Her Majesty the Queen v. Rudge, 2011 ONCA 791

Her Majesty the Queen v. Rudge [Indexed as: R. v. Rudge]

108 O.R. (3d) 161

2011 ONCA 791

Court of Appeal for Ontario,

O'Connor A.C.J.O., Blair and Epstein JJ.A.

December 15, 2011

Criminal law -- Appeal -- Appeal by Crown from acquittal -- Question of law alone -- Strength of Crown's case lying in persuasive effect of totality of evidence -- Trial judge considering aspects of Crown's evidence separately rather than as a whole and failing to take into account key evidence that undermined theory of defence -- Trial judge's reasons failing to respond to several key pieces of evidence in Crown's case -- Trial judge's piecemeal approach to portions of Crown's evidence and failing to consider other key prosecution evidence amounting to error of law alone in approach to evidence that bore upon ultimate question of guilt -- Crown's appeal from acquittal allowed.

The accused police officer was charged with breach of trust by a public official. He allegedly provided confidential police documents to a criminal organization, the Hell's Angels. The circumstantial evidence against the accused fell into two categories: documents seized by the police at various locations connected to the Hell's Angels; and the accused's cellphone records, which showed a series of conversations between the accused and T, the common law wife of the president of a Hell's Angels chapter. A monitor installed on the printer used by police officers at the Port Colborne police detachment showed that the accused had printed four confidential documents relating to biker gangs. The documents were printed around the time that the cellphone calls were made. The accused took the position at trial that the documents had been stolen from his mail slot in the Port Colborne police detachment by someone else who then provided them to the Hell's Angels (the "third- party-theft theory"). He offered an innocent explanation for his conversations with T. The trial judge found that he was left with a reasonable doubt as to the accused's guilt. The accused was acquitted. The Crown appealed.

Held, the appeal should be allowed.

The strength of the Crown's case lay in the persuasive effect of the totality of the evidence. The trial judge considered the evidence relevant to the seized documents and the phone calls separately. He misapprehended the evidence with respect to the timing of the phone calls, and failed to examine the relevance of the phone calls in the light of the extensive evidence about the circumstances surrounding the discovery of the documents and their connection to both the accused and T. In addition to erroneously scrutinizing the two components of the Crown's case separately, at the cost of assessing the evidence in context as a whole, the trial judge also failed to take into account several key individual pieces of evidence in his analysis of whether the prosecution had established beyond a reasonable doubt that it was the accused who provided the confidential police documents to the Hell's Angels. One of the seized documents was kept, not in the Port Colborne detachment which was the alleged location of the third-party theft, but in a filing cabinet in the Welland detachment to which the accused had access. A second seized document, which contained the accused's fingerprints and which he had printed during a period when he was having extensive contact with T, had information on it, handwritten by T, that could only have been obtained from a password-protected police computer on which the accused had been trained. A third document had been stored in an unmarked binder behind the [page162] sergeant's desk and could not have been taken from the accused's mail slot (the focal point of the third-party-theft theory). The trial judge failed to take stock of the uncontroverted evidence about those documents, all of which undermined the third-party-theft theory of the defence. Although a judge is not required to discuss every piece of evidence adduced by a party, the reasons for judgment must be responsive to the case's live issues and the parties main arguments. The combined effect of the trial judge's piecemeal approach to aspects of the Crown's case and failing to consider other prosecution evidence that significantly undermined the theory of the defence was that he failed to apply a legally correct approach to the evidence that bore upon the ultimate issue of guilt. The trial judge's approach to the evidence amounted to an error of law. Assessed in its entirety, the Crown's case created a strong evidentiary basis for conviction. The Crown met its heavy burden of showing that but for the legal errors, there was a reasonable possibility that verdict would have been different.

APPEAL by the Crown from the acquittal entered by Arrell J. of the Superior Court of Justice, sitting without a jury, on May 13, 2010. [page163]

Cases referred to R. v. B. (G.), 1990 CanLII 115 (SCC), [1990] 2 S.C.R. 57, [1990] S.C.J. No. 57, 111 N.R. 62, J.E. 90-946, 86 Sask. R. 142, 56 C.C.C. (3d) 181, 77 C.R. (3d) 370; R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113, [1997] S.C.J. No. 22, 146 D.L.R. (4th) 437, 210 N.R. 197, J.E. 97-921, 188 N.B.R. (2d) 161, 114 C.C.C. (3d) 481, 7 C.R. (5th) 51, 34 W.C.B. (2d) 285; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, [2006] S.C.J. No. 16, 266 D.L.R. (4th) 42, 347 N.R. 268, J.E. 2006-916, 207 C.C.C. (3d) 481, 38 C.R. (6th) 42, 69 W.C.B. (2d) 721, EYB 2006-104245; R. v. H. (J.M.), 2011 SCC 45, [2011] 3 S.C.R. 197, [2011] S.C.J. No. 45, 421 N.R. 76, 283 O.A.C. 379, EYB 2011-196549, 2011EXP-3033, J.E. 2011-1701, 87 C.R. (6th) 213; R. v. Harper, 1982 CanLII 11 (SCC), [1982] 1 S.C.R. 2, [1982] S.C.J. No. 108, 133 D.L.R. (3d) 546, 40 N.R. 255, 65 C.C.C. (2d) 193, 7 W.C.B. 177; R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, [2000] S.C.J. No. 28, 185 D.L.R. (4th) 626, 254 N.R. 1, J.E. 2000-1059, 144 C.C.C. (3d) 97, 33 C.R. (5th) 1, 46 W.C.B. (2d) 97; R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286, [1992] S.C.J. No. 7, 142 N.R. 141, J.E. 92-1636, 131 A.R. 81, 76 C.C.C. (3d) 193, 16 C.R. (4th) 291, 41 M.V.R. (2d) 161, 17 W.C.B. (2d) 468; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, [1988] S.C.J. No. 80, 88 N.R. 161, J.E. 88-1374, 30 O.A.C. 81, 44 C.C.C. (3d) 193, 66 C.R. (3d) 1, 5 W.C.B. (2d) 309; R. v. Powell (2010), 2010 ONCA 105, 99 O.R. (3d) 671, [2010] O.J. No. 542, 258 O.A.C. 247, 251 C.C.C. (3d) 475; R. v. Schuldt, 1985 CanLII 20 (SCC), [1985] 2 S.C.R. 592, [1985] S.C.J. No. 76, 24 D.L.R. (4th) 453, 63 N.R. 241, [1986] 1 W.W.R. 673, 38 Man. R. (2d) 257, 23 C.C.C. (3d) 225, 49 C.R. (3d) 136, 15 W.C.B. 339; R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595, [2000] S.C.J. No. 53, 192 D.L.R. (4th) 411, 262 N.R. 384, J.E. 2000-2147, 230 N.B.R. (2d) 205, 148 C.C.C. (3d) 513, 38 C.R. (5th) 39, 47 W.C.B. (2d) 579; R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 122 N.R. 277, J.E. 91-603, 46 O.A.C. 352, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302, 12 W.C.B. (2d) 551, EYB 1991-67602; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, [2008] S.C.J. No. 34, EYB 2008-134315, J.E. 2008-1209, [2008] 6 W.W.R. 1, 310 Sask. R. 305, 294 D.L.R. (4th) 106, 57 C.R. (6th) 212, 231 C.C.C. (3d) 289, 77 W.C.B. (2d) 732, 375 N.R. 228; R. v. Wild, 1970 CanLII 148 (SCC), [1971] S.C.R. 101, [1970] S.C.J. No. 69, 11 D.L.R. (3d) 58, 72 W.W.R. 603, [1970] 4 C.C.C. 40, 12 C.R.N.S. 306; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51, 43 D.L.R. (4th) 424, 78 N.R. 351, [1987] 6 W.W.R. 97, J.E. 87-995, 17 B.C.L.R. (2d) 1, 36 C.C.C. (3d) 417, 59 C.R. (3d) 108

Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 122, 676(1)(a) [as am.]

James K. Stewart, for appellant. Ronald N. Brady, for respondent.

The judgment of the court was delivered by

EPSTEIN J.A.: --

I. Overview

1In 2006, the Intelligence Services Branch of the Niagara Regional Police Service (the "NRPS") learned that the Hell's Angels motorcycle gang had possession of a confidential police document. The ensuing investigation (the "Leak Investigation") disclosed that the document had originated from the Port Colborne detachment of the NRPS, where the respondent, Dean Rudge, was then a serving officer. The investigators obtained information that caused them to suspect Rudge as the source of the leak.

2Concurrent with the Leak Investigation, the province's Biker Enforcement Unit ("BEU") was running a multi-force investigation ("Project Tandem") targeting the Ontario Hell's Angels.

3On September 28, 2006, as part of Project Tandem, the police executed search warrants at various locations connected to the Hell's Angels and seized additional documents that could be linked to Rudge.

4On April 4, 2007, Rudge was arrested and charged with breach of trust by a public official contrary to s. 122 of the Criminal Code, R.S.C. 1985, c. C-46. The police obtained a production order for Rudge's cellphone records. These records showed a series of conversations between Rudge and Sandra Taylor, the common law spouse of Ken Wagner, the president of the Niagara chapter of the Hell's Angels.

5In the ensuing 11-day judge-alone trial, the Crown presented substantial circumstantial evidence to show that Rudge, in connection with his duties as a police officer, had provided confidential police documents to a criminal organization, thereby betraying the trust reposed in him by the public as a police officer. This evidence fell into two categories -- the seized documents and their connection with Rudge and records of phone calls between Rudge and Sandra Taylor.

6Rudge denied the allegations against him and adduced evidence in response to the inferences the Crown argued should be drawn from the combined effect of the documents and the cellphone records. With respect to the leaked documents, Rudge called evidence concerning certain weaknesses in the Port Colborne police detachment's building's security system. This was to [page164] support his theory that the documents had been obtained by the Hell's Angels from an unknown person who had broken into (or otherwise gained access to) the building, had taken them and had provided them to the Hell's Angels. With respect to the cellphone calls, Rudge offered evidence in support of an innocent explanation -- that they were related to his efforts to assist Sandra Taylor's daughter, Miranda Taylor, with problems that included substance abuse.

7In brief reasons, the trial judge concluded that he was left with a reasonable doubt as to Rudge's guilt. Rudge was therefore acquitted.

8As I will explain, I would allow the Crown's appeal from acquittal and order a new trial on the grounds that the trial judge (1) failed to examine the evidence as whole in relation to the ultimate question of guilt, and (2) failed to factor into his analysis important evidence relevant to a key issue. In my opinion, the combination of these errors invalidates the acquittal and a new trial is called for.

II. Factual Background

9On the evidence, the trial judge found the following facts, none of which are in dispute.

10The Leak Investigation was triggered by a document that contained information that the Outlaws, a rival motorcycle gang, intended to re-open its St. Catharine's chapter. The information included names, photographs and current places of residence of Outlaws members.

11The document originated from the Port Colborne police detachment where a monitor had secretly been installed on the printer used by the officers. Logs, produced by the monitor, revealed that five confidential police documents relating to biker gangs had been printed. The officer who printed one of the documents provided it to the investigators together with an acceptable explanation as to why he had printed it. Rudge printed the four remaining documents.

12Subsequent to this discovery, on September 28, 2006, the police involved in Project Tandem executed several search warrants at premises under the control of the Hell's Angels or their members, including the Cedar Bay Inn in Port Colborne, the Hell's Angels Clubhouse in Welland, the home of Ken Wagner and Sandra Taylor in Port Colborne, and the home of Gerald Ward, a "full patch" member of the Hell's Angels in Welland.

13These searches produced most of the documents upon which the Crown's case depended. [page165]

The confidential documents

14A brief description of the documents found in each location, and the evidence upon which the Crown relied to connect Rudge to the documents, follows.

15The Cedar Bay Inn was a facility owned by Ken Wagner and operated by Sandra Taylor. In their search of the inn, the police discovered the following two documents in the office from which Sandra Taylor managed the inn:

(a) A calendar indicating Rudge's work shifts for the year 2006

The Crown relied on the fact that Rudge's fingerprints were found on the calendar and evidence that Rudge had visited Taylor at the inn.

(b) A photocopy of a police memorandum containing information about the Hell's Angels' presence at the inn, and about various investigative approaches

The Crown relied on the fact that the original memorandum had been read to officers on duty and then stored in an unmarked binder kept on a shelf in the briefing room behind the sergeant's desk in the Port Colborne police detachment. The document had not been distributed.

16The execution of the search warrant at the home of Ken Wagner and Sandra Taylor produced the following four documents:

(a) A copy of a confidential BEU booklet on Ontario motorcycle gangs that included security information

The Crown relied on evidence that the booklet, distributed to police two years earlier, had Rudge's fingerprints on it.

(b) A copy of a General Occurrence Report concerning Domenic Mercuri (the "Mercuri document")

The Crown called evidence that the document could only have been acquired by someone with access to the Welland detachment. Rudge had such access. The detachment was staffed 24 hours a day.

(c) A copy of a General Occurrence Report concerning Mr. Wagner, discovered together with the Mercuri document [page166]

The Crown relied on the fact that the original document was stored in a filing cabinet in the Port Colborne police detachment where Rudge worked.

(d) A copy of a BEU Outlaw Bulletin, found in a truck in front of the Wagner/Taylor home (the "Outlaws bulletin")

The Crown relied on the fact that Rudge's fingerprints were found on the Outlaws bulletin and that the printer log indicated that he had printed it on May 2, 2006. Furthermore, the document contained, in Sandra Taylor's handwriting, information about where some of the Outlaws lived. This information was only available to those who could retrieve it from a password-protected program on a police computer. Rudge initially denied having received the training necessary for him to access this information, but later admitted to having received the training.

17The execution of the search warrant on the Hell's Angels Clubhouse in Welland yielded an additional document:

(a) A copy of a BEU Hell's Angels bulletin containing, among other things, pictures of gang members

The Crown relied on the fact that Rudge's fingerprints were on the document. The printer logs indicated that on April 16, 2006, Rudge had printed two copies of the bulletin. The other copy was located in Rudge's locker.

18In the course of the search of Mr. Ward's home in Welland, the police found the following document:

(a) A colour copy of the Outlaws bulletin that was found in the truck in front of the Wagner/Taylor home

As with the original version of this document, the copy contained information in Sandra Taylor's handwriting that could only be accessed from the police computer.

19There were two other documents that formed the basis of the charge against Rudge:

(a) In June 2006, an informant observed John Clute in possession of an intelligence bulletin (the "Clute document"). The Clute document indicated that a certain informant had provided police with information about Clute's involvement [page167] with the Niagara Hell's Angels. The police recovered the Clute document from Clute on July 26.

The Crown relied on the printer logs to show that Rudge was the only person who printed the Clute document and that he had done so on May 2, 2006.

(b) Some time prior to June 9, 2006, another confidential intelligence bulletin indicating that John Cane, a known biker, and Jason Meyer had opened an establishment in Beamsville called the Dark Side Tattoo was seen in Cane's possession.

While this document was never recovered, the Crown again relied on the printer logs to demonstrate that this document had been printed only by Rudge and that he had printed it on May 4, 2006.

The cellphone records

20The cellphone records turned over as a result of the production order disclosed extensive contact between Rudge and Sandra Taylor. That contact took place both while Rudge was on duty and while he was off duty. The majority of the contact corresponded temporally with activity material to the two investigations.

21Rudge and Sandra Taylor spoke to each other by cellphone the day after she had complained about Miranda's being picked up in a police car after being found by Rudge standing on the street, malnourished and in a drug-induced haze. An eight-month gap in communication followed. Cellphone contact between Rudge and Sandra Taylor resumed in January 2006, and the records show a cluster of calls in the months of March, April and May 2006. According to the Crown, this timing was significant as Rudge printed one of the four confidential documents in issue in April and the other three in May. The last recorded call during this period took place on June 10, 2006.

22Another eight-month gap ensued. The records demonstrate that telephone communication between Rudge and Sandra Taylor resumed two days before the judicial pre-trial on charges involving incarcerated Welland Hell's Angels members.

Rudge's response to the evidence concerning confidential documents

23While Rudge admitted that he had printed the documents indicated by the monitor on the printer and otherwise had [page168] access to the documents upon which the Crown relied, he took the position at trial that the documents had been stolen from the Port Colborne police detachment by someone else who then provided them to the Hell's Angels (the "third- party-theft theory").

24The evidence Rudge relied upon in support of this theory was his own testimony that, after briefings with other police officers, he commonly left such documents in his mail slot. He also called evidence to show that the building housing the Port Colborne detachment was easily accessible: it was regularly unoccupied and the key-code lock controlling the back door of the building had never been changed.

25There was, however, evidence that significantly undermined Rudge's explanation.

26As I will later explain, the Mercuri document and the Outlaws bulletin were the two most compelling pieces of evidence that was completely incompatible with the third-party- theft theory.

27In addition, the Crown challenged the portion of Rudge's theory that said that during briefings with his platoon-mates, Rudge regularly distributed documents such as those that formed the basis of the Crown's case, and that after these meetings he often left the documents in his mail slot. A number of Rudge's platoon-mates testified that he had never handed out intelligence information at briefings and that he did not keep such documents in his mail slot.

28Furthermore, the evidence was clear that Rudge never reported the disappearance of any document even though those he alleged must have been taken from him included his calendar, his OMG booklet, his Outlaws bulletin, his Hell's Angels bulletin, his Clute memorandum and his Dark Side Tattoo memorandum.

Rudge's response to the cellphone records

29As previously indicated, Rudge explained the phone calls disclosed by the cellphone records as evidence of nothing more than his efforts to help Miranda Taylor with her problems. He testified that throughout the two years after he found Miranda in extremis on the street, he tried to help her. He described assisting her in resolving conflicts with numerous local businesses over her alleged shoplifting activities and, on one occasion, bringing her to be seen by an employee of a resource centre. Rudge's assistance to Miranda was supported by the testimony of several defence witnesses.

30However, other evidence upon which Rudge relied, such as the testimony of the intake worker at the resource centre, a soup kitchen worker and a pharmacist, did not support a conclusion [page169] that he was as heavily involved in helping Miranda as he tried to make out. Indeed, Rudge himself admitted that his involvement was fleeting.

III. The Reasons of the Trial Judge

31Though I later detail the trial judge's reasons more fully, a short summary provides the necessary context at this stage.

32In succinct reasons, the trial judge summarized the evidence, made certain findings, set out the positions of the Crown and the defence, and identified the only issue in dispute as "whether the Crown has proved beyond a reasonable doubt that Mr. Rudge did indeed commit the breach of trust by passing on confidential police documents to the Hell's Angels".

33In the "Analysis" portion of his reasons, the trial judge briefly reviewed Rudge's relationship with Sandra Taylor and the timing of their telephone contact, the documents discovered at Hell's Angels locations and their connection with Rudge, and Rudge's contact with known criminals. The trial judge then concluded that, after applying the analysis set out in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, he was left with a reasonable doubt as to Rudge's guilt.

IV. Issues

34The Crown raises the following issues on appeal: (a) whether the trial judge erred in his treatment of the evidence; (b) whether the trial judge relied in part on speculation or conjecture as the basis for reasonable doubt; and (c) whether the trial judge erred in drawing an adverse inference from the Crown's failure to call certain witnesses.

V. Analysis

Jurisdiction on a Crown appeal from acquittal

35That this court's jurisdiction in this case is extremely limited is not contested. Under s. 676(1)(a) of the Criminal Code, the Attorney General has the right to appeal against an acquittal "on any ground of appeal that involves a question of law alone". The Supreme Court has, on a number of occasions, provided assistance in relation to the narrow limits of the appellate jurisdiction granted by this provision. The point consistently made is that the Crown is not entitled to contest an acquittal on the basis of an error of fact or of mixed fact and law. This limitation has been [page170] interpreted to preclude the Crown from arguing that an acquittal was unreasonable or, provided the trial judge took a legally correct approach to the evidence, that the verdict was not supported by the evidence: see R. v. B. (G.), 1990 CanLII 115 (SCC), [1990] 2 S.C.R. 57, [1990] S.C.J. No. 57, at pp. 70-71 S.C.R.; and R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286, [1992] S.C.J. No. 7, at pp. 294-95 S.C.R.

36To succeed on this appeal from an acquittal, the Crown is also required to demonstrate with a reasonable degree of certainty that the verdict would not necessarily have been the same had the error not been made: see R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, [1988] S.C.J. No. 80, at p. 374 S.C.R.; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, [2006] S.C.J. No. 16, at para. 16; and R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595, [2000] S.C.J. No. 53, at para. 2. An appeal by the Attorney General cannot succeed on a purely hypothetical possibility that the accused would not have been acquitted but for the error of law.

37It is through the lens of this limited right of appeal that I examine the Crown's arguments.

Issue one: mistreatment of the evidence

38In its factum, the appellant submits that the trial judge erred in law through his treatment of the evidence by (a) failing to consider or address relevant evidence on issues of significance; (b) failing to consider the totality of the evidence; and (c) subjecting individual items of evidence to the criminal standard of proof.

39In cases such as this, where the Crown appeals from an acquittal on the ground that the trial judge erred in his or her approach to the evidence, the focus has been on what does and does not constitute an error of law alone: see R. v. Harper, 1982 CanLII 11 (SCC), [1982] 1 S.C.R. 2, [1982] S.C.J. No. 108; R. v. Schuldt, 1985 CanLII 20 (SCC), [1985] 2 S.C.R. 592, [1985] S.C.J. No. 76; R. v. Morin (1988); R. v. B. (G.), supra; R. v. Morin (1992). The distinction is crucial because, as the appellant properly observes in its factum, the Crown has no right of appeal against an "unreasonable acquittal".

40Recently, in R. v. H. (J.M.), 2011 SCC 45, [2011] 3 S.C.R. 197, [2011] S.C.J. No. 45, the Supreme Court was presented with another opportunity to consider an appeal from an acquittal where the Crown's argument was based on the trial judge's treatment of the evidence. Cromwell J., speaking for a unanimous court, referred to the issue as "vexed". But he then [page171] proceeded to identify and succinctly describe, at paras. 25-32, a non-exhaustive list of four situations that have been recognized as giving an appellate court jurisdiction in a Crown appeal from an acquittal where the appeal is based on an erroneous approach to the evidence: (a) it is an error of law to make a finding of fact for which there is no evidence -- however, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purposes of this rule; (b) the legal effect of findings of fact or of undisputed facts raises a question of law; (c) an assessment of the evidence based on a wrong legal principle is an error of law; and (d) the trial judge's failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law.

41An assessment of whether the trial judge's approach to the evidence amounts to the commission of one or more of these errors involves careful consideration of the reasons and the extent to which they are responsive to the live issues in the case. If it is determined that the reasons do disclose an error arising out of the trial judge's treatment of the evidence, the question then becomes whether the Crown has satisfied the onus necessary for this court to set aside the acquittal and order a new trial.

i. The nature of the Crown's case

42According to the Crown, the fabric of its case consisted of two distinct threads of circumstantial evidence that, when woven together, firmly connect Rudge to the provision of confidential police information to the Hell's Angels. Specifically, the Crown argues that the clear inference arising from the combined effect of the links between Rudge and Sandra Taylor and the circumstances of the documents and their discovery is that Rudge obtained the documents or made copies of them and, through Taylor, provided them to the Hell's Angels. In fact, says the Crown, this is the only available inference when all of the evidence is considered and considered as a whole.

ii. The trial judge's reasons

43The "Analysis" portion of the trial judge's reasons consists of 11 brief paragraphs. Four contain the summary of the trial [page172] judge's analysis of the major aspects of the case for the prosecution -- the pattern of phone calls between Rudge and Taylor, and the fact that each of the confidential police documents found in the possession of the Hell's Angels could, in some fashion, be linked to Rudge.

44The trial judge dealt with the phone communications, at para. 43 of his reasons:

Mr. Rudge was vigorously cross-examined by the Crown and for the most part his story remained unchallenged. I accept that he was helping Miranda Taylor overcome her drug, boyfriend and education problems. I accept as well that this necessitated him being in contact with her mother Sandra Taylor either by phone or in person and these conversations were personal and logically would be done privately. Although some calls were clustered in months which had key dates in the prosecution of suspects in Project Tandem, many other calls were clustered at no specific time.

45The trial judge's analysis of the prosecution evidence relating to the documents and their connection with Rudge and Taylor essentially consumed the remainder of his analysis. The key paragraphs are as follows [at paras. 45, 46 and 48].

I find that some of the documents found in Hell's Angels locations were printed by Mr. Rudge and therefore handled by him. I also find that he, like most of what I heard about protocols at the Port Colborne detachment, was less than perfect about securing these documents. They appear to have been accessible to potentially many people.

I have considered at length the evidence of Mr. Rudge regarding his explanation about losing track of his work calendar for 2006 and it ending up at the Cedar Bay Inn when he had initially prepared it for his girlfriend; his assertions that he regularly handed out documents to fellow officers at briefings which was denied by several officers; his innocent explanation about obtaining a police profile for Diane Gale's brother; the cluster of some calls to Sandra Taylor during key times in the Project Tandem investigation. Indeed some of these explanations raise suspicion. . . . . .

I also accept as logical Mr. Rudge's statement that when he was a very young officer he printed a confidential police document for a woman to warn her that her then boyfriend had a criminal record. He was caught and disciplined and says he thereby learned his lesson.

46At para. 53 of his reasons, the trial judge concluded, "I must be sure Mr. Rudge is guilty of the charge laid against him. For all the reasons given I am not sure and therefore he must be acquitted."

iii. Analysis

47It is for the Crown to establish beyond a reasonable doubt that the accused committed the offence with which he or she has been charged. That said, the prosecution is entitled to a legally [page173] correct approach to the evidence that bears upon the determination of whether the onus has been met -- a contextual approach based on a full evidentiary footing in which the proper standard of proof is applied.

48In the context of this case, the trial judge was obligated to consider the combined effect of all of the evidence relevant to the issue of whether it was Rudge who leaked the documents. This included the obligation to take into account the evidence relevant to whether the confidential police documents, each of which could be connected to Rudge, came into the possession of the Hell's Angels from someone other than Rudge taking them from the Port Colborne detachment. And then, if so, the unlikely coincidence that the thief provided them to Sandra Taylor at around the same time as Rudge was having extensive phone contact with her, much of which took place while he was off duty and coincided with activity associated with the two investigations.

49A review of the trial judge's reasons makes it clear that he failed to consider the evidence as he should have.

50While the trial judge did outline much of the evidence that pertained to each of the two components of the Crown's case -- the documents and the phone calls -- his reasons demonstrate that he considered the evidence relevant to each component separately and that he failed to factor into his analysis important evidence that severely undermined the theory of the defence.

51In explaining, at para. 43 of his reasons, why he accepted Rudge's position that his cellphone contact with Sandra Taylor was personal and innocent, there is no indication that the trial judge considered the communications in the context of the other evidence. While the trial judge does note that some of the phone calls were clustered in months that had "key dates in the prosecution of Project Tandem", he dismissed the balance of the calls as being "clustered at no specific time". This was a significant misapprehension of the evidence. In fact, a large number of calls were also clustered around the very times during which the documents were being copied by Rudge. The trial judge did not address the phone calls in the context of this important connection. In short, he failed to examine the relevance of the phone calls in the light of the extensive evidence about the circumstances surrounding the discovery of the documents and their connection with both Rudge and Taylor.

52In the circumstances of this case, the impact of this isolated analysis of the cellphone records goes further. It also contaminated the trial judge's analysis of the evidence involving the confidential police documents, evidence that led to his acceptance of the possibility that someone else wrongly acquired them [page174] and provided them to the Hell's Angels, through Sandra Taylor. In his examination of the document evidence, the trial judge does refer, at para. 46, to "the cluster of some calls to Sandra Taylor during key times in the Project Tandem investigation". However, once again, this mention falls short of a consideration of the evidence as a whole. Moreover, by that point in his reasoning the trial judge had, through his piecemeal approach to the evidence, already accepted a benign explanation for the calls. This is precisely the kind of analytical distortion to which a piecemeal approach to the evidence gives rise.

53I am not persuaded that this brief reference to the phone calls during the trial judge's analysis of Rudge's explanation relating to the documents, even coupled with the comment that "some of these explanations raise some suspicion", is sufficiently responsive to the Crown's key arguments and the live issue: whether a reasonable doubt arose from the suggestion that another individual stole confidential police documents -- all linked to Rudge -- and provided them to Sandra Taylor while Rudge was contemporaneously engaging in extensive phone contact with her.

54This takes me to the Crown's argument that the trial judge also failed to factor material evidence into his analysis of the ultimate question of guilt -- a valid point, in my view.

55In addition to erroneously scrutinizing the two portions of the Crown's case -- the confidential documents and the phone communication -- separately, at the cost of assessing the evidence in context as a whole, it is evident from the trial judge's reasons that he also failed to take into account several key individual pieces of evidence in his analysis of whether the prosecution had established, beyond a reasonable doubt, that it was Rudge who provided the confidential police documents to the Hell's Angels.

56I acknowledge that a trial judge is not required to record an assessment of every piece of evidence in his or her reasons: see H. (J.M.), at paras. 31-32. However, the reasons must be responsive to the case's live issues and the parties' key arguments: see R. v. Walker, 2008 SCC 34, at para. 20; H. (J.M.), at para. 32.

57This, in my view, the trial judge, did not do.

58As I have said, the third-party-theft theory was a key argument. It was also a key part of the trial judge' analysis of whether the Crown had met its burden.

59In relation to this theory, it was highly relevant that the Mercuri document found in the home of Sandra Taylor and Ken Wagner was kept in a filing cabinet in the Welland detachment, to which Rudge had access. This document had no connection [page175] with the Port Colborne detachment building and therefore its discovery in the possession of the Hell's Angels could not be explained by any theft that may have occurred in Port Colborne.

60Circumstances surrounding the Outlaws bulletin found in the vehicle in front of the home of Sandra Taylor and Ken Wagner were equally relevant. Rudge's fingerprints were on the document. He had printed the bulletin during one of the periods when he was having extensive contact with Taylor. And, the document had information on it, handwritten by Taylor, that could only have been obtained from a password-protected police computer on which Rudge had been trained. The characteristics of this document also belied the theft theory.

61The third piece of evidence the trial judge failed to consider in his reasons related to a copy of the police memorandum containing information about the Hell's Angels' presence. This document was discovered at the Cedar [Bay] Inn. While not impervious to the third-party-theft theory, that theory is considerably more unlikely with respect to this document. It had been read to officers on duty, but had not been distributed to them. It was stored in an unmarked binder behind the sergeant's desk and could not have been taken from Rudge's mail slot (the focal point of the third-party-theft theory).

62The trial judge's reasons simply do not demonstrate that he took stock of the uncontroverted evidence about these documents -- significant evidence, given its potential to undermine the defence position -- in conjunction with all of the other proof, in his evaluation of whether the evidence gave rise to a reasonable doubt.

63By assessing the strength of the Crown's case and the plausibility of Rudge's responses to the Crown's case on a piecemeal basis and overlooking important evidence material to the issue to be determined, the trial judge's approach to the evidence was seriously flawed such that it amounts to a misdirection constituting an error of law and bringing the matter within the jurisdiction of this court: R. v. B. (G.), at paras. 31-39.

64It is important to emphasize that the errors I have identified do not concern the weight that the trial judge may or may not have assigned to the evidence, or whether the evidence, properly considered, should have persuaded the trial judge beyond a reasonable doubt of Rudge's guilt. It is not for this court to substitute its own weighing of the prosecution evidence or its own determination on the ultimate question of guilt. As mentioned earlier, the Crown has no appeal on the basis of an "unreasonable acquittal".

65Rather, the errors here arise from the trial judge's departure from the legally correct approach to the evidence that bears [page176] upon the ultimate question of guilt: H. (J.M.), at para. 31; B. (G.), at paras. 31-39. The strength of the Crown's case lay in the persuasive effect of the totality of the evidence, but the trial judge never considered whether the doubt he amassed, looking separately at Rudge's response to each part of the Crown's case, would survive an examination of those explanations considered in the context of the Crown's case as a whole.

66It is therefore apparent that the doubt the trial judge refers to at the close of his reasons was drawn from his consideration of each component of the Crown's case without the support of the other evidence, including evidence that presented a serious threat to the position of the defence. Simply put, the persuasive effect of the totality of the evidence -- the strength of the Crown's case -- was taken out of play.

67I return to Cromwell J.'s four categories of legal error arising from a trial judge's approach to the evidence that he identified in H. (J.M.). Paragraph 31 contains a detailed description of the fourth category -- the failure to consider all of the evidence in relation to the ultimate issue of guilt:

The underlying legal principle is set out in another decision called R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345. The principle is that it is an error of law to subject individual pieces of evidence to the standard of proof beyond a reasonable doubt; the evidence must be looked at as a whole: see e.g., B. (G.), at pp. 75-77 and 79. However, Sopinka J. sounded an important warning about how this error may be identified. It is a misapplication of the Morin principle to apply it whenever a trial judge fails to deal with each piece of evidence or record each piece of evidence and his or her assessment of it. As noted in Morin (1992), at p. 296, "A trial judge must consider all of the evidence in relation to the ultimate issue but unless the reasons demonstrate that this was not done, the failure to record the fact of it having been done is not a proper basis for concluding that there was an error of law in this respect."

68It is readily apparent that this description could easily be said to apply to the errors I have identified in this case. The evidence was not looked at as a whole, an error that invites the corresponding error of the application of the criminal standard of proof to individual items of evidence. In addition, not all of the evidence was considered in relation to the ultimate issue.

69For these reasons, I am of the opinion that the trial judge's approach to the evidence amounted to an error of law.

Issue two: reliance in part on speculation or conjecture as the basis for reasonable doubt

70The Crown also submits that the trial judge erred in concluding that there was a reasonable doubt as to Rudge's guilt based on the mere possibility of an alternative explanation. [page177]

71For this proposition, the Crown relies on, among other cases, R. v. Wild, 1970 CanLII 148 (SCC), [1971] S.C.R. 101, [1970] S.C.J. No. 69. In Wild, Martland J., writing for the majority, held, at pp. 113-14 S.C.R., that a reasonable doubt cannot be based on conjecture, but must be based on a rational conclusion on the evidence. However, in R. v. Schuldt, supra, Lamer J., writing for a unanimous Supreme Court, qualified Wild, at p. 604 S.C.R.:

I do agree with [Martland J.], however, that a finding of fact that is made in the absence of any supportive evidence is an error of law. I must say, however, that that will happen as regards an acquittal only if there has been a transfer to the accused by law of the burden of proof of a given fact.

72This court considered Lamer J.'s reasons in Schuldt in R. v. Powell (2010), 2010 ONCA 105, 99 O.R. (3d) 671, [2010] O.J. No. 542 (C.A.). Juriansz J.A., writing for the court, stated, at paras. 31-32:

[Lamer J.] concluded that the proposition that the total absence of a foundation for a finding of fact is an error of law generally has no application to a trial judge's conclusion that there is reasonable doubt. As the accused does not have to prove the existence of reasonable doubt, no particular evidence to support the finding of reasonable doubt is necessary and the proposition does not apply.

Lamer J. explained there is but one exceptional circumstance where an evidentiary basis is required to acquit. That is where the law provides for a presumption and places a burden on the accused to displace it. In such a case it is an error of law to acquit in the face of the presumption. (Emphasis added)

73Cromwell J., in dealing with this issue in H. (J.M.), confirmed, at para. 25, that the error of law in making a finding of fact in the absence of evidence has no application to a finding of reasonable doubt:

It has long been recognized that it is an error of law to make a finding of fact for which there is no supporting evidence: Schuldt v. The Queen. It does not follow from this principle, however, that an acquittal can be set aside on the basis that it is not supported by the element. An acquittal (absent some fact or element on which the accused bears the burden of proof) is not a finding of fact but instead a conclusion that the standard of persuasion beyond a reasonable doubt has not been met. (Citations omitted)

74Here, the Crown argues that Rudge's evidence concerning his handling of confidential documents and the poor security at the Port Colborne detachment -- evidence that might support the third-party-theft theory -- was not a sufficient basis for a reasonable doubt. But it is clear from the authorities that a lack of evidentiary foundation to support a reasonable doubt is not an error in law capable of grounding an appeal from acquittal [page178] unless the law has shifted the burden of proof to the accused. There has been no such shift in the burden of proof in this case.

75I would not give effect to this ground of appeal.

Issue three: adverse inference

76In rejecting the Crown's argument that Rudge's explanation for the cellphone communication with Sandra Taylor was not credible, the trial judge stated the following, at para. 44 of his reasons:

The Crown elected not to call Sandra Taylor nor her daughter Miranda to dispute this evidence, on the basis that Ms. Taylor had previously lied at the preliminary hearing. It would have been for the Court to determine how much weight to put on any such evidence she might have given. This Court often hears from less than credible witnesses and is perfectly capable of weighing such evidence. No reason was given why Miranda was not called.

77The Crown argues that this paragraph indicates that the trial judge drew an adverse inference against the prosecution based on its failure to call Sandra Taylor and Miranda Taylor as witnesses.

78The Supreme Court of Canada addressed the issue of an adverse inference in the context of the Crown's failure to call a witness in R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, [2000] S.C.J. No. 28. The general rule, applicable in both civil and criminal cases, is that all evidence is to be weighed according to the proof that one side is capable of producing and the other side is capable of contradicting. In the criminal context, the general rule is subject to many conditions to account for the peculiar division of responsibilities between the Crown and the defence. First, the party against whom an adverse inference is sought may provide a satisfactory account for its failure to produce a witness (para. 26). Second, there is a stronger basis for the drawing of an adverse interest where one party has special access to the potential witness (para. 27). Additionally, attention must be paid to the exact nature of the adverse inference sought to be drawn. Binnie J. stated the following, at para. 28:

In J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 297, para. 6.321, it is pointed out that the failure to call evidence may, depending on the circumstances, amount "to an implied admission that the evidence of the absent witness would be contrary to the party's case, or at least would not support it", as stated in the civil case of Murray v. Saskatoon, 1951 CanLII 202 (SK CA), [1952] 2 D.L.R. 499 (Sask. C.A.), at p. 506. The circumstances in which trial counsel decide not to call a particular witness may restrict the nature of the appropriate "adverse inference". Experienced trial lawyers will often decide against calling an available witness because the point has been adequately covered by another witness, or an honest witness has a poor demeanour, or other factors unrelated to the truth of the testimony. Other jurisdictions also recognize that in many cases the most [page179] that can be inferred is that the testimony would not have been helpful to a party, not necessarily that it would have been adverse. (Emphasis added by Binnie J.; citations omitted)

79The Crown submits that no adverse inference was available here as (1) the evidence in question was not "peculiarly within the power of one party to produce", as Rudge could have called the two witnesses; (2) it would not have been "natural" for the Crown to produce the two witnesses as, to confirm the Crown theory, Ms. Taylor would have been required to admit to criminal wrongdoing; and (3) the Crown offered a reasonable explanation for failing to call Ms. Taylor -- she was an admitted perjurer.

80The Crown does not go so far as to suggest that this error alone is sufficient to require a new trial, but rather submits that, when taken together with the erroneous treatment of the evidence discussed above, it provides strength to the argument that the acquittal cannot stand.

81My difficulty with this ground of appeal is that, in my view, the trial judge did not draw an adverse inference from the Crown's failure to call either Sandra or Miranda Taylor. An adverse inference occurs when the trier of fact draws a conclusion about what the testimony of an uncalled witness would have been, to the extent that the trier of fact infers that the evidence would have been detrimental to, or at least would not have assisted, the case of the party who fails to call the witness.

82That is not what happened here. The passage from the trial judge's reasons quoted above is, in my view, nothing more than a negative comment about the Crown's conduct of the case: the trial judge simply notes the fact that the Crown failed to adduce evidence to dispute this aspect of the defence theory. The trial judge does not express any conclusion as to what the evidence of Sandra or Miranda Taylor would have been had either or both of them testified. These are precisely the circumstances found in R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113, [1997] S.C.J. No. 22 and R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51. The Crown failed to call two witnesses and the trial judge noted that this failure left a gap in the Crown's case. He drew no adverse inference against the Crown.

83Accordingly, I would not give effect to this ground of appeal. [page180]

VI. Conclusion

84This court does not lightly overturn an acquittal. However, the trial judge's approach to the evidence must be correct in law so as to ensure that the final step in the process, the weighing of the evidence, is not flawed. Here, the trial judge approached the evidence comprising the case for the prosecution in a manner that amounted to an error in law. This was the result of misdirection and brings the matter into the jurisdiction of this court.

85As previously noted, having established an error of law alone, the Crown must demonstrate that the trial judge's error might reasonably be thought to have had a material bearing on the acquittal.

86The Crown presented a compelling evidentiary foundation for conviction. In this case, advanced through circumstantial evidence, the trial judge was required to factor all of the material evidence into his analysis of the issue of whether the Crown had established that it was Rudge who provided the confidential police documents to the Hell's Angels. This involved a considered assessment of the plausibility of the third-party-theft theory in the light of all of the evidence and all of the evidence as a whole.

87Given the trial judge's failure to approach the evidence in this way, I am of the view that it cannot be said that the verdict would necessarily have been the same absent these errors.

VII. Disposition

88For these reasons, I would allow the appeal, set aside the acquittal and order a new trial.