R v Peets, 2024 ABCA 48

In the Court of Appeal of Alberta Citation: R v Peets, 2024 ABCA 48 Date: 20240213 Docket: 2203-0201A Registry: Edmonton Between: His Majesty the King Respondent - and – David Andrew Peets Appellant _______________________________________________________ The Court: The Honourable Justice Jack Watson The Honourable Justice Kevin Feehan The Honourable Justice Anne Kirker _______________________________________________________ Memorandum of Judgment Appeal from the Conviction by The Honourable Justice F.E. LeReverend Dated the 15th day of September, 2022

(Docket: 210836565P1) _______________________________________________________ Memorandum of Judgment _______________________________________________________ I. Introduction [ 1 ] The appellant appeals his convictions for multiple counts of drug and firearm offences which occurred on July 17, 2021, and arise from a search of his vehicle after he was intercepted by police. A central piece of evidence was a firearm (handgun and ammunition magazine) in a bag that was handled by the appellant in the presence of the lead constable during a driver’s window side conversation.

Other than a ground of appeal as to unreasonable verdict, the grounds of appeal concern trial procedural issues. [ 2 ] The trial structure was atypical. The proceeding opened with a ‘blended’ trial and voir dire concerning admissibility of aspects of the Crown’s case. The appellant did not testify during this first voir dire / trial but there were some agreed facts tendered for the defence after the end of the Crown’s case.

During the voir dire / trial there were also evidentiary and procedural rulings, two of which involved detailed reasons while others were summarily addressed. [ 3 ] Following the guilty verdict after the first voir dire / trial, there was then a second voir dire at the instance of the defence seeking a judicial stay of proceedings for alleged default of Crown disclosure, investigative negligence, and failure of the police to seize and retain evidence of a CCTV video which allegedly breached the appellant’s s 7 Charter rights. The appellant testified during that voir dire .

After the ruling on that second voir dire , there was a third defence voir dire seeking Charter remedies for alleged physical abuse of the appellant during his incarceration pending trial. That third voir dire overlapped with the sentencing submissions in the case. [ 4 ] The appellant’s first two grounds of appeal are related.

They allege: unacceptable negligence by the police in failing to seize and preserve a 7-11 convenience store CCTV surveillance video; and misuse by the trial judge of the principles in Browne v Dunn (1893), 1893 CanLII 65 (FOREP) , 6 R. 67 (UKHL) related to her assessment of the credibility of the appellant’s testimony during the second voir dire as to allegedly having insistently told the constables at the scene of his arrest to recover that 7-11 CCTV video. [ 5 ] The third ground of appeal asserts that conduct and statements by the trial judge during the trial gave rise to a reasonable apprehension of bias.

This complaint overlaps in part with the fourth and fifth grounds. [ 6 ] The fourth and fifth grounds relate to the offering in evidence by the Crown of a firearm certificate pursuant to s 117.13 of the Criminal Code , notably for counts 7 to 13 in the Information. The precondition to admission of the certificate is “reasonable notice of [the] intention [to produce the certificate] together with a copy of the certificate”: s 117.13(3) of the Code . Crown counsel produced an affidavit indicating that her office had provided reasonable notice by emailing the notice documents to the office of defence counsel.

Defence counsel initially denied receiving the documents but later “explained” (after checking) that his office had in fact received the documents although he suggested he did not review the email before trial. [ 7 ] Defence counsel claimed an entitlement to formal proof of service including a cross-examinable witness (including Crown counsel) before the firearm certificate was admissible. His request to cross-examine a Crown witness on that point was denied by the trial judge: s 4.6(

a) of the Code . Defence counsel also protested that the trial judge should not have regard to his own acknowledgment of having received the notice documents by email to find that service of notice and copy upon the appellant was reasonable, legally sufficient, and effective. [ 8 ] When the trial judge ruled there had been reasonable notice, defence counsel applied to be removed as counsel based on the assertion that he could not in effect be both a witness and counsel. That application was summarily dismissed. The fourth ground of appeal relates to that ruling.

Defence counsel then applied for a mistrial and that application was also summarily dismissed. The fifth ground of appeal relates to that ruling. [ 9 ] The sixth ground of appeal is that the trial judge reached an unreasonable verdict in finding that the appellant had possession of the drugs and the handgun. During the voir dire / trial, defence agreed that if possession of the drugs was proven, then possession was for the purpose of trafficking.

The defence does not resile from that position on appeal. [ 10 ] During the voir dire / trial the appellant did not testify but the defence was allowed to tender evidence by agreement as to DNA testing of the firearm. The guilty verdicts were rendered after the voir dire / trial and the appellant was found in possession of the gun and drugs recovered in his vehicle. However, during the second voir dire where the appellant then sought a judicial stay for breach of s 7 of the Charter , he subsequently testified and denied knowledge of the gun in the vehicle.

[11] Considering all this process complexity, the evidence in the first voir dire / trial (mostly Crown’s case) on the counts issummarized in

Part II and then elaborated somewhat in addressing the sixth ground of appeal in

Part V. For the other grounds, focusedon process complaints, it is unfortunately necessary to situate the procedural events in the trial with some detail as provided in

Part III. II. Outline of Principal Case [12] In brief, the situation involved a vehicle stop by Csts Link and Taylor after a female person was seen to leave the appellant’sChrysler 300 in a 7-11 convenience store parking lot promptly after which the appellant drove away. The license plate did not match thevehicle, hence the reason to stop it. The appellant’s vehicle was stopped a block away. [13] At the stop, Cst Link approached from the driver’s side and told the appellant the reason for the stop. The appellant explainedhe had just purchased the vehicle and had not changed the plate yet.

He produced his license, proof of insurance, and bill of sale.Meanwhile Cst Taylor, who was on the passenger side, shone her flashlight into the back seat to see if anyone else was inside. There wasno one, but she saw items on the seat. The appellant’s documents were then checked by police back in their cruiser and found to be valid. [14] While checking the documents, Cst Link had the impression of the appellant moving inside his vehicle. He formed thisimpression while noticing the appellant through the driver’s side mirror. The constables went back to return the documents to theappellant.

When they were back at the vehicle, Cst Taylor told Cst Link from the passenger side that the appellant appeared to havemoved items from the back seat, notably a bag, onto the floor of the vehicle. Cst Link, on the driver’s side, felt that was “a little weird”and asked the appellant why he moved the bag. In cross-examination, Cst Link agreed that, at this point, from his point of view, theappellant was “not free to leave”. [15] The appellant reached over the console into the back. Cst Link told the appellant to lower the rear driver’s side window so hecould see what the appellant was doing. The appellant did so.

The appellant held up the bag and said it was empty. The conversation wasstill normal and cooperative. But Cst Link saw the grip of a handgun in a pouch of the bag. He told the appellant to drop the bag and stepout with his hands up. The appellant was then arrested for possession of a weapon and handcuffed. [16] Cst Link did a frisk search of the appellant incidental to arrest but found nothing of concern. The appellant was given Charteradvisements. The appellant’s demeanour changed to hostility once he was placed in the back of the police vehicle. At some point CstLink called for backup.

Search of the appellant’s vehicle recovered the handgun with a separated ammunition magazine in the sameobserved brown bag. There was also a blue plastic ‘brass knuckles’ on the back seat and a grey bag with money and drugs in it near adoor. The drugs were later described as diazepam, methamphetamine, fentanyl, cocaine, and others. Cst Link also took photos of thevehicle as he searched it, including of the contents, and later took photos of the various seized exhibits laid out on a police station table. III.

Structure of the Trial [17] The grounds of appeal arising from process complaints cannot be understood out of the larger context of the flow of that trial.The trial did not unfold in a completely continuous manner but rather in chapters over a period of weeks (May 4-6, May 13, June 2, June6, September 15, September 27, October 4, and October 6, 2022).

What might be called the real trial, namely the blended voir dire / trial,essentially covering the Crown’s case and without testimony of the appellant but with DNA admissions, ran relatively continuouslyalthough there were two subsidiary rulings during that first voir dire / trial.

The appellant did testify in the two later voir dires dealingwith defence motions post verdict. [18] The trial judge did her best to keep the trial flowing steadily: compare R v Kristensen, 2010 ABCA 37, 251 CCC (3d) 372. [19] The record shows that the trial judge was generous as to informality by counsel and was very patient in the face ofimpertinence by defence counsel and in the face of allegations being made by defence counsel but then ‘explained’ away due toinaccuracy. There were multiple discussions at various times involving counsel and the trial judge speaking back and forth in aconversational manner.

Defence counsel was not hesitant to interrupt Crown counsel and the judge. During the two shorter voir dires,defence counsel would also interrupt the appellant’s answers and Crown cross-examination.

Some assertions and references by counselduring the trial are not clear when seen on paper, but, fortunately, such lack of clarity was cleared up by inquiry of the trial judge. [20] Also, the record shows that the trial judge was prepared to accept assertions of procedural facts made by both Crown counseland defence counsel as being of evidential value in the proceedings relating to those procedural questions as they arose. [21] To repeat, the trial commenced as a ‘blended’ trial and Charter voir dire whereunder defence counsel agreed the evidencewould apply to the trial if the seized items were ruled admissible at the end of the voir dire.

Counsel could be taken at his word as tohaving had the authority to agree to that procedure: compare R v T(SG), 2010 SCC 20 at para 36, [2010] 1 SCR 688. Defence counselfiled his “Appointment of Counsel by Designation” pursuant to s 650.01(1) of the Code on June 20, 2022.

This feature of the case isdiscussed further below on the fourth and fifth grounds. [22] Although consent to application of voir dire evidence to the trial is required (R v Gauthier (SCC), [1977] 1SCR 441), the ability of the parties to agree in advance to apply voir dire evidence to the trial is permissible procedure: R v Wruck, 2020ABCA 270 at paras 90-95, 390 CCC (3d) 349; R v Gray (1987), 1987 ABCA 67 , 79 AR 184, leave denied [1987] SCCA No114 (QL) (SCC No. 20342); R v McGuire, 2005 ABCA 211 at para 4, [2005] AJ No 718 (QL); R v Drury, 2000 MBCA 100 at paras72-78, [2001] 1 WWR 442, leave denied [2000] SCCA No 619 (SCC No 28306); R v M(K), 2015 ONCA 582 at para 8, [2015] OJ No4524 (QL); R v Cochrane, 2018 ABCA 80 at para 23, 359 CCC (3d) 210.

The blended proceeding in this case essentially covered theCrown’s case over the first voir dire. [23] As the appellant did not testify within this blended voir dire/ trial, there was no issue as to whether his evidence would carryover from that voir dire into the trial without specific consent on application on that evidence: R v Darrach, 2000 SCC 46 at para 66,

[2000] 2 SCR 443; R v Dela Cruz , 2007 MBCA 55 at paras 27-28 , 220 CCC (3d) 272; R v Ashby , 2013 BCCA 334 at paras 78-80 , 5 CR (7th) 173; Cochrane at paras 17-26 . [ 24 ] During this initial voir dire , Crown counsel referred Cst Link to a series of photos, drug analysis certificates, and other items recorded on the police file. Specifically, Cst Link was referred to items that he seized, photographed, and marked for transmission to “Health Canada” and the certificates which were returned. Notes by Cst Link with the submission sheets included his pre-analysis impressions of the seized drugs.

He was incorrect in his forecast of what drug was found in some instances. [ 25 ] It is necessary to mention this technical evidence because it was the underpinning of the first sub-ruling within the initial blended voir dire /trial as to admissibility of the drug certificates.

Although the appellant no longer presses an objection on inadmissibility of the drug certificates on the basis raised at trial, it is interesting context to the fourth and fifth grounds of appeal relating to the appellant’s complaint that the appellant was not given reasonable notice of the Crown’s intention to produce the firearm certificate into evidence. [ 26 ] During this phase of the first voir dire / trial, counsel for the appellant did not object to drug certificate evidence based on lack of reasonable notice.

When expressing his objection to admissibility of the drug certificates, defence counsel informed the trial judge that he had received those certificates before the trial. Defence counsel explained that his argument as to inadmissibility under ss 51 of the Controlled Drugs and Substances Act , SC 1996, c 19 (which might be compared to s 117.13 of the Code ), was on the basis that the content of the certificates was not adequately matched up to the organization and packaging of the exhibits from the vehicle by Cst Link.

The trial judge offered an encapsulation of the argument of defence counsel: THE COURT: -- I get your argument. You're saying there isn't sufficient proof connecting the certificate with the sample sent. MR. LEBESSIS: That's my argument, Your Honour. That is not an argument about notice under the CDSA . There is no clear indication as to how service of notice by the Crown under the CDSA was done for those certificates.

The passion reflected in the discussion of alleged lack of reasonable notice for the firearm certificate is nonetheless puzzling: see below. [ 27 ] Context for the first and second grounds of appeal also arose during the cross-examination of Cst Link by defence counsel during the voir dire / trial. Defence counsel asked Cst Link why he did not obtain CCTV surveillance video from the 7-11 convenience store, which he said he had done in other cases. Cst Link testified that he did not feel the video would have any evidential value relevant to his investigation.

He also stated he did not ask the backup officers to collect the 7-11 video. [ 28 ] During the run up to trial, however, the Crown asked Cst Link to try to obtain the video.

Link said he sought to do so on February 10, 2022, but it was no longer available. [ 29 ] The defence argued that the absence of this evidence (and other suggested failures by Cst Link as regards his note taking) affected the strength of the Crown’s case, which argument was part of the principal (verdict related) decision of the trial judge on the first voir dire / trial given on September 15, 2022. [ 30 ] Defence counsel cross-examined Cst Link during this first voir dire / trial about his handling of the handgun. DNA of a male person and two other unknowns were found on the gun.

Defence counsel also suggested that Cst Link may have put his own DNA on the handgun which, as with issues concerning Cst Link’s note taking, was raised as an evidential point as to continuity of the exhibits in the first voir dire / trial. [ 31 ] Cst Link was also asked in the first voir dire / trial about photos taken of items seized and his counting the money from the grey bag later verified by a second officer. He also gave evidence about his photos of the back seat area of the vehicle and his seized property report and other reports.

He agreed he did not formally seize some items, including marijuana, that he put with the appellant’s property. Defence counsel also asked Cst Link about the processing of exhibits for analysis by “Health Canada” leading to the drug analysis certificates. [ 32 ] It was in the second voir dire , post-verdict, that the failure to seize and retain the CCTV was asserted to have occasioned loss of important evidence favourable to the defence by unacceptable negligence and to justify a stay of proceedings.

In other words, it was after the verdict decision of the trial judge on September 15, 2022. [ 33 ] The appellant during the second, post verdict, voir dire asserted that he “started yelling at [Cst Link] from the police cruiser telling him, I said, Listen that's not mine. I said, You need to go back to that 7-Eleven and question that person that I dropped off there. Nothing came about it”. [ 34 ] Defence submissions on the first voir dire /trial also claimed there should be a doubt as to whether the drug certificates were adequately connected to Cst Link’s seizures and investigations as to the appellant.

This led to a decision by the trial judge as to the drug certificates. Defence counsel also expressed his second objection to the admission of the Firearm Certificate which the Crown also proposed to have admitted as part of its case.

As indicated, defence counsel denied he was served with notice as to that Certificate, but Crown counsel asserted that a letter containing language of notice was sent to defence counsel electronically. [ 35 ] On May 5, 2022, the trial judge’s first sub-ruling in the first voir dire /trial was that the circumstantial evidence related to the drug certificate evidence was sufficient to persuade her that the analyses related to the drugs seized from the vehicle by Cst Link, and consequently the drug certificates were ruled admissible: compare R v Chiang , 2012 ONCA 59 at para 7 , [2012] OJ No 3 (QL).

None of the grounds of appeal, including the unreasonable verdict ground, appear to assail this specific conclusion of fact. [ 36 ] Submissions then re-commenced after that ruling in the first voir dire /trial on the defence’s second objection to the Firearm Certificate. At that stage, defence counsel appears to have checked his records about what he received from the Crown. Defence counsel offered what he said was an “explanation” of what he had said earlier. He described the electronic fax machine that he used in his

practice. He asserted that he had never agreed to accept service of the Firearm Certificate by email and the Crown was required to personally serve the appellant. [ 37 ] Crown counsel said defence counsel admitted he had received the notice and Firearm Certificate. Crown counsel then asked for time to consider the case of R v Phung , 2011 ABQB 427 , 521 AR 304, cited by defence counsel.

Defence counsel argued that Phung mandated that the Crown prove a better form of service than by providing notice and certificate copy to defence counsel by fax, which occurred here. [ 38 ] At that point, the trial judge suggested that submissions on that second objection to the Firearm Certificate could be deferred to later and that Crown counsel could continue with a different topic. [ 39 ] Crown counsel then commenced to qualify an expert as to “manner of use, manner of packaging, manner of distribution, prices, paraphernalia, practices and habits of users, and practices and habits of traffickers”.

The proposed witness was a Detective Korobanik. Defence counsel again objected to this evidence on the basis that he did not have an expert report. Crown counsel then remonstrated that she had sent an email dated March 19th, 2022 to defence counsel “stating the areas of expertise, proposing the expert witness, and attaching his CV and his expert report”. [ 40 ] Defence counsel again checked his records and again admitted that it was correct to say he had received those documents by email. Defence counsel apologized to the trial judge for what he had earlier asserted.

Soon thereafter, defence counsel said he was “going to streamline this process”, that the expert was qualified and “[h]is findings in the report [are] conceded”. Defence counsel added that if the items found in the grey bag were found to be possessed, then those items were possessed for the purpose of trafficking and we “don't need to hear from this witness any further regarding that. It's conceded by the defence”. The trial judge confirmed with counsel those admissions and released the expert. [ 41 ] The argument about the Firearm Certificate then resumed on May 6, 2022.

At this stage, defence counsel protested that he could not “be compelled to be both a witness and an advocate on behalf of my client” and that he found himself in effect testifying on the procedural point of notice. He asserted there should be witnesses or a “stat dec” instead. The trial judge disagreed. Presumably referring to Crown counsel, the trial judge said “No, she can tell me about it. It's always done this way with service”. [ 42 ] Crown counsel also produced an affidavit given to defence counsel as to what documents had been given to him by letter from the Crown.

What followed was a protest by defence counsel about impropriety of the Crown alleging reasonable notice was given to him including with reference to what he told the trial judge about receiving the materials by email: see discussion of the fourth and fifth grounds of appeal in

Part V. [ 43 ] At that point, Crown counsel resumed her submissions about notice, and contended that the decision in Phung , which concerned the Controlled Drugs and Substances Act , was distinguishable from this case which concerned s 117.13 of the Criminal Code . In Phung , at para 29 , deficiencies in the affidavit of service were noted and the service by fax was stated to be “as a result of time constraints totally brought into play by the conduct of the police and Crown counsel.

The only evidence that would suggest defence counsel knew of the certificates or had received them is hearsay and inadmissible in this trial”. Crown counsel also provided a decision called R v Vukaj , 2020 ABPC 175 , [2020] AJ No 1035 (QL) dealing with s 117.13 of the Code which held that service on counsel via publicly available communication means was adequate.

Defence counsel replied with another protest against, so his argument ran, him being “a witness and advocate”. [ 44 ] At that point the trial judge gave oral reasons indicating that defence counsel had agreed he had received the message from the Crown office but that he “possibly didn't open it”. The trial judge confirmed that she had refused to allow cross-examination on the affidavit offered by Crown counsel or cross-examination of Crown counsel. In her view, she could rely on what counsel said and that what was said was sufficient service of notice.

In this respect, the trial judge also referred to R v Redford , 2014 ABCA 336 , 319 CCC (3d) 170. [ 45 ] Defence counsel objected to the content of the two documents which evidently related to the lack of lawful registration and possession of the firearm. Defence counsel then presented an application for his removal as counsel and for a mistrial.

Both of those applications were summarily dismissed. [ 46 ] Crown counsel then continued her case by tendering two documents which were court records of the trial court: a judicial interim release document related to the appellant; and a firearm prohibition order relating to the appellant. These items were related to counts on the Information charging the appellant. No issue of notice arose there. [ 47 ] Submissions resumed concerning a Possession of Firearms Report which was related to the handling of the firearm by Cst Link.

At this point, defence counsel explained that he did not know if Crown counsel intended to lead DNA evidence. Crown counsel said she would close her case on the blended first voir dire / trial and “understood that defence would be putting in DNA evidence with the Crown's agreement”. As noted above, defence counsel advised that on his client’s instructions he was not calling evidence on the first voir dire / trial. [ 48 ] On May 13, 2022, the trial judge gave her reasons for decision on the first voir dire / trial.

She set out her findings of fact about the interaction between the police, and particularly Cst Link, and the appellant. She found no breaches of the Charter in that interaction as to both the questions asked of the appellant and the physical events. She ruled the evidence was admissible and, with agreement by counsel, “the evidence of the voir dire will form the evidence in the trial proper”. [ 49 ] At that point, defence counsel spoke to scheduling of the continuation of the trial.

In explaining his position, defence counsel indicated he had received instructions that the appellant would testify in the trial proper and needed some time to put together the defence case in that regard as well as for submissions. [ 50 ] During these remarks, defence counsel agreed with the trial judge that the argument would be on proof of possession including the issue of DNA on the gun in relation to the overall circumstantial case. The trial was booked to resume on June 2, 2022.

[ 51 ] On June 2, 2022, as counsel commenced speaking on the trial resumption, the appellant spoke himself to ask about a black bag which was not entered as an exhibit but was in a photo of some sort. Defence counsel did not make a motion based on this. Defence counsel then advised that the appellant had instructed he did not wish to testify in the trial proper and the appellant confirmed this choice.

However, counsel got a recess to determine how to enter the DNA evidence. [ 52 ] After the recess, defence counsel advised both counsel were “in agreement that the following three documents are something that you should view as part of the defence case which are going by way of consent”. He then explained further: MR. LEBESSIS: -- who analysed the -- the DNA analysis which was found. There was DNA that was found on the -- on the pistol, but as Ms. Neufeld indicated, there was actually three different types of DNA that were found.

The essence of the DNA analysis is, essentially, that of the three individuals, only one can be determined to be male, but the DNA results are such that there’s no match to Mr. Peets. And I think that’s the important point that I’m trying to make, that this evidence could be interpretated, in my view, as exculpatory.

Of the other two samples that were found, no other match could be determined, and the sex of those individuals cannot be determined. [ 53 ] Submissions on the first voir dire / trial proper then followed, first by Crown counsel and then by defence counsel which focused on the circumstantial evidence related to possession. Amongst the points of defence counsel were these: MR. LEBESSIS: Yeah. And -- and that there was three individual profiles. Three separate individual profiles which means -- THE COURT: It was a well-handled gun. MR. LEBESSIS: It was well handled. Three other individuals.

Two of the other individuals could have been female. Could have been. We don’t know. And if we don’t know, Mr. Peets is entitled to an acquittal. That’s the point that I’m trying to make is that, look – THE COURT: Okay. MR. LEBESSIS: -- there’s too much uncertainty here. THE COURT: Okay. [ 54 ] Defence counsel also argued that Cst Link had not properly recorded which items were seized and where they were in the vehicle when he first spotted them. The trial judge then asked if counsel had anything else to add. Defence counsel replied: MR. LEBESSIS: I don’t know.

I’ve already touched on this issue, but the other -- the issue is, we don’t have that video of the 7-Eleven video. We have a gap of disclosure which is missing which is relevant to my application for a stay of proceedings here. I – THE COURT: Were you still bringing that? MR. LEBESSIS: Yes. THE COURT: Okay. And you’re basing that on the fact that we don’t have this evidence? MR. LEBESSIS: Yes. THE COURT: All right. MR. LEBESSIS: Because here’s -- here’s the facts here, is that I requested it. I was diligent in requesting that particular item. The item -- THE COURT: All right.

So, now you’re going to testify as to you being diligent in requesting it? MR. LEBESSIS: If you want me to, Your Honour, but -- THE COURT: Well, no. I accept -- MR. LEBESSIS: Yeah. THE COURT: As an officer of the court, I’m going to accept it. So, I requested video. MR. LEBESSIS: Yeah. I requested this particular video. THE COURT: Diligently. MR. LEBESSIS: I further submitted a request on January, through email correspondence, to the assigned Crown prosecutor Ms. Charlton, specifically requesting any update of this particular video.

That was done on January -- let me get the actual email so I’m not – THE COURT: That’s okay. January. MR. LEBESSIS: In January sometime. And I believe if I’m not mistaken, Your Honour, the specific date was January the 20th. THE COURT: Okay. MR. LEBESSIS: And the -- the video was not actually investigated until February 24th, almost a -- and by that time, the 7-Eleven had

closed and it was reported that that video was missing. It was gone. And so, the fact of the matter is this was an issue that was brought up at the pre-trial conference that I made. [ 55 ] In other words, the trial judge did not apply uneven scrutiny to the submissions of defence counsel on procedural matters. [ 56 ] Defence counsel then argued the Crown’s evidence fell short of conviction.

During these submissions defence counsel acknowledged, related to his filed motion for a s 7 Charte r stay which became the second voir dire , that “I’m getting into the submissions a little bit premature because I’m supposed to be talking about trial evidence at this time”. [ 57 ] The trial judge asked him how he wanted to proceed in that regard and defence counsel said: MR. LEBESSIS: Yeah. So, I’d like to proceed on -- on a ruling on the trial proper, and then bring an application afterwards because Mr. Peets would like to testify. Mr. Peets has a right to testify. He just doesn’t want to testify at trial.

THE COURT: So, you want me to rule on it, and then you’re going to bring your stay application? MR. LEBESSIS: Yes. [ 58 ] The trial judge expressed doubt about this proposed procedure. Counsel explained why that separation of topics was, in his view, valid. In the end, the trial judge was persuaded to give her decision on the first blended voir dire / trial and the verdict.

She then reserved judgment and the matter was ultimately set for September 15, 2022, for decision. [ 59 ] Before the adjournment, defence counsel added to his advice about intending to proceed with a voir dire for a judicial stay for breach of s 7 of the Charter by mentioning a further voir dire to address whether or not the appellant had been subjected to “excessive force” as infringement of sections 7 and 12 of the Charter. To that he added the absence of the 7-11 convenience store video.

Defence counsel seemed to say that both were “relevant to sentencing ... if there’s a conviction, yes”. [ 60 ] The trial resumed on September 15, 2022, with the trial judge’s reasons on the first voir dire / trial merits. Discussion of those reasons will occur later in the discussion of the sixth ground of appeal. [ 61 ] Defence counsel then opened the second, post verdict, voir dire seeking a judicial stay based on breach of s 7 of the Charter . In addition to seeking a stay of proceedings, defence counsel’s written application filed May 25, 2022, specified “[i]n the alternative, a reduction in sentence”.

After correcting a minor error in his written argument, defence counsel provided an opening address largely setting out his dealings with the Crown as to seeking the CCTV video. Once again, his submissions as to process were taken at face value. Defence counsel then called the appellant to testify. [ 62 ] The appellant’s version included his assertion that, when returning his documents, Cst Link asked to look into the appellant's vehicle. The appellant said that he asked Cst Link what this was about and was instructed to get out of the vehicle when he was promptly handcuffed and put in the back of the police car.

He said Cst Link went back to the appellant’s vehicle and started searching it. The appellant asserted: “Now, at this time I didn't know nothing about this firearm, okay? It was in the back seat, behind the seat supposedly”. There were four officers at the scene at some point. The appellant testified: I started yelling at him from the police cruiser telling him, I said, Listen that's not mine. I said, You need to go back to that 7-Eleven and question that person that I dropped off there. Nothing came about it.

They -- I sat in the back of that cruiser while they searched my vehicle, went through my trunk, you know, basically not listen to me – anything I'm saying to them. I told them straight out that it wasn't mine. I don’t know what else to say. That pretty much was the basic of it right? I didn't say nothing, I asked to speak to my lawyer. They didn't give me a lawyer call when I got down to the police station. I sat down there, they took me in there, they searched me in the holding call. They wouldn't let me talk to a lawyer.

I didn't even get to see a lawyer until -- just before I talked to duty counsel before my JP hearing. [ 63 ] The appellant went on to testify that he attempted to get the CCTV video via a constable at the Professional Standards Branch and to make a FOIP request. Defence counsel admitted this evidence was “confusing”. Crown counsel cross-examined the appellant on his criminal record, which defence counsel interrupted several times with suggestions or clarifications about the evidence.

The appellant did not produce a specific document saying he requested the CCTV video from the police. [ 64 ] During this part of his evidence, the appellant also said that he: ... sat in the 7-Eleven parking lot for 10 minutes, before they followed me out of the parking lot. So there's some timelines, so wrongs with the cops or what the police said in their statements, how they got my licence plate all that. The appellant continued to talk about his complaints to the Professional Standards Branch, and defence counsel again intervened to “verify” at least some of what the appellant was saying.

Crown counsel discontinued cross-examination of the appellant. [ 65 ] After a short

preamble, defence counsel then commenced a re-examination of the appellant which went beyond the Crown’s cross-examination. Defence counsel also produced what he said was a copy of a letter dated September 2, 2021, from the Ombudsman’s office which defence counsel later said “corroborates partially what he's saying”.

Crown counsel had no objection to that letter being entered on the second voir dire but said the letter talked about the appellant’s complaints about his treatment at the Edmonton Remand Centre “and not about anything else”. [ 66 ] During his further re-examination of the appellant, defence counsel interceded several times to clarify or propose details. Crown counsel did not elect to call evidence on the second voir dire . [ 67 ] In submissions on the second voir dire , defence counsel asserted that it was clear both Cst Link and Cst Taylor did not recall

what the appellant said at the roadside. Defence counsel appears to have had the transcript of Cst Link’s evidence in hand at this stage. After defence counsel made further submissions, the trial judge asked him: THE COURT: Now, when Peets complain[ed] to the Ombudsman, did he complain that he didn't get the video or did he complain that the police did not mention they did not see the female get back in the vehicle? MR. LEBESSIS: I don't know the nature of the exact complaint, Your Honour, because it is only outlined in the letter that he received back from the Ombudsman.

So what was initially stated to the Ombudsman is perhaps a filtration, that's part of the exhibit that I just tendered -- that's the letter that he received back from the Ombudsman. But [why] that's important is because of the dates and times that he, in fact, did that, right? That corroborates his version of the events, that No, I was -- THE COURT: Well, one would think you would get a copy of his report to the Ombudsman. MR. LEBESSIS: Oh yeah, I'm sure I could, but I never thought this issue would be my onus, here's the thing, who bears the ultimate onus of providing full and complete disclosure?

The Crown Prosecutor does. The Crown Prosecutor has a duty to provide full and complete disclosure to the accused person in order for the accused person to make full answer and defence to the particular charges. The important distinction is that it's not in dispute Constable Link knew about the video. He knew it on the date of the arrest -- THE COURT: Okay, you do not need to repeat it, I have got that. [ 68 ] The Crown submitted that the police were not required to acquire third party materials as an element of the Crown disclosure duty. She filed a written brief on this point.

Defence counsel in reply then referred to R v Nkemka 2013 ONSC 2091 , [2013] OJ No 3317 (QL) which he suggested was supportive. The trial judge asked defence counsel the following: THE COURT: One of the things that I would have to do is to find your client credible, that he did say to the police, Oh not my gun. I have some issue with that because when the Officers were cross-examined, a lot of the things this witness has said, were not put to the Officers. MR.

LEBESSIS: That particular issue was not put to them during -- in cross-examination – THE COURT: Or the amount of time they waited for the – he said he waited 10 minutes; the Officer said it was very brief. They did not see someone come out -- MR. LEBESSIS: There's conflicting versions at trial -- THE COURT: -- it was a very short period of time, there is an awful lot of differences that this witness has suggested which were not put to the police officers. MR. LEBESSIS: That's true, but the issue is this -- THE COURT: So then what do I do? MR. LEBESSIS: -- the issue is this.

You have to -- the police are saying, we can't remember, that's not evidence of anything that we can consider. THE COURT: No, no the rest of the evidence. MR. LEBESSIS: So if my client is saying I did this and I was adamant on doing -- there's nothing that curtails that evidence, there's nothing that dispute that in a sense that saying, No he didn't, they're saying, well I can't remember. THE COURT: Well, there is some evidence to dispute his suggestion he did not know there was a gun, he had his hand on the bag. MR.

LEBESSIS: But the ultimate issue is just going back to what Constable Link said in his testimony, he was aware of the videos existence on the date of his arrest. That's indisputable. THE COURT: All right. Thank you. I have got that. I should have an answer by 1:00. [ 69 ] The Court recessed at that point. On resumption, the trial judge gave reasons which noted the failure to put questions to Cst Link, but, ultimately, she did not accept the appellant’s version of events: “I do not accept he told the police it was not his gun or that they should get the video”.

She went on to address the proposed legal obligation on the police to investigate the CCTV video. She concluded: Assuming there was a video from 7-Eleven, was there any duty on the police to get it? Constable Link said he did not think it would be relevant to this traffic stop. He made that decision, which was reasonable and in good faith. Even though this offender testified, there is still nothing to suggest it would have been relevant. As stated by the Crown, the Crown's duty to disclose only applies to the fruits of the investigation and does not apply to evidence in the possession of third parties.

This offender must show actual prejudice on the balance of probabilities to make full answer and defence because the video is not produced and there is not one [whit of] evidence to suggest he could not make full answer and defence. His rights were not infringed. [ 70 ] Defence counsel then moved to open a third voir dire alleging the appellant’s mistreatment in custody. He offered, with Crown’s consent, a bundle of documents said to cover the appellant’s medical documents and to tee up a video of “portions of video evidence taken from the Detention Management unit” on the evening of July 18, 2021.

[ 71 ] The appellant testified that what was depicted in the video portions was him being removed from his cell by two officers. He said he had hurt his back and knee in the prison van so he asked the officers “if we could slow down 'cause of my knee, my back was hurting, and they flipped out, they twisted my thumbs, and jammed my arm straight up into my thing”. His testimony was that they lifted him up by “my hands in the handcuffs by my thumbs”.

He claimed they twisted his arm which tore his rotator cuff. [ 72 ] The appellant said they gave him Tylenol, and said it took “forever to see the doctor” – which he did some time in September of 2021, (he could not recall precisely)- leading to an ultrasound and then an MRI in May with results on June 6. Defence counsel then took the trial judge through various medical documents. [ 73 ] Crown counsel put to the appellant that he was resisting the officers during the videos. He denied this.

Crown counsel also put some medication records to the appellant including a reference in a note on September 13, 2021, that provoked a debate between Crown counsel and defence counsel about what it said and meant. Defence counsel asserted that the appellant told the prescriber that his shoulder hurt “since arrest”. The trial judge disagreed with defence counsel during submissions: MR. LEBESSIS: So, again, just to be clear, page 42 does not say that my client fell and injured his shoulder as a result of it being injured in the van. That's false. That's not – THE COURT: Well, that is how I read it, by the way. MR.

LEBESSIS: That's not how I read it. Let's be clear. This page says reports right shoulder pain since arrest. That's how -- THE COURT: Says, "Fell in police van while handcuffed." MR. LEBESSIS: Does not -- fell in police van while handcuffed. But that doesn't mean that's where he substantiated these injuries. That's not -- THE COURT: Well, I read it as that is what he said was the cause. [ 74 ] Crown counsel then called CPO (community peace officer) Lebrie, who was working for the Commissionaires which had contracted with the EPS to work at the Detainee Management Unit.

He did not recall dealing with the appellant but did identify himself in the video clips as being an officer dealing with the appellant along with CPO Ho. The videos were from different angles. CPO Lebrie testified that he did not write reports on this matter nor was there any complaint about it brought to his attention. Defence counsel did not really challenge CPO Lebrie’s direct evidence nor put to him that he used excessive force against the appellant. [ 75 ] Crown counsel then called CPO Ho, who also said he did not recall dealing with the appellant.

He also did not recall being asked to report on his dealings with the appellant and was unaware of any complaints about the matter. He was also shown the video clips. His view was “like the reason why it looks like there's struggling is because most of the time accused, they don't want to go to Remand, so I'm assuming that's what happened”. Defence counsel objected to that evidence. The cross-examination of this witness also did not really challenge his direct evidence. [ 76 ] The appellant via defence counsel asserted that he made shoulder injury complaints concerning his arrest as early as July.

The trial judge’s later decision on the third voir dire respecting the allegation of excessive force rejected the appellant’s testimony. It is apparent from her reasons that the trial judge examined the contents of numerous medical records concerning differing health complaints the appellant made. She also expressed her

interpretation of the videos considering the CPO testimony. The trial judge recognized that the tear in the appellant’s shoulder was not seen until May 9, 2022, and observed: As indicated, this accused has testified the tear was caused when being moved, but there is ample evidence in the medical records to satisfy me this did not happen. He has given two different versions of acquiring the shoulder pain in the records, both of which are inconsistent with the evidence he tendered in court today.

I am satisfied that based on the video and the evidence of the medical records, there is not one whit of evidence to suggest moving by the officers caused the shoulder pain or that excessive force was used. [ 77 ] Defence counsel then argued that the appellant’s conditions of pre-sentence custody should still be accounted for in the sentence even if the appellant’s version was rejected . Defence counsel referred, inter alia , to the effect that COVID had on lockup by reducing inmate ability “to walk around or receive additional programming”.

He also argued mitigation because the appellant did not receive his ADHD medication, Vyvanse, for a period of about 60 days. [ 78 ] The trial judge asked if defence counsel was going to argue for a sentence reduction due to conditions at the Edmonton Remand Centre. The trial judge said she had discovered that defence counsel had made such a submission earlier to “Judge Ho”, actually Justice Mah, who had imposed a term of 3.5 years for the appellant’s prior conviction for a drug offence.

THE COURT: -- you have used this argument before Judge Ho, and Judge Ho found that there was nothing to suggest his case was any different from any other remand prisoner. I pulled out his decision. MR. LEBESSIS: Yes, that’s quite right. So we did argue that in front of the Honourable Justice Ho in the Court of Queen’s Bench, who he found was that he was not prepared. However, I believe part of his reasoning was that given the amount of time that Mr.

Peets would - - was receiving for that particular 5(1), that he was not prepared to give that considerable weight considering that was the lowest he was prepared to go with respect to sentencing. So I think that was a factor, and my friend -- THE COURT: It didn’t sound like it when I read it. It sounded as though the 3.5 years was given because there was only evidence of a single transaction. MR. LEBESSIS: That’s also correct. There was also no – beyond commercial scale wasn’t established in that particular case. THE COURT: Yes.

MR. LEBESSIS: He found -- THE COURT: You don’t need to go into more of the judgment. I am just telling you -- MR. LEBESSIS: Yeah. THE COURT: -- you’ve raised this argument before. MR. LEBESSIS: Yes. THE COURT: And you should have told me that. Okay. Now, not only do I -- I don’t need to hear from you now, but let’s talk about an appropriate sentence. MR. LEBESSIS: Sure. [79] Defence counsel then offered what he said was “material of Mr. Peets’s accomplishments” while he had been in Remand.

Thetrial judge was puzzled, saying: THE COURT: Didn’t you just tell me that I should be giving him more credit because he wasn’t able to take any courses? MR. LEBESSIS: That was prior. These particular courses -- oh, I think I may have said that actually. I think that -- I think that that was inAugust of 2021, so I think that that was shortly afterwards. THE COURT: This is August 6th. MR. LEBESSIS: Yeah. My apologies. [80] The trial judge then invited counsel to continue submissions on the substance of the sentencing.

Crown counsel pointed outthere were medical records that explained why the appellant was not given Vyvanse for a time. She submitted that the Court should notsecond-guess that medical opinion. Crown counsel also agreed that the appellant had asserted there was tier rotation resulting in 21-hours per day of lockdown. Both counsel made submissions as to quantum of sentence. Judgment of sentencing was reserved to a laterdate. IV.

Grounds of Appeal and Standards of Review [81] As said above, the first five grounds of appeal contend that the trial was in various ways unfair to the appellant. [82] To repeat, the first two grounds allege: unacceptable negligence by the police in failing to seize and preserve a 7-11convenience store surveillance video; and misuse by the trial judge of the procedural consideration in Browne v Dunn (1893), 1893CanLII 65 (FOREP), 6 R. 67 (UKHL) related to her assessment of the credibility of the appellant’s testimony as to allegedly telling theconstables at the scene of his arrest to go and to recover the 7-11 video.

Those arose in the second, post-verdict, defence voir dire whichwas a claim for a judicial stay based upon alleged breach of s 7 of the Charter for lack of disclosure and unacceptable negligence as toevidence. [83] The third ground of appeal asserts that conduct and statements by the trial judge during the trial gave rise to a reasonableapprehension of bias.

This overlaps with the fourth and fifth grounds but several specific points from elsewhere in the record are alsoitemized. [84] The fourth and fifth grounds relate to the offering in evidence by the Crown of the Firearm Certificate pursuant to s 117.13 ofthe Criminal Code. The fourth ground relates to the trial judge’s ruling refusing defence counsel’s application to be removed as counselbased on the assertion that he could not be both a witness and counsel on service of the Firearm Certificate.

The fifth ground relates tothe denial by the trial judge of defence counsel’s subsequent application for a mistrial. [85] The sixth ground of appeal is that the trial judge reached an unreasonable verdict in finding that the appellant had possessionof the drugs and the handgun. As stated earlier, the defence agreed that if possession of the drugs was proven, the possession was for thepurpose of trafficking. No specific ground of appeal challenges the sufficiency of proof of the linkage between drug analysis certificatesand the drugs seized from the vehicle.

Nor is there was a specific ground of appeal as to alleged Charter breaches arising from theinteraction between the constables and the appellant that resulted in his arrest and the seizures. [86] Although the first five grounds of appeal differ in their characteristics, they share the condition that they are only effective inlaw through s 686(1)(a)(iii) of the Criminal Code as being claims of miscarriage of justice.

In R v Doonanco, 2019 ABCA 118 at paras122-124, 87 Alta LR (6th) 221, the majority wrote: But the initial burden in relation to alleged miscarriages of justice under s 686(1)(a)(iii) of the Code is on the appellant. This is similar tothe situation for Charter arguments. It is for the appellant to show that the circumstances produced such a miscarriage of justice. In R vMorrissey (1995), (ON CA), 97 CCC (3d) 193 at para 87 we find this

summary by Doherty JA: 87 While s. 686(1)(

a) provides three distinct bases upon which this court may quash a conviction, each shares the same underlyingrationale. A conviction which is the product of a miscarriage of justice cannot stand. Section 686(1)(a)(

i) is concerned with the mostobvious example of a miscarriage of justice, a conviction which no reasonable trier of fact properly instructed could have returned on theevidence adduced at trial. Section 686(1)(a)(ii) read along with s. 686(1)(b) (iii) presumes that an error in law produces a miscarriage ofjustice unless the Crown can demonstrate the contrary with the requisite degree of certainty. Section 686(1)(a)(iii) addresses all other

miscarriages of justice not caught by the two preceding subsections. In so far as the operation of s. 686(1)(

a) is concerned, the distinctionbetween errors of law and all other types of error has only one significance. Where the error is one of law the Crown bears the burden ofdemonstrating that the error did not result in a miscarriage of justice. Where the error is not one of law alone the appellant bears thatburden.

This encapsulation of how s 686(1)(a)(iii) of the Criminal Code operates in conjunction with the other subsections was picked up in R vJaw, 2009 SCC 42 at para 29, [2009] 3 SCR 26 by Lebel J for the majority: 29 An error in proceedings that does not lead to an unreasonable verdict, a wrong decision on a question of law or a miscarriage of justiceis indeed an error, but one without legal effect. The error in the instant case is a perfect example of this. The argument that the trial judgehad attributed to the Crown is not contentious; the appellant did not dispute that he knew he had shot Cst. Seewald.

Indeed, it was thevery knowledge that he had killed the officer that supposedly caused him to threaten suicide in the first place. As a result, Vertes J.'smisstatement of the Crown's submission on post-offence conduct did not put anything to the jury that they would not already havepresumed. It cannot reasonably be argued that an undisputed, uncontroversial ... statement such as this one could lead to an unreasonableverdict under s. 686(1)(a)(

i) or a miscarriage of justice under s. 686(1)(a)(iii). There is no suggestion here that the verdict was notreasonably supported by the evidence or that the jury was swayed by this misstatement in a way that could have resulted in an unfairtrial: R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.), at pp. 540-41. Nor can it be said that the trial judgeerred on a question of law as contemplated in s. 686(1) (a)(ii), since the error occurred while the trial judge was simply summarizing theCrown's position, not while he was giving an instruction on a point of law.

The theory on post-offence conduct mistakenly attributed tothe Crown was not contrary to law or otherwise impermissible. The conclusion that the appellant knew he had shot the officer couldeasily, and fairly, be drawn from the evidence of his actions after the shooting. Since this error does not engage any of the three branchesof s. 686(1)(a), it is of no consequence to this appeal. ...

This passage from Jaw explains the role of s 686(1)(a)(iii) of the Code relating to how an appeal court would address an "error inproceedings" by its endorsement of Morrissey. ... [87] To be sure, the Supreme Court of Canada reversed the decision of the majority of this Court in Doonanco: 2020 SCC 2,[2020] 1 SCR 9. The difference in the appeal to this Court in Doonanco was that the dissenting judge concluded there was a miscarriageof justice within the meaning of s 686(1)(a)(iii) of the Criminal Code and would therefore allow the appeal and order a new trial on thatbasis.

The dissenter found that intentional late disclosure of an expert opinion report coupled with the failure to cross-examine thedefence expert under Browne v Dunn generated a miscarriage of justice. Significantly, in reversing this Court’s majority decision and inagreeing with the outcome of the dissenting opinion, the Supreme Court of Canada said that the conduct of the Crown was such as torender “Ms. Doonanco's trial unfair, resulting in a miscarriage of justice (see Criminal Code, R.S.C. 1985, c.

C-46, s. 686(1)(a)(iii)).” [88] Nothing in this outcome suggests that the position expressed in Morrissey was disavowed by the Supreme Court of Canada inDoonanco. Rather, the Morrissey approach appears to have been applied by the Court to the circumstances in Doonanco.

This positionalso appears to be what was applied by the Supreme Court of Canada recently in R v White, 2022 SCC 7 at paras 5-11, 411 CCC (3d)419 and also, in citing R v Wong, 2018 SCC 25, [2018] 1 SCR 696, that a claimant of miscarriage of justice under s 686(1)(a)(iii) of theCode bears the burden of showing prejudice to the defence in a real and not in a merely hypothetical sense. [89] In White, Karakatsanis J said at para 9 that, to escalate a complaint of unfairness to a miscarriage of justice, the defect must be“so serious that it shakes public confidence in the administration of justice”, citing R v Davey, 2012 SCC 75 at para 51, [2012] 3 SCR828. [90] The Supreme Court of Canada also considered miscarriage of justice in R v Kahsai, 2023 SCC 20 at para 5, 428 CCC (3d)135, saying that “the law imposes a high standard for proving a miscarriage of justice.

The inquiry must consider the circumstances ofthe trial as a whole” and “[a]ny irregularity does not result in a miscarriage of justice.” The Court referred to Davey and said at paras 67-69: To succeed on this appeal, Mr. Kahsai must show that the amicus appointment in his trial created an irregularity so severe that itrendered the trial unfair in fact or in appearance (R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 69 and 73).

He will establish amiscarriage of justice if the gravity of the irregularity would create such a serious appearance of unfairness it would shake the publicconfidence in the administration of justice (R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828, at para. 51, citing R. v. Wolkins, 2005 NSCA2, 229 N.S.R. (2d) 222, at para. 89). This analysis is conducted from the perspective of a reasonable and objective person, having regardfor the circumstances of the trial (Khan, at para. 73).

It must also acknowledge that while the accused is entitled to a fair trial, they arenot entitled to a perfect trial, and "it is inevitable that minor irregularities will occur from time to time" (Khan, at para. 72). The "miscarriage of justice" standard -- already a high bar -- is even higher when claimed based on perceived unfairness instead of actualprejudice.

When the perceived unfairness of a trial is at issue, "the appearance of unfairness must be pronounced, such that it would be aserious interference with the administration of justice and offend the community's sense of fair play and decency" (Davey, at para. 74).Whether a miscarriage of justice arose is a question of law reviewable for correctness (R. v. Schmaltz, 2015 ABCA 4, 599 A.R. 76, atpara. 13, citing Schmidt v. The King, (SCC), [1945] S.C.R. 438, at p. 439).

Courts have found a miscarriage of justice based on perceived unfairness in a range of circumstances, including where defence counselshared confidential information with the trial judge, in breach of solicitor-client privilege (R. v.

Olusoga, 2019 ONCA 565, 377 C.C.C.(3d) 143); where the trial judge showed prejudgment by implying that a defence witness was committing perjury in his testimony (R. v.Sherry (1995), (ON CA), 26 O.R. (3d) 782 (C.A.)); where defence counsel did not prepare the accused to testify (R. v.Simpson, 2018 NSCA 25, 419 C.R.R. (2d) 174); and where the accused was forced to proceed without representation, despite their statedwishes and being faultless for their circumstance (R. v. Al-Enzi, 2014 ONCA 569, 121 O.R. (3d) 583; R. v. Pastuch, 2022 SKCA 109,419 C.C.C. (3d) 447).

As these examples show, the appearance of unfairness must be serious enough to taint the administration of justiceto rise to the level of a miscarriage of justice. [91] Based on this, the standard of review applicable to “miscarriage of justice” is not simply a matter of showing a defect in

process or an error of law. Nor is it merely a matter of showing palpable and overriding error in fact finding. [92] The strictness of the test for proof of miscarriage of justice is consistent with the principles applicable to reasonableapprehension of bias, which is the third ground of appeal.

Apprehension of bias is not a matter of subjective impressions but involves afirmly evidenced position in the mind of an informed and objective observer which is enough to rebut the presumption of judicialintegrity sufficiently to undermine confidence in the outcome. [93] We also observe that the appellant did not apply to the trial judge to order a mistrial on any ground of apprehension of bias.

Inthe circumstances of this case, failure to have done so is also a sufficient basis for rejection of the third ground of appeal, regardless ofthe trial events on which it is alleged to stand. [94] As for the sixth ground of appeal the appellant’s factum does not describe what it is that makes it unreasonable for the trialjudge to find that the appellant knew there was a gun in the brown bag the appellant handled and that he knew there was a pharmacy ofdangerous drugs in a grey bag in the vehicle.

Rather, as expressed in his factum, he simply cites R v Villaroman, 2016 SCC 33, [2016] 1SCR 1000 for the statement that “reasonable inferences inconsistent with guilt are inconsistent with a verdict of guilt” and states that“weaknesses in the Crown’s case here suggest a verdict of guilt was unreasonable”. V. Discussion [95] Discussion of the grounds of appeal is organized topically hereafter. First Ground of Appeal (Stay of Proceedings) [96] The appellant expresses the first ground of appeal in this way: a.

Stay of proceedings (Charter) application dismissed, despite strong argument that lack of both 7-Eleven video and DNA evidence werecritical to defence case. [97] Context for the first and second grounds of appeal mostly arose during the cross-examination of Cst Link by defence counselduring the first blended voir dire/ trial concerning the video from the 7-11 convenience store. [98] During the run up to trial, the Crown asked Cst Link to try to obtain the video. In cross examination by defence counsel, CstLink said he sought to do so on February 10, 2022, but it was no longer available.

On this topic Crown counsel’s few questions in re-direct related to the instructions given in writing to Cst Link to inquire as to the video. It is noteworthy (relevant to the fourth and fifthgrounds of appeal) that during that second voir dire, defence counsel made a number of assertions of procedural facts about defencecontacts with the Crown concerning the follow up effort by Cst Link to obtain the CCTV video. The trial judge accepted those assertionsof defence counsel as made by an officer of the court on procedural matters.

The Crown had no objection to the trial judge doing so. [99] In addressing the alleged police duty (as set out at paragraph 69 above) and referring to third party disclosure, the trial judgenoted the distinction drawn between the duty to disclose the ‘fruits’ of the investigation, which dates to R v Stinchcombe, (SCC), [1991] 3 SCR 326 at para 12, and the obligation to seek evidence possessed by third parties, as discussed in World BankGroup v Wallace, 2016 SCC 15 at paras 114-115, [2016] 1 SCR 207, where the Supreme Court of Canada said: This process is distinct from the Stinchcombe framework which applies when documents are in the hands of the Crown or the police.Under that framework, the Crown must disclose all documents in its "possession or control" which are relevant to an accused's case (R. v.McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 (S.C.C.), at para. 22; R. v.

Stinchcombe, (SCC), [1991] 3 S.C.R. 326 (S.C.C.)).To withhold disclosure, the Crown must demonstrate that the documents sought are "clearly irrelevant, privileged, or [that their]disclosure is otherwise governed by law" (McNeil, at para. 18; see also Stinchcombe, at p. 336). Stinchcombe places the burden on the Crown to justify non-disclosure.

In contrast, O'Connor requires the accused to justify production.These two regimes share a fundamental purpose: protecting an accused person's right to make full answer and defence, while at the sametime recognizing the need to place limits on disclosure when required. [Emphasis added] In other words, the trial judge was initially addressing the location of the burden of proof in that passage.

This ground of appeal mainlyspeaks to the limits on the right to disclosure. [100] The appellant presently asserts that the CCTV video and DNA evidence were “critical” to the defence case on the basis that“the lack of possibly exculpatory video – despite clear evidence that it was sought immediately and loudly by Peets – is problematic”.The trial judge’s fact findings do not sustain this assertion.

She disbelieved the appellant on his claim that he told the police to get theCCTV video. [101] The trial judge was not persuaded by the defence argument the fact that Cst Link and Cst Taylor could not recall what theappellant said on arrest was inconsistent with finding that the appellant did not say that to them. During the first voir dire/ trial, defencecounsel briefly cross-examined Cst Link about his notations on certain police file records including the appellant’s ‘rude’ comments afterarrest.

Cst Link’s neutral evidence was contrasted with appellant’s testimony during the second voir dire that he “started yelling at himfrom the police cruiser telling him, I said, Listen that's not mine. I said, You need to go back to that 7-Eleven and question that personthat I dropped off there. Nothing came about it”. There was no palpable and overriding error in the trial judge rejecting the appellant’sevidence that he demanded the police recover the CCTV video.

Whether or not the appellant demanded it, the s 7 Charter claim wouldhinge on the existence of a duty to investigate, seize, retain and produce the CCTV video. [102] This first ground of appeal also refers to DNA evidence as part of the s 7 claim. On DNA, defence counsel cross-examined CstLink during the first voir dire/ trial about his handling of the handgun. Inter alia, Cst Link put a zip lock on it and the magazine to keep

them together for exhibits. For the purposes of the first voir dire/ trial, the defence argued that DNA analysis revealed no DNA of theappellant but did show DNA of a male person and two other unknowns. Defence pointed to Cst Link’s evidence that a female person leftthe vehicle and entered the 7-11 store.

Defence counsel also suggested that Cst Link may have put his own DNA on the handgun. [103] Raising these circumstances and raising issues of other allegedly inadequate record keeping by Cst Link, the defence mountedan overall submission to the trial judge that there was unacceptable police negligence in the investigation and reporting by Cst Link forthe purposes of the s 7 Charter stay motion. To occasion a “miscarriage of justice” requires more than simply expressing a theory aboutwhat more might have been done by the police.

It is only when relevant evidence is lost or destroyed that the Crown must satisfy thecourt it was not lost or destroyed as a result of unacceptable negligence and, even then, it is a further step whether a stay of proceedingsis demanded: see eg Rv Abreha, 2019 ONCA 392 at paras 10-14, [2019] OJ No 2424 (QL) (holding that prejudice from failure to retaina video could be remedied by weighing its absence); R v Hersi, 2019 ONCA 94 at paras 25-29, 373 CCC (3d) 229, leave denied (2022)[2021] SCCA No 406 (SCC No 39913) (a case involving knowing destruction of relevant evidence); Ontario (Ministry of Labour) vMiller Group Inc, 2021 ONCA 879 at paras 44-45, 500 CRR (2d) 168, leave denied [2022] SCCA 31 (QL) (SCC No 40052) (a casewhere the prejudice from disassembling roller equipment was not apparent).

In any event, the fact finding of the trial judge here was thatthere was no negligence. [104] This topic of DNA raises no question of lost evidence nor any failure of Crown disclosure. Further, Crown counsel consented tothe admission of the evidence at the trial in a timely way to allow the defence to argue ‘doubt’ about the implications of the gun.

Even ifone were to assume that the CCTV evidence might be revealing as to who the female person was that left the vehicle, the appellantwould presumably already know who that person was, so there would be nothing involving a Crown disclosure duty: compare R vDavey, 2012 SCC 75 at para 46, [2012] 3 SCR 828; R v Michelle, 2015 MBCA 6 at paras 12-23, [2014] MJ No 362 (QL).

This Court inR v Dias, 2010 ABCA 382 at para 39, 265 CCC (3d) 34, referred the alleged legal requirement of Crown disclosure to the accused offacts the accused would already know, in sardonic terms saying: “Insisting on formal notice of that is punctilio or empty ritual worthy of17th or 18th century ceremony in grand European palaces.” [105] Furthermore, whatever else the content of such a CCTV video might possibly provide is complete conjecture. The law does nothold the police and the Crown: “... to a standard of clairvoyance in the disclosure process (R. v.

Wilson (H.B.) (1994), (ON CA), 68 O.A.C. 131 atpara. 18). The assessment of relevance, for disclosure purposes, should not be done from "the vantage ground that hindsight provides"(R. v. Sweeney (D.J.), 2003 MBCA 127 at para. 19, 180 Man.R. (2d) 35).” See Hyra v Manitoba, 2015 MBCA 55 at para 45, 386 DLR(4th) 63.

Indeed, the vantage point of hindsight in the case at bar remains unrevealing as to what the CCTV video could be able to prove. [106] Were there a link between the DNA evidence and the female person who left the appellant’s car, that evidence would also beuninformative and would not move the dial favorably for the appellant.

Even assuming that person could be identified, and furtherassuming that person could be cajoled into providing DNA to compare with the handgun – a dubious proposition in its own right -- thatresult would not advance the appellant’s defence beyond what it already was, namely that a female person handled the gun before it wasseized by Cst Link and there was no DNA on the gun that was attributed to the appellant. [107] Legally speaking, the presence of other DNA on the gun was not dispositive of a material issue.

Knowledge and control for thepurposes of possession are required to be proven but they do not mandate continuous personal handling in all cases: see R v Terrence, (SCC), [1983] 1 SCR 357; compare R v Savory (1996), (ON CA), 94 OAC 318, [1996] OJ No 3811(QL) at paras 6-7; R v Gambilla, 2008 ABPC 8 at paras 23-24, [2008] AJ No 1579 (QL) citing numerous authorities; R v Morelli, 2010SCC 8 at paras 15 to 17, [2010] 1 SCR 253. [108] Section 4(3) of the Criminal Code provides: For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [109] This Court in R v Bird, 2020 ABCA 236 at para 13, 389 CCC (3d) 1 observed: The elements of control and physical contact are often closely related.

The concepts were explained in Morelli at para. 16: 16 On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that heor she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with anact of control (outside of public duty): Beaver v. The Queen, (SCC), [1957] S.C.R. 531, at pp. 541-42. (italics in original,underlining added) "Physical custody" may exist even where there is no touching of the object.

For example, a person carrying a backpack known to containa gun is properly seen as being in personal possession of the gun. A purchaser of drugs is in personal possession of drugs in his vehicle,even if they were placed on the front seat by the seller, without the purchaser ever touching them. While manual handling andknowledge is generally conclusive of personal possession, the absence of manual handling does not necessarily preclude possession,

because "control" and knowledge combined with a sufficient degree of physical proximity may nonetheless establish possession. Whether physical proximity combined with control amounts to personal possession is a matter of degree. [Emphasis added] [ 110 ] Accordingly, the fact of there being no DNA confirming recent physical handling of the handgun by the appellant might have some relevance, but it was up to the trier of fact to decide what weight to give to that consideration. The degree of remove from the scope of relevance about lack of DNA increases when one is talking about the lack of a CCTV video.

On both matters, it did not hurt, let alone undermine, the defence argument of ‘loss of evidence’ on these facts. Rather, the trial judge simply rejected the defence argument on reasoned grounds. [ 111 ] Returning to the broader question of the alleged duty of the police to gather evidence about matters that are not facially relevant or probative, the appellant cites the Nkemka trial decision to contend here that it was “irrational” for the trial judge to see no reason to expect the CCTV video would be exculpatory.

On such a standard of rationality, police would be obliged to track down every theoretical trail and, in the circumstances, they would have engaged in an intentional infringement of a principle of fundamental justice arising under s 7 of the Charter if they failed to do so -- whether or not doing so was demanded by the subject of the investigation and whether or not there was any prejudice to the person under investigation. [ 112 ] This Court has made clear that the subject of an investigation does not possess under s 7 of the Charter a power to direct the investigation against himself.

In R v Osman , 2022 ABCA 77 at para 117 , 42 Alta LR (7th) 220, this Court said: On this record, the allegation that the RCMP obtained a DNA test of samples from the bathroom sink and that the Crown failed to disclose it, is baseless.

At best, Mr Osman is arguing that the RCMP should have investigated more thoroughly but it is well established that defendants do not have a Charter right to direct the investigation or have the police or the Crown investigate more: R v Dias , 2010 ABCA 382 at paras 38–40 ; R v Darwish , 2010 ONCA 124 at paras 26–46 ; R v Crane , 2013 NLCA 44 at paras 18–21 ; R v Levin , 2014 ABCA 142 at para 45 ; R v Burgar, 2016 BCCA 204 at para 22 ; R v Montague-Mitchell , 2018 SKCA 78 at paras 57–58 ; Ontario v Miller Group , 2021 ONCA 879 at paras 33–34 . [ 113 ] Saying so reinforced what this Court colourfully said in Dias at para 41 : “The defence cannot manufacture a breach by demanding that the Crown ‘disclose’ a full list of all its unicorns.” The court in Osman also agreed with what the Ontario Court of Appeal explained in detail in R v Darwish , 2010 ONCA 124 at paras 26-46 , 252 CCC (3d) 1, leave denied [2010] SCCA No. 124 (QL) (SCC No 33654). [ 114 ] The appellant failed to show any breach of s 7 of the Charter in how the police and Crown dealt with the DNA or the CCTV video.

A stay of proceedings is the most draconian remedy that a criminal court can grant.

Such remedy may apply in the 'clearest cases' in which an abuse of process warrants a stay of proceedings, sometimes described as ‘intolerable’ or ‘egregious’: see R v Babos , 2014 SCC 16 at paras 30-32 , [2014] 1 SCR 309; R v Ahmad , 2020 SCC 11 at paras 112-113 , [2020] 1 SCR 577; R v Ramelson , 2022 SCC 44 at para 32 , 420 CCC (3d) 151; R v Haevischer , 2023 SCC 11 at paras 17 , 22, 73, 425 CCC (3d) 411 (the Court decided only if the abuse motion was manifestly frivolous, not whether it was made out). [ 115 ] As pointed out in Ahmad by Moldaver J, at para 113 (dissenting but not on this point), citing earlier authority about entrapment, “the doctrine of entrapment is not ‘a vague licence to stay proceedings whenever police conduct offends a particular judge's sensitivities or his or her perception of how the police should go about doing their business’ ...”.

Also as pointed out by Zampino v The King , 2023 QCCA 1299 at paras 152-155 , 206-217, [2023] J.Q. no 10803 (QL) under motion on SCC No 41069, there may be abuse of process but if it does not produce prejudice as described in the two principal categories of Babos , a stay is not justified. And as for the third category in Babos , the use of the residual authority will rarely be appropriate: Zampino at paras 200-205 ; see also R v Currado , 2023 ONCA 274 at para 17 , 426 CCC (3d) 6, leave denied [2023] SCCA No 258 (QL) (SCC No 40804). [ 116 ] This ground of appeal has no merit.

Second Ground of Appeal (Browne v Dunn) [ 117 ] The appellant expresses this ground of appeal in the following wording: b. Browne v Dunn misapplication in relation to the application. [ 118 ] As said in R v M(RJ), 2023 MBCA 28 at para 23 , [2023] MJ No. 91 (QL): Whether the rule is engaged is a question of law reviewable on a standard of correctness. If a trial judge is satisfied that there is a breach of the rule they have a broad discretion to determine the appropriate remedy.

The extent of the rule's application is within the discretion of the trial judge which, absent an error in principle, is entitled to deference (see R v Lyttle , 2004 SCC 5 at para 65 ; R v Drydgen , 2013 BCCA 253 at para 22 ; R v Dexter , 2013 ONCA 744 at para 22 ; R v Abdulle , 2016 ABCA 5 at para 10 ; Chandroo c R , 2018 QCCA 1429 at para 13 ; R v Willis , 2019 NSCA 64 at para 9 ; Dowd at para 21; and R v Cupid , 2021 ABCA 386 at para 22 ).

Trial fairness on this issue is also assessed for correctness: R v Abdulle , 2016 ABCA 5 at para 10 , 609 AR 396. [ 119 ] In R v Marjanovic and Soroush , 2022 MBCA 84 at para 37 , 84 CR (7 th ) 290, the Court said: The application of the rule is fact-driven. As a result, a trial judge has a broad discretion in determining whether the rule is engaged. As stated by the Supreme Court in R v Lyttle , 2004 SCC 5 , the rule "is not fixed. The extent of its application is within the discretion of the trial judge after taking into account all the circumstances of the case" (at para 65).

Therefore, a trial judge's decision in this regard is entitled to deference absent an error in principle (see Dowd at paras 5-6; R v Quansah , 2015 ONCA 237 at para 90 , leave to appeal to SCC refused, 37013 (22 September 2016); R v Knox , 2017 SKCA 8 at para 53 ; and Shephard v R, 2019 NBCA 76 at para 77 ). See also R v Chandroo , 2018 QCCA 1429 at paras 13-16 , [2018] QJ No 8321 (QL).

[120] The argument for the appellant on this Browne v Dunn ground begins that the witness, Cst Link, was “not being impeached” bythe appellant, who subsequently offered evidence significantly contrary to his version without questioning Cst Link on the same points.The implication is that there was no Browne v Dunn breach and the trial judge erred to have approached tha

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