Court File and Parties
COURT FILE NO.: CR-22-2170 DATE: 2024-10-01 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Ronald Paul Frlais
BEFORE: Justice R. Raikes
COUNSEL: Brian Higgins - Counsel, for the DPP Autumn Johnson - Counsel, for the Defendant
HEARD: September 17, 2024
ENDORSEMENT
[1]
Background
On November 30, 2023, the defendant was sentenced to two years less one day for possession for the purpose of trafficking contrary to s. 5(2) of the CDSA. A conditional sentence was imposed by which the defendant was permitted to serve the sentence in the community on strict house arrest terms. The conditions imposed included:
Keep the peace and be of good behaviour.
During his period of home confinement,
“Do not permit any persons whomsoever to visit your residence, except for the following: Janet Archer or your sister, or anyone named by your supervisor.”
2In early July 2024, Toronto Police Service notified an OPP Task Force that Akeem Richards-Crawford was a suspect in a car jacking incident that occurred at the end of June 2024. Physical and electronic surveillance showed that Mr. Richards-Crawford attended 197 Gordon St. in Sarnia “on several occasions”. Police believed that he was delivering drugs to the owner of that residence, Mr. Frlais.
3Mr. Frlais has a lengthy criminal record including many convictions for trafficking or possessing narcotics.
4On July 11, 2024, surveillance observed Mr. Richards-Crawford attend at 197 Gordon St. When he was leaving, he was carrying what looked to be a white envelope. Mr. Richards-Crawford was observed by surveillance attending 197 Gordon St. again on July 17, 2024.
5On July 18, 2024, the OPP in partnership with Toronto Police Service, executed a search warrant at 197 Gordon St., Sarnia. Mr. Frlais and Ms. Archer were located inside the residence. Four other individuals were located in the detached garage on the property.
6During the search, officers located suspected cocaine, suspected methamphetamine, tablets of suspected Percocet, five digital scales, packaging materials, and Canadian currency. Certificates of analysis filed confirm the presence of cocaine and methamphetamine. Some of the substances tested came back as sodium bicarbonate, a cutting agent sometimes used in the trafficking of cocaine.
7Photographs taken of the drugs and related drug trafficking paraphernalia found in the house and garage were filed on this breach application. They show illicit drugs were found in common areas in the house such as the kitchen and living room, and in the bedrooms. A brown leather bag containing a green metal ammunition box was found in bedroom B. That box contained Canadian currency, a Ziploc bag marked GMA or GML with suspected cocaine. A broken piece of Mr. Frlais’ health card was found in that room. Some of the suspected drugs were lying in the open in common rooms like the kitchen and living room.
8Mr. Frlais and others on the property were arrested. Upon search of Mr. Frlais’ person incident to arrest, police found three baggies containing cocaine in Mr. Frlais’ pants pocket.
9Mr. Frlais faces four charges arising from the search of his residence:
Possession for the purpose of trafficking cocaine contrary to section 5(2) of the CDSA.
Possession for the purpose of trafficking methamphetamine contrary to section 5(2) of the CDSA.
Possession for the purpose of trafficking an opioid contrary to s. 5(2) of the CDSA.
Possession of a Schedule 1 substance – cocaine, contrary to section 4(1) of the CDSA.
10The Crown alleges that Mr. Frlais is in breach of his conditional sentence by failing to keep the peace and be a good behaviour, and by permitting persons to visit his residence other than Ms. Archer and his sister. It has brought this application under s. 742.6 of the Code.
[11]
Jurisdiction to Hear Charter Challenge
At the first return date on August 16, 2024, defence counsel indicated that Mr. Frlais wished to bring an application to exclude the evidence obtained from the search under section 24(2) of the Charter on the basis that the search was illegal. He wished to challenge the validity of the search warrant issued. Defence counsel provided the decision of Durno J. in R. v. Palmer (2003), 2003 64245 (ON SC), 204 C.C.C. (3d) 256; 2003 64245 (ON SC) in support of her client’s right to do so.
12The Federal Crown asked for the opportunity to review applicable authorities. The matter was adjourned to allow counsel to provide the relevant case law and for the hearing of the breach application.
13When the matter came back before me on September 17, 2024, counsel for the Federal Crown submitted that there is no jurisdiction for this court to entertain a Charter challenge on a s. 742.6 application. He relies on the decision of Festeryga J. in R. v. Francis, 2003 O.J. No. 6186 (S.C.J.). In the alternative, he submits that the approach taken in R. v. Alaei-Khaneshir, [2011] O.J. No. 6506 (O.C.J.) is instructive: assume a breach and go through the s. 24(2) analysis.
14In Francis, the accused was serving a one-year conditional sentence. One of the conditions in the conditional sentence order required that he abstain from the purchase or possession or consumption of drugs except in accordance with the medical prescription. Three months after he was given the conditional sentence, the accused was arrested and found to have crack cocaine in his possession.
15At the breach hearing, the accused requested that the supervisor and any witness who signed a statement included in the report attend for cross-examination. He submitted that he needed this cross-examination to make full answer and defence. An affidavit was filed in which the affiant indicated that it would be necessary to cross-examine all witnesses present when the accused was detained and arrested, both with respect to the grounds of arrest and detention, the subsequent search of the person, the manner of execution of the search warrant and adequacy of the information for the search warrant.
16Justice Festeryga wrote at paras. 10-14:
The procedure under s. 742.6 of the Criminal Code cannot be categorized as being a criminal proceeding by its very nature, or as having true penal consequences such as to fall within s. 11 of the Charter. Here the accused was convicted and sentenced to imprisonment to be served in the community. I am to determine whether changed circumstances should lead to a variation in the manner in which that imprisonment should be served.
Under s. 742.6(9), I must be satisfied on the balance of probabilities that the offender has a reasonable excuse for the possession of the alleged substance.
The section sets out a simple and expeditious procedure for dealing with violations of Justice Cavarzan’s order (See R. v. Whitty (1999), 1999 18919 (NL CA), 135 C.C.C. (3d) 77 (Nfld. C.A.), and R. v. Wismayer (1997), 1997 3294 (ON CA), 33 O.R. (3d) 225 (Ont. C.A.)).
It has been held that prescribing the standard of proof on the balance of probabilities and imposing an onus on the accused to show reasonable excuse does not violate the right to be presumed innocent under the Charter (See R. v. Casey (1999), 2000 5626 (ON CA), 141 C.C.C. (3d) 506 (Ont. C.A.)).
Justice Osborne, as he then was, of our Court of Appeal in the Casey case, seems to say that when our court sits on these 742.6 matters, we are analogous to the parole board making administrative decisions. If this is so, then in this matter, I am not a court of competent jurisdiction as required for issues to be raised under the Charter of Rights and Freedoms, therefore I refuse to apply the Charter and I refuse to exclude evidence under s. 24 of the Charter.
17In Palmer, also decided in 2003, the accused was serving a conditional sentence when he was charged with several new criminal charges. It was alleged that he breached the term of his conditional sentence to keep the peace and be of good behaviour. At the breach hearing, he sought to exclude the evidence obtained from a search relying on sections 8, 9 and 24(2) of the Charter. The Federal Crown raised a preliminary objection: that a judge presiding at a conditional sentence breach hearing is not “a court of competent jurisdiction” and therefore had no jurisdiction to exclude evidence pursuant to s. 24(2).
18In support of the alleged breach, the Crown filed a statement from a constable that he observed the offender in a secluded area conducting what appeared to be a hand-to-hand drug transaction. The offender and the alleged purchaser were arrested. The purchaser was found in possession of cocaine. Police searched the accused’s car and located more cocaine. He was charged with, inter alia, trafficking in a controlled substance and possession of cocaine.
19After reviewing the case law as to what constitutes a “court of competent jurisdiction” including the Supreme Court of Canada’s decision in National Parole Board et al v. Mooring (1996), 1996 254 (SCC), 104 C.C.C (3d) 97, Justice Durno wrote at para. 35:
[35] There are significant differences between the powers of the judge and procedures in a breach hearing, and the bases upon which the parole board was found not to be a “court of competent jurisdiction”. No doubt the rules of evidence are somewhat relaxed on a sentencing hearing (R. v. Gardiner (1982), 1982 30 (SCC), 68 C.C.C. (2d) 477 (S.C.C.)), the presumption of innocence does not apply, and the standard of proof for the breach is the balance of probabilities. However, the hearing is adversarial, with counsel having the right to call evidence, cross-examine witnesses who have filed signed reports with leave, and make submissions. Since there is no requirement that all witnesses file signed statements, the legislation contemplates viva voce evidence in-chief from Crown witnesses in some circumstances. The court fulfils a judicial function with legally trained judges presiding. The court acts upon evidence as opposed to information. While risk to society is a factor on a breach hearing, it is not the only consideration. A judge presiding on a breach hearing has to consider the full range of sentencing principles and purposes in whole, or in part, the conditional sentence aspect of the balance of the sentence, or varying the terms.
20At para. 36, Justice Durno disagreed with Francis that the only issue to be decided was whether a breach had been established. Justice Durno noted that once the breach is established, disposition must also be determined.
21At paras. 38 and 39, he concluded:
[38] While there is no doubt Parliament intended to provide for “relatively simple and expeditious procedure for dealing with breach allegations” (R. v. Wismayer (1997), 1997 3294 (ON CA), 115 C.C.C. (3d) 18 (Ont. C.A.)), I am persuaded it must be presumed Parliament has intended the court to exercise powers under s. 24(2) of the Charter at breach hearings. The hearing is presided over by a legally trained judge who acts upon evidence. While the evidence may be in the form of the supervisor’s report and signed witness statements, it may be viva voce testimony, or those of other witnesses. With the requirement of notice of Charter applications, and leave of the court to have witnesses produced for cross-examination, the court has the procedures and processes capable of fairly and justly resolving incidental Charter issues.
[39] I am also persuaded that a judge hearing a breach allegation is involved in a function that engages Charter issues. While not every breach allegation will involve s. 24(2) Charter issues, some will. For example, if there is no condition in the conditional sentence order requiring an offender to permit police entry into his home, and the police walk through an open front door and find him drinking a beer in violation of a term of the order, it would be fundamentally unfair to preclude the offender from raising the unreasonable search issue. Other examples would be where the evidence of the breach was a statement obtained in violation of the right to counsel after detention, or upon an unlawful detention. I am not persuaded Parliament could have intended that persons serving a conditional sentence had no right to raise Charter violations. The knowledge in police officers that a person serving a conditional sentence has no avenue to challenge breaches of Charter rights could invite violations of those rights.
22Justice Durno recognized at para. 41 the practical implications of his finding that a judge hearing a breach allegation is a court of competent jurisdiction, especially for an already overloaded criminal justice system. There is the potential for two Charter applications – one in the breach hearing and one in respect of any new charges laid. Nevertheless, he concluded that those practical considerations should not trump Charter rights and the ability to seek exclusion of evidence for those serving conditional sentences.
23At para. 43, Justice Durno wrote:
[43] … Second, where a Charter breach is alleged, a notice should be filed setting out the bases of the alleged breach. Counsel who file “boiler plate” notices, i.e. the applicant’s right to retain and instruct counsel was infringed, do so at their peril, given the requirement for leave to cross-examine the witnesses. The screening function for trial judges in R. v. Kutynec (1992), 1992 12755 (ON CA), 70 C.C.C. (3d) 289 (Ont. C.A.), is apposite [301]:
In some cases, when the defendant indicates, prior to the calling of evidence, that it intends to advance a Charter application to exclude evidence, the trial judge may call upon the defence to summarize the evidence that it anticipates it would elicit on the application. This kind of procedure is well-known to the criminal process: see R. v. Sproule (1975), 1975 1354 (ON CA), 26 C.C.C. (2d) 92…(Ont. C.A.); R. v. Dietrich (1970), 1970 377 (ON CA), 1 C.C.C. (2d) 49 at p. 62…leave to appeal refused [1970] S.C.R. Xi. If the defence is able to summarize the anticipated evidentiary basis for its claim, and if that evidence reveals no basis upon which the evidence could be excluded, then the trial judge need not enter into an evidentiary inquiry. In other words, if the facts as alleged by the defence in its summary provide no basis for a finding of a Charter infringement, or a finding that the evidence in question was obtained in a manner which infringed the Charter, or a finding that the test for exclusion set out in s. 24(2) was met, then the trial judge should dismiss the motion without hearing evidence.
There is nothing unique in this position. Where an accused bears the burden of proving the admissibility of evidence, it is incumbent on counsel to put forward a factual and legal basis on which the evidence could be admitted. Counsel is not entitled to proceed immediately to a voir dire on that issue.
24I agree with Justice Durno that this court, sitting on a breach hearing, is a “court of competent jurisdiction” for the purpose of hearing and determining Charter applications to exclude evidence under s. 24(2) for the breach hearing. I agree with his analysis and the rationale for that conclusion. It follows that I respectfully disagree with Justice Festeryga’s decision to the contrary.
[25]
Analysis
I pause to note that the surveillance is independent of the search warrant and consequent search. Police surveillance saw Mr. Richards-Crawford attend at Mr. Frlais’ residence before the search. He did so twice. The notes provided do not indicate whether he went inside the house. They do not indicate whether Mr. Frlais was observed interacting with him. No evidence is filed to show that Mr. Frlais and Mr. Richards-Crawford communicated in advance to coordinate or arrange for his attendance. Such evidence might make the Charter application redundant. In the absence of such evidence, I cannot discern whether Mr. Frlais breached the no visitor condition by Mr. Richards-Crawford’s attendances at the home.
26Mr. Frlais is in custody. It is unclear to me whether he is in custody only on account of the alleged breach or because of the pending criminal charges from the July 18, 2024 search of his home.
27There is no written application challenging the validity of the warrant or the admissibility of the evidence obtained from the search conducted. I have only counsel’s advice that she is instructed to do so.
28At this point, neither the warrant nor the Information to Obtain have been provided to defence counsel. She advises only that her client will say that Mr. Richards-Crawford attended Mr. Frlais’ property to inquire about the purchase of a car. Based on that information, she posits that it is likely that the information to obtain contains incorrect information. At this stage, without access to the ITO (as redacted), she has no information that the warrant should not have issued.
29I am advised by the Federal Crown that the ITO was sworn in Toronto and the warrant was issued there. According to him, there is a process to be followed whereby orders must be obtained for the documents to be transferred to Sarnia, a meeting will take place with the affiant officer, redactions will likely be necessary to protect confidential informant’s identity, and the redacted ITO will then be provided. That process will take weeks to complete.
30Mr. Higgins points to Alaei-Khaneshir, a decision of Chapin J. of the Ontario Court of Justice for an approach to address the Charter issue expeditiously.
31In Alaei-Khaneshir, the accused pleaded guilty to possession of cocaine and ketamine and was sentenced to a conditional sentence of six months. One of the conditions was that he was to abstain from the purchase, possession, or consumption of controlled drugs except as authorized by law. The Crown alleged that the accused breached that condition and filed the notes of three police officers who took part in the execution of a CDSA search warrant. During that search, police located a large quantity of drugs, cash, and ammunition. The accused brought an application pursuant to sections 8 and 24(2) of the Charter to exclude the evidence on the basis that the ITO provided did not disclose reasonable and probable grounds to believe that the things to be searched for would be found at the time of the search. Unlike the case before me, the ITO had been provided in redacted form to protect the identity of a CI.
32Defence counsel argued that the information police were relying upon was stale. It was simply too dated to provide sufficient reasonable and probable grounds to believe that there would be evidence on that date.
33Crown counsel submitted that the approach should be different than a trial where guilt or innocence is the issue. Instead, the issue was whether the administration of justice was functioning properly – whether the applicant re-offended while serving his sentence. He submitted that the proper approach was to assume that there was a breach and go through the analysis pursuant to section 24(2) of the Charter.
34Justice Chapin agreed with that approach given the very limited record before him. He had only the notes of the officers and the redacted ITO. He did the s. 24(2) analysis and concluded that the application failed, the evidence was admissible on the breach hearing.
35Without endorsing or rejecting the expeditious approach in Alaei-Khaneshir, I have less evidence than that available to Chapin J. Like the defendant and his counsel, I have not seen the redacted ITO. I have some officer notes and photographs filed. I cannot assess the seriousness of the breach in a vacuum.
[36]
Disposition
I am mindful that the proceeding under s. 742.6 is intended to be summary and expeditious as noted above. As Justice Durno found, that cannot trump Charter rights. Timely disclosure of the redacted ITO is fundamental to those rights. The defendant cannot be effectively and functionally precluded from a Charter challenge by delay in providing minimal disclosure for the search – the warrant and redacted ITO.
37It seems to me that fairness dictates that the warrant and redacted ITO be provided to defence counsel as soon as practicable. If the defendant still wishes to proceed with a Charter challenge to the validity of the warrant, defence counsel must then promptly file a written application summarizing the basis for the Charter challenge. The screening protocol contemplated by Kutynec that is referred to by Durno J. in Palmer will be applied. If the application passes that very low bar, the Charter challenge will proceed in an expedited, summary manner consistent with nature of a s. 742.6 hearing and protection of the defendant’s Charter rights.
38Accordingly, the Federal Crown shall provide to defence counsel the redacted ITO as soon as practicable. Defence counsel shall then promptly file a written application summarizing the basis for the Charter challenge. The screening protocol contemplated by Kutynec will be applied. If the application passes that very low bar, the Charter challenge will proceed in an expedited, summary manner. The breach application is adjourned to October 24th at 9:00 AM.
Justice R. Raikes
Date: October 1, 2024