The Defence Toolkit – June 19, 2021

This week’s top three summaries: R v Daou, 2021 ONCA 380: cop #opinion of guilt, R v Bugle, 2021 ABPC 45: s.8 #search for #vehicle docs, and R v Carter, 2021 ABQB 430: #particulars motion.

R v Daou, 2021 ONCA 380

[June 3, 2021] Opinion Evidence – Police Officers Opinions About Guilt [Reasons by Gary Trotter J.A. with K. Feldman and P. Lauwers JJ.A. concurring]

AUTHOR’S NOTE: Police officers often want to tell you about their process of thinking as they get from hunch to suspicion to developing a suspect. However, a jury or judge do not need to know their personal opinions in a trial proper. Their impressions of guilt are completely irrelevant to the consideration of a trier of fact and can have a significant prejudicial effect. The trier of fact must make their own determinations from the evidence. With a few exception lay opinion evidence is inadmissible in a criminal trial and no opinions as to the ultimate issue are permissible. Herein, Justice Trotter outlines the law and limitations that must be put on officers expressing their personal opinions in a matter. 

Introduction

[1] The appellant was convicted of first degree murder for killing Jennifer Stewart. He was sentenced to life imprisonment with no parole for 25 years.

[2] The case against the appellant hinged on statements he gave to the police while he was incarcerated on unrelated charges. The appellant said he killed Ms. Stewart so he would become “a billionaire rap superstar”. He gave his confessions as a means of getting out of custodial segregation and while apparently suffering from schizophrenia.

[3] At trial the appellant claimed that his confessions were false. He also professed to be not criminally responsible on account of mental disorder (“NCRMD”), in the event the jury accepted he killed Ms. Stewart.

[4] The lead investigator in the case, Detective John Monette, testified that he believed one of the confessions to be true, and provided detailed reasons for reaching this conclusion. In his final instructions to the jury, the trial judge told the jury that, before they could find the appellant guilty, they had to be satisfied beyond a reasonable doubt that the confession was true.

[5] The officer’s opinion that the confession was true was inadmissible. It amounted to an opinion that the appellant was guilty. The jury should have been cautioned to completely disregard this dangerous testimony. But there was no caution. Instead, the significance of the confession was underscored in the trial judge’s final instructions, and the officer’s opinion repeated.

[6] On appeal, the Crown acknowledges that the trial judge erred by failing to provide a limiting instruction, but asks this court to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code.

[7] I would decline to apply the proviso. Without a proper limiting instruction, the detailed opinion of this senior police officer seriously risked dominating the jury’s consideration of the veracity of the confession and, ultimately, the appellant’s guilt…

Factual Overview

[8] Jennifer Stewart was brutally murdered in Ottawa between the evening of August 19, 2010, and the early morning hours of August 20, 2010. She was attacked with a weapon, possibly an axe. She was left to die, lying face down in a parking lot behind an apartment building. Ms. Stewart sustained five “chop” injuries to her head, three of which penetrated her skull. She had similar injuries to her right shoulder, right shin, legs, and perineal area. She suffered defensive wounds to both hands. Her left hand was almost severed from her arm.

[9] There were no eyewitnesses to the murder, nor any forensic trace evidence that linked the appellant to the murder. There were no obvious suspects. Det. Monette testified that, between 2008 and 2011, a number of young women involved in the sex trade were killed in Ottawa. Ms. Stewart was among them. As discussed below, the appellant also purported to confess to killing another one of these women, but the police quickly dismissed this confession as false.

[10] The Ottawa Police Service shared some information about their investigation through media releases. Some details were withheld as “hold back information”, being information the police do not release to the public to help the police gauge the value of information they receive through public tips. If the police receive a tip with information that contains any “hold back information”, the police may look at that tip with particular interest. In this case, the hold back information included: (1) the type of weapon used to kill Ms. Stewart; (2) the nature and location of Ms. Stewart’s injuries; (3) the exact location of the attack; and (4) details about Ms. Stewart’s clothing. The trial Crown alleged that, because the appellant disclosed some of these details in his confessions, he was the killer.

[11] The defence relied on inaccuracies in the appellant’s accounts, including his initial claim that he killed Ms. Stewart with a knife, not an axe. The defence also pointed to a number of timely newspaper articles that contained details about Ms. Stewart’s murder, including: a rough description of where it occurred (i.e., in the gravel parking lot of a low-rise building a few houses away from where the appellant lived); that emergency crews had turned over Ms. Stewart’s body, which was found lying face down; and that Ms. Stewart had stab wounds to her head (including the back of her head), legs or thighs, and deep wounds to both wrists. As discussed below, in the year prior to his confession, the appellant showed interest in media accounts of Ms. Stewart’s murder.

[12] Over a year after the murder, in October of 2011, with no real leads, the police offered a $50,000 reward for information leading to the arrest and conviction of Ms. Stewart’s killer. Nobody stepped forward to claim the reward. The investigation went stale until February 25, 2013, when the appellant confessed to the murder. The appellant mentioned the reward in one of his police interviews and asked whether he could get someone to “rat him out” and collect the reward money.

The Appellant’s Statements

[15] At the time he spoke to the police in February 2013, the appellant was displaying symptoms of schizophrenia. He was segregated and on suicide watch. In the weeks leading up to his statements, the appellant saw clinical psychologist, Dr. Ian Shields, at the jail. Dr. Shields met briefly with the appellant on February 15, 2013 because jail staff were concerned about his mental health. The appellant exhibited inappropriate affect and reported biting himself.

[16] At a longer meeting on February 20, 2013, Dr. Shields thought that the appellant might be experiencing auditory hallucinations. The appellant made illogical and strange comments and claimed that his finger was possessed by a demon. He suggested that cutting off his finger might solve all of his problems. The appellant’s strange behaviour prompted Dr. Shields to ask whether he had ever considered eating his cellmate. The appellant just laughed at the question in a way Dr. Shields thought was peculiar. When he was asked if he had ever tasted human flesh, the appellant pointed to a wound on his right arm, which looked like a bite mark. Dr. Shields saw the appellant on February 28, 2013, after his police confessions, and he presented in the same manner. In March, the appellant appeared to be much “calmer”.

The Jail Statement

[18] On February 25, 2013, at about 9:00 a.m., the appellant told a correctional officer that he would like to confess to a murder. The police were contacted. Det. Monette and his partner, Det. Kevin Wilcox, went to the jail that same day to meet with the appellant.

[19] The detectives met with the appellant in the visitors’ area of the jail and took an audio-recorded statement that lasted roughly 30 minutes. The appellant spent the first few minutes of the interview seeking assurance he could be let out of segregation and transferred to a federal penitentiary that evening if he confessed. He then jumped into his confession, saying: “You remember 20th on Alice Street. … 2010. Jennifer. … Yeah, I did it. … I did the crime.”

[20] The appellant claimed he met Ms. Stewart on Montford Street just before midnight on the night of the murder. She was wearing a black raincoat and pants. He knew Ms. Stewart from the neighbourhood and had sold her drugs on occasion.

[21] He explained that he lured Ms. Stewart to a parking lot at Alice Street and St. Ambrose Avenue under the pretense of selling her drugs. He said she was going to pay cash for the drugs and confirmed there was no plan for Ms. Stewart to give the appellant any “sexual favours”.

[22] When he and Ms. Stewart arrived at the parking lot, he told her to wait there for him while he went to get the drugs. The appellant was living one street over at the time. He then circled back and snuck up on Ms. Stewart, first attacking the “top part”, indicating her upper torso, and then her head. 1 He estimated he hit her on the head between four to seven times. He said Ms. Stewart fell down “pretty quick” and that she did not try to defend herself at all. When Det. Monette asked if he hit her anywhere else – “Arms? Legs? Back? Whatever?” – the appellant said, “Maybe like this part, the top part”. He said he left Ms. Stewart lying face down on the ground, with her head pointing toward Alice Street.

[23] Initially, he said he “cut” Ms. Stewart with a military knife. When Det. Monette asked if the appellant was sure he used a knife, the appellant responded with: “That’s what the news says”. However, the appellant then said he used an axe he bought from Canadian Tire. The axe had a silver metal blade and a wooden handle that was roughly two-and-a-half feet long. The appellant said he bought the axe from the Canadian Tire on Coventry Road a couple of weeks before he attacked Ms. Stewart, after he found out the Crown was going to seek a six-month sentence for unrelated charges against him. After the murder, he kept the axe in his house until October 2012, when he threw it in the garbage.

[24] When asked about his motivation for killing Ms. Stewart, the appellant said: “I don’t know. I was at work and I was listening to the radio and I had those like weird ideas coming in my mind, like that day was like really different.” He explained he had been thinking of killing someone ever since he found out the Crown would be seeking the six-month sentence. Although he knew Ms. Stewart from the neighbourhood, he had not targeted her or anyone else. He was just “looking around” that night and Ms. Stewart was “the one that like came up … as the best like possible choice.” When he saw her, he “knew [she] was the one somehow.”

[25] After speaking with the appellant, the detectives decided to pursue a further interview in a more appropriate setting, away from the noise and clamour of the jail, and where it could be video recorded. They made arrangements to transport the appellant to the police station the following day.

The Confessions

[26] On February 26, 2013, Det. Monette conducted a formal interview at the police station. This interview lasted roughly four-and-a-half hours, and anytime Det. Monette would leave the room, the appellant would rap to himself. The lyrics often centred around violent themes.

[27] At the outset of the interview, the appellant reiterated that he purchased the axe after he heard the Crown was seeking a six-month sentence. But this was not the first time he turned his mind to murder: he already had the idea that he would become a “really good rapper” if he killed someone. The potential six-month sentence was not his sole motivator, but merely added to his desire to kill someone to become “the perfect rapper.”

[28] In addition to the axe, the appellant purchased the following gear from Canadian Tire: a pair of clear, plastic goggles; a pack of masks, which he first described as “painter’s” masks but later as “surgical” masks; and a pair of beige and green canvas gardening gloves (though he forgot to use these on the night of the murder). The appellant was consistent that he bought these items in cash from the Canadian Tire on Coventry Road, but was unclear on when exactly he did so. Although he said he was sure it was sometime in August 2010, he guessed it was “a few days or weeks” or eight to nine days before the murder. He did not share his plan with anyone and kept the axe and gear in his bedroom until he used them to kill Ms. Stewart.

[29] The appellant recounted his actions and thoughts throughout the day of the murder. He did not begin his day planning to kill anyone. However, while he was listening to the radio at work, “weird ideas” came into his head that that was the day to kill someone and do what he had to do to be a “millionaire rapper”. The turning point came while he was on his lunch break: he saw a McDonald’s delivery truck go by with the phrase “Good Start, Bon Repas” along the side of the vehicle. He took those words as a sign and knew at that moment that was the day to kill someone.

[30] The appellant finished work around 4:00 p.m. and took the bus home. He arrived home at roughly 5:00 p.m. and spent the next four-and-a-half to five hours coming and going from his house, smoking marijuana, biking around the neighbourhood, listening to music, and writing rap lyrics about killing and “street gangster stuff”. Early in the evening, he purchased a 26-ounce bottle of Alizé Liquor, which he drank throughout the night. He told Det. Monette the alcohol made him more willing to commit murder, and that he decided earlier in the day to drink beforehand, explaining: “I seen this big pitcher of beer … like right in the morning and they never do that. And that just like set … set off the idea to drink to accomplish it, right.”

[31] It was not until approximately 9:30 or 10:00 p.m. that the appellant left his house and started to “really look” around his neighbourhood for a victim. He was not focused on any particular person or gender.

[32] Shortly after 10:00 p.m., the appellant saw Ms. Stewart walking on Marier Avenue toward Montreal Road. She stood out to him because she was alone, and he thought she was the right match. He said she was wearing a black coat and pants that could have been black pants or jeans. She was not carrying a purse, backpack, or any other kind of personal bag.

[33] The appellant approached Ms. Stewart from behind. In contrast to his previous statement, he told Det. Monette that he offered Ms. Stewart drugs in exchange for oral sex, not money. Ms. Stewart agreed to the transaction, and they headed off toward the apartment building at 120 Alice Street. They did not speak much along the way – she walked a few feet ahead of him and he was listening to the radio on an MP3 player. The appellant once again believed the radio was giving him signs. He said to Det. Monette: “[E]verything that the radio was saying was like pointing me in the direction of killing that day. And the more I listened, the more I like … I understood it was like time to do it.”

[34] … When he entered the parking lot, Ms. Stewart was gone.

[36] The appellant called Ms. Stewart over to him, saying she came over without any “doubts or suspicions”….

[37] The appellant described running at Ms. Stewart from behind, surprising her as he aimed the axe at her chest and head. He hit the top part of her body and head approximately three to four times before Ms. Stewart fell to the ground. Once on the ground, Ms. Stewart rolled onto her stomach so she was face down, and the appellant delivered another five to six blows to her head. He said she kept her arms lying by her side, and never resisted or tried to defend herself.

[38] After his final hit, the appellant fled the scene to return home. When he left, Ms. Stewart was lying face down with her head pointing toward Alice Street. The appellant took off his gear, wrapped it in his hoodie, and hopped the series of fences between 120 Alice and his house. He arrived home just before midnight and entered through the side door. He wrapped the axe in his father’s old red winter coat and put the gear and his clothes in a garbage bag. He threw out the clothing and gear the next day, but kept the axe, still wrapped in the coat, in a suitcase in his bedroom closet. Contrary to the appellant’s statement the day before, he now said it was his father who threw the axe in the garbage in October 2012, after he found it while preparing to move out of the house. The appellant said he heard around 7:00 a.m. the next morning that someone found Ms. Stewart’s body.

[39] At the end of his statement, Det. Monette gave the appellant a photographic printout of axe, hatchet, and bowsaw inventory at Canadian Tire. The appellant circled the axe that matched the one he said he used to kill Ms. Stewart.

[40] The appellant later joined Det. Wilcox and two other detectives on a ridealong to the scene of Ms. Stewart’s murder. He directed the detectives through the route he took the evening of August 19, and pointed out the key landmarks and locations he described during the confession.

[41] At the end of this interview, the appellant also confessed to two other crimes, an attempted homicide and a break and enter.

[42] First, he told Det. Monette that on May 4, 2010, he tried to kill another sex worker, named “Harmony”, by hitting her over the head with a rock and kicking her in the head and face…

[43] Second, the appellant described a break and enter he committed in 2012. He broke into a woman’s house on Sweetland Avenue in Ottawa’s Sandy Hill neighbourhood….

[44] The trial Crown called both women as witnesses and both confirmed the appellant’s confessions to these unrelated crimes.

Other Statements

[47] First, the appellant told Ms. Gordon that he killed a man who owed him money. She did not ask any follow up questions because she thought he was lying. Within two months of this disclosure, they were at an internet café, where the appellant was looking at an article about Ms. Stewart’s death. The appellant told her that this was the person he had killed, not a man. At the time, the appellant had a smile on his face and seemed quite interested in the article.

[48] The issue came up again. When the two were sitting in a room together, the appellant was looking at articles about Ms. Stewart online. Ms. Gordon asked the appellant whether he really killed her. With a smile on his face, the appellant answered “yes”. The appellant said that he bought gloves and a mask and that he attacked Ms. Stewart with an axe. He did this because he wanted to be a famous rapper. The appellant said that he saw a sign on a McDonald’s truck that made him decide that this was the day that it had to be done.

[50] When the appellant was in the ORDC on March 6, 2013, he told institutional staff that he wanted to confess to killing another woman, Leanne Lawson. The police attended to speak to the appellant. However, during the interview, the police concluded that it was a false confession and left. Another person had already been charged with this offence.

[51] The appellant made another statement on the eve of his trial. He was taken to court on November 4, 2015 for an administrative appearance. The appellant was agitated about being transported with other prisoners because he was usually transported alone. He was concerned about being beaten up that morning. He said to the special constables who were assigned to transport him: “I killed a hooker”.

[52] Other than the appellant’s statements, there was little else that confirmed his police confession to killing Ms. Stewart. He told Ms. Gordon that he used an axe and wore gloves and a mask. The appellant told the police that he purchased these items, and a pair of goggles, at a specific Canadian Tire store. The police investigated this store and discovered that a transaction had taken placed on June 25, 2010 in which an unidentified person paid cash for this group of items, roughly two months before Ms. Stewart’s murder.

Opinion Evidence

[53] As already noted, Det. Monette was the lead investigator. At great length, the jury heard about his impressive credentials. At the time of the trial in late 2015, he had been a police officer for 29 years and had spent the last 13 months on secondment with the RCMP, acting as an investigator in the war crimes and extraterritorial response unit. For 16 years before that, he was with the major crime unit, save for one year he spent seconded to the RCMP international police operations branch, working as a peacekeeper in South Sudan. He spoke extensively about his training and experience, often referring to other cases that he investigated.

[55] I hasten to add that Det. Monette was not solely responsible for creating the special aura that infused his testimony. The evidence of his extensive background, as well as his opinion about the reliability of the appellant’s February 26 confession, was adduced through careful questioning by the trial Crown, with no objection from trial counsel.

[57] The problematic part of the testimony related to the appellant’s first statement at the police station on February 26. Det. Monette thought that the appellant said contradictory things about the moments just before he attacked Ms. Stewart. Det. Monette admonished the appellant, saying, “[T]hink good and hard about what it is that you’re telling me”, shortly followed by, “Okay. ‘Cause right now I’m not convinced that you’re telling me the truth.” The following exchange then occurred between the trial Crown and Det. Monette:

Q.      Can I ask you why you said that to Mr. Daou at that point in time in the interview?

A.      I’ve been a police officer for 29 years. I’ve been in homicide for roughly 18. I speak to a lot of people in interviews and interrogations on a fairly regular basis. I’ve had people confess to me for things that they haven’t done. I wanted to ensure that Mr. Daou was responsible for – I wanted to make sure that Mr. Daou was telling me the truth in regard to what he was confessing to. I don’t want to in any way, shape or form put an innocent man in a situation he doesn’t belong to be in. Simply, I was interested in discerning that he was telling me the truth.

Q.      Okay. I’m going to ask you some more about – some follow-up about this next question, but simply put, was there a point in the interview with Mr. Daou, at any point, where you were convinced he was telling the truth?

A.      Certainly not at this point.

Q.      Okay.

A.      I had questions at this point still, but later on, yes, I did.

Q.      Okay.

A.      There were several points that – there are a couple of points that led me to the belief that he was responsible for Ms. Stewart’s death. [Emphasis added.]

[58] I pause to note that in the opening frame of this exchange, Det. Monette took the opportunity to assert his credentials once again, and to portray himself as a cautious investigator who desperately wanted to avoid implicating an innocent man. This was the foundation for his ultimate assertion that the appellant’s confessions were true, and he was in fact the killer.

[59] The trial Crown returned to the issue in the following lengthy exchange in which Det. Monette explained his opinion in some detail:

Q.      Okay. One of the things that I covered off earlier with you was this – the comment that you made to Mr. Daou at page 43 of the transcript with respect to him telling the truth?

A.      Yes.

Q.      And you had indicated that at a couple of points – there were a couple of points that led you to believe that he was responsible for Jennifer Stewart’s death…

A.      That’s right.

Q.      …in the interview. Are you able to identify those points in the interview – first of all, let me ask you, are they in this particular interview that we’ve just seen?

A.      Yes.

…

A.      When Mr. Daou had drawn the first diagram, that being of the back of the residence and the location where he attacked Ms. Stewart, he drew her in a location that I believe to be very close to where the blood was found on the parging of the wall. That was the first instance.

Q.      Okay. So you’re – just for the completeness of the record, you’re holding up the first diagram that we went through…. Was that the first one or the second one? I think that was the first one.

A.      This is the first one.

…

Q.      Were there other points in this particular interview where you came to the conclusion that he was responsible for the death of Jennifer Stewart?

A.      I did. Again, on the next diagram, the diagram of the, of the person that I asked him to draw, it was clear that Ms. Stewart had suffered trauma to the torso and the area of the shoulders. That was significant to me. And then secondly and more importantly, with respect to the injuries inflicted to the back of her head and also the number of injuries inflicted to the back of her head, I believe, would be significant to only someone who would have been there at the time and party to it. … [Emphasis Added]

[62] As the above excerpts reveal, Det. Monette was given numerous opportunities to express his opinion on the truthfulness of the confession and how he formed that belief, which was based on his training, experience, and intuition.

The Trial Judge’s Instructions to the Jury

[64] When explaining the elements that the trial Crown must prove on a charge of first degree murder, the trial judge posed the first question: “Did Adrian Daou cause Jennifer Stewart’s unlawful death?” He instructed the jury as follows:

The accused person provided a confession to the Ottawa Regional Police Services whereby he claimed to be responsible for Jennifer Stewart’s unlawful death. There is no direct or forensic evidence that links the accused to Jennifer Stewart’s death. Your focus should be on the reliability of the accused’s confession.

…

To conclude that Adrian Daou is the person responsible for Jennifer Stewart’s death you must be satisfied beyond a reasonable doubt that the Crown has established that the confession is reliable and that those parts of the confession where Adrian Daou describes his unlawful killing of Jennifer Stewart are in fact true. [Emphasis added.]

[65] The trial judge provided a thorough review of the evidence. He reminded the jury that Det. Monette was the lead investigator on the case and that he had 29 years of experience as a police officer. In the context of describing the investigative steps Det. Monette took, the trial judge focused again on the February 26 confession:

The Detective was asked what convinced him that this was a real confession. He pointed out the following: the diagram drawn by the accused that showed where the body was situated in relation to a small amount of blood on the parts of the building; the diagram showing the area of the injuries and the number of blows to the back of the head; and the identification of an axe as the weapon. He believed that this was information that could only have been known by someone who was there. [Emphasis added.]

[66] No objection was taken to any of these instructions.

Analysis – Admissibility

[67] In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, Cromwell J. said, at para. 14: “To the modern general rule that all relevant evidence is admissible there are many qualifications. One of them relates to opinion evidence, which is the subject of a complicated exclusionary rule.” That case concerned the parameters of expert opinion evidence, whereas this case is about the non-expert opinion evidence given by a police officer.

[68] Det. Monette was not qualified as an expert, nor could he have been. He had no special power, training, or ability to determine if someone is telling the truth. Moreover, had he been offered as an expert, his impartiality and lack of independence would surely have been fatal to being so qualified: see White Burgess, at paras. 46-53. Det. Monette’s opinion about the truthfulness of the appellant’s confession was inadmissible. It was for the jury to answer this question, without undue influence from a high-profile witness who had no business opining on the issue.

[69] Generally speaking, only properly qualified experts may provide opinion evidence, and only about matters of fact, not about legal issues. In Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, the Supreme Court of Canada considered whether lay persons, in that case a police officer, could provide an opinion about whether a person’s ability to drive was impaired by the consumption of alcohol.

[70] In a searching analysis, Dickson J. (as he then was) concluded that, as a general rule, lay persons cannot give opinion evidence, but noted that the law recognized a number of exceptions, such as the identification of handwriting, a person’s apparent age, the emotional state of a person, and others: at p. 835. However, he drew a bright line between opining on matters of fact on the one hand, and legal standards on the other. Dickson J. said, at p. 839: “A non-expert witness cannot, of course, give opinion evidence on a legal issue as, for example, whether or not a person was negligent.” Similarly, an opinion that an accused person is guilty would be subject to the same prohibition.

[71] The Supreme Court addressed this issue in R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716. In that case, the victim, Jack Kong, had been stabbed and robbed. He said his former friend Duc Van did it. At trial, Mr. Van claimed that someone else had attacked Mr. Kong. Mr. Van was convicted at trial. On appeal, this court set aside the convictions because one of the Crown’s key witnesses, a police officer, offered his opinion on Mr. Van’s guilt, and left the suggestion that his opinion was based partly on information that was not before the jury. He was also permitted to give evidence that fell into the category of investigative hearsay. Winkler C.J.O., in dissent on this point, would have dismissed the appeal by applying the curative proviso in s. 686(1)(b)(iii) of the Criminal Code: R. v. Van, 2008 ONCA 383, 92 O.R. (3d) 462, at para. 47, rev’d 2009 SCC 22, [2009] 1 S.C.R. 716.

[72] By a majority of 5:4, the Supreme Court overturned this court’s decision. All nine judges agreed that the disputed evidence was admissible, but only for a limited purpose. They also agreed that the jury should have been provided with a limiting instruction about the proper use of the investigative hearsay and police opinion evidence. The jury received no such instruction. The majority was prepared to apply the proviso; the minority was not.

[73] Although the main issue before the Supreme Court concerned the impact of the failure to provide a limiting instruction, both the majority and minority judgments are helpful on the question of the admissibility of the disputed evidence.

[74] For the majority, LeBel J. held, at para. 39, the evidence of the officer’s “statement of his opinion of the respondent’s guilt was unwarranted and clearly foreclosed by the jurisprudence, due to the danger of the jury uncritically accepting the witness’s opinion without drawing their own conclusions about the evidence (e.g. R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 49)” (emphasis added).

[75] LeBel J. qualified his comments about admissibility. He agreed with this court that investigative hearsay and police opinion evidence were admissible as they pertained to the defence assertion of an inadequate police investigation: at para. 33, citing R. v. Dhillon (2002), 2002 CanLII 41540 (ON CA), 166 C.C.C. (3d) 262 (Ont. C.A.); R. v. Mallory, 2007 ONCA 46, 220 O.A.C. 239. See also Lisa Dufraimont, “Annotation to R. v. Van” (2009), 65 C.R. (6th) 195.

[77] Cromwell J. elaborated on the dangers of the officer’s opinion evidence in the following paragraph, which contains obvious parallels to the circumstances of this case, at para. 82:

It is worth remembering that there are at least three dangers in receiving opinion evidence of the sort the officer gave in this case. First, it usurped the function of the jury by drawing critical inferences — a conclusion about the respondent’s guilt — from the facts known to the witness. Second, it obscured the factual basis for the conclusions reached. In this case, it was at best unclear and at worst a likely inference that the officer’s opinion was based on evidence other than that which had been admitted before the jury.^[[2]] Finally, there was a danger that, given the long experience and excellent career history of Det. Sgt. Nealon, the jury would attach undue weight to his opinion: see, for example, Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at pp. 839-40.

[78] All of the judges in Van agreed that, in the absence of an allegation of an inadequate investigation, the Crown is not permitted to adduce police opinion evidence (or investigative hearsay evidence). If such evidence is adduced, there must be a cautionary instruction that this type of evidence cannot be used to infer guilt.

[79] … For example, in R. v. Short, 2018 ONCA 1, 139 O.R. (3d) 1, the appellant was convicted of killing his wife. …

[81] Similarly, in R. v. Borel, 2021 ONCA 16, 153 O.R. (3d) 672, the accused was charged with attempted murder for setting the victim on fire. He gave a lengthy interview to the police in which he denied responsibility. At trial, the Crown adduced the evidence of the interviewing police officer. As in this case, the officer was very accomplished, with 27 years of experience, having worked in major crimes and homicide. As Nordheimer J.A. observed, at para. 30: “He made a point of telling the jury that he had interviewed approximately 500 accused persons during his 17 years as a criminal investigator.” Without objection, the officer gave evidence about the accused’s demeanour. He offered his opinion that his denials were “relatively weak” and that, based on his experience and training, “if someone’s in custody for an offence, a serious offence that they … did not commit, they would … likely be denying it strongly and asking why they’re in custody”.

[82] Nordheimer J.A. concluded that this opinion evidence was highly prejudicial. He relied on R. v. Quazi, 2014 ONCA 94, in which a police officer was permitted to give his opinion that the appellant’s demeanour during his police interview was indicative of guilt: at para. 36. In allowing the appeal in Quazi, this court held, at para. 7: “Such an opinion was irrelevant and should not have been permitted. Its intrusion into the trial record was highly prejudicial and contributed to the overall unfairness of the appellant’s trial.”

[83] In light of this line of authority, the opinion evidence offered by Det. Monette was inadmissible.

[86] I cannot accept either of the Crown’s submissions, both of which are assertions of admissibility. A denial of liability and the contention that a purported confession is not truthful cannot be equated with an attack on the integrity of the investigation, particularly in circumstances like this, where the appellant was responsible for instigating the investigation into his involvement in the killing of Ms. Stewart. The appellant’s contention that he did not kill Ms. Stewart (and, by obvious implication, that someone else did) was incapable of amounting to an assertion that the police investigation must have been inadequate because it failed to focus on the actual suspect. If a simple denial of responsibility is all that is required, the exception in Mallory and Dhillon would be virtually limitless, providing an unreasonably broad gateway for the introduction of police narrative and opinion evidence, with all its attendant risks.

[87] The prospect of an allegation of an inadequate police investigation arose in a different context at trial. The trial Crown sought to have Det. Monette testify about receiving a tip from a confidential informant that linked the appellant to the murder. The trial judge disallowed this line of questioning, which would have elicited investigative hearsay. In the colloquy with counsel that followed, the trial judge said: “The defence better not open the door that there was a shoddy investigation if nothing was done prior to confession. They do that, then they’re opening a door.” There was no subsequent attack on the adequacy of the police investigation, in that context or any other.

Lack of Proper Caution

[90] All members of the Supreme Court in Van agreed that, given that the narrative hearsay and opinion evidence was admissible to defend against a claim of an inadequate investigation, the jury had to be instructed on the limited use of this evidence – i.e., that it could not constitute evidence of guilt. In Van, the trial judge failed to give that caution, leading to the dispute about the application of the proviso.

[91] The failure to give a limiting instruction was far more serious in this case. There was no path to admissibility for Det. Monette’s opinion. It was improperly before the jury for any purpose. Instead of the need for an instruction about the limited use of the evidence, the jury should have been told that the officer’s opinion was entirely irrelevant to their deliberations and should be completely disregarded. The fact that this highly prejudicial evidence had no legitimate claim to admissibility significantly adds to the burden to be borne by the proviso.

Curative Proviso

[93] In applying s. 686(1)(b)(iii), the task is to determine whether there is a reasonable possibility that the verdict would have been different had the error not been made. If an appellate court concludes that there is a reasonable possibility that the outcome would have been different, the proviso cannot be applied: R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, at p. 617; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53. In Khan, at paras. 29-31, the Supreme Court confirmed that there are two scenarios where the curative proviso may be applied: (1) where the error is so harmless or trivial that it would make no difference to the outcome; or (2) even if the error is not minor, the evidence is so overwhelming that the trier of fact would inevitably convict.

[98] The errors in this case went directly to the core of the trial Crown’s case and the critical issue the jury needed to decide: Was the confession true? This was far from straightforward. When the appellant made his confession, he was exhibiting the symptoms of schizophrenia. His motivation for confessing appeared to be a practical one – when he first called for the police, the appellant was desperate to be removed from custodial segregation. His stated motivation for killing Ms. Stewart was less clear, if not bizarre – he said that he wanted to be a “billionaire rap superstar”. He also spoke of cashing in the reward that was offered.

[109] The trial judge did not receive the assistance he might have expected from trial counsel concerning the admissibility and subsequent management of this evidence at trial. Nonetheless, I agree with the appellant’s counsel that the lack of objection could not have been motivated by tactical considerations: R. v. McFarlane, 2020 ONCA 548, 393 C.C.C. (3d) 253, at para. 91. There was simply nothing to be gained by exposing the jury to the wide-ranging and damaging opinion evidence of Det. Monette. The result was an unfair trial. It cannot be said that the result would have been the same had these errors not been made.

CONCLUSION

[110] I would allow the appeal, set aside the conviction, and order a new trial.

R v Bugle, 2021 ABPC 145

[May 7, 2021] Charter s.8 – Search of Vehicle for Licence and Registration [A. A. Fradsham PCJ]

AUTHOR’S NOTE: Police have the power to demand licence, registration, and insurance documents at the roadside pursuant to the Traffic Safety Act in Alberta. However, does that power extend to searching the vehicle for these documents?  In this case the Judge Fradsham answers this question with an unequivocal NO. The result here was an exclusion of significant amounts of drugs and a firearm.

Issues

[5] The broad issues are whether the search of the motor vehicle constituted a violation of Mr. Bugle’s section 8 Charter rights, and, if so, whether the evidence so obtained should be excluded from the trial pursuant to section 24(2) of the Charter.

Facts

[8] It was admitted by the accused that Mr. Bugle was the operator of the motor vehicle which was ultimately searched. Continuity of the driver and the vehicle was admitted by the accused, as was the nature of the substances, firearms, and ammunition seized from the motor vehicle.

[149] I accept the evidence of Constables Scoulding, Petroschuk, and Brown.

[150] I accept Constable Waters’ evidence, but in relation to those things which she learned from other sources (e.g., that the licence plate on the vehicle had expired in February 2020), I only accept that at the time that was the information she had been told and upon which she acted. That information was hearsay and I do not, by accepting Constable Waters’ evidence, find that hearsay to have been proven as fact.

[151] On the whole I accept Constable Harris’s evidence (though I find he did not check the sun visor for documents). I find that when he began his search of the vehicle, his purpose was to look for documents associated with the vehicle in order to determine ownership and insurance details of the vehicle. However, I find that as soon as he located the empty baggies in the front footwell of the vehicle, which was well within the first minute of the search, Constable Harris’s search of the vehicle and its contents was solely in furtherance of a drug investigation. He was no longer looking for documents in order to complete a TSA report. He never was engaged in an inventory search.

Law and Analysis

[152] Section 8 of the Charter states that “everyone has the right to be secure against unreasonable search or seizure.”

[153] In R. v. Reeves, 2018 SCC 56, the Supreme Court of Canada set out a useful summary of the law which has developed in relation to section 8:

[11] Under s. 8 of the Charter, “[e]veryone has the right to be secure against unreasonable search or seizure.” The purpose of this provision is “to protect individuals from unjustified state intrusions upon their privacy” (Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 160). The s. 8 analysis is geared towards determining “whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement” (pp. 159-60).

[12] Section 8 of the Charteris only engaged if the claimant has a reasonable expectation of privacy in the place or item that is inspected or taken by the state (R. v. Cole, 2012 SCC 53 (CanLII), [2012] 3 S.C.R. 34, at paras. 34 and 36). To determine whether the claimant has a reasonable expectation of privacy, courts examine “the totality of the circumstances” (R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at paras. 31 and 45(5)).

[13] Further, “the essence of a seizure under s. 8 is the taking of a thing from a person by a public authority without that person’s consent” (R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at p. 431 (emphasis added)). In contrast, valid consent acts as a waiver of the claimant’s s. 8 rights. In such cases, there is no search or seizure within the meaning of the Charter, even though the claimant would ordinarily enjoy a reasonable expectation of privacy in the thing the police have taken or inspected (R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, at pp. 160-62; R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 12 C.R. (4th) 58 (Ont. C.A.), at p. 81).

[14] If s. 8 of the Charter is engaged, “the court must then determine whether the search or seizure was reasonable” (Cole, at para. 36). A warrantless search or seizure is presumptively unreasonable, and the Crown bears the burden of rebutting this presumption (Hunter, at p. 161; R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652, at para. 29). A search or seizure is reasonable “if it is authorized by law, if the law itself is reasonable and if the manner in which the search [or seizure] was carried out is reasonable” (R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278).

[154] The first issue to be determined is whether Mr. Bugle has standing to allege a section 8 Charter breach. In other words, Mr. Bugle must establish that he had a reasonable expectation of privacy in relation to the motor vehicle and its contents before he can allege that the search of the vehicle infringed his section 8Charter rights. The onus is on Mr. Bugle to prove, on a balance of probabilities, the existence of such a reasonable expectation.

[155] There must be a factual basis for a determination of whether a person has a reasonable expectation of privacy. In R. v. Jones, 2017 SCC 60, the Court said:

[32] In my view, that is best accomplished by concluding that counsel for a s. 8 applicant may ask the court to assume as true for s. 8 purposes any fact that the Crown has alleged or will allege in the prosecution against him. In other words, where the alleged Crown facts, if taken to be true, would establish certain elements of the applicant’s s. 8 claim, he or she need not tender additional evidence probative of those facts in order to make out those same elements. Although the entirety of the facts and the Crown theory may not be apparent at the time of the voir dire, the court may infer it from the nature of the charges. Alternatively, the court may encourage prosecutors to be forthright in regards to their theory.

[156] In the case at bar, the Crown is alleging that Mr. Bugle was in possession of drugs found in the vehicle, and that such possession for was the purpose of trafficking those drugs. The Crown is also alleging that Mr. Bugle was in possession of firearms and ammunition found in the vehicle, and that such possession, in the circumstances, constituted several offences under the Criminal Code.

[159] Consequently, the Crown has alleged, and Mr. Bugle is entitled to assert as established for the purposes of determining standing, that he was an occupant and the operator of the motor vehicle, and that he knew and had control of the drugs within it (the allegation of “possession”), and that he knew of the presence of the firearms.

[162] It must be remembered as a general proposition that due to the regulated nature of motor vehicles and their operation, those who operate motor vehicles have a reduced reasonable expectation of privacy. As was said in R. v. Wise (1992), 1992 CanLII 125 (SCC), 70 C.C.C. (3d) 193 (S.C.C.):

“All this is set out to emphasize that, although there remains an expectation of privacy in automobile travel, it is markedly decreased relative to the expectation of privacy in one’s home or office.”

[170] The case at bar is very different from that facing the court in R. v. Nicolosi, supra. In the case at bar, Constable Harris was never engaged in an inventory search. He began his search looking for documents disclosing information about the owner of the vehicle. In less than a minute, the search became part of a drug investigation in which Constable Harris was specifically looking for illegal substances.

[176] Consequently, I agree that by the time that Constable Harris arrived on the scene, the vehicle had been seized pursuant to section 173(1)(b) of the TSA.

[177] The Crown submitted that the seizure of the motor vehicle effected under section 173(1)(b) of the TSA completely eliminated any reasonable expectation of privacy Mr. Bugle might have held in relation to the motor vehicle, and therefore eliminated his standing to bring a section 8 Charterinfringement application.

[178] With respect, I disagree. Even in R. v. Nicolosi, supra, which dealt with an inventory search of a vehicle seized under the provisions of Ontario’s Highway Traffic Act, the Court went no further than saying that it did “not see how the appellant can establish a reasonable expectation of privacy with respect to any of the contents of the vehicle which were plainly visible upon entering the vehicle.” (Emphasis added)

[179] R. v. Nicolosi, supra, does not stand for the proposition that the vehicle seizure provisions of provincial legislation eliminate all reasonable expectation of privacy with respect to the entirety of the contents of the seized vehicle.

[186] I am of the view that Mr. Bugle had some reasonable expectation of privacy in respect of the vehicle and its contents sufficient to give him standing to bring an application alleging a section 8 Charter breach.

[187] The onus falls on the person alleging a Charter breach to prove that breach on a balance of probabilities. However, Constable Harris’s search of the vehicle and its contents was conducted without the authorization of a search warrant. It was, therefore, presumptively an unreasonable search. Consequently, the onus shifts to the Crown to rebut the presumption of unreasonableness.

[189] Constable Harris entered the vehicle and began his search of it in an effort to locate documents which would disclose the ownership and insurance of the vehicle. He did not begin his search as a search incidental to arrest. Rather, he said that he wanted information about the identity of the owner of the vehicle and its insurance so that he could complete a collision report to be submitted to the Provincial government. I take the report to which he made reference to be the report required by section 70 of the TSA:

“A peace officer shall, in the form and the manner prescribed by regulations, provide to the Registrar reports respecting accidents involving vehicles.”

See also R. v. Rowson, 2015 ABCA 354 at paragraph 46.

[194] In my view, nothing in section 70 of the TSA, or the regulations under the TSA, authorizes the search of a motor vehicle for the purpose of completing the reports referred to in section 70.

[196] With respect, I am of the view that the analogy fails. Justice Doherty in Nicolosi was of the view that one could not “keep the impounded property safe” unless one itemized it. In the case at bar, there were many ways to obtain information about the ownership and insurance of the vehicle without searching it. It is to be remembered that Constable Harris took no steps to find out the owner of the vehicle other than conduct a CPIC search of the vehicle’s VIN. He did not speak to the officers who had spoken to the accused. He did not contact the accused at the hospital. He did not check the police database “LiveLink” for the documents he was seeking. He did not even know if the documents had already been produced. In Nicolosi, Doherty, J.A. was of the view that one had to itemize the contents of the vehicle in order to comply with the Highway Traffic Act. In the case at bar, searching the vehicle for documents was but one of several ways to try to locate the information.

[197] Section 70 imposes a duty of a peace officer, but it does not provide to a peace officer who is in the process of complying with the section any authority to take actions in addition to the authority the peace officer already has in law. Section 70 and its regulations do not clothe the peace officer with any additional powers in law.

[198] Further, the duty imposed on a police officer by section 70 of the TSA is to provide the specified report to the Registrar. Though there is an implied obligation to make reasonable efforts to complete the form, a police officer who has made those reasonable efforts would not be in violation of section 70 if, in spite of those reasonable efforts, information requested by the form was missing. “Reasonable efforts” to obtain the requested information does not encompass infringing upon an individual’s section 8 Charter rights.

[199] The Crown submitted that the Alero motor vehicle was not legally on the road because it bore an expired licence plate. However, there is no evidence that the licence plate was expired. Constable Waters testified that she was of the view that the vehicle’s licence plate had expired in February 2020, but that is not the same as there being evidence before the Court that the licence plate was in fact expired. Constable Waters’ statement about her understanding that the licence plate on the vehicle had expired was admissible evidence to explain why she took the steps she took, but it is not admissible evidence to prove that the licence plate had actually expired.

[200] The Crown submitted that once Constable Harris noticed small Ziplock bags in the front passenger side footwell and formed the opinion that those bags looked like illegal drug packaging, his search became a search incidental to arrest. It is to be noted that he did not see anything in those bags. However, he immediately converted his search for documents to a search for evidence of criminal activity (drugs).

[203] The Crown quite correctly submitted that a search can be incidental to arrest even before the arrest is effected. However, there must have existed reasonable grounds to arrest the person before the search was undertaken. The law is helpfully summarized in R. v. Mengesha, 2021 ONSC 1809 at paragraphs 63-66:

63  The prosecution in support of this officer’s authority to search prior to arrest relies upon the Court of Appeal’s decision in R. v. DeBot, 1986 CanLII 113 (ON CA), [1986] O.J. No. 994, affirmed 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140.

64  The Court of Appeal in DeBot stated:

32. Counsel for the appellant also contended that the search of the respondent was also authorized as incident to a valid arrest, even though the respondent was not arrested until after the search. It is axiomatic that a search may not precede an arrest and serve as part of its justification, for example, where prohibited drugs are found on the suspect’s person in the course of the antecedent search and constitute the probable cause for the subsequent arrest. On the other hand, it is well established in the United States that where probable grounds exist for arresting a person, apart altogether from evidence discovered by a search, the fact that the search preceded the arrest does not preclude it from being a search incident to a valid arrest, where the arrest quickly follows on the search: see People v. Simon, 290 P. 2d 531 (1955); United States v. Rogers, 453 F. 2d 860 (1971); State of Maine v. LeBlanc, Me., 347 A. 2d 590 (1975); In The Matter of John Doe, a Child, 547 P. 2d 566 (1976); Rawlings v. Kentucky, 100 S. Ct. 2556 at 2564 (1980).

…

37.The reasoning of Traynor J. contemplates the situation where an officer has probable cause to arrest the suspect but postpones his or her decision to arrest the suspect. The officer, thus, avoids making an actual arrest, if the search proves that his or her belief that there was probable cause was erroneous. In my view, it may also very well be that a police officer, notwithstanding that he or she has reasonable and probable grounds upon which to make an arrest, may decide that, if the search does not disclose evidence of the offence, there would be no chance of obtaining a conviction. Hence, the officer may decide not to proceed further by making an arrest. I am of the view that Constable Birs, prior to searching the respondent, had reasonable and probable grounds to believe that DeBot had committed an indictable offence: namely, possession of a controlled drug, methamphetamine, for the purpose of trafficking. Constable Birs was justified, pursuant to s. 450 of the Code, in arresting DeBot without warrant. Holding that the search in the present case was incident to a valid arrest is consistent with the policy underlying the justification for a search incident to a valid arrest and is not precluded by authority.

38.In my view, in addition to being authorized under s. 37 of the Food and Drugs Act, the search of the respondent, in the circumstances, was properly incident to a lawful arrest. The search of the respondent did not contravene s. 8 of the Charter.

65  I do not understand the Court of Appeal in DeBot thereby determining that:

a.      Police have an unlimited right to conduct a warrantless search of a citizen prior to and absent reasonable and probable grounds to arrest; or

b.      That police have any such unlimited right to conduct a warrantless search of a citizen’s property pre-arrest, despite having seen the person committing a drug offence, and with that knowledge, having already decided that the individual will not be charged for such conduct.

66  R. v. Thompson, 2013 ONSC 1527 (CanLII), [2013] O.J. No. 1236 (SCJ), para 164, supports this Court’s above interpretation of the DeBotdecision.

[204] In the case at bar, Constable Harris began the search for drug related items solely on the basis of finding empty Ziplock baggies in the passenger side footwell of the motor vehicle. Constable Harris had nothing else upon which to base his search for drug related items. It was a classic case of conducting a warrantless search while in possession of no information which would give rise to a reasonable suspicion of, much less a reasonable belief of, criminal activity, then seizing items found which were indicative of criminal activity, and then saying that the search was ancillary to a subsequent arrest which was based solely on the items seized. On that analysis, every warrantless search which uncovers items supporting a subsequent arrest is a search incidental to that arrest and is Charter immune.

[205] Constable Harris’s search of the motor vehicle was not a search incidental to arrest.

[206] Constable Harris was not involved in an inventory search.

[207] There was no authority in law for Constable Harris to search the vehicle for documents relating to the ownership of the vehicle or its insurance. The TSA imposed a duty upon him to complete a report for the Registrar; it did not give him authority to search a vehicle, or anywhere else, in order to obtain information required by the report.

[208] Consequently, Constable Harris had no lawful authority to enter the vehicle for the purpose of searching for “vehicle documents”. Apart from the fact that he should not have been in a position to find the Ziplock bags in a footwell of the vehicle, the finding of those empty Ziplock bags without more gave him no grounds to form a reasonable belief that a drug related offence had been committed, and, therefore, he had no reasonable grounds to search the vehicle for evidence of a drug offence.

[209] I find that Constable Harris’s search of the vehicle and the seizure of items as a result of that search, infringed Mr. Bugle’s section 8 Charter rights twice (once by the search for documents, and once by the search for drugs).

Section 24(2) Analysis

Seriousness of the Charter-infringing State Conduct

[215] In R. v. Le, 2019 SCC 34, the Court said:

143. This Court has previously observed that, when considering the seriousness of the Charter-infringing conduct, a court’s task is “to situate that conduct on a scale of culpability” (Paterson, at para. 43). The operating premise here is that inadvertent, technical or otherwise minor infringements impact less upon the rule of law and, therefore, upon the reputation of the administration of justice than wilful or reckless disregard of Charter rights (Grant, at para. 74; Harrison, at para.22). Further, as this Court held in R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59, and Paterson, at para. 44, a “good faith” error on the part of the police must be reasonable and is not demonstrated by pointing to mere negligence in meeting Charter standards. In other words, the reputation of the administration of justice requires that courts should dissociate themselves from evidence obtained as a result of police negligence in meeting Charter standards.

[216] In the case at bar, there were two separate section 8 breaches and that is also relevant to the seriousness of the state-infringing conduct: R. v. Bohn, 2000 BCCA 239 at paragraph 45.

[217] The first breach occurred when Constable Harris entered the vehicle to look for documents about the vehicle. He had no authority to do so. The police had authority to enter the vehicle to aid in its transportation to the impound facilities, but that was not Constable Harris’s stated purpose. Indeed, given the extent of the damage to the vehicle, there is no indication that entry would have been needed to effect transportation.

[218] Constable Harris’s belief that he had the authority to enter the vehicle to search for documents giving information about the ownership and insurance of the vehicle was not a reasonable belief.  He had done nothing to determine if the information he sought had already been provided to other police officers, nor had he done anything to contact the known driver of the vehicle.  Indeed, the vehicle Seizure Notice was completed either before or at about the same time that Constable Harris was on scene, and the officer completing it filled in a name of “registered owner”. Finally, the TSA imposes a duty on the officer to complete a collision report; nothing in it suggests that it grants search powers to aid in the fulfilment of that duty. The combination of these factors makes unreasonable Constable Harris’s belief that he had the authority to search the vehicle for documents.

[219] Constable Harris then compounded his first section 8 infringement with a second one. While engaged in a Charter infringing search, he discovered empty Ziplock plastic bags in the passenger front footwell of the vehicle. He immediately, and without more, formed the unreasonable belief that he had the authority to search the vehicle for drugs. Again, this may have been an honest belief, but it was completely unreasonable.

[220] As stated in R. v. Del Corro, 2019 ABCA 156, at paragraph 68:

“For the purposes of s. 24(2), an honestly held belief on its own does not constitute good faith…a Charter breach committed on the basis of an officer’s honest but unreasonable belief about his authority is not a good faith breach: Buhay at para. 59.”

Impact of the Breaches on Charter Protected Interests

[224] In the case at bar, Mr. Bugle was not the owner of the motor vehicle. He had a reduced reasonable expectation of privacy in the vehicle. The search of the vehicle included looking into a purse and fitness bag. There is no evidence before me that any sort of inventory search of the vehicle would have been conducted of the vehicle (the Calgary Police Service policy on inventory searches was described pithily by Constable Harris as “looking for visible items of value or concern like bodies in the trunk”). Consequently, there is no evidence that the items seized would have been discovered absent the Charter breaches.

[226] In the case at bar, though Mr. Bugle’s reasonable expectation of privacy in the vehicle was low, that does not mean that “the searches of the vehicle and its contents were trivial intrusions.” There was no reasonable basis or justification for the two searches undertaken. The second search also included looking into a purse and sports bag. Both those items attract strong privacy interests.

[227] As in R. v. Del Corro, supra, I find that the Charter infringing conduct significantly intruded on Mr. Bugle’s privacy interests as protected by section 8 of the Charter.

Balancing the Factors

[232] In R. v. McGuffie (2016), 2016 ONCA 365 (CanLII), 336 C.C.C. (3d) 486 (Ont. C.A.), Justice Doherty said:

[61] After Grant, at paras. 71-86, the admissibility of evidence under s. 24(2) is approached by examining:

•        the seriousness of the Charter-infringing state conduct;

•        the impact of the breach on the Charter-protected interests of the accused; and

•        society’s interest in an adjudication on the merits.

[62] The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence.  The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion.  The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant.  The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence.  That pull is particularly strong where the evidence is reliable and critical to the Crown’s case:  see R. v. Harrison (2009), 97 O.R. (3d) 560, [2009] 2 S.C.R. 494, [2009] S.C.J. No. 34, 2009 SCC 34, at paras. 33-34.

[233] In the case at bar, the first Grant factor strongly favours exclusion of the evidence. The second Grant factor strongly favours exclusion. The third factor strongly favours inclusion of the evidence

[236] However, I do not take the Court to be saying that whenever a firearm is discovered as a result of a Charter infringing search that the balance must always be found to be in favour of inclusion of the evidence. Firearms do not, solely by their existence, invariably cause those having section 8 Charter standing in relation to them to be denied the constitutional protections of the Charter.

[237] I am of the view that in the case at bar, the Court must not be associated with the Charter infringing conduct. The short-term difficulty occasioned by excluding the evidence, including the firearms, from the evidence is less damaging to the administration of justice than the long-term damage occasioned by being seen to condone the Charter infringing conduct.

Ruling

[238] Pursuant to section 24(2) of the Charter, I exclude from the evidence in the trial those things seized from the motor vehicle.

R v Carter, 2021 ABQB 430

[June 9, 2021] Motion for Particulars [Justice D.A. Labrenz]

AUTHOR’S NOTE: Motions for particulars are rarely a significant part of criminal defence litigation. However, in this perjury case, the point was significant. The Crown provided a number of transcripts from a prior proceeding which were simply highlighted to suggest there was falsehoods within the block highlights. Defence brought an application to determine what exactly was suggested to be a lie.  The Justice agreed that despite some effort to narrow the scope of the potential lies, the highlights were insufficient to put the accused on notice of the case to meet. The question to be answered is what precisely am I alleged to have lied about?

Introduction

[1] The Applicants, Kenneth Robert Carter [“Mr. Carter”] and Stephen Charles Walton [“Mr. Walton”], seek an order compelling the Crown to provide particulars pursuant to s.587(1)(a) of the Criminal Code of Canada, RSC 1985, c C-46 [“Criminal Code”] in relation to a perjury trial presently scheduled to commence October 12, 2021. The Crown resists this application. Mr. Carter filed his application on March 16, 2021 and Mr. Walton on April 21, 2021.

Background

[2] On June 15, 2015, Mr. Carter and Mr. Walton were charged with criminal harassment and perjury by way of an information sworn that date. On June 28, 2016, the Crown elected to prefer a direct indictment in relation to both charges. Mr. Walton and his wife were also charged, at the same time, with additional counts on the same indictment.

[3] On April 13, 2018, the accused filed an application for severance of the counts and of the accused. Tilleman J heard the applications and gave his decision on July 18, 2018, granting the severance of the perjury charges. However, Justice Tilleman denied the application to have Mr. Carter tried separately from Mr. Walton.

[4] The criminal charges against Mr. Carter and Mr. Walton, other than the perjury charges, proceeded to trial in the fall of 2018. As I have already mentioned, it is the perjury charges that are the subject of the present application for criminal particulars. The indictment as presently framed alleges as follows:

Mr. Carter stands charged that he:

Between the 10 th day of March, 2014, and the 18 th day of March 2014, both dates inclusive, at or near Calgary, Alberta, did, with intent to mislead, orally make before the Court of Queen’s Bench of Alberta false statements under oath or solemn affirmation, thereby committing perjury, contrary to section 132 of the Criminal Code of Canada.

Mr. Walton stands charged that he:

On or about the 21 st or [sic] March, 2014, at or near Calgary, Alberta, did, with intent to mislead, orally make before the Court of Queen’s Bench of Alberta false statements under oath or solemn affirmation, thereby committing perjury, contrary to section 132 of the Criminal Code of Canada.

[5] The perjury charges against both Mr. Carter and Mr. Walton arose from the testimony of both before this Court in March of 2014 in relation to a trial that involved the parenting of Mr. Carter’s child who was at the time of trial just over 2 ½ years old. Ms. Akele Taylor, the mother of the child, was the defendant of that particular civil action and was also the complainant in relation to the criminal harassment charges that went to trial in 2018.

[9]               Following a pre-trial conference on November 13, 2018, the prosecution agreed to provide further information in relation to the perjury charges to alleviate this concern as first raised by Mr. Carter. The Crown, responding to the suggestion that the accused were unable to determine what the Crown alleged to be the perjured testimony, sent a letter to counsel for both Mr. Carter and Mr. Walton on January 4, 2019, which stated in part as follows:

With respect to your request for more detailed particulars relating to the perjury matter for both Kenneth Carter and Stephen Walton we can advise that the testimony that the Crown alleges to have been made falsely under oath relates to the nature of the business arrangement between Mr. Carter and Mr. Walton following the ending of the relationship between Akele Taylor and Mr. Carter. This includes:

•       Mr. Carter’s involvement in the business arrangement;

•       Instructions give to Mr. Walton by Mr. Carter;

•       Payments made as part of the business arrangement between Mr. Carter and Mr. Walton;

•       What information was communicated between Mr. Carter and Mr. Walton as part of the business arrangement; and

•       Mr. Carter’s reaction to information received during the business arrangement.

[11] On September 14, 2020, just before Mr. Carter’s previous counsel was granted leave to withdraw as counsel of record on September 21, 2020, the Crown emailed counsel for Mr. Walton and counsel for Mr. Carter a copy of Mr. Walton’s trial transcript from the March 2014 trial. That transcript was highlighted by the Crown in an attempt to identify the statements that the prosecution claimed constituted Mr. Walton’s perjured statements. In the same emailed correspondence, the Crown promised it would duplicate this effort for the benefit of Mr. Carter. The Crown stated in the September 2020 email, amongst other things, as follows:

We are also going to argue that Steve Walton’s reason for having Reggie Hunt attend Akele Taylor’s residence in March of 2013 was not what he testified to. His characterization of that incident is at pages 1266-1168 (direct examination) and 1300-1303 (cross examination). We have identified these portions in the transcript as well, this time by indicating where they start and end instead of using yellow highlighting…

[12] Following a further pre-trial conference in January of 2021, this Court directed the Crown to provide a response to the Defence request for further particulars of the alleged perjury by February 15, 2021.

[13] On February 13, 2021, the Crown provided highlighted transcripts of both Mr. Carter and Mr. Walton’s testimony from the March 2014 trial, and referenced other material as follows:

“…a draft of the Agreed Statement of Facts, a copy of the “Offlines” exhibit reference within the ASF, a highlighted copy of Mr. Carter’s transcript, which is our response to your request for particulars, and a copy of an email sent to previous counsel and Mr. Hepner which includes the highlighted copy of Mr. Walton’s transcript which is, again, our response to the request for particulars.”

[14] At the January pre-trial conference, counsel for Mr. Carter and Mr. Walton were directed to provide a response concerning the particulars issue by March 12, 2021. Having not received a response from Defence counsel, the Crown emailed both counsel seeking their position as to the need for formal particulars on March 15, 2021. Counsel for Mr. Carter responded indicating that that the email of February 13 th did not satisfy the request for further particulars and that a motion for particulars would be filed.

Arguments

[15] As a starting point Defence counsel on behalf of Mr. Carter concedes, referencing ss.581–586 of the Criminal Code, that the perjury count he faces is sufficient, and that he is not seeking to quash the indictment by reason of insufficiency.

[16] Defence counsel advises, instead, that of the 35 passages highlighted by the Crown from his trial testimony he is unable to determine with any degree of certainty what the Crown alleges to be a false statement in 25 of the 35 highlighted passages. With respect to the 10 passages in which Defence believes that they have correctly identified what the Crown alleges to be a false statement, the Defence would like some confirmation from the Crown that they are correct.

[17] Defence counsel advise that in relation to the remaining 25 passages, that neither the Stinchcombe disclosure nor the Crown’s correspondence or highlighting permits them to answer the basic question of what it is that the Crown alleges establishes a criminal offence under s.132 of the Criminal Code.

[18] In bringing forward Mr. Carter’s application for particulars under s. 587(1)(a) of the Criminal Code, Defence counsel conceded that the Defence has no right to request the specific evidentiary grounds that the Crown will rely upon for proof of the falsity of each statement, or the manner or path to liability from which the Crown argues in any given case that perjury occurred. On the later point, Mr. Greenspan in his oral argument provided two examples of paths to liability that he concedes do not properly require particularization by the Crown. The first example Mr. Greenspan referred me to was the dishonest failure to recollect (with intent to mislead) found in R v Wolf, 1974 CanLII 161 (SCC), [1975] 2 SCR 107 and, as a second example, the literally true statement uttered by accused who knew that the true statement would be taken in a misleading way as was the case in Farris v The Queen, 1965 CanLII 201 (ON CA), [1965] 2 OR 396 (ONCA).

[19] Instead, as opposed to the conceded impermissibility of attempting to receive a roadmap as to avenues the Crown will follow to argue proof of the alleged perjury, or as an attempt to impermissibly secure the theory of the Crown as to liability, Defence counsel argue that the meaningful right to full answer and defence must always include, in language borrowed from Justice Benotto (as she then was) in R v Armour Pharmaceuticals Company, [2006] OJ No 4738 (ONSC) at paras 20-21, an answer to the question of “precisely what it is that I am supposed to have done?”

Analysis: The Sufficiency of the Counts

[39] The modern approach to the sufficiency of a count as contained in an indictment was succinctly stated by Cory J in R v Douglas, 1991 CanLII 81 (SCC), [1991] 1 SCR 301 at p 314 as follows:

From these cases it can be seen that an indictment is adequate if it contains sufficient details to give the accused reasonable information with respect to the charge and to enable the accused to identify the transaction so as to permit the adequate preparation of a defence. Whether an indictment is sufficient will depend on the offence charged and the facts of the case. Time is not required to be stated with exact precision unless it is an essential part of the offence charged and the accused is not misled or prejudiced by any variation in time that arises.

[40] Cory J in Douglas also referred to the helpful statement made by Justice Wilson in R v B(G), 1990 CanLII 7308 (SCC), [1990] 2 SCR 30 at pp 44-45 as follows:

[41] The purpose of an indictment is principally, therefore, to put an accused on formal notice of potential legal jeopardy. Another convenient way to express this concept is to say that an accused is entitled to be sufficiently apprised of the charge or charges to be met: R v Guérin, [1996] QJ No 376 (QCCA).  As mentioned earlier, Justice Benotto in Armour Pharmaceuticals at para 20,succinctly and accurately summarized the law by stating that an indictment should “answer with clarity the essential question which every person asks: precisely what is it that I am supposed to have done?”

[42] In R v Coté, 1977 CanLII 1 (SCC), [1978] 1 SCR 8 at p 13, de Grandpré J described the necessity that an accused be reasonably informed of the charge or charges, as being the “golden rule” in the following words:

An important function of an indictment is to put the accused on formal notice of his or her potential legal jeopardy.  It is equally important, of course, that if the Crown can establish some but not all of the facts described in the indictment or set out in the statutory definition of the offence, and such partial proof satisfies the constituent elements of a lesser and included offence, that the result be not an acquittal but a conviction on the included offence.  As Professor Glanville Williams wrote, “an included offence is one that is made out of bits of the offence charged” (“Included Offences” (1991), 55 J. Crim. L. 234, at p. 234).  Any other outcome would result in a waste of the resources expended on the trial.

[44] Defence counsel, while conceding sufficiency, argue that beyond the acknowledged sufficiency of the counts – further particulars are required by both Mr. Carter and Mr. Walton to ensure a fair trial. In order to adequately defend, both accused argue that they need some assistance to “define the factual transaction that the prosecution must prove to support a conviction”: R v Krymowski, 2005 SCC 7 at para 18; citing, R v McCune, (1998) 1998 CanLII 15035 (BC CA), 131 CCC (3d) 152 (BCCA); R v Groot, [1993] 3 SCR 664.

The Application Under s.587 of the Criminal Code

[45] Beyond concluding that a count or counts contained in an indictment are properly and sufficiently drafted, in some circumstances, an accused might reasonably require greater particularization of the allegations so as to properly prepare a defence and receive a fair trial. In other words, where the indictment is legally sufficient as drafted, the additional request for clarification as to the underlying details of an offence, is a matter for particulars: R v Colgan, 1987 CanLII 6 (SCC), [1987] 2 SCR 686.

[47] As I consider Mr. Carter and Mr. Walton’s present application, which is discretionary under s.587, it is important that I remain respectful of the constitutional protection afforded to Mr. Carter and Mr. Walton’s right to make full answer and defence. The right to full answer and defence itself is afforded constitutional protection as one imperative of the principles of fundamental justice included in s.7 of the Canadian Charter of Rights and Freedoms [“the Charter”]; and, interrelatedly, as an aspect of the right to a fair trial under s.11(d) of the Charter: R v Rose, 1998 CanLII 768 (SCC), [1998] 3 SCR 262 at paras 93 and 98.

[48] In R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326 at p 336, Sopinka J described the right to make full answer and defence as “one of the pillars of criminal justice on which we heavily depend to ensure the innocent are not convicted”. The right to full and timely disclosure, as an aspect of the right to make full answer and defence, ensures that no accused person should be prosecuted by surprise or ambush – because to do so risks the conviction of the innocent.

[49] As identified by the Supreme Court of Canada in Rose,there are two important and interrelated aspects to the right to make full answer and defence. The first involves the right of the accused to know the case that he or she must meet before deciding whether to respond with defence evidence, and the second protects the right of an accused to meaningfully defend against the prosecution’s efforts to secure a conviction. The majority in Rose stated at paras 102-103 as follows:

In our view, it is useful to distinguish here between two discrete aspects of the right to make full answer and defence.  One aspect is the right of the accused to have before him or her the full “case to meet” before answering the Crown’s case by adducing defence evidence.  The right to know the case to meet is long settled, and it is satisfied once the Crown has called all of its evidence, because at that point all of the facts that are relied upon as probative of guilt are available to the accused in order that he or she may make a case in reply:  see R. v. Krause,  1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466, at p. 473, per McIntyre J.; John Sopinka, Sidney Lederman and Alan Bryant, The Law of Evidence in Canada (1992), at p. 880.  This aspect of the right to make full answer and defence has links with the right to full disclosure and the right to engage in a full cross‑examination of Crown witnesses, and is concerned with the right to respond, in a very direct and particularized form, to the Crown’s evidence.  Inherent in this aspect of the right to make full answer and defence is the requirement that the Crown act prior to the defence’s response.

A second and broader aspect of the right to make full answer and defence, which might be understood as encompassing the first aspect, is the right of an accused person to defend himself or herself against all of the state’s efforts to achieve a conviction.  The Crown is not entitled to engage in activities aimed at convicting an accused unless that accused is permitted to defend against those state acts.  However, it is not always the case that defending against the Crown’s efforts to convict will necessarily imply answering words already spoken or deeds already engaged in by the Crown…

[50] It is important not to lose sight, when deciding whether particulars should be ordered under s.587 of the Criminal Code, that an accused’s right to make full answer and defence be properly respected as one of the guardians of the presumption of innocence. The right to timely and full disclosure, as an integral aspect of the right to full answer and defence, is rendered ineffective where – although an accused is in possession of the fruits of the investigation by reason of the Crown’s disclosure – an accused is unable to determine the case to meet because of the generic nature of the counts. In such circumstances, the provision of formal particulars by the prosecution serves as an important adjunct to the right to make full answer and defence. The particulars serve to reasonably inform an accused as to details of the criminal offence he/she is said to have committed. Agreeably, and as incidental, the provision of the crown’s particulars might also usefully serve to assist the trial judge in the making of “proper, adequate and expeditious rulings on the admissibility or otherwise of the evidence sought to be adduced”: R v Cominco Ltd, (1978) 1978 CanLII 1997 (AB QB), 91 DLR (3d) 541 at p 546.

Why Are Particulars Required Here?

[51] The frequent difficulty for an accused charged with perjury arises when an attempt is made to ascertain what specifically the Crown alleges to be the “false statement” at issue under s.131(1) of the Criminal Code. This section provides as follows:

…every one commits perjury who, with intent to mislead, makes before a person who is authorized by law to permit it to be made before him a false statement under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that the statement is false.

[52] From the perspective of an accused who seeks to understand what it is that the prosecution alleges that he/she has done, in the context of a perjury prosecution, it is relevant as a measure of the difficulty of answering that essential question, to acknowledge that s.118 of the Criminal Code defines “evidence” or “statement” (for the purposes of offences under Part IV of the Criminal Code) very broadly, as “an assertion of fact, opinion, belief or knowledge, whether material or not and whether admissible or not”.

[53] Is also worth acknowledging that s.131 does not require the false testimony to successfully mislead the Court, and is in that sense an inchoate crime, because the Crown need only prove an attempt to mislead (even if unsuccessful). Again, from an accused’s perspective, this further complicates the accused’s efforts at determining what exactly the Crown relies upon as constituting the underlying elements of the offence, i.e., what is the false statement?

[55] Finally, and again as a measure of the difficulty an accused might have in attempting to determine what the prosecutions alleges he has done (in the context of a generic perjury charge) a literally true statement may lend itself to a perjury conviction if uttered knowing that it would be taken in a misleading way: Farris v The Queen.

[56] The Crown argues, for the purposes of the upcoming trial, that it has done all that it can reasonably be required to do by highlighting the passages of testimony excerpted from the viva voce testimony of Mr. Carter and Mr. Walton from the 2014 parenting trial. Beyond highlighting the transcript, the Crown identifies a variety of supplementary material, including the 2,301-page PIMS report (complete with a police investigator’s notations) as adequately answering the question of what the Crown alleges to be the false statements of both men. Beyond this material, the Crown identifies the judicial fact-finding decision from the criminal harassment trial, the evidence taken during the criminal harassment trial, and the Crown’s letter of January 4, 2019 as providing sufficient information to Mr. Carter and Mr. Walton to make full answer and defence.

[57] In the present circumstances, I do not agree with this submission made by the Crown.

[58] While all of these sources of information may well serve to narrow the scope of what Mr. Greenspan aptly referred to as a “scavenger hunt”, it is important to remember that determining the exact loci of the Crown’s perjury allegations is next to impossible without sufficient assistance.

[59] I say this because I agree with Defence that the excerpts highlighted by the Crown reveal a multiple of possible permutations as to what may or may not be the false statements alleged by the Crown to constitute the basis of a perjury conviction (the actus reus).

[60] Indeed, the difficulties associated with identifying the underlying factual transactions with an inchoate crime like perjury are such that I accept the submissions made by both Mr. Carter and Mr. Walton to the effect that both men are unable to determine what exactly the Crown alleges constitute the underlying false statements. Perjury, in this sense, is unlike most criminal offences where the “what” of the alleged criminality is exceedingly obvious from the disclosure provided by the Crown.

[62] An individual facing a perjury charge is very often in a different position. This is because even a few simple sentences will often contain a multitude of assertions as to fact, opinion, belief, or knowledge, that the Crown may, or may not, allege constitute the underlying false statements for the purposes of the prosecution. As I earlier noted, the Crown may not allege that every false statement was uttered with the intention to mislead, or conversely, the Crown may suggest that literally true statements were uttered with the requisite intention to mislead.

[63] Some examples, might best illustrate the difficulty, referring to the portions of Mr. Carter’s trial testimony highlighted at pp 131 -132:

1. The Crown highlighted as follows:

Q …what was the arrangement between and you (sic) Mr. Walton? Can you detail that?

A He was engaged to help protect me, give me advice on that, and do certain things on that, and see what he could find out about Ms. Taylor’s past.

Q …And did you and Mr. Walton get into details of how he would find out these things about Ms. Taylor?

A Yeah. He said, Ken. He said, This is how it’s going to work. I’ll bring you information. You don’t ask how I got it. I said fine.

Q Now, there’s been a suggestion by Ms. Taylor that were involved in or instructing Mr. Walton to provide money to some of her acquaintances to get information about her. What do you say about that?

A The deal with Steve which – our entire time together was, Ken, I’m going to give you advice on protection and I’m also going to bring you information, and you don’t ask how I got it.

2. As counsel for Mr. Carter identities, the foregoing highlighted questions and answers might involve a number of discrete false statements, but Mr. Carter does not know if the Crown alleges he made a false statement related to:

i. His belief regarding the purpose for which Mr. Walton was engaged;

ii. The fact of what Mr. Walton said to him at their initial meeting;

iii. The fact that throughout their engagement what was said to him at the initial meeting continued to be their arrangement;

iv. The fact that this arrangement extended to Mr. Carter being “involved in or instructing” Mr. Walton to provide money to acquaintances of Ms. Taylor; or

v. Some combination of the above.

3. Mr. Carter also provided an example of the difficulty created in a much shorter answer given by Mr. Carter as follows:

A… So that would have been August 8th , 9th , 10th . That would have been Wednesday, Thursday, Friday. Ms. Taylor was not responding. So—and in addition to that during those couple days, Ms. Walton very quickly found out some scary information about Ms. Taylor, so I went into hiding.

4. With respect to this short answer, counsel pointed out the following possibilities as to potential false statements:

i. The fact of the states that this event occurred;

ii. His knowledge that Ms. Taylor hadn’t responded, or that someone had not tried to contact her;

iii. The fact that Mr. Carter had not learned information from Mr. Walton regarding Ms. Taylor;

iv. His belief regarding this information;

v. The fact that this information had caused him to go “into hiding”;

vi. The fact that he went into hiding; or,

vii. Some combination of these passages.

[64] Having exampled the difficulties faced by Mr. Carter in these highlighted passages, it is unnecessary to repeat this exercise with the remaining passages highlighted by the Crown in relation to Mr. Carter or the passages similarly highlighted in relation to Mr. Walton.

[65] The inability of Mr. Carter and Mr. Walton to appropriately identify what it is that the Crown alleges to be the false statements negatively impacts upon the ability of both men to make full answer and defence. As Defence counsel argue, the ability to answer this simple question is critical to the ability of Defence to determine what witnesses must be sought out by the Defence, what evidence must be located, and what evidence of a testimonial or documentary nature might be used by the accused to confirm the truthfulness of any given statement.

[66] The Crown argues that the totality of the disclosure makes it obvious as to what portions of the accused’s testimony is false. In particular, the Crown referred to the PIMS report.

[67] I have not found this submission from the Crown to be particularly helpful. The PIMS report and the disclosure were not placed before me, and I did not find the materials that were placed before me to be particularly helpful or illuminating as to the specific statements that the Crown alleges to be false.

[68] I see nothing in the information provided to Defence by way of disclosure, or otherwise, that obviates the need for particularization of the alleged false statements. Fulsome Crown disclosure may in most cases obviate the need for particulars, but disclosure is never a substitute for particulars in those situations where some particularization is necessary for the purpose of making full answer and defence.

[81] In my view, considering the legal authorities, the Crown’s present complaint that the Defence is inappropriately seeking to conscript the Crown’s theory as to liability, or the means by which the Crown intends to prove its case, is misplaced. What is sought, instead, by both Mr. Carter and Mr. Walton is particularization of an essential element of the charge (the actus reus of the offence, i.e., what the Crown alleges are the false statements uttered by the accused) as opposed to the Crown’s theory of liability.

[82] The particulars order sought by both Mr. Carter and Mr. Walton do not confine the Crown to a particular theory of liability. Both Mr. Carter and Mr. Walton do ask me to have the Crown reveal its theory as to liability, nor do they ask that the Crown particularize the evidence that it will call. Instead, both accused appropriately seek to have the Crown identify which statements, in particular, are alleged by the Crown to constitute the actus reus of the offence before the Court.

[83] The applications of Mr. Carter and Mr. Walton are therefore unlike the application of Mr. Thatcher seeking to limit the Crown to a particular path to liability, whether as shooter or as someone who contracted the killing. Nor, is the present application like that in Violette, where the accused sought to limit the Crown to a particular theory based upon “the benefit of”, “the direction of” “or in association” with the specified criminal organization.

[84] To be clear, based upon the relevant authorities, I agree with the Crown that the purpose of ordering particulars cannot be to restrict the legal basis of the accused’s potential criminal liability, either as a particular mode of committing an offence, or as an attempt to restrict the Crown from seeking a conviction either as a principal or a party. I also agree with the Crown that an application for particulars should not be granted where the purpose of it is an attempt to restrict the Crown to rely upon only a part of the definition of a criminal offence.

[85] The application of Mr. Carter and Mr. Walton, I repeat, is not of this prohibited nature. Instead, I am satisfied that particulars must be ordered to ensure that sufficient information is provided to both accused to safeguard the right to make full answer and defence. This, to my mind, does not fetter the prosecution in the conduct of its case. It is a matter of answering the essential question of “what” it is that the Crown alleges both men have done. As Mr. Greenspan ably put in his oral argument, “this is not a question of the route to liability, it is a question of what the applicant is alleged to be liable for”.

[91] While the accused have not been diligent, and although to some extent this is explained by the focus of counsel after severance upon the criminal harassment trial, and in Mr. Carter’s case his change in counsel, I am not prepared to hold that the right of the accused to make full answer and defence can be sacrificed on the altar of expediency. I note that the scheduled perjury trial is several months away, and the Crown should have no difficulty in providing the requested particulars.

Conclusion

[92] I am satisfied that this is an appropriate case for me to exercise my discretion to order that the Crown provide particulars pursuant to s.587(1)(a) of the Criminal Code to ensure a fair trial. I say this because I have concluded that the underlying factual transactions are not sufficiently delineated such as to permit meaningful full answer and defence. The prosecution, within 60 days of these reasons, shall provide particulars to counsel for Mr. Carter and Mr. Walton, and file those particulars with the Court. The particulars ordered are as follows:

1. Setting out the specific false statements that the Crown relies upon based upon the excerpts from the transcript of the March 2014 parenting trial;

2. Particularizing, in each case, the part(s) of each alleged individualized statement that are said by the prosecution to false, and knowingly uttered by either Mr. Carter or Mr. Walton with the requisite intention to mislead;

3. In all instances, the Crown need not identify the evidence that it will adduce in an attempt to prove a false statement was knowingly made with the requisite intention to mislead, or the evidence it will adduce in an attempt to prove that a true statement was knowingly uttered with intention to mislead; and

4. In all instances, the Crown is not required to particularize its “theory” as to liability, and this decision should not be read as limiting either accused’s potential liability for the perjury offence. While the Crown is bound to prove formal particulars (subject to the surplusage rule), it is not obliged to prove a specific theory of its case.

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