The Defence Toolkit – March 26, 2022

This week’s top three summaries: R v Harnett, 2022 ABQB 213: 271 #reliability of recollection, R v Whitefish, 2022 SKPC 9: as soon as #practicable, and R v Neville, 2022 ONCJ 110: CD for #living off avails.

This week's top case deals with reliability in a sexual assault case. If you want to dig deeper into the subject, I recommend the Emond title below which includes chapters on consent and evidentiary issues. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.

R v Harnett, 2022 ABQB 213

[March 17, 2022] Sexual Assault: Reliability of Recollections of Non-Consent [Justice W.N. Renke]

AUTHOR’S NOTE: Part of the defence challenge in a sexual assault case is how to undermine the reliability of the recollections of a complainant? Usually, the complainant comes to court on a mission to make the court believe them that their sexual integrity was violated. Consequently, the moments of assault are the very moments that they are most defensive about if challenged on the reliability of their recollections. This means they try to come across as certain of their recollections and rarely admit to any form of uncertainty about the essential actions required for sexual assault. Herein, Justice Renke provides a compelling analysis of a factual trail that traces the process of memory becoming changed with the passage of time while certainty of assault increased. Elements of the complainant's subsequent utterances were inconsistent with her narrative and her reaction was to put incredible spin the plain meaning of the words she uttered. This caused the court to lose faith in her account of the lack of consent during the assault itself.

Overview

[1] Mr. Harnett was tried on a single-count Indictment alleging that he, on or about April 27, 2019, at or near Edmonton, Alberta, unlawfully committed a sexual assault upon the Complainant, contrary to s. 271 of the Criminal Code. The trial was by judge alone.

[2] Two witnesses testified, the Complainant and Mr. Harnett.

[4] The testimony of the Complainant and of Mr. Harnett did not conflict respecting the broad features of the sequence of events.

[5]  The Complainant and Mr. Harnett had never met before April 27, 2019.

[6]  They encountered one another after last call at Blues on Whyte, a bar and music venue on Whyte Avenue in Edmonton. They talked over the course of about half an hour.

[7] The Complainant had gone to Blues on Whyte with a group of friends. Mr. Harnett was with his friend, Chris.

[8] The Complainant’s friends lived in West Edmonton. She lived in the East. Mr. Harnett lived not far from the Complainant in East Edmonton. The Complainant took a cab or uber with Mr. Harnett and Chris to Mr. Harnett’s residence.

[9] At Mr. Harnett’s residence, Mr. Harnett, Chris, and the Complainant had some drinks and each did a line of cocaine. After one of Mr. Harnett’s housemates complained about noise, they went to the garage for awhile.

[10] Mr. Harnett, Chris, and the Complainant then took a cab or uber to the Complainant’s residence. At the Complainant’s residence, each did a line of cocaine. Mr. Harnett and Chris had some drinks.

[11]  Chris left.

[12]  Mr. Harnett and the Complainant “hung out” for awhile.

[14] The Complainant and Mr. Harnett went into her bedroom. They engaged in sexual activity. The sexual activity was initially consensual. Common to both accounts was that after some sexual interactions, they fell asleep. Upon awaking, further sexual contact occurred.

[15] The Complainant called a cab for Mr. Harnett sometime after about 10:00 a.m. She gave him her phone number. He left.

[16] The testimonies of the Complainant and Mr. Harnett differed on whether the sexual activity following the initial contact was consensual. The Complainant testified to conduct that would constitute sexual assault. Mr. Harnett testified that the contact was consensual or that he honestly believed the contact was consensual.

Legal Principles: Proof Beyond a Reasonable Doubt

[178] If credibility is an important issue in a case, the reasonable doubt standard must be applied to credibility: R v W(D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, Cory J at 757. A reasonable doubt may arise from factors relating to the sincerity or reliability of the testimony of Crown witnesses, undermining the Crown case. A reasonable doubt may arise from factors relating to the sincerity or reliability of an accused, preventing his or her narrative from being wholly rejected. Of course, a reasonable doubt may emerge from other evidential sources in the trial as well. And of course, an accused may be believed. His or her evidence may be accepted not only as raising a reasonable doubt but as being true or likely true.

[180] In Ryon and R v Achuil, 2019 ABCA 299 at para 18 (respecting (ii) below), Justice Martin helpfully recast the elements of the W(D) assessment of the totality of trial evidence under the reasonable doubt standard (with some qualifications omitted):

[51]      The charge [or a judge’s self-instruction] should impart the following information:

(i) The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown ….

(ii) In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, or even if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit ....

(iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not a credibility contest requiring them to decide that one of the conflicting versions is true. If, after careful consideration of all the evidence, the jury is unable to decide whom to believe, they must acquit.

(iv) Even if the jury completely rejects the accused’s evidence (or ... other exculpatory evidence), they may not simply assume the Crown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether that evidence persuades them beyond a reasonable doubt that the accused is guilty. Mere rejection of the accused’s evidence (or ... other exculpatory evidence) cannot be taken as proof of the accused’s guilt.

[181] Para 51(iii) of Ryon confirms an important clarification of the W(D) conclusions. In sequence, this conclusion follows the second W(D) conclusion, as observed by Justice Binnie in R v JHS, 2008 SCC 30 at para 12: “If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.” In a similar vein, Justice McQuaid wrote as follows in Hogg para 134 (PECA):

[134]   .... the trial judge might not believe the evidence of the accused while at the same time harboring some concerns about the evidence of the Crown where it conflicts with the evidence of the accused. If the trial judge cannot resolve the conflict in the evidence, the trial judge must acquit because all the evidence, including that of the accused, has obviously raised a reasonable doubt as to the guilt of the accused.

See also R v Nimchuk, 1977 CanLII 1930 (ON CA), 1977 CarswellOnt 980, 33 CCC (2d) 209 (ON CA), Martin JA at para 7 (CarswellOnt).

[182] When faced with competing narratives, the trier of fact must not simply prefer one over the other: R v CLY, 2008 SCC 2, paras 6-8. The verdict should not be based on a choice between the accused’s evidence and the Crown’s evidence, but on whether, based on the whole of the evidence, the trier of fact is left with a reasonable doubt as to the accused’s guilt.

[184] An accused does not raise a reasonable doubt just because he testifies: The Queen v Proudlock, 1978 CanLII 15 (SCC), [1979] 1 SCR 525, Pigeon J at 551; R v JE, 2012 ONSC 3373, Code J at para 20. “It would be a perverse misinterpretation of W(D) to suggest that the mere fact of the accused taking the stand, or otherwise leading defence evidence, is in itself sufficient to raise a reasonable doubt:” R v Garford, 2021 ABCA 338 at para 32.

[53]      .... An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

In R v CLS, 2021 ABCA 147 at para 46, the Court of Appeal wrote that:

[46]      ... a trial judge is not obliged to find any particular fault with an accused’s testimony in order to convict. A trial judge may reject a defendant’s evidence, and find that it does not give rise to a reasonable doubt, based on a reasoned acceptance beyond a reasonable doubt of conflicting credible evidence proving the essential elements of the offence ....

See also R v BJJ, 2018 ABCA 196 at para 28; R v Vuradin, 2013 SCC 38, Karakatsanis J at paras 13 and 19.

2. Assessment of Testimony

[186] No witness’s testimony, whether a complainant’s testimony or an accused’s testimony, is presumed to be true. A suggestion that a Crown witness’s testimony should be presumed to be true would be contrary to the presumption of innocence.

[187] A complainant’s credibility is not bolstered just because she testifies: “the fact that a complainant pursues a complaint cannot be a piece of evidence bolstering her credibility. Otherwise it could have the effect of reversing the onus of proof:” R v GRA,1994 CanLII 8756, 35 CR (4th) 340 (ON CA) at para 4; R v JC, 2021 ONCA 131 at para 88; R v Snell, 2021 BCSC 673, Marchand J at para 44.

[189] I must apply the same level of scrutiny to Crown and Defence evidence: R v Wanihadie, 2019 ABCA 402 at paras 33-36; R v Howe, 2005 CanLII 253, 192 CCC (3d) 480 (ON CA), Doherty JA at paras 59 - 64; R v Norman, 1993 CanLII 3387, 87 CCC (3d) 153, (ON CA), Finlayson JA at 24 - 25; R v Schell, 2013 ABCA 4 at para 34; R v MJB, 2015 ABCA 146 at para 33; R v McGown, 2016 ONCA 575 at para 96; R v GF, 2021 SCC 20, Karakatsanis J at para 99.

[190] In the assessment of evidence, rigorous self-examination may be required, along the lines suggested for jurors by Justices Moldaver and Brown in R v Chouhan, 2021 SCC 26 at para 54: “Trial judges should exhort jurors to approach their weighty task with a heavy dose of self‑consciousness and introspection. Jurors must identify and set aside prejudices or stereotypes when considering the evidence of any given witness and when reaching a verdict ....” Justices Moldaver and Brown wrote in Chouhanat para 48 that “the life experiences that jurors may legitimately bring to their deliberations cannot interfere with their responsibility to approach the case with ‘an open mind, one that is free from bias, prejudice, or sympathy’ (R. v. Barton, 2019 SCC 33, at para. 195).”

Actus Reus of Sexual Assault

[197] In Barton at paras 88 and 89, Justice Moldaver summarized the Supreme Court jurisprudence respecting consent for actus reus purposes:

•         Consent is subjective. It is determined by the complainant’s state of mind.

•         Consent is the conscious and voluntary agreement to engage in each sexual activity in question.

•         Consent must exist at the time the sexual activity in question occurs.

•         The “sexual activity in question” encompasses the specific sexual activity, the sexual nature of the activity, and the identity of the partner, but does not include “conditions or qualities of the physical act:” at para 88; R v Hutchinson, 2014 SCC 19 at paras 55 and 57.

•         Consent may be revoked at any time.

•         The complainant need not express her lack of consent or revocation of consent for the actus reus to be established.

See also R v AE, 2021 ABCA 172, affd 2022 SCC 4, Martin JA at paras 24-25(CA); GF at para 29.

[198] While consent for actus reus purposes is subjective, the complainant’s self-report about that subjective state is not necessarily determinative. Circumstantial evidence may raise at least a reasonable doubt about whether the complainant did consent. “While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence.  It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place:” R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, Major J at para 29.

Mens Rea of Sexual Assault

[200] A more common denial of mens rea is that the accused had an honest but mistaken belief in communicated consent. If there is some evidence that could support a reasonable possibility that the accused did have an honest belief in communicated consent meeting the strictures of s. 273.2, the Crown must prove beyond a reasonable doubt that the accused had no such belief.

[202]  Negating mens rea requires some evidence that at least raises a reasonable doubt that the accused in fact or subjectively believed that consent was communicated. Like a complainant’s self-report of the subjective state of consent, the accused’s self-report concerning his belief is not determinative.

[203] Under s. 273.2(a), the accused’s belief cannot have arisen from self-induced intoxication, or from the accused’s recklessness (the accused (subjectively) adverted to the risk of non-consent and proceeded regardless), or from the accused’s wilful blindness (the accused (subjectively) adverted to indications of non-consent and deliberately ignored those indications and refrained from making inquiries as to whether the complainant consented).

[204]  Paragraphs 273.2(b) and (c) turn on communicated and apprehended consent.

Mens Rea: Communicated Consent

[205] At para 90 of Barton, Justice Moldaver confirmed that for mens rea purposes, “consent” means “‘that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused’ (Ewanchuk, at para. 49) .... The question becomes whether the accused honestly believed ‘the complainant effectively said ‘yes’ through her words and/or actions’ (ibid., at para. 47).” See AE at para 26(CA). “Nothing less than positive affirmation is required:” R v Goldfinch, 2019 SCC 38, Karakatsanis J at para 44.

[206] The key issues concern (1) the complainant’s actual communicative behaviour and (2) the evidence bearing on the accused’s alleged belief that this behaviour communicated consent: R v Park, 1995 CanLII 104 (SCC), [1995] 2 SCR 836, L’Heureux-Dubé J at para 44; Barton at para 92. That is, the key issues concern what the complainant said or did at the time of the sexual contact and how and why the complainant’s conduct supported the accused’s belief that consent had been communicated: Barton at para 93.

[209] Prior consensual activities between a complainant and accused, though, “may establish legitimate expectations about how consent is communicated between the parties, thereby shaping the accused’s perception of communicated consent to the sexual activity in question at the time it occurred:” Barton at para 93.

[211] Because consent must be communicated by word or conduct, consent cannot be “implied” from external circumstances or events. Silence, passivity, or ambiguous conduct do not support consent. Consent cannot be presumed to exist just because of the complainant’s lack or protest, resistance, or verbalization that the contact is unwelcome: Barton at paras 98, 118.

(ii) Mens Rea – Reasonable Steps

[217] Second, given the circumstances known to the accused, the accused must take “reasonable steps ... to ascertain that the complainant was consenting.” As the steps must be “reasonable,” the assessment of the steps taken is objective. The standard is what steps the reasonable person with the accused’s knowledge of the circumstances would have taken to determine whether there was communicated consent to the specific sexual activity at the time of that sexual activity, and whether the accused took those steps. (In the words of the Canadian Judicial Counsel Model Jury Instructions “Sexual Assault” jury charge at para 9, “ask yourselves whether a reasonable person with that knowledge would make further inquiries to ensure the complainant was consenting. If the answer is yes, ask whether the accused made those inquiries. If the accused did not, then the accused cannot claim that he or she honestly believed the complainant had communicated consent.”)

[219] The reasonable steps requirement confirms that the accused cannot equate silence, passivity, ambiguity, or the absence of “No” to be communicated consent. Otherwise, no steps would be the equivalent of reasonable steps: Barton at paras 105, 107, 109.

[220] Reasonable steps cannot be based on rape myths or stereotypical assumptions about women and consent: Barton at para 107. Reasonable steps cannot be based on mistakes of law (canvassed above – implied consent, advance and broad advance consent).  An attempt to “test the waters” by recklessly or knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step: Barton at para 107.

[222] Nonetheless, in some circumstances, the threshold for satisfying the reasonable steps requirement will be elevated. For example, the threshold for satisfying the reasonable steps requirement will be higher the more invasive the sexual activity in question or the greater the risk posed to the health and safety of those involved, or if an accused and complainant “are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings, and mistakes:” Barton at para 108.

Assessment of the Evidence

Complainant's Testimony

[227] The first set of allegations began with acknowledged consensual sexual contact between the Complainant and Mr. Harnett. The evidence supported the initially consensual nature of the sexual activity. According to the Complainant, what was initially consensual evolved to non- consensual sexual touching. Mr. Harnett covered the Complainant’s eyes with his hand or hands. Subsequently, there was digital and penile contact with the Complainant’s anal area. This was followed by resumed vaginal intercourse.

[228] The Complainant did not testify to having consented to the covering of her eyes.

[229] Mr. Harnett had said in his testimony that this conduct was not sexual. In the abstract, he would be correct – covering another’s eyes is not per se or is not necessarily sexual contact. However, the test is objective, applied in all the circumstances....

[230] In this instance, the covering of the eyes occurred during sexual contact with the motive of enhancing the sexual gratification of both partners. Mr. Harnett intended the eye-covering to be a form of bondage or domination sexual contact.

[231] On the Complainant’s testimony, her consent to vaginal intercourse would not have extended to acts of bondage or domination. In Hutchinson, Chief Justice McLachlin and Justice Cromwell wrote at para 54 that:

[54]      .... The complainant must agree to the specific physical sex act. For example, as our colleagues correctly note, agreement to one form of penetration is not agreement to any or all forms of penetration and agreement to sexual touching on one part of the body is not agreement to all sexual touching. [emphasis in original]

(ii) Anal Contact

[233] Anal contact occurred. I find that that, on the Complainant’s testimony, the digital contact with her anal area was consensual. The Complainant testified, though, that some penile contact with her anal area followed. She testified that she said No before this occurred. Her testimony would support the finding that this form of contact was not consented to. Her testimony did not leave an evidential foundation for an honest but mistaken belief in communicated consent respecting contact with her anal area by Mr. Harnett’s penis.

[234] Defence Counsel cross-examined the Complainant on a prior statement to the police. In the statement the Complainant said that Mr. Harnett had only “tried to” effect anal penetration with his penis. Defence Counsel sought an admission that the Complainant’s use of the term “tried to” in the statement meant that Mr. Harnett had not accomplished penile penetration at all. The contrast between no penetration at all and penetration would have been, in Defence Counsel’s submission, a “huge difference” and would have pointed to a change in the Complainant’s evidence. In response, the Complainant maintained that Mr. Harnett did accomplish some penetration, although not entire. He started but did not complete what was attempted. The Crown submitted that there are degrees of invasiveness, which is undoubtedly true. I find that what the Complainant had expressed with her “tried to” language was not that no penile penetration occurred but that some penetration occurred, but only briefly and not completely.

(iii) Spitting

(b) Second Sexual Contact

[237] The second set of allegations concerned the sexual contact that occurred following a pause in intercourse. The Complainant testified that she told Mr. Harnett that she wanted to go to sleep. The Complainant’s testimony (again, assuming full acceptance and no reasonable doubt respecting her testimony) would have supported a finding of sexual assault. Her testimony was that Mr. Harnett forced himself upon her. She tried to resist, she tried to avoid contact, but was unable. In the circumstances there could have been no foundation for an honest but mistaken belief in communicated consent.

(c) Third Sexual Contact

[243] Second, some elements of the Complainant’s testimony would show that she did not consent but only submitted because of her prior experience with Mr. Harnett. One legal characterization of her testimony is that she did not in fact consent. She did not resist because resistance would have served no purpose. Alternatively, if she did consent (as she testified) that consent may not have been legally effective. Her consent would have been vitiated by “fear of the application of force:” s. 265(3)(b) of the Criminal Code; GF at paras 33, 35, 36.

[245] However, the Complainant’s admission that this contact was consensual would have provided some support to a defence of honest but mistaken belief in communicated consent.

[246] And in any event, the complications arising from the Complainant’s evidence would only require resolution if I rejected Mr. Harnett’s testimony.

(d) Rough Sex

[247] The Complainant testified at several points that the sexual contact with Mr. Harnett was “rough.” Mr. Harnett confirmed that the contact was vigorous, although he added that the Complainant had urged him to go harder.

[249 I acknowledge Justice Pentelechuk’s observation in AE at para 151(CA):

[151]   .... Giving full effect to sexual autonomy means that courts are not to decide whether sexual activity is “nice” or “normal”, but strictly whether it was consensual. Where genuine, legally effective consent exists, unconventional sexual choices, even those that some might find offensive or questionable, should be protected.

But “rough sex” is an ambiguous and ill-defined term, and most assuredly is not some boundless concept that one either does or does not consent to. Merely agreeing to participate in rough sex, without more, cannot be taken as consent to engage in whatever acts of violence, abuse or degradation the other party desires.

[252] However, the Crown did not argue that the Complainant’s consent to any sexual contact was vitiated by Mr. Harnett’s conduct.

[253] I confirm that the evidence did not support a finding, beyond a reasonable doubt, that Mr. Harnett intended to cause bodily harm to the Complainant.

2. Demeanour

[254] As Justice Mandziuk wrote in R v HPM, 2022 ABQB 98 at para 210, “[t]riers of fact must be very cautious in measuring truthfulness with demeanour.” Demeanour is neither determinative nor the most important factor in assessing credibility but remains a factor to be considered. Demeanour concerns a witness’s manner of giving evidence, the witness’s conduct in giving evidence as opposed to the content of the evidence. Every witness should be given some latitude in a credibility assessment because of the stress of testifying, unfamiliarity with courtroom procedures, and the stresses of cross-examination. (Other factors not arising in this case such as facility with the language of testimony might also be relevant.) Factors like these can explain what otherwise might be regarded as a concerning manner of testifying.

[255] Nothing in the Complainant’s demeanour as a witness, that is, in her manner of providing testimony, caused me any concerns relating to her credibility....

5. Significance of the Inconsistencies

[279] In Samaniego at para 123, Justice Paciocco provided a useful account of “inconsistency:”

[123]   .... In R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764 at para. 38, Lamer C.J.C., without intending to offer an exhaustive definition of the term, described an “inconsistency” as “a different version of the story”, that casts doubt on both versions of the story. He also endorsed Professor McCormick’s comment in McCormick on Evidence, 4th ed. (West Pub, 1992), at p. 120, where Professor McCormick described an inconsistency as a “change of face” that may be explored, “casting light on which is the true story and which the false”.

[281] Do the inconsistencies undermine the Complainant’s credibility in any meaningful way? (See Crosby at para 18.) In my view, the inconsistencies do undermine the Complainant’s credibility in a meaningful way.

[284] Third, the recharacterization of the prior statements and the inference of recharacterization of the Complainant’s narrative must be considered in connection with a comment made by the Complainant in cross-examination respecting a text sent to C. The Complainant had said “I’m done drinking for awhile.” Cross-examination addressed the role of intoxication. The Complainant had testified that intoxication had nothing to do with what happened. The Complainant gave this explanation to Defence Counsel:

A Looking back a week later after having that had happened, yeah, I regretted it ....

Q So your view of that night changed from in the moment to a week later when you were talking to Carla; is that fair?

A Yeah. I had more time to think about it.

She confirmed that her view of that night changed. That answer supported an inference that the Complainant’s account of what had happened had changed. The inconsistencies emerging from her trial testimony reflected and reinforced that changed view. [PJM Emphasis]

[286] I do not suggest that the inconsistencies would support the full rejection of the Complainant’s testimony. I do find that the inconsistencies raise reasonable possibilities of the inaccuracy of her testimony. [PJM Emphasis]

[288] Defence Counsel submitted that the inconsistencies demonstrate that the Complainant lied under oath. I do not make that finding.

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony. The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness’s credibility. When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable ....

I acknowledge as well that trial judges are sometimes criticized for conflating or failing to distinguish credibility (understood as “sincerity”) and reliability: see GF at paras 80, 82.

[290] The Complainant, in my view, is certain that what she testified to is what happened. Certainty is a state of mind, a state of being sure, a state of having no doubt. It is a subjective state. (See Professor Benjamin Berger “The Rule in Hodge’s Case: Rumours of its Death are Greatly Exaggerated” (2005), 84 Canadian Bar Review 47 at 60, 61; Villaroman at para 28). As Morrissey reminds us, certainty (honest reporting) is no guarantee of reliability, of correspondence between reports of what happened and what actually happened. Moreover, as a subjective state, certainty is not necessarily constant over time. We have all heard witnesses say that they have “become more certain” as time has passed.

[291] Given the Complainant’s certainty, the plain language of her communications appeared to her to be dissonant. The plain language was not congruent with the narrative she was sure of. She therefore reinterpreted the communications to eliminate the dissonance. She was interpreting the texts in line with what must have been her intent and what should have been her intent when composing the communications. She was trying to make the texts conform to what she was certain was true. She was trying to make the texts true, to her narrative of events. [PJM Emphasis]

E. Mr. Harnett’s Testimony

[293] Mr. Harnett testified to more than a “bare denial” of what occurred. He provided a detailed account of how he and the Complainant went from having been strangers to their sexual contact some hours later. His testimony provided an explanation for the peculiar features of their sexual contact.

[295] Mr. Harnett’s account of the second sexual contact would support the inference that the interaction was wholly consensual. He and the Complainant had been having consensual sex and they continued to have consensual sex.

[296] Similarly, Mr. Harnett’s account of the third sexual contact would also support the inference that the interaction was wholly consensual. After having had consensual sex earlier, he and the Complainant awoke and the Complainant initiated further sexual contact.

(i) Anal Contact

[298] Mr. Harnett testified that he and the Complainant discussed anal sex in and outside of Blues on Whyte, before they left Mr. Harnett’s home and went to the Complainant’s home, and by implication in the Complainant’s home before Chris left. The Complainant referred to discussion of this topic when they were alone, although she said, to summarize, that she didn’t want to be touched in this area by Mr. Harnett. Nonetheless, in my opinion, the Complainant’s testimony itself established that the digital anal touching was consensual and this conclusion was confirmed by Mr. Harnett’s testimony.

[299] Contrary to the Complainant’s testimony, Mr. Harnett denied any penile insertion. He asked, she said No, and he did not proceed. If Mr. Harnett’s testimony were not wholly rejected, sexual assault would not be established in relation to this form of alleged non-consensual sexual touching.

(ii) Resumption of Intercourse

[300] After the Complainant said No to the penile contact, Mr. Harnett resumed vaginal intercourse. The Crown argued that after the Complainant said No to the penile contact he was required to re-affirm that continued sexual touching of the Complainant was consensual. Mr. Harnett made no verbal inquiry before continuing. The Complainant had confirmed that there was no “conversation” after she said No to the anal contact. The implication is that, on his own testimony, Mr. Harnett proceeded with vaginal intercourse without consent and without an honest but mistaken belief in communicated consent.

[302] However, Justice Martin also wrote at para 44(CA) of AE that “I disagree with the proposition that the complainant could not simultaneously consent to one act of sexual touching, while refusing another.” Saying No to the anal contact was not equivalent to saying No to the vaginal intercourse. Mr. Harnett’s testimony was that “everything kept going on. Everything was flowing.” The inference from Mr. Harnett’s testimony would be that the continued vaginal intercourse was consensual. In addition, Justice Martin wrote at para 97(CA) of AE that:

[97] Depending on the circumstances, a withdrawn consent may be quickly re- established in an ongoing intimate relationship between respectful partners. But this was a dramatically different situation. Here we have three young men ridiculing and humiliating a young woman while beating and sexually abusing her. Her participation after expressing pain and saying no was not a “clear and unequivocal yes” as required. It may well have been an act of submission for fear of being subjected to even greater violence if she objected further. The respondents were obliged to stop and inquire and proceed only if and when a valid consent was re-established. They did not do that.

[303] The present circumstances, on Mr. Harnett’s testimony, were not at all similar to the AE circumstances. In the circumstances recounted in Mr. Harnett’s testimony, consent to vaginal contact was maintained or was quickly re-established.

(iii) Spitting

[304] Mr. Harnett testified that he asked the Complainant if he could spit on her. On Mr. Harnett’s testimony, there was contemporaneous consent to this contact. This too might seem to be entirely implausible. However, even the Complainant had testified that talk had occurred about a Nicki Minaj video depicting this conduct in a sexualized context, although that talk, the Complainant testified, was between Mr. Harnett and Chris. Mr. Harnett’s testimony was that the Complainant had said earlier that this conduct was “hot” to her.

(iv) Covering Eyes

[305] Mr. Harnett acknowledged that he did not ask the Complainant before covering her eyes. He did testify that she did not have an immediate bad reaction. She did not say No but pushed his hand away. He stopped covering her eyes. On that evidence, Mr. Harnett did not have consent to cover the Complainant’s eyes. The absence of immediate resistance was not consent.

[306] I would find, on Mr. Harnett’s testimony, that the Complainant did not consent to this sexual touching. But did Mr. Harnett have an honest but mistaken belief in communicated consent?

[307] Mr. Harnett’s testimony was that he expressly discussed bondage and domination with the Complainant at Blues on Whyte. I did not hear a specific reference to this topic in his account of their conversations at his residence or her residence. She did tell him (in his account) that when Chris was leaving the Complainant’s home, she had said that she was “down to try everything.” The Blues on Whyte conversation occurred about 3 hours before the initially consensual sexual contact. Given Mr. Harnett’s testimony, their first conversations formed part of a single narrative that moved from Whyte Avenue to his house to her house, with sexual talk occurring at all stages, culminating in sexual contact.

[308]  There was an evidential basis for Mr. Harnett’s belief that he had consent.

[309]  But was that belief invalid, as a mistake of law?

[310] Mr. Harnett and the Complainant were strangers. Covering the Complainant’s eyes, though, was not invasive and posed no risks to the Complainant: see Barton at para 108. Mr. Harnett stopped when the Complainant pushed his hand away.

[312] Mr. Harnett’s testimony did not particularize types of bondage or domination activities discussed with the Complainant. In my opinion, the eye-covering, especially brief as it was, fell toward the mild boundary of the bondage and domination spectrum of conduct. Mr. Harnett could reasonably believe that this conduct would not fall outside the scope of what he and the Complainant had talked about.

[313] Did Mr. Harnett, though, take reasonable steps, in the circumstances known to him at the time, to ascertain that the Complainant was consenting? The circumstances, on Mr. Harnett’s testimony, included the actual discussion of bondage and domination, the sexualized talk throughout the evening over some hours, and the commencement of consensual sex. In my opinion, the conversations he testified to were evidence of reasonable steps taken to ascertain the Complainant’s consent and the scope of her consent.

[314] Mr. Harnett could have asked whether he could cover the Complainant’s eyes. On his own testimony, he did ask about the anal contact and the spitting. Those inquiries, though, followed the Complainant’s manifest disapproval of the eye-covering by pushing his hand away. The Complainant’s expression of disapproval showed Mr. Harnett that he had been mistaken in his belief about what the Complainant had consented to. The Complainant put him on notice that what he thought was the scope of her consent might not be the scope of her consent. He therefore checked respecting the subsequent conduct.

[316] I find that there is at least an air of reality to the “defence” of honest but mistaken belief in communicated consent relating to Mr. Harnett covering the Complainant’s eyes.

3. Was Mr. Harnett’s testimony inherently implausible?

[318] There were no internal inconsistencies in Mr. Harnett’s testimony. He did not contradict himself. Mr. Harnett’s testimony was not implausible as self-contradictory.

[320] Care must be taken not to rely on ungrounded assumptions about how sexual conduct unfolds. Justice Paciocco wrote as follows at para 96 of JC:

[96]      The trial judge committed the first error – invoking an ungrounded common-sense assumption – by concluding that JC’s testimony is “not in accord with common sense and experience about how sexual encounters unfold.” This is a bald generalization about how people behave. It is not derived from anything particular to the case, or any evidence before the trial judge on how all sexual encounters unfold.

[321] One might have considered Mr. Harnett’s account of his sexual communications with the Complainant as improbable, for example, bringing up bondage and domination within minutes of first meeting the Complainant and repeated requests for specific sex acts as conditions for remaining with the Complainant.

[322] The Crown, properly, did not argue that Mr. Harnett’s narrative was inherently implausible. In the present circumstances (not necessarily in all circumstances), a conclusion about the inherent improbability or implausibility of the arc of the parties’ brief relationship would reveal more about the person making the judgment than about objective improbability: see R v Delmas, 2020 ABCA 152, affd 2020 SCC 39 at para 35(CA) (“Generalizations about how a woman or man ought to act in the context of sexual activity or generally in the context of their sexuality are impermissible;” and see Moldaver J at para 1(SCC)). We have the evidence of what unfolded. Mr. Harnett and the Complainant generally agreed on the main stages of that unfolding. I do not find that Mr. Harnett’s account of what occurred was inherently implausible.

(b) May 4 Texts Not Affecting Credibility

[330] Mr. Harnett wrote “Cocaine is a hell of a drug.” This, Mr. Harnett said, was a quotation from a Dave Chappelle skit. His attribution was uncontested. The reference fit with conversation Mr. Harnett testified to having had with the Complainant. I accept that, as Mr. Harnett testified, he was referring to their conversation and that the reference was “a joke, banter.”

[331] Mr. Harnett wrote the “freak comes out.” Mr. Harnett testified that this comment related back to the Complainant’s “Ease her into it” comment. This testimony was not challenged. Text comments are not necessarily chronological, sequential responses. While a comment responsive to a previous text is being written, a new text may come in. When the responsive text is sent, it may not have been directed to the last text received but to a prior text received. I accept Mr.Harnett’s explanation of the reference for this comment.

(c) May 4 Texts Affecting Credibility

[335] ... The Complainant had asked him whether he was “always so aggressive in bed.” He responded with “I think I was a lil hammered.” In context, his reference to intoxication was an explanation for the “are you always so aggressive” question. Mr. Harnett was not commenting on his condition throughout the period preceding what occurred “in bed.” That would not have been responsive.

[336] In my opinion, in response to the “aggressive” characterization, Mr. Harnett was gesturing toward an excuse of intoxication. He was saying, in effect, I was aggressive because I was intoxicated. An appeal to intoxication is, as a matter of common experience, a frequently- encountered excuse.

[337] I do not view Mr. Harnett’s comment as an admission of conduct that went beyond the scope of consent or as an admission of any criminal conduct. He was not being accused of criminal conduct by the Complainant. The Complainant had asked him whether he was “always so aggressive in bed.” He responded with “I think I was a lil hammered.” In context, his reference to intoxication was an explanation for the “are you always so aggressive” question. Mr. Harnett was not commenting on his condition throughout the period preceding what occurred “in bed.” That would not have been responsive.

[336] In my opinion, in response to the “aggressive” characterization, Mr. Harnett was gesturing toward an excuse of intoxication. He was saying, in effect, I was aggressive because I was intoxicated. An appeal to intoxication is, as a matter of common experience, a frequently- encountered excuse.

[337] I do not view Mr. Harnett’s comment as an admission of conduct that went beyond the scope of consent or as an admission of any criminal conduct. He was not being accused of criminal conduct by the Complainant.

[340] In this instance as well, I do not regard Mr. Harnett’s comment as an admission that he had acted outside the scope of consent or as an admission of criminal conduct. Again, Mr. Harnett was not responding to a claim that his conduct was criminal. On Mr. Harnett’s account, the sexual activity was vigorous, rough, kinky, adventurous. He was just a little “wild.” He confirmed in testimony that he did use “a lot of energy.”

(iii) Significance of the Inconsistencies

[341] ... I do not rely on those texts to draw adverse inferences about Mr. Harnett’s conduct. On the evidence he was not extremely drunk and on his evidence he was acting in a controlled, if vigorous manner. But the inconsistencies between Mr. Harnett’s testimonial interpretations with the plain words of his texts do have an adverse effect on my assessment of his credibility, as did the inconsistencies between the Complainant’s testimonial interpretations with the plain words of her texts.

F. The Complainant’s Testimony and Mr. Harnett’s Testimony

[343] I’ll begin with the question of whether, on the evidence, I should reject Mr. Harnett’s evidence entirely.

[344] I detected nothing in Mr. Harnett’s manner of giving evidence or in the plausibility of his evidence that would support entirely rejecting his testimony. Mr. Harnett’s testimony, if not wholly rejected, would negate criminal responsibility for each of the interactions relevant to the sexual assault charge.

[345] I did reject Mr. Harnett’s testimonial reinterpretations of two text messages to the Complainant. As indicated above, I consider Mr. Harnett’s attempted reinterpretations to be an effort to reduce potential adverse inferential effects of those texts. I consider him to be less credible than if he had not attempted these reinterpretations. The rejected reinterpretations bring into question his commitment to provide accurate evidence to the Court.

[346] However, I do not find that rejecting the reinterpretations entails that I should wholly reject Mr. Harnett’s testimony. The remainder of his testimony was not undermined by cross- examination. The inconsistencies concerned after-the-fact communications that did not, on the evidence, have much significance. As with the Complainant, though, the inconsistencies raise reasonable possibilities of the inaccuracy of his testimony.

[348] I acknowledge that “a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence” may be a basis for rejecting an accused’s testimony: JJRD at para 53. But I also acknowledge that I must avoid “the trap of trying to ‘solve’ the factual mystery presented by fundamentally conflicting evidence, i.e., choosing between two stories:” R v Avetysan, 2000 SCC 56 (CanLII), [2000] 2 SCR 745, Major J at para 21, 1999 CanLII 18966, 174 Nfld & PEIR 34 (NL CA), Green JA at para 105(CanLII); Vuradin at para 21; CLY at paras 6-8.

[350] I do not consider the Complainant’s narrative to be inherently more plausible than Mr. Harnett’s narrative. I refrained from drawing ungrounded “common sense” conclusions about Mr. Harnett’s narrative and I shall similarly refrain respecting the Complainant’s narrative. But that leaves inherent plausibility a neutral factor as between the two accounts.

[357] Mr. Harnett must be acquitted of sexual assault. I find him not guilty on the sole count of the Indictment.

R v Whitefish, 2022 SKPC 9

[February 15, 2022] Charter s.8 - 80 or Over - As Soon As Practicable [Judge MCR McAuley]

AUTHOR’S NOTE: The towing of the vehicle of the accused is often an issue in arguments that the sample was not taken as soon as practicable and there was a breach of the rights of the accused. In this case, the prosecution was undone by a decision to drive the passengers home while the officer with the accused stayed with the car to be towed. When a s.10(b) Prosper violation was added on, an exclusion of evidence resulted. This case provides a good overview of the caselaw on this point and a positive result for the defence.

Evidence

[2] Cst. Hall was the only Crown witness. The breath samples were administered by Cst. Debruin and the Certificate of Analysis/Certificate of Qualified Technician was put in as evidence by filing with the court. Defence did not call any evidence and identity was not in dispute.

[3] Cst. Hall testified that the Big River RCMP detachment received a call prior to 2:00 p.m. on June 2, 2018, from the Miami Gas Bar on the Big River First Nation. The call was regarding a possible impaired driver with four intoxicated people inside a dark-coloured SUV.

[4] ... The detachment then received four consecutive calls with the same vehicle description regarding a fight at the Miami Gas Bar.

[5] Cst. Duval was requested as back-up due to the number of suspects involved and was the first to arrive at the Miami Gas Bar. An individual at the gas bar advised him he had been assaulted by the people in the vehicle.

[6] Cst. Hall pursued the suspect vehicle with his emergency lights activated but it did not stop. During the initial chase, Cst. Hall noted nothing unusual about the driving pattern other than it not stopping. However, after following the vehicle for approximately 20 seconds, it veered left heading towards a quad trail leading into the woods then suddenly veered right coming to a full stop with the driver side wheels partially submerged in the water on the beach front of Miami Beach.

[7] Cst. Hall located four people in the vehicle, Cory Whitefish (accused) was the driver, one individual was in the front passenger seat and two others were in the back seat. Empty alcohol bottles were strewn all over the vehicle including a half empty bottle of Smirnoff Vodka located in the middle console. All individuals were advised they were being detained for a potential assault.

[8] Cst. Hall removed and handcuffed the accused and front passenger. Cst. Duval handcuffed and secured the two back passengers in his police vehicle. Cst. Hall observed the smell of alcohol, glossy eyes, slurred speech and staggered walking with respect to the accused when removing him from the vehicle and advised he was also being detained for an impaired investigation. He read the approved screening device (ASD) demand verbatim from his card at 16:48 hours (or 4:48 p.m.). The accused advised he understood. The ASD breath sample resulted in a fail reading and the accused was advised he was under arrest for impaired operation of a vehicle. He was read his rights to counsel at 16:51 hours (or 4:51 p.m.) which Cst. Hall said were understood. The accused responded, “I will maybe call Legal Aid”.

[9] Cst. Hall read the breath demand at 16:53 hours (or 4:53 p.m.) which the accused appeared to understand. Cst. Hall did not testify to any signs of impairment during his time alone with the accused. Cst. Duval was dealing with the other individuals. No charges were laid on anyone with respect to an assault.

[10] Cst. Hall took pictures of the vehicle and area but is not sure as to the time they were taken. Cst. Duval took the others home, leaving Cst. Hall with the vehicle and the accused, waiting for the tow truck from the Town of Big River, approximately 40 minutes from the First Nation. It was daylight with no other vehicles or individuals in the vicinity as this is not a high traffic area. Cst. Hall could not recall who called the tow truck, the exact time the call was made or when the tow truck arrived but knows he was still waiting at 17:07 hours (or 5:07 p.m.)....

[11] Cst. Hall claims it is standard policy to not leave seized vehicles unattended due to the potential for damage or theft and that is why he stayed with vehicle until being relieved by Cst. Duval. He did not attempt to find out who the registered owner was or to arrange for someone to pick it up as it was legally impoundable for 30 to 60 days.

[12] After being relieved by Cst. Duval, Cst. Hall arrived at the Big River RCMP detachment at 17:48 hours (or 5:48 p.m.). The accused was taken immediately to the telephone room as he requested a call to Legal Aid. The 24-hour duty counsel line was called at 17:54 and 18:01 hours (or 5:54 and 6:01 p.m.). Cst. Hall dialed Legal Aid and handed the phone to the accused. Two calls were made where the accused was put on hold totaling approximately seven minutes. Cst. Hall advised the accused he would have to wait on hold until someone answered but Mr. Whitefish started to get annoyed as no one was answering. The accused stated, “that’s fine; we’ll call again later”. There was a phone book in the room but Cst. Hall did not open it or hand it to him to advise he could call other counsel if desired.

[13] Cst. Hall took the accused into the interview room to begin the observation period for the administration of the breath samples without the benefit of a legal counsel call. Cst. Hall performed a mouth check and ensured the accused did not have anything to eat or drink during this 15-minute observation period.

[14] Cst. Debruin was the approved technician administering the breath samples while Cst. Hall was observing the accused. The accused provided his first breath sample at 18:22 hours (or 6:22 p.m.), one hour and 29 minutes after the breath demand.

[15] After the first breath sample, the accused requested to call Legal Aid again and was returned to the telephone room. Cst. Hall dialed Legal Aid at 18:24 hours (or 6:24 p.m.) and, when he heard the voice of John Hardy, he handed the phone to the accused. Cst. Hall left the room and watched from the door window with call concluding at 18:29 hours (or 6:29 p.m.).

[16] Cst. Hall returned the accused to the observation room to conduct another 15-minute observation period. The second sample was invalid as a result of mouth alcohol and another 15- minute observation period was conducted. The third sample was also invalid as a result of mouth alcohol. After another 15-minute observation period, a fourth valid sample was taken at 19:50 hours (or 7:50 p.m.), two hours and 57 minutes after the initial breath demand.

[17] Cst. Debruin handed the completed Certificate of Analysis/Certificate of Qualified Technician to Cst. Hall who then read and served the Certificates and Notice of Intention to the accused. He was kept in cells after the samples were obtained due to a warrant for arrest on other charges and was released on a Justice of the Peace Undertaking the following day on June 3, 2018.

[18] During cross-examination, Cst. Hall stated that all individuals at the scene staggered when they walked but could not recall whether the accused staggered. He testified they all looked and acted visibly intoxicated but could not provide specific details as to the indicia of impairment nor did he recall having conversations with any of them. He later testified it was Cst. Duval who made these impairment observations of the individuals and not himself.

[19] During cross-examination, defence played a video recording of the accused in the interview room and he asked Cst. Hall to point out specific instances of impairment displayed, but he was unable to do so. On the video, the accused was enunciating his words clearly and had no difficulties having an articulate conversation. Cst. Hall testified that while the accused’s speech previously appeared to be slurred, he now agreed it could have also been from a speech impediment or having a lisp which affected his “s’s.” I was also able to detect a speech impediment. Cst. Hall testified that he noticed the slurred speech during the observation periods. In addition, he could not point out any specific instance where and when he saw Cory Whitefish walking with difficulties.

Analysis: As Soon as Practicable

[25] The importance of samples being taken as soon as practicable was addressed by our Court of Appeal in R v Burwell, 2015 SKCA 37 at para 118, 472 Sask R 1:

The purpose of s. 258(1)(c) of the Criminal Code is to provide the Crown with an evidentiary shortcut to proving impairment.  It is a fair statement that the “as soon as practicable” criterion was enacted to ensure that the presumption created by the section operates fairly and that the breath testing leads to accurate results.  As such it protects against the manipulation or skewing of the results by delaying testing to allow for the absorption of alcohol into the accused’s blood.  The outer limit of this criterion is two hours after the offence was alleged to have been committed as regards to the first sample. [emphasis mine]

[26] Upon review of the case law, I find there are three criteria necessary to consider when assessing tow truck delay:

1.      Whether it was necessary to call the tow truck;
2.      Whether the call was made with promptness;
3.      Whether the officers acted reasonably when waiting as long as they did:
4.       before calling a tow truck a second time; and
5.      calling for a back-up officer to wait with the vehicle.

[27] This analysis is guided by reasonableness and not just on the calculation of how long the various steps took.  At the core of this issue is the reasonableness of the delay, where there is a delay, in all the circumstances, and not the amount of time between the breath demand and the taking of the samples.  When there is an indication of any unusual amount of time between the demand and sample, the Crown is required to provide the reasonableness of that time lapse.

1. Whether it was necessary to call the tow truck.

[28] The Big River RCMP detachment has a standard policy to not leave seized vehicles unattended due to the potential for damage and theft.  Although these were not exigent circumstances, Cst. Hall’s testimony of this potential for damage if left in this area unattended has truth to it. However, police policy does not excuse a failure to obtain breath samples as soon as practicable (R v Forsythe, 2008 MBQB 316 at para 11, 234 Man R (2d) 273[Forsythe]).

[29] I am convinced it was reasonable in the circumstances in the calling of the tow truck. ...

2. Whether the call was made with promptness.

[30] ... Cst. Hall does recall that the tow truck had still not arrived at 17:07 hours (or 5:07 p.m.). He left for the detachment with the accused after Cst. Duval relieved him.

[31] It is difficult to assess whether the call was prompt considering we do not have that information. Cst. Hall arrived at the detachment at 17:48 hours (or 5:48 p.m.) and, with the breath demand at 16:53 hours (or 4:53 p.m.), that is a difference of approximately 55 minutes. The time it takes to drive from Big River First Nation to the Town of Big River is approximately 40 minutes. In my estimation that would leave approximately 15 minutes of an unexplained gap where the call could have been made, if it was made by Cst. Hall.

[32] Fifteen minutes may not be detrimental overall, but it is significant when considering the lack of Crown evidence in explaining the nature of that delay.

3. Whether the officers acted reasonably when waiting as long as they did: a. before calling a tow truck a second time; and
b. calling for a back-up officer to wait with the vehicle.

[33] Cst. Hall is uncertain as to who called the tow truck. Consequently, there is no evidence as to when the first call was made, who made that call and whether there was a second call. The distance between the First Nation and the town is approximately a 40-minute drive. In calculating the time from when the breath demand was made to the arrival at the detachment, there is a 15- minute unexplained gap as to when the call could have been made if it was made prior to Cst. Duval’s arrival.

[34] The crux of the defence argument on this issue is whether Cst. Hall staying with the vehicle until the arrival of the tow truck or waiting to be relieved, was reasonable in the circumstances, considering the delay to the accused providing a breath sample as soon as practicable. They say the vehicle could have been left at Miami Beach or Miami Gas Bar with instructions to the tow truck driver as to where to locate it. It was daylight, not a high traffic area, hardly any people around and little to no risk of the vehicle being vandalized.

[35] Another option to avoid delay was for Cst. Duval to stay with the vehicle and wait for the tow truck, as opposed to driving home non-arrested individuals with no jeopardy where there was little to no evidence of their intoxication levels. ...

[36] Defence submits it is significant Cst. Hall did not know when he was going to be relieved or when the tow truck would arrive. In essence, they were waiting in limbo for what was, and could have been, a potential unknown lengthy period of time. This waiting period can cause psychological stress to any accused. Police policy does not have primacy over an accused’s Charter rights as they are considered sacrosanct.

[37] Defence submits the reasons for the delay should not be satisfactory to the court when there were alternative options available. The vehicle did not need to be overseen while the accused was detained and arrested. Driving home non-arrested people not in any jeopardy is a weak reason to justify breaching an accused’s Charter rights. Cst. Hall made broad and vague comments about the intoxication level of the others and why they had to be driven home. Police could have called family members to retrieve them, but it is unclear whether any other options were explored. To reiterate, police policy does not excuse a failure to obtain breath samples as soon as practicable.(Forsythe, para 11).

[38] In R v Weichel, 2016 SKPC 157, in paras 52 and 53, it was held that the police did not have to remain at the scene until the arrival of the tow truck as there were alternative options available.  One option was that the seized vehicle could easily have been parked in one of the parking lots and left there until the tow truck arrived.  The Traffic Safety Act, SS 2004, c T-18.1 [TSA] (s. 148) requires that a motor vehicle be “immobilized or impounded.”  It does not mean that it has to be towed away.  It was held in Weichel that parking a vehicle in a safe place, locking it, and seizing the keys amounted to immobilization.  The Court found that there was no compelling reason, or need, to wait for the tow truck especially when there was no indication when one was expected to arrive.  In this case, one option was leaving the vehicle and keys with the manager at the Miami Gas Bar for the tow truck driver to pick up as the manager was the initial caller.

[39] In R v Spice,2014 SKPC 69, ... The police officers did not provide sufficient justification for towing the vehicle, nor did they satisfactorily explain the 22 minutes that was spent at roadside. There was no evidence the vehicle needed to be towed as it was lawfully parked in a well-lit, commercial area. The officers did not hurry the process by checking if another tow truck was available or calling for another officer to attend the scene to wait for the tow truck.

[47] I previously found the call for a tow truck reasonable in the circumstances. However, what is not reasonable is Cst. Hall remaining with the vehicle and the accused while Cst. Duval drove people home that were not arrested or in any kind of jeopardy. It was still daylight and Miami Beach is not far from the Band Hall. What resulted was the accused’s detention at the roadside waiting in limbo anywhere up to and including 15 minutes not knowing what was happening and Cst. Hall not knowing when he would be relieved or when the tow truck would arrive. I am satisfied that the breath samples were not taken as soon as practicable pursuant to then s. 254 of the Criminal Code. In addition, the total delay of two hours and 57 minutes from the breath demand to the second sample is not as soon as practicable. [PJM Emphasis]

[48] The Crown has failed to establish that the breath samples were taken as soon as practicable, and the benefit of the presumption is lost. I am satisfied the accused’s ss. 8 and 9 Charter rights have been breached.

Whether the accused was provided an opportunity to speak to counsel prior to providing his first breath sample thereby breaching section 10(b) of the Charter.

[49] The accused arrived at the detachment at 17:48 hours (or 5:48 p.m.) where he was immediately taken to the telephone room to make his phone call to legal counsel. Two calls were made to the 24-hour duty counsel line where he was on hold for approximately seven minutes. The accused was beginning to get annoyed when no one answered the phone and stated, “that’s fine; we’ll call again later”.

[50] The accused was then taken to the interview room for the observation period without the benefit of speaking to legal counsel. After the accused provided the first breath sample, he requested to call Legal Aid again and was returned to the telephone room. After successfully speaking to legal counsel, he was taken back to the interview room to commence the second observation period.

[51] Defence submits the alleged waiver as set out by the Crown is neither clear nor equivocal. As there was no Prosper warning, the accused is not required to provide any evidence until such time that he speaks to legal counsel. ...

[52] In Prosper, the Prosper warning is meant to ensure a detainee understands exactly what they are giving up when they abandon their attempts to obtain legal advice without delay. At p. 274, it described the required Prosper warning and its legal triggers as follows:

I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity.

[53] The Ontario Court of Appeal in R v Smith (1999), 135 CCC (3d) 453 [Smith] ...

[54] Smith held that whenever a detainee asserts their desire to exercise the right to counsel (either expressly or by not waiving their right to counsel) “the police are obliged to cease questioning and are under a duty to facilitate the exercise of that right” (see: para 15).

[55] ... When the accused here said, “that’s fine; we’ll call again later”, Cst. Hall should have inquired as to what he meant by “later”. Did the accused mean he did not want to call a lawyer and was prepared to give a breath sample without the benefit of legal counsel, or did he mean “let’s wait a while and we’ll try again in a bit?”. Cst. Hall did not hand him a phone book or provide any options other than taking him directly to provide a breath sample.

[58] I find the accused was diligent in exercising his rights to counsel even up to the point where he requested to speak to Legal Aid again after the first sample was taken. This does not appear to be an accused who did not want to speak to counsel.

[60] As the accused still desired to speak to counsel after the first sample shows he did not waive that right. The word “later” with nothing more is vague, ambiguous and not at all clear as to the accused’s intention. There is no evidence provided by the Crown that the accused wanted to blow into the breathalyzer. Cst. Hall did not take further steps to ensure whether he wanted to call other counsel. It is not reasonable to expect the accused to pick up the phone book without being advised he could do so as Cst. Hall was handling the phone calls up to this point. The accused did not decline to call another lawyer; that option was never presented to him.

[61] For the reasons explained above, I find there to be a breach of the accused’s s. 10(b) Charter right.

24(2) Analysis

[71] ... The impact of the breach was significant enough as the accused provided breath samples without the benefit of a lawyer call. He may have had other options had he been able to speak to counsel.

[75] After considering the Grant factors, I find that admission of the Certificate of Analysis/Certificate of Qualified Technician would bring the administration of justice into disrepute.

Impaired

[77] There were three other intoxicated people in the same vehicle with strewn empty alcohol containers throughout. Cst. Hall was responsible for removing the accused and front passenger from the vehicle but did not testify to the time and proximity when each of them were removed and handcuffed, whether it was at the same or different times. It is difficult to assess where the smell of alcohol came from without this information.

[78] During cross-examination, defence played a video recording of the accused in the interview room where he can be heard speaking clearly and articulately with Cst. Hall. He has a noticeable speech impediment, but there was nothing else out of the ordinary. Cst. Hall was unable to point out specific instances of impairment on the video. While Cst. Hall previously testified to slurred speech, he now concedes that it could have also been from having a lisp which affected his “s’s” or a speech impediment. Cst. Hall then testified to noticing the slurred speech during the four 15- minute observation periods. Defence asked him to point out specific instances where the accused exhibited difficulty walking but he was unable to do so.

[80] It was stated in R v Stellato, 1993 CanLII 3375 (ON CA), 1993 ONCA 3375, 78 CCC (3d) 380, that the Crown need only prove any degree of impairment of the person’s ability to drive, no matter how great or minor.  With respect to Mr. Whitefish, the remaining evidence does not convince me beyond a reasonable doubt that Mr. Whitefish’s ability to operate a motor vehicle was impaired to any degree by alcohol.

Conclusion

[82] I have found ss. 8 and 9 Charter breaches with respect to the tow truck delay. In addition, the Crown has also failed to establish both breath samples were taken as soon as practicable pursuant to then s. 254 of the Criminal Code, and the benefit of the presumption is lost.

[83] Having excluded the Certificate of Analysis/Certificate of Qualified Technician from the evidence, there is no evidence of the accused’s blood alcohol level at the time of the alleged offence pursuant to s. 258(1)(c). I thereby acquit the accused of the exceed .08 charge.

[84] .... I conclude the Crown has not proven beyond a reasonable doubt the charge of impaired driving and I acquit the accused on this charge.

R v Neville, 2022 ONCJ 110

[March 8, 2022] Sentencing: Conditional Discharge for Living off the Avails [Justice P.T. O'Marra]

AUTHOR’S NOTE: As with most unusual sentences on the low end of the range, the facts of the case dictate the result. However, this case provides a precedent for a discharge where the person assisting in the pimping of another has an unfortunate background, the pimping occurs over a short period of time, and the accused has taken significant steps towards their own rehabilitation. The case provides a good overview of the principles for imposing a conditional discharge. 

Circumstances of the Offence

[10] On May 9, 2019, KA advised Mr Bennett that she no longer was working for him. Mr Bennett told KA that she must pay a “leaving fee” in the amount of $5,000 if she wanted to continue to work in the industry. Over a five-week period, KA e-transferred $5,000 to Mr Bennett and Ms Neville.

[11] As part of the agreed facts of this case, it was conceded that Ms Neville also turned over the money she earned selling sexual services to Mr Bennet, as well.

[12] On May 12, 2020, Ms Neville was arrested. Mr Bennett is a gang member and co- accused in this case. Mr Bennett has not set a date or resolved any of his charges.

Ms. Neville's personal circumstances

[14] Ms Neville’s parents separated shortly after her mother found out she was pregnant with her. Her father moved out of the province, and she was raised by her mother.

[15] As a teenager, her relationship with her mother became strained. Her mother had overdosed several times and needed to be hospitalized. As a result, at 13 years old she reconnected with her father and moved in with him in Alberta. Her residency with her father was only three months. After a fight between them, her father drove her to the airport and left her there with no money or food. Upon her return to Ontario, Ms Neville became very independent and distanced herself from her family.

[17] Ms Neville attended high school until grade 11 and then dropped out and started to work in the industry. At sixteen years old she met an older male who tricked her into working in the industry. In her letter to the court dated January 18, 2022, Ms Neville stated that stripping evolved into prostitution and performing sexual acts for money very quickly. ...

[18] Ms Neville has demonstrated insight into her actions and stated in her letter dated January 18, 2022, the following,

The thought of myself putting another female through those things disgusts me. There are not words I can say besides that I am sorry and I’m ashamed of myself and it will never happen again. I have worked very hard to get myself out of the lifestyle and unlearn the things I [was] thought was normal.

[21] After Ms Neville was arrested, she learned that she was pregnant, and Mr Bennet was the father. After the birth of their daughter in February 2020, the Children’s Aid Society became involved due to the nature of the criminal charges that they had incurred.

[23] It is worth noting that due to Ms Neville’s progress the Children’s Aid Society recommended that the Family Court supervision order be terminated.

[24] A presentence report was ordered and prepared. Mr McRae took offence with comments made by the author of the report, Ms Beckford, as well as the officer in charge of the case, Officer Mitchell. Regarding Ms Neville’s character and attitude Ms Beckford stated the following.

The Subject, did not accept responsibility for her actions, initially stated that she did not recall what had occurred however later provided details indicating the that the victim lied. She did not express any remorse for her behaviour or expressed any empathy towards the victim.

[25] Officer Mitchell stated that all though Ms Neville was cooperative during the investigation that phone records confirmed that she was untruthful about the incident to the police. He went on to state how this type of offence “victimizes a person who is already in a vulnerable position...he is of the opinion that the subject sentence should reflect that of the damage to the victim.”

[26] I find those comments and opinions unhelpful. The purpose of the pre-sentence report is to assist the judge in arriving at a just sentence that reflects the relevant circumstances of the offender and accords with the goals of sentencing. Its not to voice the author’s personal views of the offender’s behaviour and attitude. See: R. v. McPherson, 2013 ONSC 1635 (CanLII), [2013] OJ No. 1254; R. v. Green, 2006 ONCJ 364 (CanLII), [2006] OJ No. 3925, paras. 12-16 and R. v. Morgan, 2018 ONSC 2007, para. 13.

[27] The content of a pre-sentence report is stipulated by s. 721(3) of the Code. Unless otherwise specified by the court, the report is to contain information on the offender's "age, maturity, character, behaviour, attitude and willingness to make amends."

[29] In his book The Law of Sentencing (Toronto: Irwin Law, 2001), Professor Alan Manson states at p. 187: "There is judicial agreement that the PSR should not include any facts or commentary which relate to the offence or the offender's role in it."

[30] In R. v. Bal, [2014] O.J. No. 2645 Trotter J. referred, at para. 13, to the comments of Chief Justice MacKeigan in Regina v. Rudyk (1975), 1 C.R. (3d) S 26, where he stated as follows, at p. S - 31:

I would here urge that a pre-sentence report be confined to its very necessary and salutary role of portraying the background, character and circumstances of the person convicted. It should not, however, contain the investigator's impression of the facts relating to the offence charged, whether based on information received from the accused, the police or other witnesses, and whether favourable or unfavourable to the accused. And if the report contains such information the trial judge should disregard it in considering sentence.

[31] I have disregarded that portion of officer Mitchell’s comments regarding Ms Neville’s integrity and honesty. I also do not think it is within the purview of the officer and outside of the limits of the pre-sentence report to comment on the nature of the sentence to be imposed. In this case, the victim impact statement is a factor that I have taken into consideration. I will turn to that in later in my reasons.

The Victim Impact Statement:

[35] KA has been profoundly impacted by this offence. She detailed that she lives in fear for her safety and is concerned over any retaliation from Mr Bennett and Ms Neville. She is hesitant to go into public spaces or hold a public job due to anxiety and feelings of shame. She suffers from anxiety and depression. She feels isolated and is unable to trust anyone. KA was impacted financially as well over missed education opportunities and the lost of money that was turned over to Mr Bennett and Ms Neville.

Applicable Principles

[40] Section 286.2(1) of the Code, provides that a person who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

[44] The Crown has relied on higher court decisions of Morgan and R. v. A.M. and M.P., 2020, ONSC 7919 which states that the prevailing sentencing goals in cases of this nature is general and specific deterrence. See: Morgan, para. 17 and A.M. and M.P., at para. 9. However, the facts in both cases are distinguishable from the case here due to a higher degree of moral blameworthiness and the exploitive nature of the relationship. Significant jail sentences were handed down.

[45] There are several significant mitigating factors in this case. Ms. Neville pleaded guilty, which was a weighty factor. She resolved her matter before Mr Bennett has set a date for a preliminary hearing or trial. Ms Neville’s guilty plea did take on further importance as there may have been legitimate section 11(b) concern and meritorious triable issues, including an attack on the search warrant for Mr Bennet’s phone, that may have impacted Ms Neville’s privacy interests.

[46] Ms Neville has no previous criminal record. She has been compliant with her release order over the past 22 months.

[47] Ms Neville was a sex trader worker that was exploited and victimized by pimp(s) since she was 16 years old. She was involved in an unequal relationship with Mr Bennet The defence of duress is a high threshold to meet, however, under these circumstances, I consider her vulnerability with very limited options, a mitigating factor.

[49] In my view, Ms Neville has demonstrated a greater understanding of power and control dynamics and imbalances in equal and healthy relationships.

[50] Ms Neville has obtained a mortgage broker and agent licence and is seeking employment.

[51] Ms Neville advised that she no longer uses drugs and alcohol.

[53] This offence was selfish and involved the calculated exploitation of a vulnerable young woman. Not only did KA have to turnover her earnings to Ms Neville and Mr Bennet, but she also was compelled to buy her freedom. Although Mr Bennet seemed to have the most control over KA, Ms Neville exerted some control over KA in that she made sure monies were turned over at the end of the night to Mr Bennet.

[54] The victim impact statement reflected economic effect that this offence had on KA. She worked six or seven nights of prostitution. She estimated that she was forced to turn over a minimum of $25,000 to Mr Bennet and Ms Neville. She also had to pay the $5,000 “leaving fee”.

[55] I cannot say that this was a sophisticated operation based on the agreed statement of fact. Ms Neville was not the organizer nor the leader of the operation. As already mentioned, Ms Neville was a sex trade worker. I infer that Ms Neville had a strong attachment to Mr Bennet as she became pregnant and worked for Mr Bennet. There was no reference to any other sex trade workers that were involved aside from KA. In my view, this was a small operation with little planning involved.

[57]  The exploitive nature of the relationship lasted approximately 2 1⁄2 months.

[58]  There was no reference to explicit threats, no implied threats were referenced in the agreed statement of fact and no actual threat of violence was used. However, there was an argument that led to KA leaving the operation. KA indicated a general fear for her safety, but specifically she fears that Ms Neville will retaliate against her. However, the reasons for this fear were never detailed.

Fit Sentence

[61] Section 730(1) of the Code sets out the statutory test for the court to apply in deciding whether to grant a conditional discharge.  The test is twofold.  The court must be satisfied that it is in the best interests of the accused and the court must be satisfied that it is not contrary to the public interest that the accused receive a discharge.  I am mindful of the guidelines set out for the imposition of a conditional discharge by the Ontario Court of Appeal in the case of R. v. Sanchez-Pino, (1973) 1973 CanLII 794 (ON CA), 11 C.C.C. (2d) 53.

[63] I have not found any reported decisions in this country where a conditional discharge or a suspended sentence was imposed for an offence contrary to section 286.2 of the Code. Nevertheless, discharges are not restricted to trivial matters. See: Regina v. Vincente (1975), 18 Crim. L.Q. 292 (Ont. C.A.).

[65] The Court of Appeal in R. v. Joseph, 2020 ONCA 733 made the following comment on Robitaille when considering range of sentence for a section 286.2 offence:

140 ... Although it will be uncommon, in exceptional circumstances even lower sentences may be imposed for sexual commodification offences, such as the eight-month sentence in R. v. Robitaille, 2017 ONCJ 768, 400 C.R.R. (2d) 51 (Ont. C.J.), a case addressed in more detail below. (Emphasis added)

[67] In terms of a discharge or a suspended sentence, in Alberta under the former “living on the avails” provision a court did impose a conditional discharge, R. v. Manion, 2005 ABPC 35. Factually though it was a typical case from the era involving an owner of an escort agency that operated from the yellow pages – which obviously is a distinguishing feature, and as a result, is not a fair case to compare. However, it does assist in establishing the bottom of the range for the precursor offence provision.

[69] The imposition of a conditional discharge for this offence would be an exceptional sentence and outside of the range. However, in justifying an exceptional sentence the Supreme Court in R. v. Nasogaluak, 2010 SCC 6, at para. 44 stated,

[I]t must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.

[70] In R. v. Lacasse, 2015 SCC 64, at para. 57-58 the court added the following,

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case.

…

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.

[72]  The task at hand is for me to determine whether a non-custodial sentence is to be imposed. In my view, the principles of sentencing will not be served if I sentenced Ms Neville to a custodial sentence to be served in the community as suggested by the Crown.

Is it in Ms Neville’s best interests to grant a discharge?

[74] Where a criminal record will tend to interfere with employment, a discharge should be given serious consideration: Regina v. Myers(1978), 1977 CanLII 1959 (ON CA), 37 C.C.C. (2d) 182 (Ont. C.A.) at 184-5 per Martin J.A.; Regina v. Culley (1977), 1977 CanLII 1965 (ON CA), 36 C.C.C. (2d) 433 (Ont. C.A.), at 435 per Martin J.A.

[75] A discharge is appropriate where the negative consequences of a conviction, whether immediate or potential, outweigh any value gained by stigmatizing the offender with the stamp of a criminal record. A discharge is the most appropriate sentence where the defendant is of prior good character, the offence represents an isolated occurrence, and a conviction may have adverse effects upon the accused’s future which is disproportionate in the circumstances. See: R. v. Elsharawy, 1997 CanLII 14708 (NL CA), [1997] N.J. No. 249 (CA) at para. 32.

[77]  There is no question that a discharge is in Ms Neville’s best interests.

[78]  Now, I turn to the second and most difficult question.

Is it not contrary to the public interest to grant a discharge for Ms Neville?

[79] The second criterion involves a consideration of the gravity of the offence and the public attitude towards the imposition of a criminal conviction rather than a discharge. See: Elsharawy, para. 3.

[80] In assessing whether the discharge is contrary to the public interest, general deterrence is only one factor to consider; the paramount factor to consider is what would be an appropriate sentence for the particular accused in the particular circumstances of the case. Further, it must be noted that a greater sentence, such as a suspended sentence is not necessarily a greater deterrent than a discharge. See: R. v.Sears, [1978] O.J. No. 435, at para. 2 (C.A.)

Conclusion:

[83] The result is that Ms Neville with receive a conditional discharge and placed on probation for a period of twelve months with the following conditions ...