R. v. Darnley, 2020 ONCA 179

REASONABLE DOUBT - BREACH OF TRUST - ENTRAPMENT DEFENCE

Listen to an audio recording of the summary here: https://www.legallistening.com/little-legal-summaries-llscollab/january-2021-recap

Factual Background 

The accused, Constable Darnley, is an OPP officer. Her superiors suspected that she was abusing her role as a peace officer out of loyalty to her fiancé and his friends who are suspected of being involved with drug use. An officer, Constable Fischer, was partnered with Darnley to investigate her in an undercover capacity. 

The “Witness Record” Incident

One of these friends was charged with possession. The eve of his trial, Darnley accessed electronic police records and printed  witness statements the police collected during its investigation. Darnley was charged with (1) breach of trust for releasing confidential police information, and (2) obstruction of justice by printing and disclosing witness statements. The central issue at trial was whether Darnley actually released or disclosed any of the statements to any of the witnesses. At trial, the accused was convicted of breach of trust, but acquitted of obstruction of justice in relation to this incident. She raised an entrapment defence which was rejected by the TJ.

The “Drug Use Investigation File” Incidents

The OPP created a fake investigation file into drug targets in Wasaga beach to “test” Constable Darnley’s integrity. The file suggested that her fiancé’s friends were being investigated for drug offences. Constable Fischer (the undercover partner) set up the file so Darnley would stumble across it. Darnley went to Fischer asking whether she should tell her fiancé. Fischer offered to go with her and to be her lookout; Fischer assured her it was not planted intentionally. Cst Darnley has admitted that she called her fiancé to warn him to not see his friends anymore and had shown him the photographs in the file. 

The police launched a second “integrity play” which prompted Darnley to search her Sergeant’s desk. Cst Darnley was recorded asking her fiancé if she wanted to see the drug files on his friends. She was then arrested. The central issue was why Constable Darnley accessed and photographed the files and shared them with her fiancé. At trial, the accused was convicted of breach of trust.

A. Clarifying “Reasonable Doubt”

  1. A reasonable doubt does not need to arise from the evidence; it can arise from the absence of the evidence;

  2. An inference does not need to arise from proven facts;

  3. An acquittal can rest on an inability to conclude guilt, it does not require a conclusion about innocence; and

  4. An exculpatory inference does not need to be a “much stronger conclusion” than a speculation or guess. Under Villaroman, an exculpatory inference only needs to raise a reasonable doubt.

B. Breach of Trust - s. 122 of CC

R v Boulanger, 2006 SCC 32 sets out the essential elements of this offence:

  1. The accused is an official;

  2. The accused was acting in connection with the duties of their office;

  3. The accused breached the standard of responsibility and conduct demanded by the nature of their office;

  4. The conduct of the accused represented a serious and marked departure of the standards expected of an individual in the accused’s position of public trust; and

  5. The accused acted with the intention to use his or her public office for a purpose other than the public good.

Motive versus “Public Good Purpose”

Generally, motive is not an essential element of a criminal offence. For a breach of trust charge, however, the 5th element requires an inquiry into the “purpose” of the accused’s conduct (and that purpose must be other than the public good). While motive has historically been used to describe this fifth element, motive is not necessarily the same as purpose. Motive concerns what induces the accused to engage in the prohibited conduct, whereas purpose is the objective to be attained.

In this case, however, Cst. Darnley’s motive and purpose are not easily separated. While the trial judge’s use of “motive” in instructing the jury should have clarified the distinction between purpose and motive, there was no real risk that the jury did not understand that the issue they were tasked with was “why” Darnley engaged in this conduct.

Breach of “Trust”

Proof of actual trust of the accused is not an element of the offence of breach of trust. The trust that is breached arises from the nature of the office held, and the responsibilities entrusted to the accused as a result of that office. 

C. Entrapment Defence

Entrapment can occur in two ways: 

  1. Authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides; or

  2. Having a reasonable suspicion or acting in the court of a bona fide inquiry they go beyond providing an opportunity and induce the commission of an offence (R v Mack, [1988] 2 SCR 903).

In assessing whether police simply provided an opportunity to commit an offence, or whether they induced the commission of an offence, a trial judge engages an “average person inquiry.

This requires asking “whether an average person, with both strengths and weaknesses, in the position of the accused might have also committed the offence.” It was an error of law for the TJ to inquire whether another OPP officer faced with these “integrity plays” would inevitably have been induced to commit the offence. The law of entrapment in Canada does NOT require “inevitability”.

It was also improper for the judge to reason that where peace officers are charged they must be held to higher standards of morality. A peace officer, by virtue of their job, is not any less susceptible to compassion, or sympathy; more resistant to temptation; or, more immune from mental illness. 

ONCA makes clear that the only remedy available following a successful entrapment defence is a stay of proceedings.

Paciocco JA, writing for the court, quashes the breach of trust conviction (“witness record” incident) due to the reasonable doubt error and the inconsistent verdict error. Given the acquittal on the obstruction of justice charge in relation to the same incident, a re-trial would invite a jury to return another inconsistent verdict. A substituted verdict of acquittal is entered for count 1. A new trial is ordered on count 2 (“drug investigation file” incidents).

Note: the accused also raised an issue on appeal regarding inconsistent verdicts, it has not been summarized above.

Sara Little