The Defence Toolkit – July 29, 2023: “The Right to be a Nuissance”

Introduction

[1] Mr. Louie faces serious drug charges along with a gun charge arising from evidence that was seized during a police search of his home. Mr. Louie has filed a Charter application to exclude this evidence for various breaches of his rights under s 8 of the Charter. Specifically, he argues that there have been three breaches:

1. The police seized CCTV video from the residential complex where Mr. Louie lives without a warrant;
2. The Information to Obtain the search warrant for Mr. Louie’s residence was insufficient; and
3. It was unreasonable to monitor, record, and disclose Mr. Louie using the toilet in the RCMP holding cell after his arrest.

[2] Mr. Louie’s Charter application was heard in two parts. On October 2 and 3, 2022, I heard evidence and argument with respect to the first two breaches of s 8. Subsequently, on November 2, 2022, I gave an oral decision, in which I found breaches in both cases. For context, that decision is appended to this decision as Appendix 1. To summarize the previous findings, I found the ITO was insufficient to justify the search warrant for Mr. Louie’s residence. It was unreasonable for police to rely on a search warrant that falls unacceptably short of minimum constitutional standards to enter a private dwelling. The search warrant was based upon 2 confidential informants of largely unknow reliability, who provided mere conclusionary information of little or no probative value. As such, the police conducted a warrantless search of Mr. Louie’s residence and, doing so, breached his s 8 rights. Further, I found Mr. Louie had a reasonable expectation of privacy in the CCTV footage of the entry to the residential complex where he lived, given all of the circumstances of that search and seizure. As a result, the police seizure of the video footage without a warrant constituted a further breach of his s 8 rights.

[3] Subsequently on March 8 and 9, 2023, I heard evidence and argument with respect the third alleged breach of s 8, which deals with the video recording of Mr. Louie while he was using the toilet at the St. Albert RCMP holding cell after he was arrested.

[5] For the reasons that follow, I find Mr. Louie had a reasonable expectation of privacy in the RCMP footage of him using the toilet in the holding cell and, as a result, his s 8 rights were breached.

[6] The contest between who should raise the availability and the option of using a privacy screen is no contest at all. The state, which is in charge of its jail cells and procedures at the detachments, including knowledge of the existence of privacy screens and their availability, is in a superior position to a detainee whose movements are restricted and who is suffering a deprivation of liberty at the hands of the state, and who has no knowledge of procedures or mechanisms which might be available. The proper balance is to put the onus on the state to properly inform the detainee of the availability of the privacy screen.

Conclusion

[36] …As such, in the circumstances of this case, Mr. Louie’s s 8 rights were breached when he was videotaped using the toilet in the holding cell after he was arrested without being informed of the existence of a privacy screen and without being given a choice of whether to use it.

Section 24(2): Exclusion of Evidence

Seriousness of the State Conduct

[49] Starting with the misleading ITO and the resulting warrant, I acknowledge that there is no evidence the search of Mr. Louie’s home was conducted in an unreasonable manner. However, I agree with the Defence that the misleading ITO was very serious state misconduct. Although there was no sign of bad faith, Cst. Fox was at the very least significantly careless. She was sloppy in the language she used, she presented her opinion about the dropped baggy as objective fact, and she relied on two tips with relatively little evidentiary value. I agree with the holding of Moreau J, as she then was, in R v Uppal, 2017 ABQB 373 at para 69: it is serious misconduct to leave a misleading impression with an authorizing justice about the strength of the grounds for a warrant (see also R v Morelli, 2010 SCC 8 at paras 100-103; R v Gilmour, 2017 ABQB 735 at paras 75-76).

[50] The ITO here was drafted in a manner that was misleading on several points, most particularly presenting as fact that the police observed drugs falling from the accused’ s person when that was merely an opinion. Moreover, this opinion itself was obtained from the review of a video seized by the police without warrant, which I will address next.

[51] With respect to the CCTV footage, I accept that the law was not fully settled on whether Cst. Fox required a warrant to obtain the footage. At the same time, the law was clear that a warrant could be required to obtain the CCTV footage depending on the precise factual circumstances. In R v Truong, 2021 ABQB 34 at para 60, Devlin J helpfully summarized the state of the law at the time:

There is, for instance, a growing consensus that residents of multi-unit buildings often have a low but extant expectation of privacy in restricted-access common areas: Yu at paras 81–94; White at para 48; Sandhu, at paras 37–48. The existence and extent of this privacy expectation will vary with, and fall to be determined by, the specific factual circumstances in each case. As Antonio, J succinctly described in Sandhu at para 32:

...this explains why the precedents on hallway cameras have led to varied results on standing: each presents a unique combination of circumstances that influence the privacy analysis. The precedents are helpful in understanding what features have held significance to different courts at different times.

[52] In the specific context of taking CCTV footage from a multi-resident complex, Devlin J explained:

Between these poles, there remains an unresolved question as to whether police may request and take possession of a building’s own, non-covert CCTV footage of hallway spaces through the consent of condominium boards or building management. Trial courts in British Colombia have recently held that such consent does not obviate the residents’ privacy interests: Kim at para 41, Latimer at para 190. The decision of the British Colombia Court of Appeal in Wilson upheld the opposite conclusion.

(Truong at para 63)

[53] At the time, the case law was similarly unclear on whether a warrant was required to obtain CCTV footage of shared parking facilities at a multi-resident complex: see R v Yu, 2019 ONCA 942; R v Latimer, 2020 BCSC 488; R v Kim, 2020 BCSC 1075.

[54] Given the state of the law, Cst. Fox should have been aware that a warrant might be required for the CCTV footage. However, on her evidence, she never turned her mind to this issue, despite the fact that she is an experienced officer who was in the process of gathering evidence in support of an ITO for the purposes of obtaining a warrant. Instead, she pursued the footage in order to conduct a full sweep of the details of Mr. Louie’s comings and goings and all the information she could obtain about him, including core biographical information about his identity. It was her intent to capture as much of Mr. Louis’s intimate details as she could, including his facial features, who he interacted with, and his comings and goings. What was seized, without judicial oversight and reasonable limitations was broad and sweeping: 2 full days of video recordings capturing every individual who entered into the complex.

[55] Following argument, Crown Counsel submitted the case of R v Nguyen, 2023 ONCA 367 for consideration. That case (at paragraph 18) confirms, like all the other cases in this area, that a contextual approach is required in determining whether there is a Charter breach. The information sought and revealed in that case was minimal - police simply wanted to know which suite inside the complex the suspect entered, and his privacy interest was minimal, as he did not even live at the complex.

[56] In contrast, Mr. Louie had heightened privacy interest as he was entering his home and the information sought here, which according to the officer, was everything about him—his identity, his facial features, who he consorted with - went directly to his biographical core. Moreover, the video was not merely viewed, as in Nguyen, but seized, and the seizure itself was overbroad. Finally, the error in that case had a “cascading effect” on the analysis, leading to the exclusion of evidence. Here, the warrantless seizure of the video was yet another factor in an already insufficient warrant.

[57] In these circumstances, Cst. Fox ought to have been aware that a warrant could be required, but she never turned her mind to the issue. In the words of Antonio J (as she then was) in R v Sandhu, 2018 ABQB 112 at para 56: “[a]t best, this is tantamount to negligence or wilful blindness”.

[58] Finally, I find that the state conduct in recording Mr. Louie in the RCMP cell block was serious…

[63] Taken together, the conduct of the state was serious and weighs in favour of exclusion of the evidence obtained at Mr. Louie’s residence.

Impact on Charter-Protected Interests

[66] I agree with both sides that Mr. Louie’s privacy interest in his home was very significant: see R v Stairs, 2022 SCC 11 at para 119. As such, the warrantless search of his residence had a significant impact on his Charter-protected interests.

[67] With respect to the CCTV footage, I agree with the Crown that Mr. Louie had a reduced expectation of privacy in the parking lot and the entryway to his residential complex. However, Cst. Fox’s intent to capture as much of Mr. Louie’s intimate details as she could, including his facial features, who he interacted with, and his comings and goings, makes the seizure more serious. The seizure was also overly broad: 2 days of video recordings that captured every individual who entered the complex, making the impact on Charter-protected privacy interests more serious.

[69] While alone, the monitoring, recording, and dissemination of the video recordings of Mr. Louie’s private use of the toilet may not result in exclusion of evidence found at his home, it is an added factor to consider along with the other breaches. In R v Quilop, 2017 ABCA 70 at para 43, the Alberta Court of Appeal emphasized that the Court should consider the seriousness of the infringement of a Charter-protected interest from the perspective of not just the accused’s interest, but the interest of all citizens. Taken in this light, the impact of the s 8 breaches on Mr. Louie’s Charter-protected interests weighs in favour of exclusion of the evidence.

Conclusion

[73] Society has a significant interest in the prosecution of crimes involving drugs and firearms. However, at the same time, society must also be protected from the unbridled exercise of power by the police. Respect for the administration of justice is enhanced when police work is done properly. In this case, the police consistently ignored Mr. Louie’s s 8 rights, and there is a pattern of misconduct. In my view, the misleading ITO is particularly concerning: sloppy, careless, and mischaracterized evidence was put forth in an ex parte application, when full and frank evidence is absolutely necessary for judicial officers to carry out their constitutionally bestowed gatekeeping role. This unwarranted invasion of Mr. Louie's privacy continued after he was taken into custody and placed in the St. Albert holding cells, where sufficient privacy measures were available but not implemented.

[74] In all, the breaches show a continued carelessness towards Mr. Louie’s privacy interests. Although society has an interest in the adjudication on the merits, the police cannot be allowed to casually violate Charter rights while carrying out their investigations. In R v Harrison, 2009 SCC 34, a companion case to Grant, the Supreme Court excluded 35 kg of cocaine due to serious misconduct by the police. Moreover, the case law is clear that where the first two lines of inquiry favour exclusion, the third will rarely tip the scale in favour of admissibility: R v Lafrance, 2022 SCC 32 at para 90; R v Badu, 2022 ABCA 267 at para 83. Balancing all three lines of inquiry, I find that the evidence located at Mr. Louie’s home should be excluded.

Appendix 1

R v Louie
Oral Decision - Delivered November 2, 2022

[1] This matter came before the court by way of a pre-trial application by Mr. Louie alleging breaches of his section 8 Charter rights.

[3] The ITO contained the following salient pieces of information:

1. In 2021, an “anonymous “ tip was received from a confidential informant (“CI”) of unknown reliability indicating that Louie was in possession of drugs and firearms. On February 11, 2022 the Crown disclosed to the Defence that the use of the word “anonymous”, in the ITO was inaccurate. The CI was in fact known to police. Regardless, this dated conclusionary information has a near zero value in the analysis about whether Cst. Fox had reasonable and probable grounds to obtain the warrant to search the home of Mr. Louie.

2. Next on May 25, 2021, Cst. Fox conducted police base data searches. From those searches, she learnt:

a. Louie has a criminal record with six drug-related convictions;

b. Of the six drug-related convictions, two were for trafficking controlled substances contrary to s. 5(1) of the Controlled Drugs and Substances Act (the “CDSA”) and one was for possessing a controlled substance for the purposes of trafficking contrary to s. 5(2) of the CDSA;

3. On May 26, 2023, Cst. Fox:

i. spoke to an employee of the Villas housing complex; the property in question was leased to Terry Collins.

ii. also spoke to his Parole Officer and learnt that:

a)  Louie lives at the address with Collins; and

b)  Police were at Mr. Louie’s home May 25. No drugs found on that occasion (that is of some significance in those 3 weeks prior to the search warrant application, police had a dry run as it were and found that no drugs were on the premises).

iv. Finally, during surveillance that same day – Louie was observed to exit a cab in the company of 2 females and enter the Villas complex.

4. Cst. Fox seized CCTV footage for May 25 and 26 and searched it for more evidence.

[4] When Cst. Fox viewed the May 25 footage, she observed that it captured Louie entering and exiting Lobby at 2:05pm, and from another angle, Louie getting into taxi. Then at 3:04pm returning and entering the Villas residence (at least 27 other people were captured and depicted in the 144 min of video taken from 4 different locations).

[5] When Cst. Fox viewed May 26 footage consisting of 4 x 30 min videos from the same 4 viewpoints; she noted one of videos captured Louie walking around the back of a taxi where he drops a small plastic baggie containing a white colored substance on the ground. He then picks it up and goes into his residence with 2 unknown females.

[6] This observation, if lawfully obtained, is really the crux of the case…..

2. On June 1, 2021, Cst. Fox received a tip from a second source, who provided true and reliable information in the past on one previous occasion. This second source had provided information that was used to draft an ITO and it had been proven to be true. This CI stated:

Hung runs dope and girls

Hung has guns
Hung is an Asian guy 30-35

Hung lives in St Albert

The reliability is certainly better than the first tip, but still limited by one previous tip. Again, the salient portions are conclusionary statements without any temporal connection. This has some, but limited weight. Beyond being one more link to identifying the accused, the bald statements, without any particulars are of limited, if any evidentiary value.

[7] It is on that basis of that information, Cst. Fox obtained a search warrant to enter the home of Mr. Louie.

[8] The Defence challenges the issuance of the search warrant and bears the onus of showing that the search warrant ought not to have been granted.

Analysis of the ITO

1. First Tip

[9] Cst. Fox inaccurately describes the first source as anonymous. The Crown has argued that this was a drafting error, but this description occurs on 3 separate occasions in the ITO despite the fact that source was known to police.

[11] Whether or not the CI was known to police, the tip provided a mere conclusionary statement from a source of unknown reliability that Mr. Louie was in possession of drugs and weapons.

[13] Paragraph 26(a) Cst. Fox deposes that the information received from this CI was that Mr. Louie was “trafficking” drugs when the information received was actually that Mr. Louie was only in possession.

[14] By the agreement of counsel, the word “anonymous” was excised from the ITO, and the word “possession” was substituted for “trafficking”.

[15] Even with the amplifications, the first tip has a near zero value given its conclusionary nature, unspecified in time.

2. Second Tip

[16] The second tip doesn’t move the needle much further:

On June 1st 2021, Cst. Fox was provided with confidential source information that:

“Hung” was selling drugs and has guns.

“Hung” is an Asian male aged 30-35

“Hung” lives in St. Albert

The information was obtained in May 2021.

The confidential source was used once before in judicial authorization and was proven to be accurate.

The confidential source has a criminal record.

[17] Applying the Debot factors to the second tip here it appears credible but the CI's track record is limited to one previous occurrence; the CI’s criminal record is unspecified; while that is fairly normal, what is troubling is that crimes of dishonesty are not excluded as they often are and so the reviewing Justice is entitled to assume the worst about the record. The tip is corroborated in some respects, (but the corroboration relates to the identification of Mr. Louie). Again, it is largely conclusionary on salient points; it is not particularly compelling.

[19] Caissey must be read in its context – The CI was actually inside the apt for which a search warrant was being sought (which is a rarity) and was inside those premises within 72 hours of the issuance of the search warrant. While inside, the CI observed a large quantity of marijuana. The CI also knew the roommate’s name and could describe the interior of the apartment . The affiant police officer in Caissey deposed that all of the information was confirmed, which of course could not true. It would be impossible for police themselves to confirm the presence of drugs in the residence. In that case the Affiant misspoke, and the police could not be held to such an unreasonable standard that would require them to confirm the actual presence of drugs. It is because the CI information contained firsthand observations with such a specific degree of detail which was contemporaneously connected that it was so compelling in the Caissey case.

[20] It is different here, where the CI, with a possible criminal record for dishonesty provided a conclusory statement, which may well have emerged from layers of hearsay.

Guns

[21] While both tips mention guns, Cst. Fox never indicates that she has reasonable and probable grounds that guns would be located. The search warrant explicitly was a search for drugs ….

[22] The third concern with respect to the search warrant is Cst. Fox’s description under oath in her Affidavit of “bag drop” captured by the CCTV on May 26th.

[25] Finally, under the heading “Search Warrant Justification” at paragraph 26 (e) she deposes:

e. Cst. Fox observed on video surveillance Louie dropping and picking up approximately a 1/8 ounce baggie of cocaine.

[26] When this is juxtaposed with 26 (f), it leaves a distinct impression that Cst. Fox conclusively saw cocaine:

f. Police observed what is believed to be a drug transaction after Louie departed his apartment complex.

[27] To summarize, Cst. Fox deposes twice in the more detailed portion of her affidavit , that it was a 1/8-ounce baggie of cocaine that she saw drop from pocket of the accused and that he picked up the cocaine

[28] Using the language she did, Cst. Fox did not make it clear that this was only her belief . In fact, to make matters worse, she did not put her belief in brackets as she said she would when she was only stating her belief (as promised in paragraph 11 of her affidavit).

[29]  As this item was never recovered, it could not be examined nor tested.

[30]  I agree that it might be what Cst. Fox says it is, but to conclusively say it is – is a troubling overreach – and that observation is the most cogent evidence here.

[32] In any event, Defence has raised the issue of whether the seizure of the CCTV was constitutionally permissible or whether it is contrary to s. 8 Charter.

[33] I now turn to the CCTV seizure - going chronologically, I will then return to the remaining incident on June 15th.

[34] For there to be a breach of s.8, Mr. Louie must demonstrate that he had a reasonable expectation of privacy.

[35] There is no settled or binding rule of law establishing a reasonable expectation of privacy in all indoor common areas of multi-dwelling buildings. As Antonio J. (as she then was) commented in R v Sandhu:

There is no catalogue of techniques that engage a reasonable expectation of privacy: Tessling at para 19. Each case requires a principled application of the privacy factors. The same applies to covert cameras in condominium hallways: R v White, 2015 ONCA 508 at paras 44-48. This explains why the precedents on hallway cameras have led to varied results on standing: each presents a unique combination of circumstances that influence the privacy analysis. The precedents are helpful in understanding what features have held significance to different courts at different times.

[36] Given the paucity of authorities, Justice Antonio grounded her analysis in first principles, as I will as well.

[37] More recently, Devlin J. summarized the state of the law in R v Truong, 2021 ABQB 34 and noted that courts have had no objection to police entering multi-dwelling buildings with the consent of boards or management for investigative purposes. On the other hand, Charter breaches have arisen where police entered such buildings and installed covert cameras without judicial authorization. The specific question at issue in this case is unsettled:

37 Between these poles, there remains an unresolved question as to whether police may request and take possession of a building’s own, non-covert CCTV footage of hallway spaces through the consent of condominium boards or building management. Trial courts in British Colombia have recently held that such consent does not obviate the residents’ privacy interests: Kim at para 41, Latimer at para 190. The decision of the British Colombia Court of Appeal in Wilson upheld the opposite conclusion. There is no binding authority on point[...].

[38] Given that the law requires a fact-specific analysis, this Court must apply the principled framework established by the SCC in Tessling regarding the assessment of a reasonable expectation of privacy. Existence of a reasonable expectation of privacy is determined on the totality of the circumstances, considering four broad headings:

a) What was the subject matter of the alleged search or seizure?

b) Did the claimant have a direct interest in the subject matter?

c) Did the claimant have a subjective expectation of privacy in the subject matter?

d) If so, was the claimant’s subjective expectation of privacy objectively reasonable?

a) What was the subject matter of the search or seizure?

[39] While the subject matter of the seizure may be seen benignly as a recording of areas frequented by the public simply observing the comings and goings, it has another highly invasive aspect as well. Cst. Fox testified she seized the CCTV because she wanted “to gather everything she could”. That included Mr. Louie’s physical features, clothing, identify who he was with and what he was doing.

[40] The focus of the police in R v Sandhu, 2018 ABQB 112 in using a hallway camera was to monitor people coming and going from certain apartments. This was found by JA to be invasive going to the subject’s biographical core. Similarly, I find that the subject matter of the recording here goes to the biographical core of who Mr. Louie is as a person.

b) Did the claimant have a direct interest in the subject matter?

[41] The video was used to capture intimate details of Mr. Louie’s persona – facial features, and also his habits and who he consorts with. Again, while these are innocuously and momentarily observed in public, there is no automatic consent or default to consent to allow recording, much less use of that recorded personal information for criminal investigative purposes just because someone steps out of the home.

[42] I find that Mr. Louie has a direct I in the subject matter of the recording even though he does not have exclusive control over the area recorded, his privacy rights are not extinguished because there is a public aspect to it.

c) Did claimant have a subjective expectation of privacy?

[45]  As noted by J. Antonio in Sandhu, the Court may draw a reasonable inference regarding an individual’s expectation of privacy.

[46] Most complexes of this type shield their tenants’ privacy by not including their names on the building’s directory, but only numbers, and numbers might not even be the suite numbers. It is a reasonable inference here that there was no identifying information about building’s tenants because Cst. Fox had to inquire of the parole officer as to the particular suite of Mr. L (alternatively it was taken from a police data base).

[47] Certainly, tenants give up some privacy to their landlord for a limited purpose, but not under the assumption that the landlord will use it or allow the state to use it for penal purposes.

[48] Indeed the Ontario Court of Appeal in R v White, 2015 ONCA 508, held that although the accused did not have absolute control over access to the building, it was reasonable for him to expect that the building's security system would operate to exclude strangers, including the police, from entering the common areas without permission or invitation and investigating at their leisure.

[49] I conclude that the Villas complex employs CCTV as a shield to safeguard their property, not as a sword to defeats its tenants’ privacy. Their use of cameras does not give police carte blanche to seize and then harvest the CCTV by combing through it without prior judicial authorization.

d. Was the claimant’s subjective expectation of privacy objectively reasonable?

[50] Even if he held such an expectation, it would not be objectively reasonable. The informational content of these videos only reflects arrivals and departures between the lobby and the outdoor parking lot. The videos inside the lobby provide no more information than could have been obtained from the publicly accessible areas outside the Villas. Louie is recorded for no more than 5 seconds in total. It would have been impossible to capture intimate information of Louie’s lifestyle or information of a biographical nature. There is nothing private in a person coming and going from their home.

[51]  People do have the right to be left alone.

[52]  Homes aren’t bunkers.

[53]  People must go out into the world in order to survive – groceries, medical attention or exercise rights (voting) and when people do go out into the world, it should be able to be in confidence that they are not being monitored and that their every move is recorded. People must be able to connect to the world without the fear of surveillance.

[54] As Justice LaForrest said in R v Wong, [1990] 3 SCR 36, (that case involved police recording); as opposed to the police use of a recording comments are apt:

...there is an important difference between the risk that our activities may be observed by other persons, and the risk that agents of the state, in the absence of prior authorization, will permanently record those activities on videotape... To fail to recognize this distinction is to blind oneself to the fact that the threat to privacy inherent in subjecting ourselves to the ordinary observations of others pales by comparison with the threat to privacy posed by allowing the state to make permanent electronic records of our words or activities. It is thus an important factor in considering whether there has been a breach of a reasonable expectation of privacy in given circumstances.

[55] The Crown has argued that this case is similar to R v Yu, 2019 ONCA 942. The case before me is much different than the Yu case where the Ontario Court of Appeal held that police could enter the visitor’s area of a garage to determine whether the target’s vehicle was parked there or not. There is a certainly less privacy in surveilling a mode of transportation to determine the likely presence of a target at a location as compared to seizing a recording of the actual target which is the case here.

[56] I find that this case is more like White, where police walked through the hallways, listened at the accused's door, observed the comings and goings at the accused's unit, and viewed the accused's storage locker in the common storage area. The results of these observations were included in the information used to obtain a search warrant for the accused's unit and were excised as having violated the accused’s rights.

[57] Returning to the facts before me, Mr. Louie has a reasonable expectation of privacy in his home and the common areas of his residency that he shares with others who reside in the complex, who would reasonably have a similar expectation of privacy.

[58] Cst. Fox’s justification that the CCTV cameras simply captured public areas belies the intent behind the seizure which was not one of passive public observation but of possible penal intrusion into the private life of Mr. L. [PJM Emphasis]

Conclusion on CCTV Seizure

[59] In conclusion, the CCTV evidence, seized and then searched without prior judicial authorization is to be excised from the ITO pursuant to R v Love, 2022 ABCA 269 commencing at paragraph 47.

[63] If I am wrong in excising the CCTV evidence, I find that, even with it, there are insufficient grounds for the search warrant to issue.

Conclusion

[64] In conclusion, the issuing Justice of the Peace relied upon mischaracterized, misleading evidence and in the case of the CCTV observations, constitutionally impermissible evidence.

[65] The information contained in the ITO with the consented to amplifications and the excision was insufficient for the issuance of the search warrant.

[66] In so finding, I recognize that a review of a search warrant is not the same as granting or refusing the issuance in the first place. I cannot substitute my decision for that of the Justice of the Peace. The standard of review is whether reasonable and probable grounds established on oath exist to believe that an offence has been committed and that there is evidence to be found at the place of the search.

[67] In the totality of the circumstances, the issuance of the search warrant was not reasonable. Accordingly, it is quashed.

BRAMWELL, J.

OVERVIEW

[1]  The appellant was charged with six counts of sexual assault, five counts of touching for a sexual purpose a person between the ages of 16 and 18 years over whom he had a position of trust or authority (sexual exploitation) and two counts of simple assault.

[2]  The appellant was a teacher, and the seven female complainants were grade eleven and twelve students in his classes. The incidents giving rise to the charges allegedly occurred at the school from September 2017 through December 2018. The evidence led at trial consisted of the seven complainants and eighteen witnesses. The witnesses were teachers, the vice principal, the principal, fathers of two of the complainants, a co-worker of one of the complainants, and classmates and/or friends of at least one of the complainants.

[3]  The complainants and witnesses were cross-examined on their interaction with each other prior to the reporting of one complainant’s concerns to the principal and the later reporting of that same complainant’s concerns, by a co-worker, to the Children’s Aid Society (C.A.S.) and the police. An agreed statement of facts was filed relating to a conversation between at least two of the complainants, while they were gathered with a larger group of girls, that was overheard by the mother of one of the complainants.

[4]  The evidence was heard over 7 days. At the conclusion of its case, the Crown applied for, and the appellant opposed the admission of evidence relating to the allegations of each complainant as similar fact evidence in support of evidence in relation to the allegations of the other complainants. The trial judge dismissed the similar fact application shortly after submissions in part due to what he found was the very real possibility that there had been contamination of the witnesses’ accounts because of the many discussions that had taken place among various witnesses and others about the appellant generally, his conduct, particularly towards female students, and the police investigation.

[6]  The appellant appeals his convictions on the basis that the trial judge failed to provide any meaningful analysis in rejecting the possibility that the witnesses’ evidence was inadvertently tainted and that the trial judge failed to consider the defence of implied consent before convicting the appellant of assault.

[7]  I find the trial judge’s reasons do not reflect sufficient analysis and articulation of his reasoning process regarding his ultimate dismissal of what he found was an extreme danger of inadvertent tainting of the evidence in this case. For the reasons that follow, I allow the appeal on this issue, set aside the appellant’s convictions and order a new trial.

Trial Decision

[207]  The trial judge’s decision was delivered orally, with written reasons released later the same day, the day after counsel made legal submissions,.

[208]  The trial judge started by summarizing the relevant legal principles that apply in any criminal case as well as those applicable in sexual assault cases specifically. Among those principles and relevant to the present appeal, the trial judge noted that he was required to consider the evidence as a whole and its cumulative effect and that corroboration of the complainants’ evidence was not required. He also reviewed the factors he had to consider when assessing the credibility and reliability of the complainants and witnesses.

[209]  He then summarized the submissions of each party, following which he reviewed the evidence and his findings with respect to each complainant and, ultimately, his conclusions regarding whether the appellant would be convicted of the charges regarding that particular complainant.

[210]  What follows is a summary of the trial judge’s findings and conclusions on the issue of inadvertent tainting.

M.M.

[215] The trial judge’s conclusions with respect to the potential for inadvertent tainting and the reliability and credibility of M.M.’s evidence were as follows:

This point [referencing the lack of corroboration] became precisely acute during the part of the cross-examination devoted to what might be termed [M.M.’s] evolution in thinking from annoyance and “uncomfort” to echo her repeated statement about “uncomfortable,” to a belief in a negative intention. I find that she has not unfairly or wrongly characterized what she endured, given the nature and number of arm touches and the totally unreasonable back rub involving teacher and student in a situation lacking any reason for any form of tactile contact to the back. I find that anyone in such a situation would conclude as she did, notwithstanding the negative information and likely contamination.

...

I must underscore that I have considered quite closely, and with great care, the many challenges raised by the defence grounded upon a bedrock of rumour, innuendo, salacious comments, precise allegations of misconduct advanced by persons for whom she has respect, and by many others, the possibility that “noble intent perversion” is at play, etc. At the end of my analysis, I find that although one cannot escape wholly the influence of such matters, as the Crown submitted on November 19, this young lady did testify fully, fairly, frankly and in a reliable way as to the core of her accusations of repeated physical contact.

...

...I directed myself to be quite vigilant as to the reliability and credibility of her testimony not only by reason of the mindset within the school as to the “creepy teacher” but her subjective negative view of this individual, which might easily have led to conflating innocent though annoying interactions and accidents into something nefarious.

[216] These passages make it clear that the trial judge was alive to the issue of inadvertent tainting and properly instructed himself as to the care he needed to take in assessing M.M.’s evidence because of it. However, they also make it clear that he simply concluded that despite what he had described as a “very real possibility” leading to an “extreme danger” in his similar fact ruling, the trial judge did not set out the basis upon which he concluded that the complainant’s evidence was credible and reliable despite the live issue of the potential for inadvertent tainting. It is a bald conclusion. What is missing is the “why?” and the “how?” behind the trial judge’s conclusion.

[217] I have paid particular attention to this passage in the trial judge’s findings:

I find that she has not unfairly or wrongly characterized what she endured, given the nature and number of arm touches and the totally unreasonable back rub involving teacher and student in a situation lacking any reason for any form of tactile contact to the back. I find that anyone in such a situation would conclude as she did, notwithstanding the negative information and likely contamination.

[218] While, at first blush, this would seem to be an indication that he is attributing her views about the nature of the appellant’s contact with her to the frequency with which it happened and not to the views of others as to its propriety, the problem is that the trial judge has already accepted, to engage in this reasoning, that the touching as the complainant described it, including the frequency of that touching, in fact occurred. This is problematic because it is circular reasoning in that it presumes what it seeks to prove.

C.G.

[221] Under the heading “the issue of collusion and contamination,” the trial judge noted:

[C.G.] had heard rumours about [the appellant] that were quite negative. In addition, the Factum makes plain at para. 17 that her allegations “took on a life of their own within the school setting.” [Defence counsel who wrote the defence Factum] also penned passages suggesting clear opportunities for contamination, at the very least, at para. 16, bullet point 7 and 9, para. 24 and 31. I have had to give these submissions signal consideration in terms of the reliability of the witness and of the supporting witnesses, to be identified, and to analyse the possibility that any of these grave concerns, not to mention “noble cause perversion” and other causes of unreliable testimony, have operate (sic) to at least raise a reasonable doubt.

[222] The trial judge considered the testimony of the witnesses L.S. and N.C. that seemed to support C.G.’s evidence.

[223] The trial judge found that all three of C.G., L.S. and N.C. were credible witnesses. He then went on to discuss their reliability and made the following comments:

On the subject of reliability, they all appear to describe the same scene, but anchor it in different contexts, so to speak, and [N.C.] makes reference to a different kind of touching, less physically invasive given where the teacher’s hand is described as touching, but quite troubling nevertheless. It is at this stage that typical gossip and the spreading of rumours may lead to contamination. It is possible that [N.C.] recalls a totally different situation and it is possible that [L.S.] has been influenced by the various discussions on [the appellant] to recall something she never saw. Neither of the supporting witnesses suggested a clear link to the question of [C.G.] having been told by her teacher that she need not switch classes.

Nevertheless, all three witnesses to this Count have described quite direct conduct by [the appellant] that involved the placement of his hand on the person of [C.G.], but in three different fashions. In my view, [C.G.’s] recall is the correct one, as supported by [L.S.] and [N.C.’s] testimony is helpful in pointing out that [the appellant] would touch the body of [C.G.] in a most inappropriate manner.

[224] The trial judge again properly instructed himself on the issue of inadvertent tainting as it related to C.G.’s evidence. He accepted it, in part because it was corroborated by witnesses, and he properly instructed himself on the issue of inadvertent tainting as it related to the evidence of the corroborating witnesses as well. However, after recognizing that at least some of the corroborative evidence may have been tainted, as illustrated by the comment that L.S. may have been influenced by the various discussions to recall something she never saw, he then used that evidence to corroborate C.G.’s evidence.

J.U.

[227] The trial judge went on to find J.U. credible, in large part because she presented with no agenda to harm the appellant. She testified using neutral language and in a matter-of-fact way. She also readily acknowledged when she was not certain about something.

[228] His Honour went on to address the potential for inadvertent tainting as follows:

[J.U.] certainly agreed with the suggestion that the other accusations led her to reconsider her original perception of the matters. As a matter of law, however, her reconsideration was not germane to the question of law whether any undue influence, collusion, contamination, “noble cause perversion” might have been at play. I find that no such negative influences were in play in her case. And, as a matter of fact, this tended to demonstrate the degree to which she kept an open mind and was not influenced to any relevant degree by the potential contaminating influences that were at play.

On the question of contamination, I note that [M.R.] testified that [K.S.] indicated to her one incident of leg touching by [the appellant], and yet [M.R.] was a popular student and frequented many of the complainants and heard much of the gossip and rumours, and yet she was not influenced to exaggerate her remarks. This is not to suggest that all are immune to potential contamination, far from it, but merely to illustrate that wise beyond their years young accomplished students, as are obviously [M.R. and J.U.], can in fact resist the pernicious influence of rumours etc.

[229] In my view, the trial judge, having again correctly instructed himself regarding the potential for inadvertent tainting, simply made the bald assertion that it is not of concern when it comes to J.U.’s evidence. He did not provide any analysis as to why he arrived at that conclusion.

[230] Further, it should be noted that he references M.R.’s evidence and his apparent finding that she too did not fall prey to inadvertent tainting yet M.R. did not have any evidence to give that was relevant to the incidents involving J.U. M.R. gave evidence relating to K.S. It is also unclear what the connection is between a witness’ youth or academic status and their susceptibility to inadvertent tainting which is, by its very nature, a subconscious process.

[231] The trial judge considered the evidence of K.M. to corroborate that of J.U. but referenced the fact that K.M. had not actually seen the contact by the appellant with J.U.’s leg and the fact that J.U. and K.M. discussed the incident immediately afterwards. There was no analysis of the inadvertent tainting issue as it related to the evidence of K.M.

[233] Under the heading “supportive testimony”, the trial judge discussed the evidence of A.W. and the fact that it corroborated that of C.T. in many respects. On the issue of inadvertent tainting relating to A.W., the trial judge wrote:

[A.W.] stated that he spoke to [C.T.] after an incident with [the appellant]. In general, he stated that he was a witness to back patting and to touching of the leg by means of [the appellant’s] hand. In fairness, it was described as a “pat.” He suggested that [C.T.] may have complained to him of “touchings” that he did not notice, if they in fact took place.

...

As in the case of most of the witnesses, he knew about the police investigation and shared quite openly that most students were discussing it in terms of “X” was called and interviewed, “Y” has been called to be interviewed and “Z” is waiting to see if will be interviewed.” These are my words to summarize his testimony.

[234] Having correctly instructed himself to consider the potential role of inadvertent tainting in the evidence of C.T. and the corroborative evidence of A.W., His Honour then made no findings with respect to that issue when concluding that the appellant was guilty of assault with respect to C.T.

[235] The trial judge started out under heading “findings” by concluding that “...the whole account that she [C.T.] gave as to what she said, and to whom, and from whom she received a complaint, is unreliable.” This is the only reference to C.T.’s discussions with others and their impact on the trial judge’s findings.

[236] In my view, there is nothing in the trial judge’s decision to indicate how he resolved the issue of the potential for inadvertent tainting in C.T. or A.W.’s evidence, let alone the basis for that resolution.

K.S.

[239] The trial judge also noted the importance of assessing the possibility of inadvertent tainting when it came to the evidence of the witnesses called to corroborate K.S.’s evidence and in particular her friend M.R. and her classmate J.D.

[240] In his findings relating to the charges involving K.S., the trial judge commented:

I must be critical of all witnesses, especially complainants exposed or exposing others to potential contamination. I find that K.S. was not very confident of her responses as to the frequency, based on her obvious look of uncertainty, and her lack of anchors for her memory.

...

I have noted the great lack of support from non-students for the conduct complained of, and how the lack of evidence supports pleas of unreliability and contamination, if not worse.

[241] The trial judge went on to find that the evidence of J.D., called to corroborate K.S.’ evidence, would not be given much weight as he lost his focus and concentration during a challenging cross-examination and “was not able to present much satisfactory information.”

[242] With respect to M.R., the other witness called to corroborate the evidence of K.S., His Honour noted:

[M.R]. was an honest and sincere witness, but she had no real anchors upon which to rest her memory, and the passage of time made it such that she spoke in generalities, and I doubt that anyone who did not take notes would have better, and many would have fared far worst (sic). If, in fact, [M.R.] is correct in her memory of one touching of the thigh, then she demonstrates that the poisoned atmosphere did not reach her. I have warned myself to be cautious as the witness presented with little respect for the defendant prior to being told by K.S. of her situation, and her lack of respect for [the appellant] was only made worse after the complaint was voiced.

[243] There was no analysis or further discussion of the issue of inadvertent tainting or the role that it played in the reliability of K.S.’ evidence or the evidence of those witnesses called to corroborate her evidence.

ISSUES

[245] The appellant raises the following issues on appeal:

1. Did the trial judge fail to provide any meaningful analysis in rejecting the potential that the witnesses’ evidence was inadvertently tainted?

ANALYSIS

What is inadvertent tainting?

[249]  Inadvertent tainting, also referred to as innocent collusion, occurs when a witness’ testimony is influenced by hearing evidence from other witnesses. Through conversation with others, a witness may start to remember the situation in question differently or certain details differently or the witness may interpret differently what he or she heard or saw or felt, as a result of hearing the interpretations of others. The inadvertent or innocent nature of this form of witness contamination refers to the fact that it can happen without the witness ever intending to seek out information with a view to changing or aligning their own account. It can happen subconsciously, without the witness even being aware that his or her later account or interpretation of events has been subtly changed by hearing the views and accounts of others.

[250]  Inadvertent tainting should be distinguished from collusion which is the term used to describe the situation in which witnesses get together and decide together what they are going to say to the police and/or in court to appear to be telling a consistent and reliable story.

[251] It is important to note that just because one witness has heard what someone else will say or believes happened, or has discussed another person’s recollections or interpretations, it does not necessarily mean that either witness is not telling the truth or that their evidence was tainted.

[252] Outright collusion between witnesses is a credibility issue. If a court finds that witnesses have actively tried to “get their stories straight,” the ability of the court to find that those witnesses are honest and credible and are intending to tell the truth is compromised. Inadvertent tainting is a reliability issue. A witness whose evidence has been tainted, without him or her realizing it, through inadvertent tainting, may well be a credible witness who appears to be honest, forthright and telling the truth. The witness may well believe he or she is telling the truth. But the fact that his or her account has changed, even subtly, but in a relevant way, because of discussions with others, means that it may be less reliable.

[253] As Justice Nordheimer wrote in R. v. C.G.:

The key point is that, unlike [collusion] which corrupts the evidence of all participants, where [inadvertent tainting] has occurred, a close examination is required to determine what impact that innocent sharing of information may have had on the evidence of each of the witnesses who is a party to the exchange. As Sopinka, J. said in R. v. Burke, [1996] 1 S.C.R. 474, at para. 45:

Under this approach, the trier of fact is obliged to consider the reliability of the evidence having regard to all the circumstances, including the opportunities for collusion or collaboration to concoct the evidence and the possibility that these opportunities were used for such a purpose. [Emphasis in original.]

Was the judge’s analysis of the evidence in light of the potential for inadvertent tainting sufficient?

[254] On the facts of this case and, particularly given the trial judge’s dismissal of the similar fact application largely as a result of concerns about what he described as the “extreme danger” posed by the “very real possibility” of inadvertent tainting affecting the evidence of the complainants, in my view, his subsequent analysis of the reliability of the complainants’ evidence and his articulation of the basis upon which he ultimately found it to be reliable despite these concerns is not sufficient.

[258] The issue in this case is that the present state of the law, as I understand it, requires that in cases in which inadvertent tainting is found to be a live issue, trial judges must critically analyze any discrepancies and changes in the witness’ evidence or the possible intentional and unintentional effects of the potential tainting.

[259] Again, as I understand it, where there is clear and considerable evidence of the potential that a witness may have been tainted, the trial judge must explain why he or she accepts the testimony of the witness in the face of the evidence of tainting or the potential for tainting.

[260] In my view, it is not sufficient in cases such as this one, where the trial judge accepted that inadvertent tainting was a live issue and posed an extreme danger to the integrity of the evidence such that it was not safe to admit it for similar fact purposes, to dismiss that same extreme danger as having had no impact on the reliability of the witness’ evidence without clearly setting out his analysis as to why he has come to that conclusion.

[261] On my reading of the authorities presented to me on this appeal, this is particularly important when the case involves the risk of a slight reinterpretation of an event in which the potential for inadvertent tainting related to the allegations of sexual purpose, not the touching itself.18 This argument was advanced in this case

[262] As I understand it, failure to engage in and set out this analysis is an error of law that requires this court to set aside the convictions.

[263] I find that in his analysis regarding the allegations involving the complainant M.M., the trial judge clearly found at paragraph 46 of his reasons, that inadvertent tainting was a live issue. I also find that, as evidenced by paragraph 53 of his reasons, he simply concluded that there had been no tainting without explaining how he went from a finding that it was a live issue to finding that it wasn’t. Given where this case fell on the spectrum of subtle gradations in content and context, as it was described by appellant’s counsel, which made the spectre of inadvertent tainting loom particularly large, the evidence of the potentially tainted witnesses needed to be examined with particular scrutiny.

[264] I find that in his analysis regarding the allegations involving the complainant C.G., the trial judge referenced the issue of inadvertent tainting but did not address it in his analysis of C.G.’s evidence. While he found that her friend L.S.’ evidence corroborated C.G.’s, he also found that L.S.’ evidence may well have been tainted to the point that she was recounting something that she did not in fact see.

[265] With respect to the complainant J.U., the trial judge found her to be a credible witness and essentially therefore rejected the notion that her evidence had been inadvertently tainted. This is problematic because inadvertent tainting is a reliability issue. In other words, the evidence of the most credible witness can still fall prey to inadvertent tainting. Trial judges need to be alive to this and need to articulate the specific basis for finding that it was not a factor.

[266] With respect to the complainant C.T., I find that the trial judge mentioned the potential for inadvertent tainting but failed to do anything other than that. This does not reflect the level of critical analysis required when inadvertent tainting was something that the trial judge himself had repeatedly identified as a very real danger.

[267] With respect to the complainant K.S., I find that the trial judge identified the witnesses J.D. and N.K. as potentially corroborative but then dismissed their evidence as being entitled to very little weight. He found that M.R. was another potentially corroborative witness but found that she too was potentially tainted. Ultimately, in my view, the trial judge failed to explain how he resolved the tainting issue regarding M.R. and K.S. While he commented that if M.R.’s evidence about the touching was accepted, it would indicate that “the poisoned atmosphere did not reach her,” this is another example of circular reasoning that presumes what it seeks to prove. Further, M.R. was not a witness to the touching itself. She was only testifying about what the complainant K.S. had told her.

[268] I accept the submission of appellant’s counsel that given the nature of the allegations in this case, the context within which they arose and the discussions that took place around them, a critical analysis of the evidence, that squarely addressed the live issue of inadvertent tainting with clear and detailed reasons articulating that analysis was required. I find that the trial judge stated conclusions about the credibility of the complainants without analyzing whether, how and to what extent their reliability might have been impacted through inadvertent tainting. His statements were essentially conclusions, without reasons.

[269] I say with great respect that, in my view, the trial judge, in a busy jurisdiction, was attempting to move a complicated trial forward to a conclusion and to give the parties a decision in as timely a fashion as possible. He did the best he could to distill a large amount of evidence from twenty-five witnesses down to a manageable volume in a short period of time. Unfortunately, his admirable efforts to deliver timely justice led to an honest but problematic overlooking of the fact that special care and attention needed to be paid not only to the potential for inadvertent tainting, to which the trial judge was so clearly alive but also the analysis through which he determined that the concern had been addressed and his articulation of that analysis.

[270] I am keenly aware that the trial judge did not have the benefit of receiving the cases that I received on this appeal. These cases relate to what I see as a fairly discrete branch of the law relating to inadvertent tainting and the special care that must be taken by trial judges grappling with this issues in cases such as this one where the interpretation of and later describing of events by complainants and witnesses, most of whom spoke to or received information from others about the same topic, were central.

DISPOSITION

[271] For these reasons, I would set aside the convictions on counts 3,4,6,7,8,9 and 12 of the Indictment and order a new trial on those counts. As noted at paragraph 8 of these reasons, the conviction on count 5 is quashed on consent.