03 June

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The Relevance of Third Party Charter Violations

Posted by Rory

R. v. Guindon (the relevance of 3rd party charter violations)

[2015] O.J. No. 7169

2015 ONSC 4317

In this case the issue to be determined was whether evidence obtained in violation of the Charter rights of a third party should be excised from affidavits and ITOs that were used to obtain orders that do engage the applicants’ privacy interests.

The Crown took the position that “in relation to unconstitutionally obtained evidence, an applicant can only seek excision of it if it involved an infringement of his personal Charter rights”. In support, the Crown cites Chang, [2003] O.J. No. 1076, an ONCA decision. In Chang, the ONCA found that the applicants did not have the standing to challenge certain Quebec authorizations where they were not the named party. The Crown takes this decision to stand for the proposition that an applicant can never “challenge a search warrant or wiretap authorization based on a violation of a third party’s Charter rights.”

L.A. BIRD J rejects this proposition, and notes that in Chang the applicants engaged in a full Garafoli review, unlike this case where the applicants are challenging the validity of the evidence upon which the authorizations are based. In fact the Judge notes that Chang also acknowledged the applicants’ right to question the evidence upon which their authorizations are based, and this is something distinct from a full Garafoli review.

The Judge notes that there are other cases that support the Crown’s view, but these are against the tide of general jurisprudence in Ontario. The judge states as a matter of law that

· “The law clearly requires the excision of all references to evidence that was obtained in violation of an applicant’s Charter rights: R. v. Grant, [1993] S.C.J. No. 98, R. v. Plant, [1993] S.C.J. No. 97 and R. v. Wiley, [1993] S.C.J. No. 96.”

· “The law is well established that all erroneous material must be excised from an affidavit on a Garofoli review (R. v. Araujo, [2000] S.C.J. No. 65 at paragraphs 57 and 58).”

In conclusion, the Judge disagrees with the Crown’s position and grants the application. The Judge finds that the Applicants are entitled to challenge any unconstitutionally obtained evidence, and it is irrelevant whether they are the named party or a third party in the authorization in question.

* google

15 April

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WD

Posted by Rory

in credibility

WD

R. v. Kennedy. [2015] N.J. No. 107, 2015 NLCA 14

Facts: This is a rather straightforward sexual assault case. The accused forced himself on the complainant, inserted a finger and his penis into her vagina. There was evidence before the court in the form of the complainant’s testimony, a witness’ testimony, text messages between the accused and the complainant, and testimony of the accused’s girlfriend. There was also forensic evidence, and the testimony of a nurse. The accused was convicted. The decision was appealed.

Issue: The central issue before the Court of Appeal was the manner of the trial judge’s reasoning. In particular, the Court had to decide whether the reasonable doubt analysis could properly be used in evaluating individual pieces of evidence, or whether a more cumulative method was needed.

Analysis: The Court of Appeal overturned the decision, and ordered a fresh trial. The Court stated that it is a clear legal principle that the reasonable doubt analysis involves the cumulative effect of all the evidence before the court. The analysis cannot be done in a piecemeal fashion. The Court cites a number of important cases to establish this essential proposition. . R v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197. R. v. Morin [1988] 2 S.C.R. 345, and R. v. B. (G.) [1990] 2 S.C.R. 57.

The Court goes on to note that it is not enough that the Judge knew the law in this case. A misapplication of the law will not save the decision, even when there is a clear statement of the correct law.

In R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5 at paras. 32-33,

“A correct statement of the law can scarcely save its evident misapplication … [J]udges may know the law, yet err in its application.”

15 April

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Garofoli Procedure

Posted by Rory

in Search Warrants

Garofoli Procedure

R. v. Burgher, [2014] O.J. No. 6449, 2014 ONSC 4527

PRE-TRIAL RULING
THE PROCEDURE PURSUANT TO R. V. GAROFOLI

Background: This is a pre-trial application on the nature of the steps articulated by Sopinka J. in Garofoli in challenging a wiretap or a search warrant. It is useful to reproduce the six steps here.

1. 1-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.

2. 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.

3. 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.

4. After the determination has been made in (3), the packet material should be provided to the accused.

5. If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.

6. 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.

The accused contends the nature of the judicial summary in Step 2 and Step 6 is fundamentally different. Whereas, the judicial summary requirement in step 2 can be fulfilled by a generic description of the kinds of excised information, the accused maintains that the judicial summary in step, while like the judicial summary in step 2 is of no evidentiary significance in determining the validity of the warrant, must “be detailed enough to make the accused sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.”

The Crown maintains that the nature of the judicial summaries in both steps is essentially the same, and further contends that the judicial summary in step 2 can form part of the evidentiary record in the Crown’s application under step 5.

The accused also submits that the Crown must choose between step 5 and step 6.

Analysis: The Court agrees with the accused’s contention that the judicial summaries in steps 2 and 6 are fundamentally different. While the summary in step 2 is of generic nature, the summary in step 6 will be more detailed. In rare cases, however, the summaries may be the same.

The Court also notes that “judicial summaries created at step two and step six of the Garofoli procedure are designed to serve as a substitute for full disclosure to fairly help the accused participate meaningfully in the process. They were not intended to serve as a more expansive evidentiary record to determine the legal sufficiency of the search warrant.”

The Court goes on to note that the Crown does not have to choose between step 5 and step 6, but may proceed with both simultaneously. The Court is concerned that making the Crown choose would simply result in the Crown proceeding with step 6, which would be more time-consuming. While the Court recognizes that simultaneous Step 5 and Step 6 applications are also time-consuming, it holds that that is the law as per Garofoli.

15 March

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Colour of Right

Posted by Rory

in Defences, Uncategorized

Theft and Colour of Right

Theft

322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

(b) to pledge it or deposit it as security;

(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

Motor vehicle theft

333.1 (1) Everyone who commits theft is, if the property stolen is a motor vehicle, guilty of an offence and liable

(a) on proceedings by way of indictment, to imprisonment for a term of not more than 10 years, and to a minimum punishment of imprisonment for a term of six months in the case of a third or subsequent offence under this subsection; or

(b) on summary conviction, to imprisonment for a term of not more than 18 months.

WHAT DOES THE CROWN NEED TO PROVE?

This case will hinge on whether the alleged theft took place fraudulently and without colour of right. Case law suggests that both defences are related and will hinge on similar facts.

Fraudulent Intent

R v Laroche, [1964] SCR 667

Honest but mistaken belief works

Colour of Right

R v Lilly (1983), 34 CR (3d) 1, R v. Shymkowich, 19 CR 401

Honest but mistaken belief works

“With respect, this is clearly, in my view, misdirection in law. The fate of the accused’s defence of colour of right was not dependent upon the jury determining when the commissions were payable. That question was indeed important as relevant to whether the monies were his or those of his clients. The fact that they still be the property of the client was a prerequisite to his having to raise a defence to the taking or conversion. Rather, the accused’s defence was dependent upon whether they, the jury, were satisfied beyond a reasonable doubt that he, the accused, had not, at the time of the transfers, an honest belief that he had the right to that money, and not, as they were told, dependent upon what they, the jurors, thought his rights were.”

Noting up Colour of Right Cases

Lilly is the foundational case in this area. It is important to note that in Lilly, a case decided in ’83, the alleged theft involved almost 27 thousand dollars, a lot of money now. But the SCC was very clear in stating that honest but mistaken belief is always a defence to theft.

R. v. Abramenko [2008] A.J. No. 61, 2008 ABPC 23

Alberta Provincial Court case that does a good job of canvassing the law.

Further, I am satisfied that the accused had a colour of right when he withdrew the monies from Brent’s account. In R. v. Dorosh (G.) (2004) 241 Sask. R. 180 (Sask. C.A.), Bayda C.J.S., speaking for the panel, at paragraphs 16 – 18 inclusive, gave the following explanation of the concept of “colour of right”:

“[16] The jurisprudential history surrounding the phrase ‘colour of right’ indicates that the meaning of the phrase has a certain quality of elusiveness (see The Law of Theft and Related Offences by Winifred H. Holland (Toronto: Carswell, 1998) at pp. 150-170). The definition of the phrase by Martin J.A., speaking for the Court (including Gale C.J.O., and Estey J.A.), in R. v. DeMarco (1973), 13 C.C.C. (2d) 369 (Ont. C.A.) at 372 may be taken to have settled many, if not all, of the contentious issues raised by earlier Canadian cases where the phrase was considered. He said:

‘The term “colour of right” generally, although not exclusively, refers to a situation where there is an assertion of a proprietary or possessory right to the thing which is the subject-matter of the alleged theft. One who is honestly asserting what he believes to be an honest claim cannot be said to act “without colour of right”, even though it may be unfounded in law or in fact: see R. v. Howson, [1966] 3 C.C.C. 348; 55 D.L.R. (2d) 582, [1966] 2 O.R. 63. The term “colour of right” is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done: R. v. Howson. The term when used in the latter sense is merely a particular application of the doctrine of mistake of fact.’

[17] Since DeMarco was decided, the Supreme Court of Canada has dealt with the ‘colour of right’ issue in two cases: R. v. Lilly, [1983] 1 S.C.R. 794; 48 N.R. 140; 24 Sask.R 50 and R. v. Jones and Pamajewon, [1991] 3 S.C.R. 110, 137 N.R. 321. Nothing said in the judgments in either of those cases in any way detracts from Martin, J.A.’s, definition. If anything, the court’s decision in Lilly may be said to impliedly support the definition. In two other cases, R. v. Lafrance, [1975] 2 S.C.R. 201 and R. v. Milne, [1992] 1 S.C.R. 697; 135 N.R. 202; 125 A.R. 135; 14 W.A.C. 135; [1992] 3 W.W.R. 97; 85 Alta. L.R. (2d) 257; 12 C.R. (4th) 175; 70 C.C.C. (3d) 481, the ‘colour of right’ issue arose only incidentally and not as a principal issue. These judgments as well contain nothing that detracts from the DeMarco definition.

[18] A colour of right can have its basis in either a mistake of civil law (a colour of right provides an exception to s. 19 of the Code; see: The Law of Theft and Related Offences p. 153) or in a mistake in a state of facts. The mistake in each case must give rise to either an honest belief in a proprietary or possessory right to the thing which is the subject matter of the alleged theft or an honest belief in the state of facts which if it actually existed would at law justify or excuse the act done.”

40 In the case at Bar, the accused honestly believed that he had the right to borrow money from his son’s AISH account (and, on the facts as I have found them, he did have that right). While the AISH monies were to be used for the benefit of Brent, I take from Ms. Mittelstadt’s testimony that the right to borrow did not depend upon the borrowing being for the benefit of the trust beneficiary. The fact that the accused had an honest belief that his borrowing and use of the funds was to the benefit of Brent goes not to the issue of “colour of right”, but rather it goes to the question of whether the acts of the accused were fraudulent (an issue with which I have already dealt).

41 I am completely satisfied that the accused had a colour of right to do that which he did.

R. v. DeMarco [1973] O.J. No. 533

(This is an older case than Lilly, but on point)

Involved a vehicle, accused had kept a rental vehicle beyond due date, and had not paid, she thought there was nothing wrong with her behaviour and she could just pay them later

“The term “colour of right” generally, although not exclusively refers to a situation where there is an assertion of a proprietary or possessory right to the thing which is the subject matter of the alleged theft. One who is honestly asserting what he believes to be an honest claim cannot be said to act “without colour of right”, even though it may be unfounded in law or in fact. Reg. v. Howson, [1966] 2 O.R. 63. The term “colour of right” is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done: Reg. v. Howson, supra. The term when used in the latter sense is merely a particular application of the doctrine of mistake of fact.”

R. v. Pena – [1997] B.C.J. No. 1405

Very interesting case, stands for the proposition that mistake of law is also included in colour of right defence. (On reflection, this is backed up in other cases too, plus this seems self-evident because colour of right is an element of the office and mistake about it (which can include mistake of law) should be a defence)

“However, as noted by Stuart in Canadian Criminal Law, supra at 308, “it now seems clear that colour of right can also result from a pure mistake of law.”

11 In R. v. Howson, [1966] 3 C.C.C. 348 (Ont. C.A.), a case where a car towing company had been charged with the theft of a car, Porter C.J.O. reviewed the law regarding colour of right and mistake of law, and held, at p. 356:

In my view the word “right” should be construed broadly. The use of the word cannot be said to exclude a legal right. The word is in its ordinary sense charged with legal implications. I do not think that s. 19 affects s. 269 [now s. 429]. Section 19 only applies where there is an offence. There is no offence if there is colour of right. If upon all the evidence it may fairly be inferred that the accused acted under a genuine misconception of fact or law, there would be no offence of theft committed. The trial tribunal must satisfy itself that the accused has acted upon an honest, but mistaken belief that the right is based upon either fact or law, or mixed fact and law.

12 Accordingly, in R. v. DeMarco (1974), 13 C.C.C. (2d) 369 at 372 (Ont. C.A.), where the accused had rented a car and not returned it on time because she did not think that she was obliged to, Martin J. held:

The term “colour of right” generally, although not exclusively, refers to a situation where there is an assertion of a proprietary or possessory right to the thing which is the subject-matter of the alleged theft. One who is honestly asserting what he believes to be an honest claim cannot be said to act “without colour of right”, even though it may be unfounded in law or in fact…The term “colour of right” is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done…The term when used in the latter sense is merely a particular application of the doctrine of mistake of fact.
13 An honest belief concerning property rights, whether based on a mistake in fact or in law, may constitute a colour of right: Lilly v. The Queen (1983), 5 C.C.C. (3d) 1 (S.C.C.). (I don’t think Lilly makes this clear at all, it talks about mistake of fact

14 Recently, in R. v. Jorgensen (1995), 102 C.C.C. (3d) 97 (S.C.C.), Lamer C.J.C. noted at pp. 102-103 of his dissenting opinion that:

Despite the importance of [the rule against ignorance of the law] some exceptions to it are already established in our law…a certain number of our Criminal Code offenses provide an excuse for an accused who acted with colour of right. The existence of these exceptions demonstrates that the ignorantia juris rule is not to be applied when it would render a conviction manifestly unjust.

15 By implication, Lamer C.J.C. apppears to acknowledge that the colour of right defence includes mistake of law.

16 Finally, Penashue, supra, R. v. Drainville (1991), 5 C.R. (4th) 38 (Ont. Prov. Ct.) and R. v. Potts, [Q.L. [1990] O.J. No. 2567] (Ont. Prov. Ct.) a11 involve fact situations similar to present case. The accused were charged with mischief for occupying what they claimed were aboriginal lands. In all three cases, it was accepted that mistake of law was included in the colour of right defence, and the Court instead focused on the issues of a moral as opposed to legal right, and the accused’s “honest belief.””

04 March

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Mistake of Fact

Posted by Rory

in Defences, mistake of fact

Mistake of Fact and consent

Thoughts re: Mistake of Fact w.r.t. consent

Mistake of fact:

265 (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

Mistake of fact w.r.t. consent is therefore a valid defence.

It is important to note that mistake of fact (with the exception of sexual assault cases) does not have to be based on reasonable grounds.

R. v. Bulmer [1987] 1 S.C.R. 782

“The defence has been variously described and may be conveniently stated in these terms. If an accused entertains an honest belief in the existence of a set of circumstances which, if they existed at the time of the commission of an otherwise criminal act, would have justified his act and rendered it non-criminal, he is entitled to an acquittal. The law on this question as far as Canada is concerned has been stated authoritatively in Pappajohn v. The Queen, [1980] 2 S.C.R. 120. Dickson J. (as he then was), writing on this point with the concurrence of the majority of the Court, held that the defence was available in Canada, that it goes to the question of whether the accused had the necessary mens rea for the commission of the crime involved, and that the mistaken belief upon which the defence rests need not be reasonable, if honestly held. The subject has been further explored by my colleague, Wilson J., in her reasons for judgment in R. v. Robertson, [1987] 1 S.C.R. 918 (judgment delivered concurrently), with whose observations I agree.”

But I would argue that there were reasonable grounds for our client to believe that the complainant was one of the attackers. He is Latin American, and therefore brown skinned like the group of Arabs that attacked our client. Furthermore, email communication with the crown indicates that the complainant was friends with at least two of the Arab men in question, and he was by all accounts, near or at the scene of the crime. It is therefore not a stretch to believe that the complainant was one of his attackers. Impaired, and justifiably angry, our client had reasonable grounds to believe that the complainant was one of his attackers, and fleeing from him after subjecting him to significant bodily harm.

Note: R. v. Jobidon [1991] 2 S.C.R. 714: The limitation demanded by s. 265 vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl.

Firstly, Jobidon specifically mentions that intention is needed to vitiate consent. This is also the requisite mental element for the assault offence (R v Danydink 253 C.C.C. (3d) 493 (B.C C.A) Did our client intentionally cause serious bodily harm? It is possible that he was reckless or careless, but quite unlikely that our client, impaired and justifiably angry, had the requisite intention to cause serious bodily harm to the complainant. Our client was simply reacting to the onslaught by a group of men. He was actively defending himself, rather than intentionally attacking the complainant with the intent of causing serious bodily harm. Mistake of fact w.r.t. consent is very much a live issue.

Even if we are to accept that our client had the requisite intention there are ways around the Jobidon problem. It is important to note that in Jobidon “the fight” resulted in death. In R. v. Nash [1996] O.J. No. 4239, Quinn J. reviews Jobidon exhaustively and has some interesting insights into the decision.

at p. 491:

“Although there is certainly no crystal-clear position in the modern Canadian common law, still, when one takes into account the combined English and Canadian jurisprudence, when one keeps sight of the common law’s centuries-old persistence to limit the legal effectiveness of consent to a fist fight, and when one understands that s. 265 has always incorporated that persistence, the scale tips rather heavily against the validity of a person’s consent to the infliction of bodily injury in a fight …
Notwithstanding this conclusion, given the residual indetermination which admittedly lingers in the recent Canadian cases, it is useful to canvass policy considerations which exert a strong influence in this appeal, for they rather decisively support the respondent, bringing down the scales even more surely in support of the decision in the court below.
Foremost among the policy considerations supporting the Crown is the social uselessness of fist fights … it is not in the public interest that adults should willingly cause harm to one another without a good reason. There is precious little utility in fist fights or street brawls. These events are motivated by unchecked passion.”
and at p. 492:

“Given the spontaneous … nature of many fist fights, I would not wish to push the deterrence rationale too far. None the less, it seems reasonable to think that, in some cases, common law limitations on consent might serve some degree of deterrence to these sorts of activities.”
and at p. 493:

“… If aggressive individuals are legally permitted to get into consensual fist fights and they take advantage of that license from time to time, it may come to pass that they eventually lose all understanding that that activity is the subject of a powerful social taboo. They may too readily find their fists raised against a person whose consent they forgot to ascertain with full certitude. It is preferable that these sorts of omissions be strongly discouraged.
Wholly apart from deterrence, it is most unseemly from a moral point of view that the law would countenance, much less provide a backhanded sanction to the sort of interaction displayed by the facts of this appeal. The sanctity of the human body should militate against the validity of consent to bodily harm inflicted in a fight.”
and at p. 494:

“… it must not be thought that by giving the green light to the common law, and a red light to consent fights, this court is thereby negating the role of consent in all situations or activities in which people willingly expose themselves to intentionally applied force. No such sweeping conclusion is entailed. The determination being made is much narrower in scope.
How, and to what extent, is consent limited?
The law’s willingness to vitiate consent on policy grounds is significantly limited. Common law cases restrict the extent to which consent may be nullified; as do the relevant policy considerations. The unique situation under examination in this case, a weaponless fist fight between two adults, provides another important boundary.
The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl. (This test entails that a minor’s apparent consent to an adult’s intentional application of force in a fight would also be negated.) This is the extent of the limit which the common law requires in the factual circumstances of this appeal. It may be that further limitations will be found to apply in other circumstances. But such limits, if any, are better developed on a case-by-case basis, so that the unique features of the situation may exert a rational influence on the extent of the limit and on the justification for it.”
and at p. 495:

“… the preceding formulation avoids nullification of consent to intentional applications of force which cause only minor hurt or trivial bodily harm.”
Thus, Jobidon does not eliminate consent as a defence in cases of assault simpliciter.

2.
According to Jobidon, What Level of Bodily Harm Must Be Suffered Before Consent Is Rendered Ineffective As A Defence?

16 Earlier I set out this statement by Gonthier J. (at p. 494) which I now repeat:

“The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl.”
(Emphasis added.)
17 However, Gonthier also stated, as already indicated (at p. 495):

“Finally, the preceding formulation avoids nullification of consent to intentional applications of force which cause only minor hurt or trivial bodily harm. The bodily harm contemplated by the test is essentially equivalent to that contemplated by the definition found in s. 267(2) of the Code, dealing with the offence of assault causing bodily harm. The section defines bodily harm as ‘any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature’.” (Emphasis added.)
18 So, what is the level of bodily harm that must be reached before consent ceases to be a valid defence? Should “serious hurt or non-trivial bodily harm” and “minor hurt or trivial harm” be read so as to be compatible with the definition of bodily harm found in s. 267(2) of the Criminal Code? Or, as Crown counsel submits, in using the words “essentially equivalent”, is Gonthier J. proposing another (and lower) threshold of bodily harm? I disagree with such a submission. To begin with, no good purpose would be served by setting up a new category of bodily harm. The law of assault would be complicated unnecessarily. It would result in a sliding scale for bodily harm. Furthermore, Crown counsel is putting too fine a point on the meaning of “essentially”. In The Shorter Oxford English Dictionary (Third Edition), “essential” is defined as “of or pertaining to the essence of anything”. Consequently, it is my view that Gonthier J. was not at all purporting to set up a new category of bodily harm. Instead, the bodily harm that vitiates consent is that which is found in s. 267(2) of the Criminal Code and nothing less. Support for this view is found in R. v. Welch (1995), 43 C.R. (4th) 225 (Ont.C.A.), where Griffiths J.A., writing for the Court, states at p. 249:

“In my view, however, the message delivered by the majority in Jobidon is that the victim cannot consent to the infliction of bodily harm upon himself or herself, as defined in s. 267(2) of the Code, unless the accused is acting in the course of a generally approved social purpose when inflicting the harm.” (Emphasis added.)
19 Accordingly, the ratio in Jobidon could be stated as follows:

20 In the case of a consensual, weaponless fist fight (brawl), between two adults, consent is ineffective as a defence where bodily harm, as defined in s. 267(2) of the Criminal Code, is occasioned. Thus, the logical inference, of which I spoke earlier, would now be that consent is effective as a defence where the level or degree of bodily harm falls short of, or does not meet, the definition found in s. 267(2).

My thoughts on how we can use this: Jobidon is the leading case on consent being vitiated, and the policy considerations underlying the decision provide important insights into why the court came to this decision. The court talks of fist fights and brawls, and how public policy dictates that these activities be discouraged. It is clear that public policy had a huge role in Jobidon, and public policy does dictate that people not consent to their own deaths in voluntary fist fights. However, for our client, the situation was neither an active fistfight (He was attacked by another group of people, and he responded to defend himself), and it is not clear if public policy would dictate that consent or the mistake of fact with respect to consent be unavailable in this case. It would be entirely unjust if a person responding to a brutal attack is the one who is charged with assault, and cannot argue mistake of fact w.r.t. consent, while the instigators of the violence are used as witnesses against him. This is clearly not what Jobidon envisaged when it talked about consent being vitiated. Mistake of fact w.r.t. consent should be very much a live issue in our case.

In the above case (R. v. Nash [1996] O.J. No. 4239), the judge finds that Jobidon did not eliminate consent as a defence in cases of assault simpliciter 2. According to Jobidon, the level of bodily harm that must be suffered, before consent will be ineffective as a defence, is “bodily harm” as defined by s. 267(2) of the Criminal Code. 3. The altercation, in the case at bar, is not of such a nature that public policy should proscribe the defence of consent.

Ultimately, Jobidon is a case about public policy. The court needs to consider whether public policy mandates that a victim of an assault by a group of men be the target of the criminal sanction. Other cases have cited Jobidon and discussed public policy reasons for finding the accused guilty or not guilty.

QUESTION: WHAT IF YOU consent to a fight and cause bodily harm but did not intend to do so? The law is less clear. Supreme Court cases after Jobidon suggest that bodily harm must be intended and caused. English law suggests that bodily harm must be intended or caused.

R. v. Amos [1998] O.J. No. 3047

1 THE COURT (endorsement):– The policy considerations and legal principles which inform the reasoning of the Supreme Court of Canada in R. v. Jobidon (1991), 66 C.C.C. (3d) 454 and this court’s decision in R. v. Welch (1995), 101 C.C.C. (3d) 216 have no application to the case at hand.

2 In Welch, Griffiths J.A. stated at p. 238 that, “the message delivered by the majority in Jobidon is that the victim cannot consent to the infliction of bodily harm upon himself or herself, as defined by s. 267(2) of the Code, unless the accused is acting in the course of a generally approved social purpose when inflicting the harm.” Griffiths J.A. went on to observe at p. 239 that — “[A]lthough the law must recognize individual freedom and autonomy, when the activity in question involves pursuing sexual gratification by deliberately inflicting pain upon another that gives rise to bodily harm, the personal interest of the individuals involved must yield to the more compelling societal interests which are challenged by such behaviour.”

3 In Welch, the court was concerned with sado-masochistic sexual activity involving the deliberate infliction of pain and injury, conduct which the court described as being “inherently degrading and dehumanizing.” The same cannot be said about the sexual conduct engaged in by the appellant. There is no suggestion in the evidence that the appellant deliberately inflicted injury or pain to the complainant. Moreover, it cannot be said that anal intercourse is inherently degrading and dehumanizing or that it constitutes socially unacceptable conduct, particularly in view of s. 159(2) of the Criminal Code which excepts from criminal liability anal intercourse between consenting adults in private.

4 It follows, in our view, that the trial judge erred in concluding that the resulting bodily harm to the complainant rendered irrelevant the presence or absence of consent on her part. Given the trial judge’s finding that the Crown had failed to prove lack of consent beyond a reasonable doubt, in the particular circumstances of this case, the conviction cannot stand.

R. v. Bruce [1995] B.C.J. No. 212

The Jobidon case on its facts applied to the vitiation in law of apparent consent in fact where the force was intentionally applied in the course of a fist fight or brawl and the force was such as was intended to cause and did cause serious hurt or non-trivial bodily harm. Counsel for the appellant in this appeal argued the very same standard of public policy vitiation of consent as is derived from the facts of the Jobidon case should be applied in cases of family altercations. However, I do not think that the same standard that applies to brawls and fist fights between grown men should apply to domestic altercations between a man and a woman. In the public interest I think that the public policy discussed in Jobidon and which underlies the decision in that case must take a stricter view of the level of applied force which should vitiate apparent consent as a matter of law in domestic altercations than it does in brawls and fist fights. In my opinion, the intentional application of sufficient force as to be capable of causing an injury that is more than trivial should operate to vitiate apparent consent in a domestic altercation between a man and a woman.

04 March

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Admissibility of 911 recordings

Posted by Rory

in 911 admissability, admissability

911 Recordings

Hearsay is presumtively inadmissible. 911 tapes are generally admissible because they fall under the res gestae exception. Alternatively, 911 tapes may also be admitted because they meet the necessity and reliability requirements under the principled approach. We can use both res gestae and the principled approach to question the admissibility of the 911 tapes.

Res Gestae:

R v Sylvain 2014 ABCA 153

“The starting point is this. As a general principle, res gestae statements are admissible as an exception to the hearsay rule: R v Khan (1988), 42 CCC (3d) 197, 27 OAC 142 at para 21 (Ont CA) [Khan]; R v Ratten, [1972] AC 378 at 389-391 (PC). Res gestae as a category has been criticized as being an unhelpful generality that actually encompasses several discrete exceptions to the hearsay rule: David M. Paciocco & Lee Stuesser, The Law of Evidence, 6th ed (Toronto: Irwin Law, 2011) [Paciocco and Stuesser] at 173. That said, the particular exception involved here relates to “excited utterances” as explained by Paciocco and Stuesser, supra at 177:

A statement relating to a startling event or condition may be admitted to prove the truth of its contents if it is made while the declarant is under the stress of excitement caused by the event or condition.

[31] The rationale for admitting a statement in this category for the truth of its contents is that the stress or pressure under which the statement was made can be said to safely discount the possibility of concoction: see R v Klippenstein (1981), 26 AR 568 at para 17, 57 CCC (2d) 393 (Alta CA); R v Clark (1983), 42 OR (2d) 609 at 623, 7 CCC (3d) 46 (Ont CA); R v Slugoski (1985), 17 CCC (3d) 212 at 227, 43 CR (3d) 369 (BCCA). To avoid the prospect of fabrication, the statement should be reasonably contemporaneous with the alleged occurrence. However, exact contemporaneity with the event is not required: Clark, supra at 623; Khan, supra at para 25; R v Dakin (1995), 80 OAC 253 at para 20, 1995 CarswellOnt 4827 (CA).

[32] The excited utterances exception under the common law is also consistent with the principled exception to the hearsay rule: R v Mackenzie, 2011 ONSC 6770 at para 10, 2011 CarswellOnt 12578. The reliability of “excited utterances” comes from the absence of an opportunity to concoct a story. It is true that the mere making of a 911 call does not necessarily bring that call within the “excited utterances” exception. The defence might well argue, as it did here, that the fact the call was made is equally consistent with the fact it was concocted. That is why a trial judge must assess all the relevant evidence relating to the call, including the content, timing and circumstances of a 911 call, and determine whether in light of all the evidence, it properly falls within the “excited utterances” category.

R. v. DeSouza, [2012] O.J. No. 270 was a case where Ricchetti J. ruled in the course of pretrial applications, prior to the commencement of the jury trial, and importantly, on the basis of necessity, that the 911 tape was the best evidence of the state of mind of the complainant. However, he also acknowledged that there was no doubt that the statements made by the complainant during the 911 calls, being hearsay, would be inadmissible unless ruled to be spontaneous utterances or admissible under the principled approach exception to the hearsay rule. The key issue there was necessity and Ricchetti J. ruled that the statements were necessary.

[6] There are two basic requirements for a res gestae statement:

(1) there must be an occurrence or event sufficiently startling to render inoperative the normal reflective thought process of the observer, and

(2) the statement of the declarant must have been a spontaneous reaction to the occurrence or event, and not the result of reflective thought. The rationale for the exception lies in the special reliability that is provided when excitement suspends the declarant’s powers of reflection and fabrication. See McCormick on Evidence, 5th ed. (St. Paul: West Group, 1999) Vol. 2, 204.

Cases where 911 tapes were not admitted

When Prejudice exceeds probative value: For example “however, the contents of the tape and the high-end emotions, screams, and specific accusations of sexual assault that it reflects, makes clear to me that it’s very high prejudicial effect relative to what I regard as its very limited probative value cannot permit the 911 tape to be played. Perhaps the result would be different on a judge alone trial, but I have concluded that the risk of the jury giving undue weight to that recording and not just for the limited purposes for which it is sought to be admitted, but in a wider context relative to the case as a whole, means that it cannot be played in this case”. R. v. Kamal Barua, 2012 ONSC 1817

Where reliability not established:

The call here was not an emergency call. The fact that it was made to 911 is merely an accidental feature of the case. Further, the caller was not describing ongoing events – the call was made two hours and fifteen minutes after the incident had ended and two hours after the police investigation had commenced. In short, the circumstances that carried the hearsay in Chrisanthopoulos over the threshold reliability hurdle are not present here

R. v. Campbell, 2012 ONSC 6743

Concoctions:

I am also concerned there might have been a motivation for this call to achieve an

objective other than to report an assault. In this regard, it is noteworthy that Ms. Garrick

testified she and Mr. O’Connell were arguing that evening because her cat was dying and Mr.

O’Connell was not willing to spend money for its care. In cross-examination Ms. Garrick

also indicated that when she made the call, she wanted Mr. O’Connell out of the house. R. v. O’Connell, 2007 ONCJ 536

Motive to fabricate:

The 911 call was inadmissible. The 911 call was made 16 minutes after the offence. In addition, the evidence established that Mowatt acted deliberately and made the call because she was angry at Harbin. Furthermore, there was no oath or warning with respect to the statement and Mowatt had motive to fabricate when she placed the call. Therefore, the telephone call was not made as part of the res gestae and did not meet the test of reliability- R. v. Harbin

[2008] O.J. No. 2158

This would be the Crown’s only evidence against the accused. There is nothing else. The basis for admissibility is said to be that the complainant’s 911 call is a res gestae (excited or spontaneous utterance) statement, or alternatively that it constitutes an exception to the hearsay rule as being necessary and reliable. The defence opposes the admission of this evidence, adding that in the particular circumstances of this case, the probative value of this evidence, even if admissible, would be outweighed by its prejudicial effect. [5] I agree with the defence position that this evidence should not be admitted. First, I do not consider the 911 call to constitute a res gestae statement. Second, while the complainant’s statements to the 911 operator are necessary to the Crown’s case since the witness has no memory of making the 911 call, and denies that she was assaulted by the accused, they are manifestly unreliable; thus they are inadmissible as an exception to the hearsay rule. Finally, I would decline to admit the 911 call for a third reason: it would cause prejudice to the accused and the trial process; the prejudicial effect of the evidence is out of proportion to its probative value. The evidence is therefore ruled inadmissible. R. v. Grahovac, 2008 ONCJ 211

PRINCIPLED APPROACH

In R. v. Khelawon , (2006), 215 C.C.C. (3d) 161 the Supreme Court of Canada stated that where an established exception to hearsay does not apply to evidence that is sought to be adduced, it may be admissible if it is both reasonably necessary to admit the evidence and the evidence is sufficiently reliable. It is important to note that such evidence is presumptively inadmissible and that courts must find indicia of trustworthiness sufficient to displace the general exclusionary rule.

Necessity: R. v. Parrott. [2001] S.C.J. No. 4: Necessity cannot be assumed, it must be demonstrated. In this case, the court found that the

“Stereotypical assumptions about persons with disabilities, be it testimonial competency or trauma, should be avoided. The video of the complainant’s out-of-court statement could not afford evidence of any subsequent deterioration in her recollection of the events or her ability to communicate them. The trial judge having misdirected himself on the admissibility issue, his ruling must be set aside and the majority decision of the Newfoundland Court of Appeal ordering a new trial on the assault charge affirmed.”

In our case, we may question why more efforts have not been made to ensure the complainant’s presence in the court.

Reliability: The analysis here overlaps with what could be argued in challenging whether the 911 tapes on the facts properly belong to the res gestae exception. It would be useful to argue that while the 911 tapes were contemporaneous (an important part of the res gestae exception), there is a possibility that they may have been concocted….

04 March

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Right to Counsel

Posted by Rory

in Charter Rights, implemenational duties, right to counsel

Right to Counsel

Implementational Duties

In considering right to counsel, R v Street, 2016 SKPC 7, provides interesting insight into the nature of implementational duties under S 10 (b) of the Charter of Rights and Freedoms.

Facts: After being arrested for impaired driving, Street asked to speak to a lawyer by the name of McKay. The constable with her dialed the number, but did not wait for a response. He then dialed another number, and subsequently dialed Legal Aid. It was the Constable’s idea to call Legal Aid.

Analysis: Hinds J quotes R v Kreiser, 2013 SKPC 107 in explaining the nature of the duty under s 10 (b).

S 10 (b) or “the right to counsel has an information component and an implementation component. The information component requires the police to inform the detainee of the right to retain and instruct counsel without delay, and of the existence and availability of Legal Aid and duty counsel: R. v. Luong, 2000 ABCA 301.”

“The implementation component of the right to counsel is two-fold, and arises when the detainee expresses a desire to exercise the right to counsel. First, it requires the police to give the detainee a reasonable opportunity to contact counsel. Second, it requires the police to hold off on attempts to gather evidence until the detainee has had that reasonable opportunity (except, of course, in situations of urgency or danger): R. v. Luong, supra; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310.”

The judge also uses Kreiser to note that these duties are not absolute and that reasonable diligence is required by the detainee in attempting to contact counsel.

The judge finds that the interpretational duty was violated in this case. In particular, he is concerned that the “Constable pushed Ms. Street in the direction of Legal Aid as a convenient way of fulfilling the requirements of section 10 (b) of the Charter when he dialed the telephone number for Legal Aid duty counsel at 3:24 a.m.”

The judge goes on to note that “Put another way, I am of the view that he streamed Ms. Street towards Legal Aid. I find that Constable Boprai did not act diligently in facilitating the right of Ms. Street to contact her counsel of choice. He could have and should have waited more than a few minutes for a return call from Mr. McKay. I find that Constable Boprai breached his implementational duty.”

Note: In cases where a detainee does not have a lawyer, or is unable to contact the lawyer of his/her choice, it is appropriate to remind him/her of legal aid options.

17 February

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Uttering Threats

Posted by Rory

in Defences

Uttering Threats

264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

(a) to cause death or bodily harm to any person;

Elements of the Offence

Actus Reus: The actus reus is met by utterances that a reasonable person would consider a threat. In the reasonable person background factors play an important role, including the words used, the surrounding circumstances, the relationship between the parties and any other relevant factors.

R. v. Clemente [1994] S.C.J. No. 50, Actus reus is uttering threats to cause serious bodily harm,

R. v. McCraw: [1991] 3 S.C.R. 72 Reasonable person, Viewed objectively in the context of the words spoken, with regard to the person to whom they were addressed, would the words convey a threat of serious bodily harm to a reasonable person.

Armstrong: 95 C.R. (6th) 46, Reasonable Person Test would objective person consider words threat? Taking into account the words uttered by the speaker, the circumstances of the speaker, and the person to whom the words are communicated or who is the subject of the threat

Bone : [1993] M.J. No. 222, In deciding whether to infer the specific intent to instill fear in someone, the trier of fact must consider evidence of D’s intoxication, together with all the other circumstances in which the threat is uttered

Batista: For Actus reus assessment of all relevant circumstances is required, the relationship between the V and D provides context

Mens Rea: For Mens rea to be met, there needs to be a subjective intention to intimidate or words to be taken seriously. Recklessness is not appropriate, knowledge is required. But this determination is arrived at using objective factors.

Leblanc Innocently made threat is not a threat, whether D intended to carry out the threat is not material

Noble: Knowingly: Subjective intent component (words/threats must be taken seriously or intimidate), recklessness not enough

Clemente [1994] S.C.J. No. 50. The mental element is that the words were meant to intimidate or be taken seriously, this depends upon the words used, the context in which they were spoken, and the person to whom they were directed.

It is useful to look at some cases where the offence wasn’t proven.

R. v. Fischer: [1999] A.J. No. 1156

R. v. Eakin : [2002] M.J. No. 349

As I see it, even if the accused did utter some words capable of being interpreted as a threat, which he denies, and no other witness was produced to confirm that he did utter them, they were uttered at a time when the accused may have been understandably upset about the lopsided loss of his son’s team and frustrated with the complainants’ behaviour in support of the other team. It is not inconsistent with all the evidence to view that any words beyond those admitted by Eakin were nothing but outbursts of disappointment and frustrations and were not intended to be taken seriously.

Twaddle: There were many reasons why threatening words alone would not suffice. The most obvious arose from the fact that people do not always say what they mean or mean what they say. There was thus the danger of misconstruing words, especially those which were spoken, and the further danger of assuming that a person actually intended to do what he or she had threatened. It is a well-recognized trait of human kind, found even in the sober and the sane, to make rash and extravagant statements of what they intend to do in the future without intending to do any such thing or, if they had such an intent, to regret the though and abandon it before harm is done.

R. v. Lee (1988) 3 W.C.B. (2d) 203:0803 (Ont. Dist. Ct.), , the accused, during the course of a heated argument, “told the victim that he would smash his face in”. The Court held that “while the words uttered here might in some circumstances constitute a threat, they were of such gross proportions that it represented simply a series of epithets used in circumstances of anger.” (I would say that this is very similar to what happened to our client)

R. v. Payne-Binder (1991) 7 C.R. (4th) 308 (Yukon C.A.).: “The questions (sic) to ask is, did the respondent intend the words to be taken seriously? To put it another way, did the respondent intend the parties to be frightened? Bearing in mind the context in which the words were spoken, another frustrating courtroom appearance and the background dealings between the parties….The respondent was trying to convey to the court her total desperation in the inability to resolve the problems of custody and access to two children following a separation. The words were used to convey that desperation that she wanted the matter to be resolved, but not with the intention to be taken seriously or to frighten the parties that she would kill or cause them serious bodily harm.”

R. v. Kontuk [2012] N.S.J. No. 306 2012 NSSC 204

50 Having considered the words spoken, in the context of the facts found by the trial judge, I cannot say that “could break the window and haul you out if I wanted to” would constitute a threat to a reasonable person. Mr. Avery was in the vehicle and though Mr. Kontuk had initially tried the door that was the only time he did so. (Common law relation, hadn’t been invited to son’s wedding)

Seems like a threat but because of the relationship, court quite happy to rule that there was no threat. Facts matter, background matters. In the leading cases of Clemente and McCraw the facts were quite troubling.

The Clemente case is distinguishable on the facts from the case at Bar, in that there the threats towards a caseworker were uttered within the context of five days of frustration in dealing with the caseworker on getting his case before the appeal board, and in the broader context of a long-standing obsession by the accused there over a failed real estate transaction that left him penniless and onto public assistance.

R. v. McCraw, [1991] 3 S.C.R. 72 (26 September 1991) 21684. In that case the appellant had written anonymous letters to three football cheerleaders detailing various sexual acts he wished to perform on them and concluded with the threat that he would have sexual intercourse with them “even I have to rape you”

Defence

On the Actus Reus front, it is more of a losing battle. But there is still an argument to be made. Did the complainant really feel threatened by the accused? She is a relatively fragile woman who keeps saying she will beat up people, in a strange house, where she is outnumbered at least 3-1. Did the complainants really conceive of this behaviour as an actual threat against them or did they believe it, as a reasonable person would in the circumstances, that the utterances were simply epithets in circumstances of anger. I’d suggest that this is far the more likely explanation. Both sides exchanged obscenities in anger. Mrs. Atcheson was clearly upset because she thought that her son had been endangered by reckless driving, and she lashed out. Her words, if we believe the allegations of the complainant, would not be construed as threats by the reasonable person.

Temporal proximity is also a factor in our favour. The alleged threats were made right after the dangerous driving, and point to being outbursts of frustration rather than being genuine threats.

Mens Rea: Far stronger case here. There are doubts as to whether Mrs. Atcheson had the requisite intention. Important to note that recklessness is not enough, and she must have subjectively, (and not in a momentary outburst of anger), intended to intimidate or for her words to be taken seriously. There is a level of premeditation required here that is just not an appropriate fix for the facts of this case. Mrs. Atcheson was angered by dangerous driving in proximity of her toddler, and she rushed to the house of the perpetrator, saying things in anger that any mother might.

I have analyzed the actus reus and mens rea on the assumption that the allegations of the complainant are true. Credibility is another issue.

08 February

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Unreasonable Search and Seizure — ACM –Airbag Control Modules

Posted by Rory

in Charter Rights, Search Warrants

Airbag Control Modules

In R v Hamilton 2014 ONSC 447, the Court conducts an exhaustive analysis of what constitutes unreasonable search and seizure as per section 8 of the charter. The issue in this case is whether accessing the data stored on the Airbag Control Module (“ACM”) without prior judicial authorization violates s8.
The court establishes that s8 analysis consists of asking if a) there is a reasonable expectation of privacy b) the search was reasonable.
A-Reviewing the case law, the court points out that whether an expectation exists, it is necessary to look at a)The Applicant’s Subjective of Privacy and b) Is the Expectation of Privacy Objectively Reasonable in the Totality of the Circumstances?
The subjective component is not a high threshold, and it depends upon the subject matter of the search and whether the applicant had a direct interest in it. The court notes that the subject matter of the search was not the ACM as a physical object, but the date stored within in, and that the applicant had a direct interest in the data.
Whether the expectation is objectively reasonable depends on a number of questions, suggested in Edwards. The court examines these questions and finds that the expectation was objectively reasonable.
Finding that a reasonable expectation of privacy exists, the court evaluates whether the search was reasonable. The court finds that -1-The search was not authorized by law and that 3-the search itself was not reasonable. 2-The court does not address whether the law in question was itself unreasonable.
It is important to note that the court’s analysis in both establishing that there is a reasonable expectation and that the search was unreasonable acknowledges the problematic nature of the officer’s conduct. There is not a single factor that the court finds in favour of the crown in this part of the analysis. And this forms the bulk of the decision. The court spends an awful lot of time in establishing that the conduct was a breach of s8.
However, when it comes to the remedy under s24, the analysis is brief and the court is quick to establish that the administration of justice will not be brought into disrepute by including this evidence. The court says that the 1- the charter breach is not particularly serious, and that the court must take into account the conduct of the applicant that led to the charter breach. 2-The court also says that the impact on the charter protected interests of the applicant is moderate and that 3- the reliability of the evidence weights in favour of inclusion (Society’s interest in an adjudication on the merits)
Balancing the factors, the court finds in favour of including the evidence.
My thoughts: This case was enlightening purely for the huge gulf between the s8 and s24 analysis. In the s8 analysis the court seems far more cognizant of the accused’s rights, whereas s24 seems to exist solely to provide legal sanction to include evidence that infringes charter rights.

R v Shaw 2016 ONSC 658
The Appellant was convicted of failing to provide a breath sample, but appealed because the testimony consisted of evidence by adult witnesses that was not sworn or affirmed.
The judge reviews the law and finds that for adult witnesses the proper way to receive evidence is by testifying under oath or by solemn affirmation. The cases provided by the crown deal with witnesses with specific considerations for testifying. No such considerations are in operation in the facts here.
The judge notes with approval the cases cited by the Appellant. In Matheson, failure to follow strict compliance with having evidence taken under oath, the process was rejected. Similarly, in Kalkhorany, the court found that a trial procedure could not be remedied when the trial began as a summary conviction, and when the six month time period for commencing expired, the process was converted into a trial by indictment. The court found that the formality of reconstituting the court and taking a proper plea on the process had to be followed or specifically waived.
Rejecting, the crown’s assertion that this was a procedural issue, the judge quashes the conviction.

08 February

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Recollection and Demeanour Evidence

Posted by Rory

in credibility

I took these articles from Alan Gold’s February 8, 2016 weekley newsletter. assessing evidence. demenour. recollection.

Evidence based on recollection

15.An obvious difficulty which affects allegations and
     oral evidence based on recollection of events which
     occurred several years ago is the unreliability of human
     memory.

     16.While everyone knows that memory is fallible, I do not
     believe that the legal system has sufficiently absorbed
     the lessons of a century of psychological research into
     the nature of memory and the unreliability of eyewitness
     testimony. One of the most important lessons of such
     research is that in everyday life we are not aware of the
     extent to which our own and other people’s memories are
     unreliable and believe our memories to be more faithful
     than they are. Two common (and related) errors are to
     suppose: (1) that the stronger and more vivid is our
     feeling or experience of recollection, the more likely
     the recollection is to be accurate; and (2) that the more
     confident another person is in their recollection, the
     more likely their recollection is to be accurate.

     17.Underlying both these errors is a faulty model of
     memory as a mental record which is fixed at the time of
     experience of an event and then fades (more or less
     slowly) over time. In fact, psychological research has
     demonstrated that memories are fluid and malleable, being
     constantly rewritten whenever they are retrieved. This is
     true even of so-called ‘flashbulb’ memories, that is
     memories of experiencing or learning of a particularly
     shocking or traumatic event. (The very description
     ‘flashbulb’ memory is in fact misleading, reflecting as
     it does the misconception that memory operates like a
     camera or other device that makes a fixed record of an
     experience.) External information can intrude into a
     witness’s memory, as can his or her own thoughts and
     beliefs, and both can cause dramatic changes in
     recollection. Events can come to be recalled as memories
     which did not happen at all or which happened to someone
     else (referred to in the literature as a failure of
     source memory).

     18.Memory is especially unreliable when it comes to
     recalling past beliefs. Our memories of past beliefs are
     revised to make them more consistent with our present
     beliefs. Studies have also shown that memory is
     particularly vulnerable to interference and alteration
     when a person is presented with new information or
     suggestions about an event in circumstances where his or
     her memory of it is already weak due to the passage of
     time.

     19.The process of civil litigation itself subjects the
     memories of witnesses to powerful biases. The nature of
     litigation is such that witnesses often have a stake in a
     particular version of events. This is obvious where the
     witness is a party or has a tie of loyalty (such as an
     employment relationship) to a party to the proceedings.
     Other, more subtle influences include allegiances created
     by the process of preparing a witness statement and of
     coming to court to give evidence for one side in the
     dispute. A desire to assist, or at least not to
     prejudice, the party who has called the witness or that
     party’s lawyers, as well as a natural desire to give a
     good impression in a public forum, can be significant
     motivating forces.

     20.Considerable interference with memory is also
     introduced in civil litigation by the procedure of
     preparing for trial. A witness is asked to make a
     statement, often (as in the present case) when a long
     time has already elapsed since the relevant events. The
     statement is usually drafted for the witness by a lawyer
     who is inevitably conscious of the significance for the
     issues in the case of what the witness does nor does not
     say. The statement is made after the witness’s memory has
     been “refreshed” by reading documents. The documents
     considered often include statements of case and other
     argumentative material as well as documents which the
     witness did not see at the time or which came into
     existence after the events which he or she is being asked
     to recall. The statement may go through several
     iterations before it is finalised. Then, usually months
     later, the witness will be asked to re-read his or her
     statement and review documents again before giving
     evidence in court. The effect of this process is to
     establish in the mind of the witness the matters recorded
     in his or her own statement and other written material,
     whether they be true or false, and to cause the witness’s
     memory of events to be based increasingly on this
     material and later interpretations of it rather than on
     the original experience of the events.

     21.It is not uncommon (and the present case was no
     exception) for witnesses to be asked in cross-examination
     if they understand the difference between recollection
     and reconstruction or whether their evidence is a genuine
     recollection or a reconstruction of events. Such
     questions are misguided in at least two ways. First, they
     erroneously presuppose that there is a clear distinction
     between recollection and reconstruction, when all
     remembering of distant events involves reconstructive
     processes. Second, such questions disregard the fact that
    such processes are largely unconscious and that the
     strength, vividness and apparent authenticity of memories
     is not a reliable measure of their truth.

     22.In the light of these considerations, the best
     approach for a judge to adopt in the trial of a
     commercial case is, in my view, to place little if any
     reliance at all on witnesses’ recollections of what was
     said in meetings and conversations, and to base factual
     findings on inferences drawn from the documentary
     evidence and known or probable facts. This does not mean
     that oral testimony serves no useful purpose – though its
     utility is often disproportionate to its length. But its
     value lies largely, as I see it, in the opportunity which
     cross-examination affords to subject the documentary
     record to critical scrutiny and to gauge the personality,
     motivations and working practices of a witness, rather
     than in testimony of what the witness recalls of
     particular conversations and events. Above all, it is
     important to avoid the fallacy of supposing that, because
     a witness has confidence in his or her recollection and
     is honest, evidence based on that recollection provides
     any reliable guide to the truth.

     23.It is in this way that I have approached the evidence
     in the present case.

— Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor, [2013]
EWHC 3560 (Comm); URL:
http://www.bailii.org/ew/cases/EWHC/Comm/2013/3560.html

Demeanour evidence

    “44 This court has repeatedly cautioned against giving
     undue weight to demeanour evidence because of its
     fallibility as a predictor of the accuracy of a witness’s
     testimony: Law Society of Upper Canada v. Neinstein,
2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v. Rhayel,
2015 ONCA 377, 324 C.C.C. (3d) 362. As I indicated in Rhayel,
     at para. 85, “[i]t is now acknowledged that demeanour is
     of limited value because it can be affected by many
     factors including the culture of the witness,
     stereotypical attitudes, and the artificiality of and
     pressures associated with a courtroom.”

          45 Although the law is well settled that a trial
          judge is entitled to consider demeanour in assessing
          the credibility of witnesses, reliance on demeanour
          must be approached cautiously: see R. v. S. (N.),
          2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 18 and
          26. Of significance in this case is the further
          principle that a witness’s demeanour cannot become
          the exclusive determinant of his or her credibility
          or of the reliability of his or her evidence: R. v.
          A. (A.), 2015 ONCA 558, 327 C.C.C. (3d) 377, at
          para. 131; R. v. Norman (1993), 16 O.R. (3d) 295
          (C.A.), at pp. 313-14.

          46 It is of note that the trial judge started his
          assessment of the appellant’s credibility by
          expressing his concern about how the appellant
          testified:

               It was my impression that the [appellant]
               testified in a careful fashion which lacked any
               spontaneity. He appeared to me to be a witness
               who was prepared and aware of what his evidence
               should be to raise a reasonable doubt as
               opposed to a retired teacher wrongfully accused
               of fondling a young male 20 years ago.

          47 This paragraph troubles me for two reasons.

          48 First, the trial judge found the appellant’s
          credibility was diminished because he testified in a
          manner that was too careful. The problem I have with
          this is that the trial judge had no reference point.
          He did not know how the appellant normally expressed
          himself. Moreover, the appellant’s “careful fashion”
          of testifying may relate to such factors as the
          unfamiliar atmosphere of the courtroom, the
          artificiality of the circumstances under which the
          appellant was being asked to provide information and
          the pressure he was under given what was at stake.

          49 Second, I am concerned by the trial judge’s
          finding that the appellant testified more like
          someone trying to raise a reasonable doubt than
          someone wrongfully accused of sexually assaulting a
          student. The trial judge provided no insight as to
          how he arrived at that conclusion, particularly how
          the differences between the two types of testimony
          might manifest themselves. General assertions such
          as this are, with respect, not only unhelpful but
          also defy appellate review.”

— R. v. Hemsworth [2016] O.J. No. 505 (C.A.)

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