This week’s top three summaries: R v Sitladeen, 2021 ONCA 303: racial #profiling test, R v KA, 2021 NUCA 6: #guilty plea withdrawal, and R v Horth, 2021 ONSC 3242: brown v dunn.
R v Sitladeen, 2021 ONCA 303
[May 10, 2021] Charter s.9: Racial Profiling Test [Reasons by K. Feldman J.A., E.E. Gillese J.A. concurring, B.W. Miller J.A. dissenting]
AUTHOR’S NOTE: While this case does not break new ground in Ontario because of the 2019 decision R v Dudhi, 2019 ONCA 665 (and perhaps some older authorities), it remains one to watch because the dissent by Miller J.A. may send this up one to the SCC placing racial profiling front and centre before the highest court in the country. At issue here was the Trial Judge’s error in focusing on whether the police officers were lying to restrict the applicability of racial profiling arguments under s.9. The case law establishes that subconscious biases will not be displayed in an overt way with “lying” by police officers. Officers may very-well be unaware that they are acting pursuant to preconceived notions and stereotypes. The racial profiling test does not require overt racism to succeed. This case is a good re-statement of principles although Dudhi remains the go-to decision as it makes plain that racial profiling (to any degree) will result in s.9 violations.
Overview
[1] The appellant is a Black man who was pulled over for suspected impaired driving, then wrongfully arrested for driving while suspended. When he was searched following the arrest, he was found with a loaded firearm. The appellant was convicted of possession of a firearm with ammunition and possession of a firearm contrary to a weapons prohibition. He appeals his convictions.
[2] The appellant’s position at trial and on this appeal is that the stop and the arrest were unlawful because they were tainted by racial profiling. Therefore, the firearm should have been excluded from evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms. The Crown agrees that if racial profiling played any part in the stop or the arrest, the evidence should be excluded.
[3] The primary issue on the appeal is whether the trial judge misapplied the test for racial profiling, and erred in law by requiring a finding that the police lied about the reasons for the stop and for the arrest.
Facts – the Stop
[6] The appellant was not speeding. However, PC Delmar observed the appellant’s car activate its right turn signal and enter the right turn lane, but not turn right. The car swerved back into the thru-lane without signalling, eventually reactivated the right turn signal, but again did not turn right. PC Delmar said he saw the vehicle swerve within its lane. He concluded that the driver might be impaired. In his testimony at trial, PC Delmar described the appellant’s driving as a marked departure from what he ordinarily saw on the roads. PC King corroborated PC Delmar’s account of the aborted right turn, but she said the right turn signal was never deactivated and she did not see the vehicle swerve within its lane.
[7] The officers pulled up beside the appellant, and as they continued to drive, shone the alley light from their vehicle into the driver’s side of the appellant’s vehicle. The officers saw that the appellant was a young Black man with a beard alone in the car. They then dropped back behind the appellant’s vehicle and activated their emergency lights directing him to stop. The officers said the appellant’s car touched the curb when he stopped, which he denied.
[8] At trial, the officers described their procedure as a “combination stop” that they commonly use. The purpose is to get a look at the driver and obtain information that could identify him before the driver knows he is being stopped, in case the driver takes off.
[9] … However, after the appellant served and filed his Charter challenge alleging racial profiling, the officers met with the Crown attorney (not Crown counsel on the appeal), and subsequently prepared will-say statements stating that they had made the decision to stop the appellant’s vehicle based on the appellant’s driving, before they performed the combination stop and saw the appellant.
[10] PC Delmar went to the driver’s side of the appellant’s vehicle and spoke to him while PC King went to the passenger side and looked into the vehicle. PC Delmar asked the appellant if he had been drinking and he answered no. There was no smell of alcohol, but PC Delmar noticed the smell of fresh marijuana. PC Delmar saw a pill bottle in the vehicle, which he took from the appellant and placed on the roof of the car along with the keys. He asked the appellant for his license, ownership and insurance, but the appellant could not produce any of the requested documents. Instead, he gave the officers the name, Donovan Sitladeen, which was not his name but his brother’s.
[11] When PC Delmar went back to his car to check the name in CPIC, a police database, he made a mistake in the spelling of “Sitladeen,” inputting “Sitaldeen” instead. He thus received results with a “partial score.” They revealed the possibility that Donovan Sitladeen was a suspended driver, subject to a weapons prohibition, known to be armed and dangerous and of interest to the Toronto Police. However, CPIC attached an accuracy score of 13/26 which indicated to PC Delmar that something was “off” regarding the identity of the driver. PC Delmar believed that he needed to confirm the appellant’s identity.
[12] PC King subsequently informed PC Delmar that the pill bottle had the name, Damaine Sitladeen. PC Delmar checked the new name in CPIC, but again with the incorrect spelling, “Sitaldeen.” The result left the officer “more confused” than before. The system would usually provide a photograph if there was information in the database, but no photograph was generated in either instance.
[13] In the meantime, another officer, PC Statham, arrived at the scene. Although PC Delmar did not have any further discussion with the appellant to ask about his identity, he decided that he was going to arrest the appellant for driving while suspended because he wasn’t able to confirm his identity. PC Statham agreed with that decision. PC Statham walked over to the car and asked the appellant about the status of his driver’s license and whether he had any unpaid fines. The appellant responded that his license was “good” and that there should be no unpaid fines.
[15] The appellant was reluctant to exit the car. When PC Delmar attempted to gain control of the appellant to handcuff him, there was a struggle which culminated in three officers taking the appellant to the ground, revealing that he had a gun in his waistband.
[16] The entire interaction between the appellant and police from when they observed him driving, to his arrest and search took ten minutes.
The Trial Decision
[17] The primary issue for trial was whether the stop, the arrest and/or the search of the appellant were tainted by racial profiling. If they were, it was agreed that the evidence found would be inadmissible. To address the issue, the trial judge had to state the correct test for racial profiling, and then weigh the evidence to determine whether it met the test.
[25] Having concluded that finding that the officer or officers were lying was a crucial element of the test for racial profiling, the trial judge went on to analyze the evidence through the lens of the credibility of the officers, in particular, PC Delmar and PC Statham.
Analysis: The Law of Racial Profiling (Charter s.9)
[43] In the seminal decision of this court on the issue of racial profiling, R. v Brown, the court established a number of principles regarding the operation and effect of racial profiling by police:
- The definition of racial profiling was adopted, at para. 7, from the decision of Rosenberg J.A. in R. v. Richards (1999), 1999 CanLII 1602 (ON CA), 26 C.R. (5th) 286 (Ont. C.A.). (quoted by the trial judge – see para. 20 above)
- The attitude that underlies racial profiling may be consciously or unconsciously held.[2] Consequently, a police officer need not be an overt racist to engage in conduct based on unconscious racial stereotyping: at para. 8.
- Crown counsel did not challenge the existence of the phenomenon of racial profiling by the police[3], and the court noted that that responsible position was supported by significant social science research: at para. 9.
- A police officer who stops a motorist based on their race or colour has no articulable cause for the stop: at para. 10.
- A racial profiling claim is rarely going to be proved by direct evidence. That would require an admission by the officer that racial stereotypes influenced the decision to stop the accused. Accordingly, if racial profiling is to be proven, it “must be done by inference drawn from circumstantial evidence”: at para. 44.
[44] Morden J.A. also discussed a method for proving racial profiling. He accepted, at para. 46, the suggestion put forth by accused’s counsel that in the context of the facts of the Brown case, an inference of racial profiling could be drawn where there was evidence “support[ing] the argument that the officer was not being truthful about the real reasons for the stop.” That method is the oft-quoted “correspondence test” from para. 45 of Brown, referred to by the trial judge:
[45] [W]here the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling.
[45] Morden J.A. accepted, at para. 45, that the proposed test was “a way in which racial profiling could be proven” (emphasis added). However, he did not say it was the only way to articulate and apply the test. He noted that it did not set the hurdle too low or too high, recognizing the potential for unfairness to honest police officers performing their duties in a professional and unbiased manner, and to victims of racial profiling by making it virtually impossible to receive s. 9 Charter protection.
[46] A few years later, in Peart, where Doherty J.A. rejected a claim of racial profiling, he discussed the Brown test and did not refer to “lying.”…
[47] Doherty J.A., at para. 133, accepted as accurately reflecting the essence of the decision in Brown, the following summary by the trial judge in Peart:
The court [in Brown] accepts that one way of proof of racial profiling is to compare the facts with the indicia of racial profiling to provide a basis for an inference that the officer is untruthful as to why the plaintiff was singled out. The record is then “capable of supporting” a finding of racial profiling.
[48] I highlight these two passages because they show that the focus of the correspondence test is not necessarily whether the circumstances demonstrate that the officer was lying, i.e. deliberately misleading the court, but rather, whether the circumstances give the court a basis to reject the officer’s evidence as untrue because they are indicative of racial profiling.
[49] This approach to the correspondence test is consistent with the concept of unconscious bias, where a person either does not recognize, or does not acknowledge his own bias.[4] An officer who has unconsciously allowed racial stereotypes to influence his decision to detain a racialized person may not believe he is being untruthful, and therefore may not be lying when he testifies that racial stereotypes played no role in the decision. Nevertheless, a trial judge is entitled to reject that evidence as untruthful, if the judge is satisfied, based on the circumstances consistent with racial profiling, that unconscious bias and racial profiling were factors in the decision.
[51] This court elaborated on that comment from Le in its recent decision on racial profiling in R. v. Dudhi, 2019 ONCA 665, 147 O.R. (3d) 546. There, one of the arresting officers referred to “brown drug dealers” in a radio transmission to police colleagues before he arrested the accused. The accused claimed that the arrest was tainted by racial profiling. The trial judge, however, rejected the claim on the basis that the arrest was justified on other grounds. This court held that the trial judge erred in so doing.
[52] In Brown, this court stated, at para. 11, that to prove a s. 9 breach, the applicant must show that there was no articulable cause for the stop and it was based on colour. Paciocco J.A. for this court in Dudhi explained, at paras. 62-63, that the statement does not mean that in such cases, the racial profiling component is irrelevant to the analysis. To the contrary, where an officer has objective grounds to detain an individual, those grounds cannot justify that decision if they are tainted by any degree of racial profiling:
[62] In my view, it is self-evident that a decision need not be motivated solely or even mainly on race or racial stereotypes to nevertheless be “based on” race or racial stereotypes. If illegitimate thinking about race or racial stereotypes factors into suspect selection or subject treatment, any pretence that the decision was reasonable is defeated. The decision will be contaminated by improper thinking and cannot satisfy the legal standards in place for suspect selection or subject treatment.
[63] Put simply, passages such as para. 11 of R. v. Brown, and para. 33 in Bombardier, are entirely consistent with the proposition accepted in Le and Peart. Where race or racial stereotypes are used to any degree in suspect selection or subject treatment, there will be no reasonable suspicion or reasonable grounds. The decision will amount to racial profiling.
[53] He concluded, at para. 64:
[64] This outcome is sensible, even leaving aside questions about what reasonableness entails. If objective considerations could negate improper subjective reliance on race or racial stereotypes, the subjective component of these legal standards would be ignored. That should not be. As was recently explained in R. v. Lai, 2019 ONCA 420, at paras. 29-30, the subjective component of the relevant legal standards plays an important role in ensuring that the police act for legitimate purposes and turn their minds to the legal authority they possess: see also R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 27. A body of law that permits officers to exercise their power when subjectively, their decisions are influenced by race or racial stereotypes, has little to commend it.
[54] To summarize, the case law from Brown onward recognizes that in cases where an officer had objective grounds to detain a person or stop a vehicle but was also subjectively motivated by racial stereotypes, the officer is unlikely to admit his bias. The matter becomes more complicated when the officer is unaware that he was influenced by race because of unconscious bias. The officer may not be consciously lying about his motivation, but that does not mean he did not unconsciously engage in racial profiling. It is the role of the trial judge in such cases to consider all the circumstances that led to an accused’s detention and/or arrest and to determine whether they correspond to the phenomenon of racial profiling, as understood in the social science literature, the reports of inquiries into race relations with police[5], and the case law. The trial judge can then decide whether those corresponding circumstances form a basis to infer that the record is capable of supporting a finding that the stop was based on racial profiling, contrary to the evidence of the officer. Ultimately, to reach a conclusion about racial profiling, the trial judge is not required to find that a police officer who testifies that race played no role in the decision to detain or arrest was lying.
Application: Did the Trial Judge Err Here?
[57] … In my view, it is clear from the reasons that the trial judge was focused on the need to find that the officers were lying in order to draw the conclusion that there was racial profiling. While he mentioned early in his reasons that racial profiling can be the result of subconscious attitudes, he did not specifically find that there was no unconscious racial profiling by PC Delmar. This is critical because by failing to address whether unconscious racial bias played any role in the officers’ decision to stop or to arrest the appellant, the trial judge eliminated the possibility that the stop or arrest may have been tainted by racial profiling, even if there was also another available basis to justify the police actions.
[58] I refer first to para. 26 of the reasons, where the trial judge stated: “Professor Tanovich’s version [of the correspondence test] eliminates an element that is crucial for judges intending to operationalize the test.” That element was that the circumstances must “provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention.”
[62] The major factual issue that all parties focused on at trial was the purpose and effect of the combination stop. From the appellant’s point of view, what occurred was that he was driving normally, not speeding, when a police car drove up beside him, shone a light on him, saw that he was a Black man, then fell back, and turned on its lights and siren to pull him over. The officers’ version was that they decided to stop the appellant before they saw him and knew he was Black. If that was true, then racial profiling was not a factor in the stop.
[63] While it was therefore important for the trial judge to assess the credibility and reliability of the officers’ evidence on the issue of when they decided to carry out the stop, by focusing on whether they were lying, the trial judge failed to also consider whether the circumstances that could correspond to racial profiling could support the inference that unconscious racial profiling played a role.
[64] For example, even if the police were concerned about the appellant’s driving before the combination stop, given all the circumstances, including a low-end rental vehicle driving in an area with clubs and bars late at night, did seeing that the appellant was a Black man have the effect of confirming a decision to stop his vehicle? 6 In respect of the arrest, was PC Delmar’s confusion and haste leading to an illegal arrest and search of a Black man a circumstance that corresponds with unconscious racial profiling?
[65] In my view, by concentrating on whether the officers were lying to the court when he assessed their impugned conduct and whether the circumstances could correspond to racial profiling, the trial judge improperly limited his analysis. While he acknowledged that racial bias is often subconscious and therefore hard to prove, his approach did not allow him to assess the reliability of the officers’ testimony about their own motivation in the context of all the circumstances.
Conclusion
[73] Because the trial judge failed to apply the correct test to determine whether the stop or the arrest of the appellant were tainted by racial profiling, a new trial must be ordered. On that basis, I would allow the appeal and order a new trial.
R v KA, 2021 NUCA 6
[May 7, 2021] Striking a Guilty Plea: Involuntary Due to Ongoing Harassment by the Complainant [Louise Charbonneau, Frederica Schutz, Kevin Feehan JJ.A.]
AUTHOR’S NOTE: Most guilty plea striking applications occur due to some mis-step by counsel in assisting their clients through the guilty plea process (the most frequent being a failure to advise of immigration consequences). Herein the lawyer did everything right, but the accused still pled guilty because of the continual harassment of himself and his girlfriend by the complainant. His personal belief that her conduct might stop if he pled guilty undermined the voluntariness of the plea.
Introduction and Background
[1] The appellant, Mr. K.A., appeals a sentencing judge’s dismissal of his application to withdraw his guilty pleas to charges of assault and sexual assault on his former common-law partner: R v K.A., 2020 NUCJ 18 (the “Decision”). He submitted before the sentencing judge and before this Court, that his pleas were not voluntary; on appeal he argues a miscarriage of justice pursuant to s 686(1)(a)(iii) of the Criminal Code.
[2] The appellant entered his guilty pleas with counsel on June 5, 2019, before a different trial judge. He maintains that at the time, he, his girlfriend, and his girlfriend’s daughter were being continuously harassed by the complainant, and he entered the pleas not because he was guilty, but because he was overwhelmed and wanted the harassment to stop. His affidavit and testimony to this effect, offered at the time of his application to withdraw the pleas, were ultimately rejected by the sentencing judge despite the Crown’s concession that the appellant’s evidence met the test for withdrawal of the pleas.
[3] While the appellant did not argue that he had been pressured by either his own counsel or the actions (or inaction) of the RCMP to plead guilty, the sentencing judge erroneously focused on the lack of evidence relating to same in dismissing the appellant’s application to strike his guilty pleas. Similarly, while the appellant never asserted his plea was uninformed or that he did not understand the consequences of pleading guilty, the sentencing judge also erroneously focused on these factors in finding the appellant’s pleas were voluntary. Further, the sentencing judge misapprehended and mischaracterized the appellant’s evidence as it related to the voluntariness of his pleas, while at the same time appearing to otherwise accept that the appellant’s pleas were due to his “misguided hope the [complainant’s] harassment would stop once the charges were dealt with”.
[6] On November 9, 2018, the complainant was charged with dangerous driving and uttering threats involving the appellant and his new girlfriend, and was released on an undertaking not to directly communicate with or go to the residence or place of work of either the appellant or his girlfriend….
Guilty Pleas
[8] On June 5, 2019, the appellant’s counsel advised the original trial judge that the “matter was resolved”. When the appellant then entered the courtroom, the counts in relation to the assault and sexual assault upon the complainant were read to the appellant, who stated “Guilty”. As is not unusual, no facts were read in or accepted by the judge. Neither counsel nor the court raised or canvassed s 606(1.1) of the Criminal Code. Rather, the matter was immediately adjourned to August 14, 2019 for the purpose of preparing a pre-sentence report.
Application to Withdraw the Pleas
[10] The appellant’s sentencing went over a number of times for various reasons, but on December 19, 2019, appellant’s then counsel advised the court, “Mr. K.A. would benefit from a second opinion”. The Crown agreed the matter ought to be adjourned, citing “the guilty plea and the voluntariness of the guilty plea”; the adjournment was granted. The sentencing judge seized himself with the matter, which was adjourned to January 10, 2020, then to January 27, 2020.
[11] On January 27, 2020, the appellant’s new counsel advised the sentencing judge that a formal application for withdrawal of the guilty pleas would be filed. In setting the matter over to February 19, 2020, the sentencing judge noted R v Wong, 2018 SCC 25, [2018] 1 SCR 696 [Wong] and advised counsel, “Mr. K.A.’s affidavit and any written material… it doesn’t have to be a literary masterpiece, it can be point form. . .”.
[12] The appellant’s February 6, 2020 affidavit provided:
1. On June 5th , 2019, I plead guilty to counts #1 and #3 in court file 08-18-686.
2. I was not under any pressure to plead from the Court, the Crown prosecutor or my counsel.
3. I was under considerable pressure from the complainant.
4. She harassed me and my common law spouse, [the girlfriend].
5. I plead guilty in the misplaced hope that the harassment would stop once the charges were dealt with. The harassment continued.
6. I am not guilty of the charges and I believe I have a good defence to those charges.
7. Attached to my affidavit, and marked as exhibit “A”, is an account set out by [the girlfriend] with copies of some of the communications from the complainant.
8. I was present for some of her account and I truly believe the portion I was not present for.
9. I wish to withdraw my guilty pleas and proceed to trial.
[13] The application included numerous pages of the complainant’s undertakings and recognizances, which set out the 12 offences allegedly committed by the complainant against the appellant and his girlfriend, as detailed in paragraph 6, above.
[14] … The girlfriend concluded her account of the harassment:
Throughout this past year and half, [the complainant] went from threats to actually damaging my vehicle (twice) to stalking/following me and my daughter. [The complainant] has recruited people to hate me and ridicule me online. She has put her kids in danger while she was driving her vehicle as they were in the car while some of the times. Her actions have gone from words to actions to stalking. I constantly fear for my safety and the safety of the public as she has no concern about people and her surroundings.
[15] The appellant testified at the application hearing, and stated he was not guilty of the offences but believed the only way the harassment would stop was if he pleaded guilty:
Q: Okay. And could you please explain to the court for which reason you pled guilty, sir?
A: The complainant has harassed – – constantly harassed me, my girlfriend, and my girlfriend’s daughter since the first charges have came and it never stopped. So I believed if I pled guilty, she would stop harassing, but she never stopped harassing me, my girlfriend, or her daughter.
When asked about the documents in his affidavit, he said:
A: These are evidence of the constant harassments that I, myself, my girlfriend. . . and her daughter were enduring throughout the months of – – once the complainant found out about my relationship with. . . my girlfriend, the complainant has constantly harassed us verbally, physically, and also on social media. So these are some of the evidence of our – – her constantly harassing us. And there are times when me and [my girlfriend] were afraid of our lives because the complainant has multiple times said that she would either kill me or my girlfriend.
[17] The appellant testified about the incidents with the complainant in which he had been personally involved, including the complainant’s attempt to cause a head -on collision, and her harassing and assaulting him at work. He stated that the RCMP had been called numerous times by him, his girlfriend and her daughter, but the complainant worked with the RCMP so he felt helpless and that their statements were falling on “deaf ears”. The appellant said he did not know about the recognizances the complainant was under until a month before in January 2020, and “every time we did try to call, the RCMP didn’t know what’s happening. . . So it seemed like there was no way we were going to have safety from [the complainant] with her constant harassments.” He continued:
Position of the Parties
[23] Notably, Crown counsel also submitted the application to strike the guilty pleas should be allowed, because the appellant “made out a case on the application for the plea to be withdrawn, just barely”. The Crown asked “the court to consider going back to first principles. . . about looking at the invalidity of the plea and considering what amounts to a miscarriage of justice. . . we could end up at the end of the day with a. . . man incarcerated on a – – the basis of a plea that he disavows. . . I think we have to look very carefully at the ultimate purpose which is whether there is a miscarriage of justice in all of the circumstances”.
Decision of the Sentencing Judge
[26] While the sentencing judge noted that s 606(1.1) was not canvassed at the time the pleas were entered, we note the sentencing judge (having seized himself of this matter) also did not canvass this provision in order to satisfy himself as to what facts, if any, the appellant had admitted or accepted sufficient to support the charges; nor did he ask counsel whether s 606(1.1) had been properly canvassed.
[28] In dismissing the application, the sentencing judge concluded:
That said, I have no reason to reject Mr. K.A.’s claim that he pleaded guilty on June 5, 2019, and I quote him, “in the misguided hope the complainant’s harassment would stop once the charges were dealt with”, unquote. However, this misguided hope only reinforces the inference that Mr. K.A. knew exactly what he was doing and that he made his pleas voluntarily. The alleged fact, which as I noted earlier [has] not been proven, that Mr. K.A. believed that the complainant continued her harassment despite the guilty pleas is irrelevant to what was in his mind on June 5th, 2019.
Standard of Review
[32] As provided in Wong at para 3, a guilty plea will be valid if it is voluntary, informed and unequivocal. All of these requirements must be met.
[33] An appeal from a conviction following a guilty plea may be launched on the basis that the plea is invalid and the conviction is the product of a miscarriage of justice. “Section 686(1)(a)(iii) authorizes appellate intervention on any ground there was a miscarriage of justice. . . it reaches all errors or events that result in a miscarriage of justice and extends to events that lead to actual unfairness as well as to the appearance of unfairness: Khan at para. 69”: R v Lam, 2020 BCCA 276 at para 78.
[34] The real prospect of a miscarriage of justice raises a question of law; further, such matters are of significance to the administration of justice and this Court has the jurisdiction to correct them if it is in the interests of justice: R v Bawkovy, 2009 ABCA 213 at para 12, 457 AR 64.
[35] As provided in R v Clayton, 2014 ABCA 27 at para 10 [Clayton]:The Supreme Court of Canada has emphasized that an appellate court can set aside a plea where there are “valid grounds” to do so: see R v Adgey, 1973 CanLII 37 (SCC), [1975] 2 SCR 426 at 431, 39 DLR (3d) 553. In Hoang, this Court explained that this refers to situations where “it appears that the appellant did not appreciate the nature of the charge, or the appellant did not intend to admit that he was guilty of it; or where upon the admitted facts, the appellant could not have been convicted of the offence charged”: at para 30.
[36] “The test to set aside a guilty plea is whether the person who entered the plea entered an unequivocal and informed guilty plea of his or her own volition”: R v Noskiye, 1996 ABCA 65 (CanLII), [1996] AJ No 141 at para 5, 181 AR 105. More specifically, “[a] plea may also be set aside as invalid where an accused leads evidence to establish that ‘his ability to make a conscious volitional choice was overcome’”: Clayton at para 11, citing R v Wiebe, 2012 BCCA 519 at para 57, 331 BCAC 208.
[37] While a guilty plea is presumptively voluntary, “[t]he key question is this: were any of the factors that the offender alleges influenced his or her decision to plead guilty, individually or collectively, of such a magnitude that they deprived the offender of the capacity to decide what was in his or her own best interests? This is a subjective inquiry”: R v Hunt, 2021 ABCA 49 at paras 43-44 [Hunt].
Analysis
[46] We now turn to the appellant’s two grounds of appeal, which can be dealt with together.
The sentencing judge misapprehended material aspects of the evidence relating to the voluntariness of the appellant’s pleas, leading to a miscarriage of justice
[47] In our view, the sentencing judge’s reasons reflect material errors.
[48] As Wong at para 23 makes clear, an accused need not show a viable defence to the charge in seeking to withdraw a guilty plea. Further, unlike the criteria expressed by the sentencing judge, an applicant is not required to show that the pleas were “not voluntary, that they were equivocal or ambiguous and that they were not informed” (emphasis added): Decision at para 12. Rather, an accused need only show one such criterion has been met; that is, the plea was not voluntary, not unequivocal, or not informed: Hunt at paras 41, 44-46. Put another way, an appeal court “may allow an offender to withdraw a guilty plea only if the offender satisfies the appeal court that the plea was involuntary or equivocal or the product of inadequate or insufficient information”: Huntat para 41, citing Wong at para 3.
[49] The appellant acknowledged his pleas were informed and unequivocal at the time they were made. His sole argument, and supporting evidence, was rooted in the assertion his pleas were not voluntary, his free will having been overborne by the constant and overwhelming nature of the complainant’s harassment of him and his family, and his desire for the harassment to stop.
[50] Moreover, the Crown conceded the application to strike the guilty pleas ought to be granted on the ground of lack of voluntariness. While the Crown concession obviously is not binding on the court, nevertheless it was a significant concession. Yet, the sentencing judge said little more than stating this was the Crown’s position when he summarized what happened on the application. In our view, when the prosecution itself is not asking that an accused be held to their guilty plea, more should be said by the judge hearing an application to strike the plea about why that concession did not carry weight.
[51] Further, while the sentencing judge ultimately found the appellant’s evidence to be “self-serving” and “lacking” in several ways, as recently stated in Hunt at para 44, many things may support an accused’s claim that his or her plea was not the product of free will, including some form of external or internal pressure, or something impairing an accused’s ability to focus and think rationally. This is a subjective inquiry concerning the accused’s state of mind at the time the pleas were entered. It is within this subjective analysis that the sentencing judge fell into error.
[52] A miscarriage of justice can result where a trial or sentencing judge is mistaken not only about the relevant test, but also the substance of material pieces of evidence, and those errors play an essential part in the reasoning process. More specifically, an accused whose conviction rests on findings tainted by error, has been denied a fair hearing: R v Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 CCC (3d) 193 at 221, 22 OR (3d) 514 (CA); R v Lohrer, 2004 SCC 80, at paras 1-2, [2004] 3 SCR 732.
[53] In this matter, the sentencing judge discounted the summary of the girlfriend’s experiences with the complainant as hearsay, and stated the defence should have called her as a witness. He also found that RCMP reports should have been provided, on the basis of finding the appellant made a “serious allegation” that the police did nothing in the face of the complainant’s harassment. In particular, the sentencing judge stated he would have at least expected an RCMP report of the complainant’s attempted head-on collision involving the appellant to have been tendered.
[54] These findings ignore the application and the appellant’s affidavit, which included copies of the complainant’s undertaking and recognizance in relation to 12 charges which pre-dated or closely followed the appellant’s plea, and included multiple offences of harassment, threats and assault with a weapon (a vehicle and coffee), all as alleged to have been committed against the appellant and his girlfriend. While the complainant’s undertaking and recognizance were not mentioned at all by the sentencing judge, this evidence supported the appellant’s claim that complaints to police had been made about the complainant’s harassment and his claim regarding his state of mind when he entered his pleas.
[55] Further, the complainant’s recognizance in relation to multiple charges was dated June 7, 2019, that is, two days after the appellant entered guilty pleas, a timeline which lends further support to the appellant’s evidence that on the day of his pleas, he believed the RCMP had not dealt with, nor charged, the complainant. For the sentencing judge to question or require the appellant to produce further police reports reflects a failure to assess this evidence and its relevance but, also, places an unreasonable burden of proof on the appellant, effectively elevating his onus to an objective one where corroboration or confirmatory evidence is required, rather than focusing on evidence relevant to the appellant’s own subjective beliefs.
[56] Similarly, the sentencing judge misapprehended the appellant’s evidence related to his original defence counsel. The appellant did not argue incompetence of counsel, or that his guilty plea was the product of pressure by his counsel; rather, he merely stated that when he “tried to explain what was happening it went to deaf ears”. Once again, that the sentencing judge stated this was a serious allegation that required the appellant to waive solicitor-client privilege and produce an affidavit by counsel, reflects a material misapprehension of the appellant’s evidence. Quite simply, the appellant did not need to produce an affidavit from his former counsel in order to assert that he subjectively believed at the time of his pleas he had no other choice in the face of the complainant’s continual harassment. To prove lack of voluntariness on the basis of his will being overborne, not by counsel but by something or someone else entirely, did not require an affidavit from his former counsel.
[57] In sum, the appellant was not required to prove his will was overborne by tendering evidence from his defence counsel or RCMP reports; nor was he required to call his girlfriend to give evidence. As he stated in his affidavit and oral evidence, even though he may not have been present for some of the incidents of harassment or assault on his girlfriend and her child, he believed they happened. The complainant’s undertaking and recognizance provided further evidence of his subjective belief. As an aside, however, given the appellant’s girlfriend was present, why the court did not simply invite counsel to have her provide viva vocetestimony, or at least warn counsel that the appellant was in great danger of having a volume of his evidence disregarded for hearsay reasons, is puzzling.
[58] In any event, we conclude there was ample evidence on the record to establish the appellant’s pleas were not voluntary at the time they were made, and that had the circumstances of the complainant’s harassment not been present, his plea would have been different. The sentencing judge’s findings to the contrary allow this Court to intervene on the basis that he did not properly or judicially exercise his discretion: Adgey at 430.
[59] Finally, in the day to day reality of our Canadian criminal justice system, the manner in which these pleas were taken and then adjourned for a pre-sentence report and sentencing hearing was not unusual; however, ultimately it fell to the sentencing judge to satisfy himself that admitted or accepted facts supported the charges. Pronouncing that the charges were “not complicated or convoluted” is not a lawful proxy for the court being satisfied under s 606(1.1) that an accused has accepted or admitted facts supporting the elements of the offences charged and to which guilty pleas have been given.
Conclusion
[60] The appeal is allowed, the guilty pleas are struck and the matter remitted for trial.
R v Horth, 2021 ONSC 3242
[May 3, 2021] Brown v Dunn cannot be used as a trap for the Defence: Remedies [Justice Walters]
AUTHOR’S NOTE: The rule in Brown v Dunn is meant to ensure trial fairness by giving Crown and sometimes Defence witnesses a fair opportunity to confront contrary fact suggestions. However, on occasion, the Crown attempts to use this rule to trap the Defence. Such attempts are most obvious when Crown reasonably should have objected at the time the Defendant testifies to contrary facts not put to a witness. The attempt to have the court place no weight on such evidence in closing submissions makes such an attempt at a trap transparent. Brown v Dunn provides for multiple remedies short of having the Court ignore potentially exculpatory evidence including recall of Crown witnesses. Mistakes or oversights by counsel can and do happen and where the evidence relates to an important concern, ignoring the evidence is the least desirable remedy if the goal is trial fairness.
Overview
[1] On July 26, 2019, the appellant was convicted of assault on his ex-girlfriend, contrary to section 266 of the Criminal Code of Canada. He was granted a suspended sentence.
[2] He appeals from conviction only.
[3] The appellant raises the following grounds of appeal:
1) The trial judge erred by not recalling the complainant for the purposes of remedying a breach of the Browne v. Dunn rule;
2) The Crown rendered the trial unfair by raising an untimely objection about the breach of the Browne v. Dunn rule;
[4] For the reasons which follow, I have accepted the appellant’s argument on grounds one and two. Accordingly, the conviction of the Honourable Justice Stone dated the 26th of July, 2019 is quashed and a new trial is ordered.
The Facts
[5] The facts for the most part are not contested and the respondent accepted those facts as set out in the appellant’s factum. The appellant and the complainant, Ms. Thorpe, were involved in a romantic relationship. Although the couple never lived together, Ms. Thorpe became pregnant with the child Brodie. Prior to the appellant’s arrest, there was no court order in place, however during the course of the trial Ms. Thorpe advised that she had obtained an ex parte court order receiving sole custody of the child.
[6] Ms. Thorpe testified about an incident which occurred in June 2018 in her home in Niagara Falls. She described the incident as one where she was in her bathroom smoking a cigarette with the appellant. The bathroom door was closed and their one-year-old child Brodie was on the other side of the door. The child was crying and banging on the door. Ms. Thorpe testified that the appellant grabbed her by the throat and pushed her through the door causing the child to fall. Neither she or the child sustained any injuries. There was no explanation about what provoked the attack.
[7] In his reasons for judgment, Stone J. accepted the evidence of the complainant and stated, “I believed her to not be speaking out of a desire to assassinate character or otherwise improperly fabricate and put the allegation before me. On the uncontradicted evidence of Ms. Thorpe, I am satisfied that assault did take place exactly as she described it, and a finding of guilt should be entered.”
[8] Ms. Thorpe was the only witness called by the Crown.
[9] The defence called two witnesses at trial, the appellant’s mother and Jocelyn McVane.
[10] Ms. McVane testified that she knew the appellant since they were 12 or 13 years old. She described her relationship with Ms. Thorpe as “more or less acquaintances”.
[11] Ms. McVane testified about an encounter she had with Ms. Thorpe at a mutual friend’s house in approximately March of 2019. Ms. Thorpe described an incident where she attempted to get her son Brodie back from the appellant, however he was not answering his telephone. She contacted the police and was told because there was no court order they would not be able to assist, however she said the police told her that if she had some information about Derek so that they could criminally charge him, they could proceed with that.
[12] Ms. McVane testified that “Cierra looked at me and said, “I did what any mother would do and I lied about a domestic to get Brodie back””.
[13] This conversation was never put to Ms. Thorpe during her cross-examination. There was no objection by the Crown. The court did not interfere.
[14] During closing submissions, the defence argued that Ms. Thorpe fabricated the allegations against the appellant in order to obtain an advantage with respect to the custody of their child Brodie. At that time, Crown counsel argued that Ms. McVane’s evidence should be given little or no weight since her testimony was never put to Ms. Thorpe during cross-examination and was therefore a breach of the rule in Browne v Dunn. This was the first time during the trial that the Crown raised any objection about the Browne v Dunn issue.
[15] Defence counsel immediately acknowledged that it was his error, that he had planned to put Ms. McVane’s proposed evidence to the complainant but simply forgot. He immediately requested to have Ms. Thorpe recalled in order to remedy the breach. The Crown objected arguing that it was too late to do so.
[16] In refusing to permit the witness to be recalled, the trial judge stated the following:
In this case the witness had gone just before the Crown’s case was closed and the matter had reached the point of the final part of argument discussions. It was not believed, to me, at least, that the witness was readily available on this Friday afternoon in the summertime when I, a visiting judge, was in town. It appeared necessary in these circumstances, and the way things had developed, to proceed without permitting the recall of the witness, and the Crown of course took the position that it was too late to recall the witness. I acknowledge it was permissible to recall the witness as I did acknowledge then, but my ruling now is that I am not going to direct or permit the witness to be recalled to try to correct the situation. Again, other things could have taken place by now, including telling the police, telling the Crown, or cross-examining the complainant, or notifying the court the moment the deficiency was identified rather than waiting until the tail end of arguments. Respectfully, and I mean particularly respectfully to defence counsel, it is just too late for that.
[17] The trial judge made this determination despite earlier stating that “This witness gave evidence which, if true, would compel the court to have a reasonable doubt on the giving of some assault complaint, presumably the one at bar.”
[18] Justice Stone also indicated that he had grave concerns about the evidence of Ms. McVane.
He stated, “If she had received the information she did from Ms. Thorpe, it seems to me that while waiting to contact the accused was one possibility, another very certainly was to contact the police because basically somebody had just confessed committing a criminal offence to her. In this case the witness, for whatever reasons, did not do that, and one reason could be that the statement was not made exactly as she said, or even perhaps at all.”
[19] Ultimately the trial judge gave no weight to the evidence of Ms. McVane and he concluded that he was left with uncontradicted evidence with respect to the assault.
The Law
[21] In R. v. Dexter, 2013 ONCA 744, Weiler, J.A. set out the general principles of the rule in Browne v Dunn.
[17] The rule in Browne v. Dunn is not merely a procedural rule; it is a rule of trial fairness. The rule was summarized by this court in R. v. Henderson (1999), 1999 CanLII 2358 (ON CA), 44 O.R. (3d) 628 (C.A.), at p. 636 as follows:
This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box.
The cross-examiner gives notice by first putting questions to the witness in cross-examination that are sufficient to alert the witness that the cross-examiner intends to impeach his or her evidence, and second, by giving the witness an opportunity to explain why the contradictory evidence, or the inferences to be drawn from it, should not be accepted: see the comments of Lord Herschell in Browne v. Dunn, at pp. 70-71.
…
[19] The rule is also a rule of common sense. By enabling the trial judge to observe and assess the witness when he or she is confronted with contradictory evidence and given an opportunity to explain his or her position, the rule promotes the accuracy of the fact-finding process. In doing so, it enhances public confidence in the justice system.
[20] The effect that a court should give to a breach of the rule in Browne v. Dunn will depend on a number of factors. In deciding how to address a breach, a trial judge may consider:
• The seriousness of the breach;
• The context in which the breach occurred;
• The stage in the proceedings when an objection to the breach was raised;
• The response by counsel, if any, to the objection;
• Any request by counsel to re-open its case so that the witness whose evidence has been impugned can offer an explanation;
• The availability of the witness to be recalled; and
• In the case of a jury trial, whether a correcting instruction and explanation of the rule is sufficient or whether trial fairness has been so impaired that a motion for a mistrial should be entertained.
Thus, the extent of the rule’s application is within the discretion of the trial judge after taking into account the circumstances of the case: see R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 65; R. v. Werkman, 2007 ABCA 130, 404 A.R. 378, at para. 9.
…
[22] Deference is owed to a trial judge’s exercise of discretion in deciding how to deal with a breach of the rule unless error in principle is shown: see R. v. Blom (2002), 2002 CanLII 45026 (ON CA), 61 OR (3d) 51 (C.A.), at para. 20.
[22] Further, in Dexter the Ontario Court of Appeal offered guidance on the role of Crown counsel in the context of a Browne v. Dunn breach. The Crown is not an ordinary litigant and must exercise a public function involving much discretion and power.
[32] The Crown is not an ordinary litigant. In Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, Rand J. stated at pp. 23-24:
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. [Emphasis added.]
[33] The Crown exercises a public function involving much discretion and power. It must be allowed to perform the advocacy and truth-seeking function with which it has been entrusted: see R. v. Cook, 1997 CanLII 392(SCC), [1997] 1 S.C.R. 1113, at paras. 19-21; R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 18. In Jolivet, Binnie J. stated at para. 21:Crown counsel is entitled to have a trial strategy and to modify it as the trial unfolds, provided that the modification does not result in unfairness to the accused. In exercising its discretion the Crown must act fairly and dispassionately. [Emphasis in original.]
[23] At para. 34 the court stated, “Timely objection by the Crown is important because the accused should not be held responsible for defence counsel’s inadvertent or even deliberate failure to observe the rule: see McNeill, at para. 53.”
[24] In R. v. McNeill, 2000 CanLII 4897 (ON CA), [2000] O.J. No. 1357 at para. 47, Moldaver J.A. as he then was stated, “In cases such as this, where the concern lies in a witness’s inability to present his or her side of the story, it seems to me that the first option worth exploring is whether the witness is available for recall.”
Discussion
[28] Of course the trial judge’s decision is afforded significant deference on appeal. However, the discretion of a trial judge is not unfettered and cannot result in a miscarriage of justice to the accused.
[29] In considering the factors a trial judge may consider when determining how to address a breach of the rule of Browne v. Dunn, it would appear that his rationale for not recalling the witness was flawed.
[30] The trial judge’s reasons for judgment in not recalling the witness are set out in para. 16 of my reasons. Here, whether or not the witness had gone just before the Crown’s case was closed and the matter had reached the point of the final part of argument discussions is immaterial in the circumstances. There was no evidence that witness recall was highly impracticable or impossible. Yes, there was some suggestion that the woman lived out of town and was leaving to go and pick up her child, however, no other real inquiries were made as to her availability. This was a one-day trial and the trial judge’s reasons were given late in the day. The matter had to be adjourned in any event for sentencing and it would appear efforts could have been made to have the witness recalled on that adjournment date. There was no evidence to suggest the witness was particularly fragile.
[31] The fact that the judge was a visiting judge, in my view, is completely irrelevant. As indicated earlier, the trial judge had to return to St. Catharines in order to complete the sentencing on this matter. It makes no sense that he would not have been able to hear a witness on that return date.
[32] It is true that the Crown took the position that it was too late to recall the witness and that is a valid concern. However, in this case as will be discussed further, the Crown’s conduct in not making a timely objection to the evidence of Ms. McVane in the first place interfered with the trial fairness.
[33] Lastly, the trial judge’s reasons that other things could have taken place, including telling police, telling the Crown, cross-examining the complainant or notifying the court, make no sense in light of the facts of this case. Defence counsel immediately acknowledged his error in not putting Ms. McVane’s testimony to the complainant when the subject was raised by the Crown. He acknowledged that he had a note to do this, but inadvertently forgot to put these questions to the complainant. He immediately asked to have the witness recalled. Telling the police or telling the Crown are meaningless in this fact situation. He asked to cross-examine the complainant by having her recalled. In my view, these conclusions of the trial judge are illogical.
[36] In these circumstances, the failure to recall this witness resulted in unfairness to the accused and did not meet the ends of justice.
[37] The next issue the court must consider is the effect of the Crown’s failure to raise a timely objection to the breach of the rule in Browne v. Dunn.
[38] Here there is no dispute that while Ms. McVane gave her testimony and was examined in-chief by counsel, there was no objection by the Crown or interference by the trial judge. In fact, the Crown cross-examined Ms. McVane, in particular, regarding what she did, and why she sat on the information and did not go to the police. It was only during the course of the Crown’s submission, that the breach of the rule was first raised.
[39] It was incumbent upon the Crown to raise the objection when the evidence was first tendered. Whether or not this was part of trial strategy one does not know, however, this type of strategy cannot result in unfairness to the accused. Failure to object in a timely way has made the accused responsible for the inadvertence of his solicitor to observe the rule in Browne v. Dunn.
[40] It is particularly concerning that the Crown cross-examined the very witness they suggested the court not consider. It is significant that the court relied on the very questions raised by the Crown in cross-examination in questioning the credibility of Ms. McVane.
[41] The trial judge is afforded the utmost deference in the exercise of his judicial discretion, however, when the result is unfairness to the accused or a miscarriage of justice, the conviction cannot stand. This is particularly so in light of the Crown’s failure to object in a timely fashion.
[42] In light of these reasons, I do not need to address the appellant’s third and fourth grounds of appeal.
[43] Accordingly, the conviction is quashed and a new trial ordered.
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