R. v. S.H., 2019 ONCA 669

BEST EVIDENCE RULE - CANADA EVIDENCE ACT - CURATIVE PROVISO

Facts

Police executed a search warrant at the Appellant’s home. Appellant answered the door; he acknowledged he had oxycodone pills and marijuana. Appellant was charged and convicted of possession of cocaine for purpose of trafficking, possession of oxycodone, production of marijuana and possession of marijuana for the purpose of trafficking.

CH, the Appellant’s son, was present when search warrant was executed. CH was charged with various drug offences.

At trial, Crown relied on evidence of data extracted from a cell phone seized during the search. Evidence was used to support the inference that the phone belonged to CH, CH was the Appellant’s son and that CH lived in the household with the Appellant.

Majority - Simmons JA

Admissibility of Cell Phone Evidence - Canada Evidence Act

Section 31.2 of CEA governs how the best evidence rule can be met: (a) “on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stores”, or (b) “if an evidentiary presumption under s. 31.4 applies.”

Section 31.3 describes the three methods by which the integrity of an electronic documents may be proven. In brief, those methods are:

  1. presumption of integrity of an electronic documents system arising from evidence capable of supporting a finding of storage of the electronic document[s] on a properly operating computer or other similar device;

  2. presumption of integrity of an electronic documents system arising from storage of an electronic document by a party adverse in interest; and 

  3. presumption of integrity of an electronic documents system arising from storage of an electronic document in the usual and ordinary course of business 

The Crown concedes that the trial judge erred in admitting the evidence under s. 31.3(b) but submits that it is admissible under s. 31.3(a). Simmons JA, writing for the court, accepts the Crown’s submission as the electronic evidence was capable of supporting a finding that the cell phone in question was properly functioning at all material times. The requirement under section 31.3(a) for “evidence capable of supporting” is a low threshold. It was up to the Appellant to lead “evidence to the contrary” if he wished to question the integrity of the electronic documents system - regardless of which subsection of s. 31.3 the Crown relied on.

Simmons JA, writing for the majority, dismisses the conviction appeal but allows the sentence appeal in part by setting aside the victim fine surcharge.

Dissent - Tulloch JA

Tulloch JA, writing for the dissent, finds that the trial judge’s errors relating to the reopening of the Crown’s case, the best evidence rule and the failure to hold a voir dire on the admissibility of the Appellant’s statement to the police deprived the Appellant of procedural fairness. The evidence admitted by these errors bolstered the Crown’s case. Each of the errors is sufficient to require a new trial. Tulloch JA finds that the curative proviso cannot remedy these errors. Cumulatively, these three errors require a new trial for the Appellant.

Tulloch JA finds that the trial judge erred (1) in law by reopening the Crown’s case and allowing the Crown to recall the officer-in-charge to give further evidence related to the basis of his belief about the Appellant living at the apartment, the Appellant’s cell phone number, and the Appellant’s relationship with the other people found at the residence; (2) in law by admitting the text messages pursuant to the adverse party presumption in s. 31.3(b) of CEA; and (3) by failing to hold a voir dire on the Appellant’s disclosure of his cell phone number.

  1. Reopening the Crown’s case

The defence’s late objection during closing submissions was improper, and did not trigger the rule in Browne v Dunn. 

The appropriate remedy, however, should have been for the trial judge to refuse to allow defence counsel to challenge the admissibility of the Crown’s evidence. A trial judge’s discretion to allow or refuse a late admissibility challenge is contingent on whether the challenge serves the interests of justice. In the case at bar, the interests of justice did not favour allowing the admissibility challenge as a timely challenge would have allowed the Crown to call additional evidence without needing to call additional evidence. 

The rule of Browne v Dunn only applies where the party intends to challenge the credibility of a witness, not anytime the defence challenges the witness’ evidence. The defence did not intend to impeach the officer’s evidence, thus, the rule in Browne v Dunn was not triggered.

Where an accused seeks to reopen a case prior to the entering of a conviction, the judge has a relatively wide discretion to do so. The trial judge must consider whether the evidence is relevant to a material issue, whether there would be prejudice to the Crown, and the effect of reopening on the expeditious conduct of the trial (See R v Hayward, 1993 ONCA).

Where the Crown, however, seeks to reopen a case the judge’s discretion is very restricted as prejudice to the accused increases correlatively. Crowns must introduce all its evidence probative of guilt before closing its case. Generally, the Crown is not entitled to present additional evidence after closing its case. The Crown may apply, however, either to call reply evidence, or to reopen its case. It is appropriate for the Crown to apply to reopen its case where the new evidence is relevant to a factual issue that was material during the Crown’s in-chief but does not relate to any new issue arising from the defence evidence. The Crown bears the onus to establish why it failed to call the evidence during its in-chief. The trial judge’s discretion to reopen the Crown’s case is at its narrowest once the defence has started its case. As outlined in R v P(MB), [1994] 1 SCR 555, there are two narrow circumstances in which the judge can permit the Crown to reopen its case:

  1. Conduct of defence contributed directly or indirectly to the Crown’s failure to call the evidence during its case; and

  2. The Crown’s omission or mistake was purely procedural or technical, and does not affect the substance or merits of the case

Additionally, the judge may permit the Crown to reopen its case in very limited and rare cases that are closely analogous to the two exceptions, and where it is sufficiently obvious that there will be no prejudice to the accused. This restrictive approach protects the accused’s right against self-incrimination, the right to make full answer and defence, and the right to a fair trial.

In the case at bar, none of the exceptions applied. As such, the trial judge had no basis for exercising his discretion to permit the Crown to reopen its case. 

For the curative proviso under s. 686(1)(b)(ii) of the Criminal Code to apply, the Crown must satisfy the court “that the verdict would necessarily have been the same if the error had not occurred” (See R v Marakah, 2017 SCC 59). The proviso is limited to cases where (1) the evidence against the accused is overwhelming, and (2) it can safely be said that the legal error was harmless because it could not have had an impact on the verdict. Reopening the Crown’s case is not a harmless error as the recalled evidence was significant to the Crown’s vase.

2. Admissibility of Cell Phone Evidence

Tulloch JA agrees with the majority that the trial judge erroneously admitted the evidence under the presumption in s. 31.3(b) of the CEA. Section 31.3(a) was the proper presumption but the original error is sufficient to warrant a new trial as the curative proviso cannot save this error. The adverse party presumption under s. 31.3(b) did not apply as the cell phone did not belong to the Appellant, and only the police had access to its contents following its seizure.

It would be unfair to the Appellant to deny him the ability to challenge the admissibility of this evidence, given that the crown never raised the application of s. 31.3(a) at trial. The onus was on the Crown to show that the admissibility requirements under the CEA were met. Tulloch JA is not convinced the verdict would have been the same without the error. Although he agrees the threshold in s. 31.3(a) is lower than (b) he does not conclude that the evidence would have necessarily been admitted at trial under s. 31.3(a), as such the proviso cannot remedy the error.

3. Failure to Hold Voir Dire

The trial judge erred in law by failing to hold a voir dire to determine the voluntariness of the Appellant’s statement to the police concerning his cell phone number. 

As a general rule, a trial judge must hold a voir dire to determine the voluntariness of a statement that an accused makes to a person in authority. The defence does not need to request such a voir dire, but defence counsel is entitled to waive the voir dire. For the waiver to be valid, defence counsel must expressly state that the voluntariness is not in issue or that the defence does not object the statement’s admission.

In the case at bar, the Appellant never waived his right to the voir dire. As such, the trial judge was required to hold one. A voir dire is a procedural safeguard that protects the accused’s substantive rights given the highly prejudicial nature of a confession. As a result, the proviso cannot save the error.

4. Police Conduct

Lastly, Tulloch JA expresses his concern about the police conduct that precipitated the Appellant’s confession. The office in question told the Appellant “you can tell us [where you’re keeping the drugs] so we don’t rip apart your house.” This conduct was improper. Homes attract special privacy interests. Despite having a warrant, police are not entitled to “rip apart” a home or use the threat of doing so to induce an accused person to incriminate himself. Intimidating police conduct on private property is particularly coercive (See R v Le, 2019 SCC 34).

Tulloch JA, writing for the dissent, would have allowed the appeal and ordered a new trial.

Read the full decision here.

Sara Little