Court File and Parties

Court File No.: CR-18-5-537 Date: 2018-10-01 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Dale Lapps Defendant

Counsel: Erin Pancer, for the Crown/Respondent David Parry, for the Defendant/Applicant

Heard: Monday, September 17, 2018

Before: McWatt J.

Ruling on Defence Application for Counsel to Resile from an Admission Pursuant to s. 655 of the Criminal Code

[1] Dale Lapps is charged with Importing Cocaine and Possessing Cocaine for the Purpose of Trafficking. This is his third trial date. The first trial ended in a mistrial because the jury could not reach a verdict. At the second trial, Mr. Lapps was convicted of the Importing and Possession for the Purpose charges, but the jury could not reach a verdict on a Trafficking Cocaine count. He appealed that conviction and the Ontario Court of Appeal ordered this trial.

[2] The date of the offence is March 10, 2009. Mr. Lapps, a truck driver with his own trucking business back then, is alleged to have brought 8 kilograms of cocaine into Canada from the United States and given it to Kenneth Jackson. Mr. Jackson was the subject of a wiretap authorization and, due to information gathered by police, he was being followed on the date of the offence. The evidence at trial will be that police saw Mr. Lapps give a teal coloured bag to Mr. Jackson in an industrial area. Mr. Jackson put the bag in his car. After a short conversation, the two men left the area. Mr. Jackson was followed to his home by police, and through surveillance, was seen taking the bag into his condominium unit. Sometime later that day, he left his residence and was arrested by police.

[3] The police searched his home and found the bag with 8 bricks of cocaine.

[4] In the first trial, Mr. Lapps testified and introduced his trucking logs for the dates in question. The Crown had never seen the records before. On the second trial, he did not testify, but his lawyer introduced the trucking records as part of the case.

[5] At this trial, the Crown wishes to introduce the records as part of its case and, initially, the defence agreed to the admission of them. Now, the applicant wishes to resile from that admission.

[6] The following is the way in which this matter comes before this court. I have taken these facts from the Crown factum. They are not in dispute.

1. On July 13th, 2018 an email was sent to counsel for Mr. Lapps. The email included an attachment - a proposed Agreed Statement of Facts. Counsel was asked to review the ASF and advise sooner rather than later if it was agreeable. One of the listed concessions in the document was Dale Lapps’ trucker logs.
2. Counsel did not respond to the email.
3. On July 17th, a follow up email was sent pointing out that the document had been sent and requesting a response. Counsel replied and advised that he had received the proposed ASF but that he was dealing with a family situation and needed more time to provide a response.
4. On July 23rd, counsel was once again asked when he would be replying to the proposed ASF.
5. On August 8th, counsel sent an email advising that he was getting into the file and that he was now bringing a section 7 motion. In response, an email was sent to counsel about the section 7 motion and, once again, counsel was asked about the ASF. Further, counsel was advised that if he didn’t respond, the Crown would be bringing the matter into court in order to seek guidance from a case management judge. Counsel in turn replied and advised that he was looking at the ASF but needed instructions on a few points and that hopefully it would happen soon.
6. On August 16th, 2018 counsel finally sent an email back addressing a number of points in the proposed ASF. The Crown sent a response to his email that same day.
7. On August 21st, 2018 another email was sent advising counsel that the Crown was waiting for the rest of counsel’s input regarding the ASF.
8. On August 26th, 2018, an email was sent to counsel once again pointing out that the Crown was waiting to hear about the remaining portions of the ASF that counsel had not responded to. Further, counsel was asked about the trucker logs specifically and it was pointed out to counsel that there were alternate means by which the Crown could tender the document (specifically through prior counsel).
9. On August 27th, 2018 counsel conceded the trucker logs. He agreed that they could be admitted in the Crown’s case.
10. On September 11th, 2018, counsel advised that he was no longer admitting the trucker logs and that his admission was done in haste.

[7] The applicant does not dispute that the logs are those made by him and are truthful and accurate. He is, however, not agreeing that they are admissible as evidence in the trial. If admitted in some other fashion, the applicant will not challenge the records for the truth of their content.

[8] The Crown has proposed that the records can be admitted in several different ways. Even though made in the ordinary course of business, the company for which the records were made by Mr. Lapps is no longer in business. There is no Canada Evidence Notice to admit the records in the Crown’s hands as it was Mr. Lapps who introduced the records at his first trial.

[9] The Crown submits that the records can be admitted in one of the following ways. She has set them out as follows:

1. 655 Admission: It Is In Writing, Relied Upon By The Crown, Akin To A Judicial Pre-Trial Admission, Counsel Is Bound By It And If He Wants To Take It Back, He Must Get The Leave Of The Court;
2. Rules of Professional Conduct 5.1-6: A Lawyer Must Fulfill His Undertaking;
3. Admission at A Prior Proceeding Is Admissible At A Subsequent Proceeding [R. v. Baksh, 2005 ONSC 24918, [2005] OJ No 2971 (ONSC)];
4. Calling Prior Counsel: Prior Counsel Can Speak To The Authenticity Of The Document And That It Came From Dale Lapps;
5. Transcripts Of Prior Proceedings Can Be Tendered To Establish The Veracity Of The Document;
6. Section 23 Of The CEA: Once It Was Tendered As An Exhibit, The Log Is Part Of The Court Record And Section 23 Allows It To Be Tendered As A Certified Copy;
7. The Exhibit Is Part Of The Public Record And Can Be Tendered Through The Prosecution So Long As A Witness Can Speak To What It Is.

[10] If I had granted this application by Mr. Lapps to resile from his admission regarding his trucking records, I would have allowed the Crown to tender the records pursuant to section 23 of the Canada Evidence Act, which sets out that

(1) Evidence of any proceeding or record whatever of, in or before any court in Great Britain, the Supreme Court or Federal Court of Canada, any court in any province, any court in any British colony or possession or any court of record of the United States, of any state of the United States or of any other foreign country, or before any justice of the peace or coroner in any province, may be given in any action or proceeding by an exemplification or certified copy thereof, purporting to be under the seal of the court or under the hand or seal of the justice or coroner, as the case may be, without any proof of the authenticity of the seal or of the signature of the justice or coroner, or other proof whatever.

[11] The application fails, however, because it was an admission pursuant to section 655 of the Criminal Code as part of these trial proceedings.

[12] First, Mr. Parry has not conceded that he is required to bring an application in order to resile from his original undertaking to the Crown on August 27, 2018 to admit the trucking logs. I find, on the basis of the case law, that such an application is necessary.

[13] In R. v. Kolton, [2000], E.W.J. No. 2044 (C.A.), at para. 30, the Court set out that if counsel wishes to resile from admissions, “first, the permission of the judge is required”.

[14] In R. v. Baksh, 2005 ONSC 24918, [2005] OJ No 2971 (ONSC) at para. 106, Justice Hill quoted Wigmore, at s. 2590, that a trial court always “has discretion to avoid the consequence of an admission.” In that case, he was dealing with admissions in an agreed statement of fact from a prior mistrial. Clearly, the decision to excuse counsel from an admission must be had from the trial judge (See also R. v. Basi, 2010 BCSC 140, at paras. 9, 16 and 17).

[15] Second, counsel submitted that the trial had not commenced, therefore he could withdraw his admission. I disagree. The admission was in writing and accepted by the Crown in the lead up to the trial. It did not matter that the trial had not actually commenced. He could only have withdrawn it, earlier or now, with the consent of the Crown. If his submission had any merit, it would mean that undertakings and admissions made at judicial pre-trials in this jurisdiction would have no value whatsoever.

[16] An admission is an express waiver conceding, for the purposes of the trial, the truth of some alleged fact. Once the fact is admitted, it is not open to challenge. An admission "has the effect of a confessory pleading" with the fact then taken for granted requiring no further proof by the party benefitting from its admission, and, immune from contradiction by its maker. An admission may be oral, written or by conduct. (R. v. Falconer, 2016 NSCA 22 at para 45; R v Baksh, supra, at para. 82).

[17] Parties that agree to an admission must also consider their professional obligations. Admissions are protected by Rule 5.1-6 in the Rules of Professional Conduct which sets out that “A lawyer must strictly and scrupulously fulfill any undertakings given by him or her and honour any trust conditions accepted in the course of litigation. [Commentary] Unless clearly qualified, the lawyer's undertaking is a personal promise and responsibility.”

[18] Lawyers must fulfil their undertakings. This is a fundamental principle in an adversarial system. The Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (The Martin Committee Report) at p. 29 set out the following:

“No decision taken in the context of an adversarial criminal proceeding is without consequences for other participants in the process. ... Because parties who stand in adversarial relationships to each other will be greatly affected by each other’s decisions in discharging their own duties, there is an inherent necessity that those decisions be reliable. Simply put, if Crown counsel, defence counsel, and police officers cannot rely upon each other with respect to the information they convey to each other about the case at hand, none of these three parties can properly do their own job, and the administration of justice as we presently understand it becomes unworkable.”

[19] A party seeking to withdraw from an admission made pursuant to section 655 of the Criminal Code must apply for a court order permitting the withdrawal of the admission. Admissions can be made at any time. Admissions that form the basis for the trial estimate at the judicial pre-trial are admissions. To change the estimate, before the trial starts, counsel should have to make an application.

[20] Third, the Court in Kolton, supra, at para. 30, also commented on the likelihood of counsel being able to resile from the earlier promise, saying that “secondly, the judge is unlikely to give such permission unless he [or she] receives cogent evidence from the accused and those advising him [or her] that the admission had been made by a matter of mistake or misunderstanding.” In other words, where an admission is made, a Judge may, in a very narrow circumstance, use their discretion to set aside the admission. This discretion may only be used where withdrawing the admissions assists with establishing the truth.

[21] The B.C. Supreme Court in R. v. Basi, supra, at para. 16, adopting McWilliam’s text on evidence law, set out the basis needed to justify the withdrawal of an admission:

Once an admission is tendered and accepted by the court, it is an integral part of the record. An admission can of course be altered by "mutual consent" of the parties. Otherwise, an admission voluntarily made, ordinarily by or with the advice of counsel, is not easily disturbed.

As to withdrawal of a factual admission: "The discretion of the Court ought to be warily exercised, normally, to defeat fiction, to help establish truth, and to relieve clients of fatal mistakes by lawyers." "If it is sought to resile from them [admissions], first, the permission of the judge is required; and secondly, the judge is unlikely to give such permission unless he [or she] receives cogent evidence from the accused and those advising him [or her] that the admission had been made by a matter of mistake or misunderstanding". The discretion to allow withdrawal of an admission once made "should be exercised sparingly and cautiously".

Although a trial judge has a wide discretion to relieve a party of the strictures of an express factual admission and to require the party benefiting from the admitted fact to call evidence on the matter, regrets about a tactical decision to make an admission, a strategic decision otherwise falling within the range of reasonably competent decision-making, will rarely result in an admission being backed out of the record of the proceeding. In other words, a factual admission, even if ill-advised or improvident, cannot be simply retracted at the will of a party.

[22] In this case, there is no allegation that there is some mistake or misunderstanding that led to the admission originally being made and now, to get at the truth in this matter, the admission should be withdrawn. (R. v. Montgomery, 2016 BCCA 379 at paras. 291-301). Counsel for the applicant has simply stated (and I paraphrase) that the admission was made in haste and he can no longer, in good faith, make the admission…..even though the logs were admitted in the second trial by Mr. Lapps’ counsel at the time. This is not sufficient.

[23] In Ontario, a similar evidentiary foundation was required in R. v. Baksh, supra, at para. 106. Justice Hill rejected an attempted repudiation of admissions made by the Crown because it raised no demonstrable case of mistake or ineffective assistance of counsel (R v Baksh, supra. at para. 118. The ONCA (2008 ONCA 116, [2008] O.J. No. 538, affirmed the decision).

[24] In R v. J.S.R., 2008 ONSC 92004, [2008] O.J. No. 5626, after the jury had been picked prior to the prosecution’s opening address, defence counsel produced a list of admissions that defence was prepared to make in order to avoid witnesses having been called. One of the admissions was based on a position that had been taken by the Crown at a pre-trial conference that had subsequently been confirmed in an email by the Crown prior to the start of trial. The Crown, for the first time, maintained that she was not prepared to agree to the proposed admission. She took the position that she could not be forced to accept the admission offered by the defence.

[25] The Crown was seeking to reverse a factual position that was taken at the pre-trial proceedings. That position was confirmed in writing. The defence relied upon to its detriment. Citing section 655 and the Criminal Proceedings Rules, specifically rule 28.04(11), the court held the Crown to her previous unqualified position, stating at paragraph 46:

The administration of justice benefits from a meaningful and effective pre-trial process as that process aids in achieving the objective of fair and speedy trails. A meaningful and effective pre-trial process thus contributes to the public respect for the justice system.

[26] There is no evidence from Mr. Lapps or his counsel that the attempt to withdraw the admission is anything but strategy, tactics or second thoughts (R. v. Montgomery, supra, at paras. 291-302).

[27] Section 655 binds counsel to the pre-trial position that he took in his email on August 27th, 2018. For these reasons, the application is dismissed.

McWatt J. Released: October 1, 2018

Court File Information

Court File No.: CR-18-5-537 Date: 2018-10-01 Ontario Superior Court of Justice Her Majesty The Queen – and – Dale Lapps Ruling: McWatt J. Released: October 1, 2018