This week’s top three summaries: R v DGA, 2024 SKCA 114: prior ID non-stranger, R v Watson, 2024 ONSC 6781: #duress, and R v Osaigbovo, 2024 ONSC 6914: no reasons = #mistrial
R v DGA, 2024 SKCA 114
[December 10, 2024] Identification Evidence: Non-Strangers and Prior Identifications [Reasons by Tholl J.A. with Kalmakoff and McCreary JJ.A. Concurring]
AUTHOR’S NOTE: This case succinctly distinguishes the evidentiary treatment of identification in stranger versus non-stranger cases and the admissibility of prior consistent statements in these contexts.
Key Points and Analysis:
- Stranger Identification:
- Admissibility of Photo-Lineups:
- In cases involving the identification of a stranger, out-of-court identification processes such as photo-lineups are considered more probative and reliable than in-court dock identifications.
- This is because such processes occur closer in time to the alleged offence, reducing the risk of memory decay or suggestion (from presentation of the accused in the accused dock).
- These identifications are admissible as evidence even though they constitute prior consistent evidence (which is generally inadmissible), given their direct probative value in the context of identifying a stranger.
- Admissibility of Photo-Lineups:
- Non-Stranger Identification:
- Admissibility Restrictions:
- In cases involving non-strangers (e.g., individuals known to the witness), prior instances of identification (or disclosures) are typically treated as prior consistent statements, which are inadmissible.
- Such statements do not add probative value and cannot be used to corroborate or bolster the credibility of the in-court testimony of the eyewitness regarding identification.
- Admissibility Restrictions:
- Exceptional Circumstances for Admissibility:
- Prior consistent statements may be admissible in specific scenarios:
- Rebuttal of Recent Fabrication:
- If the defence alleges that the identification was recently fabricated, prior consistent statements may be admitted to counter such claims.
- Narrative Purpose:
- Statements may also be admissible to explain the sequence of events, such as how and when disclosures about the offence first occurred. However, in these cases, the statements are not admitted as evidence of the truth of the identification itself.
- Rebuttal of Recent Fabrication:
- Prior consistent statements may be admissible in specific scenarios:
- Practical Implication:
- Bolstering Not Allowed:
- Even in exceptional cases where prior statements are admitted, they cannot be used to bolster the identification evidence or the credibility of the eyewitness on the issue of identification. Their admissibility is limited in scope and purpose.
- Bolstering Not Allowed:
I. INTRODUCTION
[1] In 2013, five-year-old N.A. was sexually assaulted in her bedroom. Several years later, D.G.A. [D.A.] was charged with sexual interference. The trial turned on the issue of whether N.A. had reliably identified D.A. – a person whom she knew very well and was frequently in her home – as the perpetrator. D.A. was ultimately convicted and sentenced to 4.5 years of incarceration, less credit for pre-sentence custody.
[2] D.A. appeals from both his conviction and sentence, asserting numerous grounds of appeal. However, the conviction appeal turns on whether the trial judge erred in his use of prior consistent statements made by N.A. when he evaluated her reliability. For the reasons that follow, I find that such an error was made. As a result, the appeal must be allowed, the conviction quashed, and a new trial ordered.
II. BACKGROUND
[3] N.A. lived with her father and one sibling in a three-bedroom house on a Saskatchewan First Nation. The appellant, D.A., is her great-uncle. Over the years, D.A. was frequently at the house, interacting and drinking with N.A.’s father. He babysat N.A. on occasion and was very well-known to her.
[5] There was no evidence that N.A. told anyone about the sexual assault for the next three to four years. When she was nine or ten years old, N.A. was present when her sibling told their grandmother that she had been sexually assaulted by some boys in the community. N.A. then told her grandmother about the events of October 2, 2013, and named D.A. as the person who had perpetrated the abuse. N.A.’s grandmother testified that she told the RCMP about this disclosure, but there was no evidence of what occurred as a result. At some point after this conversation, N.A. told her mother about the incident and repeated that it was D.A. who had sexually assaulted her.
[6] On January 28, 2019, when N.A. would have been 11 years old, she told her guidance counsellor about the sexual assault, again alleging D.A. was the person responsible. The counsellor promptly contacted the RCMP and reported what she had been told. On March 8, 2019, N.A. provided a statement to the police, describing the events of October 2, 2013, and naming D.A. as the perpetrator. D.A. was charged with sexual interference under s. 151 of the Criminal Code.
[7] When N.A. testified at the trial in 2022, she was 14 years old.
III. TRIAL DECISION
[8] The Crown called three witnesses: N.A., her grandmother, and her counsellor. At trial, D.A. did not dispute that a man had entered N.A.’s bedroom and touched her in the manner she described. He also did not question her credibility but contested the reliability of her identification of him as the perpetrator….
[10] The remaining analysis of the trial judge, in convicting D.A., was as follows (R v D.A. (8 December 2022) Battleford, CRM-BF-00029-2022 (Sask KB) [Trial Decision]):
[66] When N.A. told [her grandmother] some three years later, she named D.A. as the person who touched her. When she told [the guidance counselor] in 2019, she again named D.A. She identified D.A. as the man who touched her in her trial testimony. Prior consistent statements are generally treated as hearsay, but there is an exception for “prior identification”. Out of court statements of identification may be admitted for truth of their contents where the identifying witness identifies the accused at trial. See R v Tat (1997), 117 CCC (3d) 481 (Ont CA) [Tat] at 497–98; R v Starr, 2000 SCC 40 at para 221, [2000] 2 SCR 144; R v Lugela, 2020 ABCA 348 at paras 35–45; and R v Clark, 2022 SKCA 36 at paras 99–101, in which the Court of Appeal quoted and relied on the key passage from Tat.
[69] Through the years, and at trial, she has consistently identified D.A. as the man who came into her bedroom. I am not persuaded that the discrepancy as to when she first saw his face raises a reasonable doubt. In arriving that determination, I give some effect to the fact that N.A. was a child witness, but she is nearly 15 years old, not a child of tender years. Moreover, though I mention it here, my credibility determination does not turn on her having been a child witness.
[70] I found her believable. The detail she provided was comparable to what one might expect from a young adult. There was one inconsistency that was not peripheral but, in my opinion, it does not raise a reasonable doubt as to the larger question of what happened and who did it to her. Moreover, she has been consistent over the years identifying D.A. as that person when telling her story to [her grandmother] and [the guidance counselor].
[71] I am satisfied beyond a reasonable doubt that D.A. was the man who touched N.A. in her bedroom.
V. ANALYSIS
[15] As described above, N.A. told several people over the years that D.A. was the man in her bedroom on October 2, 2013. D.A. asserts that the trial judge impermissibly used these prior consistent statements to bolster the reliability of her identification of him as the perpetrator of the offence. The Crown argues that the trial judge was entitled to look to N.A.’s prior consistent statements in assessing the reliability of this aspect of her testimony.
[17]…Reading paragraphs 65 to 70 of the Trial Decision, in the context of the entirety of the reasons, there is no doubt that the trial judge leaned heavily on N.A.’s prior consistent statements when determining the reliability of her identification of D.A. The question is whether he erred in doing so.
[18] As a general exclusionary rule, evidence of prior consistent statements by a witness is not permitted to be tendered to bolster the credibility or reliability of their testimony because such statements are considered to be self-serving and lacking in probative value:R v Dinardo, 2008 SCC 24 at para 36, [2008] 1 SCR 788; R v Stirling, 2008 SCC 10 at para 5, [2008] 1 SCR 272; and R v Evans, [1993] 2 SCR 629 (WL) at para 32. As stated by the Alberta Court of Appeal, “there is a danger in associating repetition with reliability” (R v Nault, 2019 ABCA 37 at para 19, 88 Alta LR). A witness cannot prop up their own testimony through testifying to their previous statements or having others do so for them. Self-corroboration is not permissible: Dinardo at para 38. This reflects the reality that neither a deliberate lie nor a genuine mistake becomes more likely to be true simply because it has been repeated.
[19] A number of exceptions to the prohibition on the admissibility of prior consistent statements exist. I will briefly examine some common ones without attempting to provide a comprehensive list. As observed by David M. Paciocco in “The Perils and Potential of Prior Consistent Statements: Let’s Get it Right” (2013) 17 Can Crim L Rev 181 [Paciocco 2013], the list of recognized exceptions is long and non-exhaustive.
[20] First, I would note that the Crown frequently tenders evidence about when and to whom disclosures of sexual abuse were made by a child complainant as a necessary part of the narrative. Under this exception, the evidence is not admitted as evidence of the truth of the complaint or to bolster the credibility or reliability of the child witness’s testimony. It is admissible as pure narrative, used for the limited purpose of assisting the trier of fact in understanding the chronology of events, including how the complainant’s allegation came to be disclosed: see R v George (1985), 23 CCC (3d) 42 (BCCA) at para 9, Dinardo at para 37, and Sidney N. Lederman, Michelle K. Fuerst and Hamish C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed (Markham: LexisNexis, 2022) at para 7.45.
[23] More pertinent to the matter at hand, the trial judge relied upon the specific exception of prior identification for the admission of out-of-court statements implicating D.A. as the perpetrator of the offence: “Prior consistent statements are generally treated as hearsay, but there is an exception for ‘prior identification’. Out of court statements of identification may be admitted for truth of their contents where the identifying witness identifies the accused at trial” (Trial Decision at para 66). As referenced by the trial judge, this exception was described and applied in R v Lugela, 2020 ABCA 348 at paras 43–46, 393 CCC (3d) 157; R v Starr, 2000 SCC 40 at para 221, [2000] 2 SCR 144; and R v Tat (1997), 117 CCC (3d) 481 (WL) (Ont CA) at paras 35–66.
[24] Prior consistent statements regarding identification are often admitted for the very reason that they are more reliable than an in-court identification. However, this exception emerged in response to situations such as those illustrated by Tat and Lugela, where the accused was unknown to the witness. For example, such evidence is frequently tendered in robbery trials (where the eyewitness had a brief view of the perpetrator a significant time ago) and, during their testimony, the witness points to the accused sitting in the prisoner box and identifies them as the perpetrator. The unreliability of such an identification is notorious: R v Clark, 2022 SCC 49, 475 DLR (4th) 656, adopting the dissenting reasons of Leurer J.A. (as he then was) in R v Clark, 2022 SKCA 36, 475 DLR (4th) 659. This limited weight to be given to in-court identification has led to the exception where evidence of a prior consistent identification is admissible on the basis that it is generally more reliable. [Emphasis by PJM]
[26] However, it must be kept in mind that this exception has been employed in cases where the assailant was previously unknown to the witness. The present case did not involve the identification of a stranger. D.A. was very familiar to N.A., because she had known him for her entire life and he was frequently in her home. No one questioned her identification of D.A. in court as the person whom she honestly believed had sexually assaulted her. The issue was whether, in the circumstances of this matter, N.A.’s prior consistent statements – in which she said D.A. was the man who had sexually assaulted her – were properly considered as part of the assessment of the reliability of that identification. [Emphasis by PJM]
[27] The trial judge had to examine whether N.A. might have been mistaken in identifying D.A. as the person who had been in her room and sexually assaulted her. In this regard, there was no need to turn to the statements for a description of the assailant, a prior identification, or any other purpose related to identity. Consequently, the prior consistent statements had no probative value in this regard. To the extent that the trial judge relied on the prior consistent statements for the truth of their contents to bolster the reliability of N.A.’s identification of the accused, he erred in doing so. [Emphasis by PJM]
[28] The trial judge explicitly applied the general exception from Lugela, Tat, and Starr as a central part of his reliability analysis (repeated here for emphasis): “Out of court statements of identification may be admitted for the truth of their contents where the identifying witness identifies the accused at trial” (at para 66). In doing so, he expanded the principle that these cases represent. The exceptions that govern the permissible use of such statements are informed by the reason for admissibility, which is to assist in mitigating the inherent dangers of an in-court identification: “It is not admitted to prove the truth of the earlier identification, but to add cogency to the identification performed in court” (D.F. Libling, “Evidence of Past Identification” (1977) Crim L R 268 at 271) – also see Tat at paras 38–39. This exception is intended to rebut “in whole or in part the inference that the identification is dangerous for having been made in the suggestive environment of a courtroom” (Paciocco 2013 at 212). No such danger existed here.
[29] The type of problem sought to be overcome by permitting prior identification evidence to be tendered – as described in Lugela, Tat, and Starr – does not translate to the circumstances at hand. There was no reason to rely on N.A.’s prior identification evidence. Consistently identifying a person well-known to her as the perpetrator several times, beginning three or four years after the offence had occurred, did nothing to add to the reliability of her in-court testimony. [Emphasis by PJM]
[32] I have no concern with the part of the trial judge’s analysis that evaluated the importance of the inconsistencies. However, he did not simply use the prior consistent statements to assist in determining whether the alleged inconsistencies were material and whether they, with the entirety of the evidence, raised a reasonable doubt. The trial judge went further and repeatedly used the prior consistent statements as direct support – in a manner akin to corroboration – for finding that N.A.’s evidence at trial – that it had been D.A. who had sexually assaulted her – was itself reliable. In the Trial Decision, the trial judge came back to the consistency of N.A.’s prior statements four separate times when evaluating the reliability of her testimony identifying D.A. as the perpetrator: see paragraphs 65, 66, 69, and 70. His reasons clearly illustrate that he was of the view that N.A.’s repetition made her identification evidence more reliable. This was an error.
[33] In the circumstances of this matter, a finding that N.A. consistently named the accused as the perpetrator over the years did not assist in evaluating the reliability of her in-court identification and should not have been admitted for that purpose. In my view, the evidence of N.A.’s prior consistent statements served no purpose in this matter other than to aid in evaluating the alleged inconsistencies and to provide pure narrative. The trial judge erred by using the statements for the purpose of bolstering the reliability of N.A.’s testimony regarding the identity of the person who had sexually assaulted her. Given the pivotal role that the prior consistent statements played in the trial judge’s reasons and reliability analysis, this ground of appeal must be given effect and a new trial ordered. [Emphasis by PJM]
VI. CONCLUSION
[34] The appeal is allowed, the conviction is quashed, and a new trial is ordered.
R v Watson, 2024 ONSC 6781
[December 6, 2024] Duress [Justice Heather McArthur ]
AUTHOR’S NOTE: This note highlights an important application of the modern duress defence as outlined in R v Ryan, 2013 SCC 3, particularly addressing nuanced scenarios involving implied threats and limited avenues for escape. Here’s a breakdown of the key aspects:
Key Principles and Analysis:
- Implied vs. Explicit Threats:
- This case demonstrates that the defence of duress is not limited to explicit threats. An implied threat, arising from the accused’s reasonable interpretation of circumstances (e.g., witnessing a murder and understanding the implied consequences of non-compliance), can suffice.
- The focus is on the reasonableness of the accused’s belief that harm would occur if they did not comply with the demands or actions of the threatener.
- No Reasonable Means of Escape:
- A critical component of the duress defence is the lack of a safe and reasonable avenue of escape.
- While theoretical options for escape may exist, the court must assess whether those options were reasonably available to the accused in the specific circumstances. Factors such as:
- The immediacy of the threat;
- The context in which the accused found themselves; and
- Their ability to safely seek assistance, are all considered.
- Crown’s Typical Arguments Against Duress:
- The Crown often argues:
- That the accused had alternatives or options for escape;
- That the threat was not sufficiently imminent or serious; or
- That the accused voluntarily placed themselves in a situation where duress became a factor.
- This case serves as a counterpoint, demonstrating how these arguments may fail when the accused’s options for escape are deemed unreasonable in their specific context.
- The Crown often argues:
- Practical Use for Defence Lawyers:
- Defence counsel can rely on this case to:
- Argue that threats need not be explicit to qualify as duress;
- Undermine the Crown’s assertion that theoretical alternatives for escape negate the defence, emphasizing that such alternatives must be reasonable and realistic under the circumstances.
- Defence counsel can rely on this case to:
Conclusion:
This case reinforces the flexibility of the modern duress defence under R v Ryan, providing a valuable precedent for situations where the threat is implied, and escape options, though theoretically present, are not reasonably available. It is a crucial authority for defence counsel to counteract Crown arguments that attempt to unduly narrow the scope of the duress defence.
Introduction
[1] Zachary Cust murdered Malcom Ellis by shooting him in the head. Jovane Watson drove Mr. Cust away from the scene. As a result, Mr. Watson is now facing one count of accessory after the fact to murder.
[2] Mr. Watson testified that Mr. Cust directed him to drive him away, and that he feared for his life if he did not comply. The Crown concedes that there is an air of reality to the defence of duress. Thus, the key issue is whether the Crown has disproven beyond a reasonable doubt that Mr. Watson was acting under duress when he drove Mr. Cust away from the murder.
The Evidence
The Murder
[3] In the early morning hours of November 26, 2021, five young men were gathered in the garage of Jarren Des Vignes. Along with Mr. Des Vignes and his cousin Tristan Lue, were their friends Malcom Ellis, Zachary Cust, and Jovane Watson. The men were socializing and catching up. There was nothing to suggest anything was amiss. Then suddenly, and without any warning or provocation, Mr. Cust shot Mr. Ellis in the head, killing him instantly.
Events Before the Shooting
[10] Shortly after Mr. Watson and Mr. Cust arrived, Mr. Des Vignes left the garage to use the bathroom. Mr. Cust followed him. Mr. Cust retrieved a small black satchel he had left at the Des Vignes home a few days earlier. Mr. Des Vignes did not know what was in the bag. Then, they both returned to the garage.
[11] After he returned to the garage, Mr. Des Vignes began scrolling through his Instagram. Mr. Cust was looking at his phone. Mr. Lue began to roll a joint on a table in the garage. Mr. Watson and Mr. Ellis continued with their amicable conversation. It seemed light-hearted and friendly. Everything seemed fine. No one was arguing. There did not seem to be animosity between any of the young men. In particular, there did not seen to be any problem or issue between Mr. Cust and Mr. Ellis. It was a normal and enjoyable get together.
[12] Then, without any warning, Mr. Cust shot Mr. Ellis in the head.
The Reactions to the Shooting
[13] Mr. Des Vignes, Mr. Lue, and Mr. Watson were all friends with the victim. Each of them testified about the shock and horror of seeing their friend gunned down in cold blood. Mr. Des Vignes’ mother and sister also saw Mr. Des Vignes and Mr. Lue minutes after the shooting. They confirmed that both men were distraught.
[14] It was clearly a traumatic event. Not surprisingly, the witnesses all provided somewhat different accounts of what occurred.
Jovane Watson’s Account
[25] Mr. Watson testified that he was standing “arms distance” from Mr. Ellis, catching up with his long-time friend. He drank a shot from a bottle that Mr. Ellis offered him. As they were talking, Mr. Watson heard a loud bang. Mr. Ellis dropped to the ground. Mr. Watson was shocked and confused. It took him about 10 to 15 seconds to process that Mr. Ellis had been shot. He could not wrap his mind around what was going on. As he was staring down at Mr. Ellis, he saw Mr. Cust run towards the door into the home. While still in the garage, Mr. Lue grabbed Mr. Cust and pushed him through the door and into the home. Mr. Des Vignes ran into the home. Mr. Watson felt like a “chicken with its head cut off”. He could not “think straight” and did not know what to do. As the other three men went into the home, Mr. Watson simply followed the crowd.
[26] Once in the home, Mr. Cust tripped and both Mr. Lue and Mr. Des Vignes were over him, struggling. Mr. Watson was standing just behind the three men, watching the struggle. He then saw Mr. Lue and Mr. Des Vignes back away from Mr. Cust with their hands up, as Mr. Cust told them to “Get away.” It was at that point that Mr. Watson saw the gun in Mr. Cust’s hands for the first time.
[27] Mr. Cust was waving the gun around. As Mr. Cust gestured with the gun, he told Mr. Watson “Get me the fuck out of here. Let’s go to the car.” Mr. Watson did not respond. Mr. Cust again told him to get him out of there. Mr. Cust then ran for the door. Mr. Des Vignes followed him out. Mr. Watson then ran out the door as well. He was still in shock and was just moving without much thought.
Outside of the Des Vignes Home
[28] A video clip filed at trial showed Mr. Cust, Mr. Des Vignes, and Mr. Watson running out of the home. The video depicts Mr. Watson initially running to the left, away from the direction of his car. He can then be seen changing directions and running towards the car. Mr. Watson got in the driver’s seat and Mr. Cust got in the passenger side. Mr. Watson then drove away.
[29] According to Mr. Des Vignes, he followed Mr. Cust outside to ask him why he had shot Mr. Ellis. He saw Mr. Watson run outside, but it seemed like he did not know which way to go. Mr. Cust yelled at Mr. Watson, “Let’s get the fuck out of here”, while he still had the gun in his hand. Mr. Watson seemed hesitant, but he got in the driver’s seat, and drove away with Mr. Cust.
[30] Mr. Watson testified that when he first ran out of the home, he did not know what he was doing. As he ran away from the direction of the car, he heard Mr. Cust aggressively yell, “Get in the fucking car.” He took that as a direction. He did as Mr. Cust directed because he was scared and did not know what Mr. Cust would do if he did not comply. He had just seen Mr. Cust shoot his friend Mr. Ellis. He had seen Mr. Cust threaten Mr. Des Vignes, whom he had known longer than Mr. Watson, with the gun. Mr. Watson testified that he did not want to push Mr. Cust “over the edge” and wind up being shot. Because he was afraid of what Mr. Cust would do, he got into his car and drove Mr. Cust away from the scene.
The Car Ride
[31] Mr. Watson testified that when he began to drive, he had no idea where he was going. Mr. Cust told him to drive towards the highway and directed him where to go. Mr. Cust had the gun he had just used to shoot Mr. Ellis in his lap as he directed Mr. Watson where to drive. Mr. Watson felt “very scared and very worried.”
[32] As Mr. Watson drove, Mr. Cust was on the phone, speaking to someone, perhaps his mother. Eventually Mr. Cust had Mr. Watson drive to an apartment building in the Mississauga area. Once they arrived, Mr. Cust got out of the car and put the gun in a black bag. He then walked toward the building.
[47] The defence of duress is properly characterized as an excuse, animated by the rationale of moral involuntariness: R. v. Ryan, 2013 SCC 3, at para. 23. Excuses absolve the accused of personal accountability by focussing, not on the wrongful act, but rather on the circumstances of the act and the accused’s personal capacity to avoid it. Duress provides a defence to what would otherwise be criminal conduct because the accused acted in response to an external threat. The act remains wrong, but the accused will not be punished because the act was committed in circumstances in which there was realistically no choice: R. v. Ruzic, 2001 SCC 24, at para. 24. As articulated in Ruzic, at para. 40, the defence of duress is characterized as a “concession to human frailty” in the face of “agonizing choice.”
[48] While the defence of duress is grounded in both statute and the common law, the essential elements of the two duress defences are “largely the same”: R. v. Aravena, 2015 ONCA 250, leave to appeal refused, [2015] S.C.C.A. No. 497. In Ryan, at para. 81, the court set out the following six elements for the defence of duress:
1) There must be an explicit or implicit threat of present or future death or bodily harm. This threat can be directed at the accused or a third party.
2) The accused must reasonably believe that the threat will be carried out.
3) There must be no safe avenue of escape. This element is evaluated on a modified objective standard.
4) There must be a close temporal connection between the threat and the harm threatened.
5) There must be proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must be equal to or no greater than the harm threatened. This is also evaluated on a modified objective standard.
6) The accused must not be a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association.
[49] The Crown does not have to prove that all elements of the defence do not apply. If the Crown proves that any one of the elements of the defence is inapplicable, the defence of duress fails.
[50] I will consider each element in turn.
1) Threat of Death or Bodily Harm
[51] Mr. Cust did not directly threaten Mr. Watson. The question is whether he implicitly threatened to cause Mr. Watson death or bodily harm.
[54] Instead, it is the evidence of Mr. Watson and what he saw and perceived that is key to assessing whether there was an implicit threat. In general, I thought that Mr. Watson came across well. He seemed to be genuinely answering the questions posed as best he could. He did not come across as evasive. His evidence was clear, coherent, and mostly consistent. While there were differences between his recollection and those of Mr. Lue and Mr. Des Vignes, given the chaos and trauma of the shooting, that is not surprising.
[55] There were some issues with respect to the phone calls made by Mr. Watson in the morning of November 26. Mr. Watson’s recollection that he called his brother in the early morning hours and got the voicemail does not seem to be reflected on the records. Instead, the number called at 2:59 a.m. appears to be a wrong number. His brother’s recollection of speaking with Mr. Watson in the early morning hours, also does not seem to be borne out. Further, Mr. Watson’s recollection that he called his brother after 9:00 a.m. is not borne out in the records. Rather, it appears that his brother called him. But at the end of the day, the issues as to precisely when Mr. Watson and Mr. Webster spoke, and who called whom does not cause me a great deal of concern. The calls all took place after Mr. Watson had already dropped Mr. Cust off. And the phone records generally support Mr. Watson’s memory that he spoke with his brother after he woke up the morning of November 26.
[56]….Mr. Cust yelled, “Lets go” at Mr. Watson, while still holding the gun he had used to execute Mr. Ellis. When Mr. Watson did not immediately respond, Mr. Cust repeated his demand. Again, while holding the gun. Mr. Cust’s words and actions could reasonably be seen as an implicit threat to cause significant harm to Mr. Watson if he did not do what he was told to do – get Mr. Cust out of there.
[57] Moreover, during the time that he had Mr. Cust in the car after the shooting, Mr. Cust kept his gun out and on his lap. That action could reasonably be seen as a ongoing implicit threat that Mr. Cust would cause Mr. Watson significant harm if he did not continue to follow Mr. Cust’s demands and take him wherever he directed. As Mr. Watson said, “the person with the gun has all the power.”
[58] The Crown has not disproven beyond a reasonable doubt that Mr. Cust implicitly threatened to cause death or bodily harm to Mr. Watson if he did not drive Mr. Cust away from the scene. This element of the defence of duress has been made out.
2) Reasonable Belief that the Threat Will be Carried Out
[59] The Crown argues that I should reject Mr. Watson’s testimony that he believed that Mr. Cust would shoot him if he did not drive him away from the scene for two reasons. First, he points out that Mr. Watson did not lead any evidence to suggest that Mr. Cust had a propensity for violence. That is distinct from cases such as R. v. Norman, 2021 ONCA 321.
[60] But this submission ignores the important context. Mr. Watson had just witnessed Mr. Cust execute Mr. Ellis. Only moments earlier. Whether or not Mr. Cust was a member of a gang, or had been involved in violence previously, he had just acted in a shocking, savage, and deadly way. Mr. Watson’s testimony that he was afraid because Mr. Cust had only minutes earlier murdered his friend Mr. Ellis strikes me as eminently reasonable.
[61] Second, the Crown argues since Mr. Watson and Mr. Cust were friends, he could not have reasonably believed that Mr. Cust would shoot him. But by all accounts, Mr. Cust was on friendly terms with Mr. Ellis, the man he had just murdered….
[62] Looking at the totality of the circumstances, I find that the Crown has not disproven beyond a reasonable doubt that Mr. Watson reasonably believed that he would be seriously harmed or killed if he did not drive Mr. Cust away from the scene. This element of the defence of duress has been made out.
3) No Safe Avenue of Escape
[63] The defence of duress does not apply to persons who could have legally and safely extricated themselves from the situation of duress. An objective-subjective standard is used to assess whether a safe avenue of escape existed. The test requires that the situation be examined from the point of view of a similarly situated reasonable person. The court should consider the particular circumstances facing the accused and their ability to perceive a reasonable alternative to committing a crime, and do so with an awareness of their background and essential characteristics: Ruzic, at para. 61. The process involves a “pragmatic assessment of the position of the accused, tempered by the need to avoid negating criminal lability on the basis of a purely subjective and unverifiable excuse”: Ruzic, at para. 61.
[64] The Crown argues that Mr. Watson had several safe avenues of escape, but he failed to take them. For example, the Crown argues he could have remained in the garage when the other men moved into the main home. The Crown also argues that Mr. Watson could have stayed in the Des Vignes home after Mr. Cust ran outside and locked the door to the home. Or, he argues, Mr. Watson could have continued to run away from the direction of the car after he went outside, instead of veering back and getting in the car with Mr. Cust.
[65] When these potential avenues of escape were put to Mr. Watson in cross-examination, he maintained that they were not safe. As he explained, there was nothing stopping Mr. Cust from kicking in the door to the home and coming back in with his gun, thereby endangering not just Mr. Watson, but Mr. Lue and Mr. Des Vignes as well. There also was nothing stopping Mr. Cust from shooting him if he tried to run away.
[67] Looking at the totality of the evidence, I find that the Crown has not disproven beyond a reasonable doubt that Mr. Watson had no safe avenue of escape. This element of the defence of duress is made out.
4) Close Temporal Connection
[68] The Crown reasonably concedes that if the first three elements have been established, that there was a close temporal connection. I agree.
5) Proportionality Between the Harm Threatened and the Harm Done
[70] The Crown also concedes that the act of driving Mr. Cust away from the scene was a proportionate response to the implicit threat. Again, I agree.
6) Participation in a Conspiracy or Criminal Organization
[72] The final element of the defence of duress, requires that the accused not be a party to a conspiracy or association whereby they are subject to compulsion and knew that threats and coercion to commit an offence were a possible result of the criminal activity, conspiracy, or association: Ryan, at para. 78.
[73] Once again, the Crown reasonably concedes this element. I agree with this concession….
Conclusion
[74] The Crown has not disproven beyond a reasonable doubt that Mr. Watson was acting under duress when he drove Mr. Cust away from the scene of the murder.
[75] As a result, I find Mr. Watson not guilty
R v Osaigbovo, 2024 ONSC 6914
[December 11, 2024] Mistrial for Missing Written Reasons [Edwards R.S.J.]
AUTHOR’S NOTE: This case illustrates a rare procedural issue arising from a trial judge’s failure to deliver promised written reasons for conviction before retiring, leaving the proceedings in a state of uncertainty. The subsequent decision by the Regional Senior Judge (RSJ) to declare a mistrial—rather than allowing the case to proceed to appeal—offers a valuable precedent for addressing similar circumstances.
Key Points and Analysis:
- Failure to Provide Reasons:
- The trial judge convicted the accused and stated that written reasons would follow but retired before fulfilling this obligation.
- In criminal law, providing reasons for a decision is essential to ensure:
- The accused understands the basis of their conviction;
- There is a record for appellate review; and
- The principles of natural justice and procedural fairness are upheld.
- Role of the Regional Senior Judge:
- The RSJ stepped in to determine the fate of the Indictment in the absence of reasons for some of the counts.
- While appellate intervention might typically be sought, the RSJ recognized that waiting for an appeal would perpetuate the miscarriage of justice already present.
- Declaration of a Mistrial:
- The RSJ concluded that the lack of reasons constituted a miscarriage of justice and warranted a mistrial.
- This approach underscores the court’s duty to safeguard the integrity of the trial process and ensure fairness to all parties, even when the charges are serious.
- Alternative to Appeal:
- Rather than prolong the process by requiring the accused to appeal the convictions, the RSJ’s decision provides a practical remedy to address the procedural failure at an earlier stage.
- This case demonstrates that trial-level remedies, like a mistrial, may be appropriate when:
- Essential procedural steps (e.g., providing reasons) are missing; and
- Immediate intervention is necessary to prevent further injustice.
Conclusion:
This decision underscores the principle that procedural fairness is paramount, even in cases involving serious charges. By directing a mistrial rather than leaving the matter for appeal, the RSJ provided a timely remedy to address the miscarriage of justice. It is a useful authority for defence counsel facing similar procedural irregularities in future cases.
Overview
[1] Trial judges are required to give reasons for their decision whether they are convicting or acquitting an accused. Sometimes, the trial judge due to various exigencies may give a bottomline decision “with reasons to follow”. With the best of intentions this is precisely what happened on September 22, 2023 when the trial judge convicted Mr. Osaigbovo with written reasons to follow. The matter came back on September 22, 2023, again on January 6, 2024 and March 18, 2024. Counsel understood that on these re-attendances written reasons would be provided prior to sentencing. Unfortunately, the trial judge is now retired and it falls upon me to determine whether under s. 669.2 of the Criminal Code of Canada (the “Code”) the reasons provided by the trial judge are sufficient to allow me to impose sentence. I also deal with the motion brought by Mr Osaigbovo seeking a mistrial.
[7] The judgment dated September 22, 2023 reflected in the electronic endorsement provides as follows:
Count 1 tampering of firearm – finding of guilt
Count 2 careless use/storage of firearm with ammo – finding of guilt
Count 3 unauthorized possession of a motor vehicle – finding of guilt
Count 4 possession of firearm with ammunition – finding of guilt
Count 5 possession of weapon dangerous – finding of guilt
Count 6 possession for the purpose of trafficking – finding of guilt
Count 7 unauthorized possession of firearm – finding of guilt
[10] The transcript of September 22, 2023 is five and a quarter pages in length. The oral reasons for conviction as it relates to the firearms charge and the possession for the purposes charge are brief. There are no reasons for the remaining counts. The transcript does not reflect the comment of the trial judge that he “promised” to have his written reasons prior to the next return date. The next return date was scheduled for December 22, 2023 to deal with sentencing submissions.
[11] After September 22, 2023 there were five times this matter came back before the trial judge. The last date the matter was before the trial judge was on March 14, 2024. No written reasons were provided by the trial judge on any of the five dates the case was back before him. On April 11, 2024 this matter first came before me in my capacity as the Regional Senior Justice for the Central East Region. I advised counsel that the trial judge was unwell. Eventually counsel were advised that the trial judge had retired.
Analysis
[12] The process by which the trial judge reached his conclusion as it relates to the possession for the purposes of trafficking charge and the firearms charge could provide this court with sufficient information to impose sentence. What makes this case more complicated is the fact his oral reasons give no basis upon which to impose sentence on the remaining three counts. When I raised this concern, Crown counsel immediately agreed to enter a stay as it relates to those remaining three counts. But what makes this case even more complicated is that the trial judge found Mr Osaigbovo guilty on two additional counts for which Mr Osaigbovo was never arraigned.
[14] Section 123(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”) provides for timelines for the delivery of reasons: for judgment it is six months and for any other matter it is three months. It is important to note that the “chief judge may extend the time in which the decision may be given and if necessary, relieve the judge of his or her duties until the decision is given.”
[15] In addition to the timelines set forth in s. 123(5) of the CJA, judges are expected to adhere to the Ethical Principles for Judges (the “Ethical Priniples”) published by the Canadian Judicial Counsel (the “CJC”) and available on the CJC website. As it relates to the delivery of reasons the Ethical Principles provide as follows:
The preparation of judgments is frequently difficult and time consuming. Judges are expected to produce their decisions and reasons for judgment as soon as reasonably possible, having regard to the urgency of the matter and the length or complexity of the case. In this respect, the CJC has resolved those reserved judgments should be delivered within a maximum of six months after hearings, except in special circumstances. Judges must also comply with legal requirements associated with timeliness of judgments applicable in their jurisdiction. While judges strive to be diligent in the performance of their judicial duties, their ability to do so may be affected by various factors, including illness, exceptionally heavy burdens of work or the inadequacy of resources supporting their work.
[16] The Ethical Principles suggest a maximum of six months for the delivery of reasons, subject to exceptional circumstances. The governing legislation in Ontario as set forth in s. 123(5) of the CJA also provides for a six-month deadline. The difference between the Ethical Principles and s. 123(5) is that the CJA provides the Chief Justice, and by definition the Regional Senior Justice, the discretion to grant extensions where appropriate.
[17] In the case of Mr Osaigbovo the trial judge took his decision under reserve on July 10, 2023. While he gave brief oral reasons on September 22, 2023 it is clear from the Indictment and from listening to the audiotape of the proceedings of September 22 that the trial judge had promised to give written reasons. Those written reasons would have been due six months from July 10, 2023 i.e., January 10, 2024.
[19] It is a fundamental principle of our law that not only must justice be done but it must be seen to be done. In this case the parties have only the very brief oral reasons of the trial judge that explain the reasons for the conviction as it relates to the possession for the purposes of trafficking and the firearm possession. The parties have no idea why the trial judge then registered convictions for the remaining three counts and the two additional counts.
[20] There is not a large body of case law that has interpreted s. 669.2 of the Code. In R. v. Gionet, 2016 ONSC 6894, Templeton J. dealt with a somewhat similar situation as occurred in this case. The trial judge had retired and Templeton J, was faced with a motion for a mistrial.
What differentiates Gionet from Mr Osaigbovo’s case is that the trial judge in that case had released a complete set of reasons. In denying the mistrial motion Templeton J. dealt at some length with the appearance of justice being an essential element in any trial. At paragraphs 31-34 Templeton J. stated:
[31] In R. v. Kokopenace, the Supreme Court of Canada affirmed a prior reference by the Court in R. v. Barrow , “[h]e also emphasized another key point: the importance — the “crucial” importance — of the appearance of justice, namely “the public perception of the fairness of the proceedings.”
[32] The appearance of justice concerns the effect of the proceedings as they would appear to the average citizen.It concerns the public perception of the fairness of the proceedings.
[33] On a Motion such as this, the court looks at the impression of justice that would be given to other people.
[34] It is axiomatic that at its core, justice is the “legal or philosophical theory by which fairness is administered”. The appearance of justice concerns the public manifestation and impression of the implementation of justice.
[21] In Mr Osaigbovo’s case the public would be justifiably upset if his case was dismissed on what some might describe as a technicality. Members of the public on the other hand may very well be concerned if they were told about the history of this case and the statutory requirement for all trial judges to provide reasons for their decision in a timely manner and certainly within the six-month guideline. Members of the public would also be concerned about procedural and trial fairness to learn that the trial judge convicted Mr Osaigbovo of 2 counts that he was never arraigned on.
[22] A mistrial is a remedy of last resort. It has sometimes been referred to as the nuclear weapon in the hands of the trial judge. A mistrial should only be declared if there is no other remedy available to prevent a miscarriage of justice.
[23] The leading decision from the Supreme Court of Canada as it relates to the jurisdiction of a trial judge to declare a mistrial is R. v. Burke, 2002 SCC 55. At paragraph 75 the Court stated:
In declaring a mistrial, the trial judge therefore turns his or her mind to the question of whether a mistrial is needed to prevent a miscarriage of justice. This determination will necessarily involve an examination of the surrounding circumstances. Injustice to the accused is of particular concern, given that the state with all its resources acts as the singular antagonist of the individual accused in a criminal case. This factor should be balanced against other relevant factors, such as the seriousness of the offence, protection of the public and bringing the guilty to justice….
[25] In this case a miscarriage of justice has occurred. The parties were not provided with the written reasons the trial judge promised. The oral reasons only gave a minimal insight as to why he convicted Mr Osaigbovo of the possession for the purposes of trafficking and one firearms charge. There are no other reasons for the remaining 3 counts nor any reasons for the additional 2 counts.
[27] What happened in this case was not the fault of any of the parties and was certainly not the fault of any of the lawyers. While the charges were serious the evidence in this case was completed in two days with a further day set aside for submissions. The trial judge regrettably did not provide the written reasons he had promised the parties. It is regrettable the trial judge retired but more than adequate time was afforded for the release of the promised written reasons. None were forthcoming and in this case, it is not appropriate to rely on s. 669.2 of the Code to impose sentence on Mr Osaigbovo. A mistrial is declared.
