WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15, c. 43, s. 8; 2010, c. 3, s. 5; 2012, c. 1, s. 29.

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Batisse, 2015 ONCA 322

DATE: 20150507

DOCKET: C58480

Simmons, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

William Batisse

Respondent

Lisa Joyal, for the appellant

David Bennett, for the respondent

Heard: April 8, 2015

On appeal from the acquittals entered by Justice James A. S. Wilcox of the Superior Court of Justice on February 10, 2014.

By the Court:

[1] The Crown appeals from the respondent's acquittals for several sexual offences alleged to have been committed against the respondent’s niece between 1989 and 1994.

[2] At the conclusion of the oral appeal hearing, we ordered that the Crown appeal be allowed, that the acquittals be set aside, and that a new trial, including a new voir dire, be held. These are our reasons for that order.

Introduction

[3] In pre-trial rulings, the trial judge found that an inculpatory statement made by the respondent to the police was inadmissible as evidence at trial. The trial judge concluded that, in taking the statement, the police breached the respondent’s ss. 10(a) and 10(b) Charter rights and his s. 7 Charter right to silence. Relying on his s. 7 Charter ruling, the trial judge also found the statement involuntary. Because the statement was involuntary, it was unnecessary for the trial judge to conduct a s. 24(2) Charter analysis.

[4] Both the complainant and the respondent testified at trial. Although the trial judge said he had no reason to doubt the complainant’s evidence, the respondent’s evidence left him with a reasonable doubt. He accordingly acquitted the respondent on all charges.

[5] On appeal, the Crown challenges a preliminary evidentiary ruling made by the trial judge on the pre-trial motions, as well as the trial judge’s ss. 7, and 10(b) Charter rulings and his finding that the respondent’s statement to the police was involuntary. For reasons that we will explain, we accept the Crown’s submission that the trial judge erred in law in his preliminary evidentiary ruling and in his ruling concerning the admissibility of the respondent’s inculpatory statement.

The trial judge’s preliminary evidentiary ruling

[6] The respondent initially pleaded guilty to one of the charges but then applied successfully to have his guilty plea struck. During pre-trial motions at his ensuing trial, the respondent asked that a pre-sentence report prepared following his guilty plea be admitted to prove the truth of the contents of certain statements and documents referred to in the pre-sentence report concerning his developmental deficits.

[7] The statements and documents in the pre-sentence report on which the respondent sought to rely included a statement by the respondent’s mother that the respondent was assessed and labelled as “mentally retarded” during his school years. They also included documents located in an historical file indicating the following: testing revealed that the respondent’s intellectual functioning was in the borderline normal range; doctors with whom the respondent had had consultations referred to him as “a retarded boy”; and other reports referred to the respondent’s developmental delay.

[8] The trial judge ruled the pre-sentence report admissible to prove the truth of the content of these statements and documents on three bases:

i) the common law public documents exception;

ii) the principled approach to the hearsay rule (which the trial judge referred to as the Khan exception); and

iii) the trial judge’s residual discretion to prevent unfairness to the accused that would result in a miscarriage of justice.

[9] We accept the Crown’s submission that the trial judge erred in law in admitting the pre-sentence report to prove the truth of the contents of the above noted statements and documents.

[10] In admitting the pre-sentence report based on the common law public documents exception and the Khan exception, the trial judge relied in part on his understanding that the Crown had conceded the reliability of the various statements and reports. On appeal, it is not disputed that no such concession was made. The trial judge did not conduct his own reliability analysis. His failure to do so is an error in law that negates the first two bases for his admissibility ruling.

[11] In any event, we also conclude that the trial judge’s reliance on the common law public documents exception to the hearsay rule is misplaced. A pre-sentence report is prepared on the basis that it is relevant to issues surrounding sentencing following a finding of guilt, and it is not subject to the same evidentiary strictures as are in place at trial. Witness statements and medical reports recorded or referred to in a pre-sentence report are not rendered admissible for the truth of their contents at trial by virtue of their inclusion in that report.

[12] This is especially the case where double hearsay is at issue. The trial judge’s reliance on the public documents exception to ground the admissibility of the respondent’s mother’s hearsay statements about the respondent’s intellectual abilities and related documents is an error in law.

[13] Finally, the trial judge’s conclusion that the admission of this evidence was necessary lacked any evidentiary foundation and was also an error in law. Because the respondent failed to demonstrate any basis for concluding that the admission of the evidence was necessary, the trial judge erred in principle in relying on his residual discretion to admit the evidence.

The trial judge’ ruling concerning the admissibility of the respondent’s statement

[14] We also accept the Crown’s submission that the trial judge erred in law in his s. 7 Charter analysis concerning whether the police breached the respondent’s right to silence based on persistent questioning by the police during the course of a videotaped statement in which the respondent acknowledged two of the alleged sexual acts.

[15] The respondent attended the police station and gave the videotaped statement in response to a request from an officer who told the respondent he was investigating a sexual assault allegation in which the respondent was a possible suspect. At the outset of the interview, the officer cautioned the respondent to disregard any threats or promises made by other officers to induce him to speak and told him, “It’s up to you if you want to talk, okay?” The officer also informed the respondent that he had a right to contact a lawyer and facilitated contact with duty counsel through the 1-800 number at the respondent’s request.

[16] During the course of police questioning, the appellant made a variety of statements concerning his willingness to speak. For example:

• when asked if he was curious about the allegations, he said “no” but also indicated he would not mind talking about it “another day”;

• after discussing some recollections about interactions with the complainant and being encouraged by the officer to move forward and deal with it now, he indicated he wanted to talk about what happened, but not right now;

• after being told by the officer that speaking would help him move past his mistakes and grow as a person, he indicated it had been “eating [him] up inside”, and he “wanted to talk about it.”

[17] The substance of the trial judge’s s. 7 Charter analysis is contained at paras. 46 and 47 of his ruling on the voir dire:

The right to silence arises at the investigative stage. The police are not necessarily required to refrain from questioning a detainee who states that he does not wish to talk. However, “under both common law and Charter rules, police persistence in continuing an interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that the subsequently obtained statement was not the product of a free will to speak to authorities”, and it is not voluntary. “The mere presence of a doubt as to the exercise of the detainee’s free will in making a statement will suffice to ground a remedy.” [Citations omitted.]

In the circumstances of this case, I find that the accused was effectively denied his right to silence in breach of s. 7 of the Charter.

[18] For persistent police questioning to constitute a breach of a detainee’s right to silence, it must have the consequence of depriving the detainee of the right to choose whether or not to speak to the police. This is made clear in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405. In Singh, at para. 46, the Supreme Court articulated this requirement in a quotation from R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151:

…there is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter. Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence. [Emphasis added].

Further, at para. 53 of Singh, the Court stated: “The ultimate question is whether the accused exercised free will by choosing to make a statement.”

[19] In our view, the trial judge erred in law by failing to accurately set out and apply the test for assessing whether persistent police questioning will result in a breach of a detainee’s s. 7 Charter rights. The trial judge accurately noted that Singh states at para. 47: “[P]olice persistence in continuing an interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the product of a free will”. However, as noted above, in both Singh and Hebert, the Supreme Court also emphasized that police are entitled to use legitimate means of persuasion and that police persuasion, short of depriving a detainee of the ability to choose whether to speak, does not breach the right to silence.

[20] In his reasons, the trial judge did not engage in any analysis of whether the respondent’s statements during the interview amounted to “repeated assertions … that he wishe[d] to remain silent.” In our view, by referring to the statement at para. 47 of Singh without also referring to the additional statements in both Singh and Hebert concerning police use of legitimate means of persuasion, the trial judge failed to advert to and apply the proper test concerning whether the respondent’s s. 7 Charter rights had been breached.

[21] As the trial judge’s s. 7 ruling formed the basis of his finding that the respondent’s statement was involuntary, the error in his s. 7 analysis taints his conclusion on involuntariness.

[22] The respondent concedes that the trial judge erred in finding a s. 10(b) Charter breach. He also acknowledges that the s. 10(a) Charter breach found by the trial judge would not warrant the exclusion of the appellant’s statement to the police under s. 24(2) of the Charter. We agree with these concessions.

[23] We are satisfied that absent the trial judge’s legal errors, the result in this matter would not necessarily have been the same.

[24] In the result, we allow the Crown appeals, set aside the respondent’s acquittals, and order a new trial, including a new voir dire.

Released:

“MT” “Janet Simmons J.A.”

“MAY -7 2015” “M. Tulloch J.A.”

“Grant Huscroft J.A.”