Court File and Parties

Court File No.: 12-70000077-AP
Date: 2012-11-14
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Dylan Blaker

Before: M.A. Code J.

Counsel:
Brad Demone, for the Crown/Appellant
Richard Litkowski, for the Respondent

Heard: November 13, 2012

Endorsement

[ 1 ] The Respondent Dylan Blaker (hereinafter, Blaker) was acquitted at trial on an Information charging him with one count of breach of probation, contrary to s. 733.1(1) of the Criminal Code . The Crown proceeded summarily before Moore J.

[ 2 ] The acquittal arose at the end of the Crown’s case on a directed verdict motion. There was no issue that the accused Blaker was bound by the probation Order of Clements J. at the relevant time, as a result of a conviction for threatening bodily harm to Sarah Lane. The probation Order prohibited Blaker from associating, contacting or communicating, directly or indirectly, with Sarah Lane. There was evidence that Blaker had written two letters to Ms. Lane while he was in jail.

[ 3 ] The sole focus of the directed verdict motion was on two exceptions to the “no contact” term of probation. They provided that there could be contact “with her [Ms. Lane’s] written and revocable consent to be filed with Probation or pursuant to a Family Court Order”. The trial judge focused on the second exception. He held that “there is no evidence before the court with respect to an essential averment in the charge”, namely, the possibility that there was a Family Court Order allowing Blaker to contact Ms. Lane. The trial judge held that the Crown had the burden of calling some evidence to negative this possibility, during its own case, as he held that the exception was an essential element of the offence.

[ 4 ] The distinction between an “essential element” of the offence, which the Crown must always prove in every case, and a “defence” which may or may not arise in any given case, is a difficult area of law. In either case, the ultimate burden of proof remains on the Crown. However, in relation to defences, there is a tactical or evidentiary burden on the defence to raise the matter to an “air of reality” standard. Only then must the Crown negative the defence beyond reasonable doubt on the facts of that particular case. Justice Watt explained the distinction in Watt’s Manual of Criminal Evidence , Carswell 2012, at 172:

There is no formula capable of unerring application to determine where the burden of proof lies on any particular issue. Precedent dictates the response.

In general terms, P bears the legal burden of proving the essential elements of the offence charged. It is incumbent on P to establish the facts essential to the proof of its allegation of crime . Preliminary to the trier of fact deciding whether P has met the legal burden of proof, however, P is required to satisfy the evidential burden in respect of the same issues. Satisfaction of the evidential burden requires the judge to submit the case to the trier of fact to determine whether the legal burden has been met.

In matters of defence, justification, or excuse, D bears the evidential burden. There must be evidence that is apt to convey a sense of reality to the defence, justification, or excuse to entitle D to have it considered by the trier of fact. Where D meets the evidential threshold, the legal burden is upon P to negate the applicability of the defence, justification or excuse . Whether the legal burden has been met is a jury question. [Italics in the original, underlining added for emphasis].

[ 5 ] I recently discussed this issue in R. v. J.G ., 2012 ONSC 1090 , [2012] O.J. No. 657 (S.C.J.), in the context of the offence of breach of probation, and stated the following, albeit in obiter dicta in that case:

… where the facts elicited in evidence at trial give an “air of reality” to some “exception” or “exemption”, then the issue is properly raised and the Crown must negative that “exception” or “exemption” by proof beyond reasonable doubt. In other words, where the “exemption” or “exception” has become a viable defence on the facts of a particular case, the Crown must negative that defence, just like duress, necessity, self-defence, provocation, mistake of fact and most other defences.

The error in law committed by the trial judge in the case at bar was in treating the counseling exception as an element of the offence that had to be negatived by the Crown, even when the exception had never been properly raised on the facts of the case . [Emphasis added].

Also see: R. v. Mertick , [2008] O.J. No. 5739 at paras. 32-50 (S.C.J.)

[ 6 ] Applying the above reasoning, I am of the view that the trial judge erred in treating the possible existence of a Family Court Order as an “essential element” of the offence that the Crown always must negative as part of its case. It is simply a potential defence that may or may not arise on the particular facts of a particular case, at some point in the evidence, either in cross-examination of the Crown’s witnesses or during the defence case. Once it arises, and reaches the “air of reality” threshold, then the Crown must negative it beyond reasonable doubt by the end of the case. See: R. v. Kelsey (1953), 1953 5 (SCC) , 105 C.C.C. 97 at 102 (S.C.C.); R. v. Squire (1976), 1976 26 (SCC) , 29 C.C.C. (2d) 497 at 501-4 (S.C.C.); R. v. Laybourn et al (1987), 1987 56 (SCC) , 33 C.C.C. (3d) 385 at 390-392 (S.C.C.); R. v. Osolin (1993), 1993 54 (SCC) , 86 C.C.C. (3d) 481 at 510-511 and 526-531 (S.C.C.); R. v. Cinous (2002), 2002 SCC 29 , 162 C.C.C. (3d) 129 at paras. 50-91 (S.C.C.). In the latter case, the majority held that the “air of reality” test requires “an assessment of whether the evidence relied upon is reasonably capable of supporting the inferences required for the defence to succeed”.

[ 7 ] There are reasons of principle that support this result. The applicability or inapplicability of court-ordered exceptions will never arise on the facts of many cases alleging breach of a court order. It would be misleading to refer to irrelevant exceptions as “essential elements” that must always be proved. It is more accurate to characterize exceptions to court orders as “defences” that sometimes arise in particular cases. There are also practical policy reasons that support this result. Almost all court orders, whether terms of bail or terms of probation or terms of conditional sentences, contain a number of exceptions. It would unnecessarily lengthen criminal trials and waste investigative resources to require the Crown to negative all exceptions in advance, during the Crown’s case, whenever breach of a court order is charged. I note that in its recent decision in R. v. Khawaja (2010), 2010 ONCA 862 , 273 C.C.C. (3d) 415 at paras. 152-169 (Ont. C.A.), the Court held that a statutory “exception” to crimes involving “terrorist activity” required “an evidential foundation … referred to as the ‘air of reality’ test”. The Court agreed with counsel that “the exception operates much like a traditional defence”. I can see no reason in principle for distinguishing between a court-ordered “exception” to an offence and a statutory “exception” to an offence.

[ 8 ] For all these reasons, it would normally be an error in law to entertain a directed verdict motion in order to determine whether the Crown had led some evidence to negative a “defence”. However, in the case at bar, the Crown actually pleaded the two exceptions in the Information as follows:

“unlawfully did … fail or refuse to comply without reasonable excuse with said Order to wit: by … contacting … directly or indirectly … Sarah Lane without her written revocable consent filed with Probation or pursuant to Family Court Order. ” [Emphasis added].

[ 9 ] In J.G. , supra , the Crown did not plead any of the exceptions to the term of probation and simply alleged the offence as “failing or refusing to comply with a condition of the said order to wit: not have any contact directly or indirectly with co-accused Justin Pickering”.

[ 10 ] Not only did the Crown expressly plead the two exceptions to the “no contact” term in the present case but it then called Blaker’s probation officer, Alec Cymbalista, and questioned him about the two exceptions. He testified that he had not “received any written revocable consent from Ms. Lane” to permit contact with Blaker. He went on to explain that any such consent “would come through me as the supervising probation officer”. The Crown then asked Mr. Cymbalista about the Family Court Order exception and he replied, “I’m not specifically aware of any. I haven’t received any documentation. I spoke to Ms. Lane … I have not received any documentation related to any Family Court Order.”

[ 11 ] In a brief cross-examination, defence counsel prefaced her question by summarizing the above evidence to the effect that Mr. Cymbalista was the supervising probation officer and he was not aware of and had not seen any Family Court Order. She then asked one question as follows:

Q. You will certainly agree with me that that doesn’t mean that there isn’t any?

A. There is a possibility, yeah.

[ 12 ] Defence counsel never went on to explore whether this “possibility” was a reasonable possibility, as opposed to a merely speculative possibility. Similarly, Crown counsel did not seek to clarify this point in re-examination. The distinction between speculative possibilities – “anything is possible” – and rational possibilities that are based on evidence would be important at the end of the case in determining whether there was a reasonable doubt in relation to the Family Court Order exception. For example, if the supervising probation officer had conceded that he would not always be aware of any permissive Family Court Order, in a case like the present one, then it could be argued that there was a reasonable possibility concerning the existence of such a permissive Order, as opposed to a mere speculative possibility.

[ 13 ] In a unanimous decision in R. v. Nadeau (1984), 1984 28 (SCC) , 15 C.C.C. (3d) 499 at 501 (S.C.C.), Lamer J. as he then was, said the following:

“… the accused is entitled, unless a fact has been established beyond a reasonable doubt, to the finding of fact most favourable to him, provided of course that it is based on evidence in the record and not mere speculation .” [Emphasis added].

In R. v. Finlay and Grellette (1985), 1985 117 (ON CA) , 23 C.C.C. (3d) 48 at 58 (Ont. C.A.), Martin J.A. gave the judgment of the Court. He reviewed the leading authorities and stated:

“This Court has held on a number of occasions that reasonable possibilities in favour of the accused may give rise to reasonable doubt and that it is an error to exclude reasonable possibilities from the concept of reasonable doubt by directing the jury that reasonable doubt must be based on probabilities, not possibilities”. [Emphasis added].

Also see: R. v. Morrissey (1995), 1995 3498 (ON CA) , 97 C.C.C. (3d) 193 at 209 (Ont. C.A.).

[ 14 ] On the above somewhat unsatisfactory record, I am inclined to the view that the Crown had particularized the pleadings so as to allege that Blaker was not the subject of a permissive Family Court Order. This part of the pleadings was unnecessary. The form of pleading used in J.G. , supra , as set out above, is sufficient to identify the transaction referred to in the charge. Pleading various potential exceptions, that may or may not apply on the particular facts of the case, would normally be subject to “the surplusage rule” and they could be ignored. However, in this case, the Crown also appeared to undertake proof of the fact that the exceptions did not apply and called evidence on this point during its case. More importantly, the defence was conducted in a way that relied on the fact that the exceptions had been pleaded and on the fact that the Crown had called evidence to prove that they did not apply. Defence counsel had cross-examined on the point, had then moved for a directed verdict on this basis alone, and had not yet elected whether to call defence evidence on the point. It is trite law that “the surplusage rule” has no application where the defence has relied on an unnecessary particular and has conducted the defence on the basis that the Crown will prove that particular. See: R. v. Coté and Vezina (1986), 1986 93 (SCC) , 23 C.C.C. (3d) 481 (S.C.C.); R. v. Rosen (1985), 1985 58 (SCC) , 16 C.C.C. (3d) 481 (S.C.C.); R. v. Hawkshaw (1986), 1986 68 (SCC) , 26 C.C.C. (3d) 129 (S.C.C.); R. v. Rooke and DeVries (1990), 1990 1131 (SCC) , 56 C.C.C. (3d) 220 (S.C.C.). In these circumstances, it was appropriate to hear the directed verdict motion and determine whether the Crown had called “some evidence” to negative the permissive exception.

[ 15 ] The trial judge should, nevertheless, have dismissed the motion. The Crown had pleaded an unnecessary particular, and was required to prove it in the unusual circumstances of this case, but the Crown had also called sufficient evidence concerning this particular to get past a directed verdict motion. The evidence of the probation officer, set out above, amounted to a prima facie case that there was no permissive Family Court Order. At the end of the case, the trial judge would have to decide whether there was any reasonable doubt on the point. As set out above, this question turns on whether the existence of a permissive Family Court Order was a rational possibility or a speculative possibility.

[ 16 ] In the result, the directed verdict motion should have been denied. Rather than ordering a new trial, the appropriate remedy is to set aside the acquittal and order that the trial resume before Moore J. at the point where it left off. In that way, Blaker can elect whether to call any defence evidence concerning the possible Family Court Order or can elect to leave the trial record in its present state. See: R. v. Bellusci (2012), 2012 SCC 44 , 94 C.R. (6 th ) 221 (S.C.C.).

M.A. Code J.

Date: November 14, 2012