R. v. Kelly, 2019 NLCA 23

Sean Kelly (appellant) v. Her Majesty the Queen (respondent) (17/81 and 17/82) Indexed As: R. v. Kelly 2019 NLCA 23 4 C.A.N.L.R. 329 Court of Appeal of Newfoundland and Labrador Welsh, White and Hoegg JJ.A. April 11, 2019

Summary: The appellant, Mr. Kelly appealed the decision of a

Summary Conviction Appeal Court (SCAC) Judge upholding his convictions and sentence for making an indecent phone call and public mischief and his sentence of 10 months’ imprisonment. He argues the SCAC judge correctly determined that the lower court (PCJ) made errors, but erred in applying the curative proviso. The Crown cross-appeals arguing the SCAC judge erred in finding that the PCJ erroneously admitted Mr. Kelly’s statements to police officers and similar fact evidence of other indecent phone calls Mr. Kelly made. Held: Leave to appeal granted, appeal dismissed, cross-appeal allowed.

Hoegg J.A. (Welsh and White JJ.A. concurring): At the commencement of the appeal hearing, the Court granted leave to appeal to Mr. Kelly and leave to cross-appeal to the Crown. All of the issues in the appeal raise questions of law. From a practical point of view, the issues raised in the Crown’s cross-appeal ought to be decided before the issues raised in Mr. Kelly’s appeal. The admissibility of a defendant’s statements made to persons in authority depends on whether the statements were voluntarily made. If the statements are determined not to have been made voluntarily, they are not admissible.

The SCAC Judge’s decision suggests that he concluded the Crown had not proved Mr. Kelly’s statements to have been voluntarily made because not all of the interactions between the police and Mr. Kelly had been documented or recorded. The PCJ found that Mr. Kelly was not under investigation or viewed as a suspect until December 4, 2012. Until then, Mr. Kelly was a colleague working in the same detachment as Staff Sergeant Elliott, and whom Staff Sergeant Elliott, according to the evidence, viewed as a witness but was seeking to exonerate. The reality is that when Mr.

Kelly made the statements alleged to be involuntary, he was considered a witness and not considered a suspect by Staff Sergeant Elliott. In the context of this case, there is no rule of law that requires documenting or recording all interactions with a person, like Mr. Kelly, who is viewed as a witness at the time he or she made the statements, but who later becomes a suspect or defendant. The SCAC Judge erred in law by misapprehending and misapplying the law respecting voluntariness in ruling that Mr.

Kelly’s statements were not voluntary merely because some of his interactions with police were not recorded or documented. Moreover, Mr. Kelly’s false and deliberate implication of another person as the offender, made in his written statements to Staff Sergeant Elliott, constituted the actus reus of the mischief offence. The voluntariness rule does not apply to information which constitutes the actus reus of a different, and theretofore non-existent, offence. The SCAC judge erred in law by failing to find that the voluntariness rule did not apply to Mr.

Kelly’s statements insofar as they provided the foundation for the mischief charge. At the voluntariness voir dire , Mr. Kelly also argued that the written statements were obtained in violation of his right to silence as protected by

section 7 of the Charter . The issue before the PCJ was whether Mr. Kelly’s statements were provided as a function of a statutory obligation under the Royal Newfoundland Constabulary Act, 1992 , S.N.L. 1992, c. R-17 to follow lawful orders of his superior officers. The PCJ found that Mr. Kelly not only chose to speak to but initiated the conversations with Sergeant Buckle and Staff Sergeant Elliott

and chose to provide the November written statements to Sergeant Elliott. This is entirely consistent with the PCJ’s finding that thestatements were made voluntarily. There is considerable overlap between the confessions rule and the

section 7 right to silence. While afinding that a statement to the police was voluntary does not absolutely preclude a finding of a violation of the

section 7 right to silence,there is no basis to find such a violation in the present case. The SCAC Judge ruled that the PCJ had erred in admitting similar fact evidence because he considered the link between Mr. Kelly’spolice-issued phone and the calls made to other women in the first step of his admissibility analysis. The SCAC Judge said this wouldtend to confirm Mr. Kelly’s involvement which was an improper consideration at that stage. Evidence of similar acts committed by an accused is admissible if the probative value of the proffered similar fact evidence outweighs itsprejudicial effect.

As a general rule, if there is such a degree of similarity between the alleged similar acts that it is likely that they were committed by thesame person then the similar fact evidence will ordinarily have sufficient probative value to outweigh its prejudicial effect. The test foradmissibility when identity is in issue has two steps: the first step is to compare the similarity of the acts themselves, and if a high degreeof similarity is found, the second step is to consider whether the defendant is linked to the similar acts. The SCAC Judge erred in his analysis of this issue.

The fact that the calls to the complainant and two other women came from Mr.Kelly’s police-issued phone establishes a high degree of similarity to the evidence respecting the calls to the complainant, as well as alink to Mr. Kelly. Just because similarity is established by the involvement of Mr. Kelly’s police-issued phone in the calls does not mean that linkage cannot be established by thesame evidence. The “stages” test is meant to provide a useful approach to ensuring that a high degree of similarity and linkage to the accused exist beforeproffered similar fact evidence is admitted when identity is in issue.

The test is not meant to be applied as a rigid chronologicalformula. Rather, the lines can sometimes be blurred, and the same evidence can support each stage of the analysis. The SCAC Judge erred in law in ruling that the PCJ had erroneously admitted the similar fact evidence. He misapprehended the lawrespecting similar fact evidence and applied incorrect law to the PCJ’s decision to admit the similar fact evidence. There was no basis tooverturn the decision of the PCJ.

On the sentence appeal, it is well established in sentencing case law that law enforcement officers who break the law breach the publictrust placed in them, especially when the offence committed is related to the officer’s duties. Such breaches are regarded as serious, andcall for emphasis on denunciation and deterrence in sentencing. While a conditional sentence for making an obscene phone call could, onits own and depending on the facts and circumstances, be appropriate, the facts and circumstances of Mr.

Kelly’s obscene phone calloffence, demonstrate shameful on-duty conduct warranting a period of incarceration. Mr. Kelly’s conduct, by any measure, did involveabuse of his position as a police officer and breach of the public trust placed in him. The actions underlying his mischief conviction arereprehensible in and of themselves as well as antithetical to his duties and responsibilities to society as a police officer. A conditionalsentence would not serve the sentencing objectives of denunciation and deterrence. The service of Mr.

Kelly’s 10-month sentence in jailis more proportionate to the gravity of his offences than a conditional sentence would be. The basis for the PCJ’s decision to convict Mr. Kelly on both charges is restored. The SCAC Judge’s ultimate conclusion to uphold Mr.Kelly’s convictions and sentence is undisturbed. In these circumstances, it is not necessary to consider Mr. Kelly’s argument concerningapplication of the curative proviso. The sentence appeal is also dismissed. Cases cited: R. v. Jerrett, 2017 NLCA 65, 356 C.C.C. (3d) 285 R. v. Adams, 2011 NLCA 3, 303 Nfld. & P.E.I.R. 247 R. v.

G.B., (SCC), [1990] 2 S.C.R. 57, 56 C.C.C. (3d) 181 Mahoney v. R., (SCC), [1982] 1 S.C.R. 834 R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405

Piché v. R. (1970), (SCC), [1971] S.C.R. 23 R. v. Kelly, 2017 NLTD(G) 148 Sankey v. R., (SCC), [1927] S.C.R. 436 R. v. Magnowski, 2011 BCSC 967 R. v. Woodward (1975), (ON CA), 23 C.C.C. (2d) 508 (Ont. C.A.) R. v. Albrecht (1965), (NB CA), 49 C.R. 314, [1966] 1 C.C.C. 281 (N.B.S.C. (A.D.)) R. v. Plowman (1958), (NL SC), 28 C.R. 394, 123 C.C.C. 76 R. v. Stapleton (1982), (ON CA), 134 D.L.R. (3d) 239, 26 C.R. (3d) 361 (Ont. C.A.) R. v. Goulding (1997), (NL SC), 157 Nfld. & P.E.I.R. 16 Bellatrix Exploration Ltd. v. Penn West Petroleum Ltd., 2013 ABCA 10 R. v.

White, (SCC), [1999] 2 S.C.R. 417, 174 D.L.R. (4th) 111 R. v. Fitzpatrick, (SCC), [1995] 4 S.C.R. 154, 129 D.L.R. (4th) 129 R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 R. v. Jesse, 2012 SCC 21, [2012] 1 S.C.R. 716 R. v. Arp, (SCC), [1998] 3 S.C.R. 339, 166 D.L.R. (4th) 296 R. v. Sweitzer, (SCC), [1982] 1 S.C.R. 949, 137 D.L.R. (3d) 202 R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228 R. v. Webster, 2014 NLTD(G) 135, 357 Nfld. & P.E.I.R. 321 R. v. LeBlanc, 2003 NBCA 75, 264 N.B.R. (2d) 341 R. v. Cusack (1978), (NS CA), 26 N.S.R. (2d) 379, 41 C.C.C. (2d) 289 (N.S.C.A.) R. v. Greenhalgh, 2012 BCCA 236 R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500 R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 Counsel: Robby D. Ash, for the appellant; Sheldon Steeves, for the respondent. This appeal was heard on November 19, 2018 before Welsh, White and Hoegg JJ.A. The following judgment was filed on April 11, 2019 by Hoegg J.A. for the Court. ______________________________________________________________ Hoegg J.A.: INTRODUCTION [1] Sean Kelly appeals the decision of a

Summary Conviction Appeal Court (SCAC) Judge upholding his convictions and sentencefor making an indecent phone call and public mischief. BACKGROUND [2] While at work on the morning of October 17, 2012, A. H. received an obscene phone call from a male caller whom she could

not identify. She received a second call from the same man a few hours later, but could not recall whether the call was of a sexual nature. A. H. filed a complaint with the police. The calls were traced to the phone number of Mr. Kelly’s police-issued phone. At the time, Mr. Kelly was a Royal Newfoundland Constabulary officer. When the police officer who took A. H.’s complaint called the identified number, Mr. Kelly answered and spoke to the officer but denied involvement in the calls to A. H. Sergeant Buckle subsequently called Mr. Kelly at the same number and Mr.

Kelly answered and confirmed to Sergeant Buckle that he was not involved in making the calls to A. H. [ 3 ] A police investigation ensued and Staff Sergeant Elliott was assigned to investigate. In the following weeks, Mr. Kelly initiated several conversations with Staff Sergeant Elliott to inquire on the status of the investigation, all the while denying involvement in the matter. Mr. Kelly was not viewed by Staff Sergeant Elliott as a suspect. On November 21, 2012 Mr.

Kelly provided Staff Sergeant Elliott with a written statement and on November 23, 2012 provided written answers to Staff Sergeant Elliott’s follow-up questions. Mr. Kelly said in his written statements that he had lent his police-issued phone to an individual, Mr. X, on the date and at the times the calls were made to A. H. Staff Sergeant Elliott interviewed Mr. X, who denied ever using Mr. Kelly’s police-issued phone and denied any involvement in the matter. Mr. X also provided an alibi for the date and times of the calls made to A. H. Consequently, Mr. Kelly became a suspect. [ 4 ] Mr.

Kelly was subsequently charged with making an indecent phone call to A. H. (contrary to section 372(2) of the Criminal Code ) and with mischief for making a false statement intended to divert suspicion from himself or cause another person to be suspected of having committed an offence that the other person did not commit (contrary to section 140(1)(

b) of the Code ). [ 5 ] At trial in Provincial Court, the Crown tendered similar fact evidence which was admitted by the Provincial Court Judge (PCJ). The similar fact evidence related to obscene phone calls made to other women on other dates, which were also traced to the phone number of Mr. Kelly’s police-issued phone. The PCJ also admitted into evidence Mr. Kelly’s verbal statement to Sergeant Buckle and his verbal and written statements to Staff Sergeant Elliott. [ 6 ] On February 19, 2015, the PCJ convicted Mr.

Kelly of the charges, and sentenced him to 10 months in jail – four months for the breach of section 372(2) and six months for the breach of section 140(1)(b). [ 7 ] Mr. Kelly appealed his convictions and sentence to the Supreme Court of Newfoundland and Labrador, General Division sitting as the SCAC. A justice of the Supreme Court sitting as the SCAC Judge heard the appeal. He concluded that although the PCJ had erred in admitting into evidence the similar fact evidence and Mr. Kelly’s statements, the remaining evidence was “so overwhelming a court would inevitably convict”.

Accordingly, he applied the curative proviso in section 686(1)(b)(iii) of the Code and dismissed Mr. Kelly’s convictions appeal. The Judge also dismissed Mr. Kelly’s sentence appeal, referring to the PCJ’s findings that Mr. Kelly’s lying and falsely blaming of an innocent man was “planned and deliberate” conduct and a “breach of the public trust placed in him as a police officer”, and “so egregious that a conditional sentence would not achieve the denunciatory effect required”. THE APPEALS [ 8 ] Mr.

Kelly appeals the SCAC decision to this Court, arguing that the SCAC Judge erred in applying the section 686(1)(b)(iii) curative proviso to uphold the convictions. Mr. Kelly also argues that the SCAC Judge drew an inappropriate inference from and misapprehended some of the remaining evidence such that the convictions cannot be sustained. [ 9 ] In his written submission to this Court, Mr.

Kelly argued that if the result of the appeal and cross-appeal is that he is acquitted of mischief but remains convicted of making the obscene phone call, his four-month sentence for making the obscene phone call ought to be modified to a conditional sentence. He argued that the facts supporting the conviction for mischief weighed heavily in the SCAC Judge’s decision to uphold the 10-month jail sentence. At the appeal hearing, Mr.

Kelly’s submission on sentence expanded to the effect that even if both convictions were upheld, his 10-month sentence ought to be modified to a conditional sentence. [ 10 ] The Crown cross-appeals, alleging that the SCAC Judge erred in concluding that the PCJ had erroneously admitted into evidence both the similar fact evidence and Mr. Kelly’s verbal and written statements. [ 11 ] The Crown concedes that the SCAC Judge erred in relying on the curative proviso to uphold the convictions after excluding the similar fact evidence and Mr. Kelly’s statements.

This concession acknowledges that much of the evidence in support of the convictions is no longer available if the similar fact evidence and Mr. Kelly’s statements are properly excluded. [ 12 ] If the Crown’s cross-appeal is allowed on both issues, and the similar fact evidence and Mr. Kelly’s statements are restored into evidence, the PCJ’s decision would stand, the convictions would be maintained and there would be no need to decide Mr. Kelly’s appeal respecting the SCAC Judge’s application of the curative proviso. In light of the Crown’s concession noted above, it would also not be necessary to consider Mr.

Kelly’s grounds of appeal if the cross-appeal is dismissed on both counts. These circumstances suggest that, from a practical point of view, the issues raised in the Crown’s cross-appeal ought to be decided before the issues raised in Mr. Kelly’s appeal. ISSUES [ 13 ] The central issues are whether the SCAC Judge erred (1) in concluding that the PCJ erroneously admitted into evidence (

a) Mr. Kelly’s verbal and written statements and (

b) the similar fact evidence, and (2) in applying the section 686(1)(b)(iii) proviso to uphold the convictions. Mr. Kelly argues that resolution of the section 686(1)(b)(iii) issue involves determining whether the SCAC Judge erred (

a) in inferring the time zone applicable to the telephone records respecting the time of the indecent call to A. H. and (

b) by misapprehending the evidence of witnesses B. C., Tammy Kelly, Brent Kelly and the appellant, Mr. Kelly. Whether Mr. Kelly’s sentence ought to be served conditionally must also be decided.

LEAVE TO APPEAL [14] At the commencement of the appeal hearing, the Court granted leave to appeal to Mr. Kelly and leave to cross-appeal to theCrown, indicating it was satisfied the test for leave to appeal was met by both parties. Section 839(1) of the Code restricts appeals to thisCourt from decisions of a SCAC to questions of law alone in respect of which leave to appeal has been granted. Obtaining leave requiresthat the appeal has a reasonable possibility of success or the proposed question of law has significance to the administration of justice (R.v.

Jerrett, 2017 NLCA 65, 356 C.C.C. (3d) 285, at para. 6, and R. v. Adams, 2011 NLCA 3, 303 Nfld. & P.E.I.R. 247, at paras. 7-8). [15] Canadian law has consistently held that the admissibility of evidence is a question of law. In R. v. G.B., (SCC),[1990] 2 S.C.R. 57, 56 C.C.C. (3d) 181, the Supreme Court of Canada listed the admissibility of evidence as one of the “clearly-established questions of law” (at page 71). [16] Whether section 686(1)(b)(iii) is properly applied by an appellate court is also a question of law. The Supreme Court of Canadadecided this issue in Mahoney v.

R., (SCC), [1982] 1 S.C.R. 834 wherein the Court stated at pages 852-853 that a “Courtof Appeal must give substance to the concept of ‘miscarriage of justice’, and this involves a legal determination, […] [T]he applicationof the proviso must always involve a question of law …”. [17] The alleged errors in the SCAC Judge’s decision respecting the admissibility of Mr. Kelly’s statements and the similar factevidence, as well as the SCAC Judge’s application of section 686(1)(b)(iii) of the Code, all relate to whether important legal standardshave been properly applied to accepted evidence.

The resolution of each of these issues is important to the administration of justice. DID THE SCAC JUDGE ERR IN CONCLUDING THAT THE PCJ ERRONEOUSLY ADMITTED MR. KELLY’S VERBALAND WRITTEN STATEMENTS AT TRIAL? The Law [18] The admissibility of a defendant’s statements made to persons in authority depends on whether the statements were voluntarilymade. If the statements are determined not to have been made voluntarily, they are not admissible (R. v. Oickle, 2000 SCC 38, [2000] 2S.C.R. 3). Voluntariness is a legal standard long known to our law.

It was historically based on the concern that coerced or otherwiseinvoluntary statements are not likely to be reliable (R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 29). Further, it matters notwhether the statements sought to be admitted are inculpatory or exculpatory – the same rule governs (Piché v.

R. (1970), (SCC), [1971] S.C.R. 23, at 36). [19] In Oickle, the Court described voluntariness as the touchstone of the confessions rule, identifying threats or promises, the lack ofan operating mind, and police trickery that unfairly denies an accused’s right to silence as concerns that inform its determination(paragraph 69). At paragraph 70, the Court explained voluntariness by quoting from Wigmore on Evidence (Chadbourne rev. 1970), vol.3,

section 826, at 351, who said that voluntariness is “shorthand for a complex of values”. In Singh, at paragraph 30, the Supreme Courtelaborated on these values, saying that they “include respect for the individual’s freedom of will, the need for law enforcement officersthemselves to obey the law, and the overall fairness of the criminal justice system”. [20] The Oickle Court went on to explain that mere inducements do not automatically render a statement inadmissible.

Rather, thequestion is whether an inducement is strong enough to raise a reasonable doubt about whether the will of the subject has been overborne(paragraph 57). The SCAC Judge’s Decision [21] In this case the SCAC Judge determined that “the trial judge committed an error in admitting [Mr. Kelly’s] oral statements and[his] written statement provided on November 21, 2012” (R. v. Kelly, 2017 NLTD(G) 148, at para. 67). The Judge does not state howthe PCJ erred in admitting Mr. Kelly’s statements.

However, his conclusion directly follows references to cases respecting thevoluntariness of accuseds’ statements, and his comment that: Sergeant Buckle and Staff Sergeant Elliott had many unrecorded or undocumented discussions with Mr. Kelly from October 17, 2012 toDecember 3, 2012 with no specific dates as to the times of these conversations. Therefore, cross-examination would not have served anyuseful purpose. The Judge’s decision therefore suggests that he concluded the Crown had not proved Mr. Kelly’s statements to have been voluntarilymade because not all of the interactions between the police and Mr.

Kelly had been documented or recorded. Analysis [22] On appeal, the Crown asserts that the SCAC Judge erred in overturning the PCJ’s admission of Mr. Kelly’s statements intoevidence. On appeal, Mr. Kelly submits that the Crown failed to show a complete picture of his interactions with the police. [23] At trial, Mr. Kelly’s argument that his written statements were not voluntarily made was based on his contention that StaffSergeant Elliott had ordered him to provide a written statement so that the investigation into A. H.’s complaint could be concluded.

Hisposition was that as a police officer, he had to provide a statement to a “superior” officer when asked to do so. Accordingly, he obligedby providing his written statement of November 21, 2012 and by providing written answers to the follow up questions posed by StaffSergeant Elliott on November 23, 2012. With respect to the admissibility of his verbal statements, first to Sergeant Buckle and then toStaff Sergeant Elliott, Mr. Kelly maintained that he had been required to speak with Sergeant Buckle and Staff Sergeant Elliott respectingA.

H.’s complaint because they were superior officers and legislation and police policy required it. [24] The PCJ heard these arguments and rejected them with reasons (360 Nfld. & P.E.I.R. 91). The PCJ found that Mr. Kelly wasnever ordered to provide a written statement to Staff Sergeant Elliott, and neither was he induced, threatened or tricked into doing so. The PCJ accepted the evidence of Staff Sergeant Elliott as to his interaction with Mr. Kelly over the course of the investigation into A.

H.’s complaint, noting that Staff Sergeant Elliott was visibly surprised at the notion that Mr. Kelly would testify he believed he had beencoerced into providing or ordered to provide the written statement. [25] In his decision, the SCAC Judge reviewed some of the evidence surrounding Mr. Kelly’s oral and written statements to police. He also relied on cases which touched on the voluntariness of statements in cases where evidence respecting the circumstances in whichthese statements were made was argued to be incomplete. [26] It is useful to review the cases on which the SCAC Judge relied. In Sankey v.

R., (SCC), [1927] S.C.R. 436, theaccused was an illiterate Aboriginal man in custody respecting a murder. He had been questioned by several police officers severaltimes, and the Crown sought to have a confession he made during the fourth period of questioning on the day following his arrestadmitted into evidence. Only one police officer testified, and his testimony was with respect to the fourth period of questioning only. According to this 1927 decision, the officer simply provided “meagre details” along with his opinion that the accused had made theimpugned statement voluntarily.

The confession was ruled inadmissible. [27] In R. v. Magnowski, 2011 BCSC 967, the accused was charged with impaired driving. He had given a statement to police that hehad drunk 12 beers before driving. Three police officers were present when the statement was made, but only two testified. A SCACjudge found that the PCJ erred in admitting the statement because the third officer did not testify and the Crown did not explain whythere was no evidence respecting the third officer’s interaction with the accused.

The SCAC judge remarked that while it is notnecessary for the Crown witnesses to recall in precise detail all conversations with an accused, the Court must be in a position todetermine if the tendered statement was voluntary. [28] In R. v. Woodward (1975), (ON CA), 23 C.C.C. (2d) 508 (Ont. C.A.), the accused was charged withtrafficking marijuana. He had been approached by a police officer in a park and asked if he had marijuana. He said nothing, butproceeded to empty his pockets of several bags of marijuana.

Another officer was present for this encounter, but there was no indicationthat there was any conversation between the second officer and the accused. The accused was then driven by the officers to his homeand a field where the officers executed a search warrant. Two officers were present with the accused, and the accused spoke with bothofficers during the search. After the search, the first officer took a statement from the accused. The statement was preceded by the“usual caution.” At the voir dire, only the first officer testified, and the written statement was entered into evidence.

The Court ofAppeal found that the written statement should not have been admitted due to the failure of the second officer to testify. [29] In R. v. Albrecht (1965), (NB CA), 49 C.R. 314, [1966] 1 C.C.C. 281 (N.B.S.C. (A.D.)), the accused wasacquitted at trial of possessing counterfeit money. The accused had been transported and was otherwise under the supervision of severalpolice officers before giving a statement. It appears from the decision that all of the officers gave evidence as to the nature of theirinteractions with the accused.

The majority and the concurring judge agreed that the trial judge had erred in finding the ultimatestatement involuntary and therefore inadmissible saying: There is not the slightest suggestion in the evidence that the second statement was not given freely and voluntarily. When ruling againstits admission, the magistrate merely stated that in view of the circumstances it had not been established beyond a reasonable doubt that itwas given voluntarily. He mentioned no circumstances whatever which caused him to make his finding. [30] R. v.

Plowman (1958), (NL SC), 28 C.R. 394, 123 C.C.C. 76 is a 1958 decision of the Supreme Court ofNewfoundland sitting en banc. The accused was charged with breaking and entering as well as theft, and had provided a writtenstatement to police. At trial, the accused identified his signature, and the statement was entered as evidence. The police officer testifiedthat he “cautioned” the accused, but it appears no further details were provided.

The court found that this was insufficient evidence todetermine whether the statement was voluntary. [31] The factual circumstances in Sankey, Magnowski, Woodward, and Plowman all involved gaps in evidence respecting thecircumstances in which the statements were given which led to respective conclusions that voluntariness had not been proved. Albrechtstands for the proposition that a court must give reasons when ruling against the admissibility of a statement.

None of these cases standsfor the proposition that all interactions with a witness, person of interest, or defendant must be recorded or documented. [32] In this case, there were no gaps in the evidence. Sergeant Buckle, Staff Sergeant Elliott, and Mr. Kelly were examined and cross-examined on the circumstances surrounding Mr. Kelly’s verbal statement to Sergeant Buckle on October 17, 2012 and their subsequentdiscussions in which Sergeant Buckle acted as an advisor to Mr. Kelly. Likewise, the evidence was complete respecting Mr.

Kelly’sverbal statements to Staff Sergeant Elliott including the conversations which were documented and those that were neither documentednor recorded. Moreover, there was no suggestion that anything untoward occurred in an undocumented or unrecorded conversationwhich could have been resolved or assisted by documentation or a record. [33] The SCAC Judge’s decision appears to rule that all of the interactions and statements made by Mr. Kelly throughout theinvestigation of A. H.’s complaint ought to have been recorded.

The PCJ found, and the SCAC Judge did not rule otherwise, that Mr.Kelly was not under investigation or viewed as a suspect by Staff Sergeant Elliott until December 4, 2012. Until then, Mr. Kelly was acolleague working in the same detachment as Staff Sergeant Elliott, and whom Staff Sergeant Elliott, according to the evidence, viewedas a witness but was seeking to exonerate. Importantly, it was Mr. Kelly who initiated the interactions and conversations with StaffSergeant Elliott, expressing his interest in the status of the investigation into A. H.’s complaint.

These circumstances are very differentfrom police interviewing a defendant, suspect or person of interest. Such interviews are generally expected to be documented. In thecircumstances at play between Mr. Kelly and his colleagues prior to December 4, 2012, it is understandable that Sergeant Buckle andStaff Sergeant Elliott would not be recording or documenting every contact or conversation with Mr. Kelly concerning A. H.’scomplaint. [34] This is not to endorse the way the RNC chose to investigate A. H.’s complaint. Given that the calls to A.

H. came fromConstable Kelly’s police-issued phone, it is curious indeed why the investigation was not conducted by an independent agency. Nevertheless, the reality is that when Mr. Kelly made the impugned statements, he was considered a witness and not considered asuspect and Staff Sergeant Elliott.

[35] Mr. Kelly’s argument that his statements were involuntary because he was required to speak with superior officers was rejectedby the PCJ. The SCAC Judge did not rule otherwise. Mr. Kelly was a police officer of some ten years’ experience in giving policecautions and Charter rights to accused persons. Not only did he know and understand that he was at liberty not to speak with the policeabout the investigation of A. H.’s complaint, but he himself initiated most, if not all, of the advisory discussions with Sergeant Buckleand his discussions with Staff Sergeant Elliott. Mr.

Kelly even asked to meet with Staff Sergeant Elliott in an unmarked car to discussthe matter, all with a view to pressing Staff Sergeant Elliott for a quick end to the investigation of A. H.’s complaint. In thesecircumstances, it is not open to Mr. Kelly’s to claim that he was induced or tricked into conversing with Staff Sergeant Elliott or SergeantBuckle or that his will was overborne by either police officer such that his participation in those discussions was coerced. [36] Mr. Kelly also argued at trial that he was ordered to provide a written statement to Staff Sergeant Elliott. Mr.

Kelly and StaffSergeant Elliott met just prior to Mr. Kelly producing his November 21, 2012 written statement. They discussed the fact that the use ofMr. Kelly’s police-issued phone by anyone other than Mr. Kelly was unexplained. At this time Mr. Kelly was viewed as a witness whomay be able to solve the mystery. After all, it was his phone that was used to make the calls to A. H. [37] After his conversation with Staff Sergeant Elliott, Mr. Kelly consulted with legal counsel and thereafter provided his November21, 2012 typed statement, signed by him. The Staff Sergeant had questions, which he discussed with Mr.

Kelly’s legal counsel, and Mr.Kelly subsequently reconferred with his counsel and thereafter produced written answers to Staff Sergeant Elliott’s questions onNovember 23, 2012. [38] Mr. Kelly’s position that Staff Sergeant Elliott had ordered him to provide a statement was rejected by the PCJ. The SCACJudge did not rule otherwise. Neither did the SCAC Judge interfere with the PCJ’s credibility assessments of Staff Sergeant Elliott orMr. Kelly, or the PCJ’s factual findings with respect to the evidence on voluntariness.

In fact, the SCAC Judge’s comments respectinghis application of the curative proviso would tend to confirm the PCJ’s findings. [39] The SCAC Judge also implied that the Crown did not prove that his statements were voluntary because Staff Sergeant Elliott andSergeant Buckle were not asked directly by Crown counsel whether they had threatened Mr.

Kelly or offered him promises orinducements to provide his statements. [40] The determination as to whether a statement is voluntary does not depend on direct denials of threats, promises, and inducementsfrom the persons in authority who received the statements or were otherwise involved when the statements were made. Indeed in thevast majority of cases the answer to such a direct question would be predictably “no”. Voluntariness is determined in consideration of allof the evidence respecting how, why, when, and where a statement in issue was made.

What is required to prove or disprovevoluntariness is evidence that gives a true picture of the circumstances in which the statements were made. There is no rigid formula thatmust be adhered to or determinative question which must be asked. [41] Likewise, there is no rule of law that requires all conversations or interactions with a defendant to be documented or recorded. While such a practice may be preferable, practical circumstances may well dictate otherwise. More important in the context of this case,there is no rule of law that requires documenting or recording all interactions with a person, like Mr.

Kelly, who is viewed as a witness atthe time he or she made the statements, but who later becomes a suspect or defendant. [42] In the result, the SCAC Judge erred in law by misapprehending and misappling the law respecting voluntariness in ruling thatMr. Kelly’s statements were not voluntary merely because some of his interactions with police were not recorded or documented. Whilethis error is sufficient to restore the statements into evidence, a further comment specifically on the SCAC Judge’s exclusion of thestatements in respect of the mischief charge is warranted.

The Actus Reus of the Mischief Charge [43] The foundation for the mischief charge is the information Mr. Kelly provided in his November 2012 statements that he lent hispolice-issued telephone to Mr. X at two different times and at two different locations in Corner Brook on October 17, 2012. The dateand times when Mr. Kelly said he lent his police-issued phone to Mr. X happen to be the same date and times when the phone calls to A.H. were made from his police-issued phone. [44] Upon receipt of Mr. Kelly’s written statements, the police investigated Mr. X, who testified at trial. Mr.

X testified that he hadnot used Mr. Kelly’s police-issued cell phone on October 17, 2012, or any other occasion. Moreover, he provided an alibi for the dateand times of the calls made to A. H. Mr. Kelly’s evidence was to the same effect as what he said in his statements. [45] The PCJ accepted Mr. X’s trial evidence and rejected Mr. Kelly’s evidence, concluding that Mr. Kelly’s implication of Mr. X inthe calls to A. H. was a false and deliberate attempt to divert suspicion from himself and cause Mr. X to become suspected of havingmade the calls to A. H.

The SCAC Judge did not interfere with the PCJ’s credibility assessments or factual findings in this regard. [46] When Mr. Kelly made the November statements in which he implicated Mr. X, he was not being investigated for mischief, norwas he a suspect in the matter of A. H’s complaint. His November statements were essentially witness statements given to Staff SergeantElliott in the hope of bringing an end to the investigation of A. H.’s complaint. When Mr. Kelly provided his written statements therewas no mischief charge. The genesis of the mischief charge was Mr. Kelly’s statements. Mr.

Kelly’s false and deliberate implication ofMr. X as the person who called A. H., made in his written statements to Staff Sergeant Elliott, constituted the actus reus of the mischiefoffence, and led to the charge of mischief being laid against him. [47] The voluntariness rule does not apply to information which constitutes the actus reus of a different, and theretofore non-existent,offence. This would be so even if Mr.

Kelly had been under investigation at the time he gave his statements, or even if his statementswere involuntary for the purposes of prosecution of the offence under investigation when the statements were made. [48] In R. v. Stapleton (1982), (ON CA), 134 D.L.R. (3d) 239, 26 C.R. (3d) 361 (Ont. C.A.), the Ontario Court ofAppeal considered the admissibility of statements made by accused persons which provide foundational information for mischiefcharges. In Stapleton, the accused was charged with mischief for providing written statements in which he alleged an offence which had

not been committed, and which caused the police to embark upon an investigation. At trial, the accused sought a ruling that hisstatements were not voluntary and therefore inadmissible. The trial judge admitted the statements, ruling that the confessions rule didnot apply to his statements because they constituted the gravamen of his offence.

The Ontario Court of Appeal agreed, ruling that theaccused’s statements constituted the actus reus of the offence charged and that the confessions rule does not apply in such situations(paragraphs 6-7). [49] The same reasoning was applied by the Supreme Court of Newfoundland and Labrador in R. v. Goulding (1997), (NL SC), 157 Nfld. & P.E.I.R. 16. In Goulding, the accused was charged with arson and mischief. He gave a statement whichprovided false information as to the source of the fire in an arson investigation.

The statement was ruled inadmissible respecting thecharge of arson but admissible respecting the information which constituted the actus reus of the mischief charge (paragraphs 22-24). Inother words, the Crown was only permitted to use the information in the accused’s statement for the purposes of the mischief charge, andnot the arson charge. [50] I agree with the reasoning in Stapleton and Goulding. The confessions rule does not apply to a statement or information in astatement that constitutes the actus reus of a mischief charge.

Were it otherwise, accused persons could make false allegations againstinnocent persons without fear of reprisal. [51] In the result, the information given by Mr. Kelly in his November 21 and 23, 2012 written statements, insofar as it grounds themischief charge, would be admissible evidence against Mr. Kelly regardless of the voluntariness rule. The SCAC Judge could haveupheld the mischief conviction on this basis. However, he did not articulate why he upheld this conviction in relying on section 686(1)(b)(iii) to do so. [52] In

summary, the SCAC Judge erred in law in ruling that the PCJ erroneously admitted Mr. Kelly’s statements into evidence. Hemisapprehended the law respecting voluntariness and applied incorrect law to the facts of the case by ruling that Mr. Kelly’s statementswere not voluntary because some of the interaction between him and the police had not been recorded. He also erred in law by failing tofind that the voluntariness rule did not apply to Mr. Kelly’s statements insofar as they provided the foundation for the mischief charge. Breach of

Section 7 of the Charter [53] At the voluntariness voir dire, Mr. Kelly also argued that the written statements were obtained in violation of his right to silenceas protected by

section 7 of the Charter. Mr. Kelly argued that because he had a duty as a police officer to provide a statement to asuperior officer, the statement constituted compelled speech, and admitting the evidence would result in a violation of his right to silence. [54] The PCJ rejected this argument, and found that the statement was given by exercise of Mr. Kelly’s free will, and not as a result ofa statutory duty. [55] While the PJC’s finding on

section 7 was appealed to the SCAC, the SCAC Judge did not address it in light of his ruling onvoluntariness. Given that the SCAC Judge’s ruling has been reversed, fairness to Mr. Kelly requires that this Court consider the PCJ’sconclusion that Mr. Kelly’s right to silence was not violated. [56] Under the Royal Newfoundland Constabulary Act, 1992, S.N.L. 1992, c.

R-17, an officer is prohibited from “disobey[ing] lawfulorders or fail[ing] to carry out orders of his or her superior officers,” while the Royal Newfoundland Constabulary Regulations, C.N.L.R.802/96 similarly prohibit “disobey[ing] the lawful command of any other police officer who is superior in rank or is in a supervisorycapacity over the police officer.” [57] The issue before the PCJ was whether Mr. Kelly’s statements were provided as a function of this statutory obligation to followlawful orders of his superior officers. Mr.

Kelly’s November 21, 2012 written statement opened with the following: This report is being made at the request of Staff Sergeant Roy Elliott and is made without prejudice. I object to and claim privilege fromthe use of all, any part, or parts, of this statement in any proceedings whether criminal or civil and including disciplinary proceedings, orin any investigations or inquiry. [58] The November 23, 2012 letter, sent by Mr. Kelly’s legal counsel, similarly stated that it was without prejudice, and was “not tobe used against him.” These unilateral statements do not determine the legal issues raised by Mr.

Kelly’s

section 7 argument. As theAlberta Court of Appeal stated at paragraph 25 of Bellatrix Exploration Ltd. v. Penn West Petroleum Ltd., 2013 ABCA 10 “acommunication that is not in substance privileged does not become so just because one party places “without prejudice” on it.” [59] In R. v. White, (SCC), [1999] 2 S.C.R. 417, 174 D.L.R. (4th) 111, the Supreme Court of Canada ruled that, insome circumstances, admitting into evidence statements made by an accused under statutory compulsion could result in a violation of theright to silence protected by

section 7. The White Court referenced the four relevant contextual factors for determining whether theprinciple against self-incrimination is violated which had been set out by the Supreme Court of Canada in R. v.

Fitzpatrick, (SCC), [1995] 4 S.C.R. 154, 129 D.L.R. (4th) 129: (1) the lack of real coercion by the state in obtaining the statements; (2) the lack of an adversarial relationship between the accused and the state at the time the statements were obtained; (3) the absence of an increased risk of unreliable confessions as a result of the statutory compulsion; and (4) the absence of an increased risk of abuses of power by the state as a result of the statutory compulsion. [60] The White Court also stated that an accused’s honest and reasonably held belief that he or she was required by law to provide thestatement is a separate factor for consideration, saying that if "a declarant gives [a statement] freely, without believing or beinginfluenced by the fact that he or she is required by law to do so, then it cannot be said that the statute is the cause of the declarant's

statements. The declarant would then be speaking to police on the basis of motivating factors other than [the statute]." [61] In his analysis, the PCJ made the factual finding that “Mr. Kelly freely spoke to Sergeant Buckle and Staff Sergeant Elliott. Mr.Kelly did not speak to either of them because he felt compelled to do so.” While the PCJ’s factual findings are not unassailable, they areentitled to significant deference. The finding that Mr.

Kelly not only chose to speak to but initiated the conversations with SergeantBuckle and Staff Sergeant Elliott and chose to provide the November written statements to Sergeant Elliott is entirely consistent with thePCJ’s finding that the statements were made voluntarily. This finding of voluntariness is confirmed in the above reasons. [62] For the statement of an accused to be admissible, the Crown is required to prove that the statement was voluntary beyond areasonable doubt. To exclude the statement on the basis of the right to silence under

section 7 of the Charter, the accused must show thatit infringed the right on the balance of probabilities. As noted by the Supreme Court of Canada in Singh, this results in “considerableoverlap” between the confessions rule and the

section 7 right to silence. While a finding that a statement to the police was voluntary doesnot absolutely preclude a finding of a violation of the

section 7 right to silence, there is no basis to find such a violation in the presentcase. [63] Accordingly, I would affirm the PCJ’s finding that the admission of the statements does not infringe Mr. Kelly’s right to silenceunder

section 7 of the Charter. DID THE SCAC JUDGE ERR IN CONCLUDING THAT THE PCJ ERRONEOUSLY ADMITTED THE SIMILAR FACTEVIDENCE? [64] The similar fact evidence tendered by the Crown at trial was evidence from two women – Y and Z – who had received obscenephone calls on different dates between May and October 2012 from a male caller calling from Mr. Kelly’s police-issued phone.

TheCrown argued at trial that the probative value of this similar fact evidence outweighed its prejudicial effect because “it would defycommon sense to conclude” that their evidence was not so strikingly similar to the evidence respecting the calls made to A. H. that thecalls had to have been made by the same person. The PCJ admitted the evidence at trial (360 Nfld & P.E.I.R. 145). On appeal to theSCAC, Mr. Kelly argued that its admission was improper.

The SCAC Judge’s Decision [65] The SCAC ruled that the PCJ had erred in admitting the similar fact evidence because he considered the link between Mr.Kelly’s police-issued phone and the calls made to Y and Z in the first step of his admissibility analysis. The SCAC Judge said thiswould tend to confirm Mr. Kelly’s involvement which was an improper consideration at that stage. He reasoned that the PCJ ought tohave assessed the similarities and dissimilarities between the evidence respecting the calls to A. H. and the proffered similar factevidence before focusing on identifying Mr.

Kelly as the caller (paragraphs 20-27 of the SCAC Judge’s decision). The Law [66] Evidence of similar facts committed by an accused or alleged to have been committed by an accused is presumptivelyinadmissible (R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55). This presumption can be overcome if the Crown shows that,overall, the probative value of the proffered similar fact evidence outweighs its prejudicial effect (Handy at paragraph 55 and R. v.

Jesse,2012 SCC 21, [2012] 1 S.C.R. 716, at para. 48). [67] When the identities of the defendant and the perpetrator of the acts alleged to be similar to the charges before the court are inissue, the similar fact evidence is generally proffered on the basis that such similarity could only be exhibited by the same person. [68] The Supreme Court of Canada considered how determining admissibility of similar fact evidence when identity is an issueshould be approached in R. v. Arp, (SCC), [1998] 3 S.C.R. 339, 166 D.L.R. (4th) 296.

The Court stated that in suchsituations a trial judge must first consider whether the alleged similar acts disclose sufficient similarity to the acts alleged to establish theobjective improbability of coincidence. The Court explained that the manner in which the acts were committed and not the evidence asto the accused’s involvement in each act should be considered at this stage.

The Court also stated that there may well be exceptions tothis approach, but as a general rule, if there is such a degree of similarity between the acts that it is likely that they were committed bythe same person then the similar fact evidence will ordinarily have sufficient probative value to outweigh its prejudicial effect. [69] As a second step, the Court endorsed the principle set out in R. v.

Sweitzer, (SCC), [1982] 1 S.C.R. 949, 137D.L.R. (3d) 202 that a link between the allegedly similar facts and the accused is a precondition to admissibility, as otherwise the similarfacts would have no relevance (page 954). [70] The use of similar fact evidence to support proof of identity was again considered in R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R.228.

In Perrier, the Supreme Court of Canada described the test for admissibility when identity is in issue as having two steps, sayingthe first step is to compare the similarity of the acts themselves, and if a high degree of similarity is found, the second step is to considerwhether the defendant is linked to the similar acts (paragraphs 20-23). Analysis [71] In this case, the SCAC Judge faulted the PCJ for linking Mr. Kelly’s police-issued phone to the calls received by Y and Z, sayingthat the linking went to identity and “tended to confirm Mr.

Kelly’s involvement and not the manner in which the similar acts werecarried out”. With respect, I cannot agree with this characterization of both the evidence and the SCAC Judge’s analysis of the issue. [72] The fact that the calls received by Y and Z were from the same phone as the calls to A. H. goes directly to the manner in whichthe similar acts were committed. It is how the calls were made to Y and Z. On its own, it provides striking similarity to the evidencerespecting the manner in which the calls were made to A. H. It is akin to a hallmark.

In addition to this striking similarity, there wereother similarities – the calls were obscene in nature, the callers were male, and the calls were all made within a period of a few monthsduring 2012, as the PCJ found.

[73] Identifying a high degree of similarity in the manner in which the similar acts were committed is the first part of the inquiry. However, such similarity does not prove that Mr. Kelly was the caller. [74] Determining whether there is a link between Mr. Kelly and the similar fact evidence is the second stage of the inquiry. The factthat the calls to Y and Z came from Mr. Kelly’s police-issued phone provides the link to Mr. Kelly. Such a link is required foradmissibility, as stated in Arp and Sweitzer and described in Jesse at paragraphs 15 and 18. The fact that the calls to A. H. and Y and Zcame from Mr.

Kelly’s police-issued phone establishes a high degree of similarity to the evidence respecting the calls to A. H., as well asa link to Mr. Kelly. Just because similarity is established by the involvement of Mr. Kelly’s police-issued phone in the calls to A. H., Yand Z does not mean that linkage cannot be established by the same evidence. [75] The SCAC Judge was also concerned that the words spoken in the obscene calls were not strikingly similar to each other. Obscene phone calls can involve as many obscene words and expressions as there are people.

The fact that they are obscene, as opposedto a wrong number or a prank call, establishes some degree of similarity. While it may be that the same or similar words or expressionsin obscene calls can establish a striking degree of similarity, the fact that the same words and expressions were not used in the obscenephone calls does not disprove similarity.

To require that the same words or expressions be used to establish the degree of similarityrequired for admissibility would be an unrealistic and virtually insurmountable burden for the Crown to meet. [76] In this case the caller’s words and expressions primarily referenced oral sex. The fact that the calls were obscene in nature andgenerally referenced oral sex may or may not have been sufficient to establish the required similarity in this case.

However, the obscenenature of the calls, in combination with the fact that the calls were made by a male caller from the same police-issued phone more thanestablishes the high degree of similarity required for meeting the first step in the analysis. [77] In Mr. Kelly’s statements and testimony, he did not dispute that his police-issued phone was used to call A. H. However, hedisputed that he was the caller. His evidence was that Mr. X had borrowed his police-issued phone momentarily at two different timeson the same date as the calls were made to A. H., and that therefore Mr. X must have been the caller.

While Mr. Kelly had anexplanation for how the calls to A. H. had been made from his police-issued phone, he offered no explanation for how the calls to Y andZ had come from the same phone. Because there was no evidence of anyone other than Mr. Kelly who could have called Y and Z fromMr. Kelly’s police-issued phone, the similar fact evidence supported the Crown’s theory that Mr. Kelly had made the calls to A. H. [78] The PCJ listed the factors which led him to admit the similar fact evidence.

While he did not describe the test as set out inPerrier, his reasoning and analysis, including his linking of the calls to Mr. Kelly because they came from Mr. Kelly’s police-issuedphone, are in accordance with the analytical framework set out in the cases and well supported by the evidence. I add only that the“stages” test set out in Arp and Perrier is meant to provide a useful approach to ensuring that “a high degree of similarity” and “linkageto the accused” exist before proffered similar fact evidence is admitted when identity is in issue. The test is not meant to be applied as arigid chronological formula.

Rather, the lines can sometimes be blurred, and the same evidence can support each stage of the analysis. [79] In

summary, the SCAC Judge erred in law in ruling that the PCJ had erroneously admitted the similar fact evidence. Hemisapprehended the law respecting similar fact evidence and applied incorrect law to the PCJ’s decision to admit the similar factevidence. THE SENTENCE APPEAL [80] Mr. Kelly argues that the SCAC Judge erred in upholding Mr. Kelly’s ten-month jail sentence by overemphasizing thesentencing objectives of denunciation and deterrence. While Mr.

Kelly agrees that police officers who commit criminal offences are tobe held to a higher standard than ordinary people because of the public trust placed in them, he argues that he did not abuse his positionas a police officer in committing the within offences. [81] At sentencing in the trial court, the PCJ described Mr. Kelly’s conduct as “two serious offences involving a massive breach ofpublic trust”. With regard to the indecent phone call, he noted that Mr. Kelly was on duty and using his police-issued phone when hecalled A. H., and that he made reference to the fact that he knew that A.

H. was alone and what she was wearing. In regard to themischief offence, the PCJ stated “to purposely blame an innocent person for a crime you committed is as egregious

an act as a policeofficer can commit. This offence requires concentration on denunciation and general deterrence”. [82] The SCAC Judge described the PCJ’s assessment of Mr. Kelly’s conduct as “planned and deliberate”, “a massive breach of thepublic trust placed in him as a police officer” and “so egregious that a conditional sentence would not achieve the denunciatory effectrequired”. In dismissing Mr.

Kelly’s sentence appeal, the SCAC Judge stated that the PCJ had “reviewed the appropriate principlesrelating to the offences committed and the relevant circumstances including the consideration that the offender was a police officer”. [83] It is well established in sentencing case law that law enforcement officers who break the law breach the public trust placed inthem, especially when the offence committed is related to the officer’s duties. Such breaches are regarded as serious, and call foremphasis on denunciation and deterrence in sentencing. See R. v.

Webster, 2014 NLTD(G) 135, 357 Nfld. & P.E.I.R. 321; R. v. LeBlanc,2003 NBCA 75, 264 N.B.R. (2d) 341; R. v. Cusack (1978), (NS CA), 26 N.S.R. (2d) 379, 41 C.C.C. (2d) 289(N.S.C.A.); and R. v. Greenhalgh, 2012 BCCA 236. [84] In R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, Lamer C.J.C. explained the sentencing objective ofdenunciation (section 718(

a) of the Code) at paragraph 81: … The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender'sconduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct shouldbe punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord JusticeLawton stated in R. v. Sargeant (1974), 60 Cr. App.

R. 74, at p. 77: "society, through the courts, must show its abhorrence of particulartypes of crime, and the only way in which the courts can show this is by the sentences they pass". The relevance of both retribution anddenunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penaltiesdesigned to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence.

Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code . [ 85 ] The former Chief Justice reiterated his above comments in R. v.

Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61 , a case dealing with the appropriateness of a conditional sentence for an offender convicted of dangerous driving causing death while under the influence of alcohol. In Proulx , an appellate court had substituted a conditional sentence for the sentencing judge’s 18-month jail sentence, saying the sentencing judge had placed too much weight on denunciation. The Supreme Court restored the sentencing judge’s jail sentence.

At several points in Proulx , Chief Justice Lamer stated that a conditional sentence is a more lenient sentence than a jail term of equivalent duration (see paragraphs 40-44, 54, and 102). [ 86 ] Deterrence is almost always an important sentencing consideration. In this case the message must be sent that people who breach the public trust in their implication of others in order to divert suspicion from themselves will be dealt with harshly. [ 87 ] Mr. Kelly’s sentencing argument concerns two offences: making an obscene phone call and mischief.

While a conditional sentence for making an obscene phone call could, on its own and depending on the facts and circumstances, be appropriate, the facts and circumstances of Mr. Kelly’s obscene phone call offence, set out in paragraph 80 above, demonstrate shameful on-duty conduct warranting a period of incarceration. [ 88 ] The facts and circumstances of Mr. Kelly’s conviction for mischief demonstrate more shameful conduct. Mr. Kelly diverted suspicion from himself by causing Mr. X to be suspected of committing an offence that Mr. X did not commit. Mr. Kelly caused Mr. X to become a suspect when Mr.

X had nothing whatsoever to do with the matter and was completely innocent. [ 89 ] Mr. X was not just any person who Mr. Kelly could have said borrowed his police-issued phone at the times the calls were made to A. H. Rather, Mr. X was someone Mr. Kelly said he was cultivating as an informant in relation to his police work, meaning that Mr. Kelly used knowledge and opportunity gained through his police work to further his objective of diverting suspicion from himself. His choice of Mr. X, who was someone with apparent criminal connections and therefore vulnerable to suspicion, was because Mr.

X could be unlikely to be believed either by the police or the court. [ 90 ] Both Mr. X and A. H. have been hurt by Mr. Kelly’s conduct and both say they have lost trust in the police. Moreover, Mr. Kelly’s exposure of Mr. X as a potential informant was hurtful and endangering to him. [ 91 ] Accordingly, Mr. Kelly’s conduct, by any measure, did involve abuse of his position as a police officer and breach of the public trust placed in him. The actions underlying his mischief conviction are reprehensible in and of themselves as well as antithetical to his duties and responsibilities to society as a police officer.

As such, his actions “encroach on our society’s basic code of values” making denunciation and deterrence the foremost sentencing objectives in this case ( M. (C.A.) ). [ 92 ] Like the PCJ and the SCAC Judge, I am of the view that the circumstances of Mr. Kelly’s offences are egregious, and that a conditional sentence would not serve the sentencing objectives of denunciation and deterrence. Nor would it promote Mr. Kelly taking responsibility for his actions and acknowledging the harm done to A. H., Mr. X, and the community. In short, the service of Mr.

Kelly’s 10-month sentence in jail is more proportionate to the gravity of his offences than a conditional sentence would be. [ 93 ] In my view, the SCAC Judge did not err in upholding the PCJ’s ten-month incarcerating sentence. Accordingly, I would not allow Mr. Kelly’s sentencing appeal. DISPOSITION [ 94 ] In the result, on my analaysis the SCAC Judge erred in law in his appreciation and application of the law respecting the admissibility of Mr. Kelly’s statements and in his appreciation and application of the law of similar fact evidence to the decisions of the PCJ.

Accordingly, I would allow the Crown’s cross-appeal on both issues and restore the admission into evidence of Mr. Kelly’s verbal and written statements and the similar fact evidence of Y and Z. I would also uphold the SCAC Judge’s 10-month jail sentence for Mr. Kelly. [ 95 ] This disposition means that the basis for the PCJ’s decision to convict Mr. Kelly on both charges is restored. It also means that the SCAC Judge’s ultimate conclusion to uphold Mr. Kelly’s convictions and sentence is undisturbed. In these circumstances, it is not necessary to consider Mr.

Kelly’s argument concerning application of the curative proviso. [ 96 ] In the result, I would allow the cross-appeal and dismiss the appeal, and uphold the SCAC Judge’s decision upholding Mr. Kelly’s convictions for making an obscene phone call to A. H. and mischief, and his 10-month jail sentence. Leave to appeal granted, appeal dismissed, cross-appeal allowed.