This week’s top three summaries: R v Merrit, 2023 ONCA 3: #partial stmt and #after the fact, R v Kehoe, 2023 BCCA 2: Gladue #disconnection, and R v Strongeagle, 2023 ABCA 5: #circumstantial ID.

This week's top case deals with statement admissibility and weight issues. 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.

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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 Merritt, 2023 ONCA 3

[January 5, 2023] Admissibility of Partial Statements - After the Fact Conduct Instructions re Omission in Police Statement [Reasons by Paciocco J.A. with J.C. MacPherson and J.A. Thorburn JJ.A. concurring]

AUTHOR’S NOTE: The case against Ms. Merritt on this matter was weak. The Crown depended on both an omission about her partner's attendance at a Walmart to buy shoes (connected to the homicide) and a poor quality recorded statement while they were strategically placed together post-arrest at an airport to await a flight. The trial judge's instruction about the omission raised the prospect that he required the accused to establish through evidence that her omission was not culpable. The error was that the probative value of such evidence can be undermined by mere lack of evidence leading to reasonable doubt (ie. she was covering for her partner, or didn't want to get into trouble for accessory after the fact, not murder). On the Partial Statement front, the Court of Appeal expanded on the R v Ferris authority for not using such statements as an admission of guilt if you cannot determine its meaning as a whole.

OVERVIEW

[1] Caleb Harrison was fatally attacked on August 23, 2013. Prior to his death he had been engaged in an ongoing and bitter custody and access dispute with his former wife, the appellant, Melissa Merritt, relating to their two children. Previously, Caleb’s parents, Bill Harrison, and Bridget Harrison, who had become embroiled in the custody dispute, also met untimely and sudden deaths in the same home where Caleb died, Bill on April 16, 2009, and Bridget on April 21, 2010.

[2] Compelling forensic evidence linked Ms. Merritt’s common law spouse, the appellant, Christopher Fattore, to Caleb’s death....

...he was convicted of first degree murder in the deaths of Caleb and Bridget.

[3] Ms. Merritt was tried jointly with Mr. Fattore for first degree murder in the deaths of Caleb and Bridget, on the theory that she encouraged Mr. Fattore to murder them. The jury acquitted Ms. Merritt in the death of Bridget but found her guilty of first degree murder in the killing of Caleb.

[6] Ms. Merritt appealed...

...She also argued that the trial judge erred in his jury instruction relating to the use, as circumstantial evidence of her guilt, of her omission to mention in two police statements that on a family mall visit the evening before Caleb’s body was found, Mr. Fattore had gone to a Walmart store to purchase shoes (the “Walmart omissions”). Video evidence was subsequently presented at trial showing Mr. Fattore, alone, purchasing the shoes at the Walmart, as well as forensic evidence linking those shoes to Caleb’s killing.

[9] Immediately after their separation, Ms. Merritt had sole custody of the children but through litigation Caleb secured access to the children which he exercised at his parents’ home, with their assistance. Caleb’s parents became enmeshed in the custody dispute. Indeed, in the course of the ongoing litigation Ms. Merritt made a failed allegation against Bridget of abusing the children.

[10] Caleb’s access time with the children increased over time, ultimately to 50% parenting time. However, in March of 2009 he was sentenced to 18-months imprisonment as the result of a conviction of impaired driving causing death. On March 18, 2009, the custody order was varied to provide Bill and Bridget with Caleb’s parenting time while Caleb was incarcerated.

[16] In July 2013, custody litigation was back underway. Ms. Merritt was seeking joint custody of the children after claiming that Caleb was obstructing her access to the children.

[17] On August 23, 2013, while Ms. Merritt’s custody application was outstanding, Caleb was found dead in his bed. Caleb had died from neck compression that demonstrated manual strangulation, likely from an arm bar chokehold, or trauma from a weapon, or both. Caleb had also sustained abrasions and bruises to his upper body and his right arm. There were signs of a struggle in the bedroom where he died, but no signs of forced entry. His death was an obvious homicide.

The Initial Police Interviews
[18] Ms. Merritt was interviewed by the police that day....

...She recounted her movements with Mr. Fattore the evening before, on August 22, 2013, telling the police that they went to Subway and the Pita Pit at a mall after going to a softball game. As indicated above, Ms. Merritt did not mention that while they were at the mall, Mr. Fattore went to the Walmart to buy shoes that would later be linked forensically to Caleb’s killing. However, there was no direct evidence confirming that Ms. Merritt knew that Mr. Fattore had done so.

[19] In that police statement Ms. Merritt also said that the family arrived home at 9:20 p.m., that Mr. Fattore did not go out that night, and that she went to bed around 11:00 p.m. and slept with Mr. Fattore that night. She said that Mr. Fattore was in the bed with her when she fell asleep around 12:30 a.m., when she got up to feed the baby at 4:00 a.m., and when she awoke at 6:00 a.m. to start her day.

[21] On August 26, 2013, Ms. Merritt gave a follow-up statement to the police that was consistent with her statement of August 23, 2013,...

Forensic Evidence
[24] The investigation that was underway into Caleb’s death led to a powerful forensic case against Mr. Fattore. Most notably:

  • DNA consistent with his own was found under Caleb’s clipped fingernails.
  • Mr. Fattore could not be excluded from the mitochondrial DNA profile of a beard hair found on Caleb’s chest.
  • Mr. Fattore’s DNA could not be excluded from samples taken from the inside of a latex glove collected from the garbage bin at his home days after Caleb was killed, and Caleb could not be excluded as the DNA source located on the outside of the glove.
  • Walmart running shoes were found in Mr. Fattore’s garbage bin which contained a DNA profile similar to Mr. Fattore’s, as well as a dog hair consistent with a hair from Caleb’s dog. The police secured video footage of Mr. Fattore buying shoes at the Walmart the evening before Caleb’s murder.
[26] Most notably, the transcribed Nova Scotia audio tapes contain self-incriminating statements by Mr. Fattore relevant to the killings of both Bridget and Caleb:

  • On January 1, 2014, after the police had caused Mr. Fattore to believe that they had linked him to Bridget’s killing with DNA, Mr. Fattore can be heard suggesting that the DNA must have been from his hair because Bridget did not touch him.
  • On January 8, 2014, he said with respect to Caleb, “I killed him fuckin’ perfect”, or words to the effect of, “I killed him, then fuckin’ prove it”. Later that day he said, “I went in there and the fuckin’ coward didn’t fight”.
[27] With respect to Ms. Merritt, the Nova Scotia audio tapes provided evidence that:...

Ms. Merritt discussed strategies with Mr. Fattore to avoid his apprehension:

  • They discussed, for example, what should be said about the Walmart shoes and how Mr. Fattore’s DNA could have been innocently transferred in relation to the deaths of Bridget and Caleb...
[28] When the police sent an email that purported to be from a victim liaison officer disclosing that the police suspected Ms. Merritt of having misled them by failing to disclose Mr. Fattore’s Walmart visit, Ms. Merritt expressed concern about being charged as an accessary after the fact.

[30] The police had arranged that Sergeant (“Sgt.”) King, an expert police interrogator, who had spent more than a month preparing to interview Mr. Fattore upon his arrest, would be the only officer to have contact with him. Once at the police station Sgt. King questioned Mr. Fattore for fifteen hours and seventeen minutes.

[31] After more than eleven hours, Mr. Fattore confessed to having killed Bridget and Caleb. He said that he killed them of his own initiative, without Ms. Merritt’s knowledge, because Ms. Merritt was always sad, crying, and anxious when the children were with the Harrisons.

The Airport Intercept Statement
[35] On January 31, 2014, Mr. Fattore and Ms. Merritt were taken to the airport for transport to Ontario. They were left to sit alone while waiting for their flight, but unbeknownst to them, their conversations were being intercepted. Police transcripts of their extensive conversation describe portions of many of the exchanges as “unintelligible”.

[38] After further conversation, Mr. Fattore and Ms. Merritt returned to Ms. Merritt’s potential culpability as an accessory after the fact. Mr. Fattore said that he had asked the police what would happen if she knew of the murders after the fact and was told that Ms. Merritt would be an accessory after the fact, which is “not at all as big” as murder. They discussed Mr. Fattore’s DNA being under Caleb’s fingernails. The following exchange, as transcribed with the approval of Cst. Lowe, the officer responsible for transcription, was then intercepted:

Merritt: (whispers) You shouldn’t have said anything to them

Fattore: Huh
Merritt: You shouldn’t have said anything

Fattore: (whispers) I was thinking about (unintelligible) and the children

Merritt: (whispers) (unintelligible) the audio tapes would’ve fucked us anyways.

I refer in these reasons to the last comment attributed to Ms. Merritt as the “airport intercept statement”.

THE ISSUES

The Merritt Appeal

C. Did the trial judge err in his charge to the jury on Ms. Merritt’s Walmart omissions?

ANALYSIS

Merritt Appeal: Did the trial judge err in his charge to the jury on the airport intercept statement?

Overview

[60] The Crown position at trial was that this airport intercept statement is an admission by Ms. Merritt of guilt for Caleb’s murder. Ms. Merritt takes no issue on appeal with the admissibility of the airport intercept statement but she argues, correctly in my view, that the trial judge erred by failing to direct jurors that if they found this statement to be partially inaudible, they could not treat it as an admission of Ms. Merritt’s guilt unless they could determine the meaning of the statement as a whole from its context.

[61] I agree with Ms. Merritt, and I am persuaded that this error was serious. The Crown was inviting the jury, in an otherwise problematic case, to treat the airport intercept statement as an admission by Ms. Merritt of her guilt in Caleb’s killing. As Rowe J. noted in R. v. Schneider, 2022 SCC 34, at para. 81, “juries are likely to give significant weight to confession-like evidence” and he noted that there is therefore “significant potential for prejudicial use of confessions” or party admissions “akin to a confession”. The risk of jury misuse of the airport intercept statement was real, and the consequences of misuse would have been devastating. I would therefore allow this ground of appeal.

The Principles of Law
[63] As the following discussion will demonstrate, it is settled law that where a partial or incomplete statement is offered into evidence as a party admission, but lacks sufficient context to give meaning to the words, that partial or incomplete statement is irrelevant and lacks probative value. It is therefore inadmissible. It follows that if a partially heard statement – in this case proof of an incomplete sentence – is admitted into evidence in a jury trial and the jury determines that there is insufficient context to give meaning to the words, the jury must disregard the partial or incomplete statement. After all, no jury can properly rely on evidence that is irrelevant and lacking in probative value. Jurors must therefore be provided with a direction that if they cannot determine the meaning of the partial or incomplete statement, they cannot use it as an admission and must disregard it.

[69] In the course of making that determination, Rowe J. commented upon the decision in R. v. Ferris (1994), 1994 ABCA 20, 149 A.R. 1 (C.A.), aff’d [1994] 3 S.C.R. 756. In Ferris, a witness overheard Ferris making a phone call after his arrest in which he said, “I’ve been arrested” and then, sometime later, “I killed David”. The intervening words were not heard by the witness. The Alberta Court of Appeal concluded that given the unheard words, a jury could not ascribe non-speculative meaning to the words the officer overheard, depriving those words of relevance and probative value, thereby requiring their exclusion from evidence. In a short endorsement, Sopinka J., for the Supreme Court of Canada, upheld the decision.

[70] In Schneider, at para. 69, Rowe J. explained that in Ferris, Sopinka J. did not affirm the relevance analysis of the Alberta Court of Appeal, which appears to have been conducted based on the inability to determine what was said from examining the micro-context. Rowe J. explained that what Sopinka J. said was that “even if the testimony was relevant, it should have been excluded after balancing the probative value against prejudicial effect”. Rowe J. then affirmed, at para. 72, “Ferris is good law, but must be carefully read”, and he stressed that “[e]xclusion of a partial conversation is ... not automatic and the analysis is above all a contextual one”.

[74] ...Obviously, it would be preposterous if partially inaudible statements were automatically excluded. Few witnesses can recall relevant conversations verbatim. It has long been established that where a witness can provide testimony about what a statement communicated, or there is context for assessing the meaning of words spoken, the evidence is admissible, with the weight of the statement being a matter for the trier of fact to determine: R. v. Bennight, 2012 BCCA 190, 320 B.C.A.C. 195; R. v. Buttazoni, 2019 ONCA 645, R. v. Hummel, 2002 YKCA 6, 166 C.C.C. (3d) 30. The ratio of Schneider is clear and can be expressed using Rowe J.’s words in para. 63: Where “there [is] sufficient context for the jury to give meaning to the words that [are] overheard, such that the evidence overcomes the low threshold for (logical) relevance,” a partially inaudible statement will be admissible, subject to exclusionary discretion.

[75] ...As I have explained, Rowe J. made clear in Schneider that the admissibility of incomplete statement evidence requires relevance, which is determined as a matter of logic and human experience by inquiring whether the evidence tends to increase or decrease the probability of the existence of a fact at issue: Schneider, at paras. 39, 76. If the meaning of a statement offered as an admission cannot be determined, it cannot logically increase or decrease the probability of the existence of a fact in issue and therefore does not meet even the low threshold of relevance.

[78] As the foregoing quote from Hunter makes clear, and as affirmed in Schneider at paras. 64 and 69, there are two mechanisms in the law of evidence for excluding incomplete statements that have been offered as admissions. First, if it is found by the trial judge that there is insufficient context to enable meaning to be given to identified words, such statements are not admissible because they fail to meet the basic rule that to be admissible evidence must be relevant. Second, incomplete statements may lack sufficient probative value to admit, and therefore require exclusion through the application of the exclusionary discretion that Sopinka J. relied upon in Ferris to exclude the overheard words extracted from the incomplete statement, “I killed David”.

[81] It follows from this that jurors must be told that if they cannot determine the meaning of the partial statement, they cannot use it as an admission. After all, “[a] charge to a jury is aimed at ensuring that “the jurors would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues””: R. v. H.W., 2022 ONCA 15, 160 O.R. (3d) 81, at para. 34, citing R. v. Cooper, [1993] 1 S.C.R. 146, at p. 163; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 32. A functional understanding of what is required to adjudicate the issue of whether a partial statement can be given meaning as an admission necessarily includes an appreciation by jurors that if they cannot give the partial statement meaning, they must disregard it.

[83] ...The trial judge’s charge is not reproduced by Rowe J., but it is available in the British Columbia Court of Appeal decision, reported at 2021 BCCA 41, 400 C.C.C. (3d) 131. In that direction, the trial judge advised jurors to bear in mind that the brother did not hear what was said before and after the words he overheard. He then told jurors to bear this in mind, “when you consider what, if any, weight can be given” to the brother’s evidence, following which he directed jurors that if they could not determine what Schneider meant by the overheard words, “[they] should ignore the evidence”: Schneider, 2021 BCCA 41, 400 C.C.C. (3d) 131, at para. 98 (emphasis added in first quote, original in second quote).

[92] The charge that the trial judge ultimately gave to the jury addressed inaudible statements in several locations, and contained the following material directions, none of which charged the jury not to use the airport intercept statement as an admission by Ms. Merritt if they could not decide what the entire statement meant.

[98] If jurors determined that they could not hear the inaudible portion of Ms. Merritt’s airport intercept statement, “(unintelligible) the audio tapes would’ve fucked us anyways,” they would be considering an incomplete statement. The issue for them would then be whether they could give meaning to the airport intercept statement as a whole, given its context. There was a very real possibility on the evidence before the jurors that they may not be able to do so.

[99] Significantly, the Crown was relying upon part of a sentence as an admission of guilt. A sentence, of course, is a complete thought, and any clause or even a single word of a sentence can direct its meaning. Depending upon what the unintelligible words were, they were capable of changing entirely the meaning of “the audio tapes would’ve fucked us”. By way of example only, if the “unintelligible” portion of the sentence indeed included the words, “they think”, then the airport intercept statement would not be an admission of guilt of anything. The missing words could well have played a central but unknown role in the meaning of the sentence. If the meaning of the words could not be heard or discerned from context or could not be determined from context to be unimportant, it would be arbitrary for jurors to rely on the words that could be heard.

[100] Moreover, even if context permitted jurors to conclude that notwithstanding the missing words in the sentence she spoke, Ms. Merritt must have been recognizing her guilt, the impenetrable question that remains is: her guilt of what? Ms. Merritt was suspected of complicity in three murders at the time and she was under arrest for two murders. Which murder charge or charges was she saying she believed she was “fucked” on? This mattered because unless jurors could relate the “admission” to a specific charge, it could not provide evidence against her at her trial.

[101] In addition, Ms. Merritt was not only at risk of criminal liability on the murder charges. She was also in jeopardy as an accessory after the fact, and there are compelling reasons to believe that if she was acknowledging guilt in the airport intercept statement, this is what she was referring to....

[102] In this context, unless jurors determined that they could hear the “unintelligible” words, there was a realistic risk that they would not be able to determine what the airport intercept statement meant from its context. This made it gravely important for jurors to understand that if they could not hear the part of the statement marked “unintelligible” and could not determine the meaning of the airport intercept statement as a whole from its context, the partial or incomplete statement that they could hear could not be used as an admission of her guilt.

[103] When defence counsel asked for such a direction, as recounted in para. 89 above, the trial judge refused. He took the position that it was not necessary to do so because the overall context could be of some significance in assisting jurors to determine what was said in the inaudible portion of the statement....

[113] In summary, I am far from persuaded that, in a case where jurors have been invited to decide what they are prepared to take from a partial statement made by an accused, that they would nonetheless glean from general directions to interpret the meaning of statements in context, that they are not to use the airport intercept statement as an admission of guilt by Ms. Merritt unless they can determine its meaning as a whole.

[115] However, none of these directions tells jurors anything about how to proceed if they cannot determine the meaning of the statement, “(unintelligible) the audiotape would’ve fucked us anyways”. It was necessary to do so.

[116] I would therefore allow this ground of appeal.

Merritt Appeal: Did the trial Judge err in his charge to the jury on Ms. Merritt’s Walmart omissions?

Overview
[117] I am also persuaded that the trial judge misdirected the jury relating to the reasoning process it should engage in when determining whether the Walmart omissions constituted after-the-fact conduct by Ms. Merritt indicative of her guilt. I accept her submission that the direction he gave incorrectly imposed a burden on her to provide affirmative evidence to the contrary. I will begin by describing the error in simple terms, before elaborating.

[118] After-the-fact conduct evidence is evidence of conduct by the accused that “is consistent with the conduct of a guilty person and inconsistent with an innocent person”: R. v. White, [1998] 2 S.C.R. 72, at para. 19. For this reason jurors are told that before using after-the-fact conduct evidence as evidence of guilt, they must carefully consider and reject any innocent explanations for such conduct, and trial judges will assist jurors by reviewing possible innocent explanations.

[119] The Crown position was that Ms. Merritt did not tell the police about the purchase of the shoes in order to hide her own complicity in the killing. A competing possible innocent explanation on the charge of murdering Caleb was that Ms. Merritt did not tell the police about Mr. Fattore’s shoe purchase because she wanted to protect him from being held accountable for his guilt. Unless this innocent accessory after the fact explanation was rejected by the jury, the Walmart omissions could not stand as evidence that she was a party to Caleb’s murder.

[120] In his charge the trial judge appropriately instructed the jury to consider the possibility of Ms. Merritt’s innocent, accessory after the fact explanation. However, he went on to instruct the jury that rejection of this explanation “could result from ... rejection of the submission that there was other evidence which shows that Ms. Merritt was not involved in the crime charged but was merely acting as an accessory after the fact.” This is incorrect. Even if there was no affirmative evidence showing that Ms. Merritt was merely acting as an accessory after the fact, if jurors were left unpersuaded because of the absence of evidence that she had lied to hide her own guilt in Caleb’s murder rather than to protect Mr. Fattore, they could not properly reject her innocent explanation.

The Material Facts
[122] The Walmart omissions occurred in Ms. Merritt’s police statements of August 23, 2013, and August 26, 2013, when she was recounting the movements of family members on the evening before Caleb’s death. She did not tell the police that while the family was at a mall, Mr. Fattore went to the Walmart to purchase shoes. There is a transaction receipt and video evidence from the Walmart store showing Mr. Fattore doing so during a visit to the store that evening. There is also forensic evidence linking those shoes circumstantially to the killing, as well as proof of an attempt to dispose of the shoes.

[124] However, before accepting the Crown’s invitation to treat the omissions as an attempt by Ms. Merritt to hide her own guilt in Caleb’s murder, the jury had to reject the alternative possibility that she omitted mention of Mr. Fattore’s shoes in order to protect him.

The Jury Charge
[126] The material passages from the jury charge relating to the possibility that there may be an innocent explanation for Ms. Merritt’s failure to disclose the Walmart visit are as follows:

You may find the account that Mr. Fattore gave to Sergeant King to be quite inconsistent with Mr. Fattore’s trial testimony....

...If you reject Mr. Fattore’s evidence which supports the alternative explanation for her fabrication, you should ask yourself whether there is any other evidence admissible in relation to Ms. Merritt which you think could support such an alternative reason for any fabrication which you have found. [Emphasis added.]

[127] Later in the charge, when considering whether the jury could compare Ms. Merritt’s police statement to Mr. Fattore’s to infer a joint effort to mislead, the trial judge said:

Before you can engage in this form of reasoning, you would also have to reject that Ms. Merritt was acting only as an accessory after the fact in doing so. As previously discussed, that could result from disbelief of Mr. Fattore’s evidence, which is the only direct evidence that Ms. Merritt was an accessory after the fact, and rejection of the submission that there is other evidence which shows that Ms. Merritt was not involved in the crime charged but was merely acting as an accessory after the fact. [Emphasis added.]

[128] Ms. Merritt’s trial lawyer objected to the suggestion that the jury could rely on the absence of affirmative evidence showing that Ms. Merritt was not involved in the crime charged as the basis for rejecting the innocent accessory after the fact explanation for the Walmart omissions. He also took exception with the suggestion that an inference of guilt could be drawn because of the absence of evidence of innocence.

[129] I am persuaded that these objections were well taken. There are two related problems. First, it was an error for the trial judge to direct the jurors that they could reject the innocent accessory after-the-fact explanation if they rejected Mr. Fattore’s testimony and found there to be no other direct evidence that Ms. Merritt was not involved in the crime but was merely acting as an accessory after-the-fact. As I have explained, even in the absence of affirmative evidence supporting the innocent after-the-fact conduct inference, jurors could appropriately decide that they cannot reject the innocent accessory after-the-fact explanation because of the absence of evidence disproving it.

[130] Moreover, although the Crown does not have to prove beyond a reasonable doubt that the after-the-fact conduct is consistent only with guilt, accused persons are not required to present affirmative evidence consistent with their innocence. Yet the trial judge effectively invited jurors to reject the innocent accessory after the fact inference if there was no affirmative evidence supporting Ms. Merritt’s position. To be sure, a jury should consider the absence of affirmative evidence supporting an innocent inference in deciding whether to reject it, but in my view, it is inconsistent with the presumption of innocence to invite a jury to reject an innocent inference unless such affirmative evidence exists.

[137] I would therefore allow this ground of appeal.

CONCLUSION

[140] I would allow Ms. Merritt’s appeal, set aside her conviction, and order a new trial.

R v Kehoe, 2023 BCCA 2

[January 3, 2023] Gladue: Disconnection from Indigenous Culture is a Result of Assimilation Policies and Not a Reason to Discount Gladue Principles [Reasons by Marchand J.A. with Groberman and Hunter JJ.A. concurring]

AUTHOR’S NOTE: There has been some dispute in recent years whether Indigenous people who lost their connection to their culture should be entitled to Gladue mitigation against their sentence. Without giving credence to this proposition the idea was that whatever the majority culture did to their families in the past did not directly affect them because they grew up in the dominant Canadian culture. It was hidden with the logic of the need to establish a "connection" between the residential school system and accused. Of course, if you take one step back, the idea seems preposterous. In essence, this jurisprudence suggested that because assimilation was successful, then cultural genocide had no impact on the person's prospects of becoming a contributing member of society. In this decision, the BCCA rejected this line of reasoning explicitly. Direct causal links are not necessary between the background factors and the offence. Disconnection from Indigenous culture is evidence of assimilation policies affecting the person. 

Introduction

[1] David Johnathan Michael Kehoe is Métis. On February 19, 2021, the trial judge convicted him of one count of aggravated assault contrary to s. 268(2) of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”). The judge found that he had stabbed the victim twice. The assault was unprovoked. The stab wounds punctured the victim’s lung and lacerated his liver. If not for surgery, the victim would have died.

[2] On November 19, 2021, the judge sentenced Mr. Kehoe to five years’ imprisonment less time served....

[3] Mr. Kehoe seeks leave to appeal his sentence. He acknowledges that the judge referenced s. 718.2(e) of the Code and Gladue principles, but maintains he erred in principle by failing to give them meaningful effect. If successful on appeal, he seeks a sentence of three to four years’ imprisonment less time served.

[5] In my respectful view, the judge erred in principle by relying on trial Crown’s submission that Gladue principles played a limited role in Mr. Kehoe’s case because of his disconnection from his Métis heritage, culture and community. I would therefore grant Mr. Kehoe leave to appeal his sentence, allow his appeal and impose a sentence of four years’ imprisonment less time served....

Reasons for Sentence

[21] The judge next turned to s. 718.2(e) of the Code, which he noted requires judges to pay “particular attention to the circumstances of Aboriginal offenders” in the sentencing process. He also noted that Mr. Kehoe has Métis heritage on his mother’s side.

[22] Of particular importance to this appeal, the judge cited two passages from this Court’s decision in R. v. Hamer, 2021 BCCA 297, namely that: (1) for s. 718.2(e) to apply, an Indigenous offender need not establish a causal link between systemic and background factors and the offence at issue: Hamer at par. 98; and (2) there was no evidence in Mr. Hamer’s case to show that his claimed Indigenous heritage played any role in his criminality: Hamer at para. 114.

[23] The judge summarized the positions of the parties and his own views regarding the impact of Mr. Kehoe’s Indigenous heritage as follows:

[32] The Crown notes that none of the negative experiences in Mr. Kehoe’s youth were connected in any tangible way to his Indigenous heritage or the legacy of residential schools. The majority of the problems were occasioned by his stepfather’s lifestyle and connection to the drug trade. Further, Mr. Kehoe was not apprised of his Aboriginal heritage until recently.

[33] In response, Mr. Kehoe’s counsel submits that the net should be cast more broadly. Simply put, Mr. Kehoe’s mother is of Aboriginal heritage. Women of that heritage have poor outcomes in our society. I accept that submission and that I should consider systemic and background factors that have played a role in bringing the Indigenous person before the court and may have a mitigating effect on moral blameworthiness.

[38] ...I have taken those factors into account, both as general background factors and factors to be considered under s. 718.2(e). I consider the nexus between Mr. Kehoe’s Aboriginal status and this offence to be limited.

Standard of Review

[30] An appeal court can intervene to vary a sentence only if the sentence is demonstrably unfit or if the sentencing judge made an error in principle that had an impact on the sentence: Friesen at para. 26; Sellars at para. 22; R. v. Lacasse, 2015 SCC 64 at paras. 41, 44. Errors in principle include “an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor”: Friesen at para. 26.

Gladue Principles

[35] Given Mr. Kehoe’s Métis heritage, s. 718.2(e) of the Code has special importance. It provides:

[A]ll available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[Emphasis added.]

[36] In R. v. Gladue, [1999] 1 S.C.R. 688, 1999 CanLII 679, and R. v. Ipeelee, 2012 SCC 13, the Supreme Court of Canada made clear that s. 718.2(e) is remedial and is intended to deal with the continuing crisis of over-representation of Indigenous offenders in the Canadian criminal justice system: Gladue at para. 33; Ipeelee at para. 59.

[37] This crisis is driven by the alienation, poverty, substance abuse, lower educational attainment, lower rates of employment, and prejudice experienced by Indigenous people in Canada. Sentencing judges are to take judicial notice of how Canada’s colonial history and post-colonial assimilationist policies have translated into these terrible outcomes: Gladue at para. 83; Ipeelee at para. 60. These systemic and background factors do not excuse or justify criminal conduct. Rather, they provide the necessary context for understanding and evaluating case-specific information during the sentencing exercise: Ipeelee at para. 83.

[40] Accordingly, Gladue and Ipeelee transformed the approach to sentencing Indigenous offenders. As with all offenders, a judge sentencing an Indigenous offender must take a holistic approach to imposing a fit sentence that is proportionate to the seriousness of the offence and the moral blameworthiness of the offender: Ipeelee at para. 37. However, since the circumstances of Indigenous offenders are “significantly different” from those of non-Indigenous offenders, the judge must pay particular attention to two factors:

  1. The unique systemic or background factors that may have played a part in bringing the particular Indigenous offender before the courts; and
  2. The types of sentencing procedures and sanctions that may be appropriate for the offender in the circumstances given their particular Indigenous heritage or connection.

See Gladue at para. 66; Ipeelee at para. 59.

[41] In considering systemic and background factors, the judge must take account of all the surrounding circumstances, including “the unique circumstances of the offender as an aboriginal person,” and display sensitivity to and understanding of the “difficulties aboriginal people have faced with both the criminal justice system and society at large”: Gladue at para. 81; Ipeelee at paras. 59–60, 75.

[42] It is not necessary to establish a direct causal link between systemic and background factors and the offence at issue. How the complex interplay of historical factors impacted a particular Indigenous offender may be difficult or impossible to establish. Nevertheless, the specific systemic or background factors at play are critically important. They may help the court assess the moral blameworthiness of the offender or identify appropriate sentencing objectives: Ipeelee at paras. 81–83; Hamer at para. 98.

[43] As for the appropriate sanctions, while restorative sentences may be more appropriate for Indigenous offenders, applying Gladue principles will not necessarily lead to a reduced sentence. There is no automatic heritage-based discount: Gladue at para. 88; Ipeelee at paras. 71, 75; Mero at para. 73. Generally, the more serious or violent the crime, the more likely it will be, as a practical matter, that the terms of imprisonment will be the same for an Indigenous and a non-Indigenous offender: Gladue at para. 33; R. v. Wells, 2000 SCC 10 at paras. 42–44; Ipeelee at paras. 84– 85; Mero at para. 73.

[44] That said, no offence is so serious that it negates the need for a sentencing judge to consider s. 718.2(e) of the Code and Gladue principles: Ipeelee at paras. 84–85. In fact, absent an informed waiver, sentencing judges have a duty to consider s. 718.2(e) and Gladue principles in every case involving an Indigenous offender: Gladue at para. 82....

Discussion

[46] In many cases involving the sentencing of Indigenous offenders, Canada’s assimilationist policies have been so successful that the offender may be largely or completely disconnected from their Indigenous culture, community and support: Hamer at para. 115. In such cases, an obvious tension arises in the task of balancing (1) the well-known principle that it is not necessary to establish a direct causal link between systemic and background factors and the offence at issue with (2) the requirement that it is nevertheless necessary to “evaluate relevant information about the significance of a person’s Indigenous identity and the individual’s circumstances as an Indigenous person”: Hamer at para. 117.

[48] In Hamer, there was nothing in the record to show that systemic or background factors had any impact on the self-identifying Indigenous offender’s life or his moral culpability. Mr. Hamer was informed by his mother that he was born from her relatively short and casual relationship with a man who had told her he was “part Cree”. Mr. Hamer’s biological father played no role in his life. The Gladue report writer was unable to confirm Mr. Hamer’s Indigenous heritage or community of origin. More importantly, the Gladue report writer was unable to comment on any potential intergenerational impacts which may have affected Mr. Hamer or his family members: Hamer at paras. 101–103.

[49] Hamer is a clear example of the principle that Gladue principles do not apply simply because an offender is Indigenous. Indigeneity is not related to criminality....

[52] The overall thrust of the Crown’s submission was plain: because Mr. Kehoe and his mother were disconnected from their Métis heritage, Gladue principles should play essentially no role in determining a fit sentence for Mr. Kehoe. Mr. Kehoe’s difficulties were related primarily to his non-Indigenous step-father’s behaviours, not his heritage.

[53] This position is highly problematic for two reasons.

[54] First, as the Truth and Reconciliation Commission noted at pp. 1–3 of its summary report, “Honouring the Truth, Reconciling for the Future,” Canada developed and implemented “a coherent policy to eliminate Aboriginal people as distinct peoples and to assimilate them into the Canadian mainstream against their will.” Canada “pursued this policy of cultural genocide because it wished to divest itself of its legal and financial obligations to Aboriginal people and gain control over their land and resources.” Residential schooling was one of many tools Canada used to achieve its assimilationist objectives.

[55] As a consequence of Canada’s colonial history and assimilationist policies, many Indigenous people have become disconnected from their ancestral communities, cultures, and associated positive social structures. This disconnection has contributed to the social and economic marginalization of Indigenous people in Canada, including their disproportionate interactions with the criminal justice system.

[56] Disconnection is one of the very harms associated with Canada’s colonial history and assimilationist policies that Gladue and Ipeelee seek to address. Accordingly, the Crown’s reasoning that Gladue principles should play a very limited role in this case because Mr. Kehoe was disconnected from his Indigenous culture, community and supports subverts the remedial purpose of s. 718.2(e) of the Code and penalizes Mr. Kehoe for the success of Canada’s destructive policies.

[57] Second, when determining whether and how Gladue principles applied to Mr. Kehoe, the issue was never whether he was disconnected from his Métis community, culture and supports. Rather, the issues were: (1) the role Canada’s colonial history and post-colonial assimilationist policies played in causing that disconnection; and (2) the role that disconnection played in his coming before the court.

[59] However, when I read the judge’s reasons for sentence generously, as a whole and in the context of the record, it is evident he adopted the Crown’s flawed reasoning. He accepted, without analysis, the Crown’s submission that there was a limited connection between Mr. Kehoe’s heritage and his offence. He also expressly accepted the Crown’s submission regarding the appropriate length of sentence. Both of these submissions were based largely and incorrectly on Mr. Kehoe’s disconnection from his Métis community and culture. The judge did not turn his mind to whether and how: (1) Canada’s colonial history and post-colonial assimilationist policies played a role in that disconnection and (2) the instability in Mr. Kehoe’s life may have been related to that disconnection.

[60] I have great respect for the privileged position, experience and wisdom of the sentencing judge and a full appreciation of the challenging circumstances he faced. Nevertheless, in my view, he erred in principle. In relying on the Crown’s submission that Gladue principles should play a very limited role because Mr. Kehoe is disconnected from his Métis community and culture, the judge erred in law and failed to consider the role Canada’s colonial history and assimilationist policies may have played in bringing Mr. Kehoe before the court.

[61] In my view, the judge’s error in principle was material to the sentencing exercise. I must therefore undertake the sentencing process afresh.

Sentence

[69] In this case, I do not find it difficult to infer that Canada’s colonial history and assimilationist policies played a role in bringing Mr. Kehoe before the court. That is because I do not consider it simply a coincidence that Mr. Kehoe’s mother (1) became disconnected from her Métis community and culture and (2) fell victim to the all too common plight of similarly situated Indigenous women across Canada. In the absence of policies specifically designed to disconnect Indigenous people from their communities, cultures and supports, Mr. Kehoe’s mother stood a much better chance of raising him in a stable and functional environment where his heritage was celebrated and where he would develop pro-social and community-oriented values.

[72] The hardest sentencing decisions involve offenders who have committed serious offences but have a reduced level of moral blameworthiness. In this case, considering the aggravated nature of Mr. Kehoe’s offence as well as his criminal record, reduced level of moral blameworthiness and efforts at rehabilitation, I would impose a sentence of 4 years’ imprisonment less time served. I would not disturb the ancillary orders made by the judge.

R v Strongeagle, 2023 ABCA 5

[January 10, 2023] Circumstantial Identification Evid [Patricia Rowbotham, Jo'Anne Strekaf, and Kevin Feehan JJ.A.]

AUTHOR’S NOTE: The law is simple, yet court continue to get it wrong. In a circumstantial case (particularly a circumstantial ID case), any reasonable conclusion available on the evidence that does not point to the culpability of the accused should result in an acquittal. Here, prior surveillance identification of the accused behind the wheel of a vehicle associated to a person who committed a car jacking when that vehicle was in close proximity cannot establish on the criminal standard that the accused was the driver at the time. 

Introduction

[1] The appellant and his co-accused were convicted of possession of a stolen Honda CR-V and of robbing a Toyota 4Runner. The appellant challenges his convictions on the basis that the verdicts were unreasonable. He also submits that the trial judge erred in applying the test for circumstantial evidence and in assessing party liability, and that the reasons for conviction were insufficient.

[2] The Crown concedes the appeal on the conviction for possession of the stolen Honda CR- V. The trial judge was mistaken when she concluded that the Crown had proved that the Honda CR-V was stolen because it had been identified by its Vehicle Identification Number. There was no evidence adduced about the Vehicle Identification Number.

Background

[3] On June 12, 2019, undercover police were surveilling a third party when they observed the appellant, his co-accused (Ms Benedict), and two other people (Ms A and Mr S) in a Honda CR- V that had been identified as stolen. A number of officers in the Auto Theft Unit tracked the vehicle, on and off, for several hours. They were able to later identify the appellant as the driver of the Honda CR-V on two occasions that evening, once at 6:18 p.m. when he first entered the vehicle and then at 7:20 p.m. when he was fueling the vehicle at a gas station.

[5] At around 9:30 p.m., police observed the Honda CR-V dropping off Ms Benedict in the Calgary neighbourhood of Copperfield. Ms Benedict met Mr Volciuc who was helping a friend sell a Toyota 4Runner. Mr Volciuc believed that Ms Benedict was acting for a potential buyer, her boyfriend. Ms Benedict took the Toyota 4Runner for a test drive and Mr Volciuc was in the passenger seat....

...While in the Toyota 4Runner on the gravel road, Mr Volciuc saw a black truck in the rear-view mirror and given his discussion with Ms Benedict, it was assumed it was her boyfriend. In actuality, it was the undercover officer. Ms Benedict stopped the Toyota 4Runner and told Mr Volciuc that he had “to walk alone from here”. He complied as he was not sure if Ms Benedict’s boyfriend, who he believed may be in the truck, would hurt him and he feared for his life. Ms Benedict drove away in the Toyota 4Runner. The undercover officer approached Mr Volciuc and drove him back to Calgary.

[6] The appellant and Ms Benedict were arrested in the early morning of June 13, 2019. They were charged with several offences, including possession of stolen property with a value over $5,000 in relation to the Honda CR-V, and robbery of the Toyota 4Runner.

[7] In convicting the appellant of robbery of the Toyota 4Runner, the trial judge relied on circumstantial evidence that the appellant continued driving the Honda CR-V after the police last identified him as the driver at around 7:20 p.m., several hours before Ms Benedict met Mr Volciuc. The trial judge concluded that even though the appellant was not in the immediate vicinity when the robbery of the Toyota 4Runner occurred, he was a party to the robbery because she inferred he drove Ms Benedict to Copperfield in the Honda CR-V, which facilitated the robbery. The trial judge also drew an inference that the appellant was operating the Honda CR-V while it drove in tandem behind the Toyota 4Runner, and that the driver of the Honda CR-V was working in concert with Ms Benedict as she drove the Toyota 4Runner.

Discussion

[8] When the Crown’s case depends on circumstantial evidence, in assessing whether a verdict is reasonable the question is whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence: R v Villaroman, 2016 SCC 33 at para 55.

[9] The Crown acknowledges that the only identification evidence of the appellant as the driver of the Honda CR-V occurred at 6:18 p.m. and 7:20 p.m. There is no evidence identifying him thereafter, including during the drive to Copperfield at approximately 9:30 p.m. or following Ms Benedict in the stolen Toyota 4Runner afterwards.

[10] To convict the appellant of being a party to the robbery when the only identification of him occurred hours before the robbery is not the only reasonable conclusion on this record. Given the gaps in the evidence, it was not a reasonable inference for the trial judge to conclude that the appellant was operating the Honda CR-V at the relevant times to ground his conviction for robbery.

[11] We allow the appeal and set aside the convictions. The Crown submitted that the appropriate remedy for the charge of possession of stolen property is to order a new trial. In R v Ledesma, 2020 ABCA 411 at para 21, this Court held:

Where an appeal is allowed on the ground of an error of law, the exercise of discretion to direct a new trial pursuant to s 686(2) depends on whether there was evidence upon which a properly instructed jury might have convicted. If there is no evidence of an essential element of the charge, the court will direct an acquittal because an accused shall not “be again placed in jeopardy after the Crown has failed to prove his guilt in order to give the Crown another opportunity to convict him”: R v NW, 2013 ABCA 393 at para 17 citing R v More (1959), 1959 CanLII 447 (BC CA), 124 CCC 140 (BC CA) at 149-150, 31 CR 59.

[12] In our view, the appropriate remedy on both charges is to enter acquittals.

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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