This week’s top three summaries: R v LaChance, 2023 SKCA 48: #necessity and hearsay exp’n, R v Bruzzese, 2023 ONCA 300: absence of #forensics, and R v Baker, 2023 ABCA 136: #murder parole eligibility hearing.
This week's top case deals with the result of inadequate witness preparation. For great general reference on the law and practice of witness prep, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
R v Lachance, 2023 SKCA 48
[April 25, 2023] Principled Exception to Hearsay: The Necessity Requirement, Eye-Witness Identification by Police [Reasons by Barrington-Foote J.A. with Caldwell and Leurer JJ.A. concurring]
AUTHOR’S NOTE: This case provides a great illustration of what happens when witness preparation is inadequate to the witness' needs. While this particular witness' needs may have been higher than most, a lack of follow through on traditional methods of forcing attendance and dealing with fears of facing the accused meant the Crown could not satisfy the element of necessity to tender the out-of-court statement. Moreover, the process of proving necessity requires a voir dire where the submissions of counsel are not enough (in the absence of agreement on the facts) to provide an evidentiary foundation.
[1] Shortly after midnight on August 8, 2020, Saskatoon police officers Jason Willard and Cody Bishop attended at Jacky Lachance’s sister’s house. They did so in response to a report by Danelle Strongarm that there had been a break and enter at the house by Mr. Lachance and a female who was later identified as Shanelle Littlewolfe, and that she had been assaulted. When the police knocked on the locked front door, no one answered, and Cst. Willard went to the back of the house. Hearing rustling, he peered through a grove of trees and saw a person ten feet away on the back deck of the house pointing a gun at him.
[2] Constable Willard ran from the yard and he and Cst. Bishop retreated to their vehicle and called for backup. They and the many other officers who responded watched both entrances to the house until Mr. Lachance and Ms. Littlewolfe exited through the front door about an hour later. Mr. Lachance was immediately arrested. When they searched the house, the police found a disassembled .22 calibre rifle.
[3] Mr. Lachance was charged with eight assault and firearms offences, including an assault on Ms. Strongarm. Ms. Strongarm went to the court house on the original trial date but left before she was to testify. There was evidence that Mr. Lachance had posted a Facebook message the night he was arrested, calling Ms. Strongarm a rat and encouraging his gang associates to “hit her up”. The trial was adjourned to enable the Crown to secure her attendance when the trial was reconvened, but it was unsuccessful in doing so. In the result, the Crown applied to introduce her videorecorded statement to the police pursuant to the principled exception to the hearsay rule. Following a voir dire, the trial judge dismissed the application [voir dire decision].
[4] Mr. Lachance testified in his own defence, denying that he had committed any of the offences with which he was charged. On October 28, 2021, the trial judge acquitted him on all counts [acquittal decision].
[5] The Crown has appealed all of Mr. Lachance’s acquittals. It contends that the trial judge committed several errors of law in assessing the evidence and in finding that the Crown had not established necessity on the hearsay voir dire. I have concluded that there were no such errors of law, and that the appeal must accordingly be dismissed in its entirety. My reasons follow.
II. BACKGROUND
A. Evidence of the possession and pointing of a firearm
[6] The only direct evidence that Mr. Lachance was the person on the deck with a firearm was that of Cst. Willard. When Cst. Willard was confronted by that person he was standing a mere ten feet away. He testified that he immediately “kind of fell backwards into a tree” and that he “could hear the racking of a shotgun and that the man said, “Get the fuck out of here”. He said that his view was unobstructed and that, despite the time of day, the lighting was “decent enough”.
[7]...Constable Willard – who had never seen Mr. Lachance before or since the incident – also identified him in court as the man holding the gun on the deck. He was unable to say what the man was wearing.
[8] Constable Bishop, who had observed shortly after...
...was accordingly unable to observe the deck....
... he too heard a male voice say, “Get the fuck out of here” and a sound of metal-on-metal...
...He said it sounded like “a shotgun racking or a handgun racking … or the bolt of an action inside a gun”.
[9] Constable Willard was understandably terrified. It was his evidence that he thought he was going to lose his life and that he was “under a lot of panic”...
[10] After the backup units arrived at the scene, other police officers surrounded the house. Unsuccessful attempts were repeatedly made to contact the occupants of the house. When Mr. Lachance and his companion finally emerged, they both appeared to be intoxicated and were agitated and uncooperative. Mr. Lachance was arrested. When the house was searched a few hours later, the police found the cut-off end of a .22 calibre rifle barrel in the kitchen, a bolt from a .22 calibre rifle in a bedroom, and a receiver from a .22 calibre rifle in a closet outside another bedroom. There was no shotgun in the house.
B. Evidence of the Strongarm assault: the video statement and voir dire
[13] The 11-minute statement that would become the subject of the video voir dire was given by Ms. Strongarm at the request of the police the night of August 8, 2020. She was subpoenaed and attended at the court house on the morning of the trial, but never took the stand. When court reconvened that afternoon, Crown counsel advised that she wished to introduce the video as proof of the truth of its contents. She reported that she had spoken to Ms. Strongarm during the lunch break, that Ms. Strongarm was hyperventilating and in tears, and that when Crown counsel asked that she come into the courtroom to see the setup, Ms. Strongarm ran from the court house. Crown counsel stated that Ms. Strongarm told her that she was fearful for her life and “[did] not want to testify against the accused in this case and she does not want to put her life at risk”.
[14] Crown counsel submitted to the trial judge that this established necessity for the purpose of admitting Ms. Strongarm’s out-of-court statement. She proposed to recall Cst. Smith, who had taken the statement, to give evidence bearing on its reliability. She confirmed that she wished to enter into a voir dire for that purpose, and when asked if she intended to call evidence on the issue of necessity, she answered, “No, simply what I have submitted to the Court”. The following exchange then occurred between the trial judge and Crown counsel, Ms. Le:
THE COURT: That’s -- that’s not evidence. You’re going to have to -- you’re going to have to call some evidence on that. Are you going to take ten minutes and consider your position on what evidence you can call with respect to that?
MS. LE: I think -- yes, Your Honour. I would like that. But one of my submissions would be you do have some evidence before you already in relation to her fear. The text messages that she has received indicates that there was possible retaliations from gang members --
THE COURT: I agree that I have some evidence with respect to that issue of it. But I don’t -- the question is on necessity is whether or not it is necessary and whether the witness can testify. Now, as I said, there’s going to need to be evidence on that, not just submissions from counsel.
MS. LE: All right. Thank you, Your Honour
[16] Following a brief adjournment, the Court entered the voir dire. Crown counsel tendered the subpoena and affidavit of service, which were entered as exhibits. However, the trial judge refused to admit unsworn notes of a conversation between Ms. Strongarm and a commissioner who had been attempting to serve the subpoena.
[17] Crown counsel then led evidence from Cst. Smith, who had taken the video statement. He confirmed that Ms. Strongarm’s eye was beginning to swell shut at the time. He stated that she was upset and emotional but that they were able to speak to her “quite easily” and did not pressure her or offer any inducement for giving a statement. The video was played and entered as an exhibit on the voir dire.
[19] The voir dire was reconvened on September 28, 2021. Crown counsel advised that she had only one additional piece of evidence, that being an affidavit sworn by Cst. Smith, who had again spoken to Ms. Strongarm. Defence counsel objected, explaining that she had understood Cst. Smith would be called to testify when the affidavit was tendered. The trial judge advised Crown counsel that viva voce evidence was required, as a voir dire is a trial, and that “the Crown would need an admission for [the affidavit] to be admissible”. Crown counsel responded by stating that her only additional submission was that a further unsuccessful attempt had been made to get Ms. Strongarm to attend court. The trial judge replied as follows:
THE COURT: Well again, I think as we discussed last date, in order to get evidence in, it has to be -- well, in order -- in order for there to be evidence, we have to have viva voce evidence and submissions by counsel are not evidence from which I can draw any conclusion from. So -- so we’re at the -- the stage we were at last date in that --
[20] In response, Crown counsel cited R v F. (W.J.), [1999] 3 SCR 569 [F. (W.J.)], for the proposition that there is no absolute rule that evidence must be called on the issue of necessity. The trial judge noted that in F. (W.J.), the witness had stopped testifying, which would demonstrate necessity, while in this case, the evidence was as follows:
In this particular case, what evidence I have is the video in which the young woman appears to be very afraid. She is speaking, crying at some point, she thinks, throughout most of it. That was on the date in question.
And then the other evidence would be the evidence of the Facebook which has been admitted as evidence before the Court of Jacky Lachance’s Facebook page where he says (as read)
Danelle is a fucking rat. I got picked up because of that cunt. Word all my Posse brothers and sisters. Hit her up. Word. Orders.
[21] Crown counsel pointed out that the other evidence of necessity was the service of the subpoena on July 28, 2021. When asked by the trial judge if she sought an adjournment to call Cst. Smith, Crown counsel declined and indicated she was prepared to make submissions relating to the admissibility of the video. Defence counsel initially took the position that she would agree to the admission of Cst. Smith’s affidavit only if he was available to be cross-examined. However, following a brief adjournment for an unsuccessful attempt by the Crown to locate Cst. Smith, defence counsel agreed that the affidavit could be admitted.
[24] The trial judge delivered the voir dire decision on September 28, 2021. He dealt first with whether he could take account of statements made by Crown counsel in relation to the actions of Ms. Strongarm when she was called to testify...
...He summarized his understanding of the law as to the nature of the evidence that is required, as follows:
The decisions of the Court are decisions that are to be founded on evidence and I find that submissions of counsel are not evidence. We oftentimes made decisions on submissions from counsel and then such as in relation to judicial interim release.
However, there are cases and have been -- number of them where defence says, I do not accept the submissions of counsel and evidence is thus called. And the reason for that is because evidence has to be -- decisions must be made on evidence or at least submissions that are admitted. In this case I do not have that.
So I find that I disagree with the statement that the Court has a discretion to find that it is necessary for -- necessary for hearsay statement to be admitted even without evidence having been specifically adduced on the voir dire. The -- that only applies to -- only applies in the cases -- case where there is evidence before the court and not in times in the courtroom and the incident happens that shows that the evidence is not available.
So I can only rely on the evidence before the Court and not submissions of fact from counsel.
[25] Having established this foundation, the trial judge reviewed the evidence of necessity. He noted that Ms. Strongarm did not testify on the first court date but was not subpoenaed to testify when the trial reconvened on September 28. He pointed to Mr. Lachance’s August 8, 2020, Facebook message, which referred to her as a rat and directed that his posse should “hit her up”. He observed that she appeared to be very fearful on the video, but that, notwithstanding her fear, she gave a detailed statement. As to the interaction with Cst. Smith on September 15, 2021, he said this:
She was spoken to by Constable Smith, the officer who took her original statement, on September the 15th where she -- where according to his affidavit which has been admitted in evidence -- she stated that he had -- that she had not been threatened by anyone but that she was fearful of being in court and experiences anxiety, panic attacks, and PTSD as a result of being in court.
[26] The trial judge asserted, citing R v Bradshaw, 2017 SCC 35, [2017] 1 SCR 865, that to admit the evidence of the witness without the benefit of cross-examination is an exception to the well-established rule and requires unusual circumstances. He noted the following cautionary statement by the Court in F. (W.J.):
[44] …if one finds necessity too readily one risks depriving the defence of crossexamination when, with more diligence, it would have been available. A witness cannot be excused from testifying because the witness is not in the mood or is generally fearful of the process…
[27] The trial judge allowed that he did not suggest that Ms. Strongarm was “not in the mood” but that she had indicated that she was fearful of the process. He emphasized that in F. (W.J.), the Court had observed that excusing a witness because they were generally fearful “might create an incentive for witnesses, who would rather not endure the rigors of cross-examination, to ‘clam up’” and that “[t]he simple answer to this concern is that fear or disinclination, without more, do not constitute necessity...
...He then summarized his conclusions on the issue of necessity:
I find that the witness did express fear of testifying and did not testify in the prior date for the trial. However no further efforts appear to have been made to have her attend to court today to give her evidence with the benefit of aids allowed by the Criminal Code, i.e. screens, CCTV, a support person or support animal.
There was a – the officer contacted him [sic] and received information from her, however he did not subpoena her or have her attend to court. No indication that any support was – was offered to her other than CCTV.
So I find in this particular case that necessity has not been met in these circumstances. I deny the application for her evidence to be admitted under the principled exception to the hearsay rule.
C. The acquittal decision
[31] The trial judge next commented that he must keep the difficulties with eyewitness identification in mind, referring to R v John, 2021 SKCA 83 at para 18, 405 CCC (3d) 184, where the following passage in R v Field, 2018 BCCA 253, 362 CCC (3d) 401, leave to appeal to SCC refused, 2019 CanLII 413, was adopted:
(i) Eyewitness evidence by a stranger: Experience has shown that eyewitness evidence proffered by a stranger to the accused is the least reliable identification evidence. It has been described as “inherently unreliable”: R. v. M.B., 2017 ONCA 653at para. 29. In light of the many instances in which identification has proved erroneous, the trier of fact must be cognizant of “the inherent frailties of identification evidence arising from the psychological fact of the unreliability of human observation and recollection”: R. v. Burke, [1996] 1 S.C.R. 474 at para. 52.
[32] Having sounded this cautionary note, the trial judge assessed the identification evidence. He observed that Cst. Willard was a stranger to Mr. Lachance, had never met him before that night or seen him since, and that when he identified Mr. Lachance, he was the only unidentified male person in the courtroom and he was seated in the prisoner’s box wearing orange prison attire. He emphasized that Cst. Willard had mere seconds when he was able to observe the person on the deck and identify them. He then described the difficult circumstances faced by Cst. Willard at the time, as follows:
Also in terms of the circumstances surrounding the observation, I note that in an attempt to get away from the danger he fell sideways into tree. Because he had fallen into the tree, he was not able to get to his side arm. He stated he was in absolute fear, he was devastated. He thought that he was going to lose his life. He stated he panicked. All of this was an understandable reaction but it must be considered in determining the reliability of his identification evidence.
His ability to describe the person who pointed the gun; when asked to describe, he was not able to give a description of the person, nor recall what the person was wearing. When asked what his hair looked like he stated that it looked like the accused sitting opposite him in the courtroom. He gave no further description.
[33] Having finished his summary of the law and the facts relating to the identification evidence, the trial judge stated this conclusion:
On the basis of these reasons, I find that the identification of Mr Lachance as the one holding the gun to be unreliable and of little probative value. I do not find Constable Willard to be a dishonest witness, just mistaken as a result of the stress that he was placed under that night
[38] Having concluded his analysis, the trial judge found Mr. Lachance not guilty on all counts,...
C. Did the trial judge err by refusing to accept Crown counsel’s unsworn representations as evidence in the hearsay voir dire?
[91] The Crown submits that the trial judge refused to accept Crown counsel’s unsworn representations as evidence in the hearsay voir dire because he erroneously held that he could only consider viva voce testimony. It asserts that there are many cases which confirm that counsel submissions may be considered when determining the admissibility of evidence or an application for witness accommodation. It notes, for example, that in R v Smith, [1992] 2 SCR 915, the Supreme Court of Canada upheld the trial judge’s decision to rely on Crown counsel’s unsworn factual submissions when deciding to order that children be permitted to testify behind a screen. Similarly, in R v Hoyles, 2018 NLCA 46 at para 11 [Hoyles], Hoegg J.A. made the following comment as to the nature of the evidence required on such application:
[11] I would first observe that evidence is not always required to support an application under sections 486.1(2) or 486.2(2). For instance, the nature of the offence, a factor for consideration in both sections, is a matter of record. Other factors, like the age of the witness, whether the witness has mental or physical disabilities, the nature of the relationship between the witness and accused, may also be matters of record or patently obvious from observation. While a judge’s exercise of discretion must be properly exercised, and must have some proper basis, it can be properly exercised on the basis of the record before him or her and submissions made, as Goodridge C.J.N.F. stated at paragraph 42 of R. v. Merdsoy (1994), 121 Nfld. & P.E.I.R. 181, 91 C.C.C. (3d) 517 (Nfld. C.A.):
The exercise of discretion is generally not attended by extended arguments or evidence. An application is made and the reasons for it are expressed; it may be opposed and the reasons for opposition are expressed. Knowledge of things arising out of the trial process which must be obvious to the trial judge may be presumed.
This is not to say that formal evidence is never necessary, or that it is not a good idea. Rather, it is to say that trial judges make proper discretionary rulings day in and day out in the absence of formal evidence. In this case, the record disclosed the history of the case, the age of the complainant, and the nature of the offences, all criteria for consideration. As well, both Crown and Defence Counsel made submissions with respect to the information available.
[92] Hoyles was cited with approval in R v J.L.K., 2023 BCCA 87, which related to an appeal from an order pursuant to s. 714.1 of the Criminal Code permitting a witness to testify remotely at trial. Justice Skolrood there agreed that “sworn evidence in the form of an affidavit or viva voce testimony is not necessarily required to support an application” of that kind and that “[t]he central issue for the judge is whether there is a proper and reliable basis on which to exercise [their] discretion, having regard to the objectives of the section, the factors set out in the section, and any other relevant circumstances” (at paras 55–56)....
[93] The Crown also notes that there are numerous cases where courts have relied on counsel’s submissions when considering the necessity component of the principled exception to the hearsay rule...
[97] These authorities illustrate the principle that, as the Crown contends, there is no rule that a trial judge can rely only on viva voce evidence when determining whether the necessity component of the test to admit a hearsay statement has been met. It may be sufficiently clear from events observed by the trial judge – or, as McLachlin J. put it in F. (W.J.), self-evident – that the evidence of a witness will not be available. A voir dire is a trial within the trial and s. 655 of the Criminal Code expressly provides that an accused or their counsel may admit facts alleged against them by the Crown. Further, the trial judge may rely on uncontroversial submissions of fact by Crown counsel, provided that the accused signifies their agreement. [Emphasis by PJM]
[98] The question of whether the accused or their counsel can be found to have agreed will depend on the circumstances. A mere failure to explicitly challenge a statement of fact will sometimes be sufficient to signify consent, particularly if the facts stated by the Crown are straightforward, objective and uncontroversial, such as a statement that they have just left the witness in the hallway and the witness has refused to enter the courtroom to give evidence. However, the trial judge has the discretion – at least in the absence of an express agreement of fact between the Crown and the accused – to insist on viva voce evidence to prove any relevant fact.
[99] In light of this, the trial judge overstated the matter when he said “that’s not evidence” – “you’re going to have to call some evidence on that” – in his initial response to Crown counsel’s description of her interaction with Ms. Strongarm. That would reasonably have been understood as a statement that it was not open to him to treat the Crown’s description of events as evidence, regardless of whether Mr. Lachance was prepared to agree. In fact, he had the discretion to accept Crown counsel’s unsworn submission as proof of some or all of the events she described, absent an objection by defence counsel.
[100]...There, he said that “in order for there to be evidence, we have to have viva voce evidence and submissions by counsel are not evidence from which I can draw any conclusion”...
[101] I note that although the trial judge erred in that fashion, it appears that this may have been the result of a failure of expression rather than a lack of understanding of the law. That is demonstrated by his discussion of this issue in the voir dire decision, where he affirms that “decisions must be made on evidence or at least submissions that are admitted”, but finds that here, he “[did] not have that” (emphasis added). If the trial judge had said “that is not evidence unless defence counsel agrees”, or words to that effect, when Crown counsel made the impugned submissions, and defence counsel had then acceded to their use as proof of the facts stated, the trial judge would likely have accepted the statements as evidence.
[102] The question, then, is whether the trial judge’s error calls for intervention by this Court in light of the Graveline test; that is, might it reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal?...
[105] In my opinion, the Crown has not met this burden. For ease of reference, I will reiterate the specific submissions made by Crown counsel that were rejected as evidence of the facts. On the first trial date, she said this:
[107] The first question that arises is whether defence counsel would have agreed that these submissions could be accepted as evidence of the facts stated. Defence counsel was asked for comments only after the trial judge had told Crown counsel that there had to be some evidence about necessity. She replied that she was opposed to the application but otherwise had no comment. She did not say whether the statement by Crown counsel should be accepted as evidence. However, she did oppose the Crown’s request for an adjournment to get further evidence. In these circumstances, I am not satisfied that it is reasonably certain that she would have agreed. If she did not, it would have been open to the trial judge to exercise his discretion to require that the Crown lead evidence and it is likely that he would have done so.
[110] All of this clearly shows that the trial judge was not satisfied, based on the totality of the evidence relevant to the question of why Ms. Strongarm did not want to testify, that her evidence would not have been available if the Crown had taken what the trial judge considered to be reasonable efforts to have her available. The additional measures he referred to – a subpoena and testimonial aides – responded to that evidence rather than asserting a universal requirement laying down a rule and thus cannot be said to signal an error of law. Taking all of this into account, I am unable to conclude that the trial judge would not have insisted on additional evidence and had the same concerns as to proof of necessity even if he had accepted Crown counsel’s submissions as agreed facts. I am accordingly unable to find with a reasonable degree of certainty that the bottomline outcome of an acquittal may well have been different.
[111] For these reasons, I am not satisfied that the outcome may well have been different if the trial judge had recognized that he could rely on the Crown’s factual submissions. In the result, while the trial judge erred in law when he stated that he could not accept the submissions of Crown counsel as evidence, I find that the appeal on this ground must be denied.
D. Did the trial judge apply the wrong legal test in determining whether necessity had been proven on the hearsay voir dire?
[114] As the Crown notes, there is no rule that a witness who says they will not testify must be subpoenaed or that the Crown must seek a material witness warrant. However, the trial judge did not suggest otherwise. Nor is there a rule that a recalcitrant witness can never be subpoenaed or that the Crown should never seek a warrant if the witness is vulnerable. The question of whether the failure to issue a subpoena or to seek a warrant, like the lack of an offer of testimonial aids, should be taken into account when deciding if the Crown has discharged the onus to prove necessity depends on the circumstances. Here, given the inconsistent evidence as to why Ms. Strongarm would not attend, the trial judge was correct to do so. The weight to be accorded to that factor was within the province of the trial judge, provided that he did not act unreasonably and made his decision in accordance with the governing legal criteria.
[115] Having considered the evidence and the voir dire decision in this way, I am satisfied that the trial judge adopted and applied the correct legal test. His reasons reflect the fact that he relied principally on the leading decision in F. (W.J.). It is apparent from his analysis that he was alive to the fact that the issue was whether Ms. Strongarm’s evidence could be available, and that, as the Court said in F. (W.J.), fear of the process and disinclination to testify, without more, do not make out necessity. I would again emphasize that the factors that led him to find that necessity had not been proven were not based on arbitrary categories and did not reveal a failure to appreciate that courts must be flexible when assessing necessity. Rather, they were squarely rooted in the evidence and in the lack of evidence, including as to the potential impact on Ms. Strongarm beyond the distress she might suffer on the day of trial. Further, I am unable to say that he acted unreasonably when weighing those circumstances
[116] In the result, I find that there was no error of law by the trial judge of the kind alleged by the Crown in making the necessity decision. I would accordingly also dismiss the appeal based on this ground.
V. CONCLUSION
[117] For the foregoing reasons, I would dismiss the Crown’s appeal in its entirety.
R. v. Bruzzese, 2023 ONCA 300
[May 1, 2023] Reasonable Doubt can Arise From the Absence of Forensic Evidence [Reasons by Roberts J.A. with K. Feldman and S. Coroza JJ.A. concurring]
AUTHOR’S NOTE: It is trite law that a reasonable doubt can arise from the absence of evidence. However, when that is applied to the facts of a case sometimes jurists are uncomfortable with the idea that the Crown cannot prove things by reference to an absence of evidence, but the Defence can rely on the absence of evidence to make submissions about alternative possibilities. This is particularly so for jurists from a civil background where the stakes are always fair to both sides - neither can rely on the absence of evidence as defence lawyers in criminal cases. Here the trial judge did not think a defence lawyer could put to the jury that the it was possible that the Crown witness was actually the culprit because he had blood on his clothes while the accused had none. The trial judge, in error, ruled that defence needed evidence that blood would have come on his clothes in the circumstances of the assault before making such a submission to the jury. This is a good case to keep in your back pocket for unexpected opposition in a pre-charge conference to arguments you are entitled to make.
Background
[4] On September 2, 2018, the appellant and Mr. Manford met for the first time at a Shoeless Joe’s bar in Guelph. They left together and continued drinking at a Crabby Joe’s bar. There, they met Konrad Karcz. At Mr. Manford’s invitation, the three men went to Mr. Manford’s place and continued drinking. Mr. Karcz testified that the appellant provided cocaine for the three of them, but that Mr. Manford angered the appellant by consuming the lion’s share of the cocaine.
[5] Mr. Karcz testified that the appellant threatened to kill Mr. Manford at several points during the evening and that Mr. Karcz persuaded the appellant to leave. He said that Mr. Manford followed them to the nearby parking lot of a Food Basics store. According to Mr. Karcz, the appellant again threatened to kill Mr. Manford unless Mr. Karcz convinced him to go home. Mr. Karcz said that his efforts to persuade Mr. Manford to leave were unsuccessful, Mr. Manford pushed him away and the appellant then approached Mr. Manford. According to Mr. Karcz, the appellant handed him a knife and told him to kill Mr. Manford, but he refused and walked away. Mr. Karcz testified that the appellant took his knife back, and then made two stabbing motions with a knife towards Mr. Manford’s stomach. He fell to the ground. Mr. Karcz said the appellant then told him that he had stabbed Mr. Manford twice.
[6] The surveillance video from a nearby store showed that the appellant and Mr. Karcz left the Food Basics parking lot and shook hands before they went their separate ways. Neither went to Mr. Manford’s aid or called for help or the police. Fortunately, a passerby saw Mr. Manford and called for help, which saved his life.
[8] The first, consisting of DNA testing from the Centre for Forensic Science, showed that the blood stains on the appellant’s shirt that were sent for analysis did not contain any of Mr. Manford’s DNA, although Mr. Manford’s DNA could not be excluded from the blood stains on Mr. Karcz’ shirt. The second, the hospital report, included a toxicology test which stated that Mr. Manford’s urine was negative for cocaine.
[9] Mr. Karcz was the Crown’s principal witness on whose evidence the Crown’s case heavily depended. Mr. Manford had little recollection of the evening’s events and none of the stabbing. He did not testify that he heard the appellant make any threats. The appellant did not testify.
[10] The appellant submits that the trial judge made two reversible errors in his jury charge that caused trial unfairness that cannot be overcome by the application of the curative proviso, and so require a new trial:
i. The trial judge erred by taking away from the jury the defence position that the absence of Mr. Manford’s blood on the appellant’s clothing could give rise to a reasonable doubt as to the appellant’s guilt.
(ii) Did the trial judge err in law in his jury charge by removing from the jury’s consideration the defence argument that the absence of Mr. Manford’s DNA on the appellant’s clothing gave rise to a reasonable doubt?
[14] The thrust of the defence argument was that it was not the appellant, but Mr. Karcz, a disreputable witness whose clothing was stained with Mr. Manford’s blood, who stabbed Mr. Manford. In closing submissions, defence counsel invited the jury to infer from the absence of Mr. Manford’s blood on the appellant’s clothing that the appellant was not the stabber:
If Mr. Bruzzese were the stabber we would expect him to have some of Mr. Manford’s blood or DNA on his clothes.
That there’s no evidence of any such DNA, that is strong circumstantial evidence that Mr. Bruzzese was not the stabber.
[15] There was no Crown objection to this defence submission. However, the trial judge, of his own motion, concluded that the inference was not available because there was no evidence one way or the other that Mr. Manford’s blood or DNA would necessarily have transferred to his assailant, and because there was no conclusive evidence that Mr. Manford’s blood or DNA was not present on the appellant’s clothing since his t-shirt was tested only in the spots where visible blood stains were identified.
[16] Over defence counsel’s objections, the trial judge told the jury at paragraph 171 of his charge that they could not draw the inference suggested by defence counsel in his closing submissions:
[Defence counsel] said to you that one would expect Mr. Bruzzese to have Mr. Manford’s DNA on his clothes. We have no evidence with respect to that one way or the other. We only have evidence of what was found. [Emphasis added.]
[18]...There was evidence that the appellant’s t-shirt underwent forensic testing, and Mr. Manford’s blood was not found on it. While the importance of the absence of forensic evidence may vary from one case to the next, as this court instructed in Hassanzada, at para. 72, counsel “are entitled to make submissions about the effect of absence of evidence of a forensic connection between an accused and the scene of a crime.” [PJM Emphasis]
[20]...I read defence counsel’s impugned submission as going no further than an argument that the absence of evidence of Mr. Manford’s blood on the appellant’s clothing gives rise to a reasonable doubt because, in light of Mr. Manford’s blood being found on Mr. Karcz’ clothing, it provides a reason to question Mr. Karcz’ testimony.
[21] However, even if the impugned defence submission could be read as an invitation to speculate as Crown counsel suggests, the trial judge’s instruction went too far. There is a real risk that the trial judge’s direction that “[w]e only have evidence of what was found” would have been understood by the jurors as an instruction that they were only to draw inferences giving rise to a reasonable doubt from facts that were in evidence, namely, that Mr. Karcz had Mr. Manford’s blood on his clothing, but not from the absence of any blood on the appellant’s clothing. This is incorrect in law.
[22] It is a well-established principle that the absence of evidence may raise a reasonable doubt about the guilt of an accused or contribute to a conclusion by the trier of fact that the case for the Crown falls short of the standard of proof the law demands: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 28, 36- 37; R. v. Lifchus, [1997] 3 S.C.R 320, at para. 39; R. v. Darnley, 2020 ONCA 179, 387 C.C.C. (3d) 200, at para. 33; R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 38. This includes the absence of evidence of a forensic connection between a crime and an accused: Hassanzada, at paras. 68, 71; R. v. Tebo, 175 C.C.C. (3d) 116, at paras. 5-8, 12; R. v. Bero, 151 C.C.C. (3d) 545, at paras. 61- 64.
[23] The trial judge’s direction therefore undercut the defence by precluding the jury from considering this path to reasonable doubt based on the absence of evidence.
[25]...The charge must leave the jury with an understanding of how the evidence or lack of evidence relates to the issues that are left to the jury for their decision: R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267, at para. 44; R. v. Megill, 2021 ONCA 253, 405 C.C.C. (3d) 477, at para. 39; Villaroman, at para. 28. However, in light of the trial judge’s clear direction about only having evidence as to what was found, the absence of any connection in the charge between the absence of forensic evidence and the concept of reasonable doubt makes it highly unlikely that the jury would have understood that it was open to them to consider the significance of the absence of forensic evidence as raising a reasonable doubt. At best, the jury would have been confused.
[26] This was a material error. The submission that the absence of forensic evidence raised a reasonable doubt about the appellant’s guilt represented a major prong of the defence. In the context of the entire charge, the trial judge’s direction in paragraph 171 of the charge amounted to misdirection that warrants a new trial.
(iii) Did the trial judge err in law by failing to correct Crown counsel’s closing submission regarding the toxicology report?
[27] The parties submitted the evidence of Dr. Leigh Bishop, the Chief of Surgery at Guelph General Hospital, as an Agreed Statement of Fact. Dr. Bishop provided a summary of Mr. Manford’s physical condition while in the hospital. After stating Mr. Manford’s blood-alcohol level, Dr. Bishop noted that “a toxicology screen of Mr. Manford’s urine was negative for cocaine”.
[28] In his closing submissions, defence counsel noted that the “absence of cocaine from Mr. Manford’s system” was one of several “damning contradictions to assertions made by Mr. Karcz under oath”. It formed part of his argument that Mr. Karcz was an unreliable witness who was not telling the truth about Mr. Manford’s stabbing, because Mr. Karcz had stated that the three men had consumed cocaine
[29] With respect to the toxicology evidence, the Crown’s closing submission was as follows:
The cocaine, because – my friend argues because of the urine screen done on Mr. Manford at the hospital, comes back negative for the cocaine, that that definitively means that Andrew Manford had not done cocaine. And I’m going to suggest to you that [there was] no expert evidence to buttress that position. Andrew Manford lost about half of his blood that night as a result of the stabbing. And the cocaine, if ingested, had to have been ingested – was – was ingested like two or three hours earlier. There’s no evidence that – that cocaine can make its way into your urine, but at the time of his screening, but I’m just putting it out there.
[31] Neither the trial judge nor defence counsel revisited the issue...
...Rather, in his summary of the Crown’s position in his charge, the trial judge repeated and thereby reinforced the Crown’s argument, stating that the Crown’s position was that: “Mr. Karcz should be accepted that the three used cocaine that night; the toxicology evidence is not such that it should discount Mr. Karcz’ evidence” (emphasis added).
[33]...While they do not have an “inflexible obligation” to correct every misstatement by counsel, trial judges have a duty, independent from any objection or lack of objection by counsel, to redress any prejudice to an accused that is caused by the Crown’s closing submission to the jury that “contains gross inaccuracies, seriously misstates the evidence or misuses the evidence in connection with the inferences to be drawn”: Rose, at para. 124; R. v. Clyke, 2021 ONCA 810, 158 O.R. (3d) 641, at para. 39; R. v. Jones, 2011 ONCA 584, 277 C.C.C. (3d) 143, at para. 38; R. v. Welsh, 2013 ONCA 190, 115 O.R. (3d) 81, at para. 201. Failure to do so amounts to an error of law: R. v. Romeo, [1991] 1 S.C.R. 86, at p. 95; Clause, at para. 38. Moreover, there was no “tactical” or other advantage in defence counsel not pursuing his initially expressed concern about the Crown’s submissions.
[34] Though counsel are entitled to a “fair degree of latitude” in closing submissions to the jury, there are clear limits on Crown advocacy: R. v. Boudreau, 2012 ONCA 830, at para. 15. The Crown “must not misstate the facts or the law”, “invite the jury to engage in speculation or express personal opinions” about the evidence, or “advert to any unproven facts”: Boudreau, at para. 16; R. v. Rose, [1998] 3 S.C.R. 262, at para 107.
[35] Particularly, in this case, there was a real risk that the jury would have accepted the Crown’s scientific misstatements as scientific fact. Courts have rightfully been wary about the possibility that juries will uncritically accept purported scientific evidence placed before them: R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 90, leave to appeal refused, [2010] S.C.C.A. No. 125; Parliament v. Conley, 2021 ONCA 261, 155 O.R. (3d) 161, at para. 44>, leave to appeal refused, [2021 S.C.C.A. No. 222]; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 17. While this risk is stronger in the context of expert evidence, such a risk may also be present with purported scientific evidence inappropriately raised by the Crown, as the jury may still be more likely to defer to the apparent authority of the scientific misstatements when made by the Crown.
[36] Importantly, the toxicology report was part of the Crown’s case. It was an agreed fact. It was therefore not open to the Crown to try to resile in this way from its own evidence that constituted an admission. Further, there was absolutely no evidence to support the Crown’s improper attack on the toxicology screen or its results. The Crown’s statements about the meaning of the toxicology screen, elimination rates of cocaine, and the effects of blood loss on those rates and the screen results required expert evidence. It was not open to Crown counsel to state that it was up to defence to call this evidence that formed part of the Crown case; this amounted to a clear invitation to the jury to reverse the burden of proof. The onus was squarely on the Crown to fill in any gap.
[37] The trial judge’s summary of the Crown’s position on this issue exacerbated the Crown’s errors. There was no basis to state that the toxicology screen could not be used to discount Mr. Karcz’ evidence. The toxicology evidence clearly contradicted Mr. Karcz’ evidence that Mr. Manford used cocaine that evening. It would have been entirely speculative for the jury to conclude that there was cocaine in Mr. Manford’s system that did not appear on the toxicology report, that he had already eliminated the cocaine before his urine was tested, or that the toxicology report was erroneous.
[38] The discrepancy between the toxicology report and Mr. Karcz’s evidence was a major contradiction that should have been left to the jury as it could have seriously undermined Mr. Karcz’s evidence and the Crown’s suggested motive for the stabbing...
Disposition [42]
I would allow the appeal and order a new trial.
R v Baker, 2023 ABCA 136
[April 25, 2023] CC 745.6 Application to Reduce Parole Ineligibility Threshold Hearing [Watson and Wakening JJ.A.]
AUTHOR’S NOTE: This case provides a thorough analysis of the threshold judicial hearing on whether an offender can apply to reduce their parole ineligibility before a jury. The Court of Appeal was not asked to opine on what the test should be in light of Charter considerations and the reasons can be taken as an invitation challenge the current definition. The legislated "substantial likelihood that the application will succeed" standard means: the likelihood that the applicant will succeed approaches 50%. Here this standard was met due to the combination of a murder conviction arising out of self-induced intoxication and a significant multi-year effort at rehabilitation by the offender in prison.
I. Introduction
[1] The appellant appeals to this Court pursuant to s 745.62 of the Criminal Code from a decision of a judge under s 745.61(1) whereby the judge determined that the appellant had not “shown, on a balance of probabilities, that there is a substantial likelihood that [the appellant’s] application [pursuant to s 745.6 of the Code] will succeed”: R v Baker , 2021 ABQB 516, [2021] AJ No 918 (QL) (“Reasons”).
[4] The appellant’s application under s 745.6 of the Code was for “a reduction in the number of years of imprisonment without eligibility for parole” in relation to his conviction for first degree murder dated October 19, 2007. He was sentenced to life imprisonment without eligibility for parole for twenty-five years: see R v Baker, 2009 ABCA 252, 246 CCC (3d) 520, affirmed 2010 SCC 9, [2010] 1 SCR 329
[5] The screening judge’s conclusion can be encapsulated in this paragraph from his Reasons at para 29:
29 Given the brutality of the murder, the strong opposition to the application by the family of Olivia Talbot, coupled with the concerns of Dr. Lau and Dr. Morrison, I am not persuaded that there is a substantial likelihood that the Applicant will be able to convince all 12 jurors that his period of parole eligibility should be reduced.
[6] The effect of the judge’s determination on July 7, 2021 was not only to decline to refer the case to the Chief Justice to “empanel a jury to hear” the appellant’s application for a reduction in the period of parole ineligibility on his life sentence, but also, by operation of s 745.61(4) of the Code, to prevent the appellant from making another application under s 745.6 of the Code less than five years since the judge’s determination; a further application could not be made by the appellant therefore until after July 7, 2026.
[7] For reasons set forth below, we allow the appellant's appeal. In our respectful view, even if the “substantial likelihood that the application will succeed” standard requires a determination that the applicant is more likely to succeed than not, a view that we do not adopt, the appellant has met that standard. Accordingly, the first instance judge erred in his determination of the appellant's application for a jury review of his parole ineligibility.
[10] It is important to note that it is not up to the jury to determine whether the period of parole ineligibility should be reduced. The Parole Board makes the final decision. In R v Bissonnette, 2022 SCC 23 at para 147, 469 DLR (4th) 387, the Supreme Court of Canada made clear that the existence of an opportunity to seek parole was one of the ideals and indicia of the fairness and justice of our criminal justice system. In that case, the Court also expressed the expectation that, in the end, the “protection of the public is the paramount consideration in the Board's decisionmaking process, but the Board also takes into account other factors such as the gravity of the offence and its impact on victims.” With that in mind, we conclude that the wisdom of a jury followed by the review of the Parole Board, if allowed by the jury, accommodates the policy expressed in Bissonnette.
II. Statutory Analysis
[13] Before the judge and before this Court, the appellant did not challenge the constitutionality of the above-quoted legal standard of “substantial likelihood that the application will succeed” as enacted by Parliament in 2011 (thus after his offence). As discussed below, there have been successful constitutional challenges leaving those provinces with a “reasonable prospect” standard in substitution rather than “substantial likelihood that the application will succeed” as the standard. Regardless, “substantial likelihood” is still in force and applicable in Alberta: see eg R v Morrison, 2012 ABQB 619, 293 CCC (3d) 416 per Martin J, as she then was. The appellant submits that he met that standard. Based on the evidence that was before the screening judge and which the appellant expects to present, this Court agrees.
14] The relevant Code provisions commence with s 745.6(1) which reads:
745.6 (1) Subject to subsections (2) to (2.6), a person may apply, in writing, to the appropriate Chief Justice in the province in which their conviction took place for a reduction in the number of years of imprisonment without eligibility for parole if the person
(a) has been convicted of murder or high treason;
(a.1) committed the murder or high treason before the day on which this paragraph comes into force;
(b) has been sentenced to imprisonment for life without eligibility for parole until more than fifteen years of their sentence has been served; and
(c) has served at least fifteen years of their sentence.
[17] The related criteria in s 745.63(1) and s 745.63(1.1) are as follows:
Hearing of Application
745.63 (1) The jury empanelled under subsection 745.61(5) to hear the application shall consider the following criteria and determine whether the applicant’s number of years of imprisonment without eligibility for parole ought to be reduced:
(a) the character of the applicant;
(b) the applicant’s conduct while serving the sentence;
(c) the nature of the offence for which the applicant was convicted;
(d) any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section; and
(e) any other matters that the judge considers relevant in the circumstances.
Information provided by victim (1.1) Information provided by a victim referred to in paragraph (1)(d) may be provided either orally or in writing, at the discretion of the victim, or in any other manner that the judge considers appropriate.
[18] Section 745.63(3) requires the decision of the jury in favor of reduction to be “by unanimous vote”...
[19] The crux of the appeal is whether the appellant should be taken to have established a “substantial likelihood [his] application ... will succeed”. This necessitates interpretation of that standard of “substantial likelihood [his] application ... will succeed”. We commence with four contextual points related to the overall framework in which this standard of proof is operational.
(a) Contextual Points Around Interpretation of Section 745.61(3) of the Code
[22] Second, cases also seem to have retained the view that the evidence which is relevant to justification of review and reduction of ineligibility is principally evidence related to changes in the appellant’s situation and the appellant’s ability to re-engage with society (even if subject to controls) outside of prison. Applying the list of factors Parliament has specified since 1997 and in the 2011 Code provisions, cases place much emphasis on evidence relevant to the present state or condition of the offender at the time of the application, usually compared to what it was at the time of the offence.
[23] Third, even cases which found the “substantial likelihood” standard in the 2011 Code provisions to be unconstitutional when applied retrospectively to cases of offences prior to 2011, accept that Parliament was entitled to set a “reasonable prospect” standard as it did in 1997. Consequently, having found the “substantial likelihood” test to be inoperative as to pre-2011 murders (adapting here the language of s 52 of the Constitution Act, 1982), those cases have put forward a common law standard of “reasonable prospect” in substitution. Those cases have also plainly characterized and applied that “reasonable prospect” standard as being more exacting than something of a “speed bump” prior to jury review. Indeed, several reported cases have denied jury reviews on that “reasonable prospect” standard. Accordingly, the cases appear to set forth a consensus that a real screening function is involved.
(c) Focus Remains on Offender’s Present State or Condition
[28] Several cases refer to the decision of the Supreme Court of Canada in R v Swietlinski, [1994] 3 SCR 481 at para 12 wherein Lamer CJC opined that the “primary purpose of s 745 hearing is to call attention to changes which have occurred in the applicant’s situation which might justify imposing a less harsh penalty upon the applicant” [emphasis in original]. An example is R v Purdy, 2020 BCSC 231, [2020] BCJ No 293 (QL). Swietlinski was looking at the following language in s 745(2) of the Code as it was in 1994, being as follows:
745. (1) Where a person has served at least fifteen years of his sentence
(a) in the case of a person who has been convicted of high treason or first degree murder, or
(b) in the case of a person convicted of second degree murder who has been sentenced to imprisonment for life without eligibility for parole until he has served more than fifteen years of his sentence,
he may apply to the appropriate Chief Justice in the province in which the conviction took place for a reduction in his number of years of imprisonment without eligibility for parole.
(2) On receipt of an application under subsection (1), the appropriate Chief Justice shall designate a judge of the superior court of criminal jurisdiction to empanel a jury to hear the application and determine whether the applicant's number of years of imprisonment without eligibility for parole ought to be reduced having regard to the character of the applicant, his conduct while serving his sentence, the nature of the offence for which he was convicted and such other matters as the judge deems relevant in the circumstances and the determination shall be made by not less than two-thirds of the jury. [..... Emphasis added]
[29] No standard for a preliminary assessment by the Chief Justice was specified by the Code at the time. But the cases generally accept the focus as set out in Swietlinski. No one debated before us whether that aspect of the focus had shifted after 2011.
(d) Constitutional Debate about the Standard of Proof
[30] We hasten to point out that we are not expressing an opinion on the constitutional debate...
III. Principles of Statutory Interpretation
[46] The governing principles of statutory interpretation are straightforward: Abbas v Esurance Insurance Co of Canada, 2023 ABCA 36 at para 48 per Watson & Wakeling, JJ.A. (“The governing principles of statutory interpretation are straightforward and not contentious”); Alexis v Alberta, 2020 ABCA 188 at para 42; 8 Alta. L R 7th 314, 333, leave to appeal ref’d, [2020] SCCA No 227 per Wakeling & Greckol, JJ.A. (“The basic approach to statutory interpretation is easy to state”) & Re: Sound v Motion Picture Theatre Ass’ns of Canada, 2012 SCC 38 at para 25, [2012] 2 SCR 376 per LeBel, J. (“The main issue in this appeal involves the well-known principles of statutory interpretation”).
[47] A court must first “read the entire statute and related statutes”: Abbas v Esurance Insurance Co of Canada, 2023 ABCA 36 at para 49 per Watson & Wakeling, JJ.A. See Re Rizzo & Rizzo Shoes Ltd, [1998] 1 SCC 27 at 41 per Iacobucci, J. (“The words of an Act are to be read in their entire context”); Attorney General v Prince Ernest Augustus of Hanover, [1957] AC 436 at 463 (H.L.) per Viscount Simonds (“no one should profess to understand any part of a statute ... before he has read the whole of it”); Panama Refining Co v Ryan, 293 US 388 at p 439 (1935) per Cardozo, J. (“the meaning of a statute is to be looked for not in any single section, but in all the parts together, and in their relation to the end in view”) & K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd, [1985] HCA 48, 157 CLR 309 at p 315 per Mason J. (“to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context”).
[48] While undertaking this task a court may detect one or more of the purposes that account for the legislation. An enactment always has a purpose: Alexis v Alberta, 2020 ABCA 188 at para 44 per Wakeling & Greckol, JJ.A. (“a tribunal must attempt to identify why the legislature passed the statute”) & H. Hart & A. Sachs, The Legal Process: Basic Problems in the Making and Application of Law 1169 (1994) (“In interpreting a statute, a court should ... [d]ecide what purpose ought to be attributed to the statute”).
[49] Statutory interpretation is fundamentally a search for the plain and ordinary meaning of the text: Abbas v. Esurance Insurance Co of Canada, 2023 ABCA 36 at para 50 per Watson & Wakeling, JJ.A.; The Queen v Secretary of State for the Environment, Transport and the Regions, ex p Spath Homes Ltd., [2001] 2 AC 349 at 397 per Lord Nicholls (“language is to be taken to bear its ordinary meaning in the general context of the statute”) & Caminetti v United States, 242 US 470 at p 485-86 (1917) per Day, J. (“Statutory words are uniformly perceived, unless the contrary appears, to be used in their ordinary and usual sense, with the meaning commonly attributed to them”).
[50] A court “must identify the potential permissible meanings of ... [the text], taking into account their ordinary meanings”: Humphreys v Trebilcock, 2017 ABCA 116 at para 109, [2017] 7 WWR 343, leave to appeal ref’d, [2017] SCCA No 228. See The Queen v Secretary of State for the Environment, Transport and the Regions, ex p Spath Homes Ltd, [2001] 2 AC 349 at p 397 per Lord Nicholls (“language is to be taken to bear its ordinary meaning in the general context of the statute”) & Caminetti v United States, 242 US 470 at p 485-86 per Day, J. (“Statutory words are uniformly presumed, unless the contrary appears, to be used in their ordinary and usual sense, and with the meaning commonly attributed to them”).
[52] “A permissible meaning is one that a reasonable reader who uses the language correctly would give the text at the time of its production”: Alexis v Alberta, 2020 ABCA 48 at para 41 per Wakeling & Greckol, JJ.A.
[57] But if there is more than one plausible meaning, a court must select the meaning that is most faithful to the purpose that accounts for the text: Humphreys v Trebilcock, 2017 ABCA 116 at para 109, [2017] 7 WWR 343 (“If there is more than one potential meaning [of a statutory provision], the court must select the option that best advances the purpose that accounts for the text”); Celgene Corp. v Canada, 2011 SCC 1 at para 21; [2011] 1 SCR 3 per Abella, J. (“The words, if clear, will dominate; if not, they yield to an interpretation that best meets the overriding purpose of the statute”); Hamilton v Rathbone, 175 US 414 at p 419 (1899) per Brown, J. (“where a statute is ... susceptible upon its face of two constructions, the court may look into ... the purpose intended to be accomplished by it, to determine its proper construction”) & Bell ExpressVu v Rex, 2002 SCC 42 at para 62, [2002] 2 SCR 559 per Iacobucci, J. (“to the extent this Court has recognized a ‘Charter values’ interpretive approach, such principle can only receive application in circumstances of genuine ambiguity”).
[65] Helpfully, this Court is not operating with a complete dearth of guidance on the possible meaning of the “substantial likelihood that the application will succeed” standard and its distinction from a mere prima facie case standard or from a “reasonable prospect” standard.
(a) Interpretation of “Substantial Likelihood that the Application Will Succeed” Standard
[85] The language of Parliament has made clear that a mere possibility of success is not good enough. Mere possibility would have it that the applicant would only have to make his case in front of the jury and the screening would be a very low bar. As noted earlier, the courts which have found constitutional infirmity have advanced a standard which has not been a low bar. Martin J drew strength from the position in Link and other cases. Our view is somewhat more exacting. But in practical terms, arguably, the positions are not miles apart.
[86] Therefore, Parliament’s language includes a statement as to what is the purpose to be served by the standard of proof proven to have a “substantial likelihood”. As noted in Canada 3000 Inc (Re), 2006 SCC 24 at para 36, [2006] 1 SCR 865: “The notion that a statute is to be interpreted in light of the problem it was intended to address is as old at least as the 16th century.” Parliament’s direction is that the substantial likelihood is that the applicant will “succeed” if given the opportunity to present to a jury. Put another way, the screening judge would be entitled to refuse to send the matter on to a jury if it is instead shown that the process would likely be an exercise in futility as no reasonable jury would likely reduce the ineligibility period.
(c) Conclusion
[97] In sum on this point, we conclude that the total expression “substantial likelihood [the] application will succeed” means that the likelihood the applicant will succeed approaches 50 percent because there is evidence that has sufficient cogency, materiality and strength of influence.
(a) Decision of the Screening Judge and Ground 3
[101] The screening judge reviewed and adopted the analytic framework set out in Morrison before turning to the criteria outlined in s 745.63 of the Code. He summarized the evidence, quoting from some of the written reports. His analysis of the relevant factors and his conclusion were set out in his Reasons as follows:
29 Given the brutality of the murder, the strong opposition to the application by the family of Olivia Talbot, coupled with the concerns of Dr. Lau and Dr. Morrison, I am not persuaded that there is a substantial likelihood that the Applicant will be able to convince all 12 jurors that his period of parole eligibility should be reduced.
30 In the result, the Applicant has not established on a balance of probabilities that there is a substantial likelihood that this application will succeed, therefore, the application is dismissed.
[109] While the screening judge here follows the language of the Code, the appellant submits that his treatment of aspects of the evidence goes further than overview assessment contemplated in Morrison to adjudicate on the parole ineligibility merits. Counsel notes, for example, that the screening judge considered the lapses in conduct while in prison to be significant. Counsel submits that by comparison, the jury would hear the appellant’s testimony in explanation of his prison conduct so it was not possible to say that the jury would likely eliminate the remedy sought based on those lapses.
[110] We are persuaded that the screening judge erred in this respect. Parliament has created a difficult legal structure, forcing a screening judge to perform a screening function on the same grounds as the jury, but without having the broad discretion that the jury has, including the ability to assess the case holistically and normatively as well as from the perspective of clemency and without any real ability to directly determine how the jury would evaluate the evidence and circumstances. The plausibility and reliability of the evidence in the documents speaks for itself and is not on its face exclusionary.
[111] We also are persuaded that the screening judge did not apply the standard in Morrison or the standard that we adopt when deciding whether the appellant’s onus was met. Neither the gravity of the offence nor the perspective of the victim’s family could change; there is nothing the appellant could do about those things. As such, it was crucial for the screening judge, in completing the assessment, to determine whether the more dynamic factors within this balancing process were such that the likelihood was substantial that the jury would give serious weight to the evidence and the circumstances offered for the appellant, especially as he would have the chance to explain it, and that the jury would exercise its discretion with that in mind.
(b) Circumstances of the Offence and Offender at the Offence
[114] On November 23, 2005, the appellant shot and killed a pregnant friend and her unborn child while in a state of methamphetamine-induced psychosis. He knocked on her door and when she answered, fired four shots from a .22 rifle into her abdomen and another into her head. He then disposed of the murder weapon by throwing it in a river. He did not dispose of several spent shell casings, the cartridge for the murder weapon, or the clothes he was believed to be wearing at the time of the homicide.
[115] Within hours of the killing, while being spoken to by police as a potential witness, the appellant confessed. He provided a statement to homicide detectives wherein he detailed many of the delusions and hallucinations which motivated this killing and provided them with the facts of what transpired. Journal and computer log entries created by him in the years leading up to the homicide showed a progression into delusions, hallucinations, and psychosis which Dr. Singh described as “gross impairment of his ability to test reality around him”.
(c) Current Circumstances of the Offender
[119] The Parole Eligibility Report from CSC dated April 26, 2021, is, at least arguably, indicative of a positive outlook, compliant and constructive behaviour, and conduct consistent with general social norms. This lengthy report outlines in detail a complete history of the appellant from the time of his initial incarceration up to the date of its report The report also references a Psychiatric Risk Assessment dated March 18, 2021, from Dr Morrison and a Psychological Risk Assessment dated February 12, 2021, from Dr Lau.
[120] Dr Morrison opines that the appellant’s substance use disorder and substance induced psychotic disorder are presently in remission. The materials establish that the appellant has worked hard to address his substance abuse problems since incarceration.
[121] Upon entering Edmonton Institution, the appellant found that there were few opportunities for programming available to him. To address his rehabilitation despite this, he voluntarily enrolled in a self-study program for Addiction Counselling.
[122] He completed two core correctional programs in 2011 and 2015: the National Substance Abuse Program – Moderate Intensity and the Integrated Correctional Program – Moderate Intensity (“ICP-MI”). The appellant deposed to the benefits he acquired from both and provided a list of ten voluntary self-help seminars and programs which he attended through his time in custody.
[123] The Parole Eligibility Report stated that the appellant’s attendance at the substance abuse program was “perfect”, that he demonstrated a desire to complete the program and strive for complete abstinence, and that he worked hard to “understand his addiction”. By the end of the program, the appellant had completed three detailed relapse prevention plans related to unpleasant emotions, pleasant times with others, and social pressure to use, all of which demonstrated thought and insight into his addiction. The appellant showed “tremendous growth” as the program progressed, demonstrating improvement in his skills to manage his risky behaviour and thought patterns, to solve problems, to manage impulses and temptations, and to challenge his thoughts pertaining to substance use and violence. No further programming needs were identified at the conclusion of the program.
[124] That Parole Eligibility Report noted that the appellant was moved to minimum security rating in 2017 and was moved to Joyceville Institution in January 2018. He was transferred back to Collins Bay Institution in February 2019, due to ingestion of unprescribed Suboxone, a partial opiate agonist for the treatment of withdrawal symptoms that also contained Naloxone. This fall back resulted in 7 months in a medium rating in Ontario but then a return to the current minimum rating at Bowden Institution in Alberta.
[125] The Parole Eligibility Report also described some prison internal charges, starting with some sort of fight in 2007 shortly after arriving in prison. The other events were time separated incidents much of which seemed related to drug use relapses as to use of Tylenol 3 tablets and the Suboxone. Nevertheless, by and large the Parole Eligibility Report is rather positive about the appellant’s ability to regulate himself and about his positive and constructive attitude in his personal interaction as well as his work efforts and performance, and his insight. It appeared that the appellant was generally forthright and worked positively with institutional staff.
[127] The appellant also filed thirteen reference letters with the Court attesting to his character, the support he would receive in the community, and his focus upon living a prosocial life. The reports and letters also speak to the fact that the appellant is not living the drug addled and antisocial life that he was at the time of this killing.
[128] The material suggests that he has maintained strong ties to his family in both Ontario and Alberta; many of these same individuals attested to their continued support of the appellant and willingness to assist in his transition to the community in letters of support. He has also taken steps to help his employability if he were to be released, acquiring trades certificates in 3 types of welding, automotive painting, small engine repair, and autobody/collision damage repair.
[131] The appellant admits that he “has struggled with a second addiction (now to an opiate unrelated to his psychosis and brought on by injury and prescribed use)” and emphasizes that this addiction has not led to any “further rule breaking, anti-social, or criminal behaviour”. He suggests that, appreciating the role which opiate use has played in his life, he hassought Suboxone treatment and is compliant with a medication regime. To avoid the institutional subculture dealing in this drug, he receives this medication by monthly injection. This could be arranged outside of a prison and since Suboxone is designed to control withdrawal symptoms, it is not obvious why the appellant would desist in this pattern when faced with the prospect of going back to prison.
[134] We agree with the appellant that the material before the screening judge does not embody necessarily checkmating concerns about the appellant’s behaviour if permitted outside prison walls.
[135] As for the expert evidence, we are also persuaded that the screening judge misapprehended the effect of that evidence. The screening judge opined that the expert evidence referred to the appellant has having “stabilized”. The actual term used by Dr Morrison was that the appellant is presently “in remission”. Dr Morrison did express concern about drug relapse and “potential difficulties in relationships” which might be stressors for impulse control and intoxicant use but the specific testing he referred to was “As prior mentioned in the chapter on HCR 20 VJ and LS/:RNR, risk for future violence is assessed as low to moderate, serious physical harm is assessed. presently as low, imminent violence is assessed as low. A reassessment is recommended for 20220211.”
[138] Psychologist Lau’s report dated February 12, 2021 (less than 2 years since the Suboxone circumstances) says:
… To his credit, Mr. Baker continues to make progress in other areas of his life including education, employment and maintaining a positive and strong support network. Furthermore, his institutional behaviour has remained positive and there has been no information to suggest any further relapse into drug use. Mr. Baker recognized that his hesitancy to ask for help was his belief that he would lose trust and/or lose the progress he had made (e.g. minimum status). He verbalized his willingness to be more forthcoming regarding problems and accepting of the consequences. Although his current positive progress is encouraging, he has yet to demonstrate long term stability with respect to his stress management, emotional control and abstinence from substance use. [EKE(A) p 241]
[139] Although Crown counsel submits there is not a major discrepancy between the two versions we respectfully disagree. There is a significant difference between “most importantly absences - abstinence from substance abuse” and stability as to abstinence. The difference was enough to affect the screening judge’s impression that the appellant had been dealing with a prescribed medication and not the amphetamines that so terribly affected him years earlier.
[140] Moreover, Dr Lau’s report relies on elements of the appellant’s situation in prison that do not seem to entirely line up with the content of the Parole Eligibility Report. Moreover, Dr Lau does not seem to have personally administered tests that spoke against parole...
[141] All in all, this was not a situation where a reasonable reviewing jury would be dealing with an ungovernable or manipulative individual, skilled at dissembling or disguising his menace. The need for controls while at large or on day parole or the like are not rejected by the appellant. Nor does the evidence suggest none of those would be effective. Certainly, if he were to breach controls, he would very likely be returned to prison. His life sentence does not end with parole.
[142] We hasten to emphasize that the material for the appellant is not all favorable. Moreover, the screening judge was not required to give the appellant the benefit of the best interpretation of the evidence. But as a screening judge, he was to bear in mind that the reviewing jury would have a lot more to work with, much more recent information (past the date mentioned by Dr Morrison) and the ability to hear viva voce evidence.
[144] The feeling of the victim’s family about whether the appellant should have a jury hearing is not set out by Parliament as being a dispositive criterion (although, once again, the Hansard debate included quite an amount of discussion by those speaking in favor of the amendments about whether the predecessor provision caused stress to victim’s families by the process of calling in juries for review). From a human perspective, the position of the victim’s families will be unique to the case.
[146] No one is entitled to insist on a victim’s families taking any specific position. Nor for that matter is there any reason to anticipate a common position amongst a specific family. And more definitively, the family of a victim is not required to forgive anything. But, in our respectful view, a screening judge is not by reason of “opposition” alone given a substantive legal rationale on its own to refuse a jury hearing. The concept of “information” connotes evidence of facts relevant to the current decision, not ‘opposition’ as such.
[147] To the extent any analogy can be made to victim impact statements under s 722 of the Criminal Code, in such cases the role of a victim impact statement is not used for the purpose of dissuading the decision maker from making a legal disposition otherwise available, appropriate and just as the Crown represents the wider public interest: compare R v Bell, 2013 BCCA 463 at para 36, 344 BCAC 237 which involved a decision as to parole ineligibility for murder.
[150] In our respectful view, the screening judge did not complete the analysis required to give full effect to the Code provisions because he did not consider whether a reasonable jury, with a broad discretion, would not give effect to the evidence and circumstances in favor of the appellant, which largely spread over many years and not just recently. Further, we conclude, with respect, that he misapprehended the effect of the evidence before him on the role he was given to exercise.
V. Conclusion
[151] We are persuaded that the appellant has satisfied his onus that there is a substantial likelihood that a reviewing jury, with the advantages of viva voce evidence, and the opportunity to fully explore the opinions of the experts and to scrupulously assess the appellant as a person, would exercise its broad discretion to reduce his period of parole ineligibility. If the jury should think he still requires some more time before leaving prison, they can specify such a period. And ultimately the Parole Board will make the final decision.
[152] Accordingly, we refer the case to the Chief Justice of the Court of King’s Bench to “empanel a jury to hear” the appellant’s application for a reduction in the period of parole ineligibility on his life sentence.
[153] This decision is the judgment of the Court pursuant to s 8(1)(d) of the Court of Appeal Act, RSA 2000, c C-30.
