Court File and Parties

COURT FILE NO.: 2385/19

DATE: 20191025

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

John Goodall

Defendant

COUNSEL:

Bianca DiBiase, for the Crown

Luigi Perzia, for the Defendant

HEARD: October 17, 2019

BEFORE: Justice R. Raikes

Reasons for Judgment

[1] The defendant applies under sections 7 and 24 of the Charter to exclude the evidence at trial of his former girlfriend, Justice Hardy. He asserts that police conduct during the interview of Ms. Hardy on February 13, 2018 constitutes an abuse of process which should be remedied by exclusion of her testimony in its entirety.

[2] The evidence on the application is comprised of the audio-video recording of the interview, the transcript of same and Ms. Hardy’s evidence at trial. Counsel agreed at the outset of trial that the application should be argued after the evidence at trial was complete as this was a trial by judge alone.

[3] The application was argued after the evidence was complete and before closing submissions. Counsel then made closing submissions in the trial and, in doing so, took into account the prospect that the evidence might be excluded (or not).

[4] I reserved my decisions for both the application and trial. This decision deals solely with the defendant’s application to exclude Ms. Hardy’s evidence.

[5] For reasons that follow, the application is dismissed.

Background

[6] The defendant is charged with offences related to a break and enter of a residence, possession of a tool used for that purpose, assault and unlawful confinement of an elderly woman, theft of her motor vehicle, and possession of stolen property less than $5,000 – her credit cards.

[7] The offences occurred after 11 p.m. on February 10, 2018 in Sarnia. The following morning, the defendant’s girlfriend, Justice Hardy, used the stolen credit cards of the victim at various Sarnia area stores. There is videotape from two of the stores showing her using same. The defendant was captured on video in the one of the two stores.

[8] Ms. Hardy was arrested by Sarnia Police on February 13, 2018. She was charged with nine counts related to her use of the victim’s credit cards and one unrelated count from January 2018 for breach of the terms of an undertaking.

[9] She was interviewed by Detective Sergeant Kahnert and Detective Constable Knapp of the Sarnia Police on February 13, 2018 in an interview room at Sarnia Police Headquarters. The interview lasted approximately one hour and forty-eight minutes.

[10] At the commencement of the interview, Detective Constable Knapp told Ms. Hardy that she was under arrest at that point for 10 different charges. She outlined the 10 charges and then advised Ms. Hardy of her right to retain and instruct counsel. Ms. Hardy informed her that she had already called her lawyer, Mr. Guggisburg. She was asked whether she was satisfied and indicated that she was.

[11] At trial, Ms. Hardy testified in cross-examination that she did not speak with her lawyer but left him a message. In re-examination, she was shown the transcript of her statement to police and accepted that she must have spoken with him. It is apparent from what she said later in the interview that she did speak with him because she indicated that her lawyer told her to say nothing.

[12] In any event, following the exchange about her right to counsel, Detective Constable Knapp then cautioned her with respect to her right to silence and the use that could be made of anything she might say if she did speak with police. Ms. Hardy indicated that she understood that caution.

[13] Through most of the interview, Ms. Hardy told the detectives that she had found the victim’s credit cards and identification on a sidewalk in front of a local elementary school. Near the end of the interview she indicated that she got the cards from the defendant.

[14] At trial, Ms. Hardy testified that she was reluctant to tell police that she got the cards from the defendant because she did not want to get him into trouble with police. In cross-examination, she indicated that part of the reason she told police that she got the cards from John Goodall was because she was afraid of the consequences to her of being charged with involvement in the home invasion. Losing her children went through her head. That she could be in jail for a long time ran through her head. Those were factors in why she talked to police.

[15] However, Ms. Hardy also testified that she did not tell police that she got the cards from the defendant because of threats made by police. Rather, she testified that she told them because they told her of the home invasion and the old lady. She indicated that she ultimately told police the truth as to where she came by the credit cards.

[16] The defendant argues that Ms. Hardy’s s. 10(b) right to counsel was violated. Further, Ms. Hardy was subjected to threats of prosecution for more serious charges which the police knew had no basis in fact, loud, aggressive questioning, and the risk of long-term loss of her children. He submits that the police’s violation of her s. 10(b) rights combined with inappropriate interview techniques amount to coercion. Her statement was not voluntary.

[17] He urges me to find that such police conduct amounts to an abuse of process in the residual category contrary to s. 7 of the Charter for which the appropriate remedy under s. 24 is exclusion of her evidence in its entirety.

Defendant’s Abuse of Process Claim/s. 7 Charter Rights

[18] The common law doctrine of abuse of process is subsumed in s. 7 of the Charter: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 at para. 73. Depending on the circumstances, different Charter guarantees may be engaged by the alleged abuse of process; if so, the claim may be better approached by the specific procedural guarantee in the Charter: R. v. Nixon, 2011 SCC 34 at para. 36.

[19] A stay of proceedings under s. 24(1) of the Charter for an abuse of process is only available in “the clearest of cases”. In O’Connor, Justice L’Heureux-Dube wrote that remedies “less drastic than a stay of proceedings” may be available in circumstances where the defendant has proven a s. 7 violation but does not meet the threshold of “clearest of cases” (see para. 69).

[20] In Nixon, Justice Charron wrote for a unanimous court at para. 38:

[38] Thus, in defining what constitutes a violation it is important to recall what kind of harm the common law doctrine of abuse of process was intended to address and, in turn, why this degree of harm called for a stay of proceedings as the appropriate remedy. In other words, while s. 24(1) of the Charter allows for a wide range of remedies, this does not mean that the abuse of process can be made out by demonstrating a lesser degree of harm, either to the accused’s fair trial interests or to the integrity of the justice system. Achieving the appropriate balance between societal and individual concerns defines the essential character of abuse of process.

[21] Further, at para. 41, Charron J. wrote as follows with respect to the residual category of cases where there has been a s. 7 violation that does not meet the threshold necessary to obtain a stay of proceedings:

[41] Under the residual category of cases, prejudice to the accused’s interests, although relevant, is not determinative. Of course, in most cases, the accused will not need to demonstrate that he or she was prejudiced by the prosecutorial conduct in some significant way to successfully make out an abuse of process claim. But prejudice under the residual category of cases is better conceptualized as an act tending to undermine society’s expectations of fairness in the administration of justice. This essential balancing character of abuse of process under the residual category of cases was well captured by the words of L’Heureux-Dube J. in R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659. She stated the following:

Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with the prosecution of the charge. The prosecution is set aside, not on the merits (see Jewitt, supra, at p. 148), but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. The doctrine is one of the safeguards designed to ensure “that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society” (Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, at p. 689, per Lamer J.). It acknowledges that courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfil its function. Consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings. [Emphasis added (in Nixon); p. 1667.]

[22] The defendant argues that his right to a fair trial has been undermined by the police’s violation of the s. 10(b) rights of Ms. Hardy. Ignoring her right to counsel and thwarting its implementation tarnishes the integrity of the administration of justice. It is disproportionate to society’s long-term interest in proper police conduct in criminal investigations. Defence counsel posits that if police were to “water-board” a witness to get information that leads to an arrest, surely society’s expectation in the fairness of the criminal justice system would be undermined.

[23] He relies upon the decision of the Nova Scotia Court of Appeal in R. v. Derbyshire, 2016 NSCA 67 where the Court of Appeal upheld a trial judge’s decision to exclude evidence obtained by undercover police officers posing as members of an outlaw motorcycle gang. The officers confronted the accused in a dimly lit parking garage, ordered her to get back into her car, and demanded that she provide details of a homicide and her involvement in helping a suspect escape. She gave them the information demanded because she feared for her safety. She was forced to travel with them throughout the day where additional facts were elicited. She was charged as an accessory after the fact.

[24] The trial judge dismissed a Charter motion for breach of her right to silence but found that the police conduct amounted to an abuse of process. He excluded her evidence under s. 24(2) of the Charter.

[25] At para. 104, the Court of Appeal wrote:

[104] With all due respect, the common law doctrine of abuse of process is available to assess whether police conduct crossed the line from skillful police work to conduct that, if condoned, would be harmful to the integrity of the justice system….

[26] At para. 118, referring to the Supreme Court’s decision in R. v. Hart, 2014 SCC 52 with respect to the significance of police use of intimidation and implied threats of harm, the Court wrote:

[118] …What Justice Moldaver makes clear is that it is the function of the doctrine of abuse of process to guard against police conduct that society finds objectionable and which threatens the integrity of the justice system.

[27] In both Hart and Derbyshire, the wrongful police conduct induced inculpatory statements by the accused. The cases before the court involved the very person who was coerced to cooperate and made admissions to police.

[28] The facts in Derbyshire and Hart are clearly distinguishable, not least because it is not Ms. Hardy – the person whose s. 10(b) rights were violated- who seeks to exclude her evidence. Ms. Hardy’s s. 10(b) rights are personal to her. If she were charged or if she pursued civil remedies for breach of her s. 10(b) Charter rights, her standing to assert that right/claim cannot be disputed.

[29] Here, Ms. Hardy testified as a Crown witness. She expressed no reservation to the court about doing so. She is not on trial.

[30] It is her former boyfriend, the accused, who seeks to exclude her evidence under s. 24(1) or (2) of the Charter on the basis that the alleged violation of her s. 10(b) rights amounts to an abuse of process in respect of his charges because it happened in the course of investigation of the matter before this court. It undermines his fair trial rights and it brings the administration into disrepute.

[31] Defence counsel concedes that this is not a case that meets the threshold of “clearest of cases” that would justify a stay of the charges against him. Further, it is undisputed that Ms. Hardy’s evidence did not lead to the discovery of other evidence. There is no “fruit of the poison tree”. Hence, it is not the case that consideration need be given to excluding evidence that followed from her statement to police.

[32] I have carefully reviewed all of the evidence on this application including the audio-video recording of Ms. Hardy’s interview by police. In that regard, I find that:

1. the entire purpose of the interview of Ms. Hardy was to ascertain how she came by the credit cards that were stolen during the home invasion and whether Ms. Hardy had any awareness of or involvement in that incident;
2. when Ms. Hardy was told of her right to counsel and right to silence, she was told only of the 10 charges facing her. It was confirmed that she had spoken to a lawyer about those charges;
3. the charges that she was arrested on were comparatively minor. Charges arising from the home invasion and robbery were significantly more serious;
4. she was not told that the purpose of the interview was the home invasion and robbery incident until later in the interview;
5. Ms. Hardy was not informed that she had a right to speak to a lawyer with respect to any charges potentially arising from the home invasion and robbery;
6. Ms. Hardy asked to speak to a lawyer more than once;
7. her requests to speak to a lawyer were ignored;
8. police did not facilitate a further call with her lawyer after she demanded to speak to a lawyer;
9. police continued the interview during which they indicated that she could and perhaps would be charged as a conspirator in the home invasion incident.

[33] I do not accept the defendant’s submission that Ms. Hardy’s free will was over-ridden and the statement given by her was involuntary. In that regard, I accept Ms. Hardy’s evidence at trial that she did not believe the threats made by police and her decision to disclose the source of the credit and debit cards and identification was because she was thinking of the older woman being tied up in the home invasion.

[34] Because I had the defendant’s application in hand and had reviewed it including the evidence of her interview by police before she testified at trial, I carefully considered the circumstances in which Ms. Hardy gave her statement and what she said to police when assessing her testimony at trial.

[35] Dealing with the reliability of the evidence of Ms. Hardy, I find her evidence at trial to be credible and reliable for reasons that are fully explained in my decision on the merits. I note that the defendant had a full opportunity to cross-examine her on any inconsistencies in her testimony, and the circumstances of and what she told police during her interrogation. I took those circumstances into account in assessing the reliability of her evidence.

[36] Does police conduct in this case amount to an abuse of process vis-à-vis Mr. Goodall? Police obtained information confirming that Ms. Hardy obtained the credit cards from the defendant. They obtained that information after Ms. Hardy asked to speak to her lawyer multiple times and without advising that she had a further right to consult counsel given that her jeopardy was higher. Would she have told police that she got the cards from the defendant if given the additional opportunity to speak to counsel? Would she have disclosed that fact to police in any event? That is a matter of speculation.

[37] I am satisfied that the impugned police conduct does not violate Mr. Goodall’s fair trial rights. There is no prosecutorial misconduct here. Procedural safeguards under the Charter have been satisfied. Police conduct in this case did not result in admissions from the defendant nor did Ms. Hardy incriminate herself in relation to the offences arising from the home invasion. If anything, her information to police about the source of the credit cards was exculpatory for her. She was certainly aware that she had the right to remain silent; in fact, it appears that her counsel suggested that course for the charges she had been arrested on.

[38] In my view, “society’s expectations of fairness in the administration of justice” are not undermined in the circumstances of this case. That is not to say that police misconduct involving witnesses may never constitute a s. 7 Charter violation. I observe that:

1. Ms. Hardy was not physically threatened nor was she manhandled in any way;
2. Ms. Hardy was informed at the outset of the interview of her right to silence and that if she said anything, it could be used in court against her;
3. Ms. Hardy had been afforded the opportunity to speak to counsel and had done so at least as it relates to the charges for which she was arrested;
4. Ms. Hardy testified at trial that she did not believe the threats police made;
5. The interview was conducted by persons who clearly identified themselves as police;
6. The interview was conducted in a standard interview room;
7. The interview was not oppressive in duration; and
8. Ms. Hardy testified at trial that she eventually named the accused as the person from whom she received the cards because it was true and she was then aware of the source of the cards.

[39] Even if police conduct amounted to a violation of Ms. Hardy’s s. 10(b) rights, that violation does not undermine society’s expectation in the fairness of the administration of justice such that her evidence should be excluded in the trial of the defendant’s charges. Excluding her evidence in these circumstances would, in my view, be more likely to undermine public confidence in the administration of justice.

[40] Therefore, the application is dismissed.

Justice R. Raikes

Released: October 25, 2019

COURT FILE NO.: 2385/19

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JOHN GOODALL

REASONS FOR JUDGMENT

Raikes, J.

SCJ

Released: October 25, 2019