The Defence Toolkit – February 3, 2024 “Stays for Multiple Charter Violations”

This week’s top three summaries: R v Brunelle, 2024 SCC 3: 24(1) #stay, R v Charles, 2024 SKCA 8: s.8 #warrants, and R v EDJ-C, 2024 ONCA 48: #stereotypes of sex

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R v Brunelle, 2024 SCC 3

[January 26, 2024] Charter s.24(1) Stay for Abuse of Process: Accumulation of Other Charter Infractions [Reasons by O'Bonsawin J. with Wagner C.J., and Karakatsanis, Martin, Kasirer and Jamal JJ. concurring, separate concurring reasons by Rowe J.]

AUTHOR’S NOTE: An accumulation of separate Charter violations across a number of accused in a prosecution may signal that Charter rights played minimal or no role in a large investigation.  This is an unacceptable negligence of duty among the officers in charge. This case gives defence counsel the tool to bring this form organized Charter violation of before the courts with an effective remedy that may give the police authorities more pause before failing to create effective systems to protect Charter rights. This case expands the ability to argue the violations of Charter rights of others so that the remedy of a stay of proceedings can be obtained. The connection analysis of s. 24(2) is not required. All that needs to occur is some taint of misconduct affected the proceedings against an accused. The s.8/10(b) aspects of this case are often litigated in the lower courts. Large scale arrests or arrests coupled with search warrant executions often result in s.10(b) violations because police intentionally or negligently prevent access to counsel until the warrants are executed. This practice may now result in severe repercussions to the cases that police base on this kind of process. 

I. Overview

[1] The courts have a duty to protect the integrity of the justice system by dissociating themselves from state conduct that constitutes an abuse of the judicial process. This type of abusive conduct may take all sorts of forms. In this case, the alleged abuse of process is unusual in that it results from an accumulation of infringements of the rights guaranteed by ss. 8 and 10(b) of the Canadian Charter of Rights and Freedoms, infringements of which several but not all of the 31 appellants were the victims. These infringements allegedly occurred in the course of a large-scale police investigation and operation known as [TRANSLATION] “Project Nandou” that led to the arrest of the 31 appellants.

[2] The unusual nature of the alleged abuse of process raises two main questions. The first relates to the standing of the appellants who, for one reason or another, were not the victims of any of the infringements constituting the abuse or of any breach of trial fairness. In the absence of any personal prejudice, it must be asked whether these appellants were entitled to apply for a remedy under s. 24(1) of the Charter.

[3] The Superior Court answered this question in the affirmative and, after finding that there had been an abuse of process in the residual category under s. 7 of the Charter, entered a stay of proceedings for all of the appellants under s. 24(1). On appeal, the Quebec Court of Appeal ordered a new trial for all of the appellants on the ground that the Superior Court had failed to ascertain whether each of them had standing to obtain a stay of proceedings. The Court of Appeal was of the view that if the Superior Court had done so, it would have concluded that some appellants did not have standing to obtain a remedy under s. 24(1).

[4] The Court of Appeal was also of the view that ascertaining the appellants’ standing required the Superior Court to determine whether each appellant’s right under s. 10(b) of the Charter had been infringed, which it had not done. Moreover, standing had to be ascertained before the Superior Court considered whether there had been an abuse of process in the residual category under s. 7. This layering of analytical frameworks raises the second main question in this appeal: What approach should a court take in determining whether there has been an abuse of process in the residual category that, while falling under s. 7 of the Charter, nonetheless results from an accumulation of infringements of other Charter rights? Indeed, what needs to be considered is how to reconcile the relevant frameworks, that is, the s. 7 framework and the frameworks for ss. 8 and 10(b) of the Charter.

[5] For the reasons that follow, I would dismiss the appeal, partly for the reasons given by the Court of Appeal. Unlike that court, I am of the view that all of the appellants have standing to apply for a remedy under s. 24(1) of the Charter even though some of them were not the victims of any of the infringements constituting the alleged abuse of process or of any breach of trial fairness....

II. Factual Background

[6] The police operation at the centre of this appeal arose out of an investigation known as “Project Nandou” that began in November 2014 in the districts of Trois-Rivières, Québec and Chicoutimi. The investigation concerned allegations of organized trafficking in narcotics, mainly cannabis.

[8] A large-scale police operation was planned. More than 250 police officers were to take part in it. A preparatory meeting, led by Detective Toussaint, was organized to arrange how the operation would unfold. During that meeting, the detective reiterated the importance of respecting the right of those arrested to retain and instruct counsel without delay as guaranteed by s. 10(b) of the Charter. However, he gave no indication of when the exercise of that right should be facilitated. He said he had assumed that the arresting officers knew the rules and would know when to do so.

[9] The operation got under way the morning of March 31, 2016, shortly before 7:00 a.m. The 31 appellants were almost all arrested at their residences in the first few minutes of the operation. The others were arrested at various locations later the same day or during the days that followed.

[10] All of the appellants acknowledge that they were informed of their right to retain and instruct counsel without delay at the time they were arrested. However, the evidence shows that they did not all respond in the same way: many indicated a desire to exercise their right as soon as they were informed of it, some did not ask to exercise their right until they were at the police station, and the others said that they did not wish to retain and instruct counsel or that they had already done so.

[11] In the end, out of the appellants who were arrested the morning of March 31, 2016, and who indicated a desire to immediately exercise their right to retain and instruct counsel without delay, only one was given an opportunity to do so while in the police vehicle. The others had to wait until they arrived at the police station. The time between being arrested and being given an opportunity to contact counsel ranged from 23 minutes to 1 hour and 6 minutes, depending on the case. No one was questioned during that time. It should also be noted that one of the appellants arrested later in the day or during the days that followed surrendered himself to the authorities at the courthouse while accompanied by his lawyer and that another of them was arrested at the airport, where he retained and instructed counsel.

[12] In the course of the Project Nandou investigation, the police obtained a number of warrants under the Criminal Code, R.S.C. 1985, c. C-46, and the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Most of the warrants were authorized in the district of Trois-Rivières, but some were executed in another judicial district without being endorsed in that district.

[13] Forty-four of the warrants obtained were general warrants authorized under s. 487.01 of the Criminal Code, and 40 of them required the police to give notice of a covert search to the persons concerned before the date specified in the warrant. Twenty of those warrants were executed, but no notice was given for any of them by the specified date.

[14] Following a preliminary inquiry, the 31 appellants were ordered to stand trial and later divided into 4 different groups for separate trials. On March 16, 2018, the seven appellants in group 1, who were to be tried first, filed a motion for a stay of proceedings and for the exclusion of evidence with the Superior Court. The motion contained several allegations relating to the police investigation and operation that had led to them being arrested and charged, three of which remain relevant in this appeal:

(i) failure to facilitate the requested access to counsel at the first reasonably available opportunity during the police operation on March 31, 2016, which allegedly resulted in the infringement of the right to retain and instruct counsel without delay guaranteed by s. 10(b) of the Charter;

(ii) failure to give notice of a covert search within the allotted time, which allegedly resulted in the infringement of the right to be secure against unreasonable search or seizure guaranteed by s. 8 of the Charter;

(iii) execution of search warrants outside the judicial district of the authorizing justices without the warrants being endorsed within the meaning of the former s. 487(2) of the Criminal Code, which also allegedly resulted in the infringement of the right to be secure against unreasonable search or seizure guaranteed by s. 8 of the Charter.

[15] During the hearing on their motion, the appellants in group 1 alleged that the accumulation of these infringements, some of them planned and intended by the police, reflected a situation of blatant disregard for their rights, met the threshold for establishing abuse of process and left the court with no choice but to stay the proceedings against each of them. That being said, the appellants did not focus on the breaches of trial fairness which would have resulted from the infringements, and they acknowledged that some of the infringements affected only part of the group and could not justify a stay of proceedings on their own.

IV. Issues

[26] The resolution of the appeal requires an answer to the following four questions:

A. Did the appellants all have standing to apply for a remedy under s. 24(1) of the Charter?

B. Did the Superior Court judge err in finding that there had been an abuse of process in the residual category?

C. Did the Superior Court judge err in entering a stay of proceedings for all of the appellants?

In my view, the four questions must be answered in the affirmative.

V. Analysis

[27] The law on abuse of process is well settled. The “key point” is that abuse of process “refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system” (R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 50). As the preceding passage suggests, two types of state conduct meet the threshold for establishing abuse of process: conduct that compromises trial fairness (“main category”) and conduct that, without necessarily threatening the fairness of the accused’s trial, nevertheless undermines the integrity of the justice system (“residual category”) (Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 89; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 55; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 36; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31; see also Brind’Amour v. R., 2014 QCCA 33, at para. 53).

[28] While there is no actual “right against abuse of process” in the Charter, different guarantees will be engaged depending on the circumstances (R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 73). Abuse of process in the main category engages the Charter provisions aimed primarily at protecting trial fairness for accused persons, namely ss. 8 to 14, as well as the principles of fundamental justice set out in s. 7. Abuse of process in the residual category, on the other hand, engages only the principles of fundamental justice in s. 7, which protect accused persons from any state conduct that, while not caught by ss. 8 to 14, is nevertheless unfair or vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system (O’Connor, at para. 73; Tobiass, at para. 89; Regan, at para. 50; Nixon, at para. 41; Babos, at para. 31).

[29] When abuse of process is found in either category and a Charter guarantee has been infringed, s. 24(1) of the Charter gives a court of competent jurisdiction the power to grant “such remedy as [it] considers appropriate and just in the circumstances”. A wide range of remedies is available to the court (see, e.g., O’Connor, at para. 77). However, a stay of proceedings is by far the remedy most sought by victims of abuse of process. Since it has been characterized as the “ultimate remedy” (Tobiass, at para. 86), a stay of proceedings will be ordered only where the situation meets the high threshold of being one of the “clearest of cases” (O’Connor, at para. 69). This requires three conditions to be met:

(1) there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54; Babos, at para. 32);

(2) there must be no alternative remedy capable of redressing the prejudice (Regan, at para. 54; Babos, at para. 32);

(3) where there is still uncertainty over whether a stay of proceedings is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (Regan, at para. 57; Babos, at para. 32).

[30] This legal framework has been refined by this Court over a period of several decades and has been applied in a variety of circumstances. Even so, this is the first time an appeal to the Court has raised the question of how the law on abuse of process in the residual category applies to a group of accused persons, all of whom apply for a stay of proceedings on the ground that an accumulation of infringements of Charter rights, of which several but not all of them were the victims, causes prejudice to the integrity of the justice system.

[31] Indeed, all of the appellants applied for a stay of proceedings under s. 24(1) of the Charter on the basis that the police investigation and operation that led to the court proceedings against them were vitiated by an abuse of process in the residual category. Specifically, they alleged that an accumulation of infringements of their constitutional rights under ss. 8 and 10(b) of the Charter met the threshold for establishing an abuse of process in the residual category for all of them, even though several of them were not the victims of any of these infringements or of any breach of trial fairness. This type of allegation raises two main questions.

[32] The first question, focused on by the Crown and the Court of Appeal, relates to the standing of the appellants whose rights under ss. 8 and 10(b) of the Charter were not infringed and who were not the victims of any breach of trial fairness. In the absence of any personal prejudice, it must be asked whether these persons have standing to apply for a remedy under s. 24(1) of the Charter.

[33] The second question relates to the analytical framework that the Superior Court judge had to apply in determining whether there had been an abuse of process in the residual category that, while falling under s. 7 of the Charter, nonetheless resulted from an accumulation of infringements of ss. 8 and 10(b). When several provisions of the Charter are invoked together, what needs to be considered is how to reconcile the relevant frameworks, that is, the s. 7 framework and the frameworks for ss. 8 and 10(b) of the Charter. After this question has been answered, it will then have to be determined whether the Superior Court judge correctly applied the proper framework before finding that there had been an abuse of process in the residual category.

A. Did the Appellants All Have Standing to Apply for a Remedy Under Section 24(1) of the Charter?

[38] For the reasons that follow, I conclude that all of the appellants had standing to apply for a stay of proceedings under s. 24(1). An accused has standing to apply for a remedy under s. 24(1) where they allege that one of their Charter rights has been infringed. The s. 7 right is one of these rights. It protects accused persons from abuse of process in the residual category. This type of abuse of process occurs where state conduct is unfair or vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system, regardless of its impact on the accused’s other constitutional rights or on the fairness of their trial.

[39] However, this does not mean that every accused will have standing to apply for a remedy under s. 24(1) of the Charter on the basis of any abusive state conduct, no matter what the causal connection between that conduct and the proceedings against them. To have standing, the accused must allege that the abusive conduct tainted the police investigation or operation targeting them or the court proceedings against them. In this case, each of the appellants meets this requirement, since all of them assert that they were directly targeted by the police investigation and operation that resulted in the alleged abusive conduct.

(2) Standing Under Section 24(1) of the Charter Is Accorded to Accused Persons Alleging That Their Own Rights Have Been Infringed

[43] The starting point in determining whether a person has standing to apply for a remedy under s.
24(1) of the Charter is the text of this provision, which reads as follows:

24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[44] The Court has interpreted this text and has found it to mean that a person has standing to apply for a remedy under s. 24(1) where the person is “alleging a violation of their own constitutional rights” (R. v. Albashir, 2021 SCC 48, at para. 33; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 61; see also R. v. Edwards, [1996] 1 S.C.R. 128, at para. 55; R. v. Rahey, [1987] 1 S.C.R. 588, at p. 619; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 313). In other words, a person’s standing will be considered sufficient only if they are alleging an infringement of any of their Charter rights.

[45]....This distinction was eloquently clarified by Scheibel J. in R.L. Crain Inc. v. Couture (1983), 6 D.L.R. (4th) 478 (Sask. Q.B.):

. . . the establishment of a violation of rights is prerequisite to the obtaining of a remedy. It is not a prerequisite to the commencing of a s. 24(1) application. There should be no doubt that in order to bring a s. 24(1) application it is necessary only that the applicant allege that his rights have been infringed or denied. [Emphasis added; p. 517.]

[46] Indeed, the focus when it comes to standing is on the allegations made by the person seeking a remedy under s. 24(1) of the Charter. These allegations must set out the essential elements that will have to be shown in order to establish an infringement of at least one of the applicant’s Charter rights. If they do so, the applicant will have standing to apply for a remedy under s. 24(1).

[48] All of the appellants alleged an infringement of their right under s. 7 of the Charter on the basis of an abuse of process in the residual category (A.R., vol. XI, at pp. 101-2). It is true that they argued that the abuse resulted from an accumulation of infringements of the right to be secure against unreasonable search or seizure and the right to retain and instruct counsel without delay (A.R., vol. I, at pp. 150, 154-55 and 158; see also A.R., vol. X, at pp. 55-56). It is also true that, on the face of the record, some of the appellants could not reasonably allege that they had been the victims of either of these infringements, or possibly even both. However, this did not prevent any appellant from having standing to apply to a court for a stay of proceedings under s. 24(1) of the Charter and to obtain a judgment from the court on the merits of their application if they had duly alleged all the essential elements that had to be shown in order to establish an infringement of their s. 7 right on the basis of an abuse of process in the residual category.

[49]....As will be explained more fully below, this Court has repeatedly recognized that an infringement of s. 7 of the Charter may result solely from the fact that state conduct causes prejudice to the integrity of the justice system, irrespective of whether the conduct had an impact on the other rights of the person alleging it or on the fairness of their trial.

(3) Section 7 of the Charter Protects Accused Persons From State Conduct That Undermines the Integrity of the Justice System, Regardless of Whether There Is Personal Prejudice

[50] Indeed, under the residual category of abuse of process, “prejudice . . . is better conceptualized as an act tending to undermine society’s expectations of fairness in the administration of justice” (Nixon, at para. 41). As L’Heureux-Dubé J. noted in O’Connor, the residual category of abuse of process

does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process. [para. 73]

[51] In other words, impairment of the accused’s other rights or of the fairness of their trial, “although relevant, is not determinative” (Nixon, at para. 41), because the type of prejudice addressed by the principles of fundamental justice in s. 7 goes well beyond personal prejudice (O’Connor, at para. 64). All that must be found is that there is state conduct with repercussions on a larger scale, that is, conduct that causes prejudice to the integrity of the justice system in the eyes of society. [Emphasis by PJM]

[53] However, the fact remains that an accused’s s. 7 right may be infringed as a result of state conduct that meets the threshold for establishing an abuse of process in the residual category without the accused having suffered any personal prejudice, such as another of their constitutional rights being impaired or the fairness of their trial being compromised.

[54] This does not mean that every accused will have standing to apply for a remedy under s. 24(1) on the basis of any state conduct that undermines the integrity of the justice system, regardless of the causal connection between the abusive conduct and the proceedings against them. For a court to find that an accused’s right under s. 7 of the Charter has been infringed as a result of an abuse of process in the residual category, there must be a “sufficient causal connection” between the abusive conduct and the proceedings against the accused (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 75-78). It is this connection to which I now turn.

(4) The Proceedings Against the Accused Must Have Been Tainted by the Abusive State Conduct

[55] In my opinion, the causal connection between, on the one hand, the state conduct that undermines the integrity of the justice system and, on the other, the engagement of the accused’s interests protected by s. 7 of the Charter, that is, life, liberty and security of the person, will be considered sufficient where the criminal proceedings against the accused are “tainted” (in French, entachées) by the abusive conduct (see R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667).

[56] The proceedings against an accused will be regarded as tainted where abusive conduct occurred in the course of the proceedings or in the course of a police investigation or operation that targeted the accused or otherwise served to gather evidence to prove that the accused was guilty of the charge or charges laid against them. Obviously, the abusive conduct need not have had an impact on the accused’s other Charter rights or on the fairness of their trial in order to meet this requirement. It need only have occurred in the course of the investigation or police operation targeting the accused or the criminal proceedings against them. In the absence of this connection, I have difficulty seeing how the accused’s life, liberty and security of the person are engaged by the abusive conduct.

[59] This can be confirmed simply by looking at the first condition, which reflects the fact that a stay of proceedings is a prospective remedy (Tobiass, at para. 91; Regan, at para. 54). This condition is aimed at preventing the perpetuation of prejudice to the integrity of the justice system that, if left alone, will continue to trouble the parties and the community as a whole in the future (O’Connor, at para. 75; Tobiass, at para. 91; Regan, at para. 54; Nixon, at para. 42; Babos, at para. 35). To this end, the court must ask whether “proceeding in light of the impugned conduct would do further harm to the integrity of the justice system” (Babos, at para. 38). This question cannot be divorced from the specific context of the court proceedings against each accused, since those are the proceedings for which a stay is sought (Paciocco, at p. 341). In other words, to meet the first condition for establishing that a stay of proceedings is an appropriate remedy, the accused must satisfy the court that carrying on with the proceedings against them would in itself do further harm to the integrity of the justice system.

[60] But it is only where the proceedings against an accused are tainted by abusive conduct that the accused can argue that refusing to stay the proceedings will manifest, perpetuate or aggravate prejudice to the integrity of the justice system, as required by s. 24(1) of the Charter. Conversely, where the proceedings against the accused are not first tainted by abusive state conduct, the accused’s application for a stay of proceedings under s. 24(1) on the basis of the abuse will have no chance of success. For this reason, it is entirely logical and desirable that such an accused not have standing to apply for a stay of proceedings under s. 24(1) on the basis of that conduct.

[62] Babos provides another illustration. In that case, one of the three forms of misconduct that Mr. Babos alleged against the Crown in support of his application for a stay of proceedings under s. 24(1) of the Charter for abuse of process in the residual category was a Crown attorney’s use of improper means to obtain the medical records of his co-accused, Mr. Piccirilli, from the detention centre where the latter was being held pending trial. Even though that conduct was not directed at Mr. Babos and did not affect the proceedings against him in any way, it occurred during his criminal proceedings, and no one questioned the fact that, like Mr. Piccirilli, he had standing to allege it in support of his application for a stay of proceedings.

[63] It follows that one of the essential elements that must be shown for an accused to establish that their right under s. 7 of the Charter has been infringed as a result of an abuse of process in the residual category is that the abusive conduct tainted the proceedings against them. An accused who does not allege expressly or implicitly that the abusive state conduct tainted the proceedings against them will therefore not have standing to apply for a remedy under s. 24(1) on the basis of such conduct. [Emphasis by PJM]

(5) Application to the Facts

[64] In this case, all of the appellants alleged that the police conduct they characterized as abusive had tainted the proceedings against them. Indeed, all of the misconduct alleged by each of them — (i) failure to facilitate the requested access to counsel at the first reasonably available opportunity during the police operation on March 31, 2016, (ii) failure to give notice to the persons against whom a covert search warrant was executed, contrary to the terms of the warrant, and (iii) failure to have the warrants endorsed before they were executed outside the district of Trois-Rivières — took place in the course of the police investigation and operation known as Project Nandou, which directly targeted all of the appellants and served to gather evidence to prove their guilt.

B. Did the Superior Court Judge Err in Finding That There Had Been an Abuse of Process in the Residual Category?

(1) The Analytical Framework That Applies Where Abuse of Process in the Residual Category Results From the Infringement of Other Charter Rights

[67] Sometimes, the Charter’s specific procedural guarantees will be the best fit for remedying abuse of process. For example, where an accused alleges that misconduct by the Crown has prejudiced their ability to have a trial within a reasonable time, the application should be dealt with by applying the framework for s. 11(b) of the Charter (O’Connor, at para. 73).

[68] Where none of the specific procedural guarantees addresses the alleged misconduct, this Court has established that s. 7 of the Charter acts as a safeguard and provides accused persons with additional protection from state conduct that affects trial fairness in other ways and from “residual” conduct that otherwise undermines the integrity of the justice system (Nixon, at para. 36). In this sense, s. 7 plays a role complementary to that of ss. 8 to 14 by providing residual protection against abuse of process that goes beyond the protection offered by the specific guarantees in ss. 8 to 14. This role has also been recognized many times by the Court outside the abuse of process context (R. v. J.J., 2022 SCC 28, at para. 113; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 24; R. v. White, [1999] 2 S.C.R. 417, at para. 44; R. v. Mills, [1999] 3 S.C.R. 668, at paras. 72 and 76; R. v. Pearson, [1992] 3 S.C.R. 665, at p. 688; R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 603; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at pp. 537-38).

[69] It is therefore not uncommon for s. 7 of the Charter to be invoked at the same time as one or more other procedural guarantees. This will be the case, for example, where alleged abusive state conduct involves more than just the infringement of a procedural guarantee set out in ss. 8 to 14. Indeed, abusive state conduct may take all sorts of forms. This Court has also specifically recognized that there may be cases in which “the nature and number of incidents, though individually unworthy of a stay, will require one when considered together” (Babos, at para. 73). This statement applies equally at the stage of determining whether abuse of process has occurred. Abuse of process in the residual category can thus result from an accumulation of incidents or state misconduct. Furthermore, there is no reason why such incidents or misconduct cannot take the form of infringements of a procedural Charter guarantee and, consequently, why the alleged abuse of process cannot result from an accumulation of infringements of one or more guarantees.

[70]... the Court preferred to find as follows:

The appropriate methodology for assessing multiple Charter breaches alleged by the accused may depend on the factual record, the nature of the Charter rights at play, and how they intersect. This Court has repeatedly affirmed that the methodology for assessing multiple alleged Charter breaches is highly context- and fact-specific . . . .

(J.J., at para. 115)

[71] It bears repeating that, in the abuse of process context, both s. 7 and ss. 8 to 14 of the Charter are intended to protect individuals from conduct that is unfair or vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system (O’Connor, at paras. 64 and 73). It follows that the frameworks for analyzing these provisions can coexist. Indeed, it is entirely appropriate to use the framework for abuse of process in the residual category developed for the purposes of s. 7 to analyze any accumulation of infringements of one or more procedural guarantees in order to determine whether the infringements as a whole meet the threshold for establishing abuse of process, that is, prejudice to the integrity of the justice system.

[72] Of course, the framework applicable to each of these procedural guarantees will remain relevant in determining whether the infringements making up the accumulation of infringements actually occurred. In fact, this determination will logically have to be made before the court decides whether there has been an abuse of process in the residual category. In this way, the frameworks coexist, those for the procedural guarantees being intertwined with the s. 7 framework.

[73] Before turning to the framework applicable in this case, I want to reiterate that proof of one or more infringements is not necessary to establish an abuse of process in the residual category, because the focus with this type of abuse is on conduct that undermines the integrity of the justice system, regardless of whether it breaches other Charter rights.

(2) The Framework Applicable in This Case

[74] In this case, the abuse of process alleged by the appellants results from an accumulation of infringements of Charter rights, specifically the right to be secure against unreasonable search or seizure and the right to retain and instruct counsel without delay, that reflects a situation of blatant disregard for their rights by the police....

....Further, they acknowledge that the infringements in question, considered individually, cannot justify the remedy they seek, namely a stay of the proceedings against them (Sup. Ct. reasons (2018), at paras. 5, 133 and 150). Rather, they allege that the accumulation of infringements and the police disregard for their rights that it reflects caused prejudice to the integrity of the justice system.

[75] In these circumstances, the framework developed for the purposes of s. 7 of the Charter for analyzing abuse of process in the residual category should be adopted to determine whether the alleged infringements as a whole meet the threshold for establishing abuse of process. However, this exercise makes it necessary to apply the framework for each of the provisions at issue, ss. 8 and 10(b), to determine whether the allegations of infringements are well founded....

[77] Indeed, the Court has previously recognized the relevance of these two factors under the framework for s. 24(2) of the Charter at the stage of determining the seriousness of the Charter-infringing conduct (R. v. Harrison 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 22 and 25; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 75; R. v. McColman, 2023 SCC 8, at para. 58). It is true that s. 24(2) is analytically distinct from ss. 8 and 10(b) in the sense that it comes into play only at the remedy stage, after an infringement has been found. However, the fact remains that the primary concern under s. 24(2), namely public confidence in the administration of justice (Grant, at paras. 67-68), intersects with the interest protected by s. 7 when it comes to abuse of process in the residual category, namely the integrity of the justice system (O’Connor, at para. 61).

(3) Application to the Facts

(a) Right to Retain and Instruct Counsel Without Delay

(i) Applicable Law

[80] Section 10(b) of the Charter provides that everyone has the right on arrest or detention “to retain and instruct counsel without delay and to be informed of that right”. In R. v. Bartle, [1994] 3 S.C.R. 173, Lamer C.J. summarized the three duties that this provision imposes on the police:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

(p. 192, citing R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1241-42; R. v. Evans, [1991] 1 S.C.R. 869, at p. 890; R. v. Brydges, [1990] 1 S.C.R. 190, at pp. 203-4.)

[81] The purpose of these three duties is to protect any person whose detention puts them in a situation of vulnerability relative to the state (R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2 and 40-41). While under the control of the police, the person suffers a deprivation of liberty and is at risk of involuntary self-incrimination (R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 22, citing Bartle, at p. 191).

[82] Although the first duty is triggered immediately upon detention (Suberu, at para. 41), the second and third duties arise only if the detainee indicates a desire to exercise their right to counsel. Where this is the case, the police are under a constitutional obligation to facilitate access to counsel at the first reasonably available opportunity and to refrain from eliciting evidence from the detainee until that time (Manninen, at pp. 1241-42; Taylor, at paras. 24 and 26).

[83] Whether the delay between the time a detainee indicates a desire to exercise their right and the time the detainee exercises it is reasonable is a factual and highly contextual inquiry (Taylor, at para. 24). Barriers to access or “exceptional circumstances” that justify briefly suspending the exercise of the right cannot be assumed; they must be proved (para. 33; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 74; R. v. Strachan, [1988] 2 S.C.R. 980, at pp. 998-99). The burden is always on the Crown to prove the circumstances, exceptional or not, that make the delay reasonable (Taylor, at para. 24).

[84] Before applying these principles to the facts, I think it necessary to reiterate that the law does not as yet impose a specific duty on police officers to provide their own telephones to detainees or to have inexpensive devices on hand so that detainees can exercise their right to retain and instruct counsel without delay (Taylor, at paras. 27-28).

(ii) Application to the Facts

[85] The Superior Court judge held [TRANSLATION] “that the right to counsel and the right to be informed of that right were infringed” (Sup. Ct. reasons (2018), at para. 85) for all of the appellants in group 1 because the evidence revealed a “systematic” police practice of postponing the exercise by these persons of their right to retain and instruct counsel without delay until they were taken to the police station, without first considering the particular circumstances of each arrest (para. 75).

[88] For the reasons that follow, I am of the view that the Superior Court judge erred in law in finding that the right to retain and instruct counsel without delay of all of the appellants in group 1 had been infringed.

[89] My conclusion is deferential to the findings of fact made by the Superior Court judge. He found that four of the seven appellants in group 1 expressed a desire to immediately exercise their right to retain and instruct counsel without delay but were told that the right would be exercised at the police station, even though the police did not first consider whether, in the circumstances, the right could be exercised immediately (Sup. Ct. reasons (2018), at paras. 49-54, 58-59 and 68). When asked why one of the appellants was not given an opportunity to retain and instruct counsel at the scene, the arresting officer replied as follows:

[TRANSLATION] . . . that’s not the normal practice. That’s not the way it’s normally done. Normally, we go directly to headquarters and then have the person contact counsel within, you know, a reasonable time, and directly at headquarters, not at the scene with everyone who’s around, as a matter of confidentiality too. [Emphasis added.]

(A.R., vol. IV, at p. 29; see also Sup. Ct. reasons (2018), at paras. 54 and 57.)

[90] In addition, as the Superior Court judge noted, the detective in charge of the “arrest” component during the preparatory meeting for the officers who were to take part in the police operation on March 31, 2016, had in fact been involved approximately two months earlier in an arrest in respect of which his colleague had been criticized for replying [TRANSLATION] “in a somewhat automatic manner”, to a detainee who had expressed his intention to exercise his right to retain and instruct counsel without delay, that the right would be exercised at the police station (para. 70, quoting R. v. Martel, C.Q. Trois-Rivières, Nos. 400-01-064968-118, 400-01-064969-116, 400-01-064970-114, January 27, 2016, reproduced in A.R., vol. III, at p. 1).

[91] In these circumstances, the Superior Court judge could find that there was a police practice amounting to a “reverse onus” (Sup. Ct. reasons (2018), at para. 84) whereby the police officers refused to consider the immediate exercise of the right to counsel unless the detainee specifically requested it. That finding resulted from the Superior Court judge’s exclusive assessment of the facts and is entitled to deference.

[92] However, I am of the view that the existence of that practice, without more, did not permit the Superior Court judge to infer, as he did, that the right of the seven appellants in group 1 to retain and instruct counsel without delay had been infringed.

[93] First of all, one of the seven appellants in group 1, Mr. Chounlamountry, was given an opportunity to exercise his right to counsel at the scene and declined to do so (Sup. Ct. reasons (2018), at para. 55), while two others, Mr. Girard and Mr. Mailhot, did not ask to exercise this right at the scene (paras. 56 and 62). In the case of Mr. Girard, the Superior Court judge found from the evidence that he had said he [TRANSLATION] “would want” to exercise his right to counsel later (para. 56). It can therefore be seen simply from reading the Superior Court judge’s findings that the duty to implement the right to counsel was not even triggered for at least three of the appellants in group 1.

[94] Moreover, although I agree with the Superior Court judge that the practice he identified is improper, this does not mean that it results in an automatic breach of any of the three duties arising from the right to counsel guaranteed by s. 10(b) of the Charter.

[95] This Court has already recognized that, as a general rule, the police may not assume in advance that it will be impracticable for them to facilitate access to counsel. On the contrary, they must be mindful of the particular circumstances of the detention and take proactive steps to turn the right to counsel into access to counsel (Taylor, at para. 33). This is the case because the detainee’s ability to exercise their right depends entirely on the police (para. 25). [Emphasis by PJM]

[96] That being said, the fact that a police officer assumes in advance that it will be reasonable to delay the implementation of the right to counsel, without regard to the circumstances of the detention, will not in itself entail an infringement of this right. After all, the central question remains whether the delay was reasonable having regard to all of the circumstances, whether those circumstances were considered by the police or not. However, the fact that the police assume the delay will be reasonable will make it much more difficult for the Crown to show that it was in fact reasonable.

[97] Taylor provides an illustration of this principle. In that case, this Court had to determine whether the failure of two police officers to facilitate Mr. Taylor’s access to counsel during the 20 to 30 minutes between his admission to hospital and the time a first set of blood samples was taken was an infringement of his right to retain and instruct counsel without delay....

[98] Yet one officer had testified that because of the hospital setting Mr. Taylor was in, there was “absolutely no way” that he could have contacted counsel in a confidential manner (para. 30). However, the Court gave little weight to her testimony, for the following reason:

. . . this retrospective imputation of impracticability is of limited relevance given her acknowledgement that she was only there to track the blood samples and whether such access was possible was not part of her duties there. As a result, she too made no inquiries of the hospital staff. [para. 30]

[99] Since there was no evidence justifying the failure, this Court came to the conclusion that Mr. Taylor’s right to counsel under s. 10(b) of the Charter had been infringed before the first set of blood samples was taken (para. 37).

[100] It follows from the foregoing that the fact that the police postpone the exercise of a detainee’s right to retain and instruct counsel without delay until the detainee has been taken to the police station, without first considering the particular circumstances of the arrest, does not in itself entail an infringement of the right guaranteed by s. 10(b) of the Charter. The central question remains whether the delay in facilitating access to counsel (in Taylor, it was a failure to facilitate such access (para. 35)) was reasonable in the circumstances. This is a question of fact that must be decided on the basis of the evidence in the record (paras. 24 and 32-33).

[105] In light of the foregoing, I conclude that the Superior Court judge erred in law in finding that the allegations that the right to retain and instruct counsel without delay had been infringed were well founded with respect to all of the appellants in group 1 solely on the basis of the police practice of systematically postponing the exercise of this right without first considering the particular circumstances of each arrest. This error explains why the Superior Court judge held that the right of three appellants to retain and instruct counsel without delay had been infringed even though they had either already exercised their right or deferred its exercise after being duly informed of it. This error also explains why the judge failed to analyze the reasonableness of the delay between the time the other four appellants in group 1 indicated a desire to exercise their right to counsel and the time they were able to exercise it.

[106] Since the appellants decided to base their abuse of process claim on an accumulation of infringements, including the infringement of the right to retain and instruct counsel without delay, the Superior Court judge had to correctly apply the s. 10(b) framework in relation to each of them and draw the necessary conclusions, which he did not do.

[107] Of course, the improper police practice identified earlier itself constitutes state misconduct that is relevant in determining whether there was an abuse of process in the residual category. However, at this stage, it is impossible to say whether the Superior Court judge considered the mere existence of this misconduct to be as serious as the accumulation of infringements of the right to retain and instruct counsel without delay that he thought he had identified. After all, the time between being arrested and being given an opportunity to contact counsel ranged from 23 minutes to 1 hour and 6 minutes, depending on the case, and the impact of the police practice on trial fairness was uncertain at best (Sup. Ct. reasons (2018), at paras. 189-91). In these circumstances, a case-by-case determination of whether the right guaranteed by s. 10(b) of the Charter had been infringed took on greater importance in ascertaining the seriousness of the improper police practice and, ultimately, the existence of an abuse of process in the residual category.

[108] The error of law made by the Superior Court judge dictates the outcome of the appeal for the appellants in group 1, because the judge was of the view that the infringements of the right to retain and instruct counsel without delay were the most serious infringements (Sup. Ct. reasons (2018), at para. 184)....

....This is because the Superior Court judge’s conclusion that the right of the appellants in group 1 to retain and instruct counsel without delay had been infringed was an essential underpinning of his ultimate conclusion that their right under s. 7 of the Charter had been infringed as a result of an abuse of process in the residual category. Setting aside the first conclusion therefore amounts to setting aside the second.

(b) Conclusion

[109] In light of the reasons set out above, I conclude, as the Court of Appeal did, that the Superior Court judge erred in holding that the right of all of the appellants in group 1 to retain and instruct counsel without delay had been infringed. Because the infringements of this right were, in his view, the most serious ones, his conclusion that the appellants in group 1 were the victims of an abuse of process in the residual category must be set aside.

[110]... I am of the view that it is in the interests of justice for there to be a new hearing on the motion brought by the appellants in group 1.

C. Did the Superior Court Judge Err in Entering a Stay of Proceedings for All of the Appellants?

[112] A stay of proceedings has been characterized as the “ultimate remedy” (Tobiass, at para. 86) because of its finality:

It is ultimate in the sense that it is final. Charges that are stayed may never be prosecuted; an alleged victim will never get his or her day in court; society will never have the matter resolved by a trier of fact.

(Regan, at para. 53)

[113] For these reasons, and as I noted above, this drastic remedy will be granted only where the situation meets the high threshold of being one of the “clearest of cases” (O’Connor, at para. 69). This requires the following three conditions to be met:

(1) there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54; Babos, at para. 32);

(2) there must be no alternative remedy capable of redressing the prejudice (Regan, at para. 54; Babos, at para. 32);

(3) where there is still uncertainty over whether a stay of proceedings is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (Regan, at para. 57; Babos, at para. 32).

[114] These conditions are cumulative, and none of them is optional. With respect, I am of the view that the Superior Court judge failed to ensure that the second condition was met in this case.

[115] The motion brought by the appellants in group 1 specifically sought an order excluding an entire list of evidence if a stay of proceedings was not obtained for all of them (A.R., vol. I, at pp. 158-59; A.R., vol. XI, at p. 169; A.R., vol. XII, at p. 1; see also A.R., vol. XX, at pp. 18-20).

[116] Yet the Superior Court judge never mentioned this alternative to a stay of proceedings in his analysis at the stage of determining the appropriate remedy (Sup. Ct. reasons (2018), at paras. 178-222). He simply stated that [TRANSLATION] “a stay of proceedings is the appropriate remedy in this case” (para. 217).

[117] This may have been so, but it still had to be explained why a remedy short of a stay of proceedings could not redress the prejudice to the integrity of the justice system that the judge thought he had identified (see, e.g., Brind’Amour, at paras. 102-3).

[118] I would add that this failure to consider lesser remedies is especially significant in a context where several accused persons apply for a remedy under s. 24(1) of the Charter on the basis of the same abuse of process that affected them in different ways. In such circumstances, the court may very well conclude that the remedy that would fully redress the prejudice to the integrity of the justice system caused by the abuse involves individualized orders....

VI. Conclusion

[124] For the foregoing reasons, I would dismiss the appeal. It is appropriate to hold new trials before a different judge, including new hearings on the motions for a stay of proceedings and for the exclusion of evidence.

R v Charles, 2024 SKCA 8

[January 19, 2024] Charter s.8: Informants -  Boilerplate and Paraphrasing  [Reasons by Leurer CJS, with McCreary and Drennan J.A. concurring]

AUTHOR’S NOTE: Protecting confidential informants is a common goal in drafting affidavits for judicial authorizations. However, affiants often go too far to allow appropriate scrutiny by the courts. Here, the failing occurred through the use of exactly the same language for each confidential informant in describing the presence of contraband. This boilerplate usage led the court to conclude they were being paraphrased which in turn meant their reported accounts could not corroborate each other because there was no objective way to test that the officer did not take liberties with the descriptions. This is not an uncommon failing in ITOs and this case is a good one for the defence. 

Leurer C.J.S.

I. INTRODUCTION

[1] The Crown appeals against the acquittal of Justin Charles on various gun and drug-related charges after a trial before a Provincial Court judge.

[2] The verdict was entered after the judge had concluded that two warrants were invalid. The first was to search Mr. Charles’s residence and a motor vehicle for drugs, firearms and ammunition. The second was to search Mr. Charles’s cellphone seized during the execution of the first warrant for the purposes of obtaining evidence relating to the owner of that device and the purchase, sale or distribution of drugs.

[3] Based on the judge’s conclusion that the two warrants were invalid, she found that Mr. Charles’s rights under ss. 8 and 9 of the Charter had been violated by the searches and his concurrent arrest. She also determined that the admission of the evidence uncovered based on the invalid warrants would bring the administration of justice into disrepute. As a result, the judge ordered that the evidence gathered because of the two warrants should be excluded pursuant to s. 24(2) of the Charter: R v Charles, 2023 SKPC 6, 632 CRR (2d) 357 [Voir Dire Decision]. Without this evidence, the Crown had no case against Mr. Charles, and the charges against him were dismissed.

[5] I have concluded that the judge did not err in law in any way that affected the outcome of the Voir Dire Decision. Accordingly, the Crown’s appeal must be dismissed.

II. BACKGROUND

A. The warrants and the Charter application

[6] On January 8, 2021, the Prince Albert Police Service [PAPS] obtained a warrant. It authorized officers to enter Mr. Charles’s residence [Residence], and an identified automobile [Vehicle], to search for firearms, ammunition, methamphetamine and cocaine, described as the “Things” in the warrant. The warrant was granted by a justice of the peace, pursuant to s. 487 of the Criminal Code, based on the Information to Obtain a Search Warrant [ITO] of Constable Matthew Mesenchuk.

[8] As a result of the search, the officers uncovered a rifle, shotgun, starter pistol and various quantities of ammunition. Among the other items the officers found were 8.5 grams of methamphetamine and 7.1 grams of crack cocaine behind a dresser in one of the bedrooms, a functioning scale, unused baggies and an army-green ballistics vest. The officers also seized a cellphone from Mr. Charles’s person [Cellphone]. On August 20, 2021, the PAPS obtained a second warrant, authorizing officers to search for data on the Cellphone that might relate to the sale or distribution of controlled substances.

[9] After the second warrant was executed, Mr. Charles was charged with several drug and weapons offences. The Crown’s case against Mr. Charles rested on the evidence obtained from the execution of the two warrants.

B. The trial

[12] The judge delivered the Voir Dire Decision in advance of the last day of trial. In it she found that “based on the ITO as amplified on review … the issuing justice, acting judicially, could not have properly issued the warrant to search the residence in question” (at para 49). The judge explained that, for this reason, Mr. Charles’s arrest was arbitrary and thus contrary to s. 9 of the Charter:

[50] An unlawful arrest is necessarily arbitrary and violates section 9 of the Charter (see R v Grant, 2009 SCC 32 at para 54 [Grant] and R v Loewen, 2011 SCC 21, [2011] 2 SCR 167). Under section 495 of the Criminal Code, an arrest is not lawful unless the officer deciding to arrest believes on reasonable grounds that the accused has committed an indictable offence. Constable Mesenchuk relied on the same grounds for arresting Mr. Charles as he submitted in the ITO to justify the search warrant. As discussed above, the grounds were insufficient. The arrest was unlawful and violated Mr. Charles’s right to be free from arbitrary detention guaranteed by section 9 of the Charter.

[13] Based on this finding, the judge also determined that the search of the Cellphone was conducted in violation of s. 8 of the Charter:

III. ISSUES

[16] The Crown challenges the judge’s findings that Mr. Charles’s Charter rights were violated and contends that, even if they were, the judge erred in concluding that the admission of the evidence from the two warrants would bring the administration of justice into disrepute. I can accept neither line of attack against the Voir Dire Decision. I will address them separately

IV. ANALYSIS

A. Mr. Charles’s Charter rights were violated

1. The judge identified the correct standard of review

[17] The Crown’s principal argument is that the judge applied the wrong standard in her review of the authorization by the justice of the first warrant. As context for its submissions, the Crown emphasizes that a reviewing judge’s task is to review the grounds in the ITO, not conduct a de novo hearing and should not set a warrant aside simply because they would not have granted it in the first instance. In its factum, the Crown elaborated on this submission by referring to many authorities, including R v Garofoli, [1990] 2 SCR 1421; R v Pires; R v Lising, 2005 SCC 66, [2005] 3 SCR 343; R v Morelli, 2010 SCC 8, [2010] 1 SCR 253; R v Araujo, 2000 SCC 65, [2000] 2 SCR 992; R v Ebanks, 2009 ONCA 851, 249 CCC (3d) 29; R v Campbell, 2011 SCC 32, [2011] 2 SCR 549; R v Vu, 2013 SCC 60, [2013] 3 SCR 657; and R v Sadikov, 2014 ONCA 72, 305 CCC (3d) 421.

[21] The Crown does not challenge the correctness or the sufficiency of the judge’s summary of this law, or her later synopsis of the law surrounding the use of confidential informants, as set out in R v Debot, [1989] 2 SCR 1140, as summarized by this Court in R v McElroy, 2009 SKCA 77, [2009] 8 WWR 243; R v Bissky, 2018 SKCA 102, 369 CCC (3d) 315; and R v Protz, 2020 SKCA 115, 393 CCC (3d) 438. The Crown’s argument reduces to the proposition that, having oriented herself correctly to the applicable legal principles, the judge nonetheless failed to properly apply those principles in her review of the justice’s decision to authorize the warrants.

2. The judge did not conduct a de novo hearing

[22] Notwithstanding that the Crown did not challenge the judge’s statement of the law, it alleges that she misapplied it by subjecting “virtually all of the information in the ITO to a de novo reassessment on an item-by-item basis”. I unreservedly reject the Crown’s contention that the judge erred by examining the detail of the ITO or that she conducted an impermissible de novo hearing.

[23] A reviewing judge must analyze the evidence that was before the authorizing justice to determine “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (Vu at para 16, citing Araujo at para 54). In Morelli, Fish J. accepted that, in the case before him, the “deficiencies of the ITO … must be addressed in some detail before determining whether it could support the issuance of the warrant” (at para 44). [Emphasis by PJM]

[24] As I see it, in this case, the judge did nothing more than engage with the evidence considering the appropriate legal criteria. Rather than being faulted, she is to be commended for the evident care with which she undertook this task. In short, her reasons demonstrate that she applied an appropriate level of deference to the decision of the authorizing justice while reviewing the ITO.

3. The judge did not treat the Debot factors as silos

[25] The Crown also asserts that the judge improperly treated the Debot factors as silos. In this regard, Debot invites consideration of three questions to assist reviewing courts when assessing the reasonableness of a warrantless search, which also apply in the circumstances of a warrantless arrest. (at 1168):

In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

[26] Of course, these three factors govern the grant of a warrant as well: see Bissky at para 27, citing Garofoli at 1456–57; see also James A. Fontana & David Keeshan, The Law of Search and Seizure in Canada, 12th ed (Toronto: LexisNexis, 2021) (QL) at 4(6)(B).

[27] A review of the Voir Dire Decision satisfies me that the judge did not approach the Debot questions as silos nor did she fail to examine the “totality of the circumstances” as that case requires. It is true that she conducted her analysis of the evidence under four headings, the first three of which asked, in turn, “Was the information credible?”, “Was the information compelling?” and “Was the information corroborated?”. However, she considered all this evidence, together with other evidence, such as that relating to Mr. Charles’s criminal record, in a discussion titled “Totality of the Circumstances”. She concluded under that heading as follows:

[48] According to Debot, strengths in one area may overcome weaknesses in another, but weaknesses in all three areas do little to establish the proper grounds. A building may have four support beams, but if they are all weak, the building will collapse. I understand the need not to reveal information that may tend to identify a confidential informant, but the ITO must be specific enough to allow the issuing justice to determine whether the information is credible, compelling, and corroborated or whether it is unbelievable, unreliable, or contradicted. These tips, taken individually or together, are too vague to allow the justice to properly assess the evidence.

[49] In sum, I find that, based on the ITO as amplified on review, but with Appendix A excised, the issuing justice, acting judicially, could not have properly issued the warrant to search the residence in question.

4. The Crown’s arguments require this Court to ignore the judge’s reasons

[29] The Crown also argues that the judge’s misapplication of the applicable standard of review is shown because she improperly “rejected numerous reasonable inferences drawn by the authorizing justice and, on occasion, substituted them with her own”. Broadly, the reasonable inferences the judge is said to have erroneously rejected were that drugs, firearms and ammunition would be found in the Vehicle and at the Residence. I will frame my consideration of this line of argument around the two places that were to be searched.

[30] The judge found that, so far as the warrant authorized the search of the Vehicle, it was “clearly invalid” (at para 26). I see no error in this conclusion. There was no evidence that Mr. Charles owned the Vehicle. He was not seen driving it. As the judge noted, no evidence was placed before her of any kind that justified its search. The Crown did not contend otherwise in this appeal. [Emphasis by PJM]

[31] The existence of reasonable grounds to order the search of the Residence for drugs depended almost exclusively on the information provided by four confidential informants. One of them said nothing about drugs at all. Three of the four informants said that Mr. Charles “sells methamphetamine”. As the judge correctly noted, none of them linked that assertion to the Residence being searched or otherwise afforded evidence that either cocaine or methamphetamine would be found at the Residence. I also did not see sufficient evidence of this connection elsewhere in the record upon which an inference of this conclusion could be reasonably drawn. In these circumstances, I see no error in the judge’s determination that insofar as the warrant authorized a search of the Residence for cocaine and methamphetamine, it was issued without reasonable grounds. [Emphasis by PJM]

[32]....However, as I read the decision, the judge ultimately rejected the warrant to search for firearms at the Residence because of the weakness of the information provided by the confidential informants relating to the presence of weapons at the Residence. I have reached this conclusion because of the judge’s statement that “[r]egarding the authorization to search for firearms, the quality of the informers’ tips must be assessed to determine whether Constable Mesenchuk’s belief they would be found in the residence was objectively reasonable” (at para 28).

[33] In connection with whether the information provided by the confidential informants justified the search of the Residence for firearms, one of the informants had said nothing about Mr. Charles possessing firearms. The judge concluded that the information provided in the summary of information relating to the other three informants could not have reasonably been found by the authorizing justice to have satisfied the reasonable grounds standard on the factors outlined in Debot.

[35] One reason the judge gave for finding the tips provided by the confidential informants not to be compelling was that they lacked detail and were stated in what amounted to boilerplate language. For instance, the ITO prepared by Cst. Mesenchuk recorded that each of the three informants had advised that “Justin Charles has multiple firearms at his house”. After commenting on the lack of particularity in the descriptions of the statements attributed to the three informants, the judge continued with her analysis by emphasizing the fact that the summary provided in the ITO as to what each informant had to say was identical and was obviously paraphrased. From this she identified several dangers, which she explained as follows:

[44] The practice of paraphrasing an informant’s tip poses several dangers. First, an Affiant may cherry-pick information, omitting relevant information that does not support the officer’s belief, or that contradicts what another informant says. Second, when they paraphrase, they may choose more corroborative language than the tip perhaps deserves. Third, the Affiant may interpret what the informant says to conform with what others have said, when the meaning might be ambiguous. For example, when the informant says “a closet full of heaters,” the Affiant decides they really mean “multiple firearms.” But the informant may not mean that. It is up to the issuing justice to decide whether any inconsistencies are too great to constitute corroboration, or whether they are relatively minor. And finally, at its worst, the practice may mislead the justice by disguising serious inconsistencies between the informants that may diminish the value of the evidence offered to support the search warrant. The vaguer the statement, the easier it is to find corroboration. Specific information is more credible and more compelling, but more difficult to corroborate.

[45] While informant tips may corroborate each other inter se, as has been found in other cases, on this ITO as drafted, I find the degree of detail so low as to be the likely product of gossip or rumour. Although paragraph 6 includes the assertion that the informants are independent of each other, testimony established only that the police have systems in place to ensure the informants are all different people. It is not asserted that they do not know each other. Given the small pool of likely informants, it is quite likely they do know each other. While the ITO need not rule out the mere possibility of gossip or rumour, it should contain enough detail to negate an apparent likelihood of such. Here, these tips are too vague to alleviate the concern. The fact there were three of them is not enough in this case. That is the thing about gossip and rumours; they get around. [Emphasis by PJM]

(Emphasis in original)

[36] Paragraph 44 of the Voir Dire Decision begins with the observation that the “practice of paraphrasing an informant’s tip poses several dangers”. I see no error in this. The judge’s comments parallel LeBel J.’s caution in the context of discussing boilerplate language against “the temptation of misleading the authorizing judge, either by the language used or strategic omissions” (Araujo at para 47; see also R v Hosie (1996), 107 CCC (3d) 385 (Ont CA) at 398–399). Although LeBel J. led into this direction by emphasizing that “there is no need” for the affidavit to be “lengthy”, he added that, ideally, “an affidavit should be not only full and frank but also clear and concise” (at para 46, emphasis in original). To that effect, in Morelli, Fish J. stressed that concision is “achieved by omitting irrelevant or insignificant details, but not by material non-disclosure”, in part due to the risk of inviting an inference that otherwise may not have been available (at para 58). Moreover, paraphrasing raises the risk of incorrectly communicating the informant’s information: see, for example, R v Omarbach, 2022 ONCJ 267 at para 149; and R v S.S., 2022 ONCJ 646 at para 246. It may also risk the introduction of a reinterpretation of information found in the affidavit, which may impact the ability of the issuing justice to independently evaluate the information: see, for example, R v Shaporov, [2021] OJ No 6772 (QL) (Ct J) at paras 94 and 156.

[37] I accept the need for the handlers of confidential informants to protect the identity of their sources: see R v Crevier, 2015 ONCA 619 at para 68, 330 CCC (3d) 305. However, in this case, I see no error in the conclusions drawn by the judge about the remarkably general and uniform way that the information was offered to support the issuance of the warrant.

[38] The Crown also asserts that the judge erred because she “did not ascribe any weight to [Mr. Charles’s] criminal history”. I can accept that a failure to consider a relevant factor can amount to an error of law. Here, however, the judge determined Mr. Charles’s criminal record in conjunction with other evidence to be of insufficient probative value to justify the grant of the warrant. In this regard, the judge accepted that the “criminal record of a suspect can often provide corroboration although ‘the cogency of the criminal record depends on its similarity to the criminal activity alleged by the tipster and the age of the record’” (at para 23, quoting Protz at para 57, which in turn quoted R v MacDonald, 2012 ONCA 244 at para 23, 290 OAC 21). Later in her reasons, she referred to Mr. Charles’s criminal record, including his convictions for firearms offences. She specifically mentioned that he “had been shot about three months earlier, and police say he also had a firearm in that incident”. She then accepted that these “facts are evidence of propensity, which is allowable in a warrant application, but insufficient to lend credence to the informer’s tips, the true basis for issuing the search warrant”. Ultimately, she concluded that these “facts do not raise the totality of the circumstances to the level of credibly-based probability required for issuing a search warrant” (at para 47). It was after making these comments that the judge offered the previously quoted statements that, although according to Debot “strengths in one area may overcome weaknesses in another, but weaknesses in all three areas do little to establish the proper grounds” here, the “tips, taken individually or together, are too vague to allow the justice to properly assess the evidence” (at para 48).

[40] Furthermore, even if we were to apply a correctness standard, I see no error in the judge’s analysis. Applying that standard, we would ask first whether the reviewing judge identified the correct standard of review and then whether she applied that standard correctly. In this case, the Crown concedes that the judge identified the correct standard in her review of the grant of the authority to issue the warrant. For the reasons I have given, I am also satisfied that, subject to two matters that I will mention in a moment, she applied that standard correctly. The one error, or possibly two legal errors, I see in her analysis had no impact on her reasons.

V. CONCLUSION

[64] For the reasons I have given, I would dismiss the Crown’s appeal.

R v EDJ-C, 2024 ONCA 48

[January 24, 2024] Sexual Assault: Stereotypes of Human Sexuality [P. Lawyers, David M. Paciocco, B. Zarnett JJ.A.]

AUTHOR’S NOTE: Judges continue to apply their personal views of human sexuality as a barometer of plausibility in sexual assault cases. This case is a short reminder that this is not appropriate. Plausibility in the kind of sexual relations people might have must be grounded in the evidence given at trial. More specifically, evidence given by the parties about what they would or would not consider doing. It is not for the courts to impose their views of plausibility based on some standard-form sexual relations they imagine for the complainant or accused on trial. 

OVERVIEW

[1] The appellant, E.D.J.-C., was convicted of sexually assaulting a co- worker, the complainant, at approximately 10:00 p.m. on December 2015. The incident was found to have occurred in a parked car on the side of a public street close to the appellant’s place of residence as the complainant was dropping him off on her way home from the bar where they worked.

THE GOVERNING LEGAL PRINCIPLES

[3] The relevant law is not in dispute. The “rule against ungrounded commonsense assumptions” requires judges to avoid speculative reasoning by invoking “common-sense” assumptions, including about human behaviour, that are not grounded in the evidence or appropriately supported by judicial notice: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at paras. 58, 61.

[4] The overlapping “rule against stereotypical inferences” prohibits credibility reasoning based on stereotypical inferences or “prejudicial generalizations” about human behaviour: J.C., at paras 63, 65. This rule prohibits inferences and not the admission of kinds of evidence. It is not an error to admit evidence that could be used to draw stereotypical inferences where that evidence is offered in support of permissible inferences: J.C., at paras. 68-69.

[5] Drawing common sense inferences not grounded in the evidence or stereotypical inferences will not constitute a reversible error unless the impugned inference plays a material or important role in reaching a material conclusion: J.C., at para. 71.

THE MATERIAL FACTS

[6] The complainant’s version of events was that when she dropped the appellant off, he asked her for a kiss, to which she ultimately agreed in order to placate him. She said that she obliged him again when he asked for a “real kiss”, so that he would be satisfied and leave her vehicle. She testified that he pulled her towards him and then, for several minutes, forcibly penetrated her vagina with his finger despite her objection and resistance.

[7] She said the appellant had been flirtatious before, but that she had rejected his efforts because she did not want a relationship with a co-worker.

[9] The appellant provided a diametrically opposed account. He testified that the complainant, who was in a more senior position than him at the bar, kissed him consensually in the parked car. He said he then asked her if he could touch her before he did so. He said he “play[ed] it safe” in this way because she was “a power figure” at the bar, and he did not want to jeopardize his employment. He also testified that when he asked the complainant if he could touch her, she initially told him she was on her period, but she ultimately agreed to allow him to touch her clitoris and that she took off her seat belt and opened her pants to facilitate this. He then masturbated her to climax.

[10] During her testimony, the complainant was confronted about being on her period at the time of the incident and about having this conversation. She said she could not recall whether she was on her period, but allowed for the possibility that she and the appellant had a conversation about her period. She could not remember.

[12] The appellant takes issue with two aspects of the trial judge’s reasoning in rejecting his testimony.

[13] First, the trial judge said that the appellant’s testimony “becomes somewhat incredible” against the background of his testimony that the complainant was “a power figure” at the bar. He then explained:

I do not accept that [the complainant], an established employee at the bar was willing to engage in high-risk sexual activity in a car on a busy street in full view of the public. It would make no sense for [the complainant] to engage in this activity and risk being seen by the public or worse, law enforcement, particularly when any consensual sex could be safely conducted in the privacy [of the appellant’s] residence which was only three houses away.

[14] The complainant was not asked during her testimony about her willingness to engage in high-risk sexual activity. Nor was evidence provided as to the risk to the complainant’s career prospects if found engaging in a public sex act with the appellant.

[15] The appellant argues that this implausibility finding was not grounded in the evidence and was based on impermissible stereotypical reasoning about what kinds of sexual activity individuals are prepared to engage in and what kind of sexual risks they will take.

[16] Second, in further explaining his implausibility finding the trial judge said:

Nor do I find it credible that [the complainant] would agree to any type of sex in the confines of a car when she was having her period. This, in my view, defies logic.

[17] Once again, the appellant argues that this inference is not grounded in the evidence and is also based on stereotypical inferences about the kind of sexual activity that women would engage in when on their periods.

[19] Defence counsel gently suggested that the trial judge was engaging in mythbased or stereotypical reasoning when raising these points. The trial judge responded:

This is not a myth-type situation. This is a situation where – you’re right, I’m not saying that it can’t have happened, but when you’re looking in terms of the credibility of, of your client’s account, I’m having to look at this subjectively and think, well, why would she do that?

Like, she didn’t look like she was some, you know, fetish freak or some person who got her kicks out of having sex in public. She looked like this very, you know, modest, humble type of person who is basically very uncomfortable even testifying. She’s uncomfortable testifying; she’s very comfortable about having sex in public when, you know, with an employee that – anyway, that, that’s what the Crown’s going to say. I’m just pointing that out to you for, for your response (emphasis added).

ANALYSIS

[22] Contrary to the appellant’s submissions, the inference that the complainant would not have engaged in the sexual act described by the appellant in a public vehicle is grounded in the evidence. This inference is based on the complainant’s testimony that she did not want a relationship with a co- worker, coupled with evidence that the appellant’s residence was nearby.

[23] An inference that the complainant would not engage in such “high-risk” sexual activity in the car given her employment concerns would not have been predicated on myth or stereotype. However, the trial judge appears to have gone beyond this line of reasoning, based on related comments he made in the colloquy with defence counsel that reveal his belief that only a “fetish freak” would engage in public sexual activity. This is unquestionably stereotypical reasoning. The trial judge’s description of his thinking is made even more concerning by his comments that the complainant is not the type of person who would engage in such conduct - there is simply no other way to understand his remarks about how the complainant presented, or his evident assumption that a woman who would engage in such conduct would not have been uncomfortable testifying, as the complainant was. If this reasoning contributed to the trial judge’s conclusion that the complainant would not have engaged in consensual sexual activity in a vehicle parked on a public street, it not only violated the rule against stereotypical inferences, but it was also impermissible character reasoning. The law rightly guards against determining whether a complainant would consent to sexual activity based on their character. There is no room for such thinking.

[25] We reject this argument. The impermissible lines of reasoning that the trial judge put to defence counsel were flatly impermissible and should not have been of any concern to the trial judge. The safest way to proceed where such thinking is expressed during trial and is not explicitly disavowed in the judgment is to assume that it improperly influenced his thinking.

[26] In any event, the trial judge’s related line of reasoning that it “defies logic” that the complainant would have agreed to any type of sex in the confines of a car when she was having her period manifestly breached the rule against stereotypical inferences and, as the Crown concedes, this erroneous reasoning was material in making the implausibility determination.

[28] The Crown was right not to rely on menstruation in its submissions. The trial judge erred by doing so. And it played an important part in his reasoning, being raised repeatedly during the colloquies by the trial judge even though not raised by either counsel.

CONLUSION

[30] The appeal is allowed, the conviction is set aside, and a new trial is ordered.