COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnson, 2013 ONCA 177

DATE: 20130325

DOCKET: C52362 and C52826

Doherty and Epstein JJ.A. and Cavarzan J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Patrick Johnson

Appellant

Patrick Johnson, acting in person on the conviction
    appeal

Russell Silverstein, as duty counsel on the conviction
    appeal

Chris Dwornikiewicz, for the respondent on the
    conviction appeal

Susan L. Pennypacker, for the appellant on the sentence
    appeal

Holly Loubert, for the respondent on the sentence appeal

Heard: October 23, 2012 (conviction appeal) and October 25, 2012
    (sentence appeal)

On appeal from the conviction entered by Justice Frank N.
    Marrocco of the Superior Court of Justice on February 2, 2010, and from the
    sentence imposed on June 1, 2010, with reasons reported at 2010 ONSC 1490 and
    2010 ONSC 3213.

Epstein J.A.:

[1]

Patrick Johnson was a passenger in a Chevrolet Cobalt that was stopped
    by police on a summer day in the Regent Park area of Toronto.  The police
    stopped the car as a result of some unusual driving activity.  Johnson was
    sitting alone in the backseat.  There was another passenger in the front.

[2]

One officer, Constable MacArthur, was preparing tickets for various
    violations of the
Highway Traffic Act
, R.S.O. 1990, c. H.8 (the
HTA
).
    In the meantime, another officer, Constable Dury, directed Johnson to put his
    hands on the back of the seat in front of him.  Dury then asked Johnson for his
    name and date of birth.  The officer requested this information in order to run
    Johnsons name through the Canadian Police Information Centre (the CPIC).  The
    check yielded nothing of note.

[3]

While MacArthur was finalizing the
HTA
documentation, Dury
    noticed the butt end of a handgun protruding from a knapsack that was on the
    seat beside Johnson.  Dury retrieved the knapsack and discovered a loaded semi-automatic
    handgun tucked inside.  Johnson was arrested for weapons offences and was
    advised of his rights to counsel.

[4]

Johnson brought a
Charter
application at the outset of his
    trial, alleging several violations of various constitutionally-protected
    rights.  The trial judge dismissed Johnsons
Charter
arguments and admitted
    the gun into evidence.  Johnson conceded that, with the admission of the gun,
    the Crown had made out its case against him on all charges and offered no
    defence.  Johnson was therefore convicted of possessing a loaded prohibited or
    restricted firearm, possession of a loaded firearm knowing he was not licensed,
    three counts of possession of a firearm while prohibited by three separate s.
    109 orders, and breach of a probation order term prohibiting him from
    possessing a firearm. He received a total sentence of nine years in prison.

[5]

Johnson appeals from conviction on the basis that his rights under ss.
    8, 9 and 10(b) of the
Charter of Rights and Freedoms
were breached and
    that the gun should have been excluded from evidence.  Johnsons sentence
    appeal focuses on his argument that the trial judge failed to properly consider
    Johnsons Aboriginal status in determining his sentence.

[6]

I would dismiss the conviction appeal.  There was no violation of s. 9
    or s. 10(b). Even if Johnson`s s. 8 rights were breached, in my view, the gun
    was nevertheless properly admitted.

[7]

With respect to the sentence appeal, I would give Johnson leave to
    appeal his sentence but dismiss the sentence appeal.

I.        The Facts

[8]

On July 24, 2008, Toronto Police Constables Dury, MacArthur, Ponzi and Sommer,
    and Sergeant Spanton were on duty in Regent Park. They were accompanied by a
    Toronto Sun newspaper reporter who was interested in the Toronto Anti-violence
    Initiative Strategy (TAVIS) and its effect in Regent Park. Constables Dury
    and MacArthur had been assigned to TAVIS policing that summer. Their
    responsibility was to provide high-visibility uniform policing in an effort to
    improve the quality of life for the residents of Regent Park and to encourage
    communication between members of the community and the police.

[9]

MacArthur and Dury, in a marked police car driven by MacArthur, drove to
    605 Whiteside Pl., located in South Regent Park. The others, including the
    reporter, followed in separate cars. The reporter was in Sergeant Spantons
    car. The driveway leading into 605 Whiteside Pl. is U-shaped. It opens onto
    Dundas Street East at two places.

[10]

MacArthur
    testified that he saw a Chevrolet Cobalt travelling eastbound on Dundas Street.
    For no obvious reason, the car stopped for about five seconds at the
    western-most entrance to the driveway. The car was stopped partially in a
    traffic lane and partially on the boulevard.  A car behind the Cobalt was
    forced to drive around it and enter 605 Whiteside Pl. from the more easterly
    driveway entrance. MacArthur testified that when he saw this, he made a
    U-turn.  As he did this, the Cobalt turned into the driveway at 605 Whiteside
    Pl.

[11]

Dury
    did not notice anything unusual about the way the Cobalt was being driven.  However,
    he did testify that he saw the driver of the car make a sharp turn into the
    driveway at 605 Whiteside Pl. with the result that the rear of the vehicle was
    blocking the driveway. As the Cobalt was slowing to a stop, Dury heard the passenger
    in the backseat of the car yell "Southside" (which Dury understood to
    refer to the south side of Regent Park, south of Dundas). MacArthur testified
    that he told Dury that he was going to stop the Cobalt, but Dury did not recall
    this comment. Rather, Dury testified that he said to MacArthur something to the
    effect of "let's talk to these fellows".

[12]

The
    officers pulled alongside the Cobalt, which was moving slowly at the bottom of
    the U in the driveway, and asked the driver to stop. The officers did not
    activate their lights or siren. Dury did not command the driver to stop. He
    said something to the effect of "hello would you mind stopping the
    car".  The police pulled up beside the Cobalt after it came to a halt.

[13]

Both
    MacArthur and Dury got out of the police car and Dury approached the driver, Bradley
    Jarvis.  When asked for his driver's licence, Jarvis replied that he held a G1
    licence but he did not have it with him. The person in the passenger seat
    beside him was also not a fully licensed driver.  MacArthur was behind Dury
    while this conversation took place. MacArthur was junior to Dury, but had more
    recent experience with motor vehicle work and therefore took over the traffic
    investigation at this point.

[14]

Soon
    after MacArthur and Dury pulled over the vehicle, Sergeant Spanton arrived with
    the reporter.

[15]

Dury
    was waiting for MacArthur to write up the traffic tickets when he started
    talking to the passenger in the back seat of the Cobalt. The conversation was
    cordial, polite and respectful on both sides.

[16]

At
    the outset of this exchange, Dury directed Johnson to keep his hands on the
    back of the driver seat where he could see them. Dury testified that he was
    curious about the reason Johnson had yelled "Southside" but did not
    ask him about it. MacArthur performed a CPIC search on Jarvis. The search
    confirmed that Jarvis held a G1 licence. MacArthur asked Jarvis to step away
    from the car and told him that he was going to issue three provincial offence
    notices to him for violations of the
HTA
 driver unaccompanied,
    failure to surrender a licence and having no current tag on his licence plate.

[17]

At
    Durys request, the passenger identified himself as Patrick Johnson and
    provided Dury with his date of birth. Dury asked Johnson where he lived, and Johnson
    gave an address in Barrie. Johnson advised that, while he had no
    identification, he did have a puffer with his name on it. However, he could not
    find the puffer. Dury told him not to worry about it.  Dury gave Johnson a
    contact card for the TAVIS project.

[18]

Dury
    gave MacArthur Johnsons name and date of birth to enable a CPIC check.  The
    results were inconsequential.

[19]

In
    the meantime, Constables Sommer and Ponzi arrived.  The two additional officers
    and Dury stood talking among themselves outside the Cobalt in which Johnson
    remained, as directed, with his hands on the back of seat in front of him.
    Dury then noticed the end of a gun sticking out from a Spiderman backpack on
    the seat next to Johnson.  Dury reached into the car and took the bag. In it he
    found some items belonging to Johnson including his inhaler with his name and
    date of birth on it, and a loaded semi-automatic handgun. Dury arrested Johnson
    and gave him his rights to counsel.

II.       Judgment Below

[20]

Johnson
    challenged the admissibility of the gun based on arguments that his rights
    under ss. 8, 9 and 10(b) had been breached. He proceeded on the basis of the
    evidence given at the preliminary inquiry, the transcript of which was filed.
    Johnson had not testified at his preliminary inquiry.

[21]

The
    trial judge dismissed the application.

He
    held that Johnson had not been detained and accordingly his
Charter
rights had not been violated.

[22]

The trial judge found that the
    interaction between the police and Johnson was cordial.
Requiring
    Johnson to put his hands on the top of the car seat in front of him during this
    period of time was a routine act to protect the safety of officers.
A reasonable person informed of all the circumstances
    would understand that the officer was taking a safety precaution in an area of
    the city that, according to the evidence, regularly experienced a spike in
    violence in the summer months. Further, the extended amount of time Johnson was
    required to assume the position directed by Dury was due to the time it took
    for the three
HTA
infractions to
    be documented.

[23]

The
    trial judge found that the car in which Johnson was a passenger was lawfully
    stopped by police.  The police had two sets of interests in stopping the car:
    the first being the
HTA
offences, and the second being Durys curiosity
    as to why Johnson had yelled out "Southside" to people at the
    playground at 605 Whiteside Pl. Relying on
Brown v. Durham (Regional
    Municipality) Police Force
(1998), 43 O.R. (3d) 223 (C.A.), the trial
    judge held that a lawful police interest beyond highway safety concerns did not
    taint the lawfulness of the stop.

[24]

The
    trial judge held that while the CPIC check of Johnson was an unlawful search, the
    search did not turn the delay into a detention.  Moreover, the search did not lead
    to the finding of the handgun.  Finally, the search did not result in any
    additional police interest in Johnson.

[25]

The
    trial judge found that the interaction between Dury and Johnson amounted to a
    brief conversation while Johnson was sitting in the car waiting for the
HTA
paperwork to be completed.  He reasoned that while Johnsons movements were temporarily
    restricted by the officer, the police are permitted to detain someone briefly to
    allow them to make a quick assessment of the situation before it can be said
    that a person is detained within the meaning of s. 9 of the
Charter
:
    see
R. v. Suberu
, 2009 SCC 33, [2009] 2 S.C.R. 460.

[26]

According
    to the trial judge, Johnson did not establish that he was detained.

[27]

While
    the trial judge found that Johnson was not detained, he did, as previously
    noted, find that the police questioning of Johnson was an unlawful search in
    breach of his s. 8 rights.  The trial judge therefore proceeded to consider s.
    24(2).  In concluding that the evidence should not be excluded, the trial judge
    noted that:

·

The conduct alleged to amount to a
Charter
infringement
     the questioning  did not lead to the discovery of the gun.

·

If Johnson was detained, it was pursuant to a lawful
HTA
investigation.

·

The police treated Johnson with respect and at all times were
    acting in good faith.

·

The handgun was discovered in plain view.

·

There was a low expectation of privacy given Johnson was a passenger
    in a car he did not own, and the gun was found in a knapsack he did not own.

·

The delay was brief and in daylight.  There were no racial
    factors in play.

·

The presence of the reporter and his taking pictures of Johnson
    at the scene did heighten the impact of the detention.

·

The gun was highly reliable evidence critical to the Crowns
    case.

[28]

The
    trial judge, relying on the guidance provided by
R. v. Grant
, 2009 SCC
    32, [2009] 2 S.C.R. 353, and
R. v. Harrison
, 2009 SCC 34,
[2009] 2 S.C.R. 494,
concluded
    that even if Johnson had been detained, the evidence should not be excluded. He
    reasoned that although the impact on Johnsons
Charter
-protected
    interests pointed toward exclusion, the nature of the state conduct and
    society's interest in an adjudication on the merits militated strongly in favour
    of admitting the evidence. The trial judge further concluded that the exclusion
    of reliable evidence crucial to the Crowns case in circumstances where the
    police acted appropriately, viewed reasonably and from a long-term perspective,
    would have a negative effect on the repute of the administration of justice:
    see
R. v. Blake
, 2010 ONCA 1, 257 O.A.C. 346, at para. 31.

[29]

The
    trial judge therefore admitted the gun into evidence.  Johnson conceded that
    the admission of the gun meant that the Crown had made out the elements of the
    offence.  Johnson was therefore found guilty on all counts.

III.      Analysis

(a)

Was Johnson detained when asked to put his hands on the back of the seat
    in front of him?

[30]

A
    person can be restrained physically or psychologically.  Either amounts to
    detention: see
R. v. Harris
, 2007 ONCA 574, 87 O.R. (3d) 214, at para.
    17.  If a person obeys a police command on the basis that he or she believes
    there is no alternative, that person is detained for the purposes of ss. 9 and
    10 of the
Charter
:  see
Grant
, at para. 25;
R. v. Therens
,
    [1985] 1 S.C.R. 613, at p. 505.

[31]

The
    controlling authority on the issue of whether an individual is detained for s.
    9 purposes can be found in the Supreme Courts trilogy in
Grant
,
Harrison
and
Suberu
.

[32]

Grant
involved the investigative detention of a pedestrian told to keep his hands in
    front of him.  The Supreme Court held, at para. 51, that the order was in
    itself inconclusive. The court considered it necessary to have regard to the
    entire context of what happened, because asking someone to put his hands in
    front of him might be insufficient to indicate detention, on the ground that
    it was simply a precautionary directive (at para. 48). The court noted that
    that there are real risks involved in street policing against which officers
    are entitled to protect themselves.  Nonetheless, having regard to the
    circumstances, it held that [t]he sustained and restrictive tenor of the
    conduct after the direction to Mr. Grant to keep his hands in front of him
    reasonably supports the conclusion that the officers were putting him under
    their control and depriving him of his choice as to how to respond (at para.
    51).

[33]

The
    court took the opportunity in
Grant
, at para. 44, to provide a
    non-exclusive list of factors that may be used in determining whether an
    individual was psychologically detained, as follows:

a)

The circumstances
    giving rise to the encounter as would reasonably be perceived by the
    individual: whether the police were providing general assistance; maintaining
    general order; making general inquiries regarding a particular occurrence; or,
    singling out the individual for focused investigation.

b)

The nature of the
    police conduct, including the language used; the use of physical contact; the
    place where the interaction occurred; the presence of others; and the duration
    of the encounter.

c)

The particular
    characteristics or circumstances of the individual where relevant, including
    age; physical stature; minority status; level of sophistication.

[34]

The
    interesting issue of whether passengers in cars that have been stopped by the
    police are detained has been considered in a number of cases.  In
Harris
,
    at paras. 18-19, Doherty J.A. left open the possibility that upon an
HTA
stop, the driver
and
the passengers are immediately and automatically detained. Some courts have been
    of the same view (see
e.g.

R. v. Pinto
, [2003] O.T.C. 1095
    (S.C.), at para. 45;
R. v. J.R.M.
, [2005] O.J. No. 4708 (S.C.), at
    para. 17), while others have held that something more was necessary before it
    could be said that a passenger in such circumstances was detained (see
e.g.

R. v. Frank
, 2012 ONSC 6274, at para. 46;
R. v. Bradley
, 2008
    NSCA 57, 266 N.S.R. (2d) 126, at para. 16). In
Harris
, Doherty J.A. declined to decide this issue, instead
    resolving the case based on the general fact-specific approach to determining
    detention.

[35]

Here,
    the trial judge proceeded on the basis that passengers are not automatically
    detained upon an
HTA
stop.  In considering the issue of detention, the
    trial judge focussed on Durys direction to Johnson to keep his hands on the back
    of the seat in front of him.  As in
Harris
, given my conclusion on
    this issue, I find it unnecessary to decide the broader question of whether
    passengers are automatically detained upon an
HTA
stop.

[36]

At
    para. 23, the trial judge stated:

Constable Dury asked Mr. Johnson to keep his hands on the back
    of the driver's seat so that he could see them. This type of routine concern
    for police officer safety, objectively viewed, does not result in a finding of
    detention. A reasonable person informed of all the circumstances would
    understand that the officer is taking a routine safety precaution in an area of
    the city that, according to the evidence in this case, historically saw a spike
    in violence in the summer months.

[37]

It
    is clear that determining whether an individual is psychologically detained
    must be based on a broad consideration of many circumstances relevant to the
    interaction between the police and the individual who is asserting that he was
    detained. The difficulty I have with the trial judges analysis is that his
    consideration of the issue of detention was limited: he focussed almost
    exclusively on the police perspective of the consequences of Durys direction
    to Johnson.

[38]

According
    to
Grant

the perspective must be broader, taking into account
    factors including the circumstances giving rise to the encounter with the
    police, the conduct of the police and the circumstances and conduct of the
    individual claiming to be detained.

[39]

According to
Grant
at para. 51, asking a person to keep
    his hands in front of him was, in itself inconclusive.  But, here, other factors
    were in play.  Significantly, Johnson was not merely asked to keep his hands
    visible; he was directed to put his hands on the seat in front him  in a fixed
    place.  It was clear that Johnson could not obey Durys command to keep his
    hands on the seat and at the same time, open the car door, get out and walk
    away.  Johnson was effectively instructed to stay put.

[40]

The
    facts of this case are similar to those in
Harris
. In that case,
    Doherty J.A. held that

a passenger in a car stopped for
HTA

reasons
    was under psychological constraint, at the very least from the point in time
    when the demand was made that he keep his hands in plain view, if not when the
    driver of the car was told to stop.

[41]

I
    conclude therefore that, viewed objectively, Johnson would reasonably believe
    that he was not free to move his hands off the seat in front of him.  Johnson would
    reasonably believe he was not free to get out of the car and walk away.  Indeed,
    Johnson would almost undoubtedly have aroused the police officers suspicions
    had he tried to leave, since that would necessarily involve disobeying Durys
    direction to keep his hands on the seat.  It follows that Johnson was under
    psychological restraint at least from the point when Dury ordered him to keep
    his hands on the car seat in front of him.

(b)

Was the detention arbitrary?  Was there a breach of Johnsons s. 10(b)
    rights?

[42]

I
    have reviewed the able submissions of duty counsel.  I agree with the trial
    judge that there was no breach of Johnsons s. 9 and s. 10(b) rights. Officer
    safety is a valid reason to take reasonable steps to control the vehicle. It is
    well-established that lawful detention arising out of an
HTA
matter
    does not engage a persons rights set out in s. 10(b) of the
Charter
: see
Harris
, at para. 48
.

(c)

Were Johnsons s. 8 Charter rights violated?

[43]

Johnson was detained at the time Dury, without lawful authority, asked
    him for information necessary to conduct a CPIC check.  Before this court the
    request was treated as a violation of Johnsons rights under s. 8 of the
Charter
.
As a result, for
the purposes of this appeal, I
    will proceed on the basis that Johnsons s. 8 rights were breached: see
Harris
,
at para.
    34.

(d)

Should the gun have been excluded under s. 24(2)?

[44]

Although the trial judge found no
Charter
breach, he
    still conducted a s. 24(2) analysis.  As I am proceeding on the basis of a
    breach of s. 8, it is appropriate that I conduct a new assessment of the
    admissibility of the gun under s. 24(2) of the
Charter
:  see
Grant
,
    at paras. 265-66.

[45]

Before a s. 24(2) analysis is necessary, the court must consider
    whether the
evidence
was obtained in a manner that violated Johnsons
Charter
rights: see
Grant
, at para. 171. However, as previously noted, it is not the
    improperly seized information that Johnson alleges the trial judge erred in
    admitting - it is the gun. In this case, the causal link between the
Charter
breach and discovery of the gun is tenuous. However, this lack of a causal link
    is not dispositive of the obtained in the manner requirement.

[46]

In
R. v. Strachan
, [1988] 2 S.C.R. 980, at para. 40, the
    Supreme Court cautioned that requiring a causal link leads to a narrow view of
    the relationship between a
Charter
violation and the discovery of
    evidence. Consequently, in
R. v. Goldhart
, [1996] 2 S.C.R. 463, at
    para. 40, the Supreme Court held that a temporal connection [between the
    breach and the discovery of evidence] may be so strong that the
Charter
breach is an integral part of a single transaction. In that case, a causal
    connection that is weak or even absent will be of no importance.

[47]

The court gave the example of
R. v. Grant
, [1993] 3
    S.C.R. 223. In that case, the police conducted unconstitutional warrantless
    perimeter searches, and included information derived from those searches in a
    warrant application. Even though the warrant could have been issued without the
    illegally-obtained information, the authorized searches were tainted by illegal
    warrantless searches which formed an integral part of a single investigatory
    transaction:
Goldhart
, at para. 39.

[48]

In my view, in this case, it is not realistic to view the search
    as severable from the discovery of the gun. The temporal connection between the
Charter
breach and the discovery of the evidence was sufficiently
    strong so as to form a single investigatory transaction. Therefore,
    notwithstanding the tenuous nature of any causal connection, I would undertake
    the full 24(2) analysis so that the impact of the
Charter
breach on
    the repute of the administration of justice can be properly considered.

[49]

It
    therefore falls on this court to determine whether the evidence should be
    excluded.  In
Grant
, at para. 71, the Supreme Court affirmed that the
    ultimate consideration under s. 24(2) is whether, considering all the
    circumstances, admission of the evidence would bring the administration of
    justice into disrepute. In coming to this determination, the Supreme Court
    held that a court must balance three factors: 1) the seriousness of the
Charter
-infringing
    state conduct, 2) the impact of the breach on the Charter-protected interests
    of the accused, and 3) societys interest in the adjudication of the case on
    its merits.

[50]

Concerning
    the state conduct, Durys decision to run a CPIC check out of curiosity does
    demonstrate a certain casual attitude towards
Charter
values and tends
    to make the violation more serious.  However, examining the entire interaction
    leads me to the conclusion that the police misconduct in this case is closer to
    a good faith error than a blatant disregard for constitutional rights. The unlawful
    search was a minor part of what was, for the most part, a valid
HTA
investigation. Dury asked for Johnsons name in the course of a polite
    conversation while securing the car, with no evidence of any intention to
    disregard Johnsons rights.

[51]

On
    the whole, a consideration of the first
Grant
factor favours admission
    of the evidence.

[52]

On
    the second
Grant
factor, the impact of the breach in this case was not
    trivial and tends toward exclusion of the evidence.  By asking Johnson his name
    and running a CPIC check, the police conducted an invasive unwarranted search
    into private personal information: see
Harris
, at para. 63. However,
    the handgun was discovered in plain view by police acting within the scope of
    their lawful investigative powers. The gun would inevitably have been
    discovered apart entirely from the questioning of Johnson.  These considerations
    mitigate the seriousness of the impact of the breach on the Johnsons privacy
    right.

[53]

On
    the third
Grant
factor, society has a great interest in the
    adjudication of this case on the merits. The loaded handgun is highly reliable
    evidence that is essential to prosecuting a very serious offence of a nature
    that is of considerable public concern: see
Blake
, at para. 31.  I
    note that the serial number of the gun had been obliterated, suggesting that
    Johnson did not have a lawful purpose in possessing it.

[54]

While
    the breach in this case was not trivial, it does not rise to the level required
    for exclusion. On balance, the repute of the administration of justice would
    suffer by excluding this evidence. In my view, the gun was properly admitted. I
    would therefore dismiss the conviction appeal.

IV.     Sentence Appeal

[55]

When the events took place that formed the basis of the six
    weapons-related charges for which Johnson was convicted, Johnson was bound by
    several court orders pursuant to s. 109 of the
Criminal Code
and to a
    probation order that stipulated that he not possess any weapons.  He had a
    prior conviction for possession of a firearm.  As a result, Johnson was subject
    to an escalated mandatory minimum sentence of at least five years.

[56]

The defence argued for a range of sentence between five to six
    and a half years.  The Crown sought a global sentence of 12 years  ten years
    for the firearm possession offence and two years consecutive for the weapons
    prohibition offences.  At the time of his conviction, Johnson had been in
    custody just over 22 months.

[57]

The trial judge imposed a sentence of seven and a half years for
    the firearms offences and six months for each of the three weapons prohibition
    offences, to be served consecutively to the firearm possession offence and to
    one another.  Johnson was also sentenced to six months for the breach of
    probation to be served concurrent to the sentence for the corresponding weapons
    prohibition offence.  Johnson was given credit for 44 months of pre-trial
    custody.

[58]

The
    two factors that necessarily dominated the determination of a fit sentence for
    Johnson was first that he was of Aboriginal descent and second, the seriousness
    of the offences and the corresponding mandatory minimum sentences of five years
    in the penitentiary that they attracted.

[59]

Counsel
    for Johnson submits that the trial judge failed to pay particular attention to
    the circumstances of Aboriginal offenders as required by s. 718.2(e) of the
Criminal
    Code
. Specifically, rather than giving tangible consideration to Johnsons
    Aboriginal origins, the trial judge focused on the seriousness of the offence,
    Johnsons criminal record and the mandatory minimum.  In effect, Johnson was
    treated just like any other offender.

[60]

I
    do not agree.

[61]

The
    sentencing reasons demonstrate that the trial judge was very much aware, from
    the submissions of counsel and from the comprehensive
Gladue
report,
    of Johnsons Aboriginal background.  He specifically commented on the fact that
    Johnson was significantly disadvantaged as a result of being born into an
    impoverished and abusive environment.  The trial judge also, as required,
    considered the other applicable sentencing principles that apply to all
    offenders.

[62]

Counsel
    for Johnson also argues that, given his Aboriginal status the starting point
    for the sentence, the sentencing floor, should be considered differently.
    Otherwise, the impact of Johnsons Aboriginal status is unjustifiably watered
    down, if not totally eliminated.

[63]

The
    difficulty I have with this submission is that there can be no denying that the
    five-year mandatory minimum applies to all cases, including those, such as
    this, where s. 718.2(e) of the
Code
applies.

[64]

As
    pointed out in
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433, at
    paras. 68-73, sentencing of all offenders, including Aboriginal offenders, is
    an individualized process. Section 718.2(e) must be addressed in all cases
    involving Aboriginal offenders. However, the considerations relevant to s.
    718.2(e) must still have some connection to the offence and/or the offender
    before they will impact on the sentence. As explained in
Ipeelee
, at
    para. 83:

[65]

Systemic
    and background factors do not operate as an excuse or justification for the
    criminal conduct. Rather, they provide the necessary context to enable a judge
    to determine an appropriate sentence. This is not to say that those factors
    need not be tied in some way to the particular offender and offence. Unless the
    unique circumstances of the particular offender bear on his or her culpability
    for the offence or indicate which sentencing objectives can and should be
    actualized, they will not influence the ultimate sentence.

[66]

As
    the trial judge correctly recognized, his sentencing options were restricted by
    the fact that Johnson faced a five-year minimum prison sentence. And it was
    against the background of this restriction that the trial judge was obliged to
    consider the circumstances of the offence and the offender, including his
    Aboriginal status.  These circumstances included the fact that the crimes for
    which Johnson was being sentenced were serious as was his criminal record.

[67]

The
    trial judge described the appropriate range as five to ten years.  I see
    nothing wrong with this. As admitted by counsel for Johnson, this was not a
    case for the minimum sentence. The multiple aggravating factors, particularly
    the fact that Johnson was under several court orders prohibiting the possession
    of any firearm, demanded a sentence greater than the five-year minimum.

[68]

The
    trial judges detailed reasons indicate that he appreciated that he had to
    consider Johnsons Aboriginal background in affixing the appropriate sentence
    and that he did so. The sentence he imposed is entitled to deference.

[69]

Like
    the trial judge, I would give Johnson credit for 44 months based on his
    pre-sentence custody. I would grant leave to appeal but dismiss the sentence
    appeal.

V.       Disposition

[70]

For
    these reasons, I would dismiss the appeal as to conviction. I would grant leave
    to appeal sentence and dismiss the sentence appeal.

Gloria Epstein J.A.

I agree J. Cavarzan per GE. J.A.

Doherty J.A. (Concurring):

[71]

Like
    my colleague, I would dismiss the appeal.

[72]

I
    see no reason to review the trial judges finding that the appellant was not
    detained.  Even if there was a detention, it was not arbitrary and did not
    engage the rights in s. 10(b).

[73]

The
    trial judge held that the questioning of the appellant by the police officer
    was an unlawful search.  It would follow from that finding that the questioning
    breached the appellants s. 8 rights.

[74]

Assuming
    that the questioning was a violation of s. 8, I agree with my colleague that
    there was a sufficient nexus between that breach and the discovery of the gun
    to engage the remedial powers in s. 24(2).  I also agree with her analysis of
    the factors relevant to the admissibility of the handgun under s. 24(2).  The
    trial judge did not err in refusing to exclude the gun from evidence.

[75]

I
    would also dismiss the sentence appeal for the reasons given by my colleague.

RELEASED:  DD                              Doherty
    J.A.

MAR 25 2013


WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)  at the first reasonable opportunity, inform any
    witness under the age of eighteen years and the complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, make the order.

(3)
In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)
An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. K.E., 2013 ONCA 175

DATE: 20130322

DOCKET: C54296

Doherty, MacPherson and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K. E.

Appellant

Bradley Pearson, for the appellant

Karen Shai, for the respondent

Heard: March 15, 2013

On appeal from the conviction entered by Justice P. Kane
    of the Superior Court of Justice, sitting with a jury, on March 3, 2011 and the
    sentence imposed by Justice Kane on September 9, 2011.

BY THE COURT:

[1]

The appellant seeks to set aside his conviction by a jury of sexual
    assault on the ground that he was not tried in a reasonable time as required by
    s. 11(b) of the
Charter
.  He also seeks leave to appeal from the trial
    judges order that he pay a victim surcharge of $4,000.

THE CONVICTION APPEAL

The Background

[2]

The offence of which the appellant was convicted is alleged to have
    taken place in the early morning of July 15, 2007 in the basement of the appellants
    home at CFB Petawawa. The appellant was then a member of the Canadian Forces.
    The complainant was a civilian, a long-time friend of the appellants partner
    and of the appellant.

[3]

The complainant reported her allegations to military authorities the
    next day and military police commenced an investigation. In accordance with the
    procedure followed in the military, the appellant was arrested, but not charged
    with an offence, on July 24, 2007. He was released on condition that he remain
    in Canada under military authority and not communicate with or be within 500
    meters of the complaint. He continued to perform his duties with the Canadian
    Forces.

[4]

On April 10, 2008, after the military investigation had been completed
    and reviewed by the military prosecution authorities, the appellant was served
    with a Record of Disciplinary Proceedings (RDP), the charging document in
    military prosecutions. About two weeks later, a decision of the Court Martial
    Appeal Court effectively shut down the then existing system of military
    prosecutions.

[5]

The Regional Military Prosecutor met with the local Crown Attorney about
    the appellants case and others. The Crown Attorney agreed to assume
    responsibility for the appellants prosecution in the civilian justice system.

[6]

On November 6, 2008 an information was laid against the appellant
    charging him with the sexual assault of which he was ultimately convicted.

The Committal for Trial

[7]

On July 9, 2009, about eight months after he was charged with the
    offence in proceedings instituted in the civilian justice system, the appellant
    was ordered to stand trial at the conclusion of the preliminary inquiry.

The Proceedings in the Superior Court

[8]

The appellant appeared in an Assignment Court in the Superior Court of
    Justice on September 14, 2009. A pre-trial conference was scheduled for October
    7, 2009. For reasons that are not material, the pre-trial conference was
    rescheduled for December 10, 2009.

[9]

On January 11, 2010, the appellant appeared in another Assignment Court
    in the Superior Court of Justice to set a date for trial. His [then] counsel
    advised the presiding judge that he had several pre-trial motions, including an
    application to stay proceedings under s. 11(b) of the
Charter
. Counsel
    told the presiding judge that he (counsel) was not available to argue the
    motions, which he estimated would take three days, until October, 2010. He
    sought a trial date of December 6, 2010, nearly 11 months after the  Assignment
    Court.

[10]

The
    judge presiding in the Assignment Court refused to schedule the pre-trial
    motions and trial as proposed by the appellants [then] counsel. The appellant
    was required to get new counsel, another lawyer in the same office, and August
    3, 2010 was fixed as the date for trial.

The New Trial Date

[11]

Towards
    the end of July 2010, the Crown Attorney learned that no jury panel had been
    summoned for the week of August 3, when the appellants trial was to take
    place. The Crown Attorney notified counsel for the appellant and offered his (the
    Crown Attorneys) consent to a re-election of trial before a judge sitting without
    a jury. The appellant declined the offer.

[12]

On
    August 3, 2010, trial dates were offered to the appellant beginning in late
    September, 2010 and continuing throughout the fall and into the winter.  Except
    for one week in December when the Crown Attorney was not available, defence
    counsel was not available until February 28, 2011. The presiding judge fixed
    February 28, 2011 as the date for trial. The jury returned their verdict on
    March 3, 2011.

The Sentencing Proceedings

[13]

To
    permit preparation of a pre-sentence report in New Brunswick where the
    appellant was then living, sentencing proceedings were adjourned to June 29,
    2011.

[14]

The
    pre-sentence reported was received on June 29, 2011, but the sentencing did not
    proceed on that date because the trial judge was unavailable.  He was in
    another jurisdiction awaiting the verdict of a deliberating jury.

[15]

The
    trial judge imposed sentence, including a $4,000 victim surcharge on September
    9, 2011.

THE GROUNDS OF APPEAL

[16]

On
    his appeal from conviction, the appellant contends that the judge who heard the
    two s. 11(b) motions in advance of trial (the motion judge) erred by

i.        mischaracterizing
    the delay prior to April 10, 2008;

ii.       mischaracterizing
    the delay after August 3, 2010, the first trial   date; and

iii.      failing
    to enter a stay of proceedings even if he had properly      characterized the
    periods of and responsibility for the delay.

The appellant also contends that the additional delay
    caused by the time that elapsed in concluding sentencing proceedings breached
    ss. 7 and 11(b) of the
Charter
.

[17]

We
    would not give effect to any of the alleged errors in connection with
    s. 11(b) of the
Charter
.

DISCUSSION

The Delay Prior to April 10, 2008

[18]

The
    appellant submits that the motion judge erred in law in determining that the
    starting date for the purpose of the delay analysis under s. 11(b) was April
    10, 2008, the day he was served with the RDP, the charging document in the
    military prosecution. The appellant says that the starting date for s. 11(b)
    purposes should have been either

i.        the
    date of his arrest without charge and release subject to        conditions,
    July 24, 2007; or

ii.       at
    the latest, the date upon which DNA results were received     by the
    authorities, January 30, 2008.

[19]

We
    disagree.

[20]

It
    is well-settled that a person is charged with an offence within s. 11, thus
    s. 11(b) of the
Charter
, when an information is sworn alleging an
    offence against him or her:
R. v. Kalanj
, [1989] 1 S.C.R. 1594, at p.
    1607. Time reckoning for the purposes of claims of infringement of the right to
    be tried within a reasonable time commences with the laying of the information
    and continues until the completion of the trial.

[21]

The
    motion judges assessment of the appellants claim under s. 11(b) proceeds from
    the starting date of April 10, 2008, the day upon which the appellant was
    charged with an offence in the system of military justice then in force. It
    may well be open to question whether the commencement date should have been
    nearly seven months later, on November 6, 2008, when the appellant was charged
    with the offence in the civilian courts before which he was ultimately tried.
    But that issue we leave for another day.

[22]

To
    the extent that the appellant invites us to consider pre-charge delay as
    relevant to the s. 11(b) analysis, we decline to do so.  Pre-charge delay is
    not counted in determining the length of the delay for the purposes of the
    analysis under s. 11(b).  The reason is simple: prior to charge, an accused has
    not been charged with an offence as required by the opening words of s. 11 of
    the
Charter
:
Kalanj
, at p. 1610. But in some circumstances,
    pre-charge delay may have an influence on the overall determination of whether
    post-charge delay is unreasonable:
R. v. Morin
, [1992] 1 S.C.R. 771,
    at p. 789.

[23]

We
    are not persuaded that this is one of those cases in which the period preceding
    the laying of the charge, whichever date is appropriate for the s. 11(b) analysis,
    has any influence on the overall determination of whether the post-charge delay
    was unreasonable. Pre-charge delay did not infringe the appellants right to
    security of the person, or his liberty interest, or compromise his right to
    make full answer and defence.

The Post August 3, 2010 Delay

[24]

The
    appellant also contends that the motion judge erred in his characterization of
    the period following the first trial date of August 3, 2010 in his s. 11(b)
    analysis.

[25]

Again,
    we disagree.

[26]

When
    the Crown Attorney learned in late July, 2010 that no jury panel had been
    summoned for the appellants trial to begin on August 3, 2010, he immediately notified
    counsel for the appellant. The Crown Attorney offered to consent to a
    re-election to trial by a judge sitting without a jury but the appellant, as
    was his undoubted right, declined to re-elect his mode of trial.

[27]

The
    appellant was offered trial dates beginning in late September, 2010, a matter
    of weeks after the first scheduled trial date. Apart from one week in December
    when the Crown Attorney was not available, counsel for the appellant was not
    available until late February, 2011. The motion judge did not consider that the
    entire seven-month period between the trial dates should be characterized as
    institutional or Crown delay, but he did not assign specific periods to the
    various participants.

[28]

In
    our view, the motion judges approach to this time period did not cause any
    prejudice to the appellant. While defence counsel is not expected to hold him
    or herself in a state of perpetual readiness after a trial does not proceed on
    a scheduled date, on any reasonable view, a significant period of time between
    trial dates was rightly assigned to neutral delay.

The Delay in Sentencing

[29]

The
    appellant also argues that the delay in completing sentencing proceedings, in
    particular, the delay between the original and actual sentencing dates, should
    be counted in the total period of delay and result in a stay of proceedings.

[30]

We
    do not agree.

[31]

On
    the date fixed for sentencing, the trial judge was unavailable because, as a
    member of an itinerant court, he was sitting in another jurisdiction awaiting
    the verdict of a jury. As this court noted in another context in
R. v.
    Meisner
, [2004] O.J. No. 3802, at para. 3, things happen from time to time
    in the criminal justice system for which no one can be faulted and which
    inevitably require an adjournment. Inherent in the process is that time is
    required to reschedule the adjourned proceedings. That happened here. The accommodation
    was reasonable, the delay neutral for the purposes of the s. 11(b) assessment.

[32]

In
    the result, the appeal from conviction is dismissed.

THE SENTENCE APPEAL

[33]

The
    appellant also alleges error in the imposition of a victim surcharge of $4,000
    as part of the sentence imposed upon him. The respondent takes the position
    that a reduction in the amount of the victim surcharge would not be contrary to
    the interests of justice.

[34]

The
    obligation to impose a victim surcharge on a convicted offender, except where the
    offender establishes undue hardship to him or her or his or her dependants, is
    created by s. 737(1) of the
Criminal Code
. The general rule about
    quantum, in circumstances such as these, is that the amount of the victim
    surcharge is to be $100. This amount may be increased where an increase is
    appropriate in the circumstances and the offender is able to pay a higher
    amount.

[35]

After
    the trial judge had imposed sentence, including ancillary DNA collection and
    SOIRA orders, the court clerk asked whether a victim fine surcharge was being
    imposed. During the brief discussion that followed, the trial Crown (not Ms.
    Shai) suggested that the surcharge should be fixed in an amount towards the
    upper end of a range of $1,000 to $5,000.

[36]

On
    appeal, Crown counsel takes the position that a reduction in the amount of the
    victim surcharge would not be contrary to the interests of justice.  We agree.
    The trial record reveals no basis upon which the trial judge could conclude
    that such a departure from the statutory minimum victim surcharge was
    appropriate in the circumstances of this case. Nor was any meaningful inquiry
    conducted about the ability of the appellant to pay the amount of victim
    surcharge that was imposed.

[37]

In
    the result, we grant leave to appeal sentence and allow the appeal from
    sentence to the extent of reducing the victim surcharge from $4,000 to $100 in
    accordance with the provisions of s. 737(2)(b)(ii) of the
Criminal Code
.

Released: March 22, 2013 DD

Doherty
    J.A.

J.
    C. MacPherson J.A.

David
    Watt J.A.