The Defence Toolkit – April 13, 2024: “Murder Advice”

This week’s top three summaries: R v Amin, 2024 ONCA 237: #Mr Big and #murder advice, R v Patel, 2024 NSCA 40: #common sense, and R v NC, 2024 ONCA 239: #credibility of accused.

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R v Amin, 2024 ONCA 237

[April 3, 2024] Mr. Big, Bad Character, and Murder Advice - Convergence of Hart and Handy [Reasons by Tulloch C.J.O. with I.V.B. Nordheimer and S. Gomery JJ.A. concurring]

AUTHOR’S NOTE: While R v Hart mandates a particular form of consideration for bad character evidence exclusion, in this case, the operation yielded bad character evidence in the form of advice sought and given about how to commit a murder of a girlfriend. This type of evidence was led by the Crown for the purpose of proving the identification of the accused as the murder of his girlfriend. As can be imagined, the yield of bad character evidence in this operation was significant with both Hart bad character (ie. joining a criminal organization) and Handy bad character (ie. murder advice given and used for similarity with actual charged offence). Consequently, the ONCA assessment was that both the Hart and Handy tests had to be met by this sort of evidence. The potential of bad character evidence to poison the minds of jurors is highlighted throughout this judgment. Also, the Court notes that legal vacuums will not be created by minor tweaks to the Mr. Big format - police will not be permitted to avoid the robust legal test for this sort of evidence. This is at least the second time this author has seen this particular form of Mr. Big police attempt to obtain "murder advice". The popularity of this design should be re-thought by police investigating these sorts of cases as it inevitably creates massively prejudicial evidence that has a great chance of being misused by juries to convict people simple because they associate with bad people and have a tendency to give crime advice. 

[1] Evidence that accused persons committed bad acts other than the crime they are charged with committing is dangerous. This evidence can poison the jury and lead them to convict accused persons because they appear to be bad people who keep bad company, rather than because the Crown has proved that they committed the charged crime. The improper admission and misuse of such evidence can result in wrongful convictions. This risk is heightened where the Crown relies on similarities between the accused’s bad acts other than the crime charged and that crime to prove that the accused is the person who committed the crime because there is a risk that such similarities are merely a coincidence.

[2] Police undercover operations intended to elicit confessions pose these and other dangers. These operations frequently induce the suspect to join a fictitious organization and participate in simulated crimes or bad actions, culminating in an interview in which the organization’s boss asks the suspect to confess as the price of joining the organization. They inevitably elicit evidence of the suspect’s bad acts other than the charged crime by showing the suspect’s willingness to associate with bad people and/or perform simulated crimes or other wrongful acts that can be highly prejudicial. They also risk inducing false confessions because the suspect is motivated to join the organization and fears that failure to confess will result in rejection.

[3] The justice system has developed safeguards governing the admission and use of evidence of the accused’s bad acts other than the crime charged and statements by the accused made during police undercover operations to protect against wrongful convictions. Where the Crown uses evidence of the accused’s bad acts other than the crime charged to help prove the accused’s identity as the perpetrator, it can only be admitted if it is very similar to how the charged crime was committed and its value outweighs the risks that the jury will misuse it. Trial judges who admit this evidence must warn jurors that they cannot use it to convict accused persons simply because they appear to be bad people. Further, trial judges must carefully evaluate the reliability of statements made to undercover officers to guard against the danger of false confessions.

[4] The appellant, Najib Amin, argues that his conviction for murder should be set aside because the trial judge did not comply with these safeguards. The appellant was charged with murdering Sylvia Consuelo and the only live issue at his trial was identity. During a Toronto Police Service undercover operation investigating his involvement in Ms. Consuelo’s killing, he advised an undercover officer how to kill his girlfriend and evade detection, attempted to become business partners with undercover officers who claimed to have committed murder and concealed the evidence of it, and made other statements to them that the Crown sought to use against him at his trial. Crown counsel at trial argued that the appellant’s murder advice was similar to how the deceased was killed and should be admitted to prove the appellant’s identity as the killer. The trial judge admitted the murder advice to prove identity, and also admitted the other statements. He did not warn the jury about the dangers of misusing this evidence. The jury convicted the appellant of murder. On appeal, the appellant argues that the trial judge should not have admitted the appellant’s murder advice and should have warned the jury about the dangers of misusing that advice and the other statements.

[5] We allowed the appeal on the day we heard it because we agree with the appellant that the safeguards I have described broke down in his case. The murder advice risked causing the jury to convict the appellant because he appeared to be a bad person who sought to partner with a criminal and advised him how to kill and evade detection. The trial judge should not have admitted this highly prejudicial evidence to prove identity because it was not very similar to how the deceased was killed. The trial judge also should have, but did not, warn the jury that it could not misuse the murder advice and other incriminating statements to convict the appellant for being a bad person. These twin errors created a real risk that the jury wrongfully convicted the appellant because he appeared to be a bad person and not because the Crown proved that he murdered the deceased....

D. ANALYSIS

(1) The Governing Legal Framework: Handy and Hart

[27] Admitting evidence that an accused has committed bad acts other than the offence charged is dangerous. The Supreme Court of Canada has described such bad act evidence as poisonous and warned that its admission and use without proper safeguards risks wrongful convictions: Handy, at paras. 58, 138-141, 146; R. v. B. (F.F.), [1993] 1 S.C.R. 697, at p. 735. 2 This evidence triggers the danger of moral prejudice, which is the natural human tendency to judge people based on their character and convict accused persons because they are bad people. For instance, juries may reason that accused persons committed a violent crime because they are violent people: Handy, at paras. 39-40. This evidence also poses a second danger, reasoning prejudice, because it risks confusing the trier of fact and distracting from the facts underlying the actual charge against the accused: Handy, at para. 100.

[28] Handy adopted a test to guard against the dangers of bad act evidence. This test applies to bad act evidence led by the Crown, including both criminal acts and other conduct an ordinary person would disapprove of: Handy, at para. 34; R. v. Johnson, 2010 ONCA 646, 262 C.C.C. (3d) 404, at paras. 88, 90. The test makes bad act evidence presumptively inadmissible unless the Crown can show on a balance of probabilities that it is relevant to an issue other than the accused’s general propensity to commit bad acts and that its probative value in relation to that issue outweighs the risks of moral and reasoning prejudice: Handy, at paras. 55, 69-75, 100.

[29] Handy provides guidance on how to assess the probative value of bad act evidence when the Crown tenders it as propensity evidence. Propensity evidence is bad act evidence that the Crown tenders to show that the accused has a disposition to act in a particular way and thus acted in that way by committing the charged offence: R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), at para. 97. Propensity evidence is either general or specific: R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449, at para. 170. General propensity evidence merely shows that the accused has a general disposition for violence or other crime and is never admissible: Handy, at para. 31. Specific propensity evidence is more contextspecific and is sometimes admissible but remains dangerous because it still poses the risks of moral and reasoning prejudice: Dooley, at para. 170; Handy, at paras. 59-68. The degree of similarity between the bad acts and the facts of the charged crime determines the probative value of specific propensity evidence. A greater degree of similarity makes it unlikely that the similarities are a coincidence: Handy, at paras. 41-48, 76.

[30] The Handy test includes a special rule, which I will refer to as the identity rule. This rule guards against the special dangers of propensity evidence that the Crown seeks to use to prove the accused’s identity as the perpetrator: R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 20. Under this rule, propensity evidence is only admissible to prove identity if it has a high degree of similarity to the charged crime that negates the possibility of coincidence: Perrier, at paras. 19, 44. The rule’s high threshold protects against the risk that the similarities are coincidental: Perrier, at para. 20, citing Handy, at para. 91. To meet it, the Crown must establish on a balance of probabilities that the same person committed both the other bad acts and the charged crime: Perrier, at para. 20. The Crown can do so by either showing a “‘unique trademark or signature’” or a number of significant similarities that cumulatively preclude coincidence: Perrier, at para. 19, quoting R. v. Arp, [1998] 3 S.C.R. 339, at para. 45; see also Handy, at para. 77.

[31] Evidence obtained in police undercover operations designed to induce confessions can also risk wrongful convictions. These operations frequently involve undercover officers offering a suspect incentives to join a fictitious organization and then telling the suspect that to become a member the suspect must first confess to having committed the crime to the organization’s leader: Hart, at paras. 1-2. These operations often, but not always, take the form of a classic “Mr. Big” investigation in which undercover officers elicit a confession during an interview-like meeting between the suspect and the boss of a fictitious criminal organization, who is known as Mr. Big: Hart, at paras. 1-2. These operations pose three dangers: they risk resulting in unreliable confessions; they may prejudice accused persons in the eyes of the trier of fact by showing their willingness to join a criminal organization and engage in simulated crimes; and, they may become abusive and unduly coercive: Hart, at paras. 5-9. Like bad act evidence, the admission of confessions deriving from these types of operations can create a risk of wrongful convictions: Hart, at para. 8.

[32] The Hart test guards against the dangers posed by undercover police operations undertaken to obtain confessions. Hart applies to two types of police operations designed to elicit confessions: (1) those in which undercover officers recruit the accused into a fictitious criminal organization, and (2) other undercover operations not involving a fictitious criminal organization that still pose the three dangers Hart identified: Hart, at paras. 10, 85; R. v. Quinton, 2021 ONCA 44, 399 C.C.C. (3d) 514, at paras. 40-42; R. v. Zvolensky, 2017 ONCA 273, 135 O.R. (3d) 401, at paras. 83-85, leave to appeal refused, [2017] S.C.C.A. No. 403. If Hart applies, any confession the accused makes to undercover officers during the operation is presumptively inadmissible unless the Crown establishes on a balance of probabilities that its probative value outweighs its prejudicial effect: Hart, at para. 85. Even if the Crown makes this showing, the trial judge may still exclude the confession if the police conduct is an abuse of process, as may be the case where the police use unacceptably coercive tactics: Hart, at paras. 86, 113-118. Hart uses but does not define the term “confession,” a point to which I will return later.

[33] Handy and Hart both address some of the same concerns,...

[34] However, the two tests focus on different types of evidence, take different approaches to assessing probative value, and vary in their approach to police misconduct. Hart addresses confessions by the accused accompanied by bad act evidence as context for the accused’s confession, while Handy solely concerns bad act evidence: Hart, at paras. 2, 73, 76; Handy, at para. 34. Because Hart concerns confessions that are often highly probative of guilt if reliable, its assessment of probative value focuses on reliability factors: Hart, at paras. 99-105. In contrast, when the Crown seeks to use other bad act evidence as propensity evidence, Handy assesses probative value principally by whether the bad acts other than the crime charged are similar enough to the facts of the charged offences to negate the possibility of coincidence: Handy, at para. 76. Finally, Hart addresses the risk of police misconduct while Handy does not: Hart, at para. 86.

(2) The Trial Judge Erred by Admitting the Murder Advice

[35] The trial judge erred in law by not analyzing the probative value of the murder advice under Handy and admitting it to prove identity even though it lacked the high degree of similarity with the killing of Ms. Consuelo that Handy requires. These legal errors permit this court to intervene despite the deferential standard of review: McDonald, at para. 85....

(a) The Trial Judge Should Have Applied Handy

[36] The trial judge should have applied the Handy test and its identity rule to the murder advice because it triggered them. First, the murder advice triggered the Handy test because it was bad act evidence adduced by the Crown. Specifically, the murder advice was an act other than the charged crime of killing Ms. Consuelo that was likely criminal and would likely horrify an ordinary person: Handy, at para. 33; Johnson, at para. 90. Second, the murder advice also triggered Handy’s identity rule because the Crown sought to use it as propensity evidence to prove identity...

[37] The trial judge did not, however, apply Handy and its identity rule. He did not analyze, as the identity rule required, whether the Crown showed that the murder advice revealed a unique trademark or signature or a number of significant similarities to the killing of Ms. Consuelo that cumulatively precluded coincidence: Perrier, at paras. 19-20. I disagree with the Crown’s arguments that he need not have applied this rule.

[39] As the Crown submits, Hart applied to the murder advice because the appellant gave that advice to undercover officers during a police operation that posed the three dangers Hart identified....

....The police nonetheless sought to obtain a confession from the appellant by holding out an inducement, namely becoming business partners with two men who held themselves as having either committed murder or successfully concealed it. The operation thus triggered the three dangers of unreliable statements, prejudicial evidence, and police misconduct. Because it triggered those dangers, Hart applied: Quinton, at para. 41; R. v. Kelly, 2017 ONCA 621, 387 C.R.R. (2d) 93, at paras. 35-36, 79, leave to appeal refused, [2017] S.C.C.A. No. 474; Zvolensky, at paras. 83-85.

[40] It follows that I reject the appellant’s argument that Hart did not apply to the murder advice because he never admitted that he killed Ms. Consuelo....

....While Hart did not define the term confession, the related common law confessions rule defines that term broadly as any statement that an accused makes to a person in authority that the Crown seeks to introduce as part of its case: R. v. Pearce (M.L.), 2014 MBCA 70, 318 C.C.C. (3d) 372, at para. 48, citing Piché v. The Queen, [1971] S.C.R. 23, at pp. 36-37. I would apply this definition to Hart with slight modifications to account for its different context: under Hart, a confession is any statement that an accused makes to an officer during an undercover operation that the Crown seeks to introduce as part of its case. The appellant’s murder advice meets the definition I have set out because he gave that advice to an officer during an undercover police operation.

[42] However, the Crown wrongly assumes that because Hart applies, Handy cannot also apply. The tests are not mutually exclusive. Rather, as I have explained, they both engage a shared concern about the dangers of moral and reasoning prejudice and adopt a similar rule of presumptive inadmissibility that the Crown must rebut by showing that the evidence’s probative value exceeds its prejudicial effect. And while Hart’s discussion of probative value focuses on reliability, it nowhere forbids courts from assessing probative value pursuant to Handy principles when the statement in question is bad act evidence that the Crown adduces as propensity evidence. There is thus no reason in principle not to apply both tests where they are each triggered.

[43] The trial judge thus should have assessed the murder advice’s probative value and prejudicial effect by applying principles from both Hart and Handy. Consistent with both tests, the murder advice is presumptively inadmissible unless the Crown shows that its probative value exceeds the prejudicial effect of the risks of moral and reasoning prejudice. The trial judge should have applied both Hart reliability principles and Handy similarity principles to assess the advice’s probative effect. The trial judge could have properly analyzed the reliability of factual assertions contained in the murder advice under Hart, such as the appellant’s statement that he had previously strangled a friend. But because the Crown sought to use the murder advice as propensity evidence to prove identity, the trial judge should also have asked whether the Crown had met Handy’s identity rule governing the admissibility of such evidence. The trial judge could not admit the statement to prove identity if it lacked the high degree of similarity that rule required, even if it was sufficiently reliable under Hart.

[44].... Crown counsel at trial relied on the murder advice’s similarities with Ms. Consuelo’s killing to prove the appellant’s identity as the killer. Such use of similarities to prove identity is specific propensity evidence that triggers Handy and its identity rule: Handy, at paras. 62-63, 77, 91. Contrary to the Crown’s submission, this specific propensity evidence remains propensity evidence even if it goes beyond the appellant’s general disposition for violence or crime: Handy, at paras. 59, 68; Dooley, at para. 170.

[45] It matters not that the trial judge labeled the murder advice as going to knowledge rather than propensity because that label did not accurately characterize the true basis on which he admitted it: McDonald, at para. 103....

[46]...Statements like the murder advice trigger Handy because they constitute discreditable conduct by the accused other than the charged offence: David Tanovich, Louis Strezos, & The Honourable S. Casey Hill, McWilliams' Canadian Criminal Evidence, 5th ed. (Toronto: Thomson Reuters, 2013) (Release 2023 – No. 5), § 10:29. The fact that the appellant made the statements does not exempt them from Handy...

(b) The Murder Advice Was Inadmissible Under Handy

[47] Because the trial judge failed to apply Handy and its identity rule to the murder advice, he erred in law by admitting this evidence. The advice was inadmissible to prove identity because it did not meet the identity rule’s high bar. The trial judge also failed to assess the serious prejudicial effects of the murder advice concerning avoiding detection, which outweighed its minimal probative value as context. He should have excluded the murder advice.

[48] Under the identity rule, the murder advice was only admissible to prove identity if the Crown showed on a balance of probabilities that it disclosed (1) a unique trademark or signature, or (2) a number of significant similarities with Ms. Consuelo’s killing that cumulatively precluded coincidence: Perrier, at para. 19. The murder advice was inadmissible to prove identity because the Crown showed neither.

[49] First, the Crown failed to show that any of the murder advice revealed a unique trademark or signature. The appellant suggested that Ryan could kill Jesse by jumping on top of her and either strangling her or smothering her by putting his hands over her nose and mouth. The trial judge, who did not apply Handy, characterized this as a unique killing method. But it does not constitute a unique trademark or signature. This was incorrect under Handy. Rather, strangling someone, including with a ligature as the forensic pathologist opined might have occurred, is a common method of killing: R. v. Paul, (2002) 62 O.R. (3d) 617 (C.A.), at paras. 41-42; R. v. Wood, 1987 ABCA 230, 39 C.C.C. (3d) 212, at para. 72. The same is true of jumping on top of the victim and smothering her by putting hands over the nose and mouth....

[50] The appellant’s advice on how to evade detection likewise failed to disclose a unique trademark or signature. The appellant advised Ryan to evade detection by covering his face, wearing a hat and gloves, looking down and wiping down everything he touched. The Crown has not suggested that covering one’s face and wearing a hat and gloves is a unique criminal signature. Likewise, looking down and wiping items down are common criminal methods of avoiding detection, not a specialized method or unique signature: R. v. Cole, 2021 ONCA 759, 158 O.R. (3d) 680, at paras. 92-96, leave to appeal refused, [2021] S.C.C.A. 465.

[51] Second, the Crown also failed to show enough significant similarities between the murder advice and Ms. Consuelo’s killing to cumulatively preclude coincidence. This court has held that the presence of a few generic or commonplace similarities between a single bad act other than the charged crime and that crime does not establish enough significant similarities to preclude coincidence: R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at paras. 42-43, 103-104; McDonald, at para. 104. This was the situation in this case. While the trial judge characterized the murder advice as conspicuously similar to the killing of Ms. Consuelo, the similarities were generic and limited to the perpetrator jumping on top of the victim and using common methods of killing such as strangling or smothering. The murder advice lacked any of the potentially distinctive features of Ms. Consuelo’s killing, such as the bouncing up and down on the victim’s chest, the scattering of unopened condoms at the crime scene, or the penetration of the rectum with an object. The few generic, commonplace similarities that did exist could not negate the possibility of coincidence.

[52] The appellant’s advice on how to evade detection also lacked enough significant similarities to the way the masked man dressed and acted to preclude coincidence. The appellant suggested to Ryan that a perpetrator should wear a hat, cover his face, look down, and wear gloves. These were ways of dressing and behaving used by the masked man. However, these similarities are generic. The Crown has not suggested that covering one’s face and wearing a hat and gloves is an uncommon way of dressing, and looking down is not a specialized method. Like the portion of the murder advice concerning how to kill Jesse, the advice on evading detection is a single instance with only a few generic or commonplace similarities that does not meet Handy’s high bar: Durant, at para. 104; McDonald, at para. 104.

[53] Because the murder advice was inadmissible to prove identity, the trial judge should have excluded the portion of that advice concerning how to kill Jesse. I reach this conclusion because the only purpose for which he admitted that portion was to prove identity.

[54] The trial judge should have likewise excluded the portion of the murder advice concerning evading detection. This portion was inadmissible to prove identity. The trial judge also admitted it to provide context for the June 27 statements, but he erred in law in doing so. As I will explain, he failed to assess both how probative it was and its prejudicial effect.

[55] The trial judge first erred in law by failing to assess how probative the advice about evading detection was as context for the June 27 statements. Because probative value is a matter of degree (Magonza v. Canada (Citizenship and Immigration), 2019 FC 14, at paras. 21, 23), trial judges must first assess the degree of probative value of the evidence to properly balance that probative value and any prejudicial effect: R. v J.W., 2022 ONCA 306, 161 O.R. (3d) 609, at paras. 20-22, 36, 39, leave to appeal refused, [2022] S.C.C.A. No. 220. The trial judge did not do this. Instead, he simply labeled the advice as probative. This was conclusory and insufficient: J.W., at para. 46.

[56] Had the trial judge engaged in the proper analysis, he would have concluded that this advice had minimal probative value as context because it would not significantly help the jury to understand the June 27 statements: R. v. Z.W.C., 2021 ONCA 116, 115 O.R. (3d) 129, at para. 109....

[57] The trial judge further erred in law by failing to assess the prejudicial effect of the advice concerning evading detection. As Handy and Hart emphasize, trial judges must rigorously assess the prejudicial effect of bad act evidence, especially where such evidence is obtained in undercover police investigations that implicate the accused in criminality: Handy, at paras. 64, 137-147; Hart, at para. 106. Such a rigorous assessment is necessary to ensure that Handy’s narrow exception to the inadmissibility of bad act evidence remains narrow and that courts heed Hart’s caution against the routine admission of bad act evidence as context: Handy, at para. 41; Hart, at paras. 76-77. Failing to rigorously assess bad act evidence’s prejudicial effects can result in wrongful convictions: Handy, at para. 139; Hart, at paras. 8, 77.

[58] Unfortunately, the trial judge did not conduct the rigorous assessment that Handy and Hart require...

....His assumption that probative evidence has low prejudice is incorrect. Rather, prejudicial effect does not necessarily decline as probative value increases and highly probative evidence can also be highly prejudicial: Handy, at para. 149. Because the trial judge overlooked this principle, he did not assess two serious risks of moral prejudice that the advice about evading detection posed.

[59] First, the trial judge failed to consider that the appellant’s association with a man who was holding a gun for a relative involved in organized crime and contemplating killing his girlfriend was highly prejudicial. This evidence created a risk that the jury would convict the appellant because he associated with a bad person: R. v. Riley, 2017 ONCA 650, 137 O.R. (3d) 1, at para. 221, leave to appeal refused, [2019] S.C.C.A. 412....

[60] Second, the trial judge overlooked that the appellant’s advice to Ryan on how to evade detection for murder was itself highly prejudicial. As this court has held, discussions concerning the commission of violent acts other than the charged crime are highly prejudicial even where, unlike here, only the accused’s associates and not the accused participated in them: Riley, at para. 221.

[61] These two highly prejudicial risks outweigh the advice’s minimal probative value as context. Hearing the murder advice did not significantly help the jury assess the appellant’s apparent admission that he was the masked man. Instead, it opened a gateway to impermissible propensity reasoning and increased the risk that the jury would convict the appellant because he was a bad person who associated with bad people: Riley, at paras. 220-221; McDonald, at para. 106.

[62] To provide guidance for future cases, I note that the trial judge made similar errors when he assessed the prejudicial effect of the portion of the murder advice concerning how to kill Jesse. By only identifying the appellant’s offer to kill Jesse for Ryan as prejudicial, he overlooked the risks of moral prejudice that the appellant’s association with Ryan and willingness to advise Ryan on how to kill Jesse caused: Riley, at para. 221; Ejiofor, at para. 8. Further he did not address the prejudicial effect of allowing the jury to hear the appellant’s description of strangling his friend, a prior criminal act that created a real risk that the jury would convict the appellant because he was a violent person: Handy, at para. 39.

(3) The Trial Judge Erred by Failing to Warn the Jury

[63] The trial judge also erred in law by not warning the jury about the dangers that the murder advice and the June 27 statements posed. This failure deprived the jury of a fundamental warning they needed to properly decide the case.

[65] The trial judge was required to warn the jury about the murder advice and the June 27 statements. Because bad act evidence is so dangerous, the general rule is that trial judges who admit such evidence must instruct the jury about its limited use and dangers: Handy, at para. 70; B. (F.F.), at pp. 733-735; R. v. D. (L.E.), [1989] 2 S.C.R. 111, at p. 128; R. v. M.T., 2012 ONCA 511, 294 O.A.C. 111, at para. 82. The trial judge must tell the jury that they can only use other bad act evidence for the legitimate purpose for which it was admitted and cannot use it to infer that the accused is the type of person who likely committed the charged crime: Handy, at para. 70; R. v. Bomberry, 2010 ONCA 542, 267 O.A.C. 235, at para. 33. Juries need these warnings because they lack the benefit of judicial experience about this evidence’s dangers and might otherwise engage in the natural human tendency to judge people based on their bad character: Abdullahi, at para. 32; Handy, at paras. 39-40; Z.W.C., at para. 94. Failing to warn the jury risks causing it to unfairly and wrongfully convict the accused based on prejudice rather than proof: B. (F.F.), at p. 735; D. (L.E.), at pp. 127-128; Handy, at para. 139.

[71] Because the warning was required, the trial judge erred in law by not giving it. He did not tell the jurors that they could only use the murder advice and the June 27 incriminating statements for the purposes for which they were admitted. He did not warn them against using this evidence to convict the appellant because he was a bad person or the type of person who would kill Ms. Consuelo. Instead, his instructions concerning this other bad act evidence merely summarized the appellant’s statements and the parties’ arguments concerning it. This was not enough because the trial judge was required to instruct the jury on the law, not merely summarize the evidence and arguments: R. v. Duran, 2013 ONCA 343, 306 O.A.C. 301, at paras. 48-49; Abdullahi, at paras. 18, 91-94.

[72] The trial judge’s failure to warn the jury about the dangers of this evidence creates a real risk that the jury wrongfully convicted the appellant because he appeared to have a bad character and bad associates: Handy, at para. 139; B. (F.F.), at p. 735; D. (L.E.), at pp. 127-128. Defence counsel’s warning to the jury of these dangers cannot remedy the trial judge’s failure to give a similar warning because juries take direction on the law from the trial judge, not defense counsel: Abdullahi, at paras. 65, 94.

(4) The Trial Judge’s Errors in Assessing the June 27 Statements

[76] The appellant initially challenged the trial judge’s admission of the June 27 statements but later abandoned this argument. I nonetheless address the trial judge’s ruling on these statements to provide guidance for the new trial and correct several errors the trial judge made.

[77] First, I am troubled by the trial judge’s conclusion that the June 27 statements were reliable and probative because Ryan and Raz encouraged the appellant to be honest with and loyal to them. This conclusion was an error because it overlooks Hart’s holding that undercover police officers urging a suspect to be honest is a reliability risk factor, not a safeguard. Emphasizing the importance of honesty and loyalty is a common feature of the undercover operations which Hart considered: Hart, at paras. 30, 59, 78. At the close of such operations, undercover officers often attempt to capitalize on their emphasis on honesty and loyalty to elicit a confession. They tell the suspect that they know he committed the crime, that denying it will show that the suspect is untrustworthy and unworthy of joining their organization, and that the suspect will then lose the opportunities that membership offers: at para. 60. Hart held that this emphasis on honesty and loyalty casts doubt on the reliability of confessions by creating a risk that the accused would falsely confess to avoid being deemed a liar by the undercover officers and losing those opportunities: at paras. 139-141.

[78] The trial judge should have but did not analyze that risk here. Instead of confirming the reliability of the appellant’s statements, as the trial judge reasoned, Ryan and Raz’s preaching of honesty and loyalty created a risk that the appellant might falsely make admissions so that they did not perceive him as untrustworthy and refuse to partner with him...

[79] Second, I am equally concerned by the trial judge’s conclusion that the opportunities Raz offered to the appellant would not have incentivized him to falsely confess. The trial judge justified this conclusion by distinguishing the police investigation into the appellant from the operation in Hart, reasoning that the former involved legitimate business opportunities while the latter involved criminal opportunities. This distinction was erroneous because it overlooked that in both cases, the undercover officers offered financial opportunities and friendship, which Hart recognized could pose a powerful incentive to falsely confess: at paras. 134- 140....

[80] Third, the trial judge erred by reasoning that the appellant had no reason to falsely confess because Raz’s offer of help would only be of value if he was guilty. The trial judge overlooked that Raz did not merely offer to help, but also told the appellant that he needed to be honest without delay or lose the opportunity for business partnership....

[81] Fourth, the trial judge erred by concluding that the June 27 statements had no prejudicial value. As I have explained, they were highly prejudicial because they disclosed the appellant’s desire to partner with violent and murderous associates.

[82] To ensure that these errors are not repeated, I stress that the police, the Crown, and trial judges cannot evade the need to robustly assess Hart’s dangers simply because of tweaks to one or more features of the classic Mr. Big operation.

E. CONCLUSION

[85] The Crown has discretion whether to hold that trial. In exercising that discretion, I would expect the Crown to reassess the strength of its case. Because this court has ruled that the murder advice is inadmissible, the Crown’s case rests on limited circumstantial evidence such as the appellant’s similar clothing to the masked man and his knowledge of certain details of Ms. Consuelo’s death, as well as potentially his June 27 statement that he was in the building and apparent admission that he was the masked man if this evidence is admitted at the new trial.

R v Patel, 2024 NSCA 40

[April 3, 2024] Common Sense in the post-Kruk jurisprudence [Reasons by Derrick J.A. with Wood C.J.N.S. and Scanlan J.A. concurring]

AUTHOR’S NOTE: Much of the criminal defence legal community responded to Kruk with despair at the unfair treatment of accused persons in sexual assault cases with respect to credibility assessments. This line of thought broadly suggested that while some common sense assumptions about the complainants (ie. likelihood to consent to sex in certain circumstances) were off the table, the full barrage was available against the interest of accused persons. My personal view has been that Kruk will, on balance, be a good development at the trial level because it has released judges from artificial barriers to exercising their common sense in the assessment of credibility (except for use of stereotypes about human sexuality that have been proven false). Here, a Crown appeal is roundly rejected on what appears to have been an appellate attack on the use of common sense the trial judge wherein the complainant's evidence was questioned on the basis of a lack of detail of her interactions with the accused resulting from an unexplained "gaps" in memory.

Introduction

[1] On March 31, 2023 in an oral decision1 , Judge Alan Tufts of the Provincial Court of Nova Scotia acquitted the respondent of sexual assault. The Crown appeals the acquittal.

[2] The trial judge is alleged to have committed a constellation of errors:

• ...Explicit refusal to apply common sense and human experience to his assessment of credibility...

[3] As the reasons that follow explain, I am satisfied the trial judge did not commit any reversible errors. I would dismiss the appeal.

Facts

[4] There were two central witnesses in this case: the complainant, G.M., and the respondent. They were the only witnesses to the sexual activity. There was no dispute that penile-vaginal penetration occurred. The respondent testified it was consensual. The complainant said it was not. The only issue was whether the Crown had proven beyond a reasonable doubt the complainant had not consented.

The Evidence of G.M.

[5] The complainant, G.M., who lived alone in a small second-floor walk-up apartment, would order food from a nearby pizza shop where the respondent worked as a delivery driver. He had previously delivered food to G.M. They knew each other in that context but were not friends. On May 31, 2020 the respondent brought G.M.’s food order to her apartment. CCTV footage from the lobby of the apartment building showed him arriving. He left 13 minutes later.

[7] When the respondent arrived just outside the door he was pulling at the crotch area of his tight jeans. This led to G.M. commenting that he was never going to have children. The respondent then handed her the debit machine and, without being invited to do so, he stepped inside and put G.M.’s food order on the kitchen stove. G.M. said as the respondent passed her the debit machine he accidentally hit her breast with it, saying “oops, sorry” when that happened.

[8] As G.M. was completing the debit transaction, the respondent started to ask personal questions about whether she lived with anyone. At the same time he was touching her left arm which she had bruised in an earlier fall. G.M. asked him not to do that. She testified she did so because “…you just don’t touch somebody like that. We’re not friends”. According to G.M.’s narrative, the respondent then touched her left breast without her consent. She told him not to. He then planted an unwanted open mouth kiss on her closed mouth and kept touching her breast, contact which G.M. said was starting to hurt.

[9] G.M. testified the respondent turned her around and led her to the bedroom. As they went he was putting his hands down her pants—she was wearing a tank top, underwear and pajama bottoms. She testified she was so frightened she “just started blanking out”. She was scared the respondent might be carrying a “religious” knife (G.M. knew the respondent was originally from India).

[10] G.M. said that in the bedroom she did what she was told by the respondent, including removing her pajama bottoms and lying on her stomach on the bed. The respondent got on top of her and penetrated her vagina twice, ejaculating on her back.

[11] G.M. firmly denied she had consented to any of the sexual contact.

The Evidence of the Respondent

[18] The respondent said the sexual contact with G.M., including the penetrative sex, was consensual.

The Trial Judge’s Decision

[22] The trial judge ultimately did not find G.M. credible in relation to the critical issue he had to decide – whether the Crown had proven beyond a reasonable doubt that she had not consented to penile-vaginal penetration. He found aspects of G.M.’s testimony, taken with the respondent’s denial, raised a reasonable doubt. He recognized throughout his decision that he had to consider all the evidence before deciding whether the Crown had met its burden.

[24] The trial judge worked his way through what he could and could not use to assist in his credibility assessments. He found “one of the most important measures” of credibility is found in a witness’ inconsistencies and whether they can be reconciled. Unresolved inconsistencies may give rise to reasonable doubt. He identified dishonesty as a relevant factor in assessing credibility. He said a witness’ demeanour had to be treated with care and could not be a sole or determining factor in the credibility analysis. The judge noted a complainant’s motive to fabricate is a relevant factor.

[25] The trial judge recognized that common sense and human experience can be brought to bear in assessing credibility although he cautioned himself about the risks of falling into stereotypical reasoning based on “some perceived notion of what a person may or may not do in any situation”, particularly in the context of “private sexual behaviour”.

[26] In his review of caselaw, the trial judge placed emphasis on the words of Justice Saunders in R. v. D.D.S.:

[77] …Experience tells us that one of the best tools to determine credibility and reliability is the painstaking, careful and repeated testing of the evidence to see how it stacks up. How does the witness’s account stand in harmony with the other evidence pertaining to it, while applying the appropriate standard of proof…?3

[31] The trial judge proceeded to consider the evidence. He identified his concerns with G.M.’s credibility:

• He did not accept G.M.’s evidence that she went “blank” and was in a state of disassociation about what was happening when she said she was “guided” by the respondent to the bedroom.

• He rejected G.M.’s claim that she was scared the respondent had a knife. The trial judge found no basis for that claim. He concluded G.M. “simply made this up” as an explanation for how and why she went down the hallway with the respondent. He found this significantly undermined G.M.’s credibility.

[32] The trial judge found the respondent’s testimony there was consensual sex, combined with the problems he identified with G.M.’s evidence, raised a doubt about G.M.’s claim the sexual activity, including the penile-vaginal penetration, was without her consent.

[33] The trial judge concluded it was possible the events occurred as the respondent had described. He said the respective versions of the events inside the apartment door and in the bedroom were “equally believable”.

[35] Characterizing G.M.’s description of the sexual activity as “possible, or perhaps probable”, the trial judge observed this was insufficient to discharge the criminal burden of proof. He concluded he had a reasonable doubt which led to the respondent’s acquittal.

The Appellant’s Arguments

Added a requirement of detail to his assessment of G.M.’s credibility:

[39] The appellant submits the acquittal was based on a non-existent legal requirement that, in order to be found credible, a sexual assault complainant had to provide a detailed narrative of events. In the appellant’s submission this amounted to stereotypical reasoning. The trial judge indicated he expected more detail on what caused G.M. to go into the bedroom with the respondent and remove her pajama bottoms. The judge equated lack of detail as undercutting "any compelling or convincing aspect to her testimony".

[40] The appellant says there is nothing in the caselaw establishing there is "any required level of detail before a complainant's evidence can be concluded to be compelling".

Standard of Review

[50] Pursuant to s. 676(1) of the Criminal Code, the Crown’s right to appeal an acquittal is limited to questions of law alone. This means that Crown appeals against acquittals in proceedings by indictment11 cannot be reversed unless an error of law has been established.

Analysis

[55] The Supreme Court of Canada in its recent decision of R. v. Kruk reminds us that an accused person cannot be found guilty simply because they are disbelieved:

[62] …Some elements of the totality of the evidence may give rise to a reasonable doubt, even where much -- or all -- of the accused's evidence is disbelieved. Any aspect of the accepted evidence, or the absence of evidence, may ground a reasonable doubt. Moreover, where the trier of fact does not know whether to believe the accused's testimony, or does not know who to believe, the accused is entitled to an acquittal (J.H.S., at paras. 9-13; R. v. H. (C.W.) (1991), 68 C.C.C. (3d) 146 (B.C.C.A.); R. v. S. (W.D.), [1994] 3 S.C.R. 521, at p. 533; R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, at para. 19).

[56] The Supreme Court has emphasized credibility assessment is not a “purely intellectual” exercise. Trial judges have “the benefit of the intangible impact of conducting the trial”. Appellate review must appreciate that:

[20] Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

[57] This appreciation for the challenges that confront trial judges assessing credibility has been re-emphasized in Kruk:

[81] Assessments of credibility and reliability can be the most important judicial determinations in a criminal trial. They are certainly among the most difficult. This is especially so in sexual assault cases, which often involve acts that allegedly occurred in private and hinge on the contradictory testimony of two witnesses. The trial judge, while remaining grounded in the totality of the evidence, is obliged to evaluate the testimony of each witness and to make determinations that are entirely personal and particular to that individual. Credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are "more of an 'art than a science'" (S. (R.D.), at para. 128; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621) With respect to credibility in particular, while coherent reasons are crucial, it is often difficult for trial judges to precisely articulate the reasons why they believed or disbelieved a witness due to "the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events" (Gagnon, at para. 20; see also R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 28; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 81). The task is further complicated by the trial judge's ability to accept some, all, or none of a witness's testimony.

[58] Kruk directs appellate courts to avoid “unjustifiably invasive scrutiny” of trial judges’ reasons, acknowledging the “delicate task” involved in credibility assessments.

The Whole of the Evidence

[59] I find the trial judge did not fail to consider the whole of the evidence in his assessment of whether the Crown had met its burden of proof.

[60] The appellant says the trial judge’s assessment of reasonable doubt neglected to take account of the respondent’s lies to police. In the appellant’s submission, the trial judge is to be faulted for not returning to the respondent’s misleading statements to police when he was assessing his claims of having had a consensual sexual encounter with G.M.

[61] The trial judge concluded the respondent deliberately misled the police. He found the respondent “did not want to tell them what had happened even if it was a consensual encounter”. However he was careful to avoid relying on the respondent’s lies as a basis for finding him guilty. Noting the respondent “misled the police and refused to admit it”, he said:

[111]…this does not necessarily mean the opposite is true and more particularly that the sexual activity he was concealing was non consensual. The reality is people do lie about having sex. This is not an unknown occurrence.

[112] But I agree that both the misleading the police and his failure to acknowledge his untruthfulness undermines his credibility. This may be consistent with guilt as the Crown argues but it is not determinative of it or even probative of guilt…

[69] The trial judge was obliged to evaluate G.M.’s evidence and that of the respondent. His reasons indicate he worked his way through an assessment of G.M.’s credibility. He had earlier noted the Crown’s position:

[69] Finally the Crown argues that the complainant’s evidence is so compelling and convincing that it should be believed and accepted beyond a reasonable doubt. Because of this, it is argued the court would have reason to therefore reject entirely the accused’s testimony. The Crown, in short, relies on the so-called JJRD principle – see R. v. J.C. , 2018 NSCA 72, paras. 55-57 – where based on a considered and reasoned acceptance of the complainant’s testimony beyond a reasonable doubt can allow [sic] a trier of fact to reject the accused’s denial that the complainant had not consented and therefore find him guilty.

[70] The trial judge concluded he did not find G.M. a “compelling and convincing” witness. His assessment of her credibility attracts deference on appeal. We are not to re-do the credibility analysis and weigh differently, the factors he considered. The appellant is effectively seeking to have us do so.

[74] On an examination of the whole of the evidence the trial judge concluded he could only say non-consensual penile-vaginal penetration had been “possible, or perhaps probable” but not that he was satisfied beyond a reasonable doubt of the respondent’s guilt. This was a case where there was “a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond a reasonable doubt”. The judge was not required to accept the respondent’s evidence or his version of the interaction with G.M. in order to acquit.

Stereotypical Reasoning/Refusal to Use Common Sense

[75] I am not persuaded the trial judge refused to apply common sense and human experience in assessing credibility. He reached certain conclusions based on the evidence, and made unfavourable credibility findings in relation to both G.M. and the respondent. Appellate review must treat those credibility findings deferentially. The appellant has not shown what common sense or human experience the trial judge should have applied and how it would have led to a different result. In my view this is another submission that effectively invites us to re-weigh the trial evidence and reach a different conclusion than the trial judge.

[76] In conducting his assessment of G.M.’s credibility, the trial judge did not commit legal error by relying on stereotypical reasoning that a sexual assault complainant’s lack of detail in relation to aspects of her interaction with an accused was evidence she could not be believed. He did not make a finding that a sexual assault complainant who does not provide a detailed narrative is unworthy of belief. He did not invest G.M.’s lack of detail with a stereotypical meaning, one “rooted in discrimination and inequality of treatment”. The trial judge viewed the missing detail as a contrast to details G.M. provided about her interactions with the respondent by the kitchen and in the bedroom. It is not impermissible to take memory gaps or the absence of detail into account in a credibility assessment.

[77] The trial judge’s concern about G.M.’s narrative was combined with his analysis of G.M.’s claim she was fearful the respondent might be carrying a knife. The trial judge did not believe this evidence. His rejection of G.M.’s explanation for going with the respondent to the bedroom was a finding of fact owed deference on appeal.

[78] The trial judge appropriately cautioned himself on the risks associated with common-sense reasoning in sexual assault cases. He was careful not to engage in stereotypical reasoning. The appellant might be able to explain how the evidence could have been assessed differently but it is not the role of this Court to conduct a re-assessment. I do not find legal error in the trial judge’s assessment of the evidence, which led him to conclude the Crown had not proven lack of consent beyond a reasonable doubt.

Disposition

[79] The trial judge did not commit the errors the appellant has complained of. I would dismiss the appeal.

R v NC, 2024 ONCA 239

[April 3, 2024] Reasons for Rejecting the Testimony of an Accused Require more than Conclusory Statements [I.V.B. Nordheimer, S. Coroza, J. George JJ.A.]

AUTHOR’S NOTE: Judges have to always explain the "why" of their decisions. Where the evidence is primarily that of a complainant's account versus an Accused account, there is a need for explaining why the evidence of an accused was rejected. It is not sufficient to merely state that it was. Even where the judge suggests there exists an inconsistency, they have to explain why they find it to be so. Where the explanation is not apparent from the record, the result can be a new trial. 

[1] N.C. appeals his conviction for sexual assault. At the conclusion of the hearing, we allowed the appeal with reasons to follow. We now provide our reasons.

[2] The complainant, E.K., visited Ottawa with her friend, A.Z., in February 2017. On the evening of February 4, 2017, the pair were staying together at a hostel, in a room with five bunk beds. E.K. and A.Z. were assigned to two different bunk beds. Two other women were occupying bunk beds in the room, while the appellant was staying in the fifth bed.

[3] That evening, E.K. and A.Z. got ready in the hostel room to go dancing. They engaged in some casual conversation with the appellant. They left the hostel just after midnight for a nightclub, where the complainant consumed about seven alcoholic drinks. After leaving the nightclub at 2:00 or 2:30 a.m., the pair got food at a nearby restaurant before returning to the hostel. Once in the shared bedroom, the appellant whispered “come here” to E.K. She went towards the appellant and, once at the rails of his bunk bed, their lips touched for a “brief moment.” E.K. then went to her own bunk bed, where she went to sleep fully clothed.

[4] The appellant then left his own bed and joined E.K. in her bed. Shortly after, one of the other women staying in the bedroom, M.L., got out of her bed to go to the washroom. She observed the pair in the same bed. After this, the appellant penetrated E.K. without using a condom. During sexual intercourse, the appellant testified that he asked E.K. if her friend A.Z. wanted to join them. The appellant left the complainant’s bed and returned to his own bed before M.L. left the washroom. The appellant testified that he was trying to be discreet and wanted to get back into his own bed soon after M.L. had observed them, but that he was not embarrassed to ask the complainant for a threesome. E.K. reported the incident to the police the next day.

[5] The primary issue litigated at trial was whether the complainant consented to sexual intercourse with the appellant. The trial judge provided oral reasons for judgment. He concluded that the complainant was a clear, consistent and credible witness. However, when assessing the appellant’s evidence, he stated:

I do not accept the accused's evidence that the complainant moved over in her bed for the purpose of inviting him into it. I do not accept the accused's belief that such an act would have suggested that the complainant was consenting to him getting into bed with her. I do not accept the accused's evidence that the question, “what are you doing” was asked in a playful or flirtatious manner by the complainant. I do not accept his evidence that the complainant gave her consent to the act of sexual intercourse. The accused's testimony about getting back into his own bed, soon after [M.L.] had observed him in the complainant's bed, in order to avoid another embarrassing moment, seems inconsistent with his statement to the effect, “do you think your friend would like to join us?”

[6] The trial judge did not provide any explanation as to why he found these aspects of the appellant’s testimony to be inconsistent.

[8] Turning to the first submission, we agree with counsel for the appellant that the trial judge, in rejecting the appellant’s evidence, did not provide sufficient reasons for his credibility findings. Instead, the trial judge’s reasons are conclusory. He gave only one reason for refusing to accept the appellant’s evidence: he found the appellant’s testimony about getting back into his own bed to avoid embarrassment, soon after M.L. had observed him, to be inconsistent with having asked the complainant: “do you think your friend would like to join us?” In crossexamination, the appellant stated that he was not embarrassed to ask the complainant if A.Z. wanted to join them. However, he indicated that was different than being embarrassed about M.L. finding him and the complainant in bed when they were trying to be discreet.

[9] In the circumstances, the trial judge had to provide some explanation as to why he found the appellant’s embarrassment in one situation and not the other to be inconsistent. This is particularly so given that the trial Crown did not expressly argue in closing submissions that this was an inherent inconsistency and defence counsel never had an opportunity to respond to the trial judge’s concern that the evidence was inconsistent. If the trial judge was going to reject the appellant’s evidence because of this inconsistency alone, he was required to raise it, explain why he thought it was inconsistent, and give the appellant an opportunity to respond.

[10] We also agree with the appellant’s second submission that the trial judge erred by failing to turn his mind to the mens rea requirement of the offence....

[11] Having concluded that the actus reus of the offence had been committed, the trial judge was required to turn his mind to whether the necessary mental state – knowing of or being wilfully blind or reckless as to lack of consent – had been proven beyond a reasonable doubt. While we acknowledge that a trial judge is under no obligation, in reasons for judgment, to expound on basic criminal law principles, that does not mean that trial judges are relieved from their obligation to provide reasons that permit appellate review. We are of the view that these reasons do not meet that standard....

[12] In sum, the entirety of the trial judge’s reasons for convicting the appellant offer nothing beyond conclusory comments about his credibility. In these circumstances, the decision cannot stand.

[13] For these reasons, the appeal was allowed, the conviction set aside, and a new trial ordered.