This week’s top three summaries: R v RS, 2019 ONCA 832, R v Saleh, 2019 ONCA 819, and R v Lewis, 2019 ONSC 5919.
R v RS (ONCA)
[October 22/19] Self Defence using a Firearm - 2019 ONCA 832 [Reasons by Nordheimer J.A. with Huscroft, and Paciocco JJ.A. Concurring]
AUTHOR’S NOTE: It is difficult to justify shooting someone in the back as self-defence. However, that is exactly what the Court of Appeal approved in R v RS. Granted, the particular factual matrix allowed for it. The case serves as an excellent example of the principle that detached reflection cannot be demanded in the presence of an uplifted knife. People reacting in the moment to preserve their life are not always capable to making the best decision in the circumstances. Defence lawyers can use this case to provide a powerful analogy in other cases of self-defence.
 R.S., a young person as defined by the Youth Criminal Justice Act, S.C. 2002, c. 1, was convicted on March 24, 2014, after a judge-alone trial, of manslaughter, aggravated assault, careless use of a firearm and possession of a firearm without a licence or registration. He appeals from the convictions of manslaughter, aggravated assault and careless use of a firearm. He does not appeal from the conviction for the firearm possession offence.
 The appellant was attacked by five men in the lobby of an apartment building in which he lived. The apartment building is located in the Jane and Woolner neighbourhood of Toronto. A gang, known as the Gators, operates in this neighbourhood. At least two of the five attackers were members of this gang although the appellant was unaware of this at the time.
 On April 12, 2012, around 9:49 p.m., the appellant left his apartment to meet a friend. He had a gun in his pocket. The appellant had a gun because he had been shot at on two prior occasions. Indeed, on the second occasion, someone called his name before shooting at him from a car. As a consequence of these events, the appellant feared for his life. Following the second shooting, which occurred about two months prior to the attack here, the appellant purchased a gun and thereafter carried it with him for protection.
 The appellant took the elevator down from his apartment and eventually exited his building. He was out of the building for about 14 minutes. During this time, the attackers were captured on surveillance video, initially in the lobby of the appellant’s building and then congregating in the lobby of the apartment building directly opposite.
 A short time after the appellant re-entered the lobby of his apartment building, the attackers left the adjacent apartment building and entered the lobby of the appellant’s apartment building. One of the attackers had a baseball bat. The appellant opened the door to the lobby of his apartment building for the lead attacker, oblivious as to what was about to happen.
 After the appellant opened the lobby door, he turned and walked towards the elevators. His back was to the other men. The attacker with the baseball bat (the deceased) hit the appellant in the back of the head. The appellant fell to his knees and the gun fell out of his pocket.
 The appellant picked up the gun. He fired four shots. As the shots were fired, the attackers were running out of the building. One attacker ran north down a hallway. Three of the attackers ran out the lobby door. The fifth attacker was already outside the lobby. The deceased was hit in the back by a bullet and fatally injured, although he nonetheless managed to escape the building and run across the street. Another attacker was grazed and injured. As found by the trial judge, the shots were fired within, at most, five seconds.
 An accused person who believes on reasonable grounds that force is being used against him may do something that otherwise would be an offence but be acting lawfully, and thus not be guilty of any crime, provided that what he does is for the purpose of defending or protecting himself from that use of force and the actions he takes are reasonable in the circumstances as the accused person knew or honestly believed them to be. That is the definition of self-defence. The central issue at trial in this case was whether the appellant acted in self-defence.
 The appellant contended that he had fired his gun in order to protect himself against what he perceived would be the continuation of the initial attack....
 ...the analysis is effectively the same in this case under either the new or the old self-defence provisions. In these reasons, I will refer to the old provision that was, in fact, applicable to this case, namely, Criminal Code, R.S.C. 1985, C-46, s. 34(2), as amended by S.C. 1992, c. 1, s. 60(F), which reads:
Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
 There are three constituent elements of self-defence under this section. They are set out in R. v. Pétel, 1994 CanLII 133 (SCC),  1 S.C.R. 3, at p. 12:
the existence of an unlawful assault;
a reasonable apprehension of a risk of death or grievous bodily harm; and
a reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary.
 There is no issue in this case that the subjective component was made out for each of the three elements. There also does not appear to be any dispute that the objective component was made out for the first and second elements. It is the objective component for the third requirement that is in issue.
 Having reviewed the appellant’s evidence, I am satisfied that the trial judge misunderstood what the appellant said. As I demonstrate below, the appellant did not say that, when he fired the shots, he knew that the attackers were running away, nor can this conclusion be reconciled with the other evidence.
 I also believe that, in reaching her conclusion on self-defence, the trial judge failed to give proper consideration to the actual circumstances in which the events transpired. The appellant had his back to his attackers. Without any warning, he was hit in the back of the head with a baseball bat with sufficient force that he fell to his knees, during which time his gun fell out onto the floor. As the appellant responded to the blow to his head, he grabbed the gun, swung around and fired in the direction of his attackers. As found by the trial judge, and as seen on the video surveillance, the time between the attack and the shots being fired was less than five seconds.
 With respect, given how the events unfolded in this case, I believe that the trial judge tested the actions of the appellant against a standard that is much too high for the proper application of self-defence. The trial judge required the appellant, in less than five seconds, to process what had happened, evaluate the potential threat, and essentially react in a reflective and measured fashion. The reasonableness of that standard must be contrasted with the reality of the situation which was:
- The appellant had already been struck with force on the back of his head with a baseball bat. Indeed, he believed he had been shot.
- He had reason to believe these men would continue to attack him, and possibly kill him.
- He had been shot at twice before, so he reasonably believed his life was in danger. The trial judge accepted that was the case.
- The appellant was alone against five men who had engaged in a group attack on him, at least one of whom was armed with a baseball bat.
- The appellant was inside the lobby of the building and the building’s closest exit was behind him where his attackers were located.
 In considering the context in which these events occurred, the trial judge referred to a basic principle regarding self-defence: we do not expect persons, who are attacked, to weigh their response to the attack to a nicety. Yet, as I shall explain, I believe that is what the trial judge required the appellant to do in this case.
 Further, all of this must be considered against the reality that four shots were fired within, at most, five seconds. To hold that the appellant was required, in those seconds, to turn his mind to these unfolding events and make a rational and detached decision whether he reasonably needed to fire his gun – and, if so, how many times – in order to prevent any further attack, and thus preserve his life, is, with respect, to place an unreasonable burden on the appellant. It effectively requires him to weigh to a nicety the degree of his response. The unreasonableness of that burden is compounded by the trial judge’s implicit criticism of the appellant’s actions that he did not fire the shots in the air or in the ground (para. 147).
Remedy - Crown Should Not Get a Second Chance to Call a Better Case
 The proper result in this case is for acquittals to be entered on the charges of second-degree murder, attempted murder, and careless use of a firearm. I reach that conclusion based on my view that the verdicts are unreasonable as they are not properly supported by the evidence adduced at trial. Further, this is not a case where there was an evidentiary error that could be corrected at a new trial. In other words, it is not a case where evidence was improperly admitted or excluded. The respondent laid out the case that it asked the appellant to meet. If there is other evidence that the respondent might have adduced but chose not to, it ought not to be able to correct that tactical decision through a new trial.
 The Supreme Court of Canada has noted that “[w]here a conviction is set aside on the ground that the verdict is unsupported by evidence, the court of appeal, absent legal errors in respect of the admissibility of evidence, will usually enter an acquittal”: R. v. Pittiman, 2006 SCC 9 (CanLII),  1 S.C.R. 381, at para. 14. As Doherty J.A. noted in R. v. Harvey, 2001 CanLII 24137 (ON CA), 57 O.R. (3d) 296 (C.A.) at para. 30, aff’d 2002 SCC 80 (CanLII),  4 S.C.R. 311:
Usually, if the Court of Appeal allows a conviction appeal on the ground that the verdict is unreasonable it will enter an acquittal. An acquittal is the appropriate order because it would be unfair to order a new trial and give the Crown a second opportunity to present a case on which a reasonable trier of fact could convict.
 Accordingly, I would enter acquittals on the charges.
R v Saleh (ONCA)
[October 15/19] First Degree Murder: Party Liability and First Degree via Kidnapping - Corroboration of Vetrovec Witnesses - 2019 ONCA 819 [Reasons by David Brown J.A., with L.B. Roberts J.A., and B. Zarnett J.A. Concurring]
AUTHOR’S NOTE: This decision turns on the mental element required for aiding a murderer. The ONCA provides a good overview of the mental element required of a party to such an offence. Ultimately, here the instruction was far too general in respect of the specific mental intent required. It had the effect of broadening the class of liable individuals in an unfair fashion. As well, we are reminded that hearsay cannot corroborate a Vetrovec witness, no matter how it's dressed up.
 The appellant, Fadi Saleh, was found guilty by a jury of the first degree murder of Hussein El-Hajj Hassan following a seven-week trial. It was his second trial on the first degree murder charge; in 2013 this court overturned Saleh’s prior conviction for first degree murder: R. v. Saleh, 2013 ONCA 742 (CanLII), 303 C.C.C. (3d) 431 (“Saleh 2013”).
 The Crown’s theory was that at some point in 2004, Hassan decided to cut Saleh out of the sales chain by going directly to Ebrekdjian to purchase drugs, in retaliation for which Saleh orchestrated Hassan’s murder in August 2004.
 Central to the Crown’s case was the evidence of Mark Yegin, who testified that he witnessed Saleh and Shant Esrabian shoot Hassan in a secluded, rural area west of Ottawa. In Saleh 2013, Watt J.A. commented on “the manifest unreliability of Yegin” who “was charged with the same murder” and “had a substantial motive to assign blame to others”: at para. 91.
 Saleh’s grounds of appeal all concern the trial judge’s charge: the paths to liability for first degree murder that she left with the jury; the legal adequacy of her cautions pursuant to Vetrovec v. The Queen, 1982 CanLII 20 (SCC),  1 S.C.R. 811; and her failure to instruct the jury on the use they could make of a jail-cell conversation between Saleh and Ebrekdjian.
 Hassan went missing on Friday, August 20, 2004. He had told his wife, Geagea, and others that he was going to Cornwall from Ottawa that evening with Mark Yegin to meet up with Paul Porter, a Hell’s Angels member, and Paul Nassif, another individual who worked in the Cornwall cocaine business, to discuss distribution problems Hassan was encountering in Cornwall. Hassan told Geagea that Yegin had set up the meeting. The plan for the night of August 20 was for Hassan and Yegin to pick up Porter, who lived just west of Ottawa, and then go to meet Nassif.
 Hassan and Abbas left the house of a mutual friend, Marwan Sablani, in separate cars at around 7:30 p.m. Hassan told Abbas that he would pick up Yegin, who lived in an apartment used by Hassan as a stash house, and then drive to Cornwall. While on the road, Hassan called his wife just before 8 p.m. and Nassif at 8:11 p.m. He told Nassif that he was going to be a little late.
 Abbas and Habib arrived at Nassif’s house around 8:45 p.m., but Hassan never showed up. Abbas and Nassif tried to reach Hassan by phone. Eventually, Sablani reached Yegin, who said that he did not know where Hassan was and that the meeting had been cancelled.
 A few days later, Labrouki and Abbas met with Saleh and Ebrekdjian. When they asked Ebrekdjian what had happened to Hassan and the $570,000 Hassan had given him, Ebrekdjian responded that Hassan had sent someone to pick up the drugs from him in Toronto on August 21 and Hassan actually owed Ebrekdjian an additional $80,000. While Saleh offered to help find Hassan, he said that Hassan was not a good man and “doesn’t respect the rules of … selling drugs.” Saleh also asked Hassan’s wife not to mention his name to the police.
 Yegin accepted a police offer of “use immunity” and provided a sworn videotaped statement. In it he said that: Saleh had killed Hassan on August 20 by shooting him in the head; Saleh was the sole shooter; and Saleh had used two different guns.
 In the face of this evidence, Yegin changed his story, now claiming that Esrabian had shot Hassan twice, following which Saleh fired one bullet into Hassan’s head. Following this statement, the police re-arrested Yegin and charged him with first degree murder.
Aiding and Abetting First Degree Murder under Criminal Code ss. 21(1)(b) and (c)
 The actus reus and mens rea for aiding or abetting are distinct from those of the principal offence: R. v. Briscoe, 2010 SCC 13 (CanLII),  1 S.C.R. 411, at para. 13. The act or omission relied upon must in fact aid or abet, and it must also have been done with the particular intention to facilitate or encourage the principal’s commission of the offence, with knowledge that the principal intends to commit the crime: Briscoe, at paras. 14, 16-18; Pickton, at para. 76.
 To be found liable for first degree murder as an aider or abettor of a planned and deliberate murder, an accused must have knowledge that the murder was planned and deliberate; wilful blindness will satisfy the knowledge component of s. 21(1)(b) or (c): Briscoe, at paras. 17, 21, 25. In Almarales, this court described in more detail the mens rea element for first degree murder, at para. 70:
The fault requirement, as in all cases of secondary participation by aiding, consists of two elements: an intention to help the principal and knowledge of the principal’s intention. An aider must know that the principal intends to commit a planned and deliberate murder, and intend to help the principal to commit a planned and deliberate murder. The aider may acquire his or her knowledge that the murder is planned and deliberate through actual participation in the planning and deliberation, or by some other means. The means of acquiring knowledge are as irrelevant to culpability as proof of knowledge is essential to it. [Italics in original; underlining added; citations omitted.]
 In Almarales, this court described the trial judge’s duty when instructing a jury about an accused’s culpability for first degree murder by way of secondary participation: the jurors need to know the essential elements of murder, the basis upon which murder becomes first degree murder, the constituent elements of aiding and abetting and, most especially, the specific basis upon which the accused’s liability as a secondary participant in first degree murder was to be decided: at paras. 76 and 81. Drawing a clear distinction between the legal basis for the perpetrator’s liability and the basis of liability of the helper is important because the facts which the Crown must prove beyond a reasonable doubt differ depending upon whether liability flows as a perpetrator or as an aider: R. v. Josipovic, 2019 ONCA 633 (CanLII), at para. 48.
The Charge to the Jury
...It is sufficient if you are satisfied beyond a reasonable doubt, having considered all the evidence, that Fadi Saleh actively participated in the killing of Hussein El-Hajj Hassan. It is not sufficient that Fadi Saleh was merely present or took a minor role. [Emphasis added.]
 After reviewing the evidence from Yegin, the pathologist, and the ballistics expert, the trial judge instructed: “If you are satisfied beyond a reasonable doubt that Fadi Saleh shot Hussein El-Hajj Hassan or was otherwise an active participant in his killing, you should find that the Crown has proven this element of the offence of murder” (emphasis added).
 While the general instructions in the “Modes of Participation” section of the charge correctly set out the elements for aiding or abetting, the subsequent instructions in the “state of mind” and “planned and deliberate” sections obscured the need to find proof of the elements of aiding or abetting: the act of assistance or encouragement, and the intention to assist or encourage a planned and deliberate first degree murder: R. v. Mendez, 2018 ONCA 354 (CanLII), at para. 9.
 The trial judge’s instructions on “planned and deliberate” did not provide the “more,” as they lacked any reference to the elements of liability as an aider or abettor. The observation by the Nova Scotia Court of Appeal in R. v. Kelsie, 2017 NSCA 89 (CanLII), 358 C.C.C. (3d) 75, at para. 88, rev’d 2019 SCC 17 (CanLII), 433 D.L.R. (4th) 260, applies equally here:
It is not sufficient for the trial judge to have charged on planning and deliberation as a principal and then, without the jury being told, assume that they would necessarily come to the conclusion that aiding first degree murder required the appellant to have knowledge of planning and deliberation by [the principal].
 Finally, any reliance on the term “active participant” as a substitute for express instructions on the elements of aiding or abetting runs up against the difficulty that in the “planned and deliberate” section of the charge, the term is not used at all. That part of the charge did not draw a distinction between Saleh’s role as a principal, or as an aider or abettor.
 Accordingly, even reading the charge in a broad, functional manner, I am not persuaded that the jury would have understood that to convict Saleh of first degree murder on the basis of aiding or abetting a planned and deliberate murder, they had to be satisfied that the Crown had demonstrated that Saleh knew that Esrabian intended to commit a planned and deliberate murder.
. [Also], although the trial judge reviewed that evidence, she did not relate it to the elements required to prove Saleh’s culpability, as an aider or abettor, for a planned and deliberate murder. Indeed, as mentioned, the “planned and deliberate” section of the charge lacked any treatment of the elements of aiding and abetting.
First Degree Murder via Kidnapping - s. 231(5)(e
The Jury Charge
 After charging the jury on planned and deliberate first degree murder, the trial judge proceeded to instruct them on first degree murder pursuant to Criminal Code s. 231(5)(e):
Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:
(e) section 279 (kidnapping and forcible confinement)[.]
The trial judge presented this route of liability as one available in the event the jury, or a juror, was not satisfied that Saleh was guilty of planned and deliberate murder, stating:
If you are satisfied beyond a reasonable doubt that Fadi Saleh caused the death of Hassan, did so unlawfully and that he had the state of mind required for murder, but you are not satisfied that Fadi Saleh committed a murder that was both planned and deliberate, then you must go on to consider the questions that follow. [Emphasis in written charge.]
 The trial judge then instructed the jury on a possible path to liability for first degree murder under Criminal Code s. 231(5)(e) on the basis that: (i) Saleh kidnapped Hassan with the intent to confine Hassan against his will; (ii) the kidnapping and murder of Hassan were part of the same series of events; and (iii) Saleh was an active participant in the killing of Hassan.
 The trial judge concluded that constructive murder under s. 231(5)(e) had to be left with the jury because there was
an air of reality to the idea that all of the events and the evidence that we have, the whole body of evidence that we have, could have been for the purpose of merely intimidating, threatening or assaulting. We don’t know, and we will never know, but that possibility is not impossible … It has an air of reality, which means that the state of mind aspect has to go to the jury, but if the state of mind aspect has to go to jury, then by definition, we have to look at the concept of kidnapping, and kidnapping requires the movement of a person against his will from point A to point B – we clearly have that – for a specific purpose. The purpose in this case being forcible confinement.
 In the result, the trial judge divided her charge on s. 231(5)(e) into three questions: (i) Did Saleh kidnap Hassan and do so with the intent to confine Hassan against his will? (ii) Were the kidnapping and murder of Hassan part of the same series of events? (iii) Was Saleh an active participant in the killing of Hassan?
 In R v. McGregor, 2019 ONCA 307 (CanLII), 145 O.R. (3d) 641, at para. 60, this court summarized the five essential elements for first degree murder under s. 231(5) as follows: (i) the accused committed or attempted to commit a listed underlying crime; (ii) the accused murdered the victim; (iii) the accused participated in the murder in such a manner that he was a substantial cause of the victim’s death; (iv) no intervening act by somebody else resulted in the accused no longer being substantially connected to the victim’s death; and (v) the underlying crime and the murder were part of the same transaction.
 As I will explain, I conclude that there was an evidentiary basis on which to leave first degree murder under s. 231(5)(e) with the jury. However, the trial judge failed to assist the jury in understanding how, having rejected planned and deliberate murder in which the movement of Hassan to the remote site was a key part of the plan, the evidence nonetheless could support a finding of guilt under s. 231(5)(e) using kidnapping as the predicate offence. Adding s. 231(5)(e) as an additional path to liability for first degree murder further complicated the jury’s task, and the charge failed to provide the jury with the tools they required to deal with that increased complexity.
 First, the trial judge structured her charge and decision tree so that the jury first had to consider whether they were satisfied that Saleh had committed a planned and deliberate first degree murder. In the event they had a reasonable doubt about whether the murder was planned and deliberate, they could then consider whether he was guilty of first degree murder under s. 231(5)(e). The instructions did not provide any guidance to the jury about how they could have a reasonable doubt that the murder for which Saleh was responsible at law was a planned and deliberate one – with the kidnapping forming a key part of the plan – but was one caused by Saleh while committing the predicate offence of kidnapping.
 I have posited a possible way, in para. 161 above, but the trial judge gave the jury no assistance on this point. Specifically, she did not identify for them what evidence relevant to the issue of planning and deliberation might not be relevant to an analysis under s. 231(5)(e).
 When proceeding under s. 231(5)(e), the Crown must establish that the accused committed the predicate offence and that he or she also committed the murder; where liability of the accused is based on secondary, party liability, the Crown must first establish that the accused was a party to both offences before s. 231(5)(e) can be applied: R. v. Kirkness, 1990 CanLII 57 (SCC),  3 S.C.R. 74, at pp. 86-87. Regardless of the basis upon which an accused may be guilty of first degree murder, the trial judge must clearly focus on the additional elements of first degree murder as defined in s. 231(5) and relate the evidence to those elements: R. v. Ferrari, 2012 ONCA 399 (CanLII), 287 C.C.C. (3d) 503, at para. 72.
 The trial judge’s charge made no reference to the mode or modes of Saleh’s participation in the predicate offence of kidnapping or the murder. She did convey s. 231(5)(e)’s requirement that Saleh be a “substantial cause of the victim’s death.” This instruction goes some way to offsetting the omission of a specific instruction on party liability for murder in this section of the charge. However, the evidence the jury heard about the predicate offence of kidnapping was that it was Yegin, not Saleh, who transported Hassan to the remote site. While the jury heard evidence about Saleh telling Yegin to meet Hassan at his apartment and making hand gestures while passing Yegin’s vehicle on Highway 417, the trial judge’s instruction on the predicate offence of kidnapping did not include any reference about how to examine Saleh’s liability for that offence as a party. That was a material omission from the charge: Almarales, at para. 84.
 [The Trial Judge's] instructions on s. 231(5)(e) did not provide the jury with the legal framework to assess Saleh’s liability based on secondary participation in the kidnapping, as it was Yegin, not Saleh, who drove Hassan to the site where he was shot. Nor did she assist the jury in understanding how, having a reasonable doubt on whether the murder was planned and deliberate, where kidnapping was an integral part of the plan, the evidence remained available to find, beyond a reasonable doubt, that Saleh’s involvement in the movement of Hassan to the remote site satisfied the key elements to find his participation in a kidnapping for the purposes of s. 231(5)(e).
Vetrovec Witnesses and Corroboration
The Jury Charge
Rafei Ebrekdjian has testified that the money he received from Mr. Saleh was regularly less than what had been agreed upon. Johnny Geagea also testified that Mr. Saleh told him that their money was short, when they knew that it was not. This is another example of evidence that you may find to be confirmatory evidence. [Emphasis added.]
 Saleh submits that the trial judge erred in using this example because Geagea’s evidence was hearsay. In his testimony Geagea was clear that he had no independent knowledge of Saleh claiming that the money had been short; instead, Hassan had provided Geagea with this information. Saleh contends that since Geagea’s evidence on this point was inadmissible, the jury was not permitted to use it to restore confidence in Ebrekdjian’s testimony.
 Impermissible hearsay evidence is not capable of providing independent confirmation of a Vetrovec witness. Indeed, a trial judge is obliged to explain to the jury why they cannot rely on that evidence as confirmatory: R. v. Magno, 2015 ONCA 111 (CanLII), 321 C.C.C. (3d) 554, at para. 42, leave to appeal refused,  S.C.C.A. No. 145. The trial judge recognized as much in her comments during the pre-charge conference. However, she did not regard as hearsay the evidence of Geagea that she included in the caution.
 With respect, the trial judge misapprehended this part of Geagea’s evidence. Certainly, when Geagea first addressed the matter in his testimony, he clearly left the impression that Saleh had communicated his concern about the shortfall in the money directly to Geagea. But following a recess, Crown counsel indicated that he wanted “to just go back and touch on a few areas that we discussed earlier.” One of the matters that Crown counsel “wanted to clarify was we discussed – you told us earlier about – I’ll call them problems with the drug supply from Mr. Saleh.” Geagea then clarified that he learned about Saleh’s concern regarding the shortfall in money from Hassan, not from Saleh.
 Given that clarification, the trial judge misstated Geagea’s evidence when, in her Vetrovec caution example, she told that jury that Geagea testified that “Mr. Saleh told them that their money was short, when they knew it was not.” In the result, she left with the jury hearsay evidence as an example of independent evidence confirmatory of Ebrekdjian’s testimony.
 Accordingly, I conclude that the trial judge misapprehended Geagea’s evidence on the point and, as a result, erroneously left impermissible hearsay with the jury as an example of independent confirmatory evidence.
R v Lewis (ONSC)
[October 11/19] – Charter s.10(b) - Right to Choice of Counsel - Police Attempts to Influence Accused in Choice – 2019 ONSC 5919 [Christie J.] [Presently Available at 2019 CarswellOnt 16537]
AUTHOR’S NOTE: Herein, Justice Christie applied the case law surrounding the right to counsel of choice to circumstances in which the police made comments about the accused's choice after there was some delay in reaching their counsel of choice. They ultimately funnelled the accused towards calling duty counsel instead of a trusted family lawyer. Speaking with duty counsel in these circumstances did not suffice to save them from a finding of a breach.
3 In the early hours of June 25, 2012, one or more individuals were involved in an altercation with a man named Ryan Turcotte, which resulted in Mr. Turcotte suffering a severe brain injury. Aaron Lewis and Courtney Lewis were jointly charged that they did commit the offence of aggravated assault in relation to this altercation that occurred in a parking lot at the Duckworth Plaza in Barrie.
4 The police called the Applicant, Aaron Lewis, on June 26, 2012 to advise him that he was going to be charged with aggravated assault. The Applicant waited outside his home for police to arrive. At 12:53 p.m., Officer Greg Brickell arrived at the Applicant's home, to find the Applicant waiting in the driveway. He advised the Applicant that he was under arrest for aggravated assault and handcuffed him. The Applicant was placed in the rear of the police cruiser and advised of his rights to counsel.
5 The Applicant indicated that he wished to speak with a lawyer named Jamie Fox. He did not express any interest in speaking to duty counsel. At that point, the Applicant's father approached and advised he was going to get in contact with a Toronto lawyer, named Jamie Fox, on behalf of his son. The Applicant's father did not have the number at that time.
6 At 1:20 p.m., the Applicant was paraded at the police station. He was then searched, cautioned, given his right to counsel for a second time, and lodged in a cell. Officer Troy Armstrong stood by in the booking area while the Applicant was processed. According to Officer Armstrong, while the Applicant was being booked he requested to "speak with his family's lawyer, Jamie Fox". Officer Armstrong responded that he would give him a call.
8 At 2:04 p.m., Officer Armstrong called the business line of Jamie Fox and used the extension provided. The call went to voicemail for Mr. Fox. The voicemail indicated that he was not in the office currently, therefore, Officer Armstrong left a message. On the voicemail, there was also a message providing another extension to call in order to reach Mr. Fox. Therefore, after leaving a message for Mr. Fox on his personal voicemail, Officer Armstrong then called back, using the second extension provided, and spoke with a person. The person identified themselves as Mr. Fox's assistant. The person advised Officer Armstrong that Mr. Fox was away from the office until at least 5:00 p.m. The assistant also advised that Mr. Fox was not a criminal lawyer, but that he did civil litigation. Officer Armstrong left his information with the assistant and advised them that Aaron Lewis was in custody. He did not ask for a cell phone number or any other means to contact Jamie Fox. Officer Armstrong was under the impression that, even when Mr. Fox did return to his office, he was not going to be making any calls.
9 Officer Armstrong then spoke with the Applicant in the cells and advised him of the information that Mr. Fox was not a criminal lawyer and that he may not be available all day. He asked if there was another lawyer or if he would like to speak with duty counsel. The Applicant then requested to speak to duty counsel. Officer Armstrong agreed that the Applicant, Mr. Lewis, had not brought up duty counsel until he mentioned it.
12 The officer agreed at the preliminary hearing that the Applicant had never expressed any interest in duty counsel until he brought it up and that the Applicant had consistently requested Jamie Fox. It was only after the officer presented the Applicant with the two options of speaking with duty counsel or to another lawyer, that he then said he would speak to duty counsel. Officer Armstrong telephoned duty counsel at 2:12 p.m. and left a message. He stated that they generally take 15 or 20 minutes to call back. He did not speak to duty counsel directly, however, there was a note on the prisoner's log that the Applicant did speak to duty counsel.
14 After speaking with duty counsel, at 3:21 p.m., the Applicant was escorted to the interview room. He provided a statement to the police which was approximately 27 minutes in length.
Choice of Counsel
24 There is no question that the right to counsel includes a right to counsel of choice. In R. v. McCallen,  O.J. No. 202 (C.A.), the court discussed the importance of this right and the rationale behind it. The court stated:....
 The reasons why clients may choose one lawyer rather than another may vary widely and will often turn on personal preferences or other factors that do not lend themselves to objective measurement. Professional reputation and competence will no doubt be important factors in the choice of counsel, but it would understate the full nature of the relationship to suggest that the choice be limited to those considerations. The very nature of the right is that the subjective choice of the client must be respected and protected. Absent compelling reasons involving the public interest, the government and the courts need not be involved in decisions about which counsel clients may choose to act on their behalf.
 In addition to constituting a valuable personal right to clients, s. 10(b) provides a right that is an important component in the objective perception of fairness of the criminal justice system. Criminal proceedings are adversarial in nature and pit the accused against the authority of the state. Without adequate safeguards the resulting contest may be unfairly weighted in favour of the state. The right to have the assistance of counsel is high on the list of those protections for accused persons which enable them to fully defend the charges brought against them. Including with this fundamental right to counsel, the additional right to choose one's own counsel enhances the objective perception of fairness because it avoids the spectre of state or court interference in a decision that quite properly should be the personal decision of the individual whose interests are at stake and whose interests the counsel will represent.
 The corollary to this point, which is central to this case, is that the perception of fairness will be damaged, and in many cases severely so, if accused persons are improperly or unfairly denied the opportunity to be represented by the counsel they choose.
26 There is, of course, a duty on the detainee to be reasonably diligent in the pursuit of their rights. [See R. v. Bartle,  3 S.C.R. 173]
28 The case of Willier was, quite obviously, different than the circumstances in R. v. Prosper,  3 S.C.R. 236, in which the failed attempt to reach counsel of choice resulted in no legal advice from counsel at all — the same as in R. v. Ross,  1 S.C.R. 3. Prosper, therefore, mandated that the police, in the circumstances of a waiver of rights to counsel, explicitly inform the detainee of his or her right to a reasonable opportunity to contact counsel and of the obligation on the part of the police to hold off in their questioning until then. However, in Willier, where the detainee, faced with the reality that they were unable to reach their counsel of choice and then spoke to another lawyer, the Supreme Court said those circumstances are different. The court stated:....
 The circumstances of this case are not analogous. The concerns animating the provision of a Prosper warning do not arise when a detainee is unsuccessful in contacting a specific lawyer and simply opts to speak with another. In no way did Mr. Willier attempt to relinquish his right to counsel and thus any opportunity to mitigate his legal disadvantage. He made no attempt to waive his s. 10(b) right. Instead, unsuccessful in contacting Mr. Royal, he exercised his right to counsel by opting to speak with Legal Aid. As such, the police were under no obligation to provide him with a Prosper warning, and its absence fails to establish a Charter breach.
29 The comments in Willier would seem to be premised on the fact that the detainee was given an option and made a choice, the very premise upon which 10(b) Charter rights are based. The existence of a true option and an informed choice must, therefore, be critical in any s. 10(b) analysis.
32 It should be noted that generally, in Ontario, the police do not provide telephones, telephone directories, or any tools for that matter, to detainees. Instead, the police take the information from the detainee and then make the call. In these circumstances, the police officer has complete control over what steps are taken to reach counsel of choice. In these circumstances, some courts have held that more than perfunctory effort must be required in order to demonstrate reasonable diligence.
33 In R. v. Maciel,  O.J. No. 4789 (C.J.), Stribopoulos J. questioned police operational procedures, specifically the fact that some police forces have assumed the responsibility of contacting counsel on behalf of those who are in police custody as opposed to allowing the person in custody access to a phone, a phone book or even the Internet. The court stated:
 If the police did not assume this responsibility, those in detention would be expected to exercise reasonable diligence in contacting their lawyer of choice. Where the police take on this function on behalf of the detainee, it seems eminently sensible to subject their efforts to the same standard. Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing. In that regard, I completely agree with the comments of Justice Horkins, who noted:
When the police, as an institution, decide to take control of the accused's means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply.
I believe this standard is in keeping with the duty upon the police to facilitate contact with a detainee's counsel of choice. I therefore intend to apply it in assessing the adequacy of the police efforts in this case.
35 In addition to Maciel referred to above, other Ontario Court of Justice decisions have suggested that if the police are going to continue to maintain control over contacting counsel on behalf of detainees, this should lead to a heightened duty on the police to ensure that appropriate steps are taken to reach counsel. See: R. v. Ali,  O.J. No. 1662 (C.J.); R. v. Ebrahim,  O.J. NO. 6836 (C.J.) It would appear that the once acceptable perfunctory effort may no longer reach the reasonable diligence standard, especially where the police choose to control the tools necessary for the detainee to reach counsel, such as telephones and telephone directories.
38 The courts have held that there is no breach of s. 10(b) of the Charter if the detainee speaks to duty counsel after asking to speak to their own counsel, where the police first attempt to contact private counsel and are unable to do so. However, this is premised on the fact that the police did not influence that decision in any way.
39 More recently, in the case of R. v. Vernon,  O.J. No. 1383 (C.A.), the Court of Appeal for Ontario upheld the decision of the summary conviction appeal court, which upheld the trial judge's decision, finding a s. 10(b) violation occurred where the police failed to facilitate contact with the detainees counsel of choice....In Vernon, the accused testified that he "didn't have a choice" as far as waiting for his chosen counsel. The police officer had simply said, "I can't get a hold of Mr. Carruthers, come talk to duty counsel". He testified, "I wasn't given an option, and nor did I know I had an option". Within 15 minutes of leaving a message for the lawyer of choice, the arresting officer contacted duty counsel. The summary conviction appeal court judge stated, "Within 15 minutes of leaving that message, the respondent was provided with what seemed to him to be the only reasonable chance that he would get to speak to a lawyer. Although the officer testified that he would have allowed the respondent to speak to his lawyer of choice, had he called, the trial judge held that it was not clear whether this was explained to the respondent."
41 In many circumstances, counsel of choice will not be immediately available. This is simply reality. In those circumstances, the detainee is entitled to wait a reasonable time before they will be expected to contact alternative counsel. What amounts to a reasonable time will depend on the facts of any given case. It would appear to be only logical that, where the police are suggesting the detainee forego their counsel of choice and speak to other counsel or duty counsel, the police must, minimally, advise the detainee that they are entitled to wait a reasonable time to speak to their counsel of choice. The detainee should never be left with the impression that where their counsel of choice cannot be immediately reached, the only option at that point is duty counsel. During this waiting period, the police certainly should not be encouraging the detainee to forego their original choice and to make another choice. If this is permitted, the right to counsel of choice would be meaningless. The officer's opinion as to the adequacy of chosen counsel is completely irrelevant and should never play a part in the informational or implementational components of rights to counsel.
42 When this same application was argued as part of the first trial in this matter, cited as R. v. Lewis,  O.J. No. 7796 (S.C.), Healey J. stated:
 The rights granted to an accused under s. 10(b) must never be modified by a police officer's perception of the area of expertise of the lawyer from whom the accused person wishes to seek advice, even if factually correct. The choice of the accused person to contact a particular lawyer upon detention must be respected and reasonably facilitated, regardless of whether that lawyer practices criminal law . . .
This court is in absolute agreement with these comments.
44 Given that the Applicant, and his father, had expressed on more than one occasion in this short period of time that he wished to speak to Jamie Fox, the police were obligated to hold off from interviewing the Applicant until he had a reasonable opportunity to exercise his right to speak to counsel of his choice. This court does not go so far as to say that it is necessary in every case for the officer to advise the detainee of their duty to hold off. However, where the accused has clearly expressed their desire to speak to a particular lawyer that cannot be immediately contacted, and where, within that reasonable waiting time, the police choose to present the detainee with the idea of speaking to duty counsel or another lawyer, certainly the police must tell the detainee that they are entitled to wait a reasonable time to connect with counsel of choice and that the police have a duty to hold off on questioning during this time. The length of time that is reasonable will differ from case to case depending on the circumstances.
45 The onus lies on the Applicant to demonstrate, on a balance of probabilities, that his s. 10(b) rights have been breached. It is the view of this court that he has met that onus.
47 It is the view of this court that this was not a trivial breach. In circumstances of detention, the person is completely at the mercy of the police who are processing them. The right to counsel is afforded to a detainee to ensure that the detainee is aware of their rights when in those circumstances, and to provide advice to assist them with the choice of making a statement to the police or in other ways assisting with the investigation. Counsel of choice is the subjective right of the detainee. The police should never detract from that right by attempting to steer the detainee away from a lawyer of their choosing. It is the view of this court that once Officer Armstrong heard that Mr. Fox was a civil litigator, his attempts to find Mr. Fox came to an abrupt halt because he decided that this was not the type of lawyer that the Applicant needed. This was not Officer Armstrong's decision to make. It is not an onerous requirement to expect the police to allow the detainee to choose counsel without interference from the police. This court does not believe that the officers in this case were acting in bad faith. Nonetheless, the conduct cannot be mitigated by good faith, as it involved an unreasonable and complete disregard for basic requirements. See: R. v. Buhay,  S.C.J. No. 30 at para. 59.
48 Grant requires an examination of the police conduct and a determination of where it fits on a spectrum from a mere technical breach at one end to bad faith violations at the other. The circumstances of this case are that the officer undermined the Applicant's right to counsel by forming his own view of the chosen counsel, and then steering him away from the lawyer of his choosing and toward duty counsel. There was no reason for this. There was no urgency to having the Applicant interviewed immediately. The officer did not act in bad faith, however, his actions to steer the Applicant away from his counsel of choice, after having formed his own view of the adequacy of counsel chosen, certainly is a serious error.
50 With respect to the effect of the breach on the Applicant's protected interests, a violation of an accused's right to counsel will usually be found to significantly undermine that accused's right to make an informed decision of whether to speak to police or not. As stated fairly recently in R. v. Rover,  O.J. No. 4646 (C.A.)
 The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.
See also: Grant, at para. 77
51 The entire purpose behind s. 10(b) Charter rights, as referenced above, is to provide a detainee with informed choice; in particular, to provide access to legal advice in order to assist them in choosing whether or not to speak with the police or whether or not to cooperate in some way with the police investigation. Ironically, the Applicant was deprived of his opportunity to have those choices explained to him by someone he chose.
53 The infringement in this case was serious, and completely unnecessary. Consideration of this Grant factor favours exclusion.
55 ... The public is entitled to assume, and in fact expect, that when they are arrested by the police, basic proper procedures will be followed before an interview is commenced. At the point of detention, the detainee has very little power over what information they receive and what happens to them next. Section 10(b) is a right that is meant to create some balance in a very unbalanced situation. Being able to choose one's counsel is a critical feature in the public's perception of the criminal justice system. If the police are permitted to, unnecessarily, weigh in on which counsel a detainee should choose, the public will quite rightly be left with the impression that the right to counsel is no right at all.
57 The Applicant has demonstrated on a balance of probabilities that a breach of his s. 10(b) Charter rights has occurred. Having considered the Grant factors, the Applicant's statement to police will be excluded pursuant to s. 24(2).