COURT FILE NO.: CR-17-90000522-0000 DATE: 20190506
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – MIGUEL ORLANDO ZAVALA-MARTINEZ Accused
Counsel: Andrew Choat & Arielle Elbaz, for the Crown Reid Rusonik, for the Defendant
HEARD: March 15, 2019
B.A. ALLEN J.
REASONS FOR DECISION ON SENTENCING
(Charter of Rights violations, Reduction in Sentence Application)
PROCEDURAL BACKGROUND
[1] Miguel Orlando Zavala-Martinez was convicted by a jury of possession of cocaine for the purpose of trafficking. The Toronto Police Service was involved in an investigation of suspected drug dealing at a Toronto sports bar. The target of this investigation was Mr. Zavala-Martinez. The police entered the bar under a search warrant, arrested him and charged him with possession of cocaine for the purpose of trafficking as well as possession of proceeds of crime. He was acquitted on the proceeds charge.
[2] Mr. Zavala-Martinez was represented at trial by David Rovan. He retained new counsel, Reid Rusonik, for sentencing. On the scheduled date for sentencing the defence brought an application for a mistrial asserting that Mr. Zavala-Martinez’s previous counsel provided ineffective legal assistance for failing to bring an application to challenge the validity of the search warrant on for breaches under sections 8 and 9 of the Charter of Rights and Freedoms and under s. 7 for failure to disclose materials related to the warrant.
[3] I denied that application in my decision rendered February 6, 2019 holding that I am functus following the jury’s verdict and that the defence’s remedy for its mistrial application based on ineffective legal assistance is through the appeal process.
DISCLOSURE
[4] By way of background, there were two previous ITOs, one refused on June 3, 2016 and the other on June 16, 2016. The search warrant was executed on the bar pursuant to an ITO sworn on June 17th. The defence submits that the Crown has breached Mr. Zavala-Martinez’s s. 7 Charter right to full answer and defence for failing on this application to disclose source materials and the investigative files for the refused ITOs and executed search warrant.
[5] The Crown indicated it had disclosed to previous counsel the ITO related to the search warrant that was executed on June 17th. That ITO outlined the bases for the refusal of the unsuccessful ITOs. In response to the defence’s contention that the disclosure that is now available ought to have been disclosed to previous counsel, the Crown responded that Mr. Rovan did not request such disclosure because he was not bringing a Charter challenge on the admissibility of the drugs.
[6] The Crown indicated that by the time of this sentencing hearing, it had delivered the relevant disclosure requested by the defence. The Crown disclosed the investigative file related to the refused ITOs and the June 17th ITO, and provided a summary in response to the defence’s disclosure questions. Defence counsel indicated that the outstanding disclosure, which it attempted to obtain, is the disclosure related to the application to search Mr. Zavala-Martinez’s apartment, which search was not approved. I find that disclosure is not directly relevant to the issue on this application. The Crown has indicated they have provided all available disclosure requested to the best of their ability.
[7] I do not find there is a disclosure issue on this application and therefore I see no breach of s. 7 of the Charter. In any event, the defence has indicated, and I find, that it had sufficient disclosure to argue this application.
REDUCTION IN SENTENCE
The Law
[8] The pivotal case to look to when considering the appropriateness of a reduction in sentence is the Supreme Court of Canada case in R. v. Nasogaluak, 2010 SCC 6, [2010] 1. S.C.R. 206 (S.C.C.).
[9] In that case the police received a tip about an intoxicated driver. They followed the driver in a high-speed chase. When the vehicle stopped, the police removed the driver forcefully. When he resisted, the police punched him in the head while removing him from the vehicle. Once the driver was out of the vehicle he continued to resist and the police yelled at him to stop resisting. The police punched him in the head again and pinned him face-down on the pavement while an officer straddled his back and another officer placed their knee in his thigh. When he refused to give his hands for cuffing, another officer punched him twice in the back breaking his ribs. He sustained a punctured lung.
[10] At trial the accused pleaded guilty to impaired driving and flight from police. At sentencing the judge found the police had used excessive force and breached his rights under s. 7 of the Charter. As a remedy under s. 24(1) of the Charter the court reduced sentence and ordered concurrent 12-month sentences for the driving offences.
[11] The Court of Appeal found there was sufficient evidence to impose a reduced sentence based on Charter violations. But not sufficient to go below statutory minimum limits. The Supreme Court of Canada held there are limits to a sentencing judge’s discretion. The Supreme Court opined that a sentencing judge can impose a sentence outside the general range set by case law only when the sentence is in accordance with the principles and objectives of sentencing. The sentencing judge cannot override legislative intent and reduce a sentence below a statutory mandated minimum, absent a declaration that the minimum sentence is unconstitutional: R. v. Nasogaluak, at paras. 44 and 45.
[12] The Supreme Court made the following further observation:
Thus it may, at times, be appropriate for a court to address a Charter breach when passing sentence. This may be accomplished without resort to s. 24(1) of the Charter, given the court’s broad discretion under ss. 718 to 718.2 of the Criminal Code to craft a fit sentence that reflects all the factual minutiae of the case. If the facts alleged to constitute a Charter breach are related to one or more of the relevant principles of sentencing, then the sentencing judge can properly take those facts into account in arriving at a fit sentence. Section 718.2(a) of the Code provides that a court should reduce a sentence “to account for any relevant . . . mitigating circumstances relating to the offence or the offender”. It would be absurd to suggest that simply because some facts also tend to suggest a violation of the offender’s Charter rights, they could no longer be considered relevant mitigating factors in the determination of a fit sentence.
[13] The Court goes on to establish that when Charter violations are advanced as mitigating factors, “the circumstances of the breach would have to align with the circumstances of the offence or the offender, as required by s. 718.2 of the Code. The more egregious the breach, the more attention the court will likely pay to it in determining a fit sentence.” R. v. Nasogaluak, at para. 48.
[14] In Nasogaluak, a Charter violation had been proven under circumstances where state misconduct was excessive and violent. There are also Ontario cases where sentencing judges have imposed reduced sentences where the offender had been physically assaulted by the police: for instance, R. v. Singh, 2012 ONSC 2028, at para. 16 (Ont. S.C.J.) and R. v. Way, 2016 ONSC 5052, at paras. 225, 236 (Ont. S.C.J.); R. v. Acheampong, 2018 ONCJ 798, 2018 CarswellOnt 1928, at para. 75 (Ont. C.J.).
[15] There are also cases where state misconduct did not amount to violence and where the violation was proven at trial. Reductions in sentence were granted where police unlawfully searched an accused’s locker and arbitrarily detained him; where the Crown stayed charges against an accused and the police did not release him from custody; where the police questioned an accused in violation of s. 10(b) and asked him to empty his pockets in violation of s. 8: respectively, R. v. Lam, 2014 ONSC 5355, at para. 21 (Ont. S.C.J.); R. v. Judd, 2016 ONCJ 781, at paras. 16 and 25 (Ont. C.J.); and R. v. Williams, 2015 ONSC 322, at paras. 36-37 (Ont. S.C.J.).
[16] Unlike the case at hand, in the above-noted cases, R. v. Lam and R. v. Judd, pre-trial admissibility hearings under s. 24(2) were held and evidence on Charter violations from those hearings was considered on sentencing.
[17] In R. v. Lam, evidence about police misconduct in violation of sections 8 and 9 was reviewed on sentencing where evidence had been excluded in relation to some of the charges, charges for which the offender was acquitted. Bribery charges remained so the evidence of police misconduct was considered in reduction of sentence on the bribery charges. In R. v. Williams a s. 24(2) hearing was held in relation to sections 10(b) and 8 violations where the accused was not successful. Evidence from that hearing was considered in reduction of sentence.
[18] There are other cases when a reduction of sentence was considered where Charter violations occurred that did not involve violence and where a violation was not proved at trial. In R. v. Strong, unlike R. v. Lam and R. v. Judd, an admissibility hearing had been brought but was ultimately abandoned.
[19] Similar to R. v. Nasogaluak, the accused in R. v. Strong pleaded guilty so there was no trial or voir dire evidence before the court. Similar to the case before me, with no admissibility hearing having been conducted, the sentencing judge was asked to consider calling viva voce evidence from a police officer to address the issue of the alleged Charter violation.
[20] Citing R. v. Nasogaluak, the sentencing judge in R. v. Strong found there is no obligation to prove a Charter violation in order to warrant a reduction of sentence for state misconduct. The defence was permitted to file as an exhibit a transcript of an officer’s preliminary inquiry testimony for evidence of police misconduct. The judge contemplated the sufficiency of the transcript and considered adjourning sentencing to hear evidence from the police officer on the alleged violation. As it turns out, the witness was not called and the defence was allowed to rely on the transcript.
[21] In the end, the judge did not find the Charter violation sufficient to allow a reduction in sentence where the police continued to question an accused after he asserted a right to counsel: R. v. Strong, 2017 ONSC 3163, at paras. 69 and 77 (Ont. S.C.J.).
[22] A Charter application for a stay of proceedings under s. 24(1) was considered by the sentencing judge in a recent case where Nasogaluak was not considered. The Ontario Superior Court allowed a Charter application to in part be brought at sentencing. The accused applied for a stay of proceedings under s. 24(1) because his right to a prompt trial had been breached in violation of s. 11(b). The case involved trial delay while the accused remained in deplorable conditions in pre-trial custody: R. v. Charley, 2018 CarswellOnt. 10243, 2018 ONSC 3551, at para. 84 (Ont. S.C.J.).
[23] Nasogaluak refers to cases where sentence was reduced when there was Charter violating state misconduct and where a s. 24(1) stay was not invoked. Each of those cases involved violent state action.
[24] In one case, an offender fled the police after committing a break-and-enter. After an officer fired a shot into the air, the offender returned to the scene unarmed and unaggressive with the intent to surrender. The officer grabbed the offender by the hair and threw him onto the pavement. The officer lifted him back up and dragged him by the hair. The officer threw him onto the ground again and, with the other officer’s foot firmly placed on the accused’s neck, handcuffed him. The offender did not resist arrest or attempt to escape.
[25] On appeal, the judge reduced the sentence of the trial judge to six months and observed that it is within the ambit of the appellate court to review fitness of sentence and consider all that is known about the offender and the offence which bear on the public perception of justice: R. v. Pigeon, (1992) 73 C.C.C. (3d) 337, at para. 343 (B.C.C.A.).
[26] In R. v. Munoz an offender’s overall sentence was reduced. While awaiting trial for serious offences including robbery and aggravated assault, the accused was subject to acts of physical violence by the guards and was forced to wear a degrading prisoner uniform called a “baby doll”. The sentencing judge found the treatment of the offender by the police was “grossly disproportionate to the punishment that was appropriate”. Taking breaches under sections 7 and 12 of the Charter into account together with the offender’s pre-trial custody, the sentencing judge ordered a sentence of two years less a day in jail. The court did not cite s. 24(1) as authority for the sentence reduction: R. v. Munoz, 2006 ABQB 901, 69 Alta. L.R. (4th) 231 (Alta. Q.B.).
[27] In sum, it is not unheard of for Charter challenges to be brought on sentencing and sentences reduced as a result of proven violations by state misconduct. Sentences have also been reduced where s. 24(1) was not invoked and a violation had not been proven and the sentencing judge accepted evidence of a violation. While sentence reduction has been granted where the violation does not involve violent or aggressive action by the state, most often sentences have been reduced when state action has involved egregious acts of violence and abuse.
[28] As observed by Nasogaluak, s. 718.2(a) of the Code provides that a court should reduce a sentence to account for any relevant mitigating circumstances relating to the offence or the offender. This means a connection must be drawn between the misconduct and either the offence or the offender. To establish this connection consideration must be given to the impact the misconduct had on the offence or offender.
The Defence’s Position
[29] The offence of possession of a Schedule I drug like cocaine for the purpose of trafficking can attract a substantial custodial sentence. Mandatory minimum custodial sentence does not apply in this case as the offence did not involve a criminal organization, use of violence or a weapon, and the accused does not have a criminal record.
[30] The defence seeks a reduction in sentence in the form of an absolute discharge or alternatively, a suspended sentence. The defence asks the court to consider the court’s jurisdiction to reduce sentence following a jury conviction and the jurisdiction of the court to impose a discharge or suspended sentence in relation to a conviction for possession of cocaine for the purpose of trafficking.
[31] The defence submits relying on Nasogaluak that the court has jurisdiction to consider Charter violations on sentencing and to reduce sentence following a jury verdict. And that based on the nature and pattern of the violations, the court has the jurisdiction to reduce a sentence below a statutory mandated minimum.
[32] The defence posits that the evidence put before the jury was obtained by egregious violations of Mr. Zavala-Martinez’s rights under sections 8 and 9 of the Charter. Defence counsel submits that the disclosure reveals that the grounds on which Mr. Zavala-Martinez was detained and arrested were exaggerated and fabricated and disclose no reasonable suspicion that would justify detention. The defence’s application for a reduction in sentence is also based on their position that the Crown failed to disclose the investigative file to Mr. Zavala-Martinez’s previous counsel in violation of his rights under s. 7 of the Charter to full answer and defence which issue I have already decided.
[33] Defence counsel made submissions based on the source documents underlying the refused and executed search warrants which he argued establishes a prima facie case for breach of s. 9 and s. 8.
[34] For instance, defence counsel alleges that: there are adverse facts presented in the ITO that have no bearing on Mr. Zavala-Martinez; that on the refused ITOs, the affiant fabricated evidence to add to the grounds for the warrant; the ITO did not disclose discrepancies between the description of the target given by the informant and the description in the ITO; the affiant contradicted what she swore to in the affidavit about a woman seen leaving the bar during the police surveillance operation; and the affiant made up facts to support that a drug transaction involving Mr. Zavala-Martinez took place.
[35] Citing Nasogaluak, the defence argued the violations involving improper police conduct in the defence’s view are connected to the circumstances of the offence of possession of cocaine for the purpose of trafficking and the offender whose Charter rights were violated by police misconduct.
[36] The defence argues that the fabrications, omissions and misleading information are fatal to support the validity of the search warrant. It is the defence’s view that there was no reasonable suspicion to detain Mr. Zavala-Martinez and for that no reasonable grounds to arrest and search him.
[37] The defence relies on Nasogaluak’s recognition of the court’s broad discretion under sections 718 to 718.2 of the Code to fashion a fit sentence if the facts alleged constitute a Charter breach that is related to the principles of sentencing. It is the facts of the police’s alleged violations of Mr. Zavala-Martinez’s sections 7, 8 and 9 Charter rights that the defence asks this court to take into account in tailoring a fit sentence.
[38] The defence recommends a procedural route by which the court can take into account the facts related to the alleged Charter violations. The proposed avenue to be taken to pursue a reduction in sentence is through being allowed to cross-examine the affiant on the ITO that underlies the search of the bar.
[39] The defence responded to the Crown’s position, discussed below, that the defence is simply attempting to bring a Garofoli-like application ̶ an application that ought to have been brought before trial by Mr. Rovan, former counsel for the defence.
[40] The defence points out that a Garofoli application by its nature is an admissibility hearing. In contrast the defence asserts that what it seeks is not a decision on admissibility. But rather seeks to garner evidence from source documents from the investigation to support the allegation of police misconduct. This, the defence asserts, can be accomplished through cross-examining the affiant on the ITOs in relation to the investigation and search of the bar.
[41] The defence takes the position that calling evidence on the violation will allow the court to have available what is required by s. 718.2(a) of the Code to assess the mitigating circumstances relating to the offence or the offender.
The Crown’s Position
[42] Citing Nasogaluak, the Crown submits that the circumstances of the breach do not align with the circumstances of the offence or the offender as required by s. 718.2 of the Code. From the Crown’s perspective the defence is actually launching an indirect attack on the jury’s verdict. The defence cannot be allowed to succeed in this application because Mr. Zavala-Martinez’s trial lawyer chose not to challenge the admissibility of the cocaine.
[43] The Crown’s view is that the sentencing court does not have unlimited discretion to consider the reduction of sentence. Most often, the Crown points out, reduction has been imposed in situations like Nasogaluak where the impact of the state conduct was violence that had a profound impact on the offender. This was not the case with Mr. Zavala-Martinez.
[44] In response to the defence’s position that they are not requesting a hearing into admissibility, the Crown responds that whether Mr. Zavala-Martinez was lawfully arrested, detained and searched turns on the admissibility of the evidence at trial not on a decision on sentencing.
[45] From that argument the Crown submits that Mr. Rovan did not challenge admissibility. It is the Crown’s position that new counsel should not be allowed to come to sentencing and request a reduction of sentence based on violations that were required to be determined by a pre-trial admissibility hearing. The Crown takes the position that the court on sentencing lacks the jurisdiction to decide Charter violations that should have been advanced to determine the admissibility at trial.
[46] The task of the court at this juncture in the criminal process, according to the Crown, is to apply the principles of sentencing considering the circumstances of the offence and the offender. Mr. Zavala-Martinez’s remedy, in the Crown’s view, is an appeal based on ineffective assistance of counsel at trial.
ANALYSIS
[47] It is clear from case authority that in certain circumstances, following a plea without a trial, or following a trial with or without a jury, a sentencing court has the jurisdiction to consider a reduction in sentence where there is state misconduct that impacts the accused. Evidence relevant to the alleged state misconduct can be considered in determining the appropriateness of a reduction in sentence. In certain exceptional circumstances the sentencing court can impose a sentence below the statutory limits.
[48] I draw the following principles from R. v. Nasogaluak and other cases that have emerged in relation to when a reduction in sentence is appropriate where allegations of Charter breaches by the state are raised at sentencing:
- that there need not be evidence on sentencing that proves a Charter breach;
- that state misconduct does not have to rise to the level of a Charter violation;
- that violence or aggressive state conduct is not necessary to grant sentence reduction;
- that at a sentencing hearing evidence may be adduced about a violation where there is no evidence available from a trial or a s. 24(1) hearing;
- there need not have been a s. 24(2) exclusion hearing before evidence of state violations affecting an offender’s Charter rights can be considered in reduction of sentence;
- that the defence need not invoke s. 24(1) of the Charter in seeking sentence reduction;
- sentence reduction may not be imposed where the Charter violation is not sufficiently serious.
[49] I conclude that the defence ought to be afforded the opportunity to call evidence on the Charter violations alleged against the police. There is authority to allow this.
[50] I considered the Crown’s submission that the defence is simply attempting to bring a hearing after the fact as a way to bypass the jury’s verdict or to move to do through the back door on sentencing what the defence did not do through the front door at trial. On the face of things it may appear that by seeking an absolute discharge or, alternatively, a suspended sentence, the defence is trying to in effect indirectly vacate the conviction or interfere with the jury’s decision.
[51] It is the Crown’s view that the nature of the hearing the defence asks the court to convene is a Garofoli admissibility hearing the purpose of which is to review the evidence relevant to sections 8 and 9 Charter violations and the admissibility of the drugs. In the Crown’s view, that ship has sailed. That is, previous counsel had the opportunity to challenge the validity of the search warrant and, on behalf of Mr. Zavala-Martinez, decided not to do so which naturally put the evidence of the drugs before the jury for consideration on its verdict.
[52] However, I considered the defence’s primary purpose for cross-examining the officer. I find it is evident that the defence’s purpose is to adduce evidence on alleged violations that may be considered as a relevant mitigating factor in determining a fit sentence, a sentence that in the defence’s view would align with the seriousness of the violations by the police. Looked at in retrospect, if a s. 24(2) hearing had been held, it is possible that police violations of sections 8 and 9 may have been found to be sufficiently serious as to result in the exclusion of the drugs. It may well be that the warrant might have been found invalid.
[53] But that possibility having been lost does not mean in my opinion that the defence should be precluded from cross-examining the officer in an effort to disclose any possible violations for the court’s consideration on sentencing. Other courts have considered evidence of Charter violations on sentencing where a s. 24(2) hearing was not held.
[54] I considered the source documents generated in relation to the investigation and search. I find that the documentary evidence the defence put before the court establishes, on a prima facie basis only, violations by the police particularly involving the officer who was the affiant on the ITOs, Officer Stacey Marks. The defence’s assertions do not appear to be completely baseless. Without hearing from the witness, it would be difficult to determine whether the violations rise to the level of conduct that could attract a reduction in sentence. It would be difficult to know whether or how the violations impact the offences and the offender. This is a determination I am required to make.
[55] I find appropriate the following four areas of cross-examination proposed by the defence, as re-framed by me ̶ to be drawn from the affiant’s notes, the ITO, surveillance notes, the investigative file and other relevant materials:
- on the information about the movements and activities of the woman seen entering and leaving the bar and on whether there is any connection between that woman and the target;
- on the discrepancies between the description in the ITO by the police of the target and the individual described by the informant;
- on the periods of time the police surveilled the target without observing any drug trafficking activity; and
- on the inclusion of adverse information in the ITO, whether that information has any relation to the target and why that information was included.
[56] It is not unprecedented for a sentencing judge to consider adjourning the sentencing hearing to allow viva voce evidence from a police officer alleged to have committed violations. This occurred in R. v. Strong, although ultimately the witness was not called and a transcript of the officer’s testimony from the preliminary hearing was relied on.
[57] A concern reasonably arises in circumstances where state abuse is considered at sentencing and that issue was not raised earlier at the pre-trial or trial stages. Meaghan Thomas makes the apt observation that it is not inconceivable that over time an increased practice of using sentence reduction in response to Charter breaches could result in sentence reduction being a widely used remedy that trial courts turn their attention to as an effective remedy where there may or may not have been a prior Charter notice.
[58] Thomas concludes, “If so, the long-term, large-scale use of Nasogaluak could result in the deterioration of evidence exclusion as the appropriate response to Charter breaches. But for now, in the face of ever-increasing sentences, and the eradication of 2:1 credit, Nasogaluak certainly seems to be a sentencing tool worth serious consideration”: [Meaghan Thomas, “Punch out Early: Sentence as a Remedy Post-Nasogaluak”, For the Defence, Vol. 34, No. 1, 34-1-F2, March 28, 2013].
DISPOSITION
[59] I find there is no breach of Charter s. 7 for non-disclosure.
[60] I will allow the defence to call the evidence of the police witness to testify on the investigation and search of drug trafficking at the bar. When considering sentence, having heard this evidence, I will decide whether there were Charter violations or other state misconduct. If there is a finding of such conduct, I will inquire into whether the misconduct rises to such a level as to attract a reduction in sentence.
[61] And finally, if there is a finding that a reduction of sentence is appropriate, whether in keeping with Nasogaluak principles, a reduction below the statutory limits, such as sought by the defence, is a fit sentence in all the circumstances.
B.A. ALLEN J. Released: May 6, 2019