This week’s top three summaries: R v Adler, 2020 ONCA 246, R v Faire, 2020 BCCA 110, and R v Mehari, 2020 SKCA 37.
R v Adler (ONCA)
[April 8, 2020] Charter s.24(2) - Analysis of Varius s.8,9, and 10(b). violations - 2020 ONCA 246 [Reasons by Nordheimer JJ.A. with Hoy A.C.J.O., Paciocco J.A. concurring]
AUTHOR’S NOTE: In the pre-Grant and Harrison era of Charter jurisprudence, defence lawyers used to colloquially refer to 24(3) as the circumstance where a Charter violation was found by a court, but because of the serious nature of the charges, the evidence was let in nonetheless. Here, the trial judge's approach was reminiscent of that time. Despite a litany of Charter infractions, the trial judge attempted to diminish the importance of the infractions and tried to stay certain charges instead of excluding the crucial evidence in the case. In the end, Justice Nordheimer outlines a caution to trial courts that this will not be accepted. The rule of law demands more.
Pertinent Facts
[2] The background facts are not really in dispute.
[3] On August 25, 2016, police officers on patrol at the Canadian National Exhibition (“CNE”) were informed by a woman that she had seen a man (later identified as the appellant) filming up the skirt of a young woman using a camera concealed in the head of a stuffed owl. As police approached the appellant, they saw him fumble with the stuffed owl’s head, place something in his mouth, and then swallow.
[4] Upon arresting the appellant, the police seized a number of items incident to the arrest, including the stuffed owl and three digital devices: a video camera, an iPod Touch, and a laptop. The police noticed the video camera did not have a memory card. They formed the belief that what they had earlier seen was the appellant removing the memory card and swallowing it.
[5] The police arrested the appellant at 6:40 pm. He was not advised of his right to counsel until ten minutes later. He told the arresting officer he had the name of a lawyer he wanted to call but did not have the phone number. The officer responded that he would be given an opportunity to speak duty counsel. The appellant was taken to 14 Division, where he was told by the booking officer that he would not be allowed to speak with a lawyer until after the police had searched his apartment, because of a concern that evidence at his apartment might be destroyed. At 9:59 pm, more than three hours after his arrest, the appellant was finally allowed to speak with his lawyer.
[6] Before the appellant was allowed to speak to his lawyer, police conducted a level 3 strip search to determine if he had secreted another memory card on his person. The appellant was later taken to a dry cell and placed on a bedpan vigil in an effort to recover the swallowed memory card.
[7] That same evening, while the appellant was detained, and before he was given the opportunity to call counsel, the police entered his apartment without a warrant. They used the appellant’s keys, which the police had found on the appellant, to enter his apartment. Upon entry, police observed various devices in plain view, determined that no one was present, and then left to await authorization to continue the search. They obtained a tele-warrant authorizing a night-time entry to search the apartment and seize the devices. In obtaining the tele-warrant, the police did not advise the justice of the peace that they had already entered the apartment. Later that night, the police re-entered the apartment on the tele-warrant’s authority. The police found parts of stuffed animals and several devices, including a Western Digital external hard drive.
[8] The next morning, on August 26, 2016, the police brought the appellant before a justice of the peace for a bail hearing. Crown counsel requested a threeday adjournment of the bail hearing on the grounds that “further investigation” was necessary. Crown counsel did not inform the justice of the peace that the purpose of the adjournment was to facilitate the bedpan vigil, because the police had not informed Crown counsel of this purpose.
[9] Based on the adjournment request, the justice of the peace put the bail hearing over for three days to August 29. The appellant was transported to Toronto South Detention Centre, where he was detained in a dry cell for the bedpan vigil. He eventually passed the memory card, which was recovered from his cell on August 28. The memory card was irreparably damaged. No data could be recovered from it.
[11] In the course of carrying out the searches authorized by this second warrant, the police found a video of the appellant engaged in sexual contact with an unknown woman who appeared to be unconscious. The identity of the woman in the video remains unknown. This forms the basis for the sexual assault conviction.
[12] The trial judge first ruled on the s. 10(b) and s. 8 Charter breaches. He found some, but not all, of the Charter breaches that I will outline later. A few weeks after that ruling, the trial judge issued his ruling on whether the evidence should be excluded under s. 24(2) of the Charter. The trial judge indicated that he would have excluded the evidence that he believed was most closely tied to the events at the CNE, namely the voyeurism and obstruction charges. However, given that some of this evidence was also relevant to the other charges, the trial judge chose not to exclude any of the evidence under s. 24(2). Rather, he chose to impose a stay on the voyeurism and obstruction charges, and let the charges related to child pornography and sexual assault proceed.
[14] Of the various devices seized from the appellant at the CNE and his apartment, only four were found to contain evidence that was the basis for the convictions at trial: a Western Digital external hard drive (seized from the appellant’s apartment), an iPod Touch, a laptop, and a digital video camera (all seized from the appellant at the time of his arrest). The majority of the evidence, though, came from the Western Digital external hard drive.
[15] On December 20, 2018, the trial judge sentenced the appellant globally to 40 months imprisonment...
The Breaches
[17] The trial judge found a number of s. 8 breaches in relation to the search of the appellant’s apartment: the warrantless initial entry, the invalid tele-warrant, and the search of the appellant’s electronic devices based on a tele-warrant that did not expressly authorize such a search. While the trial judge quashed the telewarrant on other grounds, he rejected the appellant’s argument that there were no reasonable and probable grounds to support the tele-warrant. The trial judge identified four possible grounds to justify the search of the appellant’s residence: (i) the appellant was likely to return home to view the voyeuristic videos; (ii) the appellant may have used his devices to transmit data to devices in his home; (iii) the appellant likely prepared for the offence at home; and (iv) it was likely that the appellant had committed other voyeurism offences in the past.
[the Court then systematically challenged the judges conclusions on i through iv] [22] In the end result, there was no information in the ITO that would have established the necessary urgency to justify a tele-warrant. Equally there was no information in the ITO that would have justified a night-time entry. In addition, as I will detail later, there was the failure to disclose the warrantless entry and there was a misleading inclusion regarding the appellant’s prior contact with the police. The tele-warrant should not have been issued.
The 24(2) Ruling
[25] On that latter point, the Supreme Court made clear in R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44, that “[e]ven where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct” (citation omitted). In this case, many of the breaches of the appellant’s Charter rights fall into the category of clear violations of well-established rules. The warrantless search of the appellant’s apartment is a prime example. So too is the delay in providing the appellant with access to counsel.
[26] In my view, the trial judge was much too quick to excuse the police conduct in this case. Put at its highest, the police conduct was negligent and undertaken in a state of oblivion regarding the appellant’s rights. At worst, the police acted in multiple flagrant violations of his rights.
[27] On this point, it should be noted that the trial judge actively prevented counsel for the appellant from eliciting evidence that might have shown that the police acted in bad faith. When the voir dire on the search warrant began, the trial judge initially indicated that he did not want to hear any viva voce evidence. Both counsel objected to the trial judge’s position. The trial judge relented and evidence was called. However, the trial judge precluded counsel for the appellant from asking the police officers questions regarding their understanding of the appellant’s rights on the basis that these were matters for argument. The trial judge erred in this ruling. The state of the police officer’s knowledge of the right breached is relevant to the seriousness of a violation. An officer, who violates a Charter right while knowing better, commits a flagrant breach. For those officers who do not know of the relevant right, the reason they do not know can properly influence where on the good faith/bad faith continuum the Charter breach might fall. Ignorance may result, for example, from disinterest or an absence of care on the part of the individual officer, or systemic training deficiencies within the police service. The result was that counsel for the appellant was prevented from developing the very evidence that went to the issue of the good faith of the police.
[28] In any event, there was sufficient evidence before the trial judge that should have caused him concern regarding the motivations of the police in this case. Most notable is the failure by the police to advise Crown counsel of their real reason for wanting an adjournment of the appellant’s bail hearing, that is, the bed pan vigil.
[29] Another example is how the police obtained the tele-warrant. In obtaining the tele-warrant, the police affiant did not disclose that the appellant had remained in custody, which made it impossible for him to return home to view the voyeuristic video that the police believed he had just created. In addition, the affiant described the layout of the appellant’s apartment but did not disclose that the source for this information was the warrantless entry undertaken by the police earlier that evening. The trial judge failed to take these matters into account in his s. 24(2) analysis.
[30] Further, the police affiant included in the ITO the fact that “[t]here are two previous incidents on file with Toronto Police Services involving this male”. The affiant did not reveal that these two incidents involved the police responding to a threatened suicide by the appellant and the second incident involved a “Daniel Adler” who was the victim of a crime.
[31] The trial judge referred to this reference in the ITO but characterized it as “inconsequential”. With respect, it was not. The reference had the clear potential for suggesting to the reader of the ITO that the appellant had a history with the police that would support the theory that he had a propensity to commit similar offences, even in the context of the disclosure that he did not have a criminal record. There was no legitimate reason for including this reference in the ITO devoid of the information that would put it into a proper context.
[33] It is well-established that two of the areas where an individual’s right to privacy is paramount is in their home and in their electronic devices (a third being a person’s bodily integrity). The right to privacy in a person’s home was clearly set out in R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at para. 140. The right to privacy in a person’s electronic devices was clearly set out in Morelli, at para. 2. These decisions predate the actions of the police in this case by 21 years and six years respectively.
[36] ... The fact that the police did not disturb anyone when they illegally entered the appellant’s apartment does not lessen the invasion of privacy. Rather, at best, it represents the absence of a further aggravating factor.
[37] Similarly, the trial judge erred in comparing the search of a person’s personal electronic devices to a search of their sock drawer. As the Supreme Court of Canada noted in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 24: “The privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets.” The trial judge did not apply this holding and consequently improperly minimized the privacy breach in this case. Further, the trial judge failed, in his analysis, to give appropriate weight to the fact that there was no information that would have supported the immediate night-time search of the appellant’s apartment.
[38] The trial judge concluded that “the first two lines of the Grant analysis do not support exclusion of the relevant video evidence”. This was an error. Both the seriousness of the breaches, and their impact on the appellant’s privacy interests, strongly suggested that the evidence ought to be excluded.
[39] Finally, while the trial judge acknowledged the need to consider the cumulative effect of the various Charter breaches, he did not do so. Rather, he artificially separated the breaches into two groups and then assigned most of them to the less serious offences. He then stayed those offences but allowed the more serious offences to proceed. The trial judge’s failure to properly consider the cumulative effect of the various Charterbreaches is, itself, an error in principle: R. v. Poirier, 2016 ONCA 582, 131 O.R. (3d) 433, at para. 91.
The 24(2) Redone
[41] In redoing the s. 24(2) analysis, it will be evident from my comments above that I view both the first and second factors as favouring exclusion. The breaches of the appellant’s privacy interest in his home, the privacy interest in his devices, and the privacy interest in his body, were all serious ones. In addition, this was not a case of a single breach of an accused’s rights. Rather, in this case, there were multiple breaches. They include:
1. The failure to give the appellant his rights to counsel in a timely way;
2. The level 3 strip search for which there were no reasonable and probable grounds;
3. The bedpan vigil for which there was no judicial authorization;
4. The unlawful detention when the appellant’s bail hearing was adjourned based on misleading information provided to the presiding justice;
5. The warrantless entry into the appellant’s apartment;
6. The unlawful search arising from the invalid tele-warrant that was obtained without full disclosure, for which there was no urgency, and which did not require night-time entry;
7. The unlawful searches of the appellant’s devices that were undertaken without proper judicial authorization.
[42] That litany of breaches is remarkable for a single arrest on a single event. In my view, it reflects a sweeping ignorance by the police of the appellant’s constitutional rights. It also demonstrates a course of conduct by the police that taints the ultimate discovery of the evidence underlying the most serious charges, that is, the evidence that was obtained from the searches of the devices, particularly the external hard drive.
[44] Turning to the individual Grant factors, and contrary to the trial judge’s conclusion, the first factor strongly weighs in favour of excluding the evidence. The Charter breaches set out above are breaches of well-settled Charter principles. They do not involve grey areas in the law nor do they involve new and novel situations. Rather, they demonstrate a reckless disregard by the police of fundamental constitutional rights of which any police officer ought to be well aware. I would add that the conclusion that the police were reckless regarding the appellant’s rights is the most favourable view one could take of the actions of the police. Viewed unfavourably, the police could be seen as intentionally disregarding the appellant’s rights, due to a particularly negative reaction to the appellant’s actions and the “type” of person he is.
[45] Again, contrary to the trial judge’s conclusion, the second Grant factor also weighs strongly in favour of exclusion. As I set out earlier, the appellant’s body, his home, and his personal electronic devices, are three areas that attract the highest expectations of privacy. In this case, all three were invaded, all in the context where the appellant was also denied his right to counsel. This court has emphasised that “[t]he right to counsel is a lifeline for detained persons”: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45. The breaches were very serious ones.
[46] In terms of the third Grant factor, I begin with two of Doherty J.A.’s observations in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643. First, he said, at para. 62: “The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion.” I have already made it clear that I view the breaches in this case to be at the high end of both the seriousness spectrum and the impact spectrum. Second, Doherty J.A. said, at para. 63: “If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility” (citations omitted).
[47] The third factor recognizes society’s interest in having an adjudication on the merits of any criminal offence but especially serious criminal offences. At least two of the offences here are serious. Nevertheless, society also has a strong interest in ensuring that the integrity of the administration of justice is maintained. That integrity is undermined by police conduct that violates citizens’ constitutional rights. If any person’s rights are violated, no one’s rights are safe. Nor can the ends be allowed to justify the means.
[49] Before concluding, I should address the remedy that the trial judge imposed — that is, a stay of the less serious charges — and whether that remedy adequately addresses the Charter violations in this case. I say that it does not. In my view, the trial judge drew an artificial distinction between the offences as they relate to the evidence that the police discovered and the manner in which they discovered it.
[51] The police conduct, in this case, was on a single straight line from the start of the investigation to the ultimate collection of the evidence that underlay all of the charges. ... One cannot separate one breach from the other nor can one erect a wall between the breaches. The improper conduct of the police tainted all of the evidence. A stay of the lesser offences, while allowing the more serious offences to proceed, does not disassociate the court from that improper conduct. Indeed, permitting the more serious offences to proceed might be viewed as rewarding that conduct.
[52] In the end result, the situation here mirrors the situation in McGuffie. I adopt Doherty J.A.’s conclusion in that case with equal application here. He said, at para. 83:
In summary, the police conduct demonstrates a blatant disregard for the appellant's constitutional rights. That conduct all but negated several of the appellant's Charter-protected interests. The court can only adequately disassociate the justice system from the police misconduct and reinforce the community's commitment to individual rights protected by the Charter by excluding the evidence. In doing so, the court acquits a person who is clearly guilty of serious criminal offences. In my view, the long-term interests of the due administration of justice require the exclusion of the evidence. This unpalatable result is a direct product of the manner in which the police chose to conduct themselves.
[53] I would allow the appeal and set aside the convictions. In light of my conclusion that the evidence ought to be excluded under s. 24(2), the appropriate relief is to order that acquittals be entered.
R v Faire (BCCA)
[April 14, 2020] Charter s.7 - When can the Court Embark on a NCRMD Inquiry? - 2020 BCCA 110 [Reasons by Mr. Justice Butler with Newbury and Abrioux JJ.A. concurring]
AUTHOR’S NOTE: Even when the mental functioning of a self-represented accused appears obviously compromised in a criminal courtroom, a trial court must strictly abide by the Criminal Code restrictions on when an inquiry in to NCRMD can begin. No shortcuts are permitted. This case shows how such a shortcut can lead to a new trial.
Overview
[4] For the reasons that follow, I am of the view that the judge erred in considering whether the appellant was NCRMD prior to rendering a verdict and without determining whether the appellant’s defence had put his capacity for criminal intent in issue. While the appellant’s defence of self-defence appeared to the trial judge to have little merit, the appellant’s ability to control his own defence was significantly impaired when the judge ordered the assessment and determined if the appellant was NCRMD prior to reaching a verdict. This was a serious breach of the appellant’s s. 7 Charter right. Having arrived at this conclusion, I need not deal with the second ground of appeal. I would allow the appeal and order a new trial.
The Trial
[5] The appellant and Helen Xu did not know each other well, but on the morning of October 10, 2015, in the communal kitchen area of a rooming house where they both resided, the appellant angrily confronted her. As she walked away from him, he took a knife out of his pocket and stabbed her repeatedly. He was charged with one count of the attempted murder of Ms. Xu
[6] The trial began on January 16, 2017, and was scheduled for 21 days. On the first day of trial, the appellant spoke to the court about the background leading to the events of October 10, 2015 and outlined the basis for his defence. The appellant did not deny stabbing Ms. Xu but said that he did so in self-defence. He referred to an international conspiracy and a long-term plot against him and others and said he had received a death threat.
[7] At the start of the trial, the court appointed an amicus curiae who was present throughout the proceedings. For a variety of reasons, the trial was delayed and a number of continuation dates were scheduled. Over the next several months the Crown presented evidence including the testimony of Ms. Xu. Part-way through the trial, the Crown agreed that there was insufficient evidence to support a charge of attempted murder and proceeded on a charge of aggravated assault. The appellant was self-represented for much of the trial.
[8] The Crown closed its case on July 20, 2017. The appellant indicated that he wanted to testify. The trial was adjourned to October 12, 2017 and the appellant gave evidence at that time. He maintained that he had been acting under an immediate threat of physical harm from Ms. Xu. He believed that she was part of a corrupt international conspiracy that was hostile to him. He believed that the conspiracy started in the 1920s or 1930s and that Ms. Xu was coordinating or working for people who were involved in a long-standing scheme to steal from him and others in China. His testimony was concluded in one day, at the end of which the appellant said he wanted to call further evidence. He indicated to the court, as he had done before, that there was documentary and other evidence available that would support his position but that he could not obtain that evidence while in custody....
[9] ... When the trial resumed, the judge again asked the appellant if he wanted to proceed based on the evidence that had already been tendered. The appellant said he was not prepared to proceed without the additional evidence he wanted to present....
[10] Following that discussion, the judge raised with counsel the issue of ordering an assessment of the appellant under s. 672.11 of the Code for the purpose of determining whether or not he should be considered NCRMD. The judge expressed “a concern that it might be premature for me to order an assessment when the position taken by the self represented accused is there is other crucial evidence out there that should be considered by the trial judge before reaching any conclusion.”...
[11] The judge then heard submissions from the amicus who submitted that a prima facie case of the appellant’s guilt was made out. Further, he argued that the appellant’s evidence was sufficient to establish reasonable grounds to believe that the appellant may be suffering from a mental disorder such that he may be exempt from criminal responsibility. He concluded by stating:
I think it’s open to the court to make the order now of its own motion. I don’t know if the Crown intends to ask the court to -- to order an assessment at this point.
[13] Immediately following these submissions, the judge ordered the assessment (the “Order”) and gave brief reasons for doing so.
[15] Pursuant to the Order, Dr. George Wiehahn was appointed to assess the appellant’s mental condition. He prepared a report dated November 2, 2017 in which he opined that there was no information to support a plea of NCRMD relating to the appellant. After preparing that report, Dr. Wiehahn was given the transcript of the appellant’s trial testimony as well as Ms. Xu’s trial testimony. Following receipt of that evidence, the doctor conducted another interview of the appellant, having already met with the appellant a number of times. He produced a second report dated November 6, 2017 and came to the opposite conclusion. In the second report, he opined that the appellant was likely suffering from an “emerging psychotic illness, namely schizophrenia which drew him out of character and interfered with his ability to reason to the extent that in his mind it made absolute sense to attack the victim under the circumstances that he did as he deemed her extremely dangerous.”
[17] The trial resumed on February 22, 2018 and Dr. Wiehahn was called as a witness. The court embarked on a consideration of whether the appellant was NCRMD. Dr. Wiehahn’s two reports were entered in evidence and the doctor explained his findings and conclusions. Defence counsel cross-examined the doctor on his assessment of the appellant’s mental condition. On April 26, 2018, the parties made their final submissions. The defence argued that the appellant should not be declared to be NCRMD. Counsel emphasized the minor difference in the evidence available to Dr. Wiehahn when he prepared the two conflicting reports. The defence position was that the expert evidence, and in particular the conflicting reports, did not support a finding of NCRMD. The Crown submitted that the NCRMD verdict was appropriate on the evidence before the court.
[18] The judge delivered his judgment on April 26, 2018. He found that the appellant was suffering from a mental disorder or disease of the mind that met the criteria in s.16 of the Code. In arriving at that conclusion the judge referred to the submissions made by the appellant at the start of trial:
[13] … Mr. Faire was permitted by the court to make long statements from the prisoner’s dock. He was not under oath at the time. This is not evidence, but in my view it was a very important portion of the trial and allowed myself as the judge not to purport to make a medical assessment but to assess the degree to which Mr. Faire had an understanding of the events around his offence, the occurrence of this stabbing in the hotel’s communal kitchen.
[14] In my view, after listening to Mr. Faire and observing him, his statements in court as a self-represented accused are an important basis to allow me to make a finding, a finding that Mr. Faire has expressed in the course of this trial even before he took the witness stand and then continuing as a witness at trial, that he has beliefs, Mr. Faire has beliefs that, in my view and in my conclusion, are not beliefs that can be based on any objective form of reality.
[15] I found that his beliefs are delusional beliefs. I do not use that word delusional beliefs in the medical technical sense; I use it more and the layperson’s definition of beliefs which stem from an internal source internal to Mr. Faire that are not verifiable by any external objectively accessible reality. I believe that Mr. Faire honestly holds these beliefs. …
[19] The judge then considered the two branches of the s. 16 test: first, whether the appellant was unable to appreciate the nature and quality of the physical acts involved in the offence; and second, whether he was incapable of knowing that his actions were wrong. The judge rejected the Crown argument that the appellant was incapable of appreciating the nature and quality of the act of stabbing Ms. Xu. He concluded that the appellant knew he was using a knife and that he was doing so to cause injury: at para. 19. However, on the second branch of the s. 16 test, he concluded that the appellant was incapable of knowing that what he did was wrong: at para. 20. In doing so, he relied on the evidence at trial as well as the appellant’s statements at the opening of the trial:
[22] … I have concluded from the evidence that I have heard from the civilian witnesses who were present in the hotel, from the evidence of Mr. Faire, and also from inferences I drew from his statements as a self represented accused before he had the benefit of counsel in the later stages and from considering the contents of Dr. Wiehahn’s reports, both the first report and the second report, that Mr. Faire is a person who was incapable of knowing that his actions in stabbing Ms. Xu were wrong.
The judge found the appellant to be NCRMD.
Limitations on Inquiry into NCRMD
[21] Section 16 of the Code codifies the NCRMD defence:
16 (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from personal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.
[22] ... The Court [in Swain] also found that the common law rule permitting the Crown to adduce evidence of insanity over the objections of the accused violated s. 7 of the Canadian Charter of Rights and Freedoms as it violated an accused person’s right to control their own defence.
[25] Extensive amendments to the Code were introduced on February 4, 1992, following the Court’s decision in Swain. The amendments relevant to this appeal include: ...
672.12 (1) The court may make an assessment order at any stage of proceedings against the accused of its own motion, on application of the accused or, subject to subsections (2) and (3), on application of the prosecutor.
…
(3) Where the prosecutor applies for an assessment in order to determine whether the accused was suffering from a mental disorder at the time of the offence so as to be exempt from criminal responsibility, the court may only order the assessment if
(a) the accused puts his or her mental capacity for criminal intent into issue; or
(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder.
...
672.21 (1) In this section, “protected statement” means a statement made by the accused during the course and for the purposes of an assessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone acting under that person's direction.
(2) No protected statement or reference to a protected statement made by an accused is admissible in evidence, without the consent of the accused, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence.
(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of
…
(e) determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), if the accused puts his or her mental capacity for criminal intent into issue, or if the prosecutor raises the issue after verdict; …
[28] In R. v. Wells, 2004 ABCA 371, at para. 10, the court acknowledged that Swain is the governing authority. Similarly, in R. v. Pietrangelo, 2008 ONCA 449, at para. 49, the court explained that the Crown is only permitted to raise NCRMD against the wishes of the accused in the two situations set out in Swain:
[49] … [T]he court held that the s. 7 right would be minimally impaired if the common law rule were altered to permit the Crown to raise NCRMD in two situations. First, when the accused puts his or her mental capacity for criminal intent into question, the Crown is entitled to lead evidence of insanity to provide the trier of fact with a complete picture. Second, once the trier of fact has made a finding of guilt, but before a conviction is entered, the Crown may lead evidence to show that the appellant should be found NCRMD. Postponing the introduction of the NCRMD issue until after there has been a finding of guilt preserves the s. 7 right of the accused to make fundamental decisions about the conduct of his or her defence against a criminal charge. However, once there has been a finding of guilt, the Supreme Court held that it is a reasonable limitation on the rights of the accused to permit the Crown to introduce the issue of NCRMD to satisfy the dual objectives of preventing the justice system from labelling the insane as criminals, and protecting the public from individuals who pose a risk to society and who require treatment.[Emphasis added.]
[29] It is clear from these decisions that the 1992 amendments to the Code have not expanded the circumstances under which the Crown can lead evidence of the accused’s mental capacity for criminal intent over the objections of the accused. The Crown can only lead such evidence after the accused has been found guilty of the offence or where the accused has put his or her capacity for criminal intent into question.
[30] The decision in Swain thus contemplates three ways in which the NCRMD defence can be raised at trial:
a) The accused can raise the defence of NCRMD either during the trial or post-verdict. If the accused chooses the former approach, he or she can do so by proactively asserting an NCRMD defence during the course of the trial;
b) The Crown can raise the defence of NCRMD post-verdict; and
c) The Crown can raise the defence of NCRMD during the course of the trial if the accused has put his or her mental capacity in issue by virtue of the way in which the defence is conducted.
Application to the Case Here
[32] It is clear that the Crown applied for an assessment to consider the appellant’s mental capacity. When the judge expressed concern as to whether it was appropriate to have the appellant’s mental condition assessed at that stage of the trial, he heard submissions from amicus and the Crown. Both argued that the appellant’s evidence had put his mental capacity for criminal intent into issue and Crown counsel stated that, “pursuant to 672.12 (3)(b), the Crown is respectfully putting the application forward”. The judge properly treated the application as having been brought by the Crown.
[33] As the appellant argues, it is important to highlight the circumstances before the court when the application was made. First, the appellant’s fitness to stand trial had not been questioned. Accordingly, no assessment could have been ordered for that purpose and the appellant was competent to conduct his own defence. Second, the defence case had not been closed when the application was made. The appellant stressed, and the judge acknowledged, that the appellant wanted to obtain and present further evidence to the court. The appellant was in charge of his own defence and had not closed his case. The judge could not, at that stage of the trial, embark on a consideration of whether the appellant was NCRMD. Indeed, that is not what the Crown was seeking.
[34]... Instead of considering whether to order an assessment on one of those two grounds, the judge balanced “the interests of fairness of trial, in particular the component of avoiding unreasonable delay” and concluded that “a prima facie case has been established for the offence of aggravated assault”. Having arrived at that conclusion, he felt that he was in a position “to consider the Crown’s application under s. 672.12(3)(b)”.
[35] The appellant argues, and I agree, that there is no support in the authorities for the proposition that the Crown may apply for an order for an assessment when only a prima facie case of guilt has been established. Neither Swain nor the Code provisions suggest that the establishment of a prima facie case is a prerequisite to making an assessment order. By approaching the question of whether to order an assessment in this way, the judge conflated ordering an assessment with entering into a determination of whether the appellant was NCRMD.
[36] While I am of the view that the judge erred by applying the wrong test to decide whether to grant the order for an assessment, I am also of the view that his error in doing so led to additional errors in considering whether the appellant was NCRMD. The way in which the trial proceeded had a serious impact on the appellant’s right to control his own defence.
[54] I am of the view that the exception outlined by the Court in Swain is directed at the conduct of the defence although that may include the substance of the evidence called by the defence. As the Court in Swain explained, at 986–987, the concern behind the rule is that the accused should not be placed in a position where he or she must advance inconsistent defences, or otherwise loses control over his or her defence. For convenience, I set out again the passage, at 987–988, in Swain that, in my view, establishes the parameters of the exception to the rule. As the Court emphasizes, the Crown can present evidence only where “the very issue has been raised by the accused’s conduct of his or her defence”:
Second, the Crown may raise evidence of insanity if the accused’s own defence has (in the view of the trial judge) put the accused’s capacity for criminal intent in issue. In these circumstances the Crown’s ability to raise evidence of insanity is not inconsistent with the accused’s right to control the conduct of his or her defence because the very issue has been raised by the accused’s conduct of his or her defence. Furthermore, as was stated above, the Crown’s ability to raise evidence of insanity only after an accused has put his or her mental capacity for criminal intent in issue does not raise the problem of the Crown’s being able to place an accused in a position where inconsistent defences must be advanced.
[55] The Crown is permitted to “raise evidence” of the accused’s mental capacity in these circumstances because if it could not, there is a risk that the trier of fact could conclude that the accused lacked the mental capacity to form criminal intent without having received adequate evidence on that issue. As noted in Swain, at 975–976, the concern is to provide the “full story” to the trier of fact:
… The Crown’s ability to raise evidence of insanity in these circumstances is necessary because, otherwise, the jury could well be left with an incomplete picture of the accused’s mental capacity. If an accused were able to raise some evidence of mental incapacity (short of an insanity defence) and, at the same time, able to preclude the Crown from raising any evidence of insanity that it may have in its possession, the possibility would arise that the accused could be acquitted by a jury which was deprived of the “full story” surrounding the accused’s mental incapacity. Such a result is clearly undesirable. Furthermore, the Crown’s ability to raise evidence of insanity only after an accused has put his or her mental capacity for criminal intent in issue does not raise the problem, discussed above, of the Crown’s being able to place an accused in a position where inconsistent defences must be advanced.
Thus, although it is a principle of fundamental justice that an accused has the right to control his or her own defence, this is not an “absolute” right. If an accused chooses to conduct his or her defence in such a way that the accused’s mental capacity for criminal intent is somehow put into question, then the Crown will be entitled to “complete the picture” by raising its own evidence of insanity and the trial judge will be entitled to charge the jury on s. 16.[Emphasis added.] [Emphasis added.]
[58] In this case, the judge did not consider whether the accused had conducted his defence in a way that put his mental capacity into issue in the manner contemplated in Swain. I am of the view that the judge erred by failing to consider that question.
[62] As noted in Swain, the principle in question is one of fundamental justice; pursuant to s. 7 of the Charter, an accused has the right to control his or her own defence. Here, given the way the trial proceeded, the appellant lost control of his defence because the court proceeded to consider whether he was NCRMD prior to rendering a verdict and prior to considering whether the evidence of the appellant’s mental condition (obtained through the assessment by Dr. Wiehahn) was necessary to provide the “complete picture” or the “full story” of the accused’s mental capacity.
[72] I would allow the appeal, set aside the NCRMD verdict and order a new trial.
R v Mehari (SKCA)
[July 10/19] – Charter s.8 - The Plain View Doctrine – 2020 SKCA 37 [Majority Reasons by Kalmakoff J.A. with Whitmore J.A. concurring and Leurer J.A. Dissenting]
AUTHOR’S NOTE: Unequal scrutiny of the evidence by a trial judge is a rarely successful ground appeal. Herein, the application was succussful even though the verdict was found to be one that could have been supported on the evidence. Unequal scrutiny of evidence causes a fundamental unfairness to the accused and tends to reverse the onus of proof in a criminal trial. Significant inconsistencies in the evidence of a complainant must be resolved - especially where similar inconsistencies are relied on to disbelieve the accused.
Pertinent Facts
[1] Awet Mehari was convicted of sexual assault, following a trial by a judge sitting without a jury: R v Mehari (30 January 2019) Regina, CRM 144/2018 (Sask QB). Mr. Mehari appeals his conviction. He argues that the trial judge made a number of errors related to admissibility and assessment of the evidence, failed to consider relevant defences, and rendered a verdict that was unreasonable.
[4] On the evening of September 29, 2017, the artist that Mr. Mehari promoted was performing at a nightclub in Regina called Noir. Mr. Mehari had invited a number of friends to attend his house to socialize and have drinks before going to Noir to see the performance.
[6] A.K. and Mr. Mehari had met once before, about three weeks earlier, at an after-party held at Mr. Mehari’s home following a performance by the same artist at a different nightclub in Regina. The nature of their interaction on that occasion was brief, but it ended with A.K. giving Mr. Mehari her contact information.
[9] A.K., K.S. and Mr. Mehari all remained at Noir until the performance was over. Their accounts of how much interaction occurred between Mr. Mehari and A.K. while at Noir differed but, at the end of the concert, they all returned to Mr. Mehari’s house for an after-party, leaving the club some time between 2:30 and 3:00 a.m. Other people attended Mr. Mehari’s house as well. The accounts in the evidence of the precise numbers varied; K.S. recalled there being perhaps 15 to 20 people present, while A.K. thought the number was more like 30 or 40. Mr. Mehari testified that there were at least 30.
[10] At some point after having arrived back at Mr. Mehari’s house, A.K. ordered a pizza. Some time after making the call to the restaurant to place the order, A.K. went up to Mr. Mehari’s bedroom, with his agreement, to wait for the pizza to arrive. A.K. testified that, after entering Mr. Mehari’s bedroom, she recalled nothing until she awoke to find Mr. Mehari having vaginal intercourse with her. She said she did not consent; she was asleep when the sexual contact began. Once she realized what was going on, A.K. got up, got Mr. Mehari off of her, and noticed significant pain in her vagina.
[11] Mr. Mehari admitted to having sexual intercourse with A.K., but said the entire encounter was consensual. He said that A.K. was awake throughout the entire incident and that she actively and willingly participated at all times. The sexual intercourse came to an end, according to Mr. Mehari, when A.K. began complaining of pain in her vagina, at which point he stopped and tried to comfort her.
[12] The trial judge rejected Mr. Mehari’s account, accepted A.K.’s, and concluded that the Crown had proven Mr. Mehari’s guilt beyond a reasonable doubt.
Judge's Analysis
[18] This was a case in which the decision hinged almost entirely on credibility. The only two people in the room when the critical events took place were A.K. and Mr. Mehari. Their respective accounts were dramatically different. The trial judge accepted A.K.’s version of events and rejected Mr. Mehari’s.
[22] She then turned to Mr. Mehari’s testimony:
Mr. Mehari was a poor witness. He volunteered no information while testifying. He answered questions put to him, but in a manner that sounded rehearsed and not as though he was testifying from a memory of the event. For instance, during cross-examination he described leaning in for a kiss and so on thereafter in exactly the same words he had used in examination-in-chief. He never provided the extraneous detail people often use when relating an event. The following interaction between Mr. Mehari and his own counsel provides an example of his careful manner of testifying...
The Governing Principles
[28] Findings of credibility are the realm of the trier of fact. It is a trial judge’s role, when hearing a case without a jury, to consider the evidence and make findings of fact. This necessarily involves assessments of credibility. Assessing credibility is not a science; it is often difficult for a trial judge to articulate with precision all of the “complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events”: R v Gagnon, 2006 SCC 17 at para 20, [2006] 1 SCR 621 [Gagnon]; see also R v W.H., 2013 SCC 22 at para 39, [2013] 2 SCR 180. For this reason, great deference must be shown to credibility assessments. Generally speaking, an appellate court must defer to the conclusions of the trial judge in that respect, unless a palpable and overriding error can be shown: Gagnon at para 10; R v Choli, 2019 SKCA 87 at para 52 [Choli]; and R v R.D.A., 2015 SKCA 100 at para 6, 465 Sask R 313.
[29] If, however, in making credibility findings, the trial judge applies a stricter level of scrutiny to defence evidence than to the evidence of the Crown, that is an error of law. Where a trial judge has applied different standards to the assessment of the evidence, the accused has not received a fair trial and there has been a miscarriage of justice, even if the evidence is capable of supporting a conviction: R v Gravesande, 2015 ONCA 774 at paras 18 and 43, 330 CCC (3d) 497 [Gravesande]; and R v Quartey, 2018 ABCA 12 at para 42, 430 DLR (4th) 381 [Quartey] (aff’d 2018 SCC 59, [2018] 3 SCR 687).
[30] Being a question of law, the standard of review on this issue is one of correctness: Quartey at para 15; R v S.M.C., 2020 ABCA 19 at para 20; R v C.A.M., 2017 MBCA 70 at para 33, 354 CCC (3d) 100.
[31] The “uneven scrutiny” claim is not easily established. The mere fact that a trial judge has believed the evidence of the complainant and disbelieved that of the accused, without more, does not establish that uneven scrutiny has been applied: R v K.B., 2019 ONCA 361 at para 8. In R v Radcliffe, 2017 ONCA 176, 347 CCC (3d) 3[Radcliffe], Watt J.A. described the basic principles that apply to appellate assessment of a claim of uneven scrutiny:
[23] First, as the appellant recognizes, this is a difficult argument to make successfully. The reasons are twofold. Credibility findings are the province of the trial judge. They attract significant appellate deference. And appellate courts invariably view this argument with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge’s credibility determinations and to re-try the case on an arid, printed record: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59; R. v. George, 2016 ONCA 464, 349 O.A.C. 347, at para. 35.
[24] Second, to succeed on an uneven scrutiny argument, an appellant must do more than show that a different trial judge assigned the same task on the same evidence could have assessed credibility differently. Nor is it enough to show that the trial judge failed to say something she or he could have said in assessing credibility or gauging the reliability of evidence: Howe, at para. 59.
[25] Third, to succeed on the argument advanced here, the appellant must point to something, whether in the reasons of the trial judge or elsewhere in the trial record, that makes it clear that the trial judge actually applied different standards of scrutiny in assessing the evidence of the appellant and complainant: Howe, at para. 59; George, at para. 36.
[26] Fourth, in the absence of palpable and overriding error, there being no claim of unreasonable verdict, we are disentitled to reassess and reweigh evidence: George, at para. 35; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.
[32] In R v Wanihadie, 2019 ABCA 402 at para 36, 99 Alta LR (6th) 56, the Alberta Court of Appeal framed the test in a similar way, noting that, in order to succeed on the uneven scrutiny ground, an appellant is required to identify something sufficiently significant in the reasons or record to establish that the trial judge employed a faulty methodology in deciding credibility. Of particular relevance to the live issues in this case, the Court went on to say:
[42] Accordingly, appellate courts should be as clear as possible about what “uneven scrutiny” does – and does not – entail. For example, a new trial has been ordered on the basis of uneven scrutiny where the trial judge rejected the accused’s evidence for a reason that applied equally to the complainant and where the trial judge gave intense scrutiny to minor inconsistencies in the accused’s evidence while significant inconsistencies in the complainant’s evidence were not critically assessed: R v ES (2002), 2002 CanLII 49353 (ON CA), 158 OAC 241 at paras 8-11. Where this allegation has been successfully advanced, appellate courts have also often found that the trial judge gave undue weight to demeanour.
[43] Ultimately though, “[t]he fundamental rule, for purposes of appellate review, is that, if a trial judge’s credibility assessment can be reasonably supported by the record, it cannot be interfered with on appeal”: CAMat para 37, quoted in Quarteyat para 42. Because questions of credibility are owed great deference on appeal, the concept of “uneven scrutiny” must never be allowed to devolve into mere disagreements about credibility.
[34] Accepting the evidence of the complainant, even in the face of inconsistencies, and rejecting the evidence of the accused does not generally provide a basis for appellate intervention on the ground of uneven scrutiny. However, the use which a trial judge makes of minor or collateral inconsistencies or contradictions may be significant. Uneven scrutiny may be revealed where a trial judge fails to conduct a critical assessment of inconsistencies which could undermine the Crown evidence, or where inconsistencies that are used to undermine the credibility of defence evidence are ignored or diminished in relation to Crown evidence: R v Willis, 2019 NSCA 64 at paras 43–44, 379 CCC (3d) 30; Gravesande at para 42. The absence of reasons as to why evidence on a critical fact in dispute is accepted, despite obvious frailties, can be a sign of uncritical analysis by a trial judge that justifies appellate interference: R v Jovel, 2019 MBCA 116 at para 43, citing R v Burke, 1996 CanLII 229 (SCC), [1996] 1 SCR 474 at para 53 [Burke].
The Principles Applied
[35] In my view, the trial judge’s decision, when read as a whole, demonstrates a degree of scrutiny of A.K.’s evidence that was tolerant and relaxed when compared to the level of scrutiny applied to, and reasons given for, rejecting Mr. Mehari’s testimony. The trial judge found that the admitted gaps in A.K.’s memory and lack of recall of certain details enhanced her credibility, while finding that Mr. Mehari’s failure to provide extraneous detail when answering questions detracted from his. Furthermore, the trial judge accepted A.K.’s evidence on certain material points in the face of clear contradictory evidence that she did not reject, reconcile, or otherwise explain.
[36] One illustration of this error is found in relation to Mr. Mehari’s testimony that he had worn a condom during the sexual encounter with A.K. Mr. Mehari did not say, during examination-in-chief, that he had worn a condom; this evidence came out only during cross-examination. The trial judge seized on that as an example of Mr. Mehari simply answering questions with a “minimum of detail” and commented that, in earlier recitations of the event, Mr. Mehari had said nothing about wearing a condom. The trial judge viewed this as an indication that Mr. Mehari’s testimony was rehearsed because, had he testified from recollection, “he would have remembered this detail and if he honestly forgot this detail when presented with it, he would have acknowledged how and why he forgot it”.
[37] With respect, in assessing the evidence in this way, the trial judge appears to have overlooked the fact that, during direct examination, Mr. Mehari was never asked about whether he had worn a condom. The issue of a condom was raised for the first time during crossexamination. Furthermore, there was no suggestion in any of the questioning that Mr. Mehari had forgotten about this detail, or that he purported to have forgotten about it. He simply had not been asked.
[38] A second illustration of uneven scrutiny is found in relation to the trial judge’s assessment of the description of what happened shortly before and after A.K. left Mr. Mehari’s bedroom.
[40] A.K. also testified that, shortly after this occurred, she left Mr. Mehari’s bedroom and went outside the house. She said Mr. Mehari followed her outside and made a number of demeaning comments to her. The trial judge recounted the versions of this event, as provided by the three relevant witnesses:
[A.K.] remembers Mr. Mehari saying to her, “You’re dumb. You were horny and you wanted it. I can’t have this on me. I can’t have this on my name”. She said Mr. Mehari went back inside the house. [K.S.] came out and tried to calm her down. He asked her if
she wanted a ride home. She told him she had a ride, although it was not true. [K.S.] said he was going back inside.
…
Mr. Mehari said that [A.K.] stormed out of the room and was hysterical. [K.S.] followed her. Mr. Mehari said he did not follow them or go outside. He denied telling [A.K.] she was horny, dumb and wanted it and that he cannot have it on him. …
…
[K.S.] said that [A.K.] left the room. He followed her outside and asked her if she wanted a ride home. He does not recall seeing Mr. Mehari outside with her. She said she had a ride on the way. [K.S.] said he was outside 15 minutes. [A.K.] was still crying and in her car when he went back into the house. He texted later about whether she had made it to his house.
[41] The trial judge accepted A.K.’s version of these events and rejected Mr. Mehari’s account, despite the fact that K.S.’s evidence was largely consistent with Mr. Mehari’s testimony and largely inconsistent with A.K.’s. In her reasons, the trial judge did not address that inconsistency. In considering the impact of this, it is important to bear in mind that the trial judge found K.S. to be a “careful witness” and appeared to generally accept his evidence as truthful. The trial judge also addressed and resolved the other areas of conflict between A.K.’s evidence and the testimony given by K.S., namely the differences in their accounts of how much contact they had in September of 2017, the differences in their accounts of A.K.’s interaction with Mr. Mehari at Noir, and the differences in what they had to say about when K.S. gave A.K. his jacket.
[42] But the trial judge did not resolve – or even mention – the clear inconsistency between A.K.’s account of what occurred after the incident in the bedroom and K.S.’s description of those same events. While it might fairly be observed that the differences in the accounts of Mr. Mehari ejecting people from his house after the incident in the bedroom are discrepancies on a collateral point, the same cannot be said regarding the evidence about what happened and what was said outside his house. The trial judge accepted A.K.’s testimony about the crude comments Mr. Mehari made to her and found those comments to corroborate her version of what occurred in the bedroom. In short, this was evidence on a crucial point bearing on credibility. K.S.’s testimony, which the trial judge accepted as generally truthful, contradicted A.K. on that point. To the extent that K.S.’s testimony could not be reconciled with A.K.’s, it constituted a frailty capable of undermining her evidence on that point, and the trial judge failed to conduct any critical analysis of that contradiction.
[44] The trial judge also found Mr. Mehari to be a poor witness, in part, because she observed that he “volunteered no information while testifying”, provided testimony that sounded “rehearsed” when describing how the incident in his bedroom unfolded, and failed to provide “the extraneous detail people often use when relating an event”. In relation to the specific portion of the testimony to which the trial judge referred as an example of how “Mr. Mehari does not explain anything” and simply answers the questions asked “with a minimum of detail”, it is difficult to understand what sort of explanation or extra detail Mr. Mehari could have been expected to provide in response to the questions that were put to him. One may reasonably conclude from the trial judge’s reasons that she drew a negative inference about Mr. Mehari’s testimony because he simply answered the questions he was asked. With respect, in my view, this is a further indication that the trial judge used a faulty methodology in assessing credibility and, when measured against the way in which the trial judge found A.K.’s acknowledgment of the “many gaps” in her recollection to bolster her credibility, it is another factor that suggests uneven scrutiny was applied.
[45] In the end, I am satisfied that Mr. Mehari’s claim of uneven scrutiny must succeed. This is not to say that I think the trial judge’s conclusion on credibility was necessarily wrong. In fact, the jurisprudence is clear that an appellate court is not entitled to reassess credibility findings absent palpable and overriding error, and uneven scrutiny of the evidence is not the same thing as palpable and overriding error. However, if the trial judge in this case had applied as exacting a standard of scrutiny to the evidence of A.K. as she applied to Mr. Mehari’s evidence, she may well have been left with a reasonable doubt about his guilt. As a result, I am persuaded that this ground of appeal must succeed, with the result that a new trial must be ordered.
[52] Mr. Mehari’s appeal is allowed. The conviction is set aside, and a new trial is ordered.
