This week’s top three summaries: R v Blackhorse, 2023 ABPC 41: #similar fact, R v Atwell, 2023 NSSC 63: #disclosure vetting personal info, and R v MG, 2023 ABPC 38: 11(b) Charter: #plea negotiations
This week’s top case deals with a similar fact application. For great general reference on the law of evidence, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
MODERN CRIMINAL EVIDENCE
By Matthew Gourlay, Brock Jones, Renee Pomerance, Glen Crisp & Jill D. Makepeace
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R v Blackhorse, 2023 ABPC 41
[February 15, 2023] Similar Fact Application: for Narrative and Animus [Judge A.A. Fradsham]
AUTHOR’S NOTE: Sometimes the lure of leading bad character evidence can be too much for the Crown. Here, the prosecution threw every questionable use of similar fact evidence in the book at the defence. The case is an excellent short example of how the courts should deal with these types of applications. Ultimately, the prejudicial value of this evidence is immense, even with a judge alone trial. Narrative is one of the most misused Crown reasons to explain the admission of normally inadmissible evidence. This case reminds us that narrative admissibility requires the evidence to be capable of connecting two events within the actual facts being prosecuted. Prior events cannot be narrative. Also, the accused’s animus is often irrelevant. Mens rea of almost all offences does not require malice, just an intent to do the act. Keep this case in your back pocket.
Introduction
[1] Mr. Blackhorse is charged with four offences alleged to have been committed by him on June 12, 2022:
1. Attempted murder of Kimberly Louison.
2. Overcoming resistance by choking Kimberly Louison so as to enable himself to commit an indictable offence.
3. Breach of an undertaking by communicating with Kimberly Louison.
4. Breach of an undertaking by attending the residence of Kimberly Louison.
[3] The Crown, by way of pre-trial motion, has brought an application “for the admission of extrinsic discreditable conduct” (otherwise known as “similar fact evidence”) at the trial of the noted charges. The application is opposed by Mr. Blackhorse.
The Application
[4] The Crown’s reason for contending that the evidence is admissible is set out in its written Notice of Application:
The Application to admit this extrinsic conduct is predicated on three [3] main points: (a) that the evidence is part of the narrative of relevant events; (b) the evidence demonstrates the “animus” Blackhorse towards Louison and exposes his intentions to do the very thing that Blackhorse is alleged to have done — attempting to kill her; (c) the evidence contextualizes and explains the behaviour of Louison vis-a-vis Blackhorse, which from time to time veered between reporting his violence against her to actively attempting to protect him from the authorities.
[5] During the course of oral submissions, there was an indication that the Crown might also be relying upon the proposed evidence to help prove identity.
[6] The discreditable conduct evidence sought to be admitted by the Crown, all of which involves alleged events involving the accused and Kimberly Louison, consists of the following:
1. An alleged physical confrontation between the accused and Louison on July 11, 2021, which resulted in the accused being charged with assault. On October 6, 2021, the Crown, relying on section 579(1) of the Criminal Code, directed a stay of this prosecution.
2. An alleged incident between the accused and Louison on August 10, 2021, during which it is alleged that the accused stole vehicle keys from Louison, and uttered death threats against Louison (the allegation being that the accused said he would purchase a gun and shoot her). As a result of these allegations, the accused was charged with two counts of failing to comply with a release order and one count of uttering threats. On October 6, 2021, the Crown entered a stay of this prosecution.
3. An alleged incident between the accused and Louison on September 10, 2021, during which it is alleged the accused attended Louison’s residence and threatened to burn down the house with Louison and her three children in it. Those allegations resulted in the accused being charged with two counts of breaching a Release Order, one count of uttering threats against Louison, and one count of uttering threats against the three children. In a letter dated September 14, 2021, Louison recanted the allegations made to the police. On October 6, 2021, the Crown entered a stay of this prosecution.
4. An allegation that in November, 2021, the accused head-butted Louison in her face, causing a bruised and swollen nose. This allegation resulted in the accused being charged with assault. The matter was set for trial on August 11, 2022. On that date, the Crown, with no objection from the accused, withdrew the charge.
5. An allegation that on March 27, 2022, the accused assaulted Louison, threatened to stab her and light her house on fire, and took her motor vehicle without consent. Those allegations resulted in the accused being charged with assaulting Louison; uttering threats to damage property belonging to Louison (a house); uttering threats to cause death or bodily harm to Louison; and taking without consent a motor vehicle belonging to Louison. Those charges were set for trial on September 22, 2022 and were withdrawn by the Crown on that day (no objection from the accused).
[7] Evidence is admissible “if it is relevant to a live, material issue in the case, its admission does not offend any other exclusionary rule of evidence, and its probative value exceeds its prejudicial effects”: R. v. Calnen 2019 SCC 6, at paragraph 107. The Court went on to explain relevance and materiality:
[108] Relevance involves an inquiry into the logical relationship between the proposed evidence and the fact that it is tendered to establish. The threshold is not high and evidence is relevant if it has “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence”: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 36, quoting D. M. Paciocco and L. Stuesser, The Law of Evidence (5th ed. 2008), at p. 31. In other words, the question is whether a piece of evidence makes a fact more or less likely to be true. Relevance does not require a “minimum probative value”: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 38. As the admissibility of after-the-fact conduct evidence is, “[a]t its heart”, one of relevance, determining the relevance of any piece of after-the-fact conduct evidence is necessarily a case-by-case, “fact-driven exercise”: White (2011), at paras. 22 and 42; see also R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 26.
[109] To establish materiality, the evidence must be relevant to a live issue; if it is not relevant to a live issue, it must be excluded or the jury should be instructed that the evidence is of no probative value: see White (2011), at para. 36.
[110] Trial judges retain the general discretion to exclude relevant evidence when its potential prejudice exceeds its probative force: see White (2011), at para. 31.…
[8] A very helpful summary of the law relating to the admission of evidence of prior discreditable conduct, particularly in the context of domestic violence allegations, is found in R. v. Z.W.C. 2021 ONCA 116. In that decision, Chief Justice Strathy said:
2. “The starting point…is that evidence of the accused’s uncharged prior discreditable conduct is presumptively inadmissible. This is due to the exclusionary rule against evidence of general propensity, disposition, or bad character…Evidence of general propensity, disposition, or bad character is inadmissible if it only goes to establishing that the accused is the type of person likely to have committed the offence(s) in question….Such evidence is also generally inadmissible when it is tendered to establish character, as circumstantial proof of the accused’s conduct….” (paragraph 96)
3. “This rule of exclusion does, however, yield on ‘exceptional’ occasions….Evidence of uncharged prior discreditable conduct may be admitted if it is relevant, material, and the Crown establishes, on the balance of probabilities, that its probative value outweighs its prejudicial effect….” (paragraph 97)
4. “The assessment of the probative value of the evidence requires the trial judge to consider: (a) the strength of the evidence that the extrinsic acts in question occurred; (b) the connection between the accused and the similar acts, and the extent to which the proposed evidence supports the inference the Crown seeks to make (sometimes referred to as the ‘connectedness’ between the similar act evidence and the ‘questions in issue’); and (c) the materiality of the evidence – that is, the extent to which the matters the evidence tends to prove are live issues in the proceeding….” (paragraph 98)
5. “…The Crown must be prepared to establish exactly what inferences it will be asking the jury to draw from the evidence, and the extent to which the evidence tends to permit those inferences.” (paragraph 99)
6. “Having assessed the probative value of the evidence, and the issues to which it is relevant, the trial judge must examine the prejudicial effect of the proffered evidence and balance it against its probative value. It is wellestablished that “prejudice” in this context comes in two forms: so-called ‘moral prejudice’ and ‘reasoning prejudice’.” (paragraph 101)
7. “Moral prejudice refers to the risk that the jury may convict the accused on the basis of ‘bad personhood’….That is, not on the basis of the evidence, but on the basis that the accused is a bad person who is likely to have committed the offences with which they are charged. There is a related concern that the jury may punish the accused for their ‘prior bad acts’ as revealed in the evidence of the uncharged prior discreditable conduct….” (paragraph 102)
8. “Reasoning prejudice, in contrast, diverts the jury from its task, and describes the risk that the jury will give the evidence more weight than is logically justified…Reasoning prejudice may include the following:
— The jury becomes confused by evidence extrinsic to the charges on the indictment. Specifically, the jury ‘may become confused by the multiplicity of incidents, and become distracted by the cumulative force of so many allegations from their task of deciding carefully each charge one by one’: R. v. Shearing, [2002] 3 S.C.R. 33, [2002] S.C.J. No. 59, 2002 SCC 58, at para. 68; [page154] — The jury is distracted from the actual charges, and confused about which evidence relates to the crime charged and which evidence relates to the “similar fact” incidents: Handy, at para. 100;
— The evidence awakens in the jury sentiments of revulsion and condemnation that deflect them from “the rational, dispassionate analysis upon which the criminal process should rest”: Calnen, at paras. 176, 180, per Martin J. (dissenting in part, but not on this point);
— The accused cannot properly respond to the extrinsic evidence due to the passage of time, surprise, and/or the collateral nature of the inquiry: Paciocco, at p. 70; and
— Trial time is consumed by unduly focusing on whether the similar acts occurred: Handy, at paras. 83, 144. See also R. v. Grant, [2015] 1 S.C.R. 475, [2015] S.C.J. No. 9, 2015 SCC 9, at para. 39.” (paragraph 103)
9. “In assessing the prejudicial effect of the evidence, the trial judge may consider a variety of factors, including: (a) how discreditable the conduct is — the more inflammatory and egregious the conduct, the greater the likelihood of moral prejudice: Lo, at para. 114, citing Handy, at paras. 83, 100 and 140; (b) the extent to which the evidence may support an inference of guilt based solely on bad character; (c) the extent to which the evidence may confuse the jury; and (d) the ability of the accused to respond to the evidence….” (paragraph 104)
10. “After considering the prejudicial effect of the evidence, the trial judge is required to engage in the familiar task of balancing the prejudicial effect against the probative value.” (paragraph 105)
11. “…evidence of uncharged prior discreditable conduct has frequently been admitted in domestic violence cases to describe the nature of the parties’ relationship, sometimes referred to as ‘context’ or ‘background.’ It is on this basis that the evidence is said to have probative value.” (paragraph 106)
12. “Evidence of uncharged prior discreditable conduct has also been used to establish ‘animus’, which may be relevant to both the actus reus and the mens rea of the offence(s).” (paragraph 107)
13. “…evidence of uncharged disreputable conduct has often been received in prosecutions alleging assaultive behaviour in a domestic relationship, including charges of sexual assault. Among the issues upon which this evidence has been admitted are these:
i. as part of the narrative of relevant events;
ii. to provide context for other evidence;
iii. to facilitate understanding of the nature of the relationship between the principals;
iv. to demonstrate motive or animus on the part of the accused for committing the offences;
v. to explain the failure of the complainant to leave the relationship or to report the abuse earlier; and
vi. to rebut a claim of fabrication.” (paragraph 108)
14. “There may be situations where, having assessed the prejudicial effect of the proposed evidence, the trial judge determines that the evidence is so prejudicial that it must be excluded in its entirety. If, however, the trial judge determines that the probative value of the evidence outweighs its prejudicial effect, then the trial judge is required to take measures to minimize the prejudicial effect of the evidence and to prevent its misuse. In addition to a limiting instruction, there are several options.” (paragraph 111)
15. “The trial judge does not have to admit all the evidence tendered by the Crown. As the trial judge here noted, one “must consider whether the issue to be proven by the evidence can be established by evidence of a lesser prejudicial nature”: see Handy, at para. 83. The trial judge may thus limit the volume and extent of evidence that the Crown is permitted to adduce.” (paragraph 112)
[9] In the case at bar, the Crown submitted that the evidence of prior discreditable conduct “is part of the narrative of the relevant events”. Narrative evidence is admissible to allow the trier of fact to understand the evidence of the events forming the foundation of the charge before the court. The proposed evidence relates to events alleged to have occurred months prior to the events alleged in the charges at bar. They do not “fill in chronological gaps” which would otherwise make difficult understanding the evidence describing the events forming the substance of the charges before the Court (see: R. v. Taweel 2015 NSCA 107). [PJM Emphasis]
[10] Further, I am mindful of the apt warning found in Justice Veldhuis’s decision in R. v. Stauth 2021 ABCA 88, at paragraph 35:
[35] Second, I have concerns about the cavalier way that narrative or hearsay evidence was lead by the Crown and appeared to be accepted by the defence and trial judge without much consideration. I echo the warning given by Christopher Nowlin in his article “Narrative Evidence: A Wolf in Sheep’s Clothing, Part I” (2006) 51 CLQ 238 about narrative evidence being used inappropriately:
There is an evidentiary wolf running loose through Canadian criminal courts, disguised as a harmless, storytelling sheep. Lawyers recognize the wily guest simply as “narrative”, or “context”, or “background” evidence — evidence tendered to make sense of other evidence, to put other evidence in its proper perspective, or to fill gaps in the Crown’s case. It slips in easily through the open doors of a policy that permits into evidence “everything logically probative of some fact in issue”,3 unless such evidence poses too real a risk to trial fairness or some other recognized societal value. Not long ago the Alberta Court of Appeal remarked that
the past decade has witnessed widening acceptance of evidence that was once questioned as mere proof of a criminal disposition and a propensity to commit like offences. Today its use as “background of the circumstances in which the assault occurred” or “narrative” material gains more and more appellate approval.
Sometimes narrative evidence enters courtrooms by way of a rule of evidence, other times by way of an exception to a rule. Sometimes it takes the form of statements, including those commonly known as confessions. Other times it takes the form of physical acts, even those known as similar acts, or similar facts. Whatever form narrative evidence takes, however, it is difficult to determine its precise origin in legal principle. This is a real problem because narrative evidence is often highly prejudicial and not especially probative or even material. And its reach appears to be getting longer. Paciocco and Steusser recently observed, “The idea that evidence can be admitted because it forms part of the ‘narrative’ or part of the story is a potentially dangerous one. It has been used, sometimes successfully, as a way to get otherwise inadmissible evidence before the trier of fact.” [PJM Emphasis]
[13] Both R. v. S.B., supra, and R. v. Ryback, supra, dealt with charges of criminal harassment, amongst other charges. As Hill, J. said in relation to the matter before him:
“Such evidence in turn may assist the jury in considering the credibility of the complainant’s account of events in the sense of explaining her lack of desire for reconciliation, her fear for her safety in light of the accused’s alleged stalking and harassment actions, the lack of any ‘innocent association’ context for [the accused’s] presence in the complainant’s home…and the complainant’s actions in not reporting the harassment and in not accessing the phone while the accused was in the house or fleeing from the premises….”
[14] Accordingly, past interactions between an accused and a complainant might be relevant when it is germane whether the complainant was fearful at the time of the alleged commission of the offence which is before the court for trial (whether the previous events “would have affected any reasonable person in her perception of the [accused’s] conduct [after the prior alleged events]”). In other words, do the alleged incidents of prior discreditable conduct assist the Court in understanding the complainant’s reaction or state of mind at the time when it is alleged that the events occurred which form the subject matter of the charges currently before the Court for trial?
[15] In my view, the complainant’s reaction or state of mind is not material to a charge of attempted murder or overcoming resistance by choking.
[16] The Crown submitted that the alleged incidents of prior discreditable conduct (the proposed evidence) demonstrates the “animus” of the accused toward the complainant, and “exposes his intentions to do the very thing that Blackhorse is alleged to have done—attempting to kill her”. I agree that if the proposed evidence is accepted as fact, then it may constitute evidence of “animus”.
[18] The utility of the proposed evidence in addressing both the “animus” issue and the “behaviour of the complainant” issue is, in large part, determined by the strength of the proposed evidence. What is the prospect of the proposed evidence being found, on a balance of probabilities, to be fact?
[19] In R. v. L.B. (1997) 116 C.C.C. (3d) 481 (Ont. C. A.), leave to appeal refused, [1997] S.C.CA. No. 524, Justice Charron, speaking for the Court, discussed “the strength of the evidence” factor in the admissibility analysis. She said at paragraphs 25-26:
25 The extent to which the discreditable conduct can be proven has a direct bearing on its probative value. In cases where the accused denies his or her involvement in the prior acts, the issue of proof may be important to the inquiry into its probative value. As seen earlier, this factor will be determinative of the issue in cases where the proposed evidence is so weak as to be incapable of supporting any rational inference. In such cases, the threshold test set out in Sweitzer will not have been met and the inquiry will have ended. Once the threshold is met, the strength of the proposed evidence relates to its probative value. The more compelling the proof, the greater its probative value will be.
26 …In all cases, the strength of the evidence of discreditable conduct is one factor to be taken into account in the overall assessment of its probative value as it compares to its prejudicial effect.
[20] In R. v. Bent 2016 ONCA 651, the Court gave this guidance on assessing the “strength of the evidence”, and said, at paragraph 44:
[44] Fourth , the court must consider the strength of the evidence that the similar acts occurred. S. Casey Hill, David M. Tanovich and Louis P. Srezos, the authors of McWilliams’ Canadian Criminal Evidence, 5th ed., looseleaf (Toronto: Canada Law Book, 2013) suggest at p. 10-8 that under this inquiry the court should consider the following questions:
• have the allegations been admitted in prior proceedings?
• are the allegations the subject matter of outstanding charges?
• by what method of proof are the acts to be proved?
• can the trier of fact fairly assess the evidence in the context of the trial without undue distraction?
• will the defence be able to fairly respond to the allegations in the context of the prosecution?
[21] In the case at bar, the proposed evidence formed the basis of charges laid against the accused. In each case, he denied the allegations by way of pleading “not guilty”. In each case, the Crown either withdrew the charges or entered stays of proceedings. The charges stayed by the Crown have not been reactivated pursuant to section 579(2). The only reasonable inference available on the material before me is that the Crown formed the view that the prosecution of each of those allegations against the accused ought not to continue because there was no reasonable likelihood of conviction in relation to any of them. That reasonable inference speaks directly to the weakness of the very evidence which the Crown now seeks to make part of this trial. The proposed evidence was so weak that the Crown chose to halt each of prosecutions which relied upon the evidence. Evidence which lacks any real strength has little, if any, probative value.
[23] In relation to the events alleged to have occurred prior to the complainant’s recanting letter of September 14, 2021, the Crown’s submission becomes this: hearing evidence of the occurrence of the prior discreditable conduct is necessary to understand why the complainant said that the prior discreditable conduct did not occur. In other words, the Crown is requesting that it be allowed to prove, through the alleged prior discreditable conduct, why no weight should be given to the complainant’s statements that those very alleged acts never occurred.
[24] In essence, the Crown invited the Court to follow this path of reasoning to arrive at the conclusion that the proposed evidence has strength and is admissible: (1) in spite of the complainant having recanted the proposed evidence of abuse, accept the proposed evidence of abuse as true; (2) use the previously recanted evidence of abuse, which is now accepted to be true, as the basis for concluding that the previous recantation of the evidence of abuse was false; and (3) on the basis of the new conclusion that the previous recantation of the proposed evidence of abuse was false, now conclude that the proposed evidence of abuse is true. The Crown is inviting me to engage in circular reasoning.
[25] The alleged prior discreditable conduct sought to be brought into the case at bar was conduct which formed the subject matter of its own charges against the accused. If the Crown wanted to persuade a Court that it ought not to give any weight to the complainant’s acts of recantation, then such efforts should have been made in the very proceedings involving those alleged acts of discreditable conduct. That is not what happened here. Rather, the Crown withdrew or stayed the charges.
[26] I conclude that in the case at bar the probative value of the proposed evidence is very minimal. [PJM Emphasis]
[28] In the case at bar, the prejudicial effect of the proposed evidence is very significant. While I can caution myself against both moral and reasoning prejudice, the admission of the proposed evidence would effectively convert this trial from one addressing the alleged offences said to have occurred on June 12, 2022, to a trial addressing the alleged offences said to have occurred on five separate occasions over a period of months, all of which formed the subject matter of previously laid separate charges against Mr. Blackhorse, all of which are, and have been since they were first made, contested, and the prosecution of which the Crown did not pursue. There is an overwhelming dangerous potential for this trial to become an unfocused, unwieldy, time-consuming odyssey.
[29] The prejudicial effect of allowing the Crown to call the proposed evidence of alleged prior discreditable conduct outweighs the very minimal probative value of the proposed evidence.
[30] The Crown’s application is dismissed.
R v Atwell, 2023 NSSC 63
[February 16, 2023] [Justice Gail. L. Gatchalian]
AUTHOR’S NOTE: Disclosure vetting by the Crown is an area of criminal litigation that receives probably less attention than it deserves. In many places and on many files, the prosecutor’s office uses non-lawyer staff to vet information out of disclosure sent to the defence. This vetting is often not looked at by prosecutors until defence actually brings an application. More lawyers should consider bringing these applications before trial. This case is an excellent example of how the vetting of “personal information” can cross the line into information that should have been disclosed in the first place even where the vetting received a significant amount of attention at the Crown office.
[1] …At the hearing of that Application on October 27, 2022, counsel for Mr. Dennis clarified that he was seeking a new copy of disclosure of the investigation file without redactions made on the basis of “personal information.” He also challenged redactions for which there was no accompanying explanation…
[2] On October 27, 2022, I released a decision dismissing the Application: 2022 NSSC 304.
[5] Mr. Dennis filed this second Application on January 30, 2023, asking that the I reconsider my October 27, 2022 decision, and make an order pursuant to s.7 of the Charter requiring the Crown to provide him with an unredacted copy of the disclosure. At the hearing, counsel for Mr. Dennis refined his position to seek the following:
- an order requiring the Crown to deliver to him a new disclosure package without redactions made on the basis of “personal information;”
- an order requiring the Crown to take a second look at redactions made on the basis of privilege, and to confirm that privilege was properly asserted in all instances; and
- an order requiring the Crown to explain the redactions made that had no accompanying explanation for the redactions.
[8] The Crown states that Mr. Dennis’ application should be dismissed because it is a generalized complaint about the Crown’s vetting process that is vague and overbroad…
Reconsideration
[10] I accept the request of Mr. Dennis that I reconsider my October 27, 2022 decision: see The Russian Federation v. Luxtona Limited, 2021 ONSC 4604 at paras.14 and 16 and R. v. Chaisson, 2022 NSSC 369 at paras.14-19. Upon review, I am satisfied that I erred in placing the onus on Mr. Dennis to establish that there is a reasonable possibility that the withholding of the redacted information will impair his right to make full answer and defence. It is in the interests of justice that I reconsider, and reverse, my decision.
Onus Is On The Crown
[11] Where, as here, the Crown withholds any information that was gathered during the investigation, it is the Crown that must demonstrate that such information is completely irrelevant or legally privileged, or that there is a concern for the security or safety of witnesses: Stinchcombe, supra at para.21; and see R. v. J.J.W., 2008 NSPC 10 at para.18 and R. v. Van Duzen, 2006 ONCJ 429 at para.103.
[12] It is presumed that the material in the possession of the Crown is relevant to Mr. Dennis’ case. Otherwise, the Crown would not have obtained possession of it. It is also presumed that this material will likely comprise the case against Mr. Dennis. As a result, his interest in obtaining disclosure of all relevant material in the Crown’s possession for the purpose of making full answer and defence will, as a general rule, outweigh any residual privacy interest held by third parties in the material. This is why the onus is on the Crown to justify the non-disclosure of any material in its possession: R. v. McNeil, 2009 SCC 3 at para.20.
[13] It is “beyond controversy” that the accused does not have to establish a case for disclosure of the investigative file: R. v. Bottineau, 2005 CanLII 63780 (Ont SCJ) at para.48. See also R. v. Lalo, 2002 NSSC 40 at paras.18-21 and R. v. Chaplin, 1995 CanLII 126 (SCC) at para.25.
Personal Information
[15] The Crown has recently provided the defence with a “vetting log” that provides some limited explanation for the redactions, except for redactions made on the basis of privilege.
[16] The vetting log shows that the information redacted on the basis of “personal information” consisted primarily of dates of birth, phone numbers, and addresses, but also includes master license plate numbers, property identification numbers, and numbers used by police to identify individuals, as well as other personal information.
[17] The Crown did not rely on any security or safety concerns to justify the continued redaction of personal information in the investigation file.
[18] The Crown took the position that the following subcategories of information redacted on the basis of “personal information” are completely irrelevant: dates of birth, property identification numbers, master license plate numbers and internal police identification numbers for individuals (“FPS” and “APID” numbers).
[19] With respect to witness contact information, the Crown asserted that it had already provided that information to counsel for Mr. Dennis upon request in a separate document.
[20] The Crown also says that it would require a tremendous amount of resources to provide a new copy of disclosure to the defence that removes the redactions of personal information.
[21] Mr. Dennis states that dates of birth are relevant because it may be useful for defence counsel to know the age of a witness before cross-examining them, for example, whether the witness is a child, a young adult, or an older adult. Mr. Dennis states that the other identifying information may assist the defence in connecting information about witnesses.
[23] Moreover, Mr. Dennis says that he raised at the hearing of the first application the fact that he had only been provided with witness contact information for approximately 125 witnesses, when there are over 200 witnesses whose contact information has been redacted.
[25] I am not prepared to second-guess the assertion of Mr. Dennis that the information redacted on the basis of “personal information” may be useful to the defence, and that having that information unredacted in the disclosure package itself may be useful to the defence. I am satisfied that there is a reasonable possibility of the information being useful to Mr. Dennis in making full answer and defence. See R. v. Egger, [1993] 2 S.C.R. 451 at p.467 and R. v. Taillefer, 2003 SCC 70 at para.60. Mr. Dennis’ interest in having the information unredacted in the disclosure package itself is not, in my view, outweighed by the Crown’s concern about the resources that will be required to produce a new disclosure package.
Redactions with No Explanation
[29] Counsel for Mr. Dennis should ascertain whether the vetting log provides the explanation for the redactions that he found that had no accompanying explanation. If there remain unexplained redactions, he should bring them to the Crown’s attention at the earliest opportunity, and if the matter is not resolved, to the Court’s attention.
Undertaking
[31] At that point, the Crown said that it would have safety, security and privacy concerns because they were operating on the assumption that counsel for Mr. Dennis would sign an undertaking not to share witness contact information with Mr. Dennis, and that counsel for Mr. Dennis had not made a specific request in this Application that the information be shared with his client.
[33] The Crown did not, at the first hearing or at this reconsideration hearing, identify any specific safety, security or privacy concerns about any particular witness or witnesses.
[34] The Crown relied on three cases to justify restricting disclosure of personal information to defence counsel. Those cases are not supportive of the Crown’s position. In R. v. Hitchings, [2017] S.J. No.291, the Court stated that the Crown had not provided any indication that there were unique security or privacy concerns for any of the witnesses. Nonetheless, the Court subjected defence counsel to an undertaking not to provide the disclosed witness contact information to the accused without the consent of the Crown or order of the Court: paras.24-25. There was no analysis undertaken or case law cited by the Court to support the imposition of the undertaking. In R. v. Smith-Tsetta, [2021] N.W.T.J. No.34, defence counsel was not asking to share witness contact information with the accused, and had already provided an undertaking not to do so: paras.8, 13, 23 and 25. In R. v. Downey, 2018 ABQB 915, defence counsel sought witness contact information and offered to give its undertaking not to release the information to the accused: para.6.
[35] The Crown has not satisfied me that defence counsel should be prohibited from sharing the disclosed personal information with Mr. Dennis.
Conclusion
[36] I am satisfied that Mr. Dennis’ right to make full answer and defence entitles him to a copy of the disclosure package without redactions made on the basis of “personal information.” The Crown shall provide Mr. Dennis with a new disclosure package without redactions made on the basis of “personal information” without delay.
[37] While I appreciate that this will take some time given the volume of disclosure and the number of redactions, the month-long trial in this matter is scheduled to begin in just over three months. The Crown must make every reasonable effort to provide the ordered disclosure to Mr. Dennis as soon as possible.
[39] Mr. Dennis is not to share the information in the ordered disclosure package with anyone, and it is to be used solely for the purpose of preparing his defence
R v MG, 2023 ABPC 38
[February 13, 2023] Charter s. 11(b): Time for Plea Bargaining [Judge B.L. Shaw]
AUTHOR’S NOTE: Most 11(b) cases are so focused on the minutiae of their facts that it becomes very difficult to pull any general principles from them. This case is an exception in one respect: time for ECR (Early Case Resolution) or plea bargaining even where no resolution occurs. In the grand scheme of 11(b), it makes perfect sense to incentivise discussions between counsel that might lead to an end of the case and free up valuable trial time for other matters. This case reminds us that once the defence receives an ECR offer, the lawyer is obligated to forward the offer to their client. Even though the defence never intended to plead guilty, there are many possible ECR offers which could not result in a guilty plea (eg. peace bonds). On this basis, 15 days were determined to be not Defence Delay for the R v Jordan calculation.
Voir Dire Decision on Section 11(b) Charter Application
[2] The Applicant has applied for a judicial stay of proceedings on the basis that his right to be tried within a reasonable time has been violated. The Applicant relies on s. 11(b) of the Charter of Rights and Freedoms (Charter), which provides that “any person charged with an offence has the right…to be tried within a reasonable time”.
[4] It is the position of the Applicant (Defence) that the total delay will be approximately 21 months and 4 days at the conclusion of the currently scheduled trial dates. A total of 94 days above the Jordan presumptive ceiling as there is no time to subtract from the analysis for Defence delay. Defence did not waive delay; no delay was solely the cause of the Defence and there are no exceptional circumstances. Defence made steps to move the matter forward to trial and provided reasonable availability for trial dates to be set.
Analysis
[7] The steps of the Jordan analysis (R v Jordan, 2016 SCC 27) are set out in R v Mamouni, 2017 ABCA 347 at para 54; see also R v Coulter, 2016 ONCA 704 at paras 34 to 59. For the purposes of this application, the main steps of the analysis are as follows:
(i) calculate the total time that has lapsed from the sworn date of the first information to the conclusion of trial;
(ii) determine whether any period of delay is caused by “defence delay”, and subtract that from the total delay; and
(iii) compare the total delay to the “presumptive ceiling” of 18 months (547 days) for a Provincial Court Trial.
Step One – Calculate total time lapse
[8] May 17, 2021 to February 23, 2023 – 648 days, the total time from when the information was sworn until the trial is expected to conclude.
Step Two – Subtract any “Defence delay”
[10] Where the Court and the Crown are ready to proceed but the Defence is not, the resulting delay will be attributable to the Defence (Jordan, para 64). It is important to note that the cases reference the unavailability of Defence when the Crown and the Court are otherwise prepared to proceed. In this case the Crown was prepared to proceed to trial on two dates ranges within the 18 months: July 18-28, 2022, and September 19-30, 2022, a total of 19 weekdays. Defence did not agree with the Crown material suggesting both the Crown and Court had availability during that time. The Crown conceded those dates were only confirmed to be Crown availability. However, through Crown submissions, accepted by Defence, the Case Management Office confirmed there was general Court availability for multiday matters from April to September of 2022.
[11] The Crown argued the Court could infer that there was both Crown and Court availability, which overlapped during the 19 weekdays Crown had availability for trial. A multiday trial is two or more days. Due to the Crown time estimate of four days and an additional Defence half day this trial was noted to require five days. There is no evidence that a consecutive five days of Court time were available from April to September of 2022 let alone during the 19 weekdays the Crown had available. There is also no evidence that there were even 5 non-consecutive days available during the 19 weekdays the Crown had availability in July and September of 2022.
[14] In this case, who bears the onus regarding Defence caused delay? Based on the evidence led in the voir dire, is Defence-caused delay a “live issue”. In other words, is evidence that the Crown was available July 18-28, 2022, and September 19-30, 2022, and that there was general Court availability for multiday matters from April to September of 2022 sufficient to shift the onus back to the Defence to show whether the delay was in fact caused by Defence and if so, what effect it should have on the total timeline.
[15] The British Colombia Provincial Court in R v De Boer, 2021 BCPC 10 found that the Accused must provide the Court “with evidence upon which [the Court] can undertake step one in Jordan: calculation of total delay, minus defence delay…before advancing further through the Jordan framework…” (para 29). The Court concluded that where evidence of when the Crown and Court are first available is not secured, Defence risks their application being dismissed for lack of evidence (para 50). Which the Court did in De Boer.
[17] Defence has not met their evidentiary onusfor the Court to determine Defence delay. There should not be a benefit or incentive where necessary evidence for a Charter application is not secured. It was apparent delay was an issue, but neither Crown nor Defence took steps to secure information about the Court availability. Again, when Defence delay is a live issue the onus is on Defence to show the Applicant’s right under s. 11(b) of the Charter has been breached.
[18] How then should the time from October 1, 2022 (the day after the last date the Crown was available) to February 23, 2023 (the last day of the currently scheduled trial), a total of 146 days be treated? Defence has not shown on a balance of probabilities that the delay was Crown or institutional because they were not able to provide evidence of the Court availability or unavailability.
[19] However, even where Defence counsel is found to be unavailable where the Crown and Court had available time, all of the delay until the next available date should not necessarily be characterized as Defence delay (see R v Hanan, 2022 ONCA 229, para 56). In their decision in Hanan the Ontario Court of Appeal relied on R v Boulanger, 2022 SCC 2, where the Supreme Court qualified that “in some cases, the circumstances may justify apportioning responsibility for delay among [the participants in the criminal justice system] rather than attributing the entire delay to the defence.” In assessing whether the delay should be considered Defence delay, the court must take a contextual approach that considers whether the Defence is the sole or direct cause of the delay (Hanan, para 59).
[20] Although Defence counsel is not required to hold themselves in a state of “perpetual availability”, section 11(b) “requires reasonable availability, flexibility and some level of cooperation” in setting trial dates: R v Ameerullah, 2019 ONSC 4537, at para 28.
…ghout the various Court app…
[22] The time when dates were offered to Defence in this case made a difference. On October 22, 2021, when Defence first tried to set the matter for trial they had availability 14 days from May 30 to June 30, 2022 and then were completely available from August 2022 onward (ie. they were available the September dates later offered by the Crown). By March of 2022 when the matter was set for trial, Defence availability had diminished, as would be expected and they were no longer available in September.
[23] The Crown has argued that Defence Counsel, who was aware there was an assigned Crown should have communicated to the assigned Crown that trial time estimates were not provided to the CMO. As noted in Cody, all participants in the criminal justice system, including the Defence, must take a proactive approach in order to prevent unnecessary delay by targeting its root causes (para 36).
[24] Defence Counsel did not contact the assigned Crown after October 18, 2021, until December of 2021 and found out the assigned Crown was away for the rest of the month. No evidence was presented on the content of that communication. The trial time estimate was provided to the CMO on January 17, 2022. It was the Crown’s position there was institutional delay up to January 17, 2022.
[25] The Crown argued that the Crown and Court were ready to set trial dates on January 17, 2022, February 1, 2022, February 16, 2022 and February 25, 2022 and that delay during that time should be attributed to Defence because the Applicant never intended to resolve his matter although he had requested an ECR.
[26] On February 16, 2022 the CMO advised Defence the assigned Crown was not available for 2022 or early 2023. On February 25, 2022 the CMO advised Defence the assigned Crown was not available for 4 days until May of 2023. Defence was ready to set trial dates and provided their availability to the CMO on numerous occasions beginning October 22, 2021. The only adjournment where the Defence did not appear to take steps to set the matter for trial after October 22, 2021 was on February 1, 2022 when they adjourned to February 16, 2022 to consider the Crown ECR offer.
[27] Although the Applicant may never have intended to plead guilty, there is a wide range of possible ECR offers, and once received Defence counsel must advise their client of the offer. These 15 days are not “Defence delay” for the purposes of s. 11(b) of the Charter.
[29] In this case, the position of Defence was clear. On February 25, 2022 Defence Counsel advised the Court and the Crown appearing that day that he had been trying to set the matter for trial and the assigned Crown was not available through to March 23, 2023 for a four-day stretch for trial. Defence advised he was going to make efforts to see if the assigned Crown could free up additional time or have the case reassigned. The Court granted the adjournment from February 25, 2022 to March 11, 2022 noting that the adjournment would be “at the feet of the Crown”. The Court made it “peremptory that the Crown provide reasonable dates” to Defence by then.
[32] Notwithstanding a lack of evidence on the voir dire not all of the delay from October 1, 2022 to February 23, 2023 should be calculated as Defence delay. Defence repeatedly provided reasonable availability while trying to set the matter for trial with multiple available 5 day periods under the Jordan presumptive ceiling. The assigned Crown due to other assignments and commitments was only able to offer 19 days. Defence took steps to alert the Court and Crown to the issue of delay, although it does not appear the information provided to the Court (through the CMO) always made it back to the assigned Crown. This matter was set for trial well beyond the 18-month presumptive ceiling. After that date, no earlier availability was canvassed until after the pre-trial conference in October of 2022 at which time dates were set in February of 2023. Given the history I find Defence to have been diligent and cooperative at all times in trying to set early trial dates. Therefore, of the 146 days between October 1, 2022 and February 23, 2023, I find that only half of the time (73 days) should be attributed to the Defence as Defence delay.
Step Three – Compare the total time lapse (less Defence delay) to the “presumptive ceiling”
[33] The “Defence delay” to subtract amounts to 73 days. There is a total of 575 days delay, less 547 days (the 18 month presumptive ceiling) leaving 28 days. The conclusion of the trial on February 23, 2023 will be 28 days over the presumptive ceiling set out in Jordan.
Conclusion
[34] The delay is presumptively unreasonable. The application is granted. The Applicant’s rights pursuant to s. 11(b) of the Charter to be tried without unreasonable delay have been breached and he is entitled to a remedy.
[35] In accordance with s. 24(1) of the Charter, I impose a stay of proceedings.
MODERN CRIMINAL EVIDENCE
By Matthew Gourlay, Brock Jones, Renee Pomerance, Glen Crisp & Jill D. Makepeace
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