This week's top three summaries: R v K.C., 2023 BCCA 411: prior #consistent stmt, R v Marrone, 2023 ONCA 742: apprehension of #bias, and R v Bartel, 2023 ABCJ 227: #recent possession. Our firm focuses on representation in complex...
This week’s top three summaries: R v K.C., 2023 BCCA 411: prior #consistent stmt, R v Marrone, 2023 ONCA 742: apprehension of #bias, and R v Bartel, 2023 ABCJ 227: #recent possession.
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R v K.C., 2023 BCCA 411
[November 13, 2023] Prior Consistent Statements - Narrative Exception to Hearsay Used Improperly [Reasons by Fenlon J.A. with Voith and Horsman JJ.A. concurring]
AUTHOR’S NOTE: Prior consistent statements are inadmissible for the truth of their contents precisely because it is "so superficially attractive a proposition that the same story told out of court makes the in-court evidence more reliable". Yet, despite the clear rule that these statements cannot be used for the truth of their contents, they regularly become admissible under the guise of the narrative exception to hearsay. In the case of historical sexual assault allegations, there is almost routine admission of the first "disclosure" of the incident. The danger of this evidence is acute and it can often lead the trier of fact astray. Here, the judge in a judge alone trial relied on this evidence improperly to convict.
[1] The appellant was convicted of one count of sexually assaulting the complainant in 2004 contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C-46 [Code]. On appeal, the central question is whether the judge impermissibly relied on the complainant’s prior consistent statements to her parents when she disclosed the events to them in 2008, and if so, whether the curative proviso can be used to uphold the conviction.
Background
[2] At the time of the events in issue the complainant was 16 years old; she was 34 at trial. The appellant was 36 at the time of the events, and 54 at trial. He was the complainant’s hockey coach and the father of B, her best friend and teammate. It was common for the complainant to sleep over with B at the appellant’s house. The Crown alleged that the sexual touching occurred during one such sleepover. The appellant acknowledged that he had engaged in acts of sexual touching with the complainant, although he did not agree with the complainant’s descriptions of when and how the touching occurred, and maintained that all of the touching was consensual.
[3] Before describing the complainant’s and appellant’s versions of events, it is important to clarify that the Crown did not charge the appellant with sexual exploitation under s. 153(1) of the Code, which prohibits any sexual touching by a person who is in a position of trust or authority over the young person. Nor did the Crown argue that consent was vitiated by operation of law due to an abuse of a position of trust or authority, pursuant to s. 273.1(2)(c) of the Code. As a result, consent was the central issue to be determined at trial in proving the charge under s. 271.
The complainant’s evidence
[4] The complainant testified that the appellant engaged in various acts of sexual touching without her consent while she was sleeping over at B’s house the night before a playoff game in Kamloops. ...
[9] Four years later, in 2008, the complainant approached her mother and father while they were at their place of business. She said she disclosed what the appellant had done to her the night before the playoff game in Kamloops. Defence counsel objected when the complainant began to testify to this, pointing out that the fact and timing of the prior statement to her parents were admissible, but the details of that statement should not be led. The judge disagreed, holding that the content of the statement was admissible for the purpose of “explaining how she broached the subject with her father back in 2008.” The complainant then continued, relating what she told her father:
Q: [Complainant], I’m going to ask you to continue. You said, “Hey, Dad, when we were playing hockey in Kamloops.”
A: Yeah. I said, “Do you remember when we had our playoff game in Kamloops and how upset I was,” and I said, “The night before at the -- at a sleepover [the appellant] had done this to me,” and when I was explaining to him, “Do you remember the time in Kam” -- he like stopped me and he knew exactly the moment I was talking about. He knew exactly the time. He knew. Yeah. It was pretty powerful.
[13] The Crown also called the complainant’s father as a witness. He told the court that in late February 2004, he travelled to Kamloops to watch the complainant’s playoff hockey game. He said that after the game the complainant was uncharacteristically upset about losing. In describing what his daughter said to him in 2008 when she disclosed the sexual touching, he said that one of the things she said was “Dad, do you remember that trip to Kamloops? And I knew, my heart [sank] and I knew what it was.”
The appellant’s evidence
[14] The appellant admitted that he had sexually touched the complainant and that it was morally wrong to have done so given her age, the fact that she was his daughter’s friend, and that he was her coach. But he described not one, but two instances of sexual activity initiated by the complainant. The first occurred in January 2004, the night before a hockey practice in preparation for a tournament in Prince George. He testified that the complainant had come home to his house from a party early, without his daughter B. His wife had gone to pick up the complainant from the party and after returning home, he, the complainant and his wife were all watching television in the living room. At some point his wife went to bed and told the complainant to make her way to bed as well, but the complainant remained with him in the living room until B came home.
[17] The appellant said that a further act of sexual touching occurred in August 2004, when there was a going-away party for his daughter at his house and the complainant again slept over. He said he had consumed about a dozen beers that night and was intoxicated. The complainant had been drinking too. When his wife left to drive everyone home, he went into the kitchen for some water and on his way into his bedroom, the complainant followed him in. She sat down close to him on the bed, looking at him and smiling. He said he asked her, “what are we doing?” He asked her if this was their little secret, and she nodded ‘yes’. He said the complainant then stood in front of him. He had his hands on her hips and assisted her in taking off her pants. He said they then got into bed together and kissed. He rubbed her breasts and vagina and put his fingers inside her vagina. He said the sexual contact went on for about 15 minutes until he heard a noise like a car door slamming, and the complainant got up and left. He said there was no oral sex and that he thought she was consenting because she followed him into the bedroom and because she smiled when he put his hands on her hips.
The trial judge’s decision
[21] The judge provided detailed reasons for rejecting the appellant’s evidence, saying:
[98] I noted that the accused struggled in giving his evidence, particularly in cross-examination, about matters that ought to have been straightforward if he was describing what actually happened. When pressed for details about the January Encounter and indeed the August 2004 Party, he often stumbled, paused for inordinate times before answering and appeared to have difficulty answering questions on important points. ...
The judge also observed that the appellant’s evidence was inconsistent at times, with “numerous examples of the details of his version of the events changing between his direct evidence and when pressed on cross-examination.” The judge indicated that he would not recite all of the inconsistencies, but set out eight examples at para. 100 of his reasons. The judge described the appellant as “not a careful witness,” finding that he attempted to minimize his role in the sexual encounters by suggesting that the complainant was the instigator and a willing participant. He concluded that “[i]n the result, on the essential matters in dispute,” he disbelieved the appellant’s evidence: at para. 101.
[22] The judge also gave his reasons for accepting the complainant’s evidence. He described her evidence as “not perfect” but said she “gave a cogent and straightforward story” and did her best to “relay the events in a thoughtful, chronological manner” and “generally describe what she recalled occurring as precisely as she could”: at para. 107. He reviewed the inconsistencies in her evidence that had been pressed by the defence, but attributed any weaknesses in her evidence to reliability, not credibility. He concluded that the inconsistencies did not suggest she was fabricating the encounter, but rather were due to the fact that the events occurred 18 years before she testified and when she was only 16.
On appeal
[23] The appellant raises two grounds of appeal, contending the judge erred:
1. In admitting the content of the complainant’s prior consistent statement and in relying on it for the truth of its contents; ...
[24] As I conclude that the first error has been established and is dispositive of the appeal, I will not address the second error. My reasons for acceding to the first ground of appeal follow.
[25] It is helpful to return to the prior statement that the appellant identifies as the source of the judge’s error. In her evidence-in-chief, the complainant described feeling that she owed it to her parents to tell them what had happened to her because of how much she had changed and how poorly she was coping with being away at university. She testified that one day in 2007 or 2008, when she was 19, she went to their business premises and disclosed the sexual touching. In giving this evidence, she said:
A I said, “Do you remember when we had our playoff game in Kamloops and how upset I was,” and I said, “The night before at the - at a sleepover [appellant] had done this to me,” and when I was explaining to him, “Do you remember the time in Kam” - he like stopped me and he knew exactly the moment I was talking about. He knew exactly the time. He knew. Yeah. It was pretty powerful.
Q And was anyone else present at the time?
A My mom was present. I had told both of them.
Q And you said you told him that, without giving the details, you said, “He had done this to me.” Did you give any details of what he did?
A I did. I told them that he had touched me.
Q Is that - is that what you said?
A I - no, I did a full disclosure, and it was bad timing because, I mean, it was at their business, during business hours, and I – I told my mom and dad how at the sleepover, yeah, what he had done.
On cross-examination, defence counsel elicited the further detail that the complainant told her parents that she had not consented to the sexual activity with the appellant.
[26] The judge referred to this evidence when he addressed the defence position that there were substantial inconsistencies in the complainant’s testimony that caused her evidence to be neither reliable nor credible, saying:
[112] In my view, any weaknesses in [the complainant’s] evidence relate to reliability rather than credibility. I am satisfied that these inconsistencies do not suggest she was making up the January Encounter. It occurred 18 years before she testified and it would be expected that some of the events would not be as clear as they once were.
[113] On the core question of whether or not the January Encounter happened as described by [the complainant], she was steadfast in what she says happened. Her version is also corroborated by [her father’s] evidence that the Kamloops game was the end of the season for [the complainant’s] team and her reaction upon seeing [her father] in the parking lot afterwards. It is consistent with what she told [her father] at the time of the Disclosure.
[Emphasis added.]
[27] It is a well-established principle that prior consistent statements are presumptively inadmissible because they lack probative value and amount to hearsay when considered for the truth of their contents: R. v. Stirling, 2008 SCC 10 at para. 5; R. v. Gill, 2018 BCCA 275 at para. 65.
[28] There are exceptions to this principle. In the present case, the Crown relied on the “narrative as circumstantial evidence” exception. Under this exception, the statement is admitted for the limited purpose of helping the trier of fact explain how the complainant’s story was disclosed: R. v.Dinardo, 2008 SCC 24 at para. 37. However, when a prior statement is admitted under the narrative exception, it is only the fact and timing of the prior statement that are admissible for the purpose of assisting the trier of fact in understanding the sequence of events in evaluating the credibility of the witness: Dinardoat paras. 37–8. The content and details of the statement are not admissible to corroborate the witness’s trial evidence: R. v. N.P., 2021 BCCA 25 at para. 13. Similarly, the relevance of the evidence lies only in the timing of the statement, and the fact that the complainant told someone about the assault occurring. Under this exception to the hearsay rule, the details of the assault are not relevant: R. v. Brooks, 2023 BCCA 121 at para. 96. [Emphasis by PJM]
[30] Respectfully, I cannot agree with the Crown’s characterization of the statement in issue. If the complainant’s testimony had been limited to relaying that she told her parents in 2008 that the appellant had sexually assaulted her, it would have been admissible under the narrative exception. But her evidence went beyond that to include that she told her parents the appellant had assaulted her during a sleepover at his house the evening before the playoff game in Kamloops.
[31] The judge was faced with two very different versions of events. The appellant said there were two incidents, one in January and one in August 2004, neither of which occurred before the playoff game in Kamloops. It was a central component of the complainant’s evidence that there was only one incident that occurred the night before the playoff game in Kamloops. As the judge observed, the complainant was “steadfast that the sexual assault took place during the evening before the Kamloops playoff game, which anchors her memory of the date”: at para. 104.
[32] Faced with these competing versions of events, the judge relied on the content of the prior consistent statement in finding the complainant’s evidence to be credible and reliable. I repeat the critical paragraph of his judgment here for ease of reference:
[113] On the core question of whether or not the January Encounter happened as described by [the complainant], she was steadfast in what she says happened. Her version is also corroborated by [her father’s] evidence that the Kamloops game was the end of the season for [the complainant’s] team and her reaction upon seeing [her father] in the parking lot afterwards. It is consistent with what she told [her father] at the time of the Disclosure.
[Emphasis added.]
[33] There is no ambiguity in the judge’s reasoning. He relied on what the complainant said to her mother and father in 2008 to corroborate her evidence on the core question of whether or not the encounter happened as she described it.
[34] It is because it is so superficially attractive a proposition that the same story told out of court makes the in-court evidence more reliable, that the rule against the admissibility of such statements exists. I agree with the appellant that in the circumstances of this case, the content concerning the timing of the assault should not have been admitted. The judge made a clear error of law in relying on it to corroborate the complainant’s testimony. [Emphasis by PJM]
Disposition
R v Marrone, 2023 ONCA 742
[November 9, 2023] Reasonable Apprehension of Bias: Criticism of Defence Counsel [Reasons by B. Zarnett J.A., with Janet Simmons and David M. Paciocco JJ.A. concurring]
AUTHOR’S NOTE: Imputing sharp practice motivations to defence counsel is a dangerous road for a judge to undertake if they want their decision to stand. The appearance of impartiality can be readily discarded when a judge begins to comment about the motivations of defence counsel for doing or not doing a thing in a criminal trial. Often, reference to the thing done should suffice without examination of the motivations behind it. Here, defence counsel sought to advance a defence by taking advantage of an error made by the Crown in the filing of an expert report. The expert report discussed conclusions about crack cocaine when it was powder cocaine that was seized. There is nothing ethically wrong with defence counsel attempting to get maximum benefit for the accused of such an error. In fact, Defence counsel have an obligation to fearlessly advance every issue available to the defence and cannot be faulted for doing so. Here, a gut reaction by the court that what the defence was doing was somehow unfair to the prosecutor caused the court to discard the appearance of impartiality when the judge imputed to the Defence they knew the report was a simple mistake and the expert meant to opine about powder cocaine.
I. OVERVIEW
[1] In November 2012, the appellant was arrested and charged with possession, for the purpose of trafficking, of 17.07 grams of powder cocaine. The powder cocaine that formed the subject of this charge was seized by police during a search of the appellant’s residence and had a street value of about $1,700. The appellant was also charged with possession of proceeds of crime ($370 that was found on his person at the time of his arrest), and possession of marijuana that was also found when his residence was searched.
[3] On the first day of trial, an issue arose about a report of an expert witness for the Crown. This issue came to occupy the next three trial days and led to a failed mistrial application, the discharge by the appellant of his original defence counsel, and an adjournment to permit new counsel to be retained. The trial resumed in June of 2016, with the appellant represented by new counsel, and continued to conclusion. The appellant was acquitted on the proceeds of crime count and convicted of possession of cocaine for the purpose of trafficking. The trial judge imposed a sentence on that count of 10 months imprisonment, followed by 12 months probation, and made certain ancillary orders.[1]
[9] The appellant’s third ground of appeal is that the trial judge erred in not recusing himself and granting a mistrial when requested to do so during the Crown’s case. Although actual bias is not suggested, the appellant argues that a reasonable apprehension of bias arose from the way the trial judge responded to, and commented on, positions taken by original defence counsel about the Crown’s expert’s report. This ground of appeal requires careful examination of the exchanges between the trial judge and counsel, and other comments of the trial judge, on a matter that dominated several days of trial.
[10] Prior to trial, the Crown served an expert’s report. Although the possession for the purpose of trafficking charge involved powder cocaine, the report contained certain references to crack cocaine, and its ultimate paragraph stated: “It is my opinion that the crack cocaine found in the residence of [the appellant] is consistent with possession of cocaine for the purpose of trafficking” (emphasis added). Counsel did not discuss, prior to trial, the significance of the report’s references to crack cocaine, and on the morning of the first day of trial original defence counsel told Crown counsel that she conceded the contents of the report and thus the expertise of its author with respect to its contents. After the expert began to testify later that day, original defence counsel took the position that because of the report’s conclusion about, and other references to, crack cocaine (not powder cocaine), it did not constitute compliance with the disclosure obligations imposed by s. 657.3(3)(b) of the Criminal Code if the Crown intended the expert to testify about powder cocaine. Crown counsel took the position that the report, although “more crack heavy than… powder cocaine heavy”, was still sufficient.
[11] In the course of exchanges with counsel and rulings the trial judge made following the emergence of that issue, the trial judge repeatedly characterized original defence counsel’s conduct from the time of the preliminary hearing through to the opening of the trial as a less than forthright ? in effect a dishonest ? attempt to intentionally lull the Crown into a false sense of security about the expert’s evidence, and then to somehow take advantage of that. This was not only unjustified on the record, it was not an assertion that the Crown had advanced. Moreover, the trial judge repeatedly expressed the view that references in the expert’s report that counsel relied on for her position were an obvious mistake by the expert, without the Crown having made that suggestion and before the trial judge himself elicited that explanation from the expert. As well, the trial judge asserted that original defence counsel had misled him about the contents of the report, and in so doing characterized advocacy for a position in favour of the appellant as intentional wrongdoing.
[12] Criticism of counsel is not automatically, or even easily, equated with an appearance of bias against the client. But a reasonable apprehension of bias may arise when a judge makes criticisms of one side’s counsel in a way that a reasonable observer would perceive to be a predisposition to the other side or as the judge stepping into the arena instead of acting as a neutral arbiter. [PJM Emphasis]
[13] While I emphasize that actual bias is not shown or even suggested, I reluctantly conclude that the trial lost the fundamental appearance of fairness it required and therefore this ground of appeal must succeed. Since the existence of a reasonable apprehension of bias taints the entire proceeding, and is not cured by the correctness of the ultimate result, there is no alternative other than to order a new trial[2].
II. ANALYSIS
(3) The Reasonable Apprehension of Bias Ground of Appeal
(b) The Procedural Context for the Expert Report Issue
[48] Since the Crown intended to call expert evidence from Det. Lafleur, s. 657.3(3)(b) of the Code required it to deliver, within a reasonable period before trial, a copy of her report, or if no report was prepared, a summary of the opinion anticipated to be given by her and the grounds on which she based it. Although the Code does not specify what the report is required to disclose, a reasonable reading of the provision suggests that it cannot be less than what must be disclosed if there is no report (a summary of the opinion anticipated to be given by the expert, and the grounds on which it is based).
[49] If the requirements of s. 657.3(3)(b) of the Code are not met, s. 657.3(4) provides that the court, if requested, is to grant specific relief. That relief is an adjournment to allow time to prepare for cross-examination of the expert (although the length of the adjournment is not specified), ordering compliance with the requirement for a report or summary, and ordering witnesses to be recalled to give testimony related to that of the expert witness unless the court considers it inappropriate to do so.
(c) The Exchanges and The Rulings
(i) Det. Lafleur’s First Report
[51] In August 2013, the Crown provided original defence counsel with a report (the “first report”) of Det. Lafleur. Although it was the subject of much debate before the trial judge, who was ultimately given a copy of it, the first report was not made an exhibit (lettered or numbered) at trial and it was not part of the appeal record. We are reliant for its contents on the descriptions of it in the trial record.
(ii) The Issue Arises on the First Day of Trial
[52] On the first day of trial, original defence counsel told Crown counsel that she “conceded the contents” of the first report. Later that day, Crown counsel called Det. Lafleur as a witness. At the outset of her examination, Crown counsel stated that he believed “the defence is conceding Ms. Lafleur is an expert”. Original defence counsel responded: “it is inherent in the fact that I conceded the contents of the report that she would be [an] expert.”
[53] After Det. Lafleur was asked some introductory questions, the trial judge asked for clarification of her area of expertise. Crown counsel submitted the area of expertise was “cocaine prices, cocaine uses, the difference between simple possession of cocaine and possession for the purpose of trafficking, indicia of use, and indicia of trafficking”.
[54] Original defence counsel was asked if she agreed. She said she did only in part. She then advanced what was her fundamental point. The first report expressed an opinion about crack cocaine, not powder cocaine. She stated that in:
[V]arious areas of [the first report] … [t]here is no reference to anything above and beyond crack cocaine. There is no explanation with respect to, for example, rate of consumption of cocaine hydrochloride. So I’m not content that this officer gives any testimony as pertains to cocaine hydrochloride, which is the subject of this trial, because there is nothing in [the first report] that speaks to it. I can be even more precise if Your Honour needs that. I’m specifically speaking of rates of consumption … affects of cocaine … street value, all [of] which form the basis for conclusion and opinion.
[55] The trial judge asked original defence counsel if the Crown had been alerted to a position that she did not concede the witness’ expertise in the field of powder cocaine. She responded that they had not had that discussion, explaining that “[t]here is nothing in her expert report that suggests she has an opinion about it…”.
[56] The trial judge enquired about whether the issue was raised at a pre-trial conference. The pre-trial conference form indicated that admissibility of intended Crown expert evidence would be contested by the defence on the basis that the witness was not an expert.
[58] Crown counsel responded by stating that defence counsel’s position was “at the same time ... this expert is an expert and also that she’s not…”. He proposed simply proceeding with a voir dire to qualify the expert “as we would have if she hadn’t conceded”. Original defence counsel replied that “if she is qualified by this honourable court to testify with respect to cocaine hydrochloride, she can’t simply give viva voceevidence in the absence of an expert report which requires 30 days notice”.
[59] Crown counsel then stated that the first report had many references to cocaine as well as crack cocaine, therefore he was “not sure she’s accurate about that”, that the first report was provided some time ago, and that original defence counsel “can’t be surprised by what’s going to be said”. To this, original defence counsel responded that it was “the Crown’s case to prove. It’s not up to the defence to call the Crown Attorney and say, ‘Hey, by the way, your expert report does not include the substance which is the subject of this litigation’. ... So I’m conceding the contents of this report. In fact, my submission is he [Crown counsel] does not have evidence to present to you.”
[60] The entire discussion above took place without the trial judge having been provided with the first report. When court resumed after a break, discussion about the first report continued, again without the trial judge having a copy of it. Crown counsel acknowledged that “it’s certainly true that the report is more crack heavy than cocaine heavy, powder cocaine heavy”, but he maintained that it was sufficient to “permit the other parties to inform themselves about that area of expertise”. Original defence counsel re-iterated that the “entire conclusion is about crack cocaine. There’s no, there’s nothing in this report about powder cocaine…”.
[61] ... Crown counsel observed that there would likely be a request for an adjournment upon the delivery of a new report, to which the trial judge responded that he did not want to adjourn the trial and the length of any requested adjournment would be up to him. Crown counsel expressed hesitation about whether he could have a new report by the next day or whether he would have to find someone else to prepare a report. After the trial judge pointed out that Det. Lafleur was “sitting right here” and had been described by the Crown as an expert in “cocaine generally”, he asked why another expert would be needed. After speaking to Det. Lafleur, Crown counsel indicated a new report would be ready the next day.
(iii) The Issue Develops on the Second Day of Trial
[62] At the opening of the second day of trial, Crown counsel advised the trial judge that he had served a new expert report of Det. Lafleur (the “new report”), and that the defence would be requesting an adjournment. When asked how different the new report was from the first report, Crown counsel stated it was “[n]ot a whole lot different” but went on to say that “[t]here were many references to crack cocaine in the original report, which had been clarified…”. Original defence counsel disagreed, stating that, in contrast to the new report, there “was nothing in the [first report] that opines or concludes anything about cocaine hydrochloride”.
[63] The trial judge asked to see both reports, as he was being told different things about their content. Original defence counsel offered up the page of the first report that had its conclusion, indicating that she was prepared to provide the whole report but did not have a clean copy with her at the time. The trial judge was critical of counsel for saying that she was prepared to provide the whole report but just offering up one page, and brushed aside her statements that it was the Crown who had created the problem and who was not answering the question about the differences in the reports.
[64] The trial judge stated:
No. In all fairness, we are here because you chose to play cute, and you chose to take the position … without telling anyone that you were keeping your fingers crossed behind your back saying, ‘I concede the expertise of the witness, and I have no issue about the contents of the report … and only because I posed the question [about the witness’ area of expertise] does it come out that that’s not your position at all.
[65] The trial judge went on to say that original defence counsel had told Crown counsel that he did not have to worry about qualifying his expert, that she conceded she’s an expert, only to then “find out that you have a little subtle position with respect to her expertise. That’s why we’re here”.
[66] Original defence counsel maintained that there was nothing subtle about the difference between crack cocaine and powder cocaine, and that the first report only opined about crack cocaine.
[67] The trial judge was given both reports, and a discussion ensued between original defence counsel and the trial judge about the first report. Original defence counsel drew the trial judge’s attention to the ultimate conclusion on page 16 of the first report: “It is my opinion that the crack cocaine found in the residence of [the appellant] is consistent with possession of cocaine for the purpose of trafficking.” The trial judge responded that this was “[c]learly a mistake” because original defence counsel knew the expert was dealing with what was found at the appellant’s residence, and the evidence was that it was powder cocaine.
[68] Original defence counsel pointed out the differences between crack and powder cocaine, including some she had elicited in the examination of prior witnesses. She returned to the absence of any opinion about powder cocaine in the first report and asserted that such an opinion was provided for the first time in the new report that she had just received. She asked for time to review the new report with an expert, saying she had three she could approach, but did not believe that could be accomplished that afternoon.
[69] The trial judge responded by saying:
Well, look, you chose to play the game the way you did … [a]nd keep your cards very close to your vest … chose to rely on an obvious mistake in a report where the word ‘crack’ was inserted in front of the word, ‘cocaine’ when you know it’s a case about powdered cocaine. You live by the sword, you die by the sword. You must have been aware of the possibility that what has happen[ed] … would happen … The mistake would be corrected, and I would expect that a responsible counsel, if they wanted to review a report, such as this, would already have done so and say, ‘Look, it’s obvious that there’s just a mistake but I’m going to try and trick the Crown and lull the Crown into a false sense of security, but if I’m not allowed to do that, what’s your opinion if you take out the word, ‘crack’ from in front of the [word] ‘cocaine’ in the conclusion?’…or you would have made arrangements to have somebody available on short notice to allow you to consult that person.
[70] When original defence counsel referred to the burden on the Crown to provide an expert report dealing with powder cocaine, the trial judge expressed the view that the Crown had done that in the first report, suggesting that original defence counsel was focussing on one word [crack] in one paragraph of the first report as opposed to considering the “entire contents of the report”. He pointed to the first page of the first report that stated: “Noted item C: 17.07 grams of powdered cocaine in the false bottom of a can located on the top of the stove” and asked how it could be that that was not a reference to what was seized from the appellant’s residence.
[71] Original defence counsel responded by pointing out a number of other places in the first report where crack cocaine was referred to, including the discussion of the “Rate of Consumption” (which only addressed crack cocaine), “Effects of Cocaine” (in which the expert referred only to her conversations with crack cocaine users), “Street Value” (which was discussed under a heading “Crack Cocaine”), and “Quantity” in which the expert said “[t]ypically, I would only expect to find a crack cocaine user”, as well as the ultimate conclusion which was about crack cocaine. She also referred to the expert in one place of the first report having described the quantity of drugs seized as 22 grams, not 17.07. She argued that this “isn’t about taking advantage of her accident[al]ly using the word, “crack” in her final conclusion … all throughout this [first] report, she’s opining about the rate of consumption, the pricing, and her experience when speaking to users of crack cocaine, and she refers repeatedly to the use of crack cocaine, which is not the subject of this trial….Now her new report is tailored to speak to the rate of consumption, the pricing, and her opinion about powder.”
[73] The trial judge asked original defence counsel what she was requesting and she responded that she wanted a 30 day adjournment, relying on s. 657.3(3) of the Code, so that she could secure an expert, which she had not done because there had not previously been the need. The trial judge asked the Crown to call Det. Lafleur, indicating he would rule on the adjournment request after her examination-in-chief.
[74] After Crown counsel examined Det. Lafleur about her qualifications, original defence counsel declined to cross-examine her on that topic “on today’s date”. The trial judge qualified Det. Lafleur as an expert in the field of cocaine prices, uses, packaging, difference between use and trafficking of cocaine and indicia of trafficking in cocaine.
[75] Crown counsel then elicited Det. Lafleur’s opinions on a number of matters including: an average user of powder cocaine would use up to 3.5 grams in a day; a person with possession of 17.07 grams of powder cocaine is indicative of trafficking, not personal use; baggies and plastic wrapping are types of packaging used for small amounts of powder cocaine; playing cards found close to powder cocaine could be used to cut it; the value of 17.07 grams of powder cocaine was $1,700; and a starter pistol, weigh scale and frequent short visits by motor vehicles to the residence where powder cocaine was found were indicative of trafficking.
[76] Crown counsel did not ask Det. Lafleur anything about her first report. After Crown counsel completed his questions, the trial judge asked Det. Lafleur about it. Specifically, he asked her why she concluded that “the crack cocaine found in the residence of [the appellant] is consistent with possession of cocaine for the purpose of trafficking.” Det. Lafleur responded that it was an error, that crack cocaine and powder cocaine were different, that it “could have been a cut and paste error”. She also stated that her references in the first report to 22 grams, and to the typical amount a crack cocaine user would possess, were also errors. Although she said she noted the errors after “reading it over”, she was not questioned on when that occurred.
[77] The trial judge then heard submissions about the defence request to adjourn to consult an expert to cross-examine. The thrust of original defence counsel’s submission was that the first report did not comply with s. 657.3(3) of the Code and the new report was just received, necessitating time to consult an expert. Original defence counsel responded to the trial judge’s question about why she did not consult an expert on the basis that the reference in the first report to crack cocaine might be a mistake by saying that it would have been difficult to convince Legal Aid to provide funding to obtain expert input on an opinion that had not been given by speculating that its absence was a mistake.
[78] The trial judge was critical of original defence counsel’s submission that the court should be concerned about why the Crown did not realize their report was inaccurate. He responded: “Maybe because you told them they didn’t have anything to worry about. You conceded the expertise of the expert … the content of the report”. And he was critical of her submission that because the first report opined about crack cocaine “it had nothing to do with what was before the court, which is my job”. He responded: “Would you stop saying it had nothing to do with the case before the court. It had a couple of little obvious errors, but you decided to play the game and hope you could catch the Crown with his proverbial pants down. It was clear and obvious that the report was speaking to the 17.07 grams of powdered cocaine that were seized…”.
[79] The trial judge went on to describe the submission that original defence counsel had made the previous day, on the basis of which he gave the Crown an opportunity to deliver a new report, as a “misrepresentation”. Original defence counsel sought to clarify that she had submitted that the conclusion in the first report had nothing to do with powder cocaine, but the trial judge insisted she had said “the report has nothing to do with powdered cocaine” (emphasis added). He later added that she had said the first report “did not speak to anything about powdered cocaine.” The trial judge also said that original defence counsel knew, from the minute she saw the reference to crack cocaine in the conclusion of the first report, that “it was a mistake”.
[80] After hearing from the Crown in opposition to any adjournment, the trial judge granted an adjournment of effectively one day. In his reasons, he stated that while the first report did make reference to crack cocaine, a review of the entirety of that report made it clear that Det. Lafleur would be giving her opinion concerning the purpose of possession of 17.07 grams of powder cocaine found in the appellant’s residence. He said that defence counsel had seized on the word “crack” in the conclusion of the first report, that it was clear and obvious this was a careless error on the part of Det. Lafleur, and that it was unreasonable for defence counsel to rely on it.
[81] The trial judge stated that while he did not excuse the Crown for not detecting “this obvious error”, he noted that original defence counsel conceded the purpose of the possession for the preliminary inquiry, represented at the pre-trial that the only expert witness issue was whether the expert could be qualified, and then conceded expertise and the content of the first report “sometime in advance of trial”. He then stated: “I conclude that these were conscious decisions made in the hope that the errors contained in [Det.] Lafleur’s report would not be detected until it was too late”.
(iv) The Third Day of Trial —The Mistrial Motion
[82] When the trial resumed after the one-day adjournment, original defence counsel moved for a mistrial, asserting there was a reasonable apprehension of bias on the part of the trial judge. She relied on the trial judge’s statements that she had misled the court, lulled the Crown, “played cute” (which she said could be construed as a “gender specific remark”), and failed to interview a witness.
[83] The trial judge dismissed the motion. To address the complaint about his statement that original defence counsel had misled the court, which he considered to be at the heart of the motion, he referred to two parts of the first report that he said referenced powder cocaine expressly (one referring to the 17.07 grams seized at the appellant’s residence, and another which he called, without detail, an entire section dealing with cocaine hydrochloride). He then stated that throughout the report the author distinguished between crack cocaine and cocaine, and expressed the view that any unmodified reference to cocaine was to cocaine hydrochloride. He then referred to certain parts of the report about drug paraphernalia and the manner of consumption that mentioned both crack cocaine and powder cocaine. He referred to page 13 of the report that contained an opinion that the appellant was in possession of cocaine for the purpose of trafficking and a reference to a quantity of 17.07 grams of cocaine on the same page, concluding those references must be to powder cocaine.
[84] He then referred to parts of the first report that described the cocaine that was seized as crack cocaine, stated that it did so erroneously, and said the ultimate conclusion in the last sentence of the first report was the “most egregious example of that error.” He did not refer to any of the other parts of the first report that original defence counsel had cited as indicating that the conclusions about rates of consumption, the pricing, and the author’s experience when speaking to users, were only about crack cocaine. He did not refer to the Crown’s concessions that the first report was “more crack heavy than…powder cocaine heavy”, or that it contained “many references to crack”. He repeated his conclusion, in limiting an adjournment to one day, that the reference in the first report to crack cocaine was a clear and obvious error.
[85] The trial judge concluded on the misrepresentation issue by saying “I will leave it to another court to decide if I was in error in stating that [original defence counsel] misled the court when she stated that there was no reference [in the first report] to cocaine hydrochloride.”
[86] He then briefly addressed the other grounds. He said that the comment about lulling was based on his surprise that original defence counsel would admit the first report and the qualifications of the expert rather than stating from the outset that the expert was not qualified and the content of the
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