R. v. Paxton, 2012 ABQB 96

Court of Queen ’ s Bench of Alberta Citation: R. v. Paxton, 2012 ABQB 96 Date: 20120210 Docket: 110017514Q1 Registry: Calgary Between: Her Majesty the Queen Crown/Respondent - and - Dustin Ward Paxton Accused/Applicant Restriction on Publication: By Court Order, information that may identify the person described in this judgment as The Complainant /D.L. may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code , s. 486.5. _______________________________________________________ Ruling on a Voir Dire of the Honourable Madam Justice S.L. Martin _______________________________________________________

TABLE OF CONTENTS 1. Introduction.............................................................................................................. Page: 2 2. Procedural Matters, the Notice of Motion and Evidence at the Voir Dire ........ Page: 4 3. Legal Principles..................................................................................................... Page: 5 A. Sections 7 & 11(

d) of the Canadian Charter of Rights and Freedoms Page: 5 B. A Stay of Proceedings.............................................................................. Page: 7 4. The Role of Crown Counsel.................................................................................. Page: 9 5. Issues...................................................................................................................... Page: 9 6. Did the Police and/or the Crown Conduct in Regard to Mr. Robert Cannon Violate any of Mr.

Paxton’s Charter Rights?.................................................................................................... Page: 10 A. Background.............................................................................................. Page: 10 B. Was there Communication by Detective Harris from the Public Gallery to Mr. Cannon Throughout Cross-Examination of Mr. Cannon.................................... Page: 11 C. The Charges and Warrants of Mr. Robert Cannon.............................. Page: 21 D. Alleged Non-Disclosure of a Plea Resolution Agreement Between The Crown and Mr.

Robert Cannon...................................................................................................... Page: 29 E. Was there Special Treatment?.............................................................. Page: 31 F. Alleged Crown Interference with The Arrest of Mr. Cannon in Court on September 28, 2011................................................................................................................... Page: 33 G. Issues Concerning Alleged Non-Disclosure......................................... Page: 34 H.

The Remaining Matters........................................................................... Page: 35 I. Conclusion on Mr. Cannon...................................................................... Page: 36 7. Did the Police Taint the Investigation and/or Use Inappropriate Investigative Techniques such that Mr. Paxton’s Charter Rights Were Violated?.......................................................... Page: 36 A. The Standards for Police Investigative Techniques............................. Page: 36 B.

Did the Manner in which Detective Crippen Interviewed Witnesses Taint their Evidence................................................................................................................... Page: 37 C. While Interviewing the Witnesses, Did Detective Crippen Consistently Lead them through their Interview and Ask Witnesses to Supplement their Written Statements Page: 40 D. Detective Crippen’s Disclosure of Confidential Police Information throughout the Investigation to R.L., the Mother of the Complainant Page: 41 E.

Did the Communication by Detective Crippen with the Mother of the Complainant, R.L. during the Trial over Facebook Influence the

Trial Evidence.......................................................................................... Page: 42 F. Did Detective Crippen Taint the Investigation by Continually Referring Potential Witnesses to Facebook Groups for the Complainant, the CTV W5 Interview, Media Reports and Other Websites Tainting their Ability to Give Objective Evidence................ Page: 43 G. Allegations Concerning Note-Taking..................................................... Page: 43 8. Did the Crown Conduct itself Inappropriately before the Court in a Manner that Breached Mr.

Paxton ’ s Charter Rights?...................................... Page: 44 A. Inconsistent Representations................................................................. Page: 44 B. The Crown and Detective Crippen........................................................ Page: 44 C. Communications Between Ms. Harrison and D.L. over Facebook.... Page: 46 D. Did the Crown Make Conflicting Representations about His Involvement in the Travel Plans for Mr. Cannon and the Reasons Why that Information Should Not Be Disclosed........................................................................ Page: 46 9.

Did the Crown Breach Its Disclosure Obligation?............................................ Page: 46 A. General Principles Regarding the Crown ’ s Duty to Disclose............. Page: 46 B. Requirement of Applicant to Show Actual Prejudice........................... Page: 48 C. The Absence of Direct Evidence of Prejudice..................................... Page: 48 10. Late and Wilful Non-Disclosure.......................................................................... Page: 51 A.

Was There a Failure to Meet the August 3, 2011 Deadline For Expert Notice as set in PreTrial Conference.................................................... Page: 51 B. Disclosure During the Trial..................................................................... Page: 51 i. Ms. Lindsay Airhart ’ s Journal Disclosed on the First Day of Trial, September 27, 2011............................................. Page: 52 ii. The 617 Pages of Emails Between Detective Crippen, Crown and Other Witnesses Disclosed October 3, 2011................... Page: 53 iii. Notes and Statement of Ms.

Lynn Ness ................................... Page: 54 iv. Dr. McKenzie Gave Testimony With No Will Say Disclosed.. Page: 55 v. Dr. Hanrahan ’ s Notes Disclosed November 1, 2011.............. Page: 56 vi. Crown Disclosed 10 Page Time Line that Dr. Mohandie Referred to in his Opinion Letter Disclosed on November 9, 2011....................................................................... Page: 56 vii. Crown Disclosed on November 8, 2011 that Dr. Mohandie had Reviewed Transcripts that were not Included in his Original Opinion Letter...............................................................................

Page: 58 viii. Disclosure that Dr. Mohandie Testified that he Listened to the Manner in which D.L. Spoke on November 8, 2011..................................................... Page: 58

C. Was There Wilful Non-Disclosure During The Trial.............................. Page: 58 i. Facebook Messages Between Detective Crippen And R.L.. Page: 58 a. October 6 th Facebook Communication......................... Page: 59 b. Undisclosed Facebook Communication....................... Page: 61 ii. Dr. Heisel ’ s Report, “ Wanted To Keep It Third Party ” ............. Page: 64 iii. Travel Arrangements For Mr. Cannon....................................... Page: 66 iv. Facebook Messages Between Detective Crippen and D.L... Page: 69 D.

New Information....................................................................................... Page: 70 i. Background.................................................................................. Page: 70 ii. Issues Page: 73 iii. The Late Disclosure Of The Email Chain.................................. Page: 74 iv. Decision Page: 77 E. Conclusions On Trial Fairness............................................................... Page: 84 11. Has the Conduct of the Crown and The Police Undermined the Fundamental Integrity of the Justice System?............................................ Page: 84 1.

Introduction [ 1 ] This voir dire arises out of the trial of Mr. Paxton on five charges, being assault with a weapon and uttering threats against Mr. Chutta, and the aggravated assault, unlawful confinement, and sexual assault of D.L., whose name is protected under a mandatory publication ban. [ 2 ] Mr. Paxton seeks a stay of proceedings based on approximately 35 separately alleged violations of his Charter rights. In such an application Mr.

Paxton bears the burden of proof to establish, on a balance of probabilities, that his Charter rights were violated in such a manner that the extraordinary remedy of a stay of proceedings is warranted. [ 3 ] The Defence makes several serious claims.

For example, that: a police officer coached and directed the answers of a witness in court during cross-examination; there was a secret plea arrangement with, and/or the special treatment of, a Crown witness to secure that witness’s testimony; the lead Detective employed unreliable and improper investigative techniques; the Crown made inaccurate statements to the Court; and the Crown failed to meet its disclosure obligations, including multiple allegations of wilful non-disclosure.

The Defence argues that certain impugned police and Crown conduct qualify independently as breaches of sufficient seriousness to warrant a stay of proceedings. The Defence argues further that, cumulatively, the breaches, in combination with errors caused by inadvertence, show a pattern of Crown indifference to its obligation that threatens the integrity and fairness of the criminal trial process. [ 4 ] The Crown says these things never happened, either at all, or in the overblown way asserted.

The Crown defends on the basis that: the Defence has become obsessed with certain witnesses and is putting forward exaggerated claims and theories of its own creation, even in the face of facts and explanations which disprove them; that any small oversights or inadvertent errors did not breach Mr. Paxton’s Charter rights or generate prejudice; and that Mr. Paxton had a fair trial but what he seeks is what the Charter does not guarantee, which is an unfair trial in his favour.

In short, the Crown argues that nothing supports a stay of proceedings and the pressing and overarching societal interest is to have the matter determined on its merits. [ 5 ] The following judgment addresses the various alleged Charter breaches and the evidence and argument addressed in the voir dire . Given the number and range of the various allegations, it seemed sensible to issue a written decision. These reasons are, however, to be read together with my judgment in respect of the innocence or guilt of Mr. Paxton in the trial proper.

While each set of reasons are given in different formats, they form inter-related parts of an integral whole. Some conclusions reached in this judgment, especially in relation to whether the accused has proven prejudice, are more fully explained and can only be fully understood by reference to my findings concerning the evidence in the trial proper. I have not, however, applied the evidence in this voir dire to the trial proper.

[ 6 ] For the reasons that follow, I dismiss Mr. Paxton’s application and decline to award any remedy under either s. 24(1) or (2) of the Charter . Finding that a trial has been unfair or the rights of the accused have been denied through an abuse of process are not matters to be judged against the length of the list of allegations made. In certain circumstances one breach of a Charter right will be sufficient to support a stay.

In others, numerous assertions, powerful adjectives or citing cherished legal principles may not be sufficient. [ 7 ] Having considered the relevant legal principles and evidence, almost all of the claims are not made out on the facts. I accept the evidence of Detective Harris and find there was no signaling by him to Mr. Cannon. Mr. Cannon did not receive either a plea arrangement or some other form of special treatment. Sheriff Black exercised his discretion to not arrest Mr.

Cannon based on his own independent decision, uninfluenced by the actions of either the Defence or Crown. [ 8 ] The evidence shows some misunderstandings, some shortcomings and a few errors, sometimes on both sides. For the most part, no Charter breach has been demonstrated. [ 9 ] While there are instances in which the Crown’s disclosure obligations were not fully respected, in no case has there been the proof of prejudice required to support the grant of a remedy, let alone a stay of proceedings. Nor can the Defence substantiate its claim that the Crown has been indifferent to its disclosure obligation.

There was over 7100 pages of disclosure, most issues were resolved by counsel, and a few were decided by the Court in the trial proper. A relatively small number of matters remained outstanding by the time of the voir dire and most complaints dealt with the timing of disclosure. The Crown had a proper process in place to deal with its obligations and responded appropriately, if not always perfectly, to Defence requests for further disclosure.

Any undisclosed information was not capable of materially affecting the overall picture of evidence in the trial proper, and the lack of disclosure did not deny the Defence any reasonably possible uses of that information that bears on the fairness of the trial process. In other words, Mr. Paxton did not suffer any prejudice of a degree sufficient to justify a stay of proceedings. [ 10 ] Nothing alone or in combination supports a stay of proceedings. Issues do not become systemic just because Mr. Paxton’s list of alleged breaches occupies four pages.

Each such breach must be assessed on its own and then the overall conduct of the police and the Crown is to be considered together. A stay is reserved for those limited and exceptional cases where the accused has satisfied the court that the conduct complained of shocks the conscience of the community. [ 11 ] The Crown and police did not overstep their authority in the proceedings and there was no abuse of the criminal justice process so egregious as to warrant a stay. The investigation and prosecution were not conducted in a manner that contravenes the community’s basic sense of decency and fair play.

The evidence does not disclose any serious abuse of process to the justice system that would warrant the drastic measure of the imposition of a stay. [ 12 ] In short, Mr. Paxton has received a fair trial and the integrity of the justice system is not impugned by the manner in which this investigation or prosecution was conducted. Further, even if I was uncertain, the balance of public interests favours adjudication on the merits. 2. Procedural Matters, the Notice of Motion and Evidence at the Voir Dire [ 13 ] The trial commenced on September 27, 2011.

The Crown closed its case on November 15, 2011, and the Defence elected not to call evidence. [ 14 ] At the close of the trial proper, the Defence filed a notice of motion for a stay of proceedings supported by two affidavits. The Crown sought, and the Court called for, a more adequate notice outlining the nature of alleged Charter breaches. The Defence filed a new notice on November 18, 2011. That notice sets out about 35 separate breaches of Mr. Paxton’s ss. 7 and 11(

d) Charter rights under four general headings. Despite on record statements by the Defence that only a stay of proceedings was sought, the notice was also broadened to request any other remedy this Court finds just and appropriate in the circumstances. [ 15 ] While the amended notice was also said to be taken based on the same two affidavits, as events unfolded much more evidence

was brought before the Court, including numerous exhibits and extensive viva voce testimony. Where allegations of a Charter breach areis dispute then viva voce evidence is necessary. See R. v. Dias, 2010 ABCA 382, 265 CCC (3d) 34 at para 13; R. v. Leduc (2003) (ON CA), 176 C.C.C. (3d) 321 at para 132 (ONCA) leave to appeal to S.C.C. refused, January 12, 2004); and R. v.Chaplin, (SCC), [1995] 1 SCR 727, 162 AR 272 at para 33. [16] A distinctive feature of this voir dire is that trial counsel for both the Crown and the Defence testified, an infrequent eventbased upon the authorities.

As a result, different counsel conducted the voir dire. Crown counsel on the stay application were Mr. LloydRobertson, Q.C. and Mr. Gary Cornfield, Q.C.. The Defence was represented by Mr. Michael Bates. [17] On December 2, 2011 the Defence applied to recuse me from hearing the stay application. That motion was denied onDecember 7, 2011. [18] Evidence on the voir dire then began. The Defence called Mr. James Lutz and Ms. Andrea Serink, trial counsel for Mr.Paxton, both of whom testified without a waiver of solicitor-client privilege; Ms.

Margot Engley, a Crown attorney who had somedealings with the outstanding criminal charges against the witness Mr. Robert Cannon; Ms. Jillian Williamson and Mr. Olak Malik,spectators in the public gallery on September 30, 2011 when Mr. Cannon was cross-examined; Ms. Paula Lorenz, the court clerk for thetrial; and Sheriff Ian Black, a sheriff during the trial. [19] The Crown called Mr. Joseph Mercier and Ms. Nadia Tejpar, trial counsel for the Crown; Detective Stephen Harris, thedetective whose primary duty was witness management for out-of-town witnesses; Ms. Crystal Trotman, the fiancée of Mr. RobertCannon; Ms.

Glenda Nyberg, a support worker for witnesses from the Victims Assistance Unit; Ms. Susan Pepper, an Assistant ChiefCrown Prosecutor who was the Crown who brought the criminal charges involving Mr. Cannon into court; and Ms. Judith Harrison, aparalegal working for the Crown who was involved in the disclosure process. [20] Despite extensive viva voce evidence no issues of credibility arise. I find that all individuals who testified were engaged in agood faith effort to convey their recollections in a truthful manner.

While there were certain minor discrepancies, for the most part thefactual foundation was remarkably consistent. Where the parties differ relates primarily to whether these facts as recounted give rise toany breach or remedy. [21] Evidence in the voir dire concluded on December 20, 2011. Argument concluded on December 22, 2011. [22] In argument, the Court questioned the Defence about allegations in the notice of motion that Detective Crippen conductedwitness interviews in a manner that infringed Mr. Paxton’s Charter rights.

There had been little oral argument on this topic and theDefence was given leave to file written materials on this one issue, with time for the Crown to respond so that all materials would be inthe hands of the Court on January 16, 2011. For reasons acceptable to the Court, the Defence could not meet the original deadline. Theschedule shifted and I received the Crown’s materials on January 20, 2011.

The Defence written materials also contained some newarguments in relation to matters previously argued orally. [23] In argument the Defence, in response to a question from the Court, stated that it was not withdrawing any of the allegationsput forth in the Charter Notice, even though such often occurs after the evidence has been completed and counsel determines whatevidentiary foundation has in fact been laid. A full review indicates that the Defence has stepped back from certain allegations andsimply did not argue others.

Despite the Court requesting that counsel argue based on the specific allegations in the Charter Notice, thiswas not done in any systematic manner. 3. Legal Principles [24] To succeed Mr. Paxton bears the onus to establish, on the balance of probabilities, both that his Charter rights have beenbreached and that a stay is just and appropriate in the circumstances. See R. v. Ward, 2007 ABQB 344, 434 AR 378. A. Sections 7 & 11(

d) of the Canadian Charter of Rights and Freedoms

[25] Mr. Paxton relies on sections 7 and 11(

d) of the Charter in his application for a stay of proceedings. [26]

Section 7 provides that: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [27]

Section 11(

d) guarantees that an accused has the right to a fair and public hearing. It reads: Any person charged with an offence has the right: (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; [28]

Section 7 has been recognized as one of the most powerful and commonly used Charter instruments. It encompasses bothprocedural and substantive rights and protects a wide range of interests. [29] As a result of its broad reaching nature, s.7 acts as a residual

section through which the rights guaranteed in ss. 8-14 of theCharter find protection through the principles of fundamental justice. [30] In this respect, ss. 7 and 11(

d) are “ inextricably intertwined”: R v. Seaboyer, (SCC), [1991] 2 SCR 577, 66CCC (3d) 321 at 603. While s. 11(

d) particularizes an accused’s right to a fair hearing, s. 7 protects the right to a fair hearing through theprinciples of fundamental justice. In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research), (SCC), [1990] 1 S.C.R. 425, 54 CCC (3d) 417 at 560 Justice La Forest wrote: ...The right of an accused to a fair hearing is constitutionalized by s. 11(d), a right that would in any event be protected under s. 7 as anaspect of the principles of fundamental justice.... [31] To engage s. 7, Mr. Paxton must demonstrate that his right to life, liberty or security of the person has been infringed.

Mr.Paxton has met this burden by virtue of the fact that he faces potential imprisonment: see Reference re s. 94(2) of Motor Vehicle Act(British Columbia), (SCC), [1985] 2 SCR 486, 23 CCC (3d)

Section 11(

d) is also engaged by virtue of the fact thatMr. Paxton is a person charged with an offence. [32] The right to a fair hearing is a bedrock of the Canadian justice system. As a right first recognized under the common law, andlater entrenched in the Charter under ss. 7 and 11(d), fairness in the trial process is the foundation upon which our criminal justicesystem operates. It is a right that belongs to everyone in Canada and one that cannot be compromised: R. v.

Harrer, (SCC), [1995] 3 SCR 562, 101 CCC (3d) 193 at para 40. [33] At its most basic level, a fair trial is one that appears fair from both the perspective of the accused and the perspective ofsociety at large. It is not a perfect trial nor is it the most advantageous trial possible from the accused’s point of view: R v. Lyons, (SCC), [1987] 2 SCR 309, 37 CCC (3d) 1 at 362.

As stated by Chief Justice McLachlin in Harrer at para 45, “[A fair trial]must [not] be conflated with the perfect trial; in the real world, perfection is seldom attained.” [34] The right to a fair trial is informed by other principles of fundamental justice including the right to make full answer anddefence, the presumption of innocence, and the principle against self-incrimination: R v. Rose, (SCC), [1998] 3 SCR262, 129 CCC (3d) 449.

[35] The Supreme Court of Canada has said that the right to full answer and defence entitles the accused to rules and procedureswhich are fair and which enable to accused to defend against and answer the Crown’s case. [36] The right to make full answer and defence is not absolute. It does not entitle the accused to those rules and procedures that aremost likely to result in a finding of innocence: Rose at para 99; Harrer at para 14. [37] In R v.

Mills, (SCC), [1999] 3 SCR 668, 139 CCC (3d) 321 at para 73, the Supreme Court of Canadaemphasized that courts should not consider the principles of fundamental justice in isolation from one another. Courts should take acontextual approach when analyzing competing rights. [38] A leading case is R. v.

O’Connor (SCC), [1995] 4 SCR 411, 103 CCC (3d) 1 where the Supreme Courtjoined the common law doctrine of abuse of process with the principles of the Charter at para 63: ... it seems to me that conducting a prosecution in a manner that contravenes the community’s basic sense of decency and fair play andthereby calls into question \the integrity of the system is also an affront of constitutional magnitude to the rights of the individualaccused. B.

A Stay of Proceedings [39] From the outset, and throughout the voir dire, the primary remedy sought by the Defence has been a stay of proceedings. [40] A stay of proceedings is a very serious remedy. It prevents, forever, the possibility of bringing or resolving charges ofcriminal behavior before a trier of fact. It is final and has been called draconian, exceptional, the “ultimate remedy.” Canada (Minister ofCitizenship & Immigration) v. Tobiass, (SCC), [1997] 3 SCR 391, 118 CCC (3d) 443 at para 86.

According to theSupreme Court these characteristics justify the requirement of a very high threshold: a stay will only be granted in the clearest of cases.R. v. Regan, 2002 SCC 12, [2002] 1 SCR 297 at para 53. [41] Two categories of cases may attract a stay of proceedings.

The first category implicates the fairness of an individual’s trialresulting from state misconduct, for example, any of the various forms of breaches recognized under ss. 7 and 11(d). [42] Where the issue is non-disclosure, the Supreme Court stated that an accused who seeks the extraordinary remedy of a stay ofproceedings must not only establish, on a balance of probabilities, that the right to make full answer and defence was impaired, but mustalso demonstrate irreparable prejudice to that right: R. v. Dixon, (SCC), [1998] 1 SCR 244, 50 CRR (2d) 108 at para37.

The exclusion of evidence is available as a remedy for late disclosure but only if the late disclosure renders the trial unfair, andfairness cannot be remedied through an adjournment and a disclosure order. Sometimes the exclusion of evidence is warranted whennecessary to maintain the integrity of the justice system. A stay of proceedings involving non-disclosure is a remedy of last resort. Thetypical remedy sought is a disclosure order and an adjournment. [43] The second category is a residual category, unrelated to the fairness of the trial.

It involves state conduct that contravenesfundamental notions of justice, thus undermining the integrity of the judicial process. While this category is said to be small and relatesto special and rare occurrences, many cases have been heard and decided on this basis: for example, entrapment, reverse-sting operationsand Mr. Big scenarios: see Robert J. Frater, Prosecutorial Misconduct, (Toronto: Canada Law Book, 2009). [44] In this residual category the conduct need not affect the fairness of the trial or impair other procedural rights enumerated inthe Charter.

Instead, it addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conductedin such a manner as to connote unfairness and vexatiousness of such a degree that it contravenes fundamental notions of justice and thusundermines the integrity of the judicial process: R. v. O’Connor, at para 73. Even in this category, the important prospective nature ofthe stay must still be satisfied.

[45] If it appears that the state has conducted a prosecution in a way that renders the proceedings unfair or is otherwise damagingto the integrity of the judicial system, two criteria must be satisfied before a stay will be appropriate: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by itsoutcome.

According to Regan at para 54 a stay is not generally intended to redress past wrong but rather aims to prevent the perpetuationof a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future; and (2) no other remedy is reasonably capable of removing that prejudice: Tobiass at para 91.

Other remedies, less drastic than a stay, areappropriate where the applicant has demonstrated a breach of his Charter rights, but where the “clearest of cases” standard has not beensatisfied. [46] For cases in either the above categories, where there remains some uncertainty as to whether the abuse is sufficiently seriousto create the prejudice to warrant a stay, there is a third criteria that the court may consider.

That is the balancing of the interest ingranting a stay against society’s interests in having a trial on the merits. [47] Where the residual category is engaged, a court will generally find it necessary to perform the balancing exercise referred toabove. When a stay is sought on the basis of the residual category, there will not be a concern about continuing prejudice to the applicantby proceeding with the prosecution.

Rather, the concern is for the integrity of the justice system. [48] A stay of proceedings is therefore reserved for the clearest of cases in which the integrity of the justice system is implicated.See also R. v. Leduc (ONCA); R. v. Antinello (1995), 1995 ABCA 117 , 165 AR 122, 97 CCC (3d) 126 (CA); R. v. Curragh, (SCC), [1997] 1 SCR 537, 113 CCC (3d) 481; R. v. Spence, 2011 ONSC 2406, 85 CR (6th) 72; R. v. Bjelland, 2009SCC 38, [2009] 2 SCR 651; R. v. R.P.S, 2010 ABQB 418, 503 AR 233; R. v. Robinson, 1999 ABCA 367, 250 AR 201; R. v. Latimer, (SCC), [1997] 1 SCR 217, 112 CCC (3d) 193; R. v.

Gangl, 2011 ABCA 357. 4. The Role of Crown Counsel [49] Crown counsel plays a special role in the justice system, a quasi-judicial role sometimes likened to that of a “Minister ofJustice.” They are required to act with objectivity, independence, and with a lack of animus. [50] According to R. v.

Boucher (1954), (SCC), [1955] SCR 16, 110 CCC 263 at 23-24, the purpose of the criminalprosecution is not to obtain a conviction, but to lay before the trier of fact what the Crown considers to be credible evidence relevant towhat is alleged to be a crime: “counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmlyand pressed to its legitimate strength but it must also be done fairly.

The role of prosecutor excludes any notion of winning or losing.” [51] In Regan, at para 158, the Supreme Court said that there are very high standards to be met by the Crown, obligations metdaily in Canada’s courtrooms around the country. Accordingly, “unfounded or trivial allegations will be given short shrift”. 5. Issues [52] To ensure that the numerous allegations are addressed, the structure of the Defence Charter Notice forms the basis of thefollowing analysis. Each of those headings yields a separate issue and the particular points argued in respect of these headings will beconsidered.

In some cases I have altered the order in which the allegations within the headings are addressed and sometimes severalallegations are grouped together for consideration. [53] The Defence’s four primary headings give rise to the following general issues:

1. Did the police and/or the Crown conduct in regard to Mr. Robert Cannon violate any of Mr. Paxton’s Charter rights? 2. Did the police taint the investigation and/ or use inappropriate investigative techniques such that Mr. Paxton’s Charter rights were violated? 3. Did the Crown conduct itself inappropriately before the Court in a manner that breached Mr. Paxton’s Charter rights? 4. Did the Crown breach its disclosure obligations? [ 54 ] The Court asked the parties to follow the Defence Charter Notice in argument. However, that was not done.

In the result it should be noted that the Defence did not always argue or present evidence on each allegation, while also saying no allegations were withdrawn. 6. Did the Police and/or the Crown Conduct in regard to Mr. Robert Cannon Violate any of Mr. Paxton ’s Charter Rights? A. Background [ 55 ] The Defence has made several allegations concerning the Crown witness Mr. Robert Cannon. [ 56 ] Mr. Cannon was one of several individuals who lived at the Centre Street House where Mr. Paxton and D.L. resided. Mr. Cannon lived there from May until July 5, 2009.

He also worked for the moving company started by D.L. and Mr. Paxton for a short period of time. Mr. Cannon was a helpful witness to the Crown because he testified that he saw Mr. Paxton assault D.L. many times. [ 57 ] Mr. Cannon had moved from Calgary, lives in Ontario and only came forward as a potential witness about a month before trial. All matters relating to Mr. Cannon, including disclosure and witness preparation, were therefore done relatively quickly and during the busy time of pre-trial preparation. [ 58 ] Detective Crippen, the lead investigator on the Paxton file, went to Ontario to interview Mr.

Cannon on September 10, 2011. That interview was transcribed and as Detective Crippen was away on a course, Detective Stephen Harris was called in to proof read and verify the transcript: thus gaining some familiarity with Mr. Cannon’s recollections of events. [ 59 ] Mr. Cannon arrived in Calgary on September 27, 2010, with Ms. Trotman, his fiancée. They were met by Detective Harris at the airport and brought to the hotel. Detective Harris was charged with transportation duties in respect of all out of town witnesses for the Paxton trial.

Except for his work on the transcript of Detective Crippen’s interview with Mr. Cannon, Detective Harris had not had any previous investigative duties in respect of the Paxton case. [ 60 ] Mr. Cannon began his testimony on the morning of September 28, 2011. Cross-examination, conducted by Mr. Lutz, began that day and was stopped early that afternoon as Mr. Cannon was in physical distress. He suffered from back problems.

He was moving around in the witness box, sometimes leaning over on the front hand rail, and eventually he sat during his testimony. [ 61 ] On September 29, 2011, Crown and Defence asked for time to discuss matters and Court reconvened in the afternoon to hear another witness. Mr. Cannon did not testify that day in the Paxton trial. Instead, he was in Provincial Court dealing with outstanding criminal charges which had been brought forward by the Crown for disposition that day. [ 62 ] Cross-examination of Mr. Cannon continued the morning of September 30, 2011. Three breaks were taken that morning, two

to allow Mr. Cannon the opportunity to compose himself. He broke down, began crying and fell silent at various points in the morning, particularly when describing what he witnessed and experienced. [ 63 ] Mr. Cannon testified in the trial that he was afraid of Mr. Paxton and this fear was the main reason he left Calgary. Mr. Cannon was also upset because his picture had been on the front page of the newspaper and he was fearful that he would be attacked. B. Was there Communication by Detective Harris from the Public Gallery to Mr. Cannon throughout Cross-Examination of Mr.

Cannon [ 64 ] The Defence alleges that Detective Harris was in communication with Mr. Cannon on the morning of September 30, 2011 while Mr. Cannon testified and Detective Harris was in the public gallery. The claim is that Detective Harris nodded and moved his head in a way to suggest answers to Mr. Cannon while Mr. Cannon was under cross-examination: in essence that Detective Harris used physical gestures with the intention and purpose of coaching this witness. The Defence called three witnesses in respect of this allegation: Ms. Williamson, Mr. Malek, and Ms.

Lorenz. [ 65 ] The Crown called Detective Harris, Ms. Crystal Trotman and Ms. Nyberg. Detective Harris testified, saying his movements were involuntary, he was there to both transport and support Mr. Cannon, but he denied any attempt or intent to signal or coach the witness. [ 66 ] Many matters are not in dispute. [ 67 ] First, Mr. Cannon was in obvious emotional distress during his testimony. All witnesses recognized that he was having difficulties answering questions and such accords with my personal observations and the breaks required during the proceedings. [ 68 ] Second, Mr.

Cannon was also very anxious outside the court room. Ms. Glenda Nyberg is a volunteer from the Victim Assistance Unit. She has provided information, support and referrals to witnesses for seven years. She described Mr. Cannon on the morning of September 30, 2011 as being in the worst shape of anyone she had ever seen. She said he was a “real mess”, biting his nails, with his chair facing into the wall and not replying. He felt he was going to be sick, was crying and upset and appeared to be very fragile. Ms. Trotman, his fiancée, described that Mr.

Cannon sat in the corner with his head down, crying or with his head on the table. She was required to convince him to stay and finish his testimony. [ 69 ] On the morning of September 30, 2011 Detective Harris said that, unlike other days, Mr. Cannon was not ready and Detective Harris was required to go to Mr. Cannon’s hotel room to get him. Mr. Cannon was groggy, dejected and crying after seeing his photograph on the front page of the newspaper. Detective Harris actively encouraged and finally persuaded Mr. Cannon to attend court. Once in the court’s anteroom, Mr.

Cannon was sobbing uncontrollably, hyperventilating, and was so distraught that at one point he was curled up in a fetal position. At another, he held the garbage can to his mouth as if to throw up. [ 70 ] Third, the security camera’s videotaped footage of the court proceedings from that morning was in evidence. It is taken pointed from above the judge’s bench looking into the public gallery, on a somewhat downward angle. The witness box is not visible on the video, and the frame has Defence counsel at the podium on the bottom.

The public gallery is in full view so that the faces of those in attendance are visible. The video was used in the examination of all witnesses on this allegation. It had a zoom function which was used to increase the size of the images. I have also reviewed the videotape. [ 71 ] The available video footage comes in segments with gaps of approximately two minutes between the segments. There is therefore no continual loop of footage as might be expected.

Thus if a witness reported seeing something, and such is not found on the video in evidence, no fair inference against that witness can be drawn. [ 72 ] Fourth, it is established, and is accepted by the Crown, that Detective Harris made head movements during the course of Mr. Cannon’s testimony. Certainly the motions made by Detective Harris while in court on September 30 were sufficiently consistent and concerning that two persons watching the trial from the gallery reported them immediately to Defence counsel. While a review of the

videotape shows that most spectators move in court, the motions of Detective Harris were more frequent and more pronounced and included more repetition of the same type of motions. Upon seeing the video for the first time, Detective Harris was very surprised that he moved as much as, and in the manner he did. He adamantly denied that any of his actions were related to attempted communication with Mr. Cannon. [ 73 ] With these acknowledged facts the real issue is what is to be made of Detective Harris’s conduct: what meaning is to be attributed to his actions?

Care is required as gestures are inherently equivocal and may have many different purposes, sources, goals and effects. The burden of proof is on the Defence not only to establish that there was abnormal or exaggerated behaviour, but that it involved communication or attempted communication with the witness such that there was a deleterious impact on the integrity of the judicial process. Communication implies and involves some level of contact and understanding between two people. The very concept of signalling suggests a sequence with a cause-and-effect dimension.

The clearest case would involve the Defence asking a question to the witness, the coach making a gesture; followed by the witness responding in a manner that conformed with the coach’s gesture. [ 74 ] Two of the three eyewitnesses to Detective Harris’s movements, being Ms. Williamson and Ms. Lorenz, formed the opinion that Detective Harris was communicating with the witness. [ 75 ] Ms. Williamson was in the court for part of the morning on September 30, 2011. When she was sitting behind Detective Harris she testified that she personally observed him making five pronounced sets of head motions.

All involved an up and down motion, a gesture associated with the affirmatives. This occurred over a twenty minute period of time. She became alarmed and directed her attention to the Detective. [ 76 ] Ms. Williamson prepared an affidavit in which she first outlined the specific times she claimed to have witnessed head nodding by an individual she described and which both the Crown and Detective Harris admits is Detective Harris. She repeated this evidence in her viva voce testimony (by agreement of counsel, it is Ms.

Williamson’s viva voce testimony and not her affidavit which is the evidence before the court.) Ms. Williamson referenced 5 specific times on the videotape that she saw such motion: being 11:05:04; 11:11:11; 11:11:22; 11:13:12; and the 2 seconds between 11:14:14 and 11:14:16. At the time clip 11:11:11, Ms. Williamson was looking away and in cross-examination she admitted that she did not personally see that reported motion. [ 77 ] She also reviewed the videotape of the court proceedings at the Defence counsel office.

As noted that video is taken from the front of the Court and has a very different perspective than what she could have seen herself. The Defence law office gave her a list of times where the Detective made some movements. Ms. Williamson was asked to assess whether she saw those movements. She then swore an affidavit in which she set out times the Detective nodded when she was in the Courtroom in one Appendix. In another Appendix she listed nine other times when, after reviewing the videotape, she viewed Detective Harris nodding his head.

While she acknowledged there were difficulties with the times recorded in the affidavit, she readily admits she did not see these movements as she was not in the court at those times. Of course, Ms. Williamson was in no better position than the Court to review the portion of the videotape that recorded what happened when she was not in the court, except to this extent: she testified that the movements she saw solely from the videotape were consistent with the head nodding she personally witnessed. [ 78 ] In the four instances she witnessed, she believed that Mr.

Lutz was asking a yes or no type question, that the Detective nodded in the affirmative, there was a delay and the witness answered in the affirmative. In neither her personal observation or her review of the videotape did she see any head motion in the negative, or that involved the witness then answering in the negative. Ms. Williamson formed the view that the Detective was directing the witness, telling the witness how to answer, and interfering with the cross-examination. [ 79 ] At the break, just before 11:30, Ms. Williamson informed Mr. Lutz of her observations.

She told him because she knew him from the time when he was a mentor with an organization with which she was affiliated. [ 80 ] After that break, Detective Harris came in after her and was sitting behind her. She was unable to see his activities during this period. [ 81 ] Mr. Malik, a lawyer sitting behind Detective Harris and watching from the public gallery, also saw the Detective make hand and head movements over both the same and a different period of time. Mr. Malik was sitting on the right, on the second to last pew from the end, close to the isle. Detective Harris was sitting in front of him, to Mr.

Malik’s right-hand side. At this point, Mr. Malik saw Detective Harris move his head up and down or side to side in what he thought was a fairly exaggerated manner. He stated that it seemed that the witness was looking in the Detective’s direction and that the Detective was looking in the witness’s direction. He also conceded in cross-examination, while he himself was in the witness box, that most people in the public gallery are looking at the witness. What

concerned Mr. Malik was the distracting body language, which was taking place in the context of a cross-examination. He watched for some time and first became concerned and then disturbed by the pattern he was seeing. [ 82 ] In terms of timing, Mr. Malik said that the witness was obviously emotional and it took the witness some time to answer the questions posed to him. However, Mr. Malik did not commit to a particular time sequence and spoke of Detective Harris’s body language occurring at or around the time that an answer is given, or at or around the time the question is asked of the witness. Mr.

Malik agreed that he was not in a position to say that the way the questions were asked were in direct relation to the movements that he saw. [ 83 ] After a break, Detective Harris had changed seats and was sitting in the last pew under the courtroom sign, behind Mr. Malik. The Defence asked a question about how wide a door was open. Mr. Malik saw Detective Harris move his hands like he was measuring the distance, from palms together to palms apart, with his hands in a relaxed position and to a width of approximately 30 cm. I accept that Mr.

Malik saw this hand gesture, even though it was not mentioned in his prior affidavit. Mr. Malik could only say that this hand motion was done very close to the answer being given. He could not say whether the motion was intentional or even if the witness saw such movement. [ 84 ] Mr. Malik testified that even though he had never seen such behaviour in the many times he has sat as a spectator in various courtrooms, he did not know what was intended. Mr.

Malik fairly acknowledged that he could not, as a matter of fact, say whether or not Detective Harris was signalling to the individual who was on the stand, whether any communication was received, or whether or not any testimony was altered. [ 85 ] At the same break, not knowing any of the lawyers involved, Mr. Malik chose to approach Mr. Lutz to report his observations. He made it clear to Mr. Lutz that he did not know what the individual was intending but that he had witnessed some fairly exaggerated body language. Mr.

Lutz told him he would say something or notify the clerk. [ 86 ] Thus at a break around 11:30, two individuals separately informed Mr. Lutz what they had seen and the signalling they feared was occurring. Neither spoke with anyone from the Crown. All counsel from both Crown and Defence were facing the witness box and the front of the Court during Mr. Cannon’s testimony. All testified they were unaware of any movements behind them. [ 87 ] After receiving this information, Ms. Serink approached the Clerk, Ms. Lorenz, and asked her to watch for possible signalling. The Clerk’s table faces the public gallery.

While Ms. Lorenz had not noticed any concerning behaviours earlier in the morning, she was busy with her many functions and her computer screen blocked her view. When Ms. Serink asked Ms. Lorenz to watch for such behaviour, she agreed. Ms. Lorenz says Ms. Serink did not describe the person alleged to be signalling, but Ms. Serink says that she did so describe the individual. On this point I accept the evidence of Ms. Serink. It is more likely that a description was given as the court room was very busy and Ms.

Serink can be expected to have wanted to provide full information in an attempt to be as helpful to the clerk as possible. [ 88 ] Mr. Lutz continued to cross-examine Mr. Cannon after that break ended. After Ms. Williamson and Mr. Malik had informed the Defence of their concerns, Mr. Cannon was not cross-examined on the subject of possible communication. [ 89 ] When court reconvened, Ms. Lorenz testified that she saw Detective Harris sitting in the back row of the courtroom, underneath the court room number sign on the side closest to the witness box.

She saw Detective Harris making significant head motions on more than one occasion and in more than one direction: both up and down, as well as side to side. She said that after Mr. Lutz had asked a question, there would be a an up-and-down from Detective Harris and then the witness answered in the affirmative. When Mr. Lutz asked another question, Detective Harris nodded his head left to right, as if to signify the negative, and Mr. Cannon gave a negative answer. In court, the videotape was played for Ms. Lorenz for the first time.

It appears that what she observed took place in the eight and one half minute period between 11:47:25 and 11:55:58, at which latter point Detective Harris left the courtroom. [ 90 ] At the next following break, Ms. Lorenz described the conduct she observed to Ms. Serink. While Ms. Lorenz reported back to Ms. Serink what she saw, she did not inform the Court about these matters. Just when she was about to stand up and say something to the Court, Detective Harris left the courtroom. Ms. Lorenz testified that she was assured, she believes from Mr.

Lutz, that he would raise the matter with the Court, so she did not say anything further. At a later point, Ms. Lorenz wrote a letter to her supervisor. That letter found its way to me, for the first time, right before Court convened. Copies of that correspondence were provided to counsel on the stay

application that same day, as soon as they were able to attend court to receive it. [ 91 ] Detective Harris is a 15 year veteran police officer with extensive experience managing fearful, reluctant and anxious witnesses, in part gained with the Domestic Conflict Unit. Detective Harris had limited involvement in the Paxton case, other than his transportation duties for out-of-town witnesses. He had some familiarity with what Mr.

Cannon told Detective Crippen as he verified the transcript from that interview. [ 92 ] Detective Harris said that he was not aware of his gestures until seeing them on the video, but explained that they were involuntary body movements. Detective Harris claimed that his head nods were a natural response to what was said and testified that he was not trying to send signals or communicate to Mr. Cannon, nor even to catch his attention. He had no plan to help Mr. Cannon in direct or cross-examination.

He says that he did nothing wrong and he was not providing any answers. [ 93 ] According to Detective Harris, as confirmed by Ms. Trotman, he and Mr. Cannon were never alone, they only engaged in small talk and at no point did they discuss the specifics of Mr. Cannon’s proposed testimony. Detective Harris provided to Mr. Cannon the advice he gave to all witnesses. That is: to tell his story, tell his whole story, tell the truth, and, to reduce anxiety created from the public gallery, to look into the eyes of the person asking the questions. [ 94 ] Detective Harris was not in the courtroom for all of Mr.

Cannon’s testimony. While in court, there were extended periods of time during which Detective Harris was looking down at his work and not making any eye contact with the witness. Indeed, Detective Harris testified that he made no eye contact with Mr. Cannon. Detective Harris also moved around and sat in different locations in the courtroom. The Defence says that was because he sought a direct line of sight with Mr. Cannon. The Crown argues that this is evidence that Detective Harris was indifferent to where he sat.

Detective Harris testified that he did not care where he was sitting and that he chose places to meet the needs of his other work and to ensure prominent places were given to Ms. Trotman and Ms. Nyberg. His goal was to ensure that someone was in the courtroom to support Mr. Cannon. He testified that he thought his mere physical presence in court, wherever he was sitting, may provide some support to Mr.

Cannon. [ 95 ] Although Detective Harris could not say exactly when in any sequence he was nodding, after viewing the tape and assessing his own behaviour, he gave evidence that he was probably nodding after the answer was given. Detective Harris thought that it was natural, given his general background knowledge of the evidence Mr. Cannon gave in the police interview, that he would be reacting to an answer that he heard Mr.

Cannon give if it was consistent with what he had transcribed. [ 96 ] The Defence argued that Detective Harris’s evidence should be rejected because he has an interest in the matter; that his belief that he was nodding in response to answers already given is inconsistent with his claim that his motions were involuntary; and that he did not give his best effort when asked if he could see the courtroom number sign under which he was sitting during part of the testimony of Mr. Cannon, when Detective Harris was himself standing in the witness box.

The Defence also argues that his claim that his physical presence in the courtroom alone, whether or not Mr. Cannon could see him, could provide support to the witness made no sense. [ 97 ] In cross-examination, the Defence challenged Detective Harris on the basis that if these were unconscious motions how can he say that he was responding. Detective Harris explained that from his experience conducting interviews he thought that he generally nodded to acknowledge a response and to keep people talking. When he saw himself on the tape he assumed he was engaged in a similar behaviour.

At one level there is a logical problem in saying that he was probably reacting to Mr. Cannon’s answers by his head motions when he said the motions were not intended and involuntary: how could he know when he was doing something he did not know he was doing. I believe the answer is that after he reviewed the tape and understood that he was moving he was trying to ascertain what caused him to do so. He clearly stated that he was not coaching or communicating with the witness.

He tried to figure out why he was making those motions and surmised that, in accordance with what he knows about how he uses head notions to encourage people in interviews to continue talking, that he was probably doing that in this case. While perhaps an ex poste explanation, it is not a fabricated justification: I believe it is a genuine attempt to explain movements he was not conscious he made. [ 98 ] At another point the Defence addressed whether a witness in the box could see where Detective Harris was sitting, when he sat at the back under the courtroom number during Mr. Cannon’s testimony.

The Defence asked the Detective what he could see and he said he could not see through counsel. He then moved his head and could see to the relevant spot. Defence counsel made the point that a head movement would not be required to view that area and the Detective stated that he could also have simply moved his eyes to see the same relevant spot. [ 99 ] This exercise has little probative value in terms of trying to discern what Mr. Cannon may have been able to see on the day in question. What Mr. Cannon could have seen would depend on whether he was seated, bent over or standing; where he was positioned in

the witness box; where Mr. Lutz was standing in relation to the podium; their relative heights and each of their head positions. [ 100 ] However, the Defence argues that the Detective was in essence playing games and trying to create an impression that was not accurate, such that his testimony should be disregarded. I do not accept that the Detective’s response was a stratagem. There were various ways in which the sign could be seen and his answer simply illustrated those potential ways. [ 101 ] I accept Detective Harris’s explanation that he went into the courtroom to support Mr. Cannon. From all accounts Mr.

Cannon was an emotional witness who needed the combined and continuous support of his fiancée, Court Service personnel, Detective Harris and Crown counsel to complete cross-examination. I also accept that support can be given by physical presence alone. Lawyers and judges spend much of their professional lives in the courtroom, witnesses generally do not. Anxiety is commonplace and the entire purpose behind Victim Support Services is that the process of giving testimony may be less intimidating if someone is there to explain and support a witness.

The underlying notion is that the physical presence of someone else may be reassuring to the witness. [ 102 ] Despite being challenged, I conclude that Detective Harris withstood cross-examination. I believe Detective Harris when he says that he was not engaged in any form of communication with Mr. Cannon and that he remained in court to provide support. Rather than interfering with the witnesses’ testimony or otherwise attempting to undercut the integrity of the trial, I find that Detective Harris exercised his professional skills to ensure that Mr. Cannon respected his subpoena when Mr.

Cannon became increasingly reluctant to continue with cross-examination. [ 103 ] There are also certain facts which further suggest and support that no signalling was taking place. Not only was there no joint scheme or plan formulated in advance to communicate in the courtroom, there appeared to be no opportunity to establish a plan for communication. The Crown called evidence in an attempt to account for almost every interaction between Mr. Cannon and Detective Harris. That evidence, elicited from Detective Harris and confirmed by Ms. Trotman, was that Mr.

Cannon and Detective Harris were never alone, they engaged in nothing but small talk and that there was never a discussion of the evidence Mr. Cannon was about to give. In short, there not only was no scheme, there was no opportunity to set up a method or system of communication in place before Mr. Cannon testified. Without such a pre-arranged plan, it is not obvious why Mr.

Cannon would be looking towards Detective Harris for any answers. [ 104 ] As is apparent from the video, and according to Detective Harris and the witnesses examined on the matter, Detective Harris was out of the courtroom for approximately half an hour during Mr. Cannon’s cross-examination that morning. When in court, Detective Harris was working on other things. He looked distracted and engaged with his Blackberry, notebook and papers: one would expect the coaching of a witness would require and command more attention.

Further, the video shows not only that Detective Harris was looking down and working, but that sometimes he would look up at various points in the testimony, a motion similar to a head nod. [ 105 ] The Crown argued that communication cannot be effectively elicited from a simple system of positive or negative head gestures: that head nods are ambiguous and are prone to detection. The system as alleged would simply be inadequate to the task of controlling any witness. The Crown’s argument that head nodding would have been an unsophisticated and risky method of communication is an accurate observation.

However, it leads to the same place as the argument that an accused would never have been foolish enough to engage in the conduct forming the subject matter of the charge. [ 106 ] Nevertheless, the Crown makes a good point when it argues that even though a cross-examiner often seeks affirmative answers to suggestions put to witnesses, that Mr.

Cannon’s answers at the time Detective Harris was seen to be making head movements were complex, involved more than yes or no responses and contained elaborations and details which could not be produced through coaching. [ 107 ] Quite apart from Detective Harris’ testimony, the Crown argued that the Defence has failed to meet its burden to prove that Detective Harris was tampering with the witness as there was simply no evidence of manipulation and no evidence of a conscious and deliberate plan to affect Mr. Cannon’s testimony.

A key feature of what is lacking is proof that the motions were in response to questions posed and that Mr. Cannon saw and responded to those gestures. There are critical gaps in the evidence in relation to the sequence of events. [ 108 ] In terms of sequence and timing, all counsel were informed on the record that the daily transcripts of evidence has a timestamp feature. Both Crown and Defence agreed that it was not possible to synchronize the time stamp on the transcript with the times recorded

on the security tape. In the result, no reliable evidence could be obtained about the timing of Detective Harris’s head gestures in relation to the questions asked. Indeed, any such exercise may have proved misleading. [ 109 ] Even though two witnesses believed there was such communication, the nature of this evidence combines observations with the process of making inferences and drawing conclusions about what was occurring based on the behaviour they saw.

In terms of observations courts often consider the quality of the observation in terms of vantage point, the individual’s opportunity and capacity to observe, as well as considering the frailties of eye witness testimony. Drawing inferences, forming opinions and reaching conclusions from those observations involves a more subjective process. People may base their beliefs on their own personal set of factors and interpret what they saw in any manner they choose. However, a court must consider all the evidence and ask what, in light of all the circumstances, is the most probable or likely occurrence. [ 110 ] Mr.

Malik, although very concerned, frankly admitted that he could not say what the intention was, whether there was any signalling and whether there was in fact any communication between Detective Harris and Mr. Cannon. For example, it is possible that the hand gestures seen by Mr. Malik could have been Detective Harris showing the witness what his answer should be. Alternatively, the Detective could have been reacting to testimony already given. He could have been using his hands to measure, to get a picture, and physically assess what Mr.

Cannon had just said, to better understand what vantage point a person may have had through a door open the described distance. [ 111 ] Similar questions arise in relation to the balance of probabilities and the inferences drawn by Ms. Williamson and Ms. Lorenz. For example, Ms. Williamson first claimed to have personally seen head motions at 11: 11, but acknowledged she was looking away at the time. Ms.

Williamson’s review of the videotape before she signed her affidavit may have melded or fused together what she personally witnessed when seated behind Detective Harris and what she saw on the video when looking directly at him. Similarly Ms. Lorenz was asked by Ms. Serink to watch for signalling, a particular activity, involving a particular person, described to her by Mr. Serink. When Ms. Lorenz reported back to Ms. Serink, Ms. Serink confirmed that what Ms. Lorenz saw was what other people had seen as well. Ms.

Lorenz stated that the nodding in the witness answering happened almost at the exact same time, but the witness was delayed, like a second behind. However, she also said that she made that assessment while she was looking directly at Detective Harris and listening to the question, but that she was not looking at the witness during this time, as she could only focus on one person at a time. In short, Ms.

Lorenz, while also required to perform other functions, was asked to look for specific behaviours, watched the Detective only and interpreted them in a manner consistent with the request. [ 112 ] While I accept the evidence of what people saw, I have reached my own conclusions as to what was happening and the meaning to be attributed to Detective Harris’s acknowledged movements.

In conclusion, while the distinctive movements of Detective Harris were sufficient to draw the attention and even concern of some who saw them, I accept Detective Harris’s explanation and find that there was no attempt to communicate with or suggest answers to a witness. The claimant has not met the burden of establishing attempted or actual communication with the witness. [ 113 ] The Defence acknowledged that if communication was found, such would be a factor when weighing Mr. Cannon’s testimony.

They also argue it may be considered as part of the constellation of circumstances they argue in support a judicial stay. There is however, no evidence that Mr. Cannon’s testimony was in any way affected by Detective Harris. Nor are there grounds to exclude Mr. Cannon’s evidence on the basis that it is in part the product of a constitutional violation. [ 114 ] Some general comments are required before leaving this topic. [ 115 ] First, I thank the people who came forward with their observations and concerns.

It is crucial that any such concerns are raised, explored and dealt with at the earliest possible opportunity. When subsequently asked by the Defence, the Court ordered the production of the Court security videotape at public expense because any attempt to influence, tamper with or threaten a witness is a public issue that goes to the heart of our system of justice. The integrity of the trial process is the shared goal of all. Many steps are taken to protect the reliability of the testimony given by witnesses, including in the case at bar placing a screen between Mr.

Paxton and D.L.. [ 116 ] It is to be regretted, however that these observations and concerns were not brought to the attention of the court at the time of their occurrence so they could be explored and dealt with then. The Crown argues that the Defence made a tactical decision not to raise any concerns over witness coaching until bringing their stay application.

[ 117 ] Both Mr. Malik and Ms. Williamson felt, and I agree, that they had discharged their civic duty and acted with diligence and dispatch by bringing their concerns to the attention of Mr. Lutz at the first available opportunity. Mr. Malik testified that he did not inform Crown counsel because he assumed that if he told one lawyer, that lawyer was going to tell the other lawyers. He thought that telling one lawyer was as good as telling all of them. Mr.

Malik was somewhat surprised after the break to see Detective Harris was still in the courtroom because he made the assumption that an application would be made to have the individual removed given the concerns that he had raised. [ 118 ] The Defence was aware that two people had brought concerning behaviours to their attention by 11:30 in the morning. Ms.

Serink testified that after the Defence was so informed, they went in with their client, and then asked the Clerk to watch for signalling when they recommenced cross-examination. [ 119 ] The Court heard nothing until the Defence asked the Court to order the videotaped footage of the Court from that day, which the Court did on October 19, 2011. At that point only the most general outline of the Defence concerns were raised that “there was something going on”. It appears from the statements made at the time by Mr.

Lutz on the record that as of October 19, 2011 the Defence was planning and perhaps committed to “our voir dire when we deal with the other issues with respect to concerns we have about this”. The next the Court heard of any of this matter was when the Defence took their stay application and filed Ms. Williamson’s affidavit in support. Ms. Lorenz did not inform the Court and the letter to her supervisor did not make it into my hands until November 30, 2011. Ms. Lorenz never told anyone from the prosecution team what she saw. The Crown learned of the allegations when the affidavit of Ms.

Williamson was first filed in support of the stay application. [ 120 ] When asked about the delay, the Defence explained that it was in the midst of a difficult cross-examination and wanted to be sure as these were serious allegations. At one level this is understandable. However, such matters should be drawn to the court’s attention when they arise. Having concerns communicated from two separate individuals seated in the public gallery would most clearly be seen as a sufficient basis to raise the issue.

On this topic, the raising of concerns does not require proof by affidavit, and the evidence is that the Defence was sufficiently confident of the information obtained that they asked the court clerk to watch for signalling. Later on September 30, 2011 Mr. Lutz, in the presence of Ms. Serink, told Mr. Mercier that Detective Harris should not be in the courtroom throughout the remainder of the trial. This suggests the Defence had sufficient confidence in its information to warrant taking the exceptional step of seeking to exclude someone from a public trial. When questioned about this, Mr.

Bates argued that Detective Harris’s exclusion was justified on the basis that he was a potential witness. However, Detective Harris was not on the indictment, he had a limited role in the trial and it is not readily apparent why he would have been called in relation to any investigative work conducted in respect for example of the photographs of Ms. Ness. [ 121 ] There are many avenues open to the court to address concerns about communication with a witness but the concerning behaviour needs to first be drawn to the attention of the Court. The Court can make inquiries, as it did when Mr.

Lutz asked D.L. who he was looking at in the courtroom. Such would have been of some assistance as Mr. Cannon was not cross-examined about potential signalling. Had the Court been informed about a signalling issue, the witness would have been given the opportunity to respond and the Court would have been in a position to assess whatever answer was provided. Similarly, the Detective could have been asked what he was doing, even under oath if necessary. A caution or admonishment may have been warranted and sufficient.

The Court has a good vantage point to watch what is going on and should be kept apprised of issues that go not only to control of the court but the integrity of a witness’ testimony. [ 122 ] It is the role of all counsel to ensure a fair trial and to act in real time to protect that right. So that every incentive exists to deal with any such issue at the time, and to allay any suspicion that facts known to one side are retained for strategic purposes, such matters cannot take on increased significance with the passage of time or if left to the end of the trial. C. The Charges and Warrants of Mr.

Robert Cannon [ 123 ] Further facts are necessary in relation to this set of allegations. [ 124 ] Mr. Cannon testified that he left Calgary in a hurry in July 2009. He owed rent money to Mr. Paxton and went out “car hopping”- breaking into cars to steal money to gather the funds necessary to settle his debt. He was stopped by the police and escaped from them. This gave rise to a charge dated July 5, 2010. [ 125 ] Mr. Cannon had a criminal record, arising from matters in Ontario and New Brunswick and including prior thefts, failures to

appear and an obstruction charge. He had received jail time for thefts in the past in Ontario. [ 126 ] He also had outstanding charges in Calgary concerning three charges of theft; a resist arrest and various failures to appear. [ 127 ] When he left Calgary he missed two trials, scheduled for December, 2009. On some of those charges he was subject to non- extendable 511 warrants issued by a Provincial Court Judge. That means that unless Mr. Cannon came into Alberta, such warrants would not be executed in Ontario.

Technically with a 511 warrant, the accused was to be brought before the particular judge who made that order. See Davidson , 2004 ABCA 337 , 357 AR 353. [ 128 ] When Mr. Cannon came forward as a witness he informed Detective Crippen that he had these outstanding matters in Calgary. Both he and Detective Crippen testified that Detective Crippen told Mr. Cannon that Mr. Cannon would be required to deal with these charges while in Calgary. Both say that Detective Crippen did not make any promises about how those charges may be resolved. Both Detective Crippen and Mr.

Cannon gave evidence that there was no deal that Mr. Cannon would avoid jail. Mr. Cannon said he was given nothing in exchange. [ 129 ] Detective Crippen initially spoke with Mr. Cannon on a Sunday night. After that brief conversation Detective Crippen informed Mr. Mercier that Mr. Cannon was concerned about outstanding warrants in Calgary. Mr. Mercier said that he would review the information and get back to him the following day. Mr. Mercier reviewed the files of Mr. Cannon’s outstanding matters.

In his opinion, based on the date and nature of the charges, the low amounts involved on two of the charges and the difficulty of proving some of the charges, he thought Mr. Cannon would not likely receive a sentence involving imprisonment and may receive a suspended sentence, with the dropping of some charges. [ 130 ] Detective Crippen said he conveyed that information to Mr. Cannon and I accept his evidence on the point. [ 131 ] There is, however, incomplete evidence on whether Detective Crippen told Mr. Mercier that he had relayed Mr. Mercier’s information to Mr. Cannon.

The question was asked “did you have a discussion with the Crown prosecutor’s office about what you were to convey to Mr. Cannon he could expect if he dealt with these matters?” Detective Crippen answered that he didn’t recall specifics of any conversation. Mr. Mercier said he assumed the information he provided to Detective Crippen was passed on to Mr. Cannon. [ 132 ] Mr. Cannon testified that although he had a return air ticket to Ontario, that he understood he was facing possible jail time and may not have been returning on that plane. [ 133 ] Mr. Mercier asked his assistant to bring Mr.

Cannon’s matters into court for September 29, 2010. The bring forward slip, which is the means by which the Crown brings outstanding matters into court, was dated September 26, 2011. It was said to be for the purpose of dealing with warrants. [ 134 ] The routine practice, followed in this case with respect to all Crown witnesses, was that the Crown would meet with a witness in what they called a “meet and greet” session. Basic information about the courtroom process and testifying was discussed at such sessions. [ 135 ] For Mr.

Cannon that meeting was held on September 27, 2010, in the Crown office and after court had concluded for the day. [ 136 ] While people had different recollections about who was at this meeting I find that the following persons attended: Mr. Mercier, Ms. Tejpar, Detective Crippen, Detective Harris and Mr. Cannon. [ 137 ] Mr. Cannon’s outstanding charges and warrants were discussed as the process was in place to deal with them in Provincial Court on September 29, 2010.

[ 138 ] Mr. Cannon was subpoenaed as a witness. [ 139 ] The Defence asked for the disclosure of Mr. Cannon’s criminal record. [ 140 ] Mr. Mercier asked Ms. Judith Harrison to respond and mentioned that he had Mr. Cannon’s files and instructed Ms. Harrison to send them. [ 141 ] The disclosure provided answered, and went beyond, the Defence request for Mr. Cannon’s criminal record. Disclosure included Mr. Cannon’s then current charges. The latter was done by reference to the PIMS system, which all involved would, or could reasonably be expected to know relate only to the underlying charges.

The PIMS system does not indicate whether the matter is at warrant. [ 142 ] On receipt of the Crown’s letter containing PIMS based information, no further request was made by the Defence. [ 143 ] In examination-in-chief on the morning of September 28, 2011, Mr. Cannon outlined his outstanding criminal charges and said that he had missed court dates in December. [ 144 ] In cross-examination on the afternoon of September 28, 2011 the Defence quickly elicited that certain matters were at warrant status. That Mr. Cannon faced the jeopardy of being arrested by a police officer or the Sheriff was also fully explored.

Mr. Cannon understood he could be arrested on the warrants. The full circumstances under which he returned to Calgary were pursued at great length and with some intensity. Mr. Cannon was adamant that there was no deal or arrangement that he would testify in return for a lighter sentence and he withstood extremely vigorous cross-examination on this point. Like I said, there’s no help here. It’s just all me. I don’t know what you’re trying to get at, but I don’t understand what you’re trying to say. Like I had no help. It was all me voluntarily. No one told me, oh, you come out here and do this, we’ll do that.

No, none of that happened. P.395, l. 5-10. [ 145 ] Mr. Cannon also said that he knew he could have gone to jail: Me going to court, I was well aware of me going to jail, doing jail time. But I talked to duty counsel and told him everything that I’m doing up to date in my life, and I put out the information, and I knew at all costs that I might have to do jail time. And it turned out that it wasn’t, and I’m very happy for it, but it’s not my control. It’s not – no one did anything for me. I was completely there myself to do it.

P.389, l. 19-23. [ 146 ] Similarly, Detective Crippen said that no promises whatsoever were made and no deal or arrangement existed to go light on Mr. Cannon in exchange for his becoming a witness. [ 147 ] The Defence took the position that it ought to have been told that Mr. Cannon was testifying while at warrant status: a rare occurrence which Mr. Lutz had never seen before. Mr. Lutz, and to some extent Ms.

Serink testified, referring to their concerns, fears, and the theories they developed from them: most of which likely began when they believed this information had been withheld from them. [ 148 ] There were several meetings in which the Crown and Defence discussed the matter of Mr. Cannon, his warrants and charges. There are different recollections of when they occurred and the particulars of what was said but these are the product of human memory and raise no concerns about credibility.

[ 149 ] In those meetings the Defence took the view that Mr. Mercier was in a conflict position because of his dealings with the outstanding Cannon charges. They feared and explored the existence of an arrangement under which Mr. Cannon was given special treatment on those charges in return for his testimony. While such arrangements are not prohibited, they are subject to certain protocols, to ensure that they are disclosed to Defence and the Court so that the witness’s evidence can be both tested and weighed with full knowledge of all relevant surrounding circumstances. [ 150 ] Mr.

Mercier explained to them that he had reviewed the files, told Detective Crippen that a suspended sentence was a possible result and assured them there was no arrangement. [ 151 ] Not only were trained advocates arguing among themselves, the dispute concerned the conduct of Mr

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