The Defence Toolkit – February 19, 2022

This week’s top three summaries: R v Ouellette, 2022 ABCA 40: s.21 #party by #words alone, R v Whitehead, 2022 SKCA 19: #similar fact diff’t offence type, and R v George, 2022 NSSC 42: #bare recognition ID.

R v Ouellette, 2022 ABCA 40

[February 3, 2022] Party Liability by Words Alone: Where there is Equivocation by the Declarant [Barbara Lea Veldhuis, Jo’Anne Strekaf, and Anne Kirker JJ.A.]

AUTHOR’S NOTE: A person can be a party to an offence in various ways: encouraging the principle, assisting the principle, or engaging in a course of conduct together with the principle all with knowledge of the intended offence. While there is more to it than those requirements, the issue often comes down to some act or utterance that propelled the offending forwards in some manner. Here, the only possible liability rested in words reported after the fact by the accused to an undercover police officer about his prior discussions with the murderer. As his subsequently reported utterances were equivocal on the issue of abetting, a conviction could not be entered on the test in a circumstantial case. That conclusion had to be only reasonable conclusion available on the evidence.

Facts – Delaire’s Appeal

[119] As set out above, Delaire was convicted of manslaughter by abetting Ouellette to shoot Reitberger. The basis for the conviction was recorded conversations between Delaire and a police agent, made some six or eight months after the shooting, regarding conversations Delaire was alleged to have had with Ouellette before the shooting.

[122] Next, the trial judge found the recorded statements established the following facts, which were important to the analysis: …

(2) Delaire was aware of Ouellette’s violent past, including occasions where Ouellette had threatened to use or demonstrated a willingness to use weapons, in particular, (i) an occasion when Ouellette threatened to put a butter knife in a fellow’s neck in an Earl’s Restaurant. Exhibit 64, page 103 and page 104. And (ii) another occasion when Ouellette was going to hit Colin Reitberger in the head with a sturdy piece of gym equipment. Exhibit 62, tab 1, page 190.

(3) When Ouellette shot up some houses or went to a house, knocked on the door and asked the parents if so-and-so was home and then started running through the house, looking for that person. Exhibit 64, page 109.

(4) When Delaire and Alistair Chapman, who seems to be the head of some sort of criminal group with Delaire, agreeing that Ouellette is crazy and not a guy you want pissed with you. Exhibit 62, tab 2, page 129.

(5) With particular regard to Reitberger, Ouellette had expressed a desire for a month to meet up with Reitberger and shoot him in the head. Exhibit 62, tab 4 3, page 52.

[123] … whatever the motivation was, the trial judge was satisfied that Ouellette was talking openly about shooting Reitberger.

[124] The trial judge next highlighted the statements from scenario 6:

According to Delaire, he tried to dissuade Ouellette from shooting and killing Reitberger, but he told Ouellette, “If you’re going to do it, do it smart”. …

Delaire then told Tutt what he had told Ouellette. See Exhibit 64, page 112, line 16 to page 113, line 1. “Even Christian … I was, like, “Dude, don’t do it”. I was like, “If you’re gonna do it”, I was like, “Be smart about it”. Like I was like, “Don’t just go fuckin’ message him and be like let’s meet up, and fuckin’ shoot him. Like, be smart about it. Do your investigation. Find out where he lives. Like guy gets to his condo or whatever, like, just pop him in his car. Like, do it. Smart”.

[125] Missing from the trial judge’s excerpt of the exchange are Delaire’s concluding words “But of course not though”.

[126] Finally, the trial judge’s analysis of the actus rea and mens rea was as follows: …

The Crown says that the evidence shows that Delaire knew that Ouellette wanted to shoot and kill Reitberger, and Delaire then provided his advice on how best to do that to avoid detection. In the Crown’s submission, Delaire’s words encouraged or abetted his good friend Ouellette in committing the subsequent shooting of Reitberger in the head, which, prior to Delaire’s comments, had not yet occurred, and to be conducted in such a manner as might better achieve Ouellette getting away with it. I agree with the Crown. But I also find that by offering his words of encouragement, Delaire did so with the intention of abetting Ouellette in the intentional shooting of Reitberger in the head. See Regina v Briscoe, paragraphs 14 to 18. Delaire knew that was going to happen. The only questions were when and where. Delaire tried his best to encourage that those choices would not automatically lead to Ouellette’s arrest.

Delaire’s Argument on Appeal

[129] … taking the Crown’s evidence at its highest, two reasonable inferences can be drawn from the complete recorded interactions: one exculpatory and consistent with innocence, one inculpatory and consistent with guilt. Given the guidance from Villaroman regarding drawing inferences, the conviction for manslaughter as a party cannot stand. As a result, and for the reasons set out below, we set aside the conviction and enter an acquittal.

Standard of Review

[130] The Crown did not tender any direct evidence of an actual conversation between Delaire and Ouellette underlying the abetting charge. It presented circumstantial evidence consisting of the recorded conversations between Delaire and the police agent. From this, the Crown alleged the trial judge could draw inferences from the words spoken and the circumstances of their relationship to establish the actus reus and mens rea of abetting.

[131] Villaroman at paragraphs 35-38 sets out the governing law about drawing inferences from circumstantial evidence:

….. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

The Law of Abetting

[133] Although the liability of principal offenders and parties is the same, the essential elements of aiding and abetting are different, with parties having a distinct actus reus and mens rea: Regina v Briscoe, 2010 SCC 13 at para 13. The actus reus for abetting has been defined as “encouraging, instigating, promoting or procuring the crime to be committed”: R v Greyeyes, [1997] 2 SCR 825, 1997 CanLII 313 at para 26. Or put another way, “doing something or omitting to do something that encourages the principal to commit the offence”: R v Cowan, 2021 SCC 45 at para 32.

[135] It has been consistently held that mere presence at the scene of an offence, or passive acquiescence to the commission of an offence, is insufficient to establish liability under s. 21: Dunlop and Sylvester v The Queen, 1979 CanLII 20 (SCC), [1979] 2 SCR 881 at 891, 99 DLR (3d) 301. There must be something more in order for liability to be established. In his text, V. Gordon Rose, Parties to the Offence, (Toronto: Carswell, 1982) suggests at page 23 that this “something more” must be something showing the party’s desire to associate themselves with the principal’s acts.

[136] This “something more” is also explained by the fact that conduct constituting aiding or abetting is “coloured by the mental state accompanying the act”, meaning the conduct must have been for the purpose of aiding or abetting: R v Dooley, 2009 ONCA 910 at para 118, leave to appeal to SCC refused 2010 CanLII 56575 (SCC).

[137] … As such, there must be some factual nexus between the conduct and the offence, but it does not need to be causative. For example, if an individual were to shout words of encouragement from such a distance that the principal could not hear them, they would not be guilty of abetting the principal: Dooley at para 120.

Words alone as the basis of criminal liability

[139] Although abetting can be established both by actions or words, this appeal concerns abetting through the use of words alone. …

[140] In R v Black, 1970 CanLII 1022, [1970] 4 CCC 251 (BC CA), Black and a number of people stood by watching, laughing and yelling while a victim was confined and assaulted by multiple others. Black and the other spectators were convicted of abetting the offences against the victim. On appeal, the British Columbia Court of Appeal accepted that the spectators’ laughing and yelling constituted encouragement, and further, their presence at the scene prevented the escape of the victim.

[143] In R v Monkman, Tavares and Ponce, 2010 MBQB 72, upheld on appeal, cited as R v Ponce, 2012 MBCA 87, the trial judge accepted that a jury had found two defendants guilty of manslaughter as either aiders or abettors by relying on the words spoken by each. Neither defendant was involved in the physical act of killing the victim, but both had been in a vehicle with the principal shortly before and made statements to the effect of “we’re going to fix him up” or “get it done and we’ll fix you up”. The trial judge accepted the jury must have considered those words as being words of encouragement to the principal offender to commit the offence.

[146] Although the above cases demonstrate how words may create liability as abetting, many of these cases are distinguishable from the present appeal. In both Black and Poitras it was not solely the abettor’s words that made them liable. In Black, the spectators’ presence at the scene was held to have prevented the victim from escaping, and in Poitras, Poitras had broken into a home before becoming involved in an altercation with the victim. Neither of these circumstances are present in this appeal.

[147] Additionally, the level of involvement of Delaire was unlike the involvement of the abettors in RMF and Cowan. In RMFthe abettor provided real time instructions on how to commit the offence. Similarly, in Cowanthe instructions given were described as an “explicit” description of how to complete a robbery.

[148] The general principle, if any, that may be gleaned from the above cases is that there is no threshold for what types of words might constitute abetting; it is the context and circumstances of the discussion that is most important. As such, the analysis will be highly fact specific.

The Trial Judge Erred in Finding Abetting

[158] When examining words as the basis of establishing abetting, there does not appear to be a threshold of what type of words will constitute encouragement. Rather, the caselaw seems to demonstrate that the context of the situation is most significant for determining liability. A wide range of words may establish liability. …

[162] The first interaction, scenario 6, was relied on by the trial judge, although as noted above he omitted a statement at the end from the excerpt, which in our view was important to the assessment of not only the actus reus but also the mens rea:  …

… I was like, ‘dude, don’t do it.’ … I said, ‘don’t do it, bro.’

[163] The second interaction, scenario 9, was not included at all in the trial judge’s analysis, and also included several statements by Delaire that Ouellette should not shoot Reitberger:

 … I, I actually told Christian not to do it. ‘Cause Christian went over and told everyone that he’s gonna shoot this guy in the fuckin’ head. And then everyone like everyone knew before it happened, right? …

… I was like, I was like, ‘you talked about it way too much. You can’t do it.’ …

[164]Nowhere in the trial judge’s reasoning does he address the equivocal nature of the interactions or the number of times that Delaire said he told Ouellette not to do it.

[165] These statements lead to two reasonable inferences depending on which phrases of the interactions are highlighted. The first is the Crown inference that when Delaire’s effort to dissuade Ouellette from killing Reitberger failed, his friendship for Ouellette took over, and he then advised and urged Ouellette to conduct himself in a more clandestine and secret fashion, unlike Ouellette’s usual course of obvious and brazen conduct. This is the inference accepted by the trial judge and is based on emphasizing the middle statements of scenario 6 where Delaire talks about being “smart about it” and gives some suggestions about how to get away with the shooting.

[166] The second is the inference that Delaire was dissuading his friend from shooting Reitberger based on how frequently and openly Ouellette had been speaking about shooting Reitberger to other people and that he was going to get caught. This inference is based on emphasizing the statements at the beginning and end of scenario 6 and all of scenario 9.

[167] Both of these are reasonable inferences from the statements as they are supported by the factual findings of the trial judge regarding the context in which they were made, including the parties’ friendship, Delaire’s knowledge that Ouellette wanted to shoot Reitberger, and Delaire’s knowledge about Ouellette’s past behaviour and violent tendencies.

[168] What cannot be determined because there were no factual findings made, in large part because the audio recording was of Delaire’s recount of his conversation with Ouellette to the police agent, and was not the actual conversation, was anything related to Delaire’s tone, or whether he gave actual emphasis to any part of the speech. Delaire essentially told the police agent a story about his interactions with Ouellette. His pattern of speech and what he may have emphasized months after the shooting to the police agent, after Ouellette had been arrested, after Delaire was questioned by police about his involvement, and at a time when Delaire believed that he was being followed by the police, may or may not have been how the words were expressed at the time.

[169] Since there is clearly another reasonable inference available from the evidence other than guilt, the Crown has not met its burden of proof and the conviction cannot stand.

R v Whitehead, 2021 SKCA 19

[February 10, 2021] Similar Fact Evidence: Evidence of a Different Assault as Evidence of Planning and Deliberation for Murder [Reasons by Jackson J.A., with Ryan-Froslie and Tholl JJ.A. concurring]

AUTHOR’S NOTE: Similar fact evidence is usually led for the purpose of proving identification by a signature similarity between two different crimes. Consequently, much of the similar fact case law focuses on the intricacies of identification evidence. Herein, the Crown tried to prove planning and deliberation by reference to a separate attack by the accused prior to the alleged murder. The trial judge’s conclusions were flawed ultimately by a failure to focus on the purpose the Crown was attempting to lead the evidence for. 

Introduction

[1] Following a trial by jury, Davis Whitehead was convicted of the first degree murder of Ramsay Whitehead contrary to s. 235(1) of the Criminal Code. He appeals his conviction.

[2] His appeal concerns the use of similar fact evidence to prove the necessary element of planning and deliberation required to return a verdict of first degree murder. The proposed similar fact evidence was an unproven allegation of assault causing bodily harm that had occurred earlier the same evening at a different location and on a different individual than the man who was killed.

[3] Following a voir dire, the trial judge held that the evidence of the prior assault was admissible for the purposes of allowing the Crown to argue that it was some evidence of planning and deliberation. When she weighed the probative value of the evidence with its prejudicial effect, she concluded it should be admitted. The issues on appeal concern whether the trial judge erred by so deciding.

[4] With respect, notwithstanding the deference owed to a trial judge’s admission of similar fact evidence, two errors justify this Court’s intervention. First, the trial judge committed an error in law by finding that the evidence of the prior assault was evidence that could be considered to determine whether the appellant had planned and deliberated upon the murder of the deceased. Second, the trial judge’s conclusion that the probative value of the evidence outweighed its prejudicial effect to the appellant is unreasonable. I would set aside the conviction and order a new trial.

Overview

[6] The events that I am about to describe occurred during the night of December 9, 2016. Four incidents of violence happened within an approximately two hour time period:

(a)  First incident – The appellant visited House 105. He and Ramsey Whitehead got into a fight involving fists and words. Ramsey Whitehead threw the appellant to the floor. The appellant left House 105 without his jacket.

(b)  Second incident – The appellant walked to House 608, the Garvin residence, which is 700 metres from House 105. He walked in, pushed Harriet Garvin to the ground and then said to his brother-in-law (a guest at the residence), Jamie McKay, “You should be home with your kids” or words to like effect. The appellant then took a swing at Mr. McKay and left after having been in the Garvin residence for approximately 15 seconds. Mr. McKay then discovered he had been struck with a knife. Mr. McKay needed day-patient care at a hospital and two stitches to close the wound.

(c)  Third incident – In between the Garvin residence and House 105, the appellant met Spencer Head. The appellant threatened Mr. Head with a knife, saying words to the effect of, “Do you want to fight me?” or “Are you trying to pick a fight?”

(d)  Fourth incident – Approximately 30 minutes after the second incident, the appellant returned to House 105. This time he ran or “speed-walked” straight at Ramsey Whitehead and stabbed him either two or three times. Ramsey Whitehead died almost immediately from the wounds inflicted by the stabbing.

Voir Dire on Admissibility of the Garvin Residence Evidence

[9] After the jury had been chosen, a voir dire was held to determine whether the evidence of what had happened at the Garvin residence (the McKay and Garvin assaults) was admissible as similar fact evidence to support a finding that the appellant had planned and deliberated upon the murder of the deceased. The Crown called the individuals who had been present at the Garvin residence as witnesses. This included (a) three lay witnesses, who described in some detail the nature of the stabbing, the amount of blood and the effect of the stabbing on Mr. McKay, (b) the EMS paramedic who attended at the Garvin residence and described the state of Mr. McKay, and (c) the RCMP officers who attended there and described what they saw. The Crown also filed photographs of the interior of the home as exhibits.

[10] In his submissions to the trial judge, Crown counsel argued that all of the evidence of what happened at the Garvin residence should be admitted for two reasons: (a) the striking of Mr. McKay was so similar to what had happened to the deceased as to be probative of planning and deliberation beyond the extent of its prejudicial effect, and (b) it was part of the narrative. On the question of similarity, the following points were stressed: (a) the short period of time between the incidents, (b) an immediate act of violence after entering each of the two homes, and (c) asudden stabbing with a knife in each home seemingly without provocation. Crown counsel also submitted that planning and deliberation could not be proven in any other way such that the evidence was crucial to its case.

Question from the Jury

[18] Early in their deliberations, the jury asked for “clarification of the definition of first degree murder and second degree murder, the difference between them, particularly the planning”. The trial judge recharged the jury on this point as follows:

So second degree murder is when an accused intentionally kills someone. To move up to first degree murder, you have to have intentionally killed someone and it has to have been planned and deliberate. When you are looking at the planned and deliberate, the planning means that there’s a calculated scheme or a design, that it was thought out and considered by the accused. Deliberate means that it was [sic] impulsive. It was not just a spur of the moment decision. It wasn’t done in the heat of the moment. And you’ll recall I also talked about that planned didn’t have to be complicated, and it needn’t have been planned over a lengthy period of time. It can be a simple plan. It just has to be a design or a scheme to have committed the intentional killing.

Analysis

Standard of Review

[21] It is appropriate to begin by mentioning the applicable standard of review and how it applies in this appeal. In R v Handy, 2002 SCC 56, [2002] 2 SCR 908 [Handy], Binnie J. wrote for the Court:

[153]   A trial judge has no discretion to admit similar fact evidence whose prejudicial effect outweighs its probative value. Nevertheless, a trial judge’s decision to admit similar fact evidence is entitled to substantial deference: B.(C.R.), [1990 CanLII 142 (SCC), [1990] 1 SCR 717], at p. 739; and Arp, [1998 CanLII 769 (SCC), [1998] 3 SCR 339], at para. 42. …

(Emphasis added)

[22] In a companion case, R v Shearing, 2002 SCC 58, [2002] 3 SCR 33 [Shearing], the following was observed:

[73]      In the weighing up of probative value versus prejudice, a good deal of deference is inevitably paid to the view of the trial judge: B.(C.R.), supra, at p. 733. This does not mean that the trial judge has a discretion to admit similar fact evidence whose prejudicial effect outweighs its probative value, but it does mean that the Court recognizes the trial judge’s advantage of being able to assess on the spot the dynamics of the trial and the likely impact of the evidence on the jurors. These are evidentiary issues on which reasonable judges may differ and, absent error in principle, the decision should rest where it was allocated, to the trial judge.

(Emphasis added)

[33]      The process of balancing probative value against prejudicial effect is the trial judge’s responsibility. Appellate courts will defer to the trial judge’s assessment of the comparative probative value and prejudicial effect of the proffered evidence unless an appellant can demonstrate that the result of the trial judge’s analysis is unreasonable, or is undermined by a legal error or a misapprehension of material evidence: [citations omitted].

Legal Errors in Assessing Probative Value

[29] It is also worth observing that the plan need not necessarily involve planning to cause death. Based on s. 229(a)(ii) of the Criminal Code, first degree murder can be established by proof that the accused planned and deliberated upon an action that would cause bodily harm that the accused knew was likely to cause death and was reckless as to whether death ensued: R v Nygaard, 1989 CanLII 6 (SCC), [1989] 2 SCR 1074. Thus, in this case, it is understood that the appellant could be convicted of first degree murder based on a finding by the jury that he planned and deliberated to cause death pursuant to s. 229(a)(i) or to cause bodily harm he knew was likely to cause death pursuant to s. 229(a)(ii) or he was reckless in that regard.

[82]  … Factors connecting the similar facts to the circumstances set out in the charge include:

(1) proximity in time of the similar acts … ;

(2) extent to which the other acts are similar in detail to the charged conduct … ;

(3) number of occurrences of the similar acts … ;

(4) circumstances surrounding or relating to the similar acts … ;

(5) any distinctive feature(s) unifying the incidents … ;

(6) intervening events … ;

(7) any other factor which would tend to support or rebut the underlying unity of the similar acts.

(Citations omitted)

[34] … In other words, the trial court in Handy had to decide whether the act underlying the offence charged, i.e., the sexual assault, took place at all. It was with that purpose in mind that the cogency of the proposed similar fact evidence had to be assessed.

[35] However, in the within case, the issue before the trial judge was whether evidence of an assault on another victim was probative of the mental element necessary to prove that the appellant had planned and deliberated upon the murder of the deceased. It appears to me that, rather than determining whether the evidence of the prior assault on Mr. McKay had any probative value in relation to that question, the trial judge moved directly to a consideration of whether its assumed probative value outweighed its prejudicial effect. If she did determine that the evidence was probative of the central issue in the case, she erred by finding that the evidence of what occurred at the Garvin residence was probative of whether the appellant had planned and deliberated upon the murder of the deceased. [PM Emphasis]

[37] The trial judge is clearly tracking the factors from paragraph 82 of Handy; but there is no indication in her reasons that she asked the preliminary question of whether the evidence of the prior attack amounted to some evidence going to planning or deliberation of the killing of the deceased. The trial judge’s conclusory statement that the two stabbings were part of the same transaction also appears to overstate the law regarding s. 589. See: R v Manasseri, 2016 ONCA 703, 344 CCC (3d) 281. In any event, finding that two crimes are part of the same transaction does not determine whether evidence of one crime can be used as similar fact evidence to prove planning and deliberation in relation to the other.

[38] Finding that both were stabbings that occurred in a physically similar fashion with the same type of weapon is reasoning that might be probative of trying to determine the identity of an accused or to overcome a defence of some sort. However, making such a finding says nothing about whether the appellant had formulated a plan before murdering the deceased so as to meet the definition of planning. Similarly, determining that both stabbings were unprovoked is not probative of whether the appellant had “carefully thought out” – to use the words from CRIMJI – the second attack so as to have met the element of deliberation. Finally, a finding that the similarities were “striking” does not get to the heart of the matter, which is in what way did the stabbing of Mr. McKay permit an inference that the murder of the deceased was planned and deliberate.

[40] …. The most common type of circumstantial evidence derived from similar fact evidence, directed to the question of planning and deliberation, is one or more prior acts of violence against the same victim: R v Banash (1991), 1991 CanLII 12023 (MB CA), 75 Man R (2d) 70 (CA) at paras 5 and 7, leave to appeal to SCC refused, [1992] 1 SCR v;and R v Pasqualino, 2008 ONCA 554 at para 31, 233 CCC (3d) 319. But even acts of violence or aggressiveness directed to the same victim may not be sufficiently probative of planning and deliberation in all circumstances: R v Evaloakjuk, 2001 CanLII 39421 (Nu CA) at paras 17, 18, 20 and 21; and R v McKenzie, 2018 ONSC 2006 at para 34.

(a) proving that the criminal act had in fact occurred – Handy; Shearing; R v Dueck, 2011 SKCA 45, 371 Sask R 134; and Capewell at para 85;

(b) proving identity by modus operandi or some form of calling card evidence – R v Arp, 1998 CanLII 769 (SCC), [1998] 3 SCR 339 [Arp]; R v Pickton, 2009 BCCA 300 at paras 94–97, 260 CCC (3d) 132 [Pickton]; R v Jesse, 2012 SCC 21, [2012] 1 SCR 716; R v Legebokoff, 2014 BCSC 1636, aff’d 2017 CanLII 6743 [Legebokoff]; and R v Weese, 2016 ONCA 449, 350 OAC 170;

(c) rebutting a defence of accident or some other defence – R v Boulet, 1976 CanLII 144 (SCC), [1978] 1 SCR 332 [Boulet], and Capewellat para 85;

(d) proving a system of killing and rebutting the defence that the accused was caught up in an unforeseen misadventure – Boulet; and

(e) proving planning and deliberation of one or more murders by virtue of proof of planning and deliberation of other murders: Pickton and Legebokoff.

[42] The Crown relies in particular on Pickton, Legebokoff, Boulet, and R v Douglas, 2017 BCSC 844, rehearing refused, 2017 BCSC 2579[Douglas], in support of the proposition that proof of the assault on Mr. McKay was probative of the planning and deliberation of the murder of the deceased. While not cited to the Court, I would also add to this list R v Nimoh, 2018 ONSC 2745 [Nimoh]. In my respectful view, each of these decisions is distinguishable from the case before this Court.

[48] There are only a few decisions where evidence of a crime perpetrated on one victim has been admitted as similar fact evidence to prove planning of deliberation of the murder of another person. Douglas is one such case and Nimoh is another. But, in neither of these cases did the trial judge analyse how evidence of the prior crime committed against one victim constitutes evidence of planning and deliberation of the murder of another. Douglas is also distinguishable on the basis that the Court held that it would not be possible for Mr. Dalke to explain his own actions and conduct on the night in question without reference to the prior threats and actions of the accused. I see no parallels between the case before this Court and Douglas.

[49]           Finally, it is worth observing that the Crown also relies on the voir dire decision of R v Beamish (1996), 144 Nfld & PEIR 326 (PEISC (TD)), wherein the trial judge admitted evidence of prior assaults against one person to prove planning and deliberation of the murder of another person. … However, the trial judge’s decision to admit evidence of prior acts of violence against a former domestic partner was in fact reversed by the PEI Court of Appeal. That court ruled that the “evidence was clearly very prejudicial and … there is nothing that gives it much probative value beyond showing that the appellant was a bad person capable of committing acts of extreme violence against women” (at para 7). It was further agreed that the “only real issues in the case were whether the appellant was the killer … and if so, whether it was planned and deliberate”.

[50] In that regard, Beamish CA resembles R v Reynolds (1978), 1978 CanLII 1269 (ON CA), 44 CCC (2d) 129 (WL) (Ont CA) [Reynolds], where the Ontario Court of Appeal allowed an appeal from a conviction based on the use of a subsequent assault on a different individual as being probative of planning and deliberation of a prior murder. The Court described the evidence of the assault on another person as being manifestly “of no probative value in determining whether the killing of the deceased was planned and deliberate” (at para 18).

[51] It would be an error to approach this area of the law by looking for similar cases or attempting to categorize the cases. As Watt J.A. observed in Luciano, at paragraph 230, “probative value is a relative concept to be determined in the context of the case being tried”. Determining whether similar fact evidence ought to be admitted requires a principled approach that is responsive to the issue for which the evidence is adduced: Arp at para 38. Here, the question that the trial judge had to ask was whether the evidence of what happened at the Garvin residence was probative of both the planning and the deliberation of the murder of the deceased.

[52]  In my respectful view, the evidence of what happened at the Garvin residence to Mr. McKay merely establishes, at most, a general propensity towards violence on the appellant’s part and some generic similarities between the incidents. The aggressiveness and the animosity demonstrated by the appellant toward Mr. McKay were not probative of planning and deliberation of the killing of the deceased. The trial judge erred by ascribing any probative value to the impugned evidence. It should not have been admitted. [PM Emphasis]

Unreasonable balancing of probative value and prejudicial effect

[53] If the trial judge did not err in her assessment of the probative value of the evidence at the Garvin residence, I would nonetheless still intervene in this appeal to order a new trial. In my respectful view, applying the standard of review as stated in James at paragraph 33, the appellant has demonstrated that the trial judge’s weighing of probative value and prejudicial effect resulted in an unreasonable decision. I will expand on this conclusion.

 

R v George, 2021 NSSC 42

[February 7, 2022] Identification by Police Officer – Bare Recognition Identification [Justice Ann E. Smith]

AUTHOR’S NOTE: Eye witness identification is a well-documented source of error in criminal proceedings leading, at times, to wrongful convictions. However, within the general acceptance of this principle is a underlying wishful thinking element that retains its power over triers of fact. For some reason, the powers of observation of police officers are given emphasis by triers of fact when there is nothing to substantiate their somehow better powers of identification. Moreover, once a person states they know the suspect, all the eye-witness identification error analysis seems to fly out the window. Judges and juries deploy a less critical acceptance of such claims. They should not. This case and that law it reviews reminds us that “bare recognition” cases are as prone to error as other types of eye-witness identification cases. The reality is that human memory is an imperfect tool for fact finding and it must always be subjected to critical review in a criminal trial. 

Overview

[1] This is a summary conviction appeal. The appellant was convicted under section 249.1 of the Criminal Code, of failing “without reasonable excuse and in order to evade the peace officer,” to stop a motor vehicle he was operating “while being pursued by a peace officer…”.

[2] The conviction is overturned. With respect, the trial judge’s conclusions on several elements of the offence were not reasonably supportable on the evidence.

The Evidence

[3] RCMP Cst. Lyle Reid testified at trial that on September 11, 2018, he was on traffic patrol on Highway 16, in the Lincolnville area around 8:40 a.m. He saw a car approaching that he believed was speeding. He initially described it as a silver or grey Honda and later confirmed from his General Report that it was a Civic. His description of his initial encounter with the Civic in his direct evidence was as follows:

… The radar that I had on beeped, noticed it was registering 120 in the 90’s area. Turned on my emergency equipment to stop the vehicle. Noticed the vehicle to be that that William George had been driving earlier in the week. I had noticed him driving while in my own car around Guysborough earlier, so I was kind of looking for it, knowing that Mr. George didn’t have a license. So, I immediately turned on my emergency vehicle [sic], the vehicle came close to me. Caught a view of the driver. The driver was Mr. George. I’ve known Mr. George for many years with my service both in Guysborough and prior to that in Antigonish.

[4]  He testified that the appellant was due in court that day in Port Hawkesbury.

[5]  Cst. Reid said he turned on his red and blue roof lights and front flasher strobe with “advanced enough notice of the car coming, he would have seen my lights on to know I was going to conduct a traffic stop.” He said he was able to identify the appellant when the Civic “passed by driver … side by driver’s side as he went by.” … He testified that the Honda “accelerated to the point where I could see the car kind of dip down because the accelerator was hit so hard”.

[6] Cst. Reid described the Lincolnville Loop as “a residential area and being that time of day, there could be students out waiting for a bus or people walking their dogs…”. … He confirmed that he ended the pursuit for “safety reasons.”

[7] On cross-examination, Cst. Reid said …

A: Yeah, I had to come close to the spot where I was going to make the turn and I wasn’t moving very fast and he drove right by. I was able to identify him easily.

[8] Cst. Reid agreed that he did not get close enough to the Civic to read the license plate, although he was “trying to close the gap…”.

[9] Cst. Reid testified that after returning to the Guysborough detachment, he called the Port Hawkesbury detachment. Knowing that the appellant had court that day in Port Hawkesbury, he hoped the detachment might be able to catch him crossing the causeway on his way to court. While that did not occur, he was able to obtain video from the Port Hawkesbury courthouse showing the appellant arriving in the same vehicle that he had seen earlier. …

[10] The only issue directly argued at trial was identity. Crown counsel simply said, “he’s known him for years. He was able to identify him, and he clearly saw him on that day evading him.” The defence argued that the evidence of Cst. Reid’s identification of the appellant was insufficient given that he had “mere seconds to make the visual identity of the driver”.

Appeals under section 686(1)(a)(i)

[14] An accused is permitted to appeal a conviction pursuant to section 813(a) of the Criminal Code. Pursuant to section 686(1)(a)(i) the appeal court “may allow the appeal where it is of the opinion that … the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence…”.  While Crown and defence counsel canvassed various cases interpreting the applicable standard, they appear to agree that the question is “whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered on the evidence as a whole”: R. v. Sinclair, 2011 SCC 40, [2011] 3 SCR 3, at para. 84, per Charron J. (concurring in result). …

[15] … In accordance with Nickerson, of course, the appeal court may re-examine and re-weigh the evidence to determine whether it is reasonably capable of supporting the trial judge’s conclusions.

[17] The purpose of section 249.1 was to “to address the potentially dangerous situation that inevitably arises when a motorist attempts to evade police engaged in lawful pursuit. The offence requires proof of an intention to evade the police officer”: R. v. Kagayalingam, 2006 ONCJ 402, at para. 34. The elements were set out in R. v. Kulchisky, 2007 ABCA 110:

[4]   … The essential elements are the following:

·     The accused must be operating a motor vehicle.

·     A peace officer must be pursuing the accused.

·     The evidence must establish that the accused knows a police officer is in pursuit.

·     The peace officer must be operating a motor vehicle.

·     The accused must fail to stop his vehicle as soon as reasonable in the circumstances.

·     The accused must have no reasonable excuse for his failure to stop.

·     The accused must fail to stop “in order to evade the peace officer.”

Identification

[36] The trier of fact must take into account the frailties of eyewitness identification in considering such issues as whether the suspect was known to the witness, the circumstances of the contact during the commission of the crime (including whether the opportunity to see the suspect was lengthy or fleeting) and whether the circumstances surrounding the opportunity to observe the suspect were stressful…

[25] The appellant says it is “clear from the trial judge’s reasoning that he was not mindful of the inherent frailties and dangers of eyewitness testimony nor was he mindful of the need to scrutinize such testimony with great care and caution.” The trial judge made no assessment of reliability. The appellant suggests he placed an improper burden on the defence to prove that he was not the driver. …

[28] … in this case, the trial judge did not self-direct on the use that could be made of Cst. Reid’s evidencethat he had previously seen the appellant driving a similar vehicle and that he was looking for the appellant because he had been driving without a license. There was no evidence that the Civic Cst. Reid saw on September 11, 2018, was the same vehicle he believed he had seen the appellant driving earlier, and the Crown did not elicit any details about the circumstances of the alleged prior identification or why Cst. Reid thought it was the same vehicle. …

[69] To summarize then, the importance of articulating identifiable features or idiosyncrasies will vary depending upon the level of familiarity the witness has with the person to be identified.  In some cases a witness may be sufficiently familiar with the person, so as to render the identification by the witness of any unique identifiable feature unnecessary, in order for a court to properly assign substantial value to that evidence.  Common sense and one’s life experience reminds us that people have vastly different abilities when it comes to identifying or expressing the particular features of people they know and recognize, through their contact with one another.  Where contact is fleeting, a person’s recognition evidence may be of little value unless the witness can explain its basis in some detail.  On the other hand, a simple conclusory recognition without additional elaboration of any points of distinctiveness, may still be highly probative in the case of a person who is closely familiar with the accused…

[Emphasis by PM]

[35] In R. v. M.B., 2017 ONCA 653, the court remarked that where a witness does not have a “long and closely familiar” relationship with the person being identified, the witness should be expected to “articulate the particular features or idiosyncrasies that underlie the recognition” (para. 47, citing R. v. Panghali, 2010 BCSC 1710, at para. 42).

[36] The trial judge did not expressly instruct himself on the potential frailties of the identification evidence in this context. His reasons suggest that no such scrutiny was required due to Cst. Reid’s recognition of the accused. The only evidence of Cst. Reid’s previous knowledge of the appellant was his statement that he had known him “for many years” in Guysborough and, before that, in Antigonish. As the appellant submits, the evidence contained no further details that would allow the trial judge to assess “how well did they “know” each other; had they crossed paths once in 2010 and once in 2018?” Cst. Reid did not describe the appellant and did not describe the individual he saw driving the Civic on either occasion. He did not provide details such as “the sex, the age, the race, the weight, or any distinguishing features that would allow the court to assess his reliability”. The appellant suggests that the trial judge took Cst. Reid’s confidence in his identification as an indicator of reliability. It is difficult to reach any other conclusion on a review of the record.

[39] The Crown challenges the characterization of Cst. Reid’s opportunity to see the appellant as “fleeting”, arguing that “it does not appear that Cst. Reid was testifying that his only opportunity to see the driver was while the cars were passing side-by-side…” The Crown says the trial judge was entitled to “infer that Cst. Reid’s observations of the driver likely included observations made through the frontwindshields as the two vehicles approached each other.” (Crown brief at paras. 19- 20).

[40] In my view, it amounts to speculation for the trial judge to find that Cst. Reid was able to identify the driver of the Civic through his front windshield. This factor might weigh less heavily had there been any indication that the trial judge had considered the reliability of the identification beyond accepting the officer’s own confidence in his recognition of the appellant. But combined with the other frailties described above, the result is that the trial judge gave no apparent scrutiny to the reliability of an identification resting only on the witness’s confident declaration of recognition, despite the lack of an evidentiary record from which such reliability can be inferred. Given that the trial judge was required to be convinced of the driver’s identity beyond a reasonable doubt, in my view the cumulative result is that the finding is not reasonably supported by the evidence.

Knowledge of Pursuit

[47] The appellant says the evidence did not permit a finding that the driver of the Civic seen by Cst. Reid knew that he was being pursued. The driver would only have seen a police cruiser travelling in the opposite direction and turning on its lights. The trial judge made no specific finding respecting knowledge. As such, the appellant submits, it is not clear what inferences the trial judge drew, or whether they were reasonable.

[52] In my view, it would be permissible to infer that the driver of the Civic saw Cst. Reid’s lights as the vehicles approached one another on the road. Anything beyond that, however, is speculation. Further, in my view, it would be speculative to infer from the evidence that the driver of the Civic saw Cst. Reid turn around or heard the siren after the two cars passed. This is particularly the case given the brief period of contact between the two vehicles as described by Cst. Reid. Nor would it be reasonable to draw such an inference from the mere fact that the Civic turned off the road, even at an increasing speed.

[53] The whole of the evidence is too sparse on the entire circumstances (such as the presence or absence of other traffic) to permit such an inference. In my view, the inference of knowledge is not reasonably supported by the evidence.

Intention to Evade

[54] The trial judge made no express reference to this element, but as noted earlier, he did consider Cst. Reid’s evidence that the appellant was driving without a license. The appellant says this is irrelevant evidence of motive and propensity, namely, that having allegedly been seen previously by Cst. Reid, and allegedly being without a license, the appellant would be more likely than other Civic drivers to try to evade the police.

[56] For essentially the reasons going to the issue of knowledge, I find that an intention to evade pursuit is not a reasonable inference from the evidence respecting the encounter between Cst. Reid and the Civic on September 11, 2018. Additionally, I find that the appellant is correct that the trial judge essentially substituted the irrelevant and speculative evidence of an alleged motive for evidence of intention to evade. As such, I find that the evidence does not reasonably support a finding of intention to evade pursuit.

Conclusion

[57] The appeal is allowed. The conviction is set aside and an acquittal is entered. The trial judge’s conclusions on several elements of the offence were not reasonably supported by the evidence.

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