This week’s top three summaries: R v Appleton, 2024 ONCA 329: third party #suspect, R v AB, 2024 ONCA 111: CI #privilege, and R v Burkhard, 2024 ONCA 353: prior #consistent stmts.
R v Appleton, 2024 ONCA 329
[May 2, 2024] Third Party Suspect: No Need for Application if Crown Tries to Exclude [Reasons by David M. Paciocco J.A. with B.W. Miller and J. George concurring]
AUTHOR’S NOTE: In this case, Justice Paciocco provides a thorough overview of the law regarding third-party suspect evidence, addressing aspects such as jury directions and the air of reality test for specific defences. A significant takeaway for the defence is that a formal third-party suspect application is unnecessary when the Crown introduces evidence to exclude someone as a potential suspect. The defence can immediately point to that individual as a possible suspect without needing the judge’s agreement through the air of reality test or a formal application. This allows the defence to argue a third party suspect was responsible for the offence directly during the trial.
OVERVIEW
[1] Early in the morning on February 9, 2016, Kiowa McComb and Sarcee McComb, who were brothers, were stabbed during a closing-time altercation outside of Gucci’s Bar and Grill (“Gucci’s”) on Jane St. in the City of Toronto where they had been drinking. Tragically, Kiowa succumbed to the horrific stab wounds he received, and Sarcee sustained life-threatening injuries.
[2] Andre Appleton, who had also been at Gucci’s immediately before the confrontation, was charged and tried before a jury of second-degree murder in Kiowa’s death, and of attempting to murder Sarcee. The Crown’s factual theory was that Mr. Appleton and another shorter Black man, referred to by the trial judge as the “shiny hoodie guy” (“SHG”), jointly attacked the McComb brothers leading to their injuries. The Crown’s primary legal theory was that Mr. Appleton was the stabber, and thereby guilty as the principal offender. It argued, in the alternative, that even if Mr. Appleton was not the stabber he was nonetheless a party and liable to conviction of the offences, either as a joint principal or by aiding and abetting the stabber.
[3] Mr. Appleton did not contest his involvement in the altercation but sought to defend the charges by arguing that the Crown had not proved that he did the stabbings or was legally complicit in them. He wanted to argue that the Crown case left a reasonable doubt whether another Gucci’s patron, Ibrahim Muhia, may have done the stabbings. In her charge to the jury, the trial judge directed the jury that evidence of Mr. Muhia’s involvement was irrelevant, preventing jurors from considering this theory. Mr. Appleton was convicted of second-degree murder in Kiowa’s death, and of aggravated assault in Sarcee’s stabbing.
[4] For the reasons that follow, it is my view that the trial judge erred in providing this direction relating to Mr. Muhia’s involvement. I would also accept a related ground of appeal addressing the manner in which the trial judge directed jurors about SHG’s involvement. I would therefore allow the appeal, quash the convictions, and order a retrial.
ANALYSIS
A. DID THE TRIAL JUDGE ERR IN INTRUCTING THE JURY THAT EVIDENCE ABOUT MR. MUHIA’S POTENTIAL INVOLVEMENT IN THE FIGHT WAS IRRELEVANT TO THEIR DELIBERATIONS?
Overview
[83] I am satisfied that the trial judge erred in instructing the jury that evidence relating to Mr. Muhia’s involvement in the stabbing is irrelevant. In the impugned direction she said:
It is relevant for you to consider whether the perpetrator might have been someone other than Mr. Appleton and whether this causes you to have a reasonable doubt. However, it is not appropriate for you to go off on a side issue as to whether in fact Mr. Muhia is guilty of the offence. That is not an issue for you to determine in this case. Therefore, issues such as gestures made by Mr. Muhia in the Gucci vestibule, whether he was or was not wiping blood off his shoes in front of the Royal Bank and the like, are irrelevant to your task.
[84] Relatedly, in summarizing the defence position in her charge the trial judge refused to include submissions that Mr. Appleton asked her to include about Mr. Iozzo’s initial identification of Mr. Muhia as having been involved in the fatal confrontation, and Mr. Muhia’s gestures from the Alcove. Then, in her jury charge the trial judge made no other reference to the prospect that Mr. Muhia could have been the stabber or the effect this possibility could have had on the outcome. When the charge is read as a whole, jurors could only have understood the impugned portions to mean that they were not to consider whether Mr. Muhia was the stabber or a participant in the fight.
[85]….During the trial three reasons were offered by the Crown for eliminating Mr. Muhia from consideration as a possible suspect: (1) Mr. Appleton’s trial counsel did not bring a third party suspect application; (2) Mr. Appleton’s trial counsel told the trial judge he was not bringing such an application; and (3) there was no air of reality to Mr. Muhia’s involvement, therefore the third party suspect rule cannot be met. At various points the trial judge expressed agreement with each of these submissions but made her decision to provide the jury charge reproduced in paragraph 83 above only after calling for and receiving argument on the air of reality issue. It is therefore likely that she gave the direction she did after concluding that the third party suspect defence lacked the requisite air of reality. Because of the lingering uncertainty I will assess whether any of these considerations support the trial judge’s decision. I am persuaded that they do not.
[86] As I will explain, no third party suspect application was required in the circumstances of this case. The function of a third party suspect application is to ascertain whether relevant evidence of the possible involvement of the alternative suspect raises a material issue in the case. No application was needed because Mr. Muhia’s potential role as the stabber had already been made a material issue in the case by the Crown when it presented evidence and argument to eliminate Mr. Muhia as the stabber to strengthen its claim that Mr. Appleton did the stabbing. In effect, the Crown position at trial and before us is that it could argue that Mr. Muhia was not the stabber, but Mr. Appleton could not suggest otherwise. This position is untenable.
[88] Finally, available evidence clearly satisfied the air of reality test. If the trial judge concluded otherwise, she was in error, either in the standard she applied or in its application. In my view, the submission that Mr. Muhia may have been involved in the altercation and committed the stabbing should have been left with the jury.
[89] I will unfold the trial judge’s consideration of the third party suspect defence leading to her ruling, and then explain more completely why it was wrong for the trial judge to give the direction she did.
Third Party Suspect Consideration
[90] The third party suspect issue was initially raised by the trial judge before the evidence was completed. After several Crown witnesses had testified, including Mr. Muhia, she asked defence counsel whether there was going to be an “alternate suspect application” (which I prefer to refer to as a “third party suspect application”). Defence counsel responded that, in his view, there wasn’t proof beyond a reasonable doubt that Mr. Appleton was the stabber. When pressed as to whether he was going to be suggesting that “it was a particular person” he replied, “[t]he evidence doesn’t quite get there. The evidence is there’s a reasonable doubt about who did it… [w]e can’t say Mr. Muhia did it, we can’t say [SHG] did it. It’s not gonna rise to that. But its gonna rise to, based on the eyewitness accounts, there’s a reasonable doubt”. When asked if he was going to be “pointing the finger at any particular person” he repeated, “No, the evidence doesn’t rise to that.”
[91] When the draft jury charges were subsequently being reviewed before counsels’ jury addresses were given, counsel for Mr. Appleton expressed the view that Mr. Muhia could have been involved in the fatal encounter, saying, “I don’t think it’s easy to eliminate Mr. Muhia from some role in the fighting”. He then said, “[Mr. Muhia’s] not inconsistent with being the shorter male.” The trial judge said, “[e]xcept he’s across the street with [Leila]”. Counsel disagreed with this comment, saying that this was not “crystal clear”. 5 Shortly after, he agreed with the trial judge’s suggestion that the defence was also advancing the theory that SHG (the person the Crown claimed to be the shorter man) could have done the stabbing.
[92] Before the closing addresses were given, the Crown made clear its own intention to argue that Mr. Muhia was not involved in the stabbing. In explaining its position, the Crown said that if the jury accepts its claim that Mr. Nur’s reaction signalled the start of the stabbing, Mr. Muhia could not have been the stabber because when he is coming out of Gucci’s Mr. Nur is “essentially already in the process of having that reaction”. The trial judge made no comment in response on the relevance of the Crown addressing Mr. Muhia’s potential involvement.
[94] In his subsequent jury address, Mr. Appleton’s counsel asked the jury to consider the possibility that Mr. Iozzo and Mr. Aiello were confusing SHG with Mr. Muhia when describing the parties to the fight. He pointed to the poor vantage point these witnesses had when they were watching the fatal confrontation, Mr. Muhia’s movements and opportunity as disclosed in images captured by the Alcove Camera, his gesturing from the Alcove with a motion to his neck, and the possibility he can be seen in the RBC video to be removing blood from his shoes.
[95] Mr. Appleton’s counsel also suggested based on Mr. Iozzo’s description of the “taller” assailant as 5’6” or 5’7”, that SHG could have been the taller of the two assailants that Mr. Iozzo believed he saw, thereby leaving the possibility that Mr. Muhia was the shorter of those two assailants.
[96] He submitted that the possibility of Mr. Muhia’s involvement in the fight is supported by Mr. Iozzo’s identification during his police interview of a photo of Mr. Muhia as the shorter man in the confrontation, and by Mr. Muhia’s acceptance of the possibility that he could have stabbed someone during the blackout period he no longer remembers. Counsel for Mr. Appleton said, “I’m not trying to jump on Mr. Muhia more than the evidence suggests.” He cast his submissions in terms of “reasonable doubt”.
[97] In listing its objections to Mr. Appleton’s closing comments during the postclosing address discussion, the Crown said, “There was the alternate suspect, Mr. Muhia”. The trial judge responded, “Ah, yes, the alternate suspect, that there was no notice of, and just bounced out there”, and she referred to it as a new defence “raised for the first time.” The Crown added, “Disregarding your Honour’s ruling”. The trial judge responded, “Yeah, there is a list.” The Crown asked for a strong correction. When the Crown said there was “[n]o air of reality to [the defence. Defence counsel] said, he wasn’t gonna do it”, the trial judge agreed, and added, “Didn’t put it to the witness when he was here testifying.”6
[99] In its submissions the Crown maintained that there was no air of reality to the third party suspect defence and submitted that the defence had conceded as much during an earlier colloquy into the issue. Mr. Appleton’s counsel responded, “[W]e didn’t say ‘There was no air of reality to there being a third party suspect’…I don’t view this really as a third party suspect. I view this as how we analyse the eyewitness evidence”. In his ensuing comments he said, “we didn’t say that Mr. Muhia had did it… [B]ut if we look at the evidence as a whole there’s a lot that puts Mr. Muhia in the fracas, in some respect.” When the trial judge confronted him with the fact that she had asked him about alternate suspects, he replied, “An alternate suspect, I understand, has to be dispositive… We’re not saying this person did it. We’re saying the Crown hasn’t proved Mr. Appleton did it on this eyewitness evidence.”7
[100] Despite receiving submissions on whether the third party suspect defence relating to Mr. Muhia had an air of reality the trial judge did not express or provide a ruling on that issue. All that can be said with certainty is that she had decided overnight that Mr. Appleton could not rely on this defence….
….That decision may have been based on the failure by the defence to bring a formal third party suspect application, or defence counsel’s acknowledgement that it would not be bringing an application, or on a conclusion that the third party suspect defence lacked an air of reality.
The Material Legal Principles
[101] The place to begin understanding the third party suspect rule is to recognize that it is not an affirmative defence, but instead, a denial that the Crown has proved one of the elements of a charged offence – identity – beyond a reasonable doubt. When a jury acquits on a third party suspect defence it is therefore doing no more than recognizing that the Crown has failed to prove the identity of the person who committed the offence: R. v. Ranglin, 2018 ONCA 1050, 370 C.C.C. (3d) 477, at paras. 59-60.
[102] In this important respect, a third party suspect defence is not like a “reverse onus defence”, such as the mental disorder, automatism, or extreme automatism defences, where the accused must put entirely new elements into issue and prove them on the balance of probabilities: see e.g., R. v. Fontaine 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 54. Nor is a third party suspect defence like an “ordinary affirmative defence”, such as self-defence, duress, or necessity, where the accused injects new issues of mixed-law and fact into a trial relating to whether their otherwise criminal conduct was justified or should be excused: Fontaine, at para. 55, citing R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 57. The issue the third party suspect defence addresses – identity – is already a matter for consideration and a matter for the Crown to prove.
[103] As always, the determination of whether the Crown has met its burden is determined on evidence. Since it can undercut the Crown’s ability to prove that the accused has committed the actus reus, “evidence of the potential involvement of a third party in the commission of an offence is admissible”: R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 46. To be clear, relevant evidence about the potential involvement of a third party in the commission of the offence is “admissible” in both senses of the term: (1) relevant evidence of the potential involvement of a third party in the commission of an offence can be presented to the trier of fact during the trial if it has not already been led; and (2) it is “admissible” for the accused to use evidence that has already been admitted for another purpose in order to support a third party suspect defence, if that evidence is relevant to the third party suspect defence.
[104] Significantly, the ultimate question of whether the Crown has proved its case beyond a reasonable doubt is a question for the jury in a jury trial, not the judge administering the third party suspect rule. The third party suspect rule is therefore no more than a threshold “admissibility” inquiry designed to determine whether the third party suspect defence warrants consideration by the jury: R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475; R v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 121, citing Grandinetti, at paras. 47-48. Where the admissibility test is met, the fortunes of the third party suspect defence must be determined by the trier of fact on the evidence as a whole: R. v. Rudder, 2023 ONCA 864, 169 O.R. (3d) 561, at para. 58, citing Ranglin, at para 60. There is a well-recognized risk that, if misapplied, the third party suspect rule can cause an improper shifting of the burden of proof to the accused: R. v. Gauthier, 2021 ONCA 216, 403 C.C.C. (3d) 69, at para. 41. This error is to be guarded against.
[105] The following proposition, which I described in Rudder, at para. 61, captures the third party suspect rule:
Third party suspect evidence will be admissible where: (1) the accused presents or points to evidence on the record of a connection between a third party and the offence charged, that, if assumed to be true and interpreted in favour of the accused, could raise a reasonable doubt about the guilt of the accused; and (2) the trial judge has not determined that the probative value of that evidence is substantially outweighed by the risk of prejudice it presents.
[106] In Grant, at para. 21, Karakatsanis J., for the court, described these two components of the rule as the “air of reality test” and the “Seaboyer admissibility test”, and she directed that they “remain two distinct inquiries.” This is sensible, for the two inquires perform different functions.
[107] The first of these inquiries, the “air of reality test”, is used by the trial judge in order to perform their “gate-keeping” role: Grant, at para. 21. It demands that before a third party suspect defence will be on the table for consideration, there must be relevant evidence capable of providing “some basis upon which a reasonable jury, properly instructed, could acquit based on the claim of third party authorship”: Spackman, at para. 121, citing Grandinetti, at paras. 47-48 and Fontaine, at para. 70; R. v. J.M.W., 2020 ABCA 294, 391 C.C.C.(3d) 1, at para. 28.
[108] I described the mechanics of this “air of reality” inquiry in Rudder, at para. 59. Instead of rephrasing the same points I will reproduce what I said in its entirety:
Like other air of reality inquiries, the threshold admissibility determination is to be made by assuming that the evidence most favourable to the accused is true: Grant, at para. 20. To be sure, the evidence must have sufficient probative value to justify its reception: [R. v. Hudson, 2021 ONCA 772, 158 O.R. (3d) 589], at para. 196. However, this probative value assessment is limited so that the trial judge does not perform the function of the trier of fact when assessing admissibility. Therefore, where there is direct evidence supporting a third party suspect’s possible perpetration, that will be enough; the sufficient connection test is met and it will be up to the trier of fact to determine whether that direct evidence raises a reasonable doubt: [R. v. Murphy, 2012 ONCA 573, 292 C.C.C. (3d) 122], at para. 22. Where the evidence relied upon to show the sufficient connection is circumstantial, the trial judge must inquire whether the inferences being relied upon are reasonable inferences that arise from the evidence, and not simply from speculation or conjecture: R. v. Fenton, 2019 ONCA 492, at para. 18; R. v. Sorella., 2022 QCCA 383, at paras. 86- 87, leave to appeal refused, [2022] S.C.C.A. No. 155. If the evidence could support a reasonable inference that someone other than the accused may have committed the crime, the evidence has the probative value required to satisfy the sufficient connection test: Grandinetti, at para. 46, Abella J. quoting from R. v. McMillan, (1975), 7 O.R. (2d) 750 (C.A.) at p. 757, aff’d [1977] 2 S.C.R. 824.
[109] The second inquiry, the “Seaboyer admissibility test”, operates where the “air of reality test” has been met: R. v. Seaboyer, [1991] 2 S.C.R. 577. It provides trial judges with a limited discretion to exclude third party suspect evidence even where the defence has an air of reality. Unlike the “air of reality test”, which examines whether there is a basis for putting the third party suspect evidence “on the table” for consideration, the “Seaboyer admissibility test” offers a tightly limited discretion to take that defence off of the table if it is not worth considering. To exercise it, the trial judge must be satisfied that the probative value of the evidence is substantially outweighed by the risk of prejudice it presents: R. v. Hudson, 2021 ONCA 722, 158 O.R. (3d) 589, at para. 193; Grant, at para. 19. Where the third party suspect is linked to the charged offence by reason of having committed other offences, particularly highly similar offences, it may be given undue weight, distracting the trier of fact: Grant, at para. 39. Where the third party suspect evidence does not link the third party to other criminal activity or discreditable conduct, as in this case, other forms of “reasoning” prejudice may arise. “Reasoning prejudice” includes the “distraction of the trier of fact from their proper focus on the offence charged by the introduction of evidence of other incidents that consume undue time”: R. v. Ansari, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 108, leave to appeal refused, [2015] S.C.C.A. No. 487.
[110] In Grant, at para. 21, Karakatsanis J. recognized that in some cases, a third party suspect application will not be required to resolve whether these threshold standards have been met. Although she was speaking in the context of an unknown third party suspect allegedly linked to the charged offence because of their commission of a highly similar crime on another occasion, it is evident that her comments also apply in cases such as this, where the alternate suspect is one of the known players in the factual scenario surrounding the offence. Specifically, she said, “where the defence evidence relates to the facts underlying the offence charged, the logical relevance and the admissibility of the evidence will be obvious” but “where the evidence refers to a factual matrix beyond the offence charged, its relevance to a fact in issue or an available defence may be less clear. In such circumstances, the gate-keeping role of the trial judge may require her to determine whether the evidence is logically relevant and connected to a defence that has an air of reality.” Put otherwise, the trial judge need not perform their gate keeping role of examining the logical relevance and connectedness of third party suspect evidence when those components are obvious.
[111] It follows, in my view, that if the potential involvement of the third party suspect is already on the table given the nature of the Crown case, there is no need for a third party suspect application. In this case, for example, the Crown theory was that there were only two individuals involved in the physical confrontation with the McComb brothers, Mr. Appleton and SHG, and that one or the other of these men was the stabber. In effect, the Crown addressed, as part of its case, whether SHG was an alternate suspect in the stabbing. Appropriately, the trial judge did not require a third party suspect application to permit Mr. Appleton to lead evidence and argue that SHG and not Mr. Appleton may have been the stabber.
[112] By way of further example, if the Crown relies in a possession case on an accused person’s exclusive control over the item allegedly possessed, the accused does not require a third party suspect application to present evidence showing that other specific persons linked to the events may have had control over the item at the relevant time: Rudder, at para. 65; Gauthier, at para. 36 The Crown has already made this an issue given the exclusive control theory it has presented.
There Was no Need for a Third Party Suspect Application
[113] In my view, there was no need for a third party suspect application in the circumstances of this case. Before the defence even began its case, Mr. Muhia’s potential involvement as the stabber was made a live issue by the Crown. It presented evidence, as part of its case that Mr. Muhia was not the stabber, by asking him directly during his evidence in chief if he was the stabber.
[115] First, it is manifest that in its jury address the Crown sought to strengthen its substantive case on the basis that the exclusion of Mr. Muhia as the stabber would assist in drawing a circumstantial inference that Mr. Appleton was the stabber.
[116] Second, even if the Crown had advanced a theory that Mr. Muhia could not have been the stabber only for a limited tactical purpose relating to Mr. Iozzo’s reliability, it nonetheless sought to rule Mr. Muhia out as the stabber so that Mr. Iozzo’s evidence would better suit its case. It is untenable to suggest that Mr. Appleton needed a third party suspect application to be able to respond to this attempt with evidence showing that, in fact, Mr. Muhia may have been the stabber. It would be unfair, in my view, to permit the Crown to call evidence to prove and argue that Mr. Muhia is not the stabber, which the defence cannot respond to without launching a successful third party suspect application. [Emphasis by PJM]
[117] Finally, it bears notice that Mr. Appleton was not simply offering Mr. Muhia as an alternate suspect for himself as the stabber. He also raised the issue of whether Mr. Muhia may have been the stabber, instead of SHG. If jurors could not reject this latter possibility, it would weaken the Crown’s attempt to rely on the “joint” flight by Mr. Appleton and SHG as evidence that “the two assailants” were obviously working in concert during the fight. It is not at all clear that the third party suspect rule even applies where the accused wants to dispute the identity of an alleged co-party. I question whether it does but I need not resolve this issue because, as I have said, the Crown itself put Mr. Muhia’s role as the stabber into issue.
[118] The trial judge erred in proceeding on the basis that the third party suspect defence relating to Mr. Muhia could not be advanced without a successful application.
The Representation that no Application Would Be Brought Is Immaterial
[119] The fact that Mr. Appleton told the trial judge that he was not going to be bringing a third party suspect application does not justify the trial judge’s charge relating to Mr. Muhia. Since no application was required in the circumstances of this case, this representation cannot justify removing the defence from the jury.
There Was an Air of Reality to Mr. Muhia’s Involvement
[121] Although some deference is to be given to the inferences trial judges draw, a standard of correctness applies to air of reality determinations relating to proposed defences: R v. Suthakaran, 2024 ONCA 50, 433 C.C.C. (3d) 175, at para. 15, citing Cinous, at para. 55; R. v. Hayes, 2020 ONCA 284, 391 C.C.C. (3d) 453, at para. 50. If the trial judge did deny Mr. Appleton access to the third party suspect defence because of a finding that it lacked an air of reality, her decision was not correct. On the evidence before her, the path to an air of reality was so clear that any decision to the contrary would either have been unreasonable, or necessarily grounded in a misconception of the rule.
[122] There was both direct and circumstantial evidence supporting reasonable inferences of Mr. Muhia’s potential involvement in the stabbing, including a sufficient connection between him and the offence:
Mr. Muhia was physically proximate to the location of the fatal confrontation at the time the Crown alleged it was unfolding. He was not only at Gucci’s in the geographical area of the stabbing, he was captured by the Alcove Camera leaving Gucci’s Alcove at approximately 2:00:10 a.m. and remaining outside of but near to the Alcove until 2:00:21 a.m.
There was evidence that Kiowa was stabbed on the sidewalk immediately in front of Gucci’s Alcove, an area Mr. Muhia had clear access to during the period he was off camera.
Although Mr. Muhia attested to his belief that he had not done the stabbings, he admitted that it was possible for him to have done so. He could not say otherwise and could not account for his departure from Gucci’s during the 10 to 11 second period that became the focus of the Crown’s case.
[125] During submissions before us, the Crown attempted to counter the submission that there was an air of reality to Mr. Muhia’s involvement by relying upon evidence that was inconsistent with his involvement,…
….An air of reality test is to be conducted based on the evidence taken at its highest for the accused and on the assumption that the evidence favourable to the defence is true: Cinous, at paras. 53-54. In this sense, an air of reality inquiry operates much like the prima facie case inquiry the Crown undertakes when it seeks to put (at a preliminary inquiry) or keep (in response to a motion for directed verdict of acquittal) the issue of the guilt of the accused on the table. In making air of reality determinations judges are not to make their assessment based on acceptance of testimony favouring the Crown case on contested issues.
[126] Finally, this is not a case where there was uncontested or uncontestable evidence that would make it impossible for Mr. Muhia to have stabbed Kiowa, and/or Sarcee. Although there was a realistic basis in the evidence for finding that Mr. Appleton did stab the men, this evidence was not so unequivocal that it could undermine any realistic possibility that Mr. Muhia could have done so.
[128] In these circumstances, there was an “air of reality” that Mr. Muhia could potentially have been the stabber. It must be remembered that the question is not whether this evidence proves that he was. It is whether a reasonable juror could have a reasonable doubt about Mr. Appleton’s guilt: Cinous, at para. 49. In my view, the trial judge was incorrect if she concluded otherwise.
[130] In my view, if the trial judge did deny Mr. Appleton access to the third party suspect defence relating to Mr. Muhia based on the relative probative value and prejudice of the defence, she erred in doing so.
Ground of Appeal A – Conclusion
[131] The trial judge misdirected jurors when she instructed them in a fashion that could only have been understood by them as an instruction that evidence relating to Mr. Muhia’s potential guilt was irrelevant to their deliberations. Since this is a serious error that necessarily requires that the appeal be allowed and the findings of guilt be set aside, there is no need to provide extensive reasons on the remaining issues….
CONCLUSION
[144] I would allow the appeal on grounds A and B, set aside the convictions, and order a new trial.
R v AB, 2024 ONCA 111
[February 12, 2024] Confidential Informant Privilege [Reasons by Fairburn A.C.J.O., with B. Zarnett and J. George. JJ.A. concurring]
AUTHOR’S NOTE: Some details of this published decision have been redacted, but the analysis of case law and Crown conduct remains valuable for informing future cases. The Crown cannot ignore a defence lawyer’s request for assistance when their client’s identity as a confidential informer may be revealed during a trial. Once the Crown is notified, they must adhere to the accepted test for determining if evidence should remain privileged: “whether the disclosure may tend to reveal the appellant’s identity, as opposed to whether it is likely to do so.”
A. OVERVIEW
[1] This is an appeal from conviction on counts of possession of a [privileged] substance for the purpose of trafficking and [privileged]. The appellant asks this court to set aside the convictions and enter a stay of proceedings because the Crown breached the appellant’s confidential informant privilege when it disclosed [subject of disclosure] to a co-accused.
[2] For the reasons that follow, I agree that the Crown failed in its duty to protect the appellant’s confidential informant privilege and that a stay of proceedings must be entered.
B. FACTUAL BACKGROUND
(1) Overview
[3] [paragraphs 3-25 privileged]
C. ANALYSIS
(1) The breach of confidential informant privilege
(a) The trial judge’s ruling
[26] The trial judge dismissed the appellant’s application for a stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms . This application was predicated on what was said to be an abuse of process arising from the breach of the appellant’s confidential informant privilege. In dismissing the application, the trial judge erred by applying the wrong standard for determining when disclosure of information amounts to a breach of confidential informant privilege. Applying the correct standard leads to the invariable conclusion that the appellant’s confidential informant privilege was breached.
[28] The trial judge said that he needed to answer the following question: “Did the documents disclosed to the co-accused tend to suggest that the [appellant] was a confidential informant?” He noted that his sole concern was “whether the records tend to disclose the [appellant’s] [privileged] confidential informant.” The trial judge also observed that the Crown’s duty was not to disclose information that “tends to suggest that a person is [privileged] a confidential informant” (emphasis added).
[31] The trial judge concluded that the appellant’s position was “based, to a large extent, on speculation, … as to what the co-accused may or may not think and as to the conversation that may result.” Accordingly, the trial judge was not satisfied that the [subject of disclosed record] could tend to cause the “co-accused or anyone to logically infer that the applicant may be a [privileged].”
(b) The legal error: the wrong approach to the question of whether privilege was breached
[33] Respectfully, the trial judge erred in how he approached the question of whether privilege was breached. The question, as he posed and applied it, was whether the information “tended to disclose” the appellant’s identity as an informant instead of whether it might tend to do so. The proper approach was to ask whether the disclosed information, considered in light of the circumstances [privileged], might tend to identify the appellant as an informant. There was clear evidence that met this latter test.
(i) The law of confidential informant privilege
[34] Once it is properly invoked, confidential informant privilege admits of no discretion. It is a near absolute privilege. Subject to a person successfully raising the innocence at stake exception, this class privilege acts as a complete bar to disclosing not only the identity of a confidential informer, but as a complete bar to disclosing “[a]ny information which might tend to identify an informer”, or, “any information that might lead to identification”. That includes any information that “might implicitly reveal” the informer’s identity: Named Person v. Vancouver Sun , 2007 SCC 43, [2007] 3 S.C.R. 253, at paras. 26, 30 (emphasis added). See also R. v. Leipert , [1997] 1 S.C.R. 281, at paras. 18, 21; R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, [2017] 2 S.C.R. 157, at para. 1; and R. v. Crevier , 2015 ONCA 619, 330 C.C.C. (3d) 305, at para. 49. Accordingly, although confidential informant protected information often meets the low threshold for disclosure, that being anything that is not clearly irrelevant, the fact that it is privileged prevents disclosure from being made: R. v. Stinchcombe, [1991] 3 S.C.R. 326, at pp. 339-340; Leipert, at para. 8; R. v. Biddle , 2018 ONCA 520, 141 O.R. (3d) 401, at para. 66; and R. v. Omar , 2007 ONCA 117, 84 O.R. (3d) 493, at para. 39.
[35] Therefore, when it comes to protecting the identity of informants, the Crown is without discretion. The Crown must not disclose “in any proceeding, at any time”, information that may tend to identify a confidential informant. Accordingly, it is without surprise that confidential informant privilege has been described as “extremely broad and powerful” in scope: Named Person, at para. 30.
[36] There are two reasons why confidential informant privilege is granted a wide berth. Confidential informants are instrumental to the criminal justice system, often providing key information in serious criminal investigations that are otherwise unsolvable. The best informants are often those who operate side-by-side with persons in the criminal subculture. When their identities become known, they are at grave risk of retribution. Their lives may be at stake. That is enough to place people charged with the responsibility of protecting their identities on high alert.
[37] But there is more. When informants are not granted the protection they are promised in return for their information, it also has the inevitable effect of placing the criminal justice system at grave risk. This is because, when a privilege slip occurs, it places an obvious chill on the willingness of persons to become confidential informants: Named Person, at para. 101; Durham Regional Crime Stoppers Inc., at para. 1; and R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 30. Therefore, so serious is the privilege to the proper functioning of the administration of justice that it belongs jointly to both the Crown and the informant, and neither can waive it without the consent of the other: R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at para. 40
[38]…. Those who have to make calls about disclosure do not know what the accused and others already know. Accordingly, the law requires that those disclosure decisions err on the side of caution, assuming that even the disclosure of seemingly bland information can result in a narrowing of the pool. As explained in Omar, at para. 40, “[e]ven the slightest piece of information about the informer gleaned from the police files could serve to eliminate some members of the pool or identify the informer.”
(ii) The application of the law to the disclosure in this case
[40] The reasons the trial judge gave for saying that the disclosure did “not tend to suggest that the [appellant] is a confidential informant” illustrate that the trial judge failed to approach the matter through the correct legal lens – whether disclosure may tend to reveal the appellant’s identity, as opposed to whether it is likely to do so. The trial judge did occasionally use the words “may tend to suggest” in the ruling. However, this is not the standard that was applied.
[42] Another example of the overly narrow approach taken in determining the privilege issue is the trial judge’s comment that the appellant’s position should be rejected because it was “based, to a large extent, on speculation, in particular, as to what the co-accused may or may not think and as to the conversation that may result.” This comment ignores the reality that an informant is limited in the questions they can ask to determine what another person suspects or knows without risking disclosure. The comment also misstates what the appellant was asking of the trial judge, namely, that the judge examine the evidence, draw reasonable inferences from it and consider the disclosure in context in determining whether the disclosed information could lead to the identification of the appellant as an informant.
[44] It is not far-fetched that the co-accused would ask the appellant about [content of the record]. After all, the parties agree on appeal that the information about [content of the record] would have been “relevant” to the co-accused. As the respondent Crown fairly acknowledges, the co-accused might have been interested [balance of paragraph privileged].
[45] Accordingly, imagine what would happen if the appellant testified at trial and was asked about [the content of the record.] Quite simply, there would be no honest answer that the appellant could give in response to that question that would not undermine the privilege. Indeed, the Crown respondent properly conceded this fact during oral submissions. While the Crown attempted to advance submissions about things that could be done to avoid the appellant having to provide an honest answer, such as staying the proceedings on the spot, respectfully, that remedy would fall well short of what the privilege requires. Disclosure calls cannot be made based on the potential to scramble after the fact should someone get even closer to discovering an informant’s identity. The disclosure should not be made in the first place. [Emphasis by PJM]
[46] This leaves one question. Should the proceedings be stayed for an abuse of process? As I will now explain, the answer to that question is also yes.
(2) A stay of proceedings is warranted
[47] The abuse of process doctrine is directed at egregious Crown conduct that either seriously compromises trial fairness or the integrity of the justice system: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 50. This case is about whether the Crown conduct falls within the latter, residual category, serving to undermine the integrity of the administration of justice: R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 73; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 89; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at paras. 41, 59; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31; and R. v. Brunelle, 2024 SCC 3, at para. 27.
[48] On rare occasions, in the “clearest of cases”, a stay of proceedings is warranted for an abuse of process. As recently affirmed in Brunelle, at para. 29, the test for determining whether a stay of proceedings is required involves three requirements:
(1) there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54; Babos, at para. 32);
(2) there must be no alternative remedy capable of redressing the prejudice (Regan, at para. 54; Babos, at para. 32);
(3) where there is still uncertainty over whether a stay of proceedings is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (Regan, at para. 57; Babos, at para. 32). [Emphasis added.]
[49] In my view, there is clear prejudice to the justice system that will be manifested, perpetuated and aggravated by maintaining the convictions in this case. There is no remedy available to redress the prejudice other than a stay of proceedings.
[50] [Privileged] the prosecution should have been on high alert about revealing a confidential informant’s identity, [privileged]. The appellant’s status as a confidential informant [privileged]. And the federal Crown knew all of that. They also knew about the [privileged]. That is clear from the communications I am about to review.
(a) The approach to this case
[51] Defence counsel first informed the prosecuting Crown about the circumstances [privileged] when the search warrant was executed. Defence counsel specifically told the prosecuting Crown that [privileged]. In that initial communication, defence counsel inquired into whether the Crown might consider consenting to the release of [privileged]. Defence counsel offered to provide proof of the [privileged], and noted that, if the two counsel could not agree upon the matter, it would be “tricky to have this information put before the court” in a way that would not “[privileged] compromise [privileged] confidential informer status.”
[55] The prosecuting Crown’s response was as follows:
I asked you about [privileged] because I was not sure if your client had [privileged]. In any event, it is your application to bring and although the Crown does not typically give legal advice to counsel you may want to consider provisions for an in camera hearing. [Emphasis added.]
[56] To be clear, the defence was not seeking the Crown’s legal advice. The defence was asking the Crown to do what the Crown is required to do: act as a joint privilege holder and engage in a meaningful discussion about how to protect confidential informant privilege in this very delicate situation. Despite the fact that the informant was an accused, the Crown was under a clear obligation to protect the privilege, and yet there is no indication in the Crown’s response that they understood those obligations. The response seemed to place all responsibility on the informant to protect the privilege.
[59] Despite defence counsel’s repeated efforts to engage the prosecuting Crown on the sensitive issue of confidential informant privilege, Crown counsel rebuffed those efforts.
[68] In this email, the prosecuting Crown misstates the test for protecting confidential informant privilege. It is not about whether information leads to a “natural conclusion” that someone is an informant, but whether that information may tend to identify them as an informant. As explained above, the information in question met that test.
[69] The prosecuting Crown went further and turned the tables on defence counsel, suggesting that it was not the Crown, but defence counsel who was compromising the appellant’s status as an informant by [quotation removed.] Crown counsel said that defence counsel’s expressed concerns were “misguided and appear[ed] to be an attempt to gain some advantage where none [was] warranted.”
[70] At no time did Crown counsel attempt to recover [the disclosed record], which included the [a part of the record] records.
(b) The role of the Crown in protecting confidential informant privilege
[71] There is sometimes confusion over the role of Crown counsel. As a quasi minister of justice, the Crown’s primary role is to pursue justice: Boucher v. The Queen, [1955] S.C.R. 16, at pp. 23-24. This does not mean that the Crown cannot be a vigorous advocate. Quite the contrary. Robust advocacy is part and parcel of the proper pursuit of justice in criminal law. The public expects and deserves nothing less from prosecutors.
[72] At the same time, Crown counsel is no ordinary litigant: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 49. The Crown’s undivided loyalty rests not with a client, but with the administration of justice: David Layton and Michel Proulx, Ethics and Criminal Law, 2nd ed. (Toronto: Irwin Law, 2015), at p. 583, citing McNeil, at para. 49. This loyalty calls on the Crown to rise above the fray and to ensure their communications and conduct are characterized by “[f]airness, moderation, and dignity”: Public Prosecution Service of Canada Deskbook, Part II, ch. 2.2, “Duties and Responsibilities of Crown Counsel”, revised September 12, 2023.
[73] In this case, once the Crown was placed on notice through correspondence with defence counsel about the appellant’s informant status and the [privileged], it was the Crown’s duty to proceed with caution, investigate the situation and engage in meaningful work to ensure that the privilege was not breached. This would have taken thought about how to proceed. However, it was necessary work – work that required setting aside a litigious mindset. Unfortunately, it is apparent through the words and actions of the prosecuting Crown that they did not proceed in this manner. Those words and actions reflect an intentional decision to forge ahead, despite being repeatedly placed on notice of the apparent danger, without giving any consideration to privilege. The result was to place the appellant at risk, and, just as importantly, to place the class privilege at risk.
[74] In my view, there is no alternative remedy capable of redressing the prejudice to the entire class in this case. While the public has a strong interest in a decision on the merits of this case, it has an even stronger interest in the “ancient and hallowed protection” of confidential informant privilege, which plays a vital role in law enforcement: Leipert, at para 9.
D. CONCLUSION
[75] This is one of those rarest and clearest of cases in which the convictions should be stayed for abuse of process. The convictions are set aside and a stay of proceedings is entered.
R v Burkhard, 2024 ONCA 353
[May 6, 2024] Prior Consistent Statements as Part of a Principled Exception to Hearsay Statement [Reasons by C.W. Hourigan J.A. with P. Lauwers and I.V.B. Nordheimer JJ.A. concurring]
AUTHOR’S NOTE: Prior consistent statements are generally inadmissible in law. This case explores the necessary judicial actions when such statements are admitted under the principled exception to hearsay as part of a longer statement. Specifically, the judge must, at a minimum, instruct the jury that even though this evidence has been admitted, it cannot be used to bolster the credibility of the witness’s in-court testimony merely because the events were repeated in the prior statement.
The Court also considers an additional option: editing out the consistent utterances from the longer statement. This may be a cleaner approach, especially in a jury trial, to ensure that the jury is not influenced by the repetition of the witness’s version of events.
Introduction
[1] Wasfi Ghalban was stabbed in the neck and killed during a home invasion at his apartment. Four men were charged in relation to the homicide. Philip Frauts, who organized the robbery, and Christopher Fuller, who acted as the lookout, pleaded guilty to manslaughter. The appellant and Kyle Schindermann, who entered Mr. Ghalban’s apartment and carried out the robbery, were charged with first degree murder on separate indictments.
[2] The appellant was convicted of first degree murder. He appeals his conviction, advancing a single ground of appeal: the trial judge erred in admitting a statement that Mr. Schindermann made to the police. During the course of oral submissions on the appeal, the argument narrowed to two central points relied on by the appellant. First, the trial judge failed to weigh the probative value of the statement against its prejudicial effect. According to the appellant, had he done so the statement would not have been admitted given its overwhelming prejudicial impact. Second, given that the statement contained both prior inconsistent statements and consistent statements, the prior consistent statements should have been excised, or, in the alternative, if they were included, the trial judge should have warned the jury regarding the prohibited use of prior consistent statements.
[3] For the reasons that follow, I would allow the appeal based on the argument regarding the prior consistent statements….
Factual Background
[5] During the police’s investigation of the homicide, they received a lead about Mr. Frauts’ involvement in the crime. Two undercover officers, with the codenames Sophie and Stew, approached him and pretended to be sophisticated criminals with connections to corrupt government officials and law enforcement agents. The officers told Mr. Frauts that they could fix complex criminal problems. Over the course of several months, they were in contact with Mr. Frauts but made no progress in establishing a relationship of trust where he would confide in them.
[6] In an effort to accelerate the establishment of a trust relationship, another undercover police officer was introduced to the ruse, posing as the victim’s girlfriend. This officer claimed to possess a video of the robbery and killing of Mr. Ghalban from hidden cameras in the apartment. She threatened to go to the police if Mr. Frauts did not pay her. As a consequence of this development, Mr. Frauts went to Sophie and Stew for assistance. They assured him that they could take care of the problem by using their law enforcement connections to make the evidence disappear. However, they stated that they needed to know who else was involved in the robbery.
[7] Mr. Frauts then introduced Mr. Schindermann to Sophie and Stew. The officers told Mr. Schindermann that they had access to the video and could help him. To do so, however, they required full disclosure of the details of the robbery and killing in order to eliminate the incriminating evidence. Over the course of more than four hours, Mr. Schindermann provided the officers with an account of the robbery and killing of Mr. Ghalban. During his statement, which was audiorecorded, he told the officers that the appellant stabbed the victim on the balcony when he went to retrieve zip ties.
[9] Mr. Schindermann was a Crown witness. He confirmed the audio-recording was accurate and that he told the undercover officers the truth. However, multiple inconsistencies emerged between his statement to the police and his trial testimony. The inconsistencies included: when he noticed blood; whether the victim fell to the ground on his own or was wrestled to the ground by him; whether he held the victim to the ground with his knee and hand or simply hovered over the victim when he was on the ground; when he realized the victim was dead; whether the appellant kicked the victim in the head; and whether the appellant threatened to cut the victim’s finger off.
[10] At trial, it was uncontroverted that the differences between Mr. Schindermann’s testimony and his statement to the police were relevant to the issues at trial. This was because if the jury rejected Mr. Schindermann’s evidence that the appellant had stabbed Mr. Ghalban, it was still open to them to find the appellant guilty of murder as a principal, aider or party. That determination necessarily engaged factual issues about when and where Mr. Ghalban was stabbed, when the appellant would have known Mr. Ghalban had been stabbed, when Mr. Ghalban stopped struggling, whether the victim was kicked in the head, and when Mr. Ghalban died. Due to these inconsistencies, the Crown applied under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5, to cross-examine Mr. Schindermann. Defence counsel did not oppose that application and it was granted.
[11] Despite the obvious discrepancies between his police statement and trial testimony, during the cross-examination, Mr. Schindermann insisted that there was nothing different between the two versions. The Crown then applied to have the prior statement go to the jury for the truth of its contents. Counsel for the defence at trial (not the appellant’s counsel on appeal) objected to its admission on the basis that the prejudicial impact of the statement outweighed its probative value. He did not object on the basis that the statement contained both prior inconsistent and consistent components.
[13]….When the trial judge reviewed the statement in his jury charge, he instructed them “both the testimony and the earlier statement are evidence of what happened as it relates to Kyle Schindermann. You can consider his statements to the undercover officers as if he had made those statements in court.”
Analysis
[14] The dangers of prior consistent statements are well known. They are presumptively inadmissible because they lack probative value. The fact that someone said the same thing on a prior occasion as what they said in court is not probative of whether the witness is offering truthful testimony in court. It would be self-serving to allow a witness to buttress their testimony with prior consistent statements: R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 25.
[15] Prior consistent statements are admissible in limited circumstances (e.g., for narrative purposes). When they are introduced in evidence, the court must be vigilant in how they are used: R. v. Salah , 2015 ONCA 23, at paras. 136 – 139. The Supreme Court of Canada described the distinction between the permissible and impermissible uses of prior consistent statements in R. v. Dinardo , 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 37:
In some circumstances, prior consistent statements may be admissible as part of the narrative. Once admitted, the statements may be used for the limited purpose of helping the trier of fact to understand how the complainant’s story was initially disclosed. The challenge is to distinguish between “using narrative evidence for the impermissible purpose ‘of confirm[ing] the truthfulness of the sworn allegation’” and “using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of the truthfulness or credibility”. [Citations omitted.]
[16] In a similar vein, in R. v. C. (G.), 2006 CanLII 18984 (C.A.), Rouleau J.A. stated, at para. 20, “the evidence of prior complaint cannot be used as a form of self-corroboration to prove that the incident in fact occurred. It cannot be used as evidence of the truth of its contents.”
[17] In the case at bar, the consistency between the police statement and the trial testimony was the contention that the appellant was the person who stabbed the victim. Repeatedly in both the police statement and his testimony at trial, Mr. Schindermann testified that it was the appellant who stabbed the victim. There was a realistic danger that the jury would rely on this consistency in assessing Mr. Schindermann’s credibility. Specifically, a juror might reason that, despite the inconsistencies between the police statement and the trial testimony, Mr. Schindermann was consistent regarding the central issue in this case, that the appellant was the person who stabbed the victim. That consistency could be used to bolster Mr. Schindermann’s credibility and support a conclusion that the Crown had proven first degree murder beyond a reasonable doubt. This is particularly so, in this case, given that Mr. Schindermann made the first statement to persons who he did not know were police officers and at a time when he was not facing a murder charge. The prior consistent statement might have been used by the jury to alleviate any concern that they had that Mr. Schidermann was, by the time of trial, attempting to shift the blame for the murder from him to the appellant.
[18] This problem could have been avoided in one of two ways. The first was to excise the prior consistent statements contained in the police statement. As noted, defence counsel at trial did not ask to do this, so it is difficult to fault the trial judge for not taking this step. However, once a prior consistent statement is adduced into evidence, a clear warning by a trial judge is necessary to eliminate the risk that a jury will use it for a prohibited purpose. [Emphasis by PJM]
[19]…. In this regard, there is no magic formula about what must be said. It is sufficient if the trial judge instructs that the fact of the consistency cannot be relied on in support of the jurors’ assessments of the credibility of witnesses.
[20] In this case, the trial judge’s charge exacerbated the risk that the jury would use the prior consistent statement for the prohibited inference. He instructed the jury explicitly about prior consistent statements at only one point in charge where he said, “as well, simply because Mr. Schindermann, or any other witness, has repeated something does not necessarily indicate that it is true.”
[21] With respect, this was an incorrect instruction. Its effect was to reinforce everyday common sense notions regarding consistent statements. The judge essentially told the jury that just because a witness is consistent in their statements, that does not necessarily make them credible. That instruction is in accord with the jurors’ lived experience as it instructed them that a prior consistency may or may not enhance credibility. However, this instruction is contrary to the law. What the judge should have told the jurors was that the fact of a consistent statement was irrelevant in their credibility assessment. [Emphasis by PJM]
Disposition
[24] For the foregoing reasons, I would allow the appeal, set aside the conviction on first degree murder, and order a new trial.
