The Defence Toolkit – January 30, 2021

This week’s top three summaries: R v Nelson, 2021 NSCA 11: prior #consistent statements, R v Settle, 2021 ABQB 40: prior #bad #character, and R v Paterson, 2021 SKCA 13: #police recording toileting.

R v Nelson, 2021 NSCA 11

[January 21, 2021] Limiting Crown Rehabilitation through Prior Consistent Statement – Not Recent Fabrication [Reasons by Duncan R. Beveridge J.A. with Wood C.J.N.S. and Derrick J.A. concurring]

AUTHOR’S NOTE: Defence counsel in sexual assault matters must often accuse complainants of fabricating their evidence when the account of the accused differ.  When this crosses over into a suggestion that the contrivance is “recent”, that is it occurred at some point after the event, the Crown normally can rehabilitate the complainant by leading evidence of a prior consistent statement, that predates the contrivance. However, when the Defence simply points out an inconsistency in a prior statement, the same rule does not apply.  That is, the Crown cannot lead evidence of prior consistency to somehow rebut the identified inconsistency. Here the Crown tried to lead a September statement where the complainant was consistent with her in-court testimony when the Defence successfully established inconsistency with a December statement.  The trial judge correctly shut down this avenue of re-examination.

Facts

[1] A trial judge acquitted the respondent because he found inconsistencies in the complainant’s evidence. The lack of a reliable narrative caused him to have a reasonable doubt. The Crown appeals.

[2] It claims two legal errors: the judge relied on inconsistencies which had not been established in the evidence; and, the judge improperly restricted the Crown’s re-direct examination.

[5] The Crown alleged sexual assault. The respondent admitted sexual activity occurred. The only live issue at the trial before the Honourable Justice Jamie Campbell was whether the Crown had proven beyond a reasonable doubt that the sexual activity was non-consensual. The eighteen-year-old complainant testified she did not consent.

[7] On September 17, 2014, the complainant accepted an invitation to meet the respondent at Ms. Downey’s apartment. Also present were Ms. Downey’s boyfriend, Santanio and her infant daughter. After they had gone to bed, the complainant and the respondent were alone in the living room.

[8] The complainant testified that the respondent forced her to engage in unprotected vaginal intercourse. She called her step-father the next morning. He took her to the hospital where she underwent a sexual assault examination.

[9] In cross-examination, differences emerged between her direct testimony, her police statements of September 29 and December 2, 2014, and her Preliminary Inquiry testimony.

[10] The only other witnesses at trial were the complainant’s step-father, a friend of the complainant with whom she had exchanged text messages, and the Sexual Assault Nurse Examiner (SANE). The respondent did not testify or otherwise call evidence.

[13] The judge observed that some of the inconsistencies in the complainant’s evidence were significant. The reasoning that led to the acquittal is summed up in these excerpts:

Inconsistencies can sometimes be characterized as trifling. These go to the heart of the accusations. It can seem overly technical to assess evidence for those kinds of inconsistencies. But they are the only protection that the accused really has. When the complainant gives evidence in a situation where only two people were present, the weight of that evidence has to be fairly addressed. If inconsistencies can be routinely dismissed as inconsequential, there’s little more that an accused person can do. The victim is not tested on the recall of details. But when evidence central to the charge is inconsistent in a number of insignificant [sic] respects, that can go to the reasonable doubt about the central issue of consent.

…

All told, though, there are inconsistencies in the evidence here that are not simply about minor details. They are relevant and relate to matters central to the incident.

To find someone guilty of a criminal offence, there has to be a reliable narrative. This narrative is so uncertain that it raises reasonable doubt as to the issue of consent.

[The Court of Appeal disposed of the Crown’s first ground of appeal by demonstrating actual inconsistencies were established. at paras. 28-34]

Restriction on Crown re-examination

[39] The Crown complains that the trial judge erred in law by restricting its right to re-examine the complainant on the contents of her prior consistent statement. Context is needed to understand the complaint and why I cannot agree the trial judge committed reversible error.

[40] In direct examination, the complainant testified when she arrived at Ms. Downey’s apartment on September 17, 2014, she and her daughter were the only ones present, and they talked for an hour-and-a-half before Santanio and the respondent arrived.

[41] Defence counsel referred the complainant to her December 2, 2014 statement. It is evident the complainant had told the police in that statement the respondent and Santanio were already present when she arrived. She offered she “had messed up on that” :

Q.        Okay.  So you were there for an hour and a half before Santanio and Mr. Nelson arrived.  You said that you had conversations.  You talked about things, correct?

A.        Yes.

Q.        Okay.  Can I bring your attention to page 18 on the same statement, 16 and 17, please?

A.        Okay, I messed up on that because he was not there when I got there.

Q.        Okay.  But what I respectfully submit, Ms. [K] is that …

A.        So I messed up on that.  That’s my bad.

Q.        That’s your bad.  So all of a sudden, they were already there when you got there.

A.        No, they weren’t.

Q.        No?  And do you think …

A.        They were in the Bean at someone’s house.

Q.        They were at the Bean.  So why would you tell police that they were there when they weren’t?

A.        Because I had so much running through my head at that time when I was giving statements, like …

[Emphasis added]

[42] The examination continued with the following:

MR. COADY: Ms. [K], I know this …

A.        Because you aren’t listening to what I’m telling you.

Q.        Ms. [K], I’m certainly listening but I’m just suggesting that there are some things that you said to police that are contradicting the evidence you’re giving today.  Would you agree with that?

A.        I don’t remember.  I just told you.  I need to go, man, like … (makes heavy breathing noise).

Q.        Okay.  And you had told police that when you got to the apartment that Santanio and my client were drinking and smoking dope, is that correct?

A.        (No response.)

Q.        I know this is difficult, Ms. [K], but did you …

A.        Like, how do you … (sighing).

Q.        Did you tell police that Santanio and my client were drinking and smoking dope?

A.        Yeah.

Q.        Okay.  Is that correct?

A.        Yeah, they were.

[43] Counsel then directed the complainant to her sworn direct testimony at the Preliminary Inquiry that no one was consuming any drugs such as marijuana.

[44]  Crown counsel rose to re-examine on two issues about the complainant’s prior statements.  Counsel started with the inconsistency between the complainant’s direct testimony and her December 2, 2014 statement about the presence of the respondent and Santanio when she first arrived at the Downey apartment.  Counsel referred the complainant to her September 29, 2014 statement.  While the complainant read her September statement, the trial judge asked if it was being put forward as a prior consistent statement.

[45] Counsel responded that she was clearing up the inconsistency.  The trial judge accepted it would be a permissible clarification if the complainant had corrected her inconsistency in the same December statement.  However, merely because she said something in September that is consistent with her in-court testimony did not change the fact of the inconsistency. [Emphasis by PM]

[46] Counsel argued the complainant’s December statement flowed from her September statement—it was one fluid story.  Crown counsel in fact continued her re-examination which elicited the content of the complainant’s prior consistent statement and her repeated explanation that she had “messed up” in the December statement:

Q.        So you agree that in this statement that you just read, you told the police that … and I’m just going to read this in.  The police say:  “Uh-huh.  So you were having this conversation with her at her apartment, is that right?”

And “her” meant Terrisha.

A.        Yes.

Q.        Okay.  “Yeah.”

A.        We were talking …

Q.        And then:  “Okay.  And who else is there when you guys got there, when you guys were talking?”

“It was just us and the baby.”

And then they ask:  “Okay.  You said that some other people came later on.”           

And then you say:  “Yeah, Santanio and that guy.”

A.        Meaning Harley.

Q.        Okay.  And so that’s the correct …

A.        Yes.

Q.        … statement.

A.        So I …

Q.        Okay.

A.        … messed up on the second one, sorry.

Q.        Okay.  Now on that same statement …

[Emphasis added]

[47] Defence trial counsel objected there was no flow from the prior statement, but two statements, months apart.  The trial judge ruled he was not satisfied it was a proper question.

[48] Crown counsel continued her re-examination on the inconsistency from the complainant’s Preliminary Inquiry testimony about drug consumption.  The complainant explained her Preliminary Inquiry answer was a “mishap”—she had thought the question referred to her drug consumption, not consumption by the others.

[49] There are two competing principles: the right of a party to re-examine on new matters brought out in cross-examination; and, the rule that prior consistent statements are presumptively inadmissible.

[50] These principles were reviewed in R. v. Evans, 1993 CanLII 102 (SCC), [1993] 2 S.C.R. 629.  A jury acquitted the appellant of first degree murder.  His gun had been used to kill the victim.  The appellant testified he had given the gun to the victim’s wife.  The defence theory at trial was that the wife had killed her husband and was attempting to blame the appellant for the murder.  In her police statement, she had told the police that the appellant fit the profile of the killer.  The Crown theorized it was improbable she would have named the appellant as a suspect as that would lead the police back to her.  The trial judge refused to permit re-examination about the contents of her police statement.

[51] The British Columbia Court of Appeal quashed the acquittal and ordered a new trial on the basis of the trial judge’s refusal to permit re-examination about the contents of her police statement.  By a majority judgment, the Supreme Court of Canada allowed the appeal and re-instated the acquittal.  Cory J., for the majority, reasoned:

[38] The issue is put very well by E. G. Ewaschuk in Criminal Pleadings & Practice in Canada, 2nd ed., in these words at p. 16.29, para. 16:2510:Questions permitted as of right on re-examination must relate to matters arising out of the cross-examination which deal with new matters, or with matters raised in examination-in-chief which require explanation as to questions put and answers given in cross-examination.Generally speaking, the right to re-examine must be confined to matters arising from the cross-examination. As a general rule new facts cannot be introduced in re-examination. See R. v. Moore (1984), 1984 CanLII 3542 (ON CA), 15 C.C.C. (3d) 541 (Ont. C.A.), per Martin J.A. In this case, the cross-examination of Linda Sample referred to her statements to police about the appellant. The police interview of December 30 was specifically alluded to during the cross-examination and had not been dealt with in-chief. It was in response to this cross examination that Linda Sample stated that, from the time of that meeting, she suspected the appellant of committing the crime. It would seem that the Crown had the right to re-examine Linda Sample as to precisely what she told the police at that time with regard to the appellant. It was a subject that had not been raised in the examination in chief but arose from the cross-examination. The trial judge erred in failing to allow re-examination on this point. [Emphasis in original]

[52] Despite the error, the acquittal was re-instated because it was not a significant error in light of the fact the police officer testified it was the victim’s wife who had volunteered the appellant’s name to the police.  The Crown failed to meet its heavy onus to establish that the verdict would not necessarily have been the same (para. 45).

[53] In this case, the Crown wanted to demonstrate the complainant had given a prior consistent statement.  Subject to very limited circumstances, prior consistent statements are not admissible in direct or re-examination. [Emphasis by PM]

[54] Establishment of prior inconsistent statements does not automatically justify proof of a prior consistent statement.  In R. v. Ellard, 2009 SCC 27, a Crown witness was cross-examined on prior inconsistent statements he had made.  The Crown was permitted to re-examine to establish a prior consistent statement.  The British Columbia Court of Appeal quashed the respondent’s murder conviction and ordered a new trial.  By a majority decision, the Supreme Court reversed and re-instated the conviction.

[55] Abella J., for the majority, agreed that the trial judge had erred by permitting the re-examination.  She explained:

[31] Having described the relevant context, the first issue is whether Ms. Bowles’ prior statements were admissible through re-examination. It is true that prior consistent statements are presumptively inadmissible (R. v. Béland, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398, at pp. 409-10, and R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5). The rationale for excluding them is that repetition does not, and should not be seen to, enhance the value or truth of testimony. Because there is a danger that similar prior statements, particularly ones made under oath, could appear to be more credible to a jury, they must be treated with caution.

[32]  Certain exceptions have nevertheless developed in the jurisprudence. In particular, where a party has made an allegation of recent fabrication, the opposing party can rebut the allegation by introducing prior statements made before the alleged fabrication arose, that are consistent with the testimony at trial. The allegation need not be express. It is enough if “in light of the circumstances of the case and the conduct of the trial, the apparent position of the opposing party is that there has been a prior contrivance” (Evans, at p. 643; see also R. v. Simpson, 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3, at p. 24).

[…]

[34]  In this case, the statements put to Ms. Bowles on re-examination were not made prior to the atmosphere of rumour and speculation that the defence claimed had led to her changed memory. As a result, their timing prevented them from being capable of rebutting an allegation of recent fabrication. The trial judge therefore erred in ruling that the re-examination was permissible on the basis of this exception. [Emphasis in original]

[56] Similarly, in R. v. Hunter (2004), 2004 CanLII 32107 (ON CA), 182 C.C.C. (3d) 121 (Ont. C.A.), the sole ground of appeal was the trial judge’s conclusion that the defence cross-examination on prior inconsistent statements opened the door to introduction on re-examination of prior consistent statements.  The Court, in an unanimous endorsement, rejected that blanket rationale but dismissed the conviction appeal because the appellant suffered no prejudice:

[5] We cannot agree that cross-examination on the alleged inconsistencies rendered admissible the contents of all prior consistent statements made by the complainant. Where evidence of a prior consistent statement is offered to support credibility, the trial judge must decide whether in all of the circumstances, evidence that the witness made the prior consistent statement could assist the trier of fact in making an accurate assessment of the witness’ credibility by removing potential mistaken impressions based on an incomplete picture of what the complainant had said or not said about the relevant events on other occasions. The trial judge must make this determination bearing in mind that normally the mere fact that a witness has made prior consistent statements is of no assistance in determining the credibility of that witness. The trial judge must also consider whether the admission of the prior consistent statement would unfairly prejudice the accused or unduly prolong or complicate the proceedings. Finally, the trial judge must decide, if he or she determines that evidence of the prior statement should be admitted, whether it is appropriate to admit all or part of the contents of the prior statement or to only allow counsel to lead evidence that a consistent statement was made on the prior occasion.[Emphasis added]

[57] That is not to suggest that absent an allegation of recent fabrication, a prior consistent statement can never gain admission on re-examination.  There may be circumstances where admission may be appropriate to ensure the trier of fact is not left with an incorrect impression.

[58] In R. v. Stiers, 2010 ONCA 382, the Crown convinced a trial judge to permit re-examination about a prior consistent statement on the basis of an allegation of recent fabrication.  Sharpe J.A., for the Court, rejected that premise but found no error.  After reference to the rehabilitative and explanatory purposes of re-examination, he reasoned it was appropriate to allow the re-examination to correct an erroneous impression left by the cross-examination:

[39] I do not agree with the characterization of the cross-examination as suggesting “recent invention” on Banwell’s part and, before us, the respondent did not seek to justify the re-examination on that basis. However, it is my opinion that the re-examination may be properly justified as having been linked to its rehabilitative and explanatory purpose and to the subject-matter on which the witness has been cross-examined. The cross-examination canvassed Banwell’s statements to the police in some considerable detail and suggested that Banwell had never told the police that he saw blood before he turned Ivancic over. This was not a full and accurate picture of the statements Banwell had made. In my view, the trial judge was entitled to conclude that the cross-examination had opened the door to the Crown’s request to put the September 27 statement to Banwell on re-examination, in order to avoid a situation where the jury would be left with a partial and misleading appreciation of the tenor of Banwell’s statements to the police on this crucial issue. I agree with the respondent that the re-examination was properly permitted to correct the erroneous impression, left after the cross-examination, that Banwell had never said he saw blood before rolling Ivancic over.

[40]  I am not persuaded that there was any error or trial unfairness arising from the re-examination and, accordingly, I would not give effect to this ground of appeal.

[Emphasis added]

See also: R. v. Royer (1995), 1995 CanLII 1174 (ON CA), 77 O.A.C. 309.

[59] I see no error in the trial judge’s determination about the prior consistent statement by the complainant, nor any prejudice to the Crown.  There was nothing about the circumstances surrounding the first or second statement that could justify further re-examination to provide important context or otherwise correct a wrong impression.

[61] Not only do I see no error, the impugned ruling or approach could not, in the concrete reality of this case, be said to come close to having had a material bearing on the acquittal (R. v. Graveline, 2006 SCC 16).

R v Settle, 2021 ABQB 40

[January 15, 2021] Bad Character Evidence Requires Voir Dire – Even in Criminal Harassment [Madam Justice Avril B. Inglis]

AUTHOR’S NOTE: Crown evidence often slips into leading bad character evidence in trials.  Whether this is through the slip up of police witnesses or even through the mention of the investigating unit’s name (like: the Gang Suppression Unit or the Serious Habitual Offender Program, fill in whatever over-the-top descriptor for a police unit you can think of).  Sometimes the nature of a charge being something that is repeated or in-between dates can contribute to this happening inappropriately.  Here, even defence counsel failed to notice it occurred. Criminal Harassment is an offence that typically has to have evidence of repeated conduct, but there is still a distinction between “repeated” conduct and other bad character evidence. That other evidence is only admissible after a voir dire establishes it is more probative than prejudicial (bad character evidence is presumptively inadmissible).  

Background

[2] The background to the charges is a challenging personal history between the appellant and the male complainant; the two lived in the same neighbourhood, knew each other through their children’s involvement with minor hockey, and engaged in a lengthy affair. The male complainant ended the relationship which allegedly was followed by lengthy harassment of both him and his spouse by the appellant. The date range of the offences alleged on the indictment is August 24, 2016 to September 11, 2017. At trial, evidence of interactions and events prior to that were led in evidence, including repeat police engagement with the parties leading up to the appellant’s arrest Sept 12, 2017.

Admission of prior bad act evidence without voir dire

[16] The trial court heard evidence of this appellant’s actions in relation to the two complainants that do not fall within the dates listed on the information. This included evidence of communications and conduct from the appellant as early as May 26, 2016, four months before the start of the charged period.

[17] The admissibility and purpose of this evidence was not addressed by either counsel. Crown counsel did not request a voir dire to determine the admissibility; Defence counsel did not object to it being offered, and specifically informed the trial judge that he expected the evidence to be led. Nonetheless, the appellant argues, the admissibility and purpose for calling the evidence needed to be judicially considered prior to a ruling of admissibility, even with the tacit agreement by defence counsel that the evidence was properly before the court.

[21] In this case, the trial judge did not make any ruling when defence counsel specifically announced that extended evidence of conduct of the accused would be led, or when evidence outside of the date range of the allegations before the court was actually presented. His reasons for conviction and subsequent decision did not clarify any of the three issues identified above.

[22] The respondent crown argues that the evidence was clearly admissible, given the nature of it and the charge before the court. The Criminal Code defines criminal harassment in this way:

264 (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them. (emphasis added).

[31] In R. v. Villeda, 2010 ABCA 351 (CanLII), [2010] A.J. No. 1330, the Court of Appeal considered the issue of similar fact evidence admitted at trial after the trial judge determined the alleged prior bad acts of the accused were relevant. The Court found the trial judge erred by failing to assess the prejudicial effect compared to the probative value of the evidence before admitting it. The Court of Appeal found that the evidence would not have been admissible had that weighing taken place:

In summary, to admit the evidence of bad character the trial judge was obliged to find that it was relevant to an issue at trial, outside of the appellant’s general character, and that its probative value in this regard outweighed its prejudicial effect. The trial judge did the former, but not the latter. The trial judge’s failure to consider and apply the correct legal test is an error to which principles of deference do not apply. Furthermore, it was not a harmless error because it is clear the evidence would not have been admitted if the trial judge had applied the proper test.

[33] In R. v. Sillipp (1997), 1997 ABCA 346 (CanLII), 120 C.C.C. (3d) 384 (Alta. C.A.); leave to appeal refused May 14, 1998: (S.C.C.), the court outlined the elements of criminal harassment. In that case, the crown had made a formal application to lead prior bad act evidence in the context of a similar fact evidence application. The trial judge then applied the analysis similar to that in Villeda and admitted most of the pre-charge evidence, noting it to be directly probative of most of the elements of criminal harassment.

[34] Many cases follow Sillipp, citing the elements of harassment listed by the Court and then also rely on previous bad act or similar fact evidence. Yet despite the frequency with which such evidence is admitted in the context of criminal harassment prosecutions, none cited by counsel on appeal show that such evidence was admitted except following a voir dire, which both determined the purpose of the previous act evidence and a correct analysis of the trial judge of the probative value compared to its prejudicial effect….

In a judge alone trial, a judge is not required to instruct herself in the same manner as she would instruct a jury. She is presumed to know the law: R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656 (S.C.C.) at pp. 664-65. The mere fact that the trial judge did not advert to the limitations on the use that could be made of the evidence of the Appellant’s prior conduct does not necessarily give rise to an inference that the evidence was misused. However, the failure to address those limitations in this case became important when the trial judge turned to whether the elements of criminal harassment had been proved.

The failure of the trial judge to make findings of fact in relation to the extensive evidence of prior discreditable conduct led by the Crown and to explain the use that she made of that evidence leaves the basis upon which an essential element of the offence was found to be established unclear, and leaves this court unable to meaningfully review whether the use of that evidence was restricted to the limited purposes for which it was admissible. Accordingly, the conviction for criminal harassment cannot stand.

[36] These same observations apply to the evidence and decision appealed here. Here, the trial judge outlined the evidence he received in chronological order, starting as early as February 2016. He described the many phone calls the complainants (particularly the female complainant) received from then up to the initial charged date in August 2016. He detailed the interactions the male complainant had with the appellant during that same time period. While he did note the dates of these events, he did not describe how he considered charged acts compared to uncharged acts alleged.

[37] This trial was similar to J.O.L., Linhares and Villeda. While a trial judge sitting alone is presumed to know the law and apply the law correctly, in those cases prejudicial evidence was led without explicit judicial assessment. Further, there is little if anything apparent on the trial record here that implies that the admissibility, purpose or probative value were explicitly determined prior to the court relying on this impugned evidence when convicting the accused. The particular issue of purpose is of specific concern, and is addressed in the next section.

Appeal ground #3: Blending the pre-charge evidence in final decision

[43] When the trial judge turned his attention to the elements of criminal harassment as outlined by Sillipp, he considered all of the evidence element by element. Addressing the first element – repeatedly following, communicating or besetting or watching a dwelling house or business – he summarized briefly the conduct he had thoroughly previously recited, beginning with the phone calls that started in the spring of 2016. He concludes the assessment of this element by noting “So is there conduct for part one of that test? Yes there is.”.

[44] This phrasing ties into the issue addressed in appeal ground #2, above. While the trial judge may well have considered the evidence carefully and not “convicted for uncharged acts” as alleged by the appellant, the articulated reasons are not clear on this point. His decision shows that he may well have relied on the actions of the appellant outside of the time frame as part of the acts for which she was convicted.

Remedy

[53] Criminal harassment is an offence that lends a prosecution most particularly to leading prior conduct evidence; however, the charge itself does not determine such admissibility. Trial judges must remain gatekeepers of evidence that is presumptively inadmissible. A voir dire is required to determine the admissibility of this type of evidence, its purpose, and to assess the probative value versus its prejudicial effect to the fairness of the trial. In this trial the evidence should have been received through a voir dire, and then if admitted the purpose for the evidence should have been explicit identified. Any subsequent reliance on said evidence must then have been explicitly restricted to that purpose.

The initial answer of the witness was unresponsive to the question although undoubtedly it was an innocent and instinctive act. While the cross examination by counsel for the accused compounded the error, and counsel for the accused is by no means blameless, this does not relieve the trial judge of his duty to exclude inadmissible evidence. In R. v. Ambrose (1975), 1975 CanLII 1434 (NB CA), 25 C.C.C. (2d) 90 (N.B.S.C., App. Div.), aff’d 1976 CanLII 201 (SCC), [1977] 2 S.C.R. 717, a Crown witness made an unresponsive statement on cross-examination by defence counsel who then invited the witness to repeat the statement rather than objecting immediately to the answer. I agree with the following statement of the Appeal Division, at pp. 91-92, with respect to the duty of a trial judge:

In a criminal trial there is a duty on the trial Judge to exclude inadmissible evidence even though adduced by counsel for the accused or not objected to, and should inadmissible evidence be adduced, the trial Judge should either instruct the jury immediately to disregard it or, if it is of so prejudicial a nature that the jury would not have the capability of disregarding it, he should discharge the jury and order a new trial.

[60] However, in this case the only remedy is a new trial. Even if this court could properly consider the admissibility and purpose of the pre-charge evidence, the initial conviction may well have rested on purposes other than those that are allowable. Further, it is possible that if the evidence had been formally admitted or potentially constrained, the evidence for the defence may well have been different. The way in which this impugned evidence was called may have potentially damaged the rest of the trial.

[61] From Villeda:

The admission of the evidence of the three alleged prior assaults placed the appellant in a difficult and unfair position. It forced him to give evidence, and it coloured the evidence which he gave. In R. v. S.(P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909, 64 C.C.C. (3d) 193, the Supreme Court held where similar fact evidence is improperly admitted, the appellant is entitled to either an acquittal, or a new trial, unless the remaining evidence would inevitably lead to a conviction. Although we are satisfied that a conviction is possible on the basis of the remaining evidence, ruling out an acquittal, we are not convinced a conviction is inevitable. It is necessary, therefore, to order a new trial. (paras 30-31)

[62] In the context of this appeal, it is impossible to rule whether or not that all of the evidence should have been admitted, that it was properly applied or that if it had not been admitted the remaining evidence would inevitably lead to a conviction. The appellant was potentially prejudiced by its receipt by the court. However, given the rest of the evidence which is not contentious, clearly there is a likelihood of conviction even without this pre-charge evidence, and as such an acquittal is not an appropriate remedy.

[63] This may seem contrary to the decision on the first ground, above, which found that the concession by the Defence to a Crown re-election did not require a remedy of this court. However, that issue was procedural and had a clear benefit to the accused. The evidentiary concession that followed was substantial in nature and of a particularly prejudicial nature to the accused. To side-step judicial assessment of the evidence has a much different effect on the trial as a whole, and the consent by counsel is insufficient to ensure that trial fairness had been achieved when leading this evidence.

[65] … A new trial is ordered.

R v Paterson, 2021 SKCA 13

[January 21, 2021] Charter s.8 – Video Recording of Toileting by Police at Station [Reasons by Ottenbreit J.A. with Barrington-Foote and Tholl JJ.A. concurring]

AUTHOR’S NOTE: There are many provincial court level decisions about the obvious s.8 Charter violation of video recording accused persons going to the toilet while in police custody. This case is remarkable for the level of court it managed to reach (its second appeal, being a summary conviction matter). The principles are well trodden, but well-explained and given additional weight due to the level of court.  The decision will provide useful ammunition for defence counsel when police fail to reform any of their practices in the future. The reasons provide a significant boost to the ability to obtain the remedy of a stay of proceedings where there are prior provincial court findings that this conduct constitutes a breach of s.8.

Facts and Background

[4] As a result of information received, members of the Regina Police Service [RPS] attended to an off-sale alcohol establishment in Regina. Outside of the location, the officers observed Ms. Paterson slumped over in the driver’s seat of a car. The car was not running. One of the officers opened the driver’s door and shook Ms. Paterson. She opened her eyes, but had trouble focusing. The officer arrested Ms. Paterson, who smelled of alcohol. When she left the vehicle, Ms. Paterson had difficulty walking.

[5] Ms. Paterson was taken to the RPS station and placed in a detention cell. While she was in the cell, she indicated that she needed to go to the bathroom. She was unable to do so by herself and was assisted by the two female officers who had arrested her. She fell down twice when she first attempted to use the toilet. Eventually, the officers had to physically support her as she got on and off the toilet.

[6] Like all other cells at the station, the cell in which Ms. Paterson was placed was monitored by a closed circuit television video camera attached to the ceiling near the door of the cell that captured nearly all of the cell area, including the toilet area. The video of the cell was sent to one of a bank of approximately 30 video monitors in the booking area of the station. This area was not open to the public and members of the public could not view the monitors. However, police officers and other detention staff who might enter the area could view them, although they were discouraged from congregating in the booking area when they were not required to be there for a specific purpose.

[7] No particular member of the detention staff had the job of actively monitoring the screens displaying the video, but the staff present did have a general obligation to monitor the screens at all times and at all times had the ability to do so. The video was in colour and equipped with sound, which assisted the detention staff in identifying whether a detainee was yelling or in distress.

[8] When Ms. Paterson used the toilet, the two police officers who assisted her did not take steps to shield her from the camera in her cell. Ms. Paterson made no attempt to cover herself when she was standing or when she was reaching for toilet paper. When Ms. Paterson rose with the assistance of the officers, her pants were lowered to above her knees and she was captured on video naked from about her navel to about her knees for a couple of seconds. Although the video capture depicted the entire cell, it was not focused on the toilet or on Ms. Paterson’s private area.

Analysis

[34] … The analysis conducted by the appeal judge on this issue is compelling and his conclusion is correct. Ms. Paterson’s s. 8 Charter rights were violated.

Did the appeal judge err by rejecting the trial judge’s analysis as to whether the Wildfong decision ought to have been known to the RPS so as to cause it to address its video surveillance practices?

[46] The trial judge, in her analysis of whether a stay should be imposed, was correct to note that even if the RPS was unaware of similar cases in the rest of Canada, Wildfong – the first similar Saskatchewan case – should have alerted the RPS to the issue of surveilling detainees going to the bathroom. I agree with her analysis. This case was four years prior to that of Ms. Paterson. The trial judge had no evidence before her that any effort was being made by the RPS to address the issue of privacy raised in Wildfong.

[47] In the absence of evidence to the contrary, the trial judge concluded that the failure of police forces in Saskatchewan to change their practices following Wildfong and the several decisions dealing with the same issue in Ontario reflected a lack of diligence. This was a reasonable inference considering four years had passed since Wildfong. In the circumstances, she appropriately noted that once the issue was raised, it should have been apparent to the persons responsible for police policies that changes needed to be made and that video recording persons using the washroom could constitute a serious invasion of their privacy and personal integrity.

[48] The appeal judge was wrong to draw the distinction that Wildfong was decided in Saskatoon and not Regina and involved another police force. Such distinctions are neither here nor there. Decisions of the trial courts have the same significance throughout the province. Nor is the fact identified by the appeal judge that this Court had not ruled on the privacy issue involved determinative. The absence of a ruling by this Court on any issue does not necessarily mean that police forces need not address legitimate issues identified by the trial courts. The question of whether they must do so depends on the circumstances including, but not limited to: the nature of the issue that has been decided; the level and number of courts that have addressed the issue; whether the issue has been fully argued; the extent to which the law could reasonably be characterized as unsettled; and the nature, cost and ability to carry out remedial action that would respond to the court’s decision.

[50] The appeal judge erred when he determined that the trial judge gave inordinate significance to the Wildfong case.

Did the appeal judge err in ruling that the trial judge entered a stay for a “punitive purpose” and did not consider whether a stay of proceedings was necessary?

[53] A review of the decision of the trial judge satisfies me that she did not misdirect herself on the law with respect to stays. She noted that a stay is only to be imposed in the clearest of cases, referring to R v Regan, 2002 SCC 12, [2002] 1 SCR 297. She also noted that the remedy was intended to be prospective, i.e., to ensure that the state misconduct in video recording persons using the toilet while in detention did not continue.

[55] Let me first address the use of the word assume by the trial judge when she found the police failure to provide extra privacy to detainees using the toilet was routine. The trial judge stated:

[34]      … What was apparent from [the officer’s] evidence was that there was simply no thought given to the fact that it was being videotaped and therefore I must assume that this is the routine practice for the treatment of detained individuals in the police station, not an isolated incident.

While the word assume might be somewhat awkward usage by the trial judge, when her analysis is read in context, I am certain that she used the word to mean infer. In short, this statement was an inference by her from all the evidence before her.

[56] That evidence was that the video monitoring system had been in place for eight to ten years, that every cell had a camera and that each camera recorded the entire cell in which it was placed and was recording at all times. The evidence was that the video from the cameras was fed to monitors. All of that looks very much like a system of continuous surveillance. Additionally, the trial judge had evidence that the officers helping Ms. Paterson were aware of the video surveillance when Ms. Paterson was using the toilet but that they made no effort to take extra measures to protect her privacy when doing so.

[57] As mentioned earlier, the Crown failed to call any evidence about the nature and extent of the video monitoring that was taking place when Ms. Paterson was placed into the cell or the length of time it had been in existence. There was also no evidence regarding what steps, if any, officers were instructed to take to afford detainees some privacy when using the toilet and what RPS policies regarding the issue were in place. On this latter point, all the trial judge had to consider was the behaviour of the police officers while assisting Ms. Paterson.

[58] In the absence of any such evidence before her that could address the foregoing issues, the trial judge was entitled to reasonably infer there had been a video system in place for a long time that captured detainees going to the toilet and, that being the case, the behaviour of the officer in not providing extra privacy to Ms. Paterson was routine. The appeal judge erred in concluding the trial judge was wrong to draw such an inference.

[59] The appeal judge also wrongly concluded that trial judge imposed a stay for punitive purposes as a result of the thoughtlessness of the officers. I see no indication of that. Her comments that once the issue was raised in Wildfong, it should have been apparent that changes needed to be made and her comments that the existence of other remedies did not rule out the imposition of a stay, do not suggest that the stay was punitive.

[63] As noted above, a decision to impose stay of proceedings is entitled to substantial deference and should only be interfered with where the lower court judge clearly misdirects him or herself as to the law, commits a reviewable error of fact or renders a decision that is so clearly wrong that it amounts to an injustice. I can find no such errors in the trial judge’s analysis and conclusion to impose a stay.