COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Doucette, 2015 ONCA 583

DATE: 20150828

DOCKET: C53432

Strathy C.J.O., Doherty and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Doucette

Appellant

Candice Suter, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: April 14, 2015

On appeal from the conviction entered on April 27, 2010 and
    the sentence imposed on June 3, 2010 by Justice Eugene G. Ewaschuk of the
    Superior Court of Justice, sitting with a jury.

Doherty J.A.:

OVERVIEW

[1]

The appellant was charged with first degree murder and convicted by a
    jury of second degree murder.  The trial judge imposed a sentence of life
    imprisonment without eligibility for parole for 15 years.  The appellant
    appeals conviction and sentence.

[2]

On the conviction appeal, the appellant contends that the trial judge
    misdirected the jury on an essential element of his self-defence claim and
    erred in law in failing to leave the statutory defence of provocation with the
    jury.  The appellant further argues that the trial judge misstated the evidence
    of two witnesses on matters that were of significance to the defence.  On the
    sentence appeal, the appellant submits that the trial judges finding as to the
    motive for the murder is inconsistent with the jurys acquittal of the appellant
    on the charge of first degree murder.  The appellant also argues that the trial
    judge failed to give proper effect to various mitigating factors.

[3]

For the reasons that follow, I would dismiss the appeal.

THE EVIDENCE AT TRIAL

[4]

The appellant shot and killed Jesse Batisse outside of a Toronto bar at
    about 1:00 a.m. on December 24, 2006.  The Crown alleged that the appellant was
    angry with Mr. Batisse as a result of an earlier altercation in the bar.  On
    the Crowns theory, the appellant, who was much smaller than Mr. Batisse, got
    the worst of that altercation and decided to get his revenge.  The Crown
    contended that the appellant went home and got his gun and returned to the bar
    to await Mr. Batisses departure.  When Mr. Batisse left the bar, the appellant,
    who was waiting for him on the street, approached Mr. Batisse, pulled his gun
    and shot and killed Mr. Batisse.  Mr. Batisse was hit with three bullets.  Two
    entered his chest on a downward trajectory and one entered his back in the
    region of the buttocks.  A fourth shot struck Daniel Pohl-Miranda, Mr.
    Batisses friend.

[5]

The appellant fled the scene and disposed of his weapon.  He was
    arrested about two weeks later.

[6]

The appellant testified.  He described his altercation in the bar with
    Mr. Batisse, depicting Mr. Batisse as the aggressor.  The appellant testified that
    he left the bar and happened to meet his father.  According to the appellant,
    the meeting between himself and Mr. Batisse on the street outside the bar a
    short time after the altercation in the bar was happenstance.  The appellant
    testified that Mr. Batisse was the aggressor from the outset.  He walked toward
    the appellant aggressively, swore at him, threatened him, and then struck him
    in the face.  Mr. Batisse then reached into his waistband for his gun.  The
    appellant had seen that Mr. Batisse was carrying a gun in his waistband earlier
    that evening in the bar.  The appellant testified that he feared for his life,
    drew his gun, which he routinely carried for protection, and fired in self-defence
    as he moved away from Mr. Batisse.  The appellant testified that he did not
    intend to kill Mr. Batisse.

[7]

No gun was found on Mr. Batisses body or at the scene.  None of the witnesses
    who saw any part of the altercation that culminated in Mr. Batisses shooting
    put Mr. Batisse in possession of a firearm.  There was no forensic evidence to
    put Mr. Batisse in possession of a firearm.

[8]

The defence maintained that Daniel Pohl-Miranda, who was with Mr.
    Batisse and was also shot but not seriously hurt, had picked up Mr. Batisses
    gun after Mr. Batisse was shot.  Mr. Pohl-Miranda left the scene in a taxi and
    went to his fathers home and later went to the hospital.  The defence contended
    that Mr. Pohl-Miranda went to his fathers home to dispose of the weapon.

[9]

Matthew Brown, a defence witness, testified that sometime after the
    shooting, Mr. Pohl-Miranda told him that he had picked up Mr. Batisses gun at
    the scene.  According to Mr. Brown, he saw Mr. Pohl-Miranda with the gun.  Mr.
    Brown was familiar with the gun and had seen Mr. Batisse with the same gun sometime
    before the shooting.

[10]

Mr.
    Pohl-Miranda testified and denied any knowledge of any gun at the scene.  He
    also denied that he ever told Mr. Brown that he had picked up the gun or he had
    showed a gun to Mr. Brown.

[11]

The
    jurys acquittal on the charge of first degree murder indicates that it did not
    accept the Crowns argument that the appellant decided to kill Mr. Batisse,
    went home to get his gun, and returned to the street outside of the bar to
    await Mr. Batisses departure from the bar. The conviction on the charge of
    second degree murder indicates that the jury was satisfied beyond a reasonable
    doubt that the appellant fired the gun at Mr. Batisse with the intention
    required for murder and did not act in self-defence.

THE CONVICTION APPEAL

A.

THE ALLEGED MISDIRECTION IN THE SELF-DEFENCE INSTRUCTION

[12]

The trial took place before the enactment of the current self-defence
    provisions (S.C. 2012 c. 9, s. 2).  The trial judge left self-defence as
    defined in the former s. 34(2) with the jury.  That section provides:

Everyone who is unlawfully assaulted and who causes death or
    grievous bodily harm repelling the assault is justified if

(a)   he causes it under reasonable
    apprehension of death or grievous bodily harm from the violence with which the
    assault was originally made or with which the assailant pursues his purposes;
    and

(b)   he believes, on reasonable
    grounds, that he cannot otherwise preserve himself from death or grievous
    bodily harm.

[13]

Section
    34(2) identifies three elements of a self-defence claim under that section.

·

The accused must have been unlawfully assaulted.

·

The accused must have caused the death of the other person under
    a reasonable apprehension of death or grievous bodily harm.

·

The accused must have believed on reasonable grounds that the
    only way he could save himself from death or grievous bodily harm was by
    killing the other person.

[14]

The
    unlawful assault requirement, the first of the three elements identified above,
    is central to this ground of appeal.

[15]

In
    his self-defence instruction, the trial judge attempted to focus the jurys
    attention on the crucial, factual dispute  did Batisse have a gun and did he
    do something in respect of that gun that caused the appellant to reasonably
    apprehend death or grievous bodily harm and to believe that he could not save
    himself except by pulling out his gun and firing at Mr. Batisse?

[16]

Under
    a heading Starting Point, the trial judge told the jury:

The accused has admitted identity as the person who killed
    Jesse Batisse.  The key issue in this case is whether or not the accused acting
    in lawful self-defence in shooting Mr. Batisse to death and the key factual
    issue is whether or not the deceased, Jesse Batisse, had a gun in his hand
    before the accused, Thomas Doucette, extracted his concealed gun from his
    jacket, if he did so, and shot at the accused four times.

[17]

The
    trial judge described the key factual issue in various ways during his jury
    instruction.  On occasion, he told the jury to consider whether the deceased
    had a gun in his hand; at other times he told the jury to consider whether
    the deceased had exposed a gun; at still other times he told the jury to
    consider whether the deceased had pulled out his gun; and on another occasion
    he told the jury to consider whether the deceased had in fact his gun out
    first and pointed it in the general direction of the accused.

[18]

The
    trial judge repeatedly told the jury that it was incumbent on the Crown to
    prove beyond a reasonable doubt that the appellant had not acted in
    self-defence.  He tied this instruction on the burden of proof to the key
    factual issue in these terms:

Should the Crown fail to satisfy you beyond a reasonable doubt
    that the deceased Batisse did not have a gun in his hand prior to the accused
    Doucette withdrawing his gun, it is most likely that the Crown would have
    failed to satisfy you beyond a reasonable doubt that the defence of
    self-defence is unavailable to the accused.  In other words, the accused must
    be acquitted outright of all charges.

[19]

The
    language used by the trial judge in describing the actions of Mr. Batisse that
    could constitute an assault for the purposes of s. 34(2) tracked the language
    used by the appellant in his description of Mr. Batisses actions.  The
    appellant described a rapidly evolving and escalating confrontation.  It began
    with harsh words, quickly accelerated to a physical assault on the appellant,
    followed immediately by Mr. Batisse going for the gun that was tucked in his
    belt.  In his testimony, the appellant described Mr. Batisses movements that
    precipitated the appellant reaching for his gun in various ways.  Some are set
    out below:

When he reached for his gun, all I thought was this guy was
    gonna kill me and I pulled the gun out of my pocket

I seen his gun coming out at the same time that Im reaching
    for my gun

And I see the quick gesture to grab his gun.  And I see him
    pull it out like this.  And when he has it out, I already have mine out, and I
    ran away

I saw it as Im pulling out my gun too.  We both reach.  Like
    he reach for his gun, I reach more [
sic
] my pocket.  My pockets
    closer to my right hand than him.  And hes intoxicated.  I dont know if hes
    having trouble getting it out or what

I saw him long enough to see that he had pulled out his gun,
    and it looked like he was turning it to point in my direction, and thats when
    I ran away

[20]

In
    essence, the appellant testified that Mr. Batisse was in the process of pulling
    his gun from his waistband when the appellant, acting in self-defence, quickly reached
    into his jacket pocket, pulled out his gun and fired.  As the trial judge
    suggested to the appellant during his testimony, it was the appellants
    position that Mr. Batisse went for his gun, but the appellant beat him to the draw.

[21]

Ms.
    Suter, counsel for the appellant, accepts that the trial judge correctly
    limited his self-defence instruction to s. 34(2).  She also agrees that it was
    incumbent on the trial judge to tailor the self-defence instructions to the
    specific facts of the case.  She submits, however, that in doing so, the trial
    judge had to tell the jury that insofar at the assault component of s. 34(2)
    was concerned, the question was whether the appellant reasonably believed that
    Mr. Batisse was about to shoot him when the appellant pulled his gun and fired
    at Mr. Batisse.  Ms. Suter submits that instead of focusing on the appellants
    belief and the reasonableness of that belief, the trial judge focused on a very
    narrow factual question  who went for their gun first?  She submits that the
    answer to that question would not necessarily determine whether the appellant
    reasonably believed that his life was being threatened by Mr. Batisse.

[22]

Counsel
    submits that a proper instruction on the assault component of s. 34(2) required
    that the jury be told to consider:

·

Did the accused subjectively apprehend that he was being
    unlawfully assaulted?

·

Evaluated objectively, was it reasonable for the accused to
    believe he was being assaulted?

·

Would the assault perceived by the accused be, as an objective
    fact, an unlawful assault?

[23]

Counsel
    is on solid legal ground in submitting that a reasonable belief by an accused
    that he is being assaulted or is about to be assaulted will satisfy the assault
    component of self-defence as defined in the former s. 34(2):  see
R. v. Pé
tal
,
    [1994] 1 S.C.R. 3 at paras.
20-22;
R. v. Currie
(2002), 166 C.C.C. (3d) 190 at paras. 50-52 (Ont. C.A.).
Counsel is
    also correct in her submission that this jury was not instructed to consider whether
    the appellant reasonably believed he was about to be shot by Mr. Batisse when
    he pulled his gun and fired.  The Crown submits, however, that on the facts of
    this case the instruction now urged on appeal was unnecessary and potentially
    confusing.

[24]

Recently,
    Moldaver J., for the court, in
R. v. Rodgerson
, 2015 SCC 38, [2015]
    S.C.J. No. 38, at paras. 50-53, forcefully reiterated the need for trial judges
    to provide jury instructions tailored to the specific case.  As he stressed,
    trial judges must, to the extent compatible with the evidence and the issues in
    the particular case, decant and simplify the jury instruction.  In doing so,
    trial judges should avoid instructions which, while legally correct, are
    unnecessary to a proper and full deliberation of the case as presented to the
    jury.  Moldaver J. observed, at para. 51:

The failure to isolate the critical issues in a case and tailor
    the charge to them inevitably makes the instructions less helpful to the jury
    and adds unnecessarily to their length and complexity.

[25]

The
    trial judges approach in this case did isolate the crucial factual issue for
    the jury.  The self-defence claim depended entirely on the appellants
    evidence.  According to his evidence, he was moved to shoot Mr. Batisse because
    he saw him pulling his gun from his waistband.  The appellants evidence leaves
    no realistic basis for the suggestion that although Mr. Batisse may not in fact
    have been armed or may not in fact have been removing the gun from his
    waistband, the appellant reasonably believed that he was armed and was drawing
    his weapon.  Drawing a distinction between what the appellant reasonably
    believed and what the appellant said happened was unwarranted on this evidence
    and could only lead to unnecessary complexity in the jury instruction: see
R.
    v. Stewart
, 2014 ONCA 70, 306 C.C.C. (3d) 269, at paras. 26-31;
R. v.
    Rochon
, [2003] O.J. No. 1155 (C.A.), at paras. 36-38.

[26]

I
    do not accept the submission that the trial judge mischaracterized or
    denigrated the self-defence claim by telling the jury that the defence turned
    on the jurys determination of who drew his weapon first.  The appellant did
    not suggest that he feared for his life before he saw Mr. Batisse drawing his
    weapon.  It was that action which the appellant relied on to justify the deadly
    force he used.  If the jury was satisfied that the appellant pulled out his
    weapon before he saw Mr. Batisse pulling out his, there was no factual basis
    for the self-defence claim.

[27]

I
    also cannot accept that the trial judge materially misstated the appellants
    evidence in directing the jury as to the evidentiary basis for the self-defence
    claim.  As set out above, the trial judge used different phrases to describe
    the actions of the deceased that the appellant said led him to use deadly
    force. The appellant also used different phrases in describing the actions of
    the deceased.

[28]

Read
    as a whole, I think the trial judges instructions would convey to the jury a
    proper understanding of the unlawful assault component of s. 34(2). Namely,
    that it was made out unless the Crown proved beyond a reasonable doubt that Mr.
    Batisse was not in the process of reaching for and pulling his gun out from his
    waistband when the appellant removed his gun from his pocket and shot and
    killed Mr. Batisse.  In my view, that was an accurate statement of the unlawful
    assault requirement in s. 34(2) in the context of the evidence adduced in this
    case.

B.

was the statutory defence of provocation available?

[29]

Counsel
    for the appellant at trial asked that provocation be left with the jury.  The
    trial judge refused to leave the defence, noting that it was inconsistent with
    the self-defence claim advanced by the appellant in his evidence.  The
    appellant submits that the trial judge erred in law in refusing to leave the
    defence.

[30]

The
    defence of provocation is predicated on a loss of self-control in response to a
    wrongful act or insult.  By its very nature, it is somewhat inconsistent with a
    self-defence claim which asserts a justifiable reaction to a threat or assault.
    However, both defences can be available on the evidence.  As with any defence,
    provocation must be left with jury if there is evidence upon which a properly
    instructed jury, acting reasonably, could give effect to the defence:
R.
    v. Gauthier
, 2013 SCC 32, [2013] 2 S.C.R. 403, at para. 23;
R. v.
    Cairney
, 2013 SCC 55, [2013] 3 S.C.R. 420 at paras. 21-22.  The air of
    reality test looks at the totality of the evidence and at the conduct of the
    trial as a whole.  The fact that a defence is incompatible with the primary
    defence advanced at trial does not mean there is no air of reality to that
    defence:
Gauthier
, at para. 32;
R. v. Graveline
, 2006 SCC
    16, [2006] 1 S.C.R. 609, at para. 10.

[31]

The
    nature of the primary defence advanced may, however, factor into a
    consideration of whether there is an air of reality to a defence which
    conflicts with the primary defence.  As explained in
R. v. Pappas
, 2013
    SCC 56, [2013] 2 S.C.R. 452, the air of reality inquiry demands a limited
    weighing of the evidence.  Defences are not properly left with the jury if
    supported only by some isolated piece of evidence ripped from the context of
    the rest of the evidence.  Thus, in
Pappas
, the appellants assertion
    that he had snapped in response to comments by the deceased could not, having
    regard to the totality of the evidence, cause a jury to reasonably have a doubt
    as to whether the appellant had lost control as a result of the deceaseds
    implied threat:
Pappas
, at para. 41; see also
R. v. Krasniqi
,
    2012 ONCA 561, 291 C.C.C. (3d) 236, at para. 56.  In short, the entirety of the
    record must provide a basis upon which a jury could
reasonably
give
    effect to the defence.

[32]

The
    elements of the defence of provocation as set out in s. 232 of the
Criminal
    Code
are well known and need not be
    repeated here:  see
R. v. Tran
, 2010 SCC 58, [2010] 3 S.C.R. 350, at paras. 25-38.  For present
    purposes, I need focus only on the subjective
component of the
    defence.

[33]

Provocation
    is available if an accused acted in response to an unlawful act or insult on
    the sudden before there was time for his passion to cool.  As with the other
    elements of the defence, it is the Crowns responsibility to negate this element
    of the defence:  see
Tran
, at paras. 36-38.

[34]

On
    the appellants evidence, he was assaulted by Mr. Batisse on the street
    immediately before he shot him.  However, there is no suggestion in the
    appellants evidence that he lost control or responded in the heat of the
    moment to Mr. Batisses threatening conduct.  To the contrary, on the
    appellants evidence, he had tried to calm Mr. Batisse down, both during the
    altercation inside the bar and again when Mr. Batisse approached him
    aggressively on the street.  In his examination-in-chief, the appellant testified
    that he shot Mr. Batisse because he feared for his life, intending only to get
    away before I was shot.  The appellants evidence effectively negates any
    suggestion that he had lost control when he pulled his gun and fired in Mr.
    Batisses direction.

[35]

The
    only reference to anger in the appellants testimony occurred during his
    cross-examination.  The appellant acknowledged that he started to become
    angry on the street when his repeated attempts to calm Mr. Batisse down and
    avoid conflict with him did not appear to be working.  On the appellants
    evidence, immediately after he started to become angry, Mr. Batisse struck
    him in the face knocking him backwards.  As he was stumbling back, the
    appellant saw Mr. Batisses gun coming out.  The appellant responded by
    pulling his gun and shooting Mr. Batisse.

[36]

As
    indicated in
Pappas
, the appellants single reference to becoming
    angry cannot be used in isolation to suggest a loss of control which warrants
    a provocation instruction.  Considered in its entirety, the appellants
    evidence not only provided no basis for a provocation instruction, but strongly
    pointed away from any suggestion that the appellant had acted out of any
    emotion other than a justifiable need to save his own life.

[37]

Nothing
    in the rest of the evidence gives any air of reality to a provocation claim.
    According to Mr. Batisses friends, it was the appellant who was the aggressor
    on the street.  On their evidence, he confronted Mr. Batisse and shot him in
    cold blood.  The evidence of the independent witnesses who observed part of the
    altercation, while far less incriminating from the appellants perspective,
    offered no support for a provocation defence.

[38]

The
    trial judge properly refused to leave provocation with the jury.

C.

the alleged misdirection on the evidence of the witness Lisa gray

[39]

Lisa
    Gray happened to be standing outside having a cigarette when she saw an
    argument between two men.  She described one as tall and slim and the other as
    shorter.  Ms. Gray went back inside a bar only to hear shots shortly
    afterwards.  She returned outside a few minutes later and saw the tall man
    lying in an alcove on the ground.  He had been shot.

[40]

The
    defence called Ms. Gray apparently to support the appellants evidence that he
    and Mr. Batisse had argued on the street immediately before the shooting.  The
    Crown maintained, based on Ms. Grays description of the persons involved in
    the argument, that Ms. Gray had in fact seen Mr. Pohl-Miranda and his girlfriend
    arguing on the street.  Ms. Gray had described the tall person involved in the
    argument as slim.  Mr. Batisse weighed 300 pounds.

[41]

The
    trial judge made three references to Ms. Grays evidence in his instructions to
    the jury.  One reference, made in the context of setting out the position of
    the defence, described Ms. Grays evidence from the defence perspective.  A second
    reference put the Crowns position with respect to her evidence to the jury.
    The other reference to Ms. Grays evidence occurred in the course of the trial
    judges explanation that different witnesses could see the same events differently.
    After referring to Ms. Grays description of the two people involved in the
    argument, the trial judge opined that based on her description of the people
    involved, Ms. Gray had likely seen Mr. Pohl-Miranda and his girlfriend
    arguing.  He pointed out that Ms. Gray was standing some distance away in the
    dark.

[42]

It
    is unfortunate that the trial judge weighed in to support the Crowns
    interpretation of Ms. Grays evidence over that advanced by the defence.  The
    jury was perfectly capable of addressing the competing arguments without the benefit
    of the trial judges opinion.

[43]

I
    am satisfied, however, that the trial judges comments did not cause any
    prejudice.  Ms. Grays evidence was of little value to the Crown or the defence.
    There was no dispute that the appellant and Mr. Batisse had a confrontation on
    the street that involved some kind of verbal exchange followed by gunfire.  Ms.
    Grays evidence, regardless of the interpretation one might take of it, did not
    meaningfully advance the case for either the Crown or the defence.

D.

the alleged misapprehension of matthew browns evidence

[44]

Matthew
    Brown was a defence witness.  He was called for two purposes.  First, to put a
    handgun in the possession of Mr. Batisse at some time prior to the shooting
    and, second, to put the same handgun in the possession of Mr. Batisses friend,
    Mr. Pohl-Miranda, sometime after the shooting.  This evidence was offered to
    support the defence position that Mr. Batisse had a gun when the appellant shot
    him and that Mr. Pohl-Miranda had taken it from the scene of the shooting.

[45]

Mr.
    Brown testified that Mr. Batisse was a very good friend of his.  He indicated
    that he had seen Mr. Batisse with a handgun and described the gun in some
    detail.  He also testified that he saw Mr. Pohl-Miranda with the same gun about
    three months after Mr. Batisse was shot.  According to Mr. Brown, Mr. Pohl-Miranda
    said he had picked the gun up at the scene after Mr. Batisse was shot.

[46]

Mr.
    Browns evidence as to when he saw Mr. Batisse with the gun is not clear.  In
    his examination-in-chief, immediately after counsel for the appellant established
    Mr. Brown had seen Mr. Batisse in possession of a gun, the following exchange
    occurred between counsel and Mr. Brown:

Q. Now when you were in custody, on the 23
rd
and 24
th
of 06 how long  when did you go in, do you recall?

A. It was May 24 weekend prior to that.

Q. Did you see the gun before this date?

A. Yeah I have.

[47]

There
    were no further questions in-chief about when Mr. Brown saw Mr. Batisse with
    the gun.

[48]

In
    cross-examination, Mr. Brown was asked about being incarcerated on the May long
    weekend in 2006.  He told counsel that he was jailed for impaired driving and
    fail to provide a breath sample, but that he was required to remain in custody
    on other charges.  The other charges were not identified.

[49]

Crown
    counsels cross-examination concluded with the following:

Q. And when were you shown this gun?

A. Two months  two weeks before I went to custody, I got
    arrested for B and E.

Q. And where did you see it?

A. Tastys at the bar, a bar we used to chill out every day.
    Tastys.

[50]

In
    reply, and by way of an agreed statement of fact, the jury was told that Mr.
    Batisse was in custody from January 22, 2006 until November 21, 2006.

[51]

Both
    counsel, in their closing arguments, referred to Mr. Brown as having testified
    that he saw the gun in Mr. Batisses possession about two weeks before he went
    into custody on the May long weekend in 2006.  The defence argued that while
    Mr. Brown was in error as to the date, given that Mr. Batisse was in custody at
    that time, his error should not undermine the credibility of his evidence that
    he had seen Mr. Batisse with the gun before Mr. Batisse was shot and later saw the
    same gun in the possession of Mr. Pohl-Miranda.

[52]

In
    his closing instructions, the trial judge, not surprisingly, took the same view
    of the evidence as had counsel.  He told the jury, that based upon the admitted
    fact that Mr. Batisse was in jail in May 2006, Mr. Brown could not have seen
    him in possession of the gun some two weeks before the May holiday as he
    testified.  The trial judge went on to say:

That flagrant mistake on Browns part may indicate that he is
    perjuring himself as part of a plot to save his classmates brother from
    conviction.  After all, the accused has no chance of acquittal whatsoever
    unless a gun somehow appears in Jesse Batisses hand immediately prior to his
    being shot.

[53]

On
    appeal, counsel submits that the trial counsel and the trial judge
    misunderstood Mr. Browns evidence.  Counsel argues that Mr. Brown testified
    that he went to jail in May 2006 on drinking and driving-related charges, but
    that he placed the time at which he saw Mr. Batisse with the gun by reference
    to Mr. Browns incarceration on break and enter charges.  The date on which he
    was incarcerated on these charges was never identified.  Counsel submits that
    evidence that Mr. Batisse was in jail between January and November 2006 did
    not, therefore, mean that Mr. Brown was wrong in his recollection of when he saw
    Mr. Batisse with the gun.

[54]

I
    agree that Mr. Browns evidence about when he saw the gun in Mr. Batisses
    possession is far from clear.  It was, however, open to the interpretation
    given to it by counsel and the trial judge.  Mr. Brown testified he went to jail
    on the May long weekend in 2006 for drinking-related charges and continued in
    custody on other charges.  No one inquired as to the nature of those additional
    charges.  They may have involved a break and enter charge.  It is important to
    bear in mind that it was counsel for the appellant who first linked the timing
    of Mr. Browns being shown the gun by Mr. Batisse with Mr. Browns
    incarceration on the May long weekend in 2006.  Mr. Brown was a defence witness
    and one must presume that counsel was aware of the nature of his evidence.

[55]

The
    appellant has failed to demonstrate, based on the trial record, that the trial
    judge misapprehended Mr. Browns evidence as to when he saw a gun in Mr.
    Batisses possession.

[56]

The
    appellant also seeks to adduce fresh evidence on appeal in support of the
    argument that everyone at trial misunderstood Mr. Browns evidence about when
    he saw the gun.  In substance, the fresh evidence is proffered to show that Mr.
    Brown was charged with breaking and entering in December 2005 and not May
    2006.  Mr. Batisse was not in custody in the entire two months leading up to
    Mr. Browns arrest for breaking and entering in December 2005.  Consequently,
    argues the appellant, Mr. Browns evidence as to when Mr. Batisse showed him
    the gun is not as demonstrably false as suggested at trial.

[57]

Notably
    absent from the proffered fresh evidence, is anything from Mr. Brown purporting
    to clarify when he was shown the gun by Mr. Batisse.  The appellants position
    is that the various court documents filed make it safe to assume that Mr.
    Browns reference to being arrested for break and enter is a reference to the
    arrest in December 2005.  It may be, or it may not be.  Without anything from Mr.
    Brown, the evidence proffered on appeal has little, if any, probative value and
    could not reasonably be expected to have affected the verdict.  I would not
    admit the fresh evidence.

E.

conclusion

[58]

I
    would dismiss the conviction appeal.

the sentence appeal

[59]

In
    imposing a sentence of life imprisonment without eligibility for parole for 15
    years, the trial judge said:

I have often said, and it bears repeating, that the use of guns
    in Toronto is a scourge to this community and must be stopped.  The use of guns
    can be deterred only by the imposition of exemplary sentences.

[60]

This
    court has repeatedly said the same thing:  e.g. see
R. v .Danvers
,
    [2005] O.J. No. 3532, paras. 75-78;
R. v. Paredes
(2014), 317 C.C.C.
    (3d) 415, at para. 44 (Ont. C.A.).

[61]

The
    circumstances of this murder placed it squarely among those that demand a
    strong denunciatory sentence.  The appellant, armed with a loaded handgun,
    opened fire on Mr. Batisse on a public street.  He not only shot Mr. Batisse
    three times, he wounded Mr. Miranda with a fourth shot.

[62]

The
    appellant acknowledged in his evidence that he routinely carried a loaded
    handgun on the streets of Toronto.  He was on bail at the time he shot Mr.
    Batisse and the terms of his bail prohibited him from possessing a firearm.  He
    was also in violation of a curfew term of that bail.  The appellant has a
    criminal record that includes an assault and a threatening charge.

[63]

These
    circumstances, all aggravating, justified the imposition of a period of parole
    ineligibility beyond the 10-year minimum, despite the appellants youth.  He
    was 20 years old at the time of the murder.  This court will not interfere with
    the parole ineligibility period chosen by a trial judge unless the appellant
    demonstrates error in principle or convinces the court that the period of
    ineligibility is manifestly excessive.

[64]

Counsel
    for the appellant diligently advanced various alleged errors in principle made
    by the trial judge.  I am satisfied that the trial judge did not err in
    principle.  I do not propose to examine each argument separately, but will
    refer to two of the arguments advanced by counsel.

[65]

The
    appellant argues that the trial judge was not entitled to find for the purposes
    of sentencing that Mr. Batisse was unarmed when shot by the appellant.  She
    submits that the jurys verdict does not necessarily mean that Mr. Batisse was
    unarmed.  The verdict means only that the jury rejected the appellants
    evidence that he pulled his gun in response to Mr. Batisses reaching for and
    pulling out his gun.

[66]

I
    accept that the jurys verdict does not necessarily mean that the jury was
    satisfied that Mr. Batisse was unarmed, although the verdict strongly suggests
    that conclusion.  It was, however, open to the trial judge on the evidence to
    find for the purposes of sentencing that Mr. Batisse was unarmed:  see
Criminal
    Code
, s. 724(3)(a)(e).  In any event, it does not appear to me that the
    trial judge treated the fact that Mr. Batisse was unarmed as a separate
    aggravating factor on sentence.

[67]

Counsel
    also submitted that the trial judges finding that the murder was an
    execution was inconsistent with the jurys verdict acquitting the appellant
    on the charge of first degree murder.  The trial judges language may be open
    to the interpretation urged by counsel.  It must, however, be read in the
    context of the verdicts.  The trial judge was clearly alive to the fact that
    the appellant was acquitted on the charge of first degree murder.  I read the
    trial judge as indicating that the appellant waited outside of the bar to
    avenge the disrespect he had suffered at Mr. Batisses hands in the bar.
    When Mr. Batisse emerged and continued to treat the appellant with disdain, the
    appellant decided to kill him.  He pulled out his gun and fired four times from
    close range, striking Mr. Batisse in the chest twice.  I take this to be the
    basis for the trial judges description of the murder as an execution.

[68]

The
    sentence imposed by the trial judge is not out of line with sentences imposed
    in similar cases involving youthful offenders convicted of second degree
    murder:  see
Danvers
,
supra
;
R. v. Stewart
, 2014
    ONCA 70, affg, [2008] O.J. No. 5449.  I cannot say that the sentence is
    manifestly excessive.

[69]

I
    would dismiss the sentence appeal.

Released: DD  AUG 28 2015

Doherty J.A.

I agree G.R. Strathy
    C.J.O.

I agree Eileen E.
    Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Garcia-Machado, 2015 ONCA 569

DATE: 20150807

DOCKET: C58506

Hoy A.C.J.O., Feldman and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Gilberto Garcia-Machado

Respondent

Jocelyn Speyer, for the appellant

Carolyne Kerr, for the respondent

Heard: March 18, 2015

On appeal from the acquittal entered on February 18,
    2014 by Justice Patrice François Band of the Ontario Court of Justice.

Hoy A.C.J.O.:

Overview

[1]

The respondent, Gilberto Garcia-Machado, crashed his vehicle into two
    trees. Armed with a valid search warrant, the police seized evidence critical
    to determining the level of alcohol in his blood. However, the responsible
    Constable misunderstood the requirements of s. 489.1(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46. He did not report to a justice as soon as is
    practicable after he had seized the evidence, as that section requires.

[2]

The trial judge concluded that the Constables failure to report as soon
    as is practicable breached s. 8 of the
Canadian Charter of Rights and
    Freedoms
. The trial judge excluded the evidence seized and acquitted the
    respondent.

[3]

This appeal by the Crown raises two questions:

1.

Did the Constables failure to file a timely report to a justice
    pursuant to s. 489.1(1) of the
Criminal Code
in relation to lawfully
    seized items breach s. 8 of the
Charter
?

2.

If so, did the trial judge err in excluding the evidence?

[4]

I agree with the trial judge that the Constables failure to file a
    timely report breached s. 8 of the
Charter
. However, in my view, the
    trial judge erred in excluding the evidence. I would accordingly allow the
    appeal, set aside the acquittal, and order a new trial.

Background

[5]

The respondent crashed on August 25, 2012. The respondent and his
    front-seat passenger were seriously injured and were transported to hospital,
    unconscious. There, medical staff drew blood from the respondent for medical
    purposes. The police had reasonable grounds to believe that the respondent was
    intoxicated. Constable Kosher placed a Centre of Forensic Sciences seal on one
    of the vials of blood drawn from the respondent. He then obtained a search
    warrant, authorizing him to seize the vial of blood and hospital records
    relating to the respondents treatment after the crash. It was apparent from
    the third appendix to the warrant application that the Constable intended to
    send the blood sample and records to the Centre of Forensic Sciences for
    analysis.

[6]

The warrant required the Constable to bring the seized items before the
    justice who issued the warrant or another justice to be dealt with according
    to law.

[7]

The Constable executed the warrant on August 28, 2012.

[8]

A toxicologist at the Centre of Forensic Sciences tested the vial of
    blood on September 13, 2012. The toxicologist also requested a copy of the
    hospitals laboratory results. In response, an officer gave her a copy of all
    the seized hospital records. She concluded that the respondents blood alcohol
    concentration at the time of the accident was over 80 milligrams of alcohol in
    100 millilitres of blood, and that the respondents level of intoxication would
    have impaired a persons ability to drive.

[9]

Section 489.1(1) of the
Code
(reproduced below) required the
    Constable to report to a justice as soon as is practicable that he had seized
    and was detaining the vial of blood and the hospital records.

[10]

The
    Constable testified that he thought s. 489.1(1) of the
Code
required
    him to report to a justice only when charges were laid. He did not know that
    the section required him to report to a justice as soon as is practicable.

[11]

The
    information charging the respondent with Impaired Driving Causing Bodily Harm
    and Over 80 Causing Bodily Harm was sworn on October 26, 2012. The Constable
    filed the report required by s. 489.1(1) on December 17, 2012  approximately
    fifteen weeks after the seizure, ten weeks after the Centre of Forensic
    Sciences had completed its evaluation, and seven weeks after charges had been
    laid against the respondent. The Constable explained that he filed the report
    when he had the opportunity to attend the courthouse during a day shift and
    that, because of his schedule, he did not have such an opportunity for some
    time.

Sections 489.1(1) and 490 of the
Criminal Code

[12]

Before
    considering the trial judges reasons, it is important to understand the scope
    of both ss. 489.1(1) and 490.

[13]

Section
    489.1(1) provides as follows:

489.1 (1) Subject to this or any other Act of
    Parliament, where a peace officer has seized anything under a warrant issued
    under this Act or under section 487.11 or 489 or otherwise in the execution of
    duties under this or any other Act of Parliament, the peace officer shall,
as soon as is practicable
,

(a) where the peace officer is satisfied,

(i) that there is no
    dispute as to who is lawfully entitled to possession of the thing seized, and

(ii) that the
    continued detention of the thing seized is not required for the purposes of any
    investigation or a preliminary inquiry, trial or other proceeding,

return the thing seized, on being issued a receipt
    therefor, to the person lawfully entitled to its possession and report to the
    justice who issued the warrant or some other justice for the same territorial
    division or, if no warrant was issued, a justice having jurisdiction in respect
    of the matter, that he has done so; or

(b) where the peace officer is not satisfied as
    described in subparagraphs (a)(i) and (ii),

(i) bring the thing
    seized before the justice referred to in paragraph (a), or

(ii) report to the
    justice that he has  seized the thing and is detaining it or causing it to be
    detained

to be dealt with by the justice in accordance with
    subsection 490(1). [Emphasis added.]

[14]

Section
    489.1(1) applies to both warrantless common law seizures and seizures pursuant
    to a warrant:
R. v. Backhouse
(2005), 194 C.C.C. (3d) 1 (Ont. C.A.),
    at paras. 113, 115.

[15]

Importantly,
    s. 489.1(1) is the gateway to s. 490. As Rosenberg J.A. explained in
Backhouse
,
    at para. 112:

Section 490 provides that where things have been brought before
    a justice or a report made to a justice in respect of anything seized under s.
    489.1, there is an obligation on the justice to supervise its detention. The
    section also sets out an elaborate scheme to facilitate the return of items
    seized to their lawful owners.

[16]

If
    a peace officer fails to file a report under s. 489.1(1), the property seized
    is not subject to judicial supervision during the investigation under s. 490.
    The real importance of s. 489.1(1) is its link to s. 490.

[17]

In
R. v. Raponi
, 2004 SCC 50, [2004] 3 S.C.R. 35, at para. 28, McLachlin
    C.J.C. described s. 490 as purporting to provide a complete scheme for dealing
    with property seized in connection with crime. Section 490 is lengthy. To
    provide context for my analysis below, I outline some of its principal
    provisions, although in very broad terms. The interpretation of these
    provisions is not at issue on this appeal.

[18]

Under
    s. 490(1), the justice to whom a report is made under s. 489.1(1)(b) is
    required to order the return of the property to the lawful owner or a person
    lawfully entitled to possession of the item unless the justice is satisfied
    that detention of the item is required for the purposes of any investigation
    or a preliminary inquiry, trial or other proceeding. In that case, the justice
    may order the item detained for up to three months.

[19]

Under
    ss. 490(2) and (3), if the justice is satisfied that, having regard to the
    nature of the investigation, the detention of the item for a further period is
    warranted, the justice may extend the detention for successive periods, but not
    for more than a year in total. Importantly, notice of each application to the
    justice for further detention must be given to the person from whom the thing
    detained was seized.

[20]

Section
    490(3) requires an order from a judge of a superior court
[1]
to detain the item for more than a year, unless proceedings have been
    instituted in which the thing detained may be required.

[21]

Section
    490(4) provides that if the accused is ordered to stand trial, the justice is
    required to forward anything detained to the clerk of the court.

[22]

Sections
    490(7) and (8) permit the person from whom the item has been seized to apply
    for the return of the item seized after the expiry of the detention period or,
    in the case of hardship, before the expiry of the detention period.

[23]

Section
    490(10) permits a person (other than the person from whom the item was seized)
    who claims to be the lawful owner or a person lawfully entitled to possession
    of the thing seized to apply for an order to return the thing.

[24]

Section
    490(13) permits the Attorney General, the prosecutor, the peace officer, or
    other person having custody of a document to make and retain a copy of the
    document before bringing it before a justice or returning it to a person.

The trial judges reasons

[25]

The
    trial judge noted that the vast majority of Ontario cases he had reviewed
[2]
suggest that a failure to comply with the return and report provisions in s.
    489.1(1) of the
Code
is a breach of s. 8 of the
Charter
. At
    para. 51, he wrote that the respondent had a high expectation of privacy in
    the items seized, both of which contain a high level of personal and private
    information.

[26]

At
    para. 54, he cited S. Hutchison et al.,
Search and Seizure Law in Canada
,
    loose-leaf (Toronto: Carswell, 2005), at p. 18-1:

[I]t is often only during the ongoing detention that the
    governmental intrusion into the privacy interests of the individual are
    realized. It is detention which allows examination, copying, and forensic
    testing. These aspects of the seizure, as much as the initial search itself,
    would seem to engage the interests of the individual which s. 8 of the
Charter
was intended to protect. As such, the ongoing detention should meet the same
    constitutional standard that the original seizure is measured against, that is,
    reasonableness.

[27]

The
    trial judge concluded, at para. 55:

In this case, based on the authorities and the highly personal
    and private information at issue, I find that the police failure to report to a
    justice as soon as practicable rendered the otherwise valid search unlawful and
    unreasonable, contrary to s. 8 of the
Charter
.

[28]

He
    then considered whether to exclude the evidence having regard to the three
    factors identified in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353,
    at para. 71.

[29]

He
    concluded that the first
Grant
factor  the seriousness of the
Charter
-infringing
    state conduct  weighed heavily in favour of exclusion. He found, at para. 60,
    that the Constables actions were symptomatic of an institutional and systemic
    problem. He noted that in
R. v. Villaroman
, 2012 ABQB 630, 557 A.R. 1,
    at para. 131, the court found that non-compliance with these provisions was a
    not uncommon situation in police forces across Canada.  And in
Cunliffe
,
    the trial judge continued, Justice Corbett described the situation as a matter
    of institutional concern. The trial judge observed that Ontario jurisprudence
    has held for nearly thirty years that a police officer acts unlawfully if the
    officer fails to report or return on a warrant. He determined that the fact
    that the Constables colleagues and superiors knew no better was evidence that
    the problem did not rest exclusively with the Constable.

[30]

The
    trial judge reasoned that while the Constable had not acted dishonestly, in bad
    faith, or with wilful or reckless disregard for the law, he was careless and
    negligent.

[31]

The
    trial judge wrote, at para. 65:

The breach in this case is not minor or technical, but
    substantive. It involves provisions of the
Criminal Code
that are
    essential to maintaining the courts supervision of investigative steps that
    invade the privacy of individuals. The police failure to comply with those
    provisions in this case had the effect of ousting the court from its
    supervisory role until after all additional investigative steps had been taken
    in relation to items that were being held unlawfully. [Citations omitted.]

[32]

The
    trial judge also found that the second
Grant
factor  the impact on
    the
Charter
-protected interests of the accused  weighed in favour of
    exclusion. In his view, the state, in its analyses of the accuseds blood and
    medical records, had intruded into areas in which the accused held a high
    expectation of privacy.

[33]

The
    trial judge concluded that the final
Grant
factor  societys
    interests in adjudication on the merits  favoured admission of the evidence.
    He noted that the case involved a very serious accident and significant injury
    to the driver and passenger. The evidence was highly reliable and very
    important, if not necessary, to the Crowns case.

[34]

Balancing
    these three factors, the trial judge concluded that, because of the seriousness
    of the
Charter
breach, he must exclude the evidence.

Conflicting jurisprudence

[35]

Before
    analyzing whether the Constables violation of s. 489.1(1) breached s. 8 of the
Charter
, I will briefly address what the parties describe as
    conflicting jurisprudence on whether failure to comply with s. 489.1(1)
    breaches s. 8 of the
Charter.

[36]

As
    the trial judge noted, a number of cases support the view that failure to
    comply with s. 489.1(1) renders the continued detention of a seized item
    unreasonable and contrary to s. 8 of the
Charter
.
[3]
On the other hand, the Crown points to a number of cases it argues support the
    view that failure to comply with s. 489.1(1) does not breach s. 8 of the
Charter
:
[4]

[37]

I
    do not propose to review these cases. As I discuss below,
R. v. Colarusso
,
    [1994] 1 S.C.R. 20, and its holding on the reach of s. 8 play a central role in
    the analysis of whether failure to file a timely report under s. 489.1(1) breaches
    s. 8 of the
Charter
. Some of the cases, including this courts
    decision in
R. v. Church of Scientology of Toronto
(1987), 31 C.C.C.
    (3d) 449 (Ont. C.A.), which the Crown relies upon, pre-date
Colarusso.
The
    other cases do not invoke
Colarusso
on the question.

[38]

I
    now turn to the main issue on this appeal.

Did the Constables failure to
    file a timely report to a justice pursuant to s. 489.1(1) of the
Criminal
    Code
in relation to lawfully seized items breach s. 8 of the
Charter
?

[39]

Section
    8 of the
Charter
provides that: Everyone has the right to be secure
    against unreasonable search or seizure. Section 8 of the
Charter
protects an individuals reasonable expectation of privacy:
R. v. Dore
(2002), 166 C.C.C. (3d) 225 (Ont. C.A.), at para. 42.

[40]

In
Colarusso
, at pp. 61, 63-64, the Supreme Court of Canada made it clear
    that s. 8 continues to apply to protect a persons privacy rights in seized
    items during detention of those seized items.

[41]

In
    that case, a coroner, acting under the
Coroners Act
, R.S.O. 1980, c.
    93, seized a drivers blood and urine samples from a hospital in order to
    decide whether to hold an inquest into a death. The police eventually took the
    evidence to use against the driver in a criminal proceeding. The Supreme Court
    concluded that the seizure, which was reasonable as long as the coroner seized
    the evidence, was unreasonable from the point at which the police took the
    evidence. At para. 91, La Forest J., writing for the majority, said this:

[I]t must be understood that the protection against
    unreasonable seizure is not addressed to the mere fact of taking. Indeed, in
    many cases, this is the lesser evil. Protection aimed solely at the physical
    act of taking would undoubtedly protect things, but would play a limited role
    in protecting the privacy of the individual which is what s. 8 is aimed at, and
    that provision,
Hunter
[
v. Southam Inc.
, [1984] 2 S.C.R. 145]
    tells us, must be liberally and purposively interpreted to accomplish that end.
The matter seized thus remains under the protective mantle
    of s. 8 so long as the seizure continues
. [Emphasis added.]

[42]

To
    the extent this courts decision in
Church of Scientology
held that s.
    8 of the
Charter
does not apply to the act of detention, it was
    overtaken by
Colarusso
.

[43]

This
    court has already determined that detention of property in breach of s.
    489.1(1) is unlawful:
Backhouse
, at para. 115. However, as Rosenberg
    J.A., writing for the court, added at para. 115:

It does not necessarily follow, however, that the continued
    unlawful detention violated the appellants
Charter
rights. The
    initial search and seizure was lawful and complied with the
Charter
. I
    need not decide whether the subsequent failure to comply with s. 489.1 could

render the initial lawful seizure unreasonable. However, see
Re Church
    of Scientology et al. and the Queen. (No. 6)
(1987), 31 C.C.C. (3d) 449
    (Ont. C.A.) at 543-547.
[5]
Even if the detention of the clothing did violate the appellants rights under
    s. 8, I would not exclude the evidence obtained by the analysis of the
    appellants jacket.

[44]

The
    question on this appeal is whether the Constables failure to comply with the
    requirements in s. 489.1(1) to make a report to a justice as soon as
    practicable also rendered the continued detention of a seized item unreasonable
    and therefore contrary to s. 8 of the
Charter
.

[45]

I
    conclude that the answer to that question is yes. As I have explained, it is
    clear that an individual retains a residual, post-taking reasonable expectation
    of privacy in items lawfully seized and that
Charter
protection
    continues while the state detains items it has taken. Sections 489.1(1) and 490
    govern the continued detention by the state of the items seized and, I
    conclude, the requirement in s. 489.1(1) to report to a justice as soon as
    practicable plays a role in protecting privacy interests. The Constables  post-taking
    violation of s. 489.1(1) by failing to report to a justice for more than three
    months after seizure of the blood and hospital records compromised judicial
    oversight of state-detained property in which the appellant had a residual
    privacy interest. It therefore rendered the continued detention unreasonable
    and breached s. 8. The fact that a person may have a diminished reasonable expectation
    of privacy after a lawful, initial police seizure and that in a particular case
    there may have been virtually no impact on that expectation will be important
    factors in the analysis under s. 24(2) of the
Charter
. However, they
    will not render continued detention after a clear  violation of the requirement
    in s. 489.1(1) to report to a justice as soon as practicable reasonable.

[46]

It
    is established law that in order to be reasonable, a seizure must be authorized
    by law:
R. v. Collins
, [1987] 1 S.C.R. 265, at p. 278;
R. v.
    Caslake
, [1998] 1 S.C.R. 51, at para. 10. If seized property is detained
    without complying with s. 489.1(1), then its continued detention is not
    authorized by law:
Backhouse
, at para. 115.

[47]

Although
    one could conceive of provisions governing retention that would not relate to
    the protection of privacy, ss. 489.1(1) and 490 were enacted to regulate state
    activity that interferes with privacy interests, as Rosenberg J.A. explained
    in
Backhouse
, at para. 110:

Although s. 489.1 was an early enactment after proclamation of
    the
Charter
it reflects
Charter
values and principles. It
    favours judicial supervision. It is part of a scheme that includes s. 490 and
    that is
designed to regulate state activity that interferes
    with privacy interests
. [Emphasis added.]

[48]

As
    I explain below, the requirement in s. 489.1(1) to report to a justice as soon
    as practicable plays a role in protecting an individuals residual, post-taking
    reasonable expectation of privacy. I therefore conclude that the Constables
    clear failure to comply with that obligation breached s. 8.

[49]

One
    indicator of the privacy-related role of s. 489.1(1) is the fact that the form
    of the warrant authorizing the initial seizure
required
the peace
    officer to comply with s. 489.1(1) ([T]his is to authorize and require you to
    bring [the seized things] before me or some other justice to be dealt with
    according to law).

[50]

A
    second indicator is the substance of the provision itself. Section 489.1(1)
    requires a peace officer who wishes to detain a thing seized to bring the thing
    before a justice or report to a justice that he or she has seized the thing. It
    engages judicial oversight of state-held property in which privacy interests
    subsist. It also ensures that a record is made of what was actually seized.
    Such a record may be critical if a person seeks to assert that the initial
    seizure was overly broad or that the state does not need the item seized for
    its investigation.

[51]

A
    third  indicator of the role of s. 489.1(1) is the nature of the rights s. 490
    provides to individuals whose property has been taken. Two  aspects of that
    section are particularly important.

[52]

First,
    s. 490(2) requires the state to give notice to the person from whom the
    detained thing was seized if the state wishes to obtain an extension beyond the
    initial three-month detention period. Notice gives the affected person the
    opportunity to argue that the nature of the investigation does not warrant
    further detention of the item seized. If the state does not need the item for
    the purpose envisaged when it seized it, and the states continued detention of
    the property is not otherwise legally justified,
[6]
the individuals privacy interest should prevail. Moreover, notice under s.
    490(2) may be the only way an affected individual learns exactly which items
    the state has taken. For example, as the result of a peace officers failure to
    make a return on the warrants, the defendants in
Guiller
were not
    fully apprised of what was seized until the items were introduced at trial.

[53]

In
R. v. Tse
, 2012 SCC 16, [2012] 1 S.C.R. 531, the Supreme Court
    highlighted the importance of notice where privacy is at issue. Section 184.4
    of the
Code
(the emergency intercept provisions)

did not
    provide after-the-fact notice to individuals whose communications the police
    had intercepted without prior judicial authorization. The court held, at para.
    85, that s. 184.4 violated s. 8 because it did not include post-intercept
    notice or any other specific mechanism to permit supervision of police
    intercept activity. Moldaver and Karakatsanis JJ., writing for the court,
    adopted this statement, at para. 83:  The right to privacy implies not just
    freedom from unreasonable search and seizure, but also the ability to identify
    and challenge such invasions, and to seek a meaningful remedy.  Although made
    in a different context, this comment is apposite. Notice under s. 490(2) may
    provide an affected individual with the ability to challenge the necessity of
    the continued detention of items seized.

[54]

A
    second important aspect of s. 490 is that it provides the lawful owner of the
    item seized, a person lawfully entitled to possession of the item seized, or the
    person from whom the item was seized the right to apply for return of the item
     the meaningful remedy that
Tse
adverts to. Return of the seized  items
    reduces or eliminates the risk that the state will violate the persons
    residual privacy interest. As Rosenberg J.A. noted, at para. 113 of
Backhouse
,
    s. 490s relatively summary procedure is much preferable to a more cumbersome
    and expensive replevin action in civil court.

[55]

The
    recording of the items seized, the right to notice and the right to apply for
    return of things seized confer important protections on people whose items the
    state holds in detention. Compliance with s. 489.1(1) is the gateway to all of
    these protections. The appellant failed to report to a justice for over three
    months after the blood and hospital records were seized. Effective judicial
    oversight of property in which the appellant maintained a residual privacy
    interest was compromised. I conclude therefore that the Constables clear failure
    to comply with the requirement in s. 489.1(1) that he report to a justice as soon
    as practicable breached s. 8 of the
Charter
. I leave for another day
    whether any other breach of s. 489.1(1) or any breach of s. 490  even if so minor
    or technical as to have no real impact on the judicial oversight contemplated
    by the sections  would breach s. 8 of the
Charter
.

[56]

I
    turn next to whether the trial judge erred in excluding the evidence.

Did the trial judge err in excluding the evidence pursuant to
    s. 24(2) of the
Charter
?

[57]

Where
    a trial judge has considered the proper factors and has not made any
    unreasonable findings, his or her decision to exclude evidence under s. 24(2)
    is owed considerable deference on appellate review. However, if relevant
    factors have been overlooked or disregarded, a fresh
Grant
analysis is
    both necessary and appropriate:
R. v. Cole
, 2012 SCC 53, [2012] 3
    S.C.R. 34, at para. 82.

[58]

As
    I explain below, the trial judge failed to consider a number of relevant
    factors in assessing the seriousness of the breach and the impact of the breach
    on the
Charter
-protected interests of the respondent. Conducting a
    fresh
Grant
analysis with reference to all of the relevant factors, I
    would not exclude the evidence.

[59]

In
    my view, the trial judge failed to consider the following relevant factors.

[60]

First,
    he did not expressly consider that the initial search was authorized by a
    warrant. Before the Constable seized the evidence, a justice had already
    balanced the very significant privacy interest of the respondent in his blood
    and his medical records against the interest of the state in investigating the
    crash: see
R. v. Vu
, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 46.

[61]

Second,
Cole
instructs that in assessing the impact of a breach, a trial judge
    should consider the nature of the respondents reasonable expectation of
    privacy at the time of the breach. In
Cole
, a work-issued laptop
    computer was seized without a warrant. The Supreme Court, at para. 92, found
    that the trial judge, in assessing the impact of the breach, had failed to
    consider the applicants diminished reasonable expectation of privacy in a
    work-issued computer. Similarly, here the trial judge failed to consider that
    the respondent had a minimal residual privacy interest in the blood sample and
    the hospital records when the reporting period under s. 489.1(1) lapsed.

[62]

Third,
    the trial judge did not consider that the property seized was that specifically
    authorized by the warrant and that the property was used for the precise
    purpose for which it was obtained. No event subsequent to the issuance of the
    warrant necessitated a re-balancing of the respondents privacy interest
    against that of the state in investigating the incident. While the respondent
    had an objectively reasonable expectation that the property would not be used
    for any purpose other than that for which it was obtained, he did not have an
    objectively reasonable expectation that the property seized would not be used
    for the very purpose for which it was lawfully obtained.

[63]

Fourth,
    had the Constable made the requisite report as soon as is practicable, the
    justice of the peace would undoubtedly have ordered detention of the evidence.
    The police indisputably needed the blood sample and the hospital report for the
    investigation. This inevitability factor was a consideration in
Cole
.
    There, in assessing the impact of the breach, the Supreme Court took into
    account the fact that had the officer complied with the applicable
    constitutional requirements, the evidence would necessarily have been
    discovered:
Cole
, at para. 93.

[64]

Fifth,
    the trial judge did not focus on the nature of the property at issue. The
    respondent was not deprived of the use or enjoyment of the items. The items at
    issue are much different than a smart phone or a computer. Practically, it did
    not matter to the respondent if the state continued to detain the items and
    deprived the respondent of the opportunity to have them returned.

[65]

Sixth,
    this was a case of delayed compliance, not of complete non-compliance.

[66]

And,
    finally, in the case of the hospital records, the impact of the breach on the
    respondents residual privacy interest was even less than in the case of the
    blood sample. Section 490(13), referred to above in my discussion of s. 490,
    provides as follows:

The Attorney General, the prosecutor or the peace officer or
    other person having custody of a document seized may, before bringing it before
    a justice or complying with an order that the document be returned, forfeited
    or otherwise dealt with under subsection (1), (9) or (11), make or cause to be
    made, and may retain, a copy of the document.

Hence, even if the respondent had been given notice
    and obtained return under s. 490, the state would have been entitled to retain
    a copy of the hospital records.

[67]

I
    acknowledge the trial judges concern that the Constable, although he did not
    act dishonestly, in bad faith, or with wilful or reckless disregard for the
    law, was not familiar with the timing requirement of s. 489.1(1), despite its
    enactment nearly thirty years ago. I also acknowledge that, based on the
    Constables evidence, the trial judge found the Constables colleagues,
    including some superiors, were similarly ill-informed. Nonetheless, considering
    all the factors outlined above, I would without hesitation characterize the
    seriousness of the breach in this case as minor or technical.

[68]

Based
    on the factors outlined above, I also conclude that in this case, the breach
    had no real impact on the respondents
Charter
-protected interests.
    And, as the trial judge determined, societys interest in the adjudication on
    the merits favours admission of the evidence. The case involved a serious
    accident that resulted in significant injury. The evidence makes up a critical
    piece of the Crowns case.

[69]

Balancing
    the three
Grant
factors, I would not exclude the evidence.

Disposition

[70]

In
    the result, I would allow the appeal, set aside the respondents acquittal, and
    order a new trial.

Released: August 7, 2015 (A.H.)

Alexandra
    Hoy A.C.J.O.

I
    agree K. Feldman J.A.

I
    agree Paul Rouleau J.A.

[1]
Section 490(3) refers to a judge of a superior court of criminal jurisdiction
    or a judge as defined in section 552.... Section 552 permits a judge of the
    Court of Quebec or a judge of the Nunavut Court of Justice to grant such an
    order.

[2]
The trial judge cited
R. v. Noseworthy
, [1995] O.J. No. 1759 (S.C.);
R.
    v. Pringle
, 2004 ONCJ 229, [2004] O.J. No. 4156;
R. v. Correia
, 2005
    ONCJ 435, [2005] O.J. No. 4722;
R. v. Cunliffe
, [2006] O.J. No. 3580
    (S.C.).

[3]
In addition to the cases referred to by the trial judge, see
R. v. Guiller
(1985), 25 C.R.R. 273 (Ont. D.C.), at pp. 291-94, 297-98 (addressing the return
    requirement under former s. 443. Section 445.1 (later s. 489.1) was not enacted
    until 1985);
R. v. Placek
, 2012 BCSC 1175, [2012] B.C.J. No. 2301, at
    para. 27;
R. v. Pickton
, 2006 BCSC 1098, 260 C.C.C. (3d) 232, at para.
    60;
R. v. Butters
, 2014 ONCJ 228, 311 C.C.C. (3d) 516, at para. 55;
R.
    v. Elez
(9 June 2014) Barrie (Ont. C.J.), at p. 15.

[4]
See
R. v. Church of Scientology of Toronto
(1987), 31 C.C.C. (3d) 449
    (Ont. C.A.), at pp. 546-50, leave to appeal refused, [1987] S.C.C.A. No. 257;
United
    States of America v. Mathurin
, 2013 ONSC 2575, [2013] O.J. No. 1957, at
    para. 92 (now under appeal to this court);
R. v. Minor
(10 January
    2012) (Ont. S.C.), at para. 27;
Villaroman
, at para. 149;
R. v.
    Persaud
, [2008] O.J. No. 5077 (S.C.), at paras. 54-56;
R. v. Superior
    Pharmacy Ltd
., [1997] O.J. No. 2270 (Gen. Div.);
Re Retention of
    Seized Goods
(1986), 59 Nfld. & P.E.I.R. 112 (Nfld. S.C. Trial Div.),
    at paras. 17-23;
Jim Pattison Industries Ltd. v. R.
(1985), [1984] 2
    F.C. 954 (Trial Div.), at p. 963;
R. v. Vienneau
, 2010 NBPC 19, 361
    N.B.R. (2d) 34, at paras. 19-26.

[5]
In that case, this court wrote, at p. 546, that if a search warrant is valid,
    it cannot be invalidated by any conduct subsequent to its issue.

[6]
See, for example,
Dore
, where this court found that the states
    retention, pursuant to legislation, of an accuseds fingerprints after charges
    were withdrawn was a reasonable seizure.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Grandine, 2015 ONCA 574

DATE: 20150814

DOCKET: M45296

(C59971)

R.A. Blair J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Philip Grandine

Appellant

Michael Lacy and Joanna Baron for the appellant

Roger Shallow and Katherin Stewart for the Crown

Heard and Released Orally: August 13, 2015

ENDORSEMENT

Background

[1]

Karissa Grandinethe appellants pregnant wifedrowned in the bathtub of
    the couples home in October 2011. Mr. Grandine was charged with and tried on a
    count of first degree murder. The jury acquitted him on the murder charge, but
    convicted on the included offence of manslaughter. The trial judge sentenced
    him to 15 years imprisonment.

[2]

Mr. Grandine has appealed his conviction and sentence. He seeks an order
    granting his release pending the disposition of the appeal pursuant to s.
    679(1) and (3) of the
Criminal Code
.

[3]

For me to grant such an order, Mr. Grandine must establish that:

(a) the appeal is not
    frivolous;

(b) he will surrender himself
    into custody in accordance with the terms of the order made; and

(c) his detention is not
    necessary in the public  interest.

[4]

The Crown accepts that Mr. Grandine is not a flight risk (b) and that
    his detention is not necessary for the protection of the public (an aspect of
    (c)). However, it opposes the application otherwise on the public interest
    ground and argues strenuously that both the conviction and sentence appeals are
    frivolous.

[5]

A consideration of the public interest factors involves weighing both:

(i) the need to ensure the
    protection and safety of the public (not in issue here); and

(ii) the need to balance the
    competing values of enforceability (public confidence in the administration of
    justice requires that judgments be enforced) and reviewability (public
    confidence requires that judgments be reviewed and that errors, if any be
    corrected, especially in the criminal field).

See
R. v. Farinacci
(1993), 67 O.A.C. 197, (Arbour J.A., at paras. 41-43;
R. v. Love
,
    [2012] O.J. No. 4083 (Epstein J.A., in Chambers).

[6]

It follows from this that the merits of the appeal and the public
    interest factors are interrelated, and counsel treated them in that fashion in
    the argument. It is therefore necessary to spend some time outlining the
    grounds of appeal and the parties positions in relation to them.

The Grounds of Appeal

[7]

The Crowns theory was thatbeing in the midst of an affair with another
    womanMr. Grandine had surreptitiously drugged his wife with a drug known as
    lorazepam (a drug with strong sedative effects) and then either caused her to
    take a bath, with the inevitable result that in her drugged condition she would
    drown, or deliberately placed her in the bathtub and incapacitated her himself.

[8]

The defence theory was that there was insufficient evidence to establish
    that lorazepam was a contributing factor in Ms. Grandines death and, even if
    there were, there was insufficient evidence to establish beyond a reasonable
    doubt that Mr. Grandine surreptitiously administered the drug to her. There was
    evidence that she was suicidal and may have self-administered the drug.

[9]

The jury acquitted Mr. Grandine of murder but convicted him on the included
    offence of manslaughter. After making findings of fact at the sentencing stage
    that he concluded were available to him on the record, the trial judge
    sentenced Mr. Grandine to 15 years in prison, essentially on the basis that
    this was a near murder.

Conviction

[10]

Mr.
    Grandine raises two grounds of appeal on conviction.

[11]

First,
    he submits that the trial judge erred when, in response to a jury question
    during deliberations, he left a new route to liability with the jury based on a
    new unlawful act that had not been raised previously by anyone or dealt with by
    counsel during the evidence or in their closing addresses, or by the trial
    judge in his charge. This ground of appeal arises from the following.

[12]

The
    trial, jury addresses and instructions to the jury to that point in time had
    proceeded on the basis that the unlawful act put forward by the Crownand
    underpinning a murder or manslaughter convictionwas Mr. Grandines
    surreptitious administration of the noxious drug to his wife (contrary to s.
    245 of the
Criminal Code
). Having done so, the Crown contended, he
    then caused her to get into (or put her in) the bathtub where she drowned (see
    Jury Instructions, paras. 318-322, to which there were no objections). In the
    second day of deliberations, however, the jury asked a question. The question
    was whether (regarding those paragraphs in the Instructions):

the knowledge of Karissa Grandine taking a bath and not
    stopping her [was] equivalent to causing her to get into the tub (knowing she
    is under the influence of lorazepam)?

[13]

The
    trial judge wrestled with this question overnight andover the objections of
    defence counseldecided that, in response to the question, there was an
    additional unlawful act basis upon which the jury could find liability,
    namely the failure of a spouse to provide the necessities of life contrary to
    s. 215 of the
Criminal Code
. He gave such an instruction, observing
    that the jurys question presupposed that Mr. Grandine knew that his wife had
    enough lorazepam in her system to suffer from its side effects (but not saying
    anything about his having administered the drug), that he knew she was going to
    take a bath and would get into the tub on her own volition, but that he took no
    steps to stop her when he knew the foreseeable risks.

[14]

Mr.
    Lacy contends that the trial judge erred in doing this. The trial judge, he
    says, in effect turned a question about causation into a question about a
    completely new unlawful act, leaving it open to the jury to convict on
    manslaughter without having to worry about whether Mr. Grandine had drugged his
    wife. This had the effect of changing the entire landscape of the case as it
    had been tried to that point in time. Mr. Lacy acknowledges that a trial
    judges role is to instruct the jury on all relevant questions of law that
    arise on the evidence, but he submits that this role is circumscribed by the
    need to ensure trial fairness: see
R. v. Ranger
(2003), 178 CCC (3d)
    375 (Ont C.A.), at para 133. Mr. Grandines right to a fair trial and to make
    full answer and defence was undermined as a result of this turn events, he
    says. Finally, he contends that the additional instruction was in itself
    erroneous because it failed to relate the evidence to the instructions given
    (indeed, he argues that the record did not support the instructions given).

[15]

Mr.
    Lacy raised a second argument on conviction as well. As I understand the
    argument, he submits that manslaughter by failing to provide the necessities of
    life is a different transaction than manslaughter by administering a noxious drug,
    and therefore could not form the basis for a conviction of the included offence
    of manslaughter on the charge as pursued against Mr. Grandine. In this respect,
    he relied on the brief dissent of McEachern C.J.B.C. in
R. v. McCune
,
    (1998) 131 C.C.C. (3d) 152 (B.C.C.A.).

[16]

On
    behalf of the Crown, Mr. Shallow submits that these grounds of appeal are
    frivolous and have no chance of succeeding. He argues that it is clear from the
    context of the jurys questionthe portion of the Instructions dealing with
    whether Mr. Grandine had administered the noxious drug to this wifeand from
    the trial judges answer that the answer was related to the causation question
    and did not take away the need for the jury to consider the administration
    issue. In any event, if it did, it corrected a previous error in the charge.
    The trial judge was responsible for providing the jury with correct legal
    instructions arising from the evidence, and did so. Mr. Grandines fair trial
    rights were not undermined because he and his counsel at all times knew that
    manslaughter was on the table and that juries are not bound by the factual
    theories of the Crown, the defence or the judge. The jury was only doing its
    job based on proper instructions from the trial judge. Mr. Shallow relies on
    cases such as
R. v. Picton
(2010), 257 CCC (3d) 296 (SCC) for the
    Crowns position.

Sentence

[17]

In
    terms of the sentence appeal, the main area of dispute is over the trial
    judges findings and whether the trial judge was entitled to make the findings
    he did for purposes of the sentencing. I do not think much turns on this for
    purposes of this bail hearing because, even if the appellant wins the day on
    this issue, the range of sentence to be imposed notwithstanding that, if the
    conviction stands, would take the matter well beyond the time required for
    disposition of the appeal.

Discussion

[18]

I
    pause to say at this pointbecause I know there are members of the family and
    perhaps the public who are affected by this case in the courtroomthat I
    recognize, and do not for one moment doubt, or attempt to minimize, the hurt,
    dismay and upset that family, friends and members of this couples community
    must feel as a result of these tragic events. That is evident from the victim
    impact statements that were filed on sentencing and, in any event, must be
    obvious.

[19]

My
    analysis proceeds on the premise that Mr. Grandine has been convicted of
    manslaughter, however, not murder, even if one accepts that the manslaughter
    was of a heightened character.

[20]

Without
    commenting further on the merits, and in spite of Mr. Shallows careful
    submissions, I cannot say at this stage that the conviction appeal is
    frivolous. I am satisfied that, at least on the first ground of appeal, Mr.
    Grandine has an arguable case to put forward.

[21]

With
    respect to the sentence appeal, the fitness of the sentence depends largely on
    the view of the facts that is to prevail. The trial judge gave thorough and
    careful reasons for arriving at the findings that he did and those findings, if
    legally correct, are entitled to deference. There is a legal issue to be
    determined on appeal whether he was legally entitled to engage in the exercise
    as he did, however. The success of that legal argument remains to be seen, but,
    again, I cannot say that it is frivolous at this stage.

[22]

Given
    those conclusions as to the merits, I am satisfied that the principle of
    reviewability outweighs the principle of enforceability in the circumstances.
    It is conceded that Mr. Grandine is not a flight risk. He abided by the terms
    of his bail for a lengthy period prior to trial without incident. He is
    obviously supported by a loving and caring family with whom he has strong ties
    and who are prepared to risk a substantial sum by way of providing security. I
    do not think, on the record, that he is likely to jeopardize their welfare by
    putting that at risk.

[23]

In
    the end, I am satisfied that Mr. Grandine has met his onus of establishing that
    his detention is not necessary in the public interest and that he has an
    arguable case to put forward. I will grant him an order for his release pending
    appeal.

[24]

I
    recognize this will be troubling for family and friends of the victim, and
    perhaps others. However, the ultimate result of this clear tragedy will be
    determined on the hearing of the appeal, and, for the reasons set out above, I
    am persuaded that the public interest in the administration of justice will not
    be undermined by the appellants release pending that determination.

[25]

Accordingly,
    an order will go granting Mr. Grandine his release pending the disposition of
    his appeal in terms of the draft order provided by counsel as amended and on
    which I have placed my fiat.

R.A. Blair J.A.