This week’s top three summaries: R v Sandeson, 2020 NSCA 47, R v Johnson, 2020 ONSC 3672, and R v Robertson, 2020 ONCA 367

R v Sandeson (SKCA)

[June 17, 2020] Charter s.7 - Late Disclosure: Defence PI Gone Rogue - 2020 SKCA 47 [Reasons by David P.S. Farrar with Saunders and Scanlan, JJ.A. concurring]

AUTHOR’S NOTE: What do you do when a defence private investigator decides to try to become a Confidential Informant against your client for the police on the back of the investigation  you paid for?  Thanks to former RCMP officer Bruce Webb of Martin and Associates Investigations Inc. we now know a lot of things people probably shouldn't do. The police should not indulge the Defence contractor by meticulously writing him out of their police notes, Defence counsel  should probably do a little more digging when something smells wrong, and Crown counsel should definitely disclose the circumstance when it happens sometime before the first day of trial. In a Canadian case that relies on the infamous Lawyer X proceedings from Australia, the NSCA proceedings detail how, step by step, all fairness was stripped away from the prosecution of the accused in this case because Bruce Webb somehow forgot his responsibilities to his employer, his good name, and his client. The decision rests on a breach of the duty to disclose, but commentary suggests a very strong abuse of process application should be pursued at the retrial. 

Webb could not lawfully become a Confidential Informer because he became a police agent assisting in the prosecution of his client. After he crossed that threshold, his status and participation was a disclosable because it was useful to the defence in gathering evidence for an application.

Pertinent Facts

[4] In August of 2015, Sandeson was living in Halifax and was about to start his first year of medical school at Dalhousie University. Mr. Samson was also living in Halifax. He was a physics student at Dalhousie and lived close to the appellant. The August 15 meeting was arranged so that Mr. Samson could sell to Sandeson a large quantity of marijuana for which he was to pay $40,000. Mr. Samson left his apartment and told his girlfriend he would be back soon. He left his wallet, keys and prescribed medication behind. Security video recordings showed Mr. Samson arriving with the appellant at the appellant’s apartment at 1210 Henry Street at about 10:30 p.m. on August 15. He was carrying a large black duffel bag. That was the last time Mr. Samson was seen and he has not been heard from since. His body has not been found.

[5] Pookiel McCabe had an apartment across the hall from Sandeson’s apartment. He and a friend, Justin Blades, and Sandeson were in McCabe’s apartment on the evening of August 15 but Sandeson returned to his own apartment shortly after Blades arrived. Eventually, Blades and McCabe heard a single gunshot. Sandeson can be seen on the security video going to McCabe’s door very shortly thereafter and Blades and McCabe testified that the appellant seemed in a state of shock or panic.

[6] At trial Blades and McCabe testified they walked across the hall with Sandeson and looked in his apartment, where they saw a man slumped over in a chair as well as blood, cash and drugs. Blades and McCabe went back to McCabe’s apartment but then returned to Sandeson’s apartment a short time later. Blades testified that he saw streaks of blood leading from the chair where the man had been sitting, to the bathroom. Sandeson said he had to clean up and asked Blades for the use of his car but Blades refused. As I will discuss in greater detail later, when McCabe and Blades were originally interviewed by the police both denied having any significant information relating to the investigation.

[7] The security video, which recorded to a DVR in Sandeson’s apartment, showed Blades and McCabe returning to McCabe’s apartment and then leaving the building altogether. The DVR did not record between approximately 11:30 p.m. on August 15 to approximately 1:00 a.m. on August 16.

[8] Sonja Gashus, Sandeson’s girlfriend, arrived at the apartment at about 12:30 a.m. on August 16. She noticed the apartment smelled of bleach. Blades made that same observation later that morning.

[11] Surveillance video showed Sandeson cleaning out the trunk of his car later on the morning of Sunday, August 16. Mr. Samson’s DNA was found in that trunk.

[12] That same day, Mr. Samson was reported missing. The case was not assigned to the Halifax Regional Police Major Crimes Unit until late on Monday, August 17. The police learned that the last call to Mr. Samson’s phone came from an IP address located at a group home for persons with disabilities in Lower Sackville. The police attended at the group home to find out who had been communicating with Mr. Samson. Sandeson worked at the group home but was not present when the police attended. A co-worker contacted him on Tuesday, August 18, and said that the police were looking for someone who had been communicating with Mr. Samson from the home. Sandeson contacted the police and met with them that afternoon.

[13] On the morning of Monday, August 17, the video surveillance recordings showed Sandeson removing garbage bags and other items from his apartment while wearing gloves. Cell tower records indicated that on Tuesday, August 18, Sandeson’s phone was in Truro, where his family has a farm. Later, investigators found items at the farm consistent with those Sandeson removed from his apartment. Mr. Samson’s DNA was found on some of those items, including a shower curtain and a large duffel bag.

[18] As a result of the inconsistencies in the information provided by Sandeson and out of concern for Mr. Samson’s health, at approximately 6:30 p.m. on August 18 the triangle decided they had sufficient grounds for a warrantless (exigent) search of Sandeson’s apartment. The search was conducted shortly after 6:30 p.m. on August 18. The police did not find Mr. Samson in the apartment. They did not find any signs of foul play but did see a surveillance system connected to a DVR, a quantity of magic mushrooms, and an empty box for a handgun (but not the gun itself). After leaving the apartment, the searchers later returned and disconnected the DVR to prevent its contents from potentially being erased remotely. Officers on the scene were instructed to secure the apartment while a warrant was obtained. The officers decided to wait in the apartment in order to secure it.

[21] The search and examination of Sandeson’s apartment indicated an attempt had been made to clean the apartment. Despite the cleaning efforts, blood was found that contained Mr. Samson’s DNA. Cash was seized and a 9mm gun loaded with one bullet was found in a locked gun case. The blood splatter on the gun was consistent with a person being shot at a distance of two to four feet away. It, too, contained Mr. Samson’s DNA. The gun also had the DNA of Sandeson and another unidentified person on it.

[24] A third interview took place on August 19. It began at about 9:50 a.m. and ended at about 6:40 p.m. Sandeson maintained he did not know where Mr. Samson was, what had happened to him, or whether he was alive.

[25] During that interview, Sandeson said three men had entered his apartment dressed in black and wearing masks. They attacked Mr. Samson and Sandeson. One of the masked men had a gun. Sandeson was struck on the head and fell to the floor. He did not see what happened to Mr. Samson, but there was a lot of blood. The intruders took the large duffel bag and any of the money which had not become bloody and exited through the front door with Mr. Samson. Sandeson said he was scared and panicked and cleaned up as much of the blood as he could. He threw out his shower curtain because it had blood on it.

[26] After he was shown some of the video from his security cameras, Sandeson said that two men had been hiding in his roommate’s bedroom when he and Mr. Samson were in the kitchen. They had come in through the window which opens on to a rooftop where there is a barbecue. They were wearing black “morphsuits” that covered their faces. The men were there to scare Mr. Samson in part because Mr. Samson owed money. When they came into the kitchen, Sandeson retreated to his room. They pointed a gun at Mr. Samson and told Sandeson to turn off his security video recorder, which he did. The men told Mr. Samson that “he was done.” There was a single gunshot and a lot of blood. The two men put Mr. Samson in the duffel bag with the marijuana and most of the cash and carried it out the front door. Sandeson said that he then cleaned up the apartment as well as he could and took the garbage out – mostly paper towels – in the morning.

[27] Although Sandeson initially said that he had not seen Mr. Samson get shot, he eventually said Mr. Samson was shot in the back of the head. At this point, he was arrested for murder.

Bruce Webb - the Defence Private Investigator

[28] As noted above, Blades and McCabe, who were across the hall from Sandeson’s apartment when they heard a gunshot, were called by the Crown to give evidence at trial. McCabe testified first on May 8, 2017. Counsel for Sandeson began his cross-examination of McCabe that same day but had not finished by the end of the day. After court, Crown counsel advised the defence that a private investigator, Bruce Webb, who had been working with the defence team, and who had been instructed to interview Blades and McCabe for the benefit of Sandeson, had provided information to the police.

[29] The defence made application for a mistrial and the Court embarked on a voir dire to consider it. This was Voir Dire 7. It also required the determination of whether Webb had confidential informant status which became Voir Dire 7B.

[30] Webb’s involvement in Sandeson’s defence began in the fall of 2015 when his counsel hired Martin and Associates Investigations Inc., a firm of private investigators, to assist them in preparing for trial. Webb, a retired RCMP officer and an employee of Martin and Associates, was assigned to the file. Webb attended meetings with Sandeson’s counsel and was “an active participant in development of defence strategy.” Webb became concerned Sandeson was guilty of murder and hoped that he would be convicted. Webb was worried the police were not doing enough to investigate the case.

[32] ... Counsel, wanting to know what they would say under pressure, asked Webb to find and interview Blades and McCabe.

[33] With the assistance of Sandeson’s brother, Webb first tracked down Blades. He had left Halifax and moved to Ontario. He was trying to live his life in a way that minimized the possibility he would be drawn into the case. Blades was fearful and hesitant to speak. Webb met with and interviewed Blades on October 18, 2016, and had to work to build a relationship of trust with him. Eventually, Webb was able to convince Blades that it was safe to speak. Blades disclosed to Webb a story consistent with the evidence he gave at trial and inconsistent with his previous police statement. Webb told Blades he would help him give a statement to the police. Blades told Webb that without Webb’s help, he would not meet with the police.

[34] Webb reacted emotionally to Blades’ statement. On his way home, he saw S/Sgt. Lane out walking his dog and stopped to speak with him. He told him about Blade’s statement. Webb said he did not want anyone to know he had assisted the police. S/Sgt. Lane said he would do what he could in that regard. He said he would have a detective contact Webb.

[35] The following day, S/Sgt. Lane told Sgt. Boyd and Sgt. Jody Allison of Webb’s information and instructed them to keep Webb’s role confidential. Following his direction, Sgt. Allison followed up with Webb, who again requested confidentiality, but agreed to help the police by meeting with them at Blades’ home. In particular, Webb agreed to help the police by convincing Blades to make a statement. The police were aware that Webb worked for Sandeson.

[36] At the Voir Dire, Webb described the motivation for his request for confidentiality this way: “My concern was I was working through Mr. Tan [Sandeson’s trial counsel] and I didn’t want word getting back to him about this.” Sgt. Allison testified that he believed Webb had confidential informant status.

[37] In his evidence, Sgt. Allison testified Webb said he would help get Blades to the station for a statement and that Webb was encouraging Blades to speak to the police. Sgt. Allison agreed that without Webb’s help the investigators would not have Blades’ contact information. Until Webb contacted the police, no-one had been assigned to find and re-interview Blades or McCabe.

[39] For his part, Webb agreed that by assisting the police he was doing something wrong.

[40] On October 20, 2016, Webb met with Blades and the investigators, Sgts. Boyd and Allison, at Blades’ residence. He assured Blades the police were trustworthy and encouraged him to make a statement. Blades agreed. Sgts. Boyd and Allison took Blades to the station where he gave a full KGB statement which mirrored his evidence at trial. Responding to questions from Sgt. Allison, Blades said he was providing a statement because he had a change of heart and was “tired of being scared.” He denied that anyone had counselled him on what to say to the police.

[41] Webb did not disclose his involvement with the police to Sandeson or his counsel, nor to his employer, Martin and Associates. Instead, he set about finding and interviewing McCabe who had moved to Ontario in the summer of 2016. McCabe was also nervous about speaking to Webb, whom he thought was working for the Crown. As he had with Blades, Webb built a rapport of trust with McCabe.

[42] Eventually, on October 20, 2016, McCabe made a statement to Webb that was consistent with Blades’ statement. Webb encouraged McCabe to speak with the police. Without telling McCabe he was going to do so, Webb then contacted the police and provided McCabe’s contact information, advising that he should be re-interviewed. A few days later, the investigators did interview McCabe in Toronto, and he too provided a full KGB statement. McCabe testified that he assumed Webb had given the police his contact information and had advised them of the content of the statement he gave to Webb.

[43] On November 8, 2016, Webb met with the defence team to report on his interviews of McCabe and Blades. He did not report on his contacts with the police.

[45] The KGB statement made by Blades included several references to someone named “Bruce” but without any last name. Counsel for Sandeson, Eugene Tan, said after he reviewed the statement he was suspicious that “Bruce” might be Webb given the statement had been made so soon after Webb met with Blades at Mr. Tan’s direction. Counsel confronted Webb who denied he had anything to do with Blades’ KGB statement.

[46] Thomas Martin, a retired homicide detective, and the principal of Martin and Associates, also confronted Webb who replied “Absolutely not” when asked if he had played a role in the new statements. At trial, Webb claimed to have no memory of these discussions with Tan and Martin.

[47] Believing Webb, counsel for Sandeson asked for disclosure of police notes surrounding the new KGB statements. Those notes were delivered in April, 2017, and made no mention of any informant or of Webb’s role in the statements.

[48] On May 8, 2017, the Crown told the Court and Sandeson’s counsel that Webb had waived his claim to informer privilege. However, the voir dire on the mistrial application was complicated by the fact that, when Webb appeared to testify, he told the Court he had not waived his privilege. This required the Court to hold an in camera voir dire within the voir dire to consider whether, in fact, Webb was an informant entitled to claim the privilege (Voir Dire 7B). Both Sandeson and the Crown opposed Webb’s claim. They both argued that Webb had done more than provide information, he had actively assisted the police in their inquiries respecting McCabe and Blades, he was not an informant but a state agent. The trial judge agreed. He concluded that Webb “became an active participant in the criminal investigation” (R. v. Sandeson, 2017 NSSC 146, ¶54).

[49] The trial judge found the Crown had breached its duty of disclosure but concluded an adjournment and further cross-examination was the proper remedy. He dismissed the application for a mistrial.

Did the Trial Judge Err in Failing to Declare a Mistrial?

[63] In R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, Cory J. explained that the question of whether late disclosure impaired the accused’s right to make full answer and defence as guaranteed by s. 7 engages a two-step inquiry.  At the first stage of the inquiry, the undisclosed information must be examined to determine what impact it may have had on the decision to convict.

[64] At the second stage of the analysis, even if the undisclosed information does not itself affect the reliability of the conviction, the effect of the non-disclosure on overall trial fairness must be considered:

[34]      … there is a reasonable possibility the non-disclosure affected the outcome at trial or the overall fairness of the trial process. … It must be based on reasonably possible uses of the non-disclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the non-disclosure. If this possibility is shown to exist, then the right to make full answer and defence was impaired.…

[36]        Thus, in order to determine whether the right to make full answer and defence was impaired, it is necessary to undertake a two‑step analysis based on these considerations.  First, in order to assess the reliability of the result, the undisclosed information must be examined to determine the impact it might have had on the decision to convict.  Obviously this will be an easier task if the accused was tried before a judge alone, and reasons were given for the conviction.  If at the first stage an appellate court is persuaded that there is a reasonable possibility that, on its face, the undisclosed information affects the reliability of the conviction, a new trial should be ordered.  Even if the undisclosed information does not itself affect the reliability of the result at trial, the effect of the non‑disclosure on the overall fairness of the trial process must be considered at the second stage of analysis.  This will be done by assessing, on the basis of a reasonable possibility, the lines of inquiry with witnesses or the opportunities to garner additional evidence that could have been available to the defence if the relevant information had been disclosed.  In short, the reasonable possibility that the undisclosed information impaired the right to make full answer and defence relates not only to the content of the information itself, but also to the realistic opportunities to explore possible uses of the undisclosed information for purposes of investigation and gathering evidence.

[65] In R. v. T.S., 2012 ONCA 289, Watt J.A. provided a helpful statement on how to assess the impact of the late disclosure on trial fairness:

[127]      To assess the impact of the undisclosed evidence on the overall fairness of the trial, we must assess whether the appellant has shown a reasonable possibility that the overall fairness of the trial was impaired by the failure to disclose. This inquiry examines not only the content of the undisclosed information, but also the realistic opportunities to use the undisclosed information for purposes of investigation or gathering other evidence: Dixon, at para. 36. A relevant consideration is the diligence of trial counsel's pursuit: Dixon, at paras. 37 and 38; and R. v. McAnespie, 1993 CanLII 50 (SCC), [1993] 4 S.C.R. 501, at pp. 502-503


[129]      An appellant can discharge the burden of establishing a reasonable possibility that a failure to disclose impaired the overall fairness of the trial process by showing that the undisclosed evidence could have been used to impeach the credibility of a witness for the Crown, or could have helped the defence in its pre-trial investigations and preparations, or in its tactical decisions made at trial: Taillefer, at para. 84.; Illes, at para. 27; and R. v. Skinner, 1998 CanLII 809 (SCC), [1998] 1 S.C.R. 298, at para. 12.[Emphasis in original]

[66]        Trial fairness includes concerns about the integrity of the justice system. In R. v. Rajalingam, [2003] O.J. No. 530 (Ont. Sup. Ct. J.), aff’d [2004] O.J. No. 3920 (Ont. C.A.) the court held “[a] breach of section 7 of the Charter occurs if the late disclosure either impairs the ability of the accused to make full answer and defence or where the integrity of the administration of justice is threatened by an unfair trial” (¶22). A corollary to this is that examining the impact of the late disclosure also includes considering the appearance of fairness (Bjelland, ¶22 citing R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, ¶45).

[67]        Once an infringement of the right to make full answer and defence is shown, the accused is entitled to a remedy under s. 24(1) of the Charter. At this stage, the degree of prejudice to the accused’s rights must be considered (Dixon, ¶35). When the late disclosure occurs at the trial level, an adjournment and disclosure order will usually suffice (Dixon, ¶33) unless the accused shows another remedy is necessary to cure trial unfairness or maintain the integrity of the justice system (Bjelland, ¶23-27). Ultimately, as Steel J.A. explained in R. v. Korski, 2009 MBCA 37, ¶93:

… remedies for late or non-disclosure … must be responsive to the circumstances of the breach of the accused's disclosure rights. The analysis is context-dependent. Remedies for late or non-disclosure may range from an adjournment to a stay of proceedings. In deciding which remedy is appropriate, a court may take into account a variety of factors, including the stage of proceedings and the impact of the evidence on the proceedings. …

[70] Due diligence or lack thereof is not conclusive and, as Cory J. explained in Dixon, its significance is negatively correlated with the materiality of the undisclosed evidence:

39 … where the materiality of the undisclosed evidence is, on its face, very high, a new trial should be ordered on this basis alone. In these circumstances, it will not be necessary to consider the impact of lost opportunities to garner additional evidence flowing from the failure to disclose. However, where the materiality of the undisclosed information is relatively low, an appellate court will have to determine whether any realistic opportunities were lost to the defence. To that end, the due diligence or lack of due diligence of defence counsel in pursuing disclosure will be a very significant factor in deciding whether to order a new trial. …


[72] I will first discuss what I consider to be the trial judge’s two errors which caused him to misstate the nature, and understate the severity of the impairment of Sandeson’s right to make full answer and defence generated by the late disclosure of Webb’s involvement. I will then explain why, in my view, an adjournment and further cross-examination was insufficient to address the real trial unfairness and ensure maintenance of the integrity of the justice system.

The impact of the late disclosure on Sandeson’s right to make full answer and defence

[75] By determining the materiality of the undisclosed information using the yardstick of whether that evidence related to the case against the appellant, the judge restricted the meaning of “full answer and defence” to the ability of an accused to respond to the merits of the Crown’s case.

[76] In my view, such limiting is a legal error. The right to make full answer and defence includes not only the ability to challenge the Crown’s case on the merits but also the ability to advance reasonable Charter and/or other process-oriented responses to the charges.

[77] In R. v. Aldhelm-White, it was revealed post-conviction that the officer who had sworn informations on which search warrants were issued was a secret drug dealer who fabricated the underlying information (¶2-4). Because the appellants had pleaded guilty, the non-disclosure engaged the overall fairness of the trial prong of the Dixon analysis (Aldhelm-White, ¶15). Further, the undisclosed information about the officer’s misconduct did not relate to the merits of the case and whether the appellants were factually guilty. This Court, nevertheless, agreed with the Crown’s concessions that the undisclosed evidence impacted the right to full answer and defence because it closed avenues of investigation relating to the legality of the searches and the credibility of the investigations (¶17-18). See also R. v. McKay2016 BCCA 391, ¶143.

[78] In R. v. Alcantara, the undisclosed information revealed several of the intercepted communications tendered at trial were obtained via a technique that the wiretap authorizations perhaps did not permit (¶4-8). In applying the two-part Dixon test, the Alberta Court of Appeal found:

41 If the Crown had properly disclosed the use of the "put away" feature, it is possible, even likely, that Alcantara's counsel would have applied to stay the prosecution as a result of this Charter breach. This likelihood is evidenced by his having launched a similar application, with some success, in his companion trial. We therefore cannot conclude that the Charter breach did not impact trial fairness. …

[Emphasis added]

[79] With respect to Alcantara’s co-accused, the Court remarked that “[w]hen a failure to disclose deprives an accused of the opportunity to seek the exclusion of evidence, the right to make full answer and defence may be affected notwithstanding that the failure may not have a more direct effect on the issue of ‘guilt or innocence’” (¶29).

[80] I pause to note that I recognize the trial judge did go on to consider whether the state conduct in this case amounted to an abuse of process, albeit after he concluded the R. v. Dixon analysis. This poses the question of whether it could be inferred from his reasons that he considered the impact of the late disclosure on Sandeson’s ability to advance a process-oriented response to his charges.

[81] In my view, such an inference cannot be made. When the judge was considering abuse of process, he asked whether the appellant would ever be successful in an abuse of process claim (VD7 Decision, ¶124). With respect, this is not the correct question. The question should have been whether the defence lost a realistic opportunity to investigate and advance a process-oriented response – a response directed at trial fairness and abuse of process considerations.

[82] In failing to ask the latter question, he imposed on Sandeson a higher threshold than was required by law, similar to what the Supreme Court of Canada found the Court of Appeal of Quebec did in R. v. Taillefer, 2003 SCC 70.  LeBel J. reviewed the Quebec Court of Appeal’s decision in detail and concluded that their focus on whether the disclosure of a piece of evidence would have changed the jury’s decision on whether the accused’s statement was free and voluntary was too narrow.  The appeal court should have also considered whether there was a reasonable possibility the failure impaired the overall fairness of the trial:

[103] ... The mere reasonable possibility that the discrepancies between the notes of the coordinators Cossette and Pelletier and the testimony of the officers Charette and Leduc could be used to impeach the officers' credibility, or to raise a doubt as to whether the accused's statement was voluntary, is all that is needed for it to be possible to hold that there was a reasonable possibility that the failure to disclose impaired the overall fairness of the trial.

[88] The trial judge’s assessment of the materiality of the undisclosed information, the consequent impact of its late disclosure, and the possible abuse of process concerns should have focused on Sandeson’s reasonable opportunities to investigate and advance a Charter or other process-oriented response.

[90] In my respectful view, the trial judge’s finding that the undisclosed information revealed the police were mere passive recipients of information (¶132133) is not supported on the record. The police did not passively receive information: they successfully encouraged Webb to help them in their investigations and ensured their collaboration remained secret.

[91] The trial judge’s own findings of fact do not support his conclusion. He accepted that, prior to approaching S/Sgt. Lane about his interview with Blades, Webb told him “he was working for Martin & Associates, that Martin & Associates was assisting Sandeson in his defence, that he was convinced of Sandeson’s guilt, and he was concerned that the police were not doing a good job” (VD7 Decision, ¶14). The judge also accepted the facts of the additional encounters between Webb and the police, which included:

  • S/Sgt. Lane offering to connect Webb with the investigators (¶16);
  • S/Sgt. Lane telling Sgts. Boyd and Allison “that Webb’s involvement was to remain confidential” (¶17);
  • S/Sgt. Lane taking such steps while knowing Webb was working for the defence (¶14);
  • Sgt. Allison speaking to Webb and asking him to meet the police at Blades’ home (¶18); and
  • Sgts. Boyd and Allison accepting Webb’s assistance to facilitate interviews of Blades by meeting Blades with Webb for the purpose of “help[ing] Blades feel comfortable in speaking with the police” and “assur[ing] Blades that he was doing the right thing and that Sgts. Boyd and Allison were trustworthy” (¶18-19, ¶99, ¶119).

[98] Sgt. Boyd further testified that in late October 2016, “[t]here was no intention” to re-interview Blades and McCabe, that no tasks to re-interview them had been generated, and that the two interviews came about largely because of Webb’s intervention. D/Cst. Sayer confirmed the same thing. Sgt. Allison did as well, agreeing there was no intention to speak to Blades again after his original statement.

[99] ... the facts accepted by the trial judge and supported by the record reveal police officers were active participants in a common venture with Webb to obtain Blades’ statement. The police:

  • knew that Webb worked for the Defence when they received his information;
  • knew that Webb was doing something wrong and that he was violating his duties to the appellant;
  • were completely unconcerned Webb was doing something wrong or that they might come into possession of privileged information;
  • did not seek legal advice on the point notwithstanding the novelty of the situation;
  • told officers to call Webb;
  • actually called Webb;
  • assured Webb his name would be kept out of police records;
  • told officers to keep his identity confidential;
  • asked Webb to meet them at Blades’ home;
  • met Webb at Blades’ home; and
  • delivered on their assurances to keep his name out of police records.

[100] All of which allowed the police to take advantage of Webb’s assistance in obtaining Blades’ statement and to benefit from the rapport Webb had built up with Blades. This was nothing less than a collaborative effort between the police and Webb.

[105] Returning to the police conduct in this matter – does it amount to an abuse of process? At this point it is important to recall that a finding of an abuse of process by the trial judge was neither requested nor necessary. Sandeson only had to show there was a reasonable possibility the late disclosure of the evidence foreclosed realistic opportunities to investigate this issue and advance an abuse of process claim at a new trial.

[106] In my view, Sandeson had crossed that threshold and a mistrial should have been ordered. It would be entirely possible for a judge to find the police conduct revealed by the undisclosed information could amount to an abuse of process. I will explain why. However, the determination of whether it amounts to an abuse of process is for the judge hearing the new trial. My comments here are only to illustrate a viable argument can be made. Whether it will be successful is not for me to decide.

Abuse of Process at New Trial?

[108]   In R. v. Babos, Moldaver J., for the majority, elaborated on what type of conduct is caught by the residual category:

35      By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.[Emphasis added]

[110]   What occurred here is unique.  The parties and this Court were unable to find any cases where a situation like this has occurred before. 

[111]   Appellate counsel provided this Court with the Australian case of A.B. v. C.D.; E.F. v. C.D., [2017] VSCA 338 (Supreme Court of Victoria – Court of Appeal) aff’d [2018] HCA 58 (High Court of Australia). That case largely dealt with whether public interest immunity should bar disclosure of the identity of a defence lawyer who became a police informer and informed on her now-convicted clients. Before balancing the public interest in disclosure and in preventing harm to the lawyer and her children should her identity be disclosed, the Court had to determine whether the convicted individuals would be able to use the information about the lawyer’s duplicitous role to challenge their convictions.

[112]   The applications judge found that the convicted persons could do so by arguing that:

[T]hey did not receive a trial as required by the criminal justice system and that the trials involved an abuse of process, because … their legal counsel did not provide independent advice. The requirements of a fair trial include that counsel will provide independent advice to a client and will not have separate obligations to the police who have brought the prosecution.…

The dual role EF played might assist Peters in having his convictions set aside, despite his plea of guilty. He was not given independent advice and EF was obliged to inform him of anything that might assist him. The Director’s disclosures may therefore provide him with substantial assistance in establishing that the proceedings against him involved an abuse of process because of the invasion of his right to have his legal representative act solely in his best interests and not assist the prosecution. Those arguments might assist him establish that a miscarriage of justice had occurred.[Emphasis added]          (A.B. v. C.D.; E.F. v. C.D. VSCA, ¶111, ¶114 citing the application judge’s decision).

[113]   The Court of Appeal agreed, finding that the convicted individuals could challenge their convictions by arguing: (1) that they did not receive “independent advice and representation as required by law”; and (2) that “the prosecution was unfairly advantaged and/or had access to evidence and information which was improperly obtained in ways which gave rise to a miscarriage of justice” (A.B. v. C.D.; E.F. v. C.D. VSCA, ¶112). Although constituting “different conceptual bases” for challenging the convictions (A.B. v. C.D.; E.F. v. C.D. VSCA, ¶113), both arguments were articulated as being grounded in the fact that the lawyer had breached legal professional privilege and her other professional duties (of loyalty, of confidentiality, and to avoid conflicts of interest). One ground focused on the accused’s fair trial rights and right to independent legal advice; the other, on the state conduct of obtaining information subject to legal professional privilege (A.B. v. C.D.; E.F. v. C.D.VSCA, ¶105-115).

[114]   That it was the lawyer’s breach of her duties and the breach of privilege that grounded both bases for challenging the conviction was also affirmed by the High Court of Australia where it stated at ¶10:

[10]  Here the situation is very different, if not unique, and it is greatly to be hoped that it will never be repeated. EF’s actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of EF’s obligations as counsel to her clients and of EF’s duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system. It follows, as Ginnane J and the Court of Appeal held, that the public interest favouring disclosure is compelling: the maintenance of the integrity of the criminal justice system demands that the information be disclosed and that the propriety of each Convicted Person’s conviction be re-examined in light of the information. The public interest in preserving EF’s anonymity must be subordinated to the integrity of the criminal justice system.[Emphasis added]

[115]   Put otherwise, the abuse of process stemmed from police abuse of the “agency of police informer” (A.B. v. C.D.; E.F. v. C.D. HCA, ¶12) by allowing someone with various obligations to the accused persons as her clients to become an informer in the first place.

[117] However, it is possible a court may find, even without resort to litigation privilege or confidentiality considerations, it offends society’s sense of fair play and fundamental notions of justice for the state to accept assistance of a professional in the investigation and prosecution of an accused when that professional is currently retained by that accused for the purpose of helping him defend himself against the state. Once again I wish to make clear I am not deciding the issue but only illustrating such an argument is neither fanciful nor doomed to fail.

[118] The state conduct in the present case (detailed in ¶91-100 above) could, arguably, be found to affront society’s sense of fair play and undermine the integrity of the justice system.

[119] To begin, by accepting and using Webb’s information that Webb only possessed because he was asked by defence to interview Blades and McCabe, aspects of defence trial preparations were disclosed to the police, and then used to the state’s advantage without the knowledge of the person affected: the accused.

[121] Before concluding on this point, I would like to address the trial judge’s question to himself about “What should the police have done in these circumstances? (VD7 Decision, ¶138).

[122] There are any number of things the police could and should have done differently in these circumstances. There is no reason why the police should not have told Webb he could not disclose aspects of defence trial preparations. The police should have immediately notified the Crown of Webb’s actions so that the Crown could then alert the defence to what Webb had done. Instead, Sandeson’s lawyers were left completely in the dark, oblivious to the fact the private investigator they had hired, and with whom they had shared defence strategies, was covertly informing the police, in a relationship the police kept secret.

[123] There are other situations wherein the police must stay away from evidence, such as statutorily compelled evidence obtained after the commencement of a penal investigation (see e.g. R. v. Jarvis, 2002 SCC 73 and R. v. Ling, 2002 SCC 74).  They also cannot accept assistance from professionals such as auditors exercising statutory powers to gather evidence (see e.g. R. v. Williams (1994), 1994 CanLII 4493 (NS SC), 130 N.S.R. (2d) 8 (N.S.S.C.) and R. v. Mercer, 2005 NLCA 10 (albeit in obiter)).

[124] Considering all the above, there is the potential that a court may find the undisclosed information constituted a residual category abuse of process.


[125] The trial judge erred in focusing on the materiality of the undisclosed information and the extent to which it related to the merits of what did or did not happen on August 15, 2015. He should have asked himself whether the late disclosure of this information foreclosed realistic opportunities to investigate and advance a process-oriented defence. The trial judge also erroneously asked whether the appellant would be successful in an abuse of process claim when that was not an issue before him.

[126] In my view, the undisclosed information revealed the state knowingly encouraged and then accepted the assistance of a professional in the investigation and prosecution of an accused when that professional was, at the time, retained by that accused for the purpose of assisting him in defending himself against the state. This conduct could be said to have undermined the essence of procedural protections given to the accused The significance of Webb’s involvement with the police was not “relatively low” contrary to the trial judge’s finding (VD7 Decision, ¶68).

[127] The late disclosure of the collaboration between Webb and the police precluded the “realistic opportunit[y] to explore possible uses of the undisclosed information [namely, as it related to the state conduct] for purposes of investigation and gathering evidence” (R. v. Dixon, ¶36) related to an abuse of process claim. Contrary to the judge’s finding (VD7 Decision, (¶68) that the infringement of Sandeson’s right to a fair trial was insignificant, the late disclosure of this information significantly infringed Sandeson’s right to make full answer and defence and to a fair trial.

[129] The trial judge thought an adjournment and additional cross-examination would be an adequate remedy. As the analysis above demonstrates, this remedy was based on a mischaracterization of the police conduct and the nature of the infringement, and a consequent understatement of the gravity of such infringement. Because of these errors, the trial judge’s choice of remedy deserves no deference.

[131] The degree and nature of the prejudice suffered by the accused from the late disclosure becomes very relevant at the remedy stage (Dixon, ¶35).

[132] In this case, applying the required “context-dependent” analysis (R. v. Korski, ¶93), I am of the view that an adjournment and further cross-examination was inadequate for four reasons.

[133] First, the reasons above make clear the undisclosed information did not relate to an existing issue at trial but rather to a new issue—not only in the proceedings against the accused, but also in Canadian law. The trial judge himself described the situation as “so peculiar”, “unique”, and “very unusual” (VD7 Decision, ¶58, ¶85, ¶136, ¶142).

[135] Second, the defence did not have time during the trial to properly investigate this issue and decide how to deal with it. As for the novelty of the situation and how difficult it was for the parties to even conduct enough research and investigation to support the mistrial request, the record speaks for itself.

[137] On every single sitting day but two (May 10 and May 30), the defence had to deal with multiple Crown witnesses called in the trial proper. On almost half of the sitting days (May 9, 10, 17, 29, 30, 31), the defence also called its own witnesses, whether in relation to Voir Dire 7, 7B or 10. Portions of Voir Dire 7 and 7B occurred on the same day as resumptions of trial or Voir Dire 10 on 8 of the 13 days (May 9, 10, 16, 17, 25, 29, 30, 31).

[141] The record is replete with examples of how the legal issues raised by the undisclosed evidence were evolving and how the parties’ positions were unknown and were evolving out on a day-to-day basis.

[151] The numerous issues and manner of proceedings left little time for counsel to investigate and research the issues raised by the undisclosed evidence. The detrimental effect of trying to deal with all of these demands at once was summarized by defence counsel in the Voir Dire 7 closing submissions. In response to a question asked by the judge, defence counsel submitted that “part of the problem” with respect to why they have not been able to find relevant cases was that “[b]ecause of the way disclosure has unfolded, Defence mid-trial is scrambling to address a number of issues. The entire order of the trial has been thrown out-of-whack”. Defence counsel tried to do some research over lunch in response to the judge’s question but needed more time. Even on the final day of submissions in Voir Dire 7 on May 31, the defence was still unsure as to what remedy they would seek in a Charter application at a new trial.

[156]   Third, the length of the adjournment needed in this case to permit meaningful investigation and, therefore, to preserve the accused’s right to a fair trial and to make full answer and defence would have been substantial. Long adjournments are not feasible mid-jury trial (see e.g. R. v. Antinello where the Court of Appeal agreed with the trial judge that “[a] long adjournment was not practical because the case had already been placed in the charge of the jury” (¶13); see also R. v. Gakmakge, 2015 QCCA 314, ¶40).

[157]   Fourth, on the facts of this case, failing to give the defence an opportunity (that is, failing to grant a mistrial) to investigate and research circumstances that may amount to an abuse of process itself compromised the integrity of the justice system and perpetuated an unfair trial process. It also created the appearance of unfairness.

[158]   The late disclosure precluded the defence from being able to fully explore and investigate this unprecedented situation and decide, prior to trial, whether to bring an abuse of process application. While the judge and the Crown suggest the defence could have made an abuse of process argument mid-trial, the record shows that forcing them to do so would have been unreasonable and unfair.

[159]   The defence was simply not able to investigate this novel issue mid-trial. They were juggling the trial proper and multiple voir dires. They were coming up with submissions on the fly. They were reading cases over the lunch break. They needed time; time that was unavailable in the middle of a jury trial where lengthy adjournments are not appropriate. The novelty and complexity of the situation which amounted to a potential abuse of process arising as it did in the middle of a jury trial, is exactly the type of an “extreme” situation contemplated by Supreme Court of Canada jurisprudence such as R. v. O’Connor, ¶77 and R. v. Bjelland, ¶23-27 which demands a remedy more drastic than an adjournment. Put otherwise, to be “responsive to the circumstances of the breach of the accused’s disclosure rights” (R. v. Korski, ¶93), a mistrial was required.

[160]   For the reasons above, I would allow this ground of appeal, quash the conviction, and order a new trial.

R v Johnson (ONSC) 

[June 11, 2020] Defence Adducing the Statement of the Accused - The R v Edgar Exceeption - 2020 ONSC 3672 [Mr. Kofi Barnes]

AUTHOR’S NOTE: The advice of counsel on arrest is invariably: "Say nothing except your name and date of birth."  This is grounded in law that prevents an accused from adducing anything he says to his own benefit.  Only admissions against his interest are admissible - for the Crown. The Edgar exception puts that assumption on its head.  The accused's statement is admissible if their response to accusation of a crime is spontaneous.  The emotional content of the spontaneous reaction is admissible for the court's consideration. Of course, it is impossible to advise someone to do this as a lawyer.  To do so would invite perjury (the reaction cannot be spontaneous once the advice is given).  

Pertinent Facts

[5] Mercedes Doyle, Mr. Johnson’s former girlfriend, testified that Mr. Johnson told her that he and Mr. Ireland went to meet Mr. Merizzi to rob him.

[6] At some point, Mr. Ireland and Mr. Johnson entered Mr. Merizzi’s vehicle. Mr. Merizzi testified that the marijuana transaction went awry. Mr. Ireland then stabbed him and Mr. Chavez multiple times. Mr. Merizzi also testified that he was tasered during the altercation.

[7] The jury heard medical evidence that Mr. Chavez died from injuries sustained from the forceful application of a sharp object, such as a knife. The jury also heard evidence that Mr. Merizzi’s injuries were caused in a similar manner by a similar object. Mr. Ireland has conceded that he stabbed Mr. Chavez and Mr. Merizzi. He concedes that he is guilty of manslaughter, not second-degree murder or attempted murder.

Mr. Johnson's Police Interview

[9] On October 20, 2017, the date of his arrest, Mr. Johnson was interviewed by Constable Colthurst. The interview began at 11:55 a.m. and lasted until 11:06 p.m., almost 12 hours.

[18] Just before 2:25 p.m., Constable Colthurst told Mr. Johnson that they had had a good conversation thus far and that it was now time to answer questions about what happened to “the kid” (Mr. Chavez). Constable Colthurst asked Mr. Johnson if he told Mercedes anything about what happened to “the kid”. Mr. Johnson said he did not. Constable Colthurst asked Mr. Johnson what he would say if he was told that Mercedes said she knew about “the kid” getting killed. At this time, Mr. Johnson repeated his lawyer’s advice not to say anything. Constable Colthurst persisted. Mr. Johnson repeated his lawyer’s advice and asked if he could speak to his lawyer again. Constable Colthurst denied the request. He reminded Mr. Johnson that he had already spoken to a lawyer.

[32] Constable Colthurst then asked Mr. Johnson if he told Mercedes anything. Mr. Johnson said no. Constable Colthurst pivoted and asked questions about Mercedes’ background. This phase of the conversation concluded with Constable Colthurst’s comment that a good person from a good family would be honest in reporting details to the police of what they had seen at a murder scene. Mr. Johnson said he did not tell Mercedes anything. Constable Colthurst told Mr. Johnson that Mr. Johnson had given Mercedes information about the murder. Mr. Johnson insisted that he did not and repeated that his lawyer told him not to say anything. Constable Colthurst asked Mr. Johnson how Mercedes knew details about the murder. Mr. Johnson said he did not know. He did not tell her anything. He then repeated that his lawyer had told him not to say anything.

[33] Constable Colthurst told Mr. Johnson that Mercedes had been very cooperative with police and had provided details about the incident that the public did not know. Mr. Johnson told Constable Colthurst that he did not tell Mercedes anything about the incident. Mr. Johnson then requested to speak with a lawyer. Constable Colthurst denied the request and continued asking questions. At approximately 4:04 p.m., he again asked Mr. Johnson why Mercedes would know details about the murder that the public did not know. Mr. Johnson repeated his lawyer’s advice that he not say anything.

[34] At 4:05 p.m., Constable Colthurst was direct. He told Mr. Johnson that there is no way Mercedes would have the information she had unless someone who was there told her. Mr. Johnson again said that he did not tell Mercedes anything. Constable Colthurst suggested that he must have told her something. He also suggested that Mercedes would not lie to the police. Twice, Mr. Johnson repeated the advice of his lawyer not to say anything.

[41] At 5:00 p.m., Mr. Johnson told Constable Colthurst that he wanted to provide information, but he was scared. He inquired whether the police could keep him safe. Constable Colthurst said that the police would keep him safe. Mr. Johnson said he did not kill anyone. He said he was scared. Constable Colthurst encouraged him to provide information.

[42] Just after 5:05 p.m., Constable Colthurst encouraged Mr. Johnson to provide information by analogizing to a countdown just prior to plugging into cold water. Just before 5:10 p.m., he initiated a countdown by counting backwards from three. Mr. Johnson began to provide the portion of the statement where he detailed his involvement.

[43] Mr. Johnson told Constable Colthurst that his cousin, Mr. Ireland, arranged to buy an ounce of marijuana from the driver of the vehicle. In the vehicle, Mr. Ireland grabbed the drugs from the driver’s hand. The driver asked for payment a few times, and Mr. Ireland slowly counted the money. Mr. Ireland was slow to give the money, so the driver began driving fast around the parking lot. Mr. Johnson said that Mr. Ireland said, “run your shit”, which means you are getting robbed. Mr. Johnson said he was scared, and that Mr. Ireland was freaking out and screaming “stop the car”. He said Mr. Ireland was scared and angry at the same time. Mr. Johnson told the police that neither he nor Mr. Ireland had any intention of going to rob and kill the victims.

[44] Mr. Johnson told Constable Colthurst that Mr. Ireland stabbed the passenger and the driver. Somehow, Mr. Ireland reached out and removed the car key, causing the vehicle to stop. The two other males on the bicycles then tried to open the door for them. He and Mr. Ireland got out of the vehicle and ran away from the scene together with the other two males.

[45] Mr. Ireland told them that if anyone disclosed what happened, he would kill them. Mr. Johnson said he was scared of Mr. Ireland. Mr. Johnson told Constable Colthurst that he did not know the names of the two men who opened the car door for him and Mr. Ireland to exit the vehicle. He described the two men as Mr. Ireland’s guys. Mr. Johnson said that afterwards, he and Mr. Ireland parted ways with the two men on bicycles.

[46] Mr. Johnson admitted to Constable Colthurst that he told Mercedes what happened. He denied telling her that he and Mr. Ireland had a plan to rob the drug dealer. He said he had seen Mr. Ireland with a lot of money, so there was money to pay for the marijuana. He said he had no idea Mr. Ireland had a knife and that there was no plan to stab anyone.

[47]... He eventually said that Mr. Ireland gave him the taser in the car and that he had used it on “the big guy” (Mr. Chavez) when he grabbed Mr. Johnson. He admitted telling Mercedes this. Mr. Johnson said he threw the taser away as he ran away from the scene. He said that Mr. Ireland asked for his taser back. Mr. Johnson also admitted that Mr. Langaigne was one of the two men on the bicycle that day. He eventually admitted that Mr. Thompson was the second male on the bicycle.

The Edgar Exception

[50] The issue on this motion is whether Mr. Johnson should be permitted to lead his exculpatory prior consistent statement before the jury under the Edgar exception.

[51] An exculpatory in-custody statement is a prior consistent statement that is presumptively inadmissible: R. v. Rojas2008 SCC 56 (CanLII), [2008] 3 S.C.R. 111, at para. 36. This rule is subject to a number of exceptions. Mr. Johnson relies on the Edgar exception as outlined in R. v. Edgar2010 ONCA 529, leave to appeal refused, [2010] S.C.C.A. No. 466.

[52] Under the Edgar exception, a defendant may lead a prior consistent statement when: 1) the defendant testifies and is subject to cross-examination; 2) the statement was made when the defendant was first arrested and accused of the crime; and 3) the statement was spontaneous. Under such circumstances, the exculpatory statement is not admissible for the truth of its contents. Rather, it is admissible to show the defendant’s reaction when first confronted with the allegations. The trier of fact can then consider the statement to assess the credibility of the defendant: Edgar, at para. 50.

[53] The rationale for the Edgar exception and an explanation of how an admissible prior consistent statement may be used is aptly explained at paras. 67, 72 of Edgar:  

I conclude, therefore, that it is open to a trial judge to admit an accused's spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination. As the English cases cited above hold, the statement of the accused is not strictly evidence of the truth of what was said (subject to being admissible under the principled approach to hearsay evidence) but is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence.

[54] Thus, it is the spontaneity of the exculpatory statement, such as to exemplify the absence of an opportunity to concoct, that gives the statement probative value and justifies its admission.

[55] The first event in the spontaneity analysis is when the accused is first confronted with the accusation of the crime: Liard, at para. 56. A contextual approach is adopted to determine whether an exculpatory statement was provided spontaneously. This is explained in Liard, at para. 63, as follows:

No single consideration, no single point in time, determines whether the spontaneity requirement has been met. The passage of time between the crime and the accused's reaction to an accusation of committing it, and any intervening events, are undoubtedly relevant. But spontaneity lies along a spectrum. And along that spectrum, the degree of spontaneity may vary. In Edgar itself, the accused made three statements -- the third, four hours after he was arrested. Sharpe J.A. held that all three statements were admissible. In R. v. Johnson, 2010 ONCA 646, 262 C.C.C. (3d) 404, in an obiter comment at para. 71, Rouleau J.A. said he would have admitted under the Edgar exception a statement given by the accused on arrest, even though the arrest took place more than a month after the victim's disappearance and over a week after her body was discovered.

[56] It stands to reason that a circumstance where the defendant has had a chance to “think things out” prior to making the exculpatory statement will ordinarily not satisfy the spontaneity requirement. The probative value of the statement arises in circumstances where the opportunity to fabricate is low. Thus, the statement has the ability to truly reflect the defendant’s honest and genuine reaction to the allegation upon arrest or when first confronted with accusations of the crime. Spontaneity is one of the lynchpins of the Edgar exception.

[57] Therefore, a prior consistent statement made in circumstances that reveal an opportunity to fabricate suggests the absence of spontaneity. Such a statement has no probative value: R. v. Badhwar, 2011 ONCA 266, at paras. 21-22; R. v. Kailayapilla, 2013 ONCA 248, at paras. 58-61.

[58] In circumstances where spontaneity is lacking, the statement may be excluded. Where spontaneity is in doubt, the trial judge should admit the statement and allow the jury to assess its weight. Under such circumstances, the degree of spontaneity can be explored in cross-examination. This will assist the jury in determining what weight to place on the statement: Edgar, at para. 69; Liard, at para. 64; Badhwar, at para. 20.

[59] Under such a circumstance, as instructed in Edgar, at para. 72, the jury should be instructed that:

  •      The statement is not evidence of the truth of what was said by the accused;
  •      The statement is evidence of the reaction of the accused when confronted with the crime, which is relevant to his credibility and can be used for the purpose of assessing his credibility; and
  •      The statement is circumstantial evidence that the jury can use to determine the guilt or innocence of the accused.

[60] Concerns about fabrication can be dealt with by cross-examination and by looking at the degree of spontaneity the proffered statement exhibits: Edgar, at para. 69.


[64] As mentioned, the defence argues that the countdown is the starting point of any spontaneity analysis. I have viewed the videotaped interview in its entirety. I observed Mr. Johnson to be simultaneously scared, manipulative and dishonest. I watched him bond with and trust Constable Colthurst. As a result of this bond and trust, Mr. Johnson exhibited an ever-increasing and clearly expressed internal conflict between speaking to Constable Colthurst and heeding his lawyer’s advice to remain silent.

[67] ... However, the trial judge in Liard considered the Edgar exception, evidence was called on the issue, and a contextual approach was applied to the “time to think it out” criterion.

[68] In Liard, Ms. Liard was acquitted on a charge of the first-degree murder of a 13-year-old girl. Her co-accused and boyfriend, Rafal Lasota, was convicted of first-degree murder. The victim was murdered in Mr. Lasota’s bedroom. Ms. Liard was outside the bedroom at the time.

[69] ... Ms. Liard invited Monika outside for a cigarette during the murder. Part of the Crown’s theory was that she took this action so that Monika would not hear Mr. Lasota killing the victim. Ms. Liard denied blocking Artur Dziura from going to Mr. Lasota’s room to investigate stomping noises that had awoken him.

[70] After the murder, Ms. Liard helped Mr. Lasota cover-up the murder. She washed bloody clothes and lied to Monika, telling her that the victim had gone home. She asked Monika and Artur not to call the police.

[71] Ms. Liard stayed with Mr. Lasota in his bedroom until his mother arrived. His mother confronted him until he confessed to killing the victim. His mother called the police. Ms. Liard and Mr. Lasota fled. Later, they separated. Ms. Liard went to her grandmother’s home where, in plain view, she left a self-serving note. In the note she said that Mr. Lasota had murdered one of her friends. She had nothing to do with it. She was scared and the police would not believe her. She said her life was in jeopardy. The police located Ms. Liard 12 hours after the victim had been murdered. She accompanied police to the station as a potential witness where she provided a statement. In the statement, she said that Mr. Lasota had committed the murder. She also described her role in the cover-up. She was ultimately charged with first-degree murder.

[72] The appellate court made a distinction between a demand to know what had happened and a confrontation with a crime. In Liard, at paras. 60-61, the court notes:

Monika Lasota and Dziura confronted Liard and Lasota and demanded to know what had happened to Aleksandra, but they did not accuse Liard of participating in her murder. Teresa Lasota questioned her son and eventually her questions became accusatory. She asked him, but not Liard, “if he killed that girl”. Teresa Lasota’s accusatory confrontation with her son does not help in evaluating Liard’s reaction to the police’s accusation of criminal wrongdoing.

I would answer this first question “no”. The trial judge did not err in finding that Liard was first confronted with an accusation of committing a crime during her police interview.

[73] The trial judge’s contextual approach to the spontaneity requirement was summarized with approval in Liard, at paras. 65-68, as follows:

The trial judge applied these principles in finding that Liard had met the spontaneity requirement. […] […] The trial judge expressly considered the gap of 13 hours between the time Lasota killed Aleksandra and the time Liard began her police interview, and he expressly considered that before her interview Liard had a chance to “think things through” and write a self-serving note to her grandmother.

Yet the trial judge found Liard’s reaction during his police interview, and particularly to the charge of murder, to be spontaneous. That was a reasonable finding and is supported by several considerations.

•           The trial judge had the advantage we do not of watching Liard’s trial testimony and comparing it to her police interview. He was persuaded that Liard’s police statement conveyed her evidence powerfully. At para. 280 of his ruling he said: “I had the strong impression that we were getting far more of the “real Michelle Liard” during the police statement than during her testimony.”

•           Initially, Liard was questioned not as an accused, but as a witness. Moreover, during a good part of her interview, especially up to the time she was charged with murder, Liard was not trying to exculpate herself. Instead, she gave quite incriminating evidence about her role in cleaning up the murder scene.

•           Liard was only 19 years old when she was questioned by the police.

•           Part of her statement was corroborated by Aleksandra’s diary.

•           The trial judge concluded that “the police statement is rich in details” and “contained significant emotional content”.
All these considerations reasonably supported the trial judge’s finding that “the police statement is, on its face, spontaneous”. I am not persuaded we should interfere with this finding, which the trial judge himself recognized was a “close call”.

[74]       In this case:

•               Mr. Johnson was young. He had no previous experience with the police;

•               He was confronted with his involvement in the crime in a skillful and systemic manner;

•               His interviewer skillfully established a relationship of trust and bonded with Mr. Johnson;

•               Mr. Johnson had the opportunity to make up a story prior to his arrest some three days after the crime and during the many times he asserted his right to silence;

•               The effect of the skillful technique used was that Mr. Johnson’s several assertions of his right to silence became an integral part of his reactions to statements about the crime;

•               Mr. Johnson exhibited a series of interwoven emotions and traits, including fear, dishonesty, an ability to be manipulative and to be selective in telling the truth;

•               The statement Mr. Johnson seeks to introduce is not particularly a model example of an exculpatory statement. His excessive displays of dishonesty and manipulation can be viewed as incriminating.

[76] In describing this as a chess game, when a contextual approach is adopted, it is surprising to discover that the multiple phases of questions and answers are so interwoven and inter-connected that it is difficult to arrive at a definitive conclusion on the spontaneity issue. I am left in a state of doubt on the issue. As mentioned, where spontaneity is in doubt, as it is here, the trial judge should admit the statement and allow the jury to assess its weight: Edgar, at para. 69; Liard, at para. 64; Badhwar, at para. 20.

[77] I therefore find that the statement is circumstantial evidence the jury can use to assess Mr. Johnson’s credibility. It will give the jury an opportunity to assess Mr. Johnson’s reaction when he was confronted with his involvement in the crime. This is likely a more accurate portrayal of Mr. Johnson’s reaction than his in-court testimony some years later.

[78] ... The Crown and the defence have therefore agreed to excise any comments Mr. Johnson made about Mr. Ireland’s agreed discreditable conduct from the statement.

[79] As a condition of admission, Mr. Johnson is also required to testify. Therefore, there shall be ample opportunity for the Crown and Mr. Ireland’s counsel to cross-examine him on the statement. In his statement, Mr. Johnson has provided several topics for effective cross-examination to challenge his credibility and for counsel to explore if they so choose.

[80] For all these reasons, I find that the probative value of admission outweighs any prejudicial effect. In addition, for reasons already articulated, a contextual assessment of the statement leads me to conclude that there is a potential for a miscarriage of justice if the statement is not left for the jury’s consideration.

[81] Mr. Johnson’s application to lead his prior consistent exculpatory statement before the jury under the Edgar exception is therefore granted.

[82] For the reasons outlined above, the application is allowed. As mandated by Edgar, at para. 72, the jury shall be instructed as follows:

  • The statement is not evidence of the truth of what was said by the accused;
  • The statement is evidence of the reaction of the accused when confronted with the crime, which is relevant to his credibility and can be used for the purpose of assessing his credibility; and
    The statement is circumstantial evidence that the jury can use to determine the guilt or innocence of the accused.

[83] Thus, the jury shall be instructed that they may use the statement to assess the degree of consistency between Mr. Johnson's statement to the police  and his evidence at trial. They may use his statement to assess his credibility but shall not consider Mr. Johnson’s statement for the truth of its contents.

[84] The jury shall have the opportunity to watch the videotaped statement and have the benefit of counsels’ cross-examinations of Mr. Johnson. In addition, the jury shall be instructed that it is up to them to determine what weight to give to Mr. Johnson’s statement.

R v Robertson (ONCA)

[June 11, 2020] – Sentencing: Restitution and the Means To Pay – 2020 ONCA 367 [Hoy, MacPherson and Tulloch JJ.A.]

AUTHOR’S NOTE: In the waning year of the Harper conservative government, Federal Parliament passed the following provision into law:

 The offender’s financial means or ability to pay does not prevent the court from making an order under section 738 or 739.

Prior to this, the offender's financial means or ability to pay were a significant consideration in any order to pay restitution.  This provision brought that consideration into question. However, the court in Robertson applies all the law that applied prior to this amendment. It seems this remains a factor that could prevent a court from imposing an excessive restitution order.

Pertinent Facts

[1] Between September 30 and November 6, 2018, the appellant went on a drug-fuelled rampage in Cornwall, Ontario, which included breaking and entering and robbery of ten establishments, ranging from chip stands and food trucks to a convenience store to Pet Valu, a larger commercial establishment.

[2] He pled guilty to two counts of robbery, eight counts of breaking and entering, attempt break and enter, dangerous operation of a motor vehicle, failure to comply with a probation order, two counts of failure to comply with a recognizance, possession of a break-in instrument, and disguise with intent.

[3] Consistent with the joint submissions of the Crown and counsel for the appellant at the sentencing hearing as to the length of imprisonment, the sentencing judge imposed a global sentence of four and one-half years’ imprisonment. She also made orders under s. 738(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46, which require the appellant to pay restitution in the total amount of $15,698.34 to some of the persons whose property he damaged.

[4] The appellant argues that the sentencing judge erred by failing to consider whether the appellant had the ability to make restitution before imposing orders under s. 738(1)(a) and that the orders under s. 738(1)(a) will likely impair his chances of rehabilitation. He submits that the restitution orders should be set aside.

[5] We agree.

[6] A restitution order forms part of a sentence. It is entitled to deference and an appellate court will interfere with the sentencing judge’s exercise of discretion only if there is an error in principle, or if the order is excessive or inadequate: R. v. Devgan (1999), 1999 CanLII 2412 (ON CA), 136 C.C.C. (3d) 238 (Ont. C.A.), at para. 28, leave to appeal refused, [1999] S.C.C.A. No. 518; R. v. Castro, 2010 ONCA 718, 102 O.R. (3d) 609, at para. 22. 

[7]  An order for compensation should be made with restraint and caution: Devgan, at para. 26, citing The Queen v. Zelensky, 1978 CanLII 8 (SCC), [1978] 2 S.C.R. 940.

[8] While the offender’s ability to make restitution is not a precondition to the making of a restitution order, it is an important factor that must be considered before a restitution order is imposed. A restitution order made by a sentencing judge survives any bankruptcy of the offender: Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 178(1)(a). This means it is there for life. A restitution order is not intended to undermine the offender’s prospects for rehabilitation. This is why courts must consider ability to pay before imposing such an order: Castro, at paras. 26-27; R. v. Popert, 2010 ONCA 89, 251 C.C.C. (3d) 30, at para. 40, citing R. v. Biegus (1999), 1999 CanLII 3815 (ON CA), 141 C.C.C. (3d) 245 (Ont. C.A.), at para. 15. It is not enough for the sentencing judge to merely refer to or be aware of an offender’s inability to pay. The sentencing judge must weigh and consider this: Biegus, at para. 22.

[10] In response, counsel for the appellant at the sentencing hearing submitted:

Just with respect to the restitution I’ll ask – if the court is going to impose restitution, it would be 738 orders, given that he’s not going to be in any position to pay…any restitution for the next few years.

[11] While the sentencing judge’s reasons explain how she calculated the amount of the restitution orders (and she did so carefully), they do not contain any analysis of the appellant’s ability to make restitution or of the impact of the orders on his prospects for rehabilitation. During the appellant’s counsel’s sentencing submissions, the sentencing judge inquired whether the appellant had “ever worked”. Respectfully, however, she did not conduct a meaningful inquiry into the appellant’s ability to pay and the impact of the restitution orders on the appellant’s prospects for rehabilitation. In failing to do so, she erred in principle.

[13] The aggregate amount of the restitution orders is significant to someone in the appellant’s circumstances. On release, the appellant will continue to have to battle his addictions as he seeks to become a productive member of society and provide support to his young daughter, and he will do so without the benefit of higher education and hampered by a criminal record.

[15] In our view, the restitution orders made undermine the prospects for that rehabilitation.

[16] Accordingly, the appeal is allowed and the restitution orders are set aside.