This week’s top three summaries: R v S.M., 2022 ONCA 765: s.650 #presence at trial, R v Burles, 2022 NWTCA 3: #contempt proceedings, and R v Pearson, 2022 ABKB 655: Mr. Big #abuse.

This week's top case deals with a sexual offence. For great general reference on the law of sexual offences, 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.

PROSECUTING AND DEFENDING SEXUAL OFFENCE CASES, 2ND ED.

By Daniel Brown & Jill Witkin

This bestseller is designed to help practitioners focus on the procedural, evidentiary, and strategic elements specific to sexual offence cases. These elements include search issues, children’s evidence, cross-examination on private records, and sentencing.

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R v S.M., 2022 ONCA 765

[November 9, 2022] Criminal Code s.650: The Right to be Present for Your Trial  [Reasons by Gary Trotter J.A. with Thorburn and L. Favreau J.A. concurring]

AUTHOR’S NOTE: On occasion, judges will ask to have in-chambers meetings during or just before trial proceedings. As this case makes plain, this is a bad idea. Accused persons have a right to present for every significant portion of their trial which includes potential resolution discussions with the judge present. Here, such a meeting was attended by amicus and the accused did not find out about it until his appeal. The result was a new trial in a dangerous offender proceeding.

Introduction

[1] This appeal demonstrates the hazards of trial judges conducting in- chambers discussions with counsel during a criminal trial.

[2] The appellant was charged with sexual offences against his two daughters. He was self-represented at trial, although the trial judge appointed amicus curiae (not Mr. Stein). He also appointed counsel to cross-examine the complainants, pursuant to s. 486.3 of the Criminal Code, R.S.C. 1985, c. C-46.

[3] During the second week of the trial, the trial judge invited the Crown, amicus curiae, and s. 486.3 counsel into his chambers. He expressed concern about the Crown’s case on one of the counts. He encouraged the lawyers to resolve the case by way of a guilty plea. Following another in-chambers meeting later that same day, the appellant pled guilty to four of the five charges that he faced. On August 27, 2014, he was designated a dangerous offender and received an indeterminate sentence: see R. v. S.M., 2014 ONSC 4954.

[4] There was no mention of the in-chambers meetings in open court. Amicus curiae did not tell the appellant about the meetings. It was not until four years into his sentence that the appellant first learned of these meetings with the trial judge.

[5] The appellant challenges his convictions on the basis that the in-chambers meetings deprived him of the right to be present at his own trial, in violation of s. 650 of the Criminal Code. The Crown acknowledges the breach. It does not purport to rely on the curative proviso in s. 686(1)(b)(iv).

[6] In my view, s. 650 was clearly breached by what happened in this case. This amounted to a serious procedural irregularity that cannot be saved by s. 686(1)(b)(iv). I would accept the Crown’s concession, set aside the convictions, and order a new trial.

(5) The Meetings in Chambers

[20] Counsel on the appeal agree that an accurate rendition of what transpired in chambers comes from the trial Crown’s contemporaneous notes. This version of events is not materially disputed by amicus curiae at trial. Counsel appointed under s. 486.3 reported no recollection of in-chambers discussions.

[21] The two in-chambers meetings happened during the second week of trial. After lunch on January 31, 2013, a court officer advised all three counsel that the trial judge wished to see them in chambers. At the time, V.M. had completed her testimony and M.M. was still under cross-examination.

[22] When counsel arrived in the trial judge’s chambers, the Crown expressed concerns about the propriety of being there. The trial judge interrupted him and told him not to worry because nothing was going to be decided.

[23] The trial judge then referred to the email from trial counsel reproduced in para. 16, above. As the trial Crown remembered it:

The judge asked semi rhetorically what the issue was at this trial and then asked if something could be worked out between amicus acting on [the appellant’s] behalf and Crown. The Judge didn’t get into specifics on evidence and only asked whether or not something could be worked out. The Judge did indicate he thought that there was grave or real doubt on the incest part [sic, charge?].

[24] The Crown was careful to note that the trial judge did not exert any pressure on counsel to resolve matters; “he just wondered if there was any possibility.”

[25] After this meeting, the trial Crown and amicus curiae spent the afternoon working out the details of a potential plea. Amicus curiae facilitated negotiations with the appellant and the Crown by acting as a go-between. The second in- chambers meeting then took place when all three counsel met with the trial judge to canvas the proposed resolution. Importantly, the Crown recalled asking amicus curiae to let the appellant know that they would be seeing the trial judge in chambers, but this did not happen. At this second meeting, the trial judge indicated that he had no problem with the resolution, but if it did not go ahead, he would continue the trial.

(6) The Guilty Plea

[26] Following the second meeting, court resumed. No mention was made of the in-chambers meetings. The Crown simply advised the trial judge that he understood that the appellant wished to change his plea to guilty on four counts. The appellant initially resisted, claiming that he did not wish to plead guilty. The trial judge permitted a brief recess so that amicus curiae could have further discussions with the appellant. After this meeting, the appellant indicated that he would plead guilty to all counts except the incest count.

[27] The trial judge engaged in a plea comprehension inquiry. In the course of this exchange with the appellant, the trial judge asked, “And is it a decision that you have arrived at in your own mind voluntarily?” The appellant answered: “Long ago; long ago”. When asked to repeat his response, he said: “I said a long time ago.” During the same discussion, the appellant said that his “whole purpose for this trial” was to defend against the incest charge.

[28] The plea proceeded. It was agreed that the incest charge would be dismissed and that the appellant would admit to sexually abusing both daughters. However, he did not agree that there was any penetration. The appellant was found guilty on this basis.

(7) Post-Trial Events

[29] The appellant appealed his convictions and sentence. He is self- represented. The appellant made various complaints about the performance of amicus curiae. The appellant swore an affidavit and was cross-examined. Amicus curiae swore an affidavit in which he responded to these complaints. He made no mention of the in-chambers meetings with the trial judge.

[30] Amicus curiae was cross-examined by the appellant. Because the appellant was self-represented, the cross-examination took place in front of a Superior Court judge. By this time, amicus curiae was represented by counsel appointed by the Lawyers’ Professional Indemnity Company (“LAWPRO”). After consulting with amicus curiae, LAWPRO counsel advised everyone in court that he had just learned about the in-chambers meetings. The cross-examination continued. When the appellant asked amicus curiae why he did not advise him of these discussions, he answered: “I didn’t think it was consequential.”

C. Analysis

(1) The Right to be Present

[33] Subject to some exceptions that are not relevant to this case, s. 650 of the Criminal Code provides that an accused person “shall be present in court during the whole of his or her trial.” The right to be present at one’s trial also has a constitutional footing: see R. v. Burnett, 2021 ONCA 856, 159 O.R. (3d) 321, at paras. 28, 69-71.

[34] In R. v. Hertrich (1982), 67 C.C.C. (2d) 510 (Ont. C.A.), Martin J.A. explained the importance of the right to be present at trial, at p. 537:

The essential reason the accused is entitled to be present at his trial is that he may hear the case made out against him and, having heard it, have the opportunity of answering it: R. v. Lee Kun (1915), 11 Cr. App. R. 293. The right of the accused to be present at his trial, however, also gives effect to another principle. Fairness and openness are fundamental values in our criminal justice system. The presence of the accused at all stages of his trial affords him the opportunity of acquiring first- hand knowledge of the proceedings leading to the eventual result of the trial. The denial of that opportunity to an accused may well leave him with a justifiable sense of injustice. Indeed, in my view, an examination of the Canadian decisions shows that the latter principle is, in fact, the implicit and overriding principle underlying those decisions.

This passage was endorsed by Dickson C.J.C. in R. v. Barrow, [1987] 2 S.C.R. 694, at pp. 705-707, and more recently by MacPherson J.A. in R. v. Schofield, 2012 ONCA 120, 109 O.R. (3d) 161, at para. 16; see also R. v. Walker, 2010 SKCA 84, 258 C.C.C. (3d) 36, at para. 19.

[35] Not every in-chambers discussion forms part of the accused’s trial for the purposes of s. 650: Schofield, at para. 18. In R. v. Poulos, 2015 ONCA 182, 124 O.R. (3d) 675, LaForme J.A. held that, whether s. 650 is infringed “will depend on whether the context and contents of the discussion involved or affected the vital interests of the accused or whether any decision made bore on ‘the substantive conduct of the trial’: at para 18, citing R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at para. 116, leave to appeal refused, [2010] S.C.C.A. No. 459.

[36] It is not necessary to catalogue what may or may not be tolerated by s. 650. This court has repeatedly held that, “the default position in all criminal trials is that any conversation involving trial counsel and the judge ought to take place in the appellant’s presence, in open court, and on the record. This should also apply to discussions held in a judge’s chambers, since the term ‘trial’ in s. 650(1) can include in-chambers discussions”: R. v. Dayes, 2013 ONCA 614, 117 O.R. (3d) 324, at para. 68; see also Simon, at para. 117. I would also endorse Watt J.A.’s views in Burnett, at para. 60, that few words are required to convey the command of s. 650: “In court. On the record. In the presence of the accused. No more is required. Nothing less will do.”

[37] I agree with both counsel that what happened in this case ran afoul of s. 650 of the Criminal Code in two ways. First, it was improper to engage in resolution discussions in the absence of the appellant. This clearly implicated his vital interests. Second, the trial judge should not have commented adversely on the evidence of V.M.

[38] This scenario – an in-chambers meeting in which a trial judge comments on the quality of the evidence and then encourages resolution discussions – has been criticized in numerous decisions of this court: see Schofield, at paras. 19-21; R. v. Roy (1977), 32 C.C.C. (2d) 97 (Ont. C.A.), at pp. 98-99; R. v. James (2009), 95 O.R. (3d) 321, at para. 21; Poulos, at paras. 19-22; and Dayes, at paras. 69-70. In these situations, it is clear that the former (comments about the evidence) is meant to encourage the latter (plea discussions). Both are improper. In-chambers comments about the evidence are particularly problematic if resolution is not achieved and the trial continues. The appearance of impartiality is lost. [PJM Emphasis]

[39] As Richards J.A. of the Saskatchewan Court of Appeal said in Walker, at para. 38: “If the criminal justice system is to be perceived as being fair and impartial, judges cannot convene private and unrecorded meetings in mid-trial for the purpose of expressing their views about the substance of the proceedings and making inquiries about plea bargaining.”

[40] The infringement was made more serious in this case because, unlike some of the cases referred to above, there was no record of these in-chambers discussions. Unlike all of these cases, the appellant was self-represented. This reality was not ameliorated by the presence of amicus curiae or s. 486.3 counsel. The latter does not remember being in chambers. The former did not tell the appellant what had transpired, even after being asked to do so by the trial Crown. He did not believe that it was “consequential”.

[41] Section 650 of the Criminal Code was breached by the in-chambers discussions that were held in this case.

(2) The Curative Proviso Does Not Apply

[42] I agree with counsel that the violation of s. 650(1) in this case cannot be saved by s. 686(1)(b)(iv) of the Criminal Code,...

D. Conclusion And Disposition

[55] It is more than unfortunate that a new trial must be ordered in this case. A long period has elapsed since trial. Significant resources went into conducting the dangerous offender hearing. The impact on the appellant, the complainants, and others will be dramatic. But the damage to the appearance of the administration of justice cannot be excused; it can only be remedied by setting aside the appellant’s convictions. Consequently, I would allow the appeal and order a new trial on the two counts of sexual assault.

R v Burles, 2022 NWTCA3

[October 31, 2022] Contempt of Court for Witnesses [Watson, Hughes, and Duncan JJ.A.]

AUTHOR’S NOTE: The power of a judge is perhaps most sharply wielded in what is known as a summary contempt of court procedure where the  judge becomes the complainant and the person deciding the outcome of the charge all during the same sitting. It is difficult to see this process as fair because the judge is almost assuredly predisposed to decide the matter in a certain way. Nonetheless, as a method of controlling the court proceedings, this remains an available tool. Herein, the summary procedure is outlined. At the very least, these steps cannot be skipped - this resulted in the matter being overturned. 

[1] Mr. Burles appeals his conviction for contempt of court. We agree the conviction cannot stand.

[2] The background facts are straightforward. At the commencement of the trial of a friend of the appellant, the friend’s trial counsel advised the trial judge:

Ms. MALONE: Good morning, Your Honour. I’m here with my client, Mr. Rainer Erasmus. We are in most respects prepared to proceed to trial. There is a witness [the appellant] who is in custody at NSCC. I did obtain a removal order last week for his attendance. He was present on the last court date. He is apparently not coming to court today.

THE COURT: Well, that is not his choice. I direct Madam Clerk to notify NSCC to extract him from his cell and bring him here.

Ms. MALONE: Thank you, Your Honour.

[4]  When Mr. Burles was called in the case for the defence, he appeared, was sworn, and testified. At the completion of cross-examination, the following exchange occurred:

THE COURT QUESTIONS THE WITNESS:

THE COURT: Mr. Burles, I understand, Sir, you refused to come to court this morning?

A Yeah.

THE COURT: Why?

A I had an exam to take this afternoon, which I missed, so...

THE COURT: When do you get out of jail?

A I don’t know, probably October.
THE COURT: Would you like another 90 days? A If you want to slap it on, go ahead.

THE COURT: Well, I tell you now, and you tell your buddies over at the pen, if you do not come to court when you are required, you will get 90 days tacked on to your sentence.

A That’s fine with me, man.

THE COURT: All right. Well, then you --

A The last thing I need is a lecture from you, you know. THE COURT: You can have an extra 90 days.

A Okay. That’s fine. No worries.

THE COURT: Take him out. Under 708(2).

A It’s already time served anyways.

[5] The above exchange illustrates that the appellant did not have counsel nor was the Crown given an opportunity to participate. Because the Crown did not participate, the Crown was permitted to appear as amicus on the appeal.

[6] The law is clear: a court has authority to summarily deal with contempt. However, before the court proceeds summarily, the circumstances must make it urgent and imperative to act immediately to convict and sentence a party for contempt of court, understanding that the use of a court’s contempt power “should be restrained by the principle that ‘only [t]he least possible power adequate to [end the contempt]’ should be used”: R v K(B), [1995] 4 SCR 186, 129 DLR (4th) 500 at para 13; see also R v Arradi, 2003 SCC 23.

[7] If a court uses the summary procedure, and in the absence of exceptional circumstances, natural justice requires that: 1) the party be cited for contempt in that the party be advised they must show cause why they should not be found in contempt; 2) the party be given an opportunity to be advised by counsel, and if they choose to be represented by counsel; and 3) if the party is found in contempt, the party must have an opportunity to make submissions as to an appropriate sentence: see K(B) at paras 15-16 and Arradi at para 30. R v Lavallee, 2022 MBCA 79 at para 12 states: [PJM Emphasis]

A number of safeguards to prevent a misuse of criminal contempt powers exist. The alleged contemnor is entitled to fair notice of the alleged contempt, time to answer the allegation with the assistance of counsel (absent the need for immediate action because of their disruptive conduct), and a fair and public hearing where they enjoy the typical protections afforded any accused person, including the right to silence, the right to non-compellability, the right to make full answer and defence, the right to be tried by an independent and impartial tribunal, and to be presumed innocent until proven guilty beyond a reasonable doubt (see Regina v Cohn (1984), 15 CCC (3d) 150 at 157-58, 162, 165-66 (Ont CA); and Regina v Ayres (1984), 15 CCC (3d) 208 at 215 (Ont CA)).

[9] The process followed by the trial judge was inquisitorial about past facts, and the facts he relied upon were based on multiple forms of hearsay. The conscriptive inquiry by the trial judge denied the witness a right to choose whether to speak: compare R v Chambers, [1990] 2 SCR 1293, 59 CCC (3d) 321. The approach followed was inconsistent with the entitlement of the appellant to have allegations of misconduct explained to him and once familiarized with the allegations to choose to have the misconduct proven against him.

[10] It is not open to a trial judge to impose a guilty plea for contempt upon a witness who is merely reticent about coming to court: compare R v Wong, 2018 SCC 25 at para 3. Here, the appellant was offering some sort of explanation when his ability to do so was interrupted by the trial judge. Further, it is not open to a trial judge to truncate the opportunity of the witness to explain the alleged contempt, or to purge the alleged contempt, or to argue the alleged contempt was purged, or to speak in mitigation of the alleged contempt. As the appellant attended court and did in fact give evidence in the trial of his friend, there was a live issue whether the contempt, if it happened, was purged. The trial judge short circuited all of that.

[11] To summarize, there were no circumstances that justified use of the summary procedure. The appellant, when called as a witness, entered the courtroom, was sworn, and testified. The appellant demonstrated no contemptuous behaviour while in the courtroom. The only issue was whether the appellant, by stating earlier in the day that he would not appear in court, was in contempt. This issue was not urgent or imperative to the proceeding itself. Further, the trial judge erred in that he did not afford the appellant any of the procedural guarantees as required.

[12] The conviction for contempt was a miscarriage of justice.

[13] Accordingly, we allow the appeal and quash the conviction for contempt. As the appellant has served his sentence, we stay the proceedings. We also note that on the facts of this case, a prerogative writ may have been available to the parties.

R v Pearson, 2022 ABKB 655

[October 3, 2022] Mr. Big Admissibility: Abuse of Process by Reference to Non-Existent Witnesses [Reasons by J.T. Eamon J.]

AUTHOR’S NOTE: This case provides an example of a successful exclusion on the basis of abuse of process in a Mr. Big investigation. The police in the Mr. Big interview intimated that there was a witness to the homicide when they knew no such witness existed. The case extends protections from custodial police interviews where such lies have a history of resulting in voluntariness exclusions. There are limits to the tricks and lies police are allowed to deploy in Mr. Big operations. 

Introduction

[1] The accused Pearson and Denovan are charged with murder of Ronnie Olara Obina on or about 3 November 2017.

[2] The police targeted Denovan in an undercover operation (Operation Hood) commonly known as a Mr Big operation which started February 5, 2020. The police brought Pearson into Operation Hood on October 21, 2020. The operation ended on October 23, 2020 with the arrest of both accused

[3] In the course of the operation, both accused made statements to undercover operators admitting their involvement in Obina’s murder.

[4] Statements obtained through a Mr Big operation are presumptively inadmissible in the accused’s trial unless the Crown can establish, on a balance of probabilities, that the probative value of each confession outweighs its prejudicial effect (R v Hart, 2014 SCC 52). The Crown applied for a determination that the statements are admissible.

[5] The accused Denovan applied for:

(a)  A declaration that the cumulative conduct of the police in Operation Hood amounted to an abuse of process (a section 7 Charter violation) and an order excluding his statements to undercover police in this matter.

[6] The accused Pearson generally adopted Denovan’s application, and specifically sought:

(a) A declaration that the cumulative conduct of the undercover operators in Operation Hood amounted to an abuse of process and an order excluding Pearson’s statements to the undercover officers.

[7]  The accused bear the onus on their applications.

Legal Principles

[14] The test the Crown must meet, established in Hart, is as follows:

[10] .... [W]here the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility will be overcome where the Crown can establish, on balance, that the probative value of the confession outweighs its prejudicial effect. In this context, the confession’s probative value is a function of its reliability. Its prejudicial effect stems from the harmful character evidence that necessarily accompanies its admission. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant.

[15] Probative value is evaluated as a function of the reliability of the statement. In assessing the reliability of the confession, courts must look at the circumstances in which the statement was made. Factors to consider include but are not limited to: the length of the operation; the number of interactions between the police and the accused; the nature of the relationship between the undercover officers and the accused; the nature and extent of inducements offered; the presence of any threats; the conduct of the interrogation itself; and the personality of the accused, including their age, sophistication, and mental health (Hart at para 102). The question at this stage is whether and to what extent the reliability of the confession has been called into doubt by the circumstances in which it was made (Hart at para 104).

[16] ...Confirmatory evidence is not necessary, but where it exists, it can be a powerful guarantee of reliability. The greater the concern raised by the circumstances in which the confession was made, the more important it will be to find markers of reliability in the confession itself or the surrounding evidence (ibid at para 105). Whether evidence can be confirmatory is a common sense analysis of whether the evidence can provide comfort to the trier of fact that the witness is telling the truth (R v Ledesma, 2021 ABCA 143 at para 66, app’n for leave dism, 2022 CanLII 26226).

[17] The second element of the test is the prejudicial effect that the statements create – moral prejudice or reasoning prejudice. The Court in Hart described these prejudices as follows:

[74] Bad character evidence causes two kinds of prejudice. It causes “moral prejudice” by marring the character of the accused in the eyes of the jury, thereby creating a risk that the jury will reason from the accused’s general disposition to the conclusion that he is guilty of the crime charged, or that he is deserving of punishment in any event (Handy [2002 SCC 56], at para. 31). And it causes “reasoning prejudice” by distracting the jury’s focus away from the offence charged, toward the accused’s extraneous acts of misconduct (ibid.). As this Court held in Handy, the “poisonous potential” of bad character evidence cannot be doubted (para. 138).

[18] As the Alberta Court of Appeal summarized in Ledesma at para 53:

[53] Prejudicial effect is concerned with trial fairness. The trial judge must assess the moral and reasoning prejudice these confessions raise. Moral prejudice involves the jury’s temptation to use bad character evidence for prohibited propensity reasoning, including the involvement in simulated crimes of violence or a demonstrated past history of violence. Reasoning prejudice may arise from the length of the Mr Big operation, the amount of time that must be spent detailing the operation, and controversy over whether an event happened or a conversation occurred, all of which may distract the jury from the charges: Hart, para 106.

[19] The risk of prejudice can be mitigated by excluding certain pieces of particularly prejudicial evidence that are unessential to the narrative or by providing limiting instructions to the jury that are be capable of attenuating the prejudicial effect of this evidence (Hart at para 107).

[21] Even if the Crown has met its burden, trial judges are tasked with carefully scrutinizing the conduct of the police to determine if an abuse of process has occurred (Hart at para 11). The onus is on the accused to establish abuse of process (Hart at para 113). The mere presence of inducements is not problematic, but the line is crossed when police conduct approximates coercion. The police cannot be permitted to overcome the will of the accused and coerce a confession, whether through physical violence or threats of violence against an accused, or operations that prey on an accused’s vulnerabilities such as mental health problems, substance abuse issues or youthfulness (Hart at paras 115 117). Inducements that were “overwhelming” could suffice (R v Mack, 2014 SCC 58 at para 36).

[22] While coercion is an important factor to consider, Mr Big operations can become abusive in other ways (Hart at para 118). Misconduct that offends the community’s sense of fair play and decency or is harmful to the integrity of the justice system will amount to an abuse of process and warrant the exclusion of the statement (Hart at paras 117 - 118).

[23] Ledesma succinctly summarized the abuse of process doctrine:

[54] With respect to abuse of process, the trial judge looks for coercion of a confession; police violence, or threats of violence; taking advantage of an accused’s vulnerabilities; placing the accused’s or the public’s safety at risk; or other factors which offend the community’s sense of fair play and decency: Hart, para 115-118, 148-149.

[24] If the accused can establish on the balance of probabilities that an abuse of process has occurred, the court can fashion an appropriate remedy including the exclusion of the confession or a stay of proceedings.

[25] The trial judge retains a residual discretion to exclude evidence that compromises trial fairness, even when the evidence has not been screened out by the two-pronged approach (Hart at para 88).

Whether Pearson’s October 23, 2020 statement is admissible

Background evidence

[391] On October 21 at the conclusion of the meeting between UC2 and Denovan, UC2 told Denovan to call Pearson and sort things out. On October 22, police delivered a stim to Pearson and Denovan by sending police to Pearson’s house. UC2 had a number of conversations with Denovan on October 22, urging Denovan to call Pearson and have them get their stories straight.

[392] I received transcripts of three conversations between Denovan and Pearson, the first on October 22 at 1102 MDT. It is apparent they were not the entirety of the calls between them after Denovan’s first confession, and at least one call preceded the recorded calls in evidence.

[393] Initially Pearson did not want to come to Regina. Denovan persuaded him to do so. He reported to UC2 that he threatened Pearson that if he did not come to Regina, he would never see his children again.

[394] The organization picked Pearson up in Calgary on October 22, 2020 shortly after 4 pm and drove him to Regina.

[395] UC2 briefly met Pearson on his arrival and placed him in a hotel room overnight with Denovan. There is no evidence of what transpired, in terms of “sorting their shit out” as UC2 had instructed.

[396] Pearson confessed to being a party to the murder in a three way meeting among Pearson, Denovan and UC2 in a Regina hotel room on the morning of October 23, 2020.

Application of Hart analysis

[397] The Hart analysis applies to Pearson, because police targeted him in the Mr Big operation, used Denovan as their tool to convince Pearson to participate in the organization’s purported plan to find ways to manipulate or corrupt evidence so that Pearson and Denovan could escape any consequence for their crime, and in the course of this initiative deployed a stim on Pearson and transported Pearson from Calgary to the operation which had then moved its focus to Regina.

Reliability

[398] There are unexplained inconsistencies in the Crown’s evidence of Pearson’s personal circumstances and characteristics.

[399] An undercover operator who was present while they transported Pearson from Calgary to Regina testified that Pearson was cordial, relaxed, of calm demeanour, and appeared sober. He appeared to live in a normal looking residence that was well kept. He told these undercover operators he owned and worked for a small rebar construction crew and was busy with his construction job. He slept most of the trip, and at a stop purchased a meal with his own funds.

[400] In contrast, Detective Guterson’s information of a few months earlier was that Pearson appeared transient and effectively homeless, and was the less stable of the accused.

[401] I did not receive any reconciliation of these dramatically opposed descriptions. Maybe Pearson had a turn of luck in his life. Maybe his situation in late October appeared favourable but in reality, was transient or unstable. Maybe Detective Guterson’s information was wrong, but that is hard to assess because he did not describe the sources or details of his information.

[402] There are also gaps in the present record arising from the lack of information of what discussions transpired between Pearson and Denovan in the hotel room.

[404] The Crown bears the onus of proof to show the statement is admissible. Sometimes confessions are obtained that appear reliable but are unreliable because of unknown pressures or back stories. That is why Hart at para 93 mentions the necessity of good record keeping.

Prejudicial effect

[412] Given the evidence of pressure by Denovan on Pearson and the gaps in the evidence about Pearson’s characteristics and the discussions between him and Denovan, I cannot say the Crown discharged its burden to demonstrate that the probative value outweighs the prejudicial effect.

[413] Overall, the Crown has not discharged its onus with respect to Pearson’s confession and it is not admissible.

Abuse of process – October 23, 2020 statements

[419] Early in the meeting among the accused and UC2, UC2 informed the accused that the organization learned that morning that the police have a witness; he did not know of what; but “a witness is usually there”.

[420] In fact, the police had witnesses, but not a witness to the crime. LV heard a man yell “fuck” then a shot fired. She did not see the crime. Firefighters and citizens saw the Jeep apparently on fire or smoking. They did not witness the crime. Police had CCTV of the crime scene, but that is not a “witness” and in any event none of it allows the viewer to identify the shadowy figure who runs toward or from Obina’s Charger vehicle.

[421] Having evidence of the crime does not necessarily equate to having a witness to the crime. The reasonable implication of UC2’s claim was that police had someone who could actually identify the two accused committing the crime or being together shortly before or after the crime. Indeed, page 34 of the transcript made UC2’s intention clear.

[422] Police may lie to and trick criminals. But they do not have a free pass to lie about anything they please, and this additional falsehood must be weighed in the balance with the other inducements and illusions. The police already had a full confession from Denovan. They kept him under the illusion for another two days while they used him as a tool to induce a confession from Pearson. In these circumstances, unnecessarily jacking up the pressure by falsely asserting the existence of a witness to the crime itself crossed the line and became offensive to the community’s sense of fair play and decency. The Court must disassociate itself from such conduct to protect the integrity of the justice system. [PJM Emphasis]

[423] Consequently, I exclude the entirety of the October 23, 2020 statement following the first claim of having a witness (for convenience of reference, and recognizing the transcription is not itself evidence but merely an aid to understanding, this claim occurs at page 7 of the transcribed version).

[425] The parties may address exclusion of the remaining portions of the interview, if necessary.

PROSECUTING AND DEFENDING SEXUAL OFFENCE CASES, 2ND ED.

By Daniel Brown & Jill Witkin

This bestseller is designed to help practitioners focus on the procedural, evidentiary, and strategic elements specific to sexual offence cases. These elements include search issues, children’s evidence, cross-examination on private records, and sentencing.

USE CODE EMP10 FOR 10% OFF