a sniffer dog. She concluded he did not, as the only objective element for suspicion was a police database entry from 2014 which was unconfirmed and of unknown reliability. As a result, the trial judge found that the police had breached the appellant’s ss. 8 and 9 Charter rights by virtue of the sniffer dog search and investigative detention.

[12] However, the trial judge went on to conclude that the evidence should not be excluded under s. 24(2). First, with respect to the seriousness of the state conduct, there was no evidence of a deliberate or systemic breach of the Charter. Constable MacPhail’s failure to meet the reasonable suspicion standard was “miniscule” and not the result of negligence....

V. Analysis

B. Arrests Made as a Consequence of a Charter Breach

[26] This appeal raises the question of whether the police breached the appellant’s Charter rights by arresting him based on the results of an unlawful search. Lower courts across the country have reached divergent conclusions on the question of whether such arrests are lawful. As we will explain, a principled approach to the Charter mandates that police cannot rely on unlawfully obtained evidence in order to conduct a warrantless arrest. Where the grounds for arrest are based on evidence that is subsequently found to have been unlawfully obtained, the court must excise this evidence from the factual matrix in order to determine whether the police had reasonable and probable grounds for arrest.

[27] In R. v. Storrey, [1990] 1 S.C.R. 241, this Court explained that in order to safeguard the liberty of Canadians, the Criminal Code, R.S.C. 1985, c. C-46, sets out strict standards for when police may exercise powers of arrest. In order to obtain a warrant for arrest, the police must demonstrate that they have reasonable and probable grounds to believe that the person they are seeking to arrest has committed an offence. Section 507 of the Code provides for a review mechanism whereby a justice, upon receipt of an information, determines whether the requisite grounds for arrest have been made out.

[28] The same standard of reasonable and probable grounds applies where the police arrest an individual without a warrant (Storrey, at p. 249). Section 495(1)(a) of the Code grants police the power to arrest individuals without judicial authorization if, on reasonable grounds, the police believe the person has committed or is about to commit an indictable offence. The test for whether the police were acting within their authority to conduct a warrantless arrest has both a subjective and an objective component (pp. 250-51). Subjectively, the arresting officer must honestly believe that the suspect committed the offence in question. In addition, those subjective grounds must be justifiable from an objective point of view. In evaluating whether the officer had reasonable and probable grounds for arrest, the court must conduct the analysis from the perspective of a reasonable person standing in the shoes of the arresting officer (R. v. Beaver, 2022 SCC 54, at para. 72).

[29] In considering whether the police had reasonable and probable grounds to arrest the appellant in this case, Khullar J.A. concluded that “reasonable and probable ground[s] cannot be supplied by the results of an unlawful sniffer dog search” (para. 54). We agree.

[30] The conclusion that reasonable grounds for lawful arrest cannot be supplied by actions that involved violations of the Charter accords with principle and policy. Indeed, this conclusion is a logical extension of the applicable principles in other contexts where an initial Charter breach forms the basis for subsequent state action. An unlawful search, for example, cannot furnish the requisite grounds for a search warrant (R. v. Feeney, [1997] 2 S.C.R. 13, at para. 59). Similarly, a lawful arrest is a pre-requisite for any search conducted incident to it (R. v. Stillman, [1997] 1 S.C.R. 607, at para. 27; R. v. Caslake, [1998] 1 S.C.R. 51, at paras. 13-14; R. v. Tim, 2022 SCC 12, at paras. 49-50).

[31] This Court in R. v. Grant, [1993] 3 S.C.R. 223, explained the rationale that animates this rule in the search warrant context: in excluding justification for state conduct that is itself unconstitutional, “the state is prevented from benefiting from the illegal acts of police officers” (p. 251). In the same vein, a search incident to arrest is invalid if the arrest was not lawful because “the legality of the search is derived from the legality of arrest [and] if the arrest is later found to be invalid, the search will be also” (Caslake, at para. 13).

[32] The need to ensure that the state cannot rely on conduct that violates the Charter applies regardless of whether the police are knowingly in breach of the law. The policy rationale is two-fold. [Emphasis by PJM]

[33] First, respect for the Charter and robust protection of civil liberties mandates that the state not be permitted to minimize the impact of earlier unconstitutional actions that lead to a cascading series of well-meaning investigative steps. To allow the police to rely on their misconduct in such a way would fail to give meaningful effect to rights protected under the Charter. [Emphasis by PJM]

[34] Furthermore, allowing the state to rely on Charter violations “through the back door” could incentivize police to be less careful in adherence to the law....

[35] This conclusion is also supported by the preponderance of the jurisprudence. In R. v. Monney (1997), 153 D.L.R. (4th) 617 (Ont. C.A.), rev’d on other grounds [1999] 1 S.C.R. 652, the Court of Appeal for Ontario analogized the warrantless arrest context to search warrants. Rosenberg J.A., writing for the majority of the court, concluded that, similarly, when considering the validity of a warrantless arrest, “facts obtained as a result of a breach of the Charter . . . are excised from the [grounds for arrest]. The court must then determine whether the [arrest would have been valid] without the improperly obtained facts” (para. 98).

[36] In R. v. MacEachern, 2007 NSCA 69, 255 N.S.R. (2d) 180, the Nova Scotia Court of Appeal accepted the Crown’s concession that the arrest in question was unlawful in light of it being based on an earlier breach of s. 10(b) of the Charter. In that case, a sniffer dog detected drugs in the appellant’s backpack. The police detained and questioned the appellant without informing him of his right to counsel. In response to his answers to police, the appellant was arrested for possession. The Crown conceded in its factum on appeal that without the appellant’s responses to the police, the officer did not have a subjective belief that the appellant was illegally in possession of drugs and had thereby committed an offence. The court agreed with the Crown that as a result, the arrest was unlawful.

[38] Similarly, in R. v. Pelucco, 2015 BCCA 370, 327 C.C.C. (3d) 151, the majority of the British Columbia Court of Appeal agreed with the trial judge that the arrest at issue was unlawful, given that it was based on evidence that had been discovered unlawfully. In that case, unbeknownst to the appellant, the police had seized the cellphone of the person to whom he was arranging to sell cocaine. When the appellant arrived to complete the sale, he was arrested and drugs were found in his truck as well as, following execution of a search warrant, his home. The trial judge concluded that the search and seizure of the original buyer’s cellphone was unlawful, as was the search of the appellant’s vehicle and backpack. Therefore, the arrest, which was “based on” evidence uncovered from these unlawful searches, was also unlawful (para. 23). The Court of Appeal agreed (para. 72).

[39] Finally, we note that this Court has endorsed similar reasoning. In R. v. Chaisson, 2006 SCC 11, [2006] 1 S.C.R. 415, a police officer became suspicious when he noticed the appellant and a passenger sitting in a dark car behind a closed service station. When he approached the vehicle, he saw the occupants react with shock and thought he saw the appellant throw something to the other side of the car. He ordered the occupants to exit the vehicle, detaining them, and arrested the appellant after seeing a bag of marijuana in the car. The trial judge concluded that the appellant’s rights under ss. 8, 9 and 10(b) of the Charter had been violated: “. . . ‘but for the [arbitrary] detention the marijuana [found by the police officer] on the floor [of the appellant’s automobile] would not have been discovered and but for the marijuana on the floor being discovered, there would have been no right to arrest these men’” (para. 4). This Court held that the trial judge was entitled to conclude on the facts as stated that the appellant’s ss. 8, 9 and 10(b) rights had been violated (para. 7).

[40] While some courts have reached the opposite conclusion on this question, we do not find their reasoning persuasive. The intervener the Attorney General of Alberta points to the recent decision of R. v. Love, 2022 ABCA 269, [2023] 1 W.W.R. 296, in which the Alberta Court of Appeal declined to apply the automatic excision rule to grounds for arrest premised on unlawful searches.... [Emphasis by PJM]

[41] The rule that reasonable and probable grounds for arrest cannot be supplied by the results of unconstitutional state conduct does not conflict with the test set out in Storrey. As set out above, the Storrey test requires that the police have a subjective belief, that is also objectively reasonable, that the arrestee has committed an offence. The onus is on the state to establish that these grounds exist (Storrey, p. 250). In order to ensure that the state is not able to rely on violations of the Charter, the reviewing judge must excise evidence that has been unconstitutionally obtained at the outset of this inquiry. Once this evidence has been removed from the factual matrix, the court applies the Storrey test to determine whether reasonable and probable grounds exist, having regard to both the subjective and objective components. In this inquiry, the court considers the totality of the circumstances known to the officer at the time of the arrest, but does not include evidence found to have been unconstitutionally obtained.

[42]....the purpose of preventing police from being able to rely on unlawful conduct is not to prevent them from acting in the dynamics of the moment. The same constraint that should guide police in their interactions with individuals continues to apply: such actions must comply with the Charter....

.... Rather, police have been and continue to be required to consider whether they are acting within constitutional limits when they act. In short, the police need to respond to exigencies, but in doing so must be mindful of the authority that the law confers and also the constraints that the law imposes.

[43] Canadians have a legitimate expectation that the police will know and comply with the law, especially the Charter (Tim, at para. 30; Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335, at para. 6; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 67). This applies no less in dynamic situations. As this Court highlighted in Storrey, “[i]n the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest” (p. 249 (emphasis added); see also S. Coughlan and G. Luther, Detention and Arrest (2nd ed. 2017), at p. 91). This rule is also consistent with the principles that apply in the search warrant and search incident to arrest contexts. [Emphasis by PJM]

[44] Before turning to how breaches of the Charter resulting from earlier breaches are to be factored into the s. 24(2) analysis, we pause to note the important difference between excision and exclusion. Where grounds for arrest are based on unconstitutionally obtained evidence, that evidence is to be excised from the factual matrix....

....For example, if police arrest an individual after conducting an unlawful search, but the evidence uncovered from the search is only one contributing factor to the decision to arrest, the arrest will still be lawful if the balance of the evidence suffices to establish reasonable and probable grounds.

C. An Unlawful Arrest as a “Consequential” Breach in the Section 24(2) Analysis

[47] Where an arrest is unlawful because it is premised on the results of a Charter breach, it is the initial Charter breach that renders what follows unlawful. In other words, there is a situation of linked or “cascading” Charter breaches (see Blanchard, at para. 34). We use the term “consequential” to refer to such breaches in the s. 24(2) analysis because the subsequent arrest is unlawful only as a consequence of the “initial” breach or breaches that preceded it.

[48] Importantly, an arrest that can be viewed only as a consequential breach is distinct from state action that is characterized by additional or independent misconduct, including conduct that can be considered an “independent” breach of the Charter (such as failing to give an arbitrarily detained accused their right to counsel upon arrest). In those circumstances, the subsequent state action is of a different character and will be factored into the s. 24(2) analysis differently.

[49] ..... Some factual scenarios will raise the issue of cumulative breaches, which may evidence a pattern of misconduct, rather than consequential ones alone, which will likely not....

(1) The Section 24(2) Grant Analysis

(a) The Seriousness of the Charter-Infringing State Conduct

[52] An unlawful arrest that is a consequential breach must be factored into the first and second stages of the s. 24(2) analysis, but is unlikely to significantly impact the overall seriousness of the Charter-infringing state conduct. In the absence of additional state misconduct, the focal point for evaluating seriousness is likely to remain the initial breach: in this case, the preceding unlawful search. Where, as in this case, the police conduct is only off the mark to a “miniscule” degree, the seriousness of the initial breach will tend to be on the lower end of the scale. However, in other cases, the initial misconduct may be characterized as more serious; for example, if the police conduct was still inadvertent but further off the mark. In the latter case, while the consequential arrest would still be unlikely to significantly increase the overall seriousness of the misconduct, the seriousness would already be more severe given the focus on the initial breach.

[53] This is consistent with the approach followed in other cases. For example, where a search incident to arrest has been found unlawful only by virtue of the unlawfulness of the preceding arrest and the arrest evidences no other misconduct, greater emphasis is likely to be placed on the arrest itself rather than the “unremarkable” or “normal consequences of the arrest” that follow (see R. v. Loewen, 2018 SKCA 69, [2018] 12 W.W.R. 280, at paras. 77-78; see also Tim, at paras. 49-50 and 84-87)....

[54] At the same time, we do not rule out the possibility that where the initial breach involves deliberate, intentional, or flagrant state misconduct, subsequent actions taken as a consequence of that initial breach may increase the overall seriousness of the Charter-infringing state conduct. The s. 24(2) analysis, of course, will depend on the facts of the case, and all cases will require “an evaluation of the seriousness of the state conduct that led to the breach” (Grant 2009, at para. 73). But where the police honestly believe that they have not committed any initial breach, actions taken on the basis of that initial breach are, to their mind, lawful, and do not demonstrate any heightened disregard for Charter rights or the law. In such a case, the subsequent state action or consequential breach is not deliberate, and therefore should be situated on the less serious end of the scale of culpability (see Tim, at para. 82).

(b) The Impact on the Charter-Protected Interests of the Accused

[55] The impact on the Charter-protected interests of the accused is distinct from the seriousness of the Charter-infringing conduct. As this Court stated in Grant 2009, in order to assess this factor, the court must “look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests” (para. 77).

[56] When additional rights and breaches of those rights are factored into the s. 24(2) analysis, there will necessarily be a more significant impact on the accused that is therefore relevant to the analysis of the second Grant factor. Consideration of all breaches as found is necessary to get an “accurate picture of the effects of the breaches” (C.A. reasons, at para. 51). Section 24(2) of the Charter requires “regard to all the circumstances”....

[57] ....where a court finds that an arrest is made in breach of the Charter, it will be necessary to consider such a breach in the s. 24(2) analysis, including the impacts on the accused’s Charter-protected interests (see R. v. Reilly, 2021 SCC 38, at para. 3; see also R. v. AuYeung, 2010 ONSC 2292, 209 C.R.R. (2d) 140, at paras. 41, 50 and 59). This will be the case whether or not the unlawful arrest can be considered to be a “consequential” breach.

(c) Society’s Interest in an Adjudication on the Merits

[58] ....In our view, and in the absence of arguments on this point, consideration of conduct like the additional breaches in this case would not change the analysis for the third Grant factor.

(2) Summary

[59] ....It will not be necessary or useful in every case to determine whether the sequence of state conduct presents a “consequential” breach. But this operates as guidance for cases where an arrest follows as a consequence of a search, and both are viewed as unlawful on judicial review. In these cases, the court must assess the seriousness of both the search and the arrest....

VI. Application

[60] Having set out the relevant principles, we now apply those principles in the circumstances of this case.

(1) The Additional Charter Breaches

[61] Turning first to the violation stage, it is useful to recall the three arrests that took place in this case: (i) the first arrest for possession, based on the results of the sniffer dog search; (ii) the second arrest for possession for the purpose of trafficking, based on the searches (incident to arrest) of the interior of the vehicle and the duffel bags; and (iii) the third arrest for possession of proceeds of crime, also based on the search incident to arrest of the vehicle and its contents.

[62] Constable MacPhail testified to his grounds for the first arrest on the voir dire: “I was told by [the officer who deployed the sniffer dog] that I could place the accused under arrest for possession of a controlled substance, as his sniffer dog had provided a positive indication and sit confirmation to an odour of a controlled substance inside the vehicle” (A.R., vol. II, at p. 38). In other words, Constable MacPhail’s subjective belief that the appellant was in possession of a controlled substance relied primarily on the results of the sniffer dog search. As the trial judge’s conclusion that this sniffer search was unlawful is not at issue, we conclude that the subsequent arrest for possession was also unlawful. Without the sniffer dog search, the police would not have had reasonable and probable grounds for arrest.

[63] It is settled law that a lawful arrest is a prerequisite to a valid search incident to arrest (Stillman, at para. 27; Caslake, at paras. 13-14; Tim, at paras. 49-50). Therefore, in light of our conclusion that the first arrest was unlawful, we agree with Khullar J.A. that the searches of the cab of the truck, the box of the truck, and the duffel bags inside the vehicle incident to arrest were also unlawful and constituted a further breach of s. 8 of the Charter.

[64] Finally, given our conclusion that an unlawful search cannot provide the requisite grounds for an arrest, the second and third arrests are also unlawful....

(2) The Section 24(2) Grant Analysis

(a) The Seriousness of the Charter-Infringing State Conduct

[66] The trial judge found that Constable MacPhail knew the applicable standard and sought to apply it, and that he was only off the mark to a “miniscule” degree. In her words, there was “no evidence of a deliberate or systemic breach” (A.R., vol. I, at p. 20). Although the trial judge failed to include the investigative detention in her s. 24(2) analysis, her findings on the sniffer search remain relevant, given that both state actions share the requisite standard of “reasonable suspicion”. This finding — that Constable MacPhail was “extremely close” to the standard of reasonable suspicion — reduces the seriousness of both the unlawful sniffer search and the investigative detention, the two Charter breaches she found (see, e.g., R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250).

[67] On appeal, this Court has recognized that additional Charter breaches occurred in the sequence of events: the arrest which followed as a consequence of the sniffer search; the searches that followed incident to arrest; and the additional arrests that followed from those searches. There was nothing to indicate that those breaches were state misconduct, save that they were consequential on the sniffer search being unlawful....

.... The arrests (and searches incident) were not characterized by additional or independent misconduct.

[68] Further, the Charter breaches identified by the trial judge were not found to be intentional; it could not be said the police knew from the outset that they were acting beyond their lawful authority. Importantly, these additional breaches were breaches only because of the officer’s miscalculation in assessing the grounds for suspicion. These additional “consequential” breaches, therefore, do not raise the seriousness of the state conduct in this case; the focal point of this analysis remains the initial breaches that set the sequence of state conduct into motion.

[69] The Charter-infringing state conduct in this case was inadvertent and not wilful; it does not show a pattern or attitude of disregard for the appellant’s Charter rights or the law. Therefore, even considering the additional breaches on appeal, this factor does not strongly favour exclusion.

(b) The Impact on the Charter-Protected Interests of the Accused

[70] First, in terms of the breaches found by the trial judge, the sniffer dog search was of a relatively “brief and non-intrusive” nature (MacKenzie, at para. 133, per LeBel J., dissenting). Where a s. 8 violation has occurred, this inquiry focuses on “the protected interests of privacy, and more broadly, human dignity” (Grant 2009, at para. 78; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 91; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 136). This Court has found that sniff searches are “minimally intrusive” (Chehil, at paras. 1 and 28; MacKenzie, at para. 86). As the trial judge noted, this search of the exterior of the appellant’s motor vehicle occurred on a public highway, which is a relevant factor.

[72] Second, while the additional breaches found on appeal did not heighten the seriousness of the Charter-infringing state conduct under the first Grant factor, they necessarily result in a more significant impact for the second Grant factor, the Charterprotected interests of the accused....

[73] Taken together, the arrests and searches which flowed from those arrests resulted in a more significant impact on the appellant’s privacy, liberty, and dignity. The second Grant factor, therefore, moderately favours exclusion.

(c) Society’s Interest in an Adjudication on the Merits

[74] ....This third Grant factor, therefore, strongly favours admission of the evidence.

[76] As mentioned, the third Grant factor tends strongly in favour of admission of the evidence. The pull of the first two factors in this case is insufficient to outweigh the third; thus, overall the circumstances favour admission. This conclusion is consistent with other decisions of this Court that involved a less serious Charter breach, a significant or moderately intrusive impact, and evidence that was real, reliable, and crucial to the Crown’s case (see, e.g., Grant 2009, at para. 140; Vu, at para. 74). Thus, having balanced the factors, we would affirm the decision to admit the evidence and dismiss the appeal.


[77] ....However, I do not agree with their proposition that the state “cannot rely on unlawfully obtained evidence to satisfy the reasonable and probable grounds requirement for arrest” (para. 2; see also Martin and Kasirer JJ.’s reasons, at para. 107). While this Court has never directly considered the issue, my colleagues’ position is, in my respectful view, difficult to reconcile with both (1) this Court’s longstanding jurisprudence on s. 24(2) of the Canadian Charter of Rights and Freedoms, and (2) the framework for warrantless arrests set out in R. v. Storrey, [1990] 1 S.C.R. 241.

[78] First, a Charter breach that leads to incriminating evidence being uncovered will inevitably result in an arrest or other investigative steps by the police. Absent independent or additional police misconduct, this Court has never treated such arrests or investigative steps as separate Charter breaches in its s. 24(2) analysis.

[80] In this case, my four colleagues’ view of whether Cst. MacPhail had reasonable and probable grounds for arrest is not based on the circumstances known to him at the time of the arrest, which included the sniffer dog’s clear and unequivocal indication of controlled substances in the appellant’s vehicle. Rather, it hinges entirely on a retroactive judicial assessment of the lawfulness of the sniff search. However, the focus of this Court’s s. 24(2) analysis should be — and always has been — on that initial search (and in this case, the accompanying investigative detention while awaiting the arrival of the dog). The presence of additional “breaches” was not argued at trial and has little, if any, impact on Rowe and O’Bonsawin JJ.’s s. 24(2) analysis, with which I am in substantial agreement. I would dismiss the appeal and uphold the appellant’s conviction.

[94] In R. v. Love, 2022 ABCA 269, [2023] 1 W.W.R. 296, the Court of Appeal of Alberta directly considered whether the logic behind the excision of unconstitutionally obtained information, in the search warrant context, should be applied to warrantless arrests. The Court of Appeal concluded that the automatic excision rule, if applied to the context of warrantless arrests, would conflict with Storrey:

Automatic excision, operating after-the-fact, would nullify the subjective focus of the Storrey test by artificially altering the information on which the arresting officer relied at the time. It would distort the objective aspect of the test by shifting the focus away from the factual basis for the officer’s action. It would conflict with the Supreme Court’s direction that an officer exercising a warrantless power “is entitled to disregard only information which he has good reason to believe is unreliable”: Chehil at para 33. [para. 94]

[95] I agree. On my colleagues’ approach, the assessment of an officer’s grounds for arrest would no longer be based on the “circumstances known to the officer at the time of the arrest” (see Tim, at para. 24; Storrey, at pp. 250-51; MacKenzie, at para. 33; Beaver, at paras. 72 and 88; and Golub, p. 750). Rather, their approach hinges entirely on a retroactive judicial assessment of the underlying sniff search.

[96] This Court has made it clear that the reasonable and probable grounds standard relates to the facts, not to the existence in law of the offence in question (see Tim, at para. 28, quoting Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335, at para. 78; Frey v. Fedoruk, [1950] S.C.R. 517, at p. 531). Judicial reflection is not a luxury an officer can afford. It is artificial and inconsistent with the reasonable and probable grounds standard to hold that an arrest made based on clear and reliable evidence of a crime is unlawful. If that evidence is later determined to have been obtained through an unlawful search or detention, that search or detention will be properly evaluated in the s. 24(2) inquiry.

[97] .... Similarly, and with respect, my colleagues’ reliance on searches incident to arrest (see Rowe and O’Bonsawin JJ.’s reasons, at paras. 30-31; Martin and Kasirer JJ.’s reasons, at para. 128) is misplaced. Because the common law power to search incident to arrest is derived solely from the legality of the arrest, “if the arrest is later found to be invalid, the search will be also” (Caslake, at para. 13; see also Golub, at pp. 753-54, per Doherty J.A.). By contrast, the legality of an arrest made based on the results of an unlawful search or detention is not derived solely from the basis for the underlying search or detention. The arrest is based on an additional factor — the discovery of the incriminating evidence itself. Again, if the underlying search or detention is subsequently found to be invalid, that breach will be properly assessed in the s. 24(2) inquiry.

C. Implications for the Exclusion of Evidence Under Section 24(2)

[98] ....With respect, to classify all subsequent police conduct as Charter-infringing merely because it flows from the results of an initial breach comes dangerously close to the “fruit of the poisoned tree” doctrine eschewed by this Court’s s. 24(2) jurisprudence.

[100] Like the breath sample procedure, this Court has characterized sniff searches as a minimally intrusive form of search, and it has assuredly done so with the knowledge that a positive indication from a sniffer dog will lead to an arrest or other investigative steps by the police (see, e.g., Chehil, at para. 55). In their s. 24(2) analysis, my colleagues Martin and Kasirer JJ. do not refer to any of this Court’s jurisprudence on sniff searches or address the relatively minimal impact of this form of search. With respect, their analysis runs contrary to a sound characterization of the Charter-protected interests at stake for an individual subject to a sniff search (see Chehil, para. 19; see also Kang-Brown; A.M.).

[102] Martin and Kasirer JJ.’s emphasis on the seriousness of the Charter-infringing state conduct in this case ignores the fact that all police conduct subsequent to the sniff search was based on an intervening factor — the discovery of incriminating evidence. The question at the first stage of the Grant 2009 analysis may be framed as follows: “Did [the police conduct] involve misconduct from which the court should be concerned to dissociate itself?” (McColman, at para. 57, quoting McLachlin C.J. in Harrison, at para. 22). In my view, an arrest made on the basis of clear and reliable evidence of a crime is not “misconduct” from which the court should be concerned to dissociate itself. The relevant misconduct in this case, from which the Court should be concerned to dissociate itself, is Cst. MacPhail’s initial decision to deploy a sniffer dog without lawful authority to do so.

[103] To hold otherwise artificially distorts the s. 24(2) analysis and, I would respectfully submit, represents a shift towards automatic exclusionary rules that have been rejected in our jurisprudence. At the very least, the issues raised in this appeal merit attention by a full Court in a case where the additional breaches were argued and considered at trial.

III. Disposition

[104] In the result, labelling all police conduct subsequent to the sniff search in this case as unlawful does not change the outcome of Rowe and O’Bonsawin JJ.’s s. 24(2) analysis, with which I substantially agree. The trial judge correctly characterized Cst. MacPhail’s failure to meet the reasonable suspicion standard as “miniscule” (A.R., vol. I, at p. 20)....

.... At the second stage, I agree with my colleagues Rowe and O’Bonsawin JJ. that the impact on the appellant was moderate, bearing in mind the “minimally intrusive” nature of a sniff search and the reduced expectation of privacy in a motor vehicle (see Chehil, at para. 28; MacKenzie, at paras. 31, 86 and 133). The investigative detention was brief, necessary to facilitate deployment of the sniffer dog, and accompanied by the right to counsel. At the third stage, the evidence is both highly reliable and integral to the Crown’s case, which strongly favours admission.

[105] On balance, I would affirm the decision to admit the drug evidence, dismiss the appeal and uphold the appellant’s conviction.


I. Overview

[106] We have had the advantage of reading the reasons of our colleagues Rowe and O’Bonsawin JJ. We agree with much of their reasons but, most respectfully, we disagree in the result. For the reasons that follow, we would allow the appeal, order the exclusion of the evidence, set aside the appellant’s conviction and enter an acquittal.

[107].... Second, we accept the sound proposition that a lawful arrest cannot be based on unlawful grounds, as Khullar J.A. (as she then was), dissenting at the Court of Appeal, would have held (2022 ABCA 112, 44 Alta. L.R. (7th) 5). More specifically, reasonable and probable grounds for arrest cannot be based on unconstitutional police misconduct. Third, we accept that the evidence at issue in this case was “obtained in a manner” that infringed each of the Charter rights that our colleagues recognize as violated, including each of the arrests and searches to which Mr. Zacharias was subject. Thus, like our colleagues and Khullar J.A. below, we conclude that the “threshold requirement” of the s. 24(2) analysis is met (see R. v. Plaha (2004), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 44, per Doherty J.A.). [Emphasis by PJM]

[108] We respectfully disagree, however, with both the courts below and our colleagues on the legal framework that governs how multiple, connected breaches factor into the evaluative stage of the s. 24(2) analysis governed by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353....

.... All state conduct that undermines the rule of law by violating the Charter must be subject to proper judicial scrutiny under all three branches of that test. In our respectful view, our colleagues carry this error forward when they conclude that consequential breaches are unlikely to increase the overall seriousness of Charter-infringing state conduct unless those breaches reflect a “pattern” of misconduct or an “independent” wrong. Less exclusionary weight should not be attached to a breach in respect of any of the branches of the Grant test merely because a court has determined that it was “consequential” to another, earlier breach.

[109] The fact that a consequential or cascading breach may be seen to be caused by an initial breach cannot obviate the need to factor it into the analysis and give full consideration to whether it reflects conduct from which courts must disassociate themselves (Grant, at para. 72). Even when a consequential breach discloses no independent misconduct it is nonetheless a breach of the rights that the Charter protects....

[110] When this principle, which we take to be settled law, is duly recognized, a correct application of the s. 24(2) framework mandated by Grant compels exclusion of the evidence in this case, given the seriousness of the state misconduct that would otherwise be discounted....

[115] However, we respectfully reject the view that consequential breaches of constitutional rights can be characterized as unlikely to significantly affect the overall seriousness of the state misconduct simply because they are “expected” to occur (Rowe and O’Bonsawin JJ.’s reasons, at para. 59). We disagree that under the settled Grant framework, the “focal point” for evaluating seriousness is the initial breach (para. 68)....

(2) Seriousness Is Cumulative

[132] As a number of appellate courts have properly recognized, it is the cumulative seriousness of the Charter-infringing state conduct that factors into the Grant analysis (see, e.g., R. v. Lauriente, 2010 BCCA 72, 251 C.C.C. (3d) 492, at para. 30; R. v. Boudreau-Fontaine, 2010 QCCA 1108, at para. 59 (CanLII); R. v. Poirier, 2016 ONCA 582, 131 O.R. (3d) 433, at para. 91; R. v. Kossick, 2018 SKCA 55, 365 C.C.C. (3d) 186, at paras. 58-59; R. v. Culotta, 2018 ONCA 665, 142 O.R. (3d) 241, at para. 62, aff’d 2018 SCC 57, [2018] 3 S.C.R. 597; R. v. Adler, 2020 ONCA 246, 388 C.C.C. (3d) 114, at para. 39; R. v. White, 2022 NSCA 61, 419 C.C.C. (3d) 123, at para. 61). This approach assesses the entire chain of events relevant to the Charter violations and considers how seriously the state conduct — taken as a whole — undermined the rule of law.

[133] In our view, a cumulative approach is mandated by the emphasis that the Grant analysis gives to the totality of the circumstances....

R v Haidary, 2023 ONCA 786

[November 24, 2023] Accused's Right to Disclosure and to Be Present: Tailoring of Evidence [B.W. Miller J.A., David M. Paciocco J.A., I.V.B. Nordheimer J.A.]

AUTHOR’S NOTE: Every now and then, judges succumb to the lure of an unlawful means to undermine the credibility of an accused. Judges are prohibited from reasoning that because the accused has access to the Crown disclosure or that they have the right to be present in the courtroom for a trial, that they are then tailoring their testimony in court to fit the Crown case. As noted in the case law this weaponises the rights of an accused person against them unfairly. Fundamental constitutional rights cannot be turned into a trap by the courts. This case outlines an example of how this occurs and how it is defended by Crown (the suggestion that the tailoring finding only comes after the judge already found the accused not credible is the favourite).  


[1] Harris Haidary, a security guard at a bar, was charged with sexually assaulting a significantly impaired female patron in an alley behind the bar, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. Mr. Haidary testified at this trial, denying the allegations, and providing an innocent account of his activities.

[2] In rejecting Mr. Haidary’s exculpatory testimony in its entirety, the trial judge relied materially on his finding that Mr. Haidary had tailored his testimony by changing his account after learning of the evidence available against him. It is “legally wrong” for a trial judge to “discount the credibility of the accused on the basis that they have tailored their evidence to the testimony heard in the courtroom”: R. v. Hudson, 2021 ONCA 772, 158 O.R. (3d) 589, at para. 161, citing R. v. G.V., 2020 ONCA 291, 392 C.C.C. (3d) 14; R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230. This is a dangerous form of reasoning that must be avoided by trial judges absent exceptional circumstances, such as alibi defences, even where there may be a logical basis for the finding. This rule operates because “no such inference can be invited or drawn without turning fundamental constitutional rights into a trap and exacting an evidentiary price for their exercise”: Hudson, at para. 161.

[3] Moreover, Mr. Haidary was not given notice that an inference of tailoring could be drawn, leaving him no reason to believe that he should address the issue. This undermined the fairness of the trial.



[7] The trial judge identified a range of problems that he perceived with Mr. Haidary’s testimony. In explaining his rejection of Mr. Haidary’s testimony, the trial judge gave emphasis to what he referred to as “the big evidentiary contradictions” that arose from discrepancies and omissions between a prior statement Mr. Haidary gave to his employer in a text message and the testimony that Mr. Haidary gave after subsequently learning of the evidence available to the Crown. Based on these “big evidentiary contradictions”, the trial judge found that Mr. Haidary’s prior statement was “plainly designed to exculpate him from the alleged assault, but at a time when he could not know what others present … would later testify that would present a different story.” He then found that the “revised story” Mr. Haidary gave in his testimony acknowledging that he had been present with the complainant in the back alley, “was necessary because of [a witness’] evidence” which put him in the back alley with the complainant. In listing his reasons for the complete rejection of Mr. Haidary’s testimony, the trial judge also said, “[m]ost importantly” there was no mention in the text account that Mr. Haidary left the complainant alone in the alley to respond to a fight, a detail provided in his testimony (emphasis added). The trial judge found it to be “obvious” that Mr. Haidary added this detail in his testimony because “[i]t never occurred to him at the time he wrote the [prior statement] that there would be evidence from [a witness] that would definitively place him in the alley with an inebriated [complainant], the key fact that underlies the sexual assault allegations.”

[9] To be clear, no issue can be taken if, in rejecting testimony offered by an accused, a trial judge relies on material discrepancies between that testimony and a prior inconsistent statement made by the accused: R. v. Jorgge, 2013 ONCA 485, 4 C.R. (7th) 170 at para. 13. This, of course, occurs regularly since prior inconsistencies can raise logical concerns about the reliability or credibility of in- court testimony. But when a trial judge goes on to make an affirmative finding based on these inconsistencies that the accused changed their version of events by tailoring their testimony to account for evidence that they subsequently learned about, the trial judge has gone beyond the mere consideration of the impact of prior inconsistencies and has added another important makeweight in favour of rejecting entirely the testimony of the accused. To appreciate the point, consider that testimony often survives prior inconsistencies, whereas a finding that the accused tailored their testimony to the evidence requires the rejection of the “tailored” testimony in its entirety. Moreover, a finding that the accused tailored their evidence is a determination that the accused engaged in post-offence conduct in an effort to avoid conviction. Such a finding creates a risk that, advertently or inadvertently, a finding of tailoring will operate as an indicium of guilt. Adding an inference of tailoring is not a benign addendum to the analysis of prior inconsistencies. It is a finding of importance with potentially devastating consequences for the accused.

[13] Second, the Crown sought to rely on the decision in R. v. Fraser, 2021 BCCA 432, 407 C.C.C. (3d) 307 at paras. 2, 56-63, leave to appeal refused, 2022 CanLII 30686 (S.C.C.) to submit that there is a “possible exception” to the rule against inferences of tailoring that can be applied on a “case-by-case basis” for prior inconsistent statements, and that this case-by-case exception should be applied in this case.

[14] … it is unnecessary to resolve the underlying issue of whether a case-by-case exception operates in Ontario, because even if it does, we would not apply it….

[15] Unlike Fraser, this case contains no features that promote the application of a case-by-case exception. Fraser was the appeal of a second-degree murder conviction. The issue was whether the conviction should be overturned because the Crown made suggestions of tailoring during cross-examination in a case where the trial judge focused in his jury charge on the inconsistencies in Mr. Fraser’s evidence, without featuring the Crown’s tailoring theory. Put simply, the impugned conduct in Fraser created the risk of unfair reasoning which the trial judge’s charge reduced. In contrast in this case the trial judge unequivocally went beyond considering the dampening impact that prior inconsistent statements can have on an assessment of the reliability or credibility of testimony and used the prior inconsistent statements to support tailoring findings, and then employed those findings as an additional and powerful makeweight in his reasoning.

[17] In our view, there are no circumstances comparable to Fraser in this case, or no other compelling bases for applying a case-by-case exception for prior inconsistent statements.

[18] We are therefore persuaded that in the circumstances of this case no exceptions to the rule against inferences of tailoring were operating in this case, and the trial judge erred in drawing the adverse inferences of tailoring that he did.


[19] We also agree with Mr. Haidary’s alternative but related submission that, apart altogether from the breach of the rule against drawing an inference of tailoring that we have found, the trial was rendered unfair when the trial judge drew an adverse inference of tailoring against him without alerting Mr. Haidary in advance that he may do so. In Thain, at para. 29, Sharpe J.A. said:

In my view, the fact that the accused enjoyed his constitutional right to disclosure had no bearing on his credibility in this case and the trial judge erred in law by stating that it did. Even if the disclosure might possibly have had a bearing on credibility, trial fairness demanded that the accused be confronted with the suggestion and afforded the opportunity to refute it or make submissions before being disbelieved on that account.

[20] Similarly, in Fraser at para. 63, Frankel J.A. commented that “it would have been improper for counsel to have argued to the jury that Mr. Fraser had concocted his testimony if she had not raised that subject with him.” In this case, the tailoring issue was not raised with Mr. Haidary.

[21] In coming to his conclusion, we accept the Crown submission that it would have been plain to Mr. Haidary that the Crown position was that his trial testimony was a fabrication. However, at no time was Mr. Haidary made aware that changes that he made to his version of events after learning of the evidence against him were going to be relied upon as proof of that fabrication. Had he been so advised he could have attempted to persuade the trial judge that this inference was inappropriate, either legally or factually. The mere allegation of fabrication was not sufficient notice.

[22] It is understandable why the trial Crown did not raise this issue at trial. Absent an exception, it would have been an error for the trial Crown to have confronted Mr. Haidary with the suggestion in cross-examination that he had tailored his evidence, or to invite the trial judge in submissions to draw this inference: R. v. Schell, (2000) 148 C.C.C. (3d) 219 (Ont. C.A.). Appropriately, the Crown did not do so. However, the trial judge should have done so before drawing an adverse inference. His failure to do so rendered the trial unfair, giving rise to a miscarriage of justice.


[25] The appeal is allowed. Mr. Haidary’s sexual assault conviction is set aside, and a new trial is ordered.

R v SB, 2023 ONCA 784

[November 24, 2023] Sexual Assault: Capacity to Consent [Majority Reasons by van Rensburg J.A. with S.E. Pepall J.A. concurring, Separate reasons by MacPherson J.A.]

AUTHOR’S NOTE: The capacity to consent to sexual intercourse involves a factual finding by the Court, but in order to make that finding a trial judge has to consider all of the evidence. This includes the account of the accused as to the capacity of the complainant. Where the judge does not reject the evidence of the accused on the facts underlying the capacity to consent, they form the totality of the evidence the court has to consider. The majority holds here that the judge cannot simply skip to the honest but mistaken belief in consent arguments after considering the evidence of the complainant. The complainant's evidence about the presence of consent and capacity to consent is only one piece of the evidentiary landscape. 


[1] The appellant, S.B., was convicted of one count of sexual assault contrary to s. 271 of the Criminal Code following a judge alone trial before Boucher J. of the Superior Court of Justice.


(1) The parties and events

[4] On May 18, 2014, the appellant (S.B.) and the complainant (C.F.) engaged in kissing, oral sex and sexual intercourse in the appellant’s car.

[5] The appellant and the complainant knew each other. They grew up on the same street and went to the same school. On the night in question, they met in a local nightclub. The complainant went there with some girl friends. She drank with her friends before going to the nightclub and continued to drink after arriving at the nightclub. The appellant did not drink at the nightclub and offered to be the designated driver for several people in the nightclub.

[6] After the nightclub closed, around 2 a.m., the appellant ended up driving the complainant and several of her friends to their homes. Eventually, only the appellant and the complainant were still in the car. They parked briefly just outside the complainant’s home where some kissing took place. They then drove to a nearby school parking lot and, soon after, to a more secluded school parking lot. It is the sexual activity that took place at this final location that, ultimately, led to the criminal charge against the appellant.

[7] At trial, the complainant testified that she was in and out of consciousness during the sexual encounter at the final location. When she was conscious, she repeatedly communicated her refusal to engage in sex.

[8] The appellant testified that he asked the complainant if she wanted to have sex and in response she asked if he had a condom.

[9] After the appellant retrieved a condom from his car trunk, both the appellant and the complainant agree that the complainant said she was not sure if they should continue. The appellant testified that they continued to talk for about 40 minutes. Then they went to the back seat of the car.

[10] The appellant says that at this juncture the complainant willingly performed oral sex on him before he performed oral sex on her.

[11] Then the parties engaged in sexual intercourse. The complainant testified that she was partially unconscious and did not consent to the sexual intercourse. The appellant testified that the complainant communicated her consent by way of her conduct.

(2) The trial judge’s decision

[12] The trial judge convicted the appellant of sexual assault. He found that the complainant was not capable of consenting due to alcohol consumption and concluded that the appellant had not established an honest but mistaken belief in communicated consent.

[13] In reaching this conclusion, the trial judge reviewed the evidence of four witnesses who testified about the complainant’s consumption of alcohol on the night of the contested events. Ultimately, the trial judge accepted the complainant’s evidence of the sexual encounter and the impact of her intoxication as credible and reliable. He found that the complainant said “No” during the sexual activity and that she was too intoxicated to consent. The appellant did not have an honest but mistaken belief in communicated consent because, while he may have had a subjective belief that the complainant was communicating her consent to sexual activity, he did not take steps, beyond noting her physical engagement in the incident, to confirm that she was consenting to sexual intercourse.


[30]      I have read the reasons of my colleague proposing to allow the appeal and to order a new trial. While I agree with this disposition, respectfully, I do not agree with my colleague’s analysis. The trial judge could properly have found on the facts that he assumed in considering the issue of honest and mistaken belief in communicated consent (his acceptance of S.B.’s testimony on this issue), that S.B.’s belief that C.F. consented to sexual intercourse was objectively unreasonable. I have concluded however that the trial judge erred in his analysis of the actus reus of the offence. In finding that C.F. lacked capacity to consent to sexual intercourse because she was “in and out of consciousness”, the trial judge did not consider S.B.’s evidence relating to the relevant time period – when the two were alone in S.B.’s car together. S.B.’s evidence, while not determinative, was relevant circumstantial evidence on the question of C.F.’s incapacity to consent, and was relevant to the assessment of the credibility and reliability of C.F.’s evidence. The trial judge’s failure to consider S.B.’s evidence on the issue of capacity to consent was a material error that justifies allowing the appeal. [Emphasis by PJM]

2.   Legal Principles

[48]      Section 273.1(1) of the Criminal Codedefines consent as the “voluntary agreement of the complainant to engage in the sexual activity in question”. Consent must be present at the time the sexual activity in question takes place: s. 273.1(1.1), and, as Karakatsanis J. stated in G.F., “there is no reason why the entire course of sexual activity must be blanketed with a single finding of consent, non-consent or incapacity”: at para. 63. Section 273.1(2) provides that no consent is obtained in certain circumstances, including if (a.1) the complainant is unconscious; or (b) the complainant is incapable of consenting to the activity for any reason other than that they are unconscious.

[49]      Being awake, although necessary, is not sufficient. Proof of intoxication or of a complainant’s lack of memory are not enough to establish lack of capacity, although evidence of both is relevant: see G.F. at para. 86; Kaczmarek at paras. 33-34; R. v. C.P., 2019 ONCA 85, 373 C.C.C. (3d) 244 at para. 65, aff’d 2021 SCC 19, 71 C.R. (7th) 118. To have capacity to consent to a sexual act, the complainant must have an operating mind, capable of understanding (1) the physical act; (2) that the act is sexual in nature; (3) the specific identity of the participants; and (4) that she has the choice to refuse to participate: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 3, 36-37, 66; G.F., at paras. 29, 43, 47, 55-58.

[50]      The Supreme Court, in R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, observed that the absence of consent is subjective, and that the complainant’s evidence that they did not consent is a matter of credibility to be weighed in light of all the evidence, including the complainant’s words and actions before and during the incident, and by reference to “the totality of the evidence, including any ambiguous or contradictory conduct by the complainant”: at paras. 29, 61. With respect to consent, where the complainant testifies that they did not consent, the question is one of credibility. The evidence of other witnesses, including the accused, about the “totality of the complainant’s conduct” can be considered to determine whether it is consistent with the complainant’s claim of non-consent. As the court noted in Ewanchuk, at para. 30, however “[t]he accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry”.

[51]      With respect to capacity to consent, while the complainant will often provide relevant evidence, the question is not whether she subjectively believed that she had or did not have capacity, but whether, based on all the evidence, the Crown has proven lack of capacity beyond a reasonable doubt. The evidence of an accused person can be relevant both to the assessment of the complainant’s credibility, and as circumstantial evidence to be considered on the question of capacity. While the complainant’s evidence and their credibility are important, the court must consider all the relevant evidence, including as in this case, the observations of other witnesses of the complainant’s consumption of alcohol, level of intoxication and conduct, to determine whether the complainant lacked the capacity to consent when the sexual act occurred: see, for example, C.P., at paras. 56-57; Kaczmarek at paras. 40-45; and R. v. F.B.P., 2019 ONCA 157 at paras. 4-6. Although not required, in some cases there is expert evidence on the issue of capacity: see, for example, R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237. [Emphasis by PJM]

S.B.’s Evidence Was Relevant Circumstantial Evidence and Relevant to the Assessment of C.F.’s Credibility

[54]      Unfortunately, the trial judge did not refer to S.B.’s evidence that was relevant to C.F.’s capacity to consent at the time the sexual acts occurred. The trial judge did not consider, and assess, S.B.’s evidence as circumstantial evidence of C.F.’s mental state. Nor did he take into consideration S.B.’s evidence in his assessment of C.F.’s credibility and reliability. While S.B. could not provide direct evidence on the issue of C.F.’s capacity, his observations of C.F.’s physical state – whether she appeared to be unconscious or asleep, and how she conducted herself – was evidence that was relevant to the issue of C.F.’s capacity to consent. The trial judge was entitled to reject some or all of S.B.’s evidence about C.F.’s behaviour as it related to her intoxication, level of consciousness and accordingly her capacity to consent, but he did not do so.

[56]      In dismissing evidence that C.F. could “get into a car, eat, kiss, get into the back seat of a small car and have sex”, the trial judge conflated the issue of C.F.’s capacity to consent with circumstantial evidence bearing on that issue. While there is no question that the “ultimate question of capacity” was whether C.F. understood the sexual activity in question, and not whether she could walk, talk and perform other actions, and while S.B.’s evidence about C.F.’s behaviour was not determinative of the issue of capacity to consent, it was relevant circumstantial evidence. Just as the evidence that C.F. was “a little off balance” and grabbed her friend’s arm when they were going down some stairs at the nightclub a few hours before the alleged sexual assault was considered to be relevant to her level of intoxication, and therefore her capacity to consent, S.B.’s evidence about C.F.’s apparent level of sobriety and her behaviour, particularly at the time the sexual contact occurred, was also relevant. The trial judge concluded that C.F. was in and out of consciousness, and at one point stated that she awoke during a sexual act. He arrived at this conclusion after considering C.F.’s evidence, and without referring to S.B.’s evidence. While S.B. could not provide direct evidence on the issue of capacity, his observations amounted to circumstantial evidence and were relevant in assessing the credibility of the complainant’s evidence relating to capacity. S.B.’s evidence was part of “the totality of the evidence, including any ambiguous or contradictory conduct by the complainant”: Ewanchuk, at para. 61.

[57]      Even if the trial judge was of the view that the issue of capacity turned largely on C.F.’s evidence, he erred in failing to assess the credibility and reliability of such evidence based on all of the evidence, including S.B.’s account. A trial judge is obliged to consider the whole of the evidence in deciding the case: R. v. Gostick (1999), 1999 CanLII 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont. C.A.), at paras. 14-18. It is an error for a trial judge to fail to reconcile the inconsistencies between the Crown and defence evidence: R. v. D.A., 2012 ONCA 200, 289 O.A.C. 242, at para. 11.

The Failure to Consider S.B.’s Evidence was a W.(D.) Error

[58]      At paras. 30 and 31 of his reasons, the trial judge instructed himself correctly on the need to apply the principles of W.(D.)[1] and he recognized that “[t]o obtain a conviction, the Crown must negate all exculpatory evidence, whether it arises in its own case or the defence case”. However, contrary to his self-instruction, the trial judge did not consider S.B.’s evidence in relation to the issue of C.F.’s capacity to consent, and he did not require the Crown to “negate all exculpatory evidence”.

[59]      The failure to consider S.B.’s evidence in relation to the Crown’s proof of the actus reus of the offence was a W.(D.) error. ...


[68]      Accordingly, I would allow the appeal and direct a new trial.

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