This week’s top three summaries: R v Tessier, 2020 ABCA 289, R v Abdulahi-Sabet, 2020 BCCA 213, and R v AM, 2020 ONSC 4541.
R v Tessier, 2020 ABCA 289
[August 4, 2020] Voluntariness - Importance of the Police Caution in the Overall Analysis - Section 10(b) - R v Grant Remains Overarching Authority over Police Station Interviews [Frederica Schutz, Ritu Khullar, and Jolaine Antonio JJ.A.]
AUTHOR’S NOTE: Most voluntariness cases turn on the concepts of offers of advantage or threats of negative outcomes. Occasionally, cases turn on oppressive circumstances and police trickery. Rarely, cases turn on the concept of the operating mind and where they do, it is almost always debating the effects of mental illness or extreme intoxication on the ability of the accused to know that what they are saying can be used against them in a court proceeding. Here, the voluntariness question turned exclusively on the lack of a police caution in a police station interview of a person police denied was a suspect. The trial judge's failure to focus on the effect of a lack of a police caution on the criminally inexperienced accused caused the matter to be overturned on appeal despite no noted issues with threats, offers of advantage, oppressive circumstances, or police trickery (as that concept is described in Oickle). The case is important for counsel contending with police interviews where no Charter rights or caution are given to someone and police embark on a series of questions designed to incriminate the accused (despite them claiming he/she is not a suspect). The ABCA says when they proceed to ask these questions, they take on the risk of having any statement obtained in this fashion excluded by the courts no matter what the status of the interviewed person. The question is, what is the effect on the interviewee's meaningful choice to speak or maintain their silence? Their will need not be overborne for the statement to be ruled involuntary.
Overview
[1] Mr Tessier appeals his conviction of first degree murder by a jury by challenging the trial judge’s rulings on two voir dire applications.
[2] The victim’s body was found on March 16, 2007 in a ditch near Carstairs with trauma to his head, and blood on his shoulders. Near his body, there were tire tracks, footprints, blood spatter, and two cigarette butts. It was later established that he died from gunshot wounds to the head. On March 17, 2007, the day after the body was found, Mr Tessier was interviewed; he was charged eight years later, in 2015. The trial was held in 2018.
[3] One voir dire relates to the trial judge’s decision to admit statements made by Mr Tessier during two police interviews on March 17, 2007, during the early stages of the investigation: R v Tessier, 2018 ABQB 387 (Reasons). Mr Tessier argues that the statements were not voluntary, so should be excluded for breach of the common law confessions rule and a violation of his right to remain silent under s 7 of the Charter. He also argues that he was detained when he made the statements and that police breached his s 10(b) Charter right by failing to inform him of his right to consult counsel. He asks this Court to exclude the statements for breach of s 10(b) as well.
Pertinent Facts
[7] On March 17, 2007, Mr Tessier lived in Calgary but was visiting friends in Didsbury. He received two or three calls from the RCMP that morning to arrange to question him. He advised them he was in Didsbury, and was asked to come to the RCMP detachment for questioning. His friend drove him to the detachment and waited for him. He was met by Sgt White who escorted him to an interview room for an audio and video recorded interview starting about 12:55 pm, lasting until 2:40 pm. Mr Tessier was not searched at any time. The interview room was small, had a table and two chairs. The door was closed but not locked.
[8] At no time before or during this initial interview did police caution Mr Tessier that he did not have to say anything and that his statements might be used against him, or that he had the right to consult a lawyer. The trial judge accepted the evidence of Sgt White that Mr Tessier was not cautioned because he was not a suspect. Rather, according to Sgt White the purpose of the interview was to obtain a biography of the victim, as Sgt White had been informed that Mr Tessier was a good friend and business associate of the victim. Sgt White explained this purpose at the beginning of the interview.
[9] After initially asking general background questions, Sgt White asked several questions suggesting that Mr Tessier was involved in the victim’s death. For instance, he suggested that Mr Tessier was “mixed up” or ‘bothered” so he should “tell the truth”; asked if there was any reason his DNA might be near the crime scene; asked what should happen to the person who caused the death of the victim; asked if Mr Tessier thought it was planned: asked him if killed the victim: asked if he could prove he did not kill him.
[11] Sgt White said he would step out to obtain a DNA kit, and Mr Tessier asked whether he could go out for a smoke. Sgt White replied, “Sure, you can.”; Mr Tessier left the interview room and the RCMP detachment to have a cigarette outside. When they both returned to the interview room, Mr Tessier declined to provide a DNA sample indicating that he had spoken to his friend. He said he didn’t know what was going on and didn’t want to be ‘painted into a corner”. As far as he knew. ‘I’m the only person that you got and that’s not good this is bothering me”.
[12] Then Sgt White asked to look at his shoe. Mr Tessier complied and let Sgt White take a photocopy of the bottom of the shoe.
[15] At 5:10 pm. Mr Tessier showed up at the RCMP detachment in Didsbury asking to speak to Sgt White as his calls had not been returned. No one at the RCMP detachment initiated this second interview, which was audio recorded.
[16] Mr Tessier told Sgt White that he had forgotten to tell him that he had retrieved his gun from a shooting range the day before and stored it in its case in his bedroom closet. The victim had been staying with Mr Tessier for the few days before he died and had occupied the bedroom. Mr Tessier asked Sgt White to accompany him to his apartment in Calgary to confirm the gun was still there. As the trial judge noted, at this point, Sgt White had not informed Mr Tessier that the victim had been shot in the head, and may not even have known that fact himself.
[17] Sgt White and another officer agreed to follow Mr Tessier to Calgary. Shortly after leaving, Mr Tessier pulled over saying he was not able to drive and asked Sgt White to drive his truck. Sgt White testified that Mr Tessier seemed nervous and agitated. After patting down Mr Tessier to confirm he had no weapons, Sgt White got in the truck and drove. When they got to Mr Tessier’ s apartment and checked the closet, the gun was missing from its case. According to Sgt White, Mr Tessier appeared “shocked”, and said that the victim must have taken the gun from its case before he left.
[18] It was at this point that Sgt White “Chartered and cautioned” Mr Tessier, which included advising him of his right to counsel. He was advised, incorrectly, that only statements he made after the caution could be used against him in court. Mr Tessier continued to speak to the officers.
[19] It bears noting that at no time did Mr Tessier confess to the murder. His counsel sought to exclude all of his statements during the first and second interviews, which contained some exculpatory and inculpatory material and some which potentially cast doubt on Mr Tessier’s credibility. The Crown did not seek to enter any of the statement made after the incorrect caution.
Voluntariness Principles
[23] If a trial judge properly considers all the relevant circumstances, then a finding of voluntariness is a factual one, which should only be overturned for some palpable and overriding error which affected the trial judge’s assessment of the facts: R v Oickle, 2000 SCC 38 at para 71; R v SEV, 2009 ABCA 108 at para 17. However, if all of the relevant circumstances are not considered, the Court owes no deference to the trial judge’s conclusion on voluntariness.
[24] In Canada, no one is obliged to provide information to the police or respond to questioning, unless there is a legal requirement to do so. This is the effect of the common law right to silence: R v Singh, 2007 SCC 48 at para 27. This does not mean that the police cannot ask people questions. Asking questions is an integral tool of police investigations. And people do answer the questions in all kinds of different contexts. But people must have a “meaningful choice” about whether or not to speak to state authorities: Singh at para 35.
[25] A statement given to the police, or other person in authority, is presumptively inadmissible at a criminal trial unless the Crown can prove beyond a reasonable doubt that the statement was given voluntarily. This is known as the common law confessions rule: Oickle. The cases refer to two main rationales for this rule. The first is to ensure the reliability of the statement. Involuntary statements are more likely to be unreliable: Oickle at para 32. The second rationale is to ensure trial fairness and the accused’s right to remain silent when questioned by police and in the adversarial process of the trial: Oickle at para 69; Singh at para 35; R v Patterson, 2017 SCC 15 at para 15; R v MR 2019 ABQB 588 at paras 45-49.
[29] However, the jurisprudence came to recognize another element: the perspective of the person making the statement, and their freedom to choose to give a statement to the police. Or, put another way, a person’s right to remain silent: R v Hebert, 1990 CanLII 118 (SCC), [1990] 2 SCR 151; Singh at paras 27-37. As the Supreme Court explained “[t]his approach is most evident in the so-called ‘operating mind’ doctrine”: Oickle at para 26. Does the person making the statement understand what they are saying to the police or person in authority, and that it can be used against the person to their detriment?: R v Whittle, 1994 CanLII 55 (SCC), [1994] 2 SCR 914 at 936. The operating mind doctrine recognizes at minimum, that a person “must possess the mental capacity to make an active choice”: Hebert at p 172. As will be discussed further below, an operating mind is not the only mental element required for a statement to be voluntary.
[31] The contemporary confessions rule is sometimes summarized as consideration of these four factors: threats or promises; oppression; operating mind; and police trickery. However, as is made clear in Oickle, these factors are not necessarily the only ones to consider. The analysis is contextual and case-specific. “A court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all aspects of the rule”: Oickle at para 71; see also para 41; Singh at para 35. The underlying values protected by the confessions rule – reliability of statements, trial fairness, and meaningful choice about whether to respond to police inquiries – must be kept in mind in making this determination.
A Meaningful Choice and the Police Caution
[32] Voluntariness requires a person to possess a meaningful choice to speak to the police or person in authority. But what does this mean?
[33] The confessions rule is a manifestation of the principle against self-incrimination, which is a general organizing principle of criminal law: Singh at para 21. Put another way, the voluntariness of a statement is inextricably tied up with the right to remain silent and not incriminate him or herself: Hebert at p 173; Singh at paras 30-31, 34-35. This component of the voluntariness rule is reflected in the police caution, which informs the interviewee of his or her right to remain silent, and that if he or she chooses to speak, anything said may be used by the police to his or her detriment. Even if someone does not receive a caution, if they are advised of their right to counsel, and contact counsel, this can help to fill the informational deficit left by the absence of a caution: Singh at para 31. Conversely, where the interviewee has not consulted counsel, the caution “becomes all the more important as a factor in answering the ultimate question of voluntariness”. Singh at para 33.
[34] At one point in Canadian legal history, the absence of a police caution might have been determinative of the question of voluntariness; however, since Boudreau v The King, 1949 CanLII 26 (SCC), [1949] SCR 262 it has not been. Boudreau stands for the proposition that in many cases the absence or presence of a caution will still be an important factor, thereby foreshadowing the contextual approach endorsed in Oickle.
[35] The impact of the caution, or lack of one, must be considered from the perspective of the person giving the statement. A modified objective test is to be applied to determine if the accused person was able to make a voluntary decision – “a meaningful choice” – to speak to the police.
On the question of voluntariness…the focus is on the conduct of the police and its effect on the suspect’s ability to exercise his or her free will. The test is an objective one. However, the individual characteristics of the accused are obviously relevant considerations in applying this objective test
Singh at para 36.
[36] The context, including the character and personality of the appellant and any experience he may have had with the criminal justice system, is relevant: R v Engel,2016 ABCA 48 at para 17.
[37] When no caution has been given, a court must make a determination whether the person making the statement understood they did not have to say anything, and understood that if they responded to questions, their answers could be used against them.
Source of Confusion for Police and Advice About When to Caution
[40] In an attempt to offer guidance to police, some courts have suggested as a rule of thumb that police should administer a caution when they consider the interviewee a suspect or when they would not permit her to leave: Singh at para 32. In theory, this rule of thumb may pre-empt or foreclose any argument that the interviewee did not have a meaningful choice between speaking and staying silent because she did not know that she could remain silent or that her statements could be used against her.
[42] The proposition that the level of police suspicion toward an interviewee is not determinative of the voluntariness of a statement is clearly articulated in R v Pearson,2017 ONCA 389 at para 19:
… whether or not the appellant was a suspect, the applicable appellate authority makes clear that, although the absence of a caution is a factor to be considered on the voluntariness inquiry, it is not determinative: R. v. Singh, 2007 SCC 48, [2007] 2 S.C.R. 405, at para. 31. This proposition applies regardless of whether the police do or ought to regard the person being questioned as a suspect. … [I]n R. v. Bottineau, 2011 ONCA 194, 269 C.C.C. (3d) 227 … [t]his court wrote, at para. 88:
We do not think much turns, in these circumstances, on whether N.K. was a “suspect” or someone more benignly viewed by the police. Even where a person is a suspect, the absence of the standard caution is only one factor to be considered in the voluntariness analysis – just as the presence of such a caution does not automatically lead to the conclusion that a statement is voluntary. As the trial judge noted, “[h]ard and fast rules are incapable of accounting for the myriad circumstances that may vitiate voluntariness,” and all the circumstances must be scrutinized carefully: see R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 47 and 71. [Emphasis added.]
[43] Another relevant circumstance is the nature of the questions being asked, though there is no bright-line rule that police must administer a caution before asking questions, even pointed ones: R v Peterson (DC), 2013 MBCA 104 at para 52. However, if an officer expressly seeks self-incriminating information from an interviewee without administering a caution, he or she knowingly takes on the risk of receiving it. An increased risk of self-incrimination may, in the right circumstances, increase the interviewee’s need for the informational protection of a caution.
[44] The nature of police questioning and the interviewee’s status as a suspect might change throughout the interaction, potentially triggering the need for a mid-stream caution. As always, no one factor is determinative. The advice given in Singh and other cases about when police should administer a caution is just that – advice. Whether police suspect an interviewee of having committed a crime, or ask her pointed questions, is not determinative of the voluntariness of the individual’s statement.
Application to the Facts
[46] The trial judge wrote extensive reasons on the voir dire about the admissibility of Mr Tessier’s He quoted the relevant cases, but took from the cases an impoverished understanding of the modern confessions rule. The trial judge focused his analysis on the four factors identified in Oickle, using them as a checklist but failing to address the key issue in this case: did Mr Tessier make a meaningful choice to speak to the police? Did Mr Tessier understand that what he said to the police could be used against him, and that he was not obliged to say anything?
[48] ... The trial judge’s handling of the operating mind analysis illustrates his approach of fitting the facts into the four Oickle factors, focusing on reliability, rather than considering these factors as part of the overall contextual, case specific approach.
[50] The concept of operating mind, while perhaps not nuanced, encompasses more than the trial judge suggested. Although the trial judge quoted Whittle in his Reasons, he failed to apply what it said about an operating mind:
The operating mind test, therefore requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. Indeed, it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability.Whittle at 939, cited in Reasons at para 38; emphasis added in the Reasons.[51] Whittle establishes the level of cognitive capacity required for an operating mind; it does not address what factors to consider in deciding whether someone made a meaningful choice.
[52] The trial judge was dismissive about whether Mr Tessier had a meaningful choice to speak to the police, or remain silent. He rejected the statement of Watt J (as he was then) in Worrall at para 106, that “voluntariness implies an awareness about what is at stake in speaking to persons in authority, or declining to assist them”. We conclude that the trial judge erred in determining Watt J’s understanding of voluntariness went beyond what Whittle and Singh require.
[53] In Worrall, Watt J correctly stated at para 94 that determining “whether something said to persons in authority by one later accused of crime was voluntary requires consideration of all the circumstances in which the accused person spoke”. (For context-specific reasons various cases have stated the voluntariness test with reference to a “suspect” or an “accused”, but the confessions rule does not apply only on detention or arrest.) In that case, the voluntariness of Mr Worrall’s statements turned on whether he knew what was “at stake” when he spoke to the police. At the time he made the impugned statements, Mr Worrall had not been advised that he was not required to answer police questions, or that anything he did say would be taken down and could be used in evidence against him. The “informational deficit” left the trial judge with a reasonable doubt about whether Mr Worrall knew what was at stake when he spoke to the police.
[54]We endorse the analysis in Worrall and find the trial judge erred in rejecting it for purported inconsistency with Whittle and Singh. Neither case stands for the proposition that a statement can be voluntary if a person who made the statement had minimal cognitive ability. Minimal cognitive ability is a necessary pre-condition to voluntariness, but not a sufficient one. Mr Tessier’s cognitive ability was never in issue. The trial judge found that he was a 40-year-old, employed, with a certain level of confidence and intelligence: Reasons at para 87. But that finding does not conclude the analysis on voluntariness because it does not address whether he made a meaningful choice to speak to the police knowing that he was not required to answer police questions, or that anything he did say would be taken down and could be used in evidence.
[55] Instead, the trial judge’s analysis focused on whether it was reasonable for the police not to provide a caution. In concluding that the police approach was reasonable, the trial judge accepted police evidence that “the investigation was in its early stages when Staff Sgt White interviewed Mr Tessier, and the RCMP had not yet determined who might be persons of interest, or even suspects”: Reasons at para 42. In effect, he found that because Sgt White did not subjectively perceive Mr Tessier as a suspect, he was not required to give a caution, and therefore the absence of the caution did not impact voluntariness. This analysis reveals legal error. [Author's Emphasis] [56] The trial judge erred by elevating the “suspect” rule of thumb to a legal test. The question before him was not whether the police needed to administer a caution. It was whether Mr Tessier spoke to police voluntarily, encompassing an implied “awareness about what is at stake in speaking to persons in authority, or declining to assist them”: Worrall at para 106. While the conduct of the police is part of the analysis, the trial judge failed to consider the perspective of Mr Tessier and whether the Crown had proven beyond a reasonable doubt that he was able to make a meaningful choice to speak to the police in the absence of a police caution. The threshold is high because of the important values at stake.
[57] The trial judge did point to certain evidence in support of his conclusion that the statement was voluntary. First, he noted that at the end of the first statement, Mr Tessier asked if he could ride with the police officer in his truck, instead of leaving the police station with the friend who brought him. The trial judge observed that “[t]his is not a sign of someone whose will has been broken”: Reasons at para 52. Again, the trial judge posed the wrong question. The test for meaningful choice is not an unbroken will. It is a deeper, contextual analysis. [Author's Emphasis] [59] Several Canadian decisions have held that police statements made before an accused was detained and without a police caution were nevertheless voluntary: R v Pepping, 2016 ONCA 809 at paras 4-6; R v Boothe, 2016 ONCA 987 at paras 18-21; R v Blackmore, 2017 BCSC 2682 at paras 106-107. In those cases, the courts found the statements voluntary despite the absence of a caution because the defendants knew they did not have to answer police questions and that their statements might be used to prosecute them for an offence. In other words, the defendants already knew the bulk of the information conveyed by a normal police caution.
[60] In light of the reviewable errors noted above, a new trial is required to consider whether, in the absence of a caution, Mr Tessier made a meaningful choice to speak to the police, as that concept is properly understood. As indicated, it is always a case-specific, contextual analysis.
Section 10(b) and Detention
[62] The appellant argues that he was detained during the first and second interviews and police did not inform him of his right to consult counsel and did not provide a reasonable opportunity for him to do so, contrary to s 10(b) of the Charter. This argument turns on the meaning of detention as developed under ss 9 and 10 of the Charter.
[63] Mr Tessier was not legally detained or physically restrained in the interview room. The question is whether he was psychologically detained, as recently explained in R v Le, 2019 SCC 34 at para 26:
Even, therefore, absent a legal obligation to comply with a police demand or direction, and even absent physical restraint by the state, a detention exists in situations where a reasonable person in the accused’s shoes would feel obligated to comply with a police direction or demand and that they are not free to leave. Most citizens, after all, will not precisely know the limits of police authority and may, depending on the circumstances, perceive even a routine interaction with the police as demanding a sense of obligation to comply with every request [cites omitted].
[64] Not every police interaction with a citizen is a detention; significant physical or psychological restraint is required. “In determining when this line is crossed (i.e. the point of detention, for the purposes of ss 9 and 10 of the Charter) it is essential to consider all of the circumstances of the police encounter. Section 9 requires an assessment of the encounter as a whole and not a frame-by-frame dissection as the encounter unfolds”: Le at para 27.
[68] It would be an error to focus the analysis solely on the police perspective: “Although the perceptions of the police may be relevant to the assessment of whether an accused is detained, they are not decisive”: R v Johns, [1998] OJ No 445 (ONCA) at para 27.
[69] Rather, the test to be applied in determining whether a detention exists is as articulated in Grant, and confirmed in Le. Le was released after the trial judge issued his Reasons; thus, he did not have the benefit of the Le analysis. We conclude that it is not necessarily an error for a trial judge to consider the factors outlined in Seagull to assist in a contextual analysis, provided full consideration is given to the Grant factors in answering the ultimate question posed in Grant at para 31: would the police conduct cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction?
R v Abdulahi-Sabet, 2020 BCCA 213
[July 3, 2020] Restitution Orders - General Principles and the Principle of Totality [Reasons by Madam Justice Dickson with Harris, and DeWitt JJ.A. concurring]
AUTHOR’S NOTE: A restitution order should not be an afterthought in sentencing. It can be a significant punishment and must be taking into account in addressing the totality principle in sentencing. Here, adding a recitation of approximately, $37,000 to a gaol sentence of 8 months was too severe. The decision provides a good overview of the principles involved in determining an appropriate restitution value.
Pertinent Facts
[1] In June of 2016, the appellant, Mehdi Abdulahi-Sabet, attended several dealerships in the Lower Mainland with his friend, Tony Moeinian, and acquired new vehicles and a boat by providing false information to obtain financing. The total value of the property they acquired was $715,756.67. Although it was all recovered, the property depreciated in value when the vendors resold it. The financial institutions that provided the financing for the fraudulent acquisitions sustained a cumulative loss of $142,933.26.
[2] Mr. Moeinian was the mastermind and leader of the operation. Mr. Abdulahi-Sabet was a junior partner who acted on Mr. Moeinian’s directions. In each case, Mr. Abdulahi-Sabet applied for vehicle financing using false information and false documentation, such as false employment verification, false pay stubs and false information relating to property ownership. In many cases, Mr. Moeinian directed Mr. Abdulahi-Sabet on how to complete the applications, did the majority of the talking during negotiations and drove the vehicles off the lot.
[3] ... For the transactions in which Mr. Abdulahi-Sabet participated, Mr. Moeinian was sentenced to two years’ imprisonment, a restitution order of $35,607.09 in favour of one of the victims, the Toronto-Dominion Bank, and a victim fine surcharge of $200.
[4] On August 9, 2019, Mr. Abdulahi-Sabet pleaded guilty to a single count of fraud in respect of the acts he committed with Mr. Moeinian. Crown counsel sought a sentence of 20 months’ imprisonment, a restitution order of $142,933.26 and a DNA order. He advised the sentencing judge that the $35,607.09 restitution order made in Mr. Moeinian’s case corresponded to the loss of the Toronto-Dominion Bank and could not explain why Mr. Moeinian was not ordered to pay restitution in connection with the other victims’ losses. Crown counsel conceded that a restitution order was discretionary and that Mr. Abdulahi-Sabet’s ability to pay was a relevant factor to be taken into account.
[8] On appeal, Mr. Abdulahi-Sabet contends that the sentencing judge erred in principle in imposing the restitution order. In his submission, she failed to explain the basis for the order and failed to account for the differing role played by Mr. Abdulahi-Sabet to ensure that restitution was proportionate to his degree of responsibility, which errors had an impact on the amount of restitution she imposed. He asks that we reduce that amount to $10,000 with seven years to pay, which he says would be fit bearing in mind his lesser role, his limited financial means and the severely punitive nature of the custodial sentence.
Principles in Imposing a Restitution Order
[10] Sentencing is a highly individualized process. Sentencing judges are in the best position to determine a just and appropriate sentence, having regard to all the circumstances, and this court must give them wide latitude on review: R. v. Lacasse, 2015 SCC 64 at para. 39; R. v. Forner, 2020 BCCA 103 at para. 18. Appellate intervention will only be warranted if a sentence is i) demonstrably unfit or ii) based on error of law, error in principle, failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor that has an impact on the sentence: R. v. Friesen, 2020 SCC 9 at para. 26. As with other aspects of a sentence, this deferential standard applies to a decision to order restitution: R. v. Nanos, 2013 BCCA 339 at para. 13.
[12] Pursuant to s. 738(1) of the Criminal Code, where an offender is convicted or discharged of an offence, in addition to any other measure imposed, the court may make a discretionary restitution order. Such orders are a part of the punishment and should be made with caution and restraint. They should also be made bearing in mind the principle of totality, not as a “mechanical afterthought”. As Justice Weiler explained in R. v. Castro, 2010 ONCA 718 “[c]are must be taken not to simply add a restitution order to a sentence of imprisonment which, in itself, is a fit punishment for the crime, as this can amount to excessive punishment and offend the totality principle”: at para. 23; see also R. v. Robertson, 2020 ONCA 367 at paras. 6–7; R. v. Fast‑Carlson, 2015 SKCA 86 at para. 11.
[13] A restitution order survives any bankruptcy, is there for life and should not undermine an offender’s prospects for rehabilitation. For this reason, an offender’s past and future ability to make restitution is an important factor to be weighed and considered, not merely noted, by a sentencing judge: Robertson at para. 8; Fast‑Carlson at paras. 17–19. The shorter a custodial sentence, the more likely it will be that a manageable restitution order will be appropriate. However, as the period of imprisonment becomes longer, a restitution order may become increasingly futile or result in an excessive sentence: Nanos at para. 14; Fast‑Carlson at para. 11.
[14] Nevertheless, where the offence in question involves a breach of trust or is theft‑related and stolen money is unaccounted for, the fact that an offender has limited ability to pay restitution will be given little weight. A breach of trust is a significantly aggravating factor and offenders should be deprived of ill‑gotten gains: Nanos at para. 17; Fast‑Carlson at paras. 20–21. Accordingly, the determination of what happened to the money is an important consideration in deciding whether and in what amount a restitution order should be made: R. v. Solleveld, 2014 ONCA 418 at para. 44.
[16] In Nanos, Justice Bennett provided a comprehensive review of the principles that guide the imposition of restitution orders:
[14] As a restitution order is part of the sentence, it should not be a “mechanical afterthought” imposed after the sentence is fixed, as it may result in a sentence that is excessive (R. v. Castro, 2010 ONCA 718 at para. 23; R. v. Eizenga, 2011 ONCA 113 at para. 93, citing R. v. Siemans (1999), 136 C.C.C. (3d) at para. 10 (Man. C.A.)).[15] In Castro, at paras. 24-25, the Ontario Court of Appeal recently affirmed the non-exhaustive list of considerations derived by Mr. Justice Labrosse in R. v. Devgan (1999), 1999 CanLII 2412 (ON CA), 136 C.C.C. (3d) 238 at para. 26 (Ont. C.A.):
In [R. v. Zelensky, 1978 CanLII 8 (SCC), [1978] 2 S.C.R. 940,] Laskin C.J. identified certain objectives and factors that relate to the application of s. 725(1) [now s. 738.1]. These considerations have been expanded upon in subsequent cases. Below, I have consolidated these objectives and factors, all of which are relevant to the issue of what constitutes a proper exercise of discretion for the purpose of s. 725(1) [s. 738.1].
1. An order for compensation should be made with restraint and caution;
2. The concept of compensation is essential to the sentencing process:
(i) it emphasizes the sanction imposed upon the offender;
(ii) it makes the accused responsible for making restitution to the victim;
(iii) it prevents the accused from profiting from crime; and
(iv) it provides a convenient, rapid and inexpensive means of recovery for the victim;
3. A sentencing judge should consider:
(i) the purpose of the aggrieved person in invoking s. 725(1);
(ii) whether civil proceedings have been initiated and are being pursued; and
(iii) the means of the offender.
4. A compensation order should not be used as a substitute for civil proceedings. Parliament did not intend that compensation orders would displace the civil remedies necessary to ensure full compensation to victims.
5. A compensation order is not the appropriate mechanism to unravel involved commercial transactions;
6. A compensation order should not be granted when it would require the criminal court to interpret written documents to determine the amount of money sought through the order. The loss should be capable of ready calculation.
7. A compensation order should not be granted if the effect of provincial legislation would have to be considered in order to determine what order should be made;
8. Any serious contest on legal or factual issues should signal a denial of recourse to an order;
9. Double recovery can be prevented by the jurisdiction of the civil courts to require proper accounting of all sums recovered; and
10. A compensation order may be appropriate where a related civil judgment has been rendered unenforceable as a result of bankruptcy.
[25] As support for these factors, Labrosse J.A. cited Zelensky at pp. 960-64; R. v. Fitzgibbon, 1990 CanLII 102 (SCC), [1990] 1 S.C.R. 1005, at pp. 1012-14; London Life Insurance Co. v. Zavitz, (1992), 1992 CanLII 1503 (BC CA), 12 C.R. (4th) 267 (B.C.C.A.), at p. 270; R. v. Scherer, (1984), 1984 CanLII 3594 (ON CA), 16 C.C.C. (3d) 30 (Ont. C.A.), at pp. 37-38; R. v. Salituro, (1990), 1990 CanLII 10984 (ON CA), 56 C.C.C. (3d) 350 (Ont. C.A.), at pp. 372-73; R. v. Horne, (1996), 1996 CanLII 11971 (ON SC), 34 O.R. (3d) 142 (Gen. Div.), at pp. 148-49; and R. v. Carter (1990), 9 C.C.L.S. 69 (Ont. C.J. (Gen. Div.)), at pp. 75-76.
[16] These factors are completely consistent with the law in this province: R. v. Yates, 2002 BCCA 583.
[17] The case law is uniform on the consideration of restitution orders when the offences involve a breach of trust or other theft-related cases when the stolen money is unaccounted for or not accounted for adequately. In such a case, the fact that an offender has little or even no ability to pay the restitution order will be given little weight, as one of the principles behind the legislation is that an accused should be deprived of “the fruits of his crime”. The Law Reform Commission of Canada Working Paper 5, Restitution and Compensation (Ottawa: Information Canada, 1974), cited with approval in Zelensky at 952-953; Castro at para. 34; see also R. v. Fitzgibbon, 1990 CanLII 102 (SCC), [1990] 1 S.C.R. 1005 at 1014; Yates.
[18] In Castro, Madam Justice Weiler considered the phrase in Zelensky that a restitution order should be imposed with “restraint and caution”. This phrase has sometimes been employed to argue that this limit applies to all restitution orders. I agree with the following analysis of Weiler J.A.:
[43] The comment that a restitution order should be made with restraint and caution is sometimes taken out of context as a free-standing brake on the making of a compensation order. The comment by Laskin C.J. in Zelenskyregarding restraint and caution was made in the context of a broader statement that the purpose of a compensation order should not be to enforce a civil obligation, particularly where the amount taken is unclear; rather, the purpose of a compensation order is as part of the sentence. See Zelensky at pp. 961-962. The fact that a restitution order provides a convenient, rapid and inexpensive means of recovery for the victim, especially a vulnerable victim, is one of the considerations in favour of the making of such an order.
Application to the Facts
[20] In my view, a sentence of 8 months’ imprisonment is in itself proportionate and fit in light of the gravity of the offence and the degree of Mr. Abdulahi‑Sabet’s responsibility. As the sentencing judge recognized, in his particular circumstances that period of imprisonment alone amounted to a “severe punishment”. Her assessment in this regard was accurate.
[21] Mr. Abdulahi‑Sabet was the 47‑year‑old father of two young sons when he was sentenced. He and his wife live with their children in a basement suite. He has a university education but was injured at work, has received disability benefits since 2010 and struggles with depression and anxiety. He has no prior criminal record, is remorseful and entered a guilty plea. Nothing suggests that his personal or financial circumstances are foreseeably likely to change.
[22] For a person in Mr. Abdulahi‑Sabet’s modest financial circumstances, the addition of a $35,607.09 restitution order to an 8‑month custodial sentence significantly increased the severity of the punishment....
[23] For all these reasons, I agree with defence counsel that a $10,000 restitution order is appropriate. I would grant leave to appeal, allow the appeal, vary the restitution order by reducing the amount ordered to $10,000 with seven years to pay and leave the remainder of the order intact....
R v A.M., 2020 ONSC 4541
[July 27, 2020] – The appropriate timing of a 276/278 application [Vanessa Christie J.]
AUTHOR’S NOTE: Some more ink is spilled working out the fine details of the Ghomeshi amendments to the Criminal Code. Herein, Justice Christie sets out an authoritative basis for the conclusion that just because Affidavits on 276 applications were previously disclosed to the Crown under R. v. Darrah prior to the trial, does not mean that this should continue given the changes to the legislation. Although a case-by-case analysis is warranted (with the judge, not the Crown or complainant seeing the records in advance), an application for directions in advance of the trial can allow the Defence to set up the contradiction prior to informing the Complainant about the contents of an Affidavit or records in the possession of the defence. This result preserves the value of confronting witnesses with evidence that have no been able to prepare for in advance of the trial.
Overview
[1] The applicant, A.M., has brought this application seeking a ruling from the court as to the appropriate timing of a 276/278 application.
[2] The materials at issue in this application are WhatsApp text messages between the complainant and the accused. The WhatsApp messages cover a period between May 18, 2017 to January 15, 2018, however, the specific messages at issue in this application occurred in the summer of 2017.
[4] The WhatsApp messages were obtained from the applicant’s personal devices, as he had saved these messages since the communication occurred. They were not taken from the complainant’s devices.
[5] Most of the communications, in total, appeared to be just simple conversation between two people about their day to day life. There was nothing about the content of most of these messages that would engage s. 276 concerns. Having said that, there were a few messages that did contain some information that could constitute “sexual activity”.
[6] On March 13, 2020, this court heard an application in relation to the messages that did not engage s. 276.
[7] The two issues to be determined at that point were:
1. Is the Crown entitled to receive the proposed material in order to make submissions as to whether the material amounts to a “record” as defined in s. 278.1?
2. Is the material in the hands of the accused, that is sought to be introduced, a “record” as defined in s. 278.1; in other words, does it contain “personal information for which there is a reasonable expectation of privacy”.
[8] It should be noted that prior to oral argument on the first question, this court did not review the material, which had been sealed in an envelope and filed with the court. After determining that the answer to question #1 was “no”, in that the Crown was not entitled to see the material, but before hearing argument on question #2, the court did review the material.
[9] On March 25, 2020, this court determined that many of the messages did not meet the definition of “record” as defined in s. 278.1 of the Criminal Code, and therefore, were not captured by the legislation. This court ruled that, with the exception of the WhatsApp messages that engaged s. 276 of the Criminal Code, the complainant did not have a reasonable expectation of privacy in the WhatsApp messages. Therefore, the Applicant was not required to disclose them in advance to the Crown or complainant. See: R. v. A.M., 2020 ONSC 1846 [Author: Also see Defence Toolkit - April 12, 2020]
[11] Right from the outset, with respect to certain specific WhatsApp messages in the hands of the applicant, it was agreed that those messages contained sexual content, and therefore, would be subject to the legislation, the admissibility of which would be determined at another time. From the beginning of the first pre-trial application, the applicant was very upfront about the fact that if he wanted to adduce those specific messages that engaged s. 276 of the Criminal Code at his trial, an application would need to be brought to determine admissibility in accordance with the legislation....
[13] The applicant submitted that the 276 application should be permitted to be brought in the midst of the trial, after the complainant has testified in examination in-chief. The applicant argued that this was the only way to properly balance the complainant’s privacy rights and his right to a fair trial. The respondent argued that the 276 application must be brought pre-trial. The respondent submitted that there will be no impact on the applicant either way, however, the complainant’s rights and trial efficiencies will be significantly impacted if the application is permitted mid-trial.
The Legislation
[28] On December 13, 2018, several amendments to the Criminal Code, enacted by Bill C-51, came into force. The newly enacted statute amended the procedure that governed previous sections 276 and 278, connecting the prior sexual activity provisions with the records regime....
[29] The amendments brought some significant changes, including, but not limited to:
1. Creating an obligation on the defence where materials are already in their possession - The newly enacted s. 278.92 made such records presumptively inadmissible, subject to judicial screening. By virtue of s. 278.92(1) of the Criminal Code, the accused who is in possession of a “record” as defined in s. 278.1, and who wishes to adduce that record, must bring an application to determine whether the record is admissible. In order to be admissible, the evidence must meet the requirements in s. 278.92(2) with a consideration of the factors in s. 278.92(3). Where the record in question does not constitute sexual activity evidence, new section 278.92(2)(b) applies existing rules of evidence to prevent the admission unless the evidence is relevant to an issue at trial and it has significant probative value that is not outweighed by its prejudicial effect. New section 278.92(2)(a) provides that if a record constitutes evidence of sexual activity under section 276, the record is only admissible if the court determines that it meets the conditions set out in section 276(2), while taking account of the factors listed in sections 276(3) and 278.92(3);
2. Extending the definition of “sexual activity” in section 276 to which the “rape shield” provisions apply to include “any communication made for a sexual purpose or whose content is of a sexual nature” (s. 276(4));
3. In determining admissibility of records in the hands of the accused that meet the definition of sexual activity, the judge must take into account an additional factor, being “society’s interest in encouraging the obtaining of treatment by complainants of sexual offences” (s. 278.92(3)(c));
4. In relation to a stage two hearing to determine admissibility of sexual activity evidence, the complainant may appear and make submissions, may be represented by counsel, and the court is to advise the complainant of that right. (s. 278.94(2), (3) and (4)).
[30] Further, s. 278.93 and s. 278.94 provide a framework for how these applications will proceed...
[31] Stage one of the admissibility process would appear to be quite straightforward, in that it is mostly about the form and content of the application. The application must be triggered by the accused requesting a hearing under s278.94 to determine whether the evidence is admissible. The application must be in writing, with copies given to the Crown and to the court, setting out “detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial”. As for notice, a copy of the application must be given to the “prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the court may allow in the interests of justice”. It is of note that the legislation does not mention notice to the complainant. The judge then decides whether to hold a hearing based on the guidance from s. 278.93(4), the main consideration being whether the evidence sought to be introduced is capable of being admissible under subsection 276(2). Up to this point, there is no involvement by the complainant.
[32] Justice Doody in R. v. Barakat, [2019] O.J. No. 705 (C.J.), para. 18, and Justice Jackson in R. v. Francis, 2019 SKPC 67, paras. 12-14, discussed what it meant to be “capable of being admissible under subsection 276(2)”. Both Barakat and Francis discuss the fact that the threshold of “capable of being admissible” is low and that the complainant has no standing. In Barakat, the court stated:
[18] Sub-section 278.93(4) entails only a facial consideration of the matter and a tentative decision concerning the capability of the evidence being admissible. Courts should be cautious in limiting the defendant’s rights to cross-examine and adduce evidence. Unless the evidence clearly appears to be incapable of admissibility, having regard to the criteria of s. 276(2) and the indicia of s. 276(3), the court should proceed to the second stage and hold a hearing under s. 278.94, Any doubts under s. 278.93(4) are better left for decision on the evidentiary hearing under s. 278.94. (R. v. Ecker (1995), 1995 CanLII 3910 (SK CA), 96 C.C.C. (3d) 161 (Sask. C.A.); R. v. B. (B.), [2009] O.J. No. 862 (Ont. S.C.J.)
This court agrees with and adopts the words of Justice Doody noted above. The threshold to meet on stage one must be a low one and, when in doubt, the court should err on the side of caution and proceed to a hearing.
[33] At stage two, the hearing held pursuant to s. 278.94, admissibility largely depends on whether s. 276 is engaged, and the court must go through that appropriate analysis, ensuring that the evidence is not being sought to be introduced for inappropriate reasons, as in to support the twin-myths. If s. 276 is not engaged, pursuant to s. 278.92(2)(b), the evidence must be relevant and there must be significant probative value that is not substantially outweighed by the prejudice. The factors that must be considered are those set out in section 278.92(3). The complainant is not a compellable witness, but rather has the choice of participating and a right to do so, either on her own or through counsel. There is no reference to notice or the timing of notice to the complainant in advance of stage two. However, the complainant must be made aware of what is being sought to be introduced in order to participate.
[34] While the new provisions make significant changes, including what is captured as sexual activity, and obligations on the accused regarding “records” in their possession, the new provisions do not alter the substantive legal test applicable to 276 applications, except that in determining admissibility, the judge must now take into account an additional factor, being “society’s interest in encouraging the obtaining of treatment by complainants of sexual offences”. (s. 278.92(3)(c)). Consistent with fair trial rights, an accused remains able to adduce relevant evidence of “other sexual activity” at trial where it meets the admissibility criteria.
[41] The purposes and objectives of this legislation as outlined above are summarized as follows:
1. The need to respect all interests in a criminal trial: the rights of the accused to a fair trial; the truth-seeking function of courts; and the privacy, security and equality interests of the complainant;
2. The need to respect and provide dignity to victims of sexual assault;
3. Helping to eliminate myths, stereotypes and sexual violence against women;
4. Protecting the integrity of the trial by excluding irrelevant and misleading evidence;
5. Encouraging the reporting of sexual offences by protecting the security and privacy of complainants; and
6. To address concrete social prejudices that affect trial fairness, as well as the concrete harms caused to the victims of sexual assault, including a constellation of physical and psychological symptoms including: high rates of depression; anxiety, sleep, panic and eating disorders; substance dependence; self-harm and suicidal behaviour.
[42] It is the view of this court that it is not the timing of these applications, but rather the requirement for the application itself that achieves these purposes and objectives. This type of evidence, whether it involves a record already in the hands of the accused or not, is presumptively inadmissible. This type of evidence will not be permitted unless and until a judge makes a determination that it is permissible pursuant to the factors set out in the legislation. This type of evidence will not be permitted without notifying the complainant of the details of the application, providing the complainant with sufficient time before being required to respond, and allowing the complainant the opportunity to speak directly to the court, either personally or through counsel, on issues impacting privacy, security, dignity and equality interests.
[43] The threshold issue of when this application must be brought and the ultimate issue of whether the records are admissible are two discreet inquiries. Merging the consideration or the interests involved for each stage would be problematic and must be avoided. There is no argument in the case at bar that the application will not be required. The only argument is when that application will need to be determined.
[44] There is nothing about the purposes or objectives of this legislation that leads this court to the conclusion that the application to introduce sexual activity evidence should be brought pre-trial. Having considered the history of the legislation, its purposes and objectives, it is the view of this court that those purposes and objectives can still be met by a mid-trial application in this case. The evidence will not be permitted until it is screened by the court in accordance with the legislation, which means that the complainant will be well aware of the proposed evidence and have input into its admissibility.
The Right to Make Full Answer and Defence
[47] Crucial aspects of the right to make full answer and defence, connected to the presumption of innocence, are the accused’s right to challenge the evidence called by the Crown through cross-examination, and the ability to call necessary evidence. In R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, Cory J. explained the central role of cross-examination in the adversarial process:
[158] In R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, it was once again emphasized that the right to cross-examine constitutes a principle of fundamental justice that is critical to the fairness of the accused's trial. In that case, the right to cross-examine was placed in the context of the right to make full answer and defence (at p. 608, per McLachlin J.):
The right of the innocent not to be convicted is dependent on the right to present full answer and defence. This, in turn, depends on being able to call the evidence necessary to establish a defence and to challenge the evidence called by the prosecution.
…In short, the denial of the right to call and challenge evidence is tantamount to the denial of the right to rely on a defence to which the law says one is entitled. The defence which the law gives with one hand, may be taken away with the other. Procedural limitations make possible the conviction of persons who the criminal law says are innocent.
...
[160] Thus it can be seen that the right to cross-examine has always been held to be of fundamental importance in a criminal trial. That right is now protected by ss. 7 and 11(d) of the Charter. As a result it should be interpreted in the "broad and generous manner befitting its constitutional status" (see R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525, at p. 544).
[48] The importance of cross-examination in a trial is undeniable. The Supreme Court of Canada, in R. v. Lyttle, 2004 SCC 5, stated:
[1] Cross-examination may often be futile and sometimes prove fatal, but it remains nonetheless a faithful friend in the pursuit of justice and an indispensable ally in the search for truth. At times, there will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information that would otherwise remain forever concealed.
[2] That is why the right of an accused to cross-examine witnesses for the prosecution – without significant and unwarranted constraint – is an essential component of the right to make full answer and defence.
[50] There is obviously some benefit to confronting a witness with information in cross-examination that is not expected. In R. v. White, 1999 CanLII 3695 (ON CA), [1999] O.J. No. 258 (C.A.) at para. 20, the court recognized that a witness can tailor their evidence to fit the disclosure. The tainting of witnesses undermines the truth-seeking function of the trial. The court attempts to avoid this by such things as witness exclusion orders. This issue was also raised by Justice Horkins in R. v. Ekhtiari, 2019 ONCJ 774, para. 30, which will be discussed further below.
[54] The defence is generally entitled to keep documents confidential until choosing to use them at trial. This notion is rooted in the different roles played by the Crown and defence as noted above. See R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 at paras. 11-12.
[58] There are certainly instances in which the accused’s right not to disclose any information will have to give way or, where if not disclosed, adverse inferences will be drawn – such as an alibi, expert evidence, or in the context of third-party records. In fact, in the context of prior sexual activity evidence, even prior to these amendments, there was a need for the accused to provide affidavit evidence to support its application. However, there is no question that these instances have been determined to be necessary in those particular circumstances, and those instances are limited.
[59] As a response to cases where records have been used to impeach sexual assault complainants, Parliament enacted the procedural measures in Bill C-51 that places limits on the accused’s right to cross-examine and adduce evidence. Given that the applicant in this case concedes that the records engage s. 276 concerns, an application will be required to determine admissibility. If the application fails at stage one, cross-examination on these records and the content of the records will not be permitted. If the application meets the threshold at stage one, the complainant is entitled to know about the application, which must include “detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial”. Therefore, there is no question that if the applicant is permitted to use this sexual activity evidence, the applicant will be required to make such disclosure. The Supreme Court of Canada in Darrach, as well as other cases, have found this to be constitutional. The applicant takes no issue with this requirement. Disclosure will be made. The only question for this court is when will that disclosure be made.
[60] It is the view of this court that requiring pre-trial disclosure of the defence’s cross examination material, versus allowing for mid-trial disclosure of the material, unnecessarily infringes the applicant’s rights set out above because of the danger that it will render the cross-examination ineffective. A witness with full advance notice of impeachment material is in a position to tailor their evidence to fit the disclosure. In the case at bar, the witness is a sexual assault complainant whose testimony is central to the prosecution’s case. Therefore, any unnecessary risk of tainting the complainant’s testimony that occurs by requiring the defence to proceed with a s. 276 application before trial can be fatal to a fair trial. [Author's Emphasis] [64] The Crown argued that advance knowledge of the cross-examination by the complainant will better serve the truth-seeking function of the trial, as the complainant will be able to respond to questions in a more calm and coherent fashion. Cross-examination of a witness regarding a prior inconsistent statement has never required disclosure prior to the examination in-chief and is not considered by this court to be of assistance in seeking the truth of the matter. The effect of disclosing to the complainant is that it may allow her to prepare for trial, ready to explain and possibly modify her evidence. Such modification of testimony is possible, and that concern is reflected in long standing practice to exclude witnesses from trial until after their evidence is given.
[65] The Charter rights of the accused are not decided in a vacuum. These rights must be balanced against the complainant’s rights, including rights to privacy, security, dignity and equality. The legislation certainly seeks to dispose of evidence used solely to support groundless myths and stereotypes, however, principles of fundamental justice allow for the admission of evidence that is not used for this purpose, and which is relevant. Prior to these records or the contents of these records being put to the complainant, if this application is successful, she will be aware of the detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial. It is the view of this court that requiring the applicant to disclose these details prematurely would amount to an unwarranted violation of s. 7 and 11(d) of the Charter. [Emphasis by the Author] [85] The court in M.S. finds support in the fact that having a pre-trial application is simply the way it “has always been done since the first efforts of Parliament to regulate the admission of sexual history evidence.” This is not an argument to support that something should continue to be done. Prior to sexual activity evidence being held to be presumptively inadmissible, it was used, regularly for improper purposes. However, it was certainly time for that practice to stop for principled reasons. Arguing that something has always been done and should continue, misses completely the ever-evolving nature of law.
[88] In holding that pre-trial applications should be the practice, Justice Chapman found that it is best for questions to be vetted in advance, even though counsel may change their mind and, given the way the evidence has unfolded, choose not to pursue questions related to records or sexual activity. It is the view of this court that this would seem to make for unnecessary trauma to the complainant who will have been involved in an unnecessary pre-trial application that never needed to happen.
[99] Further, courts are put in a very difficult, if not impossible, position when asked to make rulings based on speculation as to what could happen as opposed to what has happened. In R. v. Harris, 1997 CanLII 6317 (ON CA), [1997] OJ No. 3560 (C.A.), Justice Moldaver discussed the preference for final rulings to wait in the context of 276 applications. In Harris, one of the grounds of appeal related to a failed 276 application that was brought at the outset of the trial, before the complainant testified in chief. The court stated:
[38] Given the vagaries that all too often exist when trial judges are asked to make "advance" evidentiary rulings, it seems to me that as a matter of prudence, apart from perhaps stating a tentative view, trial judges should resist making final rulings until such time as they are required to do so. Experience suggests that as the trial progresses, issues raised at the outset of the proceedings have a tendency to either disappear or get resolved. Those that remain outstanding are likely to be brought into much sharper focus as the evidence unfolds. To be certain, where the proposed evidence is likely to have a significant impact on the outcome of the trial, an ounce of prevention is worth a pound of cure and trial judges would be well advised to refrain from making conclusory rulings until such time as they are required to do so.
See also Ekhtiari, para. 30; R.S., paras. 89-90; X.C., para. 76
Conclusion
[102] The applicant is asking the court to make a case specific analysis to determine whether the application can be brought mid trial in this case. Not all cases will proceed in the same fashion as the one before this court. This court is not suggesting that every application of this nature must be brought mid-trial. However, it certainly should not be taken for granted that the default position is for these applications to be heard pre-trial. There appear to be many principled reasons to support a mid-trial application. Perhaps an application for direction on timing should be conducted on a regular basis.
[105] Parliament has the ability to add to existing protections. The amendments are an extension of already existing protections that have been in effect for some time. However, the suggestion that the applicant must bring this application pre-trial would read something into the statute that simply does not exist. The legislation states that notice must be provided “seven days previously”, not “seven days in advance of trial”. There is no binding authority on this court to support the contention that this application must be brought pre-trial. To read the statute as requiring a voir dire prior to trial, would limit the accused’s rights to full answer and defence and violate the right against self incrimination unnecessarily, by forcing the defence to disclose information to the Crown and complainant prematurely. These are important Charter rights that are long established.
[107] The timing of the application does not affect the complainant’s rights in any negative way. Whether this application is brought pre-trial or mid-trial, the complainant may be involved in two separate processes. There is no support for the proposition that a mid-trial application significantly worsens this already trying process. There is no support for the proposition that, as the Crown suggested, it is better to have two stressful events separated and dealt with one at a time. While delays in testimony are likely stressful for any witness, issues often arise in trials that cause delay. This is the reality of a trial. Gaps in testimony are to be avoided where possible. A mid-trial motion does not make the complainant face stress any more than a pre-trial motion. The uncertainty the complainant feels about the process, and the questions to be asked of her, will still exist. Even if she is aware of the details provided in the application record, she will not know the questions to be asked of her.
[108] The reality is that these applications can be re-opened at trial. This was recognized most recently in R. v. Barton:
[65] Finally, a ruling on the admissibility of prior sexual activity evidence under s. 276 is not necessarily set in stone. There may be circumstances in which it would be appropriate for the trial judge to reopen a s. 276 ruling and hold a new hearing to reconsider the admissibility of prior sexual activity evidence. By way of illustration, where a complainant makes a statement to the police that prior sexual activity occurred but later contradicts that evidence in her testimony at trial, that contradictory testimony would open the door to the defence bringing a renewed s. 276 application seeking to have the prior sexual activity evidence admitted for credibility purposes (see R. v. Crosby,1995 CanLII 107 (SCC), [1995] 2 S.C.R. 912; R. v. Harris (1997), 1997 CanLII 6317 (ON CA), 118 C.C.C. (3d) 498 (Ont. C.A.)), despite an initial ruling of inadmissibility. This is but one example. There may be other circumstances in which it would be appropriate for the trial judge to reopen a s. 276 ruling and hold a new hearing to reconsider the admissibility of prior sexual activity evidence.
This means that even if the application is brought pre-trial and the court rules that the evidence is inadmissible, the possibility always exists that the issue could be re-addressed at a later point. Therefore, there would still be uncertainty.
[110] The only difference that results from the timing of this application being mid-trial is that the complainant would not know the detailed particulars of the communications prior to giving her evidence in chief. There would be no opportunity to tailor the evidence in chief to line up with the text messages. This is in everyone’s best interests. This is fundamental to the search for truth and the fair trial rights of the accused. Use of prior inconsistent statements to impeach a witness is a well-established means of testing the credibility and reliability of witnesses. The evidence of the complainant in this case, as in many cases, is crucial. While there are circumstances where the complainant may be aware of defence strategy prior to trial, this does not mean that it should be encouraged or that it should be the norm.
[112] The real negative impact of a mid-trial application is upon the administration of justice. The reality is that it may cause delay; it may cause adjournments. This is particularly concerning in the case of jury trials where there is a need to be mindful of disruptions in the lives of many. However, even in the case of judge alone trials, delays and adjournments are to be avoided. Everyone, including the accused, complainants, witnesses, and society, has an interest in having matters proceed fairly and efficiently. The reality is that delays do occur and are sometimes unavoidable. Delays can be minimized by open discussions at judicial pre-trials about anticipated issues that will arise in a trial. It is expected that counsel will be prepared to discuss all aspects of the case in order to properly estimate time for trial and resources needed to minimize delays.
[113] Regardless of trial management issues, however, a person charged with an offence is entitled to the ability to make full answer and defence. Trial management must yield to the need to avoid convicting the innocent. Fairness comes first.
[114] Under the previous regime, it appeared to be the case that these applications were routinely brought pre-trial. However, there does not seem to be authority for that requirement and no answer for why this occurred. As previously stated, just because something has always been done does not mean it should continue. Further, the nature of these applications has now been changed by these amendments, such that communications are now explicitly captured by this legislation and there is now an obligation on the defence to seek judicial approval prior to using records in their possession. Surely, these new obligations must be considered and balanced against the timing of the application. A core issue that the legislation addressed was that the defence would not be permitted to use records in their possession without a screening mechanism to ensure that privacy interests were protected. That issue is resolved by the application process itself. However, allowing a mid-trial application ensures that the objectives are met, and the complainant’s rights are protected, in a way that respects the Charter rights of the accused.
[116] For all of the foregoing reasons, including, but not limited to the constitutional considerations and the circumstances of this case, the applicant is permitted to bring an application under s. 278.93 and 278.94, to determine the admissibility of the WhatsApp messages that engage s. 276 of the Criminal Code, mid-trial.
[117] Having concluded that this application can be brought during the trial, does not mean that the materials pass the 276 criteria or that the materials are necessarily relevant to an issue at trial, or for that matter satisfy rules of authenticity. This court is not ruling on the actual admissibility or the use of the communications at trial.
