Small Claims Court

Under section 23 of the Courts of Justice Act the Small Claims Court has a limited jurisdiction.  The CJA provides  Small Claims Court has jurisdiction in any action for the payment of money or for the recovery of possession of personal property up to a value of $25,000.  The recent Newfound decision in Baker v Harmina, 2018 NLCA 15 deals with a similar jurisdiction in a curious case involving the ownership of a dog. The Court of Appeal held the small claims court could not deal with the issue of a constructive trust. 

In Baker a couple had a dog Mya which they looked after together for a couple of years.  Mya bonded with both parties but after the couple split up there was litigation over who was entitled to possession of Mya. The case started in the Newfoundland small claims court but was appealed all the way to the Court of Appeal of Newfoundland and Labrador. The case has an interesting analysis of the right to possession of a pet but for immediate purposes the comments of the court on small claims jurisdiction are most relevant. 

The Court of Appeal ruled that the small claims court was unable to rule on the issue of a constructive trust. Basically the claim was for an order that Mya be shared between the parties and the Court ruled such order was beyond the power of the small claims court. The Court held, in para 33:

"Even if a constructive trust was appropriate, the small claims judge had no jurisdiction to impose one.  A constructive trust is not an order for "debt", "damages", "specific performance of an agreement", or the "recovery of personal property" under section 3(1) of the Small Claims Act, RSNL 1990, c. S-16.  Instead, it is an equitable remedy changing the ownership of personal property." 

Ontario caselaw suggests that the small claims court does have equitable jurisdiction but only so as to grant a money judgment or return of personal property. Grover v Hodgins, 2011 ONCA 72 (CanLII), 103 O.R. (3d) 721, a decision of the Court of Appeal for Ontario concluded that the Small Claims Court does have jurisdiction to award legal or equitable relief where the relief requested is a monetary payment under the limit of $25,000 or the return of personal property valued within that limit. 

The Newfoundland court also found the small claims court could not adjudicate the matter as it trenched on division of property in a matrimonial case.  The Court held, at para 34:

"If the Small Claims Act did authorize a constructive trust, I would have serious doubts about its constitutionality.  In Re: B.C. Family Relations Act, 1982 CanLII 155 (SCC), [1982] 1 S.C.R. 62 at 88–89, Laskin C.J.C., for the majority on this point, struck down a provision allowing a provincial court to grant exclusive possession of a matrimonial home because "adjudicating on proprietary rights" and "the disposition of family assets" is "more conformable to [the jurisdiction] exercised and exercisable by a s. 96 [superior] court than that which may be vested in a Provincial Court"."

Some disputes between couples living together can be dealt with in Small Claims Court but division of family property - and Mya was such - must be dealt with by a superior court: Matteau v. Johnson, 2012 ONSC 1179. 

The take away is that complex orders arising in equity, if available at all, must be sought in superior court. 

Trudeau right to comment on jury selection

Neither the Prime Minister nor Justice Minister Jody Wilson-Raybould made a specific comment on whether the Gerald Stanley case was rightly decided.

But they did say that the way juries are assembled in Canada can lead to a perception of partiality. Recognizing that and taking steps to revise the jury system to make sure it is, and is seen to be, impartial is exactly what elected officials are supposed to do. Taking lessons from cases to improve the justice system is a good thing.

Gerald Stanley has been acquitted and the Saskatchewan Minister of Justice and Attorney General will decide whether to appeal. The appeal, if heard, will be decided on the law as it existed when Gerald Stanley was tried. But for future cases the law can be changed.

Changes to make Canadians confident the jury system is fair should be encouraged. Justice must be seen to be done.

Guilty Plea Not Always Leading to Mitigation of Sentence

R. v. F.H.L., 2018 ONCA 83:

[22] A plea of guilt does not entitle an offender to a set standard of mitigation. The amount of credit a guilty plea attracts will vary in each case. In R. v. Faulds (1994), 1994 CanLII 770 (ON CA), 20 O.R. (3d) 13 (C.A.), at para. 14, this court held that "[t]he effect of a guilty plea in setting the appropriate sentence will vary with the circumstances of each case. In some cases, a guilty plea is a demonstration of remorse and a positive first step towards rehabilitation. In other cases, a guilty plea is simply a recognition of the inevitable"; see also R. v. Carreira, 2015 ONCA 639 (CanLII), 337 O.A.C. 396, at para. 15.

Limits on Summary Judgment? Lesenko v. Guerette, 2017 ONCA 522

[30]        Used appropriately, summary judgment motions are an important tool for enhancing access to justice and achieving proportionate, timely and cost-effective adjudication: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. In my view, this motion for summary judgment was premature and should not have been brought until the positions of the parties and the issues were well defined. It was unclear from the pleadings and submissions whether the respondent's claim sounded in contract or unjust enrichment. Further, as noted earlier, the appellants had indicated that their pleading required amendment with respect to the payment they were prepared to make. Moreover, the legal basis for the payment remains unclear. Faced with such a motion, where the record is clearly inadequate, a judge should be reluctant to attempt to resolve the case. Substantial costs are thereby incurred, and further delay caused, with little being achieved. As stated in Baywood, at para. 45, "sometimes … it will simply not be possible to salvage something dispositive from an expensive and time-consuming, but eventually abortive, summary judgment process."

 

 

 

 

Expert Evidence

 Bruff-Murphy v. Gunawardena, 2017 ONCA 502:

 

[34]       In White Burgess, a decision released shortly before the judgment under appeal, the Supreme Court of Canada provided clarity and guidance regarding challenges to experts on the basis of bias and lack of independence. Cromwell J., writing for the court, stated at para. 19 that the basic structure for the law relating to the admissibility of expert evidence has two main components.

[35]       The first component requires the court to consider the four traditional "threshold requirements" for the admissibility of the evidence established in R. v. Mohan, [1994] 2 SCR 9: (i) relevance; (ii) necessity in assisting the trier of fact; (iii) absence of an exclusionary rule; and (iv) the need for the expert to be properly qualified.

[36]       The second component is a "discretionary gatekeeping step" where "the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks": para. 24. It is a cost-benefit analysis under which the court must determine whether the expert evidence should be admitted because its probative value outweighs its prejudicial effect.

[37]       The analysis under the second component is best thought of as a specific application of the court's general residual discretion to exclude evidence whose prejudicial effect exceeds its probative value: R. v. Bingley, 2017 SCC 12, 407 D.L.R. (4th) 384, at para. 16. As Charron J.A. wrote in R. v. K. (A.) (1999), 45 O.R. (3d) 641 (C.A.), at para. 76, application for leave quashed, [2000] S.C.C.A. No. 16: "The balancing process which lies at the core of the determination of the admissibility of this kind of evidence is not unique to expert opinion evidence. It essentially underlies all our rules of evidence." In White Burgess, Cromwell J. referenced Mohan and made the same point at paras. 19 and 20:

Mohan also underlined the important role of trial judges in assessing whether otherwise admissible expert evidence should be excluded because its probative value was overborne by its prejudicial effect — a residual discretion to exclude evidence based on a cost-benefit analysis: p. 21.

…

The reasons in Mohan engaged in a cost-benefit analysis with respect to particular elements of the four threshold requirements, but they also noted that the cost-benefit analysis could be an aspect of exercising the overall discretion to exclude evidence whose probative value does not justify its admission in light of its potentially prejudicial effects: p. 21.

[38]       Cromwell J. further explained that lack of independence or impartiality on the part of an expert witness goes to the admissibility of the witness's testimony, not just to its weight: para. 40. Specifically, in the governing framework for admissibility, the court should consider an expert's potential bias when determining whether the expert is properly qualified at the initial threshold inquiry: para. 53.

[39]       However, he added that bias should also be considered when the court exercises its gatekeeping exclusionary discretion, writing at para. 54:

Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan which I have discussed earlier, the judge must still take concerns about the expert's independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence. [Emphasis added.]

In the overview of his discussion of the admissibility of expert opinion evidence, he instructed at para. 34 that:

[A] proposed expert's independence and impartiality go to admissibility and not simply to weight and there is a threshold admissibility requirement in relation to this duty. Once that threshold is met, remaining concerns about the expert's compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role. [Emphasis added.]

[40]       In the present case, the trial judge cited White Burgess and appears to have relied upon Cromwell J.'s statement that in the threshold inquiry it would be quite rare for a proposed expert's evidence to be ruled inadmissible. As Cromwell J. noted at para. 49, all that needs to be established at that stage is whether the expert is "able and willing to carry out his or her primary duty to the court." The trial judge concluded that Dr. Bail met this rather low threshold requirement.

[41]       That was a discretionary decision, which is entitled to deference from this court: R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 248. Another judge might well have concluded that Dr. Bail failed to meet even this low threshold test. I do not need to decide whether the trial judge erred on this point, however, because he clearly erred in principle in failing to proceed to the next step of the analysis – consideration of the cost-benefit analysis in Dr. Bail's testimony. The trial judge did not reference this second component of his discretionary gatekeeper role. To the contrary, he appears to have believed that he was obliged to qualify Dr. Bail once he concluded that the witness met the initial Mohan threshold. There is, therefore, no decision to defer to and it falls to this court to conduct the second part of the analysis.

 

 

 

 

 

Supreme Court Doubles Down on Jordan

R. v. Cody, 2017 SCC 31:

                    Constitutional law — Charter of Rights  — Right to be tried within a reasonable time — Pre‑Jordan delay of more than five years between charges and anticipated end of trial — Whether accused's right to be tried within reasonable time under s. 11 (b) of Canadian Charter of Rights and Freedoms  infringed — Framework for determining s. 11 (b) infringement set out in Jordan applied.

 

                    C was charged with drugs and weapons offences on January 12, 2010. His trial was scheduled to conclude on January 30, 2015. Before the commencement of his trial, C brought an application under s. 11 (b) of the Charter , seeking a stay of proceedings due to the delay. Because the application pre‑dated the release of R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the trial judge applied the former framework set out in R. v. Morin, [1992] 1 S.C.R. 771. He granted the application and stayed the proceedings. A majority of the Court of Appeal applied the Jordan framework and allowed the appeal, set aside the stay of proceedings and remitted the matter for trial.

 

                    Held:  The appeal should be allowed and the stay of proceedings restored.

 

                    The delay in this case was unreasonable and therefore, C's right under s. 11 (b) of the Charter  was infringed. The Court of Appeal erred in its application of Jordan. From the time C was charged until his five‑day trial was scheduled to begin, fully five years passed. The Crown, the defence and the system each contributed to that delay. Under the Jordan framework, every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person's right to a trial within a reasonable time. This framework now governs the s. 11 (b) analysis and, like any of this Court's precedents, it must be followed and it cannot be lightly discarded or overruled. Properly applied, this framework provides sufficient flexibility and accounts for the transitional period of time that is required for the criminal justice system to adapt.

 

                    After the total delay from the charge to the actual or anticipated end of trial is calculated under the Jordan framework, delay attributable to the defence must be subtracted. Defence delay is divided into two components: delay waived by the defence and delay caused by defence conduct. The only deductible defence delay under the latter component is that which is solely or directly caused by the accused person and flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. Illegitimacy in this context does not necessarily amount to professional or ethical misconduct, but instead takes its meaning from the culture change demanded in Jordan. The determination of whether defence conduct is legitimate is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

 

                    Beyond a retrospective accounting of delay, a proactive approach is required from all participants in the justice system to prevent and minimize delay. Trial judges should suggest ways to improve efficiency, use their case management powers and not hesitate to summarily dismiss applications and requests the moment it becomes apparent they are frivolous.

 

                    After defence delay has been deducted, the net delay must be compared to the applicable presumptive ceiling set out in Jordan. If the net delay exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances, which fall into two categories: discrete events and particularly complex cases. Discrete events, like defence delay, result in quantitative deductions of particular periods of time. However, case complexity requires a qualitative assessment and cannot be used to deduct specific periods of delay. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. The delay caused by a single isolated step that has features of complexity should not be deducted under this category.

 

                    Transitional considerations may be taken into account as a third form of exceptional circumstances where the case was already in the system when Jordan was decided. Like case complexity, the transitional exceptional circumstance assessment involves a qualitative exercise. The exceptionality of the "transitional exceptional circumstance" does not lie in the rarity of its application, but rather in its temporary justification of delay that exceeds the ceiling based on the parties' reasonable reliance on the law as it previously existed. The parties' general level of diligence, the seriousness of the offence and the absence of prejudice are all factors that should be taken into consideration, as appropriate in the circumstances.

 

                    In this case, the total delay was approximately 60.5 months, from which the delay waived by C should be deducted (13 months). Then, two periods of time should be deducted as defence delay: the delay resulting from C's first change of counsel (1 month) and the delay resulting from C's recusal application (2.5 months). After accounting for these deductions, the delay is 44 months, which exceeds the 30‑month ceiling set out in Jordan and therefore, is presumptively unreasonable.

 

                    With respect to exceptional circumstances, the following delays should be deducted as discrete events: the appointment of C's former counsel to the bench (4.5 months) and part of the delay flowing from the McNeil disclosure issue that arose (3 months). The net delay is therefore 36.5 months. Despite the voluminous disclosure, this does not qualify as a particularly complex case.

 

                    In light of the trial judge's findings of real and substantial actual prejudice and that C's conduct was not inconsistent with the desire for a timely trial, the Crown cannot show that the net delay was justified based on its reliance on the previous state of the law. To the contrary, the trial judge's findings under the Morin framework strengthen the case for a stay of proceedings. Where a balancing of factors under that framework would have weighed in favour of a stay, the Crown will rarely, if ever, be successful in justifying the delay as a transitional exceptional circumstance under the Jordan framework.

 

 

 

 

 

Jordan analysis for Charter delay applications

R. v. Islam, 2017 ONCJ 335 is a useful case for POA prosecutions. 

Some take aways include:

S11(b) Jordan analysis applies to POA matters. 

Time runs on Part 1 POA prosecutions from date of charge and not date defendant took some step - that seems obvious but was argued. 

Cases are not argued well and the parties should prepare properly and be concise - 

"43.         The court also ventures to state that part of the issue with regard to delay in this case rests with the conduct of this case by the respondent and the often irreverent response and caustic and adversarial behavior of the applicant, who would like to avail himself of his status as a law student and his knowledge of the law, while at the same time relying on the fact that he is a self-represented defendant who is not familiar with trial procedure.  This case should never have taken the time it has taken to get to today's date.  While the defendant's status has not fared in the court's analysis of the facts, neither side has applied a systematic analysis of Jordan nor followed the test set out in Jordan.  Rather both sides have demonstrated a lack of knowledge of this case and have not pro-offered relevant case law or any case law for that matter, as was the situation with regard to the respondent.  It is not enough for the applicant to submit cases to the court without showing the court how these cases apply to our given fact situation.  It is incumbent upon anyone making an application before any court, to make the argument as to why the court should grant the application or relief that is being sought and make it in a relevant and succinct manner."

Important Bail Case from Supreme Court of Canada

R. v. Antic (June 1), 2017 SCC 27 (S.C.C.)

67 Therefore, the following principles and guidelines should be adhered to when applying the bail provisions in a contested hearing:

(a)    Accused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional right to bail.

(b)   Section 11(e) guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms.

(c)    Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1).

(d)   The ladder principle articulates the manner in which alternative forms of release are to be imposed. According to it, "release is favoured at the earliest reasonable opportunity and, having regard to the [statutory criteria for detention], on the least onerous grounds": Anoussis, at para. 23. This principle must be adhered to strictly.

(e)    If the Crown proposes an alternative form of release, it must show why this form is necessary. The more restrictive the form of release, the greater the burden on the accused. Thus, a justice of the peace or a judge cannot impose a more restrictive form of release unless the Crown has shown it to be necessary having regard to the statutory criteria for detention.

(f)    Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a justice or a judge to order a more restrictive form of release without justifying the decision to reject the less onerous forms.

(g)   A recognizance with sureties is one of the most onerous forms of release.  A surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate.

(h)   It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their release. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Thus, under s. 515(2)(d) or 515(2)(e), cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable. 

(i)     When such exceptional circumstances exist and cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should not be beyond the readily available means of the accused and his or her sureties. As a corollary to this, the justice or judge is under a positive obligation, when setting the amount, to inquire into the ability of the accused to pay. The amount of cash bail must be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the means of the accused and the circumstances of the case. 

(j)     Terms of release imposed under s. 515(4) may "only be imposed to the extent that they are necessary" to address concerns related to the statutory criteria for detention and to ensure that the accused can be released. They must not be imposed to change an accused person's behaviour or to punish an accused person.

(k)   Where a bail review is applied for, the court must follow the bail review process set out in St-Cloud.

Notes on Bail, Hearsay and Search Warrant review

Justification for detention

In Canada, there are only three grounds for detaining an accused prior to sentence. They are commonly referred to as primary grounds, secondary grounds, and tertiary grounds.

Primary grounds refers to whether detention is necessary to ensure the accused's attendance in court.^] Considerations include the accused's criminal history, their behaviour in the matter before the court, their connections (or lack of) with the jurisdiction, and the type of offences before the court.

Secondary grounds refers to whether detention is necessary for the protection or safety of the public. This includes whether there is a substantial likelihood the accused will commit a further offence or interfere with the administration of justice.^]

Tertiary grounds refers to whether detention is necessary to maintain confidence in the administration of justice, and is generally reserved for very serious offences. The four factors to consider are:

• the apparent strength of the prosecutor's case,
• the seriousness of the offence,
• the circumstances surrounding the offence, including whether a firearm was used, and
• if found guilty, whether the accused is liable to a potentially lengthy term of imprisonment, or if a firearm was involved, faces a minimum of 3 year of jail.

1. v.St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328
2. v. Hall, 2002 SCC 64

 

Hearsay

Hearsay evidence is generally inadmissible in Canada unless it falls within one of the established common law exceptions. As a result of the Supreme Court's decision in R. v. Khan 1990] 2 S.C.R. 531 and subsequent cases, hearsay evidence that does not fall within the established exceptions can be admitted where established that such evidence is both "necessary and reliable". Additionally, hearsay evidence that would otherwise be admissible as an exception can nonetheless be excluded if it is not necessary and reliable, as in R. v. Starr [2000] 2 S.C.R. 144.

 

Search Warrants – Issuing and Review

Issuing of Warrant: Reasonable and Probable Grounds

The Charter requires that for all warrants police must provide "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search"^[1] These requirements set out the "minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure"^[2]

In more recent times the standard is called "reasonable grounds to believe". ^[3]

The standard of reasonable grounds to believe is greater than mere suspicion but less than on a balance of probabilities when the totality of the circumstances are considered.^[4] It is a standard of reasonable probability and is credibility based. It must be more than mere possiblity or suspicion.^[5] It is a standard of "credibly-based probability" ^[6]

The key elements to credibility-based probability includes:^[7]

1. The Information to obtain the warrant must set out sworn evidence sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at a specked place^[8]
2. The Information to obtain as a whole must be considered and peace officers, who generally will prepare these documents without legal assistance, should not be held to the "specificity and legal precision expected of pleadings at the trial stage."^[9]
3. The affiant's reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totality of circumstances, disclose a substantial basis for the existence of the affiant's belief: R. v. Yorke 1992 CanLII 2521 (NS CA), (1992), 115 N.S.R. (2d) 426 (C.A.); affd 1993 CanLII 83 (SCC), [1993] 3 S.C.R. 647.

The court may consider the experience of a police officer when assessing whether the officer's subjective belief was objectively reasonable.^[10]

The Justice of the Peace may draw reasonable inferences from the information found in the ITO.^[11]

The approving justice must be satisfied that there is a connection between the grounds for belief of the offence and that evidence of or information related to the offence will be found on the premises to be searched.^[12]

The Information to Obtain the search warrant (ITO) does not need to state every step a police officer takes in obtaining information.^[13]

An ITO can be read in a practical, non-technical, common-sense fashion.^[14]

The officer's are not held to the same drafting quality as counsel.^[15]

The document should be reliable, balanced and material. It should also be clear, concise, legally and factually sufficient, but it need not include "every minute detail of the police investigation". ^[16]

The ITO cannot be based on any information that was learned through an warrantless search of an agent of the state.

Where the basis of the warrant relies on a confidential informer, the requirement from R v Debot must be considered.^[17] Generally, the requirement will increase "the level of verification required" where "credibility cannot be assessed", "fewer details are provided", and "the risk of innocent coincidence is greater". ^[18]

Generally, an approving justice should be satisfied that:^[19]

1. that the items specified exist;
2. that the items specified will be found in the place to be searched at the time of the search;
3. that the offence alleged has been, or will be, (depending on the type of search warrant being sought) committed;
4. that the items specified will afford evidence of the offence alleged; and
5. that the place to be searched is the location where the items will be located.

The document should be reliable, balanced and material. It should also be clear, concise, legally and factually sufficient, but it need not include "every minute detail of the police investigation" ^[20]

1. Hunter v. Southam Inc., 1984 CanLII 33 (SCC), 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 168
   See also R. v. Vella (1984) 14 CCC 513
   R. v. Harris, 1987 CanLII 181 (ON CA)
2. Hunter v Southam at p. 168
3.  Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40[1] at para. 114
4.  ibid.; R. v. Le 2006 BCCA 298; 2006 BCCA 463
5.  Hunter et al v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145
   Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416)
6.  R. v. Hosie [1996] O.J. No. 2175 (ONCA) at para. 11; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 at p. 167
7.  R. v. Morris 1998 CanLII 1344 (NS CA), (1998), 173 N.S.R. (2d) 1 (C.A.) at para. 31
8.  R. v. Sanchez 1994 CanLII 5271 (ON SC), (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.) at 365
9.  Sanchez, supra, at 364
10.  R v. MacKenzie 2011 SKCA 64 at para. 27, see also R v. Navales 2011 ABQB 404
    R. v. Sanchez (1994), 93 C.C.C. (3d) 537 (Ont.Gen. Div.)
11.  See R. v. Durling, 2006 NSCA 124 (CanLII) at paras. 27-28; R. v. Vu at para. 40
12.  R. v. Turcotte 1987 CanLII 984 (SK CA), (1987), 39 C.C.C. (3d) 193 (Sask.C.A)
13.  R. v. Sanchez, [1994] OJ No. 2260 at para. 20
14.  R. v. Whitaker, 2008 BCCA 174 at 41-42
15.  Re Lubell and the Queen (1973), 11 C.C.C. (2d) 188 (Ont. H.C.), at p.190;
    R. v. Durling 2006 NSCA 124 , (2006), 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19;
    R. v. Sanchez 1994 CanLII 5271 (ON SC), (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364;
    Re Chapman and the Queen, (1983), 6 C.C.C. (3d) 296 (Ont. H.C.), at p. 297.
16.  C.B.C. v. A.-G. for New Brunswick 1991 CanLII 50 (SCC), (1991), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562
    R. v. Araujo 2000 SCC 65, (2000), 149 C.C.C. (3d) 449 (S.C.C.), at p. 470;
    R. v. Ling 2009 BCCA 70, (2009), 241 C.C.C. (3d) 409 (B.C.C.A.), at para. 43 (leave to appeal refused, [2009] S.C.C.A. No. 165)
17.  R. v. Hosie [1996] O.J. No. 2175 (ONCA) at para. 12
    See R. v. Debot 1989 CanLII 13 (SCC), 1989 CanLII 13 (SCC), (1989), 52 C.C.C. (3d) 193 at page 215 (S.C.C.)
18.  R v Debot, at page 218
19.  R v Adams 2004 CanLII 12093 (NL PC) at para. 24
20.  C.B.C. v. A.-G. for New Brunswick 1991 CanLII 50 (SCC), (1991), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562
    R. v. Araujo 2000 SCC 65 (CanLII), (2000), 149 C.C.C. (3d) 449 (S.C.C.), at p. 470
    R. v. Ling 2009 BCCA 70 (CanLII), (2009), 241 C.C.C. (3d) 409 (B.C.C.A.), at para. 43 (leave to appeal refused, [2009] S.C.C.A. No. 165)

Standard of Review: The Garofoli Application

A "Garofoli Application" refers to the defence motion to exclude evidence collected under a search warrant.

Before a party can make such an application, they must have standing, which requires that there be an established Reasonable Expectation of Privacy.

Presumptions and Burdens
A warrant is presumed valid. The applicant bears the burden to establish that there was insufficient basis for issuing the warrant. ^[1] This presumption applies not only to the warrant but the ITO as well.^[2]

Degree of Deference
The reviewing judge is not examining police conduct with great attention to minor details or dissection. ^[3] Rather the judge must look at whether there is sufficient evidence for the warrant.^[4]

The test on review is not whether the reviewing judge would have granted the warrant but whether there was "reliable evidence that might reasonably be believed" on which the warrant could have been issued.^[5]

The reviewing judge should not "substitute his or her own view for that of the authorizing judge."^[6]

A search of a private premises "is a derogation from common law rights of ownership. The necessary formalities in the execution of the warrant must, therefore, be strictly observed".^[7]

Quality of Drafting
Flaws are to be expected. ^[8]Inaccuracies or material facts not disclosed does not necessarily detract from the existence of statutory preconditions.^[9]

Errors in the information, "whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselves lead to automatic vitiation of the ... authorization."^[10]

The ITO is examined as a whole and not one piece of evidence at a time. ^[11]

Excised Portions of ITO
Inaccurate or omitted information in an ITO does not necessarily render it invalid.

Inaccurate information can be excised from the ITO, and re-evaluated without the offending information.^[12]

Amplification Evidence
Where information was omitted from an ITO or where information has been excised for other reasons, it is possible to remedy it by adducing amplification evidence.

This form of evidence can be adduced to correct innocent, minor or technical errors.

1.  R. v. Campbell, 2010 ONCA 558, at para. 45. (aff'd, 2011 SCC 32)
   R v Shier, [1998] OJ No 5751 at para. 48
   Quebec (Attorney General) v. Laroche, 2002 SCC 72 (CanLII), [2002] 3 S.C.R. 708
2.  R v Collins (1989) 48 CCC (3d) 343 at p. 356
3.  R. v. Grant 1999 CanLII 3694 (ON CA), (1999), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168 (Q.L.), 150 C.C.C. (3d) vi); R. v. Chan, [1998] O.J. No. 4536 (Q.L.) at para. 4, 40 W.C.B. (2d) 143 (C.A.)
   R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 at para. 15-18
   Simonyi Gindele et al. v. British Columbia (Attorney General) (1991), 2 B.C.A.C. 73 (C.A.) at 79.
4.  R. v. Nguyen, 2011 ONCA 465 at 57
5.  R. v. Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992 at para. 54
   See also R. v. Witaker 2008 BCCA 174
   R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 at para. 56
   R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 SCR 223 at para. 49
   R v. Veinot (1995), 144 N.S.R. (2d) 388 (C.A.) at p. 391, 1995 CanLII 4262
   R v Morelli, 2010 SCC 8 at para. 40
6.  R v Garofoli 1990 CanLII 52 (SCC)
7.  R. v. B.(J.E.), (1989), 52 C.C.C. (3d) 224 (N.S.C.A.)
8.  Nguyen, at 58
9.  R v Pires 2005 SCC 66 at 30
10.  R. v. Bisson, 1994 CanLII 46 (S.C.C.), [1994] 3 S.C.R. 1097; (1995), 94 C.C.C. (3d) 94 at p. 1098
11.  R. v. Whitaker, 2008 BCCA 174
    R. v. Brachi, 2005 BCCA 461
    Re Church of Scientology & the Queen (No. 6) 1987 CanLII 122 (ON CA), (1987), 31 C.C.C. (3d) 449 (Ont. C.A.))
12.  See R v Bisson 1994 CanLII 46 (SCC), [1994] 3 SCR 1097, (1994) 94 CCC (3d) 94 at pp. 95-96
    R. v. Budd, 2000 CanLII 17014 (ON CA) at para. 20-23
    R. v. Agensys International Inc., 2004 CanLII 17920 (ON CA) at para. 32

Pre-Charge delay

The Supreme Court today (R. v. Hunt 2017 SCC 25) upheld a lower court decision (R. v. Hunt, 2016 NLCA 61) which limited the effect of pre-charge delay to rare cases of prejudice.  The Court below, cited by , stated:

[81]        Subject to a few specific exceptions, the laying of indictable criminal charges is not subject to limitation periods (Rourke).  (See also R. v. Finta, 1994 CanLII 129 (SCC), [1994] 1 S.C.R. 701.)  Limitation periods in criminal law are the province of parliament, subject to judicial scrutiny only for constitutional compliance and the ability of courts to control their own processes to protect accused persons through the doctrine of abuse of process.  The invocation of section 7 of the Charter to assist an accused person whose regularly constituted charges involve significant pre-charge delay has been carefully confined to few and unusual circumstances where demonstrated prejudice to his or her fair trial rights or abuse of process is found.

Limitation does not run against tortfeasor who caused damages while tortfeasor is trying to fix problem

Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA 325:

[20]        First, the cases suggest that a legal proceeding against an expert professional may not be appropriate if the claim arose out of the professional's alleged wrongdoing but may be resolved by the professional himself or herself without recourse to the courts, rendering the proceeding unnecessary.

Of the Law Societies of Upper Canada and Nunavut 

Damages for bad faith in terminating a partnership

Tim Ludwig Professional Corporation v. BDO Canada LLP, 2017 ONCA 292:

[68]        Keays holds that, because employers have an implied contractual obligation of good faith in the manner of dismissal, damages for bad faith in the manner of dismissal are within the contemplation of the parties when they enter into the contract. Given the duty of utmost good faith owed between partners, confirmed in Rochwerg, the reasoning in Keays should apply in the partnerships context: damages flowing from bad faith in the manner of a partner's expulsion are within the reasonable contemplation of the parties when they enter into the partnership agreement. Such damages can be awarded on the Hadley v. Baxendale principle.

Of the Law Societies of Upper Canada and Nunavut 

Medical Malpractice

Incompetent treatment by medical practitioners is quite rare. That's why, when it does happen, incompetent medical care is a big news story. It's a bit like the example of how safe airplanes are – a plane crash is so unusual that it gets front page coverage.

All that said, sometimes errors are made and incompetent medical care is given. What does the law say about compensation for such mistakes? Put otherwise when can you sue for damages for medical malpractice?

Put simply all medical practitioners must act in accordance with the reasonable standard of the profession and damages will follow if that standard is not met and the failure to meet the standard leads to damages.

All medical practitioners must live up to the standard of care of a reasonably prudent practitioner. That standard is no one of perfection but rather the standard of the profession. What do other doctors or nurse practitioners or medical professionals do? Even the best doctor will make a mistake – nothing in this life is perfect. A mistake does not necessarily mean malpractice has occurred.

The way the standard of care is proven in court is to have other medical professionals explain what would normally be done. Often doctors disagree as to what appropriate care should be and that can lead to lengthy trials with different doctors taking different views.

Let us suppose, however, the medical practitioner failed to live up to the standard of the reasonably prudent practitioner – does that mean a lawsuit against the practitioner will certainly succeed? No – for a claim to succeed you have to show that there was a failure to meet the required standard of care and that failure led to damages.

A nurse practitioner may make a serious mistake but cause no harm.

Suppose a cold is misdiagnosed as the flu and the patient is told to stay home and rest. The patient recovers anyway – no harm is done. I had a more tragic example in a case I did many years ago. A young man came to an emergency room with a terrible headache. The doctor totally misdiagnosed the young man and sent him home telling him to take some Tylenol. The young man died shortly thereafter. The doctor had made a serious mistake and had fallen well below the standard of the reasonably prudent practitioner but sadly there was no treatment that could have saved the young man. A proper diagnosis would not have done the young man any good – he would have died anyway. As a result the error was not one to lead to a valid claim.

When someone dies or doesn't fully recover from an illness or injury the temptation to blame the medical practitioners can be very strong. That temptation is natural but often misguided.

Expert Evidence Voir Dire Primer

A trial judge must determine on a voir dire whether the individual is qualified as an expert, and if so, what the "nature and scope of the proposed expert evidence" will be. The qualification process is one of delineating the boundaries of the evidence and the language used.
The judge cannot permit the expert to give an opinion on common matters or matters that the expert has no special skills, knowledge, or training.
To qualify a person as an expert, the evidence must still meet the Mohan requirements:
1. the opinion must be relevant;
2. the opinion must be necessary to assist the trier-of-fact to draw the correct inference;
3. the absence of any other exclusionary rule;
4. the required qualifications of the proposed expert.
Additionally, under White Burgess the value of the evidence to be adduced must be such as to outweigh any confusion admitting the evidence might cause. That is:
1. the evidence would tend to usurp the duty of the trier of fact
2. the prejudicial effect outweighs the probative value
3. the time required outweighs its probative value
4. the cost required outweighs the probative value
5. the influence of the evidence outweighs the evidence's reliability.
Expert evidence must be impartial to be admissible. There must not be any bias or appearance of bias.

Mechanically before the evidence is heard the party seeking to adduce the evidence must "qualify" the expert. That is the voir dire – and the justice must say "now we are going into a voir dire". The evidence on the voir dire must show the expert fulfills the test above in which case the expert is allowed to testify.

The justice makes the ruling on admissibility – "I find XY is qualified to give evidence on AB". The voir dire is now complete and the trial continues.

The expert is called and testifies only on the matters allowed. None of the evidence on the voir dire is part of the trial so whatever is sought to be adduced must be adduced in the trial. The expert reports are not in evidence and most properly ought not to be put in evidence except on the express consent of all parties.





Of the Law Societies of Upper Canada and Nunavut

Deposits and Unconscionabilty

Redstone Enterprises Ltd. v. Simple Technology Inc., 2017 ONCA 282:

[19]       Deposits are commonplace in the operation of the market, especially for larger assets such as residential and commercial real estate. Their purpose was explored at learned length by Newbury J.A. speaking for a five-person panel in Tang v. Zhang, 2013 BCCA 52, 359 D.L.R. (4th) 104. At issue in the case was the forfeiture of a deposit of $100,000 on a residential real estate purchase of slightly more than $2 million. The trial judge relieved against forfeiture on the basis that the vendor had been able to re-sell the property for more than the original purchase price so that he had not suffered any loss. The court of appeal reversed the trial decision.

[20]      While Newbury J.A. rejected the argument that simply labelling a payment as a deposit immunized it against the court's equitable jurisdiction to relieve from forfeiture, she declined relief. She distilled several relevant principles from English and Canadian case law, at para. 30. Two are especially pertinent to this appeal:

A true deposit is an ancient invention of the law designed to motivate contracting parties to carry through with their bargains. Consistent with its purpose, a deposit is generally forfeited by a buyer who repudiates the contract, and is not dependant on proof of damages by the other party. If the contract is performed, the deposit is applied to the purchase price;

The deposit constitutes an exception to the usual rule that a sum subject to forfeiture on the breach of a contract is an unlawful penalty unless it represents a genuine pre-estimate of damages. However, where the deposit is of such an amount that the seller's retention of it would be penal or unconscionable, the court may relieve against forfeiture….

[21]      The decision of this court in Peachtree II Associates-Dallas L.P. v. 857486 Ontario Ltd. (2005), 76 O.R. (3d) 362 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 420, is instructive, even though it involved stipulated penalty clauses, not deposits. The case explored the distinction between penalties and forfeitures. 

[22]      Justice Sharpe noted, at paras. 31-32:

[C]ourts should, if at all possible, avoid classifying contractual clauses as penalties and, when faced with a choice between considering stipulated remedies as penalties or forfeitures, favour the latter.

[C]ourts should, whenever possible, favour analysis on the basis of equitable principles and unconscionability over the strict common law rule pertaining to penalty clauses.

Accordingly, he pointed out that: "the strict rule of the common law refusing to enforce penalty clauses should not be extended" (at para. 33). The reason, he explained, is "the policy of upholding freedom of contract" (at para. 34).

[23]      Justice Sharpe continued, noting that: "Judicial enthusiasm for the refusal to enforce penalty clauses has waned in the face of a rising recognition of the advantages of allowing parties to define for themselves the consequences of breach" (at para. 34). He cited in support Dickson J., who decried the prohibition of penalties as "blatant interference with freedom of contract", and advocated treating both penalties and forfeitures under the rubric of unconscionability: Elsley v. J.G. Collins Insurance Agencies Ltd., [1978] 2 S.C.R. 916 at p. 937, 83 D.L.R. (3d) 1, 1978 CarswellOnt 1235, at para. 47 (WL Can).

[24]      The point is well made in Union Eagle Ltd. v. Golden Achievement Ltd., [1997] UKPC 5, [1997] A.C. 514, by Lord Hoffmann for the Judicial Committee of the Privy Council said, at p. 519 (A.C.)

[I]n many forms of transaction it is of great importance that if something happens for which the contract has made express provision, the parties should know with certainty that the terms of the contract will be enforced. The existence of an undefined discretion to refuse to enforce the contract on the ground that this would be "unconscionable" is sufficient to create uncertainty. Even if it is most unlikely that a discretion to grant relief will be exercised, its mere existence enables litigation to be employed as a negotiating tactic.

[25]      I would agree that the finding of unconscionability must be an exceptional one, strongly compelled on the facts of the case.

Of the Law Societies of Upper Canada and Nunavut 

How to Adopt a Child in Nunavut

R.A v. S.K. and D.K. 2017 NUCJ 5:

[12]  In Nunavut there are two ways of adopting a child. One way is in accordance with Inuit custom. This does not involve the Courts or any government agencies. If a child has been adopted in accordance with Inuit custom, an adoptive parent may apply for a certificate recognizing the adoption. This is done pursuant to the ACARA, by providing certain information to a Custom Adoption Commissioner and requesting a Certificate. The Commissioner reviews the information and if he or she is satisfied that the child was adopted in accordance with Inuit custom, a Certificate recognizing the adoption is issued. The Certificate is registered with the Nunavut Court of Justice and is enforced as an order of the Court. The Certificate facilitates the issuance of birth certificates and other similar documentation.

[13] An adoption may also proceed under the Adoption Act, SNWT, 1998, c 9 (Nu) [Adoption Act]. The Adoption Act provides for departmental adoptions (where the child is in the permanent care of social services), step-child adoptions (where the adopting parent is a step-parent) and private adoptions (adoptions arranged between the birth parents and the adoptive parents). The majority of adoptions done under the Adoption Act are private adoptions.

[14] A private adoption under the Adoption Act requires that the Director of Adoptions be notified of the intention to place a child for adoption and requires that a pre-placement report be completed before the child can be placed. The biological parents must provide written consent to the adoption, after having received advice as to the legal effects of an adoption. The consent may be revoked within a specified time period.

[15] If a child from Nunavut is being adopted outside of the Territory, the child cannot be removed from the Territory until there is a pre-placement report and the approval of the Director of Adoptions. If the child to be adopted is aboriginal, the appropriate aboriginal organization, Qikiqtani Inuit Association [QIA], Kivalliq Inuit Association [Kivalliq KIA] or Kitikmeot Inuit Association [Kitikmeot KIA]) must be notified and consulted. Once a child has been placed for adoption and has been with the adoptive parents for at least 6 months, a Family Union Report is done by an adoption worker. References and criminal record checks are part of the placement process. Application is then made to the Nunavut Court of Justice to grant the Adoption Order.

[16] One of the distinctions between an aboriginal custom adoption and an adoption under the Adoption Act is the requirement for home studies and other checks to ensure the suitability of the adoptive parents. 

Confession Rule does not apply to Charter Voir Dire

R. v. Paterson, 2017 SCC 15:

The confessions rule should not be expanded to apply to statements tendered in the context of a voir dire under the Charter . The Crown must prove the voluntariness of an accused's statement before it can rely upon that statement at trial as supporting a finding of guilt. The purpose of the judicial inquiry in a Charter voir dire is distinct from the purpose of a criminal trial. A criminal trial is concerned with determining whether the accused is guilty of an offence. In a Charter voir dire, however, the focus is not on the accused's guilt, but on whether the accused's constitutional rights were infringed. A Charter voir dire thereforeinvolves a review of the totality of the circumstances known to, and relied upon, by the state actor at the time of the impugned action. Only the state actor's contemporary state of mind and conduct is at issue, and not the truthfulness of the statement upon which he or she relied. It is for this reason that the truthfulness of a statement has no bearing upon its admissibility; rather, the inquiry is focussed upon whether it was reasonable for the state actor to rely upon the statement as forming grounds for the action under scrutiny. Admitting a statement by an accused for the purpose of assessing the constitutionality of state action, as opposed to the purpose of determining the accused's guilt, does not engage the rationale for the confessions rule. To apply the confessions rule to evidence presented at a Charter voir dire would distort both the rule and its rationale. It would stifle police investigations, compromise public safety and needlessly lengthen and complicate voir dire proceedings. 

Of the Law Societies of Upper Canada and Nunavut 

Reasonable Apprehension of Bias

Miracle v. Maracle III, 2017 ONCA 195:

[2]            The test for reasonable apprehension of bias laid down and consistently endorsed by the Supreme Court of Canada is:

what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.  (Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21

[3]            The reasonable observer is not a person with a “very sensitive or scrupulous conscience”: R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para 31.  Rather, it is the “sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument” and “who takes the trouble to read the text of an article as well as the headlines”:  Helow v. Secretary of State for the Home Department, [2008] UKHL 62, [2008] 1 W.L.R. 2416 (U.K. H.L.), at para. 3.

[4]            In our view, that test is not met in the circumstances of this appeal. The issues arising in Tyendinaga Mohawk Council v. Brant were strictly legal in nature and quite distinct from the issues posed on this appeal. A reasonable observer would not conclude that, because a judge has ruled against a party on a legal issue in one case, that judge, whether consciously or unconsciously, would likely be biased when deciding a different legal issue with respect to that same party in another case.

[5]            Moreover, there is absolutely no connection between anything done in the course of Hourigan J.A.’s prior employment in the office of the Attorney General of Ontario and the issues raised on this appeal. There is no merit to the appellant’s contention that Hourigan J.A.’s prior employment gives rise to a reasonable apprehension of bias.

[6]            We further note that, when this appeal was listed for hearing last week, counsel for the appellant made similar allegations of bias against a differently constituted panel. That panel ruled that, while there was no substance to those allegations, the case would be adjourned to a different panel. The repetition of the same complaint today reveals a pattern of conduct on the part of counsel that cannot be condoned. Unfounded claims of bias and repeated requests for adjournments cause delay and impose added cost to other litigants and the court system. Judges have a duty to sit and hear cases to ensure proper and expeditious justice. They must not be dissuaded from fulfilling that duty by groundless allegations of bias.

[7]            We adopt, for the purposes of this appeal, the following statement made by Doherty J.A. in Beard Winter LLP v. Shekhdar, 2016 ONCA 493, [2016] O.J. No. 3257, at para. 10:

It is important that justice be administered impartially.  A judge must give careful consideration to any claim that he should disqualify himself on account of bias or a reasonable apprehension of bias.  In my view, a judge is best advised to remove himself if there is any air of reality to a bias claim. That said, judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands.  Litigants are not entitled to pick their judge.  They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges.  To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic.

Expert Police Evidence Excluded for Lack of Independence

R. v. McManus, 2017 ONCA 188:

(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.

Of the Law Societies of Upper Canada and Nunavut