The Defence Toolkit – June 11, 2022

This week’s top three summaries: R v DM, 2022 ONCA 429: #expert ev disallowed, R v Guillemette, 2022 ONCA 436: right to #silence, and R v Boyer, 2022 SKCA 62: s.35 right to #harvest

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

R v D.M., 2022 ONCA 429

[May 31, 2022] Expert Evidence: Submissions beyond Expertise by Crown [Reasons by David Paciocco J.A. with K. Feldman and L.B. Roberts JJ.A. concurring]

AUTHOR’S NOTE: This case appears to be a classic bate and switch by the prosecution to obtain consent for expert psychological evidence. The prosecutor promised that evidence was not going to be led for the purpose of enhancing the credibility of a sexual assault complainant with an intellectual ability.  Qualification occurred and the expert did not opine on the issue. However, in closing submissions the expert evidence was used to neutralize challenges to credibility and bolster evidence. Conviction was overturned as the expert evidence was used outside the scope of the expert's established qualifications. This case is useful for the defence to ensure that expert evidence is not used in submissions in ways beyond the qualifications of the witness. The trial judge has obligations to give limiting instructions following such a closing address by the Crown. Other errors included: a limited W(D) instruction, asking accused to comment on veracity of witnesses accounts, and failing to limit after the fact conduct evidence use.

Overview

[1] D.M. was convicted after a trial by judge and jury of committing sexual offences against the complainant, the son of a family friend. The offences allegedly commenced when D.M. was 19 years of age and ended when he was 20. The complainant was 17 or 18 years old during the relevant time period, but because he has a global intellectual disability, the complainant has the mental capacity of a small child.

[3] After the jury found D.M. guilty of all three charges, the trial judge stayed the sexual assault charge and sentenced D.M. to a global sentence of five years of imprisonment on the two sexual exploitation offences.

[4] ...because of the errors that did occur, I am persuaded that the jury was not equipped to properly evaluate the complainant’s credibility and that a miscarriage of justice occurred. I would allow the appeal, set aside the convictions, and order a new trial. ...

The Prelude to The Charges

[5] D.M.’s aunt and uncle, whom D.M. regularly visited, were neighbours and friends with the complainant’s parents. D.M. met the complainant through his aunt and uncle and spent time with the complainant when visiting. The complainant’s parents trusted D.M. with the complainant and allowed D.M. to take him on outings, including fishing and hunting.

[6] On March 26, 2016, the complainant, the complainant’s father, their neighbour S.R., and S.R.’s nephew C.M. were on an ice fishing trip at a camp in northern Ontario (the “northern camp”). On that day, the complainant told his father that D.M. had sexually abused him. The father phoned D.M. and confronted him. D.M. denied the allegations.

[7] These events led to the police being contacted. On March 29, 2016, the complainant gave a videotaped statement to the police describing the three alleged sexual incidents. While the complainant had difficulty in describing the incidents, the gist of his communication was that:

• The first incident occurred in the previous summer in the bedroom of D.M.’s home during an outing with D.M. to get a snowplough for D.M.’s four-wheeler. The complainant would have been 17 years old at the time. He described performing fellatio on D.M. at D.M.’s instruction while D.M. wore a condom, and then being subjected to anal intercourse (the “D.M. house incident”).
• The complainant thought that the second incident occurred in the fall during a duck hunting outing with D.M. in a field owned by S.R. The complainant alleges that he complied with D.M.’s instructions by giving D.M. oral sex while D.M. was driving. The complainant described his head as being under, but not touching the steering wheel. He told the police that D.M. stopped the truck and subjected him to anal intercourse (the “truck and field incident”).
• The third incident occurred at a nearby hunt camp belonging to the complainant’s family (not the “northern camp”), when the complainant and D.M. went to the hunt camp to “get cigars” for a guest of D.M.’s aunt and uncle. The complainant alleges that before they retrieved and returned with the cigars, D.M. subjected him to anal intercourse without a condom (the “hunt camp incident”). It was left unclear whether this incident happened before or after the complainant turned 18.

[8] The complainant told the interviewing officer that he first told C.M. about sexual activity with D.M., and that C.M. told him to tell his father, which he did. He also said he used his father’s phone to tell his mother.

[9] ... Count 1, involving sexual exploitation of a person with a mental disability, was based on D.M.’s alleged acts of counselling or inviting the complainant to perform oral sex in connection with the D.M. house incident and the truck and field incident. The hunt camp incident was unrelated to this charge. Count 2, involving D.M.’s sexual exploitation of a minor by touching the complainant with his penis, embraced the anal intercourse that allegedly occurred during each of the three incidents. Count 3, the sexual assault charge, captured all of the sexual touching that occurred during each of the three alleged incidents.

The Trial

The Complainant’s Evidence

[12] In his testimony he largely confirmed the allegations he made in his police statement and provided additional information relevant to this appeal:

• With respect to the truck and field incident, the complainant used a photograph, Exhibit 7(B), to identify the location where D.M. parked the truck, near a tree stump.
• He was asked by D.M.’s trial counsel about telling others what had happened, and he confirmed that he told his father, his mother, S.R., C.M., D.M.’s aunt and uncle, D.M.’s mother, and 3 other people.

Evidence of the Complainant’s Father

[14] Under the close supervision of the trial judge, the trial Crown did not secure the details of the complainant’s allegations from the complainant’s father. ... When prompted by D.M.’s trial counsel, the father testified that the complainant told him he had been “sexually molested” two or three times in the fall of 2015, over a period of roughly six months.

[16] ...The complainant’s father testified that when he went to the hunt camp a few days after he had confronted D.M., D.M.’s mattress was gone, but not the furniture. ...

[17] In the course of cross-examining the complainant’s father, D.M.’s trial counsel pursued a defence theory as to why the complainant might have made up the allegations....

The Expert Evidence of Dr. Valerie Temple

[21] An expert witness, Dr. Valerie Temple, testified for the Crown “as an expert in the area of clinical psychology, particularly with respect to the testing and assessment of persons with developmental disabilities.” On the first day of trial, the trial Crown indicated that Dr. Temple was being called to confirm and explain the complainant’s intellectual disability, a relevant consideration relating to his capacity to consent. ...The trial Crown said that it anticipated that Dr. Temple would testify about the complainant’s ability to talk about concrete things that the complainant understands, such as what happened to him, but that he is not able to process abstract things. The trial Crown suggested that the jury could use this testimony to conclude that the complainant is not so disabled as to not understand what happened to him. The trial Crown added:

I’m staying away from the credibility, I’m not asking questions about, you know, is he able to lie? Is he able to tell the truth? I, I think that would be an area that my friend would object to and I’m not asking her about that.

[22] D.M.’s trial counsel indicated that he would not oppose the qualification of Dr. Temple as an expert on the understanding that she would stay within the bounds identified by the trial Crown. In her testimony, Dr. Temple stayed within those bounds. She described the tests she administered and her conclusion that the complainant had an intellectual disability. She assessed him to be below the lowest percentile in his results in all intellectual areas tested, explained that his intellectual ability falls significantly below what would be expected for his age group, and testified that in some sectors his ability was similar to a young child. ...

[23] Dr. Temple gave little testimony about the complainant’s understanding of abstract and concrete things. She used the example of fruit to illustrate the difference, explaining that he could understand what an apple is, “[w]hereas the concept of fruit or the idea that pineapple could be similar to an apple would be quite difficult for him to understand because it’s an abstract concept”. ... No questions were asked about whether the complainant’s challenges in abstract thinking would make him less suggestible or less capable of lying.

D.M.’s Defence Evidence

[24] D.M. presented defence evidence. He himself testified and denied each of the allegations.

[25] With respect to the alleged D.M. house incident, he said that he went with the complainant to retrieve a snowplough from his house in the fall of 2013, so that his uncle could assist him with mounting it on D.M.’s four-wheeler. He was able to identify the year when this occurred because he did not have his own pickup truck until the spring of 2014 and had to borrow his uncle’s truck to transport the snowplough. He said that the complainant did not come into his house on that occasion, and that the complainant has never been in his bedroom.

[27] He denied the hunt camp incident as well, testifying that he never went to the hunt camp with the complainant to get cigars.

[28] D.M. also gave some evidence about the March 26, 2016 phone calls with the complainant’s father. He testified that when he was confronted with the allegation that he had sexually assaulted the complainant, he denied it and said, “I don’t know where this is coming from”. After that call ended unexpectedly, he re-established contact with the complainant’s father and during that second call he could hear C.M. and the complainant’s father threatening to kill him. ...

[31]  ... The trial Crown suggested that when he removed the mattresses from the hunt camp, D.M. could have taken the furniture as well and would have done so if he was attempting to remove his property from the hunt camp. D.M. said there was no room left in his truck, and he could not go back because he “got confronted” before he could do so. Exactly what D.M. meant by being confronted was not explored.

[32] The trial Crown then cross-examined D.M. relating to why the complainant might make up a false story. That line of questioning is reproduced below at paragraph 67 of these reasons (the “false story cross-examination”).

J.R.’s Defence Evidence

[34] J.R. then testified for the defence. He gave testimony consistent with D.M.’s account of the removal of the property and said that the property they removed from the hunt camp was taken to D.M.’s aunt and uncle’s property.

The Details of the Denial

[36] The jury was then provided with an “agreed statement of facts” that set out the details of the March 26, 2016 phone confrontation between the complainant’s father and D.M. In the agreed statement of facts, the jury was provided with excerpts from the complainant’s father’s statement to the police in which the complainant’s father confirmed that when he confronted D.M., D.M. denied everything. Extracts from the complainant’s father’s preliminary inquiry evidence were included, in which he testified that “[D.M.] said he couldn’t believe the allegations that I told him”, and that D.M. said to the complainant’s father,“I wouldn’t have done that.” Also included was the preliminary inquiry testimony of S.R., where he described overhearing D.M. saying in response to the allegation, “You wouldn’t think I would do something like that.”

The Issues

[42] D.M. raises several grounds of appeal relating to his convictions. I will address those grounds of appeal as follows:

1. Did the trial judge err by not intervening and correcting the Crown’s use of the expert evidence on the issue of credibility?

Analysis

A. DID THE TRIAL JUDGE ERR BY NOT INTERVENING AND CORRECTING THE CROWN’S USE OF THE EXPERT EVIDENCE ON THE ISSUE OF CREDIBILITY?

[44] The trial Crown explained that she was seeking to have Dr. Temple qualified as an expert “in the area of clinical psychology, particularly with respect to the testing and assessment of persons with developmental disabilities”. The trial Crown particularized that description of the scope of the expert evidence it was seeking by saying: “I’m staying away from the credibility, I’m not asking questions about, you know, is he able to lie? Is he able to tell the truth? I, I think that would be an area that my friend would object to and I’m not asking her about that.” After hearing these representations, defence counsel did not challenge Dr. Temple’s expertise or the admission of her expert evidence.

[45]  ... Yet during closing submissions the trial Crown used Dr. Temple’s evidence both to neutralize challenges to the complainant’s credibility and to bolster his evidence based on each of these theories. Simply put, the trial Crown signalled that it was staying away from using Dr. Temple on the issue of credibility but did not do so. In my view, this was seriously problematic.

[46] First, by not disclosing that Dr. Temple’s evidence would be offered to the jury on the issue of credibility, the trial Crown prevented a proper inquiry from being made into whether Dr. Temple was qualified to offer expert evidence supporting the credibility inferences the Crown asked the jury to draw from her testimony. It is not at all clear that, had Dr. Temple been asked to express an opinion on credibility issues, she would have claimed the expertise to do so, or that she would have judged the cognitive tests she performed to be a suitable basis for drawing the credibility inferences the trial Crown sought to draw. Even if Dr. Temple would have claimed the expertise and readiness to offer evidence about the complainant’s credibility, it is not at all clear that after a voir dire she would have been found qualified to do so.

[47] Second, even if Dr. Temple had been properly qualified to offer testimony endorsing the credibility inferences the trial Crown sought to draw, it is not at all clear that she would have been permitted to do so. There are significant limits on the contribution that expert witnesses can make to credibility assessments, including the rule against oath helping, which prohibits the reception of expert opinion about the truthfulness of a witness: R. v. J.H., 2020 ONCA 165, at para. 94; R. v. Llorenz (2000), 2000 CanLII 5745 (ON CA), 132 O.A.C. 201 (Ont. C.A.), at para. 27. ... By not being forthcoming about the use it intended to make of Dr. Temple’s evidence, the trial Crown may well have lulled D.M.’s trial counsel into conceding the admission of evidence that could possibly have been successfully contested, had its intended use been made known.

[48] Third, even leaving aside questions of qualifications and admissibility, by not disclosing in advance that Dr. Temple’s evidence would be offered to the jury on the issue of credibility, the trial Crown deprived D.M.’s trial counsel of notice that it should cross-examine Dr. Temple on the validity or weight of the inferences the trial Crown sought to have the jury draw from Dr. Temple’s evidence. ... For example, the trial Crown did not even seek Dr. Temple’s opinion on whether the things that the trial Crown suggested to the jury to be abstract or concrete fit within the concepts Dr. Temple was describing.

[49] There is a related problem arising from the trial judge’s response. In my view, once the trial Crown began to rely in its submissions on Dr. Temple’s expert testimony as if Dr. Temple had been qualified to offer evidence about the complainant’s credibility, the trial judge was required to intervene, but he failed to do so.

[50] In J.H., Watt J.A. described the general duty of trial judges to intervene to ensure compliance with the law of evidence where the contravention of those rules may prejudice the accused: at para. 101. It is important to remember in this regard that the rules of evidence control not only the reception of evidence, but also the use to which that evidence can be put. Without doubt, the obligation to intervene to ensure compliance with the law of evidence therefore extends to situations where a party seeks to put expert evidence to an unauthorized and therefore impermissible use after it has been admitted. In R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, Doherty J.A. stressed that “[a] cautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted, are essential”: at para. 62. The reason why a cautious delineation of the scope of the proposed evidence is essential “if the evidence is admitted” is so that trial judges can discharge their obligations to confine the expert testimony to qualified topics during the trial. ... For the Crown to co-opt the gravitas of an expert to support submissions on matters outside the scope of the expert’s established qualifications is therefore unfair and dangerous. In my view, the trial judge erred by failing to intervene.

[51] Finally, once the trial Crown did offer Dr. Temple’s expert evidence for this unauthorized purpose, the trial judge was obliged to give the jury a limiting instruction. Instead, the trial judge lent legitimacy to the trial Crown’s arguments by reminding the jury of Dr. Temple’s evidence that the complainant “is poor with abstract concepts” without qualifying the use to which this evidence could be put. When directing jurors on “how much or how little [they] will believe and rely upon the evidence of [the complainant]”, the trial judge also instructed the jury to “[t]ake into account the evidence of Dr. Temple regarding [the complainant’s] intellectual functioning.” Given that Dr. Temple had not been qualified to offer expert evidence relevant to credibility, the trial judge should have instead told the jury not to accept the trial Crown’s invitation to use Dr. Temple’s evidence to assess the honesty of the complainant’s evidence.

[52] ... As Miller J.A. recently affirmed in R. v. B.G., 2022 ONCA 92, 410 C.C.C. (3d) 128, at para. 34:

[A] failure to object is not determinative and the responsibility for the jury charge ultimately falls on the trial judge: R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 47.

[53] In this case, there is a particular risk that the jury would engage in an impermissible pattern of reasoning at the invitation of the Crown. ...

[57] ... In my view, the trial Crown’s inappropriate use of Dr. Temple’s evidence on the issue of credibility, coupled with the trial judge’s failure to intercede as well as the direction he gave, caused a substantial wrong or miscarriage of justice in a case that ultimately turned on the complainant’s credibility. This error alone requires that the convictions on Counts 1 and 2 and the conditional stay on Count 3 be set aside.

B. DID THE TRIAL JUDGE ERR BY NOT INTERVENING AND CORRECTING THE CROWN’S USE OF THE EXPERT EVIDENCE ON THE ISSUE OF CREDIBILITY?

[58] In my view, the trial judge misdirected the jury on the application of the rule in W.(D.). This rule is not confined to the exculpatory testimony of the accused. It applies to any exculpatory evidence on vital issues that arises in the case and that turns on the credibility or reliability of a witness, whether that witness is the accused, or another defence witness, or even a Crown witness: R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 105, 114; R. v. Charlton, 2019 ONCA 400, 146 O.R. (3d) 353, at para. 45.

[59] In this case, two of the witnesses provided exculpatory testimony, being testimony that, if credited by the jury, could create a reasonable doubt about D.M.’s guilt on the charges he faced.

[60] First, S.R., a Crown witness, testified that the road the complainant identified as the location where D.M. parked his truck during the truck and field incident was not accessible by normal vehicles: “Four-wheelers really only because as the road’s being dug away, normal vehicles cannot go down in the hole.” Based on that evidence, D.M. could not have taken the complainant in his truck where the complainant claimed he had been taken and sexually assaulted.

[61] Second, D.M.’s aunt testified for the defence that she never sent D.M. to get cigars at the hunt camp, but that when she sent the complainant to get cigars at the hunt camp, he went alone or with someone other than D.M. If credited, this evidence would undercut the complainant’s narrative of the hunt camp incident.

[62] ... However, when the trial judge directed the jury on the application of the rule in W.(D.), he spoke of it applying solely to D.M.’s testimony that he never engaged in sexual activity with the complainant: ...

[66] I would allow this ground of appeal.

C. DID THE TRIAL JUDGE ERR BY FAILING TO ADEQUATELY DIRECT THE JURY RELATING TO THE FALSE STORY CROSS- EXAMINATION?

[67] The Crown cross-examined D.M. as follows: ...

Q. So I’m going to put it to you again, there was nothing other than obviously the allegations that came before the Court, but there was nothing else that had happened between you and [the complainant] to make [the complainant] want to make up a false story against you, correct?

A. No.

[68] The trial Crown should not have cross-examined D.M. in this way. “[I]t is improper to call upon an accused to comment on the credibility of his accusers”: R. v. Rose (2001), 2001 CanLII 24079 (ON CA), 53 O.R. (3d) 417 (C.A.), at p. 432. This includes questions that ask the accused for an explanation for a complainant’s allegations: R. v. G.H., 2020 ONCA 1, at para. 28. I see nothing in the recent decision of the Supreme Court of Canada in R. v. Gerrard, 2022 SCC 13 that in any way suggests that this rule has changed.

[69] There are two reasons for this rule. First, such questions may call for the accused to speculate about the state of mind of an accusing witness. Second, and more importantly, “[q]uestions of this nature suggest that there is some onus on an accused person to provide a motive for the Crown witness’ testimony and, as such, they undermine the presumption of innocence”: Rose, at pp. 432-3. As Simmons J.A. explained in R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, “such questions create a risk that the jury may draw an adverse inference if the accused fails to provide a ‘reasoned or persuasive’ response”: at para. 16.

[72] Finally, the last question the trial Crown asked D.M. on this subject was explicit, and unequivocally about whether D.M. knew of anything that happened that would make the complainant “want to make up a false story against [the appellant]”. Taken as a whole, this line of cross-examination risked subtly shifting the burden to the accused to provide a motive for the complainant to testify falsely. It was improper and prejudicial. ...

[75] I agree that the no onus directions reduce the risk of prejudice from the improper questioning, but in my view, a material risk nonetheless remained. The danger with challenging accused persons during trial with whether they can explain why a complainant would testify falsely is that it operates subtly to shift the burden of proof.

[77] I therefore have serious reservations about whether the jury was left with a functional understanding of how to deal with the improper cross-examination. I need not decide whether, standing alone, the trial judge’s handling of this improper cross-examination would require a new trial because of the related errors that I have just identified. ...

D. DID THE TRIAL JUDGE ERR IN THE JURY INSTRUCTION ON AFTER-THE-FACT CONDUCT RELATING TO THE REMOVAL OF THE MATTRESSES?

The Unreasonable Inference Argument

[82] Subject to the trial judge’s discretion to exclude Crown evidence if its probative value is exceeded by its prejudicial effect, after-the-fact conduct evidence is admissible if it is relevant and does not otherwise offend any exclusionary rules: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 107, per Martin J. (dissenting, but not on this point). Relevance is not a high standard. To be relevant, the after-the-fact conduct evidence must merely, as a matter of logic and human experience, make the inculpatory proposition for which it is advanced more likely than that proposition would be in the absence of that evidence: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 36 (“White (2011)”). Put otherwise, all that is required is that the inference the Crown seeks to be drawn is “reasonable according to the measuring stick of human experience”: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 77.

[83] To be clear, this relevance inquiry does not require a minimum probative value: Calnen, at para. 108. Nor does after-the-fact conduct become irrelevant and inadmissible because it may also support a competing inference consistent with innocence. ... However, if a trial judge concludes that the probative value of after-the-fact conduct evidence is outweighed by the risk of prejudice it presents – including the risk that the jury will leap too quickly to the inference consistent with guilt – the trial judge may exercise discretion to exclude the evidence: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 33; White (2011), at paras. 50-53; R. v. Keror, 2017 ABCA 273, 354 C.C.C. (3d) 1, at para. 61.

[84] ... I do agree with D.M. that if the evidence of the removal of the mattresses had ultimately proved to have been inadmissible when viewed in the context of all of the evidence, the trial judge would have been obliged to give a limiting instruction that removed that evidence from the jury: White (2011), at para. 29. However, given that I would order a new trial, I will refrain from expressing my views on whether the after-the-fact conduct evidence met the standards of admissibility or whether, in all of the circumstances, the trial judge should have directed the jury not to draw the after- the-fact conduct inference sought by the Crown. I will, however, comment on the improper use argument.

The Improper Use Argument

[85] As recognized by Hoy A.C.J.O. in R. v. Chambers, 2016 ONCA 684, 342 C.C.C. (3d) 285, “In some instances, [...] evidence of post-offence conduct can logically support an inference of guilt with respect to one offence rather than another”: at para. 81. Even if the after-the-fact conduct inference sought by the Crown was properly available, this would be such a case. A jury could use the removal of the mattresses as culpable after-the-fact conduct evidence relating only to the hunt camp incident, since at most, logically D.M.’s act of removing the mattress could show consciousness of guilt only relating to that incident.

[86] In Chambers, Hoy A.C.J.O. went on to explain that where evidence logically supports an inference with respect to one offence but not another, “the judge must give a limiting instruction as to the appropriate and inappropriate inferences to be drawn from the evidence”: at para. 82; see also R. v. Wood, 2022 ONCA 87, at para. 120.

[87] D.M. argues that the trial judge should therefore have directed jurors to consider this evidence, if at all, only in determining whether D.M engaged in sexual conduct with the complainant during the hunt camp incident. Instead, he erroneously directed the jurors: “if you find that the removal of the mattresses was related to the commission of the offences charged, and not to something else, you may consider this evidence, together with all the other evidence, in reaching your verdicts” (emphasis added).

[88] I agree with D.M. that this was an error by the trial judge. Not only did he fail to give an appropriate limiting direction to consider the after-the-fact conduct evidence solely in relation to the hunt camp incident, but he misdirected the jury by telling them that they could use this evidence in reaching all of their verdicts.

[93] I would therefore allow this ground of appeal, but only with respect to Count 1. In my view, this is the only count on which a misuse of the after-the-fact conduct inference could prejudice D.M. ...

Conclusion

[109] I would find that, in all of the circumstances, the misuse by the trial Crown of the expert evidence identified in ground of appeal A caused a miscarriage of justice.

[110] Even if the misuse by the trial Crown of the expert evidence had not, on its own, caused a miscarriage of justice, I am satisfied that the combined effect of this error and the errors I have identified relating to grounds of appeal B and C, namely, the improper false story cross-examination and the W.(D.) error, impeded a proper evaluation by jurors of the complainant’s credibility, rendering the trial unfair.

[112] I would therefore allow the appeal, set aside the convictions on Counts 1 and 2 as well as the conditional stay of Count 3 and order a new trial.

R v Guillemette, 2022 ONCA 436

[June 2, 2022] Charter s.7 Right to Silence: Crown Cross-examination and Judicial Commentary [Fairburn A.C.J.O., K. Feldman and A. Harrison Young JJ.A.]

AUTHOR’S NOTE: Improper Crown cross-examination of an accused occurred here where silence was used as a sword. It was repeatedly suggested to the accused that if she was attacked by men in an alley (her explanation for necessity to drive while intoxicated) she would have approached a nearby police officer and complained. The Court reinforced that no adverse inference could be made from the accused exercising her right to silence. The trial judge used this submission to disbelieve the accused. A new trial was the result.

Overview

[1] The appellant spent an evening at a bar called the Bear Claw (“the Claw”). While she expected to meet her friend there, he never showed up. After consuming at least four large beers, she decided to go home.

[2] The appellant acknowledged that she had consumed too much alcohol to drive, yet she drove. She explained that she did so because several men had made her fearful for her safety. She got into an accident, injuring one of the men and damaging her car.

[3] The central issue at trial concerned the appellant’s claim that she should be excused for her crimes because she acted out of necessity. The trial judge thought otherwise. The appellant was convicted of three offences: impaired driving causing bodily harm, dangerous driving causing bodily harm, and failing to stop at an accident. She received a 16 and a half-month custodial sentence.

[4] This is an appeal from conviction and sentence. The conviction appeal rests on three grounds: (1) the appellant’s right to silence was breached; ... To dispose of the appeal, we need only address the first issue: whether the appellant’s right to silence was breached. The appellant claims that the trial judge erred by: (1) allowing the trial Crown to elicit evidence of her silence; and (2) drawing an adverse inference from her silence. We agree. A new trial is required.

The Factual Backdrop

The Appellant’s Time Inside the Claw

[5] Three Crown witnesses were at the Claw on the evening in question. At trial, they and the appellant gave divergent accounts of the evening.

[6] A number of the Crown witnesses described how they had “run-ins” with the appellant inside the bar. ...

[8] The appellant described an entirely different version of events. She admitted to drinking four “tall boy” cans of beer but denied the suggestion that she was out of control. She denied much of the behaviour alleged in the Crown’s case. She also denied having made a racial slur and, in fact, said that the opposite was true, claiming the DJ had made a slur against her.

[10] Eventually, the appellant decided to go home. Knowing that she had consumed too much alcohol to drive, the appellant decided to take a taxi. There was no bank machine at the Claw so the appellant asked the bartender for $20 cash back and received it. She then proceeded to her car because she had left her cellular phone in the car earlier that evening. She testified that she had left it there because she was wearing yoga pants and did not have a pocket to place the phone in. She was going to use her phone to call a taxi. She planned to call a particular driver whose number was in her purse, which she had also left in her car.

The Appellant’s Leaves the Claw

[11] One Crown witness, Mr. Flaherty, who was a bartender at the Claw but not on shift that night, saw the appellant leave the Claw with a man he knew as Chris. ...

[12] Mr. Flaherty explained to the appellant that if she left her car in the parking lot, it would be towed. Despite having consumed alcohol himself, Mr. Flaherty offered to drive the appellant’s car to Chris’ home. Apparently, the appellant declined that offer. He said that the appellant then moved her car to another place within the same parking lot. After she moved her car, Mr. Flaherty said that he told the appellant again that she could not leave the car in that location.

[13] According to Mr. Flaherty, the appellant then decided to drive her car. He had warned her that if she did so, he would call 9-1-1. Consequently, as the appellant started driving, proceeding down the alleyway close to the Claw, Mr. Flaherty called 9-1-1 and reported the matter to the police. At that point, Chris was seated in the front passenger’s seat of the appellant’s car.

[14] Hearing a loud noise, Mr. Flaherty proceeded down the alleyway,....

[15] All testified about what occurred at the dead end of the alleyway. Mr. Fitzsimmons saw Chris, the man seated in the passenger’s seat of the car, emerge from the vehicle. Mr. Nicolak acknowledged that he leaned in the driver’s side window and attempted to remove the keys from the ignition of the appellant’s car. Yet, as he reached into the car, the appellant placed it into reverse, causing his body to collide with a post. Along with other injuries, Mr. Nicolak suffered multiple fractures to his pelvis.

[16] The men all then attempted to distance themselves from the vehicle. The appellant drove out of the alleyway, but not without difficulty and not without further damaging her car.

[19] The appellant testified that she then entered her car to obtain her phone. When she unlocked the car, Chris entered the front passenger’s seat of the vehicle. The appellant told him to get out of her car. He grabbed her purse, which contained her phone, and held it away from her, preventing her from making the call. At the same time, he started touching her inner thigh. He told her to move her car to the back of the Claw, after which he would give her the phone. The appellant explained that she was very upset and yelling and pleading for help, but that Mr. Flaherty just stood there laughing, doing nothing. In the end, she perceived that she had no choice but to move her car and went down the alleyway where she had been directed. She did not know that it came to a dead end.

[20] The appellant testified that, once at the dead end, she was screaming while Chris sat next to her, not letting her go. At that point, another man “lunged” through the driver’s side window, which was open, placing his forearm in a position so that it was rubbing up against her chest. There were also other men outside of her car. She testified about what was going through her mind at the time. She was at the end of the alleyway, with no way to escape, and had four men surrounding her: one seated in the car, one thrust through the driver’s side window and touching her chest, and two others yelling from outside. She was drunk. She found the situation overwhelming and was very fearful.

[22] In the end, she was able to get out of the alleyway, but not without significant damage to the car. She said they chased her car on the way out of the parking lot.

The Police Interaction

[24] ... She was arrested and taken into custody.

[25] The breath test results revealed readings of 180 milligrams of alcohol in 100 milliliters of blood. Undoubtedly, the appellant had a lot of alcohol in her system.

Analysis

Overview

[27] First, the appellant contends that the trial judge erred by allowing the trial Crown to adduce evidence about the appellant’s pre-trial silence surrounding the alleged attack. Second, the appellant argues that, even if the Crown was properly permitted to elicit that evidence, the trial judge clearly misused the appellant’s pre- trial silence as evidence from which he could draw an adverse inference of guilt. Individually or combined, these errors are said to be fatal to the verdicts in this case and a new trial is called for.

[28] We find that the trial judge fell into error in both respects. ...

Necessity was the Primary Live Issue

[31] ... The real genesis of the defence of necessity in Canadian law goes back to R. v. Perka, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232 where Dickson J. (as he then was) focused upon the injustice involved in punishing someone for a choice to break the law when that person really had no true choice at all. Dickson J. explained, at p. 250:

At the heart of this defence [of necessity] is the perceived injustice of punishing violations of the law in circumstances in which the person had no other viable or reasonable choice available; the act was wrong but it is excused because it was realistically unavoidable.

[32] There are three elements to the defence of necessity: (1) the accused was faced with an urgent situation involving “clear and imminent” peril; (2) there was “no reasonable legal alternative” to the accused breaking the law; and (3) there exists a “proportionality between the harm inflicted and the harm avoided” by the accused: see R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, at paras. 28-31. Once the defence shows that there is an air of reality to each element of necessity, the onus shifts to the prosecution to disprove one or more of the essential elements of the defence beyond a reasonable doubt: Perka, at pp. 257-58.

[33] The appellant’s evidence in-chief was directed at these three elements of necessity. She explained the significant fear she was in from the moment that Chris entered her car, grabbed her leg, and would not hand over her phone. This fear was combined with what she said was Mr. Flaherty’s aggressive behaviour, which included him yelling at her to move her car. The fear only escalated when she got to the end of the alleyway, realized it was a dead end, and another man entered her car through the driver’s side window. In short, she was surrounded by four men at the end of an alleyway with no way to easily escape. That is why she says that she did what she did.

The Cross-Examination: Using Silence as a Sword

[36] The right to silence exists at common law and is conferred by s. 7 of the Canadian Charter of Rights and Freedoms: see R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519, at paras. 41-42; R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at p. 164. With few exceptions, such as where an alibi defence is raised, silence cannot be used to incriminate an accused or to impeach an accused’s credibility: Turcotte, at paras. 48-50. Indeed, to do so would render the right to silence into an “illusory right”, converting the decision not to speak to the police into a sword from which an inference of guilt could be taken: Turcotte, at para. 44. In other words, taking guilt from silence has the effect of transforming the right into both a “snare and a delusion”: R. v. Chambers, 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293, at p. 1316.

[38] This is exactly what happened here: the appellant’s assertion of her right to silence was transformed into evidence against her.

[40] During cross-examination, the appellant was challenged on the fact that she had not told Cst. Thompson about the alleged attack. For instance, the trial Crown questioned the fact that the appellant did not:

- “run right over” to the police officer parked at her home and say “oh, my God, like, these men were just attacking me”;

- “get out of [her] car to go let [the officer] know” about the attack;

- say to the officer “oh my God, I was attacked” or “oh my God, I’m so glad to see you. I was attacked.”

[41] The inference to be taken from the trial Crown’s questioning was unmistakable. If the appellant was telling the truth about having been attacked – an attack that was the very foundation for her assertion of necessity – then she would have told the first police officer she saw about the attack. To the trial Crown, the appellant’s failure to tell Cst. Thompson about the attack demonstrated that her trial evidence on this point must be an invention.

[43] Respectfully, the trial Crown’s misunderstanding of the right to silence was also made clear during closing submissions:

There is no way that if this happened the way she said it did, that she wouldn’t have told Constable Thompson immediately. That she wouldn’t have gotten right out of her car, run over and banged on his window.

[44] The point is that the events of the evening could have happened exactly as the appellant recounted and she could have exercised her right to silence and chosen not to tell Cst. Thompson anything about those events. No adverse inference can be taken from exercising the right to silence.

[51] Read in its full context, the cross-examination leads to only one conclusion: it was the trial Crown who raised the issue of the appellant’s silence about the attack. The cross-examination conflicted with her right to silence.

The Reasons for Judgment Crystalize the Error

[60] This leaves the question of whether the reasons for judgment also reflect a misuse of the appellant’s silence. The appellant argues that the trial judge erred by drawing an adverse inference of guilt from the appellant’s silence. The respondent argues that is not so....

[61] Leaving aside the fact that the evidence should never have been elicited in the first place, in our view, the reasons for judgment reflect an erroneous use of that evidence.

[62] In the reasons for judgment, the trial judge explained why he allowed the defence to reopen its case and call Staff Sgt. Mountsteven: “After PC Thompson testified for the second time, counsel for [the appellant] asked to call evidence in- reply to this testimony to rebut, presumably, any suggestion of recent fabrication. I allowed the application” (emphasis added).

[63] Respectfully, the use of the terminology “recent fabrication” to describe the Crown’s position with respect to the appellant’s defence, because it was revealed through the appellant’s testimony for the first time at trial, demonstrates the fundamental undermining of the right to silence. An accused has the right to remain silent. Barring limited exceptions, none of which are operative in this case, any suggestion that the accused is fabricating because she only speaks at trial, serves to undermine that right.

[64] It is in that context that the trial judge’s later comments must be considered:

The scenario described was that she was forced to break the law and obviously damage her car. She was completely innocent in all of this. Of course she would explain this to police at her first opportunity. Even though they waited for an extra ten minutes, waiting to be told where to go for the Intoxilyzer tests, PC Thompson said she did not mention anything along those lines to him. When the defence had the opportunity to address the point, through evidence, it came not from the female searching officer at the scene, the cell sergeant or the breath tech who spent 40 minutes with [the appellant]. Instead, it came from an officer who spoke with her several hours after her release, who had earlier emailed her and was calling to admonish her for name dropping. I do not believe that Ms. Guillemette told PC Thompson that she was attacked. She did not tell anyone that until the next day, after she had a chance to think about it. I find that she lied under oath when she made that assertion. [Emphasis added.]

[66] Having concluded that, “of course”, if she had actually been attacked, the appellant would have told the first police officer she saw, and that she did not tell anyone until the next day, the trial judge rejected her evidence and convicted her. In making these findings, the trial judge’s reasons extended beyond the narrow conclusion that the appellant lied under oath and included the fact that, if her trial version of events were true, she would have told a police officer prior to having had a “chance to think about it.” This was a misuse of the right to silence, resulting in an unfair trial.

[67] As the trial judge himself described, the question of whether the appellant told the officer she was attacked was a “key” issue. Therefore, it cannot be said that the verdicts would have been the same without the errors relating to silence.

Conclusion

[68] The appeal is allowed, the convictions are set aside, and a new trial is ordered.

R v Boyer, 2022 SKCA 62

[May 31, 2022] Charter s.35 - Indigenous Right to Harvest and Improper Limitations on Constitutional Questions [Reasons by Jackson J.A. with Whitmore and Kalmakoff JJ.A. concurring]

AUTHOR’S NOTE: This case has significant ramifications. It is a s.35(1) Charter case that occurred within a summary conviction fishing violation matter. In short, the matter was overturned on the basis that it was improper for the trial judge to limit the Métis appellant's territorial claim for the right to harvest food to a limited area that was smaller than the one pursued in the litigation. The court stated this territorial limiting power for the judge could only be exercised at the end of the case IF a broader claim would lead to a conviction following receipt of the evidence. The case opens the door to a wide area claim by Métis peoples because of the nomadic cultural norms involved large tracts of land upon which hunting and fishing would occur. All criminal practitioners should be on the lookout for ways to help Indigenous Peoples through s.35 litigation of this sort. However, the broader application here is that the Crown cannot seek to narrow the constitutional question advanced by the defence prior to the conclusion of the arguments in a case.

I. Introduction

[1] These appeals present the Court with its first opportunity to consider the extent to which the Métis can claim a right to hunt and fish for food under s. 35(1) of the Constitution Act, 1982. The Court’s decision will have significant implications for the Métis peoples of Saskatchewan.

[2] The immediate background to the appeals may be briefly stated. Billy Myette, Warren Boyer and Oliver Poitras, who are all Métis, were charged with unlawfully hunting or fishing for food, i.e., harvesting, contrary to wildlife and fisheries regulations. They were harvesting near land that had been previously described as constituting the historic “Métis community of Northwest Saskatchewan” or HMCONWS: R v Laviolette, 2005 SKPC 70 at para 57, 267 Sask R 291 [Laviolette].

[3] By way of a defence, the three accused, who were tried jointly, served notices of constitutional question upon the Crown. The notices asserted that they had an existing Aboriginal right to hunt and fish for food and that this right is protected by s. 35(1) of the Constitution Act, 1982. As part of their assertion, they claimed that the HMCONWS encompasses considerably more land than what Laviolette describes and, indeed, includes a right to hunt and fish for food in vast tracts of the province, which could extend to the whole of it.

[4] The basis of their claim is that, when European control was first exerted over the territory that is now Saskatchewan, the Métis were a migratory people, hunting and fishing according to their needs wherever they found themselves, and that this right continues. They sought to prove that the wildlife and fisheries regulations, under which they were charged, are unconstitutional as against them as being contrary to the Aboriginal rights preserved for them by s. 35(1).

[5] Partway through the trial, the Crown brought an application to strike the notices of constitutional question. In its motion, the Crown submitted that Aboriginal rights can be claimed under s. 35 on a site-specific basis only – and not on a large geographical or province-wide basis. In support, the Crown relied on R v Powley, 2003 SCC 43, [2003] 2 SCR 207 [Powley]. Messrs. Myette, Boyer and Poitras argued that the Crown’s interpretation of Powley should not be adopted.

[6] The trial judge accepted the Crown’s submissions regarding Powley. He held that Métis harvesting rights are to be considered on a site-specific basis, using a regional approach. Accordingly, he narrowed the s. 35(1) defence to the areas of the province where the accused had been hunting and fishing on the day they were charged: R v Boyer (25 April 2016) Prince Albert, 7457911 (Sask PC) [Mid-Trial Ruling].

[7] The effect of the Mid-Trial Ruling was to prevent the consideration of evidence and argument directed to the question of whether the migratory and nomadic nature of the Métis peoples would permit a harvesting claim over the whole of the province or a large segment of it, even as a defence to the particular charge of harvesting where the accused had been hunting and fishing.

[8] In his trial decision, the trial judge acquitted Mr. Myette and convicted Mr. Boyer and Mr. Poitras: R v Boyer, 2018 SKPC 70 [Trial Decision]. The trial judge found that the area where Mr. Myette was hunting was indistinguishable from what had previously been declared to constitute the HMCONWS in Laviolette, but that the HMCONWS did not include the land where Mr. Boyer and Mr. Poitras had been harvesting.

[9] Mr. Boyer and Mr. Poitras appealed their convictions to the Court of Queen’s Bench. Their appeals were dismissed: R v Boyer (10 February 2020) Battleford, CRM 6 of 2019 and CRM 5 of 2019 (Sask QB) [QB Decision].

[12] I have concluded that the appeals must be allowed and a new trial ordered. As an overarching consideration, the claim before the Court is for a broad territorial right based on the nomadic nature of the Métis peoples. The claim before the Court is not resolvable by narrowing it to the actual sites where harvesting had occurred. Mr. Boyer’s and Mr. Poitras’s assertion of a s. 35 right must be addressed on its terms. To do otherwise would ignore their right to make full answer and defence.

[13] The fundamental basis of my reasoning is that I do not interpret Powley, and the related jurisprudence, as precluding Mr. Boyer and Mr. Poitras from attempting to prove an Aboriginal harvesting claim that would encompass a large tract of the province or indeed the whole of it as the basis of a defence to the charges against them....

II. Laviolette

A. The importance of Laviolette

[19] In Laviolette, Mr.Laviolette had been ice fishing out of season on Green Lake, Saskatchewan. He was charged with unlawfully angling during a closed time contrary to s. 13(1) of The Fisheries Regulations, RRS c F-16.1 Reg 1. He claimed as his defence an Aboriginal right that was protected by s. 35(1) of the Constitution Act, 1982, to fish for food.

[20] The Crown conceded that a “historic Métis community existed at Green Lake by 1870” (Laviolette at para 38). However, Mr. Laviolette did not live at Green Lake. He resided at Flying Dust First Nation near Meadow Lake. Thus, the issue was whether the historic Métis community “includes a larger area and, in particular, Meadow Lake” (at para 21). The trial judge found that such a community existed and continues to the present and that Mr. Laviolette is a member of it. The trial judge acquitted Mr. Laviolette on the basis that his s. 35(1) right to fish for food was infringed by being prevented from fishing out of season without justification. The Crown did not appeal.

[21] In this section, I will review those aspects of the reasons in Laviolette that have particular significance to the appeals presently before the Court.

B. Trial reasoning in Laviolette

1. A historic rights-bearing community existed in northwest Saskatchewan

[22] In Laviolette, the trial judge found that a historic rights-bearing community, “generally defined as the triangle of the fixed communities of Green Lake, Île à la Crosse and Lac La Biche and includes all of the settlements within and around the triangle including Meadow Lake”, existed in northwest Saskatchewan (at para 30). More particularly, the trial judge in Laviolette described the HMCONWS as follows:

[27] The evidence showed a regional network of relationships in the triangle created in and around the fixed settlements of Lac La Biche, Île à la Crosse and Green Lake. It also showed that there were strong kinship ties between these three fixed settlements and that the Métis intermarried and moved between these settlements over time. In addition to the fixed settlements, there were many other settlements within and around the three fixed settlements and along the transportation routes that connected them together. The transportation corridor, with its southeasterly hub at Green Lake, was important because it was the access route into the Mackenzie District, a storehouse of plenty and rich in furs. (Thornton – Transcript, pp. 982–985 and Exhibit D-17 at p. 5; Tough – Exhibits D-22 and D-26).

[28] The evidence showed that while these fixed settlements were important historic Métis settlements, the Métis were highly mobile. They moved often and travelled far and wide for food, trapping and work. They moved frequently between the fixed settlements and between the settlements within a given region.

[30] I find that the evidence led at this trial contains sufficient demographic information, proof of shared customs, traditions and collective identity to support the existence of a regional historic rights-bearing Métis community, which regional community is generally defined as the triangle of the fixed communities of Green Lake, Île à la Crosse and Lac La Biche and includes all of the settlements within and around the triangle including Meadow Lake. [Emphasis added]

2. A contemporary rights-bearing community continues to exist

[23] The trial judge in Laviolette also found that a contemporary rights-bearing community with far-reaching links to other parts of Saskatchewan and to other provinces continues to exist: ...

3. Date of effective control is set at 1912 in Laviolette

[24] The trial judge in Laviolette described what is meant by effective control for the purposes of determining the existence of Métis rights in these terms:

[39] In Powley, the Supreme Court of Canada held that the test looks to the time when Europeans effectively established political and legal control in a particular area. I agree with the argument advanced on behalf of Mr. Laviolette that effective control takes place when the Crown’s activity has the effect of changing the traditional lifestyle and the economy of the Métis in a given area.

[25] The defence called Dr. Frank Tough and Mr. John Thornton to give evidence regarding the date of effective control; the Crown did not lead any expert evidence on that point but did concede that a Métis community was present in the HMCONWS by 1870. It was the Crown’s position that the “date of effective control was 1870, being the date when Rupert’s Land became part of Canada” (at para 38). The trial judge did not accept this date.

[26] Relying on the defence experts, he determined that no real change in lifestyle took place in the area until 1912, “when the Department of the Interior established townships and set aside two on either side of Green Lake” (at para 41). This was also when the Métis “registered their land claims under the new land system” (at para41). With these two findings as the factual underpinning, the trial judge held that the date of effective control was 1912.

4. Acquittal of Mr. Laviolette

[27] In acquitting Mr. Laviolette, the trial judge stated, “Having concluded that Mr. Laviolette has a Métis Aboriginal Right to fish for food, I declare that Mr. Laviolette, as a Métis member of the Métis community of northwest Saskatchewan, which includes Green Lake and Meadow Lake, has a right to fish for food within that Métis community’s traditional territory” (at para 57).

III. Background to the trial of Messrs. Myette, Boyer and Poitras

A. The Charges

[28] On November 30, 2013, Mr. Myette was charged with hunting for food near Rush Lake Fireguard Road, which is approximately 1 km west of the south end of Green Lake. He asserted that he was hunting within his traditional territory. Mr. Myette was charged under s. 25(1)(b) of The Wildlife Act, 1998, SS 1998, c W-13.12 [The Wildlife Act].

[29] Approximately four months later, Mr. Boyer, who is also Métis, was fishing for food on Chitek Lake, which is located approximately 60 km southeast of Meadow Lake, Saskatchewan. He was charged on March 27, 2014, with unlawfully fishing, contrary to s. 11(1) of The Fisheries Regulations.

[31] The parties agreed, in a statement of facts filed for that purpose, that Messrs. Myette, Boyer and Poitras were harvesting just outside the boundaries of what had previously been declared in Laviolette to be the HMCONWS.

[34] In the final notices of constitutional question, each of Messrs. Myette, Boyer and Poitras raised similar questions: “Is section 11(1) of The Fisheries Regulations, R.R.S., c. F-16.1, Reg. 1, as amended, applicable to the Defendant, by virtue of s. 52 of the Constitution Act, 1982, and his Aboriginal right to hunt within s. 35(1) of the Constitution Act, 1982, as invoked by the Defendant?”.

[35] I will quote from Mr. Boyer’s notice only. He asserted the following as the material facts underlying his claim: ...

2. The Métis historically were a highly mobile people engaging in the fur trade, the buffalo hunts and freighting through the many cart trails and waterways across the Métis homeland.

3. The Métis Nation – Saskatchewan (“MNS”) represents the citizens of the Métis Nation living in, using and occupying Saskatchewan. The Defendant is a member of the contemporary rights-bearing Métis community that lives in, uses, and occupies what is now known as Saskatchewan, and includes, north, central, and southern Saskatchewan. This rights-bearing Métis community has always harvested and continues to harvest throughout its traditional territory, which includes the area in, around and between Green Lake and Morin Lake (Victoire), as well as northeast Alberta and southern Manitoba. This contemporary Métis rights-bearing community continues to be a highly mobile community.

[37] In short, as members of the Métis nation of Saskatchewan, the three accused claimed the right to harvest for food throughout the whole of Saskatchewan, as a defence to the charges against them. Specifically, they claimed an ancestral connection with “the historic rights-bearing Métis community in Saskatchewan, which includes north, central, and southern Saskatchewan, as well as northeast Alberta and southern Manitoba”. If successful, this would extend the HMCONWS to the whole of the province or potentially significant tracts of it.

C. The trial and the Crown’s motion to strike the notices of constitutional question

[42] After the trial judge had heard from the 41st witness, the Crown filed a notice of motion asking for an order striking, in whole or in part, the notices of constitutional question on the following principal bases:

2. The Notices characterize the rights at issue and the alleged Métis community contrary to the test articulated by the Supreme Court of Canada in R v Powley 2003 SCC 43 (CanLII), [2003] 2 SCR 207. In particular,a. The Respondents characterize the community at issue as spanning western Canada from Ontario to British Columbia. This one-Nation theory is contrary to the Supreme Court’s decision in R v Powley, supra, and subsequent case law; and,b. The Respondents characterize the rights at issue as being exercisable throughout Saskatchewan, northeastern Alberta and southern Manitoba, which is contrary to the site-specific nature of Aboriginal rights stated by the Supreme Court in R v Adams 1996 CanLII 169 (SCC), [1996] 3 SCR 101, R v Cote 1996 CanLII 170 (SCC), [1996] 3 SCR 139, R v Sappier and Gray 2006 SCC 54 (CanLII), [2006] 2 SCR 686 and reaffirmed in Powley, supra, and subsequent case law;

D. The Mid-Trial Ruling in response to the motion to strike

[44] In the Mid-Trial Ruling, the trial judge said the following:

 ... That is, it’s my determination that the Supreme Court, and the cases subsequent to it, make it a point that the notices, such as had been filed here, claiming rights as part of the Métis nation comprising all of Saskatchewan and parts of Manitoba and Alberta is inconsistent with this approach, and insofar as it would make findings that are beyond the Province of Saskatchewan or beyond the jurisdiction that I possess as a provincial court judge. ...

In respect of Mr. Boyer, I find that the issue is whether or not at Chitek Lake and the area around Chitek Lake is part of the historic Métis community of northwest Saskatchewan, whether he is a member of that community, and whether that area, then, being within northwest Saskatchewan is an area that he’s permitted as a member of that community to fish. ...

[45] Thus, the accused’s claim of a constitutional right was reduced to whether the areas where they were hunting and fishing were part of the HMCONWS as previously found in Laviolette.....

Analysis

B. Powley does not put forward a narrow test, frozen in time

[82] As I have observed, Powley, and its proper interpretation is central to the resolution of this appeal.

1. Introduction to Powley

[83] The issue is whether Powley, and subsequent authority, required the trial judge to modify the appellants’ notices of constitutional question, which claimed an Aboriginal right to harvest in the province that “includes north, central and southern Saskatchewan”.

2. Powley interpreted and applied

[86] Powley presented the Supreme Court with an opportunity to resolve how Van der Peet, which dealt with the rights of First Nations persons, applied to Métis peoples. In Van der Peet, the majority of the Supreme Court stated the issue as follows: “How are the aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982 to be defined?” (at para 1). In answering this question, the majority put forward a simple test: “in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right” (at para 46). The majority labelled this the integral to a distinctive culture test.

[87] By way of guidance to courts, the majority went on to provide a list of factors, presented as headings, to be considered in applying the integral to a distinctive culture test. Significant to this appeal, the majority in Van der Peet mentioned, among others, these factors (at paras 49–74):

1. “Courts must take into account the perspective of aboriginal peoples themselves”;
2. “Courts must identify precisely the nature of the claim being made in determining whether an aboriginal claimant has demonstrated the existence of an aboriginal right”;
3. “Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims”;
4. “Claims to aboriginal rights must be adjudicated on a specific rather than general basis”; and
5. “Courts must take into account both the relationship of aboriginal peoples to the land and the distinctive societies and cultures of aboriginal peoples”.

[88] In expanding and elaborating on this test, the majority in Van der Peet recognized and left open the question of how to define Métis rights within the meaning of s. 35....

[89] In Powley, after referring to the above quote in Van der Peet, the Supreme Court took up the question of the place of Métis peoples in s. 35 of the Constitution Act, 1982, with the following:

[17] … the inclusion of the Métis in s. 35 is not traceable to their pre-contact occupation of Canadian territory. The purpose of s. 35 as it relates to the Métis is therefore different from that which relates to the Indians or the Inuit. The constitutionally significant feature of the Métis is their special status as peoples that emerged between first contact and the effective imposition of European control. The inclusion of the Métis in s. 35 represents Canada’s commitment to recognize and value the distinctive Métis cultures, which grew up in areas not yet open to colonization, and which the framers of the Constitution Act, 1982 recognized can only survive if the Métis are protected along with other aboriginal communities.

[18] With this in mind, we proceed to the issue of the correct test to determine the entitlements of the Métis under s. 35 of the Constitution Act, 1982. The appropriate test must then be applied to the findings of fact of the trial judge. We accept Van der Peet as the template for this discussion. However, we modify the pre-contact focus of the Van der Peet test when the claimants are Métis to account for the important differences between Indian and Métis claims. Section 35 requires that we recognize and protect those customs and traditions that were historically important features of Métis communities prior to the time of effective European control, and that persist in the present day. This modification is required to account for the unique post-contact emergence of Métis communities, and the post-contact foundation of their aboriginal rights.

(Emphasis added)

[90] The majority then proceeded to list those aspects of the Van der Peet test that it wished to emphasize in the context it was deciding. Again, for our purposes, the factors that are most important are as follows: (a) characterization of the right being claimed, and (b) identification of the historic rights-bearing community.

[91] In its analysis of the characterization of the right being claimed, the Supreme Court in Powley wrote, “Aboriginal hunting rights, including Métis rights, are contextual and site-specific” (at para 19).

[92] For the Crown, this statement should be dispositive of this appeal. ...

[93] Clearly, there are references in Supreme Court authority predating and succeeding Powley that discuss the site-specific nature of Aboriginal harvesting rights. The strongest endorsement of that proposition comes from Sappier:

[50] This Court has imposed a site‑specific requirement on the aboriginal hunting and fishing rights it recognized in Adams, Côté, Mitchell [2001 SCC 33], andPowley. Lamer C.J. explained in Adams, at para. 30, that

A site‑specific hunting or fishing right does not, simply because it is independent of aboriginal title to the land on which it took place, become an abstract fishing or hunting right exercisable anywhere; it continues to be a right to hunt or fish on the tract of land in question.

[94] Notwithstanding the above-quoted statement, Sappier does not foreclose the assertion of a broad territorial claim for two reasons. First, in Adams, Côté, Mitchell v M.N.R., 2001 SCC 33, [2001] 1 SCR 911 [Mitchell], and Powley, upon which Sappier relies, the party asserting the s. 35 right had already narrowed the claim to a specific site:

1. in Adams, the claim was the “for the right to fish for food in Lake St. Francis” in Quebec (at para 36);
2. in Côté, the Supreme Court characterized the right as “whether the appellants enjoyed an unextinguished aboriginal right or treaty right to fish within the [zone d’exploitation contrôlée] deserving of constitutional protection under s. 35(1) of the Constitution Act, 1982 ...” in Quebec (at para 31; also see paras 56 and 57);
3. in Mitchell, the claim was in respect to a “specific geographical region in which it is alleged to have been exercised (i.e., north of the St. Lawrence River) ...” (at para 40; also see para 41); and
4. in Powley, the issue was “whether members of the Métis community in and around Sault Ste. Marie enjoy a constitutionally protected right to hunt for food under s. 35 of the Constitution Act, 1982” (at para 1).

In each of these decisions, the site was specific because the claimant had made it so. [Emphasis by PJM]

[95] There is a second reason why Sappier is not an impediment to the appellants’ broad assertion of a constitutional right to harvest; it falls into that category of case where the Court was able to narrow the claim in order to permit a proper assessment of it, which has usually led to an acquittal. Justice Binnie described this phenomenon in Lax Kw’alaams Indian Band v Canada (Attorney General), 2011 SCC 56, [2011] 3 SCR 535 [Lax Kw’alaams Indian Band].

[96] In Lax Kw’alaams Indian Band, Binnie J. distinguished Sappier as belonging to that group of decisions where “it was necessary for the Court to re-characterize and narrow the claimed right to satisfy the forensic needs of the defence without risking self-destruction of the defence by reason of overclaiming” (at para 44).

[97] Most importantly, the Supreme Court in Sappier, Adams, Côté, Mitchell and Powley was not confronted with a case such as this one. Here, the appellants claim to be a migratory or nomadic peoples whose traditional territory allegedly covered either large tracts or the whole of the province. They assert, as an Aboriginal right under s. 35, the right to harvest because of their way of life, which, according to them, knew nothing of the municipal or provincial boundaries that exist today.

[100] In my respectful view, a reading of Powley that requires the assertion of a Métis harvesting right over what must always be a smaller site size is not justified. It has given rise to what the appellants in oral argument called the Pac-Man approach to the resolution of Métis harvesting rights.

[101] According to the appellants, a Métis person would put forward a claim over a large part of the province. On the application of the Crown, or on its own initiative, a court would narrow the claim to a specific site, leaving the claimants to test the issue of a more comprehensive rights claim in yet another piece of litigation, with the result that the broader issue the Métis are attempting to resolve is never addressed.

[102] While many cases could be cited for this piecemeal approach, it is sufficient to mention R v Morin, 1996 CanLII 12081 (SK PC), [1996] 3 CNLR 157 (Sask PC) [Morin-PC], aff’d (1997), 1997 CanLII 11328 (SK QB), 159 Sask R 161 (QB) [Morin-QB], Belhumeur and Goodon. A review of these decisions shows that since at least Morin-PC, on the basis of charges that arose in 1993, the Métis peoples have been attempting to assert a comprehensive resolution of their right to harvest for food.

[103] In Morin-QB, the final iteration of the constitutional question was this: “Do the Métis of northwestern Saskatchewan have an existing Aboriginal right to fish?” (at para26). Notwithstanding the breadth of the question, over the course of the trial, the issue came to be confined to “the area loosely known as Treaty 10 or perhaps a little larger” (Morin-PC at para 19). ...

[106] In my respectful view, in the within case, the trial judge erred by narrowing the appellants’ constitutional question to whether they had the right to harvest where they had been hunting and fishing, without considering if that right could be grounded in a claim that they are part of a group that was migratory and who harvested throughout the Northwest. If there is some prospect of such a claim being made out, as noted above, it can only be narrowed in the circumstances mentioned in Lax Kw’alaams Indian Band: “to re-characterize and narrow the claimed right to satisfy the forensic needs of the defence without risking self-destruction of the defence by reason of overclaiming” (at para 44).

[107] This approach would have been appropriate if, after the defence had closed its case, the trial judge had concluded that a consideration of a much larger site was not necessary to give effect to the constitutional right that had been claimed. Here, however, the Crown asked the trial judge to narrow the constitutional question before the defence rested.

[108] Thus I conclude that the trial judge erred in law with respect to his interpretation of Powley. His narrowing of the constitutional question on the basis that Powley compelled him to do so, and then going on to convict the appellants, raises the issue of whether there has been a denial of the right to make full answer and defence. I will now turn to that specific question.

C. The right to make full answer and defence

1. A contemporary rights-bearing community continues to exist

[112] I agree with the appellants and intervenors on this point. Borders were not an impediment to asserting an Aboriginal right in either Uashaunnuat or Desautel. In Uashaunnuat, the majority of the Supreme Court stated plainly, “We do not accept that the later establishment of provincial boundaries should be permitted to deprive or impede the right of Aboriginal peoples to effective remedies for alleged violations of these pre-existing rights” (at para 49). In Desautel, the Supreme Court determined that the accused had protected rights under s. 35, even though he was not a Canadian citizen. All four levels of court hearing his case decided that Mr. Desautel had s. 35 rights because of his Canadian-based, Indigenous ancestry.

[113] Further, it appears that the trial judge misconstrued what the appellants were seeking. The trial judge was not being asked to make findings that would be binding on the provinces of Alberta and Manitoba. Rather, he was being asked to consider a pattern of Métis living that was said to have covered much of the prairies as a means of proving a claim within the boundaries of Saskatchewan. In that regard, this case is similar to what the Métis parties asserted in Goodon.

[116] Thus, I find that the trial judge erred when he limited the appellants’ defence on the basis of its extra-territoriality. Uashaunnuat and Desautel confirm that provincial and even international borders do not preclude Indigenous persons from asserting their s. 35 rights.

2. Narrowing the defence for trial management purposes

[117] The Crown correctly asserts that the curtailment of defence evidence may be justified in order to manage an unwieldy trial. However, in my view, what the trial judge did here went beyond good trial management.

[118] ... R v Samaniego, 2022 SCC 9, 466 DLR (4th) 581..... the Supreme Court agreed on the principles at stake, which are helpfully summarized in the dissenting reasons of Côté and Rowe JJ.:

... A decision that restricts the trier of fact from considering relevant and material evidence in the absence of a clear ground of policy or law justifying exclusion jeopardizes the accused’s constitutional right to make full answer and defence. It also undercuts society’s interest in getting at the truth: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at p. 609; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 47–48.

[119] The appellants defended the charges against them on the basis that The Wildlife Act and The Fisheries Regulations are unconstitutional as being contrary to the Constitution Act, 1982: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed” (s. 35(1)). By virtue of their defence, they claimed that their rights as Aboriginal peoples extend to harvesting for food throughout the north, central and southern parts of the province. To prove their constitutional claim, they sought to adduce evidence to show that they followed a highly mobile way of life that saw individuals move from one settlement to another and to harvest in the places in between.

[120] As I have indicated, on the Crown’s application to strike the notices of constitutional question on the basis that they were an abuse of process or had no possibility of success, the trial
judge decided that he could nonetheless hear the matter by narrowing the issues. ...

[122] ...the problem is that the re-characterization of the issues and the consequent narrowing of the defence on this occasion did not result in an acquittal. The appellants had been attempting to resolve a long-standing dispute about whether they have the same rights to harvest as the Indian peoples of Saskatchewan. The tool that they chose to pursue their claim to a broad Métis harvesting right was the summary conviction process. Surely, the right to make full answer and defence in the Indigenous context extends to hearing the evidence that supports their claim to a recognition of existing Aboriginal rights under s. 35.

[123] ... While I agree that the summary conviction process is not the ideal vehicle to assert such a claim, it is the one that is presently before the court.

[124] Here, however, it is not so much that the appellants were prevented from presenting relevant and material evidence. After all, they had called some 41 witnesses before the Mid-Trial Ruling and two after. The issue is better understood as being two-fold: (a) whether they had submitted relevant and material evidence that the trial judge did not assess because he had limited the issues as he did, and (b) whether the appellants had further evidence to submit.

[125] In order to determine if testimony is relevant and material, it is necessary to understand the issue to which the evidence was directed. As I interpret the appellants’ case, they were attempting to prove that they had a right to harvest in the areas identified because of the historic, mobile nature of the Métis peoples’ lifestyle, which extends to the modern context. The appellants assert that the Northwest is, and always has been, recognized in their culture as land upon which they are permitted to harvest, having regard for their connections to the southern, eastern and western Métis groups from which they derive. The pivotal question concerns the narrowing of the appellants’ defence to the specific areas immediately south of the HMCONWS, without considering whether the Aboriginal right at issue could be grounded in a claim that extended throughout the province and beyond.

[126] In precise terms, the appellants want to obtain, at the very least, a ruling that would determine how far south the Métis community of the Northwest extends. They do not accept that the creation of the HMCONWS was the end of their claim. In particular, they sought to adduce evidence to prove that the Métis rights-bearing community of Northwest Saskatchewan extended south of Meadow Lake. To prove that claim, they planned to adduce evidence to show that theirs was a highly mobile way of life, which saw individuals move from one settlement to another and to harvest in the places in between. According to their position, if the Métis peoples were migratory, it would be impossible to think of them as being confined to the territory described by the triangle of the HMCONWS. They assert that no matter how large that area is, the Métis people would be travelling to and from it as they plied their various trades. For them, the issue is the assertion that the Métis people, occupying substantial parts of Saskatchewan, Alberta and Manitoba in 1870, belonged to the same collective or, at the very least, possessed enough cultural similarities that they would be entitled to exercise s. 35 rights in the north, central and southern parts of the province.

[127] While I find that the testimony of the witnesses was not always focussed on these issues, the general tenor of their evidence was directed to the central issue: whether the Métis peoples of Saskatchewan or of the Northwest were a migratory people such that their right to harvest extended to the areas where the appellants were harvesting.

[128] However, I also conclude that a court need not make a ruling regarding the whole of an Indigenous collective’s asserted traditional territory in order to resolve the question of whether a particular individual was exercising s. 35 rights. To use the language of Powley, where Métis harvesting rights are asserted, it falls to the claimant to establish that they “belong to an identifiable Métis community with a sufficient degree of continuity and stability to support a site-specific aboriginal right”, with the relevant community being “a group of Métis with a distinctive collective identity, living together in the same geographic area and sharing a common way of life” (at para 12). The need, in this analysis, to determine the geographic area occupied by a particular community means that often a court will not be able to assess whether an accused had an Aboriginal right in the location where they harvested without considering the broader evidence of the people’s traditional territory, including portions of the traditional territory in a neighbouring province, if such evidence is relevant.

[129] Laviolette is one example of this principle. The trial judge there (the same trial judge as here) considered evidence of the Métis travelling from Île à la Crosse to Lac La Biche in Alberta to determine the perimeter of the HMCONWS.

[130] Another example is R v Hirsekorn, 2013 ABCA 242, [2013] 8 WWR 677, leave to appeal to SCC refused, 2014 CanLII 2421 [Hirsekorn]. The accused had defended the charge of hunting without a licence by claiming “a right to hunt for food in central and southern Alberta, or more broadly, on the plains, because this would better reflect the mobile lifestyle” of the Métis (at para 53; see also para 15). Given the breadth of the claim, it is similar to the appellants’ claim.

[134] Having regard for the seeming relevance and materiality of the appellants’ evidence, the trial judge was required to receive it and to assess it to determine whether the claim under s. 35 was made out. On this point, I highlight R v Seaboyer; R v Gayme, 1991 CanLII 76 (SCC), [1991] 2 SCR 577. In Seaboyer, McLachlin J., as she then was, commented for the majority on the time-hallowed principle of making full answer and defence to avoid the conviction of the innocent (at 611–612):

Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. It follows from this that the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law.

These principles and procedures are familiar to all who practise in our criminal courts. They are common sense rules based on basic notions of fairness, and as such properly lie at the heart of our trial process. In short, they form part of the principles of fundamental justice enshrined in s. 7 of the Charter. They may be circumscribed in some cases by other rules of evidence, but as will be discussed in more detail below, the circumstances where truly relevant and reliable evidence is excluded are few, particularly where the evidence goes to the defence. In most cases, the exclusion of relevant evidence can be justified on the ground that the potential prejudice to the trial process of admitting the evidence clearly outweighs its value.

[135] By restating the issues as he did, the trial judge limited the evidence that he could consider. He narrowed the appellants’ defence to determining not just whether the appellants had a right to harvest where they were hunting and fishing, but whether the community that had been previously labelled the HMCONWS extended to those areas. The trial judge’s decision in that regard was the antithesis of the appellants’ defence, which was not based on a community or a settlement but on a nomadic right to harvest. [Emphasis by PJM]

[136] Notwithstanding the challenges with the approach the parties have taken in seeking to resolve complex constitutional claims through a criminal trial, I conclude that the summary conviction appeal judge erred by not finding an error in the trial judge’s decision. He ought to have concluded that the trial judge had erred by not considering all of the evidence tendered by the appellants going to the question of whether the mobility of the Métis peoples could ground a right to harvest in the areas identified. As my earlier analysis indicates, Powley did not require the trial judge to come to that conclusion; and, upon my review of the evidence, at least some of it is directed to the broader issues that the appellants raise.

[137] The words of McLachlin C.J.C. in Cunningham must be repeated: “the history of the Métis is one of struggle for recognition of their unique identity as the mixed race descendants of Europeans and Indians” (at para 70). At some point, the Métis of Saskatchewan should be able to put forward their claim to a broad harvesting right in the north, central and southern part of the province. In short, the trial judge erred in law when he decided to narrow the appellants’ defence on the basis that “claiming rights as part of the Métis nation comprising all of Saskatchewan and parts of Manitoba and Alberta is inconsistent” with Powley (Mid-Trial Ruling). The appellants were denied the right to make full answer and defence. The summary conviction appeal judge erred by sustaining that conclusion.

D. The date of effective European control

[139] It is sufficient to note two issues, argued by the appellants, that the Court should not be taken as having decided.

[140] In the first issue, the appellants argue that it was not open to the Crown to assert a different date of control in their trial than what the trial judge had found in Laviolette. As I have indicated previously, the Crown in Laviolette asserted that the date of effective control should be 1870, being the year when Canada acquired Rupert’s Land from the Hudson Bay Company. But the Crown called no evidence in Laviolette to support this proposition and, indeed, admitted that the Métis were present in 1870. Based on the defence expert evidence, the trial judge held that the date of effective control was 1912. As mentioned, the Crown did not appeal Laviolette.

[141] With respect to the second issue, the appellants argue that the evidence relied upon by the Crown in the within trial was directed to the treaty process in which they were not a part. As such, they say the trial judge made a legal error by basing his finding of a date of effective control on irrelevant evidence. They say further that the trial judge made no finding as to whether the Métis way of life changed as a result of European control, and the effect such a ruling might have on fixing the date of effective control.

[142] To be clear, the Court in the present appeals has decided neither issue.

E. The remedy

[145] As such, there must be a new trial. If at all practical, the matter could be returned to the trial judge, whose understanding of the material is clearly demonstrated by Laviolette and this trial. In any event, efforts should be made to determine whether the historical evidence from both trials can be used as evidence in the next trial.

VI. Conclusion

[146] The appeals are allowed and a new trial is ordered.