R v Lindsay, 2021 ABQB 684

Court of Queen’s Bench of Alberta Citation: R v Lindsay, 2021 ABQB 684 Date: 20210826 Docket: 170015663Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Trevor Ian James Lindsay Accused _______________________________________________________ Reasons for Judgment on Admissibility of Uncharged-Offence Evidence of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] This is partly a cautionary tale about a former Calgary police officer’s sentencing for a 2015 assault being long delayed by

an inquiry into a 2013 incident involving him and another Calgary citizen. [2] On June 21, 2019, I convicted Trevor Lindsay, then a Calgary Police Service officer, of aggravated assault of DanielHaworth in May 2015. [3] A two-day sentencing hearing was tentatively set for October 2019. As discussed below, sentencing was adjourned anumber of times, eventually to summer 2020.

In late July 2020, Crown requested (per my notes) a “revised 3-4 day sentencing hearing… on the basis that Crown plans to call additional evidence at the sentencing hearing.” [4] The Crown’s request for extra sentencing time was spurred by its wish to explore, at the sentencing hearing, an earlier(December 2013) incident involving then-Cst. Lindsay and another Calgary citizen (Godfred Addai-Nyamekye). Per the Crown, thisearlier incident (alleged assault by Cst.

Lindsay), if proved, would constitute an aggravating factor in the 2015-incident sentencing.Defence was agreeable to this request. [5] On August 20, 2020, counsel jointly advised that they required six days for a contested hearing exploring the 2013 incidentand that their earliest overlapping availability was April 26 to May 3, 2021 (six sitting days) i.e. approaching two years post-conviction.

The hearing was booked for, and started, on those days. [6] The exploration of the 2013 incident – effectively, a proof-of-aggravating-fact voir dire – began on April 26, 2021 and ranuntil May 4, 2021 (seven sitting days) and was incomplete then. In part, the problem was that Mr. Addai-Nyamekye advised, after directexamination by the Crown and about one hour of cross-examination by the defence, that he could not continue with cross-examination,due to post-traumatic stress. [7] We adjourned the sentencing voir dire to enable a psychological assessment of Mr. Addai-Nyamekye.

Between allowingtime for that assessment and finding commonly available time, the sentencing voir dire was adjourned to June 28, 2021. [8] It resumed then, albeit without the return of Mr. Addai-Nyamekye (despite the assessment’s conclusion that he was able, butunwilling, to continue with cross), and continued until July 6, 2021 i.e. a further six sitting days.

On three of those days, we sat late(once until 6 pm, and twice until 8 pm) i.e. we effectively sat the equivalent of at least another full day i.e. fourteen sitting days overall. [9] At the conclusion of the sentencing voir dire, I reserved judgment. [10] As explained below, I have concluded that the threshold test for admitting uncharged-offence evidence in R v Edwards,(2001) (ON CA), 54 OR (3d) 737 (CA) applied here, that if the Crown (or both parties) had applied, in summer2020, for permission to explore the 2013 incident as part of this sentencing, permission would have been denied, that the actual unfoldingof the voir dire shows that the risks of launching this inquiry were real, and that completion of the hearing does not compel retroactiveapproval of this exceptionally long sentencing detour. [11] However, I also find that, as between denying and granting such approval now, the interests of justice favour grantingapproval and, in turn, providing a decision on whether the Crown has proved an assault on Mr.

Addai-Nyamekye beyond a reasonabledoubt. [12] For the reasons outlined below (starting at page 30 – “H. Analysis of 2013 incident”), I find that it has. B. Proposed uses of uncharged-offence evidence on sentencing [13] The Crown here argued that the alleged 2013 incident is relevant to sentencing for the 2015 incident on two bases: (1) amaterial uncharged offence per paragraph 725(1)(

c) of the Criminal Code and (2) an event bearing on Mr. Lindsay’s character, in bothcases being an aggravating factor. C. Law on uncharged-offence evidence on sentencing Paragraph 725(1)(a) – uncharged offence [14] I start with para 725(1)(c), which states: In determining the sentence, a court … (

c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge. [15] There is no doubt that the allegations by the Crown against Mr. Lindsay could “constitute the basis for a separate charge.” The Crown’s theory is that Mr. Lindsay committed both assault and assault with a weapon (i.e. a taser) against Mr. Addai-Nyamekye inthe 2013 incident (as discussed further below.) [16] But did it “[form] part of the circumstances of the [2015] offence” i.e. the unrelated 2015 aggravated assault of Mr.

Haworth? [17] The Crown here cited R v Larche, 2006 SCC 56: ... whether facts form part of the circumstances of the offence must ultimately be resolved on a case-by-case basis. Broadly speaking,however, there do appear to me to be two general categories of cases where a sufficient connection may be said to exist. These twocategories, as we shall see, are not hermetic or mutually exclusive, and will often overlap.

The first would be connexity either in time or place, or both. This flows from the ideal animating s. 725(1)(c): In principle, a singletransaction should be subject to a single determination of guilt and a single sentence that takes into account all of the circumstances. Inits application, this principle is subject, of course, to the constraints fixed by Parliament in the governing provisions of the CriminalCode, including, notably, s. 725. In Edwards, Rosenberg J.A. refers to the concept of res gestae as applied in R. v. Gourgon (1981), (BC CA), 58C.C.C. (2d) 193 (B.C.C.A.).

The notion of res gestae — or “things done” (Black’s Law Dictionary (8th ed. 2004), at p. 1335) — relatesto a close spatial and temporal connection, and may therefore be helpful in this context. In R. v. Paré, (SCC), [1987] 2 S.C.R. 618, this Court considered whether culpable homicide perpetrated “whilecommitting” an indecent assault had to be “exactly coincidental” with the underlying assault, or merely form part of the same sequenceof events or transaction. Wilson J., for a unanimous court, adopted the transactional definition (see pp. 632 and 634).

Both res gestae and the phrase “while committing” are narrower than the expression “facts forming part of the circumstances ofthe offence” employed in s. 725(1)(c). The “circumstances” of an offence are more than the immediate transaction in the course ofwhich it transpires. Thus, in addition to encompassing the facts of a single transaction, s. 725(1)(

c) also applies, in my view, to thebroader category of related facts that inform the court about the “circumstances” of the offence more generally. “Facts” (or uncharged offences) of this sort that have occurred in various locations or at different times cannot properly be saidto form part of the transaction covered by the charge for which the offender is to be sentenced. Recourse to s. 725(1)(

c) maynevertheless be had where the facts in question bear so close a connection to the offence charged that they form part of thecircumstances surrounding its commission. In determining whether they satisfy this requirement of connexity, the court shouldgive appropriate weight to their proximity in time and to their probative worth as evidence of system or of an unbroken patternof criminal conduct. [paras 50-55] [emphasis added] [18] The Crown submitted that the December 2013 (Addai-Nyamekye) incident, the May 2015 (Haworth) incident, and a thirdincident in January 2016 (then-Cst.

Lindsay breaking a citizen’s phone in a vexatious-use-of-9-1-1 context) constitute: … a pattern of criminal conduct; the timing, location and context all suggest that it is unbroken. Unbroken means simply that thebehaviour indicates a pattern or modus operandi – similar behaviour in similar contexts (excessive use of force/actions against unrulydetainees). There is no requirement to show daily, weekly or monthly offending.

The pattern is not simply temporal, but is contextual. [19] The Crown emphasized that these three incidents (alleged or proven) happened within just over two years. [20] Defence tendered a call-out report from the Calgary Police Service reflecting then-Cst.

Lindsay’s involvement inapproximately 7,250 calls for police service between 2012 and 2017, of which approximately 2,750 involved (collectively) “check onwelfare”, “disturbance”, “suspicion person”, and “unwanted guest.” [21] The Crown did not offer any “pattern” cases supporting its view that the three incidents in question (if all proved) would besufficient, in the context of this call-out history, to form a sufficient pattern per Larche. [22] In my view, the 2013 incident might not form part of the “circumstances of the [2015] offence”, at best forming part of the“circumstances of the offender” in the sense described by Charron J. for the SCC majority in R v Angellilo, 2006 SCC 55 (para 31). [23] I do not have to decide whether 725(1)(

c) is actually a portal by which the 2013 allegations can enter into the 2015-incidentsentencing, in light of my conclusion (outlined below) that the “character evidence” portal is potentially available. [24] I turn next to the Crown’s character-evidence argument and the Edwards factors. “Character” dimension of uncharged-offence allegations [25] In R v Edwards, the Ontario Court of Appeal explored an alternative basis on which uncharged-offence allegations can bearon sentencing, namely, as illuminating the convicted person’s character, where it is relevant to sentencing.

Rosenberg JA explained: There are statutory provisions that do permit the use of evidence about the offender, even though that evidence also discloses thecommission of other crimes. First, s. 718(

c) and (

d) of the Criminal Code set out as two of the objectives of sentencing: (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; Neither of these objectives can be fairly achieved through sentencing without knowing something, and perhaps quite a bit, aboutthe background and character of the offender. The Crown, in this case, in effect put its case for admission of this evidence on theneed to separate this respondent from society. Consistent with the statutory provisions that I have set out above dealing with the pre-sentence report [s. 721] and admission of evidence,the courts have recognized that a sentencing judge has a broad discretion concerning the admission of evidence at a sentencehearing.

As Dickson J. said in R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368, 68 C.C.C. (2d) 477 at p. 414 S.C.R., pp.513-14 C.C.C.: One of the hardest tasks confronting a trial judge is sentencing. The stakes are high for society and for the individual. Sentencing is thecritical stage of the criminal justice system, and it is manifest that the judge should not be denied an opportunity to obtain relevantinformation by the imposition of all the restrictive evidential rules common to a trial. Yet the obtaining and weighing of such evidenceshould be fair.

A substantial liberty interest of the offender is involved and the information obtained should be accurate and reliable.

. . . . . The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base his sentence. He must have thefullest possible information concerning the background of the accused if he is to fit the sentence to the offender rather than to the crime. As is the case with evidence generally, admissibility depends upon the purpose for which the evidence is adduced. In this case, theCrown was not entitled to lead the evidence of Ms. Powell and Ms. Firth for the purpose of increasing the punishment that wouldotherwise be appropriate for the offence of attempted murder.

To do so would offend the provisions of ss. 718.1 (proportionality)and 725 (taking other offences into account). The prosecution was also not entitled to lead this evidence to attempt to extract somepunishment for those untried and uncharged offences. That would offend the presumption of innocence and s. 725. It is no answer tosay that the Crown should be able to use the evidence for those purposes if it proves the conduct beyond a reasonable doubt.

Suchreasoning undermines the basic tenet of our system that, absent compliance with s. 725, an offender can only be sentenced for crimes thathave been properly charged and proved at a trial of those offences.

In my view, evidence that discloses the commission by the offender of other untried offences is admissible for the purpose ofshowing the offender's background and character as that background and character may be relevant to the objectives of sentencing.That being said, the trial judge must have a discretion to refuse to admit the evidence where necessary to ensure that the accusedhas a fair hearing. [paras 39, 40, 46, 62, and 63] [emphases added] [26] Rosenberg JA then elaborated on the discretion to refuse to admit uncharged-offence evidence: I would suggest that in deciding whether to exclude evidence that discloses untried offences, the trial judge, in addition toconsidering the proposed use of the evidence, might consider some of the following: (

i) the nexus between the evidence and the offence for which the offender was convicted -- the closer the connection the more likelythe evidence will shed light on the circumstances of the charged offence; (ii) the similarity between the evidence and the offence for which the offender was convicted; (iii) the difficulty the offender may encounter in properly defending against the allegations in the proposed evidence; (iv) the danger that the sentence hearing will be unduly prolonged; (

v) the danger that the focus of the sentence hearing will appear to be diverted from the true purpose of imposing a fit sentence forthe charged offence that is proportionate to the gravity of the offence and the degree of responsibility of the offender in accordancewith s. 718.1; (vi) whether, as in Lees, the offender has adduced evidence of good character; and (vii) the cogency of the proposed evidence.

This is not intended to be an exhaustive list and, as different cases present themselves involving different issues, no doubt otherfactors will have to be taken into account. … [paras 64 and 65] [emphasis added] [27] In R v Roberts, 2006 ABCA 113 (SCC leave denied – ), the Alberta Court of Appeal endorsed thisapproach, first outlining the backdrop principles: An offender cannot be punished for unproven acts: Gardiner, supra; Brown, supra; R. v. Lees, (SCC), [1979] 2 S.C.R. 749.

Doing so would violate the presumption ofinnocence, the principle of proportionality, and statutory rules governing the imposition of sentence for unproven acts: Criminal Code, s.725. At the same time, it is imperative that a sentencing court have as much information as possible about the offender’s characterand background: R. v. Jones (1994), (SCC), 89 C.C.C. (3d) 353 (S.C.C.), Gardiner, supra; R. v. Donovan (2004), 272N.B.R. (2d) 279, 2004 NBCA 55 at para. 40; R. v.

Edwards (2001), (ON CA), 54 O.R. (3d) 737 (C.A.); R. v.Shoker (2004), 192 C.C.C. (3d) 176, 2004 BCCA 643 at para. 21. … evidence of untried acts is admissible during sentencing in some circumstances. The critical factor is the purpose for which theevidence is used: if the purpose is to punish the offender for acts that have not been tried, it cannot be admitted.

If, however, thepurpose is to illuminate the offender’s character and background, the evidence may be admissible, bearing in mindthe sentencing court’s discretion to exclude the evidence if necessary to ensure the offender gets a fair hearing. [paragraphs 19 and28] [emphasis added] [28] The Court of Appeal then applied the Edwards framework: i. nexus between the evidence and the offence for which appellant was convicted: There is no temporal nexus; nor were the same parties involved.

However, all three incidents occurred on the appellant’s land. ii. similarity between the evidence and the offence: The appellant suggests that any similarities are so few and so weak as to be almost meaningless. I do not agree. In both prior incidents,the appellant pointed a firearm at and verbally threatened persons on his property when frustrated by business dealings. Theprior incidents demonstrate a tendency to deal with people who thwart the appellant in business on his own property byproducing a firearm.

iii. difficulty in defending against the allegations: … The allegations of prior acts were made under oath [during a trial voir dire] and subject to cross-examination. The appellanttestified in response; so did his wife. Moreover, defence counsel was put on notice by the sentencing judge that he intended to usethe voir dire evidence in sentencing, and could have asked to adduce further evidence if necessary.

Even though this appellant had fullopportunity to respond, he failed to do so. iv. the danger that the sentencing hearing will be unduly prolonged: Any potential delay relates to the two potential witnesses to the first incident. There was a two-month gap between the verdict andthe sentencing decision, which occurred partly at the defence counsel’s request, and partly with their full acquiescence. It is likelythat the few remaining potential witnesses could have been marshalled within that time frame.

Moreover, the appellant stoodconvicted of second degree murder and faced a mandatory sentence of life imprisonment without possibility of parole for at least 10years.

Further delay to call these witnesses would have resulted in little or no unfairness to the appellant. v. risk of diverting the focus of the sentencing hearing: The second-degree murder conviction is much graver than the earlier allegations of pointing firearms; therefore, it is unlikely that thelatter would detract attention from the former. vi. good character evidence adduced by offender: The appellant did not introduce good character evidence, but the absence of good character evidence is not reason enough toexclude the evidence: Donovan, supra. vii. cogency of the proposed evidence: The voir dire evidence is relevant because it reveals an aspect of the appellant’s character that is not apparent from his excellentwork history and clean record.

Another factor considered by some courts is whether any objection was raised to the admission of the evidence duringthe sentencing hearing: R. v. Laberge (1995), 1995 ABCA 196 , 165 A.R. 375 (C.A.); Roud & Roud, supra; L. (J.C.), supra.In this case, the sentencing judge specifically invited defence counsel to address this issue, communicating his inclination to accept theevidence of the witnesses and to reject that of the appellant. While defence counsel argued that the voir dire evidence should be givenminimal weight, he made no objection to its admission. In

summary, these considerations favour admission of the voir dire evidence. I would dismiss this ground of appeal. [paras 32, 33, and35-41] [emphasis added] [29] In R v BM, 2008 ONCA 645, after referring to both Edwards and Roberts, the Ontario Court of Appeal identified acceptableuses for “background and character” evidence: … The background and character of the offender may be considered, for example, in order to assess the need for individual deterrence,rehabilitation, or the protection of the public.

Such information is essential for crafting a sentence suitable for a particularoffender. [para 11] [30] Many other cases confirm this threshold admissibility-of-uncharged-offence-evidence requirement i.e. upstream and distinct(if the evidence is ruled admissible) from a proceeding to resolve any contest over the allegations, which is what the parties here movedto directly. [31] In R v Flis, 2003 ABQB 44, Greckol J. (as she then was) applied the Edwards factors to screen out proposed new-chargesevidence: I conclude that the evidence of the untried alleged offences should be excluded.

Such evidence may be admissible for the purpose ofshowing the background and character of Mr. Flis, as that information may be relevant to the objectives of sentencing, includingthose inherent in the inquiry of whether a conditional sentence would be fit and proper. Such evidence may be admissible to help assessthe danger to the community posed by the offender while serving his sentence in the community in terms of the risk of his failing tocomply with court orders or re-offending. However, it remains necessary to consider the balance between prejudice and probative force.

There is no nexus or similaritybetween the alleged conduct while on judicial interim release and the offence before the court. There is potential prejudice to Mr. Flis inmaking a full answer to the new charges on an expedited basis without procedural preliminaries in the context of this sentence hearing,without which the fairness of the sentence hearing and the ultimate trial on the new charges may be prejudiced. The admission of theproffered evidence may well require further delay with the new charges assuming prominence out of proportion to the chargesfor which Mr. Flis now stands before the Court.

Though proof of the new charges would show that Mr. Flis has breached the terms ofhis judicial interim release, the Crown has not argued the new charges involve conduct inherently dangerous to the community, forexample, involving further trafficking in cocaine or acts of violence. Balancing the potential prejudice in permitting the admission of the evidence on these particular facts, at this stage of thesentencing process, against the probative force or potential benefit to be achieved by adducing evidence of the new charges, thebalance tips against the admission of the evidence.

Given the particular facts and circumstances of this case, I exercise my discretion torefuse to admit the evidence in order to preserve the right of Mr. Flis to a fair sentencing process and a fair trial on the new charges.[paras 36-38] [emphasis added]

[ 32 ] This procedure was also followed by Lynch J. in R v Heath , 2019 NSSC 309 i.e. an application by the Crown to admit evidence bearing on certain other-offence allegations (leading to charges), an exploration of the Edwards factors, and an admissibility decision (there, to exclude the proposed evidence): (

a) There is little [if] any nexus between the trafficking offence which is scheduled for sentencing relating to events in June 2016 and events in June 2019. The events are three years apart; (

b) While I have not heard the evidence, the offences of breach of recognizance and trafficking in Hydromorphone are not similar. The possession of Hydromorphone and cocaine charges are similar ; (

c) Mr. Heath is scheduled for trial on the new charges and should not have to defend the allegations twice and perhaps testify twice ; (

d) The sentencing has been prolonged as the sentencing had to be adjourned [apparently for four months] to hear the application by the Crown to admit the evidence in relation to the new charges; (

e) There is a danger that the sentence hearing will appear to be diverted from imposing a fit sentence for trafficking in Hydromorphone; (

f) Mr. Heath has not introduced evidence of good character ; (

g) The cogency of the evidence is not known . Weighing the above factors, the evidence would not be admissible .

I am also concerned that the prejudicial effect of the evidence would outweigh its probative value. [paras 30 and 31] [emphasis added] [ 33 ] The same threshold analysis was also undertaken in Mapara v British Columbia (Attorney General) , 2019 BCSC 895 (Gerow J.) (paras 8-16 ); R c Benjamin , 2018 QCCS 5937 (Labrie J.) at paras 65-98 ; R v Golic , 2017 BCSC 1679 (Humphries J.) (paras 15-25 ); R v Slater , 2014 ONSC 4017 (Parfett J.) at paras 15-35 ; R v Burns , 2010 SKPC 72 (Morgan J.); R v Khan and Chtirkova , 2009 BCPC 114 (Gulbransen PCJ) at paras 9-22 ; and R v McKay , 2004 MBQB 146 (Duval J.) at paras 10-15 . [ 34 ] That is what should have happened here i.e. a threshold application to determine whether the Haworth-incident sentencing should be diverted to explore the 2013 incident.

D. What happened instead [ 35 ] As noted, in late July 2020, the Crown advised that it wished to convert the originally scheduled two-day sentencing hearing into a “3-4 day sentencing hearing … on the basis that Crown wishes to call additional evidence at the sentencing hearing.” As it turned out, this was evidence of the 2013 incident. [ 36 ] In mid-August 2020, Crown and defence agreed that six days should be booked for the proposed sentencing hearing and that their first overlapping availability was April 26 to May 3, 2021.

Effectively both sides agreed to an inquiry, in the shape of a sentencing voir dire , into the 2013 incident. [ 37 ] But the parties did not apply, formally or informally, for an Edwards (or equivalent) ruling on whether that inquiry should occur (i.e. that the Crown’s 2013-incident evidence was admissible) i.e. as a precondition to conducting a contested hearing over whether that incident unfolded as alleged by the Crown. [ 38 ] In a recent communication (made in response to my recent questions to both Crown and defence about Edwards and whether it applied here), defence made the following points (in part): • [defence] has proceeded [i.e. to this point] “without calling upon the Court to exercise a discretion to exclude the proposed character evidence in a hearing that also and necessarily had to first address the s. 725(1) (

c) issue”; • “… [the defence] did not request that the Court exercise its discretion to exclude the character evidence. On several occasions, the Court has inquired about the possibility of preliminary argument aimed at exclusion of the evidence (prior to addressing the merits and determining whether it has been proved beyond a reasonable doubt), and the defence has indicated that it first needed to acquire and assess [2013-incident-related] disclosure and ultimately did not seek to invoke the Court’s discretion to exclude .

The defence incorrectly assumed that, when posing the question, the Court was referring to the discretion to exclude evidence if necessary to a fair hearing conferred by [ Roberts and Edwards ]”; • [September 8, 2020 pre-trial conference] “the Court raised the question of whether there was an extricable or threshold issue [or issues] in order to streamline the case.

Defence counsel noted that it “came back to the question of the evidential landscape”, and Crown counsel observed that it would be “difficult to argue in the abstract with the information we have so far”; • [October 23, 2020 pre-trial conference] “The Court asked if there was potentially a move on the part of the defence to seek a ruling that the December 28, 2013 incident was not appropriately part of the sentencing.

The defence indicated that it was probably premature to pre-argue either the s. 725 or … character issues ‘without first looking at all of the disclosure.’ The Crown was in agreement”; and • [January 23, 2021 pre-trial conference] “The Court inquired as to whether the defence would open by arguing that the December 28, 2013 event was not properly part of the sentencing exercise. Defence counsel responded that it was likely that everything would be argued at the end. The Crown agreed that it made sense to argue everything in an omnibus manner . The Court later asked if the

defence might be arguing that what happened in the earlier

chapter was not really part of the matrix of sentencing. The defence noted that the Crown had posited two avenues under which the evidence might come in and that the [character] and s. 725 issues were “overlapped and intertwined.” The Crown indicated that based on the assumption that the evidenced would be led as an aggravating factor of prior conduct or character it made sense to argue the matter on the back end .

Although not referenced at the time, it maybe useful to note here that consideration of extrinsic evidence such as character evidence may be undertaken “if none of the paragraphs of s. 725 are applicable” [per Angelillo (SCC)]. [emphasis added] [ 39 ] I accept this as an accurate capture of this dimension of our pre-trial discussions. [ 40 ] I also acknowledge that I was not aware of the Edwards/Roberts line of cases and thus of the need for a threshold exploration of proposed uncharged-offence evidence.

My questions to counsel were sparked only by a sense that we were possibly getting far afield of the 2015-incident sentencing. [ 41 ] Here is the critical problem, as reflected in the pretrial-discussions synopsis: the Edwards/Roberts discretion – whether to approve or decline exploration of uncharged-offence evidence – is for the Court to exercise, not the parties themselves. [ 42 ] It was not for the defence or Crown (or them jointly) to decide that the uncharged-offence inquiry should proceed i.e. for them to decide, by “not asking the Court to exercise its discretion to exclude uncharged-offence evidence”, that the full-on merits inquiry should launch. [ 43 ] That approach eclipsed the Court’s necessary supervisory role here i.e. to weigh whether, on balance, exploration of the 2013 incident was an appropriate (necessary, justified, fair) detour from the 2015-incident sentencing. [ 44 ] I also disagree that the “character pathway” to uncharged-offence evidence was contingent on para 725(1)(

c) not applying and, implicitly, the Court needing to first rule on that point. The referenced excerpt from Angelillo discusses alternative pathways to admission i.e. does not set up a hierarchy of remedies or require any particular sequencing. If the evidence in question qualifies, or may qualify, for the “character evidence” pathway, it does not matter whether the 725(1)(

c) pathway would or would not also have been available. [ 45 ] As I see it, the parties had a duty to seek a ruling, in advance, on whether the 2013-incident inquiry should be allowed, laying out the Edwards factors, the information available on each factor, and explaining why, on balance and in each party’s view, it was appropriate (or not) to conduct this hearing i.e. why the Crown should be permitted to introduce its other-offence evidence. [ 46 ] As Daley RSJ put it in Blake v Blake , 2019 ONSC 4062 : ... Judges cannot be expected to know all of the applicable law in a case. ...

The court cannot be expected to conduct its own independent research in every case.

When lawyers fail to bring forward relevant authorities, this can unduly increase the length of litigation when that authority is later discovered (or is raised on appeal), which in turns results in a hardship to the parties and the administration of justice . [para 34] [ 47 ] All to say: the parties bypassed the required threshold step of seeking a ruling on whether the Crown should be permitted to introduce evidence bearing on the 2013 incident at the 2015-incident sentencing i.e. before we all dove into what was effectively a “trial within a sentencing” of the 2013 allegations. [ 48 ] What should happen now?

E. Application of the Edwards test (circa summer 2020) [ 49 ] The first question is whether the Crown’s uncharged-offence evidence would have been ruled admissible i.e. if sought in advance. If so, the absence of an application might be viewed as a technical oversight only. [ 50 ] I accordingly apply the Edwards factors as though the Crown had sought an admissibility ruling on its uncharged-offence evidence in summer 2020. Nexus between alleged uncharged offence and conviction offence [ 51 ] No nexus here.

Unlike many of the cases in this realm, the alleged uncharged-offence is not part of the “constellation” (or larger context) of the conviction event e.g. other misconduct occurring at or close to the time and place of the conviction event. [ 52 ] Instead, we have events separated by approximately 1.5 years. [ 53 ] Of course, there is the “common denominator” factor that Mr. Lindsay was involved in both incidents.

But the cases do not suggest that this is a sufficient “nexus” factor on its own. [ 54 ] If it were, Rosenberg JA would presumably not have identified a separate “nexus” factor i.e. as a separate factor that may or may not be present in a given case. If “offender (or alleged offender) overlap” were sufficient (i.e. Cst. Lindsay involved in both incidents), it would be present in every case i.e. with the Crown effectively always saying “same person, different offence.” Similarity between alleged (uncharged) and conviction offences [ 55 ] The details of the 2015 incident are outlined in 2019 ABQB 462 .

In brief, following Mr. Haworth’s arrest for theft and

recognizance breach, transport to an arrest-processing centre and exit from a Calgary Police Service car, he and Cst. Lindsay were standing beside the car. Per Cst. Lindsay, Mr. Haworth was insufficiently compliant, justifying a punch to his face and (after perceiving continued non-compliance from now-bloodied Mr. Haworth, through to the latter apparently spitting blood at him) three further head punches and a throw-down. Mr. Haworth suffered a head trauma later revealed to have caused a brain injury.

I found that none of the punches or the thrown-down were reasonable uses of force or legitimate self-defence. [ 56 ] In the 2013 incident, the Crown alleges that then-Cst. Lindsay responded to a middle-of-a-cold-winter-night 9-1-1 call for assistance by Mr. Addai-Nyamekye, who had been driven to an isolated location in east downtown Calgary and dropped off for no good reason by two other CPS officers. Instead of assisting Mr. Addai-Nyamekye, Cst.

Lindsay chastised him for wasting 9-1-1 resources, pushed him without provocation, and proceeded to administer an indefensible beating for several minutes, the last portion of which was captured by a CPS helicopter. Aerial footage seems to show Cst. Lindsay kneeing and punching a downed Mr. Addai-Nyamekye before other officers arrive and take over the subduing and arrest of Mr. Addai-Nyamekye for assaulting Cst. Lindsay. (Per Cst. Lindsay’s account, Mr. Addai-Nyamekye was the aggressor and force advancer, with Cst. Lindsay defending himself throughout, and without excessive force. Mr.

Addai-Nyamekye was charged with but acquitted of that assault.) [ 57 ] Similarities exist here: both events featured interactions between Cst. Lindsay in his capacity as a police officer and unarmed civilians, perceived (by Cst. Lindsay) non-compliance by the civilians with his directions or instructions, perceived (by Cst. Lindsay) threats to his personal safety, the application of physical force to both individuals, and both individuals ending up on the ground under police control.

Both events were captured, at least in part, on video. [ 58 ] There are differences too: 2015 featured an arrested and handcuffed person, largely under police control; 2013 involved a person calling for police assistance with no (at least initial) basis for arrest or any particular police control. 2015 involved punches and a throwdown; 2013, punches, kneeing, and tasering. [ 59 ] For the purpose of this analysis, I will proceed on the basis of a material degree of similarity between the events.

Difficulty offender may have in properly defending against the allegations [ 60 ] As I understand it, defence received access to extremely detailed disclosure of police investigations of the 2013 incident, with both Crown and defence also receiving extremely detailed information about that incident from the Alberta Serious Incident Response Team, which investigated it in response to a complaint by Mr. Addai-Nyamekye against Cst.

Lindsay. [ 61 ] During the 13-day hearing (and aside from the complainant’s withdrawal from the proceeding, discussed later), defence did not argue that it was not able to respond properly to the allegations. From that, I infer that, if we were considering things from the perspective of summer 2020, when the Crown first proposed exploring the 2013 incident, defence would not have pointed to any particular defence difficulties.

Dangers the sentence hearing would be unduly prolonged and that attention would be unduly diverted from the Haworth-incident sentencing [ 62 ] These are critical factors here. [ 63 ] As far as I can tell, the Crown first raised exploration of the 2013 incident on July 29, 2020 (Crown seeking a “revised 3-4 day sentencing hearing … [where it] plans to call additional evidence at the sentencing hearing.”) On August 13, 2020, Crown and defence then asked about “2-6 day availability” for the sentencing hearing.

Per a court official on August 20, 2020, “Counsel are now advising that they require six days for a contested hearing … their first common available dates are April 26 to May 3, 2021.” [ 64 ] I infer that that long (eight-month) delay was effectively caused by the switch from two days to six days.

If the sentencing had remained on its original two-day track, it most likely could have been scheduled in fall 2020, as early as September, based on summer 2020 emails between the Court and counsel. [ 65 ] Plus, the pushback was effectively longer than the noted six-to-eight months: the parties approached the hearing as a stand- alone exploration of the 2013 incident, with implicit additional time required for (1) me to decide whether that incident occurred as the Crown alleged and (2) for the scheduling and hearing of the actual 2015-incident sentencing (itself requiring a minimum of two days). [ 66 ] All in all, the late July request to change the nature of the sentencing hearing and (by mid-August 2020) to expand it to six days effectively required a pushback of at least six months and probably more like eight or nine. [ 67 ] Most often long delays in sentencing are on account of appeals.

But that is not a factor here.

This long pushback was driven exclusively by the joint desire to explore the 2013 incident, via a full-blown contested hearing, before turning to the sentencing itself. [ 68 ] On this aspect, I also factor in ss 720(1) CC and the cases considering it below: A court shall, as soon as practicable after an offender has been found guilty , conduct proceedings to determine the appropriate sentence to be imposed. [ 69 ] In R v Andraecchi , 2008 ONCJ 206 , Filippis J. declined to adjourn a sentencing pending the expected release of a regulation, citing the unacceptability of a delay of as much as a year: ...

Generally speaking, delay in the criminal justice system should be avoided. Undue delay can be harmful to a defendant and compromise the public interest. Moreover, insofar as sentence is concerned, s. 720 of the Code directs that “A court shall, as soon as practicable after an offender has been found guilty , conduct proceedings to determine the appropriate sentence to be

imposed”. In appropriate cases other principles of sentencing may justify a departure from this direction. In these circumstances, forexample, delay might be warranted if the provisions and future date of the Regulation were known. In such a situation, an adjournmentrequest could be determined having regard to the applicable criteria set out in the regulatory scheme and an understanding of the lengthof delay. ... to grant the motion could delay sentence for up to a year or more.

In all the circumstances, I am of the opinion that there is nojustification to depart from the legislative direction in s. 720 of the Code. [paras 7 and 8] [emphasis added] [70] In R v Neil, 2001 ABQB 859, Veit J. commented on the potential effects of a delay in sentencing: Normally, a sentence is imposed as soon as practicable after conviction: this is mandated by the Criminal Code. The policyreflected in the Code obviously encompasses the interests of both the community and the accused in a sentencing and links asclosely as possible the sanctioning to the criminal activity.

In this case, adjournments have already been granted relative to the Juneand August guilty verdicts delivered by two juries. Granting a further, lengthy, adjournment might well have a substantive effectupon the sentencing itself: during the period of adjournment, Mr. Neil will continue to be bound by bail conditions which imposerestrictions on his liberty for which he may well have to be given credit on any eventual sentencing.

In these circumstances, anapplication for an adjournment is equivalent to a request for a stay. [para 18] [emphasis added] [71] In Bird v Nova Scotia (Attorney General), 2007 NSSC 45, Wright J. observed: In my view, Judge Murphy properly considered this uncertainty over the proper legal

interpretation and effect of s.753(2), in the exerciseof her discretion to dismiss the defence application.

Section 720 speaks in the imperative that the court shall, as soon as practicable,conduct a sentencing hearing but the words “as soon as practicable” likewise confer a discretion on the court as to when thesentencing ought to properly proceed. Here there was no ulterior purpose for delaying the determinate sentencing of Mr. Birdsuch as was found in other cases referred to by defence counsel.

Rather, it is apparent to me from reading the transcript of herdecision that she did not want to run the risk of pre-empting the Crown from later bringing a Dangerous Offender application. [72] In R v Small-Buffalo, 2009 ABQB 353, Greckol J. (as she then was) surveyed the s. 720 case law before applying identifiedprinciples to the case before her: In addition to the Wells decision, I have also has considered s. 720 of the Criminal Code, which states: “A court shall, as soon aspracticable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed.” The caselaw indicates that it is improper for the trial court to delay imposition of the sentence for a collateral purpose.

In R. v. W.B.T. (1995), (SK CA), 104 C.C.C. (3d) 346, the Saskatchewan Court of Appeal addressed the scope of ajudge’s powers of adjournment on sentencing. Based on s. 570(1) of the Criminal Code, the court noted (at para. 9) that the first duty ofthe trial judge, to “endorse the information accordingly,” is administrative in nature while the second duty, to “sentence the accused orotherwise deal with the accused in the manner authorized by law,” is judicial.

In the performance of this latter duty, the trial judge is“empowered to adjourn the sentencing proceedings for such length of time and for such purposes as fall within the contemplation ofthese and other provisions of the Criminal Code.” The trial judge may adjourn for reasonable periods of time to conduct asentencing hearing of one kind or another, to obtain an assessment of the accused’s mental condition, to get a pre-sentencereport, to receive a victim impact statement or to reflect on a fit sentence.

However, the court in W.B.T. held that it was improperfor the trial judge to adjourn the sentencing for a year in order to implement the recommendations of a sentencing circle. Such anadjournment was beyond anything contemplated by the law (at para. 15). Situations in which it is inappropriate to adjourn sentencing have been discussed in other appellate court decisions as well. In R. v.Fuller, (MB CA), [1969] 3 C.C.C. 348 (Man.

C.A.), the Manitoba Court of Appeal held that it was improper toadjourn sentencing proceedings for a period of six months following the receipt of a pre-sentence report in order to determinehow the accused “would conduct himself during that intervening period.” In R. v.

Urton, (SK CA), [1974] 5 W.W.R. 476 at para. 5, the Saskatchewan Court of Appeal expressed the view thatthe offender is to be sentenced for the offences which he committed and it would be improper to consider his subsequent conduct,particularly over a long span of time, as the trial judge would then be considering matters not in existence at the time the offence wascommitted. In R. v. A.P.N. (1976), (ON CA), 30 C.C.C (2d) 199 at para. 14 (Ont.

C.A.), Jessup J.A., for the majority, was notprepared to cast doubt on those cases which hold that post-offence conduct of the offender may, in some circumstances, be a relevantconsideration with respect to the appropriate disposition or sentence. However, he advised that while a trial judge has some discretion topostpone sentencing, it is an illegal purpose to do so in order to determine whether the accused makes restitution, co-operates with thepolice to recover goods, or aids in the investigation of others.

He also commented that postponing sentencing beyond a month or twomay be regarded as prima facie evidence of the exercise of judicial discretion for an illegal purpose. Ultimately, he held thatpostponing the sentencing hearing for just under five months in that case was not an illegal exercise of discretion, having regardto the youth of the accused in that case (16-years-old) and the objectives sought to be achieved by the trial judge (at para. 15). In R. v.

Shea (1980), (NS CA), 55 C.C.C. (2d) 475 at para. 9, the Nova Scotia Court of Appeal held that it wasimproper to delay sentencing for almost seven months in order to give the accused an opportunity to overcome or bring undercontrol his drug habit or otherwise to “prove himself” (see also R. v. Brisson (1989), (QC CA), 47 C.C.C. (3d) 474(Que. C.A.)). The Quebec Court of Appeal in R. v.

Cardin (1990), (QC CA), 58 C.C.C.(3rd) 221 held that it was not within thepowers of a sentencing judge to postpone sentencing so that the accused, a drug addict convicted of robbery, could attend atreatment centre to overcome his addiction. In light of the principles articulated in Wells, this Court concluded that it was both appropriate and practicable to order Mr. Small-

Buffalo to attend the 90-day substance abuse treatment program at the Poundmaker’s Lodge. …

Section 720 of the Criminal Code empowered this Court to adjourn the sentencing proceedings for a reasonable period of time for the purpose of conducting a proper sentencing hearing ( Taylor ). The sentencing hearing commenced on January 22, 2009 and was scheduled to reconvene on May 12-13, 2009. This short delay was reasonable considering the circumstances ( Nunner ). In the result, I ordered Mr.

Small-Buffalo to attend Poundmaker’s Lodge for assessment commencing January 23, 2009. [paras 26-33 and 35] [ 73 ] I also note the Ontario Court Appeal’s decision in R v Charley , 2019 ONCA 726 (paras 86-94 ), where a presumptive five- month outer limit for sentencing delay was approved. (The backdrop there was s 11(

b) of the Charter (right to be tried (and sentenced) in a reasonable time). [ 74 ] In R v Harker , 2020 ABQB 603 , my colleague Kubik J. declined to recognize such a presumptive limit but still emphasized timeliness when sentencing: While it is true that the right to be sentenced within a reasonable period of time is protected by

section 11 (

b) of the Charter , it is important to note that the protection afforded is fundamentally different than the right to be tried within a reasonable time, which contemplates not only the presumption of innocence, incarceration pending trial or strict release conditions, but the erosion of the ability to make full answer and defence with the passage of time. Once convicted, these factors are not the primary issues for consideration.

Instead, the right protects the broader interest of ensuring that the administration of justice is carried out in a reasonably expeditious fashion, such that the convicted person can move forward with their sentence and public confidence in the system is maintained. [emphasis added] [ 75 ] I do not assign blame to either party for the initial year delay, due (in part) to me having to clarify certain (aggravated-assault) details of my judgment, an issue relating to Mr.

Haworth’s medical records (possibly disclosing a separate injury-causing incident), limited common availability for the (then-needed) two-day sentencing, the onset of the Covid-19 pandemic, and less-than-timely responses by me (early in the Covid era) to counsel’s requests for dates. [ 76 ] But from the starting point of a sentence already delayed for thirteen months and (from the vantage point of summer 2020) a proposed further delay of six to eight months, I would have seen this as exceptionally long delay here, with a major risk of “attention diversion” within the meaning of Edwards .

Whether the offender adduced evidence of good character [ 77 ] The answer here is no, at least circa summer 2020, when the Crown was first proposing to change the focus and length of the sentencing hearing. I do not recall any such defence evidence then or even any signal that any would be forthcoming. [ 78 ] It is now apparent, from recent (post-hearing) communication from both Crown and defence, that Mr. Lindsay’s character will be a live issue in his 2015-incident sentencing. [ 79 ] The Crown now proposes these uses of the 2013 incident (if proved): • to show that Mr.

Lindsay “is of bad character and a risk to others; prone to reacting excessively on little to no provocation”; • “as an aggravating factor for the Haworth [2015] offence (mindful that the limitations of an uncharged offence are that an offender cannot be sentenced for what that sentence would have been worth, if convicted of it as charged); and • “to rebut the trial claim that Haworth ‘slipped’ out of [Mr. Lindsay’s] hands pursuant to a controlled takedown ....

As the Court has not yet ruled on this issue, the Court (... and should) [find an intentional takedown].” [ 80 ] Addressing the last point first, in fact (per my October 17, 2019 communication to counsel), I have already clarified my trial finding of an intentional throw-down. [ 81 ] As for “bad character and risk to others”, Mr. Lindsay has (effective September 2020) resigned from the Calgary Police Service. The Crown did not assert any particular “out of police service” risk posed by Mr.

Lindsay. [ 82 ] As for “aggravating factor”, the Crown emphasized that “the offender can claim the Haworth incident was a one-time exception in an otherwise unremarkable (or perhaps even good) career ... This is a relevant and material point, given that the defence has alluded to ‘remarkable rehabilitation’ on the part of Mr.

Lindsay, by which the Crown assumes character will be addressed in a positive light.” [ 83 ] I do not follow the Crown’s logic here: any such “rehabilitation” would necessarily refer to post-2015-incident-conviction developments i.e. be distinct from any “good character as of 2013 or 2015” arguments. [ 84 ] In any case, the defence has confirmed, also via recent correspondence, that: Since [the 2015-incident] conviction, [Mr.

Lindsay] has throughout intended, and continues to intend, to introduce substantial and strongly affirmative evidence of good character and ongoing post-conviction rehabilitation at his sentencing hearing. He intends to seek a [particular sentencing outcome] which by operation of law necessarily further engages consideration of his character.

Moreover, that intention was implicitly clear in the sentencing authorities by the accused in the initial post-conviction period and has been assumed by and/or known by the Crown. [ 85 ] As well, after the hearing and as noted above, the defence forwarded (with Crown consent) Calgary Police Service “service call” data reflecting the nature and frequency of then-Cst. Lindsay’s interactions with members of the public during his time as a police officer, presumably intended to show the benign (if not positive) nature of the vast majority of his interactions with members of the

public. [86] I will assume, for the purpose of the “from summer 2020” analysis, that these “character emphases” of both parties wouldhave been both disclosed and noted i.e. if we had been conducting an Edwards scan back then. [87] As for the legal backdrop here, the Criminal Code expressly refers to “character” in various contexts e.g. report by probationofficer on absolute or conditional discharge (s. 721); making of probation order (s. 731); intermittent sentences (s. 732); delaying parole(s. 743.6); parole ineligibility (ss 745.4, 745.5, 745.51, and 745.63), dangerous or long-term offender proceedings (s 757). [88] As I understand it now, the defence will or may be seeking an intermittent sentence here. [89] In R v Lees (SCC), [1979] 2 SCR 749, the Supreme Court of Canada approved the use of untried or potentialoffences to rebut the convicted person’s assertions of good character. (See also R v Woodcock, 2010 ONSC 3752 (Pardu J.) at para35.) [90] In R v Roopchand, 2016 MBCA 105, the Manitoba Court of Appeal approved the use of character evidence to rule out aconditional sentence “as a viable sentencing option. [The trial judge] did not use the existence of the untried charge to punish theaccused” (paras 10 and 11).

On this same purpose, see also R v Flis (cited above) at para 23 and R v Joseph (cited above at para 39. [91] In R v Khan and Chtirkova, 2009 BCPC 114, Gulbransen PCJ endorsed the use of uncharged-offence evidence as characterevidence “particularly relevant to the question of whether it would be contrary to the public interest to grant a discharge” (para 20). [92] In R v BM (cited earlier), the Ontario Court of Appeal stated: A sentencing judge should not rely on prior uncharged acts as "aggravating factors" as the sentencing process should not imposepunishment for untried and uncharged offences.

However, prior abusive conduct may nonetheless be relevant at the sentencing stageto show the character and background of the offender as it relates to the principles of sentencing: see R. v. Edwards (2001), (ON CA), 155 C.C.C. (3d) 473 (Ont. C.A.) at para. 63; R. v. Roberts (2006), 2006 ABCA 113 , 208 C.C.C. (3d)454 (Alta. C.A.) at para. 28. The background and character of the offender may be considered, for example, in order to assess theneed for individual deterrence, rehabilitation, or the protection of the public.

Such information is essential for craftinga sentence suitable for a particular offender. [para 11] [emphasis added] [93] In R v Suppiah, 2021 ONSC 3871, MacDonnell J. held: …Mr. Suppiah’s prior abuse of his wife is not an aggravating factor in relation to the offence, but it sheds light on his backgroundand his character and thus it is relevant to an assessment of the need for specific deterrence and rehabilitation: R. v. B.M., 2008 ONCA645, at paragraph 11; R. v. Edwards (2001), (ON CA), 155 C.C.C. (3d) 473, at paragraph 63 (Ont. C.A.).

The priorhistory in this case reveals a longstanding predilection to spousal abuse, which highlights the need to clearly and firmly impressupon Mr. Suppiah the necessity of changing his behaviour. [para 32] [emphasis added] [94] In R v Moore, 2014 ONSC 1788, MacDonnell J. stated: Accordingly [after considering Edwards and BM on acceptable uses of uncharged-offence evidence going to character] I accept that Mr.Moore’s conduct in shooting Mr. Khan can be taken into account in assessing his character. It is relevant to a consideration ofwhether the shot that he fired at Mr.

Darakjian in the Arax robbery was an aberration, as something inconsistent with hischaracter, and in that way it is relevant to his prospects for rehabilitation. Beyond that, however, it has no relevance to thesentencing calculus. [emphasis added] [95] In R v Wertman, 2009 BCSC 1177, Sigurdson J. wrote: The sentencing judge was alive to the fact that she could not sentence the accused for prior uncharged conduct.

There is noindication in the reasons for sentence that the judge took the prior noise complaints into account as an aggravating circumstanceor that she purported to impose additional punishment in her sentence for uncharged conduct. However, the fact of there being prior complaints was not challenged, only their relevance.

I think that the fact of prior complaints isadmissible for a limited purpose and that it is relevant to the nature of the particular offence for which the accused were charged.That is particularly so given the terms of the Noise By-law which prohibits the “sound of radio…or any other music or voiceamplification equipment … which can easily be heard by an individual or member of the public who is not on the same premises.”(emphasis added) [paras 19-20] [bold emphasis added] [96] In R v Golic, 2017 BCSC 1679, Humphries J. issued an important caveat about the use of uncharged-offence evidence: … I agree with the Crown that the [uncharged-offence] evidence is generally relevant and could go to the issue of character and lack ofremorse.

It may be relevant to the issue of rehabilitation. The Crown may also submit that it is useful if there is evidence of good character or expressions of remorse to come. I agree that the evidence is potentially relevant and should be admitted. It is important to emphasize that the evidence cannot be used toincrease sentence. Mr. Golic is not on trial for threatening. The use of the evidence must be closely circumscribed.

The weight to beattached to it, if any, and the importance it will ultimately assume is still to be seen. [paras 21, 22, and 24] [emphasis added] [97] In R v McKay, 2004 MBQB 146, Duval J. held: The hearsay information respecting incidents of violence within the correctional facility which the Crown seeks to tender throughthe report of Mr. Huzack cannot be used for the purpose of increasing the punishment which would be appropriate in respect of

the offences before the court, although relevant for the purpose of establishing the offender's character, behaviour, and attitudesince the commission of the offences before the court. [para 14] [98] In R v McDonald, 2015 ABPC 282, Norheim PCJ stated: I am satisfied that the evidence of Mr. McDonald’s subsequently incurred impaired driving charges, if proven by the Crown beyond areasonable doubt, would be a relevant consideration in the sentencing process.

It would tend to support the position that thedefendant has a drinking problem, and may weigh in favor of a sentence crafted to deal with this problem. … [para 21] [99] In R v Clements, 2013 MBPC 69, Krahn J. held: … as noted in Angelillo, I must be very careful not to punish the accused on this sentence for the untried offences or even for hisother convictions. In this case, the background of the offender is important in order to assess his moral culpability and the degreeof deliberate risk taking.

The untried offence and the subsequent conviction also provide relevant information to the court toindependently evaluate the risk assessment set out in the PSR, that is, that he is a low risk to re-offend.

The subsequent convictionimpacts the weight and credibility that can be placed on the accused’s assertions that he has stopped drinking and has learned his lesson.[para 27] [emphasis added] [100] In R v Deiaco, 2019 ONCA 12, the Ontario Court of Appeal emphasized the limited use of character illumination derived fromuncharged-offence evidence: Nor did the sentencing judge err in admitting or relying on the voluntary, videotaped interviews Mr. Deiaco gave about his work in thesex trade business. She considered and applied properly the factors identified by Rosenberg J.A. in R. v.

Edwards (2001), (ON CA), 54 O.R. (3d) 737 (C.A.), at para. 64, for admitting and using uncharged offences when sentencing offenders.The sentencing judge cautioned herself not to punish Mr. Deiaco for the uncharged conduct, properly confining her use of Mr.Deiaco’s voluntary admissions to proof of his background and character as information relevant to the objectives of sentencing.Specifically, she used Mr. Deiaco’s uncontested boastful admissions as demonstrating that he has no insight into his behaviour or itsimpact, a consideration that may reduce the impetus for imposing a rehabilitative sentence.

We would not interfere withthe sentencing judge’s discretionary decision to admit this evidence and to use it as she did. [para 5] [emphasis added]. [101] Finally, in R v MSG, 2021 BCPC 157, Boblin PCJ said: Another factor that affects M.’s sentence is the fact that the offences he committed were in the context of the ongoing physical,psychological and emotional abuse of his spouse over decades.

Although I must not sentence M. for uncharged conduct,and uncharged conduct is not an aggravating factor, the history of his relationship with T. is relevant to his character and hisprospects for rehabilitation. [para 170] [102] From these cases, I conclude that: 1. uncharged offences, if established, can illuminate the convicted person’s character; 2. character can be relevant by way of an express (“character”-referencing) statutory provision (e.g. suitability for absolute orconditional discharge, parole eligibility, and dangerous-offender designation); 3. character can also be relevant to general sentencing considerations e.g. rehabilitation prospects, risk of re-offending,protection of the public, and genuineness of remorse; 4. it can also be relevant in a rebuttal sense where the convicted person puts forward good-character evidence on sentencing;and 5. it is not relevant as an “aggravating factor” per se, in the sense that proof of the uncharged offence translates directly, ornecessarily, into a more severe sentence, in the way that proof of a prior conviction can (as explained thoroughly by the Manitoba Courtof Appeal in R v Wright, 2010 MBCA 80 at paras 7-18). [103] In the present case, as noted and assumed above, Mr.

Lindsay’s character will indeed be a factor at the eventual sentencehearing. [104] On the Edwards test, this factor would have weighed in favour of exploring the 2013 incident.

Cogency of the proposed evidence [105] In R v Roberts (cited above), the Court of Appeal gauged “cogency” as “relevance”, assessing it compactly: The voir dire evidence is relevant because it reveals an aspect of the appellant’s character that is not apparent from his excellent workhistory and clean record. [para 39] [106] As I recall, as of summer 2020, the Crown had not provided any particular synopsis of its proposed uncharged-offenceevidence.

I did understand that the complainant in the 2013 incident would be testifying and that (among other possible evidence) theCrown would be introducing police-radio and police-helicopter-video evidence of the incident. [107] In my view, the “cogency” factor is a kind of prima facie screen, aimed to sifting out weak or next-to-no evidence cases. [108] At an Edwards (threshold) application, and at least in a case where the uncharged-offence evidence does not already form partof the trial or sentence proceedings (as here), the Court is not in a position to perform a deep x-ray of the prospective evidence.

[109] I will proceed on the basis that, from the perspective of summer 2020, the only-briefly-described Crown evidence was“cogent”, in the sense of at least potentially related to sentencing issues and more-than-minimally probative i.e. this was not a case ofweak or next-to-no evidence. Defence objection (or other position) [110] In Roberts, the Alberta Court of Appeal noted another factor: … some courts [also consider] whether any objection was raised to the admission of the evidence during the sentencing hearing: R.v. Laberge (1995), 1995 ABCA 196 , 165 A.R. 375 (C.A.); Roud & Roud, supra; L. (J.C.), supra.

In this case, the sentencingjudge specifically invited defence counsel to address this issue, communicating his inclination to accept the evidence of the witnessesand to reject that of the appellant.

While defence counsel argued that the voir dire evidence should be given minimal weight, hemade no objection to its admission. [paragraph 40] [emphasis added] [111] In this case, the defence endorsed the Crown’s request to expand the initial sentencing hearing to “4-6 days” to dig into the 2013incident and the accompanying initial delay of approximately six to eight months. [112] And, while stated to be “grudging” or “with reluctance”, the defence also acquiesced to the additional two-month delay toassess the complainant’s fitness to continue with cross-examination and, overall, the expansion of the earlier-incident hearing toeffectively 14 days. [113] I do not place much weight on this factor.

As discussed already, with Crown and defence both keen to dig into the 2013incident, they both had an obligation to raise the Edwards test, to identify the relevant factors, and to explain why, per Edwards, weshould make the earlier-incident detour. Efforts required to explore uncharged-offence allegations [114] While it may be implicitly addressed under one or more of the other Edwards factors, I raise an additional factor to beconsidered at the threshold stage i.e. the “state of the evidence”, as in the source(

s) of the uncharged-offence evidence, whether suchevidence is already on the record (versus needing to be introduced at the sentencing hearing), whether it is straightforward (and thuslikely to require little time and effort to obtain or review) or incomplete, complex or otherwise likely to require extensive time and effortto obtain and weigh. [115] In R c Benjamin (cited above), for instance, the uncharged-offence evidence had been offered, and cross-examined on, in a pre-trial motion (para 31). [116] In R v Bajwa, 2020 ONSC 185 (Leibovich J.), the evidence came from an Agreed Statement of Facts. [117] In R v Joseph, (ONSC), Molloy J. emphasized the “straightforward and brief” nature of the uncharged-offence evidence and the absence of “complicated issues of fact or law.” Factors (

d) and (

e) relate to the danger that the examination of the other offence will unduly prolong this sentencing or divert itsfocus. That does not arise here. The evidence with respect to the weapon possession was straightforward and brief and did notresult in any meaningful delay of the sentencing. Further, because of the limited purpose of this evidence, there has not been anydiversion of the focus of the hearing with respect to the appropriate sentence for this crime and this offender. The sole issue to which thenew evidence is directed is whether the danger to the community makes a conditional sentence inappropriate.

My analysis of factors (c) (difficulty in defending the proposed evidence) and (f) (cogency of the proposed evidence) are related. Irecognize that Mr. Joseph may not have had a full opportunity to see all of the Crown disclosure on the weapons offence charge, nor tointerview all of the civilian witnesses who were present in the store at the time of his arrest. He also did not have the advantage of apreliminary hearing on the charge before being called to answer to it. However, the evidence against him is brief andstraightforward.

Officer McKenzie apprehended him within seconds of entering the store and the gun, fully loaded, was actuallyon his person. There are no complicated issues of fact or law and no inferences to be drawn from circumstantial evidence.

Theevidence is direct, cogent and compelling. [paras 41 and 43] [emphasis added] [118] Another way of viewing this factor is whether the uncharged-offence inquiry is likely to require a “trial within a trial” (or, moreaccurately, a “trial within a sentencing”). [119] On this aspect, the Supreme Court of Canada cautioned in R v Larche: Care must also be taken, in applying s. 725 [i.e. in the analogous context of uncharged offences occurring within the circumstances ofthe conviction offence] over the accused’s objection, to ensure that the sentencing hearing is not transformed into a “trial within atrial”.

This is relevant to a court’s exercise of discretion, once the threshold requirements of s. 725(1)(

c) have been met, especiallygiven the need for the accused to anticipate the extent of their jeopardy and the right to jury trial for certain offences. But the need toavoid a series of “spin-off” trials at the sentencing stage is, at best, of marginal value in determining whether an uncharged offenceforms part of the circumstances of the offence for which the accused must be sentenced. [para 49] [emphasis added] [120] In Edwards, the trial judge highlighted the risk of a “trial within a sentencing.” Per Rosenberg JA: The trial judge initially ruled only on the admissibility of the evidence concerning Ms. Powell.

He held that if evidence is adduced "atthe trial" of a pattern of violent or dangerous conduct, it may be taken into account on sentencing. However, the Crown cannot"manufacture" a criminal record at sentencing by leading evidence of untried and contested crimes. The trial judge held that

this would deprive the accused of all the procedural safeguards of a trial, "especially where the collateral crime is committed in aforeign country, an accused would be at a substantial disadvantage of finding or calling evidence to defend himself". The trial judgealso said that the danger exists of deflecting the court's attention from the sentencing issues and creating the undesirablesituation of embarking on a trial within a trial.

Finally, the trial judge asked, "Is not the accused entitled to a jury's verdict before itcan later be said of him, in aggravation of sentence, that he has earlier committed a serious indictable offence or a serious indictableoffence that formed part of a pattern extending back 18 years? Is this court to deprive an accused of a defence he may have in the foreigncountry?" [para 15] [emphasis added] [121] In R v Hunter, 2013 ONSC 5570, Sproat J. emphasized the same factor: … s. 725(1)(

c) gives me a discretion whether to consider evidence concerning additional victims. If, contrary to my conclusion, s.725(1)(

c) is available I would not exercise that discretion. In Larche, at para.49, Fish J. cautioned that care must be taken to ensurethat the sentencing hearing is not transformed into a “trial within a trial”. In my view that is what would result if the Crownapplication is granted. Given the time spent at trial hearing from approximately 20 complainants, hearing from 20 more is likelyto take a week or more.

That was certainly not contemplated in the original trial scheduling which is also a factor to consider.[para 16] [emphasis added] [122] In a different context (Charter application for sentence mitigation on account of excessive-force arrest), Topolniski J.recognized the risks posed by having to conduct “mini-trials” during sentencing (R v Jones, 2008 ABQB 559): There have been no findings by a court of competent jurisdiction that any of the six arrests that the five witnesses will testify to involvedexcessive force by Constable Drynan.

Consequently, six ‘mini-trials’ within this sentence hearing would be required to determine ifsuch was the case. One need not stretch their imagination too far to envision these ‘mini-trials’ entailing the accused callingmedical evidence to support the allegations of police brutality and the Crown calling significant evidence to address ConstableDrynan’s character and the circumstances of the six arrests. Whether I consider the intended evidence by applying the classic collateral fact rule or by weighing its probative value againstprejudicial effects, I reach the same conclusion.

The intended evidence is irrelevant to the real issue on this sentencing hearing. Itsprobative value is, at best, tenuous. Its admission would severely impair the flow of the trial because of the need formultiple ‘mini-trials’ to determine the merits of intended witnesses’ allegations. The possibility of opening the door toexaminations of the many arrests that Constable Drynan had been involved in at the date of the arrest and the significantrebuttal evidence that could be called would further hinder the process, unduly consuming time and eroding trial economy.

In theresult, the intended evidence is inadmissible. [paras 26(

b) and 28] [emphasis added] [123] In a similar-fact-evidence scenario (R v JK, 2016 ONSC 7163), Morgan J. noted the “serious distraction” risk of exploringuncharged offences: Where the similar fact evidence is strong it does not tend to distract the trier of fact by focusing on controversial circumstances for whichthe accused is not currently on trial: R v CPK, (ON CA), [2002] O.J. No. 4929, at para 33 (Ont CA).

Here, bycontrast, the still untried evidence of the Ottawa Complainant threatens to be a serious distraction to the present trial, potentiallyturning it into a trial within a trial in order to determine the veracity of the Ottawa facts before any inference can be drawn fromthem. [para 32] [emphasis added] [124] In this case, it was clear that the defence would be vigorously opposing the uncharged-offence allegations and that the evidencewould be both extensive and highly contested. [125] In early September 2020, both counsel referred to needing to review approximately 2,000 pages of information gathered by theASIRT in its 2017 inquiry into the 2013 incident (which did not lead to charges against Mr.

Lindsay) [126] In mid-December 2020, the parties reported that “some 3,500 pages of [disclosure] material” had been produced by ASIRT. [127] From the start, these uncharged-offence allegations raised the spectre of a complicated “trial within a sentencing.” Pre-existing delay [128] I add one more factor: whether the sentencing has already been delayed. [129] In this case, as noted, we had extensive pre-existing delay (thirteen months i.e. June 2019 to July 2020). With a summer 2020forecast of six to eight more months’ delay, we were already looking at a total delay of upwards of 1.75 years.

Conclusion on Edwards factors from perspective of summer 2020 [130] Favouring admission of the Crown’s uncharged-offence evidence were the general similarity of the conviction and unchargedoffences, the apparent ability of the defence to respond to the allegations, and the assumed centrality and cogency of the characterevidence. [131] On the other hand: • no nexus existed between the conviction and uncharged offences (being discrete and time-separated events); • exploring the uncharged offence appeared to push back the sentencing between six and eight months; • the sentencing had already been delayed for thirteen months;

• s. 720 requires sentencing to be completed “as soon as practicable” after conviction; • a material risk existed of time and attention being diverted from the core objective i.e. completing the 2015-incident sentencing; • the uncharged-offence inquiry had clear “trial within a sentencing” potential, and a complex one at that, from when it was first conceived; • neither party presented precedents, at any stage, for a sentencing hearing being turned into a full-fledged trial of uncharged offences, let alone one anticipated (from the standpoint of summer 2020) to require as much or even more time than the trial itself; and • the Crown had had over 6.5 years (December 2013 to August 2020) to charge Mr.

Lindsay in respect of the 2013 incident (and had not done so). [ 132 ] As the trial judge stated in Edwards , “the Crown cannot ‘manufacture’ a criminal record at sentencing by leading evidence of untried and contested crimes.” [ 133 ] It may often be the case, in sentencing, that allegations surface (or resurface) of other offences, which may indeed (if proved) illuminate the sentencing. [ 134 ] But the questions are whether the that illumination is worth the incremental delay, effort, and expense and, more fundamentally, whether a sentencing should be adjourned to allow what is effectively a separate trial to be started, conducted, and completed, so that its outcome can illuminate the sentencing. [ 135 ] In some cases, as here, a proposed subsidiary (aggravating-factor) proceeding risks overwhelming the primary (sentencing) one, to such a degree that it should have been exposed for what it actually was: a stand-alone matter, normally requiring its own proceeding, its own resources, its own witnesses, and its own timetable, leaving the sentencing proceeding to be pursued “as soon as practicable” and not obscured and delayed by the other proceeding. [ 136 ] Even if some sentencing illumination is otherwise lost. [ 137 ] From the perspective of summer 2020, with the sentencing for the 2015 incident already delayed over a year, I believe that the Edwards factors, on balance, signalled clearly that the proposed inquiry carried massive risks of unduly delaying, complicating, and in fact completely overwhelming the sentencing. [ 138 ] If the Crown had brought the application it should have a year ago, I would have declined to admit the proposed evidence and directed that we proceed to sentencing without any examination of the 2013 incident.

F.

Perspective from summer 2021 [ 139 ] The above analysis attempted to re-create how the analysis would have unfolded if the Crown had sought permission to open up the 2013 front when it should have (summer 2020) i.e. when first proposing to change the nature and length of the original sentencing hearing. [ 140 ] From that perspective, some of the Edwards factors were “risk management”, namely, is it likely there will be prolonged delay, and will time, energy, and resources be unfairly redirected from the main sentencing hearing? [ 141 ] From the perspective of the present, it is plain that those risks came to pass, and worse that expected: • the predicted six-day hearing turned into effectively fourteen days; and • we required an additional adjournment , in part to allow for psychological examination of Mr.

Addai-Nyamekye, of almost two months , from May 4 , 2021, when the first segment of the 2013-incident hearing ended, until June 28, 2021, when we resumed for a further (effective) eight days, albeit without Mr. Addai-Nyamekye participating. [ 142 ] At the conclusion of the second segment (on July 6, 2021), an additional year had passed (since the Crown first proposed this detour) and we had passed the second anniversary of the conviction judgment (June 21, 2019 - June 21, 2021). [ 143 ] I do not say that these outcomes were predictable.

But they confirm that the circa-2020 signals of likely long delay and major complexity were reading the winds accurately. G. Denial of retroactive approval for 2013-incident inquiry would be justifiable [ 144 ] At this stage, is it better to simply decide the contested issues i.e. whether the Crown has proved the commission of assault and assault-with-weapon offences in 2013? [ 145 ] A sentencing detour that should never have launched in the first place does not necessarily become more legitimate for having been completed.

[ 146 ] What happened here is a prime – perhaps the ultimate -- example of what the Edwards test was designed to avoid i.e. a side proceeding overwhelming the sentencing, resource expenditures far out of proportion to the “aggravating factor” context, unacceptably long delay (pushing us more than two years out from conviction), and an obvious loss of focus on the main (2015-incident) event. [ 147 ] The Crown sought “aggravating factor” illumination. The defence sought vindication on the 2013 incident (through a “not proved beyond reasonable doubt” decision) or, at worst (if a 2013 assault by Mr.

Lindsay were proved), minimization of his exposure for such an assault to incremental sentencing on the 2015 incident. (Per ss 725(2), Mr. Lindsay would not be chargeable for the 2013 incident on either outcome

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