Court of Appeal for Ontario

Date: 2018-01-22

Docket: C62143

Judges: Sharpe, Watt and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Robert Hansen Appellant

Counsel:

• Gregory Lafontaine, for the appellant
• Randy Schwartz, for the respondent

Heard: December 22, 2017

On appeal from: The conviction entered on January 29, 2016 and the sentence imposed on May 19, 2016 by Justice Catrina D. Braid of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Introduction

1The appellant was convicted of one count of perjury and two counts of attempting to obstruct justice after a trial before a judge of the Superior Court of Justice sitting without a jury. The trial judge imposed a sentence of imprisonment for five years on each count and directed that the sentences be served concurrently.

2The appellant appeals both conviction and sentence.

3At the conclusion of argument, we dismissed both appeals. We promised to provide reasons for our decision. These reasons fulfill that promise.

The Background Facts

The Principals

4Essential to an understanding of the issues raised in this court is a description of the circumstances upon which the convictions are grounded.

5During the events that provide the genesis of this prosecution, Robert Hansen was a detective constable in the Gangs and Weapons Unit of a police force. Among his duties were the investigation of drug, gang and firearms offences. Frequently these investigations involved contact with confidential informers (CIs).

6In May, 2012 the appellant received information from CIs designated as A, B and C. From these sources, he learned about the activities of a suspected local drug dealer. The appellant did not meet any of these CIs. He communicated with his primary source, C, by text message using a Blackberry smart phone supplied by the police force of which he was then a member.

The Case for the Crown

7The case of the Crown consisted mainly of text messages between the appellant and Source C during a two-week period in the latter half of May, 2012. It also included the information to obtain a search warrant (the ITO) under s. 11 of the Controlled Drugs and Substances Act (the CDSA) prepared by the appellant based principally on information received from the three CIs. The warrant authorized the search of the residence of Darren Mork for cocaine and related drug paraphernalia.

8The Crown alleged that the appellant participated in a plan according to which Source C would place a gun in Mork's residence, and advise the police that he had done so. The police would then obtain and execute a search warrant at Mork's home and seize the gun. Charges against Mork arising out of the execution of the CDSA warrant would ensure that Mork was "put away" for some time.

The Text Messages

9Around the middle of May, 2012 Source C sent a text message to the appellant about Mork. Source C claimed that Mork, a drug dealer, was "fucking around" with Source A, the girlfriend of Source C. To stop Mork's involvement with his girlfriend, Source C proposed to set Mork up. The appellant agreed that Mork could "use some jail time" and asked what Source C had in mind.

10Source C proposed that he would set Mork up by placing a gun, used in a previous shooting, in Mork's home. The appellant agreed with the proposal, which he said would lock up Mork for several years, but told Source C that it was best that he not know all the details of the plan.

11Source C also negotiated with the appellant for payment in return for setting up Mork. The appellant said that the amount would be difficult to determine without the plan being executed, but "guessed" that the payment could be $1,000 or $1,500.

12In several text messages exchanged over the next few days, Source C suggested informing on other drug dealers and negotiated for payments of several thousand dollars for "ratting" on them and setting up Mork. Source C reminded the appellant that police would get Mork with a gun. The appellant described Mork and another suspected drug dealer as "good" [targets].

13In a text on May 23, 2012, Source C said he was angry at his girlfriend and was reconsidering his plan to set up Mork and "rat" out the other alleged drug dealers. Source C had previously asked the appellant to help with his drug addiction and said he didn't want to disappoint the appellant. In response, the appellant encouraged Source C to carry out the plan and pointed out that setting up Mork with a gun would be "especially" helpful. Source C made it clear that he would be setting up Mork with a gun that was not his (Source C's) own gun, rather was one he would get from his girlfriend's (Source A's) father.

14On May 24, 2012 Source C told the appellant that he planned to pick up the gun from Source A's father and go to Mork's house to complete a drug deal. While there, Source C would plant the gun at Mork's house and leave. The appellant asked Source C when the mission would be accomplished, explaining that he (the appellant) would need to wait until advised by Source C that "it went ok". Later on May 24, 2012 Source C reported to the appellant that he (Source C) had suffered a drug-related seizure and was unable to plant the gun at Mork's home as planned on that day.

15On May 25, 2012 Source C texted the appellant to advise him that he had the gun and would "get it done" that day. About an hour later, Source C advised the appellant that he had planted the gun in a secure place where Mork would not find it. Source C expressed concern about his fingerprints on the gun, but the appellant assured him that he would "take care of it".

The ITO

16Less than an hour after Source C advised him that and where the gun had been planted at Mork's house, the appellant submitted an ITO to a justice of the peace for a s. 11 CDSA search warrant for Mork's residence. The justice of the peace issued the warrant, which authorized a search for cocaine and related drug paraphernalia. No warrant was sought to search for and seize the gun Source C claimed to have planted in a couch at Mork's home.

17In the ITO the appellant recounted information he had received from Sources A, B and C.

18In connection with the handgun at Mork's home, the appellant recounted several reports from Source C about having heard about, then later seen a handgun, of a specific manufacture and model, hidden in the cushions in a sofa in the basement of Mork's house.

19Absent from the ITO was any mention of the origins of the gun at Mork's home, more specifically, that it had been planted there by Source C with the express agreement, if not the urging, of the appellant, so that Mork could be taken out of circulation for a significant period of time.

20In the ITO, the appellant described Source C's motivation for informing on Mork as being that he was "sick of drug dealers taking advantage of others". The appellant omitted any reference to the nature of the relationship among Sources A and C and Mork. Further, the appellant made no mention of Source C's specific animus towards Mork, his desire for revenge or his financial motivation for providing information.

21In connection with Source B, the appellant described his motivation as a desire to eliminate Mork as competition in the drug trafficking business. What the appellant failed to point out was that Source B's real motive was to provide information on those, such as Mork, who had ripped him off in prior drug transactions.

22The appellant also included in the ITO a claim that Source C had seen plastic wrap and scales at Mork's home, items commonplace in a drug trafficker's tool kit. But Source C said nothing about plastic wrap, nor about scales, apart from having left a set of his own scales behind at Mork's home.

The Execution of the Warrant

23The CDSA warrant authorized police to search for and seize cocaine and related drug paraphernalia. The warrant contained no mention of a handgun. Police found no handgun when they executed the warrant.

The Appellant's Explanation

24The appellant testified. He offered four principal explanations for the omissions and inconsistencies between the information provided by Source C and what he included in the ITO.

25First, innocent error. The appellant acknowledged that as the affiant in an ex parte application, he was required to make full, fair and frank disclosure of all material facts. He said his mistakes were innocent errors which he attributed to rushed preparation and the density and complexity of the text messages that he was required to quickly summarize in the ITO.

26Second, protecting the confidentiality of Source C. The omission of details about planting the gun was necessary, the appellant said, because their inclusion could have revealed the identity of Source C. But, as the appellant acknowledged in cross-examination at trial, various measures, such a sealing order and editing, were available and used here to ensure that Source C's identity was not revealed. The appellant also conceded that many of the details provided in the ITO would furnish a basis upon which Source C could be identified. He could not explain how omission of the agreement to plant the firearm would be any more likely to identify Source C than other details already provided.

27Third, irrelevance. The appellant claimed that reference to the firearm was "tangential" since he sought and obtained a CDSA warrant to search for and seize drugs and drug paraphernalia. Yet the ITO included repeated references to the handgun at Mork's place. Among the references was this in paragraph 42:

Disturbing information is included that a handgun is being is [ sic ] stored in the basement and there was a suggestion it has already been used at least once in a local shooting. Police may well be negligent not to attempt to enter and search when firearms are present.

28Fourth, uncertainty. The appellant explained that it was not clear to him whether Source C was reporting on a gun that Mork had at his house or on a plan to plant a gun at Mork's house. In cross-examination, however, he acknowledged that two days before he completed and swore the ITO he understood that the plan was to plant the gun, an understanding that became even more clear the next day.

29The trial judge rejected the appellant's explanations in their entirety.

The Appeal from Conviction

30The overarching submission advanced by the appellant is that the convictions entered by the trial judge are unreasonable. The unreasonableness is said to be the product of several flaws in the trial judge's reasoning. She made palpable and overriding errors in making adverse credibility findings in connection with the appellant's testimony. She erroneously rejected a reasonable interpretation of some events in favour of an interpretation adverse to the appellant that was not reasonable. She misinterpreted the evidence about the motivation of Source C and found guilt established on the third count in the complete absence of evidence of an essential element of that offence.

31In our view, as we will explain, each of these complaints fails when examined in the light of the trial judge's reasons as a whole and the overwhelming nature of the case for the Crown.

Ground # 1: Adverse Credibility Findings

32The appellant acknowledges that the trial judge properly approached her credibility findings by referring to the decision in R. v. W(D), [1991] 1 S.C.R. 742. Further, the appellant accepts that a trial judge's findings on credibility attract a significant degree of deference on appeal. On the other hand, the appellant says, appellate intervention is warranted, as here, where, on consideration of all the evidence adduced at trial, the trial judge's credibility determination cannot reasonably be supported by the evidence or where it depends on a misapprehension of evidence on a material issue.

33In our view this ground of appeal fails.

34After reciting the W(D) formula and reiterating the absence of any onus on the appellant to establish his innocence, the trial judge rejected the appellant's testimony as making no sense in light of the text messages and the ITO which constituted the case for the Crown. It is well settled that it is open to a trial judge to reject the testimony of an accused because of the cumulative force of the contrary evidence adduced by the Crown: R. v. D(J.J.R.), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53.

35In her lengthy and thoughtful reasons, the trial judge identified ten aspects of the appellant's testimony that she found troubling and cumulatively warranted its rejection. Each of the reasons were firmly rooted in the evidence and did not involve speculation or invoke any prohibited chain of reasoning. The reasons are internally consistent and not contradicted by any findings of fact made by the trial judge.

Ground # 2: Unreasonableness of Conviction of Perjury

36The perjury count involved an allegation that the appellant swore falsely in the ITO that Source C had told him that he (Source C) had heard that Mork had a handgun used in a prior shooting hidden in his residence.

37The appellant says that the conviction on this count is unreasonable because the trial judge wrongly rejected a reasonable interpretation of the texts of May 16, 2012 offered by the appellant in his testimony at trial. That interpretation was that Source C's text supported the appellant's conclusion that the gun was already in Mork's house.

38It is a commonplace that, as the trier of fact, it was open to the trial judge to draw inferences from the evidence adduced at trial. Where an item of evidence may give rise to more than one reasonable inference, a trial judge does not act unreasonably by drawing one available inference rather than another. This is what trial judges do. That an appellant disagrees with an inference drawn by a trial judge from the field of reasonable inferences available on the evidence adduced at trial, does not, on its own, establish that the verdict is unreasonable.

39More to the point, however, is that irrespective of the inference drawn from the May 16, 2012 text sent by Source C, the appellant acknowledged that, at the very least on May 24, 2012, the day before completing, swearing and presenting the ITO to the justice of the peace, he knew that Source C was going to plant the gun at Mork's house. With this knowledge, the inference is irresistible that he intentionally provided false information in the ITO and that he did so with the intention of misleading the issuing justice of the peace.

Ground # 3: Unreasonableness of Conviction of Obstruct Justice (Count 2)

40The second count of the indictment alleged that the appellant attempted to obstruct justice by causing the justice of the peace to issue the CDSA search warrant on the basis of the appellant's ITO that contained false statements, material omissions and misleading information.

41The appellant contends that the finding of guilt was coloured by the trial judge's flawed assessment of the appellant's credibility; her misapprehension of the evidence about the provenance of the gun said be in Mork's residence and her defective rejection of the appellant's explanation about the scales and plastic wrap at Mork's house.

42We reject this claim of unreasonableness.

43First, we have already repudiated the appellant's submission that the trial judge's credibility analysis was flawed, a conclusion that removes it as a factor in the unreasonable verdict complaint about count two.

44Second, a conviction on count two follows inevitably from our determination that the conviction of perjury on count one stands. Submission of knowingly false ITO with intent to mislead a justice to issue a search warrant plainly amounts to a wilful attempt to obstruct, pervert or defeat the course of justice under s. 139(2) of the Criminal Code.

45Third, evidence of additional false and misleading statements in the ITO established the appellant's guilt on count two. The trial judge focused on deliberately embellished and intentionally omitted and misleading facts about:

i. planting the gun and setting up Mork;

ii. the motivation of Source C;

iii. the motivation of Source B; and

iv. the presence of scales and plastic wrap.

Her conclusions on these issues were not cumbered by legal error or misapprehension or failure to consider relevant evidence and are plainly reasonable.

Ground # 4: Unreasonableness of Conviction of Obstruct Justice (Count 3)

46The third count of the indictment alleged that the appellant attempted to obstruct justice by encouraging Source C to place a gun in Mork's home with intent that it would be used as evidence in a judicial proceeding.

47The appellant says that the conviction on count three was unreasonable because it was made in the absence of any evidence that the appellant intended that the gun would be used as evidence in any subsequent proceedings; in the face of evidence that the appellant's purpose was not to charge Mork for possession of the gun, rather to get the gun off the street; and without considering two earlier text messages that tended to support the appellant's claim that he considered the assistance Source C provided about Mork separate from the assistance Source C gave in surrendering the gun.

48We declined to give effect to this ground of appeal.

49In our view, the text message exchange on May 23, 2012, two days before completion and submission of the ITO, provides incontrovertible proof of the appellant's guilt on this count. Source C was getting cold feet about planting the gun. His motive – to gain revenge on Mork for "fucking around" with Source A – was fading because of a falling out Source C had with Source A. The appellant pointed out that without Source C's help, Mork would not "get done". The appellant explained that Source C's help would "help tons…especially the heat". By encouraging Source C to carry out the plan, the appellant abetted Source C's proposed offence. Whether the appellant planned to use the gun as evidence in the prosecution of Mork would not seem an essential element of the offence, in light of the appellant's plan to "lock up" Mork "for several years".

50In the result, the appeal from conviction is dismissed.

The Appeal from Sentence

51The appellant also appeals the sentence of five years imposed by the trial judge on each count, sentences the trial judge directed were to be served concurrently, one with the others.

52At trial, the Crown sought a penitentiary sentence of six years, the defence a sentence of 14 months.

53In this court, the appellant contends that the trial judge erred in imposing a sentence that was unduly harsh, well in excess of any sentence justified by the limited sentencing precedents available. The trial judge's sentencing analysis, according to the appellant, was further flawed by inconsistent findings about aggravating factors and misapprehensions of relevant evidence.

54We are not persuaded that there is any basis upon which we are entitled to interfere with the sentence imposed at trial.

55The offence of perjury, for that matter, the crime of attempting to obstruct justice, strike at the very soul of the judicial system. Each rents the fibre of the intricate scheme that we as a society have designed to determine whether the guilt of one accused of crime has been proven beyond a reasonable doubt. Each offence is easy to commit. Both are hard to prove. Those found to have committed either must expect severe punishment.

56Police officers occupy a special position of trust in the community. It is all the more so in the criminal justice system. As justice system participants, they owe a duty to the public to uphold the values of the criminal justice system. They have a duty to investigate crime in accordance with the law.

57The paramount sentencing objectives in this case are denunciation and deterrence. Neither the jeopardy of the loss of employment nor the likelihood of and deterrence, much less accord appropriate weight to the aggravating factor of breach of trust.

58The sentence imposed in this case is substantial. This is as it should be. It represents an appropriate application of the governing objectives and principles of sentencing, including the fundamental principle that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

59In the result, leave to appeal sentence is granted, but the appeal from sentence is dismissed.