The Defence Toolkit – November 27, 2021

This week’s top three summaries: R v CG, 2021 ONCA 809: #tainting b/w witnesses, W(D) #reasons, R v Clyke, 2021 ONCA 810: #prosecution closing, and R v Holloway, 2021 ONSC 6136: #police disreputable conduct.

R v CG, 2021 ONCA 809

[November 16, 2021] Collusion: Unintentional Tainting between Witnesses, Need for Reasons on W(D) [Reasons by ]I.V.B. Nordheimer J.A. with David M. Paciocco and J.A. Thorburn JJ.A.  concurring]

AUTHOR’S NOTE: The SCC decision in GF, 2021 SCC 20, has proven to be an incentive for Crown appellants to argue that appellate courts should not dive too deep into credibility rulings made by courts. This decision puts GF in context. The SCC in GF did not direct courts “to overlook or disregard material reasoning errors, nor does it dispense with the need for trial judges to give adequate reasons before stigmatising and punishing someone as a sex offender.” Judges have to address competing evidence – they cannot merely ignore it. Further, there is a distinction between intentional and inadvertent collusion. Justice Nordheimer,  preferring the language of unintentional tainting advised that a finding that this occurred does not necessarily mean the witness is not giving their independent recollection or lying. Further analysis by a judge is required to find that. They must follow the evidence to show where this occurred at the very least. 

In most cases, the collusion analysis herein will work to the detriment of Defence because collusion will be an argument advanced by defence counsel against Crown witnesses. However, it is important to note the contours of such evidence and how they must be analysed. However, the comments on GF are an important counter to suggestions that appellate courts can now take a laissez faire approach to credibility findings at the trial level.

Facts

[1] C.G. appeals from his convictions for sexual assault, sexual interference, invitation to sexual touching and breach of recognizance.1 For the following reasons, I would allow the appeal and order a new trial.

[2] The charges arose out of allegations made by the complainant, TH, who was between the ages of 11-14 years old at the time of the events. The appellant’s and TH’s families were very close. They travelled together and went on vacation together. TH and K, the appellant’s daughter, were cousins and best friends, and would often sleep over at each other’s houses continuously for weeks on end. TH alleged that the appellant had sexually assaulted her during some of her sleepovers with K.

[4] TH’s evidence was that during some of the sleepovers at K’s house, at some point in the night, the appellant would attend the bed where she and K were sleeping, touch TH’s breasts and vagina under her clothes, including digital penetration, and occasionally make her touch and rub his penis, sometimes to the point of ejaculation. He would do this with one hand while standing over TH, never getting into bed with her. No words would be spoken. TH would feign sleep during the assaults.

[7] In terms of the details of the assaults, TH testified that she would repeatedly roll away from the appellant, resisting, in an effort to remain on her stomach. In response, the appellant would forcefully roll her onto her back, again and again, in order to facilitate the assault. TH testified at trial that this occurred notwithstanding that she and K were so close in bed that they were touching. TH testified thatneither K, nor K’s sister, who was in the opposite bed, woke up when this occurred. TH also testified that no one woke when the appellant entered the upstairs bedroom, notwithstanding that there was evidence that the house creaked – most notably, the bedroom’s older flooring loudly creaked when anyone entered.

[8] K’s evidence was that there was no room between her and TH in the bed. When they slept, they were touching each other. She described how the pair would be elbowing one another, or accidentally kick one another, or even roll on top of each other. She testified that inevitably, when this occurred, both woke up – sometimes falling right back to sleep, sometimes not. The Crown challenged K regarding what occurred when one of the pair had to go to the bathroom. K responded that if she had to go to the bathroom, and was against the wall, she would have to climb over TH and invariably wake her up.

[9] TH gave varying evidence about her sleeping position, which she offered to explain how she tried to avoid the appellant’s assaults. On different occasions, she said:

(a)  that she would always ask K to allow her to sleep on the inside of the bed, against the wall, to avoid the appellant having access to her; …

(d)  that it was possible she had asked to sleep on the outside, not the inside, to prevent K from sleepwalking;

(e)  that she may have requested the outside sleeping position to avoid risk to K, notwithstanding her fear of the appellant’s assaults, and notwithstanding she had never seen K sleepwalk in the many times she had slept over.

[10] In contrast, K confirmed that she used to sleepwalk and in the past TH had predominantly slept on the outside, closest to the door. This was at TH’s request and was not K’s preference. K testified that since her move to the basement, things had changed. She no longer sleepwalked. TH and K alternated who slept on the inside, closest to the wall. It was no longer routine for TH to be on the outside. The appellant and his wife both recalled there being some discussion of TH sleeping on the outside of the bed, and believed TH slept on the outside.

[12] All witnesses agreed that the upstairs bedroom had a very creaky floor. This was corroborated by video evidence filed as an exhibit at trial. K testified that, whether upstairs or downstairs, she did not believe it was possible that someone could enter her room without waking her up. K attributed this to the creaky floor, being a light sleeper, the clattering of the clothes hangers on the back of the upstairs bedroom door, the creaky stairs to the basement, and the general way sound travelled in the house.

[13] The appellant testified that his wife was a terrible sleeper, woke up easily, and would ask where he was going if he went to the bathroom during the night. His wife confirmed that she was a poor sleeper, and always woke up when the appellant would get up at night. She indicated that she had never woken up and found the appellant missing from the room. She testified that she did wake up at times because of creaks in the house or because the family dog was moving around. She explained that she usually was the one who investigated these noises, even when the appellant was home.

[14] TH stated that, out of fear of reattending K’s house, she reluctantly told her mother what had happened. She testified that she only went to speak with the police because her mother made her go. She expressed that she delayed disclosing because she was scared it would break up their very close family and that she would not be believed.

[17] One of the issues at trial was the nature and extent of discussions between the defence witnesses. The appellant’s wife testified that the appellant’s trial counsel showed her TH’s police statement while she was in his office with the appellant. The appellant’s wife was shocked by what she learned, because the statement was different from what TH originally disclosed. The appellant’s wife testified that, during long breaks in TH’s video statement, she and the appellant discussed the allegations with trial counsel, including why the allegations could not be true.

[18] The appellant’s wife was cross-examined extensively on what information she shared about the allegations with her children. She indicated that K had overheard a family meeting and was therefore aware of the allegations from the outset. … When her daughters expressed their view that their father was innocent, the appellant’s wife reassured them that she believed this to be true as well.

Trial Judge’s Reasons

[19] … The Crown argued that the defence evidence was unreliable because of the pre-trial discussions that had occurred among the witnesses. Although the Crown was not suggesting that these witnesses had advertently colluded, he did submit that the defence evidence was tainted by “inadvertent collusion”.

Analysis

[26] In my view, the trial judge made three fundamental errors in his reasons leading to the convictions. One error deals with the issue of collusion; the second error deals with the lack of analysis of the competing evidence; and the third error deals with the application of the principles from R. v. W. (D.), [1991] 1 S.C.R. 742.

(1) Collusion

[27]  … First, it is implicit in his comments that the trial judge accepted that the evidence of the defence witnesses was diminished by this “inadvertent collusion”. Yet the trial judge never explains how he took the “inadvertent collusion” into account in his assessment of the defence evidence, apart from stating that he does not dismiss the defence evidence on this ground alone. Second, in spite of his evident acceptance that tainting had occurred, the trial judge failed to explore how the “inadvertent collusion” altered the evidence of each of the defence witnesses, if at all.

[28] As I have intimated, the term “collusion” has been used to describe two different phenomena. The first is deliberate or “advertent collusion”, that is, where witnesses get together and fashion their evidence in concert in order to appear to be reciting a consistent and reliable story. The other, commonly referred to as “inadvertent collusion”, occurs where one witness discusses the events with another witness with the consequence that the evidence of one or both of them may be altered. Put another way, a witness’ evidence may be “inadvertently” impacted by the fact that they have heard the evidence of other witnesses which “can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events”: R. v. B. (C.)(2003), 2003 CanLII 32894 (ON CA), 171 C.C.C. (3d) 159 (Ont. C.A.), at para. 40. This point was made in R. v. F. (J.) (2003), 2003 CanLII 52166 (ON CA), 177 C.C.C. (3d) 1 (Ont. C.A.), where Feldman J.A. said, at para. 77:

The reliability of a witness’s account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people’s stories, which can tend to colour one’s interpretation of personal events or reinforce a perception about which one had doubts or concerns.

[29] While the issue of collusion most often arises when a court is considering the admissibility of similar fact evidence, it is an issue that has relevance to the evaluation of a witness’ evidence in general.

[30] As this case illustrates, it is unfortunate that the term “inadvertent collusion” has been coined. As I will explain, “advertent collusion” affects the credibility of evidence. “Inadvertent collusion”, or accidental tainting, does not do so. …Given that the term “inadvertent collusion” was used during the matter before us, I will continue to refer to “inadvertent collusion” but as I say, that is a term that would best be avoided going forward.

[31] I will begin with advertent collusion. … No court would be comfortable relying on evidence from witnesses who have gotten together and decided on what they are going to say when questioned under oath, at least not without independent corroborating evidence establishing that their evidence is reliable, notwithstanding the collusion.

[32] The second form of collusion, “inadvertent collusion”, is more difficult. The fact that one witness has heard what another witness will say, or for that matter has even discussed what another person’s recollections were, does not mean that either witness is not telling the truth, or is not giving their independent recollection, or that their evidence has been tainted. … For example, in this case, it is possible that when, during the joint meeting with the defence lawyer, theappellant’s wife offered reasons why the appellant could not be guilty, the appellant did innocently incorporate those reasons into his testimony, but that does not mean that his wife’s observations were inaccurate or that her testimony had changed as a result of their discussion. Nor does it necessarily follow that the appellant’s testimony became unreliable. He may have recognized from his own knowledge the truth and importance of what his wife had observed. The key point is that, unlike advertent collusion which corrupts the evidence of all participants, where inadvertent collusion has occurred, a close examination is required to determine what impact that innocent sharing of information may have had on the evidence of each of the witnesses who is a party to the exchange. [Emphasis by PM]

[33] The problem in this case is that the trial judge does not address whether the fact that the defence witnesses discussed the events, thus giving rise to the possibility of inadvertent collusion, did, in fact, lead to one or more of them altering their evidence and, if so, in what respect.

[I]t was the duty of the trial judge in this case, as the trier of fact, to instruct himself to consider the possibility of collusion in his assessment of what effect to give the similar fact evidence in his ultimate decision on the guilt of the accused on the whole of the evidence.

The difficulty in this case is that on the reasons given, we cannot know if he did or did not do so. As such, on this issue, we are left in the position, in the terms used in Sheppard, where we cannot be sure of the path taken by the trial judge. There is more than one view of how the trial judge may have decided guilt and one such view would clearly constitute reversible error.

[35] Had the trial judge undertaken an analysis of the defence evidence, in light of the possibility of inadvertent collusion, he would have had to consider that there was independent evidence that tended to support at least some of the evidence provided by the defence witnesses, which was incapable of being tainted by collusion. In particular, on this point, there was the uncontradicted evidence, supported by video evidence, of the creaking of the bedroom floor. However, this evidence is not mentioned by the trial judge. He does not address how that evidence might have supported the defence position, and thus discounted any problems arising from the suggestion of collusion. Simply put, the witnesses could not have colluded to make the floor creak.

[36] To a similar effect was the evidence of the hangers on the bedroom door that would have made noise if the door was opened. This evidence is also not mentioned by the trial judge, although it was not challenged at trial. Again, inadvertent collusion would not undermine the probative value of this evidence.

[37] As indicated, the trial judge was obliged to consider whether, if there was inadvertent collusion, it actually affected the evidence of the various defence witnesses. In that regard, the trial judge had to consider the nature of the discussions that took place between these witnesses.

[38] … The trial judge could not approach the issue of collusion in the same fashion with respect to the appellant as he might with respect to the other defence witnesses, because of the appellant’s right to disclosure. And, once again, the trial judge had to consider whether those discussions led to any impairment of the evidence given.

[39] Lastly, the trial judge would also have had to consider that these discussions occurred among members of the same family, i.e., father, mother, and daughters, faced with serious allegations made against one parent. Some discussion was inevitable in those circumstances. The impact of those discussions, if any, was the crucial issue. In the end result, none of this analysis was done. Simply put, the trial judge’s collusion analysis is too general and conclusory to constitute a proper evaluation of the evidence offered by each defence witness.

[40] Consequently, we are left in the same position as this court was left in Burnie. I am unable to determine the impact, if any, of the finding of “inadvertent collusion” on the trial judge’s assessment of the credibility and reliability of each of the defence witnesses. This problem is exacerbated by the fact that the trial judge clearly said that he was not prepared to use collusion as a basis to reject the defence evidence. It was then incumbent on the trial judge to address this issue in his W. (D.) analysis, including why the defence evidence did not raise a reasonable doubt, given that collusion alone was not a basis for rejecting the defence evidence. As I shall discuss later in these reasons, there was no such analysis.

(2) The Absence of Analysis of the Competing Evidence

[43] In this respect, there were two particularly important pieces of evidence that directly impacted on TH’s evidence, but which the trial judge did not address. One is TH’s evidence that the appellant, in committing the assaults, had to roll her over forcefully as she attempted to remain on her stomach to avoid the unwanted touching. This evidence is of particular significance, given that TH was sharing the bed with K. Indeed, the evidence was that they were so close together that they were touching while they slept. Yet, on TH’s evidence, the appellant forcefully rolled her over in order to assault her without ever waking K. The surface improbability of that being able to take place required the trial judge’s attention. He was obliged to resolve that issue in terms of his conclusion that TH’s evidence established the guilt of the appellant beyond a reasonable doubt. Yet this resolution never took place.

[44] The second important piece of evidence related to the opportunity for the appellant to commit these offences. In that regard, the evidence was that the appellant worked night shifts, that he was only home on two nights per week, that he spent the nights when he was home with his wife, that his wife was a light sleeper who said she would be awoken if the appellant left their bed, and that she could not recall any instance of her awaking and finding the appellant absent. In addition to this evidence, of course, is the evidence of the creaky floors in the house.

[45] … One is that the trial judge does not deal with this submission directly in his reasons. The other is the manner in which the trial judge dealt with it during closing submissions. At that time, the trial judge said:

As far as why would he take that risk, I think sex offenders take incredible risks all the time and, so you, I mean, you hear, well why would he ever take that risk when somebody was next door or whatever it was, but that’s just the nature of those – of that type of offence, and that’s why in this court, the majority of the cases that we hear are sex offences… Because they’re prepared to take those incredible risks.

[46] … But here, the trial judge appears to be expressing a universal truth that all sex offenders take incredible risks, which would constitute an inappropriate stereotype about how sex offenders behave. Even if the trial judge was not intending to express a universal truth, he was at least of the view that incredible risk-taking is commonplace. If that was the trial judge’s approach, then he erred in doing so. Not only is it arguable that this too would be an inappropriate stereotype about how sex offenders behave, judicial notice cannot be taken of such a contention as if it was a fact. Assuming such a fact could be established, it would require a proper evidentiary foundation. A third possibility is that the trial judge was relying on his personal knowledge or experience as proving that fact. This also would be an error.

[47] The failure of a trial judge to address material evidence constitutes a misapprehension of the evidence. As Doherty J.A. said in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 538:

A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence.

[48] The two pieces of evidence to which I have referred were relevant to a material issue, that is, the credibility and reliability of TH’s evidence. The trial judge’s failure to both mention these pieces of evidence, and to deal with them in his analysis, constitutes an error. In this case, given its importance in the overall W. (D.)analysis, to which I now turn, this constitutes an error of law that has the effect of rendering the verdicts unreasonable.

(3) The W. (D.) Analysis

[51] In this case, the only application of the principle appears in the final paragraph of the trial judge’s reasons, as I have set out in para. 25 above. While that brief mention would be sufficient to show that the trial judge was alert to the principle, what is missing in this case is any analysis leading up to the trial judge’s conclusion as to its proper application. In particular, there is no discussion or analysis of the appellant’s evidence, or why the trial judge rejected it, or why the trial judge found that it did not raise a reasonable doubt, either on its own or in conjunction with the rest of the defence evidence.

[53] The decision in D. (J.J.R.) permits a conclusion that a trial judge’s “considered and reasoned acceptance” of the complainant’s evidence is a sufficient basis to explain the trial judge’s rejection of an accused person’s evidence and, similarly, to explain why that evidence does not raise a reasonable doubt.

[54] The decision in D. (J.J.R.) provides a route for an appellate court to be satisfied that, despite the failure to follow the step-by-step analysis from W. (D.), the trial judge nevertheless properly applied it. What the decision in D. (J.J.R.) does not do, however, is provide an answer to the failure of a trial judge to avert to exculpatory evidence that stands unchallenged. The failure to advert to such evidence, and to address it, means that the acceptance of the complainant’s evidence is neither considered nor reasoned. This point was made in R. v. C.L., 2020 ONCA 258, 387 C.C.C. (3d) 39, where Paciocco J.A. said, at para. 33:

In contrast, those same terms, “considered and reasoned”, offer no guidance to a trier of fact about when it is appropriate to convict in the face of exculpatory evidence that has no obvious flaws.

[55] It is the problem identified in C.L. that arises in this case. There was clear exculpatory evidence, much of which was undisputed. That evidence included the creaky bedroom floor, the clothes hangers on the door, the evidence regarding the appellant’s wife being a light sleeper, the hours during the night when the appellant was at work, the rolling over of TH, and like matters. The trial judge fails to address any of this evidence, or explain why it would not, at least, raise a reasonable doubt….

[56] The respondent strives to avoid these problems by characterizing the trial judge’s reasons as being generally sufficient and, also, by invoking the principle derived from R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, that an appellate court “must not finely parse the trial judge’s reasons in a search for error”: at para. 69. The decision in G.F. reaffirms the important message that appeal courts should not be too ready to overturn the factual conclusions made by trial judges and should not assume that errors have occurred when errors are not evident. However, G.F. does not direct appeal courts to overlook or disregard material reasoning errors, nor does it dispense with the need for trial judges to give adequate reasons for their decisions before stigmatizing and punishing someone as a sex offender. [Emphasis by PM]

[57] … The reasons must explain the “what” and the “why”: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 17. More specifically, trial judges are obliged to address significant exculpatory evidence, the presence of which makes a finding of guilt beyond a reasonable doubt unthinkable, or at least highly unlikely, absent a thorough explanation of why it does not.

[59] This requirement is central to the purpose for reasons. It is so the accused and the public can know why the conclusion was reached, along with providing the opportunity for meaningful appellate review. This point has been made in many decisions of the Supreme Court of Canada and of this court. It is aptly put in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, where the majority said, at para. 21:

This does not mean that a court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of fact are reasonably available. Moreover, where the charge is a serious one and where, as here, the evidence of a child contradicts the denial of an adult, an accused is entitled to know why the trial judge is left with no reasonable doubt.

[60] The trial judge does not address the exculpatory evidence. He does not explain why that exculpatory evidence did not corroborate the appellant’s denial of the events, nor, at the very least, why it did not raise a reasonable doubt. The trial judge’s reasons do not perform the fundamental purpose for which reasons are required. Those failures mean that this court cannot be satisfied that the fundamental point made in G.F., at para. 82, has been answered:

[W]hether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns.

[61] … Even if one completely rejects the evidence of the appellant, his wife, and their daughters, on the basis that their evidence is “tainted” – a conclusion that the trial judge himself was not prepared to make – this does not explain why the appellant’s denial of the events was not found to raise a reasonable doubt, when it can be seen as being corroborated by the exculpatory evidence offered.

CONCLUSION

[62] The appeal is allowed, and a new trial is ordered.

R v Clyke, 2021 ONCA 810

[November 16, 2021] Impropriety in Prosecution Closing Statement to Jury: Propensity Invitation, Need for Strong, Specific Instruction [Paul Rouleau, K. van Rensburg, Grant Huscroft JJ.A.]

AUTHOR’S NOTE: The impropriety in the closing submissions in this case were rather blatant and well-accepted. Prosecutors are not permitted to make arguments to juries based on propensity reasoning. Here, an organising principle of the prosecution closing was that because the appellant had been a drug dealer who took advantage of people (in drug dealing) he was the kind of person that would take advantage of a young girl to commit a sexual assault. What is particularly helpful from this decision is the description of the remedy that should have taken place. In most such instances, as in this case, judges, when confronted with undermining Crown submissions try to come across as fair by generalizing the correcting instructions to all counsel or general propositions. The ONCA says that’s a failure to correct. The Trial Judge must make a specific comment in relation to the offending content in the Crown’s submissions. This is the only way to protect the integrity of the proceedings and insulate them from appeal. Consequently, defence counsel can use this case to get a strong, specific instruction directed that the offending portions of the closing.

Overview

[1] The appellant and two co-accused were charged with sexual assault and several related offences. The charges arose from an alleged attack on the complainant by three individuals in the early hours of the morning in an abandoned shed in downtown Toronto. The appellant and Derrick Goulding were tried together, while the third individual was tried separately.

[2] The Crown’s theory at trial was that the appellant and Mr. Goulding had participated in an opportunistic crime. Mr. Goulding testified. He claimed that on the day of the alleged offence he and the complainant had sex in a consensual sex-for-drugs transaction, and that no sexual assault or assault had taken place. The appellant did not testify. His counsel argued that the case against him had not been proven beyond a reasonable doubt and that the complainant’s late identification of him as one of her assailants was suspect.

[3] After an 18-day trial, the jury found the appellant and Mr. Goulding guilty of two counts of assault simpliciter and one count of assault causing bodily harm. Both were acquitted of sexual assault, unlawful confinement, sexual assault with a weapon, and being a party to a sexual assault.

[4] The appellant appeals his convictions based on alleged improprieties in the Crown’s closing argument. He submits that the Crown’s closing submissions contained serious improper and inflammatory remarks that rendered his trial unfair.

[7] Briefly, we conclude that the Crown’s closing submissions contained improper and inflammatory remarks that cumulatively rendered the appellant’s trial unfair and resulted in a miscarriage of justice despite the trial judge’s corrective instruction and charge.

Facts

(2) Objections to the Crown’s Closing at Trial

[16] The Crown addressed the jury last. Immediately after her closing submissions, both defence counsel raised a number of objections. These included that:

•      the Crown invited the jury to engage in propensity reasoning based on evidence about the bad character of the two accused; in particular, linking their exploitation of drug addicts to their exploitation of S.L.;
•      the Crown provided “commentary” about how the act was brutal, and “something no mother, sister, or friend should experience”;
•      the Crown gave her personal endorsement of the complainant’s credibility;
•      the Crown submitted that the complainant was able to convince the sexual assault nurse of her story and relied on this to bolster the complainant’s credibility;
•      the Crown submitted that Mr. Goulding’s account of a fire alarm was not credible because he did not mention the firefighters who attended the scene, when there was no evidence led about when the firefighters arrived or where they went; and
•      the Crown gave evidence by talking about her personal experience dropping a brick.[1]

[17] Defence counsel did not move for a mistrial; instead, they asked the trial judge to provide a corrective instruction to the jury.

(3) Discussions with Counsel

[20] With respect to the specific issues raised by defence counsel, the trial judge agreed that the Crown’s personal endorsement of S.L.’s credibility was improper, and she indicated that she would instruct the jury to disregard the personal opinions of counsel. …

[22] As for defence counsel’s concern about the Crown’s invitation to the jury to engage in propensity reasoning, and her use of inflammatory language (described by defence counsel as “personal commentary”), the trial judge observed that the defence had also used lots of “commentary” in their closing arguments, and that they had invited the jury to engage in propensity reasoning by suggesting that S.L. was a liar….

Issues

[26]      The sole issue in this appeal is whether there were serious improprieties in the Crown’s closing submissions that were not effectively addressed by the trial judge, such that the appellant had an unfair trial.

[27]      The appellant relies on the following:

1. the invitation that the jury engage in propensity reasoning;
2. the invitation that the jury decide the case based on sympathy for the complainant, by using inflammatory language;
3. the improper attempts to bolster the complainant’s credibility, by:
4.          suggesting that the complainant had stood up to cross-examination in prior proceedings; and
5.          submitting that the complainant had “convinced” the sexual assault nurse of the truth of her allegations;
6. the invitation that the jury engage in speculation, including by:
7.          offering unfounded theories for how drugs might have gotten into the complainant’s system; and
8.          claiming that the appellant’s DNA was present in the samples taken from the complainant;
9. the reference to facts not in evidence, including:
10.          the number of firefighters present during a fire alarm and the actions taken by those firefighters;
11.          whether a person familiar with the streets would “rat” on someone; and
12.          an explanation for why the Crown did not call certain evidence; and
13. her improper reliance on personal observations not founded in the evidence.

APPLICABLE LEGAL PRINCIPLES

(1)         The Two-Part Test

[32] When improper comments by Crown counsel are sufficiently prejudicial, a trial judge has a duty to intervene, and a failure to do so will constitute an error of law: R. v. T.(A.), 2015 ONCA 65, 124 O.R. (3d) 161, at para. 29, citing R. v. Romeo, 1991 CanLII 113 (SCC), [1991] 1 S.C.R. 86, at p. 95 and R. v. Michaud, 1996 CanLII 211 (SCC), [1996] 2 S.C.R. 458, at para. 2.

[33] The analysis of a claim on appeal that Crown counsel crossed the line in closing submissions to a jury proceeds in two stages: the court must first determine whether the Crown’s conduct was improper; and if so, “whether, considered in the context of the trial as a whole, including the evidence adduced and the positions advanced, the substance or manner of the Crown’s closing address has caused a substantial wrong or miscarriage of justice, including by prejudicing the accused’s right to a fair trial”: R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 184.

[34] With respect to the first stage of the analysis – whether the Crown’s conduct was improper – the limits imposed on Crown counsel are well-established. These include:

•      “The Crown occupies a special position in the prosecution of criminal offences, which ‘excludes any notion of winning or losing’ and ‘must always be characterized by moderation and impartiality’”: T.(A.), at para. 26, citing R. v. Boucher, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, at pp. 21, 24.
•      The Crown should not “engage in inflammatory rhetoric, demeaning commentary or sarcasm, or legally impermissible submissions that effectively undermine a requisite degree of fairness”: R. v. Mallory, 2007 ONCA 46, 217 C.C.C. (3d) 266, at para. 340;
•      The Crown must not “express personal opinions about either the evidence or the veracity of a witness”: R. v. Boudreau, 2012 ONCA 830, at para. 16, leave to appeal refused, [2013] S.C.C.A. No. 330; Boucher, at p. 26. The Crown must not invite speculation by the jury: McGregor, at para. 179, or rely on anything within their personal experience or observations that is not in the evidence: R. v. Pisani, 1970 CanLII 30 (SCC), [1971] S.C.R. 738, at p. 740;
•      The Crown must not “invite the jury to use an item of evidence in reaching its verdict for a purpose other than that for which it was admitted and the law permits”: McGregor, at para. 180; and
•      The Crown must not misstate the evidence or the law: Boudreau, at para. 16.

[35] There is no question that the Crown is entitled to make forceful and effective closing submissions: McGregor, at para. 181. Both Crown and defence counsel are entitled to latitude in their closing addresses. However, as Deschamps J. wrote for the majority in R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 79:

Crown counsel are expected to present, fully and diligently, all the material facts that have evidentiary value, as well as all the proper inferences that may reasonably be drawn from those facts. However, it is not the Crown’s function “to persuade a jury to convict other than by reason”: R. v. Proctor (1992), 1992 CanLII 2763 (MB CA), 11 C.R. (4th) 200 (Man. C.A.), at para. 59. Rhetorical techniques that distort the fact-finding process, and misleading and highly prejudicial statements, have no place in a criminal prosecution. [Emphasis added.]

[36] … The test is whether the closing address “was unfair in such a way that it might have affected the decision of the jury”: R. v. Grover (1990), 1990 CanLII 11030 (ON CA), 56 C.C.C. (3d) 532 (Ont. C.A.), at p. 537; reversed on appeal, but not on this point 1991 CanLII 25 (SCC), [1991] 3 S.C.R. 387. See also Pisani, at para. 5, where the court concluded that improprieties in the Crown’s closing address bore so directly on the actual issue in the case and were so prejudicial in respect of that issue and of the related question of credibility as to deprive the appellant of a fair trial.

[37] While each case falls to be decided on its own facts, a non-exhaustive list of factors to be considered includes: (i) the seriousness of the improper comments; (ii) the context in which the comments were made; (iii) the presence or absence of objection by defence counsel; and (iv) any remedial steps taken by the trial judge following the address or in the final instructions to the jury: R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413, at para. 128, per Watt J.A.

(2)         Deference to the Trial Judge

[38] Substantial deference is owed to the trial judge’s response to alleged improprieties in a Crown’s closing address….

[40] A timely and focused correction by a trial judge of deficiencies in a Crown’s closing address may be sufficient to alleviate any prejudice to an appellant’s fair trial rights: Boudreau, at para. 20. “Clarity, specificity and, forcefulness are the three qualities appellate courts usually look at in considering the adequacy of the correction”: Robert J. Frater, Prosecutorial Misconduct, 2nd ed. (Toronto: Carswell 2017), at p. 283. In cases where this court has found potentially prejudicial Crown misconduct, but deferred to the trial judge’s remedial approach, the court has described the corrective instruction as “blunt”, “strong”, “strongly-worded”, “firm and clear” or “pointed”, observing that the trial judge explicitly identified the problematic areas and told the jury to disregard them: see, e.g., Boudreau, at para. 19; R. v. John, 2016 ONCA 615, 133 O.R. (3d) 360, at para. 64; R. v. Osborne, 2017 ONCA 129, 134 O.R. (3d) 561, at para. 85; R. v. Howley, 2021 ONCA 386, at para. 49.

[41] In most cases, what is required is a sharp correction, as soon as possible after the words are spoken: R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.). In that case the Crown’s closing, which was immediately before the lunch recess, contained improper submissions. Immediately upon resuming the judge gave his charge to the jury in which very early on he spoke about the Crown’s address, identified the specific comments that were improper and why that was the case, and instructed the jury more than once to “banish those comments from [their] mind”. This court accepted that this “very clear and forceful direction” that was given shortly after the Crown’s address was sufficient to nullify the unfortunate effect of the Crown’s address: at p. 471. See also Howley, at paras. 41-42.

[42] A caution with precise examples is preferable to a general appeal to the jury to be dispassionate: Melanson v. R., 2007 NBCA 94, 230 C.C.C. (3d) 40, at para. 75. Judges should identify clear improprieties to the jury and provide “an unambiguous direction that they are to be disregarded as irrelevant”: Fiddler v. Chiavetti, 2010 ONCA 210, 317 D.L.R. (4th) 385, at para. 18. In R. v. Copp, 2009 NBCA 16, 342 N.B.R. (2d) 323, for example, the trial judge told the jury to disregard Crown counsel’s personal opinions and rhetorical excesses, repeating the specific remarks the jury was to disregard, and explaining why….

Analysis

[45] … As already stated, it is our view that the cumulative effect of certain problems with the Crown’s closing address rendered the appellant’s trial unfair. We will explain why we have reached this decision, and why in our opinion, the trial judge’s corrective instruction and the aspects of the jury charge relied on by the respondent on appeal were inadequate to remedy the resulting harm.

(1)         The Invitation to Engage in Propensity Reasoning

[46] The most significant impropriety in the Crown’s closing submissions was the express and pervasive appeal to propensity reasoning.

[47] The trial Crown repeatedly invited the jury to engage in propensity reasoning based on the discreditable conduct of the two accused. In particular, the Crown emphasized that the appellant and his co-accused preyed on vulnerable people like S.L. when they sold them drugs, and she invited the jury to reason that they had preyed on S.L. in committing the alleged offences. These submissions also encouraged the jury to despise the appellant and his co-accused and to sympathize with the complainant….

[49] Throughout her closing, the Crown returned to the theme that the appellant and Mr. Goulding were bad people who took advantage of those who were vulnerable. She concluded her submissions in a similar vein, repeating much of what she said when she began her submissions, and drawing the link between the appellant and his co-accused’s approach to selling drugs to desperate people and their commission of the alleged offences….

[52] … The respondent relies on the part of the corrective instruction where the trial judge said:

And lastly, I’m also going to remind you, as I will in my charge, about the dangers of propensity reasoning. And what I mean by that is you’re not here to judge whether you like somebody’s lifestyle or you like the kind of person that they are. What you’re here to decide is whether an offence or offences were committed on a given day at a certain place, based on the evidence, all of the evidence that you saw and heard in this proceeding.

[55] We agree with the appellant that the Crown’s direct invitation to the jury to engage in propensity reasoning was highly improper. The potential prejudice arising from evidence of an accused’s extrinsic misconduct is well-established. There is “moral prejudice” – the risk that the jury may reason that the accused is a bad person who is likely to have committed the offence with which he is charged. There is also a risk of “reasoning prejudice”, which diverts the jury from its task. An example of reasoning prejudice arises where “the evidence awakens in the jury sentiments of revulsion and condemnation that deflect them from ‘the rational, dispassionate analysis upon which the criminal process should rest’”: R. v. C. (Z.W.), 2021 ONCA 116, 155 O.R. (3d) 129, at paras. 101-103, citing Martin J. (dissenting in part, but not on this point) in R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 176, 180.

[56] The trial Crown’s submissions in this case gave rise to both moral prejudice and reasoning prejudice. She invited the jury to conclude that the accused were bad, predatory people who, therefore, were likely to have committed the offences charged, and she invited the jury to detest the accused, potentially diverting the jurors from their task.

[57] Evidence of the accused’s drug dealing was admissible and relevant as part of the narrative (at the very least it provided the necessary context for Mr. Goulding’s testimony). That said, even when evidence of prior misconduct is admissible as part of the narrative, “it is incumbent on the trial judge to clearly instruct the jury on exactly how the evidence is to be used”: C. (Z.W.), at para. 132. A trial judge’s instruction “should identify the evidence in question, and explain the permitted and prohibited uses of the evidence”: C. (Z.W.), at para. 109.

[58] While the admission of the drug-dealing evidence without a specific instruction about its use may not have amounted to reversible error in this case, particularly given that there was no objection to the charge on this basis, the problem here is the Crown’s use of the evidence.

[59] The Crown’s remarks were serious. They were repeated and explicit. The invitation to propensity reasoning was the main theme of the Crown’s submissions…. The invitation to propensity reasoning was not a mere passing reference. It was the organizing principle for the Crown’s theory of the case.

[60] Unfortunately, the trial judge’s corrective instruction did not adequately respond to the Crown’s improper appeal to propensity reasoning.

[61] First, the instruction was insufficiently specific or focused: it did not identify for the jury that it related to what the Crown had said in her closing submissions, nor did it include an example of prohibited propensity reasoning. The trial judge ought to have specifically identified the improper invitation to propensity reasoning and then instructed the jury about the permissible and prohibited uses of the evidence about the accused’s drug-selling behaviour.

[62] Second, although the trial judge addressed in general terms the “moral prejudice” aspect of propensity reasoning – instructing the jury not to “judge whether you like somebody’s lifestyle or you like the kind of person they are” – she did not address the key problem, which was the Crown’s urging the jury to reason that because the accused were predatory people who targeted vulnerable individuals, they had committed the offences. The corrective instruction did not explain to the jury that they were prohibited from reasoning in this way, and did not instruct the jurors to disregard the Crown’s invitation to do so.

[63] The absence of an effective corrective instruction was compounded by passages in the jury charge. In summarizing the position of Crown counsel, the trial judge repeated the main theme of the Crown’s closing: that the accused were opportunists who took advantage of the vulnerable complainant, just as they took advantage of vulnerable drug users….

[65] This case is similar in some respects to two other decisions from our court, where the Crown’s theory of the case, as put to the jury, turned on impermissible reasoning. In R. v. Precup, 2013 ONCA 411, 116 O.R. (3d) 22, this court ordered a new trial after Crown counsel improperly referred to hearsay notations in the appellant’s medical records for the truth of their contents, inviting the jury to use them as evidence of the appellant’s disposition for violence, and hence as indicative of his guilt. The Crown suggested that the appellant was an angry and volatile person, and therefore more likely to have committed the offences charged. The Crown’s statements “were tantamount to encouraging the jury to engage in impermissible propensity reasoning. They cried out for an explicit, remedial instruction or, alternatively, a clear instruction on the limited use of [the] evidence about the Prior Incidents”: at para. 65. The absence of such instructions required a new trial.

[66] Similarly, in T.(A.), the trial Crown’s theory of the case turned on impermissible reasoning: that the appellant was a religious zealot and therefore more likely to have committed the offences charged: at para. 40. The appeal was allowed and a new trial was ordered notwithstanding the failure by defence counsel to object to Crown counsel’s comments. This court concluded that the remarks were so prejudicial that the trial judge had a duty to remedy the potential trial unfairness: at para. 42.

[69] It is unnecessary to decide whether, standing alone, the Crown’s appeal to propensity reasoning would warrant a new trial given the cumulative effect of the improprieties in the Crown’s closing submissions, discussed further below.

(2)         Crown Counsel’s Inflammatory Language

[70] The appellant submits that the trial Crown used inflammatory language to describe the assault and the effect it had on the complainant. She described the assault as “a horrendous, brutal attack that no girl, no woman, no mother, no sister, no daughter, no friend should ever have to experience in their lives”. She suggested that the complainant’s demeanour while testifying was “consistent with someone who is reliving a horrible, degrading, violent, traumatizing event. One that [she] may never forget and perhaps never move beyond”.

[74] In our view, the Crown improperly and directly sought to “inflame the passions” of the jury, appealing to their emotions, by inviting sympathy for S.L. and revulsion toward the accused. The inflammatory rhetoric used by the trial Crown worked together with her invitation to the jury to engage in propensity reasoning.

[75] As in the case of the invitation to propensity reasoning, and for the same reasons, the Crown’s use of inflammatory language should have been the subject of an explicit and unequivocal corrective instruction. The standard instruction to the jury not to decide the case based on sympathy or prejudice was insufficient, given that both sympathy and prejudice were the main themes in the Crown’s closing.

[76] … “An inflammatory closing is not justified even where preceded by defence counsel’s own excesses. Ethical duties do not recede in proportion to the improprieties of opposing counsel”: David Layton and Hon. Michel Proulx, Ethics and Criminal Law, 2nd ed. (Toronto: Irwin Law, 2015), at pp. 648-649. “Emotions tend to run high in jury trials dealing with serious crimes… Crown counsel is expected to behave in a dispassionate and impartial manner to reduce the emotional level and foster a rational process”: R. v. R.B.B., 2001 BCCA 14, 152 C.C.C. (3d) 437, at para. 15. [Emphasis by PM]

(4)         Invitations to Speculation

[85] The appellant submits that the trial Crown improperly invited the jury to engage in speculation in two ways: first, in discussing ways that drugs might have gotten into S.L.’s system by including a theory that was not supported by the evidence, and second, by claiming that the appellant’s DNA was present in the DNA samples, when the evidence did not support this conclusion.

(a)         Speculation About Why S.L. Had Drugs in Her System

[87] The respondent acknowledges that, given the limited details in S.L.’s evidence about the sexual assault, the trial Crown likely crossed a line when she submitted that the assailants “[p]resumably… were all touching every part of [S.L.’s] naked body”, and in implicitly relying on semen as a possible method of transmission, when the expert evidence did not support this theory. However, the respondent submits that this did not cause any unfairness because this evidence related to the sexual assault allegation. The only way the jury could have accepted the Crown’s submissions on how the drugs came to be in S.L.’s system was if they also accepted that the sexual assault occurred. Moreover, in her charge the trial judge correctly summarized the evidence on how methamphetamine can enter a person’s system, as well as the defence position that the Crown’s suggestion that crystal meth may have passed through the vaginal or anal cavity was at odds with her testimony that she only saw the three males smoking the meth, not stuffing the pipe or snorting the meth. Finally, the trial judge instructed the jury to decide the facts based on the evidence and cautioned them against speculation.

[88] We agree with the respondent’s concession that the Crown’s submissions stretched the evidence about drug transfer beyond its limits….

[89] In our view a more specific caution would have been preferable, because the Crown’s implicit submission that the jury could find that methamphetamine was transferred to S.L. through semen was particularly improper – there was simply no evidence to support such a finding. The trial judge could have pointed to this example in her caution against speculation. As with the Crown’s submissions about the sexual assault nurse and her personal endorsement of the complainant’s credibility, if this had been the only error in the Crown’s submissions, we might well have deferred to the trial judge’s decision not to give a specific correction. However, given that it was accompanied by multiple problematic submissions from the Crown relating to the important issue of S.L.’s credibility, it ought to have been addressed.

F.           CONCLUSION ON THE CUMULATIVE EFFECT OF THE CROWN’S IMPROPER SUBMISSIONS

[101] In our view, the trial Crown made improper closing submissions that prejudiced the appellant’s right to a fair trial. The main problems were the Crown’s repeated invitations to the jury to engage in prohibited propensity reasoning and her use of inflammatory language inviting the jury to detest the accused and to sympathize with the complainant.

[103] In determining whether trial unfairness resulted from the Crown’s improprieties in her closing address, the strength of the Crown’s case is a relevant consideration. The Crown did not have an overwhelming case. There were credibility and reliability concerns with the complainant’s evidence, much as there were with the evidence of Mr. Goulding. In this context, it was important that Crown counsel approach the evidence fairly and dispassionately. She did not do so; instead, she attempted to prop up her case by inviting the jury to feel revulsion for the accused and compassion for the complainant, and by bolstering the complainant’s credibility in improper ways. Given the challenges in the Crown’s case, a more explicit corrective instruction was required to address the resulting prejudice to the appellant’s right to a fair trial.

[104] When, as here, Crown counsel has overstepped the bounds of proper submissions to the extent that an accused’s fair trial rights are jeopardized, there is typically no reason for the trial judge to avoid pointing out specifically what is being corrected, and there is every reason to do so. In this case the most egregious remarks were deliberate and part of the Crown’s overriding theme. It was appropriate and indeed necessary for the trial judge to “single out” the Crown in her remarks. The failure to do so risked a corrective instruction that was ineffective.

[105] Depending on the nature of the impropriety, there may be a concern about repeating references that are prejudicial to the accused. This is one reason why it can be beneficial for a trial judge not only to discuss the appropriate response with counsel (as the trial judge did in this case), but also to provide them with proposed wording for their consideration and input: see, e.g., Howley, at para. 41; R. v. Herron, 2019 SKCA 138, at para. 89; R. v. Badgerow, 2019 ONCA 374, at paras. 44-47; R. v. Gager, 2020 ONCA 274, at para. 57. Crown counsel can play an important role in ensuring that an effective and appropriate corrective instruction has been given. See, e.g., Melanson, at para. 79, and Howley, at paras. 40-42.

[106] While Crown counsel at trial, for the most part, did not accept that she had done anything wrong, the respondent on appeal acknowledges that there were several significant improprieties in the trial Crown’s closing submissions. The resulting prejudice to the appellant’s fair trial rights was not effectively remedied. The corrective instruction did not bring home to the jury what was specifically said that they needed to disregard. It would not have been clear: (1) what parts of the Crown’s closing submissions were problematic; and (2) that the jury was to disregard entirely certain parts of the Crown’s submissions.

[108] For these reasons we allow the appeal, quash the appellant’s convictions, and remit the matter to the Superior Court of Justice for a new trial on the charges
of assault and assault causing bodily harm.

R v Holloway, 2021 ONSC 6136

[September 16, 2021] Prior Judicial Findings of Police Officer Misconduct [Justice D. E. Harris]

AUTHOR’S NOTE: Cross-examination of officers on prior judicial findings of misconduct is generally not admissible evidence. However, herein Justice Harris cobbles together some exceptions (ie. admissibility under the seriousness ground of 24(2) of prior Charter breaches by the same officer, and the fact that police can be cross-examined on the underlying facts of prior misconduct) to suggest that in some circumstances prior judicial findings of misconduct can be admitted for the purpose of assessing Charter violations. The challenge for counsel will be the many exceptions and the convoluted route to getting there. You will need transcripts and even evidence from the prior trials to replicate the “foundation” for the finding. Then you will need to overcome the collateral fact rule. The only way this can happen is if the credibility of the police officer is a central issue in the case and the prior impropriety is somehow arguably applicable to your situation. Any such application will be bitterly fought, but can be useful fodder for appeal even if you lose. Finally, remember this a trial level decision – it will be only persuasive. You will need to navigate the convoluted route through the law yourself, but at least now you have a map.  

Background Facts

[1] The accused makes application pursuant to Sections 8 and 9 of the Canadian Charter of Rights and Freedoms (“Charter”) to exclude evidence under Section 24(2). The police placed the Applicant and others under investigative detention in an apartment. When they searched the Applicant incidental to this detention, they found a loaded handgun in a satchel he was carrying.

[2] The crux of the issue to be decided is whether the police had sufficient grounds to search the Applicant.

[5] The man who rented the apartment, Vuthy Oung, had called the police a few minutes before. The transcript of his call shows that he said that he had seen through his video cameras installed in the apartment (he was at work at the time but had electronic access to the cameras) that there was a youth gathering in his apartment and that they were smoking marijuana. Mr. Oung said that his 16-year-old daughter Jasmine had let the people in but was now scared to ask them to leave. He said that there were four males in the apartment; they possibly lived in the building. The operator said that Mr. Oung should ask his daughter to move in with the males if she liked them so much. Mr. Oung asked that the males be removed. The operator said that they would have police there as soon as they could, although it could take the police about five hours.

[6] The attending officers were made aware of this information by their dispatcher. The call was classified as a priority 4, which is the lowest priority for a call, a non-emergency call. Officer Khan who attended along with Officer Corona, viewed it as an “unwanted person call.” Besides relaying the information about smoking marijuana, it also stated that there was cocaine use. This was inaccurate. Mr. Oung never said this. It is unclear why or how it crept into the dispatch. This is troubling. False information being conveyed to police officers could lead to Charter violations or worse. However, both police officers disclaimed that it played a significant part in their conduct on the scene although they mentioned it several times throughout their evidence.

[7] Officers Khan and Corona were in full uniform with the word POLICE emblazoned on their chests. The two went up to Suite 339 and knocked on the door. The door was opened by a young woman both assumed, correctly, was Jasmine, Mr. Oung’s daughter. As best they could recollect, they did not speak to her. Both officers testified that they interpreted her body language and the expression on her face as an invitation to enter which they did. Jasmine did not testify at this trial and her version of the interaction was not introduced into evidence.

[8] The entire duration of the police action from entering the apartment to finding the gun was about four to five minutes.

SECTION 8 OF THE CHARTER: WAS THE POLICE ENTRY INTO THE APARTMENT LAWFUL?

[10] Both police officers testified that although Jasmine did not explicitly give them permission to come into the apartment, they divined from her moving aside when she opened the door that it was implicit. P.C. Khan testified that he saw from her face that she looked “relieved.” P.C. Corona testified that Jasmine agreed to their entry based on her body language. He added,

…the female willingly opened the door. The door was open and at no point did she put up any resistance for us to come in, nor did she say, or that I can recall, any um – anything that would lead us to believe that she didn’t want us there.

[11] Viewed from an objective, reasonableness standpoint, in this situation, “body language” with nothing more could not constitute an operative consent to enter the home. In addition, the presumptive element of psychological compulsion when faced with police requests and directions weighs against an invitation to enter or an effective consent. In R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, [1985] S.C.J. No. 30 at para. 53, the court accepted that when a police officer makes a demand or a direction, it is not reasonable to expect that an individual appreciates that there is a choice whether to comply or not. Psychological compulsion is analyzed on an objective standard: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paras. 30-32; R. v. Le, 2019 SCC 34 at paras. 25-27, 113-117. That applies here.

[12] On the objective facts, a consent from Jasmine for the police to enter cannot be inferred. While Mr. Oung consented and invited the police interaction with the persons in the apartment, Jasmine did not. In R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531 (S.C.C.) at paras. 19 to 27, the Supreme Court contemplated a similar question. They noted both the complexity and the importance of the issue and then, referring to the lack of full submissions on the question, left it to be decided another day. That seems appropriate in this instance as well.

II.               SECTION 8 OF THE CHARTER: DID THE POLICE HAVE REASONABLE SUSPICION TO GROUND AN INVESTIGATIVE SEARCH OF THE APPLICANT?

[16] The main battleground upon which this application was fought involved whether the police in fact entertained a reasonable suspicion that the Applicant was in possession of the handgun, permitting the safety search which followed. The defence position was that the police provided an “untruthful version of events” and “fabricated” their evidence. Their conduct was influenced by racial profiling.

i.            THE EVIDENCE OF POLICE OFFICERS KHAN AND CORONA REGARDING REASONABLE SUSPICION THAT THE APPLICANT WAS ARMED

[30] Both officers cannot be right. The Applicant either attempted to conceal the satchel from view or he did not. There is no room for an honest mistake on this record. The two officers were standing right next to each other. The attention of both was trained solely on Holloway. He was the only person moving according to their evidence. Both said he did not make eye contact. Those two circumstances caught their attention. Both officers, based on their training and experience, said they were on high alert because they were concerned for their safety based on Holloway’s movement. Both had a laser focus on him.

[39] In conclusion, the officers’ evidence diverged on the one piece of evidence pivotal to whether the police could encroach on Holloway’s liberty by undertaking a search incidental to the investigative detention. The discrepancy cannot be explained away by differences in the two police officers’ opportunity to observe or any other material factors. In the circumstances, the reliability and credibility of the evidence that underlies reasonable suspicion—the evidence of P.C. Corona—requires further scrutiny….

[40]  …. First, a summary of the law with respect to racial profiling should be undertaken.

III. RACIAL PROFILING

[41] A conclusion of racial profiling has both an attitudinal component and, in addition, a behavioral component: Le at paras. 74-78; R. v. Dudhi, 2019 ONCA 665, 147 O.R. (3d) 546 (Ont. C.A.) at paras. 54-55. It can be conscious or unconscious. It is rarely if ever provable by direct evidence: Peart at para. 131. Those who racially profile, if they are even aware of it, are unlikely to admit it openly. Racial profiling is proved by marshalling circumstantial evidence that “corresponds” to the phenomenon: Brown at para. 45.

i. THE ATTIDUNAL COMPONENT

[50] Racial profiling involves two steps: 1. The first step is a pejorative characterization of individuals from a particular racial group. In this instance, the group is Black males. The pejorative conclusion is that Black males have a higher propensity to commit crime; and 2. From this conclusion, an all-encompassing generalization is made to cover everyone of the racial group. An individual is attributed the presumed group characteristics.

[53] Stereotypes are “prejudicial generalizations”: R. v. A.R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, at paras. 6-7, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218. …

[55] Stereotypes divert scrutiny of individuals, replacing it with pat generalities. Stereotypes are by nature anti-evidentiary. They sacrifice looking at the individual for a ready-made general inference blind to the specifics. In dealing with the profiling of travellers who fit the modus operandi of drug couriers, on its face, a non-discriminatory mode of profiling, the Supreme Court said in Chehil at para. 40: “Profile characteristics must be approached with caution precisely because they risk undermining a careful individualized assessment of the totality of the circumstances.” The criminal law and the Charter have always emphasized the critical importance of sensitivity to the individual and to the evidence.

ii.         THE ACT COMPONENT

[58] This second requirement, like the first requirement, correlates to the process described in the cases with respect to the jury challenge for cause selection. The question in this second stage is whether the individual can “set aside the racial bias:” Find, para. 32; Parks, paras. 23, 36. Before that is possible, of course, the attitude itself must be recognized and acknowledged. When the racial profiling is unconscious or subconscious, which the caselaw emphasizes it frequently is, it eludes recognition.

IV. WAS THERE RACIAL PROFILING IN THIS CASE?

[63] Furthermore, there are four police actions which were argued to support a finding of racial profiling: 1. The scene the officers’ observed in the apartment with five Black males believed by the police to be well-past their teen years being together with “underage” non-Black females and the conclusion of P.C. Corona that this circumstance contributed to the grounds to search the Applicant; 2. The officers’ entry into the apartment without firstquestioning Jasmine; 3. Their failure to announce their purpose and the immediate imposition of an investigative detention on everyone in the apartment; and 4. P.C. Corona’s history of criticism by three other trial judges.

i. THE NATURE OF THE BUILDING

[70] In summary, an anti-Black racial stereotype was potentially triggered by three circumstances on the evidence. There was a high level of crime in the building, most of the inhabitants were racial minorities and many were in a low-income bracket. If racism associates Black men with crime, a heavy crime locale with a significant Black population tends to conform with the racial stereotype. These factors made it more likely that the officers would leap to the conclusion of criminality even in the absence of a viable foundation in the evidence.

ii. THE CIRCUMSTANCES DEMONSTRATE THAT THE POLICE WENT WELL BEYOND THE ORIGINAL “UNWANTED PERSON” CALL IN ORDER TO INVESTIGATE THE OCCUPANTS.

[72] Based on the officers’ evidence and observations, five much older Black males together with three non-Black very young women naturally fed into virulent racial stereotypes long part of our culture: R. v. Bhogal, 2021 ONSC 4925(Ont.S.C.) at para. 13.  Both officers testified that the age discrepancy was a circumstance they believed relevant to how they approached the situation in the apartment. P.C. Corona included as part of his grounds for the search of the Applicant that the females were very young. That is, on an objective level, a very dubious conclusion.

[73] Second, the circumstances of the entry to the apartment are important. The officers were on a low priority, non-criminal “unwanted person” call. They knew that the owner’s daughter did not feel comfortable in the unit. Officer Corona’s evidence with respect to the interaction with Jasmine was troubling. He said that he did not recall whether there was any conversation with Jasmine after he knocked and she opened the door. He would not agree that there was no conversation nor would he agree that there was conversation. He could not recall either way. His was a studied, calculated lack of recollection, in my view. I have some difficulty accepting that the officer would not have a note or a memory of this. The entry to the apartment was a critical step in this case. The threshold of a dwelling is a notorious constitutional demarcation and I have no doubt that P.C. Corona and P.C. Khan were well aware of this. P.C. Khan had a similar absence of memory on the subject.

[74] Based on the absence of a note or recollection and the vagueness of memory on this point, I have no hesitation in finding that there was no conversation with Jasmine. In my view, this is of considerable significance. I share Mr. Rippell’s concern that in light of what they knew, it was suspicious that the officers said nothing about why they were there and did not seek out information from Jasmine. When she opened the door in response to their knock, this would have been an ideal time to question her. The officers both testified they discerned from the door that the music in the apartment was very loud. Later, the music made communication in the apartment difficult. But at the doorway, the music would have shielded their conversation. Jasmine was the one who felt uncomfortable and whom they were present to assist. It was unlikely that the people in the apartment could have heard their conversation with her. One would have thought that they would take advantage of this to gain as much knowledge about what they were dealing with as possible.

[75] Mr. Rippell referred to Le in arguing that the police entry was “aggressive”: see Le, paras. 51-61. Although the circumstances are quite different from that case, I agree. The police were authorized to remove unwanted persons. While they were not required to use kid gloves to achieve that object, nor were they allowed to use the situation as a pretext for a detailed criminal investigation of the occupants of the apartment.

[78] I conclude that on the basis of the context and the behaviour of the officers once they entered the apartment, including the evasiveness of P.C. Corona on the issue of the interaction with Jasmine, that the officers from the point of their entry were opportunistic and using the “low visibility” interaction to investigate crime. There is of course nothing untoward in and of itself about police officers exploiting opportunities to investigate. But they must stay within the bounds of their authority particularly in a dwelling house.

iii. P.C. CORONA AS A WITNESS

[79] The last issue to be considered in assessing the racial profiling allegation is the history of P.C. Corona as a witness. In his cross-examination of P.C. Corona, Mr. Rippell referred to three cases in which other Brampton trial judges have criticized his conduct and his credibility: R. v. Mascoe 2017 ONSC 4208 (Ont. S.C.J.) per Hill J.; R. v. Jama, 2018 ONCJ 730 (Ont. C.J.) per Renwick J.; and R. v. Mitchell 2019 ONSC 2613 (Ont. S.C.) per Stribopoulos J.

[82] It is not uncommon for objections to be made to defence counsel’s cross-examination of police officers on their testimony in previous criminal cases. Most often, it is the Ghorvei judgment that Crown counsel point to as prohibiting this line of attack. The key passage is from the judgment of Justice Charron (as she then was) at paragraph 31:

In my view, it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case. That fact, in and of itself, does not constitute discreditable conduct. I do not think it would be useful to allow cross-examination of a witness on what is, in essence, no more than an opinion on the credibility of unrelated testimony given by this witness in the context of another case. The triers of fact who would witness this cross-examination would not be able to assess the value of that opinion and the effect, if any, on the witness’s credibility without also being provided with the factual foundation for the opinion. This case, in fact, provides a good example of the difficulties that would arise if such cross-examination were permitted because, in my view, once the finding is examined in the context of the whole record in Pappageorge, it becomes apparent that it is essentially unfounded and hence can provide no assistance in determining Constable Nielsen’s credibility.

(Emphasis Added)

See also R. v. Barnes, (1999), 1999 CanLII 3782 (ON CA), 138 C.C.C. (3d) 500 (Ont. C.A.), at paras. 14-17.

[83] The conclusion that previous adverse judicial opinion cannot by itself and with nothing more be used to impugn the veracity of a police officer is often accepted with little discussion. This type of cross-examination can bring to mind concerns similar to oath-helping (or oath destroying) voiced in the jurisprudence.

[84] While perhaps judicial opinions might be of greater weight than the opinion of lay people having only vague familiarity with the witness, the same logic applies. Bald judicial opinions on veracity, a question of pure fact, remain as only one person’s opinion.

[85] However, at the same time, it is important not to take Ghorvei for more than was intended. In Ghorvei, the Appellant had been convicted of a street sale of heroin observed by an officer by the name of Neilsen. Upon his appeal against conviction, the Appellant tendered as fresh evidence transcripts of three trials in which Neilsen had testified but the accused had each been acquitted. On the appeal hearing, counsel conceded that only one of the three trials had any real impeachment value as against Neilsen, a case called Pappageorge. Counsel argued that negative findings of fact by the trial judge in that instance should be received on appeal and could have affected the verdict. The trial judge had labelled Neilsen a “compulsive liar.” Counsel for the accused argued that if the transcript had been available at Ghorvei’s trial, the trial judge’s finding in Pappageorge could have been used in cross-examination of the officer and could have affected the result.

[86] Justice Charron framed the issue to be decided as “whether a witness can be cross-examined on a prior judicial finding that he has lied under oath.” She stated,

29      If the prior judicial finding that Constable Nielsen lied under oath had formed the basis of a conviction of perjury or of giving contradictory evidence, it is clear that he could have been subjected to cross-examination on that conviction and on its underlying facts. See s. 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5; R. v. Miller (1998), 1998 CanLII 5115 (ON CA), 131 C.C.C. (3d) 141 (Ont. C.A.). Constable Nielsen, as an ordinary witness and unlike an accused person, would also be subject to cross-examination on relevant discreditable conduct even if the conduct has not resulted in a charge being laid or in a conviction. See R. v. Gonzague (1983), 1983 CanLII 3541 (ON CA), 4 C.C.C. (3d) 505 (Ont. C.A.).

[88] … It had been argued in that case that the trial judge had erred in not allowing cross-examination of a witness on a prior adverse credibility conclusion. Justice Charron seemed to hold that the principle advanced by counsel was sound but that the facts in Malabre did not support its application,

The appellant also contended that the trial judge in the earlier case had made findings of credibility with respect to Pearson that were tantamount to a determination that he had lied under oath. We would find merit in the appellant’s argument if there had been a clear and express finding to that effect. However, the findings of the trial judge in the earlier proceeding on Pearson’s credibility are subject to interpretation. In the circumstances, we are not persuaded that the trial judge in this case erred by refusing to allow cross- examination on those findings. [Emphasis added by the Ghorvei court]

[90] The core holding in Ghorvei from the first two sentences of paragraph 31 that a bare previous judicial opinion cannot be put to a witness is binding and has been applied in other cases: ….

[91] But Ghorvei is not and was not intended to be the blanket prohibition it is sometimes believed to be. First, Justice Charron found that the underlying findings of fact by the trial judge in the Pappageorge case did not support a finding that the witness had lied under oath as the judge in that case had found. The consideration of counsel’s ultimate argument was therefore unnecessary. While still binding, the Ghorvei holding is somewhat attenuated as a result: see R. v. Henry 2005 SCC 76 (S.C.C.) at para. 57; R. v. Prokofiew, 2010 ONCA 423, 100 O.R. (3d) 401 (Ont.C.A.) at paras. 18-40, aff’d with no reference to this issue, 2012 SCC 49 (S.C.C.).

[92] Second, the Malabre case accepted in principle that a witness could be cross-examined if there was a solid finding that the witness had lied under oath. In Ghorvei, Justice Charron did not disavow this earlier statement of principle from Malabre, simply saying that the factual findings in Malabre, as in Ghorvei itself, did not support the presence of a negative credibility finding made by the previous trial judge. Again, the judgment did not close the door on this mode of cross-examination. To the contrary, it placed conditions on it and sounded a cautionary note but implicitly acknowledged its availability in appropriate circumstances.

[93] Neither Ghorvei nor Malabre impose a strict inflexible rule. In fact, in the much cited paragraph 31 quoted above, Justice Charron holds that a witness cannot be cross-examined on a previous adverse credibility finding because this “in and of itself” does not constitute discreditable conduct. That is a significant qualification. Later in the same paragraph she added,

The triers of fact who would witness this cross-examination would not be able to assess the value of that opinion and the effect, if any, on the witness’s credibility without also being provided with the factual foundation for the opinion.

[94] This leads to another important distinction. A bare opinion of credibility without supporting reasons is of no assistance to a finder of fact. But if a factual foundation is laid for the opinion in the previous judgment, might it not in some circumstances, be relevant and admissible? There are statements in the case law which lend some support for this proposition. In Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584 (Ont.C.A.) at paras. 29-32, the Court, in following Ghorvei, agreed that the trial judge was correct to prohibit the cross-examination of an expert witness with respect to negative comments made by judges in three previous cases. However, Justice Hourigan added,

32      In the present case, the comments of the judge and arbitrators about Mr. Bail’s testimony in the previous cases would have been of no assistance to the jury without an understanding of their factual foundation. That necessary context would only have served to divert the jury from the task at hand and convert the trial into an inquiry regarding the reliability of Dr. Bail’s testimony in the three other proceedings.

(Emphasis Added)

[95] The second sentence raises a pertinent and important issue involving confusing and distracting evidence but that is a separate issue to be discussed later…

[97] In R. v. Karaibrahimovic, 2002 ABCA 102, [2002] 7 W.W.R. 452 (Alta. C.A.), after quoting the seminal passage from Ghorvei, the court said,

9      The difficulty is that there is no effective way of determining with certainty the factual foundation for credibility findings in other trials. Nor could one necessarily determine if the evidence, including expert evidence, had been rejected and if so, for what reasons. Reviewing all the evidence in a prior case would not assist since this would not reveal the reasons why a trier of fact might have accepted or rejected a witness’s evidence. Nor would a review of the decision in the earlier case necessarily prove determinative.

[98] One of the major objections against cross-examination on a previous judicial finding is the inability for the finder of fact to evaluate the finding without a proper foundation. In some circumstances, however, where counsel elicit the foundation as well as the ultimate opinion, this concern is substantially alleviated particularly in a judge alone situation like the current one.

[99] Finally, there is a line of authority which should be read together with the Ghorvei case law. It is well-established that a police officer’s prior conduct in violation of the Charter can be admissible on a subsequent trial if circumstances warrant. Justice Hill in R. v. Thompson, 2013 ONSC 1527, 1 C.R. (7th) 125 (Ont.S.C.J.) wrote:

204      Cross-examination of a witness about whether or not his or her testimony was rejected or disbelieved in another proceeding is irrelevant (R. v. Ghorvei (1999), 1999 CanLII 19941 (ON CA), 46 O.R. (3d) 63 (Ont. C.A.), at paras. 22-35; R. v. Barnes (1999), 1999 CanLII 3782 (ON CA), 138 C.C.C. (3d) 500 (Ont. C.A.), at paras. 14-7). Equally, the credibility conclusions of another court, or findings respecting a police witness’ compliance with Charter rights, are generally irrelevant to determinations to be made by a court in a subsequent and different trial dealing with similar issues. However, and while it is not strictly necessary to decide the point in this case, I am of the view that a trial court would not be foreclosed, in considering as a factor relating to the seriousness of a Charter breach, relevant history of a particular police officer, squad or force as unambiguously characterized by judicial officers in other cases.

(Emphasis Added)

[100] In Harflett, Lauwers J.A. incorporated in his Charter analysis evidence that the officer in question had been previously criticized by two other trial judges for searching cars. The officer had a policy of performing an “inventory” of all cars which he had stopped. In doing so he had shown a “pattern of abuse.”  Justice Lauwers held that this was an important factor tending towards exclusion on the first Grant inquiry:  paras. 40-45.

[101] Distinguishing Ghorvei from Harflett is not an easy task. The line between the two is a fine one. Reduced to its essence, Ghorvei prohibits cross-examining a witness based on their evidence not being accepted or being found untruthful by a previous judge. Harflett permits a judge to use prior Charter breaches by an officer to be used on the seriousness of the breach in deciding whether evidence should be excluded. If past police conduct is relevant as found in Harflett, cross-examination of a police officer on past conduct may well be proper because of its pertinence to credibility and propensity.

[102] Negative findings of credibility or reliability of a witness do not exist in a vacuum. They are necessarily associated with an aspect of the witness’ evidence, often as in this case, with evidence critical to the issue of whether the Charter of Rights and Freedoms has been breached. Here, for example, it is argued that P.C. Corona did not have grounds for the search of the Applicant and that his conduct was infected with racial profiling. It is further argued that in testifying that he did have grounds, he was untruthful. In this way, the issues of Charter compliance and credibility may often be inextricable the one from the other. If a witness’ non-compliant Charter conduct is fair game for cross-examination, so too in some circumstances are credibility and reliability findings based on alleged Charter infringing conduct.

1.   DID THE CROSS-EXAMINATION IN THIS CASE CONTRAVENE GHORVEI?

[103] In my opinion, Mr. Rippell in his cross-examination of P.C. Corona, successfully avoided the pitfalls described in the Ghorvei decision. Three prior cases were the subject of cross-examination: Mascoe, Mitchell and Jama. Beginning with the Mascoe decision, based on the comments of Justice Hill concerning P.C. Corona in that case, the gist of the cross-examination was that P.C. Corona had been criticized for his note taking in the past and therefore in this case he would have been particularly careful to take good notes.

[104] In Mascoe, Justice Hill stated in his reasons that P.C. Corona had made late note entries and failed to record times and important conversations and observations: see para. 5-6. In his conclusions, Justice Hill found that P.C. Corona had misled the Court with respect to his notes and that this impacted on his credibility and reliability: paras. 110-116. Specifically, he concluded,

110 … the altogether unsatisfactory content and presentation of the police witnesses’ evidence in this trial cannot be assigned simply to inexperience as police officers or to being witnesses in a courtroom.

…

114  While the court plays no part in marking or grading the quality of police note-taking in a particular case, or meting out disciplinary remand for real deficiencies, the quality of a police witness’ notes can, and did in this case, impact upon the credibility and reliability of the witnesses’ evidence.

(Emphasis Added)

[105] Mr. Rippell did not delve into this aspect of Justice Hill’s reasons. There was nothing objectionable about Mr. Rippell’s cross-examination with reference to Mascoe…

[106] With respect to the other two cases, Mr. Rippell began by asking about disciplinary proceedings against P.C. Corona. The officer said that there was one pending, but it did not involve the Mitchell or Jama cases. He was investigated with respect to the Mitchell case but was not charged. In Jama, the case in which Justice Renwick found three separate categories of untruths in P.C. Corona’s evidence, there were Police Service Act charges, but they were withdrawn with the stipulation that he undergo mediation with the accused. The accused, perhaps not surprisingly, ultimately chose not to participate. In cross-examination, it was acknowledged that there was another police disciplinary matter against P.C. Corona in which the charges were withdrawn also in favour of mediation with the complainant. Again, the complainant declined to participate in that instance.

[107] Mr. Rippell’s cross-examination based on Mitchell followed. In Mitchell, P.C. Corona had pulled over a Black motorist supposedly for not having his headlights on. After doing so, P.C. Corona did not inform dispatch that he had stopped the vehicle. Justice Stribopoulos preferred the accused’s evidence that his headlights had in fact been on. The principal reason why P.C. Corona was not believed was that Justice Stribopoulos found that he had a selective memory, remembering facts that could benefit the Crown on the application while not being sure about facts that could potentially accrue to the advantage of the defence. For example, P.C. Corona could not remember whether he observed that Mitchell was Black before he pulled him over. Knowledge that a driver is Black before being pulled over is usually an indispensable requirement if a traffic stop is later to be found to be influenced by racial profiling.

[108] Mr. Rippell’s cross-examination of P.C. Corona on Mitchell was mainly based on paragraph 77 of the reasons which Mr. Rippell read to the witness. Justice Stribopoulos found there that the failure to call in the stop to dispatch was deliberate and was to avoid scrutiny of his conduct,

77  A police officer engaged in a low-visibility abuse of his authority has good reason not to radio their police dispatcher. For example, if a police officer is detaining someone whom they consider suspicious without any objective justification, the officer has no way of knowing whether anything will come of the encounter. If nothing does, why memorialize the unconstitutional interaction by informing dispatch? Quite obviously, this is not the mindset of a conscientious police officer who is trying to discharge their duties lawfully and transparently.

[109] When confronted with this finding, P.C. Corona said he did not agree that he had acted deliberately to ensure it would not be known that he had made the traffic stop but said that he recognized that not calling it in to dispatch was a “huge error on my part.” ….

[112] But on a more general plane, it is arguable that the cross-examination brought out an important similarity between that case and this one: both featured a search without sufficient grounds and a subsequent effort to manufacture grounds after the fact to justify the search.  This will be discussed below.

[114] In the Jama judgment, Justice Renwick had found that P.C. Corona’s evidence explaining why he stopped the accused’s vehicle was unreliable and inaccurate for three reasons. He said,

12  On all of the evidence, I am unable to accept that there was a legitimate HTA detention when Constable Corona parked his police car in front of the applicant’s SUV. I have come to this conclusion for one reason, the officer’s evidence is not reliable. There are three examples of the inaccuracy of Constable Corona’s testimony.

[115] Justice Renwick went on to elaborate. He found, first, that the officer’s evidence was that as he was attempting to observe the accused who was driving a Dodge Durango, the vehicle suddenly sped up and made an illegal lane change in an intersection. P.C. Corona said his cruiser was very close to the Durango at the time. Video shown at trial by defence counsel convinced Justice Renwick that not only was there no lane change in the intersection, but that Officer Corona was not anywhere near 2-3 car lengths from the vehicle as it went through the intersection as he testified.

[116] Second, Justice Renwick did not believe that the officer as he had testified had done a licence check on the vehicle before the alleged illegal lane change in the intersection. The GPS data on the positioning of P.C. Corona’s vehicle made it impossible that he could have performed the licence check before the lane change he testified to seeing. Third, when P.C. Corona called in to dispatch that he had stopped Jama’s vehicle and everything was fine, he had already arrested Jama for breach of his recognizance. He did not inform dispatch of the arrest until several minutes later: Jama, paras. 10-20. Justice Renwick concluded at para. 60,

… Constable Corona masked his intentions and his behaviour behind legitimate police endeavours (traffic enforcement) and in so doing, he has harmed his credibility before the court.

[117] Armed with one additional video that had not been shown in the Jama case, Mr. Rippell reviewed P.C. Corona’s evidence from Jama with him in cross-examination. Mr. Rippell focussed exclusively on the first issue identified by Justice Renwick, the issue of whether there was an illegal lane change. Ms. Nadler objected. She was concerned that this would involve a side, collateral issue. Having earlier objected to the cross-examination on Mitchell as being an irrelevant opinion of another judge, and having read the Ghorvei decision, Ms. Nadler argued that Ghorvei prohibited this line of cross-examination. She was also concerned that there was another video the defence had obtained which they intended to use to cross-examine P.C. Corona that she had not seen. Ms. Nadler said there might be some reply evidence on the point. In the end, it was agreed that the cross-examination would proceed and when it was better known where it was going, Ms. Nadler could renew her objection.

[118] Two videos were played to the officer, the one shown originally in Jama and another one which had not been shown in that trial. The officer was compelled to agree based on the first video that the Durango had not made an illegal lane change at Duke of York and City Centre Drive as he had testified. Nor was his cruiser two to three vehicles away from the Durango. In fact, the cruiser is shown to be one and a half minutes behind the Durango. The officer agreed that it was a “gross inaccuracy.” The officer’s explanation was that the intersection in which he had said the lane change took place was inaccurate. He was mistaken. But he adhered to his earlier evidence that there was an unsafe lane change in an intersection. He was adamant and repeated over and over again that there had been no intention to mislead.

[120] In summary, neither of the videos showed an unsafe lane change in fact. Nor did they show that P.C. Corona was in a position to see a lane change if there had been one. He was a lengthy distance from the Durango in both instances.

[121]Portions of P.C. Corona’s in-chief and cross-examination on the issue from Jama were put to P.C. Corona and filed on the hearing. The transcript shows that in his in-chief testimony, P.C. Corona conveyed the unmistakable impression that he was driving in close proximity to the Durango for a considerable period of time and that he had seen an illegal lane change in the intersection. When confronted with the video in cross-examination, P.C. Corona had little choice but to admit he had been mistaken. Now, in this hearing, P.C. Corona alleged that the defence had held back a video which backed up his version. He had seen the video himself and it showed the lane change. This was not true. Although counsel agreed that there was a third video, they agreed that it had no relevance and did not shed light on the lane change or the proximity issues. The only two videos in existence bearing on the issue demonstrated beyond any question that P.C. Corona was more than a minute behind the suspect vehicle. Despite his protestations, there can be no doubt that P.C. Corona’s testimony in Jama was false.

CONCLUSIONS WITH RESPECT TO RELEVANCE AND ADMISSIBILITY OF PREVIOUS FINDINGS AGAINST P.C. CORONA

[122]In summary, the cross-examination of P.C. Corona on the three previous judgments in which there were criticisms of his evidence was, in my view, proper and relevant to the live issues in this application:

a)          Unlike Ghorvei, it was not the bare opinion of the three trial judges that carried the defence burden of relevance and admissibility. In each case, Mr. Rippell dug into the factual foundations of the previous judicial conclusions. The testimonial factors arising from the previous cases were connected to the live issues in this voir dire. This enabled the prior judges’ ultimate opinions to be evaluated and weighed. In this case, the foundation of the judicial opinions was laid bare.

b)          In my view, based on the evidence explained in their judgments, to quote Malabre, the prior judicial criticisms were “clear and express.” Also see Law Society of Upper Canada v. Evans 2008 CanLII 34276 (ON SCDC), [2008] O.J. No. 2729, 295 D.L.R. (4th) 281 (Ont.Div. Ct.) at para. 50 in which it was said that the key to permitting cross-examination was that there be “a clear finding of fabricated evidence.” In addition, in my view, unlike in Ghorvei, the judicial conclusions were eminently reasonable. Having read the three judgments, the basis for each set of findings is fully explained and, in my view, well justified. I agree with them. Furthermore, with respect to Jama, I had the advantage of viewing the same documentary evidence as did Justice Renwick as well as additional documentary evidence, the second video.

c)          The cases of Harflett and Thompson hold that previous misconduct by law enforcement officers can be admissible on a Charter The judicial conclusions in Jama and Mitchell relied upon by the defence, when broken down, consist of two components. The first was a conclusion of Charter violation. Both cases involved vehicle stops by P.C. Corona which were found by the trial judges to lack a reasonable basis and therefore constitute breaches of Sections 8 and 9 of the Charter. That directly correlates with the theme advanced in this case: as defence counsel put it, search first, develop grounds later. The second component found by the trial judges was untrustworthy testimony from P.C. Corona in an attempt to obscure the Charterviolations he committed. It is manifest that the two components of Charter violation and negative credibility assessments are intertwined. It makes little sense for the first to be admissible and fair territory for cross-examination while the second is held to be inadmissible.

d)          The evidence is highly probative to shed light both on P.C. Corona’s conduct and his credibility. In v. Gassyt, 1998 CanLII 5976 (ON CA), [1998] O.J. No. 3232, 127 C.C.C. (3d) 546 (Ont.C.A) at paras. 34-40; leave refused [1999] 2 S.C.R. v, it was argued that cross-examination of a police officer on outstanding criminal charges he was facing and the facts underlying them constituted fresh evidence and should be admitted on appeal. It was held by Justice Charron, as she then was, that cross-examination in these circumstances went only to credibility and was therefore insufficient to reasonably expect it to affect the result. The case at hand is different because the credibility of P.C. Corona was the pivotal issue on the application. Further, Justice Simmons in R. v. McNeil, 2006 CanLII 40087 (ON CA), [2006] O.J. No. 4746, 215 C.C.C. (3d) 22 (Ont.C.A.); reversed on other grounds R. v. McNeil, 2009 SCC 3 (S.C.C.), made this important distinction elaborating on Gassyt. Her conclusion holds equally true in the case at hand,

64      Unlike Gassyt, in my view, this is not a case where it is clear that evidence of the underlying misconduct relates solely to the arresting officer’s credibility. In Gassyt, there was no link between the criminal charges against the undercover officer and the charges against the appellants. In this case, the pending charges against the arresting officer include allegations that he had a cocaine habit and engaged in criminal (or dishonest) conduct directly linked to that habit. Because the charges against the appellant include allegations that the appellant was trafficking in cocaine, in my view, there is a reasonable possibility that evidence of the underlying misconduct would be admissible to support an inference that the arresting officer had an ulterior motive for approaching the appellant.

Also see R. v. Pascal, 2020 ONCA 287, 387 C.C.C. (3d) 236 (Ont.C.A.) at paras. 109-110

e)          The other judges’ conclusions that P.C. Corona was not truthful on the witness stand amount to findings of discreditable conduct. Discreditable conduct of a witness is a proper area for cross-examination. As referred to in Ghorvei at paragraph 29 quoted above, Justice G.A. Martin held in v. Gonzague (1983), 1983 CanLII 3541 (ON CA), 4 C.C.C. (3d) 505 (Ont.  C.A.) at pp. 510-511,

… an ordinary witness, unlike an accused, may be cross-examined with respect to misconduct on unrelated matters which has not resulted in a conviction: see R. v. Davison (1974), 1974 CanLII 787 (ON CA), 6 O.R. (2d) 103, 20 C.C.C. (2d) 424 at 443-44, leave to appeal to S.C.C. refused 6 O.R. (2d) 103n, 20 C.C.C. (2d) 424n

Also see R. v. Jama, 2012 ONSC 7095 (Ont.S.C.) at para. 14.

f)          Cross-examination of a police officer on discreditable conduct outside the scope of the indictment may be relevant and was highly relevant here. In R. v. McNeil, 2009 SCC 3 (S.C.C.), while analyzing the Crown’s obligation to disclose disciplinary records of the police, Justice Charron said at para. 54:

Where the misconduct of a police witness is not directly related to the investigation against the accused, it may nonetheless be relevant to the accused’s case, in which case it should also be disclosed. For example, no one would question that the criminal record for perjury of a civilian material witness would be of relevance to the accused and should form part of the first party disclosure package. In the same way, findings of police misconduct by a police officer involved in the case against the accused that may have a bearing on the case against an accused should be disclosed.

g)          C. Corona’s conduct in the past correlates with his conduct in this case and generates substantial probative value. Furthermore, P.C. Corona’s attempt to justify his conduct in his testimony in court is similar to the other three cases which, in broadly similar circumstances, found his evidence not credible. That is not determinative in itself but is one factor to take into consideration. People are not robotic and judging actions through character and propensity requires caution: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 (SC.C.) at paras. 35, 39-41. But the evidence here was cogent in contributing to the conclusion that the search was without proper grounds.

h)          It would not be fair to restrict cross-examination to convictions or outstanding charges, whether criminal or disciplinary in nature. While the procedural integrity of the criminal justice system is a given, there was no evidence with respect to the police disciplinary process on this voir dire. Its workings are collateral and were not explained. But it was frankly disturbing that P.C. Corona, as he testified, was charged with misconduct arising out of Justice Renwick’s explicit Jama findings based on the three categories of untruthfulness but the police charges were withdrawn in return for his agreement to go into mediation with Mr. Jama. It is not possible to go any further on this record. The point is that questioning by defence counsel as held in Gonzagueshould be permitted to go beyond formal findings of guilt in criminal or non-criminal proceedings.

i)            Addressing a concern raised in the authorities (see e.g. Bruff-Murphy v. Gunawardena), in my view, the cross-examination was not collateral nor was it an unnecessary or unjustified distraction. I must confess that during the cross-examination of P.C. Corona on the Jama videos, there was a sense that the hearing was going sideways and veering off course. But this entire cross-examination on the videos was only about an hour. It was clearly not caught by the collateral fact rule. The rule regulates the admission of extrinsic evidence, not the cross-examination of a witness on documentary evidence like the videos in this case: v. Khanna, 2016 ONCA 39 (Ont.C.A.) at para. 9; R. v. MacIsaac, 2017 ONCA 172 (Ont.C.A.) at para. 58; Landmark Vehicle Leasing Corp. v. Mister Twister Inc., 2015 ONCA 545 (Ont. C.A.) at para. 20. Furthermore, the rule applies principally to attacks on credibility alone. In this case, the cross-examination bled into character and propensity to act contrary to the Charter and was therefore of substantive use going to a material issue on the application: Dahl v. South Coast British Columbia Transportation Authority, 2018 BCCA 184 (B.C.C.A.) at paras. 14-16. Lastly, the collateral fact rule is one of trial efficiency which balances the importance of the evidence against the time consumed. It is discretionary: R. v. Ryan, 2011 NLCA 53 (N.S.C.A.) at para. 35; Law of Witnesses and Evidence in Canada, Peter Sankoff (online) § 12:26. In my view, the importance of Mr. Rippell’s cross-examination of P.C. Corona clearly outweighed any cost in trial efficiency. It was of considerable assistance in deciding this application.

j)            In the end, the approach of the English Criminal Court of Appeal recommends itself and, in my view, is not prohibited by Ghorvei:

There is … a balance to be struck between the need to make sure that points fairly to be made about a police officer’s previous misconduct are before the jury when his credibility falls to be judged in a later case and the need to avoid a smoke screen of unsubstantiated suspicion, innuendo and attempts to smear unfairly…

If there is clear evidence that a police officer, whose credit and credibility are significant in the case before the jury, has been guilty of serious malpractice on an earlier occasion, that necessarily damages his credibility when it falls to be judged on the second occasion, even though the malpractice alleged on the second occasion is of a different kind … We do however think it necessary to consider how significant in the case the police officer’s evidence is and what past misconduct he is shown to have committed.

R v. Malik, [2000] 2 Cr. App. R. 6 (C.A.) at pp. 11-12; also see R. v. Edwards [1991] 2 All E.R. 266 (C.A.) at p. 275

[123] To conclude, in law, a police officer is an ordinary witness in a criminal case, albeit often of central importance on a Charter voir dire. A police witness will almost always be diametrically opposed in interest to an accused person. That was the case here. There are inherent credibility advantages a police officer has over an accused, many of whom, like the Applicant here, are factually guilty. In these circumstances, care must be taken to ensure the defence is permitted to use the legitimate forensic tools at its disposal to effectively challenge an officer’s reliability and credibility. It is a simple matter of procedural fairness. [Emphasis added]

V. FINAL CONCLUSION: WAS THERE A BREACH OF SECTION 8 OR 9 OF THE CHARTER?

[127] … There could be no honest mistake about what was termed an obvious act of concealment. In logic, having arrived at this conclusion, the inference that the concealment did not occur must prevail over the alternative that it did. P.C. Corona, in addition, having searched the Applicant and found the gun, possessed a motive to back-fill his observations in order to justify his actions. P.C. Khan did not have any such motive. In the end, I find that the concealment of the satchel did not occur. The evidence of acts of concealment were grafted on to the true events. This conclusion stands at the centre of the Charter issues to be decided.

[131] The erroneous observation of the satchel must be analyzed within the context of the other factors and the police conduct explored above. This includes a building with a high crime rate and alleged gang activity and with 80% visible minorities as tenants. The conduct which suggests police overreaching encompasses believing that the presence of the “underage” females contributed to the grounds for the search, Jasmine not being questioned when she opened the apartment door, the failure of the officers to announce their purpose at any time, the entry into the apartment and the direction at the very outset to the males to keep their hands in sight, leading to an investigative detention. I also find that P.C. Corona “fudged” when he testified that he could not remember whether he spoke to Jasmine or not. Together, these circumstances lead to the conclusion that the police exploited their limited authority to remove unwanted persons in the apartment, instead investigating the occupants for criminality at large.

[132] With respect to the three instances of prior negative judicial findings, these were of considerable assistance in this application. There was substantial probative value derived from these other cases taken cumulatively, far outweighing any arguable prejudicial effect. This evidence was important substantively and going to credibility.

[133] All three of the other accused were Black, although none of the three judges made an explicit finding of racial profiling….

[134] The ultimate issue in this voir dire is whether P.C. Corona had reasonable grounds that the Applicant, Holloway, a young Black man, had a weapon secreted in the satchel. Relevant to that issue, in my view, is the evidence elicited by the defence that on two prior occasions P.C. Corona pulled over vehicles driven by Black men on grounds found to have been unjustified and, indeed, manufactured. In both, there were grounds to conclude that P.C. Corona knew that both men were Black before he pulled them over but yet he prevaricated on the witness stand. In this case, similarly, I have found that the search of Holloway was without sufficient grounds despite the evidence of P.C. Corona attesting to concealment of the satchel.

[135] In the end, the past conduct and past judicial findings add to the conclusion that the untruths and the police overreach were at least partially a consequence of racial profiling. In law, it is unnecessary to quantify the precise influence of racial profiling on the search: Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA), 21 C.R. (5th) 1, 167 D.L.R. (4th) 672, 131 C.C.C. (3d) 1 (Ont.C.A.) at para. 34; Dudhi at para. 62. Racial profiling of any degree leads to a violation of Section 8 of the Charter. I would go further here, however, and find that the evidence demonstrates that racial profiling played a substantial role in the conduct of the police leading to the discovery of the firearm on Holloway’s person. The false concealment of the satchel evidence cannot be ascribed to unconscious factors. It was deliberate and calculated.

[136] A breach of Section 8 of the Charter has been demonstrated. The grounds for the search were insufficient in law and were infected by racial profiling. It is unnecessary, in the circumstances, to give a final opinion with respect toSection 9 of the Charter.

24(2) Analysis Summarized

[The violation was serious and the impact was significant both because of the connection to racial profiling. The evidence was excluded]

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