The Defence Toolkit – February 22, 2019

This week’s top three summaries: R v Jarvis, 2019 SCC 10, R v Nield, 2019 BCCA 27, and R v Shergill, 2019 ONCJ 54.

R. v. Jarvis (SCC)

[Feb 14/19] Elements of Voyeurism - Reasonable Expectation of Privacy in Video Recording - Statutory Interpretation - 2019 SCC 10 [Majority Reasons by Wagner C.J. with Abella, Moldaver, Karakatsanis, Gascon and Martin JJ. Concurring, Dissent: Côté, Brown and Rowe JJ]

AUTHOR’S NOTE: In this case, the SCC settled the elements of the offence of voyeurism.  The decision will be a reference point for all future decisions involving this crime.  However, the decision is also interesting to the defence because the majority explicitly linked "reasonable expectation of privacy" of potential victims of voyeurism to the experience of accused persons vis a vis police video surveillance.  Given that explicit link,  some of the generally protective reasons have equal application to cases where police video recording is under the microscope in s.8 Charter claims.  In one stroke the SCC protected potential victims of voyeurism and accused persons challenging police video surveillance actions.

Pertinent Facts

"Mr. Ryan Jarvis, the respondent in this appeal, was charged with voyeurism contrary to s. 162(1)(c) of the Criminal Code after he used a camera concealed inside a pen to make video recordings of female students at the high school where he was a teacher. Mr. Jarvis recorded students while they were engaged in ordinary school-related activities in common areas of the school, including classrooms and hallways. Most of the videos focused on the faces and upper bodies of female students, particularly their chests. The students did not know that they were being recorded." (Para 2)

"The videos recorded by Mr. Jarvis range in length from a few seconds to several minutes. They were shot in locations in and around the school, including hallways, classrooms, the cafeteria and the school grounds. Most of the videos focus on female students at the school. At the time the videos were recorded, these students ranged in age from 14 to 18 years old. The videos show them engaged in common school activities. The videos have an audio component and, in some of them, Mr. Jarvis can be heard speaking with students on various topics. Students wearing low- cut or close-fitting tops make up the vast majority of subjects. It is also striking that a number of the videos are shot from above or beside female students who are seated in classrooms or computer labs, or who are in the hallways of the school, at angles that capture more of their breasts than would be visible if the students were recorded head on." (Para 10)

"...a school board policy in effect at the time Mr. Jarvis made the videos prohibited his conduct in making the videos in the manner that he did..." (Para 11)

Elements of the Offence of Voyeurism

"That offence is committed where a person surreptitiously observes or makes a visual recording of another person who is in circumstances that give rise to a reasonable expectation of privacy, if the observation or recording is done for a sexual purpose: see R. v. Rudiger, 2011 BCSC 1397, 244 C.R.R. (2d) 69, at para. 75. A “visual recording” is defined, for the purposes of s. 162, as including “a photographic, film or video recording made by any means”: Criminal Code, s. 162(2)." (Para 21)

"The following non-exhaustive list of considerations may assist a court in determining whether a person who was observed or recorded was in circumstances that give rise to a reasonable expectation of privacy:

(1) The location the person was in when she was observed or recorded. The fact that the location was one from which the person had sought to exclude all others, in which she felt confident that she was not being observed, or in which she expected to be observed only by a select group of people may inform whether there was a reasonable expectation of privacy in a particular case.

(2) The nature of the impugned conduct, that is, whether it consisted of observation or recording. Given that recording is more intrusive on privacy than mere observation, a person’s expectation regarding whether she will be observed may reasonably be different than her expectation regarding whether she will be recorded in any particular situation.

(3) Awareness of or consent to potential observation or recording...

(4) The manner in which the observation or recording was done. Relevant considerations may include whether the observation or recording was fleeting or sustained, whether it was aided or enhanced by technology and, if so, what type of technology was used....

(5) The subject matter or content of the observation or recording. Relevant considerations may include whether the observation or recording targeted a specific person or persons, what activity the person who was observed or recorded was engaged in at the relevant time, and whether the focus of the observation or recording was on intimate parts of a person’s body. This Court has recognized, in other contexts, that the nature and quality of the information at issue are relevant to assessing reasonable expectations of privacy in that information.

(6) Any rules, regulations or policies that governed the observation or recording in question. However, formal rules, regulations or policies will not necessarily be determinative, and the weight they are to be accorded will vary with the context.

(7) The relationship between the person who was observed or recorded and the person who did the observing or recording. Relevant considerations may include whether the relationship was one of trust or authority and whether the observation or recording constituted a breach or abuse of the trust or authority that characterized the relationship. This circumstance is relevant because it would be reasonable for a person to expect that another person who is in a position of trust or authority toward her will not abuse this position by engaging in unconsented, unauthorized, unwanted or otherwise inappropriate observation or recording.

(8) The purpose for which the observation or recording was done....

(9) The personal attributes of the person who was observed or recorded. Considerations such as whether the person was a child or a young person may be relevant in some contexts." (Para 29)

"I recognize that expressing this element by reference to the circumstances in which a person is observed or recorded is also a way to make it clear that this element relates to privacy expectations that would reasonably arise from the context in which observation or recording takes place, not to the subjective, and potentially idiosyncratic, privacy expectations of the particular person who is observed or recorded." (Para 43)

General Commentary on Reasonable Expectation of Privacy

"I readily accept that expectations of privacy with respect to observation or recording will generally be at their highest when a person is in a traditionally “private” place from which she has chosen to exclude all others. For example, a person alone at home, or in a washroom with the door closed, would typically expect near absolute privacy — and certainly would expect not to be observed or recorded without her knowledge. But a person does not lose all expectations of privacy, as that concept is ordinarily understood, simply because she is in a place where she knows she can be observed by others or from which she cannot exclude others." (Para 37)

"In my view, a typical or ordinary understanding of the concept of privacy recognizes that a person may be in circumstances where she can expect to be the subject of certain types of observation or recording but not to be the subject of other types. An obvious example is that of a person who chooses to disrobe and engage in sexual activity with another person and who necessarily expects to be observed by that other person while she is nude and engaging in that activity. Her privacy would nonetheless be violated if that other person, without her knowledge, video recorded the two of them engaging in the activity. And a couple who choose to film themselves engaged in sexual activity do not thereby waive their expectation that third parties will not secretly observe or record them engaging in that activity." (Para 38)

"One can think of other examples where a person would continue to expect some degree of privacy, as that concept is ordinarily understood, while knowing that she could be viewed or even recorded by others in a public place. For example, a person lying on a blanket in a public park would expect to be observed by other users of the park or to be captured incidentally in the background of other park- goers’ photographs, but would retain an expectation that no one would use a telephoto lens to take photos up her skirt (a hypothetical scenario discussed in Rudiger, at para. 91). The use of a cell phone to capture upskirt images of women on public transit, the use of a drone to take high-resolution photographs of unsuspecting sunbathers at a public swimming pool, and the surreptitious video recording of a woman breastfeeding in a quiet corner of a coffee shop would all raise similar privacy concerns. (Para 40)

"The second principle from the jurisprudence on s. 8 of the Charter and the broader privacy jurisprudence that is applicable in the s. 162(1) context is that privacy is not an “all-or-nothing” concept. In other words, simply because a person is in circumstances where she does not expect complete privacy does not mean that she waives all reasonable expectations of privacy: see Duarte; R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36; R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527; R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at para. 108; Buhay, at para. 22; see also R. v. Spencer, 2014 SCC 43 (CanLII), [2014] 2 S.C.R. 212, at paras. 41-44; R. v. Quesnelle, 2014 SCC 46 (CanLII), [2014] 2 S.C.R. 390, at paras. 28-29 and 37-43; Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 (CanLII), [2013] 3 S.C.R. 733, at paras. 27 and 38 (“Alberta v. UFCW, Local 401”). Thus, the fact that a person knows she will be observed by others, including by strangers, does not in itself mean that she forfeits all reasonable expectations of privacy in relation to observation or visual recording." (Para 61)

"An example of this broader principle that is recognized in the jurisprudence is that the intrusion into our privacy that occurs when a person hears our words or observes us in passing is fundamentally different than the intrusion that occurs when the same person simultaneously makes a permanent recording of us and our activities: see Duarte, at p. 48; Wong, at pp. 44 and 48-53; see also Alberta v. UFCW, Local 401, at para. 27. A visual recording may be able to capture a level of detail that the human eye cannot. A visual recording can also capture this detail in a permanent form that can be accessed, edited, manipulated and studied by the person who created the recording and that can be shared with others: see R. v. Sandhu, 2018 ABQB 112, 404 C.R.R. (2d) 216, at para. 45; see also Alberta v. UFCW, Local 41, at para. 27. ...This is not to say that any person who appears in any public place retains a reasonable expectation that she will not be recorded by anyone for any reason: some types of visual recording in public places are to be expected. Rather, it is to emphasize that there is a fundamental difference between mere observation and recording and that this difference is part of the context that must be considered in analyzing reasonable expectations of privacy." (Para 62)

"While evolving technologies may make it easier, as a matter of fact, for state agents or private individuals to glean, store and disseminate information about us, this does not necessarily mean that our reasonable expectations of privacy will correspondingly shrink." (Para 63)

"This leads me to an important point about the reasonable expectation of privacy inquiry in the contexts of s. 8 the Charter and s. 162(1) of the Criminal Code. The s. 8 jurisprudence makes it clear that “reasonable expectation of privacy” is a normative rather than a descriptive standard: see Tessling, at para. 42. This Court has also found that the question of whether a person claiming the protection of s. 8 had such an expectation cannot be answered by falling back on a “risk analysis” — that is, by reducing the inquiry to whether the person put themselves at risk of the intrusion they experienced: Duarte, at pp. 47-48; Wong, at p. 45. Both of these propositions apply in the s. 162(1) context. Whether a person reasonably expects privacy is necessarily a normative question that is to be answered in light of the norms of conduct in our society. And whether a person can reasonably expect not to be the subject of a particular type of observation or recording cannot be determined simply on the basis of whether there was a risk that the person would be observed or recorded. The development of new recording technology, and its increasing availability on the retail market, may mean that individuals come to fear that they are being recorded by hidden cameras in situations where such recording was previously impossible; however, it does not follow that individuals thereby waive expectations of privacy in relation to such recording or that retaining such an expectation becomes unreasonable: see Tessling, at para. 42. Indeed, to accept such an approach would make the “reasonable expectation of privacy” a “meaningless standard” and would undermine Parliament’s very purpose in enacting s. 162(1): see Wong, at p. 45." (Para 68)

"Thus, the only question to be asked in determining whether a person who is observed or recorded was in circumstances that give rise to a reasonable expectation of privacy is whether that person was in circumstances in which she would reasonably have expected not to be the subject of the observation or recording at issue." (Para 70)

Statutory Interpretation

"A legislature is presumed to have a mastery of existing law: Sullivan, at p. 205. When a legislature uses a common law term or concept in legislation, that term or concept is presumed to retain its common law meaning: Sullivan, at p. 543. Therefore, Parliament must be understood as having chosen the words “reasonable expectation of privacy” in s. 162(1) purposefully and with the intention that the existing jurisprudence on this concept would inform the content and meaning of these words in this section." (Para 56)

Application to the Facts in Jarvis

"As discussed above, it is undeniable that a person in a particular situation may reasonably expect to be casually observed or even stared at by others but not expect to be the focus of a permanent visual recording. Recording has a greater potential impact on privacy than does mere observation, as a recording can be saved for long periods of time, replayed and studied at will, dramatically transformed with editing software, and shared with others — including others whom the subject of the recording would not have willingly allowed to observe her in the circumstances in which the recording was made. Indeed, in the case at bar, the recordings would have allowed Mr. Jarvis, by watching the videos he had made, to “observe” students in a manner that would otherwise be unimaginable. If Mr. Jarvis had attempted to stare at students’ breasts while standing directly beside them for long stretches of time, as he effectively could do by watching the recordings he made, it is inconceivable that the students would not have taken evasive action or that school authorities would not have been alerted to this behaviour earlier." (Para 74)

"In particular, there are profound differences between the effect on privacy resulting from the school’s security cameras and that resulting from Mr. Jarvis’ recordings, and the students’ expectation that they would be recorded by the school’s security cameras tells us little about their privacy expectations with respect to the recording done by Mr. Jarvis." (Para 75)

"The security cameras at the school were mounted to the walls near the ceiling inside the building and also to the outside of the building. They did not record audio; the direction they pointed could not be manipulated by teachers; teachers could not access or copy the recorded footage for their personal use; and the purpose of the cameras was to contribute to a safe and secure learning environment for students. Signs at the school indicated that the school halls and grounds were under 24-hour camera surveillance: Agreed Statement of Facts, A.R., vol. 7, at p. 148. Given ordinary expectations regarding video surveillance in places such as schools, the students would have reasonably expected that they would be captured incidentally by security cameras in various locations at the school and that this footage of them could be viewed or reviewed by authorized persons for purposes related to safety and the protection of property. It does not follow from this that they would have reasonably expected that they would also be recorded at close range with a hidden camera, let alone by a teacher for the teacher’s purely private purposes (an issue to which I will return later in these reasons). In part due to the technology used to make them, the videos made by Mr. Jarvis are far more intrusive than casual observation, security camera surveillance or other types of observation or recording that would reasonably be expected by people in most public places, and in particular, by students in a school environment." (Para 76)

"The content of the recordings is a telling aspect of the contextual inquiry in the case at bar as well....  However, the videos focus on particular students, show them in close-up and in detail, and focus on their faces and upper bodies, including their breasts. Each of these features of the videos is significant and militates in favour of a conclusion that the videos were made in breach of the reasonable expectations of privacy that would arise in such circumstances." (Para 79)

"Finally, an aspect of the content of the videos that is particularly significant to my conclusion that Mr. Jarvis breached the students’ reasonable expectations of privacy in recording them is that the videos focus on the students’ bodies, particularly their breasts. While our society places a high value on all forms of personal and informational privacy, privacy with respect to intimate parts of our bodies and information about our sexual selves is particularly sacrosanct. Individuals are understood to have heightened privacy expectations with respect to intimate or sexualized parts of the body, including genital areas and breasts: see Golden, at paras. 89-90 and 99..." (Para 82)

"It is also relevant to the students’ reasonable expectations of privacy that there was a formal school board policy in effect at the time Mr. Jarvis made the video recordings at issue that “prohibited [his] conduct in making the recordings in the manner that he did.” (Para 83)

"This brings me to another relevant circumstance surrounding the making of the recordings at issue in the case at bar: the fact that Mr. Jarvis was a teacher at the school and that his surreptitious recording betrayed the trust invested in him by his students.  Teachers are presumed to be in a relationship of trust and authority with their students: R. v. Audet, [1996] 2 S.C.R. 171, at paras. 41-43." (Para 84)

"These considerations are applicable to our assessment of the students’ expectations of privacy in the case at bar. The fact that all of the students were young persons means that they would have reasonably expected the adults around them to be particularly cautious about not intruding on their privacy, including by not targeting them for visual recording without their permission." (Para 88)

"To determine whether a person who is observed or recorded is in circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1), a court must ask whether the person is in circumstances in which she would reasonably expect not to be the subject of the type of observation or recording that in fact occurred. In the case at bar, the subjects of the videos were teenage students at a high school. They were recorded by their teacher in breach of the relationship of trust that exists between teachers and students as well as in contravention of a formal school board policy that prohibited such recording. Furthermore, the videos targeted individual students or small groups of students, were shot at close range, and were of high quality. Significantly, the videos had as their predominant theme or focus the bodies of students, particularly their breasts. In my view, there is no doubt that, in recording these videos, Mr. Jarvis acted contrary to the reasonable expectations of privacy that would be held by persons in the circumstances of the students when they were recorded. I therefore conclude that the Crown has established beyond a reasonable doubt that Mr. Jarvis recorded persons who were in circumstances that gave rise to a reasonable expectation of privacy, as that expression is used in s. 162(1) of the Criminal Code." (Para 91)

R v Nield (BCCA) 

[Jan 30/19] Calling Crown Witness as an Expert Without Notice, Defence of Non-Insane Automatism in Relation to Aggravated Assault - 2019 BCCA 27 [Reasons by Mr. Justice Willcock, with Mr. Justice Frankel, Madam Justice D. Smith Concurring]

AUTHOR’S NOTE: Although the facts were somewhat complicated, the primary issue of interest to the defence is that the appeal court found that Defence ought aught to have been allowed to Cross the Crown witness as an expert even though no notice was previously given.  As part of this, defence counsel attempted to file hospital records related to his client's stay prior to the assault of the doctor at the institution.  As well, the court approved of the defence of non-insane automatism in relation to aggravated assault.  The details of a possible defence were outlined by the court and the trial court should not have limited defence counsel from bringing out evidence to support it.  While the case was not decided on the basis of judicial interference, the conduct exhibited by the trial judge appears to have been very difficult as reproduced in the judgement.

Pertinent Facts

"On the morning of November 26, 2014, the appellant's wife took him to see his family doctor, Dr. Kyle Stevens. The appellant had been consuming hallucinogenic mushrooms and his behaviour had progressively worsened over the preceding two days. He was experiencing auditory hallucinations and was not sleeping; he was emotionally labile and angry. Dr. Stevens felt the appellant would cause or suffer significant harm if not hospitalized. Dr. Stevens completed a medical certificate for involuntary hospital admission (Form 4 prescribed by the Mental Health Act, R.S.B.C. 1996, c. 288 [MHA]) certifying that the appellant suffered a disorder that caused serious impairment and required treatment and that he could not suitably be admitted as a voluntary patient. Dr. Stevens directed the appellant to the hospital for further assessment. Section 22(1) of the Mental Health Act provides:

The director of a designated facility may admit a person to the designated facility and detain the person for up to 48 hours for examination and treatment on receiving one medical certificate respecting the person completed by a physician in accordance with subsections (3) and (4)." (Para 1)

"In the afternoon, the appellant attended at Penticton Regional Hospital and was assessed by a psychiatrist, Dr. Rajeev Sheoran, who completed a second Form 4. Section 22(2) of the Mental Health Act provides:

(2) On receipt by the director of a second medical certificate completed by another physician in accordance with subsections (3) and (5) respecting the patient admitted under subsection (1), the detention and treatment of that patient may be continued beyond the 48 hour period referred to in subsection (1)." (Para 2)

"A patient may be so detained for one month after the date of admission." (Para 3)

"During the hospital admission in this case, Dr. Sheoran prescribed medication, including anti-psychotics (Seroquel and Haldol), anti-anxiolytics (Ativan and Lorazepam), an anti-convulsant and antimanic agent (Epival), and a sedative (Imovane). The appellant took the prescribed medications reluctantly." (Para 4)

"On December 5, 2014, the appellant entered an examining room with Dr. Sheoran. Medical staff nearby heard loud banging sounds. The appellant left the room and was heard saying "I think he's dead". When the staff entered the room, they found Dr. Sheoran slumped in a chair and bleeding profusely. He had suffered very significant injuries to his face. His orbital bone was so badly fractured that he required a prosthetic implant. His right eyeball and optic nerve were damaged. He needed reconstructive dentistry and orthodontic treatment. He has suffered a traumatic brain injury and psychological and emotional problems." (Para 5)

"The appellant's conduct after the assault was bizarre. A nurse testified that she followed the appellant to a lounge. She testified he was extremely calm but concerned about his hand. She observed him asking people if they wanted a hug. A police officer testified that, while he was read his Charter rights and, later, when he was put in the cells, the appellant hummed and repeatedly introduced himself." (Para 6)

"The appellant's counsel informed the judge he intended to put the hospital record to Dr. Sheoran in crossexamination to establish the appellant was affected by a mental illness and to determine whether it was caused by the medication prescribed for him. The following exchange then occurred:

THE COURT: . . . are you bringing expert evidence?

MR. TESSMER [defence counsel]: No, I intend to rely on this big volume that, hopefully, Dr. Sheoran has looked at, on Compendium of Pharmaceuticals and Specialties.

THE COURT: Well, that's not going to happen.

MR. TESSMER: What do you mean?

THE COURT: We are going to have Dr. Sheoran be the expert evidence, suddenly?

MR. TESSMER: He could testify about side effects from -- from medicine.

THE COURT: Yeah, but what has that got to do with the issues?

MR. TESSMER: The side effects caused the --

THE COURT: Okay, I am going to rule --

MR. TESSMER: -- the act.

THE COURT: -- thus far, it may change, you may change, you can -- I am going to rule that you can take this witness [Nicole Reichenbach] through her notes, and her notes only. And you also were going to ask the question about him being involuntary patient as a result of certification by the two doctors that have been named, pursuant to Mental Health Act. All right?

MR. TESSMER: Just for the record, I am not entitled to ask her other questions about things that are recorded in the charts, about adverse reactions to the medicine that occurred to my client, unless she personally witnessed them?

THE COURT: I have decided you can ask her about her notes. And [if,] for some reason or other, this case somehow changes . . . [w]e may have to recall this witness, but that's my ruling. (Para 22)

"The effect of this ruling that the hospital record could not be admitted as evidence and the judge's view that witnesses could not be asked to express opinions in cross-examination became clear during the cross-examination of the first witness. The appellant's counsel was not permitted to ask the nurse whether the appellant was prescribed "heavy antipsychotic drugs" while in hospital. He was not permitted to ask the nurse whether, while conducting an exam, she formed the opinion that the appellant's mental status was "not that bad". He was not permitted to ask what the nurse knew about Seroquel. He was not permitted to ask whether the appellant's mental status deteriorated during his hospital stay." (Para 23)

"The ruling on each of these issues was made following an objection by Crown counsel and without hearing submissions from the appellant's counsel. (Para 24)

"Dr. Sheoran was the Crown's second witness. When questions arose with respect to the appropriate scope of the cross-examination of Dr. Sheoran the following exchange occurred:

THE COURT: . . . Ares v. Venner . . . was a case about standard of care and negligence, but that's not what this trial is about. This trial is about an assault, it's not about whether . . . Mr. Nield or anybody else thinks he got good care or not.

MR. TESSMER: No, this is about the deterioration of my client's health, under this man's care, which caused the actions on December the 5th.

THE COURT: You're never going to be able to prove that.

MR. TESSMER: Well, because you are not letting me ask any other questions.

THE COURT: But what proof are you going to have? Are you going to have an expert evidence . . . say that this man's care deteriorated? . . .

MR. TESSMER: He testified to that, we've got evidence that his care deter — it's in the -- in his testimony from the voir dire, about his care deteriorating over the time he was with him. . . . And every time his health deteriorated, the man upped the drugs, and the drugs have side effects which you say --

THE COURT: But . . . -- you are not going to bring the evidence before this court. . . . You're not bringing evidence before this court about his health deteriorating, the drugs he took, all of those things. The jury cannot make any decision about that.

MR. TESSMER: Well, that's my defence, so --

THE COURT: Well, you are not going to be able to ask the questions.

MR. TESSMER: I will have no more questions then, in this trial. Thank you." (Para 28)

"The result of this exchange and the rulings made was apparent in the concluding portion of the cross-examination of Dr. Sheoran. The appellant's counsel was not permitted to ask him:

a) What is akathisia?

b) Did the appellant have a severe reaction to Haldol?

c) What were the side effects of the drugs prescribed?

d) Did the appellant's condition deteriorate during the course of his hospital stay?

e) How was the appellant certified and was he properly certified?

f) Are some patients hypersensitive to the medications that were prescribed for the appellant?" (Para 32)

"While the appellant's condition and treatment were canvassed with other witnesses, particularly his mother and father, the appellant did not adduce any further opinion evidence and did not make any further requests to file medical records." (Para 33)

The charge to the jury contained the following:

"[133] The defence says that if Mr. Nield's actions on December 5, 2014 were intentional, then he was entitled to defend himself and, if they were not intentional, because of the ingestion of drugs, he cannot be convicted of this offence. Either way, Mr. Nield is entitled to an acquittal.

[134] Ms. Tessmer told you that if you think he is totally out of line, then I can tell you that. There is no evidence to substantiate any of the allegations set out in the theory of the defence.

[135] Evidence has not been hidden from you. You will recall I told you I was the judge of the law. That is what I do when I rule on whether evidence is admissible or not." (Para 34)

"After receiving those instructions, the jury returned with questions for the judge. With respect to the words in para. 133 of the charge: "if they were not intentional, because of the ingestion of drugs, he cannot be convicted of this offence", they asked:

Is this true or just the defence's opinion?" (Para 35)

"With respect to the words in paras. 134-135 of the charge: "There is no evidence to substantiate any of the allegations set out in the theory of the defence. . . . Evidence has not been hidden from you", they asked:

. . . we were given no information about the nature of the drugs the defendant was being given. Surely that would be evidence to support the non intention defence." (Para 36)

"The judge responded to those questions as follows:

If Mr. Nield had ingested prescribed medication which affected his intention to commit the crime, he could not be convicted. However, there is no evidence as to what prescribed drugs he consumed and the effect those drugs would have had on him as to his intention to commit the assault.

The evidence you have before you is all the evidence you will receive in this trial." (Para 38)

Excluding the Expert Evidence Substantiating Self-Defence

"There is, however, a more substantial concern: whether the rulings wrongly precluded the appellant from advancing a defence of mental disorder automatism or non-mental disorder automatism. There are two components to that question: first, whether the judge erred in law by refusing to permit the appellant to adduce the opinion evidence of Dr. Sheoran or by refusing to admit the hospital record; and, if so, then whether the appellant was prevented from advancing a viable defence." (Para 56)

"Dr. Sheoran was not formally qualified as an expert witness. However, he is qualified to express the opinions the appellant sought to adduce. On the voir dire, he was asked by Crown counsel to express opinions on the effects of the drugs prescribed for the appellant and did so without objection or reservation." (Para 59)

"The trial judge's finding that the appellant had been lawfully certified relied, in part, upon acceptance of Dr. Sheoran's opinion that the appellant met the criteria set out in the MHA for involuntary admission to hospital. While this is not entirely a question of expert opinion, since the admitting doctor's opinion of whether a patient needed to be certified and involuntarily admitted goes towards the factual finding of whether it was done properly, accepting his evidence to this effect must mean that the judge considered Dr. Sheoran to have appropriate expertise." (Para 63)

"The same, relatively casual, approach was taken to opinion evidence adduced from other witnesses in the voir dire. Dr. Stevens, the appellant's family doctor, testified in chief and on cross-examination with respect to the side effects and adverse reactions to the drugs prescribed for the appellant. He agreed with the suggestion put to him that Seroquel can create a sense of inner tension and torment that feels like agitated depression. He said this is problematic for patients and doctors because many do not realize this is a drug-induced state." (Para 64)

"While the issues on the voir dire were distinct, that does not account for the reception of the expert opinion evidence of some witnesses on the voir dire and its exclusion at trial." (Para 66)

"The trial judge's view that Dr. Sheoran should not express an opinion at trial appears to be founded upon partiality rather than a lack of expertise or formal qualification. Her decision cannot be based on inadequate notice because a trial judge cannot disallow expert evidence simply because the defence gives inadequate notice of the intention to adduce such evidence: R. v. Horan, 2008 ONCA 589." (Para 68)

"The Court, at para. 36, reaffirmed what it had said in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 at para. 106:

...For expert testimony to be inadmissible, more than a simple appearance of bias is necessary. The question is not whether a reasonable person would consider that the expert is not independent. Rather, what must be determined is whether the expert's lack of independence renders him or her incapable of giving an impartial opinion in the specific circumstances of the case ..." (Para 70)

"In my view, in the specific circumstances of this case, Dr. Sheoran's personal interests might not have precluded him from giving an impartial opinion in response to the appellant's questions. Because Dr. Sheoran might be biased against the accused, the appellant's counsel might have properly objected on the grounds of lack of impartiality or independence if the Crown had sought to elicit an opinion from Dr. Sheoran. However, in this case, the appellant was seeking to adduce Dr. Sheoran's evidence in cross-examination and, by doing so, indicated he was prepared to accept Dr. Sheoran's opinion with respect to the appellant's capacity to form the requisite general intent. The judge should have taken this into account in the overall weighing of the costs and benefits of receiving the evidence. That is particularly so where the trial judge had already heard Dr. Sheoran, in the voir dire, express detailed and apparently impartial descriptions of the prescribed medications and their anticipated effects." (Para 71)

"However, due to the "fundamental tenet of our judicial system that an innocent person must not be convicted . . . the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence", including cross-examination by the accused (R. v. Shearing, 2002 SCC 58 at para. 76, quoting R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577 at 611)." (Para 73)

"Given Dr. Sheoran's apparent expertise, the fact he cannot have been predisposed to partiality toward the accused, and defence counsel's clear description of the relevance and importance of the questions going to his defence, I am of the view the trial judge erred in law in failing to engage in the process of weighing of the costs and benefits of receiving his opinion evidence. I cannot say it was correct to exclude the opinion evidence of Dr. Sheoran." (Para 75)

"The decision of whether to admit expert evidence is discretionary and generally requires deference to the trial judge. However, where, as here, the trial judge does not apply the correct legal analysis in deciding whether to admit the evidence, this is an error of law reviewable on the standard of correctness: R. v. Balla, 2016 ABCA 212 at para. 28, leave to appeal ref'd [2017] 1 S.C.R. vi. An appellate court may intervene where the trial judge makes an error of law in deciding whether to admit expert evidence: R. v. Pearce, 2014 MBCA 70 at para. 74, adopted by this Court in R. v. Orr, 2015 BCCA 88 at para. 65; R. v. Millington, 2016 BCCA 293 at para. 37, aff'd 2017 SCC 53." (Para 76)

Admissibility of the Hospital Records

"In my view, once a witness had attested to the authenticity of the hospital record and it was admitted into evidence on the voir dire without objection, the judge should have admitted relevant portions of the record as prima facie proof of the facts recorded therein. Those facts included observations made by medical staff regarding the patient's behaviour and the type and quantity of drugs administered to him." (Para 79)

"Although she left it open to reconsideration, the constraint the judge placed upon the appellant's counsel in his questioning of Ms. Reichenbach was inappropriate. In my view, there is no principled basis to preclude the appellant's counsel from asking Ms. Reichenbach about any factual observation noted in the hospital record with respect to a relevant issue. The judge expressed some concern with respect to hearsay in the record, but Crown counsel did not object to the admission of the hospital record on that basis. Rightly so, because Ares v. Venner settled the question, described by Hall J. (at p. 622) in that case as: whether hospital records and nurses' notes are "either admissible and prima facie evidence of the truth of the statements made therein or not admissible as being excluded by the hearsay rule". They are admissible as evidence of the truth of facts recorded." (Para 80)

The Automatism Defence

"The jurisprudence describes the circumstances in which automatism might be established as a defence. This defence has been exhaustively canvassed by Canadian courts: see, e.g., Bastarache J. in R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, Hall J.A. in R. v. Cuthbert, 2007 BCCA 240 (CanLII), and Watt J.A. in R. v. S.H., 2014 ONCA 303 (CanLII). In S.H., Watt J.A. wrote:

[63]      Automatism relates to the actus reus or external circumstances of an offence. To be more specific, automatism has to do with the voluntariness component of the actus reus. The requirement of voluntariness is fundamental to the imposition of criminal liability and reflects our underlying respect for an individual’s autonomy. The voluntariness requirement also reflects the principle that unless a person has the capacity and a fair opportunity to adjust his or her behaviour to the law, its penalties ought not to be applied to him or her: Luedecke, at para. 56.

[64]      The law presumes that people, including those charged with crime, act voluntarily: Stone, at para. 171. The presumption is rebuttable. Automatism amounts to a claim that the conduct of a person charged with crime was not voluntary. It follows that a person charged who invokes automatism in answer to the charge bears the burden of rebutting the presumption of voluntariness: Stone, at para. 171." (Para 86)

"Discussing that evidentiary burden, he observed:

[71] The Stone majority offered some guidance about the nature of the additional evidence that may be relevant for consideration in deciding whether an accused had satisfied the evidentiary burden to put automatism in play before the trier of fact. That evidence includes, but is not limited to:

i. evidence of a documented medical history of automatistic-like dissociative states (para. 189);

ii. evidence of a bystander about the appearance of the accused before, during and after the alleged involuntary conduct (para. 190); and

iii. evidence of motive or absence of motive (para. 191)." (Para 87)

"The appellant would have to meet an onerous test to establish that the assault in this case was an autonomic act. However, automatism is available as a response to a charge of aggravated assault. Addressing such a charge in this Court, in R. v. Haslam (1990), 1990 CanLII 166 (BC CA), 56 C.C.C. (3d) 491, Lambert J.A. wrote (at 497):

Non‑insane automatism presents a difficult defence from the point of view of a trial judge. It is highly unlikely that the uncorroborated evidence of the accused would ever be sufficient to permit the defence to be put to the jury. But it is not open to the trial judge to weigh the evidence in favour of the defence against the contrary evidence. It is not proper for him to consider questions of credibility when deciding whether to put such a defence. If he is in doubt as to whether the defence should be put or not he should resolve that doubt in favour of the accused." (Para 88)

The defence of automatism was not bound to fail here and the evidence should not have been excluded.  A new trial was ordered. (Para 89)

R v Shergill (ONCJ)

[Jan 24/19] – S.7 Right to Silence Prevents Assistance Order for Cell Password – 2019 ONCJ 54 [Justice P. Downes]

AUTHOR’S NOTE: In this case an application to force an accused to give the police his cell phone password failed even though a search warrant for the same phone was successful.  The s.7 Charter right to silence protects against the accused being legally compelled to speak to the authorities.

Pertinent Facts

“Suhail Shergill is charged with a variety of sexual and child pornography offences in relation to his alleged interaction with a 15-year-old girl. Police seized his smart phone, a Blackberry Priv, incident to arrest. They then obtained a search warrant under s. 487 of the Criminal Code to search the contents of the device, but were unable to execute that warrant because the device is password-protected. The uncontradicted evidence on this application is that police currently know of no technology which would allow them to access the contents without risking their destruction. As a result, the police now seek a further s. 487 warrant, but this time also apply for an assistance order under s. 487.02 of the Criminal Code which, if granted, would compel Mr. Shergill to unlock the device so that the police can search it.” (Para 1)

Assistance Orders

"The parties did not dwell on this issue, and I accept that as a matter of statutory interpretation, there is nothing in the “grammatical and ordinary sense” or the statutory context of s. 487.02 which precludes its application to an accused in respect of his or her own case." (Para 8)

"I am similarly satisfied that Mr. Shergill’s assistance is reasonably required in order to give effect to the underlying authorization." (Para 9)

"I am satisfied, however, that if a Charter breach would crystalize in the act of issuing the order, then I must exercise my discretion not to issue it. [R. v. S.(R.J.), [1995] 1 S.C.R. 451, at para. 43 [hereinafter R.J.S.]; R. v. Jobin, [1995] 2 S.C.R. 78, at para. 35.] (Para 10)

Section 7 Right to Silence

"In R. v. White, [1999 CanLII 689 (SCC)] the Supreme Court of Canada outlined a three-stage approach to the assessment of whether there has been a violation of s. 7. The first stage asks if there is a real or imminent deprivation of life, liberty or security of the person, or a combination of these interests. If so, the second stage asks what principles of fundamental justice are at stake? And third, is the deprivation in accordance with the relevant principle or principles of fundamental justice? [White at para 38]" (Para 14)

"...the protection against self-incrimination can retain its force even where the content of the compelled communication is of no intrinsic evidentiary value. This is particularly so where, as here, that communication is essential to the state’s ability to access the evidence which they are “really after.” [R. v. Reeves, [2018] S.C.J. No. 56, at para. 30.] To paraphrase the Court in Reeves, to focus exclusively on the incriminatory potential of the password neglects the significant incriminatory effect that revealing the password has on Mr. Shergill. As the Supreme Court held in White:

The protection afforded by the principle against self-incrimination does not vary based upon the relative importance of the self-incriminatory information sought to be used. If s. 7 is engaged by the circumstances surrounding the admission into evidence of a compelled statement, the concern with self-incrimination applies in relation to all of the information transmitted in the compelled statement. Section 7 is violated and that is the end of the analysis, subject to issues relating to s. 24(1) of the Charter. [at para 70]" (Para 19)

"In my view, the more significant principle of fundamental justice at stake is the right to silence. This right emerged as a component of the protection against selfincrimination in R. v. Hebert in which McLachlin J. (as she then was), held:

If the Charter guarantees against self-incrimination at trial are to be given their full effect, an effective right of choice as to whether to make a statement must exist at the pre-trial stage… the right to silence of a detained person under s. 7 of the Charter must be broad enough to accord to the detained person a free choice on the matter of whether to speak to the authorities or to remain silent. [at para 56]

McLachlin J. also reaffirmed the Court’s prior holding that the right to silence was “a well-settled principle that has for generations been part of the basic tenets of our law.”"[at paras 9, 21] (Para 21)

"The “common theme” underlying the right to silence is “the idea that a person in the power of the state in the course of the criminal process has the right to choose whether to speak to the police or remain silent.”[Hebert at para 21] In tracing the history of the right, McLachlin J. referred to an “array of distinguished Canadian jurists who recognized the importance of the suspect’s freedom to choose whether to give a statement to the police or not” 20 and described the essence of the right to silence as the “notion that the person whose freedom is placed in question by the judicial process must be given the choice of whether to speak to the authorities or not.” [Hebert at para 42, 47-48] Finally, Hebert held that s. 7 provides “a positive right to make a free choice as to whether to remain silent or speak to the authorities.” [Hebert at para 54]" (Para 22)

"In short, I adopt the language of Iacobucci J. in R.J.S. where he concludes:

I think that derivative evidence which could not have been obtained, or the significance of which could not have been appreciated, but for the testimony of a witness, ought generally to be excluded under s. 7 of the Charter in the interests of trial fairness. Such evidence, although not created by the accused and thus not self-incriminatory by definition, is selfincriminatory nonetheless because the evidence could not otherwise have become part of the Crown's case. To this extent, the witness must be protected against assisting the Crown in creating a case to meet. [page 561] (Para 35)

"In my view the data on the Blackberry, which the police are only able to access and obtain if Mr. Shergill provides his password, is derivative evidence and must be protected by derivative use immunity in order for the proposed assistance order not to fall foul of section 7 of the Charter." (Para. 38)

"The force of the Supreme Court of Canada’s holdings in relation to the primacy of the pre-trial right to silence have persuaded me that the violation of Mr. Shergill’s liberty interests is simply not consistent with that central principle of fundamental justice. I am not satisfied that the immunity guarantees proposed by the Crown can compensate for this breach. Fundamentally, realistically and in any practical sense, granting this application would amount to a court order that Mr. Shergill provide information which is potentially crucial to the success of any prosecution against him, and which could not be obtained without the compelled disclosure of what currently exists only in his mind. It strikes at the heart of what the Supreme Court has held to be a foundational tenet of Canadian criminal law, namely, that an accused person cannot be compelled to speak to the police and thereby assist them in gathering evidence against him or herself." (Para 39)

"I accept that the current digital landscape as it relates to effective law enforcement and the protection of privacy presents many challenges. It may be that a different approach to this issue is warranted, whether through legislative initiatives or modifications to what I see as jurisprudence which is binding on me. But on my best application of controlling authority, I am simply not persuaded that the order sought can issue without fundamentally breaching Mr. Shergill’s s. 7 liberty interests, a breach which would not be in accordance with the principle of fundamental justice which says that he has the right to remain silent in the investigative context." (Para 51)

About the Author:

Pawel is a partner at Sitar & Milczarek. When he's not litigating he writes the Defence Toolkit blog.