The Defence Toolkit – May 7, 2022

This week’s top three summaries: R v Dussault, 2022 SCC 16: s.10(b) re-consult, R v JW, 2022 ONCA 306: #similar fact prejudice, and R v Scopel-Cessel, 2022 ONCA 316: #detention during SW

R v Dussault, 2022 SCC 16

[April 29, 2022] Charter s.10(b): Right to Re-consult with Counsel [Reasons by Moldaver J. with Wagner C.J, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring]

AUTHOR’S NOTE: In a unanimous judgment, the SCC herein reinforces the prior Sinclair ruling about re-consultation with counsel. What is truly useful is the clear communication that undermining advice of counsel can be intentional and unintentional. What is important for 10(b) analysis is the effect of the conduct on the accused, not what was in the minds of the police when they did it. The only requirement for the right to reconsult to arise is "objectively observable indicators" that the legal advice given has been undermined. Here, the police first communicated, through his counsel, that the accused's lawyer would be permitted to come to the police station for his interview, then they changed their mind without telling the accused that was the reason for the lawyer's "non-attendance." This undermined the advice. Mr. Dussault expressed during the interview that he was waiting for his lawyer and wondering why he wasn't showing up. The s.10(b) violation and exclusion of the statement was upheld.

Introduction

[1] Patrick Dussault was arrested on charges of murder and arson. He was read his rights and taken to the police station, where he spoke with a lawyer for roughly 10 minutes on the telephone. He and the lawyer ended the call in the belief that the police had agreed to allow them to continue their conversation at the station. When the lawyer came to the station, the police did not let him meet with Mr. Dussault. Before Mr.Dussault spoke again with the lawyer, he was questioned and made an incriminating statement.

[2] At issue in this appeal is whether the police provided Mr. Dussault with a reasonable opportunity to consult counsel and, more particularly, whether they were required to provide Mr. Dussault with a further opportunity to consult counsel before interrogating him. ...

[3] For reasons that I will explain, in the unique circumstances of this case, I am satisfied that the police were required to provide Mr. Dussault with a further opportunity to consult counsel before questioning him. ... In my opinion, there were objectively observable indicators that the police conduct in this case had the effect of undermining the legal advice that the lawyer provided to Mr. Dussault during their telephone call. Therefore, even if the call was a complete consultation in its own right, the police were nevertheless required to provide Mr.Dussault with a second opportunity to consult counsel. They failed to do so and thereby breached his s. 10(b) rights. I would dismiss the appeal.

Facts

[5] On the afternoon of August 28, 2013, Gatineau police made a dynamic entry into the home of Mr. Dussault and arrested him on charges of murder and arson.

[6] The police transported Mr. Dussault to the police station. They arrived at 2:36 p.m. Mr. Dussault was presented with a list of local defence lawyers. He chose Jean-François Benoît at random. He was placed in a small room with a telephone and told to wait for a call. When the phone rang, Mr. Dussault answered. Mr. Benoît was on the line.

[7] The two conversed for roughly nine minutes. Mr. Benoît explained the charges and Mr. Dussault’s right to remain silent. He was left with the impression that Mr. Dussault was not processing or understanding his advice. He offered to come to the station to meet in person, and Mr. Dussault accepted. Mr. Benoît then asked Mr. Dussault to pass the phone to an officer. Mr. Dussault knocked on the door and handed the receiver to Detective Sergeant Pierre Chicoine.

[8] Mr. Benoît spoke with Officer Chicoine for roughly three minutes. He said that he was coming to the police station and asked that the investigation be suspended. Officer Chicoine responded [TRANSLATION] “[n]o problem” or “no trouble” ...

[9] Mr. Benoît spoke again with Mr. Dussault for roughly one minute. He confirmed that he was coming to the police station to meet with Mr. Dussault and he explained that, in the interim, Mr. Dussault would be placed in a cell. He told Mr. Dussault not to speak to anyone. Mr. Dussault was reassured by this conversation. He believed that Mr. Benoît was coming to meet him.

[10] At 3:20 p.m., Officer Chicoine, accompanied by Detective Sergeant Ian Gosselin, spoke to the lead investigators on the file, reporting that the arrest went well and that Mr. Dussault had exercised his right to counsel. During the conversation, it was decided that Mr. Benoît would not be permitted to meet with Mr. Dussault. Officer Chicoine was told to inform Mr. Benoît of this decision.

[11] In line with these instructions, Officer Chicoine phoned Mr. Benoît and told him that there was no point in coming to the police station. He said that Mr. Dussault had exercised his right to counsel during the telephone conversation. He also emphasized that Mr. Dussault himself had not expressed a desire to meet his lawyer. According to Officer Chicoine, Mr. Benoît responded in a loud voice, seemingly attempting to influence or intimidate him.

[13] Mr. Benoît arrived at the police station at approximately 4:15 p.m. He was not permitted to meet with Mr. Dussault. At 6:30 p.m., he left to tend to family matters, leaving behind a handwritten note addressed to Officer Chicoine. In the note, Mr. Benoît indicated that, during his phone call with Mr. Dussault, he had only partially instructed Mr. Dussault on his rights, and that he wished to meet with Mr. Dussault to complete the advice before Mr. Dussault was interrogated. He stated that he would be available after 7:45 p.m. and asked Officer Chicoine to contact him as soon as possible. The note was delivered to Officer Chicoine.

[15] After their second check-in with the cellblock supervisor, the officers went to Mr. Dussault’s cell. At 8:52 p.m., Officer Chicoine told Mr. Dussault that Detective Sergeant Frédérick Simard was ready to meet with him. Mr. Dussault asked whether his [TRANSLATION] “lawyer arrived”: A.R., vol. V, at p. 183. Officer Chicoine responded with his own question: Was it Mr. Dussault who had asked the lawyer to come? Mr. Dussault answered that it was the lawyer who said that he would come, and that the lawyer wanted to be there during the meeting. Officer Chicoine told Mr. Dussault that the lawyer was not at the police station.

[16] Officer Simard commenced the interrogation shortly before 9:00 p.m. Mr. Dussault could not understand why he had not yet spoken to his lawyer. It is worth reproducing in full a number of the questions and responses between Officer Simard and Mr. Dussault on this subject: ...

A. That, my lawyer told me he was supposed to be here because he wanted to attend this interview, and he isn’t here, and they told me . . . he told me to wait till he was here, and he still hasn’t arrived. ...

A. But that, my lawyer, he told me to . . . why did he tell me to remain . . . He just told me to give my name, my things, and he told me to remain silent until he was here. Why did he tell me that?

Q. Why did he tell you that? He gave you advice, and it’s privileged for you.

A. No, I know.

Q. I can’t get involved in that conversation.

A. Yeah.

Q. It’s because it’s your privilege to consult a lawyer.

A. Because he told me he’d be here. Now I feel like I’m a bit on my own. He told me he’d be here to come . . .

Analysis

[29] As I see it, the principles set out in Sinclair suffice to resolve this appeal. Sinclair states that the police must provide a detainee with a second opportunity to consult counsel where there are “objectively observable” indicators that their conduct has undermined the legal advice that was provided during the first consultation: para. 55. On the facts of the present appeal, there were objectively observable indicators that the conduct of the police had had the effect of undermining the legal advice that Mr. Benoît provided to Mr. Dussault during their telephone call. Therefore, even if the call was a complete consultation, this was one of those rare cases in which the police were obligated to provide a detainee with a second opportunity to consult counsel. In failing to provide that opportunity to Mr. Dussault, they breached his s. 10(b) rights.

The Right to a Second Consultation

[32] Police can typically discharge their implementational duty by facilitating “a single consultation at the time of detention or shortly thereafter”: Sinclair, at para. 47. In this context, the consultation is meant to ensure that “the detainee’s decision to cooperate with the investigation or decline to do so is free and informed”: para. 26. A few minutes on the phone with a lawyer may suffice, even for very serious charges: see, e.g., R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429.

[33] ... Although other jurisdictions recognize a right to have counsel present throughout a police interview, that is not the law in Canada ...

[34] Once a detainee has consulted with counsel, the police are entitled to begin eliciting evidence and are only exceptionally obligated to provide a further opportunity to receive legal advice. In Sinclair, McLachlin C.J. and Charron J., writing for the majority, explained that the law has thus far recognized three categories of “changed circumstances” that can renew a detainee’s right to consult counsel: “. . . new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient” (para. 2). Of course, for any of these “changed circumstances” to give rise to a right to reconsult, they must be “objectively observable”.

[35] As a specific example of the third category listed above, the majority explained, at para. 52, that the right to counsel may be renewed if police “undermine” the legal advice that the detainee has received:

Similarly, if the police undermine the legal advice that the detainee has received, this may have the effect of distorting or nullifying it. This undercuts the purpose of s. 10(b). In order to counteract this effect, it has been found necessary to give the detainee a further right to consult counsel. See [R. v.] Burlingham[, 1995 CanLII 88 (SCC), [1995] 2 S.C.R. 206].

(2) Undermining Legal Advice Includes Undermining Confidence in Counsel

[36] The majority in Sinclair did not expand on the type of police conduct that could “undermine the legal advice that the detainee has received” and thereby give rise to a renewed right to consult counsel. In this context, care must be taken in defining the term “undermine”. It is clear, for instance, that if this term is defined too broadly, it would prevent police from attempting in any way to convince a detainee to act contrary to their lawyer’s advice: see, e.g., R. v. Edmondson, 2005 SKCA 51, 257 Sask. R. 270, at para. 37. If this were so, police would effectively be required to cease questioning any detainee who said “my lawyer told me not to talk”. That is not the law in Canada: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405.

[37] The reference to Burlinghamat the end of para. 52 in Sinclair sheds light on the type of police conduct that can “undermine” legal advice in the Sinclairsense of that term. It suggests that, in this context, police can undermine legal advice by undermining confidence in the lawyer who provided that advice. In Burlingham, the accused was charged with one murder and suspected in a second. He was subjected to an intensive interrogation during which police repeatedly disparaged “defence counsel’s loyalty, commitment, availability, as well as the amount of his legal fees”: para. 4. A majority of the Court found that these “belittling” comments breached s. 10(b) because they were made with the purpose, or had the effect, of undermining the accused’s confidence in counsel:

. . . s. 10(b) specifically prohibits the police, as they did in this case, from belittling an accused’s lawyer with the express goal or effect of undermining the accused’s confidence in and relationship with defence counsel. It makes no sense for s. 10(b) of the Charter to provide for the right to retain and instruct counsel if law enforcement authorities are able to undermine either an accused’s confidence in his or her lawyer or the solicitor-client relationship. [para. 14]

[39] A detainee’s confidence in counsel anchors the solicitor-client relationship and allows for the effective provision of legal advice: R. v. McCallen (1999), 1999 CanLII 3685 (ON CA), 43 O.R. (3d) 56 (C.A.). When the police undermine a detainee’s confidence in counsel, the legal advice that counsel has already provided — even if it was perfectly correct at the time it was given — may become, as observed in Sinclair, “distort[ed] or nullif[ied]”. Sinclair requires police to provide a new opportunity to consult with counsel in order to counteract these effects.

(3) “Undermining” Is Not Limited to Intentional Belittling of Defence Counsel

[40] The most notable cases in this area of the law are those, such as Burlingham, in which the police expressly call into question the competence or trustworthiness of defence counsel. Burlinghamand certain cases following it have characterized this type of conduct as the “belittling” of defence counsel. In cases of this sort, it is difficult to view the police conduct as amounting to anything less than an intentional effort to undermine the legal advice provided to a detainee.

[41] The Sinclair analysis does not, however, distinguish between intentional and unintentional undermining of legal advice. The focus remains on the effects of the police conduct. Where the police conduct has the effect of undermining the legal advice given to a detainee, and where it is objectively observable that this has occurred, the right to a second consultation arises. There is no need to prove that the police conduct was intended to have this effect.

[42] ... To focus on whether the police intended to bring about a change in circumstance would be to shift the inquiry away from the necessity for reconsultation and toward the fault of the police. This would distort Sinclair. The duty to facilitate reconsultation is not imposed on police as a punishment for ill-intentioned conduct.

[43] The case law also demonstrates that police conduct can unintentionally undermine the legal advice provided to a detainee: see, e.g., R. v. Daley, 2015 ONSC 7145, at para. 42 (CanLII), per Fairburn J. (as she then was); R. v. McGregor, 2020 ONSC 4802, at para. 194 (CanLII); R. v. Taylor, 2016 BCSC 1956, at para. 54 (CanLII). It is for this reason that the Court of Appeal for Ontario was correct to warn that “police tread on dangerous ground when they comment on the legal advice tendered to detainees”: R. v. Mujku, 2011 ONCA 64, 226 C.R.R. (2d) 234, at para. 36. The ground sometimes gives way, and the prohibited effect occurs, even where the intention to achieve it was absent.

[44] Nor is there any principled reason to think that police conduct must amount to the “belittling” of defence counsel in order to “undermine” legal advice in the Sinclairsense of that term. Recall that Sinclairdescribed the “undermin[ing]” of legal advice as being conduct which “may have the effect of distorting or nullifying [that advice]”: para. 52 (emphasis added). Conduct other than the express belittlement of defence counsel may have this effect: see, e.g., R. v. Azonwanna, 2020 ONSC 5416, 468 C.R.R. (2d) 258, at paras. 122 and 148-49, in which police undermined the legal advice that a detainee had received by providing a misleading and incorrect summary of his right to silence. There would be no point, however, in trying to catalogue the various types of police conduct that could have the effect of “undermin[ing]” legal advice in this context. The focus remains on the objectively observable effects of the police conduct, rather than on the conduct itself.

[45] Simply put, the purpose of s. 10(b) is to provide the detainee with an opportunity to obtain legal advice relevant to their legal situation. As noted earlier, the legal advice is intended to ensure that “the detainee’s decision to cooperate with the investigation or decline to do so is free and informed”. The legal advice received by a detainee can fulfill this function only if the detainee regards it as legally correct and trustworthy. The purpose of s. 10(b) will be frustrated by police conduct that causes the detainee to doubt the legal correctness of the advice they have received or the trustworthiness of the lawyer who provided it. Police conduct of this sort is properly said to “undermine” the legal advice that the detainee has received. If there are objectively observable indicators that the legal advice provided to a detainee has been undermined, the right to a second consultation arises. ... As Sinclair makes clear, police tactics such as “revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against him” do not trigger the right to a second consultation with counsel: para. 60.

Application

(1) The Police Misled Mr. Dussault

[47] In my opinion, two separate acts of Officer Chicoine combined to have the effect of undermining the legal advice provided by Mr. Benoît.

[48] The first act occurred during Officer Chicoine’s first telephone conversation with Mr. Benoît. When Mr. Benoît said that he was coming to the police station to meet with Mr. Dussault and asked that the investigation be suspended, Officer Chicoine responded that this would be no problem or no trouble. In reasonable reliance on Officer Chicoine’s words, Mr. Benoît advised Mr. Dussault that he was coming to the police station to meet with him and that, in the interim, he would be placed in a cell. Officer Chicoine’s words therefore had the effect, albeit indirect, of causing Mr. Dussault to believe that an in-person meeting would take place.

[49] The second act occurred at 8:52 p.m. By this time, Mr. Benoît had come and gone. When Officer Chicoine told Mr. Dussault that Officer Simard was ready to meet with him, Mr. Dussault asked point-blank whether his [translation] “lawyer arrived”. Officer Chicoine responded that Mr. Benoît [translation] “isn’t at the front of the station”: A.R., vol. VI, at p. 38.

[51] I do not agree that Officer Chicoine successfully extricated himself from this delicate situation. The most reasonable interpretation of Officer Chicoine’s response was that Mr. Benoît had not arrived at all. Indeed, Mr. Dussault’s statementsduring the interrogation indicate that this is precisely what he believed ([TRANSLATION] “he told me to wait till he was here, and he still hasn’t arrived”). Officer Chicoine’s statement misled Mr. Dussault into believing that Mr. Benoît had failed to come to the station for their in-person consultation. If Officer Chicoine was worried about denigrating counsel or casting a doubt on the quality of the legal advice that Mr. Dussault had received, I fail to see how the words that he chose were an improvement over telling Mr. Dussault that Mr. Benoît had come and gone.

(2) The Police Conduct Undermined the Legal Advice Provided to Mr. Dussault

[52] Two factors in particular support my conclusion that the above-described police conduct had the effect of undermining the legal advice that Mr. Benoît had provided to Mr. Dussault.

[53] The first is the content of the advice itself. Mr. Benoît advised Mr. Dussault that he was coming to the police station to meet with him in person; that, in the interim, Mr. Dussault would be placed in his cell; and that he — Mr. Dussault — should not speak to anyone. In refusing to permit Mr. Benoît to meet with Mr. Dussault, the police effectively falsified an important premise of Mr.Benoît’s advice — i.e. that Mr. Dussault would be placed in a cell until Mr. Benoît arrived. This is an example of the “distort[ion]” of legal advice that was warned against in Sinclair.

[54] The second is the evidence of what Mr.Dussault said during the interrogation itself. He repeatedly expressed that his lawyer had told him he would be there ([TRANSLATION] “That, my lawyer told me he was supposed to be here”); he stated his belief that his lawyer had never actually arrived (“he told me to wait till he was here, and he still hasn’t arrived”); he openly questioned why his lawyer had given him the advice that he had given (“But that, my lawyer, he told me to . . . why did he tell me to remain . . . He just told me to give my name, my things, and he told me to remain silent until he was here. Why did he tell me that?”); and he implied that his lawyer’s failure to show up had left him feeling alone (“Because he told me he’d be here. Now I feel like I’m a bit on my own”).

[56] In R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, Doherty J.A. described the right to counsel as a “lifeline” through which detained persons obtain legal advice and “the sense that they are not entirely at the mercy of the police while detained”: para. 45; see also R. v. Tremblay, 2021 QCCA 24, at para. 40 (CanLII). I agree. In this case, the conduct of the police had the effect of undermining and distorting the advice that Mr. Dussault had received. The police ought to have offered him a second opportunity to re-establish his “lifeline”, but they did not. In failing to do so, they breached his s. 10(b) rights.

Remedy

[57] The Crown has conceded, in my view properly, that Mr. Dussault’s incriminating statement should be excluded under s. 24(2) of the Charter if it was obtained in violation of s. 10(b).

R v JW, 2022 ONCA 306

[April 21, 2022] Similar Fact Evidence: Identifying the Purpose and Prejudicial Effect Weighing [Reasons by Lauwers J.A., with G. Pardu and Sossin JJ.A. concurring]

AUTHOR’S NOTE: This case provides a great overview of the main pitfalls in admitting similar fact evidence: a failure to adequately identify the purpose of the admission prior to weighing, a failure to adequately assess the probative value, and the incorrect supposition that judges (in judge-alone trials) are somehow immune the prejudicial effect of the evidence heard. The case provides great ammunition to respond to all of these issues.

Overview

[1] ... I would allow the appeal on the basis that the trial judge incorrectly admitted evidence of the appellant’s discreditable conduct several years after the date of the charged offences.

The Background Facts

[2] In May 2013, the appellant operated a daycare for young children out of his home. One of the children, D.B., (a girl, then three and a half years old) alleged that the appellant engaged in sexually inappropriate behaviour with her during nap time. On May 15, 2013, D.B. told her mother on the drive home from daycare that during naptime the appellant “put his penis in my hand” and another time he had put it “in my mouth”. That evening, D.B. told her parents in a matter-of-fact tone that there was touching and licking and demonstrated putting something in her mouth. On May 16, 2013, the police interviewed D.B. She had trouble identifying true and false statements but said that the appellant put his penis in her mouth, and she had licked and rubbed it. On April 30, 2014, the police interviewed D.B. again, but she was unable to recall going to the daycare. At the retrial, D.B. was shown the video of her May 16 statement, but did not remember it.

[3] A second child, A.M., (a girl, then five years old) subsequently made a similar allegation. On May 17, 2013, as the result of D.B.’s complaint, the police interviewed A.M. She did not disclose anything improper. The police advised A.M.’s parents of the nature of D.B.’s complaint. On May 18, 2013, while using the washroom with her mother, A.M. described the appellant’s penis. Her mother asked if the appellant had ever asked her to touch his penis. A.M. told her mother that he had, but she had said “no, no, no, no, no” and that this happened on “movie days” during nap time when the other children were asleep. On May 19, 2013, the police again interviewed A.M., who said she observed the appellant rub his penis and asked her to touch it, but that she refused. At trial, she did not remember attending the daycare or the police statements.

[4] On October 17, 18 and 19, 2016, the appellant was observed by two neighbours. He was visibly naked and masturbating in his living room. They took photographs and a video and reported it to the police. The trial judge noted that the appellant was charged, tried, and convicted of public nudity and breach of his conditions of release in January 2018, and presumably sentenced, though the sentencing details are not in the record.

[6] The trial judge also granted the Crown’s application to admit the discreditable conduct evidence about the appellant’s public nudity charge in October 2016, in part, only in relation to the reliability of A.M.’s evidence.

(1) The Discreditable Conduct Ruling

[7] The trial judge cited this court’s decision in R. v. B.(L.), 1997 CanLII 3187 (ON CA), [1997] O.J. No. 3042, at para. 10, 35 O.R. (3d) 35 (C.A.), at p. 36, as the legal basis for her ruling. She found that the appellant’s conduct in October 2016 manifested his propensity to masturbate, while naked, during daytime hours, with a towel, and in his living room. She considered this conduct to be relevant and material to the events described by A.M., in view of similarities she found in his October 2016 conduct and his conduct as described in A.M.’s testimony.

[8] The trial judge admitted the discreditable conduct evidence and from it drew the three inferences proposed by the Crown: 1) A.M. described events she witnessed rather than events she imagined; 2) A.M. was not mistaken in her description of the appellant as the man rubbing his penis with one hand; 3) A.M. was not mistaken as to the nature of the act she described (masturbating, including with a towel).

[9] The trial judge found the probative value of the evidence to exceed its prejudicial effect. The probative value was high because it was capable of supporting the three requested inferences and was therefore relevant and material to A.M.’s testimony. She found the prejudicial effect to be low because: the conduct was less discreditable than the conduct described by A.M.; it was a judge-alone trial; and the appellant could testify in response. However, the trial judge declined to admit the evidence in relation to the charges involving D.B., who had described events in a child’s bedroom.

[11] Considering the count-to-count similar fact evidence and the other discreditable conduct, the trial judge convicted the appellant because she found D.B. and A.M.’s evidence to be both credible and reliable (subject to a finding that D.B. was unreliable as to how often the abusive conduct happened).

Analysis

(1) The Governing Principles on the Admissibility of Discreditable Conduct Evidence

[14] This appeal requires this court to make another foray into what Dean Wigmore called, in 1940, “a vast morass of authority that was hopeless to reconcile” on the admissibility of discreditable conduct evidence.2 The morass is vaster today.

(a) Defining Discreditable Conduct Evidence

[15]      Discreditable conduct evidence is evidence that:

(a) tends to show that the accused has committed an offence that is not the subject matter of the charge or charges before the court; or

(b) tends to show behaviour on the part of the accused, either through prior or subsequent acts, records, statements or possessions,

(c)  and which, in the opinion of the court, would be viewed with disapproval by a reasonable person.[3]

[16]      This definition is apt because the discreditable conduct in this case – public nudity – relates to a charge that was not the subject matter of the charges before the court and that a reasonable person would view with disapproval.

(b) The Exclusionary Rule

[17]      The rule is most simply expressed by McLachlin J. (as she then was):

[E]vidence which is adduced solely to show that the accused is the sort of person likely to have committed an offence is, as a rule, inadmissible. Whether the evidence in question constitutes an exception to this general rule depends on whether the probative value of the proposed evidence outweighs its prejudicial effect.[4]

In other words, there is a “general exclusionary rule” against the admission of evidence “going merely to disposition”.[5] The Supreme Court repeated this language in Handy, which continues to be the seminal decision and governing precedent.[6]

[18]      The rule exists, said Binnie J. in Handy, because: “[t]he evidence, if believed, shows that an accused has discreditable tendencies,” so that the trier of fact might convict on that basis alone, with the prospect that “[i]n the end, the verdict may be based on prejudice rather than proof, thereby undermining the presumption of innocence”. This would be wrong: “[t]he forbidden chain of reasoning is to infer guilt from general disposition or propensity.”[7]

[19]      In order to overcome the presumption of inadmissibility, the Crown has to establish, on the balance of probabilities, that the probative value of the proposed evidence outweighs its prejudicial effect.

(c) Methodology

[20]      An orderly methodology can be extracted from the cases and should guide trial judges in their assessment of the admissibility of discreditable conduct evidence.[8]

(i)   Defining the Issue

[21]      The first step is to define with specificity the issue to which the evidence is asserted to be relevant because “[p]robative value cannot be assessed in the abstract”.[9] Binnie J. noted in Handy that: “[t]he utility of the evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact”.[10]

(ii) Identifying the Probative Value of the Discreditable Conduct

[22]      The second step is to assess the probative value of the evidence. When evidence disclosing the accused’s discreditable conduct is offered, it is said to be probative because it exhibits similarity to the conduct underlying the charges faced by the accused. That is the way that the trial judge in this case approached the evidence of discreditable conduct, as will be discussed in more detail below. While the usual form of discreditable conduct evidence is “similar fact evidence” or “similar act evidence” as seen, for example in the cross-count application in this case, the principles laid out in Handy are applicable to discreditable conduct evidence beyond similar fact evidence.[11]

[23]      The assessment of probative value will vary from case to case. Identity cases are different from cases concerning motive, for example. The two critical elements are connectedness and similarity, as noted by Zarnett J.A. in R. v. Tsigirlash[12]. There must be a:

logical “nexus established between the evidence of similar acts and the offence that the evidence is offered to prove”: MacCormack, at para. 49. Where the logical nexus depends on the similarity of the similar acts to the act charged, the probative value of the evidence will increase with the degree of similarity, because the probability that the similarity is a result of coincidence will decrease. The court must be satisfied that the “objective improbability of coincidence” has been established: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 48. This analysis cannot be done in the abstract, but only on the basis of specifically-identified similar acts.[13]

[24]      However, the Supreme Court has cautioned that:

The judge’s task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance. At microscopic levels of detail, dissimilarities can always be exaggerated and multiplied. This may result in distortion. At an excessively macroscopic level of generality, on the other hand, the drawing of similarities may be too facile.[14]

[25]      The similarities can be circumstantial. This court held in R. v. S.C.[15], that “in sexual assault cases, similar circumstances are often more compelling than similarities or dissimilarities in conduct”. The circumstantial evidence showed that the accused had a “situation-specific propensity to seek out young females connected by family relationships”[16], which provided the evidence with sufficient probative value to be admitted. Watt J.A. stated in R. v. J.M.[17]:

Where the evidence of similar acts is summoned in support of proof of the actus reus, it is not an invariable requirement that there be a strong peculiarity or unusual distinctiveness underlying the events being compared: Handy at para. 81. The cogency of evidence of similar acts may arise from the repetitive and predictable nature of an accused's conduct in closely defined circumstances.

(iii)        Identifying the Prejudicial Effects of the Discreditable Conduct

[26]    ... “moral prejudice” and “reasoning prejudice”.

[27]      On the one hand, “moral prejudice” identifies “the risk of convicting the accused because he is a ‘bad person’ rather than based on proof that he committed this offence” for which he is being tried.[18] On the other hand, “reasoning prejudice” specifies the risk that a trier of fact will be distracted from a “proper focus on the charge itself aggravated by the consumption of time in dealing with allegations of multiple incidents…in divergent circumstances rather than the single offence charged”.[19]

[28]      Binnie J. stated in Handy that “distraction” as part of reasoning prejudice can take different forms. One form is emotional: the similar facts may raise “in the minds of the jury sentiments of revulsion and condemnation which might well deflect them from the rational, dispassionate analysis upon which the criminal process should rest”.[20] (In my view a similar dynamic applies to a judge acting as a trier of fact.) Binnie J. noted that: “[t]he accused has a limited opportunity to respond” and is not “allowed to counter evidence of discreditable conduct with similar fact evidence in support of his or her credibility”.[21] This can give rise to a trial fairness problem. Binnie J. observed that “the practical realities of the trial process reinforce the prejudice inherent in the poisonous nature of the propensity evidence itself”. [22]

[29]      Another form of reasoning prejudice is when the trial focuses on the discreditable conduct itself, as a kind of trial within a trial, which can lengthen and complicate the trial, and distract the trier of fact from the issues on which liability turns.[23]

[31]      The first perspective of “moral prejudice” requires the trial judge in a judge-alone trial to self-instruct against the tendency to infer guilt based upon what Handy called the “forbidden chain of reasoning…from general disposition or propensity”.[24] However, Paciocco et al. observe that “self-instruction by judges can reduce, but will not eliminate, the risk of moral prejudice.”[25] They add that: “[s]ince the extent to which restricted admissibility doctrines can prevent moral prejudice is limited, courts must maintain a high awareness of the potential prejudicial effect of admitting similar fact evidence, particularly where the similar fact conduct is reprehensible”.[26]

[32]      There is less moral prejudice when the similar acts in question are other counts on the indictment, and therefore, more moral prejudice where the discreditable conduct is outside of the facts in the case: R. v. J.M., per Watt. J.A., at para. 87, and R. v. J.H.[27], per van Rensburg J.A., at para. 24.

[33]      The second perspective to be assessed is the reasoning prejudice posed in the specific circumstances of the case. This focuses both on the emotional form of reasoning provoked by the discreditable conduct, and also on the distraction from the facts in issue in the case that trying the issue of discreditable conduct might encourage.

[34]      The third perspective is whether there are ways in which the possible prejudicial effects can be mitigated in the circumstances of the case. It has been said by this court that the risk of prejudice is “considerably reduced” in judge-alone trials.[28] But Paciocco et al. note that: “there is controversy over how much lower the risk of prejudice is in judge-alone trials”.[29] They add that: “[e]ven judges can struggle to overcome the tainting effect of discreditable information and may give it undue focus during a trial”.[30] This observation is true to experience. Judges can by training and experience steel themselves against moral and reasoning prejudice, but only if they actively advert to the very point in the moment of decision.

[35]      While the prospect that the accused might be able to testify in order to allay the prejudicial effects has been suggested to be a mitigating factor, this is doubtful, given what Binnie J. described in Handy as the “poisonous nature” of the evidence.[31] Further, admitting the discreditable conduct evidence might effectively force the accused to testify in a case where doing so might be inadvisable for other reasons.

(iv)        Weighing Probative Value Against Prejudicial Effect

[36]      The fourth step in the methodology is to weigh the probative value of the discreditable conduct evidence against its prejudicial effects. Although this step is sometimes called a “balancing”, that is not an apt metaphor ... However, the interests of both society and the accused in a fair trial process require that the dangers of propensity evidence be taken extremely seriously; the criminal justice system “should not (and does not) take lightly the dangers of misapplied propensity evidence”.[34]

(2) The Principles Applied

[37] In this part of the reasons, I use the methodology set out above as the analytical framework to explain why the discreditable conduct evidence should not have been admitted. ...

[38] At the first step, the trial judge did not define with sufficient specificity the issue to which the discreditable conduct was asserted to be relevant. ... The key question was whether the evidence could advance or refute a live issue pending before the trial judge, to paraphrase Handy. Did the appellant’s discreditable conduct in masturbating naked in the front window of his house, with a towel, make it more likely that he had sexually assaulted the children in the manner alleged by the Crown? As I note below, the Crown side-stepped this question, as did the trial judge.

[39] The second step requires the trial judge to identify the probative value of the discreditable conduct evidence. ...

[40] In my view, the trial judge fell into the error cautioned against by the Supreme Court in Shearing, quoted earlier. Her focus was almost entirely on similarities with no attention being paid to the dissimilarities, in particular the fact that there were no children involved in the 2016 conduct and that the appellant’s living room in 2016 was no longer a place of business operating as a daycare.

[41] ... The trial judge explained: “I am not asked to draw an inference with respect to conduct in the presence of a child.” But shorn of their link to children, in the context of the charges, the similarities here are merely generic and not material, and therefore risk giving undue weight to the discreditable aspects of the conduct, as Paciocco et al. trenchantly observe:

Where the probative value of similar fact evidence depends on similarities, care has to be taken not to act on “generic similarities” or kinds of features likely to be present in many or most instances of the same crime. Generic similarities do not yield appropriate inferences. They also increase the risk that the improper inference from “bad character” will be drawn, and they may mask important dissimilarities between the similar fact evidence and the crime charged.[35]

[42]      At the third step, the trial judge is required to identify the prejudicial effects of the discreditable conduct. She did not do that. Instead, she dispatched the prejudicial effects of the 2016 conduct in two paragraphs, finding that “the risk of either moral prejudice or reasoning prejudice is low” because the public nudity conduct was less discreditable than the conduct for which the appellant was charged and because it was a judge-alone trial....

[43] In my view, the trial judge did not implicitly or explicitly identify the elements of both moral prejudice and reasoning prejudice. The problem is especially acute for reasoning prejudice. It would be no comfort to the appellant that he would have an opportunity to testify. ...

[44] As it transpired, the dynamic of this trial revolved around the discreditable conduct evidence and, in particular, around the appellant’s inability to explain in terms that the trial judge would accept why he engaged in public nudity in the front window of his house. She contrasted this unfavourably with his excellent recollection of how he ran the daycare and used the contrast to impugn his credibility. In the absence of the application to admit evidence of the discreditable conduct, the appellant might have chosen not to testify, denying the Crown the opportunity to use the discreditable conduct to impugn his credibility.

[45] ... The trial judge criticized the appellant for not providing “a plausible explanation for his inability to recall” the 2016 events. ...  However, the appellant’s testimony on the 2016 events was neither unexplained nor implausible...

You know, it’s three and a half years where I hadn’t been able to play hockey, or play softball, because I have conditions. I couldn’t work because of the bail conditions I was on. I was just alone and I – I went crazy, I don’t know how else to explain it. ...

[46] At the fourth step of the methodology, the trial judge was required to weigh the probative value of the discreditable conduct evidence against its prejudicial effects. Her finding that the probative value of the proposed evidence exceeded its prejudicial effect was based on a conclusory statement that she had “weighed the factors for and against admissibility of the proposed evidence”. The trial judge did not carry out this analysis in light of the basic premise that discreditable conduct evidence is to be presumptively excluded, and that this final step is meant to concretely analyze how the probative value of the evidence weighs against its prejudicial effects in the context of the trial as a whole.

[49]      Handy noted that: “A trial judge has no discretion to admit similar fact evidence whose prejudicial effect outweighs probative value”.[36] A trial judge similarly has no discretion to admit discreditable conduct evidence whose prejudicial effect outweighs its probative value. The discreditable conduct evidence should not have been admitted, and its admission rendered the verdict unsafe.

F.           DISPOSITION

[50]      I would allow the appeal, set aside the convictions and order a new trial.

R v Scopel-Cessel, 2022 ONCA 2900

[April 25, 2022] Charter - Detention during Search of Home [Reasons by I.V.B. Nordheimer with Janet Simmons and B.W. Miller JJ.A. concurring]

AUTHOR’S NOTE: It seems that Charter rights to counsel continue to get short shrift in trial courts if they occur during the execution of a legitimate search warrant in someone's home. An error that occurs quite often seems to focus on the idea that asking questions of the person during the search to facilitate the search is somehow not Charter protected because the person is technically free to leave. What is ignored in this analysis is the circumstances include: the state entering someone's home while they are present and them likely not having anywhere else to go while the search happens. It is a very technical interpretation to suggest that people in these circumstances are not detained for Charter purposes.

Background

[1] Mr. Scopel-Cessel appeals from his convictions for possessing and accessing child pornography. The issue on appeal turns on the trial judge’s conclusion that information obtained from the appellant by the police, in the course of executing a search warrant, should not be excluded for breach of the appellant’s rights under the Canadian Charter of Rights and Freedoms. For the following reasons, I would allow the appeal and quash the convictions.

[4] Between December 14, 2017, and January 1, 2018, D/C Twiddy was able to download eight suspect files from the device matching the GUID and originating from the IP address. By January 4, 2018, D/C Twiddy had learned that the location of the IP address was in Pickering, Ontario. He further learned that the suspect computer was using a file sharing program known as “eMule”. Upon a review of the downloaded files, D/C Twiddy concluded that the images met the definition of child pornography set out in the Criminal Code, R.S.C. 1985, c. C-46.

[6] On January 23, 2018, D/C Twiddy attended the Pickering address and conducted a wireless signal scan from the street using a WiFi detection device called a “Canary”. He was able to determine that all accessible wireless signals in the area were password protected. At the time, he was satisfied that the wireless signal being used at the address had not been compromised or hijacked by an unauthorized user.

[8] That same day, D/C Twiddy began drafting an Information to Obtain for the purpose of obtaining a search warrant for the address. At the time, D/C Twiddy did not have any information that anyone other than the appellant lived at the address. He knew that the appellant was the subscriber for the internet account, he had seen a car registered to the appellant parked in the driveway, and he believed the internet account to be password protected.

[9] On January 24, 2018, a search warrant was authorized for the address. The warrant authorized the seizure of evidence related to the commission of child pornography related offences, as well as evidence that would identify the user of the suspect IP address.

[10] At 6:02 a.m. on January 26, 2018, D/C Twiddy and a team of Durham Regional Police Service officers (including ICE and E-Crimes) executed the search warrant. It was dark outside at the time. D/C Twiddy was using his flashlight.

[12] During the execution of the search warrant, D/C Twiddy was wearing a blue vest with the words “POLICE” prominently displayed on the front and back. He was also wearing his full duty belt, including his sidearm. The ICE Unit and E-Crimes officers were similarly attired. The officers from the West Division Criminal Investigation Branch, as well as the civilian officer, were dressed in plain clothes. The officers from the Criminal Investigation Branch were also wearing sidearms.

[13] Officers rang the doorbell, and the appellant answered the door wearing his pyjamas. Upon entering, D/C Twiddy had a conversation with the appellant in the front foyer. He identified himself as a member of the Durham Regional Police Service and advised that he had a warrant to search the residence. The appellant was provided with a copy of the warrant, which he reviewed. The warrant outlined the items to be searched for and indicated that police were investigating an “unidentified person”.

[15] During the initial conversation with police in the foyer, the appellant was told that he was not under arrest and was not required to provide any information. D/C Twiddy did not believe that the appellant was detained at this time. Consequently, he did not read the appellant a specific caution.

[16] Shortly after the appellant’s wife was escorted downstairs, both she and the appellant were brought into the living room to speak with D/C Twiddy. At the time, the other officers involved in the execution of the warrant were searching the other rooms of the home.

[17] While in the living room, D/C Twiddy told the appellant that he was not under arrest and that he had no obligation to provide information. D/C Twiddy testified that he went further and advised the appellant that he was not detained. The appellant had no recollection of that, and it was not included in D/C Twiddy’s original case notes, although it was in his arrest report made later that day.

[18] D/C Twiddy informed both the appellant and his wife of the nature of the investigation. D/C Twiddy then asked how many computers were in the residence. Prior to asking this question, he did not advise either the appellant or his wife of their rights to counsel.

[19] The appellant’s wife advised that there were two computers on the second floor – a computer in the south bedroom that belonged to her, and one in the north bedroom that belonged to the appellant.

[20] D/C Twiddy testified that the fact that the appellant had a specific computer in the residence did not change his view that the appellant was not a suspect at the time.

[21] While D/C Twiddy was with the appellant and his wife in the living room, he asked if anyone else lived in the residence. The appellant said that there had been “no other residents for the past several months” and that the WiFi password had only been provided “to friends and family who visit, never to neighbours.”

[22] ... They remained in the kitchen in the company of police until the appellant’s arrest at 7:36 a.m., over an hour into the search.

[23] While in the kitchen, D/C Twiddy continued to observe the appellant. At one point, the appellant asked for permission to make a cup of coffee for him and his wife. He was allowed to do so.

[24] Prior to the appellant’s arrest, D/C Twiddy attended the north bedroom where an E-Crimes officer had located the desktop computer that the appellant’s wife said belonged to him. The computer was running. D/C Twiddy was told that a password was required to access it.

[25]  D/C Twiddy returned to the kitchen and told the appellant:

You’re not required to provide any information to me, however, the computer upstairs is running and in order for E-Crimes to check it properly and possibly prevent it from being seized, they need the password in order to continue.

[26]  D/C Twiddy did not explain to the appellant that anything that he said at that

point in time could end up being used in evidence against him. The appellant provided the password. D/C Twiddy immediately went upstairs and advised the E-Crimes officer of the password.

[27] Thereafter, upon a review of the computer, D/C Twiddy observed an eMule icon on the desktop. This was the peer-to-peer sharing software that he knew to have been used to download the child pornography material at issue in the case. D/C Twiddy was then advised by the E-Crimes officer that there was also a text document with child pornography related information on the computer.

[28] Following the discovery of the eMule icon and the text document, D/C Twiddy went back downstairs to the kitchen to ask the appellant what was on several rewritable CDs and DVDs that were located during the search. The appellant advised that they were his “DOS stuff”.

[30] At 7:34 a.m., an hour and a half after the police had entered the home, D/C Twiddy had a conversation with an E-Crimes officer and learned that the computer in the north bedroom contained child pornography files. D/C Twiddy also learned that the unique GUID for the computer in the north bedroom matched that identified during the initial investigation.

[31] D/C Twiddy said that he now believed he had grounds to arrest the appellant. However, he did not immediately arrest the appellant, nor did he provide him with his right to counsel. Instead, D/C Twiddy asked the appellant who had access to the north computer. The appellant advised that he was the only one who accessed it.

Trial Reasons

[34] The trial judge gave reasons on the Charter challenge. With the exception of the final statement that the appellant made to the officer regarding who had access to the north bedroom computer, which he excluded, the trial judge rejected the appellant’s claims of any Charter breaches.

[37] The trial found that no detention had occurred until the appellant was arrested at 7:36 a.m. However, the trial judge found that the one statement made just before his arrest (as to who had access to the north bedroom computer) was problematic because, by that point, D/C Twiddy knew about the child pornography found on that computer and was thus attempting to obtain an inculpatory statement without providing the appellant with his rights. He found that this question breached the appellant’s s. 8 rights and excluded the answer.

Analysis

[39] In my view, the trial judge erred in reaching the conclusion on detention that he did. The trial judge did not analyze the evidence against the factors from Grant that he set out earlier in his reasons. He also set the bar for finding a detention much too high.

[40] The three factors identified in Grant that are relevant to a determination of whether a reasonable person in the individual's circumstances would conclude that he or she had been detained are set out at para. 44: ...

[41] When these factors are properly applied, the first factor reveals that this was not a situation where the police were providing general assistance, or maintaining general order, or making general inquiries. Rather, it was a case where the police were engaged in a focused investigation involving a specific crime linked to a specific address where they knew the appellant lived. Indeed, in obtaining the search warrant, they had linked the existence of child pornography to this very address. And, prior to executing the warrant, they had information linking the appellant to the address.

[42] The second factor reveals that all of the interaction took place in the appellant’s home. It began at six o’clock in the morning when it was still dark outside. It involved eight police officers all of whom, save one, were armed. Most of the officers were wearing clothing that clearly identified themselves as police officers. The only two individuals in the home were the appellant and his wife. They were kept occupied by the police for over an hour and a half prior to the appellant being arrested.

[45] The respondent submits that D/C Twiddy told the appellant that he did not have to answer his questions. He also told the appellant that he was not detained. While that may be true, the fact remains that D/C Twiddy never told the appellant that he was free to go. And, in any event, the notion that the appellant was free to leave is unrealistic in the particular circumstances of this case. The interaction with the police commenced at six o’clock in the morning. The appellant was in his pyjamas. It was January. There was no place where the appellant could realistically have gone. Further, it seems fundamentally at odds with a person’s rights, and the recognized sanctity of a person’s home, to contend that a person must leave their home in order to have their rights protected. As Brown and Martin JJ. said in R. v. Le, 2019 SCC 34, 434 D.L.R. (4th) 631, at para. 51:

The nature of any police intrusion into a home or backyard is reasonably experienced as more forceful, coercive and threatening than when similar state action occurs in public. People rightly expect to be left alone by the state in their private spaces. In addition, there is the practical reality that, when authorities take control of a private space, like a backyard or a residence, there is often no alternative place to retreat from further forced intrusion.

[47] In my view, this case is virtually indistinguishable from R. v. McSweeney, 2020 ONCA 2, 384 C.C.C. (3d) 265. That case involved the same offences together with the execution of a search warrant in a home undertaken, coincidentally, by the same police service. Like this case, the accused person was not read his rights and the police conducted a focused investigation. This court concluded that the appellant (who was present, along with his wife and family) had been detained. Of particular application to this case is the observation of Strathy C.J.O., at para. 51:

It is noteworthy that the warrant was executed at 6:03 a.m. when most people are just waking up and when working people with children are getting ready for their busy day. This element takes on particular flavour when one considers the presence of some nine police officers executing the warrant in what appears to have been a typical, middle-class home. This would cause a reasonable person to feel the weight of the state in their home, the most private of places.

[48] I conclude that the appellant was detained, virtually from the moment that the police entered his home. Without delineating all of the sections of the Charter that the police conduct in this case violated, there was certainly a violation of the appellant’s s. 10(b) rights – a fact that the respondent acknowledges, if a detention is found. The appellant’s s. 10(b) rights were triggered immediately upon detention but were not provided until around one and a half hours later: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41.

[50] On the seriousness of the Charter-infringing state conduct, I conclude that this was a serious breach. I have already said that I reject the notion that the police conduct in this matter was undertaken to expedite and protect the integrity of their search. There was no urgency that would attenuate the seriousness of the breach in this case: R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297; Grant, at para. 75. The search would not have been negatively impacted, in any way, by the police advising the appellant that he was detained and providing him with his rights to counsel. The home was secure, the inhabitants identified, and the computers located. There was nothing that the appellant could have done to interfere with the search or to destroy evidence.

[53] The appellant was detained in his home and questioned about serious offences without being told that he had the right to consult counsel. This was a significant incursion on the appellant’s Charter-protected right against self‑incrimination. Indeed, when the appellant was eventually told of his right to consult counsel, he immediately asked to do so. While the detention was occurring, the police obtained significant incriminating evidence against the appellant, including the password for the computer on which the child pornography was found.

[55] I would add to that the fact that the seriousness of the offence cuts both ways. Society “has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high”: Grant, at para. 84. For this reason, the long-term repute of the justice system also favours exclusion.

[56] Accordingly, I would exclude the evidence found on the computer and all of the statements made by the appellant. Since there is no other evidence on which to found convictions, acquittals on the charges must follow.

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