January 2021 Recap
January 2021 Recap
Here are some of the most important cases from the Court of Appeal for Ontario published in January 2021.
This case highlights the careful balance that must struck between Charter-protected rights and search warrant raids, and provides some useful guidance on the duty to hold-off (RE: rights to counsel). In Pileggi, the Court of Appeal for Ontario concluded that the police violated their duty to hold off by attempting to elicit evidence from the accused before he could retain counsel. This, combined with the failure of the police to contact the accused’s counsel of choice and a three-hour delay in putting the accused in touch with duty counsel amounted to a section 10(b) violation. Despite the breach, the Court of Appeal agreed with the trial judge that the evidence be admitted under s. 24(2).
The police in this case obtained a warrant to search the accused’s home for drugs. The police executed the warranted by forcibly entering the accused’s home, without first knocking. Once they entered the house with their weapons drawn, they announced their presence. Once they located the accused, an officer advised him of his right to counsel. The accused advised he wished to speak with a lawyer. The accused did not speak to a lawyer for over three hours.
Knock-and-Announce Search Warrant Raids
As a general rule, police officers executing search warrants must “knock and announce” their presence, identify themselves as law enforcement and stating a lawful reason for entry (para 22).
Public safety and/or preventing the destruction of evidence, however, may relieve police of this requirement (para 23). See also, R v Cornell, 2010 SCC 31.
Where police depart from the “knock and announce” rule they must explain why they believed it was necessary to do so and the Crown must lay an evidentiary foundation that police had reasonable grounds to be concerned about safety or destruction of evidence. The greater the departure from the rule, the heavier the onus to justify their behaviour. Justification is assessed with reference to the information police had available to them at the time they acted (para 27).
On appeal, substantial deference is owed to the trial judge’s findings and assessment of these factors (para 29).
Section 10(b) - Right to Counsel
The Court dismissed the accused’s submission that the seven-minute delay in advising him of his right to counsel (the informational component under s. 10(b)) amounted to a 10(b) breach. Relying on R v Strachan, [1988] 2 SCR 980, the Court concluded that the immediacy of the right to counsel is subject to concerns for public and officer safety which may impact both the informational and implementational components under s. 10(b).
On the other hand, the Court concluded that an officer’s failure to hold off from attempting to elicit evidence from the accused before he spoke to counsel amounted to a s. 10(b) violation. Once the police advised Mr. Pileggi of his right to counsel, he advised he’d like to speak to his father to obtain the name of a lawyer as he didn’t have one. The officer advised he could speak to duty counsel while they attempted to contact his father. The accused then made a spontaneous utterance to the effect that whatever the police found belonged to him, not his wife (who was also present in the home at the time of the search). The accused was then brought to another officer for transport to the police station. This officer read the search warrant to the accused to which he replied his wife “has nothing to do with it.” The officer then asked him whether he would like to tell them where anything was, to which the accused responded “no.”
The Court affirmed that once a detainee has been informed of his rights under s. 10(b), and that person indicates they wish to retain counsel, the police have a duty to hold off questioning or otherwise attempting to elicit evidence from the detainee (para 71).” This duty also prevent police from interacting with an accused person in a manner that triggers a response from the accused (para 71). In this case, when the second officer asked the accused if he wanted to tell police where anything was, he was clearing seeking incriminating evidence.
The accused and the complainant were involved in an on-and-off, complicated affair. The incident giving rise to the charges before the court involved the complainant being severely burned on the side of the road. The complainant alleged that Mr. Borel poured gasoline on her and set her on fire as an act of revenge as she had ended their affair. Mr. Borel consistently denied the allegations. Instead, he testified that he agreed to meet the complainant that evening and that while he was taking a call in his car, he heard the complainant scream. He saw that she was burned. According to Mr. Borel, when he asked. the complainant who did this to her, she replied “nobody.”
Improper Demeanour and Opinion Evidence
The first two issues on appeal revolved around the proper use of demeanour and opinion evidence. For example, at trial, the Crown asked the 911 dispatcher whether there was anything unusual about the accused’s behaviour during the 911 call. The Crown played the 911 call and the dispatcher identified a number of portions she felt were “unusual.” The Court of Appeal concluded that, in essence, the Crown was eliciting opinion evidence from a lay person (para 26). This was improper given the fundamental principle that credibility assessments are to be left to the trier of fact, it is not proper for a witness to opine about the credibility of another witness (para 26). The bench notes that the trial judge ought to have curtailed this line of questioning and should have provided a limiting instruction (para 27). Ultimately, the Court, however, concluded that this error, on its own, did not warrant a new trial, particularly given the failure of trial counsel to object or request an instruction (para 29).
Similarly, the Crown asked the homicide detective to opine on what he found “unusual” about the video interview with the accused and to identify any inconsistencies within the interview (for example, the detective testified that he found the accused’s denials “relatively weak” and that based on his experience innocent people deny more strongly). The Court of Appeal reminds that “demeanour evidence is, itself, ‘highly suspect’” (para 37). It is highly prejudicial for a jury to hear from a police officer that they believed the accused was acting like a person who was guilty. This error was further compounded by the failure of the trial judge to provide a limiting instruction.
Narrative Exception to the Hearsay Rule
At trial, the Crown successfully applied to lead evidence of the complainant’s out of court statements to an EMS attendant that suggested the accused was responsible for burning her. The Crown had sought admission of the statements, not for the truth of their contents, but as narrative, and to rebut a possible defence that the incident was a suicide or accident.
The Court of Appeal disagreed finding that the evidence amounted to inadmissible hearsay for failing to meet the necessity and reliability requirements under Khelawon. This conclusion is unaltered by the Crown’s attempt to admit it as “narrative.” I
Justice Nordheimer highlights the over-reliance on the narrative exception to the hearsay rule, reminder counsel that criminal trials should be argued on the basis of admissible evidence not bad character under the guise of narrative:
At para 48: “On this point, “narrative” is too often used by counsel, supported by trial judges, as a vehicle for the admission of evidence that is otherwise inadmissible and prejudicial. The practice of using this route to admit prejudicial evidence must stop because this error will often lead to the requirement for a new trial… trial judges must be alert to the potential for such misuse and be on guard to bar this door.”
Ultimately, the Court concluded that the evidentiary records as a whole impacted the fairness of the trial. New trial ordered.
The Appellant, Mr. Quinton, was convicted of second degree murder. The Crown’s case was premised on a confession made by the Appellant to an undercover officer more than a year after the body of the deceased was found. The trial judge did not hold a voir dire as set out in R v Hart, 2014 SCC 52. On appeal, Mr. Quinton argued that the undercover operation fell within the parameters of a "Mr. Big” operation rendering the confession presumptively inadmissible, requiring the trial judge to conduct a voir dire to determine whether the confession met the Hart criteria. On appeal, the Crown submitted that the Appellant had waived the need for a Hart voir dire. The Court of Appeal allowed the appeal and ordered a new trial.
The Court of Appeal makes clear, however, that such a waiver is rendered invalid where it is premised on a misunderstanding of the law [paras 48, 71]. An uninformed waived is an invalid waiver. The law of waiver is unique as it applies to confessions given that confessions are often decisive of establish guilt. A trial judge is obligated to conduct a voir dire into the admissibility of a confession even in the absence of an objection (unless the right to a voir dire has been expressly waived) [para 45].
Having found that the operation consisted of a Mr. Big operation necessitating a Hart voir dire (in the absence of a valid waiver), the Court went on to conclude that had a voir dire been held, the confession would have been inadmissible.
The Court further noted serious concerns about abuse of process: the Appellant was an alcoholic, he had diagnosed mental health issues for which he took medication, he had at least one recent instance of suicidal ideation. His survival was contingent on disability benefits which he left with a trustee due to his substance abuse issues. When the officer befriended the Appellant, the Appellant gained a network of support who regularly supported him financially, bought him food and alcohol. When the Appellant suffered from a stroke, the undercover officer took on a role of a caregiver in addition to a friendship role. The Appellant was increasingly vulnerable and dependent on the officer he considered a friend. It was during this period that the police increased pressure for a confession. At the time of the confession, the Appellant had been off his medication for a few days. Whether conscious or not, the Appellant’s vulnerabilities were exploited by this operation.
Paras 93-95 - Police conduct must be carefully scrutinized given the risk that the police will go too far in these types of operations. The promise of a “reinvigorated” abuse of process doctrine must not be an empty one. This case makes clear that the risk that police go “too far” is a real one. It is the role of the court to provide a mechanism to safeguard and protect against abusive state conduct.
Background - R v Hart and Mr. Big Confessions
Hart deals with the admissibility of confessions made in the course of Mr. Big operations (which prototypically involve luring an individual into a fictitious criminal organization culminating in a meeting between the suspect and the head of the. organization pushing for a confession which acts as a “buy-in” into the criminal organization). These confessions are presumptively inadmissible because of the risks associated with the investigative technique.
Hart applies broadly to an operation where the operation poses the potential for: (para 42)
unreliable confessions
prejudicial effect of the evidence of the Appellant’s participation in the scheme and
potential for police misconduct (see also R v Kelly, 2017 ONCA 621)
Mr. Gero was convicted of two counts of possession for the purpose of trafficking, and one count of possession of proceeds of crime. On appeal, Mr. Gero argued that step 6 of the framework for challenging a search warrant or wiretap authorization established in R v Garafoli, [1990] 2 SCR 1421, violates section 7 of the Charter by depriving the accused of his right to make full answer and defence. This submission was largely premised on the fact that, under the current step six regime, an accused cannot challenge the truthfulness and accuracy of the affiant swearing the ITO thereby depriving him a mechanism for testing whether the affiant fairly summarized the CI’s information when applying for a warrant. In its stead, the Appellant suggests the use special advocates.
Of note, the Criminal Lawyers’ Association intervened in this case, submitted that special advocates were not appropriate in this context. Rather, special counsel should be appointed at the accused’s request when an accused sub-facially challenges a warrant.
The Court of Appeal upheld the constitutionality of Step 6 of Garafoli on the basis that the current step six procedure strikes the appropriate balance between an accused’s section 7 rights and the police need to protect confidential informants (“CIs”).
With regards to the Appellant’s submission that Step 6 deprives an accused of the right to makes full answer and defence. The Court of Appeal reminds us that this right is informed by context: an accused is not entitled to the most favourable procedures imaginable given that there are other rights at stake such as the need for effective law enforcement.
Background re: Garafoli Applications
Garafoli outlines six steps to follow when the Crown objects to disclosing part of an affidavit filed as part of application for authorization. The 6 steps are as follows:
Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.
The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.
After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.
After the determination has been made in step 3, the packet material should be provided to the accused.
If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.
If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that, if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.
Confidential informant privilege creates a particular dilemma for Crowns defending a warrant on review when CI information forms the grounds for an authorization as the Crown may be barred from tendering evidence if it tends to reveal the CI’s identity.
There are two solutions:
(1) the Crown can redact information that identifies the CI and rely on step 5 to justify the issue of the warrant solely on the basis of the information contained in redacted ITO, or
(2) if the redacting process renders the warrant unsupportable, the Crown can rely on step 6 and apply to have the reviewing judge consider as much of the redacted ITO as is necessary to support the search warrant. This route requires that the accused be provided with a judicial summary of the “nature” of the redacted information.