CITATION: R. v. Johnston, 2015 ONSC 3486

COURT FILE NO.: 11/90000/8140000

DATE: 20150529

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

MARK ANDREW JOHNSTON

Applicant

M. Cullen and C. Zary, for the Crown

C. Murphy, amicus curiae

Mark A. Johnston, representing himself

HEARD: November 17 and 19, 2014

M. Forestell J.

RULINGS ON: VOLUNTARINESS AND APPLICATIONS

UNDER

SECTIONS 7, 8 & 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

I Overview of the Charges and the Applications

[1] The Applicant, Mark Johnston, is charged with two counts of fraud over $5,000. The allegations underlying the charges are that he was part of a scheme in which fraudulent GST and income tax returns were submitted in the names of inmates or former inmates of a correctional facility. The offences are alleged to have been committed between March 1, 2007 and April 30, 2009.

[2] In September 2009, the Applicant was an inmate at Maplehurst Correctional Facility (“Maplehurst”). On September 14, 2009, Corporal Therrien of the RCMP executed a search warrant at Maplehurst and seized documents which the Crown intends to introduce as evidence in the trial. These documents were seized from the administrative files at Maplehurst and from the Applicant’s cell.

[3] The Applicant brought an application to exclude all of the items seized from Maplehurst pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”). He submitted that the search was unreasonable and a breach of his s. 8 rights for the following reasons:

1. The information to obtain the search warrant was deficient and the entire search was therefore warrantless and prima facie unreasonable; and,

2. The manner of execution of the warrant was unreasonable, in that:

i. the search of the Applicant’s cell occurred outside the time specified in the warrant;

ii. the search warrant was executed by a correctional officer;

iii. the property seized included items not specified in the warrant; and,

iv. the correctional officer directed the Applicant to pack his belongings.[1]

[4] The hearing of the application proceeded over two days. On September 18, 2014, I indicated that the application was dismissed and that my reasons would follow. On October 3, 2014 I issued reasons for that ruling. On November 17, 2014 the trial continued with a voir dire into the voluntariness of the ‘statement by conduct’ of Mr. Johnston that the Crown sought to introduce. It was the position of the Crown that when Mr. Johnston packed his belongings in response to the request by the correctional officer, Mr. Johnston was admitting ownership of the items.

[5] Correctional Officer Darren Jones (“C.O. Jones”) testified on the section 8 application and again on the voluntariness voir dire. When C.O. Jones testified on the original s. 8 application, he testified that he recalled going to the cell of Mr. Johnston the day that the search warrant was executed. On that day he told Mr. Johnston that he was being moved to segregation and asked Mr. Johnston to pack his belongings. C.O. Jones testified that Mr. Johnston packed his belongings. C.O. Jones took the belongings. C.O. Jones testified that he then provided the bag of belongings to Corporal Therrien who had arrived at the institution to execute the search warrant.

[6] On the voluntariness voir dire, C.O. Jones testified that he had no recollection of what had occurred when he moved Mr. Johnston from his cell to segregation. He agreed that he had previously testified that he had a recollection of the process of moving Mr. Johnston. He agreed that his earlier testimony was not true. He agreed that the log book from the institution showed that Mr. Johnston was moved from his cell to segregation the day before the execution of the search warrant. C.O. Jones testified that he would normally ask an inmate to pack his own belongings when he was moving an inmate to segregation. He testified that he would normally not threaten an inmate or make promises to an inmate. He testified that he would use force to ensure compliance with directions given to the inmate if necessary.

[7] Based on the testimony of C.O. Jones I concluded that the statement by conduct alleged by the Crown was not admissible. I provided my decision on voluntariness on November 19, 2014. I also indicated that I would provide written reasons. These are those reasons.

[8] Following my decision on voluntariness, Mr. Johnston, with the assistance of amicus, asked to reopen the s. 8 application. He submitted that I should revisit the application and exclude the evidence obtained pursuant to the search. Mr. Johnston, with the assistance of amicus, also brought an application pursuant to s. 7 of the Charter to stay the proceedings as an abuse of process.

[9] I reconsidered my ruling on the s. 8 application in light of the change in the evidence of C.O. Jones. I concluded that the result did not change and that the evidence was admissible. I considered the application for a stay of proceedings and dismissed the application. I indicated that written reasons would follow. These are those reasons.

II The Issues

[10] The issues in this application may be framed as follows:

1. Was the statement by conduct of the accused in packing his belongings in response to the request by C.O. Jones voluntary?

2. Was the search of the Applicant’s cell and the seizure of his property conducted in an unreasonable manner?

3. If the search or seizure was conducted in an unreasonable manner should the evidence be excluded under s. 24(2)?

4. Would it be an abuse of process to allow the trial of the Applicant to proceed in light of the conduct of C.O. Jones in giving contradictory testimony and in light of the Crown’s continued reliance on the evidence of C.O. Jones?

III The Evidence on the Application

[11] In deciding the above issues I relied on the evidence from the original application.

[12] The following documents were filed on the original application:

1. The search warrant issued on September 8, 2009;

2. The information of Corporal Therrien to obtain the search warrant;

3. The transcript of the intake of the warrant by the Justice of the Peace;

4. The transcript of the testimony of C.O. Jones at the preliminary inquiry;

5. A copy of the September 15, 2009, internal report of C.O. Jones regarding the seizure of personal property from the Applicant’s cell;

6. Copies of the documents seized from the offices of Maplehurst;

7. Copies of documents seized from the Applicant’s cell and retained by the police;

8. A copy of the Return to the Justice;

9. The expert report comparing the handwriting in the seized documents to the alleged fraudulent returns;

10. A transcript of the evidence of Corporal Therrien at the preliminary inquiry; and

11. Two e-mail chains between Corporal Therrien and a representative of Correctional Services regarding the execution of the warrant.

[13] Corporal Therrien and C.O. Jones testified on the original application. C.O. Jones testified again on the voluntariness voir dire.

[14] The evidence from the original application is summarized in my October 3, 2014 ruling. I will not repeat that summary of the evidence in full in these reasons.

[15] With respect to the evidence of C. O. Jones on the original application, I indicated the following in my ruling released October 3, 2014 (2014 ONSC 5789):

¶14 C.O. Jones was the Security Manager at Maplehurst in September 2009. Upon being advised of the pending execution of the warrant, C.O. Jones gathered the documents that were in the various administrative files at Maplehurst. He gathered the documents over a period of days. These documents were not given to the police until Corporal Therrien arrived with the search warrant at 10:30 a.m. on September 14, 2009.

¶15 In addition to the documents seized from the administrative files of Maplehurst, C.O. Jones seized the Applicant’s personal property from his cell. Although the evidence of C.O. Jones was contradictory and inconsistent regarding the timing of the seizure, it is an admitted fact that C.O. Jones obtained the personal property from the Applicant’s cell on September 13, 2009. On that date, C.O. Jones attended at the cell of the Applicant. At the time, the Applicant was sharing a cell with another inmate. C.O. Jones directed the Applicant to pack his personal belongings. The applicant packed his belongings in a bag. C.O. Jones then walked the Applicant to a segregation cell, where C.O. Jones took possession of the bag containing the Applicant’s personal property. The next day, on September 14, 2009, C.O. Jones handed the bag of personal property over to Corporal Therrien when he arrived with the search warrant.”

¶18 It is agreed that C.O. Jones gathered the documents that he believed were covered by the warrant in advance of the execution of the warrant. This included gathering the personal property of the Applicant from his cell. C.O. Jones gave contradictory evidence about his understanding of the nature of the property that could properly be seized under the terms of the warrant. Initially in his testimony he agreed that he read the warrant as authorizing the search for and seizure of handwriting samples. Later in his evidence he testified that he understood that the warrant authorized him to search for and seize all personal property of the Applicant. There is no dispute that the warrant did not authorize the seizure of all personal property of the Applicant.

¶19 There is a factual dispute on the application as to the legal authority that C.O. Jones believed provided him with the authority to search for and seize the property.

¶20 C.O. Jones testified that he was preparing for the execution of the search warrant when he seized the Applicant’s belongings. He also testified that he was of the view that he was entitled to search any inmate at any time for any reason. He interpreted the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22 (the “Act”), and regulations to permit him to search at any time. He further testified that while searches were regularly authorized by the superintendent under the Act and regulations, there were additional searches that were conducted outside that authorization. The additional searches were, in the view of C.O. Jones, permitted by the legislation and regulations and required no documentation.

¶21 The relevant legislation and regulations are before me on this application and will be discussed in more detail in my analysis later in these reasons. The legislation and regulations permit a search to be authorized by the superintendent at any time. The regulations permit the superintendent to delegate the power to authorize a search. The regulations permit a correctional officer to conduct a search without the prior authorization of the superintendent if s/he has reasonable cause to believe that the inmate would destroy or dispose of contraband during the delay necessary to obtain the authorization of the superintendent. A written record is required of any search pursuant to s. 25 of regulation 778. These aspects of the legislation and regulations were put to C.O. Jones.

¶22 C.O. Jones agreed that he did not have reasonable cause to believe that the Applicant would dispose of or destroy contraband in the time that it would take to obtain the authorization of the superintendent. He was not searching for contraband. C.O. Jones did not prepare a written record of the search. He testified that he did not believe that a written record was required because he viewed his actions not as a search but as a seizure.

¶23 In answer to a question by amicus, C.O. Jones agreed that he had seized property from the Applicant and that the seizure was not specifically authorized by the superintendent. However, he said: “I am his delegate…I have the right to search and prepare things. No different than preparing the paperwork.” The reference to delegation was made in the context of being the superintendent’s delegate for the purposes of cooperating in the execution of the search warrant.

¶24 I find that C.O. Jones directed the Applicant to pack his property and moved the Applicant to segregation in order to facilitate the orderly execution of the search warrant that C.O. Jones expected to receive the following day. I find that C.O. Jones did not inspect or examine the contents of the bag. He merely seized the bags and gave them to Corporal Therrien the following day.

¶28 I find that C.O. Jones believed that he had the authority under the legislation governing the institution to compile in advance the property referred to in the search warrant in order that the warrant could be executed in a manner that did not disrupt the security of the institution. He was not acting under the authority of the warrant, but under the authority that he believed had been delegated to him by the superintendent of the institution to ensure that Maplehurst complied with the terms of the warrant and did so in a safe and orderly manner.

[16] On the voluntariness voir dire, C.O. Jones testified that he did not recall asking Mr. Johnston to pack his belongings but testified that this was his usual procedure. He also testified that he believed that he was acting as a peace officer assisting in the execution of the warrant when he seized the personal belongings of Mr. Johnston. C.O. Jones testified that he did not recall what, if anything, he did with Mr. Johnston’s belongings when he moved Mr. Johnston to segregation. He could only say that the following day when Corporal Therrien arrived with the warrant he retrieved the belongings from a locker near Mr. Johnston’s segregation cell and gave the bag of belongings to Corporal Therrien. The locker was in a hallway. C.O. Jones originally testified that he was aware of the terms of the search warrant when he moved Mr. Johnston. In his subsequent testimony he said that he could not recall whether he was aware of the terms of the warrant.

IV Analysis

(i) Voluntariness

[17] The onus is on the Crown to prove voluntariness beyond a reasonable doubt. C.O. Jones was a person in authority. Mr. Johnston was subject to disciplinary consequences if he failed to comply with a direction from C.O. Jones. C.O. Jones was unable to provide any details of his interaction with Mr. Johnston. In all of the circumstances, the Crown has failed to prove that Mr. Johnston’s actions in packing his belongings were voluntary. The conduct is not admissible.

(ii) Section 8 Revisited

[18] As I indicated in my earlier ruling on s. 8:

¶41 The unchallenged evidence of C.O. Jones was that inmates are told that they and their property will be subject to search, that their mail will be monitored and that their telephone calls may be monitored. The legislation permits these actions by the jail.

¶42 The legislation and regulations governing the correctional facility permit searches and seizures of property at the discretion of the superintendent of the facility. The legislation provides that all property of an inmate is surrendered upon admission to the jail. The regulations make reference to property that the inmate ‘is not permitted to retain’ being deposited with the facility. The necessary inference from this is that inmates are permitted to retain certain property but only at the discretion of the superintendent.

¶43 In R. v. Blais,[2] our Court of Appeal addressed the reasonable expectation of privacy in a case involving the personal property of an inmate that was deposited with the jail upon the admission of the inmate. The Court held at para. 13: “[T]he appellant's expectation of privacy was that the state would preserve the goods and return them to him upon his release. He could not reasonably expect that agents of the state would not inspect those goods, although he could expect that the police would obtain a search warrant before actually taking them out of the possession of the gaoler who was under a duty to safeguard them.”

¶44 …[T]he reasonable expectation of privacy of the Applicant in his property retained in his cell was no different than the expectation of privacy in property deposited with the jail. The Applicant in this case had a limited privacy interest in the personal papers that he retained in his cell that was comparable to the interest identified in R v. Blais. He had no reasonable expectation that correctional officers could not inspect and read the documents, or take his possessions from him. Correctional authorities have the authority to control the belongings of inmates. However, the Applicant could reasonably expect that the police would obtain a search warrant before actually taking his belongings from the control of the jail.

¶46 The Applicant did have a limited privacy interest in his belongings in his cell. The seizure and search of his belongings engages s. 8 because the state action potentially compromised his territorial and informational privacy interests.

¶47 The Applicant could reasonably expect that the police would not seize his belongings without a search warrant. He had no reasonable expectation that the institution would not search his belongings, inspect them, or cause them to be removed from his immediate possession. He could have reasonably expected that the institution would not give the items over to the police without a warrant.

¶48 Having concluded that the Applicant had a limited reasonable expectation of privacy in the personal property in his cell, the next step in the analysis of this application is the determination of the reasonableness of the search and seizure of that property.

¶49 To be reasonable under s. 8 of the Charter, a search must be authorized by law, and the search must be conducted in a reasonable manner.[3]

¶50 As explained by Lamer C.J. in R. v. Caslake[4]:

In order to be reasonable, searches and seizures must be authorized by law. The reason for this requirement is clear: under both the Charter and the common law, agents of the state can only enter onto or confiscate someone's property when the law specifically permits them to do so. Otherwise, they are constrained by the same rules regarding trespass and theft as everyone else. There are three ways in which a search can fail to meet this requirement. First, the state authority conducting the search must be able to point to a specific statute or common law rule that authorizes the search. If they cannot do so, the search cannot be said to be authorized by law. Second, the search must be carried out in accordance with the procedural and substantive requirements the law provides. For example, s. 487 of the Criminal Code, R.S.C., 1985, c. C-46, authorizes searches, but only with a warrant issued by a justice on the basis of a sworn information setting out reasonable and probable grounds. A failure to meet one of these requirements will result in a search which has not been authorized by law. Third, and in the same vein, the scope of the search is limited to the area and to those items for which the law has granted the authority to search. To the extent that a search exceeds these limits, it is not authorized by law.

[19] As I also indicated in my earlier ruling, the seizure by C.O. Jones was authorized by the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22 and Regulation 778.

[20] Subsections 20(1.1) and (2) of the Act set out the authority and responsibility of the superintendent:

20. (1.1) The superintendent shall be responsible for the administration of the correctional institution. 2000, c. 40, s. 5 (1); 2002, c. 18, Sched. N, s. 25 (2).

(2) The superintendent shall receive into the institution every person delivered under lawful authority for detention in the institution and is responsible for the custody and supervision of such person until his or her term of imprisonment is completed or until the person is transferred or otherwise discharged in due course of law. 2002, c. 18, Sched. N, s. 25 (3).

[21] Section 3 of the Regulation 778 provides that the superintendent may delegate any power, duty, or function:

3. Any power, duty or function conferred or imposed upon or exercised by a superintendent under the Act or this Regulation may be delegated by the superintendent to any person or persons to act as designated representative of the superintendent for the purpose of the effective administration of the Act and the delegation shall be subject to such limitations, restrictions, conditions and requirements as the superintendent considers necessary for the purpose. R.R.O. 1990, Reg. 778, s. 3.

[22] The regulations regarding inmate property provide, in s. 10, as follows:

10. (1) The inmate shall surrender to the superintendent all property, including money and personal belongings, in the inmate’s physical possession at the time of admission to the institution. O. Reg. 164/10, s. 1.

(2) The non-perishable property that the inmate is not permitted to retain in his or her possession shall be deposited with the superintendent. O. Reg. 132/09, s. 1.

(3) The perishable property that the inmate is not permitted to retain in his or her possession shall be dealt with as the inmate may reasonably direct or else be destroyed by the superintendent. O. Reg. 132/09, s. 1.

[23] Section 23.1 of the Act governs searches, and provides as follows:

23.1 (1) The superintendent of a correctional institution may authorize a search, to be carried out in the prescribed manner, of,

(a) the correctional institution or any part of the correctional institution;

(b) the person of any inmate or other person on the premises of the correctional institution;

(c) the property of any inmate or other person on the premises of the correctional institution;

(2) Any contraband found during a search may be seized and disposed of in the prescribed manner. 2002, c. 18, Sched. N, s. 27.

[24] The regulations also address the power to search. The relevant sections are the following:

22. (1) The superintendent may authorize a search, at any time, of,

(a) the institution or any part of the institution;

(b) the person of an inmate;

(c) the property of an inmate; …

(3) An officer may conduct an immediate search without the authorization of the superintendent where the officer has reasonable cause to believe that the inmate will destroy or dispose of contraband during the delay necessary to obtain the authorization. R.R.O. 1990, Reg. 778, s. 22 (3).

25. (1) The superintendent shall ensure that a written record is made of every inmate search and the record shall include,

(a) the name of the inmate searched;

(b) the reason for the search; and

(c) a description of any property seized or damaged in the search. R.R.O. 1990, Reg. 778, s. 25 (1).

(2) The superintendent shall inform an inmate of any seizure or damage to property belonging to the inmate arising from a search conducted without the knowledge of the inmate. R.R.O. 1990, Reg. 778, s. 25 (2).

26. An inmate who refuses to be searched or resists a search may be placed in segregation until the inmate submits to the search or until there is no longer a need to search the inmate. R.R.O. 1990, Reg. 778, s. 26.

27. (1) The superintendent may seize contraband found during a search described in section 22. R.R.O. 1990, Reg. 778, s. 27 (1).

[25] I found in my earlier ruling that C.O. Jones was acting pursuant to his delegated authority under the Act when he seized the belongings of the Applicant. The legislation authorized the action of seizing the belongings. The superintendent may permit an inmate to retain belongings or he may require them to be deposited with the jail. The discretion of the superintendent to permit the belongings to be seized and retained was exercised for a valid purpose. C.O. Jones knew that the warrant would be executed the next day. Police officers were not permitted to attend on the units. The movement of the belongings in anticipation of the warrant and without examining the contents was reasonable.

[26] Therefore, the seizure by C.O. Jones was authorized by law and was executed in accordance with the authorizing legislation. It was therefore reasonable. The subsequent evidence of C.O. Jones on the voluntariness voir dire that he was assisting in the execution of the search warrant does not change my conclusion on the reasonableness of the manner of execution of the warrant. C.O. Jones believed subjectively that he had the authority to seize the belongings of the applicant. He in fact did have such authority. His inconsistent articulation of the basis for that authority does not change my conclusion on this point.

[27] It was further argued that I could not conclude that the belongings were seized in a reasonable manner because C.O. Jones had no actual memory of how he seized the belongings. He was able to articulate his usual practice. There is no evidence that C.O. Jones varied from his usual practice or that the seizure was conducted in an unreasonable manner. I find that there was no breach of the s. 8 rights of the Applicant as a result of the manner in which the search was conducted.

(iii) If there was a breach of s. 8 should the evidence be excluded under Section 24(2)?

[28] If I am wrong in my conclusion that there was no breach of the s. 8 rights of the Applicant as a result of the manner of the search, I would nevertheless have admitted the evidence.

[29] In R v. Grant,[5] the Supreme Court set out at para. 71 the approach to the exclusion of evidence under s. 24(2):

A court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[30] Having considered the three avenues of inquiry identified in R v. Grant, I conclude that the evidence should not be excluded.

[31] The impact on the Applicant’s Charter-protected rights was minimal. There was an extremely low expectation of privacy in the seized material.

[32] While the documents seized are not critical to the prosecution, they may be characterized as important to the prosecution.

[33] Balancing the relevant factors, I find that the evidence should not be excluded. The Applicant’s rights were minimally impacted and the correctional officer acted in accordance with his legal authority. The administration of justice would not be brought into disrepute by the admission of the documents.

(iv) Section 7 – Abuse of Process

[34] The Applicant has further argued that it would be a breach of the s. 7 rights of the Applicant to allow the prosecution to continue in light of the change in the evidence of C.O. Jones and the admission of C.O. Jones that his testimony on the original application was not true.

[35] The argument of amicus and Mr. Johnston is that the conduct of the prosecution in relying on the testimony of C.O. Jones to prove the charges against Mr. Johnston is an abuse of process. The Crown has indicated that it intends to call C.O. Jones and to rely to some extent on his testimony to prove the case.

[36] The decision to call a witness and rely on the evidence of the witness to prove a charge is an exercise of prosecutorial discretion. The Supreme Court of Canada in R. v. Anderson[6] explained that the exercise of prosecutorial discretion will constitute an abuse of process where the conduct is egregious and seriously compromises trial fairness and/or the integrity of the justice system.

[37] The Supreme Court in R. v. Nixon[7] and R. v. Anderson held that a trial court should not proceed with a review of the exercise of prosecutorial discretion in the absence of a threshold determination that the inquiry is warranted. In this case I find that at this point there is no basis to inquire into the exercise of prosecutorial discretion. The weakness of the evidence of the witness is clear, but it would not render the trial unfair for the witness to be called by the Crown. Mr. Johnston is able to challenge the evidence of the witness and has done so effectively to this point.

[38] The application for a stay of proceedings is therefore dismissed.

V Summary of Conclusions

[39] In summary, I have reached the following conclusions:

1. The alleged conduct of the Applicant in packing his belongings was not proven to be voluntary and is not admissible;

2. The Applicant had a limited privacy interest in his personal belongings in his cell, including his personal writings. The limited reasonable expectation of privacy did not protect the documents from search or inspection, but protected them from seizure by the police and transfer outside the jail without a search warrant.

3. C.O. Jones was not executing the search warrant when he moved the Applicant to a segregation cell and took custody of his belongings. He was acting under the delegated authority of the superintendent, and was performing a function directly related to the orderly administration of the institution. He was entitled to remove the Applicant’s belongings and transfer them to another area of the jail, but was not entitled to transfer them to the police without a valid warrant. The actions of C.O. Jones in directing the Applicant to pack his belongings did not infringe the s. 8 rights of the Applicant. C.O. Jones’s subsequent characterization of his actions as assisting in the execution of the warrant was not correct. His subjective view of the legal authority for his actions does not change the result. He had legal authority to move the Applicant and to take custody of his belongings;

4. In light of the low expectation of privacy, the seriousness of the charges, and the importance of the evidence, the evidence should not be excluded under s.24(2);

5. There is no basis to inquire in to the exercise of prosecutorial discretion in relying on the testimony of C.O. Jones. The application for a stay of proceedings for an abuse of process is dismissed.

M. Forestell J.

Released: May 29, 2015

CITATION: R. v. Johnston, 2015 ONSC 3486

COURT FILE NO.: 11/90000/8140000

DATE: 20150529

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

MARK JOHNSTON

RULINGS ON: VOLUNTARINESS AND APPLICATIONS UNDER

SECTIONS 7, 8 AND 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

M. Forestell J.

Released: May 29, 2015

[1] It was also argued that this aspect of the search engaged the s. 7 rights of the Applicant.

[2] [2004] O.J. No. 40

[3] R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265 at p. 278

[4] 1998 838 (SCC), [1998] 1 S.C.R. 51 at para. 12

[5] 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71

[6] 2014 SCC 41, [2014] 2 S.C.R. 167

[7] 2011 SCC 34, [2011] 2 S.C.R. 566