Court of Appeal for Ontario
Date: March 2, 2017 Docket: C60116
Judges: Feldman, Gillese and Pepall JJ.A.
Between
Her Majesty the Queen Respondent
and
Rheal Michel Hamilton Applicant/Appellant
Counsel
Jonathan Dawe, for the appellant Craig Harper, for the respondent
Heard: February 2, 2017
On appeal from the convictions entered on December 5, 2014, by Justice Anne Mullins of the Superior Court of Justice, sitting with a jury.
Gillese J.A.:
OVERVIEW
[1] A Rogers Wireless store was robbed. Shortly afterwards, Rheal Michel Hamilton (the "appellant") was arrested in connection with the robbery. He was placed in the back of a police cruiser. After having been read his rights to counsel, the appellant told the arresting officer that he wanted to speak to duty counsel. Despite that, the officer continued to question him. The appellant answered by giving an exculpatory statement about his whereabouts shortly before the robbery (the "First Statement").
[2] At the police station, the appellant spoke by telephone with duty counsel for four or five minutes. Approximately an hour and a half later, the appellant was interviewed by a different police officer. During the interview, the appellant acknowledged that duty counsel had advised him not to speak to the police. The interviewing officer also advised the appellant of his right to silence. However, he did not tell the appellant that nothing the appellant had already said to the police should in any way affect his decision whether to speak with them at that time. Over the course of the interview, the appellant gave substantially the same exculpatory statement as he had before (the "Second Statement").
[3] The appellant and his co-accused were tried together on charges arising from the robbery. The trial took place before a judge and jury.
[4] A pre-trial voir dire was conducted concerning the admissibility of statements that each of the accused had given to the police. The trial judge admitted the Second Statement.
[5] The appellant testified at trial and advanced an alibi that was consistent with the Second Statement except that he said that, just prior to the robbery, he had been with his spouse as opposed to a woman named Sasha.
[6] The jury found the appellant guilty of all charges against him (robbery, using an imitation firearm in the commission of an indictable offence, unlawful confinement, and wearing a disguise with intent to commit an indictable offence). He was sentenced to a net term of 27 months and 10 days' imprisonment.
[7] He appeals against conviction on the basis that the trial judge should not have admitted the Second Statement.
[8] For the reasons that follow, I would allow the appeal, quash the convictions and order a new trial.
BACKGROUND IN BRIEF
[9] At approximately 9:05 p.m. on November 23, 2011, three men robbed a Rogers Wireless store in Vaughan, Ontario.
[10] Exterior security footage from a Tim Hortons restaurant in the same plaza as the Rogers store showed the appellant walking across the parking lot approximately ten minutes after the robbery had ended. A short while later, a bystander reported to the police that someone had been seen running west along Highway 7.
[11] Police Constable McCallum drove along the highway and saw the appellant in the plaza of a Wendy's restaurant. PC McCallum thought that the appellant matched the description of one of the suspects that had been aired over police radio, so he detained him. He asked the appellant where he was coming from and the appellant replied, "Tim Hortons". PC McCallum searched the appellant for weapons, and told him that he was investigating an armed robbery at the Rogers store.
[12] The appellant was then turned over to PC Armas, who had arrived in his own cruiser just behind PC McCallum.
[13] At 9:23 p.m., PC Armas arrested the appellant and placed him in the rear of his police cruiser. Approximately eight minutes after his arrest, PC Armas apprised the appellant of his rights to counsel. After having been cautioned, the appellant indicated that he understood the information that he had been given. He also told PC Armas that he wanted to speak with duty counsel.
[14] Nonetheless, PC Armas continued to question the appellant. The appellant made the First Statement to PC Armas, most of which was in response to questions by PC Armas after the appellant had indicated that he wanted to talk to duty counsel.
[15] The essence of the appellant's First Statement was that he had been taking the bus to Toronto along Highway 7 from his home in Brampton with a woman named Sasha Costello; they had argued; he had left the bus and was on his way to Wendy's when he was detained by the police.
[16] The appellant arrived at the police station with PC Armas shortly before 10 p.m. Shortly after midnight, the appellant spoke privately with duty counsel, by telephone, for four or five minutes.
[17] At approximately 1:45 a.m., the appellant was taken to an interview room, where DC Abreu questioned him. The interview lasted until 3:36 a.m, with several breaks. It was recorded by video and supervised by another officer. During the interview, DC Abreu advised the appellant of his right to silence. But, he did not tell the appellant that his decision whether to speak with them should not be influenced by anything the appellant had already told the police.
[18] DC Abreu testified that although he expected to be briefed about any statements that the appellant had made to other police officers before he interviewed the appellant, at the time of that interview, he was unaware of the First Statement.
[19] During his interview with DC Abreu, the appellant made the Second Statement, which was substantially similar to his First Statement. He said that he and Sasha had been taking the York Region Transit #77 bus along Highway 7 and were travelling to Sasha's home in Toronto. However, after they got into a fight he got off the bus at the stop in front of the plaza in which the Tim Hortons was located. He said that he first went into the Tim Hortons but changed his mind and, while he was walking down the road to Wendy's, he was arrested.
[20] During the interview, the appellant mentioned several times to DC Abreu that he was repeating what he had already told the police. For instance, when DC Abreu asked the appellant what he had been doing in Vaughan, the appellant began his answer by saying, "I already talked to them about that". The appellant then told PC Abreu what he had previously told PC Armas, namely, that he had been taking the bus with a friend. When DC Abreu asked for the friend's name, the appellant replied, "Sasha. I already gave that to the police."
THE IMPUGNED RULING
[21] The Crown brought a pre-trial motion in which it sought to adduce the Second Statement in order to discredit the appellant's story as a fabrication and to invite the jury to infer consciousness of guilt. The Crown did not seek to adduce the First Statement.
[22] The defence conceded the voluntariness of the statements and brought its own application to have the statements excluded on Charter grounds. In that application, the appellant maintained that PC Armas had infringed his s.10(b) rights by continuing to question him after he had indicated his wish to speak with duty counsel and that the Second Statement was tainted. He submitted that both statements should be excluded under s. 24(2) of the Charter.
[23] When the pre-trial voir dire was conducted, both Crown and defence counsel mistakenly believed that the First Statement had not been audio-recorded.
[24] Following the voir dire, in a ruling dated October 21, 2014 (the "Original Ruling"), the trial judge ruled that the Second Statement was admissible. She began by considering the voluntariness of the statements. She concluded the voluntariness section of her analysis at para. 55 of her reasons, saying:
[55] Assuming for these analytic purposes, [the appellant's] utterances at the scene were involuntary, and obtained in circumstances of a breach of his Charter rights, the admissibility of his [Second Statement] must be assessed on the basis of a number of factual determinations. These include the time between the [First Statement] and the [Second Statement], any advertence to the [First Statement], the presence or not of the same officers, and any other similarities of circumstances.
[25] The validity of the trial judge's reasons for admitting the Second Statement is in issue in this appeal. Thus, I set them out below.
Tainting – Mr. Hamilton [the appellant]
[56] In the case of R. v. I. (L.R.) and T. (E.), jurisprudence is cited that confirms that there is no hard and fast rule. Tainting of a statement may be found if the same disqualifying circumstances are considered to be prevalent in the second statement, as were present at the first statement. Or that the evidence establishes that a first statement is a substantial contributing factor to the making of the second.
[57] Here the defence submits that Mr. Hamilton's [Second Statement] was tainted in that utterances attributed to him by Officer Armas to the effect that he was coming from Tim Hortons, that he had traveled by bus, that he was intending to visit a girlfriend, and/or was accompanied by that girlfriend, must have preyed on Mr. Hamilton's mind during the giving of his formal statement while interviewed by Officer Abreu.
[58] When the specific examples that are cited by the defence are considered, those at pages 14, 9 to 10, 18 to 19, 22, 33 and 36 to 37, and having viewed the video-recorded statement, this is simply not borne out.
[59] Officer Abreu related to Mr. Hamilton during the video-recorded statement that witnesses had observed him running towards Wendy's from Tim Hortons. Mr. Hamilton was not confronted with any allegation of having made a statement to any other officer as to his presence at Tim Hortons. Likewise, Mr. Hamilton's account of having been on a bus intending to visit a friend is not prompted by any assertions to him, of having recounted this previously to any other officer.
[60] In short, there is no demonstrable relationship between any utterance earlier made by Mr. Hamilton and his [Second Statement] that can be discerned as having subverted his choice to speak or not with Officer Abreu.
[61] Since the Crown is not seeking to tender the utterances of Mr. Hamilton that preceded his video-recorded statement, I need not make a ruling as to their voluntariness, nor given my finding that there was no taint of the latter by the former, need I make a ruling that excludes any earlier utterances from being given in evidence.
[26] When counsel subsequently discovered that an audio recording of the First Statement was available, the trial judge granted leave to the defence to re-open its Charter application.
[27] In a very brief decision dated November 4, 2014, the trial judge affirmed the Original Ruling.
THE ISSUES
[28] On appeal, the appellant submits that:
the trial judge applied the wrong test when deciding whether to admit the Second Statement and that application of the correct legal test leads to the conclusion that the Second Statement was tainted by the First Statement; and
both statements should be excluded under s. 24(2) of the Charter.
[29] The Crown argues that the appellant should not succeed on either issue. If he does, however, the Crown submits that:
- even if the Second Statement is excluded, the curative proviso should apply.
ANALYSIS
Issue #1: The Second Statement was Tainted
[30] The appellant submits that, when deciding whether to admit the Second Statement, the trial judge applied the wrong test and made the same error that this court identified in R. v. Plaha, 188 C.C.C. (3d) 289 (Ont. C.A.). He contends that a proper consideration of the temporal, contextual and causal connections between the First and Second Statements leads to the conclusion that the Second Statement was tainted.
[31] The Crown submits that the Second Statement was not obtained in a manner that infringed the appellant's Charter rights. The Crown contends that if there was a breach of the appellant's rights in respect of the First Statement, the events that occurred between the First Statement and the Second Statement severed the two such that the Second Statement took place after a "fresh start".
[32] I accept the appellant's submission. To explain why, I begin by considering Plaha and the legal test that it established. I then review the trial judge's reasons to show that she did not decide whether the Second Statement was "tainted" using the Plaha test. Thereafter, I apply the Plaha test to the present case and show why the Second Statement was tainted. Finally, I explain why no "fresh start" occurred in this case.
Plaha
[33] In Plaha, the accused was charged with the murder of his wife. He was detained following the killing. During his interrogation by the police, the accused made five statements. The trial judge found that the first, second and third statements had been obtained in violation of the accused's right to counsel. He excluded those statements. He also excluded the fifth statement on the basis that it was involuntary.
[34] However, the trial judge admitted the fourth statement (the "impugned statement"), which the accused made after consulting with counsel. At the time that the impugned statement was made, the interviewing officers did not make mention of the accused's earlier statements. However, they failed to tell the accused that he was not obliged to speak with them and that nothing he had already said to the police should in any way affect his decision to speak to them at that time.
[35] The trial judge found that the impugned statement was not obtained in a manner that infringed the accused's right to counsel and was not tainted by his previous statements. The accused was convicted. He appealed to this court.
[36] This court allowed the appeal. It held that despite the impugned statement having been made after the accused had spoken with counsel, because of the breaches of the accused's right to counsel that occurred prior to that consultation, the impugned statement was tainted and should have been excluded under s. 24(2) of the Charter.
[37] Doherty J.A., writing for the court, explained that if the impugned statement was considered in isolation from the earlier statements, there was no Charter violation and, hence, no question of excluding it under s. 24(2). However, the impugned statement could not be considered in isolation. Its admissibility had to be resolved under s. 24(2) of the Charter: Plaha, at para. 42.
[38] Doherty J.A. explained that there are two components to the s. 24(2) analysis. The first is a threshold requirement: was the impugned statement obtained in a manner that infringed a Charter right? If that threshold is crossed, one turns to the second "evaluative" component of s. 24(2) to determine whether the admission of the impugned evidence would bring the administration of justice into disrepute: Plaha, at para. 44.
[39] A generous approach is to be taken to the threshold issue. As Doherty J.A. explains at para. 45 of Plaha:
A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be "obtained in a manner" that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous: R. v. Goldhart, 107 C.C.C. (3d) 481 (S.C.C.), at 492-497.
[40] A temporal connection between the Charter breach and the subsequent obtaining of a statement will usually suffice to bring the statement within the ambit of s. 24(2). The measurement of the temporal connection is more than simply counting the minutes or hours between the two. Events that occur during the time interval can colour the significance of the passage of time: Plaha, at paras. 48-49.
[41] Doherty J.A. found that the temporal connection in Plaha was made out. The accused made the impugned statement some six and a half hours after the last violation of his right to counsel. The "mere ticking of the unheard clock" could not distance the impugned statement from the earlier events because during the intervening period, the accused had been sitting by himself in a small interview room and was under the "total control" of the authorities: Plaha, at para. 49.
[42] He also found that there was a contextual connection between the impugned statement and the earlier ones; the second, third and fourth statements were taken in the same place, by the same two police officers, using the same approach: Plaha, at para. 51.
The trial judge did not apply the Plaha test
[43] The Crown submits that because counsel argued Plaha before the trial judge and the judge is presumed to know the law, this court should assume that the trial judge applied the correct legal test. I do not accept this submission for three reasons.
[44] First, the trial judge stated that the voir dire was to determine the "voluntariness" of the statements of the co-accused (Original Ruling, at para. 45), even though defence counsel for the appellant had conceded that voluntariness was not in issue in respect of the First and Second Statements and had framed his application exclusively in terms of the Charter.
[45] Second, in determining whether the Second Statement was tainted, the trial judge referred only to R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504, which addresses the admissibility of statements under the common law rules relating to confessions. The trial judge did not set out or allude to the Plaha test for determining whether, when the police have obtained a statement in violation of s. 10(b), and the suspect gives a second statement after having consulted a lawyer, the second statement was "obtained in a manner" that infringed the Charter.
[46] Third, the trial judge's analysis focused entirely on whether the Second Statement was causally linked to the First Statement, and gave no consideration to the temporal or contextual connections between the two statements.
[47] As para. 45 of Plaha (set out above) makes clear, a causal relationship between the breach and the Second Statement was not necessary. However, the trial judge had to determine whether there was a temporal, contextual or causal link, or some combination of all three, between the First and Second Statements such that the Second Statement could be said to be part of the same transaction or course of conduct. The sufficiency of the connection between the Charter breach and the subsequent statement could be determined only by a case-specific factual inquiry: Plaha, at paras. 45 and 47. The trial judge did not undertake such an inquiry.
The Plaha test applied to this case
[48] In the present case, after the appellant expressed a wish to see a lawyer, PC Armas continued to question the appellant. His failure to hold off further questioning until the appellant had spoken to counsel was a breach of the appellant's s. 10(b) rights: R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269.
[49] Thus, in accordance with Plaha, to decide whether the Second Statement was tainted, the court must review the entire course of events from the breach to the Second Statement to determine whether the Second Statement can be said to be part of the same transaction or course of conduct. In its review, the court must consider the connection between the breach and the obtaining of the Second Statement. The connection may be temporal, contextual or causal, or some combination of the three but it must be more than tenuous (Plaha, at para. 45).
[50] In my view, the temporal and contextual connections between the First and Second Statements bring the latter within the ambit of s. 24(2).
[51] In the present case, there was a shorter separation in time between the appellant's two statements than there was in Plaha. In Plaha, six and a half hours passed between the earlier statements and the making of the impugned statement. In this case, the Second Statement was made four hours after the First Statement. And, just as in Plaha, apart from the brief period of his telephone conversation with duty counsel, the appellant passed his time between the making of the two statements under the total control of the authorities. Thus, the passage of a few hours between the breach and the Second Statement could not distance the latter from it.
[52] As Plaha indicates, a temporal connection between the Charter breach and the subsequent obtaining of a statement is usually sufficient to bring the statement within the ambit of s. 24(2): Plaha, at para. 48.
[53] In any event, in my view, there is also a close contextual link between the appellant's two statements. From the appellant's perspective, DC Abreu's interrogation was a continuation of PC Armas' earlier questioning. Although DC Abreu never confronted the appellant with his statement to PC Armas, the appellant noted several times that he was repeating what he had already told "the police" (i.e., PC Armas).
No Fresh Start
[54] The police can make a "fresh start" by clearly severing their subsequent interrogation from the earlier Charter breach: R. v. Wittwer, [2008] 2 S.C.R. 235, at para. 3. The Crown contends that the Second Statement was made following just such a "fresh start". In support of this contention, the Crown points to the following: the appellant received legal advice from duty counsel before the interview in which he gave the Second Statement; the appellant was given a further caution before the Second Statement was made; different officers were involved in the interview that led to the Second Statement than were involved when the First Statement was made; and, the Second Statement was given without the interviewing officer making reference to the First Statement.
[55] I do not agree that a fresh start occurred in this case.
[56] An accused's consultation with counsel can have the effect of severing a subsequent statement from an earlier breach of the right to counsel but it does not automatically immunize the subsequent statements: Plaha, at para. 47.
[57] I acknowledge all of the following: the appellant received legal advice after the First Statement and before he made the Second Statement; the appellant told DC Abreu that he was aware of his right to silence and that duty counsel had told him not to speak to police; the appellant was aware of the charges that he faced throughout; during the interview, DC Abreu affirmed the appellant's right to silence; and, DC Abreu did not refer to the appellant's First Statement during his interview with the appellant.
[58] However, just as in Plaha, in the present case the police knew or ought to have known that the First Statement was taken in violation of the appellant's s. 10(b) rights and would not be admissible. Had they hoped to obtain a statement free of the possible effects of the earlier breach, they should have followed the clear guidance given in para. 53 of Plaha and:
made it clear to the [appellant] that he was not obliged to say anything to them and more importantly, that his decision whether to speak with them should not be influenced by anything he had already said to them. [Emphasis added.]
[59] While DC Abreu did tell the appellant that he was not obliged to say anything to them, he did not tell the appellant that his decision whether to speak with them should not be influenced by anything he had already told the police (the "secondary caution").
[60] This court's decision in R. v. Woods, 79 W.C.B. (2d) 753 shows that a secondary caution will not always be necessary to prevent the "tainting" of a later statement. However, the facts of Woods are materially different from those in the present case.
[61] In Woods, the appellant made an initial statement to the police in similar circumstances to those of the present case. The appellant answered questions put to him while he was in the police cruiser on the way to the police station, in violation of his s. 10(b) rights. At the time he made the initial statement, the appellant was under arrest for assault and weapons charges.
[62] When the appellant arrived at the police station, he was taken to an interview room and told that he was now charged with murder. The police made it clear that he was not obliged to speak to them. However, the police did not give the appellant a secondary caution.
[63] In the four-hour period that followed the appellant's arrival at the police station, he spoke with three different lawyers for a total of more than 50 minutes before making his second statement. During that period, the police made no effort to question the appellant except about the victim's next-of-kin.
[64] In short, in Woods, the second statement was made more than six hours after the appellant was advised that he faced new charges and after he had extensive consultation with three different lawyers. This court held that the secondary caution was not required in that case because the connections between the initial statement and the later statement were "so weak".
[65] By contrast, in the present case, the charges that the appellant faced never changed and he spoke with duty counsel for only between four and five minutes. For the reasons already given, the temporal and contextual connections between the First and Second Statements were not weak.
[66] Thus, in my view, the Second Statement was not made following a fresh start.
ISSUE #2: Exclusion of the Statements under s. 24(2) of the Charter
[67] Having found a sufficient connection between the First Statement and the Second Statement, the court must assess and balance the factors that the Supreme Court of Canada identified in R. v. Grant, [2009] 2 S.C.R. 353, in order to determine whether to exclude the statements under s. 24(2).
[68] Where a trial judge has considered the proper factors, appellate courts should accord "considerable deference" to the trial judge's ultimate determination: Grant, at para. 86. In this case, such deference is not owed to the trial judge's s. 24(2) analysis because she failed to consider the s. 10(b) violation of the appellant's rights by PC Armas and proceeded on the erroneous basis that the Second Statement was not tainted by the appellant's earlier utterances to PC Armas.
[69] In my view, all three Grant factors favour exclusion of the appellant's statements to the police and, accordingly, I would exclude them. In reaching this conclusion it bears repeating that, as a matter of practice, courts tend to exclude statements obtained in breach of the Charter on the ground that their admission would bring the administration of justice into disrepute: Grant, at para. 91.
i. Seriousness of the Charter-infringing state conduct
[70] Under this factor, the court is to consider the seriousness of the state conduct that led to the breach, including whether the police demonstrated a wilful or reckless disregard of Charter rights: Grant, at para. 74.
[71] The police obligation to "hold off" questioning detainees who have requested a consultation with counsel is firmly established law of long-standing: R. v. Manninen, [1987] 1 S.C.R. 1233, at p. 1242; R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269; R. v. Taylor, [2014] 2 S.C.R. 495, at para. 26.
[72] The First Statement was made in 2011, at which time PC Armas should have been well aware that he was obliged to "hold off" questioning the appellant once the appellant indicated that he wished to consult counsel. By continuing to question the appellant, in my view, PC Armas demonstrated either a wilful or reckless disregard of the appellant's Charter rights.
[73] The preservation of public confidence in the justice system requires that the police adhere to the Charter in obtaining statements from a detained accused: Grant, at para. 93.
[74] Accordingly, the first Grant factor strongly favours exclusion.
ii. Impact on the appellant's Charter-protected interests
[75] This factor is concerned with the interests engaged by the infringed right and the degree to which the violation impacted on those interests: Grant, at para. 77.
[76] At para. 95 of Grant, the majority explains that the detainee's right to make a meaningful and informed choice whether to speak, the related right to silence and the protection against testimonial self-incrimination are rights that protect the individual's interest in liberty and autonomy.
[77] As in Plaha, it cannot be assumed that the appellant would have made the Second Statement had he not already given substantially the same account in the First Statement in violation of his s. 10(b) rights.
[78] Accordingly, this factor also militates in favour of exclusion of the statements.
iii. Society's interest in an adjudication on the merits
[79] At para. 97 of Grant, the majority explained the inquiry to be conducted under the third factor as follows:
The third inquiry focusses on the public interest in having the case tried fairly on its merits. This may lead to consideration of the reliability of the evidence. Just as involuntary confessions are suspect on grounds of reliability, so may, on occasion, be statements taken in contravention of the Charter. Detained by the police and without a lawyer, a suspect may make statements to the police that are based more on a misconceived idea of how to get out of his or her predicament than on the truth. This danger, where present, undercuts the argument that the illegally obtained statement is necessary for a trial of the merits.
[80] In this passage from Grant, the Supreme Court explains that a suspect detained by the police and without a lawyer may make statements based on a misconceived idea of how to escape their predicament, rather than on the truth of those statements. Where that danger is present, as indicated in the foregoing quotation from Grant, it undercuts the argument that admission of the statements is necessary for a trial of the merits.
[81] In the present case, the First Statement was taken in contravention of the appellant's Charter rights and the Second Statement was tainted by the First Statement. Thus, the danger described in para. 97 of Grant is present, with the result that there is a very real concern about the reliability of the statements.
[82] Further, and in any event, the Crown was not relying on the Second Statement for its truth. It sought to have the Second Statement admitted so that it could establish its falsity in support of an inference of consciousness of guilt. That inference was contested because, while the appellant acknowledged that he had lied to the police, he denied having done so in order to conceal his guilt. In the circumstances, it seems self-evident that the Second Statement was not reliable within the meaning of the third Grant factor.
[83] Finally, the statements were not necessary for a trial on the merits. This point is most clearly demonstrated by that fact that the Crown never sought to have the First Statement admitted and, on appeal, argues that the proviso should apply even if the Second Statement is excluded.
Conclusion
[84] Accordingly, all three factors favour exclusion of the Second Statement.
ISSUE #3: The Proviso
[85] The Crown submits that even if the Second Statement is excluded, the curative proviso in s. 686(b)(iii) of the Criminal Code should apply because the "overwhelming circumstantial case" against the appellant inevitably would have led to a conviction.
[86] I do not agree.
[87] In R. v. Sekhon, [2014] 1 S.C.R. 272, at para. 53, Moldaver J., writing for a majority of the Supreme Court, stated:
As this Court has repeatedly asserted, the curative proviso can only be applied where there is no "reasonable possibility that the verdict would have been different had the error . . . not been made" (R. v. Bevan, [1993] 2 S.C.R. 599, at p. 617, aff'd in R. v. Khan, [2001] 3 S.C.R. 823, at para. 28). Flowing from this principle, this Court affirmed in Khan that there are two situations where the use of [the proviso] is appropriate: (1) where the error is harmless or trivial; or (2) where the evidence is so overwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict (paras. 29-31).
[88] The admission of the Second Statement cannot be said to be a harmless or trivial error. The appellant testified at trial and his credibility was in issue. His acknowledged lies to the police would have affected the jury's assessment of his alibi. While the Crown's case against the appellant was strong, in the circumstances, it cannot be said that notwithstanding the error, the trier of fact would have inevitably convicted.
[89] Accordingly, this is not an appropriate case for the application of the curative proviso.
DISPOSITION
[90] For these reasons, I would allow the appeal, quash the convictions and order a new trial.
Released: March 2, 2017 ("K.F.")
"E.E. Gillese J.A."
"I agree. K. Feldman J.A."
"I agree. S.E. Pepall J.A."
