This week’s top three summaries: R v CL, 2023 SKCA 58: s.10(b) informational duty, R v Castro Wunsch, 2023 ABCA 160: narrative & #hearsay, and R v RG, 2023 ONCA 343: #reopening the defence.
This week’s top case deals with a sexual assault case. For great general reference on the law of applicable to this sort of offence, 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.
PROSECUTING AND DEFENDING SEXUAL OFFENCE CASES, 2ND ED.
R v CL, 2023 SKCA 58
[May 17, 2023] Charter s.10(b) – Informational Duty [Reasons by Kalmakoff J.A. with Tool and Drennan JJ.A. concurring]
AUTHOR’S NOTE: In sexual assault cases, custodial interviews of suspects offer significant evidentiary benefits to the prosecution. Often, police can get away with a perfunctory Charter card reading of the rights of the accused along with putting them on a phone. However, there are circumstances where that will not be enough and this case provides a great example of how that occurs along with a good overview of the case law. Here the police were faced with a man in the midst of unmedicated mental disorders and with a positive indication that he did not understand the Charter rights read out to him. This set of circumstances meant the police had to do more – they could not rely on a mechanical recitation of the right and must facilitate an actual understanding.
I. INTRODUCTION
[1] After a judge alone trial in the Court of Queen’s Bench, C.L. was convicted of committing sexual interference against his 6-year-old niece and sentenced to 4.5 years in a federal penitentiary. He appeals against both the conviction and the sentence.
[2] C.L. suffers from mental disorders that include schizophrenia, schizotypal personality disorder, and attention deficit hyperactivity disorder [ADHD]. The issues he raises on appeal concern the way in which the trial judge dealt with the intersection between his mental disorders and the factual and legal questions she had to determine.
[3] In his appeal against conviction, C.L. contends that the trial judge erred by admitting into evidence a statement that was obtained in connection with a violation of his right to counsel. In the alternative, he argues that, even if the inculpatory statement was properly admitted as evidence, the trial judge erred by failing to consider the expert evidence concerning how his mental disorders affected the statement’s reliability.
II. BACKGROUND
[5] In 2011, C.L. was diagnosed with schizotypal personality disorder, schizophrenia, and ADHD. According to the evidence led at trial, those conditions make him prone to obsessive thinking, unusual perceptions and inaccurate or skewed interpretation of events. Because of his mental disorders, C.L. has been unable to live independently, maintain steady employment or pursue post-secondary education. For the most part, his condition is managed by medication, including an anti-psychotic injection to assist with his schizotypal personality disorder and schizophrenia, and an oral prescription for his ADHD.
[6] In February of 2018, C.L. began living with his sister and her three young children. At some point thereafter, he stopped taking his prescribed medication. Over time, he formed the erroneous belief that one of the children, K.S., had been sexually assaulted by a neighbour, and he became obsessed with investigating this belief and bringing that person to justice. As part of this venture, when K.S. was in his care, C.L. would repeatedly question her about sexual matters.
[7] Eventually, on May 5, 2018, C.L. called the police to report what he believed the neighbour had done to K.S….
[8] C.L. was also transported to the detachment, at his own request,…
… At this point, C.L. was not a suspect; the police wanted to interview him because he had been the one to report the matter to them.
[9] That changed, however, after K.S. was interviewed. In the course of the interview, she said that C.L. had touched her sexually the previous day. At approximately 11:00 p.m., shortly after the conclusion of K.S.’s interview, police directed C.L. to move to a locked interview room, where he would remain while the officers decided how they would proceed. Even though C.L. was detained at that point, the officers did not advise him of the reason he was being detained or provide him with any information about his Charter rights.
[10] C.L. remained alone in the secure interview room until 12:30 a.m., when Cst. Cote entered the room and placed him under arrest. Then, Cst. Cote advised C.L. of his right to counsel and read to him the standard police warning, which also advised him of the right to remain silent. C.L. did not ask to call a lawyer….
[11] At the outset of the interview, Cpl. McLeod read the secondary police caution to C.L., advising him that he need not repeat anything he might have said to any other police officer, and that anything he said to Cpl. McLeod may be used as evidence. Cpl. McLeod also explained the offences for which C.L. had been arrested, attempted to obtain some clarification about his mental disorders, and confirmed that C.L. had not requested to speak to counsel when he had spoken to Cst. Cote earlier. After all of that was done, Cpl. McLeod began the interview and, during the course of it, C.L. provided a statement in which he admitted to having touched K.S. sexually.
[13] The trial judge admitted C.L.’s statement as evidence. She found that it was the product of an operating mind and that it was voluntary under the framework established in R v Oickle, 2000 SCC 38, [2000] 2 SCR 3, and R v Spencer, 2007 SCC 11, [2007] 1 SCR 500. She also determined that, of the various Charter breaches C.L. had alleged, he had only succeeded in establishing a breach of his rights under ss. 10(a) and (b) on the basis that he was detained for approximately 90 minutes before being informed of the reason for his detention or advised of his right to counsel. She did not exclude the statement under s. 24(2) of the Charter, however, as she determined that those breaches were only minor and inconsequential, and found that they had been cured before he provided any incriminating evidence….
[15] C.L. did not testify at the trial. He argued that K.S.’s evidence was not reliable, given the fact that her story had changed. He also contended that the trial judge should find his statement to be neither credible nor reliable, in light of the evidence his psychiatrists provided about his mental state at the time he gave the statement and the mixture of exculpatory and inculpatory things he said in it….
[16] After the trial judge found him guilty of sexual interference and sexual assault, C.L. applied under s. 16 of Criminal Code for a finding that he was not criminally responsible on the basis of mental disorder. The trial judge rejected that application,…
[18] The trial judge determined that an appropriate and proportionate sentence for C.L. would be a term of imprisonment of 4.5 years….
III. ANALYSIS
[19] As I indicated in the introduction to these reasons, only one of the questions C.L. raises on the appeal needs to be addressed, as it is dispositive. That question is: Did the trial judge err in concluding that C.L.’s right to counsel, as guaranteed by s. 10(b) of the Charter, was not violated?
A. Framing the argument
[20] C.L. contends that the trial judge erred in finding that his statement had been obtained in a fashion that complied with his right to counsel under s. 10(b) of the Charter. He argues on the appeal, as he did at trial, that there was evidence the police were aware of his mental disorder and of the fact that he was unmedicated and symptomatic at the time of his arrest. He also says there was clear evidence that, when Cst. Cote initially informed him of his right to counsel, he expressed a lack of understanding of his legal rights or how to implement them. He contends that, considering those circumstances, the police were not entitled to simply proceed as though he had not asserted his right to counsel, but that they had a duty to inquire further in order to ensure that he was not operating under any misunderstanding about his rights before attempting to elicit evidence from him. Relatedly, C.L. contends that the trial judge’s conclusion that he understood his right to counsel is based on a misapprehension of the evidence.
C. The governing legal principles
[23] Section 10(b) of the Charter provides that “[e]veryone has the right, on arrest or detention … to retain and instruct counsel without delay and to be informed of that right”. The purpose of s. 10(b) is to provide detainees with “an opportunity to contact counsel in circumstances where they are deprived of liberty and in the control of the state, and thus vulnerable to the exercise of its power and in a position of legal jeopardy” (R v Willier, 2010 SCC 37 at para 28, [2010] 2 SCR 429 [Willier]). In this way, the protection offered by s. 10(b) ensures that detainees understand how to exercise their rights and are able to make choices about whether to speak to the police that are both free and informed (R v Sinclair, 2010 SCC 35 at paras 25-32, 259 CCC (3d) 443 [Sinclair]; R v Hebert, [1990] 2 SCR 151 at 176; R v Lafrance, 2022 SCC 32 at para 71, 416 CCC (3d) 183 [Lafrance]).
[24] When a person is detained or arrested, s. 10(b) imposes three defined, positive duties on the police:
(a) to inform the detainee of their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
(b) if the detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent or dangerous circumstances); and
(c) to refrain from eliciting evidence from the detainee until the detainee has had that reasonable opportunity.
The first of these duties is informational in nature. The second and third duties are implementational and are only triggered when the detainee indicates a desire to exercise their right to counsel (Willier at paras 29–30; R v Bartle, [1994] 3 SCR 173 at 192 [Bartle]; R v Ector, 2018 SKCA 46 at paras 41–42, 362 CCC (3d) 462 [Ector]).
[26] The circumstances of C.L.’s case implicate the conduct of the police at the informational stage. The information component of s. 10(b) is crucial and requires police officers to explain the right to counsel to detainees in a timely and comprehensible manner because, as observed in Bartle, “[u]nless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as the right to silence” (at 193, emphasis in original).
[27] The informational component of s. 10(b) has been described as one that is “relatively straightforward” (Willier at para 31), and it will usually not be difficult to for police officers to fulfil their duty at this stage. Generally speaking, a standard police caution that informs the detainee that they have the right to seek and receive legal advice immediately and free of charge will suffice, “absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability” (Bartle at 193).
[28] … It is settled law that, where a detainee positively indicates that they do not understand their right to counsel, “the police cannot rely on a mechanical recitation of that right and must facilitate that understanding” (Willier at para 31). The reason for this is obvious because, as noted in R v Evans, [1991] 1 SCR 869 at para 891 [Evans], “[a] person who does not understand [their] right to counsel cannot be expected to assert it”. [PJM Emphasis]
[29] Of course, this does not require that police officers be mind readers. Nor does it call upon them to thoroughly probe a detainee’s understanding of the right to counsel in every case. It will only be necessary to take further steps at the informational stage to address a detainee’s misunderstanding or lack of understanding of the right to counsel where there is a clear communication to that effect by the detainee, or where other objective factors signal confusion or misunderstanding on the detainee’s part (R v Dunford, 2017 SKCA 1 at para 27, 345 CCC (3d) 374. See also: Evans at 891; Bartle at 192–194; and Sinclair at para 55). Put another way, where there is something about the circumstances, viewed objectively, that positively indicates a possible lack of comprehension of the right to counsel on the part of the detainee, the police cannot presume that they have satisfactorily fulfilled their duty to inform (R v Magalong, 2013 BCCA 478 at para 28, 305 CCC (3d) 396).
D. The principles applied
[30] As I will demonstrate, the trial judge erred in finding that C.L.’s rights under s. 10(b) of the Charter were not violated in connection with the taking of his statement.
[31] In the Voir Dire Decision, the trial judge gave the following reasons for concluding that there had been no violation of C.L.’s right to counsel:
[97] Cst. Cote testified, and I accept, that he formally arrested C.L. and provided rights and warnings from his police issued card after 12:30 AM on May 6, 2018. In direct examination, Cst. Cote testified that in response to his asking C.L. whether he understood the reasons for his arrest, C.L. answered: “I don’t know”. When he received that answer he repeated the reasons for arrest again and C.L. said nothing. On cross-examination, it was suggested to Cst. Cote that C.L. said “I don’t”, in response to the question of “do you understand”. Either way, C.L.’s answer suggests that he was unsure about what had been read to him. Cst. Cote then read C.L. his rights respecting legal counsel. C.L. declined legal counsel and Cst. Cote testified, and I accept, that he had no trouble understanding him.
[101] When C.L. was first arrested, Cst. Cote told C.L. what charges he faced once and then again for a second time, although C.L. did not acknowledge, one way or the other, that he understood. He said nothing. However, s. 10(a) does not include a requirement that the suspect immediately positively verbalize the extent of his understanding. There is no evidence from the subjective perspective of C.L. whether he understood or not. Thereafter, C.L. slept through the night and the next morning, Cpl. McLeod explained those charges again. At this point, C.L. did demonstrate, from an objective perspective, that he understood the charges, as I have already found. Thereafter, C.L. declined to speak to counsel. I have already found that he understood this was his right and even identified, to himself, a lawyer he could call if he chose to do so, which he did not.
[102] I note also that because C.L. did not testify at the voir dire, there is no evidence of his understanding, or lack thereof, of the charges he faced or his right to consult with legal counsel. The clearest evidence that he did understand comes from the statements he made in the May 6, 2018 interview, which I have already identified.
[32] With respect, this reasoning embeds several errors.
[33] To start with, as I read the trial judge’s reasons, she found that the lack of understanding C.L. had expressed to Cst. Cote related only to the information conveyed to him about the reasons for his arrest, and that any misunderstanding in that regard had been resolved by the time he spoke to Cpl. McLeod. She also found that C.L. had expressed that lack of understanding before he was informed of the right to counsel, and that there was “no evidence” that he lacked an understanding of his “right to consult with legal counsel” (Voir Dire Decision at para 102). As I will explain, these factual findings amount to palpable and overriding error, because they do not reflect the evidence that had been led on those points, and they led the trial judge astray when she applied the law to them.
[34] In that respect, Cst. Cote had testified as follows with respect to the exchange that occurred when he advised C.L. of the reason for his arrest and informed him of his right to counsel:…
And that’s what — and I wrote down, at 0032 (INDISCERNIBLE), Do you understand, and he indicated, I don’t know.
…
Q So is “I don’t know”, like, you’re writing that down at the time he was giving that answer? Like, that’s a verbatim answer, or —
A Yeah, that’s what he — what he said directly, right after the fact.
[35] When asked whether he took steps to clarify C.L.’s grasp of the situation, given that he had responded by saying “I don’t know” to the question of whether he understood the information he had been provided concerning his right to counsel, Cst. Cote testified that the only clarification he provided was to repeat the reason for C.L.’s arrest, as set out in this exchange:
Q Okay. When he said — well, you said, Do you understand, he said, I don’t know. Did you delve into that any further, or did you just move onto the 10(b) at that point?
A Well, we just explained to him again, like, You’re going to be arrest for sexual exploitation and — sexual exploitation and sexual interference.
Q Okay. So are you saying you repeated that, or –
A Yeah. Yes, pretty much.
Q Okay. And was there any further conversation about his understanding of that at that point?
A At that point, no. We just moved onto the lawyer call.
[36] C.L. did not ask to speak to counsel after the exchange with Cst. Cote. He was lodged in cells, where he slept until later that morning, when Cpl. McLeod arrived to take a warned statement from him. There is no evidence that any other police officer spoke to C.L. or provided any additional information about the right to counsel during that time.
[37] The warned interview of C.L. began at 10:32 a.m. It started with Cpl. McLeod providing a secondary police caution to C.L., advising him that he was not obligated to repeat anything he had previously said to other police officers, and that anything he said from that point on may be used as evidence. Although some discussion was necessary to clarify that point, C.L. eventually voiced an understanding of it. Cpl. McLeod then took time to explain the nature of the charges that C.L. was facing and to confirm that he understood the general nature of the allegations against him. Throughout that portion of the interview, C.L. spoke freely and indicated that he did not care what happened to him; his focus was on making sure that the person he believed had abused K.S. was brought to justice. Before delving into any discussion with C.L. about the substance of the allegations, Cpl. McLeod also spoke with C.L. about his mental disorders, including getting details about the nature of his diagnosis, his prescribed medication, and the fact that he had been unmedicated for some time.
[38] The first, and only, time during the warned interview that any discussion took place between Cpl. McLeod and C.L. about the right to counsel came approximately 21 minutes after the interview began. That discussion went like this:…
Cpl. McLeod: Ahm, when you were brought in and you were arrested and they asked if they, if you want to speak to a lawyer and you said you did not.
C.L.: No.
Cpl. McLeod: Okay?
C.L.: I do not want to speak to a lawyer.
Cpl. McLeod: Okay?
C.L.: If I were to speak to a lawyer, I know the one I’d speak to – – but I’m not going to bother her.
[39] As these excerpts demonstrate, Cst. Cote’s evidence was that C.L. expressed a lack of understanding immediately after Cst. Cote asked him if he understood the information that he had just been provided concerning the right to counsel. Cst. Cote also testified that he, Cst. Cote, understood C.L.’s answers, but that was not the point in issue. The question the trial judge needed to determine was whether C.L. understood what Cst. Cote had conveyed to him about the right to counsel and, in that respect, C.L.’s response to Cst. Cote was a clear and objective indication that C.L. did not understand. Notwithstanding C.L.’s equivocation, there was no evidence that Cst. Cote took any steps to clarify exactly what C.L. was saying he did not understand regarding the information he had been given about the right to counsel, or that any other police officer did anything that was aimed at rectifying that apparent misunderstanding. The trial judge’s finding that there was “no evidence of [C.L.’s] understanding or lack thereof” in that respect stands in stark contradiction to the record. There was, in fact, direct evidence on that point. With respect, the trial judge erred by not recognizing that and, because that error led her to conduct her analysis of the legal issue before her from a faulty factual footing, it is properly seen as palpable and overriding.
[40] The jurisprudence is clear that, where a detainee provides a positive indication of uncertainty as to the content of the right to counsel, the informational duty has not been fulfilled and the police must provide the detainee with further and better information. In such circumstances, the police cannot simply rely on a mechanical recitation of the right; they must do more to facilitate the detainee’s understanding (Willier at para 31). In this case, C.L.’s response to Cst. Cote’s question about whether he understood the right to counsel was a positive indication of uncertainty, which occurred immediately after what can be fairly described as a mechanical recitation of the right to counsel information. In light of that, Cst. Cote was required to do more to facilitate C.L.’s understanding, and he did not.
[42] … It is correct to observe, as the trial judge did by referencing the decision in R v Goodkey, 2015 BCCA 64 [Goodkey], that one of the purposes of the right protected by s. 10(a) is to ensure a person knows why they have been detained or arrested so that they can meaningfully exercise the s. 10(b) right to counsel. This does not mean, however, that a finding that a detainee has been properly informed of the reason for their detention in compliance with s. 10(a) means there has also been compliance with s. 10(b). In that regard, I find that the trial judge’s reliance on Goodkey was misplaced, as the portion of that decision that she cited was part of a discussion addressing the question of whether the accused’s rights under s. 10(a) had been violated in that case, not whether there had been police compliance with the informational duty under s. 10(b).
[43] With respect, by approaching the question in the way she did, the trial judge overlooked the importance of the full breadth of the informational requirement of s. 10(b). A proper understanding of the informational component of the right to counsel recognizes that the detainee must be informed not only of their right to contact counsel, but also of the fact that the right may be exercised immediately and that there is an option whereby legal advice can be obtained free of charge. In circumstances such as the present case where there is evidence that objectively speaks to a lack of understanding on the part of the detainee concerning the information conveyed to them by police about the exercise of the right to counsel, a judge must turn their mind to the question of whether the information provided by the police actually led to an informed decision on the detainee’s part to not assert the right. Reading the trial judge’s reasons in the Voir Dire Decision as a whole, I am unable to conclude that she did that.
[44] … A failure to comply with the obligation that must be met at the informational stage is automatically a breach of s. 10(b), meaning that C.L.’s right to counsel was violated, without the need for him to establish that proper information would have caused him to act differently. This point was made by Schwann J.A. in Ector:
[77] In Bartle, Lamer C.J.C. found a s. 10(b) breach had arisen where the accused had not been advised of the existence and availability of duty counsel and a toll-free number. Having established a breach of the informational duty, Lamer C.J.C. went on to discuss whether an accused bore the onus of demonstrating “anything different” would have occurred had the breach not occurred. Squarely addressing this point, he said:
… It follows, therefore, that where the informational obligations under s. 10(b) have not been properly complied with by police, questions about whether a particular detainee exercised his or her right to counsel with reasonable diligence and/or whether he or she waived his or her facilitation rights do not properly arise for consideration. Such questions are simply not relevant under s. 10(b) (although they may be when it comes to considering whether the evidence obtained in the course of the Charter violation should be excluded under s. 24(2) of the Charter). The breach of s. 10(b) is complete, except in cases of waiver or urgency, upon a failure by state authorities to properly inform a detainee of his or her right to counsel and until such time as that failure is corrected.
(198, emphasis added)
[45] In my view, had the trial judge not made the factual error identified above, and had she applied the correct legal test, the conclusion that there was a violation of C.L.’s rights under s. 10(b) was inevitable. C.L. had been arrested late at night and he expressed a lack of understanding immediately after the standard information regarding his right to counsel had been conveyed to him….
… Moreover, the breach was not corrected by Cpl. McLeod simply asking C.L. to confirm, many hours later, that he had decided not to speak to a lawyer. In that respect, C.L.’s statement that “If I were to speak to a lawyer, I know the one I’d speak to – – but I’m not going to bother her” is further evidence suggesting that he may still have been labouring under a misunderstanding about the immediate availability of free-of-charge options such as legal aid duty counsel.
[46] In the result, the trial judge’s finding that no breach was established must be set aside.
E. Remedy
2. Exclusion of evidence under s. 24(2) of the Charter – the governing principles
3. The principles applied
a. The seriousness of the Charter-infringing state conduct
[55] The breach of C.L.’s s. 10(b) rights in this case was serious. Although the breach was not intentional, it cannot be properly characterized as merely technical or inadvertent. The right to counsel is a well-known, fundamental right, and is one that cannot be meaningfully exercised unless the detainee understands how they may do so in the relevant context. In that respect, when C.L. was asked if he understood the right to counsel information that had been communicated by Cst. Cote, he expressed a clear uncertainty by saying “I don’t know”. On the face of things, there was an obvious way that Cst. Cote could have addressed that apparent lack of understanding, namely, by asking a follow-up question such as “what do you mean by that” or “what are you uncertain about”. But, instead, Cst. Cote simply proceeded to restate to C.L. the reason for his arrest and made no other attempt to facilitate C.L.’s understanding of the right to counsel. There was no urgency to the situation at that point, as nobody was in physical danger, there was no basis to be concerned that evidence might be lost if matters did not proceed quickly, and C.L. was not being difficult. On top of all of that, Cst. Cote was aware that C.L. suffered from a mental disorder that might affect his thoughts or perceptions in some fashion.
[56] Considering all those circumstances, I conclude that the breach in this case was one that was careless and demonstrates a lack of regard for Charter standards. In the result, I find that the first Grant factor pulls strongly towards exclusion of the evidence.
b. The impact of the breach on C.L.’s Charter-protected rights
[57] The second line of inquiry under s. 24(2) considers the impact of the breach on the accused’s Charter-protected rights. As noted in Beaver:
[123]…This inquiry involves identifying the interests protected by the relevant Charter right and evaluating the extent to which the Charter breach “actually undermined the interests protected by the right” (Grant, at para. 76). As with the first line of inquiry, the court must situate this impact on a spectrum. The greater the impact on the accused’s Charter-protected interests, the greater the risk that admission of the evidence would suggest that Charter rights are of little actual avail to citizens, thus breeding public cynicism and bringing the administration of justice into disrepute suffering from In those circumstances (see Grant, at paras. 76-77; Le, at para. 151; Tim, at para. 90; Lafrance, at para. 96).
[58] In my view, C.L.’s Charter-protected interests were seriously impacted by the breach in this case. Without the benefit of legal advice, he made highly incriminating admissions that bolstered the Crown’s case. In saying this, I recognize that the trial judge found C.L.’s statement to have been voluntarily made, in the sense that it was the product of an operating mind and not the result of oppressive conduct or inappropriate trickery on the part of the police, and that she also found he knew he did not have to speak to police and that there may be detrimental consequences to him if he did so.
[59] However, against that, it must also be observed that the trial judge accepted the evidence of Dr. Semrau, which was to the effect that “at the time of his statement to the police on May 6, 2018, C.L. was suffering from a set of serious chronic mental illnesses” and that “in the weeks prior to the police statement, C.L.’s mental health had deteriorated” which led to him being “very likely significantly impaired in his capacity … to respond to questions (or choose not to respond) in a fashion which reflected an accurate appraisal of his legal jeopardy and his rights in providing information to the police” (Voir Dire Decision at paras 16–17). The trial judge also found that “C.L.’s ability to rationally consider whether he was making choices in his own best interest was impaired by his psychosis during the time of the interview” (at para 23), and that he “may not have had sufficient capacity during the interview to understand that it would be in his best interest to speak to a lawyer, to remain silent and to refuse to speak with police” (at para 36).
[60] In light of all of that, I view the impact of the breach on C.L.’s Charter-protected rights as serious, notwithstanding the fact that he was willing to engage in a frank discussion with Cpl. McLeod and to provide information that he recognized would incriminate himself, on the basis of a hope that doing so would lead to the apprehension of another person….
[61] In the result, I conclude that consideration of this factor also pulls strongly towards exclusion of the evidence.
[64] In Beaver, Jamal J. provided the following summary of the approach to be taken to the final step in the s. 24(2) analysis:
[133] The final step in the s. 24(2) analysis involves weighing each line of inquiry to determine whether admitting the evidence would bring the administration of justice into disrepute. This balancing has a prospective function: it aims to ensure that evidence obtained through a Charter breach does not cause further damage to the justice system. It is also societal in scope: its goal is not to punish the police but to address systemic concerns involving the broad impact of admitting the evidence on the long-term repute of the justice system (see Grant, at paras. 69-70 and 85-86; Le, at para. 139; Tim, at para. 98).
[134] When undertaking this weighing exercise, “it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry” (Lafrance, at para. 90 (emphasis in original)). “[W]hen the two first lines, taken together, make a strong case for exclusion”, the third line of inquiry “will seldom tip the scale in favour of admissibility” (Lafrance, at para. 90). The third line of inquiry “becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence” (R v McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, per Doherty J.A.; see also R v Chapman, 2020 SKCA 11, 386 C.C.C. (3d) 24, at paras. 125- 26 and 130). It is possible that admitting evidence obtained by particularly serious Charter– infringing conduct will bring the administration of justice into disrepute, even if the conduct did not have a serious impact on the accused’s Charter-protected interests (Le, at para.141). But where the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence, the administration of justice will not be brought into disrepute by its admission.
[65] In C.L.’s case, the first two lines of inquiry, taken together, make a strong case for exclusion of his statement. The breach was serious, as was its effect on C.L.’s Charter-protected interests. Combined, those factors tilt the balance heavily towards exclusion. Considering all of the circumstances, I am not persuaded that they are overwhelmed by a compelling public interest in admitting the evidence and, accordingly, I am satisfied that its admission would bring the administration of justice into disrepute.
IV . CONCLUSION
[67] For the foregoing reasons, I would allow the appeal, set aside the conviction, and order a new trial. The sentence appeal is moot.
R v Castro Wunsch, 2023 ABCA 160
[May 16, 2023] Hearsay Exception: Narrative as Circumstantial Evidence [Khullar C.J.A., Strekaf and Kirker JJ.A.]
AUTHOR’S NOTE: Start rant: no one understands the so-called narrative as circumstantial evidence exception to hearsay. It is undoubtedly the most misused legal exception to hearsay. There is a very simple reason for this. The exception only works with a kind of Chinese wall mental barrier that most human beings, including jurists, are incapable of maintaining. The exception allows the use of the fact that the statement was made to inform inferences the Court can make, but not the inference that the subsequent in-court testimony is true because of the prior statement or that the past statement is evidence of what happened. Many prosecutors don’t understand it and when they make submissions to Courts to accept it, they draw them into error. This decision shows a prototype of where things usually go wrong at the trial level and defence lawyers can use it to highlight inappropriate uses advocated for by the Crown. Judges admit the evidence and then cannot actually draw any useful inferences from it other than those that violate the hearsay rule. End rant.
Introduction
[1] Following a trial by judge alone, the appellant was found guilty of sexual assault contrary to s. 271 of the Criminal Code, RSC 1985, c C-46: R v Castro-Wunsch, 2021 ABQB 337. He appeals his conviction.
[2] The appellant and complainant both worked at the same facility. The complainant was a 21- year-old summer student. The appellant was her supervisor. The complainant testified that the appellant perpetrated multiple, escalating sexual assaults against her in his office over the course of a workday on July 16, 2018. The appellant testified that he and the complainant engaged in consensual intimate touching throughout that day. He denied that some of the sexual activity described by the complainant occurred. Confronted with conflicting evidence on material points, the trial judge had to address issues of credibility and decide whether the evidence she accepted established the appellant’s guilt beyond a reasonable doubt.
[3] The trial judge believed the complainant’s evidence, relying in part on text messages sent by the complainant to a friend. The trial judge also considered the power imbalance between the appellant and the complainant stating that it “necessarily impacted” her consideration of “both credibility and consent”: Castro-Wunsch at para 326. The trial judge ultimately found that “[w]here the accused’s evidence contradicted [the complainant’s] evidence on crucial issues such as what sexual activities occurred, whether she consented, and whether he had knowledge of her lack of consent, it did not raise a reasonable doubt in [her] mind, nor did any of the other evidence in the trial”: Castro-Wunsch at para 329.
[5] We are satisfied that the trial judge erred in her use of the text messages. She determined that the statements made by the complainant in her text messages were not admissible as res gestae or ‘excited utterances’ exceptions to the hearsay rule and therefore could not be relied upon for the truth of their contents. But then in assessing the complainant’s credibility, the trial judge reached conclusions that rest upon the truth of the statements made, contrary to her hearsay ruling and the rules that restrict the use of prior consistent statements given by a testifying witness: Gourlay et al, Modern Criminal Evidence (Toronto: Edmond Montgomery, 2022) at 227 (“Modern Criminal Evidence”); David M Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get It Right” (2013) 17 Can Crim L Rev 181 at 184-187 (“Prior Consistent Statements”); R v Stirling, 2008 SCC 10 at para 5 citing R v Evans, [1993] 2 SCR 629, 1993 CanLII 102 (SCC), R v Simpson, [1988] 1 SCR 3, 1988 CanLII 89 (SCC) and R v Béland, [1987] 2 SCR 398, 1987 CanLII 27 (SCC); R v Dinardo, 2008 SCC 24 at para 36.
Standard of Review
[8] It is an error of law for a trial judge to admit and use prior consistent statements for an impermissible purpose. Where issues of this nature are raised, the standard of appellate review is correctness: R v TWS, 2020 ABCA 157 at para 39, leave to appeal to SCC refused, 39341 (4 March 2021). See also, R v CMM, 2020 BCCA 56 at para 144 where the court noted that the admissibility and use of a complainant’s out-of-court statement raises a question of law that is reviewed for correctness.
Decision
Background
[9] The complainant gave her evidence in a voir dire. During her examination in chief, she was asked whether she had her cellphone with her while the events she described were unfolding. She was also asked whether she could recall using it, and for what. The complainant recalled sending text messages to a friend, noting that “when [the appellant] would run down to the scale, I would send her a quick message sort of telling her what was going on”. Before Crown counsel took the complainant to the text messages themselves and asked her to explain when they were sent, the circumstances surrounding them, and what she meant by some of the statements she made, the trial judge was informed that the Crown sought to have them admitted into evidence and used for the truth of their contents (pursuant to the res gestae exception to the exclusionary hearsay rule) or, alternatively, as narrative as circumstantial evidence.
[10] The text messages introduced by the Crown were contained in photographs known as ‘screenshots’ saved by the complainant’s friend two days after they were received. The friend testified that she deleted the original text message conversation to save space on her phone. She took and saved the screenshots because she got the impression that the complainant may want to “move forward with something legally” and the text messages “might be useful one day”. The screenshots do not show the date or times the complainant’s text messages were received and the Crown conceded that the friend’s reliability in relation to the timing of receipt was “somewhat, you know, tenuous”. It was not disputed that parts of the text conversation between the complainant and her friend were also missing and that the complainant had not remembered sending text messages to her friend until she saw the screenshots shortly before the preliminary inquiry. The appellant’s trial counsel had the opportunity to cross-examine both the complainant and her friend about the text messages captured in the screenshots.
[11] The fact that the complainant’s out-of-court statements were being adduced to prove the truth of their contents meant that the Crown sought to use the evidence for a hearsay purpose: R v Khelawon, 2006 SCC 57 at para 37; R v Baldree, 2013 SCC 35 at para 36. For this reason, the trial judge had to consider whether the admission and use of the evidence was supported by the requisite indicia of necessity and reliability: R v Khan, [1990] 2 SCR 531, 1990 CanLII 77 (SCC); R v Starr, 2000 SCC 40 at para 200; R v Mapara, 2005 SCC 23 at paras 14 and 15. The framework for considering the admissibility of hearsay evidence, including evidence historically admitted under one of the traditional exceptions to the hearsay rule, was explained by Chief Justice McLachlin writing for the majority in Mapara at paras 14-15 as follows:
… Wigmore pointed out that the reasons for excluding hearsay evidence in general is that it is not the best evidence (direct evidence would be better), and it may be unreliable (it was not given under oath and cannot be tested by cross-examination). However, if these two defects are alleviated, hearsay evidence may be admitted. This, Wigmore opined, explains how most of the exceptions to the hearsay rule developed. The evidence is necessary, in that the person who made the hearsay statement is not readily available. And it is reliable, in the sense that something about it provides a circumstantial guarantee of trustworthiness. For these reasons, judges began to admit it. Their decisions were followed in other cases. Gradually, an exception emerged and became a fixed rule. Once fixed, however, the rule became rigid and could, in some cases, exclude evidence which should have been received having regard to the underlying criteria of necessity and reliability. It could also occasionally lead to the admission of evidence which should be excluded, judged by these criteria. This in turn could impede the search for the truth or unfairly prejudice the accused person.
The principled approach to the admission of hearsay evidence which has emerged in this Court over the past two decades attempts to introduce a measure of flexibility into the hearsay rule to avoid these negative outcomes. Based on the Starr decision, the following framework emerges for considering the admissibility of hearsay evidence:
(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.
(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.
(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.
(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.
(See generally D. M. Paciocco and L. Stuesser, The Law of Evidence (3rd ed. 2002), at pp. 95-96.)
See also, R v Blackman, 2008 SCC 37 at para 33; Baldree at para 34; R v Youvarajah, 2013 SCC 41 at paras 20-21; R v Bradshaw, 2017 SCC 35 at paras 21-23.
[12] While hearsay evidence is commonly introduced and most often necessary when a witness is unable to testify, the question of its use also arises in the context of prior consistent statements made by a testifying witness. As Paciocco explains in Prior Consistent Statements at 194:
… there is no rule of evidence preventing a party who admits hearsay evidence under [the res gestae exception] from calling the declarant as a witness and asking the witness to testify about the same facts or events contained in the … res gestae statement. It would be foolish if it did. While the hearsay claim, viewed in isolation, may prove to be redundant where the witness makes the same factual claim during in-court testimony, there may be added value in admitting the prior consistent admissible hearsay and using its indicia of reliability to assist in evaluating the accuracy of the factual claim the witness is advancing. To be clear, there is no added value in the fact that the same statement was repeated; the prohibited inference would be offended by reasoning in this way. And there is no added value in the fact that two items of admissible evidence point in the same direction; it would offend the rule against using prior consistent statements as corroborative to accept this. The added value, if any, comes from the context and circumstances in which the admissible hearsay statement was made; for example, … the fact that the witness made the same claim by way of an excited utterance in the heat of the moment and before any opportunity to concoct could reasonably have arisen provides additional reasons for rationally choosing to believe the witness’s in-court testimony containing the same utterance.
[13] This interplay between the hearsay rule and the rules governing the use of prior consistent statements was not made particularly clear for the trial judge. She was advised it was the Crown’s position that statements made by the complainant in her text messages qualified as ‘excited utterances’ or statements forming part of the res gestae of the crime and that on this basis, the text messages were admissible and could be relied upon to prove that the facts claimed by the complainant were true. The appellant challenged the Crown’s reliance on the res gestae exception to the hearsay rule because the record of the text messages was not complete, the context surrounding the exchanges was missing, and it was unclear at what time they were sent.
[14] If the trial judge did not accept that statements made by the complainant in her text messages could be relied upon for the truth of their contents, the question was whether the screenshots had any other probative value, given the general rule that prior consistent statements lack probative value and are self-serving in light of a witness’s testimony: Stirling at para 5; Dinardo at para 36. In this regard, the trial judge was advised that the Crown intended to argue that the text messages were admissible and could be used:
… as narrative as circumstantial evidence, which is something different than just simply plain narrative evidence, but narrative [as] circumstantial evidence which doesn’t allow you to use it in — like entire — like as for the truth of its contents, but it allows you to use it in a — you know, there is a subtle distinction of sort of a lesser kind of quality to the evidence, but for very important purposes as it relates to the in- court testimony, a credibility assessment of the witness, the complainant in this case primarily.
[15] The appellant’s counsel did not agree the text messages could be used in this alternative way either but advised the court that there may be purposes the text messages could serve that had not yet been contemplated.
[17] No one specifically addressed whether the text messages were actually “necessary to unfold the ‘narrative’ and make material events comprehensible”: see Prior Consistent Statements at 197, citing R v George (1985), 23 CCC (3d) 42 (BCCA), 1985 CanLII 657 (BC CA); see also, Dinardo at para 37. While not central to the arguments made on this appeal, we note this Court has held that if a prior consistent statement is not truly essential to understanding the unfolding of material events it should not be admitted as narrative: R v Hoffman (1994), 155 AR 275 (CA) at para 13, 32 CR (4th) 396; see also R v DK, 2020 ONCA 79 at para 37, leave to appeal to SCC refused, 39107 (2 July 2020), and R v MC, 2014 ONCA 611 at paras 64 and 91. We need not determine whether the complainant’s text messages properly qualify as ‘narrative’ to decide this appeal. Nothing in these reasons should be taken as deciding that question. We simply caution that where a prior consistent statement is offered as ‘narrative’, the analysis ought to occur. Otherwise, the narrative exception to the general rule against the admission of prior consistent statements risks becoming an exception through which unnecessary and unreliable evidence is admitted for no clear purpose, compromising trial fairness.
[20] The Crown maintained that the statements made by the complainant in her text messages were conveyed in circumstances where the possibility of concoction could be disregarded…
[21] The Crown’s argument in relation to the alternative use that could be made of the text messages pursuant to the narrative as circumstantial evidence exception to the prior consistent statement rule proceeded as follows. First, Crown counsel explained that evidence about “who was told — not what was told, necessarily at all, but who was told and, you know, what happened and then why it ended up at the police … in terms of that unique kind of reality about sexual violence prosecutions … is customarily received and accepted”. Counsel acknowledged that details of what was said were “[n]ot admissible, not helpful” because “somebody can say a hundred times before coming to the witness box that this happened to me, you can say it to a hundred different people and so on, and that doesn’t assist at all in the trier’s evaluation of the credibility and the reliability of the — in [trial] testimony of a witness”. However, he argued that in circumstances where there is an “overlap in time” in the communications and alleged events, the evidence has a “special ability to be received and used and utilized by the trier [of fact]”. Counsel then went back to review the details of what the complainant said in her text messages and concluded by advising the trial judge that in light of the context described by the complainant in her trial testimony, the trial judge should consider the statements made by the complainant in the text messages as a “classic cry for help”. This, the Crown said, was “extremely relevant” in assessing the complainant’s testimony. The timing of the text messages and the fact that the content of the text messages was consistent with the complainant’s in-court testimony gave the text messages “power as a piece of evidence to assist in the search for the truth in evaluating [the complainant’s] credibility and reliability”.
[22] The trial judge decided that…
…. the text messages stating, “I need your help” “Extreme SOS I am so upset” and “I need you” “I need to see you” followed by “I could fight my way out” were not ambiguous and were “spontaneous and contemporaneous and reliable enough to warrant consideration on the basis of narrative as circumstantial evidence”: Castro-Wunsch at paras 266-267. Relying primarily on R v Langan, 2019 BCCA 467 (Chief Justice Bauman in dissent), rev’d 2020 SCC 33, the trial judge reasoned at para 226 that:
Justice Bauman’s decision in Langan was adopted by the Supreme Court of Canada and is therefore the leading authority on the ability of trial judges to draw inferences from the fact, timing, and circumstances of prior consistent statements, specifically, text messages as evidence in sexual assault cases….
… potentially relevant and useful evidence being excluded.
[23] She concluded at paras 268 to 271:
The texts cannot be relied upon to prove that AB was telling the truth at trial, simply because she said the same or similar things in her texts to [her friend]; that would obviously be an impermissible use for prior consistent statements. As per the Langan decision, the texts can be relied on to support AB’s credibility because the fact, timing, and circumstances of the texts yield useful inferences regarding the truthfulness and reliability of her in-court testimony (at para 95)….
…Having considered [the text messages] in the context of the evidence of both AB and Mr. Castro-Wunsch, I find the text messages between AB and [her friend] support reasonable inferences about AB’s state of mind the day of the alleged assault, which in turn, contribute to AB’s credibility overall.
… Most importantly, they are some indication that AB did not subjectively consent to what was happening at the office that day. [emphasis in original]
Analysis
[24] The trial judge recognized that prior consistent statements are presumptively inadmissible because “repetition does not, and should not be seen to, enhance the value or truth of testimony” and “consistency is not the same as accuracy”: R v Ellard, 2009 SCC 27 at paras 31 and 42. They also pose a risk to the fact finding process because of “the risk of fabrication: no one should be allowed to create evidence for him or herself”: R v NP, 2021 BCCA 25 at para 11, citing S.N. Lederman, A.W. Bryant and M.K. Fuerst, The Law of Evidence in Canada, 5th ed (Markham, Ont: LexisNexis Canada, 2018) at 7.3. As Paciocco noted in Prior Consistent Statements at 182:
Not only is it ordinarily impermissible for litigants to call evidence proving directly that their witnesses gave prior consistent statements, it is generally improper for lawyers to offer evidence that is relevant only because it indirectly discloses that a witness has previously made the same claim.
[25] Even where an exception to the rule against prior consistent statements applies, “such evidence cannot be used for the prohibited inference that consistency enhances credibility, or the incorrect conclusion that the simple making of a prior consistent statement corroborates in-court testimony”: R v Khan, 2017 ONCA 114 at para 41 citing Prior Consistent Statements at 199, leave to appeal to SCC refused, 37534 (3 August 2017) (Khan ONCA).
[26] It is helpful to remember that prior consistent statements have two separate elements: a hearsay element and a declaration element: Prior Consistent Statements at 184, cited in Khan ONCA at para 26; see also, Modern Criminal Evidence at 227 and R v Gill, 2018 BCCA 275 at para 67. The hearsay element refers to the substance or testimonial value of the statement’s content and the declaration element refers to the fact that the statement was made. If the hearsay element is admitted, it is available “as a statement of fact offered to prove that the fact claimed by the statement is true”: Prior Consistent Statements at 184. If the declaration element is admitted, it “is proof that a statement was made, and allows a trier of fact to derive appropriate inferences from the fact and context in which the statement was made”: Khan ONCA at para 26, citing Prior Consistent Statements at 184. As noted in Prior Consistent Statements at 184, difficulty sometimes arises because:
[n]aturally, when the “declaration part” of the evidence block is put on the scale, the decision-maker necessarily learns what the declaration was, at least in general terms, but unless it is accompanied by the “hearsay block” the law forbids the decision- maker from using that declaration as if it was the equivalent of testimony claiming that a fact is true. It can only be used to prove that the statement was made and to derive appropriate inferences from the fact and context in which the statement was made.
[27] As noted at paragraph 37 of Dinardo:
… [t]he challenge is to distinguish between “using narrative evidence for the impermissible purpose of ‘confirm[ing] the truthfulness of the sworn allegation’” and “using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility” McWilliams’ Canadian Criminal Evidence (4th ed. (loose-leaf)), at pp. 11-44 and 11-45 (emphasis in original); see also R. v. F. (J.E.) (1993), 1993 CanLII 3384 (ON CA), 85 C.C.C. (3d) 457 (Ont. C.A.), at p. 476).
[28] This is where the trial judge fell into error. The trial judge noted the limited use she could make of prior consistent statements pursuant to the narrative as circumstantial evidence exception, but then in assessing the truthfulness and reliability of the complainant’s in-court testimony she veered back in the direction of the hearsay rule and drew inferences that rest on the truth of the statements made by the complainant in her text messages. [Emphasis by PJM]
[29] … In this case (and leaving aside whether the complainant’s text messages were properly admitted as narrative), the trial judge did describe how she used them.
[30] Based upon the evidence she had about the timing and circumstances surrounding the text messages, the trial judge decided she could not rely on the hearsay part of the text messages to decide whether the complainant “was upset and scared, that she did want help, [and] most significantly, that Mr. Castro-Wunsch had sexually assaulted her” as described by the complainant in her trial testimony: Castro-Wunsch at para 265 [emphasis in original]. The indicia of reliability that would allow the trial judge to disregard the possibility of fabrication were not present.
[31] She went on to interpret certain of the complainant’s text message statements to be an unambiguous request for help and indicated that they, and others, supported “reasonable inferences about [the complainant’s] state of mind the day of the alleged assault”: Castro-Wunsch at para 271. What state of mind question was the trial judge trying to answer with reference to the complainant’s text messages? This issue is part of the analysis because where the basis upon which prior statements are admitted is that they afford circumstantial evidence of the declarant’s state of mind, “that state of mind must itself be relevant in the proceedings”: MC at para 63, citing R v Mathisen, 2008 ONCA 747 at para 104.
[32] There was no issue about whether the complainant reached out to her friend for help. That was not disputed. There was conflicting evidence about whether she was crying and panicked during parts of the day. Beyond this, however, the central issues in dispute were whether the complainant consented to the sexual activity in question and relatedly, why she sent the text messages she did to her friend. Although the trial judge did not articulate it this way, it is apparent she looked to the complainant’s text messages to assess the truthfulness of her sworn evidence in relation to these questions.
[33] The trial judge concluded that the text messages were of assistance because they conveyed: the complainant’s “fear, confusion, and disbelief” about what had happened or was happening; her desire to leave the situation; and, “most importantly” the fact that she “did not subjectively consent to what was happening at the office that day”: Castro-Wunsch at para 271. Despite her hearsay ruling that the statements could not be admitted “for the truth of their contents (i.e., that she was upset and scared, that she did want help, [and] most significantly, that Mr. Castro-Wunsch had sexually assaulted her)” (Castro-Wunsch at para 265 [emphasis in original]), the trial judge plainly read some or all of the complainant’s text messages as truthfully conveying the same things she said during her testimony. In this way, the trial judge relied on the text messages for the truth of their contents, erroneously allowing them to corroborate the complainant’s testimony. [Emphasis by PJM]
[35] In fairness to the trial judge, distinguishing between the permissible and impermissible uses of prior consistent statements is difficult, particularly when applying the narrative as circumstantial evidence exception: DK at para 44, citing Dinardo at para 37 and Sidney N. Lederman, Alan W. Bryant, and Michelle K. Fuerst, The Law of Evidence in Canada, 5th ed (Markham, Ontario: LexisNexis, 2018) at 448. The general statements made by counsel to explain how the text messages might assist the trial judge did not help: see DK at para 45.
[36] … While “[t]here is a more robust use that can be made of narrative evidence in some cases” (Prior Consistent Statements at 199), the situations in which the narrative as circumstantial evidence exception may be relied upon are limited and in no event can prior consistent statements admitted pursuant to this exception be used for a hearsay purpose; that is, as a form of self-corroboration: NP at para 15 citing Gill at para 76.
[37] To have a permissible use, the fact of and circumstances surrounding the “declaration part” of the text messages had to have some “independent cogency” or probative value in relation to the reliability and credibility of the complainant’s testimony: Khan ONCA at para 39. This was the case in Gill (upon which Chief Justice Bauman in Langan relied). The central issue at trial was whether the accused was acting in self-defence at the time of a shooting. The issue addressed on appeal was whether the accused’s out-of-court statement to his niece “I was stabbed”, allegedly made during a drawn-out altercation in which the accused was involved, should have been admitted in aid of the accused’s claim of self-defence. It was common ground that the trial judge misapprehended the niece’s evidence on this factual issue and therefore failed to consider how the evidence might have been used to support the accused’s in-court testimony and self-defence claim. The British Columbia Court of Appeal held at paragraph 64 that had the niece’s evidence been correctly understood, resolution of its admissibility would have turned on the application of the narrative as circumstantial evidence exception to the rule against prior consistent statements, and that it would have been open to the trial judge:
… to admit [the niece’s] evidence under this exception for the limited and permissible purpose of showing the fact and timing of the appellant’s complaint that he had been stabbed, which evidence could assist the trier of fact in assessing the truthfulness of the appellant’s in-court testimony: R. v. Dinardo, [2008] 1 S.C.R. 788, 2008 SCC 24 at para 37.
[38] The court confirmed that the statement would not have been admissible for the truth of its contents or to enhance the accused’s credibility by mere repetition. Rather, the statement could only have been used “for the limited purpose of assessing the credibility and reliability of the [accused’s] evidence that he was attacked and stabbed before the shooting. The context in which the statement was made [- the fact and timing of it -] was capable of grounding an inference that the [accused’s] in-court version of events was more worthy of acceptance”: Gill at para 85.
[39] …In the context of the narrative as circumstantial evidence exception, a reference to content is merely a reference to what was said.
[40] The probative value or “independent cogency” of the complainant’s text message statements in Langan did not lie in the truth of what she said or in the fact that she had said the same thing previously. Rather, it was the fact, timing, and context of her statements that helped resolve a specific credibility issue in relation to the complainant’s narrative of events. Chief Justice Bauman noted at para 102, “the complainant’s consistency in telling her story of how ‘she came to the realization as to what had occurred without her consent, and her reaction to the same’ was a contested issue” at trial. He was satisfied the trial judge made permissible use of the text messages to “assess the conduct of the complainant and her truthfulness in describing it, particularly when the defence used those messages to attempt to contradict her narrative of events and diminish her credibility”: Langan at para 102. Here again, the text messages yielded specific, permissible inferences supporting the truthfulness and reliability of the complainant’s in-court testimony.
[41] The trial judge in this case did not use the complainant’s text messages to draw specific, permissible inferences of credibility. Rather, she interpreted the complainant’s text messages as confirming the truthfulness of her sworn allegations.
Conclusion
[42] The trial judge fell into error by using the text messages for the truth of their contents, offending both her hearsay ruling and the rule that bars the use of prior consistent statements as corroborative of a witness’s sworn evidence.
[43] The appeal is therefore allowed, the conviction is set aside, and a new trial is ordered.
R v RG, 2023 ONCA 343
[May 15, 2023] Reopening the Defence [Reasons by Fairburn A.C.J.O. with Doherty and L. Favreau JJ.A. concurring]
AUTHOR’S NOTE: Sometimes circumstances allow for a re-evaluation of the defence at trial after a conviction but before a sentence is imposed. Either new counsel or old counsel come upon new evidence and wish to introduce it to the court to undo the conviction. This is a remedy that is rarely successful. This case is one of those exceptional circumstances where this was successful. New counsel for the defence sought and obtain cell tower/phone use records of the accused’s phone that undermined central testimony of when and where sexual assault allegations were said to have happened. The compelling nature of this evidence was the major push factor in allowing a new trial on appeal on the basis that the trial judge should have re-opened the defence.
OVERVIEW
[1] A trial judge sitting without a jury has the jurisdiction to vacate an adjudication of guilt and reopen a trial prior to the imposition of sentence. For good reason, this is rarely done. In determining whether to invoke this jurisdiction, the trial judge will consider numerous factors, including whether the defence has exercised due diligence during the trial proper. In exceptional cases, the cogency of new evidence will be so strong that, despite a failure of due diligence, the interests of justice will demand that the finding of guilt be vacated and the trial reopened. This is one of those rare, exceptional cases.
[2] The appellant stands convicted of numerous offences arising from the sexual abuse of his daughter….
[3] At trial, the appellant’s strategy was to challenge the complainant’s evidence using what were said to be multiple prior inconsistent statements and conflicting disclosures to different people. The defence also proffered a motive to fabricate, one rooted in the suggestion that the complainant disliked her father and was concerned that he and her mother may rekindle their relationship. The appellant did not testify.
[4] As reflected in the reasons for judgment, the verdicts turned largely, if not exclusively, on the trial judge’s acceptance of the complainant’s credibility.2 The appellant does not allege any error in the reasons for judgment.
[5] Between the verdict and sentencing, the appellant discharged his counsel and retained a new one. The new counsel moved to obtain the appellant’s cell phone records for a period of time that captured the last alleged offence. As the complainant’s phone was registered to her father’s Rogers Communications Canada Inc. (“Rogers”) account, her phone records were included in the package of documents returned from Rogers. The phone records were accompanied by an affidavit from a Rogers employee, explaining their meaning.
[6] As these reasons will detail, the phone records rest uneasily with some critical aspects of the complainant’s evidence at trial. Taken at their highest, the phone records suggest that the appellant was not at the location of the fifth alleged incident.
[7] Prior to sentencing, the appellant moved to reopen the trial and asked that a mistrial be declared. The trial judge dismissed the application and then put the matter over for sentencing. Ultimately, the appellant was sentenced to 10 years imprisonment less time served.
[8] … Therefore, the appellant asks that we set aside the verdicts and order a new trial, where all relevant evidence can be considered.
[9] For the reasons that follow, I would accede to this request.
BACKGROUND
The Allegations
[10] The incidents of sexual assault span from sexual touching over the complainant’s clothes to forced sexual intercourse.
[15] Counts 10 and 11 – The final incident is said to have occurred on October 3, 2019, when the complainant was just shy of her 17th birthday. The sexual assault was said to have taken place in a Tim Hortons parking lot. The complainant testified that her father called her and asked that she meet him at that location. Once there, he entered her car. The complainant said that he cut her with a knife, “just above the hairline of [her] vagina”, close to an incision from a prior recent surgery. She testified that he then directed her into the back seat of his truck, where he had forced sexual intercourse with her. I will refer to this fifth incident as the “Tim Hortons incident”. It is central to these reasons.
The Reasons for Judgment
[16] The trial judge provided detailed reasons for judgment. There is no challenge to those reasons on appeal.
[22] In her reasons for judgment, the trial judge carefully considered the complainant’s evidence against all of the evidence in the case. She spent significant time considering the nature of the contradictory and sometimes intermittent disclosures that had been made. She demonstrated a keen understanding of the fact that victims of sexual violence disclose in different ways and at different points in time. The trial judge was alive to this fact and expressed the well-accepted phenomenon that there is no one, expected way to disclose sexual violence. As the trial judge said:
There is no correct or typical way in which to report allegations of sexual abuse. It is often a burden that is not easily shed.
[23] Nothing in these reasons should be taken as challenging that inherently correct observation.
[24] Having considered all of the evidence, including the direct challenges to the complainant’s evidence, the trial judge explained why she nonetheless accepted that the complainant was telling the truth. In the end, having explained why she accepted the complainant’s version of events, the trial judge found the appellant guilty based on that evidence:…
[25] The matter was then put over for sentencing.
The Evidence in Support of the Application to Reopen and Set Aside the Verdicts
[26] Prior to sentencing, the appellant retained new counsel who brought an application to reopen the trial. The application rested on three affidavits that I will now briefly review.
Affidavit of Danielle Fortier: The Cell Phone Records
[27] Danielle Fortier is a manager working within the Rogers’ Lawful Access Response team. She swore an affidavit explaining the content of the appellant’s cell phone records which were attached as an exhibit to her affidavit (the “Fortier affidavit”). Those records spanned the billing period from September 13 to October 12, 2019. The records include entries for both the appellant’s and complainant’s phones as they were associated to the same account.
[28] The records attached to the Fortier affidavit are said to be important because they include two critical dates. First, they include the time period when the Tim Hortons incident was said to have taken place. Second, they include the time period when the appellant is said to have sexually assaulted the complainant on another occasion, an event that never formed the subject of a charge (the “uncharged incident”). The finer features of the phone records will be explained in more detail later in these reasons when I address the cogency of the evidence. For now, I will just provide the general context.
I Phone Records Informing the Tim Hortons Incident
[29] What is important for now is that there was and is no dispute about the following: (1) the appellant’s phone records do not support the complainant’s suggestion that the appellant called her to instruct her to meet him at the Tim Hortons; (2) the complainant’s phone records do not support her suggestion that she received a call from the appellant – or anyone for that matter – at the time when she says the appellant called her to instruct her to meet him at the Tim Hortons; and (3) the appellant’s phone was not near the geographical location where the Tim Hortons incident was said to have occurred at the time that it was said to have occurred.
II Phone Records Informing the Uncharged Incident
[30] A week before the Tim Hortons incident is said to have occurred, the complainant told her boyfriend’s mother about an incident that had taken place with the appellant about two weeks earlier. The boyfriend’s mother (a civilian) took contemporaneous notes of the conversation. Those notes formed part of the reopening application. The complainant told the boyfriend’s mother that the appellant had called her school and asked that she be released from class.
[31] When she emerged out the front door of the school, the appellant was standing in front of his truck. She told the boyfriend’s mother that he drove her to a gravel road, handcuffed her, had intercourse with her and then dropped her at home. The complainant also told the boyfriend’s mother that she went to a clinic later that day and told them that she had been “raped by her dad” and that the nurse “administered a rape kit [and] gave her the kids help phone number.”
[35] Even though no charges were ever laid, the appellant points to phone records that are said to wholly contradict the complainant’s allegations about this sexual assault. In particular, the phone records show that the appellant’s phone never made the call suggested and, indeed, was well-removed from the geographical location where the sexual assault is said to have occurred when it is said to have occurred. The appellant says that these records raise additional, serious concerns about the complainant’s credibility.
Affidavit of Trial Counsel
[36] Trial counsel also provided an affidavit for purposes of the reopening application. Defence counsel explains that no one obtained the cell phone records: not the defence, the Crown or the police. Notably absent from counsel’s affidavit is any effort to explain why he failed to turn his mind to those records and attempt to retrieve them.
[37] In any event, trial counsel explains that had he obtained the records prior to or during the trial, it would have changed his strategy.
[38] Counsel did not advise his client to testify. If he had known what the records establish, he would have done so. In counsel’s view, the records are so powerful that they could have bolstered his client’s confidence when testifying. They also would have helped to establish what counsel describes as an “alibi” for the Tim Hortons incident.
[39] As well, counsel explains that the records clearly undermine the complainant’s credibility, revealing deep fabrications relating not only to the Tim Hortons incident, but also to the uncharged incident. He would have used the records to cross-examine the complainant on those matters.
[40] As for the uncharged incident, counsel acknowledges that he chose not to cross-examine the complainant in relation to it. Despite her admitted lie in relation to having attended at a clinic to have a “rape kit” administered – the clinic lie – cross-examining on this matter would have resulted in the complainant testifying about what she still maintained was a serious sexual assault in relation to the uncharged incident. Therefore, it is not surprising that counsel chose not to cross- examine on the clinic lie.
[41] Counsel attests to the fact that, with the independent phone evidence in hand, not only could he have exposed the serious clinic lie, but he could have also exposed the even more serious lie about the conduct that allegedly preceded the fabricated clinic visit. These matters are said to go to the heart of the complainant’s credibility.
Affidavit of the Appellant
[42] Finally, the appellant swore an affidavit.
[44] The appellant suggests that if his counsel had advised him to testify, he would have done so. He also advises that he found the verdict “shocking” and “hard for [him] to process” because he has “never touched” the complainant for a sexual purpose. He denies having been in the small town where the Tim Hortons is on October 3, 2019.
[46] The appellant attests to the fact that his phone is passcode protected and was “continuously and exclusively in [his] possession and control.”
[47] The appellant claims that he used this phone as his “sole means of communicating with others, including [the complainant’s mother] and [his] two children.” He did not have a residence line. He further attests that he “would not have left [his] residence in Caledon, Ontario without [his] cell phone.”
Positions of the Parties on the Reopening Application
[48] The appellant urged the trial judge to reopen the trial. Ultimately, he was seeking a mistrial. While the appellant acknowledged that he had a problem with due diligence, this evidence clearly having been available prior to verdict, he maintained that the cogency of the records was so forceful that the verdicts could not stand.
The Ruling
[51] Ultimately, the trial judge concluded that, while the cell phone evidence was admissible and had “potential probative value”, from a cogency perspective, it “would not be decisive or potentially decisive on its own.” As well, the appellant had chosen his trial strategy and the reopening application was a transparent attempt to reverse that tactical decision. The application was dismissed.
ANALYSIS
The Law on Reopening
[52] Trial judges sitting without a jury are not functus officio until after sentence is imposed or the case is otherwise disposed of. To be sure, a trial judge sitting without a jury can vacate an adjudication of guilt prior to sentence or other final disposition: R. v. Lessard (1976), 30 C.C.C. (2d) 70 (Ont. C.A.), at p. 73. But to be equally sure, this jurisdiction should be exercised only in “exceptional circumstances” where “its exercise is clearly called for”: Lessard, at p. 73. This is a rare power and no one should expect a do-over: R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at para. 23.
[53] Since the trial judge is operating within an area of discretion when deciding whether to reopen a case, the decision is entitled to significant deference on appeal unless of course the decision is infected by legal error, a material misapprehension of evidence or is unreasonable: R. v. M.G.T., 2017 ONCA 736, 357 C.C.C. (3d) 109, at para. 55; R. v. Kippax, 2011 ONCA 766, 24 M.V.R. (6th) 1, at para. 64, leave to appeal refused, [2012] S.C.C.A. No. 92; and Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 777. Here, the appellant maintains that the decision is infected by legal error. I will explain those errors shortly below.
[54] The Palmer test for the admission of fresh evidence on appeal guides the analytical approach on applications to reopen. The four-part Palmer test, at p. 775 of that decision, is well-established:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief.
(4) The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[55] Over time, this test has been distilled into three helpful broad considerations: (1) is the evidence admissible under the operative rules of evidence (the admissibility component); (2) is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict (the cogency component); and (3) does the party seeking its admission offer a satisfactory explanation for the failure to adduce it at trial (the due diligence component): R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92.
[56] There is no dispute in this case that the cell phone records constitute admissible evidence. The core question was whether the cogency of those records outstripped the serious failure when it came to due diligence.
The Alleged Errors
Cogency Error
[58] While the appellant acknowledges that the trial judge correctly summarized the law of cogency in the portion of her reasons entitled “Governing Principles”, he says that when it came to her application of those principles, she misstated the law. I agree.
[59] In the analysis portion of her reasons, entitled “Application of Governing Principles”, the trial judge considered the admissibility and cogency of the cell phone evidence in three short paragraphs. The first two paragraphs describe the cell phone records and address issues of admissibility, none of which was or is in dispute. Then, in a single sentence, she addressed cogency. This is what the trial judge said about the cogency of the cell phone evidence: “The cell phone evidence has potential probative value but would not be decisive or potentially decisive on its own.” In her concluding remarks, the trial judge came back to cogency and said this: “This is not a scenario where the cell phone evidence stands on its own or would be potentially decisive on its own.”
[60] I agree with the appellant that both statements reflect an erroneous approach. The question was not whether the cell phone records were “decisive or potentially decisive on [their] own.” The question was whether those records bore upon a decisive or potentially decisive issue at trial and whether, if believed, the records could reasonably, when taken with the rest of the evidence adduced at trial, be expected to have affected the result.
[61] Undoubtedly, the cell phone evidence bore upon two decisive issues at trial: (1) whether the Tim Hortons incident occurred, and (2) the complainant’s credibility, which was central to all of the verdicts: R. v. T.S., 2012 ONCA 289, 284 C.C.C. (3d) 394, at paras. 116, 133-37. To properly calibrate the cogency of the cell phone evidence, it was necessary to consider what those records could establish and whether, when taken with all of the evidence at trial, they could reasonably be expected to have affected the result.
Due Diligence Error
[64] … I cannot accept the trial judge’s repeated observation that the application to reopen was an attempt to reverse “tactical decisions made at trial.” While it is true that the appellant chose not to testify after the trial Crown closed her case, given the new evidence, it is clear that the appellant made that decision without knowing that, if he had taken the stand, the cell phone records could have provided some important corroboration for his denials.
[65] While one can certainly take issue with the defence failure to obtain the records, accurately described as a failure in due diligence, it is not accurate to say that the application to reopen the trial was an after-the-fact attempt to reverse earlier tactical decisions. This is because there was no strategic reason for why the defence would not have obtained and reviewed the cell phone records to consider whether to adduce them at trial. Indeed, no such reason is suggested by the respondent on appeal.
[66] Therefore, the reopening application was not an attempt to revisit an earlier tactical decision. Whatever caused the failure in due diligence – human error, oversight or otherwise – the problematic defence conduct is not rooted in a tactical decision. Accordingly, in the end, it really comes down to the fact that the failure in due diligence deprived the appellant of information that could have allowed the appellant to make more informed decisions about how to proceed on fundamental issues central to the trial.
Should a New Trial be Ordered?
Does the evidence bear upon a decisive or potentially decisive issue at trial?
[68] As already noted, the cell phone records bear upon two decisive issues in this case: (1) whether the Tim Hortons incident occurred, and (2) whether the complainant is credible.
Is the evidence reasonably capable of belief?
[69] Undoubtedly, the cell phone records are credible evidence. Indeed, cell phone records form the backdrop to many prosecutions, ones that are reliant upon establishing the general whereabouts of accused at certain points in time: R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, at para. 260, leave to appeal refused, (2012), [2011] S.C.C.A. No. 547 (Hamilton), [2012] S.C.C.A. No. 46 (Reid), [2012] S.C.C.A. No. 151 (Schloss), and [2012] S.C.C.A. No. 166 (Davis). There is no suggestion that the Fortier affidavit, appending the Rogers records, is anything but credible.
[70] As for the appellant’s affidavit, it was left entirely unchallenged by the Crown. While I completely discount his late-in-the-day denials of the offences, for purposes of this appeal, I would give weight to his evidence regarding the use he made of his phone.
[71] The appellant’s claims about how he used his phone are fully consistent with other aspects of the record on appeal. Specifically, I am referring to his claim that he had his phone “continuously and exclusively” in his possession and control and that he used it as his “sole means of communicating with others”, including the complainant. This assertion accords with a few pieces of evidence at trial and with other aspects of the record filed at the reopening application:
(1) The complainant’s mother testified that she communicated with the appellant, on that phone, at that number. This is the only number she had for him.
(2) The complainant testified that this is how she communicated with the appellant, on that phone and at that number.
(3) When the appellant was arrested in his vehicle, the phone was affixed to the dashboard of his truck. It was the only phone in his possession at the time of arrest.
(4) The mother’s text communications, as elicited in evidence at trial, were with the appellant on that phone.
(5) There were multiple events testified to at trial, and discussed with the police, that correspond to the appellant’s cell phone records, suggesting that he always carried that phone and used it as he says he did. For instance, the police were provided with information that the appellant was in the small town where the complainant lived on September 30, October 1 and October 4, 2019. His cell phone records match exactly with that information. In other words, the appellant’s phone registered on cell towers in and around the small town where the complainant lived on the very dates he was said to be there. That is, of course, with the exception of the Tim Hortons incident and the uncharged incident.
(6) There is no evidence to suggest that the appellant ever used a different phone.
[72] Accordingly, for purposes of the appeal, I would accept the appellant’s unchallenged evidence respecting his phone.
Is the evidence sufficiently probative that it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result?
[74] The respondent posits that the records do not account for the fact that the appellant may have called the complainant using a means other than a traditional phone call from one cell phone to another. Respectfully, I cannot accept this submission for several reasons.
[75] Again, the assertions made by the appellant in his affidavit stand unchallenged by the Crown. Likewise, the trial Crown chose not to cross-examine on the Fortier affidavit, attempting to elicit information about whether non- traditional means of communication would be missing from the cell phone records. Nor did the trial Crown proffer any evidence on this point.
[77] Finally, the cell phone records themselves stand in opposition to the suggestion that the appellant and complainant may have communicated other than through a traditional call from one cell phone to another. The records actually reveal occasions where these communications clearly took place.
[79] So, what do the cell phone records show us?
I Tim Hortons Incident: October 3, 2019
[84] Importantly, the trial judge’s reasons speak to her concerns over the Tim Hortons allegations. Indeed, about half of the lengthy reasons for judgment are devoted just to that incident, demonstrating the length of time that the trial judge spent assessing and reconciling the complainant’s evidence respecting this incident.
[85] While the trial judge found it “difficult to reconcile the complainant’s disclosure of sexual intercourse in her father’s truck”, she ultimately accepted the complainant’s explanation for why she had been previously inconsistent in her version of events. That explanation included that the complainant found the initial period of disclosure chaotic and blurred and that she struggled to provide all details at once.
[86] I do not make these observations to cast any doubt on the trial judge’s findings. They were open to her to be made. My simple point in recounting the challenges that this evidence presented, is to highlight that the new evidence relates to an alleged incident that was already riddled, on the trial judge’s own account, with credibility concerns that cried out for resolution.
[92] First, the appellant’s phone records show no call to the complainant’s phone on October 3, 2019. Indeed, the Fortier affidavit is clear that there are no connected calls between the complainant’s and appellant’s phones on October 3, 2019.
[93] Second, while the complainant’s phone record shows two calls on October 3, 2019, only one is an incoming call to the complainant’s phone. That call is received over two hours before she says she received the appellant’s call. Indeed, it is received before she even left her home to go and pick up her boyfriend from work. That call, which is from an unidentified number, lasted for 14 minutes in duration, much longer than an instruction to go to the Tim Hortons parking lot.
[94] Third, the appellant’s phone made and received numerous calls on October 3, 2019. At no time was his phone registering on a cell tower close to the town where the Tim Hortons incident is said to have occurred. To the contrary, the appellant’s phone received and made calls while registering on one or more cell sites in the local calling area of Toronto at: 7:55 p.m., 7:58 p.m., 8:39 p.m., 9:18 p.m. and 10:41 p.m. The appellant lived in Caledon. The Fortier affidavit demonstrates that the “‘Toronto’ local calling area encompasses several municipalities including Caledon Ontario.”
[95] Fourth, Google maps were filed at the application. They demonstrate that it would take a minimum of 1 hour and 13 minutes to drive between where the appellant lived in Caledon to the small town where the complainant lived and the Tim Hortons was located. The appellant’s home was covered by the “Toronto” calling area. The town where the complainant lives and where the crime is said to have occurred, is on a trajectory from Caledon away from the Toronto calling area.
[96] Therefore, to wrap up on this point, if it was the appellant using his password protected phone in the “Toronto” calling area on October 3, 2019, especially at 10:41 p.m., he was not at the Tim Hortons parking lot minutes later when the offence is said to have occurred. Nor do his records show him calling the complainant. Nor do the complainant’s records show receipt of a call from him.
[97] In my view, this is highly cogent evidence that, when taken with the other evidence adduced at trial, could be expected to have affected the result, at a minimum as it related to the Tim Hortons counts.
[98] I am not suggesting that there is no explanation for this evidence or that it may not be explained through other evidence. But the Crown chose not to challenge this evidence and chose not to rebut it with other evidence. In the circumstances, the evidence creates a significant concern about the safety of the convictions relating to the Tim Hortons incident. It also raises concerns about the most central issue at trial: the complainant’s credibility. This takes us to the cogency of the evidence as it relates to the uncharged incident.
II The Uncharged Incident: September 16, 2019
[99] The appellant also argues that the cell phone evidence undermines the complainant’s credibility at a more general level because it reveals that she was prepared to fabricate a serious sexual assault that never happened, an allegation where she had already been caught in a significant lie – the clinic lie.
[100] The key point for purposes of the reopening application is that, with the assistance of the complainant’s mother, police concluded that there was only one date on the school attendance records when this alleged offence could have occurred: September 16, 2019. The difficulty is that the appellant’s phone records do not support the complainant’s account, specifically that her father called her school, pretended to be her mother, and asked that she be released from the school.
[101] OnSeptember16,2019, the appellant’s phone did not call the complainant’s school and was nowhere close to the complainant’s school. Indeed, at the critical juncture, between noon and 5:30 p.m., the appellant’s phone was used many times, but it was using cell phone towers located in Toronto, Milton, and Orangeville, none of which are close to the town where the complainant attended school.
[102] While the September 16, 2019 incident was uncharged, I agree with the appellant that, left unexplained, the cell phone records could shake one’s confidence in the complainant’s account of what occurred. Notably, this is in relation to an alleged incident where the complainant had already admitted to a significant fabrication about attending the clinic.
The Application of Due Diligence
[105] Therefore, as in Palmer, evidence should generally not be admitted on a reopening application where, through due diligence, it could have been adduced during the trial proper. At the same time, as this court and the Supreme Court have repeatedly noted, from time-to-time in criminal cases, failures to exercise due diligence will bend to cogency, especially where miscarriages of justice loom: R. v. Kowall (1996), 108 C.C.C. (3d) 481 (Ont. C.A.), at pp. 493-94, leave to appeal refused, [1997] 1 S.C.R. viii; R. v. Warsing, [1998] 3 S.C.R. 579, at p. 592; R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at para. 8; R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at paras. 64-67; and R. v. Reeve, 2008 ONCA 340, 233 C.C.C. (3d) 104, at paras. 83-89. In other words, due diligence is not a precondition to admissibility: Truscott, at para. 93. As noted by Rothstein J. at para. 67 of Hay, where the appellant sought the admission of evidence on appeal that his trial counsel had not inquired into:
In general, mere lack of knowledge on the part of trial counsel without any indication that he inquired into the possibility of obtaining and presenting the evidence is a factor against admitting the evidence for the first time on appeal: McMartin, at pp. 490-91. However, [since] this is a criminal case, involving charges of the most serious nature, I would not allow the evidence to be excluded solely [based on] a lack of diligence.
That is precisely this case.
[106] The complainant presented with significant challenges when it came to credibility. She was cross-examined at length on key aspects of prior inconsistent statements and the course of her disclosures. The trial judge did her duty, confronted those challenges and ultimately resolved them in favour of finding the complainant credible. Findings of guilt flowed directly from the resolution of those credibility issues.
[107] Then new counsel came on the record and obtained what had been obtainable all along but had not been inquired into. Understandably, the trial judge spent a significant portion of her reasons dismissing the reopening application on the defence’s failure on due diligence. I agree with the trial judge that “[w]ith the exercise of due diligence, the proposed evidence could have been adduced at trial and/or formed the basis for cross-examination of crown witnesses.” But that is not the whole picture.
[108] On a reopening application, the more cogent the admissible, credible new evidence is, the more due diligence will bend. This will only happen in very rare cases. As I see it, this is one of those very rare cases. Despite the clear lack of due diligence in this case, in the sense that the defence did not pursue what was pursuable, I remain focused on the fact that there is no plausible explanation for why the defence would not have obtained and reviewed this evidence. The failure to obtain and review this seemingly powerful evidence, which has been left unchallenged to date, in order to decide whether to adduce it at trial, simply cannot be described as a strategic choice.
[109] In my view, given the high degree of cogency attaching to the phone records, specifically as they relate to crucial issues that required determination at trial, this is one of those rare and exceptional situations where, in the interests of justice, the verdicts of guilt should have been vacated and the trial reopened.
CONCLUSION
[110] The respondent submitted at the oral hearing that, if this court is inclined to grant the appeal, only the verdicts as they relate to the Tim Hortons incident be set aside. I disagree.
