Court File and Parties

Date: July 13, 2021 Information No.: 20-588

Ontario Court of Justice

Between: Her Majesty The Queen — And — Hussein Khalfan

Before: Justice R. Marion

Counsel: Armando D’Alessandro, for the Federal Crown Brian Dube, for the Accused, H. Khalfan

Marion J.:

Ruling on a Supplementary Application

To exclude Evidence pursuant to s. 24 (2) of the Charter of Rights and Freedoms

[1] On March 24, 2021, I dismissed the Accused’s Application to exclude physical evidence obtained despite finding infringement of the Accused’s Charter protected rights under ss. 8, 10(a) and 10(b). (R. v. Khalfan, 2021 ONCJ 181)

[2] Following my ruling, the Accused brought a Supplementary Application seeking to exclude the expert opinion of P.C. Holly Gray, which is largely based on the physical evidence which I previously refused to exclude.

[3] The Applicant concedes that the expert opinion could have been included in his original Application to exclude evidence. Defence Counsel acknowledges that it was an afterthought which arose after my initial ruling. Consideration of excluding an expert opinion, it is argued, differs from the exclusion of physical evidence as the former is less reliable evidence and its exclusion does not “gut” the Crown’s case. The Applicant concedes being in possession of cocaine but not for the purpose of trafficking. The expert opinion addresses this remaining issue.

[4] The Crown opposes the Application and submits that the matter is res judicata in view of my prior ruling. Further, it advances that since the issue could have been raised in the original Application, it is improper to consider it at this stage of the proceeding. It is unnecessary to deal with these submissions, except to comment that Courts have been loathe to deny relief to an Accused, whose Charter protected rights have been breached, due to procedural flaws.

[5] There is some merit to the Crown’s submission that the Application should be considered after I have determined the admissibility of the expert opinion.

[6] Since the Applicant is arguing that the opinion evidence is less reliable, it seems reasonable that I should defer ruling on the Supplementary Application until I have determined the necessity and reliability of the opinion evidence. Counsel have agreed to a blended hearing of the voir dire on the Supplementary Application and the balance of the trial.

[7] Having heard and reviewed the submissions of counsel, I am of the opinion that the Supplementary Application should be dismissed prior to continuation of the trial for the reasons which follow.

[8] Section 24 of the Charter of Rights and Freedoms states:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[9] The Applicant, in written argument at paragraph 10 of a Supplementary Factum, argues as follows:

10. It is respectfully submitted that the initial s. 24(2) analysis that resulted in the physical evidence (crack cocaine together with a quantity of currency) being admissible at trial is not an all or nothing proposition that ends the inquiry. While the three separate and distinct Charter breaches resulting in its seizure were not sufficient to exclude that physical evidence, it remains tainted to such a degree that s. 24(2) continues to be engaged in relation to “the conduct of the police throughout the investigation”. The Charter breaches resulted in “a course of conduct” or “chain of events” that led not only to the discovery of the tattoos, the identification of the applicant, his arrest for fail to comply, the discovery of crack cocaine and currency but ultimately and directly to the police expert, Constable Holly Gray, having knowledge of and then relying on the circumstances surrounding the tainted evidence to obtain an opinion that the crack cocaine was possessed for the purpose of trafficking. In her “Expert Witness Report”, Constable Gray states that “as requested by the Federal Crown” she “reviewed the case synopsis, summary of evidence exhibit reports and photographs of each exhibit” (para. 2) and that the “arrest resulted in the seizure of 21.4 grams of crack cocaine and $675 in Canadian Currency” (para. 1). But for the discovery and seizure of the physical evidence by police, it would not have been possible to obtain the impugned expert opinion. The tainting effect is not exhausted by the s. 24(2) analysis of police conduct that concludes with the admission of physical evidence but may continue to afflict subsequent investigative steps taken by police that are central or integral to drug cases, such as generating an opinion on whether illicit substances were possessed for the purpose of trafficking. The “purposive and generous approach to this nexus requirement” results in a connection between the impugned evidence and the conduct of the police that resulted in the seizure of the physical evidence that is neither too remote or tenuous but instead direct, causal and even contextual in nature.

[10] It is further submitted that authority for the exclusion of opinion evidence that resulted from a Charter breach is found in the decision of R. v. Williams, 2006 BCSC 1200.

[11] In Williams, the Crown requested that the police send an exhibit for analysis as to possible blood stains one day prior to commencement of a long jury trial. The results were obtained several weeks later. Justice Dorgan concluded as follows:

“14. I note that this evidence did not simply appear. For example, this is not a murder weapon that has just been found three‑quarters of the way through a trial. The swabs from which this opinion evidence is garnered have been with the Crown since May 2004.

16. I am told that the defence made certain decisions based on the Crown's evidence, direct and circumstantial, which goes to the issue of the presence of blood in the home of Mr. Williams, and that issue is of some import to both the theory of the defence and the theory of the Crown. I accept Mr. Firestone's submissions that certain decisions were made by the defence in respect of this issue based on the Crown's evidence as it stood.

17. I am satisfied the evidence at issue is relevant. The timing of the delivery of the report standing alone is not determinative of the issue of admissibility in the context of the Crown's obligation to disclose and the defence submission of a Charter breach. It is not the timing of this disclosure that is determinative in these circumstances; it is the fact that the Crown wishes to call evidence it has marshalled after the defence has committed to a certain course of action, a course of action reflected in the cross‑examination of Dr. Charlesworth, the pathologist, Corporal Walman, the investigating officer/ident officer, and, to some extent, Constable McKinnon, the exhibit officer, and after the defence has committed to its theory of the case.

18. Further, I find that the defence was entitled to know that the request for a further analysis was made and the defence was entitled to know of the request prior to completion or undertaking the cross-examination of Corporal Walman, in particular. Such disclosure could reasonably impact the approach taken to cross‑examination. Mr. Firestone has said that it would, and I accept that submission.

19. As to remedy in light of all of the circumstances, an adjournment of the trial for further preparation or even for a responding report ‑‑ and given the intemperate language in the request for further analysis, the request for a responding report is reasonable -- is simply not practical. This jury is committed to a 35-day trial. If for example, the adjournment was for 60 days to allow further testing there is simply no way of knowing whether or not we would still have these 12 jurors when the trial resumes. Further, an adjournment does not respond to the fact that the key Crown witnesses have now been cross‑examined. To recall witnesses for further cross‑examination is too much of a compromise since the defence has committed itself to a certain approach based on the evidence then disclosed and then available. In any event, as I recall, Corporal Walman is now out of the country for about six months. So it is completely impractical to rely on his availability for further cross-examination.

20. Finally, I am told the defence is not bringing and will not bring an application for mistrial if this evidence is admitted. This has been a long trial, and Mr. Williams has been in custody for some length of time.

21. In conclusion, I am satisfied the defence has established that the late admission of this evidence in all of these circumstances would adversely affect his ability to make full answer and defence. The perception and reality of a fair trial is a cornerstone of justice being done and seen to be done in our country, and to admit this evidence in the face of such a serious violation of the accused's rights would, in my view, most certainly bring the administration of justice into disrepute.

22. Accordingly, on those findings and on an analysis of remedy under s. 24, and particularly 24(2), I find this evidence is not admissible.”

[12] With respect I do not believe that s. 24(2) was the appropriate remedy in Williams. Admitting into evidence the impugned blood analysis would have violated the accused’s Charter protected rights. In such a case, evidence can be excluded under a trial judge’s common law duty to exclude evidence whose admission would render a trial unfair (R. v. Harris, [1995] 1 S.C.R. 562, 101 C.C.C. (3d) 193) or as a remedy under s. 24 (1) of the Charter (R. v. White, [1999] 2 S.C.R. 417, 135 C.C.C. (3d) 257).

[13] The decision in Williams does not support the exclusion of opinion evidence under s. 24(2). It does confirm a trial judge’s responsibility to exclude evidence which would render a trial unfair. It is the admission of such evidence which would have constituted a Charter breach thereby obliging the trial judge to exclude it.

[14] In the case at bar, I found that the physical evidence was obtained in violation of the Accused’s Charter rights. The expert opinion does not constitute physical, bodily or derivative evidence. Opinion evidence obtained as to the import of evidence at trial does not constitute “evidence obtained in a manner” that infringed on any Charter right of the Accused as described in s. 24(2) of the Charter. The Defence had timely notice of the opinion evidence and if it is admitted as evidence upon continuation of the trial, it would not adversely affect the Accused from making full answer and defence.

[15] For the abovementioned reasons, the Supplementary Application is dismissed.

Released: July 13, 2021 (Original Signed by Justice R. Marion)

Justice Ronald Marion