The Defence Toolkit – September 14, 2024: “Measuring Force in Self-Defence”

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Opinion Evidence | Prosecution Closing | Self-Defence

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Posted On 14 September 2024

This week’s top three summaries: R v CD, 2024 NLCA 22: self #defence force, R v Jenkins, 2024 ONCA 533: police lay #opinion, and R v Borhot, 2024 ABKB 438: reverse #closing submissions.

R v CD, 2024 NLCA 22

[June 18, 2024] Self-Defence: Measuring Force to a Nicety Not Required [Reasons by F.J. Knickle J.A. with D.E Fry C.J.N.L. and D.M. Boone J.A. concurring]

AUTHOR’S NOTE: One of the key issues that led to a successful appeal in this case was the trial judge’s failure to apply established case law, which holds that a defendant responding in self-defence does not need to measure the exact degree of force used when faced with aggression. Specifically, the principle is that individuals acting in self-defence are not expected to weigh the amount of force used with precision, especially in the heat of the moment.

Factual Background:

The complainant had been aggressively attempting to enter a dormitory bedroom where the accused was hiding, driven by suspicion that the girl living there was seeing someone else.
Over the course of about an hour, the complainant forcefully tried to break into the room, even applying physical force to the girl in the main room of the dorm.
Ultimately, the complainant managed to force the door to the bedroom and lunged at the accused.
In response, the accused repeatedly stabbed the intruder.

Key Legal Issue: Reasonable Force in Self-Defence

Failure to Apply Self-Defence Law:
- The trial judge failed to accept that, according to established legal principles, a person defending themselves does not need to perfectly calibrate the level of force used. The law acknowledges that self-defence occurs in situations of heightened stress and fear, where the accused may not have the luxury of carefully assessing how much force is necessary.
Reasonableness of the Accused’s Response:
- In this case, the prolonged aggression and force displayed by the complainant, including forcibly entering the bedroom and lunging at the accused, justified a significant defensive response. The case law supports the notion that the accused’s repeated use of force, including the stabbing, could be considered a reasonable reaction given the circumstances.
Court of Appeal’s Position:
- The Court of Appeal found that the trial judge should have properly weighed the situation in light of self-defence principles. Specifically, the judge should have recognized that, given the intensity of the threat posed by the complainant, the accused’s actions could have been a lawful and proportionate response.
- The failure to instruct the jury on this key legal principle contributed to a miscarriage of justice.

Conclusion:

The appellate decision highlights that when faced with aggression, individuals are not required to “measure to a nicety” the amount of force they use to protect themselves. The accused, in this case, acted in response to prolonged and aggressive conduct, and the stabbing may well have been a reasonable defensive measure in the circumstances. The trial judge’s failure to properly apply this established legal principle justified the Court of Appeal’s decision to overturn the conviction and grant a new trial.

OVERVIEW

[1] This appeal addresses whether the trial judge erred in concluding that the appellant, CD, a young person, was guilty of aggravated assault and assault with a weapon against BH. The assault occurred at the dormitory room where BH’s girlfriend, HS, resided. At the time of the altercation, CD, who was not a student, was visiting with HS in her room. CD did not dispute that he stabbed BH after BH arrived at the dormitory, but maintained that he acted in self-defence.

Background circumstances

[3] On the morning of the assault, BH sent several text messages to HS requesting to come to her dormitory to retrieve some of his personal belongings. The communications were mostly from BH to HS. The frequency of his messages to her accelerated as hours passed and there was either no answer or unsatisfactory responses from HS.

[4] Despite the lack of communication from HS, BH went to the residence and, upon arrival, sent further texts asking to be allowed into the building. HS would not let him into the building or her room, but instead offered to bring BH’s items down to him. BH became upset and gained entry to the dormitory building by following behind another tenant who was entering the building. Once at the door to HS’s room,during the next 45 minutes, BH sent over 60 text messages to HS. He accused HS of cheating on him and hiding someone in the room and demanded to be let into the room. BH threatened to get HS in trouble with the residence assistant (RA) who monitored the residents in the dormitory. HS eventually opened the door and permitted BH to enter the main area of the room. After locating some items in one of two bedrooms, BH then made his way to the second bedroom. The door was closed and locked. CD was in this room. HS tried to prevent BH from entering this room.

[5] HS testified that she stood between BH and the bedroom door. She stated that BH screamed at her to move, grabbed her by the throat and hair and threw her across the room where she knocked over several bottles that had been saved for recycling. In contrast, BH testified that he only moved HS away from the door and did not grab her by her throat or pull her by her hair. Although he stated that after he moved HS he heard the sound of the bottles falling, he stated that he assumed this was because HS tripped and not because he threw her or assaulted her. CD stated that he could not see what happened outside the door, but stated that he heard HS say “Ow, you’re hurting me” or words to that effect. He also heard a thump against the door.

[6] BH located the key to unlock the bedroom door. Once BH unlocked the door, he could not open it as it was held shut by CD. BH pushed back against the door, forced it open, and went into the room.

[7] BH testified that when he entered the room, he saw CD coming towards him with his hands raised in what he believed was a threatening manner, so he went towards CD and pushed him back towards the bed that was in the room. BH stated that CD regained his balance and started to move towards him so BH pushed CD a second time. He testified that CD fell on the bed and then kicked him in the hip area. BH stated the kicking caused him to buckle and fall towards the bed and on CD. BH testified that he did not hit or choke CD but may have grazed CD’s neck area when he tried to extricate himself from the bed. BH testified he could feel CD punching at his arms. BH stated he did not realize he was stabbed until after he removed himself from the bed and noticed he was bleeding.

[8] CD testified that he went into the bedroom prior to BH entering the main area of the dormitory room. He testified that, at the time, he was in possession of two small pocket knives that had been gifted to him by his grandfather. One was in his pocket and the other, he had left on a table in the bedroom. However, when it became evident that BH was going to enter the bedroom by forcing the door, CD stated that he grabbed the second knife and placed it in his other pocket.

[9] CD stated that as soon as BH entered the room, BH lunged towards him, yelling at him and asking who he was. CD stated that BH began punching and hitting him and pushed him back on the bed. CD testified that BH was on top of him and was hitting him and choking him. CD testified he kicked at BH to try and get him to stop. CD stated that kicking did not stop BH, so he retrieved the two knives from his pockets (one in each hand) and repeatedly stabbed BH. CD testified that he aimed for BH’s arms and shoulder. CD testified that when BH got off him and up from the bed, he stopped trying to stab BH with the knives.

[10] Once off the bed, BH again asked CD who he was. The two spoke briefly and there was no further altercation. BH then realized he was stabbed. BH contacted paramedics who were on the scene within minutes. CD left the scene prior to the arrival of the police but was apprehended without incident.

[11] BH received seven stab wounds. One of the stab wounds was serious and punctured BH’s lung. BH required hospitalization for five days. The other wounds to his shoulder and arm area were less serious. One stab wound on his wrist was minor.

ANALYSIS

ISSUE 1 Did the trial judge fail to adequately explain in her reasons how she resolved the credibility of the witnesses and the conflicts between them in the evidence?

[19] The trial judge’s reasons were inadequate.

[20] While much of the evidence was not in dispute, the facts that were in dispute were critical to whether self-defence applied, in particular, whether the force used by CD was reasonable in the circumstances. The factual dispute needed to be resolved. The resolution of the factual dispute required the trial judge to explain how she assessed the credibility of the witnesses.

[21] The trial judge referred to the applicable principles in assessing credibility of witnesses (Transcript, Vol. 2, at pages 270-273), however, the only aspect of her decision that explains how those principles were applied was her conclusion that the photographs were more consistent with the evidence of BH than they were with the evidence of CD.

[22] In these circumstances, it was not enough to base the determination of credibility solely on a review of the photographs. The photographs were equivocal in terms of whose version of events they supported. There were other areas of the evidence that were relevant to the credibility of the witnesses that the trial judge did not address.

[24] A trial judge does not need to address every piece of evidence particularly where, as in these circumstances, many facts were not in dispute. Nor is a trial judge held to a standard of perfection. As stated by the Supreme Court of Canada, an appellate court will not intervene merely because “it thinks the trial court did a poor job of expressing itself” (R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 26). Nor will inadequate reasons constitute a ground of appeal standing alone.

[25] But where the deficiencies make it impossible for the parties to understand the result, particularly why the accused was convicted, and for an appellate court to meaningfully review the correctness of the decision, the inadequacy of the reasons may constitute legal error (Sheppard, at para. 40; See also R. v. J.L., 2024 ONCA 36, at para. 24).

[26] Further, while an appellate court will show deference to a trial court’s assessment of credibility, where the reasons do not disclose how or whether a judge addressed credibility, and the assessment cannot be discerned from the record, this deficiency may also constitute legal error (R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 23, referring to R. v. R.(D.), [1996] 2 S.C.R. 291 and R. v. Burke, [1996] 1 S.C.R. 474).

[27] When taken as a whole, the reasons must illustrate which facts the trial judge accepted (Sheppard, at para. 46; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 21). Unfortunately, in these circumstances, the trial judge’s failure to make findings of fact on critical aspects of the disputed evidence means that the foundation of the conclusion of guilt is unclear. This Court cannot meaningfully review the correctness of this conclusion.

The trial judge’s failure to address the text communications between BH and HS

[28] The text messages formed a central part of the examination of both HS and BH at trial. The text message communications between HS and BH were relevant to assessing BH’s credibility. They showed his state of mind throughout the day of the incident until he entered the dorm room, and contradicted his testimony on several points. The trial judge did not address to what extent, if any, they were considered in arriving at her conclusions.

[29] Firstly, the text messages were inconsistent with BH’s testimony as to his purpose for being at the residence. BH’s purpose in being present was relevant to the consideration of the whole of his conduct leading up to the incident and how BH’s conduct was perceived by CD.

[30]…. it was clear from the text messages that while BH initially communicated with HS for the purpose of retrieving items, his becoming upset as the day progressed was not about the items. BH explicitly accused HS of cheating on him and hiding someone in her room and demanded to be let in the room….

[31] Secondly, the text messages contradicted BH’s testimony that he asked HS in the texts to bring the items down to him. The text messages conveyed the opposite communication: that HS texted BH that she could bring the items downstairs to him, to which he refused and insisted on being allowed into the room. This further contradiction also undermined his testimony that the reason he was at the dorm was solely to retrieve his items.

[32] Thirdly, the text messages contradicted BH as to his real intentions in seeking the assistance of a RA. BH testified that the reason he went to look for a RA was because the RA would be able to let him into the room and he could then retrieve his items. However, the text messages to HS showed that BH threatened HS that he would go find a RA, not because he needed the items, but because he believed it would get her in trouble….

[35] The trial judge did not address these contradictions between BH’s testimony and the text messages in her reasons, except that the trial judge stated that it was unlikely that BH was at the dormitory room only to retrieve his items. The trial judge made no finding of fact one way or the other. The trial judge’s reference to BH’s purpose for being at the dorm to get his items as “unlikely,” also did not address the extent to which, if any, the messages supported that BH attempted in his testimony to minimize his reason for being there and his level of upset. This was relevant to his overall credibility as to the sequence of events.

[37] The above inconsistencies, especially when taken cumulatively (R. v. Kennedy, 2015 NLCA 14, leave to appeal to SCC refused, 36457 (24 September 2015)), may have been significant, yet none were addressed. Without addressing the inconsistencies, the trial judge’s reasons do not adequately explain how she assessed the credibility of BH’s evidence (See J.L., at paras. 32-33). We do not know what she made of BH’s evidence and whether she accepted all, none, or some of what he said, except as discussed in relation to the photographs of the injuries. But, as will be seen, the reliance on these photographs was based on a misapprehension of the evidence.

The trial judge failed to address the evidence of HS

[42] Because the trial judge did not refer to HS’s evidence at any point in her analysis, except to note that HS testified, there is no way to know how this testimony was considered….

The trial judge’s erroneous use of the photographs

[45] The trial judge’s reliance on the photographs as supporting BH’s version of events more than CD’s version, because of the location of the wounds on BH’s chest area, was a misapprehension of the evidence. The trial judge inferred from the photographs that BH could not have been positioned on top of CD (as CD described) because CD would not have been able to stab BH in the chest. There is no basis in the evidence for this inference.

[52] I would allow this ground of appeal.

ISSUE 2 Did the trial judge err in her application of the principles governing self defence?

The principles governing self-defence

[53] Self-defence is governed by section 34 of the Criminal Code. There are three prongs to the defence. Firstly, the accused must reasonably believe that force is being used either against him or someone else (section 34(1)(a)). Secondly, the accused’s application of force must be for the purpose of defending himself from that threat or use of force (section 34(1)(b)) and, thirdly, taking into account all the circumstances, including the factors under section 34(2), the force used by the accused in response must be reasonable in all of the circumstances (section 34 (1)(c)).

[55] The first two prongs of the defence consider what was reasonable from the view point of the accused. The third prong, whether the force used was reasonable, is an objective assessment: what the reasonable person in the circumstances would view as the reasonable response.

[56] Further, an accused is not required to prove that he acted in self-defence. He need only raise a reasonable doubt. The Crown must prove beyond a reasonable doubt that an accused did not act in self-defence. If the Crown establishes beyond a reasonable doubt that any one of the three prongs are not made out, the defence will fail.

[57] Although the trial judge properly referred to the principles in her decision and considered certain of the listed factors, her reasons show that the principles were misapplied in these circumstances. Part of the problem was the trial judge’s failure to make findings of fact that were relevant to the proper assessment of the factors under section 34(2). For example, it was not enough for the trial judge to state that CD reasonably believed force was being used against him (Transcript, Vol. 2, at page 282). It was critical that the trial judge determine the extent to which BH applied or threatened force in order to determine from what CD was trying to defend himself. The trial judge also failed to consider the totality of the circumstances as it related to CD’s role in the altercation as compared to BH. Further, apart from counting the number of strikes, the trial judge did not assess other circumstances relevant to the reasonableness of the force used by CD.

The trial judge failed to ascertain the nature of the force or threat faced by CD

[58] In order to determine whether CD’s use of force in response to BH was reasonable, it was critical that the trial judge determine, with precision, the nature of the threat to which CD responded when he applied force by stabbing BH, as required by section 34(2)(a). As stated in R. v. Khill, 2021 SCC 37, at paragraph 61:

… At same time great care is need to properly articulate the threat or use of force that existed at a particular point in time so that the assessment of the accused’s action can be properly aligned to their stated purpose…

The trial judge’s focus of the evidence was narrow

[61] Secondly, the trial judge’s assessment of self-defence was based on a narrow focus of the evidence, being solely the events that occurred in the bedroom. The trial judge reviewed the circumstances leading up to BH’s entry into the bedroom, in part, but concentrated on the events after BH entered the room….

[63] This narrow focus may explain why the trial judge did not refer to the evidence of HS or the text messages, but this narrow focus also ignored BH’s persistent use of force prior to getting into the bedroom….

[64] Here, as explained in Khill, in considering the actions of an accused, it is important to consider the totality of the circumstances, including the role played by the accused. BH was solely responsible for creating the altercation and his level of aggression over the entire course of the incident between CD and him was a relevant consideration. CD was clearly an innocent bystander while BH and HS argued. This was not considered by the trial judge except to say that she accepted that BH initiated the use of force. But BH’s level of aggression and what he actually did, was relevant to CD’s role, the perception of the kind of force he faced, and why he resorted to use of the two small pocket knives.

The trial judge erred by requiring CD to weigh the nicety of the forced used

[65] Thirdly, the trial judge properly recognized that in assessing the force used by CD, CD was not expected to weigh with “nicety” the amount of force (Transcript, Vol. 2, at page 280) (R. v. Levy, 2016 NSCA 45, at para. 112). Put another way, CD was not expected to measure with precision how much force he used. However, the trial judge’s conclusion that the force used was unreasonable because of the number of strikes seemed to require of CD exactly that nicety of weighing the force used…. ….While seven strikes with two small pocket knives was a substantial use of force, this did not necessarily mean that that force used was unreasonable. [Emphasis by PJM]

[66] In so concluding, the trial judge made no reference to evidence that supported that CD was trying to use only as much force as was necessary. As discussed earlier, CD did not use the knives until the lesser force, kicking, BH did not stop him from choking CD. CD estimated the choking continued for approximately 20-40 seconds. CD also aimed for BH’s arms and shoulders (supported by the testimony of BH and the photographs), and CD stopped as soon as BH extricated himself from the bed. This evidence of CD’s conduct was undisputed and, if accepted, could have supported that, in using the knives, CD was trying to measure his response to the extent he could. However, the trial judge’s reasons take no account of this evidence.

[67] This evidence was relevant to whether the force used by CD was reasonable when he stabbed BH. There was a substantial difference between the threat being that BH fell on top of CD or that, after an hour of trying to enter the dorm and then the bedroom, BH lunged at CD, knocked him down, yelling and then choked and punched CD and did not stop until CD started stabbing him. When coupled with how CD actually responded by only resorting to the knives when he could not stop the choking, by aiming for BH’s arms and shoulders, and by stopping as soon as BH stopped, the totality of the evidence may have supported the conclusion that, in fact, the force applied was reasonable. However, the trial judge’s reasons do not show that this other evidence was considered. [Emphasis by PJM]

[70] I would allow this ground of appeal, and order a new trial.

ISSUE 3 Did the trial judge fail to properly apply the principle of reasonable doubt?

[72] The trial judge properly referred to the burden of proof, the presumption of innocence and reasonable doubt. It is also clear from the guilty verdict that the trial judge was satisfied beyond a reasonable doubt. Unfortunately, the deficiencies in the reasons regarding the credibility of the witnesses, the conflicts in the evidence and the failure to make critical findings of facts relevant to self-defence, make it difficult to meaningfully review why the trial judge was satisfied that the Crown had proven beyond a reasonable doubt that CD did not act in self-defence. As stated in R.E.M., at paragraph 17:

… What is required is a logical connection between the “what” — the verdict — and the “why” — the basis for the verdict. The foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.

[73] I would also allow this ground of appeal.

CONCLUSION

[74] I am satisfied that the trial judge erred in her conclusion that CD was guilty of assault and that self-defence was not available. In these circumstances, it was critical for the trial judge to decide what evidence she accepted and why before she could address whether self-defence was available, and whether she was left with a reasonable doubt. This she did not do. The trial judge did not adequately explain her reasoning as to how she resolved the conflicts in key parts of the evidence or explain what evidence she accepted. Where the trial judge explained why she was satisfied that self-defence did not apply, by relying on the photographs of the injuries, the trial judge misapprehended the evidence.

[76] I would allow the appeal, set aside the verdict of guilty on both counts and remit the matter to the youth court for a new trial.

R v Jenkins, 2024 ONCA 533

[July 5, 2024] Lay Opinion Evidence: Activity Consistent with Drug Trafficking [Reasons by J. Copeland J.A. with B.W. Miller and L. Favreau JJ.A. concurring]

AUTHOR’S NOTE: Opinion evidence is generally inadmissible in court, as it is presumed that only the facts, not opinions, should guide the decision-making process. There are, however, established exceptions, such as admissible expert evidence and a set of recognized lay opinions that have been deemed acceptable through case law, such as opinions on identity or other straightforward matters.

However, in cases involving alleged drug trafficking, police officers who are not qualified as experts cannot offer opinions that the behavior they observed during surveillance was “consistent with” drug trafficking. As explained by the Court of Appeal in this case, such “consistency” is not a matter that non-experts require assistance with. This kind of interpretation merely places the weight of a police officer’s public office behind the Crown’s theory in a case.

The reasoning is twofold:

Consistency with Drug Trafficking does not Require Expert Knowledge: Whether or not a particular interaction is consistent or in-consistent with drug trafficking does not require specialized knowledge in itself. It is only some of the factors leading to an opinion that a substance was held “for the purpose of trafficking” that requires such knowledge. The recognized examples are: the significance of the weight or quantity of the drug, typical personal use patterns, the significance of the packaging and other materials present with the drugs (eg. scales). These types of issues require specialized knowledge, but the opinion that a short meeting between two people was consistent with a transfer of illicit substances is not one of those things.
Expert testimony renders lay opinions unnecessary: When a properly qualified expert is available to testify on drug trafficking behaviors, any lay opinion by a non-expert officer becomes redundant. In legal terms, it fails to meet the criterion of “necessity,” meaning the lay opinion is unnecessary for the court to understand the facts of the case if expert evidence is already available.

In essence, the Court of Appeal reinforced that police lay opinions on consistency with drug trafficking have no place in criminal trials.

Copeland J.A.:

[1] The appellant was convicted in a jury trial of three counts of trafficking (cocaine, heroin, and fentanyl) and three counts of possession for the purpose of trafficking (also of cocaine, heroin, and fentanyl).

[2] The appellant raises one ground of appeal – that the trial judge erred in law by permitting the Crown to tender the lay opinions of five police officers that the appellant’s conduct observed during surveillance was, or was consistent with, drug trafficking.

[3] I would allow the appeal and order a new trial. The trial judge erred in allowing the five surveillance officers to give the impugned opinion evidence. The Crown did not seek to qualify the five officers as experts. Thus, they could not give expert opinion evidence. In any event, the form of the evidence was impermissible even had they been qualified as experts. Nor was the opinion evidence of the five officers within the scope of lay opinion evidence permitted under the principles enunciated in Graat v. The Queen, [1982] 2 S.C.R. 819. Given the prominence of the opinion evidence in the trial and the risk of misuse of improperly tendered opinion evidence in a jury trial, I would not apply the curative proviso.

Factual background

[6] In general terms, the surveillance officers described seeing the appellant drive to various locations in Barrie, including people’s homes, gas stations, parking lots, and a Tim Hortons. When the appellant arrived at a location, on some occasions an individual would enter his car and leave within a matter of minutes. On other occasions, the appellant would stop near another vehicle. At no time did any of the surveillance officers observe money, drugs, or anything else change hands.

[7] The appellant was arrested on January 20, 2017. Officers had been conducting surveillance that day. In the afternoon, the appellant arrived at an address and parked his car. He got out and entered the back seat of a black Jeep which the officers had observed several days earlier. The police followed the Jeep to another address. When the Jeep arrived at the second address, a male came out of the house and entered the back seat of the Jeep.

[8] The police then called a takedown, shortly before 5 p.m., and arrested all the occupants of the Jeep. The appellant was seated in the back seat. A woman named Yolanda Robbins was in the driver’s seat. Her boyfriend, Greg Schell, was in the front passenger seat. Ben Armstrong, the male who entered the Jeep at the second address, was also in the back seat.

[9] At the time of the appellant’s arrest, no drugs were found on his person; however, two cell phones and approximately $1,300 bundled with a rubber band were seized from him. On Mr. Schell’s person were found .29 grams of heroin/fentanyl and .48 grams of heroin/fentanyl, packaged in separate pieces of torn grocery bag.

[10] Police obtained search warrants for the appellant’s residence and his car later on January 20, 2017. While they waited for the search warrants to be issued, they conducted surveillance on the appellant’s residence….

[11] At 6:35 p.m. on January 20, the police observed the appellant’s father, Barry Jenkins, leave the residence and get into his car. Police alerted two uniformed officers to follow the car and arrest Barry. Four minutes later, the police stopped and arrested Barry. The police searched Barry’s car. In the car, on the floor below the driver’s seat, they found a large black cannister. On later analysis, the contents of the cannister were three baggies of cocaine weighing a total of 20.5 grams and three baggies of a mixture of heroin/fentanyl/caffeine weighing a total of 22.7 grams. The cannister was not tested for fingerprints.

[12] Barry was called as a witness at trial. He testified that he found the cannister on the stairs to the basement and that he had never seen it before. He said that after hearing about the appellant’s arrest, he was on his way to the police station to surrender the cannister. However, he did not provide the officers with the cannister as soon as he was pulled over. Rather, the officers found it when they searched the car.

[16] The appellant testified. He denied any knowledge of the cannister. He said it was not his and the drugs in it were not his. He denied he was involved in trafficking drugs. He testified that the mask, respirator, and cash were related to his freelance autobody repair work. He denied knowledge of the scale.

The trial judge erred in law by admitting the impugned opinion evidence of the five surveillance officers

[17] The trial judge erred in allowing the Crown to lead opinion evidence from five surveillance officers that the appellant’s conduct they observed during surveillance was, or was consistent with, drug trafficking. In particular, he erred in finding that it was admissible as lay opinion evidence.

[18] I reach this conclusion for the same reasons as in this court’s recent decision in R. v. Nguyen, 2023 ONCA 531, 429 C.C.C. (3d) 192, at paras. 48-54. The surveillance officers’ evidence should have been limited to their factual observations during the surveillance.

(i) The impugned opinion evidence

[19] I will not summarize the opinion evidence of all of the five surveillance officers. The substance was the same for all five. Repeatedly, during the course of examinations-in-chief, after each officer explained a particular factual observation of the appellant during surveillance, Crown counsel then asked a question to the effect of: What did you make of this observation, in your experience? I extract excerpts from the evidence of three surveillance officers to provide the flavour of the impugned opinion evidence.

Examination-in-chief of DC Anthony Forrest

Q. Okay. So let me ask you about that first observation you made; the individual coming out of the home, getting into the vehicle, and getting out. You – you said you’ve been a member of the police – Barrie Police since 2008?

A. That’s correct.

Q. Have you had experience with surveilling individuals?

A. Yes.

Q. Okay. What – what do you make of this in your experience?

A. This sort of short trip like, the person’s inside for three minutes. This sort of short meet is very consistent with a drug transaction. It’s also very consistent for drug dealers and buyers to conduct their business in vehicles where they’re afforded some concealment. It’s very common.

(ii) This court’s decision in Nguyen

[20] In Nguyen, this court considered the same type of evidence from an officer who was not qualified as an expert to give opinion evidence. After giving evidence about surveillance observations of Mr. Nguyen, the officer testified that in his opinion what he had observed – one male picking up or dropping property off to another male – was “consistent with drug-related activity.”

[21] This court held that the trial judge in Nguyen erred in admitting the officer’s opinion evidence. The Court started with the well-established proposition that opinion evidence is presumptively inadmissible: Nguyen at para. 48, citing R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 49. The opinion evidence was improperly admitted in Nguyen because it did not satisfy the admissibility requirements for either expert opinion evidence or lay opinion evidence.

[22] In relation to expert opinion evidence, there were two problems in Nguyen. First, the Crown had not established the officer’s expertise to offer the opinion he provided. Second, the opinion provided by the officer did not meet the necessity requirement for admissibility of expert evidence. The opinion that the conduct of picking up or dropping off property between two people “was consistent with drugrelated activity” was not a matter that non-experts – a trier of fact – are unlikely to form a correct judgment about: see also R. v. Gill, 2017 ONSC 3558, at paras. 41- 44, per Fairburn J., as she then was.

23] This court further held that the officer’s opinion evidence – that the conduct observed was consistent with drug trafficking – did not fall within the scope of lay opinion evidence: Nguyen, at para. 53. Lay opinion evidence is admissible where a witness is “merely giving a compendious statement of facts that are too subtle or complicated to narrate separately and distinctly”: Graat, at p. 841. Where a surveillance officer gives evidence about their observations of a suspect (properly admissible), they can relate the evidence of the factual observations they made without providing the further opinion evidence that the conduct observed is consistent with drug trafficking: see also Gill, at paras 43-44.

(iii) Application to this appeal

[24] In this case, on a voir dire that occurred after the officers testified, the trial judge held that the opinion evidence of the five surveillance officers that what they observed the appellant do during the surveillance was, or was consistent with, drug trafficking was admissible as lay opinion evidence.

[25] This was an error. The evidence of the five surveillance officers should have been limited to their observations of the appellant during the surveillance (and of the people he was with, to the extent it was relevant).

[27] First, the Crown did not seek to qualify the five surveillance officers as experts on the indicia of drug trafficking.

[28] Second, the conclusory opinion evidence given by each of the five officers was not necessary for the jury to form a correct judgment about the evidence. The jury was capable of assessing the factual observations described by the officers. In particular, the jury was capable of weighing the shortness of the appellant’s interactions with third parties as a factor that may, in the context of the evidence as a whole, be probative of drug trafficking transactions.

[29] Third, the conclusory opinion that the conduct observed was, or was consistent with, drug trafficking was not within the scope of lay opinion evidence. The jury could understand, and the officers could convey, the factual observations of the appellant’s conduct during the surveillance without the further opinion that the officers believed that the conduct was, or was consistent with, drug trafficking.

[30] To be clear, I am not suggesting that expert opinion evidence could not be led on the issue of indicia of trafficking if a trial judge was satisfied that it met the White Burgess admissibility criteria: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. This court and the Supreme Court have recognized that expert opinion evidence may be tendered on issues related to drug trafficking, such as “chains of distribution, distribution routes, means of transportation, methods of concealment, packaging, value, cost and profit margins”, where the evidence is based on specialized knowledge outside the knowledge of a lay trier of fact: R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 18; Nguyen, at para. 52.

[31] I would also emphasize that where opinion evidence is tendered on issues related to drug trafficking, it must be limited to providing the jury with evidence in general terms about the area of expertise (for example, drug pricing; trafficking quantities; methods of drug trafficking), which they may consider and, if they accept it, apply as part of their fact finding to decide what inferences or conclusions to draw from other evidence (for example, surveillance evidence). Expert opinion may not extend to conclusions or inferences to be drawn about the accused’s conduct….

[32] Indeed, in this trial the Crown did lead expert opinion evidence about indicia of drug trafficking. As noted above, the trial judge qualified DC Ford as an expert on this issue. The appellant does not challenge that ruling or the scope of DC Ford’s evidence. However, DC Ford’s opinion evidence about indicia of drug trafficking was properly limited to providing a list of indicia of drug trafficking, rather than a conclusory opinion that the appellant’s conduct as observed during the surveillance was, or was consistent with, drug trafficking.

[34] The defence raised objection to the admissibility of the opinion evidence of the surveillance officers in an application brought after the completion of the evidence and prior to the closing addresses. The defence argued that the impugned evidence from the five officers was opinion evidence and was inadmissible. Defence counsel at trial acknowledged that he should have objected to the opinion evidence from the five surveillance officers at the time it was tendered.

[35] I am not persuaded that this is a case where the late objection by the defence should lead the court to conclude either that there was no prejudice from the impugned evidence or that the defence made a tactical decision not to object earlier.

[37] I acknowledge that the trial judge was placed in a difficult position by the late objection by the defence. But that did not relieve him of his gatekeeping responsibility to ensure that opinion evidence only be admitted if it fell within a proper exception for either expert or lay opinion: Nguyen, at para. 54. The trial judge failed to exercise his gatekeeping function at the time the opinion evidence was tendered.

[38] It may be that had the trial judge given the jury a clear, sharp instruction to disregard the impugned opinion evidence of the five surveillance officers and to only consider the factual evidence of their observations, this could have addressed the prejudice: Sekhon, at para. 48. Unfortunately, the trial judge did not take that route. Rather, he held that the opinion evidence from the surveillance officers was admissible as lay opinion evidence. This was an error.

[39] For these reasons, I conclude that the trial judge erred in admitting the opinion evidence of the five surveillance officers that their observations of the appellant during surveillance were, or were consistent with, drug trafficking. Their evidence should have been limited to their factual observations during surveillance.

The Crown has not met its burden for the curative proviso to be applied

[45] First, unlike Sekhon and Nguyen this appeal is from a jury trial. The risk of misuse of improperly admitted evidence is greater in a jury trial because jurors are not legally trained: Sekhon, at para. 46; R. v. Lewis, 2012 ONCA 388, 284 C.C.C. (3d) 423, at paras. 22, 28.

[46] Thus, for the purpose of considering the application of the curative proviso, this case is more like Lewis, which was a jury trial, than Sekhon and Nguyen. In Lewis, this court emphasized, at paras. 22 and 28, the risk in a jury trial that a jury will give undue weight to improperly admitted opinion evidence. In this case, as in Lewis, the Crown phrased its questions in eliciting the impugned evidence in a manner that also elicited the experience of the officers in drug investigation surveillance. This had the effect of emphasizing the purported expertise of the officers without actually having them qualified as experts.

[48] Further, the improperly admitted opinion evidence was given prominence in the Crown’s address to the jury. Repeatedly in her closing address, when Crown counsel (not Ms. Carley) described the various surveillance observations of the officers, she concluded the description with: “Police believe this to be a drug transaction.”

[50] These factors distinguish this appeal from Sekhon and Nguyen. In both of those appeals, the appellate court found the improperly admitted evidence was a small part of the trial. I do not reach the same conclusion in this appeal.

Disposition

[60] I would allow the appeal, set aside the convictions, and order a new trial.

R v Borhot, 2024 ABKB 438

[July 18, 2024] Reversing the Order of Final Submissions [C. Dario J.]

AUTHOR’S NOTE: Under s. 651 of the Criminal Code, when the defence calls evidence, it is generally required to make its closing argument first before the Crown addresses the trier of fact. However, there are exceptional situations where this order can cause unfairness, and the court has the discretion to require the Crown to proceed first, even if the defence has called evidence.

In this particular case, the prosecution presented a broad array of evidence related to very general offences that were never clearly particularized, leaving uncertainty about the specific conduct for which the Crown was seeking conviction. This lack of clarity created a significant disadvantage for the defence, as it would have been difficult to respond effectively in summation without first hearing the Crown’s position. Recognizing this unfairness, the Court ordered that the Crown should make its final submissions first, reversing the usual procedural order.

The court’s decision was grounded in a review of case law that supports the principle of fairness in criminal trials. The decision highlights that, while s. 651 sets out a default rule, courts retain the flexibility to modify the order of closing arguments to ensure that a trial is conducted fairly. This ruling provides a valuable precedent for defence counsel to rely on when arguing for a reversal of the usual summation order in cases where the prosecution’s evidence is broad, vague, or creates a risk of prejudice.

Defence counsel can now use this decision as a springboard to request similar remedies in the future, particularly in cases where the prosecution’s presentation of evidence or strategy creates a risk of unfairness to the accused.

[1] The Accused applies to make his closing arguments after the Crown. The Defence argues that the Crown should make their closing submissions first even though the Accused called evidence. The Defence submits that he cannot effectively respond to the Crown’s theory given the volume of evidence before the Court and the uncertainty as to the relevance of each piece of evidence. The Crown does not consent to arguing first, and submits that if it must argue first, it should have a right to reply.

[2] I will allow the Accused’s application. The Crown will argue first and have an opportunity to reply to the Defence’s arguments should it wish to do so. Specifically, the Crown will provide its written submissions first, followed by the Defence, then the Crown will be permitted to make a reply in writing. I will allow both parties a full and fair opportunity to argue their cases orally before me so that all points that they wish to make can be made. It will benefit the Court to have full argument on all points that need to be addressed.

II. THE LAW

[3] Criminal Code s 651(3) specifies that in a jury trial, if no witnesses are examined for an accused, his counsel is entitled to address the jury last. If the accused does examine witnesses, the prosecution is entitled to address the jury last. Jury trial procedures are imported to judgealone trials by way of Criminal Code s 572.

[4] In R v Rose, 1998 CanLII 768 (SCC), the constitutionality of Criminal Code s 651 was upheld. The Court found that closing arguments are the accused’s opportunity to answer the Crown’s evidence and theory of the case with argument and persuasion, not an opportunity to answer the Crown’s closing arguments to the jury. The Court noted that there are remedies available to address any unfairness resulting from an improper closing address. The first and likely most sufficient is a curative instruction to the jury. However, if a curative instruction will not suffice to remedy the damage, in rare cases the prejudiced party may be granted a limited opportunity to reply.

[6] In cases where the trial is heard by a judge and a jury, the Court is bound by the majority decision in Rose. In a judge-alone trial there may be limited situations where the circumstances dictate that the order of closing arguments could appropriately be altered. Those situations would be limited.

[7] The Nunavut Court of Appeal directly addressed the issue of closing arguments in a judge-alone trial in R v Akpalialuk, 2021 NUCA 2. The panel consisted of Khullar J (as she then was), Wakeling J and Hughes J. In that case, the Crown was given a right of reply without having made a specific request for one. The Court found the following with respect to the order of closing arguments in a judge alone trial:

 A trial judge sitting alone is less influenced by who spoke last than by the substance of what each party said: para 31;

 It is for the trial judge to determine what modifications may be required to the order of final submissions in a judge alone trial to ensure trial fairness: para 32;

 Neither party in a criminal trial has the right of reply, but each can request such a reply. It will be up to the trial judge to determine whether that opportunity will be given: para 33. However, trial judges want to ensure that they have full argument and that all points that need to be addressed are addressed. If this requires permitting either Crown or Defence a reply, or even a sur-reply, there is nothing prima facie unfair about this process in a judge-alone trial: para 32;

 Trial fairness is always a prime consideration. Having granted a party the opportunity to reply, to the extent that it is not helpful or goes to far, the trial judge can address that situation: para 34.

[8] In concurring reasons, Wakeling J and Hughes J made the following observations:

A protocol that promotes a full exchange of helpful arguments should be adopted in judge-alone trials.

 In jury trials, the focus of closing arguments is on the facts and the emotional aspects of the case, and not the law. In judge-alone trials, counsel’s final arguments must discuss both the facts and the law: para 83. Judges sitting alone also frequently question counsel, which also distinguishes them from jury trials: para 84. The trial judge derives full benefit from the different perspectives the Crown and Defence counsel offer: para 83;

 There is no tactical advantage to arguing last in a judge-alone trial. When an argument is made is an irrelevant factor. A good argument is well-received by judges whether it is made by counsel who speaks first, second, or third: para 86.

 The trial judge sitting alone must provide reasons for her decision. She will want to have as much assistance from counsel as she believes is necessary. It makes no sense to fetter the hearing process with rules that may frustrate the judge’s desire to hear additional argument from counsel if they wish to say more: para 85;

 A trial judge sitting alone has the discretion to call upon counsel either for the defence or for the prosecution to address her in whatever order the judge considers proper and necessary. That judge also has the discretion to permit counsel to address the Court by way of reply. Reply is only available to respond to any significant new point raised in the opposing counsel’s presentation: para 89, quoting R Salhany, Criminal Trial Handbook 12.8 (loose-leaf ed 2020-release 3;

[9] Wakeling J and Hughes J were in favor of greater rights of reply than advocated by Khullar J. In obiter, they noted favorably the “three speech” model adopted in other common law jurisdictions. For example, in the US Federal system, the prosecution opens the argument, the defendant is permitted to reply, and the prosecution is then allowed to reply in rebuttal. This structure is grounded on the notion that the fair administration of justice is best served if the Accused knows the arguments for conviction actually made by the prosecution before being faced with the decision whether to reply and what to reply: para 92. While not the process adopted in Canadian courts, there may be some limited circumstances in which applying this model in a judge alone trial is appropriate.

III. ANALYSIS

[11] In this case, the Accused did examine two witnesses:

a) Amarnath Amarasingam, whose scope of expertise includes Canadian foreign fighters in Syria during the Syrian civil war and the history of the Syrian civil war. He spoke to the experiences of some of the Canadian foreign fighters in Syria and some generalizations gleaned from those experiences. These generalizations include travel patterns and plans, the groups joined, ideological interests, and other factors influencing their decision to participate in the Syrian civil war. He also spoke to the specific groups the majority of foreign fighters joined; and

b) Roula Salam, an expert in translation from Arabic to English, who spoke to the accuracy in translations from the Crown witnesses.

[12] The Accused did not call any evidence of a specific defence or to specifically challenge any of the Crown’s evidence.

[13] In this case, given the nature of the charges, the lack of particulars, and the volume of the evidence, trial fairness dictates that the Crown should argue first. This will allow the Defence to properly respond to the Crown’s theory and address each piece of evidence in context.

[14] The charges against the Accused relate to terrorism offences pursuant Criminal Code s. 83.18. The charges themselves are very broad and the Crown was not required to provide particulars. The Crown has made no opening statement in the trial. The amount of evidence called by the Crown was voluminous. There is some lack of clarity as to which aspect of the evidence will be focused on or relied upon to establish the elements of the offences. This leaves Defence counsel with a significant amount of evidence to address to cover every possible argument the Crown might make.

[15]….While the translations in Exhibit F are only a portion of the entries in Exhibit D, there are still several hundred. It would be a significant benefit to both the Court and the Defence to know which of the posts from Exhibit D the Crown will primarily rely on and for what purpose. That way an efficient comparison of those posts against Exhibit F can be conducted before the Defence makes his closing submissions.

[16]….While there is enough evidence for the Defence to know what the arguments could be, he might not anticipate all the Crown’s arguments, or every possible variation of how the elements of the offences could be established with the evidence.

[17] It is the Crown that has the burden of proving the offences beyond a reasonable doubt. The Crown must therefore demonstrate how the evidence in this case proves the offences charged. The Crown must do so in their closing submissions before the Defence elects whether to makes closing submissions and to what they will be required to reply. Had Defence counsel called evidence of an affirmative defence or in direct contradiction to the Crown’s evidence, or had some of the other unique factors of this case not been present, trial fairness might not have required the Crown to argue first. That is not the situation before me.

IV. CONCLUSION

[18] The specific circumstances of this case are exceptionally unique and merit a reconsideration of the standard order of presenting closing submissions. The Crown will submit its closing arguments first by way of written submissions. The Defence will then submit his closing arguments by way of written submissions. The Crown will be permitted a written reply to Defence counsel’s written submissions to respond to any new points raised by Defence counsel. The timing of each submission will be addressed in court.

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