R. v. Kitaitchik, 2002 CanLII 45000 (ON CA)

COURT OF APPEAL FOR ONTARIO

DATE: 20020624
DOCKET: C32740

BEFORE: DOHERTY, GOUDGE and MACPHERSON JJ.A.

B E T W E E N :

David E. Harris
Appellant

• and -

HER MAJESTY THE QUEEN
Respondent

COUNSEL:
Rosella Cornaviera and Joan Barrett for the respondent
ALBERT KITAITCHIK for the appellant

Heard: May 27, 2002

On appeal from the conviction entered by Justice Eugene Ewaschuk January 12, 1999 and the sentence imposed January 26, 1999.

DOHERTY J.A.:

1The appellant was convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for ten years. He appealed and this court ordered a new trial, reported at [1998] O.J. No. 822. On his retrial, he was again convicted of second degree murder and was sentenced to life imprisonment without eligibility for parole for twelve years. He appeals conviction and sentence.

2I would dismiss the appeal.

1. I

3There are two grounds of appeal from conviction. The first alleges improper intervention by the trial judge during the cross-examination of Larry Shemtov (“Shemtov”), the main Crown witness. The second alleges that the trial judge erred in holding that evidence obtained in breach of s. 8 of the Canadian Charter of Rights and Freedoms was admissible. Neither ground of appeal requires an elaborate exposition of the evidence.

4The Crown alleged that the appellant murdered the victim in the course of burglarizing her apartment. The appellant’s mother worked for the victim and the appellant had reason to believe that a burglary of the victim’s home would be financially rewarding.

5The Crown’s case rested on:

• evidence that shortly after the homicide the appellant was in possession of property stolen from the victim;
• evidence that in the hours and days following the homicide, the appellant repeatedly tried to access the victim’s bank account;
• the testimony of Shemtov, an acquaintance of the appellant’s, who testified that the appellant confessed to the homicide; and
• evidence that several fibres found on the clothing worn by the appellant at the time of his arrest were consistent with fibres taken from objects found at the homicide scene.

6Shemtov’s evidence was an important part of the Crown’s case. He was an unsavoury witness who gave several different accounts of relevant events. The version he ultimately gave at trial developed over several statements and differed in material respects from parts of his previous statements and testimony.

7The appellant testified. He came to Canada from Belarus when he was seventeen years old, about seven months before the homicide. He befriended Shemtov, who was several years older than him. The appellant mentioned to Shemtov that his mother worked for a rich Russian and showed Shemtov where the Russian lived. Shemtov suggested a burglary and asked the appellant to get him keys to the apartment. The appellant secured keys to the Russian’s apartment and gave them to Shemtov believing that together, they would burglarize the apartment at an opportune time. The appellant testified that he later learned that Shemtov carried out the burglary without him. He believed that Shemtov killed the victim during the burglary and then falsely implicated him to avoid coming under the suspicion of the police. The appellant admitted that shortly after the homicide, he shared in the burglary proceeds with Shemtov and that together they tried to access the victim’s bank account.

2. II

8The appellant submits that the trial judge’s interventions during Shemtov’s cross-examination resulted in a miscarriage of justice either by preventing counsel from conducting a proper cross-examination, or by leaving the jury with the impression that the trial judge was placing his authority on the side of the prosecution and against the defence. I disagree.

9Shemtov was a difficult witness. His many prior inconsistent statements and his attitude during cross-examination made him difficult to control and effectively cross-examine. He was, however, central to the Crown’s case and it was crucial that counsel fully cross-examine him. That cross-examination, which extended over some 250 pages of transcript, was at times laborious and repetitive, no doubt because of the nature of some of Shemtov’s answers.

10The trial judge interjected on many occasions during the cross-examination. Most of these interjections were appropriate. Some involved attempts to clarify the nature of the inconsistencies being put to the witness, while others involved attempts to clarify which of the various previous statements were being referred to in the questions. Some interventions corrected misstatements by counsel and others admonished counsel or Shemtov to avoid making speeches or editorial comments during the cross-examination.

11Many of the trial judge’s interjections were unnecessary, in the sense that the trial would have progressed along the same course without the interjections. However, the mere fact that an interjection is unnecessary does not suggest that it is improper, much less that it occasioned a miscarriage of justice. Having reviewed the totality of Shemtov’s cross-examination and the trial judge’s instructions to the jury concerning Shemtov, I see no basis for the submission that the trial judge used the authority of his office to bolster the credibility of Shemtov. To the contrary, he made it clear to the jury that it must exercise caution in considering Shemtov’s evidence. The trial judge described Shemtov as a person who even the Crown conceded to be “unlikable and dishonest”.

12The most that can be said of some of the trial judge’s interjections is that they evinced an impatience with defence counsel when counsel interrupted the trial judge. Impatience or annoyance with defence counsel does not, however, equate with judicial support for the witness who is being cross-examined, or denigrate the role of counsel. In assessing the effect of these interjections, it should also be observed that the trial judge became impatient with Shemtov on more than one occasion during the cross-examination. To the extent that the interjections revealed the trial judge’s state of mind, they suggest only some impatience with both counsel and the witness and a desire to keep the lengthy cross-examination moving forward.

13A few of the trial judge’s interjections did interfere to some extent with the flow of the cross-examination. For example, when it was evident to the trial judge that a series of questions were headed towards a certain culminating question, the trial judge interjected to move the witness directly to that climatic question. There was nothing improper in counsel’s approach and the trial judge should have left it to counsel to develop the line of questioning as he saw fit. These improper interjections were, however, few in number. They did not prevent counsel from conducting a full and effective cross-examination and at worst produced minor detours in what was a very long cross-examination.

14As with almost every trial, this trial was not perfect. However, the interjections by the trial judge which can properly be described as improper, were isolated and relatively innocuous. Considered in the context of the entire trial, they do not come close to the kind of interference that would result in a miscarriage of justice.

3. III

15The second ground of appeal challenges the trial judge’s ruling under s. 24(2) of the Charter refusing to exclude clothing the police seized from the appellant after his arrest in violation of his rights under s. 8 of the Charter.

16The victim’s body was found on December 1, 1991. The appellant became a suspect in the homicide after Shemtov spoke to the police, in the early morning hours of December 3rd, and told them that the appellant gave him property belonging to the deceased. At this time, Shemtov did not say that the appellant admitted to killing the victim.

17The officer in charge of the investigation instructed another police officer to “pick up” the appellant. That officer went to the appellant’s home on December 3rd and arrested him on a charge of possession of stolen property. The appellant was advised of his right to counsel. It is conceded that the arrest was lawful.

18The appellant was taken to the police station. He did not speak English and the police arranged for an interpreter. They advised the appellant of his rights through that interpreter and conducted a lengthy interview. At the appellant’s first trial, the Crown attempted to tender statements given by the appellant during the interview. German J. held that unbeknownst to the police, the interpreter was incompetent and consequently, that the appellant had not been properly advised of his rights under s. 10(a) or s. 10(b) of the Charter. The Crown did not tender the statements in this trial, but both counsel made reference to and accepted the ruling of German J. for the purposes of determining the admissibility of the seized clothing.

19Some time after his arrest, the officer in charge of the homicide investigation decided that he wanted to examine the appellant’s clothing for fibres that might link the appellant to the homicide scene. The officer did two things. First, he obtained a search warrant authorizing the seizure of clothing from the appellant’s home. Second, he instructed another officer to seize the clothing the appellant was wearing. He correctly understood that he could not get a search warrant to seize clothing the appellant was wearing.¹

20On December 4th, the day after the appellant’s arrest, he was taken from the cells to a private consulting room. One officer went into the consulting room with the appellant and told him to remove all of his clothing. The appellant did so and the officer gave him a fresh set of clothing obtained from the appellant’s home. The appellant put on the fresh set of clothing and was returned to the cells.

21Subsequent examination of the seized clothing revealed that several fibres found on the clothing were consistent with a ligature and a sweater found at the murder scene.

22The officer who gave the instruction to seize the appellant’s clothing testified that the seizure related to the homicide investigation and not to the possession of stolen property charge. The officer did not believe that he had reasonable and probable grounds to arrest the appellant on a murder charge at the time he ordered the seizure. He believed, however, that he had the authority to seize the clothing as an incident of the appellant’s arrest on the charge of possession of stolen property.

23On December 6th, two days after the seizure of the appellant’s clothing, Shemtov gave a further statement to the police in which he told them for the first time that the appellant confessed to committing the murder. The appellant was arrested on the murder charge on December 9th.

24At trial, counsel for the appellant alleged only a violation of s. 8 of the Charter. The evidence adduced on the voir dire reflected the scope of that challenge.

25The trial judge accepted counsel’s submission that the seizure was not authorized by law and violated s. 8 of the Charter. He found that the common law power to seize as an incident of arrest did not extend to the seizure of things which could afford evidence of a crime other than the crime for which the person was arrested. As the clothing was seized in relation to the homicide investigation and not in relation to the possession of stolen property charge, the seizure was not a lawful exercise of the power to search incident to an arrest. The search was, therefore, unlawful and unreasonable.

26The Crown does not take issue with the trial judge’s ruling that the seizure of the appellant’s clothing violated his rights under s. 8 of the Charter.

27In determining the admissibility of the seized evidence, the trial judge followed the well known three-step analysis first described in R. v. Collins (1987), 1987 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C.). He first observed that it was conceded that the evidence was not conscriptive and that its admissibility would not adversely affect the fairness of the trial. Its admissibility, therefore, turned on his assessment of the seriousness of the violation and the effect of exclusion on the administration of justice, the second and third steps identified in R. v. Collins, supra. The trial judge described the breach as “not flagrant” but “not trivial”. In coming to that conclusion, he observed that the police conduct showed no pattern of “repeated deliberate Charter breaches” and demonstrated “good faith”.

28The trial judge’s reference to the effect of exclusion of the evidence on the administration of justice is brief. However, it may be inferred from the authority referred to by the trial judge (R. v. Lewis (1998), 1998 7116 (ON CA), 122 C.C.C. (3d) 481 (Ont. C.A.)) that his conclusion, that exclusion would bring the administration of justice into disrepute, was founded on his assessment of the reliability of the seized evidence, its importance to the prosecution and the seriousness of the charge.

29Mr. Harris, for the appellant, acknowledges that this court can only interfere with the trial judge’s conclusion that the evidence should not be excluded if it finds that the trial judge erred in the application of the relevant legal principles or made an unreasonable finding: R. v. Law (2002), 2002 SCC 10, 48 C.R. (5th) 199 at 215 (S.C.C.); R. v. Borden (1994), 1994 63 (SCC), 92 C.C.C. (3d) 404 at 421 (S.C.C.). Mr. Harris accepts that the trial judge properly identified the factors relevant to the s. 24(2) inquiry. He also concedes that the evidence was not conscriptive and that trial fairness was not compromised by its admission. He contends, however, that the trial judge made several errors that taint his assessment of both the seriousness of the violation and the effect of excluding the evidence on the administration of justice.

30Mr. Harris submits that the trial judge significantly misapprehended the seriousness of the breach. He contends that on the evidence, the appellant was subjected to the equivalent of a strip search. He relies on the recent decision in R. v. Golden (2001), 2001 SCC 83, 159 C.C.C. (3d) 449 (S.C.C.) to support his claim that the seizure of the appellant’s clothing was a very serious violation of the appellant’s most intimate privacy rights.

31The trial judge was obliged to assess the seriousness of the breach based on the evidence adduced before him and not by reference to the presumed effect of searches conducted in different circumstances. On the evidence put before the trial judge, the appellant was not subjected to a strip search as described in R. v. Golden, supra. While the seizure of his clothing was clearly an intrusive act, it was not akin to stripping him for the purpose of viewing or examining his most private areas. The seizure occurred in a private room with only one other person present. No force or intimidation was used and the appellant was immediately provided with a fresh set of his own clothing. No attempt was made to examine the appellant’s body. The appellant did not testify on the voir dire and it is sheer speculation to suggest that he was somehow humiliated or traumatized by the seizure. The trial judge found that the seizure was effected quickly and without any apparent embarrassment to the appellant. The evidence supported these findings.

32The seizure also occurred after a lawful arrest and while the appellant was lawfully in police custody. In such circumstances, a person has a reduced expectation of privacy: R. v. Beare (1988), 1988 126 (SCC), 45 C.C.C. (3d) 57 at 77 (S.C.C.).

33The trial judge’s assessment of the seriousness of the interference with the appellant’s privacy interests reveals no misapprehension of the evidence, or failure to consider relevant factors and is not unreasonable.

34The appellant next contends that the trial judge misapprehended the evidence when he concluded that the s. 8 breach was not part of a pattern of repeated deliberate Charter breaches. He relies, not on the breaches found by German J., which he concedes were not the fault of the police, but on the alleged failure of the police to advise the appellant that he was being detained on a homicide investigation and on the failure of the police to advise the appellant that he had a right to consult with counsel in relation to that homicide investigation. Relying on R. v. Evans (1991), 1991 98 (SCC), 63 C.C.C. (3d) 289 (S.C.C.) and R. v. Borden, supra, the appellant argues that as he was admittedly detained in reference to the homicide investigation, the police were obligated to tell him so, and to advise him of his right to counsel in connection with that investigation. This obligation existed above and beyond the obligation to advise the appellant of the reasons for his arrest (possession of stolen property) and to inform him of his right to counsel in relation to that charge. The appellant describes the failure to relate his detention to the homicide investigation and the failure to advise him of his right to counsel in connection with that investigation as “deliberately circumventing” his rights under ss. 10(a) and 10(b) of the Charter. He maintains that had the trial judge properly considered these Charter breaches, he would have concluded that there was a pattern of deliberate Charter breaches.

35The appellant was vigorously defended at both his first and second trial by experienced defence counsel. The breaches now relied on by the appellant were not raised at either trial. Apart from the breaches arising out of the incompetent conveying of the appellant’s rights by the interpreter, there was no suggestion that the appellant’s rights to counsel or his rights to be informed of the reasons for his detention were violated by anyone. There was simply no evidence led as to what the appellant was told, by whom, about the reasons for his detention or his right to counsel. We do not know whether the police told the appellant that he was being detained on the murder investigation, or whether the police told him that he could consult with counsel on that charge, before the seizure occurred. Nor do we know, apart from what the appellant was told by the police, what he himself knew about the reasons for his detention and his right to counsel.

36At the trial, the appellant had the onus of demonstrating any Charter breach on which he would rely. He chose to try to establish only a breach of s. 8. This court will only consider Charter arguments not raised at trial in limited circumstances. First and foremost, this court will not consider new Charter issues unless the trial record admits of a full, fair and reliable assessment of that claim. The record is silent on the factual questions underlying the appellant’s claim that he was not told that he was being detained in relation to the homicide and that he was not told that he had a right to counsel in relation to that matter. The appellant proceeds on the basis that the court should simply assume that these violations occurred because the initial efforts to advise the appellant of the reasons for his arrest and his right to counsel were foiled by the incompetent interpreter. This court cannot make any such assumption. The trial record does not address these issues. For that reason alone, it would be inappropriate for this court to deal with this issue: R. v. Jamieson (1998), 1998 975 (ON CA), 131 C.C.C. (3d) 347 at 349-50 (Ont. C.A.).

37In addition to the inadequacy of the record, the argument advanced for the first time on appeal would fundamentally alter the nature of the admissibility inquiry. If counsel were allowed to contend that the seizure was made before the appellant was advised of his right to counsel on the murder investigation, it seems to me that it would at least be arguable that the admission of the seized clothing would adversely affect the fairness of the trial: see R. v. Borden, supra, at p. 422. Since it was conceded throughout that the admissibility of the evidence would not affect trial fairness, the Crown has had no opportunity to develop evidence which could neutralize any claim that the admissibility of the evidence would adversely affect trial fairness. This submission advanced for the first time on appeal, invites this court to determine the admissibility of the seized clothing on grounds that the Crown had no opportunity to address at trial. To do so would not only be unfair to the Crown, but would also run the real risk of inaccurate factual findings by this court.

38Counsel next submits that the trial judge erred in principle by finding that the officer acted in good faith when he directed the seizure of the appellant’s clothing. Counsel contends that while the officer honestly believed that he had the authority to order that seizure, he should have known that he could not seize clothing to further a homicide investigation as a lawful incident of the arrest of a person on a different charge. In counsel’s submission, the term good faith is properly applied only to conduct which an officer honestly and reasonably believes to be lawful.

39Even if counsel’s limited definition of good faith is accepted, I cannot agree that the officer’s mistaken belief that he could seize the clothing was an unreasonable one. This seizure occurred in 1991. As Cory J. observed in R. v. Stillman (1997), 1997 384 (SCC), 113 C.C.C. (3d) 321 at 340-43 (S.C.C.), the scope of the common law power to search as an incident of arrest was unsettled in Canada prior to Stillman, supra, and had been “gradually broadened” by Canadian courts. On my reading of the authorities pre-dating this seizure, there is no clear prohibition against seizure of evidence relating to offences other than the offence for which the accused was arrested. Like many aspects of the common law power to seize as an incident of arrest, this question had not been addressed in the case law pre-dating the seizure: e.g. Cloutier v. Langlois (1990), 1990 122 (SCC), 53 C.C.C. (3d) 257 at 278 (S.C.C.).

40With the benefit of subsequent case law (R. v. Caslake (1998), 1998 838 (SCC), 121 C.C.C. (3d) 97 at 109 (S.C.C.)), it is now clear that the power to seize as an incident of arrest does not extend to the seizure of material to provide evidence of an offence other than the offence for which the person was arrested. Given the state of the law in 1991 and the court’s willingness to expand, at least from a spatial perspective, the power to search as an incident of arrest, I cannot characterize the officer’s belief that he could seize the clothing to further his homicide investigation as unreasonable.

41In any event, I do not think that appellate review of a trial judge’s s. 24(2) assessment should fixate on the legal label the trial judge attached to the police conduct. The nature of police conduct, by the officer or officers involved in the breach and on an institutional level, is an important consideration when calibrating the seriousness of the Charter breach. Indeed, where that breach does not implicate trial fairness, the nature of the police conduct will often determine whether the evidence should be excluded. Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights: see Hill, “The Role of Fault in Section 24(2) of the Charter”, The Charter’s Impact on the Criminal Justice System (1996), at p. 57, (Cameron ed.). What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct.

42The trial judge understood that the characterization of the police conduct was a necessary element in assessing the seriousness of the Charter breach. In characterizing that conduct, the trial judge referred to four factors:

• the officer obtained a search warrant from a Justice of the Peace authorizing the seizure of the appellant’s clothing in the circumstances where he believed that the law permitted him to make application for a search warrant;
• the officer honestly believed that he had the power to seize the appellant’s clothing in furtherance of the homicide investigation;
• while there had been an earlier breach of the appellant’s Charter rights, the police could not be faulted in any way for that breach; and
• there was no pattern of deliberate Charter breaches.

43I would add two further considerations. First, even though the officer testified that he did not have reasonable and probable grounds to charge the appellant with murder at the time he seized the clothing, I think, on any objective assessment, he had such grounds. There was a clear basis for inferring that the theft and the homicide were part of the same transaction. The officer had very good reason to believe that the appellant was in possession of stolen property taken from the victim’s apartment shortly after the theft and homicide occurred. The appellant’s possession of the stolen property so close in time to the theft and homicide provided reasonable and probable grounds to believe that he was implicated in the homicide. Second, although the officer did not purport to seize the clothing in relation to the possession charge on which the appellant was arrested, the clothing was capable of providing evidence to support that charge. If the clothing placed the appellant at the scene of the theft, it would provide cogent support for the charge that he was in possession of stolen property knowing that the property had been stolen.

44These two considerations demonstrate that the breach of s. 8 flowed not from any overreaching by the police officer in charge of the investigation, but rather from his failure to fully appreciate the impact of the evidence in his possession and his authority to seize the clothing in relation to the possession charge. While the officer’s misconceptions in no way negate the s. 8 breach, they do mitigate the seriousness of that breach.

45When these factors are all taken into consideration, they place the officer’s conduct well towards the blameless end of the fault spectrum described above. I see no error in the trial judge’s characterization of the police conduct.

46The final submission made on behalf of the appellant refers to the trial judge’s reliance on R. v. Lewis, supra, to support his conclusion that the exclusion of the evidence would bring the administration of justice into disrepute. It is submitted that R. v. Lewis, supra, speaks only to a case in which the challenged evidence is essential to the prosecution. Counsel contends that the evidence obtained from the appellant’s clothing was important but not essential to the Crown’s case.

47I reject this submission. It reads R. v. Lewis, supra, and other cases to the same effect (e.g. R. v. Belnavis (1997), 1997 320 (SCC), 118 C.C.C. (3d) 405 (S.C.C.)) too narrowly. The inquiry mandated by the third step in R. v. Collins, supra, seeks to put the seriousness of the Charter breach into the context of the specific prosecution by examining the adverse effect, if any, occasioned to the administration of justice by the exclusion of evidence. The last stage of the R. v. Collins, supra, inquiry asks whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth seeking goal of the criminal trial. In making that assessment, a court should consider the seriousness of the alleged offence, the reliability of the challenged evidence, and the importance of that evidence to the case.

48The appellant was charged with murder, the most serious offence known to our criminal law. The evidence which the appellant sought to exclude was reliable. It was also important to the Crown’s case. If accepted by the jury, it could provide valuable confirmation of the evidence of Shemtov, a clearly unsavoury witness. Convictions which rely heavily on the unconfirmed evidence of a witness like Shemtov are troubling. Surely, the reliability of such verdicts is greatly enhanced when the jury is permitted to hear evidence that is independent of, and confirmatory of, the evidence offered by a person like Shemtov. I see no error in the trial judge’s conclusion that the exclusion of this evidence would tend to bring the administration of justice into disrepute.

49I can find no error in principle in the trial judge’s s. 24(2) analysis. Nor can any of his findings be characterized as unreasonable. I would not give effect to this ground of appeal.

4. IV

50The appellant appeals the parole ineligibility period imposed by the trial judge. In doing so, he does not argue that viewed in isolation, the twelve year parole ineligibility period reveals reviewable error. Indeed, in imposing a twelve year ineligibility period, the trial judge followed the unanimous recommendation of the jury. The appellant contends, however, that the trial judge failed to give adequate weight to the fact that the appellant received a parole ineligibility period of ten years when sentenced at the first trial. He submits that as the evidence was no different on the second trial, the trial judge should have imposed the same sentence as was imposed at the first trial.

51In R. v. Harriot (2002), 2002 23588 (ON CA), 58 O.R. (3d) 1 (C.A.) application for leave to appeal to S.C.C. filed April 8, 2002, this court considered the relevance, on a retrial, of the sentence imposed at the first trial. MacPherson J.A. said at p. 16:

[T]he imposition of a sentence imposed after a re-trial should not be regarded as a matter entirely de novo. If the trial judge at the second trial decides to impose a greater sentence than the original sentence, he or she must first determine that the original sentence was unfit, or that new facts have emerged, and then consider all the relevant factors before imposing the new sentence … .

52The present appeal is different from R. v. Harriot, supra, in one important way. In R. v. Harriot, supra, the Crown did not appeal the sentence imposed at the first trial. The Crown did appeal the parole ineligibility period imposed on the appellant at his first trial. The merits of the Crown appeal were not reached because the court allowed the conviction appeal. The Crown has consistently taken the position that there should be some increase in the parole ineligibility period. At this trial, the Crown took the same position on sentence that it took at the first trial.

53In these circumstances, the appellant cannot suggest that a higher sentence on his second trial could reasonably be seen as “punishment” for having successfully appealed his conviction. While the sentence imposed at the first trial remains a relevant consideration it carries less weight than in a case like R. v. Harriot, supra.

54In sentencing the appellant at his first trial, German J. gave considerable weight to the length of time the appellant spent in pre-trial custody and the difficult nature of some of that pre-trial custody. Since the period of parole ineligibility runs from the date that an accused is incarcerated on a murder charge, the length of pre-trial custody is irrelevant to the determination of the appropriate period of parole ineligibility. The sentence imposed by German J. was tainted by her failure to recognize that fact.

55I can find no error in the trial judge’s departure from the sentence imposed at the first trial. The sentence imposed by the trial judge reflects a careful consideration of the mitigating and aggravating factors as well as the jury’s recommendation. I would not interfere with the sentence imposed.

5. V

56I would dismiss the appeal from conviction and the appeal from sentence.

RELEASED: “DD”

Footnotes

1. 1It would appear that a warrant could now be obtained under s. 487.01 of the Criminal Code, R.S.C. 1985, c. C-46, as amended by S.C. 1993, c. 40, s. 15.