This week’s top three summaries: R v Clark, 2022 SCC 49: #eye-witness ID, R v McDonald, 2022 ONCA 838: #silence and ineffective counsel, and R v Edama, 2022 ABCA 394: NCR absolute discharge.

This week's top case deals with eye-witness identification evidence. For great general reference on the law of evidence, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.

MODERN CRIMINAL EVIDENCE

By Matthew Gourlay, Brock Jones, Renee Pomerance, Glen Crisp & Jill D. Makepeace

The first treatise to provide a truly practical and comprehensive guide to criminal evidence law in Canada. This casebook guides readers through evidentiary issues in all components of criminal law, providing indispensable insight from Crown, defence, and judicial perspectives.

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R v Clark, 2022 SKCA 36 [Minority Upheld Unanimously: 2022 SCC 49]

[Upheld at SCC: November 30, 2022] Eye-witness Identification: Social Media Pictures and In-Dock Identification [Mr. Justice Leurer]

AUTHOR’S NOTE: In today's social-media connected world, it is often the case that anyone can connect a name with an image of a person. Given the frailties of eye-witness identification in general, where such a process occurs prior to the in-dock identification of an accused in court, there are significant reasons for concern. Factors related to such an identification may require a strong caution with the jury being told that it would be "very dangerous" to attribute any greater degree of certainty to the in-court identification than to the prior identification evidence communicated to police. Here the witness became very sure in court whereas her prior personal investigation caused her to be very cautious in her degree of certainty presented to the police.

Leurer J.A. (in dissent)

I. INTRODUCTION

[57] In the early morning hours of October 2, 2016, Christopher Durocher was killed by blunt force trauma. An expert pathologist testified that Mr. Durocher’s death was caused by at least three to five blows to his head. After a trial before a Court of Queen’s Bench judge and jury, Ryan Clark was convicted of murdering Mr. Durocher. Mr. Clark now appeals from this conviction.

[58] The key issue at the trial was the identity of Mr. Durocher’s assailant. Two eyewitnesses made an in-court identification of Mr. Clark as a man who was with Mr. Durocher on the night he was killed. While a caution about the inherent frailties of in-court identification evidence is not required in every case, I have concluded that the circumstances here demanded that one be given. Because jurors were not provided with appropriate warnings about this testimony, they were not equipped to properly review the evidence before them. It is for this reason that I am unable to join my colleague, Tholl J.A., in his decision to dismiss Mr. Clark’s appeal. Instead, I would order a new trial.

[60] Mr. Durocher spent his final hours with Richard Williams and Heather Holmgren at the campsite where he lived near Christopher Lake. Mr. Williams was a friend of Mr. Durocher. Ms. Holmgren was, at the time, Mr. Williams’s girlfriend.

[61] According to Mr. Williams and Ms. Holmgren, in the late hours of October 1, 2016, Mr. Durocher introduced them to a man he described as his best friend. Neither Mr. Williams nor Ms. Holmgren had previously met this friend. The Crown’s theory at trial was that this individual was Mr. Clark, and that he administered the beating that killed Mr. Durocher. As the judge explained to the jury, the case against Mr. Clark depended “almost entirely on eyewitness testimony from [Mr.] Williams and [Ms.] Holmgren in placing Mr. Clark at the scene of Mr. Durocher’s residence on the night of October 1st and early morning hours of October 2nd” (emphasis added).

[62] At the trial, Mr.Williams testified that he witnessed Mr.Durocher’s friend strike Mr. Durocher one time. Later, the police found Mr. Durocher beaten to death. I will return to discuss, in detail, Mr. Williams’s testimony, but it is useful to understand that, on the night Mr. Durocher was killed, Mr. Williams was strung out on drugs. As I will explain, after the police were called, Mr. Williams had only a limited ability to describe Mr. Durocher’s assailant and he was never asked by the police to identify that person through a photo line-up. However, at trial, he unequivocally fingered Mr. Clark as the assailant.

[63] Ms. Holmgren did not witness the assault on Mr. Durocher. However, she too met his friend that night. As I will explain, Ms. Holmgren was able to provide only a limited description of this man when she was first interviewed by police on October 2, 2016. Later that day, Ms. Holmgren reviewed Mr. Durocher’s Facebook page. Following this, Ms. Holmgren took her cellphone to the police to show them several pictures of Mr.Durocher and Mr.Clark. Ms. Holmgren told the police that she was “pretty sure ... like, 90 percent sure” that Mr. Clark was the man who had been present at the campsite that night. However, she also said that she was “not good with faces and names” and she invited the police to verify with Mr. Williams if the person she had found on Facebook was the individual the two had met that night. There is no evidence that Mr. Williams was asked to do this. Like Mr. Williams, Ms. Holmgren made an unequivocal in-dock identification of Mr. Clark as that person.

[64] In addition to the testimony of Mr. Williams and Ms. Holmgren, the Crown presented circumstantial evidence bearing on the question of the identity of the assailant. This included evidence (a) as to Mr. Clark’s alleged motive for killing Mr. Durocher, (b) that Mr. Clark had opportunity and access to a vehicle that, in a general way, matched the description of a vehicle given by Ms. Holmgren but not Mr. Williams, and (c) that Mr. Clark’s DNA was found on two items found at the campsite. However, there were significant weaknesses in all aspects of this evidence.

[67] Perhaps the strongest circumstantial evidence connecting Mr. Clark to the crime was a water bottle and hat found by the police at the campsite. His association with these objects was established by the presence of his DNA on both articles. However, several factors diminished the value of these items as circumstantial evidence that Mr. Clark had killed Mr. Durocher.

[68] The evidence was that Mr. Clark had previously lived with Mr. Durocher. For this reason, there were circumstances, other than Mr. Clark’s presence on the night in question, that might explain the appearance of these two objects at the crime scene.

[69] At trial, both Mr. Williams and Ms. Holmgren described how Mr. Durocher’s friend drank from, and discarded, a disposable water bottle given to him by Ms. Holmgren. A disposable water bottle was found at the crime scene. It was not initially perceived by the police to have evidentiary value. This thought changed after Ms. Holmgren and Mr. Williams gave their statements. The bottle was then seized and tested. However, the evidence could not establish how long Mr. Clark’s DNA had been on the bottle or how long it had been at the campsite. As well, although Mr. Williams and Ms. Holmgren testified that they saw Mr. Durocher’s friend drink from a water bottle, neither identified the bottle entered into evidence as being similar to, let alone the same type as, that given to Mr. Durocher’s friend that night. This fact was commented on by the judge in his jury charge.

[70] The same problems exist with respect to the hat. In his charge, the judge specifically reminded the jury in relation to this hat that there “is evidence that Mr. Clark had been at Mr. Durocher’s residence a number of times in the past”. No witness identified the hat as being worn by Mr.Durocher’s friend. As well, the evidence was inconclusive as to whether Mr. Durocher’s assailant was even wearing a hat at all.

[71] These frailties in the circumstantial evidence justify the judge’s decision to tell the jury that the case against Mr. Clark depended “almost entirely” on the evidence of Mr. Williams and Ms. Holmgren.

III. LEGAL PRINCIPLES: HIBBERT INSTRUCTIONS

[73] Hibbert provides direction to courts on how to approach the type of eyewitness evidence that lies at the heart of this appeal – what is often referred to as “in-dock” identification testimony. More specifically, the case has led to a requirement that jurors be given “what is known as a Hibbert instruction”, going beyond standard cautions, in situations where there is suspect in-court identification testimony (R v Jack, 2013 ONCA 80 at para 31, 294 CCC (3d) 163 [Jack]). This Court summarized the effect of Hibbert in R v Bigsky, 2006 SKCA 145, 217 CCC (3d) 441 [Bigsky]:

[26] The Supreme Court of Canada in Hibbert found that the trial judge should have cautioned the jury more strongly that the identification of the accused in court was highly problematic as direct reliable identification of the perpetrator of the offence. The Court noted the danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere. An instruction that such identification should be accorded “little weight” was found not to go far enough to displace the danger that the jury could still give it weight that it does not deserve. Moreover, it should also have been stressed that the impact of the victim having seen the accused arrested by the police as her alleged assailant could not be undone. And this was so even though the trial judge had addressed the frailties of the identification evidence. The Supreme Court of Canada allowed the appeal and ordered a new trial.

(Footnotes omitted)

[74] In Hibbert, two witnesses offered in-court identifications of an accused. One witness, Ms. McLeod, was “the victim of a life-threatening, vicious, unprovoked beating” (at para 47). The second witness, Ms. Baker, lived next door to the property where the assault occurred and had observed the perpetrator. Both these witnesses had engaged in photo line-ups containing the accused’s image, had worked with a police sketch artist to craft an image of the perpetrator they observed, and had seen the accused in news footage at the time of his arrest. Finally, prior to giving their testimony, there had been a preliminary hearing and an earlier trial at which both had testified.

[75] Ms. McLeod had been unable to positively identify the accused in the photo line-up but had indicated that she may have encountered him at some point in the past. At the second trial, she was asked if she was able to recognize the man who assaulted her as being a person in the courtroom. Crown counsel invited Ms. McLeod to identify Mr. Hibbert, telling her that it was “important for the jury to know, Mrs. McLeod, whether or not you are able to identify your attacker and not someone that you have seen subsequently, do you understand?” (at para 12). In response to this invitation, Ms. McLeod identified Mr. Hibbert.

[76] The police also showed Ms.Baker a photo line-up. She told investigators that Mr. Hibbert’s image in the photo line-up “resembled the person she saw but she could not be positive” (at para 15). At the preliminary hearing and the first trial, she had identified Mr. Hibbert as the perpetrator. At the second trial, she was specifically asked if she recognized the person she saw that day, “not as someone she had seen in photographs, on television news, or at any other time, but as the man she saw on the day of the attack”. Ms. Baker replied that she “recognize[d] him in the box” (at para 16).

[80] Since Hibbert, appeal courts have emphasized that a caution – going beyond a general one relating to the frailties of eyewitness identification evidence, and instead specifically directed to instructing jurors as to the dangers of placing reliance on in-court identification testimony – is required in cases where the in-court identification is suspect. In R v Pelletier, 2012 ONCA 566 at para 93, 291 CCC (3d) 279, Watt J.A. stated, with reference to many authorities dating from before and after Hibbert, that “as a general rule, in-dock identifications are entitled to little weight in the assessment of the adequacy of the prosecution’s proof on the issue of identity”. I will give several additional examples of cases where general instructions relating to the frailties of eyewitness identification evidence were found to be insufficient and jury charges were held to be deficient because jurors were not adequately cautioned about the dangers of in-court identification testimony.

[98] First, I am not saying that the facts of this case are identical to those in Hibbert or the other cases that I have reviewed. The reality that the facts are different simply reflects the endless variety and unpredictability of human conduct and experience. As I will explain, the concerns that led to the requirement for an additional and specific caution in those other cases also exist in the circumstances here.

[99] Second, I would not want these reasons to be read as suggesting that an in-dock identification of an accused person is in most cases impermissible. To the contrary, it is often required. In Hibbert, Arbour J. said that, in that case, the in-court identification “served to confirm that the accused was, in the opinion of Ms. McLeod and Ms. Baker, the same man they saw throughout the chain of events (from arrest through to the second trial)”. For that reason, “[i]n that sense, despite its almost total absence of value as reliable positive identification, the evidence of the witnesses may be given some weight at least for that purpose” (at para 49, emphasis added). Indeed, the law recognizes that in-court identification may be required as a precondition to the admission of prior identification evidence: R v Tat (1997), 117 CCC (3d) 481 at paras 40 and 46–50 (Ont CA). However, as Doherty J.A. explained in Tat, the value, if any, of an in-court identification is inherently tied to what supports that testimony:

[36] Clearly, the evidence of the prior descriptions given and the prior identifications made by the identifying witness constitute prior consistent statements made by that witness. Generally speaking, evidence that a witness made prior consistent statements is excluded as irrelevant and self-serving. However, where identification evidence is involved, it is the in-court identification of the accused which has little or no probative value standing alone. The probative force of identification evidence is best measured by a consideration of the entire identification process which culminates with an in-court identification: e.g. R. v. Langille, supra, at 555; Di Carlo v. United States, 6 F.2d 364 (2d cir. 1925) at 369, per Hough J., concurring; Clemons v. United States, 408 F.2d 1230 (D.C. cir. 1968) at 1243. The central importance of the pre-trial identification process in the assessment of the weight to be given to identification evidence is apparent upon a review of cases which have considered the reasonableness of verdicts based upon identification evidence: e.g. see R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont. C.A.).

[37] If a witness identifies an accused at trial, evidence of previous identifications made and descriptions given is admissible to allow the trier of fact to make an informed determination of the probative value of the purported identification. The trier of fact will consider the entirety of the identification process as revealed by the evidence before deciding what weight should be given to the identification made by the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior descriptions given will be central to that assessment.

(Emphasis added, footnote omitted)

[100] Third, I do not wish to be understood as saying that in all cases where an in-dock identification has been made the jury must receive a so-called Hibbert instruction. The unique circumstances of each case must be considered to assess whether a specific caution is required, and if so, what that caution should consist of. As Arbour J. explained, “[w]hat will be required to displace the danger that the jury will give an eyewitness identification weight that it does not deserve will vary with the facts of individual cases” (Hibbert at para 53).

[101] I find it to be neither necessary nor appropriate to attempt to construct an exhaustive list of criteria as to when a Hibbert-type instruction is required. However, several principles emerge from the case law that I have reviewed and guide me in this case. In this regard, juries should receive a caution about the dangers of an in-court identification when the first actual identification of an accused occurs in court. Beyond this, consideration of when a special caution is required, and what it must contain, begins with an understanding as to what prior identification a witness has made of the accused before testifying. Account must also be taken of the quality or basis for such identification. Finally, attention must be paid to the opportunities that exist for that identification to change over time, and why that might be the case. As is evident from the case law I have reviewed, the reasons why these are paramount considerations are that the evidentiary value of the in-court identification is a direct product of these three factors and, conversely, the dangers associated with an in-court identification increase as the quality of any pre-testimony identifications decreases.

V. ANALYSIS

[106] In this part of my reasons, I will explain the need for a Hibbert-type instruction in relation to the testimony of both Mr. Williams and Ms. Holmgren. I will then analyze why, in my respectful view, the charge given to the jury did not fulfil, from a functional perspective, what was required in the circumstances of this case.

A. Mr. Williams’s testimony

[107] It is important to an understanding of Mr. Williams’s testimony to be aware that, prior to the night in question, he had never met Mr. Durocher’s friend. It is also important to know that, in the aftermath of the events, Mr. Williams could provide the police with little useful identifying information, and what he did provide was inconsistent. The reasons for this may, in large part, be because his observational abilities were impaired by drugs and the circumstances for him to observe the man were less than ideal.

[108] Mr. Williams was a drug addict and was using heavily on October 1, 2016....

[110] The evidence also showed that, right around the time Mr. Williams met Mr. Durocher’s friend, Mr. Williams was hallucinating. In this regard, Mr. Williams and Ms. Holmgren both described how Mr. Williams was seeing “little people” that evening.

[113] Mr. Williams gave statements to police on October 2 and October 3, 2016. At the first interview, Mr.Williams told the police that he was unable to provide a description of Mr. Durocher’s assailant because he “wasn’t paying attention”. At one point in that first interview, Mr. Williams referred to the assailant as a “white guy with a scruffy beard” who had a hat on. However, much of this description changed when he spoke with police the next day.

[114] In the second police interview, Mr.Williams described the assailant as having a complexion that was both “white and brown, kind of mixed” and with “maybe bad skin”, but he added that “it was dark, and it was hard to see”. When asked to explain what he meant by “white and brown”, Mr. Williams said that “it could have been his facial hair”. By the time of this second interview, Mr. Williams could not recall if the assailant was wearing a hat.

[115] Of note is the fact that the police never showed Mr. Williams a photo line-up, nor was Mr. Williams otherwise ever asked to identify the assailant from a photograph. This is the case even though, as already noted, Ms. Holmgren came forward with a photograph showing who she thought was the man she had been introduced to that evening.

[116] According to this evidence, by the time Mr. Williams presented himself in court to testify, he had never made a visual identification of Mr. Clark as Mr. Durocher’s assailant. Moreover, the descriptive information he provided was of limited quality and was inconsistent.

[117] The fact that there is no evidence that Mr. Williams visually identified Mr. Clark before testifying, and the fact that his descriptions of the assailant were problematic on their own, demanded that the jury be strongly, and specifically, cautioned that the in-court identification by Mr. Williams had limited, if any, evidentiary value....

[118] The way Mr.Williams’s testimony unfolded prior to his in-court identification of Mr. Clark reinforces the need for a Hibbert-type caution in this case.

[122] ...This response led Crown counsel to attempt to elicit a description of that person’s distinguishing characteristics. The following exchange occurred:

Q So why was Ryan reminding you of somebody that you knew? What are the characteristic [sic]?

A Just, I guess, the mouth and the -- the nose. Just --

Q Okay.

A -- that’s all I could see. I don’t know. I can’t remember the way -- how he was speaking or whatever. It’s just -- it’s been two years, right? It’s just --

Q And if you make an effort, Mr. Williams, about the speech, what is it that you say that is particular about his speech?

A I don’t know.

[123] After one other inconclusive question and answer, Mr. Williams was asked the question that led to him to finger Mr. Williams as Mr. Durocher’s assailant:

Q So by -- like, if he was in the courtroom today, would you recognize him? A I don’t know.
Q Why?
A Just -- I’d recognize him.

Q Do you see him in the courtroom? A Oh, yeah. Yeah.
Q Where -- where is he?
A Right there.

Q Are you showing the person behind me?
A Yeah.
MS. GAGNON: The witness is identifying the accused.

[125] In summary, there was a collection of circumstances that should have led the judge to give a Hibbert-type caution. These were (a) the inability of Mr. Williams to offer a meaningful description of the assailant in the aftermath of the incident, (b) the fact that Mr. Williams had never identified the assailant before first giving testimony identifying Mr. Clark, (c) the manner in which Mr. Williams’s evidence was presented at trial, and (d) the strong likelihood that the passage of time and other circumstances, such as the fact Mr. Clark stood before him in-dock, would have increased Mr. Williams’s confidence that Mr. Clark was Mr. Durocher’s assailant.

[126] Taken together, these circumstances demanded that not only should the judge have reviewed the evidence in detail, but jurors should have been cautioned in the strongest terms that they should approach Mr. Williams’s in-court identification of Mr. Clark with extreme caution and have been told why this is the case. This was a situation where more should have been said than that this evidence had “little weight” – to use the term that was deemed insufficient in Hibbert. As in Tebo, even “assuming the jury was entitled to consider [Mr. Williams’] in-dock identification at all, this was a case where the jury should have been forcefully told that they could give virtually no weight to it” (at para 19).

B. Ms. Holmgren’s testimony

[128] Ms. Holmgren described the events of the day from her perspective. She agreed that, at the time of Mr. Durocher’s murder, she was a “meth addict” and that drugs had a “significant effect” on her life. Her evidence was, however, that on the day in question she had only consumed methamphetamines earlier in the day, and she denied this had any effect on her.

[130] Ms. Holmgren’s next interaction with this person was when he came to the truck in which she was sitting. The man asked for water. She pointed him to a water bottle in her van. Shortly after this, she declined to give him a cigarette. After these two brief interactions, Ms. Holmgren decided to go home. She said that Mr. Williams and Mr. Durocher’s “buddy” had to move their vehicles because they were blocking her minivan. They moved their vehicles, and she drove about half the way to the highway. She came back to retrieve her cigarettes, and then again drove away, parking close to the highway, so she could send some messages to her child to tell him that she was on her way home.

[131] Less than two minutes later, Mr. Williams pulled up beside her vehicle. He told her that “that guy jumped Chris”. The two discussed what to do, leading them to leave the scene. Her description of the remaining events from the early morning generally aligned with that given by Mr. Williams.

[132] Ms. Holmgren and Mr. Williams slept at her parent’s home in Meath Park. She woke up after 8:00 a.m. By this point, Mr. Williams had attempted, without success, to reach Mr. Durocher using Ms. Holmgren’s telephone. Ms. Holmgren connected with a friend, Gail Bradfield. Ms. Holmgren, Mr. Williams, and Ms. Bradfield set out to Mr. Durocher’s campsite. Ms. Holmgren was driving.

[133] They decided to attempt to identify Mr. Durocher’s friend. Ms. Holmgren was told by Mr. Williams that Mr. Durocher’s friend was named “Ryan Delorme”. Ms. Holmgren knew Ryan Delorme, so ruled him out. They went on Facebook. Ms. Bradfield showed Ms. Holmgren some pictures of people she found on that social media app, but Ms. Holmgren did not recognize any of them. Later, when Ms. Holmgren was alone and not driving, she went on Mr. Durocher’s Facebook page and identified the person she thought had been with Mr. Durocher when she and Mr. Williams left the campsite.

[134] Ms. Holmgren gave two statements to the police on October 2, 2016. The first was given at 4:32 in the afternoon. At that time, Ms. Holmgren told the interviewing officer that she had been introduced to Mr. Durocher’s friend but “didn’t pay attention”. She said that the person was wearing a white and red t-shirt and had “blond hair or sandy blond hair” and, she thought, curls. She also added that she had been told by Mr. Williams that the person had a scruffy beard, but she did not remember that.

[138] Ms.Holmgren’s examination-in-chief concluded with the following questions and answers:

Q MS. GAGNON: So, Heather, if I ask you today to identify in the courtroom, if he’s here, maybe he’s not, the -- the guy that you saw with Chris the night of the murder, that Ryan that you just identified on your Facebook. Do you see him in the courtroom?

A Yes, I do.
Q Could you point at him, please?
A He’s right there.
MS. GAGNON: So for the record, the witness is pointing at the accused.

[139] At first blush, it might be suggested that Ms. Holmgren’s in-court identification of Mr. Clark as Mr. Durocher’s friend is less problematic than that of Mr. Williams. However, although Ms. Holmgren was likely less impaired by drugs, and remembered more of what she saw that night, she was only able to provide the police with limited identifying information. Further, her testimony was anchored in her identification of Mr. Clark in the photographs she uncovered in her self-initiated investigation. She believed the person who she saw that night was Mr. Durocher’s friend and that his name was Ryan. It seems clear that, in her review of Mr. Durocher’s Facebook page, it would be far more likely for her to identify a photograph of a person with that name as the person she was looking for. Of course, even ignoring the obvious problems that this creates, the universe of persons whose pictures she would have reviewed would have been limited to the people with whom Mr. Durocher had a connection on Facebook. I would unfavourably compare this means of identifying a person from a photograph with the careful approach which is taken to ensuring that photo line-ups are not tainted in a manner that might lead to a witness to identify the accused.

[140] The evidence relating to Ms. Holmgren’s report to the police about the Facebook photos compounds these concerns. As I have reviewed, when Ms. Holmgren presented the results of her investigation to the police, she stated that she was “pretty sure it’s him. I would have to say, like, 90 percent sure, but I’m not good with faces and names”. She also noted differences in the appearance of the person in the Facebook pages and the person she recalled seeing that previous night. Finally, to underscore the level of her uncertainty, she asked the police to show the photographs to Mr. Williams so he could verify if the person she saw on the Facebook page was the same person she had met the evening before.

[141] In contrast to the uncertainty that Ms. Holmgren had expressed when she presented the photographs to the police, her in-court identification was emphatic and unqualified. She literally pointed to Mr. Clark as the person whom she had met with Mr. Durocher.

[143] In the absence of another explanation for Ms. Holmgren’s more confident in-court identification, the circumstances here point very strongly towards the conclusion that it was a product of events that had taken place after her police interviews, the fact that she would have repeated her belief that, notwithstanding her previous uncertainty, it was Mr. Clark she saw, and the fact that Mr. Clark was, at the moment of her testimony, sitting before her in the prisoner’s dock. These are precisely the kinds of concerns that underpinned the need for a special caution in Hibbert and the other cases I have reviewed.

[144] In the context of this case, Ms. Holmgren’s confident unqualified in-court identification had the potential to be particularly pernicious. As I have explained, the Crown’s case was tenuous. While the Crown was entitled to rely on the totality of the evidence to suggest that the standard of proof beyond a reasonable doubt was met, the risk remains that jurors may have thought that it was safe to convict on the strength of Ms. Holmgren’s evidence alone. Even leaving aside the other problems with Ms. Holmgren’s identification of Mr. Clark, a statement that a witness is “pretty sure”, or even “90 percent sure” does not meet the burden of proof beyond a reasonable doubt. See R v Lifchus, [1997] 3 SCR 320 at paras 30–32 and Starr at para 242.

[145] For these reasons, the circumstances of this case required the judge to caution the jury about the in-dock identification that Ms. Holmgren had made and also instruct them that it would be very dangerous to attribute to Ms. Holmgren’s in-court identification of Mr. Clark any degree of certainty greater than what she had communicated to police on October 2, 2016.

C. The charge the jury received

[146] The judge properly explained foundational principles, such as the role of the jury, the presumption of innocence and the requirement that the Crown prove its case beyond a reasonable doubt. He discussed the use of direct and circumstantial evidence. He talked about the relevance of motive. In the context of his review of the evidence, the judge also told the jury to approach Mr. Williams’s testimony “with the greatest care and caution”, for the reasons set out in R v Vetrovec, [1982] 1 SCR 811.

[147] The judge also identified for the jury that the case against Mr. Clark “depends almost entirely on eyewitness testimony from Rick Williams and Heather Holmgren in placing Mr. Clark at the scene of Mr. Durocher’s residence on the night of October 1st and early morning hours of October 2nd”. He then gave the following instruction:

You must be very careful about relying on eyewitness testimony to find Ryan Clark guilty of any criminal offence. Innocent people have been wrongly convicted because reliance was placed on mistaken eyewitness identification. Even a number of witnesses can be honestly mistaken about identification. Eyewitness identification may seem more reliable than it actually is because it comes from a credible and convincing witness who honestly, but mistakenly, believes that the accused person is the one he or she saw involved in the offence. There is little connection between the great confidence of the witness and the accuracy of the identification. Even a very confident witness may be honestly mistaken. A very confident witness may be entirely wrong with respect to his or her identification evidence.

Eyewitness identification is a conclusion based on the witness’s observations. The reliability of the identification depends on the basis for the witness’s conclusion.

[148] The judge next invited the jury to "[c]consider the various factors that relate specifically to each eyewitness and their identification of Ryan Clark as the person who committed the assault that the Crown submits resulted in Chris Durocher’s death”. These were posed to the jury as questions. In relation to Mr. Williams’s testimony, the judge identified 18 questions jurors should ask themselves. In relation to Ms. Holmgren’s evidence, the judge identified 6 such questions. It was in the context of these questions that the judge conducted his principal review of the testimony of Mr. Williams and Ms. Holmgren.

D. The adequacy of the charge

[149] I begin with the simple, but important, observation that the judge did not give the jury the specific cautions about the evidence of Mr. Williams and Ms. Holmgren that, I conclude, the circumstances here demanded. The judge did not tell the jury, in the strongest terms, that it was required to approach Mr. Williams’s in-court identification evidence with extreme caution and explain to it why this is the case. The judge did not forcefully tell the jury that it could give virtually no weight to Mr. Williams’s in-court identification of Mr. Clark as the man he saw assault Mr. Durocher. The judge also did not caution the jury at all about Ms. Holmgren’s in-dock identification or instruct the jury that it would be very dangerous to attribute to Ms. Holmgren’s in-court identification of Mr.Clark any degree of certainty greater than what she had communicated to police on October 2, 2016.

[150] For the reasons I have already given, I conclude these were mandatory features of a charge in the circumstances of this case. Accordingly, I must conclude that the jury charge failed to adequately prepare jurors to carry out their fact-finding duties, unless it can be said that the charge equipped the jury in some other functional way to grapple with the significant inherent limitations to the in-court identifications that were made. In my respectful view, this function was not achieved in other ways.

[155] The closest that the questions jurors were asked to consider come to addressing the concerns that underpin Hibbert is the eighteenth, and last, question the judge posed in relation to Mr. Williams’s testimony. In this regard, the judge invited jurors to consider the following:

Had Mr. Williams expressed uncertainty about his identification? It would appear you could safely say that Mr. Williams was not as confident in his identification of Mr. Clark, as was Ms. Holmgren at the time of the trial.

[156] Of course, this instruction said nothing, directly at least, about the dangers of in-court identification evidence itself. Therefore, it does not directly address the specific reasons why Hibbert and the many cases following it have required that a special charge be given in relation to frail in-court identification evidence. However, the question did invite jurors to consider the confidence with which Mr. Williams and Ms. Holmgren testified. Problematically, though, it invited jurors to think in a way that is exactly opposite from what Hibbert requires.

[158] The situation here has many similarities to what occurred in R v Richards (2004), 186 CCC (3d) 333 (Ont CA), when the Court commented as follows:

[33] In his charge concerning the general frailties of eyewitness identification evidence, the trial judge told the jury that witnesses can be honest and convincing and yet be mistaken. Later, however, when discussing specific identification witnesses, the trial judge invited the jury to consider how sure they were of their identification. In reality, there is a “very weak link between the confidence level of a witness and the accuracy of that witness”: R. v. Hibbert, supra, per Arbour J. at p. 148. Indeed, certainty on the part of an honest identification witness is part of the reason that eyewitness identification evidence is dangerous. In my opinion, in the circumstances of this case, instead of mentioning certainty as a measure of reliability, it was incumbent upon the trial judge to explain the tenuous relationship between the confidence level of the identification witnesses and the accuracy of their evidence. Unfortunately, he did not do so.

(Emphasis added)

I would reach the same conclusion in this case.

[159] Considering all these factors, in my respectful view, the instructions given by the judge were not sufficient to fulfil the function that Hibbert demands in these circumstances.

[166] After the charge was delivered, Mr. Clark’s trial counsel raised concern that a Hibbert-like instruction had not been provided. The judge declined to call the jury back out of concern that delivering the warning at this point would act to Mr. Clark’s detriment. However, and with respect, this cannot serve as a justification for not giving the jury this caution in the first instance.

[170] In my respectful view, at the end of the day, the charge given to the jury did not fulfil the essential function of alerting jurors that Mr. Williams’s testimony had limited value for the purposes of identifying Mr. Durocher’s assailant, and that his in-court identification had no evidentiary value at all. The charge also did not fulfill the essential function of informing jurors of the problematic nature of Ms. Holmgren’s in-court identification of Mr. Clark and that it would be dangerous to attribute to Ms. Holmgren’s in-court identification of Mr. Clark any degree of certainty greater than what she had communicated to police on October 2, 2016.

VI. Conclusion

[171] For the reasons I have given, I respectfully conclude that the jury charge did not adequately equip jurors to deal with the frailties of the in-court eyewitness identification evidence in this case. For this reason, I would allow Mr. Clark’s appeal and order a new trial.

R v McDonald, 2022 ONCA 838

[December 1, 2022] Ineffective Assistance: the Right to Silence, Settlement Privilege and Providing Defence Statements to the Crown [Reasons by J. George J.A. with S.E. Pepall and A. Harrison Young JJ.A. concurring]

AUTHOR’S NOTE: Sometimes the assistance provided by lawyers to criminally charged persons truly boggles the mind. This case provides a master class in what never to do related to an accused's version of events. In sum, the lawyer provided a written statement of the accused to the Crown during settlement discussions before trial without insisting on settlement privilege. The Crown then crucified the accused on the stand and in argument using that very same statement. Defence counsel never got informed instructions for any part of this process. In effect, defence counsel breached the accused right to silence.  Settlement privilege allows discussions about the accused's version of events without such risk. Marking your communication "without prejudice" should identify it as subject to such privilege, objecting when it is presented in court is necessary, and in reality there should never be a need of you to provide a document written by your client about the incident to the Crown in settlement discussions - a letter from you outlining such version in hearsay should be sufficient. The only silver lining is that if counsel messes up to this degree, the ineffective assistance appeal writes itself.

George J.A.:

Overview

[1] The appellant was found guilty of aggravated assault and uttering a threat to cause death. The case turned on the trial judge’s credibility findings, particularly in relation to the testimony of three witnesses – the appellant, the complainant, and their mutual friend, Melody.

[2] The trial judge, while recognizing the deficiencies in the complainant’s testimony, preferred her evidence over that of the appellant. She further found that the appellant’s testimony did not raise a reasonable doubt.

[3] This appeal arises from the allegedly incompetent conduct of defence counsel, and how her improper disclosure of the appellant’s statement to the Crown, without the appellant’s knowledge or consent, impacted the trial judge’s assessment of his credibility....

Evidence at Trial

[4] The appellant and complainant were romantically involved for approximately two years prior to the events in question. During the last year of their relationship, they lived together in a condominium unit. They each have a young son with different partners. On November 5, 2016, Melody attended their residence to celebrate the complainant’s birthday. Melody spent the night, left for work early in the morning of November 6, and reattended later that evening sometime between 9:00 p.m. and 10:00 p.m.

Complainant
[6] The complainant testified that at around midday on November 6 she and the appellant began to argue about the security fob to their unit. According to her, the appellant – who did not have the fob in his possession – was upset because he and his son had to wait too long before the concierge allowed them access to their unit. According to the complainant, their argument began in the kitchen and continued in her son’s bedroom where the appellant grabbed her head and slammed it into a wall. She testified that the appellant punched her several times on the right side of her face with a closed fist, and that he stood over her while she was down and said, “next time, I’ll fucking kill you”. The complainant did not seek medical attention until November 8, two days later. Upon doing so, she learned that her jaw was broken. She had surgery to repair the broken jaw on November12. She reported the incident to the police a month later, on December 12.

[7] It is not disputed that the complainant provided several different explanations for how she suffered her injuries. She told her parents that she had been in a fight with another woman, which she repeated to the nurse who admitted her to the hospital on November 12, and to a social worker who interviewed her during her stay. She told the nurse who discharged her from the hospital that the appellant had not struck her. And, later in December 2016, before she provided a police report, she told the appellant’s aunt that she had been injured in a car accident. The complainant testified that the appellant instructed her to offer the car accident explanation should any family members inquire about her injuries.

Melody

[8] ...Melody testified that at around 2:00 p.m. on November 6, the complainant sent her an “SOS” text message. She then called the complainant, who was upset and crying. The complainant advised her that she had been “in a fight”, that her jaw was broken, and that she was in considerable pain. The complainant also sent Melody a photograph via text depicting her injuries. The complainant eventually told her that it was the appellant who struck her and caused the injuries. The complainant, however, implored Melody to not confront the appellant about this or to let him know that she had disclosed this to her.

[10] Melody testified that she did not discuss these events with the appellant until sometime in 2017, when, according to her, he said it was the complainant who had assaulted him.

Appellant
[11] The appellant testified that there was no dispute with the complainant about a security fob to their unit. He testified that at around noon on November 6, the complainant left the residence to run some errands with an unknown friend. According to the appellant, the complainant called him at 4:30 p.m., crying hysterically. He said the complainant told him that she had just been involved in a motor vehicle accident and that she had hit her face on the car’s dashboard and side window. He testified that when she finally returned home the complainant had visible injuries. The appellant said that while he encouraged the complainant to attend the hospital, she refused. He denied striking or threatening the complainant, and denied ever instructing the complainant to tell people she had been in a car accident. He also denied telling Melody that the complainant had assaulted him.

Ineffective assistance of trial counsel
[12] Before receiving Crown disclosure, the appellant’s trial counsel told him he “needed” to prepare a “statement” describing his background, relationship with the complainant, and his response to the allegations. The appellant followed his counsel’s instructions. Then, in the hope of securing an agreement to resolve the case by way of a peace bond, and after making some minor revisions, trial counsel disclosed this statement to the Crown. Counsel did not obtain written instructions from the appellant authorizing the disclosure, nor does her file contain any note, memo or docket capturing any discussion between her and the appellant about the statement’s purpose and what she was going to do with it. In fact, examination of trial counsel revealed that she did not discuss any of the following with the appellant: 1) settlement privilege; 2) the unlikelihood of a resolution (in a domestic assault case) that would allow him to enter into a bond in exchange for the charges being withdrawn; 3) how disclosing the statement to the Crown amounted to a waiver of his right to silence; 4) the specific risks associated with being cross- examined on the statement’s contents; and 5) the risks associated with preparing a statement before reviewing disclosure.

[13] In August 2018, and again close to trial in January 2019, counsel asked the appellant to prepare a second statement. He did so, covering essentially the same topics as his earlier statement, but with more detail. At trial, counsel handed up a copy of the statement to the bench and gave the appellant a copy to have with him on the stand as he testified. It was then that she alerted him, for the first time, that he would be cross-examined on its contents. Once Crown counsel realized that the appellant was reading from the statement, they objected, which led to the appellant returning it to counsel.

[14] During cross-examination the Crown relied heavily on the appellant’s initial statement, using it to draw the court’s attention to inconsistencies between its contents and his testimony. It appears as though the statement informed, and became an integral part of, the Crown’s theory that the appellant had concocted an exculpatory account and was therefore not credible.

Decision Below

[15] The trial judge – after citing the principles set out in R. v. W.(D.) – rejected the appellant’s testimony and found that it did not raise a reasonable doubt....

Fresh Evidence

[16] The appellant seeks to introduce fresh evidence to support his claim of ineffective assistance of counsel, including his affidavit sworn September 29, 2020; an affidavit from his appeal counsel’s legal assistant sworn September 25, 2020; an affidavit from the appellant’s trial counsel sworn February 16, 2021; an agreed statement of fact; and the transcripts of both the appellant’s and his trial counsel’s cross-examinations.

Analysis

B) Whether the appellant received ineffective assistance from his trial counsel

[23] The appellant bears the burden of establishing, first, the facts underlying the allegation; second, whether the facts, as found, establish that counsel provided ineffective assistance; and third, whether that assistance led to a miscarriage of justice: R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91.

Facts underlying the claim of ineffective assistance of counsel
[24] Very few facts are in dispute. As mentioned, trial counsel does not recall, and her file notes do not reflect, that she spoke to the appellant about settlement privilege or the waiver of the right to silence. Further, trial counsel confirms that at the Superior Court judicial pretrial she conceded the admissibility of the appellant’s initial statement, on his behalf but without his instructions, and never turned her mind to the correctness of the Crown’s position on privilege. She further acknowledges that, in preparation for trial, she did not “specifically [talk] about cross-examination on [the] statement” with the appellant.

[26] Moreover, trial counsel not only instructed the appellant to prepare the initial statement before he reviewed the Crown’s disclosure, at no point did she compare its contents with the disclosure, once it was received. The appellant’s evidence, which I prefer, is that counsel did not, before trial, advise him that he could be cross-examined on his statement, and only did so just before he took the stand. While trial counsel maintains otherwise, no materials in her trial file mention any such advice. I note also that the last-minute caution counsel did provide was only in respect of the second statement, and not the first, which is what the Crown used.

Do the facts support a finding that trial counsel’s assistance was incompetent?
[27] I agree with the appellant that his trial counsel’s representation fell well below the standard of a reasonable professional. She either did not appreciate – or did not want to take the time to investigate and inform herself about – the protection settlement privilege might afford the appellant.

[28] Perhaps more importantly, she made fundamental decisions without instructions. It was essential that the appellant understand that he enjoyed the right to silence and that he did not have to provide any information to the Crown. The appellant did not (and could not reasonably have been expected to) understand this, and trial counsel took no steps to ensure he did.

Did the appellant suffer a miscarriage of justice?
[29] The appellant submits that there are two clear instances of prejudice that arose from the ineffective assistance from his counsel. First, counsel’s failure to discuss with him the applicability of settlement privilege, waiving his right to silence, and his exposure to cross-examination; and second, her concession at the Superior Court judicial pretrial that the appellant’s statement was admissible.

[31] A miscarriage of justice can be the product of either trial unfairness or an unreliable result. Amongst other things, trial unfairness arises when counsel “[makes] certain decisions that should have been made by the accused person”. This typically relates to the core elements of a proceeding such as whether to plead guilty or not guilty, waiving the right to a jury trial, or whether to testify: R. v. Stark, 2017 ONCA 148; 347 C.C.C. (3d) 73, at paras. 16 and 17; R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at paras. 55-56. An accused must show more than simply the denial of a choice; they must also demonstrate a “reasonable possibility” they would have acted differently: R. v. White, 2022 SCC 7, 411 C.C.C. (3d) 419; R. v. McDonald, 2022 ONCA 574, at paras. 55-56. However, on this branch there is no need to establish an unreliable result: Fiorilli, at para. 57. As Doherty J.A. wrote in R. v. Joanisse, (1995) 102 C.C.C. (3d) 35 (Ont. C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347, at p. 62, “[a] reliable verdict may still be the product of a miscarriage of justice if the process through which that verdict was reached was unfair”. Conversely, the “unreliable result” branch requires that an appellant establish a “reasonable probability that, but for counsel’s unprofessional errors, the result would have been different”: Joanisse, at p. 64, citing Strickland v. Washington, (1984) 466 U.S. 668, at p. 698.

[32] I am of the view that counsel’s ineffective assistance led to a miscarriage of justice on both branches.

[33] To start, there can be no question that trial counsel unilaterally waived the appellant’s right to silence, and that the waiver led to the Crown having available the appellant’s statement, which better equipped its counsel to cross-examine the appellant. Put simply, the mere fact trial counsel did this, which impacted two core elements of the proceeding – i.e., waiving the right to silence by preparing and disclosing the statement, and the appellant making the decision to testify without understanding that the statement could be used to impeach him – is sufficient to allow the appeal.

[34] The right to silence is fundamental and intrinsically linked to the presumption of innocence, the right to make full answer and defence, and the right to a fair trial. It has been described as the “single most important organizing principle in criminal law”: R. v. P. (M.B.), [1994] 1 S.C.R. 555, at p. 577. As the Supreme Court has stated, “[I]t is up to the state, with its greater resources, to investigate and prove its own case, and ... the individual should not be conscripted into helping the state fulfil this task”: P. (M.B.), at p. 579. Trial counsel did precisely that: she conscripted the appellant into assisting in his own prosecution. She did this on the appellant’s behalf, but unbeknownst to him. In doing so, she deprived him of a fair trial.

[35] The bottom line is this. Trial counsel made decisions that had to be made by her client. Waiving the right to silence, and making an informed decision about whether to testify or not, were for the appellant to decide, and no one else. It is clear that there is at least a reasonable possibility the appellant, if given a real choice, would have taken a different course. Here, counsel’s incompetence was so pervasive, and her unilateral decisions on behalf of the appellant so contrary to any notion of trial fairness, that appellate intervention is necessary. The appellant’s trial was in fact, and in appearance, unfair.

[36] As for the reliability of the verdict, consider this portion of the Crown’s closing address:

...His explanation for why his statement differed from his testimony in several respects did not strike [me] as honest. The Crown also submits that his testimony evolved as it went on. He said that he recalled things spontaneously, but in some cases these things came up after a more direct question or even after a break in court. In the Crown’s submission, [the accused’s] testimony did not present as an honest and forthright recall but, rather, a carefully crafted story.

[37] The trial judge, while not specifically citing the 2017 statement, accepted the Crown’s submission and rejected the appellant’s evidence altogether....

[38] While it is a relatively high burden to establish a reasonable probability that the result would have been different, we must remember that a ‘reasonable probability’, in this context at least, means a probability sufficient to undermine confidence in the outcome: Strickland, at p. 698. This of course is more than a mere possibility, but far short of certainty. In Joanisse, Doherty J.A. described it as “less than a likelihood”....

[39] For these reasons, I accept that the appellant’s trial was unfair, that the verdict is unreliable, and that the ineffective assistance of the appellant’s trial counsel gave rise to a miscarriage of justice.

Disposition

[47] For these reasons, I would allow the appeal, set aside the convictions, and order a new trial.

R v Edama, 2022 ABCA 394

[December 5, 2022] NCR: Review Board and Obligation to Consider Absolute Discharge [Crighton, Strekaf, and Khullar JJ.A.]

AUTHOR’S NOTE: This case reinforced the obligation of the Review Board to "search out and consider evidence favouring his or her absolute discharge." Too often in the history of treatment of persons designated Not Criminally Responsible, the punishment for such a designation has extended beyond the punishment they would have served had they simply pled guilty to the offence as charged. The underlying facts of this case show exactly how such a thing could happen with Review Boards maintaining control over the liberty of people who are not dangerous to themselves or the community at large. This case is part of a series of ABCA cases that tries to remind the Board to comply with its legal obligations when it comes to absolute discharges. 

The Court

[1] This is an appeal from a disposition made by the Alberta Review Board on April 13, 2022, pursuant to section 672.54 of the Criminal Code. The Review Board concluded that the appellant is a significant threat to the safety of the public and, as such, not entitled to an absolute discharge under s 672.54(a). The appellant had been granted a conditional discharge following his hearing by the Review Board on May 21, 2021. The Review Board revoked the conditional discharge following the April 13 hearing and ordered the appellant be placed under full warrant committal residing in a supervised group home.

[2] This appeal is the latest in a series of decisions reviewed by this Court where an accused found not criminally responsible (NCR accused) on account of mental disorder under s 672.34 of the Criminal Code challenges the reasons and disposition of the Alberta Review Board for finding him or her to remain a significant threat to the safety of the public under s 672.54: R v Jones, 2019 ABCA 313, 378 CCC (3d) 77; R v WCR, 2019 ABCA 170, 91 Alta LR (6th) 231; R v Ferzli, 2020 ABCA 272, [2020] AJ No 775 (QL); R v HMH, 2021 ABCA 118, 404 CCC (3d) 71; R v Leonce, 2021 ABCA 270, [2021] AJ No 1018 (QL). Those cases have emphasized that when applying the framework for a disposition under s 672.45 set out in Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625, [1999] SCJ No 31, the Alberta Review Board must itself grapple with whether the NCR accused is at the time of the hearing a “significant threat to the safety of the public”.

[3] While the Review Board is a specialized, expert body and its decisions are owed deference, the Review Board's reasons must be able to withstand a "somewhat probing examination" to determine whether the decision is justifiable, transparent, and intelligible: Gibson (Re), 2022 ONCA 527 at para 10, [2022] OJ No 3193 (QL). It is never sufficient for the Review Board to recite the recommendations of the treatment team and accept them as being dispositive of the test without assessing that opinion against the evidence and analyzing the significant risk test as it relates to the mental health of the NCR accused and the risk posed to the public: HMH at para 31; Leonce at para 60. A conclusory statement that the appellant represents a significant risk to the safety of the public is insufficient: WCR at para 5.

[6] The appellant initially resisted the diagnosis but now accepts he has a mental illness – schizophrenia – that requires life-long medication. He denies there is a history of serious violence associated with it or his cannabis use. The record shows that over the course of his life, he has only been involved in two incidents that have involved violence, both occurring in 2014: one being his index offence in October of 2014, where he bit a security guard while being restrained on a psychiatric unit in hospital; the other earlier in August 2014 when he and a friend became embroiled in a physical altercation which the friend had initiated but which result in the appellant slashing his friend with a boxcutter which required stitches. The only other act of physical aggression reported by the treatment team appears to have occurred sometime during the reporting period October 2017 and July 2018 when Dr Manuwa reported that Mr Edama “took a swing at a staff member” while on unit 3-5. No other details are provided on that incident.

[7] At the appellant’s annual review on May 21, 2021, his treatment team assessed his overall risk to the public as moderate if he were to be granted an absolute discharge and stated that his history suggested he is more likely to manifest violence as a defensive or reactive measure in response to a perceived threat. Based on the evidence at the hearing, the Review Board granted the appellant a conditional discharge and directed he be moved out of the hospital immediately, stating in its reasons that administrative convenience was not an acceptable reason to keep him residing in the hospital.

[8] After a series of positive drug tests, the appellant voluntarily returned to hospital and was then transitioned back to Journey Home. In November 2021, because of his positive drug tests, the treatment team sought an earlier review that was originally scheduled for February 2022. The hearing proceeded on April 13, 2022. At the time of the hearing, the appellant’s drug tests were negative, and he was reported to be medication compliant. He had not experienced any symptoms of psychosis since late 2018 and there is agreement that his mental illness is now in remission.

[9] At the April 13, 2022 review hearing...

...the treatment team’s conclusion was:

A review of his history suggests Mr. Edama is unlikely to engage in aggression or violence unless he is experiencing symptoms of psychosis. Mr. Edama’s history demonstrates that when psychotic he can develop paranoid delusional beliefs and respond in a violent manner. Mr. Edama’s history indicates he decompensates in the context of cannabis use or medication non-compliance, or a combination of these factors.

Finally, we note that over a period of five months, Mr. Edama has breached Board conditions on four occasions. Given the knowledge that substance abuse significantly elevates the risk of violent offending, and in light of that fact [that] Mr. Edama’s illness makes him susceptible to cannabis abuse, Mr. Edama clearly poses a significant threat to the safety of the public and this risk has increased with his ongoing cannabis use.

[10] The treatment team told the Review Board that the appellant’s risk for future violence is high, but that the likelihood of serious physical harm to others is moderate and the likelihood of imminent violence was low. The Review Board accepted the risk assessment. A moderate and low threat of resulting harm is not a significant threat of serious harm, and it is “not merely semantics to say that a finding of a "moderate risk" is not a finding of "a significant threat to the safety of the public" as explained in s. 672.5401 of the Criminal Code as meaning "a risk of serious physical or psychological harm to members of the public”: Leonce at para 72.

[11] The Review Board’s reasons contain no analysis of the significant risk test as it related to the mental health of the appellant and the risk posed to the public; rather, the Review Board simply accepted the opinion of the treatment team without assessing that opinion against the evidence.

[12] ...The previous relapse by the appellant into cannabis use in the fall of 2021 was brief, did not involve violence, and he did not destabilize mentally at that time. Nor is there any evidence linking the appellant’s cannabis use to episodes of violence: as stated earlier, the appellant’s history suggests he is more likely to manifest violence as a defensive or reactive measure in response to a perceived threat, and not because of his abuse of cannabis. There are only two established episodes of violence in the appellant’s history, both of which occurred in 2014. Finally, the test is not whether the appellant's behaviour could lead to decompensation and therefore the risk of serious harm, but whether there is evidence to support a positive finding that there is a significant threat to public safety.

[13] What the evidence does tend to show is that cannabis use, in combination with medication non-compliance, makes the appellant unwell. There is scant, if any evidence, that the combination of factors makes the appellant violent.

[14] Moreover, the evidence does not support the suggestion that the appellant is medication non-compliant. The reports show that the appellant has consistently been taking his medication for over two years now, and the only evidence indicating some medication compliance problems were reports from the group home staff that they needed to remind him several times to take his medication. The appellant’s reasons for resisting a depot injection appear to be due to unpleasant side effects he experienced and not because of his resisting to taking anti-psychotic medication. Preferring an oral form of medication over an injectable form is not evidence that the appellant is a significant danger to the public.

[16] It is not appropriate for the treatment team or the Review Board to treat "full warrant detention" as the default provision to provide the hospital with maximum flexibility in dealing with the accused: WCR at para 8. The Review Board cannot detain an NCR accused simply because it believes that hospital confinement is in the best interests of the accused, or most conducive to his health care or treatment plan. Convenience is not the test, and a burdensome individual does not for that reason alone present a significant threat to the safety of the public. Even if the Review Board finds that an absolute discharge might not be in the appellant’s best interests, that does not justify his continued supervision under Part XX.1 of the Code: Sim (Re), 2020 ONCA 563 at para 65, [2020] OJ No 3808 (QL), Pellett (Re), 2017 ONCA 753 at para 32, [2017] OJ No 5025 (QL), citing R v Ferguson, 2010 ONCA 810 at para 45, 264 CCC (3d) 451. The Review Board is tasked not only to search out and consider evidence favouring restricting an NCR accused, but also to search out and consider evidence favouring his or her absolute discharge: Gibson at para 18. In our view, the Review Board did not sufficiently consider that the "significant threat" standard is an onerous one, failed to take into account several pieces of cogent evidence, and failed to consider the community and family support that is available to this appellant.

[17] ...A decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis: Vavilov at para 103.

[18] In this case, absent any analysis, there is no contextual reading of the brief and conclusory reasons offered by the Review Board that satisfy the objectives that reasons are intended to meet. In our view, the Review Board's reasons fail to explain how the appellant's current mental health and functioning, together with the relatively lack of a violent history or medication non- compliance, led it to conclude he posed a significant risk of harm to the safety of the public.

[19] This Court may set aside an order of the Review Board where it is of the opinion that: (a) the decision is unreasonable or cannot be supported by the evidence, or (b) where the decision is based on a wrong decision on a question of law, or (c) where there has been a miscarriage of justice: R v Owen, 2003 SCC 33 at para 31, [2003] SCJ No 31 (QL); Leonce at para 52; s 672.78(1) of the Criminal Code. On this record, the Review Board’s conclusion that the appellant presented a significant threat to the safety of the public was unreasonable.

[20] In our view, the Review Board failed to consider evidence favouring an absolute discharge and had it done so, it could not have concluded the appellant presents a significant threat to the safety of the public. There is no doubt the appellant has ongoing mental health issues that he has acknowledged. His mental health condition is not determinative of his risk. The appellant has had relapses in using cannabis contrary to the conditions placed upon him and has become irritable and perhaps agitated. This falls short of the serious risk that goes beyond the merely trivial or annoying that is required to justify restricting the appellant’s liberty. The appeal is therefore allowed.

[22] A fair and reasonable assessment of the evidence before the Review Board leaves this Court unable to conclude that the appellant continues to be a significant threat to the safety of the public. In the result, the statutory and legal bases for continuing the conditional discharge have not been established. The appellant is entitled to an absolute discharge, which is granted.

MODERN CRIMINAL EVIDENCE

By Matthew Gourlay, Brock Jones, Renee Pomerance, Glen Crisp & Jill D. Makepeace

The first treatise to provide a truly practical and comprehensive guide to criminal evidence law in Canada. This casebook guides readers through evidentiary issues in all components of criminal law, providing indispensable insight from Crown, defence, and judicial perspectives.

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