COURT FILE NO.: CR-17-361 DATE: 20180926

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant Cynthia Nadler, for the Applicant

• and -

A.G. Respondent Michael K. Quigley and Amanda M. Somek, for the Respondent

REASONS FOR RULING

MISTRIAL – JUNE 9, 23, 2016 OFFENCES REASONS FOR CONVICTION – July, 13, 2016 OFFENCES

BARNES J.

INTRODUCTION

[1] In a previous decision, I dismissed the defence application to stay these proceedings and stated my intention to order a mistrial: R. v A.G. , 2018 ONSC 3043. On June 1, 2018, I granted the Crown’s application to limit the declaration of a mistrial only to those offences that arose from June 9 and 23, 2016, which involved the complainant. These are my reasons.

BACKGROUND FACTS

[2] The offences arising from June 9 and 23, 2016 are two counts of utter threat to cause death, break and enter with intent to commit an indictable offence, unlawful confinement, possession of a weapon (to wit, a handgun) for a purpose dangerous to the public peace, and four counts of fail to comply with recognizance, all contrary to the Criminal Code of Canada.

[3] The offences arising from July 13, 2016 are carry a concealed weapon (a hand gun), possessing a weapon (to wit, a hand gun) for a purpose dangerous to the public peace, possessing a restricted weapon (a hand gun), possession of a handgun without a license, careless storage of a firearm, and two counts of fail to comply with recognizance, all contrary to the Criminal Code of Canada. I described the background facts in R. v. A.G . , 2018 ONSC 3043, at paras. 4 to 17 as follows:

[4] On June 10, 2016 and June 23, 2016, the complainant gave videotaped statements to the police. She made allegations against the accused.

[5] She alleged that the accused threatened to kill her during a phone call on June 10, 2016. On the same day, she alleged that he entered her home and took away their two children without her consent. The accused was bound by a recognizance with a house arrest condition at the time.

[6] The complainant told the police that on June 23, 2016, the accused broke into her home with an unidentified male companion, confined her in a chair, and used a handgun to threaten to kill her.

[7] As a result of these allegations, a warrant was issued for the accused’s arrest. On July 13, 2016, the accused was arrested. Police allege that upon his arrest, he was found to be in possession of two stolen cell phones, a restricted firearm, and a magazine for storing ammunition in a firearm.

[8] Based on the complainant’s evidence to the police, the accused was charged with uttering a death threat on or about June 10, 2016, break and enter a dwelling house on or about June 23, 2016, unlawful confinement of the complainant, possession of a weapon for a purpose dangerous to the public peace, and uttering a death threat, contrary to the Criminal Code.

[9] Based on the circumstances arising from his July 13, 2016 arrest, he was charged with carrying a concealed weapon without authorization, possessing a firearm for a purpose dangerous to the public peace, possessing a restricted weapon, and careless storage of a firearm and careless storage of ammunition, all contrary to the Criminal Code.

[10] On October 13, 2016, the complainant swore an affidavit recanting her allegations against the accused. She was cross-examined on her affidavit at a Bail Review hearing on October 13, 2016, and recanted her allegations against the accused. On March 20, 2017, she testified at a preliminary inquiry and recanted her allegations against the accused.

[11] The complainant was subpoenaed to testify at the accused’s trial on November 14, 2017. She did not attend court as ordered. On November 16, 2017, at the request of the Crown, I issued a material witness warrant, pursuant to Subsection 705(1) of the Criminal Code, for the arrest of the complainant.

[12] The Crown brought a Khan application to admit the complainant’s June 10, 2016 and June 23, 2016 statements for the truth of their contents. This application was granted. The defence brought a Khan application for the admission of the complainant’s affidavit sworn on October 13, 2016, and transcripts of her preliminary inquiry and bail review testimony where she recanted her allegations against the accused. This application was granted.

[13] The trial began on November 14, 2017. The Crown closed its case on December 4, 2017. The defence called no evidence. The Court reserved judgment. On December 7, 2017, the police arrested the complainant on the material witness warrant. On that same date, the police released the complainant without bringing her into court.

[14] On January 12, 2018, on the face of what I found to be overwhelming evidence corroborating her allegations, I rejected the complainant’s recantation as untruthful. I was satisfied of the accused’s guilt beyond a reasonable doubt and convicted him of all charges. The case was adjourned to March 22, 2018 for sentencing.

[15] On March 7, 2018, defence counsel asked the trial Crown whether further efforts had been made to locate the complainant. On March 14, 2018, Crown counsel informed defence counsel that the complainant had been arrested and released by the police on December 7, 2017.

[16] On March 22, 2018, defence counsel informed the court that he had filed an Application seeking a stay of proceedings. This was based on the failure of the prosecutor to disclose her instructions to the police to remove the material witness warrant from CPIC and to disclose that the complainant had been arrested and released by the police on December 7, 2017.

[17] The Application was adjourned to April 23, 2018 for argument. On April 17, 2018, defence served the prosecutor and four Peel Regional Police officers with subpoenas, requiring them to attend and provide evidence on the Stay Application.

[4] On May 22, 2018, I dismissed a defence application for a stay of proceedings. I concluded that the circumstances surrounding non-disclosure by the prosecutor constituted an abuse of process, and that the proper remedy was a mistrial. I informed the parties of my intention to impose a mistrial, after rendering a decision on A.G ’s bail application: R. v. A.G ., paras. 70-87.

[5] After I released the May 22, 2018 decision, the Crown applied for an order limiting the mistrial to charges that involve the complainant (i.e. the June 9 and 23 charges). The defence opposed.

POSITION OF THE PARTIES

[6] The defence subpoenaed the trial prosecutor as a witness on the Stay of Proceedings Application. The Application was argued by a Crown counsel who did not conduct the trial. Prior to argument on the application defence counsel informed the court of his intention to seek bail for A.G. and requested that should the court decide that a remedy short of a stay was appropriate, the court should delay imposing that remedy until a decision on bail had been rendered.

[7] The trial prosecutor submits that the prosecution was under the impression that the stay application was only in relation to charges arising from June 9 and June 23, 2016, which were allegations by the complainant. The prosecutor submits that this was a reasonable assumption, because the impugned prosecutorial conduct only relates to failure to disclose information about the complainant. In addition, the July 13, 2016 offences stem from the arrest of A.G.. The charges arise from the circumstances of the arrest which are independent of the complainant’s allegations.

[8] The prosecution submits that there is strong circumstantial evidence of A.G.’s guilt independent of anything the complainant may say at trial. The events of July 13, 2016 are discrete and distinct from the events of June 9 and 23, 2016 and therefore are not captured or tainted by the abuse of process decision. In addition, the argument has merit and the conviction on the July 13, 2016 offences should stand.

[9] The defence is opposed. Defence submits that it was obvious that the defence stay application related to all counts on the indictment. At the first instance, the prosecutor failed to advance the argument for a remedy restricted to the June 9 and June 23, 2016 offence dates. The defence submits that the only reason the prosecution had an opportunity to ask for a remedy restricting the mistrial to the June 9 and June 23, 2016 offences is that the defence asked the court not to declare a mistrial until the court had heard A.G.’s bail application. It is thus unfair for the court to entertain the prosecution’s late application.

[10] The defence explains that one cannot assume that the complainant would have no relevant evidence to give on the July 13, 2016 offences. The defence submits that the complainant’s testimony on whether A.G. had a handgun and the type of handgun he had are important pieces of evidence relevant to evidence of possession and possession of a weapon for a purpose dangerous to the public peace, which arose from the July 13, 2016 arrest of A.G.. The defence explains that an application to sever the June 9 and 23, 2016 offences from the July 13, 2016 offences was opposed by the Crown. For all of these reasons, it is the position of the defence that the June 9 and 23, 2016 offences are linked to the July 13, 2016 offences, and the mistrial should apply to all charges.

ISSUES AND ANALYSIS

(a) Should the court entertain the prosecution’s new argument?

RELEVANT LEGAL PRINCIPLES

[11] A trial judge is not functus officio after a finding of guilt if the judge has not imposed sentence: R. v. Lessard (1976), 30 C.C.C. (2d) 70 (Ont. C.A.) at paras. 12-14; R. v. Hayward (1993), 83 C.C.C. (3d) 193 (Ont. C.A.), at para. 15.

[12] As the trial judge, I am not yet functus and it is open to the prosecution to seek leave to re-open to advance the new argument, just as it was open to the defence to request that the court not impose a mistrial until after the bail application had been disposed of.

[13] This is not an application to re-open a case after conviction. The test for re-opening after conviction is articulated in R. v. Kowall , [1996] O.J. No. 2715 (Ont. C.A). Rather, this is an application to raise a new argument on an issue previously adjudicated. The principal consideration in this analysis is trial fairness.

[14] The question to be answered is whether granting leave to raise the new argument would render the trial unfair. Considerations under the trial fairness analysis include:

1. There should be an assessment of whether the argument could have been raised in the first instance if the moving party had been diligent;

2. The new argument must have merit, such as to be worthy of consideration;

3. The new argument should have a realistic potential to have a meaningful impact on the decision previously rendered;

4. Failure to consider the new argument could result in a miscarriage of justice.

[15] The circumstances of each case should be assessed in the context of these factors and any other factors impacting the fairness of the trial. Where granting leave will render the trial unfair, the request should be refused.

[16] A circumstance where parties can continually seek to re-litigate an issue previously adjudicated will be deleterious to the proper administration of justice. There should be a finality of matters previously adjudicated, subject to proper avenues of appeal.

DISCUSSION

[17] In this case, the trial Crown counsel was different from Crown counsel who argued the stay motion. However, the Crown is indivisible and it is apparent that with the appropriate due diligence, the argument for a partial stay or mistrial could have been raised at the first instance.

[18] The argument appears to have some merit and warrants consideration. The impugned state conduct relates to the complainant, whose allegations relate entirely to the offences dated June 9 and 23, 2016.

[19] While the complainant’s allegations formed the basis for the arrest of A.G., the circumstances that resulted in the July 13, 2016 charges arose independent of the complainant’s allegations. The argument advanced by the prosecution appears to have merit, and if successful, can have a significant impact on the decision previously rendered. If the argument is successful, the mistrial would apply only to the June 9 and 23, 2016 offences. The convictions on the July 13, 2016 offences would remain.

[20] Given the seriousness of the allegations, and unless granting leave would create circumstances that would render the trial unfair, society’s interest in the timely adjudication of the case on its merits must prevail and an unwarranted windfall in favour of the accused would constitute a miscarriage of justice.

[21] The Crown gave the defence ample notice of its intention to advance the argument to restrict the remedy to the June 2016 offences, and the defence had ample opportunity to consider and respond to the Crown’s argument. The argument sought to be advanced is not to re-argue the stay application again, but relates to the discrete issue of what remedy should be imposed for a finding of abuse of process. This discrete issue was not put before the Court for consideration at the first instance.

[22] In addition, the prosecution’s request to restrict the remedy to the June 2016 offences had no impact on the opportunity of either party to make fulsome submissions on the abuse of process motion, the bail hearing and the motion to restrict the remedy to the June 2016 offences; and had no impact on the merits and decision on the primary issue in the first instance i.e. whether or not the impugned conduct constitutes an abuse of process; and on the merits and decision on the current motion to restrict the mistrial to the June 2016 offences.

[23] Under all the circumstances of this case, a decision to consider argument on this discrete issue will not render the trial unfair. Leave is granted.

(b) Reasons for conviction

[24] It is prudent to outline my reasons for conviction at this juncture. The central allegations for the July 13, 2016 offences is that while bound by two recognizances, ordered on July 23, 2014 and October 19, 2015, each with a condition prohibiting him from possessing any weapons, A.G. committed weapons offences. On July 13, 2016, he actively resisted arrest by fleeing from police and engaging in a violent struggle with police while in illegal possession of a firearm, a loaded magazine for the firearm, and two cellphones.

[25] Despite able cross-examination by defence counsel, all Crown witnesses who testified with respect to the July 13, 2016 allegations were credible, consistent, and unshaken in their testimony. I accept their testimony as fact.

[26] After a violent struggle, Constable Carter arrested A.G. on July 13, 2016. Constable Cutler placed A.G. in the back seat of an unmarked police vehicle. Constable Carter spoke to 911 emergency dispatch and reported the arrest.

[27] A civilian, Mr. H., observed Constable Cutler struggle with A.G. in an effort to arrest him. He reported what he saw to 911 and reluctantly assisted Constable Cutler in handcuffing A.G.. Mr. H. observed Constable Cutler escorting A.G. to and placing A.G. in an unmarked police vehicle.

[28] Constable Cutler testified that he was conducting surveillance on an address in Malton. He observed A.G. exit the address. He identified himself as police and asked A.G. to stop. A.G. fled. Constable Cutler chased A.G. and caught up to him. He and A.G. struggled. Constable Cutler was assisted by Mr. H. to handcuff A.G.. He placed A.G. in an unmarked police vehicle. Constable Cutler spoke to a 911 operator to report what had happened.

[29] Constable Milroy and Constable Holmes arrived on scene. Constable Cutler did not search A.G. before placing him in the unmarked police vehicle. Constable Milroy took A.G. out of the police vehicle to search him. Constable Holmes observed a firearm on the floor where A.G. was seated. A magazine with ammunition was wedged in the passenger seat near where A.G. was sitting. Two cell phones were also on the back seat where A.G. was sitting. The cellphone and magazine were about an inch apart. Constable Holmes had an unobstructed view of the items.

[30] A Centre of Forensic Sciences expert Christian Taylor testified that no DNA was found on the firearm. He explained that fewer than 10% of weapons generate DNA samples suitable for comparison.

[31] Constable Patterson, a fingerprinting expert, said that no fingerprints were found on the firearm. He explained that it is difficult to obtain fingerprints from smooth surfaces and this is not an unusual occurrence.

[32] Trevor Campbell, also from the Centre for Forensic Sciences, confirmed that the firearm was a restricted weapon, that the magazine contained ammunition, and that the magazine fit in the firearm.

[33] The defence suggested that Constable Cutler searched A.G. prior to placing him in the police vehicle. This suggestion is not supported by the evidence. Mr. H. confirmed Constable Cutler’s evidence that the arrest involved a violent struggle with A.G., followed by handcuffing and immediate escort to the police vehicle.

[34] When considered in the context of a violent exhausting arrest and the immediate sequence of events following A.G ’s arrest, Constable Cutler’s assertion that he did not search A.G. before placing him in the police vehicle is reasonable under all the circumstances, as is the assertion by Constables Milroy and Holmes that, given the violent nature of the arrest, they wanted to make sure that A.G. had been searched properly and took him out of the police vehicle for that purpose.

[35] Constable Bothman testified that he had custody of the police vehicle just prior to handing it over to Constable Cutler. He explained that it is his practice to place his police equipment in the back seat of the police vehicle. He said he followed his practice on July 13, 2016 and did not see any objects or items on the back seat or floor of the police vehicle. I find that July 13, 2016 was of particular significance to Constable Bothman, because he was not particularly pleased to hand over the police vehicle to Constable Cutler as he was actively engaged in his own duties. Constable Bothman said he did not use the police vehicle to transport anyone prior to handing it over to Constable Cutler.

[36] Constable Cutler did not check the rear passenger seat or floor when he took custody of the vehicle from Constable Bothman. Constable Cutler had a clear view of the rear of the vehicle and saw no items. I accept Constable Bothman’s evidence and find that when he turned over the vehicle to Constable Cutler there was no firearm, magazine or cellphones in the back seats or floor of the police vehicle.

[37] A.G. had opportunity to discard items from his person when Constable Cutler exited the vehicle to speak with Constable Holmes and Constable Milroy. The items were located close to where A.G. had been seated. There were no items in the back seat and floor prior to A.G.’s occupation of the back seat.

[38] Danielle Fortier, an investigator from the telecom company, explained that call logs on the two cell phones seized show phone calls to and from a cellphone linked to the complainant. The two cellphones were obtained in Ms. K’s name. She testified that her purse, which contained her identification had been stolen in June 2016.

[39] The cumulative effect of all these factors leads me to conclude that the defence suggestion that these items were either planted or were already in the vehicle when A.G. was placed in it is fanciful and speculative at best. The only reasonable and logical inference that can be drawn from the evidence I accept, leaving me satisfied beyond a reasonable doubt, is that A.G. was in possession of the restricted firearm, the magazine with loaded ammunition, and the cell phones. He had knowledge and control of these items. A.G. discarded these items when he was placed in the back seat of the vehicle. A.G. did not have a licence or other basis to possess the firearm lawfully.

[40] In addition, A.G. stored the firearm, magazine, and ammunition on his person and discarded them by removing them from his person and leaving them in the back seat and rear floor of the police vehicle. This conduct constitutes a marked departure from the standard of care of a reasonable person in the circumstances: R. v. Finlay , [1993] 3 S.C.R 103. A.G. was careless in his storage of the firearm, magazine, and ammunition.

[41] When the circumstances are viewed objectively, it is clear that it was also A.G.s’ intention to conceal the firearm, magazine and ammunition. He concealed these items, he knew the firearm was a weapon and he took steps to hide all these items so that they would not be observed and come to the attention of others : R. v. Felawka , [1993] 4 S.C.R. 199. An objective assessment of all the circumstances including A.G. ’s flight from police and his violent struggle during his arrest indicate that it was A.G.’s intention to possess the firearm for a purpose dangerous to the public peace: R. v. Kerr , 2004 SCC 44, [2004] 2 S.C.R. 371. A.G. was in possession of the firearm at a time when he was bound by two recognizances of bail, each prohibiting him from possessing any weapons.

[42] In the result, on the basis of all the evidence I do accept, I am satisfied that the Crown has discharged its burden of proof beyond a reasonable doubt and therefore, A.G. is found guilty of the July 13, 2016 offences.

(c) Should a mistrial be declared in relation to the July 13, 2016 charges?

[43] I have previously concluded that the failure of the Crown to notify the court and the defence of her intention to instruct the police to remove a material witness warrant for the complainant constituted an abuse of process because, in effect, it interfered with the execution of a judicial order. The Crown should have applied to the court to rescind the material witness warrant, thus providing the defence with the opportunity to make submissions on a request with significant ramifications on the ability of the police to bring the central witness on the June 9 and 23, 2016 charges before the court.

[44] Two days after the case had concluded, but prior to the court rendering a decision, the police located, arrested and released the complainant as a result of the Crown’s decision to remove the material witness warrant from the CPIC system. The defence was not made aware of these two important events until defence made its own inquiries of the Crown.

[45] I concluded that these actions were in breach of the prosecution’s obligation to disclose and violated fundamental notions of fairness, such as to undermine the integrity of the judicial process: R. v. A.G ., 2018 ONSC 3043, paras 70 – 80.

[46] The impugned state conduct in this case relates solely to the failure of the prosecutor to discharge her disclosure obligations with respect to a central and main foundation of the state’s case against A.G. on the June 9 and 23, 2016, allegations.

[47] Short of engaging in fanciful speculation, the complainant’s testimony has no bearing on the circumstances which form the foundation of the July 13, 2016 allegations. In fact, even should the complainant state that she has never seen A.G. with the firearm before, this would have no bearing on the Crown’s ability to prove the case. On the other hand, if the complainant should testify that she had seen A.G. in possession of the firearm, this would only strengthen the Crown’s case. These are examples of two reasonable outcomes of the complainant’s testimony. Other outcomes can be described but require fanciful speculation.

[48] As can be gleaned from the allegations and the reasons for conviction, absent fanciful speculation, when viewed objectively, the evidence of the complainant is for all intents and purposes unrelated to the July 13, 2016 offences. In effect, therefore, the impugned state conduct that was ruled to be an abuse of process is unrelated to the July 13, 2016 offences.

[49] In this case the impugned conduct has no bearing on the July 13, 2016 charges, and there was no bad faith on the part of the state actors. For all these reasons, when viewed objectively, the improper state conduct does not taint the July 13, 2016 offences. This is one of those rare and exceptional circumstances where there is no basis to extend the remedy of a mistrial to the July 13, 2016 offences.

[50] Therefore, the convictions on the July 13, 2016 charges shall remain, and the mistrial is limited to the June 9 and 23, 2016 offences.

Barnes J.

Released: September 26, 2018

COURT FILE NO.: CR-17-361 DATE: 20180926

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN

• and - A.G. REASONS FOR RULING RE: LIMITING MISTRIAL BARNES J

Released: September 26, 2018