This week’s top three summaries: R v Gauthier, 2021 ONCA 216: alternate #suspect & #experts, R v Alas, 2021 ONCA 224: #provocation, and R v Dindyal, 2021 ONCA 234: #motive to fabricate.
R v Gauthier, 2021 ONCA 216
[April 9, 2021] Alternative Suspect & Maintaining Limits on Expert’s Evidence [Reasons by A. Harrison Young J.A. with P. Lauwers and Grant Huscroft JJ.A. concurring]
AUTHOR’S NOTE: The line between a defence based on a specific alternative suspect and on reasonable doubt based on a lack of evidence that the accused committed the offence is sometimes difficult to draw. The proper line is important because the moment the defence is actually an alternative suspect defence, the accused has an onus to prove an air of reality to be able to lead the evidence. This can cut the legs out from under a defence theory mid-stream. Defence counsel must be prepared for the Crown objection when they venture in this territory. Herein Justice Harrison Young provides a good overview of what happens when the judge gets the distinction wrong in a child pornography possession case. Essentially, suggesting someone else had an opportunity to commit the offence – even a specific person – does not venture into an alternative suspect defence. When the defence leads evidence to prove the other person did it like evidence of motive and propensity, the defence likely ventures into that territory.
In technology-based offences, the line between non-expert and expert evidence is often also difficult to draw. Where does practical knowledge of an application’s operation end and expert evidence begin? Here, the Court of Appeal drew the line at the expert testifying about an untested theory about syncing on the Skype platform across devices. The Trial Judge failed to limit the testimony to the expertise previously allowed to this witness and it was not something the witness could testify from practical experience as they had not tried to test the theory in practice.
Facts
[2] The appellant came to the attention of police when they received a tip from the National Center for Missing & Exploited Children (NCMEC), stating that an image of child pornography had been uploaded to Skype from his IP address by an account called “dave.j.dunham” on January 30, 2017. The police traced the IP address to Mr. Gauthier’s home. They searched the home and seized Mr. Gauthier’s phone and laptop. They found 18 images on his laptop and 121 images and 3 videos on his phone. The police also found records of graphic Skype chats which formed the basis of the making child pornography charge. There was no dispute that the materials, including the chat messages, were child pornography. The issue at trial was identity: did the Crown prove that the appellant put the material on his devices?
[3] The case against the appellant was circumstantial. The appellant lives with his partner, and at least one other person had lived with them in the few years prior to the charges. Neither his computer nor his cell phone were password protected. The evidence for the Crown rested on a post-arrest interview with the appellant; the evidence of Det. Sandor Illes, an internet child exploitation investigator with the Waterloo Regional Police Service; and the evidence of Det. Allison Laing, a retired computer forensic examiner with the Waterloo Regional Police Service. Det. Laing was qualified as an expert, although, due to certain procedural irregularities discussed below, the basis for her qualification and the scope of her expertise was confused.
The Decision Below
[9] After giving a brief overview of the facts, the trial judge discussed the legal principles involved. He directed himself on the principles set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. In addition, he stated that the defence had “submitted that an alternative suspect, a former roommate” could have committed the offences. As a result, he determined that the test for a third-party suspect in R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, and R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, applied. He did not discuss the Villaroman case in his reasons.
[10] The trial judge summarized the defence as resting upon the following five “pillars”:
- The appellant did not have exclusive opportunity to access, possess or distribute the child pornography on the two devices;
- The emails that he provided as exhibits could only have been produced at his place of employment and therefore establish that he was at work and not at home on January 30;
- The cell phone records provide evidence that he was in his office making calls and therefore not at home on January 30;
- He was in public settings when the majority of the other downloads were made and therefore could not and would not have been using his cell phone or laptop during those times; and
- He is a credible witness who should be believed or at least his evidence should raise a reasonable doubt.
[11] After rejecting each pillar of the defence, the trial judge concluded that the Crown had proven its case beyond a reasonable doubt…
Inadmissible Evidence on the Functioning of Skype Technology
[16] The trial began with a voir dire on the qualifications of the Crown’s expert, Det. Laing. The Crown initially sought to qualify her as an expert to “provide evidence relative to computer examination, data analysis, computer, and cell phone forensic analysis and data retrieval.” The defence challenged her qualifications on the basis that she was not sufficiently independent. During submissions, the Crown argued that Det. Laing’s testimony was essential to prove the mens rea of the charged offences.
[18] After hearing Det. Laing’s testimony on the voir dire and the parties’ argument, the trial judge issued a ruling disqualifying her because she was not sufficiently independent to testify as an expert. However, his ruling was based on a misapprehension of the facts surrounding her contact with Det. Illes and the investigative team. The trial judge based his independence conclusion on the finding that Det. Laing had discussed the investigation with Det. Illes and seen his work product and conclusion that the appellant was dave.j.dunham in May 2017 before she completed her initial forensic report. However, these discussions took place in May 2018, well after she had completed her initial forensic report.
[19] After this ruling, the Crown advanced an alternative argument for the admissibility of her testimony: that Det. Laing was a lay witness with specialized knowledge of forensic computer analysis.
[20] On the third day of trial, the trial judge reversed his ruling disqualifying Det. Laing due to his misapprehension of the facts. After this ruling, the Crown said it sought to elicit only specialized knowledge lay evidence, not expert opinion. The trial judge did not indicate whether he was permitting Det. Laing to give expert opinion or lay evidence based on special knowledge. Nor did he delineate the scope of the matters about which she could testify. In short, the basis upon which her evidence was admitted was never clarified. [Emphasis added by PM]
[21] On appeal, the appellant argues both that Det. Laing should not have been permitted to testify at all either because she was not sufficiently independent or because, in any event, critical parts of her evidence (particularly in relation to Skype) were beyond the scope of her expertise and specialized knowledge.
The Principles
[23] An expert witness owes a duty to the court to be fair, objective and non-partisan: White Burgess, at para. 46. In order to meet the threshold requirement, the expert must be able and willing to carry out her duty to the court. The threshold requirement is “not particularly onerous and it will likely be quite rare that a proposed expert’s evidence would be ruled inadmissible for failing to meet it”: White Burgess, at para. 49. Concerns about an expert’s independence and impartiality are also relevant at the gatekeeping stage: White Burgess, at para. 54.
[24] A trial judge’s gatekeeping role, however, does not end when the admissibility inquiry is over. It is critical for a trial judge to be alive to the continuing gatekeeper role throughout the trial and to be conscious of what is and is not evidence properly before the court: R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 722, at para. 46. As part of the ongoing gatekeeper role, the trial judge must ensure that an expert’s testimony “stays within the proper bounds of his or her expertise”: Sekhon, at para. 47.
Application: Expert Evidence
[26] A problem, however, arose from the trial judge’s failure to delineate and to monitor the scope of her testimony, and particularly, her evidence on remote syncing and Skype as it emerged in the course of her testimony.
[27] In cross-examination, Det. Laing was asked technical questions about the operation of Skype. When asked about specific Skype settings on the appellant’s computer, she admitted that she was “not an expert in Skype.” Later in the crossexamination, she was asked about the nature of Skype syncing:
Q. The possibility of individual A being able to engage in Skype activity on his or her computer; individual B, who’s also synched to that same Skype account may not know what individual A is doing, if individual B’s computer is not on. And the witness had indicated that’s possible.
…
[I]f my individual B a month later, two months later logs onto the computer and goes on to Windows and I’m going on the basis that the box is ticked that Skype automatically comes up, all the content of A’s Skype communications will be picked up on B’s computer, won’t it?
A. So if you’re, if you’re asking me whether once B then logs on to their account and it’s connected to the server and it syncs, then yes.
[28] Defence counsel then asked, if individual A uploaded a photograph to Skype that synced onto individual B’s device, whether the image would have appeared to have been uploaded from individual B’s device as well:
Q. Okay. And let me ask you this, if, if an image had been sent, let’s stay with that scenario, A had uploaded an image from the Skype account to another location, would it appear that the image had been uploaded from both devices? Do we see uploading, because they’re both synced, would it appear that they’ve both been uploaded or uploaded from both devices?
A. I don’t know.
[29] Det. Laing then articulated an untested theory about how the data would appear on each device:
A. I’m, I’m having – wouldn’t have tested this, but I would think there would be a file path where you’re acquiring this from each device that would help identify where it’s coming from, but I don’t know.
Det. Laing’s evidence on the possibility of remote syncing and the different file paths is discussed in more detail on the misapprehension of evidence issue.
[30] … The very general basis for Det. Laing’s expertise – “computer examination, data analysis, computer and cell phone forensic analysis and data retrieval” – says nothing about social media platforms and, in particular, Skype. Det. Laing, by her own admission, was not an expert in Skype.
[31] I would allow this ground of appeal. While the trial judge did not err in declining to exclude Det. Laing’s evidence on the basis that she lacked independence, he erred in failing to limit the scope of her evidence in relation to Skype. In the circumstances of this case, I am unable to conclude that the case against the appellant was so overwhelming that conviction was inevitable in the absence of this evidence. Although that disposes of the appeal, I will address the other grounds because they were fully argued before us in the course of the appeal.
Exclusive Opportunity or Alternative Suspect?
[33] After setting out the W.(D.) test early in his reasons, the trial judge went on to say that “an alternative suspect”, Mr. Collins, who had been a roommate of Mr. Gauthier and his partner, was a person who could have committed the offences. He stated that:
In order for a court to consider a ‘third party suspect’ there must be a sufficient connection between the third party and the crime. As stated by Karakatsanis J. in R. v. Grant, 2015 SCC 9 at para 24, “evidence that this third person had the motive, the means, or the propensity to commit the crime will often establish this sufficient connection.”
[34] The trial judge then stated that there must be an “air of reality” to trigger the consideration of whether or not the offences were committed by a third party, citing Grandinetti.
[35] It is common ground that the trial judge mistakenly referred to the Grandinetti test when the Villaroman analytical framework applies. The Crown, however, argues that this was of no moment because the trial judge actually applied the Villaroman test.
[37] On appeal, the appellant argues that applying the Grandinetti framework effectively reversed the burden of proof because applying the Grandinetti test limited, from the outset of the analysis, the range of potentially innocent explanations for the evidence of illegal activity on the appellant’s devices, while the Villaroman test precludes conviction on circumstantial evidence if there is another reasonable explanation inconsistent with guilt. This court has allowed appeals from conviction in cases where the trial judge has misunderstood the approach to circumstantial evidence and implicitly required the defendant to explain what happened. This is reinforced by the trial judge’s statement in the course of his explanation for rejecting the appellant’s evidence:
I appreciate that the Defence bears no onus to prove the innocence of Mr. Gauthier and that the onus of proof always rests with the Crown, but in my view, much of this evidence was problematic for the reasons I have set out and I find that it did not exonerate Mr. Gauthier as suggested by the Defence.
The Principles: Reversing Onus of Proof
[40] It is trite to say that the presumption of innocence and the duty of the Crown to prove guilt beyond a reasonable doubt form the golden thread of criminal law: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, at p. 120. One consequence of the principle of proof beyond a reasonable doubt is that, in cases resting upon circumstantial evidence, the trier of fact should consider other reasonable inferences inconsistent with guilt: Villaroman, at para. 37. This is because of the danger that a trier of fact may fill in the blanks or bridge gaps in the evidence “to support the inference that the Crown invites it to draw”: Villaroman, at para. 26.
Application to this Case
[41] The starting point of the trial judge’s reasons was the Grandinetti air of reality test, which effectively required the defence to show that a particular identifiable person (Mr. Collins) had a sufficiently strong connection to the offences to meet the air of reality test and justify serious consideration. This set the stage for the risk of an improper shifting of the burden of proof to the accused because, once the trial judge concluded that Mr. Collins could not have committed the offences, that left the appellant as the remaining possible perpetrator. The defence evidence was considered against this backdrop.
[44] Mr. Gauthier testified that Mr. Collins had unrestricted access to his laptop which was not password protected, and that his roommates used his laptop.
[45] The trial judge then turned to consider whether the person responsible for the child pornography found on the appellant’s devices was Mr. Collins or Mr. Gauthier. Mr. Gauthier’s evidence was that Mr. Collins had been a roommate between October 2014 until December 2016. The trial judge found that the dave.j.dunham account had been created in order to disguise the identity of the real user. Given that Dunham was Mr. Gauthier’s mother’s maiden name and few people would have known that, it was logical to conclude that Mr. Gauthier created it.
[49] The trial judge found that had Mr. Collins been the one to set up the dave.j.dunham account, he would have discovered the Skype account that was still being used by Mr. Gauthier. Moreover, the trial judge expressed the view that it defied common sense to believe that Mr. Gauthier, an engineer, would not have noticed this earlier. That left Mr. Gauthier as the sole person who could have committed the offences.
[50] The trial judge’s approach reflects a failure to clearly apply Villaroman. His reference to the of test from Grandinetti risked shifting the burden of proof. At the same time, the trial judge was well aware that the Crown had to prove its case beyond a reasonable doubt. He correctly articulated the three steps of W.(D.) and applied those steps. He rejected the appellant’s evidence, finding it inconsistent and self-serving. He stated, after dismissing the five “pillars” of the defence, that the evidence as a whole did not leave him with a reasonable doubt. There was, as the Crown argues, significant circumstantial evidence implicating the appellant. Nevertheless, setting out the Grandinetti third party suspect framework at the outset set the stage for an unfair assessment of the Villaroman test which appeared to place an unfair burden on the appellant. This concern was exacerbated by the trial judge’s comment that the evidence did not “exonerate” the appellant. [Emphasis by PM]
[51] The narrow question is whether, against such a backdrop, the failure to clearly apply Villaroman in these circumstances is a fatal error that requires a new trial. The respondent submits that given the circumstantial evidence in this case, this court should apply the curative proviso. This would not be appropriate in this case because the error was compounded by misapprehension of the evidence, to which I now turn.
Conclusions
[69] A key question at trial was what, if anything, the user of Mr. Gauthier’s devices would have had to do for the illicit images to end up in the “My Skype’s received files” folder. If deliberate human action was required to “accept” a file transfer before it could end up in the folder, then Det. Laing’s evidence could support a finding that the appellant had deliberately taken possession of those images. However, Det. Laing’s testimony was confused on this point.
[73] Considered as a whole, her evidence does not clearly establish that the appellant deliberately “accepted” the files and therefore had the requisite knowledge to establish possession. Moreover, as I have already outlined, her evidence as to the functioning of Skype was inadmissible because she recognized that she did not know how it worked. Without this evidence, there was no evidence that the appellant knew that he had physical custody of the images. Knowledge of possession is an essential element of possession: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 16; R. v. M.N., 2017 ONCA 434, at para. 37. There was no other evidence on the point.
[77] For these reasons, I would allow the conviction appeal and order a new trial with respect to the accessing, making available, and making child pornography counts. I would order that an acquittal be entered with respect to the possession count. It is not necessary to consider the sentence appeal.
R v Alas, 2021 ONCA 224
[April 9, 2021] Provocation [Reasons by Tulloch J.A., with P. Lauwers J.A concurring, Dissent by MacPherson J.A.]
AUTHOR’S NOTE: Provocation can have a brief cooling off period in the middle of the interactions as long as there is a further provocative act undertaken before force is applied by the Defendant. In this case, the Majority explains how that occurred in a bar encounter. Here a cooling off period after the first insult and acts of preparation (ie. getting a knife ready and accessible) did not prevent the defence from being available to a jury to consider. This was sufficient on the air of reality test for the jury to decide.
Introduction
[1] In the early morning hours of March 15, 2014, the appellant, Anthony Alas, fatally stabbed Masud Khalif outside a bar in Scarborough. After a three-week trial, a jury convicted the appellant of second degree murder. He was sentenced to life with no parole ineligibility for eleven years.
[3] For the reasons that follow, I would allow the appeal on the first ground. Contrary to the submissions of both counsel at trial, there was an air of reality to the defence of provocation in this case. With respect, the defence should have been left with the jury for their consideration. On this basis, I would order a new trial.
Factual Overview
[5] Just before midnight on March 14, 2014, the appellant and his fiancée, Catherine Déscoteaux, went to a bar to socialize and play billiards. Ms. Déscoteaux was drinking alcohol, but the appellant was not.
[6] The appellant did not know the deceased or Mr. Bonnell. Ms. Isaacs, on the other hand, had encountered the deceased before, on two or three brief occasions at the bar. Ms. Blackwell, the bartender, had also encountered the deceased before.
[7] The events that form the subject of this appeal arose from a series of interactions between the deceased and Ms. Isaacs.
[8] Ms. Isaacs testified that she first interacted with the deceased when he arrived at the bar that night. As the deceased passed Ms. Isaacs, he tapped her on the head with his hand. Ms. Isaacs testified that the deceased said she should be wearing a Toronto hat, not a Chicago Bulls hat. According to Ms. Isaacs, the deceased then took the hat off Ms. Isaac’s head and held it high, out of her reach, for about five to ten minutes. She eventually got her hat back and walked away.
[9] When describing this incident during her examination-in-chief, Ms. Isaacs said that the deceased was a bully, “like mean a bit but like, not, like too aggressive.” Observers described this interaction as “playful;” they were just “joking around.”
[10] Afterwards, Ms. Isaacs went outside for a cigarette. The deceased was also outside. According to Ms. Isaacs, as she tried to re-enter the bar, the deceased grabbed the hood of her sweatshirt and pulled her backwards, towards him. At the same time, he used his foot to push the door shut. According to Ms. Isaacs, when she tried to enter the bar for a second time, the deceased closed the door again, this time catching her head between the door and the frame.
[11] When Ms. Isaacs finally got back into the bar, she was upset and crying. She complained to her mother and the bartender about the deceased’s actions. She also informed the manager of the bar.
[12] Ms. Isaacs also told Ms. Déscoteaux what happened. The appellant overheard. Both Ms. Isaacs and Ms. Déscoteaux testified that the appellant became angry when he heard about the deceased’s behaviour toward s Ms. Isaacs. In his police statement, the appellant said that he was “shaking” and “really wanted to do something to him badly.” He further explained to police:
Yeah. Because like me, like I have grown up with my dad beating up my mom my whole life…So I’m not the person that’s like that and I don’t like girls getting mistreated in front of me either, right… So I, I always got to stick up for them. I always got to say something, because like I said, I don’t – I don’t like girls getting mistreated in front of me, because of my dad like my whole life, right.
[15] Ms. Isaacs and Ms. Déscoteaux recalled the appellant saying that he wanted to hit the deceased in the head with a pool cue. The appellant explained to police that he wanted to use a pool cue because he “felt like [he] couldn’t take on a guy like that,” noting:
…Like the guy was big. That’s why I told the mom, like just let me whack him with the pool stick because that was – because honestly I have been sick for ten years. I’m not like at my full strength. I couldn’t take on a guy like that…
[16] At the time, the appellant was about 5”6. He suffered from longstanding health issues relating to his diagnoses of Type 1 diabetes and gastroparesis. The deceased was a large man, standing at approximately 6”2 and weighi ng 230 pounds. He was described as stocky and muscular.
[19] While the women were outside, the appellant saw the deceased and Mr. Bonnell preparing to leave. The appellant quickly retrieved his jacket and went outside. On his way out of the bar, the deceased stopped to talk to someone; his friend, Mr. Bonnell, left and headed towards his parked car.
[20] The deceased exited the bar shortly after the appellant. The appellant told police that the deceased stopped right beside the appellant and started staring at Ms. Isaacs “all hard core.”
[21] A verbal confrontation ensued between the deceased and the women. Ms. Déscoteaux testified that the deceased started yelling at them. According to Ms. Isaacs, Ms. Déscoteaux was angry and told him to “leave us alone and to shut the hell up.” She recalled him refusing to leave and swearing at them, calling Ms. Isaacs and Ms. Déscoteaux “fucking bitches.” Ms. Déscoteaux called the deceased a “rude, ignorant prick.” By all accounts, the appellant stood there silently at this point.
[22] Ms. Blackwell, the bartender, tried to join the group outside, but the deceased held the door closed and prevented her from coming out. The appellant and Ms. Isaacs forced the door open so Ms. Blackwell could join them outside. The appellant told police that he then confronted the deceased for the first time, saying: “What the fuck is wrong with you? Do you have a problem?”
[23] Ms. Déscoteaux and the deceased continued to argue and swear at one another. Ms. Déscoteaux testified that she confronted the deceased about his behaviour towards Ms. Isaacs. She recalled saying: “Did your mom not teach you manners, you’re not supposed to hit a woman.” According to Ms. Déscoteaux, the deceased responded by saying: “I didn’t hit her, I tripped her.”
[25] As the verbal confrontation between the deceased and the women continued, the appellant transferred a knife from his pants pocket to his jacket pocket. It was the appellant’s common practice to carry a knife for his protection. He told police that he did so because he had been sick for ten years. He explained that he made the knife more accessible in this moment because the deceased was much bigger and stronger than him.
[26] There are conflicting accounts regarding what precipitated the physical confrontation that happened next. From his vantage point across the parking lot,
[27] Mr. Bonnell saw the appellant, Ms. Déscoteaux, and Ms. Isaacs approach the deceased and surround him. The appellant told the police that he saw the deceased form a fist, as if he was about to strike one of the women who stood in front of him. Ms. Déscoteaux said that the deceased lunged at her. Ms. Isaacs said that the deceased was swinging his right arm in a punching motion.
[28] The appellant told police that he reacted by jumping in and quickly stabbing the deceased. He said that he did not intend to stab the deceased’s throat; he was aiming for his chest.
[29] Ms. Déscoteaux jumped on the deceased’s back and began choking him. She testified that she was concerned about the appellant, given his small stature and health conditions. She agreed with defence counsel that she and the appellant “were working together to defend [themselves]” and that it was one of the scariest moments in her life.
[30] Ms. Déscoteaux testified that she pulled her arm back when she saw blood. She initially thought the deceased had broken his nose until she saw him clutching his neck. When the appellant realized what he had done, he fled the scene. Ms. Déscoteaux and Ms. Isaacs followed suit.
[31] The deceased died from a stab wound to the neck. He also had wounds on his right thigh, head, left forearm, right hand, and chest. The Crown alleged that the appellant stabbed him six times.
[32] Police arrested the appellant less than 48 hours later, on March 16, 2014. Both the appellant and Ms. Déscoteaux gave video statements to the police on the night of the arrest.
Trial Proceedings
[35] At the pre-charge conference, defence counsel took the position that provocation wasn’t available, highlighting the “cooling off” period between when the appellant learned of the first attack on Ms. Isaacs and the time when the stabbing occurred:
It’s my position that provocation isn’t available…Is not, is not because there’s no air of reality and just…there appears to be a cooling down period [after the incident in the bar]. On that alone, I think it’s insufficient to proceed because he’s aware of a potential assault or a violent altercation and has a cooling off period such that it doesn’t reach the on the (indiscernible) component which is necessary to establish provocation such that it shocks the mind allowing the mens rea to be vitiated.
[36] I would pause here to note that this is an incorrect articulation of the law of provocation. The provocation defence does not vitiate the mens rea for murder: R. v. Humaid, (2006) 2006 CanLII 12287 (ON CA), 208 C.C.C. (3d) 43 (Ont. C.A.), at para. 63, leave to appeal refused [2006] S.C.C.A. No. 232. Instead, the defence partially excuses an offender’s conduct out of a compassion to human frailty: R. v. Tran, 2010 SCC 58, [2010] 3 SCR 350 at paras. 21-22.
[37] Defence counsel then went on to concede that there was no air of reality to the defence of provocation. Counsel argued that the appellant was not acting on the sudden in the sense that he armed himself in anticipation that something might happen when he stood outside with the women:Additionally and even more in support of removing provocation would be Mr. Alas’ own statement in it he declares I’m standing outside and something to the effect of, I move the knife from my pocket of my pyjamas up to the pocket in my hood in preparation or as a prepared measure in case something were to happen. To me, again, that demonstrates a mind consciously aware of something that may occur such that it’s not such a shock. Again, it doesn’t really put him on the sudden – under the necessary legal test.
[38] Crown counsel agreed with this submission, noting that: “[I]t’s the position of the Crown that provocation is not available for reasons similar to [defence counsel].” The Crown also focussed on the cooling off period inside. It was the Crown’s position that the sequence of events could be separated into “distinct actions” on the part of the appellant and therefore, he did not have an “unprepared mind” when he was outside with the woman and the deceased….
[39] Based on the submissions of counsel, the trial judge ruled that he would not leave the defence of provocation with the jury.
Analysis – Air of Reality
[41] At the outset, I will briefly summarize the test that applies at this stage of the trial proceedings. All defences that arise on the facts must be left to the jury, regardless of whether they have been raised by an accused: R. v. Cinous, 2002 SCC 29 (CanLII), [2002] 2 S.C.R. 3, at para. 51; R. v. Parnell, (1983) 1983 CanLII 3602 (ON CA), 9 C.C.C. (3d) 353 (Ont. C.A.), at para. 33, leave to appeal refused [1984] S.C.C.A. No. 333. Likewise, trial judges have a duty to keep defences that do not meet the air of reality threshold from the jury, even if the defence in question is the only path to the accused’s acquittal: R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at paras. 21-27.
[42] The air of reality test asks whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit: Cinous, at para. 49. Stated otherwise, the trial judge may engage in a limited weighing of the evidence to determine if a jury acting reasonably could draw the inferences necessary to have a reasonable doubt as to whether the accused is guilty of murder, on the basis of the defence of provocation: R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at para. 21.
[43] The burden on the accused is evidential, not persuasive: Cinous, at para. 52. The question before the trial judge is not whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day: Cinous, at para. 54. That question is reserved for the jury. The air of reality test is only concerned with whether a given defence is put in play by the totality of the evidence, accepting the case of the accused at its highest and assuming the evidence relied upon is true: Cinous, at para. 53.
The Defence of Provocation
[45] The defence of provocation recognizes that, “as a result of human frailties, the accused reacted inappropriately and disproportionately, but understandably to a sufficiently serious wrongful act or insult”: Tran, at para. 22. At the time of the offence, ss. 232(1) and (2) of the Criminal Code, R.S.C., 1985, c. C-46 governed the defence of provocation and read as follows:[1]
Murder reduced to Manslaughter
232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
What is provocation
(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.
[47] The Supreme Court outlined the four components of the provocation defence in Tran, at paras. 25 and 36: (1) there must be a wrongful act or insult; (2) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control; (3) the accused must have acted in response to the provocation; and (4) the accused must have acted on the sudden before there was time for their passion to cool. The first two components constitute the “two-fold” objective element of the defence: Tran, at para. 25. The latter two components comprise the “two-fold” subjective element of the defence: Tran, at para. 36.
The Objective Components
[48] The ordinary person standard with respect to the first two elements serves a restraining function, ensuring that only losses of self-control that comport “with contemporary society’s norms and values will attract the law’s compassion”: Tran, at para. 30.
[49] The court takes a flexible and contextual approach to the ordinary person in the context of provocation. As the Supreme Court held in R. v. Thibert, 1996 CanLII 249 (SCC), [1996] 1 S.C.R. 37, at para. 14:
…the ordinary person must be taken to be of the same age, and sex, and must share with the accused such other factors as would give the act or insult in question a special significance. In other words, all the relevant background circumstances should be considered.All contextual factors that would give the act or insult special significance to an ordinary person must be taken into account: Thibert, at para. 18.
[50] For example, in R. v. Land, 2019 ONCA 39, 145 O.R. (3d) 29, at paras. 95-97, Paciocco J.A. held that the accused’s experiences as a sexual abuse survivor had a bearing on the ordinary person test. The confrontation in that case arose out of the deceased’s alleged sexually abusive conduct towards a young girl…. As Paciocco J.A. explained in Land, at para. 97: “The question is how an ordinary person with Mr. Land’s life experiences with sexual abuse would be apt to respond.”
[52] With respect to the first inquiry under the objective component – whether there was a wrongful act or insult – there was evidence upon which a properly instructed jury acting reasonably could conclude that the deceased was about to strike one of the women outside the bar. Again, the appellant said the deceased formed a fist and brought his arm up like he was going to strike one of the women; Ms. Déscoteaux indicated that the deceased lunged at her; and Ms. Isaacs recalled the deceased raising his arm in a punching motion.
[53] As for the second inquiry under the objective component, the court must consider whether the wrongful act or insult was sufficient to deprive an ordinary person of the power of self-control. The “suddenness” of the provocative act is germane to this question: Land, at para. 57. As Paciocco J.A. reasoned in Land, at para. 57: “[I]f a wrongful act or insult is not sudden and unexpected, it is unlikely to satisfy the objective requirement that ‘the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control.’”
[54] The question is how an ordinary person with the appellant’s life experiences would be apt to respond: Land, at para. 97. The appellant is someone with a relatively small stature, health conditions, and a history of bearing witness to violence against women. The ordinary person in this context would be apprised of the deceased’s previous assault on Ms. Isaacs, and the precipitous conduct of the deceased, a large man who towered over the appellant, Ms. Isaacs, and Ms. Déscoteaux.
[55] Understood in that context, there is an air of reality to the prospect that an ordinary person in the appellant’s shoes could lose self-control when faced with a credible threat that the deceased would again assault one of his female companions. Moreover, in this moment of apparent escalation, an ordinary person may resort to a disproportionate response, particularly in light of the size differential between himself and the person acting in a threatening manner.
Substantive Components
[56] Turning to the subjective components of the test, the court must ask: (1) whether the accused acted in response to the provocation; and (2) whether the accused’s actions were “on the sudden before there was time for [their] passion to cool”: Tran, at para. 36.
[57] I am persuaded that there was an air of reality to the notion that the appellant acted in response to the provocation. The stabbing followed immediately on the heels of the deceased making a threatening gesture towards the women. It was at this juncture that the appellant reacted. Before this point, he demonstrated restraint.
[58] The more contentious question on this appeal is the second inquiry under the subjective component: whether the appellant acted “on the sudden before there was time for his passion to cool”: Tran, at para. 36. Again, all parties at the proceedings below, including the trial judge, were of the view that no properly instructed jury could reasonably conclude that: (a) the unlawful act was sudden and unexpected; and (b) the appellant’s actions occurred on the sudden before he had time to regain self-control.
[59] On appeal, the respondent argues that the evidence does not satisfy the suddenness requirement. The respondent first points to the cooling off period between the initial assault on Ms. Isaacs and the later interaction outside. However, I am not persuaded that the “cooling off period” forecloses the reliance on the defence of provocation in this case. In my view, there were two incidents that constituted potential provocative acts. The first was the assault on Ms. Isaacs; the second was the deceased’s threatening gesture outside. There was no cooling off period between the threatening gesture outside and the stabbing. Indeed, taking the evidence at its highest, the stabbing was an immediate response to the deceased lunging, swinging, or forming a fist in the direction of his female companions. Put another way, he acted “on the sudden” to the physical threat in front of him before there was time for his passion to cool.
[60] The respondent also argues that the appellant did not have an unprepared mind because he engaged in a deliberate thought process in preparation for an altercation outside, and the nature of this altercation was entirely predictable. In support of this second argument, the respondent points to the fact that the appellant joined his female companions outside when he knew the deceased was on his way out; he did so while armed with a knife; he did not shy away from the confrontation; during said confrontation, he braced his knife “just in case”; and he admitted that he meant to stab the deceased in the chest, not his throat. The respondent also seems to imply that these acts of planning or preparation show that the appellant played an instigating role in the confrontation, and therefore subjectively expected the deceased’s response.
[61] With respect, it remained open for the jury to conclude otherwise on this record. Another plausible read of the facts is that the appellant feared a confrontation with the deceased and went outside to stand with his female companions as a safety precaution. It seems to me that a violent altercation was not a foregone conclusion, and neither was his own participation in what ultimately unfolded. The deceased and his friend were leaving the bar; they could have left without incident but for the verbal confrontation that ensued between the deceased and Ms. Déscoteaux. And again, by all accounts, the appellant did not start the verbal confrontation, nor did he resort to violence until the deceased made a threatening gesture. It is difficult to see how he acted as an instigator, and I am not convinced that the appellant was wholly prepared for the threatening act of the deceased. In any event, the fact that a violent altercation may have been predictable is certainly relevant, but not necessarily determinative: Cairney, at paras. 44-46; Land, at para. 62.
[62] Nor do I see the appellant’s anticipation of a conflict and possession of a knife as fatal to this stage of the air of reality test. The defence of provocation is not necessarily defeated in situations where the accused arms himself with a knife in preparation for an encounter he could anticipate. In R. v. Gill, 2009 ONCA 124, 246 O.A.C. 390, a decision cited with approval in R. v. Buzizi, 2013 SCC 27, [2013] 2 S.C.R. 248, this court found that there was an air of reality to the defence of provocation notwithstanding the fact that the accused retreated from a confrontation, retrieved a knife, and then returned to the confrontation.
[63] The majority of the Supreme Court in Cairney emphasized that where there are doubts about the evidential foundation for the defence, judges “should resolve any doubts as to whether the air of reality threshold is met in favour of leaving the defence to the jury”: Cairney, at paras. 22, 46. On this aspect of the test, there may be some doubt, but that doubt must be resolved in the favour of the accused.
Conclusion on the Defence of Provocation
[64] In my view, the defence of provocation had an air of reality. It was for the jury to decide whether the deceased’s wrongful act was sufficient to deprive an ordinary person of the power of self-control and whether the appellant was, in fact, so deprived and acted suddenly, in the heat of passion.
[65] I would allow this ground of appeal.
CONCLUSION AND DISPOSITION
[66] I would allow the appeal on the first ground alone and order a new trial.
R v Dindyal, 2021 ONCA 234
[April 14, 2021] Motive to Fabricate and Credibility [Reasons by Nordheimer J.A. with David Watt and Alexandra Hoy JJ.A. concurring]
AUTHOR’S NOTE: There is a significant difference between no motive to fabricate and a lack of evidence of a motive to fabricate. One can be considered, the other is not relevant. Just because a trial judge cannot see a reason for the complainant in a matter to fabricate, does not mean they should believe their evidence. Where their reasons reveal this occurred, a new trial will occur.
Background
[2] All of the counts arise out of a troubled relationship that the appellant had with the complainant. 1 The two were in a relationship for a period of time.
[3] The appellant, aged 21, met the complainant, aged 34, while working for a retail store in Brampton. The appellant was a sales associate, and the complainant was his boss. They began dating on February 14, 2015 and the appellant eventually moved in with the complainant.
[4] The relationship was marked by numerous arguments between the two. Drinking was also part of the troubled relationship. A further complicating factor in the relationship was that the complainant became pregnant and had an abortion in January 2016. The appellant said that this was often the source of dispute between the two as the complainant blamed him for having the abortion. They conceived again but the pregnancies ended in miscarriages.
[5] The appellant moved into the complainant’s home in June 2016 and resided with her, and her son from a previous relationship, until September 2017. The appellant then left the home. Sometime later, the complainant went to the police and gave a statement which led to the charges I mentioned at the outset.
The Trial Judge’s Decision
[17] The trial judge began his decision by reviewing the evidence. He then recited certain principles of law including the presumption of innocence, the burden of proof, assessing the credibility of witnesses, and the application of the test from R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. The trial judge then reviewed the elements of each of the offences charged.
[18] Thereafter, the trial judge reviewed the evidence of the appellant. He rejected his evidence in total. He said that he found the appellant’s evidence “a contrived and calculated performance”. The trial judge went on to say that the appellant’s evidence “was not internally consistent, and not externally consistent with the other evidence that [he did] accept.”
[19] The trial judge proceeded to deal with the complainant’s evidence. He said that he found the complainant to be credible and that “[s]he gave her evidence in a straightforward manner without undue embellishment”. The trial judge added: “Moreover, as submitted by the Crown, she has no reason to lie, to fabricate or to embellish the accusations against [the appellant].”
[20] The trial judge then went through each of the 11 counts. With the sole exception of counts 5 and 11, the trial judge said, separately for each of the counts and in virtually the same language, that he did not believe the appellant and he was not left in a reasonable doubt by his evidence.
Analysis
[21] It is not necessary to address each of the complaints made by the appellant with respect to the trial judge’s reasons and analysis. Rather, I begin with the error that infected the trial judge’s approach to all of the counts and that is his credibility finding with respect to the complainant, i.e., the no motive to fabricate conclusion.
[22] This court has explained, on a number of occasions, the permissible and impermissible use of evidence, or the absence of evidence, relating to motive. Most recently in R. v. Ignacio, 2021 ONCA 69, at paras. 37-60, leave to appeal to S.C.C. requested, 39552, Pepall J.A. reviewed the authorities on this subject. Included in those authorities is the central point made by Doherty J.A. in R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), at para. 121:
What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive or, finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth. The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility. [Emphasis added].
[23] The trial judge found that the complainant had “no reason to lie, to fabricate or to embellish the accusations against [the appellant].” But the evidence does not support that finding. The trial judge appears to have conflated the absence of evidence of a motive to fabricate with a proven lack of motive, contrary to Batte. This is a significant error. A proven lack of motive can be a compelling factor in a credibility assessment. However, the mere absence of any evidence of a motive to fabricate is only one of many factors to be considered in a credibility assessment. It alone cannot serve as the foundation of the credibility assessment.
[24] In my view, the trial judge impermissibly used the absence of any evidence of a motive to fabricate as if it had been proven that the complainant had no motive to fabricate, in coming to his credibility conclusion regarding the complainant. Rather than consider it as a factor, the trial judge clearly used it to conclude that the complainant must be telling the truth, contrary to the admonition I have just set out above.
[25] The concern that the use of the absence of motive evidence became the driving force in the trial judge’s conclusions is heightened by the generally conclusory nature of his reasons. There is no independent analysis of the evidence on each of the counts, as is required absent a count-to-count similar act application by the Crown, of which there was none in this case. There are also no individual credibility assessments. Rather, the trial judge made a blanket credibility finding and then, in considering each count, simply set out the facts for that count, and then recited the same conclusion – that he does not believe the appellant but does believe the complainant.
[26] In addition to these problems, one of the reasons that the trial judge relied on to reject the appellant’s evidence, and to say that it did not raise a reasonable doubt, was the fact that it was internally and externally inconsistent. However, the trial judge did not, at any point in his reasons, identify any of those stated internal or external inconsistencies that led him to this conclusion. Among other problems that this failure creates, is the problem that it leaves this court without any way of reviewing the reasonableness of this conclusion.
[27] This was a credibility case. It was incumbent on the trial judge to carefully analyze the evidence on each count and reach individual conclusions on them. The all or nothing approach that the trial judge took to the credibility assessments was improper. This is especially so because, on some of the counts, there was evidence, beyond that of the complainant and of the appellant, including photographs and other witnesses’ evidence, that required consideration in making any conclusions on credibility. Unfortunately, in many instances, the trial judge failed to reference this other evidence in his reasons. The one notable exception is with respect to count 11, where the trial judge did make reference to the evidence of the appellant’s brother, which he found raised a reasonable doubt.
[28] In response to these concerns, the respondent says that the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 could be applied…
[30] The errors in the credibility assessments in this case are not harmless nor are they trivial. They were central to the trial judge’s conclusions….
[31] The one exception to this point is respecting count 6. There was still a dispute on the evidence as to what had occurred but, on that count, there was external objective evidence to support the events as described by the complainant, namely, photographs of the damage done by the thrown plate and cup of coffee. While there was an argument over what the photographs actually depicted, that was a factual matter to be resolved by the trial judge. His conclusion on that factual issue is entitled to deference from this court. That conclusion alleviates, to a large extent, the concerns regarding the credibility assessment, and their impact, on that count.
[36] I would allow the appeal on counts 1, 3, 9 and 10. I would order a new trial on counts 1, 3 and 9. I would enter an acquittal on count 10. The sentences on each of those counts are set aside but the sentences on the other counts remain.
