This week’s top three summaries: R v O’Brien, 2023 ONCA 197: s.8/24(2) search for #passwords, R v Brooks, 2023 BCCA 121: not #similar, and R v Nagy, 2023 ONCA 184: after the fact conduct.
This week’s top case deals with s.8 search issues. For great general reference on the law of search and seizure, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
Search and Seizure
By David Schermbrucker, Randy Schwartz, Mabel Lai, & Nader Hasan
R v O’Brien, 2023 ONCA 197
[March 22, 2023] Charter s.8/10(b): Password Demand on CP House Search, s.24(2) Seriousness of Infraction [Reasons by David M. Paciocco J.A. with Janet Simmons and B. Barnett JJ.A. concurring ]
AUTHOR’S NOTE: Search warrants do not grant police the right to interrogate suspects in their home without access to counsel and demand the production of passwords. The Charter protects against this conduct both through the 10(b) right to counsel and the s.8 right against unreasonable search and seizure. Also, this case reminds us that systemic violations weigh heavily in favour of the exclusion of evidence – police conduct which repeatedly results in the violation of Charter rights should result in the exclusion of evidence.
OVERVIEW
[1] A caregiver created pornographic images and videos of a seven-year-old child in her care. Police learned that she had been sharing images and videos with several individuals, including with someone using an IP address that was linked to the appellant, John O’Brien’s, home. On February 28, 2019, police obtained a warrant to search Mr. O’Brien’s home for electronic devices and related items, including notes of device passwords The execution of that warrant yielded evidence that led to Mr. O’Brien being charged with accessing child pornography over the previous eleven-month period.
[2] At his trial Mr. O’Brien applied to have the evidence secured during the execution of the search warrant excluded because of alleged breaches of the Canadian Charter of Rights and Freedoms. The trial judge found that the manner in which the search was executed contravened s. 8 of the Charter, and that during the search the police also breached ss. 9 and 10(b) of the Charter. The trial judge excluded evidence extracted from Mr. O’Brien’s iPhone after the trial Crown conceded its exclusion but held that the admission of the evidence secured from a Dell computer located in the house, as well as a seized USB thumb drive and photographs taken in the basement of the home would not bring the administration of justice into disrepute.
[3] On the strength of the admitted evidence, Mr. O’Brien was convicted of accessing child pornography contrary to s. 163.1(4.1) of the Criminal Code, R.S.C., 1985, c. C-46.
[5] Mr. O’Brien appeals his conviction, arguing that the trial judge erred in her s. 24(2) decision by admitting the evidence that she did, thereby requiring a new trial. He also seeks leave to appeal the two s. 161 orders I have just described.
[6] For the reasons that follow, I agree that the trial judge erred in admitting evidence seized from the Dell computer. I would therefore allow Mr. O’Brien’s conviction appeal and order a new trial. Given this outcome it is unnecessary for me to comment on the sentence appeal. I will say no more about it.
MATERIAL FACTS
[7] On February 28, 2019, at approximately 9:00 a.m., Mr. O’Brien and his wife, Kathryn King, were awakened by banging on the door of their home, where they were sleeping. When Mr. O’Brien robed and answered the door, three police officers were present. They identified themselves, showed him the search warrant, which included the authority to search and seize electronic devices, and entered the house.
[8] … The police officers had incomplete notes with “disappointing” gaps on several points, and although the trial judge found Mr. O’Brien and Ms. King to be credible witnesses, she found that they may not be entirely reliable because they were somewhat overwhelmed by events….
[9] For their part, Mr. O’Brien and Ms. King described a highly intrusive police entry, with Ms. King in bed wearing only a tank top when the officers entered, yelling commands, directing Mr. O’Brien and Ms. King’s movements, separating them, and not telling them they were free to leave or that they did not require permission to undertake acts such as making coffee or going to the bathroom. They testified that almost immediately upon entry, the officers demanded the passwords to their personal electronic devices – in Mr. O’Brien’s case to his iPhone and Dell computer, and in Ms. King’s case to her iPhone. Mr. O’Brien and Ms. King testified that they provided the passwords, believing they were compelled to do so. With respect to the Dell computer that was kept in the basement, Mr. O’Brien testified that he followed an officer down to the computer and wrote the password down on a piece of paper.
[10] The officers denied separating Mr. O’Brien and Ms. King. D.C. Rieder testified that she advised Mr. O’Brien and Ms. King that they were free to leave. None of the officers had any recollection of asking for the passwords to the Dell computer, but D.C. Rieder testified that she asked Mr. O’Brien for the password to his iPhone after entering the home. She also believed that she obtained the password for Ms. King’s phone.
[11] D.C. Dunnill, the forensic computer examiner who was present during the search, confirmed that he accessed and previewed Mr. O’Brien’s iPhone with a password provided by another officer. He testified that upon executing search warrants for electronic devices, police routinely ask for passwords without explaining that it is unnecessary to comply, and without explaining what the consequences of compliance would be.
[12] D.C. Hagstrom testified that he gained access to the Dell computer using a password he found written on a piece of paper that was in front of the Dell computer.
The Section 8 Violation
[13] Based on the evidence before her, the trial judge found that the manner in which the police conducted the search violated s. 8 of the Charter. Specifically, she found that the police contravened s. 8 of the Charter by asking Mr. O’Brien and Ms. King for passwords to their electronic devices during the execution of the search warrant, without seeking their informed consent….
…She found, based on the evidence, that this was routine behaviour, and commented, “I am very concerned about the apparent cavalier attitude towards obtaining passwords, by asking for them without explaining the basics of valid consent.” She commented at the end of her decision, “This is a serious matter which needs to be addressed by the police service.”
[14] Although she did not say so expressly, it is clear from her decision that the trial judge accepted the evidence before her that without the password to Mr. O’Brien’s iPhone it would have been very difficult to access its contents…
The Sections 9 and 10(b) Violations
[15] …As a result, she found that Mr. O’Brien “[was] not aware of [his] rights and options, including the right to leave, [his] level of freedom within the house, and the right to call counsel for advice”, and that even though the police had not separated Mr. O’Brien and Ms. King or told them that they must ask permission to do things, they reasonably believed that they were being separated and needed such permission. The trial judge commented, “I find it is not necessary to determine a specific starting point [for the detention], but this conversation [advising them of their rights] should have taken place early in the search process.” She therefore concluded that “both sections 9 and 10(b) were infringed.”
Section 24(2)
[16] …The trial judge did not explain her application of the three Grant factors to the search of Mr. O’Brien’s iPhone, after accepting the trial Crown’s concession that the contents of that search required exclusion, pursuant to s. 24(2). She did explain her application of the three Grant factors to the balance of the evidence and found that its admission would not bring the administration of justice into disrepute. It is convenient to describe her material reasoning in this regard while analyzing the grounds of appeal.
ANALYSIS
THE SERIOUSNESS OF THE S. 8 VIOLATION
[21] I will note at the outset that the Crown argued on appeal that the request by the police for the passwords to the electronic devices was not a breach of s. 8. Rather, the appeal Crown conceded that a serious s. 10(b) violation occurred when the police asked for the passwords before Mr. O’Brien had a reasonable opportunity to consult counsel. Given the trial judge’s detention finding, which was not challenged on appeal, I accept the Crown’s concession that s. 10(b) was violated and that this violation was serious. A similar violation occurred in R. v. Boutros, 2018 ONCA 375, 361 C.C.C. (3d) 240 (Ont. C.A.), at para. 11. However, I do not agree that no s. 8 violation occurred.
[22] ….It is trite law that an otherwise lawful search can become unreasonable because it was executed unreasonably: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278. It is important to recognize, in my view, that the execution of a search warrant creates an inherently coercive atmosphere. Officers are empowered by law to enter a place, in this case a dwelling house, and to take control of the occupants to facilitate the search. It was while making commands under the authority of the search warrant, in this coercive atmosphere, and almost immediately upon entering the dwelling house, that police officers began to ask the occupants for their passwords, knowing that the occupants were not lawfully required to furnish them. In these circumstances, I agree with the trial judge, and with the apparent concession of the trial Crown, that the manner in which this search was conducted contravened s. 8 of the Charter.
[23] I also agree that the trial judge erred in assessing the seriousness of this breach. I do not accept the Crown’s submission that she simply gave less weight to the seriousness of the breach than others may have done, as she was entitled to do. As Mr. O’Brien argues, the trial judge erred by failing to consider her own findings about the systemic nature of the s. 8 breach when assessing its seriousness. I will elaborate.
[24] …In R. v. Tim, 2022 SCC 12, 412 C.C.C. (3d) 147, at para. 82, Jamal J. explained that there is a spectrum or scale of police misconduct. The more serious the offending conduct, the more pressing the need for the court to dissociate itself from the fruits of that conduct.
[25] It is also settled law that the seriousness of the breach is aggravated where there is a systemic problem or pattern of Charter-infringing conduct: R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286 (Ont. C.A.), at para. 85, citing Grant, at para. 75; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 25. This follows from the prospective role that the exclusionary rule is to play, in which “the judge’s analysis must focus on systemic concerns”: Grant, at para. 201.
[26] …As I have indicated, the trial judge found that the officers involved in the search understood the heightened expectation of privacy in electronic devices and in passwords for such devices, yet routinely asked for passwords while acting under the compulsory authority of search warrants, without concern for the validity of the consent they were seeking. Not surprisingly, given this finding, the trial judge expressed concern about the “apparent cavalier attitude” of the police in obtaining passwords and noted that this “is a serious matter which needs to be addressed by the police service.”
[27] Yet, without mentioning these findings when assessing the seriousness of the police conduct, she concluded that “[t]he section 8 breach in relation to the Dell was … minimal.” Her finding that the breach was minimal is entirely incompatible with her characterization of the offending police conduct as systemic…
[28] The appeal Crown sought to defend the trial judge’s characterization of the seriousness of the s. 8 breach as minimal by noting that the police did not need the password to access the Dell computer, thereby reducing the seriousness of the privacy breach. Even if this was her thinking, it was in error. The fact that evidence was discoverable without a breach is relevant and potentially important to the second Grant factor – the impact of the breach on the Charter-protected interests of the accused – but has nothing to do with the seriousness of the police misconduct. The seriousness of the breach is an evaluation of the mode that was used for the purpose of acquiring the evidence, a consideration entirely unaffected by the availability of alternative modes of discovering the evidence. Moreover, it is illogical to think that discoverability in the instant case somehow lessens the seriousness of a systemic course of Charter violations over multiple cases.
[29] I am therefore satisfied that the trial judge erred in principle in evaluating the seriousness of the breaches without considering the systemic nature of the violations, and by finding that the breach relating to the Dell computer was of minimal seriousness.
SHOULD THE BALANCE OF THE EVIDENCE BE EXCLUDED?
[34] Given that the trial judge erred in legal principle in her s. 24(2) analysis, I must undertake the s. 24(2) analysis afresh….
…the trial Crown consented to the exclusion of the contents of Mr. O’Brien’s iPhone at trial, and the appeal Crown has not asked for reconsideration of that determination. I will therefore refrain from commenting on how the Grant factors bear on the admission of the contents of Mr. O’Brien’s iPhone and will confine my comments on the effects of each factor on the admission of evidence that is at issue on this appeal, namely the contents of the Dell computer, the USB thumb drive, and the photographs taken during the search of the basement area of Mr. O’Brien’s home.
[35] For the following reasons, I would exclude the evidence extracted from the Dell computer but would not exclude the USB thumb drive. Nor would I exclude the photographs of the basement the police took during the search.
The Seriousness of the Breaches
[36] In my view, on the factual findings made by the trial judge, the s. 8 Charter breaches that occurred when Mr. O’Brien was asked to provide the passwords to his electronic devices were at the most serious end of the spectrum. Those breaches can only be described as wilful, given the trial judge’s finding that the police, aware of the heightened expectation of privacy that Mr. O’Brien had in his electronic devices, decided to seek the passwords without concern for obtaining his valid consent and despite knowing what valid consent entails. These “cavalier” and deliberate s. 8 violations were significantly aggravated by their systemic character. The trial judge found that this was routine behaviour and recognized that it is a serious matter that needs to be addressed.
[37] I accept the trial judge’s conclusion that the s. 9 breach was of minimal seriousness. There is no basis on the evidence for inferring that the police intentionally set out to detain Mr. O’Brien or acted negligently in doing so….
[38] I cannot share the trial judge’s conclusion that the s. 10(b) breach was of minimal seriousness. As the appeal Crown conceded before us, not only did the police not advise Mr. O’Brien of his right to counsel but they used him as a source of self-incriminating evidence before he had a reasonable opportunity to consult counsel, a breach the appeal Crown recognizes to be serious.
[39] Moreover, the ss. 9 and 10(b) breaches, along with the s. 8 breaches, were part of a larger pattern of Charter violations, which enhances the case for exclusion: R. v. Chaisson, 2006 SCC 11, [2006] 1 S.C.R. 415; R. v. Cote, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 81.
The Impact of the Breaches
[42] The impact of the s. 8 Charter breach relating to the search of the iPhone was considerable. In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 2, Fish J. commented that “[i]t is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search of a personal computer” given the broad spectrum of personal information that personal computing devices, including cellphones, contain. The police had a lawful warrant to seize the iPhones, but on the evidence before the trial judge, they effectively required the password to Mr. O’Brien’s iPhone to access its contents. The s. 8 breach in securing the password to Mr. O’Brien’s iPhone therefore had a significant impact on his Charter-protected interests.
[43] In contrast, the s. 8 breach relating to the Dell computer had little impact on Mr. O’Brien’s Charter-protected interests. The discoverability doctrine, relied upon by the Crown, is not needed to blunt the impact of the s. 8 breach relating to the Dell computer password because of the trial judge’s finding that the password provided by Mr. O’Brien in response to police requests was, in fact, not used to gain access to its contents. Moreover, the police had a valid warrant to view the contents. Apart from the privacy interests inherent in the password itself, the s. 8 violation had no impact on Mr. O’Brien’s Charter-protected interests relating to the Dell computer.
[44] Similarly, the s. 8 violations had no discernible impact on Mr. O’Brien’s privacy interest in the USB thumb drive, which was not password protected,…
[45] The trial judge found the impact of the s. 9 violation on Mr. O’Brien’s Charter-protected interests was lessened because the police were firm but not verbally or physically abusive or threatening. I agree. The duration of the unconstitutional detention was also brief and occurred within the relative comfort of Mr. O’Brien’s home, as opposed to a police vehicle or cell.
[46] In contrast, the s. 10(b) breach was impactful. Not only was Mr. O’Brien not advised of, or provided with, the right to counsel when detained, the police conscripted him as a source of information that could be used against him in his own investigation, without first providing him a reasonable opportunity to consult counsel.
[48] First, even where apparent legal options may be limited, such as where breath demands have been made in alcohol-driving cases that must be complied with, this does not lessen the impact of a s. 10(b) breach. Neither the right to consult counsel or its importance is contingent on the prospect that the advice will have a significant impact in ameliorating the legal peril the accused is facing. In any event, Mr. O’Brien provided his passwords because he felt compelled to do so. Had he received legal advice he may have discovered that he was not required to furnish them.
[49] In addition, the right to counsel serves a range of interests that go beyond the receipt of substantive legal advice, including providing a “lifeline to the outside world” (R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561 (C.A.), at para. 105), educating the subject about the “procedures brought to bear”, such as bail release, and ensuring that the subject is not entirely at the mercy of the police while detained” (R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135 (C.A.), at para. 45). Mr. O’Brien did not enjoy these benefits because of the s. 10(b) breach.
[50] The primary impact of the s. 10(b) breach, however, arises from the fact that Mr. O’Brien was conscripted to assist in the investigation against him by providing his passwords, without having had a reasonable opportunity to consult counsel. As I have explained, the police wanted the password as a means of gaining access to incriminating information. By asking Mr. O’Brien to provide that password they were seeking self-incriminating information from him. The indignity of being conscripted to assist in one’s own incrimination in this way, in violation of s. 10(b) of the Charter, is not an insignificant deprivation of Mr. O’Brien’s Charter-protected interests, even in the absence of a causal connection between that breach and the evidence sought to be admitted.
[51] In all of the circumstances, the impact of the s. 10(b) breach was moderate, arguably even serious.
[56] In these circumstances it is my view that the third Grant factor – society’s interest in the adjudication of the case – favours admissibility of the contents of the Dell computer, but not heavily so, provided the USB thumb drive and photos are not excluded. In contrast, exclusion of all of this evidence would gut the Crown’s case and damage the repute of the administration of justice.
Balancing
[57] After balancing the three Grant factors in all the circumstances I am persuaded that the admission of the contents of the Dell computer would bring the administration of justice into disrepute and must be excluded.
[58] I would exclude the Dell computer from evidence primarily because of the seriousness of the ss. 8 and 10(b) violations relating to the conscription of Mr. O’Brien to provide his passwords. As the majority reaffirmed in Lafrance at para. 90, “while the first two [Grant] lines of inquiry typically work in tandem it is not necessary that both of them support exclusion in order for a court to determine that admission would bring the administration of justice into disrepute”. The seriousness of the violations makes exclusion of the Dell computer appropriate, even though I have made more modest findings relating to the impact of the breaches on Mr. O’Brien’s Charter-protected interests.
[61] As indicated, I do not arrive at the same outcome with respect to the USB thumb drive and the photographs. The ss. 8 and 10(b) Charter violations that occurred when the police secured Mr. O’Brien’s passwords related to the investigation of the electronic devices, not this evidence. In my view, this reduces the need to exclude this evidence, notwithstanding the seriousness of the s. 8 and s. 10(b) violations, and the impact of the breaches. It is well established what even where there is a temporal and contextual link between breaches and the discovery of evidence, the absence of a causal connection is a factor that may reduce the need to exclude evidence: Strachan, at para. 47; Keshavarz, at paras. 112-16; Desilva, at paras. 87, 97. I find that it does so in the circumstances of this case. The exclusion of the contents of the Dell computer, which have a more compelling contextual link to the breaches, will adequately signal that the Charter breaches cannot be condoned and that Charter rights matter.
CONCLUSION
[64] I would allow Mr. O’Brien’s appeal since the trial judge erred in principle in her s. 24(2) decision. Considering the s. 24(2) issue anew, I would exclude the contents of the Dell computer but not the USB thumb drive and photographs. I would therefore set aside the conviction and order a new trial at which the contents of the Dell computer would not be admissible.
R v Brooks, 2023 BCCA 121
[March 17, 2023] Similar Fact Evidence: What Similarity is Sufficient for Non-ID Cases? [Bennett J.A. with Griffin and Grauer JJ.A. concurring]
AUTHOR’S NOTE: Crown applications for use of similar fact evidence must not be “credibility”, “narrative” or “nature of relationship” gateways to introduction of propensity evidence about uncharged similar facts. Where the acts themselves are different in the details of execution, the inevitable conclusion is that this is precisely what the evidence is meant to do for the Crown’s case. Here, an x-ray technician was charged with touching his patients inappropriately, but the nature of the touching was significantly different as between the charged offences and the prior alleged similar act.
Reasons for Judgment of the Honourable Madam Justice Bennett:
[1] Allen James Brooks worked as an X-ray technician at a hospital in Maple Ridge, B.C. between 1990 and 2016. He was charged with sexually assaulting three patients while performing X-rays at the hospital: F.B. on November 15, 1990, J.B. on November 1, 1997, and P.O. on July 8, 2001. A fourth woman, A.A., was permitted to give similar fact evidence that Mr. Brooks sexually assaulted her on November 14, 1990. Charges were laid in November 2017. Mr. Brooks was convicted by a provincial court judge of the charges in relation to F.B. and J.B. and acquitted of the charge relating to P.O.
[2] In my view, the judge erred in admitting the evidence of A.A. as similar fact evidence. I would allow the appeal and order a new trial.
Issue #1: Similar fact evidence
Legal framework
[38] In R. v. Schneider, 2022 SCC 34 at para. 36, the Court refined the three-part test judges are to apply regarding the admission of evidence: (a) whether the evidence is relevant; (b) whether it is subject to an exclusionary rule; and (c) whether to exercise their discretion to exclude the evidence.
A. Relevance
[39] The first step is ascertaining relevance. Relevance is determined “by asking whether, in light of all the other evidence, the at-issue evidence logically tends to make a fact in issue more or less likely. This standard applies to all evidence in criminal trials” (Schneider at para. 45). The determination of relevance is a question of law and reviewable on a correctness standard (Schneider at para. 39).
[40] Relevance is determined by applying logic and human experience. The threshold for relevance is low and judges can admit evidence that has modest probative value (Schneider at para. 39).
[41] At the first stage of the analysis, the question is simply whether the evidence is relevant to a fact in issue. The issue here was whether the allegations made by the complainants were true, and that turned on the credibility and reliability of F.B., J.B., and P.O.
[42] The law relating to similar fact evidence tends to commence with the second and third tests in the Schneider framework, in that relevance is often discussed within the probative value analysis of the evidence. In Schneider, the weighing of the probative value and the prejudicial effect is the third step of the test. For example, in R. v. Handy, 2002 SCC 56 at paras. 52 and 54, the Court affirmed that the test is as stated by McLachlin J. (as she then was) in R. v. B. (C.R.), [1990] 1 S.C.R. 717 at p. 732, and summarized it as follows:
[55] Similar fact evidence is thus presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.
[43] Evidence of prior conduct is generally inadmissible if it goes solely to disposition (Handy at para. 50, citing B. (C.R.) (at pp. 734–735)).
[46] To assess relevance at the first stage, it is simply a question of examining if the evidence (in the absence of an exclusionary rule) would be relevant to a fact in issue. The “degree of relevance” is weighed at the third stage to take into account the exclusionary rule.
B. Exclusionary rule
[47] Needless to say, the evidence is subject to an exclusionary rule. Evidence of discreditable conduct outside the confines of a charge is presumptively inadmissible. The evidence is inadmissible because an accused “has only to answer to the specific charge contained in the indictment” (Handy at para. 43, quoting Leblanc v. R., [1977] 1 S.C.R. 339 at p. 345). The evidence of disposition or propensity is “exceptionally admissible” (Handy at para. 51).
[48] In Handy, the Court summarized the general exclusionary rule as follows:
[72] Proof of general disposition is a prohibited purpose. Bad character is not an offence known to the law. Discreditable disposition or character evidence, at large, creates nothing but “moral prejudice” and the Crown is not entitled to ease its burden by stigmatizing the accused as a bad person. The defence of “innocent association” in B. (F.F.) was simply another way of expressing the denial by an accused of an element of the offence. The evidence of his prior discreditable conduct of a distinctive and particular nature, was considered to be strongly probative of specific issues in the case. Thus read, B. (F.F.) is quite consistent with B. (C.R.), and should not be interpreted as a rival “two-step” variant of the test.
[Emphasis in original.]
[49] The issue of whether evidence falls within an exception from the general exclusionary rule is a question of law that is reviewed on a correctness standard (Schneider at para. 58).
C. Probative value versus prejudicial effect
[51] Evidence that is presumptively inadmissible may be exceptionally admissible when the probative value of the evidence outweighs its prejudicial effect. The probative value of the evidence in relation to the issue in question must be so high that it displaces the heavy prejudice that will inevitably inure to the accused where the evidence of prior immoral or illegal acts is presented to the jury (Handy at para. 52, quoting B. (C.R.) at p. 732).
Probative value
[52] In assessing the probative value, the judge must consider the degree of relevance to the facts in issue and the strength of the inference that can be drawn (Handy at para. 26, quoting R. v. Robertson, [1987] 1 S.C.R. 918 at p. 943).
[53] The value of the evidence must be assessed in relation to the issue to which the evidence is said to be relevant (Handy at para. 69, quoting B. (C.R.) at p. 732). The issue must be something beyond the general disposition of the accused. As noted in Handy at para. 72, bad character is not an offence known to law. The identification of the issue is essential to the weighing process. “Probative value cannot be assessed in the abstract. The utility of the evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact” (Handy at para. 73).
[54] In Handy, the Court noted:
[74] The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated. It is therefore incumbent on the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate. If the issue has ceased to be in dispute, as for example when the fact is admitted by the accused, then the evidence is irrelevant and it must be excluded [citations omitted]. The relative importance of the issue in the particular trial may also have a bearing on the weighing up of factors for and against admissibility. Similar fact evidence that is virtually conclusive of a minor issue may still be excluded for reasons of overall prejudice.
[55] The assessment involved in determining the cogency of the probative value of the evidence is to assess whether the evidence is strong enough to be capable of properly raising in the eyes of the jury the inferences contended by the Crown (Handy at para. 102).
Prejudicial effect
[57] In assessing the prejudicial effect, the judge must assess whether the admission of the evidence will result in a jury becoming confused by the multiplicity of incidents, such that they put more weight than is justified on the similar act evidence (“reasoning prejudice”) or by convicting the accused based on nothing more than bad personhood (“moral prejudice”) (R. v. Shearing, 2002 SCC 58 at para. 64, citing Handy at para. 31).
[58] The judge should also consider the effect of admitting the evidence on all aspects of trial fairness, including “the practicalities of its presentation, the fairness to the parties and to witnesses, and the potentially distorting effect the evidence can have on the outcome of the case” (R. v. J.J., 2022 SCC 28 at para. 130, citing D.M. Paciocco, P. Paciocco and L. Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020) at p. 47).
[61] The judge provided additional oral reasons on the admissibility of A.A.’s evidence after hearing all of the evidence, save that of Mr. Brooks. In those reasons, he set out the issues to which the evidence is relevant: proof of the actus reus, rebuttal of an allegation of collusion (which had not been raised when the evidence was admitted), rebuttal of a defence of accident (also noted as innocent association and lack of intent), and to support the credibility of the complainants (Admissibility Ruling at para. 12).
[66] In concluding that the evidence was admissible, the judge said that the question of whether the evidence of A.A. was admissible to all counts or just to F.B. would be determined at the end of the trial (Admissibility Ruling at para. 26), overlooking that he had already concluded that the evidence was admissible in relation to all counts.
[67] The judge made no reference to “dissimilarities” in the first two sets of reasons.
[69] The judge then appeared to revisit the issue of the similar fact evidence and supplemented his reasons previously given….
[71] At paras. 38–39, the judge set out what he saw as the similarities and dissimilarities in relation to the evidence:
[38] With respect to similarities and dissimilarities of Ms. AA’s complaint, compared with those of Ms. FB, Ms. JB and Ms. PO, each involve Mr. Brooks as the x-ray technician being alone in the x-ray room with a woman who requires an x-ray. Each of the four women testified to being clothed in hospital gowns [although he later found P.O. was likely not wearing a hospital gown]. Each of the four women testified to sexual assaults against them by Mr. Brooks. The nature of the sexual assaults differed in that Ms. FB and Ms. PO testified to Mr. Brooks inserting his fingers or hand in their vagina. Ms. PO testified to him also fondling her breasts while she was lying on a hospital bed or x-ray table. Ms. AA testified the sexual assault in her case involved Mr. Brooks standing behind her and placing his hands on her skin under the hospital gown and cupping and lifting her breasts on two occasions during the course of the X-ray process. Ms. JB testified to Mr. Brooks touching the sports bra in the front and moving it exposing at least part of her breasts, as well as moving her underwear exposing her [genitalia]. None of the alleged sexual assaults matched each other with precision, but there is a unifying thread of sexual misconduct that links all four instances. While not relevant to the allegations of Ms. AA, the three charged allegations each involved the complainants being in some manner under the influence of intoxicating substances. Ms. FB was under the influence of alcohol, Ms. JB under the influence of cocaine, alcohol and either Ativan or Valium and Ms. PO under the influence of pain medication administered to her by medical personnel, together with alcohol from the baby shower.
[39] A significant dissimilarity relates to the proximity in time of the various similar acts. While this is not an issue with respect to the incidents involving Ms. FB and Ms. AA, as their events occurred within hours of each other in 1990, there is then a seven-year gap between those events and that of Ms. JB (1997). And then there is a further four year gap between the event involving Ms. JB and Ms. PO (2001). These latter gaps are significant periods of time, particularly if one considers the likely number of x-rays Mr. Brooks would have performed over those years. The evidence of Ms. Oxley suggested a figure of between 5 and 30 a shift.
[72] I note, parenthetically, that the description of “cupping” A.A.’s breasts is not found in her evidence, but in a description of her evidence provided by the Crown in submissions.
[73] In concluding that the evidence of A.A. and the cross-count evidence was admissible, the judge found:
[42] I conclude that there are significant similarities of the circumstances of Ms. AA and the three charged mattes that is probative to the issues identified by Crown – proof of the actus reus of the offence, to undercut any suggestion of collusion, to undercut any suggestion of accident, and to support the credibility of the complainants in the three charged matters. While there are differences in each of the circumstances, none of them undermine the broader theme of sexual touching by Mr. Brooks occurring in the context of women being alone with him during an x-ray. The similar fact evidence meets the low bar necessary of being reasonably capable of belief. But it is important to note that at this stage I have not made findings about the ultimate credibility and reliability of the evidence. That awaits until my consideration of the evidence as a whole. That is when I will deal with frailties of the evidence as presented, for instance, through cross examination.
[43] There is clearly prejudice to Mr. Brooks in admitting to the similar fact evidence of Ms. AA, and allowing cross-count application of similar fact evidence. The prejudice is particularly acute when the act charged is considered a morally repugnant offence such as sexual assault by a health care professional on patients. But it is well accepted that the twin dangers of moral and reasoning prejudice are significantly lessened when the trial is conducted by a judge alone. I conclude that the evidence of Ms. AA and the cross-count evidence has significant probative value and it is not outweighed by the prejudicial effect on Mr. Brooks. The evidence is directly tied to proving the actus reus of sexual assaults, undercuts suggestions of accident and is useful in assessing credibility. I must of course be mindful of the obligations of R. v. WD when assessing credibility in light of the exculpatory evidence of Mr. Brooks when he testified. I find that the evidence of Ms. AA, and the evidence on each count, is admissible as similar fact evidence.
[44] While the cross-examination of Ms. JB, Mr. JS and Ms. PO canvassed the possibility of collusion as Mr. JS and Ms. PO are “Facebook friends”, there was no credible suggestion of collusion and, indeed, counsel did not raise it in his written closing submissions.
[Emphasis added]
[74] Thus, the judge appears to have excluded collusion as a relevant factor in terms of the similar fact evidence.
[75] Absent an exclusionary rule, the evidence of A.A. would be relevant to support the evidence of the complainants in a general way. On the evidence before the judge at the time of his first ruling, there was a vague reference to collusion. Part of the difficulty is that the judge admitted the evidence without hearing it on a voir dire and without fully understanding the issues that would in fact be engaged in the trial. The judge could not conduct a proper analysis of whether the evidence had probative value at the point he was asked to make his ruling.
Analysis of the admissibility of A.A.’s evidence
[76] In my view, the judge erred in admitting the evidence of A.A. as similar fact evidence. A person is not required to defend a case with which he is not charged except in exceptional circumstances.
A. Proof of the actus reus
[77] Here, the judge concluded that the evidence of A.A. was admissible to establish the actus reus of the charged offences, however, the actus reus of the event involving A.A. was never in issue. Mr. Brooks did not deny touching A.A. as alleged. He acknowledged that he touched her breasts on the sides with his hands, incidental to taking the X-ray. He said he was trained in a certain way to align someone in front of the bucky when performing a chest X-ray. He said at the time “Excuse my hands” or “Please excuse my touch”. When the incident was drawn to his attention, he wrote a letter of apology. He also said that the training was changed because of this incident. A.A. was completely sober when the incident occurred. I note that the judge misstated the nature of A.A.’s evidence when he referred to
Mr. Brooks “grabbing” her breasts and “cupping” her breasts. A.A. said he “lifted” her breasts. In my view, that is a distinction with a difference given the context of the incident.
[78] The circumstances of the incident with A.A. bear almost no relation to the incidents described by the other three complainants. The other complainants were all affected by alcohol or drugs to varying degrees, making them vulnerable. Each of the complainants alleged touching of or near the vaginal area with various degrees of intrusion. P.O. and J.B. alleged touching near or of the breasts. All were lying down when the touching occurred. The touching alleged by the three complainants clearly had no relation to the taking of an X-ray. Mr. Brooks’ defence of those allegations was a complete denial. The incident in relation to A.A. does not support the inference that the actus reus in relation to F.B., J.B., and P.O. occurred. I say this bearing in mind the closeness in time with respect to F.B. and A.A. [Emphasis by PJM]
B. Defence of accident
[79] …A.A.’s evidence had no relevance to a defence of accident. Accidental touching was raised in relation to her account; however, it was not raised with respect to the charged offences.
C. Collusion
[80] The judge appears to have acknowledged that collusion was not a relevant matter by the end of the trial. He was correct in that finding. There was no evidence to support a finding of collusion among the complainants.
D. Supporting the credibility of the complainants
[83] That leaves the issue of supporting the credibility of the complainants. In Handy, the Court said the following on the issue of the credibility of a witness:
[115] The Crown says the issue generally is “the credibility of the complainant” and more specifically “that the accused has a strong disposition to do the very act alleged in the charges against him”, but this requires some refinement. Care must be taken not to allow too broad a gateway for the admission of propensity evidence or, as it is sometimes put, to allow it to bear too much of the burden of the Crown’s case (Sopinka, Lederman and Bryant, supra, at § 11.26). Credibility is an issue that pervades most trials, and at its broadest may amount to a decision on guilt or innocence.
[116] Anything that blackens the character of an accused may, as a by-product, enhance the credibility of a complainant. Identification of credibility as the “issue in question” may, unless circumscribed, risk the admission of evidence of nothing more than general disposition (“bad personhood”).
[84] General issues such as “credibility”, “narrative”, or “nature of the relationship” are not “portals” to propensity evidence about uncharged similar facts (R. v. M.R.S., 2020 ONCA 667 at para. 72, citing R. v. Gareau, 2016 NSCA 75 at para. 51).
[85] In my view, the evidence of A.A. was uncharged propensity evidence that was not probative of a fact in issue in this case. Admission solely to support the evidence of the complainants was not a proper basis to admit the evidence, as the only relevance would be that Mr. Brooks was the “kind of person” who committed the acts in question.
E. Conclusion on the admissibility of A.A.’s evidence
[86] In my opinion, the judge erred in law in admitting the evidence of A.A. as similar fact evidence. As the judge relied heavily on the evidence of A.A. to find both F.B. and J.B. credible, a new trial is necessitated.
[87] In Handy, the Court concluded at para. 136 that if the evidence is not “properly capable of supporting the inferences sought by the Crown, the analysis generally need go no further”, as the evidence has no probative value that would bring it within the exception. It is therefore not necessary to consider the prejudicial effect of the evidence.
Conclusion
[100] In my opinion, the judge erred in admitting the evidence of A.A. as similar fact evidence. The evidence played a significant role in the assessment of the credibility of F.B. and J.B. Thus, a new trial must be ordered.
R v Nagy, 2023 ONCA 184
[March 20, 2023] After the Fact Conduct Instructions: Need for Express Statements about Possible Inferences that Could be Drawn from Conduct [Reasons by Pardu J.A. with Fairburn A.C.J.O. and Doherty J.A. concurring]
AUTHOR’S NOTE: In murder trials with multiple accused, the law creates several complexities through the interactions between the required mens rea and party liability. When after the fact conduct evidence is layered on top of these things, instructions to the jury have to be crystal clear about what inferences they can draw from the after the fact conduct in the particular case. There are several limitations and it is important that the jury be instructed in a way that does not allow them to misuse the after the fact conduct evidence to prove a higher level of mens rea than it can support.
[1] Bradley MacGarvie and Thomas Nagy both appeal from their convictions for the first- and second-degree murder of Alexander Fraser, on or about December 26, 2014. Mr. MacGarvie was convicted of first-degree murder and Mr. Nagy was convicted of second-degree murder.
Factual background leading to the homicide
[2] Mr. MacGarvie, along with others, administered a severe beating to Mr. Fraser on November 13, 2014, approximately six weeks before the homicide. Mr. MacGarvie had lured Mr. Fraser to Mr. MacGarvie’s house. There was evidence that Mr. MacGarvie, Mr. Nagy, and two others punched and kicked Mr. Fraser, leaving him with injuries that led him to seek treatment at a hospital.
[3] Mr. Fraser enlisted the help of friends to come to the Niagara area to confront Mr. MacGarvie in turn. By the evening of December 25, 2014, Mr. MacGarvie was receiving threatening messages. He had been told that Mr. Fraser was arranging for friends to come after him. Mr. MacGarvie devised a plan to have Carol Acker and Victoria Harvey lure Mr. Fraser to an isolated area, so that Mr. MacGarvie could confront him. Mr. MacGarvie asked Mr. Nagy to accompany him. Mr. MacGarvie, Mr. Nagy, Ms. Acker, and Ms. Harvey all left Mr. MacGarvie’s home in a truck driven by Duran Wilson. Ms. Acker and Ms. Harvey were dropped off at a motel to await pickup from Mr. Fraser, as had been arranged.
[4] On December 26, 2014, Mr. Fraser picked up Ms. Acker and Ms. Harvey at the motel. After dropping off Ms. Acker at a Niagara Parkway address for a supposed escort service outcall, Mr. Fraser and Ms. Harvey went to the chosen isolated area, just off the parkway. When Mr. Fraser got out of the car, Mr. MacGarvie, who was awaiting his arrival with Mr. Nagy, took him to the ground and held him down.
[5] There was evidence that Mr. MacGarvie and Mr. Nagy blindfolded Mr. Fraser and pushed him into the backseat of the truck. According to Ms. Harvey, Mr. Fraser’s hands were behind his back, and he had duct tape around his eyes and head, as well as over his mouth. Mr. MacGarvie was yelling at Mr. Fraser in the backseat of the truck, and Mr. Fraser was being hit. Mr. MacGarvie then doused Mr. Fraser’s car with oil and set it on fire.
[6] Mr. Wilson drove Mr. Nagy, Mr. MacGarvie and Mr. Fraser to another area, near some train tracks. Mr. MacGarvie and Mr. Nagy got out of the truck, holding Mr. Fraser, who was standing with his hands behind his back. Mr. MacGarvie told Mr. Wilson to come back in fifteen minutes. Mr. Nagy argued with Mr. MacGarvie, wanting nothing to do with what was happening, and started to walk away from the area.
[7] Mr. MacGarvie saw a path in the woods and told Mr. Fraser to walk towards the path. Mr. MacGarvie testified at trial that he yelled at Mr. Fraser and demanded to know who was coming after him. He said that Mr. Fraser confirmed to him that he had organized an attack on Mr. MacGarvie and, according to Mr. MacGarvie’s evidence, Mr. Fraser said that he hoped the people he had recruited would kill Mr. MacGarvie and his family. According to Mr. MacGarvie, this prompted him to attack Mr. Fraser. Mr. MacGarvie testified that he had not intended to kill Mr. Fraser, but that he did so unintentionally when he exploded in response to those words.
[8] Mr. MacGarvie thought he had killed Mr. Fraser with this beating. He wanted to hide the body, but he had difficulty lifting it. He used zip ties, which he had in his jacket, to bind Mr. Fraser’s wrists and ankles, so that he could lift and move his body. He dragged Mr. Fraser’s body to a nearby bridge and rolled it into the water. Mr. MacGarvie then went back to the road to wait for Mr. Wilson to pick him and Mr. Nagy up. Mr. Fraser’s body was found in a channel near the Niagara River in March 2015.
[9] It is worth noting that, although Mr. MacGarvie testified that he thought that the beating had killed Mr. Fraser, the pathologist could not determine the precise cause of death. It was not clear whether Mr. Fraser died as a result of the beating or by drowning.
[10] …after Mr. MacGarvie testified, and acknowledged that he was guilty of manslaughter, the substantial issues for the jury to determine were whether the Crown had proven that Mr. MacGarvie had the intent required for murder and, if so, whether it was first-degree murder,…
[11] Mr. Nagy did not testify and, therefore, everything about his participation in the events was in issue.
Conduct after the killing
[14] There was evidence of steps taken, by each Mr. MacGarvie and Mr. Nagy, following the beating:
- MacGarvie testified that he thought the beating had killed Mr. Fraser. He bound Mr. Fraser’s wrists and ankles tightly with zip ties and dropped him in the river, all within 15 minutes of being dropped off in the woods by Mr. Wilson. He made no effort to get medical assistance for Mr. Fraser and there was no hesitation in his exertions to dispose of the body.
- After disposing of Mr. Fraser’s body, Mr. MacGarvie and Mr. Nagy burned their clothing.
- Mr. MacGarvie threatened to kill Ms. Harvey and Ms. Acker if they told anyone what had happened, stating that “he would make another person disappear rather than go to jail for 25 to life”.
- Mr. MacGarvie and Mr. Nagy collected Ms. Acker’s and Ms. Harvey’s cellphone and tablet.
- Mr. MacGarvie asked witnesses to provide him with a false alibi and divert suspicion to another person.
- Mr. MacGarvie attempted to flee arrest.
- In the holding cells, during a court appearance on February 4, 2015, Mr. MacGarvie tried to persuade another female detainee, brought from the Vanier Institution, to beat up Ms. Harvey, who was also housed in the same institution.
[16] On appeal, Mr. MacGarvie submits that the after-the-fact conduct evidence was no longer relevant by the end of the trial. While it may have been initially relevant to determine whether Mr. MacGarvie had played any role in the killing, once Mr. MacGarvie admitted to the killing, it no longer had any evidentiary value. He submits that the trial judge ought to have instructed the jury that it had no probative value, and that they should not consider it in assessing Mr. MacGarvie’s level of culpability. Mr. MacGarvie admitted to most of the conduct but gave explanations for why he had acted as he did: to avoid being caught for an unintentional killing.
[17] The trial judge did not explain to the jury how the after-the-fact conduct evidence was relevant. He left it to the jury, in general terms, that the jury could use the evidence to determine whether the Crown had proven Mr. MacGarvie’s or Mr. Nagy’s guilt beyond a reasonable doubt:
…You may use this evidence about what Mr. MacGarvie is alleged to have said and done, as I will direct you, along with all the other evidence as to the essential elements in the case, in deciding whether the Crown has proved his guilt beyond a reasonable doubt. Likewise, you may use the evidence about what Mr. Nagy is alleged to have said and done, as I will direct you, along with all the other evidence as to the essential elements in the case, in deciding whether the Crown has proved his guilt beyond a reasonable doubt. However, you must not infer Bradley MacGarvie’s guilt or Thomas Nagy’s guilt from that evidence unless, when you consider it along with all the other evidence as to the essential elements to be proven, you are satisfied that it is consistent with his guilt and that it is inconsistent with any other reasonable conclusion. Keep in mind that evidence of after-the-fact conduct has only an indirect bearing on the issue of Bradley MacGarvie’s or Thomas Nagy’s guilt. You must be careful about inferring guilt from this evidence because there might be other explanations for the conduct. You may use evidence of after-the-fact conduct to support an inference of guilt only if you have rejected any other explanation for the conduct.
[18] In R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, Moldaver J., writing for the majority, noted that after-the-fact conduct may be relevant to the mental state required for a charged crime. For instance, in Calnen, the accused said that the victim died as a result of a fall down the stairs. After her death, he disposed of her body by burning it. This conduct was relevant, not only to rebut the allegation of accident and to establish causation, but also to determine whether he had the intent for second-degree murder.
[20] It is important for trial judges to expressly state the possible inferences which might be drawn from after-the-fact conduct and explain the possible chain of reasoning. As noted in Calnen, at paras. 113 and 115:
In addition to being aware of the general principles, it is important for counsel and trial judges to specifically define the issue, purpose, and use for which such evidence is tendered and to articulate the reasonable and rational inferences which might be drawn from it. This often requires counsel and the court to expressly set out the chain of reasoning that supports the relevance and materiality of such evidence for its intended use. Evidence is to be used only for the particular purpose for which it was admitted. When evidence is admissible for one purpose, but not for another, the finder of fact, whether judge or jury, needs to be mindful of and respectful of its permissible and impermissible uses. In such cases, a specific instruction to a jury that certain evidence has a limited use or is of no probative value on a particular issue is required.
…
While the focus should be on the intended use of the evidence when determining admissibility and crafting jury instructions, it is also important to expressly state the inferences available to the jury. In Rodgerson, this Court made clear that judicial expertise may be required in order to “present the evidence and the available inferences to the jury in a comprehensible form” ….
[21] Here, the conduct immediately after the final beating was relevant to Mr. MacGarvie’s mental state and whether he had the intent required for murder. Burning clothes to destroy evidence and seizing electronic devices, which might contain incriminating evidence, for example, could be viewed as characteristic of a methodical, clear-thinking mind. Possession of zip ties, and their use to bind the victim’s wrists and ankles, could be evidence of the execution of a plan. The immediate disposal of the body, without seeking help or medical assistance, could be more consistent with an intentional killing than an unintentional one. A jury would, of course, have to consider other possible inferences, including Mr. MacGarvie’s evidence that he engaged in these behaviours to avoid being caught for an unintentional killing.
[22] The conduct more remote in time, such as Mr. MacGarvie’s flight to avoid arrest and his attempt to have Ms. Harvey beaten up, had significantly less probative value on the issue of his mental state at the time of the final beating and whether the killing was planned and deliberate. It will be up to the new trial judge to assess whether this evidence should be admitted.
[23] Mr. Nagy’s participation in the events was in issue, as well. His conduct after the killing was relevant to the issue of whether he had participated in the attack on Mr. Fraser. If he had not done so, it is difficult to see why he would have burned the clothes he was wearing or seized the electronic devices from Ms. Harvey and Ms. Acker.
[24] However, in this case, the jury was left without any guidance as to the use of this evidence.
[26] Here, one cannot be left with any confidence that the jury understood the purposes for which the after-the-fact conduct evidence could be used. Absent such understanding, the risk of prejudicial use of the evidence was elevated. A jury might have leapt directly to a conclusion that, since the appellants acted as if they had done something wrong, they were guilty as charged, of first-degree murder in the case of Mr. MacGarvie, despite the trial judge’s general admonitions not to do so. To be fair to the trial judge, he did not have the benefit of Calnen when he charged the jury in 2017.
[28] While counsel failed to object to the charge on the issue of directions regarding after-the-fact conduct, this is not determinative. There is no basis to conclude that this was a tactical choice.
[29] The failure to give the jury guidance on this issue is sufficiently serious as to require a new trial for both Mr. MacGarvie and Mr. Nagy.
The error in defining the mental state for party liability for murder and the refusal to give the jury a decision tree
[47] It is common ground that the trial judge erred in part of his instructions on common unlawful purpose.
[48] He instructed the jury that Mr. Nagy had to know either that Mr. MacGarvie meant to cause Mr. Fraser’s death or that Mr. MacGarvie meant to cause Mr. Fraser bodily harm that was likely to cause death. He omitted the crucial words that Mr. Nagy must have known that Mr. MacGarvie meant to cause Mr. Fraser bodily harm that Mr. MacGarvie knew was likely to cause Mr. Fraser’s death:
[52] In this case, it was not obvious that Mr. Nagy had the intent for murder or knew that Mr. MacGarvie had the intent for murder. He appeared to have been asked to accompany Mr. MacGarvie after the latter had formulated the plan, and there was some evidence that he attempted to disassociate himself from Mr. MacGarvie’s actions. While the evidence strongly suggests that Mr. Nagy was a party to an assault and unlawful confinement, the issue of his intent and knowledge was an essential element of a finding of guilt of murder as a party to a common unlawful purpose. In similar circumstances, this court has not regarded correct instructions elsewhere in the charge as sufficient to eliminate the risk of jury confusion: see R. v. Mcintyre, 2012 ONCA 356, 95 C.R. (6th) 106; R. v. Zoldi, 2018 ONCA 384, 360 C.C.C. (3d) 476.
[53] This error, alone, also requires a new trial for Mr. Nagy.
Conclusion
[69] For the reasons expressed above, I would set aside the convictions and order a new trial for Mr. MacGarvie on first degree murder and for Mr. Nagy on second degree murder.
Search and Seizure
By David Schermbrucker, Randy Schwartz, Mabel Lai, & Nader Hasan
