Court Information
Court of Appeal for Ontario
Date: March 3, 2017
Docket: C58758 & C58976
Judges: Watt, Epstein and van Rensburg JJ.A.
Parties
Between
Her Majesty the Queen Respondent
and
Scott McManus and Megan Chapman Appellants
Counsel
Richard Posner, for the appellant Scott McManus
Gabriel Gross-Stein, for the appellant Megan Chapman
Brian G. Puddington, for the respondent
Hearing and Trial Information
Heard: June 30, 2016
On appeal from: the convictions entered by Justice Alan Bryant of the Superior Court of Justice, sitting with a jury, on February 28, 2014.
Decision
van Rensburg J.A.:
A. Introduction
[1] Following a jury trial, the appellants were convicted of possession of cocaine and marijuana for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19. McManus was sentenced to six years in jail. Chapman was sentenced to a reformatory term of 12 months.
[2] The appellants appeal their convictions on four grounds. The first concerns the dismissal of a pre-trial application under s. 24(1) of the Charter of Rights and Freedoms to stay the proceedings for breach of the appellants' rights to be tried within a reasonable time under s. 11(b). The other three grounds raise issues concerning alleged errors of law by the trial judge: first, in admitting expert opinion evidence by a police witness who was an investigating officer; second, in the trial judge's ruling on a Corbett application that would have permitted the cross-examination of McManus on a previous drug trafficking conviction had he testified at trial; and third, respecting alleged unfairness in the trial judge's charge to the jury regarding the defence witness, Jeff Averill, who testified that the drugs were his.
[3] For the reasons that follow, I would allow the appeal, set aside the appellants' convictions and direct a new trial.
B. Background Facts
[4] The appellants were investigated for drug offences. Surveillance established their connection to an apartment building on Waterloo Street in London, Ontario. Search warrants for a specific apartment and for Chapman's vehicle were obtained and executed on February 4, 2010. The appellants were located in the vehicle, where trace amounts of cocaine were found. A search of the apartment and vehicle revealed some cash, 456 grams of marijuana, and 487 grams of cocaine, as well as various documents in the names of either McManus or Chapman, including Chapman's passport, birth certificate, and documents relating to her vehicle. Many of the documents showed other addresses for the appellants. Police also found a "debt book" and a book titled The Cocaine Handbook: An Essential Reference. The appellants were arrested and charged with possession of cocaine and marijuana for the purpose of trafficking.
[5] The appellants' trial in the Superior Court took place approximately four years after their arrest. The appellants brought a s. 11(b) application which was determined and dismissed under the then applicable Morin framework.
[6] At trial, the Crown relied on the drugs and other items seized during the execution of the search warrants. The Crown also relied on a number of text messages between the appellants that were retrieved from their cell phones. Over the objection of defence counsel and after a voir dire, one of the investigating officers, D.C. Bullick, was permitted to give expert evidence that certain words and phrases used in the text messages were indicative of trafficking.
[7] McManus brought a Corbett application, which the trial judge dismissed. The trial judge determined that the Crown was entitled to cross-examine McManus on two offences from his criminal record were he to testify, including a conviction for possession for the purpose of trafficking cocaine.
[8] Neither appellant testified at trial. There was one witness for the defence, Jeff Averill, who had a lengthy criminal record, and who testified that he used the apartment where the drugs were found as a "safe house". He claimed he was the person who had stashed the drugs that were discovered during the search of the apartment. In his charge to the jury, the trial judge summarized Averill's evidence and made several comments critical of his reliability and credibility.
C. Issues
[9] The appeal raises the following issues:
Are the appellants entitled to a stay of proceedings for breach of their right to a trial within a reasonable time under s. 11(b) of the Charter?
Did the trial judge err in qualifying D.C. Bullick as an expert witness and admitting his opinion?
Was the trial judge's ruling on McManus's Corbett application unreasonable? As a result, were either or both of the appellants denied a fair trial?
Was the trial judge's charge to the jury about the defence witness unfair?
(1) Issue 1: Are the Appellants Entitled to a Stay of Proceedings for Breach of their s. 11(b) Charter Rights?
(a) Decision of the Application Judge
[10] The appellants were charged on February 4, 2010. Their trial concluded on February 28, 2014. While the entire period is relevant to the delay analysis, at the time they brought their s. 11(b) application the appellants were concerned only about the delay in the Ontario Court of Justice ("OCJ").
[11] The stay application was determined in advance of the trial by Gorman J. She described the case as a "bread and butter" urban drug investigation. The application judge was provided with a detailed chronology and explanation for the various adjournments, as well as a transcript for each appearance. She noted that the total delay from arrest to the trial date in February 2014 was 1,466 days, which included 1,285 days in the OCJ.
[12] There were four significant delay periods: the first was the seven months after the appellants' arrest, while the Crown unsealed and vetted the Information to Obtain ("ITO") to redact information that might identify a confidential informer ("CI"). The second was a period of six months before the first preliminary inquiry date was set. The third delay period of about nine months occurred when the preliminary inquiry was adjourned at the request of the defence. The fourth was an adjournment of the preliminary inquiry at the Crown's request, resulting in a further delay of approximately nine months.
[13] The following is a chronology of events in the OCJ and, in bold, the application judge's calculation and attribution of the reasons for delay under the Morin framework:
February 4, 2010 – October 29, 2010 (arrest date to first date after Crown vetting of search warrant and disclosure): 90 days inherent delay; 177 days Crown delay.
October 29, 2010 – November 5, 2010 (defence requests one week adjournment to set date for preliminary inquiry): 7 days defence delay.
November 5, 2010 – May 11, 2011 (first scheduled "one day" preliminary inquiry date): 6 months, 6 days institutional delay.
May 11, 2011 – January 18, 2012 (defence requests adjournment of preliminary inquiry due to a conflict of interest concern in representing both accused): 8 months, 7 days defence delay.
January 18, 2012 – January 27, 2012 (Chapman serves late Dawson application to cross-examine deponent of ITO and defence counsel identifies possible CI privilege issue in vetted ITO. Crown requests adjournment of preliminary inquiry): 9 days Crown delay.
January 27, 2012 – October 17, 2012 (preliminary inquiry adjourned): 5 months Crown delay; 4 months, 21 days defence delay. (The Crown properly concedes that the application judge added an extra month here as the total delay period is eight months, 21 days, and suggests that the proper period attributable to defence delay is therefore three months, 21 days.)
October 17, 2012 – January 25, 2013 (preliminary inquiry begins and is adjourned): 3 months, 9 days institutional delay. (The preliminary inquiry was in fact adjourned on October 19, despite having started on October 17.)
January 25, 2013 – April 30, 2013 (defence-initiated adjournment of preliminary inquiry, then preliminary inquiry continues for one day and is adjourned): 3 months, 5 days defence delay. (The preliminary inquiry in fact continued on February 13, 2013, not April 30, 2013. The Crown concedes that only 19 days should be attributed to the defence for this period.)
April 30, 2013 – June 21, 2013 (preliminary inquiry adjourned for argument): 51 days institutional delay.
[14] The first appearance in the Superior Court was July 9, 2013. Counsel for McManus expressed concern about delay. On August 13, 2013, the s. 11(b) application was scheduled for November 14, 2013 and a five-day jury trial was set for February 10, 2014. Both were the first available dates offered by the court. At the s. 11(b) application hearing, defence counsel specifically took no issue with the time in the Superior Court.
[15] The application judge attributed only 90 days to inherent delay, although she essentially treated the time in the Superior Court as neutral in her s. 11(b) analysis. She calculated total institutional delay of 11 months, six days and Crown delay of ten months. She found defence delay of 19 months, ten days. She concluded that the overall delay was not unacceptable, and noted that the transcripts disclosed at the very least acquiescence by McManus in regard to his court appearances. She commented that, while the Crown-caused delay was concerning, it was not egregious. The Crown was prepared to proceed on the first preliminary inquiry date, which was adjourned at the request of the defence. The application judge noted there was no evidence of actual prejudice and, in light of her attribution of delay and the facts, she was not prepared to infer prejudice. She stated that a stay of proceedings must only be granted in the clearest of cases, and that this was not such a case. She was not persuaded, in all of the circumstances, that the delay was unreasonable.
(b) Positions of the Parties Pre-Jordan
[16] When the appellants initially appealed the dismissal of the s. 11(b) application, they alleged errors in the application judge's articulation of the proper test for granting a stay, her attribution of responsibility for certain periods of delay to the defence, and her refusal to infer prejudice.
[17] With respect to delay, the appellants submitted that delay of no more than nine months should be attributed to the defence. In addition to the calculation errors that were conceded by the Crown, the application judge erred in allocating to the defence any part of the nine month delay from January 18, 2012 to October 17, 2012. They argued that this delay resulted from the adjournment of the preliminary inquiry at the Crown's request, where the reason was concern about CI privilege, not to respond to the late Dawson application. The appellants asserted that attributing all of this time to the Crown would result in total Crown (14.5 months) and institutional (11 months) delay in the OCJ of over 25 months, which is manifestly unreasonable. The appellants also contended that, while the delay in the Superior Court was not relied on, given the entire period of delay as well as periods McManus spent in custody, prejudice ought to have been inferred.
[18] While the Crown agreed that the application judge erred in describing the test, the Crown argued that the application judge nevertheless correctly identified and applied the Morin factors and framework. The Crown acknowledged certain calculation errors by the application judge with the result that, accepting her characterization of responsibility for the delays, she ought to have found defence delay of 15 months, ten days and Crown delay of 11 months. The Crown disagreed that there was any other error in the attribution of delay, in particular asserting that the application judge was correct to split responsibility for the delay resulting from the second adjournment of the preliminary inquiry between the Crown and the defence.
[19] Finally, the Crown asserted that there was no basis to infer prejudice where institutional delay only marginally exceeded the Morin guidelines and the appellants were content with the pace of the proceedings. As for McManus's incarceration, this was largely in relation to other charges and in any event this was not relied on as prejudice before the application judge.
(c) The Jordan Framework
[20] Following argument of the appeal, the Supreme Court released its decision in R. v. Jordan, 2016 SCC 27, setting out a new framework for determining s. 11(b) applications.
[21] The Supreme Court set a presumptive ceiling of 30 months of delay for cases proceeding to trial in the Superior Court, beyond which the delay is presumptively unreasonable: Jordan, at paras. 5, 46. The Crown may rebut this presumption by establishing exceptional circumstances: Jordan, at para. 68.
[22] The first step is to calculate the total delay from the charge to the actual or anticipated end of trial, subtracting any defence delay to arrive at the "net delay": Jordan, at para. 47; R. v. Coulter, 2016 ONCA 704, at para. 35. If the net delay exceeds the ceiling, unless the Crown can establish exceptional circumstances the delay is unreasonable and a stay of proceedings must follow: Jordan, at para. 47.
[23] "Exceptional circumstances" are circumstances outside the Crown's control in the sense that (i) they are "reasonably unforeseen or reasonably unavoidable" and (ii) the Crown cannot reasonably remedy the delay emanating from those circumstances once they arise: Jordan, at para. 69. The circumstances need not be rare or entirely uncommon and will "depend on the trial judge's good sense and experience." The list of exceptional circumstances is not closed but, in general, they fall under two categories: discrete events and particularly complex cases: Jordan, at paras. 69, 71. Discrete events are deducted from the net delay to arrive at the "remaining delay", for the purpose of determining whether the ceiling has been exceeded: Jordan, at para. 75; Coulter, at paras. 38, 56. Where the Crown can demonstrate that a case was particularly complex, the delay may be justified and no stay will issue: Jordan, at para. 80.
[24] Where the remaining delay exceeds the presumptive ceiling and the charges were brought prior to the release of the Jordan decision, a transitional exceptional circumstance will apply where the Crown satisfies the court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed: Jordan, at para. 96. This requires a contextual and flexible assessment which is sensitive to the manner in which the previous framework was applied and recognizes that parties cannot be judged strictly against a standard of which they had no notice. The release of the Jordan decision "should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one": Jordan, at paras. 96, 102.
(d) Positions of the Parties Post-Jordan
[25] While this decision was under reserve and following the release of Jordan, the panel invited and received written submissions from counsel on the application of the Jordan framework to this ground of appeal.
[26] The parties agree that the period that is relevant to the s. 11(b) analysis is the entire period from when the appellants were charged with the offences until disposition of the charges. That period is 48 months, 24 days, and well exceeds the presumptive threshold of 30 months for a matter tried in the Superior Court.
[27] The appellants assert that they were responsible for only nine months of delay, consisting of eight months, one week (May 11, 2011 – January 18, 2012) when the first preliminary inquiry date was adjourned at defence counsel's request because of a potential conflict of interest; and an adjournment of approximately three weeks during the preliminary inquiry (January 25, 2013 – February 13, 2013) when McManus's counsel mistakenly sent a letter to the Crown indicating he would not be available, which resulted in witnesses being called off. After deducting defence delay, the remaining period is just under 40 months. The appellants allege that a substantial part of the overall delay was caused by the late vetting and disclosure of the search warrant. They also note that some delay resulted because both defence and Crown counsel underestimated the time required for the preliminary inquiry.
[28] The appellants submit that there are no "discrete events" that would qualify as exceptional circumstances, and that the case was straightforward and not complex. Further, they submit that there is no transitional exceptional circumstance where the Crown might demonstrate its reliance on the Morin principles to make decisions it would not have made under the new regime. In the absence of a transitional exceptional circumstance, the delay exceeded the presumptive ceiling by almost ten months, and was therefore unreasonable.
[29] The Crown submits that there were 13 months of defence delay, leaving a net delay of approximately 36 months. In addition to the nine months of defence delay acknowledged by the appellants, there was also a defence-requested adjournment of one week between October 29, 2010 and November 5, 2010. The Crown also contends that the defence was responsible for three months and 21 days of the nine month delay following the Crown request for an adjournment of the preliminary inquiry (January 18, 2012 to October 17, 2012).
[30] The Crown also asserts there were exceptional circumstances. If this court does not agree the defence was responsible for any of the delay between January 18, 2012 and October 17, 2012 in relation to the second and third preliminary inquiry dates, that period should be characterized as a discrete event that was outside the Crown's control and not reasonably foreseen.
[31] Finally, the Crown relies on transitional exceptional circumstances. The few days that the remaining delay exceeds the 30 month threshold after deducting defence delay and delay due to exceptional circumstances is not unreasonable. The Crown submits that the Supreme Court in Jordan was clear that the new framework should not automatically transform what would previously have been considered reasonable delay into unreasonable delay. When the significant delay the defence caused in the Provincial Court and the expeditious proceedings in the Superior Court are viewed together, the total delay was not unreasonable. Further, the lightning-fast trial dates in the Superior Court demonstrated attention to the importance of timely proceedings, with a six month wait to trial that was below the Morin threshold and which rendered the overall delay reasonable in the circumstances.
(e) Analysis Using the Jordan Framework
(i) Defence Delay
[32] Defence delay consists of delay that is caused or waived by the defence. Defence-caused delay includes both conduct that directly causes delay and conduct that is deliberate and calculated to delay the trial. In addition, when the Crown and court are ready to proceed but the defence is not, such delay may be attributed to the defence: Jordan, at paras. 61-64. Only the latter type of defence delay is engaged in this case, as there is no question of the defence's taking any steps to deliberately delay the proceedings. And, there is no question of waiver. While there was evidence of defence acquiescence when dates were set in the OCJ, this is a contextual factor that will be addressed in the discussion of transitional exceptional circumstances and final assessment of the reasonableness of the delay.
[33] I would attribute the following periods of delay, which are not really in dispute, to the defence: (i) the one week delay between October 29, 2010 and November 5, 2010, when defence counsel requested an adjournment to set the original date for the preliminary inquiry; (ii) eight months, one week between May 11, 2011 and January 18, 2012 for the defence-requested adjournment of the preliminary inquiry due to a conflict of interest in representing both accused; and (iii) 19 days between January 25, 2013 and February 13, 2013 when a continuation of the preliminary inquiry was adjourned after McManus's counsel sent a letter to the Crown mistakenly indicating he was unavailable to continue the preliminary inquiry. These periods total nine months, three days.
[34] The disputed period is between January 18, 2012 and October 17, 2012, a delay of approximately nine months, which the application judge allocated partly to the Crown and partly to the defence. It is appropriate to outline in some detail what happened during the court attendance leading to the adjournment.
[35] The preliminary inquiry had been adjourned to take place for one day on January 18, 2012. Fifteen minutes before the matter was to proceed, defence counsel alerted the Crown to a potential problem in the vetted ITO (which had been in the defence possession since mid-September 2010). The transcript of the attendance reveals that the Crown provided somewhat vague information about "an issue raised by defence counsel", and suggested that an adjournment would be "in the interests of everybody involved". The presiding judge was hesitant to accede to the request, and expressed concern that an adjournment was not beneficial to the administration of justice. Both Crown and defence counsel then offered more details, explaining that it was a sensitive issue related to the vetting of the search warrant, and counsel for McManus noted that he understood why Crown counsel was making the request. Counsel for Chapman said that she took the "same position", and that she understood the "predicament" and had no issue with the Crown's request for an adjournment.
[36] In the course of submissions on the requested adjournment, Crown counsel also advised that, two days earlier, Chapman's counsel had filed a Dawson application to cross-examine the affiant of the ITO. This was not, however, mentioned as a reason for the adjournment request, and there are indications in the transcript that the deponent was available and was to testify at the preliminary inquiry in any event. Indeed, Crown counsel said that the adjournment "is clearly on me". The adjournment was granted.
[37] A new date for the preliminary inquiry was set a week later, to take place on October 17, 2012. The total delay arising from this adjournment of the preliminary inquiry was eight months, 28 days. The application judge attributed five months, seven days to the Crown and four months, 21 days to the defence because of the late Dawson application (in fact, there was a calculation error and the delay after deducting Crown delay was only three months, 21 days).
[38] With respect to this period, I agree with the appellants that the application judge erred in attributing any part of the delay to the defence. The late Dawson application by Chapman does not appear to have contributed to the delay. I also reject the Crown's submission that the defence was partly responsible because defence counsel had the vetted ITO for over a year before raising a concern. The Crown also had the ITO and could have identified the potential problem. While it turned out that the concern was unfounded, at the time the issue was raised all counsel believed an adjournment was required to protect CI privilege, and the defence copies of the vetted ITO were returned to the Crown for further review.
[39] The net delay, after deducting defence delay of nine months, three days, is therefore 39 months, 21 days. Since this exceeds the threshold of 30 months, the next issue is whether there were exceptional circumstances.
(ii) Exceptional Circumstances
[40] I agree with the appellants that this case was not particularly complex such that the presumption of unreasonableness would be rebutted by this branch of the exceptional circumstances test under the new Jordan analysis. The main issue is therefore whether there were any "discrete events" that would qualify as exceptional circumstances.
[41] I return to consider the period from January 18, 2012 to October 17, 2012, when the preliminary inquiry was adjourned at the Crown's request as a result of the possible CI issue in the vetted ITO. In my view, this entire period of delay resulted from a "discrete event" amounting to exceptional circumstances under the Jordan framework.
[42] It is apparent from the transcript of the attendance that the circumstances were both reasonably unforeseen and unavoidable, and that Crown counsel could not reasonably remedy the delays emanating from the circumstances once they arose: Jordan, at para. 69.
[43] While disclosure was the responsibility of the Crown and there was significant delay and indeed apparent complacency in the Crown's approach to disclosure at the outset of the proceedings, there is no indication that anyone had turned their minds to the possible release of CI information before the appellants' counsel identified the potential issue 15 minutes before the start of the preliminary inquiry. No one alleged any error or carelessness on the part of the Crown in the vetting of the ITO; indeed, as I have already noted, it turned out that the concern about disclosure of a CI's identity was unwarranted. Once the issue was raised, an adjournment was inevitable. CI privilege is of such fundamental importance to the criminal justice system that it cannot be balanced against other interests relating to the administration of justice: R. v. Leipert, [1997] 1 S.C.R. 281, at para. 14.
[44] Further, while Crown counsel asked for the adjournment and even asserted "this is clearly on me", the circumstances necessitating the adjournment were outside the Crown's control. The court is not bound by erroneous concessions by the Crown in allocating periods of delay: R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 31. As the issue was identified only minutes before the preliminary inquiry was to begin, the Crown could not address the issue in a way that would avoid the necessity of an adjournment. The Crown could not therefore "reasonably remedy" or mitigate the delay emanating from this issue.
[45] These circumstances therefore qualify as a "discrete event" in the category of exceptional circumstances within the Jordan framework. As a result, the period of eight months, 28 days is deducted from the net delay of 39 months, 21 days, resulting in a remaining delay of 30 months and 23 days.
[46] Since the remaining delay remains above the 30 month threshold, the question is whether transitional exceptional circumstances exist that would render the delay reasonable.
(iii) Transitional Exceptional Circumstances
[47] To establish transitional exceptional circumstances, the Crown must satisfy the court that the time the case has taken is justified based on the previous legal framework, upon which the parties reasonably relied. The assessment is necessarily contextual and should account for the manner in which that framework was applied: Jordan, at para. 96; R. v. Williamson, 2016 SCC 28, 398 D.L.R. (4th) 577, at para. 24.
[48] Where, as here, the entire period of delay occurred, and the s. 11(b) application was determined, pre-Jordan, the determination of whether there were transitional exceptional circumstances involves an assessment of the delay under the previous Morin framework. This entails consideration of the application judge's findings (which are reviewable on the basis of palpable and overriding error) and her allocations of responsibility for delay (reviewable on a standard of correctness): Tran, at para. 19.
[49] Although the application judge erred in relation to her attribution of time to the defence for the delay stemming from the adjournment relating to the possible CI issue, her analysis and findings provide context for the evaluation of whether transitional exceptional circumstances are present.
[50] The application judge found that the institutional delay in the OCJ of just over 11 months was above the guideline (for matters in the Provincial Court) of eight to ten months, but that it was not unacceptable. She noted that, in the particular circumstances of this case, the delay attributable to the Crown was "concerning" in the overall scheme but was not egregious. These circumstances included the appellant McManus's re-arrest on additional charges relating to breach, considerable manoeuvring by his counsel to obtain bail on the new charges and to marry up to the existing charges, and "at the very least" there being "an acquiescence" with regard to McManus's court appearances. She noted that the Crown was prepared to proceed at the first preliminary inquiry date, which was adjourned after a defence request. The Crown's subsequent adjournment request was based on a concern relating to preservation of the identity of a CI, and although this frustrated the trial process, it was necessary. The application judge did not find any prejudice, actual or inferred, and she noted that the appellants were charged with serious indictable offences. While the application judge erred in stating that a stay of proceedings "must only be granted in the clearest of cases", her misstatement does not appear to have driven her analysis or the conclusion that the delay was not unreasonable. Indeed, she identified and applied the relevant Morin principles.
[51] In Williamson, the Supreme Court applied the Jordan framework to a case that was in the system prior to the new framework. The s. 11(b) application was dismissed at first instance. This court, applying the pre-Jordan framework, disagreed with that result and entered a stay on the basis that the 25 months of institutional delay exceeded the upper end of the Morin guideline of 14-18 months for a Superior Court proceeding, by about seven months, and was excessive. The Supreme Court, applying the post-Jordan framework, upheld the stay. Crown counsel was complacent, and made no effort to mitigate delay in the Superior Court, even after significant delay in the Provincial Court. The Crown's lack of initiative contrasted with diligence on the part of the defence to move matters forward, and there were only 1.5 months of delay attributed to the defence. The Supreme Court held that, although it was a "close case", and there was no significant prejudice to the accused, the previous state of the law could not justify the nearly three years it took to bring the accused to trial on relatively straightforward charges: Williamson, at paras. 25-30.
[52] Here, by contrast, applying the Morin framework, the delay was not unreasonable. First, I would calculate the institutional and Crown delay as within or only slightly exceeding the Morin guideline of 14-18 months. Although a reasonably straightforward prosecution, there was a joint underestimation of the time required for the preliminary inquiry, which once underway had to be adjourned three times for two or three months each time to address issues that arose and to accommodate argument. It is relevant that these adjournments were necessitated by inaccurate time estimates by counsel and developments in the case, and not by constrictions on institutional resources: see Tran, at paras. 54-57. As such, the period when the preliminary inquiry was underway but adjourned to be continued, that the application judge identified as "institutional delay" (at least three months), might better be characterized under the Morin framework, as "inherent" or "neutral" delay. Further, five months of the delay the application judge attributed to the Crown was justifiable (as noted earlier with respect to the CI issue) and can be characterized as neutral. There was no unreasonable delay in the Superior Court, which the application judge was justified in treating as neutral delay.
[53] Apart from the Crown's unreasonable delay in disclosing the ITO, which the application judge took into account, there was nothing to suggest an attitude of complacency by the Crown. There was no significant disparity between the conduct of the Crown and the defence in their approach to the proceedings. As the application judge noted, there was at the very least acquiescence by McManus's counsel and the defence raised concerns about delay on the record only after the proceedings reached the Superior Court. Indeed, in Williamson, the Supreme Court referred to the efforts of the defence to move the case along as a factor that informed whether a transitional exceptional circumstance justified a delay above the presumptive ceiling: at para. 29. While there was no waiver of delay by the defence, its acquiescence is relevant to and supports the application judge's refusal to infer prejudice: Morin, at pp. 802, 803. As for actual prejudice resulting from deprivation of liberty, this was not argued at first instance, and the bulk of McManus's incarceration while awaiting trial resulted from new charges.
[54] After taking into consideration the exceptional circumstances associated with one of the adjournments of the preliminary inquiry, the remaining delay exceeds the presumptive limit under Jordan by 23 days. Considering the case under the prior framework, I am satisfied that the Crown has rebutted the presumption of unreasonable delay based on transitional exceptional circumstances.
[55] Accordingly, I would reject this ground of appeal.
(2) Issue 2: Did the Trial Judge Err in Qualifying an Officer Involved in the Investigation as an Expert Witness and Admitting his Opinion?
(a) Ruling of the Trial Judge
[56] At the time of their arrest, McManus had an iPhone and Chapman a Blackberry. Forensic analysis of the devices turned up a large number of text messages. The Crown proposed to introduce the expert opinion of D.C. Bullick, an officer involved in the investigation of the offences, as to the meaning of certain words used in the text messages. The defence objected to the evidence, and a voir dire was held to determine admissibility.
[57] The principal objection was that D.C. Bullick was not impartial and independent, and therefore ought not to be qualified to provide an expert opinion. This was framed by the defence as a question of bias. D.C. Bullick was a member of the surveillance and warrant execution teams involved in the investigation. He discovered the cocaine in the apartment, and acted as the exhibit officer at the scene. D.C. Bullick had known McManus for approximately four years, and believed he was a drug trafficker. At a bail hearing for McManus a few months before trial, D.C. Bullick testified that he believed McManus was involved in organized crime. D.C. Bullick was present at the conclusion of the preliminary inquiry, when the presiding judge observed that the Crown's case was not strong. This event prompted D.C. Bullick, on his own initiative, to prepare a report analyzing the text messages, something he had not done at an earlier stage.
[58] All of these circumstances were explored with D.C. Bullick in his cross-examination on the voir dire. While he acknowledged that his specific knowledge of McManus's activities and associations presented a "delicate line", he confirmed the importance of "honour and being truthful", asserting that he was able to provide an expert opinion.
[59] During argument on the voir dire, the trial judge acknowledged the defence argument that bias is relevant to the admissibility of an expert opinion, but repeatedly suggested that defence counsel should simply explore D.C. Bullick's alleged bias in cross-examination before the jury. Defence counsel asserted that that would put the defence in a position where "they would have to let the jury know all kinds of different things about Mr. McManus." Ultimately, the trial judge qualified D.C. Bullick to provide expert opinion evidence on terminology and drug culture. Although the trial judge indicated written reasons would be forthcoming, he gave no reasons for his ruling.
[60] D.C. Bullick testified at trial about his involvement in the investigation of the offences. As an expert witness, he provided his opinion that certain text messages were indicative of drug trafficking by both appellants. He testified that phrases such as "are you good" and "what ya want" had drug-related connotations. He also testified that words like "half", "bling", "paper", "work", "cake", and "cook" were code words used in the context of dealing in narcotics. Defence counsel cross-examined D.C. Bullick on his alleged bias as a member of the investigative team who had found the drugs and believed McManus was guilty. He did not, however, address the fact that the officer knew McManus for four years and believed he was a drug trafficker and that he was involved in organized crime. When counsel attempted to elicit information about why and when D.C. Bullick decided to prepare an expert report, the trial judge refused to permit any questions that would reveal to the jury the comments by the preliminary inquiry judge, on the basis that this would elicit hearsay.
(b) Positions of the Parties
[61] The appellants contend that the trial judge erred in permitting D.C. Bullick to testify as an expert witness when he had an obvious stake in the prosecution. The appellants submit that the trial judge did not properly consider the fourth Mohan criterion, and that in the circumstances D.C. Bullick's evidence about the meaning of various words used in the appellants' text messages ought not to have been introduced at trial as he was disqualified from providing an expert opinion by bias. Further, requiring defence counsel to deal with the issue in cross-examination was not sufficient in this case, as D.C. Bullick could not be cross-examined properly without introducing prejudicial bad character evidence, and the trial judge placed unfair limits on the cross-examination.
[62] The Crown contends that there was no error in the trial judge's qualification of D.C. Bullick as an expert witness, and in admitting his opinion about the meaning of certain words used in the text messages as an indication of drug trafficking. There was no reason to disqualify him simply because he played a role in the investigation. As for the fourth Mohan criterion, there was no "realistic concern" that D.C. Bullick would not comply with his duty to be unbiased after he testified in the voir dire that he was cognizant of his role and the need to be independent. Finally, the appellants had the opportunity to cross-examine on the issue of bias, even if they felt it necessary to avoid addressing certain areas.
(c) The Relevant Principles
[63] To be admitted into evidence, an expert's opinion must be (1) logically relevant to an issue in the proceedings; (2) necessary to assist the trier of fact; (3) not precluded by an exclusionary rule; and (4) tendered by a properly qualified expert: Mohan, at pp. 20-25. The trial judge also has residual discretion to exclude evidence that meets these criteria where the benefits of receiving the evidence are outweighed by the potential risks inherent in the introduction of the evidence: Mohan, at p. 21. This is the two-stage analytical structure for the admissibility of expert opinion evidence recognized by this court in R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at paras. 76-77, and by the Supreme Court in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 22-24.
[64] In White Burgess, at para. 32, Cromwell J. described an expert's duty to provide opinion evidence that is fair, objective, and non-partisan:
Underlying the various formulations of the duty are three related concepts: impartiality, independence and absence of bias. The expert's opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert's independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party's position over another.
[65] Cromwell J. held that an expert's lack of independence and impartiality must be considered at the "gatekeeper" stage, and "goes to the admissibility of the evidence in addition to being considered in relation to the weight to be given to the evidence if admitted": White Burgess, at para 45.
[66] An assessment of independence, impartiality, and bias is relevant to the fourth part of the Mohan test in determining whether the expert is properly qualified, and also factors into the balancing of benefit and risks of such evidence: White Burgess, at paras. 53-54; R. v. Shafia, 2016 ONCA 812, at para. 228. A person who opposes the admission of the evidence on the basis of bias has the burden of establishing a "realistic concern" that the witness is unwilling or unable to comply with the duty and the proffering party must rebut this concern on a balance of probabilities to satisfy the Mohan test for admissibility: White Burgess, at para. 48.
[67] While an interest in or connection with the litigation does not automatically render the proposed expert evidence inadmissible, the court must consider whether the relationship or interest would result in the expert being unable or unwilling to carry out his or her primary duty to provide fair, non-partisan, and objective assistance: White Burgess, at paras. 49-50; R. v. Abbey, at para. 87. There is a heightened concern with police expert witnesses to ensure their ability to offer impartial expert evidence: see, for example R. v. Tesfai, 2015 ONSC 7792 (where measures taken to ensure the impartiality of the officer's opinion in a drug case were considered adequate) and R. v. T.A., 2015 ONCJ 624 (where the officer qualified to give expert opinion evidence was not involved in the investigation or the laying of charges and did not discuss his analysis with other officers involved in the project).
[68] Finally, the admissibility decision is entitled to deference on appellate review, unless there is an error in principle or the decision is unreasonable: Abbey, at para. 97; Shafia, at para. 234.
(d) The Principles Applied
[69] Regrettably, the trial judge did not properly consider the fourth Mohan criterion and did not fulfill his proper role as gatekeeper in respect of the proffered expert opinion. He did not give any real consideration to the question of D.C. Bullick's objectivity and ability to give independent and unbiased expert evidence and he did not consider the potential prejudice to the appellants if D.C. Bullick were allowed to testify in a dual capacity – both as an investigator as to several critical pieces of evidence forming part of the Crown's case and as an expert witness.
[70] D.C. Bullick's prior involvement with McManus and direct participation in the investigation and prosecution would immediately give rise to a concern about the officer's ability, despite his best intentions, to provide an impartial expert opinion. As explained in White Burgess, at para. 50, the question at the threshold stage is "whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance." Further, "it is the nature and extent of the interest or connection with the litigation or a party thereto which matters": at para. 49. While D.C. Bullick may have testified that he was willing and able to provide an independent opinion, ultimately it was up to the trial judge to evaluate whether he could, in fact, do so.
[71] D.C. Bullick's position as a police officer did not disqualify him from giving expert evidence. However, the evidence elicited in the voir dire demonstrated that D.C. Bullick was neither independent nor impartial. D.C. Bullick testified that he had known McManus longer than four years, and that he believed McManus was a drug trafficker. He testified about being involved in investigations of McManus in the past that led to charges, and that he prepared his report in response to the preliminary inquiry judge's comment that the Crown's case was not strong. This testimony suggested that D.C. Bullick had a strong interest in seeing that McManus was convicted. His opinion could not help but be coloured by facts and information that did not form part of the trial record. Finally, his evidence was important and central to the Crown's case. In submissions on the voir dire, Crown counsel characterized it as filling in "an extremely important gap in the Crown's case", and later stated that the interpretation of the cellphone information was "very strong evidence and important evidence for the Crown."
[72] I am satisfied that there was a "realistic concern" that D.C. Bullick was unable to comply with the duty of an expert to provide independent, impartial and unbiased evidence, and that the Crown did not rebut this concern on a balance of probabilities, to satisfy the fourth Mohan criterion for admissibility: White Burgess, at paras. 48, 53.
[73] It is indeed surprising that the Crown sought to rely on the expert evidence of D.C. Bullick. The evidence that D.C. Bullick provided could easily have been offered by another witness who had no connection to the case. In fact, the Crown had already sought a report from an officer who had no involvement in the investigation who gave expert evidence at trial, without objection, on the interpretation of coded language in the documents alleged to be debt lists, all based on evidence she observed at trial.
[74] Instead of ruling the expert opinion evidence inadmissible, the trial judge left the issue of bias to be addressed in D.C. Bullick's cross-examination before the jury. In doing so, the trial judge failed to appreciate the practical impossibility that would present. To effectively explore the grounds of D.C. Bullick's bias and partiality, the defence would necessarily have elicited prejudicial bad character evidence about McManus before the jury.
[75] In all of these circumstances, the evidence ought not to have been admitted. I would therefore give effect to this ground of appeal.
(3) Issue 3: Did the Trial Judge Err in the Corbett Ruling?
(a) Decision of the Trial Judge
[76] McManus brought a Corbett application at trial, submitting that the trial judge should edit his criminal record to exclude his prior drug possession and trafficking convictions from the jury should he testify in his own defence. His counsel conceded that a 2012 conviction for failing to comply with a recognizance and a 2008 conviction for possession of proceeds of crime should not be excluded, but argued that the jury's knowledge of the drug convictions would lead to propensity reasoning and have a prejudicial impact. The Crown submitted that restricting cross-examination to the two non-drug related convictions would mislead the jury about McManus's character, and that the vigorous cross-examination of D.C. Bullick justified introducing his entire record.
[77] The trial judge ruled that the Crown could cross-examine McManus on his 2012 conviction for failure to comply, and his 2008 conviction for possession of cocaine for the purposes of trafficking. The trial judge did not provide any reasons for his ruling.
[78] The following day, defence counsel sought clarification of the ruling. After confirming that the trial judge had in fact decided that the Crown could cross-examine his client on the one drug conviction, defence counsel informed the court that "based on [his] instructions and based on that ruling", McManus would not be testifying. Chapman also did not testify at trial.
(b) Positions of the Parties
[79] The appellants contend that the trial judge erred in ruling that the Crown could cross-examine McManus on one of his prior drug convictions, which ought to have been excluded on a proper Corbett analysis.
[80] The Crown acknowledged in argument on appeal that the trial judge probably misspoke when he identified McManus's prior conviction for a drug offence as one of the two offences in respect of which he could be cross-examined. However, the Crown says that the ruling was nevertheless reasonable. Once it was apparent the appellant's defence was that the drugs that were seized belonged to someone else, cross-examination of McManus on all of his convictions, including the drug convictions, would have been justified. The Crown relies on two decisions of this court: R. v. Parsons (1993), 84 C.C.C. (3d) 226 (Ont. C.A.), at p. 238 and R. v. Paul, 2009 ONCA 443, 249 O.A.C. 200, at paras. 14, 18.
(c) The Relevant Principles
[81] Pursuant to s. 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5, a witness may be questioned as to whether he or she has been convicted of a criminal offence. Typically, the relevance of such evidence is in respect of the witness's credibility, and the evidence cannot be used as bad character evidence or for propensity reasoning. Under Corbett, a court can be asked to exclude parts of a criminal record where its probative value is outweighed by its prejudicial effect. As the court noted in Corbett, a jury is presumed to follow the court's instructions about the proper use of evidence of prior convictions: Corbett, at p. 690. The right to a fair trial is the context in which the balancing exercise must be effected: R. v. Saroya (1994), 36 C.R. (4th) 253 (Ont. C.A.), at para. 5.
[82] The question in each case is whether excision of the conviction in question would leave the jury with incomplete and therefore incorrect information about an accused's credibility as a witness. Relevant factors include: the nature of the previous conviction; its remoteness or nearness to the present charge; and the similarity to the offence charged: Corbett, at pp. 740-744. Another potential factor identified in Corbett is the need to maintain a balance between the position of the accused and that of a Crown witness who has been subjected to a credibility attack on the basis of his or her criminal record or otherwise, although this factor should not override the concern for a fair trial: Corbett, at pp. 742-744. Any attack on the integrity of a Crown witness is not sufficient to make the accused's entire record admissible; rather, what is contemplated is an attack on the Crown witness's credibility based on his or her character, especially as disclosed in his or her criminal record: R. v. Brown (2002), 166 C.C.C. (3d) 570 (Ont. C.A.), at para. 24. See also R. v. Bomberry, 2010 ONCA 542, 78 C.R. (6th) 191, at para. 50.
[83] In R. v. Brand (1995), 98 C.C.C. (3d) 477 (Ont. C.A.), this court held that a trial judge erred by rejecting the Corbett application of an accused charged with trafficking cocaine who sought to exclude three prior convictions for trafficking in narcotics. This court noted that the three drug convictions had no probative value with respect to the accused's credibility but were highly prejudicial. See also R. v. Wilson (2006), 210 C.C.C. (3d) 23 (Ont. C.A.), at para. 33.
[84] Typically, deference is owed to a trial judge's determination of a Corbett application, except where the decision is made on a wrong principle: Wilson, at para. 32; R. v. Talbot, 2007 ONCA 81, 217 C.C.C. (3d) 415, at para. 37. However, no deference is owed where the trial judge failed to give reasons.
(d) The Principles Applied
[85] Although the trial judge's application of the Corbett principles was a matter of judicial discretion, appellate intervention is required when a trial judge fails to consider relevant factors in the exercise of that discretion. In this case, there is no place for deference, and no indication that the trial judge's discretion was exercised reasonably because no reasons were provided for his decision. Indeed, in light of this court's jurisprudence, the ruling is unreasonable: Brand, at para. 8; Brown, at paras. 24-26; Wilson, at paras. 31-34.
[86] The trial judge's decision to include reference to a 2008 conviction for possession for the purpose of trafficking, but to exclude a contemporaneous conviction for possession of the proceeds of crime, especially when defence counsel had conceded the admissibility of the latter conviction, is puzzling. It is likely that the trial judge misspoke, and that he repeated his error even after defence counsel requested clarification.
[87] In weighing the prejudicial effect and probative value of admitting the 2008 drug conviction, there is no question that the balance favoured exclusion. The nature and timing of the drug conviction increased the risk of propensity reasoning by the jury. It would have been sufficient for the jury to be made aware of the other non-drug offences in McManus's criminal record. This awareness would allow the jury to properly assess his credibility without risking propensity reasoning based on knowledge of a recent conviction for a drug offence that was virtually identical to the charges before the court.
[88] I turn to the Crown's assertion that McManus could have been cross-examined on his entire criminal record once it was asserted that the drugs belonged to someone else, and, in particular, the reliance on this court's decisions in Paul and Parsons.
[89] In Corbett the Supreme Court referred as a "possible" relevant factor in the probative value versus prejudice analysis, to the need to maintain a balance between the position of the accused and that of a Crown witness who has been subjected to a credibility attack. In Paul, a case relied on by the Crown, this court observed that, while the defence had not attacked the credibility of Crown witnesses, it proposed to point the finger of guilt at a third party and no doubt would include a vigorous attack on the credibility of that person, to suggest he was the perpetrator. The court concluded it would be unfair to prevent the use of the accused's criminal record (with the most prejudicial parts having been excised) to assess his own credibility.
[90] Paul does not stand for the principle advocated by the Crown that, once the defence pointed the finger at Averill, McManus's entire criminal record would have been admissible as a matter of fairness. This was not a case where there was an anticipated "vigorous attack" on a third party's credibility by the defence, using his criminal record, or otherwise. To the contrary, Averill was put forward as a defence witness with the intention that the jury accept his evidence.
[91] Nor does this court's decision in Parsons assist the Crown. Parsons involved propensity evidence. The defence sought to tender evidence of a third party suspect, consisting of that person's penitentiary ID card and the fact of his arrest for similar robberies at the time. This court concluded that the trial judge was correct to rule that, if evidence relating to the third party's propensity to commit robberies were introduced into evidence, fairness dictated that the very similar evidence the Crown possessed relating to the appellant could also be introduced. "To rule otherwise would leave the jury with the highly misleading impression that [the third party] alone had a propensity to commit robberies, whereas in truth he was part of a gang that committed robberies and the appellant was part of that gang": at para. 25.
[92] Here, the appellants did not rely on Averill's propensity to have committed the offence such that McManus's own propensity might have been engaged. Rather, the defence put forward Averill knowing that he would testify that he in fact owned the drugs in question. Averill's criminal record was not evidence of his propensity to commit the offence. As the trial judge properly instructed the jury, it could only be used to assess Averill's credibility.
[93] For these reasons, I am satisfied that the trial judge erred in his Corbett ruling. McManus and Chapman decided not to testify at the trial. In McManus's case, the decision was made after clarification of the Corbett ruling. The error in the trial judge's Corbett ruling is an error affecting the fairness of McManus's trial, and I would give effect to this ground of appeal in McManus's appeal.
[94] With respect to Chapman, although her counsel in argument on the appeal relied on the Corbett ruling error, she did not participate in the Corbett application at trial, nor was there any indication that her decision not to testify was in any way related to the disposition of McManus's Corbett application. In these circumstances, her reliance on this error in support of her appeal is doubtful. As I would allow Chapman's appeal for other reasons, it is unnecessary to say anything further about Chapman's reliance on this ground of appeal.
(4) Issue 4: Was the Trial Judge's Charge About the Defence Witness Unfair?
(a) The Charge to the Jury
[95] Averill was the only defence witness at trial. He testified that, while he lived somewhere else, he informally subleased the Waterloo Street apartment for use as a "safe house". He said that Chapman would sometimes meet him at the apartment to have sex, and that he allowed her to stay there when she worked in London since she lived out of town. He testified that McManus had been in the apartment with some mutual friends on at least one occasion. Averill said he sold drugs to make a living. He admitted to having an extensive criminal record, including convictions for drug offences and crimes of dishonesty. He said that on February 4, 2010, he had "half a key" (half a kilogram) of cocaine hidden under the bathroom sink and around "a pound of weed" in the kitchen freezer or crisper, which corresponded with the drugs the police seized in the search.
[96] The trial judge referred to Averill's evidence at a number of points in his charge to the jury. First, he provided an instruction as to the proper and prohibited uses of evidence of Averill's prior convictions. Averill had a lengthy criminal record, and the trial judge pointed out that many of the convictions were for crimes of dishonesty and that he also was convicted of breaching a recognizance on multiple occasions, which showed a disregard for court orders. The trial judge concluded: "It is your decision how much you wish to rely upon Mr. Averill's evidence. Would you enter into a business arrangement with Mr. Averill? Use your common sense to determine how much weight you wish to rely upon Mr. Averill's evidence [sic]."
[97] Next, the trial judge referred to Averill's evidence in summarizing the appellants' positions. In reviewing McManus's position, the trial judge said that Averill testified that the apartment was one of many of his "stash houses" where he stored his drugs. Averill gave details of where the drugs were kept in the apartment, the type, and the amount. He admitted his criminal record, and defence counsel contended his credibility was not challenged in any substantial way. A similar account was provided as part of the summary of Chapman's position. No objection is raised with respect to this part of the charge.
[98] Later, the trial judge referred to Averill's testimony in his summary of the evidence. The following excerpts are representative of this part of the charge:
The defence relies upon the evidence of Mr. Averill. He gave direct evidence that he was the person that put the cocaine in the small bathroom behind the door. He was the person that had the marijuana in the freezer. His testimony of all his evidence in-chief took about 20 minutes. He has a number of significant convictions which indicate a tendency of dishonesty. He said he usually stores marijuana in the freezer or crisper.
There are no documents supporting his presence at [the Waterloo Street apartment]. There is no surveillance that he was present at [the Waterloo Street apartment] when they were watching that building.
The defence rests on the credibility and reliability of Mr. Averill.
With respect to the Crown's reliance on circumstantial evidence there was not one piece of objective and verifiable evidence that he went to [the Waterloo Street apartment]. The Crown relies upon surveillance, the search and the text messages and the interpretation of the words in the text messages.
Ms. Chapman's passport was found in the jewelry box on top of the dresser. Now ask yourself if she is not a tenant there and she only drops by to visit Mr. Averill for sex as he said, why do you put your passport in a jewelry box? When you are looking at both the direct evidence and the circumstantial evidence you have to evaluate it critically.
He wanted to show you that he is a big drug trafficker and that is up for you to determine whether you think he was a big drug trafficker. He listed all these cars. There is no evidence, documentary evidence, apart from his word, that he owned these cars. There is no direct evidence for example of Ms. Chapman or Mr. McManus had drugs on their persons, but there is some evidence connecting them to that apartment.
You had the officer that came and investigated. Notice that he said Mr. Averill said that he only used the place for a stash house. Funny use for a stash house — clothes, debt books and other things that were found there. So, there is no explanation but he was not in fairness, he was not asked about the debt books. He was not cross-examined on the debt books.
[99] At trial, counsel for the appellants objected to aspects of the jury charge regarding Averill on the basis that it effectively told the jury to reject his evidence. The trial judge refused to correct the charge.
(b) Positions of the Parties
[100] The appellants submit that the trial judge's treatment of Averill's evidence reflected the trial judge's rejection of that evidence, resulting in a charge that unduly favoured the Crown. The trial was therefore unfair.
[101] The Crown contends that, read as a whole, the charge was balanced and fair, and that the trial judge simply pointed out to the jury the weaknesses in Averill's evidence and parts of his criminal record that affected his credibility.
(c) The Relevant Principles
[102] An important cornerstone of a jury charge is its objectivity: "In an otherwise partisan atmosphere, the jury is entitled to look to the charge to guide it safely through its deliberations and assist it in arriving at a true verdict according to law": R. v. Baltovich, (2004), 73 O.R. (3d) 481 (C.A.), at para. 115.
[103] While a trial judge is entitled to express an opinion about the evidence, there is an overall requirement that the charge is balanced and fair. A determination of whether the charge is balanced and fair requires an examination of the charge as a whole. A charge is unfair where the trial judge "deliberately or inadvertently [places] her thumb on the Crown's side of the scales of justice": R. v. Paredes, 2014 ONCA 910, 317 C.C.C. (3d) 415, at para. 41 or "unduly [promotes] the Crown's case and effectively [ignores] or [underplays] significant elements of the case for the defence": R. v. B.B., 2009 ONCA 552, 251 O.A.C. 146, at para. 17.
(d) The Principles Applied
[104] I agree with the appellants that the trial judge's treatment of Averill's evidence unduly promoted the Crown's case and denigrated the defence's case, thereby compromising the appearance of fairness in the trial.
[105] The trial judge made it clear to the jury that he found Averill's evidence unworthy of belief and he urged them to reject it. He did so by contrasting the type of evidence on which the Crown relied in support of a conviction with the absence of "objective and verifiable evidence" to support Averill's account. The trial judge's emphasis on a lack of evidence corroborating Averill's testimony tended to inappropriately shift the burden of proof to the appellants. Such a Vetrovec-like caution is inappropriate for a defence witness: Vetrovec v. The Queen, [1982] 1 S.C.R. 811; R. v. Tzimopoulos (1986), 29 C.C.C. (3d) 304 (Ont. C.A.), at pp. 339-340.
[106] The trial judge pointed to the brevity of the defence evidence, which was essentially irrelevant in determining whether such evidence raised a reasonable doubt. He also used rhetorical questions. In Baltovich, at paras. 145-146, this court cautioned that rhetorical questions that admit of only one answer should be avoided "lest the trial judge be seen as taking up the Crown's cause and casting off the mantle of objectivity."
[107] I agree that the treatment of the defence evidence by the trial judge in his charge to the jury affected the fairness of the trial. I would therefore give effect to this ground of appeal.
D. Conclusion and Disposition
[108] While I would not give effect to the appellants' s. 11(b) argument, I have concluded that the trial judge erred: in admitting the expert opinion evidence of a police witness who was not impartial and independent; in his Corbett ruling which preceded McManus's decision not to testify; and in his treatment of the defence evidence in his charge, which lacked balance and objectivity. The overall and combined effect of these errors is that the appellants were denied a fair trial. I would therefore allow the appeal, set aside their convictions, and direct a new trial.
"K. van Rensburg J.A."
"I agree David Watt J.A."
"I agree Gloria Epstein J.A."
Released: March 3, 2017
