The Defence Toolkit – November 20, 2021

This week’s top three summaries: R v Tutu, 2021 ONCA 805: #psych detention & obstruct, R v Kotio, 2021 NSCA 76: lay #opinion & #trauma, and R v Hoffman, 2021 ONCA 781: W(D) re other testimony, #hearsay

R v Tutu, 2021 ONCA 805

[November 12, 2021] Detention: Objective Assessment of Psychological Detention Necessary, Police Intent Irrelevant, Obstruction by False Name Excluded via Charter Violation [Janet Simmons, P. Lauwers, and G. Pardu JJ.A.]

AUTHOR’S NOTE: There are two important takeaways from this case. 1. The assessment of psychological detention for Charter assessments is objective. It doesn't matter what the person actually thought about their own detention. It also does not matter what the police intended. If their actions would cause a reasonable person to perceive that they were not free to go, the person is detained. This can even occur completely unintentionally for the police as perhaps occurred in this case when police blocked in a car they thought was abandoned, but instead encountered Mr. Tutu. 

2. There is a body of case law that suggests Charter exclusion is unavailable for conduct of the accused that occurs in the presence of police that constitutes a criminal offence. Here, the Appellant gave a false name to police and was charged with obstruction. The appeal remedy included an acquittal on that matter as a consequence of a 24(2) exclusion completed on appeal. 

Overview and Facts

[1] The appellant was convicted of one count of wilfully obstructing a peace officer; six counts stemming from the illegal possession or storage of a firearm; five counts stemming from breach of recognizance; and four counts stemming from the possession of Schedule I substances. He received a four-year sentence that he has served.

[2] At trial, the appellant argued that the arresting officer, Police Constable Mark Hankin, violated several of his rights under the Canadian Charter of Rights and Freedoms: his s. 9 rights (by arbitrarily detaining him), his s. 10(b) rights (by failing to provide him with the right to counsel immediately after detaining him), and his s. 8 rights (by searching his vehicle incident to an unlawful arrest). The appellant also claimed that PC Hankin racially profiled him.

[3] On the appeal, the appellant argues that the trial judge erred in failing to exclude the material evidence under s. 24(2)...

[4] PC Hankin was driving through the parking lot of a Barrie hotel on a general patrol. He testified that he noticed a black Chrysler with fresh yellow paint markings on the front quarter panel, indicating possible damage. He pulled in behind the car, ran a computer check of the licence plate, and learned that it was a rental. Curious, PC Hankin got out of his cruiser and approached the car. He initially thought the car was unoccupied.

[5] Seeing the occupants, PC Hankin knocked on the driver’s side window, and the appellant rolled it down. He is a Black man and was wearing a black hoodie. He had a set of gold teeth known as what the officer called a “grill”. The appellant and the car’s other occupant, Aaliyah Henry, were sharing a marijuana joint and he passed it to her. PC Hankin asked them to put the joint out and to turn down the music, and then he asked for their names.

[6] Ms. Henry gave PC Hankin her real name, but the appellant falsely identified himself as “Marcus Anthony”. PC Hankin asked them to wait, returned to his cruiser, and ran the names through his computer. There was no driver’s licence connected to the name, nor any outstanding warrants or criminal convictions. PC Hankin suspected that the appellant had provided a fake name. He returned to the car and asked the appellant to spell his name, which he was unable to do. The appellant then provided a second fake name, “Ben Dan”.

[7] By this time another officer, PC Ronald Hunt, had arrived at the scene. The two officers took the appellant out of the car. PC Hankin arrested him for obstructing police, but he did not immediately advise the appellant of his right to counsel. PC Hunt arrested Ms. Henry for marijuana possession. He then searched the vehicle incident to the arrests and found a Glock handgun as well as pouches of drugs in a Gucci bag located on the floor. PC Hankin inspected the Glock, and arrested the appellant again for possession of a firearm, and read him his rights. PC Hankin next took the appellant to the police station where his right to speak to counsel was implemented.

Analysis

[8] ... In our view, the detention occurred when PC Hankin discovered that the car was occupied after he had blocked it from moving.

[10] Arbitrary detention is prohibited in order to “protect individual liberty against unjustified state interference”: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 25. It protects “an individual’s right to make an informed choice about whether to interact with the police or to simply walk away”: R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at para. 30. Upon detention, an individual must be informed of the additional rights afforded by the Charter, such as the right to be informed of the reasons for the detention (s. 10(a)), and the right to retain and instruct counsel without delay and to be informed of that right (s. 10(b)): Thompson, at para. 31.

[12] A detention arises only where the police suspend an individual’s liberty through “a significant physical or psychological restraint”: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44. Not every interference with an individual’s liberty attracts Charter scrutiny.

[13] Physical detention is usually obvious. More difficult is psychological detention, which the court in Grantnoted “is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply”: at para. 44. The Grant court set out three factors to be assessed, at para. 44:

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [Emphasis added.]

[14] This court explained in Thompson that psychological detention or restraint can arise in two ways, when: (1) “an individual is legally required to comply with a police direction or demand”; or (2) absent legal compulsion, when “the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand”: see Thompson, at para. 36; Grant, at paras. 30-31; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 22, and Le, at paras. 25-26.

[15] The s. 9 inquiry engages all the circumstances of the encounter. It requires an objective assessment of what a reasonable person in the shoes of the accused would perceive about his or her freedom to leave: Le, at para. 106. The focus is on how the police behaved and, considering the totality of the circumstances, how their behaviour would reasonably be perceived: Le, at para. 116. The focus is not on what was actually in the accused’s mind at the particular moment. Nor is it on the police officer’s intention.

[16] As noted, the trial judge found that the appellant’s detention arose when he was arrested by PC Hankin for obstructing police after the appellant gave a second false name. The appellant submits that he was psychologically detained when the officer boxed his car into the parking spot.

[21] In our view, the circumstances giving rise to the encounter in this case support a finding that a reasonable person, in the appellant’s position, would believe he was detained when the police, having obstructed his car, approached it or knocked on the window. A reasonable person would see this as a directed personal inquiry: see Thompson, at paras. 53-54; Grant, at para. 41; Le, at para. 42.

[22] The appellant was psychologically detained from the outset of his interaction with PC Hankin, well before his initial arrest. As in Thompson, the police conduct was “authoritative from the outset”: at para. 55. PC Hankin blocked the movement of the appellant’s car with his marked police cruiser. He was in a police uniform. Nothing about the officer’s initial interaction with the appellant would have diminished the perception of a reasonable person in the appellant’s circumstances that he was detained. PC Hankin told the occupants to put out the joint, to turn the music down, to produce identification, and to wait while he did a computer check of their names. He also asked whether they possessed a marijuana licence.

[23] The trial judge stated that “nothing prevented Mr. Tutu or Ms. Henry from exiting the vehicle” and impliedly, their ability to leave on foot. He pointed out that video surveillance showed that the appellant and Ms. Henry had earlier left the vehicle to return to the hotel.

[24] But the view that these factors meant there was no detention is completely unrealistic. First, PC Hankin testified that he told the appellant to “just wait here” and that he was going to run their names through the system and he would “be right back.” He added that he possibly even told them to “stay in [their] car.” Such language would lead a reasonable person to conclude that he or she was not free to leave. The officer’s testimony that if they exited the vehicle, he would not have stopped them does not bear up to scrutiny.

[25] Second, the trial judge noted that the appellant in this case was deprived of the ability to drive away. Jamal J.A.’s conclusion in Thompson, at para. 57, applies equally here: “[T]he police effectively took control of the appellant’s car and its occupants, first by obstructing the appellant’s car, and then by approaching the car and seeking information from the appellant and the passenger.”...

[26] ... The officer’s subjective intention not to block the car is irrelevant. Regardless of that intent, a reasonable person boxed in by a police cruiser would conclude that he or she was not free to leave (see also Q. v. Phillips, 2021 ONSC 5343, at paras. 6, 11). [PM Emphasis]

[27] In our view, when the officer came to the driver’s side window, after blocking the car and preventing it from leaving, he effectively detained the appellant. This situation would lead a reasonable person in the appellant’s position to conclude that he was not free to go. This detention was arbitrary and therefore a breach of s. 9 of the Charter because at that point, there was no reasonable suspicion of criminal conduct: Thompson, at para. 65; Grant, at para. 55. ... [PM Emphasis]

[28] As in Thompson, the officer did not immediately advise the appellant of his right to retain and instruct counsel, contrary to s. 10(b) of the Charter. This failure tainted everything that followed. The officer continued to elicit evidence from the appellant, who had no obligation to speak to him. Their verbal encounter led to the obstruction charge....

[30] The question is whether the evidence should be excluded under s. 24(2) of the Charter, considering the application of the Grant factors, based on the combined breaches of ss. 9 and 10(b). As in Thompson, this court must consider the matter afresh because the trial judge erred in assessing the nature and extent of the Charter breaches: Thompson, at para. 73.

[31] The first Grant factor is the seriousness of the Charter-infringing police conduct that led to the discovery of the evidence....

[33] We agree that the s. 10(b) breach was serious in the absence of exigent circumstances. As Jamal J.A. observed in Thompson, at para. 89: “[Police] cannot go about their undeniably important duties to enforce the law by obstructing ordinary Canadians in their cars until they are satisfied that they have answered their questions.”

[34] The second line of inquiry under Grant concerns the impact of the breach on the appellant’s Charter-protected rights. The police continued to question the appellant after the point of detention, which led to the obstruction charge and so on. This breach impacted the appellant’s rights greatly because it provided the police with the incriminating evidence.

[37] As was the case in Thompson, because we conclude that the evidence ought to be excluded under s. 24(2) based on the combined breaches of ss. 9 and 10(b), it is unnecessary for this court to address the alleged breach of s. 8.

[39] To repeat, we allow the appeal and enter an acquittal on all counts. [PM Emphasis, Note: this includes obstruction in the presence of the officer]

R v Kotio, 2021 NSCA 76

[November 10, 2021] Lay Opinion Evidence about Psychological Effect of Trauma on Memory - Inconsistency Excuses for Complainants of Sexual Assault - Reversal of Onus of Proof from Failure to Volunteer Evidence to Police [Reasons by Van den Eynden J.A., with Wood C.J.N.S. and Hamilton J.A. concurring]

AUTHOR’S NOTE: Sexual assault is an offence for that causes sympathy amongst all witnesses for the Crown. Sometimes, even when not directly asked, such witnesses volunteer testimony that is targeted to tank the defence case, particularly during cross-examination that appears to be effective. Here a sexual assault examination nurse, despite not being qualified as an expert to do so, volunteered that trauma causes people to remember things in their own time. This was a transparent attempt to undermine the importance of the inconsistencies being developed by defence counsel between the medical history given by the complainant and her subsequent statements to police and testimony in court. The issue here was that the nurse was not qualified to give this evidence and the trial judge's decision appeared to turn on this evidence. A new trial was the result. 

Introduction and Background

[5] The alleged assault took place on the evening of August 20, 2017, at the appellant’s residence. The appellant and complainant knew each other. They had met in the spring of 2017 and had dated a few times. The appellant was attending university in Nova Scotia and left the province during the 2017 spring/summer school break. They stayed in touch via texting and Snapchat during the break.

[6] The appellant returned to Nova Scotia in August 2017 to resume his studies and the two made plans to meet up on the evening of August 20, 2017. The complainant wanted to stay overnight and raised that possibility with the appellant through text communications while she was in transit to his place. Apart from just wanting to be with him for the night, she also wanted to avoid having to take public transit home late at night—something she said she feared. The appellant indicated in response (via text message) that spending the night might not be possible. These text messages were exchanged:

Complainant: I’m so happy to get to spend the night with you

Appellant: Wait u might not be able to spend the night tho/I’m just at the hotel and they don’t let over night guest/It’s stupid/It’s not like a legit hotel/But I will ask the lady at the front desk

Complainant: Oh crap I thought I was staying in scared shitless to take the bus at night

Appellant: I will let you know

[8] While the appellant was showering, the complainant, without prompting, took off all her clothes. When the appellant came out of the shower, she performed consensual fellatio (oral sex) on the appellant. When asked by Crown counsel what happened next, the complainant said, "I told him to lay down and I got on top of him ... he put a condom on his penis ... and we were having vaginal sex.”

[9] The complainant acknowledged that she was looking forward to having sex with the appellant and hoped to spend the night with him. She confirmed this during cross-examination: ...

[11] ... The complainant said the appellant wanted to try “something new” and he asked her to change positions. She got on her hands and knees and the appellant went behind her. The complainant stated she thought the appellant was going to continue to penetrate her vaginally from behind in “doggie” style. Lubricating cream was applied to the appellant’s penis and he then tried to put “the tip of hispenis inside my butt.” She claimed that she did not consent to anal sex; she repeatedly told the appellant to stop and that it hurt but he continued against her objections.

[12] The complainant described a harrowing experience. She said that anal penetration went on for fifteen minutes during which it felt like her insides were being ripped apart, she felt blood and was dripping blood and she was scared. She testified that during anal sex she tried to move away from the appellant, but he held her down. The complainant’s claim that she was “held down” arose during her trial testimony. The appellant argued the complainant’s failure to mention this in earlier communications with the police was a material inconsistency in her evidence— something the judge did not address in his decision.

[13] The complainant testified that after anal intercourse ended, she went to the bathroom to “clean up” and used one of the appellant’s facecloths to clean her body. She said the appellant followed her into the bathroom and told her “I’m not done. I haven’t come yet” and proceeded to take her by the hand back to his bed where they engaged in further vaginal intercourse....

A. It was more like -- it wasn't he asked me. When he said -- he told me he didn’t finish coming, he brought me over to the bed. I leaned over and he put it inside of me.

Q. Inside of where?
A. My vagina.
Q. Okay. And did you want to have vaginal sex with him? A. No.
Q. Okay. So why did you have vaginal sex at that point? A. I was just trying to finish so I was able to leave.

[14] The complainant said she did not consent to any of the sexual interactions after the anal intercourse. She claimed she engaged in further sexual acts because the appellant was angry at her for not wanting anal sex and participated so he could ejaculate and she could leave. The allegation that non-consensual vaginal intercourse occurred after anal intercourse arose at trial. I note that, like the claim by the complainant she was “held down” (para.12 herein) the appellant raised this as a material inconsistency at trial; however, the judge did not address this in his decision. [Emphasis by PM]

[16]As noted, the complainant had wanted and expected to stay the night with the appellant. He was not supportive and communicated this to her definitively while they were together at his residence. Around the time the complainant was preparing to leave the appellant’s residence she sent a text to a female acquaintance, whom she had met on the public transit bus and exchanged contact information with a few hours earlier while on her way to meet the appellant. Her text said: “He’s kicking me out fucked up shit happened”. Further texts were exchanged between them and they agreed to meet not far from the appellant’s residence.

[17] Not long after the complainant left the appellant’s residence, she was found in a state of distress by a concerned passerby and told this person that she had been sexually assaulted. From there, a 911 call was made at 10:17 p.m. and police attended to her....

[18] ... The Crown called sexual assault nurse examiner (SANE) Sandra Witherbee. She was the lead nurse who examined the complainant. The judge qualified her to provide expert opinion evidence in “theexamination, observation and conclusions regarding sexual assault injuries”.

[19] ... She was not called upon nor qualified to opine on whether any injuries were consistent with consensual or non-consensual sexual acts...

[20] ... During her direct testimony Ms. Witherbee did not go beyond the limits of her qualifications. However, when cross-examined on her report, she briefly strayed into providing evidence about how trauma affects memory. This evidence arose in the following exchange between defence counsel and Ms. Witherbee and was not in direct response to the posed question: ...

Q. Okay. Thank you. Is -- in your view and according to your recollections, is this a kind of point form outline or is this a fairly full narrative compared to what you would have heard?

A. Well, it is what she told us at that time. I – I find in trauma people remember different things at different times. But at that time, that's what she -- she told us.

Defence counsel: Okay. Those are my questions. Thank you.

[21] Defence counsel made no objection when this evidence (the impact trauma has on memory) was proffered and the judge apparently did not turn his mind to whether such evidence was admissible. Neither Crown nor defence counsel mentioned this evidence in their oral or written closing submissions to the judge.

[22] However, the judge focused on this aspect of Ms. Witherbee’s testimony. He explicitly cited and accepted this evidence in his decision and relied upon it when conducting his credibility assessment of the complainant. The judge found the complainant credible and accepted her version of events. In doing so, he was clearly influenced by Ms. Witherbee’s evidence that trauma impacts memory....

[24] Similarly, when the complainant reported the alleged assault to the police on the evening of August 20, 2017, she did not mention these events (non-consensual vaginal intercourse after the alleged anal assault and being held down during the anal assault). Her explanation was that she did not think she needed to get into these finer details at that time.

[28] The appellant testified in his own defence. His version of the sexual encounter differed. He denied having forced the complainant into any unwanted sexual acts. He viewed the overall progression of the evening as a consensual sexual encounter, and any anal penetration that occurred was unintentional and transitory in the midst of energetic, consensual vaginal intercourse.

[31] .. In assessing the appellant’s credibility, the judge said he had “problems with the [appellant's] evidence”. These six examples were listed:

[48] I have problems with the evidence given by [the appellant]. Examples of problem areas include:

1. Although [the complainant] asked [the appellant] to delete the video he took, he did not delete it saying his phone died. On cross-examination he said he took the video to defend against any allegation of sexual assault. However, [the appellant] told police the video was of their private parts, it does not show [the appellant’s] face. One could not identify the participants from the video.

2. If the purpose of the video was to protect against any allegation of sexual assault, it is odd [the appellant] did not give the police the information to allow them to retrieve the video from his phone which the police seized. ...

[32] I note there is nothing in the record which supports anyone, other than the appellant, having viewed the video or that it was posted for public viewing.

[33] After he identified these “problems” the judge made no express rejection of the appellant’s evidence. Nor did the judge make any particular findings of fact; rather, he accepted the complainant’s version of events as he found her evidence to be credible.

[36] I return to the first two examples the judge found problematic with the appellant’s evidence. They relate to the short video the appellant took during what the complainant willingly confirmed was consensual vaginal intercourse. As I will discuss later, the appellant had no obligation to adduce any evidence. Further, the video would have little to no probative value as to whether any anal intercourse occurred and whether it was consensual, as the video only captured seconds of consensual vaginal intercourse—something which was not in dispute. Nevertheless, the judge found this problematic and drew an adverse inference against the appellant. It was this aspect of the judge’s reasoning that underpinned the panel’s question and our request for further submissions whether the judge improperly imposed a burden on the appellant to provide evidence and then drew an adverse inference against him for failing to do so.

Analysis: The Lay Opinion Evidence

[44] There is nothing in the record or the judge’s decision that indicates the judge turned his mind to whether the impugned evidence of Ms. Witherbee was expert opinion, lay opinion or factual evidence and whether it was admissible. The judge was not invited to consider the impugned aspect of Ms. Witherbee’s evidence. As noted, both counsel steered clear of this evidence in their closing submissions.

[46] I am mindful of the deference owed to a judge’s credibility assessment. These principles were recently canvassed by this Court in R. v. Gerrard, 2021 NSCA 59 at paras. 44 to 48, and R. v. Stanton, 2021 NSCA 57at paras. 65 to 69. However, this ground of appeal raises the question of whether the judge erred in admitting and relying upon opinion evidence from Ms. Witherbee which was outside the scope of her qualifications. That is a question of law which engages a standard of correctness (see R. v. Fedyck, 2018 MBCA 74(affirmed in 2019 SCC 3), R. v. Dominic, 2016 ABCA 114 and Housen v. Nikolaisen, 2002 SCC 33).

[47] In my view, the evidence Ms. Witherbee offered—that in trauma people remember different things at different times—is best characterized as lay opinion evidence. I do not accept the Crown’s contention that the evidence was not prejudicial nor, even if inadmissible, the error was harmless. I am satisfied that the judge erred in admitting this aspect of Ms. Witherbee’s testimony. Further, on this record, I am not satisfied the verdict would necessarily have been the same without the error and I would not apply the curative proviso. I will explain.

Was the evidence factual, lay opinion or expert opinion?

[48] First, an overview of some legal principles respecting factual and opinion evidence is helpful:

1. As a general rule, a witness may only testify to facts within their personal knowledge, observation or experience(see Sidney N. Lederman et al, Sopinka, Lederman & Bryant on The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada Inc., 2018), at p. 815). However, lay opinion and expert opinion evidence are exceptions to this rule(see David M. Paciocco et al, The Law of Evidence, 8^th ed. (Toronto, Irwin Law, 2020) at p. 234).

2. Opinion refers to any inferences from observed facts. However, for characterization purposes, it is recognized that the distinction between opinion and facts is often difficult to draw(see Graat v. R., 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819 at p. 835).

3. A properly qualified expert may provide opinion evidence to assist the trier of fact where their technical expertise is required to assist in drawing inferences (see R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24 at p. 42).  It is also generally accepted that an expert may also offer lay opinion evidence in the course of their testimony: Paciocco et al, at p. 237.

4. Non-experts may give lay opinion evidence or draw inferences from facts where their evidence consists of a “compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly,” so long as particular expertise or special qualifications are not required to draw the inference (Graat at p. 841). For example, also in Graat, the Supreme Court of Canada set this non-exhaustive list: the identification of handwriting, persons and things;  apparent age;  the bodily plight or condition of a person, including death and illness;  the emotional state of a person—e.g. whether distressed, angry, aggressive, affectionate or depressed;  the condition of things—e.g. worn, shabby, used or new;  certain questions of value; and  estimates of speed and distance (at p. 835).

5. It is important to recognize that when the evidence approaches the central issues a judge must decide, “one can still expect an insistence that the witnesses stick to the primary facts and refrain from giving their inferences. It is always a matter of degree. As the testimony shades towards a legal conclusion, resistance to admissibility develops” (see Sopinka, Lederman & Bryant on The Law of Evidence p. 820).

[49] Applying these principles leads me to conclude that the impugned evidence is not factual. Ms. Witherbee went further than stating the sexual assault patients she treats often have memory difficulties. Instead, she made an inference about that observed fact—that the memory gaps are a result of trauma.

[50] Is the evidence lay opinion or expert opinion? This is a closer call. However, in my view, Ms. Witherbee provided lay opinion evidence when she testified that “I find in trauma people remember different things at different times”. She drew an inference about factual observations she made incidentally in the course of her treatment of sexual assault patients, which did not involve the use of her specialized skills and experience.

[51] As Paciocco et al explain at p. 235, in distinguishing between lay and expert opinion evidence, it is not who is offering the opinion that is the main consideration; rather, it is the nature of the opinion being offered—more particularly, whether the offered opinion could be formed only by someone with special training or expertise”. See also R. v. Bingley, 2017 SCC 12 at para. 34 to the same effect.

[53] In cross-examination, Ms. Witherbee clarified that she could talk about “injuries from penetration,” but not as to whether “an injury was caused by a consensual versus a non-consensual act”. And as noted, the Crown was “only seeking to offer expert opinion evidence on whether injuries in this case are consistent or not consistent with penetration”.

[54] There is no basis in her voir dire testimony or elsewhere in the record to determine if Ms. Witherbee had special training in psychology or another relevant discipline that would allow her to form an expert opinion regarding the effect of trauma on memory. For these reasons, I determine the impugned evidence is lay opinion.

Was it an error to admit this evidence?

[55] Lay opinion evidence that falls within one of the categories identified in Graat is admissible without further analysis. Otherwise, the admission of lay opinion evidence is a matter of judicial discretion. Ms. Witherbee’s evidence does not fall within any of the non-exhaustive categories of lay opinion evidence outlined in Graat. The framework for the admission of opinion evidence by non-experts is set out in Graat at p. 835:

To resolve the question before the court, I would like to return to broad principles. Admissibility is determined, first, by asking whether the evidence sought to be admitted is relevant. This is a matter of applying logic and experience to the circumstances of the particular case. The question which must then be asked is whether, though probative, the evidence must be excluded by a clear ground of law or policy.

[56] Policy considerations identified in Graat include the danger of confusing the issues or misleading the jury, unfair surprise, as well as a “tendency for judges and juries to let the opinion of police witnesses overwhelm the opinion evidence of other witnesses” (at p. 841).

[57] Ms. Witherbee’s evidence should have been excluded on policy grounds. Here, a danger similar to one discussed in Graat, is present. In my view, the judge should not have relied on Ms. Witherbee’s opinion and used it to improperly dismiss inconsistencies in the complainant’s testimony.

[58] While her opinion was based on her personal observations, Ms. Witherbee did not clearly state the observed facts on which she based her inference that trauma can affect memory. Rather, she made a bald statement in response to a question posed on cross-examination about the fullness of the complainant’s narrative. There was no follow-up asking for Ms. Witherbee to clarify her comments. She also did not testify that the complainant herself was suffering from trauma when she examined her. As a result, the judge was not well-positioned to assess the reliability of her observations, as well as the weight to be afforded to the inferences  Ms. Witherbee drew from them. As the Ontario Court of Appeal held in R. v. Cuming (2001), 2001 CanLII 24118 (ON CA), 158 C.C.C. (3d) 433 (at para. 21) “with any opinion evidence, there must be some basis for the opinion before it can be given any weight”.

[59] Furthermore, the danger of Ms. Witherbee’s evidence distracting the judge is increased because her testimony approached a fundamental issue the trier of fact had to decide. This case turned on credibility. The judge used Ms. Witherbee’s evidence to dismiss inconsistencies in the complainant’s evidence, dealing a serious blow to the defence. The highly prejudicial nature of this evidence on a central question before the trier of fact, and the dangers of improperly affording it too much weight – especially as Ms. Witherbee was not thoroughly tested on her opinion by the parties – means the judge should have resisted admission of Ms. Witherbee’s evidence. There was simply no basis on which the judge could have assessed the factual basis for Ms. Witherbee’s lay opinion. I reiterate, nothing in this record indicates the judge turned his mind to these frailties.

[60] For these reasons, I am satisfied the judge erred in admitting and relying on Ms. Witherbee’s impugned lay opinion evidence to dismiss inconsistencies in the complainant’s evidence.

Did the judge improperly impose a burden on the appellant to provide evidence and then draw an adverse inference against him for failing to do so?

[71] Turning first to the standard of review, as canvassed by this Court in R. v. K.J.C., 2021 NSCA 5, the standard of review for a W. (D.) analysis is:

[33] In assessing credibility where there is evidence from the accused, the trial judge must have correctly identified and applied the relevant law (R. v. W. (J.E.), 2013 NSCA 19 (N.S.C.A.), at para. 7). An allegation of error in the judge'sapplication of W. (D.) is a question of law, reviewed on a standard of correctness (R. v. H. (J.A.), 2012 NSCA 121(N.S.C.A.), at para. 7). Unless she erred in principle, a trial judge's credibility assessments are entitled to appellate deference (R. v. Dinardo, 2008 SCC 24 (S.C.C.), at para. 26).

[72] Next, the legal principles as to the appellant’s right to remain silent and refuse to cooperate with police—the right to remain silent is constitutionally protected and linked to the presumption of innocence.  In R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, Justice Sopinka for the majority recognized the link between the right to silence and the presumption of innocence under section 11(d). He concluded it would be an error of law for a trier of fact to use an accused’s silence in the reasoning process to convict (at para. 53). As Justice Sopinka explained, doing so would impermissibly shift the burden of proof to the accused:

[76] ... If silence may be used against the accused in establishing guilt, part of the burden of proof has shifted to the accused. ...Thus, in order for the burden of proof to remain with the Crown, as required by the Charter, the silence of the accused should not be used against him or her in building the case for guilt.

[76] I find R. v. Chambers, 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293, is a more applicable case. It deals with an accused’s refusal to cooperate with police, rather than a non-party witness. In Chambers, evidence was led that the accused refused to speak to police following his arrest on charges of conspiring to import cocaine. On cross-examination, the Crown asked the accused, “[W]hy did you not tell the authorities as soon as you were arrested that it may look bad, but you have an explanation for why it looks so bad. Why didn’t you?” (p. 1312). Both Crown and defence counsel agreed this line of questioning and the accused’s answers were impermissible and asked the trial judge to so instruct the jury, but that did not happen. The Court was satisfied that a material error occurred as a result of the impermissible line of questioning and the judge’s failure to provide a limiting instruction to the jury. The error could not be addressed by application of the curative proviso and the Court ordered a new trial.

Application of the Principles

[78] The appellant testified in his own defence. The judge was required to observe the Supreme Court of Canada’s direction in W.(D.) regarding the proper application of the burden of proof. As stated, the constitutional right to silence is not absolute. However, the use of this evidence by the judge does not fall into any of the recognized categories of exceptions outlined in Turcotte. As a matter of law, the appellant’s failure to turn over the video to police could not on its own be used to justify an adverse inference against him supporting his guilt. Otherwise, the appellant’s constitutional right to silence would be rendered illusory.

[80] If an appellate court is unable to ascertain from the judge’s reasons whether the judge properly applied the burden of proof in the assessment of an accused’s   credibility, intervention is warranted. As this Court explained in R. v. J.P., 2014 NSCA 29:

[61]But correct articulation of the W.D. jury instruction is no guarantee the burden was properly applied (see: R. v. D.D.S., 2006 NSCA 34 at para. 45; R. v. A.P., 2013 ONCA 344 at para. 39).  This legal reality was eloquently explained by Watt J.A. in R. v. Wadforth, 2009 ONCA 716:

[50] ... What must appear, however, from the reasons as a whole, is the trial judge's clear understanding of the relationship between reasonable doubt and the assessment of credibility and its application to the case at hand…

[51] The formula in W. (D.) is not a magic incantation, its chant essential to appellate approval and its absence a ticket to a new trial. Its underlying message is that the burden of proof resides with the prosecution, must rise to the level of proof beyond a reasonable doubt in connection with each essential element of the offence, and, absent statutory reversal, does not travel to the person charged, even if his or her explanation is not believed…[Emphasis added. References removed.]

[81]I am satisfied the judge impermissibly shifted the burden of proof from the Crown to the appellant as it relates to this issue. This was an error of law. I would allow this ground of appeal.

R v Hoffman, 2021 ONCA 781

[November 5, 2021] W(D) Instruction Must be Given in Relation to Any Exculpatory Evidence - Double Hearsay Not Admissible within Already Admitted Hearsay [Reasons by David M. Paciocco J.A. with C.W. Hourigan and B. Zarnett JJ.A. concurring]

AUTHOR’S NOTE: This case gives defence counsel the ammunition to challenge double hearsay found in principled exception admitted utterances. These statements are not the same as the rest of the admitted contents. None of the procedural or content routes to verifying reliability of the original hearsay is available to test the double hearsay. Also, this case highlights that a W(D) instruction has to encompass all the evidence it can apply to, not just the testimony of the accused. 

Overview

[1] Following a trial by jury, Gary Hoffman, the appellant, was convicted of manslaughter in the beating death of Madad Kenyi.

[2] The appellant pursues three grounds of appeal before this court. First, he argues that the trial judge erred in failing to give a direction pursuant to the decision in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R 742, relating to exculpatory evidence given by key witness Peter Ojha (the “W.(D.) direction”). Second, he contends that the trial judge erred by misdirecting the jury on double hearsay that may have been contained in a “K.G.B. statement” made by Peter Ojha that was admitted into evidence....

[4] The following reasons explain why I would allow the appeal based on the trial judge’s failure to give a W.(D.) direction relating to the testimony of Mr. Ojha, and on her failure to give a proper double hearsay direction....

Material Facts

[5] On the evening of Thursday, September 24, 2015, several people, including Madad Kenyi, were in Elmcreek Park in Malton. Mr. Kenyi had been drinking heavily that night. He initiated a dispute with others in the park, which turned violent. Mr. Kenyi was knocked to the ground and swarmed by an undetermined number of people who punched, kicked, and stomped him. Many, if not all, of those people had also been drinking heavily. While Mr. Kenyi was on the ground, someone struck him with a tree branch (the “branch”). The beating was brutal; Mr. Kenyi sustained various injuries, including multiple blunt force injuries to his face and body.

[7] ... Andrew Ramdass was subsequently discharged, after a successful certiorari application resulted in his committal being quashed. Nathan Bell (a.k.a. “Bugz”) pleaded guilty to manslaughter and was sentenced. Brian Nelson and Emmanuel Blowes-Serrata were jointly tried and both acquitted. The appellant, who was tried alone, elected to be tried by a jury. As indicated, he was convicted of manslaughter.

Evidence Relating to the Appellant’s Role in Mr. Kenyi’s Death

[10] At the appellant’s trial, it was common ground that Mr. Kenyi initiated the altercation and threatened the appellant with a knife. It was also agreed that the appellant threw a punch at Mr. Kenyi in self-defence.

[11] The key issue was whether the Crown had proved beyond a reasonable doubt that the appellant participated in the subsequent assault in which unnecessary and excessive force claimed Mr. Kenyi’s life. Witness testimony was inconsistent relating to whether the appellant had further involvement in the assault, and the nature of that involvement. As a result of the inconsistent testimony, the Crown pursued alternative paths to conviction. It argued that the appellant was a participant in the fatal assault on Mr. Kenyi, either by striking him with a branch or by participating in the swarming in which an unknown number of people punched, kicked, and stomped him.

[12] Rigoberto Membreno, who had been with Mr. Kenyi prior to the altercation, testified that the appellant did nothing to Mr. Kenyi after throwing the initial punch. He identified other participants in the assault, including Mr. Blowes-Serrata, who he said hit a prostrate and helpless Mr. Kenyi in the face with a branch after he had been knocked to the ground.

[13] Testimony that Mr. Membreno gave at a prior trial was also admitted into evidence. The appellant and the Crown disagree about the meaning of thattestimony. The Crown contends that in his testimony at the prior trial, Mr. Membreno said that the appellant punched Mr. Kenyi during the swarming. The appellant argues that this is a misreading, and that when that prior testimony is interpreted in context, Mr. Membreno was not referring to the appellant when he described the punch.

[14] Aretha Taylor also testified that Mr. Blowes-Serrata struck Mr. Kenyi with a branch, but she said that Mr. Hoffman kicked Mr. Kenyi and joined in the assault with others when Mr. Kenyi was on the ground. In other words, her evidence incriminated the appellant in the swarming, but not the assault with a branch.

[15] Mr. Blowes-Serrata testified that he saw Mr. Hoffman strike Mr. Kenyi with a branch after retrieving a log from a nearby grove of trees. He also testified that the appellant kicked, stomped, and jumped on Mr. Kenyi’s head.

Peter Ojha’s Evidence

[17] Mr. Ojha’s evidence was presented both through his in-court testimony and an out-of-court police statement he had made which the trial judge admitted pursuant to the authority of R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740 (“the K.G.B. statement”). As I will explain in more detail below, Mr. Ojha’s in-court testimony was exculpatory, either in its entirety or on the material issue of whether the appellant struck Mr. Kenyi with a branch. However, Mr. Ojha’s K.G.B. statement to police was inculpatory, describing the appellant as repeatedly striking Mr. Kenyi with a branch.

The Police Obtain Mr. Ojha’s K.G.B. Statement

[20] On the early afternoon of Friday, September 25, 2015, the day after the attack, while the police were canvassing for witnesses, they found Mr. Ojha, along with his friend “Dave”. Mr. Ojha, an alcoholic, was badly intoxicated. He smelled of alcohol and told the police he was under the influence of OxyContin. He admitted to having been present during the attack on Mr. Kenyi. When Officer Dawe asked Mr. Ojha about the appellant, Mr. Ojha said, “Listen, I am no rat. But what happened last night was wrong”. He told the police that the appellant and “Bugz” – known to be Mr. Bell – were present at the time of the incident and were involved in the assault. He described the appellant, who he referred to as “G-Money”, striking Mr. Kenyi, whom he called “the African guy”, numerous times on the head with a branch.

[21] Mr. Ojha then accompanied officers to the police station where he gave a videotaped interview while clearly intoxicated. He was not sworn to tell the truth before doing so, nor was he cautioned about the consequences of not telling the truth.

[22] During the interview, Mr. Ojha said that he saw the appellant come out of the bush and beat Mr. Kenyi with a large branch. Mr. Ojha illustrated the length of the branch by stretching out his arms. He said Mr. Kenyi was on the ground when he was struck. Mr. Ojha said that “it wasn’t pretty” and, even though Mr. Kenyi had not yet died when the interview took place, Mr. Ojha suggested from the nature of the beating Mr. Kenyi had received he was “probably dead”. Mr. Ojha then picked the appellant out of a photo lineup.

Mr. Ojha’s In-Court Testimony

[23] In his in-court testimony, Mr. Ojha referred to the appellant as “G”. Although his out-of-court statement incriminated the appellant as having struck Mr. Kenyi with a branch, the testimony Mr. Ojha gave at trial was inconsistent with the appellant having done so.

[24] ... He said that “G was sitting right there, like I said, a couple of people from me”. Mr. Ojha then testified, “I saw somebody pick up a log. I thought it was G, but when I looked over G was there ... G was sitting down”. Mr. Ojha said there were people in front of him, and he could not see exactly what was going on during the scuffle.

[26] .... In the appellant’s view, Mr. Ojha was testifying that the appellant was beside him during the entire assault and therefore could not have participated in the swarming.

[27] ... He described seeing a scuffle, with everyone running and fleeing in different directions. He was asked what “G” was doing. Mr. Ojha replied, “He was sitting a couple distance from me at the time”. He was then asked whether “G” got up “at any point and leave that spot?” He said, “No”.

[28] ... The Crown submits that, when his evidence is read in its totality, Mr. Ojha did not testify to seeing what the appellant was doing throughout the entire incident. In support of this position, the Crown relies on an answer that Mr. Ojha provided when asked, “And when people started getting up, do you remember where G-Money went?”. Mr. Ojha replied, “No, like I said, everybody running all over”.

Mr. Ojha’s K.G.B. Statement Gains Admission

[30] After Mr. Ojha failed to replicate in his trial testimony what he had said in his videotaped police statement, the Crown brought a successful application pursuant to s. 9(2) of the Canada Evidence Act, R.S.C., 1985, c. C-5 to cross-examine Mr. Ojha on that police statement. However, Mr. Ojha did not adopt his police statement. He said that he had only a vague memory of being approached by the police. He testified he could not remember the specifics of what was said and that he had given “false witness” in his police statement.

[31] Mr. Ojha further testified that when he gave the statement, he “was high like a kite”, and that whatever he said about who did what during the statement was “all hearsay for me”. He denied seeing the appellant grab a branch and strike Mr. Kenyi. He testified that he told the police what he thought they wanted to hear because he was anxious to leave the police station. He said he based what he said on what he had heard from several others, including Dave, who had been present during the assault.

[32] ... The necessity requirement of the principled exception was met because Mr. Ojha recanted the K.G.B. statement in his testimony. The trial judge held that the “procedural reliability” leg of the threshold reliability requirement to the principled exception was also satisfied. Specifically, she held that “there were adequate substitutes for testing the statement’s truth and accuracy”.

[33] Relying on this court’s decision in R. v. Trieu (2005), 2005 CanLII 7884 (ON CA), 74 O.R. (3d) 481 (C.A.), she concluded that the fact that the statement was videotaped, and that Mr. Ojha was available for cross-examination, went a long way towards enabling the jury to test the reliability of what Mr. Ojha told the police. ...Further, jurors could evaluate the impact of his intoxication on the reliability of what he was saying by viewing the videotape and considering his in-court testimony about his state of impairment. She also found that, although Mr. Ojha had not promised or sworn to tell the truth, there were clear indications based on comments he made to the police that he knew the importance of telling the truth.

The W(D) Direction Error

[38] A trial judge need not use this standard charge when directing a jury on the relevant W.(D.) principles: W.(D.), at p. 758; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13. However, the jury direction that is used must equip the jury to deal with each of the three reasoning scenarios described. Typically, this will require a dedicated W.(D.) charge. As Binnie J. cautioned in J.H.S., at para. 8, “A general instruction on reasonable doubt without adverting to its relationship to the credibility (or lack of credibility) of the witnesses leaves open too great a possibility of confusion or misunderstanding.”

[41] Second, as this court’s decision in Charlton verifies, if a witness gives exculpatory evidence, a W.(D.)direction will be required even if that same witness also gives an inculpatory version of events. In Charlton, a Crown witness, Mr. Clark, gave in-court testimony that exculpated the accused. The trial judge also admitted into evidence prior statements that Mr. Clark had provided in his preliminary inquiry testimony that incriminated the accused. Even though Mr. Clark had given both an exculpatory and an inculpatory version of events, this court held, at paras. 44-49, that the trial judge erred in failing to provide a W.(D.) direction relating to the exculpatory testimony that Mr. Clark provided.

The Pre-Charge Conference and the Charge

[43] During the pre-charge conference, both the appellant’s trial counsel and the trial Crown agreed that a W.(D.) direction was required relating to the testimony of both Mr. Membreno and Mr. Ojha. The trial judge said, “You have to leave that with me and I’ll do my best on the W.D.” She ultimately gave a W.(D.) direction with respect to Mr. Membreno’s testimony, but not Mr. Ojha’s. In my view, she erred in making that decision.

The Error Explained

[46] ... Even on the premise that Mr. Ojha offered exculpatory evidence only relating to the assault with the branch, but not the swarming, a W.(D.) direction would have been needed. Put simply, a W.(D.) direction is required even where evidence is exculpatory on only one of the Crown’s theories of culpability, but not others.

[47] ... Quite simply, if a version of events is vital enough to support a conviction if it is proved by incriminating evidence, it is vital enough to require a W.(D.) direction if challenged by exculpatory evidence.

[48] ... It is for jurors to interpret Mr. Ojha’s in-court testimony. That testimony was open to the reasonable interpretation that the appellant remained beside Mr. Ojha throughout the entire assault, and that he was therefore not complicit in any aspect of the fatal assault against Mr. Kenyi. Where testimony is realistically open to an exculpatory interpretation, a W.(D.) direction should be provided.

Failure to Object

[52] ... the Crown argues that the failure of trial counsel to object to the draft jury charge shows that counsel may have recognized that a W.(D.) direction relating to Mr. Ojha’s evidence was unimportant, or that trial counsel made a tactical decision not to raise this issue at trial and should not be permitted to do so now on appeal.

[53] ... The trial judge told counsel to leave the issue with her. She evidently ruled to the contrary. In my view, trial counsel cannot fairly be expected to protest a ruling the trial judge has already made by objecting.

The Double Hearsay Error

[57] Mr. Ojha’s K.G.B. statement was received into evidence as admissible hearsay. On its face, Mr. Ojha’s statement appears to be based on his personal observations. However, according to Mr. Ojha’s testimony, his statement, which was being offered by the Crown as admissible hearsay evidence, was itself based on hearsay from others. If this claim was true, the K.G.B. statement was “double hearsay”. As I will explain, reliance on “double hearsay” is impermissible unless both levels of hearsay are independently admissible. If Mr. Ojha’s K.G.B. statement included hearsay information that Mr. Ojha learned from others, this second level hearsay would not be independently admissible hearsay because there is no available hearsay exception that would apply to what Mr. Ojha was told. Yet, the trial judge failed to direct the jury to disregard the K.G.B. statement if it accepted Mr. Ojha’s claim that his K.G.B. statement was based on what others had said. She simply instructed them that this would be an issue of reliability. I am persuaded that this jury direction was an error.

[58] ... it is trite law that a witness cannot offer hearsay evidence in their testimony unless that hearsay evidence qualifies for admission pursuant to a hearsay exception. It follows that hearsay that is itself embedded in an otherwise admissible K.G.B. statement will not be admissible unless that embedded “double hearsay” qualifies for admission pursuant to its own hearsay exception: R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 75; R. v. Srun, 2019 ONCA 453, 146 O.R. (3d) 307, at para. 135. Put simply, inadmissible double hearsay cannot ride into evidence on the coattails of admissible hearsay evidence.

[59] The reason why this is so, and its implications, are made apparent by returning to first principles. As Fish J. said in R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 31, “hearsay evidence is presumptively inadmissible because of the difficulties inherent in testing the reliability of the declarant’s assertion”. He went on, at paras. 31-32 to describe those difficulties. He explained that the demeanour with which the out-of-court declaration was made cannot ordinarily be evaluated. Moreover, the declarant’s basis for making the out-of-court factual claim contained in the hearsay statement cannot ordinarily be assessed. Specifically, there is often no way to test the accuracy of the declarant’s perception, or their memory, or the accuracy of their narration of what they observed, or their sincerity. It is arbitrary and therefore impermissible to rely upon evidence that cannot be assessed for its reliability or accuracy, hence the presumptive inadmissibility of hearsay evidence.

[61] The problem with double hearsay imbedded in an otherwise admissible hearsay statement is that the indicia of reliability that a trier of fact can use to assess the otherwise admissible hearsay statement tell us nothing about the reliability of the embedded hearsay. This case illustrates the point.

[63] But if Mr. Ojha was communicating not what he knew but what he had been told, those procedural assessment mechanisms are useless in judging the accuracy of that information. Only information relating to the real witnesses – those who told Mr. Ojha what happened – could provide a reasoned basis for assessing the hearsay information that those witnesses shared with Ojha. Without hearing from them or having alternative indicia of reliability relating to what they said, any decision by the jury to rely on what Mr. Ojha heard these declarants say would be arbitrary.

[64]  ... The trial judge was not obliged to treat that statement as containing double hearsay based solely on Mr. Ojha’s after-the-fact testimony that it was based on hearsay. However, the jury could not ignore the claim that his police statement was based on what others had told him. It was for the jury to determine whether to accept Mr. Ojha’s testimony to this effect. The trial judge was therefore entitled to determine the admissibility of the K.G.B. statement in its own right, and to leave it to the jury to assess whether to credit Mr. Ojha’s claim that his hearsay statement was itself based on hearsay from others.

[65] The judge was nonetheless obliged to direct the jury accurately on how to proceed if they accepted Mr. Ojha’s testimony in that regard. The jury should have been told that if they accepted Mr. Ojha’s testimony that the K.G.B. statement was based on what he had been told, they should disregard his K.G.B. statement in its entirety, since they would have no available means to judge the reliability of what Mr. Ojha had been told. Reliance on the K.G.B. statement would therefore be arbitrary.

[66] In my view, this direction was not sufficient. By telling the jury only that a double hearsay finding on their part “would affect the reliability” of his statement, the trial judge was leaving it open to the jury to act on that double hearsay evidence....

[69]  I would therefore give effect to this ground of appeal.

[85] Accordingly, I would set aside the appellant’s manslaughter conviction and order a new trial.

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