La pertinence d'une information à la base de motifs raisonnables d'un policier n'est soumise à aucune règle stricte de récence

R. v. Dionisi, 2012 ABCA 20

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[20]           We conclude that the trial judge erred in her approach as to whether there was a section 8 Charter breach in the first place. In a voir dire as to a section 8 Charter breach, the onus is not upon the claimant to merely show that there were defects in the ITO, the claimant must establish the breach of section 8 on a balance of probabilities. This can be done only by showing that it is likely that the search warrant would not have issued based upon the content of the ITO. It is not enough to persuade the trial judge that she would not have been inclined to issue the warrant on the grounds thus provided. The trial judge must be satisfied that the warrant is invalid, not that the trial judge would not have authorized it. The trial judge does not re-try the warrant: R v Schindler, 2001 ABCA 22, 277 AR 98 at para 18, citing R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992.

 

[21]           Even if it is established that there are flaws in the ITO, such as that information is inaccurate, or a material fact is not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions: see R v Pires, 2005 SCC 66 at para 30, [2005] 3 SCR 343. As the trial judge noted, the fact that the confirmatory information in the ITO related to details other than the actual observations of drugs in the house or the fact of appellant’s trafficking, that confirmation still has value on the totality of the circumstances: R v Caissey, 2007 ABCA 380 at para 23, 227 CCC (3d) 322, aff’d 2008 SCC 65, [2008] 3 SCR 451; R v Hillgardener, 2010 ABCA 80, 252 CCC (3d) 486. Here the ITO said that the informant had provided reliable information in the past and that he had been compensated for it, and also that he had a relationship with the handler. The fact that the informant had given specific details about non-offence particulars was still consistent with the informant providing information on which reliance could be placed. There would in such a context be support for the idea that the informant had no grudge against the appellant but a motive to work with the police.

 

[22]           The trial judge appears to have felt that the information from the informant might have been dated. There is no rule as to how recent information has to be in order to be relevant. In any event, the ITO alleged the information in the present tense. These averments provided no room for the conjecture that the information provided was not recent enough to be relevant. The trial judge also speculated as to whether the information provided by the ITO was information that the informant learned rather than seeing personally. An ITO is to be read in a practical, non-technical, common-sense basis: see R v Whitaker, 2008 BCCA 174 at paras 41-42, 254 BCAC 234, leave refused [2008] 3 SCR x. There was no foothold for the assumption that the information was second-hand. Even if it were second-hand, the police experience with the informant was such that his information had been found to be reliable in the past.

[23]           More generally, it would not be correct for a trial judge to assume that any observations made by that trial judge as to possible questions about the content of the ITO from looking at the text would be such as would have escaped the notice of the authorizing judge. For example, at one point she questioned whether the grammar in the ITO was identifying more than one informant. This court does not share her concern in that respect, but in any event the law does not assume that the trial judge is smarter than the authorizing judge in that sense. Rather, the search warrant is presumed to be valid: R v Pitre, 2011 NBCA 106 at para 34 citing Quebec (Attorney General) v Laroche, 2002 SCC 72 at para 68, [2002] 3 SCR 708.

 

[24]           The case law has said repeatedly that the function of the trial judge is not to substitute her opinion for that of the authorizing judge: R v Campbell, 2011 SCC 32 at para 14, [2011] 2 SCR 549 (“The question for a reviewing court is ‘not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence’ to permit an issuing justice to authorize the warrant (Morelli, at para. 40).”). Also see R v Lee, 2011 ABCA 310 at para 14 (“ The function of the reviewing judge is not to conduct a rehearing; rather, that judge should not interfere if the authorizing judge could have granted the authorization: R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 at 1452, 60 CCC (3d) 161; R v Araujo, 2000 SCC 65, [2000] 2 SCR 992 at 1016‑1017.”).

 

[25]           A search warrant should issue only on a credibly-based probability, having regard to the whole of the circumstances, but as pointed out in Lee:

 

15        The proof sufficient to meet the standard of credibly based probability is whether the totality of the relevant circumstances support the inference. Here the appellant invites us to examine individual circumstances in isolation, and suggests other inferences are possible. We are satisfied that a collective assessment of the circumstances supports the finding of the reviewing judge that there was sufficient evidence that the authorizing judge could properly have granted the search warrant in this case.

 

[26]           The Court in Pitre explained that it is not for the trial judge to decide if the warrant would have necessarily issued on the ITO, but whether it could have been authorized by a judge acting judicially: see likewise R v Ebanks, 2009 ONCA 851, 249 CCC (3d) 29 at paras 21, 33. (Ebanks was applied by ONCA majority in its decision later affirmed in Campbell.) It is apparent from the reasons of the trial judge, notably at paras 35 to 37, that she adopted a totality test, contended for by counsel for the appellant, that the ITO had to provide “compelling” information. Her concerns about the conclusory nature of what the ITO contained overlooked the specific detail of the manner and price at which the appellant allegedly was selling cocaine. The suggestion that this may be “mere rumour or gossip” is not grounded in anything but the argument of counsel. She dismissed the averments about the 2004 incident as unhelpful. She concluded her analysis with the observation that “I find that the edited ITO contains insufficient grounds ...” by reference to the “compelling” test. That was not the question. The question was whether no judge, acting judicially, could have chosen to grant the authorization on the information remaining after redaction.

La règle des confessions dérivées vue par la Cour d'appel de l'Ontario

R. v. M.D., 2012 ONCA 841

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[53]      The derived confessions rule is a common law rule that governs the admissibility of a confession that has been preceded by an involuntary, thus inadmissible confession. The derived confessions rule is not a per se or bright line rule that excludes all subsequent confessions on the ground that they are tainted, irrespective of the degree of their connection to the prior inadmissible statement: R. v. I (L.R.) and T. (E.), 1993 CanLII 51 (SCC), [1993] 4 S.C.R. 504, at p. 526; and R. v. Hobbins, 1982 CanLII 46 (SCC), [1982] 1 S.C.R. 553, at p. 558.

[54]      To determine whether a subsequent statement will be excluded under the derived confessions rule because of the taint left by its involuntary and thus inadmissible predecessor, a trial judge must examine all the relevant circumstances to determine the degree of the connection between the two statements: T. (E.), at p. 526.  The Supreme Court of Canada has set out some of the relevant circumstances or factors to consider in determining the degree of connection between the two statements, and thus the influence of the antecedent taint: see T. (E.), at p. 526; Hobbins, at p. 558; and R. v. G. (B.), 1999 CanLII 690 (SCC), [1999] 2 S.C.R. 475, at para. 21. These include but are not limited to:

•                    the time span between the statements;

•                    advertence to the earlier statement during questioning in the subsequent interview;

•                    discovery of additional information after completion of the first statement;

•                    the presence of the same police officers during both interviews; and

•                    other similarities between the two sets of circumstances.

 

[55]      The application of these factors will render a subsequent statement involuntary if either the tainting features that disqualified the first continue to be present, or if the fact that the first statement was made was a substantial factor that contributed to the making of the second statement: T. (E.), at p. 526; G. (B.), at paras. 21 and 23. It will generally be easier to establish that tainting affected the first when both these conditions are present. In the end, however, what matters most and mandates exclusion is that the connection is sufficient for the second to have been contaminated by the first: G. (B.), at para. 23.

[56]      The inquiry required when the derived confessions rule is invoked to exclude a subsequent statement is essentially a causation inquiry that involves a consideration of the temporal, contextual, and causal connections between the proffered and earlier statements: R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 46. The inquiry is a case-specific factual inquiry: R. v. Simon, 2008 ONCA 578, 269 O.A.C. 578, at para. 69.

[57]      Despite its origins as a common law rule where lack of voluntariness is the contaminating factor, the derived confessions rule is of more general application.  The contaminating factor may be constitutional infringement, say a breach of s. 10(b) of the Charter. There, the subsequent statement is tainted if the breach and impugned statement can be said to be part of the same transaction or course of conduct. The admissibility analysis in these cases is performed under s. 24(2) of the Charter: R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; Simon, at para. 69; and Plaha, at paras. 42-45.

[58]      The derived confessions rule may also be engaged where the contaminant in the prior statement is a failure to comply with s. 146(2) of the YCJA, or its predecessor, s. 56 of the Young Offenders Act, R.S.C. 1985, c. Y-1, as repealed by Youth Criminal Justice Act, S.C. 2002, c. 1: T. (E.), at p. 527; R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, at para. 28.

[59]      To determine whether the derived confessions rule will warrant exclusion of a subsequent statement, a trial judge must follow a contextual and fact-based approach: S.G.T, at para. 29. The nature of the inquiry and the findings required in the derived confessions analysis have implications for the scope of appellate review. The admissibility of a confession that has been preceded by an involuntary (or otherwise) inadmissible confession, in other words, the application of the derived confessions rule, involves a factual determination based on factors designed to ascertain the degree of connection between the two statements: T. (E.), at p. 526. This determination, like a determination of whether a statement is voluntary or compliant with s. 146(2) YCJA, is largely a question of fact. Appellate review of the judge’s decision is limited to deciding whether the judge erred in her assessment of the evidence, failed to consider relevant circumstances, or failed to apply the correct principles: T. (E.), at p. 526; R. v. McIntosh (1999), 1999 CanLII 1403 (ON CA), 141 C.C.C. (3d) 97 (Ont. C.A.), at paras. 21-22.

Les limites de l'interventionnisme judiciaire : comment l'usurpation du rôle d'avocat par le juge détruit l'apparence d'équité d'un procès selon le critère de l'observateur raisonnable

R. v. Stucky, 2009 ONCA 151

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1)        The role of a trial judge

[61]         The role of a trial judge is often very demanding, owing not only to the inherent nature of the case, but also to the particular conduct of the litigants: R. v. Brouillard, 1985 CanLII 56 (SCC), [1985] 1 S.C.R. 39, at p. 42.  In the case at bar, the trial lasted 69 days and involved the examination of multiple witnesses, including experts and the accused himself.  Notwithstanding the length and complexity of a particular trial, a trial judge must exercise restraint and maintain impartiality so as to act within the scope of his or her neutral role.  As cautioned by Lamer J. in Brouillard, at pp. 42-43:

Like anyone, a judge may occasionally lose patience.  He may then step down from his judge’s bench and assume the role of counsel.  When this happens, and, a fortiori, when this happens to the detriment of an accused, it is important that a new trial be ordered, even when the verdict of guilty is not unreasonable having regard to the evidence, and the judge has not erred with respect to the law applicable to the case and has not incorrectly assessed the facts.

The reason for this is well-known.  It is one of the most fundamental principles of our case law [citation omitted]

… that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

[62]         The principles that limit the permitted interventions by trial judges during the course of a trial and, specifically, during the examination-in-chief and cross-examination of witnesses, are well established.  We review them below.

2)        Permitted interventions by a trial judge

 

[63]         In Brouillard, at p. 44, Lamer J. acknowledged that a trial judge may intervene to ask questions, and, where necessary, he or she has a duty to ask questions where justice requires it.  However, at the same time, he expressly warned that there are definite limits on this right: Brouillard at p. 46.  A trial judge “should confine himself as much as possible to his own responsibilities and leave to counsel…[his or her] function”: R. v. Torbiak and Campbell (1974), 1974 CanLII 1623 (ON CA), 18 C.C.C. (2d) 229 (Ont. C.A.), at pp. 230-231.

[64]         In R. v. Valley (1986), 1986 CanLII 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 230, leave to appeal refused, [1986] 1 S.C.R. xiii, Martin J.A. set out three situations in which questions put by a trial judge to a witness may be justified, namely: to clear up ambiguities and call a witness to order; to explore some matter which the witnesses’ answers have left vague; or, to put questions which should have been asked by counsel in order to bring out some relevant matter, but which were nonetheless omitted.  He noted, however, that questions put by a trial judge to a witness should generally be put after counsel has completed his or her examination of the witness and, further, that the witness should not be cross-examined by the trial judge during examination-in-chief: Valley at p. 230.  These comments provide guidance as to the timing and nature of interventions that a trial judge may make.

[65]         The first two situations of permitted interventions by the trial judge set out in Valley are self-explanatory.  The third situation in which a trial judge is permitted to intervene, namely, to ask questions that should have been asked by counsel, is not an open-ended invitation to the trial judge to usurp the role of Crown counsel.  The judge cannot leave his or her position of neutrality as a fact-finder and become the cross-examiner: R. v. W.(A.) (1994), 1994 CanLII 218 (ON CA), 94 C.C.C. (3d) 441 (Ont. C.A.) Brooke J.A. in dissent, reversed for the reasons given by Brooke J.A., 1995 CanLII 83 (SCC), [1995] 4 S.C.R. 51.

[66]         Where the appearance of fairness is not maintained at trial, the verdict reached cannot stand and a new trial must be ordered.  In deciding whether or not the appearance of fairness has been compromised, one factor that warrants consideration is whether the trial judge gave counsel an opportunity to ask questions that arise out of the trial judge’s questioning of a witness, in particular, the accused.  An additional factor is whether counsel objected to the trial judge’s questioning of a witness.  The absence of an objection, however, is not in itself determinative.

[67]         We turn now to the test for determining when this unfairness threshold is met.

3)        The test for determining whether the trial judge’s interventions have compromised the appearance of trial fairness

[68]         The test is an objective one.  As stated by Martin J.A. in Valley, at p. 232:

The ultimate question to be answered is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial. [Emphasis added.]

[69]         The appearance of fairness and the trial judge’s corresponding duty to exercise restraint and remain neutral is especially critical in the criminal context where the accused takes the stand: Brouillard at p. 48.  Since a criminal trial is an adversarial process between the prosecution and defence, and not an investigation by the trial judge, the examination and cross-examination of witnesses is, for the most part, the responsibility of counsel: Valley at p. 231.  Although the trial judge is justified in occasionally intervening for one of the legitimate purposes indicated above, the trial judge must be careful not to usurp the role of counsel because otherwise the overall impression created may be fatal to the appearance of trial fairness.

[70]         The effect of interventions by the trial judge on the appearance of trial fairness in a given case must be assessed in relation to the unique facts and circumstances of the particular trial: Valley at p. 231, citing Torbiak at p. 231. 

[71]         In Valley at pp. 231-32, Martin J.A. listed types of interventions by trial judges which have resulted in the quashing of criminal convictions:

1.         Questioning an accused or a defence witness to such an extent or in a manner which conveys the impression that the trial judge has placed the authority of his or her office on the side of the prosecution and conveys the impression that the trial judge disbelieves the accused or the witness;

2.                  Interventions which have effectively made it impossible for defence counsel to perform his or her duty in advancing the defence; and

3.         Interventions which effectively preclude the accused from telling his or her story in his or her own way.

[72]         Interventions by a trial judge which can reasonably be said to create the appearance of an unfair trial may be of more than one type, and trial fairness may be undermined by one or more types of interventions: Valley at p. 232.  However, it is important to emphasize that no trial is perfect.  Accordingly, the record must be assessed in its totality and the interventions complained of in a given case must be evaluated cumulatively, not as isolated occurrences, from the perspective of a reasonable observer present throughout the trial.  As stated by Doherty J.A. in R. v. Stewart (1991), 1991 CanLII 11753 (ON CA), 62 C.C.C. (3d) 289 (Ont. C.A.), at p. 320:

It is a question of degree.  At some point, incidents which, considered in isolation, may be excused as regrettable but of no consequence, combine to create an overall appearance which is incompatible with our standards of fairness.

Les directives au jury concernant le comportement postérieur au fait doivent adopter une approche fonctionnelle qui balise clairement les usages permis et prohibés de cette preuve circonstancielle afin d'en prévenir les risques d'inférence

R. v. Wood, 2022 ONCA 87

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[115]   Well-established precedent governs our evaluation of the merits of this ground of appeal which alleges non-direction jury instructions about evidence of after-the-fact conduct.

[116]   Our approach when asked to review the adequacy of jury instructions is functional. We examine the instructions as a whole to determine whether, in the context of the entire trial, those instructions enabled the jury, as the trier of fact, to decide the case in accordance with the law and the evidence admitted at trial. The jury must be properly, but need not be perfectly instructed. The overriding question is whether the instructions, taken as a whole, properly equipped the jury to decide the case, despite the absence of instructions now said to have been required but omitted in error: Calnen, at paras. 8-9.

[117]   Final instructions to the jury need not follow a particular formula. The words used, the sequence followed, and related considerations fall within the discretion of the trial judge. What matters is the general sense which the words used must have conveyed, in all likelihood, to the minds of the jury: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 30; Calnen, at para. 8.

[118]   In addition to these general principles, a wealth of precedent describes what is necessary in final instructions about evidence of after-the-fact conduct.

[119]   Evidence of after-the-fact conduct is neither more nor less than circumstantial evidence. As circumstantial evidence, it allows the trier of fact to draw inferences. Those inferences are based on logic, common sense and human experience. The inferences must be reasonable according to the measuring stick of human experience and will depend on the nature of the conduct, the inferences the proponent seeks to have drawn from it, the positions of the parties and the totality of the evidence: Calnen, at paras. 111-112 (per Martin J., dissenting, but not on this point); R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at paras. 100-101.

[120]   As with any item of evidence adduced at trial, evidence of after-the-fact conduct may be relevant to and admissible for a particular purpose or more than one purpose, but not for another or other purposes. In a jury trial, the trial judge should identify for the jury the permitted and prohibited purposes for which the evidence of after-the-fact conduct may be used and that or those for which it cannot be used. The language used to provide this instruction need not follow a particular formula: Calnen, at para. 113, per Martin J. (dissenting, but not on this point); McGregor, at para. 105.

[121]   Typically, a jury instruction about the use of evidence of after-the-fact conduct in reaching a verdict has three components:

i.     identification of the evidence as after-the-fact conduct;

ii.   a description of the permitted use of the evidence; and

iii.   a description of the prohibited use of the evidence.

See, Calnen, at para. 42; McGregor, at para. 106. Failure to provide an express instruction about the permitted and prohibited uses of this evidence is not always fatal: R. v. Adamson, 2018 ONCA 678, 364 C.C.C. (3d) 41, at para. 65; Calnen, at para. 5.

[122]   Where it is admitted, evidence of after-the-fact conduct may present some unique reasoning risks. It often consists of things done and said at a time that is temporally remote from the events that form the subject matter of the charge. This may make it more difficult to draw an inference about the prior conduct by invoking retrospective reasoning. The evidence may also appear more probative than it actually is. It may be inaccurate. It may encourage speculation, give rise to imprecise reasoning, and abet decision-makers in reaching immature conclusions. As an antidote, judges instruct jurors to take into account alternative explanations for the conduct before coming to any conclusion about the persuasive force of the evidence: Calnen, at paras. 116-117, per Martin J. (dissenting, but not on this point); McGregor, at paras. 107-108.

[123]   Among the issues upon which evidence of after-the-fact conduct may be relevant and admissible is proof of an accused’s mental state or intent when engaging in conduct that forms the subject matter of the charge. This includes distinguishing between different levels of culpability: Calnen, at para. 119, per Martin J. (dissenting, but not on this point). For example, an accused’s efforts at concealment may support inferences that:

i.     the accused was acting unlawfully when they engaged in conduct that forms the subject matter of the charge; and

ii.   the accused was attempting to hide the extent of the crime, for example, in a homicide case, the nature and extent of the deceased’s injuries, thus the force required to inflict them, and further, the state of mind that accompanied their infliction.

See, Rodgerson, at para. 20.

[124]   A final point concerns the standard of proof.

[125]   As an item or series of items of circumstantial evidence, this evidence is not subject to the criminal standard of proof except where it is the only evidence available to establish an essential element of the offence or the offence as a whole: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 39 (“White 1998”); R. v. Morin, [1998] 2 S.C.R. 345, at p. 354.