This week’s top three summaries: R v TD, 2024 ABKB 605: #voluntariness, R v Williams, 2024 ONSC 6707: s.8: indiscernible items, and R v Gorges, 2024 ONCA 870: s.276 #procedure
[October 11, 2024] Voluntariness – Oppressive Conditions – Complete Emotional Disintegration [Justice C.B. Thomson]
AUTHOR’S NOTE: This case emphasizes that the phrase “complete emotional disintegration” is not a strict legal test but rather a descriptive shorthand used to highlight circumstances where the voluntariness of a confession is called into question. It serves as a reminder that assessing voluntariness involves looking at the totality of circumstances surrounding an interrogation, including the accused’s mental state, the environment, and the methods employed by investigators.
Key Takeaways:
- Voluntariness of Confessions:
- For a confession to be admissible, it must be made voluntarily, meaning it is not the product of oppression, coercion, or circumstances that overpower the accused’s ability to make an informed decision.
- Mental Health as a Factor:
- This case underscores the importance of considering the accused’s mental health, including diagnosed or undiagnosed conditions. Here, the accused’s unmedicated bipolar disorder and claustrophobia exacerbated the psychological pressure of the interrogation.
- Environment and Interrogation Tactics:
- The physical and emotional setting of the interrogation—confined spaces, lack of breaks, and graphic images of the accused’s daughter’s injuries—contributed to the overall oppressive atmosphere.
- The police’s initial promise that the interview would be short, contrasted with the prolonged questioning, added to the coercive nature of the situation.
- Outward Expressions of Distress:
- The accused’s visible distress, including crying, yelling, and admitting to being on an emotional “roller coaster,” served as clear indicators of her deteriorating mental state. These signs reinforced doubts about whether her confession was truly voluntary.
- Exclusion of Evidence:
- The court’s decision to exclude the confession reinforces the principle that voluntariness must be beyond reproach. Statements made under conditions that compromise an accused’s free will cannot form the basis of a conviction.
Practical Implications for Counsel:
This decision is an important precedent for defence lawyers dealing with cases where the mental health and emotional state of the accused play a role in interrogation dynamics. It demonstrates that oppressive interrogation tactics—even subtle ones—combined with pre-existing vulnerabilities, can render a confession inadmissible. Counsel should carefully scrutinize the circumstances of any confession and consider challenging its admissibility where there are signs of undue pressure or emotional breakdown.
I. Introduction
[1] TD (the “Accused”) is charged with a single count of Aggravated Assault against the complainant, contrary to Section 268 of the Criminal Code, RSC 1985, c C-46.
[3] At the start of the trial, the Crown made an application (the “Application”) to determine the admissibility of certain statements made by the Accused to members of the Royal Canadian Mounted Police (“RCMP”) on various occasions: during the police investigation and when the Accused was taken into police custody on November 3, 2022, after being arrested.
[8] On the evidence, I find that the Crown has not established, beyond a reasonable doubt, that the contested November 3 Interview and the November 3 Cellblock Interactions were voluntary. I am satisfied that the Crown has not proved, beyond a reasonable doubt, the voluntariness of these statements made by the Accused to the police officers. To that extent, the contested November 3 Interview and the November 3 Cellblock Interactions are inadmissible at the trial of this case.
II. Issues
[9] The voluntariness issues engaged in this case are: (i) inducement or promise; and (ii) oppression.
[10] The Accused argued that she had an understanding that the police officers only had a few questions for her and that the interview would not take long. This was confirmed by Officer K at the start of the interview but was not honoured. The Accused argued that this constituted an inducement. The Accused also argued that the manner and conditions of the Contested November 3 Interview and the November 3 Cellblock Interactions were so oppressive that they overbore her free will and deprived her of the choice either to speak to the officers or to remain silent.
[11] The Crown denied that there was any inducement or oppression of any kind by the police officers in this case.
III. Applicable Law
A. The Modern Common Law Confessions Rule
[13] The law relating to the modern common law confessions rule in Canada is settled: R v Tessier, 2022 SCC 35 at para 68. The confessions rule provides that a confession to a person in authority is presumptively inadmissible, unless the Crown proves beyond a reasonable doubt that the confession was voluntary: R v Beaver, 2022 SCC 54 at para 45.
[14] The application of the confessions rule is necessarily flexible and contextual. When assessing the voluntariness of a confession, the “trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority”: Tessier at para 68. The trial judge must consider all relevant factors, including the presence of threats or promises, the existence of oppressive conditions, whether the accused had an operating mind, any police trickery that would “shock the community”, and the presence or absence of a police caution. These factors are not a checklist that supersede a contextual inquiry: Beaver at para 48.
[15]….A statement may be involuntary “because it is unreliable and raises the possibility of a false confession, or because it was unfairly obtained and ran afoul of the principle against self-incrimination and the right to silence”: Beaver, at para. 47. Therefore, voluntariness, as it is understood today, requires that the court scrutinize whether the accused was denied his or her right to silence: R. v. Singh, 2007 SCC 48, at para. 37.
[17] The focus of the voluntariness inquiry is on the conduct of the police and its effect on the suspect’s ability to exercise his or her free will. The test is an objective one. However, the individual characteristics of the accused are obviously relevant considerations in applying this objective test: Singh, at para. 36.
[18] The Supreme Court of Canada, in setting the voluntariness test, highlighted “the need to be sensitive to the particularities of the individual suspect” and the fact that the analysis “will by necessity be contextual”: R v Oickle, 2000 SCC 38 at paras 42, 47; R v Spencer, 2007 SCC 11 at para 13.
[19] The Court in Oickle at para 42 recognized cases where the circumstances of the suspects, such as their psychological fragility and “complete emotional disintegration,” rendered them unable to confess voluntarily, and cautioned that:
The strength of mind and will of the accused, the influence of custody or its surroundings, the effect of questions or of conversations, all call for delicacy in appreciation of the part they have played behind the admission, and to enable a Court to decide whether what was said was freely and voluntarily said, that is, was free from the influence of hope or fear aroused by them.
[citations omitted]
B. Threats, Promises, or Inducement Factor
[20] The threats, promises or inducement factor of voluntariness is concerned with coercedcompliant confessions. Statements would be inadmissible if they were obtained by “fear of prejudice or hope of advantage”: Oickle at para 49. In order to determine the presence of this factor, courts ask whether it was “a result of something said or done by a person in authority that an accused was caused or led to make a statement”: Spencer at para 14. However, threats or promises need not be aimed directly at the suspect to be coercive: Oickle at para 51.
[22] However, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne: Oickle, at para. 57. Oickle sets out examples of “improper inducements”.
C. Oppression Factor
[23] A statement will be involuntary if the circumstances of the detention “are so oppressive as to raise a doubt whether the accused was able to make an independent choice to speak to the police or remain silent”: R v Northcott, 2024 ABCA 173 at para. 45.
[24] The Oppression factor focuses on the atmosphere of a police interview. Oppression clearly has the potential to produce false confessions. If the police create conditions distasteful enough, it should be no surprise that the suspect would make a stress-compliant confession to escape those conditions. Alternately, oppressive circumstances could overbear the suspect’s will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police, and gives an induced confession. Under inhumane conditions, one can hardly be surprised if a suspect confesses purely out of a desire to escape those conditions: Oickle, at paras. 58 and 60.
[28] Oppression should be understood as anything which tends to undermine, or which does in fact undermine the voluntary nature required of a voluntary confession. The circumstances surrounding an interrogation, including the time, date and length, the frequency of interrogations, the rest time granted to the subject, feeding and personality of the subject, all constitute elements which may be taken into consideration in determining whether or not oppression exists. Oppressive conduct “is but a convenient phrase to describe the variety of circumstances which put the voluntary nature of a confession in doubt”: R. c. Otis, (2000), 151 C.C.C. (3d) 416 (Que. C.A.) at para. 31, 2000 CanLII 11367 (QC CA); leave to appeal refused, [2001] 1 S.C.R. xvii, [2000] C.S.C.R. No. 640, 274 N.R. 200 (note) (S.C.C.).
[29] In Hobbins v R, 1982 CanLII 46 (SCC), [1982] 1 SCR 553, and Horvath v The Queen, 1979 CanLII 16 (SCC), [1979] 2 SCR 376, the Supreme Court of Canada recognized the necessity of considering the “mental state” of the subject, based on the circumstances under which the statement was obtained, and which may create an atmosphere of oppression or intimidation which vitiates the voluntary nature of a confession even if, in the traditional sense, no promise or threat was made by the persons in authority: Otis at para 30. The term “complete emotional disintegration” was used for the first time in Horvath in the context of the law relating to confessions.
[30] Oppressive conditions and inducements can operate together to exclude confessions; trial judges must be alert to the entire circumstances surrounding a confession in making this decision. The absence of oppression is important not only in its own right, but also because it affects the overall voluntariness analysis: Oickle, at paras. 68 and 87; Spencer, at para. 20.
[31] For example, a relatively minor inducement, such as a tissue to wipe one’s nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep, heat, and clothes for several hours in the middle of the night during an interrogation: R v Hoilett, 1999 CanLII 3740 (ONCA), 136 CCC (3d) 449; Oickle at para 71. On the other hand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary. A court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule: Oickle, at para. 71.
D. Police Caution
[32] The role of a police caution in the voluntariness analysis was clarified in Tessier at paras 8, 11–12, 88–89. The presence or absence of a police caution is an important factor in answering the question of voluntariness. If the accused was a suspect, the absence of a caution is prima facie evidence of — but does not itself establish — involuntariness. Neither a caution nor proof of actual knowledge of the right to silence is a necessary condition of voluntariness. Nevertheless, the absence of a caution ‘“weighs heavily’ in the voluntariness analysis because it is prima facie evidence that the suspect has been unfairly denied their choice to speak to the police and that, as a consequence, the statement cannot be considered voluntary”: Beaver at para 51, citing Tessier at para 11.
E. The Scope of the Police Power of Persuasion
[34] At the heart of the confessions rule is the delicate balance between individual rights and collective interests in the criminal justice system. The “twin goals” of the rule involve “protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes”: Oickle at para 33. On the one hand, the common law recognizes an individual’s right against selfincrimination and right to remain silent, such that an individual need not give information to the police or answer their questions absent statutory or other legal compulsion; on the other hand, the police often need to speak to people when discharging their important public responsibility to investigate and solve crime: Beaver at para 46; Oickle at para 33.
[35] Consequently, the Supreme Court of Canada recognized that police officers are entitled to persuade a person to break their silence after having chosen to remain silent: Hebert; Otis at paras 5, 44; Singh at para 47. The scope of this police power of persuasion was addressed by the Quebec Court of Appeal in Otis, and later by the Supreme Court of Canada in Singh.
[36] In Otis, the accused had some mental challenges. He expressed himself with great difficulty, had limited vocabulary, limited cognition, and a low intellectual quotient. At issue in the voir dire was the third statement made by the accused to the police, which was recorded by videotape and deemed to be partially inadmissible. The trial judge found that, from that point in the video the accused stated, “I’m telling you as I’ve already told you, I’m not saying anything more”. At 00h51, the accused said, “I’m stopping now, I’m not saying anything more,” the accused experienced a psychological disintegration, and was no longer able to resist or exercise his free choice to speak or remain silent. The trial judge further noted:
He had reached a state of complete emotional disintegration. Furthermore, the second part of the video, which begins at 00h51, is painful to observe. It is clear that the accused is no longer truly following. He appears lost and completely distraught. It is extremely disturbing for a viewer witnessing the accused faced with the investigator. Any observer would conclude that a duress existed which cannot be ignored.
The Court is of the view that, as of 00h51:58, the interrogation should have stopped. Otis had already stated on four occasions that he would “say no more”. He exercised, albeit somewhat awkwardly, his right to silence. The Court, in its assessment, must take into consideration that an intellectually deficient person was seated before an experienced investigator who certainly effectively performed his job, and who was not objectively threatening, but who did not accede to the weakly uttered requests of the accused.
[Otis at para 23, emphasis in original]
[37] The Quebec Court of Appeal held that the trial judge’s finding, with respect to the respondent’s emotional disintegration, justified the exclusion of the evidence on the ground that the investigator breached the accused’s right to remain silent: Otis at paras 43, 51–52, 57. While the observations were made objectively, the subjective factors – the limited cognitive capacity of the intellectually deprived respondent – were taken into account. The refusal of the investigator to respect the respondent’s specific insistent requeststo end the interrogation, despite his mental state, constitutes a violation of the respondent’ right to remain silent. The Court found that the “persistence of the investigator in this context provoked this disintegration and it is not surprising that the respondent capitulated”: Otis at para 53.
[38] The Court found that the continuation of the interrogation constituted an abuse of the police officer’s right to attempt to persuade the respondent to break his silence and confess. This abuse, due to the persistence of the police, constitutes a breach of the accused’s right to remain silent. Noting the contextual nature of the analysis of the dynamics between the investigator and the subject, the Court stated that the power of resistance to police persuasion will vary according to circumstances and individuals. However, any tension or pressure observed in a subject faced with an interrogator either due to discomfort, embarrassment or shame, which they may feel following arrest, detention or confrontation with an investigator, who brings them back to a reality they would prefer to forget at any price, must be deemed to be in the normal course of events: Otis at paras 54–56.
[39] The Quebec Court of Appeal provided guidance regarding the limits of police persuasion, that is, “the line that cannot be crossed, up to which the police may use persuasion in attempting to convince a person, who has chosen to remain silent, to confess without breaching his freedom of choice”: Otis at para 45 [emphasis removed]. Considerations 3, 4 and 5 are particularly relevant:
(3) While police officers may attempt to persuade a person to confess notwithstanding his expressed intent to remain silent, the position of authority of the person who is interrogating the subject who is in a position of dependence must be taken into consideration.
(4) When a person raises his right, it cannot be ignored and action pursued as if the person had waived such right.
(5) In the present state of the law, both objective and subjective factors must be examined in determining whether a confession is voluntary. These factors essentially concern whether the detainee has freely exercised his will.
[Otis at para 50, citations omitted]
[40] In Singh, a majority of the Supreme Court of Canada considered Otis. They held at para 47 that:
the law as it stands does not permit the police to ignore the detainee’s freedom to choose whether to speak or not, as contended. Under both common law and Charter rules, police persistence in continuing the interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities.
[emphasis in original]
[41] Endorsing the principles in Otis as “particularly instructive on this question”, the majority of the Supreme Court of Canada noted that the trial judge in Singh was alive to “the inherent danger in the stratagem” of relentless pursuit of a confession and that it “can lead to an undermining of an accused person’s right to choose between silence and talking to the police authorities”: Singh at paras. 50 and 53.
[42] I now turn to the facts of this case.
IV. Analysis
A. Undisputed Facts
[44] The Accused has psychiatric disorders. She has Borderline Personality Disorder and PostPartum Depression. At the material time, she was under significant stress due to her children having been taken by Children and Family Services (“CFS”). The officers were fully aware of the Accused’s mental health conditions. She was not on her medication at the time of her arrest because she could not afford it.
[45] The Accused had the required level of cognitive ability at the time of her arrest and interview on November 3, 2022. She understood the charge against her.
[47] The telephone room at the C-Detachment was a very small room, slightly bigger than a courtroom witness box.
[48] The interview room at the C-Detachment was a small room. It was smaller than the interview room used in the non-custodial June 21, 2022, interview at the B-Detachment. In the interview room at the C-Detachment, the Accused was seated in a confined space in front of a desk. If the Accused rolled her chair back twice, she would hit the wall. In the November 3 Interview transcript, Officer K variously described the C-Detachment interview room as “quite warm”, without “much airflow”, the “table’s not very big”, and “[t]here’s not much room here.”
B. Findings of Fact
[51] Having considered all the voir dire evidence, I find the key facts as follows.
[54] The telephone room was tiny, and the Accused is claustrophobic. She informed the officer who put her there that the telephone room was small, and the officer told her it was her decision to either call a lawyer or not. The Accused and her family had retained a lawyer for her upcoming court date relating to the CFS intervention. She did not have the number of the lawyer and did not want to talk to another lawyer. The Accused ultimately decided to waive her right to call a lawyer.
[56] The Accused knew that the officers had told her father that they had a few questions for her that was not going to take long, an understanding Officer K confirmed to her at the beginning of the interview as set out below.
[57] Officer K did not provide a standard caution to the Accused regarding her right to silence. Officer K said to the Accused, “So, I do have a few little things just so I don’t miss anything because it’s very important. So, I just want to cover off again, I’m a police officer, like I mentioned. Whatever you do say to me today can be used as evidence. Okay?”
[58] From the November 3 Interview transcript and video, the following conversation occurred, which the Accused argues constituted an inducement:
TD: They — they just told my dad I had to come in.
CST. K: Okay.
TD: And they had a few questions for me, and –
CST. K: Yeah.
TD: it wasn’t going to take long, so.
CST. K: Yeah, exactly
[60] The November 3 Interview commenced in a conversational manner. However, after a few questions the Accused began to cry and informed Officer K that she was having “really bad anxiety.” When the questions started coming, the Accused felt overwhelmed.
[61] The November 3 Interview continued in a conversational manner until Officer K began presenting the slide deck of the police evidence. The police slide deck included, among other things, the Accused’s 911 call and graphic images of the Accused’s baby’s injuries. The slide deck contained the same injured baby’s face twice: it appeared with words in the middle, and again on the last page without words. Officer K set up a second screen on the desk directly in front of the Accused for the evidence slide presentation.
[62] The Accused became significantly upset when the 911 call was played to her. As the Accused’s stress level increased, she asked Officer K to stop. She stated, “I can’t even listen to this anymore. I’m sorry, but I can’t. … Can we just stop this, please? … “I don’t wanna listen to this. I will leave.” Officer K did not turn off the evidence presentation.
[63] Thereafter, Officer K started on the baby’s images. At this point, the Accused was crying and yelling. Visibly, she has reached her emotional tipping point. From the November 3 Interview transcript and video, the following occurred:
TD: I just want to go home. I want to go home. Get my fingerprints, take my picture, and I want to go home. I don’t want to be doing this anymore.
CST. K: Well, unfortunately, TD, like you — you do have to stay here with me.
TD: I’ll get a lawyer then. I’ll get a lawyer.
CST. K: Do you want to talk to a lawyer?
TD: Not today, but I will tomorrow. But I’m leaving.
CST. K: No. TD.
[The Accused stood up and opened the door. Officer K stood up, physically barred the Accused from leaving the interview room and closed the door.]
TD: I can’t — I don’t – want to be here anymore.
CST. K:
TD, you have to sit.
CST. K: If you want to talk to a lawyer, I can get you a lawyer. But you — — are currently under arrest so you — have to stay here with me.
TD: I don’t want to talk on the phone –
TD: I don’t want to talk on the phone.
[65] At this point, the Accused had reached the point described in Otis as “psychological disintegration” or “emotional disintegration.” The Accused’s emotions were chaotic. She had bouts of crying and yelling and moments of quiet crying and conversations with the officer. Officer K acknowledged at some point in the interview she was aware the Accused was having “a roller coaster of emotions.”
[69] Officer K continued presenting the images and the Accused’s stress level continued to increase. Moments later, the Accused asked the officer to change the image presented on the screen in front of her:
TD: Can you just change it? Change it, please? I can’t see her like that.
CST. K: Okay.
TD: Wow. You have no respect.
[70] The officer did not change the screen immediately. The Officer continued presenting other evidence that increased the Accused’s stress level. The Accused continued to cry, sometimes yell, reminding the Officer that she has a mental disorder and that she did not want to listen to the presentation. Sometimes she followed along.
C. Application of the Law to Facts
2. Police Caution on Right to Silence
[77] The Crown argued that no one told the Accused that she had to speak to Officer K and the Accused was not denied the right to silence. In my view, while her right to silence was read to her upon arrest at her residence, the Accused also requested to speak to a lawyer. The Accused did not understand why the officers needed more interview. She did not speak to a lawyer prior to the interview or at anytime while she was in detention at the C-Detachment. To that extent, if she had any understanding of the right to silence, it was not reinforced by legal advice, by any person, or in any way.
[78] It is clear the officers had a plan to take her statement at the C-Detachment. The Accused was informed about the statement, and that was why she asked for a woman and was informed that Officer K was going to conduct her interview. Her right to silence was not renewed during her detention at the C-Detachment. Given the individual peculiarities of this Accused, as set out above, it is not clear from the evidence that, based on the right that was read to her upon arrest at her residence, the Accused understood that she did not have to talk to the police.
[80] Considering that the Accused has no history with law enforcement and had never been arrested before, and taking into account her mental disorders and level of stress at the time of her arrest, the evidence is not clear that the Accused understood her right to silence as she asked for a lawyer. There is no evidence before me that the police officers renewed the caution throughout the Accused was in detention in their custody on November 3, 2022.
[81] I agree with the Accused that failure to inform her about her right to silence, the way she was informed about her right to counsel, is one of the factors that created an atmosphere of oppression in her interaction with the officers at the C-Detachment on November 3, 2022.
3. Inducement or Promise
[82] The Accused argued that her statement was a pre-condition to her release, and it was confirmed to her that it was not going to take long. Officer K never addressed how long the interview would be, kept telling her it would only be a little longer, and the few questions turned into over an hour-long interview. It was argued that this constituted an inducement that vitiated voluntariness.
[85] I agree with the Accused that her impression that she would get to go home after she answered a few questions, confirmed by Officer K, was an inducement, albeit a mild one.
[86] Given this particular Accused’s mental disorders and high level of stress at the time of her arrest and interview, coupled with her lack of experience with the police, this mild inducement operated with other factors and the psychological ordeal she underwent during the interview to create an atmosphere of oppression in her interaction with the officers at the C-Detachment on November 3, 2022.
4. Oppression
[90] I consider the factors and circumstances set out in Otis at paras. 30-31 and Oickle, at paras. 42 and 71. In this case, the Accused has borderline personality disorder, post-partum depression, anxiety attacks and claustrophobia. She is therefore in the category of vulnerable personalities highlighted in Oickle. She was under a significant amount of stress at the material time. The size of the interview room was small. She was seated in a confined space in front of a desk with a screen and a wall a few steps behind her.
[92] Officer K exerted a significant degree of physical and psychological control over the Accused. She barred her from leaving the interview room and directed her to sit in the confined space with a screen directly in front of her displaying images that caused the Accused emotional pain. The Accused sat in the chair, visibly resigned to the fact that she had no choice but to comply if she wanted to go home instead of to jail. At no time through all of this did any officer tell the Accused that she did not have to continue talking to any of them.
[93] Prior to starting the interview, Officer H and Officer K did ask the Accused about food, water, sleep, medication, and breaks. However, as stated above, oppression in the context of voluntariness is more than a list that can be checked off. Further, when it mattered most, Officer K failed to provide the break she promised, despite her knowledge that her subject suffered from mental disorders. [Emphasis by PJM]
[94] The Crown argued that the Accused did not ask for a break. In my view, she did not have to use the word “break”. Officer K did not consider the Accused’s mental state even in the face of the Accused’s pleas and references to her pain (i.e. “it hurts”) and her mental health disorders. In my view, this Accused’s reactions in the November 3 Interview video were not the ordinary “feeling” referred to in R v Pettitt, 2021 ABQB 124 at paras 42–45. The officers’ actions overpowered the Accused’s already vulnerable will to the point she gave up and continued talking to them so that she could at some point be released and be given her phone.
[95] On the evidence, the officers’ actions together with all the above factors, created an environment so oppressive that the Accused’s free will was overborne in making an independent choice to speak to the officers or to remain silent during her detention at the C-Detachment on November 3, 2022.
5. Scope of Police Persuasion
[96] The Crown presented the facts of Singh and Pettit in arguments. Those facts are distinguishable from the facts before me. None of the accused in those cases had a mental health disorder. There was no evidence that Mr. Pettitt suffered from any medical condition that caused any distress during either interview. They were both cautioned. Mr. Pettitt had experience with the police. Mr. Singh consulted with counsel before his interview.
[97] The facts and circumstances of this case are similar to the facts in Otis where the Accused had cognitive challenges and experienced psychological disintegration caused by the persistent interrogation of a police officer, despite several requests to stop, which was found to be an “abuse of the authority and latitude” latitude granted to police officers.
[98] The law as it stands does not permit the police to ignore the Accused’s freedom to choose whether to speak or not. In this case, the officers’ persistence in continuing their interrogation of the Accused, despite her mental state and repeated assertions that she wished to go home, created a reasonable doubt that any subsequently obtained statement was the product of her free will to speak to the officers.
V. Conclusion
[100] I am satisfied that the Crown has not proved beyond a reasonable doubt that the statements made by the Accused in the Contested November 3 Interview and the November 3 Cellblock Interactions were voluntary. They are inadmissible at the trial of this case.
[November 29, 2024] Charter s.8: Police Expertise and Indiscernible Items on Video, Remoteness of Information [Rahman J.]
AUTHOR’S NOTE: This case underscores the importance of judicial scrutiny when assessing the reliability and objectivity of police observations in search warrant applications, as well as the timeliness of the information used to support those applications. It serves as a cautionary tale about the dangers of over-reliance on police expertise without tangible evidence and reinforces the need to adhere to constitutional standards for searches.
Key Points:
- Police Observations Are Not Beyond Question:
- Police officers, like any other witnesses, must be held to the same standard of credibility and reliability in their observations. The assumption that officers possess superior observational abilities cannot replace objective evidence.
- When police claim that contraband (e.g., a handgun) is visible in surveillance footage or other evidence, that claim must be objectively verifiable. If the contraband cannot be clearly identified on the footage, the officer’s belief cannot meet the standard of objective reasonable grounds.
- Judicial Oversight on Search Warrants:
- Judges must rigorously evaluate the evidence presented in support of a search warrant. Observations based on “expertise” or “confidence” alone are insufficient if they are not grounded in observable facts.
- Accepting unverifiable police observations risks expanding police powers in ways that undermine the constitutional protections under s.8 of the Charter against unreasonable searches and seizures.
- Staleness of Information:
- The timeliness of the evidence supporting a search warrant is critical. Here, the six-week delay between the observation of the accused with a handgun and the application for the search warrant undermined the reliability of the belief that the handgun would still be at the accused’s residence.
- Handguns are inherently portable, and absent additional evidence to suggest continuity (e.g., repeated sightings or corroborative information), the passage of time erodes the reasonable connection between the observed conduct and the location being searched.
- Implications for Judicial Review:
- The standard for issuing a search warrant is objective reasonable grounds, not subjective belief. This standard requires more than confidence or intuition—it requires evidence that can be objectively reviewed and justified in court.
- A failure to meet this standard can result in exclusion of the evidence obtained through the search under s.24(2) of the Charter, particularly if the breach undermines the integrity of the justice system.
Practical Implications for Counsel:
- Challenge Subjective Observations: Defense lawyers should carefully scrutinize police observations that serve as the basis for search warrants, particularly when those observations rely on unverifiable claims or “expertise.”
- Examine Staleness of Information: Where there is a significant delay between the conduct observed and the warrant application, counsel should argue that the connection between the information and the location to be searched has become too remote to justify the search.
- Reinforce the Standard of Objective Reasonableness: This case reinforces the necessity for courts to hold police to the same evidentiary standards as any other witness, ensuring that constitutional protections are not undermined by speculative or unsubstantiated claims.
[1] The accused/applicant, Toshjaih Williams, is charged with various firearms-related offences. He applies to exclude evidence, including a firearm, seized from his home pursuant to a search warrant. The applicant contends that there were insufficient grounds for the warrant’s issuance. The applicant alleges three problems with the information to obtain (ITO) the search warrant. First, the applicant arguesthat the ITO has insufficient grounds to establish that an offence was being committed. He says that the video footage the police relied on to allege that he was holding a gun does not support that assertion. Second, the applicant alleges that there were insufficient grounds to establish that a firearm would be found in his home. The applicant contends that the affiant relied on stereotypical generalizations about how someone who has a gun would behave and that there were insufficient grounds to support finding a firearm in his home six weeks after he was allegedly seen carrying one. Finally, the applicant argues that there was insufficient evidence in the ITO to establish that he was the person seen with the firearm. He argues that the breach of his Charter rights warrants exclusion of the evidence seized pursuant to the warrant.
[3] For the reasons that follow, the application is granted. There were insufficient grounds to establish that an offence had been committed. The basis for believing that the applicant had a gun was not objectively reasonable. It follows that there was also insufficient evidence to establish that a credibly-based probability that there was a gun in the applicant’s home. The warrant should not have issued as there was no basis to establish the two most important pre-conditions….
2. Background to the issuance of the search warrant
[4] The search warrant at issue in this case arose out of an investigation that police conducted in response to a 911 call about two males chasing another on Kingknoll Drive in Brampton. The 911 caller said that at least one of the males was in possession of a black handgun. The caller said that the four people involved were associated to two black vehicles, an Audi and a Volvo. The vehicles left the area before police arrived. The police believed that the applicant was driving the Volvo.
[6] The affiant explained that he reviewed an occurrence report authored by another officer, Cst. Said….
[7] A black Volvo station wagon arrived a short time later and parked beside the Audi. The driver was a Black male with a blue hoodie. The passenger was a Black male, six feet tall with a skinny build and black t-shirt and white jogging pants. The Volvo’s driver and passenger “exited the vehicle and chased a passenger of the Audi westbound on Kingknoll Drive.” Cst. Said testified that the Volvo’s driver had a black item in his hand that was “believed to be a firearm.” It is this observation of the firearm that formed the sole basis for believing the Volvo’s driver had possession of a firearm.
[8] Both of the Volvo’s occupants ultimately returned to that car and left the area. The driver of the Audi also returned to his car and left in the same direction as the Volvo.
[9] The affiant also reviewed video of the incident and added some details to the foregoing. He added that the Audi’s driver returned to the Audi shortly after getting out of it. The Audi’s driver accessed the car’s trunk and retrieved an item “believed to be a handgun” which he then concealed in his waistband. After the chase described above, the two occupants of the Volvo searched the Audi before leaving the area. When they Audi driver returned, the affiant said that “he pulls [an] object from his waistband believed to be a handgun.”
3. The application to set aside the warrant
3.1. Reasonable grounds to believe an offence had been committed
[12] The affiant set out his basis to believe an offence had been committed under the heading “Reasonable Ground to Believe that an Offence Has Been Committed.” The affiant detailed his review of a report authored by Cst. Said. The report details the officer’s observations of the video of the incident. The affiant sets out what is presumably in his colleague’s occurrence report. As already mentioned, he says that a black Audi and a black Volvo are seen parked next to each other. The applicant is alleged to be the driver of the Volvo. After giving a description of the Volvo’s driver, the affiant states “Video captures the driver of the black Volvo had a black item in his right hand, believed to be a firearm.” The affiant then explains that he reviewed video of the incident himself. The affiant also says that “On video, the driver of the Volvo was observed carrying a small black object believed to be a handgun.” There is no further description of the item. The police included screenshots of the black Volvo. They did not include any screenshots of the male carrying the black item that was believed to be a handgun. [Emphasis by PJM]
[13] At the hearing of this application, the applicant filed still images from the video depicting the two occupants of the black Volvo, including the person alleged to be the applicant. Crown counsel agreed that these stills accurately represent the portions of the video footage that the affiant would have been referring to when he said he saw the Volvo’s driver with a handgun. It is fair to say that the video is not sufficiently clear to make out exactly what is in the Volvo’s driver’s hand.
[15] I cannot agree with the respondent that the ITO contained reasonable grounds to believe that an offence had been committed. To be clear, the offence alleged here is that the applicant, not somebody else, possessed a firearm. The video footage in this case cannot support the officers’ conclusion that the Volvo’s driver (whom the police alleged was the applicant) had a handgun. The still image from the video, which the respondent acknowledged was a fair representation of what the officer would have looked at, does not show an object clearly enough that one can say it is a handgun. This may have been why the affiant used the phrase “believed to be a handgun” rather than saying that he saw a handgun. Even accounting for a poor choice of language by the officer,2 the video does not depict the object in the driver’s hand clearly. This may also explain why the officers could give no better description than to say that the item was black. Respectfully, no amount of expertise can permit an officer to conclude that an indiscernible black item is a handgun. The 911 caller’s information is similarly unhelpful in adding to the grounds respecting the Volvo’s driver. The caller said that at least one of the males had a handgun. The police also alleged that the Audi’s driver possessed a handgun. The affiant said the video depicted the Audi’s driver placing a gun in his waistband. Therefore, the 911 caller’s observation of a handgun does not add to the affiant’s grounds about the Volvo’s driver having a handgun, because the 911 caller could have been referring to the Audi’s driver possessing a handgun. [Emphasis by PJM]
[16] The ITO did not contain sufficient grounds to establish that an offence had been committed. That is a sufficient basis to set the warrant aside and find that the applicant’s s. 8 right against unreasonable search and seizure was breached….
3.2. Insufficient grounds that the items sought were in the place to be searched
[17] The applicant alleges that the ITO did not support a reasonable belief that the firearm would be in the place to be searched. Strictly speaking, since I have found that there were insufficient grounds to believe that the applicant (as the Volvo’s driver) possessed a handgun, it stands to reason that there could not have been sufficient grounds to support finding a handgun at the applicant’s home. However, I will address the applicant’s alternative argument that, even if the police had seen him with a gun, that there were insufficient grounds to support that there was a gun in his home.
[18]….Respecting the firearm, the affiant included the following paragraph:
….It is my experience that subjects do not leave firearms unattended and tend to keep them close to them….
[19]….The applicant says that, apart from the affiant’s improper generalizations and behavioural assumptions in the underlined passage above, there was no basis to believe that there would be a firearm at the applicant’s home six weeks after the police allegedly saw him with a gun. In support of his argument that the police relied on the applicant relies on the Supreme Court’s decision in R. v. Morelli 2010 SCC 8. In Morelli, Fish J. cautioned (at para. 79) that, “[t]o permit reliance on broad generalizations about loosely defined classes of people is to invite dependence on stereotypes and prejudices in lieu of evidence.”
[20] There are really two aspects to this alleged deficiency. One relates to the affiant’s alleged reliance on expertise and where someone will keep a firearm, and the other relates to the remoteness of the event. Regarding the first issue, I do not consider the affiant’s assertion about the fact that someone would keep a gun with them to be an improper generalization. That someone would keep a firearm close to themselves, or carry it with them, is a commonsense proposition. However, I do agree with the applicant that the information here was stale-dated and there was an insufficient information in the ITO to support reasonable grounds to believe that the firearm would still be in the applicant’s possession.
[21] The affiant’s assertion about people keeping firearms near themselves was simply stating a commonsense proposition. Illegal firearms are a valuable commodity. As illegal items, they are hard to come by. They are generally not purchased as mere curiosities or collector’s items. Someone who acquires an illegal handgun usually does so to carry it for protection or aggression or both. It stands to reason that, unless it is borrowed or rented, a person who owns a firearm will keep it with them or somewhere close to themselves. If someone is at home, they would probably have their illegal gun with them….
[23] The second issue – the remoteness of the information – is not resolved by either common sense or expertise. Six weeks had passed between the July incident and the issuance of the warrant. The affiant did not address why he believed that the firearm would still be in the applicant’s possession six weeks after he had allegedly been seen running with it. Unlike his assertion that people keep firearms with them, he made no such assertion about his experience about how long people typically keep firearms. How long someone holds onto an illegal item like a firearm is not something that an issuing justice can infer as a matter of common sense. The affiant offered no opinion on this issue. Even if the ITO had established that the applicant possessed a gun, it did not establish a reasonable probability that the applicant would still have possessed the gun. Had the search warrant been sought closer to July 15, 2023 – perhaps within a week or two – it may have been more reasonable to infer that the possessor of the gun would still have it. There is no magic number of days that will constitute sufficient temporal proximity to infer continued possession. But where six weeks have passed, the timing of the first-observed possession and continued possession is too remote. [Emphasis by PJM]
3.4. Conclusion on section 8 of the Charter
[25] The applicant has established that the warrant to search his home ought not to have been issued and has therefore established a breach of his s. 8 Charter right. It is therefore necessary to conduct the three-step Grant inquiry to determine whether the Charter breach here warrants exclusion of the evidence: R. v. Grant, 2009 SCC 32.
[28] In this case, I appreciate that the ambiguity in the description of the black item would have been apparent to the issuing justice. But that was only part of the problem here. The issuing justice was not provided with the image shown to this court purportedly displaying the observation of the gun. While there is no rule that an affiant must include photos of observations that they rely on, there is a rule that an affiant must make full, fair, and frank disclosure. That did not happen in this case. Even though I am not finding that the police deliberately misled the justice, the drafting of the warrant application, and failure to be full, fair, and frank, demonstrates a level of carelessness that moves this breach away from the good faith end of the spectrum. Negligence, carelessness, or inattention to constitutional standards in obtaining the warrant can “tip the scales in favour of exclusion” even where there is no impropriety or bad faith: R. v. Rocha, 2012 ONCA 707, at para. 43. Consequently, I find that the breach was serious enough that this first step of the Grant inquiry favours exclusion.
[29] The second step in the Grant…
….The respondent acknowledges that the search of a dwelling will always involve a significant impact on a Charter claimant’s Charter-protected interests. The impact on the applicant’s Charter-protected interests here was significant. This step of the Grant inquiry strongly favours exclusion.
[30] Finally, the third step of the Grant….
….On this step of the inquiry, a court may consider the reliability of the evidence, the importance of the evidence to the prosecution’s case, and the seriousness of the offence at issue: R. v. Beaver, 2022 SCC 54, at para. 129….
….The Crown has no case once the evidence is excluded. Society’s interest in an adjudication on the merits is high in this case.
[31] The final balancing of the three lines of inquiry favours exclusion of the evidence. As the Court of Appeal observed in R. v. McGuffie, 2016 ONCA 365, at para. 63, where the first two lines of inquiry strongly favour exclusion, the third line of inquiry will rarely tip the balance in favour of admission. This is not one of those exceptional cases where the third line of inquiry can save the evidence from exclusion. Although McGuffie makes the balancing exercise somewhat automatic, it is important for the court to emphasize here, in plain language, why this balancing results in excluding evidence.
5. Conclusion
[33] The application is granted. The evidence seized from the applicant’s house is excluded from his trial.
[November 28, 2024] s.276: Past Sexual History and Fair Procedure [Reasons by Favreau J.A with K. van Rensburg and L.B. Roberts JJ.A. concurring]
AUTHOR’S NOTE: This case highlights the importance of procedural fairness in the application of s.276 of the Criminal Code, which governs the admissibility of evidence regarding a complainant’s past sexual history in sexual offence cases. While the provision seeks to protect complainants from prejudicial and irrelevant inquiries, it also requires adherence to fair trial procedures to ensure the rights of the accused are not infringed.
Key Points:
- The Purpose of Section 276:
- The provision aims to prevent reliance on the twin myths: (1) that a complainant’s past sexual conduct implies a greater likelihood of consent, and (2) that it diminishes their credibility.
- However, evidence of past sexual conduct may still be admissible if it is relevant to an issue other than the twin myths and passes the rigorous admissibility test set out in the section.
- The Importance of an Admissibility Hearing:
- Section 276 mandates a hearing to determine the admissibility of such evidence, ensuring that both parties have the opportunity to present arguments on whether the evidence meets the statutory criteria.
- Procedural fairness requires that these rulings be made transparently and in advance of the trial’s conclusion, so parties can adjust their strategies accordingly.
- The Error in This Case:
- Here, the trial judge excluded the evidence at the judgment stage without first holding a proper admissibility hearing or giving the parties an opportunity to address the issue.
- This procedural irregularity undermined the fairness of the trial by denying the accused the chance to argue for the relevance and admissibility of the evidence.
- Impact on the Outcome:
- The appellate court found that the trial judge’s approach constituted a serious error, as it deprived the accused of their right to procedural fairness and the opportunity to respond to the exclusion of the evidence.
- This procedural failure was significant enough to warrant a new trial.
Practical Implications for Counsel:
- Proactive Applications Under s.276:
Defense counsel should anticipate any potential challenges under s.276 and proactively seek a hearing to address the admissibility of such evidence well before the conclusion of the trial.
- Objections to Procedural Irregularities:
If a trial judge raises s.276 issues late in the proceedings, counsel should object immediately and request a formal hearing to address the evidence in question.
- Preserving the Record:
Ensure that all objections and arguments related to procedural fairness are fully articulated on the record to support potential grounds for appeal.
Broader Lessons:
This case serves as a reminder that while s.276 aims to protect the integrity and dignity of complainants in sexual offence cases, it must be applied in a manner that respects the accused’s right to a fair trial. Courts must ensure that admissibility rulings are conducted transparently and at the appropriate stage of proceedings, with full participation from both parties.
A. OVERVIEW
[1] The appellant was convicted of kidnapping, assault, assault with a weapon, uttering death threats and a human trafficking offence – exercising control to facilitate exploitation….
[2] The appellant appeals his convictions. He argues that the trial judge improperly used s. 276 of the Criminal Code, R.S.C. 1985, c. C-46, as a shield to ignore all of the complainant’s evidence regarding her work as a sex worker. He also submits that the trial judge made several errors in her assessment of the complainant’s credibility.
[3] I agree with the appellant that the trial judge erred in holding that she could not consider any of the complainant’s evidence regarding her work as a sex worker. At trial, the complainant was cross-examined about her prior interactions with the appellant, including discussions they had about him potentially helping with her work as an escort and their plan for him to recover money that an acquaintance of his had stolen from her. The Crown did not object to that evidence and the trial judge did not raise any concerns during the complainant’s crossexamination on these topics. In closing submissions, the appellant relied on aspects of this evidence as part of his challenge to the complainant’s credibility. In her reasons, while the trial judge said that s. 276 of the Criminal Code did not apply, she nevertheless stated that “any testimony and any inconsistencies in any testimony which touch[ed] upon [the complainant’s] sexual activities or practices or any alleged involvement in any way with the sex trade [would] not factor into [her] assessment of credibility or reliability or [her] decision in any way”. She thereby purported to ignore significant portions of the complainant’s evidence on the basis that it engaged the twin myths without identifying the specific evidence she disregarded or explaining why that evidence engaged the twin myths.
[4] In my view, the trial judge breached the appellant’s right to procedural fairness because he was not given an opportunity to address the admissibility and proper use of this evidence after it had been led at trial. In addition, the trial judge erred in disregarding some of the complainant’s evidence regarding her work in the sex trade. The appellant relied on this evidence in ways that did not engage the twin myths. Most notably, he relied on this evidence to attack the complainant’s credibility by highlighting significant discrepancies in her testimony, especially regarding the appellant’s motive for the alleged kidnapping and other offences. The lack of procedural fairness in the manner in which the trial judge ignored this evidence amounts to a miscarriage of justice and therefore this is not an appropriate case for the curative proviso. On this basis, I would allow the appeal.
C. ANALYSIS
(1) Section 276 of the Criminal Code and this court’s recent decision in R. v. A.M.
[28] Section 276 of the Criminal Code restricts the admissibility of evidence regarding a complainant’s prior sexual activities in proceedings “in respect of” certain offences. In R. v. A.M., 2024 ONCA 661, this court recently explained the history and objectives of s. 276. For this appeal, it is not necessary to repeat the history and objectives, but they form the background to the reasoning in this decision.
[32] None of the offences charged in this case are offences listed under s. 276(1)….
[33] When the appeal was argued, this court had under reserve its decision in A.M. That decision has since been released. In A.M., the court confirmed that s. 276 does not apply categorically to all proceedings where an accused is charged with a sexual service or human trafficking offence but not a listed offence. Rather, whether a listed offence is implicated in the proceeding, and accordingly whether s. 276 applies, must be determined on a case-by-case basis having regard to the charges, the Crown’s proposed evidence, and whether the defence proposes to lead evidence of a listed offence. The court reached this conclusion as a matter of statutory interpretation and in accordance with the Supreme Court of Canada’s decision in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579. At para. 92, van Rensburg J.A. summarized her conclusion on the applicability of s. 276 to nonenumerated offences:
In summary, the issue is whether the proceeding is, in substance, “in respect of” one of the listed offences. It is incorrect to adopt the categorical approach taken in a number of cases that s. 276 will always apply to prosecutions for sexual services or human trafficking offences, with the result that any offence that is analogous to, or shares some common features with, a listed offence is essentially read into s. 276. Instead, the application of s. 276 to proceedings in respect of nonenumerated offences must be determined “in the context of [the] particular prosecution, taking into account the charges, the nature of the allegations, and the subjects about which the accused seeks to cross-examine the complainant”. [Citations omitted.]
(2) The trial judge’s treatment of the complainant’s prior sexual conduct
[38] In this case, counsel had agreed, from the outset, that the offences charged were not listed offences to which s. 276 of the Criminal Code applied. Consistent with this agreement and her own determination that the provision had no application, the trial judge did not purport to explicitly apply s. 276. However, on her own initiative and only after closing submissions had been delivered, she effectively excluded a broad area of evidence on the basis that it improperly engaged the twin myths. The parties were first informed of this when the trial judge delivered her reasons in which she explained that she had disregarded “any testimony which touch[ed] upon [the complainant]’s sexual activities or practices or alleged involvement in any way with the sex trade”.
[39]…. I agree with the appellant that the trial judge’s approach to the issue was procedurally unfair and that she erred in excluding from her consideration all of the complainant’s evidence that touched on her alleged involvement with the sex trade….
(a) The appellant’s reliance on the complainant’s prior sexual conduct
[41] As reviewed above, after the evidence was completed, counsel delivered written, rather than oral, closing submissions. The submissions made on behalf of the appellant focused almost entirely on the complainant’s credibility. The complainant’s work in the sex trade was emphasized in the first few pages and addressed repeatedly thereafter. I would characterize the frequent references to the complainant’s work as a sex worker as falling into three categories.
[42] First, the appellant submitted that there were inconsistencies in the complainant’s evidence regarding whether she had ever worked as a sex worker. She initially stated that she would never do that, but then provided evidence that she had performed some sex work as a dominatrix at a Toronto spa, that she had worked at a strip club in Windsor and, according to her friend’s evidence, she had worked as an escort. The appellant also suggested that, if the complainant had in fact encountered the “fake millionaire” as she claimed, it would have been while working as an escort.
[43] Second, the appellant submitted that the complainant’s evidence that he kidnapped and assaulted her in order to coerce her into becoming an escort made no sense given her evidence that she already had an agreement with him to obtain his assistance should she decide to work as an escort. The appellant urged the court to find that the alleged motive, which lay at the core of the complainant’s evidence about the assaults, would have been illogical in the circumstances.
[44] Third, the appellant argued that the complainant’s attempt to link the appellant’s motive for the kidnapping and other offences to the theft of money by the “fake millionaire” made no sense. The appellant emphasized that the complainant’s account of the circumstances in which she claimed to have encountered the “fake millionaire” were belied by her friend’s testimony, and that her evidence regarding the amount he purportedly stole from her changed over the course of her testimony from $200 to $800. The appellant also highlighted evidence given by the complainant that the appellant had intended to abduct and kidnap the “fake millionaire” in the same way he abducted her. He submitted that her evolving evidence in this respect further undermined her credibility.
[45] The Crown did not take the position, in written submissions or otherwise, that it would be improper for the trial judge to rely on the evidence the complainant gave at trial regarding her work in the sex trade. In fact, the Crown relied on the complainant’s work in the sex trade to argue that she was particularly vulnerable. In addition, the Crown referred to the money recovered from the “fake millionaire” as an underlying motive for the offences.
[46] As mentioned above, before releasing her reasons, the trial judge did not raise any concerns with the parties’ reliance on this evidence nor did she solicit further submissions on this point.
(b) The trial judge erred in her approach to the complainant’s prior sexual conduct
[47] In her reasons, the trial judge explained that, while s. 276 did not apply per se, she was nevertheless relying on the principles underlying s. 276 to disregard all of the complainant’s evidence regarding her work in the sex trade:
There was also a great deal of questioning in relation to [the complainant]’s sexual practices and alleged involvement in a sex trade, possibly encompassing the origin of the debt previously discussed.
There is obviously no sexual activity that is the subject matter of these charges, which is clearly why the section doesn’t apply. However, it was, in my view, implied that I should believe that she was more likely to voluntarily engage in escort services and also that she was less credible because of it. In my view, that is wholly inappropriate as it attempts to promote thinking which is directly in line with the twin myths.
I will, therefore, not be considering testimony relating to those areas in making a determination in this case. To be more specific, any testimony and any inconsistencies in any testimony which touch upon [the complainant’s] sexual activities or practices or alleged involvement in any way with the sex trade will not factor into my assessment of credibility or reliability or my decision in any way. [Emphasis added.]
[48]….the complete exclusion of the complainant’s evidence regarding her involvement in the sex trade led to the same mischief as in A.M. because evidence material to the appellant’s defence was improperly disregarded such that he was prevented from making full answer and defence to the charges against him. Here, the trial judge’s approach was problematic both as a matter of procedural fairness and substantively.
[51] With respect, while it is commendable and in fact necessary for trial judges to guard against the misuse of evidence that could engage myths and stereotypical thinking, that does not mean that all evidence regarding a complainant’s involvement in the sex trade should be disregarded in every case. As explained in A.M., at para. 122, s. 276 seeks to guard against “inferences from the sexual nature of the activity, not inferences from other potentially relevant features of the activity: ‘If evidence of sexual activity is proffered for its non-sexual features, such as to show a pattern of conduct or a prior inconsistent statement, it may be permitted’” [citations omitted]. The same principle necessarily applies to the admissibility of evidence regarding a complainant’s prior sexual activity for nonenumerated offences.
[52] In this case, there is no doubt that the complainant’s cross-examination treaded into areas of marginal and questionable relevance. For example, she was questioned extensively about the nature of her work at the spa in Toronto and at the strip club in Windsor. This reasonably could have given rise to the trial judge’s concern that she was being invited to believe that the complainant was less credible because of her prior work in the sex trade.
[53] Yet, there were other areas of evidence related to the complainant’s sex work that were clearly relevant to her credibility generally and to the believability of her explanations for the appellant’s motive for the kidnapping and other offences, and that did not engage myths and stereotypical thinking. For example, the complainant claimed that the “fake millionaire” stole money out of her purse, but her explanation for how the debt arose and the amount she claimed he owed her changed over the course of her evidence. While noting the defence had “criticized” the complainant in the course of cross-examining her “for inconsistent testimony in relation to details” of the “fake millionaire” incident, the trial judge did not examine those inconsistencies in her analysis. On this issue, the trial judge limited her findings to the complainant “[perceiving] that there was a $200 debt owed to her by [the appellant]” and that “[t]here was ill will between them related to that debt”.
[54] Another example, as submitted by the appellant, was the inconsistency between the complainant’s evidence that the appellant was pressuring her to work for him as an escort during the kidnapping and assault and her evidence that they had already reached an agreement for terms on which he would assist her with her work as an escort. The trial judge did not refer to any of this evidence or the appellant’s submissions on these issues. She did, however, find as a fact that the appellant’s motive was to force the complainant to work for him as an escort.
[56] In the circumstances, I find that the trial judge erred by excluding all evidence of the complainant’s prior work in the sex trade, including her communications with the appellant about this topic, without first receiving submissions on the issue. If she had received submissions, it would have then been incumbent on the trial judge to distinguish between the different areas of evidence on this topic to determine admissibility and the proper use of the evidence….
….But the trial judge’s all or nothing approach to this evidence was both procedurally unfair and wrong in principle. As I explain below, this error amounts to a miscarriage of justice.
(3) The proviso does not apply
[68] Ultimately, the total exclusion of evidence related to the complainant’s alleged involvement in the sex trade without notice, and without an opportunity to make submissions or for the appellant to re-orient his defence undermined the fairness of the trial. This was a miscarriage of justice. The proviso cannot be applied to uphold the convictions.
D. DISPOSITION
[70] I would allow the appeal and order a new trial.
