|
Evidence Case Dicta - Admissions (includes Confessions) (2). R. v. Maric
In R. v. Maric (Ont CA, 2024) the Ontario Court of Appeal comments on admissions of fact:[156] First, there is no dispute that in 2013, Mr. Eckstein and Mr. Maric were arrested and charged in London. The application judge recognized that the parties admitted this fact. When admissions of fact have been made, “as matter of law, a trial judge is obliged to accept those facts”: R. v. Rudder, 2023 ONCA 864, 169 O.R. (3d) 561, at paras. 44-45. In any event, neither the reviewing judge, nor this court, has the authority to excise correct information: R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 28, leave to appeal refused, [2010] S.C.C.A. No. 84. . R. v. Gauthier
In R. v. Gauthier (Ont CA, 2024) the Ontario Court of Appeal dismisses an appeal from a first degree murder conviction.
Here the court considered the law of confessions, and of the voluntariness of statements:[11] Second, the appellant argues that the trial judge erred by admitting into evidence statements made by the appellant to two police officers and a correctional officer after his arrest, in which he spontaneously confessed to killing Ms. Avery. These statements were not audio or video recorded. The police officers who heard one of them made late entries of this statement in their notes on the next day, and the correctional officer who heard the other statement acknowledged that his notes could have been written later than he estimated, and that he inserted an additional detail later. The appellant argues the trial judge erred by concluding that the Crown met the very high burden of proving beyond a reasonable doubt that the statements were made voluntarily. The appellant submits that the trial judge shifted the burden of proof to him to provide evidence that the statements were not voluntary; did not grapple with the failure of the Crown to provide a proper evidentiary record which would permit the court to fairly adjudicate the voluntariness question; and failed to consider whether the inculpatory statements were the product of an “operating mind”.
[12] I agree that the trial judge failed to grapple with the poor evidentiary record relied on by the Crown, and that there were significant gaps in the evidence surrounding the circumstances and voluntariness of the appellant’s statements. While deference is ordinarily given to a trial judge’s voluntariness ruling, appellate intervention is required if the relevant circumstances are not considered: R. v. Tessier, 2022 SCC 35, 419 C.C.C.(3d) 1, at para. 43. In my view, this is such a case. Given the evidentiary record tendered by the Crown, it could not discharge its burden. Accordingly, the trial judge erred in admitting these statements.
....
(c) Analysis
[76] The approach to be taken by an appellate court in its assessment of a trial judge’s finding of voluntariness was recently restated by the Supreme Court of Canada in R. v. Tessier, 2022 SCC 35, 419 C.C.C. (3d) 1, at para. 43:A finding of voluntariness calls for deference unless it can be shown that it represents a palpable and overriding error. An appellate court may only intervene where the error is “overriding and determinative in the assessment of the balance of probabilities with respect to that factual issue”. The standard of review associated with the finding of voluntariness is tied to the idea that the analysis under the confessions rule must be a contextual one in which bright-line rules are few. Where the law is properly understood and the relevant circumstances considered, the trial judge is best placed to measure that context and make the relevant findings. [Citations omitted.] [Emphasis added.] ....
[80] The trial judge correctly observed that the requirement of proof beyond a reasonable doubt does not apply as to whether the statement was actually made. He stated that to satisfy the onus of showing that the appellant made a statement, the Crown need only introduce some evidence that the accused made the statement attributed to him. The standard of proof required is minimal, and not often the subject of dispute, except in cases such as here where it is not a formal police interview and not video recorded. The trial judge was on solid ground because the accuracy and completeness of the record of a voluntary statement is an issue of weight that is usually left for the trier of fact, in this case, the jury: R. v. Lapointe and Sicotte (1983), 1983 CanLII 3558 (ON CA), 9 C.C.C. (3d) 366 (Ont. C.A.), aff’d 1987 CanLII 69 (SCC), [1987] 1 S.C.R. 1253.
....
[81] However, the trial judge did not grapple with the defence submission in this case, that the accuracy and completeness of the record of the circumstances surrounding the making of the statement were deficient and those gaps were fatal to the Crown in proving that the statements were voluntary: R. v. Moore-McFarlane (2001), 2001 CanLII 6363 (ON CA), 56 O.R. (3d) 737, at para. 67 (Ont. C.A.). In fairness to the trial judge, this distinction is often difficult to apply, especially in a case like the one at bar where no evidence is called by the defence on the voir dire.[8] It may be unclear in some cases whether the defence is raising issues of voluntariness or issues of accuracy. However, I am satisfied, in this case, the defence did raise the inadequacy of the evidentiary record specifically as a challenge to establishing voluntariness. And the trial judge acknowledged this when he summarized the position of the defence. However, in my view he did not address the deficient record introduced by the Crown in this case. This court stated in Moore-McFarlane, at para. 67:It is important to read this statement of principle in context. The issue that arose in Lapointe – whether the accused’s capacity to understand English was sufficient for him to have given the statement alleged by the police officers – was one that related to the ultimate reliability of the statement and the weight that was to be attached to it. As the court stated, it was only where an accused’s capacity was so deficient as to make it impossible for him to have given a statement that the trial judge would be justified in excluding the statement on that basis. Hence the court concluded that, in this case, this issue was not a matter to be determined at the voir dire stage of the proceedings. The decision in Lapointe does not stand for the proposition that all issues of accuracy and completeness of recording are left to the triers of fact. Such an interpretation would run contrary to centuries of jurisprudence that require careful scrutiny of the circumstances surrounding the taking of a statement by persons in authority. And, in my view, the completeness, accuracy and reliability of the record have everything to do with the court’s inquiry into and scrutiny of the circumstances surrounding the taking of the statement. Indeed, it is difficult to see how the Crown could discharge its heavy onus of proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed. [Emphasis added.] ....
[83] I agree with the appellant that the deficient evidentiary record alone was a sufficient basis for the trial judge to find that the Crown had not discharged its evidentiary burden. The Crown bore the onus to produce a record capable of demonstrating that the appellant’s statements were not the product of undue influence or coercion.
[84] In sum, the trial judge did not deal with the gaps in the evidentiary record. The trial judge’s ruling does not attract deference and I would conclude that, when the relevant considerations are properly considered, the Crown has not discharged its onus to show that the statements were voluntary. . R. v. Lee
In R. v. Lee (Ont CA, 2024) the Ontario Court of Appeal dismissed a conviction appeal, here in a Mr. Big context (admissions regarding prior crimes made to undercover police who the defendant thought were higher-ranking criminals):[31] The appellant advances two grounds of appeal. His first ground is that the trial judge erred by ruling that his Mr. Big statements were admissible under the legal test established by the Supreme Court of Canada in R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544. Specifically, the appellant argues that the Crown failed to meet its onus of establishing that the appellant’s statements were sufficiently reliable to overcome the risk of moral and reasoning prejudice.
[32] This first ground of appeal has two branches, since the appellant argues that the evidence should have been excluded under both prongs of the two-part Hart test.
....
(1) The admissibility of the appellant’s “Mr. Big” confessions
(1) The Hart test
[34] The admissibility of statements made to undercover officers by the targets of Mr. Big investigations is governed by the two-prong test established by the majority judgment in Hart. The Hart test applies to all statements made by the accused to the undercover officers participating in the Mr. Big investigation which the Crown seeks to adduce as part of its case: R. v. Amin, 2024 ONCA 237, at para. 40.
[35] The first prong of the Hart test requires the Crown to displace the presumption of inadmissibility by establishing, on a balance of probabilities, that the probative value of the inculpatory statement outweighs its prejudicial effect. As Moldaver J. explained in his majority reasons in Hart, at para. 85:In this context, the confession’s probative value turns on an assessment of its reliability. Its prejudicial effect flows from the bad character evidence that must be admitted in order to put the operation and the confession in context. [36] Under the second prong of the Hart test, the defence bears the burden of establishing on a balance of probabilities that the police conduct while carrying out the Mr. Big operation amounted to an abuse of process. As Moldaver J. stated at para. 11:Trial judges must also carefully scrutinize the conduct of the police to determine if an abuse of process has occurred. No matter how reliable the confession, the courts cannot condone state conduct — such as physical violence — that coerces the target of a Mr. Big operation into confessing. Where an accused establishes that an abuse of process has occurred, the court can fashion an appropriate remedy, including the exclusion of the confession or a stay of proceedings. [37] Moldaver J. explained further, at paras. 115-18, that a main focus of the abuse of process analysis will be on whether the police made coercive inducements and threats, but he also did not “foreclose the possibility that Mr. Big operations can become abusive in other ways”: Hart, at para. 118.
[38] Importantly, both branches of the Hart test require trial judges to make discretionary judgment calls. Discussing the first prong of the test, Moldaver J. explained at paras. 109-10 of his majority reasons:Determining when the probative value of a Mr. Big confession surpasses its potential for prejudice will never be an exact science. As Justice Binnie observed in Handy [R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908], probative value and prejudicial effect are two variables which “do not operate on the same plane” (para. 148). Probative value is concerned with “proof of an issue”, while prejudicial effect is concerned with “the fairness of the trial” (ibid.). To be sure, there will be easy cases at the margins. But more common will be the difficult cases that fall in between. In such cases, trial judges will have to lean on their judicial experience to decide whether the value of a confession exceeds its cost.
Despite the inexactness of the exercise, it is one for which our trial judges are well prepared. Trial judges routinely weigh the probative value and prejudicial effect of evidence. And as mentioned, they are already asked to examine the reliability of evidence in a number of different contexts, as well as the prejudicial effect of bad character evidence. They are well positioned to do the same here. Because trial judges, after assessing the evidence before them, are in the best position to weigh the probative value and prejudicial effect of the evidence, their decision to admit or exclude a Mr. Big confession will be afforded deference on appeal. [39] With respect to the second prong, abuse of process, the question of whether the constellation of circumstances in a particular Mr. Big investigation rises to the level of an abuse requires a fact-driven and case-specific balancing of competing interests that also commands appellate deference: see e.g., R. v. Keene, 2020 ONCA 635, 394 C.C.C. (3d) 160, at para. 46; R. v. Baranec, 2020 BCCA 156, 387 C.C.C. (3d) 502, at paras. 172-73, leave to appeal refused, [2020] S.C.C.A. No 287; Amin, at para. 33. . Gandhi v. Mayfield Arcadeium Holdings Ltd.
In Gandhi v. Mayfield Arcadeium Holdings Ltd. (Div Court, 2024) the Divisional Court allows an appeal against an order that held a lien claim was invalid for lateness in issuing the "statement of claim to enforce the lien claim".
In these quotes the court considers the role of 'claim for lien' pleadings as evidentiary admissions:The Legal Issue
[26] The question before the motion judge was whether Mr. Gandhi commenced this litigation within 90 days of his last supply of services of the project. This is a question of fact to be determined on the evidence.
[27] Mr. Gandhi commenced this action on July 10, 2023.
[28] If the date of last supply was April 2, 2023, as set out in Mr. Gandhi’s Claim for Lien form, then he commenced this lawsuit nine days too late. If the date of last supply was April 11, 2023, as Mr. Gandhi affirmed in cross-examination and as supported by the WeChat screenshots, then the litigation was commenced just in time.
....
[29] The motion judge analyzed the issue as follows:[22] The contents of a claim for lien are a significant part of the statutory scheme; that document is not a mere pleading as argued by the Responding Party. Moreover, the contents of a claim for lien constitute an admission by the Responding Party under the law of evidence, an exception to the hearsay rule. In my view the testimony that they might have been mistaken are not convincing, despite other evidence given by Gandhi about relevant activity after April 2, 2023.
[23] In my view the claim for lien is to be taken at its face value in the case at bar. Powerful evidence, not present before me, will be necessary for the lien claimant to overcome the strength of assertions in his own claim for lien.
[24] Those assertions have consequences which determine the issue of which act applies and whether perfection was timely. [30] The motion judge held that because the Claim for Lien was an important document and an “admission” for the purposes of the law of evidence, powerful evidence is necessary for a lien claimant to overcome its contents.
....
Question of Law
[36] No law is cited for the proposition that a Claim for Lien form has special status as evidence in a lien proceeding.
[37] The fact that a statement in a document is an “admission” for the purposes of the law of evidence just means that it is admissible in evidence despite being hearsay. If a document is used to prove the truth of its contents, it is hearsay because it is a statement made out of court. Hearsay evidence is presumptively inadmissible unless there is an applicable exception to the exclusionary rule.
[38] Admissions are a recognized exception to the hearsay exclusion rule. Admissions are anything said, written, or done by a party tendered by the opposite party in evidence: Lederman, Bryant, and Fuerst, The Law of Evidence in Canada, Fourth Edition (Markham: LexisNexis Canada, 2014) at §6.417.
[39] The fact that a piece of evidence is an admission, i.e. a statement made by a party out of court, just makes it admissible as an exception to the hearsay rule. It has no greater significance.
[40] However, there is a recognized category of formal admissions made in pleadings, and formal documents in litigation can be subject to special rules to limit a party’s ability to withdraw that kind of admission. See, for example, Rule 51 of the Rules of Civil Procedure, RRO 1990, Reg 194. But as Lederman et al. note at §6.418,As in the case of all admissions, except those known as “judicial or formal admissions”, the party who made it may later lead evidence at trial to reveal the circumstances under which the admission was made in order to reduce its prejudicial effect. [41] The motion judge accepted that Mr. Gandhi’s Claim for Lien was not a pleading. Its contents, no doubt, are an admission by Mr. Gandhi. That means that they are provable against him in evidence for the truth of their content despite being a statement made out of court and therefore hearsay.
[42] But, absent a formal judicial admission and an applicable special standard, like Rule 51 of the Rules of Civil Procedure, the date in a Claim for Lien form has no special status requiring especially “powerful evidence” to rebut it. . R. v. Amin ['Mr.Big sting']
In R. v. Amin (Ont CA, 2024) the Ontario Court of Appeal engages in an extending review of 'similar fact' evidence, here in the context of a 'Mr.Big' police sting operation where the goal is to obtain a confession from the defendant wrt the other, 'target' crime.
One of the court's apparent concerns was that by inducing the defendant to become involved with the fake crimes, the jury would be likely to be prejudiced against them in the same manner that 'similar fact' (Handy) evidence can do:A. Overview
[1] Evidence that accused persons committed bad acts other than the crime they are charged with committing is dangerous. This evidence can poison the jury and lead them to convict accused persons because they appear to be bad people who keep bad company, rather than because the Crown has proved that they committed the charged crime. The improper admission and misuse of such evidence can result in wrongful convictions. This risk is heightened where the Crown relies on similarities between the accused’s bad acts other than the crime charged and that crime to prove that the accused is the person who committed the crime because there is a risk that such similarities are merely a coincidence.
[2] Police undercover operations intended to elicit confessions pose these and other dangers. These operations frequently induce the suspect to join a fictitious organization and participate in simulated crimes or bad actions, culminating in an interview in which the organization’s boss asks the suspect to confess as the price of joining the organization. They inevitably elicit evidence of the suspect’s bad acts other than the charged crime by showing the suspect’s willingness to associate with bad people and/or perform simulated crimes or other wrongful acts that can be highly prejudicial. They also risk inducing false confessions because the suspect is motivated to join the organization and fears that failure to confess will result in rejection.
[3] The justice system has developed safeguards governing the admission and use of evidence of the accused’s bad acts other than the crime charged and statements by the accused made during police undercover operations to protect against wrongful convictions. Where the Crown uses evidence of the accused’s bad acts other than the crime charged to help prove the accused’s identity as the perpetrator, it can only be admitted if it is very similar to how the charged crime was committed and its value outweighs the risks that the jury will misuse it. Trial judges who admit this evidence must warn jurors that they cannot use it to convict accused persons simply because they appear to be bad people. Further, trial judges must carefully evaluate the reliability of statements made to undercover officers to guard against the danger of false confessions.
....
D. Analysis
[26] The appellant argues that there must be a new trial because the trial judge both erroneously admitted the murder advice and failed to warn the jury about the dangers of misusing that advice and the June 27 statements. I agree. As I will explain, the trial judge did not comply with the legal safeguards governing the admission and use of the murder advice and June 27 statements. These errors require a new trial because they create a real risk that the jury convicted the appellant because he appeared to be a bad and violent person rather than because the Crown proved its case.
(1) The Governing Legal Framework: Handy and Hart
[27] Admitting evidence that an accused has committed bad acts other than the offence charged is dangerous. The Supreme Court of Canada has described such bad act evidence as poisonous and warned that its admission and use without proper safeguards risks wrongful convictions: Handy, at paras. 58, 138-141, 146; R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, at p. 735.[2] This evidence triggers the danger of moral prejudice, which is the natural human tendency to judge people based on their character and convict accused persons because they are bad people. For instance, juries may reason that accused persons committed a violent crime because they are violent people: Handy, at paras. 39-40. This evidence also poses a second danger, reasoning prejudice, because it risks confusing the trier of fact and distracting from the facts underlying the actual charge against the accused: Handy, at para. 100.
[28] Handy adopted a test to guard against the dangers of bad act evidence. This test applies to bad act evidence led by the Crown, including both criminal acts and other conduct an ordinary person would disapprove of: Handy, at para. 34; R. v. Johnson, 2010 ONCA 646, 262 C.C.C. (3d) 404, at paras. 88, 90. The test makes bad act evidence presumptively inadmissible unless the Crown can show on a balance of probabilities that it is relevant to an issue other than the accused’s general propensity to commit bad acts and that its probative value in relation to that issue outweighs the risks of moral and reasoning prejudice: Handy, at paras. 55, 69-75, 100.
[29] Handy provides guidance on how to assess the probative value of bad act evidence when the Crown tenders it as propensity evidence. Propensity evidence is bad act evidence that the Crown tenders to show that the accused has a disposition to act in a particular way and thus acted in that way by committing the charged offence: R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), at para. 97. Propensity evidence is either general or specific: R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449, at para. 170. General propensity evidence merely shows that the accused has a general disposition for violence or other crime and is never admissible: Handy, at para. 31. Specific propensity evidence is more context-specific and is sometimes admissible but remains dangerous because it still poses the risks of moral and reasoning prejudice: Dooley, at para. 170; Handy, at paras. 59-68. The degree of similarity between the bad acts and the facts of the charged crime determines the probative value of specific propensity evidence. A greater degree of similarity makes it unlikely that the similarities are a coincidence: Handy, at paras. 41-48, 76.
[30] The Handy test includes a special rule, which I will refer to as the identity rule. This rule guards against the special dangers of propensity evidence that the Crown seeks to use to prove the accused’s identity as the perpetrator: R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 20. Under this rule, propensity evidence is only admissible to prove identity if it has a high degree of similarity to the charged crime that negates the possibility of coincidence: Perrier, at paras. 19, 44. The rule’s high threshold protects against the risk that the similarities are coincidental: Perrier, at para. 20, citing Handy, at para. 91. To meet it, the Crown must establish on a balance of probabilities that the same person committed both the other bad acts and the charged crime: Perrier, at para. 20. The Crown can do so by either showing a “‘unique trademark or signature’” or a number of significant similarities that cumulatively preclude coincidence: Perrier, at para. 19, quoting R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 45; see also Handy, at para. 77.
[31] Evidence obtained in police undercover operations designed to induce confessions can also risk wrongful convictions. These operations frequently involve undercover officers offering a suspect incentives to join a fictitious organization and then telling the suspect that to become a member the suspect must first confess to having committed the crime to the organization’s leader: Hart, at paras. 1-2. These operations often, but not always, take the form of a classic “Mr. Big” investigation in which undercover officers elicit a confession during an interview-like meeting between the suspect and the boss of a fictitious criminal organization, who is known as Mr. Big: Hart, at paras. 1-2. These operations pose three dangers: they risk resulting in unreliable confessions; they may prejudice accused persons in the eyes of the trier of fact by showing their willingness to join a criminal organization and engage in simulated crimes; and, they may become abusive and unduly coercive: Hart, at paras. 5-9. Like bad act evidence, the admission of confessions deriving from these types of operations can create a risk of wrongful convictions: Hart, at para. 8.
[32] The Hart test guards against the dangers posed by undercover police operations undertaken to obtain confessions. Hart applies to two types of police operations designed to elicit confessions: (1) those in which undercover officers recruit the accused into a fictitious criminal organization, and (2) other undercover operations not involving a fictitious criminal organization that still pose the three dangers Hart identified: Hart, at paras. 10, 85; R. v. Quinton, 2021 ONCA 44, 399 C.C.C. (3d) 514, at paras. 40-42; R. v. Zvolensky, 2017 ONCA 273, 135 O.R. (3d) 401, at paras. 83-85, leave to appeal refused, [2017] S.C.C.A. No. 403. If Hart applies, any confession the accused makes to undercover officers during the operation is presumptively inadmissible unless the Crown establishes on a balance of probabilities that its probative value outweighs its prejudicial effect: Hart, at para. 85. Even if the Crown makes this showing, the trial judge may still exclude the confession if the police conduct is an abuse of process, as may be the case where the police use unacceptably coercive tactics: Hart, at paras. 86, 113-118. Hart uses but does not define the term “confession,” a point to which I will return later.
[33] Handy and Hart both address some of the same concerns, adopt a similar balancing test, and are subject to a deferential standard of appellate review. Both determine the evidence’s prejudicial effect by assessing the risks of moral and reasoning prejudice: Hart, at paras. 73-74; Handy, at para. 42. Further, both tests make the evidence presumptively inadmissible unless the Crown can prove on a balance of probabilities that the evidence’s probative value outweighs its potential prejudice: Hart, at para. 85; Handy, at para. 55. Finally, appellate courts will defer to trial judges’ balancing of probative value and prejudicial effect under both tests unless the trial judge errs in law, misapprehends the evidence, or reaches an unreasonable result: Hart, at para. 110; Handy, at para. 153; R. v. McDonald, 2017 ONCA 568, 351 C.C.C. (3d) 486, at para. 85.
[34] However, the two tests focus on different types of evidence, take different approaches to assessing probative value, and vary in their approach to police misconduct. Hart addresses confessions by the accused accompanied by bad act evidence as context for the accused’s confession, while Handy solely concerns bad act evidence: Hart, at paras. 2, 73, 76; Handy, at para. 34. Because Hart concerns confessions that are often highly probative of guilt if reliable, its assessment of probative value focuses on reliability factors: Hart, at paras. 99-105. In contrast, when the Crown seeks to use other bad act evidence as propensity evidence, Handy assesses probative value principally by whether the bad acts other than the crime charged are similar enough to the facts of the charged offences to negate the possibility of coincidence: Handy, at para. 76. Finally, Hart addresses the risk of police misconduct while Handy does not: Hart, at para. 86. The court continues [at paras 36-62, with several useful case cites] to analyse these errors by the trial court, and further [at paras 63-75] by not cautioning the jury on the potential prejudicial effect of the 'similar fact' evidence.
|
