R v Pascal (ONCA)
[May 6, 2020] Charter s.7 - Disclosure - Entitlement to Witness Criminal Records and Outstanding Charges - 2020 ONCA 287 [Reasons by Watt J.A. with Miller and Fairburn JJ.A. concurring]
AUTHOR’S NOTE: The questionable practice of the Kenora, Ontario police and prosecution of regularly withholding criminal records of witnesses from disclosure has had the positive effect of expanding the law of disclosure in favour of the defence. While actual criminal records are available (mostly) everywhere on request, the issue of use and disclosure of outstanding charges has been more murky. Here, the ONCA gives solid examples of how an outstanding criminal charge against a prosecution witness can meaningfully be used to challenge their credibility. In short, it provides them with a motive to ingratiate themselves with the police and prosecution (whether there is any positive evidence of a "deal" for their testimony or not). Unbeknownst to the police/prosecution the witness may attempt to curry favour at the expense of their credibility.
 Hours later, S.S. and the appellant were alone on a picnic table by a dock near the motel. It was there, S.S. alleged, that the appellant sexually assaulted her causing injuries to different parts of her body.
 Arrested shortly after these events, the appellant was charged with sexual assault causing bodily harm and two counts of failing to comply with the terms of a recognizance on which he had earlier been released.
After a first visit by the accused and his friend to the hotel room occupied by SS and her friend, the police were called. The Appellant left. Allegations from this visit included the Accused pushing SS to a bed after which she yelled at him and, with another male friend's help they forced the Accused to leave. (Paras 9-19)
The versions thereafter diverged between the Accused and the complainant. The complainant claimed a forceful re-entry and a charged walk down to a picnic table with the accused while she waited for police to re-arrive. Then she alleged the accused threw her to the dock, was significantly violent with her and tried to rape her while she screamed (Paras 22-27).
The Accused claimed that they had an amicable reunion and both walked to the picnic table by the dock. He put his arm around her and she invited him back to the hotel room. He did not want to go because police had been there earlier (he had conditions he was a breaching). She grabbed him by the ponytail and he lost his temper pushing and punching her. Then he ran away to his wife's room in the same hotel. He claimed there was no sexual touching at the dock. (Paras 29-30)
 S.S. was examined and treated at a local hospital. There were bruises to the right side of her neck, and bruises and skin tears on both elbows. A superficial laceration and considerable swelling were visible on S.S.’s nose. A bruise, 2 cm x 2 cm, was apparent on S.S.’s left thigh, about 6-7 cm from her vaginal opening. Some scar tissue remained on her face at the time of trial.
The Independent Eye-Witness
 At trial, the Crown called Deidre Jarvis, who worked at the time in the convenience store at Luby’s Motel. Ms. Jarvis also lived in the motel, in Unit 21. Her room was on the lower level and overlooked the dock area.
 ... Jarvis fell back asleep. Around 4:00 a.m. she was awakened again, this time by a “ruckus”. There was no more friendly conversation. This time the woman sounded distressed, as though she were trying to call for help. Jarvis went outside and yelled at the couple to “get off the dock.” At this point the man ran away, making motions which indicated to Jarvis he was pulling up his pants.
 As discussed below, this testimony was inconsistent in several respects with an initial statement Jarvis provided to police a few days after the incident. Jarvis was cross-examined on these inconsistencies by defence counsel at trial.
 Notwithstanding her inconsistent accounts, the trial judge ultimately accepted Jarvis’ evidence at trial and relied on it to reject the appellant’s version of events.
 The core of the proposed fresh evidence consists of Deidre Jarvis’ criminal record and of several charges outstanding against her when she testified at trial. Included in the latter category is evidence of her relationship with a notorious local drug dealer, Frank Novelli. The record filed in support of the application also includes evidence about Deidre Jarvis’ subsequent involvement in the criminal justice system, including charges laid and convictions entered after she testified at the appellant’s trial.
 It is common ground that prior to and at trial, the Crown had not provided and trial counsel had not sought disclosure of any information about Jarvis’ prior convictions or outstanding charges.
The First Statement
 Deidre Jarvis was first interviewed by DC Jackson of the Kenora Police Service about two days after the alleged sexual assault. Ms. Jarvis recalled having been awakened from sleep by a man and a woman talking and giggling on the dock. After about an hour, she fell back asleep. She was awakened a second time, around 4:00 a.m. The voices were loud. The man was doing most of the talking. Ms. Jarvis could not tell whether either of them appeared distressed. Jarvis heard them discussing a third individual; she was not certain of the name but mentioned B.S.’s first name as one of two possibilities. She went outside and yelled at them “I’m trying to sleep”. The man had a ponytail. She had seen him before in the convenience store and around Room 44 where his girlfriend lived. She saw the man get up, but did not see the woman.
The Second Statement
 The second statement was provided after PC Spencer had reviewed Deidre Jarvis’ first statement with her to prepare her for trial. This statement, provided on the first day of trial, was made about 17 months after the relevant events and the first statement. Like the first, the second statement consisted of questions and answers in written form, but was not audio or video recorded or sworn. It was completed in 11 minutes.
 In its material parts, the second statement reads:
A: That the girl was distressed which is why I finally intervened. I saw him with his hand over her mouth. It sounded ok at the start but it wasn’t friendly anymore and sounded more violent.
Q: Can you tell me what was being said?
A: No. I just went outside because it sounded bad. I didn’t want to get too close because I didn’t know what he was capable of. When I yelled at him to get off the dock he stood up and I know he had to be pulling up his pants. At this time there was no movement from her so I went back inside. I didn’t want him coming towards me.
Q: What made you say that you think he was pulling up his pants?
A: Just his movement. He was putting on something. It had to be because of how he moved.
 The trial judge acknowledged the frailties of Deidre Jarvis’ evidence, including her nearsightedness, mistaken estimate as to her distance from the dock, and the inconsistencies between her statements. He nonetheless invoked Jarvis’ testimony at several points in his reasons.
The Undisclosed Evidence
 At the time of trial, Deidre Jarvis had previous convictions of possession under, two counts of possession of controlled substances and one of possession of a controlled substance for the purpose of trafficking. The convictions were entered on September 10, 2001, over seven years prior to the appellant’s trial.
 Between her first and second statements Deidre Jarvis accumulated a number of criminal charges. In chronological order, those charges were:
- Possession of proceeds, over $5000 (March 2008)
- Failure to appear (May 5, 2008)
- Possession of cocaine for the purposes of trafficking (July 31, 2008)
- Possession of proceeds, over $5000 (July 31, 2008)
- Failure to comply (July 31, 2008)
- Possession of proceeds, under $5000 (August 28, 2008)
- Trafficking cocaine (2 counts) (August 28, 2008)
None of these charges were disclosed to the defence. And none of them were disposed of until after the appellant’s trial was complete.
 On the morning the appellant’s trial began, defence counsel received a copy of Deidre Jarvis’ second statement given that day. Nothing in it gave him any reason to inquire whether Ms. Jarvis had any criminal history. He considered it raised a reliability issue, one which could be dealt with through crossexamination to neutralize the incriminating aspects of her testimony and bring her back to the portions of the contemporaneous first statement which were compatible with the defence position.
 Constable Gordon knew about Novelli’s drug dealing activities and his relationship with Deidre Jarvis but he was not sure about any charges against Jarvis because drug investigations operated out of a different police unit than he did. He did not inquire into potential outstanding charges. It was not the practice of Kenora Police Service to do so except where the Crown asked about criminal records and outstanding charges in connection with a person proposed as a surety. He did not consider Deidre Jarvis a significant witness in the prosecution of the appellant.
 Constable Gordon assumed the trial Crown would be aware of any outstanding charges against Deidre Jarvis. He based his conclusion on the fact that disclosure in drug cases is made through the local Crown Attorney’s office, in the absence of a standing Federal agent in Kenora, and that the provincial and Federal Crowns are in the same courtroom at the same time. In this case, no affidavit was filed on behalf of the trial Crown.
 Constable Frankcom was aware of Deidre Jarvis and her involvement in various narcotics investigations. He had been assigned the task of checking baggies for fingerprints and preparing a list of the exhibits seized during the investigation. He continued to work on the drug investigation during the appellant’s trial. He was also aware of Jarvis’ relationship with Novelli and their shared residence in Kenora.
 Constable Frankcom testified that it never occurred to him to tell the Crown about the drug seizures and the ensuing investigation involving Deidre Jarvis. In his mind, Jarvis’ testimony at the appellant’s trial and her involvement in drug investigations were two different things, neither of which had anything to do with his duties as a forensic identification officer.
 The appellant says there is a reasonable possibility that the verdict rendered could have been different had the required disclosure been made....
Obligations to Provide Disclosure
 Two different disclosure regimes govern disclosure in criminal cases. First party disclosure under Stinchcombe supplemented by the duties imposed upon the Crown and investigating police in R. v. McNeil, 2009 SCC 3,  1 S.C.R. 66, and third party disclosure under R. v. O’Connor,1995 CanLII 51 (SCC),  4 S.C.R. 411. The purpose of each regime is to protect an accused’s right to make full answer and defence, while at the same time to recognize the need to impose limits on disclosure when required: R. v. Gubbins, 2018 SCC 44,  3 S.C.R. 35, at para. 29; World Bank Group v. Wallace, 2016 SCC 15,  1 S.C.R. 207, at para. 115.
 First party disclosure under Stinchcombe imposes a duty on the Crown to disclose all relevant, non-privileged information in its possession or control, whether that information is inculpatory or exculpatory, unless disclosure of that information is governed by some other regime. This duty is ongoing and corresponds to the accused’s constitutional right to the disclosure of all material which meets the Stinchcombe standard: Gubbins, at paras. 18-19; Stinchcombe, at pp. 339; and R. v. McQuaid, 1998 CanLII 805 (SCC),  1 S.C.R. 244, at para. 22.
 The purpose of disclosure is to protect an accused’s Charter right to make full answer and defence. That right will be impaired where there is a reasonable possibility that undisclosed information could have been used by the accused to meet the case for the Crown, to advance a defence or to otherwise make a decision which could have affected the conduct of the defence: Gubbins, at para. 18; McQuaid, at para. 22.
 Crown entities other than the prosecuting Crown – including the police – are third parties for the purposes of disclosure. They are not subject to the Stinchcombe regime: Gubbins, at para. 20; McNeil, at para. 22; and R. v. Quesnelle, 2014 SCC 46,  2 S.C.R. 390, at para. 11. The prosecuting Crown’s disclosure duty under Stinchcombe is triggered upon a defence request for disclosure: Gubbins, at para. 19; Stinchcombe, at pp. 342-43.
 It ill lies in the mouth of the prosecuting Crown to explain failure to disclose relevant material on the basis that the investigating police service failed to disclose it to the Crown. When put on notice of potentially relevant material in the hands of the police or other Crown entities, the prosecuting Crown has a duty to make reasonable inquiries. Correspondingly, the police have a duty to disclose to the prosecuting Crown all material pertaining to its investigation of the accused. This material is often termed “the fruits of the investigation”: Gubbins, at para. 21; McNeil, at paras. 14, 22-24 and 52.
 The “fruits of the investigation” refers to the police investigative files, not their operational records or background information. In other words, “fruits of the investigation” refers to information “generated or acquired during or as a result of the specific investigation into the charges against the accused”: Gubbins, at para. 22.
 However, the police obligation of disclosure to the prosecuting Crown extends beyond the “fruits of the investigation”. The police should also disclose to the prosecuting Crown any additional information that is “obviously relevant” to the accused’s case. This “obviously relevant” information is not within the investigative files, but must be “disclosed under Stinchcombe because it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence”: Gubbins, at para. 23.
 To determine which disclosure regime applies to information, a court must consider whether:
i. the information sought is in the possession or control of the prosecuting Crown; and
ii. the nature of the information sought is such that the police or another Crown entity in possession or control of it should have supplied the information to the prosecuting Crown.
The second question will be answered affirmatively where the information is part of “the fruits of the investigation” or is “obviously relevant”. An affirmative response on either of these issues means that the first party or Stinchcombe disclosure regime applies: Gubbins, at para. 33.
Evidentiary Use of Prior Convictions and Outstanding Charges
 Section 12(1) of the Canada Evidence Act, R.S.C., 1985, c. C-5, permits questioning a witness on whether they have been convicted of any offence. The fact that a witness has been convicted of a crime is relevant to that person’s trustworthiness as a witness. Some convictions – for example, offences involving dishonesty or false statements – have a greater bearing on testimonial trustworthiness than others. The probative value of prior convictions also varies with other factors. The number of prior convictions. Their proximity or remoteness at the time of the witness’ testimony. See e.g. R. v. Brown (1978), 1978 CanLII 2396 (ON CA), 38 C.C.C. (2d) 339 (Ont. C.A.), at p. 342; R. v. Murray (1997), 1997 CanLII 1090 (ON CA), 115 C.C.C. (3d) 225 (Ont. C.A.), at para. 9.
 As a general rule, an ordinary witness, unlike an accused, may be cross-examined on unrelated misconduct which has not resulted in a criminal conviction. This includes cross-examination on conduct that underlies charges outstanding against a witness at the time of their testimony. The purpose of this cross-examination is to impeach the witness’ credibility: R. v. Davison, DeRosie and MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.), at pp. 443-44, leave to appeal refused,  S.C.R. viii; R. v. Gonzague (1983), 1983 CanLII 3541 (ON CA), 4 C.C.C. (3d) 505 (Ont. C.A.), pp. 510-11; and R. v. Gassyt (1998), 1998 CanLII 5976 (ON CA), 127 C.C.C. (3d) 546 (Ont. C.A.), at para. 37, leave to appeal refused,  2 S.C.R. vi.
 As a general rule, the mere fact that a witness is charged with an offence cannot degrade the witness’ character or impair their credibility. Generally this rule would mean that a witness could not be cross-examined about whether they were then charged with a criminal offence. But this rule gives way and permits cross-examination for the purpose of showing that the witness has a possible motivation to seek favour with the prosecution. A circumstance that may permit cross-examination on the fact of outstanding charges arises when the same police service that laid the charges outstanding against the witness also laid the charges against the accused about which the witness testifies for the Crown: Gonzague, at p. 511; Gassyt, at paras. 36-38; and R. v. Titus, 1983 CanLII 49 (SCC),  1 S.C.R. 259, at p. 263.
Appeals on the Basis of Breach of Disclosure Obligations
 An appellant who seeks a new trial based on a disclosure failure must first demonstrate a breach of the right to disclosure. This requires that the appellant demonstrate a reasonable possibility that the undisclosed information could have been used:
i. to meet the case for the Crown;
ii. to advance a defence; or
iii. to make a decision that could have affected the conduct of the defence.
See Dixon, at paras. 22-23.
 It is well established that as a witness in a criminal trial, Deirdre Jarvis could be cross-examined on any prior convictions under s. 12(1) of the Canada Evidence Act. And as a non-accused witness, she could be cross-examined on disreputable conduct – for example, her outstanding charges at the time of trial, and the conduct underlying those charges.
 It follows that Deidre Jarvis’ criminal record, as well as information about outstanding charges and the circumstances on which those charges were based, was relevant in the sense that it could be used to impeach Ms. Jarvis as a witness. This information was not substantively admissible. Its use was limited to impeachment.
 No one suggests that the information at issue here was in the possession or control of the prosecuting Crown. Even if it be assumed that the local Crown was aware of the antecedents of the witness, this does not amount to possession or control of the information: R. v. Yumnu, 2012 SCC 73,  3 S.C.R. 777, at para. 64.
 On the other hand, it cannot be seriously suggested that the investigating police service is not in possession or control of a prospective witness’ criminal record since that force has access to records of criminal convictions through CPIC. Likewise, at the very least where that force is the investigating agency, or a participant in a joint forces investigation into the alleged criminal conduct of a witness, that agency can be said to have possession and control of the information with which we are concerned here.
 However, in my respectful view, the information with which we are concerned here falls within the “obviously relevant” category for disclosure purposes. It follows that it was incumbent on the police to turn over this information to the prosecuting Crown for disclosure to defence counsel.
 The phrase “obviously relevant” describes information that is not within the investigative file but is nonetheless required to be disclosed underStinchcombe because it relates to an accused’s ability to meet the case for the Crown, to raise a defence or to otherwise consider the conduct of the defence: Gubbins, at para. 23. Logically, this would include evidence that could be used to impeach the credibility of witnesses to be called to establish the accused’s guilt: Taillefer, at para. 62. The relevance of outstanding charges in particular was emphasized by the Court in Titus, at pp. 263-64:
[T]he accused is entitled to employ every legitimate means of testing the evidence called by the Crown to negative that presumption and in my opinion this includes the right to explore all circumstances capable of indicating that any of the prosecution witnesses had a motive for favouring the Crown. In my opinion the outstanding indictment preferred against the witness by the same police department that had laid the present charge against Titus constitutes such a circumstance… . [Emphasis added.]
 It is difficult to gainsay the relevance of the information at issue here. A criminal record. Outstanding charges. Evidence about the circumstances underlying the relevant charges. Each available for impeachment of a witness called by the Crown. Each a relevant factor in deciding whether to call Deidre Jarvis as a defence witness in the event she was not to be called by the Crown. Relevance is the controlling principle, not the likelihood of use or prospect of success.
 Kenora is not a large place. It had a police service at the time of about 40 members. That police service conducted or participated in the investigation that led to the charges against Deidre Jarvis and her partner, Frank Novelli, the biggest drug dealer in town. The offences involved were significant. Some of the arrests, including that of Jarvis, were publicized on local media outlets. One of the officers who was involved in the investigation of the offence alleged against the appellant was in the courtroom assisting in the organization of the exhibits throughout the appellant’s trial at which Deidre Jarvis testified. During the same period of time, the same officer was conducting forensic analyses of some exhibits seized during the investigation of the drug charges then outstanding against Deidre Jarvis and essential to the proof of those charges. I am satisfied the police knew about Jarvis’ outstanding charges.
 The local practice, if such it be, not to discuss the criminal records or outstanding charges faced by a Crown witness did not obviate the disclosure obligation on the police. Even if it could be argued that the disclosure obligation had not clearly crystallized when Deidre Jarvis gave her first statement, it had plainly crystallized by the time she provided her second statement on the morning of the first day of trial.
 I have concluded that the police working on the appellant’s case knew about Deirdre Jarvis’ outstanding charges. Accordingly, they carried a disclosure obligation to turn over to the Crown Ms. Jarvis’ criminal record and information concerning the outstanding charges she was then facing. The Crown was then required to disclose this information to the defence.
 Without the benefit of hindsight, it is difficult to assign fault to defence counsel for a failure to request disclosure and information of which he was neither aware nor had any reason to suspect existed even after the volte-face of the witness on the first day of trial.
 ...In rejecting the appellant’s version of events, the judge accepted Deirdre Jarvis’ “solid and unequivocal” evidence about “what occurred at the dock.” Although the trial judge also rejected the appellant’s evidence on the basis of its inherent implausibility in light of the evidence of what had occurred earlier in the evening and the 911 call that resulted, it cannot be said that Deirdre Jarvis’ evidence was peripheral to the trial judge’s rejection of the appellant’s evidence or to his conclusion that the prosecution had proven the appellant’s guilt in relation of the sexual assault beyond a reasonable doubt.
 Were the application based solely on Deidre Jarvis’ criminal record, I would not allow the appeal. The criminal record is dated. No offences of dishonesty. No disobedience of court orders. No interferences with the administration of justice. There is no reasonable possibility that disclosure could have impacted the result at trial.
 However, the outstanding charges are a different matter. While evidence of Jarvis’ charges was not relevant or admissible to prove any material issue at trial, it was highly probative of Jarvis’ credibility and was admissible for impeachment purposes.
 Facing charges laid by the same police service handling the appellant’s case, Jarvis may have been motivated to ingratiate herself with the police and prosecution. Between her first and second statements, Jarvis accumulated eight charges. Some were minor. Others – related to trafficking of cocaine – less so. None were resolved by the time of the appellant’s trial. Jarvis’ first statement, before the charges, was consistent with the appellant’s version of events. Her second, after the charges, was not. To the contrary, her testimony provided tailored support for the Crown’s position on the contested issues at trial.
 I take no position on whether Jarvis in fact altered her account to curry favour with the prosecution. The relevant point is that Jarvis, at first a key but mixed witness for the Crown, 17 months later, on the morning of the first day of trial, while herself facing serious outstanding charges laid by the same police service that investigated the appellant, transformed into a witness who sealed the case for the Crown on the critical issue at the appellant’s trial, the sexual nature of the assault.
 The materiality of the undisclosed information is high. As I have explained, the outstanding charges imbued Jarvis with a strong motivation to alter her statement in order to curry favour with the prosecution. Failure to disclose these charges foreclosed the possibility for defence counsel to impeach Ms. Jarvis on this basis.
 For these reasons, I would allow the conviction appeal and order a new trial. It is therefore unnecessary to consider the appeal against sentence.
R v Fucile (ABCA)
[May 7, 2020] Hearsay: Definition of Prejudicial for Probative v Prejudical Balancing - ASF: Tendering Documents "For the Truth of their Contents" - 2020 ABCA 189 [Marina Paperny, Elizabeth Hughes, Jolaine Antonio JJ.A.]
AUTHOR’S NOTE: Inaccurate use of the term "prejudicial" abounds in lower courts. Often this is simply a colloquial reference to something that is against your client's interest. However, in criminal law this has a specific meaning and should not be confused in the legal assessments of admissibility of evidence. ABCA confirms that "prejudicial" means capable of improper or unlawful use. Indeed when referring to evidence that proves the offence, the categorisation should be that the evidence is thereby "probative." Confusion by the trial judge of this terminology led to an order for a new trial.
Also, the case notes an interesting view of admissions of documents "for the truth of their contents." Instead of those documents conclusively establishing facts, such an agreement is merely the agreement that the documents are properly admissible and can be referred to. Then counsel appear to be free to attack the weight that should be attached to evidence within the document.
 On June 20, 2017, the complainant called out from her balcony for help and caught the attention of Ms. Sakaguchi, who was in a neighbouring yard. The complainant asked her to call 911. She said she had been kidnapped but she did not know her captor. The complainant described him to Ms. Sakaguchi and told her he drove a silver Kia.
 The complainant was on her balcony when police arrived. She was panicked, her arms and legs were bound, and a gag was below her mouth. When the police entered the townhouse and began removing the restraints, the complainant told them she had been kidnapped by her roommate, Tyler-John Louis Fucile. She said that he was going to kill her because she knew too much about his drug dealing, and he had bound, gagged, punched and kicked her before putting her in a closet. The police observed bruises on her torso and blood on her shirt. They described her demeanour as shaking, frantic, hysterical and upset. She said her roommate had left the townhouse in a rented silver Kia.
 In the ambulance, she told one of the constables that Tyler had done this to her because he was paranoid, had been drinking and doing cocaine, was a cocaine dealer and was worried she would tell the police.
 At the hospital, the complainant did not want to give a statement. Several attempts were made to meet with her to take a statement, but no statement was ever obtained.
 Neither Ms. Sakaguchi nor the complainant appeared to testify at trial.
 Ms. Sakaguchi’s handwritten police statement was appended to an agreed statement of facts, which said that it was “admitted for the truth of its contents”. As noted, in the statement Ms. Sakaguchi wrote that the complainant made statements to her, notably that she did not know her captor (“the Sakaguchi hearsay”).
 The Crown sought to adduce the complainant’s statements to the police (“the police hearsay”) under the principled exception to the hearsay rule as set out in R v Khan,  2 SCR 531. The trial judge denied the application because the Crown had not established necessity: there was no evidence the complainant had been notified of the trial date, had refused to testify or was unavailable to attend court.
 The trial judge then suggested the police hearsay could be admissible under the res gestae exception. He afforded counsel the opportunity to make submissions on point; they did so in writing.
... He found the police hearsay statement was trustworthy as it had been made while the police struggled to release the complainant from restraints and to take her to hospital; the stress and pressure of the event was ongoing, such that there was no time to concoct or to fabricate. Accordingly, he concluded the police hearsay met all the elements of a res gestae exception.
The Agreed Statement of Facts
 Some of the problems in this trial originated in the format of the agreed statement of facts. Where a fact is admitted, the trier of fact must accept it as proved. The best practice for counsel drafting an agreed statement of facts is to state precisely the facts that are being admitted. There is no need to provide the evidence that supports those facts; indeed, doing so can give rise to confusion.
 Here, the agreed statement of facts referred to the attached handwritten statement of Ms. Sakaguchi and stated that it was admitted for the truth of its contents. An agreement to admit a piece of evidence for the truth of its contents typically means that counsel agree the evidence is admissible, such that the trier of fact can consider the evidence for the truth of its contents. That is, the trier can consider that piece of evidence in the context of all the evidence and assign weight to it as the trier sees fit. By contrast, an admitted fact is intended to be taken as such conclusively without further weighing.
 The second source of confusion arising from the agreed statement of facts was that Ms. Sakaguchi’s handwritten statement contained hearsay statements made by the complainant. There was no indication in the agreed statement of facts as to how that hearsay was to be treated.
 The best practice for a trial judge facing an ambiguous agreement as to fact or evidence is to ask the parties what they intended, thereby ensuring that facts are knowingly and voluntarily admitted. Here, there was no inquiry, and no express answer to the question of whether, in agreeing to admit Ms. Sakaguchi’s handwritten statement for the truth of its contents, the defence thought it was admitting as fact that the complainant spoke words to Ms. Sakaguchi as described, or that the complainant did not know attacker.
Hearsay Admissibility - the Definition of Prejudice
 The defining features of a hearsay statement are that it is being adduced to prove the truth of its contents and there is no opportunity to cross-examine the declarant as to the truth of the contents: R v Khelawon, 2006 SCC 57 at para 35; R v Starr, 2000 SCC 40 at para 162. Where cross-examination cannot be used to test the honesty of the declarant or the accuracy of the statement, it can be difficult for the trier of fact to assess whether the contents of the statement are true. Hearsay therefore poses a threat to both the fairness and truth-seeking functions of a trial and is presumptively inadmissible: R v Bradshaw, 2017 SCC 35 at paras 1, 20; Khelawon at para 47.
 As the Supreme Court summarized in R v Starr at para 2 and Khelawon at paras 49 and 60, hearsay is admissible in evidence if it meets the criteria of a traditional hearsay exception or if it meets the criteria of necessity and reliability under the principled exception. As is true of all evidence, the trial judge retains a discretion to exclude legally admissible hearsay if its prejudicial effect outweighs its probative value: Starr at para 3, Khelawon at paras 3, 49.
 While a discretionary decision will attract deference, it "may be reviewed on appeal if it is based on reasons which are not well founded in law": R v Barrette, 1976 CanLII 180 (SCC),  2 SCR 121 at 125. Here, the trial judge erred in defining prejudice. This error tainted his weighing of the police hearsay’s prejudicial effect against its probative value and his conclusion that it should be admitted into evidence.
 As explained in R v Frimpong, 2013 ONCA 243 at para 18, evidence has a prejudicial effect
… if it threatens the fairness of the trial. Evidence may be prejudicial if it cannot be adequately tested and challenged through cross-examination and the other means available in the adversarial process. Evidence may also be prejudicial if there is a real risk that the jury will misuse the evidence (e.g. propensity evidence), or be unable to properly assess the evidence regardless of the trial judge’s instructions. This latter form of prejudice must, however, overcome the strong presumption that jurors can and do follow the trial judge’s instructions. “Prejudicial” does not mean “inculpatory”, and evidence is not prejudicial merely because it tends to support a finding of guilt. Prejudicial evidence introduces “the risk of an unfocused trial and a wrongful conviction” and can lead to a verdict that is “based on prejudice rather than proof, thereby undermining the presumption of innocence”: R v Handy (2002), 2002 SCC 56 (CanLII), 164 C.C.C. (3d) 481 (S.C.C.), at p. 519 para 139.
 In short, “[p]robative value is concerned with ‘proof of an issue’, while prejudicial effect is concerned with ‘the fairness of the trial’”: Hart at para 109.
 In his reasons on the res gestae voir dire, the trial judge held that the police hearsay was prejudicial to the appellant. His only explanation for that conclusion was that “[i]dentification of an accused as the offender will always be extremely prejudicial to the accused”. This was an error. The police hearsay, like identification evidence generally, would tend to support a finding of guilt. That does not make it prejudicial. It makes it probative, as the trial judge also noted. Having applied the same definition to both “prejudicial effect” and “probative value”, it is not surprising that he found the two were equal in weight.
Re-Weighing by ABCA
 In the circumstances of this case, the police hearsay had a prejudicial effect that outweighed its probative value. In the res gestae voir dire, the trial judge considered only the admissibility of the police hearsay, but he was aware of the Sakaguchi hearsay, which was contradictory on the crucial question of identification. The complainant made both statements under similar circumstances, and both were treated as admissible on the same basis: that they were made when there was no opportunity to concoct. The complainant was unavailable to explain or to be challenged on the reason for the contradiction. The trial judge correctly stated in his conviction reasons that, absent her testimony, he could not speculate on why she told Ms. Sakaguchi that she did not know her captor. Nor could he properly speculate on why she told the police that she did. As regards identification, the police hearsay was uncorroborated in many material respects. There was little if any other evidence to assist in evaluating the reliability of either of the complainant’s statements.
 We allow the appeal and exclude the police hearsay from evidence. In so doing, we should not be taken as establishing a rule that contradictory statements by the same declarant can never be received in evidence or considered for their truth. Factors that were absent in this case, such as the ability to cross-examine the complainant or evidence that corroborates one version over the other, may suffice to reverse the balance of prejudicial effect and probative value.
R v Char (ONSC)
[May 6, 2020] – Circumstantial Evidence - Production - Difference between Inference and Speculation – 2020 ONSC 1620 [Byrne J.]
AUTHOR’S NOTE: Herein, the Crown tried to prove a production case without any wiretap evidence or an arrest at the lab location. Critically, they appeared to wait too long after the accused's last attendance at the lab location to execute the search warrant leading to the discovery of the production evidence. Consequently, the case proceeded entirely as circumstantial case against the accused. The conclusions are a roadmap to acquittal for other counsel trying similar cases.
 All charges against Mr. Char stem from a joint forces police investigation into clandestine laboratories producing ketamine and methamphetamine called Project Apollo. The investigation commenced in August 2016 and concluded on takedown day on March 24, 2017. This investigation focused on the following four locations:
(1) 80 Colville Road – A unit in an industrial building.
(2) 107 Northolt Crescent – A detached home in a residential neighborhood.
(3) 7 Copthorne Drive – A detached home in a residential neighborhood.
(4) 20 Chasser Drive – A home in a residential neighborhood.
 On February 2, 2017, police executed a covert general warrant inside the front porch of 107 Northolt Crescent. A sample from a white paper funnel tested positive for ketamine. At the time of warrant’s execution, all items in the porch were innocuously stored. It would not have been evident to any one entering that porch that nefarious items connected to controlled substances like ketamine and methamphetamine were being stored there.
 There is one other unusual aspect to this case that bears mentioning, especially in the context of an allegation of conspiracy. The case against Mr. Char turns entirely on video surveillance evidence and the conduct of Mr. Char and others. There is absolutely no evidence of any verbal communication between any of the males including Mr. Char.
 All the substances and physical equipment located at 80 Colville Road were identified by Mr. McGregor as being consistent with the production of methamphetamine and ketamine. Remnants of both drugs were found on the premises. In my view, it is self-evident from the photographs and Mr. McGregor’s evidence that at some point prior to takedown day, methamphetamine and ketamine were being produced at 80 Colville Road. Defence counsel concedes same.
 The same conclusion cannot be drawn from 107 Northolt Crescent. Mr. McGregor did not attend that location. He did review photographs and had the benefit of substances that were sampled and tested. Remnants of ketamine were found on some paper towel inside a bucket in the garage. Many other ingredients and equipment were also located in the garage. The most notable difference between 107 Northolt Crescent and 80 Colville Road is the set up. The photographs of the interior of the garage at 107 Northolt Crescent are innocuous. They depict a typical garage with some garbage, some boxes of items, containers and other things. Certainly, to the untrained eye, nothing seems on its face suspicious. I agree that the garage contained many items necessary for the production of methamphetamine and ketamine, however, there is no evidence before me that it was set up for production on takedown day. Nor am I prepared to conclude on the evidentiary record before me that it had been used as a facility for production prior to takedown day. I am satisfied that it was a storage facility for the production of methamphetamine and ketamine. I am further satisfied that it was connected to the 80 Colville Road location.
Circumstantial Evidence and Speculation
 It is not enough for me to believe that Mr. Char is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.
 The sole issue in this case is identity. In that regard, the Crown’s case against Mr. Char is entirely circumstantial. Accordingly, I remind myself that in order to find Mr. Char guilty, I must be satisfied beyond a reasonable doubt that such a finding is the only logical conclusion or inference based on the evidence as a whole. (See: R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138 at paras. 22–25; R. v. Villaroman, 2016 SCC 33,  1 S.C.R. 1000 at paras. 38–43.)
 The distinction between inference and speculation is difficult. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion the trier of fact may, but not must, draw in the circumstances. (See: Finkelstein v. Ontario Securities Commission, 2018 ONCA 61, 139 O.R. (3d) 161, at para. 61, leave to appeal to S.C.C. refused, 38022 (13 December 2018).) (See also: R. v. Tsekouras, 2017 ONCA 290, 353 C.C.C. (3d) 349 at paras. 229–231, leave to appeal to S.C.C. refused, 37533 (8 February 2018).)
 Speculation, on the other hand, involves theorizing in the absence of evidentiary support. Speculation occurs when a conclusion is reached in the absence of positive, proven, objective facts from which an inference may be drawn. (See: R. v. Chanmany, 2016 ONCA 576, 328 C.C.C. (3d) 578, at para. 45, leave to appeal to S.C.C. refused, 37488 (1 June 2017).)
 For reasons stated, I am satisfied that ketamine and methamphetamine were at some point produced at the 80 Colville Road location prior to takedown day on March 24, 2017. Further, I have found that there was no such production taking place at 107 Northolt Crescent but that it was being used as a storage facility to house equipment and ingredients necessary for the production of ketamine and methamphetamine. Further, given that many of the same males were seen at both locations, there is an undeniable inference that the locations were, to some extent, connected.
 The question becomes what was Mr. Char’s role in all of this?
 In order to find Mr. Char guilty of the production counts, I must be satisfied not only that Mr. Char participated in the production but also that he knew he was participating in the production of ketamine and/or methamphetamine. As previously indicated, not only is the case against Mr. Char wholly circumstantial, but it is also based entirely on non-verbal conduct of Mr. Char captured on video clips. From that perspective, this case is very much an anomaly. As such, under these circumstances, I must be satisfied that the only logical conclusion based on Mr. Char’s conduct and frequency at the locations in question is that he knew he was participating in the production of these controlled substances.
 After a thorough review of the evidence, I have identified Mr. Char attending at the location of 80 Colville Road on three days: March 6, 8 and 10, 2017. Further, I have identified Mr. Char attending the location of 107 Northolt Crescent on two days: March 10 and March 16, 2017.
 At first glance, this evidence seems quite compelling, even suspicious. However, when I consider it in conjunction with the lack of evidence as to when the clandestine lab was in operation, it becomes less so. Here is why. The last day Mr. Char was seen at 80 Colville Road was on March 10, 2017 and it was not until 14 days later that police discovered the clandestine lab for the production of ketamine and methamphetamines at that location. There is no dispute between that parties that a lab of this nature can be set up and running within a matter of days.
 The expert testified that there was no way to determine how long this lab had been functioning. Certainly, on March 24, 2017, it would have been self-evident to anyone who entered that it was or had been operating as clandestine lab. Unfortunately, I have no evidence as to how it appeared or what the contents were on March 10, 2017, the last day that Mr. Char was in attendance. This leaves open the very real possibility that when Mr. Char was in attendance, the lab had not been set up at all or in any noticeable way. There is a similar absence of evidence as to the set up in the garage of 107 Northolt Crescent on March 10, 2017.
 I am mindful that Mr. Char was also captured on video at 107 Northolt Crescent on March 16, 2017. Again, on this day, Mr. Char is seen on video taking a white bucket and placing it in the porch. For reasons already stated, I am unable to discern what, if anything, was in the bucket and where Mr. Char retrieved it from.
 When I consider the totality of the evidence against Mr. Char, there is no denying that his conduct and associations with people and places are highly suspicious. However, to find Mr. Char guilty of the production counts, I must be convinced beyond a reasonable doubt that the only logical inference based on the evidence or the lack of evidence, is that Mr. Char knew that he was participating in the production of controlled substances or that he was willfully blind. Because the evidence in this case is based entirely Mr. Char’s conduct, the nature of the activity must be clear and unequivocal. It is not. There are any number of reasonable and innocent explanations for his activity that I am unable to exclude. As such, I find myself left in a state of reasonable doubt.
 Accordingly, acquittals will be entered on counts 2, 3, and 4.
 As previously indicated, the Crown’s case of conspiracy is based entirely on non-verbal video clips of Mr. Char. The clips are brief in nature and even when combined with the rest of the evidence, I am not persuaded beyond a reasonable doubt that Mr. Char was part of a conspiracy to produce ketamine and/or methamphetamine. I am not able to exclude innocent explanations for Mr. Char’s conduct. The evidence, in my view, does not rise to the level of proof beyond a reasonable doubt.
 Accordingly, an acquittal will be entered on count 1.