The Defence Toolkit – August 7, 2021

This week’s top three summaries: R v Young, 2021 ONCA 535: #hearsay – penal interest exception, R v Olson, 2021 MBQB 143: s.8 and CI info, and R v Boudreau, 2021 ABPC 175: #conflict of interest Crown.

R v Young, 2021 ONCA 535

[July 26, 2021] Hearsay Exception: Statement against Penal Interest [Majority Reasons by M. Jamal J.A. with R.G. Juriansz J.A. concurring. Separate Concurring reasons by Coroza J.A.]

AUTHOR’S NOTE: Declarations against penal interest are an exception to hearsay inadmissibility. There is seldom evidence of them occurring. Here, the evidence of a father’s confession to the sister of the accused was disallowed from presentation before a jury. The trial judge’s error was rooted in the environment of the communication: a confession by a father to his daughter while he asked her to keep it secret, for now as he intended to show up at the trial and testify for the defence. He passed away before that could occur. The case involved the importation of cocaine from Jamaica. The case provides a short overview of the law and a good application for the defence.  

Introduction

[1] On April 5, 2017, the appellant, Ms. Shauvonne Young, was arrested at Toronto Pearson International Airport on her return from Jamaica and charged with importing 1.9 kilograms of cocaine. Canadian Border Services Agency (“CBSA”) officers found the cocaine inside four containers of Metamucil, a fibre supplement, as soon as they opened her suitcase.

[2] At trial, the only issue was knowledge — whether the appellant knew that she was importing cocaine. She testified that a family friend had given her the containers as a gift for her grandmother. She believed they contained Metamucil blended with roots and seeds to form a Jamaican herbal remedy.

[3] The appellant applied before trial to introduce a hearsay statement that her late father allegedly made to her half-sister. Their father was a cocaine addict and convicted drug dealer and trafficker with a long criminal record. He allegedly confessed to the appellant’s half-sister that he had arranged for the drugs to be given to the appellant and had used her to bring them back to Canada. He said he owed a lot of money to his drug dealer and had been forced to provide them services. He begged his daughter not to tell the appellant “yet” about what he had done and promised to come to court to confess. He also said he was concerned for his own safety. Because the appellant’s half-sister was concerned that telling the appellant might endanger their father or the appellant, she complied. Less than four months later, their father died from a cocaine and fentanyl overdose.

[4] The application judge, André J. (“application judge”), refused to admit the statement under the declaration against penal interest exception to the hearsay rule or under the principled approach to hearsay: R. v. Young, 2018 ONSC 5480. The appellant was then tried by judge and jury and convicted of importing cocaine.

[5] The appellant raises two grounds of appeal from her conviction. First, she says the application judge erred by refusing to admit the hearsay statement under either the penal interest exception to the hearsay rule or the principled approach to hearsay and that he should have applied a relaxed standard for the admissibility of defence evidence to avoid a miscarriage of justice….

[6] For the reasons that follow, I would allow the appeal and order a new trial. The application judge misapprehended the evidence in applying the declaration against penal interest exception to the hearsay rule. On the totality of the evidence, the hearsay statement was admissible under that exception. Because this evidence was critical to the appellant’s defence, its exclusion led to a miscarriage of justice. It is unnecessary to address the appellant’s other arguments.

The Hearsay Evidence

[7] The appellant’s pretrial application to admit the hearsay statement of her late father, Mr. Orville Young, was supported by the affidavit of her half-sister, Ms. Toni Winchester. Ms. Winchester had no criminal record and was not cross-examined on her affidavit. She made these key points in her affidavit:

• The appellant travelled to Jamaica to attend her uncle’s memorial service and returned to Canada on April 5, 2017. On April 5, Ms. Winchester received calls from her father, who wanted to know if she had heard from the appellant. He was unusually persistent. Because this worried Ms. Winchester, she called the appellant but could not reach her.
• Ms. Winchester and the appellant had a difficult relationship with their father. He was in and out of jail and used crack cocaine. He lived with Ms. Winchester briefly in 2015, but they had a falling out because of his drug use. In April 2017 she did not even know where he lived.
• Several days after the appellant returned from Jamaica, Ms. Winchester learned that the appellant had been arrested for importing drugs. Ms. Winchester was surprised because she and the appellant strongly disapproved of their father’s drug use.
• Ms. Winchester confronted her father and asked him to “tell [her] the real deal” about why he kept asking about the appellant when she was delayed at the airport. She explained her father’s response as follows:

He began crying and telling me that he put her in a bad position. He told me that he owed a lot of money to his drug dealer. They had given him a large quantity of drugs, and without money to pay them back, he was forced to provide them services. He told me that he had agreed to have someone hide drugs in a package in Jamaica while [the appellant] was there, and to use her to bring it back to Canada. He told me that his drug dealer had promised him that no one would ever find out, and that this wasn’t the first time he had done something like this. He expressed to me that he was afraid for his own safety now.

He specifically begged me not to tell [the appellant] yet and promised he would attend Court for her and let the Court know what he had done. He told me that he was concerned for his own safety. I did not tell [the appellant] anything about this conversation at the time. I was afraid that if I were to tell her, it might cause danger to my dad, or [the appellant]. As much as my father and I had not seen eye to eye, I believe that if circumstances were different he would do the right thing, come to Court, and tell the truth about what had happened.

My father was born on July 25th , 1964. On July [27th ], 2017, he passed away from an overdose. It was [two] days after his 53 rd birthday. At his funeral in August of 2017, I told [the appellant] for the first time what he had told me. I wish I had said something sooner, but I never imagined that we would lose our father so soon.

[8] The application to admit the hearsay statement included as exhibits Mr. Young’s lengthy criminal record from 1981 to 2017, which included at least nine convictions for drug possession and trafficking, and a coroner’s report confirming that he died of a cocaine and fentanyl overdose.

[9] The application judge refused to allow the hearsay statement to be admitted at trial. He found:

• The statement was not admissible as a declaration against penal interest because Mr. Young did not make the statement to a person and in such circumstances that he apprehended a vulnerability to penal consequences and that any such vulnerability was remote.

[10] The Crown argued that the appellant knew that the Metamucil containers contained cocaine when she imported the drugs into Canada. A CBSA agent found the drugs in her suitcase during a secondary customs inspection. When the agent opened the suitcase, the Metamucil containers were right on top in a black plastic bag. The containers had no security seal and were abnormally solid. The agent opened a container and saw a layer of Metamucil on top of a plastic bag. The substance inside the plastic bag was tested and was cocaine.

[11] The Crown claimed that the appellant’s motive was financial. It was an agreed fact that the street value of the drugs sold at the gram level was between $155,000 and $194,000 and that a drug courier would typically make between $1,000 and $5,000, plus expenses, or sometimes a percentage of the product as payment instead. At the time of trial, the appellant was a 34-year-old single mother with five children (four when she was charged), ranging in age from 18 years to 2 months, and had a $2,500 monthly mortgage payment that she split with her mother….

[12] The appellant testified in her own defence. Her evidence was that she flew to Jamaica on March 31, 2017 for a celebration of the life of her uncle. He had recently died in Canada, but because many family members could not travel from Jamaica a celebration of life was organized to take place there on April 1, 2017. The appellant would then return to Canada the next day.

[13] One of the appellant’s cousins picked her up from the airport in Jamaica and they went to the family home. There, a man named “Haja” introduced himself to her. He said he knew her parents and that she looked a lot like her father. The appellant had not met Haja before. She later learned his real name was Simian Elliott.

[14] The appellant saw Haja again the next day at the celebration of life but did not speak to him. He was talking to her family members and seemed like a nice guy. The appellant’s cousins asked her to extend her stay in Jamaica. She agreed and believed Haja may have overheard this. She later changed her plane ticket to return on April 5.

[15] On April 5, Haja came to the family home and said he was “happy to catch” the appellant. He gave her a black plastic bag containing four Metamucil containers and said it was for her Grandma Pat, her father’s mother. The appellant did not think this was unusual because she said in Jamaica people blend ginger root, beetroot, mango seed, and June plum seed with Metamucil to ward off evil spirits and as a form of rejuvenation for the body. The appellant looked in the plastic bag, saw the Metamucil containers, and put everything in her suitcase. Although she did not use this herbal remedy herself, the elderly did, so she thought her grandmother would be happy for the gift. The appellant was not suspicious. Haja was a friend of the family and she had no reason to distrust him. She testified that she had no idea that the containers contained drugs.

[16] When the appellant landed at Pearson Airport, she was selected for secondary screening. The CBSA agent inspected her suitcase and found the cocaine.

[17] The appellant was permitted to introduce evidence of a third-party suspect — her father. She suggested that he had a motive, the opportunity, and the disposition to be responsible for the importation. Her father’s lengthy criminal record was admitted into evidence, which included many convictions for drug possession and trafficking. It was also an agreed fact that he died from a cocaine and fentanyl overdose.

[18] The appellant testified that she believed her father had arranged for Haja to transport the drugs through her without her knowledge. She did not have a close relationship with her father. He had drifted in and out of her life because of his drug addiction and criminal lifestyle. But they were trying to rebuild their relationship and she had spoken to him about her upcoming trip to Jamaica.

Hearsay – The Principles

[22] All relevant evidence is admissible, subject to certain exceptions, one of which is the rule against hearsay evidence. An out-of-court statement of a declarant is hearsay if (1) the statement is adduced to prove the truth of its contents and (2) there is no contemporaneous opportunity to cross-examine the declarant. Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 34-35, 42, and 56.

[23] The Supreme Court summarized the framework governing the admissibility of hearsay evidence in Khelawon, at para. 42 and R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15:

[24]      The criteria for the declaration against penal interest exception to the hearsay rule were distilled by Watt J.A. in R. v. Tash, 2013 ONCA 380, 306 O.A.C. 173, at para. 88:

The principles that govern the admissibility of declarations against penal interest are these:

i.            the declaration must be made to such a person and in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result;

ii.            the vulnerability to penal consequences must not be remote;

iii.           the declaration must be considered in its totality, so that if, upon the whole tenor, the weight of it is in favour of the declarant, the declaration is not against his or her interest;

iv.           in a doubtful case, a court might consider whether there are other circumstances connecting the declarant with the crime, and whether there is any connection between the declarant and the accused; and

v.            the declarant must be unavailable because of death, insanity, grave illness that prevents the declarant from giving testimony even from a bed, or absence in a jurisdiction to which none of the court’s processes extends.

R. v. Demeter, 1977 CanLII 25 (SCC), [1978] 1 S.C.R. 538, at p. 544; R. v. O’Brien, 1977 CanLII 168 (SCC), [1978] 1 S.C.R. 591, at p. 600; and R. v. Lucier, 1982 CanLII 153 (SCC), [1982] 1 S.C.R. 28, at pp. 32-33.

Application to this Case

[28] On the first disputed point — whether Mr. Young apprehended a vulnerability to penal consequences (criterion (i)) — the application judge ruled:

Regarding the first criterion, I am not persuaded that the declaration was made to such a person and in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result. Mr. Young made a statement to his daughter who had a very difficult relationship with him growing up; however, he lived with her from July 2015 to November 2015 before having a falling out due to his continued drug use.

Mr. Young must have had confidence in the fact that his statement to Ms. Winchester would remain confidential given his caution to her that she should not tell [the appellant] about what he had said to her.

Furthermore, there is nothing in the circumstances in which the statement was allegedly made that Mr. Young should have apprehended a vulnerability to penal consequences as a result.

[29] On the second disputed point — whether Mr. Young’s vulnerability to penal consequences was not remote (criterion (ii)) — the application judge ruled:

[I]t seems to me that the vulnerability to penal consequences were remote given that Mr. Young told Ms. Winchester not to tell [the appellant] about what he had stated to her. He clearly did not contemplate any penal consequences as a result of his statement to Ms. Winchester. To that extent, this criterion has not been met in this case.

[31] Here, I conclude that the application judge materially misapprehended evidence that was crucial to deciding whether to admit the hearsay as a declaration against penal interest. He concluded that Mr. Young should not have apprehended a vulnerability to penal consequences because he “must have had confidence in the fact that his statement to Ms. Winchester would remain confidential given his caution to her that she should not tell [the appellant] about what he had said to her” (emphasis added). But this finding ignores a critical sentence in Ms. Winchester’s affidavit, in which she stated that her father “specifically begged me not to tell [the appellant] yet and promised he would attend Court for her and let the Court know what he had done” (emphasis added). Thus, Mr. Young did not ask his daughter not to tell the appellant what he had done; he asked her not to tell her yet. It was a request to delay telling, not a request to never tell. More importantly, the delay was to allow Mr. Young to confess his crime in court.

[32] This crucial part of Mr. Young’s statement — which the application judge did not address in his reasons — materially changed the nature of the statement from one in which the declarant had an expectation it would be kept confidential, and thus would not have exposed him to penal consequences, to one in which the declarant only asked the recipient to delay telling the appellant and promised to publicly confess his crime in court. Had Mr. Young reneged on his promise, the obvious inference is that he understood that Ms. Winchester would come forward, which indeed she did when he died. Thus, when Mr. Young’s complete statement is considered, Mr. Young certainly should have apprehended a vulnerability to penal consequences by making his statement to Ms. Winchester.

[33] Nor was Mr. Young’s vulnerability to penal consequences remote. Mr. Young promised to come to court to confess his crime. This was not a vague promise to say something at some indeterminate time. The appellant had been arrested and charged. The legal process had begun. His time to confess would come soon.

[34] Finally, that Mr. Young’s statement was allegedly made to his adult daughter, albeit one with whom he had a difficult relationship, does not detract from these conclusions. Even though Mr. Young’s statement was to his daughter, his qualification as to timing combined with his promise to confess in court showed that he appreciated his vulnerability to penal consequences was real and not remote.

[35] I conclude that the application judge materially misapprehended the evidence relevant to criteria (i) and (ii) of Tash and erred in excluding the hearsay statement.

Conclusion

[38] The hearsay statement was admissible under the declaration against penal interest exception to the hearsay rule. Its exclusion impaired the appellant’s right to make full answer and defence to the criminal charge against her and led to a miscarriage of justice. I would allow the appeal on this basis alone.

[39] I would allow the appeal, quash the conviction, and order a new trial.

R v Olson, 2021 MBQB 143

[June 15, 2021] Charter ss. 8/9: Arrest and Search on Confidential Informant Tip [Menzies J.]

AUTHOR’S NOTE: This case provides a good example of what happens when police place too much reliance on Confidential Source tips and fail to do much independent corroboration. When it comes time to back up their actions (whether in an ITO or a warrantless arrest), their duty to protect the informants means they can fall short of establishing reasonable grounds. 

Introduction

[1] On June 16, 2020, in Brandon, Manitoba, the accused was stopped in his car and arrested for trafficking in methamphetamines (meth). His motor vehicle was searched. No meth was found but a lock box was located under the front passenger seat. As the police could not locate the key to the lock box, they forced it open. Inside was found a 9 mm handgun and ammunition for same.

[2] The accused stands charged with five offences relating to the possession and storage of the firearm and one count of breaching a recognizance.

Background

[4] The evidence establishes that in May of 2020, the accused had become a target of an investigation by the Organized Crime Unit of Brandon Police Services (BPS), specifically Constable Dixon.

[5] The accused had been identified as being a trafficker of meth by four different confidential informants. Police had conducted surveillance of the accused and confirmed that the accused drove a black Impala bearing Manitoba Licence plates KLJ 160.

[6] Based on the information of the informants and the surveillance conducted by police, the accused was stopped and searched on May 29, 2020. No evidence was found which would corroborate the accused was involved in the drug trade.

[7] Sometime in early June, an informer advised BPS that the accused was in the black Impala and in possession of meth. This tip was entered on the accused’s file with BPS.

[8] On June 16th , Dixon received a further tip from an informant. Once again, the information was that the accused was in possession of meth and was driving a black Impala. As a result, Dixon decided he had sufficient grounds to arrest the accused and search his motor vehicle. As he was off-duty at the time, Dixon instructed an on-duty patrol officer to arrest and search the accused. Within seven minutes of receiving the information from the informant, the accused had been stopped in his car.

Grounds for Arrest and Search Incidental to Arrest

[11] Reasonable grounds for arrest are a credibly based probability and more than mere suspicion (Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145; R. v. Janvier, [2007] SKCA 147).

[12] The patrol officer relied upon Dixon’s belief that reasonable and probable grounds existed to arrest the accused and search his motor vehicle.  The arresting officer was entitled to do so.  However, in such circumstances, Dixon must be able to demonstrate, on a subjective and objective basis, that he had reasonable and probable grounds to believe the accused was committing an offence and a search would reveal evidence of the offence.

[13] Most of the information relied upon by Dixon came from confidential informants.  In the circumstances where police rely upon informant information, the reliability of an informant must be apparent and is to be assessed in light of the totality of the circumstances.  The relevant principles for assessing informant information were set out in R. v. Garfoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 as follows (at pp. 1456 – 1457):

(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search.  However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.

(ii) The reliability of the tip is to be assessed by recourse to “the totality of the circumstances”.  There is no formulaic test as to what this entails.  Rather the court must look to a variety of factors including:

(a)   the degree of detail of the “tip”;

(b)  the informer’s source of knowledge;

(c)  indicia of the informer’s reliability such as past performance or confirmation from other investigative sources.

(iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.

[14] I am also aware of the commentary found in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 SCR 1140 (at p. 1168):

In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search.  First, was the information predicting the commission of a criminal offence compelling?  Second, where that information was based on a “tip” originating from a source outside the police, was that source credible?  Finally, was the information corroborated by police investigation prior to making the decision to conduct the search?  I do not suggest that each of these factors forms a separate test.  Rather, I concur with Martin J.A.’s view that the “totality of the circumstances” must meet the standard of reasonableness.  Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

Compelling?

[16] In examination, Dixon disclosed that BPS received information from four informants in May of 2020.  All four informants indicated that the accused was trafficking in meth.  When asked, Dixon refused to reveal any further details of the information received for fear it would reveal the identity of the informants.

[17] Again, in June, BPS received confidential information that the accused was trafficking in meth.  This information also claimed the accused was stashing meth and firearms.

[18] On June 16, 2020, a confidential informant advised BPS that the accused was trafficking in meth from his black Impala bearing Manitoba license plate KLJ 160.

[19] Dixon agreed that the informant information was general information with little detail.

[20] No evidence was provided to the court revealing whether the informants’ information was founded on hearsay or personal observation.

[21] The court heard evidence that on May 29, 2020, based on the information received from the informants, the accused was stopped and searched.  The search did not turn up any evidence of criminal activity.

[22] In the totality of the circumstances, I cannot conclude that the information provided by the informants was compelling.  In order to protect the identity of the informants, Dixon was only prepared to disclose that the information was that the accused drove a black Impala and was trafficking in meth.  There was also an allegation he was stashing firearms.  Whether this was first-hand knowledge of the informants or hearsay is unknown.  Whether any further details had been provided is also unknown.  The information provided to the Court consisted of nothing more than conclusory statements.

[23] In assessing confidential information as the basis for reasonable grounds, Martin J. A. stated, in R. v. Debot, 1986 CanLII 113 (ON CA), [1986] OJ No 994 (QL), 54 CR (3d) 120:

… Consequently, a mere statement by the informant that he or she was told by a reliable informer that a certain person is carrying on a criminal activity or that drugs would be found at a certain place would be an insufficient basis for the granting of a warrant.  The underlying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged.  I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search or for making an arrest without warrant.  Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify a warrantless search or an arrest without warrant are whether the informer’s “tip” contains sufficient detail to ensure it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. …

Reliable?

[24] Dixon testified he relied upon the confidential information provided by four informants.  No evidence was presented regarding the reliability of three of those informants.  I am unable to conclude that those three informants were reliable.

[25] For the informant who provided the tip on June 16, 2020, Dixon testified that this informant was a paid informant who had provided information between three and eight times in the 12-month period leading up to the arrest of the accused.  Dixon would not reveal if the informant had a criminal record.  Dixon testified he was of the opinion that this informant was a reliable informant.

[26] I am not satisfied that I have sufficient information to conclude that the remaining informant is a reliable informant.  The informant’s background was not sufficiently disclosed.

Corroborated?

[27] Surveillance was conducted on the accused during May and June, up to the time of his arrest.  Dixon refused to specify how frequently surveillance was undertaken or on which dates.  He explained this evidence could jeopardize the identity of his informants.  The accused was stopped and searched on May 29, 2020.  Dixon testified that through surveillance, BPS was able to confirm that the accused drove a black Impala bearing Manitoba licence plates KLJ 160.  No evidence was presented of any suspicious behaviour by the accused while under surveillance.  The search revealed no evidence of criminal behaviour.

[28] I am of the opinion that, if anything, the surveillance and the search of May 29, 2020, should have caused BPS to have questioned the validity of the information they were receiving or to make further efforts to obtain corroborating information by other means.  Neither was done in this case.

Reasonable Grounds to Arrest and Search

[30] While the number of tips BPS received respecting this accused may have raised suspicions, the tips were not compelling, the sources were not proven to be reliable and attempts to corroborate the information were largely unsuccessful.

[32] Objectively, I find that there did not exist reasonable and probable grounds to believe a search of the accused or his car would reveal evidence of criminal behaviour. The searches were not justifiable in law.

[33] As such, I find that the rights of the accused not to be arbitrarily detained and to be secure from unreasonable search guaranteed by the Charter have been violated.

Section 24(2)

Seriousness of the Charter-infringing State Conduct

[38] However, I am persuaded that the comments found in R. v. Sharpe, 1997 CanLII 672 (BC SC), are applicable to the facts of this case.

[31] The seriousness of the breach must be discerned from the totality of the circumstances.  Here, while each of the errors and inadequacies in the investigation (or lack thereof) was neither deliberate nor a flagrant disregard for the rights of the accused, taken together they add up to the use of significant power by the state to invade the sanctity of a person’s home on nothing more than several uninvestigated, mistaken or uncorroborated circumstances.  Such a turn of events can neither be viewed as trivial nor technical.

…

[33] I take these sentiments to reflect a principle that when assessing police conduct resulting in errors and omissions in an investigation and/or an information to obtain a search warrant, to determine how serious a breach of rights is, carelessness can amount to the equivalent of “bad faith”.  One must look at the totality of the circumstances and ask what the level of carelessness reveals. …

[39] In May of 2020, BPS had information from four informants that the accused was trafficking in meth.  How reliable these sources were cannot be determined by the court.  The evidence before the court suggests the information received was bare assertions of criminal behaviour lacking both in detail and the informant’s source of knowledge.  Surveillance was conducted on the accused.  On May 29^th, the accused was stopped and searched.  No evidence of criminal behaviour was found.

[41] It is my opinion that in light of the failed search of May 29, 2020, it was incumbent of BPS to conduct further investigation to confirm the undetailed assertions of their informants.  On the evidence before the court, the two tips received in June of 2020 did nothing to enhance the grounds to believe the accused was involved in criminal activity or that evidence of criminal conduct would be found.  The failure of two months of surveillance to turn up any corroborating evidence other than the identity of the accused’s car, is also concerning.  There was nothing compelling about the tip of June 16, 2020, which would justify the immediate arrest of the accused and the search of his car.

[42] It appears that Dixon was careless in his assessment of the grounds he had to make an arrest and/or conduct a search of his vehicle, and oblivious to the shortcomings of the information he had at his disposal.  This carelessness led Dixon to instruct the arrest and search of the accused with little or no regard for the accused’s Charter-protected rights.  I am of the opinion that this carelessness did amount to bad faith.

[43]… The Court must make its decision only on the evidence presented in court.  I am not able to speculate what other evidence may have been available but withheld.

Impact on the Charter-protected Interests of the Accused

[45] The arresting officer received a call from Dixon to be on the lookout for the accused, to arrest him and to search his motor vehicle.  While on the phone with Dixon, the officer noted the accused’s car immediately behind his patrol car on the street.  The officer got out of the car and pulled his handgun.  The accused was told to show his hands, arrested, handcuffed and placed in the back of a police cruiser.  While police officers pulling their handguns to arrest an accused may be common place in the United States, it is not the common practice in Canada.

[46] The manner in which the arrest was conducted coupled with the fact that this was the second time the accused was detained and searched on the same allegations lead me to conclude that there was a significant impact on the accused’s Charter-protected rights.

Balancing

[50] While the handgun is essential evidence for the success of the Crown’s case, I must consider the other factors as well.  The information provided by the informants fell short of what was required.  I say so after considering the lack of detail of the information, the lack of information to determine the source of each informant’s information, and the unsuccessful search of May 29, 2020.  In addition, surveillance conducted by BPS was unable to confirm any of the information obtained from the informants with the exception of a description of the accused’s car.  More was required of the police before reacting the way they did on June 16, 2020.  The impact of the breach of the accused’s Charterrights was significant.  I am persuaded that the violation of the accused’s Charter–protected rights in the circumstances of the case require that the evidence of the handgun and ammunition be excluded from evidence to avoid the administration of justice from being brought into disrepute.

R v Boudreau, 2021 ABPC 175

[June 22, 2021] Order for the Recusal of the Crown Prosecutor [F.K. MacDonald PCJ]

AUTHOR’S NOTE: This case provides a great overview of the law that applies when prosecutors interject themselves personally (both factually and emotionally) into the investigation of offences before the court. Perhaps it cannot be stated enough that role of a prosecutor excludes any notion of winning or losing. The ultimate goal must be a fair trial on the basis of all admissible evidence. In this case, the very experienced prosecutor crossed the line into personally aligning himself with the complainant’s position and into the investigation of a breach offence. Poor behaviour resulted and he potentially made himself a witness. The result was an order for recusal. 

Parenthetically, perhaps the worst part of this case is that it was necessary to bring this application. On the basis of the facts available to the Crown, they should have recognized the line had been crossed and removed the prosecutor from the case before it got to a court hearing. Instead, the institution defended this particular prosecutor’s ability to continue on the case. Consequently, the whole office came away with a black eye. This case should be required reading at the Crown’s office.

Overview

[1] The Applicant seeks an order from this court recusing Crown Prosecutor Mr. Mark Huyser-Wierenga from conducting this case. The Applicant alleges abusive conduct, failure to disclose in a timely manner and a reasonable apprehension of bias in Mr. Huyser-Wierenga’s conduct of the case thus far, and in particular in relation to an application for an adjournment of the trial and subsequent application for a warrant for Mr. Boudreau’s arrest for breach of release. That application occurred on December 18, 2020 before his Honour Judge Lepp. Ms. Ellen Sutherland was Mr. Boudreau’s defence counsel. The Applicant seeks a stay or in the alternative an order for recusal and or costs. The Applicant on this application was represented by Ms. Ellen Sutherland and Mr. Kristofer Advent. Mr. James Stewart appeared for the Crown.

Background

[6] Mr. Boudreau is charged with a number of offenses arising out of incidents which are alleged to have occurred on the 20 th and 21 st of March 2020. The information was sworn on March 22 nd and the accused had a bail hearing before the Justice of the Peace that same day. I understand that this matter was set for trial on December 18 th of 2020. The events which are most relevant to this application occurred on the evening before the trial, December 17th , or on the first day of the trial December 18th , 2020. Mr. Huyser-Wierenga had been meeting with the complainant to prepare for trial. On the morning of the trial Mr. Huyser-Wierenga and Ms. Felix met with the complainant again at the courthouse. Mr. Huyser-Wierenga then met with Ms. Sutherland in an ante-room outside one of the courtrooms.

[7] Two particulars of this case are unusual. The first of these is that Mr. Huyser-Wierenga is visually impaired. For several years he has appeared in court assisted by an aide and carrying a white cane. From my own observation of him in court I have noted that Mr. Huyser-Wierenga does not take written notes. His aide assists him with the materials he brings to court and in physically navigating the courtroom. His aide on December 17 th and 18 th was Ms. Kathleen Felix. It would not be an exaggeration to say that Ms. Felix works very closely with Mr. Huyser-Wierenga, being his guide, porter and scribe.

THE ANTE ROOM CONVERSATION: December 18, 2020

[8] The affidavit of Ms. Bangash describes the events in the ante-room. The narrative contained there is obviously derived from Ms. Sutherland. Ms. Sutherland attended the courthouse with her client and a defence witness. Mr. Huyser-Wierenga asked to speak with her in the ante-room. Also present was Mr. Huyser-Wierenga’s personal assistant, Ms. Kathleen Felix. Mr. Boudreau was not present. Mr. Huyser-Wierenga is described as being “hostile and aggressive” and repeatedly stated that he was annoyed with Mr. Boudreau.

[9] Mr. Huyser-Wierenga revealed to Ms. Sutherland that Mr. Boudreau had been contacting the complainant up until the morning of the trial via text message—including when the complainant was meeting with the Crown to prepare for trial. The messages the complainant relayed to Mr. Huyser-Wierenga and Ms. Felix on December 17 th refer to plea discussions between the Crown and Defence Counsel. In those messages the writer complains about the Crown resolution offer of jail time and refers to the Crown profanely and disparagingly in such terms as a “goof”, and “blind muhfucker.” Mr. Huyser-Wierenga told Ms. Sutherland “your client needs to learn that he can’t fuck with my witnesses.”

[10] Mr. Huyser-Wierenga advised Ms. Sutherland that he was making an application to have the trial adjourned and the accused’s bail revoked because the complainant was fearful and did not want to proceed at that time. Mr. Huyser-Wierenga said that he would be talking to an investigator on this matter as soon as possible.

[11] All the above was premised on information received by Mr. Huyser-Wierenga from the complainant on the evening of December 17 th and the morning of December 18 th and the images he and his assistant Ms. Felix observed on the complainant’s phone.

[12] Ms. Sutherland requested copies of the documents and statements. Mr. Huyser-Wierenga declined to provide any. He did allow Ms. Sutherland to look at a screen shot of the complainant’s phone (displaying the December 18th messages) taken by Ms. Felix.

THE ADJOURNMENT APPLICATION BEFORE JUDGE LEPP

[13] Immediately after the ante-room conversation, Mr. Huyser-Wierenga applied to adjourn the trial and to revoke Mr. Boudreau’s bail. The grounds for the application were two-fold and related. One, the Crown was alleging that there had been significant and continuous contact between Mr. Boudreau and the complainant and that the most recent communications amounted to obstruction of justice. Some of the communications had been captured by Ms. Felix on Mr. Huyser-Wierenga’s phone; some the complainant had sent to Mr. Huyser-Wierenga’s phone the night before. The second ground for the adjournment was that the complainant had been a significant witness in a high-profile murder trial in Saskatchewan, as well as present during the homicide, and that coming to court for this matter was causing her great anxiety—which was not assisted by what the Crown characterized as pressure from Mr. Boudreau.

[14] Mr. Huyser-Wierenga submitted that the complainant was not in a state to testify about the messages and communications. Ms. Sutherland took issue with Mr. Huyser-Wierenga’s submissions on the adjournment and on revocation of bail, noting that she had received scant notice and nothing in writing of the present allegations. Mr. Huyser-Wierenga then offered twice to testify: see Transcript page 18, ll. 20-31; page 32, ll. 28-41 to page 33, ll. 1-4). After the second offer, Judge Lepp warned Mr. Huyser-Wierenga that if he gave evidence then he could not prosecute the case. Mr. Huyser-Wierenga then called his assistant, Ms. Felix, to the stand. Ms. Felix gave evidence about the messages and the complainant’s state of mind. In the course of the application printed copies of some of the messages were put into evidence; Ms. Sutherland was provided with copies during argument on the adjournment (Transcript page 19, l. 1). Judge Lepp granted the adjournment application. Judge Lepp subsequently issued a bench warrant for Mr. Boudreau’s arrest pursuant to section 512.3 of the Criminal Code (“CC”). Mr. Boudreau was arrested in court by a Sheriff and the bail revocation hearing was adjourned until December 21, 2020. I understand that Mr. Boudreau was subsequently released under stringent bail conditions by Assistant Chief Judge Bodnarek. Subsequently there was further e-mail correspondence between Ms. Sutherland and Mr. Huyser-Wierenga.

The Law on Recusal of Counsel

[15] A court can deny audience to a Crown or a defence counsel. This is part of the court’s inherent power to control its own process. The court has jurisdiction to remove counsel from the record where it is necessary to do so to ensure the appearance of fairness and integrity in the trial process and/or to maintain public trust and confidence in the administration of justice: see R. v. Brown [1996] O.J. No. 5319 (Ont. Gen. Div.) at para. 23.

[16] This jurisdiction should be exercised sparingly: “This jurisdiction, however, should be exercised with the greatest of care in reviewing all of the circumstances of the alleged forensic misconduct. An order removing counsel should be made only when it is necessary to do so.” Brown op. cit.; R. v. Khan [2002] O.J. No. 3623 at para. 27.

[17] In R. v. Khan Justice Hill states “An aspect of trial fairness and the appearance of fairness is that there not be an apprehension that the prosecutor is biased for or against the accused person. Khan at para. 27; see also R. v. Boucher [1954] S.C.R. 16 passim.

[18] The evidence on the application to recuse must show that “the Crown knew or ought to have known that their conduct had the effect of undermining the integrity of the judicial process.” Per Archibald J.A. in R. v. Colson [2002] O.J. No. 1576 at para. 17. (emphasis added)

I therefore conclude that the foundation of an appropriate recusal application against Crown counsel must be based on evidence to support the proposition that the Crown has misconducted themselves either intentionally, recklessly, or with unacceptable negligence for the purpose of undermining the integrity of the administration of justice. (emphasis added)

[19] The test is an objective one:

23 The standard for the removal of counsel is objective. The standard is that of a reasonably informed member of the public. MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, 48 C.P.C. (2d) 113, [1991] 1 W.W.R. 705, 121 N.R. 1, 77 D.L.R. (4th) 249, 70 Man. R. (2d) 241 per Sopinka J., at p. 28 [N.R.]. … The issue is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor.

[20] See also R. v. Newsham [2002] O.J. No. 2739 at para. 17 and Everingham v. Ontario 1992 CanLII 7681 (ON SC), [1992] O.J. No. 304 at para. 27.

[21] In R. v. Colson Justice Archibald said the following:

In my view, at a minimum, the requisite level of professional misconduct on the part of Crown counsel which could lead to recusal should be based upon negligence which has had the effect of undermining the integrity of the judicial process…. Given the seriousness of the remedy, mere inadvertent misconduct is not sufficient to attract this sanction. Rather, I hold that the evidence must establish that the Crown knew or ought to have known that their conduct had the effect of undermining the integrity of the judicial process. In my view, that standard is also consistent with the maintenance of public confidence in the criminal justice process.

[22] In R. v. Brown [1996] O.J. No. 5319 (Ont. S.C.J.) Justice Trafford provides some examples where recusal would be appropriate: “It would, for example, be appropriate to do so where counsel has a personal interest in the outcome of the case, is acting in a conflict of interest or is likely a material and necessary witness in the case.”

[23] The onus is on the applicant on a balance of probabilities.

DISCUSSION: THE ANTE ROOM CONVERSATION

[24] Regarding the meeting in the ante room, I accept the version of events detailed in Ms. Bangash’s affidavit. Mr. Stewart, for the Crown, as much as acknowledged that Mr. HuyserWierenga used intemperate language in the ante room. Mr. Huyser-Wierenga was hostile and confrontational with Ms. Sutherland. I have also considered Mr. Huyser-Wierenga’s email of April 1st , 2021 to Ms. Sutherland, which acknowledges the use of the expletive. The second paragraph of the email begins, “In response to your notice of motion be assured that I have no animosity towards you or your client etc.” Mr. Huyser-Wierenga’s email of April 1st , 2021 asserts that Ms. Sutherland “misperceived the events” and also states that he did not “mean to” offend her by the use of the expletive. I have no other information from Mr. Huyser-Wierenga about what occurred. The denial of animosity towards either Ms. Sutherland or Mr. Boudreau is not credible in light of the content and language used in the conversation between them. The April 1 st email is a tacit acknowledgment by Mr. Huyser-Wierenga that his conduct was hostile and confrontational.

[25] It is important to put the exchange in the ante room in context. This is a domestic violence file. The allegations are serious: one count of intimidation, two counts of simple assault; one count of assault causing bodily harm; one count of choking; one count of sexual assault. As well, as referenced in the email of December 11th , and in Mr. Huyser-Wierenga’s submission in court, there were four other outstanding informations involving the accused and the complainant—including breaches of the accused’s release conditions not to have contact with the complainant or attend her residence (see also Transcript page 27; ll. 33-39). On the eve of trial, the Crown became aware that the accused was continuing to contact the complainant in breach of his release, and also that the accused, on the morning of the trial, was sending a message which was—arguably—an attempt to obstruct justice: “the fucker is going to run it with or without you. You don’t need to be here.” As outlined in his submissions to Judge Lepp, Mr. Huyser-Wierenga perceived that the complainant had been subjected to pressure from the accused for some timereferencing a recantation—but also that the complainant was vulnerable in part because of her prior court experience, which was very traumatic.

[26] In such circumstances, any decent and reasonable human being might well feel angry and indignant on behalf of the complainant; and affronted by the boldness of the attempted obstruction on the very morning of trial. As well, any human being might well feel nettled by the demeaning and insulting terms by which he is portrayed in the messages and, in particular, the derisive references to his disability. However, Mr. Huyser-Wierenga is not the man on the street. Mr. Huyser-Wierenga is one of the most senior of the Crown prosecutors practicing in Edmonton General Prosecutions. He has been a Crown Prosecutor for over 30 years. I doubt this is the first time he has been referred to disparagingly by an accused in a criminal case. His manner of address to Ms. Sutherland, who was called to the Bar in 2020, was discourteous and unprofessional. The irony is not lost on me that, in service to the welfare of the female complainant, Mr. Huyser-Wierenga visited his outrage on a junior and female member of the bar.

[28] At a minimum, Mr. Huyser-Wierenga’s conduct towards Ms. Sutherland falls afoul of a number of Law Society Code of Conduct provisions:

Law Society of Alberta Code of Conduct

Courtesy 5.1-6 A lawyer must be courteous and civil and act in good faith to the tribunal and all persons with whom the lawyer has dealings.

Courtesy and Good Faith 7.2-1 A lawyer must be courteous and civil and act in good faith with all persons with whom the lawyer has dealings in the course of his or her practice.

[29] Regrettable as this conduct towards Ms. Sutherland was, it does not alone justify the inference of bias that the Defence urges me to draw. I will consider it further below in relation to reasonable apprehension of bias.

THE DISCLOSURE ISSUE

[35] After Court on December 18 at 2:44 pm Ms. Sutherland sent an email requesting the following disclosure from the Crown:

1) The dates and times you spoke to the complainant, Ms. (name omitted);

2) A copy of the full content of your discussion with Ms. (name omitted), in writing, on each of those dates;

3) Any notes taken during discussion with Ms. (name omitted) and any of the aforementioned dates;

4) A copy of the text messages received from Ms. (name omitted), other than the eight provided to me today;

5) The specific dates and times the messages were alleged to have been received by Ms. (name omitted);

6) Any other material you intend to rely upon during this hearing. (Affidavit; Exhibit B, Applicant’s Brief, Tab 2).

[36] To which Mr. Huyser-Wierenga responded at 5:04 pm on the 18th with the following:

I have no log notes of the dates and times when I’ve spoken to with the complainant. As I advised you earlier today, I met with her in person yesterday afternoon in order to brief and prepare her for trial. I made no notes during this meeting. If I had they would in any event be privileged, please see paragraph 34(e) of R. v. L.R.S. 2016 ABCA 307.

Ms. (name omitted) described to me that there had been significant contact and communication between herself and the Accused throughout much of the nine months since charges were laid. She indicated that she attended the Accused’ residence on Monday, December 14th, and that she and he had a physical altercation at that time and that he subsequently sent her photos (or perhaps just one) of injuries to his face. She also indicated that he had sent her a photo of him wearing a suit and that he’d indicated that is what he’d be wearing when he went to court. As I advised you previously, she also indicated that even while she was meeting with me, he was communicating with her, telling her that she should just get up and leave the meeting. …

The hard copy messages that I provided you with in court today are messages that Ms. (name omitted) says were sent to her by your client sometime this past week. The two screenshotted messages we sent to you electronically earlier today were received by Ms. (name omitted) this morning. (Affidavit; Exhibit B, Applicant’s Brief, Tab 2)

[37] Ms. Sutherland reiterated this disclosure request March 12th , 2021 (Affidavit; Exhibit D, Applicant’s Brief, Tab 2). In this time period the file was under case management before Judge Doyle. Ms. Sutherland filed a Motion for Recusal on March 19 th to which Mr. Huyser-Wierenga responded by email on April 1 (Tab 4 Crown Brief).

[38] In that email Mr. Huyser-Wierenga says:

Regarding your request for further disclosure in connection with the Affidavit or letter, I’ve already provided you with that information by way of my email to you dated 18 December, 2020. I believe I’m the least informed as it relates to this letter or Affidavit, and all information I have regarding its provenance I have already provided to you in writing

[39] I understand that beyond the written response included in the emails to Ms. Sutherland, no further disclosure has been provided in relation to the messages allegedly sent by Mr. Boudreau to the complainant; or the discussions regarding the affidavit. No charges have been laid in relation to the messages.

DISCLOSURE: THE LAW

[40] The lead case on disclosure is and remains R. v. Stinchcombe 1991 CanLII 45 (SCC), [1991] 3 SCR 326—hereafter Stinchcombe #1.

[41] In Stinchcombe #1 the Court held that “the information in the hands of the Crown (the fruits of the investigation’) is not the property of the Crown to secure a conviction, but the property of the public to ensure that justice is done.” Stinchcombe #1, at page 333.

[42] The Crown can withhold information if it is clearly irrelevant, or subject to privilege, or otherwise governed by law. Stinchcombe #1, page 335-6; 339.

[43] The Crown retains a discretion as to the timing and manner of disclosure in circumstances where disclosure in the ordinary course might result in harm to anyone or prejudice to the public interest. The discretion of timing for disclosure also extends to allowing an investigation to be completed. Stinchcombe #1, page 335-6; 339.

[44] The Crown is under a duty to disclose all relevant information. No distinction should be made between exculpatory and inculpatory evidence Stinchcombe #1, page 340-1; 343.

[45] Relevance for the purposes of disclosure means there is a reasonable possibility that the information might be useful to the defence in meeting the case for the Crown, advancing a defence, or otherwise making a decision which may affect the conduct of the defence. Stinchcombe #1, page 345.

[48] The Crown has a duty to preserve relevant evidence: R. v. La 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680 at para. 17.

Argument on Disclosure

[58] The dictum from the Alberta Court of Appeal does not support the proposition that minimal or incomplete disclosure of a statement in the hands of the Crown is acceptable so long as the “gist” of the information is disclosed. Stinchcombe #2 was a case about lost originals where copies were available or in the case of the video—a transcript. The principle in Stinchcombe #2 has little application to an interview conducted by the Crown which is unrecorded and which is then disclosed to the defence in the form of a cursory memo.

[63] Mr. Justice Perras considered the scope of work product privilege in R. v. Card, 2002 ABQB 537. The case concerned a letter sent by a prosecutor to a staff sergeant and whether or not it was covered by any form of privilege, including work product privilege.

[64] Mr. Justice Perras stated:

[18] The key element in work product privilege is that it attaches to communications in the course of litigation or for the dominant purpose of litigation (Mosley v. Spray Lakes Sawmills (1980) Ltd. (1996), 1996 ABCA 141 (CanLII), 184 A.R. 101 (C.A.). Work product generally includes such materials as Crown counsel’s notes and memoranda on file, correspondence, Crown counsel’s opinions, and trial strategy. Sulyma J. at para. 95 of Chanadopted the following definition of work product:

Work product is usually in the form of written notes or material that involves thought processes or considerations of Crown counsel in the preparation of its case. In other words the product is the result of an analysis of the mind.

[19] Work product, however, does not include factual information, and any new facts or facts inconsistent with previously disclosed facts must be disclosed. (cites omitted) (emphasis added)

[65] The bulk of what Ms. Sutherland asked for on December 18^th and again in March is not disclosable. It is protected by work product privilege.

Conclusion: Disclosure Issue

[66] However, contained in Mr. Huyser-Wierenga’s submissions to Judge Lepp in the adjournment application are a number of new things which would trigger an obligation to disclose: the recent text communications; the information concerning the letter or affidavit; the interaction between the complainant and the accused on December 14th .

[67] The difficulty is that Mr. Huyser-Wierenga has no notes of his conversations with the complainant. His brief email December 18 th constitutes all the record (plus the photocopy of the texts already provided) of his interviews with the complainant.

[68] The terse summary of the conversation between Mr. Huyser-Wierenga and the complainant on December 17 th and again on the 18 th (regarding the new things) does not rise to the level of a “will say”. It is plainly incomplete. For example, the “quid pro quo pressure” referred to by Mr. Huyser-Wierenga in his submissions to Judge Lepp (Transcript page 26, ll. 2023; see para 99 (j) below) is not described in the email of December 18th .

[69] This situation is an exemplary illustration of the perils of intermingling the Crown and investigative roles—as happened here. The information about the new things would be relevant to the defence on the substantive charges. In particular, the statement by the complainant regarding the genesis of the “affidavit” or statement is going to be relevant. Plainly a recantation or statement in support of the accused may be useful to the Defence at trial. Any retreat from its content or suggestion that the statement was the product of coercion by the accused or his family would make the statement materially less helpful to the defence.

[70] I accept Mr. Stewart’s representation to me that the matter has been referred to the investigator. In my view it should have been at the time of the interviews. Failing that, the Crown duty to preserve evidence requires that the Crown take and then disclose notes—adequate notes of any new thing arising in discussion with the complainant. That has not happened here—which was negligent.

[71] It may be that this disclosure problem will be remedied by subsequent disclosure from a proper investigation. If not, then Mr. Huyser-Wierenga and his assistant, Ms. Felix, are potentially and realistically witnesses to those statements.

ROLE OF THE CROWN

[72] In Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, Rand J. made the authoritative statement on the role of the Crown prosecutor in Canadian Courts. He says, at pp. 23-24:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

[73] As Binnie J. noted in R. v. Regan 2002 SCC 12, the Minister of Justice responsibility is not confined to the Crown’s actions in the courtroom:

155 The “Minister of Justice” responsibility is not confined to the courtroom and attaches to the Crown Attorney in all dealings in relation to an accused person whether before or after charges are laid.  It is a responsibility “that should be conducted without feeling or animus on the part of the prosecution” (R. v. Chamandy (1934), 1934 CanLII 130 (ON CA), 61 C.C.C. 224 (Ont. C.A.), per Riddell J.A., at p. 227).

[74] After citing Boucher and other authorities, Justice Binnie then outlined how the Crown’ s role as a Minister of Justice is made up of three components: objectivity; independence and lack of animus:

156 These statements suggest at least three related but somewhat distinct components to the “Minister of Justice” concept. The first is objectivity, that is to say, the duty to deal dispassionately with the facts as they are, uncoloured by subjective emotions or prejudices. The second is independence from other interests that may have a bearing on the prosecution, including the police and the defence. The third, related to the first, is lack of animus – either negative or positive – towards the suspect or accused. The Crown Attorney is expected to act in an even-handed way.

[77] Is there evidence before me that Mr. Huyser-Wierenga blurred the prosecutorial and investigative functions in this case? The answer is “Yes.”

[78] As the Court of Appeal noted in R. v. S. (L.R.) there is nothing wrong with prepping a witness for trial. The Crown is not required to keep notes of those discussions to disclose to the defence. However, that is not the case should new information arise; then a disclosure obligation will require the Crown to provide the new information to the defence.

[79] Crown prosecutors are always at risk of receiving new information from a witness. If that happens they must disclose it. The best practice would be to have the witness or complainant speak to the file investigator and have that officer conduct an interview, take a statement and take notes concerning the new information, which could then be disclosed. The interview of December 17 th between the complainant and Mr. Huyser-Wierenga occurred at the Crown office. That interview revealed that the accused was still in contact with the complainant. The following morning the Crown and the complainant came to the courthouse for the trial. Presumably the investigator was present; if not, since Mr. Huyser-Wierenga called off a number of other officers the night before (see emails December 11 to 17), a remaining officer (Cst. Kortbeek) could have been readily available to pursue the new allegations that morning.

[80] Mr. Huyser-Wierenga did not pursue that simple expedient of referring the matter then and there to an investigator. Instead, as Ms. Felix’s testimony shows he elected to conduct his own examination of the complainant on this new information. Further, Mr. Huyser-Wierenga took no notes of either interview. It is unclear whether his assistant Ms. Felix did: none are referenced in the Transcript of December 18th , nor in the subsequent email correspondence between Ms. Sutherland and the Crown.

[81] I have before me evidence which suggests a loss of objectivity. First is Mr. HuyserWierenga’s repeated offers of testimony on the adjournment application.

[82] The first such offer comes when Ms. Sutherland insists that Mr. Huyser-Wierenga call some evidence on the adjournment application. Mr. Huyser-Wierenga advises that he will not be calling the complainant.

JUDGE LEPP: …you are in a bit of a difficult situation as well, Mr. HuyserWierenga, specifically here because you were involved in some of these incidents in and around the time when you were prepping your witness for trial that you are kind of close to the flame, if I could put it that way?

CROWN: Well, yeah, it’s not a concern to me at all. I mean that’s just the nature of the business in a sense, and, you know, like the issue about me becoming a witness, that’s just not an issue here as far as I under—conceive things, and sheyou know, this is not—like, the—the source of all the information about this is, yes from Ms. (name omitted) revealing this information to me. (Transcript page 18)

[83] Later Mr. Huyser-Wierenga details how he found out about the morning messages by questioning the complainant when she arrived at the courthouse. Mr. Huyser-Wierenga was proposing to have his assistant Ms. Felix read into the record the message received this morning to confirm his representations. Ms. Sutherland then rightly observed “does this not make my friend some sort of witness in this? (Transcript page 32, ll. 28-29)

CROWN: “Well, if you want me to take the stand, I’ll take the stand, that’s fine.”

JUDGE LEPP: “Then you cannot prosecute it any more.”

CROWN: “That’s fine. Then we’ll adjourn for that reason as well.” (Transcript, page 32, ll. 31-40; page 33 ll. 1-4).

[84] It is clear that Ms. Sutherland and Judge Lepp were aware of the conflict which Mr. Huyser-Wierenga was putting himself into and that Mr. Huyser-Wierenga was cavalier about the risk that such an action put the prosecution into.

[85] Further, having elected not to give evidence himself, Mr. Huyser-Wierenga essentially gave evidence through his assistant of what his actions were in interviewing the complainant. His questions to Ms. Felix were lengthy and leading. See the Transcript pages 34-36 especially—an excerpt of which is attached as an Appendix to this decision. i This also discloses a lack of objectivity.

POTENTIAL CONFLICT: CROWN AS WITNESS

[86] The examination in chief discloses that Mr. Huyser-Wierenga conducted an investigation. There has been no further disclosure regarding the information given to Mr. Huyser-Wierenga by the complainant regarding the messages; the affidavit or letter; or any other pressure on the complainant.

[87] It is axiomatic that counsel cannot appear in a case where he may be a witness.

[89] The case of R. v. Leduc (2003) 2003 CanLII 52161 (ON CA), 66 OR (3d) 1; 174 OAC 242; 18 CR (6th) 167; 176 CCC (3d) 321 (ONCA) concerned a situation where the Crown in a prosecution attempted to give an explanation for lost disclosure from counsel table. The Court commented as follows:

[132] Ms. Hallett recognized that the Crown owed both the court and the respondent an explanation for the non-disclosure. See R. v. Ahluwalia, supra. She should, however, have given her explanation from the witness box instead of from the counsel table. She should have arranged for another Crown to take carriage of the stay application and lead her evidence. The reasons why she should have done so are grounded in the principle that ordinarily a lawyer cannot be both an advocate and a witness in the same case. See, for example, Imperial Oil v. Grabarchuk (1974), 1974 CanLII 869 (ON CA), 3 O.R. (2d) 783 (C.A.). If an advocate wishes to give evidence about material and contested facts, the advocate must take off his or her gown and testify under oath. Otherwise, the advocate’s statements are shielded from cross- examination and the court has to make findings of credibility on untested evidence.

[133] Moreover, being an advocate and a witness in the same case raises professional conduct concerns. Giving evidence from the counsel table puts in question the advocate’s personal credibility, compromises the advocate’s objectivity and potentially puts the advocate in a conflict of interest. (emphasis added)

[90] This is a domestic violence file. Like may other cases of that kind there is the potential for the complainant to recant—in whole or in part—or to profess a lack of memory of the index events or of subsequent, if relevant.  In this case that is not a speculative risk. Counsel for the defence have indicated that they have the letter or affidavit of the complainant given after independent legal advice. Depending on what other statements the Crown is in possession of (i.e. written, video or tape recorded; KGB) the Crown may, if faced with an adverse or hostile complainant, have need to put to her the circumstances of the making of the former statements or facts relevant to an application to have some or all of the prior statements entered into evidence under the principled exception to the hearsay rule.

[91] Currently the only witnesses to the statements made by the complainant of December 17^th and 18^th are Mr. Huyser-Wierenga and his assistant, Ms. Felix.  But they are really functioning as one person, it is impractical to treat the two separately. Mr. Huyser-Wierenga’s examination in chief of Ms. Felix makes that apparent. Mr. Huyser-Wierenga/Ms. Felix is the source of the threadbare “will say” which details the circumstances of the making of those statements.

[92] Mr. Huyser-Wierenga is a potential witness. There is realistic risk that Mr. Huyser-Wierenga could be called upon to give evidence. In the absence of a proper investigation, and proper statements taken by an investigator, Mr. Huyser-Wierenga is the witness to the making of the complainant’s statement regarding the affidavit/letter; the messages and the pressure.

DUTY TO AVOID CONFLICTS

[93] The Law Society of Albert Code of Conduct makes it clear that counsel must avoid conflicts of interest. The Code states the following:

Commentary

[1] A conflict of interest exists when there is a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person. A substantial risk is one that is significant and, while not certain or probable, is more than a mere possibility. A client’s interests may be prejudiced unless the lawyer’s advice, judgment and action on the client’s behalf are free from conflicts of interest. (emphasis added)

[94] This rule applies equally to defence counsel or Crown prosecutors.

[95] The test for what constitutes a “realistic risk” is this: “a substantial risk is one that is significant, and while not certain or probable is more than a mere possibility. See Strother v. 3464920 Canada Inc., 2007 SCC 24 (CanLII), [2007] 2 SCR 177, at para. 61. Plainly the Code of Conduct Rule is derived from Strother.

[96] In R. v. Widdifield, 1995 CanLII 3505 (ON CA), [1995] O.J. No. 2383 (C.A.), which dealt with joint representation of a husband and wife co-accused, Doherty J.A. held, at para. 33:

Where the issue is raised at trial, the court must be concerned with actual conflicts of interests and potential conflicts that may develop as the trial unfolds. In deciding whether counsel should be permitted to act for co-accused, trial judges must, to some degree, speculate as to the issue which may arise and the course the trial will take. The trial judges’ task is particularly difficult since they cannot be privy to the confidential discussions which may have passed between the clients and counsel and which may reveal the source of potential conflicts. Given those circumstances, trial judges must proceed with caution and when there is any realistic risk of a conflict of interests they must direct that counsel not act for one or perhaps either accused. (emphasis added)

[97] Strother and Widdifield have been followed and applied many times by Alberta Courts. See R. v. Karmis, 2008 ABQB 525, at paras 10-13, 35; R. v. Lewis, 2011 ABQB 227 at para. 7; R. v. Caines, 2011 ABQB 82 at paras. 338-339.

[98] As noted above, there is a realistic risk that Mr. Huyser-Wierenga could be a witness. Should he continue as counsel, this case is a mistrial waiting to happen.

REASONABLE APPREHENSION OF BIAS

[100] I am troubled by the discrepancy between what Mr. Huyser-Wierenga summarized as his discussions with the complainant in the emails to Ms. Sutherland and Mr. Huyser-Wierenga’s description of those same events to Judge Lepp. In his representation to the Court Mr. HuyserWierenga describes the communications as follows:

[PJM Summary:In court, the prosecutor used terms like continuous communication, continuous contact, continued unabated and in email communications used the phrase significant contact]

[104] The offenses occurred on March 20 and 21st . The accused spoke to release on March 22nd . The allegations of breach of the no contact were from July 1 to September 30th —a gap of three months. The letter or affidavit was plainly written in March close to the offense dates if it was intended to assist with bail. The recent allegations of contact start the week of December 14 th and are chronicled in the messages. The most recent allegations of contact come some two and half months after the last allegation of breach—September 30th .

[105] With respect, this is not continuous contact – “unabated” since the accused’s release or for that matter “since January of 2020”; nor can it accurately be characterised as a “barrage of communication.” Further, Mr. Huyser-Wierenga’s allegations of pressure from the accused arise solely from events on December 17 th and December 18 th (the two text messages–“walk out of the Crown interview” and “You don’t have to be here” on the day of trial) at the very end of the 9 month period between the offense and the trial date. This is not continuous pressure. This is certainly not continuous contact.

[106] There were ample grounds for the adjournment and the warrant. Quite clearly the Crown was in possession of information which suggested the complainant was not in a state to testify and that the accused had at a minimum breached the no contact order on the eve of and on the morning of trial.

[107] Hyperbole and overstatement have no place in a Crown’s submissions to the Court when the liberty of the subject is at state. The admonitions in Boucher about Crown conduct at a trial are no less applicable to bail or adjournment applications: “Counsel have a duty to see that all available legal proof of the facts is presented: “it should be done firmly and pressed to its legitimate strength but it must also be done fairly.” (emphasis added)

[108] The misrepresentation by Mr. Huyser-Wierenga of the nature and kind of contact between the complainant and the accused in the adjournment and warrant hearing give rise to a reasonable apprehension of bias.

CONCLUSION

[109] The Crown duty of objectivity, fairness and lack of animus as a Minister of Justice pervades a Crown’s conduct of a prosecution.

[110] Mr. Huyser-Wierenga’s conduct towards Ms. Sutherland shows a lack of objectivity and an inappropriate hostility to the defence counsel. The statement that he was annoyed at Mr. Boudreau and that Mr. Boudreau “has to learn that he can’t fuck with Crown witnesses” reasonably lead to an inference of animus towards Mr. Boudreau. The Crown did not fairly and dispassionately put the facts before Judge Lepp in the adjournment/warrant application. This also shows an animus towards the accused and a reasonable apprehension of bias.

[111] Mr. Huyser-Wierenga has put himself in a position of conflict and may well be a witness in the trial proper. For this reason alone, I would order Mr. Huyser-Wierenga to recuse himself.

[113] Justice Hill made the following comment in R. v. Khan [2002] O.J. No. 3623 (at para. 28) on the threshold which must be reached to justify a recusal:

28 Not every marked and unacceptable departure from the reasonable standards expected of the prosecution leads to a conclusion that the prosecutor is biased or intent on securing a finding of guilt at any cost to the fairness of the trial. Conduct of a prosecutor leading to an interference with fair trial interests or the administration of criminal justice, whether or not such are the intended results or the prosecutor is reckless thereto, may be serious enough to justify recusal. (emphasis added)

[114] The record before me establishes that Mr. Huyser-Wierenga has conducted himself recklessly or with unacceptable negligence. The integrity of the administration of justice requires his removal as counsel from this case. I am satisfied that a reasonably informed member of the public would conclude likewise.

[115] I order Mr. Huyser-Wierenga to recuse himself from conducting this prosecution.

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