The Defence Toolkit – March 20, 2021

This week’s top three summaries: R v JM, 2021 ONCA 150: #judicial notice, R v A.I., 2021 BCSC 1781: #ghomeshi amendments, and R v Bird, 2021 SKCA 35: #dangerous offender.

R v JM, 2021 ONCA 150

[March 11, 2021] Judicial Notice - Personal Experience as Counsel [Reasons by David Brown with S.E. Pepall and K. van Rensburg JJ.A. concurring]

AUTHOR’S NOTE: Judges come to the bench with much experience under their belts. The question answered in this appeal is how much of that experience can they use in judgements and when they do it, how should they go about introducing it to the parties?  Some of the answers are similar to judges doing their own research. Notice to the parties and a request for submissions is likely the bare minimum. Second, their knowledge of outside matters are likely bound by the principles defining judicial notice.  If matters are not notorious or capable of immediate and accurate demonstration, then judges' personal experience must be left aside in their reasoning. Here the trial judge attempted to explain the passivity of the complainant in the face of sexual assault by his knowledge of the expert evidence in battered-spouse syndrome case: Lavallee. The case also provides an excellent summary of the principles of judicial notice.

Overview

[2] The main issue on this appeal concerns the trial judge’s use of judicial notice, including his personal experience as counsel, as part of his credibility assessment of the complainant.

Background

[5] The complainant and the appellant were second cousins. At the time of the incidents the complainant was 16 years old; the appellant was 20 years old.

[6] The complainant alleged that in November 2014 she went out with the appellant for bubble tea. He drove her to a parking lot next to a small building and asked her to get into the back seat. She did so, and he followed. According to the complainant, without warning and without saying anything, the appellant then raped her. The complainant testified that she resisted and screamed throughout.

[7] The December 2014 incident took place at the complainant’s house. According to the complainant, the appellant came over to her house and watched TV for a while with the complainant, her father, and some of her siblings. The complainant and appellant left and went into another room, where the appellant groped her. They then went upstairs to her bedroom, where he assaulted her by trying to have sexual intercourse. He was unsuccessful. The complainant testified that she was passive during the assault and the appellant had put a blanket in her mouth to muffle any screams.

[8] The appellant testified. He denied that either incident occurred. He acknowledged that he had been sexually intimate with the complainant on three occasions – two involving oral sex and one attempted intercourse – but on each occasion the sexual activity was consensual.

[10] The trial judge rejected the appellant’s denial of the incidents, concluded that it did not raise a reasonable doubt, and accepted the complainant’s evidence as credible and confirmed by the Snapchat conversation: at paras. 114-116. The trial judge found the appellant guilty on the single count of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46.

General Principles Regarding Judicial Notice

[28] Canadian law has adopted several rules concerning the admissibility of evidence and the use of proven facts when assessing the credibility of a complainant in a sexual assault prosecution. For example: rules relating to evidence of recent complaint have been abrogated (Criminal Code, s. 275); a complainant’s delay in disclosure, standing alone, can never give rise to an adverse inference against his or her credibility as there is no inviolable rule on how those who are the victims of trauma like a sexual assault will behave (R. v. D. (D), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65); evidence of sexual reputation is not admissible for the purpose of challenging or supporting the credibility of a complainant (Criminal Code, s. 277); and evidence that a complainant has engaged in sexual activity is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant is more likely to have consented to the sexual activity that forms the subject-matter of the charge or is less worthy of belief (Criminal Code, s. 276(1)).

[29] However, the use of judicial notice to dispense with the proof of facts in a sexual assault prosecution is not subject to any distinctive rules. The general principles regarding judicial notice apply.

The Substantive Dimension

[31]      The basic principles regarding the substantive dimension of judicial notice can be summarized as follows:

(i) Judicial notice is the only exception to the general rule that cases must be decided on the evidence presented by the parties in open court: David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020) (“Paciocco”), at p. 573;

(ii) Judicial notice involves the acceptance of a fact or state of affairs without proof: R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128, at para. 54; Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018) (“Sopinka”) at §19.16;

(iii) Facts judicially noticed are not proved by evidence under oath; nor are they tested by cross-examination: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48;

(iv) Since judicial notice dispenses with the need for proof of facts, the threshold for judicial notice is strict: Find, at para. 48; and

(v) Judicial notice applies to two kinds of facts: (a) those that are so notorious or “accepted”, either generally or within a particular community, as not to be the subject of dispute among reasonable persons (R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 71; Reference Re Alberta Statutes,1938 CanLII 1 (SCC), [1938] S.C.R. 100, at p. 128; Sopinka, at §19.18); and (b) those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy (Quebec (Attorney General) v. A., 2013 SCC 5, [2013] 1 S.C.R. 61, at para. 238; Sopinka, at §19.16). The sources may include both large bodies of scientific literature and jurisprudence: R. v. Paszczenko, 2010 ONCA 615, 103 O.R. (3d) 424, at paras. 65-66.

[32] However, as the editors of McWilliams helpfully point out, at §26.10, the jurisprudence discloses that the issue is somewhat more nuanced as the expression “judicial notice” captures several different forms of judicial notice:

(i) Tacit or informal judicial notice, which involves the trier of fact drawing on common experience, common sense or common knowledge to interpret and understand the formal evidence presented at trial;[2]

(ii) Express judicial notice, which concerns the notice of specific facts of the notorious and indisputable variety; and

(iii) Contextual judicial notice that strives, at a generalized level, to provide context, background or a frame of reference to assist the trier of a fact in making case-specific findings of fact: See, for example, Quebec (Attorney General), at para. 239; R. v. Le, 2019 SCC 34, 375 C.C.C. (3d) 431, at paras. 83-88. To this category of “social framework facts” others would add “legislative facts”, which do not so much involve taking notice of specific facts but concern the consideration of policy factors or facts relevant to judicial reasoning when the judge embarks upon the path of making or changing the law: Paciocco, at pp. 574 and 578. Whatever may be the breadth of proper judicial notice in this category, a court must refrain from taking judicial notice of social phenomena unless they are not the subject of reasonable dispute for the particular purpose for which they are to be used: Quebec (Attorney General), at para. 239.

[34] The first category of judicial notice cases – those in which judges employ tacit judicial knowledge – contains an internal tension. Canadian law recognizes that judges will have been shaped by, and have gained insight from, their different experiences and cannot be expected to divorce themselves from these experiences on the occasion of their appointment to the bench: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 38. Judges who decide factual matters necessarily are conversant “with a library of facts or information acquired through experience, education, reading, etc.”: McWilliams, at §26:20.10. However, this fund of general knowledge is different from reliance on personal knowledge in a particular case: Sopinka, at §19.47; McWilliams, at §26:20.10.  While it may prove difficult in some cases to know where to draw the dividing line, the general view is that unless the criteria of notoriety or immediate demonstrability are present, a judge cannot take judicial notice of a fact within his or her personal knowledge, even if it has been proved before the judge in a previous case: Sopinka, at §19.46.

[35] Finally, matters of which judicial notice may be taken and those that require expert evidence are not compatible. Matters that are the proper subject of expert evidence are, by definition, neither notorious nor capable of immediate and accurate demonstration: McWilliams, at §26:10; Paciocco, at p. 579.

The Procedural Dimension

[38] Where a judge, on his or her own initiative, wishes to take judicial notice of a fact or state of affairs that bears on a key issue in a proceeding, the adversarial process requires that the court ensure that the parties are given an opportunity to deal with the new information by making further submissions, oral or written, and allowing, if requested, fresh material in response: Paciocco, at p. 582.

The Trial Judge's Use of His Personal Experience as Counsel

[39] Crown counsel’s closing submissions spanned two days. At the end of the first day, Crown counsel argued that the defence submission that the complainant’s continued association with the appellant after the first alleged assault weighed against her credibility was a “very standard rape myth.” At that point, Crown counsel handed up the decision in A.R.J.D. (AB) and took the trial judge through several passages.

[40] The trial judge read the decision overnight. On resuming the following day, he stated that the decision was “a fascinating case” and questioned Crown counsel about it: ...

...In another life, I was a criminal lawyer and argued law of sexual assault cases in the Court of Appeal. And in many of those cases, they were interfamilial sort of situations, like this one is, in a way. Maybe not as strongly as some, but it was not unusual that there would be a feature like the one in this case, the non-avoidance ... Nonetheless, it was a common feature, not in all of them, but in many of them. For example, in the M.T. case, which is in your 276 case book.

MS. HACKETT: Yes.

THE COURT: I looked at the factum for that one, ...

THE COURT: So, she asked to go over there. W.D. itself, as well, ... So, those are just two examples, but many more examples from the jurisprudence. So, the question is for you, can I rely on my experience in, as a lawyer in this field and, or is it impermissible to do that?

So, sort of a long-winded question, but, as I said, more throwing it out there for any submissions on it. Can I rely on my experience? And we’re talking about, I think, we’re not talking about bolstering the complainant’s credibility. We’re just talking about understanding what might be argued and has been argued here to be something against her credibility, that hits against her credibility. So, it’s neutralizing that, as opposed to enhancing her credibility. So, that’s sort of what’s on my mind here a little bit. I’m not sure there’s much you can really say about it, but I have to look if I can rely on my experience in these sorts of situations from when I was a lawyer. [Author Edited Quote for Length. Emphasis added.]

[41] The trial judge had acted as counsel for the appellants in both W.(D.) and M.T, 2012 ONCA 511, 289 C.C.C. (3d) 115.

[43] During the balance of the trial, the trial judge did not ask defence counsel for submissions on whether he could draw on his experience as counsel in sexual assault cases.

[44] As noted earlier, in his reasons the trial judge wrote that he would “fine tune” comments made by the majority in A.R.J.D. (AB) in two respects. The first he explained at para. 59:

I would go one step further than the judgment with respect to the association evidence. In many years of appearing before the Ontario Court of Appeal as counsel for accused convicted of interfamilial sexual crimes, I can say that instances in which a complainant fails to distance her or himself from the abuser are not unusual. In fact, as a study of the evidence in appellate cases would I am sure bear out, such cases are commonplace. I am confident that trial and appellate judges, and counsel who deal with these cases, would agree. Despite such strong after-the-fact evidence of association, juries have been known to convict in these circumstances. [Emphasis added.]

[45] The trial judge believed that he could place some reliance on his prior empirical experience because “[i]t is the same as a judge relying on their judicial experience”: at para. 61.[4]

Analysis

[48] No judge comes to the bench a tabula rasa. We all bring varied experiences that, one hopes, assist us in fairly adjudicating the variety of legal disputes presented by the parties who appear before us. Invariably we examine, in some fashion, the legal disputes before us through the lens of that prior general experience.

[49] But here the appellant does not complain about the trial judge using his general prior experience. The appellant complains that the trial judge impermissibly drew upon his personal experience as counsel in specific types of cases to assist him in deciding a key issue in the present case: the credibility of the complainant.

[51] The adversarial system imposes a necessary restraint on that which a trial judge can take into account when deciding contested issues, including the credibility of a party. The only facts a trier of fact may consider in making his or her decision in a case is the evidence adduced in the courtroom. Facts that satisfy the criteria for judicial notice are the only exception to that rule: Paciocco, at p. 573; Justice David Watt, Watt’s Manual of Criminal Evidence 2020 (Toronto: Thomson Reuters, 2020) at §14.01. As this court cautioned in R. v. Potts(1982), 1982 CanLII 1751 (ON CA), 36 O.R. (2d) 195 (C.A.), at p. 204, leave to appeal refused, [1982] S.C.C.A. No. 301, “a trial court is not justified in acting on its own personal knowledge of or familiarity with a particular matter, alone and without more.” Accordingly, unless the criteria of notoriety or immediate demonstrability are present, a judge cannot judicially notice a fact within his or her personal knowledge: Sopinka, at §19.46.

[53] But the trial judge’s reasons disclose that he went much further than reflecting on two reported cases in which he had acted as counsel. By the time of his reasons, the trial judge had drawn on his personal experience as counsel to conclude that in cases of interfamilial sexual crimes, instances in which a complainant fails to distance her or himself from the abuser are not unusual but “commonplace,” a conclusion approximating a form of generalization.

[54] I am persuaded by the appellant’s submission that for the trial judge to accept, without a proper evidentiary foundation and in reliance on his personal experience, that the complainant’s conduct in continuing to associate with the appellant reflected “commonplace” conduct by complainants in sexual assault cases amounted to “sidestepping” the test for judicial notice. Whether a witness is credible is a question of fact: A.R.J.D. (AB), at para. 28; R. v. R.G.B., 2012 MBCA 5, 100 W.C.B. (2d) 630, at para. 59. The trial judge’s conclusion was based on his personal experience rather than an assessment of either criterion for taking judicial notice of facts: notoriety or immediate demonstrability.

[55] As well, the process that led him to that conclusion lacked transparency. Apart from his mention of two reported cases that had been filed with the court, the trial judge did not disclose to the parties what other personal experience he was drawing upon to make the generalization that he did. The parties were left in the dark about the content and scope of the trial judge’s personal experience that formed the basis for an element of his assessment of the complainant’s credibility, and they had no opportunity to respond to the information that drove the judge’s decision on this point.

[57] Accordingly, I conclude that, in the circumstances of this case, the trial judge erred in drawing on his personal experience as counsel to conclude that in cases of interfamilial sexual crimes instances in which a complainant fails to distance her or himself from the abuser are not unusual but “commonplace.” He overstepped the proper boundaries of taking judicial notice – even tacit judicial notice – of a fact that informed his assessment of the credibility of the complainant.

[58] I will assess the impact of that error after considering the appellant’s second ground of appeal.

Ground II: The Trial Judge's Assessment of the Complainant's Passivity

[59] During his examination of the complainant’s evidence about her continued association with the appellant after the first assault, the trial judge remarked on comments made by the police officer who conducted the Criminal Code s. 715.1 interview of the complainant. The trial judge observed that the officer “made it plain that he did not believe her because of her admitted acquiescence and lack of resistance in the second incident of sexual assault”: at para. 79 The trial judge was highly critical of the officer’s interview of the complainant.

[60] The trial judge then continued, at paras. 80-82:

Examining the complainant’s emotional state, there are more than a few parallels with the psychology of battered wife syndromeexplained by Justice Bertha Wilson in R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852. There was reference there to the administration of a shock which leads to a motivational state of “learned helplessness.” In the interfamilial context, a phenomenon may occur known as “traumatic bonding” between a dominant person and a subjugated individual such as a child. In Lavallee, the process of “traumatic bonding” as explained by expert evidence, was adopted by the court at para. 60:

The less powerful person in the relationship — whether battered woman, hostage, abused child, cult follower, or prisoner — becomes extremely dependent upon, and may even come to identify with, the more powerful person. In many cases, the result of such dependency and identification is that the less powerful, subjugated persons become “more negative in their self-appraisal, more incapable of fending for themselves, and thus more in need of the high power person.” As this “cycle of dependency and lowered self-esteem” is repeated over time, the less powerful person develops a “strong affective bond” [traumatic bonding] to the more powerful person in the abusive relationship.

It is this psychology which helps to explain the complainant’s quite extraordinary evidence with respect to her helplessness and paralysis during the second sexual assault. Her testimony that she just wanted to give the accused what he wanted and the admission of kissing him back once, together with a several month delay in disclosing the assault, is suggestive of a process similar to that in Lavallee referred to as “traumatic bonding.”

The complainant’s passivity at the time of the attempted rape is also explained by more recent social science research in the area: see Francine Russo, Sexual Assault May Trigger Involuntary Paralysis (August 4 2017), online: Scientific American, <www.scientificamerican.com/article/sexual-assault-may-trigger-involuntary-paralysis>. [Emphasis added]

Analysis

[63] The trial judge’s use in his reasons of the Lavallee decision and the Scientific American article was marked by several errors.

Use of Lavallee

[64] First, no party submitted that as part of his credibility assessment of the complainant the trial judge should draw a parallel between the complainant’s conduct and the battered woman syndrome which had been the subject of expert psychiatric evidence in Lavallee. It was an error for the trial judge to raise that issue without affording the parties an opportunity to address and respond to it during the trial. The comments made by this court in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 69, in the context of a sentencing hearing apply with equal force to the liability stage of a criminal trial:

Judges must be very careful before introducing issues into the sentencing proceeding. Where an issue may or may not be germane to the determination of the appropriate sentence, the trial judge should not inject that issue into the proceedings without first determining from counsel their positions as to the relevance of that issue. If counsel takes the position that the issue is relevant, then it should be left to counsel to produce whatever evidence or material he or she deems appropriate, although the trial judge may certainly make counsel aware of materials known to the trial judge which are germane to the issue. If counsel takes the position that the issue raised by the trial judge is not relevant on sentencing, it will be a rare case where the trial judge will pursue that issue.

[65] The Crown submits that the trial judge’s comments about battered woman syndrome were directly responsive to defence counsel’s submission that the complainant’s passivity during the second assault raised a reasonable doubt about lack of consent. I would note that at trial Crown counsel did not respond to the defence’s closing by drawing parallels with the syndrome. If the trial judge thought there might be a parallel, he was obliged to raise the issue with counsel before the trial concluded and afford counsel an opportunity to respond. His failure to do so was an error.

[66] Second, since expert evidence is, by definition, neither notorious nor capable of immediate and accurate demonstration, judicial notice does not extend to an area that requires expert evidence: McWilliams, at §26:10. Yet, the trial judge, in effect, took judicial notice of expert evidence adduced in the Lavallee case and applied it to explain the conduct of the complainant in the present case.  Such use of the Lavallee decision constituted an improper use of judicial notice.

[67] In Lavallee the accused had pleaded self-defence to the charge that she had murdered her common law partner. The accused adduced expert psychiatric evidence to assist the jury in understanding two elements of her defence: her reasonable apprehension of death; and the lack of possibility to otherwise preserve herself from death. In addressing that second element, the psychiatrist attempted to explain why the accused had remained with her violent partner. It was in that context that the psychiatrist testified about the condition of “learned helplessness,” which Wilson J., writing for the majority, noted was related in the psychological literature to the concept of “traumatic bonding”: at p. 886.

[68] In the present case, the trial judge drew on that part of the Lavallee decision to fashion an explanation for “the complainant’s quite extraordinary evidence with respect to her helplessness and paralysis during the second sexual assault”: at para. 81. The trial judge did so in the absence of any evidence from an expert who had examined the complainant and could provide an opinion explaining the complainant’s passivity at times during the second assault. Nor was there any expert evidence regarding the permissibility of using psychiatric evidence from a case about the conduct of a battered woman to explain the conduct of a person in the complainant’s circumstances.

[69] The trial judge also did not provide counsel with any notice of his intention to use the evidence referred to in Lavallee in the present case. That was improper and unfair. As the Supreme Court stated in R. v. Sappier; R. v. Gray, 2006 SCC 54, [2006] 2 S.C.R. 686, at para. 71: “[I]t is generally wise not to incorporate evidence submitted in other cases without disclosing it to the parties and allowing them the possibility of challenging it or presenting contrary evidence.”

Use of the Scientific American article

[70] The final error was specific to the trial judge’s use in his reasons of an article that appeared in the August 4, 2017 edition of Scientific American. The trial judge used the information in the article as evidence that the complainant’s passivity at the time of the attempted rape was explained by more recent social science research in the area.

[72] The parties did not provide the trial judge with the article; his inclusion of a reference to the article in his reasons was the result of his own research. The trial judge did not invite the parties to make submissions about the article; they first discovered that the trial judge considered the article upon reading his reasons.

[73] The Crown concedes that it was an error for the trial judge to refer to the Scientific American article without canvassing counsel. That was a proper concession for the Crown to make. In my view, the trial judge’s use of the article in his reasons as part of his assessment of the complainant’s credibility amounted to an error for two reasons.

[74] First, its use compromised the integrity and fairness of the trial process. By relying on a popular scientific publication that was not put into evidence or referred at the hearing, the trial judge breached the rules of natural justice. He used social science information obtained after the hearing without disclosing it to the parties and giving them an opportunity to meet it: Hearn v. McLeod Estate, 2019 ONCA 682, 439 D.L.R. (4th) 217, at para. 28; R. v. Désaulniers (1994), 1994 CanLII 5909 (QC CA), 93 C.C.C. (3d) 371 (QC CA), at p. 377, leave to appeal refused, [1995] 1 S.C.R. vii. As was put by Goldstein J. in R. v. Ghaleenovee, 2015 ONSC 1707, 19 C.R. (7th) 154, at para. 21:

Checking indisputable facts [on the internet] is one thing.  Conducting an investigation and drawing inferences – especially without giving the parties an opportunity to respond – is another.

[75] Second, it constituted an improper use of judicial notice. In R. v. Hernandez-Lopez, 2020 BCCA 12, 384 C.C.C. (3d) 119, leave to appeal to S.C.C. refused, 39090 (July 9, 2020), the British Columbia Court of Appeal saw no error in a trial judge using the parts of an academic article on the evidence of children that merely outlined generally understood and common features of the evidence of children, already reflected in judicial commentary and practice. The concepts described in the article did not lie outside the general knowledge that judges are required to apply in assessing the evidence of witnesses: at paras. 17-22.

[76] The court in Hernandez-Lopez went on to note that the trial judge did not rely on the article to furnish critical evidence or as an instruction manual for assessing the evidence of children: at paras. 14 and 21. However, that is how the trial judge in the present case used the Scientific American article. His reasons disclose that he relied on the article as a source of expert evidence that was not properly before the court to assess the veracity of the complainant. It was an error for him to do so; he exceeded the proper limits of judicial notice.

Impact of the Errors

[80] After next reviewing some of the specifics of the complainant’s testimony, the trial judge examined her emotional state. It was at this point that he drew the parallel with the battered woman syndrome considered in the Lavallee decision. After quoting from Lavallee, he continued, at para. 81, by stating that: “It is this psychology which helps to explain the complainant’s quite extraordinary evidence with respect to her helplessness and paralysis during the second sexual assault.” [Emphasis added.] The trial judge then immediately referred to the Scientific American article, as support for his further conclusion that “the complainant’s passivity at the time of the attempted rape is also explained by more recent social science research in the area”: at para. 82. [Emphasis added.] Shortly thereafter, at para. 84, the trial judge concluded that “the evidence of after-the-fact association with the accused does not detract from the complainant’s credibility.”

[81] Accordingly, the trial judge’s reasons disclose that his errors did not relate to a peripheral issue. Instead, his erroneous use of his previous experience as counsel, the Lavallee decision, and the Scientific American article played important roles in his reasoning process regarding the complainant’s credibility, which was a key issue at the trial.

[83] Arguably the trial judge’s use of his prior experience standing alone could attract the application of the proviso. However, taken together with his other errors, I am unable to conclude that this is a case where the errors were harmless and had no impact on the verdict: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 26. An error in taking judicial notice is a legal error and may be enough, on its own, to require an appeal to be allowed: Paciocco, at p. 577. As I concluded above, the trial judge’s erroneous use of judicial notice played an important role in his reasoning process regarding the complainant’s credibility.

[85] Finally, the trial judge’s resort to judicial notice without giving the appellant an opportunity to make submissions on the issue was procedurally unfair. It violated the procedural requirements of judicial notice. As a result, it denied the appellant a fair trial. In that circumstance, the curative proviso does not apply: Khan, at para. 27.

[86] For the reasons set out above, I would allow the appeal, set aside the appellant’s conviction, and direct a new trial on the single count of sexual assault.

R v A.I., 2020 BCSC 1791

[September 17, 2020 - Pub Ban Removed 2021] Participatory Rights of the Complainant in the New 276 Regime [Justice Shergill]

AUTHOR’S NOTE: Two full years after the Ghomeshi amendments to the Criminal Code and a Court of Appeal has still yet to pronounce on the rules that govern the new procedures introduced due to public reaction to a high profile acquittal caused by surprise confrontation with complainants' own written words which had been communicated to the accused. One thing is certain, the delay caused by the new procedures is immense and any Court of Appeal decision should grapple with that factor as it undermines the new approach to delay for sexual assault cases. 

Herein, Justice Shergill was forced to limit a complainant's ability to attack the foundation for the 276 hearing (they claimed an affidavit from an accused is a required pre-requisite to having a s.276 hearing).  In a persuasive review of the law Justice Shergill sets out that an affidavit from the accused is not required, moreover, since a complainant only has participatory standing at the Stage 2 proceedings, he/she cannot complain about things that are relevant to the Stage 1 process only.  

Overview

[1] The accused is charged with the sexual assault of the complainant, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46 [Code]. The alleged conduct that gives rise to the charge is non-consensual intercourse on May 24, 2013. The matter is set to be tried before a jury, commencing on October 26, 2020.

[2] This application is brought under ss. 276(2) and 278.92(2)(a) of the Code. In the application, the accused seeks an order permitting him to cross-examine the complainant at trial with respect to:

a) incidents of sexual activity between the two of them that do not form the subject-matter of the charge (“Part A Evidence”); and

b) evidence and communications about the complainant’s pregnancy (“Part B Evidence”).

Legal Framework

[7] The two-stage procedure for such applications is governed by the Code at: s. 278.93 which requires a threshold inquiry (“Stage 1”); and s. 278.94 which requires an admissibility hearing (“Stage 2”). The process is mandatory and cannot be waived: R. v. Barton, 2019 SCC 33 at para. 68. Pursuant to ss. 278.93(3) and 278.94(1), the jury and the public must be excluded from both stages of this procedure.

[8] Section 278.93 involves a threshold inquiry at Stage 1, which is to determine whether a Stage 2 hearing should be held under section 278.94. In order to pass the threshold inquiry, the judge must be satisfied of the following:

a) that the application is made in accordance with s. 278.93(2) such that it is in writing, sets out detailed particulars of the evidence that the accused wishes to adduce, and explains the relevance of that evidence to an issue at trial;

b) a copy of the application was given to the prosecutor and the clerk of the court at least seven days prior, or any shorter interval as allowed in the interests of justice; and

c) that the evidence sought to be adduced is capable of being admissible under s. 276(2).

[9] After hearing the submissions of counsel, I was satisfied that the threshold established by section 278.93 had been met for holding an admissibility hearing under section 278.94. Section 278.94 entitles the accused to an evidentiary hearing to establish that the evidence sought to be adduced meets the test for admissibility as set out in s. 276(2) or s. 278.92(2). The complainant is granted standing to make submissions at the Stage 2 hearing, but is not a compellable witness: s. 278.94(2).

Background

[17] By way of background, the complainant and the accused were involved in a romantic relationship that started in March 2013. They cohabitated between January 2014 to September 2016. The complainant says that the relationship ended in September 2016, whereas the accused says that the parties continued a sexual relationship until July 6, 2017.

[18] On July 6, 2017, the complainant first made a report to the police regarding the accused’s conduct. As a result, the accused was charged with assault contrary to section 266 of the Code. The assault charge was stayed by the Crown on September 6, 2018.

[19] On June 7, 2018, the complainant sent an email to the police (the “June 7 Statement”), in which she made five allegations of sexual assault against the accused, purported to have occurred between May 24, 2013 and November 29, 2016. The first three incidents were alleged to have occurred within the first six months of their relationship; the fourth while the parties were living together; and the fifth after the parties had already broken up.

[20] On June 13, 2018, the complainant was interviewed by the police. She repeated the five allegations of sexual assault (the “June 13 Statement”). During her interview, the complainant also alleged that she had become pregnant as a result of the fifth incident, but that she miscarried in the spring of 2017.

[The accused sought to introduce evidence of electronic communication of the complainant discussing her alleged pregnancy and the sexual allegations with the accused and others]

Scope of Complainant’s Right of Participation at the Stage 2 Hearing

[61] The Crown did not raise the argument about the deficiency of the accused’s application at either the Stage 1 or Stage 2 inquiry. Rather, it is an argument raised only by the complainant during the Stage 2 hearing.

[62] According to the complainant, the authorities require the accused to make “positive assertions of a defence, and evidence to link the other sexual history evidence to a defence connected to the subject matter of the charge…” (Complainant’s Brief at para. 66). The failure of the accused to do so means that the court lacks the necessary tools “to engage in a meaningful application of the s. 276 framework and a meaningful consideration of the significance of the proposed evidence. Consequently, the complainant submits that the application must fail” (Complainant’s Brief at para. 67).

[63] Defence counsel submits that the complainant has overstepped her permissible role at this hearing. The argument about the deficiency in the defendant’s affidavit material is one that only the Crown should be entitled to make. It is submitted that as a matter of policy and law, the complainant should only be permitted to make arguments on substantive matters that directly affect the complainant, such as the considerations stipulated under s. 276(2) or s. 278.92(2). The Crown counsel did not take any position on the issue.

[65] In determining this issue, it is important to first understand the distinction between a Stage 1 and Stage 2 hearing. As discussed earlier, a hearing under section 278.93 is the first stage of a two-stage proceeding related to the admissibility of evidence under sections 276(2) or 278.92(2). Whereas s. 278.94(2) explicitly provides for the participation of the complainant in a Stage 2 hearing, no such provision is made at a Stage 1 inquiry.

[68] As I have noted, there is no dispute that the complainant does not have standing at a Stage 1 hearing. The question therefore arises, as to whether the issue of deficiency of the applicant’s material falls under a Stage 1 or Stage 2 inquiry. If it is part of the Stage 2 inquiry, is this an issue that can properly be raised by the complainant?

[70] In R. v. A.C., 2019 ONSC 4270, one of the issues before the Court was what parameters should be placed on the complainant’s involvement at a Stage 2 hearing.  Justice Sutherland noted at para. 68 that the role has to be a meaningful one, which includes the ability to cross examine and lead evidence at the hearing. Justice Sutherland went on to say as follows at paras. 69 and 71:

[69] However, the ability to “attend and make submissions” is a limited one.  It is for the sole and limited purpose of determining the admissibility of proposed evidence at the trial proper based on the statutory framework and goals.  It is not to attend and make submissions at the trial proper.  It is not to have standing at the trial.  It is strictly limited to the issue of the admissibility of the proposed evidence at the trial and the opportunity to convey the perspective of the complainant to assist the court in its decision-making as to whether the proposed evidence should be admitted, such that it does not perpetuate the twin myths and offend the factors described in s. 276 of the Criminal Code.

[71] It is important to note that A.C. does not recognize an unfettered right of participation of the complainant at a s. 278.94 hearing. Rather, the complainant’s participation is restricted by the admissibility criteria set out in ss. 276(2) or 278.92(2).

[75] In my view, the deficiency objection raised here by the complainant goes far beyond the “focused and limited” role of the complainant contemplated by s. 278.94.

[76] The complainant submits that the accused’s application is deficient because he has failed to set out in his affidavit: his defence; his version of events regarding the subject-matter of the charge; and the evidence he seeks to admit. The complainant argues that courts have refused to admit evidence of other sexual history where the applicant has failed to provide affidavit evidence setting out his defence and his version of events that form the subject-matter of the charge. The complainant asks this Court to dismiss the accused’s application because the absence of such evidence from the accused means that the accused is unable to meet his burden to show relevance of the sexual history evidence to an issue at trial.

[77] It is open to the complainant to argue at a Stage 2 inquiry that the accused has failed to establish relevance of the proposed evidence to an issue at trial. Relevance is identified under s. 276(2) and s. 278.92(2) as part of the criteria for admissibility. However, it is not within the scope of the role of the complainant to seek to have the application dismissed on the grounds that the accused has failed to provide affidavit evidence asserting a positive defence or providing his version of events. I consider this an argument that is properly advanced by the Crown at a Stage 1 inquiry.

[78] In R. v. A.M., 2020 ONSC 4541, the Court noted the importance of balancing the Charter rights of the accused with the complainant’s rights to privacy, security, dignity, and equality: para. 103. In my view, Parliament sought to achieve such a balance by permitting the complainant to participate only at the Stage 2 inquiry process. Allowing a complainant to raise arguments at a Stage 2 hearing, that are reserved for the Crown at a Stage 1 hearing, would undermine this purpose and blur the distinction made by Parliament between the broad prosecutorial role of the Crown versus the limited role of the complainant in a Stage 2 inquiry.

[79] I conclude that the objection raised by the complainant as to the sufficiency of the applicant’s materials goes beyond the scope of the s. 276(2) or s. 278.92(2) inquiry, and as such, the complainant does not have standing to raise it.

Sufficiency of the Evidence

[80] Even if I were to conclude that the complainant was entitled to argue that the defendant has failed to meet the evidentiary burden under s. 276(2) or s. 278.92(2) by not providing an affidavit that advances a defence of honest but mistaken belief, or consent, I conclude that this argument is without merit.

[84] While I accept that counsel did not place before me any cases where the court had admitted sexual history evidence in the absence of an affidavit from the accused asserting a positive defence, this does not mean that such cases do not exist. Indeed, in R. v. Edgar, 2020 BCSC 381, Justice Schultes did the very thing that complainant’s counsel asserts has never been done.

[85] In Edgar, it was the position of the Crown that “when considering the relevance of the evidence for the purposes of s. 276, the focus must be on the specific defence that the accused is putting forward” (para. 26). Crown counsel in Edgar relied on the following passage from R. v. Goldfinch, 2019 SCC 38, at para. 95:

[T]he accused must demonstrate that the evidence goes to a legitimate aspect of his defence and is integral to his ability to make full answer and defence. This requires that the accused be able to identify specific facts or issues relating to his defence that can be properly understood and resolved by the trier of fact only if reference is made to the sexual activity evidence in question.

[43] It is important to keep in mind that the most fundamental of all defences is to assert that the Crown has not proven its case beyond a reasonable doubt. I do not understand the defence to have yet committed itself to any additional defences beyond that. Mr. Edgar is not required to have a specific theory in addition to taking that fundamental position, which has the virtue of not requiring any defence evidence in order to have the potential to succeed.

[44] What the passage from Goldfinch that is being relied on by the Crown means, in my opinion, is that the defence cannot simply seek to elicit evidence of prior sexual activity at large – there needs to be a demonstrated connection between the probative value of the evidence and the defence that will be advanced. It does not mean that such evidence can only be elicited when the accused is presenting a positive defence, as opposed to simply attacking the sufficiency of the Crown’s proof, as in this case.

[45] In furtherance of such an attack, evidence that is capable of undermining a critical element of how the complainant says that the offence was committed, in this case that the accused ejaculated, could be vital to undermining the credibility and reliability of that account, and may in itself raise a reasonable doubt.

[88] I do not read any of the authorities relied on by the complainant as standing for the proposition that the accused can only succeed on an application under s. 276 or s. 278.92 on the strength of an affidavit asserting a positive defence. Rather, the key concern raised by the courts is whether the accused is able to meet his burden of establishing admissibility of the evidence he proposes to call: see Darrach at para. 51. I accept that, in most cases, the “absence of an affidavit may well impair an accused in surmounting the presumption of inadmissibility”: T.A.H. at para 37. However, this is not a hard and fast rule. Each case must be determined on its own unique set of facts.

[89] In my view, requiring the accused to provide an affidavit asserting a positive defence in every instance of a s. 276(2) or s. 278.92(2) application would be akin to mandating that an accused must always call a defence in a sexual assault trial. The fact that the accused may choose to challenge the prosecutions case, without calling a defence, is well established: see Darrach at paras. 50–52; and Edgar at paras. 43–45.

[91] I conclude that the failure of the accused to provide an affidavit positively asserting a defence is not a bar to my ability to admit evidence under s. 276(2) or s. 278.92(2).

Twin Myths

[94] The complainant submits that the proposed evidence engages the “twin myths” prohibited by s. 276, in that it invites the trier of fact to infer that the complainant is more likely to have consented to sexual activity with the accused, or that she is less worthy of belief by reason of the sexual nature of the activity.

[95] I disagree. It is not the position of the accused that the complainant is less worthy of belief or more likely to have consented because she engaged in consensual sexual activity with the accused on other occasions, but rather, that she is less credible because her description of the relationship has changed dramatically over time.

[96] I conclude that the proposed evidence does not engage either of the twin myth inferences.

Relevance to Trial

[100] In R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at p. 609, the Court held that the Code should be interpreted to allow for the admissibility of logically probative evidence:

It is fundamental to our system of justice that the rules of evidence should permit the judge and jury to get at the truth and properly determine the issues. This goal is reflected in the basic tenet of relevance which underlies all our rules of evidence: see Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, and R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670. In general, nothing is to be received which is not logically probative of some matter requiring to be proved and everything which is probative should be received, unless its exclusion can be justified on some other ground. A law which prevents the trier of fact from getting at the truth by excluding relevant evidence in the absence of a clear ground of policy or law justifying the exclusion runs afoul of our fundamental conceptions of justice and what constitutes a fair trial.

[Emphasis added]

[101] The following authorities illustrate the point that s. 276 was never intended to exclude evidence that is capable of contradicting material aspects of the Crown’s case: Crosby; R. v. Harris, (1997) 1997 CanLII 6317 (ON CA), 118 C.C.C. (3d) 498 (Ont. C.A.); and R. v. R.V., 2019 SCC 41.  As noted by Justice Schultes in Edgar at para. 20, “[t]he common thread in these cases is that the sexual content of the evidence was secondary to its contradictory value in relation to the complainant’s version of events.”

[102] It is well established that material inconsistencies are relevant to the complainant's credibility. Where inconsistent statements by the complainant undermine the credibility of the Crown's evidence, the interests of justice favor admissibility: Crosby at para. 12. The Court held in Crosby at para. 12 that given that the central issue at trial was credibility, an inconsistency on a material and pertinent issue was highly relevant.

[103] In R. v. Buzzard, 2002 BCCA 1, at para. 35, the Court of Appeal overturned a conviction for sexual assault on the basis that evidence excluded under s. 276 went to the credibility of the complainant, which was the central issue in the case.

[104] As in Crosby and Buzzard, the central issue in this case is credibility.

[The Justice then goes through the evidence in detail and determines which portions are admissible.]

Conclusion

[153] I am satisfied that the conditions for admissibility of the evidence noted at paragraph 157, have been satisfied such that the evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[154] The admissible evidence reveals inconsistencies which have significant probative value, both individually and collectively. At best, they demonstrate material inconsistencies and, at worst, a propensity to lie, including under oath. Indeed, there would be prejudice to the proper administration of justice if the application to cross-examine, on what I deem to be admissible evidence, was not granted as it would prevent the accused from advancing a full answer and defence.

[156] In order to minimize any possible prejudice to the fairness of the trial, however, the admission of this evidence should, of course, be accompanied by a clear warning to the jury that the only significance of this evidence is in relation to the effect of the inconsistent statements on the complainant's credibility. The jury must not infer from the unrelated sexual act that the complainant was therefore more likely to have consented to the sexual activity that forms the subject-matter of the charge, or that she is therefore less worthy of belief.

[158] To ensure that the cross-examination of the complainant on evidence deemed admissible does not go beyond the scope of this ruling, the accused is to provide this Court with a list of questions prior to the commencement of the trial.

R v Bird, 2021 SKCA 35

[March 9, 2021] Dangerous Offender Proceedings: Test [Reasons by Ottenbreit J.A. with Barrington-Foote and Tholl JJ.A. concurring.]

AUTHOR’S NOTE: Often, Dangerous Offender proceedings are the last stage in a criminal career that spans several significantly violent offences. Since 2008 there have been several changes to the procedures involved including an onus shift and reversal. This case provides a good overview of the law now as well as good result for an accused. 

Introduction and Background

[1] Linden David Jesse Bird appeals the decision of the sentencing judge dated July 5, 2017, declaring him a dangerous offender under ss. 753(1)(a)(i) and (ii) of the Criminal Code (as it then was). For the reasons hereinafter set forth, the appeal is allowed.

[2] In February 2015, Mr. Bird was convicted after trial of sexual assault contrary to s. 271 of the Criminal Code. Following the conviction, the Crown applied to have Mr. Bird designated a dangerous offender under Part XXIV of the Criminal Code.

Decision of the Sentencing Judge

[8] The re-hearing proceeded before the same sentencing judge. No new evidence was presented. Counsels’ submissions were limited to the issue of whether the patterns of behaviour had been established and the legal error identified in the Appeal Decision. No submissions were made on the determinate sentence, nor was any issue taken with it. After reserving his decision, the sentencing judge gave oral reasons finding Mr. Bird to be a dangerous offender on July 5, 2017 [Second Designation Decision].

[12] In December of 2017, the Supreme Court of Canada issued its decision in R v Boutilier, 2017 SCC 64, [2017] 2 SCR 936[Boutilier]. Boutilier expressly overruled Szostak, holding that a sentencing judge must consider treatability and intractability at the designation stage of a dangerous offender hearing and that the failure to do so was an error of law.

Analysis

A. Did the sentencing judge err in failing to consider Mr. Bird’s treatability and manageability as part of the designation stage?

… Of course, Section 753(4.1) of the Criminal Code requires that I impose an indeterminate sentence unless I find there is a reasonable expectation that a lesser sentence will adequately protect the public against Mr. Bird committing a murder or a serious personal injury offence. In this -- in my sentencing decision at paragraphs 33 through 38, I concluded for the reasons stated that there is a reasonable likelihood of eventual control in the community. Given this finding, I conclude that a determinate sentence of five years plus credit of 33 months for -- of time served, leaving a sentence of 27 months from March 14th, 2016 is the appropriate sentence to impose, and that sentence is now confirmed.

[16] There is no merit to this submission. The absence of an erroneous self‑instruction regarding treatability and manageability at the designation stage in the Second Designation Decision is not determinative. It is clear that, in his deliberations, the sentencing judge focused on the error identified by this Court in the Appeal Decision. However, it may be inferred that, in respect of other aspects of the designation consideration, he was content to rely on his previous analysis in the First Designation Decision, which did not include an examination of the intractability issue at that stage.

[17] A determination of whether the criteria for designation as a dangerous offender have been met requires a consideration of all the criteria, based on the germane case law. Admittedly, Boutilier had not yet been issued at the date of the Second Designation Decision, so it is understandable that the sentencing judge would not have been alerted to this criterion and development in the law. However, the Second Designation Decision must now be scrutinized in light of Boutilier. The governing law requires that the offender’s treatability and manageability must be considered by the sentencing judge at the designation stage (Boutilier at paras 45 and 82).

[18] Justice Côté, writing for the majority in Boutilier, explained:

[27] … Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. I understand “intractable” conduct as meaning behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness.

[19] The principles in Boutilier have been reviewed and applied by this Court in a series of cases: R v Piche, 2019 SKCA 54, [2020] 2 WWR 240 [Piche]; R v Parfitt, 2019 SKCA 55, 378 CCC (3d) 490 [Parfitt]; and R v Starblanket, 2019 SKCA 130, 378 CCC (3d) 490 [Starblanket]. Those principles were summarized by Jackson J.A. in Parfitt (at paras 73–86) and in Starblanket, as follows:

[67] Importantly, the majority in Boutilier, under the pen of Côté J., made these declarations of principle:

(a) “an offender cannot be designated as dangerous unless the judge concludes that he or she is a future ‘threat’ after a prospective assessment of risk” which requires a “consideration of future treatment prospects” (at para 23, italics emphasis in original);

(b) following R v Lyons, 1987 CanLII 25 (SCC), [1987] 2 SCR 309 [Lyons], a sentencing judge must still be satisfied on the evidence that (Boutilier at paras 26–27):(i) the offender poses a high likelihood of harmful recidivism;(ii) his or her conduct is intractable, which is defined as “behaviour that the offender is unable to surmount” (at para 27);

(c) “[d]etermining whether or not a high risk of recidivism and intractability are present necessarily involves a prospective inquiry into whether an offender will continue to be … ‘a real and present danger to life or limb’” (at para 35);

(d) “the Crown must prove every dangerousness criterion beyond a reasonable doubt (R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368; R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229)”, but “what must be proven beyond a reasonable doubt with respect to these two prospective criteria is not their certainty, but their likelihood: Currie, at para. 42. This is so because ‘as a matter of practicality, the most that can be established in a future context is a likelihood of certain events occurring’: Lyons, at p. 364” (at footnote 1; see also para 41);

(e) “the sentencing judge must consider all retrospective and prospective evidence relating to the continuing nature of this risk, including future treatment prospects” (at para 43);

(f) “[a]t the designation stage, treatability informs the decision on the threat posed by an offender” (at para 45); and

(g) “offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable” (at para 45).(Emphasis added)

[20] Failure to consider evidence relevant to treatability and manageability at the designation stage is an error of law (R v Skookum, 2018 YKCA 2 at para 58, 45 CR (7th) 168 [Skookum]).

[22] In fact, the findings of the sentencing judge at the penalty phase, insofar as they concerned Mr. Bird’s treatment and management in the community, demonstrate that his conduct was not intractable. I cannot say that if that finding would have been considered by the sentencing judge at the designation stage, it would not have had a material effect on the designation, even though he had also found the requisite patterns and behaviours under ss. 753(1)(a)(i) and (ii). Moreover, there is no indication in either the First Designation Decision or the Second Designation Decision, based on the treatment prospects the sentencing judge did consider, that Mr. Bird’s future treatment prospects were adequately considered as required by Boutilier (at para 43).

[26] Accordingly, the designation of dangerous offender must be set aside.

B. If the sentencing judge erred, what is the remedy?

[35] These findings amount to an acceptance by the sentencing judge that Mr. Bird’s conduct was not shown to be intractable and that he was sincere in his motivation for successful treatment. These findings are not vitiated by any error in law, either as a result of the application of Szostak or the failure to conduct the analysis required by Boutilier. As well, with respect to future manageability, Dr. Lohrasbe indicated that a longer period of support and supervision with external guidance, support and monitoring will increase Mr. Bird’s prospects for risk management in the community. This meets the requirements set out in s. 753.1(1)(c).

[36] That the other requirements of s. 753.1(1), i.e., the appropriateness of a sentence of two years or more and a substantial risk Mr. Bird will reoffend, have been met are clear from the record.

[37] Applying the principles set out in Boutilier to the evidence in this case necessarily leads me to the conclusion that Mr. Bird should not be designated a dangerous offender. The appropriate designation is long-term offender and I find him to be so.

[39] I find, given the foregoing, that the appropriate sentence for Mr. Bird is the determinate sentence of five years’ imprisonment less credit for time served, a ten-year LTSO and the aforementioned ancillary orders.