Canadian Criminal Appeals - Week of August 10, 2020

Case:

In R v Hudson, 2020 ONCA 507 the ONCA (per Tulloch JA) addressed the admissibility of recognition evidence under the “prior acquaintance/better position” test (described in R v Brown, coined in R v Berhe but traced back to R v Leaney). The appellant’s conviction for aggravated assault rested, in part, on the testimony of two police officers who purported to identify the appellant on video surveillance which captured, among other things, the stabbing incident itself. The ONCA found that, although it was “certainly a borderline case”, it was not unreasonable for the trial judge to admit (and rely on) the evidence of one of the officers whose prior acquaintance included involvement in “two prior investigations of the appellant” and observing the appellant “in court for the most part of a day” (39 & 45). The trial judge, however, erred in admitting (and relying on) the evidence of the other officer because he had “no confirmed history of prior interactions” with the appellant nor was there any evidence that he had seen the appellant in the community; previously seeing the appellant’s name and face on police databases was “insufficient to establish a level of familiarity that would enable [the officer] to provide valuable and otherwise unavailable information to the trier of fact” (40-44). However, because the trial judge had independently concluded (re R v Nikolovski) that he was “not left in reasonable doubt that the defendant and suspect are one and the same”, the ONCA held that his reliance on the inadmissible recognition evidence was“harmless”/“not significant” (despite being described by the trial judge as “[o]f particular significance”)(46-47, 49). Although the Crown “did not explicitly invoke the curative proviso in either its factum or in oral argument” and “[w]ary that it is not the role of an appellate court to raise the curative proviso on its own motion”, the ONCA held that “the substance of the Crown’s position […] amounts to an implicit invocation of the proviso”(49). NB: The “high quality” of the video evidence, “which…permitted such an identification without reliance on additional evidence” (43), distinguishes this case from the ONCA’s decision in R v MB, 2017 ONCA 653 (39-43).

In R v Drury, 2020 ONCA 502 the ONCA (per Watt JA) allowed the appeal and ordered a new trial in relation to a conviction for child luring [s. 172.1(1)(b)], etc. The trial judge found the appellant guilty on two basis that, post-Morrison, were “now closed to traffic”: the presumption of belief based on represented age under s. 172.1(3) (which is now unconstitutional); and the failure to take reasonable steps under  s. 172.1(4) (which cannot, per se, prove that the appellant believed that the fictional recipient,“Tiffany”, was underage) (37-40, 53-60). The trial judge’s findings “on these basis can no longer stand” (“that was then and this is now”) and the curative proviso was “not up to the task” to save the conviction given that the errors were not harmless and the evidence of guilt was not overwhelming (65-67). NB: Holding that it was not enough to prove that the appellant “hoped” or “even suspected” that “Tiffany” was under 16, the ONCA confirmed Morrison (albeit without reference to Carbone) that the Crown was required to prove that the accused believed (or was wilfully blind) that “Tiffany” was underage; recklessness is insufficient (51-52, 60).

In R v JJP, 2020 YKCA 13, the YKCA (per Fitch JA) thoroughly dismissed the Crown’s appeal of its unsuccessful dangerous offender application. Among other things, the trial judge did not err in considering the offender’s apology, elicited by s. 726 of the Code, as some evidence relevant to his treatment prospects (albeit in the overriding context of the forensic expert having opined that the offender was a “ good candidate for risk management in the community”) (14 & 30, 52-60). NB: The YKCA also dismissed the offender’s appeal finding him a long‑term offender; even if the trial judge “did not express himself … as clearly as he might have wished” on the burden of proof, the YKCA was “not persuaded there is a reasonable possibility that the judge would not have found [the offender] to be a long‑term offender but for the error” (76-77, 81-82). In the dangerous/long term offender context the power to dismiss an appeal despite an error “mirrors, in some respects, the operation of the curative proviso set out in s. 686(1)(b)(iii)”.

Ryan Clements