This week’s top three summaries: R v MPH, 2022 BCCA 216: uneven #scrutiny alive, R v RM, 2022 ONSC 3747: #similar fact across counts, and R v Guerra, 2022 ONSC 3445: #jury summaries & aids.

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R v MPH, 2022 BCCA 216

[June 21, 2022] Uneven Scrutiny of Complainant Evidence [Reasons by Marchand J.A. with Butler and DeWitt-Van Oosten JJ.A. concurring]

AUTHOR’S NOTE: With the decision of R v GF, 2021 SCC 20 recently casting doubt about the continuing existence of uneven scrutiny as a stand-alone ground of appeal, this BCCA decision breaths fresh life into appellate overview of sexual offences. This is particularly important in cases involving historical allegations against children where fair assessment of credibility and reliability is the only defence against wrongful convictions. Usually there is no direct or physical evidence other than the word of the complainant. Consequently, it is important that trial judges do not give these particularly sympathetic criminal complainants a free ride though the assessment of reliability and credibility. Moreover, it is equally important that this type of evidence be subjected to appellate oversight. Uneven scrutiny is often the only legal means to demonstrate an unbalanced approach to the evidence. Here, the BCCA demonstrates that despite GF, this ground of appeal is alive and well in BC. The uneven scrutiny was demonstrated by the failure of the trial judge to consider that while the Crown witnesses' evidence was consistent, so were very large portions of the evidence of the accused. This rendered the consistency between the Crown witnesses on these points neutral. 

Introduction

[1] On December 10, 2020, the appellant, M.P.H. (“Mr. H”), was convicted of sexual interference, sexual assault and unlawful confinement in relation to events that transpired in 2011 in Prince George. He was acquitted of several other counts that are not material to this appeal. By application of the Kienapple principle, the sexual assault conviction was conditionally stayed. The trial judge’s oral reasons for judgment have not been published.

[2] The complainant was the son of Mr. H’s partner and was seven years old at the time of the events at issue. Although the complainant, his father (K.H.), his mother (T.W.) and his younger sister (H.H.) testified for the Crown, this was largely an “oath versus oath” case. There were no witnesses to the alleged sexual activity and there was no forensic evidence. Mr. H’s conviction turned on the trial judge’s assessments of credibility and reliability.

[3] Mr. H appeals his convictions on the basis that the trial judge applied uneven scrutiny and committed related errors in her assessments of credibility and reliability of the Crown and defence evidence.

Background

[8] In 2011, the seven-year-old complainant and his younger sister lived with their father in a small town in rural British Columbia, but spent the summer with their mother in Prince George. Mr. H was in a romantic relationship and lived with the children’s mother. He watched the children at least three days per week while their mother was at work or school.

[9] On the morning of the events at issue, Mr. H was looking after the children. Contrary to the rules of the house, the complainant and his sister left the house to play outside before Mr. H was awake. When Mr. H woke up and found the house empty, he opened the door and yelled for the children. They immediately surfaced and returned to the house. Mr. H placed the complainant in the basement and his sister in a washroom or storage area. There was a dispute at trial as to whether the doors to the basement and washroom/storage area were, or could be, locked.

[10] The complainant testified that Mr. H returned to the basement, pushed him down the stairs, and tied his hands and feet with rope. According to the complainant, Mr. H reached into the complainant’s pants and touched his penis for a few minutes. He then opened the complainant’s mouth with his hands and placed his penis in the complainant’s mouth. When the complainant tried to push Mr. H away with his shoulder, Mr. H struck him in the face. The complainant believed that he then blacked out.

[11] Mr. H denied that he tied up and sexually assaulted the complainant. He testified that for disciplinary reasons he gave the children a timeout. He acknowledged placing the complainant in the basement and his sister in the washroom, but denied locking the doors. He testified that the children were generally good and this was the only time he had given them timeouts in the basement and the washroom. He explained that on the morning in question he did not give them timeouts in another location because he did not want them to be in their rooms playing when they were supposed to be thinking about what they had done.

[13] The children’s mother testified that when she got home that day, Mr. H told her there had been an incident and he had disciplined the children by putting them in the basement. The complainant’s mother told Mr. H that this was not appropriate and that he should have put the children in their rooms. Mr. H generally acknowledged this conversation (although he testified that he told the complainant’s mother he put the complainant in the basement and the complainant’s sister in the washroom). Mr. H testified thReasons of the Trial Judgeat he agreed it would not happen again.

[14] According to the complainant’s father, when the children returned to live with him at the end of the summer, the complainant told him that Mr. H had locked the complainant in the basement....

[15] The complainant first disclosed to his father that Mr. H had tied him up in the basement in the fall of 2017. He did not disclose the sexual assault to his father until December 2017. Soon after the complainant’s disclosure of sexual abuse, the complainant and his father reported the events to the RCMP. The complainant had not previously disclosed the sexual abuse to his mother.

Reasons of the Trial Judge

[17] The judge found Mr. H was not a credible or reliable witness. In her view, his evidence with respect to the “critical events, shutting the children in the washroom/storage room and on the basement stairs for a timeout” was internally inconsistent and defied common sense: at para. 62. She reasoned:

[64] Placing them as he did on the morning in issue is not consistent with [Mr. H’s] evidence. Being punished by being shut into the locations they were is out of proportion to the behaviour to be punished and to their ages. It is also inconsistent with these children as not needing much discipline and with his choices for other timeouts.

[65] In my view, placing the children as they were is also inconsistent with common experience. That they were separated and shut in a washroom/storage area and the stairway to the basement is not a normal timeout....

[67] Other evidence also suggests that this was not a normal timeout. The events of that morning were significant enough, according to Mr. [H], that their mother was told about it later that day.

[68] Moreover, the events were sufficiently significant to [the complainant] that [the complainant] told his father after he returned [home] that he had been locked in the basement....

[71] In reaching my conclusions regarding credibility on these critical points, I am relying not only on common sense, but on Mr. [H]’s own evidence about these children and his experience with them, their need for discipline, where they were that morning, that they appeared as soon as called, and his other timeouts with them.

[19] The judge found the complainant credible and reliable based on: the clarity and conciseness of his testimony; his explanation of inconsistencies in his testimony; the fact that he was “unshaken” by a vigorous cross-examination; and the consistency of his testimony with other evidence: at paras. 74–76....

[22] After noting differences in the testimony of various witnesses regarding whether there were locks on the doors, the judge considered the significant feature to be that each of the children believed they were locked in: at paras. 80–84. She concluded that “Mr. [H] said or did something that led each child to believe that [they were] confined.” She accepted that both children believed that they were locked in: at para. 84.

[23] In cross-examination, the complainant admitted to lying to the police when he told them that he had previously disclosed the events involving Mr. H to his friend J.E., but did not provide her with “the whole story”: at para. 85. The judge accepted the complainant’s explanation that he lied because he did not want to get J.E. drawn into the investigation....

[24] The judge accepted that the complainant was able to provide greater detail at trial than he had given to the police regarding the rope that was used to tie him and how Mr. H opened his mouth because, as the complainant explained, he recalled more detail as he prepared for and gave evidence at trial. In the judge’s view this made sense as the complainant “undoubtedly [had to] dwell on these events and think about them carefully”: at para. 88.

[26] The complainant was cross-examined about an incident that occurred several years after the alleged sexual assault at a time when he was living with his mother. In that later incident, the complainant was choked by the child of his mother’s subsequent partner. He was asked why he did not tell his mother about what Mr. H had done when he disclosed the choking incident to her. The complainant answered that he was young, could not say what he was thinking and “didn’t have a memory of [the sexual assault] then.”

[27] ...It made sense to the judge that the complainant would not be thinking of events from years earlier when disclosing the choking incident that had just happened: at para. 92.

[29] The judge found that minor inconsistencies between the Crown witnesses did not undermine the substance of their evidence or their credibility: at para. 97.

[30] Finally, the judge concluded that the Crown had proven all of the elements of sexual interference, sexual assault and unlawful confinement beyond a reasonable doubt. In reaching this conclusion, she specifically stated that she did not accept Mr. H’s testimony on the points in issue, his testimony had not left her with a reasonable doubt and, after considering all of the evidence, she was satisfied that Mr. H was guilty.

[33] Trial reasons are the means by which judges are held accountable, ensure transparency in the adjudicative process and satisfy the public and the parties that justice has been done. Reasons are intended to explain what the judge decided and why. On appeal, the issue is whether the reasons disclose a reversible error: R. v. G.F., 2021 SCC 20 at paras. 68–69.

[34] Trial reasons are to be read functionally and contextually. They must be read as a whole and in the context of the live issues at trial, informed by the positions of the parties. Trial reasons are not to be finely parsed in search for error: G.F. at para. 69; R. v. Pastro, 2021 BCCA 149 at para. 53.

[35] In reviewing trial reasons, it is critical to review the record. Even if the trial reasons do not explain the “what” and the “why,” if those answers are clear from the record, there will be no reversible error: G.F. at para. 70.

[37] Credibility findings are central in most sexual assault cases. The task of articulating reasons supporting credibility findings is particularly challenging because the crime is typically committed in private and there is often no objective, independent corroborative evidence to aid in assessing credibility: G.F. at para. 81. See also R. v. Gagnon, 2006 SCC 17 at para. 20.

[38] ...Appeal courts must nevertheless consider whether the trial judge turned their mind to the relevant factors affecting the believability of the evidence in the factual context of the case, including truthfulness (credibility) and accuracy (reliability) concerns. It is noteworthy that “[a] trial judge’s determination to accept or believe inculpatory witness evidence includes an implicit assessment of truthfulness or sincerity and accuracy or reliability”: G.F. at para. 82.

[39] All of this said, appellate review of trial reasons must be based on the reasons actually given by the trial judge and not those that might have been given. In Pastro, Justice Fitch explained:

[54] ... [A]ppellate review must be based on the reasoning path reflected in the reasons for judgment. The need for a contextualized assessment of reasons on appellate review does not authorize an appellate court to sustain a result because reasons in support of that result might have been, but were not, given. Put differently, appellate review of a trial judge’s reasons for judgment, while informed by context, is necessarily circumscribed by the reasons actually provided in support of a particular result. As noted by Justice Deschamps and Justice Fish, dissenting in the result in Gagnon at para. 53, reasons for judgment serve as guarantors of the propriety of the verdict. Where they are shown to reflect error in principle or palpable and overriding error in fact, appellate intervention may be necessary.

[41] Mr. H relies on this Court’s decision in R. v. Roth, 2020 BCCA 240 at para. 47, for the proposition that it is an error of law to subject the evidence of the defence to more rigorous scrutiny than the evidence of the Crown. Though not expressed in this way, I take Mr. H to maintain that the corollary (that it is an error of law to take a more forgiving approach to the evidence of the Crown than the defence) is also an error of law.

[43] The Court set out the legal principles underlying “uneven scrutiny” as a ground of appeal at paras. 47–51:

[47] It is an error of law for a trial judge to subject the evidence of the defence to more rigorous scrutiny than the evidence of the Crown. See, for example: R. v. Singh et al., 2020 MBCA 61 at paras. 31–33; R. v. Mehari, 2020 SKCA 37 at para. 29; R. v. Murray, 2020 BCCA 42 at para. 82; R. v. E.H., 2020 ONCA 405 at paras. 40–41; R. v. Willis, 2019 NSCA 64 at paras. 40–45; R. v. Wanihadie, 2019 ABCA 402 at paras. 34–43; R. v. Kiss, 2018 ONCA 184 at paras. 82–83; R. v. Gravesande, 2015 ONCA 774 at paras. 18–19, 43.

[49] This is a notoriously difficult ground of appeal to make out: Mehari at para. 31; R. v. Radcliffe, 2017 ONCA 176 at paras. 23–26, leave to appeal to SCC ref’d, 37671 (7 December 2017). A trial judge has a unique advantage in hearing and seeing witnesses as they testify: E.H. at para. 44. Because of that fact, as well as other considerations, appeal courts afford substantial deference to a trial judge’s assessment of credibility, interfering with their credibility findings only in the face of overriding and palpable error: R. v. Wright, 2019 BCCA 327 at paras. 23–24; R. v. Vuradin, 2013 SCC 38 at para. 11.

[50] Consequently, to obtain a new trial on the ground that the judge applied different standards in the assessment of credibility, an appellant must persuade the appeal court of a demonstrably flawed assessment methodology or reasoning process that affected the credibility determination: see Wanihadie at para. 36 and the cases cited therein.

[51] For this reason, successful claims of an unbalanced approach to the assessment of credibility have often involved other identifiable errors, such as a misapprehension of material evidence; speculative reasoning; an overemphasis on demeanour; or a failure to consider testimony in the context of the evidence as a whole. Again, see Wanihadie at para. 38 and the cases listed there.

[44] As noted by the Crown, in G.F., the majority judgment expresses “serious reservations” about whether “uneven scrutiny” is a “helpful analytical tool to demonstrate error in credibility findings.”...

[45] All of this said, it remains the case that Roth, including all of its requirements, cautions and limitations, is binding in this jurisdiction. In my view, any application of the principles expressed in Roth must be mindful of these requirements, cautions and limitations, as well as the basis for the reservations about uneven scrutiny as a ground of appeal expressed by the majority in G.F.

Reasons of the Trial Judge

[47] As noted above, in G.F., the majority judgment expressed concern that relying on uneven scrutiny as a stand-alone ground of appeal may inappropriately suggest that “the testimony of different witnesses necessarily deserves parallel or symmetrical analysis.” This case presents a good example of the need for vigilance to ensure that such an approach is not taken.

[48] The testimonial ability of the two principal witnesses in this case was different and their testimony was therefore not amenable to “parallel or symmetrical analysis.” To her credit, the judge appreciated that she was required to take different approaches to her assessment of the testimony of the complainant, a child, and Mr. H, an adult. It is not an error in principle to apply different methodologies to the assessment of the testimony of different witnesses based on a difference in their testimonial abilities. In fact, in some cases (this one included) different methodologies will be necessary and appropriate.

[50] In my view, the judge’s reasons display an appropriate level of sensitivity to the fact that the complainant was seven years old when the events at issue took place, 14-years-old when he spoke to police and 17-years-old when he testified at trial. For instance, the judge accepted that the complainant perceived as a seven- year-old that he was locked in the basement. The judge also found that as a fourteen-year-old he would not have been capable of carefully crafting his statement to the police about the information he shared with J.E.

[51] Nevertheless, there is a problematic aspect of the approach the judge took to assessing the credibility and reliability of the complainant and Mr. H that has nothing to do with their ages and testimonial abilities.

[52] In finding the complainant credible and reliable, the judge relied on a number of factors, including the consistency of the complainant’s testimony with the testimony of other witnesses. The judge specifically identified the following consistencies as being supportive of the complainant’s testimony: the children were separated; the children were placed in the washroom/storage area and the stairs to the basement behind closed doors; the children believed they were locked in; and this was not a normal timeout.

[53] Except for the children’s perceptions of being locked in (a topic that Mr. H could not testify about), Mr. H’s testimony was also consistent with the evidence of other witnesses about the children being separated, where he placed them and this timeout being different from others. These consistencies were therefore neutral and did not make the complainant’s testimony more believable than Mr. H’s.

[54] In addition, when assessing Mr. H’s testimony, the judge did not take into account other pieces of evidence that were consistent with his testimony. In particular, Mr. H’s testimony was in harmony with important aspects of the narrative of events given by T.W. and K.H. regarding Mr. H’s self-initiated reporting of the timeouts to T.W., T.W. having told Mr. H the timeouts were not appropriate and the complainant’s disclosure to K.H. in 2011.

[55] In my respectful view, the judge should have recognized and grappled with the fact that Mr. H’s testimony aligned very well in material aspects with the testimony of others. The only significant departure between Mr. H’s testimony and the testimony of others was his denial of the sexual abuse (which was described only by the complainant).

[56] The judge’s differential treatment of consistencies is indicative of an uneven and flawed approach in her assessment of the Crown and defence evidence.

Did the trial judge err by relying on speculation and unfounded assumptions in her assessment of the complainant’s testimony?
[58] Trial judges are entitled and expected to rely on their life experience and common sense in assessing the credibility of witnesses and the plausibility of their testimony. Trial judges must be careful, however, to “avoid speculative reasoning that invokes ‘common sense’ assumptions not grounded in the evidence”: Roth at para. 65, citing R. v. Cepic, 2019 ONCA 541 at paras. 19–27 and R. v. Perkins, 2007 ONCA 585 at paras. 30–42.

[64] The complainant admitted that he lied to the police when he told them he had not told J.E. everything about the sexual abuse. When asked to explain why he lied, he explained “I was scared of getting her involved into this. That’s why.” In explaining why she accepted the complainant’s explanation, the judge held:

Having mentioned her name without thinking, he could well have regretted it and tried to protect her by saying that he had not told J.E. everything. He had reason to protect J.E. as J.E. had been sexually assaulted. [The complainant] may have wished to keep her from more inquiries about sexual assault. That [the complainant] lied to the police does not mean that he is lying to the Court.

[Emphasis added.]

[65] The judge was obliged to be sensitive to the complainant’s age at the time he spoke to the police and was entitled to accept his explanation that he wished to keep J.E. out of the police investigation. However, the portion of her reasoning which I have underlined above was not grounded in the evidence. The complainant did not testify that he mentioned J.E.’s name without thinking, regretted it and then tried to protect her. With the greatest respect, this aspect of the judge’s reasoning was speculative.

[66] Standing alone, the judge’s reliance on speculative reasoning in support of her finding that the complainant was a credible witness would not amount to reversible error. Nevertheless, it reduced the force of an incident involving demonstrated untruthfulness on the part of the complainant and, in that sense, contributed to her unbalanced scrutiny of the evidence.

Did the trial judge err by relying on speculation and unfounded assumptions in her assessment of Mr. H’s credibility?
[67] The trial judge rejected Mr. H’s testimony on the basis that the timeout in question was “not consistent with his own evidence or with common sense.” More specifically, she held that the timeout was: (1) out of proportion to the children’s behaviour and ages; and (2) inconsistent with the children generally not needing much discipline, Mr. H’s previous choices for discipline and common experience. She identified alternative punishments that would have been proportionate and appropriate.

[71] While the judge purported to ground her findings in Mr. H’s evidence and common sense, in my respectful view, she fell into error by relying on unfounded assumptions.

[72] Central to the judge’s rejection of Mr. H’s evidence was his testimony that the children were generally good and had previously not required much discipline. Notably, this was the first and only time that the children misbehaved in this fashion and the first and only time Mr. H gave them a timeout on the basement stairs and in a washroom/storage area.

[73] Two equally plausible inferences flow from Mr. H’s evidence. The one drawn by the judge was that, because the children were generally good, they did not require much discipline on the occasion in question. The other was that, because the children were generally good, Mr. H had not previously felt it necessary to impose this particular type of discipline.

[74] Like many aspects of human behaviour, there is no predictable, universal or “common sense” parental response to generally good young children going outside to play, without adult knowledge, permission or supervision and contrary to established rules.

[76] In this case, there was no evidence to assist the judge in discerning which inference to draw from the evidence that the children were generally good. Neither party led evidence regarding the circumstances surrounding other timeouts that Mr. H had given the children. So, there was no evidentiary basis for the judge to conclude that the timeouts at issue were abnormal or disproportionate in comparison to Mr. H’s previous discipline of the children or generally.

[77] In relying on Mr. H’s choice to give the children timeouts on the basement stairs and in a washroom/storage area to reject his testimony, it is apparent that the judge relied, in part, on her personal views regarding parental standards. There was no evidence of what generally accepted parental practices might consist of. Moreover, whether giving young children timeouts on the basement steps and in a washroom/storage area in the circumstances of this case was out of step with acceptable parental practices was not the matter before the judge.

[78] In my respectful view, the judge impermissibly filled an evidentiary gap by relying on unfounded assumptions about what constitutes normal and proportionate discipline of children. Doing so was central to her reasoning process. She specifically relied on her views about the disproportionate nature of the discipline to conclude that Mr. H had separated the children, led them to believe they were locked in and took the complainant to the basement to facilitate the sexual assault of the complainant.

Conclusion on the trial judge’s credibility and reliability assessments
[80] To sum up, the judge erred in taking an unbalanced approach to her assessment of the credibility and reliability of the complainant and Mr. H. She relied on consistencies between the testimony of the complainant and other witnesses to find the complainant to be a credible witness without grappling with the fact that the testimony of others also harmonized in material aspects with the testimony of Mr. H. Moreover, she resorted to speculative reasoning to support her conclusions that the complainant was a credible witness and that Mr. H was not.

[81] The judge’s credibility and reliability assessments were palpably flawed: Roth at para. 50. The cumulative effect of the errors in principle in her assessments amounts to a reversible error of law that necessitates a new trial.

[85] ...After the complainant testified that he told his mother about the choking incident, the following exchange took place:

Q   So, while you were living with your mother and [her partner and his daughter], you had no memory of Mr. [H] abusing you?

A   No, I didn’t.

Q   You agree? That’s --

A.  Yes.

Q   -- what your evidence is?

A.  Yes.

Q   And that’s why you didn’t share with your mother, because you lost the memory?

A.   I didn’t know, yeah.

Q   Pardon me?

A.  I didn’t have a memory of it then, yeah.

[87] I acknowledge and respect the judge’s privileged position as the experienced, objective and impartial person who saw and heard the witnesses testify. I also acknowledge that “[i]t is not enough for an appellant to suggest a different interpretation of the evidence” and “mere disagreement with the judge’s view of the evidence is not a reviewable error”: R. v. Christensen, 2021 BCCA 392 at para. 56. However, this is not a case where Mr. H simply disagrees with the judge’s interpretation of the evidence. Rather, in this case, the judge’s interpretation of the complainant’s testimony is not supported by the record.

[88] The complainant’s testimony that he could not say what he was thinking when he disclosed the choking incident to his mother was ambiguous, but his clarification was not. On further questioning by counsel for Mr. H, the complainant volunteered “I didn’t remember then.” In response to counsel’s efforts to eliminate any uncertainty about what the complainant meant, the complainant did not say “I was not thinking about it.” Rather, he agreed he had no memory of what Mr. H had done and he had “lost the memory.” He explained in his own words that he “didn’t know” and “didn’t have a memory of it then.”

[89] With the benefit of reference to the transcript of the complainant’s testimony, it is evident that the judge misapprehended his testimony that he had no memory of the abuse at the time of the choking incident. The more difficult question is whether this misapprehension was material and essential to the reasoning process that led to conviction.

[91] It is hard to say what verdict the judge would have reached without her misapprehension of the complainant’s evidence about his lack of memory. It is clear, however, that the judge’s misapprehension of evidence was central to her conclusion on the credibility and reliability of the complainant’s testimony and therefore could have affected the outcome of the case: Lohrer at para. 7; R. v. Smith, 2021 SCC 16 at para. 2; R. v. Drydgen, 2021 BCCA 125 at para. 43. The judge’s misapprehension of the complainant’s evidence played an essential part in the judge’s reasoning process and therefore amounts to a reversible error: Lohrer at para. 43.

Disposition

[101] In my respectful view, the trial judge committed reversible errors in principle by: (1) taking an uneven approach to her assessment of the credibility and reliability assessments of the complainant and Mr. H; and (2) misapprehending the complainant’s evidence about having no memory of the events at issue during a two- year period when he lived with his mother.

[102] In these circumstances, I would allow the appeal, set aside the conditional stay of the conviction for sexual assault, set aside Mr. H’s convictions, and order a new trial for sexual interference, sexual assault and unlawful confinement.

R v RM, 2022 ONSC 3747

[June 14, 2022] Similar Fact Application as Between Counts [Justice Conlan]

AUTHOR’S NOTE: This decision is a short denial of a Crown application for similar fact consideration between counts on an Indictment. Though not significantly expanded upon in the judgment, it is important to note that the Crown failed to bring the application at the close of its case before Defence decisions about testimony. This played a significant role in the ultimate prejudicial v probative analysis that caused the exclusion of this evidence. Crown counsel normally has to bring this application at the close of its case at the latest. The evidence here was persuasive and of moderately high probative value, but was excluded solely on the prejudicial v probative value portion of the test.

Introduction

[1] Mr. R.M. stands charged with two counts of attempted abduction of his son from the boy’s school, on two consecutive days in December 2018, plus one count of assault and one count of unlawful confinement, both of those charges also involving the same child and also stemming from the same offence date as the second attempted abduction. There is a fifth count on the Indictment, unrelated to this application.

[2] The matters are being tried in the Superior Court of Justice, with a jury. The jury will start deliberating tomorrow.

The Application
[3] The Crown brings a count-to-count similar act application, specifically with regard to counts 1 and 5 – the two attempted abductions of the accused’s son from the boy’s school on two consecutive days in December 2018.

The Positions of the Trial Participants

[4] R.M. acts for himself. He made no submissions on the application. Mr. Neil, appointed as amicus curiae, reminded this Court of the presumptive inadmissibility of similar act evidence, although he rightly acknowledged the rather strong similarity between what allegedly happened at the school on the first day and what allegedly happened at the school the day after...

[5] The argument by the Crown, a solid one, is that the application ought to be granted as the evidence at trial (now completed) suggests a strong similarity between the two alleged events at the school, high probative value in terms of whether R.M. had the necessary criminal intent on either or both dates, but especially on day one, and minimal prejudicial effect.

II. Analysis

The Law
[7] Similar act evidence is presumptively inadmissible. That is because it amounts to evidence of bad character, disposition, and general propensity. The burden is on the Crown to rebut that presumption on a balance of probabilities. The Crown must show that the proffered evidence is relevant to an issue in the case and that its probative value exceeds its prejudicial effect. R. v. Handy, 2002 SCC 56, at paragraph 55, and R. v. Tsigirlash, 2019 ONCA 650, at paragraph 26.

[8] There are several steps in the process to admitting similar act evidence, but the first two require (i) a clear identification of the issue that the proposed evidence goes toward, and (ii) an assessment of the degree of similarity between the events in question. R. v. Handy, supra.

[9] To address a potential mens rea argument is a legitimate reason for which similar act evidence may be ruled admissible. It is also true that the test for admission of count-to-count similar act evidence is not quite as rigorous as it is regarding extrinsic similar act evidence.

[10] There is no closed list of factors that the Court can consider in assessing the degree of similarity between the events in question, and the Court’s function is not to simply add up the number of similarities and the number of differences, but rather the task is to determine whether there is a “persuasive degree of connection” between the alleged events. R. v. Handy, supra, at paragraphs 82 and 123, and R. v. Johnson, 2011 ONSC 195, at paragraphs 136-137, and R. v. Bent, 2016 ONCA 651, at paragraphs 42-44, and R. v. Shearing, 2002 SCC 58, at paragraphs 48 and 60, and R. v. J.H., 2018 ONCA 245, at paragraph 20, and R. v. S.C., 2018 ONCA 454, at paragraph 23.

The Application of the Law to our Case

[11] I am persuaded on balance that the Crown has satisfied all necessary ingredients of a successful similar act application but for one – the overall balancing of probative value versus prejudicial effect. I have decided to dismiss the application on the latter basis.

[12] I would describe the probative value of the proffered evidence as being moderately high but not very high. It is not very high because, according to the child’s evidence at trial, the persistence or determination of the accused (things related to criminal intent) on day two were markedly different than what they were on day one. Essentially, per the child, on day two, R.M. forcefully grabbed him and pulled him towards a waiting car, while on day one R.M. exchanged a pleasant hello with the boy and then the boy ran away, with some uncertainty in the evidence as to whether R.M. gave any chase. On that evidence, I agree with the Crown that what allegedly happened on day two could strengthen the Crown’s argument that the accused intended to abduct the child on day one, but I also think that an equally strong inference is that the man had no such intention on day one but rather was angered by the boy’s reaction on that day, which anger spawned the accused’s intention on day two.

[13] On the other side of the coin, I would describe the prejudice to R.M. as very high. The first mention of the application at trial was after the accused elected not to testify and after the completion of the defence evidence. I am concerned that he might have made a different decision about his defence strategy if the application had been raised before any defence evidence was called. Further, I am concerned that Mr. Hotz may have employed his questioning of the child differently had he been thinking about the application at the time. Finally, I am concerned that the jury will use the evidence on count 5, which frankly is overwhelming, for much more than the issue of criminal intent as it applies to count 1. The practical result, I fear, despite any instructions that this Court may give, will be an automatic verdict of guilty on count 1. That would be an injustice.

III. Conclusion

[14] For these brief reasons, the application by the Crown is, therefore, dismissed. I reserve the right to deliver more fulsome reasons at a later date, but I wanted the trial participants to have something before their closing addresses are delivered.

R v Guerra, 2022 ONSC 3445

[June 8, 2022] Juries: Demonstrative Aids and Summaries [Justice M. Dambrot]

AUTHOR’S NOTE: Ultimately, this decision was a loss for the defence, but it is chalk full of useful strategic information for the defence. Defence counsel must not shy away from the use of courtroom demonstrative aids and evidence summaries for juries. These tools can be very persuasive when deployed by the defence. Here the issue was a "video summary" - fragments of videos extracted from a mass of video. This is admissible through evidence and subject to cross-examination. Jurors are not supposed to tested on their ability to recall locations of many needles in many haystacks - summaries can focus them on testing the evidence. Things to note: descriptions should not offer advice about inferences the party wants the jury to draw and a jury instruction is necessary to ensure no misuse of the documents. There are many forensic video service providers out there that are available to the defence. These should be sought where things relevant to the defence can be enhanced or isolated through manipulation of the video evidence in a case. 

[1] This ruling concerns the admissibility of a video chronology tendered by the Crown.

The Charge

[2] Kedar Guerra, Ethan Lee and Atneil Nelson are being tried by me, with a jury, on an indictment alleging that on December 31, 2019, at the City of Toronto, they committed the first degree murder of Clinton Williams. Clinton Williams was shot in the chest in the underground parking lot of the apartment building where he resided. He was shot by a man who emerged from a motor vehicle that followed the deceased down the parking lot’s entrance ramp.

The Crown's Position

[3] The Crown says that Lee was the man who emerged from the motor vehicle and shot and killed Williams; that Nelson was the driver of the vehicle; and that Guerra, who was a second passenger in the vehicle, arranged the shooting.

[4] A significant portion of the evidence relied on by the Crown to prove its case consists of phone records and surveillance video. The story that the Crown says is told by the evidence, and in particular by the surveillance video, in brief compass, is as follows.

[5] During the morning of December 31, 2019, Guerra and Williams communicated with each other on their cell phones. Guerra called Nelson before and after his calls to Williams. Nelson was in touch with Lee during the afternoon of December 31, 2019.

[6] Later in the afternoon of December 31, 2019, Nelson picked Lee up in a silver Mercedes Benz wagon (“Benz”) that he had borrowed from his girlfriend. Nelson and Lee then proceeded to the Travelodge Hotel in Scarborough in the Benz. The hotel is a short distance from the deceased’s apartment. Nelson and Lee were greeted by Guerra in the hotel parking lot. At 4:57 p.m., the three men entered a hotel room in the Travelodge along with Guerra’s fiancée.

[7] At 5:01 p.m., while he was in the hotel room, Guerra called the deceased. The call lasted 91 seconds.

[8] Nelson, Lee and Guerra left the hotel room at 5:24 p.m., got into the Benz and departed from the hotel.

[11] As the garage door opened, the Benz pulled onto the garage entrance ramp and then stopped halfway down. A person said by the Crown to match Lee’s description, wearing clothing that the Crown says matched the appearance of the clothing Lee was wearing at the Travelodge 45 minutes earlier, exited the Benz from the rear driver’s side door. A gun was visible in his hand approximately 3 seconds after he got out of the vehicle. He fired four shots in the direction of Williams at 6:03 p.m., one of which penetrated Williams’ back and entered his chest. The shooter then got back into the Benz. The shooter was outside the vehicle for less than 20 seconds.

[13] After the shooting, the Benz drove away at a relatively high rate of speed. The Crown says that the Benz can be seen in the parking lot of the Scarborough Town Centre in surveillance video at 6:13 p.m. and Guerra and Nelson can be seen inside the Centre in surveillance video at 6:18 p.m. Nelson and Lee partied together at a club later that evening (the evening of New Year’s Eve).

The Video Chronology

[15] While of course every case is different, this case is typical....

...The police began searching for video that would trace the movements of the vehicle both before and after the shooting. As a result, the police recovered a large mass of video.

[16] The challenge for the Crown, then, is to present this evidence in a manner that permits the jury to understand and assess the Crown’s case. We are long past the day when anyone would imagine that the video should simply be presented in bulk and left to the jury to pore through and assess with only the aid of the closing addresses of counsel. Crown counsel are entitled to separate the fragments of the video that they consider relevant and present them to the jury in some coherent fashion, typically serially or in a compilation video. The defence, of course, is free to compile and present what it considers relevant as well.

[17] I had occasion to address this issue in R. v. Chaudhry, 2021 ONSC 6589, where I stated, at para. 16:

It is also commonplace to provide the trier of fact with a compilation of pertinent extracts from a series of videos, often placing different images taken with different cameras in chronological order. Again, if not done in a misleading manner, this assists the trier of fact to understand the events being displayed. Doing this is no different than adducing schedules or summaries to effectively synthesize cumbersome and confusing evidence. This has long been an accepted practice in cases where a large body of documents have been led in evidence: R. v. Scheel (1978), 42 C.C.C. (2d) 31 (Ont. C.A.). This principle has been applied to composite videos in cases such as R. v. Zoraik, 2012 BCCA 283, at para. 22, and R. v. Barreira, 2017 ONSC 1665.

[18] However, even compiling and presenting the fragments of the video the Crown considers relevant has its challenges. It is very difficult to present fragments of video evidence taken at various locations and from different vantage points in a way that permits jurors to understand how the pieces fit together and how to fulfil their responsibility to reach a true verdict according to the evidence. As a result, trial judges have permitted the Crown to enhance the video presentation in a variety of ways to ensure that it is comprehensible.

[19] One frequently employed method of doing this is to have police officers who have meticulously reviewed the video evidence create a video chronology that: (1) stitches together in a document still shots captured from the fragments of video; (2) adds identifying information to the still shots relating to time, place and camera; (3) includes circles and arrows, where helpful, to draw the viewer’s attention to particular features in the still shot; and (4) summarizes what is seen in the individual still shots by means of short descriptions composed in as neutral a way as possible to identify what the compiler of the video says is depicted and, in some instances, to connect the shot to other shots.

[20] That is what the Crown has done in the video chronology under consideration here. To vastly oversimplify, the compilation covers a person whom the Crown says is Guerra arriving at a Travelodge hotel on December 30, 2019; two men that the Crown says are Lee and Nelson meeting Guerra at the hotel on December 31; all three men going to Guerra’s hotel room; the three men leaving the room; three men that the Crown says are the same three men getting into a vehicle; the vehicle proceeding to Williams’ apartment; the shooting; and the departure of the car.

[21] The three key purposes of the video compilation are: (1) to make it possible for the jurors to assess whether they are satisfied that the vehicle that left the Travelodge is the one that was present at the shooting; (2) to make it possible for the jurors to assess whether the three accused were in the vehicle at the time of the shooting; and (3) to make it possible for the jurors to assess whether Mr. Lee was the shooter.

Analysis

[23] In my view, the defence argument proceeds from a false premise: that since the video is the “original” evidence in this case, summaries of what is seen in the individual still shots and markings directing attention to persons or areas in the shots, are inadmissible, even when created in as neutral a way as possible to assist the jury in analyzing what they are seeing. Counsel for the accused say that it must be left solely to Crown counsel to undertake this task in their closing address.

[24] This notion that only original evidence is admissible is an evocation of the traditional best evidence rule. However, the traditional common law best evidence rule is no longer applied strictly. The rule is best considered today as a general guide for choosing the appropriate method of proof: R. v. Shayesteh (1996), 31 O.R. (3d) 161 (C.A.). Moreover, as noted by Martin J.A. in R. V. Scheel (1978), 42 C.C.C. (3d) 31 (Ont. C.A.), at para. 18, the introduction of summaries does not offend against the rule that requires the production of original documents where the primary source of the summaries is in evidence.

[26] Similarly, it has become widely accepted in recent decades that charts, schedules and summaries can be adduced in evidence to assist the trier of fact with organizing, clarifying, understanding and evaluating evidence that has already been led. A demonstrative aid that organizes or distils a large amount of information previously admitted in a trial can serve multiple purposes, including: (1) promoting trial efficiency; (2) organizing information already received in the trial; (3) decreasing the potential for confusion among the triers of fact; (4) streamlining the task of the triers of fact; and (5) assisting the jury to understand the evidence reasonably, intelligently and expeditiously. The usefulness of the summary will always depend on whether the trier of fact accepts the proof of the facts upon which the summary rests.

[27] If authority is needed for this practice as I have described it, I can do no better than referring to the decision of Fairburn J., as she then was, in R. v. Kanagasivam, 2016 ONSC 2250, 29 C.R. (7th) 201, at paras. 36-47. I note, in particular, that she stated, at para. 42, that in cases where a large body of documents have been filed, a party may wish to have them summarized so that their in cases where a salient and germane points are teased out.

[28] I see no difference in principle between document summaries and the video summaries here. A document summary is prepared by a witness who has reviewed the underlying documents and summarizes what the witness thinks the underlying documents are and what they convey. The same applies to fragments of videos extracted from a mass of video. It seems to me to be perfectly proper to permit a litigant to create a compilation of fragments of videos and affix brief summaries to them to assist the jury in following the litigant’s case.

[29] At the same time, I am alive to the concern raised by the accused that the jury should not retire to deliberate with documents crafted to, in effect, argue the Crown’s case. I observe, however, that while making evidence comprehensible to the jury in the manner proposed here certainly assists the Crown, aids such as these are not meant to be, and should not be permitted to be, tools for advocacy, or tools to paint a one-sided picture of one party's position. Rather, they are meant to facilitate juror comprehension of the evidence by clarifying and distilling them into a manageable and understandable format. In the words of Fairburn J. in Kanagasivam, at para. 48:

Assistance should be given to a jury where review of the evidence by them would be cumbersome, unduly time consuming, and confusing. Jurors are selected to assess the facts of a case, not so that they can be tested on their abilities to locate needles in haystacks. Any tools that they can be provided to perform their role as fact finders, fairly, with an even hand, and in accordance with the rules of evidence, should be accommodated.

[30] I would add that jurors should also not be tested on their ability to recall the locations of the many needles in the many haystacks in dozens of still shots extracted from a large volume of video that counsel draw to their attention in their closing addresses. As Fairburn J. put it at para. 66 of Kanagasivam, this case is not about testing this jury, it is about this jury testing the evidence. Moreover, to me, it is fairer to the accused for the summaries to be admitted through a witness, rather than appearing to have the personal endorsement of Crown counsel in their closing. Once again, I refer to Kanagasivam, at para. 71, where Fairburn J. noted that by having the summaries introduced by the creator as a witness, they can be challenged, and their limitations exposed through cross-examination, making for better jury comprehension.

[32] It is undoubtedly true that, in a situation like this one, even the selection of the video fragments that the Crown chooses to include in a compilation inevitably, to a certain degree, paints the picture the Crown favours, and might be seen as a modest form of advocacy. The same is true of the selection of still shots in a chronology. For example, the selection of one image of vehicles on a highway that the Crown says includes a vehicle of interest might omit other images that include similar vehicles. The descriptions do the same. However, to me, this is better described as illumination, not advocacy. The line is a fine one. To the limited extent that this kind of evidence can be seen as advocacy, it should be kept within reasonable bounds. This can be accomplished in a number of ways, as I will explain.

[33] First, of course, the defence is free to cross-examine the compiler of the chronology about alternative interpretations of the still shots, including by confronting them with other shots or other selections of video. Second, the defence is free to adduce in evidence an alternative selection of shots, to produce alternative accompanying narratives, or even to produce the same shots with different, fair annotations. Third, the Crown can be directed, as I have done here, to ensure that the summaries are as neutral as possible. Indeed, Crown counsel undertook an effort to ensure that these summaries were neutral even before I expressed this concern in discussion with counsel.

[34] In particular, I directed that the document may suggest that a person or vehicle seen in one still shot is the same person or vehicle seen in another, but it may not include the opinion of the maker of the document as to who any such person is, or what vehicle it is, or state the author’s opinion of the destination of a person or vehicle. It may also not use value-laden words such as “suspect” or “victim”. Terms such as “person 1”, “vehicle 1”, “black vehicle”, “person of interest” and “deceased” are preferable.

[35] In this case, I have scrutinized a draft of the proposed Video Chronology. It consists of 193 still shots extracted from the video collected by the police. The jury will be able to play the video from which the shots are extracted in the jury room, which will make it easy for them to view the shots in context. In my view, the short descriptions affixed to the still shots are each composed of a few neutral words and are fair and, in most cases, obvious descriptions of what is depicted in the still shots themselves, or in the surrounding video. The descriptions do not offer advice as to the inferences that the Crown seeks to have the jury draw from what is depicted and described.

[36] In my view, this document is little different in principle from what Fairburn J. admitted in Kanagasivam: a PowerPoint presentation used to plot cell tower and phone information, including phone numbers and subscriber information, derived from a variety of sources, linked to locations of interest on maps at the times and places where offences were alleged to have been committed.

[38] And finally, the jury will be instructed in a manner that ensures that it does not misuse the document. While it is premature to craft my instruction now, it will include a direction that the video, and not the words of the creator of the document, are the evidence; that the jurors are in no way bound by what the creator of the document purports to see in the still shots, or what he or she appears to think is important; that they are not bound by the creator’s representation, through the selection of still shots, of what is important in the video; and that they are free to examine and take into consideration any part of the video that they think is important and ignore anything that the creator thinks is important but that they do not.

[39] In the end, I conclude that the video chronology, accompanied by appropriate instruction, will be of assistance to the jury in assessing the evidence in this case in a manner that is both efficient and fair to all parties. The probative value of the video chronology presented in this way outstrips any residual prejudicial effect it may have.

Disposition

[40] The video chronology may be adduced in evidence subject to the limitations I have described.

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