The Defence Toolkit – March 23, 2024: Guns Exclusion on Rights to Counsel

This week’s top three summaries: R v Whittaker, 2024 ONCA 182: 24(2) on rights to #counsel, R v RI, 2024 ONCA 185: bare #denial & collusion, and R v PA, 2024 BCCA 93: #isolating evidence.

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R v Whittaker, 2024 ONCA 182

[March 13, 2024] Charter s. 24(2): Right to Counsel Violations - Seriousness of Violations / Impact on Accused [Reasons by J. George J.A. with Janet Simmons and K. van Rensburg JJ.A. concurring]

AUTHOR’S NOTE: This case is a very useful one in any Charter submissions exclusion stemming from s.10(b) violations. Where violations do not lead to the discovery of evidence, the tendency of courts is to not apply meaningful consequences in the case. This case fights back against the long-term impact on the administration of justice from such individual decisions. Here, despite the s.10(b) violations not leading to evidence, firearm evidence was excluded because of a police failure to follow basic s.10(b) principles. The trial judge's interpretation of these violations as unintentional, understandable, and harmless were overturned on appeal on the basis that a complete failure to facilitate contact with counsel before a JP bail hearing was held was very serious and had a serious impact one the accused. Trial courts are not permitted to speculate to provide understandable reasons for a failure to provide Charter rights to counsel by police. The language on the 24(2) analysis is particularly useful for further cases.

[1] The appellant was convicted of robbery with a firearm, pointing a firearm, carrying a concealed weapon, possessing a loaded restricted firearm, possessing a firearm with an altered serial number, and unauthorized possession of a firearm.

[3] The appellant appeals his convictions. He argues that, after concluding that his s. 10(b) Charter rights were breached, the trial judge erred in her s. 24(2) analysis and by refusing to exclude as evidence the firearm and ammunition seized upon his arrest: 2018 ONSC 7535. He also argues that the trial judge erred in: 1) finding that his arrest, and two searches conducted incident to his arrest, were lawful; and 2) admitting into evidence certain LCBO surveillance footage without ensuring it was properly authenticated. The appellant asks that we set aside the convictions and enter acquittals. In the alternative, he seeks a new trial.

[4] For the reasons that follow, I would allow the appeal. The trial judge erred in her s. 24(2) analysis relating to the s. 10(b) Charter breach and by admitting the evidence of the firearms and ammunition. After conducting the s. 24(2) analysis relating to the s. 10(b) Charter breach afresh, I would exclude that evidence and substitute acquittals on all counts. Given this conclusion, there is no need to address the remaining grounds of appeal. I will therefore focus my review of the facts on those relevant to the s. 10(b) breach.

C. POSITIONS OF THE PARTIES

[21] As mentioned, the appellant’s primary ground of appeal is that the trial judge erred in her s. 24(2) analysis in relation to the s. 10(b) breach. The appellant argues that, while the trial judge accepted that the police officers did not fulfill their constitutional obligations, she downplayed the seriousness of the police conduct and its impact on his Charter-protected interests. The appellant argues that the trial judge’s unsupported characterization of the police conduct as an “oversight” as a result of a “high adrenaline situation” was speculative and tainted her s. 24(2) analysis, and that her analysis of the second Grant factor was flawed. Should we find that the trial judge erred, the appellant asks that we conduct the Grant analysis afresh, exclude the evidence, and substitute acquittals.

D. ANALYSIS

Section 10(b)

[27] Section 10(b) of the Charter guarantees that everyone arrested or detained has the right to retain and instruct counsel without delay and to be informed of that right. When, after being informed of this right, a detained person seeks to exercise it, subject to few exceptions, such as concerns for officer or public safety, the police must immediately provide them with a reasonable opportunity to speak with counsel: See R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 42. In this case, although the appellant asked to speak with counsel, he was never given the opportunity to do so. The police therefore breached the appellant’s rights under s. 10(b). This is not in dispute.

Section 24(2)

[28] Section 24(2) is not an automatic exclusionary rule that mandates the exclusion of evidence whenever it is collected in an unconstitutional manner. The question is whether the admission of the evidence would bring the administration of justice into disrepute. The answer to this question turns on the seriousness of the Charter-infringing state conduct, its impact on the Charter-protected interests of the accused, and on society’s interest in the adjudication of the case on its merits: Grant, at paras. 71, 102-103.

[29]....A s. 24(2) analysis must focus on the “broad impact [the] admission of the evidence [would have] on the long-term repute of the justice system”: Grant, at paras. 70-73.

[30] Charter violations in the collection of evidence vary on the spectrum of seriousness. On the one end are inadvertent, technical, and minor Charter breaches. On the other end is the reckless disregard of Charter rights as well as systemic patterns of Charter-infringing conduct. The more serious the breach, the more it will pull towards exclusion of the evidence: Beaver, at para. 120; Grant, at para. 74.

[31] On the question of impact, the “extent to which the Charter breach actually undermined the interests protected by the right” must be carefully evaluated: Beaver, at para. 123; Grant, at para.76. The potential impact also falls along a spectrum. The greater the impact, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute. The presence, or absence, of a causal connection between the violation and the evidence sought to be excluded, while not determinative, is a factor to consider at this stage. Like the first factor, the more serious the breach, the more it will pull towards exclusion of the evidence: Beaver, at para. 123.

[32] The third factor, society’s interest in the adjudication of a case on its merits, asks whether the truth-seeking function of the criminal trial process would be better served through the admission or exclusion of the evidence. The more reliable and important the evidence to the Crown’s case, and the more serious the offence, the stronger the societal interest in an adjudication on the merits will be. This factor will almost always pull in favour of admission of the evidence: Beaver, at para. 129; Grant, at paras. 79-83, 115.

[33] All of these factors must be weighed together to assess whether the admission of the evidence would bring the administration of justice into disrepute. Where the first two factors make a “strong case for exclusion”, the third will rarely, on its own, justify admission. That said, “where the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence, the administration of justice will not be brought into disrepute by its admission”: Beaver, at paras. 117, 133-34. As Doherty J.A. put it in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 62 and 63:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interest in an adjudication on the merits, pulls in the opposite direction toward the inclusion of the evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [Citations omitted.]

[34] Even in circumstances where the second factor does not pull strongly towards exclusion, admission may still bring the administration of justice into disrepute. As the Supreme Court held in R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para 141:

[It is] possible that serious Charter-infringing conduct, even when coupled with a weak impact on the Charterprotected interest, will on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute. It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion. [Emphasis in original.]

The Trial Judge’s s. 24(2) Analysis

[35] For the reasons set out below, I conclude that the trial judge made reversible errors in her assessment of the first two Grant factors, and in her conclusion that both favoured the admission of the evidence sought to be excluded.

(i) First Grant Factor – Seriousness of the Charter Violation

[36] Although the officers involved offered no explanation for their complete failure to facilitate the appellant’s communication with counsel, the trial judge concluded that this occurred as the result of an understandable oversight in a high adrenaline situation that was compounded by the appellant’s confusing response to a second inquiry about whether he wished to exercise his right to counsel at the police station. For ease of reference, I repeat her comments, at paras. 103 and 104:

While I am mindful that Constable Alias was unable to provide a verbal explanation for not facilitating the applicant’s phone call to counsel, I do think the circumstances shed some light on the issue. This was a high-risk takedown where a loaded restricted weapon was recovered. This was not just any weapon, it was a sawed-off shotgun. The weapon by its very appearance is menacing. It is common sense that the officers would only start to appreciate the real danger they were in after they located the firearm – adding to an already high adrenaline situation. Although not excusable – it is understandable how this circumstance resulted in Detective Constable Alias’ oversight in facilitating the applicant’s call to counsel.

[37] There are several related problems with this. Most significantly, despite the circumstances of the arrest, Officer Alias was able to restrain the appellant, handcuff him, and read him his rights to counsel. Any immediate danger the officers were in subsided when the arrest was made. Officer Alias testified that he told the appellant why he was under arrest “once everything [was] calm”, referring to the period where the appellant was sitting handcuffed on the bench under officer supervision. He acknowledged that the appellant was compliant with police at this point. Officer Alias was able to advise the appellant of his right to counsel on two occasions, both before and after the firearm was recovered, and then stood by waiting for transport.

[38] The trial judge’s conclusion that the “high adrenaline situation” associated with this “high-risk takedown” somehow contributed to Officer Alias’ failure to subsequently implement the appellant’s s. 10(b) rights following their arrival at the police station amounted to speculation on her part....

[39] Further, Officer Alias did not claim to have been confused by the appellant’s comments about sureties at the police station. He was clear that when asked whether he wished to speak to a lawyer, the appellant’s response was an unequivocal “I do”. The appellant’s desire to access legal counsel could hardly have been any clearer. Once again, the trial judge’s conclusion that the appellant’s comments about sureties at the police station added a layer of confusion to the situation was unsupported by the evidence.

[40] The trial judge’s characterization of the police conduct that gave rise to the breach clearly tainted her s. 24(2) analysis. That is, by characterizing the breach as an “honest mistake” and “oversight”, and thereby placing it at the lower end of the spectrum of seriousness, the trial judge had little choice but to find that the first Grant factor pulled towards admission. In reality, given the complete and unexplained denial of the appellant’s right to speak with counsel over a prolonged period of time – from his arrest around 11:00 p.m., overnight until at least his show cause hearing – the first Grant factor could not have favoured admission. While it was open to the trial judge to find that the breach was unintentional – because it clearly was not deliberate – it was unquestionably the result of extreme carelessness....

....However, the police had a duty to provide the appellant with a reasonable opportunity to speak with counsel without unreasonable delay, but never provided him with an opportunity to do so. Rather than favouring inclusion, the first Grant factor pulled toward exclusion.

[41] Recent decisions from this court support the argument that the breach here could not have been viewed as anything other than serious. In fairness to the trial judge, it is unlikely that she had the benefit of any of these decisions.2

[42] In R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, this court allowed an appeal and substituted acquittals for drug offences on the basis that the evidence should have been excluded under s. 24(2). Upon arrest Mr. Rover advised the police that he wanted to speak to a lawyer, but was not afforded that opportunity until almost six hours later....

....I appreciate that the breach in Mr. Rover’s instance was serious, at least in part, because it arose from a systemic practice, but the breach in the present case is arguably more serious given the appellant was never afforded the opportunity to speak with counsel.

[43] In R. v. Noel, 2019 ONCA 860, the appellant was arrested during the execution of a search warrant at his home, where drugs were found in his bedroom. A police officer left a message for duty counsel to call back and speak with Mr. Noel, but never followed up to ensure contact. While the trial judge found a s. 10(b) violation, she admitted the evidence. On appeal this court concluded that the breach was serious and warranted exclusion, writing, at paras. 20, 29, 31, and 32, that:

The s. 10(b) violation found by the trial judge was serious. Three hours passed between the time of the arrest and the first confirmed attempt by the police to secure counsel for Mr. Noel. When Mr. Noel arrived at the station at 11:10 p.m., entirely under the control of the police, no one took charge of ensuring that he could speak to counsel as he had requested. Instead, he was placed in a cell and left there.

It was not until 1:25 a.m., now about two and a half hours after Mr. Noel’s arrival at the station, that Officer Westcott left a message with duty counsel, specifically on Mr. Noel’s behalf. There is then no confirmation that counsel actually spoke to Mr. Noel.

[44] It is difficult to see how the appellant’s situation is any different than Mr. Noel’s. In fact, because no attempt was made to facilitate contact with counsel, the facts in the appellant’s case are arguably more problematic.

[45] While the trial judge did not have the benefit of this court’s decision in R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, it closely resembles the facts in the appellant’s case. The police, who arrested Mr. Jarrett for a bail violation, located and seized a fanny pack which contained drugs and money. The trial judge, while finding that the police violated s. 10(b) by leaving only a single message for counsel of choice (and then failing to follow up for 30 hours after arrest), admitted the evidence. Zarnett J.A., writing for the court, held that a proper s. 24(2) analysis would have resulted in exclusion. In addressing the seriousness of the breach, Zarnett J.A. wrote, at paras. 47-48, that:

First, the breach ought not to have been viewed as anything other than serious, given the extent the police conduct departed from the content of the appellant’s constitutional right. The duty of the police was to immediately provide the appellant with a reasonable opportunity to speak to counsel. Viewed from that perspective, the breach was very substantial – the delay in providing the opportunity to speak to counsel was about 30 hours.

Second, although the breach was arguably inadvertent – that is, not intentional and there was no evidence the delay was caused by a systemic practice – the circumstances did not take the case out of the serious breach category. The single, unsuccessful attempt to contact counsel referenced by the trial judge pales in comparison to the length of time over which the police failed to take any further steps to fulfill their duty....

....The police are expected to comply with the Charter. The absence of evidence that the police’s failure to comply with the Charter was systemic is not a mitigating factor when assessing the seriousness of the breach.

[46] In my view, Zarnett J.A.’s reasoning applies with equal force to this case. The trial judge erred by minimizing the Charter-infringing police conduct because it was not “part of a larger systemic problem”. As in Jarrett, the absence of a systemic problem is not a mitigating factor. Nor does the fact that the breach was the result of an “honest mistake” render it less serious. Such inadvertence “[does] not take the case out of the serious breach category”...

[47] The trial judge improperly downplayed the seriousness of the failure by the police to fulfill their constitutional obligations. She specifically fell into error by speculating about why the police did not facilitate contact with counsel, by treating the absence of a systemic problem as a mitigating factor, and by effectively equating inadvertence with good faith. [Emphasis by PJM]

(ii) Second Grant Factor – Impact of the Breach on the Appellant’s Charter-Protected Rights

[49] The trial judge found that, on the facts of this case, the second Grant factor pulled towards admission. In arriving at this conclusion, she focused on the importance of s. 10(b) rights in safeguarding against involuntary self-incrimination and relied on the lack of a causal connection between the appellant’s s. 10(b) interests and the obtaining of the evidence. In other words, because the Charter violation did not lead to the appellant incriminating himself, its impact was less serious, which in turn weighed in favour of admission.

[50]...Undoubtedly, the lack of a causal connection can attenuate the seriousness of a s. 10(b) breach: Grant, at para. 122; Rover, at para. 43. However, in this case, the trial judge erred by failing to acknowledge that there are other interests protected by s. 10(b) beyond the principle against self-incrimination.

[51] In addition to providing a safeguard against self-incrimination, contact with counsel also provides a detained person with information about the procedures they will be subjected to, advice on questions about how long their detention is likely to be, and guidance on what can or should be done to regain liberty: Noel, at para. 26; Rover, at para. 45; and Suberu, at para. 41. These interests were surely at play in this case. The appellant was detained overnight and brought to a show cause hearing the following morning. As a result, he was deprived of the potential benefit of having information from counsel on what was going to happen, and what could be done to obtain release. [Emphasis by PJM]

[52] Here, even though upon arrest the appellant asked to speak with counsel, the police never afforded him that opportunity prior to him being taken to court the next day. The appellant’s access to counsel was not merely delayed – it was, whatever the reason, completely denied. It is difficult to imagine when, if ever, the complete denial of a Charter-protected right for such a prolonged period would lead to a finding that the second Grant factor favours admission. As this court directed in Jarrett, “[t]he impact must be considered given the nature of the interests protected by the right to counsel, and the length of delay in providing it”: at para. 53. Again, the appellant was not delayed in speaking with counsel; he was entirely denied the right to do so. In deciding as she did, the trial judge “placed undue emphasis on the lack of a causal connection between the [search and seizure] and the s. 10(b) breach”: Jarrett, at para. 55.

[53] In sum, as it relates to the second Grant factor, the trial judge erred by placing undue emphasis on the absence of a causal connection, and by not considering other interests protected by s. 10(b), aside from self-incrimination. A breach can have a significant impact on a person’s s. 10(b) interests even where there is no causal connection: see Rover, at para. 47; Noel, at para. 33; and Jarrett, at para.53. The trial judge erred by failing to consider all of the interests protected by s. 10(b), in particular the psychological value of having access to counsel.

E. THE S. 24(2) ANALYSIS AFRESH

[55] As I have explained, the breach of the appellant’s s. 10(b) rights cannot be viewed as anything other than serious. His access to counsel upon arrest was not merely delayed – it was denied altogether for a prolonged period due to carelessness. The only available conclusion is that the first Grant factor pulls towards exclusion of the firearm and ammunition.

[56] Similarly, the impact of the breach on the appellant’s Charter-protected interests was significant. The police completely denied him a constitutional right which has been termed a “lifeline for detained persons”: Rover, at para. 45. The appellant was not only unable to obtain legal advice, but also did not have the psychological benefit of speaking to counsel to understand his rights, or the opportunity to get information from counsel on how he could go about regaining his liberty. The second Grant factor thus also pulls towards exclusion of the evidence.

[58] As I noted above, the Supreme Court held at para. 134 of Beaver that where the first two Grant factors “make a strong case for exclusion” of the evidence, the third factor “will seldom tip the scale in favour of admissibility”. This is not one of those rare cases.

[61] In the circumstances of this case, it would. The breach of the appellant’s s. 10(b) rights was so serious and injurious of his Charter-protected interests that no amount of public clamour for a conviction could tip the scales towards inclusion. The integrity of the justice system would be compromised if, in these circumstances, this court were to effectively vindicate the inexcusable Charter breach by the police. Simply put, the administration of justice is better served by excluding the evidence than by admitting it.

F. CONCLUSION

[63] The firearm and ammunition ought to have been excluded. As all charges were firearms related, the Crown had no case without this evidence and acquittals were inevitable. I would accordingly allow the appeal, set aside the convictions, and substitute acquittals on all counts.

R v RI, 2024 ONCA 185

[March 14, 2024] Credibility: Bare Denial, Collusion Among Crown witnesses [Janet Simmons, K. van Rensburg, J. George JJ.A.]

AUTHOR’S NOTE: In most "bare denial" cases, it is particularly difficult to overturn a decision on the basis of a failure to consider the accused's denial. Here, this was precisely the outcome. While the trial judge found significant problems with the evidence of the complainants on some allegations, he then essentially placed a persuasive burden on the accused to explain why the remaining account was not truthful. In some ways, the treatment of complainant evidence was contradictory. In this way, it was important to consider the bare denial of the accused appropriately. This is particularly so where there was supportive evidence of collusion. Collusion can undermine the credibility of witnesses in historical sexual assault cases as it did here. 

REASONS FOR DECISION

[1] The appellant was convicted of sexual interference and invitation to sexual touching and sentenced to four years’ imprisonment less credit for pre-sentence custody....

[2] For the reasons that follow we allow the conviction appeal.

[3] The appellant was charged in 2019 with sexual offences against his two stepdaughters, E.L. and S.L., stemming from incidents alleged to have taken place between January 2013 and December 2018. The allegations included repeated instances of inappropriate touching, fellatio and attempted and actual vaginal and anal penetration in relation to each complainant.

[4] The trial judge did not accept the appellant’s evidence and concluded that it did not raise a reasonable doubt. After considering the other evidence, consisting of the testimony of E.L., S.L. and the girls’ mother, the trial judge concluded that the totality of the evidence about E.L.’s allegations left him with a reasonable doubt. He acquitted the appellant of all offences in relation to E.L.

[5] With respect to S.L.’s allegations, the trial judge concluded that S.L. had exaggerated the frequency of what happened, and that he did not accept that she had been repeatedly sexually assaulted by the appellant. He was also left with a reasonable doubt about whether there were any instances of fellatio and vaginal or anal penetration because of the many contradictions and inconsistencies in S.L.’s evidence, and because some of her evidence about those allegations was unacceptably vague.

[6] The trial judge went on to note that the contradictions, inconsistencies and weaknesses in S.L.’s other evidence related more to peripheral matters or were understandable and did not leave him with a reasonable doubt, and that having assessed all the evidence relating to S.L., he was not left with a reasonable doubt about the appellant’s guilt on the counts related to S.L. He found that the appellant had sexually assaulted S.L. for a period of about ten months in 2018 when she was about ten years old, and that the sexual abuse included the appellant once placing S.L.’s hand on his penis and genitals, which progressed to his touching S.L.’s breasts and vagina at least once both over and under her clothing, and that this progressed to the appellant rubbing his penis on S.L.’s buttocks and vagina on at least two occasions both over and under her clothing.

The alleged errors in the assessment of the appellant’s evidence

[9] The focus with respect to this ground of appeal is on paras. 27 to 35 of the trial judge’s reasons, under the heading “The Accused”. This section of the reasons begins with the trial judge’s summary of the appellant’s evidence. The trial judge stated, at para. 27:

The [appellant] testified briefly. He denied all allegations. He said that the allegations are not true, that they are ridiculous. He did not deal separately with the allegations of [E.L.] and [S.L.]. He said that he sometimes yelled at the complainants and that he occasionally lost his cool but said that none of those things that are alleged ever happened.

[10] After self-instructing on the principles in R. v. W.(D.), [1991] 1 S.C.R. 742, the trial judge concluded that, when he considered the evidence of the appellant in the context of the evidence relating to each of E.L. and S.L., he did not believe the appellant, nor did the appellant’s evidence leave him with a reasonable doubt about his guilt on the counts relating to each complainant. The trial judge noted that the appellant denied all allegations, but that his testimony was brief and unconvincing. It is in the explanation that follows that duty counsel points to alleged errors in respect of each of the reasons the trial judge provided for this conclusion.

[14] We agree with duty counsel’s submission. The importance of the evidence on this point is that E.L. testified that she had been promised a new dog in exchange for performing fellatio on the appellant. However, the trial judge was not persuaded beyond a reasonable doubt by E.L.’s evidence,...

....And, at para. 66 of his reasons, the trial judge specifically addressed E.L.’s evidence that the appellant asked her to perform fellatio for a new dog in the spring or summer of 2018. He described various concerns with that evidence that were brought out during E.L.’s cross-examination and re-examination, and he concluded that “[i]n the face of these many contradictions, the fact that [the dog] surprisingly materialized is not sufficient counterweight”. Later, at para. 70 of his reasons, the trial judge indicated that he was not finding that the events that E.L. alleged “did not possibly occur”, and he observed that they “might have”.

[15] In assessing the appellant’s evidence, the trial judge appears to have relied on evidence about the reason for the dog’s appearance, that he expressly did not accept later in his reasons. Indeed, the trial judge’s description of the dog’s surprise arrival as “more consistent with the [appellant] trying to keep [E.L.] happy and quiet than with the [appellant’s] vague explanation” (emphasis added) suggests that he was applying a civil standard of proof, rather than applying the principle set out in J.J.R.D .

[16] In J.J.R.D. Doherty J.A. observed that the rejection of an accused’s evidence may be explained by “a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence”: at para. 53. The trial judge did not accept E.L.’s evidence, even to the extent that it was corroborated by her mother’s evidence, beyond a reasonable doubt. Indeed, he had significant concerns about such evidence, such that he acquitted the appellant of all offences relating to E.L. [Emphasis by PJM]

[17] The trial judge’s second reason for rejecting the appellant’s evidence was that his bare denials were not convincing because he provided no detail or particulars to explain why the allegations of each of the complainants were ridiculous. At para. 31 of his reasons the trial judge observed that, “[w]hen trying to convince, details can be important and here the accused provided very little”. The trial judge then referred to the appellant’s evidence that E.L. was a difficult child and prone to frequent outbursts, and that although he loved both E.L. and S.L., he had a poor relationship with them because he was often the parent left to enforce discipline. The trial judge stated that such evidence did not leave him with a reasonable doubt.

[18] Duty counsel contends that the trial judge erred in placing a persuasive burden on the appellant to explain why the allegations of the complainants were false....

[19]....Under cross-examination, the appellant confirmed that he viewed the allegations as “ridiculous” and that “[n]othing at all rings true”, and he denied specific allegations that were put to him by the Crown.

[20] We agree that the trial judge erred in appearing to place the persuasive burden on the appellant when he faulted him for failing to provide details or particulars to explain why the allegations against him were ridiculous. There is no burden on an accused to explain why a false accusation would have been made: R. v. S.S.S., 2021 ONCA 552, 406 C.C.C. (3d) 314, at para. 38. The trial judge noted that the appellant provided few details; however, it is not clear what further evidence the appellant could have provided, given that he was denying the alleged instances of abuse. Moreover, we agree with duty counsel that it appears that the trial judge may well have accepted the Crown’s submission during closing arguments that, if the trial judge were to believe the appellant, he would need to conclude that the complainants were not confused or mistaken, but were “outright lying” and that the case cried out for “some evidence” as to why false allegations would have been made.

[21] The trial judge’s third and final reason for rejecting the appellant’s evidence was at para. 32 of his reasons where he stated that the appellant was evasive and reluctant to admit the obvious:...

[22] Duty counsel submits that the trial judge misapprehended the appellant’s evidence....

[24] Having carefully reviewed the transcript of the appellant’s evidence, we agree with duty counsel that the appellant admitted that, while he was not a father figure to the complainants as soon as he and their mother married, the relationship developed over time, after their biological father was no longer involved....

[26] For these reasons we accept the argument that there were errors in each of the reasons provided by the trial judge for rejecting the appellant’s evidence and concluding that the evidence did not raise a reasonable doubt.

The trial judge’s treatment of the allegation of collusion

[27] The appellant also contends that the trial judge erred in his assessment of S.L.’s evidence when he failed to grapple with the evidence that S.L. had repeatedly overheard E.L. and their mother discussing E.L.’s allegations between December 2018 (when E.L. spoke to the police) and March 2019 (when S.L. first disclosed her allegations). Rather than considering whether S.L.’s exposure to this information tainted her evidence and provided a basis for her to falsely accuse the appellant, the trial judge, at para. 88 of his reasons, found that the conversations were not “abnormal or unreasonable” and were “not unreasonable in these circumstances within such a family”. He went on to state that S.L.’s evidence appeared independent but noted that demeanour was difficult to assess. While the trial judge held that S.L.’s “reluctance to admit some of the above” affected her credibility and reliability, the appellant contends that he understated the full import of this evidence, and he did not squarely address the defence allegation of collusion, which was an important consideration having regard to S.L.’s significant animus against the appellant.

[29] We agree with duty counsel’s submission that the trial judge understated the importance of the evidence of potential collusion, and did not properly assess its impact on S.L.’s credibility and reliability, when he convicted the appellant of having sexually assaulted S.L.

[30] In her examination in chief, S.L. testified that she had no recollection of overhearing any discussion of E.L.’s allegations between the time E.L. gave her police statement and her own disclosure, and she referred to the time as a “blank space”. She maintained that the only thing she knew was that the appellant had moved out. On cross-examination, however, E.L. was taken to her police statement where she said that E.L. and her mother “literally talk about it all the time”. She maintained that she had overheard only one conversation, but she acknowledged that she might have overheard others but not understood what was being talked about. The trial judge did not address S.L.’s apparent unwillingness to acknowledge that she had overheard and had conversations about E.L.’s allegations. Instead, after finding that S.L. would listen to conversations between E.L. and her mother about E.L.’s allegations, and that E.L. and S.L. talked about their allegations prior to S.L.’s police disclosure, he concluded that the conversations were not abnormal or unreasonable.

[31] In so concluding, the trial judge failed to properly consider whether S.L.’s exposure to the conversations about E.L.’s allegations affected her credibility and reliability. It is well-established that hearing the evidence of other witnesses “can have the effect, whether consciously or unconsciously, of colouring and tailoring [a witness’s] descriptions of the impugned events”: R. v. C.G., 2021 ONCA 809, 158 O.R. (3d) 721, at para. 28, citing R. v. C.B. (2003), 167 O.A.C. 264, at para. 40. For this reason, a trial judge faced with evidence of potential collusion must directly address the evidence and consider its impact on the witness’s credibility and reliability. It remains open to the trial judge to rely on the witness’s testimony, but only if the trial judge is demonstrably satisfied that the alleged collusion did not taint the witness’s credibility or reliability: C.G., at paras. 33-40; R. v. Burnie, 2013 ONCA 112, 303 O.A.C. 76, at paras. 36, 41.

[32] We agree with duty counsel that the trial judge in this case did not adequately address the evidence of potential collusion and explain why this factor, together with S.L.’s animus and the various frailties in her evidence, did not leave him with a reasonable doubt.

[33] We therefore are of the view that the cumulative errors in the trial judge’s analysis justify allowing the appeal.

[35] For these reasons, we allow the conviction appeal and direct a new trial on the charges involving offences against S.L.

R v PA, 2024 BCCA 93

[March 12, 2024] Charge to the Jury: Isolating Evidence for BRD Assessment [Reasons by DeWitt-Van Oosten, with Fenton and Fitch JJ.A. concurring]

AUTHOR’S NOTE: Here the trial justice attempted to provide a simplified jury instruction, but the process of simplification faltered when the standard form instructions were changed to suggest a piecemeal assessment of the evidence in relation to the burden of proof. Jury instructions cannot advise the jury to ignore any evidence while assessing a part of the required legal tests. This remains true in a W(D) instruction. The problem with advising a jury to be satisfied of the evidence of the complainant beyond a reasonable doubt before moving on to the next state of W(D) is that it would marginalize the evidence of the accused. How does a jury go back and undo their conclusion by considering the evidence of the accused when they have already found the evidence satisfies them BRD?

Introduction

[1] This is an appeal from convictions for sexual assault and two counts of sexual interference. The Crown proceeded by indictment. The offences were tried by a Supreme Court judge sitting with a jury.

[2] There is only one issue raised on appeal. The appellant says the judge misdirected the jury on how to approach and assess the evidence in deciding whether the Crown proved the offences beyond a reasonable doubt.

[3] The appellant has persuaded me of misdirection. Furthermore, I am satisfied the misdirection resulted in material errors that cannot be cured by s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.

Background

[6] The appellant was charged with committing sexual offences between 2001 and 2011 against his stepdaughter. She was between seven and 16 years old when the offending occurred.

[7] The Crown alleged multiple incidents of highly invasive sexual misconduct, including vaginal intercourse, digital penetration, and taking one or more photos of the complainant’s vaginal area. The complainant disclosed the abuse after she turned 18.

[8] Credibility and reliability were critical issues at trial.

Jury Instructions

[12] Because the appellant testified, the judge instructed the jury on the analytical framework established by the Supreme Court of Canada in R. v. W.(D.) , [1991] 1 S.C.R. 742, 1991 CanLII 93 [W.(D.)] :

[16] Then, as promised, the judge presented the jury with the “methodical approach” he referred to earlier:

So with those various observations and directions, let me now return to the core of the task at hand, how you proceed in your deliberations.

I would suggest you begin with Count 1.

Your first step should be to examine and assess, critically and carefully, the evidence of the complainant … and particularly each of the allegations she has testified to. You must ask yourself whether you are satisfied, to the standard of proof beyond a reasonable doubt, that the events she has described are true. That must be done in respect of each specific allegation. You may find some of the allegations are proven to that standard, you may find all of them are proven, or you may find that none of them have been so proven.

If you find that none of the incidents has been proven to that standard, then your deliberations will be at an end. You would find that Counts 1, 2, and 3 of the indictment have not been proven and you would return verdicts of not guilty in respect of each count. That would conclude your duties.

If, however, you are satisfied that the Crown has proven some or all of the allegations, then for those specific transactions you would proceed to the next stage of your deliberations by examining the evidence of [P.A.]. Specifically, you would ask yourself whether you believed his denial of guilt or, even if you do not believe it, it nevertheless raises for you a reasonable doubt. If either of those situations results, then for that transaction, you must then find that not to have been proven and, for that transaction, your deliberations would be at an end.

[18] Before the judge delivered the charge, counsel for the Crown and the defence each received drafts of the proposed instructions and were given opportunity to make submissions on the wording. It is common ground that neither side took issue with the instructions excerpted at para. 16 above. Nor did defence counsel object to this portion of the charge after the instructions were delivered and before the jury began to deliberate.

[21] As re-affirmed in R. v. Abdullahi, 2023 SCC 19, an accused is entitled to a properly instructed jury, not a perfectly instructed one. For purposes of appellate review, it is the “substance of the charge that matters, not adherence to a prescribed formula or particular sequence …”. The overriding question is whether the jury was “properly equipped” with the law to apply to the evidence: at paras. 34–35, internal references omitted. A properly equipped jury is one that is both accurately and sufficiently instructed: at para. 37.

[22] The charge must be reviewed as a whole and importantly, it must be reviewed in the context of the record, including the live issues at trial and the submissions of counsel: Abdullahi at paras. 36–37.

[23] Consequently, “[a] single ambiguous or problematic statement in one part of a charge will not necessarily be an error of law where the charge as a whole equipped the jury with an accurate understanding of the relevant legal issue ...”: Abdullahi at paras. 41–42, internal references omitted.

B. Alleged misdirection

[24] As noted, the appellant raises only one issue on appeal.

[25] He says the judge misdirected the jury on how to approach and assess the evidence in deciding whether the Crown proved all elements of the offences beyond a reasonable doubt. The alleged misdirection is grounded in the “methodical approach” provided to the jury for use in its deliberations.

Legal principles

[31]....the law recognizes that in deciding whether the Crown has met its burden of proof, the fact that a judge or jury has assessed the credibility and reliability of the Crown’s witnesses before they have assessed the evidence of the defence will not of its own amount to error: R. v. Gerrard, 2022 SCC 13 at para. 2; R. v. C.L.Y., 2008 SCC 2 at paras. 11–12 [C.L.Y.]. TheW.(D.) framework need not be “religiously followed”: C.L.Y. at para. 7. See also R. v. J.H.S., 2008 SCC 30 at para. 13; R. v. Boucher, 2005 SCC 72 at para. 29; R. v. S. (W.D.), [1994] 3 S.C.R. 521 at 533, 1994 CanLII 76.

[32] Instead, what is critical is that the trier of fact understand that the verdict(s) cannot be grounded in a preference or choice between the evidence of the Crown witnesses and that of the accused. The fundamental question to be answered in every case is whether, on the whole of the evidence, the judge or jury is left with a reasonable doubt about the guilt of the accused: C.L.Y. at para. 8; R. v. Vuradin, 2013 SCC 38 at para. 21.

[33] The law is also clear that the evidence of the Crown’s witnesses and any evidence adduced by the defence, including the testimony of the accused, must not be examined in isolation. As aptly stated by Justice Fichaud in R. v. Lake, 2005 NSCA 162 at para. 22: “The analysis of both the accused’s testimony and the Crown’s evidence is done with full knowledge of all the evidence that has been adduced at the trial” (emphasis added).

[35] Comparing the evidence of the complainant and the accused to understand where it diverges, where it might converge, and the extent to which each witness’s testimony is consistent or inconsistent with other parts of the evidence, is a natural part of the holistic assessment a trier of fact must apply when deciding whether the Crown has met its burden of proof: Gerrard at para. 2; R. v. J.M.H., 2011 SCC 45 at para. 31 [J.M.H.]; R. v. Morin, [1992] 3 S.C.R. 286 at 295–296, 1992 CanLII 40.

Application of principles

[38] That brings me to the jury instructions in this case.

[40]...particular care is required when deviating from well-accepted frameworks that convey foundational principles. The instructions at issue in this case, which sought to simplify matters, ultimately gave rise to three problems. The appellant pursued only two on appeal. However, the third problem logically flows out of the second one.

[41] The impugned instructions: (1) encouraged a segregated (compartmentalized) assessment of the evidence, rather than a holistic consideration; (2) subtly shifted the burden of proof by having the jury consider the evidence of the appellant only once it had already concluded that the complainant’s testimony proved the sexual assault and interference allegations beyond a reasonable doubt; and (3) directed the jury to apply the criminal standard of proof to parts of the evidence (namely, the complainant’s testimony), before deciding the case as a whole.

[42] Specific to the last of these errors, it has long been accepted that it is improper to “… subject individual pieces [or parts] of evidence to the standard of proof beyond a reasonable doubt …” when deciding whether the Crown has met its burden: J.M.H. at para. 31, internal references omitted; R. v. B. (G.), [1990] 2 S.C.R. 57 at 75–77, 1990 CanLII 115 [B. (G.)]. The doctrine of reasonable doubt is applied only once—at the completion of the case on its merits, and after the evidence has been “looked at as a whole”: B. (G.) at 77.

First error

[43] Standing alone, I accept it was not erroneous for the judge to tell the jury that it could start its assessment of the evidence with the complainant’s testimony.

[44] However, the impugned instructions did more than this. They divided the deliberations process into two distinct stages and instructed the jurors that they would only proceed to the second stage of their deliberations and examine the appellant’s evidence if satisfied, beyond a reasonable doubt, that the events as described by the complainant were true. If the jurors were not so satisfied, their deliberations would be at an end and they would be obliged to return verdicts of not guilty.

[45] In my view, these instructions were erroneous. They created a realistic risk that the jury would understand it was obliged to examine, assess, and weigh the complainant’s evidence on its own, divorced from any other evidence in the case, including the evidence of the accused. I agree with the appellant that the practical effect of the “methodical approach” was to marginalize the appellant’s evidence. It then brought that evidence back into play only once the complainant’s testimony had been fully considered, weighed, and found to be sufficient to prove guilt beyond a reasonable doubt.

[46] This type of “evidentiary segregation” is improper: R. v. Rodgerson, 2015 SCC 38 at para. 23. The jury was entitled, and indeed obliged, in its assessment of the complainant’s credibility and reliability, to simultaneously consider the evidence of the appellant and all of the other evidence adduced in the case: Rodgerson at para. 23.

[47] The Crown says the challenged instructions were simply about “sequencing”, and on a fair reading of the charge there is no possibility the jurors would have understood it was appropriate to focus on the complainant’s evidence to the exclusion of everything else. There were many times the judge explained to them that the case must be decided on the entirety of the evidence.

[49] I accept that a problematic statement in one part of a jury charge is unlikely to amount to reversible error if the charge, as a whole, effectively equipped the jury with an accurate understanding of the legal issues it had to decide, and the necessary tools to make those decisions: Abdullahi at para. 41. The law is clear on that point.

[50] However, this is not one of those cases.

[51] The instructions at issue here were foreshadowed to the jury before being presented, heightening their significance. The jurors were told the judge would provide them with an approach to the evidence that would enable them to go about their deliberations in an “organized and hopefully efficient way”. Then, when the judge arrived at this part of his charge, he told the jury he was returning to the “core of the task at hand” (emphasis added). Linking the “methodical approach” to the “core” of the jury’s task positioned this particular set of instructions as one of material importance and effectively rendered it central to the jury’s analysis of the case. Finally, the judge provided the jury with a written copy of the charge for use in its deliberations. Given the overall context, it is fair to assume that if a question arose during deliberations about how the jury should approach and assess the evidence in deciding whether the Crown met its burden of proof, this part of the charge would have been front and centre and likely governed the discussion.

[52] The appellant was entitled to have the whole of the exculpatory potential of his evidence inform the jury’s consideration of the complainant’s credibility and reliability....

Second error

[54] As noted, the jurors were told that if they were satisfied all or some of the allegations testified to by the complainant were true on the “standard of proof beyond a reasonable doubt”, they should proceed to examine the evidence of the appellant and ask whether they believed his denial or the denial raised a reasonable doubt.

[55] In my view, this is also an error. Jurors are obliged to ask whether they believe the accused or the accused’s evidence raises a reasonable doubt as part of their consideration of the evidence as a whole, not after they have already decided that a complainant’s evidence has proved the actus reus and mens rea of the allegations that underlie the charged offences beyond a reasonable doubt: R. v. Sanhueza, 2020 BCCA 279 at paras. 36, 48....

[56] The Crown says there was nothing improper about the jury being told that it could “tentatively” accept the truth of the complainant’s evidence beyond a reasonable doubt before it considered the evidence of the appellant....

[57] I see nothing in the impugned instructions that would have made it clear to the jury that it could only “tentatively” accept the truth of the complainant’s evidence, or that any conclusions it reached about the sexual allegations after assessing the complainant’s evidence must be treated as incomplete, or necessarily subject to findings made on the basis of other evidence....

[58] The Crown argues that even if the instructions were problematic, they caused no prejudice in this case because the appellant “… had no evidence to offer aside from his denials to directly challenge the complainant’s allegations”. I do not find this argument persuasive. The same set of foundational principles applies regardless of whether an accused presents a detailed defence or a bare denial. The appellant was entitled to have his evidence considered as part of the jury’s assessment of the complainant’s credibility and reliability, irrespective of the depth of its content.

Third error

[59] The third error arises out of the judge’s coupling of a segregated evidentiary approach with the Crown’s burden of proof. He directed the jury to ask whether “each of the allegations” testified to by the complainant met the standard of proof beyond a reasonable doubt and proved that the events she described were true. The jury was directed to apply the standard of proof to the complainant’s evidence before its consideration of the appellant’s testimony. In my view, this instruction encouraged a piecemeal approach to applying the standard of proof, contrary to the Supreme Court of Canada’s direction.

[60] The standard of proof beyond a reasonable doubt “… applies only to the jury’s final evaluation of guilt or innocence and is not to be applied piecemeal to individual items or categories of evidence”: Ménard at para. 23, citing R. v. Morin, [1988] 2 S.C.R. 345, 1988 CanLII 8, emphasis added.

[63]....I agree with the appellant that in the particular circumstances of this case, the judge’s efforts to simplify the issues resulted in material errors that rendered the instructions fatally defective. In that context, the defence failure to object cannot preclude appellate intervention: Pirko at para. 66.

Disposition

[70] Given the nature of the errors established by the appellant, there is no option but to allow the appeal, set aside the convictions for sexual assault and sexual interference, and order a new trial.