This week’s top three summaries: R v MPH, 2022 BCCA 216: uneven #scrutiny alive, R v RM, 2022 ONSC 3747: #similar fact across counts, and R v Guerra, 2022 ONSC 3445: #jury summaries & aids.
This week's top cases deal with issues that arise in cases with offences against children. For great general reference on the law affecting these types of cases, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
R v MPH, 2022 BCCA 216
[June 21, 2022] Uneven Scrutiny of Complainant Evidence [Reasons by Marchand J.A. with Butler and DeWitt-Van Oosten JJ.A. concurring]
AUTHOR’S NOTE: With the decision of R v GF, 2021 SCC 20 recently casting doubt about the continuing existence of uneven scrutiny as a stand-alone ground of appeal, this BCCA decision breaths fresh life into appellate overview of sexual offences. This is particularly important in cases involving historical allegations against children where fair assessment of credibility and reliability is the only defence against wrongful convictions. Usually there is no direct or physical evidence other than the word of the complainant. Consequently, it is important that trial judges do not give these particularly sympathetic criminal complainants a free ride though the assessment of reliability and credibility. Moreover, it is equally important that this type of evidence be subjected to appellate oversight. Uneven scrutiny is often the only legal means to demonstrate an unbalanced approach to the evidence. Here, the BCCA demonstrates that despite GF, this ground of appeal is alive and well in BC. The uneven scrutiny was demonstrated by the failure of the trial judge to consider that while the Crown witnesses' evidence was consistent, so were very large portions of the evidence of the accused. This rendered the consistency between the Crown witnesses on these points neutral.
Introduction
[1] On December 10, 2020, the appellant, M.P.H. (“Mr. H”), was convicted of sexual interference, sexual assault and unlawful confinement in relation to events that transpired in 2011 in Prince George. He was acquitted of several other counts that are not material to this appeal. By application of the Kienapple principle, the sexual assault conviction was conditionally stayed. The trial judge’s oral reasons for judgment have not been published.
[2] The complainant was the son of Mr. H’s partner and was seven years old at the time of the events at issue. Although the complainant, his father (K.H.), his mother (T.W.) and his younger sister (H.H.) testified for the Crown, this was largely an “oath versus oath” case. There were no witnesses to the alleged sexual activity and there was no forensic evidence. Mr. H’s conviction turned on the trial judge’s assessments of credibility and reliability.
[3] Mr. H appeals his convictions on the basis that the trial judge applied uneven scrutiny and committed related errors in her assessments of credibility and reliability of the Crown and defence evidence.
Background
[8] In 2011, the seven-year-old complainant and his younger sister lived with their father in a small town in rural British Columbia, but spent the summer with their mother in Prince George. Mr. H was in a romantic relationship and lived with the children’s mother. He watched the children at least three days per week while their mother was at work or school.
[9] On the morning of the events at issue, Mr. H was looking after the children. Contrary to the rules of the house, the complainant and his sister left the house to play outside before Mr. H was awake. When Mr. H woke up and found the house empty, he opened the door and yelled for the children. They immediately surfaced and returned to the house. Mr. H placed the complainant in the basement and his sister in a washroom or storage area. There was a dispute at trial as to whether the doors to the basement and washroom/storage area were, or could be, locked.
[10] The complainant testified that Mr. H returned to the basement, pushed him down the stairs, and tied his hands and feet with rope. According to the complainant, Mr. H reached into the complainant’s pants and touched his penis for a few minutes. He then opened the complainant’s mouth with his hands and placed his penis in the complainant’s mouth. When the complainant tried to push Mr. H away with his shoulder, Mr. H struck him in the face. The complainant believed that he then blacked out.
[11] Mr. H denied that he tied up and sexually assaulted the complainant. He testified that for disciplinary reasons he gave the children a timeout. He acknowledged placing the complainant in the basement and his sister in the washroom, but denied locking the doors. He testified that the children were generally good and this was the only time he had given them timeouts in the basement and the washroom. He explained that on the morning in question he did not give them timeouts in another location because he did not want them to be in their rooms playing when they were supposed to be thinking about what they had done.
[13] The children’s mother testified that when she got home that day, Mr. H told her there had been an incident and he had disciplined the children by putting them in the basement. The complainant’s mother told Mr. H that this was not appropriate and that he should have put the children in their rooms. Mr. H generally acknowledged this conversation (although he testified that he told the complainant’s mother he put the complainant in the basement and the complainant’s sister in the washroom). Mr. H testified thReasons of the Trial Judgeat he agreed it would not happen again.
[14] According to the complainant’s father, when the children returned to live with him at the end of the summer, the complainant told him that Mr. H had locked the complainant in the basement....
[15] The complainant first disclosed to his father that Mr. H had tied him up in the basement in the fall of 2017. He did not disclose the sexual assault to his father until December 2017. Soon after the complainant’s disclosure of sexual abuse, the complainant and his father reported the events to the RCMP. The complainant had not previously disclosed the sexual abuse to his mother.
Reasons of the Trial Judge
[17] The judge found Mr. H was not a credible or reliable witness. In her view, his evidence with respect to the “critical events, shutting the children in the washroom/storage room and on the basement stairs for a timeout” was internally inconsistent and defied common sense: at para. 62. She reasoned:
[64] Placing them as he did on the morning in issue is not consistent with [Mr. H’s] evidence. Being punished by being shut into the locations they were is out of proportion to the behaviour to be punished and to their ages. It is also inconsistent with these children as not needing much discipline and with his choices for other timeouts.[65] In my view, placing the children as they were is also inconsistent with common experience. That they were separated and shut in a washroom/storage area and the stairway to the basement is not a normal timeout....[67] Other evidence also suggests that this was not a normal timeout. The events of that morning were significant enough, according to Mr. [H], that their mother was told about it later that day.
[68] Moreover, the events were sufficiently significant to [the complainant] that [the complainant] told his father after he returned [home] that he had been locked in the basement....[71] In reaching my conclusions regarding credibility on these critical points, I am relying not only on common sense, but on Mr. [H]’s own evidence about these children and his experience with them, their need for discipline, where they were that morning, that they appeared as soon as called, and his other timeouts with them.
[19] The judge found the complainant credible and reliable based on: the clarity and conciseness of his testimony; his explanation of inconsistencies in his testimony; the fact that he was “unshaken” by a vigorous cross-examination; and the consistency of his testimony with other evidence: at paras. 74–76....
[22] After noting differences in the testimony of various witnesses regarding whether there were locks on the doors, the judge considered the significant feature to be that each of the children believed they were locked in: at paras. 80–84. She concluded that “Mr. [H] said or did something that led each child to believe that [they were] confined.” She accepted that both children believed that they were locked in: at para. 84.
[27] ...It made sense to the judge that the complainant would not be thinking of events from years earlier when disclosing the choking incident that had just happened: at para. 92.
[29] The judge found that minor inconsistencies between the Crown witnesses did not undermine the substance of their evidence or their credibility: at para. 97.
[33] Trial reasons are the means by which judges are held accountable, ensure transparency in the adjudicative process and satisfy the public and the parties that justice has been done. Reasons are intended to explain what the judge decided and why. On appeal, the issue is whether the reasons disclose a reversible error: R. v. G.F., 2021 SCC 20 at paras. 68–69.
[39] All of this said, appellate review of trial reasons must be based on the reasons actually given by the trial judge and not those that might have been given. In Pastro, Justice Fitch explained:
[54] ... [A]ppellate review must be based on the reasoning path reflected in the reasons for judgment. The need for a contextualized assessment of reasons on appellate review does not authorize an appellate court to sustain a result because reasons in support of that result might have been, but were not, given. Put differently, appellate review of a trial judge’s reasons for judgment, while informed by context, is necessarily circumscribed by the reasons actually provided in support of a particular result. As noted by Justice Deschamps and Justice Fish, dissenting in the result in Gagnon at para. 53, reasons for judgment serve as guarantors of the propriety of the verdict. Where they are shown to reflect error in principle or palpable and overriding error in fact, appellate intervention may be necessary.
[41] Mr. H relies on this Court’s decision in R. v. Roth, 2020 BCCA 240 at para. 47, for the proposition that it is an error of law to subject the evidence of the defence to more rigorous scrutiny than the evidence of the Crown. Though not expressed in this way, I take Mr. H to maintain that the corollary (that it is an error of law to take a more forgiving approach to the evidence of the Crown than the defence) is also an error of law.
[47] It is an error of law for a trial judge to subject the evidence of the defence to more rigorous scrutiny than the evidence of the Crown. See, for example: R. v. Singh et al., 2020 MBCA 61 at paras. 31–33; R. v. Mehari, 2020 SKCA 37 at para. 29; R. v. Murray, 2020 BCCA 42 at para. 82; R. v. E.H., 2020 ONCA 405 at paras. 40–41; R. v. Willis, 2019 NSCA 64 at paras. 40–45; R. v. Wanihadie, 2019 ABCA 402 at paras. 34–43; R. v. Kiss, 2018 ONCA 184 at paras. 82–83; R. v. Gravesande, 2015 ONCA 774 at paras. 18–19, 43.[49] This is a notoriously difficult ground of appeal to make out: Mehari at para. 31; R. v. Radcliffe, 2017 ONCA 176 at paras. 23–26, leave to appeal to SCC ref’d, 37671 (7 December 2017). A trial judge has a unique advantage in hearing and seeing witnesses as they testify: E.H. at para. 44. Because of that fact, as well as other considerations, appeal courts afford substantial deference to a trial judge’s assessment of credibility, interfering with their credibility findings only in the face of overriding and palpable error: R. v. Wright, 2019 BCCA 327 at paras. 23–24; R. v. Vuradin, 2013 SCC 38 at para. 11.[50] Consequently, to obtain a new trial on the ground that the judge applied different standards in the assessment of credibility, an appellant must persuade the appeal court of a demonstrably flawed assessment methodology or reasoning process that affected the credibility determination: see Wanihadie at para. 36 and the cases cited therein.[51] For this reason, successful claims of an unbalanced approach to the assessment of credibility have often involved other identifiable errors, such as a misapprehension of material evidence; speculative reasoning; an overemphasis on demeanour; or a failure to consider testimony in the context of the evidence as a whole. Again, see Wanihadie at para. 38 and the cases listed there.
[44] As noted by the Crown, in G.F., the majority judgment expresses “serious reservations” about whether “uneven scrutiny” is a “helpful analytical tool to demonstrate error in credibility findings.”...
Reasons of the Trial Judge
[47] As noted above, in G.F., the majority judgment expressed concern that relying on uneven scrutiny as a stand-alone ground of appeal may inappropriately suggest that “the testimony of different witnesses necessarily deserves parallel or symmetrical analysis.” This case presents a good example of the need for vigilance to ensure that such an approach is not taken.
[50] In my view, the judge’s reasons display an appropriate level of sensitivity to the fact that the complainant was seven years old when the events at issue took place, 14-years-old when he spoke to police and 17-years-old when he testified at trial. For instance, the judge accepted that the complainant perceived as a seven- year-old that he was locked in the basement. The judge also found that as a fourteen-year-old he would not have been capable of carefully crafting his statement to the police about the information he shared with J.E.
Did the trial judge err by relying on speculation and unfounded assumptions in her assessment of the complainant’s testimony?
Having mentioned her name without thinking, he could well have regretted it and tried to protect her by saying that he had not told J.E. everything. He had reason to protect J.E. as J.E. had been sexually assaulted. [The complainant] may have wished to keep her from more inquiries about sexual assault. That [the complainant] lied to the police does not mean that he is lying to the Court.
[Emphasis added.]
[65] The judge was obliged to be sensitive to the complainant’s age at the time he spoke to the police and was entitled to accept his explanation that he wished to keep J.E. out of the police investigation. However, the portion of her reasoning which I have underlined above was not grounded in the evidence. The complainant did not testify that he mentioned J.E.’s name without thinking, regretted it and then tried to protect her. With the greatest respect, this aspect of the judge’s reasoning was speculative.
Did the trial judge err by relying on speculation and unfounded assumptions in her assessment of Mr. H’s credibility?
Conclusion on the trial judge’s credibility and reliability assessments
[85] ...After the complainant testified that he told his mother about the choking incident, the following exchange took place:
Q So, while you were living with your mother and [her partner and his daughter], you had no memory of Mr. [H] abusing you?
A No, I didn’t.
Q You agree? That’s --
A. Yes.
Q -- what your evidence is?
A. Yes.
Q And that’s why you didn’t share with your mother, because you lost the memory?
A. I didn’t know, yeah.
Q Pardon me?
A. I didn’t have a memory of it then, yeah.
[87] I acknowledge and respect the judge’s privileged position as the experienced, objective and impartial person who saw and heard the witnesses testify. I also acknowledge that “[i]t is not enough for an appellant to suggest a different interpretation of the evidence” and “mere disagreement with the judge’s view of the evidence is not a reviewable error”: R. v. Christensen, 2021 BCCA 392 at para. 56. However, this is not a case where Mr. H simply disagrees with the judge’s interpretation of the evidence. Rather, in this case, the judge’s interpretation of the complainant’s testimony is not supported by the record.
[89] With the benefit of reference to the transcript of the complainant’s testimony, it is evident that the judge misapprehended his testimony that he had no memory of the abuse at the time of the choking incident. The more difficult question is whether this misapprehension was material and essential to the reasoning process that led to conviction.
Disposition
R v RM, 2022 ONSC 3747
[June 14, 2022] Similar Fact Application as Between Counts [Justice Conlan]
AUTHOR’S NOTE: This decision is a short denial of a Crown application for similar fact consideration between counts on an Indictment. Though not significantly expanded upon in the judgment, it is important to note that the Crown failed to bring the application at the close of its case before Defence decisions about testimony. This played a significant role in the ultimate prejudicial v probative analysis that caused the exclusion of this evidence. Crown counsel normally has to bring this application at the close of its case at the latest. The evidence here was persuasive and of moderately high probative value, but was excluded solely on the prejudicial v probative value portion of the test.
Introduction
[2] The matters are being tried in the Superior Court of Justice, with a jury. The jury will start deliberating tomorrow.
The Application
The Positions of the Trial Participants
[4] R.M. acts for himself. He made no submissions on the application. Mr. Neil, appointed as amicus curiae, reminded this Court of the presumptive inadmissibility of similar act evidence, although he rightly acknowledged the rather strong similarity between what allegedly happened at the school on the first day and what allegedly happened at the school the day after...
[5] The argument by the Crown, a solid one, is that the application ought to be granted as the evidence at trial (now completed) suggests a strong similarity between the two alleged events at the school, high probative value in terms of whether R.M. had the necessary criminal intent on either or both dates, but especially on day one, and minimal prejudicial effect.
II. Analysis
The Law
[8] There are several steps in the process to admitting similar act evidence, but the first two require (i) a clear identification of the issue that the proposed evidence goes toward, and (ii) an assessment of the degree of similarity between the events in question. R. v. Handy, supra.
[9] To address a potential mens rea argument is a legitimate reason for which similar act evidence may be ruled admissible. It is also true that the test for admission of count-to-count similar act evidence is not quite as rigorous as it is regarding extrinsic similar act evidence.
The Application of the Law to our Case
[11] I am persuaded on balance that the Crown has satisfied all necessary ingredients of a successful similar act application but for one – the overall balancing of probative value versus prejudicial effect. I have decided to dismiss the application on the latter basis.
III. Conclusion
R v Guerra, 2022 ONSC 3445
[June 8, 2022] Juries: Demonstrative Aids and Summaries [Justice M. Dambrot]
AUTHOR’S NOTE: Ultimately, this decision was a loss for the defence, but it is chalk full of useful strategic information for the defence. Defence counsel must not shy away from the use of courtroom demonstrative aids and evidence summaries for juries. These tools can be very persuasive when deployed by the defence. Here the issue was a "video summary" - fragments of videos extracted from a mass of video. This is admissible through evidence and subject to cross-examination. Jurors are not supposed to tested on their ability to recall locations of many needles in many haystacks - summaries can focus them on testing the evidence. Things to note: descriptions should not offer advice about inferences the party wants the jury to draw and a jury instruction is necessary to ensure no misuse of the documents. There are many forensic video service providers out there that are available to the defence. These should be sought where things relevant to the defence can be enhanced or isolated through manipulation of the video evidence in a case.
The Charge
[2] Kedar Guerra, Ethan Lee and Atneil Nelson are being tried by me, with a jury, on an indictment alleging that on December 31, 2019, at the City of Toronto, they committed the first degree murder of Clinton Williams. Clinton Williams was shot in the chest in the underground parking lot of the apartment building where he resided. He was shot by a man who emerged from a motor vehicle that followed the deceased down the parking lot’s entrance ramp.
The Crown's Position
[5] During the morning of December 31, 2019, Guerra and Williams communicated with each other on their cell phones. Guerra called Nelson before and after his calls to Williams. Nelson was in touch with Lee during the afternoon of December 31, 2019.
[6] Later in the afternoon of December 31, 2019, Nelson picked Lee up in a silver Mercedes Benz wagon (“Benz”) that he had borrowed from his girlfriend. Nelson and Lee then proceeded to the Travelodge Hotel in Scarborough in the Benz. The hotel is a short distance from the deceased’s apartment. Nelson and Lee were greeted by Guerra in the hotel parking lot. At 4:57 p.m., the three men entered a hotel room in the Travelodge along with Guerra’s fiancée.
[7] At 5:01 p.m., while he was in the hotel room, Guerra called the deceased. The call lasted 91 seconds.
[8] Nelson, Lee and Guerra left the hotel room at 5:24 p.m., got into the Benz and departed from the hotel.
The Video Chronology
[15] While of course every case is different, this case is typical....
...The police began searching for video that would trace the movements of the vehicle both before and after the shooting. As a result, the police recovered a large mass of video.
It is also commonplace to provide the trier of fact with a compilation of pertinent extracts from a series of videos, often placing different images taken with different cameras in chronological order. Again, if not done in a misleading manner, this assists the trier of fact to understand the events being displayed. Doing this is no different than adducing schedules or summaries to effectively synthesize cumbersome and confusing evidence. This has long been an accepted practice in cases where a large body of documents have been led in evidence: R. v. Scheel (1978), 42 C.C.C. (2d) 31 (Ont. C.A.). This principle has been applied to composite videos in cases such as R. v. Zoraik, 2012 BCCA 283, at para. 22, and R. v. Barreira, 2017 ONSC 1665.
[18] However, even compiling and presenting the fragments of the video the Crown considers relevant has its challenges. It is very difficult to present fragments of video evidence taken at various locations and from different vantage points in a way that permits jurors to understand how the pieces fit together and how to fulfil their responsibility to reach a true verdict according to the evidence. As a result, trial judges have permitted the Crown to enhance the video presentation in a variety of ways to ensure that it is comprehensible.
[20] That is what the Crown has done in the video chronology under consideration here. To vastly oversimplify, the compilation covers a person whom the Crown says is Guerra arriving at a Travelodge hotel on December 30, 2019; two men that the Crown says are Lee and Nelson meeting Guerra at the hotel on December 31; all three men going to Guerra’s hotel room; the three men leaving the room; three men that the Crown says are the same three men getting into a vehicle; the vehicle proceeding to Williams’ apartment; the shooting; and the departure of the car.
[21] The three key purposes of the video compilation are: (1) to make it possible for the jurors to assess whether they are satisfied that the vehicle that left the Travelodge is the one that was present at the shooting; (2) to make it possible for the jurors to assess whether the three accused were in the vehicle at the time of the shooting; and (3) to make it possible for the jurors to assess whether Mr. Lee was the shooter.
Analysis
[24] This notion that only original evidence is admissible is an evocation of the traditional best evidence rule. However, the traditional common law best evidence rule is no longer applied strictly. The rule is best considered today as a general guide for choosing the appropriate method of proof: R. v. Shayesteh (1996), 31 O.R. (3d) 161 (C.A.). Moreover, as noted by Martin J.A. in R. V. Scheel (1978), 42 C.C.C. (3d) 31 (Ont. C.A.), at para. 18, the introduction of summaries does not offend against the rule that requires the production of original documents where the primary source of the summaries is in evidence.
[26] Similarly, it has become widely accepted in recent decades that charts, schedules and summaries can be adduced in evidence to assist the trier of fact with organizing, clarifying, understanding and evaluating evidence that has already been led. A demonstrative aid that organizes or distils a large amount of information previously admitted in a trial can serve multiple purposes, including: (1) promoting trial efficiency; (2) organizing information already received in the trial; (3) decreasing the potential for confusion among the triers of fact; (4) streamlining the task of the triers of fact; and (5) assisting the jury to understand the evidence reasonably, intelligently and expeditiously. The usefulness of the summary will always depend on whether the trier of fact accepts the proof of the facts upon which the summary rests.
Assistance should be given to a jury where review of the evidence by them would be cumbersome, unduly time consuming, and confusing. Jurors are selected to assess the facts of a case, not so that they can be tested on their abilities to locate needles in haystacks. Any tools that they can be provided to perform their role as fact finders, fairly, with an even hand, and in accordance with the rules of evidence, should be accommodated.
[34] In particular, I directed that the document may suggest that a person or vehicle seen in one still shot is the same person or vehicle seen in another, but it may not include the opinion of the maker of the document as to who any such person is, or what vehicle it is, or state the author’s opinion of the destination of a person or vehicle. It may also not use value-laden words such as “suspect” or “victim”. Terms such as “person 1”, “vehicle 1”, “black vehicle”, “person of interest” and “deceased” are preferable.
[35] In this case, I have scrutinized a draft of the proposed Video Chronology. It consists of 193 still shots extracted from the video collected by the police. The jury will be able to play the video from which the shots are extracted in the jury room, which will make it easy for them to view the shots in context. In my view, the short descriptions affixed to the still shots are each composed of a few neutral words and are fair and, in most cases, obvious descriptions of what is depicted in the still shots themselves, or in the surrounding video. The descriptions do not offer advice as to the inferences that the Crown seeks to have the jury draw from what is depicted and described.
[36] In my view, this document is little different in principle from what Fairburn J. admitted in Kanagasivam: a PowerPoint presentation used to plot cell tower and phone information, including phone numbers and subscriber information, derived from a variety of sources, linked to locations of interest on maps at the times and places where offences were alleged to have been committed.