March 2021 Recap
March 2021 Recap
Here are some of the most impactful cases from the Court of Appeal for Ontario and the Supreme Court of Canada published in March 2021.
Court of Appeal for Ontario
JC was charged with a number of counts of sexual assault, voyeurism and extortion. The trial judge acquitted JC of the sexual assault and voyeurism charges arising from a sexually explicit video JC made of the complainant HD. The trial judge, however, convicted JC of sexual assault and extortion in relation to a number of non-consensual sexual encounters between the parties on the basis that JC had threatened to post the video if she did not continue a sexual relationship with him. The extortion charge was stayed pursuant to R v Kienapple.
In his reasons for judgement, the trial judge noted that he found JC’s evidence suspect given that JC testified that on each and every occasion they engaged in sexual activity, he carefully asked for consent and followed-up at each progressive stage of the sexual encounters. The trial judge found this did not accord with common sense and experience about how sexual encounters unfold, and that JC’s testimony seemed rehearsed or staged.
Justice Paciocco, writing for the Court of Appeal, clarifies the rule against ungrounded common-sense assumptions, and the rule against stereotypical inferences in the context of sexual assault allegations:
Rule Against Ungrounded Common-Sense Assumptions
Judges must avoid speculative reasoning that invokes “common-sense” assumptions that are not grounded in the evidence or appropriately support by judicial notice.
This “rule” does not prohibit judges from relying upon common-sense or human experience to identify inferences that arise from the evidence or to interpret evidence.
In fact, trial judges are regularly asked to do this in, for example, drawing inferences from circumstantial evidence or assessing after-the-fact conduct evidence.
Rather, the rule prohibits judges from using common-sense or human experience to introduce new consideration, not arising from the evidence, into the decision-making process.
Rule Against Stereotypical Inferences
Factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour.
It is an error of law to rely on stereotypes or erroneous common-sense assumptions about how both a sexual offence complainant or accused is expected to act, to either bolster or compromise their credibility.
This rule is aimed at prohibiting particular inferences, it does not govern the admissibility or use of particular kinds of evidence.
The Court of Appeal goes on to discuss the effect of these “reasoning” errors. These errors are reversible only when the relevant inference played an important role in the impugned conclusion. An error is based on a stereotype or improper inference when the same played a material role in explaining the impugned conclusion.
With regards to the case before the court, Justice Paciocco concluded that the trial judge erroneously invoked an ungrounded common-sense assumption by concluding that the manner in which JC obtained consent was contrary to common sense and experience about how sexual encounters unfold. This is a sweeping generalization about human sexual behaviour - not grounded in any evidence before the court. Furthermore, the trial judge erred in relying on stereotypical reasoning by rejecting JC’s conduct for being “too perfect, too mechanical, too rehearsed, and too politically correct.” In doing so, the trial judge invoked a stereotype that people engaged in sexual activities generally do not do the “politically correct” thing of expressly discussing consent at each stage of the encounter. In fact, the behaviour rejected by the trial judge is actually the very behaviour that is encouraged by Canadian sexual assault law.
The Court of Appeal for Ontario provides a helpful summary of the principles governing the use of judicial notice to prove facts (see paras 31-38):
Judicial notice is the only exception to the general rule that cases must be decided on the evidence presented by the parties in open court;
Judicial notice involves the acceptance of a fact or state of affairs without proof;
Facts judicially noticed are not proved by evidence under oath; nor are they tested by cross-examination;
The threshold for judicial notice is strict;
Judicial notice applies to two kids of facts:
(1) Those that are so notorious or “accepted” either generally or within a particular community as not to be the subject of dispute among reasonable persons (R v Mabior, 2012 SCC 47); and
(2) Those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy (Quebec (AG) v A, 2012 SCC 5))
The term ‘judicial notice’, however, captures various forms of judicial notice:
(a) Tacit or informal judicial notice, which involves the trier of fact drawing on common experience, common sense or common knowledge to interpret and understand the formal evidence presented at trial;
There is an inherent tension in this category. On one hand, Canadian law has long recognized that judges are shaped by their respective experiences and perspectives. As a result, when judges decide factual matters, they naturally rely on their internal library of information acquired through experience, education, reading, etc. This should not be confused, however, with reliance on personal knowledge in a particular case. Unless the criteria of notoriety or immediate demonstrability are present, a judge cannot take judicial notice of a fact within their personal knowledge.
(b) Express judicial notice, which concerns the notice of specific facts of the notorious and indisputable variety; and
(c) Contextual judicial notice that strives to provide context, background or a frame of reference to assist the trier of fact in making case-specific findings of fact.
Facts exist on a spectrum that runs from those that are central or dispositive to a key issue at one end, to those that are merely contextual or provide background at the other. The closer a fact lies to the dispositive end, the more pressing it is to meet the two criteria of notoriety or immediate demonstrability.
Judicial notice and matters that require expert evidence are distinct. Matters that are the subject of expert evidence are, by their very definition, neither notorious nor capable of immediate demonstration, they are subject to opinion.
From a procedural perspective, where a judge, on their own initiative, wishes to take judicial notice of a fact that bears on a key issue, the judge must ensure that the parties are given an opportunity to make submissions (oral or written).
The Court of Appeal goes on to explain that there is an important difference between judges relying on prior general experience (which inherently shapes the way they examine legal issues), and judges drawing upon personal experiences in specific cases to decide the credibility of a key witness. The former is permissible, the latter is not.
The only facts a trier of fact may consider in making their decision is the evidence adduced in court. Facts that satisfy the criteria for judicial notice, as outlined above, are the only exception to that rule.
Preliminary inquiries are only available for offences that carry a maximum of 14 years or higher (section 535 of the Criminal Code). The Court of Appeal for Ontario held that an accused person charged with an offence with a maximum penalty of less than 14 years (and therefore not ordinarily entitled to a preliminary inquiry) is not entitled to a preliminary inquiry where the Crown seeks a dangerous or long-term offender designation despite facing a potential period of indefinite detention.
The appellant was approached by a uniformed officer. He ran. Following a foot chase, the appellant was finally handcuffed. He advised the officer he had what was later determined to be a quantity of fentanyl and a prescription pill bottle in his sock. Two other officers arrived and conducted a safety search which uncovered some currency, cell phones and lighters. The appellant was charged with possession of fentanyl for the purpose of trafficking. The officers also searched his bag which revealed a number of old cell phones and cigarettes. Notably, no drugs were found. The appellant was placed, handcuffed, in the back of the police cruiser. When they arrived at the police station, there were multiple “dime bags” on the floor at the feet of the appellant. One of the officers noted a “bulge” in the appellant’s mouth containing heroin, fentanyl, etc. wrapped in plastic. A thorough search of the police cruiser further revealed a number drugs and unused baggies in a black pouch and on the floor behind the driver’s seat. While their accounts differed, both officers testified that they had inspected the rear of the cruiser at the beginning of their shift and did not notice any drugs.
One of the officers, Constable Atchison, destroyed a number of items during processing as he did not believe they were significant, including currency, a pouch containing the currency, a vial of cannabis oil and all of the drug packaging. None of these items were tested for fingerprints or photographed for identification prior to being destroyed.
The appellant, Mr. Hillier, testified that when he was in the back of the cruiser he noticed something shiny on the ground. He kicked the item which revealed a small bag. He was able to unzip it which revealed a number of drugs. He placed the ball of drugs in his mouth as he was afraid to be caught with it.
At trial, the appellant brought an application for a stay of proceedings given that his right to a fair trial was prejudiced by the destruction of highly relevant evidence. Alternatively, he sought the exclusion of the evidence found in the cruiser. The trial judge dismissed the application.
The Court of Appeal concluded that the trial judge erred in dismissing the application. In dealing with lost or destroyed evidence, the Crown bears the onus of explaining how the evidence was lost. To determine whether the Crown’s explanation is satisfactory, the Court must look at the circumstances surrounding the loss of the evidence including whether the Crown or police took reasonable steps to preserve the evidence for disclosure (see R v La, [1997] 2 SCR 680).
In this case, the police took no steps to preserve the evidence. Rather, the police actively destroyed it without taking any photographs prior. How the drugs came to be in the back of the cruiser was a critical factual issue in this case. Some of the destroyed items, such as the pouch, were central to resolving this issue and therefore highly relevant to a material issue at trial. The fact that the officer, personally, did not believe the items to be important at the time, is not the proper test to be applied (see R v Hersi, 2019 ONCA 94 at para 32). The Court of Appeal concludes that the destruction of these items was the result of police negligence. Their destruction infringed the Appellant’s ability to make full answer and defence breaching his rights under sections 7 and 11(d) of the Charter.
Nordheimer JA further notes that trial judges cannot take judicial notice, from their own experiences, regarding the likelihood of finding fingerprints on particular items. Expert evidence should be called in these circumstances.
In terms of remedy, Nordheimer JA concludes that a stay of proceedings was not appropriate in this case. Instead, the Court, after undergoing an analysis under Grant, concludes that the evidence in the cruiser ought to be excluded under s. 24(2) of the Charter. The destruction of evidence is a serious infringement of the Crown’s disclosure obligations and had a significant impact on Mr. Hillier’s rights given that the destroyed evidence was critical on a material issue at trial. The destroyed pouch could have lent support to Mr. Hillier’s evidence or at a minimum raised a reasonable doubt.
As a result, the Court entered acquittals for the counts related to the evidence found in the cruiser. With regards to the drugs found on Mr. Hillier’s person prior to entering the cruiser (which he voluntarily advised the officer were in his sock), the Court set aside the conviction for possession for the purpose of trafficking and substituted a conviction for simple possession as the Crown did not lead evidence as to trafficking.
The Court of Appeal for Ontario held that the Ontario Review Board (“ORB”) cannot force a videoconference hearing without the defendant’s consent given the Not Criminally Responsible regime’s statutory scheme which is governed by Part XX.1 of the Criminal Code. Deviations from in-person hearings are more than mere procedural irregularities. Even the pandemic does not justify a departure from the requirements under the Criminal Code. As a result, where the ORB conducts a disposition hearing via videoconference without the defendant’s consent the disposition is null and void for lack of jurisdiction.
Supreme Court of Canada
The majority, written by Justice Moldaver, concludes that where verdicts are inconsistent, the Crown can save the conviction by establishing that the acquittal was premised on an error of law.
In an appeal alleging inconsistent verdicts, the ultimate inquiry for appellate courts is whether the verdicts are truly inconsistent and therefore unreasonable. The Crown can seek to reconcile seemingly inconsistent verdicts on the basis that they were the result of a legal error in jury instructions. To do so, the Crown must satisfy the appellate court to a high degree of a certainty that:
There was a legal error in the jury instructions; and
that the error:
Had a material bearing on the acquittal;
Was immaterial to the conviction; and
Reconciles the inconsistency by showing that the jury did not find the accused guilty and not guilty of the same conduct.
Where the appellate court cannot conclude with sufficient certainty that the legal error did not taint the conviction, setting aside the acquittal will require a retrial on all charges. Where the court can isolate the legal error, the conviction should stand and only the acquitted charge should be sent back for new trial.
In some cases, the appropriate remedy may be to enter a stay of proceedings for the acquitted charge under the court’s residual power pursuant to s. 686(8) of the Criminal Code. To do so, there are 3 requirements to be met:
court must have exercised one of the triggering powers conferred under s. 686(2), (4), (6) or (7);
the order issued must be ancillary to the triggering power; and
the order must be one that justice requires.
In this case, the trial judge misdirected the jury by leaving them with the impression that the element of force required for sexual assault was different than the element of touching required for the other two offences (sexual interference and invitation to sexual touching). This led the jury to acquit the accused on the sexual assault charge but did not affect the convictions or the trial judge’s instructions with respect to the other two charges. In the majority’s view, the legal error, in effect, reconciled the apparent inconsistency between the verdicts. The majority concluded that the two convictions should be restored and that the acquittal (sexual assault charge) must be set aside. In the circumstances of the case, the majority concluded that a stay of proceedings rather than a re-trial was the appropriate remedy.
Justices Brown and Kasirer, writing for the dissent, agreed that the verdicts were inconsistent and that the jury was misdirected which amounted to a legal error that may have reasonably had a material bearing on the acquittal. They disagreed, however, with the appropriate remedy. In their view, a new trial on all three charges was necessary.
In the dissent’s view, the majority’s approach, which relies on retracing a jury’s reasoning with a sufficient degree of certainty, is a type of review that (1) is precluded by virtue of section 686(4)(b)(i), (2) has never been sanctioned by the Supreme Court, and (3) practically speaking is untenable.
Section s. 686(4)(b)(i) of the Criminal Code specifies that a new trial is the sole remedy available where a Crown successfully appeals from a verdict of acquittal by a jury. Justices Brown and Kasirer point to the Court’s finding in R v JF, 2008 SCC 60, which makes clear that the existence of a legal error does not reconcile inconsistent verdicts.