Court of Appeal for Ontario
Date: 20240311 Docket: C69125
Rouleau, Hourigan and Monahan JJ.A.
Between
His Majesty the King Respondent
and
Roger Wain Foreshaw Appellant
Counsel: Carlos Rippell and Alexander Ostroff, for the appellant Molly Flanagan and Katie Doherty, for the respondent
Heard: January 22, 2024
On appeal from the conviction entered on November 11, 2020 by Justice Faye E. McWatt of the Superior Court of Justice, sitting with a jury.
Hourigan J.A.:
A. Overview
[1] Kerry Romain was stabbed to death in the early morning hours of July 21, 2018. The police seized video footage from numerous cameras in the area. The encounter that resulted in Mr. Romain’s death was not captured on video, but the moments before and after were recorded.
[2] Two days prior to the killing, the appellant’s backpack was stolen outside of a recording studio. Security footage revealed that the person who stole the backpack was a white male on a bicycle.
[3] On July 21, 2018, the appellant was at the same music studio when Mr. Romain biked past at around 12:30 a.m. Video footage depicts the appellant and his acquaintance, Achira Kirinde, moving towards Mr. Romain. A few minutes later, Mr. Romain is shown in the video collapsing on the street. At the same time, the appellant and Mr. Kirinde are seen walking back towards the music studio.
[4] A witness, Carol Williams, drove by the scene at the time and saw two people approach a person on a bicycle. She did not see the stabbing.
[5] The evidence of the appellant and Mr. Kirinde conflicts regarding what happened during the confrontation with Mr. Romain. Mr. Kirinde’s evidence was that the appellant accused Mr. Romain of stealing his backpack and when Mr. Romain denied any knowledge of the theft, the appellant stabbed him once with a knife. In addition, he says that, on the walk back to the studio, the appellant admitted stabbing Mr. Romain, stating something to the effect of “I pushed it in him.”
[6] In contrast to Mr. Kirinde’s version of events, the appellant testified that Mr. Kirinde alerted him to Mr. Romain passing by on his bike and asked if Mr. Romain was the person who stole his backpack. He and Mr. Kirinde approached Mr. Romain and Mr. Kirinde placed his hand on the handlebar of Mr. Romain’s bike and accused him of stealing the backpack. The appellant gave evidence that when he saw that Mr. Romain, who was black, did not resemble the person who stole his backpack, he began walking back toward the studio. According to the appellant, he turned to see the deceased in the middle of the road and thought he was acting strangely because he was intoxicated. He did not know that anything untoward had happened. The appellant further testified that when Mr. Kirinde caught up to him, he gave him a “vicious look” as they returned to the studio.
[7] The appellant was arrested on July 21, 2018, at approximately 4:18 p.m. while in a barbershop. D.C. Smith placed him under arrest, told him that he was charged with second degree murder, and escorted him out of the shop. D.C. Smith communicated his right to counsel from memory because he did not have his memo book with him. He asked the appellant if he understood what he was under arrest for, and the appellant said, “I never do anything. Murder, I never murder anyone. Can you call my mother?”
[8] The transport officer, P.C. McVey, arrived around 4:52p.m. D.C. Smith used P.C. McVey's memo book to read the right to counsel to the appellant at 4:58p.m. The appellant was asked if he understood, and he responded that he did. D.C. Smith handed the appellant over to P.C. McVey at 5:00 p.m. when he was placed into the police car.
[9] At trial, the appellant relied on a third party suspect defence. It was his position that Mr. Kirinde was the perpetrator. Mr. Kirinde disclosed to the Crown that he had a previous conviction for refusing to provide a breath sample, which was subject to a record suspension.
[10] The appellant was convicted of second-degree murder. The grounds of appeal asserted and my conclusion on each ground may be summarized as follows:
Did the trial judge err in prohibiting cross-examination on Mr. Kirinde’s record suspension? Yes. The trial judge erred in law in prohibiting the defence from cross-examining on that conviction. However, the error did not result in a substantial wrong or miscarriage of justice because the conviction was dated and not a crime of dishonesty. Moreover, if cross-examination were permitted, it would have been appropriate for the trial judge to instruct the jury regarding the record suspension and the fact that Mr. Kirinde had been found to be of “good conduct” by the National Parole Board. Therefore, I would dismiss this ground of appeal.
Did the trial judge err by not giving the jury a Mayuran instruction? No. Such an instruction was unnecessary because the appellant’s incriminating out of court statement was not the only direct evidence regarding his participation in the killing. There was also the testimony of Mr. Kirinde that he witnessed the appellant stab Mr. Romain. In these circumstances, it is unhelpful and confusing to a jury to instruct them that, with respect to the statement only, they must apply the standard of proof beyond a reasonable doubt.
Did the trial judge err in applying Browne v. Dunn? No. Trial judges are granted considerable discretion in applying the rule in Browne v. Dunn, (1893) , 6 R. 67 (H.L.). This discretion includes the choice of the appropriate remedy in the circumstances of a given case. There was a basis for the trial judge to provide a Browne v. Dunn instruction and there are no grounds for appellate interference.
Did the trial judge misstate evidence in her charge on the statements to the investigating officer? No. The trial judge recounted the officer’s evidence and explained repeatedly the defence position in this regard. The real objection is that the appellant believes that the evidence could have been stated differently. Neither party to a criminal proceeding has a right to insist on a particular description of the evidence by a trial judge in a jury charge. A trial judge’s references to the facts are for illustrative purposes only and are subject to the facts as found by the jury. It is their assessment of the evidence that counts. The factual review provided by the trial judge was sufficient in the circumstances.
Did the trial judge err in her instruction on a third party suspect? No. There was no legal error in the judge’s instruction on this point. Again, the real complaint is that the appellant believes that the description of the underlying facts could have been put to the jury differently. That said, the trial judge did make an error in recounting the evidence in her third party instruction. However, the error was inconsequential.
Did the trial judge err by finding that there was no s. 10(b) breach and failing to exclude the appellant’s statements to the police? No. This ground of appeal was not pursued in oral argument and the appellant made no written submissions regarding s. 24(2). Regardless, there is no merit to the argument that there was a breach of the appellant’s s. 10(b) rights. The information provided by D.C. Smith adequately conveyed to the appellant his right to counsel, and how and when he could exercise that right. The trial judge’s finding that the appellant understood his rights was well rooted in the evidence, as was her finding that he did not request to re-consult with counsel. In any event, if there were a breach, the evidence should not be excluded under s. 24(2).
[11] For the foregoing reasons, and as described in more detail below, I would dismiss the appeal.
B. Analysis
(1) Cross Examination on Record Suspensions
(a) Background Facts
[12] In considering this ground of appeal, it is essential to understand the significance of Mr. Kirinde and his acquaintance Courtney Brown to this case. As noted, it is common ground that on July 21, 2018, the appellant and Mr. Kirinde followed Mr. Romain and confronted him about the theft of the appellant’s backpack. Mr. Kirinde is an important witness because he testified that he saw the appellant stab the victim. Further, he testified that on the way back to the studio, the appellant made a statement admitting that he stabbed Mr. Romain.
[13] Mr. Brown played a less critical role in the events of that evening, but he too was an important witness. He was outside with the appellant, Mr. Kirinde, and one Francis Hudson when Mr. Romain rode by the studio. Mr. Brown did not join the appellant and Mr. Kirinde when they followed Mr. Romain, and he did not see the confrontation. However, as will be discussed in more detail below, there is evidence that suggests that Messrs. Brown, Kirinde and Hudson did not initially disclose to the police officer at the scene, P.C. Au, that Mr. Kirinde went with the appellant in pursuit of Mr. Romain. The defence submitted that this evidence was important because it is supportive of its argument that Mr. Kirinde was the perpetrator and was a basis for finding that there was reasonable doubt about the appellant’s guilt. Put simply, the defence’s position is that the fact that Messrs. Brown, Kirinde and Hudson did not initially disclose that Mr. Kirinde went with the appellant suggests that they were covering for Mr. Kirinde.
[14] During Mr. Brown’s examination-in-chief, he disclosed that he had a record suspension but did not say what it was for or when the offence took place. The only information the Crown had about the conviction or about the underlying facts upon which it was registered was that it was a drug offence from 20 to 25 years ago. Mr. Kirinde also disclosed to the Crown that he was convicted of refusal to provide a breath sample approximately 12 years prior to the trial and that he had received a record suspension.
[15] The defence’s position was that, although it did not necessarily intend to cross-examine Mr. Brown on his record suspension, the trial judge should conduct a voir dire to explore the underlying conduct related to the conviction. It also brought an application to cross-examine Mr. Kirinde on his record suspension because his credibility was a critical issue. Further, the defence argued that refusing to provide a breath sample was a crime of dishonesty, which made it all the more prejudicial if they were not permitted to cross-examine on the offence.
(b) Ruling by the Trial Judge
[16] The trial judge ruled that it would be impermissible and unfair for the defence to cross-examine Mr. Brown about this record suspension. In so ruling, she relied on s. 6(2) of the Criminal Records Act, R.S.C., 1985, c. C-47 (“CRA”), which stipulates that the information relating to an offence for which a record suspension has been granted is to be “kept separate and is not to be disclosed” to anyone. She also cited s. 10 of the CRA that provides that it is an offence for any person to contravene the CRA. Further, she noted that the process for approval by the Minister of Public Safety and Emergency Preparedness for disclosure under s. 6(2) had not been commenced.
[17] The trial judge expressly declined to follow the decision of Wein J. in R. v. Gyles, [2003] O.J. No. 1924 (Ont. S.C.). There, Wein J. held that if Parliament did not want a pardoned record to be the subject of cross-examination under the Canada Evidence Act, R.S.C. 1985, c. C-5, then it would have used clear language to prohibit such an examination. The trial judge found that this conclusion ignored the fact that the CRA prevents the disclosure of this information without the Minister’s permission. She also found that, given that there was no information regarding the details of the record suspension, it would be unfair to permit cross-examination. In the end, she refused to permit cross-examination on Mr. Brown’s record suspension and informed the jury that he had no criminal record.
[18] The trial judge relied on her holding in respect of cross-examination of Mr. Brown for her ruling on the cross-examination of Mr. Kirinde. She held again that there was nothing before the court about Mr. Kirinde’s record suspension, and there was no ministerial approval to disclose the fact of the conviction. In addition, she emphasized that the underlying facts surrounding the offence were part of the conviction:
The underlying facts are part of that conviction -- even if the defence undertakes not to mention before the jury, any fact of a conviction, but just puts to Mr. Kirinde that he disobeyed a police officer's lawful demand 12 or so years ago.
For reasons set out in my October 30th ruling on this issue, leave was denied. I find that the parsing of the fact of the conviction and the underlying facts is not permissible pursuant to the intent of the Criminal Records Act. It is an artificial attempt to defeat the meaning and purpose of that legislation.
[19] Accordingly, the trial judge prohibited cross-examination on Mr. Kirinde’s record suspension. She declined to determine whether the refusal to provide a breath sample was a crime of dishonesty. Mr. Kirinde was asked by the Crown if he had a criminal record and he testified that he did not.
(c) Legal Principles
[20] The pertinent parts of s. 6 of the CRA provide as follows:
6 (1) The Minister may, by order in writing addressed to a person having the custody or control of a judicial record of a conviction in respect of which a record suspension has been ordered, require that person to deliver that record into the Commissioner’s custody.
(2) A record of a conviction in respect of which a record suspension has been ordered that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be kept separate and apart from other criminal records. Subject to subsection (2.1), no record of a conviction is to be disclosed to any person, nor is the existence of the record or the fact of the conviction to be disclosed to any person, without the prior approval of the Minister.
[21] The leading case on the effect of a record suspension is Re Therrien, 2001 SCC 35, [2001] 2 S.C.R. 3. The facts of that case are very different from the case at bar. There, the court was concerned with a situation where the appellant had applied to be a judge but failed to disclose the existence of a previous conviction for which he had received an administrative pardon. That said, the case is instructive regarding, among other things, the effects of what is now known as a record suspension. The court described the effects, at para. 116, as follows:
Sections 5 and 6(2) CRA. set out the effects of granting a pardon: (1) it is evidence that the National Parole Board, after making the inquiries specified in the Act, was satisfied that the applicant was of good conduct and that the conviction in respect of which it is granted should no longer reflect adversely on his character; (2) it vacates the conviction and removes any disqualification to which the person is subject by virtue of any federal Act or regulation made thereunder; and (3) it results in any record of the conviction being kept separate and apart: in other words, the criminal record is expunged. In and of themselves, these provisions do not persuade me that the pardon can operate to retroactively wipe out the conviction. Rather, they are an expression of the fact that it still exists, combined with a desire to minimize its future consequences. Section 5 (a)(ii) CRA. provides that the pardon is evidence that “the conviction in respect of which the pardon is granted or issued should no longer reflect adversely on the applicant’s character” (emphasis added), implying that it still exists and could so reflect. Second, the effects of the pardon are limited to the legal disqualifications created by federal statutes or the regulations thereunder and therefore exclude all the post-sentence consequences provided in provincial legislation, which also suggests that the pardon has only limited effect. Third, the information contained in the criminal record is not destroyed but is kept separate and apart, whence it may re-emerge should the pardoned person subsequently be no longer of good conduct. [Emphasis in original.]
[22] The court went on to conclude that the effect of a record suspension is not to retroactively wipe out a conviction. In the court’s view, this mean that, despite the fact that a person has received a record suspension, they may still be asked about the conviction and cannot deny its existence. Therefore, the appellant had an obligation to disclose his previous conviction as part of his application to be a judge despite the fact that he had received a record suspension.
[23] I pause to note that the effect of a record suspension is different than that of a free pardon granted under s. 748 of the Criminal Code. Pursuant to that section, where a free pardon is granted, “that person shall be deemed thereafter never to have committed the offence in respect of which the pardon is granted.”
[24] The next significant case on this issue is Gyles, which had a factual situation that was closer to the case at bar. The accused brought an application to cross-examine a Crown witness on a prior conviction for which he was granted an administrative pardon. Wein J., relying on Therrien, observed that a record suspension does not operate to retroactively wipe out a previous conviction. As noted above, she concluded that if Parliament intended to limit the right in s. 12 of the Canada Evidence Act it could have done so explicitly. In ruling that the conviction could be the subject of cross-examination, Wein J. offered the following commentary on the practical impacts of her ruling at para. 19:
Given the evidentiary weight to be afforded to the opinion of the National Parole Board, it may well be that defence counsel will, in most circumstances, hesitate to cross-examine on pardoned convictions in the absence of any direct connection to the matter being tried. To some extent, the power of the judge to limit the scope of cross-examination can also avoid any unfairness to the witness. Nonetheless, in my view the Criminal Records Act does not go so far as to prevent questioning and does not in itself prevent cross-examination on the underlying facts, in the rare case where the pardon becomes known.
[25] In Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2008 SCC 48, [2008] 2 S.C.R. 698, the court considered a situation where an individual who applied for a job as a police officer had previously received a conditional discharge. Because three years had elapsed since the time of her sentencing, she had been pardoned under s. 6.1(1)(b) of the CRA, which provides:
6.1 (1) No record of a discharge under section 730 of the Criminal Code that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be disclosed to any person, nor shall the existence of the record or the fact of the discharge be disclosed to any person, without the prior approval of the Minister, if
(a) more than one year has elapsed since the offender was discharged absolutely; or
(b) more than three years have elapsed since the day on which the offender was ordered discharged on the conditions prescribed in a probation order.
[26] The court referenced Therrien and provided the following commentary regarding what are now known as record suspensions at para. 20:
As Gonthier J. noted in Therrien, the use of the conditional in s. 5 (a)(ii) is significant. A pardon does not have an absolute effect and does not erase the past. Neither a discharge nor a pardon allows a person to deny that he or she was found guilty of an offence (Therrien, at paras. 116 and 122). The facts surrounding the offence did occur, but the pardon helps obliterate the stigma attached to the finding of guilt. Consequently, when the time period provided for in the CRA elapses or a pardon is granted, the opprobrium that results from prejudice and is attached solely to the finding of guilt must be resisted, and the finding of guilt should no longer reflect adversely on the pardoned person’s character. It must be presumed that the person has completely recovered his or her moral integrity.
[27] The court rejected the suggestion that the employer could not have regard to the facts underlying a conviction, reasoning that “to accept the respondent’s argument that the facts giving rise to a conviction may not be considered in assessing whether a candidate is of good moral character would mean that a pardon would not only restore the convicted person’s reputation but would also erase the past, which is not the case”: Montréal, at para. 24.
[28] Finally, a more recent decision of this court is instructive on this issue. In R. v. Montesano, 2019 ONCA 194, 145 O.R. (3d) 474, the court was also considering a case under s. 6.1 of the CRA. The accused plead guilty in 2016 to assaulting his wife. A handwritten notation on his criminal record indicated that he had received an absolute discharge in 2011 for a previous assault on his wife. The trial judge declined to grant the accused a second discharge on the basis that the first discharge had not deterred him from committing another domestic assault. The summary conviction appeal court allowed the accused's appeal, finding that the trial judge erred in considering the accused's discharge.
[29] On further appeal, this court held that s. 6.1(1)(a) “precludes the disclosure not only of the record, but also of the existence and fact of an absolute discharge beyond one year following its imposition, unless the prior approval of the Minister of Public Safety and Emergency Preparedness is obtained”: at para. 9. Therefore, the court found that the trial judge erred in considering the accused’s previous discharge.
[30] Despite the foregoing, this court agreed with the ruling of the summary conviction appeal judge that it was permissible for the purposes of sentencing to have regard to the “factual reality that the incident on which there has been a plea is not the first incident”: Montesano, at para. 11. Therefore, while reliance on the discharge was prohibited, the court did rely on the fact that there was a previous assault in crafting an appropriate sentence. In other words, the court did not go so far as to hold that the existence of the previous assault could not be used by the court.
(d) Application of Legal Principles
[31] On appeal, the appellant restricts his submission to the order prohibiting cross-examination of Mr. Kirinde, arguing that the trial judge erred in law in making that order. I agree with that submission.
[32] In considering this issue it is essential to review the impact of a record suspension. Therrien establishes that, unlike a free pardon, a record suspension does not deem that the offender never committed the offence. Thus, a person may still be asked about such a conviction and cannot deny its existence. It follows, in my view, that a witness may be cross-examined on an offence even where it is subject to a record suspension. Such cross-examination could include both the facts underlying the conviction as well as the conviction itself.
[33] Cross-examination does not impact the fact that the National Parole Board found the person to be of good conduct and that the conviction should no longer reflect adversely on the person’s character. At most, it invites the trier of fact to consider whether the previous conviction impacts the credibility assessment of the witness. That is not an invitation for the trier of fact to adjudge the witness’ character, it is only a factor that the trier of fact may consider in determining whether the conviction impacts the credibility of the witness’ testimony. This is similar to the situation in Therrien. The court found there that those responsible for deciding if the appellant should be recommended as a judge should have the information available to them about his conviction to assess its impact on his candidacy. It was not a finding that he was of bad character; it was only a factor that they should be entitled to consider.
[34] Cross-examination on an offence that is subject to a record suspension also does not impact on the removal of any disqualification under any federal Act or regulation. Finally, cross-examination does not impact on the record of conviction being kept separate and apart. Therefore, none of the effects of a record suspension identified in Therrien are compromised by a cross-examination.
[35] Moreover, given that a witness can be asked about the underlying facts of the offence and about the fact of the conviction, it would be contrary to the purposes underlying the CRA to find that the existence of the record suspension could not be adduced in evidence. Taking this case as an example, it would be inconsistent with the policy objective of minimizing the future consequences of a previous conviction if the defence could cross-examine on the facts of the offence and the fact that it resulted in a conviction, but the Crown was prohibited from adducing evidence that Mr. Kirinde had received a record suspension.
[36] In summary, the trial judge erred in law in finding that the defence was prohibited from cross-examining Mr. Kirinde on his previous conviction. However, that does not end the analysis. The Crown submits that the curative proviso should be applied. I agree that this is a situation where the trial judge’s legal error did not result in a substantial wrong or miscarriage of justice.
[37] The conviction for which the record suspension had been granted was a dated one for an offence that cannot be considered to be a crime of dishonesty. While it is a serious offence, there is nothing that is inherently dishonest in refusing to provide a breath sample. Nor am I satisfied that this was an offence against the administration of justice, as was suggested by the appellant’s counsel in oral argument. Those offences are listed in Part IV of the Criminal Code, which does not include any offence that is analogous to refusing to provide a breath sample.
[38] Further, if the defence were permitted to cross-examine about the conviction, the Crown would have been able to adduce evidence regarding the record suspension. In addition, the trial judge would instruct the jury about the record suspension, including the fact that the National Parole Board, after making the inquiries specified in the CRA, was satisfied that the applicant was of good conduct and that the conviction in respect of which it is granted should no longer reflect adversely on his character. Given these facts, the prohibition against cross-examination did not result in a substantial wrong or miscarriage of justice.
[39] Based on the foregoing, I would dismiss this ground of appeal.
(2) Mayuran Instruction
[40] This ground of appeal relates to the appellant’s alleged confession to Mr. Kirinde that he stabbed Mr. Romain. The error alleged is that the trial judge failed to instruct the jury, pursuant to the dicta from R. v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162, that considering the evidence as a whole, if they believed the appellant’s denial of his confession or were left with a reasonable doubt that he had made the alleged confession, they must reject it and not rely on the alleged statement: Mayuran, at paras. 39-43.
[41] The appellant complains that the trial judge did not distinguish the nature or potential use of the confession by the appellant from any of his other alleged out-of-court statements, telling the jurors to “use [their] common sense” to decide if the appellant made any alleged out-of-court statements and consider them “in the same way as all the other evidence”.
[42] According to the appellant, this error was particularly problematic in the context of the trial judge’s further – admittedly correct – instruction that, unique among witnesses, out-of-court statements made by the appellant which were inconsistent with his trial testimony could be relied upon by them for their truth.
[43] In Mayuran, at para. 43, Abella J. relied on the following statement from the Supreme Court in R. v. MacKenzie, , [1993] 1 S.C.R. 212, at p. 239:
. . . where a statement by an accused at trial is entirely at odds with a previous out-of-court statement by the accused, and the jury believes the statement at trial, or is left in reasonable doubt that it is true, then the jury must reject the out-of-court statement; the accused must be given the benefit of the doubt. In arriving at that conclusion, the jury should, of course, give consideration to the evidence as a whole.
[44] On the facts of Mayuran, Abella J. found, at para. 43, that it was an error not to provide an instruction called for in MacKenzie:
If the jury believed the evidence about Suganthini’s prison confession beyond a reasonable doubt, then it would necessarily have found her guilty of murder. As a result, in accordance with MacKenzie, the trial judge should have instructed the jury that considering the evidence as a whole, if they believed Suganthini’s testimony at trial, or if they were left with reasonable doubt that she had confessed, they must reject the out-of-court statement. The failure to do so was an error.
[45] In the case at bar, the appellant submits that the trial judge should have provided a similar instruction. I am not persuaded by this submission.
[46] In order to understand whether a Mayuran or MacKenzie instruction is required in a given case, it is necessary to consider the Supreme Court’s comments in R. v. White, , [1998] 2 S.C.R. 72, at pp. 103-104, which clarified the limited category of cases where such an instruction is required:
MacKenzie pointedly does not provide that a jury may sift through the evidence and reject any item that is not proven beyond a reasonable doubt. Unlike Morin, MacKenzie dealt with the credibility of conflicting statements going directly to the ultimate issue in dispute. The jury’s decision to believe or disbelieve the statement relied upon by the Crown necessarily amounted to choosing between the two competing theories of the case. In those limited circumstances, it was held that the trial judge could instruct the jury not to believe the Crown’s evidence if, in light of the case as a whole, including the contrary testimony of the accused, they had a reasonable doubt that the evidence was true ... Given the dispositive nature of the evidence in question, there is little risk that such an instruction would be misleading, since a jury would ultimately have to apply the criminal standard to the evidence in any event by virtue of the general instructions regarding the burden of proof. Therefore, although the instruction does focus the jury’s attention on two pieces of evidence, in its effect it is not much different from telling them that if all the evidence in the case raises a reasonable doubt in their minds about the guilt of the accused, they must acquit.
[47] In the case at bar, the alleged confession was not the critical piece of evidence that effectively decided the case. There was also direct evidence from Mr. Kirinde that he saw the appellant stab Mr. Romain. Thus, this was not a situation where the jury’s finding on whether the confession was made was necessarily conclusive of the appellant’s guilt or innocence. For example, the jury might have reasonable doubt regarding whether the confession was made but be satisfied that the appellant was guilty based on the testimony about the stabbing in the context of all of the other evidence.
[48] In my view, it would be confusing and counterproductive to instruct the jury that they must be satisfied beyond a reasonable doubt that the confession was made but that the eyewitness account of the stabbing should be treated like any other piece of evidence. Therefore, I would dismiss this ground of appeal.
(3) Browne v. Dunn
(a) Background Facts
[49] At the pre-charge conference, the Crown submitted that witnesses were not confronted with two pieces of the appellant’s evidence in violation of the rule in Browne v. Dunn. First was the evidence that Mr. Kirinde put his hands on the bicycle. Second was that Mr. Kirinde gave the appellant a “vicious look” on the way back to the studio.
[50] It was the position of defence counsel that these were insignificant issues and did not warrant a Browne v. Dunn instruction. Regarding the handlebar evidence, defence counsel submitted that there was no unfairness to the Crown because Ms. Williams described what each of the two men were doing with their hands. With respect to the vicious look, the defence made two submissions. First, it was argued that Mr. Kirinde could not comment on the look because it went to the state of mind of the appellant. Second, the defence submitted that it was clear from the tenor of the cross-examination that the appellant was rejecting Mr. Kirinde’s version of events and therefore cross-examination on this minor point was unnecessary.
[51] The trial judge chose to give the standard Browne v. Dunn instruction regarding the handlebar evidence. Regarding the vicious look evidence, she provided a modified instruction, stating in part, “Mr. Kirinde was not cross-examined, however, on the fact that he looked at Mr. Foreshaw viciously after the incident. You might consider this a detail in Mr. Foreshaw’s evidence that did not need to be put to Mr. Kirinde under this rule. It is for you to decide.”
[52] On appeal, the same objections to these instructions raised by the defence at the pre-charge conference are renewed by the appellant. In addition, the appellant submits that the trial judge erred in electing to instruct the jury instead of ordering the less drastic remedy of recalling Ms. Williams and Mr. Kirinde.
(b) Legal Principles
[53] Underlying the rule in Browne v. Dunn is the principle of fairness. It was developed to respond to a situation where a witness is contradicted by other testimony, but where opposing counsel have not put the alternate version of events to the witness in cross-examination.
[54] The rule as it is presently understood was most comprehensively described by Watt J.A. in R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81. The following points from his analysis are relevant to this appeal:
- It is not a fixed rule, and the extent of its application lies within the sound discretion of the trial judge and depends on the circumstances of each case.
- Compliance with the rule does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. Instead, the cross-examination need only confront the witness with matters of substance on which the party seeks to impeach the witness' credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness' story is not accepted.
- It may be apparent from the tenor of counsel's cross-examination that the cross-examining party does not accept the witness' version of events. Where the confrontation is general, known to the witness and the witness' view on the contradictory matter is apparent, there is no need for confrontation and no unfairness to the witness in any failure to do so.
- The requirement of cross-examination does not extend to matters beyond the observation and knowledge of the witness or to subjects upon which the witness cannot give admissible evidence.
- Appellate courts must accord substantial deference to the discretion exercised by a trial judge in deciding what remedy is appropriate for breach of the rule.
(c) Application of Legal Principles
[55] Regarding the issue of the vicious look, I reject the argument that Mr. Kirinde could not comment on the look because it went to the state of mind of the appellant. The look described by the appellant was one where the Mr. Kirinde eyes were wide open, and he blew down with his mouth. While Mr. Kirinde could not testify regarding how the appellant perceived this look, he certainly could have testified about whether he gave the look to the appellant.
[56] Second, as noted, the appellant submits that it was clear from the tenor of the cross-examination that the appellant was rejecting his version of events and therefore this was a minor matter that did not require cross-examination. This argument is unavailing. It is clear that the vicious look was the explanation proffered by the appellant to account for why he left the studio a short time after the stabbing. Therefore, this was a specific and important area where it was open to the trial judge to provide a Browne v. Dunn instruction.
[57] I also accept the submission of the Crown that any alleged prejudice suffered by the appellant as a consequence of this instruction was significantly mitigated by the trial judge’s instruction. As noted, she specifically told the jurors that “You might consider this a detail in Mr. Foreshaw’s evidence that did not need to be put to Mr. Kirinde under this rule. It is for you to decide.”
[58] Regarding the handlebar evidence I accept the submission of the appellant that Ms. Williams gave evidence that one man had his hands in his pocket and the other was gesturing with his hands. It was open for the jury to infer that neither man had their hands on the handlebars. However, the judge determined that this was an area of sufficient significance that the specific allegation should have been put to her. That was a judgment call for the trial judge to make and it is owed significant deference. I would not interfere with that discretion because the handlebar evidence was important. If it were believed, it might cause the jury to have reasonable doubt about whether the appellant was the perpetrator because it suggested that Mr. Kirinde was the aggressor in the confrontation with Mr. Romain.
[59] Finally, regarding the submission that the trial judge should have ordered the recall of witnesses instead of providing the instruction, I note that neither party requested an order recalling witnesses. What was before the court was the request by the Crown for the instruction and the position of the defence that the instruction was unnecessary. As this court observed in R. v. Paris (2000), , 138 O.A.C. 287 (C.A.), at para. 18, absent a request for the recall of a witness, a trial judge cannot be faulted for failing to recall a witness on their own initiative.
[60] In summary, I see no basis for appellate interference in the highly discretionary decision of the trial judge to provide a Browne v. Dunn instruction. Accordingly, I would dismiss this ground of appeal.
(4) Misstatement of Evidence
(a) Background Facts
[61] The appellant submits that the trial judge’s recitation of the evidence insufficiently and incorrectly summarized P.C. Au’s evidence and misstated Mr. Hudson’s evidence regarding the purported statement to P.C. Au during the initial investigation of the stabbing.
[62] P.C. Au responded to the scene and proceeded to collect surveillance video from the building superintendent, Mr. Elmy. They watched some of the surveillance footage and observed people standing in front of the basement. Mr. Elmy identified Mr. Brown, one of the basement studio tenants, as one of the people on the video.
[63] P.C. Au attended at the basement studio and spoke with Messrs. Brown, Kirinde and Hudson. P.C. Au asked the group what happened. He testified that “everyone was chiming in at the same time”, and that he had got “the gist of the story.” However, P.C. Au said that he did not “grab any individual statements” and could not say what each person told him.
[64] P.C. Au prepared a Supplementary Report that set out his recollection of his interaction with Messrs. Brown, Kirinde and Hudson. He noted that Mr. Hudson told him that the appellant went to confront a person on a bicycle across the street. Further, he recorded that Messrs. Brown, Kirinde and Hudson told him that they entered back into the basement when the appellant went to confront the man on the bicycle.
[65] P.C. Au agreed that, from what he remembered, Messrs. Brown, Kirinde and Hudson told him that the appellant had run off by himself and the three of them had returned to the studio and had not seen the appellant since. The conversation lasted several minutes, and he then asked all three men to go out front with him so he could arrange transportation to the station for each to give individual statements.
[66] P.C. Au’s report was put to Messrs. Brown, Kirinde and Hudson in cross-examination. None of the men recalled telling P.C. Au that the appellant had run off alone and they had together returned to the studio and not seen the appellant. They all denied that they had misled P.C. Au in an effort to protect Mr. Kirinde.
(b) Jury Instruction
[67] The trial judge explained to the jury in clear terms the theory of the defence’s position regarding the statements made to P.C. Au, including the following:
The defence submits to you that Mr. Hudson, Brown and Kirinde made an inconsistent statement to police officer Calvin Au right after the stabbing. He suggested to each of them that they told the officer that the three of them went back in the building after [the appellant] went to confront the man on the bike…and they hadn’t seen him since.
Mr. Kirinde, Brown and Hudson testified here that it was the accused and Mr. Kirinde who went down the road after the man on the bike and not that only Mr. Foreshaw went.
The defence suggests that the three men may have been trying to protect Mr. Kirinde by denying his involvement in the incident.
The evidence was that it was Mr. Hudson who spoke to Officer Au, who had not, by that point, seen the video with Mr. Foreshaw and Kirinde going down the road together after Mr. Romain. The three men were together in the living room of the studio when this statement by Mr. Francis [sic] was made to Officer Au. Officer Au took notes in a notebook at the time he spoke to Mr. Francis. He then generated a report which was put to Messrs. Hudson, Brown and Kirinde during their cross-examinations.
[68] The trial judge then outlined Messrs. Brown, Kirinde and Hudson’s testimony as to what they recalled communicating to P.C. Au. She also noted P.C. Au’s acknowledgment that he did not take individual statements from the men “and he had no independent recollection of what each of them told him. He got a general story.”
[69] The appellant’s makes three complaints about the trial judge’s recitation of the evidence surrounding P.C. Au’s interactions with Messrs. Brown, Kirinde and Hudson. First, he submits that the trial judge erred in not reminding the jury of P.C. Au’s testimony that he remembered being told the inconsistent statement and that this was not simply a question of the proper interpretation of his notes. Second, the trial judge said that there was no indication of when the men said that they went into the studio. However, in re-examination, P.C. Au stated, “When the guy went to go confront the male, that’s when they went back to the building.” Third, the appellant submits that the trial judge erred in stating that Mr. Hudson testified that he did not remember making those statements to P.C. Au. According to the appellant, Mr. Hudson adopted his preliminary hearing testimony wherein he testified that he, Mr. Kirinde and Mr. Brown did make those statements to P.C. Au.
[70] Before turning to these issues, I note that appellate courts are to take a functional approach in their review of jury instructions against the purposes for which they are given. Further, “[i]nstructions are not deficient to the point of appellate intervention simply because more could have been said, or because what was said could have been phrased differently or more felicitously”: R. v. Evans, 2019 ONCA 715, 147 O.R. (3d) 577, at para. 233. Further, it is the jury’s findings of fact that count, not the trial judge’s summary: R. v. Dirie, 2022 ONCA 767, at para. 92.
[71] On the first complaint, the jury was aware of the fact that P.C. Au’s testimony was that the appellant alone went to confront the man on the bicycle and the three men went back to the studio together. Further, they would have understood that the defence believed that P.C. Au’s report was inconsistent with the evidence of Messrs. Brown, Kirinde and Hudson and that is why the defence challenged them with that report in cross-examination.
[72] Regarding the second complaint, the evidence on this issue is far from clear. Just prior to the quote relied on by the appellate, P.C. Au was asked whether he asked the men what period they were talking about when they said they went back to the building, and he replied that he did not remember.
[73] I also do not agree that Mr. Hudson adopted his testimony from the preliminary hearing. As stated by this court in R. v. Medford, 2021 ONCA 27, at para. 23, “A witness only adopts a prior statement where the witness agrees, based upon present memory, that the statement is true. Only where that prior statement is adopted, does it become part of the witness’ evidence at trial, available to the trier of fact for the truth of its contents.”
[74] The evidence of Mr. Hudson at trial falls short of adoption. Throughout his cross-examination on the point, he expressed confusion regarding what exactly P.C. Au asked him, what precisely was said and who said what to P.C. Au. In my view, he never provided an unqualified adoption of his evidence from the preliminary hearing, which itself was also somewhat ambiguous. Therefore, I would reject this argument.
(5) Third Party Suspect
(a) Background Facts
[75] The appellant submits that the third party suspect instruction was unbalanced, failed to ensure that the jurors understood the evidence critical to the appellant’s defence and misstated key evidence.
[76] The relevant portions of the third party suspect instruction are reproduced below:
The defence pointed to the fact that, after the offence, when Mr. Kirinde was with Mike Causey on the sidewalk outside the studio and Mr. Romain was lying on the sidewalk across the street, Mr. Kirinde did not disclose to Mr. Causey, Ms. Lloyd or Mr. Hudson that Mr. Foreshaw had stabbed Mr. Romain. Mr. Miglin also points to the evidence of Officer Au which, he submits, shows that Mr. Kirinde was hiding the fact that he was at the scene of the crime with the accused. I have dealt with this evidence already. To summarize it, however, the defence submits that the evidence of Francis, Courtney and Achira's statements to Officer Au was an attempt to hide the fact that Mr. Kirinde went down the road with Mr. Foreshaw to Mr. Romain.
Mr. Kirinde remained at the scene, went outside to see what was happening to Mr. Romain and spoke to Officer Gallant at the scene and the police at the police station and told them he had gone with Mr. Foreshaw to confront Mr. Romain and that the accused had stabbed Mr. Romain. The defence maintains that he told Officer Au the opposite.
Mr. Kirinde testified at this trial that Mr. Foreshaw said, “I pushed it in” to him on the way back to the studio but remembered this after he spoke to the police initially and only told the officer in charge of the case, Dunkley, in early 2020. Mr. Kirinde also testified that he told Courtney Brown, once he got into the studio, that he “thought” the accused had “poked” the deceased. He agreed during his testimony that he did this about 20 minutes before the police arrived.
[77] The appellant argues that the same concerns raised in the previous section about the trial judge’s treatment of the evidence related to the interaction between Messrs. Brown, Kirinde and Hudson and P.C. Au apply to this ground of appeal. Further, he submits that the trial judge failed to place sufficient emphasis on this evidence and that she failed to remind the jurors that Mr. Kirinde said he told the police about the alleged confession many months after the stabbing.
(b) Application of Legal Principles
[78] Trial judges are obliged to review the substantial parts of the evidence and relate that evidence to the issues the jurors must decide. There is no formula to determine the adequacy of the evidentiary review and appellate courts do not demand a standard of perfection. What is essential is that a trial judge’s summary of the evidence and the charge as a whole be fair and balanced: R. v. Walker, 2019 ONCA 806, 58 C.R. (7th) 7, at para. 6. In my view the third party instruction – and the charge as a whole – met this standard.
[79] As I have discussed in the previous section of these reasons, I see no error in the trial judge’s review of the evidence of the interactions with P.C. Au or the emphasis she placed on this evidence. Further, her failure to specifically avert in this section to the timing of the disclosure of the confession to the police was of no moment as she had previously reviewed this evidence with the jury.
[80] There is a further specific error in the third party instruction that the appellant relies on for this ground of appeal. As set forth above, the trial judge instructed the jury that “Mr. Kirinde also testified that he told Courtney Brown, once he got into the studio, that he ‘thought’ the accused had ‘poked’ the deceased. He agreed during his testimony that he did this about 20 minutes before the police arrived.” It is common ground that the reference to 20 minutes was an error because it was Mr. Brown who testified to this timing. The appellant asserts this is a significant error because it means that Mr. Kirinde made this statement approximately one hour after the stabbing. However, Mr. Kirinde testified that he told the other men that the appellant stabbed Mr. Romain immediately on returning after the altercation. According to the appellant, the impact of this error was that it eliminated an important inconsistency between the testimony of Messrs. Brown and Kirinde.
[81] I am not persuaded by this ground of appeal because, in my view, the error was immaterial. Contrary to the submission of the appellant, there is not a clear inconsistency between the evidence of Messrs. Brown and Kirinde. Mr. Brown estimated that it was approximately 15 minutes between the time the police arrived and when he was told by Mr. Kirinde about the appellant being the perpetrator. However, Mr. Brown also estimated that approximately 20 minutes elapsed between when he returned to the studio and when the police arrived. Therefore, Mr. Brown’s estimation is not that Mr. Kirinde waited an hour to provide this information but that he told Mr. Brown within approximately five minutes of Mr. Brown arriving back at the studio.
(6) Alleged s. 10(b) Breach
(a) Background
[82] According to D.C. Smith, when the appellant was arrested, he told him what he was under arrest for and advised, “You have the right to speak to a lawyer or there is a 1-800 number, which I do not have present with me.” Approximately forty minutes later, D.C. Smith read the appellant his rights from the memo book of another officer.
[83] After the appellant was turned over to P.C. McVey, the officer repeated his rights to counsel once the appellant was seated in the car. This was recorded on the in-car camera. On that videotape recording, the appellant indicated that he understood his rights to counsel and told P.C. McVey that he wanted to speak to his mother to see if she had the name of a lawyer he could speak to. The appellant again confirmed before the booking sergeant that the officers told him his right to counsel and that he understood his rights.
[84] At the police station, the appellant spoke to his mother and duty counsel. He finished his call with duty counsel and P.C. McVey returned to the interview room. He was then moved to another interview room to speak to D.S. Gallant. The appellant was again read his rights and D.S. Gallant confirmed that he had spoken to his mother and duty counsel and that he understood his rights. During the interview with D.S. Gallant, the appellant was shown a picture of Mr. Brown. He denied knowing the person in the photograph even though he had known Mr. Brown for many years. The Crown relied on this failure to identify Mr. Brown to attack the appellant’s credibility.
(b) Charter Application
[85] The Crown sought to admit the appellant’s statement to D.S. Gallant. The appellant took the position that the statement was obtained in violation of his s. 10(b) Charter rights, and that it should be excluded from evidence pursuant to s. 24(2).
[86] The trial judge held that there was no breach of the appellant’s s. 10(b) rights, finding that he was informed of his rights several times. On the issue of D.C. Smith’s provision of the appellant’s rights at the time of his arrest, she found:
Detective Constable Smith's communication of the right to counsel, in the context of all of the evidence, did not create a ground for a breach of Mr. Foreshaw's Charter rights. His not having his memo book or not reciting verbatim the words contained therein to communicate the right to counsel is not the same as not giving Mr. Foreshaw his rights to counsel. (R. v. Ghotra, 2020 ONCA 373 at paragraph 35).
Mr. Foreshaw was told upon arrest that he was charged with second degree murder, asked if he understood, and was told that he had a right to call a lawyer. His response was that he didn't do anything and wanted to call his mother. His response is support for the fact that he understood the charge and that he understood he had the right to speak to counsel. Later evidence showed that the accused wanted to call his mother to get the name of a lawyer he could speak to.
The right to counsel in this case was given several times. The Crown submits they were given four-and-one-half times, and I do not disagree. The first time by D.C. Smith was abbreviated. In the context of all the circumstances, it was appropriate and created no basis for a Charter breach. The right to counsel need not be read verbatim.
[87] The trial judge held that the appellant understood what D.C. Smith told him about his rights and that, “He never conveyed dissatisfaction about the advice he got from duty counsel or confusion about his right to counsel (Ghotra, supra, at paragraphs 39 and 40).”
[88] Further, the trial judge found that the appellant did not request to consult with counsel during the videotaped statement. She held that his references about wanting to speak to a lawyer were future oriented and were not made because he did not understand his rights or because the officers had undermined any information he had about his rights.
[89] Finally, the trial judge noted that throughout his interview with the police the appellant refused to speak about the substance of the allegations made against him. This fact confirmed her finding that he understood his right to counsel and his right to silence. She dismissed the appellant’s Charter application.
(c) Arguments on Appeal
[90] The appellant advances four primary submissions regarding his s. 10(b) rights: (i) the information provided by D.C. Smith did not adequately convey how or when he could exercise his right to counsel, (ii) the trial judge erred in relying on R. v. Ghotra, 2020 ONCA 373, (iii) the trial judge erred in relying on the fresh start doctrine, and (iv) the trial judge erred in finding that he did not request to re-consult with counsel.
[91] Section 10(b) provides a detained person with the right “to retain and instruct counsel without delay and to be informed of that right”. Miller J.A., citing R. v. Bartle, , [1994] 3 S.C.R. 173, described the requirements of this right in Ghotra at para. 33, as follows:
…this right imposes the following requirements: (1) informational: to advise the detainee of the right to retain and instruct a lawyer without delay, and of the existence and availability of legal aid and duty counsel; (2) implementational: where the detainee indicates a desire to exercise the right, to provide a reasonable opportunity; and (3) forbearance: to refrain from eliciting evidence from the detainee until the detainee has had a reasonable opportunity to exercise the right.
[92] The purpose of s.10(b) was described by the Supreme Court in R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 28: “s.10(b) provides detainees with an opportunity to contact counsel in circumstances where they are deprived of liberty and in the control of the state, and thus vulnerable to the exercise of its power and in a position of legal jeopardy. The purpose of s. 10(b) is to provide detainees an opportunity to mitigate this legal disadvantage.”
[93] Regarding the information provided by D.C. Smith, the appellant argues that the officer did not provide the actual toll free number, did not convey that he had a right to speak to a lawyer without delay and did not indicate when he could speak to a lawyer. His position is that these were substantial defects in the informational component of s.10(b) and the trial judge erred in finding otherwise.
[94] I am not persuaded by this submission. D.C. Smith testified that he told the appellant that he would have a right to speak to counsel “as soon as possible or practical”. He also conveyed that there was a toll free number he could call to speak with a lawyer. The trial judge found that this sufficiently conveyed the essential information to the appellant. In support of this finding, she relied on the fact that the appellant immediately began asking to speak to his mother so that he could get a lawyer.
[95] The onus was on the appellant to establish that he misunderstood his rights such that s. 10(b) was infringed. Similar to the situation in Ghotra, the appellant did not testify on the voir dire and the trial judge found that at no point did he convey confusion about his right to counsel.
[96] As noted, D.C. Smith informed him that he had a right to retain counsel as soon as possible or practical and that there was a toll free number to call for legal advice if he did not have a lawyer. The fact that the specific telephone number was not provided cannot form the basis for the claim that the informational component of his s. 10(b) rights was not complied with by D.C. Smith. It cannot be seriously suggested that the appellant was in a position to make note of the actual phone number or that he believed that he would not be provided with the actual number if he chose to avail himself of that option.
[97] Regarding the trial judge’s reliance on Ghotra, the appellant submits that the situation in that case is distinguishable from the facts of his case. In Ghotra, the accused was too upset to understand the nature of his rights and, after being given abbreviated rights to counsel, his complete rights were provided within minutes. I do not read the trial judge’s ruling as suggesting that the circumstances of the arrest in the present case were analogous to the circumstances in Ghotra. Rather, the trial judge recognized that a determination of whether the informational component of s. 10(b) has been met is not made in a factual vacuum. She properly considered the circumstances of this case, including the facts surrounding the arrest, the specific information provided and the appellant’s actions after being provided information.
[98] The appellant further submits that the trial judge implicitly relied on the “fresh start” doctrine. I disagree. That doctrine does not apply because the trial judge never found a breach of s. 10(b) in the police interaction with the appellant. Further, there is nothing in the trial judge’s ruling to suggest that she relied on this doctrine.
[99] Finally, the appellant submits that the trial judge erred in finding that the police were under no obligation to provide him with a second opportunity to speak with counsel. The rule is that “unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview”: Willier, at para. 42. The trial judge found that there was no indication that the appellant was confused about his rights or that he was not satisfied with the legal advice he had been given. Her finding that the appellant understood his rights and chose not to talk about the offence was well supported by the record and there is no basis for appellant interference.
[100] The appellant also argues that the trial judge erred in finding that his requests for counsel during the interview were all future orientated. He notes that even D.S. Gallant interpreted some of those requests as reflecting a desire to speak to counsel immediately. However, the trial judge was not bound by D.S. Gallant’s interpretation. Instead, it was open to trial judge, on her review of the interview recording, to find that the requests were all future orientated.
[101] Further, and in any event, even if a request had been made for a second consultation with counsel, the request itself is insufficient to re-trigger the appellant’s s. 10(b) rights. As found by the Supreme Court in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 65, more is required:
We conclude that the principles and case-law do not support the view that a request, without more, is sufficient to retrigger the s. 10(b) right to counsel and to be advised thereof. What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not.
There was no change of circumstances during the interview of the appellant conducted by D.S. Gallant.
[102] For the foregoing reasons, I conclude that there was no breach of the appellant’s s. 10(b) rights.
[103] In the alternative, if there was a breach of s. 10(b), it is necessary to conduct a s. 24(2) analysis to determine whether the appellant’s statement should be excluded from the evidence. I note that the appellant has failed to include any submissions in his factum regarding s. 24(2). It is worth reiterating that section 24(2) excludes evidence only in circumstances where its admission would bring the administration of justice into disrepute. The framework from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, must be rigorously applied because a finding of a breach of a Charter right standing alone is an inchoate remedy: R. v. Sureskumar, 2023 ONCA 705, at para. 20.
[104] Regarding the first Grant factor – the seriousness of the Charter-infringing state conduct – any breach was minor in nature. The accused was provided his rights to counsel at least four times and he spoke to duty counsel before being interviewed. If there was a breach in D.C. Smith’s initial interaction with the appellant, it was not the result of deliberate or systemic misconduct. Instead, it resulted from a situation where the officer did not happen to have his memo book with him at the time of the arrest. This factor militates in favour of inclusion of the evidence.
[105] The impact on the appellant’s rights – the second Grant factor – was also minimal. There is no causal connection between the initial provision of the appellant’s rights and the statement because, before he was interviewed, the appellant was advised of his rights three more times and consulted with duty counsel. The absence of a causal connection mitigated the impact on the appellant’s Charter-protected interests: R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 125. Consequently, this factor also militates in favour of inclusion of the evidence.
[106] The third Grant factor asks the court to consider society’s interest in an adjudication of a criminal allegation on the merits. The analysis focuses on whether the truth-seeking function of the criminal trial process is better served by admission or exclusion of the impugned evidence, recognizing that those who transgress the law have a right to be prosecuted according to the law: Grant, at para. 79.
[107] The appellant’s statement was an important piece of evidence. While it was not determinative of the appellant’s guilt or innocence, it provided insight into his veracity when dealing with the police. Thus, this factor also supports the admission of the evidence.
[108] In balancing the three lines of inquiry, all three favour the admission of the evidence. Therefore, I would not exclude the statement from the evidence.
C. Disposition
[109] For the foregoing reasons, I would dismiss the appeal.
Released: March 11, 2024 “P.S.R.” “C.W. Hourigan J.A.” “I agree. Paul Rouleau J.A.” “I agree. P.J. Monahan J.A.”
