The Defence Toolkit – February 9, 2020

This week’s top three summaries: R v Huerta, 2020 ONCA 59, R v Fischer, 2020 ABQB 67, and R v McElwain, 2020 ONSC 344.

R v Huerta (ONCA)

[Jan 30/20] Fallibility of Identification Evidence - Similar Fact Evidence as a Sword for the Defence - 2020 ONCA 59 [Reasons by J.A. Thorburn J.A. with G. Pardu J.A. and  L.B. Roberts J.A. Concurring]

AUTHOR’S NOTE: Identification evidence is notoriously fallible and courts regularly recognise it as such.  This case is the most recent pronouncement on the issue from the Ontario Court of Appeal.  In frightening turn of events, the accused in this case was convicted of offences involving complainants that either could not point him out in a photo lineup or were simply not asked to do one. It is a reminder to counsel that the risk of conviction remains high when courts refrain from pointing the fallibility of eye witness identification AND the importance of individual distinguishing features establishing a lack of identification. The difficulties here with lack of instruction on generic identification evidence and distinguishing features was such that the verdict was found to be unreasonable and an acquittal was substituted.

One particularly interesting feature of this case was that the court used the similar fact application to apply the "distinctive feature" observation of one of the complainants to the generic identification evidence of the others.  In this way, the similar fact application aided the accused to obtain an acquittal on other counts on appeal. 

Overview

[1]         The appellant, Humberto Dapena Huerta, was indicted on eight counts arising from six incidents involving six complainants. The charges included criminal harassment, sexual assault, and sexual interference. All six incidents took place within a radius of 2.7 kilometres, which includes downtown Richmond Hill.

[2]         The central issue at trial was the identity of the perpetrator.

[3]         The Crown’s theory was that Mr. Huerta loitered near schools and parks in Richmond Hill to run at and grope young-looking women.

[4]         Each of the six complainants testified. The Crown was permitted to lead cross-count similar fact evidence.

[5]         The Crown also led evidence of three educators (the “educators”) who claimed they saw a man near the school they worked at who resembled the composite sketch released by the York Regional Police. The composite was prepared with the assistance of one of the complainants, J.A. At least two of the three educators testified that the man resembled the composite, he was a suspicious person, and they called 9-1-1 as a result.

[6]         During the trial, Mr. Huerta conceded he was the man the educators saw near the school, but denied he was the perpetrator of the charges.

Identification Evidence that Led to Three Convictions

[11]      The four incidents resulting in convictions are as follows:

1. a) F. was 16 years old. She was walking in a residential area when she noticed a man standing near a car, who began following her. The man walked away from her but when she glanced back, she saw him running toward her. N.F. began to cry and called her mother. The perpetrator never got closer than a metre from her and she only saw him in profile.
2. b) C. was 51 years old but could have been mistaken for a much younger person due to her small stature. J.C. was walking near a high school. She noticed a man across the street and soon thereafter, heard someone running behind her. A man grabbed her and wrapped his arms around her abdomen. He slipped on the snow and they both fell to the ground while he was still holding her tightly. J.C. was on top of the man with her back to his front, the man pushed her aside, said “sorry” and left. J.C. did not get a good view of his face.
3. c) A. was 15 years old. She was walking to a school and saw a man jogging toward her. She tried to get out of the way, but he grabbed her aggressively around the waist and tried to push her to the ground. When he was unable to push her to the ground, he lifted up her skirt, touched her upper thigh, and jogged away. J.A. said she was “face-to-face with the man” just before he grabbed her and got a “relatively good look at his face.”

[12]      The Crown’s identification evidence from the three complainants whose complaints resulted in convictions was as follows:

[19]      Mr. Huerta is a Caucasian male in his 40s or 50s, of medium build, just over five feet nine inches tall. He has short dark hair with white at the edges and smooth facial skin with deep ridges near his nose and mouth. He does not have pockmarks on his face. Mr. Huerta’s brother testified that Mr. Huerta did not have facial hair during the relevant period and that he would typically not be unshaven.

[20]      Mr. Huerta drove a black Honda Civic with all-weather tires with silver rims, the windows were clear, and there was rust on the rear fender. He resided within a 2.7 km radius of the incidents, about 23 square kilometres.

Prejudicial Identification Evidence of the Educators

[22]      The educators saw the composite and thought they recognized the person they had seen near the school as the person in the composite. The evidence of the educators that Mr. Huerta resembled the person in the composite should not have been left with the jury for the purpose of establishing the identity of the perpetrator because:

a) The educators were not eyewitnesses to an offence, rather they thought they saw someone who resembled the image in the composite sketch. The sketch showed a person with deeply pockmarked cheeks – a feature that the appellant does not have;

b) By the end of the trial, the appellant conceded he was in the park on the day the educators saw him, and their evidence was therefore unnecessary to prove this admitted fact;

c) The educators’ evidence that the appellant was “suspicious” was highly prejudicial. He was not doing anything wrong in attending a public park, which was not a location where any of the complainants reported difficulties; and

d) The marginal relevance of this evidence to the issue of identity was outweighed by its prejudicial effect.

Legal Principles - Adequacy of Jury Instructions on Extrinsic Misconduct

[25]      Misdirecting or failing to direct a jury on the use to be made of evidence is an error of law: R. v. Crawford; R. v. Creighton, 1995 CanLII 138 (SCC), [1995] 1 S.C.R. 858, at pp. 884-86.

[26]      As noted by Watt J.A. in R. v. J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 53, 

Where evidence of extrinsic misconduct is admitted exceptionally in a criminal jury trial, the chief work of mid-trial and final instructions is prophylactic: to confine jury use of this evidence to its permitted purpose and to abjure prohibited reasoning. These limiting instructions, whether given as mid-trials or as finals, should contain three elements:

i. a description of the evidence to which the instruction applies;

ii. a positive instruction advising the jury about the use they may make of the evidence (the permitted use); and

iii. a negative instruction directing the jury about the use they must not make of the evidence (the prohibited use). [Citations omitted.]

The Educator Evidence Instruction

[30]      With respect to the educators’ evidence, the jury should have been instructed:

a) That the educators’ evidence on the issue of the similarity between the person they saw and the image in the composite was not admissible for the purpose of establishing the identity of the perpetrator;

b) A.’s composite was exculpatory evidence, as there were prominent pockmarks on both cheeks, which Mr. Huerta does not have;

c) The educators’ evidence that the appellant was “suspicious” should not have been admitted. At the very least, the jury should have been told this evidence was not relevant to the issue of whether the appellant was the perpetrator of any of the offences charged.

[31]      The jury was not given these instructions. Without them, it is not clear the jury would have understood what use they could and could not make of this evidence.

[32]      The Crown points out that counsel did not object to the charge at trial. However, a legal error remains a legal error even if counsel does not object: R. v. Forde, 2011 ONCA 592, 277 C.C.C. (3d) 1, at para. 61.

Jury Instructions on Eye-witness Evidence

[33]      Trial judges must instruct juries on the general and specific dangers of eyewitness evidence. In R. v. Lewis, 2018 ONCA 351, at para. 18, Sharpe J.A., for the court, held that a new trial was warranted where a trial judge failed to direct the jury’s attention to the specific frailties posed by eyewitness evidence. He cautioned that it is not enough to give a general caution relating to eyewitness identification:

[T]he trial judge must convey to the jury the judicial experience that eye-witness evidence poses serious dangers. The trial judge must identify for the jury "any specific weaknesses" in the eyewitness identification evidence and warn the jury not only of the general dangers of identification evidence, but also of the specific dangers arising in the circumstances of the particular case.

[34]      Such cautions are necessary because of the dangers posed by eyewitness identification evidence, which was explained by this court in R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234, at para. 29:

Eyewitness identification is inherently unreliable. It is difficult to assess, is often deceptively reliable because it comes from credible and convincing witnesses and is difficult to discredit on cross-examination for those same reasons. Studies have shown that triers of fact place undue reliance on such testimony when compared to other types of evidence. As a result, many wrongful convictions result from faulty, albeit convincing, eyewitness testimony, even in cases where multiple witnesses identify the same person.

[35]      Trial judges should instruct juries that when an eyewitness fails to mention any “distinctive feature of the accused”, the reliability of an eyewitness identification may be called into question. In R. v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, at paras. 16 and 27, Epstein J.A. emphasized that,

[T]he jury must be instructed to carefully scrutinize the witness’ description of the assailant: Was it generic and vague, or was it a detailed description that includes reference to distinctive features of the suspect? In some cases, the failure to mention distinctive characteristics of a suspect is sufficiently important, especially where there is no other inculpatory evidence, to reduce the case from one of identification effectively to one of no identification.

[36]      When generic eyewitness description is coupled with the failure of the eyewitness to identify the accused as the perpetrator, further instruction may be warranted. In R. v. Vassel, 2018 ONCA 721, 365 C.C.C. (3d) 45, at para. 186, Watt J.A. advised,

where a witness has provided a generic description of a perpetrator, a description that generally fits the accused among others, but does not identify the accused as the perpetrator, it may be necessary for a trial judge to instruct the jury that the mere fact that the accused fits the generic description does not, on its own, permit the jury to conclude that the accused is the perpetrator. [Emphasis added.]

[37]      When an eyewitness describes distinguishing features, the trial judge should instruct the jury as to the “potential importance of any significant discrepancy between the description of the [perpetrator] provided” and the person’s actual appearance: R. v. Savoury (2015), 2005 CanLII 25884 (ON CA), 200 C.C.C. (3d) 94 (Ont. C.A.), at para. 14. After doing so, the jury is entitled to decide the extent and significance of inconsistencies in the description of the perpetrator and the accused.

Application to the Facts

[39]      In this case, the trial judge conveyed the general dangers of eyewitness evidence, but she erred by failing to identify specific weaknesses in the eyewitness identification evidence and the dangers in this case. Specifically, the trial judge did not properly instruct the jury on how to assess the reliability of the evidence of N.F. and J.C. The trial judge should have pointed out that much of their evidence was generic and that they did not mention distinguishing features. This is a badge of unreliability, as described in Jack, at para. 29.

[41]      Nor did the trial judge highlight exculpatory, distinctive features. The distinguishing feature provided by J.A., the only complainant who got a good look at the perpetrator’s face, was exculpatory, as Mr. Huerta did not have pockmarks on his face. There was also other evidence in respect of the perpetrator that conflicted with Mr. Huerta’s appearance and person, such as C.O.’s testimony that the perpetrator had a moustache and C.C.’s observation that he had a Russian accent.

[42]      Some of the particulars about the vehicle described by N.F. are also inconsistent with those of the car Mr. Huerta drove. While the car N.F. described was an “older Japanese car” with rust on it, the rust was not on the doors as N.F. testified, nor did it have tinted windows, winter tires, or black rims. The car he drove had all-season tires with silver rims, the windows were not tinted, and the rust was not on the doors but on the rear fender close to the tire. The trial judge should have highlighted these discrepancies: see Savoury, at para. 14.

Unreasonable Verdict - Principles

[45]      The issue is not whether the verdict was possible but whether it was reasonably available on the evidence. A verdict is unreasonable if “a properly instructed jury, acting judicially could not have come to that verdict”: R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503, at para. 30.

[46]      To determine whether a verdict was reasonable, an appellate court must not merely ask whether twelve properly instructed jurors, acting judicially, could reasonably have come to the same result, but do so through the lens of judicial experience, which serves as an additional protection against an unwarranted conviction: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15, 143 C.C.C. (3d) 1, at para. 39.

[47]      Section 686(1)(a)(i) of the Criminal Code provides for limited appellate review of the sufficiency of the evidence, as the court owes deference to the jury who saw and heard the evidence. However, the review contemplated under s. 686(1)(a)(i) is not limited to a determination of whether there was any evidence to support the conviction.

[48]      Where the verdict is said to be unreasonable or not supported by the evidence, the appellate court must engage in a limited weighing of the evidence, independently examine and assess the evidence adduced at trial, and reach its own conclusion: R. v. Hafizi, 2019 ONCA 2, 373 C.C.C. (3d) 264, at para. 27; R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 27-28. An appellate court should set aside a conviction if the verdict cannot be supported by the evidence: see Criminal Code, s. 686(1)(a)(i).

Application - Unreasonable Verdict

[51]      In this case, most of the evidence regarding the perpetrator’s physical description was generic. All six complainants described the perpetrator as Caucasian, most said he was of medium build, between five feet nine inches and six feet tall, and five of the six said he was in his 40s or 50s. All of the complainants whose complaints resulted in convictions described him as having greyish or salt and pepper hair and sporting sunglasses.

[52]      However, three specific distinctive features noted were inconsistent with Mr. Huerta’s description: (1) he had no prominent pockmarks on his face; (2) he did not speak with a Russian accent; and (3) he did not sport a moustache.

[53]      The same was true of Mr. Huerta’s car. While he did drive an older Japanese car: (1) the windows were not tinted; (2) his vehicle had all-weather not winter tires; (3) it had silver rims not black rims; and (4) the rust spots were in different places on the car than described by N.F.

[56]      I will now explain why all four convictions should be substituted with acquittals.

The Convictions re J.A.

[60]      While some of the generic evidence J.A. provided is similar to generic evidence of other witnesses, J.A. described the perpetrator as having distinctive features, which Mr. Huerta does not have. The cumulative effect of the following facts leads to the conclusion that there is insufficient evidence upon which the jury could have been satisfied of Mr. Huerta’s guilt beyond a reasonable doubt and convicted on the charges of sexual interference and sexual assault of J.A.:

c) The composite has distinctive pockmarks, a feature that dominates the composite;

d) A., unlike the other complainants in this proceeding, was approached by the perpetrator from the front and she said she got a good look at him;

e) Huerta does not have any pockmarks on his cheeks.

The Convictions re N.F. and J.C.

[63]      Both N.F. and J.C. testified that they did not get a good look at the perpetrator. N.F. testified that she only saw the perpetrator in profile and never from closer than one metre away. J.C. testified that she did not get a good look at the perpetrator.

[64]      Neither was able to identify Mr. Huerta from a photo line-up.

[67]      Where similar fact evidence is allowed, the trier of fact may use the evidence from one count on which there was an acquittal to assess an accused’s liability on other counts: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 79; R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at paras. 66-72.

[68]      This evidence however, is exculpatory in many respects, as it attributes distinctive features to the perpetrator not shared by the appellant, such as a moustache, Russian accent, and pockmarks.

[69]      For these reasons, looking at all of the evidence, there is insufficient evidence upon which a reasonable jury could be satisfied beyond a reasonable doubt that the appellant was the perpetrator of the offences involving N.F. or J.C. I would therefore enter acquittals on those counts as well.

R v Fischer (ABQB) 

[January 27/20] Charter s.7 - Disclosure - Witness Protection Program - 2020 ABQB 67 [L.R.A. Ackerl J.]

AUTHOR’S NOTE: Often, witnesses entering Witness Protection have numerous credibility/reliability to problems to deal with.  One important one is that the WPP usually provides them with various benefits that then turn into a reason why they would want to provide evidence against the accused.  Obviously, this evidence is very useful to defence counsel seeking to discredit them.  Herein, Justice Ackerl provides the analysis that one must go through to get access to these records on a disclosure application.  It was found to properly form first party disclosure.  It is noteworthy that the Witness Protection Program at issue was run by the RCMP while the prosecution was one where the primary investigating agency was the Edmonton Police Service.

Overview

[1]               The four Accused are charged with the first degree murder of Kevin Yellowbird. A Crown witness, C.P., was accepted into emergency protection with the Witness Protection Program (WPP). Ultimately, she refused formal program entry but received limited assistance under an alternate aid arrangement (AAA) administered by the RCMP. This arrangement falls within WPP ambit.

[2]               Collectively, the Accused seek disclosure of related documents. They argue, based upon s 7 of the Canadian Charter of Rights and Freedoms, that disclosure is necessary for full answer and defence. In particular, they submit such records bear directly upon Ms. P.’s witness credibility and reliability.

[3]               As observed in R v Gubbins, 2018 SCC 44 at para 29:

... two different regimes govern disclosure in criminal cases. First party disclosure, as set out in Stinchcombe and supplemented by the duties on the Crown and the investigating police in McNeil, requires disclosure of all relevant information upon request. If the Crown refuses disclosure, it bears the burden to show that the information is clearly irrelevant. Third party disclosure per O’Connor requires an application to the court for third party disclosure (where the records sought do not fall under first party disclosure) for which the defence bears the burden to show that the record is likely relevant. In both instances, the purpose is “[to protect] an accused person’s right to make full answer and defence, while at the same time recognizing the need to place limits on disclosure when required”: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 115. Such limits include avoiding fishing expeditions.

[4]               The defence contends the requested records are first party disclosure and, as such, disclosable pursuant to R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] SCJ No 83.

[5]               In response, the Crown does not contest (at this time), that WPP records are not disclosable. However, the Crown argues the records are third party documents. Accordingly, disclosure is governed by R v O’Connor, 1995 CanLII 51 (SCC), [1995] SCJ No 98.

Pertinent Facts

[8]               Ms. P.’s involvement with the WPP is described in Affidavit paras 13-18:

13.      On November 1, 2017, the RCMP Edmonton Major Crime unit (EMCU) requested the Federal Witness Protection Program consider admitting Ms. P. into the program.

14.      On November 15, 2017, WP coordinators interviewed Ms. P. to assess her suitability to enter the WPP.

15.      The WPP was solely responsible for decisions regarding protective measures to be provided to Ms. P. EMCU had no involvement in assessing whether such measures should be provided. Based on my review of the file, Ms. P. did not at any time ask to receive protective measures in exchange for providing evidence concerning this or any RCMP investigation. Ms. P. also was not offered protective measures in exchange for evidence. On January 9, 2018, EMCU made arrests for the murder of Kevin Yellowbird and Ms. P.’s identity as a cooperating witness was disclosed. On the same date, Ms. P. entered Emergency Protection with the WPP.

17.      On February 23, 2018, Ms. P. was offered limited assistance under a formal alternate aid arrangement (AAA) providing for alternate methods of protection separate from the statutory protection the RCMP provides to witnesses admitted to the WPP.

18.      On September 1, 2018, the final financial disbursement was made to Ms. P. on the AAA, hence ending the arrangement between Ms. P. and the WPP.

[9]               The Affiant was made available for cross-examination during this voir dire. By consent, and pursuant to Criminal Code s 486.31, he testified under the pseudonym Staff Sergeant John Doe. This witness stated:

a)                  Information involving WPP involvement with Ms. P. is completely contained in an electronic database accessible only by WPP coordinators and handler(s).

b)                  This database does not contain information provided by the police agency (EMCU) investigating the alleged offence.

d)                 On January 9, 2018, Ms. P. was entered into emergency protection with the WPP. That admission did not constitute formal entry into the WPP.

h)                  Ms. P. did not receive financial compensation as an AAA participant. She did receive funding for certain expenses such as housing. Such funding was for a limited time period.

i)                    The Affiant, as a general observation, agreed access to AAA funding may improve the witness’ quality of life.

Disclosure - Principles

[10]           In R v Gubbins, the Court articulated the analysis for determining whether the Stinchcombe or O’Connor disclosure regimes apply. At para 33, the Court stated:

Based on the previous discussion of disclosure regimes, to determine which regime is applicable, one should consider: (1) Is the information that is sought in the possession or control of the prosecuting Crown? and (2) Is the nature of the information sought such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown? This will be the case if the information can be qualified as being part of the fruits of the investigation or obviously relevant. An affirmative answer to either of these questions will call for the application of the first party disclosure regime.1 Otherwise, the third party disclosure regime applies. For the reasons that follow, the maintenance records are subject to third party disclosure.

[11]           In R v Jennings, 2018 ABQB 105, Shelley J addressed the appropriate disclosure regime for disclosing WPP records. That decision accounted for the Gubbinsanalysis. It also helpfully summarized and applied the impact of the Supreme Court of Canada’s decisions in R v Stinchcombe and R v Quesnelle, 2014 SCC 46.

[12]           Shelley J noted at paras 17, 20 and 18:

[20]      McNeil described two categories of first party information that the police authorities were required to provide to the Crown: “fruits of the investigation” and police information about police officers related to the investigation that could reasonably impact on the case against the accused and which was relevant to the credibility or reliability of the evidence. It went on to describe the Crown’s duty to “bridge” the gap between first party and third party disclosure when the Crown becomes aware of relevant information, saying (at paras 49, citing R v Arsenault (1994), 1994 CanLII 5244 (NB CA), 153 NBR (2d) 81 (CA), and 50):

Crown counsel have a duty to make reasonable inquiries of other Crown agencies or departments that could reasonably be considered to be in possession of evidence. Counsel cannot be excused for any failure to make reasonable inquiries when to the knowledge of the prosecutor or the police there has been another Crown agency involved in the investigation...

The same duty to inquire applies when the Crown is informed of potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case.

Analysis of the WPP Disclosure in the Case

[13]           It is undisputed that the requested records are not in the possession or control of the prosecuting Crown. I agree. The records are entirely contained within the RCMP WPP database with access restricted to designated WPP staff.

14]           This issue requires two separate inquiries. Namely, were the records “fruits of the investigation” or, are they “obviously relevant”. An affirmative response to either question classifies the records as first party documents disclosable pursuant to R v Stinchcombe.

[15]           In R v Gubbins (para 22) the Court defined “fruits of the investigation” as referencing:

... [police] investigative files, as opposed to operational records or background information. This information is generated or acquired during or as a result of the specific investigation into the charges against the accused. Such information is necessarily captured by first party/Stinchcombe disclosure, as it likely includes relevant, non-privileged information related to the matters the Crown intends to adduce in evidence against an accused, as well as any information in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make full answer and defence. The information may relate to the unfolding of the narrative of material events, to the credibility of witnesses or the reliability of evidence that may form part of the case to meet.In its normal, natural everyday sense, the phrase “fruits of the investigation” posits a relationship between the subject matter sought and the investigation that leads to the charges against an accused.

[16]           The Accused argue WPP records were acquired as “a result of this” police investigation. I disagree. WPP policy expressly recognizes that witness contact is not purposed “to gather or discuss evidence”. The records lack an evidentiary link to police investigation of the underlying charges. I find, the requested records are operational documents compiled solely for WPP purposes which are expressly “separate and distinct from all RCMP operations that perform investigative functions”.

Is the Information Obviously Relevant?

[18]           As stated in R v Gubbins (para 23):

... The phrase “obviously relevant” should not be taken as indicating a new standard or degree of relevance ... Rather, this phrase simply describes information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence. ...

[19]           At para 18 the Court summarized disclosure duties and purposes previously articulated in Stinchcombe and R v Dixon, 1998 CanLII 805 (SCC), [1998] 1 SCR 244:

In R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, this Court held that the Crown has a duty to disclose all relevant, non-privileged information in its possession or control, whether inculpatory or exculpatory. This is referred to as first party disclosure. The Crown’s duty to disclose corresponds to the accused’s constitutional right to the disclosure of all material which meets the Stinchcombe standard: R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 22. The purpose of disclosure is to protect the accused’s Charter right to full answer and defence, which will be impaired where there is a “reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence”: ibid.

[20]           As noted in R v Gubbins, police have a duty to disclose “all material pertaining to its investigation of the accused: McNeil, at paras 23 and 52. That obligation extends beyond the fruits of the investigation where such information is “obviously relevant to the accused’s case”: McNeil, at para 59.

[21]           In R v McNeil, 2009 SCC 3 at paras 36-39 the Court recognized that true relevance must be contextually assessed.... Accordingly, I disagree with RCMP counsel that generally, WPP records are not, by their nature, obviously relevant. Rather, this determination demands a contextual analysis involving the case against these Accused.

[24]           Evidence adduced on this application revealed Ms. P. received funding under the AAA regime. Staff Sergeant Doe also recognized that program funding may improve the lifestyle quality of a program participant. Such funding was ongoing during her preliminary inquiry testimony and concluded shortly thereafter. These records may have a significant impact upon Ms. P.’s credibility and reliability as a trial witness. Most obviously, they may inform her motivation to testify in this case.

[25]           Although unnecessary to my conclusion, I note evidence was adduced on R v Jennings (para 9) that a psychological assessment of the WPP applicant was conducted as a screening program measure and to determine suitability as a police agent. If such an assessment occurred in this case, I agree with Shelley J’s statement that results regarding witness “behaviours, tendencies and motivation to testify are directly relevant to ... credibility and reliability.”

[26]           I find the requested records are akin to the disciplinary records requested in R v McNeil. I also adopt the conclusion of Shelley J in R v Jennings, 2018 ABQB 105at para 36:

... the Crown’s bridging obligation to make reasonable inquiries of other Crown agencies or departments under McNeil was triggered; as Crown counsel reasonably should have considered that WPP was in possession of evidence pertaining to the credibility or reliability of the witness[es].

[27]           The requested information is properly characterized as first party records. It is disclosable pursuant to R v Stinchcombe.

R v McElwain (ONSC)

[January 30/20] – Charter s.10(b) - Judicial Speculation as to What Difference Private Advice Makes – 2020 ONSC 344 [McCarthy J.]

AUTHOR’S NOTE: Courts are sometimes prone to speculating about what difference private advice would make in the face of a Breath Demand in an impaired/over 80 investigation.  After all, must that private counsel not simply advise the accused to provide the sample or risk a refusal charge?  Private consultation with your lawyer of choice is important and it is nearly impossible to conclude what questions a person deprived of their liberty might have.  Speculation as to how advice might have been different or what private counsel might advise has no place in a system predicated on constitutional protections of the right to contact and retain counsel without delay. 

Pertinent Facts

[2]               At approximately 8:44pm on the evening of July 30, 2017, following police receipt of a 911 call from a concerned third party, the Appellant was pulled over by police while operating her motor vehicle on Highway 26 in Minesing.   The traffic officer observed the Appellant crying, yelling and in a state of upset; the officer detected the odor of alcohol on the Appellant’s breath.  After the Appellant failed a roadside breath test, the police made a demand for a breathalyzer test.  The Appellant was arrested and charged with impaired driving.  Upon being read her rights to counsel, the Appellant expressed that she wished to contact a lawyer, Bryan Skolnik. She was then taken to police station at 9:25pm.  Once at the police station, there followed a prolonged interaction between police and the Appellant both inside and outside the breath room.   This interaction featured: police attempting to reach Mr. Skolnik and the Appellant’s ex-boyfriend; the Appellant twice declining to speak with duty counsel; the Appellant’s reiteration that she wished to speak with a lawyer;  a renewed effort by police to reach Mr. Skolnik; contact made with a Mr. John Corrigan, who was not a lawyer; and finally at approximately 10:16 pm, the Appellant’s one minute conversation with duty counsel which she reported to police had been a waste of time.  After repeated attempts to have the Appellant provide a breath sample had failed, the process was terminated, and the Appellant was charged with failing to provide a breath sample.  The Appellant was then afforded a second opportunity to speak with duty counsel.

Analysis

[7]               For the reasons set out below, I find that the trial judge erred in law by speculating on the type of legal advice that the Appellant might have received had she been able to contact counsel of her choice.  

[8]               Having found the breach of the s. 10(b) right to counsel, and in the course of his s. 24(2) Grant analysis on October 23, 2018, the trial judge reasoned as follows (as found at pp. 7, 8 and 9 of the transcript): ...

While the advice of a personal counsel that may or may not have, and established a professional relationship with, would have obviously, been a factor she would have considered.  She in no sense, could be characterized as someone adrift, and totally unfamiliar, uncontrollable circumstances with no idea of what to do.

In my view, little would have changed if she had actually had some time to speak to private counsel.

[9]               The Supreme Court of Canada stated in R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173, at para. 63, as follows:

Although the scope of available legal advice in the impaired driving context is necessarily limited, one must be mindful of the fact that this Court has clearly stated in the past that, where the right to counsel has been infringed, it is improper to speculate about the nature of the advice that a detainee would have received and whether the evidence would have been obtained had the right not been infringed: Strachan, per Dickson C. J., at p.1002; and Elshaw, at pp. 43-44.

[10]           The principle in question had been previously stated by the Supreme Court in R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138 at p. 153: “…it is improper for a court to speculate about the type of legal advice which would have been given had the accused actually succeeded in contacting counsel after the charge was changed.”

[13]           I find that by engaging in that speculative exercise, the trial judge failed to pay heed to the Bartle principle.  By doing so, the trial judge allowed his s. 24(2) reasoning on the seriousness of the breach and the impact of the breach on the Appellant to become infected by the consideration of prohibited factors (i.e. the “little would have changed” line of reasoning).

[17]           Accordingly, the appeal is allowed.  The matter is remitted to the Ontario Court of Justice for a new trial.