CITATION: R. v. Hansen, 2016 ONSC 548
COURT FILE NO.: J-14-4855
DATE: 2016-01-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
P. Scrutton and M. Flanagan, for the Crown
- and -
ROBERT HANSEN
G. Lafontaine & B. Cummins, for Robert Hansen
HEARD: November 23-26, 2015
REASONS FOR JUDGMENT
I. INTRODUCTION
[1] Robert Hansen (“Hansen”) is a police officer. In the course of his duties as an officer in 2012, Hansen communicated by text messages with someone he believed to be a new informant (“Source C”). The Crown argues that Hansen obstructed justice by encouraging Source C to plant a firearm; that he provided false information in his sworn Information to Obtain and thereby committed perjury; and that he obstructed justice by placing that false sworn document before a Justice of the Peace in support of an application for a Search Warrant.
[2] This trial proceeded during the week of November 23, 2015. At the conclusion of the Crown’s case, the defence brought a motion for a directed verdict of acquittal on all counts. I dismissed that application, with reasons to follow. These are my reasons on the motion for directed verdict as well as my reasons on the trial proper.
II. FACTS
1. Facts at the Close of the Crown’s Case
[3] In 2012, Hansen was a Detective Constable in the Gangs and Weapons Enforcement Unit of the Hamilton Police Service. His duties included conducting investigations into drug, gang and firearms offences. Investigations by the Gangs and Weapons Enforcement Unit often use confidential informant information.
[4] In May of 2012, Hansen had contact with an individual who is referred to as “Source C”. The Crown’s theory of the case is that Source C offered to set up or “frame” Darren Mork (“Mork”), who also goes by the nickname D or D-Block, and that Hansen encouraged Source C to place a gun at Mork’s residence. Mork was a suspected drug trafficker in the City of Hamilton and known to the Hamilton Police Service.
[5] On May 25, 2012, Hansen swore an Information to Obtain before a Commissioner of Oaths in support of a search warrant for Mork’s residence. Hansen then attended before a Justice of the Peace to have the warrant authorized. The warrant was signed by a Justice of the Peace. Copies of the Information to Obtain and search warrant have been filed as exhibits in these proceedings.
[6] Mork was arrested prior to the execution of the warrant and three baggies of cocaine were found on his person. The bags weighed 0.8g, 4.4g and 6.3 g respectively.
[7] Hansen executed the warrant by conducting a search of Mork’s residence between 4:30 pm and 6:30 pm on May 25, 2012. When the warrant was executed, a baggie containing 0.02 grams of cocaine was found in the laundry of his bedroom. Mork was charged with possession of cocaine for the purpose of trafficking and released on a promise to appear.
[8] As part of his police duties, Hansen was issued a Blackberry smartphone. Hamilton Police obtained a production order for the records relating to that phone, from December 21, 2011 to June 12, 2012. Telus complied with the production order but was unable to say that every single message (that was sent and received during that time period) was captured.
[9] Briefs containing text messages have been filed as an exhibit at trial, and it is admitted that Hansen sent and received these messages. The following charts include portions of the text conversations between Source C and Hansen. The bolded portions are the most relevant to the charges before the court:
May 16, 2012:
Source C:
I’m not near you but my gf is
nd theres someone fucking round with her nd I wont have that
you know him
so I wanna set him up nd keep him the fuck away from my girl
DBlock
Hansen:
Yup. He could use some jail time. Do u have any ideas how to get him?
Source C:
you keep him away from my girl by locking him up if you can do that I’ll set him up for you
I’ll let you guys get him with a thing
Hansen:
That would do it. Bu I hear he is tough and doesn’t hold onto shit himself.
Source C:
you don’t need to worry
Hansen
Ok cool. Better I don’t know the details then – I just interested in the when and where and what it is and that it will be 100%
Source C:
…he messed with my girl nd now he’s gonna suffer for that I’m setting up his house for you he’s making my family suffer so this is karma
nd as a cherry on top itll be the heat that shot up sarans house just for your amusement
Hansen:
K that could work out pretty good. After today; we wouldn’t be avail till maybe wed.. Is that a problem?
I can work out deal for $ like that but eventually I will need her name ..
Source C:
I give you her name you swear to do nothing but protect her
I call her khe
Hansen:
This will get him put away for several years.
I will help u fuck these guys up.
Source C:
I’ll give you a run down of the plan or what you needed kno anyway
Hansen:
Ok. Mostly what I need is word when its good and then when how long after would b safe for u
Source C:
I’ll be letting you kno when its there nd as soon as I tell you ya good to go in
I’ll try nd give you a rough date because one it there you wont have alotta time to waste
Hansen:
K. Wed thurs or fri all good afternoon or evening
Source C:
…I gotta go see khe pops before this all happen
May 23, 2012:
Source C:
I’m tryna keep this girl out of trouble nd this dudes ready to kill johnny nd start up drama this is fuckin ridiculous shit bro I’m startin not to give a fuck about this girl rite now
like here is me settin up nd rattin on these dudes nd shes fuckin round chillin wit kyle of all ppl ya good 1 that gonna keep her out.of trouble nooooo
rite now I dont even feel lik doin this settin these goofs up at this point let em fuckin tare her apart I’m pissd
lik do you need me 2 or are you cool witout me bro ??
Hansen:
They not getting done without u probably
At least not any time soon
Source C:
Fuk…
this important bro?? I don’t want to fuk you ova I still need drug help so if this mean sumthin 2 you I’ll do it but I’m done wit her
Hansen:
It would help tons
Especially that heat
Source C:
I want u guys to take mine 2 I’m out after this
Hansen:
Do u want to do that 1st or after? We could have u hide it somewhere so u wouldn’t have to meet. Or do u need it for D to be setup ?
Source C:
na I’m settin d up wid da piece dat shot up johnny place
Source C: (9:21pm)
wen I’m ready I’ll let u kno where u can find it
Hansen:
Kk. Just give me notice. I don’t want it somewhere kids could find it b4 me
Source C:
na it’ll b secure
Hansen:
Cool. U think any of those guys will b this week? (Thurs or fri)
Source C:
tomorro is thurs bro I gotta journy out 2 khe dads 2 get the heat
Hansen:
Or do u know where he keeps it exactly or u have to ask him for it?
Source C:
I dunno wat house he keep da heat at
haha u cant raid him yet bro I need dat heat 2 set up ya boy D LOL this guy tryna raid some1 ur jks sucha cop
May 24, 2012:
Hansen: (1:05am)
If u think D’s thing too hard to pull off tomorrow; don’t sweat it. We’ll see how it goes ..
Source C: (9:46am)
yo I’m headed there now
I’m gettin the heat off donn he want it gone cause it dirty I tol him no problem
Hansen:
K. What’s the plan
Source C:
I’m goin 2 d later to get a brick he tink to sell it I only need half doe so once I get there I kno theres a full
ima tell him I’ll come back with cash later for the rest like tomoro while I’m there I’m leavin da heat
Hansen:
K just tell me where it is when it done. What time u think it all be set?
Source C:
I’ll be out by 8
Don’t set me up
Hansen:
Of course. I’ll need to wait till ur gone anyway so u can tell me if it went ok
May 25, 2012:
Source C (9:42am):
k bro im leavin 4 khe now nd goin home 2 so sleep ur golden heat in da basement in the couch I bough half brick there half nd some m there nd my cash he leaving early tn bro
nd watch cause if he gonna run he be goin throu Scotty back cuz that’s how he told me 2 go in thru there n hop da fence use da side door
Hansen:
Kk. What the couch look like?
Source C:
oh nd my scale there I meant 2 bring it but not goin bak now
the 3 ppl couch its da big 1 sittin on the wall ull seeit right from the entrance
Cross from da bafroom
Hansen:
Do u kno what kind of heat it is? Loaded?
Source C:
ya a glock bro
a 17
I think my prints r on it bro
Hansen:
As long as its still in there; I’ll take care of all that. Don’t sweat
Source C:
thanks bro
lemme know how it go bro I’m feelin good though no way he found that piece so that should do him in
Hansen:
Ya. I’m going to meet judge to get warrant right now. I was worried he might find it but if u feel good that’s good
Hansen: (4:25pm)
U hear anything from him?
We here now – nothing in his couches
Source C:
bro it was there
Hansen:
U know if we don’t find anything we can’t lock him up
Do u still have ur own to turnover b4 u get out? If I could get that at least it would look like we got a gun related to D
Source C:
I dunno how he movd it fast bro on my fam it was there I got my shit but if he see mine he kno it mine then he kno I did the setup
Hansen:
No I wouldn’t charge him with urs. I would show our bosses and say our guy was legit and pretend I got it thru D somehow
May 27, 2012:
Source C:
…donn hit me up told me he need me to come grab 2 dirty pieces for him nd get rid of
Hansen:
What he want u to do with them? Just get rid of them?
Source C:
he wnt em gone 4 good sed it would b bad if they came back up
Hansen:
U can make some $ and I can help u get rid of them. Or were u thinking something else?
Source C:
we could do setups.
Hansen:
For sure. When he want u to get those tho?
We could hide em and I could just “find” them but we couldn’t use em as setups. But risky u holdin onto them too. Either way up to u
Or if u got an idea where to keep them; we could still do other setups.
Well think on donn’s shit – if u wanna use it like D or if u wanna turn them right over after u get $ from donn ..
B. Evidence of Robert Hansen
[10] Hansen testified that he worked in the Guns and Weapons Enforcement Unit from 2007 to 2012. The practice of making arrangements to remove guns from the street without charges being laid was not uncommon for members of this unit. Hansen described the process for removing guns from the street in this manner, also known as “patching over” a firearm. If a person wants to earn consideration, they would provide information to the police regarding a firearm and the firearm would then be seized. No criminal charges would result from “patching over”. Hansen listed places like trashbins or lamp posts as examples of where a “patch over” gun would be found. He explained that, once the firearm was located, the typical procedure was to take a photograph of the firearm, submit the firearm into an activity log and notify a supervisor. The firearm would then either be destroyed or sent to the Centre of Forensic Sciences (“CFS”). Hansen explained that when dealing with confidential sources, he was entitled to make any promise to a source to keep them engaged and he did not have to be honest with a source.
[11] Hansen explained that he was under a tight schedule when drafting the Information to Obtain for Mork’s residence and that he drafted it between May 24 and May 25, 2012. He was also very busy in attending to other duties and ongoing investigations. He wrote paragraphs 1-24 of the Information to Obtain on May 24. He wrote the remaining paragraphs on May 25, starting at 9:42 a.m and taking him approximately one hour.
[12] Hansen testified that his only communication with Source C occurred via text messages or emails specifically referenced in the texts. There were no telephone calls or in-person meetings.
[13] Hansen explained that he did not read through his text message history when drafting the Information to Obtain. His smartphone screen was small, there were numerous text messages, and the language in the texts was difficult to read because of the slang and short forms used. For all of these reasons, Hansen explained that it would have taken him several hours (or up to an entire day) to review all of the text messages. He admitted that his smartphone grouped “threads” of messages by contact, such that all texts between Hansen and each contact were grouped together chronologically.
[14] Hansen stated that he included some information about a firearm in Mork’s basement in the Information to Obtain because he thought he was obliged to include information about the firearm. He further explained that he provided limited information because his goal was to protect Source C.
[15] If the firearm was recovered during the search of Mork’s residence, Hansen stated that he never intended for Mork to be charged or prosecuted for a firearm related offence. If a firearm was to be found in Mork’s residence, he intended to take a photograph of the gun and put it in an activity log.
[16] Hansen stated that he believed Source C was motivated to gain retribution against Mork for using Source C’s girlfriend; and, to a lesser extent, to obtain a financial reward to be paid to his girlfriend. Hansen said he played along with Source C to acquire information and possibly seize a gun. His stated goal was to remove the gun from the streets. Hansen was concerned that simply telling Source C to surrender the gun would not have succeeded, so he played along with the effort to set up Mork.
[17] Hansen explained how the text messages related to what was written in the Information to Obtain. In his evidence in chief, Hansen stated that he never had “any absolute certainty” regarding how the gun got to Mork’s residence and whether it was planted, was already in the residence, or even existed. He explained that Source C never said the words “I want to plant a gun”. The messages were always in the language of a “set up”. He stated that he thought that “set up” meant that Source C would “tee up” information regarding the gun.
[18] Hansen did not seek a search warrant for the gun, but rather, he sought and obtained a CDSA search warrant to search for drugs in the residence. He stated that he felt it necessary to disclose the gun in the Information to Obtain for the CDSA search warrant because of a concern for “full and frank disclosure”.
[19] During cross examination, Hansen agreed that, by May 23, 2012, he had overwhelming indications that Source C was going to plant a firearm in Mork’s residence. He agreed this information was not contained in the Information to Obtain, his duty notes or his confidential source notes. He also agreed that there was no mention of this information in any will-state or paperwork made in the context of Mork’s arrest and drug charge after the warrant was executed on May 25, 2012.
[20] Hansen stated that he omitted any reference to his belief that Source C planted a firearm in Mork’s residence because he was attempting to protect Source C. He agreed that the Information to Obtain contained quite a bit of very specific information that could reveal the identity of Source C.
[21] In 2012, Hansen was an experienced warrant writer who had received training in drafting applications for search warrants. He understood what vetting was, he understood the purpose of vetting, and he had experience working with Crowns preparing material for vetting. He was aware of sealing orders.
[22] In the Information to Obtain, Hansen stated that Source C was motivated to provide information because he was sick of drug dealers taking advantage of people. He initially confirmed this in his evidence. However, under cross-examination, Hansen acknowledged that Source C’s motivation was to stop Mork from messing with his girlfriend and to have her paid out with informant money.
[23] Hansen knew Source C to be referring to a firearm when he spoke of “getting D with heat”.
[24] Hansen agreed that, when Source C was sending texts on May 23, Source C was conveying that he did not feel like setting up Mork anymore.
[25] Hansen agreed that, on May 23, when he suggested to Source C “we could have you hide [your own gun] somewhere so you wouldn’t have to meet”, that this was the first time he broached the idea of legitimately “patching” a firearm from Source C.
[26] Hansen agreed that the idea of surreptitiously planting a firearm in someone’s house was dangerous and that he did not know who was present in Mork’s house, including whether any children were present. He also agreed that the idea of an anonymous drop off in Mork’s house was a terrible plan. Hansen agreed that he was not confronted with this scenario all of a sudden, that he had known that this was the plan for two days before the gun was planted, and that he had neither suggested alternatives nor made any attempt to stop this plan.
[27] Hansen testified that did not think that the fact of a planted gun would have been relevant to Mork’s disclosure. He was unable to answer about how the gun would have been dealt with in the context of Mork’s disclosure brief if the gun had been found, or what would have happened if the firearm had been sent to CFS and “matched” with an unsolved shooting.
[28] During cross-examination, Hansen admitted that he was untroubled by the fact that Source C’s actions constituted a serious criminal offence and that he was prepared to turn a blind eye to his attempt to frame a person with a very serious offence.
III. ANALYSIS
A. Perjury
[29] The offence of perjury is contained in s.131 of the Criminal Code:
131(1) … every one commits perjury who, with intent to mislead, makes before a person who is authorized by law to permit it to be made before him a false statement under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that the statement is false.
[30] It is admitted that Hansen drafted the Information to Obtain and swore it before a person who was authorized to commission it. An Information to Obtain is a form of affidavit.
[31] The prosecution must prove beyond a reasonable doubt the following three elements:
the evidence was false,
the accused knew it was false when he gave the evidence, and
the accused had the intent to mislead the Court.
(R. v. Wilson, [2011] S.C.J. No. 2532 at para.36; R. v. Calder, 1960 CanLII 73 (SCC), 129 C.C.C. 202 (S.C.C.).
[32] Since this is a circumstantial case of perjury, the corroboration requirement in section 133 of the Criminal Code has no application (R. v. Wilson, supra).
[33] The actus reus of the offence is the giving of false evidence. An answer that is literally true can still constitute perjury if the question was meant in a specific sense to the accused’s knowledge and in that sense the answer was false (R. v. Farris, 1965 CanLII 201 (ON CA), [1965] O.J. No. 992 (C.A.). In other words, it is not a defence to say that the accused’s statement is literally true if he well knew and intended that the statement should be taken in another sense.
[34] The mens rea element of the offence of perjury only requires that the accused has intended to mislead, not that the court actually be misled (R. v. Buzeta, [2003] O.J. No. 1547, at para 32 (Sup. Ct.)). An intent to mislead has been described as giving evidence which was “dishonest and deliberately asserted to prevent the Court from arriving at the decision upon credible evidence” (R. v. Wolf, 1974 CanLII 161 (SCC), [1974] S.C.J. No. 88).
[35] The intent to mislead can be inferred from the evidence that establishes that the false evidence was given knowing it to be false, in the absence of other evidence as to his intention (R. v. Buzeta, supra). The Supreme Court of Canada has acknowledged that it is possible, in exceptional circumstances, for a person to lie without the intent to mislead:
… While it is true that someone who lies generally does so with the intent of being believed, it is not impossible, though it may be exceptional, for a person to deliberately lie without intending to mislead. It is always open to an accused to seek to establish such an intent by his testimony or otherwise, leaving to the trial judge the task of assessing its weight.
(R. v. Hebert, [1989] S.C.J. No. 11, at para 5)
[36] There is no requirement to find that the intent was to mislead on a material point or to lead the Court into error with respect to the result of the case (R. v. Buzeta, supra, at paras 31 and 37, R. v. Prashad, 2004 CanLII 34382 (ON CA), [2004] O.J. No. 4298, at para 7 (C.A.)). This element distinguishes the offence of perjury from the offence of giving contradictory evidence.
B. Attempt Obstruct Justice
[37] Section 139(2) sets out the offence of attempt to obstruct justice:
139(2) Every one who wilfully attempts in any manner…to obstruct, pervert or defeat the course of justice is guilty of an indictable offence.
[38] The essential elements for the offence of attempting to obstruct justice under s.139(2) are:
i. the accused must have done enough for there to be a risk, without any further action by him or her, that injustice will result; and
ii. the attempt by the accused to obstruct justice must have been wilful.
(R. v. Yarlasky, 2005 CanLII 3936 (ON CA), [2005] O.J. No. 606, at para 2 (C.A.))
[39] An “attempt” is made where the accused, “having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention, whether or not it was possible under the circumstances to commit the offence” (s.24, Criminal Code). The conduct must constitute an attempt in accordance with this definition to satisfy the actus reus of the offence of attempt to obstruct justice (R. v. Rousseau, 1985 CanLII 42 (SCC), [1985] 2 S.C.R. 38). The accused only needs to attempt to obstruct the course of justice without having any real impact to be convicted under s.139(2) (R. v. David, [2009] O.J. No. 3007, at paras 13-14 (Sup. Ct.)).
[40] The focus of the offence of attempting to obstruct justice is on conduct that might tend to have an impact on the “course of justice”, which is not restricted to existing or proposed judicial proceedings, but includes the investigative stage of proceedings (R. v. David, supra, at para 23, citing R. v. Wijesinha, 1995 CanLII 67 (SCC), [1995] S.C.J. No. 49).
[41] In the case of R. v. David, supra (at para 26), the court commented on the fact that the accused need not have succeeded in perverting the course of justice:
In many cases, the attempts of the accused were unsuccessful or frustrated. For example, consider the bribe that was offered but not taken (Regina v. Bruce, [1981] A.J. No. 285 (C.A.), the witness who was approached or threatened but not dissuaded (Regina v. Patterson (2003), 2003 CanLII 30300 (ON CA), 174 C.C.C. (3d) 193 (Ont. C.A.) and Regina v. Graham (1985), 1985 CanLII 3644 (ON CA), 20 C.C.C. (3d) 210 (Ont. C.A.), aff'd (1988), 1988 CanLII 94 (SCC), 38 C.C.C. (3d) 574 (S.C.C.)) and the false name that was given, but not accepted (Regina v. Spezzano, supra). Therefore, in determining whether an offence under s. 139(2) of the Code has been made out, it is not necessary to find that the course of justice was actually obstructed or perverted. It must be shown that the accused wilfully performed acts with the intention that the course of justice be obstructed, whether successful or not.
[42] The offence can be committed by tendering false documents (R. v. Wijesinha, supra, at para 62).
[43] The actions of the accused must be proven to be wilful and intended to obstruct, pervert or defeat the course of justice beyond a reasonable doubt. A simple error of judgment will not be enough (R. v. Beaudry, 2007 SCC 5, [2007] S.C.J. No. 5, at para 52).
[44] Mens rea is a necessary element requiring proof of the accused’s knowledge of the falsity of the statement (R. v. Savinkoff, 1962 CanLII 554 (BC CA), [1963] 3 C.C.C. 163 (B.C. C.A.)). It is no defence that the accused believed that the evidence he sought to suppress was false evidence (R. v. Walker (1972), 1972 CanLII 1296 (ON CJ), 7 C.C.C. (2d) 270 (Ont. Prov. Ct.). Because the gist of the offence is the wilful attempt to obstruct justice, it also does not matter that the attempt was not only unsuccessful but could not have succeeded (R. v. Hearn (1989), 1989 CanLII 3938 (NL CA), 48 C.C.C. (3d) 376 (Nfld. C.A.), affd 1989 CanLII 14 (SCC), [1989] 2 S.C.R. 1180).
[45] The words “attempts in any manner” in s.139(2) include perjury as a means of committing this offence. Hence, conduct that qualifies as obstruction of justice may also constitute perjury.
C. Ruling on Motion for Directed Verdict
a) Test for Motion for Directed Verdict
[46] The defence may move for a directed verdict of acquittal at the close of the Crown’s case. In doing so, the defence argues that the Crown has failed to lead evidence capable of establishing one or more elements of the offence.
[47] The court must consider whether there is any evidence, either direct or circumstantial, which, if believed by a properly instructed jury acting reasonably, would justify a conviction. As the Supreme Court of Canada recognized in R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] S.C.J. No. 52 (at para 8), the role of the trial judge is circumscribed at this stage:
It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury.
[48] The test for a directed verdict of acquittal is the same as the test for committal for trial at a preliminary inquiry (R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para 21).
[49] While the test to be applied is the same whether the evidence is direct or circumstantial (R. v. Monteleone, supra, at para 8), the nature of the trial judge’s task varies according to the type of evidence advanced by the Crown. The Supreme Court of Canada explained in R. v. Arcuri, supra, at paras 22-23:
22 … Where the Crown's case is based entirely on direct evidence, the judge's task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true…It is for the jury to say whether and how far the evidence is to be believed… Thus, if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge's task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial.
23 The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has not advanced direct evidence -- may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established -- that is, an inferential gap beyond the question of whether the evidence should be believed…The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.
[50] If the motion succeeds, the trial judge withdraws the case from the jury and enters an acquittal, rather than directing the jury to return a particular verdict (R. v. Rowbotham; R. v. Roblin, 1994 CanLII 93 (SCC), [1994] 2 S.C.R. 463, at para 34).
b) Count 1 (Perjury)
[51] Following the completion of the Crown’s case, Hansen moved for a directed verdict. With respect to the perjury charge, the defence argued that the court cannot determine that Source C did not provide information, on May 16, 2012, that “Source has heard that Mork has a handgun hidden in his residence that was previously used in a shooting in Hamilton”. The defence argued that the court potentially only has part of the dialogue. Absent receiving testimony from Source C, the court could not be satisfied that the text messages tendered were the only communications between Hansen and Source C at the relevant times.
[52] Source C contacted Hansen on May 16, 2012. Source C did not want Hansen to know his identity. He asked Hansen to call him by a nickname and demanded that Hansen follow certain rules, including that Hansen would never ask for Source C’s name again. Hansen was to pay any compensation for information to Source C’s girlfriend.
[53] Nowhere in the text conversation filed in court did Source C tell Hansen that Mork has a handgun. In fact, Source C suggested the opposite, ie. that a gun was going to be at Mork’s house in the future. In the text messages from May 16, 2012, Source C stated that he wanted to “set up” Mork and let the police “get him with a thing.” Source C also told Hansen that he would let him know “when it’s there” and once it is there “you won’t have a lot of time to waste.”
[54] On a plain reading of the texts of May 16, 2012, a jury would be entitled to draw an inference that Hansen knew that the gun was not yet at Mork’s residence on May 16, 2012, but that Source C had to go get it and put it at Mork’s place. It would not be a reasonable inference to suggest that Source C advised Hansen of contradicting information through another means on that day. A jury could reasonably conclude that the statement in the Information to Obtain was never made by Source C to Hansen, and that Hansen’s version of events in the Information to Obtain was therefore false.
[55] In the text messages between May 16 and May 25, there was discussion about “setting up” Mork. These conversations progressed to the point where Source C told Hansen that he was going to get a gun. On May 25, Source C stated “ur golden heat in da basement in the couch.” There is some evidence upon which a jury could conclude that Hansen and Source C planned for Source C to plant a gun at Mork’s residence. If a jury drew this conclusion, they would also be entitled to conclude that there was no gun at Mork’s house on May 16 because it had not yet been placed there, and that the relevant statements in the Information to Obtain were false.
[56] In both of these scenarios, the jury could reasonably conclude that the evidence in the Information to Obtain was false, that Hansen knew it was false, and that Hansen had the intent to mislead the court.
[57] I find that there is some evidence which, if believed, could reasonably support a finding of guilt on Count 1.
c) Count 2 (Attempt Obstruct Justice)
[58] The parties acknowledge that, if there is some evidence with respect to perjury, then there is sufficient evidence on count 2 (attempt obstruct justice).
[59] In my view, there is some evidence upon which a jury could conclude that there were, in addition to the evidence with respect to perjury, other material omissions and/or misleading and/or false statements in Hansen’s Information to obtain. These include the following:
i. Source B and Source C’s motivations were misstated in the Information to Obtain.
ii. The Information to Obtain contained a description of Source C’s visit to Mork’s residence on May 25. Hansen described how Source C examined Mork’s handgun, which was in the cushions of the sofa in the basement. This portion of the Information to Obtain contained a significant material omission regarding the fact that Source C actually brought the handgun to Mork’s residence and concealed it in the couch.
iii. In the Information to Obtain, Hansen described how Source C stated that scales and plastic wrap were in Mork’s basement. This was misleading and/or false, as Source C stated that he left his own scales in Mork’s basement and did not tell Hansen anything about plastic wrap.
[60] These were all material omissions or misleading or false statements, in addition to the statement that formed the basis for the perjury charge. The false and misleading information created a risk that injustice will result, such that the Justice of the Peace who issued the warrant was unaware of these significant facts. A jury would have sufficient evidence to conclude that the attempt to obstruct justice was wilful.
[61] I find that there is evidence which, if believed, could reasonably support a finding of guilt on Count 2.
d) Count 3 (Attempt Obstruct Justice)
[62] Count 3 states that Hansen attempted to obstruct justice by “encouraging a person to place a firearm…with the intent that it be used as evidence in a judicial proceeding.” Defence counsel argues that the actions of Hansen did not rise above a mere preparatory act. Since the gun was not tendered as evidence in court, there is no potential for justice to be obstructed in a judicial proceeding.
[63] It is argued that the actus reus must be present in more than a preparatory way (United States of America v. Dynar 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462). The distinction between preparation and attempt is a qualitative one involving the relationship between the nature and quality of the act said to constitute the attempt and the nature of the substantive offence attempted in its complete form (R. v. Deutsch, 1986 CanLII 21 (SCC), [1986] 2 SCR 2; R. v. Root, 2008 ONCA 869, [2008] O.J. No. 5214).
[64] There is some evidence that Hansen encouraged Source C to plant the firearm. Hansen told Source C on May 16, 2012 that Mork “could use some jail time. Do you have any ideas how to get him?” He also stated that arresting Mork with a gun will “get him put away for several years.” In the text messages of May 23, 2012, Source C appeared to want to back out of the plan. Hansen stated they are “not getting done without you probably”, “[a]t least not anytime soon”. When Source C asked “this important bro?”, Hansen replied “[i]t would help tons, especially that heat.”
[65] When Source C sent a message to say that he got the gun and put it in the couch at Mork’s house, Hansen immediately went to apply for a search warrant. In doing so, he failed to tell the Justice of the Peace about the fact that the gun was placed there by Source C.
[66] In all of the circumstances, a jury could conclude that Hansen encouraged Source C to place the firearm at Mork’s house with the intention that it be used as evidence in the prosecution of Mork. The actions of Hansen went beyond mere preparation. Whether or not the gun was actually tendered in evidence is of no moment to this charge. There is some evidence which, if believed, could reasonably support a finding of guilt on Count 3.
D. Ruling on Trial Proper
a) Guiding Principles
[67] I am guided by the following principles:
a) Presumption of Innocence: Every person charged with an offence is presumed to be innocent, unless and until the Crown has proven his/her guilt beyond a reasonable doubt. The presumption of innocence means that the accused started the trial with a clean slate. The presumption stays with him/her throughout the case. It is only defeated if and when Crown counsel satisfies the Court beyond a reasonable doubt that he/she is guilty of the crime charged.
b) Burden of Proof: The person charged does not have to present evidence or prove anything in this case, in particular that s/he is innocent of the crimes charged. From the start to finish, it is the Crown who must prove the person charged guilty beyond a reasonable doubt.
c) Reasonable Doubt: As referred to by the Supreme Court of Canada in R. v. Lifchus (1997), 118 C.C.C. (3d) (S.C.C.) 1: a reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy. It is a doubt based on reason and common sense. It is important to remember, however, that it is nearly impossible to prove anything with absolute certainty. Crown Counsel is not required to do that. A reasonable doubt is one that logically arises from the evidence, or the lack of evidence.
b) Motive
[68] Motive is not one of the essential elements that the Crown must prove in this case. Absence of proven motive however, is a circumstance that the court should consider – one which may support the presumption of innocence and Hansen’s denial of guilt. In this case, the defence argues that the absence of motive in this case should create a reasonable doubt.
[69] Although there is no clear statement of motive in this case, the text messages reflect that Hansen believed Mork “could use some jail time.” I do not accept that there is an absence of motive. At the same time, there is no compelling evidence of motive either. I find that this is a neutral factor in the analysis.
c) Testimony of the Accused
[70] Hansen gave evidence in this trial. I direct myself in accordance with the dicta set out by Mr. Justice Cory in the Supreme Court of Canada decision in R v. W(D) (1991), 1991 CanLII 93 (SCC), 63 CCC (3d) 397 (S.C.C.) at page 409:
a. First, if you believe the evidence of the accused, obviously you must acquit.
b. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
c. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[71] As I stated earlier, there is no onus on the accused to prove anything in this case, but I am mindful that if the accused has raised a reasonable doubt, that ends the matter. Therefore, I propose to analyze the evidence based on the test in W(D).
i) Do I believe the evidence of the accused?
[72] I have considered Hansen’s evidence, which is set out in extensive detail above. In my view, Hansen’s version of events makes no sense. The following portions of his evidence are particularly troubling:
a) Hansen’s evidence in chief was self-serving. He stated that he never had “absolute certainty” regarding how the gun got to Mork’s residence and whether it was planted, was already in the residence or even existed. However, when he was confronted with the texts in cross-examination, he conceded that, by the time of the May 23 texts, he understood that Source C’s plan was to put a firearm in Mork’s house.
b) This admission regarding his knowledge as of May 23 also conflicts with his explanation in chief regarding the May 16 events as they were described in the Information to Obtain. Hansen testified in chief that he did not know the significance of the words “set up” on May 16, and that he thought that Source C was just going to “tee up” information. However, by the time he started drafting the Information to Obtain on May 24, Hansen definitely knew that Source C intended to “set up” or plant evidence of a firearm. Even though he testified that he was busy and it was difficult to review all of the texts, there is no mistaking the fact that he knew that Source C had to go and get a gun and put it at Mork’s place. When he was drafting the warrant on May 24, he could not have honestly believed that the information provided to him by Source C on May 16 suggested in any way that the firearm was already at Mork’s residence.
c) Hansen testified that he took the steps that he did in order to get a gun off the street. However, he acknowledged that it was dangerous to place a loaded gun in the cushions of a couch when the residents of the home were not aware of its presence. He also failed to determine whether any children resided in the home. His explanation for playing along with Source C defies common sense.
d) Hansen testified that he did not want to suggest another location for Source C to “patch” or turn over the gun because he believed that Source C was motivated by a desire to frame Mork and keep him away from his girlfriend. However, on May 23, Source C expressed hesitation because he was angry at his girlfriend. Instead of making an alternative suggestion at that time, Hansen continued to encourage Source C to plant the firearm at Mork’s place. Hansen’s explanation for failing to re-direct Source C to a safer and better alternative to turn over the gun does not make sense.
e) It is extremely troublesome that Hansen never questioned the fact that Source C was committing a serious criminal offence by planting evidence.
f) Hansen stated that he did not tell the Justice of the Peace all of the information in order to protect Source C. However, he put a lot of very specific information in the Information to Obtain that would definitely identify Source C, including the fact that Source C had just been at Mork’s house that morning to purchase a kilogram of cocaine. Hansen was an officer who was experienced in vetting warrant material and was aware of the ability of the Crown to vet an Information to Obtain. This explanation makes no sense.
g) The defence has submitted that that the Crown has identified a series of innocuous and understandable errors in the Information to Obtain. I disagree with this submission. The misrepresentations and false statements in the Information to Obtain were significant. For example, Hansen knew that Source C had left his own scales at Mork’s place but left the impression that there were scales in the basement belonging to Mork. Hansen also assumed or guessed that there was plastic wrap at Mork’s residence and then stated that Source C had told him there was plastic wrap, even though Source C never did. There are other misstatements and omissions that I have set out earlier in this decision. Hansen’s explanation for these “errors” defies common sense and I reject that explanation. In my view, Hansen deliberately embellished the facts to bolster the grounds for a warrant.
h) Defence counsel state that the drugs were Hansen’s main focus, and that the gun was the subject of only a passing reference. However, there was more than a “passing reference” to the firearm. In the Information to Obtain, Hansen stated “[d]isturbing information is included that a handgun is being 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.” Although Hansen sought a CDSA drug warrant, the information about the firearm was clearly intended to bolster the urgency and importance of obtaining a warrant for the protection of the public.
i) Hansen stated that he included the information about a gun in the Information to Obtain in an effort at full and frank disclosure. This is an extraordinary claim, since in his stated effort to be full and frank, he withheld the most crucial piece of information – the fact that Source C placed the firearm at Mork’s residence.
j) The text conversation between Hansen and Source C continued after the warrant was executed. It is notable that, on May 27, Hansen and Source C discussed further firearms and what Source C could do with them. Hansen presented Source C with the option of doing “other setups” with these firearms or turning them over for compensation. Hansen did not explain these messages in his evidence. The conversation from May 27 is extremely troublesome. This conversation appears to contradict Hansen’s evidence that he was only going along with Source C’s plan in order to get the gun off the street.
[73] These are some of the inconsistencies and problems that arise in Hansen’s evidence. I find that Hansen’s version of events is improbable and I reject his evidence outright.
ii) If I do not believe the evidence of the accused, am I left in a reasonable doubt by it?
[74] For the reasons set out above, I do not believe Hansen’s evidence. In addition, when considering the evidence as a whole, his evidence does not raise a reasonable doubt as to guilt.
iii) On the evidence that I do accept, am I convinced beyond a reasonable doubt of the guilt of the accused?
[75] The reasons set out above go into significant detail regarding the evidence on each count. I do not propose to repeat that analysis in detail. However, I intend to briefly set out my analysis on each count below.
e) Count 1 (Perjury)
[76] I find that Source C did not tell Hansen, on May 16, that he had heard that there is a handgun at Mork’s place. In fact, Source C suggested the opposite, ie. that a gun was going to be at Mork’s house in the future. In the text messages on May 16, Source C stated that he wanted to “set up” Mork and let the police “get him with a thing”. Source C also told Hansen that he would let him know “when it’s there” and once it is there “you won’t have a lot of time to waste.”
[77] In the text messages between May 16 and May 25, there was discussion about “setting up” Mork. These conversations progressed to the point where Source C told Hansen that he was going to get a gun. On May 25, Source C stated “ur golden heat in da basement in the couch.” Hansen knew that a firearm was going to be planted in Mork’s residence. There was no gun at Mork’s house on May 16 because it had not yet been placed there.
[78] On May 16, Source C did not tell Hansen that “[he] had heard that Mork has a handgun hidden in his residence that was previously used in a shooting in Hamilton”. Hansen knew that this statement in the Information to Obtain was false. I find that, in making this statement in the Information to Obtain, Hansen had the intent to mislead the court. I find that Hansen’s guilt has been established beyond a reasonable doubt on count 1.
f) Count 2 (Attempt Obstruct Justice)
[79] In addition to the evidence with respect to perjury, I find that Hansen made other material omissions and/or misleading and/or false statements in the Information to obtain. These include the following:
i. Source B and Source C’s motivations were misstated in the Information to Obtain.
ii. The Information to Obtain contained a description of Source C’s visit to Mork’s residence on May 25. Hansen described how Source C examined Mork’s handgun, which was in the cushions of the sofa in the basement. This portion of the Information to Obtain contained a significant material omission regarding the fact that Source C actually brought the handgun to Mork’s residence and concealed it in the couch.
iii. In the Information to Obtain, Hansen described how Source C stated that scales and plastic wrap were in Mork’s basement. This was misleading and/or false, as Source C told Hansen that he left his own scales in Mork’s basement and did not tell Hansen anything about plastic wrap.
[80] These were all material omissions or misleading or false statements, in addition to the statement that formed the basis for the perjury charge. The false and misleading information created a risk that injustice will result, such that the Justice of the Peace who issued the warrant was unaware of these significant facts.
[81] I further find that Hansen deliberately embellished the facts and intentionally omitted material facts from the Information to Obtain. Hansen’s actions went beyond mere preparation. The fact that a firearm was never tendered as evidence in the prosecution of Mork is of no moment to the critical elements of this offence. On the facts before me, it has been established beyond a reasonable doubt that Hansen attempted to obstruct justice in the manner described in count 2. I therefore find him guilty on count 2.
g) Count 3 (Attempt Obstruct Justice)
[82] When Hansen was first approached on May 16, 2012, Source C indicated his intention to “set up” Mork. Hansen acknowledged through text messages that “He could use some jail time” and asked “Do u have any ideas how to get him?” After a brief discussion of the plan, Hansen told Source C that “this will get him put away for several years.”
[83] On May 23, 2012, Source C demonstrated an intention to withdraw from the plan and asked whether he needed Source C. Hansen responded “They’re not getting done without you probably”. Source C asked whether this is important to him, to which Hansen responded “it would help tons…Especially the heat”. These messages demonstrate that Hansen encouraged Source C to continue with the setup plan. Source C had already indicated his desire to back out from the plan yet Hansen tried to convince Source C to continue with the plan.
[84] After Source C carried through with the plan, but the police failed to find the firearm at Mork’s residence, Hansen sent a text to Source C on May 25, 2012 stating that “if we don’t find anything we can’t lock him up.”
[85] I find that Hansen actively encouraged Source C to plant the firearm in Mork’s home. The planting of evidence is a serious act that creates a risk that injustice will result. On the facts before me, it has been established beyond a reasonable doubt that Hansen attempted to obstruct justice in the manner described in count 3. I therefore find him guilty on count 3.
IV. CONCLUSION
[86] In the result, I find that the Crown has proven beyond a reasonable doubt that Hansen committed the offences as charged. Accordingly, I find Hansen guilty on all counts.
Braid, J.
Released: January 29, 2016