The Defence Toolkit – March 30, 2024: The Agent of Entrapment

This week’s top three summaries: R v Krawczyk, 2024 ONCA 196: #entrapment & Vetrovec, R v Mills, 2024 ONCA 204: accused #presence, and R v BL, 2024 BCCA 108: accused #anonymization.

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R v Krawczyk, 2024 ONCA 196

[March 18, 2024] Charter s.7: Entrapment and Vetrovec Agents [Reasons by Feldman J.A. with M. Tulloch C.J.O. and P.J. Monahan JJ.A. concurring]

AUTHOR’S NOTE: Entrapment doesn't always begin with the first action of a police officer. Typically, it starts with either establishing an agency relationship or when a police officer makes an offer. However, this case illustrates that entrapment can also begin with an independent individual's separate action, who later becomes a police agent.

In this particular case, the Court didn't focus extensively on the exact dynamics of the relationships involved. What's evident, though, is that the police agent contacted the accused before being enlisted as a police agent for this matter. Perhaps unsurprisingly, he alerted the police to the possibility of investigating the accused, even though they weren't previously aware of him as a suspect. Consequently, the police's timeline relied heavily on when the police agent first persuaded the accused to partake in smuggling narcotics into the country.

The crucial question in this case was: who initially lured whom? The dubious character of the police agent played a pivotal role in determining this, and it needed to be thoroughly assessed.

[1] Following a police sting operation, the appellant was convicted of attempting to import cocaine into Canada and possession of $12,500 as proceeds of crime, which he received for the cocaine from a police agent (“PA”). The appellant claimed he was entrapped and sought a stay, but his claim was dismissed. He appeals the dismissal and seeks a stay of the convictions.

Background Facts and Findings by the Trial Judge

[2] The evidence at the trial consisted of an Agreed Statement of Facts, a small number of exhibits, including audio-recordings from wiretapped conversations between the appellant and the PA, as well as the testimony of the appellant and of the PA. Their stories agreed on a number of facts but diverged on others, including on the key issue of who initiated the proposal that the appellant, a Sunwing airplane mechanic, would remove and deliver cocaine from planes.

[3] The story told in the Agreed Statement of Facts commenced on April 4, 2019, when the RCMP began to legally monitor the conversations between the PA and the appellant. However, their communications regarding the drug importation scheme began, according to the PA, at Christmas, 2017, and were not recorded or documented.

The PA’s Testimony

[4] The PA testified regarding his criminal past and his record, which began when he was a youth and included assault, possession of a weapon, possession of cocaine and possession of proceeds of crime. Over the years, he trafficked cocaine and marijuana. For six months in 2015, he also trafficked drugs under the instruction and protection of a corrupt Hamilton police officer.1 During that period, the PA was a paid agent of the OPP, for which he received $80,000.2 After that, he continued as an informant for the OPP, who contacted him every few weeks for information. This led to him eventually informing on the appellant, then becoming a paid agent for the RCMP against the appellant.

[5] Between 2000 and 2018 the PA worked at his brother’s business, an auto body shop in London, Ontario. The appellant also worked there for about two or three years beginning in 2000. The PA next saw the appellant in December, 2017, when the appellant stopped by the body shop.

[6] According to the PA, it was the appellant who, during this visit, first initiated the discussions concerning the importation of drugs. The PA agreed that the appellant’s purpose in coming by was to see the PA’s brother, who owned the body shop. However, in the course of that visit, the appellant told the PA that he was now a certified airplane mechanic working on planes for Sunwing at Pearson Airport, and asked him if he had contacts “down south” to move cocaine on airplanes that he was servicing. The PA responded that he could probably help the appellant.

[7]....The PA denied that he had initiated the idea or that he offered the appellant the opportunity to assist in the importation of cocaine.

[8] In examination in chief, the PA said that in 2000, he and the appellant did not talk about drugs. In cross-examination, he claimed that the appellant nevertheless knew he was a criminal and a drug dealer because of his flashiness and nice car and because they had mutual friends, although he did not name any.

[9] Their next interaction after the Christmas 2017 visit, according to the PA, was in February or March of 2018, when he introduced the appellant to someone from Jamaica who was involved in the drug trade. The PA also said that at a later meeting, the appellant showed him a few kilograms of cocaine divided into halfkilogram packages that the appellant had removed from an airplane and for which he needed a buyer. The PA claimed that he lined up a buyer who purchased a half-kilogram and subsequently a full kilogram of cocaine from the appellant, and that the appellant gave him $1,000 for his services. Next, in June 2018, the appellant gave him nine ounces of cocaine to sell, but the PA eventually returned it to him unsold. The appellant told the PA he would get 30% of the value of the cocaine for off-loading it from the plane.

[11] According to the PA, from July 2018 to March 2019, he and the appellant continued to discuss the importation of cocaine by hiding it on airplanes, and he introduced the appellant to two drug dealers who would potentially be able to load the cocaine in Jamaica, but they never did.

[12] In March 2019, the PA signed a Letter of Acknowledgement whereby he became an RCMP agent to investigate suspected criminal activity by a number of targets he identified, including the appellant. The PA was to be paid $275,000, as well as a maintenance fee of $3000 per month. He explained that the high amount was due to the fact that the crime was the importation of cocaine. He claimed that he decided to become a police agent in order to start a new life outside the province, but agreed that money was the main motivating factor.

[13] In June 2019, the PA signed a second Letter of Acknowledgement where a further target was added and the compensation was raised to $400,000.

[14] Once the PA became an official RCMP agent, all of his interactions with the appellant were recorded and were entered into evidence. The content of the recordings is summarized in the Agreed Statement of Facts, which is outlined next.

The Agreed Statement of Facts

[15] On April 9, 2019, the PA and the appellant spoke about the appellant’s ability to conceal and off-load contraband from airplanes. On May 9, the PA introduced the appellant to an RCMP undercover agent, Shawn, who was posing as someone who could load cocaine onto planes in Jamaica. The appellant offered to remove the cocaine in Toronto from behind panels where it was to be hidden in exchange for $12,500.

[18] On June 23, the appellant called the PA, who told him they would do a test run that day with “only one in there”, and the appellant replied that it was “no problem”. The RCMP then loaded a one-kilogram package containing an inert substance into a location on a Sunwing plane that had been predetermined by the appellant.

[19] Before the plane arrived in Toronto on June 28, there were a number of communications between the appellant and the PA regarding tracking of the plane, and the appellant told the PA to get his guy ready for “another one”.

[20] When the plane arrived at 1:10 a.m. on June 28, the appellant and his associate Gianni Ballestrin retrieved the package by entering the back of the plane with a ladder. At 1:41 a.m., the appellant called the PA and asked him to come by, then texted him “12.5”. At 3:35 a.m., the appellant gave the PA the package in exchange for $12,500 cash.

The Appellant’s Testimony

[23] The appellant told a different story of the time leading up to the recorded conversations, and provided additional evidence about the conversations heard on the recordings.

[24] In 2000, the appellant began working at the PA’s brother’s auto body shop in London, Ontario, where he met the PA. The appellant denied that there was an air of criminality about the people he worked with, including the PA. After two to three years, he moved to Toronto and attended Centennial College, graduating as an airplane mechanic. In 2019, he was earning $80,000 per annum working for Sunwing.

[25] In December 2017, while the appellant was living in Kitchener and working for Sunwing, he went to the body shop to see if it was still there. He testified that he did not see the PA on that visit, but rather in January 2018, when he brought his car in to be repaired. He did not know that the PA would be there, and testified that he knew nothing about the PA’s life or reputation. During that visit, he told the PA he worked for Sunwing and they exchanged phone numbers.

[26] He testified that their next contact was when the PA called him and asked if he could take cocaine off an airplane, and that he responded, “absolutely not”. Approximately two weeks later, the PA came to Kitchener, and offered the appellant $2,000 to “do him a favour”. He was offered more the next time. There were further conversations, and the proposed fee was eventually raised to $10,000. The PA told the appellant that all he had to do was take the drugs off the plane.

[27] At the time, the appellant had no criminal record. He said he had never used, possessed or trafficked cocaine.

[28] When the price for the job reached $10,000, the appellant spoke with a coworker at Sunwing, his co-accused, Mr. Ballestrin, and they agreed to do it together. The appellant testified that he decided to get involved because he was having financial problems and needed the money. He stated that it was his understanding that the first time would be a trial run with a “dud” package.

[29] The PA told the appellant that they would need to find a supplier. The appellant acknowledged that, as potential suppliers kept falling through, he became frustrated by the delay of many months. Some time later, the PA told him that he had a supplier and introduced him to Shawn, who, unbeknownst to the appellant, was an undercover RCMP officer. During that meeting, the appellant was told that the drugs would come from Jamaica, hidden in panels in the plane. They discussed the policies and procedures of the CBSA and how the plane could be tracked by GPS.

[30] In a meeting on May 8, 2019, the appellant agreed to take the drugs off the plane for $12,500, $2,500 of which would go to Mr. Ballestrin.

[31]....When he and Mr. Ballestrin delivered the package, he asked the PA for a “ball”, saying he wanted to try cocaine, but he explained that he did not think it would come from the package he was delivering.

Findings by the Trial Judge

[34] The trial judge did not believe the appellant that he thought the package was fake, nor did his testimony raise a reasonable doubt that he knew the package contained cocaine....

....He found his answers to be concocted, and that his explanation that he believed that another four shipments would be duds “had a desperate tone to it”. He rejected the notion that anyone would pay $50,000 for dud deliveries.

[36] The trial judge then addressed the entrapment issue, where the remedy would be a stay of the conviction based on abuse of process by the Crown. He referred to the seminal Supreme Court authority of R. v. Mack, [1988] 2 S.C.R. 903, recently confirmed by the court in R. v. Ahmad, 2020 SCC 11, [2020] 1 S.C.R. 577.

[37] The trial judge stated that the onus was on the accused to prove entrapment on a preponderance of evidence.

[38]....The trial judge concluded that the issue of entrapment depended “to a large degree…on who, as between the accused and the PA, initiated the idea of importing cocaine by hiding it behind panels in airplanes”.

[39] He found that the only evidence that negated the existence of a reasonable suspicion that the appellant was involved in criminal activity came from the appellant, and the trial judge did not accept his evidence. To the contrary, he concluded that the evidence supported the PA’s claim that it was the appellant who approached him for contacts down south in order to import cocaine.

[40] The trial judge stated that he “recognize[d] that the PA also had a credibility problem given his history of criminal activity and his criminal record and the amount of money he was paid as a PA”. However, the trial judge accepted his evidence because he was adamant in chief and in cross-examination that it was the appellant who approached him. He also found that the appellant’s eagerness and his level of experience, which were disclosed in the Agreed Statement of Facts and the taped conversations in 2019, were corroborative of the point.

[41]....Also, his conversation where he said he did not “do bags” and setting the price for retrieving the package suggested some sophistication and some history in the drug trade.

[42] The trial judge concluded:

Simply stated, I find that since the scheme was initiated by the accused, in the spring of 2019, there existed a reasonable suspicion of criminal activity on the part of the accused.

Issue on Appeal and Analysis

[43] The sole issue on the appeal is whether the trial judge erred in law in finding that the appellant had not proved that he was entrapped, by accepting the evidence of the PA without addressing and resolving his critical credibility and reliability issues. These included his history of criminality, lying and deception, and his significant financial motive to lie.

[44] As the Supreme Court stated in Ahmad, at para. 15, the test for entrapment and its rationale set out by the court in Mack has stood the test of time. That test is found in Mack at p. 959:

There is, therefore, entrapment when: (a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides . . . or, (b) having a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.

[45] In setting out this test, the court in Mack explained, at p. 975, that because entrapment occurs where the accused has committed the crime, but did so as a result of an abuse of process by the Crown:

[T]he best way to achieve a balance between the interests of the court as guardian of the administration of justice, and the interests of society in the prevention and detection of crime, is to require an accused to demonstrate by a preponderance of evidence that the prosecution is an abuse of process because of entrapment.

[46] However, while the onus of proof of entrapment is on the accused by a preponderance of evidence, there is an important evidentiary burden on the Crown to prove that before the police offered the accused the opportunity to commit the crime, they had a reasonable suspicion that the accused was already involved in the criminal activity. The purpose is to catch a person in the act of criminality they were already engaged in, not to entice a vulnerable neophyte into becoming involved in criminal activity.

[48] In this case, the only evidence that the police had that gave them a reasonable suspicion that the appellant was already involved in cocaine trafficking or importing before they introduced him to the undercover officer and set up the fake importation of cocaine on June 28, 2019 was from the PA. The PA was the quintessential unsavoury and untrustworthy witness. Yet, nothing the PA said about the appellant’s involvement with drug trafficking was corroborated by the RCMP. No text messages were checked, no surveillance set up.

[49] A trial judge in a judge alone trial is not required to specifically give himself a Vetrovec warning in his reasons because trial judges are presumed to know the law: R. v. Fuller, 2021 ONCA 888, at para. 19....

[50] The appellant submits that the trial judge erred in two ways in his analysis. First, although he made a brief reference to the PA’s credibility problems, the trial judge did not resolve the problems before accepting his evidence, and incorrectly relied on the PA’s “adamance” as a factor in doing so. Second, the trial judge incorrectly found that the appellant’s willingness to participate in the importing scheme in the spring of 2019, over a year after the idea was first discussed with the PA and after a large fee of $12,500 had been agreed upon, amounted to corroboration of the allegation that it was the appellant who first suggested the scheme to the PA.

The Credibility of the PA

[51] The trial judge’s only reference to the PA’s credibility problems was one sentence where he mentioned his history of criminal activity, his criminal record and the amount of money he was being paid.

[52] However, this witness had more than a “credibility problem”. He was a lifelong career criminal. His criminal record began in 1991 as a youth and includes multiple convictions for break-enter and theft, possession of property obtained by crime under $1,000 and over $1,000, possession of narcotics, fail to comply with probation orders, assault, fail to attend court, possession of a prohibited or restricted firearm with ammunition, and possession of narcotics for the purpose of trafficking. His record also discloses a lengthy list of very serious charges that were withdrawn when he was working with a corrupt Hamilton police officer, including robbery, assault, possession for the purpose trafficking and numerous weapons charges.

[53] The PA admitted that he suffered from memory problems as a result of smoking marijuana daily since he was very young and possibly as a result of a number of car accidents. He also acknowledged that he had lied to police and breached the terms of his Letters of Acknowledgement.

[54] He had a significant history of informing on people for compensation. His history included working for a corrupt police officer in Hamilton, where he carried on his drug dealing with impunity, and where he supplied drugs to informants of the corrupt officer, resulting in arrests of buyers from those informants. He had been a paid OPP agent for six months in 2015 receiving $80,000, then continued to be contacted by them for information every two to three weeks thereafter. It was to the OPP that he first reported on the appellant.

[56] None of these seriously significant details were referred to or addressed by the trial judge as part of a credibility or reliability analysis.

[57] Nor did the trial judge discuss the extraordinary size of the fee that the PA was receiving for delivering the appellant. It is a sum which could give any person, never mind a person like the PA who admitted to having “no moral compass”, a motive to lie.

[58] Additionally, when the RCMP officers were interviewing the PA, they made it clear that they did not want to involve people who were not already doing crimes. In addition to $3,000 per month since the inception of the Letter of Acknowledgment, the PA had already received $300,000 by the time of the trial and would receive an additional $100,000 after testifying. There was a clear incentive for the PA to convey the narrative that the appellant was already involved in trafficking and had initiated the importation scheme himself.

[59] The fact that $400,000 was being paid for bringing in a person who said he did not have drug contacts “down south” and therefore needed the PA to supply the drug dealers, and who ultimately did one transaction for $12,500, should have been the subject of serious consideration in the credibility and reliability analysis.

[60] While credibility findings by a trial judge are accorded significant deference by this court, they are not immune from review where the trial judge has failed to weigh and assess a witness’s overwhelming credibility issues. As the Supreme Court stated in R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 82:

[U]nder a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns.

[61] In this case, the trial judge took comfort from the fact that the PA was “adamant” in his testimony. Insofar as “adamant” indicates that the witness was “unshaken” or “unfailingly consistent with the evidence”, it could be a relevant consideration in a credibility analysis. However, the PA was not unshaken or unfailingly consistent.

[62] For example, the trial judge did not refer to the fact that, in his evidence in chief, the PA stated that he told the RCMP during his June 2018 interview that he had never done a drug deal with the appellant. He tried to back track later, stating that he had misunderstood the question, but this was a significant contradiction from his evidence that the appellant had brought him cocaine to sell in the months after the January meeting. It is trite law that a prior inconsistent statement is a potent factor in considering credibility: R. v. P. (G.), 31 O.R. (3d) 504 (C.A.), at para. 46. In this case, it went to the heart of the reasonable suspicion issue: whether there was evidence that the appellant was already a drug dealer before he met the PA.

[63] In addition, being adamant on the critical issue is wholly in keeping with lying to receive the $400,000 compensation. In that context, it does not follow that because he was adamant, what he said was the truth. In any event, the PA was a seasoned court witness and liar, a factor the trial judge did not consider when he relied on his adamance.

[64] To summarize, the trial judge had to address the credibility and reliability problems of the PA. He was an unsavoury witness whose testimony alone, unaccompanied by contemporaneous notes, text messages or other confirmatory evidence, was relied on to decide the key issue on entrapment. While the trial judge acknowledged that the PA had credibility problems, he failed to address how any of those problems were overcome in this case other than by the witness’s adamance in his testimony or by the finding of corroboration from the attitude of the appellant, which I turn to now.

The Finding of Corroboration in the Willingness of the Appellant over One Year Later

[65] Where a witness is of unsavoury character, a trier of fact is required to look at their testimony with caution and to look for confirmation or corroboration from an independent source. To be confirmatory, the evidence must be capable of giving comfort that the witness’s material evidence can be trusted: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 39-40.

[66] In this case, the confirmatory evidence relied on by the trial judge consisted of recorded conversations between the appellant and the PA after April 2019. Those recordings reflect that the appellant was familiar with drug culture and eager to proceed with the importing scheme to get the $12,500. The trial judge reasoned that that familiarity and eagerness, in the spring of 2019, confirmed the PA’s assertion that it was the appellant who initiated the conversation with him about importing drugs together in December 2017.

[67] There are a number of problems with this reasoning. First, the trial judge did not test this reasoning against the rest of the evidence before him. For example, he did not consider how likely it was that an airplane mechanic with a good job and no criminal record, would ask a person he hardly knew and had not seen in approximately 15 years about entering into an illegal scheme to import drugs. Versus how much more likely it was that a career drug dealer and informant, upon finding out that a person he came into contact with had access to planes at the airport, would try to talk that person into importing drugs at the airport.

[68] In addition, the trial judge did not address the fact that the appellant had been communicating with the PA about importing cocaine for a year after they agreed to try to do it, giving the appellant significant exposure to the drug culture and vernacular by then. Also by that time, the appellant had agreed to the scheme and was anticipating a payout. The fact that he was willing and eager in 2019 did not speak to who had initiated the scheme in 2017.

[69] The entrapment doctrine is designed to avoid punishing previously innocent people for failing to pass a random test of their virtue. Relying on the appellant’s attitude toward the importing scheme after it was already initiated, as the only confirmatory evidence that it was he who initiated it, turns the entrapment doctrine on its head. The question on an entrapment hearing is not how excitedly or emphatically the accused failed a random virtue test, but whether there was in fact a random virtue test in the first place. [Emphasis by PJM]

[70] This was not a case, as in R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, where the trial judge’s reasons were sparse yet addressed the key issue. Here, the trial judge acknowledged the PA’s credibility issue in his reasons, but he failed to address how he reconciled it with his decision to accept that evidence as true.

Conclusion

[71] The purpose of the entrapment doctrine is to deter the police from enticing and virtue testing innocent people into committing crimes. That is an abuse of process.

[72] The appellant, a person with no criminal record, was recruited by the RCMP, through a police agent, to commit the offence of attempting to import cocaine into Canada for $12,500.

[73] The PA was a career criminal in drug and weapons crimes with a history of informing on other people in exchange for money and other advantages, including judicial immunity. He was an admitted liar who was paid the enormous sum of $400,000 plus $3,000 per month to implicate the appellant and others.

[74] The only evidence that the RCMP had reasonable suspicion that the appellant was already involved in criminal activity before they gave him the opportunity to commit the importing offense came from the PA, with no contemporaneous confirmatory evidence.

[75] The issue on the entrapment hearing was whether it was the appellant or the PA who proposed the idea of importing cocaine from Jamaica on planes. If it was the appellant, then the RCMP had reasonable suspicion that he was already involved in drug crime, allowing them to offer him the opportunity to commit the importing.

[77] I conclude that the trial judge’s assessment of the PA’s evidence was insufficient for him to conclude that the Crown had met its evidentiary burden. His assessment was perfunctory and failed to come to grips with the PA’s significant credibility problems. In particular, in the context of analyzing whether there was a possible abuse of process by the police through their agent, the fact that the PA was receiving over $400,000 to recruit the appellant is a shocking piece of evidence that had to be carefully considered in the analysis.

[78] I further conclude that the evidence of the appellant’s attitude and drug familiarity over a year after he and the PA were working together could not, on its own, constitute confirmation of the allegation that a year earlier it was the appellant and not the PA who initiated the importing scheme.

[79] I would therefore allow the appeal, quash the convictions, affirm the finding of guilt in the court below, and order a new trial limited to the issue of the appellant’s motion for a stay based on entrapment: see R. v. Pearson, [1998] 3 S.C.R. 620, at para. 16; R. v. Braithwaite, 2023 ONCA 180, at para. 12.

R v Mills, 2024 ONCA 204

[March 24, 2024] Accused Presence at Trial: Or a pre-trial conference? [S.E. Pepall, J. George, J. Dawe JJ.A.]

AUTHOR’S NOTE: Typically, an accused individual must be present in court for every stage of their trial or sentencing. In this instance, the Court of Appeal invoked the principles and case law related to s.650(1) of the Criminal Code to overturn a guilty plea. This decision arose because the accused was absent during a pre-trial conference where discussions took place about continuing the sentencing process. These discussions included whether the accused wished to proceed, even if it meant losing the ability to appeal a deportation order resulting from the court's sentence.

A. OVERVIEW

[1] The appellant pleaded guilty to a charge of failing to remain at the scene of a fatal traffic accident and received a sentence of 18 months’ imprisonment. He appeals against his conviction on two separate but related grounds, and also appeals against sentence.

[2]....As a result of his conviction and sentence, he is now subject to deportation without any right to appeal his removal on humanitarian or compassionate grounds.

[3] On his conviction appeal, the appellant maintains that his guilty plea was not properly informed because he was unaware of these collateral immigration consequences when he entered it. He argues further that his right to be present during his trial was then violated when the trial judge conducted what was, in effect, a post-plea inquiry with the appellant’s counsel, in the appellant’s absence, into the appellant’s knowledge of these collateral consequences. On his sentence appeal, the appellant seeks to have a reduced sentence imposed that would preserve his immigration appeal rights.

[4] We would allow the conviction appeal and order a new trial, on the basis that the appellant was improperly excluded from his trial when matters affecting his vital interests were discussed between the trial judge and his counsel in his absence, in circumstances where it is evident that the trial judge would have made further inquiries of the appellant concerning the validity of his plea if she had been apprised of the true situation. We are satisfied that, in the circumstances here, the appellant’s exclusion from the proceedings gave rise to a miscarriage of justice that cannot be cured by applying the proviso.

B. THE FRESH EVIDENCE APPLICATION

[5] The appellant seeks to adduce fresh evidence, consisting of his own affidavit and an affidavit from his trial counsel; transcripts of their cross-examinations; and an affidavit from a legal assistant.

[6] The Crown agrees that this fresh evidence falls “outside the ‘Palmer paradigm’” because it is being tendered to assess “the very validity of the trial process”: R. v. Widdifield (1995), 100 C.C.C. (3d) 225 (Ont. C.A.), at p. 232; R. v. Palmer, [1980] 1 S.C.R. 759, 50 C.C.C. (2d) 193. Crown counsel accordingly takes no issue with the admission of the fresh evidence. We agree.

C. FACTUAL BACKGROUND

[7] In November 2019, a cyclist was struck by a motor vehicle and killed. The driver did not stop after the accident.

[8] In March 2020, the appellant was charged with failing to stop after an accident resulting in death, contrary to s. 320.16(3) of the Criminal Code.

(1) The appellant’s March 26, 2021 guilty plea

[9] On March 26, 2021, the appellant re-elected to be tried in the Ontario Court of Justice and entered a plea of guilty on the fail to stop charge. The trial judge conducted a plea inquiry, after which she stated that she was “satisfied this is an informed and voluntary plea”. However, the appellant’s trial counsel did not advise the trial judge that the appellant was a permanent resident of Canada, and the trial judge’s plea inquiry did not include any questions about the appellant’s immigration status, or his awareness of the collateral immigration consequences of his plea and/or of the sentence that he might receive.

(2) The immigration consequences of the appellant’s guilty plea

[10] The appellant, who was 38 years old at the time of sentencing, was born in Jamaica and came to Canada when he was 13 years old. He was granted permanent resident status but has never obtained Canadian citizenship....

[11] Section 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“the IRPA”), deems permanent residents to be “inadmissible on grounds of serious criminality” if they are convicted in Canada of an offence “punishable by a maximum term of imprisonment of at least 10 years”, or if they actually receive a sentence of “imprisonment of more than six months”.

[12] The offence of failing to stop after an accident resulting in death in s. 320.16(3) of the Criminal Code, to which the appellant pleaded guilty, carries a maximum sentence of life imprisonment: Criminal Code, s. 320.21. Because this maximum sentence is greater than ten years’ imprisonment, a conviction for this offence makes the appellant inadmissible under s. 36(1) of the IRPA, regardless of what sentence he actually receives.

[13] However, the appellant’s actual sentence had important consequences for his right to appeal against a removal order on humanitarian or compassionate grounds: see e.g., Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289, at paras. 6-7. In summary, if the appellant had received a sentence of less than six months’ actual imprisonment – including a conditional sentence of any length – he would have been able to appeal a removal order to the Immigration Appeal Division pursuant to s. 63(3) of the IRPA. However, if he received a custodial sentence of six months or more, he would lose the right to appeal: IRPA, s. 64(2).

(3) The June 21, 2021 appearance for sentencing submissions

[14] The case returned before the trial judge for sentencing submissions by videoconference on June 21, 2021. The appellant’s trial counsel argued that the appellant should receive a conditional sentence, while the Crown took the position that he should receive an upper-reformatory sentence of imprisonment. Neither counsel made any mention of the potential immigration consequences of a conviction and sentence.

[15] The appellant’s trial counsel incorrectly affirmed, when asked by the trial judge, that the appellant was a Canadian citizen. However, when the trial judge later asked the appellant whether he wished to say anything on his own behalf, the appellant corrected his counsel about this and informed the trial judge that he was in fact a permanent resident.

[17]....After the appellant left the videoconference, a date for the imposition of sentence was fixed for August 5, 2021.

(4) The June 29, 2021 appearance

[18] After the virtual court proceedings on June 21, 2021 concluded, the trial judge had court staff send an email to counsel to arrange a further virtual appearance before her “some time this week or next”, stating, “I would like [the appellant] to be present as well”. In her email to court staff, which staff forwarded to both the Crown and trial counsel, the trial judge explained that “[t]here was an aspect of the sentencing that I did not return to and would like to address with them.”

[19] This further appearance was ultimately scheduled to occur by videoconference on the afternoon of June 29, 2021. In an email confirming this new appearance with counsel, court staff reiterated: “Please make sure [the appellant] is also present”.

[20] It is undisputed that trial counsel did not tell the appellant about the new June 29, 2021 virtual appearance, and that the appellant did not attend that day. Trial counsel’s evidence is that he understood from the emails that the June 29, 2021 appearance would be “a JPT to satisfy the judge that, in fact, we're continuing with the plea and that there’s no issue as to its voluntariness.”

[21] The trial judge began the June 29, 2021 appearance by explaining that she had brought counsel back because the last appearance on June 21, 2021 had concluded without any further discussion of the immigration issue. She explained further:

I told [the appellant] I would return to that so we could address it, and I did not. My concern as the Court at this point, is of course that it is a valid plea that has been entered, and it has to be voluntary and unequivocal and I am not concerned about those two things.

....And so I just want to be satisfied that he made his plea on an informed basis on that point before I went any further with my judgment, because I want to make sure he understands the consequences there. [Emphasis added.]

[22] Trial counsel responded:

So he understands, and he certainly is sticking with his plea. This is a resolution that he’s told me to follow, and it’s the correct resolution for him. [Emphasis added.]

Crown counsel then asked trial counsel if, without divulging privileged communications, he could confirm:

… that even though there was that apparent miscommunication about the status, you’ve confirmed with him since then that it’s still his wish to have a plea?

Trial counsel responded: “Yes”.

[23] The trial judge then concluded:

All right, thank you very much to both of you, I appreciate that. Based on what I have heard from both of you, particularly you, [trial counsel], about addressing it again with [the appellant], after I brought it up, I am satisfied that it would be a voluntary, unequivocal and informed plea. So we will proceed on that basis.

[24] It is common ground that the appellant’s trial counsel had not, in fact, given the appellant any legal advice about the immigration consequences of his guilty plea and the sentence that he might receive. The appellant and his trial counsel disagree about whether they discussed the immigration issue before the June 29, 2021 appearance. The appellant maintains that they did not do so. His trial counsel swore an affidavit in which he stated that they “did not discuss any immigration-related issue that might arise from conviction or sentence … at any time (prior to June 21, 2021 or afterwards)”. However, in cross-examination, he changed his evidence and said that they did discuss the immigration issue at some point after June 21, 2021, but that he did not provide the appellant with any immigration law advice.

(5) The sentence imposed

[26] When the appellant’s matter returned to court on August 5, 2021, the trial judge sentenced him to 18 months’ imprisonment....

[27] After discussing the Supreme Court of Canada’s decision in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, the trial judge stated:

In my view, however, given the gravity of this offence as described, and the degree of responsibility of this offender, including his actions covering up his offence and the primary sentencing principles at play, a sentence of 6 months or less would not be a fit sentence in this case and I would not have imposed it regardless of the immigration consequences.

D. ANALYSIS

[28] Section 650(1) of the Criminal Code requires an accused person to be “present in court during the whole of their trial”. This includes sentencing proceedings: see e.g., R. v. Petrovic (1984), 13 C.C.C. (3d) 416 (Ont. C.A.), at pp. 425-26. As Martin J.A. explained in R. v. Hertrich (1982), 67 C.C.C. (2d) 510 (Ont. C.A.), at p. 537, leave to appeal refused, [1982] S.C.C.A. No. 124:

[T]he characterization of a proceeding as a part of the trial in relation to the accused's right to be present at the proceeding would seem to depend upon whether his exclusion from the proceeding violates his right to be present so that at all times he may have direct knowledge of anything that transpires in the course of his trial which could involve his vital interests.

[29] This court has previously observed that s. 650 codifies a pre-existing common law right (see R. v. M.C., 2023 ONCA 611, 430 C.C.C. (3d) 281, at paras. 34-35), and that “[t]he right to be present at one’s trial also has a constitutional footing”: R. v. S.M., 2022 ONCA 765, at para. 33; see also R. v. Burnett, 2021 ONCA 856, 159 O.R. (3d) 321, at paras. 28, 69-71.

[30] The right to be present at trial in s. 650(1) is subject to a number of statutory exceptions. Most notably for present purposes, s. 650.01(1) permits criminal defendants to “appoint counsel to represent [them] for any proceedings under this Act by filing a designation with the court”. Section 650.01(3) then sets out the circumstances in which an accused person may appear by designated counsel rather than by appearing personally, while s. 650.01(3)(b) provides that “an appearance by the designated counsel is equivalent to the accused’s being present, unless the court orders otherwise”.

[31] In this case, the June 29, 2021 appearance before the trial judge plainly engaged the appellant’s vital interests. The trial judge was evidently concerned about the possibility that his guilty plea three months earlier had not been adequately informed, and had arranged the June 29, 2021 appearance in order to conduct what would have effectively been a further plea inquiry.

[33] Even assuming that the appellant’s absence on June 29, 2021 did not cause the trial judge to lose jurisdiction, by virtue of s. 650.01, we are not satisfied that the existence of a designation cures the broader problem that arose when the trial judge conducted what was effectively a further plea inquiry with the appellant’s counsel, in the appellant’s absence. We reach this conclusion for four main reasons.

[34] First, while s. 650.01(3) permits guilty pleas to be taken in the accused’s absence, s. 650.01(3)(c) also creates a default presumption that the accused should be present, “unless the court orders otherwise”. Although the appellant had already entered his guilty plea months earlier, the trial judge evidently meant to use the June 29, 2021 appearance to conduct what would in effect be a further plea inquiry. She had also specifically directed that the appellant should attend personally by videoconference.

[35] Second, it is undisputed that the appellant’s trial counsel never told the appellant about the June 29, 2021 appearance. As far as the appellant knew, his case had gone over to August 5, 2021 for sentencing. Even though the appellant had previously signed a designation of counsel, it is debateable whether this gave trial counsel the authority to appear on the appellant’s behalf, without specific instructions, at a court appearance that the appellant had no idea was taking place.

[36] Third, we are satisfied that the representations that trial counsel made to the trial judge at the June 29, 2021 appearance were misleading. The trial judge had specifically sought confirmation that the appellant understood the immigration consequences of his guilty plea. Trial counsel responded by saying:

[H]e understands, and he certainly is sticking with his plea. This is a resolution he’s told me to follow, and it’s the correct resolution for him.

[37] Taken in context, the trial judge likely would have understood trial counsel to be assuring her that since the last court appearance on June 21, 2021, he had given the appellant legal advice about the immigration consequences of a criminal conviction and sentence, and had received instructions from the appellant to proceed with the plea.

[38] In fact, trial counsel had not given the appellant any such legal advice.

[40] We are unable to accept this submission. Although his various affidavits are not fully consistent, it is undisputed that the appellant had not received any immigration law advice from his trial counsel, and his trial counsel did not know whether the appellant had obtained immigration law advice from anyone else....

[41] Fourth, in our view, the June 29, 2021 proceedings squarely engaged the animating purpose of the common law and statutory “presence” requirement. As Martin J.A. observed in Hertrich, at p. 537:

Fairness and openness are fundamental values in our criminal justice system. The presence of the accused at all stages of his trial affords him the opportunity of acquiring first-hand knowledge of the proceedings leading to the eventual result of the trial. The denial of that opportunity to an accused may well leave him with a justifiable sense of injustice.

See also R. v. Barrow, [1987] 2 S.C.R. 694, at p. 706; R. v. M.C., at para. 37.

[42] The appellant ought to have been afforded the opportunity to be present on June 29, 2021. In her reasons for sentence given on August 5, 2021, the trial judge stated that she had heard “further submissions”, and that these submissions had satisfied her that the appellant:

… was aware of the impact this conviction could have on his immigration status and had given his counsel … informed instructions to continue with this sentencing process.

[43] The appellant was unaware that there had been a further court appearance where his knowledge of the impact of a conviction and sentence on his immigration status had been discussed in his absence. The submissions made on this occasion led the trial judge to incorrectly believe that the appellant had received immigration law advice from his trial counsel. Since he was not present at this appearance, the appellant had no opportunity to correct the record.

[44] Section 686(1)(a)(iii) permits us to allow a conviction appeal “on any ground where there was a miscarriage of justice”. We need not decide whether the appellant’s absence during the June 29, 2021 appearance violated his statutory right to be present during the whole of his trial under s. 650 of the Criminal Code, because we are satisfied that the proceedings that took place in his absence on this occasion gave rise to a miscarriage of justice: see R. v. McDonald, 2018 ONCA 369, 360 C.C.C. (3d) 494, at para. 44.

[46] ....Even if we assume that trial counsel had the authority under s. 650.01 to appear on the appellant’s behalf at the June 29, 2021 appearance pursuant to the designation, we are not persuaded that the appellant’s absence caused him no prejudice. It is possible that the appellant’s guilty plea might have been struck. Furthermore, the appellant’s absence at the June 29, 2021 appearance affected “the apparent fairness” of the proceedings: R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at para. 123, leave to appeal refused, [2010] S.C.C.A. No. 459.

E. DISPOSITION

[48] We accordingly allow the appellant’s conviction appeal and order a new trial. This makes it unnecessary for us to address the appellant’s sentence appeal.

R v BL, 2024 BCCA 108

[March 21, 2024] Publication Ban: Accused's Name [Reasons by Madam Justice DeWitt-Van Oosten with Newbury and Abrioux JJ.A. concurring]

AUTHOR’S NOTE: This case stands out due to a publication ban imposed on the accused's name, regardless of its impact on the complainant. Typically, accused individuals aren't granted such bans. However, what set this case apart was that the accused had received a pardon for a previous conviction before appealing his conviction from many years ago to the Court of Appeal.

Introduction

[1] The appellant applies for an anonymization order that allows him to use his initials rather than his full name in this appeal. He also seeks a sealing order prohibiting public access to certain material that forms part of the appeal record.

Factual Background

[4] In April 2005, B.L. pleaded guilty to a drug offence in the Provincial Court. He was sentenced to a conditional sentence under s. 742.1 of the Criminal Code, R.S.C. 1985, c. C-46, as well as a ten-year mandatory firearms prohibition.

[5] In March 2008, he pleaded guilty to another drug offence in the Provincial Court, for which he received a $500 fine.

[6] In April 2019, the Parole Board of Canada granted B.L. a pardon for each of these offences. I use the term “pardon” because B.L. committed his offences before 2012. For crimes committed after that date, the term “pardon” has been replaced with “record suspension”: Safe Streets and Communities Act, S.C. 2012, c. 1.

[7] Because of the pardons, any records of B.L.’s convictions that are held by federal government departments or agencies must be kept separate from other criminal records, and are protected from disclosure under the Criminal Records Act, R.S.C., 1985, c. C-47 [CRA]. More specifically, at the time of B.L.’s convictions, s. 6(2) of the CRA stipulated that “… no such record shall be disclosed to any person, nor shall the existence of the record or the fact of the conviction be disclosed to any person, without the prior approval of the [Minister of Public Safety and Emergency Preparedness]” (emphasis added). The legislation delineated a number of exceptions to the prohibition on disclosure. However, none of them applies here.

[8] In August 2023, B.L. filed an appeal from his 2005 conviction as well as an application for leave to appeal the related sentence. He has also taken steps to appeal the 2008 conviction and sentence. However, the latter offence was prosecuted by summary conviction and that appeal must proceed in the British Columbia Supreme Court. Accordingly, it is not before us.

[9] In the appeal from the 2005 conviction, B.L. seeks to have his guilty plea withdrawn and the conviction and sentence overturned on the basis that when he entered the plea, he was not told that a conviction would have immigration consequences if he later wanted to become a permanent resident of the United States of America (“USA”).

[10] This is something B.L. seeks to do. His common-law spouse of eight years and two children reside in the USA. He lives and works there in the finance and investment industries. B.L. is currently admissible in the USA under a work permit that must be renewed every five years. However, his convictions for drug offences preclude him from obtaining permanent resident status or citizenship in the USA If he stops working there, and is no longer able to rely on the five-year permit, he will be inadmissible. In his written submissions, B.L. states that he has brought this appeal to “overcome” the inadmissibility issue.

[11] B.L. intends to assert in his appeal that not knowing of the long-term immigration consequences of a conviction for drug offences rendered his guilty plea uninformed and invalid. Relying on R. v. Wong, 2018 SCC 25, he will ask that his plea be withdrawn and the conviction overturned on that basis. If he does not succeed in that argument, he will ask that the conditional sentence be varied to an absolute discharge.

Issues on Application

[13] In this application, there are two issues to consider:

a) whether a single justice of the Court of Appeal has jurisdiction to grant anonymization and sealing orders in a criminal appeal; and,

b) whether B.L. meets the test for those orders.

[14] It is not strictly necessary to answer the first question....

Discussion

A. Jurisdiction to grant anonymization and sealing orders

Statutory framework

[18] In Canada, courts of appeal are statutory courts. Consequently, their jurisdiction to hear and determine appeals, as well as matters incidental to those appeals, must find support in legislation or related regulations: R. v. Meltzer, [1989] 1 S.C.R. 1764 at 1773, 1989 CanLII 68; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53 at 69, 1993 CanLII 137.

[19] Indictable criminal appeals are governed by Part XXI of the Criminal Code (“Appeals — Indictable Offences”). The Crown submits there is a provision under Part XXI that allows for anonymization and sealing orders, namely, s. 683.

[20] Section 683(1) lists a number of orders an appellate court can make for the purpose of hearing and determining an appeal, such as orders for the production of records, admitting fresh evidence, and amending an indictment. Anonymization and sealing orders are not included in the list. However, the Crown says an appellate court can look to s. 683(3) as statutory authority for these orders. Section 683(3) expressly incorporates the Court’s civil appeal powers into criminal appeals:

(3) A court of appeal may exercise, in relation to proceedings in the court, any powers not mentioned in subsection (1) that may be exercised by the court on appeals in civil matters....

[21] In civil appeals, this Court may make any order the trial court could have made: Court of Appeal Act, S.B.C. 2021, c. 6, s. 24(1)(a) [Act]. In addition, it has the “… power, authority and jurisdiction vested in the [trial court] for all purposes of and incidental to the hearing and determination of any matter”: Act, s. 25(a)(i). The Crown submits that a trial court’s “power, authority and jurisdiction” as contemplated by the Act includes the authority to anonymize a style of cause and seal court records.

[23] The Crown submits that by virtue of s. 683(3) of the Criminal Code, this Court has authority to make anonymization and sealing orders in criminal appeals. However, given the introductory language of the provision, the Crown says only a division can exercise those powers and the authority to do so does not extend to a single justice under s. 30 of the Act. Section 683(3) effectively renders s. 30 of the Act unavailable.

Analysis

[29] I agree with the Crown that if anonymization or sealing orders in criminal appeals depend on s. 683(3) of the Criminal Code, a strong argument can be made that only a division may properly exercise that authority. The opening language of s. 683(3) appears to make that clear, considered in the context of Part XXI as a whole.

[30] However, I do not consider that s. 683(3) governs the jurisdictional point raised in this application.

[33] In my view, anonymization and sealing orders are governed by the Court’s implicit (sometimes referred to as ancillary or residual) jurisdiction to control its own process and records. This is the position advanced by B.L. in support of a single justice having the authority to make these types of orders, and I agree.

[34] This Court has previously recognized that as a statutory court, it has implicit jurisdiction to do certain things without the necessity of an express legislative provision to that effect, including exercising supervisory jurisdiction over its own process and records. See, for example, R. v. Holland, 2021 BCCA 184 at para. 18; R. v. Moazami, 2020 BCCA 350 at paras. 49–56; and R. v. Tallio, 2017 BCCA 252 at paras. 26–27.

[35] In my view, the Court’s power to control its own process and records falls outside of s. 683 of the Criminal Code, is complementary to that provision, and is not circumscribed by restrictive language. Consequently, it is a power that is not confined to a division of the Court and can be exercised by a single justice in a criminal appeal.

[36] I appreciate that this conclusion is contrary to the Ontario Court of Appeal’s decision in R. v. Church of Scientology, (1986) 25 C.C.C. (3d) 149, 1986 CanLII 4633 (Ont. C.A.), which held that an appellate court’s power to seal a record to prevent the frustration of an appeal may be exercised only by a division. However, that case is dated and not binding on us, and I consider it to have been overtaken by subsequent jurisprudential discussion about the implicit authority of statutory courts to control their own process and records.

[37] This authority was recently affirmed and explained by the Supreme Court of Canada in Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33 [Manitoba]:

[37] Supervisory authority over the court record has long been recognized as a feature of the jurisdiction of all courts … Specifically, courts must ensure compliance with the robust and constitutionally-protected principle of court openness, while also remaining responsive to “competing important public interests” that may be put at risk by that openness … …

[62] It is best to note at the outset that appellate jurisdiction, such as that being exercised by the Court of Appeal in the proceeding below, must be grounded in legislation … In addition to any explicit grant, statutory and appellate courts should be understood to have the implicit power to control their own process and exercise other powers that are practically necessary to accomplish the role the law assigns them …

[63] … the supervisory jurisdiction over the court record is a feature of all courts … and this is no less true of an appellate court. As part of the court’s authority to control its own process, the power over the openness of proceedings and over the court record arises here by necessary implication from the legislative grant of the appellate court’s adjudicative authority … As a matter of procedural necessity — a publication ban or a sealing order may remain in place long after the substance of the appeal has been decided —this jurisdiction continues even after the formal judgment on the merits of a given appeal has been entered unless ousted by legislation. [Emphasis added; internal references omitted.]

See also A.G. (Nova Scotia) v. MacIntyre, [1982] 1 S.C.R. 175 at 189, 1982 CanLII 14.

[38]....the Supreme Court of Canada’s accepted rationale for a statutory court’s implicit jurisdiction to control its own process and records—practical and procedural necessity—is no less compelling at the interlocutory stage of an appeal than it is at a hearing of the merits before a division.

[44] To hold otherwise would leave justices in an untenable position when performing their appellate tasks under Part XXI of the Criminal Code. Restricting the Court’s implicit jurisdiction to control its own process and records to a division would mean that every request for an anonymization order, a sealing order, a discretionary publication ban, or any other order that properly engages the Court’s implicit authority in a criminal appeal, would have to be scheduled before a division, even at the earliest stages of the appeal proceedings, long before the appeal is ready for a review on the merits.

[47] In R. v. Cunningham, 2010 SCC 10, the Supreme Court of Canada described the implicit jurisdiction of statutory courts to control their own process and records as a practical necessity for ensuring that these courts can function as courts of law and achieve the objectives of their statutory grants of power: at paras. 18–20. Disallowing a justice in chambers to exercise this jurisdiction would arguably have the opposite effect.

[48] Accordingly, I am of the view a single justice in a criminal appeal has the authority to make anonymization and sealing orders.

B. Whether an anonymization and sealing order is warranted

[51] That brings me to the second of the two questions before us, namely, whether B.L. meets the test for an anonymization and sealing order.

Legal framework

[52] Both of the orders sought by B.L. limit the openness of court proceedings. The anonymization order will prevent publication of his full name. The sealing order will prevent the public, including members of the media, from accessing affidavits (and related applications material) in the appeal record.

[53] There is a three-pronged test that governs an application for these types of orders. The test is set out in Sherman Estate v. Donovan, 2021 SCC 25:

[3] … Where a discretionary court order limiting constitutionally‐protected openness is sought — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — the applicant must demonstrate, as a threshold requirement, that openness presents a serious risk to a competing interest of public importance. That this requirement is considered a high bar serves to maintain the strong presumption of open courts. Moreover, the protection of open courts does not stop there. The applicant must still show that the order is necessary to prevent the risk and that, as a matter of proportionality, the benefits of that order restricting openness outweigh its negative effects. …

[38] The test for discretionary limits on presumptive court openness has been expressed as a two‐step inquiry involving the necessity and proportionality of the proposed order … Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seeking an exception to the open court principle. In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:

(1) court openness poses a serious risk to an important public interest;

(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,

(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

Only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments … [Emphasis added; internal references omitted.]

[54] There is no closed category of “competing interests” that may appropriately constitute an “important public interest” for the purpose of Sherman Estate. However, as explained by Justice Kasirer, writing for a unanimous Court:

[42] … courts must be “cautious” and “alive to the fundamental importance of the open court rule” even at the earliest stage when they are identifying important public interests … Determining what is an important public interest can be done in the abstract at the level of general principles that extend beyond the parties to the particular dispute … By contrast, whether that interest is at “serious risk” is a fact-based finding that, for the judge considering the appropriateness of an order, is necessarily made in context. In this sense, the identification of, on the one hand, an important interest and, on the other, the seriousness of the risk to that interest are, theoretically at least, separate and qualitatively distinct operations. An order may therefore be refused simply because a valid important public interest is not at serious risk on the facts of a given case or, conversely, that the identified interests, regardless of whether they are at serious risk, do not have the requisite important public character as a matter of general principle. [Internal references omitted.]

[55] The party that applies for an anonymization or sealing order bears the onus of justifying the order. As explained in Mother 1 v. Solus Trust Company Limited, 2021 BCCA 461:

[70] The risk said to necessitate a limiting order must be a “real and substantial risk.” It must also be “well-grounded” in evidence: R. v. Mentuck, 2001 SCC 76 at paras. 34. The party that seeks to keep information from public access bears the burden of displacing the open court principle: Mentuck at para. 38. In Sherman Estate, the Court reiterated that applicants for a restrictive order cannot rely on “unsubstantiated claim[s]” (at para. 35). Instead, they must show that a real and substantial risk exists based on the facts of the case. They must also show that the risk cannot be adequately addressed without an order. [Emphasis added.]

See also A Lawyer v. The Law Society of British Columbia, 2021 BCCA 284 (Chambers) at para. 35, wherein Justice Bennett described the onus borne by the party that seeks a sealing order this way: “The applicant must demonstrate that a superordinate public interest prevails over the public’s interest in open court proceedings”

Analysis

[60] Having considered the Sherman Estate framework in the particular context of this appeal, I would grant the requested orders.

[61] First, I agree with B.L. that a fully open court proceeding would pose a serious risk to an important public interest, namely, the rehabilitative objectives underlying the CRA as supported by the legislation’s non-disclosure provisions. This is the basis on which an anonymization and sealing order has been shown to be justified by B.L. But for the existence of the pardon and the mandated non-disclosure protection that accompanies a pardon, I would have reached a different conclusion.

[62] It is plain from the preamble to the CRA in effect at the time B.L. was granted his pardon, that the pardon was intended to provide him with relief as an offender on the basis that he had “subsequently rehabilitated” himself. Unless B.L.’s pardon for the 2005 offence is revoked under the CRA or otherwise rendered inoperative, he is entitled to claim the benefit of that relief. The fact that he has initiated appeal proceedings does not change his status as someone who has received a pardon. No one has suggested that the mere fact of an appeal deprives him of the nondisclosure protection provided under s. 6 of the CRA.

[64] Presumably, this is why law enforcement and other non-federal agencies that are not subject to the provisions of the CRA nonetheless take steps to respect the non-disclosure prohibition. This fact was specifically noted in Chu:

[34] The CRA applies only to records kept within federal departments and agencies. However, … once a record suspension has been ordered, it is the practice of the RCMP to notify all agencies who have contributed information to the subject’s file and all federal government agencies who have received a copy of the subject’s criminal file. Many provincial and municipal law enforcement agencies cooperate by restricting access to their records once they receive notification from the RCMP. For example, it is the policy of the B.C. Ministry of Justice to remove a record suspension file from the public record when the criminal registry receives notice of a suspension from federal authorities. …

[36] In summary, when individuals obtain a record suspension, they can expect that their prior convictions will not be disclosed or held against them except in very limited circumstances. [Emphasis added.]

[65] When the Parole Board of Canada advised B.L. of his pardon, it told him that “many provincial, territorial and municipal agencies, when notified, choose to conform to the [CRA] by restricting the disclosure of the criminal record”. Consistent with this statement, it is common ground that the records of B.L.’s convictions in the Provincial Court have been sealed or otherwise closed off to public access because of the pardon. Consequently, B.L. must apply to the Provincial Court and have the records of the 2005 and 2008 convictions “unsealed” before he can produce those records (or whatever remains of them), for use in his appeals.

[68] Respectfully, the Crown’s position on whether B.L. is able to demonstrate an important public interest fails to account for the unique feature of a pardon and the non-disclosure protection afforded by the CRA. In my view, the existence of the pardon distinguishes B.L. from other appellants and properly informs the analysis under the first prong of the Sherman Estate test. This application is not about the protection of privacy, per se. It is about protecting a particular aspect of B.L.’s privacy that already finds protection elsewhere and importantly, is prohibited from disclosure for the specific purpose of supporting his ongoing rehabilitation and reintegration into society.

[71] Specific to the second prong of the Sherman Estate test, I also agree with B.L. that the orders sought by him are necessary to prevent a serious risk. I consider it self-evident that if B.L.’s full name is published and the details in the affidavits are made accessible to members of the public, including the media, the rehabilitative objectives of the CRA as facilitated through its non-disclosure provisions will be substantially impaired. B.L.’s affidavits provide a solid evidentiary basis for the serious risk he has identified. This is not an “unsubstantiated claim”: Mother 1 at para. 70.

[72] Finally, I appreciate that the open court principle “… is part of the bedrock founding our judicial institutions and the rule of law”: Moazami at para. 2. It is well-accepted that public access to the courts allows “… public scrutiny of judicial processes and enhances public confidence in the justice system and an understanding of how justice is administered in Canada”: Moazami at para. 2. This is why the test for interference with the open court principle is a stringent one and applicants for limiting orders must show a real and substantial risk to an important public interest that cannot be adequately addressed without an order: Mother 1 at para. 70; Sherman Estate at paras. 2–3.

[73] However, in the exceptional circumstances of this case, I am satisfied that as a matter of proportionality, the benefits of the orders sought outweigh their negative effects.

[74] B.L. is not asking for his appeal to be heard in camera, or for the whole of the appeal file to be sealed. Rather, he seeks anonymization of his name to protect his identity as a pardoned offender, and a sealing order limited to two affidavits and related application materials that contain detailed information directly relevant to his status and circumstances as a pardoned offender. The remainder of the information contained in the appeal file and all other developments in the case will be accessible and open to public view. Critically, the essence of the information B.L. seeks to protect is already protected from disclosure elsewhere. He appropriately seeks tailored orders that are intended to preserve and give meaningful effect to the non-disclosure provisions of the CRA, without unduly compromising the open court principle.

[75] On balance, and as long as the pardon and non-disclosure protection under the CRA remain applicable to B.L., I consider the orders sought by him to be a proportionate limit in light of the demonstrated risk to an important public interest.

Disposition

[76] For these reasons, I would hold that a single justice of this Court has implicit jurisdiction to grant anonymization and sealing orders in exercise of the justice’s control over the Court’s process and records.

[77] I would grant B.L.’s application for an anonymization and sealing order for as long as his pardon remains in effect and the non-disclosure provisions of the CRA are properly available to him.

[78] To give effect to the orders, I would direct that, subject to a further order of this Court:

a) the style of cause in these proceedings be amended to “Rex v. B.L.”;