R. v. Salmon, 2013 ONCA 203

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Citation: R. v. Salmon, 2013 ONCA 203 Date: 20130402 Docket: C53928

Before: MacPherson, Blair and Juriansz JJ.A.

Between:

Her Majesty the Queen Appellant

and

Courtney Salmon Respondent

Counsel: Michael Bernstein, for the appellant Dirk Derstine and Ariel Herscovitch, for the respondent

Heard and released orally: March 28, 2013 On appeal from the judgment of Justice Douglas K. Gray of the Superior Court of Justice dated June 1, 2011.

ENDORSEMENT

1The Crown appeals from the ruling of the trial judge staying 17 charges against the respondent for a variety of offences, including human trafficking, living on the avails of prostitution, and offences relating to the possession and use of forged identification. The trial judge found that the police had fabricated evidence to make it appear that two pieces of false identification in the name of the complainant had been found in the respondent’s wallet at the time of his arrest, and that at least one police officer then lied about it in testimony. In fact the complainant had left the pieces of identification at the police station.

2The trial judge found there had been an abuse of process and a violation of his section 7 Charter rights. He stayed the proceedings on the basis that the police fabrication of evidence such as he found occurred in this case, so clearly contravened fundamental notions of justice and undermined the integrity of the criminal judicial process that it was necessary to dissociate the court from the continued prosecution of the case.

3We are not persuaded that the trial judge made palpable and overriding errors in reaching his findings of fact and credibility.

4First, the Crown submitted that the trial judge failed to consider there had been disclosure of the complainant’s statement that false identification had been in her possession and she had turned it over to the police. The Crown argues that since the complainant clearly stated that she possessed the identification it was highly improbable the police would attempt to plant the identification on the respondent. The Crown, however, could not show us that the complainant did state in her disclosed statement that she was in possession of her fake driver’s licence and Canadian citizenship certificate and that she turned them over to the police. The most that can be said is that the fact that she did turn the fake identification to the police could be inferred on a careful reading of her statement and testimony at the preliminary inquiry. In any event, the trial judge noted the complainant had turned the fake identification over to the police and specifically stated that he had been “mindful of the inherent probabilities or improbabilities”. We would not give effect to this ground of appeal.

5The Crown argued that the trial judge misplaced the burden of proof. In advancing this argument the Crown relies on the trial judge’s statement “in order to find that there is an innocent explanation for what occurred, I would need to accept as accurate Constable Wang’s evidence before me, as well as the evidence of a number of other police officers…”. When read in context, this statement provides no support for the Crown’s argument that he placed an onus on the police to provide an innocent explanation for what occurred. The trial judge paid close attention to the burden of proof. It is clear he made no error when his reasons are read a whole.

6The Crown argued the trial judge’s reasoning was illogical and could not stand because he found there was sufficient evidence to prove there was a scheme to fabricate and cover up evidence, but not enough evidence to identify which officers were involved in the conspiracy. We see no logical faults in the trial judge’s reasoning in this regard.

7In our view, the evidence in the record provided adequate support for the factual findings of the trial judge and supported his conclusion on a balance of probabilities. We are not persuaded he made any palpable or overriding errors in reaching them.

8The trial judge’s findings and conclusions led directly to the conclusion that there was an abuse of process and a violation of the respondent’s s. 7 rights.

9The Crown argues that in fashioning the remedy, the trial judge failed to take into account society’s interest in the prosecution of these serious charges. The Crown points to the trial judge’s statement that: “The fabrication of evidence is an affront to decency and fair play. It precludes any further investigation of the societal interest in the prosecution of the case”. The key word here, however, is the word “further”. This, together with his reasons read as a whole, shows that the trial judge did have in mind the societal interest in the prosecution of the case. A balancing of interests is apparent in his finding that the police conduct in this case was so egregious that only a stay could serve society’s interest in preserving the integrity of the judicial system.

10We have not been persuaded the trial judge made any errors. The appeal is dismissed.