



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hansen, 2018 ONCA 46

DATE: 20180122

DOCKET: C62143

Sharpe, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Hansen

Appellant

Gregory Lafontaine, for the appellant

Randy Schwartz, for the respondent

Heard: December 22, 2017

On appeal from the conviction entered on January 29, 2016
    and the sentence imposed on May 19, 2016 by Justice Catrina D. Braid of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of one count of perjury and two counts of
    attempting to obstruct justice after a trial before a judge of the Superior
    Court of Justice sitting without a jury. The trial judge imposed a sentence of
    imprisonment for five years on each count and directed that the sentences be
    served concurrently.

[2]

The appellant appeals both conviction and sentence.

[3]

At the conclusion of argument, we dismissed both appeals. We promised to
    provide reasons for our decision. These reasons fulfill that promise.

The background facts

[4]

Essential to an understanding of the issues raised in this court is a
    description of the circumstances upon which the convictions are grounded.

The Principals

[5]

During the events that provide the genesis of this prosecution, Robert
    Hansen was a detective constable in the Gangs and Weapons Unit of a police
    force. Among his duties were the investigation of drug, gang and firearms
    offences. Frequently these investigations involved contact with confidential
    informers (CIs).

[6]

In May, 2012 the appellant received information from CIs designated as
    A, B and C. From these sources, he learned about the activities of a suspected
    local drug dealer. The appellant did not meet any of these CIs. He communicated
    with his primary source, C, by text message using a Blackberry smart phone
    supplied by the police force of which he was then a member.

The Case for the Crown

[7]

The case of the Crown consisted mainly of text messages between the
    appellant and Source C during a two-week period in the latter half of May,
    2012. It also included the information to obtain a search warrant (the ITO) under
    s. 11 of the
Controlled Drugs and Substances Act
(the
CDSA)
prepared by the appellant based principally on information received from the
    three CIs. The warrant authorized the search of the residence of Darren Mork
    for cocaine and related drug paraphernalia.

[8]

The Crown alleged that the appellant participated in a plan according to
    which Source C would place a gun in Morks residence, and advise the police
    that he had done so. The police would then obtain and execute a search warrant
    at Morks home and seize the gun. Charges against Mork arising out of the
    execution of the
CDSA
warrant would ensure that Mork was put away
    for some time.

The Text Messages

[9]

Around the middle of May, 2012 Source C sent a text message to the
    appellant about Mork. Source C claimed that Mork, a drug dealer, was fucking
    around with Source A, the girlfriend of Source C. To stop Morks involvement
    with his girlfriend, Source C proposed to set Mork up. The appellant agreed
    that Mork could use some jail time and asked what Source C had in mind.

[10]

Source
    C proposed that he would set Mork up by placing a gun, used in a previous
    shooting, in Morks home. The appellant agreed with the proposal, which he said
    would lock up Mork for several years, but told Source C that it was best that
    he not know all the details of the plan.

[11]

Source
    C also negotiated with the appellant for payment in return for setting up Mork.
    The appellant said that the amount would be difficult to determine without the
    plan being executed, but guessed that the payment could be $1,000 or $1,500.

[12]

In
    several text messages exchanged over the next few days, Source C suggested informing
    on other drug dealers and negotiated for payments of several thousand dollars
    for ratting on them and setting up Mork. Source C reminded the appellant that
    police would get Mork with a gun. The appellant described Mork and another
    suspected drug dealer as good [targets].

[13]

In
    a text on May 23, 2012, Source C said he was angry at his girlfriend and was
    reconsidering his plan to set up Mork and rat out the other alleged drug
    dealers. Source C had previously asked the appellant to help with his drug
    addiction and said he didnt want to disappoint the appellant. In response, the
    appellant encouraged Source C to carry out the plan and pointed out that
    setting up Mork with a gun would be especially helpful. Source C made it
    clear that he would be setting up Mork with a gun that was not his (Source Cs)
    own gun, rather was one he would get from his girlfriends (Source As) father.

[14]

On
    May 24, 2012 Source C told the appellant that he planned to pick up the gun
    from Source As father and go to Morks house to complete a drug deal. While
    there, Source C would plant the gun at Morks house and leave. The appellant
    asked Source C when the mission would be accomplished, explaining that he (the
    appellant) would need to wait until advised by Source C that it went ok.
    Later on May 24, 2012 Source C reported to the appellant that he (Source C) had
    suffered a drug-related seizure and was unable to plant the gun at Morks home
    as planned on that day.

[15]

On
    May 25, 2012 Source C texted the appellant to advise him that he had the gun
    and would get it done that day. About an hour later, Source C advised the
    appellant that he had planted the gun in a secure place where Mork would not
    find it. Source C expressed concern about his fingerprints on the gun, but the
    appellant assured him that he would take care of it.

The ITO

[16]

Less
    than an hour after Source C advised him that and where the gun had been planted
    at Morks house, the appellant submitted an ITO to a justice of the peace for a
    s. 11
CDSA
search warrant for Morks residence. The justice of the peace
    issued the warrant, which authorized a search for cocaine and related drug
    paraphernalia. No warrant was sought to search for and seize the gun Source C
    claimed to have planted in a couch at Morks home.

[17]

In
    the ITO the appellant recounted information he had received from Sources A, B
    and C.

[18]

In
    connection with the handgun at Morks home, the appellant recounted several
    reports from Source C about having heard about, then later seen a handgun, of a
    specific manufacture and model, hidden in the cushions in a sofa in the
    basement of Morks house.

[19]

Absent
    from the ITO was any mention of the origins of the gun at Morks home, more
    specifically, that it had been planted there by Source C with the express
    agreement, if not the urging, of the appellant, so that Mork could be taken out
    of circulation for a significant period of time.

[20]

In
    the ITO, the appellant described Source Cs motivation for informing on Mork as
    being that he was sick of drug dealers taking advantage of others. The
    appellant omitted any reference to the nature of the relationship among Sources
    A and C and Mork. Further, the appellant made no mention of Source Cs specific
animus
towards Mork, his desire for revenge or his financial
    motivation for providing information.

[21]

In
    connection with Source B, the appellant described his motivation as a desire to
    eliminate Mork as competition in the drug trafficking business. What the
    appellant failed to point out was that Source Bs real motive was to provide
    information on those, such as Mork, who had ripped him off in prior drug
    transactions.

[22]

The
    appellant also included in the ITO a claim that Source C had seen plastic wrap
    and scales at Morks home, items commonplace in a drug traffickers tool kit.
    But Source C said nothing about plastic wrap, nor about scales, apart from
    having left a set of his own scales behind at Morks home.

The Execution of the Warrant

[23]

The
CDSA
warrant authorized police to search for and seize cocaine and
    related drug paraphernalia. The warrant contained no mention of a handgun.
    Police found no handgun when they executed the warrant.

The Appellants Explanation

[24]

The
    appellant testified. He offered four principal explanations for the omissions
    and inconsistencies between the information provided by Source C and what he
    included in the ITO.

[25]

First,
    innocent error. The appellant acknowledged that as the affiant in an
ex
    parte
application, he was required to make full, fair and frank disclosure
    of all material facts. He said his mistakes were innocent errors which he
    attributed to rushed preparation and the density and complexity of the text
    messages that he was required to quickly summarize in the ITO.

[26]

Second,
    protecting the confidentiality of Source C. The omission of details about
    planting the gun was necessary, the appellant said, because their inclusion
    could have revealed the identity of Source C. But, as the appellant
    acknowledged in cross-examination at trial, various measures, such a sealing
    order and editing, were available and used here to ensure that Source Cs
    identity was not revealed. The appellant also conceded that many of the details
    provided in the ITO would furnish a basis upon which Source C could be
    identified. He could not explain how omission of the agreement to plant the
    firearm would be any more likely to identify Source C than other details
    already provided.

[27]

Third,
    irrelevance. The appellant claimed that reference to the firearm was
    tangential since he sought and obtained a
CDSA
warrant to search for
    and seize drugs and drug paraphernalia. Yet the ITO included repeated
    references to the handgun at Morks place. Among the references was this in
    paragraph 42:

Disturbing information is included that a handgun is being is [
sic
]
    stored in the basement and there was a suggestion it has already been used at
    least once in a local shooting. Police may well be negligent not to attempt to
    enter and search when firearms are present.

[28]

Fourth,
    uncertainty. The appellant explained that it was not clear to him whether
    Source C was reporting on a gun that Mork had at his house or on a plan to
    plant a gun at Morks house. In cross-examination, however, he acknowledged
    that two days before he completed and swore the ITO he understood that the plan
    was to plant the gun, an understanding that became even more clear the next
    day.

[29]

The
    trial judge rejected the appellants explanations in their entirety.

the appeal from conviction

[30]

The
    overarching submission advanced by the appellant is that the convictions entered
    by the trial judge are unreasonable. The unreasonableness is said to be the
    product of several flaws in the trial judges reasoning. She made palpable and
    overriding errors in making adverse credibility findings in connection with the
    appellants testimony. She erroneously rejected a reasonable interpretation of
    some events in favour of an interpretation adverse to the appellant that was
    not reasonable. She misinterpreted the evidence about the motivation of Source
    C and found guilt established on the third count in the complete absence of
    evidence of an essential element of that offence.

[31]

In
    our view, as we will explain, each of these complaints fails when examined in
    the light of the trial judges reasons as a whole and the overwhelming nature
    of the case for the Crown.

Ground # 1: Adverse Credibility Findings

[32]

The
    appellant acknowledges that the trial judge properly approached her credibility
    findings by referring to the decision in
R. v. W(D)
, [1991] 1 S.C.R.
    742. Further, the appellant accepts that a trial judges findings on
    credibility attract a significant degree of deference on appeal. On the other
    hand, the appellant says, appellate intervention is warranted, as here, where,
    on consideration of all the evidence adduced at trial, the trial judges credibility
    determination cannot reasonably be supported by the evidence or where it
    depends on a misapprehension of evidence on a material issue.

[33]

In
    our view this ground of appeal fails.

[34]

After
    reciting the
W(D)
formula and reiterating the absence of any onus on
    the appellant to establish his innocence, the trial judge rejected the
    appellants testimony as making no sense in light of the text messages and the
    ITO which constituted the case for the Crown. It is well settled that it is open
    to a trial judge to reject the testimony of an accused because of the
    cumulative force of the contrary evidence adduced by the Crown:
R. v. D(J.J.R.),
(2006) 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53.

[35]

In
    her lengthy and thoughtful reasons, the trial judge identified ten aspects of
    the appellants testimony that she found troubling and cumulatively warranted
    its rejection. Each of the reasons were firmly rooted in the evidence and did
    not involve speculation or invoke any prohibited chain of reasoning. The
    reasons are internally consistent and not contradicted by any findings of fact
    made by the trial judge.

Ground # 2: Unreasonableness of Conviction of Perjury

[36]

The
    perjury count involved an allegation that the appellant swore falsely in the
    ITO that Source C had told him that he (Source C) had heard that Mork had a
    handgun used in a prior shooting hidden in his residence.

[37]

The
    appellant says that the conviction on this count is unreasonable because the
    trial judge wrongly rejected a reasonable interpretation of the texts of May
    16, 2012 offered by the appellant in his testimony at trial. That
    interpretation was that Source Cs text supported the appellants conclusion
    that the gun was already in Morks house.

[38]

It
    is a commonplace that, as the trier of fact, it was open to the trial judge to
    draw inferences from the evidence adduced at trial. Where an item of evidence
    may give rise to more than one reasonable inference, a trial judge does not act
    unreasonably by drawing one available inference rather than another. This is
    what trial judges do. That an appellant disagrees with an inference drawn by a
    trial judge from the field of reasonable inferences available on the evidence
    adduced at trial, does not, on its own, establish that the verdict is
    unreasonable.

[39]

More
    to the point, however, is that irrespective of the inference drawn from the May
    16, 2012 text sent by Source C, the appellant acknowledged that, at the very
    least on May 24, 2012, the day before completing, swearing and presenting the
    ITO to the justice of the peace, he knew that Source C was going to plant the
    gun at Morks house. With this knowledge, the inference is irresistible that he
    intentionally provided false information in the ITO and that he did so with the
    intention of misleading the issuing justice of the peace.

Ground # 3: Unreasonableness of Conviction of Obstruct Justice (Count 2)

[40]

The
    second count of the indictment alleged that the appellant attempted to obstruct
    justice by causing the justice of the peace to issue the
CDSA
search
    warrant on the basis of the appellants ITO that contained false statements,
    material omissions and misleading information.

[41]

The
    appellant contends that the finding of guilt was coloured by the trial judges
    flawed assessment of the appellants credibility; her misapprehension of the
    evidence about the provenance of the gun said be in Morks residence and her
    defective rejection of the appellants explanation about the scales and plastic
    wrap at Morks house.

[42]

We
    reject this claim of unreasonableness.

[43]

First,
    we have already repudiated the appellants submission that the trial judges
    credibility analysis was flawed, a conclusion that removes it as a factor in the
    unreasonable verdict complaint about count two.

[44]

Second,
    a conviction on count two follows inevitably from our determination that the
    conviction of perjury on count one stands. Submission of knowingly false ITO a
    with intent to mislead a justice to issue a search warrant plainly amounts to a
    wilful attempt to obstruct, pervert or defeat the course of justice under s.
    139(2) of the
Criminal Code
.

[45]

Third,
    evidence of additional false and misleading statements in the ITO established
    the appellants guilt on count two. The trial judge focused on deliberately
    embellished and intentionally omitted and misleading facts about:

i.

planting the gun and setting up Mork;

ii.

the motivation of Source C;

iii.

the motivation of Source B; and

iv.

the presence of scales and plastic wrap.

Her conclusions on these issues were not cumbered by
    legal error or misapprehension or failure to consider relevant evidence and are
    plainly reasonable.

Ground # 4: Unreasonableness of Conviction of Obstruct Justice (Count 3)

[46]

The
    third count of the indictment alleged that the appellant attempted to obstruct
    justice by encouraging Source C to place a gun in Morks home with intent that
    it would be used as evidence in a judicial proceeding.

[47]

The
    appellant says that the conviction on count three was unreasonable because it
    was made in the absence of any evidence that the appellant intended that the
    gun would be used as evidence in any subsequent proceedings; in the face of
    evidence that the appellants purpose was not to charge Mork for possession of
    the gun, rather to get the gun off the street; and without considering two
    earlier text messages that tended to support the appellants claim that he
    considered the assistance Source C provided about Mork separate from the
    assistance Source C gave in surrendering the gun.

[48]

We
    declined to give effect to this ground of appeal.

[49]

In
    our view, the text message exchange on May 23, 2012, two days before completion
    and submission of the ITO, provides incontrovertible proof of the appellants
    guilt on this count. Source C was getting cold feet about planting the gun. His
    motive  to gain revenge on Mork for fucking around with Source A  was
    fading because of a falling out Source C had with Source A. The appellant
    pointed out that without Source Cs help, Mork would not get done. The
    appellant explained that Source Cs help would help tonsespecially the heat.
    By encouraging Source C to carry out the plan, the appellant abetted Source Cs
    proposed offence. Whether the appellant planned to use the gun as evidence in
    the prosecution of Mork would not seem an essential element of the offence, in
    light of the appellants plan to lock up Mork for several years.

[50]

In
    the result, the appeal from conviction is dismissed.

the appeal from sentence

[51]

The
    appellant also appeals the sentence of five years imposed by the trial judge on
    each count, sentences the trial judge directed were to be served concurrently,
    one with the others.

[52]

At
    trial, the Crown sought a penitentiary sentence of six years, the defence a
    sentence of 14 months.

[53]

In
    this court, the appellant contends that the trial judge erred in imposing a
    sentence that was unduly harsh, well in excess of any sentence justified by the
    limited sentencing precedents available. The trial judges sentencing analysis,
    according to the appellant, was further flawed by inconsistent findings about
    aggravating factors and misapprehensions of relevant evidence.

[54]

We
    are not persuaded that there is any basis upon which we are entitled to interfere
    with the sentence imposed at trial.

[55]

The
    offence of perjury, for that matter, the crime of attempting to obstruct
    justice, strike at the very soul of the judicial system. Each rents the fibre
    of the intricate scheme that we as a society have designed to determine whether
    the guilt of one accused of crime has been proven beyond a reasonable doubt.
    Each offence is easy to commit. Both are hard to prove. Those found to have
    committed either must expect severe punishment.

[56]

Police
    officers occupy a special position of trust in the community. It is all the
    more so in the criminal justice system. As justice system participants, they owe
    a duty to the public to uphold the values of the criminal justice system. They
    have a duty to investigate crime in accordance with the law.

[57]

The
    paramount sentencing objectives in this case are denunciation and deterrence.
    Neither the jeopardy of the loss of employment nor the likelihood of and
    deterrence, much less accord appropriate weight to the aggravating factor of
    breach of trust.

[58]

The
    sentence imposed in this case is substantial. This is as it should be. It
    represents an appropriate application of the governing objectives and
    principles of sentencing, including the fundamental principle that the sentence
    be proportionate to the gravity of the offence and the degree of responsibility
    of the offender.

[59]

In
    the result, leave to appeal sentence is granted, but the appeal from sentence
    is dismissed.

Robert J. Sharpe J.A.

David Watt J.A.

Lois B. Roberts J.A.


