This week’s top three summaries: R v McDowell, 2020 BCCA 52, R v Allen, 2020 ABPC 295, and R v McCormack, 2019 NLSC 218.

R v McDowell (BCCA)

[January 30, 2020] Procedure - Use of Voir Dire Evidence in Trial Proper - 2020 BCCA 52 [Reasons by Bennett J.A. with Willcock J.A., and Goepel J.A. concurring]

AUTHOR’S NOTE: Bucking the trend of verbose decisions coming from all levels of court, herein the BCCA provided a short useful summary of law related to the improper use of voir dire evidence within a trial. Essentially, absent explicit agreement once evidence is tendered within a voir dire it cannot be used in the trial proper.  Where it is, the problem cannot be cured through appellate use of the voir dire evidence under the curative proviso.


[1]           It is trite law that evidence heard on a voir dire is not evidence on the trial proper unless that evidence is either called again, or entered with the consent of counsel: R. v. Gauthier, 1975 CanLII 193 (SCC), [1977] 1 S.C.R. 441 at 452–453; R. v. Viszlai, 2012 BCCA 442 at para. 68. In this case, evidence called on the voir dire, including the in-court identification of the appellant, was not tendered on the trial proper. The judge, however, relied on that evidence when convicting the appellant. As a result, this Court ordered a new trial with reasons to follow. These are the reasons.

The Facts

[Ultimately, McDowell was charged and convicted of a number offences related to a home invasion B&E] (Paras 2 & 23)

[The homeowners were either unable to see the faces of the intruders or refused to participate in a photo lineup, but gave general descriptors] (Paras 11-13)

[16]        At trial, as Officer Horwood began to describe the stopped vehicle, a voir dire was requested by the Crown. The following evidence was tendered within that proceeding: Officer Horwood identified Mr. McDowell as the driver of the truck; Officer Horwood identified Mr. McDowell in the court room; and Officer Horwood recalled a statement made by Mr. McDowell that he had just fueled his vehicle with a jerry can, he was living with his daughter on Quarry Road in Chilliwack (which was about two to three kilometres away), and he had been by the river.

[17]        After the voir dire evidence of Officer Horwood concluded, the officer identified the co-accused in the court room and stated that he was sitting beside Mr. McDowell. 

[18]        Constable Premerl, who had stopped the vehicle, also testified. The voir dire re-commenced. Within the voir dire, Constable Premerl identified Mr. McDowell as the driver of the truck. He also identified Mr. McDowell in the court room.

[19]        At the end of Constable Premerl’s evidence, the Crown asked that the ruling on the voir dire be postponed until Constable Hastie (formerly known as Constable Pillon) testified. Constable Hastie did not give any evidence in the voir dire.

[20]        The voir dire was not conducted as one separate hearing, but rather stopped and started as each witness was called. No ruling was given on it. Everyone involved appeared to have overlooked this critical point, as the within evidence was not repeated in the trial proper. Consequently, there was scant evidence that the man in the court room was in fact Mr. McDowell—the driver of the truck.

[23]        Ultimately, the trial judge relied on the in-court voir dire evidence of the police to establish identity and convict Mr. McDowell.

Analysis and Application

[25]        A voir dire and a trial proper are two separate proceedings. Evidence called on a voir dire cannot be used on the trial proper unless it is called again or all counsel consent to it being entered: Gauthier at 452–453. This did not happen, and the trial judge erred in law by relying on the voir dire evidence.

[29]        The law, in my view, is clear that first instance in-court identification is frail. In this regard, the trial judge properly found that the in-court identification of Mr. McDowell by Mr. Bouthillier was to be accorded little weight. It was made for the first time in the court house, after Mr. Bouthillier refused to participate in viewing a line-up. His prior exposure to the intruder’s face was limited to the two seconds during the altercation at the door, and he had been sprayed in the face with a chemical. This could not on its own, as noted by the trial judge, support the conviction.

[30]        The difficulty with the other pieces of evidence relied on by the Crown to support the conviction is that their value is inherently tied to the evidence improperly tendered. For example, without the name and identification of Mr. McDowell elicited in the voir dire, there was no basis in the trial record to link the photograph of the driver of the truck to the accused sitting in the court room. The gap may have been partially remedied by an in-court identification by the trial judge, but this did not occur.

[31]        Rather, the evidence properly before the trial judge tying Mr. McDowell to the crime was limited. Without the evidence called in the voir dire, there was a reasonable possibility that the error could have affected the verdict. In my view, while the evidence relied on by the Crown is sufficient to overcome a no evidence motion, it cannot be said that the verdict would necessarily have been the same had the error not occurred. It follows that the curative proviso does not apply.

[32]        I would therefore allow the appeal and order a new trial.

R v Allen (ABPC) 

[December 12, 2019] Charter s.9 - Unlawful Arrest & the Right to Resist - 2019 ABPC 295 [D.R. Shynkar A.C.J.]

AUTHOR’S NOTE: Police application of force often results in charges of assaulting police or resisting arrest.  Occasionally, they involve allegations of excessive use of force by the officers.  Herein, Judge Shynkar provides a good overview of what should be expected of police officers, even in a dynamic and potentially dangerous environment.  Ultimately, the law expects that police will at least try to talk their way through a situation before resorting to brute force.  When they do not, they risk the arrest becoming unlawful and they risk that any physical resistance they encounter will be perfectly legal.  Here, the constable received a completely legal punch to the face.

Pertinent Facts

[1]               Mr. Allen was arrested in his home in the context of a domestic dispute; while the assault charge relating to his girlfriend was withdrawn before trial, he remains charged with resisting arrest, assaulting a peace officer, unlawful confinement, and three counts of mischief in relation to property damage. 

[2]               Mr. Allen argues that there were insufficient grounds for arrest, making the arrest unlawful and his reasonable resistance to it non-criminal; an unlawful arrest would also constitute a breach of his s. 7 Charter right to security of the person....

Information Available for Grounds for Arrest

[5]               The constables testified that they had received information from dispatch regarding a 911 call in relation to a domestic disturbance. The gist of the available information was that the parties were arguing in a bedroom, the female had called out for the police to be called, it was unknown if physical violence was involved, and the parties appeared to have quieted during the 911 call.

[7]               Mr. Courtereille directed Cst. Rittner down a hall, where a bedroom door was open. Ms. Willier, Mr. Courtereille, and Cst. Rittner agree that Ms. Willier was in the bedroom, facing the door, and Mr. Allen was in or very close to the doorway, facing into the bedroom (facing away from Cst. Rittner).

[8]               Cst. Rittner’s evidence is that Ms. Willier was crying, and said, “Please let me go,” or words to that effect, while Mr. Allen was standing in the doorway with his hands out to his sides, looking down and shaking his head. He immediately approached and seized Mr. Allen’s arm, telling him to move away from Ms. Willier; when Mr. Allen pulled away, the constable seized his arm again, telling him that he was under arrest. He says Mr. Allen again pulled away, and in the course of Cst. Rittner effecting the arrest, the two of them moved into the bedroom.

[10]           Cst. Rittner expressed his grounds for initiating the arrest as the apparent unlawful confinement of Ms. Willier. Does the available evidence, viewed objectively, demonstrate that there were reasonable grounds for Mr. Allen’s arrest?

Unlawful Confinement

[12]          ... a contextual analysis is necessary in each case to determine whether a brief interference with another’s freedom of movement rises to the level of the criminal act of unlawful confinement. Momentarily blocking another person’s exit from a room while indicating there is something to be discussed before that person leaves is insufficient, while brandishing a revolver and telling someone not to leave is certainly sufficient; the context distinguishes the two situations, not the length of the interference with personal liberty.

[14]           For the purpose of assessing the grounds available for Mr. Allen’s arrest, I ignore for the moment the evidence of Ms. Willier, who denied that Mr. Allen was preventing her from leaving the bedroom at the time of Cst. Rittner’s arrival, although he had done so briefly earlier. I will assume for this analysis that Cst. Rittner did in fact make the observations of Ms. Willier tearfully asking to leave, and Mr. Allen with his head down, shaking it from side to side, and his hands outstretched to the door frame on either side. 

[15]           At the moment that Cst. Rittner determined he had grounds for arrest, he had the following information: there was a domestic dispute, there may or may not have been physical violence, the female participant had asked for the police to be called, the parties had apparently calmed down during the 911 call, and he had very briefly observed the behaviour of the two subjects in the doorway. While I am satisfied that the constable had an honest, subjective belief that he had grounds for immediate arrest, I am not satisfied that such grounds existed when viewed objectively.

[18]           Cst. Rittner was professionally obliged to respond to the 911 call by immediately attending the scene and assuming that the call was a serious one, and he quite properly did so. Domestic violence is a serious and ongoing concern in this country; serious injury and death can result, and police officers responding to such complaints may be entering highly volatile and dangerous environments. It would therefore be natural and appropriate for Cst. Rittner to be mentally and physically “on high alert” as he entered this particular household and quickly took stock of the situation. An objective assessment, however, allows for the more detached view that would have been difficult for an officer in that position. 

[19]           An objective assessment of the situation does not demonstrate reasonable grounds for Mr. Allen’s arrest. A more prudent approach would have been to speak with both Ms. Willier and Mr. Allen to determine the situation, while waiting for the other two officers to arrive; if that approach did not bear fruit, in the sense that it became clear that Mr. Allen was in fact confining Ms. Willier, or if Mr. Allen became violent, an immediate arrest could properly be made, and by that time the other officers would have been present to immediately assist. Additionally, a slower approach may well have resulted in a less violent arrest, once reasonable grounds became apparent.

The Right to Defend Against Unlawful Arrest

[21]           Chief Judge T.J. Matchett helpfully reviews the authorities in this area in R v Wolver, 2011 ABPC 308. A person who is unlawfully arrested is entitled to use reasonable force to resist the arrest. What constitutes reasonable force in resistance depends on the circumstances of the arrest and in particular, the force used in the arrest. 

[22]           The force used in this particular arrest was significant according to the evidence of all of the witnesses. The two civilian witnesses expressed immediate dismay as the arrest unfolded, as captured on the two short videos shot by Ms. Willier. The constables described an arrest which included Mr. Allen being punched and manhandled while the officers attempted to restrain and handcuff him. Cst. Rittner testified that he used elbow strikes and knee strikes to attempt to control Mr. Allen, and that on a scale of 1 to 10 his intended force was “close to 10.” Cst. Piche testified that he attempted an elbow strike “as hard as I possibly could,” although he missed. The first video shows only a portion of the arrest, but includes Mr. Allen face down on the bed with Cst. Rittner’s knee on his head and his right wrist bent backward in what appears a painful position; Cst. Piche is grappling with his left arm while Cst. Rittner grapples with his right; he is grunting or moaning.

[23]           I consider the relevant factors set out in s. 34 of Criminal Code, and I am satisfied that the use of force employed by Mr. Allen, including struggling against the officers’ attempts to restrain him and to put his hands behind his back, as well as a single punch to the face of Cst. Rittner, was reasonable in the context of resisting an unlawful arrest involving the use of quite significant force. I do not ignore Ms. Willier’s denial of having seen Mr. Allen punch Cst. Rittner, but I accept Cst. Rittner’s evidence that he was punched as he described.

[24]           On the basis of those findings, the charges of resisting arrest and assaulting a peace officer are dismissed.

[40]           In practical terms, my finding that the arrest was without sufficient grounds, and that the resistance to it was justified, leads to the dismissal of the charges of resisting arrest and assaulting a peace officer without the need for an analysis of available Charter remedies. The only charges remaining to address are the mischiefs in relation to the sweater and the homework. Those are entirely unrelated, causally or temporally, to the Charter breach, and those convictions will stand, as previously set out.

R v McCormack (NLSC)

[December 10, 2019] – Charter s.9 - Detention of Motorist in the Back of a Police Cruiser – 2019 NLSC 218 [Sandra R. Chaytor J.]

AUTHOR’S NOTE: Roadside police stops of motorists can often result in a significant impact on the liberty of the driving public.  Police officers are expected to use their significant powers at the roadside in a measured way.  Liberty of any member of the driving public cannot be interfered with, except where that interference is necessary.  Herein, Justice Chaytor reminds police that a too-quick resort to locking someone up in the back of the police cruise can result in the exclusion of evidence and dismissal of charges. 

Pertinent Facts

[1]            This appeal explores the parameters of the common law authority of the police in executing an investigative detention and how that authority may be exceeded by securing an accused in the back of a police cruiser.

[2]            On October 26, 2014, a single vehicle accident occurred in a residential area. The police arrived shortly after the accident and witnesses identified the Respondent, Justin McCormack, as the driver.  The first officer on the scene noticed Mr. McCormack had constricted pupils. This, along with the circumstances of the accident, caused the officer to suspect that he may have been under the influence of a drug.

[3]            The officer informed Mr. McCormack that he was under investigative detention and that she wished to question him.  It was raining so she directed Mr. McCormack to sit in the rear of the police cruiser.  He was read his rights and caution.  Mr. McCormack wished to speak with counsel.  The officer contacted legal counsel for him on her cell phone and opened the door of the police cruiser to hand Mr. McCormack the phone.  At that point, for the first time, the officer noticed a smell of alcohol emanating from Mr. McCormack’s breath.  Mr. McCormack spoke to legal counsel and was then given rights and caution and the demand for the approved screening device as the officer now believed Mr. McCormack was under the influence of alcohol.  Mr. McCormack provided a sample of his breath. A fail was registered.

[4]            Ultimately Mr. McCormack was charged with operation of a motor vehicle while impaired pursuant to section 253(1)(a) and section 253(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46.

Charter s.9 Law and Analysis

[12]        The threshold question of whether a detention occurred was not a contentious issue as Mr. McCormack was placed in a locked police cruiser. Physically, there was a detention.  The next question to be addressed, was key in this case: was the detention arbitrary? (R. v. Grant, 2009 SCC 32, at paragraph 54).

[14]        It must be noted that this is not a case where the police acted under the authority in the Criminal Code to detain Mr. McCormack in the police cruiser in order to administer an approved screening device where the officer reasonably suspected that he had alcohol in his body. In such a case, as per section 254(2)(b) 2008 c. 6, section 19[1], the police could have required Mr. McCormack to provide a sample of breath for an ASD and, “if necessary, to accompany the peace officer for that purpose”.

[15]        In this case, the police detained Mr. McCormack for investigative purposes.  A police officer has authority to detain at common law for investigative purposes where, in the totality of the circumstances the officer has reasonable grounds to suspect a nexus between the individual detained and a criminal investigation (R. v. Mann, 2004 SCC 52).  The Trial Judge found that the police had grounds to detain for such purposes, and no more.

[18]        Similarly, in this case, the officer had reasonable suspicion – not reasonable and probable grounds.  The Trial Judge concluded that the officer’s actions in locking Mr. McCormack in the police cruiser went beyond what was reasonably necessary in the circumstances for an investigative detention and it became a defacto arrest.

[20]       ....The officer’s evidence was simply that she asked Mr. McCormack to sit in the car because of the weather and to question him.  She offered no rationale as to the privacy of the location for questioning or to afford Mr. McCormack a place where he could exercise his right to counsel.  Although these points were raised by the Crown in argument on this appeal, this was not part of evidence at trial and therefore properly did not form part of the factual matrix considered by the Trial Judge in reaching his decision as to the reasonableness of the detention.

[21]        It is clear that the Trial Judge applied the correct test and found that on the facts of this case it was not reasonably necessary (because of the weather and for the purpose of asking questions) for the police to have locked Mr. McCormack in the back of a police cruiser. In so concluding, the Trial Judge referenced Mann, McGuffie, and R. v. Squires, 2016 NLCA 54, all of which cautioned that an investigative detention should not be allowed to become a defacto arrest.  In applying Squires, the Trial Judge concluded there was no reason for Mr. McCormack to be placed in the police cruiser in the absence of any safety concern, risk of flight, or uncooperative behavior on Mr. McCormack’s part.

Section 24(2) Analysis

Seriousness of the Charter-infringing State Conduct

[37]        The Trial Judge found what transpired was a serious impact on Mr. McCormack’s section 9 Charter right.  At paragraph 15 of his decision, the Trial Judge references the increased restriction on Mr. McCormack’s liberty by being placed in the police cruiser.  He cites from Aucoin as to the shift in the nature and the extent of the detention that flows from such an action: “That decision carried with it increased restrictions on the appellant’s liberty interests and the added feature of an intrusion into his privacy interests. Those factors … altered the nature and extent of the appellant’s detention in a fairly dramatic way”.

Summary and Balancing

42]        In this case, the Trial Judge carried out a section 24(2) analysis.   He applied the correct test in that he analyzed the facts in the context of the Grant factors.  With respect to the first factor, he found that the conduct was serious in that there were two Charter breaches.  He further found that the conduct of the officer went too far for an investigative detention and was a defacto arrest.  With respect to the second factor, the Trial Judge referred to the increased nature of the restriction of placing Mr. McCormack in the police cruiser.  It was from this breach of section 9that the breach of section 8 flowed, as the smell of alcohol only became apparent once Mr. McCormack was unlawfully confined.  The Trial Judge also considered the third factor and although found the evidence reliable and of crucial importance to the Crown’s case, this did not outweigh the first two factors. 

[43]        The Trial Judge’s approach was in keeping with the jurisprudence from the  Supreme Court of Canada as articulated in Côté. 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 (McGuffie, at paragraph 62, referencing Côtè  paragraphs 81-89).  The importance of the first two factors in pulling for exclusion was reiterated recently by the Supreme Court of Canada in  R. v. Le, 2019 SCC 34, at paragraph 141, where it noted that it is the sum, not the average, of those two first lines of inquiry that determines the pull towards exclusion.

[44]        As previously stated, the weighing process and the balancing of the Grant factors is a matter for the Trial Judge and where the Judge has considered the proper factors, appellate courts should accord considerable deference to his or her determination.

[45]        I am unable to find an error on the part of the Trial Judge that would warrant interference by this Court.