The Defence Toolkit – January 9, 2021

This week’s top three summaries: R v Reilly, 2020 BCCA 369: #24(2) #connection to violation & factors, R v Dupuis, 2020 ONCA 807: Crown #impeachment of own witness, and R v Spencer, 2020 ONCA 838: mixed #DNA and #identification.

R v Reilly, 2020 BCCA 369

[December 17, 2020] Charter 24(2) – Affirming Importance of McGuffie + Exclusion Where ITO would have issued Even with Excision [Majority Reasons by Griffin J.A. with Fenlon J.A. concurring, Dissent by Willcock J.A] [Affirmed by SCC: 2021 SCC 38]

AUTHOR’S NOTE: Section 24(2) is often an afterthought in judicial reasoning as judges race to the end after finding or failing to find Charter violations. This case is a useful tool for defence lawyers because it refers to a number of important principles in 24(2): 1. a strict casual connection between the violation and the discovered evidence is not required: here, the warrant would have issued even without the initial warrantless entry of police, 2. R. v. McGuffie, 2016 ONCA 365 is now undoubtedly the law across the country since R v Le – So, Where the first two factors under 24(2) [seriousness of the violation and impact on the interests of the Accused] weigh heavily in favour of exclusion, the third factor cannot outweigh them (this principle significantly reduces the potential for arbitrariness and unpredictability in 24(2) results), and finally 3. judges cannot take a piecemeal approach to each violation under 24(2) – they must keep the long term repute of the administration of justice in the forefront of their minds with the overall weight of violations considered (this makes serious violations more difficult to excuse).  Overall, the decision is a great reinforcement of principles and a good exemplar for arguments.  

Overview

[2] One of a person’s most private spaces is their home. More than twenty years ago, in the case of R. v. Feeney,1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, the Supreme Court of Canada made it clear that police are prohibited from entering a private home without a warrant for the purpose of arrest, absent exigent circumstances. The requirement of a warrant before police enter a home avoids after-the-fact rationalizations of the police intrusion. This requirement has since been codified in the Criminal Code, R.S.C. 1985, c. C‑46, s. 529.

[3] In this case, the police entered the home of a suspect, entered his closed bedroom, tackled and arrested him, all without a warrant and without exigent circumstances. They conducted a clearing search of the home during which they saw evidence useful to their investigation. This conduct breached the appellant’s Charter rights. The police then used the information seen in their search, together with other evidence, to obtain a search warrant. Warrant in hand, they searched the home again and seized the items of interest to their investigation.

The Facts

[9] Members of the Royal Canadian Mounted Police (“RCMP”) and a member of the Metro Vancouver Transit Police (“MVTP”) were advised on November 17, 2017, that the appellant was “arrestable” for both robberies after one Timothy Duliepre, arrested for the Boss Vapes store robbery, gave a warned statement to the police identifying the appellant as one of the four masked perpetrators of that robbery. Mr. Duliepre identified the appellant as having a gun.

[11] At the time, the appellant was on probation. His probation order required him to present himself to a peace officer to ensure compliance with his curfew set from 7:00 p.m. to 6:00 a.m. seven days a week. Constable Adzijaj, a member of the MVTP, who had previous dealings with the appellant and could identify him, contacted one of the appellant’s probation officers. The probation officer provided the appellant’s address and described the probation officer’s practice of conducting curfew checks. The probation officer would generally contact the appellant by cell phone to have him come to either the back door or back sliding glass door of the residence.

[13] At their pre-arrest meeting, the police developed a plan for the appellant’s arrest. Various officers were to establish surveillance at the residence. Constables Sinclair and Adzijaj were to go to the rear door of the residence. They were to perform a curfew check by knocking and announcing themselves at the door. When the appellant came to the door, the officers were to arrest him for the armed robberies.

Warrantless Entry

[15] Approximately eight officers, including Constables Adzijaj, Sinclair, and Pare and Corporal Chen, attended the appellant’s residence shortly after 8:00 p.m. on November 17, 2017. Some were stationed in the yard and others went to the door. Constables Adzijaj and Sinclair knocked on the rear door of the residence and announced themselves, but there was no response. They could hear loud music and a dog barking inside.

[16] Constable Sinclair tried the sliding glass door next to the rear door. Finding it unsecured, and without consultation with Constable Adzijaj or any senior officers (all the police officers at the scene were connected by radio transmitters), Constable Sinclair entered the residence. Although Constable Adzijaj was uncomfortable deviating from the arrest plan, he followed Constable Sinclair out of concern for safety. Corporal Chen and Constable Pare followed into the residence shortly after Constables Sinclair and Adzijaj.

[17] Inside the residence, Constable Sinclair went directly to a door he believed provided access to the appellant’s room. He knocked and announced his presence. The appellant opened the door and Constable Sinclair, a large and imposing officer, tackled and arrested him for robbery. Other officers entered to assist. The arrest occurred in the appellant’s bedroom.

Warrantless Clearing Search

[18] After the arrest, officers conducted a cursory clearing search of the residence. Constable Adzijaj searched the upper level of the residence to see whether there was anyone present who might have access to firearms. He asked a male found upstairs who was not associated with the appellant to leave the residence. During the clearing search, Constable Adzijaj saw what he believed to be “vape juice” in an open closet. Constable Pare, who had been stationed outside the rear of the residence, also entered to look for other occupants. He saw a black mask in plain view during his search.

[19] The clearing search took approximately 10 minutes. The police secured the residence while they awaited the issuance of a search warrant.

[21] The day after the warrantless entry and warrantless arrest, on November 18, 2017, at 12:40 p.m., the police executed the search warrant and seized the following items: several packages of “Belmont” cigarettes; various “vape” products; a pair of grey sweatpants; a black mask with a white skull logo; a pair of black gloves; a black Under Armour hoodie; two pairs of Nike running shoes; a CZ 858 model rifle; and a loaded magazine.

The Warrant

[42] I am satisfied the judge identified and correctly applied the relevant legal principles in assessing the validity of the search warrant. I agree with the Crown’s submissions and conclude as follows.

[43] The appellant did not dispute that the ITO as excised established reasonable grounds to believe he was one of the perpetrators of the Boss Vapes store robbery. But he appears to challenge the conclusion that there was sufficient information in the ITO to establish he was the perpetrator of the Deer Lake Market robbery, arguing there was no credibly-based probability that the two robbers in the two robberies were the same person based simply on their clothing. He says Mr. Duliepre did not identify the clothing the appellant wore during the Boss Vapes store robbery. However, the Crown correctly says this submission takes a piecemeal approach to the information, improperly parsing it rather than examining the information in the ITO in its totality. The information came not just from Mr. Duliepre, but also from eyewitnesses and video surveillance of the two robberies. There was a credibly-based probability that the appellant was the person with the handgun and was wearing the same distinctive clothing in both robberies.

[44] Next, there was sufficient information remaining in the ITO from which the justice could infer that items connected to the robberies would be located in the appellant’s residence….

Did the trial judge err in admitting the search warrant evidence in light of the earlier Charter breaches?

The Trial Judge’s 24(2) Analysis

[51] After determining there were reasonable grounds to support the search warrant, the judge concluded the police had breached the appellant’s s. 8 Charter rights on three occasions: (i) when Constable Sinclair entered the residence; (ii) when Constable Sinclair entered the appellant’s bedroom to arrest him; and (iii) when the police conducted the clearing search following the appellant’s arrest (at para. 91). The Crown conceded these three Charter violations.

[56] The judge’s characterization and findings as to the seriousness of the unconstitutional police conduct is significant both as to the errors identified in his s. 24(2) analysis, and to this Court’s fresh and independent analysis under s. 24(2). I therefore reproduce his ruling as follows:

[96] I find that Constable Sinclair acted unilaterally and contrary to senior officers’ directions by entering the residence through the patio door. This was not part of the plan. His entry into the residence, while opportunistic, was potentially dangerous. Not only did he endanger himself, but he also endangered Constable Adzijaj.

[97] Constable Sinclair is physically an imposing individual. In fact, he testified that he is often used in curfew checks because of his size. However, I had a clear impression as he testified that he is not particularly sophisticated when it comes to strategic planning. In addition, he appeared to lack insight into the importance of warrants and the importance of the right guaranteed by s. 8 of the Charter.

[98] It is the conduct of Constable Sinclair that calls into question whether the court ought to disassociate itself from the police conduct at the time of the s. 8 Charter breaches.

[99] In my assessment, I note that, while not the best plan, the curfew check was not illegal. The applicant was subject to a court-ordered curfew.

[100] In addition, I take into account that there was a sense of urgency in planning the arrest of the applicant. Two robberies had taken place involving a firearm allegedly brandished by the applicant. The most recent robbery, of the Deer Lake Market, had occurred one day prior to the arrest of the applicant.

[101] I find that Constable Sinclair’s conduct while opportunistic, was not wilful. He tried the patio door and found that it was not secure. Constable Sinclair did not have to apply any significant force to open the door. While I am dubious, I am not prepared to reject Constable Sinclair’s evidence that he entered through the patio door to give the applicant the opportunity to present himself at the door of his suite to confirm curfew compliance.

[102] I find that, while unlawful, Constable Sinclair’s entry into the applicant’s room and his subsequent arrest of the applicant did not entail conduct that was inhumane or degrading.

[103] I do not find that Constable Sinclair’s conduct is indicative of a pattern of systemic or institutional police disregard of constitutional rights. In Constable Sinclair’s mind he believed his conduct was appropriate. His conduct was negligent and therefore cannot be equated to good faith. I am supported in this finding from his evidence in cross-examination that he would not do anything differently under similar circumstances.

[104] In conclusion, Constable Sinclair’s Charter-infringing conduct was serious. It impacted on the privacy interests of the applicant. Constable Sinclair acted contrary to, or without, senior officers’ directions. Had Constable Sinclair’s conduct in entering the residence had the approval, either implicitly or expressly, of a senior officer, then the overall state conduct would fall at the serious end of spectrum and would likely result in the court having to disassociate itself from the state conduct by excluding the evidence obtained from the search of the residence.

[105] When assessing the totality of the state conduct in this case, I am not prepared to find that the admission of evidence obtained from the search of the residence will likely have a negative impact on the public’s confidence in the rule of law and will, thereby, risk bringing the administration of justice into disrepute.

[106] This factor favours inclusion.

The Legal Framework Under 24(2)

The Threshold: Was there a causal, temporal, or contextual link between the Charter violations and the seized evidence?

[68] The threshold question requires a connection between the Charter violation and the evidence obtained. The connection may be causal, temporal, contextual, or some combination of the three, but it must be more than remote or tenuous: R. v. Wittwer, 2008 SCC 33 at para. 21.

Here, the warrantless perimeter search of Mr. Lauriente’s property, and the highway stop of his vehicle for the purpose of taking his photograph and gathering further information from him, were tactical investigative methods chosen by the police to further the investigation which were sufficiently temporally linked to the evidence discovered upon execution of the warrant to justify the trial judge in moving to the second stage of the s. 24(2)analysis.

[75] Indeed, even where evidence was lawfully obtained before a Charter breach, the necessary threshold connection can be found to exist temporally and contextually. This is because, as Pino explains, the approach to the threshold issue is generous and broad, at para. 51:

… beginning with Strachan [R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980], the Supreme Court has taken an increasingly generous and broad approach to the “obtained in a manner” requirement in s. 24(2) – an approach that looks to the overall purpose of the section, whether admission of the evidence would bring the administration of justice into disrepute.

•         The approach should be generous, consistent with the purpose of s. 24(2)

•         The court should consider the entire “chain of events” between the accused and the police

•         The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct

•         The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections

•         But the connection cannot be either too tenuous or too remote

[77]  The reason for the generous and broad approach to the threshold question is the purpose of s. 24(2). The purpose is to protect the administration of justice from being brought into disrepute, which would occur if the courts were seen to condone a serious Charter violation: Pino at paras. 69–70.

[78] Also pertinent to the present case are the observations of Cromwell J. in Côté at paras. 77–79: that whether or not the telewarrants obtained by the police in that case were valid had little or no impact on the trial judge’s decision to exclude the physical evidence. The trial judge relied on the fact that the totality of the search process was tainted by the unconstitutional searches that preceded the issuance of the warrants. Justice Cromwell said that finding was consistent with well‑established case law on how illegal warrantless searches can taint a subsequent search that is otherwise lawful, of which R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, provided a good example. He wrote:

[79] … In that case, the information obtained through the warrantless perimeter search was used to support the police’s application for search warrants. This Court held that once the illegally obtained information was excised from the affidavits presented to the issuing justice, the information that remained was sufficient to issue the warrants. While this Court held that the warrants were valid, it found that the illegal searches “were nevertheless an integral component in a series of investigative tactics which led to the unearthing of the evidence in question”. It was thus “unrealistic to view the perimeter searches as severable from the total investigatory process which culminated in discovery of the impugned evidence” (p. 255). Similarly, in the case at bar, given the trial judge’s findings of fact that the police misconduct was continual and systematic from the outset of the investigation, the question of exclusion must not be approached in a compartmentalized fashion.

[81] I consider the trial judge implicitly found the required threshold connection between the Charter breaches and the evidence in question, after hearing the appellant’s uncontested submission on the issue. I am of the view he made no error in doing so.

[84] In my opinion, as was the case in Lauriente, Côté and Pawar, the earlier Charter violations tainted the subsequent search, even though the search was conducted pursuant to a facially valid warrant. The appellant has demonstrated a sufficient temporal and contextual link between the unconstitutional conduct of the police and the evidence sought to be excluded.

The Second Stage – Seriousness, Impact, Society’s Interest in a Trial on the Merits

•         Section 24(2) of the Charter provides that, where evidence is obtained in a Charter‑infringing manner, the evidence shall be excluded if its admission would bring the administration of justice into disrepute.

•         While the inquiry under s. 24(2) is often phrased as whether or not the evidence should be excluded, the proper question is whether the administration of justice would be brought into disrepute by its admission.

•         The focus of the inquiry is on the effect admitting the evidence would have on the administration of justice broadly, not the impact of the state misconduct on the criminal trial.

•         In Grant, the Court identified three lines of inquiry relevant to whether evidence should be admitted: (1) the seriousness of the Charter‑infringing conduct; (2) the impact of the breach on the Charter‑protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits.

•         The first two lines of inquiry typically work together to pull towards exclusion of the evidence. However, they do not need to pull with identical degrees of force to justify exclusion of the evidence. It is the sum, not the average, of the first two lines of inquiry that determines the pull towards exclusion.

•         The third line of inquiry typically pulls towards the admission of evidence, particularly where the evidence is reliable and critical to the Crown’s case.

•         If the sum of the first and second inquiries pulls strongly towards exclusion of the evidence, the third inquiry will rarely tip the balance in favour of admissibility. On the other hand, if the first two inquiries make a weak case for exclusion, the third inquiry will often confirm that admitting the evidence will not bring into disrepute the administration of justice.

[89] With the above principles in mind, I will address the arguments on appeal.

Errors in Assessing the Seriousness of the Breaches

[92] The question is really whether, when the judge commented on the totality of other police conduct, the judge was simply commenting on the absence of aggravating factors or was taking into account the presence of mitigating factors.

[93] I am persuaded the judge erred by considering the Charter-compliant conduct of the police as mitigating the seriousness of their Charter breaches. This error is reflected in para. 92 of the judge’s ruling where he said, “[t]here is no question that the conduct of Constable Sinclair resulted in a serious violation of the [appellant’s] s. 8 Charter right. That being said, it is necessary to assess the totality of the police conduct at the time the [appellant’s] s. 8 Charter right was violated” (emphasis added). Following this qualifying statement, the judge then referred to police conduct that was not improper.

[94] In contrasting the “totality of the police conduct” to the seriousness of Constable Sinclair’s conduct, the judge referred to the fact the police were only in the residence for approximately 10 minutes, they did not move or remove any property during their clearing search, and then obtained a warrant they assumed to be valid.

[95] In assessing the “totality” of the police conduct, the judge emphasized conduct that he considered to be professional on the part of other police officers. He found “[b]ut for the conduct of Constable Sinclair, the police otherwise conducted themselves in a professional manner. In particular, I find Constable Adzijaj conducted himself professionally” (para. 95).

[96] In the same vein, the judge found that Constable Sinclair acted without the approval of senior officers, and had they approved his conduct, then the “overall state conduct would fall at the serious end of [the] spectrum” (para. 104).

[97] The difficulty with the judge’s approach is that Constable Sinclair’s conduct alone was already at the serious end of the spectrum.

[100] The logic of the judge’s reasons in referring to other officers not being involved in Constable Sinclair’s misconduct was to identify that the totality of the state conduct was less serious and less likely to require the court to disassociate from it by excluding the evidence (para. 105).

Systemic or institutional abuse of constitutional rights may be an aggravating factor rendering police misconduct more serious. The absence of evidence of systemic non‑compliance with Charter requirements by the police is not a mitigating factor. The police are expected to comply with the law, especially the Charter.

[102] In my view, the judge erred in principle in treating the Charter‑compliant conduct of other officers as attenuating the seriousness of Constable Sinclair’s misconduct. The Charter‑compliant conduct could not mitigate or offset the seriousness of the Charter breaches. Rather, it simply did not further aggravate the already serious Charter breaches.

Errors in Weighing the Grant Factors

[109] The appellant says the judge erred by assessing the effect on the administration of justice independently at the first and second stages of the Grant analysis. After concluding the breaches were serious (Grant inquiry #1), he concluded that the police misconduct would not bring the administration of justice into disrepute. The judge made the same finding after concluding the breaches had a significant impact on the appellant’s privacy interests (Grant inquiry #2). By assessing whether the administration of justice would be put into disrepute separately at the first and second branches of the analysis, the judge overly compartmentalized what is to be a broad, overall assessment. Viewing each factor in isolation undermines the balancing mandated by Grant.

[110] To illustrate the appellant’s submission, it is helpful to reproduce the relevant portions of the ruling. In assessing the first Grant factor—the seriousness of the Charter breaches—the judge said:

[105] When assessing the totality of the state conduct in this case, I am not prepared to find that the admission of evidence obtained from the search of the residence will likely have a negative impact on the public’s confidence in the rule of law and will, thereby, risk bringing the administration of justice into disrepute.

[106] This factor favours inclusion.

[113] The Crown’s argument is superficially attractive. However, on closer examination, I must disagree. In my view, the appellant identifies an error in principle in the judge’s s. 24(2) analysis.

[115] While the trial judge assessed the effect on the administration of justice at each stage of the Grant analysis, such an assessment cannot replace the overall weighing and balancing exercise at the end of all three s. 24(2) inquiries. By considering the effect on the administration of justice of each Grant factor independently, rather than considering all three of the factors collectively, the judge overly compartmentalized what is meant to be a broad analysis. In doing so, he failed to properly weigh and balance the results of each inquiry with the others to determine whether, on an overallassessment, the administration of justice would be brought into disrepute by admission of the evidence. The wording of s. 24(2) itself is plain: “having regard to all the circumstances”. The judge erred in principle by failing to undertake the broader inquiry mandated by s. 24(2).

[116] In compartmentalizing his analysis and concluding separately for each of the first two stages of the Grant inquiry that admission of the evidence would not bring the administration of justice into disrepute, the judge made it inevitable that he would come to the same conclusion on the last stage of the Grant inquiry, which typically favours admission of the evidence. Indeed, it led to the foregone conclusion that the evidence would be admitted because there were no competing factors to balance by way of an overall assessment.

[118] Likewise, had the judge properly conducted an overall assessment of the Grant factors, rather than each one in isolation, the judge would have realized that the seriousness of the breaches and their impact on the Charter‑protected rights of the appellant outweighed society’s interest in the adjudication of the case on its merits. In McGuffie, Doherty J.A. wrote:

[62] 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 interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33‑34.

[63] 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: see e.g. Harrison, at paras. 35‑42; Spencer, at paras. 75‑80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75‑103; Aucoin [R. v. Aucoin, 2012 SCC 66], at paras. 45‑55. 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: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81‑89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98‑112. 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: see e.g. Grant, at para. 140.

[120] Having found the trial judge erred in his s. 24(2) analysis, this Court owes no deference to his conclusion that the evidence obtained in the execution of the search warrant was admissible: Le at para. 138. This Court must therefore undertake a fresh and independent analysis, accepting the underlying findings of fact made by the trial judge not tainted by the errors: Robertson at para. 63, citing R. v. Vu, 2013 SCC 60 at para. 67.

Fresh and Independent Analysis by the Court of Appeal

Seriousness of the Violation

[126] The s. 8 Charter infringements here fall at the very serious end of the spectrum. The violations were flagrant. Since 1997 when the Supreme Court of Canada released its decision in Feeney, police officers have required what has come to be known as a “Feeney warrant” in order to enter a dwelling‑house to make an arrest. The majority of the Court in Feeney summarized the requirements as follows:

51.      To summarize, in general, the following requirements must be met before an arrest for an indictable offence in a private dwelling is legal: a warrant must be obtained on the basis of reasonable and probable grounds to arrest and to believe the person sought is within the premises in question; and proper announcement must be made before entering. An exception to this rule occurs where there is a case of hot pursuit.

[127] The Feeney requirements are now codified in s. 529 of the Criminal Code, …

[134] It is disturbing the police did not discuss the well‑known requirement of a Feeney warrant at their pre‑arrest meeting. It is obviously more disturbing that they entered the appellant’s residence to effect a warrantless arrest in violation of Feeney as codified in the Criminal Code. Nor is it reassuring that as the judge noted, Constable Sinclair testified, “he would not do anything differently under similar circumstances” (at para. 103). The nature and circumstances of the Charter violations place them at the serious end of the spectrum and pull towards exclusion of the evidence.

Impacts on the Charter-Protected Interests of the Accused

[137] The judge found the impact of the breaches to be significant, although not “profoundly” so. I respectfully disagree. The appellant was tackled in his own home in the privacy of his bedroom by a large police officer who was immediately joined by another officer. Additional officers followed shortly thereafter. The impact on the appellant’s Charter-protected rights is connected to the seriousness of the breaches because they were carried out in an area where the expectation of privacy is very high.

[138] The Crown submits the doctrine of discoverability mitigates the impact of the Charter‑infringing conduct. Evidence obtained by unconstitutional means is said to be “discoverable” if the evidence could have been obtained in a Charter‑compliant manner, had the police chosen to do so: R. v. Bains, 2014 BCCA 43 at para. 51; Côté at para. 66. Discoverability can be a relevant factor in both the first and second lines of inquiry under Grant. Justice Cromwell in Côté noted the fact police could have obtained a search warrant will often lessen the impact of the unlawful search on the accused’s Charter rights (at para. 72). However, Cromwell J. warned that: “[w]hile discoverability may still play a useful role in the s. 24(2) analysis, it is not determinative. A finding of discoverability should not be seen as necessarily leading to admission of evidence” (Côté at para. 70). As this Court explained in Pawar at para. 87:

Giving the discoverability doctrine a long leash in cases of this kind risks judicial condonation of serious privacy breaches resulting from unacceptable conduct by investigatory agencies: see Le at para. 158, quoting from R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 at 281. If no remedy is available for unjustified warrantless entries of private dwelling‑houses in cases where grounds to obtain a warrant existed at the time of the unlawful entry, there will be little incentive for the police to adopt Charter‑compliant behaviour. More importantly, the administration of justice may fall into disrepute in the long term if remedies are not granted for the violation of well‑established constitutional precepts.

[140] Although discoverability can be a relevant consideration in assessing the first and second Grant factors, the principle does not carry significant weight in the present case.

[144] In the case at bar, the entry into the home and bedroom, the arrest, and the post‑arrest clearing search encroached on a high expectation of privacy. The impact of the breaches was profoundly intrusive. This second inquiry pulls toward exclusion of the evidence, as noted in Le at para. 141, and Paterson at para. 50.

Balancing

[147] … In my view, as described by Cromwell J. in Côté at paras. 77–79, the Crown is attempting to compartmentalize the Charter breaches and the search pursuant to the warrant. But it is the totality of the search process here that was tainted by the unconstitutional entry, arrest, and clearing search, which preceded the issuance of the warrant.

[149] There is no reason to override this general rule in the present case. The first and second Grant inquiries individually pull toward exclusion of the evidence. Together they outweigh society’s interest in the adjudication of the case on its merits. The overall balancing simply does not and cannot pull in favour of admission of the evidence when the Court’s focus must be on the overall repute of the justice system, viewed in the long term, by a reasonable person, informed of all relevant circumstances and of the importance of Charter rights (Le at para. 140, citing Grant at para. 68).

[152] The police misconduct was wilful and so serious that it is necessary to exclude the evidence obtained in order to disassociate the justice system from the police misconduct and preserve the reputation of the administration of justice.

R v Dupuis, 2020 ONCA 807

[December 16, 2020] Crown Improperly Impeaching own Witness [Reasons by K. van Rensburg J.A. with Janet Simmons and B. Zarnett JJ.A. Concurring]

AUTHOR’S NOTE: Strict rules of evidence and examination often get put aside in the rush to get to the next good question in a criminal trial.  However, such an approach can have dire consequences.  Here, the trial Crown’s examination of their own witness got progressively more sloppy as the evidence continued to come out in favour of the defence. Eventually, the Crown crossed the divid between proper refreshing of the memory of the witness with a prior statement to cross-examination on an inconsistency – without objection from defence or permission from the court. It appears everyone (except perhaps the Crown) thought the Crown had just gotten sloppy, but its purpose had not changed). However, when it came to closing the Crown relied on and obtained an instruction from the judge that the jury should be able to use the discrepancy elicited in this cross-examination to undermine the credibility of the witness. The Court of Appeal overturned on this issue. The case provides a useful example that defence lawyers can use to shut down improper arguments by the Crown before they happen at the pre-charge conference or even through insistence on boring old compliance with the rules at the time of the examination. 

Overview

[1] The appellant was charged with second degree murder in the death of her former boyfriend, Jason Paglia. He died from a single stab wound to the chest. After a trial by judge and jury, the appellant was acquitted of murder, but convicted of the included offence of manslaughter. She appeals her conviction.

[2] The Crown’s theory at trial was that the appellant stabbed the deceased inside her apartment out of anger when he tried to end their relationship. The appellant asserted that her former boyfriend was the aggressor, that he came at her with knives while they argued, and that he was stabbed by a knife he was holding when, in self-defence, she had forcefully pushed him out the door of her apartment.

[3] An important witness at trial was the appellant’s neighbour, Tina Delina, who testified about what she heard and saw at the door to the appellant’s apartment. Ms. Delina was called as a prosecution witness. The defence relied on this witness’s evidence as confirming certain aspects of the appellant’s account of what happened.

[4] The appellant’s first ground of appeal has to do with the trial Crown’s questioning of Ms. Delina with reference to an apparent inconsistent statement she made in the preliminary inquiry, the Crown’s use of the inconsistency in closing submissions to impeach Ms. Delina, and the trial judge’s treatment of the evidence in the jury charge.

[6] Briefly, the appellant’s trial was rendered unfair when the trial Crown cross-examined her own witness using alleged inconsistencies from the witness’s preliminary inquiry evidence, without complying with the requirements of s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the “CEA”), and then used the alleged inconsistencies to attack the credibility and reliability of the witness’s evidence, in particular the parts that were supportive of the appellant’s account. Ms. Delina was a key witness. Her evidence, had it been accepted, served to corroborate aspects of the appellant’s account of how the stabbing of the deceased occurred, and was central to the appellant’s defence of self-defence. Instead of instructing the jury to disregard the improperly elicited evidence, the trial judge permitted Crown counsel to use the fruits of the improper cross-examination for impeachment purposes, and then referred to the potential inconsistencies in her jury charge, inviting the jury to consider them in their assessment of Ms. Delina’s evidence. These errors may well have affected the jury’s assessment of the appellant’s credibility, which was the central issue at trial.

Crown and Defence Theories at the Trial

[8] The appellant and Mr. Paglia had an on-and-off romantic relationship. During the evening of December 2, 2011, Mr. Paglia visited the appellant in her apartment. It was undisputed at trial that the two were arguing, that Mr. Paglia left the apartment at least twice, and that by the end of the evening, Mr. Paglia had been stabbed in the chest. After being injured, Mr. Paglia made his way to the parking garage of the building and his car, where he collapsed and later died.

[9] The Crown’s theory was that Mr. Paglia was stabbed by the appellant in anger inside the apartment after he tried to end their relationship. There was evidence of Mr. Paglia’s blood in the apartment as well as signs of a struggle in the kitchen, including a number of knives scattered around.

[10] The appellant testified that Mr. Paglia had attacked her as they argued about her relationship with another man. She said that when Mr. Paglia came after her with a knife, she pushed him out the door of her apartment and closed the door on him. The appellant testified that she only discovered that Mr. Paglia had been injured when he banged on her door a few minutes later, asking for her help, and that she let him back into the apartment briefly to assist him. She testified that she did not appreciate the seriousness of his injury when he walked out of her apartment. She had followed Mr. Paglia to the parking garage where she found him sitting in his vehicle, and she stayed there until the first responders arrived.

[11] The defence theory was that Mr. Paglia must have stabbed himself accidentally when the appellant forcefully closed the apartment door on him. Dr. Pollanen, a forensic pathologist called by the Crown, testified about the nature of Mr. Paglia’s injury. He acknowledged that the injury could have happened in a number of ways, and he accepted that the defence’s theory was one possibility.

The Impugned Evidence and Its Treatment at Trial

[12] I turn now to consider the alleged improper cross-examination of a Crown witness and its treatment at trial. This arose during the testimony of the appellant’s next-door neighbour, Ms. Delina, about what she heard and saw the night of the incident, and in particular her evidence that she heard Mr. Paglia re-enter the appellant’s apartment after he realized that he was injured. In the course of Ms. Delina’s examination in chief, Crown counsel asked her about an alleged inconsistency between her evidence at trial and what she said in the preliminary inquiry.

[13] The appellant’s position is that Ms. Delina was cross-examined by the Crown without resort to s. 9(2) of the CEA, and that, instead of correcting the situation, the trial judge permitted Crown counsel to use the inconsistency for impeachment purposes. This resulted in prejudice to the appellant because Ms. Delina’s evidence supported, in material respects, the appellant’s own version of the events. Because of the importance of Ms. Delina’s evidence, this rendered the trial unfair.

[17] Ms. Delina testified in chief that she had called 911 on the evening in question and the 911 call was in evidence. Ms. Delina heard banging on the door of the apartment next door and a man yelling “[o]pen up, open up, something happened to me”. Ms. Delina heard the door open and a woman scream and say, “[g]et out, get out” and “[o]h my god, oh my god”. She was uncertain about the timing of the woman’s statements. At trial, she testified that she heard the man inside the appellant’s apartment after she heard the door close.

[18] Ms. Delina’s evidence that she heard the man back inside the appellant’s apartment contradicted the Crown’s theory of events, which was that the appellant pushed Mr. Paglia out the door after stabbing him, and that she never allowed him back into the apartment before he made his way down to the parking garage. Instead, this evidence supported the appellant’s account that, after Mr. Paglia had attacked her and she pushed him out the door, he returned, injured, and she helped him inside the apartment before he left for the parking garage. The fact that he came back inside would, among other things, provide an explanation for the presence of Mr. Paglia’s blood inside the apartment.

[19] On three occasions during Ms. Delina’s evidence in chief the Crown referred the witness to what she had said in her police statement or at the preliminary inquiry. The first two times the Crown expressly said that she was refreshing Ms. Delina’s memory. The defence did not object on any of the three occasions. On the third occasion, the trial judge reminded Crown counsel that this was her witness and that she should try not to lead.

[20] Although the evidence elicited on the first two occasions of “refreshing memory” is not challenged on appeal, how this developed provides context for what followed, and is relevant to the respondent’s argument that, on the third occasion, the Crown was simply trying to refresh the witness’s memory.

[24] On the third occasion, which is the contentious one for the purpose of this appeal, the Crown established a significant inconsistency between Ms. Delina’s evidence at trial – that she heard the man enter the apartment – and her evidence at the preliminary inquiry – that she did not hear any voices after she heard the apartment door close.

[25] The Crown began by referring Ms. Delina to her saying in the 911 call that “[h]e’s still there. He’s inside the house.” The Crown asked Ms. Delina whether she was able to tell if the person entered inside the apartment, and she responded that she “only heard that he went in.” The Crown asked Ms. Delina to explain what she was basing that on, and Ms. Delina testified that, after the woman finished screaming everything toned down, she could still hear people in the apartment but the voice went down, and there was no yelling or screaming.

[26] The Crown advised that she would return to this area of questioning, which she did soon after. She asked Ms. Delina:

Q. You heard the door shut and then your memory today is about hearing that you concluded that he was inside the apartment ‘cause you heard, I can’t remember what your words were, whispering, sort of a different tone of voice?

A. Yeah, the tone of the voice like had gone down.

Although Ms. Delina had not expressed any difficulty remembering, the Crown then took the witness directly to her evidence from the preliminary inquiry. She gave Ms. Delina a copy of the transcript, but did not refer to the fact that she was attempting to refresh her memory, and she did not direct the witness to read the passage silently:

Q. All right. So for your purposes and Counsel’s purposes I want to take you to page 21 of your preliminary hearing transcript.

…

Q. All right, so looking at your preliminary hearing transcript from May 1st , 2013, you recall being asked a question about after you hear the door shut?

A. Yes.

Q. Do you hear anything else?

A. Okay, so I said “no voices”, meaning like the voice wasn’t like escalated. Like I heard talking, but it wasn’t like – like there was like an argument or something. All right. So I don’t know. I don’t know what to say. I said that I didn’t hear no voices, meaning like – like in the time that from what I heard the difference from in the hallway and then him entering into the unit, the tone was different, so….

Q. Okay, so let’s – because the jury doesn’t have the benefit of your transcript…

A. Okay.

Q. …I want to be very fair…

A. Um-hmm.

Q. …to you that we understand what your evidence is.

A. Okay.

Q. All right, so what again you’re referring to is page 21 of your preliminary hearing transcript?

A. Um-hmm.

Q. And the question asked was: “After you hear the door shut, do you hear anything else?”

A. Yes, okay.

Q. And you answered “No”?

A. Yeah.

Q. And then the question is: “No voices?” So you see that?

A. Yeah.

…

Q. So we’re at the top of page 21, preliminary…

A. Yes.

Q. …hearing transcript from May 1st …

A. Yeah.

Q. …2013. You’re asked: “After you hear the door shut, do you hear anything else?”

A. Yeah.

Q. Your answer is: “No”? Correct?

A. Yeah.

Q. Question: “No voices?”

A. Right.

Q. Answer: “No”? You agree?

A. Yes, yes.

Q. Question: “No screaming?”

A. Yes.

Q. Answer: “No”?

A. Right.

Q. All right. And so when you testified back at the preliminary hearing your memory was then you don’t hear any voices, correct?

A. Yes.

Q. And you don’t hear any screaming?

A. Right.

Q. But I want you….

At this point, the trial judge interjected, reminding Crown counsel that this was her witness and examination in chief and that she needed to try not to lead. Crown counsel continued with Ms. Delina:

Q. But I’m just trying to clarify – so your evidence today, and I want to be fair about this, is – what is it that you’re saying that you heard at the door after the door was shut?

A. At that point I just heard a little bit of like talking, but I was – I’m not sure what the conversation was ‘cause at that point after that I know that he had entered I ran to the phone to call 911.

Q. All right.

A. But I didn’t hear any screaming or any loud voices after that because I was at the phone.

Q. And do you recall whether or not you ever said to the police or the court before about hearing voices inside the apartment after the door shut?

A. I can’t remember.

[27] Defence counsel’s cross-examination of Ms. Delina was very brief. He did not return to this area. He did not complain about the Crown’s cross-examination of Ms. Delina either at the time it was taking place or after the jury had left for the day.

The Pre-Charge Conference

[29] The Crown’s intention to refer to the impugned evidence to impeach her own witness became evident during the pre-charge conference, when she asked the trial judge to refer in her jury charge to the inconsistencies between Ms. Delina’s evidence at trial and her evidence at the preliminary inquiry. Crown counsel also advised that she intended to refer to the inconsistencies in her own closing submissions.

[31] Defence counsel objected to the trial judge referring in her charge to the inconsistencies in Ms. Delina’s evidence that were brought out by Crown counsel by reference to her earlier statement, and to Crown counsel relying on this in her closing submissions. He argued that because the Crown failed to bring a s. 9(2) application, her attempt at refreshing memory by reference to a prior statement that was not adopted amounted to no evidence, and that it would be wrong to highlight the alleged inconsistency in the charge to the jury. Defence counsel pointed out that a s. 9(2) application should have been brought if the Crown had wanted to make an issue of Ms. Delina’s credibility when she testified that she heard voices after the door shut. He argued that, “to now put the Defence in a position where the Crown’s going to call their own witness ‘uncredible’ on a point that’s very important to the Defence without having properly suggested it at the time would be [a] huge prejudice to the Defence.” He stressed that this was a “very important point” because Ms. Delina’s evidence that the man, presumably Mr. Paglia, went inside the apartment was consistent with the appellant’s account of events.

[33] Ultimately, the trial judge decided that the jury needed to be told how to deal with the evidence. She proposed that her charge would review the inconsistencies and any explanation Ms. Delina may have given, and, at the request of the defence, that she would confirm that the prior statement was not evidence unless the jury found the witness adopted it.

Crown Use in Closing Submissions

[34] The importance of Ms. Delina’s evidence was highlighted in the defence’s closing submissions. He said that Ms. Delina’s evidence that the appellant sounded shocked and did not expect what she saw when she opened the door, could be “the most important piece of evidence in this case because it sheds light on what [the appellant] did, and what she understood happened” – namely, that while she was defending herself and slammed the door, the knife plunged into Mr. Paglia. Defence counsel asked the jury to accept the evidence of Ms. Delina that Mr. Paglia had entered the apartment, stressing again, “it may be the most important evidence in this case”, and that it was contrary to the Crown’s theory because it was inconsistent with someone intentionally stabbing somebody and then sending them away to die on their own without assistance. With respect to the alleged inconsistency, counsel told the jury that, although the Crown had challenged Ms. Delina on whether she heard people inside the apartment, she was unshaken. Later, in reviewing the evidence which corroborated the appellant’s account, counsel again referred to Ms. Delina’s evidence that Mr. Paglia entered the apartment.

[35] … The Crown told the jury that they should be very concerned about accepting Ms. Delina’s evidence that she heard Mr. Paglia enter the apartment, and she made multiple references to what Ms. Delina said during the preliminary inquiry:

… However, you’ll recall that when her memory was refreshed with her preliminary hearing transcript from May 2013 about what she heard after the apartment door was closed, she testified as follows, question from me, “you were asked” – this is referring to the preliminary hearing, “after you hear the door shut do you hear anything else?” She responds to you at trial, “Yeah.” Question, “Your answer is no,” referring to what she said at the preliminary hearing. I said, “Correct?” and she answered, “Yes.” Question, “No voices?” Answer, “Right.” That’s what she said May 2013 about whether or not there are voices inside the apartment.

…

Ask yourselves why she testified at the preliminary hearing that she [couldn’t] hear anything once the door was shut. Ask yourself why she previously testified the apartment door slammed shut, but at trial she said it closed.

[36] The trial Crown summarized her position on Ms. Delina’s credibility and reliability and again referred to the apparent inconsistency between her evidence at trial and what she said at the preliminary inquiry:

[Y]ou might find that she’s just not reliable. That her claim that Jason entered the apartment after Kaila Dupuis screamed, get out, isn’t reliable for a number of reasons. Given that it doesn’t make sense in context that Kaila Dupuis screamed? That it doesn’t make sense in the context of her distance from the door, and her ability to hear quiet voices even though she’s on the phone with 911? That it doesn’t make sense given the contradiction in her testimony [from] May 2013? And that it doesn’t make sense given that she had the miraculous ability to hear quiet voices at the door, even though she didn’t hear minutes of screaming just minutes before.

[37] Defence counsel objected to indicated that she saw no need to provide an instruction to the jury on that point.

The Jury Charge

[38] The trial judge referred to Ms. Delina’s evidence several times during her charge. In her main summary of Ms. Delina’s evidence, she referred the jury to the alleged inconsistency relied on by the Crown, as well as Ms. Delina’s response when this was put to her. She provided the jury with a standard instruction on the assessment of the alleged inconsistency and the explanation Ms. Delina had given, and its use in assessing credibility and reliability, but not as evidence ofwhat had happened …

… You should remember, however, that unless a witness adopts a prior statement, you cannot use the statement as evidence of what happened. So, after this event, the police came according to Ms. Delina 10 to 15 minutes later. When she opened her door she saw blood on the stairwell door.

The Argument on Appeal

[39] The appellant contends that the Crown improperly cross-examined Ms. Delina without complying with s. 9(2) of the CEA. The trial judge ought not to have permitted the Crown to use the improperly elicited evidence to impeach Ms. Delina’s credibility, nor invited the jury to consider the prior inconsistent statement in assessing the credibility and reliability of her evidence. According to the appellant, what happened here in relation to Ms. Delina’s evidence, which was key evidence because it affected the assessment of the appellant’s own credibility, rendered the trial unfair.

Discussion

[42] As I will explain, in my view defence counsel and the trial judge might reasonably have assumed that Crown counsel was attempting to refresh Ms. Delina’s memory on the third occasion that she put a prior statement to the witness. That said, irrespective of what was perceived to be happening, and whether or not it was the intention of Crown counsel to refresh memory, a s. 9(2) application ought to have been brought if Crown counsel was to use a prior inconsistent statement for impeachment purposes. The record in this case does not permit this court to conclude that there was no harm because a s. 9(2) application would necessarily have succeeded. And in any event the Crown does not rely on the curative proviso in this appeal. In my view, it was wrong for the trial judge to permit the Crown to use the evidence that was elicited without a s. 9(2) application in the same way she would have been allowed to use the evidence if a s. 9(2) application had been brought, and to endorse such use in the jury charge. The trial was rendered unfair because this caused material prejudice to the appellant’s defence.

Refreshing Memory or Improper Cross-Examination?

9(2) Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness’ present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse.

[45] The proper procedure for bringing and considering an application under s. 9(2) is set forth in R. v. Milgaard (1971), 1971 CanLII 792 (SK CA), 2 C.C.C. (2d) 206 (Sask. C.A.), at pp. 221-22, leave to appeal refused, [1971] S.C.R. x. The statement must be produced, and the trial judge must determine whether the prior statement is inconsistent, and then determine whether counsel should be permitted to cross-examine the witness. See also R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413, at paras. 43-51.

[46] Another situation in which a witness’s prior statement may be put before the witness is where counsel is refreshing memory. This is permitted only where the witness is having difficulty remembering. Whether counsel is permitted to refresh memory in this way is in the discretion of the trial judge, and there is a procedure that must be followed. Counsel must lay a foundation by ascertaining whether the witness is having difficulty remembering. Counsel should ask the witness if they wish to refer to a prior statement. If the witness confirms he or she needs assistance remembering and wishes to refer to the prior statement, counsel should seek leave from the court to refresh the memory of the witness. The statement is produced to opposing counsel, who may object to its use. If the court permits the refreshing of memory, counsel should provide the statement to the witness, and instruct the witness to consult the relevant portion in silence. Counsel can then resume questioning the witness: see Sidney N. Lederman, Alan W. Bryant & Michelle Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th Edition (Toronto: LexisNexis Canada, 2018), at ss. 16.128-16.129; Peter J. Sankoff, The Law of Witnesses and Evidence in Canada (formerly Witnesses), (Toronto: Thomson Reuters Canada Limited, 2019), at c. 11.4. If the statement does not refresh the witness’s memory, “no use should be made of it unless the record is admissible under some other rule of evidence”: David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 546.

[48] On a review of the record as a whole, I accept that defence counsel and the trial judge might well have believed that, on the third occasion when the trial Crown confronted Ms. Delina with a previous statement, she was attempting to refresh memory. The Crown’s approach to refreshing memory had become increasingly relaxed throughout Ms. Delina’s examination in chief.

[52] In Slatter no prejudice resulted where the Crown had grounds to refresh the witness’s memory but did not follow the proper procedure. In this case, by contrast, and despite the fact that defence counsel and the trial judge may have believed Crown counsel was setting out to refresh Ms. Delina’s memory, there was no similar basis for Crown counsel to refresh the witness’s memory in respect of the impugned evidence or indeed on any of the three occasions that she put Ms. Delina’s prior statements to her. Moreover, on the third occasion, even if the trial Crown believed that she was refreshing memory, the approach she took was misguided. Without any indication that Ms. Delina was confused or that she had difficulty remembering what happened (to the contrary she seemed firm in her recollection), the trial Crown confronted her with an apparently inconsistent statement she had made in the preliminary inquiry. She effectively impeached Ms. Delina by reference to her preliminary inquiry evidence, without having brought a s. 9(2) application. At the pre-charge conference, with the benefit of hindsight, the trial judge recognized this. The Crown had confronted Ms. Delina with a prior inconsistent statement in a series of leading questions. She then sought to use the inconsistency to undermine Ms. Delina’s credibility and reliability, a classic purpose of cross-examination.

[53] … The only reason that Ms. Delina may have “blurted out” her prior inconsistent answer was that she had been confronted with the transcript which was improperly before her. Her reference to her earlier testimony was a natural response when she was confronted with it, and, rather than asking Ms. Delina whether her memory was in fact refreshed, the trial Crown used the statement to cross-examine her.

[54] Finally, a key distinction between this case and Slatter is in the use of the prior statement and its role in the trial. In Slatter, while the Crown did not follow the proper procedure in refreshing memory, no prior inconsistent statement was put to the witness. The references to his earlier transcript were used to prompt his memory and to permit him to testify about the events. The witness was cross-examined in the ordinary course by defence counsel and he ultimately resiled from some of his evidence. Unlike the present case, there was no improper attempt by Crown counsel to use what the witness said on the earlier occasion to impeach his credibility.

[62] I have concluded that Crown counsel erred in cross-examining her own witness without complying with s. 9(2), and in using the fruits of the cross-examination to impeach Ms. Delina’s credibility in her closing submissions to the jury. The trial judge erred in permitting the Crown to use the impugned evidence in this way and, in her charge to the jury, in directing the jury’s attention to the alleged inconsistencies and inviting their use in the assessment of Ms. Delina’s credibility.

[63] Even if the Crown did not call Ms. Delina for the purpose of impeachment, by the time closing submissions came about, despite what the Crown said, it was clear that this was how the Crown intended to use Ms. Delina’s evidence. She intended to tell the jury to reject the bulk of it based, at least in part, on the improper cross-examination.

[64] The trial judge erred in law in permitting the Crown to do so, and in facilitating the Crown’s approach to the evidence in the jury charge for two related reasons. First, it was prejudicial to the defence to permit the Crown to impeach her own witness on an important issue in this manner. Second, the Crown had not obtained leave to cross-examine and, as a result, the Crown’s approach to cross-examining Ms. Delina left the jury without all the information necessary to appreciate the circumstances surrounding the alleged inconsistency.

[65] As a matter of law, the jury should have been told to disregard the alleged inconsistency and that the improper cross-examination of Ms. Delina could not be used to undermine her credibility or reliability. Instead, the trial judge decided to deal with this evidence in her charge by giving the jury a specific instruction on it. Although her instruction on how to deal with an alleged inconsistency would have been legally correct if the inconsistency had been properly elicited, in these circumstances, she ought not to have told the jury that they could use the improperly elicited evidence as a prior inconsistent statement to assess Ms. Delina’s credibility. Rather, she ought to have specifically instructed the jury to disregard the inconsistency.

[66] First, it was prejudicial to the defence to permit the Crown to impeach her own witness in this manner. As outlined above, Ms. Delina’s evidence was important to the defence because it provided a key piece of corroboration for the appellant’s testimony. The jury could have relied on it to believe the appellant’s evidence, or to conclude that her evidence raised a reasonable doubt. The improper cross-examination occasioned prejudice to the appellant, such that absent a corrective instruction, her trial was unfair.

[67] n R. v. Situ, 2005 ABCA 275, 200 C.C.C. (3d) 9, the Alberta Court of Appeal allowed an appeal from conviction in a judge-alone trial on the basis that the Crown improperly impeached his own witness by cross-examining without first obtaining leave as required by s. 9 of the CEA: at para. 7. The court endorsed the statement in its earlier decision in C.E.N. that “improper cross-examination by Crown counsel of his own witness may result in a new trial where credibility findings by the judge or jury would have been influenced by the cross‑examination, causing prejudice to the accused”: at para. 8.

[71] Unlike in Johnson, where the impugned evidence played no role later in the trial, Ms. Delina’s evidence remained important throughout the trial. In his closing submissions, defence counsel repeatedly stressed the significance of Ms. Delina’s evidence and the role it played in corroborating the appellant’s testimony. In her closing submissions, the trial Crown also focused on Ms. Delina’s evidence. She spent considerable time challenging Ms. Delina’s reliability, recognizing that the jury’s acceptance of Ms. Delina’s evidence could raise a reasonable doubt about the appellant’s guilt. The trial judge gave the jury a specific charge on the impugned inconsistency.

[72] Although the Crown had other reasons to challenge the reliability of Ms. Delina’s evidence that she heard Mr. Paglia enter the apartment (such as her opportunity to observe), the introduction of the prior inconsistent statement provided the Crown with considerable ammunition for her position that Ms. Delina was a confused, and hence unreliable, witness. This in turn harmed the defence’s case, given that Ms. Delina’s evidence provided support for the appellant’s own evidence.

[73] Second, the fact that the improper cross-examination was conducted on the assumption that the Crown was only “refreshing memory” deprived the jury of a complete record on the circumstances surrounding the alleged inconsistency. In other words, the Crown improperly cross-examined its own witness on an alleged inconsistency and was permitted to rely on that inconsistency to impeach the witness. At the same time, because of the way the issue evolved, the jury did not have all the information it needed to assess the inconsistency. The defence was deprived of the opportunity to attempt to rehabilitate the witness on this point because of how the issue unfolded.

[74] Because these errors occurred in a jury trial, the court cannot know what role the impugned evidence played in the jury’s deliberations. However, the improper cross-examination established a basis for the jury to conclude that a key support for the appellant’s version of events was fundamentally flawed. The trial judge expressly told the jury that they could rely on the improper cross-examination in this way.

[76] In my view, the trial Crown’s improper cross-examination of Ms. Delina, together with the Crown’s reliance on the evidence to impeach her credibility and the trial judge’s response, undermined the fairness of the appellant’s trial, such that the appeal should be allowed. …

R v Spencer, 2020 ONCA 838

[December 23, 2020] Identification: DNA in Mixture and No Inconsistencies in Identification Evidence Still Insufficient for Proof Beyond a Reasonable Doubt [Reasons by Paciocco J.A. with Alexandra Hoy and Gary Trotter JJ.A. Concurring]

AUTHOR’S NOTE: DNA on a gun plus a matching description are usually the elements of a prosecution leading to a conviction. Here, the strength of the standard of beyond a reasonable doubt was reinforced by overturning a conviction based on these elements. It is noteworthy that the DNA was in a mixture of four people’s DNA, but that still significantly narrowed the pool of potential people responsible.  The case provides a useful example that circumstantial identification evidence must be capable of exclude all other reasonable possibilities to reach the level of proof beyond a reasonable doubt.

Overview

[1] On October 14, 2017, shortly after closing time for the area bars, Cst. Breau witnessed someone fire a single shot into a crowded laneway. It appears that noone was injured.

[2] Cst. Breau gave chase as the shooter fled, but the shooter escaped. Shortly after, a nine-millimetre Luger semi-automatic handgun (“the handgun”), later linked circumstantially to the shooting, was found under a car along the shooter’s escape route. The DNA of four people was detected on the grip of the handgun. One of the DNA profiles was from the appellant, Nickolous Spencer. Mr. Spencer was subsequently arrested and charged with offences arising from the shooting.

[3] At his trial, no-one provided direct evidence that Mr. Spencer was the shooter. However, based on circumstantial evidence, the trial judge convicted Mr. Spencer, finding that Mr. Spencer’s guilt was the only reasonable inference that could be drawn from the evidence.

[4] In my view, that finding by the trial judge was unreasonable. For reasons that follow, I conclude that the circumstantial identification evidence presented at trial was too generic to establish Mr. Spencer’s identity beyond a reasonable doubt, and that the trial judge committed reasoning errors that led him to find otherwise. I would set aside Mr. Spencer’s conviction and order his acquittal.

The Crime and Investigation

[6] There are many bars and restaurants around the intersection of Ossington Avenue and Dundas Street West in Toronto. On October 14, 2017, at approximately 2:41 a.m., as many people were leaving local establishments, someone called the police to report that a man had pointed a handgun at him. The location of the call was “possibly” an address on Dundas close to Ossington, or a nightclub on Ossington close to the intersection (“the nightclub”). A general description of the suspect was provided.

[7] Cst. Breau responded immediately. He and his partner arrived within a few minutes. They parked their police vehicle on Dundas, just outside a “Green-P” parking lot that abuts Dundas, to its north, and a laneway, to its west. The laneway runs parallel to Ossington and is where the entrance to the nightclub was located. From 20-25 feet away, while inside his police vehicle, Cst. Breau saw a male, wearing a dark hoodie, in the parking lot. Cst. Breau believes the man had his hood up. He watched the male point a handgun westward into the laneway before firing a single shot. Cst. Breau estimated that there were “100 plus” people in the laneway at the time. A shell casing was later discovered in the parking lot.

[8] The shooter then attempted to enter a taxicab on Dundas to the west of where Cst. Breau’s vehicle was parked. He then tried another taxicab. Cst. Breau testified that as the shooter began to enter the second taxicab his “head pops up”. Cst. Breau is of the view that at that point the shooter saw Cst. Breau “running right at him” from “a good 50, 30, 50 feet away”.

[9] The shooter fled on foot westbound on Dundas, and Cst. Breau gave chase. The shooter then turned southbound on Ossington. Cst. Breau, who was running on the road in the traffic, lost sight of the shooter after the shooter turned eastbound on Halton Street, which leads back to the laneway abutting the parking lot. Cst. Breau agreed that the distance he chased the shooter was “about 150 metres”.

[10] A firearm was subsequently located on the north side of Halton St. It was a nine-millimetre Luger semi-automatic handgun. Forensic examination determined an “agreement of class and individual characteristics” between the shell casing found in the parking lot and a cartridge test-fired from this handgun.

[11] The DNA of four people was extracted from the grip of the handgun. One of the DNA profiles was similar enough to Mr. Spencer’s DNA profile that it can safely be concluded that it was his DNA. Security footage was also obtained from the nightclub, taken over an hour before the shooting, showing Mr. Spencer inside the club. Additional surveillance footage, obtained from security cameras along the shooter’s escape route, shows someone running past, followed five or six seconds later by an individual known to be Cst. Breau. The Crown’s position is that based on his size and appearance, it can be concluded that the suspect was Mr. Spencer.

The Evidence at Trial

[13] … The sole issue at the trial was whether the Crown could prove beyond a reasonable doubt that Mr. Spencer was the shooter.

[14] There was no direct evidence that he was. The circumstantial evidence that the Crown relied upon can be placed in three categories: (1) DNA evidence; (2) description evidence (provided by Cst. Breau); and (3) the surveillance videos. I will now describe each of these in more detail.

1. DNA

[15] Dr. Claxton of the Centre for Forensic Science testified about the four DNA profiles extracted from the grip of the handgun. He explained that the DNA from each person could have been deposited by direct contact, or indirectly, such as by sneezing in proximity to the handgun. Dr. Claxton also testified that the sequence of contact could not be determined.

2. Description Evidence

[16] At the trial, Cst. Breau said that he would not be able to recognize the shooter. There were limitations in his opportunity to observe, given distance, perspective (for most of the time he was looking at the shooter’s back), and the darkness, illuminated only by artificial light.

[17] Cst. Breau gave relatively detailed evidence about the “hoodie” worn by the shooter: “[I]t was a dark grey/white sort of hoodie/jacket with a hood. To me it looked almost like the snow on the old televisions but it was a darker colour than the white that’s in that snow on the television. It was kind of speckled,” or “checked like the old checkered TV.” He said if he had to pick a colour it would be “dark grey”, but he affirmed during cross-examination that it was “definitely patterned, not a single colour”. He could not describe anything about the style of the hoodie/jacket other than to suggest that its length was to the hip area, and he did not see any logos or patterns….

[18] Cst. Breau did offer some descriptive details of the shooter, but he testified that he had not seen the shooter’s facial features. He described the shooter as “a male black, light skinned, dark afro hair, thinner build, skinnier build about five, five-ish, 5’4” in height I believe”, and he described the shooter’s hair as “shorter”. When asked if he could give an approximate age he said, “Only what was given in the text of the [police] call, which was approximately 24 years of age”. He then said that from a distance he would “put” the shooter in his “mid-20’s”.

[19] When Mr. Spencer was arrested, his height was recorded as 5’7”. At his trial, Mr. Spencer did not appear to have a thinner or skinnier build. Instead, he presented as muscular.

[20] When asked how similar in appearance the shooter had been to the other individuals “who were around him”, Cst. Breau said: “In terms of male blacks and clothing, ah, there were, well there were 100 plus people there in the laneway and a lot of people had some dark clothing on, hoodies and were male blacks.”

3. Surveillance Video

[21] A security camera video in the nightclub captured coloured images of Mr. Spencer at approximately 12:30 a.m. He is wearing a dark, puffy jacket with a lightcoloured patch on the left arm below the shoulder, as he climbs a staircase leading to the entrance of the club.

[22] Black and white security video images of Mr. Spencer were captured inside the nightclub. As he is entering and being checked by the doorman, he appears to be wearing a dark puffy jacket. In some of the still images, extracted from the video and admitted into evidence, the jacket appears to be lighter in colour than the pants he is wearing. Subsequently, including when he can last be observed, shortly after 1:00 a.m., Mr. Spencer is wearing a t-shirt without a jacket. The images taken inside the nightclub also show that he is wearing light-coloured running shoes with dark markings. The trial judge described the images as “grainy”.

[23] Coloured security video from 213 Ossington was also admitted into evidence, as Exhibit 13. A man wearing dark clothing and white shoes can be seen running swiftly past a small crowd of people. Approximately five or six seconds later, a police officer, known to be Cst. Breau, is seen running in the same direction down the middle of the road. A grainy still image extracted from this security video, used by the Crown during closing argument, shows the first man in motion as he runs past the people on the sidewalk. His left arm is largely obscured by another individual. The Crown contends that a light marking could nonetheless be observed on the man’s left arm.

[24] Black and white images of the street, taken from a security camera at 219 Ossington, show a male running southbound wearing dark clothing and lightcoloured shoes. The video was entered into evidence as Exhibit 15 A. The images are grainy and blurred. The Crown contends that the surveillance film shows a light-coloured patch on the upper left arm, and white shoes with dark markings.

[26] During his testimony, Cst. Breau was shown this video footage. When asked if he could recognize this person, Cst. Breau testified: “Well that running by certainly matched the same male that I was chasing earlier…. Uh, it went by very quick.” When the video footage was slowed, Cst. Breau said: “That looks like the same black jacket and short black hair”.

[28] None of the surveillance images from along the escape route capture the suspect’s face.

The Ruling at Trial

[34] In his reasons, the trial judge relied heavily on the surveillance video from 199 Ossington, which he described as “not colour” and “of poor resolution”. The images from the inside of the store are in fact in colour. He said:

When slowed to a frame-by-frame series of photographs, the video records both the footwear of the runner and a patch of white on the upper left shoulder area of his clothing…. My assessment is that the footwear in this video is consistent in both general appearance and trim with the footwear worn in the [nightclub] earlier that morning by Mr. Spencer.

Both the image of the white patch captured in the 199 Ossington video and the upper left arm patch on the jacket worn by the defendant in the [nightclub] are indistinct. While it is not possible to discern the shape or detail of either the white arm patch on the upper left arm of the jacket of the shooter running southbound on Ossington or that seen on Mr. Spencer in the [nightclub], the white patch is a feature that distinguishes the jacket from similar garments worn in the [nightclub] and on the path of the shooter’s flight.

[36] The trial judge then summarized, in para. 27 of his reasons, why he was satisfied beyond a reasonable doubt that Mr. Spencer’s identity as the shooter was the only reasonable conclusion that could be drawn from the Crown’s circumstantial case:

The following evidence is available to link Mr. Spencer’s DNA, found on the handgun grip, to the relevant time, place and criminal act:

1. The defendant’s admitted presence at a club located a few feet from the location of the shooting within several hours of the shooting.

2. The fleeting glance by Constable Breau of the shooter, a man not inconsistent with Mr. Spencer, and the continuous visual contact the officer maintained as the two men passed the video surveillance at 199 Ossington Avenue until he lost sight of the shooter on Halton.

3. The consistency between the images of the footwear and the jacket with the white patch worn by the fleeing shooter captured on the 199 Ossington surveillance video and that worn by Mr. Spencer in the [nightclub].

4. The discovery of the firearm used in the shooting on the shooter’s escape route within a few minutes of the shooting.

5. The discovery of the spent cartridge at the location of the shooting and the forensic evidence establishing its connection to the handgun.

6. The consistency between the image of the jacket with the white patch worn by the male captured in the lane surveillance camera, as he walked northbound within a few minutes of the shooting and that worn by Mr. Spencer in the club.

[37] On this basis, the trial judge concluded that the totality of the evidence excluded the possibility of innocent coincidence and established Mr. Spencer’s identity as the shooter.

DID THE TRIAL JUDGE ERR IN FINDING THAT MR. SPENCER’S GUILT IS THE ONLY REASONABLE CONCLUSION AVAILABLE ON THE CIRCUMSTANTIAL EVIDENCE?

[42] Appropriately, during argument, the Crown drew our attention to the admonition that an appeal court must recognize that “[i]t is still fundamentally for the trier [of] fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt”: Villaroman, at para. 56, citing R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at para. 22. This does not mean that an appeal court must leave it to the trier of fact to determine whether it is reasonable to convict. Reading the admonition in this way would eliminate unreasonable verdict appeals in circumstantial evidence cases.

[43] The essential point is the familiar one: that appeal courts should not overturn verdicts simply because they would have found to the contrary. A reviewing court must treat a verdict with great deference and pay due regard to the advantages the trier of fact had at the trial: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras 2, 27; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-37. A verdict should be found to be unreasonable only where the verdict is one that a properly instructed trier of fact could not reasonably have rendered on the totality of the evidence: W.H., at para. 26; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at para. 23; and see Biniaris, at para. 37.

[44] As Cromwell J. makes clear, in a circumstantial evidence case such as this, the salient question is “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”: Villaroman, at para. 55.  In my view, the conclusion that Mr. Spencer is guilty of the offences that are the subject of this appeal is not the only reasonable conclusion available on the totality of evidence. The problem is not simply that there are other, reasonable, innocent conclusions available. It is that the findings of guilt are themselves unreasonable because the totality of the evidence is incapable of supporting a reasonable finding that the Crown proved Mr. Spencer’s identity as the shooter beyond a reasonable doubt.

[45] In coming to this conclusion, I have considered the advantages that the trial judge had at trial. I appreciate that the trial judge had the benefit of a four-day trial including full trial submissions, but, beyond this, the advantages of the trial judge are few. He had the benefit of hearing and observing the testimony of witnesses, but this prosecution did not turn on whether the testimony of witnesses should be credited. It turned on the sufficiency of undisputed evidence: the DNA evidence, Cst. Breau’s description evidence, and the surveillance videos. I take no issue with the trial judge’s conclusions relating to the DNA evidence or with the description that Cst. Breau provided, and I have had the opportunity to examine the surveillance videos, just as the trial judge did. I bear in mind that we must respect the fact that it was the trial judge’s role to determine Mr. Spencer’s guilt or innocence, not ours. However, I am persuaded that the decision he arrived at is unreasonable and cannot stand.

[47] At some unknown point in time, Mr. Spencer handled, or was in proximity to, the firearm used in the shooting. Over an hour before the shooting, Mr. Spencer was in the vicinity of the shooting, at the nightclub that the shooter may have attended. It is not known whether the three other unknown persons, who handled or were in proximity to the firearm, were also in the vicinity of the shooting, nor is it known whether, like Mr. Spencer and the shooter, they too were Black, young-adult males with shorter hair.

[48] In addition, Mr. Spencer wore dark clothing, as did the shooter, and as did many of the other Black, young-adult males in the vicinity at the time. When asked to comment on how similar the shooter’s appearance was to others around him, Cst. Breau did not suggest that it was unusual for the shooter to be wearing a winter jacket, and no such evidence was presented.

[49] Mr. Spencer’s winter jacket had an indiscernible light-coloured patch below the shoulder of the left arm and so, too, did the shooter’s jacket. However, no evidence was led as to how common or uncommon it is for winter jackets to have such patches on their left shoulders. It is also unknown whether the shooter’s coat was puffy, as Mr. Spencer’s was. It may have been. Although the shooter’s jacket appears to be solid coloured in the surveillance images showing his flight, as Mr. Spencer’s jacket appears to be in the nightclub surveillance videos, the shooter’s jacket may in fact have been patterned, as Cst. Breau described, and not of a solid colour, like the one Mr. Spencer is seen wearing. This cannot be known because the footage of the fleeing suspect is grainy and indistinct.

[50] In the grainy images available from the nightclub, captured more than an hour before the shooting, Mr. Spencer was wearing white runners with an unidentifiable dark-coloured pattern. The resolution does not permit the darkcoloured pattern to be identified or its colour determined. That dark-coloured pattern may have been blue or turquoise, as the coloured pattern on the shooter’s white runners appears to be, but, then again, it may not have been blue or turquoise. It is impossible to tell. The dark-coloured pattern on Mr. Spencer’s shoes may match the precise shape of the dark-coloured pattern on the shooter’s shoes, but, once again, given the poor quality of the relevant images, this cannot be ascertained. The most that can be said is that no inconsistencies in general appearance or trim between the running shoes can be confidently noted.

[51] With respect, it cannot reasonably be concluded that this evidence excludes the possibility of innocent coincidence. Quite simply, even if the points of distinction are put to the side, the totality of the evidence is too generic to reasonably permit the identification of Mr. Spencer as the shooter, or the elimination of all other potential suspects, beyond a reasonable doubt.

[52] Where an appeal court finds a trial judge’s verdict unreasonable, the appeal court “may be able to identify a flaw in the evaluation of the evidence, or in the analysis”: Biniaris, at para. 37. Where this is so, the court “should identify the defects in the analysis that led the trier of fact to an unreasonable conclusion”: Biniaris, at para. 37. Here, three defects in the trial judge’s analysis can be identified that appear to have contributed to the unreasonable conclusion that he reached.

[53] First, in para. 27 of his reasons, reproduced above in para. 36 of this decision, the trial judge listed six factors that he found linked Mr. Spencer to the firearm at the relevant time, place, and criminal act. Of those six factors, two were entirely irrelevant in linking Mr. Spencer to the firearm. The discovery of the firearm along the escape route (the fourth factor) and the spent cartridge (the fifth factor), assist in establishing the shooting and the escape route but offer no assistance in identifying the shooter.

[54] Second, the trial judge appears to ascribe more incriminating weight to Cst. Breau’s “fleeting glance” evidence (factor 2) than it fairly warrants. To be sure, the trial judge finds only that Cst. Breau’s evidence is “not inconsistent with Mr. Spencer” but even that conclusion is not supported by the evidence. Cst. Breau was clear in describing the jacket worn by the shooter as patterned, yet the jacket worn by Mr. Spencer does not appear to have been patterned. Moreover, Cst. Breau does not describe the shooter’s jacket as puffy but the jacket worn by Mr. Spencer is clearly puffy. Finally, although the discrepancy is not significant, Cst. Breau described the shooter as 5’4” tall, perhaps 5’5” tall, whereas Mr. Spencer is 5’7” tall. Although it may well be true, as the trial judge reasoned, that Cst. Breau may have misjudged the shooter’s height because of the fleeting glance, he may not have done so. Moreover, other observations made by Cst. Breau, that the trial judge chose to rely upon, were also made by fleeting glance. I need not make a firm finding that the trial judge misapprehended any of this evidence to resolve this appeal. It is enough to observe that a reasonable determination requires that these shortcomings in the Crown case be considered, yet it does not appear that they were.

[55] Third, the trial judge relied on the “consistency between the images of the footwear and the jacket with the white patch worn by the fleeing shooter captured on the 199 Ossington surveillance video and that worn by Mr. Spencer” (factor 3). In fact, for the reasons offered in paras. 48-51 of this decision, the most that can reasonably be said is that the footwear and jacket may be consistent, but this cannot be determined, given the poor quality of the video.

[56] In sum, I am persuaded that it was not reasonable for the trial judge to have found that Mr. Spencer’s guilt is the only reasonable inference available on the totality of the circumstantial evidence. An alternative available reasonable inference, indeed, the only available reasonable inference, is that there is a reasonable doubt about whether Mr. Spencer was the shooter.

CONCLUSION

[57] I would therefore allow the appeal, set aside Mr. Spencer’s convictions and the findings of guilt made against him on the charges arising from the October 14, 2017 shooting. Where, as is the case here, convictions cannot be supported by the evidence, the appropriate remedy is an acquittal: R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 14. I would therefore order the acquittal of Mr. Spencer on these charges.