SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 18-13546
DATE: 2021/11/29
ONTARIO
BETWEEN:
Her Majesty the Queen
– and –
Steven Constantine Hanssen
Accused
Bailey Rudnick, for the Crown
Accused, Self-Represented
Meaghan McMahon, Amicus Curiae
HEARD: November 8, 2021
RULING ON OMNIBUS MOTIONS
ANNE London-weinstein j.
[1] Mr. Hanssen is charged with attempt to commit arson and mischief. He has chosen to be tried by a jury. Prior to the commencement of his trial, he brought an omnibus pretrial motion dealing with many issues. There were a number of remedies sought by Mr. Hanssen. I dismissed the majority of Mr. Hanssen’s pretrial motions summarily, finding that they were not material to the issues that the jury would have to deal with at trial.
[2] However, I dealt substantively with four of Mr. Hanssen’s pretrial motions. The first was his request to conduct legal research at the jail. When I began dealing with this case, this issue had already been largely resolved on consent. Mr. Hanssen was able to conduct legal research from the Ottawa Carleton Detention Centre. He also had access to the research provided by Ms. McMahon as amicus in this matter.
[3] The remaining issues included the Crown’s motion that Mr. Hanssen’s ability to call self defence under s. 34 of the Criminal Code, R.S.C. 1985, c. C-46, be denied due to there being no air of reality to the defence. Mr. Hanssen planned to argue that he was the victim of a government conspiracy to murder him, and that his alleged actions on the night in question were the result of his need to defend himself.
[4] I ruled that the issue of whether the proposed evidence passed the air of reality test would be dealt with at the end of the evidence in the trial. However, I indicated that I thought it unlikely that Mr. Hanssen’s alleged actions in trying to burn down a rooming house in self defence would be found to be objectively reasonable.
[5] Mr. Hanssen also sought to have amicus discharged due to his perception that her presence in this case would render his trial unfair. He argued that permitting amicus to act independently on behalf of a self-represented individual at trial violated his ss. 7 and 11(d)
Canadian Charter of Rights and Freedoms rights. He argued that the chain of financial disclosure from the amicus to the Canadian government by way of Legal Aid and the Ontario government created a motive and opportunity for the amicus to act independently on behalf of his defence in a manner favourable to the Government of Canada’s motive to engage in reprisal against the Applicant in relation to his protected disclosure.
[6] He further argued that this financial conflict of interest was exacerbated by the Crown’s role in selecting the counsel appointed to act as amicus curiae. This appointment would create a motive for the amicus to act on behalf of his defence in a manner favourable to the Crown’s position, violating his ss. 7 and 11(d)
Charter rights.
[7] I denied this motion to discharge amicus in separately released reasons.
[8] Finally, Mr. Hanssen also brought an application to ask a challenge for cause question based on the fact that he is on the autism spectrum. I granted that motion. Please see my separately released reasons for permitting Mr. Hanssen to challenge the jury for cause.
General Motions that were Dismissed:
[9] Mr. Hanssen filed a number of motions which were not relevant to the issues at trial. Some of the trial motions cited matters which were repetitive in nature. For example, the absence of an assistant crown attorney who was once involved in this trial was referenced on more than one motion. I have attempted to streamline my response to these motions to the extent possible, while also providing cogent reasons explaining why the motions were dismissed.
[10] The first motion asked me to take judicial notice of legislation and legislative fact, pursuant to s. 18 of the Canada Evidence Act, R.S.C. 1985, c. C-5. The grounds for the application were that Mr. Hanssen made a protected disclosure while employed at the Department of Agriculture. He indicated in his materials that he believed the Government of China and the Government of Canada were colluding to kill him and his roommates at 1152 Woodroffe Avenue.
[11] Mr. Hanssen cited China’s detention of Canadians Michael Spavor and Michael Kovrig on December 10, 2018 in retaliation for Canada arresting a Chinese business executive.
[12] He listed as material relevant changes:
In May 2019, he disavowed his persecutory beliefs in response to Dr. Gray’s reality testing;
In December 2019, the Crown Drew Young told the court that the witness and roommate Flavien Owolabi could not be located. Mr. Hanssen described Mr. Young as “missing since June 21.”
Since December of 2019 the Applicant asked the court at numerous judicial pretrials to find Mr. Owolabi, and the Crown and Ottawa Police Service were unable to do so.
Around December 2019, the coronavirus originated in the Wuhan District of China and spread around the globe.
Since December of 2018 there has been an exodus of Chinese nationals from Canada and a string of economic sanctions against Canada by China.
Since December 2018 there have been numerous news articles and cartoons suggesting China is trying to replace Canada’s criminal justice system with its own.
[13] Mr. Hanssen sought as relief:
That I take judicial notice of the Public Servants Disclosure Protection Act, S.C. 2005, c. 46.
That I take judicial notice that the intention of the Public Servants Disclosure Protection Act is to uphold the constitutional principle of good governance by preserving the Charter rights of public servants who disclose wrongdoing.
That I take judicial notice of a number of facts related to Canadian and Chinese relations and the origin of the coronavirus. That newspaper articles and cartoons suggest that China is trying to usurp Canada’s criminal justice system.
[14] I granted the Crown’s request to dismiss this motion summarily. The facts relating to Canadian and Chinese relations are irrelevant to the issues that the jury will decide at trial. In terms of judicial notice, I took no issue with the provisions of the Public Servants Disclosure Protection Act. If this statute becomes relevant in the trial, Mr. Hanssen can argue the purpose of the law before me. An application asking that I take judicial notice of a statute is not required. The origin of the coronavirus is irrelevant to the issues the jury will have to decide. The resignation of a Crown from the Crown’s office and difficulties in locating a witness do not breach Mr. Hanssen’s Charter rights.
[15] Mr. Hanssen then argued that he should be permitted to exercise peremptory challenges. He also argued that it would create the appearance of unfairness to have the trial judge pose the challenge for cause questions to the jury.
[16] Peremptory challenges have been abolished by Parliament and their abolition has been found to be constitutional. These challenges have been found to be purely procedural and their abolition applies retrospectively. The loss of the right to peremptory challenges applies to all jury selection processes commencing on or after September 19, 2019, the date the abolition came into force through Bill C-75: see R. v. Chouhan, 2021 SCC 26, 401 C.C.C. (3d) 1.
[17] Mr. Hanssen’s request to have peremptory challenges is therefore denied. In the circumstances of this case, while I do not agree that it creates an appearance of unfairness if the trial judge poses the challenge for cause question, I agreed that Mr. Hanssen be permitted to ask the question, along with the Crown attorney. Please see my separately released reasons on the challenge for cause issue. I am aware that the court in Chouhan recommended that the trial judge pose the question to the jury. My reasons for not asking the question relate to Mr. Hanssen’s concerns that his fair trial rights were being undermined. I exercised my discretion accordingly.
[18] Mr. Hanssen also sought an order granting him access to a cell phone in storage at the Ottawa Carleton Detention Centre. Mr. Hanssen argued that the phone contained information relating to a call he is alleged to have made at the time of his arrest. Mr. Hanssen wished to personally oversee the data’s removal from the phone.
[19] It was not possible, due to restrictions at the OCDC, to have Mr. Hanssen personally oversee the transfer of data from the phone to DVD. Amicus was willing to transfer the data for Mr. Hanssen, but he was insistent that he be present.
[20] I did not share Mr. Hanssen’s concern that data would be lost were he not present to personally oversee its transfer. Amicus in this case has been diligent in assisting him in organizing his pretrial motions and his defence materials. He sought an order instructing the OCDC to provide him with in-person access to a technical expert and his phone for a period sufficient for the expert to transfer the data from the phone to a DVD under his supervision.
[21] Mr. Hanssen also sought an order prohibiting the OCDC from conducting the transfer of data from his phone without him being present and preventing amicus from viewing the phone without his consent. I did not regard the loss of data as being an issue. The information transfer could have been easily carried out by amicus in a manner which did not breach OCDC regulations. I therefore dismissed this motion.
[22] Mr. Hanssen sought to have documents from a psychiatrist authenticated. The Crown agreed that the documents could be properly admitted without the need for such authentication.
[23] Mr. Hanssen also noted that the Ottawa Police Service had a file for him in the name of Steven E. Hanssen. His middle initial is C. He sought an order asking the OPS to disclose what the middle initial E stood for, when the Applicant’s middle initial was changed to E, and an order that the Attorney General of Ontario confirm his full name.
[24] The relief sought by Mr. Hanssen relating to his middle initial on police documents was not relevant to any issue at trial. The application for this relief was dismissed. I note the indictment was amended to properly reflect Mr. Hanssen’s correct middle initial, which is “C” for Constantine.
Mental Health Issues:
[25] Mr. Hanssen sought an order that s. 34 of the Criminal Code be read in a manner that would include permitting self defence in relation to mental health as guaranteed by the right to security of the person encompassed by s. 7 of the Charter.
[26] Secondly, he sought a declaration that allowing medical experts to determine if a persecutory belief is false is a violation of the right to be tried by an independent and impartial tribunal pursuant to section 11(d) of the Charter.
[27] Thirdly, he argued that allowing a s. 16 defence when the disorder of the mind is based on persecutory beliefs due to third parties results in the severe restrictions of indeterminate detention and mandatory treatment with mind altering drugs, which assist the third parties to harm him by violating his right to liberty and security of the person guaranteed by s. 7 of the Charter.
[28] The evidentiary basis for which Mr. Hanssen sought to rely on self defence involves a threat to murder him. I accept that he took that threat very seriously. However, it was his bodily integrity and safety that was threatened. The issue of protecting his mental health did not arise on these facts. Therefore, it is not necessary for me to determine the question he has posed regarding whether the provisions of s. 34 could ever be applied to justify protecting the safety of the mind. Given that the issue is not relevant to the issues at trial, I declined to conduct the analysis.
[29] The opinion of a medical expert has no impact on the right to be tried by an independent and impartial tribunal. I summarily dismissed this request for relief.
[30] Given that there was no s. 16 issues raised before trial and Mr. Hanssen has not been convicted, it is not appropriate for me to consider the issue he has raised regarding a possible infringement of s. 7 of the Charter by mandatory drug treatment and hospitalization for an extended period of time.
[31] I granted his request to listen to digital recordings of the proceedings. I permitted the use of a laptop to record the proceedings while they unfolded. I also offered to remain in the courtroom while he listened to music which he hoped would refresh his memories regarding events. Mr. Hanssen did not wish me to hear the lyrics before he himself heard them. I did not grant his motion seeking that I order the OCDC to allow him to listen to this music while in custody.
[32] Much of the other disclosure sought by Mr. Hanssen was provided by agreement of the Crown. The balance of the materials he sought were irrelevant. For example, he sought disclosure of an individual’s involvement with the Rideau Perley Veteran’s Hospital to support the inference that the administration of justice is protecting the Government of Canada by hiding evidence of reprisal that is relevant to the Applicant’s defence under s. 34(2)(5) of the Criminal Code. The disclosure sought is irrelevant to the issues at trial.
[33] He also sought an order declaring the use of domestic terrorism by all levels of government to be unconstitutional, an order to set aside funds to fulfill Parliament’s legal obligation under the Public Servants Disclosure Act, and an order permitting the mobilization of the armed forces to protect the court, witnesses, and himself from any and all threats of domestic terrorism. I summarily dismissed this motion as irrelevant to the issues which the jury will have to decide.
[34] He sought an order instructing police to identify the witnesses, to protect the witnesses, and to disclose any witnesses that are missing and how they came to be missing. This application was irrelevant to any material issue at trial and I dismissed this motion summarily.
[35] He also sought a declaration that the absence of the assistant Crown who was once dealing with his matter and has left the Crown’s office for reasons unrelated to this case violated his ss. 7 and 11(d)
Charter rights. I dismissed this application summarily, there being no breach of Mr. Hanssen’s Charter rights.
[36] The absence of a former roommate, Flavien Owolabi, also did not give rise to a breach of ss. 7 or 11(d) of the Charter. I dismissed this application summarily.
[37] During the trial, I also declined to issue a subpoena that would require former Member of Parliament Catherine McKenna to attend the trial to testify. I found that Ms. McKenna did not have relevant evidence to provide such that issuing a subpoena could be justified.
[38] Mr. Hanssen also sought to adjourn this matter due to his not having ongoing access to his disclosure materials. However, Mr. Hanssen did have access to a box of disclosure materials, which he brought to court with him. Amicus also had access to electronic disclosure. Mr. Hanssen was permitted to conduct his own legal research on and amicus was also funded for 50 hours of research.
[39] I exercised my discretion in not granting an adjournment so close to trial as I was satisfied that Mr. Hanssen had access to his disclosure for a sufficient period to permit him to make full answer and defence.
[40] I reject the Applicant’s suggestion that amicus had a role to play in the alleged disappearance of defence material.
[41] I further reject the Applicant’s suggestion that the Crown at the time undermined the Applicant’s application regarding s. 34 of the Criminal Code. From my perspective, Mr. Karimjee, Ms. Rudnick and Ms. McMahon went to extraordinary lengths to ensure that every fairness was provided to Mr. Hanssen in the conduct of the pretrial motions and later in the the trial itself. Mr. Karimjee undertook to call the OCDC and locate the missing materials. Mr. Hanssen, in my view, has had adequate access to the materials to prepare for trial. His request for an adjournment on the basis of not being able to access his disclosure for a period of time is denied.
[42] Mr. Hanssen also sought to lead evidence regarding his prior conviction for arson in relation to burning down the Wendy’s restaurant on Carling Avenue. He sought to call witnesses alleged to have observed him make sure that a person who was in the washroom at the time got out of the building safely.
[43] Mr. Hanssen argued that the evidence was relevant to the issue of his exercising due diligence and care to ensure the safety of person’s impacted by his actions, which supported the inference that his actions were reasonable pursuant to s. 34(1)(c) of the Criminal Code.
[44] The evidence of what happened at Wendy’s restaurant is not admissible for the purpose sought by Mr. Hanssen. His due diligence after setting fire to the Wendy’s restaurant does not advance the inference that his actions were reasonable at 1152 Woodroffe Avenue on November 21, 2018. His application to call that evidence is dismissed due to lack of relevance. The evidence is also highly prejudicial, although Mr. Hanssen is the one seeking to have it admitted in the trial.
[45] Mr. Hanssen is entitled to lead evidence of self defence, although I have warned him that his actions are likely to be found not reasonable, lacking an air of reality. Self- defence is unlikely to go to the jury.
[46] Mr. Hanssen also sought assistance in locating witnesses to a bomb threat and police officers who responded to this issue. This application was dismissed for a lack of relevance to the issues at trial. The list contained 40 names, including that of Prime Minister Justin Trudeau.
Anne London-Weinstein J.
Released: November 29, 2021
COURT FILE NO.: 18-13546
DATE: 2021/11/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Steven E. Hanssen Accused
ruling on OMNIBUS MoTIONS
Anne London-Weinstein J.
Released: November 29, 2021