Court of Appeal for Ontario

Citation: R. v. Kift, 2016 ONCA 374 Date: 2016-05-17 Docket: C59747

Before: Laskin, Gillese and Roberts JJ.A.

Between: Her Majesty the Queen (Respondent) and David Allen Kift (Appellant)

Counsel: Michael A. Johnston, for the appellant Scott Latimer, for the respondent

Heard: May 16, 2016

On appeal from the convictions entered on July 22, 2014 and the sentence imposed on November 19, 2014 by Justice E. Deluzio of the Ontario Court of Justice.

Endorsement

[1] The appellant appeals his convictions and seeks leave to appeal his sentence in relation to numerous gun-related offences. These offences arise from the seizure by the police, pursuant to a valid search warrant, of an enormous cache of firearms, explosives and ammunition, including a small cannon, which the appellant stored in his cabin.

[2] The appellant’s main argument is that the trial judge erred by failing to stay the charges against him, notwithstanding that she found that his Charter rights were breached by police misconduct. Specifically, the trial judge found that the appellant’s 15-day detention without a bail hearing breached his ss. 7 and 9 Charter rights, and that the destruction by the police of the non-military explosives that they seized from the appellant breached his s. 8 Charter rights.

[3] For the purposes of this Endorsement, we assume, without deciding the issue, that the 15-day detention was an unlawful detention contrary to the appellant’s s. 9 Charter rights. It is not necessary for us to decide the issue raised by the Crown that the appellant was not unlawfully detained because he was unconditionally released under s. 503(1)(d) of the Criminal Code. The Crown did argue in the alternative that the s. 24(1) Charter remedy ordered by the trial judge was reasonable and that she did not err in declining to stay the proceedings.

[4] We would not give effect to the appellant’s submissions. We see no error in the trial judge’s thorough and careful analysis. The trial judge correctly stated and applied the test for a stay that was articulated by the Supreme Court of Canada in R. v. Babos, 2014 SCC 16, as follows:

1. There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome;

2. There must be no alternative remedy capable of redressing the prejudice; and

3. Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits. (para. 32)

[5] The trial judge considered the prejudice to the appellant’s fair trial rights and to the integrity of the administration of justice, and the adequacy of remedies other than a stay. She determined that any prejudice caused by the police misconduct that she identified could be adequately remedied by the exclusion of the evidence obtained from the appellant during his detention and by the remission of his sentence. We agree with her meticulous analysis.

[6] The appellant argues that the proper application of the Babos test required the trial judge to carry out the third prong of the test and balance the appellant’s interests in favour of granting a stay against the interest that society has in having a trial on the merits.

[7] Respectfully, we do not agree with the appellant’s interpretation of the Babos decision. It is clear from the passage cited above that the third step of the stay test is not mandatory where the court determines in step two of the test that there is a remedy sufficient to redress the prejudice occasioned to an accused’s fair trial rights or to the integrity of the justice system by the police misconduct in issue. As the Court also stated in Babos, it is only “if no remedy would suffice, the court would have to engage in the balancing process and determine whether the integrity of the justice system would be better served by a stay of proceedings or a full trial on the merits” (Babos, at para. 47) (emphasis added).

[8] In the present case, the trial judge determined on the second step of the Babos stay test that the remedies of exclusion of evidence and sentence remission were adequate to address the prejudice caused by the police misconduct. As a result, she was not obliged to continue her analysis by undertaking the balancing required in the third step. Nevertheless, the trial judge also considered the seriousness of the unlawful detention and charges, and the societal interest in having the trial of the charges against the appellant heard on the merits. The trial judge concluded that the present case was not one of “the clearest of cases” where a stay of proceedings was warranted (Babos, at para. 31). We agree with her conclusion.

[9] The appellant argues further that the trial judge erred in not finding that the police failed “as soon as is practicable” to make a report to a justice under s. 489.1 of the Criminal Code concerning the items seized from the appellant, thereby breaching his s. 8 Charter rights.

[10] We would not give effect to this argument. The trial judge correctly identified the issue to be decided as whether the police filed the report to a justice without unreasonable delay. The determination of what amounts to “as soon as is practicable” for the purpose of ascertaining whether there has been unreasonable delay in reporting under s. 489.1 is a fact-specific exercise. On the evidence before her, it was open to the trial judge to conclude that the delay in reporting in the present case was not unreasonable. We see no basis to interfere.

[11] With respect to sentence, we grant leave to appeal but dismiss the appellant’s appeal from his sentence.

[12] The appellant submits that the sentencing judge erred in failing to treat as a mitigating factor the fact that, as a former RCMP officer, the appellant would be subject to harsher treatment while in prison.

[13] We would not give effect to this submission. The sentencing judge clearly averted to the negative treatment that the appellant would receive in prison because of his status as a former RCMP officer. She carefully explained that she was not prepared to treat this as a mitigating factor because of the countervailing considerations of the appellant’s deliberate defiance of court orders and parole conditions. She concluded that the appellant “has remained undeterred and ungovernable, even after receiving a five year sentence as a former police officer who was subject to all of the protective custody restrictions that create a harsher penal environment” (para. 55). She was entitled to come to these conclusions.

[14] The appellant’s sentence was, in any event, within the appropriate range for the very serious offences of which he was convicted. The few mitigating factors in this case were substantially outweighed by the aggravating factors that would have justified a higher sentence. In addition to the number and variety of weapons and ammunition dangerously stored and hidden in his cabin, the appellant was in breach of the terms of his parole and the s. 109 prohibition order made at the time of his related previous convictions for gun trafficking offences, which warranted a consecutive sentence.

[15] For these reasons, the appeals from convictions and sentence are dismissed.

“John Laskin J.A.”

“E.E. Gillese J.A.”

“L.B. Roberts J.A.”