This week’s top three summaries: R v Kitch, 2023 NSCA 33: #fraud elements and reasons, R v RW, 2023 ONCA 250: IAC and #re-election, and R v Taher, 2023 ONSC 1568: #motive to fabricate.
This week's top case deals with the elements of fraud and required reasons. For great general reference on the law of fraud prosecutions, 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 Kitch, 2023 NSCA 33
[May 5, 2023] Fraud: Elements and Requirement for Reasons, Violation of Policy Does Not Necessarily Mean Fraud [Reasons by Beaton J.A with Farrar and Derrick JJ.A. concurring]
AUTHOR’S NOTE: In general, fraud has one the most forgiving actus reus requirements for the Crown. An act of dishonesty that creates risk of deprivation is sufficient. Here, the trial court's reasons were overturned even though the evidence appeared clear that the accused used her work expense account for increasing amounts personal expenses. A key finding of the appeals court was that a procedural, policy or ethical breach was not enough without more explanation in reasons. The rest of the decision provides an excellent overview of the law of fraud.
Introduction
[1] By all accounts, the appellant Tracy Kitch’s three-year tenure as Chief Executive Officer (“CEO”) of the Halifax IWK Children’s Hospital (“IWK”) was satisfactory, save one noteworthy exception. Over time, Ms. Kitch’s use of her corporate credit card, and her claiming and reporting of expenses, came under a degree of scrutiny that ultimately led to her resignation. The following year she was charged with fraud contrary to Section 380(1) of the Criminal Code and fraud by a public officer contrary to Section 122 of the Code. Convicted on both counts, Ms. Kitch filed an appeal to this Court. The appeal was granted with reasons to follow. These are those reasons.
[2] The appellant began her tenure as CEO in September 2014. She signed a five-year employment contract which, among other matters, required her to abide by all policies and procedures in effect at the IWK. The contract contemplated reimbursement for her documented business-related expenses and travel, and a relocation allowance to assist in her move to Halifax. The appellant was provided a corporate credit card, and acknowledged in writing that it was not for personal use.
[3] Soon into her term, IWK staff began to experience difficulties in tracking and documenting the appellant’s business versus personal expenses. The problem continued over time, involving various IWK personnel attempting to identify personal expenses of the appellant charged on her corporate credit card, personal travel by the appellant using IWK-purchased flight passes, and personal expenses invoiced directly to the IWK….
[4] In October 2016 the provincial government issued a requirement that executives’ expenses be posted online. This obligation captured the appellant in her role. Eventually, media attention came to bear on the appellant’s expense history, which led to discussions between her and two successive IWK Board of Directors chairs regarding the accuracy and veracity of her expense claims. By September 2017 the scrutiny was so intense that the appellant, having by then reimbursed the IWK thousands of dollars for personal expenses, resigned. In October 2018 she was charged with the fraud offences.
[5] A 12-day trial was held before Judge Paul Scovil of the Provincial Court (“the judge”) in November 2021. The judge heard from 19 witnesses and received dozens of documentary exhibits, some numbering hundreds of pages in length. In February 2022, he convicted the appellant of both offences and stayed the s. 122 charge (R. v. Kitch, 2022 NSPC 4). She was later sentenced to five months’ custody, to be followed by 12 months’ probation. The appellant launched an appeal of both conviction and sentence and was released on bail pending appeal, with conditions.
Issues
[8] For the purposes of this decision, I reorganize and focus on these questions:
(a) Did the judge err in not linking his factual findings to the elements of each of the offences?
(b) Did the judge err with respect to sufficiency of reasons?
(c) Did the judge err in not reconciling conflicting evidence?
Analysis
[13] Turning to the first issue, the appellant asserts the judge erred in not making sufficient factual findings to support all of the elements of the two offences charged. This requires consideration of what the Crown was required to prove. The Supreme Court of Canada has previously provided direction:
(a) in relation to a charge of fraud contrary to s. 380(1), the following elements must be proved:
(i) a dishonest act, established by proof of deceit, falsehood or other fraudulent means,
(ii) deprivation, established by proof of detriment, prejudice or risk of prejudice to the economic interests of the victim, caused by that act,
(iii) the accused’s subjective knowledge of their prohibited act,
(iv) the accused’s subjective knowledge the prohibited act could result in the deprivation of another (including knowledge the other’s pecuniary interests are at risk).
See R. v. Théroux, [1993] 2 SCR 5 at paras. 16, 24, 27.
(b) in relation to a charge of breach of trust contrary to s. 122, the fraud must likewise be made out, with the following additional elements also proved:
(i) the accused was an official,
(ii) the accused was acting in connection with the duties of their office,
(iii) the accused breached the standard of responsibility and conduct demanded by the nature of the office,
(iv) the accused’s conduct was a serious and marked departure from the standards expected of one in the accused’s position of public trust,
(v) the accused acted with the intention to use the public office for a purpose other than the public good (for example, a dishonest, partial, corrupt or oppressive purpose).
See R. v. Boulanger, 2006 SCC 32 at para. 58.
[14] The judge’s reasons do not reveal, even obliquely, how he applied these legal requirements to the facts of the case. Although the judge reviewed the factual circumstances in his reasons, he did not explain how they supported his ultimate conclusion the Crown had met its burden.
[15] The bulk of the judge’s decision contains a recounting of the circumstances, which must reasonably be inferred to constitute his factual findings. The judge then identified the legal test(s) to be applied, following which he went directly to the conclusions reached, without setting out a bridge of analysis to link the facts to those conclusions. It is not possible to discern from the judge’s reasons whether the law, which he both cited and is presumed to know, was properly applied.
[16] Concerning the actus reus of the offences, the appellant asserts while there was no dispute before the judge that her actions likely breached IWK policy, it was nonetheless incumbent on the judge to identify how such a violation would amount to dishonesty. The appellant says the judge erred in appearing to “fixate” on a breach of IWK policy, implying that the dishonesty or dishonest nature of the act could be found in that breach. The Crown responds the judge’s conclusion the policy breaches “crossed the line” to criminal behaviour are supported by the evidence at trial that the appellant “failed to flag the majority of her personal expenses”, “failed to pay back most of those personal expenses until public scrutiny fell” on them, and led others to believe “improper personal expenses were being paid back”.
[17] In Landry c. R., 2022 QCCA 1186, the Quebec Court of Appeal drew on the history of the Supreme Court of Canada’s discussions in Théroux, R. v. Zlatic, 2 SCR 29 and R. v. Riesberry, 2015 SCC 65 to set out the requirements for the actus reus and mens rea of fraud:
[Translation] [106] In 1978, Canadian fraud law evolved decisively in the continuation of the Supreme Court's decision in Olan which is based on several English decisions.
[107] In this decision, the Supreme Court espouses "an interpretation liberal of [this] offence". The Dickson C.J. adopts the "risk of harm" test set out in the English decision R. v. Allsop:
Deprivation is established if [it] proves that the pecuniary interests of the victim have suffered damage or harm or there is a risk of harm to them. It is not essential that the fraud leads to a real pecuniary loss. The excerpt R. v. Allsop, from the judgment of the Court of Appeal of England, describes well, in my opinion, the state of the law on the role of pecuniary loss in the Fraud (at pp. 31-32):
In general, a fraudster wants to gain an advantage first and foremost. The harm caused to its victim is secondary and incidental. It is "intentional" only because it is part of the expected result of the fraud. If the deception puts at risk the pecuniary interests of the person misled, this is sufficient to constitute fraud, even if no actual loss results and even if the fraudster did not intend to cause any real loss.
[108] In 1990, in Pereira, Proulx J. of this Court observes that, according to "this modern conception, fraud encompasses necessarily other forms of appropriation of goods that were formerly very compartmentalized and were the subject of scholarly debate. Since Olan, supra, these debates have become very rare".
[109] Fraud has two main elements, the prohibited act (the actus reus) and the required state of mind (the mens rea).
[110] The actus reus has two elements: 1) the dishonest act and (2) deprivation.
[111] The dishonest act is established by the proof of a deception, a lying or “other fraudulent means”. The deprivation element is established if it is proved that, as a result of the dishonest act, the pecuniary interests of the victim has suffered damage or injury or there has been a risk of harm to him.
[112] The mental element of fraud requires two states of mind: 1) subjective knowledge of the prohibited act and 2) subjective knowledge that the prohibited act could cause deprivation to another person (which may consist in the knowledge that the pecuniary interests of the victim are jeopardized).
[emphasis added; footnotes omitted] [18] Here, the judge’s analysis of the mens rea and actus reus of the s. 380(1) fraud charge is exquisitely brief:
[66] While Ms. Kitch may have been an exemplary CEO in many other areas, the question here was her use of corporate funds fraudulently.
[67] As CEO, and having signed documents relating to the same, Ms. Kitch clearly had knowledge that the use of flight passes, and corporate credit cards were not to be used for personal expenditures. Additionally, each and every expense claim contained certification that they were proper charges. They obviously were not.
[68] The numerous flights to and from Toronto for no reason other than personal travel to her home were booked utilizing flight passes paid for by the IWK on an unauthorized basis.
[69] Personal use of corporate funds was clear in taxi charges, hotel stays for relatives, iTunes, Netflix, and data overages. Using a rental car for personal use and not advising of, or paying the parking tickets related to the same, fall within the area of fraudulent activity. It should also be noted Ms. Kitch assured two separate Board Chairs that her expenses were in order, when they clearly were not.
[70] The evidence also contains the fact that Ms. Kitch repaid the IWK of over $45,000 for personal expenditures that were incurred by the IWK.
[71] The evidence before the court clearly showed that Ms. Kitch used corporate funds for personal expenses, placing IWK funds in potential peril.
[72] On the basis of all the evidence, I find the accused guilty of the one count of fraud.
[19] The judge’s treatment of the elements of the s. 122 charge suffers from the same frailty:
[74] The leading case regarding this section is R. v. Boulanger, [2006] 2 S.C.R. 49. There the Supreme Court of Canada set out the elements the Crown needs to prove in this matter. They are:
-
- The accused is an official;
The accused was acting in connection with the duties of her office; - The accused breached the standard of responsibility and conduct
- demanded of her by the nature of the office;
- The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and
- The accused acted with the intention to use her public office for a purpose other than public good.
- The accused is an official;
[75] Here, Ms. Kitch was a very high ranking public servant.
[76] Her action utilized the credit which came with her office to obtain personal enrichment. Given her position as the Chief Operating Officer of a Children’s Hospital, which services the entire Maritime region, it demands the strictest adherence to a high ethical standard. Ms. Kitch clearly breached that standard. There can be no doubt that the flagrant abuse of flight passes and credit cards are a marked departure from her position of public trust. The actions taken by Ms. Kitch in her criminal use of public funds can not be seen as other than against the public good.
[emphasis in original]
[20] The trial took almost 2.5 weeks of court time and, as the judge broadly described it, “involved a large number of documentary exhibits and a number of witnesses”. Yet without knowledge of the record put before the judge, respectfully, I do not see it possible for a reader of the above passages to appreciate the length and breadth of the information the judge needed to assess, nor to garner how that assessment was performed.
[21] Despite the Supreme Court of Canada’s recent caution to appellate courts to refrain from assessing reasons “removed from the live issues at trial” (G.F. at para. 83), it is not possible to appreciate why the judge was left without reasonable doubt. The judge provided “the what” - his conclusion of the appellant’s guilt - but not “the why” of how he made that decision (R. v. R.E.M., 2008 SCC 51 at para. 17).
[22] The judge’s decision gives rise to the question whether convictions were entered because of a procedural, policy or ethical breach by the appellant. Such a breach(es) does not, on its own, translate directly to a conviction for fraud or fraud by a public officer. However, the judge’s statements the appellant engaged in “unauthorized” use of flight passes or that “using” a rental car for “personal use” was “fraudulent activity” do not illuminate his reasoning, absent any amplification of his analysis. [PJM Emphasis]
[23] The judge did not have to provide exhaustive reasons that touched on each and every aspect of the evidence. However, we do not know how the judge reached his determination of the actus reus - the guilty act - in relation to the offence of fraud.
[24] The judge’s analysis also prevents appreciation of his consideration of the mens rea of the offences. For example, the judge remarked on the appellant having repaid monies to her employer. In what way, if at all, did this factor in to his determination of her culpability? One cannot be sure. The judge also said certain charges made by the appellant “fall within the area of fraudulent activity” and that she had placed “IWK funds in peril”. Do these observations go to the mens rea of the offences? That question cannot be answered with certainty. Without a demonstration of the process of connecting his factual findings to the conclusions he reached it is not possible to grasp how any of what the judge did discuss informed his ultimate determination.
[25] Gaps in the judge’s reasons discussed above seep into and are to some degree replicated in another ground of appeal raised by the appellant, that of sufficiency of reasons. The seminal decision in R v. Sheppard, 2002 SCC 26 was the spearhead for a series of Supreme Court of Canada decisions heralding a more contemporary approach to the need for “reasoned reasons”:
22 There is a general sense in which a duty to give reasons may be said to be owed to the public rather than to the parties to a specific proceeding. Through reasoned decisions, members of the general public become aware of rules of conduct applicable to their future activities. An awareness of the reasons for a rule often helps define its scope for those trying to comply with it. The development of the common law proceeds largely by reasoned analogy from established precedents to new situations. Few would argue, however, that failure to discharge this jurisprudential function necessarily gives rise to appellate intervention. New trials are ordered to address the potential need for correction of the outcome of a particular case. Poor reasons may coincide with a just result. Serious remedies such as a new trial require serious justification.
23 On a more specific level, within the confines of a particular case, it is widely recognized that having to give reasons itself concentrates the judicial mind on the difficulties that are presented [citations omitted]. The absence of reasons, however, does not necessarily indicate an absence of such concentration. We are speaking here of the articulation of the reasons rather than of the reasoning process itself. The challenge for appellate courts is to ensure that the latter has occurred despite the absence, or inadequacy, of the former.
[emphasis added]
- Judges are presumed to know the law.
- Judges do not need to discuss all of the evidence put before them in providing the decision.
- Judges do not need to identify each and every conclusion reached nor resolve each and every inconsistency in the evidence.
- Judges do not need to take a formalistic approach to giving reasons.
- Judges are not held to a standard of perfection in giving reasons.
[27] R. v. Braich, 2002 SCC 27 continued the Court’s progressive perspective on a judge’s task of providing reasons, echoed again the following year in R.E.M., when appellate courts were reminded that: “. . . [t]he object is not to show how the judge arrived at his or her conclusion, in a ‘watch me think’ fashion. It is rather to show why the judge made that decision” (para. 17). What the judge concluded must be linked to why it was concluded, and the connection between the two must be identifiable and understandable:
[28] However, R.E.M. also emphasized the restraint to be exercised on appellate review:
[56] If the answers to these questions are affirmative, the reasons are not deficient, notwithstanding lack of detail and notwithstanding the fact that they are less than ideal. The trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding of credibility, or to the conclusion of guilt or innocence. Nor should error of law be found because the trial judge has failed to reconcile every frailty in the evidence or allude to every relevant principle of law. Reasonable inferences need not be spelled out. [...] Finally, appellate courts must guard against simply sifting through the record and substituting their own analysis of the evidence for that of the trial judge because the reasons do not comply with their idea of ideal reasons. [...]
[29] The Supreme Court of Canada reviewed Sheppard’s functional approach in G.F. The Court’s comments illustrate this functional approach to the inquiry into sufficiency of reasons continues (paras. 69 and 74).
[33] Here the judge’s reasons spanned 16 pages. Length of reasons is immaterial as they are “...not measured by the inch or the pound...” (R. v. Lagace, [2003] OJ No. 4328, 178 O.A.C. 391 (ONCA) at para. 32). Rather, the appropriate focus is on these questions: does the judge’s decision permit a functional and contextual understanding of his reasons and conclusions? Is meaningful appellate review possible? I do not read the judge’s reasons for conviction as:
[15] [...] sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review. (R.E.M., supra)
[34] With respect, I am not persuaded the reasons, read as a whole, in the context of the evidence and arguments, adequately explain why the decision was reached in this case. I am unable to discern why the judge was satisfied, on the totality of the evidence, of the appellant’s guilt. The reasons do not reveal any consideration of the defence arguments, and thus we do not know how or if the judge viewed the evidence differently than was suggested by the defence. The error is not in the omission alone, but in reasons that fail to identify how the judge reached the verdicts beyond a reasonable doubt (R. v. Dinardo, 2008 SCC 24 at paras. 34-35). I do not see the judge’s reasons as sufficient to permit meaningful appellate review and avoid intervention by the Court (R. v. D.B., 2022 SKCA 76 at para. 65). As considered in G.F.:
[79] To succeed on appeal, the appellant’s burden is to demonstrate either error or the frustration of appellate review: Sheppard, at para. 54. Neither are demonstrated by merely pointing to ambiguous aspects of the trial decision. Where all that can be said is a trial judge may or might have erred, the appellant has not discharged their burden to show actual error or the frustration of appellate review. Where ambiguities in a trial judge’s reasons are open to multiple interpretations, those that are consistent with the presumption of correct application must be preferred over those that suggest error: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 10-12, citing R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at pp. 523-25. It is only where ambiguities, in the context of the record as a whole, render the path taken by the trial judge unintelligible that appellate review is frustrated: Sheppard, at para. 46. An appeal court must be rigorous in its assessment, looking to the problematic reasons in the context of the record as a whole and determining whether or not the trial judge erred or appellate review was frustrated. It is not enough to say that a trial judge’s reasons are ambiguous — the appeal court must determine the extent and significance of the ambiguity.
[emphasis added] [35] I refer to my earlier discussion of the judge not connecting the facts of the case to the elements of the offences, and its overlap with this second of the appellant’s arguments. To the extent the reasons do not reveal that critical connection, there is an inherent ambiguity.
[36] A further ambiguity relates to the judge’s lone credibility finding.
Following a multiple day trial with numerous witnesses, the judge made no distinct or particular credibility findings in his decision, stating only “Trial Judges are often called on to resolve credibility between witnesses. In this matter, all the witnesses were credible.”
[37] Both the appellant and the Crown agree the case before the judge did not turn on issues of credibility. Nonetheless, credibility was an important consideration because, while the defence called no evidence, not all Crown witnesses who testified were in agreement with one another. For example, there was conflicting evidence as between Ms. Lucio, Executive Assistant to the appellant, whom the judge characterized as a “key Crown witness,” and Ms. Feron, IWK legal counsel. Their evidence diverged sharply on several points, including about particular instructions given to staff concerning assumption by the IWK of certain of the appellant’s personal expenses.[1] Yet we know nothing of the judge’s view of this evidence despite it potentially going to the dishonesty element of the offences.
[41] In my view the judge’s reasons do not permit the Court to go as far as concluding “the trial decision can be rendered more comprehensible when read in the context of the record” (Bruno v. Dacosta, 2020 ONCA 602 at para. 23).
[42] In conclusion, it is not for this Court to attempt to articulate the findings or infer the credibility determinations the judge does not appear to have made, or if he did, have not been sufficiently explained. Regrettably, the decision does not provide “an intelligible pathway to the result” the judge reached (R. v. Assi, 2023 MBCA 2 at para. 6). The error rests in this Court being left unable to conduct the meaningful appellate review contemplated in the jurisprudence and articulated in R.E.M.:
[57] [...]To conduct meaningful appellate review, the court must be able to discern the foundation of the conviction. Essential findings of credibility must have been made, and critical issues of law must have been resolved. If the appellate court concludes that the trial judge on the record as a whole did not deal with the substance of the critical issues on the case (as was the case in Sheppard and Dinardo), then, and then only, is it entitled to conclude that the deficiency of the reasons constitute error in law.
[emphasis added]
[43] For the foregoing reasons the appeal was allowed, the convictions quashed and a new trial ordered.
R v RW, 2023 ONCA 250
[April 14, 2023] The right to elect mode of trial and Ineffective Assistance of Counsel [Gary Trotter J.A. with B.W. Miller and L. Favreau JJ.A. concurring]
AUTHOR’S NOTE: G.Arthur Martin's famous essay on the role of the defence lawyer receives a highlight in this decision. Three decisions that are so fundamental the lawyer cannot make them on behalf of their client are: (1) election as to mode of trial, (2) how to plead, and (3) whether to testify. Here, the defence lawyer missed the deadline to re-elect despite his client's intention to do so. The decision is useful to suggest that there may be an argument, pre-appeal to change the accused's election before a trial even if this happens (where it is the fault of counsel). The process would involve another lawyer making representations and an affidavit from trial counsel. Overall, the decision is a stark reminder to counsel to make sure their calendars are up to date with their deadlines on matters and to maintain written instructions on the issue of election.
A. OVERVIEW
[1] Due to a confluence of unfortunate circumstances, the appellant was deprived of his right to elect his preferred mode of trial – trial by judge alone. This was caused by the inadvertence of counsel in failing to file a notice of re-election within the time required after the appellant was committed to stand trial, combined with the trial Crown’s refusal to consent to the re-election, even though she previously indicated that she would. The result was a miscarriage of justice. I would order a new trial.
B. BACKGROUND FACTS
[2] The appellant was charged with very serious offences: sexual interference (Criminal Code, R.S.C. 1985, c. C-46, s. 151), sexual assault (s. 271), and invitation to sexual touching (s. 152)…
C. THE APPELLANT’S ELECTION AS TO MODE OF TRIAL
(1) Introduction
[5] I will discuss the law of elections in greater detail below, but in order to understand what went wrong in this case, it is necessary to briefly mention the limitations that are placed on an accused person’s ability to re-elect their mode of trial.
[6] The appellant initially elected to be tried by a court composed of a judge and a jury. At the relevant time, s. 561(1)(b) of the Criminal Code provided that the appellant had the right to re-elect to be tried by a judge of the Superior Court without a jury, as of right, until the fifteenth day after the completion of the preliminary inquiry. After that, the consent of the Crown is required.2
[7] In this case, the notice of re-election was not filed on time. However, on its Pre-Trial Form signed by the Crown, one day after the deadline to re-elect, the Crown answered the questions – “Is there any prospect of a re-election” and “Will the Crown consent?” – in the affirmative. By the time of the Pre-Trial Conference, the Crown had changed its mind. As explained below, the missed deadline was the fault of trial counsel; the reason for the Crown’s withdrawal of its consent to the appellant’s re-election is unknown.
[10] Trial counsel thought that the complainant was a very good witness on the discovery. He recommended that the appellant re-elect trial by judge alone. This advice was also driven by counsel’s belief that juries are sympathetic to young complainants. Trial counsel said that the appellant accepted this advice.
[11] Trial counsel failed to file the appellant’s notice of re-election within the prescribed time. Initially, this was not a cause for concern because, in trial counsel’s experience, the Crown generally consents to a re-election to a judge- alone trial. He thought it would happen in this case. As noted, on the Pre-trial Form, the Crown indicated she would consent to a re-election. However, she changed her mind at the Pre-Trial Conference and could not be persuaded to consent to the re-election. Trial counsel said that he approached this Crown a number of times in an attempt to convince her to consent to the re-election, but to no avail. Trial counsel advised the appellant of the problem and said he would try to “fix it”.
[12] Trial counsel thought that the situation might be repaired by bringing a motion in the Superior Court of Justice to “strike” the appellant’s original election. However, he thought that because he had caused the problem by not filing a notice of re-election on time, he would need to withdraw from the case and have another lawyer represent the appellant. This would likely have delayed the trial and put the appellant to considerable expense.
[13] Trial counsel filed a motion to “strike” the appellant’s election and scheduled a date for hearing. However, the motion was abandoned. Trial counsel swore that he met with the appellant to discuss the issue. He made it clear to the appellant that the decision to proceed with the motion was “entirely his decision to make.” He further explained: “At the end of our meeting, Mr. [W.] instructed me not to proceed with the application to strike and to maintain the election to be tried by judge and jury. He wanted a trial date as soon as possible.” In cross-examination, trial counsel said “[the appellant’s] instructions were the quickest date possible.”
(b) The Appellant
[14] In his affidavit, the appellant stated: “I did not want a jury for my trial.” Regarding trial counsel’s strategy to elect trial by judge and jury and re-assessing the issue down the road, he said: “I do not specifically remember him saying this, but it is possible that he did. I do remember making it clear that regardless of how he handled the strategy in the meantime, I did not want to have a jury for my trial at the end of the day. [Trial counsel] and I agreed that the plan was to have a judge-alone trial.”
[15] …Trial counsel explained the options that were available to him, which included going ahead with a jury trial, or possibly firing trial counsel and having another lawyer come on board. In his affidavit, the appellant said that the latter was “not acceptable” for the following reasons:
I had been dealing with [trial counsel] for more than a year, and I was not comfortable starting from scratch with a new lawyer, especially when we were not even sure that firing [trial counsel] would allow me to re-elect. I was also concerned about the cost of hiring a new lawyer after [trial counsel] had done so much work. I asked [trial counsel] if he was comfortable running the case in front of a jury. He told me he was comfortable before jury. I did not want a jury trial, but I did not see another choice.
[16] … Until trial counsel told him that he had missed the deadline, the appellant was unaware that there was a time limitation on being permitted to re-elect as of right.
[17] … In short, the appellant believed that his only choices were to: (a) discharge his trial counsel and get a new lawyer, who would argue the motion and represent him at trial; or (b) proceed with a judge and jury trial with the lawyer he already had. He said that he did not want to have a judge and jury trial, but nor did he want to fire trial counsel. He also did not wish to delay his trial. Ultimately, he chose the latter course (judge and jury), believing that he had “no choice”. The appellant described his predicament as “heart-breaking”.
D. ANALYSIS
[18] In terms of the proper framework for adjudicating this issue on appeal, the ineffective assistance of counsel (IAC) framework is applicable: R. v. White, 2022 SCC 7, 411 C.C.C. (3d) 419. In White, Karakatsanis J. referenced R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 616 (a guilty plea case), and held that the mere loss of the right to make a proper election was not sufficient to ground such a claim; an appellant must prove subjective prejudice arising from counsel’s ineffectiveness.
[19] Thus, as with any other IAC claim, the appellant must establish the following: (1) the facts material to the claim of ineffective assistance on the balance of probabilities; (2) that the representation provided by counsel fell below the standard of reasonable professional assistance in the circumstances; and (3) the ineffective representation resulted in a miscarriage of justice: , (2005) 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 119-120.
[20] Before applying these factors, it is helpful to consider the elemental nature of the right to elect the mode of trial. It has long been recognized in Canadian criminal law that the right of an accused person to elect their preferred mode of trial is of critical importance. This view crystallized in G. Arthur Martin’s famous essay, “The Role and Responsibility of the Defence Advocate” (1969-1970), 12 Crim. L.Q. 376 at pp. 387-388, in which he identified three decisions in a criminal case that are so fundamental that the lawyer cannot make them on behalf of their client: (1) the election as to mode of trial; (2) how to plead; and (3) whether to testify: see also R v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73, at paras. 17-18; R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at paras. 56-57; and R. v. McDonald, 2022 ONCA 838, 164 O.R. (3d) 321, at paras. 31 and 35.
[22] The Crown does not take issue with the fundamental nature of the right to elect the mode of trial. However, she submits that the same values do not attach to re-election decisions. I disagree. The right to re-elect is an extension of the original right to choose one’s mode of trial. Parliament has provided a limited right to re-visit the original election. It is part and parcel of the same fundamental decision.
[23] Returning to the IAC framework, it is my view that the appellant has established all three elements. In terms of proving the underlying facts in support of the allegation of ineffective assistance, on balance, the materials filed on the fresh evidence application confirm that the appellant wanted a trial by judge alone.
[24] The fact-finding task at this stage would have been more straightforward had trial counsel obtained written instructions concerning the original election and the attempt to re-elect. The failure to obtain written instructions about important steps in the criminal trial process makes it more difficult to decide IAC claims on appeal. Seeking written instructions from a client on critical decisions is a matter of professional prudence. The failure to do so is “ill-advised and contrary to counsel’s best interests”: R. v. B. (W.E.), 2012 ONCA 776, 366 D.L.R. (4th) 690, at para. 10, aff’d 2014 SCC 2, [2014] 1 S.C.R. 34. See also R. v. Trought, 2021 ONCA 379, 156 O.R. (3d) 481, at paras. 76-77.
[25] Nonetheless, the fresh evidence record shows that the appellant wished to have a trial by judge alone and that trial counsel took some steps to achieve that goal on the appellant’s behalf. What is less clear is why counsel’s efforts were terminated. Trial counsel swore that he was “instructed” to abandon the motion. The motion did not go ahead. The evidence demonstrates that the appellant seemed resigned to proceeding with a jury trial. However, given the options that were explained to him, I accept the appellant’s claim that he believed that he had no real choice.
[26] Second, there can be little doubt that the representation provided by counsel fell below the standard of reasonable professional assistance in the circumstances. Sometimes, this standard is met by demonstrating a course of conduct spanning the entire trial (see , 2023 ); in other cases it is established by a single misstep that has dramatic consequences (see ). The key to success in both circumstances is proof of prejudice.
[27] In this case, there was critical misstep – trial counsel missed a statutory deadline that would have allowed his client to re-elect as of right. This is akin to missing a limitation period in the civil context....
[28] There is another aspect of trial counsel’s performance that fell below the standard of reasonable professional assistance. Even though it was not explored in any detail during cross-examination, I am perplexed by trial counsel’s belief that the solicitor-client relationship needed to be terminated in order to bring the motion to “strike” the election. I accept that, having created the situation, it was untenable for trial counsel to argue the motion, especially if he were to swear an affidavit in support of the motion. However, it was not clear why he would need to withdraw from the case altogether and have the appellant “start over” with new counsel. Had the motion succeeded, trial counsel could have continued to represent the appellant at trial. Had the motion been unsuccessful, the appellant would have been in the exact same situation he found himself in at trial.
[29] By creating this false dichotomy, trial counsel failed to properly advise the appellant of his options. The motion to “strike” ended up being abandoned based on this false premise. I accept the appellant’s contention that he felt he had no choice but to proceed with a jury trial. In fact, he did have other options, but they were not explained to him.
[34] But the appellant should not be in a weaker position by making or acquiescing in the decision not to pursue the motion – it was predicated on erroneous legal advice….
[35] The last factor to consider on the IAC claim is whether the appellant has established that the shortcomings in trial counsel’s representation resulted in a miscarriage of justice. As noted above, the Supreme Court of Canada in White held that the mere loss of the right to elect one’s mode of trial does not necessarily amount to a miscarriage of justice. An appellant must demonstrate subjective prejudice. The claim in White failed on this basis. As Karakatsanis J. said, “Here, Mr. White failed to state that he would have chosen differently had counsel informed him of his right to elect his mode of trial.”
[36] That is not the situation here. The appellant was adamant in his desire to be tried by a court composed of a judge sitting without a jury. The Crown submits that, if he was sincere, he should have followed through with his motion, but he did not do so. But as I have explained above, the appellant was not provided with proper advice about his options to rectify the predicament created by trial counsel’s initial misstep in missing the deadline, and the Crown’s curious change of position and subsequent intransigence on the issue.
E. DISPOSITION
[37] I would allow the appeal, set aside the conviction, and order a new trial on all counts on the indictment. Pursuant to s. 686(5)(b) of the Criminal Code, I would order that the new trial be held before a judge of the Superior Court of Justice sitting without a jury.
R v Taheri, 2023 ONSC 1568
[March 10, 2023] Absence of Evidence of a Motive to Fabricate is not Evidence of No Motive to Fabricate [V. Christie J.]
AUTHOR’S NOTE: This decision provides an excellent review of the case law on the issue of complainant motive to fabricate. Where trial judges turn an absence of evidence of motive to fabricate into a finding that the complainant did not have motive to fabricate they risk reversing the onus of proof on a criminal trial. Where defence argue there was a motive, there may be more latitude for judges to address that issue in reasons, but otherwise this topic should find very little coverage in reasons for judgement and in no circumstances should the trial court enhance the credibility of the complainant by pointing to a lack of evidence suggesting a motive to fabricate.
[2] The Appellant was a personal support worker (“PSW”) at the Acute Assessment Unit of Markham-Stouffville Hospital. At the relevant time, the complainant, J.C., was a 17-year- old high school co-op student who worked in the unit from February to May 2017. The trial judge found that, on May 31, 2017, the Appellant hugged J.C., kissed her neck and cheek, and touched her buttocks in a sexual manner for a sexual purpose, without her consent. At the relevant time, the complainant, E.H., was a 16-year-old volunteer who worked in the unit from August 2016 until June 2017. The trial judge found that, on June 14, 2017, the Appellant hugged and kissed E.H. and touched her buttocks with both hands, in a sexual manner for a sexual purpose, without her consent. The trial judge concluded that the Appellant was in a position of trust or authority over both J.C. and E.H. and that the Appellant was in a relationship with J.C. and E.H. that was exploitative of them.
[3] The main focus of this trial was assessing credibility. The witnesses at trial included the two complainants and the Appellant. It should also be noted that the trials in relation to these complainants were heard together after the Crown made a cross-count similar fact application, which was conceded by the defence.
Analysis
The trial judge erred by relying on motive to fabricate to enhance credibility
[8] In closing submissions at trial, the Crown, while acknowledging that there was no obligation on the accused to establish a motive to fabricate, argued that neither of the complainants had a motive to fabricate in this case, given that they had a good relationship with the Appellant, and that this was a factor for the trial judge to consider. The defence did not address this issue at all in closing submissions.
[9] In her reasons for judgment, the trial judge stated as follows:
Although Ms. [C] was a somewhat tentative witness and appeared to be somewhat nervous when testifying, I found Ms. [C] to be a very credible and reliable witness. Her evidence was internally consistent and was not undermined by any material inconsistencies. The presence of prior inconsistent statements can be an important factor that may detract from the credibility of a witness. In this case the defence fairly conceded that there were no material prior inconsistent statements established in respect of Ms. [C]’s evidence and that her evidence was not undermined, changed, or shaken in cross-examination. While I recognize that an accused has no obligation to provide an explanation of why someone might allege that a sexual assault has occurred and that an accused need not establish a motive to fabricate – in this case there existed no motive to fabricate or any animosity that might undermine Ms. [C]’s credibility. She had a good working relationship with Mr. Taheri. Moreover her explanation that she was concerned that her supervisors might think she was not a good student was compelling and in my view undermined the suggestion that she fabricated the events.
…
Ms. [H] was an extremely articulate, intelligent and careful witness. Her evidence was detailed, straight-forward and candid. Her evidence was plausible and included a clear description of the date, time and place that the events occurred and of the events themselves. Her description included significant details about what was said and done by both herself and Mr. Taheri. It did not contain any illogical aspects or unexplained gaps. Like Ms. [C] I found Ms. [H] to be very credible and reliable. Like Ms. [C] her evidence was internally consistent and was not undermined by any material inconsistencies. As with Ms. [C]'s evidence the defence fairly conceded that there was no material prior inconsistent statements established in respect of her evidence and her evidence was not changed or shaken in cross-examination.
With respect to Ms. [H] there was no evidence of any animosity or a motive to fabricate. Previously she had a good relationship with Mr. Taheri.
[11] In R. v. Mirzadengan, 2019 ONCA 864, the Appellant argued that the trial judge improperly relied on the complainant’s supposed absence of motive to lie in support of her credibility. It should be noted that defence counsel provided a number of possible reasons why the complainant might have fabricated her evidence. The court concluded that the trial judge had not erred and stated:
[14] Third, and crucially, there is an important distinction between the respective trial judges’ treatment of the absence of motive to lie in Bartholomew and in this case. In Bartholomew, the trial judge erred by transforming “the absence of evidence of a motive to fabricate into a proven lack of motive” and then using this finding to “enhance the credibility of the complainant”; at paras. 19 and 28. In the present appeal, the trial judge stated at the outset that there was no apparent motive to fabricate. His finding was more tentative than that of the trial judge in Bartholomew. Moreover, his reasons make it clear that he did not make the impermissible leap between finding an absence of apparent motive and concluding the complainant must be telling the truth. Unlike the trial judge in Bartholomew, he did not use this finding to “enhance” his assessment of the complainant’s credibility. Although it supported his finding, the trial judge reasonably could have concluded that the complainant was credible on the first two factors alone – the corroborating testimony regarding her degree of intoxication and the ripped Halloween costume. This is particularly so given the trial judge’s strong rejection of the appellant’s testimony on these two issues...
[14] In R. v. Ignacio, 2021 ONCA 69, leave to appeal refused, [2021] S.C.C.A. No. 127, the defence took the position at trial that the complainant had a motive to fabricate because she feared that she had become pregnant from her sexual encounter with the accused and needed a way to explain the pregnancy to her parents in order to absolve herself of any responsibility….
….The court found that in responding to the defence submission that the complainant had a motive to fabricate, the trial judge had not made a finding of no motive to fabricate, but had simply determined that there was no evidence of a motive to fabricate. The court then found, as a matter of law, that the trial judge was entitled to consider the absence of evidence of motive to fabricate as a factor in assessing the credibility of the complainant….
In Ignacio, the issue of motive to fabricate was raised by the defence and, therefore, had to be addressed by the trial judge, whereas in this case, the issue was not raised by the defence. Consequently, in Ignacio, the court did not have to consider the risk of the onus being reversed in situations where the issue is not raised by the defence.
[15] In R. v. S.S.S., 2021 ONCA 552, 406 C.C.C. (3d) 314, the Court found that the trial judge erred in fact and law by finding that the complainant and her mother had a motive not to fabricate the allegations, and by using that finding to enhance the credibility of the complainant. The trial judge found that not only was there no evidence of motive to fabricate, but that it was contrary to the interests of the complainant and her mother to come forward. The trial judge used that finding, the fact that they did come forward contrary to their interests, as a “make-weight” to enhance the complainant’s credibility. The Court found this to be an error and stated in part as follows:
[28] In the second paragraph, i.e., 165, the trial judge discussed the law on motive to fabricate. She began by stating that the existence or absence of a motive to fabricate is a relevant factor to be considered. That is an accurate statement where there is a proved presence or absence of motive to fabricate: R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at para. 21.
[29] The trial judge then recognized the distinction between no motive to fabricate and no evidence of motive to fabricate, and that it is impermissible to move from an apparent lack of motive to fabricate to the conclusion that the complainant is telling the truth. She also confirmed that an accused need not prove that a Crown witness had a motive to fabricate. While these statements of the law are true, it is unclear how they were applied by the trial judge.
[30] First, the trial judge did not find a lack of evidence of motive to fabricate. Rather, she found that there was no motive to fabricate, which she used as a make-weight for the complainant’s credibility. Finding no motive to fabricate amounted to a factual error that was not available on the evidence...
[31] Second, there was no issue of onus because the appellant did not rely on motive to fabricate. Although defence counsel initially labelled his argument about the complainant’s tendency to tell her mother untrue stories as motive to fabricate, he withdrew that label. He was not arguing motive to fabricate. His argument was simply that the complainant had a history of telling untruths rather than a motive to tell untruths. Therefore, the question of whether or not the accused had proven motive to fabricate was not an issue before the trial judge.
The Court in S.S.S. found that Ignacio was distinguishable from this case on the factual finding, as Ignacio dealt with the use that a court can make of a finding of no evidence of a motive to fabricate, rather than a finding of no motive to fabricate. The Court also distinguished Ignacio on the basis that, in that case, the issue of motive to fabricate was raised by the defence, and therefore had to be addressed by the trial judge, whereas in this case, the issue was not raised by the defence….
[16] Finally, in R. v. B.T.D., 2022 ONCA 732,…
…The Court found that this level was reached in this case and stated in part:…
…Reasoning from the apparent absence of a motive to fabricate undermines the presumption of innocence by reversing the burden of proof and fails to recognize that motives to mislead can be hidden. See: R. v. Gerrard, 2022 SCC 13, 468 D.L.R. (4th) 389, at paras. 4-5, R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at para. 44; R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 22-23; R. v. S.H., 2020 ONCA 34, at para. 11; R. v. A.S., 2020 ONCA 229, at para. 59.
[83] In the present case, it was not argued nor did the trial judge find that there was a proven absence of a motive to fabricate on the part of the complainant. Rather, the trial judge appears to reference the lack of evidence of any apparent motive based on her observation that the complainant did not demonstrate “a hint of vengeance” toward the appellant in her testimony.
[18] While this court agrees that the reasons must be read as a whole, this court does not agree with the Crown’s interpretation of the reasons for judgment. Surely, where there is no ambiguity in the words used, the trial judge can be taken as meaning exactly what they say. It is the view of this court that the trial judge made significant and fatal errors on this topic of motive to fabricate:
a. The trial judge stated, “in this case there existed no motive to fabricate or any animosity that might undermine Ms. [C]’s credibility”. The trial judge does not refer to an absence of evidence of motive to fabricate – rather refers to no motive to fabricate. Contrary to the Crown’s submissions that the trial judge meant an absence of evidence of motive to fabricate, the trial judge found, and explicitly stated, that there was no motive to fabricate or any animosity as it related to J.C. This language appears purposely distinct from the language used in relation to E.H., wherein the trial judge referred to “no evidence of any animosity or a motive to fabricate.” There is no question that the trial judge made the impermissible leap between there not being any evidence of motive to fabricate, to a factual finding that there was no motive to fabricate.
b. The trial judge based this conclusion of no motive to fabricate on the fact that there was a good relationship between the Appellant and the complainant previously. While the possibility exists for the Crown to prove that a complainant had no motive to fabricate, the bar is set high. Evidence of a good relationship between the complainant and the accused, standing alone, is insufficient to establish that the complainant had no motive to fabricate. See Ignacio at para. 33, citing R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534 at para. 25; and R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412 at para. 45.
c. After brief reasons as to the credibility and reliability of J.C., the trial judge transformed the absence of evidence of a motive to fabricate into a proven lack of motive, and then used this finding to enhance the credibility of the complainant. While the determination of no motive to fabricate was not the only reason to find J.C. credible, it was certainly an ingredient in the credibility mix – a “make-weight” – otherwise it would not have been mentioned at all, especially given the brevity of the reasons on this critical issue.
e. In relation to E.H., the trial judge concluded that there was “no evidence of any animosity or a motive to fabricate” referring to the “good relationship” that previously existed between Mr. Taheri and the complainant. It is the view of this court that the trial judge placed undue weight on the apparent lack of evidence of animus to bolster the credibility of the complainant. This observation of the trial judge was made at a critical point in her analysis of credibility. There was no acknowledgment by the trial judge that the absence of a demonstrated motive to fabricate does not necessarily mean that there was no motive. While the absence of evidence of motive to fabricate can be noted and considered, it cannot drive the trial judge’s credibility findings to a conclusion that the complainant must be telling the truth. The trial judge clearly used this factor to enhance the complainant’s credibility and it was one of the key building blocks in her acceptance of the complainant’s evidence.
f. Further, as noted above in relation to J.C., the defence did not raise the motive to fabricate issue in any way in this trial. If the accused does not raise the issue, it is not open to the trial judge to find that there was no evidence of motive to fabricate and to use that finding, not disproved by the accused, as a “make-weight” in support of the complainant’s credibility. After brief reasons as to the credibility and reliability of E.H.., the trial judge did just that, again referring to the “good relationship” that the complainant had previously had with the Appellant as her reason for coming to this conclusion.
[19] While this court acknowledges that the trial judge cited other brief reasons for finding the complainants credible, there is no question that the absence of motive to fabricate, and finding of proven lack of motive, was used to enhance the assessment of the complainants’ credibility in a significant way, in a circumstance where the defence had not put forward this argument.
[20] It is the view of this court that, for this reason alone, the Appellant is entitled to a new trial. The Court of Appeal has stated that this is not a “trivial error”. This case was all about credibility. It is the view of this court that this error led to the Appellant’s conviction.
Conclusion
[37] It is this court’s view that the trial judge erred in relation to the analysis of motive to fabricate.
[38] For all of the foregoing reasons, the appeal is allowed, convictions quashed, and a new trial ordered.
