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John L. Hill |
Leonard had been charged with multiple counts relating to a loaded firearm seized from the trunk of a car that he was driving in the company of three male passengers. The Crown chose to proceed only on one count: possession of a loaded prohibited or restricted firearm without being the holder of an authorization or licence. He was convicted and appealed the conviction.
Leonard’s counsel at trial, Jeffrey Hartman, said the key issue was whether items in the trunk were "readily available" to the driver and passengers. There were two passengers in the back seat, and although the back seats were capable of folding down, the passengers would have had to contort their bodies to fold them. The police and Crown really sought to expand the search power under the Cannabis Control Act (CCA), arguing that the mere presence of folding seats made items in the trunk “readily available.”

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Recognizing that the defence theory of reliance on Charter rights was sound, even though rejected by the trial judge, the defence presented no evidence on the trial proper, made no submissions and invited the trial judge to convict.
Leonard appealed his conviction. Leonard’s appellate counsel, Jeffrey Couse and Jason Dickson, reasserted that two breaches of their client’s Charter rights had been violated: the right to be tried within a reasonable time and the right to be free from unreasonable search and seizure. They argued that the trial judge’s reasons for both Charter applications were insufficient to permit meaningful appellate review. Defence counsel pointed out that the reasons for disposing of the Charter breach claim amounted to simply adopting the Crown’s submissions. Repeating one party’s position as reasons by the court has been frowned upon (Cojocaru v. British Columbia Women’s Hospital and Healthcare, 2013 SCC 30, and Attorney General of Canada v. Ni-Met Resources (2005), 195 C.C.C. (3d) 1).
The defence maintained that the reasons were insufficient because the trial judge failed to make findings of fact on several contested issues. The Crown had advanced various channels to substantiate its argument. Still, the trial judge did not specify which ones he adopted as his reasons. Furthermore, many of the Crown’s arguments were conclusory and even, if adopted, did not amount to sufficient reasons.
The Court of Appeal effectively chastised the trial judge. It acknowledged that poor reasons alone do not justify appellate intervention, but those reasons must make clear what was decided and why. Appellate review is warranted when the reasoning is insufficient (R. v. Sheppard, 2002 SCC 26; R. v. R.E.M., 2008 SCC 51; R. v. G.F., 2021 SCC 20). This was a case where each Charter application raised multiple triable legal and factual issues. Each application required that the trial judge make findings of fact and apply the law on various issues. The trial judge failed to do this. His reasons were what the Appeal Court called “boilerplate adoption of the Crown’s submissions.”
The right to search the trunk under s. 12(3) of the CCA applies only to cannabis “readily available to any person in the vehicle.” The trial judge did not specify or identify the legal analysis that allowed him to determine whether the search was lawful or how the search of the trunk would make the cannabis readily available to the passengers of the sedan-style car that was not a hatchback. A similar lack of factual detail did not allow for an appellate review of why Leonard’s trial was conducted late. Waiver of the s. 11(b) right was not proven, nor was there any calculation of what could be characterized as defence delay. It is not appropriate for the Appeal Court to make factual findings. Nor is the appellate court’s role to “perform its own analysis to resolve issues the trial judge did not adequately address” (Penate v. Martoglio, 2024 ONCA 166).
The trial judge’s insufficient reasons do not meet the standards so admirably handled by the trial judge’s brothers despite the burgeoning caseloads and delays caused by the COVID-19 pandemic. The conviction was set aside, and a new trial was ordered.
The Leonard case is an example of masterful advocacy on the part of the accused’s defence counsel both at trial and on appeal. A well-defined and legally sound defence theory was advanced despite requiring an appeal to secure a just outcome.
More importantly, the Appeal Court reaffirmed that judgments must demonstrate transparency, allowing the public to be assured that justice is done and can be seen to be done.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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