This week’s top three summaries: R v Abdullahi, 2023 SCC 19: #appellate review, crim org, R v Murillo, 2023 SKCA 78: #conflicting evidence, and R v Phillips, 2023 ABCA 210: #Gladue, addiction mitigation.
This week's top two cases deal primarily with appellate law. For great general reference on the law and practice of witness prep, 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 Abdullahi, 2023 SCC 19
[July 14, 2023] Appellate Review of Jury Instructions, Criminal Organisation Definition [Reasons by Rowe J. with Wagner C.J., Karakatsanis, Martin, Kasirer, Jamal and O'Bonsawin JJ. concurring and Côté dissenting]
AUTHOR’S NOTE: This case provides a new lens through which to assess sufficiency or accuracy of jury instructions going forward. It will be the reference case for all appeals suggesting problems with jury instructions and is mandatory reading for all trial lawyers that deal with juries either at trial or appeal level. Trial lawyers should remember that closing arguments to the jury is not everything in a criminal jury trial - the pre-charge conference is the most important legal argument you will make because it influences what the judge will tell the jury. The SCC herein reinforces that this is meant to be a meaningful exchange - if it becomes not meaningful due to the judge, your job as trial counsel is to preserve the chance for appeal. Arguments on appeal are usually more persuasive when trial counsel pushed the point first. This case also reinforces the need to distinguish any form of organization amongst criminals from a criminal organization. The need for structure and continuity distinguishes criminal organizations from groups of criminals coming together opportunistically for a crime.
[1] This appeal presents an opportunity to provide guidance on two issues: (1) the approach to appellate review for legal error in jury instructions and (2) the definition of a “criminal organization” under the Criminal Code, R.S.C. 1985, c. C-46.
[4] This Court has indicated that appellate courts should adopt a “functional approach” to the review of jury instructions for legal error. This respects the jury’s role as the trier of fact while enabling effective review of the trial judge’s duty to ensure the jury understands the law that it is to apply. The approach supports the function of jury instructions: to equip the jury properly to decide the case according to the law and the evidence. The meaning of “properly” equipping a jury is therefore essential to understanding the appellate court’s task of identifying legal error in jury instructions. Such errors have been described using a variety of terms in the jurisprudence, notably “misdirection” and “non-direction”. In these reasons, I will explain why it is helpful to understand the concept of “misdirection” in terms of whether the instructions would have equipped the jury with an accurate understanding of the law to decide the case. Similarly, it is helpful to understand the concept of “non-direction” in terms of whether the instructions would have equipped the jury with a sufficient understanding of the law to decide the case. These concepts direct the appellate court’s focus to the function of the instructions and the overall understanding of a given issue in the mind of the jury. Thus, a properly equipped jury can be understood as one that is both accurately and sufficiently instructed to decide the case.
[5] Applying the foregoing, I conclude that the trial judge erred in law in his instructions to the jury by failing to explain that a criminal organization is one that by virtue of its structure and continuity poses an enhanced threat to society. This requirement distinguishes criminal organizations from other groups of offenders who act in concert; it also helps guard against improper reasoning, notably reliance on stereotypes, as a basis for identifying a criminal organization. Without an explanation of this requirement in the judge’s instructions, the jury was not sufficiently instructed on the legal standard to apply to the evidence in concluding that a criminal organization existed….
[6] I would therefore allow the appeal, set aside the appellant’s conviction for participation in the activities of a criminal organization, and order a new trial on that count.
[8] The charges against the appellant revolved around an incident on March 31, 2013. Based on wiretap information, police believed the appellant and his associates were transporting five illegal firearms from Windsor to Toronto in a rental vehicle. Police followed what they believed was the vehicle and, when it began driving erratically, pursued it to an apartment complex on Dixon Road in Toronto. There, they found the vehicle abandoned in the parking garage. A grocery bag was found in the front passenger seat containing three illegal firearms. The other two firearms were never recovered.
[9] In the following days, the wiretaps captured discussions alluding to the police pursuit. One individual referred to himself as Ahmed Abdullahi; his voice was heard in other calls, where he was referred to as “H” and “HNI”. Discussions between other individuals referred to “HNIC”.
[11] The appellant was tried jointly with a co-accused before a judge and jury. The primary issue was identity — namely, whether the appellant was one of those heard in the intercepts, and whether the appellant was in the rental vehicle on March 31, 2013. Circumstantial evidence identifying the appellant included forensic evidence and the wiretap intercepts. One task for the jury was to identify who was speaking or referred to in the intercepts. The Crown alleged that the appellant was the person referred to as “H”, “HNI”, or “HNIC”.
[12] In order to obtain a conviction on the count of participation in the activities of a criminal organization, the Crown first had to prove that a “criminal organization” existed. Section 467.1(1) of the Criminal Code defines a “criminal organization” as follows:
criminal organization means a group, however organized, that
(a) is composed of three or more persons in or outside Canada; and
(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.
It does not include a group of persons that forms randomly for the immediate commission of a single offence.
[13] The Crown alleged that the individuals heard in the intercepts, including the appellant, were members of an “urban street gang” whose “turf” was an area of apartment buildings on Dixon Road. In closing argument, the Crown pointed to the group’s organized strategies to conceal their criminal activity, which reflected “a cohesiveness that is characteristic of urban street gangs” and “a continuous enterprise” (A.R., vol. XXXI, at pp. 94-95). The Crown suggested, for example, that the group had lookouts near apartment buildings, escape routes to avoid arrest, places to conceal contraband, and assigned roles; the co-accused, for example, was alleged to be a “courier”. The Crown also alleged that the members of the group hid their criminal activities by speaking Somali and by using gang terminology.
[15] On cross-examination, Detective Kerr acknowledged that individuals will often mimic gang culture for social — but not criminal — reasons. He agreed that the terms he described are also regularly used by people who are not members of a gang and that wearing red does not necessarily indicate Bloods association. He also agreed that the alleged Bloods hand sign could be interpreted as simply an “A-Okay” sign.
[17] After closing arguments, the judge held a pre-charge conference. The defence repeated its argument that the alleged criminal organization lacked structure and continuity, citing this Court’s decision in Venneri. The judge provided counsel with a draft of his final jury instructions. Changes were discussed and made, but defence counsel raised no concern regarding the judge’s explanation of what constitutes a criminal organization within the meaning of the offence.
[18] …The judge dealt with the required elements of the offence toward the end of his charge. He told the jury that there are three required elements: (1) the existence of a criminal organization; (2) knowing participation in or contribution to any activity of the criminal organization by the accused; and (3) the intention of the accused to enhance the ability of the criminal organization to facilitate or commit an indictable offence. On the first element, the judge explained:
The first element is the existence of a criminal organization. A criminal organization is
(a) a group, however organized, that is composed of three or more persons in or outside Canada; and that
(b) has, as one of its main purposes or activities, the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit including a financial benefit by the group or any one of the persons who constitute the group.
It is necessary to elaborate upon each of the components of that definition. A requirement of a group of three or more persons is not met if the group of three or more persons was formed randomly for the immediate commission of a single offence. The formation must not be random. The formation must not be for the purpose of committing an offence.
(A.R., vol. I, at pp. 203-4)
[19] The balance of the judge’s charge on the elements of the criminal organization offence related to the second and third elements: whether the accused participated in the activities of the organization and the purpose of that participation.
III. Issue
[27] The issue in this appeal is whether the trial judge erred in law in his instructions to the jury on the count of participation in the activities of a criminal organization, such that a new trial should be ordered on that count.
IV . Analysis
A. Legal Framework for Appellate Review of Jury Instructions
(1) The Role of Appellate Courts in Reviewing Jury Instructions
[31] When reviewing a trial judge’s instructions to the jury for legal error, appellate courts need to be mindful of the division of duties in a jury trial. The jury is the sole trier of fact. But a jury is not presumed to know the law that it must apply when reaching its verdict. The judge regulates and orders the proceedings, including any legal rulings needed during the trial, and instructs the jury as to the law. Counsel for the Crown and the defence place evidence before the jury, argue what facts the jury should find based on the evidence, and advocate for a given verdict (see R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 27-28; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 30).
[32] …appellate courts need also to be mindful that the trial judge bears the responsibility to instruct the jury on the law (R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 37; R. v. Khill, 2021 SCC 37, at para. 144). In addition, juries do not have the benefit of judicial experience on certain issues; for example, a Vetrovec caution may be required “to bring home to lay jurors the accumulated wisdom of the law’s experience with unsavoury witnesses” (R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 4; see also Rodgerson, at para. 34; White 2011, at paras. 44 and 55-56). The trial judge needs to ensure that the jury understands its task and is properly equipped to make its decision. The appellate court ensures that the trial judge has fulfilled their role to properly instruct the jury (Jacquard, at paras. 14, 32 and 62; R. v. Ménard, [1998] 2 S.C.R. 109, at para. 27; R. v. Cooper, [1993] 1 S.C.R. 146, at p. 163).
[33] Finally, the appellate court’s role in reviewing the jury instructions for legal error needs to be distinguished from the operation of the curative proviso under s. 686(1)(b)(iii) of the Criminal Code. The approach described in these reasons is used to determine whether there is an error of law in a judge’s instructions to the jury. The curative proviso, on the other hand, is to be considered only where an error of law has already been identified; it deals with whether such an error can be “cured” such that it is not warranted for the appellate court to set aside the verdict and order a new trial....
(2) A Functional Approach to Appellate Review of Jury Instructions
[35] Let me reiterate principles underlying this functional approach. The accused is entitled to a jury that is properly, not perfectly, instructed (Jacquard, at paras. 2 and 62; Daley, at para. 31; Araya, at para. 39; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 9). The charge must be read as a whole (Cooper, at p. 163; Daley, at paras. 31 and 53; Calnen, at para. 8). It is the substance of the charge that matters, not adherence to a prescribed formula or particular sequence (Daley, at paras. 30 and 53; Calnen, at para. 8). The charge must be considered not in isolation but in the context of the trial as a whole (Daley, at para. 58; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32). The overriding question is whether the jury understood or was “properly equipped” with the law to apply to the evidence (Calnen, at para. 9; Jacquard, at para. 14). Each of the foregoing captures an aspect of a functional approach. How appellate courts have given effect to this guidance on occasion has lacked consistency.
[36] The appellate court’s task needs to be directed toward the ultimate “function” of jury instructions: to properly equip the jury to decide the case. In other words, when reviewing a charge to a jury for potential legal error, appellate courts need to read the charge as a whole and determine whether the overall effect of the charge properly equipped the jury in the circumstances of the trial to decide the case according to the law and the evidence. [PJM Emphasis]
[37] What does it mean for a jury to be “properly” equipped? Many terms have been used in the jurisprudence to describe errors in jury instructions that render a jury improperly equipped, notably “misdirection” and “non-direction”. In my view, the concept of “misdirection” is better understood in terms of whether the instructions would have equipped the jury with an accurate understanding of the law to decide the case. Similarly, the concept of “non-direction” is better understood in terms of whether the instructions would have equipped the jury with a sufficient understanding of the law to decide the case. Thus, it is helpful to view a properly equipped jury as one that is both (a) accurately and (b) sufficiently instructed….
(a) Whether the Jury Was Accurately Instructed
[39] These sorts of errors have typically been referred to as “misdirection” (see, e.g., Rodgerson, at para. 37; Ménard, at paras. 29-30; R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 9; R. v. Morin, [1988] 2 S.C.R. 345, at pp. 354-55; Boucher v. The Queen, [1955] S.C.R. 16). As I have explained, they are better understood in terms of whether the jury was equipped with an accurate understanding of the law to decide the case. This focuses the inquiry on the overall understanding of a given issue in the mind of the jury.
[40] …The question is whether the jury was accurately instructed to decide the case according to the law and the evidence (Jacquard, at para. 32).
[41] The charge must be read as a whole. As this Court has stated, “the right of an accused to a properly instructed jury does not equate with the right to a perfectly instructed jury” (Jacquard, at para. 32). A single ambiguous or problematic statement in one part of a charge will not necessarily be an error of law where the charge as a whole equipped the jury with an accurate understanding of the relevant legal issue (R. v. Goforth, 2022 SCC 25, at paras. 35 and 40; Jaw, at para. 32; Cooper, at pp. 163-64). One misstatement might be compensated for by an accurate statement elsewhere in the charge, provided the jury would have accurately understood the law it must apply (White 2011, at paras. 82 and 84; Ménard, at para. 30; Jacquard, at para. 20).
[42] The organization of the charge and the placement of alleged inaccuracies within it will inform the overall accuracy of the charge (Jaw, at para. 33). For example, a problematic statement at one part of the charge may be less likely to undermine a proper statement of the law in a more material part of it (see, e.g., Khela, at para. 55; R. v. Athwal, 2017 ONCA 222, at paras. 2-3 (CanLII)). Conversely, it may be more likely for a jury to have been misled where the judge states the law correctly in a more generic part of the charge but then inaccurately states the same issue in a more material or significant part of the charge (see, e.g., R. v. Subramaniam, 2022 BCCA 141, 413 C.C.C. (3d) 56, at paras. 73-77; R. v. Bryce (2001), 140 O.A.C. 126, at paras. 13-15 and 20). There is a greater risk that the jury has an inaccurate understanding of the law where an inaccurate statement is made in a recharge in response to a question from the jury (Brydon, at para. 19; R. v. Naglik, [1993] 3 S.C.R. 122, at p. 139); this may well compound and thereby make more serious such an error.
(b) Whether the Jury Was Sufficiently Instructed
[44] In some cases, it is alleged that the judge did not say something that needed to have been said in order for the jury to be properly equipped to decide the case. It is thus alleged that the jury was not sufficiently instructed. In some instances, a failure to give an instruction, either with sufficient detail or at all, will be an error of law.
[45] These situations have typically been referred to as “non-direction” (see, e.g., Khill, at para. 145; Lifchus, at para. 9; R. v. Bevan, [1993] 2 S.C.R. 599, at p. 619). As I have explained, “non-direction” is better understood in terms of whether the instructions would have equipped the jury with a sufficient understanding of the law to decide the case. This directs the appellate court to the function of the instructions.
[46] The sufficiency of an instruction may be understood as involving two related questions: (i) whether an instruction was required and (ii) whether an instruction that was required was given with sufficient detail.
(i) Whether an Instruction Was Required
[47] Some instructions must be given in every jury trial. Other instructions are required in certain circumstances, but not in others. When faced with an allegation of insufficient instruction, an appellate court should consider whether the impugned instruction was mandatory or if its requirement was contingent on the circumstances of the case.
[48] Mandatory instructions that must be dealt with in every case include, for example, an explanation of the standard of proof beyond a reasonable doubt (Lifchus, at para. 22). The instructions must also include, inter alia, an explanation of the charges faced by the accused, including the required elements of each offence to be left with the jury; an explanation of the theories of each side; a review of the evidence relating to the law; the possible verdicts open to the jury; and the requirement of unanimity for reaching a verdict (Daley, at para. 29). The omission of a mandatory instruction will necessarily be an error of law.
[49] Contingent instructions are those that may be required in some cases but not others. They may include, for example, a Vetrovec warning where there is unsupported evidence by unsavoury witnesses (Khela, at para. 11), or a limiting instruction against general propensity reasoning (Calnen, at para. 5). Defences and included offences are put to the jury only where they bear an air of reality on the evidence (R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 50; R. v. Aalders, [1993] 2 S.C.R. 482, at pp. 504-5)….
(ii) Whether the Instruction Was Given With Sufficient Detail
[50] When an instruction is required (whether it is mandatory or contingent), appellate courts need to determine whether the instruction was given with sufficient detail to equip the jury to decide the case.
[51] For example, an explanation of the standard of proof will require more than simply stating the phrase “beyond a reasonable doubt” (Lifchus, at para. 22). This is mandatory in every case. Or, the evidence may require a specific instruction. An example is Rodgerson, where the evidence of concealment and clean-up could be relevant to two issues: the accused’s self-defence claim and his intent to commit murder. The trial judge instructed the jury to consider this post-offence conduct evidence along with all the other evidence at trial. This Court concluded that a more specific instruction was required on the limited use of the evidence for the issue of intent, as the evidence could not be used in the same manner as for the claim of self- defence. The failure to give this more specific instruction constituted an error of law (paras. 27-29; see also Khill, at paras. 125-27 and 129-30). The need for this instruction was contingent on the circumstances of the case.
[52] Where a jury is asked to apply provisions that have been interpreted by the courts, it will often be insufficient for a judge to simply recite the relevant provisions to the jury without explaining the meaning given to them in the jurisprudence (C. Granger, The Criminal Jury Trial in Canada (2nd ed. 1996), at p. 246; see, e.g., R. v. Maxwell (1975), 26 C.C.C. (2d) 322 (Ont. C.A.)). It is not unusual for courts to read in requirements or qualifications to Criminal Code provisions that are not apparent from the text of the provision. For example, in R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157, this Court read the wording of the offence of having care or control of a motor vehicle while impaired under s. 253(1) of the Criminal Code (since repealed) as requiring a realistic risk of danger to persons or property. In such circumstances, merely reciting the text of the provision to the jury would be insufficient.
[53] Like accuracy, the sufficiency of an instruction must be assessed in the context of the charge as a whole….
[54] There is no strict rule to determine the level of detail for an instruction to be sufficient. The level of detail that is required depends on the circumstances of each case (Rodgerson, at para. 30; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 50; Daley, at paras. 57 and 76). Moreover, judges are not required to adhere to specific wording; what counts is the substance of the instruction, not its adherence to or departure from a prescriptive formula (Daley, at paras. 30 and 53; Mack, at para. 48).
[55] Model jury instructions serve as important guides, but they are not decisive of the sufficiency of an instruction….
….This Court has cautioned against overreliance on model instructions; they are a valuable tool, not the final product (R. v. R.V., 2021 SCC 10, at para. 64; Rodgerson, at paras. 51 and 54).
[56] Appellate courts should also be mindful that brevity is a virtue in jury instructions (Daley, at para. 56). The judge has a duty to “decant and simplify” the law (Jacquard, at para. 13)….
(c) Consideration of the Charge in Light of the Circumstances of the Trial
[57] The central inquiry on appellate review is whether the instructions properly equipped the jury to decide the case. In answering this question, a functional approach requires that appellate courts consider the instructions not in isolation, but rather in the context of the trial. Every trial is different. An instruction that properly equips the jury in one trial will not do so in another trial.
[58] ….Again, a properly equipped jury can be understood as one that is both accurately and sufficiently instructed. The circumstances of the trial must be directed to this inquiry and not be used to replace the instructions. To do so would subvert the trial judge’s duty to instruct the jury accurately and sufficiently.
[59] With the foregoing in mind, I turn to the three considerations from the “trial as a whole” relied on by the majority in concluding that the instructions disclosed no legal error: (i) the evidence; (ii) the closing arguments of counsel; and (iii) the lack of objection by defence counsel….
(i) Evidence
[60] The evidence at trial informs what the jury needs to understand in order to be equipped properly to decide the case. Thus, the evidence at trial can inform the sufficiency of certain instructions. For example, whether a Vetrovec instruction is required will depend on the witnesses; if there are no unsavoury witnesses, then it is not an error of law to omit a Vetrovec instruction….
[61] The evidence does not inform the sufficiency of every instruction. For example, a sufficiently detailed instruction on the standard of proof must explain the phrase “beyond a reasonable doubt” in accordance with the jurisprudence, regardless of the evidence….
(ii) Closing Arguments of Counsel
[63] …Notably, the closing arguments of counsel can be relevant to whether a contingent instruction was required. For example, in Khill, defence counsel’s repeated emphasis on the final “split second” of the incident supported the need for the trial judge to provide a specific instruction on the accused’s “role in the incident” in his instruction on self-defence (paras. 134-35). Or, if counsel makes a problematic statement in closing argument, it can be incumbent on the judge to correct this and to admonish the jury to disregard counsel’s statements; a failure to do so may amount to an error (R. v. Rose, [1998] 3 S.C.R. 262, at paras. 63 and 126-27).
[64] This Court has stated that counsel’s closing arguments may “fill gaps” in the judge’s charge (Daley, at para. 58). However, this statement must be understood in light of the nature of the alleged error. Appellate courts have viewed counsel’s closing arguments as capable of filling gaps in the judge’s review of the evidence (see, e.g., R. v. Connors, 2007 NLCA 55, 269 Nfld. & P.E.I.R. 179, at para. 15; R. v. Smith, 2010 BCCA 35, 282 B.C.A.C. 145, at paras. 41 and 46; R. v. Krasniqi, 2012 ONCA 561, 291 C.C.C. (3d) 236, at para. 81). This is because judges are not required to review in detail the whole of the evidence; they are required only to review critical parts of the evidence and to ensure that the jury understands the significance of the evidence having regard to the issues in the case (Daley, at paras. 56-57; R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267, at para. 47).
[65] I agree with the intervener, the Criminal Lawyers’ Association of Ontario, that counsel’s closing arguments cannot replace an accurate and sufficient instruction on the law. The fact that counsel might have explained a legal principle properly will not correct the trial judge’s failure to do so (Avetysan, at paras. 23-24; R. v. Gray, 2012 ABCA 51, 522 A.R. 374, at para. 19). Juries are invariably told to take the law from the judge and not from counsel or other sources….
….Reliance on multiple sources might well not only confuse juries but also frustrate appellate review of a jury instruction for legal error, as appellate courts would not know which legal principles the jury applied. [Emphasis by PJM]
(iii) Silence of Counsel
[66] …This is intended to be a meaningful exchange. Counsel should lay their cards on the table, and the judge should be mindful of what counsel says, bearing in mind that it is an adversarial process. After the judge has instructed the jury, counsel have an opportunity to raise objections to the charge or to request clarifications or additional instructions before the jury commences its deliberations. As with the pre-charge conference, this is meant to be a meaningful exchange where counsel lay their cards on the table. Finally, when juries raise questions during their deliberations, counsel have the opportunity to provide submissions to the judge as to how to answer the questions. Where counsel fails at these various opportunities to request the inclusion of an instruction or fails to raise an objection to the charge as delivered, appellate courts have often turned to counsel’s silence as an important consideration. [Emphasis by PJM]
[67] Although the silence of counsel can be a relevant consideration, it should be recalled that the responsibility for the jury charge lies with the trial judge, not counsel. This Court has on several occasions stated that the silence of counsel, while relevant, is not determinative (see, e.g., Thériault v. The Queen, [1981] 1 S.C.R. 336, at pp. 343-44; Daley, at para. 58; Mack, at para. 60). To hold otherwise would “unequivocally prejudice an accused’s right of appeal in cases where counsel is inexperienced with jury trials” (Jacquard, at para. 37). The silence of counsel is simply one of many considerations under a functional approach.
[68] Counsel’s silence may be particularly relevant as to whether a contingent instruction was required. For example, the lack of a request by defence counsel for the inclusion of a limiting instruction against general propensity reasoning may reinforce the conclusion that such an instruction was not required in the circumstances of the case (Calnen, at para. 41). Counsel’s silence may also suggest that an instruction that was given was sufficiently detailed. For example, the lack of objection may indicate the sufficiency of a judge’s Vetrovec instruction (Khela) or instructions on advanced intoxication (Daley)….
[69] Counsel’s silence may be particularly significant where there are indications that it was a tactical decision. If the absence of an instruction at trial could have benefited the party who argues on appeal that it was required, then the appellate court might ask whether counsel made the tactical decision not to seek the instruction at trial (Calnen, at para. 41; see also R. v. Royz, 2009 SCC 13, [2009] 1 S.C.R. 423, at para. 3). This can be a significant consideration. Counsel cannot withhold an objection at trial and save it for an appeal…
…Conversely, if the omission of an instruction would have had no apparent benefit for the appealing party, this may suggest that the error was an oversight rather than a tactical decision (Khill, at para. 144; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 48).
[70] Appellate courts may also be called on to consider whether counsel’s silence is relevant to the curative proviso. Counsel’s silence may suggest, for example, that while an omission in the judge’s instructions was an error of law, the error was harmless in the circumstances (R. v. Arcangioli, [1994] 1 S.C.R. 129, at p. 143; Jaw, at para. 44). As noted before, this is a distinct inquiry.
(3) Summary
[72] In sum, when reviewing a jury charge for potential legal error, appellate courts should adopt a functional approach by reading the charge as a whole and determining whether the overall effect of the charge achieved its function: to properly equip the jury in the circumstances of the trial to decide the case according to the law and the evidence. The appellate court’s task needs at all times to be directed to this function. It is helpful to view a properly equipped jury as one that is both accurately and sufficiently instructed. The appellate court should consider if the jury had an accurate understanding of the law from what the judge said in the charge, bearing in mind that an instruction does not need to meet an idealized model, nor must it use prescribed wording. The appellate court should also consider if the judge erred by failing to give an instruction, either with sufficient detail or at all. While some instructions are mandatory and their omission will constitute an error of law, whether other instructions are needed will be contingent on the circumstances of the case. Whenever an instruction is required, the judge needs to provide that instruction with sufficient detail for the jury to undertake its task. The circumstances of the trial cannot replace the judge’s duty to ensure the jury is properly equipped, but they do inform what the jury needed to understand to decide the case.
B. Definition of a Criminal Organization
[73] I turn now to the instruction to the jury at issue in this appeal and to the definition of a criminal organization.
[74] …Sections 467.11 to 467.13 of the Criminal Code set out four substantive offences targeting escalating degrees of involvement with a criminal organization. In addition to these offences, pursuant to s. 2, any other serious offence committed for the benefit of, at the direction of, or in association with a criminal organization is also considered a “criminal organization offence”. Other provisions of the Criminal Code distinguish the (ordinary) commission of certain offences from their commission in relation to a criminal organization, e.g., possession of an explosive (s. 82(2)) and various offences involving a firearm (ss. 239(1)(a), 244(2)(a), 244.2(3)(a), 279(1.1)(a), 279.1(2)(a), 344(1)(a) and 346(1.1)(a)).
(1) Distinguishing Qualities of a Criminal Organization
[76] Not every group of three or more persons that facilitates or commits a serious offence for a material benefit is a criminal organization. This Court in Venneri interpreted Parliament’s direction in s. 467.1(1) of the Criminal Code that a criminal organization be “organized” in some fashion as requiring the group to have “some form of structure and degree of continuity” before the “exceptional regime” of the organized crime provisions of the Criminal Code is engaged (para. 29).
[78] The purpose of the Criminal Code’s criminal organization regime is to identify and undermine groups that pose an enhanced threat to society due to the institutional advantages of structure and continuity (Venneri, at para. 40). Structured and continuous criminal entities offer advantages to their members by consolidating and retaining knowledge; sharing customers and resources; developing specializations; dividing labour; fostering trust and loyalty; and developing reputations in the community, including for violence (para. 36). These same advantages enable criminal organizations to elude law enforcement more effectively.
[80] The enhanced threat to society posed by criminal organizations by virtue of their structure and continuity explains why the criminal organization regime is considered exceptional. Groups of individuals acting in concert, where they lack structure and continuity, do not pose the same enhanced threat to society constituted by criminal organizations (Venneri, at paras. 27, 29 and 40). As Fish J. explained in Venneri:
Stripped of the features of continuity and structure, “organized crime” simply becomes all serious crime committed by a group of three or more persons for a material benefit. Parliament has already criminalized that activity through the offences of conspiracy, aiding and abetting, and the “common intention” provisions of the Code (see, e.g., ss. 21 and 465(1)). [para. 35]
Identifying a group as a criminal organization when it lacks the requisite qualities of structure and continuity “would cast a net broader than that intended by Parliament” and subject the group to the exceptional procedural and substantive consequences of the criminal organization regime (paras. 31 and 35).
[82] Criminal organizations are opportunistic and adaptive. They vary based on which “business model” proves successful. They can take forms that do not fit stereotypical models of organized crime but nonetheless can pose the type of enhanced threat to society contemplated by Parliament. Thus, the definition of a criminal organization must be applied flexibly (see Venneri, at paras. 28 and 36-41; R. v. Terezakis, 2007 BCCA 384, 223 C.C.C. (3d) 344, at para. 34; Beauchamp, at paras. 145-48).
[83] However, flexibility in the acceptable forms of structure and degree of continuity does not mean that structure and continuity are optional (Venneri, at paras. 27-31). Rather, the group must have structure and continuity to give rise to the sort of enhanced threat to society that Parliament has sought to combat, bearing in mind the differences from other groups of offenders such as conspirators.
(2) Improper Reasoning
[84] I agree with the appellant and the intervener, the Criminal Lawyers’ Association of Ontario, that careful consideration of a group’s structure and continuity is needed to guard against improper reasoning in identifying a criminal organization. This is needed to avoid the risk that police, lawyers, juries, and judges could identify a group as a criminal organization based on shared characteristics such as ethnicity, cultural background, neighbourhood, religion, language, or dialect. While such characteristics may indicate a common social or cultural identity among persons who commit offences, they are irrelevant in identifying the existence of a criminal organization. To view such characteristics as indicative of organized crime is to depart from Parliament’s intention and to do so in a way that undercuts a key goal of Canadian society, cultural diversity.
[85] The flexibility with which the definition of a criminal organization is applied must not become an invitation for irrelevant considerations or improper reasoning. The risk of improper reasoning is especially acute where an accused is a member of a marginalized community, underrepresented among police, lawyers, jurors, or the judiciary, and whose characteristics and practices may well be less familiar and possibly the subject of biases, prejudices, or stereotypes among those tasked with enforcing the law and passing judgment….
C. Application to the Circumstances of This Case
[87] The appellant alleges that the jury was not properly equipped to decide the case because the judge did not say something that he was required to say. This is an allegation of insufficient instruction.
[88] The existence of a criminal organization is a required element of the offence of participation in the activities of a criminal organization. An instruction on this element is therefore mandatory. The alleged criminal organization must have structure and continuity to give rise to the sort of enhanced threat to society that Parliament has sought to combat. Therefore, in order for the jury to be sufficiently equipped to decide whether a criminal organization existed, the instruction must include an explanation of structure and continuity.
[89] The trial judge’s instructions in this case did not sufficiently equip the jury to determine whether a criminal organization existed. Rather, the judge merely recited the definition in s. 467.1(1) of the Criminal Code. This would not have equipped the jury with an understanding that a criminal organization must pose an enhanced threat to society by virtue of its structure and continuity. This requirement is not apparent from the bare text of the definition. To the contrary, in Venneri, Fish J. surveyed the jurisprudence where some trial courts had incorrectly found that very little or no organization was required (para. 27). Jurors cannot be expected to divine an interpretation of the statutory text that even judges could not ascertain before this Court’s guidance….
[92] The two aspects of the evidence at trial relied on by the majority warrant further comment. The evidence of Detective Kerr was, in my respectful view, the sort of evidence that risked inviting improper reasoning by the jury. His evidence did not relate to the structure or continuity of any particular criminal organization but referred generically to “the nature, customs, culture, characteristics, identifiers, terminology, behaviour, and activities of urban street gangs” (C.A. reasons, at para. 73). He agreed in cross-examination that many of these alleged “indicia” of organized criminality could just as easily indicate social bonding or participation in “urban culture”. The generic nature of this evidence posed a risk that the jury would find the existence of a criminal organization based on a stereotypical model of an “urban street gang” whose characteristics and practices may in some ways mirror the cultural norms of racialized communities in Toronto, or worse, may be the subject of biases, prejudices, and stereotypes. This aspect of the evidence, rather than indicating the sufficiency of the judge’s instructions, reinforces the importance of a clear instruction on structure and continuity as a guard against improper reasoning.
[96] In light of the foregoing, the trial judge erred in law in his instruction to the jury on the count of participation in the activities of a criminal organization. In this case, the circumstances of the trial relied on by the majority of the Court of Appeal could only have been relevant, if at all, to the curative proviso. However, the Crown has not sought to rely on the curative proviso in this case, and I therefore make no further comment on its potential application.
V . Conclusion
[97] I would allow the appeal, set aside the appellant’s conviction for participation in the activities of a criminal organization, and order a new trial on that count.
R v Bruzzese, 2023 SKCA 78
[July 6, 2023] Appeals: Obligation to Give Reasons Resolving Conflicting Evidence [Reasons by Barrington-Foote J.A. with Caldwell and Leurer JJ.A. concurring]
AUTHOR’S NOTE: The one of the most frustrating experiences as a trial lawyer is spending a significant period of time in front of a judge arguing a point and then having that judge return to the courtroom to provide reasons and ignore the entire testimony and argument that was made without any reference to it whatsoever. As explained in this decision, this will often amount to a failure to provide sufficient reasons and result in a new trial. A trial judge must consider other plausible theories, whether they arise as a result of the evidence of the accused or otherwise. A failure to address conflicting versions of events is a failure to perform the function of providing reasons for a decision.
I. Overview of the appeal
[1] The appellant, Tyra Phillips, is a 35-year-old Indigenous offender.
[2] On August 15, 2021, Ms Phillips and her then boyfriend Patrick Ford were present at a hotel. Following an altercation regarding a cellphone, Ms Phillips attacked Mr Ford with a knife, stabbing him numerous times as he attempted to flee from outside to the hotel lobby. While Mr Ford managed to get the knife from Ms Phillips, she continued her attack using various decorative items from the hotel lobby. Mr Ford succumbed to his injuries shortly after emergency medical services arrived on the scene, having sustained stab wounds to his neck, torso, lower back, arms, and legs.
[3] The seriousness of this offence and the level of brutality associated with it cannot be understated and Ms Phillips, who pleaded guilty to manslaughter, makes no effort to do so.
[4] At the time of the offence, Ms Phillips was suffering from a methamphetamine-induced psychosis and feared that Mr Ford was going to kill her and her family.
[5] The sentencing judge sentenced Ms Phillips to 8 years in prison less 579 days of enhanced credit for time already served. In addition, he ordered a ten-year weapons prohibition and a mandatory DNA order pursuant to sections 109(2) and 487.051(1) of the Criminal Code, respectively.
[6] On appeal, Ms Phillips asks this court to reduce her sentence from 8 years to 3-4 years as was her original position before the sentencing judge. She states that the sentencing judge failed to assess her moral blameworthiness with respect to her difficult upbringing which led to her drug addiction and had a direct bearing on the psychosis she experienced at the time of the offence.
[7] For the reasons that follow, we allow the appeal and substitute a sentence of 5 years before allocating credit for time already served.
IV. Analysis
[17] Section 718.2(e) of the Criminal Code mandates that a sentencing judge must give specific consideration to the “circumstances of [an] Aboriginal offender[ ]” in order to ensure a sentence meets the fundamental principle of proportionality (s 718.1). In R v Gladue, [1999] 1 SCR 688, 133 CCC (3d) 385, the Supreme Court of Canada provided s 718.2(e) is aimed at addressing the serious problem of overincarceration of Indigenous people and directs judges to undertake individual sentencing assessments which recognize the unique background and systemic factors that may have played a part in bringing the offender before the court. As courts are only beginning to properly recognize, Indigenous woman are even more overrepresented in Canadian prison populations than Indigenous men, and the lifelong challenges they face with marginalization, discrimination, sexism, and victimization often continue during their time in prison: see for example, R v Bigstone, 2023 ABPC 13 at paras 56-63.
[19] The authorities in this province as to qualitative guidance, such as the categorization of manslaughter offences in Laberge, or quantitative guidance, as described in R v Parranto, 2021 SCC 46, 411 CCC (3d) 1, operate alongside and do not conflict with the guidance in Gladue. This Court has said as much in R v Laboucane, 2016 ABCA 176, 337 CCC (3d) 445, leave denied [2016] SCCA No 374 (QL) (SCC No 37177), Okimaw, R v Swampy, 2017 ABCA 134 [Swampy], and other cases. Parliament’s recognition of the experiences of Indigenous people in Canada under s 718.2(e) of the Criminal Code must not be watered down to an artificial social statement by sentencing decisions that fail to properly engage with the unique circumstances of an Indigenous offender. Consideration of Gladue factors does not escalate the principle of individual sentencing at the expense of proportionality. Rather, the proper application of Gladue principles achieves a proportionate sentence. In Swampy at para 25: .
. . the central purpose of the Gladue analysis is to achieve proportionality. The first principle that a sentence must be proportional to the gravity of the offence and degree of responsibility of the offender has “. . . long been the central tenet of the sentencing process”: Ipeelee at para 36. The “constrained circumstances of Aboriginal offenders may diminish their moral culpability”, as explained in Ipeelee at para 73. Reduced moral culpability must also affect the proportionality analysis, since moral culpability is one component of the equation. It follows that where there is reduced moral culpability, there is a consequential reductive effect upon the ultimate determination of a fit and proper sentence: Ipeelee at para 87. [Emphasis in original]
[23] While Laberge is an instructive starting point when sentencing for manslaughter, the Laberge categories do not attempt to provide an exhaustive measurement of an offender’s moral blameworthiness, nor does it suggest that an offender deserves a punishment at the high end of the sentencing range simply because the offender’s actions fall objectively within the highest category: R v Naslund, 2022 ABCA 6 at para 163, 409 C.C.C. (3d) 1; R v Shyback, 2018 ABCA 331 at para 13, 366 CCC (3d) 197; R v Campbell, 2022 ABCA 410 at para 31-33, [2022] AJ No 1544 (QL) [Campbell]. In Campbell, “the assessment of moral blameworthiness in a manslaughter case includes a consideration of both the accused’s mental state and the nature of the unlawful act. . . While there may be three rough categories of ‘unlawful acts’, that does not mean that there are three equivalent categories of manslaughter for sentencing purposes.”
[24] As this Court found in Swampy at para 21, this is where the Laberge analysis intersects with the Gladue analysis.
In sentencing, if the assessment of moral culpability at the core of the proportionality analysis is flawed by failure to consider the mitigating effect of Gladue factors on moral culpability, this amounts to an error in principle, amenable to review under the Lacasse principles. As the Supreme Court stated in Ipeelee at paragraph 87, “application of Gladue principles is required in every case involving an Aboriginal offender . . . and a failure to do so constitutes an error justifying appellate intervention.”
[25] Here, the sentencing judge said only the following as it related to the appellant’s moral blameworthiness:
In this case, Ford had been stabbed repeatedly by Phillips, then was struck by other objects, as detailed in the Agreed Statement of Facts I have read and in the CCTV of the assault recovered from the Hotel. Ford was bleeding profusely and succumbed to his injuries before his body was removed from the hotel lobby by the emergency responders. It can be concluded that Phillips knew of, or was willfully blind to the likelihood of causing these life threatening injuries. Accordingly, her culpability and moral blameworthiness is increased.
[26] There is nothing in the reasons to show that the sentencing judge went on to consider whether the appellant, an addict by virtue of a series of events undeniably connected with the effects of intergenerational and personal trauma, and who killed Mr Ford because she wrongly (though not inexplicably given her psychosis) believed she needed to do so to save herself and her family, is less blameworthy than another offender unencumbered by such motivation or life circumstances. Merely listing as a mitigating factor that the “Gladue factors cited have some connection to this offence, given the generational history of substance abuse in the family and her dislocation” was insufficient (emphasis added): Okimaw at para 64. Compounding this, the sentencing judge then isolated that same substance abuse from the background in which it arose and concluded that Ms Phillips’ untreated addiction was aggravating in the context of this offence. This was not a proper application of Gladue principles, ran afoul of the statutory duty imposed under s 718.2(e) and the fundamental principle of proportionality, and constituted an error justifying appellate intervention: Ipeelee at para 87, Okimaw at para 62.
[27] First, it must be remembered that there is no requirement for an offender to establish a causal link or “some connection” between Gladue factors and the offence committed: Ipeelee at para 81. That said, we agree with the appellant that a clear and direct connection was established on this record.
[28] Second, while the sentencing judge listed the identified Gladue factors, he failed to assess or explain how those factors informed Ms Phillips’ moral culpability. Meaningful mitigation in determining a fit and proper sentence requires more than listing the factors that are present. The sentencing judge was instead required to assess and explain how Ms Phillips’ particular Gladue factors impacted her moral culpability in the specific context of this offence. More specifically, ss 718.1 and 718.2(e) required the sentencing judge to consider and engage with the unique circumstances of this Indigenous offender to determine “the degree of [her] responsibility”.
[29] In our view, the sentencing judge misconceived Ms Phillips’ moral blameworthiness in the context of her unique Gladue circumstances. Instead of recognizing that the same mitigating “history of substance abuse” and “dislocation” was at the root of Ms Phillips’ own problems with addiction which culminated in this offence, he found the fact that she had “not sought any treatment or rehabilitation” was aggravating. The sentencing judge erred in treating the appellant’s “psychotic state resulting from prolonged use of illicit substances” as an aggravating circumstance. While an offender’s wilful indifference to the anti-social effects of their addictions may well be relevant to an offender’s degree of responsibility, ingrained helplessness is not the same thing as wilful indifference. By isolating the appellant’s addiction from the very background that one might fairly conclude made her addiction inevitable and difficult to treat, the sentencing judge overstated the appellant’s moral blameworthiness. Proportionality would necessarily have been affected.
[30] We hasten to add that any suggestion that addiction always aggravates crimes committed in drug induced mental states should be viewed critically. While this was applicable and relevant in the circumstances in R v Hamlyn, 2016 ABCA 127, 38 Alta LR (6th) 1, this Court has stated otherwise in different circumstances: R v Martineau, 2021 ABCA 401 at paras 18-19, [2021] AJ No 1632 (QL); Roberts at paras 43-46. In addition, the Supreme Court of Canada has recognized that addictions can reduce moral blameworthiness without the qualification of the offender having first sought treatment: R v Hills, 2023 SCC 2 at para 85, [2023] SCJ No 2 (QL); R v Boutilier, 2017 SCC 64 at para 123, [2017] 2 SCR 936.
[31] This endorsement makes sense on policy grounds. Circumstances bearing on whether an untreated addiction mitigates or aggravates (or is neutral) is always case specific and may include whether the offender had a real opportunity to get addiction treatment but declined it and whether the offender knew they tended to behave violently under the influence of drugs. Even then an addict’s failure to take steps to treat their addiction must also be psychologically realistic before one can characterize it as blameworthy. Sobriety is not a linear process and addictions meet real physical and psychological needs. Similarly, abstaining comes with physical and psychological costs. Moreover, the opportunity to avail oneself of treatment is not equally available to all people at all times in all geographical locations living in all environments or financial or educational circumstances.
[32] In this case, the NCR Assessment provided that the appellant sought treatment but encountered a long wait list that is all too common in mental health and addictions. This is one such example of why there can be no hard and fast rule when it comes to concluding that either an addiction or an offence that is the result of a substance-induced psychosis is an aggravating factor, particularly when both can be traced to Gladue factors bearing on an offender’s moral blameworthiness.
[33] As a result, we find that the sentencing judge erred in principle and that error had an impact on the sentence imposed on Ms Phillips. We must therefore sentence afresh.
The proportionate sentence for this offence and this offender
[36] We do not criticize the sentencing judge for categorizing this offence within the third and highest Laberge category as it related to objective fault, but the analysis cannot stop there.
[37] The appellant is a 35-year-old Indigenous offender who entered an early guilty plea to manslaughter. The NCR Assessment shows that she accepted responsibility for her crime from the outset and is remorseful. She has no prior criminal history. So how did she find herself in the throes of a methamphetamine-induced psychotic state that left her unable to appreciate that what she was doing was wrong? Her lived experience provides clear answers.
[38] The appellant was born to a mother who attended a residential school as did her mother’s mother. Her father did not attend residential schools, but his mother did.
[39]...Her father is reported to have been an abusive alcoholic who was controlling and manipulative. He continued to return to the home after he and the appellant’s mother split up and her mother had to get a restraining order against him when he became aggressive and refused to leave. The appellant also recalls a short stay with her mother in a women’s shelter.
[42] The appellant disclosed this abuse when she was in the 6th grade and living with her maternal grandparents. Eventually her abuser was “sent away” and the appellant began to distance herself from the family as she “felt responsible for breaking apart the family”. Her mental health deteriorated from this point and the appellant admitted bouts of hopelessness and suicidal thoughts...
[43] At age 10, the appellant began using cannabis which she did not enjoy initially but smoked daily by the time she was 14 years old. She experienced crystal meth, crack cocaine (crack), ecstasy, and mushrooms by the time she was 15, and became addicted to cocaine and smoking crack by the time she turned 18. Eventually, crystal meth became her substance of choice. At age 32 she started using lorazepam and meth together. She was 33 at the time of the offence.
[46] The appellant worked various short-term jobs from the age of 14 and experienced periods of unemployment. That is perhaps unsurprising since from the age of 18 onward, the appellant was regularly using cocaine, crack, crystal meth, GBH, and other substances...
[47] The appellant’s intimate relationships have also been unstable and some of them, abusive. None of them can be described as healthy or nurturing. It appears that all of them involved substance abuse of one type or another. The struggle of Ms Phillips’ grandparents and parents as will undoubtedly be passed on to her own children because of her experiences with dislocation, addiction and now incarceration, speaks volumes about the devastating consequences and seemingly endless cycle of intergenerational trauma.
[49] At the time she committed this offence, the appellant was experiencing “delusional paranoid beliefs” that “rendered her unable to appreciate the moral wrongfulness of her actions. In this paranoid mental state, she believed that the only way to protect herself and her family was to cause Mr Ford’s death.”
[50] The question we must answer is whether the appellant’s moral blameworthiness considering her disadvantaged circumstances, psychotic frame of mind at the time of the offence, and her related degree of responsibility is such that she deserves to be punished at the high end of the Laberge spectrum? In our view, she does not.
[51] It is aggravating that the appellant used a knife in committing this offence and it is statutorily aggravating that Mr Ford was her intimate partner. However, while we recognize she stabbed Mr Ford multiple times, that too must be viewed in the context of her individual circumstances. Her painful life experiences led to her addiction that eventually led to the psychotic state that caused her to fear for her life and her family and contributed the frenzied nature of the offence she committed. To the extent her mental state fueled her fear, it is difficult to conclude it is aggravating from the perspective of her moral blameworthiness.
[52] The appellant’s substance abuse, properly viewed as an inevitable outcome of her difficult background, childhood sexual trauma, and subsequent disconnection from family and healthy relationships cannot be considered aggravating. The appellant sought treatment for her drug addiction. She encountered a long wait list, a seemingly insurmountable barrier, and she moved. She continued to try and cope on her own with no stable supports and within a constantly changing, unhealthy environment.
[53]...facts making a trial unnecessary.
[54] In our view, when the appellant’s Gladue factors are accurately identified and their effects recognized, and when the aggravating and mitigating factors are reviewed through the lens of her Indigenous experience, a fit and proper sentence is 5 years before allocating credit for time served.
R v Phillips, 2023 ABCA 210
[July 6, 2023] Manslaughter Sentencing Range (Laberge) and Gladue Principles, Addiction Mitigation [Khullar C.J.A., Watson and Chrighton JJ.A.]
AUTHOR’S NOTE: Another decision from the ABCA reinforcing that sentencing judges have to pay more than lip service to Gladue principles. Application of Gladue is necessary to reach a proportional sentence. Here, the application of Gladue principles lowered a sentence from 8 years to 5 years imprisonment. The case also provides an analysis of addiction as mitigation. The Court noted that while sometimes "an offender’s wilful indifference to the anti-social effects of their addictions may well be relevant to an offender’s degree of responsibility, ingrained helplessness is not the same thing as wilful indifference". A continuing addiction should not be used against an accused except where evidence exist to suggest a known (to the accused) connection between violent offending and their substance use. The assessment has to be case specific and courts must recognize that "sobriety is not a linear process".
I. INTRODUCTION
[1] On November 19, 2021, a judge of the Court of Queen’s Bench for Saskatchewan found Alexis Murillo guilty following trial of sexual assault contrary to s. 271 of the Criminal Code. Mr. Murillo has appealed his conviction, alleging that the trial judge erred in law by providing insufficient reasons in assessing the complainant’s credibility; relying on impermissible common sense assumptions or stereotypes; and applying different standards of scrutiny to his evidence and that of the complainant.
[2] I have concluded that the first and second of these grounds of appeal have merit and would accordingly grant Mr. Murillo’s appeal....
II. BACKGROUND
[3] On the evening of September 8, 2018, the complainant, a university student from China, and Mr. Murillo, who was then 22, attended a house party hosted by Bolin Cai and Kelly Bugler. That was the first time the complainant and Mr. Murillo had met. Everyone but Mr. Cai was drinking alcohol. Sometime after midnight, Mr. Murillo, Ms. Bugler, the complainant, and another friend went to a bar, where the group continued to drink. The complainant and Mr. Murillo stayed together at the bar, while Ms. Bugler and her friend sat elsewhere. When she was asked by Ms. Bugler to join her and her friend, the complainant refused, indicating that she preferred to stay with Mr. Murillo, whom she told Ms. Bugler reminded her of her ex-boyfriend. Ms. Bugler took a photo of Mr. Murillo and the complainant together and sent it to Mr. Cai, expressing surprise.
[4] The group stayed at the bar until it closed at 3:00 a.m., when Mr. Murillo and the complainant made their way back to Ms. Bugler’s house. Mr. Murillo volunteered to walk the complainant home from there and she accepted his offer. It was her evidence that he made sexual comments more than once as they walked, stating that he would show her his penis. When they arrived at the complainant’s home, she discovered that she was locked out. They spent some time on a swing set in the back yard, talking. Mr. Murillo told the complainant he had a girlfriend with whom he would probably break up and that he wanted to hang out with the complainant. She told him she was interested in a man who lived in Edmonton. He flirted with her, jokingly asking that she marry him. He offered to book her a hotel room or that she come to his residence. She declined the hotel room and instead accepted his invitation to accompany him to his home, where he lived with his parents.
[5] Mr. Murillo and the complainant arrived at his home at approximately 5:00 a.m. She claimed that he insisted that she sleep in his bed, rather than on the couch as she had suggested. He testified that she turned down an offer to sleep in the spare bedroom, as she wanted to be with him.
[6] Mr. Murillo claimed that after some time, they went to his room, had a beer, and played a game called “truth or dare”. The complainant denied that those things had occurred. Both gave evidence that, at some point, they ended up together in the bathroom. She stated that he had entered the bathroom when she was already there and asked for a hug, and that. in response, she got on her knees to avoid him and asked him to leave. He, on the other hand, testified that they had been kissing in his room while playing truth and dare, and that she had asked to see his penis, but said he should wash it first. He claimed that he went to the bathroom to do so and that she had entered the bathroom as he was finishing. He said she had kissed him, gotten on her knees, removed his boxer shorts, and tugged his penis. He maintained that they had then returned to his room, that she resumed masturbating him while he continued to touch her sexually, and that both of them had taken their clothes off. He said that they had tried to have sex, but that he could not maintain an erection, so they went to sleep in his bed.
[7] The complainant’s evidence was that after she had rebuffed Mr. Murillo in the bathroom, she had returned to his bedroom and, after some further socializing, she went to sleep in his bed. She said he had promised he would sleep on the couch. She recalled waking up to feel him against her back, and that she then pushed him off the bed and onto the floor. She claimed that she went back to sleep, and that when she was awakened by the alarm, she had set for 8:00 a.m., he was back in the bed. She stated that she tapped on him to wake him up and asked for a cab ride home, and that, in response, he had pushed her down on the bed, flipped her onto her stomach, and removed her bottom clothes and his clothes while he held both of her hands with one of his.
[8] The complainant testified that Mr. Murillo had then inserted his fingers into her vagina and attempted to have intercourse with her but was unable to maintain an erection. She claimed that she had repeatedly told him to stop and tried to push him, but that he had nonetheless continued to do the same things. She recalled that she could not move because he was sitting on her thighs and had held both of her hands with one of his throughout the incident. She maintained that the assault went on for approximately 90 minutes and that he had finally stopped when she threw a pillow at him, when he promptly offered to call her a cab.
[11] Before Mr. Murillo took her phone, the complainant had texted Ms. Bugler, stating “I think he raped me from the time my alarm rang…until now”. Later that day, the complainant spoke to friends about what had occurred. She asked that Mr. Murillo apologize and pay her compensation, and when he refused to do so, she reported the alleged sexual assault to the police three days later....
[12] ..In his judgment, the trial judge...
....cited the four-part formulation of the W.(D.) test that was adopted by this Court in R v McKenzie (1996), 106 CCC (3d) 1 (QL) (Sask CA) at para 5, which adds a fourth step to the three specified in W.(D.), as follows:
First, if you believe the accused, obviously you must acquit;
Secondly, if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit;
Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit;
Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[13] The trial judge then assessed the evidence based on this four-part test. As to the first part, he found he could not believe Mr. Murillo because his evidence seemed to be contrived and calculated to place his actions in the best light. The trial judge reviewed Mr. Murillo’s evidence about the sexual encounter and said he did not believe it because it did not “make sense.”
[14] As to the second question, the trial judge explained that he did not believe all of Mr. Murillo’s evidence, “especially the sexual incident part” (at para 18). He referred to Ms. Bugler’s testimony that she had told Mr. Murillo before he and the complainant left her house that the complainant was not interested in him. He briefly summarized the complainant’s version of the incident. He then said that after a review of all the evidence, he believed Ms. Bugler and the complainant, but not Mr. Murillo.
[15] Dealing next with the third question, the trial judge found that Mr. Murillo’s evidence did not raise a reasonable doubt. He reiterated that Mr. Murillo’s evidence was an attempt to rationalize his actions rather than being an honest statement about what took place.
[16] Finally, the trial judge addressed the question of whether he was, based on the evidence he did accept, convinced beyond a reasonable doubt of Mr. Murillo’s guilt? He found that the complainant’s evidence was “forthright and convincing”, that she had testified in a “straightforward manner”, and that she was credible and reliable. He again briefly summarized her version of the events that had occurred in the morning, including the fact that she had texted her friend that she thought Mr. Murillo had raped her. He then summarized his conclusion as to the fourth W.(D.) question:
[23] [Mr. Murillo’s] explanation of why [the complainant] would be upset when they woke up was not credible. His explanation was that when he told [the complainant] she would have to leave because his girlfriend - was coming over, [the complainant] threatened to call 911. [Mr. Murillo] then grabbed her phone and would not give it back until he was told by his father to do so. Why this would happen is unbelievable unless events had happened the way [the complainant] described - that he had just sexually assaulted her. I find I do not believe [Mr. Murillo] and that all the other evidence does not raise a reasonable doubt as to [Mr. Murillo’s] guilt.
III. ANALYSIS
A. Did the trial judge err in law by providing insufficient reasons?
[19] Mr. Murillo also cites R v R.A., 2017 ONCA 714, 355 CCC (3d) 400 (aff'd 2018 SCC 13, [2018] 1 SCR 307, on this point. In that case, Huscroft J.A., writing for the majority, made the following observation:
[45] …[Significant] testimonial inconsistencies should be addressed because, as the Supreme Court noted in R. v Gagnon, 2006 SCC 17, [2006] 1 SCR 621, at para. 21, the accused is entitled to know “why the trial judge is left with no reasonable doubt”. However, a trial judge is not required to refer to or resolve every inconsistency raised by the defence in the course of his or her reasons: R. v R.(C.), 2010 ONCA 176, 260 OAC 52, at para. 48. …
[77] …A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness’ evidence, nor respond to every argument advanced by counsel: R. v M. (R.E.), 2008 SCC 51, [2008] 3 SCR 3, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p 356; R. v Dinardo, 2008 SCC 24, [2008] 1 SCR 788, at para 31.
[20] On a related note, Mr. Murillo submits that the trial judge was required to address the complainant’s motive to fabricate and attempt to extricate money from him in his credibility analysis. He points to the evidence that she was prideful, claimed to be very wealthy, and believed that she had been misled by Mr. Murillo, a poor man, to whom she referred as a “sweet talker”. He notes his evidence that she had gotten angry and threatened to call 911 only after he had told her to leave in the morning because his girlfriend was coming over. He suggests that she claimed she was sexually assaulted to save face. As to the complainant’s demands that he pay her money, Mr. Murillo characterizes this as attempted “extortion” – a demand for payment as the price of avoiding a false complaint.
[23] These principles were explored in R v W.D.M., 2022 SKCA 64, [2022] 9 WWR 606 [W.D.M.] by Leurer J.A., who pointed to the following authorities that demonstrate that a trial judge is required to consider a motive to fabricate where there is a basis for such a defence allegation in the evidence:
[37] In R v Ignacio, 2021 ONCA 69 at para 35, 400 CCC (3d) 343, leave to appeal to SCC refused, 2021 CanLII 58907, Pepall J.A. found that the trial judge in that case “was required to consider motive to fabricate due to the defence allegation that the complainant had a motive to fabricate” (at para 35, emphasis added). Similarly, in R v S.R., 2022 ONCA 192, the Ontario Court of Appeal stated that “[a]s in Ignacio, at para. 35, the trial judge was required to consider motive to fabricate due to the defence allegation that the complainant had a motive to fabricate” (at para 30).
[38] In R v R.P., 2020 ONCA 637, the trial judge was found to have committed several errors in assessing witness credibility, one of which was the failure to adequately address the complainant’s alleged motive to fabricate her testimony. While the trial judge had commented on the alleged motive for fabrication, the Court of Appeal determined that “the trial judge did not engage in the necessary close examination” of the evidence (at para 19). Justice Harvison Young noted:
Moreover, the motive to fabricate argument had some strength given the tensions at home, which predated the alleged incident. This called for a closer examination of the complainant’s credibility, and of the various alleged inconsistencies in the evidence, which I will review in more detail shortly. ...
[39] Justice Harvison Young went on to explain that the conflicting evidence “went directly to the complainant’s credibility and her motive to fabricate”, but this was “not addressed in the reasons”. Finally, she concluded that, “[g]iven the centrality of credibility in this case, these issues required greater scrutiny” (at para 20).
[40] In R v Swain, 2021 BCCA 207 at para 28, 406 CCC (3d) 39, Voith J.A. noted that the existence of proof that a complainant had a motive to fabricate an allegation “may substantially challenge the credibility of the complainant, which may be capable of raising a reasonable doubt”.
[41] Finally, on this issue, I would mention R v JOL, 2020 ABCA 73 (Alta CA), 7 Alta LR (7th) 180. This case again illustrates the need for a trier of fact to consider motive to fabricate when there is evidence supporting its existence. In that case, the Alberta Court of Appeal found that the trial judge had erred in failing to provide a specific instruction about this issue:
[52] We agree the trial judge erred in refusing defence counsel’s request to provide a specific instruction regarding motive to fabricate. While not determinative, the existence of a motive to fabricate is relevant to assessing credibility: R v CEK, 2020 ABCA 2 at para 26; R v Zapeda, 2018 ABCA 425 at para 10; R v Batte, 145 CCC (3d) 449 (Ont CA) at paras 119–121. This applies to all matters, including sexual assault trials.
[24] R v Esquivel-Benitez, 2020 ONCA 160, 61 CR (7th) 326, is also of interest here. In that case, the complainant’s husband, having learned that his wife had intercourse with the appellant, had repeatedly questioned her as to whether the appellant had abused her. She finally claimed that he had done so, but only after repeated entreaties by her husband. The trial judge dismissed this evidence as irrelevant, characterizing it as “part of an ongoing myth regarding sexual consent”. In a per curiam decision, the Ontario Court of Appeal explained why this reasoning constituted error, commenting as follows:
[13] This was an error. Undoubtedly it was open to the trial judge to accept the complainant’s evidence that she did not consent to sexual activity and that her response to her husband’s questioning was due to a myriad of factors that had nothing to do with fabrication. However, in the circumstances of this case, the trial judge was also obliged to consider whether the events gave rise to a motive to fabricate and, if so, how that reflected on her assessment of the complainant’s credibility.
[14] A motive to fabricate can be an important factor that is germane to a witness’s credibility: R. v Batte (2000), 145 CCC (3d) 449 (Ont CA), at para 120.
[15] Here, it was incumbent on the trial judge to consider the evidence that was both consistent and inconsistent with consent, which was the central issue at trial. …
[25] In her case comment on this decision, Professor Lisa Dufraimont notes that R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, requires that where a case turns on circumstantial evidence, “the criminal standard of proof beyond a reasonable doubt requires triers of fact to consider ‘other plausible theories’ and ‘other reasonable possibilities’ which are inconsistent with guilt”. She then offers the following insightful observation:
[15] The same holds true even in sexual assault cases where the Crown relies on the direct evidence of the complainant; the trier of fact must still consider whether the evidence as a whole, including circumstantial evidence relied on by the defence, raises a plausible theory of innocence. As the Court of Appeal put it in Esquivel-Benitez, “it was incumbent on the trial judge to consider the evidence that was both consistent and inconsistent with consent”.
[26] I agree. To be clear, this does not mean the Villaroman test applies where proof of an essential element of the offence does not turn wholly or substantially on circumstantial evidence. The Crown need not demonstrate that a finding of guilt is the only reasonable possibility in such a case. However, the trier of fact must consider other plausible theories, whether they arise as a result of the evidence of the accused or otherwise.
[30] The question here, accordingly, is whether the reasons of the trial judge, read in the proper manner, pass that functional test, despite having failed to address these inconsistencies. In my respectful opinion, they do not. The evidence of conflicting versions as to how the sexual assaults occurred was important in and of itself, as it related to the alleged assault. The credibility of the complainant was very much a live issue at trial; indeed, it was central to Mr. Murillo’s defence. Despite this, and as in W.D.M., the trial judge did not simply fail to reconcile the evidence of conflicting reports by the complainant as to how the sexual assault occurred. He did not refer at all to any of this evidence. The same is true of the evidence that could have been found to support Mr. Murillo’s contention that the complainant was motivated by a desire to save face and to get money from him, as she claimed to have been encouraged to do by her landlord.
[31] As the Crown correctly notes, it was open to the trial judge to find that there were innocent explanations for the conflicting reports of the assault attributed to the complainant – assuming he found there was such a conflict to begin with – and for the complainant’s demands for an apology and compensation. However, this possibility does not justify the failure to advert to this evidence or to these issues in the reasons. Reasons must always serve their purpose, and these reasons did not do so given the issues, evidence, and arguments in this case. As Nordheimer J.A. said in R v C.G., 2021 ONCA 809, 407 CCC (3d) 552, “[w]hile…a trial judge is not required to address each and every piece of evidence, a trial judge is required to address crucial evidence that bears directly on the credibility and reliability of a witness” (at para 42). This was such evidence.
[32] In the result, I have concluded that the trial judge erred in law by failing to address the conflicting evidence and the complainant’s motive to fabricate and that the appeal should be allowed for that reason. In doing so, I echo the following comments by Leurer J.A. in W.D.M.:
[58] …[I]n R.E.M. and G.F., the Supreme Court has communicated its deep concern that safe convictions, particularly in matters involving sexual offences, are being overturned not for legal error “but on the basis of parsing imperfect or summary expression on the part of the trial judge” (G.F. at para 76). However, I do not interpret either decision to be a call to shield insufficient reasons and potentially dangerous convictions from appropriate appellate scrutiny. Rather, I agree with Nordheimer J.A. when he stated, with specific reference to G.F., that it “does not direct appeal courts to overlook or disregard material reasoning errors, nor does it dispense with the need for trial judges to give adequate reasons for their decisions before stigmatizing and punishing someone” as guilty of a criminal offence (C.G. at para 56).
[33]....in R v M.J., 2022 SKCA 106, where , having referred to the Supreme Court of Canada’s repeated direction that “an appellate court should not ‘parse’ the reasons of the trial judge, and to the presumption of correct application — that is, that a judge is presumed to know and apply the law…[and] that a trial judge need not refer to all of the evidence, or indeed, to every frailty in the evidence” (at para 28), this Court said this:
[30] …[T]he principles emphasized by the Crown should not be interpreted in a manner that precludes effective appellate review and the careful consideration of the reasons. The reasons, read in the context of the evidence, the issues and the arguments at trial, are all an appellate court has to determine if an accused has been found guilty in accordance with the law. Appellate courts should not uphold judgments that disclose material errors that have resulted in an unreasonable verdict or a miscarriage of justice, simply because there was a correct route that could have been taken to achieve that result.
B. Did the trial judge err in law by relying on impermissible common sense assumptions or stereotypes?
[35] The legal principles engaged by this ground of appeal were usefully unpacked by Paciocco J.A. in R v JC, 2021 ONCA 131, 401 CCC (3d) 433, at paras 58–70. He there identifies two rules relating to prohibited reasoning as to the plausibility of human behaviour, as follows:
[58] The first such rule is that judges must avoid speculative reasoning that invokes “common-sense” assumptions that are not grounded in the evidence or appropriately supported by judicial notice: R v Roth, 2020 BCCA 240, at para. 65; R v Cepic, 2019 ONCA 541, 376 CCC (3d) 286, at paras. 19-27; R v Perkins, 2007 ONCA 585, 223 CCC (3d) 289, at paras. 35-36. For clarity, I will call this “the rule against ungrounded common-sense assumptions”.
[59] To be clear, there is no bar on relying upon common-sense or human experience to identify inferences that arise from the evidence. Were that the case, circumstantial evidence would not be admissible since, by definition, the relevance of circumstantial evidence depends upon using human experience as a bridge between the evidence and the inference drawn.
[63] The second relevant, overlapping rule is that factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour. I will call this “the rule against stereotypical inferences”. Pursuant to this rule,it is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act to either bolster or compromise their credibility: Roth, at para. 129; R v A.B.A., 2019 ONCA 124, 145 OR (3d) 634, at para 5; Cepic, at para 14. It is equally wrong to draw inferences from stereotypes about the way accused persons are expected to act: R v Quartey, 2018 ABCA 12, 430 DLR (4th) 381, at para. 21, aff'd 2018 SCC 59, [2018] 3 SCR 687; and see Cepic, at para 24.
[36] This reasoning has been frequently applied by appellate courts: see, for example: R v M.J., 2022 SKCA 106 at para 39; R v Adebogun, 2021 SKCA 136 at paras 23–29, [2022] 1 WWR 187; R v Pastro, 2021 BCCA 149 at paras 40–43; R v D.C., 2023 NSCA 20 at para 56; R v Al-Rawi, 2021 NSCA 86 at paras 67–68; R v Mazhari-Ravesh, 2022 MBCA 63 at para 114; and Caron c R, 2022 QCCA 1550 at para 30.
[37] In my respectful opinion, the trial judge erred by invoking common sense assumptions not grounded in the evidence that could not have been the subject of judicial notice and by relying on stereotypical inferences about human behaviour. That is demonstrated by the following reasoning:
[17] … [Mr. Murillo] says that he and [the complainant] arrived at his house at approximately 5:00 a.m. on September 9, 2018, after walking from [Mr. Cai] and [Ms. Bugler’s] house to [the complainant’s] place, and then on to his house. Once at his house, [Mr. Murillo] says that he and [the complainant] talked and then started to play “truth or dare”. This makes no sense when you consider that it was at least 5:00 a.m. and they had walked all the way from [Ms. Bugler’s] house in the cold. [Mr. Murillo] says that [the complainant] asked him about the size of his penis. He told her that she could find out by seeing it herself. He says that [the complainant] then said he would have to rinse his penis off. Why would he have to rinse his penis off in order for her to see it?... (Emphasis added)
[38] There is no doubt but that two young people, having spent the evening together socializing and drinking, might continue their evening by playing a game. That is so despite that they had walked home, that it was cold when they did so, and that it was 5:00 a.m. That would be true even if the complainant had not yet decided that she was or might be willing to engage in sexual activity, but only to continue talking. Similarly, the answer to the trial judge’s question as to why the complainant would ask Mr. Murillo to wash himself is readily apparent if, as he claimed, she intended to join him in the bathroom and initiate sexual activity in the manner he described. It is plausible and accords with human experience that a person might make such a request in those circumstances. Indeed, and with respect, the notion that events could not have unfolded in the manner described by Mr. Murillo appears to be rooted in a stereotypical assumption that a woman would not initiate sex in this way.
IV. CONCLUSION
[42] For these reasons, I would set aside the conviction and order a new trial.
