COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Davatgar-Jafarpour, 2019 ONCA 353

DATE: 20190502

DOCKET: C57831 & C58857

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent
(Appellant on the Sentence Appeal)

and

Morteza Davatgar-Jafarpour

Appellant
(Respondent on the Sentence Appeal)

Morteza Davatgar-Jafarpour, acting in person on the
    conviction appeal

Davin Garg, for the respondent/appellant on the sentence
    appeal

Ian Carter, for the respondent on the sentence appeal

Heard: November 8, 2018

On appeal from the conviction entered by Justice James A.
    Ramsay of the Superior Court of Justice, sitting with a jury, on September 4,
    2013, and from the sentence imposed on September 30, 2013.

Roberts
    J.A.:

A.

Overview
    and factual background

[1]

The appellant, Morteza
Davatgar-Jafarpour,
appeals against his multiple
    convictions for knowingly using forged documents, fraud, and conspiracy to
    commit fraud. The Crown seeks leave to appeal against the two-year global sentence
    imposed.

[2]

Mr. Jafarpour was the former executive director of Settlement and
    Immigration Services Organization (SISO), a non-profit organization that provided
    services to new immigrants through various programs. SISO received eighty
    percent of its funding from the federal government through Citizenship and
    Immigration Canada (CIC). The funding operated through contribution
    agreements by which CIC agreed to reimburse actual expenses in certain
    categories (such as payroll) up to a specified limit after the expenses were
    paid by SISO. As a result, no surplus should have arisen from SISOs delivery
    of CIC-funded programs.

[3]

Mr. Jafarpour, assisted by his co-accused, Ahmed (Robert) Salama, put
    into place and carried out over several years a large-scale fraudulent scheme
    against CIC. SISO submitted false information to CIC, seeking reimbursement for
    expenses that were not incurred and paid. Mr. Jafarpours scheme generated a
    large surplus. He coerced two employees, under the threat of SISOs demise and the
    loss of everyones employment, to advance the fraud by manufacturing false
    invoices and payroll records.

[4]

The fraud ran for several years before its discovery. According to the
    expert forensic accounting evidence, SISO had overclaimed $1.2 million in
    salaries for the 2009-2010 fiscal year, and, between 2008 and 2010, had accumulated
    approximately a $2.9 million surplus of revenue over actual expenses incurred
    and paid by SISO largely due to the fraud. CIC had recouped most of its losses by
    refusing to pay SISOs legitimate invoices.

[5]

SISO employed about 150 employees, all of whom lost their employment
    when the fraud was uncovered, and the organization went into bankruptcy.
    Victim impact statements from SISO employees and contractors set out the
    emotional and financial hardships they suffered as a result of SISOs
    unexpected demise. According to the evidence of SISOs trustee in bankruptcy, these
    included the employees outstanding
Employment Standards Act
, 2000
,
    S.O. 2000, c. 41 claims of about $785,000, the damage to their reputations, and
    the difficulty in finding new employment given the stigma of association with
    SISO.

(i)

Convictions and sentence

[6]

On September 4, 2013, Mr. Jafarpour, along with Mr. Salama, was
    convicted by a jury of seven counts of uttering a forged document, one count of
    fraud, and one count of conspiracy to commit fraud, contrary to ss. 368,
    380(1), and 465(1) of the
Criminal Code of Canada
, R.S.C. 1985, c.
    C-46. On September 30, 2013, the trial judge imposed a two-year global
    custodial sentence on Mr. Jafarpour.

[7]

In his reasons for sentence, the trial judge did not make a finding
    about the exact amount of the fraud. Nevertheless, he held that the amount was
    well in excess of one million dollars and that the statutory aggravating
    factor set out in s. 380.1(1.1) of the
Criminal Code

applied. He
    stated that this was a big, complex, long-lasting fraud, which made out the aggravating
    factor set out under s. 380.1(1)(a). He also found that the statutory
    aggravating factor under s. 380.1(1)(d) had been proven, as Mr. Jafarpour took
    advantage of his high regard in the community in committing the fraud. In
    reviewing the expert forensic evidence, the trial judge determined that SISO
    claimed $1.2 million dollars more in salaries than it actually paid out and
    that [i]n the last three years [of the indictment], it accumulated a surplus
    of $2.9 million. The trial judge noted that not all of that surplus would
    necessarily have come from CIC because only eighty percent of SISOs funding
    came from CIC. However, he inferred that the overcharging of CIC was the main
    factor in the surplus that accumulated.

[8]

With respect to the actual loss suffered by CIC and the impact of the
    fraud on the government, the trial judge held that CIC recovered some of their
    loss by refusing to advance more money, including money for new work
    legitimately performed by SISO. On the evidence before him, he found that CIC
    may have recovered all its losses or still be due up to $448,000. The trial
    judge also noted that the lost money was only one part of the frauds impact
    because it tied up a great [deal] of CICs resources by causing audits that
    were unnecessarily complicated by the continuing deceit.  He concluded that
    apart from making a restitution order inadvisable, whether substantial
    recovery or total recovery took place, makes little difference to sentence in
    the circumstances.

[9]

The trial judge found that the fraud was not a breach of trust because Mr.
    Jafarpour was not in a trust relationship with CIC. However, he held that Mr.
    Jafarpours crime was still reprehensible and that he had no business
    abusing the good faith and benevolence of the Canadian government and thereby
    causing prejudice to his fellow citizens and no business corrupting two of
    his employees. While expressly not sentencing Mr. Jafarpour for breach of
    trust against SISO and acknowledging that sentencing is an individual
    exercise, the trial judge held that [a]buse of such an organization is worthy
    of denunciation and general deterrence and it was a tragedy to see such an
    organization collapse. He concluded that Mr. Jafarpour must take his share of
    the blame for that event.

[10]

Mitigating
    factors noted by the trial judge included Mr. Jafarpours difficult and brutal experiences
    in leaving his former homeland, his quiet good deeds on behalf of newcomers,
    his adoption of two orphaned children, and his creation of an important
    organization that did valuable work in the community.

The
    trial judge also acknowledged that Mr. Jafarpour previously had a sterling
    reputation in the community, but properly noted that his former good name could
    not be considered a mitigating factor pursuant to s. 380.1(2) of the
Criminal
    Code
because it was relevant to the commission of the fraud.

[11]

The
    trial judge noted that Mr. Jafarpours motive for the fraud seemed to have been
    simple empire building of a very large non-profit organization with some $14
    million in revenue and that he did not commit the specific thefts from SISO
    like his co-accused of which he was unaware. However, he also observed that
    although in line with chief executives salaries from similar-sized
    non-profits, Mr. Jafarpours significant salary was possible, because SISO
    seemed to be in such good shape.

[12]

As
    reflected in the longer sentence for Mr. Jafarpour, the trial judge saw his
    culpability as greater than his co-accused because Mr. Jafarpour was the
    person behind the fraud, the one who put it all into motion.

[13]

Crown
    counsel sought a sentence for Mr. Jafarpour in the range of five to six years. Counsel
    for Mr. Jafarpour submitted that a sentence in the range of two to three years
    would be appropriate. The trial judge held that the particular circumstances
    of this case strike [him] as being closer to the cases in which sentences from
    18 months to three years have been imposed than the cases in which the range
    has been set to three to five years or more. The trial judge determined that
    an adequate deterrent for Mr. Jafarpours actions was a sentence of two
    years custody in the penitentiary.

(ii)

Appeal
    proceedings

[14]

On
    October 29, 2013, Mr. Jafarpours co-accused, Mr. Salama, filed his notice of
    appeal from conviction.  The Crown filed its notice of application for leave to
    appeal and notice of appeal against sentence on October 30, 2013. On December
    16, 2013, Mr. Jafarpour filed his notice of appeal for inmate appeals, dated
    December 3, 2013. On May 28, 2014, this court granted Mr. Jafarpours motion
    for an extension of time to appeal. Mr. Jafarpour filed his notice of appeal
    against conviction on May 29, 2014. Three days later, on June 2, 2014, Mr.
    Jafarpour was released from custody on full parole. The Crown perfected its
    sentence appeal on July 15, 2014. Mr. Jafarpours warrant expiry date was
    September 29, 2015. He perfected his conviction appeal on March 12, 2018 under
    judicial case management.

B.

analysis

(a)

Conviction Appeal

[15]

Mr.
    Jafarpour submits two main grounds of appeal:

i)

The Crown
    breached its disclosure obligations by failing to decrypt a hard drive referred
    to as Hard Drive B and produce the hundreds of documents contained in that
    drive. Mr. Jafarpour maintains that the documents would have supported his
    denial of involvement in the fraudulent scheme. Mr. Jafarpour also disputes the
    authenticity and source of several electronic documents tendered in hard copy
    format at trial. He submits the Crown did not discharge its burden to prove the
    authenticity of electronic documents, contrary to s. 31.1 of the
Canada
    Evidence Act
, R.S.C. 1985, c. C-5.

ii)

Mr. Jafarpour suffered
    trial unfairness and a miscarriage of justice because of the ineffective
    assistance of his counsel at trial.

[16]

I
    would not give effect to these grounds of appeal.

[17]

First,
    the Crown was not obliged to decrypt Hard Drive B and produce the documents it
    contained. Hard Drive B is a backup drive containing data from SISOs servers. The
    police had seized this backup drive from a third party data company hired by
    SISO but did not decrypt it and did not review its contents. The Crown
    disclosed the fact of the seizure of Hard Drive B to the defence. The defence
    did not request that the drive be decrypted. Rather, the defence used the fact
    that the police did not review the contents of Hard Drive B, as well as the
    absence of other documents and email transmissions, to argue that there was a
    gap in the Crowns case giving rise to a reasonable doubt about Mr. Jafarpours
    role in the fraudulent scheme. The jury was made aware of Mr. Jafarpours
    defence by his trial counsel in examinations and cross-examinations of
    witnesses, including Mr. Jafarpour; in trial counsels closing submissions; and
    by the trial judge in his jury charge.

[18]

Parts
    of Hard Drive B that were subsequently decrypted after trial were produced as
    fresh evidence on appeal. Mr. Jafarpour has not demonstrated how any of the
    documents on Hard Drive B would have affected the outcome of the trial. Not one
    of them diminishes or contradicts the ample evidence of Mr. Jafarpours
    involvement in the fraudulent scheme that was put before the jury.

[19]

With
    respect to the other evidentiary issue, Mr. Jafarpour reiterates his trial
    argument about the source of the 400 hard copy documents presented by the
    Crown at trial. On appeal, he now disputes the authenticity of those
    documents.

[20]

In
    November 2010, one of the SISO employees coerced to assist in the fraud,
    provided the police with the hard drive from Mr. Jafarpours work computer and
    copies of Mr. Salamas work files on an external hard drive. The police
    uploaded the contents of both drives to a secure database and searched the
    database to locate relevant documents, focusing on emails with attachments. As
    I understand the record, the relevant documents were those 400 hard copy pages
    tendered as evidence. In May 2013, the Crown provided to the defence a duplicate
    copy of the internal hard drive from Mr. Jafarpours work computer.

[21]

At
    trial, Mr. Jafarpour did not dispute the authenticity of the documents.
    However, he asserted that they did not represent the entirety of the emails he
    sent and received while at SISO, despite the Crowns representations to the
    contrary. There were about 133 emails archived on Mr. Jafarpours hard drive.

[22]

I
    would not give effect to Mr. Jafarpours argument with respect to the
    electronic documents. First, the authenticity of the documents was not an issue
    at trial. These documents were sourced both from Mr. Jafarpours internal hard
    drive and the external hard drive containing copies of Mr. Salamas files. The
    Crown did not make the representation that all documents were sourced from Mr.
    Jafarpours work computer. Second, similar to the concerns surrounding Hard
    Drive B, Mr. Jafarpours trial counsel asked questions about the source of
    these documents in cross-examinations; he raised the uncertainty as to the
    source of these emails in his closing address to the jury; and the trial judge
    noted this issue in his charge to the jury.

[23]

Overall,
    the verdict was firmly grounded in the hundreds of documents taken from Mr.
    Jafarpours internal drive and the external drive of his co-accused, as well as
    testimony of the witnesses at trial which clearly established Mr. Jafarpours
    orchestration of the fraudulent scheme. Mr. Jafarpour and Mr. Salama admitted
    that the documents submitted to the government for reimbursement of false
    expenses were not genuine. They each attempted to blame the other for the fraud
    in a cut-throat defence. However, there was a clear paper trail of myriad
    e-mail correspondence,

which Mr. Jafarpour did
    not dispute as inauthentic at trial, showing Mr. Jafarpours knowing
    participation in and furtherance of the fraud.

[24]

I
    similarly reject Mr. Jafarpours allegation of ineffective assistance of
    counsel. In my view, Mr. Jafarpour has failed to meet the test for such a
    claim.

[25]

In
R. v. Cubillan
, 2018 ONCA 811, 49 C.R. (7th) 339, at para. 8, this court
    recently summarized the criteria that must be met to establish a claim for
    ineffective assistance of counsel:

The appellant
    must establish on a balance of probabilities that trial counsel's conduct fell
    below the standard of reasonable professional assistance and that the
    ineffective representation resulted in a miscarriage of justice. A miscarriage
    of justice occurs when the ineffective representation "undermine[s] the
    appearance of the fairness of the trial, or the reliability of the
    verdict":
R. v. Archer

(2005), 202 C.C.C. (3d) 60
(Ont. C.A.), at
    para. 120. The unreliability of a verdict is made out where the appellant can establish
    that there is a reasonable probability that the verdict would have been
    different had he received effective representation. A reasonable probability is
    one that is "sufficiently strong to undermine the appellate court's
    confidence in the validity of the verdict":
R. v. Dunbar
,
2007 ONCA 840
, at para. 23.

[26]

The
    record demonstrates that Mr. Jafarpours trial counsel was effective in
    bringing out Mr. Jafarpours version of events, cross-examining the Crowns
    witnesses about the evidentiary deficiencies in its case, and urging the trial
    judge to put safeguards for Mr. Jafarpours benefit into the jury charge,
    including a warning against using Mr. Salamas evidence to implicate Mr.
    Jafarpour in the fraud. In my view, Mr. Jafarpours trial counsel did all that
    he could in the face of the overwhelming evidence of Mr. Jafarpours
    participation in the fraud that the jury was entitled to accept.

[27]

There
    was no miscarriage of justice or unfairness here. Mr. Jafarpour has not
    demonstrated that his trial counsel fell below the requisite standard. Even if
    he had, there is no reasonable probability or even possibility that the verdict
    would have been any different in the light of the Crowns formidable case
    against him.

[28]

As
    a result, I would dismiss Mr. Jafarpours appeal against his convictions.

(b)

Sentence Appeal

(i)

Is the sentence demonstrably unfit?

[29]

The
    Crown seeks leave to appeal against the two-year sentence that the trial judge
    imposed on Mr. Jafarpour. The Crown submits that a sentence of two years for this
    large-scale, sophisticated fraud was demonstrably unfit.

[30]

Mr.
    Jafarpour submits that the trial judge considered all the relevant factors,
    made no errors in principle, and that his sentence towards the low end of the
    range should be given deference.

[31]

I
    am mindful, as Mr. Jafarpours counsel submits, that sentencing is a
    fact-specific exercise and the choice of an appropriate sentence is driven by
    the trial judges evaluation of the unique variables in the particular case. Because
    sentencing is a highly individualized process, the imposition of a sentence
    outside of an established range is not necessarily unfit:
R. v. Suter
,
    2018 SCC 34, [2018] 2 S.C.R. 496, at para. 25. The Supreme Court in
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, compendiously reiterated the governing
    considerations at para. 58:

There will always be situations that call for a sentence
    outside a particular range: although ensuring parity in sentencing is in itself
    a desirable objective, the fact that each crime is committed in unique
    circumstances by an offender with a unique profile cannot be disregarded. The
    determination of a just and appropriate sentence is a highly individualized
    exercise that goes beyond a purely mathematical calculation. It involves a
    variety of factors that are difficult to define with precision. This is why it
    may happen that a sentence that, on its face, falls outside a particular range,
    and that may never have been imposed in the past for a similar crime, is not
    demonstrably unfit. Once again, everything depends on the gravity of the
    offence, the offender's degree of responsibility and the specific circumstances
    of each case. LeBel J. [in
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1
    S.C.R. 206, at para. 44] commented as follows on this subject:

A judge can order a sentence
    outside that range as long as it is in accordance with the principles and
    objectives of sentencing. Thus, a sentence falling outside the regular range of
    appropriate sentences is not necessarily unfit. Regard must be had to all the
    circumstances of the offence and the offender, and to the needs of the
    community in which the offence occurred.

[32]

While
    not straitjackets, sentencing ranges cannot be arbitrarily ignored otherwise
    they become meaningless. As the Supreme Court acknowledged in
Lacasse
,
    sentencing ranges serve in any given case as guides for the application of all
    the relevant principles and objectives of sentencing: at para. 57.  They represent
    one tool among others that are intended to aid trial judges in their work: at
    para. 69. And, as the Supreme Court stated, at para. 67:

a deviation from such a range or
    category is not an error in principle and cannot in itself automatically justify
    appellate intervention
unless the sentence that is
    imposed departs significantly and for no reason from the contemplated sentences

    (emphasis added).
A sentence is demonstrably unfit if it
    unreasonably departs from the proportionality principle, a principle which
    requires reconciling parity of sentences and individualization:
Lacasse
, at para. 53.

[33]

In
    my view, the two-year sentence imposed by the trial judge for Mr. Jafarpours
    orchestration of the sophisticated, large-scale fraud against CIC is demonstrably
    unfit and cannot stand. It significantly departs without reason from the range
    of sentences contemplated for such a fraud.  Further, it fails to give effect
    to the fundamental principle of proportionality and other sentencing
    principles, including in particular, the principles of general deterrence and
    denunciation. Moreover, it is inconsistent with the trial judges own findings,
    given the aggravating circumstances and the absence of any significant mitigating
    circumstances that he found in this case.

[34]

In cases of large-scale fraud,
the range of sentences imposed in
    circumstances like the one at bar is generally three to five years: see
R.
    v. Khatchatourov
, 2014 ONCA 464, 313 C.C.C. (3d) 94, at paras. 37-45;
R.
    v. Dobis

(2002),
    58 O.R. (3d) 536
(C.A.),

at
    paras. 36-37;
R. v. Bogart

(2003), 61 O.R. (3d) 75 (C.A.), at
    para. 36, leave to appeal refused, [2002] S.C.C.A. No. 398. This range reflects
    the substantial weight that courts must give to the principles of general
    deterrence and denunciation:
Bogart
, at para. 29;
R. v. Drabinsky
,
    2011 ONCA 582, 107 O.R. (3d) 595, at paras. 160-161, leave to appeal refused,
    [2011] S.C.C.A. No. 491. As this court explained in
Bogart
, at para.
    30:

This court has affirmed that in cases of large-scale fraud committed
    by a person in a position of trust, the most important sentencing principle is
    general deterrence. Mitigating factors and even rehabilitation become
    secondary. In
R. v. Bertram and Wood
(1990), 40 O.A.C. 317, this
    court observed that most major frauds are committed  as this one was  by well-educated
    persons of previous good character. Thus the court held at p. 319,

The sentences in such cases are not really concerned with
    rehabilitation. Instead, they are concerned with general deterrence and with
    warning such persons that substantial
penitentiary
sentences will
    follow this type of crime, to say nothing of the serious disgrace to them and
    everyone connected with them and their probable financial ruin. [Emphasis in
    original.]

[35]

It
    is well established that, a penitentiary sentence is the norm, not the
    exception, in cases of large-scale fraud and in which there are no
    extraordinary mitigating circumstances:
R. v. Leo-Mensah
, 2010 ONCA
    139, 101 O.R. (3d) 366, at para. 11, leave to appeal refused, [2010] S.C.C.A.
    No. 170. As this court explained in
Drabinsky
, at para. 160, the
    sentencing principles of general deterrence and denunciation for large-scale
    commercial frauds will most often find expression in the length of the jail
    term imposed. For these reasons, as noted above, large-scale frauds like the
    one in this case ordinarily merit a sentence in the range of three to five
    years: see
Khatchatourov
,
at paras. 37-45;
Dobis
,

at paras. 36-37;
Bogart
,
at para.
36.

[36]

At
    trial, counsel for Mr. Jafarpour referred to cases where offenders who engaged
    in large-scale fraud received a sentence outside of the three-to-five-year
    range. However, the individual circumstances in those cases materially differ
    from the facts as found by the trial judge in the present case: the fraud was
    much shorter, not particularly sophisticated, and all of the stolen frauds were
    recovered:
R. v. Clarke

(2004), 189 O.A.C. 331 (C.A.); the
    offenders pleaded guilty and co-operated with the police:
Bogart
;
R.
    v. Wilson
(2003), 174 C.C.C. (3d) 255 (Ont. C.A.); or the offender played
    a small role in the fraud orchestrated by others:
R. v. Solleveld
,
    2014 ONCA 418, 120 O.R. (3d) 678.

[37]

The
    individual circumstances described in the above cases

that led this
    court to uphold sentences outside the range are not present in Mr. Jafarpours situation.
    As the trial judge found, the fraud orchestrated by Mr. Jafarpour

was large-scale,
    sophisticated, complex, and occurred over several years. While the trial judge
    did not specify the exact amount of the fraud, based on his findings, the
    expert forensic evidence, and the evidence of the trustee in bankruptcy for
    SISO, the fraud was at least between $2 and $2.5 million.
[1]

[38]

In
    the circumstances of this case, there were few significant mitigating factors
    and none that would have justified such a marked departure from the established
    range for large-scale frauds.  The most significant mitigating factors apparent
    from the record before the trial judge include that Mr. Jafarpour is a
    first-time offender, suffered hardship in the country of his birth, and enjoys
    the support of his family and many members of the community. While his fraud
    allowed him to command a significant salary for leading a large non-profit
    corporation, there is no evidence of the additional aggravating factor that Mr.
    Jafarpour otherwise personally appropriated the fraudulently obtained funds
    like his co-accused. As earlier noted, s. 380.1(2) of the
Criminal Code
stipulates that Mr. Jafarpours previously sterling reputation should not be
    considered as a mitigating circumstance because it was relevant to the
    commission of the fraud.

[39]

Moreover,
    the trial judge found seriously aggravating factors that were not significantly
    attenuated by his findings of mitigating factors.  For the purpose of
    empire-building, Mr. Jafarpour orchestrated and furthered the large-scale
    misappropriation of public funds over an extended period during which he
    continued to receive significant remuneration as SISOs director and chief
    executive officer because of SISOs apparent good shape. Mr. Jafarpour engaged
    in additional deceit and dishonesty to cover up the fraud and misled the
    auditors
. His actions materially contributed to
    the bankruptcy of SISO and the resulting emotional and financial damage to its
    many employees and contractors. While certainly entitled to proceed to trial,
    Mr. Jafarpour did not have the mitigating benefit of a guilty plea.

[40]

The
    trial judge imposed a sentence that departed inexplicably and significantly
    from the contemplated range. The two-year sentence represented a 50% deviation
    from the lowest end of the established range for large-scale frauds and was
    inconsistent with his own findings of seriously aggravating factors about Mr.
    Jafarpours conduct and the nature of the fraud in this case. His own findings required
    a longer penitentiary sentence than the two years imposed to properly reflect
    the principle of proportionality and the important purposes of general
    deterrence and denunciation.

[41]

The
    trial judges findings that there was no breach of trust towards CIC and likely
    no substantial unrecovered losses do not serve as distinguishing individual features
    that could support the two-year sentence imposed.

[42]

In
Khatchatourov
, this court rejected the argument that the three-to-five-year
    sentencing range for major frauds is reserved for frauds involving a breach of
    trust and significant losses. At para. 39, MacPherson J.A. for the court writes:

The
    four-year custodial sentences imposed are within the appropriate range for this
    large-scale, sophisticated fraud, even though the appellants were not in a
    position of trust with the financial institutions or, in a legal sense, with
    all of the personal victims, and the consequences for the primary victim  the
    public purse  were not "devastating".

[43]

The
    same aggravating conduct that underlies and informs the aggravating nature of
    breaches of trust are present here.  While Mr. Jafarpour may not have strictly
    been in a position of trust in relation to CIC, there can be no question, as
    the trial judge found, that Mr. Jafarpour blatantly abused his position as the
    director and chief executive officer of a non-profit organization and breached
    the good faith of CIC.

[44]

That
    CIC was successful in recouping most if not all its losses does not justify a
    sentence outside the sentencing range:
Drabinsky
, at para. 5. Fraud on
    government is not a victimless crime, as it takes money from the public
    purse and from all those who rely on it:
Khatchatourov
, at para.
    44. As the trial judge noted in this case, CIC also incurred considerable expense
    to carry out the forensic audits that uncovered the extent of the fraud.

[45]

As
    the Quebec Court of Appeal succinctly noted in
R. v. Coffin
, 2006 QCCA
    471, 210 C.C.C. (3d) 227, at para. 46, which involved the infamous sponsorship
    scandal fraud against the government:

The fallacious argument that stealing
    from the government is not really stealing cannot be used to downplay the
    significance of this crime. The government of the country has no assets itself;
    rather, it manages sums common to all of its citizens. Defrauding the
    government is equivalent to stealing from one's fellow citizens.

[46]

In
    my view, the circumstances of this case invoke aggravating factors for fraud
    set out in s. 380.1(1) of the
Criminal Code
including that the magnitude and duration of the
    fraud were significant
, Mr. Jafarpour took advantage of his high
    regard in the community, and he tried to conceal records of the fraud. While
    the fraud did not directly involve the 150 employees of SISO, as the trial
    judge found, Mr. Jafarpour had to take his share of blame for the demise of
    SISO and the unemployment of its employees. As the trial judge also acknowledged,
    under s. 380.1(2), he was not to consider as mitigating circumstances Mr.
    Jafarpours employment, employment skills or status or reputation in the
    community because those circumstances were relevant and contributed to the
    commission of the offence.

[47]

In these circumstances, even based on the case law
    proffered by Mr. Jafarpour, the two-year sentence, without explanation, fell
    well below the appropriate sentencing range for similar large-scale frauds
    that, as a norm, is a penitentiary sentence of at least three years. The
    two-year sentence represents a 50% deviation from the bottom of the established
    range.  The sentence did not reflect the predominant sentencing principle of proportionality
    because it failed to adequately take account of
the
    sentences typically imposed for large-scale frauds committed in similar
    circumstances as well as the individual circumstances of this particular case
. As a result, mindful of the great deference owed to
    the trial judges exercise of his discretion, I am nevertheless of the view
    that the sentence is demonstrably unfit and should be increased.

[48]

In
    my view, having regard to the particular circumstances of this case, the
    appropriate global custodial sentence would be four years. Deducting the two
    years already served, this would leave Mr. Jafarpour with two years to be
    served.

(ii)

Is
    re-incarceration in the interests of justice?

[49]

Mr.
    Jafarpour submits that given the long passage of time and his rehabilitative
    efforts, he should not be re-incarcerated to serve the two years remaining in
    his sentence. According to Mr. Jafarpour, re-incarceration is not necessary for
    the purposes of general deterrence and denunciation and will not serve the
    other principles of sentencing.

[50]

This
    court has generally been reluctant to re-incarcerate an offender who has served
    the sentence originally imposed and has been released into the community:
Leo-Mensah
,
    at para. 15;
R. v. F. (D.G.)
, 2010 ONCA 27, 98 O.R. (3d) 241, at para.
    33. Factors such as delay and an offenders meaningful progress in the
    community may militate against re-incarceration:
F. (D.G.)
, at para.
    33. The court must consider whether the principles of denunciation and
    deterrence require re-incarceration or whether the community is best protected
    if the offender continues along the rehabilitative path that he has followed
    since his release from custody:
R. v. Smickle
, 2014 ONCA 49, 306
    C.C.C. (3d) 351, at para. 20. I also recognize that re-incarceration imposes a
    considerable additional hardship:
R. v. Inwood
(1989), 48 C.C.C. (3d)
    173 (Ont. C.A.), at p. 184. The overarching issue is whether re-incarceration
    is in the interests of justice: see
R. v. Cheng
(1991), 50 O.A.C. 374 (C.A.), at para.
5
;
R. v.
    Boucher
(2004), 186 C.C.C. (3d) 479 (Ont. C.A.), at para.
33.

[51]

The
    delay in this case is concerning. It cannot all be laid at the Crowns feet.
    Rather, Mr. Jafarpours actions account for most of the delay: he filed his
    notice of appeal in the inmate appeals stream in December 2013, over a month and
    a half later than his co-accused; he sought and was granted an extension of
    time to appeal in May 2014, more than eight months following his convictions
    and seven months following the Crowns appeal against sentence; he raised and
    then abandoned an application for counsel under s. 684 of the
Criminal Code
;
    he sought decryption of Hard Drive B; and he pursued the ground of ineffective assistance
    of counsel which, even with case management by this court, took almost three
    years to process. I also note that in February 2015, Mr. Jafarpour firmly
    rejected the Crowns suggestion that the sentence appeal be heard before the
    conviction appeal. While Mr. Jafarpour had every right to take these positions
    and advance these issues on appeal, he cannot then rely on the long delay of
    his own creation as a bar to re-incarceration when it would be otherwise in the
    interests of justice.

[52]

That
    said, I do not believe that re-incarceration would be in the interests of
    justice in the circumstances of this case. In my view, the principles of
    denunciation and general deterrence do not require re-incarceration and the
    public is best protected if Mr. Jafarpours rehabilitative path remains
    uninterrupted. I say this for the following reasons.

[53]

First,
    the relatively short amount of time that Mr. Jafarpour would serve in custody before
    full parole would not be required to advance the principles of denunciation and
    deterrence and could harm Mr. Jafarpours rehabilitative efforts. Mr. Jafarpour
    was released on full parole in 2014 after spending about eight months in
    custody. Given his impeccable behaviour while in custody and since his release,
    Mr. Jafarpour would again likely be released after serving eight months of the
    additional two years of his sentence. He is the main breadwinner for his family
    and re-incarceration would cause them great hardship.

[54]

Mr.
    Jafarpour is firmly on the path to rehabilitation and is highly unlikely to
    re-offend. He was a first-time offender and is now 59 years old. Trained as a
    medical doctor and a refugee from his home country where he suffered
    persecution, he re-established himself in this country and devoted himself to
    serving other refugees and new immigrants. The letters of support submitted on
    his behalf glowingly recount his many achievements, not the least of which is
    his familys adoption of two orphaned children. However, his criminal actions
    have eclipsed his previous legitimate and considerable personal and community
    achievements, including through SISO. His former sterling reputation is in
    tatters. While he orchestrated this large-scale fraud and reaped the prestige
    and benefits from leading a large non-profit corporation, it does not appear
    that Mr. Jafarpour profited from his actions in the same way that others did
    who were involved in the fraudulent scheme. Importantly, Mr. Jafarpour has steadily
    progressed in his rehabilitation, remaining steadily employed, and has not
    re-offended or otherwise stumbled in any way during the significant period that
    has elapsed since his release.

[55]

Having
    balanced all these factors, I am of the view that re-incarceration would not be
    in the interests of justice in this case.

[56]

Accordingly,
    I would grant the Crown leave to appeal sentence and allow the appeal, increase
    the sentence by two years, but stay the execution of the additional sentence.

C.

Disposition

[57]

I
    would dismiss Mr. Jafarpours appeal against his convictions.

[58]

I
    would grant the Crown leave to appeal against sentence, allow the sentence appeal
    and substitute a global custodial sentence of four years. For the reasons
    stated, I would stay the execution of the balance of the sentence of
    incarceration not yet served.

Released: May 2, 2019 KF

L.B.
    Roberts J.A.

I
    agree. K. Feldman J.A.

I
    agree. Fairburn J.A.

[1]
SISOs auditor, Tony De Luca, testified that the revenue and expenses that SISO
    claimed in 2008, 2009, and 2010 resulted in a surplus of $2.9 million. In his
    report, dated September 13, 2013 the exact figure is $2,954,196. Mr. De Luca
    was unable to opine as to CICs actual loss. He measured in each fiscal year
    from 2008 to 2010 the surplus SISO actually received by overclaiming, which may
    have resulted in a more conservative measurement of the fraud. For fiscal year 2010,
    Mr. De Luca calculated the surplus as $503,661. By examining the expenses,
    forensic accountant, Scott McBride, measured in just fiscal year 2010 the
    amount SISO claimed for reimbursement against actual expenses as $1.2 million.
    SISOs trustee in bankruptcy, Bradley Newton, testified at the sentencing
    hearing that CIC filed a proof of claim for $2.49 million and that SISOs
    claims against CIC for payment of legitimate invoices from 2010 totalled
    $2,052,000. CIC determined that $250,000 of SISOs claims were ineligible and
    refused to pay them in order to recoup the monies fraudulently overbilled by
    SISO. The trial judge accepted that 80% of SISOs revenues came from CIC and
    that most but not all the surplus could therefore be attributed to the fraud.
    Eighty percent of the $2,954,196 surplus that accrued over the period from 2008
    to 2010 equals $2,363,356.80.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dhaliwal, 2019 ONCA 398

DATE: 20190514

DOCKET: C64902

MacPherson, Juriansz and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jagdeep Dhaliwal

Appellant

Jagdeep Dhaliwal, in person

Brian Snell, duty counsel

Jessica Smith Joy, for the respondent

Heard: May 9, 2019

On appeal from the sentence imposed on January 18, 2018
    by Justice Janet M. Wilson of the Superior Court of Justice, sitting with a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant abandons his conviction appeal.

[2]

On the sentence appeal, the Crown concedes that the facts underlying the
    firearms offences in this case are not as serious as those in
R. v. Danvers
,
    (2005), 199 C.C.C. (3
rd
) 490 (Ont. C.A.), and similar cases that
    establish a 7 to 11 year range for serious gun related offences. In light of
    this, and recognizing that the
Criminal Code
minimum sentence is a
    serious minimum (5 years), we are of the view that the sentencing judge erred
    by imposing a 7 year sentence.

[3]

Reviewing all of the facts relating to the firing of a single bullet
    into a hallway ceiling between, but not in, stores and apartments in a small
    strip mall building, we are inclined to reduce the appellants sentence by a
    modest amount.

[4]

The sentence appeal is allowed and the 7-year concurrent sentence
    for the firearms offences, and the verbally threaten bodily harm offence, is
    reduced to 6 years, for a global sentence of 7 years.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gerson-Foster, 2019 ONCA 405

DATE: 20190516

DOCKET: C64645

Feldman, Paciocco and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tafari Gerson-Foster

Appellant

Andrew Stastny and Adam Little, for the appellant

Rob Morin and Erin Carley, for the respondent

Heard: February 12, 2019

On appeal from the convictions entered by Justice Beverly A. Brown of the Ontario Court of Justice on June 28, 2017, with reasons reported at 2017 ONCJ 609.

Paciocco J.A.:

OVERVIEW

[1]

Tafari Gerson-Foster was ostensibly arrested on a surety warrant. That
    arrest led to a pat down search incident to arrest, and a subsequent strip
    search. Each of the searches produced evidence that supported the convictions
    that Mr. Gerson-Foster now appeals, namely, possession of cocaine for the
    purposes of trafficking contrary to
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19., s. 5(2), and possession of proceeds of an indictable
    offence, contrary to
Criminal Code
, R.S.C. 1985, c. C-46, s. 354(1).

[2]

In fact, the surety warrant relied upon to arrest Mr. Gerson-Foster was
    no longer in force. A judge presiding at a remand appearance [the administrative
    judge] had rescinded the surety warrant more than a month before Mr.
    Gerson-Fosters arrest. The Canadian Police Information Centre (CPIC) had not
    been updated to reflect this, as it should have been.

[3]

At his trial, Mr. Gerson-Foster sought the exclusion of the evidence
    required for his convictions. Of relevance to this appeal, he argued that ss. 8
    and 9 of the
Charter

were violated. The trial judge disagreed. She
    held that the surety warrant had not been properly addressed by the administrative
    judge, and was therefore still in effect when Mr. Gerson-Foster was arrested.
    She also held that the strip search of Mr. Gerson-Foster was lawful and
    therefore reasonable. She therefore dismissed the
Charter

application.

[4]

Mr. Gerson-Foster appeals the trial judges ss. 8 and 9 rulings, and
    asks this court to exclude the evidence and acquit him.

[5]

For the reasons that follow, I would allow the appeal and substitute a
    verdict of acquittal on both charges.

THE MATERIAL FACTS

[6]

On May 4, 2015, after a short period of pre-trial incarceration on an
    assault charge, Mr. Gerson-Foster was released on a recognizance with consent
    of the Crown. His sister, Sachanna Gerson, was his surety.

[7]

Things did not go well. On November 3, 2015, Sachanna Gerson applied to
    be relieved of her surety obligation. An order for committal [surety warrant]
    was issued authorizing peace officers to arrest Mr. Gerson-Foster, and bring
    him into custody.

[8]

On November 4, 2015, the surety warrant was entered on CPIC, a national
    electronic database accessible to peace officers.

[9]

By November 18, 2015, the date set for Mr. Gerson-Fosters next remand
    court appearance on the assault charge, he had not yet been arrested on the
    surety warrant. He arranged to attend to the surety warrant during that
    appearance. His mother, Carla Gerson, who had agreed to act as his new surety,
    accompanied him to Old City Hall courthouse to facilitate a surety substitution,
    and Mr. Gerson-Fosters lawyer raised the matter with the remand Crown.

[10]

The
    remand Crown agreed that there would be no need to have peace officers arrest
    Mr. Gerson-Foster on the surety warrant, and that he could appear before a Judge
    in the Ontario Court of Justice practice and procedure court [administrative court]
    for the surety substitution. The administrative Crown and Mr. Gerson-Fosters
    lawyer asked the administrative judge for the surety substitution and to deem
    the warrant executed.

[11]

Mr.
    Gerson-Fosters counsel alerted the administrative judge that a new bail order
    would be needed since Sachanna Gerson was named on the existing recognizance. The
    administrative judge said, Ive got to get a brand new bail then. She said
    that she would note that the surety warrant was executed, saying to Mr.
    Gerson-Foster, [t]echnically, youre in custody right now, sir. She told the
    parties that the new recognizance would have to be done before her because
    hes in custody.

[12]

Mr.
    Gerson-Fosters counsel asked whether Mr. Gerson-Foster could just remain
    seated in the body of the court, and the administrative judge agreed, [y]eah,
    he can just sit on the bench here.

[13]

Shortly
    after, the administrative Crown decided that she was not content with one of
    the proposed terms of release. She asked to hold the matter down so she could
    have a recess to talk to the remand Crown who had approved the change. The
    administrative judge agreed, but said of Mr. Gerson-Foster, [s]o he has to
    step into custody then. Mr. Gerson-Fosters counsel sought clarification. The
    administrative judge explained, [w]ell, he has no bail, though. Well, Ive
    just cancelled the bail that was in existence.

[14]

As
    she was about to leave to consult with the remand Crown, the administrative
    Crown said, [s]o maybe if we just hold the matter down and he stays in the
    body of the court. It is not clear on the record whether Mr. Gerson-Foster
    actually stepped into custody as the administrative judge directed.

[15]

When
    Mr. Gerson-Fosters matter concluded after a brief recess, the administrative
    judge endorsed the application for surety relief as follows: [d]eemed executed
    Nov 18 2015 ext  new bail on consent with added condition below. The added
    condition was handwritten below. This document was attached to the surety
    warrant.

[16]

In
    spite of the administrative judges direction that Mr. Gerson-Foster was
    technically in custody, and her order that the surety warrant was deemed to
    have been executed, no record was uploaded to CPIC confirming that the surety
    warrant was dealt with. Only the new bail release order, mistakenly dated May
    4, 2015 instead of November 18, 2015, was entered on CPIC.

[17]

For
    reasons that will become apparent in this decision, it is not necessary to
    recount in its totality the evidence the trial judge heard about how the
    administrative judges order failed to be recorded. Suffice it to say that the
    procedure followed in this case was unfamiliar.

[18]

Typically,
    surety warrants are executed by a police arrest of the subject, and the
    arresting officers are responsible for the removal of the warrant from CPIC. Since
    Mr. Gerson-Foster was never arrested, no one directly assumed the
    responsibility for removing the surety warrant.

[19]

As
    well, since there was no arrest, no certificate of committal was generated.
    This is where the execution of a surety warrant is typically endorsed by the
    judge. In this case, when the court staff scanned and sent the court documents
    to the Toronto police office in the courthouse so that the documents could be
    uploaded to the versadex record keeping system, and then onto CPIC, the
    administrative judges endorsement relating to the surety warrant was missed.

[20]

This
    omission was not caught by the backup system, in which court officers record
    the dispositions made in court. The court officer assigned to the
    administrative judges courtroom thought a surety substitution was occurring,
    and missed that the administrative judge had dealt with the surety warrant.

[21]

CPIC
    therefore continued to show an outstanding surety warrant for Mr.
    Gerson-Fosters arrest.

[22]

On
    the evening of December 22, 2015, there was a shooting in the Lawrence Heights
    area. The next day, Det. Cst. Jackson, who was investigating the shooting,
    briefed Csts. Kim and Sharma that Gerson Tafari was known to be in the area,
    that he was wanted on a surety warrant, and that they should arrest him. At
    12:55 p.m. the next day, Csts. Kim and Sharma encountered Mr. Gerson-Foster and
    Cst. Kim arrested him pursuant to the surety warrant.

[23]

A
    pat down search of Mr. Gerson-Foster was conducted incident to that arrest. Approximately
    five grams of marijuana was discovered in a zip lock bag, along with $3,495.00.
    Neither constable re-arrested Mr. Gerson-Foster after these items were located.

[24]

An
    audio recording was taken inside of the police car immediately after the
    arrest. At approximately 1:05 p.m., Mr. Gerson-Foster told the constables that
    he had entered a new bail, and that the surety warrant was no longer in effect.
    He asked the constables to read it in the system. Cst. Sharma checked using
    the mobile work station computer and confirmed that the surety warrant was on
    CPIC. Mr. Gerson-Foster asked, [h]ow long does it take for stuff to process?
    Cst. Kim answered, [s]ometimes it can take a while, man.

[25]

Cst.
    Kim would later testify that while CPIC is generally reliable, he has had past
    experiences where CPIC had not been updated in a timely manner. He said that
    there have been times when he has effected an arrest based on information that
    should not have been on CPIC, only to learn subsequently that the information was
    incorrect. He testified that he was aware of other means that can be used to
    check the accuracy of CPIC information, including calling the division holding
    the warrant, or calling the records management department.

[26]

Initially,
    Cst. Sharma could not recall whether he had any plans to look further into the
    status of the surety warrant. He ultimately agreed that Mr. Gerson-Foster was
    told repeatedly that the surety warrants status would be looked into when they
    arrived at the station.

[27]

Upon
    arrival at the police station, Mr. Gerson-Foster again raised objection to
    having been arrested on the surety warrant. Cst. Sharma testified that when Mr.
    Gerson-Foster complained that the surety warrant had been dealt with on his
    last court date, Cst. Sharma said, [i]f you have any issues, we can go
    upstairs [to the interview room]. Once were upstairs, well, well deal with
    it.

[28]

Csts.
    Kim and Sharma escorted Mr. Gerson-Foster to the booking desk by 1:38 p.m. The
    booking desk was staffed by Sgt. Vendramini. Cst. Kim did not recall whether he
    advised anyone at the station of Mr. Gerson-Fosters concerns, and Cst. Sharma
    said that while it would have been possible for him to have briefed the sergeant
    at the booking desk, he did not do so because he trusted the information he had
    about the surety warrant.

[29]

Mr.
    Gerson-Foster complained to Sgt. Vendramini that there was a new surety in
    place, and that he had already gone to court on the warrant. Sgt. Vendramini assured
    Mr. Gerson-Foster that the detectives are gonna have to look into that then  theyll
    look into it thoroughly.

[30]

At
    1:50 p.m., Sgt. Vendramini authorized a Level 3 search (a strip search) to be
    done. Without anyone looking into the status of the surety warrant, Csts. Kim
    and Sharma conducted that strip search in one of the upstairs interview rooms.
    Specifically, Mr. Gerson-Foster was made to squat, naked. When he did so, a bag
    containing 13.22 grams of cocaine fell from his buttocks. The constables took
    the narcotics with them and turned them over to another officer, leaving Mr.
    Gerson-Foster in the interview room.

[31]

Cst.
    Figlarz was subsequently given charge of Mr. Gerson-Foster, who he understood
    to be detained on a surety warrant. He entered the interview room and asked Mr.
    Gerson-Foster if he wanted to speak to a lawyer. Although no one testified
    directly to this, it can be inferred from what transpired that Mr.
    Gerson-Foster told Cst. Figlarz that the surety warrant was no longer in force.
    Mr. Gerson-Foster gave Cst. Figlarz his lawyers name. Cst. Figlarz could not
    reach the lawyer, but left a message at 2:23 p.m. The lawyer called back at
    3:34 p.m. and advised Cst. Figlarz that the surety warrant had indeed been
    dealt with in court. The lawyer undertook to email the details to Cst. Figlarz.
    It is not clear whether this was done, but Cst. Figlarz contacted Old City Hall
    to speak to someone who had access to ICON, the courts computer system, to
    inquire into the validity of the warrant. He was able to confirm that, indeed,
    the surety warrant had been brought forward and dealt with in court on November
    18, 2015.

[32]

Cst.
    Figlarz agreed that had it been known before the strip search occurred that the
    surety warrant had been dealt with, Mr. Gerson-Foster would have been released
    unconditionally. Instead, he was held in the interview room until 8:30 p.m.,
    when he was lodged in the cells, and then charged with the two offences under
    appeal.

THE TRIAL

[33]

Mr.
    Gerson-Fosters trial was a
Charter

trial. Through his
    counsel, he made it known early that if his
Charter

application
    to exclude the evidence failed, he would not contest the charges.

[34]

Of
    relevance, Mr. Gerson-Fosters
Charter

application alleged that
    his ss. 8 and 9 rights were violated.

[35]

Mr.
    Gerson-Fosters s. 9 argument related to the alleged negligence of the Toronto police
    in failing to update CPIC, leading to Mr. Gerson-Fosters arrest on a surety
    warrant that had already been executed.

[36]

In
    rejecting that
Charter

challenge, the trial judge agreed with
    submissions made by the Crown. The trial judge concluded that the surety
    warrant was still in force when Mr. Gerson-Foster was arrested, because the
    administrative judge had not followed a valid legal procedure when she
    purported to deem the warrant to have been executed.

[37]

Mr.
    Gerson-Fosters s. 8 arguments fared no better. His first argument hinged on
    his claim that since the arrest was unlawful, the initial pat down search
    incident to the arrest was also illegal and therefore unreasonable. The trial
    judge, having accepted that the arrest was lawful, rejected this challenge.

[38]

Mr.
    Gerson-Fosters second s. 8 argument urged that the strip search was
    unreasonable, contrary to the
R. v. Golden
, 2001 SCC 83, [2001] 3
    S.C.R. 679,

requirement that the purpose for the search must relate to
    the purpose or reasons for the arrest. Since Mr. Gerson-Foster was arrested
    only on a surety warrant, and not for possession of narcotics, the purpose for
    the arrest provided no basis for strip searching him for narcotic contraband.

[39]

The
    trial judge rejected this
Charter

claim as well, commenting
    that it is important to distinguish between strip searches immediately
    incident to arrest, and strip searches related to safety issues in a custodial
    setting. The trial judge accepted that since Mr. Gerson-Foster had to go into
    the prison population to await a show cause hearing for a new recognizance, the
    strip search for contraband was reasonable and related to the purpose for his
    arrest. In support, she relied upon the fact that during the initial pat down
    search upon arrest, Mr. Gerson-Foster was found to have been in possession of
    marijuana.

THE ISSUES

[40]

Several
    issues were raised on appeal. The issues can be described conveniently as
    follows:

A.

The s. 9 breach: Did
    the trial judge err in finding that the surety warrant was in force when Mr.
    Gerson-Foster was arrested?

B.

The s. 9 breach: If
    the surety warrant was not in force, can the Crown justify the arrest based on
    reasonable grounds?

C.

The s. 8 breaches: Did
    the trial judge err in finding that the pat down search was reasonable, as
    incidental to a lawful arrest?

D.

The s. 8 breaches: Did
    the trial judge err in finding that the strip search was reasonable?

E.

The remedy: If any of
    the
Charter

challenges succeed, should this court exclude the
    evidence obtained?

[41]

Counsel
    for Mr. Gerson-Foster also contended during oral argument that the strip search
    was conducted in an unreasonable manner, due to the fact that Mr. Gerson-Foster
    was completely nude at the time of the search. Since this issue was not raised
    at trial or in the appeal documents, and it is not necessary to resolve this
    matter to determine this appeal, I will not address it.

ANALYSIS

A.

The section 9
    breach: Did the trial judge err in FINDING THAT THE SURETY WARRANT WAS IN FORCE
    WHEN Mr. GERSON-FOSTER WAS ARRESTED?

(1)

The Error Conceded

[42]

The
    Crown maintains that the administrative judges order relating to the surety
    warrant was made without jurisdiction, since the procedure used was at odds
    with the process required by
Criminal Code
, s. 766. In spite of this, the
    Crown conceded before us that the trial judge erred in finding that the surety
    warrant was in force when Mr. Gerson-Foster was arrested. The Crown accepts
    that orders made without jurisdiction remain in force until validly challenged
    and set aside:
R. v. Raponi
, 2004 SCC 50, [2004] 3 S.C.R. 35, at
    paras. 34, 41. In this case, perhaps because the Crown joined in inviting the
    administrative judge to proceed as she did, the Crown never challenged the
    validity of the administrative judges order.

[43]

Strictly
    speaking, it is therefore unnecessary to consider whether the trial judge was
    correct in finding that the administrative judge failed to comply with the
    relevant surety release provisions. In my view, it is nonetheless important to
    address the validity of the administrative judges order. This issue was fully
    argued before us, and the process and its propriety continue to bear on the
    arbitrary detention issue that remains before us.

[44]

I
    therefore intend to address whether the administrative judge acted properly in
    making the order that she did. In my view she did, and the trial judge erred in
    holding otherwise.

(2)

The Statutory Provisions

[45]

The
    relevant provisions of the
Criminal Code
dealing with both surety
    warrants and surety substitutions are as follows:

Render of accused by
    sureties

766(1)
A surety for
    a person who is bound by recognizance to appear may, by an application in
    writing to a court, justice or provincial court judge, apply to be relieved of
    his obligation under the recognizance, and the court, justice or provincial
    court judge shall thereupon issue an order in writing for committal of that
    person to the prison nearest to the place where he was, under the recognizance,
    bound to appear.

Arrest

(2)
An order under
    subsection (1) shall be given to the surety and on receipt thereof he or any
    peace officer may arrest the person named in the order and deliver that person
    with the order to the keeper of the prison named therein, and the keeper shall
    receive and imprison that person until he is discharged according to law.

Certificate and entry of
    render

(3)
Where a court,
    justice or provincial court judge issues an order under subsection (1) and
    receives from the sheriff a certificate that the person named in the order has
    been committed to prison pursuant to subsection (2), the court, justice or
    provincial court judge shall order an entry of the committal to be endorsed on
    the recognizance.

Discharge of sureties

(4)
An endorsement
    under subsection (3) vacates the recognizance and discharges the sureties.

Render of accused in court
    by sureties

767
A surety for a
    person who is bound by recognizance to appear may bring that person into the
    court at which he is required to appear at any time during the sittings thereof
    and before his trial and the surety may discharge his obligation under the
    recognizance by giving that person into the custody of the court, and the court
    shall thereupon commit that person to prison until he is discharged according
    to law.

Substitution of surety

767.1(1)
Notwithstanding subsection 766(1) and section 767, where a surety for a person
    who is bound by a recognizance has rendered the person into the custody of a
    court pursuant to section 767 or applies to be relieved of his obligation under
    the recognizance pursuant to subsection 766(1), the court, justice or
    provincial court judge, as the case may be, may, instead of committing or
    issuing an order for the committal of the person to prison, substitute any
    other suitable person for the surety under the recognizance.

(2)
Where a person
    substituted for a surety under a recognizance pursuant to subsection (1) signs
    the recognizance, the original surety is discharged, but the recognizance and
    the order for judicial interim release pursuant to which the recognizance was
    entered into are not otherwise affected.

Rights of surety preserved

768
Nothing in this
    Part limits or restricts any right that a surety has of taking and giving into
    custody any person for whom, under a recognizance, he is a surety.

Application of judicial
    interim release provisions

769
Where a surety
    for a person has rendered him into custody and that person has been committed
    to prison, the provisions of Parts XVI, XXI and XXVII relating to judicial
    interim release apply, with such modifications as the circumstances require, in
    respect of him and he shall forthwith be taken before a justice or judge as an
    accused charged with an offence or as an appellant, as the case may be, for the
    purposes of those provisions.

(3)

Analysis

(i)

The trial judges reasoning

[46]

In
    her decision, the trial judge reasoned that once the surety warrant was issued
    under s. 766(1), it could only properly be executed by arresting Mr.
    Gerson-Foster and placing him into police custody. Since Mr. Gerson-Foster did
    not go into actual detention and into custody, the procedure required by s.
    766(1) was not followed. The administrative judge therefore did not succeed in
    setting aside the surety warrant.

[47]

The
    trial judge further reasoned that the administrative judges attempt to deem
    the surety warrant to have been executed was also improper, since there is no
    provision for doing so in the case of surety warrants as there is for arrest
    warrants in
Criminal Code
, s. 511(4).

[48]

Finally,
    the trial judge held that the administrative judge proceeded on the basis of a
    surety substitution contemplated by s. 767.1, which improperly ignored the
    fact that there had been a surety warrant for arrest that had already been
    issued, so the court could not proceed on an alternate procedure outlined in s.
    767.1.

[49]

To
    be fair to the trial judge, the process used was unfamiliar and left room for
    confusion, and the material considerations are not without their subtlety.
    However, in my view the trial judge erred in coming to each of these conclusions.

[50]

For
    convenience, I will approach her reasons by beginning with the surety
    substitution issue.

(ii)

The administrative judge did not order a surety substitution

[51]

In
    my view, the administrative judge did not err by ordering an improper surety
    substitution, as the trial judge held. As the term suggests, a surety
    substitution is an order that substitutes one surety for another under an existing
    recognizance. This is not what the administrative judge did. She made it clear
    that she was cancelling the existing recognizance, treating the surety warrant
    as having been executed, and issuing an entirely new judicial interim release
    order. The fact that the administrative judge changed a term of the recognizance
    is also inconsistent with a surety substitution having been ordered. She did
    not order an improper surety substitution. She issued a new judicial interim release
    order.

[52]

I
    must also comment on the trial judges conclusion that once a surety warrant
    has been issued, a surety substitution is no longer possible. The trial judge
    relied on
R. v. Smith
, 2013 OSNC 1341, at para. 41, for that
    proposition. In my view,
Smith

does not support it. In
Smith
,

the surety warrant for arrest was not simply issued. It had been executed
    and the accused had been committed to custody. As a result of Mr. Smiths
    incarceration, Dambrot J. deemed the recognizance to have been vacated. There
    was therefore no recognizance left on which to make a surety substitution. Simply
    put, it is the committal to prison of the accused that makes a surety
    substitution impossible, not the issuance of a surety warrant.

[53]

One
    final point about surety substitutions. During oral argument, Mr.
    Gerson-Fosters counsel urged us to recognize that the administrative judge
    could simply have ordered a surety substitution under s. 767.1. In my view, we
    should not do so. Leaving the more complicated legal questions that arise
    aside, the parties before the administrative judge wanted to add a condition to
    the recognizance. A new recognizance was therefore required. For that reason
    alone, a surety substitution could not have been ordered in this case.

(iii)

The trial judge should not have found that the administrative judge acted
    without lawful authority

[54]

The
    trial judge should not have found that the administrative judge acted without
    lawful authority, thereby failing to succeed in setting aside the surety
    warrant.

[55]

In
    coming to this conclusion, I prefer not to express an opinion on Mr.
    Gerson-Fosters counsels argument that the administrative judge had
    jurisdiction under
Criminal Code
, s. 523(2)(c) to vacate and replace
    the recognizance containing Sachanna Gersons surety. That is not the procedure
    the administrative judge purported to use.

[56]

In
    any event, it is not necessary to consider s. 523(2)(c). In the unusual
    circumstances of this case, the trial judge should have proceeded on the basis
    that the surety release provisions were satisfied.

[57]

I
    agree with the trial judge that the surety release provisions do contemplate that
    the accused will be detained and placed into police custody before a surety
    release occurs. According to the relevant provisions, unless a surety substitution
    is going to be ordered under s. 767.1, the accused is to be committed to
    prison. The judicial release hearing that follows under s. 769 also
    contemplates that the accused will have been committed to prison.

[58]

However,
    different modes of achieving the committal of the person to prison are recognized
    in the relevant sections.

[59]

Section
    767 describes the committal to prison being achieved by judicial order. After
    the accused attends before the court and is rendered into the custody of the
    court by the surety, the accused is subsequently committed to prison.

[60]

The
    provisions in ss. 766(2)  766(4) contemplate expressly the arrest and
    imprisonment of the accused pursuant to a surety warrant, and then being
    committed to prison.

[61]

In
    my view, while imprisonment is a requirement of a proper s. 766(1) release, a
    formal arrest is not. Section 766(2) provides that where a surety warrant
    order has been made, a peace officer
may
arrest the person named in the
    order (emphasis added). It therefore authorizes but does not require an
    arrest. An arrest is an available mode of securing the committal to prison of
    the person named in the order, but an arrest does not establish jurisdiction. So
    long as the person named in the order is committed to prison, including by
    surrendering into custody without the formalities of an arrest, an s. 766(1)
    surety release is appropriate.

[62]

I
    do not read the trial judge as disagreeing with any of this. The errors I
    believe she made relate not to her understanding of these provisions, but to
    the findings she arrived at.

[63]

First,
    although of less significance, the trial judge erred in finding that Mr.
    Gerson-Foster was never placed into actual detention. A finding that Mr.
    Gerson-Foster was detained necessarily follows from the facts found by the
    trial judge. As she noted, the administrative judge told Mr. Gerson-Foster that
    he was technically in custody. At that point he was no longer free to leave.
    Contrary to the trial judges conclusion, Mr. Gerson-Foster was actually
    detained.

[64]

More
    importantly, the trial judge should not have found that the administrative
    judge failed to follow proper procedure because Mr. Gerson-Foster was not placed
    into police custody. Subsequent to telling Mr. Gerson-Foster that he was
    technically in custody, the trial judge directed that Mr. Gerson-Foster has to
    step into custody. This clearly meant the prisoners box.

[65]

As
    the trial judge noted, it cannot be determined on the record whether Mr.
    Gerson-Foster actually entered the prisoners box, or remained in the body of
    the court. I will therefore address both possibilities.

[66]

Assuming
    that Mr. Gerson-Foster entered the prisoners box as directed, he would have
    been placed in the charge of the peace officers responsible for the courthouse
    lockup, without a bail release order in effect. If his bail hearing could not be
    completed at that time for any reason, he would have remained in custody until
    released, likely in a police station cell. In my view, he would therefore have
    been imprisoned immediately upon being placed in the prisoners box. This would
    have satisfied s. 766(2)s requirement that he be received by the keeper of the
    prison, and s. 766(3)s requirement that he be committed to prison.

[67]

Even
    if Mr. Gerson-Foster never entered the prisoners box, the trial judge should
    not have relied upon the absence of police custody to impugn the administrative
    judges order in this case. This is because after the administrative judge
    directed Mr. Gerson-Foster to enter the prisoners box, the Crown interjected suggesting
    that Mr. Gerson-Foster should remain in the body of the court. In these
    circumstances, it was unfair for the Crown to challenge the legality of the
    administrative judges order during the
Charter voir dire
on the basis
    that Mr. Gerson-Foster was not put into police custody. In my view, the trial
    judge should not have done so either. By relying on the absence of actual
    imprisonment, she indirectly enabled the Crown to benefit during the
Charter
    voir dire
from an argument that was not fair for the Crown to rely upon.

[68]

In
    sum, whether or not Mr. Gerson-Foster actually went into the prisoners box,
    the trial judge should not have relied upon the absence of police custody as a
    basis for finding the administrative judges order to be ineffective. The
    administrative judges entitlement to vacate the initial recognizance and to discharge
    Sachanna Gerson should have been recognized by the trial judge, even leaving
    aside the concession the Crown made before us. The trial judge erred in failing
    to do so.

(iv)

The administrative judge effectively rescinded the surety warrant

[69]

I
    am also persuaded that the administrative judge had the authority to rescind
    the surety warrant once she vacated the recognizance that imposed the surety obligations
    on Sachanna Gerson. The whole point of the surety warrant was to place Mr.
    Gerson-Foster into custody in order to relieve Sachanna Gerson of those obligations,
    and to enable his interim release status to be re-evaluated. Those concerns
    became moot once the administrative judge vacated and replaced the initial recognizance.

[70]

It
    is noteworthy that none of the surety release provisions address the judicial
    authority to rescind. In my view, the power to do so arises from the inherent
    jurisdiction of superior court judges, and from the administrative judges
    inherent authority as a provincial court judge to administer justice fully and
    effectively:
Ontario v. Criminal Lawyers Association of Ontario
, 2013
    SCC 43, [2013] 3 S.C.R. 3, at para. 112. Had the administrative judge not rescinded
    the warrant, its continued existence would do nothing other than pointlessly
    imperil Mr. Gerson-Fosters liberty.

[71]

Nor
    am I am troubled by the administrative judges use of the phrase deemed executed
    to describe why the surety warrant was no longer in effect. Even if she
    misspoke by using the term, the administrative judges intent was clear. The
    surety warrant was rescinded, of no further force or effect.

(4)

Conclusion

[72]

The
    trial judge erred in finding the surety warrant was in force when Mr.
    Gerson-Foster was arrested. There was no valid warrant to support his arrest.

B.

The section 9 breach: Can the Crown justify the arrest based on
    reasonable grounds?

[73]

The
    Crown contends that despite the fact that the trial judge erred in treating the
    surety warrant as in effect at the time of the arrest, Mr. Gerson-Fosters
    detention was constitutionally valid because Cst. Kim had reasonable grounds
    for his arrest. In the circumstances of this case, I disagree.

(1)

The Relevant Legal Principles

[74]

Section
    9 of the
Charter
provides that everyone has the right not to be
    arbitrarily detained or imprisoned. The arbitrariness of a detention turns on
    its legality. As McLachlin C.J. and Charron J. explained in
R. v. Grant
,
    2009 SCC 32, [2009] 2 S.C.R. 353, at para. 54:

Section 9 serves to protect individual liberty against unlawful
    state interference. A lawful detention is not arbitrary within the meaning of
    s. 9, unless the law authorizing the detention is itself arbitrary. Conversely,
    a detention not authorized by law is arbitrary and violates s. 9. [Citations
    omitted.]

[75]

In
    order to defeat Mr. Gerson-Fosters s. 9 claim, the Crown has to prove that Mr.
    Gerson-Fosters arrest was lawful. Ordinarily it would have been Mr.
    Gerson-Fosters burden, as the
Charter

claimant, to prove his
    arrest to have been unlawful, but Mr. Gerson-Foster has also brought an s. 8
    claim against the warrantless searches that were conducted. Warrantless
    searches are presumptively unreasonable, and where, as here, the Crown seeks to
    rebut that presumption by claiming a search was lawfully conducted incident to an
    arrest, the Crown must show that the arrest was lawful:
R. v. Fearon
,
    2014 SCC 77, [2014] 3 S.C.R. 621, at para. 87. In order to avoid inconsistent
    outcomes on the same issue because of conflicting burdens, where the arrest the
    Crown is relying upon to justify the search incident to arrest is subject to an
    s. 9 challenge, the Crown will carry the burden on both of the overlapping ss. 8
    and 9 claims and must prove that the arrest was legal:
R. v. Lee
, 2017
    ONCA 654, 351 C.C.C. (3d) 187, at paras. 82-83;
R. v. Brown
(1996), 47
    C.R. (4th) 134 (Ont. C.A.);
R. v. Besharah
, 2010 SKCA 2, 251 C.C.C.
    (3d) 516, at paras. 32-35.

[76]

In
    this case, the Crown relies upon
Criminal Code
, s. 495(1)(c) to
    support the legality of Mr. Gerson-Fosters arrest. Pursuant to s. 495(1)(c),
    an arrest will be legal where the arresting officer has reasonable and probable
    grounds to believe that an arrest warrant is in force. Section 495(1)(c)
    provides:

Arrest without warrant by
    peace officer

495 (1)
A peace
    officer may arrest without warrant

(c)
a person in
    respect of whom he has reasonable grounds to believe that a warrant of arrest
    or committal, in any form set out in Part XXVIII in relation thereto, is in
    force within the territorial jurisdiction in which the person is found.

[77]

In
R. v. Storrey
, [1990] 1 S.C.R 241, at pp. 250-251, Cory J. explained what
    is required:

[A]n arresting officer must
    subjectively have reasonable and probable grounds on which to base the arrest.
    Those grounds must, in addition, be justifiable from an objective point of
    view. That is to say, a reasonable person placed in the position of the officer
    must be able to conclude that there were indeed reasonable and probable grounds
    for the arrest.

[78]

As
    this passage suggests, the relevant inquiry is into the officers grounds and
    the officers basis for those grounds. Put otherwise, an arrest can be
    justified only on the officers subjective purpose for the arrest:
R. v.
    Caslake
, [1998] 1 S.C.R. 51, at paras. 21, 27;
R. v. MacDonald
, 2014
    SCC 3, [2014] 1 S.C.R. 37, at para. 85. And since it is the officers belief
    that must be objectively reasonable, that arrest can be justified objectively solely
    on the facts known to the officer which were available to the officer at the
    time he or she formed the requisite belief:
R. v. Slippery
,

2014 SKCA 23, 433 Sask. R. 183,
    at para. 21;

R. v. Muller
, 2014 ONCA 780, 318 C.C.C. (3d) 539,
    at paras. 36-37;
R. v. Notaro
, 2018 ONCA 449, 47 C.R. (7th) 229, at
    para. 39.

[79]

To
    be clear, the facts relied upon by the officer need not be true. Reasonable
    grounds can be based on [an officers] reasonable belief that certain facts
    exist even if it turns out that the belief is mistaken:
R. v. Robinson
,
    2016 ONCA 402, 336 C.C.C. (3d) 22, at para. 40. This includes an honest but reasonably
    mistaken subjective belief that an arrest warrant relied upon to make an arrest
    is valid:
R. v. Kossick
, 2018 SKCA 55, 365 C.C.C. (3d) 186, at para.
    26.

(2)

The CPIC Entry and Reasonableness

[80]

Here,
    Cst. Kim arrested Mr. Gerson-Foster solely on an outstanding surety warrant. It
    is not contested that subjectively Cst. Kim believed he had reasonable and
    probable grounds to do so. The disagreement before us is with his objective
    grounds.

[81]

The
    Crown contends that even though the surety warrant was no longer in effect, it
    was reasonable for Cst. Kim to rely upon the erroneous CPIC entry as providing
    the reasonable and probable grounds for Mr. Gerson-Fosters arrest. I disagree.
    Although ordinarily the legality of an arrest and detention can be supported by
    a CPIC entry that proves to be erroneous, not in this case.

(i)

Cst. Kim lacked
    objective grounds

[82]

The
    immediate difficulty with this argument is that the Crown has not demonstrated
    that Cst. Kim relied upon CPIC to justify the arrest of Mr. Gerson-Foster. Cst.
    Kims evidence was that he relied upon information provided by Det. Cst.
    Jackson, who told him that Mr. Gerson-Foster was wanted on a surety warrant.
    The only evidence Cst. Kim gave relating to CPIC was that Cst. Sharma checked
    CPIC
after
Mr. Gerson-Fosters arrest. Cst Sharma gave evidence to the
    same effect.

[83]

This
    matters. As explained, Cst. Kims subjective grounds for arrest cannot be found
    to be objectively reasonable based on the fact that the surety warrant was
    still shown to be valid on CPIC, since CPIC was not a basis for Cst. Kims
    subjective belief that he had grounds to arrest Mr. Gerson-Foster. He relied solely
    upon Det. Cst. Jacksons instructions to make the arrest.

[84]

Although
    a police officer is entitled to follow instructions from another officer to
    arrest someone even where the arresting officer personally lacks the objective
    grounds to do so, that arrest will be lawful only if the instructing officer
    had reasonable and probable grounds:
R. v. Debot
, [1989] 2 S.C.R. 1140,
    at pp. 1166-1167;
R. v. Stevenson
, 2014 ONCA 842, 317 C.C.C. (3d) 385,
    at para. 51. Were this not so, an officer without reasonable and probable
    grounds could arrest lawfully on the instruction of another officer without
    reasonable and probable grounds. The law would countenance an arrest without
    anyone having reasonable and probable grounds, an untenable proposition.

[85]

There
    is no evidence in this case capable of showing that Det. Cst. Jackson, the
    instructing officer, had reasonable and probable grounds to believe that there
    was a surety warrant in force authorizing Mr. Gerson-Fosters arrest. Det. Cst.
    Jackson did not testify and no indirect evidence was presented as to what his
    grounds would have been. We are left to speculate.

[86]

As
    a result, the Crown has failed to demonstrate that Mr. Gerson-Fosters arrest
    was lawful. His arrest was therefore arbitrary, contrary to s. 9, on this basis
    alone.

(ii)

The continued detention was unlawful

[87]

Even
    if the Crown had succeeded in establishing that Cst. Kim reasonably relied upon
    the erroneous entry of the surety warrant on CPIC as the basis for Mr. Gerson-Fosters
    arrest, in my view, s. 9 was still contravened. In the circumstances of this
    case, the failure of the police to follow up on Mr. Gerson-Fosters complaints
    that the surety warrant was no longer in force because it had already been
    dealt with in court made his continued detention illegal.

[88]

In
Kossick
, at para. 26, Caldwell J.A. held that reliance by an arresting
    officer on erroneous information will not be objectively reasonable if, in the
    circumstances, the police could reasonably have made inquiries which would
    have led to the discovery of the deficiencies or defects. I agree, and in my
    view, this principle applies not simply to the initial arrest, but to the
    continued detention where reasonably, the officers ought to make further
    inquiry into the basis for the arrest that supports the continued detention.

[89]

In
Kossick
, the arresting officer relied on information from another
    officer indicating there was an arrest warrant in place. The arresting officer
    proceeded with the arrest in non-urgent circumstances and without personally checking
    the electronic databases, including CPIC, which he had open in front of him and
    that would have revealed the arrest warrant had already been executed. In
Kossick
,

the finding that the police could reasonably have made inquiries was not
    triggered by any reason to doubt that an arrest warrant was in place, but by
    the ease with which the status of the warrant could have been checked before
    depriving Mr. Kossick of his liberty.

[90]

In
    this case, the need for reasonable inquiry was triggered when Mr. Gerson-Foster
    informed Cst. Kim and other officers involved in his continued detention that
    the arrest warrant had already been dealt with in court.

[91]

In
    saying this I do not disagree with Durno J.s comment in
R. v. Bacchus
,
    2012 ONSC 5082, at para. 116, that an arresting officer is not required to
    believe what an accused person says, and I appreciate that an arresting officer
    may disregard information which the officer has reason to believe may be
    unreliable:
R. v. Shinkewski
, 2012 SKCA 63, 289 C.C.C. (3d) 145, at
    para 13. However, Cst. Kim did not have reason to disbelieve what Mr.
    Gerson-Foster was saying, as was true in
Bacchus
. Nor did he disregard
    as unreliable what Mr. Gerson-Foster was telling him. Instead, Cst. Kim agreed
    that CPIC could be out of date. He had seen it happen before and mistakenly
    arrested others because of CPIC errors.

[92]

Cst.
    Sharma did not dismiss Mr. Gerson-Fosters claims as untenable either. When Mr.
    Gerson-Foster arrived at the station, Cst. Sharma told him this problem could
    be dealt with once they were upstairs.

[93]

And
    Sgt. Vendramini, the booking desk sergeant, did not dismiss the need for
    further inquiry. He said that the issue would be looked into by the detectives.

[94]

Each
    of these officers acknowledged the need for reasonable inquiry, and
    appropriately so. Detention in police lockup is a serious intrusion into the
    liberty of an individual. Mr. Gerson-Foster was adamant that there had been an
    error and the officers conceded the possibility of error. The officers
    continuing to detain Mr. Gerson-Foster should have investigated further, certainly
    before Sgt. Vendramini authorized a strip search, a point I will return to.

[95]

When
    the matter was finally looked into by Cst. Figlarz, the inquiries he took were
    not exceptional, but reasonable, given that the issue was the accuracy of the
    CPIC entry. Once Cst. Figlarz went behind the impugned CPIC entry by taking the
    reasonable and obvious steps of speaking to Mr. Gerson-Fosters counsel and
    contacting Old City Hall, he readily discovered that the surety warrant was no
    longer in place.

[96]

In
    these circumstances, even if Cst. Kim had legally arrested Mr. Gerson-Foster in
    reasonable reliance on the CPIC entry, Mr. Gerson-Fosters continued detention soon
    became illegal. Given that Mr. Gerson-Foster was not, in fact, lawfully
    arrested in the first place, this illegal continued detention represents an
    additional
Charter

violation.

(3)

Did the Failure to Record the Execution of the Surety Warrant on CPIC Violate
    the
Charter
?

[97]

Mr.
    Gerson-Foster argued before the trial judge that he was arbitrarily detained
    because state agents were negligent in leaving the surety warrant on CPIC,
    after it was dealt with by the administrative judge. It is not necessary to
    determine whether this is so, since serious breaches of Mr. Gerson-Fosters s.
    9 rights have already been demonstrated.

[98]

I
    will say, however, that I am not attracted to the Crown position that a
    detention is immune from
Charter

scrutiny, regardless of how
    negligent or even malicious state agents have been in maintaining CPIC, simply
    because another state agent  an arresting officer  unknowingly and innocently
    relied upon the CPIC entry. State agents maintain CPIC so that it can be used
    to make decisions that affect liberty interests. CPICs impact on the liberty
    interests of Canadians is arguably far too great to make CPIC a
Charter

free zone. It has been recognized that an abuse of process contrary to s. 7
    of the
Charter

will arise where there is conduct on the part
    of governmental authorities that violates those fundamental principles that
    underlie the communitys sense of decency and fair play, including through an
    unacceptable degree of negligent conduct:
R. v. La
, [1997] 2 S.C.R.
    680, at para. 22. Since it is illegal to act in a manner that is an abuse of
    process, it is arguable that s. 9 can be relied upon in lieu of s. 7 where the
    gravamen of the complaint is that the abusive recording of CPIC information
    resulted in detention. I will not recount them here, but the facts in
Bacchus

may be illustrative.

[99]

I
    see nothing in this courts decision in
R. v. Wilson
,

[2006] O.J.
    No. 4461 (C.A.), or
R. v. Harris
, 2007 ONCA 574, 87 O.R. (3d) 214, preventing
Charter

claims being brought under s. 7 or s. 9 based on the
    improper maintenance of CPIC. In
Wilson

this court refused, in
    a three paragraph endorsement, to entertain a
Charter

challenge
    to Wilsons arrest based on a CPIC error because that issue had not been raised
    at trial. In
Harris
,

Doherty J.A. found that a six day delay in
    removing a bail condition did not make the arresting officers reliance on CPIC
    unreasonable. The focus of the challenge in that case was the propriety of the arresting
    officers reliance on CPIC. The untenable claim that was made was that an error
    in a CPIC entry undermines the officers grounds. Simply put,
Harris

did not involve the kind of directed challenge to the maintenance of the CPIC
    entry that instigated the arrest, as is contemplated here.

[100]

I have said enough to
    raise question about the legal proposition relied upon by the Crown. Since I
    need not finally resolve whether
Charter

intervention based on
    maintenance of CPIC is tenable, or whether such a breach occurred in this case,
    I will say no more.

C.

The section 8
    breaches: did the trial judge err in finding that the pat down search was
    reasonable As incidental to a lawful arrest?

[101]

In order for a search
    to be lawful as incident to an arrest, the arrest itself must be lawful:
Golden
,
    at para. 91. As indicated, Mr. Gerson-Fosters arrest was unlawful. It follows
    that the pat down search incident to that arrest was also unlawful, in
    violation of s. 8. The trial judge erred in finding otherwise.

D.

THE SECTION 8 BREACHES: DId the TRIAL JUDGE ERR IN FINDING THAT THE
    STRIP SEARCH WAS REASONABLE?

[102]

It is not
    controversial that Mr. Gerson-Foster was subjected to a strip search. [W]here
    the reasonableness of a strip search is challenged, it is the Crown that bears
    the onus of proving its legality:
Golden
, at para. 105. The trial
    judge held that the Crown discharged its onus. In my view, she erred in doing
    so.

(1)

The Strip Search was Illegal

[103]

The trial judge was
    correct in recognizing that in appropriate cases strip searches may be conducted
    incidental to an arrest, and that for this to be so, the arrest must be legal.
    I have already held that Mr. Gerson-Fosters arrest was not legal. The trial
    judges error on that issue carried into her determination of this issue. Since
    the arrest was not legal, a strip search incidental to that arrest was not
    legal, contrary to s. 8.

[104]

Indeed, even had Mr.
    Gerson-Fosters initial arrest been lawful, I have already found that Mr.
    Gerson-Fosters detention became unlawful when the police, having reason to do
    so, failed to make reasonable inquiries that would have led them to discover
    the defective foundation for that arrest. I need not identity the precise point
    in time when the obligation to inquire was triggered because one thing is
    clear. At the very least, it was unreasonable for Sgt. Vendramini to authorize
    a strip search of Mr. Gerson-Foster, and for Csts. Kim and Sharma to conduct
    one, before checking into the status of the surety warrant. A strip search is
    highly intrusive and demeaning. At the relevant time, Mr. Gerson-Foster was
    secure in a locked interview room, isolated from other prisoners. Even if he
    was able to destroy contraband in his possession, which seems unrealistic,
    doing so would have kept it from the prison population, the purported purpose
    for the search. There was therefore no urgency. If Mr. Gerson-Foster proved
    right and the surety warrant relied upon for his detention was not in effect, he
    would have been released unconditionally without this indignity. Clearly, even
    if otherwise appropriate, the strip search should not have been conducted until
    it was assured that Mr. Gerson-Foster would be mingling with other prisoners.
    The trial judge therefore erred in failing to find that the strip search
    violated s. 8.

(2)

Did the Police Lack the Legal Foundation for a Strip Search?

[105]

Mr. Gerson-Foster
    argues that the trial judge erred in holding that his strip search was legal
    because he was entering the prison population and it was necessary to ensure he
    did not have additional drugs on his person. He contends that: (1) the trial
    judge misapprehended the evidence about the purpose of the search, (2) the
    police did not have the grounds for a strip search, and (3) the purpose of the search
    (a search for drugs) was unrelated to Mr. Gerson-Fosters arrest on a surety
    warrant.

[106]

The second argument
    related to the grounds required for a custodial strip search is complex, and
    was not argued fully before us and we should not comment on it.

[107]

Moreover, it is once
    again unnecessary to resolve any of these
Charter

claims since Mr.
    Gerson-Foster has already demonstrated serious s. 8 violations. The arrest
    relied upon to support his strip search was illegal, and he was illegally strip
    searched without the police making reasonable inquiries that they ought to have
    made to determine the status of the surety warrant.

[108]

I will say, however, that
    Mr. Gerson-Fosters contention that, to be lawful, a custodial strip search must
    be related to the purpose of the arrest, is not an obviously correct
    proposition of law. I will address this legal proposition briefly because in
    her reasons, recounted earlier in this decision, the trial judge assumed that a
    custodial strip search can only be conducted if related to the purpose of the
    arrest. I do not want to leave the impression that we are expressing agreement
    with that proposition.

[109]

In
Golden
, at
    para. 96, Iacobucci and Arbour JJ. underscored the utility in distinguish[ing]
    between strip searches immediately incidental to arrest, and searches related
    to safety issues in a custodial setting. Requiring strip searches immediately incidental
    to arrest to be related to the purpose of the arrest makes sense, since a strip
    search that is unrelated to the purpose for an arrest cannot be for the purpose
    of searching for and preserving evidence of the offence. Custodial searches are
    conducted, however, because of the greater need to ensure that individuals
    entering the prison population do not possess concealed weapons or illegal
    drugs on their person. This risk can be presented by any prisoner, regardless
    of the purpose of their arrest. The purpose of the arrest limit does not
    operate sensibly in the custodial setting and I do not read
Golden

as
    mandating it.

[110]

In my view, the
    proposition relied upon by Mr. Gerson-Foster that custodial strip searches must
    be related to the purpose of the arrest should not be taken as settled.

E.

THE REMEDY: SHOULD
    THIS COURT EXCLUDE THE EVIDENCE OBTAINED?

[111]

Mr. Gerson-Foster has
    therefore made out four related
Charter

violations. His s. 9
    right not to be arbitrarily detained was contravened when he was arrested
    without reasonable grounds, and again when that arrest was continued without
    reasonable inquiries being made into the validity of the surety warrant the
    police were relying upon. His s. 8 right to be free from unreasonable search
    was contravened because the arrest relied upon to justify both his pat-down and
    strip searches was illegal, and he was strip searched before the police made reasonable
    inquiries that they ought to have been made into the validity of the surety
    warrant.

[112]

In my view, we are in
    a position to determine whether the admission of the evidence linked to these
Charter

violations would bring the administration of justice into disrepute, and we
    should do so. The evidence relevant to this determination is not in dispute; only
    its characterization is at issue. This is an appropriate case for this court
    resolving the s. 24(2) question:
R. v. Caputo

(1997), 114
    C.C.C. (3d) 1 (Ont. C.A.), at p. 13.

[113]

As I see it, taken
    collectively, the
Charter
breaches were extremely serious. I recognize
    that Cst. Kim believed he was entitled to arrest Mr. Gerson-Foster, and that it
    was not his fault that the Crown did not call Det. Cst. Jackson in an effort to
    demonstrate objective grounds for the arrest. However, things became serious
    once the officers, aware of the need to inquire into the validity of the surety
    warrant, failed to do so. Instead of taking steps to ensure that they were
    acting lawfully and respecting the liberty interests of Mr. Gerson-Foster, all
    of them, save Cst. Figlarz, to use the vernacular, passed the buck. Things
    became extremely serious when, knowing of the need to inquire, Mr.
    Gerson-Foster was strip searched without the inquiry having been made. That, in
    my view, was bad faith. This, coupled with the fact that there were several
Charter

breaches, makes for a strong case for exclusion based on the seriousness of
    the
Charter

violations.

[114]

The impact of the
    breach on Mr. Gerson-Fosters
Charter

rights was also considerable.
    He was improperly arrested without reasonable and probable grounds, taken into
    custody, and then subjected to the indignity of a strip search that should
    never have happened. The impact of the breaches on Mr. Gerson-Fosters
Charter

interests strongly favour exclusion.

[115]

In my view, because
    the first and second
Grant

inquiries strongly favour exclusion,
    the evidence obtained must be excluded. In the circumstances of this case, the
    disrepute that would be caused by the loss of the reliable real evidence, even recognizing
    that this evidence is necessary to the prosecution of the charges Mr.
    Gerson-Foster faces, cannot outweigh the force of these considerations:
R.
    v. McGuffie
, 2016 ONCA 365, 336 C.C.C. (3d) 486, at para. 63. The evidence
    must be rejected in the long term interests of the repute of the administration
    of justice.

CONCLUSION

[116]

I would therefore
    allow the appeal, set aside Mr. Gerson-Fosters convictions, and substitute
    verdicts of acquittal.

Released: May 16, 2019 K.F.

David
    M. Paciocco J.A.

I
    agree. K. Feldman J.A.

I
    agree. B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hansen, 2019 ONCA 381

DATE: 20190508

DOCKET: C66269

MacPherson, Juriansz and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew James Joseph Hansen

Appellant

Matthew James Joseph Hansen, in person

Matthew Gourlay, duty counsel

Luke Schwalm, for the respondent

Heard: May 6, 2019

On appeal from the sentence imposed on December 3, 2018,
    by Justice Matthew E. Graham of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

On consent, and only on the issue of the duration of the driving
    prohibition, the appellants driving prohibition is reduced, by virtue of s.
    259(1) and (2), from a lifetime prohibition to a prohibition that expires on
    May 20, 2022.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hartwick, 2019 ONCA 383

DATE: 20190508

DOCKET: C66272

MacPherson, Juriansz and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher L. Hartwick

Appellant

No one appearing for the appellant

Matthew Gourlay, duty counsel

Luke Schwalm, for the respondent

Heard: May 6, 2019

On appeal from the conviction entered on June 27, 2018
    and the sentence imposed on October 19, 2018 by Justice Deborah J. Austin of
    the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant did not appear again. The appeal is dismissed as
    abandoned.