The Defence Toolkit – July 30, 2022

This week’s top three summaries: R v LaFrance, 2022 SCC 32: #detention and 10(b), R v Greenwood, 2022 NSCA 53: aiding, Vetrovec, co-conspirators, and R v Polusmiak, 2022 PECA 8: #translation & 10(b).

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R v LaFrance, 2022 SCC 32

[July 22, 2022] Charter Detention – Charter s.10(b) Right to Re-Consult with Counsel [Reasons by Brown J. with Karakatsanis, Martin, Kaiser and Jamal JJ. concurring and Wagner C.J., Moldaver, Côté, and Rowe dissenting]

AUTHOR’S NOTE: There are three important takeaways from this decision for defence counsel. First, R v Moran (1987), 36 CCC (3d) 225 is no longer good law. Grant governs the analysis of detention, even at a police station. The considerations in Moran are inconsistent with the objective analysis required by the current law and should be discarded. Second, the police telling suspects that they are free to leave does not have some magical power of ensuring they are not detained for Charter purposes – all the surrounding circumstances have to be considered and that advice from police is just one factor. Third, an accused’s objective confusion about their legal rights (here, understanding the lawyer could attend at the station for the interview) after a consultation with counsel should give rise to police giving them the opportunity for a second consultation when they ask for one. 

Overview

[2] The police suspected that Nigel Vernon Lafrance might have been involved in the death of an individual that took place on March 17, 2015. In the early morning of March 19, 2015, a team of armed police officers entered his home to execute a search warrant. They awoke Mr. Lafrance, a recent high school graduate described by the trial judge as “youthful, [I]ndigenous and ha[ving] minimal police exposure” (2017 ABQB 746, 399 C.R.R. (2d) 184, at para. 79), and by the Court of Appeal as “19 years old, Indigenous, [with] very limited prior exposure to the police and . . . of much smaller stature than . . . the armed and uniformed officers” (2021 ABCA 51, 20 Alta. L.R. (7th) 211, at para. 29). Ordered to dress and leave the premises, he was then led to a police officer who asked him to identify himself and come to the police station to provide a statement regarding the alleged murder. The police drove him to the police station, took him to a secure environment therein, and interviewed him for over three hours.

[3] On April 7, 2015, the police arrested Mr. Lafrance for murder. After allowing him to call Legal Aid, they interviewed him. Several hours into the interview, Mr. Lafrance asked to call his father because that would be his “only chance of getting a lawyer” (A.R., vol. V, at p. 137). The police refused the request and pushed for answers. Mr. Lafrance eventually confessed to killing the victim.

II. Facts

[7] Two interactions between the police and Mr. Lafrance followed, on March 19, 2015, and April 7, 2015, respectively.

[8] The police sought and obtained a search warrant to search Mr. Lafrance’s place of residence on the morning of March 19. A police search team of 11 ⸺ many of which were wearing bulletproof vests and carrying firearms, including at least one “assault rifle” ⸺ arrived in marked and unmarked police vehicles at 6:50 a.m., blocked off surrounding roads and entered the residence, making their way to Mr. Lafrance’s room and waking him. When he opened the door, they directed him to dress and leave his house immediately. When he asked the police for permission to look for his cat (which had run outside when the police entered the residence), they permitted him to do so, led him outside, and accompanied him as he chased after it. At all times, Mr. Lafrance remained “in sight of police officers” and did not venture past the police cordon (A.R., vol. II, at pp. 93-94).

[9] Shortly after retrieving the cat, Mr. Lafrance was approached by Sergeant (then Corporal) Eros who, unbeknownst to Mr. Lafrance, had been assigned to interview him and had been waiting for him outside….

…Sgt. Eros did not have reasonable and probable grounds to proceed to arrest Mr. Lafrance.

[10] Sgt. Eros asked Mr. Lafrance to confirm his identity (which Mr. Lafrance did), advised him that he wanted to speak about an incident that occurred down the road — referring, of course, to Mr. Yasinski’s death — and asked him to come to the police station and provide a statement. Sgt. Eros told Mr. Lafrance that doing so would be a “completely voluntary” choice. Mr. Lafrance agreed to give a statement.

[11] Sgt. Eros and Mr. Lafrance discussed how he could make his way to the police station — whether by public transit, a ride with Sgt. Eros and S/Sgt. Zazulak in an unmarked police van, or by some alternative means. Having no money for bus fare, Mr. Lafrance chose to ride with Sgt. Eros and S/Sgt. Zazulak.

[12] After a 20- to 25-minute ride to the police station, Mr. Lafrance was escorted by Sgt. Eros and S/Sgt. Zazulak through two controlled access key-carded doors to an interview room at the back of the station. He was then left alone in the closed room for at least 17 minutes, unaware (because he had not been told) that the door was unlocked. When Sgt. Eros returned to the interview room and Mr. Lafrance asked to use the washroom, Sgt. Eros escorted him to the washroom, stood by while Mr. Lafrance used the washroom, then escorted him back to the interview room.

[13] Sgt. Eros then proceeded to interview Mr. Lafrance for approximately three and a half hours. He began by telling Mr. Lafrance that he did not need to speak with him, that the door to the interview room was unlocked and that he could leave at any time. But Sgt. Eros also informed him that they were currently in a “secure environment” and that, should Mr. Lafrance want to leave, use the washroom or take a smoke break, he would have to let Sgt. Eros know.

[14] Sgt. Eros then informed Mr. Lafrance that he was a suspect in Mr. Yasinski’s murder, and asked him about “what [his] days have been filled with and what [he had] been doing” prior to the police search of his home (A.R., vol. IV, at p. 82). Mr. Lafrance gave answers, some of which were relayed to the search team, leading them to seize items of interest. Sgt. Eros also took Mr. Lafrance’s fingerprints and DNA (prior to which he was offered a chance to speak with a lawyer) and seized his cellphone along with his clothes — all of which were taken after obtaining Mr. Lafrance’s consent. At the interview’s conclusion, police drove Mr. Lafrance home.

[15] On April 7, the police arrested Mr.Lafrance for the murder of Mr. Yasinski. Shortly after the arrest, the arresting officer informed Mr. Lafrance of his right to counsel and that he would be given an opportunity to call a lawyer. Mr. Lafrance indicated that he understood this and asked to contact a “free lawyer”.

[16] At the police station, Mr. Lafrance was escorted to a telephone room and spoke on the phone with a Legal Aid lawyer. This short conversation was Mr. Lafrance’s first time ever speaking with a lawyer, having never before been arrested or otherwise required to obtain legal services. When he finished the call, the arresting officer asked Mr. Lafrance if he had spoken to a lawyer and understood the advice, to which Mr. Lafrance answered yes. Mr. Lafrance was then moved to an interview room to be interviewed by Sgt. Eros.

[17] Several hours into the interview, Sgt. Eros told Mr. Lafrance that he did not believe his version of the events and that there was no doubt in his mind that Mr. Lafrance was responsible for killing Mr. Yasinski. As the tone of the interview shifted, Mr. Lafrance asked to speak with his father before continuing to answer Sgt. Eros’ questions. When Sgt. Eros asked him why, Mr. Lafrance explained that his father was his “only chance of getting a lawyer” and that he wanted a lawyer before going forward with anything else. He said that Legal Aid told him “to get a lawyer before [he] continue[s] talking” to sit down and talk about his situation (A.R., vol. V, at p. 139). In response, Sgt. Eros explained that he “ha[d] no problem” letting him talk to his father (A.R., vol. V, at p. 138), but that Mr. Lafrance had already spoken to a lawyer. Mr. Lafrance, he said, may have misinterpreted2 the advice and so he explained to Mr. Lafrance that he could not have a lawyer present in the room with him during the custodial interview. Sgt.Eros testified, however, that he was satisfied that Mr. Lafrance understood his right to silence and his legal advice.

III. Issues

[19] This appeal presents three issues:

IV. Analysis

A. March 19, 2015

[20] Mr.Lafrance’s straightforward argument regarding the March 19 encounter is this: he was detained when the police executed their search warrant, and that detention persisted during his interview at the police station as he felt, in the circumstances, obliged to comply with the request to speak with police. It follows that the police breached s. 10(b) by failing to advise him of his right to retain and instruct counsel upon detention (Grant, at para. 28).

[21] Detention refers to “a suspension of an individual’s liberty interest by virtue of a significant physical or psychological restraint at the hands of the state” (R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 21; Le, at para. 27). In the heat of the moment, it is not always easy for ordinary citizens, who may be uninformed of their rights or the scope of the police’s powers, to know whether they have a choice to comply with a request by the police. An individual may perceive “a routine interaction with the police as demanding a sense of obligation to comply with every request” (Le, at para. 26, referring to S. Penney, V. Rondinelli and J. Stribopoulos, Criminal Procedure in Canada (2nd ed. 2018), at p. 83). For that reason, this Court has recognized that, “even absent physical restraint by the state, a detention exists in situations where a reasonable person in the accused’s shoes would feel obligated to comply . . . and that they are not free to leave” (Le, at para. 26 (emphasis added)). Even so, not every encounter between state and citizen effects a detention (Suberu, at para. 3; Le, at para. 27); no detention is effected, and therefore s. 10(b) rights are not breached, where an individual voluntarily assists the police by, for example, freely agreeing to provide a statement.

(2) R. v. Moran

[24] A jurisprudential point should be addressed before proceeding further. The Court of Appeal criticized the trial judge for not considering the factors pertinent to identifying a detention in R. v. Moran (1987), 36 C.C.C. (3d) 225 (Ont. C.A.). In my view, however, the trial judge did not err in this respect, since Grant has displaced the authority of Moran as stating the test for detention.

(a). The Circumstances Giving Rise to the Encounter

[29] At this stage, the Court must consider how the circumstances of the encounter would have been reasonably perceived by Mr. Lafrance ⸺ more specifically, “whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling [him out] for focused investigation” (Le, at para. 31(a); Grant, at para. 44(2)(a)).

[30] I observe that the trial judge began by looking to the background information available to Sgt. Eros and the police during the initial steps of their investigation, including his assignment to speak to Mr. Lafrance outside the home. In Le, however (which I note was unavailable to the trial judge at the time of decision), the Court explained that “investigative purposes are important when assessing whether the detention was arbitrary and whether the police were acting in good faith”, but “are less relevant” when reviewing the first Grant factor (paras. 37-38). Behind-the-scenes knowledge of a police investigation would not be known by a reasonable person in the accused’s position.

(b). The Nature of the Police Conduct

[34] The second Grant a factor directs a court’s attention to the nature of the police conduct throughout the encounter. Specifically, their actions and language used, their use of physical contact, the place where the encounter occurred, the presence of others, and the duration of the encounter, may all play a role in shaping the perceptions of the reasonable person in the accused’s shoes (Grant, at para. 44(2)(b); Le, at paras. 31(b) and 43).

(i) Actions and Language of the Police

[35] A central feature of the Crown’s position is its argument that an encounter is prima facie voluntary where the police explicitly inform an individual that he or she need not cooperate. This, the Crown says, functions as an intervening event that informs the interpretation of preceding and subsequent events so as to eliminate any possibility of police detention….

[37] So understood, the test in Grant is premised upon a practical reality of interactions between police and citizen, especially where the interaction concerns a criminal investigation. While words uttered by the police may hold a certain significance to trained and experienced police officers or to those trained in the law or otherwise already aware of their rights and how to exercise them, they may hold less significance, or different significance, to vulnerable individuals unfamiliar with their Charter rights. This particular instance of the imbalance of power between state and citizen that characterizes our criminal justice system is exacerbated by the psychological dynamics of police interrogation, where even repeated assurances that a detainee is free to leave may be disregarded, especially by innocent persons seeking to absolve themselves of any wrongdoing.

[38] …I therefore reject the Crown’s submission that a detention prima facie cannot arise where police state that the individual may decline to speak with them or may leave whenever a statement is presented….

[39] To summarize: no single consideration, including a police statement to an individual that he or she is “not detained” or otherwise under any obligation to cooperate or may leave, is determinative of whether a detention has occurred. Where present, it is a single consideration among others for which a court should account in deciding whether a reasonable person in the shoes of the accused would feel obliged to cooperate. It does not automatically turn the tide, and may not turn the tide at all, where other factors point to a finding of detention.

[40] Indeed, Sgt. Eros’ statements to Mr. Lafrance do not turn the tide here. While they militate against a finding of detention, they are outweighed by circumstances that support the opposite conclusion, namely that a reasonable person in his position would have felt compelled to comply and unfree to leave. For example:

• Mr. Lafrance awoke to 11 police officers at his residence, with vans, firearms and bulletproof vests, ordering him to dress and get out of the house;
• The police accompanied Mr. Lafrance while he searched for his cat;
• Sgt. Eros approached Mr. Lafrance after he went outside, asked him to confirm his identity and told him that he wanted to ask him questions relating to Mr. Yasinski’s death;
• The only practical means available to Mr. Lafrance for getting to the police station was for him to be driven, which he was in an unmarked police vehicle accompanied by two police officers;
• At the station, the police brought Mr. Lafrance to an interview room at the back of the police station that was behind two sets of locked doors;
• The police left Mr. Lafrance in the interview room for at least 17 minutes, having closed the door behind them, and did not inform him that the doors were unlocked; and
• The police told Mr. Lafrance that he was in a secure environment, controlled his access to the outside of the interview room, and kept him under surveillance during the course of the interview, including escorting him to the bathroom.

[41] As is evident from the analysis in Le (at para. 50) and Grant (at paras. 50-52), considering the use by police of physical contact with a subject extends to their physical proximity to a subject. Even where, strictly speaking, there is no physical contact, deliberate physical proximity within a small space can create an atmosphere that would lead a reasonable person to conclude that leaving is not possible (Le, at para. 50; Grant, at para. 50)…

…For example, a reasonable person in Mr. Lafrance’s shoes might, particularly after he was escorted to the bathroom, view the investigating officers’ constant proximity as suggesting that any attempt to leave, at least on his own, would be met with physical resistance.

[42] …In my view, considerations of physical proximity alone would have little if any impact on whether a reasonable person in Mr. Lafrance’s position would feel free to decline to speak to police or to leave.

(iii) The Presence of Others

[43] This is a is a significant consideration here. Except while he was left alone in the interview room and in the bathroom, Mr. Lafrance was in the presence of at least one police officer throughout his interaction with the police, from the moment they awoke him in his home…

…These officers weighed approximately 220 lb. to 245 lb., respectively (while Mr. Lafrance weighed 130 lb.), and S/Sgt. Zazulak was armed and wearing a bulletproof vest. Their continued presence and supervision would tend to contribute to the perception of a reasonable person in Mr. Lafrance’s shoes that he or she was not free to decline to speak or to leave.

[44] My colleagues appear to understand this consideration, as it was stated in Le, as applying only to the presence of witnesses, as opposed to the police (para. 152). Putting aside that the police were witnesses here, I see no good reason to keep to such a narrow purview. The “presence of others” was not a novel consideration in Le. It is one of the factors listed in Grant to evaluate “[t]he nature of police conduct” (para. 44(2)(b) (emphasis added)). For that reason, the Court, in support of its finding of psychological detention in Grant, pointed to the presence of other police at the time of the encounter (paras. 49-52). The point is that all police conduct relevant to whether a reasonable person in Mr. Lafrance’s shoes would have understood himself or herself as free to leave must be considered. Indeed, that the witnesses were police, if anything, weighs more heavily in finding a detention than if they were mere bystanders.

R v Greenwood, 2022 NSCA 53

[July 26 2022] First Degree Murder: Aiding and Abetting mens rea, Vetrovec exculpatory evidence, Co-Conspirators Exception to Hearsay [Reasons by David P.S. Farrar with Van den Eynden and Beaton JJ.A. concurring]

AUTHOR’S NOTE: There are numerous errors in the judgment below that lead to good points of law being very well explained for defence lawyers. With respect to Aiding in First Degree Murder, a jury must be instructed that the aiding accused must know that the principle intends to commit a planned and deliberate murder (ie. not just a murder). On the Vetrovec front, when such a witness gives exculpatory evidence (or mixed inculpatory and exculpatory evidence) the jury must not be instructed that their exculpatory evidence be treated the same. No confirmatory evidence is required for the exculpatory aspects of the evidence. If the evidence is mixed, the trial judge has a duty to delineate that which is subject to the confirmatory evidence requirement and that which is not.  Finally, on the co-conspirator’s exception second step (determining whether the accused was probably a member of the conspiracy) only direct evidence can be considered. According the NSCA this means: both inculpatory and exculpatory evidence. The trial judge is required to review what this consists of. Also, the trial judge has to be clear that all this allows is the use of out of court statements of the other conspirators to determine if the accused committed the acts reus and had the mens rea for first degree murder (here: aiding in that offence). 

Overview

Background

[4]            Lawrence also pleaded guilty to first degree murder in the death of Charles Maddison.  He killed him on September 8, 2000.

[6]            Lawrence had a criminal history, spanning from 1992 to 2012, which included drug offences, robbery, use of firearms and the three first degree murders referred to above.

Lawrence’s Testimony

[18]         When they got to Panuke Road, Lawrence told Mr. Maddison to pull over on the side of the road and stop.  He told him they were going to go for a walk in the woods and Lawrence was “just going to leave him there for a little while and just take his truck”.  They walked a short distance into the woods where Lawrence shot Mr. Maddison in the chest and then the head to “make sure he was dead”.  He left Mr. Maddison’s body in the woods, went back to the truck, and drove away.  This was at approximately 9:00 a.m.

[20]         However, the robbery never occurred.  Lawrence arrived too late and the Brink’s truck was leaving as he was driving in.

[21] … Lynds told Lawrence he was going to have to do it the next day.  Lawrence agreed.  Lawrence left Mr. Maddison’s truck in the business park.

[24]         Lynds advised Lawrence that there had been a change in plans.  When they got in Lindsay’s car, Lynds told Lawrence that Lawrence was going to do a hit for him to repay the debt instead of committing the robbery.

[26] …Then, in Lindsay’s car, Lynds and Lindsay drove Lawrence past Kirk Mersereau’s home to show him where he lived. This was the first time
Lawrence was told Mersereau’s name.

[31]         When Lynds returned, Lawrence testified Greenwood was with him.  Lawrence did not know Greenwood.  He had never met him.

[32]         Lawrence claimed that Lynds informed him of another change in plans.  Greenwood was going to go with him to the Mersereau residence, and both Nancy Christensen and Kirk Mersereau were to be killed.

[33]         Lawrence said Lynds explained to him that Greenwood knew Mersereau and was trusted by Mersereau, so he could easily get into the house.

[34]         Lynds also had with him another gun, a .32 calibre pistol.  Lynds cleaned the bullets and loaded both the .357 Magnum and the .32 calibre to capacity.

[35]         Lawrence testified he was instructed by Lynds that they would drive in Greenwood’s car to retrieve Mr. Maddison’s stolen truck and then drive the truck to Mersereau’s to commit the murders.  He was also instructed Greenwood would have the .357 Magnum, enter in the house first, shoot Mr. Mersereau and Ms. Christensen.  Lawrence would come in after to ensure that they were dead.

[36]         After the killings, they were to drop the guns off the bridge on Station Road into the Kennetcook River.  They would then return to the clearing where they had previously stashed the truck, burn it, and leave in Greenwood’s car.

[37]         Lawrence testified he and Greenwood left Lynds’ house in Greenwood’s car with a jug of gasoline and the guns.  They then drove to the clearing to retrieve Mr. Maddison’s truck.

[38]         With Greenwood driving the truck, they drove to the Mersereau residence.

[39]         Lawrence said they parked near Mersereau’s home, and he stayed on the floor of the truck to avoid being seen.  Greenwood went into the house with a .357 Magnum.  Lawrence testified he was on the floor of the truck for about five minutes when he heard gunshots.  He then got out of the truck and headed toward the house.  On the way, he was attacked by a Rottweiler dog.[1]  He fired the .32 twice and shot the dog once.  He then entered the house where he observed Mr. Mersereau and Ms. Christensen who both appeared to him to be dead.

[40]         … Lawrence walked over to Mr. Mersereau and shot him in the head twice with the .32.  He then shot Ms. Christensen in the head and returned and shot one more bullet into Mr. Mersereau’s head.  At that point, he said the gun was empty.

[41]         Lawrence then left the house where he met up with Greenwood.  He said Greenwood forgot his sneakers in the house and returned to retrieve them.  They then drove away.  It was approximately 8:00 p.m.

[42]         They stopped on the bridge on Station Road and Lawrence got out and threw the two guns in the river.

[43]         Lawrence testified they returned to the same clearing where they had picked up Mr. Maddison’s truck earlier, removed their clothing, placed the clothing inside the truck, put new clothing on, doused the truck with gasoline, and set it on fire.  At approximately 9:00 p.m., Saturday, September 9, 2000, they left in Greenwood’s car.d

[45]         The next morning, Lawrence said that he and Greenwood went to Lynds’ house at approximately 9:00 a.m. or 10:00 a.m.  When asked what happened at Lynds’ house, Lawrence replied:

1.      We confirmed what we had did for him.
2.      Okay. So just tell me how you confirmed what you had done.
3.      That they were shot dead and it was over with.
4.      Okay. So who said what?
5.      I told them … Curtis said it was … I confirmed that I did what he sent me to do.
6.      Okay.
7.      Had shot them in the head after Les had shot them first.

[46]         After hearing this, Lynds confirmed to Lawrence that his drug debt had been satisfied.

Greenwood’s Statements

[50]         The interaction with the undercover officers occurred on November 30, 2010 over the course of about three hours.  Three undercover officers posed as members of Hells Angels from Montreal sent to see if Greenwood could discredit what Jeff Lynds had been telling the police in more recent times about the then ten-year-old unsolved murders.  In his interactions with the undercover officers, Greenwood again denied having a gun, shooting either of the victims, or knowing of any murder plan.

Other Witnesses

[53]         Jeff Lynds did not testify.  He was dead before Greenwood’s first trial.  In the first trial, the recorded statement of Jeff Lynds was played during Greenwood’s police interrogation.  In Greenwood #1, Fichaud J.A. found the recorded statement of Jeff Lynds to be inadmissible.  It was not played at the second trial.

[54]         However, hearsay evidence of Jeff Lynds still found its way into the record at the second trial through the playback of Greenwood’s arrest statement as set out above.

[55]         Curtis Lynds did not testify at either trial.  Neither did Jonathan Burgoyne.

[56]         Jason Lindsay gave evidence at Greenwood’s first trial.  By the time of the second trial, he was also deceased.  The jury heard a playback of his evidence from the first trial.  Fichaud J.A. referred to Lindsay’s evidence in Greenwood #1:

[41]      Lindsay first mentions Greenwood in his account of Sunday morning, September 10. On the Crown’s direct examination, Lindsay testified:

            Q.  So on Sunday, September 10th of 2000, were you at Curtis’s house …

            A.  Yeah. …

            A.  I recall seeing Les and Mike come up the driveway in an old brown, I think it was like a Skylark or a smaller car.

            Q.  So when you … when you say “Les”, which Les are you referring to?

            A.  Greenwood.

            Q.  And Mike?

            A.  Lawrence. …

            Q.  And what happened next?

            A.  They … Curtis … they were outside by the front deck of Curtis’s house and Curtis confronted Mike and asked him if he did that? And Mike said,   Yeah, I got them both.

            Q.  And what did Curtis say?

            A.  Curtis, after that, he was just standing there.

            Q.  And what … what else …

            A.  Curtis asked Mike if he did that and that’s what Mike said, Yeah, I got them both.

            Q.  And so …

            A. And Les never said a word, he was just standing right beside Curtis, like the three of them were (there?)

            Q.  So you described Les as looking what?

            A.  Pale.

            Q.  And any other way you could describe him?

            A.  It was like he’d seen something he shouldn’t have. [Emphasis added.]
[57]         Lindsay’s recollection of the conversation on September 10, 2000 differs significantly from Lawrence’s testimony at the second trial.  Lindsay did not recall Lawrence making any reference to “we” when referring to who committed the murders.

Analysis

Issue 1: The trial judge erred in his instructions on mens rea for both principal and party liability and in failing to leave second degree murder as a possible verdict.

[65]         Recently, in R. v. Goforth, 2022 SCC 25, the Supreme Court of Canada reiterated that an accused is entitled to a properly, not a perfectly, instructed jury.  This standard of review applies to Issues 1, 2, 3, 6 and 7 as I have set out above.

Instructions on Mens Rea for Principal and Party Liability

[68]         The liability of an aider for first degree murder is distinct from that of a principal.  As noted by this Court in R. v. Kelsie, 2017 NSCA 89[2]:

[78]      The liability of an aider of a planned and deliberate murder depends on two things: (i) whether the principal had in fact planned and deliberated on the murder; and (ii) whether the aider knew of the planning and deliberation by the principal. […]

[79]      In R. v. N.T.J., after canvassing the law, Beveridge, J.A. provides a useful summary …

[80]      From this brief canvas of the law, there are some fundamental principles that emerge.  In the context of an aider’s potential liability for a planned and deliberate first degree murder, a trier of fact must be satisfied beyond a reasonable doubt that the accused:

–   did or omitted to do something that aided another person to unlawfully cause the victim’s death

–   did those things (or at least one of them) for the purpose of aiding that other person to unlawfully cause the victim’s death

–   when he did those things (or at least one of them) he either had the requisite intent for murder or knew that the principal offender had the requisite intent for murder

–   when he did those things (or at least one of them), he did so for the purpose of aiding the principal offender to commit a planned and deliberate murder

–   when he did those things, he planned and deliberated the murder, or knew that the murder was planned and deliberate

[99]      To be found liable for first degree murder as an aider or abettor of a planned and deliberate murder, an accused must have knowledge that the murder was planned and deliberate; wilful blindness will satisfy the knowledge component of s. 21(1)(b) or (c): Briscoe, at paras. 17, 21, 25. In Almarales, this court described in more detail the mens rea element for first degree murder, at para. 70:

… An aider must know that the principal intends to commit a planned and deliberate murder, and intend to help the principal to commit a planned and deliberate murder. …

[71]         Trial judges should describe separately the essential elements for party liability and principal liability (Kelsie, at ¶80-81).  Trial judges should refer to the essential elements of party liability as an aider when discussing the “planned and deliberate” requirement for first degree murder.

[74]         In Kelsie, the Court rejected the Crown’s argument …

[88]      It is not sufficient for the trial judge to have charged on planning and deliberation as a principal and then, without the jury being told, assume that they would necessarily come to the conclusion that aiding first degree murder required the appellant to have knowledge of planning and deliberation by Gareau.

[64]      Since the actus reus and mens rea of aiding and abetting are different from the corresponding elements of the principal offence, jury instructions in a case in which an accused is alleged to have participated in the commission of an offence as an aider or an abettor should not only explain the essential elements in aiding or abetting, but should also link those elements to the essential elements of the offence charged, so that the jury understands what the Crown must prove to establish an accused’s liability for the specific offence as an aider or an abettor.  Whether the aider or abettor is tried jointly with the principal, or, as here, separately, is of no moment – the principles governing the liability of the aider or abettor remain the same: Sparrow, at pp. 457-458. [Emphasis added.]

[84]         Second, the trial judge did not instruct the jury that a finding of guilt for first degree murder as a party required the appellant to have knowledge of the principal’s planning and deliberation. As in Kelsie, to assume that the jury “would necessarily come to the conclusion that aiding first degree murder required the appellant to have knowledge of planning and deliberation” is not sufficient (¶88).

[86]         The distinction between mens rea for an aider and for a principal is important in this case.  Other than Lawrence’s testimony, there was no evidence that Greenwood was involved in the planning and deliberation of the murders.  Lindsay’s evidence, which I will discuss in more detail later, certainly calls into question Greenwood’s involvement and knowledge that a murder was going to take place, let alone a planned and deliberate murder.

Issue 2: The trial judge erred in failing to provide a sufficient corrective instruction when the jury heard hearsay evidence of Jeff Lynds in Mr. Greenwood’s arrest statement.

Jeff Lynds’ Hearsay Statement and the Trial Judge’s Instruction

[92]         As noted earlier, the Jeff referred to is Jeff Lynds.  There is no evidence Jeff Lynds was at the Mersereau residence at the time of the shooting—he could not have seen Greenwood with a gun, nor could he see him pull the trigger.  Hearsay from him should not have been admitted.  The Crown acknowledges this.  The question then becomes whether the judge’s instruction to the jury alleviated any prejudice that arose as a result of this evidence having been admitted.

[94]         After this discussion, the offending portion was removed from the transcript the jury received.  However, they had already heard the evidence from the audio-tape.  The trial judge then said this to the jury:

… It’s only what Mr. Greenwood says and the only reason you’re hearing from anybody else is to give a context to what Mr. Greenwood says.  Counsel, is that instruction satisfactory? [Emphasis added.]

[98]         Similarly, the trial judge here instructed the jury that what Jeff Lynds said was to give context to what Greenwood said.

[100] … There is nothing to contextualize.  The evidence was clearly inadmissible and has no probative value.  Its prejudice is obvious.  The only issue was Greenwood’s credibility in his responses to the police officer on the audio-tape.  To tell the jury they could use Jeff Lynds’ hearsay evidence to give context to what Greenwood said creates the same issue as the first trial.  Attributing any value to what Jeff Lynds said was impermissible.

[106]   The jury could also have used or relied on the hearsay statement to corroborate Lawrence’s testimony.  The trial judge had provided the jury with a Vetrovec warning in relation to Lawrence’s evidence telling the jury it would be dangerous to accept Lawrence’s testimony unless someone else confirmed what he said.  Jeff Lynds’ statement does that—it puts Greenwood at the murder scene, with a gun, and pulling the trigger.

[108]   I would allow this ground of appeal.

Issue 3: The trial judge erred in failing to differentiate between Jason Lindsay’s inculpatory and exculpatory evidence in his Vetrovec caution.

Jason Lindsay’s Vetrovec Warning

[125]   Jason Lindsay’s criminal record spans from 1991 to 2009.  In 2010, police told Lindsay they were charging him with Maddison’s murder based on information they received from Jeff Lynds.

[126]   Lindsay contacted police to give his story.  He signed an agreement with the RCMP and entered the witness protection program.  He was compensated monetarily for his cooperation and was never charged.

[127]   As noted earlier, Lindsay testified at Greenwood’s first trial, but died before the second trial.  His evidence from the first trial was played to the jury.  On September 6, 2000, he was at his friend Burgoyne’s house.  Lawrence and Curtis Lynds arrived talking of a plan for Lawrence to rob a Brink’s truck.  Lindsay agreed to be the getaway driver.  In return, he was to receive a rifle from Lynds.[4]  He picked Lawrence up at Lynds’ the next morning and dropped him off at a highway overpass around 6:30 a.m.

[134]   On September 10, Lawrence arrived at Lynds’ with Greenwood in a small multi-coloured car.  Greenwood looked pale, like he “saw something he shouldn’t have”.  Greenwood did not say anything.  Lynds asked Lawrence if he did it and Lawrence responded, “[Y]eah, I got them both”.

[135]   After the playback of Lindsay’s evidence, the trial judge provided a detailed mid-trial Vetrovecinstruction.  After referring to Lindsay’s criminal record, compensation from police, and incentive to avoid being charged with Mr. Maddison’s murder, the trial judge instructed the jury:

 … There’s a danger of convicting somebody of murder based on the unconfirmed evidence of someone like Jason Lindsay, though it’s possible for you to do so if you’re satisfied that it’s true.

            […] it really has to be brought to your attention now so you’ll be aware of it, now and as the trial moves on. So during the rest of the trial you should look for and look back at what you’ve seen and heard for some confirmation of Jason Lindsay’s evidence from somebody or something other than Jason Lindsay before you rely on [his evidence in] deciding whether the Crown has proven the case against Mr. Greenwood beyond a reasonable doubt. …

[136]   In R. v. Riley, 2019 NSCA 94, Scanlan J.A.’s dissent was upheld by the Supreme Court of Canada (2020 SCC 31).  In his reasons, Scanlan J.A. distinguished between purely exculpatory, inculpatory, and mixed witnesses when giving a Vetrovec warning:

[137]   More recently in R. v. Grant, 2022 ONCA 337, the Ontario Court of Appeal addressed the importance of distinguishing between a witness’s inculpatory and exculpatory evidence:

…

[91]      Notwithstanding the exculpatory tendency of several aspects of Kamkin’s evidence, the trial judge included his evidence in her traditional charge on eyewitness identification evidence. That was an error for several reasons.

[93]      Second, the charge did not offer the jury any assistance about how to distinguish exculpatory from inculpatory evidence and assess the exculpatory evidence. Instead, it treated Kamkin’s evidence as a single whole. […] [Emphasis added.]

[138]   In my view, the judge here erred in a similar manner as the trial judge in Grant.

[145]   I would allow this ground of appeal.

Issue 6: The trial judge erred in failing to review the exculpatory evidence regarding the appellant’s membership in the conspiracy at step two of his Carter instruction.

The Carter Instruction

[164]   In R. v. White (1997), 1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225 (ONCA), the Ontario Court of Appeal stated that there is no formula required for instructions to a jury on the Carter analysis.  …

[165]   Unlike White, the trial judge here did not go through the evidence in detail to point out to the jury the evidence they could properly consider against Greenwood at step two of Carter.

[168]   Although, as the Crown says, it may not have been necessary to give the Carter instruction, if the trial judge was going to do so, he had to review the direct evidence, both exculpatory and inculpatory, against Greenwood at step two of Carter.  He failed to do so.  This was important as the only person who testified that Greenwood was involved in the planning of the murders was Lawrence.  Lindsay’s evidence could have called into question Greenwood’s involvement in the plan.

[172]   I would allow this ground of appeal.

Conclusion

R v Polusmiak, 2022 PECA 8

[July 15, 2022] Charter s.10(b) – Right to Translation of Rights, Charter s.9 – Overholding [Reasons by John K. Mitchell J.A. with Michele M. Murphy and David H. Jenkins JJ.A. concurring]

AUTHOR’S NOTE: This case is a useful high level reminder that simply reading someone their s.10(b) rights does not end the informational obligations of the police. They have to ensure the person understands. Where the person has objective difficulty with English, they have an obligation to use online translation services or a translator to ensure they understand the basic rights being read. Further, the case also deals with the s.9 overholding of an individual pursuant to police policies or practices. Such polices and practices do not trump Constitutional considerations. Where the two conflict, the policies are just evidence of systemic violations. 

Introduction

Balanced against his finding of credibility is the overriding concern of our courts that persons understand their Charter rights to counsel, and when one is dealing with a person whose first language is not English, there is always a suspicion and concern with respect to the ability to comprehend, particularly information as to legal rights using words such as ‘counsel’ and ‘legal aid’.

1. establish the identity of the person;
2. secure or preserve evidence of or relating to the offence;
3. prevent the continuation or repetition of the offence or the commission of another offence; or
4. ensure the safety and security of any victim or witnesses to the offence; and finally,
5. if the person is released from custody, the person will fail to attend court.

…The officer-in-charge must have consideration to all of the circumstances. A non- exhaustive list of those conditions would include: the accused’s blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused’s vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established.

[87] …R. v. Pino, 2016 ONCA 398

• The approach should be generous, consistent with the purpose of s. 24(2).
• The court should consider the entire “chain of events” between the accused and the police.
• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct.
• The connection between the evidence and the breach may be causal, temporal or contextual or any combination of the three connectors.
• But the connection cannot be either tenuous or remote.

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