This week’s top three summaries: R v Waterman, 2020 NLCA 18, R v Odle, 2020 ONSC 3991, and R v AK, 2020 ONCA 435.
R v Waterman (NLCA)
[May 27, 2020] Jury - Unreasonable Verdict Based on Complainant Inconsistencies and Lack of Expert Evidence on Recovered Memories - 2020 NLCA 18 [Separate Concurring Reasons by Welsh J.A. and White J.A. with Butler J.A. Dissenting]
AUTHOR’S NOTE: Litigation surrounding the concept of therapy recovered traumatic memories was quite frequent around the turn of the millennium. However, there have been fewer reported cases in recent years. Although the majority in this case split, the common theme seems to have been that where testimony has significant inconsistencies and the complainant claims therapy recovered memories, some expert evidence is required on that topic. A jury verdict of guilt where no expert evidence is offered in these circumstances is unreasonable.
Pertinent Facts
[7] I refer, then, to the summary of the facts in the trial judge’s oral sentencing decision:
Facts. Pursuant to s. 724(2) of the Criminal Code, following a verdict of guilty by a jury, the judge must accept as proven all facts essential to the jury’s verdict and may find, as proven, any other relevant fact disclosed by the evidence. The [complainant] described five incidents of a sexual nature involving the offender. The first incident occurred when [the complainant] asked Angus Waterman for a ride on his motorcycle. When they were on the highway the offender moved [the complainant’s] hands down to his exposed penis. [The complainant] tried to move his hands but the offender put them back on his penis. During the second encounter, Angus Waterman took [the complainant] by motorcycle to the same location, pulled out his penis and told [the complainant] to hold it. The third incident also involved a motorcycle ride to the same location and [the complainant] holding the offender’s penis. [The complainant] testified the fourth occurrence was at Angus Waterman’s apartment. [The complainant] was told to take his pants down. He did so, but left his underwear on. Angus Waterman sat down, exposed his penis and began masturbating, but was interrupted by the arrival of his spouse who ordered [the complainant] to leave. The last incident was when [the complainant] was 13 years old. The offender offered him a ride in his vehicle. As Angus Waterman began to pull out his penis, [the complainant] punched him on the side of the face and told [him that] he would get older and meaner and would come looking for him.
Unreasonable Verdicts - The Law - by Welsh J.A.
[10] Whether a verdict is unreasonable is a question of law (R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at paragraph 5). The test to be applied is discussed in R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180:
[26] A verdict is unreasonable or cannot be supported by the evidence if it is one that a properly instructed jury acting judicially could not reasonably have rendered: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. ...
[32]... There are a number of points in François [1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827] that are particularly relevant to this case:
1. It is for the jury to decide, notwithstanding difficulties with a witness’s evidence, how much, if any, of the testimony it accepts. As McLachlin J. put it, at p. 836:
More problematic is a challenge to credibility based on the witness’s alleged lack of truthfulness and sincerity, the problem posed in this appeal. The reasoning here is that the witness may not have been telling the truth for a variety of reasons, whether because of inconsistencies in the witness’s stories at different times, because certain facts may have been suggested to her, or because she may have had reason to concoct her accusations. In the end, the jury must decide whether, despite such factors, it believes the witness’s story, in whole or in part.
2. Credibility assessment does not depend solely on objective considerations such as inconsistencies or motives for concoction ...
3. The jury is entitled to decide how much weight to give to factors such as inconsistency and motive to concoct. Particularly where the complainant offers an explanation for inconsistencies, the jury may reasonably conclude that those inconsistencies lose “their power to raise a reasonable doubt with respect to the accused’s guilt”: François, at p. 839. ...
4. To sum up, the reviewing court must be deferential to the collective good judgment and common sense of the jury. ...
[11] After cautioning, at paragraph 27, that the appellate court “must not act as a ‘13th juror’ or simply give effect to vague unease or lurking doubt based on its own review of the written record”, Cromwell J., for the Court, added:
[28] On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence. A positive answer to the question of whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court. Rather, the court is required “to review, analyse and, within the limits of appellate disadvantage, weigh the evidence” (Biniaris, at para. 36) and consider through the lens of judicial experience, whether “judicial fact-finding precludes the conclusion reached by the jury”: para. 39 (emphasis added). Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially could reasonably have rendered, the reviewing court must ask not only whether there is evidence in the record to support the verdict, but also whether the jury’s conclusion conflicts with the bulk of judicial experience: Biniaris, at para. 40.
[12] Cromwell J. continued with some examples, and concluded:
[29] ... What all of these examples have in common is that accumulated judicial experience has demonstrated that they constitute an explicit and precise circumstance that creates a risk of an unjust conviction.
Application - Welsh J.A.
[17] In her instructions to the jury, the trial judge summarized the evidence of the complainant, pointing out inconsistencies in his statement to the police and his testimony at the preliminary inquiry and at trial:
You heard [the complainant] being cross-examined by defence counsel, Mr. Piercey, regarding discrepancies and differences in his evidence at trial when compared to the statement to the police and his testimony at the preliminary inquiry. [The complainant] stated to the police that the first incident involved a car ride. At trial he said it was a motorcycle ride. [The complainant] told you he asked to go for a motorcycle ride and Mr. Waterman hemmed and hawed, whereas he said at the preliminary inquiry that it was Angus Waterman’s idea. At trial [the complainant] recalled one time Angus Waterman had an erection. To the police he stated that on many times Angus Waterman would make him “jerk him off” and Mr. Waterman [would] “come in his hand” and Mr. Waterman would lick it off. You heard [the complainant] state that the police statement is not totally accurate and it is what he remembered at that moment. He stated he was all over the place. It was all pieced together like a puzzle [and] that he had to get counselling to get it right. [The complainant] agreed he told police Mr. Waterman raped him anally as that is what he remembered in 2015. [The complainant] admitted that allegation of anal rape was not accurate. [The complainant] agreed he also told the police he would go to Mr. Waterman’s place and he would make him lie on the floor, then Mr. Waterman would poop and pee on him and smear it over him and ejaculate over him and then make [the complainant] take a shower. [The complainant] explained that a lot he said was triggered by nightmares day in and day out for many years. He stated what he said to the police about the pooping and peeing at Mr. Waterman’s place was not reality, it was part of a dream. [The complainant] did not say in his statement or at the preliminary inquiry that [Mr. Waterman’s spouse] told him to get out. [The complainant] was shown a diagram of the apartment on Adams Avenue and stated it was not as he remembered it. [The complainant] defriended (sic) Mr. Waterman on Facebook when Mr. Waterman’s mother died and he tried to be nice and keep everything quiet. Then Angus Waterman’s son did something in Twillingate and [the complainant’s] sister sent him a video link and his son’s actions triggered the memoires (sic) about Angus Waterman that he had forgotten since 1999.
[The complainant] told the police what he remembered at that time which was 2015 and afterwards he got counselling to try to put it together. Crown and defence agreed the Jehovah Witness Church was built Labour Day weekend in 1987. [The complainant] testified that he had punched Mr. Waterman when he was 13 years old [in 1981] on the street at the Jehovah Witness Church. [Mr. Waterman’s spouse] testified she did not see [the complainant] in any apartment or place they occupied and did not tell him to get out. She did not even own a vehicle with a bench seat until 1985. You heard [Mr. Waterman’s spouse] say they lived at the Adams Avenue apartment between the winter of 1981 and October 1982 and it was not a bachelor apartment as described by [the complainant].
Angus Waterman described the vehicles they owned from 1975 to 1985 as a yellow Toyota, a white SR5 Toyota and a light blue Volare. He purchased a 1975 Norton Commander motorcycle in 1976. Mr. Waterman stated [the complainant] was not in any vehicle with him or on any motorcycle with him. You heard Mr. Waterman testify that the only incident with [the complainant] was when he suspected he was stealing the licence plate and he told him not to come around his place any more. Angus Waterman testified nothing of a sexual nature ever occurred between him and [the complainant].
[18] It is clear that, in her charge to the jury, the trial judge drew attention to numerous significant inconsistencies in the complainant’s statement to the police and his testimony at the preliminary inquiry and at trial. The complainant’s explanation was that what he told the police was what he remembered at that time, that is, prior to counselling. That explanation is different in kind from the explanation the complainant in W.H. gave regarding her first police interview. In W.H., the complainant admitted that she had not been forthright and truthful because she felt uncomfortable and embarrassed during the interview. Her inconsistencies amounted to a question of untruthfulness which the complainant explained. It was for the jury to decide whether the contradictions in her testimony were neutralized by her explanation.
[19] The same situation does not apply in this case. The complainant’s explanation for numerous substantial differences in describing the incidents did not amount to untruthfulness based on the circumstances in which the statement was given to the police, a matter that fell in W.H. within the experience and common sense of the jury to assess. Rather, the complainant explained that he remembered what had happened as a result of counselling.
[20] This leads to the issue raised in François, that is, recovered memory. In François, the complainant explained that her blocked memory was recovered after ten years when, for purposes of regaining custody of her child, she had spoken to the Children’s Aid Society and the police. She testified that “her memory of the assaults by Mr. François had been blocked, only to be revived after discussions with the people at the Children’s Aid Society and the police about the importance of ‘admission on [her] part that things had happened to [her]’” (at page 840). This is very different from recovering a memory through or by means of counselling. Indeed, McLachlin J. indicated that, in the circumstances, it was unnecessary to address “the controversy that may surround the subject of revived memory amongst experts” (François, at page 840).
[21] In this case, the numerous substantial inconsistencies in what was alleged by the complainant when he went to the police to give a statement and what he later testified to arose directly from the complainant’s access to counselling. He admitted that some of what he told the police had not happened in reality, but was triggered by nightmares or was part of a dream. He testified that he had to have counselling “to get it right”, to get it “all pieced together like a puzzle”.
[22] It is clear that the complainant’s counselling sessions and their effect were critical to assessing whether the inconsistencies, which were numerous and substantial, were neutralized by the complainant’s explanations. That is, issues related to counselling, such as the manner in which the recovered memory was triggered, the passage of forty years, the effect of dreams and nightmares, the age of the complainant at the time of the incidents, and in particular, the potential for tainting or suggestion, etc. were, of necessity, engaged. In François, McLachlin J. wrote that it was not necessary, on the facts of that case, to comment on “the controversy that may surround the subject of revived memory amongst experts” (at page 840). In that case, counselling was not used to revive or refine the complainant’s memory.
[23] By contrast, the circumstances in this case call for expert evidence to explain considerations that would be relevant in assessing the effect of the complainant’s counselling, particularly insofar as factors and concerns would not fall within the ordinary experience and common sense of the members of a jury. However, the Crown, which had the onus of proving the offences beyond a reasonable doubt, did not adduce expert evidence to assist the jury in assessing the possible effect of counselling on the complainant’s explanation for the numerous and substantial changes in his story.
[24] In some cases, the jury, applying its experience and common sense, would be in a position to assess the complainant’s evidence without the assistance of expert evidence. However, given the nature and extent of the inconsistencies in this case, and the manner in which the complainant recovered the memory by relying on counselling, it cannot be said that the jury had the necessary tools to reasonably resolve such doubt as may have been created by the inconsistencies. This amounted to a failure by the Crown to provide the necessary evidentiary basis for a conviction.
[25] In the circumstances, a properly instructed jury acting judicially could not reasonably have rendered a verdict of guilty beyond a reasonable doubt. Accordingly, the verdict must be set aside. Because this amounted to a failure by the Crown to adduce evidence sufficient to prove its case beyond a reasonable doubt, an acquittal is the appropriate remedy.
Application by White J.A.
[54] Of particular concern are the inconsistencies between the complainant’s initial statement to London police and his testimony before the jury respecting the nature of the acts that he alleged to have occurred. Stating to the police that the accused actually committed certain acts, but later telling the jury that the accused merely threatened such acts; or characterizing the nature of the incidents quite differently, are significant inconsistencies in the complainant’s testimony. Read together with matters such as in which house or apartment an event took place or whether events took place on a motorcycle or in a car, or in a car with or without bench seats, the cumulative effect of the inconsistencies, both more or less significant, should raise suspicion in any judicial reviewer as to whether the Crown has established proof beyond a reasonable doubt. Thus, the first step in the analysis is satisfied and now it is necessary to proceed to the ultimate question whether, considering the totality of the evidence a reasonable jury could have come to the conclusion it did.
[55] At trial, the complainant provided his explanation for the inconsistencies in his evidence. He stated that the inaccuracies between his initial report to police and his statement to the jury were largely due to the fact that, between the making of these two statements, he had the benefit of attending counselling. Through this process, he was able to piece his memories together so that, by the time he was in front of the jury, his statements, he swore, were accurate. This was his explanation for the inconsistencies, which the jury had to determine whether or not they believed. This explanation also applied to the inconsistency between the complainant’s testimony at the preliminary inquiry and at the trial, though the preliminary inquiry took place well after the statements to London police.
[57] There was no question that the complainant’s testimony was inconsistent with his prior statements. During cross-examination, the complainant himself acknowledged that there were inconsistencies between his retelling of events at various points throughout the proceeding, thereby making his credibility an issue for the jury.
[58] The jury was not made aware of what the complainant discussed in counselling or how counselling may or may not have resulted in a more accurate recollection of the events. Viewed through the lens of judicial experience, a jury acting judicially requires more than a complainant providing his or her own justification for making drastically different earlier statements where the explanation given by the complainant calls for unverified assumptions as to how professional counselling could have assisted the complainant in sorting out his memories.
[59] In my view, the complainant’s evidence was of such a nature that it was unsafe to rely on it as the basis for a conviction. A similar result was reached by the Supreme Court of Canada in R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, 139 Nfld. & P.E.I.R. 147. In that case, the Court found that the obvious inconsistencies and falsehoods in the alleged victims’ evidence made unreasonable the trial judge’s finding that the witnesses were credible. While this was not a jury verdict, Sopinka J., writing for the Court, went so far as to say that he could not accept that “any trier of fact, acting judicially, could have found any merit in the claims” (emphasis added) of either of the witnesses (Burke, at 494). In this case, the complainant’s evidence was of a similar nature. It was fraught with material inconsistencies which would cause any reasonable juror to question whether the allegations were proven beyond a reasonable doubt.
[60] The entirety of the inconsistencies in this case, when viewed comprehensively, and the absence of any explanation for the inconsistencies that was supported with evidence, would leave significant suspicion in the mind of any trier of fact as to the overall reliability of the complainant’s testimony. The suspicion created in this case is more than “vague unease” or “lurking doubt”, which alone would not be enough to signal that a further analysis is needed. Rather, upon reviewing the evidence put before the jury, serious doubts arise in relation to the complainant’s reliability resulting in concern that the jury relied on this evidence in convicting the appellant.
[66] In this case, judicial fact-finding requires the approach to reasonable doubt as described by this Court in Kennedy. The question before this Court is whether the properly instructed jury acting judicially could reasonably have been satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence (R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55; R. v. Fries, 2017 MBCA 58, at para. 10).
[67] For the reasons stated above, the evidence of the complainant was not credible, and could not have been accepted by a fact-finder, acting judicially.
[68] The complainant acknowledged that his memories were “like a puzzle” and he did not explain how this puzzle was pieced together during counselling. What could the jury have found credible about such inconsistent evidence? What basis did the evidence provide for the jury’s conclusion?
R v Odle (ONSC)
[July 12, 2020] Charter s.9 - Police Ruse Traffic Stop - 2020 ONSC 3991 [Mr. Justice Kofi Barnes]
AUTHOR’S NOTE: Although highway traffic laws give police many powers of investigation, they may not use them as a ruse to investigate criminal offences. When the primary purpose is a criminal investigation, police actions turn into a Charter infraction. Here, despite the accused's police avoidant behaviour in his car, the drug evidence was excluded.
Pertinent Facts
[4] Mr. Odle was arrested on January 11, 2019, after a traffic stop by Ontario Provincial Police (“OPP”) Cst. Dunfield. Cst. Dunfield requested the assistance of Sgt. Briggs. As a result of the police interaction with Mr. Odle, the police determined that Mr. Odle was subject to a judicial interim release. The police also determined that Mr. Odle was in breach of the conditions of that release requiring him to travel with his surety and not be in possession of a cellphone. Police therefore arrested Mr. Odle and searched his vehicle incident to that arrest. The search yielded three bags of cocaine weighing 251.1 grams, 44 grams and 55.9 grams. The search also yielded two cellphones, a black digital scale and some Canadian currency. Mr. Odle was charged with the offences previously described.
The Law on Ruse Stops - Charter s.9
[9] The purpose of s. 9 is to protect individual liberty from unlawful state interference: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 20. The police or state actors may detain or imprison an individual only to the extent the law permits them to do so: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 15. An unlawful imprisonment or detention is arbitrary and in breach of s. 9 of the Charter. Therefore, the analysis requires a determination of: 1) whether the individual was detained; and 2) if the individual was detained, whether the detention was arbitrary: R. v. Le, 2019 SCC 34, [2019] S.C.J. No. 34, at para. 29.
[11] Random traffic stops constitute an arbitrary detention under s. 9 of the Charter because they are not based on reasonable grounds or suspicion, are random, and are at the police officer’s absolute discretion. However, s. 216(1) of the HTA authorizes a police officer to stop vehicles for highway regulation and safety purposes, even where the stop is random: R. v. Gonzales, 2017 ONCA 543, at para. 55. This has been upheld as constitutional by the Supreme Court of Canada in R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257. However, the authority to conduct random stops is not unfettered. Random stops must be limited to the statutorily-sanctioned purpose: Gonzales, at para. 60. Unless other grounds arise which permit further detention, the stop must also be brief and limited to the roadside: Gonzales, at para. 55.
[12] At a traffic stop, s. 216(1) of the HTA also authorizes a police officer to conduct a visual inspection of the interior of the vehicle in order to address police safety concerns: Gonzales, at para. 56. More intrusive searches of the vehicle and non-HTA inquires of the occupants are not permitted: Gonzales, at para. 56; Brown v. Durham (Regional Municipality) Police Force (1998), 1998 CanLII 7198 (ON CA), 43 O.R. (3d) 223 (C.A.), at para. 24; Ladouceur, at pp. 1286-1287; R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615, at pp. 623-24.
[13] In addition to a s. 216(1) purpose, a police officer may have additional non-traffic related purposes. To rely on s. 216(1), the additional purpose must co-exist with a legitimate s. 216(1) purpose. The additional purpose must not be improper, or proper but pursued through improper means, and must not constrain the individual’s liberty beyond what was contemplated by s. 216(1): Durham Police Force, at paras. 31, 34, 37-39, 45; Gonzales, at para. 58. In other words, an officer may simultaneously have an HTA purpose and a criminal law purpose in mind: R. v. Mayor,2019 ONCA 578, at para. 8. However, the HTA may not be used as a ruse or pretext to stop a vehicle for the purpose of conducting a criminal investigation: Mayor, at para. 9; Durham Police Force, at p. 234; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 36.
[14] The reason for a traffic stop is a factual determination....
Findings of Fact
[16] On January 11, 2019, both officers were part of the OPP’s Highway Enforcement Team (“HET”). There is a difference in how Cst. Dunfield and Sgt. Briggs described the mandate of HET. Cst. Dunfield testified that the mandate of this team was to search for evidence of guns, drugs and human trafficking on OPP-patrolled highways. A reasonable inference at this stage is that road safety enforcement was HET’s secondary purpose....
[Court describes a variety of avoidance techniques by Mr. Odle. None of which are in themselves illegal] [25] I find that Mr. Odle was acutely aware of Cst. Dunfield’s presence during the very recent lane changing saga. I am also satisfied that Mr. Odle still had his eye on Cst. Dunfield’s vehicle. I therefore find that Mr. Odle was aware of Cst. Dunfield’s presence, had seen the activated lights, and decided not to comply.
[29] It is reasonable to conclude that as Cst. Dunfield was observing Mr. Odle slowing down, he could see into Mr. Odle’s vehicle. The front windshield of Mr. Odle’s vehicle was not tinted. Therefore, it is also reasonable to conclude that Cst. Dunfield saw that Mr. Odle was a Black man before the three-way stop in the parking lot. However, I find that Cst. Dunfield made the decision to stop Mr. Odle’s vehicle on the basis that it was a rental vehicle before he saw that Mr. Odle was a Black man.
[31] Cst. Dunfield also asked Mr. Odle for the rental agreement. After a search, Mr. Odle could not find the rental agreement. He told Cst. Dunfield that he could use his cellphone to call his girlfriend to get the rental agreement. Cst. Dunfield told him that was not necessary. While Mr. Odle searched for the rental agreement, Cst. Dunfield conducted a visual search of the interior of the vehicle. He observed a black Nike bag on the front passenger seat. Cst. Dunfield testified that he also detected the smell of cocaine. He described this smell as acidic in nature.
[32] During this first interaction, Cst. Dunfield asked Mr. Odle where he was heading and why he took the Queen Street exit. Initially, Mr. Odle said he was going to see his girlfriend. Cst. Dunfield pointed out that his answer was incongruent with his stated destination. Mr. Odle then changed his answer and said that he was going to the mall. This made Cst. Dunfield suspicious. It also supports a finding that Mr. Odle intended to evade the police.
[33] At 8:52 p.m., Cst. Dunfield returned to his police vehicle, called Sgt. Briggs via cellphone, and told him that he had conducted a traffic stop and smelled cocaine in the vehicle. He requested assistance to investigate a possible drug offence. Sgt. Briggs confirmed this communication with Cst. Dunfield. When Sgt. Briggs arrived on scene, he did not smell cocaine.
[34] Cst. Dunfield then conducted a check on Mr. Odle with police communications. The check revealed that Mr. Odle was subject to a judicial interim release order on outstanding drug trafficking charges. The check also revealed that at the time of the traffic stop, Mr. Odle was in breach of the conditions not to possess a cellphone and not to be out of his residence unless in the presence of his surety. Sgt. Briggs also heard this information broadcasted over the police radio. Upon receiving this information, Cst. Dunfield formed the requisite grounds to arrest Mr. Odle for breaching the terms of his recognizance.
[42] At 9:03 p.m., Cst. Dunfield read Mr. Odle the cautions and placed him in the police cruiser. By 9:04 p.m., Cst. Scime had arrived on scene. The three officers searched Mr. Odle’s vehicle incident to his arrest. The search yielded the cocaine and other items previously described. Mr. Odle was advised of the discovery and arrested for drug offences.
Finding on s.9 Issue
[46] The Crown asks the court to consider the cumulative effect of Sgt. Briggs’ and Cst. Dunfield’s evidence to conclude that enforcement of road safety was the purpose for the stop, and that discovery of guns, drugs and human trafficking was an additional purpose co-existing with the legitimate road safety purpose. The difficulty with the Crown’s submission is that it was Cst. Dunfield alone who made the decision to conduct the traffic stop. It was his intent that is the controlling factor in determining the reason for the traffic stop. However, for the reasons outlined below, I conclude that the purpose for the roadside stop was not a legitimate road safety purpose but was rather a ruse to conduct a criminal investigation.
[47] Cst. Dunfield initially testified that the HET mandate was to search for guns, drugs and human trafficking. He later clarified this statement and said that a road safety purpose would be the reason for a traffic stop. He testified that at a traffic stop, he would look around, and if he did not notice anything nefarious, the driver would be free to go.
[48] Cst. Dunfield also testified that drivers of rental vehicles typically did not have the appropriate driving documentation and were also more likely to be involved in criminal activities. He testified that on that day, he was targeting rental vehicles. He told Mr. Odle that the reason for the traffic stop was because Mr. Odle was driving a rental vehicle and he wanted to confirm whether he had a valid driver’s licence. In cross-examination, Cst. Dunfield conceded that if his licence check had not revealed that Mr. Odle was driving a rental vehicle, he would have had no reason to stop him. This belies Cst. Dunfield’s testimony that his purpose was to randomly enforce the road safety mandate of s. 216(1) of the HTA. On the contrary, the statement demonstrates that the primary purpose was to conduct a criminal investigation as he believed that driving a rental vehicle increased the probability that the driver was involved in a criminal offence. I therefore find that the HTA stop was only a ruse to conduct a criminal investigation.
[49] In addition, though Mr. Odle appeared nervous and Cst. Dunfield smelled what he thought was cocaine, prior to conducting the check of Mr. Odle’s identification with communications, he did not have a reasonable suspicion that Mr. Odle had committed a criminal offence. What he had was an educated hunch, and yet he radioed Sgt. Briggs asking that he come to the scene because he wished to conduct a drug investigation. This was before conducting the check or receiving information from communications about the judicial interim release conditions. This is another indication that Cst. Dunfield’s intent was always to conduct a criminal investigation, not to enforce road safety.
[50] For these reasons, I conclude that Cst. Dunfield relied on the HTA as a ruse to stop Mr. Odle’s vehicle in order to conduct a criminal investigation. This constitutes a breach of Mr. Odle’s s. 9 Charter right as his detention was unlawful and thus was arbitrary.
Charter s.24(2) Analysis
Seriousness of the Infraction
[69] Regarding the seriousness of the Charter-infringing state conduct, I find that all police officers in this case conducted themselves in good faith. The interaction with Mr. Odle was professional and measured, even in the face of his resistive conduct and the dangerous possibility that he would attempt to flee the scene. However, Cst. Dunfield conducted the traffic stop and used the HTA as a ruse to act on a strong hunch and conduct a criminal investigation. His hunch was right. However, the ends do not justify the means. The violation of Mr. Odle’s Charter right was serious. I also find that Cst. Dunfield’s conduct was deliberate. It involved the unlawful and thus arbitrary detention of an individual. To condone such conduct would shake the public’s confidence in the justice system. This consideration favours exclusion of the evidence.
Effect on the Protected Interests of the Accused
[70] The impact of the breach on Mr. Odle’s Charter-protected right also favours exclusion. The s. 9 breach had a significant impact on Mr. Odle’s right not to be arbitrarily detained or imprisoned. In effect, he was detained and investigated without cause (i.e. without reasonable suspicion or reasonable grounds). To admit the evidence obtained would signal to the public that the right to be secure against arbitrary detention or imprisonment rings hollow. Admission will breed public cynicism and bring the administration of justice into disrepute.
Balancing
[71] A consideration of society’s interest in adjudicating this case on its merits favours inclusion of the evidence. The evidence is reliable, the Crown’s case is very strong, and without the evidence, the Crown has no case against Mr. Odle. On balance, I conclude that the admission of the evidence obtained by Mr. Odle’s arbitrary detention would bring the administration of justice into disrepute. The court must dissociate itself from such conduct.
Charter s.24(2) Analysis
R v AK (ONCA)
[July 2, 2020] – Credibility of the Accused - Irrelevant Factors – 2020 ONCA 435 [Doherty, MacPherson and Benotto JJ.A.]
AUTHOR’S NOTE: Herein, the ONCA shows 4 reasons that cannot reasonably undermine the evidence an accused a historical sexual assault case. These factors are useful for argument in any such case as they are quite common issues of contention: lack specificity in description of not memorable events, significant detail in some not-memorable events, and testimony that distances the accused from the complainant (where this is consistent with the complainant).
Pertinent Facts
[1] The appellant, A.K., is K.H.’s (the complainant) half-brother. They have the same father. In 2017, the appellant was charged with two counts of sexual assault. The offences allegedly occurred in 2008 or 2009, when the appellant was 14 or 15 and the complainant was between 6 and 8. After a brief trial, in which the complainant and the appellant were the only witnesses, the trial judge found the appellant guilty on both charges. She imposed conditional discharges on both counts with 18 months’ probation.
[4] The complainant testified one night when the appellant was sleeping over with his father, he came into her bedroom. She was lying in bed facing away from the door. She awoke to find the appellant standing beside her bed. He touched her legs, butt and vagina over her clothing. When he tried to put his hands in her pants, the complainant rolled over away from the contact. The appellant left her room. Neither the appellant, nor the complainant said anything during the incident. It lasted about two to five minutes.
[6] When the complainant stayed at her father’s, she slept on a recliner in the living room. One evening, when she was lying on the recliner, she saw the appellant sitting on the couch watching television close by. She felt the appellant touching her chest, her bum and her back. The touching was over her clothing. The complainant stirred in response to the touching. The appellant stopped and went back to watching television. Shortly afterward, the complainant got up from the recliner and went into her father’s bedroom.
Appellants Trial Testimony
[10] The appellant testified and denied sexually assaulting the complainant.
[11] The appellant testified he had slept over at the mother’s residence in Leamington on only one occasion. He recalled sleeping there so he and his father could drive his brother to the bus station to attend a cadet camp in Barrie the next day. The appellant denied he went to the complainant’s bedroom and sexually assaulted her during the night. The appellant recalled other brief visits at the home in Leamington when he and his father went to that town for the appellant’s lacrosse games.
[12] The appellant lived with his mother. He testified he visited his father on occasion, although at times their relationship was strained. He recalled when his father lived in Kingsville, he would stay at his father’s on the weekend, so he could get up early and go to work with his father and grandfather at the produce market in Detroit. According to the appellant, the complainant did not stay overnight at the father’s residence in Kingsville on any occasion when the appellant stayed there overnight.
[13] The appellant also denied the “Barbie doll” incident. He testified he had no interest in playing with Barbie dolls or talking to his much younger half-sister about Barbie dolls.
[14] According to the appellant, there was “not much of a relationship” between him and the complainant. They seldom saw each other, and he was much older than her. In the appellant’s mind, there had never been any problem between himself and the complainant. The complainant also described her relationship with the appellant as “kind of distant”. She rarely saw him. There was never any animosity between them.
[18] The appellant submits, however, the trial judge’s treatment of, and outright rejection of, the appellant’s evidence does reveal error. The trial judge gave four reasons for rejecting the appellant’s evidence:
- the appellant couched his denials in tentative or conditional language such as “I wouldn’t have been there” or “that would never have happened”;
- the appellant repeatedly emphasized he had no relationship with the complainant, in an apparent effort to distance himself from the complainant;
- the appellant absolutely denied the “Barbie doll” incident, insisting he would never go into the complainant’s room to talk with her; and
- the appellant professed to have a remarkably detailed recollection of his father’s home, including the furnishings and where his father habitually sat.
[19] There are problems with each of the reasons advanced by the trial judge for rejecting the appellant’s evidence.
Phraseology
[20]....For example, when asked whether he had any recollection of the incident at his father’s home, the appellant replied:
No I do not, that would not have happened.
[21] The trial judge offers no explanation for her conclusion that the appellant’s phraseology was indicative of a lack of credibility. It must be borne in mind the appellant was being asked about events that may or may not have occurred about 10 years earlier. Some of those events were not memorable. It is not surprising a witness, when asked about events from long ago, would, in attempting to answer honestly, not speak in definitive terms, but rather speak in terms of what “would have” or “would not have” happened. The phraseology used by the appellant from time-to-time in some of his answers could not reasonably offer any insight into his credibility.
Appellant's Description of his Relationship with the Complainant
[22] The trial judge found that the appellant, in his testimony, “emphasized over and over again the non-relationship that he had with [the complainant]”. The trial judge saw this as an attempt to “distance himself” from the complainant.
[24] Second, and more importantly, the appellant’s description of his relationship with the complainant was essentially the same as the complainant’s description of the relationship. Both described the relationship as distant and largely non-existent, because they seldom saw each other, and the appellant was several years older than the complainant. The trial judge’s finding the appellant misrepresented the nature of his relationship with the complainant is inconsistent with the complainant’s evidence, the only other evidence about the nature of the relationship, and inconsistent with the trial judge’s finding that the complainant’s evidence was credible.
The Barbie Doll Evidence
[25] As outlined above (see para. 17), the trial judge found the qualified or conditional nature of some of the appellant’s answers demonstrated he was not a credible witness. The trial judge took the opposite approach in respect of the appellant’s evidence about the “Barbie doll” incident. The trial judge determined that the appellant’s “absolute” denial he would ever go into the complainant’s room to speak to her while she was playing with her Barbie dolls indicated he was not a credible witness. Bearing in mind the age difference, the distant nature of the relationship between the appellant and complainant, and the evidence the appellant did not visit the complainant’s home very often, it is not apparent why the trial judge treated the appellant’s unqualified rejection of the suggestion he would go into the complainant’s room to speak with her while she was playing with her Barbie dolls as a basis for finding the appellant was not a credible witness.
Appellant's Detailed Recollection of his Father's Home
[26] The trial judge found it “absolutely unbelievable” the appellant would recall, some 10 years after the relevant events, details about his father’s home, the furnishings, and where his father sat to watch television. There are two difficulties with that finding. First, the appellant’s recollection was not significantly more detailed than the complainant’s recollection of the furnishings in the room. Theappellant and complainant did disagree about the number of recliners in the living room. She said there were two, he said there was one. Apart from that, the descriptions were not dissimilar. Second, apart from the complainant’s evidence about the number of recliners in the living room, there was no evidence to suggest any of the other detail provided by the appellant was inaccurate. The trial judge simply assumed because the description was detailed, it was fabricated by the appellant in an effort to buttress his credibility. Based on this record, everything the appellant said about the house, with the exception of the number of recliners in the living room, may well have been entirely correct.
Conclusion
[28] The trial judge’s examination of the complainant’s evidence can be described as “considered and reasoned”. She did not, however, rest her rejection of the appellant’s evidence, or her ultimate verdicts, only on her analysis of the complainant’s evidence. Instead, the trial judge went on to reject the appellant’s evidence as untrue, citing four reasons for that determination. None of those reasons can support or justify her assessment. The trial judge’s reliance on factors that could not reasonably negatively impact on the appellant’s credibility must have played a significant role in her ultimate determination that, not only did she not believe the appellant, but his evidence did not leave her with a reasonable doubt.
[29] The appeal is allowed. The errors in respect of the assessment of the appellant’s credibility require that the findings of guilt be set aside. A new trial is ordered.
