



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Pan, 2012
    ONCA 581

DATE: 20120910

DOCKET: C53300 & C53744

Laskin, Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Er Mei Pan and Quan Zhen Ban

Respondents

Kevin Wilson, for the appellant

Kim Schofield, for the respondents

Heard: April 27, 2012

On appeal from the orders of Justice J. Elliott Allen of
    the Ontario Court of Justice dated January 19, 2011 and April 29, 2011, staying
    the proceedings against the respondents.

Laskin
    J.A.:

A.

overview

[1]

The overriding issue on this crown appeal is whether the trial judge
    erred in principle or exercised his discretion unreasonably in staying charges
    against the respondents Pan and Ban.

[2]

The Peel Regional Police obtained a search warrant for a house where
    they believed there was a marijuana grow operation.  They went to the house,
    knocked repeatedly, and announced that they were the police with a warrant.  No
    one answered.  After 30 to 40 seconds, the police rammed open the door.  Inside
    they found 1,370 marijuana plants.  They also found and arrested Pan and Ban.

[3]

The respondents were charged with production of marijuana, possession
    for the purpose of trafficking in marijuana and theft of electricity.  The
    Crown proceeded by indictment and the respondents were tried in the Ontario
    Court of Justice.

(i)

The Stay of Pans Charges

[4]

The respondents needed interpreters, and interpreters were available for
    them on the first three days of the trial, during which all the evidence was
    heard.  On the fourth day of trial, the date set for argument, a Mandarin
    interpreter was not available for Pan.  Although neither respondent asked him
    to do so, the trial judge stayed the charges against Pan.  He expressed
    frustration with what he viewed as chronic and deliberate underfunding of the
    courts.  He claimed that his judicial independence and Pans right both to
    access her own trial and to be tried within a reasonable time had been
    compromised.

[5]

The Crown appeals this stay.  It submits that the trial judge erred in
    principle by failing to apply the proper test for a stay.  The Crown also
    submits that the trial judge erred in law in holding that the unavailability of
    an interpreter on one day of the trial interfered either with his judicial
    independence or Pans right to be tried within a reasonable time.  The Crown
    contends that the trial judge should simply have adjourned the trial to a day
    when a Mandarin interpreter would be available.

(ii)

The Stay of Bans Charges

[6]

Ban was injured during his arrest.  He sought a stay under s. 24(1) of
    the
Charter
on the ground that the police breached his s. 7 rights by
    using excessive force.  The trial judge rejected Bans evidence and did not
    find that the polices use of force was excessive.  Nevertheless, he stayed the
    charges on the ground that the police had breached the knock-and-announce rule
    and that Bans injuries were a foreseeable consequence of this breach.

[7]

On its appeal of this stay, the Crown makes three main submissions:

(1)

The trial judge erred in law in holding that the police breached the
    knock-and-announce rule;

(2)

The trial judge erred in law in finding a breach of s. 7 of the
Charter
;
    and

(3)

The trial judge erred in law by failing to apply the proper test for a
    stay under s. 24(1) of the
Charter
.

[8]

I agree with the Crowns submissions.  For the reasons that follow, I
    would allow the Crowns appeal, set aside both stays, and order a new trial for
    both respondents.

B.

stay of the charges against pan

[9]

The respondents trial had proceeded on three non-consecutive days  two
    in June 2010 and the third in November 2010.  Argument was scheduled for
    January 19, 2011.  On that date, the Mandarin interpreter arranged for Pan was
    not available; she was in another courtroom.

[10]

Without
    having been asked by counsel, the trial judge stayed the charges against Pan. 
    In his view, the root problem was the provinces decision to allocate
    inadequate resources to interpreters, to allow me to continue at least Ms.
    Pans case today.  He rejected the option of an adjournment or severance and
    concluded his ruling by saying:  I will, in fact, not allow this failure of
    the province to properly fund the justice system to go without consequences.

[11]

The
    trial judge grounded the stay on three bases:

(1)

Interference with judicial independence;

(2)

Denial of Ms. Pans right to be tried within a reasonable time; and

(3)

An abuse of process because Ms. Pan could not access her own trial.

[12]

The
    Crown has a right of appeal against a stay under s. 676(1)(c) of the
Criminal

Code
.  A stay is a discretionary remedy.  It is also a remedy of last
    resort, to be ordered only in the clearest of cases.  An appellate court is
    entitled to interfere if the trial judge exercised this discretion unreasonably
    or erred in principle, which includes erring in law.  Against this standard of
    review I turn to the trial judges three grounds for granting a stay.

(i)

Interference with judicial independence

[13]


The trial judge found that the unavailability of an
    interpreter compromised judicial independence: It impacts on the independence
    of the judiciary, both in terms of having adequate supports to do their jobs
    and particularly the right under the
Courts of Justice Act
to
    determine when cases proceed  I will not be told that I cannot continue a
    trial on a date which I have ordered the trial to proceed because the province
    will not provide adequate resources.

[14]

The
    trial judge was understandably frustrated because the case could not go forward
    that day.  But to say that judicial independence was affected because it could
    not was wrong in principle.

[15]

Judicial
    independence has three characteristics: security of tenure, financial security
    and administrative independence.  In this case, only administrative
    independence could conceivably be implicated.  Unlike, for example, financial
    security, which has both an individual and an institutional aspect,
    administrative independence attaches only to the court as an institution. 
    Contrary to the apparent view of the trial judge, administrative independence
    has nothing to do with the individual independence of a judge of the court.  It
    means control by the court, as an institution, over the administrative
    decisions that bear directly and immediately on the exercise of the judicial
    function.  The Supreme Court has defined administrative independence narrowly,
    referring only to the assignment of judges, sittings of the court and court
    lists  as well as the related matters of allocation of court rooms and
direction
    of the administrative staff engaged in carrying out these functions

    (emphasis added): see
Reference re: Remuneration of Judges of the
    Provincial Court (P.E.I.)
, [1997] 3 S.C.R. 3, at paras. 115-20.

[16]

The
    trial judges finding that judicial independence was compromised could only be
    supported if there were evidence that the unavailability of an interpreter that
    day amounted to interference with the ability of the Ontario Court of Justice,
    as an institution, to direct its administrative staff.  There was no such
    evidence.  The trial judges complaint that the province chose to allocate
    inadequate resources to interpreters was entirely unsubstantiated.  Thus,
    grounding the stay of the charges against Pan on interference with judicial
    independence was unwarranted.

(ii)

Denial of Ms. Pans right to be tried within a
    reasonable time

[17]

The
    trial judge also found that the unavailability of an interpreter impacts on
    the right of the accused to be tried within a reasonable time and to continue with
    their trial  [s]o it is a gross violation of Ms. Pans right to have her trial
    continue.

[18]

Section
    11(b) of the
Charter
guarantees an accused the right to a trial within
    a reasonable period of time.  A well-established framework exists for
    determining whether an accuseds s. 11(b) right has been violated.  The court
    must consider and balance four criteria: the length of the delay, waiver of
    time periods, the explanation for the delay, and prejudice: see
R. v. Morin
,
    [1992] 1 S.C.R. 771.

[19]

Ms.
    Pan did not bring a motion for a stay for a violation of s. 11(b).  Even if the
    trial judge could grant a stay without one having been requested, he was at
    least required to carry out the analysis mandated by the Supreme Court of
    Canada in
Morin
.  He did not do so.

[20]

Admittedly,
    at various points in his ruling, the trial judge did refer to matters that
    could be considered on a s. 11(b) assessment.  For example, the charges were
    serious, Ms. Pan was on bail, and her life was on hold while the charges were
    outstanding.  However, these isolated references do not constitute a proper s.
    11(b) analysis.

[21]

The
    trial judge was, therefore, wrong in principle to ground a stay on a denial of
    Ms. Pans s. 11(b) right to a trial within a reasonable time.  Had he adjourned
    the trial, as he ought to have done, Ms. Pan would have been entitled to bring
    a s. 11(b) motion on a continuation of the trial.  Whether such a motion would be
    successful is not before us.

(iii)

Abuse of process because Ms. Pan could not
    access her own trial

[22]

The
    trial judge did not use the words abuse of process, but both counsel urged that
    this is what he meant when he held Ms. Pan could not access her own trial because
    an interpreter was not available for her.  I accept counsels characterization
    of the trial judges intent.  However, a stay for abuse of process because of
    the unavailability of an interpreter was not justified.

[23]

Section
    14 of the
Charter
did guarantee Ms. Pan the right to the assistance of
    a Mandarin interpreter, as she did not understand the proceedings in English. 
    Without the assistance of an interpreter, she could not have a fair trial. 
    However, the usual remedy for a breach of s. 14 is a rehearing of the
    proceeding in which the breach occurred: see
R. v. Tran
, [1994] 2
    S.C.R. 951.  In this case, a simple adjournment to a date when an interpreter was
    available would have addressed the prejudice that would have flowed from
    proceeding without one.

[24]

In
    addition, the trial judge erred by failing to consider, let alone apply, the
    proper test for a stay.  A stay is a remedy of last resort because it deprives
    the community of a trial on the merits.  It is to be granted only in the clearest
    of cases and usually only if two criteria are met:

·

The prejudice caused by the abuse in question will be manifested,
    perpetuated or aggravated through the conduct of the trial, or by its outcome;
    and

·

No other remedy is reasonably capable of removing the prejudice.

See e.g.
R. v. Regan
, 2002 SCC 12, [2002] 1
    S.C.R. 297.

[25]

Had
    the trial judge applied this test, he could not have stayed the charges against
    Pan because she could not access her own trial.  Neither criterion was met. 
    Even if she were prejudiced by the unavailability of an interpreter that day,
    that prejudice would not be manifested, perpetuated or aggravated by
    continuing the trial with an interpreter on another day.  Another remedy  an
    adjournment to a date when an interpreter was available  was reasonably
    capable of removing the prejudice.  The trial judge was, therefore, wrong to
    stay the charges on the ground Pan could not access her own trial that day.

[26]

In
    staying the charges against Pan, the trial judge erred in principle and
    exercised his discretion unreasonably.  I would set aside the stay and order a
    new trial on the charges against Pan.

C.

Stay of the Charges Against Ban

[27]

The
    circumstances of Bans arrest gave rise to his motion for a stay and to the
    trial judges order granting it.  The police knocked on the door, announced who
    they were and why they were there, and then, on getting no response, battered
    opened the door and entered the house.  They had their guns out.  One of the
    police officers, Holland, found Ban in the basement washroom and tried to
    arrest him.  Ban and the police gave different accounts of what then occurred.

[28]

Ban
    testified that while he was urinating, a police officer confronted him and hit
    him with the butt of a handgun.  Ban said that a number of officers forced him
    to the floor, kicked him and stepped on him.

[29]

Holland,
    on the other hand, testified that Ban was hiding behind the door in the
    bathroom with his hands tucked in toward his chest where Holland could not see
    them.  Holland became concerned that Ban might have a weapon.  He tried to gain
    control over Ban by forcing him out of the bathroom and into the hallway. 
    Holland and Ban struggled.  During the struggle Ban hit his head on a
    countertop in the bathroom.

[30]

Ban
    then tried to get away down the hallway.  Another police officer, Krause,
    blocked his way.  Krause delivered two or three knee strikes to Ban to subdue
    him.  Eventually, Holland and Krause forced Ban to the ground and handcuffed
    him.  Ban was injured in the altercation.  He sustained a cut to his forehead, a
    small cut to his ear, and bruises to his back and torso.

[31]

Another
    police officer administered first-aid to Ban, gave him blankets and water, and
    arranged for an ambulance to take him to the hospital.  Ban was treated in the
    hospital; the cut on his forehead required 11 stitches.  Ban testified that his
    injuries caused headaches, abdominal pain, and memory and sleep problems.

[32]

An
    officer with Peel Police prepared a use of force report in connection with
    Bans injuries.  The report was filed as an exhibit at trial.

(i)

Breach of the knock-and-announce rule

[33]

The
    trial judge held that, while the police had a search warrant, they did not
    conduct the search reasonably, contrary to s. 8 of the
Charter
.  He
    held that they effected what he called a dynamic entry  a departure from
    the knock-and-announce rule without any grounds for doing so.  He said:

Particularly, the failure of someone to answer the door within
    60 seconds, when one expects fans to be running is not an exigency that
    justifies a dynamic entry.  The knock-and-announce rule is not a
    knock-and-break-in-the-door-if-no-answer rule.  It means that non-violent
    execution of the warrant must be attempted.

[34]

The
    Crown submits that the trial judge erred in holding that the police did not
    comply with the knock-and-announce rule.  I agree with this submission.

[35]

Unless
    exigent circumstances exist, the police must knock and announce their presence
    before entering a home.  The knock-and-announce rule has been part of our law
    for over 400 years.  The Supreme Court of Canada recently reaffirmed the rule
    in
R. v. Cornell
, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 18:

Except in exigent circumstances, police officers must make an
    announcement before forcing entry into a dwelling house.  In the ordinary case,
    they should give: (i) notice of presence by knocking or ringing the door bell,
    (ii) notice of authority, by identifying themselves as law enforcement officers
    and (iii) notice of purpose, by stating a lawful reason for entry.

[36]

The
    rationales for the rule are well known: the protection of the dignity and
    privacy interests of the occupants of the house, and the enhancement of the
    safety of the police and the public: see
Cornell
, at para. 19.

[37]

In
    this case, there were no exigent circumstances that would justify a departure
    from the knock-and-announce rule.  However, the record shows that the police
    complied with the three components of the rule: they knocked several times, they
    announced who they were, and they stated their reason for being there  to
    execute a search warrant.  This was not disputed at trial, where counsel for Ban
    stated in argument, this is not a lack of knock notice case because there is
    evidence that there was a knock, a notice given and a short period of time and
    then the forced entry: see Transcript of Proceedings, January 19, 2011, at p.
    82.

[38]

The
    trial judge was wrong to say [t]he knock-and-announce rule is not a
    knock-and-break-in-the-door-if-no-answer rule.  That is exactly what the rule
    is.  If the police receive no answer, they are entitled to force entry into a
    home.  This corollary to the knock-and-announce rule traces back to the
    decision in
Semaynes Case
(1604), 5 Co. Rep. 91a, 77 E.R. 194 (K.B.),
    at p. 195:

In all the cases when the King is party, the sheriff (if the
    doors be not open) may break the partys house, either to arrest him, or to do
    other execution of the K.s process, if otherwise he cannot enter.  But before
    he breaks it, he ought to signify the cause of his coming, and to make request
    to open doors.

[39]

The
    Supreme Court affirmed this corollary principle in both
Cornell
and in
    its earlier decision in
Eccles v. Bourque
, [1975] 2 S.C.R. 739.

[40]

I
    accept that there is a subsidiary, but perhaps important, issue arising out of
    the way the police implemented the knock-and-announce rule.  The issue is
    whether they waited long enough before forcing entry into the home.  The
    knock-and-announce rule requires the police to give the occupants of the home a
    reasonable amount of time to answer: see e.g.
R. v. Cao
, 2008 BCSC
    139, 167 C.R.R. (2d) 120.  Whether the 30 to 40 seconds the police waited in
    this case was a reasonable amount of time may have to be considered at the new
    trial.

[41]

The
    trial judge did express concern that the police waited less than one minute
    before entering the home.  That was not, however, the focus of his finding that
    they ignored the law.  Instead, he focused on the polices dynamic entry.  He
    held that the dynamic entry, unless justified, amounts to a breach of the
    knock-and-announce rule.  That holding was an error of law.

[42]

The
    stay imposed by the trial judge flowed from his holding that the Crown had
    failed to justify a departure from the knock-and-announce rule:

The duty to engage in analysis of the need to depart from the
    knock-and-announce rule is not a guideline; it is a prerequisite to the
    lawfulness of the decision.  The need for some basis for such a decision is not
    preferable; it is obligatory.

The obligation on the Crown to lead evidence to justify the
    decision is a prerequisite to a finding by the court, if one is to be made,
    that the departure was necessary.  The police did not know what the law was;
    did not care; and did not comply with it.  An occupant of the house received
    serious, foreseeable injuries.  There is nothing unclear about this case. 
    Anything short of a stay would be an expression of approval of the police
    decision to ignore the legal requirements of the execution of the warrant in
    this manner.

[43]

The
    trial judge erred in holding that the Crown was required to justify a departure
    from the rule.  The record shows that the police complied with the three
    components of the rule.

(ii)

Breach of section 7 of the
Charter

[44]

Although
    the trial judge found that the police did not conduct the search reasonably
    because of their dynamic entry to the home, he rested his stay order on a
    breach of s. 7 of the
Charter
.  He held:

While this could be dealt with as a Section 24(2) analysis, it
    is better dealt with by Section 7 and 24(1).  The decision to use dynamic entry
    put the safety of all the occupants at risk.  The injuries to Mr. Ban were
    serious and foreseeable.  The exigency was created by the police.  There was
    not only no basis to use a violent entry but there was an apparent unawareness
    or indifference to the legal prerequisites for so doing.

[45]

Even
    accepting the trial judges finding that Bans injuries were serious and
    foreseeable, that finding does not make out a breach of s. 7 of the
Charter
. 
    To show that his s. 7 right to security of the person was violated, Ban had to
    show a substantial interference with his physical or psychological integrity or
    with the integrity of the justice system.  He sought to do so by claiming that
    the police used excessive force in arresting him.  He contended that a police
    officer hit him with a handgun.  The trial judge rejected Bans evidence, but
    then made no finding of fact about what did happen:

While I do not accept the evidence of pistol-whipping, I am not
    getting a reliable account of the circumstances in the infliction of the bodily
    harm on Mr. Ban from the police, and that goes to the issue of good faith.

[46]

Thus,
    the trial judge did not make a finding that Ban was injured because the police
    used excessive force to arrest him.  Instead, the trial judge found only that
    Bans injuries were a foreseeable consequence of an unjustified dynamic entry.

[47]

Excessive
    force may give rise to a breach of s. 7 if it substantially interferes with an
    accuseds security of the person interest.  The use of force that is not
    excessive  even force that gives rise to foreseeable injury  would not likely
    amount to a breach of s. 7.  The police are entitled to use force to make an
    arrest as long as the force used is proportional, reasonable and necessary: see
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206.

[48]

In
    this case, absent a finding that the police used excessive force to arrest Ban,
    I do not see how the trial judge could find a breach of s. 7 of the
Charter
:
    see
R. v. Gangl
, 2011 ABCA 357, 515 A.R. 337.

(iii)

Section 24(1) of the
Charter

[49]

In
    ordering a stay of the charges against Ban for abuse of process, the trial
    judge relied on this courts decision in
R. v. Tran
, 2010 ONCA 471,
    103 O.R. (3d) 131.  He held, correctly, that under s. 24(1) of the
Charter
,
    the court retains discretion to stay proceedings where to do otherwise would
    amount to a judicial condonation of unacceptable practices.  This discretion
    is to be exercised in exceptional circumstances.  It may be exercised even where
    abusive police conduct does not affect trial fairness if the abuse is so
    egregious that the mere fact of going forward in the light of it will be
    offensive.  In those exceptional circumstances, a stay under s. 24(1) is an
    appropriate and just remedy: see
Canada (Minister of Citizenship and
    Immigration) v. Tobiass
, [1997], 3 S.C.R. 391;
R. v.

Regan
.

[50]

Tran
was such a case.  However, the facts pertaining to Ban were far removed from
    those pertaining to Tran.

[51]

Tran
was a case of despicable police brutality.  The trial judge found that the
    police used excessive force, gratuitously beating Tran because he would not make
    a statement after he had voluntarily turned himself in.  The police lied to
    cover up their actions.  They also delayed getting Tran the medical attention
    he needed.  Moreover, the states misconduct did not end there, as the
    offending officers were permitted to assist the Crown in the prosecution of the
    case.  Epstein J.A., who wrote the courts reasons, held that this was one of
    those exceptional or clearest of cases warranting a stay for police misconduct.

[52]

In
    the present case, the police did not use excessive force to arrest Ban.  They
    did not cover up their actions; instead, they reported what had occurred to a
    superior officer and filled out a formal use of force report.  They also arranged
    immediate medical attention for Ban.
Tran
cannot be used to support a
    stay in this case.

[53]

The
    trial judge did not analyze the differences between this case and
Tran
. 
    Instead, after referring to
Tran
, he grounded the stay in the original
    entry into the home, which he found to be unlawful.  For convenience I repeat
    this part of his reasons:

The obligation on the Crown to lead evidence to justify the
    decision [to depart from the knock-and-announce rule] is a prerequisite to a
    finding by the court, if one is to be made, that the departure was necessary. 
    The police did not know what the law was; did not care; and did not comply with
    it.  An occupant of the house received serious, foreseeable injuries.  There is
    nothing unclear about this case.  Anything short of a stay would be an
    expression of approval of the police decision to ignore the legal requirements
    of the execution of the warrant in this manner.

[54]

I
    have already outlined why the trial judge erred in finding that the police
    departed from the knock-and-announce rule.  But even if they did depart from
    the knock-and-announce rule  by, for example, not waiting long enough before
    forcing entry into the home  that departure would hardly be so egregious that
    it would turn this case into one of those exceptional cases requiring a stay. 
    As with Pan, the trial judge erred in principle and exercised his discretion
    unreasonably in staying the charges against Ban.  I would set aside the stay
    and order a new trial for Ban.

(iv)

Other issues

[55]

The
    Crown, quite understandably, raised other concerns about the trial judges
    reasons.  I will deal briefly with three of these concerns.

[56]

First,
    the trial judge relied on his own experience to find that marijuana grow
    operations in the Peel Region did not present a risk of violence:

Whatever may be the case in other jurisdictions, the dozens of
    grow-ops I have dealt with in this jurisdiction by way of pre-trials, pleas,
    trials and preliminary hearings have disclosed no basis whatsoever for a
    generalized concern of a violent response to police in this context.

[57]

I
    agree with the Crown that the trial judges observation amounts to taking
    judicial notice that no risk of violence existed.  A court can take judicial
    notice of a fact in only two circumstances: first, if the fact is so notorious
    and generally accepted that reasonable persons would not debate it; and second,
    if the fact is capable of immediate or accurate demonstration by resort to
    readily accessible sources of undisputed accuracy: see
R. v. Manjra
,
    2009 ONCA 485, 250 O.A.C. 257, at para. 21.  The trial judges observation does
    not meet either criterion for taking judicial notice.

[58]

Second,
    the trial judge discounted virtually all of the police evidence.  I do not find
    it necessary to review his findings because, even accepting them, his stay
    order cannot stand.  However, I should not be taken as agreeing with these
    findings.  As the trial Crown pointed out, during argument the trial judge made
    this telling comment about the officers testimony:

Theyre certainly not going to testify against each other if
    there is any wrong doing and theyre certainly not going to have any memory of
    what occurred if there was wrong doing

This comment may well have affected the trial judges
    assessment of the officers evidence and their credibility.

[59]

Finally,
    although the trial judge stayed the charges against Ban, he stated that if he
    were wrong, there was insufficient evidence of participation to ground a
    conviction".  This statement has no legal effect.  The trial judge did not
    acquit Ban.  He stayed the charges against him.

D.

conclusion

[60]

I would allow the Crowns appeal, set aside the stays of the charges against Pan
  and Ban, and order a new trial for both respondents.

Released:
Sept. 10, 2012                                       John
    Laskin J.A.

JL                                                                     I
    agree K. Feldman J.A.

I
    agree David Watt J.A.


