Her Majesty the Queen v. Kara Darnley

Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20200309 DOCKET: C62610

Feldman, Lauwers and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Kara Darnley Appellant

Counsel: Philip Campbell, for the appellant Susan L. Reid, for the respondent

Heard: November 28, 2019

On appeal from the conviction entered by Justice Susan E. Healey of the Superior Court of Justice, sitting with a jury, on April 13, 2016.

Paciocco J.A.:

OVERVIEW

[1] The Crown charged Kara Darnley, an Ontario Provincial Police peace officer, with criminal offences relating to two events, what I will call “the witness record incident” and “the drug investigation file incidents”. The Crown theory is that, in both incidents, Cst. Darnley abused her position as a peace officer out of loyalty to her fiancé, Jody Vanier, whom the police suspected of involvement with illicit drug use.

[2] Even before these events occurred, the police had concerns that through her relationship with her fiancé, Cst. Darnley was too close to drug users. Her superiors partnered her with Cst. Fischer who was investigating Cst. Darnley in an undercover capacity.

[3] At her trial, Cst. Darnley argued that the Crown had failed to prove any of the charged offences. She was convicted of breach of trust in connection with both incidents. She was acquitted of obstruction of justice in connection with the witness record incident. [^1]

[4] Cst. Darnley then sought to raise the entrapment defence against the drug investigation file incidents, based on the role played by Cst. Fischer. The trial judge rejected this defence.

[5] Cst. Darnley appeals both convictions, alleging errors during the jury trial and in the disposition of the entrapment defence.

[6] For reasons that follow, I would find that the trial judge committed jury direction errors relating to reasonable doubt, and that the jury rendered inconsistent verdicts relating to the witness record incident. I would also find that errors were made relating to the entrapment defence. I would therefore allow Cst. Darnley’s appeal and set aside both convictions. I would substitute an acquittal for the breach of trust charge relating to the witness record incident and order a new trial on the breach of trust charge relating to the drug investigation file incidents.

MATERIAL FACTS AND LEGAL BACKGROUND

A. THE OFFENCE OF BREACH OF TRUST

[7] Section 122 of the Criminal Code, R.S.C., 1985, c. C-46 creates the offence of breach of trust. It provides:

Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.

[8] The five elements of s. 122 were set out in R. v. Boulanger, 2006 SCC 32, [2006] 2 S.C.R. 49, at para. 58, as follows:

1. The accused is an official;
2. The accused was acting in connection with the duties of his or her office;
3. The accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office;
4. The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and
5. The accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.

B. THE WITNESS RECORD INCIDENT

[9] On December 20, 2010, Cst. Darnley, while off duty, attended her fiancé’s apartment, which he shared with his roommate, Mike Drozdoski. She, her fiancé, and Mr. Drozdoski socialized with Mark Jeffrey and his partner Christine Kuyvenhoven, the couple that resided in the next apartment. Later that evening, Ms. Kuyvenhoven called 9-1-1 about Mr. Jeffrey but was too intoxicated to speak. She handed the phone to Cst. Darnley who acknowledged when asked that she was a police officer. OPP officers attended the residence and Mr. Jeffrey was charged with domestic assault. The police also found 400 grams of marijuana in Mr. Jeffrey’s apartment.

[10] Based upon concerns with Cst. Darnley’s off-duty activities stemming from her relationship with her fiancé, including one incident where she allegedly transported her fiancé and his drug supplier to an alley to drop something off, the Ontario Provincial Police launched an investigation of Cst. Darnley. On March 23, 2012, Cst. Fischer was placed with Cst. Darnley. Cst. Fischer had been disciplined for illegal conduct (stunt driving) and presented herself to Cst. Darnley as a disgruntled, problem officer.

[11] Two days later, on March 25, 2012, the eve of Mr. Jeffrey’s trial, Cst. Darnley accessed electronic police records and printed the witness statements that police had collected during the Jeffrey investigation. She solicited Cst. Fischer’s assistance when the printer jammed.

[12] The following morning, Mr. Jeffrey pleaded guilty to the assault. No witnesses were called to testify. Cst. Darnley was nonetheless charged with breach of trust and obstruction of justice for her conduct relating to the witness records.

[13] Specifically, the charges allege: (1) that Cst. Darnley committed the breach of trust “by releasing confidential police information regarding statements given to members of the Huronia West OPP for the purposes of a criminal prosecution”; and (2) that Cst. Darnley wilfully attempted to obstruct justice by “printing witness statements in relation to a criminal court proceeding and disclosing those statements to witnesses of that proceeding”.

[14] The Crown offered alternative theories at the trial that: (1) Cst. Darnley tainted herself as a witness by accessing the statements; or (2) she tainted the evidence that her fiancé and Mr. Drozdoski would offer by sharing the statements of other witnesses with them. However, the charges against Cst. Darnley are particularized. They allege that her guilt arises from the release or disclosure of the statements, not her own use of them. Therefore, the first theory could not be accepted. The central issue at the trial, and the only factual issue in contest on this charge, was whether Cst. Darnley released or disclosed the statements to any of the witnesses.

[15] The Crown presented no direct evidence that she had done so. It relied instead on the testimony of Cst. Fischer that Cst. Darnley admitted that she had printed the statements so that her fiancé and his roommate Mr. Drozdoski would know what other witnesses had said, and that her fiancé and Mr. Drozdoski looked at the statements.

[16] Cst. Darnley did not testify in her own defence. She defended the allegation by urging that Cst. Fischer was not credible, and that the Crown had failed to prove that Cst. Darnley had released or disclosed the statements to witnesses.

[17] Building on other evidence in the case, Cst. Darnley’s trial counsel also raised the suggestion that Cst. Darnley may have printed the statements in the public interest, so that the witnesses could review their own statements before testifying. If there was a reasonable doubt about this, Cst. Darnley would be entitled to an acquittal, since, as indicated, the fifth necessary element of the offence of breach of trust is that the accused acted with the intention to use his or her public office for a purpose other than the public good: Boulanger, at para. 58.

[18] Specifically, Cst. Darnley’s trial counsel relied upon the testimony of Sgt. Lloyd, an officer involved in the investigation of the charges against Mr. Jeffrey. The officer testified that the police generally make sure that witnesses have a chance to review their own statements before testifying, but he had no recollection of preparing the witnesses personally, nor could he confirm that someone else did so in connection with Mr. Jeffrey’s trial. Cst. Darnley was not subpoenaed to testify at Mr. Jeffrey’s trial the way a civilian witness would be, but instead received an officer notice. She was directed by the Crown to attend as a police witness, and she did so in full police uniform. Moreover, Cst. Darnley had made no attempt to hide the fact that she was printing the witness statements, even asking Cst. Fischer, whom she had known at that point for only two days, to assist her with a paper jam when printing the documents.

[19] The jury convicted Cst. Darnley of breach of trust but acquitted her of the obstruction of justice charge in connection with the witness record incident.

C. THE DRUG INVESTIGATION FILE INCIDENTS

[20] During the two and a half months following Mr. Jeffrey’s trial, Cst. Darnley and Cst. Fischer worked and socialized together extensively. On several occasions, Cst. Darnley expressed concern about her fiancé’s drug use and his friends, and on one occasion, Cst. Fischer witnessed Cst. Darnley using a police database to check on one of her fiancé’s friends. However, no clear evidence of criminality had been obtained. The police decided to conduct an “integrity play”, and then another due to a technical malfunction during the first.

(i) The First Integrity Play

[21] A fake investigation file was created and placed in a yellow folder entitled “Confidential Drug Targets, Wasaga Beach”. The folder was also labelled with the names of three of her fiancé’s friends. Reports and photographs were placed in the file, suggesting that surveillance was being conducted on the men.

[22] On June 10, 2012, the file was left on the detachment photocopier. A concealed camera was trained on the area. That evening, when no one else was present, Cst. Fischer, while wearing a recording device, sent Cst. Darnley to the photocopier. Cst. Darnley discovered the file. She was alarmed, having recently parked her car at one of the target homes. In her conversations with Cst. Fischer, she expressed uncertainty about what to do and wondered whether she should say anything to her fiancé. Cst. Fischer offered to go with her if she decided to tell her fiancé. Cst. Darnley decided to photograph the file, and Cst. Fischer offered to be a lookout. With Cst. Fischer’s encouragement, Cst. Darnley checked the CPIC printouts in the yellow folder to determine when the investigation began, and Cst. Fischer reassured Cst. Darnley that the file would not have been planted intentionally. Cst. Fischer made comments that could be taken to be discouraging Cst. Darnley from approaching Sgt. Lloyd, the purported investigator of the surveillance file.

[23] Later that evening, Cst. Darnley admitted that she had called her fiancé to warn him not to hang out with his friends anymore. When the shift ended, she invited Cst. Fischer to her home. Her fiancé was asleep and Cst. Fischer again assured Cst. Darnley she would be a “second voice” if she decided to talk to him. The next day, Cst. Darnley acknowledged to Cst. Fischer that she had talked to her fiancé and had showed him the photographs of the file. She said that she had asked him not to say anything to anyone about them.

(ii) The Second Integrity Play

[24] Since the camera that was meant to record Cst. Darnley’s discovery of the yellow folder had malfunctioned, police decided to conduct a second integrity play. On June 18, 2012, a box marked with the names of her fiancé’s friends, and the title “Lloyd’s Surveillance Box” was placed on a filing cabinet in the criminal investigation office. Cst. Darnley discovered the box and Cst. Fischer served as a lookout so that Cst. Darnley could examine and photograph the contents of the box. Again Cst. Fischer made comments to allay Cst. Darnley’s concerns that the box may have been planted.

[25] The following evening, June 19, 2012, Cst. Darnley searched Sgt. Lloyd’s desk, but found nothing. Then Cst. Fischer accompanied Cst. Darnley home after Cst. Darnley decided to speak with her fiancé. Cst. Fischer taped the conversation. In that conversation, Cst. Darnley’s fiancé declined Cst. Darnley’s invitation to see the photographs, they discussed who could be providing information to the police, and Cst. Darnley warned him to stay away from the suspected men and commented that she was telling him about the investigation “to protect me and you”.

[26] Cst. Darnley was arrested on July 4, 2012. Her phone was searched and the photos she took were secured, along with a text she had sent to Cst. Fischer confirming that she had advised her fiancé about the contents of the surveillance box.

(iii) The Drug Investigation File Charges

[27] As indicated, Cst. Darnley was charged with both the witness record incident and the drug investigation file incidents.

[28] With respect to the breach of trust charge relating to the drug investigation file incidents, the parties agreed that the sole issue for the jury was “why” Cst. Darnley accessed and photographed the files and shared this confidential information with her fiancé. The Crown urged that her intention was to protect herself and her fiancé and that this was done in her self-interest. Cst. Darnley argued to the contrary that her surreptitiously recorded statements show that she accessed and shared the information with her fiancé in order “to preserve the integrity of her position as a police officer by ensuring that her fiancé, her future husband, discontinued his association with the suspected drug users, drug dealers”, something that was undermining her ability to maintain her proper role as a police officer.

[29] After the jury convicted Cst. Darnley on this count, she moved that the charge be stayed. She said that the integrity plays exceeded the acceptable limits of police conduct by entrapping her. Entrapment can occur in two ways, either: (1) “the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides ”; or (2) “having a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence”: R. v. Mack, [1988] 2 S.C.R. 903, at p. 959. Cst. Darnley argued both branches in the alternative. On May 17, 2016, the trial judge dismissed the motion.

ISSUES

[30] Cst. Darnley raises the following issues on appeal:

A. the trial judge erred by misdirecting the jury on the meaning of reasonable doubt; B. the trial judge erred by providing improper and conflicting jury instructions on the “public good” element of breach of trust and the Crown burden relating to motive; C. the jury verdict of guilty of breach of trust relating to the witness record incident is inconsistent with its verdict of acquittal of obstruction of justice relating to the same incident and is therefore unreasonable; D. the jury erred in finding breach of trust in connection with the drug investigation file incident, given that Cst. Darnley was not trusted and the information in the drug investigation file was not confidential; E. the trial judge misapplied the law of entrapment in denying her post-verdict application for a stay of proceedings relating to the drug investigation file incidents. Specifically, the trial judge erred by,

1. improperly reasoning that peace officers must be held to elevated standards of moral restraint or fortitude; and
2. misunderstanding the average person inquiry by asking whether any OPP officer faced with the two integrity scenarios would inevitably have been induced to commit the breach of trust.

ANALYSIS

A. DID THE TRIAL JUDGE MISDIRECT THE JURY ON REASONABLE DOUBT?

[31] These are the impugned passages from the trial judge’s “reasonable doubt” direction. The contentious words are underlined:

(1) A reasonable doubt is a real doubt that logically arises from the evidence or the lack of evidence. It is a doubt based on reason and common sense after considering all of the evidence as a whole. It may be a doubt created by an inference or conclusion you have drawn from the facts as you find them, provided that the inference or conclusion is not a speculation or guess, but a much stronger conclusion arising from the proven facts and based on the evidence alone. (2) If your doubt is about something you have imagined or made up, or if it is a far-fetched doubt, then it is not a reasonable doubt. If it is a doubt based on sympathy or prejudice, then it is not a reasonable doubt. It must be a doubt about an essential element of the offences charged, and must arise from the evidence . [Emphasis added.]

[32] The Crown concedes that both of the underlined passages are in error.

[33] First, a reasonable doubt need not arise from the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 28. It can arise from the absence of evidence, from what the Crown has failed to prove: R. v. Lifchus, [1997] 3 S.C.R. 230, at para. 36.

[34] Moreover, an inference need not arise from “proven facts”, which is “a standard that is never applicable to an accused”: R. v. Robert (2000), 143 C.C.C. (3d) 330, at para. 17 (Ont. C.A.). This is because a reference to “proven facts” suggests an obligation to establish those facts to a standard of proof, yet a reasonable doubt can arise from evidence that, while not proven to be true to any standard of proof, has not been rejected.

[35] It is also incorrect to link a reasonable doubt to a “conclusion” drawn from the facts. An acquittal need not be based on a conclusion about innocence but can rest on an inability to conclude guilt.

[36] It is also an error to suggest that an exculpatory inference must be “a much stronger conclusion” than a speculation or guess. That language imports the need for a strong inference, when an exculpatory inference relating to a required element of the offence need merely raise a reasonable doubt: Villaroman, at para. 20.

[37] The Crown contends that, in these passages, the trial judge was attempting to prevent the jury from accepting the speculative claims made by the defence about what Cst. Darnley was thinking. I need not resolve whether Cst. Darnley’s arguments were speculative because even if the trial judge was attempting to discourage speculation by the jury, she stated the law incorrectly.

[38] There is no force in the Crown’s contention that these errors lose their significance when the jury charge is read as a whole. Errors relating to the burden and standard of proof may not be reversible “if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply” (emphasis added): R. v. W.(D.), [1991] 1 S.C.R. 742, at p. 758. This is not a case for inferring that these errors did not confuse or mislead the jury.

[39] First, the trial judge provided a precise and misleading direction about drawing exculpatory inferences, and she linked reasonable doubt to evidence-based conclusions. These errors go to the very concept of a reasonable doubt. They cannot be corrected by admonitions to give the accused the benefit of the doubt.

[40] Moreover, none of the correct directions relied upon by the Crown as ameliorative address how exculpatory inferences are to be evaluated, a key feature of the misdirection.

[41] Nor can the trial judge’s misdirection that a reasonable doubt must arise from the evidence be overcome. The first impugned paragraph opens with the correct direction to the jury that a reasonable doubt can arise from the lack of evidence and the reasonable doubt direction ends with the same point. But this does not remove the risk of misapprehension that arises from an unequivocal direction that a doubt must arise from the evidence. There is no way to reconcile those comments, and no basis to conclude that the jury would follow one direction and not the other.

[42] Cst. Darnley’s appeal counsel argues correctly that the errors made by the trial judge undermined both the presumption of innocence and the burden of proof. They effectively reverse the burden of proof and lower the standard of proof required of the Crown. Such errors are magnified in this case, where Cst. Darnley defended herself based on what the Crown had failed to prove. Given the seriousness of these errors and the absence of any reasonable tactical basis for the defence accepting this misdirection, the failure of trial counsel to object to the charge is of no moment.

[43] I would allow this ground of appeal from both convictions.

B. DID THE TRIAL JUDGE PROVIDE CONFLICTING JURY INSTRUCTIONS ON THE “PUBLIC GOOD” ELEMENT OF BREACH OF TRUST AND THE CROWN BURDEN RELATING TO MOTIVE?

[44] It is uncommon for criminal offences to require proof of motive. Typically, the Crown need not prove why someone has chosen to engage in criminal activity, and it is standard to direct juries to this effect. Accordingly, the trial judge directed the jury that “[m]otive … is not one of the essential elements that Crown counsel must prove”. And again, “[a] person may be found guilty of an offence, whatever his motive, or even without a motive”.

[45] However, in a breach of trust charge, it is necessary to inquire into the “purpose” for the accused person’s breach of the standards of responsibility and conduct of their office; for the offence to be complete that purpose must be “other than the public good”.

[46] Historically, courts have used the term “motive” when describing this purpose element: R. v. Williams (1762), 97 E.R. 851 (K.B.); R. v. Borron (1820), 106 E.R. 721 (K.B.). In truth, this is an imprecise use of the term “motive”. As the trial judge explained, motive describes why the accused acted as they did. “Motive” is “what induces a person to act”: The Concise Oxford Dictionary of Current English, 7th ed. The same dictionary defines “purpose” as the “object to be attained, thing intended”, and so, purpose may not be the same as motive. For example, a person’s purpose in using corporate resources may be to complete work on their property, but their motive may be financial: see R. v. Bradt, 2010 CMAC 2, 414 N.R. 219.

[47] But in the factual allegations against Cst. Darnley relating to the drug investigation file incidents, motive and purpose are not easily distinguishable. The Crown theory was that Cst. Darnley’s improper purpose was to protect herself and her fiancé, and both the Crown and the trial judge used the term “motive” to describe that purpose. Accordingly, Cst. Darnley argues that the trial judge erred in giving the standard motive direction in this case, since it is entirely possible that jurors would have been misled by it, thereby disregarding a required element of the breach of trust offence. Specifically, the jury may have relied on the motive direction to ignore the requirement that the Crown prove beyond a reasonable doubt that the appellant’s purpose was other than the public good.

[48] I would not give effect to this ground of appeal. The motive direction was required with respect to the charge of obstruction of justice, and arguably with respect to the breach of trust charge relating to the witness records incident; if the jury was satisfied that Cst. Darnley wanted witnesses to know what other witnesses said in their police statements so that they could testify accordingly (her purpose), in order to convict, the jury would not need to know why she wanted this (her motive).

[49] Certainly, it would have been prudent for the trial judge to clarify the relationship between motive and purpose with respect to the breach of trust charge relating to the drug investigation file incidents. However, approaching the matter functionally, there is no realistic risk that the jury would have used the generic motive direction to disregard the repeated and pointed emphasis given in the course of the trial and in the charge to the “sole issue” between the Crown and the defence, namely “why” Cst. Darnley accessed, copied, and shared the drug investigation files with her fiancé.

C. ARE THE JURY VERDICTS RELATING TO THE WITNESS RECORD INCIDENT INCONSISTENT?

[50] As indicated, Cst. Darnley faced two charges relating to the witness record incident:

COUNT 1. KARA DARNLEY stands charged that on or about the 25th day of March, in the year 2012, at the Town of Wasaga Beach, in the Central East Region, she did, being an official, to wit: a sworn police officer with the Ontario Provincial Police, commit a breach of trust in connection with the duties of her office, by releasing confidential police information regarding statements given to members of the Huronia West OPP for the purposes of a criminal prosecution, contrary to the Criminal Code of Canada.

COUNT 2. KARA DARNLEY stands charged on or between the 25th day of March, in the year 2012, and the 26th day of March 2012, both dates inclusive, at the Town of Collingwood, in the Central East Region, she did wilfully attempt to obstruct the course of justice in a judicial proceeding, by printing witness statements in relation to a criminal court proceeding and disclosing those statements to witnesses of that proceeding, contrary to the Criminal Code of Canada.

[51] The jury convicted her of Count 1 but acquitted her of Count 2. Cst. Darnley argues that these verdicts are genuinely inconsistent, and both could not reasonably have been returned, rendering the conviction unreasonable: R. v. R.V., 2019 ONCA 664, 147 O.R. (3d) 657, at para. 77, leave to appeal granted, [2019] S.C.C.A. No. 345.

[52] Cst. Darnley’s onus of establishing inconsistent verdicts is difficult to meet. The verdicts will not be inconsistent if, approaching the matter realistically and not theoretically, there is any rational or logical basis for the verdicts rendered: R. v. McShannock (1980), 55 C.C.C. (2d) 53 (Ont. C.A.), at pp. 55-56; R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 7. In determining this, the appeal panel must consider the evidence, the positions of counsel, the legal ingredients of the offences, and the trial judge’s instructions to the jury [^2]: R.V., at para. 85.

[53] Cst. Darnley contends that, examined in this way, there is no rational or logical basis for the inconsistent witness record incident verdicts. The critical components of Cst. Darnley’s argument can fairly be expressed this way:

(1) If the jury was satisfied only as to the uncontested fact that Cst. Darnley accessed the witness records, she could not be convicted of either count. This is because the counts particularize, respectively: the release of confidential police information regarding statements given to members of the Huronia West OPP (the breach of trust count); and printing and disclosing those statements to witnesses to that proceeding (the obstruction of justice count). Both charges require more than mere access; (2) The acquittal on the obstruction of justice charge could be explained if the jury was left in reasonable doubt about whether Cst. Darnley’s purpose was to provide witnesses with their own statements, since providing witnesses with their own statements does not obstruct justice. But such a finding cannot explain the breach of trust conviction that was entered, because this offence requires an intention to use public office for a purpose other than the public good. Even if Cst. Darnley was not authorized to assist other witnesses in witness preparation, doing so is not a purpose other than the public good and it would not be a serious and marked departure from the standards expected of a police officer subpoenaed to court as a police witness; (3) On the face of the charges, both verdicts would be appropriate if a finding was made that Cst. Darnley shared the contents of the witness statements, but not the witness statements themselves. This is because the alleged breach of trust charge specifically contemplates “releasing confidential police information regarding statements” (emphasis added) but the obstruction of justice charge is particularized to require disclosure of the printed statements themselves. However, this theory cannot provide a rational basis for the inconsistent verdicts. The only evidence that Cst. Darnley shared anything was Cst. Fischer’s testimony that Cst. Darnley admitted to showing the statements to witnesses. There is simply no evidentiary foundation for a finding that she shared the confidential police information but not the printed statements themselves; and (4) If the jury was convinced beyond a reasonable doubt that Cst. Darnley did share the printed statements of one or more witnesses with one or more of the other witnesses, the only proper outcome would be a conviction on both counts. Witness tainting is so obviously wrong that, manifestly, it is “not in the public interest”, supporting a conviction for the breach of trust charge. Similarly, by its nature, witness tainting subverts the evidence about to be presented to a court and can only be undertaken with intent to obstruct justice, supporting a conviction of the obstruction of justice charge.

[54] I agree with Cst. Darnley. Given the charges, the verdicts cannot logically or rationally be explained based on any of the holdings that could arise on the evidence.

[55] The Crown’s effort to undermine this ground of appeal is defeated by the arguments above. Point (1) rebuts the theory that the jury could have convicted Cst. Darnley of breach of trust for merely accessing witness records. Point (2) rebuts the theory that the obstruction of justice acquittal must have been based on a reasonable doubt about whether her intention in accessing and sharing the statements was to assist in witness preparation. As explained, this theory cannot account for the inconsistent verdicts. Point (3) rebuts the Crown’s attempt to rely on the difference in wording between the charges.

[56] I would allow this ground of appeal, relating to Count 1 for breach of trust in connection with the witness record incident.

D. DID THE JURY ERR IN FINDING A BREACH OF TRUST THAT DID NOT EXIST, RELATING TO INFORMATION THAT WAS NOT CONFIDENTIAL?

[57] Cst. Darnley argues that the integrity plays were conducted because she was not trusted. Without trust, it is improper for the jury to have convicted her of breach of trust. In addition, she argues that since she accessed only a mock police file, no confidentiality was breached.

[58] I disagree. Proof of actual trust of the accused is not an element of the offence of breach of trust. As the elements of the offence make clear, the trust that is breached arises from the office held and the duties and responsibilities bestowed, not from a subjective belief that the accused is likely to honour the trust that the official’s office requires.

[59] I need not determine whether misuse by an official of mock information can support a breach of trust conviction because the files accessed by Cst. Darnley included actual police records, albeit assembled in a misleading way to pique Cst. Darnley’s interest.

E. DID THE TRIAL JUDGE MISAPPLY THE LAW OF ENTRAPMENT RELATING TO THE DRUG INVESTIGATION FILE INCIDENTS?

[60] Cst. Darnley argues that the trial judge erred in law in identifying the legal standards to be applied in determining whether entrapment occurred, specifically, whether the police went beyond providing her with an opportunity to commit an offence by inducing the commission of an offence. Cst. Darnley argues that the trial judge: (a) improperly reasoned that peace officers must be held to elevated standards of moral restraint or fortitude; and (b) misunderstood the average person inquiry by asking whether any OPP officer faced with the two integrity scenarios would inevitably have been induced to commit the breach of trust.

[61] I would find that both errors occurred. They are contained in the ultimate paragraph of the trial judge’s analysis:

The question is whether the “average person” should be ascribed the same “strengths and weaknesses” as the particular accused, in this case a police officer. I think that this must be so, as the test suggests that we are to consider the scenario as viewed through the eyes of someone “in the position” of the accused. The hypothetical average citizen may not, for example, understand all of the repercussions of the release of confidential police information and may not be fully apprised of an OPP officer’s duties to uphold his or her sworn oath of secrecy and oath of office. As a result, he or she may find it understandable that Darnley could be easily lured to reveal confidential information to her fiancé. But another officer, in the same position as Darnley, is not likely, in my view, to come to the conclusion that any OPP officer faced with the two integrity scenarios would have inevitably been induced to commit a breach of trust given his or her knowledge of their obligations . [Emphasis added.] [^3]

[62] It is convenient to begin with the second error identified by Cst. Darnley, namely, the trial judge’s misunderstanding of the average person inquiry. This is a key inquiry in determining whether the police went beyond providing an opportunity to commit an offence and induced the commission of an offence. It involves asking “whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime”: Mack, at pp. 959, 966. Based on this inquiry, if the average person, with strengths and weaknesses, in the position of the accused “might also have committed the offence”, this inquiry supports a finding of entrapment: Mack, at p. 979. This is not the standard the trial judge applied. She asked instead whether an OPP officer “faced with the two integrity scenarios would have inevitably been induced to commit a breach of trust given his or her knowledge of their obligation” (emphasis added). This is a more exacting test than should have been applied.

[63] There are two problems with this statement. First, in Mack, the Supreme Court of Canada did not require a standard of “inevitability”. Lamer C.J., at pp. 959-960, explained how to determine whether the police have gone beyond providing an opportunity and inducing the commission of an offence:

[T]o determine whether the police conduct gives rise to this concern, it is useful to consider whether the conduct of the police would have induced the average person in the position of the accused … I believe such a test is useful not only as an analytical mechanism…. [It] may be inevitable that, when apprised of the factual context of an entrapment case, members of the community will put themselves in the position of the accused; if a common response would be that anyone could have been induced by such conduct, this is a valuable sign that the police have exceeded the bounds of propriety. [Emphasis added.]

[64] Put otherwise, it is a helpful analytical exercise to consider whether the commission of an offence would be “inevitable” or even “a common response”: Mack, at p. 960. If so, this is a valuable sign on its own that the police have exceeded the bounds of propriety in the inducement used. This does not mean, however, that the inevitability standard is the threshold required before the average person factor supports a finding of entrapment. The balance of Mack makes this clear.

[65] The second problem is that, in her inquiry, the trial judge applied an improper conception of the relevant strengths of the average person by effectively concluding that a police officer must be taken to have elevated standards of moral restraint and fortitude. The trial Crown invited this reasoning by submitting that Cst. Darnley’s status as a police officer “really changes the analysis”. He continued:

Because if it’s the average police officer who’s sworn an oath of secrecy, has sworn an oath of office, is under a code of conduct, that changes it. And if that’s the analysis in my respectful submission it’s over and done with at that point. The average police officer would not be touching or doing this type of conduct at all, but its an interesting issue.

[66] What the Crown was clearly suggesting was that because of the oaths an officer makes and the code of police conduct, the moral standards and the standards of resistance to temptation expected of police officers in entrapment cases are elevated. Indeed, the Crown theory that average police officers would abide by their oaths and resist inducements would elevate the standard to the point where police officers could never successfully invoke an entrapment defence.

[67] The trial judge accepted this invitation by relying expressly on the oath of office and then finding that although a hypothetical average citizen may “find it understandable that Darnley could be easily lured to reveal confidential information to her fiancé”, an officer would not have been induced to commit a breach of trust “given his or her knowledge of their obligations”.

[68] Although it is correct to account for the status of the accused as a police officer in establishing the factual context of the event, it is an error to elevate the standard of resistance expected of an accused police officer.

[69] As indicated, the relevant inquiry examines whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of the crime. Naturally, to give context to the inquiry, the hypothetical average person must be contemplated to be a police officer engaged in the relevant policing activity. In the criminal negligence context, R. v. Porto, 2016 ONSC 7353, 3 M.V.R. (7th) 334, aff’d 2018 ONCA 291, 23 M.V.R. (7th) 1, illustrates that a police officer engaged in the course of his or her duties in executing a high-speed response to an emergency has created an elevated risk of danger that heightens the care required. Similarly, in the criminal negligence context, an officer trained in the use of firearms may be expected to exercise that training in dangerous circumstances: R. v. Gosset, [1993] 3 S.C.R. 76. In this sense, it is possible to speak of elevated standards for police officers. This was done in Gosset, at para. 39, as well as in both the lower court and appeal decisions in Porto: see 2016 ONSC 7353, at paras. 67, 75; 2018 ONCA 291, at para. 6. For this reason, the trial judge was correct in the entrapment context in considering Cst. Darnley’s knowledge of the repercussions of releasing confidential police information, and that Cst. Darnley encountered the information in police files while on duty at the police detachment.

[70] However, it is improper when applying the average person test to ascribe elevated standards of moral restraint or fortitude where a police officer is charged.

[71] First, the underlying factual assumption required to do so is controversial. There was no basis on the trial record, nor can it be judicially noticed, that officers attain higher standards of moral integrity and resistance to temptation than average persons, that they are less susceptible to the emotions of compassion, sympathy, and friendship, or more immune from mental illness or substance addiction – factors that Mack calls into consideration where relevant: at p. 966.

[72] More importantly, ascribing moral superiority and a heightened resistance to criminal inducement to police officers subverts the average person standard. In this case, the trial judge recognized that an average person could be easily lured to reveal confidential information to her fiancé. Yet, she went on to consider how a police officer would have responded and denied the defence, primarily for this reason.

[73] In sum, had the trial judge confined herself to the factual circumstances of a police officer trained in handling confidential police information and the implications of its release, she would have been proceeding appropriately. By holding Cst. Darnley to higher moral standards and standards of resistance to emotional pressure, she erred.

[74] The Crown asked that if we find the trial judge to have erred in the entrapment analysis we should go on, as in Mack, and determine the issue rather than send it back for a new trial. Since this charge must go back to trial because of the reasonable doubt error in any event, I would decline to do so.

[75] However, given the possibility of a new trial, I will comment on the Crown’s submission that even if entrapment is ultimately established, this would not be one of those “clearest of cases” where a stay of proceedings is warranted. In fact, it would be an error of law to withhold a stay based on the “clearest of cases” test where entrapment has been found.

[76] The defence of entrapment can only be established in the clearest of cases: Mack, at p. 976. Because there might not have been an offence to prosecute without the entrapment, the conviction for that crime is inappropriate. For this reason, Lamer C.J. said unequivocally, for the court in Mack, at p. 967, “the proper remedy is a stay of proceedings”. The trial judge was correct in recognizing this.

CONCLUSION

[77] I would allow the appeal from the conviction on Count 1 of the indictment, the breach of trust conviction relating to the witness record incident and quash the conviction. I would do so because of the reasonable doubt error, and the inconsistent verdict error.

[78] I would not order a retrial on this charge. As explained, given the specific allegations made, there is no logical or rational basis for justifying different outcomes between this charge (Count 1) and the obstruction of justice charge (Count 2). The obstruction of justice acquittal was not appealed and remains. In the circumstances, it would be unfair to permit the Crown to seek a conviction in a retrial of Count 1 for the same allegation for which Cst. Darnley stands acquitted. Ordering a new trial would invite a new jury to return a verdict inconsistent with Cst. Darnley’s acquittal: R.V., at para. 140. I would therefore substitute a verdict of acquittal on this charge.

[79] I would also allow the appeal from the conviction on Count 2, the breach of trust charge related to the drug investigation file incidents, based on the reasonable doubt error and the entrapment error. I would quash the conviction and order a new trial on this charge.

Released: “K.F.” March 9, 2020

“David M. Paciocco J.A.”

“I agree. K. Feldman J.A.”

“I agree. P. Lauwers J.A.”

[^1]: Cst. Darnley was also charged with an additional, redundant count of breach of trust in connection with the drug investigation file incidents, but that charge was withdrawn after the evidence concluded. [^2]: To be clear, a misdirection cannot be relied upon to explain inconsistent decisions: R. v. R.V., 2019 ONCA 664, 147 O.R. (3d) 657. [^3]: Since it is necessary to quote this passage in order to identify the appealed errors, it should be pointed out that, in asking what another OPP officer would understand or think, the trial judge applied an unconventional perspective that should not be replicated. Objective inquiries are not typically conducted by imbuing the objective actor with appropriate characteristics and circumstances and then asking what such a person would understand or think of the impugned conduct of the accused. Instead, they are conducted by identifying the relevant characteristics and circumstances of the objective actor and then asking what that hypothetical person would have done in all the circumstances: R. v. Creighton, [1993] 3 S.C.R 3. The trial judge did return to this more conventional measure in the last passage of her decision.