Canadian Criminal Appeals - Week of June 29, 2020

Cases:

In addition to a couple of brief appeals with predicable results - R v Vickerson, 2020 ONCA 434 (it is unfair to convict a self-represented accused who was only able to access and review disclosure after it was entered as an exhibit in his trial) and R v Dhaliwal, 2020 MBCA 65 (it may be an error to give enhanced credit for pre-sentence custody where the enhanced credit would result in the loss of the right of appeal against inadmissibility under IRPA) - there were some other noteworthy matters from this week dealing with errors in the assessment of credibility, the mens rea for possession and prior consistent statements.

In R v SSS, 2020 BCCA 180 the BCCA (per Groberman JA) allowed a conviction appeal - in relation to historical sexual offences against the appellant’s granddaughter - on the basis that the trial judge (“TJ”) committed errors in the assessment of the appellant’s credibility. The key concern was that the TJ found that the appellant’s evidence on a specific issue (ie how often his wife was hospitalized) to be truthful and that the complainant’s evidence on that same issue was not truthful; yet, the TJ went on to find that the appellant’s credibility was undermined because, inter alia, it was “externally inconsistent” with the complainant on this very issue! This was “obviously” an error and because the TJ’s “bases for finding the complainant to be credible and for finding the appellant not to be credible were quite narrow”, the BCCA was not able to treat this error as harmless; indeed, it was “central to the judge’s credibility assessment” (27-32, 66-69).

Given this result, the BCCA did not need to comment on the uneven scrutiny/assessment ground but it did so anyway, noting “significant concerns” that the TJ applied an “unforgiving approach” to the appellant’s evidence, yet “swept aside, without analysis, inconsistencies in the complainant’s evidence” (72-73). Moreover “[w]hile the judge was mindful of the specific difficulties in assessing the evidence of a child, she does not appear to have considered the difficulties that an elderly witness who is in poor health faces, both in terms of recollection of events and in terms of expressing themselves” (72).

NB: Another sexual assault conviction appeal was allowed this week because of “errors in respect of the assessment of the appellant’s credibility”: R v AK, 2020 ONCA 435. In that case the TJ relied “on factors that could not reasonably negatively impact on the appellant’s credibility” (28).

In R v Stewart, 2020 ABCA 252 the full court confirmed Blondin and its progeny that someone is properly found guilty of possessing a more serious drug (eg cocaine) even though they honestly believed that they were possessing a less serious drug (eg marihuana): the appellant’s “knowledge that she was in possession of marijuana was sufficient to sustain the mens rea on the count of possession of cocaine” (21-33). In doing so, the full court rejected the appellant’s argument that, in such circumstances of an accepted honest but mistaken belief, the Crown must prove deliberate ignorance about the cocaine in order to ground liability: “wilful blindness is not required to sustain a conviction, provided that the accused knew that he or she was in possession of a controlled substance” (30).

Fortunately, two justices (Greckol, Pentelechuk JJA) wrote separately to confirm that “the law is not necessarily indifferent to an individual who mistakenly commits a more serious offence than intended” and that “[t]he outlet for any such sympathy has been found in sentencing” (51). In other words, “[a] mistaken belief that one is transporting marijuana rather than cocaine, though irrelevant to conviction, can be highly relevant to the sentence imposed” as “a significant mitigating or extenuating factor in sentencing” (52-53). The majority sustained the trial judge’s finding that the appellant “lacked actual knowledge of the cocaine and was not wilfully blind to its presence” in the circumstances of this case: the appellant was a drug mule who had a history of transporting one drug (marijuana) for the same person and was given no reason to think that a second drug (cocaine) might also be present (57-60).

NB: Of course, even though the mens rea for possession may be satisfied on the basis of knowledge of a controlled substance, the Crown still has to prove the existence of the particularized controlled substance: R v Saunders, [1990] 1 SCR 1020.

In R v DK, 2020 CanLII 43128 the SCC denied the Crown leave to appeal 2020 ONCA 79 (per Trotter JA) which held that the TJ improperly relied on the complainant’s prior consistent statement. This is a confounding case for a couple of reasons but most notably because the Crown initially (and accurately) argued that the prior consistent statement was admissible for the purpose of rebutting an allegation of recent fabrication (27-32). According to the ONCA, however, the Crown’s position changed in closing where it argued that the statement was admissible as a “spontaneous utterance” or as “part of the narrative of disclosure” (33). Even though the prior consistent statement was admissible to rebut an allegation of recent fabrication, it was not admissible in this case as “pure narrative” or as “narrative as circumstantial evidence”, and certainly not for a hearsay purpose (34-43). Ultimately, it was “difficult to discern the precise use” that the TJ made of the complainant’s prior statement and, as such, the TJ failed to properly explain how this statement “greatly” assisted in assessing credibility and reliability (43-47).

A trial judge faced with an application to admit and use a prior consistent statement for a purpose other than rebutting an allegation of recent fabrication would be well advised to repeat as a mantra Justice Doherty’s concurring judgment in R v Khan, 2017 ONCA 114 at 58-65; DK, at 44-45. I wonder whether the Crown in DK actually abandoned recent fabrication as a basis for admission given that it wrote “part of the narrative of disclosure”. But I acknowledge that the Crown’s approach - and the TJ’s analysis - was sufficiently confusing to warrant a new trial. To be sure this nebulous area of law seemingly creates a lot of confusion and error: see R v GJS, 2020 ONCA 317; R v DC, 2019 ONCA 442; R v AS, 2020 ONCA 229.

NB: DK contains a helpful discussion about the operation of the collateral fact rule and s. 278.2 of the Criminal Code (60-73). See also my previous post on a related topic.

Ryan ClementsComment