The Defence Toolkit – September 4, 2021

This week’s top three summaries: R v Eheler, 2021 BCCA 316: #delayed reasons excluded, R v Barra, 2021 ONCA 568: s.7 late #disclosure appeal, and R v BH, 2021 ABQB 689: vitiation of #consent in 271.

R v Ehler, 2021 BCCA 316

[August 27, 2021] Delayed Reasons for Judgement on a Voir Dire Ignored on Appeal – R v Teskey [Reasons by Fitch J.A. with Harris and Griffin JJ.A. concurring]

AUTHOR’S NOTE: While there is no hard upper limit on how long reasons for judgment can take, reasons delivered long after the fact are at risk of being ignored on appeal.  In many situations this means that there will be no reasons on a significant issue in the trial and an order for a new trial will result on appeal. So far, this case appears to have recorded the longest ever delay in providing reasons: decision was rendered October 23, 2017 and the reasons were delivered on October 28, 2020 (a whopping 3 years +). So, it is doubtful that anyone will find this analogous on length of time to their own case. However, the overview of principles applicable to delayed reasons is useful. Also, a wedge with at least Alberta’s Court of Appeal has been developed as to whether it matters that the reasons relate to a voir dire and not the trial itself (see: R v Ledesma, 2021 ABCA 143 where the ABCA suggests that voir dire reasons are somehow less subject to Teskey) Perhaps this will be a good issue for the SCC to decide.

Overview

[1] The appellants, Clayton Archie Eheler (“Eheler”) and Mathew Jordan Thiessen (“Thiessen”), were convicted following a trial in the Provincial Court of British Columbia of possessing cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. A third accused, Raymond Morrissey (“Morrissey”) was acquitted. The case against the appellants turned largely on the admissibility of the fruits of a search warrant executed on an apartment. The appellants were present in the apartment when the police entered the unit to conduct the search.

[4] Second, the appellants say a three-year delay in the delivery of reasons for judgment explaining why they had been denied standing to challenge the search warrant, and the context in which those reasons were eventually prepared and delivered, collectively give rise to a reasonable apprehension that the reasons constitute an after-the-fact justification of the ruling rather than an articulation of the reasoning that actually led to the result. In the absence of the requisite link between the pronouncement of judgment and the reasons explaining the result, the appellants say the presumption of judicial integrity is displaced and that the standing ruling should not be considered on appeal. In the alternative, the appellants challenge the correctness of the standing ruling.

[6] The second issue has two prongs. The first turns on the application of the analytical framework set out in R. v. Teskey, 2007 SCC 25, and whether the factors addressed therein support a conclusion that the requisite link between the decision and the reasons eventually offered in support of it has been lost….

[8] I am, however, satisfied on the totality of the circumstances that a reasonable person would apprehend that the reasons are an after-the-fact justification for the standing ruling rather than an articulation of the reasoning that led to the decision. In the result, these appeals must be addressed on the footing that no reasons have been supplied for the ruling that denied the appellants standing to challenge the search warrant. In my view, the absence of reasons forecloses meaningful appellate review of a central ground of appeal. I would not accept the invitation of the Crown to decide, in the absence of reasons, whether there is any reasonable basis upon which standing could have been granted, or any reasonable basis upon which the warrant could have been set aside had standing been granted to the appellants. In the result, I would order a new trial.

Background

[10] A drug investigation targeting the appellants and Morrissey began in October 2014. The investigation, initiated following the receipt of informant information, focused on surveillance of the appellants and, eventually, on the activities taking place in Suite 401 of an apartment building located in Chilliwack, British Columbia.

[11] The police were given access to the apartment building by the building manager. With the building manager’s permission, investigators were able to watch CCTV footage of activities taking place within the building from a secure utility room. They were also given access to FOB records by the building manager. Combining the CCTV footage and the FOB records, the police were able to determine when the appellants and Morrissey entered and left the building, who accompanied them, what they were doing, and, generally speaking, where they went within the building.

[12] A search warrant was executed on Suite 401 on November 26, 2014. The judge found that the appellants were in the suite when the police conducted a “hard entry” to execute the warrant. Eheler jumped from the balcony of the suite to the balcony of the suite below. He was arrested there in possession of a key to Suite 401. A substantial quantity of cash and cocaine, along with items used to weigh, cut and package drugs for sale, were found in the kitchen where Thiessen was arrested. A set of keys that included a key to Suite 401 and a FOB that opened the lobby doors of the apartment building was seized from the kitchen countertop.

[13] The Crown conceded that Morrissey, who rented Suite 401, had standing to challenge the search warrant. Relying on the framework set out in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, the Crown took the position that neither appellant had standing to challenge the warrant. Further, the Crown argued that none of the accused had a reasonable expectation of privacy in the common areas of the apartment building or in the CCTV footage and FOB records associated with the building.

[14] A lengthy voir dire ensued in which the appellants sought to establish standing to challenge the search warrant, and all three accused sought to establish that they had a reasonable expectation of privacy in the common areas of the apartment building and in the CCTV footage and FOB records obtained by the police without warrant.

[16] On October 23, 2017, the judge ruled that: (1) neither appellant had an expectation of privacy in Suite 401; and (2) none of the accused had an expectation of privacy in the common areas of the apartment building or with respect to the CCTV footage and FOB records. The pronouncement of judgment on these issues was unaccompanied by reasons. The judge said that reasons would follow.

[17] Reasons for judgment on the standing ruling were not delivered until October 27, 2020, more than three years after the date upon which the ruling was pronounced (R. v. Eheler (27 October 2020), Chilliwack 62444-1 (B.C.P.C.) (the “Ruling on the Standing Voir Dire”)). When reasons for judgment were delivered, the judge was aware that appeals had been launched, and that the standing ruling and absence of reasons for that ruling were important issues on appeal.

[19] On June 18, 2018, the judge convicted the appellants for reasons indexed as 2018 BCPC 390. He relied on the fruits of the warranted search, the information obtained by the police from surveillance conducted from inside the apartment building, and the unwarranted searches of the CCTV footage and FOB records to conclude that the essential elements of the offence of constructive or joint possession—knowledge, consent and an ability to exercise some measure of control over the drugs—had been established beyond a reasonable doubt.

The Teskey Ground

(a) Background

[82] The decision on standing was pronounced on October 23, 2017, with reasons to follow.

[83] The trial judge said nothing further about the availability of the reasons in support of the standing ruling until April 12, 2018—one of the dates on which counsel made closing submissions on the trial proper. On that date, the judge acknowledged that “counsel will be wanting, with respect to the standing, a decision on — or a written decision on the standing issue, and I’m working on that.”

[84] The appellants filed their notices of appeal from conviction in December 2019 (Eheler) and January 2020 (Thiessen). The appellants alleged that the trial judge erred by denying them standing to challenge the search warrant.

[86] The new evidence establishes that on September 10, 2020, the Crown wrote to the Office of the Chief Judge of the Provincial Court of British Columbia advising that the correctness of the judge’s standing ruling was at issue on appeal, but that no reasons for judgment had been given. The Crown sought assistance in obtaining the reasons or redirecting the inquiry as appropriate.

[87] By letter dated September 16, 2020, the Crown was informed by a Legal Officer of the Court that the trial judge had confirmed that “no written reasons are on file for this ruling.” The Crown was subsequently advised that further requests for information should be directed to the Court Registry where the trial took place.

[88] On October 8, 2020, Eheler was released on bail pending appeal. In reasons for judgment indexed as 2020 BCCA 280 (Chambers), a justice of this Court found that the strength of the ground of appeal flowing from the absence of reasons for the standing ruling weighed heavily in favour of reviewability and a release order pending the determination of the appeal. It was common ground on appeal that the judgment admitting Eheler to bail pending appeal, which was posted on the Court’s website, garnered some media attention. To be clear, our colleague’s assessment of the strength of the appeal on the application for bail has played no role in the disposition I am proposing. I mention these events because they are relied on by the appellants as part of the context that ought to inform resolution of whether a reasonable person would consider that the necessary link between the result and the reasons offered in support of it has been broken.

[89] By letter dated October 14, 2020, the Crown wrote to the manager of the Chilliwack Court Registry advising that the appellants were appealing their convictions and alleging that the trial judge erred in denying their standing application. The Crown further advised that the appellants were raising the failure of the trial judge to provide reasons for the standing ruling as a new ground of appeal. The Crown asked whether reasons for the standing ruling existed and, if not, whether reasons would be provided before the hearing of the appeals.

[90] On October 28, 2020, the judge’s written reasons for judgment on the standing ruling were provided to counsel.

[91] The reasons for judgment include an explanation for the delay and a summary of the steps taken by the judge to prepare the reasons so long after the fact:

[7] On October 23, 2017 I ruled that Mr. Morrissey had a reasonable expectation of privacy in Unit 401 as conceded by the Crown; Mr. Eheler and Mr. Thiessen had not established a reasonable expectation of privacy in relation to Unit 401; and none of the accused had established a reasonable expectation of privacy to the common areas of the … building including the parkade or in the CCTV footage and FOB activity records. On that date, I indicated that reasons for my decision would follow. It has come to my attention that I have not provided those reasons. To all concerned, I apologize for my oversight.

…

[10] In preparing these reasons, I have reviewed the written submissions of counsel, transcripts of the oral submissions of counsel, transcripts of the evidence on the voir dire and the applicable authorities put before me during the course of submissions.

(b) The Teskey Framework

[92] Application of the framework developed in Teskey guides the resolution of the first prong of the appellants’ second ground of appeal. The essentials of that framework, and the unusual context in which it was applied in Teskey, were summarized in R. v. Sundman, 2021 BCCA 53 (appeal as of right to the S.C.C., [2021] S.C.C.A. No. 49):

[74]      In Teskey, the Court provided an analytical framework for determining the circumstances in which delay in the delivery of written reasons for judgment may be found to rebut the presumption of integrity that those reasons accurately reflect the basis upon which the result was reached. Where the delay breaks the necessary link between the result and the reasoning that led to it, the reasons provide no opportunity for meaningful appellate review and should not be considered. As the mere pronouncement of judgment will not pass the sufficiency of reasons test set out in Sheppard [2002 SCC 26], a new trial will be required in these circumstances. The framework to be applied was set out by Justice Charron, writing for the majority (at paras. 18–21):

18        Reasons rendered long after a verdict, particularly where it is apparent that they were entirely crafted after the announcement of the verdict, may cause a reasonable person to apprehend that the trial judge may not have reviewed and considered the evidence with an open mind as he or she is duty‑bound to do but, rather, that the judge has engaged in result‑driven reasoning. In other words, having already announced the verdict, particularly a verdict of guilt, a question arises whether the post‑decision review and analysis of the evidence was done, even subconsciously, with the view of defending the verdict rather than arriving at it. It is most important in a criminal case to guard against any result‑driven consideration of the evidence because the accused is presumed innocent and entitled to the benefit of any reasonable doubt. A reasonable doubt is not always obvious. Its presence may be far more subtle and only discernible through the eyes of the person who keeps an open mind. It is in this sense that the trial judge who appears to have already committed to a verdict of guilt before completing the necessary analysis of the evidence may cause a reasonable person to apprehend that he or she has not kept an open mind. Further, if an appeal from the verdict has been launched, as here, and the reasons deal with certain issues raised on appeal, this may create the appearance that the trial judge is advocating a particular result rather than articulating the reasons that led him or her to the decision.

19        I am not suggesting that the necessary link between the verdict and the reasons that led to it will be broken whenever there is a delay in rendering reasons after the announcement of the verdict. Trial judges benefit from a presumption of integrity, which in turn encompasses the notion of impartiality. … Hence, the reasons proffered by the trial judge in support of his decision are presumed to reflect the reasoning that led him to his decision.

20        …

The judge’s impartiality is essential to achieve trial fairness.

21        As reiterated in S. (R.D.) [1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484], fairness and impartiality must not only be subjectively present but must also be objectively demonstrated to the informed and reasonable observer. Even though there is a presumption that judges will carry out the duties they have sworn to uphold, the presumption can be displaced. The onus is therefore on the appellant to present cogent evidence showing that, in all the circumstances, a reasonable person would apprehend that the reasons constitute an after‑the‑fact justification of the verdict rather than an articulation of the reasoning that led to it.

[75]      Teskey was an unusual case. The evidence was complex, entirely circumstantial, and contained contradictions on the crucial issue of identity. The delay between the announcement of the verdicts and the issuance of reasons for judgment was 11 months. As noted by Charron J., among the factors that combined to rebut the presumption of integrity were that the judge: acknowledged having difficulty reaching a verdict in the months following the completion of the evidence; expressed a willingness to reconsider the verdicts immediately after they were pronounced, leaving an impression that the deliberative process was ongoing; delivered written reasons for judgment after the notice of appeal had been filed and addressed in the reasons issues relating to the grounds of appeal; and, referred in the reasons to events that occurred after the pronouncement of the verdicts. All of these factors contributed to an apprehension that the written reasons reflected after‑the‑fact justification for the verdicts rather than an articulation of the reasoning that led to those verdicts. In ordering a new trial, Charron J. was clear, however, that if delay in the delivery of post‑verdict reasons was the only factor at play, appellate intervention would not have been shown to be justified.

[93] The principles set out in Teskey were also applied in R. v. Port Chevrolet Oldsmobile Ltd., 2009 BCCA 357 at para. 58, and R. v. Cunningham, 2011 ONCA 543.

[94] Teskey makes clear that “[t]he onus is … on the appellant to present cogent evidence showing that, in all the circumstances, a reasonable person would apprehend that the reasons constitute an after‑the‑fact justification of the verdict rather than an articulation of the reasoning that led to it”: at para. 21. As Justice Doherty noted in Cunningham, because the inquiry takes account of the perceptions of a reasonable observer, it will generally not be necessary for a reviewing court to engage in the “impossible task” of deciding whether reasons for judgment actually reflect the reasoning path of the judge that led to the result: at para. 35.

[95] At issue in Teskey was delay in the release of reasons for judgment for the verdict. Here, the delay concerns the release of reasons for judgment on a pivotal pre‑trial ruling. I see no reason to distinguish between these two situations and, in my view, the Teskey framework applies to both. This is consistent with the view taken in Cunningham (at para. 53) and with the approach implicitly taken by this Court in Port Chevrolet Oldsmobile Ltd. (at paras. 60–61). [Emphasis by PM]

[96] There is no closed list of factors that guide a Teskey analysis. The inquiry is case specific: Cunningham at para. 15.

[97] The majority in Teskey considered the collective impact of the following factors in determining that the presumption of integrity had been rebutted in that case: the pronouncement of judgment was a bare one, unaccompanied by any explanation of the underlying reasoning; the length of the delay between the pronouncement of judgment and the release of reasons; evidence that the reasons were prepared long after judgment had been pronounced; the judge’s difficulty in reaching a decision and obvious uncertainty about the correctness of the result; the complex and circumstantial nature of the evidence and the factual findings that had to be made before the decision was reached; the reasons were delivered after the appeal had been launched; whether the reasons appear to have been crafted to answer points in the appeal; and the failure of the judge to respond to repeated requests from counsel to give reasons. The majority was clear in Teskey that the delay in issuing reasons, standing alone, would not have been sufficient to rebut the presumption of judicial integrity: at para. 23.

(d) Analysis

[105] Second, the analysis required under this ground of appeal focuses on whether the totality of circumstances would cause a reasonable person to apprehend that the rationale underlying the result was formed after the decision was pronounced, and that the reasons are, even subconsciously, the product of a judicial mind committed to justifying that result. These concerns will be heightened when the passage of time between the pronouncement of judgment and the delivery of reasons is substantial, and the judge is aware that an appeal has been launched when reasons are issued: see Teskey at para. 18. To be clear, neither appellant suggests that the judge consciously engaged in any sort of ex post facto justification of the result or put himself in the appellate arena by constructing reasons to ward off a potential ground of appeal. In short, the concern is with the appearance of justice and the appellants have framed this ground of appeal accordingly.

[107] First, the bare pronouncement of the result on October 23, 2017, does not permit insight into the judge’s associated reasoning.

[108] Second, while recognizing that it is not determinative on its own, the length of time between the pronouncement of judgment and the delivery of reasons in this case weighs heavily in the analysis. The requisite link between the result and the reasons for the result becomes more tenuous with the passage of time: Cunningham at para. 37. …

[109] Third, I infer from all the circumstances that the reasons on standing were prepared after the pronouncement of the decision. There is very little to support the notion that the reasons had been prepared before the appeals were launched. Indeed, the weight of the evidence is to the contrary. For example, the reasons refer to the acquittal of Morrissey—an event that obviously post‑dates the pronouncement of judgment on the standing application. More importantly, the judge was explicit in his October 2020 reasons in support of the standing ruling about the steps he was required to take “[i]n preparing [the] reasons.”

[110] Fourth, the context in which the reasons were delivered strongly suggests that the requisite link between the decision and the reasons that led to it is not present in this case. The workload managed by provincial court judges makes it difficult to imagine that any judge could remember the reasoning that led to a result pronounced three years earlier. The judge did not suggest otherwise. Rather, he candidly acknowledged that he was obliged to reread the submissions and the record of the proceedings to prepare his reasons.

[111] Fifth, the trial judge’s knowledge that the appellants had appealed the standing ruling and were alleging that a new trial should be ordered in light of his failure to provide reasons explaining the result is also an important factor in determining whether a reasonable observer would see the necessary link between the decision and the reasons: Teskey at para. 18; Cunningham at para. 45. The release of reasons long after the pronouncement of judgment while an appeal addressing the correctness of those reasons is pending may give rise to a reasonable apprehension that the judge is, at least subconsciously, advocating a particular result rather than articulating the reasons that led him or her to the decision: Teskey at para. 18; Cunningham at paras. 47–48. The new evidence establishes that before the reasons were composed the judge had become aware that the standing ruling and the absence of reasons in support of it were live issues on appeal.

[114] In my view, these factors, when taken together, rebut the presumption that the reasons truly reflected the reasoning process that led to the judge’s decision to deny the appellants standing to challenge the admissibility of evidence obtained in the warranted search of Suite 401. In the result, I would disregard the reasons offered in support of the standing ruling. In the absence of reasons, there is no meaningful opportunity for appellate review of the correctness of that ruling.

[118] For the foregoing reasons, I would admit the new evidence tendered by the appellants, allow the appeals, quash the convictions and order a new trial.

R v Barra, 2021 ONCA 568

[August 18, 2021] Charter s.7 Disclosure – Delayed Disclosure Treatment on Appeal – Mistrial Application [Fairburn A.C.J.O., David Watt J.A., B. Zarnett J.A.]

AUTHOR’S NOTE: Whatever the cause may be, it often happens that prosecutions of large complex matters involve defence being handed significant amounts of disclosure shortly before, during, or even after portions of the trial. This is perhaps one of the most difficult things for defence lawyers to deal with as the factual goalposts of the proceeding are not only shifting in the courtroom with witness testimony, but also outside of the courtroom with volumes of disclosure being dropped on the defence at the last minute. Often, this includes the most important disclosure in a case as Crown counsel scramble to shore up their case and note that they have not disclosed these materials before through oversight, lack of thorough preparation, or simply bureaucratic inefficiencies. The question then for the defence is what to do, push through or call for a mistrial? That is often a game time decision based on how things are going, but it is rarely a bad idea to put significant problems on the record. Judges are often loath to give a mistrial, but events unfold in unpredictable ways and then it is always good on appeal to be able to point to an attempt by the defence to fix the problem.

Here, the ONCA noted a strangely cosy relationship between the prosecutor and the chief disreputable witness for the Crown. The subject of late disclosure were loads of direct communications between the two through emails and the contents of a meeting where promises were made to the severed co-accused that his statement would not be used in his own prosecution. All these things would have been particularly useful to the defence before the close of the Crown’s case and their election to testify. 

Overview

[1] Robert Thomas Barra and Shailesh Hansraj Govindia, the appellants, were convicted of agreeing to bribe a foreign public official, the Indian Minister of Civil Aviation, contrary to s. 3(1) of the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34 (“CFPOA”). They were each sentenced to 2.5 years in custody.

[2] Together, the appellants advance six grounds of appeal from conviction: …

(ii) that the trial judge erred in failing to declare a mistrial in the wake of late Crown disclosure;

[5] In our view, this appeal must be allowed on the basis of the erroneous approach taken to the mistrial application. Accordingly, there is no need to address every issue raised on appeal. Rather, our decision only touches upon those issues that are necessary to the resolution of the appeal and that assist in providing guidance to the court rehearing this matter.

General Background

[8] Cryptometrics Inc. (“Cryptometrics U.S.”) was a Delaware company specializing in biometric technology. Cryptometrics Canada Inc. (“Cryptometrics Canada”) was its Canadian subsidiary, focusing upon the development and rollout of a facial recognition software. In September 2005, Cryptometrics Canada began working on a bid to sell its technology to Air India. Air India is said to be a corporation that is owned directly by the Indian government.

[9] Mr. Barra was a co-Chief Executive Officer (“CEO”) of Cryptometrics U.S. The trial judge found as a fact that he was the “controlling mind” of both Cryptometrics U.S. and Cryptometrics Canada.

[10] Mr. Govindia was the CEO of a company named Emerging Markets Groups Holdings Ltd. (“EMG”).

[11] The Crown alleged that the appellants and other individuals conspired together in a bribery scheme to allow Cryptometrics Canada to obtain a contract with Air India.

[12] The alleged bribery was said to have taken place in two stages over a period of three years, with one constant purpose in mind: to bribe Air India and Indian officials to obtain the contract.

[13] Phase One allegedly involved a plan by Mr. Barra and other individuals to pay certain bribes. The other individuals included: Dario Berini, the Chief Operating Officer of Cryptometrics U.S. and Cryptometrics Canada; Robert Bell, an employee of Cryptometrics Canada who reported directly to Mr. Berini … As will become clear in these reasons, Mr. Berini was a critical Crown witness at trial. The late Crown disclosure was tied directly to communications between Mr. Berini and the senior Crown counsel. We will come back to this disclosure issue at para. 82.

[14] During Phase One, Mr. Barra, Mr. Berini, Mr. Bell, and Mr. Karigar were alleged to have conspired to bribe Indian foreign officials as follows: they allegedly agreed to pay $200,000 to Air India employees who were in charge of the bidding process for the contract; and they allegedly agreed to pay $250,000 to Praful Patel, the Indian Minister of Civil Aviation, in order to obtain the contract with Air India. Phase Two allegedly involved a further plan by Mr. Barra, Mr. Berini, and Mr. Govindia to pay Mr. Patel a $500,000 bribe to further ensure the award of the Air India contract. In Phase Two, Mr. Govindia replaced Mr. Karigar as a member of the conspiracy.

[16] However, the $250,000 bribe was another story. The trial judge concluded beyond a reasonable doubt that Mr. Barra not only knew that this amount was being paid to Mr. Patel, but he also knew that Mr. Patel was in fact a foreign public official and that the money was being used as a bribe to obtain the contract with Air India.

[18] Mr. Govindia testified at trial. He acknowledged that he was present for the discussions undergirding Phase Two, discussions that took place in New York City on November 2, 2007. Even so, he maintained at trial that his agreement to participate in the bribe, which was caught on audiotape, was a façade and that he never intended to actually pay the bribe. Rather, Mr. Govindia testified at trial that he “agreed” only so that he would be more likely to obtain the consulting contract that was on the table, having no intention of actually paying a bribe in the end. While Mr. Govindia acknowledged that it was a serious error of professional judgment on his part to have pretended to be willing to bribe Mr. Patel, he said that he cleared things up with Mr. Barra the morning following the recorded meeting, saying that he would not be involved in this type of conduct.

[19] The trial judge rejected Mr. Govindia’s evidence, concluding instead that he and Mr. Barra reached an actual agreement to pay the $500,000 bribe to Mr. Patel to obtain his approval of the Air India contract. As we will later explain, in reaching that conclusion, the trial judge relied in part on Mr. Berini’s evidence, including aspects of his evidence that were touched by the Crown’s late disclosure.

F. MISTRIAL APPLICATION

[82] This ground of appeal takes issue with a ruling by the trial judge made at the conclusion of the defence case.

[83] Crown counsel proposed to adduce reply evidence from their principal witness, Mr. Berini, about the authenticity of the document allegedly bearing his signature, introduced by counsel for Mr. Govindia during his cross-examination of Mr. Berini.

[84] Counsel for the appellants, who are also counsel on appeal, sought an order declaring a mistrial on the basis that the Crown had failed in its disclosure obligations.

[85] The Crown acknowledged that it had not made timely disclosure, but claimed that the delay had not prejudiced the appellants’ right to make full answer and defence. In any event, the Crown said, a mistrial was a disproportionate remedy. Exclusion of the proposed evidence was an appropriate and just remedy for any prejudice the appellants suffered.

[86] The trial judge declined to grant a mistrial. However, he excluded the evidence offered in reply.

The Initial Disclosure about Mr. Berini

[87] Mr. Berini was the Chief Operating Officer, Senior Vice President, and President of Global Sales of Cryptometrics U.S. and Cryptometrics Canada. He reported directly to Mr. Barra, against whom he was a key Crown witness. He was the only witness against Mr. Govindia.

[88] Mr. Berini had been indicted jointly with the appellants under s. 3(1) of the CFPOA; however, about a year before the appellants’ trial, Crown counsel severed Mr. Berini from the joint indictment. When he testified at the appellants’ joint trial, Mr. Berini remained under indictment, but had not yet been tried.

[89] Prior to trial, in 2009 and again in 2011, Mr. Berini was interviewed by FBI agents. The interviews were not recorded, and thus not transcribed. The agents summarized their interviews days or weeks later. These summaries were disclosed to defence counsel.

[90] The Canadian investigative agency, the RCMP, did not interview Mr. Berini.

[91] Mr. Berini participated in witness preparation meetings with Crown counsel. About one month later, Crown counsel disclosed an 8.5-page, point-form summary of the witness preparation meetings with Mr. Berini.

[92] After receipt of this disclosure, defence counsel sought from the Crown further disclosure of any agreement with, or consideration provided to, Mr. Berini for his testimony at the appellants’ trial. Senior Crown counsel responded that while Mr. Berini was under subpoena as a witness at trial, through his own counsel he indicated that he wanted to meet with the Crown prior to testifying. The Crown advised defence counsel that there was no deal, written or unwritten, in place for Mr. Berini.

(ii) Mr. Berini and exhibit 11(r)

[93] Mr. Berini testified for the Crown for several days between January 31 and February 9, 2018. In cross-examination by counsel for Mr. Govindia, Mr. Berini was shown a document of several pages on the letterhead of EMG. The document, styled Engagement Letter for Advisory Services, dated November 8, 2007, was addressed to Mr. Barra. Mr. Berini acknowledged his signature “for and on behalf of Cryptometrics, Inc.”. Mr. Berini pointed out that the document he was shown had not been co-signed on behalf of EMG. The document became exhibit 11(r) at trial.

[94] Among the terms of exhibit 11(r), Cryptometrics U.S. agreed to pay EMG an “upfront retainer fee of $650,000 for one year subject to extension upon mutual agreement.” EMG agreed to assist Cryptometrics U.S. “with negotiating and securing a contract with Air India” and with business development and negotiating and securing additional business in the “India Subcontinent”.

[95] On five further occasions during his cross-examination of Mr. Berini, counsel for Mr. Govindia returned to exhibit 11(r). Not once did Mr. Berini contest its authenticity. He signed the document “at the approval” of Mr. Barra.

[96] In re-examination the following day, February 9, 2018, Mr. Berini testified that he signed but did not negotiate exhibit 11(r). The case for the Crown concluded that day.

(iv) The Defence Election

[99] On May 22, 2018, Mr. Barra, who was first on the indictment, elected not to call evidence in defence. Mr. Govindia, who was charged in both counts of the indictment, elected to call evidence in defence. He testified as the only defence witness.

(v) Mr. Govindia’s Evidence

[100] Mr. Govindia testified on various days between May 22 and 29, 2018. During cross-examination, Crown counsel asked about the origins of exhibit 11(r), in particular whether the signature of Mr. Berini was an electronic signature or had been scanned onto the page. Crown counsel further suggested to Mr. Govindia that exhibit 11(r) was either a complete forgery put together by himself, or a document designed for the internal purposes of EMG to paper the transaction and the $650,000 that EMG received. Mr. Govindia said both suggestions were incorrect.

[101] When the defence evidence concluded, the proceedings were adjourned to set a date for their resumption.

(vi) The Proposed Reply Evidence

[102] When proceedings resumed in early July, Crown counsel gave notice of their intention to introduce reply evidence about the authenticity of exhibit 11(r). Counsel proposed to recall Mr. Berini to testify that his signature was an electronic signature imprinted on the document. Crown counsel said he also intended to call an RCMP officer to explain that exhibit 11(r) was not among the documents seized by the FBI.

[103] Crown counsel explained that disclosure about the proposed reply evidence would be forthcoming.

(vii) The Initial Disclosure: July 9, 2018

[104] On July 9, 2018, Crown counsel disclosed an email exchange between Mr. Berini and Crown counsel. The exchange occurred on May 16 and 17, 2018, a few days before the defence was required to elect whether to call evidence. The correspondence included Mr. Berini’s marked-up of copy of exhibit 11(r) and his comments about the legitimacy of the document.

[105] Defence counsel reviewed the disclosure. The contents revealed that communications beyond those disclosed had taken place. Defence counsel sought additional disclosure of all correspondence, notes, communications, and summaries of undocumented communications between the Crown, the RCMP, and Mr. Berini between February 9 and July 10, 2018.

(viii) The Second Disclosure: July 11, 2018

[106] On July 11, 2018, Crown counsel disclosed three further email exchanges with Mr. Berini. Two of these exchanges had also occurred before defence counsel elected whether to call a defence. In the emails, Crown counsel inquired about another exhibit – 17(f) – and sought Mr. Berini’s recollection about some meetings in New York between himself, Mr. Barra, and Mr. Govindia on November 1 and 2, 2007. Mr. Berini advised Crown counsel that he had not met Mr. Govindia prior to the recorded meeting of November 2, 2007, and had been with Mr. Barra throughout. Mr. Berini asked Crown counsel to call him about the alleged meeting on November 1, because Mr. Berini had some questions he wished to ask “to fix the event history.”

[107] Crown counsel also disclosed an email exchange with Mr. Berini on May 27, 2018. This occurred during Crown counsel’s cross-examination of Mr. Govindia. Crown counsel asked again about Mr. Berini’s contact with Mr. Govindia and the origins of a Memorandum of Understanding that the appellants had reviewed.

[108] Counsel for Mr. Govindia expressed his concern to Crown counsel about the completeness of the disclosure the Crown had provided.

(ix) The Third Disclosure: July 23, 2018

[109] On July 23, 2018, Crown counsel sent a DVD to defence counsel disclosing four additional emails between Mr. Berini and the Crown. Among them was an email from Mr. Berini on April 12, 2018 “[c]hecking to see if you need any assistance in review of writing that was discussed at the conclusion of the trial.” Mr. Berini indicated that, although he had only recently returned to work after surgery, he was “available to support.”

[111] The third disclosure also included statements that RCMP officers had taken from Mr. Berini and senior Crown counsel. Each acknowledged having met the other after Mr. Berini’s testimony had concluded and having spoken on the phone. Neither made notes of these conversations.

(x) The Request for Further Disclosure: August 3, 2018

[112] Counsel for Mr. Govindia sought further disclosure from the Crown. He asked for a copy of the consent from Mr. Berini’s counsel permitting the Crown to communicate directly with Mr. Berini after he had concluded his testimony. Mr. Govindia’s counsel also asked the Crown to reconfirm that Mr. Berini had been offered no consideration for his testimony; that no communications had taken place with Mr. Berini or his counsel with respect to the disposition of the charge against him since December 16, 2017; and that the Crown still intended to proceed against Mr. Berini on the scheduled trial date. Counsel for Mr. Govindia also sought disclosure of the exact times, dates, and durations of three telephone calls between Mr. Berini and senior Crown counsel.

(xi) The Final Disclosure: August 7, 2018

[113] On August 7, 2018, Crown counsel disclosed an email from November 15, 2017 sent by Mr. Berini’s counsel to the Crown confirming the terms of the witness preparation meeting. Anything communicated by Mr. Berini during the meeting could not be tendered by the Crown in any future proceedings against him.

[114] The Crown also disclosed an email sent by Mr. Berini’s counsel to the Crown in response to its request for Mr. Berini’s contact information. Counsel provided the information sought.

(xii) The Mistrial Application

[115] On September 5, 2018, the appellants sought a mistrial on the ground of late disclosure of the terms on which Mr. Berini had participated in the witness preparation meeting and the email exchanges between Mr. Berini and Crown counsel prior to the defence election and Mr. Govindia’s testimony.

[118] The trial judge found that the Crown had violated the appellants’ right to timely disclosure, but he was not satisfied that the appellants had established a reasonable possibility that it affected the outcome or overall fairness of the trial process, nor that it compromised the appellants’ right to make full answer and defence.

[119] In connection with the delayed disclosure of the terms on which Mr. Berini participated in the witness preparation meeting – that nothing he said would be tendered in evidence in proceedings against him – the trial judge considered the term to cause minimal prejudice to the appellants. After all, they had received a short, point-form summary of the interviews in December 2017 and could have used them in cross-examination of Mr. Berini had they chosen to do so. There was no reasonable prospect that their failure to cross-examine on those statements was affected by late disclosure of the terms on which the discussions were held. What is more, during the appellants’ cross-examination of Mr. Berini, they tested his collaboration with the Crown about any agreement for favourable treatment in exchange for his cooperation. Timely disclosure of the substance of the agreement would have had “a very minimal effect on the applicants’ substantial attack on Mr. Berini’s credibility.”

The Arguments on Appeal

[121] The appellants accept that the authority to declare a mistrial involves the exercise of judicial discretion. They concede that declaring a mistrial, thus terminating trial proceedings prior to verdict, is a remedy of last resort. They concede that, like other decisions involving the exercise of judicial discretion, a judge’s determination of a mistrial application is owed substantial deference on appeal.

[123] In this case, the appellants say, the application for a mistrial was grounded on a breach of their right to timely disclosure of the case by the Crown. That their right to such disclosure was breached was acknowledged by the Crown at trial, as well as in this court. Further, it is beyond controversy that a breach of an accused’s right to timely disclosure can amount to a breach of their right to make full answer and defence. And this breach, in turn, may warrant declaration of a mistrial as a just and appropriate remedy under s. 24(1) of the Charter based on an infringement of s. 7.

[125] The appellants contend that the unchallenged affidavits filed in support of the mistrial application demonstrated the prejudice they suffered from the untimely disclosure. This evidence, which the trial judge was required to consider but failed to do so, established more than a reasonable possibility that the information could have been used to advance a defence or make any of several decisions which could have affected the conduct of the defence.

[126] Mr. Barra argues that the late disclosure affected several tactical decisions in the conduct of his defence: the decision not to testify, but to instead rely on the evidence of Mr. Govindia in absence of any challenge to the authenticity of exhibit 11(r); the cross-examination of Mr. Govindia; and the approach to the evidence of Mr. Berini, who was a critical component of the case against the appellant Mr. Barra and the single witness in the case against Mr. Govindia. This prejudice was exacerbated by the acceptance of Mr. Berini’s evidence, in part because he had testified “voluntarily”. Likewise, by the finding that Mr. Govindia had falsified exhibit 11(r), despite the exclusion of the proposed reply evidence to that effect and the uncontradicted denial by Mr. Govindia of having done so.

[127] In addition, the appellants say that the trial judge erred in failing to consider whether the unexplained late disclosure of communications between Crown counsel and Mr. Berini, the nature of those communications, and the Crown’s misrepresentation of the nature of the agreement with Mr. Berini warranted the remedy sought in order to safeguard the integrity of the justice system, irrespective of whether the late disclosure affected trial fairness.

[128] In the end, the appellants conclude, the late disclosure created such prejudice that it cannot be said with certainty that the appellants received a fair trial. Short of a mistrial, no other remedy was adequate to alleviate the compromise of trial fairness.

Analysis

[138] The right of an accused to disclosure is but one component of the right to make full answer and defence protected by s. 7 of the Charter. No bright line rule equates a violation of the right to disclosure with a breach of the right to make full answer and defence: R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 31; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 21. It follows that an accused must do more than show a breach of the right to disclosure to obtain a remedy under s. 24(1) of the Charter: Bjelland, at para. 21, citing R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 74. That something more is to establish, on a balance of probabilities, that their right to make full answer and defence has been violated: Dixon, at para. 32; Bjelland, at para. 20.

[139] Different principles and standards apply in determining whether disclosure should be made before conviction, and determining the effect of failure to make timely disclosure after conviction. On appeal, we must decide not only whether the undisclosed information or its delayed disclosure meets the Stinchcombe standard, but also whether the failure to make timely disclosure impaired the appellants’ right to make full answer and defence. To discharge this additional burden, an appellant must show that there is a reasonable possibility the non-disclosure or delayed disclosure affected either the outcome at trial or the overall fairness of the trial process: Dixon, at para. 33.

[140] This reasonable possibility must not be entirely speculative. It must be grounded on reasonablypossible uses of the non-disclosed or untimely-disclosed evidence, or reasonablypossible avenues of investigation that were closed to the appellant because of the non-disclosure or late disclosure. If this possibility is shown to exist, then the appellants’ right to make full answer and defence was impaired: Dixon, at para. 34.

[141] An appellant who establishes an impairment of the right to make full answer and defence as a result of the Crown’s failure in disclosure is entitled to a remedy under s. 24(1) of the Charter: Dixon, at para. 35. The remedy must be “appropriate and just in the circumstances”: Bjelland, at para. 18. When the remedy sought on appeal is a new trial, an appellant must persuade the appellate court of the reasonable possibilitythat the failure affected either the outcome of the trial or the overall fairness of the trial process: Dixon, at para. 35; R. v. Jiang, 2018 ONCA 1081, 370 C.C.C. (3d) 373, at para. 4.

[143] To determine whether the default has impaired the right to make full answer and defence, we must undertake a two-step analysis. First, we assess the reliability of the result at trial by examining the undisclosed information to ascertain the effect it might have had on the decision to convict. If we are satisfied that there is a reasonable possibility that, on its face, the undisclosed information affects the reliability of a conviction, we should order a new trial.

[144] Second, where the undisclosed information does not itself affect the reliability of the conviction rendered at trial, we must consider the effect of the nondisclosure on the overall fairness of the trial process.

[145] Non-disclosure of a statement that could have affected the decision of the defence about whether to call evidence may affect the fairness of the trial process, and thus impair an accused’s right to make full answer and defence: R. v. Skinner, 1998 CanLII 809 (SCC), [1998] 1 S.C.R. 298, at para. 12. See also, R. v. T. (L.A.)(1993), 1993 CanLII 3382 (ON CA), 14 O.R. (3d) 378 (C.A.), at paras. 15-16. Similarly, non-disclosure that deprived the defence of opportunities to pursue additional lines of inquiry with witnesses or to obtain additional evidence arising out of the undisclosed material may affect the overall fairness of the trial process: Dixon, at para. 50. A remedy may also be available where late disclosure compromises the integrity of the justice system: Bjelland, at para. 23.

[146] Second, the mistrial remedy.

[147] The decision whether to declare a mistrial resides within the discretion of the trial judge. The judge must take into account all the circumstances to determine whether there is a real danger that trial fairness has been compromised. It is a remedy of last resort since it terminates the trial prematurely without adjudication on the merits: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 79. This discretion is not absolute. However, “its exercise should not be routinely second-guessed by the court of appeal”: Khan, at para. 79; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983, at para. 39.

[152] When we apply these principles to the circumstances of this case, we are satisfied, as the trial judge should have been, that there was a reasonable possibility that the delayed disclosure affected the overall fairness of the trial process. Indeed, it may also have affected the outcome of the trial and compromised the integrity of the justice system.

[154] The delayed disclosure related not only to the credibility of Mr. Berini as a witness and the reliability of his evidence, but also to a fundamental component of Mr. Govindia’s defence.

[155] Mr. Berini was a critical witness for the Crown. His testimony related to both phases of the unlawful agreement. He was a principal component of the Crown’s case against Mr. Barra and the sole source of the case against Mr. Govindia.

[156] As he entered the witness box, Mr. Berini was an indicted co-conspirator. He had been severed from the indictment on which the appellants were being tried, permitting him to be called as a Crown witness at trial. He was awaiting trial. As a former co-accused, he was familiar with the case alleged against him. It is reasonable to assume that his testimony was not born out of civic duty, but the hope of obtaining an advantage in relation to his outstanding charges, a quid pro quo, as it were.

[157] At trial, Mr. Berini’s testimony was the subject of a Vetrovec caution. The trial judge considered it dangerous to convict on Mr. Berini’s uncorroborated evidence and looked for independent evidence confirming material parts of his testimony.

[158] The delayed disclosure, among other things, related to an agreement between the Crown and counsel for Mr. Berini that the Crown would not use any information Mr. Berini provided during the trial preparation interviews in any later proceedings taken against him. The delayed disclosure also had to do with the provenance of exhibit 11(r), essentially claiming that this lynchpin of Mr. Govindia’s defence was a fabrication. Crown counsel was privy to this information, but failed to disclose it prior to the appellant’s elections about calling a defence.

[159] In addition, the delayed disclosure revealed an ongoing relationship between Mr. Berini and senior Crown counsel. Mr. Berini was no ordinary prosecution witness. He offered ongoing assistance to the Crown on evidentiary issues and submissions. The record reveals an extraordinary relationship between Mr. Berini (a Vetrovec witness, facing outstanding charges, and central to the prosecution’s case against Mr. Govindia), and senior Crown counsel, one that was defined by direct communication to one another without any witness present or intermediary in place. [Emphasis by PM]

[160] At trial, the application for a mistrial was supported by affidavit evidence from the defence setting out in detail the prejudice occasioned by the delayed disclosure. This evidence was uncontradicted and unchallenged by crossexamination or responsive material.

[161] In our view, the trial judge erred in dismissing the mistrial application. His focus was too narrow, fastening exclusively on the evidentiary value of exhibit 11(r), rather than on the impact of the delayed disclosure on the fairness of the trial and whether it compromised the integrity of the justice system.

[162] The reasons of the trial judge betray any meaningful consideration of the uncontradicted evidence about the impact of the delayed disclosure on the conduct of the defence case.

[163] In determining the nature and extent of their cross-examination of the critical Crown witness Mr. Berini, the appellants were entitled to know, contrary to what they had been advised by senior Crown counsel, that there was, in fact, an agreement with Mr. Berini about the future use of what he said during preparation. While s. 13 of the Charter would protect Mr. Berini’s compelled testimony from being used against him at a subsequent trial, no similar protection would be offered for the content of the Crown interviews, to the extent they went beyond that to which was testified in court. The appellants were entitled to know that Mr. Berini’s involvement in the case with the Crown extended well beyond what he said in the witness box. No mere witness, he. A team player. [Emphasis by PM]

[164] Further, in making the critical decision about whether to testify in answer to the charge, the appellants were entitled to information that contested the legitimacy of exhibit 11(r), something that was not readily apparent from Crown counsel’s treatment of that exhibit when it was introduced during cross-examination of Mr. Berini.

[165] We also note that even with the exclusion of Mr. Berini’s evidence about the legitimacy of exhibit 11(r), the trial judge made an express finding that Mr. Govindia fabricated the exhibit. Although he was entitled to reject Mr. Govindia’s denial of falsification, he was not entitled to consider Mr. Govindia’s rejection of the denial as proof of the contrary – falsification.

[166] In the result, the appellants have persuaded us of the reasonable possibility that the delayed disclosure affected the overall fairness of the trial process. The trial judge erred in failing to declare a mistrial as the just and appropriate remedy under s. 24(1) of the Charter.

[186] For these reasons, the appeal is allowed, the convictions set aside, and a new trial ordered.

R v BH, 2021 ABQB 689

[August 30, 2021] Sexual Assault: Vitiation of Consent by Trust Relationship [Justice J.M. Ross]

AUTHOR’S NOTE: The nature of a relationship may make true consent to sexual activity impossible. The textbook example is a teacher-student sexual relationship (assuming everyone is of age to consent). Herein, Justice Ross reviews a number of types of relationships that have been argued to be trust relationships of this sort and determines the one in question, AA sponsor and sponsee, was not one of them.  A good case to hang onto for defence counsel. 

Overview

[2] Identity, time and jurisdiction are admitted. It is also common ground that there was sexual intercourse between the complainant and the accused. The issues are whether MW subjectively consented to the sexual activity in question, to use the terminology of the majority of the Supreme Court of Canada in R v GF, 2021 SCC 20[GF] whether BH honestly but mistakenly believed that she consented. There is also an issue as to whether, if I were to find the complaint subjectively consented to the sexual activity, or there is a reasonable doubt as to subjective consent, that consent is vitiated under s 273.1(2)(c) of the Code. The Crown argued BH induced MW to engage in sexual activity by abusing a position of trust, power or authority.

Evidence

[3] MW was the only witness for the Crown; BH was the only witness for the Defence.

[4] Both MW and BH testified that they first met about one week before August 2, 2019, at an Alcoholics Anonymous (AA) meeting.

Conclusions about Credibility

[76] As previously indicated, there are aspects of BH’s and MW’s evidence that leaves me uncertain who to believe about how the sexual activity unfolded. This uncertainty is sufficient to find the Crown has not proven the mens rea of the offence beyond a reasonable doubt.

Is Consent Vitiated?

[77] The Crown submitted that any consent is vitiated under s 273.1(2)(c) of the Code. The Crown argued BH induced MW to engage in sexual activity by abusing a position of trust, power or authority, that of being MW’s AA sponsor. The Supreme Court recently confirmed in GF (at paras 24 and 33-36) that a person may provide subjective consent that is not legally effective due to duress, fraud, or abuse of authority.

[78] Before I review the evidence regarding AA sponsorship, I will review case law considering the types of relationships and circumstances that come within s 273.1(2)(c).

[79] Section 273.1 provides:

(1)   Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

…

(2)   For the purpose of subsection (1), no consent is obtained if

…

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority…

[82] In R v Audet, 1996 CanLII 198 (SCC), [1996] 2 SCR 171 [Audet], the Supreme Court of Canada considered the concept of a “position of trust or authority” in s 153(1). The case involved a 22-year-old physical education teacher, and his former student, who was 14 years old. They did not meet at school, but at a bar during summer vacation. They engaged in oral sex after coming home from the bar, and the accused was charged with sexual exploitation of a young person. The accused was aware he would be returning to the complainant’s school in the fall and teaching students in the grade that she would be entering.

[83] The trial judge and the majority of the Court of Appeal acquitted. The Supreme Court reversed the acquittal, observing that the courts below had found that the Crown must prove, “as a constituent element of the offence of sexual exploitation, that the accused actually exploited his or her position of trust or authority towards the young person,” and that this was incorrect (at para 13). The Supreme Court explicitly distinguished s 153(1) from s 273.1(2)(c), which requires the Crown to prove not only the existence of a position of trust or authority, but that the position was abused (at paras 22-25). There is no need to prove the position was actually abused under s 153(1).

[84] The Supreme Court approved the following definition of “position of trust” in Audet at para 33 (citing R v SP, [1993] OJ No 704, 1993 CarswellOnt 6991 (Ont Ct J)):

One needs to keep in mind that what is in question is not the specialized concept of the law of equity, called a “trust”. What is in question is a broader social or societal relationship between two people, an adult and a young person. “Trust”, according to the Concise Oxford Dictionary (8^th ed.) is simply “a firm belief in the reliability or truth or strength of a person”. Where the nature of the relationship is such that it creates an opportunity for all of the persuasive and influencing factors which adults hold over children and young persons to come into play, and the child or young person is particularly vulnerable to the sway of these factors, the adult is in a position where those concepts of reliability and truth and strength are put to the test. Taken together, all of these factors create a “position of trust” towards the young person.

[85] The Supreme Court also held that no evidence was required “to prove that teachers play a key role in our society that places them in a direct position of trust and authority towards their students” (at para 41).

[88] In R v Snelgrove, 2018 NLCA 59 [Snelgrove], the accused, an on-duty police officer, in uniform and in a marked patrol car, gave the intoxicated complainant a ride home from a bar. She had lost her key, and he helped her get into her apartment through an open window. She invited him in. Sexual activity ensued. The Court of Appeal held (at para 16):

[T]he relationship of an on-duty police officer to a member of the public is traditionally one of trust or authority. In the absence of evidence to the contrary, that relationship is presumed and does not require evidence.

[89] The trial judge did not instruct the jury on s 273.1(2)(c) because there was no evidence that the complainant had been reduced to a state of dependency or that the accused had misused his dominant position to extract her consent. The Court of Appeal held that this was an error (at para 24):

Section 273.1(2)(c) does not require a finding of dependency by the complainant or a dominant position by the accused. Rather, section 273.1(2)(c) is engaged when an accused abuses, that is, misuses or makes improper use of his position of trust or authority, thereby inducing, that is, persuading or enticing the complainant to consent to sexual activity.

[91] In R v Bovay, 2021 ONSC 3092, the Court held that a father was not in a position of trust towards his children’s babysitter, noting that “unlike with teachers towards their students, there is not a strong presumption that parents are in a position of trust towards their babysitters for the purposes of s. 153” (at para 72). Further, the factors in s 153(1.2) did not support the finding of an exploitative relationship in that case.

[92] In R v Makayak, 2004 NUCJ 5, a prison guard was found to be in a position of power or authority towards a remand prisoner. He was also found to have induced her to engage in sexual activity by abusing that position. Inducement under s 273.1(2)(c) does not require coercion, it includes “a more subtle form of pressure than can be inferred from the circumstances of the exercise of the power or authority” (at para 69). That inducement was found in the guard’s violating prison rules to have the opportunity to touch the complainant sexually.

[93] In my view the principles delineated in these cases do not support the application of s 273.1(2)(c) in this case.

[94] The relationship between an AA sponsor and the person they are sponsoring is not like the relationship of teacher and student or on-duty police officer and member of the public. The nature of the relationship is not sufficiently well known in the general community to find the existence of a trust relationship in the absence of evidence.

[95] The evidence in this case does not prove the existence of a trust relationship to the Crown’s standard of proof beyond a reasonable doubt. MW described the sponsorship relationship as a position of trust, but BH described a sponsor as a sober friend. No other witness testified on the subject. I accept the Defence submission that s 273.1(2)(c) requires more than the complainant’s subjective feeling of trust; it requires circumstances that support an objective determination of a trust relationship. To hold otherwise would not show the appropriate restraint described in Hutchinsonat para 18. The Supreme Court stated:

[96] If a trust relationship vitiating consent arose from the subjective feeling of the complainant, this would clearly fall short of providing “fair notice of what is prohibited and clear standards for enforcement”: Hutchinson at para 18.

[97] Adapting the language of Audet, I conclude that the Crown must prove that the relationship between the accused and the complainant was of a nature such that it created an opportunity for persuasive and influencing factors by the accused to come into play, and the complainant was particularly vulnerable to the sway of these factors. While the complainant viewed all sponsorship relationships in this way, the accused characterized a sponsor as simply a sober friend. I do not know, based on the evidence in this case, whether either of these characterizations would be generally accepted in the AA community or the broader community.

[98] Looking at the specific characteristics of this relationship, it is my view that the relationship had simply not evolved sufficiently to create an opportunity for the accused to possess persuasive and influencing factors over the complainant, or for the complainant to have a particular vulnerability to the sway of these factors. If a sponsorship relationship existed, it had existed for only one evening. The only specific activity relating to the AA program that had been undertaken by the accused was to make some arrangements for an AA group book reading to take place in his garage in the future, which would involve not only himself and the complainant, but two other AA members as well. Apart from that, the accused had given the complainant a ride home, at her request, and had later visited her in her home, at her invitation. The evidence was that the conversations between the accused and the complainant were personal, but not specifically about the AA program. Even given the age difference between the complainant and the accused, and the vulnerability of the complainant in the early days of her recovery from addiction, this is not sufficient to meet a test adapted from Audet.

[99] If I found that a relationship of trust had been proven, it would still be necessary for the Crown to prove that the accused induced the complainant to consent to sexual activity through an abuse of that relationship. This does not require coercion, but requires some form of persuasion or pressure arising from the exercise of the trust relationship. Here the complainant made it clear when the accused gave her a ride home that she did not want to be alone. In texts exchanged afterwards, there was no pressure or persuasion by the accused to permit him to visit, simply an offer to do so that was accepted by the complainant.

[100] I conclude that the Crown has not proven either a trust relationship or an inducement as required by s 273.1(2)(c). Accordingly, that section does not apply to vitiate the complainant’s consent to the sexual activity in question.

Conclusion

[101] For the reasons above, I find the accused not guilty of sexual assault.

If you have enjoyed the content of this free blog, please support us in continuing to provide this service free of charge by clicking on the advertisement below.