En-Gendered Arguments on Incest

Section 155 of the Criminal Code prohibits the act of incest. The section reads as follows:

Everyone commits incest who, knowing that another person is by blood relationship with his or her parent, child, brother, sister, parent grandparent or grandchild, as the case may be, has sexual intercourse with that person.

Sexual intercourse is defined in section 4(5) of the Code; it states: 

For the purposes of this Act, sexual intercourse is complete on penetration to even the slightest degree, notwithstanding that the seed is not emitted.

KH was charged with a number of sexual offences including incest all perpetrated against his underage sister. Numerous incidents were alleged which included forced fellatio and several acts of KH penetrating his sister’s anus.

At the close of the Crown’s case, KH brought an application for a directed verdict on the incest charge. KH argued the following:

1. The purpose of section 155 is to prevent “sexual intercourse between persons who have a blood relationship” in an effort to “prevent genetic mutations that can result from inbreeding” and to protect of vulnerable family members. [at paras 6-7]
2. The fact that section 4(5) includes the phrase “notwithstanding that seed is not emitted” indicates that what is contemplated is penetration of a vagina by a penis.
3. That Parliament also enacted (the now unconstitutional) section 159 prohibition against anal intercourse, further supports the defence position on the definition of sexual intercourse.

Barnes J dismissed the application: 2015 ONSC 7760 and held that:

The defence argument falls apart when considered in the context of the second legislative intent, which is the protection of vulnerable members of the family. A definition of sexual intercourse limited to penile penetration of the vagina means that a male can only commit incest if he uses his penis to penetrate the vagina of a blood relation. Under this circumstance, the "vulnerable family member" is only protected from incest if she is female and if the penis is inserted into her vagina. The same female blood relation is not protected from incest if her male blood relation inserts his penis into her anus.

Another consequence of restricting sexual intercourse to the penile penetration of the vagina is that a vulnerable family member cannot receive the protections provided by s. 155 of the Criminal Code simply because he is not female. On the defence theory, if a male places his penis in the anus of a vulnerable family member who is male, he cannot be charged with incest. The protection of vulnerable female family members to the exclusion of vulnerable male family members could not have been the intention of the legislature. [at paras 16-17]

Barnes J’s common sense approach to this issue is in accordance with the principles of statutory interpretation which the court reviewed prior to reaching its conclusions. 

LT

Likely Relevant, but Inherently Unreliable

Katlin Cousineau died at the hands of her housemates. Katlin was 23yrs old and developmentally delayed. When the two first met Katlin and Susan Balogh were neighbours and when Katlin and her husband separated she moved in with Balogh and her partner. In 2004 Paul Bradey and Balogh started an affair. Balogh left her partner and moved in with Bradey- taking Katlin with her. Thereafter the three moved into a new place and were joined by Balogh’s friend Matthew Sitte.

Katlin died in the basement of that shared residence. She had blowtorch burns all over her body. Katlin was viciously abused by Sitte and Bradey- Balogh also participated in the abuse.  Katlin was assaulted physically and sexually and on numerous occasions drugged. She was deprived of the necessities of life- forced to sleep on the concrete floor with a sheet and a pillow and made to use a bucket instead of a toilet.

The blowtorch burns covering Katlin’s body were inflicted over a number of days while she was alive. When she finally succumbed to the injuries Balogh, Bradey and Sitte hatched a plan to burn the home down to conceal their crime and collect the insurance money from the ‘accidental’ fire.

Forensic investigation quickly unraveled the plot and the three were charged with Katlin’s murder.

Sitte pled guilty to second degree murder. Balogh pled guilty to criminal negligence causing death. Both testified at Bradey’s trial for the Crown.

Bradey was found guilty of first degree murder, arson and rendering an indignity to Katlin’s body.

Bradey appealed his conviction: 2015 ONCA 738. One of those grounds of appeal was that the trial judge erred in denying Bradey’s application for Balogh’s psychological records from the correctional facility she was being held.

Brady’s application for these records arose mid-trial. In chief Balogh was asked whether she had ever told anyone the truth about what happened before telling the jury. Balogh responded that she had told her psychologist.

The psychologist in question was the psychologist at Grand Valley where Balogh was serving her sentence.

Bradey sought production of the records from Grand Valley that included statements Balogh had made:

1. About the offence
2. About her relationship with Bradey
3. About her plea to the lesser included offence of criminal negligence causing death

Counsel was appointed to represent Balogh. Both Balogh and the Crown resisted the application.

On the application the Crown called a psychologist from Grand Valley but not the one Balogh had dealt with. The witness testified that:

1. Psychologists are not required to note everything a patient says and patients are not consulted about the accuracy of what has been recorded
2. Releasing such notes could damage a therapeutic relationship and impede an inmate’s rehabilitation

Bradey argued that production of the records would allow him to challenge Balogh’s assertion that she had told the whole truth to the jury.

The trial judge dismissed the application finding that Bradey had failed to establish the likely relevance of the records.

The trial judge’s findings were summarized by the Court of Appeal as follows:

the mere fact that a witness has spoken to a counsellor about matters touching the issues at trial does not make a record of those observations "likely relevant to a fact in issue or the witness' credibility";

the records only pass the likely relevance threshold if there is some basis to conclude that the statements have the potential to provide an accused with some added information not already available to him or to have some impeachment potential;

confidentiality is paramount in the relationship and a high expectation of privacy attaches to the records with the result that unsupported, at large assertions of likely relevance fail to meet the threshold standard for review; and

the witness' statement about the consistency between the account to her psychologist and that provided to the jury demonstrates no inconsistency [para 62].

On appeal Bradey argued that the trial judge erred in dismissing the application. The Court of Appeal held that the trial judge erred in ruling that the test for likely relevance was not met however upon review of the records the Court of Appeal ruled against production.

Watt JA writing for a unanimous court on the issue of production noted the following important points:

First, the records themselves contain onlygeneralized and references to the offence and the guilty plea which were not inconsistent with her testimony [para 1-7].

Second:

the principal purpose for which the records were sought was to impeach Balogh's credibility and the reliability of her evidence on the basis of statements inconsistent with her trial testimony. At trial, she was cross-examined for several days. A prominent feature of the cross-examination was her impeachment by statements made elsewhere -- to investigators and at the preliminary inquiry -- relative to, but said to be inconsistent with, her trial testimony. These statements were accurately recorded and, in some instances, under oath. Her testimony at trial was the subject of a Vetrovec caution.

In light of this, it is difficult to see how the production of these records would have furthered the appellant's ability to make full answer and defence. That difficulty is compounded as the casual reference to relevant events in summary form in a single document affords no basis for cross-examination under s. 10(1) or, for that matter, under s. 11 of the Canada Evidence Act.

 Moreover, the records are sought in relation to collateral issues -- the credibility of Balogh and the reliability of her evidence. Information relating to collateral issues, more accurately, failure to direct its production, does not impair an accused's right to make full answer and defence: O'Connor, at para. 161 [paras 107-109].

Third, the fact that the records originated in a therapeutic context is a relevant consideration.  Such records have been found to be inherently unreliable. “there is no requirement that the notes accurately record any statements.”  Such notes are generally not reviewed by the patient for accuracy, such was the case here.

Fourth, “despite the reduced expectation of privacy inherent in the correctional context, the Clinical Progress Notes originated in a therapeutic relationship. Disclosure of information revealed in that relationship may be injurious to the relationship and stunt its rehabilitative purpose.” [para 111]

As such the appeal on this ground (as well as the others) were dismissed.

LT

The silent witness sees it all

John Benson and Brian Timmons were neighbours. At first, they were friendly. It didn’t stay that way. Things deteriorated. One day, Timmons was working on fixing a borrowed truck. Benson set it ablaze. Timmons suffered minor burns, and property damage.

Unfortunately for Benson, he was caught on video. At trial, there was video of Benson approaching the truck with something in his hand, reaching into the driver’s side of the vehicle, igniting a fire, and quickly moving back. This evidence was critical. The sole issue was identity. Timmons watched the video, and testified that the man was Benson. Benson was convicted of four arson related charges.

On appeal, Benson raised three issues: 2015 ONCA 827. Two of those arguments concerned the surveillance footage. Benson argued that the trial judge:

1. Did not consider the effect of the evidence of the Crown’s expert forensic video analysis on the quality, as opposed to the admissibility, of the lay opinion recognition evidence.
2. Failed or refused to engage in any analysis concerning Timmons’ credibility, based on animus, his history of criminal misconduct, and that he lied to the trial judge about that misconduct.

The appeal was dismissed with reasons.

The Background

Timmons testified that he and Benson had known each other for at least six years. On the day of fire, Timmons heard percussion sounds and saw a cloud of smoke out his window. He saw the truck engulfed in flames. The fire department was called by a passerby. When they arrived, Timmons insisted he had set it on fire accidentally. He testified that he did not want the hassle of involving the authorities. A surveillance system had been installed by Timmons, which he had forgotten about. Timmons was reluctant to turn over the tapes. He believed he had caused the fire himself. Once he reviewed the video with police, Timmons immediately identified Benson as the fire starter [@ paras 8-12].

The Expert Video Evidence

With respect to the first issue, the Crown had adduced the video evidence at trial. The police expert who tendered the video evidence was called as a forensic video analyst. His evidence was relevant as to whether or not the video was in any way compromised or altered. When it is determined the video was not altered or changed and that it accurately depicts the scene, the video may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events [@ para 13-15, see R v Nikolovski, [1996] 3 SCR 1197 @ para 28]. 

In regard to video quality, the pixilation of the video was noted. It could not be further enhanced, which the trial judge took note of. However, whether the video was of sufficient quality to form the basis for identification was a question of fact for the trial judge, and of limited jurisdiction for review [@ para 16-18, see R v Abdi, 2011 ONCA 446 @ para 6]. In this case, the quality of the recording was relevant to the trial judge’s consideration of the content of the video, when determining what weight to give Timmons’ observations and identification of Benson. There was no need to give further consideration to the expert’s opinion, as those who are not acquainted with the accused are in no better position to identify persons in video evidence [see R v Leaney, [1989] 2 SCR 393]. The trial judge did not make a positive identification of Benson. He relied on his own observations and those of Timmons’ in making his decision on Benson’s guilt.

The Video Identification Issue

With respect to the second issue, the trial judge found Timmons to be a credible witness. While appellate courts retain power to reverse decisions where credibility assessments made at trial are not supported by the evidence, this is done sparingly. Interference with these rulings happens only in exceptional circumstances [@ paras 19-21; see R v W(R), [1992] 2 SCR 122 @ para 131, R v Burke, [1996] 1 SCR 474 @ para 5-7).

Specifically on the issue of Timmons identifying Benson, the trial judge noted a number of observations in the video in conjunction with Timmons’ evidence that he was 100% sure that the person in the video was indeed Benson:

• The way he moved his arms;
• The way he walked;
• The way he limped as he was moving;
• His Einstein hairstyle;
• His face;
• His body shape;
• His thinning hair;
• His age;
• His build;
• His enlarged stomach; and
• The plaid shirt he always wore [@ para 23-24].

In cases of recognition evidence, such as this, the caution regarding the frailties of eyewitness identification still applies [@ para 25; see R v Olliffe, 2015 ONCA 242 @ para 39]. However, the level of familiarity between the accused and the witness may enhance the reliability of the identification evidence. The reliability of the evidence was enhanced by their relationship and familiarity with one another [@ para 25]. Further, the ability of a witness to point to a unique identifiable characteristic or idiosyncrasy is a concern better resolved when determining ultimate reliability, not admissibility [@ para 26; see R v Behre, 2012 ONCA 716 @ para 22].

Comment

This case again highlights the powerful nature of video evidence, especially when combined with the observations of witnesses. Although eyewitness identification evidence can be problematic, it remains important and forward-thinking law that witnesses who recognize persons captured by camera ought to be able to testify as to that knowledge – even in cases where the quality of the footage itself is less than ideal. In this case, Timmons clearly pointed out unique, distinctive, and recognizable features that signalled, to him, the person was Benson. These features were noted by the trial judge to be badges of reliability of identification. The trial judge’s own observations, when watching the video, were consistent with that of the witness [see paras 26-27]. Video evidence is an integral part of the truth-finding process. The impartiality it offers as a silent witness cannot be understated. 

SS

Handguns: The cause of so much devastation

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Louis Woodcock apparently liked to carry around a handgun. On Boxing Day 2006 he allegedly was doing so on Yonge Street in Toronto. The Crown alleged he handed it to JSR who engaged in a shootout with other men. One of them shot and killed Jane Creba. Woodcock was charged with murder. He was convicted of manslaughter. He appealed: 2015 ONCA 535.

On appeal Woodcock advanced three grounds.

First, Woodcock alleged that the trial judge erred in relation to expert evidence. Two points were raised. One, that the evidence should not have been admitted as it was “common sense”. The trial judge rejected this position:

I am satisfied that this evidence is necessary to give the jury the tools to appreciate the evidence. It would not be surprising if most or all of the jurors will have never handled a handgun, much less carried an illegal firearm. Such an object is not an ordinary household object with which most persons can be presumed to be familiar. [Cited @12]

The Court of Appeal agreed.

Two, that the expert should not have been allowed to view the video in re-examination. Initially the trial judge ruled that the expert could not view the video in the presence of the jury and offer an opinion on it. However, during cross-examination defence counsel raised the video and challenged the expert on it. In light of this, the trial judge’s decision to allow it to be played in re-examination was reasonable.

Second, Woodcock alleged that the trial judge erred in her charge on causation. In essence, he alleged there was no direction on the issue of causation. In addressing this issue the court noted that it has previously considered the theory of causation in R v JSR, 2008 ONCA 544. The court then reviewed the charge given by the trial judge and held that it was sufficient; in doing so, the court cited, with approval, the following portion of the charge by the trial judge:

The Crown submits that this was, in effect, a mutual shootout, and that the issue of who fired the first shot is of no moment and only reflects who reacted the fastest. The Crown submits that Jane Creba died as a result of a decision by both the accused and Jeremiah Valentine to participate in a shootout on Yonge Street, and that the conduct of the accused in firing, or passing a gun so [J.S.R.] could fire it, was a contributing cause of the death. [Cited @22].

This theory of liability, together with the conduct of the accused (if accepted by the jury, as it apparently was) – which included carrying the handgun used by JSR and handing it to him – was sufficient to support the conviction.

Woodcock is another ruling in a long list of rulings on the prosecutions related to the killing of Jane Creba. It also emphasizes the generous approach to causation that courts are taking in cases of firearm related killings. This is appropriate and necessary. Handguns are designed for the purpose of killing (or at least seriously wounding) other human beings; that is their sole purpose. Those who choose to illegal carry such deadly weapons in our communities and brandish or provide them to others must be held responsible for the foreseeable consequences thereof. The convictions of Woodcock and others – even though they were not the ones that actually shot Jane – are appropriate and just.

DM

Protecting privilege, for everyone

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Mike Rutigliano was a police officer. He was charged with various criminal offences including obstruct, breach of trust and fraud. As a result of a ruling related to a pre-trial motion the Crown stayed the proceedings. The Crown then appealed from that stay: 2015 ONCA 452.

Rutigliano was working for the OPP and was, at the time, responsible for the courts bureau at the Toronto detachment. An RCMP investigation uncovered ties between Rutigliano and organized crime individuals. As a result of a suspicious bank transaction he became the subject of an investigation.  As part of the investigation the police obtained four Part VI authorizations.

One of the pre-trial motions launched was an abuse of process motion seeking a stay of proceedings. The allegation of abuse related to the pursuit and obtainment of wiretap authorizations. In short, the abuse surrounded the actions of the police in their use of potentially privileged communications contrary to the Part VI authorization. The court outlined it this way:

Contrary to the wiretap authorization, his telephone communications were not live monitored but were automatically recorded and retained. The computer system was not set up in a way that would have permitted live monitoring. Summaries of intercepted solicitor calls were provided to the investigative team through daily call logs. Investigators examined communications with solicitors after they had been classified as “privileged” without obtaining a court order for access. Hundreds of presumptively privileged communications were intercepted and recorded. Summaries of intercepts with solicitors that should not have been intercepted were recorded, stored and disseminated to investigators. Summaries of the content of solicitor calls were relied on in an application to unseal some of the information gleaned from the first wiretap. In one case, although a live monitor warned that a communication with a solicitor was about to be intercepted through a room probe, an investigator listened to the entire call, knowing it was presumptively privileged.

[…]

In early 2009, the Commissioner of the OPP waived any privilege attached to any communications between Rutigliano and any Crown Attorney for the period January 1, 2004 to February 11, 2009. Investigators took this as authority to listen to and record all such communications and to access any such previous communications without obtaining court permission, although the wiretap authorizations forbade this practice. The waiver would have supported an order to unseal those communications, but did not authorize their interception or examination. Again, this conduct was said to be supported by legal advice. [@16 and 18].

The defence sought to explore this “privileged advice” about how to handle the wiretaps as part of its abuse of process motion. The motion judge ordered the communications between the investigators and the Crown to be produced for his inspection, despite the assertion by the Crown that it was covered by solicitor-client privilege.

The Crown then stayed the proceeding and appealed.

The first issue on appeal was whether the appeal itself was an abuse of process. The court held that it was not. Citing United States of America v. Fafalios, 2012 ONCA 365 the court accepted that such a decision by the Crown could be permissible if: (1) the effect of the interlocutory ruling is to leave the Crown without a case, or (2) “compliance with the interlocutory order raises a reasonable prospect of harm to an interest the court deems worthy of protection”. [@34].

In this case the criteria were satisfied: I accept that, in the circumstances of this case, there was a reasonable prospect that continuing with the proceeding would have resulted in an abrogation of solicitor-client privilege, which is an interest worthy of legal protection. [@37].

The second issue was whether the privileged had been waived by officers during their testimony on the motion – by indicating they had advice from the Crown. The court agreed with the motion judge that privileged had not been waived. Part of the reason was that the individual officers lacked the authority to waive the privilege, but the court also noted:

The motion judge further held that, quite apart from the authority-to-waive issue, officers’ responses to questions in cross-examination about why they undertook the course of action they did was not sufficient to trigger a waiver of solicitor-client privilege. As witnesses, the officers were bound to answer the questions put to them and this could not amount to waiver of solicitor-client privilege. [@40].

A third issue dealt with on appeal was whether the ruling – aside from the merits of the issue – was premature or unnecessary. The court concluded that it was:

I agree with the Crown’s position that, in the circumstances, the disclosure order was premature. Even if it is open to a court to order disclosure of privileged communications between the Crown and police in the abuse of process context, the Supreme Court has made it clear that solicitor-client privilege should only be abrogated as a last resort.

[...]

In my view, the motion judge erred in ordering production of privileged materials prematurely and absent a finding of necessity, that is to say, a finding that there was no other way of establishing an abuse of process and obtaining a stay. He should have waited until at least the end of the abuse of process motion, and applied the R v. Babos test for abuse of process, at para. 32, without the privileged information. [@50 and 59].

The appeal was allowed and the matter remitted to the motion judge. Rutigliano is a very interesting case and the court’s ruling offers some helpful guidance on this issue. It is interesting – and important – to track the court’s handling of solicitor-client privilege in a way that is uniform regardless of whom the client is. This important privilege must be respected by the courts and this ruling goes a long way toward that end.

DM

There is more than one party to consider

Stephanie Iroguehi received $10,000 from a person she did not know. The money was deposited into her account. She was later charged with fraud and possession of currency she knew was obtained by the commission of an offence – the latter charge related to her withdrawal of that money and delivery of it to a third party. She was convicted of the possession charge but acquitted on the fraud: 2015 OJ No 566.

Shirley Connolly was contacted by phone and told that she had won 2.6 million dollars. She was told that in order to collect the money she would have to participate in a “scheme”. The scheme required her to accept a $25,000 transfer and then withdraw that money and deposit it into other accounts. Despite obvious concerns, Connolly followed through. Unbeknownst to Connolly, at the time, the $25,000 was actually from her own VISA line of credit.

One of the accounts she deposited money into was Iroguehi’s account; $10,000 was deposited. On that same date, through three different transactions, Iroguehi withdrew $4700 of that amount; she later withdrew more of the money.  

Iroguehi was charged. At trial she testified – a summary of her evidence was set out by the trial judge:

In October of 2012, she was asked by a family friend named Edison Obaseki for her bank account # in order to allow a friend of his to transfer $10,000 to her account. She had concerns about whether the $10,000 was the product of fraudulent cheques from schemes she had heard about through friends. Edison apparently assured her that the money was legitimate and stated that he could not use his own account as it was "not working". She agreed and provided Edison with her account information. [Emphasis added]; [@6].

The money was transferred. Iroguehi went to try and withdraw it; she was told she could not withdraw the entire amount. Iroguehi then began withdrawing as much as she could and over the course of the next few days withdrew $8000. Iroguehi later handed over that $8000.

With respect to the possession charge, the trial judge noted that the issue was whether Iroguehi “knew that the money in question was obtained as a result of the commission of an offence” [@15]. The trial judge noted that it was conceded that the money was obtained by the commission of an offence and Iroguehi had possession thereof, thus, the only issue was her knowledge. On this point the trial judge concluded:

I am satisfied beyond reasonable doubt that Ms. Iroguehi was in a state of deliberate ignorance with respect to the illegal source of the funds that were transferred into her account. I make the finding based on a consideration of the following facts:

• The unusual nature of the request from Edison to Ms. Iroguehi that she accept a $10,000 transfer of funds from an unknown source in order for her to in effect launder the money 
• The fact that she questioned Edison about whether the money came from cheque scams, which suggests that Ms. Iroguehi recognized that she was being asked to deal with funds that potentially derived from an illegal source 
• Her failure to ask virtually any questions of Edison, including a sensible explanation of his inability to use his own account, the name of the friend, the reason why her account had been selected and, most importantly, where the money was coming from. This compels me to the conclusion that Ms. Iroguehi simply did not want to know where the money was from, despite having ample reason to suspect that its source was an illegal one.
• The fact that she handed the money over to a complete stranger in the manner she described suggests that she did not want to know the identity of the money's source, bolstering my conclusion that she had reason to suspect its origin was illegal. [Emphasis added]; [@16].

Having convicted Iroguehi of that offence the trial judge considered the fraud count. On that count the trial judge noted that the issue was whether she was “an aider of the unknown principal or principals who were responsible for transferring the $10,000 from Ms. Connolly’s account to her own” [@12]. The trial judge concluded that Iroguehi was not.

However, I am not satisfied beyond reasonable doubt that Ms. Iroguehi was a party to the fraud committed upon Ms. Connolly. Although her actions in providing her account information to Edison assisted Edison (and perhaps others) in fraudulently transferring money to her account from Ms. Connolly's account, there is no evidence that this was her intent. Presumably, in her state of wilful blindness, she was prepared to assist in the laundering of money obtained from illegal activity, be it money obtained from the sale of drugs or stolen property, or money obtained by fraud, human trafficking or any other number of illicit sources. [Emphasis added]; [@18].

In other words, the trial judge found she did not intend to aid Edison in the fraud. Notably, however, the trial judge accepted that she was willing to aid him in transferring money that was unlawfully obtained. The trial judge continued:

It may well be that she knew the money was derived from the commission of fraud, or it may simply be that she chose to remain in a state of deliberate ignorance as to the money's origin.

Ms. Iroguehi's deliberate ignorance to the source of the money is not, in my view, sufficient to prove that she had subjective knowledge of the fraudulent scheme through which that money was obtained. She will therefore be found not guilty on count 1. [@20-21].

With respect, while these comments may support the conclusion that Iroguehi was not a party under section 21(1) of the Code, it does not follow that she should have been acquitted – the trial judge did not address section 21(2) and thus failed to fully consider the potential criminal liability of Iroguehi. Indeed, on the findings made by the trial judge it seems a conviction under section 21(2) was possible, if not inevitable.

Pursuant to section 21(2), if Iroguehi formed an intention in common with another person to carry out an unlawful purpose and she assisted that person therein, then if that person committed an offence that Iroguehi knew or ought to have known was a probable consequence of carrying out the unlawful purpose, she would be a party to that offence. In this section Iroguehi need not intend for the fraud to occur, so long as she intended to enter the common unlawful purpose with foresight that it was a probable consequence.

While the trial judge did not address the findings most pertinent to this section – as he did not consider it – the findings he did make suggest there was a real prospect that a conviction would have been entered through the application of section 21(2).

First, there seems to be little doubt that Iroguehi formed an intention in common to carry out an unlawful purpose and assisted Edison therein; her conviction for possessing money obtained by crime at the behest of Edison and later laundering it is proof of that.

Second, while some findings are absent on this point, the findings made would likely support the conclusion that she knew or ought to have known that fraud was a probable consequence of carrying out the scheme.

The following conclusions reached by the trial judge are illustrative:

• That she recognized that Edison’s request was unusual [@16]
• That she questioned Edison about whether the money came from cheque scams (aka fraud) [@16]
• That she was prepared to assist in the laundering of money obtained from illegal activity, be it money obtained from the sale of drugs or stolen property, or money obtained by fraud, human trafficking or any other number of illicit sources [@18]
• That it “may well be that she knew the money was derived from the commission of fraud” [@20]

These findings would seem to make the conclusion that Iroguehi ought to have known fraud was a probable consequence of the scheme inevitable. Indeed, it seems the only way she did not know that a fraud would be committed is because she chose to remain wilfully blind. If so, she is imputed with actual knowledge and thus, in law, knew fraud was a probable consequence.

Whether or not the trial judge would have come to that conclusion is perhaps beside the point, the real point is that he did not consider the applicability of section 21(2). Having not done so, the trial judge, with respect, stopped short of conducting a full inquiry into the criminal liability in this case.

DM

Silence: A right, yes; an innocent explanation, no

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Albert Brown lived in an apartment. He was the only male living there. The police obtained a warrant to search the apartment for drugs and drug related items. They found both. In a pair of pants hanging on the bathroom door they found 17 one gram packets of cocaine as well as $1275; elsewhere they found a digital scale with cocaine residue on it and bulk marijuana. Brown was charged. He was convicted. He appealed: 2015 ONCA 220.

On appeal Brown argued (i) that the trial judge erred in not excluding the items recovered in the search under 24(2) and (ii) that the verdict was unreasonable.

With respect to the first ground, the Court of Appeal noted that Brown must establish that “the trial judge erred in principle, considered irrelevant facts, or made unreasonable findings” [@6]. Brown failed to do so, that ground was dismissed.

With respect to the reasonableness of the finding, Brown argued that it was unreasonable to conclude that the pants in the bathroom were his. The court rejected this ground.

The appellant places specific emphasis on the police officer’s opinion that the pants found in the bathroom containing the cocaine “could fit the appellant”. He argues that this is not sufficient to prove ownership of the pants, thus knowledge of and control over the cocaine in a pocket, beyond a reasonable doubt. However, the whole of the circumstantial evidence – including the fact that an investigating police officer said the pants belonged to a man and that the appellant was the only man living in the apartment – was sufficient to find the appellant in constructive possession of the cocaine. [@9].

Notably, the court commented on the fact that Brown had not testified in concluding that the verdict was reasonable:

We note that there was no explanation whatsoever for the presence of the cocaine in the appellant’s bathroom. He chose not to testify. This court, when considering the reasonableness of a verdict, is entitled to treat an appellant's silence as indicating that the appellant could not provide an innocent explanation of his or her conduct: see R. v. Dell, [2005] O.J. No. 863 (C.A.), at para. 35. [Emphasis added]; [@10].

This principle is certainly not new, but it seems that it bears repeating once and a while.

DM

Prelim Evidence Not to be “Shorn of Context”

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Along with his co-accused, Jeremy Hall was committed to stand trial on a charge of second-degree murder. At the preliminary inquiry, the Crown properly established that there was circumstantial evidence upon which a trier of fact could find that it Hall's actions satisfied the elements of second-degree murder and he was committed to stand trial.

Hall sought to have his committal quashed. The Superior Court of Justice refused to do so. Hall then appealed: 2015 ONCA 198.

On appeal, he advanced two arguments. Each alleged that the preliminary inquiry judge misapprehended the evidence adduced, and drew impermissible inferences about the actus reus and mens rea of second-degree murder.

As the case for the Crown included circumstantial evidence, the Court of Appeal recalled that the preliminary inquiry judge was entitled – indeed, obliged – to engage in a limited weighing of all the evidence adduced, in order to determine if on the whole of the evidence, it would be reasonable for a properly instructed jury to infer guilt This limited weighing involves an assessment of the reasonableness of the inferences to be drawn. [See para 5, emphasis added. See also R v Arcuri, [2001] 2 SCR 828].

The Court of Appeal emphasized the importance of considering the whole of the evidence in this weighing exercise, stating:

The argument advanced at the preliminary inquiry and on the motion to quash, and repeated here, is commonplace in cases in which the prosecutor seeks to establish the liability of an accused on the basis of circumstantial evidence. What is essentially a single ongoing event is subjected to a metaphysical, frame-by-frame dissection. Each item of evidence is examined in isolation, shorn of its context, then cast aside if a competing inference can be conjured. But such an exercise is to no avail. At each level, first instance, judicial review and on appeal, it is the whole of the evidence that is to be considered. Each item in relation to the others, and to the evidence as a whole. It is all of them together that may constitute a proper basis for committal or conviction as the case may be [emphasis added]. [para 6]

For these reasons, Hall’s appeal was dismissed. Whether a properly instructed jury would ultimately convict him, in the opinion of the Court of Appeal, is beside the point.

SS

The line between trier and advocate

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Timothy Bornyk was charged with break and enter. The police had discovered a fingerprint in the study of a home [latent print] where there had been a break and enter. An expert in fingerprint identification and comparison testified that the print matched Bornyk’s prints [known print]. Notwithstanding this evidence, the trial judge acquitted Bornyk: 2013 BCSC 1927. In doing so the trial judge, inter alia, did his own research, reviewing and then relying upon, some academic articles on fingerprints analysis and did his own comparison of the latent and known prints. The Crown appealed. The British Columbia Court of Appeal allowed that appeal: 2015 BCCA 28.

The issues that were discussed on appeal began at the conclusion of the trial. The trial judge sent counsel a memorandum listing four articles which were critical of fingerprint identification analysis and asked counsel to make further submissions. Crown counsel subsequently sent three additional articles to the trial judge. Oral submissions were later offered by both Crown and defence.

With respect to the articles, the Crown argued that the issues raised therein had no application to the evidence in the present case. The Crown also argued that the articles were not properly evidence and should not be considered [@3].

The Crown also opposed the suggestion that the trial judge could assess the known and latent prints himself and identify differences that undermine the identification made by the expert witness.

The expert was never recalled. The articles were not marked as exhibits.

The trial judge acquitted Bornyk. In doing so he referred to and quoted certain portions of the articles. He further undertook his own comparison of the prints, based on submissions of defence:

In argument, defence counsel noted unexplained discrepancies between the latent and the known fingerprints. Of particular note, in the area of the latent fingerprint stated to be of “low tolerance” and “extremely reliable”, two gaps on the latent fingerprint are not visible on the known fingerprint.

If one goes to the ridge immediately to the left of the respective red dots marking the centre of the delta on the latent and the known fingerprints and traces a line towards the top of the page, on the known fingerprint there is a continuous ridge, whereas on the latent fingerprint there is a gap, a further ridge, another gap, and then a further ridge. [Emphasis added]; [@55-56].

These two approaches, the Crown said, were wrong in law. The Court of Appeal agreed.

With respect to referencing the articles, the Court began by noting that it is “basic to trial work that a judge may only rely upon the evidence presented at trial, except where judicial notice may be taken” [@8]: see R v RSM, 1999 BCCA 218 at para 20; R v Cloutier, 2011 ONCA 484.

In this case the articles, which offered opinions on fingerprint analysis, were “not matters of which the judge could take judicial notice. It is axiomatic that it was not open to the judge to embark on his independent investigation” [@10]. The Court continued:

By his actions, the judge stepped beyond his proper neutral role and into the fray. In doing so, he compromised the appearance of judicial independence essential to a fair trial. While he sought submissions on the material he had located, by the very act of his self-directed research, in the words of Justice Doherty in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 189 O.A.C. 90, 241 D.L.R. (4th) 490 at para. 71, he assumed the multi-faceted role of “advocate, witness and judge”. [@11].

The trial judge further erred when he considered the fruits of his investigation.

Not the least of the problems with the approach adopted by the judge is it opened the door to a mistaken comprehension and application of the information in the articles even if in the field of fingerprint analysis they would be considered authoritative and applicable to procedures employed in this case, an assumption not established in the evidence.

[…]

It is clear from the reasons for judgment that the articles had a material bearing on the acquittal as the judge relied upon them to find that the fingerprint identification was not reliable. Most of the “troubling aspects” he identified were not put to the expert witness, and appear to respond to the articles he located. [@14 and 16]

With respect to the comparison of the fingerprints done by the trial judge, the court found that to be in error as well.

The very point of having an expert witness in a technical area, here fingerprint analysis, is that the specialized field requires elucidation in order for the court to form a correct judgment: Kelliher (Village) v. Smith, 1931 CanLII 1 (SCC), [1931] S.C.R. 672; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, 114 D.L.R. (4th) 419. While it may be desirable that a judge personally observe the similarities and differences between the latent point and known point, such examination should be guided by a witness so as to avoid the trier of fact forming a view contrary to an explanation that may be available if only the chance were provided to proffer it.

The judge relied upon his own observation of what he said was a difference between the latent and known prints. The fingerprint witness however was never questioned on that area of the fingerprint. Whether this “difference” is forensically significant is speculation. This unassisted comparison had a material bearing on the verdict. On this basis alone, also, I would set aside the verdict. [@18-19].

Bornyk is an important and helpful decision. In overturning the acquittal, the Court of Appeal has recognized some very critical and principled points about the role of a trial judge and the treatment of expert evidence.

First, the Court recognized that the trial judge must limit his consideration to the evidence before the court.

Second, the Court recognized that “expert” consideration of the evidence must be done by the expert.

While it is fair to say that expert opinion evidence should be analyzed critically and may need to be considered carefully, Bornyk illustrates that such analysis and consideration must be done properly; triers of fact are limited to a consideration of the evidence available to them.

DM

Pop Bottles, Pizza Boxes, and Powerful DNA: R v Mufuta

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Muamba Mufuta was caught peering down at an unsuspecting woman in a bathroom stall. The only issue at trial was identity. He did not testify at his trial. His sole ground of appeal was whether the verdict was unreasonable: 2015 ONCA 50.

The complainant could not identify the perpetrator, other than by providing a generic description of him as being black with a shaved head. Shortly before the incident occurred, three black men entered the restaurant and ordered food and drinks. They all fit the general description of the voyeur: para 4-5.

After the incident, police seized a partially full bottle of pop from the top of the toilet tank in the washroom stall where the victim had seen the perpetrator. On subsequent testing, the appellant’s DNA was identified and found on the mouth of the pop bottle. A DNA expert testified at trial that forensic examination of the bottle yielded only a single source of DNA. She also testified that Mufuta was the last person to drink from the bottle: paras 6-7.

The restaurant washrooms were cleaned daily, and so the bottle would have been placed there sometime on the day in question. Only one of three scenarios could have occurred: Mufuta was the voyeur, Mufuta left the pop bottle in the bathroom earlier that day, or another man, of similar appearance, carried the pop bottle into the washroom and committed the offence. The trial judge concluded that the latter two scenarios were speculative, unlikely, and totally lacking in evidentiary support: paras 12-13.

On appeal, Mufuta primarily relied on R v Mars, (2006) 206 OAC 387 and R v Wills, 2014 ONCA 178, to argue that the DNA evidence, standing alone, was not capable of supporting the inference that he was the man who was the man seen by the complainant. Further, he argued that the trial judge erred in presuming that the mere presence of his DNA on the pop bottle was highly inculpatory: para 21.

The Court of Appeal upheld the trial judge’s decision.  The Court found Mufuta was understating the significance of the presence on DNA, and that it was a powerful piece of evidence linking him to the scene of the crime. Further, while it was the centrepiece of the Crown’s case on identification, it did not stand alone: para 24.

The Court went on to distinguish the case at bar from both Mars and Wills, commenting that their reference was misplaced.

In Mars, the victim heard a knock at his door and observed an unmasked man holding a pizza box. When he opened the door to decline the pizza, three men swarmed into the house. The victim could not identify the man holding the box, but a neighbour saw “three black youths” running away from the house. The pizza box contained three fingerprints, one of which matched that of Mars. However, at trial, it was established that the date of the fingerprint was indeterminable, and that because Mars was white, the neighbour’s evidence effectively excluded him as one of the robbers: paras 28- 32.

In Wills, two men wearing bandannas forcibly entered a home. One of the men attacked one of the occupants with a baton. During the attack, the victim pulled a white bandanna from the assailant’s face. The police later found the white bandanna, and upon testing, the DNA of at least three people was found on it. At trial, a DNA expert testified they were unable to estimate how long the DNA had been on the bandanna, and that it was also possible no DNA could have been left behind by the intruder wearing it. The home occupants could not identify their attackers. While the Court concluded that the inference it was Wills who wore the bandanna could not be based exclusively on the DNA evidence, the inference of guilt was otherwise supported on the facts. Unlike in Mars, there was also no exculpatory description of the assailants: paras 33-39.

After reviewing these cases, the Court concluded that the fact that only Mufuta’s DNA was found on the pop bottle increased the probative force of the DNA evidence, connected him to the scene of the crime, and supported the inference that he left the bottle in the washroom. It also rendered less reasonable any inference that someone other than Mufuta used the pop bottle: para 40.

Further, in contrast to both Mars and Wills, there was evidence that supported the inference that the DNA had been deposited around the time of the offence:

• Mufuta was the last person to drink from the bottle.
• The bottle was part-full, suggesting recent deposit of the DNA.
• Given the washroom cleaning schedule, it had to have been left in the washroom that day.
• The pop bottle was in the women’s washroom, a place Mufuta had no right to be.
• The bottle was found in the exact stall used by the voyeur [para 41].

The Court found the case to be analogous to the decisions of R v Dewar, 2003 CanLII 48229 (ONCA) and R v Gauthier, 2009 BCCA 24. In Dewar, a pop bottle was found with the accused’s DNA on it, along with his co-accused. The co-accused pled guilty. There was no innocent explanation for the presence of Dewar’s DNA on the bottle in the manager’s office of a burglarized shop. In conjunction with the other facts in Dewar, the trial judge’s reasoning was not speculative and the verdict was not unreasonable: paras 43-44.

In Gauthier, the accused advanced only speculative exculpatory hypotheses for how a beer bottle with his fingerprint on it was found on the victim’s bed. Again, in conjunction with the other available evidence, the only reasonable explanation was that Gauthier had been the intruder: paras 45-46.

Ultimately, the Court of Appeal found that the trial judge expressly considered whether Mufuta’s guilt was the only reasonable inference to be drawn from the facts established on the whole of the evidence: R v Cooper, [1978] 1 SCR 860. There was no basis to interfere with the trial judge’s conclusion. On the totality of the evidence, there was no evidentiary foundation for any explanation of the presence of a partially-consumed pop bottle, bearing Mufuta’s DNA, in the exact washroom stall used by the perpetrator, other than that he was the voyeur. Mufuta’s appeal was dismissed.

SS