This week’s top three summaries: R v S.M., 2022 ONCA 765: s.650 #presence at trial, R v Burles, 2022 NWTCA 3: #contempt proceedings, and R v Pearson, 2022 ABKB 655: Mr. Big #abuse.
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R v S.M., 2022 ONCA 765
[November 9, 2022] Criminal Code s.650: The Right to be Present for Your Trial [Reasons by Gary Trotter J.A. with Thorburn and L. Favreau J.A. concurring]
AUTHOR’S NOTE: On occasion, judges will ask to have in-chambers meetings during or just before trial proceedings. As this case makes plain, this is a bad idea. Accused persons have a right to present for every significant portion of their trial which includes potential resolution discussions with the judge present. Here, such a meeting was attended by amicus and the accused did not find out about it until his appeal. The result was a new trial in a dangerous offender proceeding.
Introduction
[5] The appellant challenges his convictions on the basis that the in-chambers meetings deprived him of the right to be present at his own trial, in violation of s. 650 of the Criminal Code. The Crown acknowledges the breach. It does not purport to rely on the curative proviso in s. 686(1)(b)(iv).
(5) The Meetings in Chambers
[21] The two in-chambers meetings happened during the second week of trial. After lunch on January 31, 2013, a court officer advised all three counsel that the trial judge wished to see them in chambers. At the time, V.M. had completed her testimony and M.M. was still under cross-examination.
[22] When counsel arrived in the trial judge’s chambers, the Crown expressed concerns about the propriety of being there. The trial judge interrupted him and told him not to worry because nothing was going to be decided.
[23] The trial judge then referred to the email from trial counsel reproduced in para. 16, above. As the trial Crown remembered it:
The judge asked semi rhetorically what the issue was at this trial and then asked if something could be worked out between amicus acting on [the appellant’s] behalf and Crown. The Judge didn’t get into specifics on evidence and only asked whether or not something could be worked out. The Judge did indicate he thought that there was grave or real doubt on the incest part [sic, charge?].
(6) The Guilty Plea
(7) Post-Trial Events
[30] Amicus curiae was cross-examined by the appellant. Because the appellant was self-represented, the cross-examination took place in front of a Superior Court judge. By this time, amicus curiae was represented by counsel appointed by the Lawyers’ Professional Indemnity Company (“LAWPRO”). After consulting with amicus curiae, LAWPRO counsel advised everyone in court that he had just learned about the in-chambers meetings. The cross-examination continued. When the appellant asked amicus curiae why he did not advise him of these discussions, he answered: “I didn’t think it was consequential.”
C. Analysis
(1) The Right to be Present
[34] In R. v. Hertrich (1982), 67 C.C.C. (2d) 510 (Ont. C.A.), Martin J.A. explained the importance of the right to be present at trial, at p. 537:
The essential reason the accused is entitled to be present at his trial is that he may hear the case made out against him and, having heard it, have the opportunity of answering it: R. v. Lee Kun (1915), 11 Cr. App. R. 293. The right of the accused to be present at his trial, however, also gives effect to another principle. Fairness and openness are fundamental values in our criminal justice system. The presence of the accused at all stages of his trial affords him the opportunity of acquiring first- hand knowledge of the proceedings leading to the eventual result of the trial. The denial of that opportunity to an accused may well leave him with a justifiable sense of injustice. Indeed, in my view, an examination of the Canadian decisions shows that the latter principle is, in fact, the implicit and overriding principle underlying those decisions.
This passage was endorsed by Dickson C.J.C. in R. v. Barrow, [1987] 2 S.C.R. 694, at pp. 705-707, and more recently by MacPherson J.A. in R. v. Schofield, 2012 ONCA 120, 109 O.R. (3d) 161, at para. 16; see also R. v. Walker, 2010 SKCA 84, 258 C.C.C. (3d) 36, at para. 19.
[38] This scenario – an in-chambers meeting in which a trial judge comments on the quality of the evidence and then encourages resolution discussions – has been criticized in numerous decisions of this court: see Schofield, at paras. 19-21; R. v. Roy (1977), 32 C.C.C. (2d) 97 (Ont. C.A.), at pp. 98-99; R. v. James (2009), 95 O.R. (3d) 321, at para. 21; Poulos, at paras. 19-22; and Dayes, at paras. 69-70. In these situations, it is clear that the former (comments about the evidence) is meant to encourage the latter (plea discussions). Both are improper. In-chambers comments about the evidence are particularly problematic if resolution is not achieved and the trial continues. The appearance of impartiality is lost. [PJM Emphasis]
[40] The infringement was made more serious in this case because, unlike some of the cases referred to above, there was no record of these in-chambers discussions. Unlike all of these cases, the appellant was self-represented. This reality was not ameliorated by the presence of amicus curiae or s. 486.3 counsel. The latter does not remember being in chambers. The former did not tell the appellant what had transpired, even after being asked to do so by the trial Crown. He did not believe that it was “consequential”.
[41] Section 650 of the Criminal Code was breached by the in-chambers discussions that were held in this case.
(2) The Curative Proviso Does Not Apply
D. Conclusion And Disposition
R v Burles, 2022 NWTCA3
[October 31, 2022] Contempt of Court for Witnesses [Watson, Hughes, and Duncan JJ.A.]
AUTHOR’S NOTE: The power of a judge is perhaps most sharply wielded in what is known as a summary contempt of court procedure where the judge becomes the complainant and the person deciding the outcome of the charge all during the same sitting. It is difficult to see this process as fair because the judge is almost assuredly predisposed to decide the matter in a certain way. Nonetheless, as a method of controlling the court proceedings, this remains an available tool. Herein, the summary procedure is outlined. At the very least, these steps cannot be skipped - this resulted in the matter being overturned.
[2] The background facts are straightforward. At the commencement of the trial of a friend of the appellant, the friend’s trial counsel advised the trial judge:
Ms. MALONE: Good morning, Your Honour. I’m here with my client, Mr. Rainer Erasmus. We are in most respects prepared to proceed to trial. There is a witness [the appellant] who is in custody at NSCC. I did obtain a removal order last week for his attendance. He was present on the last court date. He is apparently not coming to court today.
THE COURT: Well, that is not his choice. I direct Madam Clerk to notify NSCC to extract him from his cell and bring him here.
Ms. MALONE: Thank you, Your Honour.
THE COURT QUESTIONS THE WITNESS:
THE COURT: Mr. Burles, I understand, Sir, you refused to come to court this morning?
A Yeah.
THE COURT: Why?
A I had an exam to take this afternoon, which I missed, so...
THE COURT: When do you get out of jail?
A I don’t know, probably October.
THE COURT: Would you like another 90 days? A If you want to slap it on, go ahead.THE COURT: Well, I tell you now, and you tell your buddies over at the pen, if you do not come to court when you are required, you will get 90 days tacked on to your sentence.
A That’s fine with me, man.
THE COURT: All right. Well, then you --
A The last thing I need is a lecture from you, you know. THE COURT: You can have an extra 90 days.
A Okay. That’s fine. No worries.
THE COURT: Take him out. Under 708(2).
A It’s already time served anyways.
[6] The law is clear: a court has authority to summarily deal with contempt. However, before the court proceeds summarily, the circumstances must make it urgent and imperative to act immediately to convict and sentence a party for contempt of court, understanding that the use of a court’s contempt power “should be restrained by the principle that ‘only [t]he least possible power adequate to [end the contempt]’ should be used”: R v K(B), [1995] 4 SCR 186, 129 DLR (4th) 500 at para 13; see also R v Arradi, 2003 SCC 23.
[7] If a court uses the summary procedure, and in the absence of exceptional circumstances, natural justice requires that: 1) the party be cited for contempt in that the party be advised they must show cause why they should not be found in contempt; 2) the party be given an opportunity to be advised by counsel, and if they choose to be represented by counsel; and 3) if the party is found in contempt, the party must have an opportunity to make submissions as to an appropriate sentence: see K(B) at paras 15-16 and Arradi at para 30. R v Lavallee, 2022 MBCA 79 at para 12 states: [PJM Emphasis]
A number of safeguards to prevent a misuse of criminal contempt powers exist. The alleged contemnor is entitled to fair notice of the alleged contempt, time to answer the allegation with the assistance of counsel (absent the need for immediate action because of their disruptive conduct), and a fair and public hearing where they enjoy the typical protections afforded any accused person, including the right to silence, the right to non-compellability, the right to make full answer and defence, the right to be tried by an independent and impartial tribunal, and to be presumed innocent until proven guilty beyond a reasonable doubt (see Regina v Cohn (1984), 15 CCC (3d) 150 at 157-58, 162, 165-66 (Ont CA); and Regina v Ayres (1984), 15 CCC (3d) 208 at 215 (Ont CA)).
[10] It is not open to a trial judge to impose a guilty plea for contempt upon a witness who is merely reticent about coming to court: compare R v Wong, 2018 SCC 25 at para 3. Here, the appellant was offering some sort of explanation when his ability to do so was interrupted by the trial judge. Further, it is not open to a trial judge to truncate the opportunity of the witness to explain the alleged contempt, or to purge the alleged contempt, or to argue the alleged contempt was purged, or to speak in mitigation of the alleged contempt. As the appellant attended court and did in fact give evidence in the trial of his friend, there was a live issue whether the contempt, if it happened, was purged. The trial judge short circuited all of that.
[11] To summarize, there were no circumstances that justified use of the summary procedure. The appellant, when called as a witness, entered the courtroom, was sworn, and testified. The appellant demonstrated no contemptuous behaviour while in the courtroom. The only issue was whether the appellant, by stating earlier in the day that he would not appear in court, was in contempt. This issue was not urgent or imperative to the proceeding itself. Further, the trial judge erred in that he did not afford the appellant any of the procedural guarantees as required.
[12] The conviction for contempt was a miscarriage of justice.
R v Pearson, 2022 ABKB 655
[October 3, 2022] Mr. Big Admissibility: Abuse of Process by Reference to Non-Existent Witnesses [Reasons by J.T. Eamon J.]
AUTHOR’S NOTE: This case provides an example of a successful exclusion on the basis of abuse of process in a Mr. Big investigation. The police in the Mr. Big interview intimated that there was a witness to the homicide when they knew no such witness existed. The case extends protections from custodial police interviews where such lies have a history of resulting in voluntariness exclusions. There are limits to the tricks and lies police are allowed to deploy in Mr. Big operations.
Introduction
[2] The police targeted Denovan in an undercover operation (Operation Hood) commonly known as a Mr Big operation which started February 5, 2020. The police brought Pearson into Operation Hood on October 21, 2020. The operation ended on October 23, 2020 with the arrest of both accused
[3] In the course of the operation, both accused made statements to undercover operators admitting their involvement in Obina’s murder.
[4] Statements obtained through a Mr Big operation are presumptively inadmissible in the accused’s trial unless the Crown can establish, on a balance of probabilities, that the probative value of each confession outweighs its prejudicial effect (R v Hart, 2014 SCC 52). The Crown applied for a determination that the statements are admissible.
[5] The accused Denovan applied for:
(a) A declaration that the cumulative conduct of the police in Operation Hood amounted to an abuse of process (a section 7 Charter violation) and an order excluding his statements to undercover police in this matter.
(a) A declaration that the cumulative conduct of the undercover operators in Operation Hood amounted to an abuse of process and an order excluding Pearson’s statements to the undercover officers.
Legal Principles
[10] .... [W]here the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility will be overcome where the Crown can establish, on balance, that the probative value of the confession outweighs its prejudicial effect. In this context, the confession’s probative value is a function of its reliability. Its prejudicial effect stems from the harmful character evidence that necessarily accompanies its admission. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant.
[16] ...Confirmatory evidence is not necessary, but where it exists, it can be a powerful guarantee of reliability. The greater the concern raised by the circumstances in which the confession was made, the more important it will be to find markers of reliability in the confession itself or the surrounding evidence (ibid at para 105). Whether evidence can be confirmatory is a common sense analysis of whether the evidence can provide comfort to the trier of fact that the witness is telling the truth (R v Ledesma, 2021 ABCA 143 at para 66, app’n for leave dism, 2022 CanLII 26226).
[74] Bad character evidence causes two kinds of prejudice. It causes “moral prejudice” by marring the character of the accused in the eyes of the jury, thereby creating a risk that the jury will reason from the accused’s general disposition to the conclusion that he is guilty of the crime charged, or that he is deserving of punishment in any event (Handy [2002 SCC 56], at para. 31). And it causes “reasoning prejudice” by distracting the jury’s focus away from the offence charged, toward the accused’s extraneous acts of misconduct (ibid.). As this Court held in Handy, the “poisonous potential” of bad character evidence cannot be doubted (para. 138).
[53] Prejudicial effect is concerned with trial fairness. The trial judge must assess the moral and reasoning prejudice these confessions raise. Moral prejudice involves the jury’s temptation to use bad character evidence for prohibited propensity reasoning, including the involvement in simulated crimes of violence or a demonstrated past history of violence. Reasoning prejudice may arise from the length of the Mr Big operation, the amount of time that must be spent detailing the operation, and controversy over whether an event happened or a conversation occurred, all of which may distract the jury from the charges: Hart, para 106.
[54] With respect to abuse of process, the trial judge looks for coercion of a confession; police violence, or threats of violence; taking advantage of an accused’s vulnerabilities; placing the accused’s or the public’s safety at risk; or other factors which offend the community’s sense of fair play and decency: Hart, para 115-118, 148-149.
[25] The trial judge retains a residual discretion to exclude evidence that compromises trial fairness, even when the evidence has not been screened out by the two-pronged approach (Hart at para 88).
Whether Pearson’s October 23, 2020 statement is admissible
Background evidence
[392] I received transcripts of three conversations between Denovan and Pearson, the first on October 22 at 1102 MDT. It is apparent they were not the entirety of the calls between them after Denovan’s first confession, and at least one call preceded the recorded calls in evidence.
[393] Initially Pearson did not want to come to Regina. Denovan persuaded him to do so. He reported to UC2 that he threatened Pearson that if he did not come to Regina, he would never see his children again.
[394] The organization picked Pearson up in Calgary on October 22, 2020 shortly after 4 pm and drove him to Regina.
[395] UC2 briefly met Pearson on his arrival and placed him in a hotel room overnight with Denovan. There is no evidence of what transpired, in terms of “sorting their shit out” as UC2 had instructed.
[396] Pearson confessed to being a party to the murder in a three way meeting among Pearson, Denovan and UC2 in a Regina hotel room on the morning of October 23, 2020.
Application of Hart analysis
Reliability
[399] An undercover operator who was present while they transported Pearson from Calgary to Regina testified that Pearson was cordial, relaxed, of calm demeanour, and appeared sober. He appeared to live in a normal looking residence that was well kept. He told these undercover operators he owned and worked for a small rebar construction crew and was busy with his construction job. He slept most of the trip, and at a stop purchased a meal with his own funds.
[401] I did not receive any reconciliation of these dramatically opposed descriptions. Maybe Pearson had a turn of luck in his life. Maybe his situation in late October appeared favourable but in reality, was transient or unstable. Maybe Detective Guterson’s information was wrong, but that is hard to assess because he did not describe the sources or details of his information.
[402] There are also gaps in the present record arising from the lack of information of what discussions transpired between Pearson and Denovan in the hotel room.
Prejudicial effect
[413] Overall, the Crown has not discharged its onus with respect to Pearson’s confession and it is not admissible.
Abuse of process – October 23, 2020 statements
[420] In fact, the police had witnesses, but not a witness to the crime. LV heard a man yell “fuck” then a shot fired. She did not see the crime. Firefighters and citizens saw the Jeep apparently on fire or smoking. They did not witness the crime. Police had CCTV of the crime scene, but that is not a “witness” and in any event none of it allows the viewer to identify the shadowy figure who runs toward or from Obina’s Charger vehicle.
[421] Having evidence of the crime does not necessarily equate to having a witness to the crime. The reasonable implication of UC2’s claim was that police had someone who could actually identify the two accused committing the crime or being together shortly before or after the crime. Indeed, page 34 of the transcript made UC2’s intention clear.
[422] Police may lie to and trick criminals. But they do not have a free pass to lie about anything they please, and this additional falsehood must be weighed in the balance with the other inducements and illusions. The police already had a full confession from Denovan. They kept him under the illusion for another two days while they used him as a tool to induce a confession from Pearson. In these circumstances, unnecessarily jacking up the pressure by falsely asserting the existence of a witness to the crime itself crossed the line and became offensive to the community’s sense of fair play and decency. The Court must disassociate itself from such conduct to protect the integrity of the justice system. [PJM Emphasis]
[423] Consequently, I exclude the entirety of the October 23, 2020 statement following the first claim of having a witness (for convenience of reference, and recognizing the transcription is not itself evidence but merely an aid to understanding, this claim occurs at page 7 of the transcribed version).