The Defence Toolkit – February 17, 2024: “Crown onus”

This week’s top three summaries: R v Refaeh, 2024 ONSC 755: #onus on driving offence, R v Ozipko, 2024 SKCA 9: NCR #release, and R v Larin, 2024 ABKB 47: #possession.

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R v Refaeh, 2024 ONSC 755

[February 5, 2025] Crown Onus to Disprove Reasonable Excuse Defences [Petersen J.]

AUTHOR’S NOTE: Grounded in general principles of statutory interpretation, this case has extreme benefit to the Defence. Not only does it interpret all the current driving offences that include reasonable excuses as requiring the Crown to disprove such excuses beyond a reasonable doubt, it also provides good ammunition for the same interpretation to apply to other "reasonable excuse" language in the Code. The case remains persuasive only, but the principles are well articulated and the review of caselaw is broad. Defence counsel would do well to keep this one close at hand when arguing future driving offence cases and when trying to be creative with the onus arguments elsewhere. 

OVERVIEW

[1] This decision is about which party bears the onus of proof when an accused person asserts a “reasonable excuse” for failing to stop, provide information, and render assistance after being involved in a motor vehicle accident. “Reasonable excuse” is a statutory defence found in s.320.16 of the Criminal Code, R.S.C. 1985, c. C-46:

320.16 (1) Everyone commits an offence who operates a conveyance and who at the time of operating the conveyance knows that, or is reckless as to whether, the conveyance has been involved in an accident with a person or another conveyance and who fails, without reasonable excuse, to stop the conveyance, give their name and address and, if any person has been injured or appears to require assistance, offer assistance.

(2) Everyone commits an offence who commits an offence under subsection (1) and who at the time of committing the offence knows that, or is reckless as to whether, the accident resulted in bodily harm to another person.

(3) Everyone commits an offence who commits an offence under subsection (1) and who, at the time of committing the offence, knows that, or is reckless as to whether, the accident resulted in the death of another person or in bodily harm to another person whose death ensues.

[2] Mr. Refaeh was indicted on two counts: (1) dangerous driving causing bodily harm, contrary to s.320.13(2) of the Criminal Code and (2) failure to stop after an accident that resulted in bodily harm, contrary to s.320.16(2) of the Criminal Code. A jury convicted him of both offences. The issue concerning the burden of proof arose during the preparation of my final instructions to the jury.

[3] The Crown’s theory of the case was that Mr. Refaeh participated in a street race with the driver of another vehicle, which culminated in the other vehicle being involved in a high-speed head-on collision with a third vehicle. A passenger in the third vehicle was seriously injured.

[4] Mr. Refaeh testified at histrial. He denied racing. He asserted that he was speeding because he was trying to escape the maniacal driver of the other car, who was tailgating him at a dangerously close distance, and was trying to run him off the road. There was evidence at trial that prior to the head-on collision, the driver of the other vehicle pulled up beside Mr. Refaeh’s car in the lane for oncoming traffic and side-swiped him. The Defence argued that the incident was a chase, not a race.

[5] Mr. Refaeh relied on the defence of necessity with respect to the dangerous driving charge. Necessity is a common law defence. An accused person who wishes to rely on a common law defence must show that the defence has an air of reality based on the evidence, otherwise the trial judge is not required to put it to the jurors for their consideration. To determine whether a defence has an air of reality, the trial judge must decide whether there is evidence on the record upon which a properly instructed jury, acting reasonably, could acquit if it accepted the evidence as true. The burden on the accused is therefore merely evidential, not persuasive. If an air of reality is demonstrated, then the Crown bears the onus of disproving the asserted defence beyond a reasonable doubt: R. v. Osolin, [1993] 4 S.C.R. 595, at 682; R. v. Cinous, 2002 SCC 29, at paras. 49, 52, 54, 60, 81, and 87.

[7] The Defence argued that, if the jury concluded Mr. Refaeh’s vehicle was involved in the accident, he had a reasonable excuse for failing to comply with his legal obligations based on his well-founded fear of the other driver. The Defence submitted that there was an air of reality to the asserted excuse and asked me to put the statutory defence to the jury for its consideration. The Crown conceded there was an air of reality but argued that the accused had the persuasive burden of proving the existence of the asserted reasonable excuse on a balance of probabilities.

[8] I ruled that the accused had only an evidential burden to establish an air of reality to the asserted excuse, and that the Crown bore the ultimate persuasive burden of disproving the existence of a reasonable excuse beyond a reasonable doubt. This decision sets out my reasons for that ruling.

[16] Parliament did not explicitly stipulate, either in s.320.16 or in any other provision of Bill C-46, where the onus of proof lies with respect to this new statutory defence. The placement of the onus therefore cannot be discerned from only the grammatical and ordinary meaning of the words used by the legislature. However, as set out below, the overall scheme of the Criminal Code and the legislative context in which s.320.16 was enacted assist in ascertaining Parliament’s intent with respect to the burden of proof.

Uniformity of Driving Offences in Part VIII.1 of the Criminal Code

[21] With the enactment of Bill C-46, Parliament created three driving-related offences within the same Part of the Criminal Code, each of which contains the identical phrase “without reasonable excuse.” There is therefore a presumption that Parliament intended that defence to be interpreted and applied in a similar fashion for all three offences, including the placement of the burden of proof. There is nothing in Bill C-46 (or elsewhere in the Criminal Code) that suggests Parliament intended the onus of proof with respect to this statutory defence to lie with a different party depending on whether an accused was charged with an offence under s. 320.16 or with an offence under one of the two provisions that bookend s. 320.16.

Bill C-51 and the Repeal of s. 794(2) of the Criminal Code

[23] Bill C-51 effected sweeping changes to the Criminal Code that can be grouped into three broad categories: (1) it amended and clarified several provisions pertaining to the law of sexual assault to ensure that the Code conforms to Supreme Court of Canada jurisprudence and that complainants in sexual assault cases are treated with compassion, dignity and respect; (2) it removed several Criminal Code offences that were obsolete, such as challenging someone to a duel and fraudulently pretending to practice witchcraft; and (3) it repealed numerous Criminal Code provisions that had been found to be unconstitutional by the courts or that are similar to those found unconstitutional by the courts: An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, S.C. 2018, c. 29.

[24] The latter category of amendments repealed or modified sections of the Criminal Code that contained evidentiary presumptions (allowing the Crown to establish an element of an offence by proving some other fact that is not an element of the offence) and reverse onus provisions (requiring an accused to prove or disprove something). The following are just a few examples of the reverse onuses repealed by Bill C-51:

a) Section 5 of the bill removed the words “the proof of which lies on the person” from s. 82(1) of the Criminal Code, which proscribes possession without lawful excuse of an explosive substance.

b) Section 9 of the bill removed the words “the proof of which lies on him” from ss. 145(1) to (5.1) of the Criminal Code. These subsections proscribe the offences of failure, without lawful excuse, to attend court in accordance with a release order, to comply with a condition in a release order, to comply with an undertaking, and to appear in court pursuant to a summons.

c) Section 35 of the bill removed the words “the proof of which lies on that person” from s. 349(1) of the Criminal Code, which proscribes entry without lawful excuse into a dwelling with the intend to commit an indictable offence.

[25] Bill C-41 also repealed the following subsection of the Criminal Code in its entirety:

794(2) The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, proviso or qualification does not operate in favour of the defendant, whether or not it is set out in the information.

[27] The enactment of Bill C-51 occurred just days before Bill C-46 came into effect and overhauled the driving offence provisions in the Code. The Defence argues that the repeal of s.794(2) in Bill C-51 clearly signaled Parliament’s intention to impose on the Crown the burden of disproving any reasonable excuse asserted by an accused charged with one of the driving offences enacted by Bill C-46 (provided that the proffered excuse has an air of reality). The Crown disputes that this was Parliament’s intention. The Crown submits that the repeal of s. 794(2) had no impact on the established common law principle that an accused person bears the burden of proving any exception, exemption, or excuse prescribed by law.

[29] These early statutory provisions codified the common law principle that although the Crown must prove the elements of an offence beyond a reasonable doubt, the accused must establish, on a balance of probabilities, that a statutory exemption or exception applies: Goleski, at para. 60, citing R. v. Edwards, [1975] 1 Q.B. 27, at 36 (C.A.). Parliament likely deemed it necessary to state this rule expressly in legislation because the justices of the peace who were being appointed to hear summary conviction trials were not lawyers and therefore may not have been familiar with the applicable common law principle.

[31].... That uncertainty was resolved by the Supreme Court of Canada decision in R. v. Goleski, 2015 SCC 6, which held that the section continued to impose the burden of proof on an accused who professed to have a reasonable excuse for failing to comply with a roadside demand for a breath sample.

[32] The Supreme Court of Canada dismissed the appeal in Goleski in a one-line judgment: “In our view, the British Columbia Court of Appeal correctly concluded that s. 794(2) of the Criminal Code, properly interpreted, imposes a persuasive burden on the accused to prove an ‘exception, exemption, proviso, excuse, or qualification prescribed by law.” In arriving at its interpretation of s.794(2), the British Columbia Court of Appeal applied the principle that statutes should not be construed so as to alter the common law unless such an interpretation is clearly required (para. 77). The Court of Appeal found that it would require much clearer language in s.794(2) to ascribe to Parliament an intention to impose on the prosecution the burden of proving that an accused did not have a reasonable excuse (para. 79). The Court of Appeal held, “when examined through a historical lens it is evident that Parliament did not intend to effect a sea change to a provision grounded in the common law and which had been in force for close to 85 years” (para. 75).

[34] As set out below, there is some support in the jurisprudence for the Crown’s position, but the case law is not settled on this point.

Relevant Jurisprudence

[35] The Alberta Provincial Court has ruled, in a series of recent cases involving offences under s.320.15 of the Code, that the repeal of s.794(2) revives the common law, and that the onus is therefore on the accused to establish a reasonable excuse for failing to comply with a police officer’s demand for a breath sample: R. v. Allen, 2020 ABPC 34, at para. 11; R. v. McKinnon, 2020 ABPC 86, at paras. 29-32; and R. v. Daytec, 2021 ABPC 48, at paras. 57-58. However, in R. v. Slowinski, 2021 ABPC 160, at paras. 50, 54, and 80, Schlayer J.P. of the same Provincial Court expressed doubt about the correctness of those decisions in obiter comments (in the context of a case involving provincial offences under an animal control bylaw).

[36] In R. v. Thijs, 2022 ABKB 608, at para. 222, the Alberta Court of King’s Bench imposed the onus of proving a reasonable excuse on an accused charged with failing to remain at the scene of an accident under s.320.16 of the Code. However, no reasons were provided for this placement of the burden of proof, no authority was cited, and no mention was made of the repeal of s. 794(2) of the Code. The Yukon Territorial Court did the same thing in R. v. Holbein, 2023 YKTC 12, at para.49. It is unclear whether any consideration was given to the repeal of s.794(2) in these two cases, or whether submissions were even made on the issue of burden of proof.

[38] There is conflicting jurisprudence on this issue in the Ontario Court of Justice. There are two s.320.16 cases in which the Court imposed on the accused the onus of proving a reasonable excuse for failing to stop after an accident: R. v. Uhuangho, 2020 O.J. No. 5189, at para. 67; R. v. Webb, 2020 ONCJ 294, at para. 9. However, no reasons were provided for this finding, no authorities were cited, and no mention was made of the repeal of s.794(2). It is unclear whether the burden of proof was raised as an issue.

[40] I note that all the above cases were decided in the context of summary conviction proceedings. In this case, Mr. Refaeh was charged and prosecuted by way of an indictment. I am mindful that s.794(2) of the Code applied exclusively to summary conviction offences and therefore would not have applied in this case, even if it had not been repealed by Bill C-51. The effect of the repeal of s.794(2) is nevertheless relevant to the issue of onus of proof in this case because the offences proscribed by ss. 320.15(1)(2), 320.16(1)(2) and 320.17 are all hybrid offences: Criminal Code, ss. 320.19(1)(5), 320.2. Parliament cannot have intended that, for each of these driving offences, the burden of proof for the statutory defence of reasonable excuse depends on whether the Crown elects to proceed by way of summary conviction or by way of indictment. That would give the Crown the ability to decide who bears the onus in any given case, which would be absurd. [PJM Emphasis]

[41] The jurisprudence developed in summary conviction cases is therefore relevant to my analysis. However, I am not bound by any of the above-mentioned decisions of inferior courts and superior courts of other provinces. Neither party provided me with any binding authority on the issue. To the best of my knowledge, the issue has not been considered by any appellate court.

[42] For the reasons that follow, I do not find the Crown’s submissions, nor the cases relied on by the Crown to be persuasive.

ANALYSIS

[43] Where there is conflicting jurisprudence on the proper interpretation of a statutory provision, the Supreme Court of Canada has cautioned that “it would be improper for one to engage in a preliminary tallying of the number of decisions supporting competing interpretations and then apply that which receives the ‘higher score’”: Bell ExpressVu, at para. 30. Rather, the Court must undertake a contextual analysis of the provision to determine the correct interpretation, consistent with the modern approach to statutory interpretation (see paragraph 9 of this decision).

[44] In this case, Parliament’s intention in repealing s.794(2) just days prior to the enactment of s.320.16, is part of the context that must be considered. When Bill C-51 was tabled in the House of Commons, the Department of Justice published a Backgrounder, a Charter Statement, and a Questions and Answers document outlining the scope and purpose of the proposed legislation: https://www.justice.gc.ca/eng/csj-sjc/pl/cuol-mgnl/c51.html. These legislative documents shed light on Parliament’s objective when it removed multiple reverse onus provisions from the Criminal Code, including s.794(2). The documents note that, in some cases, reverse onus provisions had been found to be unconstitutional by the courts because they infringed an accused’s Charter right to be presumed innocent until proven guilty beyond a reasonable doubt. The Department of Justice Backgrounder explained that the repeal of those unconstitutional provisions was intended to “promote clarity in the law and help to avoid confusion and errors by ensuring that the laws on paper reflect the laws in force.”

[45] The Crown argues that Parliament’s expressed intention to re-align the Code with the jurisprudence does not apply to the repeal of the reverse onus in s.794(2) because that section has never been found to be unconstitutional. This argument overlooks the fact that the purpose of Bill C-51 was not simply to avoid confusion by removing unconstitutional provisions from the Code. This is clear from the preamble to Bill C-51, which states: “This enactment amends the Criminal Code to amend, remove or repeal passages and provisions that have been ruled unconstitutional or that raise risks with regard to the Canadian Charter of Rights and Freedoms” (emphasis added). In the Backgrounder published the same day that Bill C-51 was tabled in the House of Commons, the Minister of Justice explained that repealing provisions “similar to those found unconstitutional by the courts” would help to avoid expensive, time-consuming litigation and prevent court delays.

[46] Parliament intended to repeal not only reverse onus provisions that had been declared unconstitutional, but also reverse onus provisions that could be the subject of Charter challenges and would therefore contribute to protracted litigation and court delays if they remained in force. The Defence argues that s. 794(2) is such a provision. For the reasons that follow, I agree with the Defence on this issue.

[49] I agree with the Crown’s submission that Parliament must be presumed to have known the state of the jurisprudence when it decided to repeal s.794(2). However, when Parliament enacted Bill C-51 on December 13, 2018, Peck and Gray were not the only relevant court decisions, and the jurisprudence was not settled on the issue of the constitutionality of s.794(2).

[52] The constitutionality of s.794(2) was not raised in Goleski. However, the British Columbia Court of Appeal in that case was careful to note (at para. 30) that it did not hear submissions based on the Charter and was not considering the constitutionality of the section. It thereby subtly signaled to Parliament the risk that the reverse onus in s.794(2) could be subject to a Charter challenge.

[54] Parliament is presumed to have known all the above jurisprudence when it enacted Bill C51. I therefore infer that s.794(2) was one of the reverse onus provisions that Parliament believed was likely to attract a Charter challenge. Regardless of whether Parliament believed the provision could withstand Charter scrutiny, the evidence (including the aforementioned Department of Justice Backgrounder) demonstrates that Parliament chose to repeal it to avoid expensive and protracted litigation on the issue.

[55] I conclude that, with the enactment of Bill C-51, Parliament intended to remove the reverse onus that s.794(2) placed on an accused charged with a summary conviction offence that allows for a statutory defence of reasonable excuse. At the time of the repeal, those offences included failure to comply with a demand for a breath sample (s.254(5)), and flight from police (s.249.1). There is nothing in the legislative record to suggest that, when Parliament overhauled the driving offence provisions of the Criminal Code five days later with the enactment of Bill C-46, it intended to reintroduce the reverse onus with respect to “reasonable excuse” in ss. 320.15, 320.16 and 320.17. When the larger legislative context is taken into consideration, it becomes clear that the Crown’s interpretation of the placement of the burden of proof in s.320.16 cannot be correct because it is directly contrary to Parliament’s intent when it repealed s.794(2) days prior to enacting s.320.16.

[56] Moreover, the Crown’s interpretation of s.320.16 is not supported by the grammatical and ordinary sense of the words chosen by the legislature in drafting the provision. I agree with Defence counsel’s submission that the Crown is effectively asking the court to read the words “proof of which lies with the accused” into s.320.16 and by extension, ss. 320.15 and 320.17, when Parliament deliberately chose not to include that phrase in those provisions.

[57] The Crown argues the inverse, namely that Parliament did not explicitly impose the burden of disproving a reasonable excuse on the Crown when it drafted s.320.16. The Crown submits that s.320.16 should be interpreted in accordance with the principle that legislatures are presumed to preserve the common law absent a clear and unequivocally expressed intent to change the common law.

[58] Such principles of statutory interpretation should not be employed unless there is real ambiguity in the legislation: Bell ExpressVu, at paras. 28-30. I have concluded, after conducting a contextual analysis (required by the modern approach to statutory interpretation), that there is no ambiguity. Parliament clearly intended to remove the reverse onus.

[59] If I am wrong and there is ambiguity with respect to the placement of the onus of proving or disproving a “reasonable excuse” under s.320.16, then I must also consider other principles of statutory interpretation to resolve the ambiguity. There are four principles that apply in this case. As explained below, each of them supports an interpretation of s.320.16 that imposes the burden of proof on the Crown.

[60] The first is the principle cited by the Crown, namely that Parliament is presumed to preserve the common law absent a clearly expressed intent to change a common law rule. In the specific circumstances of this case, this principle does not support the Crown’s position, because the repeal of s.794(2) just days prior to the enactment of s.320.16 constitutes a clear expression of Parliament’s intent to abrogate the centuries-old common law principle that an accused bears the onus of establishing the existence of an exception, exemption or excuse prescribed by law. Indeed, it is difficult to imagine a clearer expression of such legislative intent. When Parliament enacted Bill C-46, it would have been redundant to legislate explicitly that the Crown bears the onus of disproving any reasonable excuse asserted by an accused charged with one of the driving offences. The entire scheme of the Criminal Code is premised on the fundamental principle that the Crown bears the burden of proving every element of every offence and every element of every defence (that has an air of reality) beyond a reasonable doubt, absent express statutory imposition of a reverse onus on the accused. [PJM Emphasis]

[61] The second relevant principle of statutory interpretation is the presumption that legislatures do not speak in vain: Attorney General of Quebec v. Carrières Ste-Thérèse Ltée, [1985] 1 S.C.R. 831, at para. 28. This principle is typically applied in the context of rejecting an interpretation of a statute that would render words or provisions in the statute redundant. There is a presumption that legislators do not enact meaningless statutory provisions. Conversely, it must be presumed that Parliament does not repeal statutory provisions without effect. The Crown in this case is asking me to find that the repeal of an entire section in the Criminal Code (s.794(2)) had no impact whatsoever on the prosecution of driving offences to which it applied.

[62] The third relevant principle of statutory interpretation is that, where there are two possible interpretations of a provision, the one that embodies Charter values must be preferred over the one that does not: Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513, at para. 93; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at pp. 60-61. In this case, the relevant Charter value is the presumption of innocence. A statutory provision that imposes on the accused the persuasive burden of proving or disproving any factor affecting verdict violates the presumption of innocence. Whether "any factor affecting verdict" is an essential element of the offence, a collateral factor, an excuse, or a defence, does not mitigate the deleterious effect that the imposition of a reverse onus has on the presumption of innocence: R. v. Whyte, [1988] 2 S.C.R. 3, at paras. 27 and 32; R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 98; R. v. Fisher (1994), 17 O.R. (3d) 295 (C.A.), at p. 10, leave to appeal SCC refused, [1994] S.C.C.A. No. 176. Consequently, in this case, the Defence’s interpretation of s.320.16 must be preferred to the Crown’s interpretation, which would impose upon the accused the persuasive burden of proving a reasonable excuse in order to escape conviction.

[63] The fourth and final principle of statutory interpretation is that ambiguity in a penal provision should be resolved in the manner most favourable to the accused: United States of America v. Dynar, [1997] 2 S.C.R. 462, at para. 58. All the above principles of statutory interpretation support the position of the Defence in this case.

[64] Finally, I am not persuaded by the Crown’s argument that Parliament must have intended to impose the burden of proving a reasonable excuse on the accused because the reasons why a person fails to stop after an accident or fails to provide their information and offer assistance, are within the exclusive knowledge of that person. The Crown argues that, since any excuse is something that exists within the mind of the accused, its existence is not something that the Crown can easily disprove. The Crown submits that Parliament intended to simplify prosecutions when it overhauled the driving offences in the Criminal Code, so it makes more sense to impose the onus of proving a reasonable excuse on the accused because it would be extremely difficult for the Crown to disprove it beyond a reasonable doubt

[65] I do not find this argument to be compelling for two reasons. First, the Crown is not required to disprove every conceivable reasonable excuse that could exist. Rather, the Crown is only required to disprove any reasonable excuse that has an air of reality based on the evidence adduced. This is not an overly heavy burden. Second, although mental states can be challenging to prove or disprove, the Crown is required to do so routinely in other contexts by arguing for reasonable inferences to be drawn from circumstantial evidence. For example, when an accused relies on the defence of self-defence in s.34 of the Criminal Code, the onus is on the Crown to disprove that the accused believed on reasonable grounds that force or the threat of force was being used against them, and to disprove that the criminal act committed by the accused was committed for the purpose of defending themselves from the use or threat of force. The onus on the Crown in this case is no more difficult.

[66] For all these reasons, I conclude that the correct interpretation of s.320.16 is that advanced by the Defence, namely that the Crown bears the burden of disproving any asserted reasonable excuse that has an air of reality to it.

Evolution of the Common Law

[67] Had I adopted the Crown’s position that the repeal of s.794(2) of the Criminal Code effectively revived the common law, I would nevertheless have arrived at the same conclusion that the Crown bears the onus of disproving any asserted reasonable excuse under s.320.16. The outcome would be same because the common law must evolve in a manner that is consistent with Charter values. The Court cannot enforce a centuries-old common law rule that would infringe upon the presumption of innocence by imposing a reverse onus on the accused.

[71] I conclude that, in the absence of a statutory imperative, the Court cannot impose a reverse onus on the accused because to do so would render the common law inconsistent with the presumption of innocence, a fundamental Charter value.

R v Ozipko, 2024 SKCA 9

[February 7, 2024] NCRMD Release [Reasons by Brennan J.A. with Leurer C.J.S. and McCreary J.A. concurring]

AUTHOR’S NOTE: While most defence counsel do not practice in this area (ie. once the criminal conviction/sentencing is complete), any defence lawyer preparing to advance a defence of NCRMD should read up on what happens afterwards with the accused. This case is a good news example of someone being released. While many do not make it to this point and risk indeterminate detention, it is useful to know that there can be success on the other end of the process. 

I. INTRODUCTION

[1] On June 10, 2016, a Court of Queen’s Bench judge found Mr. Ozipko to be not criminally responsible by reason of mental disorder for the offences of murder and attempted murder (R v Ozipko, 2016 SKQB 203). He was subsequently detained and treated in hospital until 2021.

[2] Thereafter, following a series of annual reviews of his detention pursuant to s. 672.81 of the Criminal Code, Mr. Ozipko was transitioned into the community on certain conditions by the Saskatchewan Review Board [Board]. After conducting a further detention review in October of 2022, the Board granted Mr. Ozipko an absolute discharge on November 4, 2022. It is from this decision that the Crown appeals.

II. BACKGROUND

[5] On March 10, 2013, Mr. Ozipko attacked three individuals with a knife in a multi-resident home where he was living at the time. These individuals were known to Mr. Ozipko. There was no animus between Mr. Ozipko and the victims, nor any provocation leading to the attack.

[6] The first victim died as a result of his injuries. The second victim sustained non-lifethreatening injuries, while the third escaped uninjured.

[8] At the trial, defence and Crown counsel placed the evidence of forensic psychiatrist Dr Lohrasbe before the Court, and jointly submitted to the trial judge that, at the time he committed the offences, Mr. Ozipko was suffering from a “disease of the mind” within the meaning of s. 2 of the Criminal Code.

[9] Dr. Lohrasbe testified that Mr. Ozipko was in a psychotic state at the time of the offences, due to a combination of schizotypal personality disorder (likely a precursor to a diagnosis of schizophrenia), sleeplessness, as well as the onset of acute psychotic symptoms. He opined that at the time of the offences, Mr. Ozipko suffered from a disease of the mind and did not appreciate the nature and consequences of his actions.

[10] The trial judge accepted the evidence of Dr. Lohrasbe and went on, pursuant to s. 672.34 of the Criminal Code, to find Mr. Ozipko not criminally responsible. Mr. Ozipko was subsequently detained at the Saskatchewan Hospital for approximately five years, where he was ultimately diagnosed with schizophrenia, treated, and medicated.

[11] Mr. Ozipko’s detention was thereafter reviewed by the Board on an annual basis. In a decision dated August 9, 2021, the Board discharged Mr. Ozipko into the community on conditions. Notably, counsel for both the Crown and Mr. Ozipko jointly recommended this disposition, on the condition that Mr. Ozipko reside in an approved home, maintain his sobriety, and attend psychiatric appointments and programming. The Board scheduled a further review of Mr. Ozipko’s detention to permit victim participation.

[13] The matter was again reviewed by the Board on October 14, 2022. On this occasion, it had the benefit of a risk assessment completed by forensic psychiatrist Dr. Adams and psychologist Ms. Buttinger. That assessment concluded that Mr. Ozipko’s risk of causing serious harm was “moderate”. It linked this risk to the possibility of a further psychotic episode, “dependent on this risk of relapse into mental illness”, a “modifiable risk factor if someone is to engage in available treatments”.

[14] Before the Board, Crown counsel took the position that “moderate” risk was still substantial risk, and that Mr. Ozipko had limited insight into his mental health. Defence counsel argued that Mr. Ozipko was ready to be absolutely discharged, noting that he had been compliant with all conditions and treatment while in the community. In particular, he had completed addictions programming, and his addictions worker no longer required that he attend for follow up. Further, Mr. Ozipko’s evidence was that he would continue to reside in the same group residence and follow through with ongoing treatment and medication in the community. He was in receipt of income support benefits and would continue to have those resources available to him. Mr. Ozipko further indicated that if he felt unwell, he would voluntarily attend the hospital.

[15] The Board considered Mr. Ozipko’s evidence, the risk assessment, the evidence of Mr. Ozipko’s residential service provider, the victim impact statement from one victim’s daughter, and the submissions of counsel. It went on to determine that Mr. Ozipko no longer posed a significant risk to public safety, stating its rationale in this way:

[14] As noted, the index offences are very serious however, Mr. Ozipko has demonstrated by his time in the community that his risk to public safety has diminished. Mr. Ozipko has a stable and supported home environment in the group home of […]. He has regular psychiatric care. He has been medically compliant without issue. He has been involved with an addictions worker in the past who has advised him he does not need to see him anymore. He has family support from his sister, and he is well connected to his children. He reports zero craving for alcohol and on a scale of 0 to 10 with 0 being the lowest and 10 being the highest, he has a level 1 craving for marijuana. He is aware that if he is feeling unwell, he should attend at the hospital.

[15] Mr. Ozipko reports to enjoying his life; taking long walks, watching hockey games, and watching comedy videos and movies. He has made friends with the other residents in the home and his home operator finds him to be pleasant and enjoyable. He does not cause any issues in the home.

[16] Mr. Ozipko has made progress and things may well improve for him further. However, the Board is satisfied at the current time based on the risk assessment completed by Dr. Adams and Ms. Buttinger and the observations of Mr. Ozipko in the community, Mr. Ozipko no longer poses a significant threat to the safety of the public. His risk is well managed and will continue to be well managed by the supports that Mr. Ozipko has around him. As such, Mr. Ozipko will be absolutely discharged.

III. ANALYSIS

[16] The Crown asserts that the conclusion found in paragraph 16 of the Board’s decision discloses a legal error in its approach to the test used to determine whether Mr. Ozipko posed a significant threat to public safety. Specifically, it takes issue with the portion of the reasons where, after concluding that Mr. Ozipko “no longer poses a significant threat to the safety of the public”, the Board stated that his “risk is well managed and will continue to be well managed by the supports that [he] has around him”.

[17] The Crown suggests that this passage demonstrates that the Board (a) erroneously conflated the question of whether a risk existed with the question of whether risk can be adequately managed, (b) improperly assessed Mr. Ozipko’s risk as though he would continue to be supervised and supported by the state, and (c) in its use of the term “risk”, acknowledged that Mr. Ozipko posed a significant risk absent state supports. The Crown contends that this is contrary to the approach outlined in R v Owen, 2003 SCC 33, [2003] 1 SCR 779 [Owen], and R v Baker (2001), 155 CCC (3d) 202 (Ont CA) [Baker], constitutes an error in law, and renders the Board’s determination unreasonable. At its core, the Crown’s overarching submission is that, given the evidence that Mr. Ozipko presented as being a “moderate” risk, the Board should have concluded that he posed a significant risk.

[18] Respectfully, I disagree with the Crown’s contention that the Board’s reasoning respecting whether Mr. Ozipko posed a significant threat to public safety reflects legal error. This is so for three reasons

[19] First, as acknowledged by the Crown, the Board was clearly alive to the correct legal test for determining what constitutes a significant threat or risk in the context of an NCR individual. The Board noted that a “significant threat to the safety of the public” is a “risk of serious or psychological harm to members of the public … resulting from conduct that is criminal in nature but not necessarily violent” (s. 672.5401 of the Criminal Code) (at para 10). Where an NCR individual is found not to be a significant threat to public safety, he or she must be absolutely discharged (s. 672.54(a)).

[20] The Board further noted that a significant risk is not speculative or miniscule and that it must be significant “both in the sense that there must be real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious” (at para 12, citing Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625 at para 57 [Winko]; see also Kassa (Re), 2019 ONCA 313 at para 31 [Kassa]). It also appropriately highlighted the point that the significant risk standard is an “onerous one”, and that an “accused is not to be detained on the basis of mere speculation” (at para 13, citing Carrick (Re), 2015 ONCA 866 at para 17, 128 OR (3d) 209). Thus, I am satisfied that the Board clearly understood and articulated the correct legal test.

[21] Second, in my view, the Board properly applied the legal principles surrounding the question of significant risk to the evidence before it. It noted that Mr. Ozipko had made progress in the community, and specifically that he (a) had a supportive home environment, (b) was compliant with and receiving regular psychiatric care, (c) had a strong family connection and supports, (d) had successfully completed addictions treatment, and (e) enjoyed life and activities in the community. The Board further considered the psychiatric evidence before it, including the risk assessment completed by Dr. Adams and Ms. Buttinger. While that assessment concluded that Mr. Ozipko’s risk for “serious harm” was “moderate”, that risk was dependent on his relapse into symptoms of mental illness, by way of re-engaging with substance use, discontinuing treatment, and disengaging from positive community supports.

[22] It was in light of this evidence that the Board concluded that “Mr. Ozipko no longer poses a significant threat to the safety of the public” (at para 16). In subsequently commenting on his “risk” being “well managed” by ongoing community supports, I do not view the Board as conflating risk with risk management, or as presuming that state supervision would be required for Mr. Ozipko’s risk to be mitigated. Rather, the Board was applying the approach approved in Winko, which permits a broad base of evidence to be considered in assessing significant risk – including an NCR individual’s voluntary risk management strategies and plans to engage with community supports and treatment in the future. In Winko, the Supreme Court stated:

[60] When making this difficult assessment of whether an NCR accused poses a significant threat to the safety of the public, a court or Review Board may be expected to be aware not only of the need for public protection, but of the fact that a past offence committed under the influence of mental illness may often bear little connection to the likelihood of reoffending, particularly when the NCR accused is successfully following a treatment program. At the same time, the commission of an offence in the past may in some circumstances constitute a link in a chain of events that demonstrates a propensity to commit harm, albeit unintentionally. The specific situation of each NCR accused must always be examined carefully.

[61] It follows that the inquiries conducted by the court or Review Board are necessarily broad. They will closely examine a range of evidence, including but not limited to the circumstances of the original offence, the past and expected course of the NCR accused’s treatment if any, the present state of the NCR accused’s medical condition, the NCR accused’s own plans for the future, the support services existing for the NCR accused in the community and, perhaps most importantly, the recommendations provided by experts who have examined the NCR accused. The broad range of evidence that the court or the Review Board may properly consider is aimed at ensuring that they are able to make the difficult yet critically important assessment of whether the NCR accused poses a significant threat to public safety. At all times, this process must take place in an environment respectful of the NCR accused’s constitutional rights, free from the negative stereotypes that have too often in the past prejudiced the mentally ill who come into contact with the justice system. Appellate courts reviewing the dispositions made by a court or Review Board should bear in mind the broad range of these inquiries, the familiarity with the situation of the specific NCR accused that the lower tribunals possess, and the difficulty of assessing whether a given individual poses a “significant threat” to public safety.

(Emphasis added)

[23] Contrary to the assertion of the Crown, the approach taken by the Board is consistent with Owen, which directs review boards to consider risk through the lens of how an NCR individual “would behave if state supervision were removed by an absolute discharge” (at para 28). The Board in this instance did exactly that....

....At law it was precluded from speculating on what theoretical risk Mr. Ozipko posed in the event that he ceased to voluntarily engage with risk management strategies. In any event, the record before the Board demonstrated Mr. Ozipko’s willingness to continue to engage with all the supports he had in place (distinguishing this circumstance from that in Baker at paras 9–11; see also Winko at para 57).

[25] ....To that end, I agree with Mr. Ozipko’s submission that a determination by the Board that he was not a significant threat did not require that he present zero risk. To the contrary, in a fashion consistent with the direction in Winko, the Board was acknowledging that some risk existed, as the record before it demonstrated, but that this risk did not meet the onerous legal standard of a significant threat.

[26] As previously noted, Winko and subsequent authorities caution against speculation in the assessment of significant risk. “The test is not whether [the accused’s] behaviour could lead to decompensation and therefore the risk of serious harm, but whether there is evidence to support a positive finding that there is a significant threat to public safety” (Sheikh (Re), 2019 ONCA 692 at para 10, emphasis in original). In other words, “[a]s Winko instructs, there must be a ‘real’ risk of physical or psychological harm arising from criminal conduct: at paras. 51, 57. ‘Could’ does not suggest the ‘real’ risk that Winko requires” (Kassa at para 35). Having regard to these authorities, I agree with Mr. Ozipko’s submission that given the inherent and long-term nature of his mental health concerns, the prospect of risk associated with a relapse into psychotic symptoms – which may often, if not always, be a theoretical possibility dependant on several variables – cannot, in and of itself, be determinative of the legal question of significant risk.

[27] In summary, I see no legal error committed by the Board that would result in intervention pursuant to s. 672.78(1)(b) of the Criminal Code.

IV. CONCLUSION

[29] The Crown appeal from the decision of the Board must be accordingly dismissed.

R v Larin, 2024 ABKB 47

[January 25, 2024] Possession: Circumstantial Case [R.J. Hall]

AUTHOR’S NOTE: This case is a good short summary of possession law with a good ending for the defence. A person found in a stolen trailer that contains controlled substances and a weapon is not necessarily in possession of the trailer and its contents. All the circumstances have to be considered. Here, that resulted in an acquittal. 

[1] At the conclusion of argument respecting this trial, I acquitted Matthew Fairweather and Kelly Sanderson of all charges against them. These are my written Reasons for Judgment.

[3] The Crown agreed that it had called no evidence against Mr. Fairweather or Ms. Sanderson on Count #1, and I acquitted Mr. Fairweather and Ms. Sanderson on that charge. The Crown proceeded to prosecute Counts 2, 3 and 4.

[4] Evidence was given by police as to a traffic stop by an RCMP officer who noted the licence plate did not match the trailer. During the traffic stop the constable noted part of the Vehicle Identification Number (V.I.N.) for the trailer had been defaced. The officer conducted checks from the computer in his vehicle and determined that the trailer was likely one that had been reported to have been stolen. When he returned to the white Dodge Ram truck (the “Dodge Ram”) to arrest the two occupants they had fled. The constable called in the canine unit to find those occupants.

[5] A second officer arrived at the scene. Together the two officers removed the safety bar which kept the trailer door closed from the outside, and opened the trailer. Mr. Fairweather and Ms. Sanderson were inside. They were arrested for possession of stolen property, searched and taken to an RCMP detachment.

[6] The two occupants of the Dodge Ram were located by a police dog and were arrested. They were Lance Larin and, reportedly, Karley Rylaarsdam.

[7] Mr. Larin was charged with these offences and others. He entered a guilty plea before another justice, in respect of drugs located in the Dodge Ram. Mr. Larin gave evidence in this trial.

[9] Mr. Larin stated that he knew Mr. Fairweather by his nickname “Beans”. He knew Ms. Rylaarsdam. He only met Ms. Sanderson that day. He said the plan was to drive to Saskatchewan to pick up a travel trailer from a friend of Mr. Fairweather; and to haul it back to Edmonton behind the Dodge Ram. The Dodge Ram had been borrowed from a friend in Edmonton. Whose friend that was is unclear on the evidence; but nothing really turns on it.

[10]....Mr. Fairweather and Ms. Sanderson entered the trailer to sleep. Mr. Larin secured the door with the safety bar on the outside. Mr. Larin began to drive. Shortly after, he was pulled over by the RCMP constable. Mr. Larin acknowledged that he and Ms. Rylaarsdam fled on foot into the trees, and were eventually found by the police dog and arrested.

[11] Ms. Sanderson took the stand. She stated that she had known Mr. Fairweather for a few months. On this occasion she had been in an argument with her boyfriend and wanted to get away. She messaged Mr. Fairweather and agreed to meet at a convenience store nearby. When they met, Mr. Fairweather asked if she would like to go for a ride, to pick up a trailer and then return. She agreed. She already knew Ms. Rylaarsdam but she just met Mr. Larin that day. The four of them smoked some methamphetamine, then embarked on the journey in the Dodge Ram. She was unclear on the time that they left, or arrived at the Saskatchewan destination. She stated that the four of them again smoked methamphetamine at the destination. She confirmed that Mr. Fairweather went into a house at the destination to meet with a friend or friends. She notes that she was not introduced to anyone at the destination. She confirmed that Mr. Larin hooked up the trailer travelling lights. She confirmed that Mr. Fairweather drove from Saskatchewan, past Lloydminster, with Mr. Larin sleeping in the back seat of the Dodge Ram. Mr. Fairweather pulled over and Mr. Larin agreed to take over the driving. Ms. Sanderson and Mr. Fairweather got into the trailer to sleep. She confirmed they were stopped by police shortly afterwards, as she could hear the discussions that took place. She and Mr. Fairweather stayed in the trailer for close to an hour, until the police opened the door and arrested them. The evidence showed that the trailer door could only be opened from the outside.

[12] The Crown acknowledged that, on the evidence adduced, it could not prove any of the charges against Ms. Sanderson, who had simply gone for the ride. I agreed, and I acquitted Ms. Sanderson of all charges.

[13] Mr. Fairweather chose not to give evidence.

[14] The Crown’s case against Mr. Fairweather on Count #3 is essentially that he was the one who set up the trip to pick up the trailer; the trailer had part of its V.I.N. defaced; there were marks around the door lock of the trailer that suggested the lock had, on some occasion, been jimmied. The Crown argued that the only reasonable inference was that Mr. Fairweather knew that the trailer was stolen.

[15] I disagree. It is quite possible he was doing a friend a favour by taking the trailer to Edmonton. I cannot conclude that the Crown has proven that he knew it was stolen beyond a reasonable doubt.

[16] The Crown argues that indicia of the trailer having been stolen; the defaced V.I.N. and the previously jimmied lock; were wilfully ignored by Mr. Fairweather. Again I consider the evidence is insufficient for such a finding beyond a reasonable doubt.

[17] A search of the trailer disclosed methamphetamine; in eight bags, located in a red bag in a storage area under the mattress of the bed in the trailer; and two bags of cocaine, under the mattress in the red bag. There was, as well, another bag of methamphetamine found in the trailer, but the constable was unable to recall exactly where it was found. An imitation handgun was also found in the trailer.

[18] Mr. Fairweather did not contest that the drugs were methamphetamine and cocaine, and the quantities were such as to be more than for personal use. However, the issue for the Crown is whether it could prove possession of the drugs by Mr. Fairweather.

[19] As I recently noted, in R v Sandhu, 2023 ABKB 681:

[29] Drug possession is defined in s 4(3) of the Criminal Code, RSC 1985, c C46 and imported into the Controlled Drugs and Substances Act, SC 1996, c 19, s 2(1). Section 4(3)(a) defines constructive possession as:

(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;

[30] Knowledge of the illegal material forms the mens rea for possession, while control of the illegal material is the actus reus: R v Cantrill, 2011 ABQB 273 at para 56. Constructive possession requires “knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the items to be possessed”: R v Pham, (2005) 2005 CanLII 44671 (ON CA) at para 15, aff'd 2006 SCC 26.

[31] Knowledge can be established by circumstantial evidence, such as a combination of finding of narcotics in plain view or in common areas of the residence, the presence of a scale in a bedroom occupied by the accused, or the evidence of trafficking occurring from a location under one’s control: R v Sparling, [1988] OJ No 107 (Ont HC) at 6, aff’d [1988] OJ No 1877.

[33] In R v Nguyen, 2009 ABQB 234, after reviewing the law of constructive possession of drugs for the purpose of trafficking and the role of circumstantial evidence in establishing possession, Graesser J stated at para 65: These cases establish a number of basic principles applicable to constructive possession:

1. This is a very fact specific area.

2. Constructive possession under s. 4(3) of the Criminal Code can be and often is established by circumstantial evidence.

3. The inferences to be drawn from the circumstantial evidence must be reasonable.

4. An inference drawn which establishes an essential element of an offence must be the only reasonable inference that can be drawn.

5. The trier of fact must look at the totality of the evidence.

6. Constructive possession requires knowledge and control.

7. Control in the context of constructive possession means consent with the power to affect the location of the item.

8. Occupancy can be evidence of possession

[34] Most recently the Alberta Court of Appeal reviewed the law of possession in R v Miller, 2023 ABCA 266, at para 23:

The trial judge correctly set out the law of possession. Possession, in this case, was constructive possession, which required proof that the appellant (1) had knowledge of the object, (2) knowingly put or kept the object in a particular place, whether or not that place belonged to her, and (3) intended to have the object in that place for her use or benefit or that of another person: R v Morelli, 2010 SCC 8 at para 17. The Crown must establish “knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed”: R v Pham, (2005), 2005 CanLII 44671 (ON CA), 77 OR (3d) 401 (CA) at para 15, 203 CCC (3d) 326, aff’d 2006 SCC 26.

[20] In this matter I cannot conclude Mr. Fairweather had knowledge and control of the subject drugs, as being the only reasonable inference that can be drawn. Fingerprinting of the bags of drugs was performed by the police and no fingerprints were obtained. No DNA testing was performed. The drugs were not “in plain sight”. Nor was the BB gun.

[21] It is not enough for me to say Mr. Fairweather probably had knowledge and control. It must be proven beyond a reasonable doubt.

[22] Accordingly, I acquitted Mr. Fairweather of all charges.