COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Pan, 2012 ONCA 581
DATE: 20120910
DOCKET: C53300 & C53744
Laskin, Feldman and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Er Mei Pan and Quan Zhen Ban
Respondents
Kevin Wilson, for the appellant
Kim Schofield, for the respondents
Heard: April 27, 2012
On appeal from the orders of Justice J. Elliott Allen of the Ontario Court of Justice dated January 19, 2011 and April 29, 2011, staying the proceedings against the respondents.
Laskin J.A.:
A. overview
[1] The overriding issue on this crown appeal is whether the trial judge erred in principle or exercised his discretion unreasonably in staying charges against the respondents Pan and Ban.
[2] The Peel Regional Police obtained a search warrant for a house where they believed there was a marijuana grow operation. They went to the house, knocked repeatedly, and announced that they were the police with a warrant. No one answered. After 30 to 40 seconds, the police rammed open the door. Inside they found 1,370 marijuana plants. They also found and arrested Pan and Ban.
[3] The respondents were charged with production of marijuana, possession for the purpose of trafficking in marijuana and theft of electricity. The Crown proceeded by indictment and the respondents were tried in the Ontario Court of Justice.
(i) The Stay of Pan’s Charges
[4] The respondents needed interpreters, and interpreters were available for them on the first three days of the trial, during which all the evidence was heard. On the fourth day of trial, the date set for argument, a Mandarin interpreter was not available for Pan. Although neither respondent asked him to do so, the trial judge stayed the charges against Pan. He expressed frustration with what he viewed as chronic and deliberate underfunding of the courts. He claimed that his judicial independence and Pan’s right both to “access her own trial” and to be tried within a reasonable time had been compromised.
[5] The Crown appeals this stay. It submits that the trial judge erred in principle by failing to apply the proper test for a stay. The Crown also submits that the trial judge erred in law in holding that the unavailability of an interpreter on one day of the trial interfered either with his judicial independence or Pan’s right to be tried within a reasonable time. The Crown contends that the trial judge should simply have adjourned the trial to a day when a Mandarin interpreter would be available.
(ii) The Stay of Ban’s Charges
[6] Ban was injured during his arrest. He sought a stay under s. 24(1) of the Charter on the ground that the police breached his s. 7 rights by using excessive force. The trial judge rejected Ban’s evidence and did not find that the police’s use of force was excessive. Nevertheless, he stayed the charges on the ground that the police had breached the knock-and-announce rule and that Ban’s injuries were a “foreseeable” consequence of this breach.
[7] On its appeal of this stay, the Crown makes three main submissions:
(1) The trial judge erred in law in holding that the police breached the knock-and-announce rule;
(2) The trial judge erred in law in finding a breach of s. 7 of the Charter; and
(3) The trial judge erred in law by failing to apply the proper test for a stay under s. 24(1) of the Charter.
[8] I agree with the Crown’s submissions. For the reasons that follow, I would allow the Crown’s appeal, set aside both stays, and order a new trial for both respondents.
B. stay of the charges against pan
[9] The respondents’ trial had proceeded on three non-consecutive days – two in June 2010 and the third in November 2010. Argument was scheduled for January 19, 2011. On that date, the Mandarin interpreter arranged for Pan was not available; she was in another courtroom.
[10] Without having been asked by counsel, the trial judge stayed the charges against Pan. In his view, the root problem was the province’s decision “to allocate inadequate resources to interpreters, to allow me to continue at least Ms. Pan’s case today.” He rejected the option of an adjournment or severance and concluded his ruling by saying: “… I will, in fact, not allow this failure of the province to properly fund the justice system to go without consequences.”
[11] The trial judge grounded the stay on three bases:
(1) Interference with judicial independence;
(2) Denial of Ms. Pan’s right to be tried within a reasonable time; and
(3) An abuse of process because Ms. Pan could not “access her own trial”.
[12] The Crown has a right of appeal against a stay under s. 676(1)(c) of the Criminal Code. A stay is a discretionary remedy. It is also a remedy of last resort, to be ordered only in the “clearest of cases”. An appellate court is entitled to interfere if the trial judge exercised this discretion unreasonably or erred in principle, which includes erring in law. Against this standard of review I turn to the trial judge’s three grounds for granting a stay.
(i) Interference with judicial independence
[13] The trial judge found that the unavailability of an interpreter compromised judicial independence: “It impacts on the independence of the judiciary, both in terms of having adequate supports to do their jobs and particularly the right under the Courts of Justice Act to determine when cases proceed … I will not be told that I cannot continue a trial on a date which I have ordered the trial to proceed because the province will not provide adequate resources.”
[14] The trial judge was understandably frustrated because the case could not go forward that day. But to say that judicial independence was affected because it could not was wrong in principle.
[15] Judicial independence has three characteristics: security of tenure, financial security and administrative independence. In this case, only administrative independence could conceivably be implicated. Unlike, for example, financial security, which has both an individual and an institutional aspect, administrative independence attaches only to the court as an institution. Contrary to the apparent view of the trial judge, administrative independence has nothing to do with the individual independence of a judge of the court. It means control by the court, as an institution, “over the administrative decisions that bear directly and immediately on the exercise of the judicial function”. The Supreme Court has defined administrative independence narrowly, referring only to the “assignment of judges, sittings of the court and court lists – as well as the related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions” (emphasis added): see Reference re: Remuneration of Judges of the Provincial Court (P.E.I.), 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, at paras. 115-20.
[16] The trial judge’s finding that judicial independence was compromised could only be supported if there were evidence that the unavailability of an interpreter that day amounted to interference with the ability of the Ontario Court of Justice, as an institution, to direct its administrative staff. There was no such evidence. The trial judge’s complaint that the province chose to allocate inadequate resources to interpreters was entirely unsubstantiated. Thus, grounding the stay of the charges against Pan on interference with judicial independence was unwarranted.
(ii) Denial of Ms. Pan’s right to be tried within a reasonable time
[17] The trial judge also found that the unavailability of an interpreter “impacts on the right of the accused to be tried within a reasonable time and to continue with their trial … [s]o it is a gross violation of Ms. Pan’s right to have her trial continue”.
[18] Section 11(b) of the Charter guarantees an accused the right to a trial within a reasonable period of time. A well-established framework exists for determining whether an accused’s s. 11(b) right has been violated. The court must consider and balance four criteria: the length of the delay, waiver of time periods, the explanation for the delay, and prejudice: see R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771.
[19] Ms. Pan did not bring a motion for a stay for a violation of s. 11(b). Even if the trial judge could grant a stay without one having been requested, he was at least required to carry out the analysis mandated by the Supreme Court of Canada in Morin. He did not do so.
[20] Admittedly, at various points in his ruling, the trial judge did refer to matters that could be considered on a s. 11(b) assessment. For example, the charges were serious, Ms. Pan was on bail, and her life was on hold while the charges were outstanding. However, these isolated references do not constitute a proper s. 11(b) analysis.
[21] The trial judge was, therefore, wrong in principle to ground a stay on a denial of Ms. Pan’s s. 11(b) right to a trial within a reasonable time. Had he adjourned the trial, as he ought to have done, Ms. Pan would have been entitled to bring a s. 11(b) motion on a continuation of the trial. Whether such a motion would be successful is not before us.
(iii) Abuse of process because Ms. Pan could not “access her own trial”
[22] The trial judge did not use the words “abuse of process”, but both counsel urged that this is what he meant when he held Ms. Pan could not “access her own trial” because an interpreter was not available for her. I accept counsel’s characterization of the trial judge’s intent. However, a stay for abuse of process because of the unavailability of an interpreter was not justified.
[23] Section 14 of the Charter did guarantee Ms. Pan the right to the assistance of a Mandarin interpreter, as she did not understand the proceedings in English. Without the assistance of an interpreter, she could not have a fair trial. However, the usual remedy for a breach of s. 14 is a rehearing of the proceeding in which the breach occurred: see R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951. In this case, a simple adjournment to a date when an interpreter was available would have addressed the prejudice that would have flowed from proceeding without one.
[24] In addition, the trial judge erred by failing to consider, let alone apply, the proper test for a stay. A stay is a remedy of last resort because it deprives the community of a trial on the merits. It is to be granted only in the “clearest of cases” and usually only if two criteria are met:
• The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
• No other remedy is reasonably capable of removing the prejudice.
See e.g. R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297.
[25] Had the trial judge applied this test, he could not have stayed the charges against Pan because she could not “access her own trial”. Neither criterion was met. Even if she were prejudiced by the unavailability of an interpreter that day, that prejudice would not be “manifested, perpetuated or aggravated” by continuing the trial with an interpreter on another day. Another remedy – an adjournment to a date when an interpreter was available – was “reasonably capable of removing the prejudice”. The trial judge was, therefore, wrong to stay the charges on the ground Pan could not “access her own trial” that day.
[26] In staying the charges against Pan, the trial judge erred in principle and exercised his discretion unreasonably. I would set aside the stay and order a new trial on the charges against Pan.
C. Stay of the Charges Against Ban
[27] The circumstances of Ban’s arrest gave rise to his motion for a stay and to the trial judge’s order granting it. The police knocked on the door, announced who they were and why they were there, and then, on getting no response, battered opened the door and entered the house. They had their guns out. One of the police officers, Holland, found Ban in the basement washroom and tried to arrest him. Ban and the police gave different accounts of what then occurred.
[28] Ban testified that while he was urinating, a police officer confronted him and hit him with the butt of a handgun. Ban said that a number of officers forced him to the floor, kicked him and stepped on him.
[29] Holland, on the other hand, testified that Ban was hiding behind the door in the bathroom with his hands tucked in toward his chest where Holland could not see them. Holland became concerned that Ban might have a weapon. He tried to gain control over Ban by forcing him out of the bathroom and into the hallway. Holland and Ban struggled. During the struggle Ban hit his head on a countertop in the bathroom.
[30] Ban then tried to get away down the hallway. Another police officer, Krause, blocked his way. Krause delivered two or three “knee strikes” to Ban to subdue him. Eventually, Holland and Krause forced Ban to the ground and handcuffed him. Ban was injured in the altercation. He sustained a cut to his forehead, a small cut to his ear, and bruises to his back and torso.
[31] Another police officer administered first-aid to Ban, gave him blankets and water, and arranged for an ambulance to take him to the hospital. Ban was treated in the hospital; the cut on his forehead required 11 stitches. Ban testified that his injuries caused headaches, abdominal pain, and memory and sleep problems.
[32] An officer with Peel Police prepared a use of force report in connection with Ban’s injuries. The report was filed as an exhibit at trial.
(i) Breach of the knock-and-announce rule
[33] The trial judge held that, while the police had a search warrant, they did not conduct the search reasonably, contrary to s. 8 of the Charter. He held that they effected what he called a “dynamic entry” – a “departure from the knock-and-announce rule” without any grounds for doing so. He said:
Particularly, the failure of someone to answer the door within 60 seconds, when one expects fans to be running is not an exigency that justifies a dynamic entry. The knock-and-announce rule is not a knock-and-break-in-the-door-if-no-answer rule. It means that non-violent execution of the warrant must be attempted.
[34] The Crown submits that the trial judge erred in holding that the police did not comply with the knock-and-announce rule. I agree with this submission.
[35] Unless exigent circumstances exist, the police must knock and announce their presence before entering a home. The knock-and-announce rule has been part of our law for over 400 years. The Supreme Court of Canada recently reaffirmed the rule in R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 18:
Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house. In the ordinary case, they should give: “(i) notice of presence by knocking or ringing the door bell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry”.
[36] The rationales for the rule are well known: the protection of the dignity and privacy interests of the occupants of the house, and the enhancement of the safety of the police and the public: see Cornell, at para. 19.
[37] In this case, there were no exigent circumstances that would justify a departure from the knock-and-announce rule. However, the record shows that the police complied with the three components of the rule: they knocked several times, they announced who they were, and they stated their reason for being there – to execute a search warrant. This was not disputed at trial, where counsel for Ban stated in argument, “this is not a lack of knock notice case because there is evidence that there was a knock, a notice given and a short period of time and then the forced entry…”: see Transcript of Proceedings, January 19, 2011, at p. 82.
[38] The trial judge was wrong to say “[t]he knock-and-announce rule is not a knock-and-break-in-the-door-if-no-answer rule”. That is exactly what the rule is. If the police receive no answer, they are entitled to force entry into a home. This corollary to the knock-and-announce rule traces back to the decision in Semayne’s Case (1604), 5 Co. Rep. 91a, 77 E.R. 194 (K.B.), at p. 195:
In all the cases when the King is party, the sheriff (if the doors be not open) may break the party’s house, either to arrest him, or to do other execution of the K.’s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors.
[39] The Supreme Court affirmed this corollary principle in both Cornell and in its earlier decision in Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739.
[40] I accept that there is a subsidiary, but perhaps important, issue arising out of the way the police implemented the knock-and-announce rule. The issue is whether they waited long enough before forcing entry into the home. The knock-and-announce rule requires the police to give the occupants of the home a reasonable amount of time to answer: see e.g. R. v. Cao, 2008 BCSC 139, 167 C.R.R. (2d) 120. Whether the 30 to 40 seconds the police waited in this case was a reasonable amount of time may have to be considered at the new trial.
[41] The trial judge did express concern that the police waited less than one minute before entering the home. That was not, however, the focus of his finding that they ignored the law. Instead, he focused on the police’s “dynamic entry”. He held that the dynamic entry, unless justified, amounts to a breach of the knock-and-announce rule. That holding was an error of law.
[42] The stay imposed by the trial judge flowed from his holding that the Crown had failed to justify a departure from the knock-and-announce rule:
The duty to engage in analysis of the need to depart from the knock-and-announce rule is not a guideline; it is a prerequisite to the lawfulness of the decision. The need for some basis for such a decision is not preferable; it is obligatory.
The obligation on the Crown to lead evidence to justify the decision is a prerequisite to a finding by the court, if one is to be made, that the departure was necessary. The police did not know what the law was; did not care; and did not comply with it. An occupant of the house received serious, foreseeable injuries. There is nothing unclear about this case. Anything short of a stay would be an expression of approval of the police decision to ignore the legal requirements of the execution of the warrant in this manner.
[43] The trial judge erred in holding that the Crown was required to justify a departure from the rule. The record shows that the police complied with the three components of the rule.
(ii) Breach of section 7 of the Charter
[44] Although the trial judge found that the police did not conduct the search reasonably because of their “dynamic entry” to the home, he rested his stay order on a breach of s. 7 of the Charter. He held:
While this could be dealt with as a Section 24(2) analysis, it is better dealt with by Section 7 and 24(1). The decision to use dynamic entry put the safety of all the occupants at risk. The injuries to Mr. Ban were serious and foreseeable. The exigency was created by the police. There was not only no basis to use a violent entry but there was an apparent unawareness or indifference to the legal prerequisites for so doing.
[45] Even accepting the trial judge’s finding that Ban’s injuries were “serious and foreseeable”, that finding does not make out a breach of s. 7 of the Charter. To show that his s. 7 right to security of the person was violated, Ban had to show a substantial interference with his physical or psychological integrity or with the integrity of the justice system. He sought to do so by claiming that the police used excessive force in arresting him. He contended that a police officer hit him with a handgun. The trial judge rejected Ban’s evidence, but then made no finding of fact about what did happen:
While I do not accept the evidence of pistol-whipping, I am not getting a reliable account of the circumstances in the infliction of the bodily harm on Mr. Ban from the police, and that goes to the issue of good faith.
[46] Thus, the trial judge did not make a finding that Ban was injured because the police used excessive force to arrest him. Instead, the trial judge found only that Ban’s injuries were a foreseeable consequence of an unjustified dynamic entry.
[47] Excessive force may give rise to a breach of s. 7 if it substantially interferes with an accused’s security of the person interest. The use of force that is not excessive – even force that gives rise to foreseeable injury – would not likely amount to a breach of s. 7. The police are entitled to use force to make an arrest as long as the force used is proportional, reasonable and necessary: see R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206.
[48] In this case, absent a finding that the police used excessive force to arrest Ban, I do not see how the trial judge could find a breach of s. 7 of the Charter: see R. v. Gangl, 2011 ABCA 357, 515 A.R. 337.
(iii) Section 24(1) of the Charter
[49] In ordering a stay of the charges against Ban for abuse of process, the trial judge relied on this court’s decision in R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131. He held, correctly, that under s. 24(1) of the Charter, the court retains discretion to stay proceedings “where to do otherwise would amount to a judicial condonation of unacceptable practices.” This discretion is to be exercised in exceptional circumstances. It may be exercised even where abusive police conduct does not affect trial fairness if the abuse is so “egregious that the mere fact of going forward in the light of it will be offensive”. In those exceptional circumstances, a stay under s. 24(1) is an “appropriate and just” remedy: see Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997], 3 S.C.R. 391; R. v. Regan.
[50] Tran was such a case. However, the facts pertaining to Ban were far removed from those pertaining to Tran.
[51] Tran was a case of despicable police brutality. The trial judge found that the police used excessive force, gratuitously beating Tran because he would not make a statement after he had voluntarily turned himself in. The police lied to cover up their actions. They also delayed getting Tran the medical attention he needed. Moreover, the state’s misconduct did not end there, as the offending officers were permitted to assist the Crown in the prosecution of the case. Epstein J.A., who wrote the court’s reasons, held that this was one of those exceptional or clearest of cases warranting a stay for police misconduct.
[52] In the present case, the police did not use excessive force to arrest Ban. They did not cover up their actions; instead, they reported what had occurred to a superior officer and filled out a formal use of force report. They also arranged immediate medical attention for Ban. Tran cannot be used to support a stay in this case.
[53] The trial judge did not analyze the differences between this case and Tran. Instead, after referring to Tran, he grounded the stay in the original entry into the home, which he found to be unlawful. For convenience I repeat this part of his reasons:
The obligation on the Crown to lead evidence to justify the decision [to depart from the knock-and-announce rule] is a prerequisite to a finding by the court, if one is to be made, that the departure was necessary. The police did not know what the law was; did not care; and did not comply with it. An occupant of the house received serious, foreseeable injuries. There is nothing unclear about this case. Anything short of a stay would be an expression of approval of the police decision to ignore the legal requirements of the execution of the warrant in this manner.
[54] I have already outlined why the trial judge erred in finding that the police departed from the knock-and-announce rule. But even if they did depart from the knock-and-announce rule – by, for example, not waiting long enough before forcing entry into the home – that departure would hardly be so egregious that it would turn this case into one of those exceptional cases requiring a stay. As with Pan, the trial judge erred in principle and exercised his discretion unreasonably in staying the charges against Ban. I would set aside the stay and order a new trial for Ban.
(iv) Other issues
[55] The Crown, quite understandably, raised other concerns about the trial judge’s reasons. I will deal briefly with three of these concerns.
[56] First, the trial judge relied on his own experience to find that marijuana grow operations in the Peel Region did not present a risk of violence:
Whatever may be the case in other jurisdictions, the dozens of grow-ops I have dealt with in this jurisdiction by way of pre-trials, pleas, trials and preliminary hearings have disclosed no basis whatsoever for a generalized concern of a violent response to police in this context.
[57] I agree with the Crown that the trial judge’s observation amounts to taking judicial notice that no risk of violence existed. A court can take judicial notice of a fact in only two circumstances: first, if the fact is so notorious and generally accepted that reasonable persons would not debate it; and second, if the fact is capable of immediate or accurate demonstration by resort to readily accessible sources of undisputed accuracy: see R. v. Manjra, 2009 ONCA 485, 250 O.A.C. 257, at para. 21. The trial judge’s observation does not meet either criterion for taking judicial notice.
[58] Second, the trial judge discounted virtually all of the police evidence. I do not find it necessary to review his findings because, even accepting them, his stay order cannot stand. However, I should not be taken as agreeing with these findings. As the trial Crown pointed out, during argument the trial judge made this telling comment about the officers’ testimony:
They’re certainly not going to testify against each other if there is any wrong doing and they’re certainly not going to have any memory of what occurred if there was wrong doing…
This comment may well have affected the trial judge’s assessment of the officers’ evidence and their credibility.
[59] Finally, although the trial judge stayed the charges against Ban, he stated that if he were wrong, there was “insufficient evidence of participation to ground a conviction". This statement has no legal effect. The trial judge did not acquit Ban. He stayed the charges against him.
D. conclusion
[60] I would allow the Crown’s appeal, set aside the stays of the charges against Pan and Ban, and order a new trial for both respondents.
Released: Sept. 10, 2012 “John Laskin J.A.”
“JL” “I agree K. Feldman J.A.”
“I agree David Watt J.A.”