This week’s top three summaries: R v Thompson, 2023 SKCA 66: #credibility of accused, R v Freedland, 2023 ONCA 386: prior consistent #statements, and R v Sohal, 2023 BCCA 256: DO standard of high #likelihood.
This week’s top case deals with the judicial treatment of accused testimony. For great general reference on the law and practice of witness prep, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
Witness Preparation, Presentation, and Assessment
By Justice Cameron Gunn, Mona Duckett, & Patrick McGuinty
R v Thompson, 2023 SKCA 66
[May 31, 2023] Credibility of the Accused: Interest in the Outcome of the Trial [Reasons by Kalmakoff J.A. with Barrington-Foote and McCreary JJ.A. concurring]
AUTHOR’S NOTE: The assessment of the accused’s testimony in this case began with the following statement, “One, he is obviously motivated by self-interest.” While the judge piled on other reasons, the Court of Appeal could not shake the thread that the trial judge has discounted the evidence of the accused simply because he was charged with a crime and decided to testify in his own defence. This method of assessing the testimony of any accused person undermines the fundamental principle of the presumption of innocence. A trial judge is not permitted, in law, to assume any discount of credibility to the testimony of an accused simply because of their interest in securing an acquittal. While the law does not make an accused’s motive to secure an acquittal completely irrelevant, such a consideration cannot undermine the presumption of innocence. In practice, it is difficult to imagine a set of circumstances in which anything but a passing reference to the interest of an accused in securing an acquittal in the assessment of their credibility could withstand appropriate appellate review.
I. INTRODUCTION
[1] Following a trial in Provincial Court, Tony Thompson was convicted of eight Criminal Code offences, all of which stemmed from the fact that a loaded prohibited firearm was found in a backpack he had in his possession. The trial judge sentenced Mr. Thompson to a total of 49 months and 15 days in the penitentiary, in addition to 23 months and 15 days of credit for pre- sentence custody and prohibited him from possessing firearms for life.
[2] …In my respectful view, the trial judge erred in law by treating Mr. Thompson’s interest in the outcome of the proceedings as a factor that negatively affected his credibility as a witness. This error had a clear impact on the verdict and, as a result, the convictions cannot stand; there must be a new trial. In light of that, it is unnecessary to address the sentence appeal.
II. BACKGROUND
[3] The charges against Mr. Thompson arose out of events that occurred on June 5, 2019. That evening, Mr. Thompson, who was well known to police, was seen in downtown Regina by several on-duty, plainclothes officers. When he was first spotted, Mr. Thompson was wearing a black backpack, leaning on a bicycle, and speaking to a woman outside a residence. The officers learned there was an outstanding warrant for Mr. Thompson’s arrest for violating the conditions of a release order. As Mr. Thompson rode away from the residence on the bicycle, one of the officers approached him and asked if he wanted to “take care of” the outstanding warrant. Mr. Thompson told the officer he was not interested in doing that and pedaled off down the street.
[4] A short time later, another officer approached Mr. Thompson, identified himself and told Mr. Thompson to stop. Mr. Thompson kept going. He rode down a back alley, out of the police officers’ view, and disposed of his backpack by throwing it into a recycling bin behind a business. Mr. Thompson was arrested a short time later, and the police officers recovered the backpack soon after that. Among the items inside it were a sawed-off shotgun with a live round in the chamber, other loose ammunition, 17 unused needles, a black glove, a toothbrush, men’s clothing and underwear, a cellular phone and some cologne.
[5] The toothbrush in the backpack had Mr. Thompson’s DNA on it. The handle of the firearm contained DNA profiles of mixed origin – at least one of which was from a male person – that were not of sufficient quality to permit comparison to a known sample….
[6] The determinative issue at trial was whether Mr. Thompson knew the firearm and ammunition were in the backpack. The Crown led no direct evidence respecting his knowledge; its case against him in that regard was circumstantial.
[7] Mr. Thompson testified that he did not know the firearm or ammunition were in the backpack. He said he had received the backpack that evening from a woman named Jessica Parisian, with whom he had an “on-again off-again” relationship. Mr. Thompson testified that, in the days leading up to June 5, 2019, he had been staying elsewhere with another woman. He said he had contacted Ms. Parisian that day and asked her to bring him his clothes and other personal items, and that she had given him the backpack, which he believed contained those items. He testified that, a short time after leaving the location where he had met with Ms. Parisian, he saw persons who he recognized as police officers, and they advised him that he had an outstanding warrant. He said he ran from the police because he did not want to be arrested on that warrant, and that he disposed of the backpack by throwing it into “a random garbage can” because it was slowing him down, and he “didn’t want to get caught with it”. He elaborated on this explanation by saying that, as an Indigenous person, he had not had good experiences with the police, and he did not trust them to safeguard his property, so he decided to stash the backpack in the bin so he could retrieve it later. Mr. Thompson maintained that he never looked inside the backpack and that he did not know it contained a firearm or ammunition. When asked to explain what he thought had been in the backpack, given its substantial weight, he surmised that it might have been a laptop computer or a Bluetooth speaker.
[8] Ms. Parisian also testified for the defence. Her testimony confirmed several aspects of Mr. Thompson’s story. In particular, she said she had packed the backpack with his things, which had been located at her residence, at his request. She claimed that the shotgun and ammunition found inside the backpack belonged to her, as did the needles and the black glove. She said she had forgotten that the shotgun was in the backpack and had inadvertently packed the rest of Mr. Thompson’s items in there with it because she was “in a rush” that day. She said that she did not realize she had given Mr. Thompson her firearm until a few days later when she spoke to him and learned that he was in jail.
[9] The trial judge ultimately rejected the testimony of Mr. Thompson and Ms. Parisian…
B. The trial decision
[15] In his reasons for conviction, which were delivered orally, the trial judge began by stating that “the only real issue in this case is whether or not Mr. Thompson was aware that the firearm was contained in the backpack he was carrying on the evening of June 5, 2019” (R v Thompson (14 October 2020) Regina, Provincial Court (Sask) [Trial Decision]). He then reviewed and summarized the evidence given by the witnesses who testified for the Crown. The trial judge followed that by recounting the evidence given by Ms. Parisian and Mr. Thompson. As part of this review, the trial judge considered and assessed the credibility of their testimony. In short, he found neither of them to be credible.
[16] The trial judge gave several reasons for why he rejected Ms. Parisian’s testimony…
[17] The trial judge then moved on to Mr. Thompson’s testimony, reviewing and analyzing it in detail, and referring to several aspects of it that he found to be implausible, inconsistent, or unbelievable. Ultimately, the trial judge rejected Mr. Thompsons’ assertion that he did not know what was in the backpack, stating:
In my view, Mr. Thompson was well aware that the backpack was heavy because he was well aware that it contained a loaded sawed-off shotgun and ammunition. His actions that evening spoke volumes as to his knowledge. For example, number 1, as soon as he spots police, he begins to run notwithstanding the fact that he testified he was doing nothing illegal in his opinion at that moment. Two, Mr. Thompson then rides through the downtown area on his bike with the backpack on his back for nearly 15 minutes before throwing the backpack in a dumpster as police are closing in and less than a minute prior to his arrest and at a point when he was very near his destination of Ms. Parisian’s father’s place.
In the Court’s view, Mr. Thompson knew he could not get caught with that backpack because he knew full well what it contained, and he knew full well what the consequences would be if the police caught him with it. An explanation that he dumped it because it was heavy makes no sense when he drove around for 15 minutes previously and only dumped it when police were closing in. His alternative explanation that he dumped it because the police are always losing his stuff also made no sense because he placed the bag in what he thought was a dumpster which means the items in the bag would be lost forever somewhere out in the landfill. Mr. Thompson of course knew this, and this was his hope, not because he was worrying about the police losing his stuff but because he was worried about the police finding his stuff, including the loaded sawed-off gun. This is the only rational conclusion to arrive at from Mr. Thompson’s actions.
[18] The trial judge next referred to, and quoted from, the Supreme Court of Canada’s decision in R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000 [Villaroman] as a self-instruction on the manner in which to assess a case based on circumstantial evidence, and in recognition of the need to consider other plausible theories in determining whether the guilt of the accused is the only logical inference to be drawn. After doing that, he said:
This Court has considered alternatives to what possible lawful reason Mr. Thompson may have had the shotgun in his backpack, and none of them meet the test in Villaroman. The only logical conclusion based on the known actions of Mr. Thompson that evening is that he was fully aware of the shotgun in the backpack and was trying to hide this evidence by placing the bag in the dumpster.
Assessing Mr. Thompson’s credibility I note the following: One, he is obviously motivated by self-interest. Two, he has at least some history of dishonesty. He referenced a conviction for armed robbery out of Saskatoon. Three, Mr. Thompson had problems keeping his story straight and had many inconsistencies in his testimony. Four, his evidence contradicted more credible evidence, for example, the weight of the bag and something hard being in it. Constable Nicholson’s evidence was far more reliable and credible in that regard. Ambiguity in answers. Mr. Thompson was all over in cross-examination and had numerous inconsistencies. Six, the overall likelihood of events unfolding as he testified to were inconsistent with human experience.
(Emphasis added)
[19] The trial judge also stated that he did not believe Mr. Thompson because his testimony was inconsistent and his explanation for why he had disposed of the backpack in the bin was not logical.
C. Analysis
[21] As Mr. Thompson’s arguments allege that the trial judge made a legal error in assessing the credibility of witnesses, it is useful to briefly examine some of the legal principles that govern appellate review where such an allegation is made.
[22] There are two aspects of a witness’s evidence that a trial judge must consider: credibility and reliability. Credibility has to do with the veracity of a witness’s testimony; reliability has to do with its accuracy. Trial judges must recognize this distinction and must consider both aspects of a witness’s testimony when making factual findings. A witness who is not credible cannot give reliable evidence (R v H.C., 2009 ONCA 56 at para 41, 241 CCC (3d) 45; R v Schaff, 2017 SKCA 103 at para 43). However, even a witness who is credible may provide unreliable evidence because honest witnesses can misperceive events, have poor memory, or just be wrong (R v Wolff, 2019 SKCA 103 at paras 38–39, 380 CCC (3d) 223).
[23] In this case, the trial judge rejected the evidence given by Mr. Thompson and Ms. Parisian because he found that neither of them was credible.
[26] Mr. Thompson contends the trial judge improperly relied on the fact that he was “obviously motivated by self-interest” as a reason for rejecting his evidence. Mr. Thompson says this statement is indicative of a legal error in the trial judge’s reasoning process, because the assumption that an accused person will lie to secure an acquittal “flies in the face of the presumption of innocence”. In support of this argument, he cites R v Laboucan, 2010 SCC 12, [2010] 1 SCR 397 [Laboucan].
[27] Laboucan instructs that it is improper for a trier of fact to assume that an accused person will lie to secure an acquittal. To put that another way, it is an error of law to reason that testimony given by an accused person is inherently less worthy of belief just because that person has an obvious interest in being acquitted. In that regard, writing for a unanimous Court, Charron J. stated that although the “fact that a witness has an interest in the proceedings is, as a matter of common sense, a relevant factor, among others, to take into account when assessing the credibility of the witness’s testimony” (at para 11), it must not be given undue weight, especially when that witness is an accused person testifying in their own defence:
[12] The common sense proposition that a witness’s interest in the proceedings may have an impact on credibility also applies to an accused person who testifies in his or her defence. The fact that the witness is the accused, however, raises a specific concern. The concern arises from the fact that both innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accused has a greater interest in securing an acquittal. Therefore, any assumption that an accused will lie to secure his or her acquittal flies in the face of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome. In R. v. B. (L.) (1993), 13 O.R. (3d) 796 (C.A.), Arbour J.A. (as she then was) succinctly described the inherent danger in considering the accused’s motive arising from his or her interest in the outcome of the trial. In an often- quoted passage, she stated as follows (at pp. 798-99):
It falls into the impermissible assumption that the accused will lie to secure his acquittal, simply because, as an accused, his interest in the outcome dictates that course of action. This flies in the face of the presumption of innocence and creates an almost insurmountable disadvantage for the accused. The accused is obviously interested in being acquitted. In order to achieve that result he may have to testify to answer the case put forward by the prosecution. However, it cannot be assumed that the accused must lie in order to be acquitted, unless his guilt is no longer an open question. If the trial judge comes to the conclusion that the accused did not tell the truth in his evidence, the accused’s interest in securing his acquittal may be the most plausible explanation for the lie. The explanation for a lie, however, cannot be turned into an assumption that one will occur.
(Emphasis added by Charron J.)
[28] However, the Court in Laboucan did not go as far as to create an absolute rule that would prohibit trial judges from ever referring to, or taking account of, an accused person’s interest in the outcome of the case when assessing credibility. In that regard, Charron J. wrote:
[15] An absolute rule prohibiting the trier of fact from considering that an accused may have a motive to lie in order to secure an acquittal, regardless of the circumstances, would artificially immunize the accused in a manner inconsistent with other rules of evidence that provide special protection to the accused. Courts have consistently rejected prohibitive rules that would result in a trier of fact acting upon a misleading view of a case. …[W]hether or not it is appropriate for the trier of fact to consider that the accused may have a motive to lie because of his or her interest in the trial will depend on the evidence and the issues raised at trial.
(Italicized emphasis in original; underlined emphasis added)
[29] …“[a]t the end of the day, the determining question is whether the trial judge’s comments undermined the presumption of innocence” (at para 18). See also: R v Sium, 2022 SKCA 102 at paras 22–28.
[30] Laboucan makes the point that the determination of whether a trial judge commits an error of law by referring to, or taking account of, an accused’s motive to lie depends largely on context. In that case, the Supreme Court found that the trial judge had not erred by taking account of Mr. Laboucan’s self-interest when assessing his credibility, because the central pillar of his defence had involved challenging the credibility of each of the Crown’s main witnesses – who were all involved to some extent in the events that led to Mr. Laboucan being charged – “on the basis that they had a motive to lie and fabricate evidence against him, either to exculpate themselves in other proceedings or to minimize their participation in the crime” (at para 21). As Charron J. explained:
[22] In these circumstances, where the defence theory rested on the contention that each witness who implicated Mr. Laboucan lied out of self-interest, it was entirely appropriate for the trial judge to consider that the witnesses would have had no, or less reason, to be untruthful on particular points of evidence in respect of which Mr. Laboucan provided radically inconsistent testimony….
[31] The contextual underpinning of Mr. Thompson’s case was nothing like the situation in Laboucan. The evidence was very different, the parties’ respective theories of the case were different, and the legal issues in play were different. Unlike in Laboucan, the Crown’s case against Mr. Thompson involved six witnesses who were police officers and one who was a civilian member of the RCMP; it did not hinge on witnesses who were complicit in the crimes with which Mr. Thompson was charged. There was also no suggestion by Mr. Thompson that any of the Crown’s witnesses had fabricated, embellished, or slanted their testimony against him out of self- interest. In conducting his credibility assessments, the trial judge made no reference to any witness other than Mr. Thompson being motivated by self-interest. In that respect, and considered in that context, it is extremely difficult to read the trial judge’s reference to Mr. Thompson being “obviously motivated by self-interest” as anything other than a conclusion that his evidence had to be viewed with suspicion simply because of his status as an accused person.
[32] In saying this, I recognize that the trial judge also mentioned several legally valid reasons that caused him to be concerned about Mr. Thompson’s credibility. For example, the trial judge identified a number of instances where he found Mr. Thompson’s evidence to be either internally inconsistent, self-contradictory, or simply implausible. However, in addition to making such findings, the trial judge also said this:
In the Court’s view, Mr. Thompson knew he could not get caught with that backpack because he knew full well what it contained, and he knew full well what the consequences would be if the police caught him with it.
… He dumped the bag in the dumpster because he knew exactly what was in the backpack, and he could not risk getting caught with it in his possession, given that he was under a lifetime ban for possessing firearms not to mention a loaded prohibited weapon.
[33] In my view, these portions of the trial judge’s reasons confirm the error in his approach. Having already referred to Mr. Thompson’s self-interested motivation as a factor that bore negatively on his credibility, the trial judge effectively doubled down on that point by identifying the additional consequences that Mr. Thompson knew he would face, due to the fact that he was also subject to a lifetime firearms prohibition order, as a reason for finding that his testimony lacked credibility. By doing so, the trial judge considered Mr. Thompson’s interest in the outcome of the proceedings in a way that undermined the presumption of innocence.
[34] To close the loop on this, I will point out that I recognize the impugned comments regarding Mr. Thompson’s self-interest must be considered in light of the trial judge’s express recognition of the need to apply the principles set out in W.(D.) and McKenzie in assessing credibility. However, he also said this:
In … assessing credibility, I must consider any inconsistencies in previous statements or testimony including as between evidence-in-chief and cross-examination; partiality or motivation due to self-interest; character, including history of dishonesty; capacity to observe, remember, and communicate; contradictory evidence which is more credible; hesitancy and ambiguity in answers, particularly in cross-examination; equivocation in responses; qualified responses; inability to clearly testify to significant collateral details; apparent selective memory; inconsistencies or suspicious behaviour on the witness stand. In addition to the credibility of the witness qua his or her own person, I must consider the essential credibility of their testimony in light of the overall likelihood of events unfolding as testified, inconsistencies with human experience, and inconsistency with verifiable surrounding events.
(Emphasis added)
[35] The foregoing passage is not a wholly inaccurate statement of the law; partiality and motivation due to self-interest are relevant factors when assessing the credibility of non-accused witnesses. However, Laboucan makes it quite clear that trial judges must be alive to the specific concerns that apply when making determinations about the credibility of accused witnesses, and that it is improper to reason as though an accused person’s interest in securing an acquittal makes them more likely to lie. In other words, when assessing the evidence of an accused witness, factors such as partiality and motivation due to self-interest are not to be considered in the same way they are considered for non-accused witnesses. When I read the trial judge’s reasons as a whole and in the context of the trial, I am unable to conclude that he recognized, or applied, that distinction.
[36] In short, based on the evidence and the issues that were raised at trial, this was not a case in which it was appropriate for the trier of fact to consider Mr. Thompson’s interest in the outcome of the trial as providing a motive to lie that affected his credibility. In my respectful view, the trial judge treated Mr. Thompson’s interest in being acquitted as providing such a motive and, by doing so, erred in law. This error had an obvious bearing on the verdict.
IV . CONCLUSION
[39] I would allow the conviction appeal, set aside the convictions resulting from the Trial Decision, and order a new trial. The sentence appeal is moot.
R v Freedland, 2023 ONCA 386
[May 30, 2023] Prior Consistent Statements: Need for a Strong and Clear Jury Instruction [Reasons by Doherty J.A. with A. Harrison Young and Thorburn JJ.A. concurring]
AUTHOR’S NOTE: Misuse of prior consistent statements is encouraged by instructions to a jury that invite them to use their common sense. Without a clear instruction on the law that prohibits the use of prior consistent statements to enhance credibility, juries cannot be trusted to not misuse such utterances in the context of a criminal trial. That is the core message of this case. Here, the jury heard about how the witness’ statements first came to the police under the guise of “narrative” and the judge gave a mid-trial instruction that that was the use of the evidence. The Crown did not rely on the statements in closing submissions to buttress credibility. Nonetheless, the Court of Appeal found that the failure to specifically instruct on prior consistent statements caused an error sufficient to overturn the conviction.
Did the trial judge err in failing to instruct the jury on the limited use of Mr. James’s prior consistent statements?
[30] Mr. James was initially arrested on charges involving his former domestic partner. While sitting in the police vehicle with one of the arresting officers, Mr. James indicated that his life was in danger and he started to talk about his involvement with the appellant and the plan to kidnap and extort the lawyers.
[31] In response to questions from the Crown, the arresting officer proceeded to describe, in detail, the statements made to him by Mr. James. In addition, the Crown asked the officer about the content of a videotaped interview Mr. James had with other police officers the next day. The testifying officer summarized the content of Mr. James’s videotaped statement, again in some detail.
[32] As the officer continued to repeat what Mr. James had said to the other officers on the videotape, the trial judge interrupted to inquire why the officer was giving evidence about the content of Mr. James’s statements. The trial judge then instructed the jury:
[Y]ou’ve heard a lot of things that Mr. James told this officer. You’re hearing them, not because the Crown is adducing them for the truth of their contents but just simply as part of the narrative to assist you in understanding why the police did what they did after receiving certain information. But I think, out of caution’s sake, that account should come from Mr. James’s mouth.
[33] Despite the trial judge’s admonition that “the account should come from Mr. James’s mouth”, Crown counsel elicited further evidence from the police officer about statements made to him by Mr. James. The Crown also elicited evidence that some of the statements had been confirmed by subsequent investigations.
[34] At the morning break, the trial judge repeated his concern about the officer’s recitation of the content of the statement given by Mr. James. The trial judge indicated that he had cautioned the jury about the hearsay nature of the evidence and planned to do so again.
[35] The appellant was not represented by counsel during the police officer’s evidence.
[36] The trial proceeded. There were no further mid-trial instructions relating to the prior consistent statements. Nor did the trial judge, in his final instructions, tell the jury about the limited use it could make of the prior consistent statements. The jury was never told that it could not use consistencies between the content of Mr. James’s statements to the police, as reported by the police witness, and Mr. James’s testimony, to enhance the credibility or reliability of that testimony.
[37] If admissible at all, prior consistent statements can be used only for certain specified purposes: see e.g. R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at paras. 25-40, leave to appeal refused, [2017] S.C.C.A. No. 139; Watt, Manual of Criminal Evidence, at para. 19.08. When prior consistent statements are admitted, the trial judge should make it clear to the jury that a prior statement made by a witness that is consistent with the testimony of that witness does not, in and of itself, make the witness’s testimony more credible: R. v. W.E.G., 2021 ONCA 365, 73 C.R. (7th) 141, at paras. 21-22; R. v. M.P., 2018 ONCA 608, 363 C.C.C. (3d) 61, at paras. 79-80; and R. v. Demetrius (2003), 179 C.C.C. (3d) 26 (Ont. C.A.), at para. 21. Repetition does not enhance credibility: R. v. Austin (2006), 214 C.C.C. (3d) 38 (Ont. C.A.), at para. 33; R. v. Divitaris (2004), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28.
[38] In R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 42, the majority observed:
As previously noted, because there is a danger that the repetition of prior consistent statements may bolster a witness’s reliability, a limiting instruction will almost always be required where such statements are admitted. The purpose of such an instruction is to tell the jury that consistency is not the same as accuracy[.]
[39] Crown counsel accepts the authorities set out above. He further submits, however, quite correctly, that the failure to give a limiting instruction referred to in those authorities, is not necessarily fatal: see e.g. R. v. M.A.J., 2015 ONCA 725, 25 C.R. (7th) 187, at paras. 45-47. A submission that the failure to give a limiting instruction with respect to prior consistent statements does not constitute a reversible error, often rests on two overlapping arguments. First, it is sometimes argued that a limiting instruction, while appropriate if given, was not necessary to a proper jury charge in the circumstances of the particular case. This submission is usually premised on the minor role played by the prior consistent statements in the overall evidentiary picture presented at trial: see e.g. R. v. I.W., 2022 ONCA 251, 412 C.C.C. (3d) 542, at para. 44; R. v. J.H., 2020 ONCA 165, at paras. 108, 114 and 126. This argument reflects the well-established principle that jury charges must be assessed from a functional perspective. Not every legal principle engaged in the course of a trial, no matter how peripheral, needs to be the subject of judicial instruction: see e.g. R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 8. The appellant bears the burden of demonstrating that non-direction in the particular case amounts to misdirection constituting an error in law.
[40] The second argument sometimes advanced accepts that the non-direction constituted an error in law, but argues that the error caused no substantial wrong or miscarriage of justice. In invoking the curative proviso, the Crown will often point to many of the same factors relied on to support the argument that a limiting instruction was unnecessary. For example, the relative insignificance of the prior consistent statements in the overall evidentiary picture will often figure prominently in the Crown’s no substantial wrong argument: see M.P., at paras. 85-88. In support of the no substantial wrong claim, the Crown will also usually refer to the overall strength of the Crown’s case: see e.g. R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 26.
[41] The Crown makes both arguments on this appeal. He submits that the limiting instruction was unnecessary and that, in any event, the curative proviso can be applied. Counsel contends that it was significant that the trial Crown did not suggest in argument that the consistency between the content of Mr. James’s statements to the police and his testimony made Mr. James more credible. Nor, says the Crown, was Mr. James asked to repeat in his evidence what he said to the police.
[42] …Juries are repeatedly told to use their common sense and human experience. Some jurors, left unschooled by the trial judge on the use of prior consistent statements, could reasonably conclude that the fact that a witness gave virtually the same version of events upon his arrest as he did months later at trial, would enhance the witness’s credibility.
[43] The Crown also submits that it was the defence that wanted to explore the details of Mr. James’s prior statements. Even if the Crown had not led those details, the defence inevitably would have done so in the course of its cross-examination.
[44] The Crown may be correct. However, if the Crown’s elicitation of Mr. James’s prior consistent statements was premised on the understanding that he would be cross-examined on inconsistencies in those statements, Crown counsel should have at least canvassed with the trial judge the propriety of assuming the nature of the pending cross-examination. The need to raise the issue with the trial judge before adducing the prior consistent statements is particularly important when, as here, the appellant was not represented by counsel at that stage of the trial. In any event, cross-examination on inconsistencies in Mr. James’s prior statements would not, in all likelihood, have removed the need for an instruction to the effect that the consistency between Mr. James’s statements and his testimony could not enhance Mr. James’s credibility.
[45] Finally, Crown counsel submits that the trial judge’s mid-trial instruction to the jury was sufficient. Once again, I must disagree. The instruction spoke in terms of “narrative” and hearsay. The instruction said nothing about the prohibition against using the prior consistent statements to enhance the credibility of Mr. James. That was the real danger in this case.
[46] There are several factors in this case which compel the conclusion that a limiting instruction was necessary as a matter of law. The prior consistent statements figured prominently in the Crown’s case. The police officer gave a detailed account of Mr. James’s statements to the police. That evidence repeated important details in Mr. James’s statements. The detail in the statements and the prominence afforded to the statements in the Crown’s case, combined with the central importance of Mr. James’s credibility in the case, made a proper limiting instruction a legal necessity. Absent that instruction, the jury could well have taken Mr. James’s repetition of his story as a strong indicator of the reliability of that story. Mr. James’s credibility was crucial. Non-direction on evidence which played a prominent part in the Crown’s case, and which was central to Mr. James’s credibility, must be treated as a mis-direction constituting an error in law.
[48] The importance of Mr. James’s credibility to the Crown’s case, the many references in the evidence to detailed prior consistent statements, and the realistic possibility that reasonable jurors could misuse those prior consistent statements, absent a proper limiting instruction, compel me to conclude that the error was far from harmless. The Crown has not shown that there is no reasonable possibility that the verdict would not have been different had the jury been properly instructed on the use of prior consistent statements.
CONCLUSION
[49] I would allow the appeal and order a new trial.
R v Sohal, 2023 BCCA 256
[June 23, 2023] Sentencing: Dangerous Offender Label and the Requirement of “a high likelihood of harmful recidivism” [Reasons by Marchand J.A. with Saunders and Fitch JJ.A. concurring]
AUTHOR’S NOTE: Although the direct consequence of a “dangerous offender” label under the Criminal Code is no longer certain to be indeterminate detention, the threshold for such a finding remains higher than a balance of probabilities. That standard is simply improper for something that can aggravate sentencing in a criminal proceeding, even for a future prediction test. The BC Court of Appeal affirms that all case law which suggests that a dangerousness label can be applied on anything lower than a high likelihood of harmful recidivism is not longer good law.
Introduction
[1] On September 27, 2018, Sandeep Sohal was convicted of sexual assault with a weapon, unlawful confinement and uttering threats. At the time, Mr. Sohal had two previous convictions for sexual assault with a weapon and one previous conviction for attempted theft. The attempted theft involved Mr. Sohal accosting two young women with a weapon and had sexual overtones. Mr. Sohal’s previous offences were committed when he was 17 years old, approximately eight years before he committed the offences at issue on this appeal.
[2] Given Mr. Sohal’s criminal history, the Crown applied to have Mr. Sohal designated as a dangerous offender under one or both of ss. 753(1)(a)(i) and 753(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46 [“Code”]. The Crown sought to have him sentenced to a determinate jail sentence of six to eight years (less time served) to be followed by a ten-year long-term supervision order (“LTSO”). Mr. Sohal opposed the designation and sought a determinate jail sentence of two years less a day.
[3] Following a seven-day hearing, on December 16, 2019, the trial judge designated Mr. Sohal as a dangerous offender. She then sentenced him to concurrent six-year custodial sentences on each of the three offences to be followed by a ten-year LTSO. She also made ancillary Sex Offender Information Registration Act [“SOIRA”], DNA and firearms prohibition orders. The judge’s reasons for designation and sentence are indexed at 2019 BCSC 2271.
[5] With respect to designation, Mr. Sohal submits the judge erred by: (1) adopting too low a standard of proof for assessing future risk;
[10] As will be seen, in my view, the judge erred by adopting and applying too low a standard of proof for assessing the future risk posed by Mr. Sohal. The leading authorities are clear that to designate Mr. Sohal as a dangerous offender, the Crown had to prove, among other things, that Mr. Sohal’s pattern of conduct was “very likely” to continue or, stated slightly differently, that there was a “high likelihood” of harmful recidivism: R. v. Lyons, 1987 CanLII 25, [1987] 2 S.C.R. 309 at 338; R. v. Boutilier, 2017 SCC 64 at paras. 26–27.
[11] Respectfully, the judge did not set her mind to whether the evidence satisfied the correct standard regarding Mr. Sohal’s future risk. Rather, she considered only whether Mr. Sohal was “likely” to reoffend with sexual violence and concluded that he was. She specifically defined “likely” to mean “more probably than not”, a standard that was decidedly below the standard established by the Supreme Court of Canada.
[12] Further, in my view, the factual findings of the judge do not inexorably lead to the conclusion that Mr. Sohal meets the criteria to be designated as a dangerous offender. As a result, I would set aside his designation and the sentence imposed by the judge on the predicate offence and I would order a new hearing.
The positions of the parties
[100] Mr. Sohal submits that the judge erred by adopting too low a standard of proof for assessing his future risk. He says that, in Boutilier, the Supreme Court of Canada “hammered home the high degree of likelihood of future harm that the Crown must prove in order to justify designation.” He notes that in Boutilier, the Court: (1) held that to designate an offender as “dangerous” under s. 753(1) the sentencing judge must be satisfied that there is a “high likelihood of harmful recidivism”; (2) emphasized a passage from Lyons that the pattern of conduct must be “very likely to continue”; and (3) held that only offenders “who pose a tremendous future risk” are to be designated as dangerous: Boutilier at paras. 25–27, 46 (emphasis added).
[101] With respect to s. 753(1)(a)(i), Mr. Sohal submits that the judge expressly adopted too low a standard of proof at para. 145 of her reasons when she accepted a submission made by the trial Crown (not Crown counsel on appeal) that “[t]he Crown need only to establish beyond a reasonable doubt that there is a “reasonable possibility”—not a certainty or probability—that the offender will cause death, injury, or severe psychological damage by failing to restrain his behaviour in the future” (emphasis added).
[102] With respect to s. 753(1)(b), Mr. Sohal submits that the judge adopted too low a standard of proof at para. 148 of her reasons by finding that the Crown only needed to establish a “likelihood” that Mr. Sohal will cause injury, pain or other evil in the future by failing to control his sexual impulses, where she defined “likelihood” to mean “more probably than not” (emphasis added).
[103] The Crown acknowledges that the judge misstated the applicable standard of proof for assessing future risk under s. 753(1)(a)(i). That standard is clearly not a “reasonable possibility”….
…The Crown therefore submits that the issue is whether the judge erred in defining “likelihood” as meaning “more probably than not.”
[104] The Crown notes that the judge relied on R. v. Allan, 2009 BCSC 1245 at para. 194 in support of her statement at para. 148 that “‘likelihood’ means more than simply a possibility, it means more probably than not.”
The same standard of proof applies to ss. 753(1)(a)(i) and 753(1)(b)
[108] Although Boutilier was decided in the context of an application under
s. 753(1)(a) not s. 753(1)(b), I agree with the positions implicitly taken by the parties that the same standard of proof regarding future risk applies under the two subsections at issue on this appeal.
The standard is higher than “more probably than not”
[110] In Lyons, the Supreme Court of Canada rejected arguments that the predecessor dangerous offender regime of the Code contravened various rights guaranteed by the Charter. In addressing whether the regime constituted cruel and unusual punishment contrary to s. 12 of the Charter, Justice La Forest for the majority examined the “substantive ways” in which the legislation accommodated the “conflicting interests” of protecting society from dangerous criminals and not subjecting an offender to a grossly disproportionate punishment:
43. First, the legislation applies only to persons convicted of a “serious personal injury offence” as defined in s. 687. These offences all relate to conduct tending to cause severe physical danger or severe psychological injury to other persons. Significantly, the maximum penalty for all these offences must be at least ten years’ imprisonment. Secondly, it must be established to the satisfaction of the court that the offence for which the person has been convicted is not an isolated occurrence, but part of a pattern of behaviour which has involved violence, aggressive or brutal conduct, or a failure to control sexual impulses. Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which the section seeks to protect, namely, conduct endangering the life, safety or physical well‐being of others or, in the case of sexual offences, conduct causing injury, pain or other evil to other persons. Also explicit in one form or another in each subparagraph of s. 687 is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable. Finally, the court has the discretion not to designate the offender as dangerous or to impose an indeterminate sentence, even in circumstances where all of these criteria are met.
[Emphasis added.]
[111] In Boutilier, the Court upheld the constitutionality of the current dangerous offender regime. Justice Côté for the majority relied heavily on Lyons. She held that the prospective risk assessment in the current regime had not changed: at para. 24. She subsequently articulated the standard of proof regarding future risk to be “high likelihood” to ensure that only offenders who pose a “tremendous future risk” are designated as dangerous and face indeterminate detention:
[26] In Lyons, Justice La Forest read the objective element of the designation — the requirement that the predicate offence be a “serious personal injury offence” — together with the subjective element — the “threat” assessment — and concluded that four criteria were “explicit” from the language of s. 753(1): (1) the offender has been convicted of, and has to be sentenced for, a “serious personal injury offence”; (2) this predicate offence is part of a broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable (p. 338). The last three criteria are part of the assessment of the “threat” posed by the offender. The last two of these are future-oriented, and Justice La Forest explained them as follows:
Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which the section seeks to protect, namely, conduct endangering the life, safety or physical well-being of others or, in the case of sexual offences, conduct causing injury, pain or other evil to other persons. Also explicit in one form or another in each subparagraph of s. [688, now 753] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable. [Emphasis added by Côté J.; p. 338.]
[27] The language of s. 753(1), which led Justice La Forest to develop the four criteria outlined above, has never been amended since its enactment in 1977. Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. I understand “intractable” conduct as meaning behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness.
…
[46] In sum, a finding of dangerousness has always required that the Crown demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct. A prospective assessment of dangerousness ensures that only offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminate detention. This necessarily involves the consideration of future treatment prospects. Had the prospective aspects of the dangerousness criteria been removed by the 2008 amendments, the constitutionality of the provision might have required a deeper analysis. But that is not the case. The sentencing judge erred in concluding otherwise. Accordingly, this Court need not revisit its decision in Lyons as to the constitutionality of s. 753(1).
[Underlining in original. Italics added.]
[112] I pause to note that I do not read Boutilier as suggesting that a “tremendous future risk” means anything other than a high likelihood of harmful recidivism.
[114] This Court is, of course, bound to apply the standard of proof set out in Lyons and endorsed in Boutilier. Insofar as the Neve formulation of “[a]t the very least, … more probable than not” includes “likely” (as distinct from “very likely” or “high likelihood”), it has been overtaken and should no longer be used.
The designation must be set aside
[115] In this case, the judge initially identified the correct standard of proof, namely “high likelihood”, for assessing Mr. Sohal’s future risk at para. 133 of her reasons. However, she subsequently identified too low a standard of proof, namely “reasonable possibility” at para. 145 and “more probably than not” at para. 148. Beyond identifying an erroneously low standard of proof, reading the judge’s reasons generously and as a whole, in my view, she also applied an erroneously low standard of proof.
[120] To be sure, Mr. Sohal’s case has many troubling features:
- Mr. Sohal has a history of perpetrating predatory, sexually violative and harmful sexual violence on young women;
- His offending has included offending against strangers, which makes detection and prevention more difficult;
- His offending has cut across developmental stages;
- His offending has continued in a very brazen fashion in his family home and despite his previous sexual offender treatment; and
- Given Mr. Sohal’s decision not to participate in the court-ordered assessment or testify during the sentencing hearing, the judge found there was no persuasive evidence regarding his treatability.
[121] Against this backdrop, the judge dealt with the “critical question” of “the likelihood that Mr. Sohal will fail to restrain his behaviour or control his sexual impulses in the future” at paras. 173–176:
[175] I accept Dr. Tomita’s conclusion that Mr. Sohal poses a chronic risk and is likely to reoffend with sexual violence. I accept that this risk is difficult to eradicate or reduce. I also find that, should Mr. Sohal repeat his conduct in the future, his victims would suffer psychological harm and/or injury.
[176] Ultimately, I am satisfied beyond a reasonable doubt that Mr. Sohal’s conduct is deep-seated and intractable, and that he should be designated a dangerous offender under either s. 753(1)(a)(i) or s. 753(1)(b). Past sex offender treatment did not prevent Mr. Sohal from reoffending. While evidence of future treatability remains uncertain due to Mr. Sohal’s nonparticipation in the assessment, there is no persuasive evidence that his future treatment prospects are any better.
[Emphasis added.]
[122] As can be seen, the judge expressly accepted Dr. Tomita’s opinion that Mr. Sohal poses a “chronic risk”. She also found that his risk “is difficult to eradicate or reduce” and that his conduct “is deep-seated and intractable.” However, a low or moderate risk of harmful recidivism can also be chronic, difficult to eradicate, deep- seated and intractable.
[123] More importantly, on the critical question of future risk, the judge based her designation explicitly on Dr. Tomita’s conclusion that Mr. Sohal is “likely” to reoffend with sexual violence. Dr. Tomita, who is a forensic psychiatrist and not a lawyer, appears to have used “likely” in its ordinary sense. It is therefore evident that the judge did not set her mind to or answer the necessary question of whether Mr. Sohal was “very” or “highly” likely to reoffend with sexual violence.
[124] In my view, on the judge’s factual findings, the answer to the correct question admits of more than one reasonable possibility. In other words, the judge could have found beyond a reasonable doubt that Mr. Sohal posed a high likelihood of harmful recidivism or that there was a reasonable doubt about whether that was the case. Accordingly, I would allow the appeal and set aside Mr. Sohal’s designation as a dangerous offender.
Conclusion and Disposition
[140] For all of these reasons, I would: (1) allow Mr. Sohal’s appeal; (2) set aside his designation as a dangerous offender; (3) set aside his sentence on the predicate offence, including the ancillary orders; and (4) order a new hearing of the Crown’s application to designate and sentence Mr. Sohal as a dangerous offender.
Witness Preparation, Presentation, and Assessment
By Justice Cameron Gunn, Mona Duckett, & Patrick McGuinty
