This week’s top three summaries: R v Samuels, 2024 ONCA 786: s10(b)/24(2) SW #delay, R v Stettner, 2024 SKCA 101: #ineffective appeal, and R v BB, 2024 ONCA 788: Browne v Dunn #jury
[October 28, 2024] Charter s.10(b)/24(2) Delay of Counsel Contact for Search Warrants [Reasons by Dawe J.A. with L. Madsen J.A. concurring and J.C. MacPherson J.A. concurring with separate reasons]
AUTHOR’S NOTE: In cases where search warrants are executed on a property, courts have historically accepted police practices that limit an accused’s immediate right to counsel (s.10(b) of the Charter) due to concerns over evidence preservation. Police tend to restrict phone calls to prevent any risk of evidence destruction. The problem with Courts continuing to allow this approach is significant and difficult to understand. Lawyers are officers of the court and have an obligation not to counsel, aid or commit an offence such as obstruction of justice (the inevitable result of counselling someone to dispose of evidence). Given police control over the phone use to call counsel, it is puzzling why Courts continue to allow police to treat lawyers as a vector for the destruction of evidence to permit continuing delays in the provision of legal advice to detained persons.
This decision, although not altering current law, underscores that police must act expeditiously during a search to minimize delays in access to counsel. Importantly, it highlights that delaying warrant drafting until after an arrest unnecessarily prolongs the process, which courts may view as foreseeably unreasonable. The Court reaffirms that failure to ensure minimal delay can constitute a significant Charter violation under s.24(2), potentially justifying exclusion of evidence due to the lack of diligence and impact on the accused’s Charter-protected rights. This case reinforces the need for careful planning to avoid avoidable delays in the right to counsel.
[1] The appellant, Rashawn Samuels, was arrested by the Thunder Bay police as part of a drug investigation. The police advised him of his right to counsel and he asked to speak to a lawyer. However, the police had already decided that they would not let the appellant speak with counsel, or with anyone else, until after they searched his apartment. Nearly ten hours passed before the appellant spoke to his lawyer.
[2] The trial judge found that the police delay in letting the appellant speak to counsel violated his s. 10(b) Charter rights, but admitted into evidence a gun the police found when they searched the appellant’s car, as well as cash they found on his person. Based on this evidence, the appellant was convicted of various firearms offences and of possessing proceeds of crime.
[3] The appellant appeals against his convictions only, arguing that the trial judge erred by not excluding the gun and seized currency as a s. 24(2) remedy for the breach of his s. 10(b) Charter rights.
[4] I would allow the appeal. The breach in this case was a serious departure from well-established Charter standards. The police had grounds to obtain a search warrant for the appellant’s apartment the day before they arrested him, but chose to wait until after they made the arrest to apply for the warrant, and to suspend the appellant’s right to counsel in the interim. The entirely predictable result of this operational plan was that the appellant’s right to counsel was delayed much longer than was reasonably necessary.
A. FACTUAL BACKGROUND
[10] At 10:00 a.m., Det. Veal directed his team to arrest the appellant on sight. He and his superiors also decided that once the appellant was arrested, he would not be allowed to contact counsel until after the police obtained and executed the search warrants. Det. Veal was concerned that if other people learned about the appellant’s arrest, they might conceal or destroy evidence, but he denied that it was standard TBPS policy to delay access to counsel in these circumstances.
[11] Det. Veal also decided that because he was the “most familiar” with the appellant, he should join the arrest team waiting outside the hotel. This meant that he could not keep working on the search warrant application to have it ready to submit as soon as the appellant was arrested. He did not assign the task of finishing the search warrant application to another officer, because “[t]hey would’ve been starting a warrant from scratch whereas I had a warrant practically completed”.
[12] At 1:54 p.m., officers spotted the appellant walking from the hotel towards his parked vehicle. They arrested him for possession of cocaine for the purpose of trafficking. When the appellant was advised of his right to counsel, he asked to speak with counsel “right now”. He was not told at this time that his opportunity to speak with counsel would be delayed.
[14] While the appellant was being taken to the station, officers made a warrantless entry to the hotel room to secure it until they obtained a search warrant. The woman who had rented the room was also arrested and taken to the police station, but she was eventually released without charges.
[15] Shortly after the appellant arrived at the police station and was brought into the booking room, he expressed concern that his wrist had been broken during his arrest. A few minutes later, he suddenly collapsed onto the floor, although he quickly recovered sufficiently to get up and sit on a nearby bench. Paramedics were summoned. When the appellant was questioned about whether he had taken any drugs that day, he replied that he had “touched fentanyl”. The appellant was taken to another room and strip searched, but nothing significant was found.
[16]….The appellant asked if he would be able to call his lawyer from the hospital, but an officer told him: “No, not right now”. This prompted a lengthy argument, during which the appellant, who became increasingly agitated, repeatedly insisted that he be allowed to call his lawyer before going to the hospital, and questioned why he was not being allowed to do this….
(3) The search warrants
[18] Later that afternoon, at around 4:30 p.m., Det. Veal completed and submitted the search warrant applications. He received the signed warrants back two hours later. The police proceeded to search the hotel room and the apartment. They found nothing significant in the hotel room and a quantity of cocaine in the apartment.
[20] By 8:00 p.m., the hotel and apartment search warrants had both been executed. At 8:30 p.m., Det. Veal called PC Simon and said that the appellant could now speak with counsel. PC Simon asked the appellant for the number of the lawyer he wanted called, and the appellant gave a name and a phone number. When PC Simon called this number, he learned that it belonged to someone who was not a lawyer, but a member of the appellant’s family. (Mr. Lockyer advised that she is the appellant’s mother). PC Simon told the appellant that he needed to speak to an actual lawyer, and the appellant then gave him the name of counsel. PC Simon could not remember if the appellant also provided a phone number, or if PC Simon found it on the internet.
[21] For reasons that were not fully explained at trial, more than three more hours passed before PC Simon arranged for the appellant to speak with counsel, which he finally did at 11:50 p.m….
[22] Meanwhile, at 9:44 p.m., the police executed the warrant to search the appellant’s vehicle, and found a loaded handgun. PC Simon told the appellant that he was being charged with additional firearms offences before the appellant spoke by phone with counsel at 11:50 p.m.
B. ANALYSIS
(1) The breach of the appellant’s s. 10(b) Charter rights
(1) The law
[23] Section 10(b) of the Charter places two different duties on police officers who detain suspects. As Doherty J.A. explained in Rover, at para. 25:
Section 10(b) obliges the police to advise a detained person of the right to speak with counsel without delay and, if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel. [Citations omitted.]
There is no dispute in this case that the police properly complied with their informational duty, and that the appellant exercised his right by immediately asking to speak to counsel. The issue is with the subsequent police delay in carrying out their implementational duty.
[24] When access to counsel is delayed, as it was here, “[t]he burden is on the Crown to show that a given delay was reasonable in the circumstances”: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24; R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350 at para. 73. In R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at para. 71, Fairburn A.C.J.O. explained:
[I]n specific circumstances the implementational component of the right to counsel may be suspended. Those specific circumstances often involve concerns over police or public safety or the preservation of evidence. [Citations omitted.]
The need to execute search warrants can sometimes justify a suspension of the right to counsel. However, the police must have “turned their minds to the specific circumstances of the case”; they must have “reasonable grounds to justify the delay”; and they “must move as efficiently and reasonably as possible to minimize any ensuing delay”: Keshavarz, at paras. 71-75; see also Rover, at paras. 26-27, 33.
(2) The trial judge’s ruling
[25] The trial judge found that the police breached the appellant’s s. 10(b) Charter rights. He accepted the police evidence that what happened in this case was “a rare or very infrequent occurrence” in Thunder Bay, rather than a “routine practice”. However, he stated:
I conclude that priority was given, in this case, to police convenience rather than [the appellant’s] Charter rights. The decision to arrest [the appellant] prior to attempting to execute the search warrant was a sound and reasonable decision based on his history of violence with firearms. But grounds for the search warrant existed prior to [the appellant’s] arrest and the search warrant for the apartment could have been obtained prior to arresting [the appellant]. As Doherty J. noted in Rover [at para. 33]:
The police cannot create a justification for delaying access to counsel by choosing, for reasons of convenience or efficiency, to arrest an individual before seeking, obtaining and [executing] a search warrant.
[26] The trial judge observed that there was “no case specific evidence for delay” in this case, “except a general concern that information may be leaked”. He noted further that in Keshavarz, where this court found that the police were justified in suspending of the accused’s access to counsel while they applied for and executed search warrants, there had been “no plan, as there was in this case, to arrest and then [obtain] a search warrant”.
[27] The Crown does not challenge the trial judge’s finding that the appellant’s s. 10(b) Charter rights were infringed. I accept this concession. As Mr. Lockyer points out, there were a number of other ways the police could have achieved their objectives without delaying the appellant’s ability to speak to counsel at all, or at the very least, without delaying it for as long as they did.
[28] First, since Det. Veal already had grounds to obtain a search warrant for the apartment by September 1, 2020, he could have prepared and submitted the application for the warrant before the appellant was arrested. Even if it was reasonable for Det. Veal and his superiors to want to delay the apartment search until after the appellant had been arrested, “[t]here is no statutory time limit for the execution of conventional search warrants”: R. v. Jodoin, 2018 ONCA 638, at para. 18. A search warrant with no express execution date must be executed on the same day that it is issued, but a justice of the peace can also specify “a range of dates”: R. v. Saint, 2017 ONCA 491, 353 C.C.C. (3d) 467, at paras. 1, 19-21. Since Det. Veal’s grounds for believing that drugs were in the apartment were not particularly time-sensitive, he could have submitted his search warrant application on September 1, but asked the issuing justice to extend the execution period long enough to give the police time to first find and arrest the appellant. Indeed, Det. Veal agreed at trial that he knew he could have requested a 24-hour execution window.
[29] Second, even if Det. Veal did not have time to finish drafting the search warrant application on the morning of September 2, 2020 because he wanted to be on the arrest team, he could have assigned this task to another officer. His belief that another officer would have had to start “from scratch” was incorrect. Search warrant affiants may rely on investigative hearsay, so another officer could have simply adopted what Det. Veal had already drafted on the basis of information and belief.
[30] Third, Mr. Lockyer suggested in oral argument that the police might also have been able to make a warrantless entry to the apartment to secure it pending the issuance of a search warrant, as they did with the hotel room: see Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 11(7). There is no evidence that the police considered this option as a way of minimizing the delay in the appellant speaking with counsel.
[31] Even when circumstances exist that justify “some delay in granting access to counsel … the police must also take reasonable steps to minimize the delay”:Rover, at para. 27….
(3) The duration of the s. 10(b) breach
(1) When did the s. 10(b) breach start?
[36] I agree with the Crown that the breach of the appellant’s s. 10(b) Charter rights only started once it would have been feasible for the appellant to speak with counsel in private. Even if the police had not decided to delay the appellant’s ability to speak to counsel, it would still have taken them approximately 20 minutes after his arrest to transport him to the police station, and some additional time to complete the booking procedure and arrange a phone call. The appellant’s collapse onto the booking room floor a few minutes after he arrived at the station would then have delayed things further.
[37] However, in my view it would have been reasonably practicable for the police to have put the appellant in touch with counsel by around 2:45 p.m….
(2) When did the s. 10(b) breach end?
[38] I would find further that the breach of the appellant’s s. 10(b) Charter rights continued until he first spoke with counsel at 11:50 p.m., and that he did not waive his s. 10(b) Charter rights when he gave PC Simon his mother’s name and phone number at 8:30 p.m., rather than immediately giving the officer the name of a lawyer (which he did provide a few minutes later).
[39] I acknowledge that the appellant might possibly have been able to speak to counsel sooner if he had given PC Simon the name of a lawyer when he was first asked for one. This is a relevant consideration to bear in mind in the s. 24(2) analysis. However, I do not agree with the Crown that the appellant’s conduct amounted to an implicit waiver of his s. 10(b) Charter rights. “[T]he standard for waiver [is] high, especially in circumstances where the alleged waiver has been implicit”: R. v. Bartle, [1994] 3 S.C.R. 173, at p. 192. As Lamer C.J.C. noted inR. v. Prosper, [1994] 3 S.C.R. 236, at pp. 274-75:
Given the importance of the right to counsel … once a detainee asserts the right there must be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown. [Citations omitted.]
(2) Should the gun be excluded under s. 24(2)?
(3) The Grant factors
(1) The seriousness of the Charter-infringing state conduct
[50] The first Grant line of inquiry requires courts to consider whether admitting evidence would “[send] a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law”: Grant, at para. 72. This involves assessing “the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter”: Grant, at para. 73. The Grant majority added at para. 75:
“Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith.
[51] The trial judge found that TBPS, unlike the police in Rover, did not have a policy of routinely delaying detainees’ access to counsel: see Rover, at paras. 15, 29. I agree that this finding places the breach of the appellant’s Charter rights at a lower point on the spectrum of seriousness, as compared to the breach in Rover.
[52] Even so, the breach of the appellant’s s. 10(b) Charter rights was a significant departure from established Charter standards. “A serious breach of a long-established and well-understood constitutional right can lead to exclusion of evidence, even where the breach is not systemic in nature, or part of a pattern of police misconduct”: Hobeika, at para. 82. As McLachlin C.J.C. noted in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 25:
[W]hile evidence of a systemic problem can properly aggravate the seriousness of the breach and weigh in favour of exclusion, the absence of such a problem is hardly a mitigating factor.
See also R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 67.
[54] It is also an important consideration that the police investigation of the appellant took place almost two years after this court’s decision in Rover. The police practice in Rover of routinely delaying detainees right to counsel was not the only problem this court identified. Doherty J.A. also sharply criticized the police failure to consider alternative approaches that would have avoided any delay in putting the accused in touch with counsel, or at least reduced the length of this delay. As he explained at para. 39:
Apart entirely from never turning their mind to the actual need to delay the appellant’s access to counsel, the officers showed no interest in mitigating the delay. For example, there is no evidence that the police considered obtaining a search warrant before arresting the appellant. I see nothing in the circumstances that would have prevented the police from obtaining the warrant first. This would have avoided, or at least substantially minimized, any delay in affording the appellant his constitutional right to speak with counsel. Even if the police wanted the appellant out of the residence before executing the warrant, they could have obtained the warrant, watched the residence, arrested the appellant when he left and proceeded to execute the warrant. Had the police followed that procedure, they could have allowed the appellant immediate access to counsel. Instead, by arresting the appellant before obtaining the warrant, the police ensured that he would be held without access to his lawyer for hours. [Emphasis added.]
[55] Most of these criticisms apply with equal force here. As I have already discussed, there was no legal or practical impediment to the TBPS obtaining a search warrant for the apartment before the appellant was arrested, either by applying for it the day before and requesting an extended execution period, or by applying for it on the morning before the appellant’s arrest. To whatever extent Det. Veal and his superiors may have considered these options, they seem to have rejected them for no good reason. As in Rover, they instead adopted a course that “ensured that [the appellant] would be held without access to his lawyer for hours”: Rover, at para. 39.
[56] In my view, the seriousness of the breach of the appellant’s s. 10(b) Charter rights falls somewhere on the spectrum between the breaches in Rover and Hobeika, but closer to the Rover end.
[58] In contrast, the breach of the appellant’s s. 10(b) Charter right was the readily foreseeable consequence of the operational plan that the TBPS had deliberately adopted in this case. While the gravity of the breach would have been even worse if the TBPS, like the police in Rover, had been following a protocol that they used in every drug investigation, “[t]he absence of evidence of systemic noncompliance with Charter requirements by the police is not a mitigating factor”: McGuffie, at para. 67.
[59] In summary, I concluded that the first set of Grant factors weigh in favour of exclusion, albeit somewhat less heavily than in Rover.
(2) The impact of the breach on the appellant’s Charter-protected interests
[61] The trial judge addressed the second set of Grant factors by focussing exclusively on the lack of any causal link between the breach of the appellant’s s. 10(b) rights and the search of his vehicle where the gun was found. I agree that this lack of causal connection was a relevant consideration, and leads to the conclusion that the s. 10(b) breach had no impact on the appellant’s s. 8-protected privacy interest: see Grant, at para. 122; Rover, at para. 43. However, the trial judge erred in principle by ignoring how the breach affected the appellant’s other important Charter-protected interests.
[62] As Doherty J.A. observed in Rover, at para. 45:
The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.
See also R v. Dussault, 2022 SCC 16, at para. 56.
[63] In this case, the appellant was denied that lifeline for ten hours, nine of which I find were unjustified. It is apparent from the booking room video that he was confused and upset about why, after being told when he was arrested that had the right to speak to a lawyer, he was now being denied that right. Unlike the situation in Rover, where the accused sat in the cells for “several hours” without ever being told why he was not being allowed to speak to counsel, the police eventually did explain to the appellant that he would be allowed to speak to counsel once the police obtained and executed the search warrants. However, he was still not told how long he would have to wait.
[67] In contrast, the appellant in this case was not given the opportunity to speak with counsel until more than six and a half hours after he was arrested. As I have explained, I would find that approximately five hours and 45 minutes of this delay was unjustified, and infringed the appellant’s s. 10(b) Charter rights. Moreover, unlike the situation in Keshavarz, where the police let the accused speak with his friend, PC Simon did not allow the appellant to speak with his mother, and the appellant did not decline the officer’s subsequent offer to call his counsel of choice, but gave PC Simon the name of his lawyer. The ensuing three hours and 15 minutes that it took PC Simon to call this lawyer was not adequately explained….
[68] In my view, the record in this case does not support the inference that the appellant suffered no significant psychological distress from having been held incommunicado since his arrest. To the contrary, the booking video reveals that the appellant badly wanted to speak to his lawyer right away, and was upset and distressed when he learned that he would be denied the right to do so for some unknown time, which ultimately stretched well into the night
. [69] In these circumstances it was an error for the trial judge to dismiss the impact of the breach on the appellant’s protected interests as “neutral at best.” Even though the breach had no discernible impact on his right to privacy and his right against self-incrimination, it substantially interfered with his “security of the person interest protected by s. 10(b)”: Rover, at para. 47. To adopt what Doherty J.A. said in Rover, at para. 47:
I would hold that the s. 10(b) breach had a significant negative impact on the appellant’s Charter-protected rights. While that impact was certainly not as serious as it would have been had there been a causal connection between the breach and the obtaining of the evidence, it was nonetheless significant.
[70] This set of Grant factors accordingly favours exclusion of the evidence.
(3) Society’s interest in an adjudication on the merits
[72] However, the trial judge somewhat oversimplified the analysis by suggesting that the seriousness of the charges uniformly favoured admission. As the Grant majority explained at para. 84, “while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways”, since:
While the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.
[73] Although I agree with the trial judge’s conclusion that on balance the third Grant inquiry weighs in favour of admitting the seized evidence, the societal interest in preventing the justice system from being tainted by police misconduct also cannot be ignored. As Doherty J.A. put it in McGuffie, at para. 73:
[S]ociety’s concerns that police misconduct not appear to be condoned by the courts, and that individual rights be taken seriously, come to the forefront when the consequences to those whose rights have been infringed are particularly serious.
(4) Balancing the three sets of Grant factors
[74] As Doherty J.A. explained in McGuffie, at paras. 62-63:
The first two [Grant] inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [Citations omitted].
[75] In this case, the first Grant inquiry favours exclusion of the evidence, albeit somewhat less strongly than it did on the facts of Rover, which raised broader systemic concerns that on the trial judge’s findings of fact do not arise here.
[76] However, in my view, the second set of Grant factors weigh in favour of exclusion somewhat more strongly than they did in Rover, where the accused was unconstitutionally denied access to counsel for “almost six hours”. The breach of the appellant’s s. 10(b) Charter rights went on considerably longer, which increases the weight of the second set of Grant factors here.
[77] On balance, I would find that this is a case where, like in Rover, “the longterm repute of the administration of justice requires the sacrifice of the short-term benefit of an adjudication on the merits of this case”: Rover, at para. 49. The first and second sets of Grant factors both favour exclusion, and while the first set does so somewhat less strongly than it did in Rover, this is offset to some extent by the increased weight of the second set. In my view, this is not a case where the overall balance is tipped back in favour of admission by the strength of the societal interest in an adjudication on the merits. I would add that even if I agreed with my colleague MacPherson J.A.’s conclusion that the duration of the s. 10(b) breach in this case was shorter than I have found, this would not change my conclusion that the balance of Grant factors favours exclusion.
C. DISPOSITION
[78] In the result, I would exclude the seized gun and cash from evidence as a s. 24(2) Charter remedy for the violation of the appellant’s s. 10(b) Charter rights. Since this evidence was essential to the Crown’s case on the charges on appeal, I would allow the appeal, set aside the appellant’s convictions on Counts 2, 4, 5, 6 and 8 of the indictment, and enter acquittals on these counts. I would also lift the conditional stay of proceedings entered by the trial judge on Counts 1, 3 and 7, and enter acquittals on those counts.
[October 25, 2024] Appeals: Ineffective Assistance of Counsel and the Role of Trial Counsel on the Appeal [Leurer C.J.S., Kalmakoff J.A. and Drennan J.A.]
AUTHOR’S NOTE: An ineffective assistance of counsel appeal challenges the adequacy of legal representation at trial, questioning whether trial counsel’s performance compromised the fairness of the proceedings. The approach to involving trial counsel in these appeals varies; they might participate via affidavits, direct intervention, or representation by independent counsel. This decision clarifies that full intervention by trial counsel can overly complicate the appeal and risks duplicating the Crown’s defence of the trial outcome. Here, the court allowed a middle-ground approach: trial counsel could be cross-examined on their affidavit with their own lawyer present to conduct any necessary re-examination. This approach ensures trial counsel a degree of self-representation and the opportunity to protect their reputation without unduly impeding the appeal process.
I. INTRODUCTION
[1] After a trial in Provincial Court, Adam Stettner was convicted of a number of Criminal Code offences. He appealed against both the convictions and the sentence. Nicolas Brown was Mr. Stettner’s lawyer at trial. Mr. Brown applied to intervene in the appeal because, among other grounds, Mr. Stettner alleged that Mr. Brown had failed to provide competent representation.
[2] On May 8, 2024, we granted Mr. Brown leave to intervene in the appeal, but only to the limited extent of responding to the evidence that Mr. Stettner sought leave to introduce in the appeal, with reasons to follow. These are those reasons.
II. BACKGROUND
[3] At his trial, Mr. Stettner was found guilty of several charges, including various forms of assault against a woman who was his domestic partner. He was sentenced to a term of imprisonment.
[4] As noted above, one of Mr. Stettner’s grounds of appeal alleged that Mr. Brown failed to provide adequate representation at the trial, resulting in a miscarriage of justice. In connection with that ground of appeal, Mr. Stettner filed an application to introduce evidence on the appeal, in the form of an affidavit describing several aspects of Mr. Brown’s performance which Mr. Stettner said were deficient. In his factum, Mr. Stettner also pointed to various portions of the trial record that he said demonstrated the inadequacies in Mr. Brown’s conduct of his defence.
[5] Given the nature of Mr. Stettner’s appeal, it was subject to management proceedings in accordance with Criminal Practice Directive No. 9: Ineffective Assistance of Trial Counsel [PD9]. During the appeal management proceedings Mr. Brown indicated that he disagreed with many of the alleged facts set out in Mr. Stettner’s affidavit. His counsel advised that, pursuant to s. 10(1) of PD-9, Mr. Brown intended to file an affidavit in response to Mr. Stettner’s application to introduce evidence on the appeal, and that he would be applying to cross-examine Mr. Stettner on his affidavit. Counsel for Mr. Stettner indicated that he also wished to cross-examine Mr. Brown on his affidavit, and Crown counsel advised that the Crown may seek to cross-examine both Mr. Stettner and Mr. Brown.
[7]….Mr. Brown applied to be granted status as an intervenor, pursuant to Rule 5 of The Court of Appeal Criminal Appeal Rules (Saskatchewan) and Rule 17 of The Court of Appeal Rules. He took the position that, given the nature of Mr. Stettner’s appeal and the damage that an allegation of incompetent performance could do to his reputation and professional status, he should be permitted to file an affidavit and to cross-examine Mr. Stettner on the affidavit he filed in support of this ground of appeal….
[8] In short, we determined that Mr. Brown’s application to intervene in the appeal should be allowed, but only to a limited extent, and only with respect to Mr. Stettner’s application to introduce evidence on the appeal. In that regard, at the second stage of the hearing, which took place on June 6, 2024, Mr. Brown was permitted to file an affidavit in response to Mr. Stettner’s affidavit. We also ruled that, if Mr. Brown were cross-examined on his affidavit by either the Crown or Mr. Stettner, then counsel for Mr. Brown would be permitted to seek leave to conduct re-examination. However, we held that counsel for Mr. Brown would not be permitted to crossexamine Mr. Stettner during the second stage, file a factum, or make submissions on the appeal.
[9] As the matter played out, during that second stage of the hearing, Mr. Brown was crossexamined, and we granted leave to Mr. Brown’s counsel to conduct re-examination.
[10]….Notably, in disposing of Mr. Stettner’s appeal, we found it unnecessary to rule on the question of ineffective representation, because we concluded that other grounds were determinative of the outcome.
III. ANALYSIS
A. Appeals based on allegations of ineffective assistance of counsel – an overview of some key legal principles
[11] In R v G.D.B., 2000 SCC 22, [2000] 1 SCR 520 [G.D.B.], the Supreme Court observed that “the right to effective assistance of counsel extends to all accused persons” and is “seen as a principle of fundamental justice … derived from the evolution of the common law, s. 650(3) of the Criminal Code … and ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms” (at para 24). While the Criminal Code makes no specific provision for appeals based on allegations of ineffective assistance of trial counsel, s. 686(1)(a)(iii) permits a court of appeal to allow an appeal from a conviction where it is of the opinion that “on any ground there was a miscarriage of justice”. As it relates to the quality of legal assistance provided by defence counsel, a miscarriage of justice may be found to have occurred where (1) counsel’s overall performance was so incompetent that it affected the fairness of the trial, or (2) counsel’s ineffective assistance calls into question the reliability of the verdict even if the fairness of the trial was not affected (G.D.B. at para 28; R v Power, 2022 SKCA 24 at para 24, [2022] 10 WWR 263 [Power]; R v Belcourt, 2020 SKCA 73 at para 48, 389 CCC (3d) 303 [Belcourt]).
[12] In order to succeed in an appeal alleging ineffective assistance of counsel, the appellant must establish two things: (1) that counsel’s acts or omissions constituted incompetence; and (2) that a miscarriage of justice resulted (G.D.B. at para 26; R v White, 2022 SCC 7 at para 6; R v Brick, 2023 SKCA 107 at para 50 [Brick]). In other words, a claim of ineffective assistance has two components: performance and prejudice. The initial focus in an appeal will generally be on the prejudice component. If it is apparent from the record that no prejudice was suffered due to the alleged incompetence (i.e., there was no miscarriage of justice), then the claim should be disposed of on that basis and the performance part of the claim need not be considered (G.D.B. at para 29; see, also: R v Dreaver, 2014 SKCA 133 at para 29, 446 Sask R 313 [Dreaver]; Belcourt at para 49; R v Aisaican, 2019 SKCA 58 at para 22, [2020] 1 WWR 108; and R v Graham, 2019 SKCA 63 at para 27, [2019] 12 WWR 207 [Graham]).
[13] Where it is necessary to consider the performance component of a claim of ineffective assistance, the competence of the assistance provided by trial counsel is measured against a standard of reasonableness. In that regard, an appellate court’s assessment begins from a presumption that trial counsel’s conduct fell within the wide range of reasonable professional assistance, and the appellant bears the onus of establishing that the acts or omissions of counsel fell outside of that range. The wisdom of hindsight has no part in this assessment (G.D.B. at para 27; see also Power at para 26; Graham at para 25; and Brick at para 50).
[14] An appellant who alleges that trial counsel provided ineffective assistance must establish the facts upon which that claim is made (R v Kim, 2011 SKCA 74 at para 36, 272 CCC (3d) 15 [Kim]). In some instances, the facts that demonstrate incompetent representation and a resulting miscarriage of justice may be apparent from the trial record. However, an appellant alleging ineffective representation will often need to adduce evidence on the appeal to make out the factual basis for their claim.
[15] Section 683 of the Criminal Code delineates the powers of a court of appeal to receive evidence on an appeal. It reads, in relevant part, as follows:
683(1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice
(a) order the production of any writing, exhibit or other thing connected with the proceedings;
(b) order any witness who would have been a compellable witness at the trial, whether or not he was called at the trial,
(i) to attend and be examined before the court of appeal, or
(ii) to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose;
(c) admit, as evidence, an examination that is taken under subparagraph (b)(ii);
(d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness;
[16]….Where an appellant seeks to adduce evidence on appeal to support a claim of ineffective representation, a modified version of the well-known test set out in R v Palmer, [1980] 1 SCR 759, is applied to determine its admissibility. In an appeal of this nature, such evidence may be admitted if it is: (a) relevant to an issue before the appellate court; (b) credible; and (c) sufficient, if uncontradicted, to reasonably be expected to have affected the result (Dreaver at para 33; Belcourt at para 57; R v Bear, 2020 SKCA 86 at para 20, 389 CCC (3d) 437; Power at para 30).
B. The reasons for permitting trial counsel to intervene in this case
1. The unique nature of appeals alleging ineffective counsel
[17] It is trite to say that the only parties in a criminal case are the accused person(s) and the Crown. The same holds true for criminal appeals where, when the appeal is from conviction, the only parties are the appellant(s) and the Crown. This is because, in our legal system, the offences enumerated in criminal statutes are characterized as offences against the state. The bipartite nature of a criminal appeal means that, even where the performance of trial counsel is the focus of the proceeding, trial counsel does not have standing to participate in the appeal, and it will generally fall to the Crown to explain their conduct (R v Joanisse (1995), 102 CCC (3d) 35 at para 70 (Ont CA); see also R v Ramos, 2020 MBCA 111 at para 134, aff’d 2021 SCC 15, [2021] 1 SCR 528 [Ramos]).
[18] An appeal in which an allegation of ineffective counsel is raised does not always fit comfortably into this bipartite model. As noted above, an appellant who contends that their trial counsel performed incompetently must be able to point to evidence to support their contention.This will often take the form of an affidavit or affidavits setting out the acts or omissions of the lawyer which, from the appellant’s perspective, demonstrate incompetence. The necessary evidentiary base may also include, or be formed by, relevant portions of the trial record. Regardless of their evidentiary basis, the allegations made by an appellant in this sort of an appeal will almost invariably cast damaging aspersions on the work performed by their counsel at trial and will often raise matters that delve into the details of their solicitor-client relationship.
[19] Because of that, appellate courts have generally recognized that the interests of justice favour permitting trial counsel to provide evidence in response to that provided by the appellant, to ensure that the Court has before it the factual record required to fully assess the merits of the appellant’s claim (see, for example: Cormier v R, 2012 NBCA 76; R v Hart, 2017 NBCA 45; R v C.(L.S.), 2003 ABCA 105 at paras 30–31 [C.(L.S.)]; R v Delisle (1999), 133 CCC (3d) 541 (Que CA); R v Le (T.D.), 2011 MBCA 83 at paras 178–179, 275 CCC (3d) 427; R v Atzenberger, 2018 BCCA 224 at para 3; R v Evans, 2021 BCCA 360 at para 10; R v Mulumba, 2022 ABCA 104 at paras 15–16; R v Meer, 2015 ABCA 141 at paras 35–42, aff’d 2016 SCC 5, [2016] 1 SCR 23; R v White, 2021 NLCA 39 at paras 5–7, 467 DLR (4th) 29; R v Freake, 2012 NLCA 10 at para 13 [Freake]; R v Chafe, 2022 NLCA 12 at para 9 [Chafe]; and R v Greenham, 2020 NLCA 14 at paras 8–9 [Greenham]). In R v Archer (2005), 202 CCC (3d) 60 (CanLII) (Ont CA), Doherty J.A. explained this concept by stating as follows:
[159] Trial counsel was entitled, if not duty bound, to respond to the appellant’s allegations against him. Not only was he entitled to respond so as to vindicate his own personal and professional reputation, there was a real danger that this court would be misled if only the appellant’s version of the relevant events was before it. Counsel’s duty to the proper administration of justice required that he cooperate in placing before the court the full picture of the relevant events. …
[20] In a similar vein, in R v West, 2009 NSCA 63 [West], Saunders J.A. observed that, where the fresh evidence introduced by an appellant impugns the competence of the advice provided by trial counsel, “it is necessary for [the] Court to have the opportunity for full examination of that advice before deciding whether it in any way caused or contributed to [the appellant’s] conviction” (at para 37). In C.(L.S.)., the Alberta Court of Appeal also identified the importance of a full evidentiary picture where an appellant makes allegations about the inadequacies of trial counsel’s advice or their conduct of the defence, stating as follows:
[30] We note an increasing tendency on the part of appellate counsel to allege ineffective representation at trial without affording trial counsel the opportunity to respond to that allegation and explain the trial strategy, limitations and instructions.
It would be inappropriate for this court to rule on whether the representation provided by trial counsel was ineffective or inadequate, absent an opportunity for input from that counsel.
[31] The nature of the onus on the accused also supports the need for evidence from trial counsel.
Absent evidence revealing that the approach of trial counsel was not the result of client instructions, strategic choices, or ethical constraints, it may be very difficult for an appellant to overcome [the] presumption of competence [referenced in R v G.D.B., [2000] 1 SCR 520, 2000 SCC 22 at para 27].
2. Establishing a procedural framework
[21] Although a review of the relevant jurisprudence suggests the existence of a consensus that it is necessary for an appellate court faced with an allegation of ineffective counsel to receive evidence from counsel whose conduct is impugned, the Criminal Code does not define how that evidence is collected, presented and tested, or the role that trial counsel plays in the appeal hearing. As a result, their exact role is difficult to characterize and may vary depending on the circumstances of the appeal. The jurisprudence from other provinces reveals that a range of different approaches have been employed.
[22] In some cases, appellate courts have assigned to the Crown the responsibility to obtain and tender an affidavit from trial counsel in response to the appellant’s fresh evidence application, with trial counsel having no other role in the appeal. This appears to have occurred in Archer; R v Aulakh, 2012 BCCA 340; R v K.K.M., 2020 ONCA 736; R v Mavros, 2022 ABCA 157; R v Hobbs, 2020 ABCA 156; and R v MacKenzie, 2007 NSCA 10.
[23] There are some cases in which courts have permitted trial counsel to file a response affidavit, tendered by the appellant as part of their application to introduce fresh evidence, and have granted no other form of standing to trial counsel in the appeal. Examples of this approach include L.T.D.; Ramos; Vail v R, 2019 NBCA 18; Melanson v R, 2021 NBCA 14; Boucher v R, 2021 NBCA 36; Bourgeois v R, 2022 NBCA 62; Gardiner v R, 2010 NBCA 46; Cormier v R, 2012 NBCA 76; Hart v R, 2017 NBCA 45; Smith-Kingsley v R, 2021 NBCA 51; Holder v R, 2024 NBCA 61; Ozolin v R, 2024 NBCA 51; and R v Lafrance, 2022 ABCA 182.
[24] In M.L. v R, 2019 NBCA 12, the New Brunswick Court of Appeal, of its own initiative, solicited a response affidavit from trial counsel in an appeal where ineffective counsel was alleged, but did not grant trial counsel any other form of standing.
[25] There are also cases in which trial counsel have been granted status as an intervenor so that they may file their own affidavit as fresh evidence. Examples of this approach include West; R v Fraser, 2011 NSCA 70 [Fraser]; Freake; Chafe; and Greenham.
[26] Finally, in some cases, trial counsel have been granted standing to participate in the appeal in additional ways, including by cross-examining the appellant on their affidavit, or by making submissions on the appeal proper. Examples include Fraser; Chafe; Greenham; R v MazhariRavesh, 2022 MBCA 63, [2023] 5 WWR 1; R v Graham, 2014 ONCA 556; R v J.B., 2011 ONCA 404; R v Ross, 2012 NSCA 8; R v Ross, 2023 NSCA 13; and Benrouayene c R, 2018 QCCA 1891.
[28] In Saskatchewan, PD-9 was developed by the Court to guide the procedure to be followed in cases where ineffective counsel is raised as a ground of appeal. The practice directive describes the process that a party making an allegation of ineffective counsel should follow to marshal their appeal. As part of this, PD-9 contemplates that if the “contents of trial counsel’s file are considered relevant to the appeal, a waiver of solicitor-client privilege will need to be provided by the appellant” (s. 7(2)) and it provides a mechanism by which this can be handled by the appeal management judge. PD-9 also directs that, where an appellant is relying on more than the record of proceedings as the basis for the allegation of ineffective counsel, they will make an application for fresh evidence and that the lawyer whose conduct is called into question may file a responding affidavit. Under Rule 41 of The Court of Appeal Criminal Appeal Rules (Saskatchewan), the admission of fresh evidence is always at the discretion of the panel hearing an appeal and PD-9 directs that any party seeking leave to cross-examine on an affidavit notify the appeal management judge and all other appeal management participants and trial counsel, leaving it to the panel to determine whether cross-examination will be permitted (see s. 11(2)).
[30] Following the publication of PD-9, Jackson J.A. (in Chambers, considering an application for court-appointed counsel under s. 684) described the applicable process as follows in R v McDormand, 2020 SKCA 83:
[10] According to this Court’s practice, an appellant who relies on more than the court record to support a claim of ineffective assistance … “must file an application to adduce fresh evidence, supported by an affidavit” … [s. 9 of PD-9]… In all likelihood, it will be necessary for [the appellant] to waive solicitor and client privilege, which will lead to disclosure of all or part of [their] former lawyer’s file “to some or all parties to the appeal” and to the Court (s. 5(2)). The disclosure process can be delicate and is ideally accompanied by advice from someone who understands what is at stake for a convicted appellant. An ineffective counsel claim may also require [the appellant] to be cross-examined on [their] affidavit with the potential need for [them] to cross-examine [their] former counsel (s. 11). […]
[31] Thus, as mentioned earlier, where an appellant raises incompetent trial counsel as a ground of appeal, they will typically be required to make an application to introduce fresh evidence and to file an affidavit, unless they are relying solely on the trial record and the transcripts to establish this ground. Once such an application is made, and the appellant’s affidavit is filed alongside it, trial counsel will typically be afforded an opportunity to submit a reply affidavit (see: R v Asapace, 2011 SKCA 139 at para 44, 279 CCC (3d) 427 [Asapace]; Clarke at para 2; Graham at para 29; Kim at para 30; R v Moore, 2002 SKCA 30 at para 3, [2002] 7 WWR 424; Power at para 29; R v Short, 2012 SKCA 85 at para 7, 399 Sask R 192 [Short]; R v Smith, 2007 SKCA 71, 223 CCC (3d) 114 [Smith 2007]; R v Smith, 2017 SKCA 81 at para 32, 355 CCC (3d) 505 [Smith 2017]; R v Woods, 2019 SKCA 84 at para 59, 379 CCC (3d) 356 [Woods]).
[32] It has frequently been the practice in this Court that, when the trial lawyer submits their own response affidavit in an appeal of this nature, it is tendered by the Crown (see, for example: Dreaver at para 37; Smith 2017 at para 34; and Woods at para 59). This approach is premised on the fact that, even though an allegation of incompetent performance may potentially affect a lawyer’s professional reputation and standing, it is the Crown that is the respondent in the appeal, and not trial counsel. It has also been the general approach of this Court that, following the submission of this evidence, the Crown will be entitled to cross-examine the appellant, and the appellant will be entitled to cross-examine trial counsel (see: Graham at para 29; Kim at paras 14, 21, 29; Moore at para 3; Power at para 36; and Smith 2007 at para 3). That said, cross-examination does not occur as a matter of course. It is, fundamentally, the responsibility of the panel to determine if cross-examination will be permitted and either party can decline the opportunity to cross-examine a witness on their affidavit (Clarke at para 2; S.G.T. at para 66; Short at para 7; and Smith 2017 at para 34).
[33]….PD-9 does not explicitly address the standing of trial counsel to participate in the appeal….
[34] In that regard, there are a number of cases involving allegations of ineffective counsel in which trial counsel was permitted to file a factum and to make submissions on the appeal hearing (see, for example: S.G.T.; Asapace; R v Madraga (9 September 2016) Regina, CACR2418 (Sask CA); R v P.R., 2018 SKCA 27, 365 CCC (3d) 120; R v Hoskins (10 September 2016) Regina, CACR3053 (Sask CA); R v Kwon, 2020 SKCA 56, 386 CCC (3d) 553; R v Bear, 2022 SKCA 69, [2023] 6 WWR 252; and R v Wolfe, 2021 SKCA 39, 404 CCC (3d) 141). There have also been cases in which trial counsel have been granted the right to participate in the fresh evidence hearing by cross-examining the appellant and other deponents on their affidavits before this Court, in addition to filing a factum and making submissions (see: Kim; Belcourt; and Brick).
[35] In a number of cases, trial counsel have declined to make oral or written submissions on the appeal, choosing instead to simply provide a response affidavit, with the assistance of their own lawyer, in relation to the appellant’s fresh evidence application (see: Dreaver at para 32–33; R v Clarke, 2016 SKCA 13; and R v Taylor, 2023 SKCA 49).
[36] In Woods and Power, trial counsel were permitted to be re-examined by their own lawyer after having been cross-examined by counsel for the appellants in the fresh evidence applications. In both of those cases, trial counsel were also permitted to file a factum and to make full submissions on the appeal.
[38] As these cases illustrate, this Court has permitted trial counsel to participate in appeals of this nature in various ways that go beyond being a mere witness in a fresh evidence application. Having said that, the fact that none of the reported decisions provide reasons to explain why trial counsel was granted the form of standing or level of participation that they were suggests that the participation of trial counsel in the appeal has rarely been a point of contention, and, as such, it has not received the full consideration of a panel of this Court. This case provided an opportunity for the Court to provide some direction in connection with this issue, in the context of the facts of this appeal, recognizing that the role of trial counsel in appeals of this sort will generally be factsensitive and should be determined on a case-by-case basis.
3. The appropriate role for trial counsel in this case
[39] Bearing in mind the applicable provisions of the Criminal Code, the dictates of PD-9, and the guidance from the relevant jurisprudence, we determined that it was appropriate to permit Mr. Brown to intervene in the appeal, but only to the limited extent set out earlier in these reasons.
[40] In coming to that conclusion, we first considered the nature of the allegations made by Mr. Stettner and the averments contained in his affidavit. In that respect, Mr. Stettner purported to give evidence about several matters that were not part of the trial record, and which impugned various aspects of Mr. Brown’s performance and the nature of their solicitor client relationship. These included the circumstances under which Mr. Brown was retained to act for Mr. Stettner, the quality of Mr. Brown’s trial preparation, the nature and quality of the advice he provided to Mr. Stettner, and whether he followed Mr. Stettner’s instructions. Given all of that, it was obvious that the proper exercise of our truth-seeking function required that Mr. Brown be given an opportunity to provide evidence in response so that we would have before us the necessary basis to assess the merits of Mr. Stettner’s claim that he had not received competent representation.
[41] We also agreed with Mr. Brown that, because he was not a party to the appeal, the appropriate vehicle for his participation was as an intervenor. We tested his application for the grant of intervenor status against the principles that apply generally to such requests.
[42] As this Court recently noted in Saskatchewan (Minister of Education) v UR Pride Centre for Sexuality and Gender Diversity, 2024 SKCA 74 [UR Pride], the considerations set out in R v Latimer (1995), 128 Sask R 195 (WL) (CA) [Latimer] continue to guide the determination of whether a request to intervene in an appeal should be permitted. Those considerations, as stated in paragraph 5 of Latimer, are:
(1) whether the intervention will unduly delay the proceedings; (2) possible prejudice to the parties if intervention is granted; (3) whether the intervention will widen the lis between the parties; (4) the extent to which the position of the intervener is already represented and protected by one of the parties; and (5) whether the intervention will turn the court into a political arena.
[43] In addition to the foregoing list, the Court in UR Pride observed that any possible prejudice to the intervenor if the intervention is denied should also be considered. The Court also noted that none of the listed considerations are determinative and stated that “each intervention request must be assessed individually in the context of the case before the Court” (at para 8). In that vein, we would note that the unique role that trial counsel plays in the Court’s truth-seeking function at the evidentiary stage of an ineffective counsel appeal in a criminal case means that some of the considerations identified in the Latimer / UR Pride framework may not be relevant or may have little bearing on the outcome of an intervenor application in an appeal of this nature.
[44] Applying the foregoing considerations to the circumstances of the present case, we determined that Mr. Brown should be permitted to intervene in the appeal, but only to a limited extent.
[46] We were also of the view that permitting Mr. Brown to intervene would not widen the lis between the parties. The determination of the ineffective counsel aspect of Mr. Stettner’s appeal would turn on whether he could establish the performance and prejudice components described in G.D.B.
[47] A significant consideration, in our view, was the possible prejudice to the parties if intervention were permitted, or to Mr. Brown if intervention were denied. In that regard, we were mindful of the importance of having Mr. Brown’s evidence before the Court as part of the fresh evidence application. Given the nature of the allegations made by Mr. Stettner, it was apparent that Mr. Brown’s response would likely require him to delve into matters of trial strategy and solicitorclient discussions. Denying Mr. Brown’s application to intervene would mean that the Crown would be tasked with marshalling Mr. Brown’s evidence which, as Saunders J.A. described in West, could be problematic, especially if a new trial were ordered:
[32] … obliging [trial counsel] to respond to [the appellant’s] allegation through Crown counsel acting as his proxy, could require him to turn over the contents of his entire file. Those materials could then possibly be used by the Crown for purposes unrelated to the preparation of an affidavit responding to the appellant’s application for leave to introduce fresh evidence. There may be elements of strategy from the first case which ought not to ever be seen by the Crown.
[33] As the jurisprudence makes clear, the waiver of solicitor-client privilege may not trigger or oblige a complete disclosure of all communications. This feature is especially important where, as here, a re-trial could be ordered if [the appellant] were successful in his appeal on the merits. To have enabled the Crown to pour over [trial counsel]’s file in its entirety, would seriously prejudice the appellant in his (future) defence of those charges. My concern here is speculative but its consequences are sufficiently serious as to support permitting [trial counsel] to intervene. [Emphasis by PJM]
[48] On the other side of that coin, we were of the view that permitting Mr. Brown to play a greater role as an intervenor, for example, by cross-examining Mr. Stettner, would be unduly prejudicial to Mr. Stettner, as it would effectively require him to confront two opponents.
[49] We were also unable to see any meaningful divergence of interest between the Crown and Mr. Brown with respect to the questions of whether Mr. Brown’s performance at trial met the standard of reasonable professional assistance or whether a miscarriage of justice had occurred. In other words, Mr. Brown’s position on those issues was already represented by one of the parties to the appeal. Permitting Mr. Brown to file a factum or make oral submissions would do no more than add a voice to the chorus on the side of the Crown.
[50] Finally, we were mindful of the fact that new evidence that Mr. Brown would not have been able to anticipate, and which he would not have had the opportunity to address in his affidavit, may arise from cross-examination. For that reason, we concluded that it would be appropriate to grant standing to permit Mr. Brown’s counsel to apply for leave to re-examine him after the other parties had completed their cross-examination, because doing so would serve the truth-seeking function of the Court.
IV. CONCLUSION
[51] Accordingly, balancing all of the relevant considerations, we determined that the interests of justice favoured permitting Mr. Brown to intervene, but only to the extent of filing a response affidavit through his own counsel in the fresh evidence application and by seeking leave to be reexamined by his own counsel if he were cross-examined.
[October 25, 2024] The Principle from Browne v Dunn [Reasons by Winteringham J.A. with Newbury and Grauer JJ.A. concurring]
AUTHOR’S NOTE: The rule in Browne v Dunn is rooted in trial fairness, requiring that opposing witnesses be confronted with contradictory evidence on key issues. However, this rule doesn’t mandate counsel to challenge every minor inconsistency or detail in a witness’s evidence. Witnesses should only be alerted to material contradictions, ensuring fairness without an exhaustive back-and-forth on all possible discrepancies.
Applying harsh repercussions for every unchallenged detail, particularly in trials with only two primary witnesses (typically the accused and complainant), can severely undermine the defense’s case. Jury instructions that reduce the weight of an accused’s evidence due to minor Browne v Dunn non-compliance may unfairly tip the scales against them. Trial judges should consider less severe measures, such as recalling witnesses, rather than penalizing the defence heavily. This nuanced approach preserves fairness while maintaining the integrity of the trial process.
[1] The appellant was charged with 2 counts of sexual interference against his daughter, L.B. Following a trial by jury, he was acquitted of the charge of sexual interference when L.B. was between 5 and 7 years old (count 1) and convicted of the charge of sexual interference when L.B. was 13 years old (count 2). L.B. was 17 years old when she testified at trial. The appellant was sentenced to three years’ imprisonment.
[2] The appellant argues that the trial judge committed two reversible errors: 1) she erred in finding that the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.) was breached and, in consequence, in giving a jury instruction that was prejudicial to the appellant; and 2) she erred in her jury instruction that L.B.’s prior consistent statements could be used to assess her credibility.
[3] At the conclusion of oral argument, we advised the parties that the appeal was allowed and a new trial ordered, with reasons to follow. These are our reasons. Ground One: Browne v. Dunn ruling and jury instruction.
Ground One: Browne v. Dunn ruling and jury instruction
[5] The trial judge found the rule in Browne v. Dunn was breached because the appellant’s trial counsel did not put various points to F.B. during her crossexamination in respect of which the appellant subsequently led evidence to contradict her, namely, that: (i) the appellant did not confess to touching L.B. during the first telephone conversation; (ii) she did not record either of the two conversations; (iii) F.B. did not tell the appellant that she was recording the conversations; and (iv) it had been F.B., and not the appellant, who brought up the topic of L.B.’s masturbation that the appellant allegedly said led to the sexual touching. The trial judge determined that F.B. should have been given an opportunity to respond to these points.
[6] The trial judge gave a final instruction to the jury in which she repeated the points that she found the appellant should have put to F.B. and instructed them that they could take into account the appellant’s failure to do so in assessing his credibility. She concluded her instruction as follows:
Ultimately, it is for you to decide whether the appellant admitted that he touched [L.B.] in a phone call or phone calls to [F.B.]. As I have told you, one factor you can consider as you assess [the appellant’s] credibility on this point and determine how much weight to give his evidence is the opportunity given to [F.B.] to challenge his account. Again, it is for you to decide.
[7] Following this instruction, the trial judge gave a related correcting instruction concerning the appellant’s counsel’s closing submissions as to whether it was necessary to put questions to F.B. on the areas the trial judge had just discussed, or what other remedies could have been used such as recalling a witness. In this instruction, the trial judge reminded the jury that counsel should have crossexamined F.B. on the four points she had identified.
[8] We agree that the trial judge erred in applying the rule in Browne v. Dunn when there was no unfairness or prejudice to F.B. or the trial process by the appellant not explicitly putting to F.B. the various points outlined by the trial judge. Ordinarily, the trial judge’s decision about whether the rule has been offended and unfairness has resulted is entitled to considerable deference on appeal: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 90, leave to appeal refused, [2016] S.C.C.A. No. 203. However, in in the circumstances of this case, where F.B. had a full opportunity to provide her version of events and the appellant’s denial of those events was clear, the trial judge’s finding that the rule was breached and her jury instruction that was prejudicial to the appellant amount to a reversible error that displaces appellate deference.
[9] The rule in Browne v. Dunn is rooted in considerations of fairness. As a matter of fairness, proposed contradictory evidence should be put to a witness so that the witness has an opportunity to explain and respond. However, it is not an inflexible or absolute rule and “counsel must not feel obliged to slog through a witness’s evidence-in-chief, putting him on notice of every detail that the defence does not accept”: R. v. Verney, 1993 CanLII 14688 (ON CA), at p. 376. As this court further explained in Quansah, at para. 81:
Compliance with the rule in Browne v. Dunn does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. The crossexamination should confront the witness with matters of substance on which the party seeks to impeach the witness’ credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness’ story is not accepted. It is only the nature of the proposed contradictory evidence and its significant aspects that need to be put to the witness. [Citations omitted; italics in original, underline added]
[10] Moreover, as Quansah instructs, at para. 82:
In some cases, it may be apparent from the tenor of counsel’s cross-examination of a witness that the crossexamining party does not accept the witness’ version of events. Where the confrontation is general, known to the witness and the witness’ view on the contradictory matter is apparent, there is no need for confrontation and no unfairness to the witness in any failure to do so.
[11] This was not a case where anyone was taken by surprise by a document or other evidence, where the appellant’s position was unknown, or where the witness would have provided a different or further explanation or response had the impugned issues been specifically asked in cross-examination. Here, the appellant pled not guilty and his denial of the allegations forming the basis for the charges was evident. The tenor of his counsel’s cross-examination of F.B. clearly indicated that the appellant was challenging her version of events. Importantly, F.B. had a full opportunity to explain her version of events, including on all the points on which the appellant later led contradictory evidence. F.B. would not have changed her evidence if the appellant’s counsel had specifically put to her the appellant’s denial of the alleged confession and his version of events on the other related points. Nor would she have needed to amplify the already detailed evidence that she had given. There was no unfairness to F.B. or to the Crown, and the jury was not misled.
[12] There was, however, unfairness to the appellant because of the trial judge’s ruling and jury instruction. Given the difficulties with L.B.’s credibility and reliability as a witness, F.B.’s evidence, specifically her evidence about the appellant’s confession, was crucial to the Crown’s case. The jury instruction, including the trial judge’s correction of appellant counsel’s closing submissions, served to bring to the jury’s attention the supposed unfairness of the appellant’s counsel not crossexamining F.B. on the specific points and instructed the jury that they could use this to assess the appellant’s credibility. In the circumstances of this case, there was no need for a remedial jury instruction. It was prejudicial to the appellant. A new trial is required.
Disposition
[20] Accordingly, we allow the appeal, set aside the appellant’s conviction on count 2, and order a new trial on that count.
