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Criminal - Historical Proceedings. R. v. Rees
In R. v. Rees (Ont CA, 2025) the Ontario Court of Appeal considered a further (and much later) appeal emanating from "a referral by the Minister of Justice, made pursuant to s. 696.3(3)(a)(ii) ['Applications for Ministerial Review — Miscarriages of Justice - Powers of Minister of Justice'] of the Criminal Code", which - after much incarceration - set aside a conviction for second degree murder, and ordered a new trial.
The court considers this 'old' appeal on the issue of non-disclosure, where the law has changed much over the past over 30 years:a. The legal framework for the right to disclosure
[101] The right to disclosure is only one facet of the right to make full answer and defence. As such, a breach of the right to disclosure does not, in and of itself, mean that the Charter right to make full answer and defence has been violated. As noted in R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 23, “[t]he initial test which must be met in order to establish a breach of the right to disclosure is analytically distinct from the burden to be discharged to merit the remedy of a new trial.”
[102] Therefore, when we evaluate allegations of historical non-disclosure raised on an appeal from conviction, the fact that the material should have been disclosed at the time does not, on its own, necessarily mean that there has been a breach of the right to make full answer and defence. When looking at these matters ex post facto, as we are in this case, we must consider the impact of the failed disclosure on the reliability of the result of the trial and the overall fairness of the trial. Accordingly, despite a failure to disclose something that should have found its way to the defence, we must ask on appeal from conviction whether the non-disclosure resulted in prejudice: Dixon, at para. 23.
[103] In sum, the appellant bears the onus of establishing on a balance of probabilities that: (a) the prosecution failed in its disclosure obligations, as they existed at the time of the trial; and (b) there exists a “reasonable possibility” that the non-disclosure affected the outcome at trial or the overall fairness of the trial process: Dixon, at paras. 20-23, 31-36; R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 71. The “reasonable possibility” test “strikes a fair balance between an accused’s interest in a fair trial and the public’s interest in the efficient administration of justice”: Dixon, at para. 34.
[104] As underscored by Cory J. in Dixon, a reasonable possibility that the non-disclosure affected the outcome or the overall fairness of the trial process cannot be rooted in speculation: at para. 34. Rather, it must be the result of exploring whether there would have existed “reasonably possible uses of the non-disclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the non-disclosure”: Dixon, at para. 34 (emphasis in original). The appellant emphasizes that this test incorporates reasonable avenues of further investigation alongside other possible uses of the non-disclosed evidence, including the ability to use it in raising a doubt as to the credibility of the theory put forward by the Crown and impeaching the credibility of Crown witnesses: Taillefer, at para. 29.
[105] How is the issue of non-disclosure to be approached 35 years later? In a “time-sensitive” way. “A time-sensitive approach governs this inquiry as it would be unfair to consider allegations of failed disclosure through the lens of current day rules and practices”: R. v. Biddle, 2018 ONCA 520, 141 O.R. (3d) 401, at para. 18. Applying present-day disclosure standards to actions that occurred when current standards were not in place would be “akin to using present-day medical standards to decide whether a diagnostic protocol followed [long ago] amounted to malpractice”: Truscott, at para. 122; see also Phillion, at para. 150.
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[108] As we will explain, we accept the Crown’s reasonable concession that the Raymer tape should have been disclosed and that the failure to do so diminished the overall fairness of the trial process by denying the appellant “reasonably possible” uses of the evidence at trial: Dixon, at paras. 31-34. We begin by describing the discovery of the Raymer tape and its content before discussing the disclosure standards at the time.
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d. Even on the disclosure standards in 1989-90, the Raymer tape should have been disclosed
[141] As explained, we must position ourselves back in time to determine whether there has been a breach of the right to disclosure, since disclosure standards of today do not dictate whether there was a breach of the right to disclosure at the time of trial.
[142] In 1989, when the charge was laid in this case, and in 1990 when the appellant was tried, disclosure standards were different than they are today. Indeed, R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, was not decided until about a year after the verdict was returned in this case.
[143] In R. v. Wood, decided the same year as Darla’s murder, Griffiths J.A. described the s. 7 Charter right to disclosure as guaranteeing the accused “the right only to such disclosure from the Crown as is necessary to make full answer and defence” and that disclosure pursuant to Charter requirements only had to be “sufficient to fairly apprise the accused of the case to be met in sufficient time and substance to enable the accused to adequately prepare and defend that case”: (1989), 1989 CanLII 7193 (ON CA), 51 C.C.C. (3d) 201 (Ont. C.A.), at p. 236, leave to appeal refused, [1990] S.C.C.A. No. 73.
[144] However, the court noted in Wood that “[i]n general, … it has been the practice of Crown counsel in Ontario to furnish to the accused more than what was provided through the preliminary inquiry, and to comply with the published guidelines of the Attorney General to Crown attorneys”: at p. 235; see also Hon. G.A. Martin (Chair), Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (Toronto: Queen’s Printer for Ontario, 1993), at pp. 144-45.
[145] On October 1, 1989, the Ministry of the Attorney General for Ontario released a new disclosure directive, entitled “Charge Screening”
Appendix “A” of that document reads as follows:It is recognized that there is a general duty upon the Crown to disclose the case-in-chief for the prosecution to counsel for the accused, and to make counsel for the accused aware of the existence of all other evidence relevant to guilt or innocence of the accused.
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The purpose of disclosure by the Crown is threefold:
(a) To ensure that the defence is aware of the case-in-chief for the prosecution and all other evidence relevant to the guilt or innocence of the accused;
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The guiding principle is always full disclosure of the case-in-chief for the prosecution and all other evidence relevant to the guilt or innocence of the accused. [Emphasis added.] [146] The appellant fairly describes in his factum the disclosure practice in Ontario before Stinchcombe:... [D]isclosure in all serious cases took the form of a Crown Brief consisting of a series of typed willsays for police officers and civilian witnesses. Police willsays were usually typed from their police notebook entries and civilian willsays were prepared from their police-handwritten witness statements. [147] In Stinchcombe, Sopinka J. noted that “[t]he circumstances which give rise to this case are testimony to the fact that the law with respect to the duty of the Crown to disclose is not settled”: at p. 331. Stinchcombe put that uncertainty to rest, placing an obligation on the Crown to disclose all relevant, non-privileged information in its possession or control. This included both inculpatory and exculpatory evidence whether the Crown intended to produce the information as part of its case or not, as well as all relevant witness statements, recordings and police notes: Stinchcombe, at pp. 343-46.
[148] Peter Griffiths (now the Honourable Peter Griffiths) was the Crown counsel who prosecuted this case. He was later appointed a judge and then appointed to the position of the Associate Chief Justice of the Ontario Court of Justice. He is now retired.
[149] In the agreed statement of facts before this court, Mr. Griffiths explained that prior to this trial, the police provided him with the Crown brief. There is no dispute that it was prepared by S/Sgt. Cotgreave and Det. Massey.
[150] Mr. Griffiths had a practice of disclosing all material in his possession to the defence and believes he did that in this case. Accordingly, he believes that the Crown brief that he received would have been provided to the defence. It was not his practice to second-guess how those briefs were put together. The practice at that time was not to disclose copies of officer notes, although they could be viewed upon request by defence counsel.
[151] Mr. Griffiths was not provided with the Raymer tape. Although the Crown brief contained a willsay for Mr. Raymer, nothing in it reflected the contents of what was said on the Raymer tape. It is agreed that, at the time of trial, Mr. Griffiths was not aware of the existence or contents of the Raymer tape. Had he been aware of it, he would have disclosed it to the defence.
[152] We agree with the Crown’s appropriate concession on appeal that, even in the pre-Stinchcombe world, the Raymer tape should have been disclosed to the defence. We are entirely satisfied that the prosecuting Crown had no knowledge of the existence of the tape and, if he had had such knowledge, it would have been disclosed.
[153] As confusing as the tape is (something to which we will return), there is a reasonable possibility that withholding the content of that tape from the appellant diminished the overall fairness of the trial process by denying him the ability to further advance his third-party suspect defence. The defence was already pointing at Mr. Raymer as a third-party suspect. Clearly, if the tape had been disclosed, the defence would have had a lot more to work with on that front, including when cross-examining Mr. Raymer.
[154] Undoubtedly, the tape would have provided helpful ammunition during that cross-examination. For instance, at various points on the tape, Mr. Raymer acknowledged: (i) kissing and touching Darla; (ii) lying to the police; (iii) seeing Darla in the bathroom on March 16 before he went to sleep; and (iv) going to Darla’s room the night she died. Of course, he walked back many of these statements during the same interview, but that does not take away from the fact that they would have been helpful ammunition during cross-examination at trial.
3. The conviction must be quashed
[155] For these reasons, we accept the Crown concession, based upon the Raymer tape alone, that there was non-disclosure and that there exists a reasonable possibility that the non-disclosure impacted the overall fairness of the trial process. This was a miscarriage of justice and requires that the appellant’s conviction be quashed.
[156] At this stage, and in light of our conclusion regarding the failure to disclose the Raymer tape, it is unnecessary to determine whether the balance of the alleged non-disclosure should have been provided to the defence prior to Stinchcombe. Instead, we will consider the additional alleged non-disclosed materials in determining the appropriate remedy. . R. v. Rees
In R. v. Rees (Ont CA, 2025) the Ontario Court of Appeal considered a further (and much later) appeal emanating from "a referral by the Minister of Justice, made pursuant to s. 696.3(3)(a)(ii) ['Applications for Ministerial Review — Miscarriages of Justice - Powers of Minister of Justice'] of the Criminal Code", which - after much incarceration - set aside a conviction for second degree murder, and ordered a new trial.
The court considers confession 'voluntariness', here from this historical appeal perspective:[213] Back in 1990, as today, the common law confessions rule mandated that a confession could not be admitted into evidence unless it was freely and voluntarily made: Boudreau v. The King, 1949 CanLII 26 (SCC), [1949] S.C.R. 262, at pp. 269-270, per Rand J., citing Ibrahim v. The King, [1914] A.C. 599 (U.K.), R. v. Voisin, [1918] 1 K.B. 531 (U.K.) and Prosko v. The King (1922), 1922 CanLII 584 (SCC), 63 S.C.R. 226; Rex v. Howlett, 1950 CanLII 103 (ON CA), [1950] O.R. 181 (C.A.), leave to appeal refused, 1950 CanLII 338 (SCC), 96 C.C.C. 190 (S.C.C.). The Crown bore the onus of proving the voluntariness of the confession beyond a reasonable doubt: R. v. Precourt (1976), 1976 CanLII 692 (ON CA), 18 O.R. (2d) 714 (C.A.), leave to appeal refused, [1977] 1 S.C.R. xi (note); R. v. Pickett (1975), 1975 CanLII 1428 (ON CA), 28 C.C.C. (2d) 297 (Ont. C.A.), at p. 302. A confession could still be excluded, despite the fact that there had been no fear of prejudice or hope of advantage, if the statement was not the utterance of an operating mind: Ward v. Her Majesty the Queen, 1979 CanLII 14 (SCC), [1979] 2 S.C.R. 30, at p. 40, per Spence J.; Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, at p. 670, per Martland J. And even if a statement was not involuntary, the trial judge held a residual discretion to exclude it if “its use in the proceedings would, as a result of what was said or done by any person in authority in eliciting the statement, bring the administration of justice into disrepute”: Rothman, at p. 696, per Lamer J. (concurring). While this third category was set out by Lamer J. in concurrence, it was formally adopted in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265.
[214] Although differently articulated and categorized today, the voluntariness rule did not undergo a sea change in Oickle. To the contrary, the same factors are largely at play, albeit considered in a more disciplined framework than pre-Oickle. In applying an Oickle framework, there are four considerations.
[215] First, the court looks to whether the police made threats or offered promises: Oickle, at para. 48. Some threats and promises – such as moral and spiritual inducements – will not generally produce involuntary confessions: at para. 56. Rather, the “most important consideration” is “to look for a quid pro quo”: at para. 57.
[216] Second, a court should consider if the circumstances underlying the confession were “oppressive”: Oickle, at para. 58. Oppressive circumstances include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; excessively aggressive, intimidating questioning for a prolonged period of time; relentlessly accusing the suspect of guilt; and, using non-existent evidence: at paras. 58-61.
[217] Third, a court should assess whether the suspect is of an “operating mind”: Oickle, at para. 63. The operating mind test asks if the suspect is aware of what they are saying and of the consequences of making the statement, including that it can be used in evidence: R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, at pp. 934-39. In Oickle, the court clarified that the operating mind doctrine is not a discrete inquiry divorced from the confessions rule, but rather is part of the voluntariness analysis: at paras. 63-64.
[218] Fourth, a court should determine whether police trickery was used in obtaining a confession: Oickle, at para. 65. Reiterating Lamer J.’s concurrence in Rothman, the court in Oickle explained that a judge has discretion to exclude a confession stemming from a police tactic that would shock the community: Oickle, at para. 66-67, citing Rothman, at pp. 691, 697. This analysis is a distinct inquiry from the rest of the analysis because it relates more to upholding the integrity of the criminal justice system than to voluntariness: Oickle, at para. 65.
[219] Since Oickle was decided in 2000, there have been no significant changes to the voluntariness rule: R. v. Tessier, 2022 SCC 35, [2022] 2 S.C.R. 660, at para. 68. Kasirer J. commented in Tessier on the settled nature of the law, citing Oickle:The law relating to the modern confessions rule is settled. A confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness (Oickle, at para. 68).
See also R. v. Beaver, 2022 SCC 54, 420 C.C.C. (3d) 421, at paras. 45-48. [220] Although the law is settled, undoubtedly courts have come to better appreciate, over time, the importance of remaining vigilant in guarding against wrongful convictions arising from false confessions: see, e.g., R. v. Ordonio, 2025 ONCA 135, 176 O.R. (3d) 1.
[221] Remaining alive to the reality of false confessions, we see nothing in the record, even as enhanced on appeal, that causes us to question the voluntariness of the confession in this case.
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