Issue
#133
January
26, 2001
Over two years after his appeal was argued in the Ontario Court of Appeal, Christopher Robert Taylor must have been relieved to hear this week that his conviction for possession of stolen furniture was overturned. The cause of victory? A charge to the jury that appeared virtually identical to the instruction given in Starr (2000), 147 C.C.C. (3d) 449 (S.C.C.).
In an otherwise unimpeachable charge to the jury, Mr. Justice Salhany defined reasonable doubt in R. v. Taylor, (released January 22, 2001),as follows:
What do we mean by reasonable doubt? While we all know that it is rarely possible to prove anything with absolute certainty and so the burden on the Crown is only to prove guilt beyond a reasonable doubt. When I speak of reasonable doubt, I use those words in their ordinary, natural meaning. It is not a legal term having any special connotation. A reasonable doubt is an honest doubt. It is a fair doubt and it is based upon reason and common sense. It is a real doubt. It is not an imaginary or frivolous doubt. So what you must ask yourself is this, has the Crown proved this case beyond a reasonable doubt. If, after you have considered all of the evidence, you have a reasonable doubt then you must acquit. However, if on all the evidence you are satisfied beyond a reasonable doubt that the accused is guilty, then you must convict the accused. It is as simple as that.
Despite a valiant attempt to take the twinkle out of Starr by the Crown Law Office (Criminal), the Court of Appeal was not tempted by the argument that when read with Russell, Beauchamp and Avetysan, the impact of Starr on reasonable doubt was diminished. Readers may remember that in Russell [2000] S.C.J. 55 (from the Alberta Court of Appeal), Avetysan [2000] S.C.J. 56 (from the Newfoundland C.A.), and Beauchamp [2000] S.C.J. 54 (from the Quebec Court of Appeal), the Supreme Court noted that appellate review of a charge on reasonable doubt is in a “transition phase”, and reiterated that there did not need to be slavish compliance with Starr. In doing so, the Supreme Court left lots of wiggle room for provincial appellate courts to backslide on the full implications of Starr, and to avoid the effect that it might have on appellate review of many decisions in the system. In fact, the Attorney General’s office in Ontario was so relieved by Russell, Beauchamp and Avetysan that it withdrew its motion before the Supreme Court to have Starr declared “prospective” only.
However, it appears that Starr is by no means extinguished in Ontario. Credit should be given to the Ontario Court of Appeal for refusing to take the easy way out. In Taylor, the Court clearly recognized the wiggle room created by the Supreme Court of Canada, but refused to slide into that corner. Instead, it acknowledged that it was unable to distinguish the charge from Starr and noted that the trial judge’s instructions “failed to locate the reasonable doubt standard above the probability standard”. To imply that probability of guilt or something close to it would suffice for a conviction was a clear error in law, and in the circumstances of this trial, the flaw was fatal and could not be cured by the proviso. The Court firmly quashed the conviction, giving hope to future appellants (in Ontario at least) that Starr shines on still.
The Ontario Court of Appeal has overturned a stay of proceedings imposed by Justice Borkovich necessitated by lost evidence in the case of R. v. John Guy Bradford, released January 19, 2000. Although the appeal court accepted the trial judge’s conclusion that the statement of the complainant was lost by the state through unacceptable negligence, the court found that Justice Borkovich erred in his conclusion that the defence was severely prejudiced as a result. A new trial was ordered.
The Court of Appeal focused on the availability of other evidence to minimize the prejudice caused by the loss of the complainant’s signed statement to the police. In this case, the complainant gave an oral statement to a police officer in 1984 regarding allegations of sexual assault between 1981 and 1984 by the accused. The oral statement was reflected in an occurrence report prepared by the same officer within one or two hours later. He then followed up the investigation a few days later by asking the complainant questions and recording her answers, and then asking her to sign it. The officer also showed the statement to the accused and recorded his response to it. When the Crown reviewed the brief and decided not to proceed with the matter, the signed statement was lost. This was not discovered until 1991, when the complainant went to the police, gave a further statement and requested that charges be laid. In the interim, she had spoken to a therapist and made some further allegations, which statement was available to the defence at trial. The complainant also testified under oath at a hearing before the College of Physicians and Surgeons, as well as at the preliminary inquiry in the charge before the court. The Court of Appeal found that the trial judge failed to consider the issue of the other five statements made by the complainant when assessing the prejudice caused by loss of the signed statement. Speaking on behalf of the Court, Justice Weiler also noted that the trial judge did not consider the fact that the accused actually had an opportunity to see and respond to the lost evidence when the officer questioned him about it in 1984.
Justice Weiler analysed the issue of prejudice by focusing on a number of factors drawn from the case law. Her factors are listed in the table below in the left column; her analysis on the facts of this case is noted briefly at the right. She concluded this was not one of those “clearest of cases” in which a stay of proceedings was necessary in the interests of justice.
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Factors from case law |
Application to this case |
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general consideration of all the surrounding background facts and circumstances of the complainant’s evidence: R. v. H. A., [1998] O.J. No. 4351 at para. 13 |
some prejudice: oral statement was the first statement to police |
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emotional or psychological status of the complainant at the time the allegations were made: H. A.; R. v. La, [1997] 2 S.C.R.680 |
calm |
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the time when the complaints were made in
relation to when the allegation occurred, i.e. before or after therapy: H.
A. |
had not seen a therapist |
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whether the investigating officers who took the statement were available for questioning: B. (F.C.) (2000), 142 C.C.C. (3d) 540 at p.553 |
investigating officer available |
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whether the complainant made other statement prior to trial that the defence can use to attack her credibility: La, at p.111 |
5 other statements: occurrence report at time; to therapist in 1987; to police in 1991; to College of Physicians in 1995 and at preliminary inquiry |
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whether the Crown concedes that proposed substitute evidence is a statement of the complainant and may be sued for the purposes of cross-examination of the complainant: B. (F.C.), at p.554 |
Crown conceded occurrence report could be used to cross-examine complainant in this case |
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whether the statements that do exist appear to contain the same amount of detail as the lost statement: La, at p.111; B. (F.C.). |
officer testified the signed statement had no greater detail than the oral statement and was likely the same as the occurrence report |
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the extent of the complainant’s present ability to recall the contents of the earlier statements: H. A. at para. 13 |
some prejudice occasioned by the fact that the complainant could not recall what she told police |
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the complainant’s present ability to recall the details surrounding the various alleged incidents of abuse: H. A.; R. v. Daye, [1999] O.J. No. 1994 at para. 4 |
some details not recalled but signed statement not likely to have added to details in this case |
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any apparent or potential inconsistencies in the complainant’s trial testimony or between her other statements and her evidence at the preliminary inquiry: H. A.; R. v. Mattingly (1995), 40 C.R. (4th) 376 |
lack of detail in initial statements established for purpose of cross-examination; sufficient other material upon which to test credibility |
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whether the accused was made aware of the contents of the lost evidence before its destruction or disappearance: B. (F.C.) at p.554 |
accused reviewed signed statement before it was lost |
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whether the Crown gave any undertaking to the accused at the time that matters would not proceed with the result that the accused did not retain his own records: B. (F.C.) at p. 550 |
no undertaking |
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what other witnesses had to say at the time in support of contradiction of the complainant’s allegations: B. (F.C.) at p.553; Daye at para. 2 |
statement of witness taken in 1984 was available and was used to cross-examine her |
* * * *
POLICE INDUCED COMMISSION OF OFFENCE, COURT OF APPEAL RULES IN FINDING ENTRAPMENT
By Xenia Praestos
In R. v. J.S. (Jan. 19, 2001, C31613), the Court of Appeal for Ontario ruled that the pressure police exerted upon a young person to enter into a drug transaction constituted entrapment. The Court also drew the distinction between inducement and room left for the formation of independent criminal intent.
This was an appeal from the conviction of a 14 year-old Marilyn Manson concert-goer who, after being approached by undercover officers repeatedly requesting and encouraging the youth to sell them drugs, sold $10 worth of marijuana. The youth was convicted at trial because the trial judge found that despite the conduct of the police, the accused was not deprived of the opportunity to independently formulate criminal intent.
The Court cited the Supreme Court of Canada ruling in R. v. Mack (1988), 44 C.C.C. (3d) 513 which set out the two branches to the entrapment test: whether authorities acted on a reasonable suspicion that drug trafficking was occurring when they targeted the individual or area or, presupposing the police had a reasonable suspicion to target the area or individual, whether the police went beyond simply providing an opportunity to commit the crime and actually induced the commission of an offence. The Court did not equate the second branch of the test with the requirement of the evidence “leaving no room for the formation of independent criminal intent, as stated in R. v. Amato (1982), 69 C.C.C. (2d) 31. The second branch would be met when the police go beyond providing an opportunity to commit the crime and induce the commission of an offence.
The Court ultimately found that the appellant succeeded on the second branch of the test and that entrapment was made out. Thus, the trial judge erred in not concluding that there had been an abuse of process and in refusing to grant a stay of proceedings. A stay of proceedings was entered.
* * * *
In R. v. Peterpaul (January
19, 2001, C33098), the Ontario Court
of Appeal held that the Appellant was entitled to a new trial based upon the
cumulative effect of three errors made by the trial judge in charging the
jury. One of the errors worth noting
was the use of an out-of-court statement made by the complainant shortly after
the incident.
The case involved a
sexual assault which allegedly took place in 1991. The complainant and several of her friends had attended the
Appellant’s house for a party. At one
point the complainant went into the a bedroom and lay down on the bed because
she had had too much to drink. While
she lay on the bed, she alleged to have been sexually assaulted by the
Appellant. She did not report this to
the police until February, 1997, due in part to her experiencing flashbacks.
At trial, the complainant
testified that at the time of the incident, she pushed the Appellant off of her
and then watched him zip up his pants.
Although the bedroom was dark, she said she could see his face. The complainant’s friend testified that the
morning after the incident, she heard the complainant shriek and saw her pacing
up and down in the hallway. She seemed
frantic and was saying “Oka fucked me.”
It should be noted that the complainant knew the Appellant as Oka. The complainant’s friend also provided
details of her conversation with the complainant that morning relating to the
alleged assault. The complainant
however did not recall this conversation she had with her friend.
The Appellant argued that
the complainant’s statement “Oka fucked me” was properly admissible as part of
the narrative. However, it was argued
that the details of the assault related by the friend were not properly
admissible. Reliance was placed upon
the decision of R. v. A.
(J.) (1996), 112 C.C.C. (3d) 528 (Ont. C.A.). The Crown argued that the statement should be admitted for the
truth of its contents on two grounds: as an out-of-court statement of
identification, and as a spontaneous utterance. With respect to this latter ground, the Crown submitted that the
statement was necessary because the complainant that she did not remember the
conversation and that the friend’s statement itself was reliable because it was
a spontaneous utterance.
The Court of Appeal
ultimately agreed with the Appellant’s argument. First, with respect to admitting the statement for the purposes
of identification, the Court did not find this to be a “classic” identification
case. The complainant already knew the
Appellant and her earlier statement identifying the Appellant as the assailant
added nothing to her in-court identification.
Therefore, the case of R. v. Tat (1997), 117 C.C.C. (3d) 481 (Ont.
C.A.), which dealt with out-of-court statements of identification being
admitted as substantive evidence, was of no assistance to the Crown, given the
circumstances of this particular case.
With respect to whether
the statement constituted a spontaneous utterance, the Court was reluctant to
make any final determination, given the lack of an evidentiary foundation. No inquiry was held at trial to determine
the necessity or reliability of the statement.
Therefore, the Court was not in a position to sanction its admission on
appeal for the truth of its contents.
However, it appears that the argument advanced by the Crown may prevail
in other similar cases where there has been a proper inquiry into the requirements
of necessity and reliability.