R v Lachance, 2023 SKCA 48

Court of Appeal for Saskatchewan Docket: CACR3495 Citation: R v Lachance , 2023 SKCA 48 Date: 2023-04-25 Between: His Majesty the King Appellant And Jacky Regan Lachance Respondent Before: Caldwell, Leurer and Barrington-Foote JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Leurer On appeal from: Provincial Court (Sask), Saskatoon Appeal heard: June 7, 2022 Counsel: W. Dean Sinclair, K.C. for the Appellant Thomas Hynes and Aleida Oberholzer for the Respondent Barrington-Foote J.A. I.

INTRODUCTION [ 1 ] Shortly after midnight on August 8, 2020, Saskatoon police officers Jason Willard and Cody Bishop attended at Jacky Lachance’s sister’s house. They did so in response to a report by Danelle Strongarm that there had been a break and enter at the house by Mr. Lachance and a female who was later identified as Shanelle Littlewolfe, and that she had been assaulted. When the police knocked on the locked front door, no one answered, and Cst. Willard went to the back of the house.

Hearing rustling, he peered through a grove of trees and saw a person ten feet away on the back deck of the house pointing a gun at him. [ 2 ] Constable Willard ran from the yard and he and Cst. Bishop retreated to their vehicle and called for backup. They and the many other officers who responded watched both entrances to the house until Mr. Lachance and Ms. Littlewolfe exited through the front door about an hour later. Mr. Lachance was immediately arrested. When they searched the house, the police found a disassembled .22 calibre rifle. [ 3 ] Mr.

Lachance was charged with eight assault and firearms offences, including an assault on Ms. Strongarm. Ms. Strongarm went to the court house on the original trial date but left before she was to testify. There was evidence that Mr. Lachance had posted a Facebook message the night he was arrested, calling Ms. Strongarm a rat and encouraging his gang associates to “hit her up”. The trial was adjourned to enable the Crown to secure her attendance when the trial was reconvened, but it was unsuccessful in doing so.

In the result, the Crown applied to introduce her videorecorded statement to the police pursuant to the principled exception to the hearsay rule. Following a voir dire , the trial judge dismissed the application [ voir dire decision]. [ 4 ] Mr. Lachance testified in his own defence, denying that he had committed any of the offences with which he was charged. On October 28, 2021, the trial judge acquitted him on all counts [acquittal decision]. [ 5 ] The Crown has appealed all of Mr. Lachance’s acquittals.

It contends that the trial judge committed several errors of law in assessing the evidence and in finding that the Crown had not established necessity on the hearsay voir dire . I have concluded that there were no such errors of law, and that the appeal must accordingly be dismissed in its entirety. My reasons follow. II. BACKGROUND A. Evidence of the possession and pointing of a firearm [ 6 ] The only direct evidence that Mr. Lachance was the person on the deck with a firearm was that of Cst. Willard. When Cst. Willard was confronted by that person he was standing a mere ten feet away.

He testified that he immediately “kind of fell backwards into a tree” and that he “could hear the racking of a shotgun and that the man said, “Get the fuck out of here”. He said that his view was unobstructed and that, despite the time of day, the lighting was “decent enough”. [ 7 ] It was Cst. Willard’s evidence that he had served as a police officer for 12 years, had dealt often with firearms, had trained with shotguns and was familiar with the sound of a shotgun being racked. He stated that he had clearly observed the firearm and that it appeared to him to be a shotgun.

He affirmed during his cross-examination that the firearm was a shotgun. Constable Willard – who had never seen Mr. Lachance before or since the incident – also identified him in court as the man holding the gun on the deck. He was unable to say what the man was wearing. [ 8 ] Constable Bishop, who had observed shortly after the officers arrived at the scene that the back door onto the deck was “wide open”, was at the side of the house when this confrontation occurred. He was accordingly unable to observe the deck. However, he was

very close and testified that he too heard a male voice say, “Get the fuck out of here” and a sound of metal-on-metal that he recognized as the racking of a gun. He said it sounded like “a shotgun racking or a handgun racking … or the bolt of an action inside a gun”. [ 9 ] Constable Willard was understandably terrified. It was his evidence that he thought he was going to lose his life and that he was “under a lot of panic”. He unsuccessfully attempted to unholster his firearm and immediately ran. He radioed that he “just had a shotgun pointed at me” and both he and Cst. Bishop retreated to their patrol car.

Constable Willard testified that the car was parked approximately half a block away while Cst. Bishop said it was parked directly in front of the house. The officers decided that Cst. Willard would watch the front of the house and that Cst. Bishop would watch the back to make sure no one left. There was accordingly a brief period when there were no police officers observing the back of the house. [ 10 ] After the backup units arrived at the scene, other police officers surrounded the house. Unsuccessful attempts were repeatedly made to contact the occupants of the house. When Mr.

Lachance and his companion finally emerged, they both appeared to be intoxicated and were agitated and uncooperative. Mr. Lachance was arrested. When the house was searched a few hours later, the police found the cut-off end of a .22 calibre rifle barrel in the kitchen, a bolt from a .22 calibre rifle in a bedroom, and a receiver from a .22 calibre rifle in a closet outside another bedroom. There was no shotgun in the house. [ 11 ] At trial, the Crown produced a photograph of Mr. Lachance and Ms. Strongarm that Mr. Lachance confirmed had been taken on August 6, 2020, at his sister’s house.

He agreed that he was holding a firearm in the photograph but denied that he had possession of that firearm at any time on August 7 or 8. He initially said he did not know who owned it but then testified that it belonged to his then 14- year-old brother. He acknowledged that he was on conditions not to have any firearm in his possession but thought that no one would find out. [ 12 ] Mr. Lachance was asked by both his counsel and the Crown whether the firearm in the photograph was the same as the firearm found in the house by the police. It was his evidence that he could not be sure.

He stated that it “looks pretty similar, so it really looks like it’s the same one”, but then said “that photo was taken two days prior to me getting picked up. So…”. The Crown did not enter the photograph in evidence. B. Evidence of the Strongarm assault: the video statement and voir dire [ 13 ] The 11-minute statement that would become the subject of the video voir dire was given by Ms. Strongarm at the request of the police the night of August 8, 2020. She was subpoenaed and attended at the court house on the morning of the trial, but never took the stand.

When court reconvened that afternoon, Crown counsel advised that she wished to introduce the video as proof of the truth of its contents. She reported that she had spoken to Ms. Strongarm during the lunch break, that Ms. Strongarm was hyperventilating and in tears, and that when Crown counsel asked that she come into the courtroom to see the setup, Ms. Strongarm ran from the court house. Crown counsel stated that Ms.

Strongarm told her that she was fearful for her life and “[did] not want to testify against the accused in this case and she does not want to put her life at risk”. [ 14 ] Crown counsel submitted to the trial judge that this established necessity for the purpose of admitting Ms. Strongarm’s out-of- court statement. She proposed to recall Cst. Smith, who had taken the statement, to give evidence bearing on its reliability.

She confirmed that she wished to enter into a voir dire for that purpose, and when asked if she intended to call evidence on the issue of necessity, she answered, “No, simply what I have submitted to the Court”. The following exchange then occurred between the trial judge and Crown counsel, Ms. Le: THE COURT: That’s -- that’s not evidence. You’re going to have to -- you’re going to have to call some evidence on that. Are you going to take ten minutes and consider your position on what evidence you can call with respect to that? MS. LE: I think -- yes, Your Honour. I would like that.

But one of my submissions would be you do have some evidence before you already in relation to her fear. The text messages that she has received indicates that there was possible retaliations from gang members -- THE COURT: I agree that I have some evidence with respect to that issue of it. But I don’t -- the question is on necessity is whether or not it is necessary and whether the witness can testify. Now, as I said, there’s going to need to be evidence on that, not just submissions from counsel. MS. LE: All right. Thank you, Your Honour. [ 15 ] The trial judge then asked defence counsel for her comments.

Defence counsel advised that she was “opposed, obviously, to this application” but had “no comment at this time”. She clarified that she did not oppose the voir dire but was opposed to the Crown recalling the police officer who had taken the statement to the stand “and to the end result”. [ 16 ] Following a brief adjournment, the Court entered the voir dire . Crown counsel tendered the subpoena and affidavit of service, which were entered as exhibits. However, the trial judge refused to admit unsworn notes of a conversation between Ms.

Strongarm and a commissioner who had been attempting to serve the subpoena. [ 17 ] Crown counsel then led evidence from Cst. Smith, who had taken the video statement. He confirmed that Ms. Strongarm’s eye was beginning to swell shut at the time. He stated that she was upset and emotional but that they were able to speak to her “quite easily” and did not pressure her or offer any inducement for giving a statement. The video was played and entered as an exhibit on the voir dire . [ 18 ] At that stage, the Crown requested an adjournment to obtain further evidence for the voir dire .

Defence counsel objected, noting the passage of time. The trial judge asked Crown counsel to confirm that Ms. Strongarm had attended in the morning but was too

afraid to testify and did not come back. Based on that information, the trial judge commented that the Crown could not have anticipatedthat Ms. Strongarm would not return in the afternoon, and that he would accordingly grant an adjournment. [19] The voir dire was reconvened on September 28, 2021. Crown counsel advised that she had only one additional piece ofevidence, that being an affidavit sworn by Cst. Smith, who had again spoken to Ms. Strongarm. Defence counsel objected, explaining thatshe had understood Cst. Smith would be called to testify when the affidavit was tendered.

The trial judge advised Crown counsel that vivavoce evidence was required, as a voir dire is a trial, and that “the Crown would need an admission for [the affidavit] to be admissible”.Crown counsel responded by stating that her only additional submission was that a further unsuccessful attempt had been made to get Ms.Strongarm to attend court.

The trial judge replied as follows: THE COURT:Well again, I think as we discussed last date, in order to getevidence in, it has to be -- well, in order -- in order for there to beevidence, we have to have viva voce evidence and submissions bycounsel are not evidence from which I can draw any conclusionfrom. So -- so we’re at the -- the stage we were at last date in that -- [20] In response, Crown counsel cited R v F. (W.J.), (SCC), [1999] 3 SCR 569 [F. (W.J.)], for the proposition thatthere is no absolute rule that evidence must be called on the issue of necessity.

The trial judge noted that in F. (W.J.), the witness hadstopped testifying, which would demonstrate necessity, while in this case, the evidence was as follows: In this particular case, what evidence I have is the video in which the young woman appears to be very afraid. She is speaking, crying atsome point, she thinks, throughout most of it. That was on the date in question. And then the other evidence would be the evidence of the Facebook which has been admitted as evidence before the Court of JackyLachance’s Facebook page where he says (as read) Danelle is a fucking rat. I got picked up because of that cunt.

Word all my Posse brothers and sisters. Hit her up. Word. Orders. [21] Crown counsel pointed out that the other evidence of necessity was the service of the subpoena on July 28, 2021. When askedby the trial judge if she sought an adjournment to call Cst. Smith, Crown counsel declined and indicated she was prepared to makesubmissions relating to the admissibility of the video. Defence counsel initially took the position that she would agree to the admission ofCst. Smith’s affidavit only if he was available to be cross-examined.

However, following a brief adjournment for an unsuccessful attemptby the Crown to locate Cst. Smith, defence counsel agreed that the affidavit could be admitted. [22] In her voir dire submissions, Crown counsel referred to F. (W.J.) and to R v S.A.B., 2018 SKQB 204 [S.A.B.], as authority forthe proposition that a court can rely on submissions of counsel to prove that reasonable efforts have been made to get evidence that wouldotherwise be unavailable. She noted that the Smith affidavit demonstrated that the police had again sought out Ms.

Strongarm after thefirst trial date and that she had continued to maintain that she did not wish to come to court, as she had “some traumatic experiences fromhaving to testify”. Crown counsel also stated that the officer described her as “quite emotional when speaking about the incident withhim” and pointed to the Facebook messages as evidence that she had been threatened. [23] Defence counsel submitted that the crux of the issue was necessity. She noted that Ms. Strongarm had been compelled to testifyon the first trial date and had appeared voluntarily before leaving and failing to return.

She argued that while Ms. Strongarm had beencontacted by a police officer on September 15, “no…[r]easonable efforts were made at that time to compel her to come and testify”. In herview, Ms. Strongarm should have been required to attend to give evidence as to her state and why she could not testify from “a soft room,etc.” She noted the lack of medical evidence with respect to Ms. Strongarm, and that she had said that she had not been threatened byMr. Lachance. It was her position that reasonable efforts had not been made to get direct evidence from this witness, including by offeringtestimonial aids.

She emphasized the following statement in the per curiam decision in R v Vickers, 2020 ONCA 275: The necessity requirement cannot be met simply because C.B. would not answer questions at the preliminary inquiry. He was notsubpoenaed for trial. A reluctance to testify does not amount to necessity. [24] The trial judge delivered the voir dire decision on September 28, 2021. He dealt first with whether he could take account ofstatements made by Crown counsel in relation to the actions of Ms. Strongarm when she was called to testify.

He reviewed F. (W.J.) atsome length, noting that there, the court had evidence, as the child witness had simply stopped testifying while she was on the stand andhad then refused to answer questions. He summarized his understanding of the law as to the nature of the evidence that is required, asfollows: The decisions of the Court are decisions that are to be founded on evidence and I find that submissions of counsel are not evidence. Weoftentimes made decisions on submissions from counsel and then such as in relation to judicial interim release.

And that is a process that has been established over the years on the basis that statements made by the Crown Counsel are statements withthat -- of evidence that they expect to be able to present, and that those are -- it is admitted by defence counsel without saying so that theyare not -- that they are agreed that the Crown has evidence that has -- has in their possession that evidence that they could -- they anticipatehaving that evidence at the trial. However, there are cases and have been -- number of them where defence says, I do not accept the submissions of counsel and evidence isthus called.

And the reason for that is because evidence has to be -- decisions must be made on evidence or at least submissions that areadmitted. In this case I do not have that.

So I find that I disagree with the statement that the Court has a discretion to find that it is necessary for -- necessary for hearsay statement to be admitted even without evidence having been specifically adduced on the voir dire. The -- that only applies to -- only applies in the cases -- case where there is evidence before the court and not in times in the courtroom and the incident happens that shows that the evidence is not available.

So I can only rely on the evidence before the Court and not submissions of fact from counsel. [ 25 ] Having established this foundation, the trial judge reviewed the evidence of necessity. He noted that Ms. Strongarm did not testify on the first court date but was not subpoenaed to testify when the trial reconvened on September 28. He pointed to Mr. Lachance’s August 8, 2020, Facebook message, which referred to her as a rat and directed that his posse should “hit her up”. He observed that she appeared to be very fearful on the video, but that, notwithstanding her fear, she gave a detailed statement.

As to the interaction with Cst. Smith on September 15, 2021, he said this: She was spoken to by Constable Smith, the officer who took her original statement, on September the 15 th where she -- where according to his affidavit which has been admitted in evidence -- she stated that he had -- that she had not been threatened by anyone but that she was fearful of being in court and experiences anxiety, panic attacks, and PTSD as a result of being in court. Constable Smith indicated further in his affidavit that he thought she was generally afraid while speaking to him.

She expressed that she did not want to testify by CCTV either as she did not want to give anyone a reason to contact her; presumably referring to the fact that testifying would give others a reason to contact her. [ 26 ] The trial judge asserted, citing R v Bradshaw , 2017 SCC 35 , [2017] 1 SCR 865, that to admit the evidence of the witness without the benefit of cross-examination is an exception to the well-established rule and requires unusual circumstances.

He noted the following cautionary statement by the Court in F. (W.J.) : [44] …if one finds necessity too readily one risks depriving the defence of cross-examination when, with more diligence, it would have been available. A witness cannot be excused from testifying because the witness is not in the mood or is generally fearful of the process… [ 27 ] The trial judge allowed that he did not suggest that Ms. Strongarm was “not in the mood” but that she had indicated that she was fearful of the process.

He emphasized that in F. (W.J.) , the Court had observed that excusing a witness because they were generally fearful “might create an incentive for witnesses, who would rather not endure the rigors of cross-examination, to ‘clam up’” and that “[t]he simple answer to this concern is that fear or disinclination, without more, do not constitute necessity. In each case the judge must determine whether, on the facts and circumstances of the case, necessity has been established” (at para 44).

He then summarized his conclusions on the issue of necessity: I find that the witness did express fear of testifying and did not testify in the prior date for the trial. However no further efforts appear to have been made to have her attend to court today to give her evidence with the benefit of aids allowed by the Criminal Code , i.e. screens, CCTV, a support person or support animal. There was a – the officer contacted him [ sic ] and received information from her, however he did not subpoena her or have her attend to court. No indication that any support was – was offered to her other than CCTV.

So I find in this particular case that necessity has not been met in these circumstances. I deny the application for her evidence to be admitted under the principled exception to the hearsay rule. C. The acquittal decision [ 28 ] The trial judge began the acquittal decision with the following statement: Mr. Lachance is charged with offences arising out an incident where Constable Willard reported that a firearm had been pointed at him. In addition to calling viva voce evidence, there were a number of admissions made by counsel.

The sole issue is whether the Crown has proven beyond a reasonable doubt that it was Mr. Lachance who pointed a firearm at Constable Willard. (Emphasis added) [ 29 ] Having identified this issue, the trial judge briefly reviewed the evidence of Cst. Willard and Cst. Bishop as to what occurred from the time they arrived at the house until Mr. Lachance and Ms. Littlewolfe came out. He referred to testimony from other officers that the house was searched and that a .22 calibre rifle had been found, but no shotgun. He summarized what he described as Mr.

Lachance’s “long and detailed account of the day leading up to his arrest”, including his story that he had been let into the house by a man who was there with Ms. Strongarm, that he had fought the man and thrown him out, that Ms. Littlewolfe and Ms. Strongarm had also started fighting, that he had pulled Ms. Strongarm off Ms. Littlewolfe, and that Ms. Strongarm had then said she would call the police and left. [ 30 ] The trial judge then referred to Mr. Lachance’s evidence that he had gone to sleep after Ms. Strongarm left, had dreamed that the police had come, and that the house was surrounded when he woke up.

He noted that Mr. Lachance had testified that after waking up

to find the police there, he sent the Facebook message calling Ms. Strongarm a rat. After referring to Mr. Lachance’s evidence that he hadnot handled or pointed a gun at anyone that day, and that no one had come to the house while he was awake, the trial judge reiterated that“the sole issue is the identification of the person who pointed the gun at Constable Willard”. [31] The trial judge next commented that he must keep the difficulties with eyewitness identification in mind, referring to R v John,2021 SKCA 83 at para 18, 405 CCC (3d) 184, where the following passage in R v Field, 2018 BCCA 253, 362 CCC (3d) 401, leave toappeal to SCC refused, , was adopted: (

i) Eyewitness evidence by a stranger: Experience has shown that eyewitness evidence proffered by a stranger to the accused is the leastreliable identification evidence. It has been described as “inherently unreliable”: R. v. M.B., 2017 ONCA 653at para. 29. In light of themany instances in which identification has proved erroneous, the trier of fact must be cognizant of “the inherent frailties of identificationevidence arising from the psychological fact of the unreliability of human observation and recollection”: R. v.

Burke, (SCC), [1996] 1 S.C.R. 474 at para. 52. [32] Having sounded this cautionary note, the trial judge assessed the identification evidence. He observed that Cst. Willard was astranger to Mr. Lachance, had never met him before that night or seen him since, and that when he identified Mr. Lachance, he was theonly unidentified male person in the courtroom and he was seated in the prisoner’s box wearing orange prison attire. He emphasized thatCst. Willard had mere seconds when he was able to observe the person on the deck and identify them. He then described the difficultcircumstances faced by Cst.

Willard at the time, as follows: Also in terms of the circumstances surrounding the observation, I note that in an attempt to get away from the danger he fell sideways intotree. Because he had fallen into the tree, he was not able to get to his side arm. He stated he was in absolute fear, he was devastated. Hethought that he was going to lose his life. He stated he panicked. All of this was an understandable reaction but it must be considered indetermining the reliability of his identification evidence.

His ability to describe the person who pointed the gun; when asked to describe, he was not able to give a description of the person, norrecall what the person was wearing. When asked what his hair looked like he stated that it looked like the accused sitting opposite him inthe courtroom. He gave no further description. [33] Having finished his

summary of the law and the facts relating to the identification evidence, the trial judge stated thisconclusion: On the basis of these reasons, I find that the identification of Mr Lachance as the one holding the gun to be unreliable and of littleprobative value. I do not find Constable Willard to be a dishonest witness, just mistaken as a result of the stress that he was placed underthat night. [34] The trial judge then turned to the Crown’s submission that he could still find that Mr. Lachance was the person holding the gunbased on the circumstantial evidence.

He referred to the testimony by both officers that they had heard a male voice telling Cst. Willard toget out of the back yard, that no one had arrived at or left the house, and that Mr. Lachance was the only sole male person who waspresent. He noted that Mr. Lachance had also testified that he and Ms. Littlewolfe were the only persons present when he was awake. [35] The trial judge observed that there were a number of difficulties with the line of reasoning proposed by the Crown. He thenlisted four. First, as to the evidence that both constables heard a male person yell, he commented that Cst.

Bishop did not see a manholding the gun and that Cst. Willard was trying to get away at the time. As he put it, “[t]here is no evidence that the male who yelled washolding the gun”. Second, he found that there was a period of time after Cst. Willard saw the gun when the officers were not watching thefront and back of the house to ensure that no one left the house. [36] Third, the trial judge emphasized that a shotgun was never located in the residence, but that Cst. Willard was certain from theoutset that it was a shotgun that had been pointed at him, had told Cst.

Bishop at the scene that it was a shotgun, had testified it was ashotgun and that he qualified on a shotgun once a year and knew the difference between a shotgun and a .22. As he then commented, “[i]fI accept that it was a shotgun that was used, that was being pointed at him, if the shotgun left the premises before the police could coverthe exits, then so could the person holding the shotgun”. [37] Finally, the trial judge said this: And lastly, the testimony of the accused. He stated that he did not point a gun at the officer.

Although I have concerns regarding hisevidence about dreaming that there were police surrounding his residence, I have no reason to reject his other evidence. None of it wascontradicted by other evidence and he testified in a straightforward and detailed manner. In fact, some of it was corroborated by otherevidence. Specifically, the evidence of him texting and Facebook messaging that Danelle was a rat. His evidence made sense and I acceptit. [38] Having concluded his analysis, the trial judge found Mr.

Lachance not guilty on all counts, summarizing his reasons for doingso as follows: On the whole of the evidence, I find that the Crown has not proven beyond a reasonable doubt that he was in possession of a firearm andpointing it at Constable Willard on the 8th of August 2020. And as he was only at the house intermittently, there was no evidence that he was ever in possession of the .22 calibre rifle that was foundin the house as well.

So as each of the counts 1 though 5, count 7 and count 9 depend on a finding that he was in possession of a firearm, I find him not guiltyon each one of those counts. With respect to the assault on Danelle Strongarm, the only evidence in relation to Danelle Strongarm is from Mr. Lachance himself that he-- that she was involved in an assault with his baby mama and he only pulled her off of her and told her to leave the residence. I find him -- on that basis, I find him not guilty of count 7 -- count 8 as well. III. ISSUES AND STANDARD OF REVIEW [39] The Crown’s right to appeal an acquittal for an indictable offence is conferred by s. 676(1)(

a) of the Criminal Code and islimited to questions of law alone. The standard of review in relation to an alleged error of law is correctness.

Further, although the Crownneed not demonstrate that the verdict would necessarily have been different but for the error, to obtain a new trial it must “satisfy theappellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to havehad a material bearing on the acquittal”: R v Graveline, 2006 SCC 16 at para 14, [2006] 1 SCR 609 [Graveline]. [40] The Crown has no right to appeal on the ground that there has been an unreasonable acquittal: R v Ballantyne, 2015 SKCA 107[Ballantyne]. [41] The Crown has identified the following grounds of appeal: (

a) Did the trial judge err by failing to consider Mr. Lachance’s admission that he had possession of a firearm? (

b) Did the trial judge err by failing to consider the totality of the evidence relating to identity? (

c) Did the trial judge err by refusing to accept Crown counsel’s unsworn representations as evidence in the hearsay voir dire? (

d) Did the trial judge apply the wrong legal test in determining whether necessity had been proven on the hearsay voir dire? [42] A failure to consider relevant evidence or to consider the totality of the evidence may constitute an error of law: R v J.M.H.,2011 SCC 45 at paras 31–32, [2011] 3 SCR 197 [J.M.H.].

The first and second grounds are accordingly proper grounds of appeal. [43] The Crown also contends that an allegation that a trial judge has erred in deciding whether the Crown has proven the necessitycomponent of the principled exception to the hearsay rule raises a question of law, reviewable on a correctness standard of review.However, here, as on any appeal, the standard of review depends on the matter at issue.

The reasoning of Karakatsanis J. in R vYouvarajah, 2013 SCC 41, [2013] 2 SCR 720 [Youvarajah], demonstrates this principle in relation to the right to appeal a determination ofthreshold reliability for the purpose of the principled exception: [31] The admissibility of hearsay evidence, such as the prior inconsistent statement in this case, is a question of law. Of course, thefactual findings that go into that determination are entitled to deference and are not challenged in this case.

As well, a trial judge is wellplaced to assess the hearsay dangers in a particular case and the effectiveness of any safeguards to assist in overcoming them. Thus, absentan error in principle, the trial judge’s determination of threshold reliability is entitled to deference: R. v.

Couture, 2007 SCC 28, [2007] 2S.C.R. 517 (S.C.C.), at para. 81. [44] In R v Bridgman, 2017 ONCA 940, 357 CCC (3d) 213 [Bridgman], Fairburn J.A. drew the same distinction between thequestion of whether the trial judge adopted and applied the correct legal standard to the facts, and the weighing that occurs whenconsidering both necessity and reliability, stating as follows: [38] A correctness standard applies to the “ultimate question of whether the trial judge properly applied the criteria relevant to theadmissibility of the evidence to the facts as found by the trial judge”: R. v.

Merz (1999), (ON CA), 127 O.A.C. 1 (Ont.C.A.), at para. 49, leave to appeal refused, [2000] S.C.C.A. No. 240 (S.C.C.). Absent a demonstrated error, decisions regarding whetherthe circumstances support threshold reliability and necessity, and the balance between probative value and prejudicial effect, are oweddeference: R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252 (Ont. C.A.), at para. 112, leave to appeal refused, [2014] S.C.C.A.

No. 193(S.C.C.). [45] The same approach is reflected in R v Moir, 2020 BCCA 116 [Moir], where Newbury J.A., having reviewed decisions byvarious appellate courts dealing with the standard of review on the question of the admissibility of hearsay evidence, concluded that “thestandard of correctness governs the question of what ‘test’ or standard should be applied to admissibility, and to any other issue ofprinciple; but that in the actual assessment or ‘weighing’ of the relevant factors, the trial judge should not be ‘second guessed’ by [anappellate] court” (at para 82).

See also, to the same effect, McKinnon Estate v Cadegan, 2021 NSCA 79 at para 28; R v Chretien, 2014ONCA 403 at paras 44–45, 309 CCC (3d) 418; R v Dirie, 2022 ONCA 767; R v Potter, 2020 NSCA 9 at para 518, 385 CCC (3d) 1; R vLawrence, 2020 ABCA 268 at para 14; R v Androsoff, 2023 SKCA 42. These cases reflect the fact that the assessment of necessity andreliability is case-specific and that the governing criteria are necessarily flexible.

I note, by way of example, that the same considerationsapply and the same approach to appellate review is taken, to the appellate review of decisions relating to the admissibility of expertevidence: see R v D.D., 2000 SCC 43 at paras 12–13, [2000] 2 SCR 275; Frondall v Frondall, 2020 SKCA 135 at para 20; and Hess vThomas Estate, 2019 SKCA 26 at para 30. [46] In my view, the standard of review to be applied in relation to the third and fourth questions is that adopted in Moir, Bridgmanand Youvarajah.

IV. ANALYSIS A. Did the trial judge err by failing to consider Mr. Lachance’s admission thathe had possession of a firearm? [47] The Crown submits that the trial judge erred by failing to consider Mr. Lachance’s admissions that he was holding a firearmon August 6, 2020, two days before the incidents at the house, and that he knew he was in breach of an order by doing so. The Crown saysthat these admissions proved all elements of some of the charges.

It notes, for example, that count 5 alleged that he possessed a Lakefield.22 calibre firearm knowing that he was not the holder of a licence under which he might possess it, contrary to s. 92(1) of the CriminalCode. Count 7 alleged that he possessed that firearm while he was prohibited by court order from possessing any firearm, contrary to s.117.01(1). [48] The Crown also emphasizes that the indictment specified that these two offences were alleged to have been committed “on orabout” August 8, 2020, and that the date was not an essential element of the offence in any event.

It refers to s. 601(4.1) of the CriminalCode in support of that proposition:

(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to (

a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribedperiod of limitation, if any; … [49] The Crown relies in this context on the principle that a failure to consider the totality of the evidence is a reversible error oflaw: see, for example, Ballantyne at para 42; J.M.H. at para 31; R v Stewart, 2022 BCCA 367 at para 41; R v Morin, (SCC), [1992] 3 SCR 286 at 295–296. It notes that the trial judge did not refer to Mr.

Lachance’s admissions in the acquittal decision andsays that the failure to convict him of having been in possession on August 6 confirms that this was the result of not having taken theminto account. In the Crown’s view, this error of law was also the result of or reflected another error – although one it did not advance as aseparate ground of appeal – that being the trial judge’s assertion that the sole issue was whether Mr. Lachance was the person whopointed a firearm at Cst.

Willard on August 8. [50] The Crown also submits that, quite apart from the fact that these admissions should have resulted in convictions for offencescommitted on August 6, the trial judge erred by deciding the case as if that evidence did not exist. In this context, it refers to the statementby the trial judge that “there was no evidence that [Mr. Lachance] was ever in possession of the .22 calibre rifle that was found in thehouse”. The Crown asserts that this statement was simply not true, noting that both the admission and the fact that Mr.

Lachance was theonly man in the house where a similar looking .22 calibre rifle was found was evidence of possession. [51] Mr. Lachance makes two key points in relation to this ground of appeal. First, to the extent that the issue relates to the failure toconvict him of possession of a firearm on August 6, 2020, it contends that the Crown never suggested to the trial judge that he should beconvicted on that basis. Rather, he says that the Crown argued only that the evidence proved that Mr. Lachance was the male who pointeda firearm at Cst. Willard.

He submits that the trial judge cannot be found to have erred by failing to consider a pathway to conviction thatthe Crown never advanced. This defence argument places Crown counsel’s closing argument at trial at the center of this ground of appeal.I will accordingly outline those submissions in some detail. [52] Crown counsel’s closing argument at trial was focused throughout on the events of August 8, 2020, and in particular, on thequestion of whether Mr. Lachance was the person who pointed the gun at Cst. Willard. She began with a review of Cst.

Willard’sevidence of his confrontation with the man on the rear deck, followed by a brief reference to the in-court identification. She noted Cst.Bishop’s testimony that he heard the same male voice and “metal-on-metal racking” as Cst. Willard. She said that the house was thenwatched to ensure no one came or went – circumstantial evidence that was of central concern for the trial judge – and that only one maleand one female came out. As she then said: … And the Crown would suggest that that is the only male that is possible to have been the individual that pointed a firearm at ConstableWillard.

There’s no other male found on scene. [53] The trial judge responded with questions about the period after Cst. Willard retreated from the house, with a view to confirmingwhether the house was constantly under observation. In response, Crown counsel reiterated that there was no evidence anyone left orentered during the brief period after Cst. Willard ran and the other police officers arrived. She posited that Mr. Lachance’s claim that hefell asleep, dreamt and, having awakened to find the SWAT team present, sent threatening messages to Ms.

Strongarm and drank a bottleof whiskey made no sense. [54] Crown counsel did refer to Mr. Lachance’s admissions relating to the photograph, but only to suggest that they constitutedevidence that Mr. Lachance had possession of that firearm on August 6. That is evident from her submissions as to what the trial judgeshould take from the admissions, which were as follows: But that you can take from the evidence that he was in possession of a firearm two days prior that looks similar from what he’s testified.And when asked about that, his reasoning is that it belongs to a 14-year-old brother.

I mean, choose -- in terms of accepting defence explanations or -- there has to be some basis for that -- for that theory.

Here, the Crown would suggest that there’s no air of reality to what Jacky said. It doesn’t make sense, first of all, based on the totality of the evidence. And his explanation is both convenient and seemed to be throwing a 14-year-old kid who doesn’t live there under the bus. [ 55 ] This does not propose, directly or indirectly, that Mr. Lachance should be convicted of having committed an offence on August 6. It is concerned with whether the gun in the photograph was the same gun as the one found at the house, and with Mr. Lachance’s claim that the firearm did not belong to him, but to his brother.

Those issues had no bearing on whether Mr. Lachance was in possession of a firearm on August 6. [ 56 ] Following a further brief exchange with the trial judge as to whether it would make sense for a 14-year-old to have a firearm – in which the trial judge pointed out why it could – Crown counsel suggested that Mr. Lachance’s story of the dream was “simply a convenient excuse” to explain why he was not the person on the deck. The trial judge then turned to Cst.

Willard’s in-court identification, initiating the following exchange with Crown counsel: THE COURT: Constable Willard; should I place any weight on his identification of the accused? He had never seen before. He saw him for mere seconds in a sit where he was concentrating on the gun. He said that he immediately panicked and tried to get away. He fell down, fell and got trapped between the trees, he couldn’t even reach his own gun. When he got -- when he finally got to his feet, he ran away and had to go sit in the police car and couldn’t be involved in it any further than that.

So I’m -- and I’m not suggesting he should not have been panicked. I’m not suggesting that -- that he should not have been in fear of his life -- for his life. But we’ve got eye-witness identification of -- of a person who standing up above him with a - - Constable Willard during examination in-chief was very confident that it was a shotgun. And there’s a world of difference between the end of -- the business end of a shotgun and the business end of a .22 calibre rifle. And no -- no request by -- of him for a description of the gun. And he could see the barrel of it.

When I look at the -- the photo of the .22, it doesn’t -- well, first of all, the end of a .22 is -- well, it’s smaller than the end of my pen. And -- sorry, just one second. So he’s confident about that. He has -- he was never shown a photo lineup; I’m not sure why. And so never asked to identify anybody until he arrives in the courtroom. He’s seated opposite Mr. Lachance in the box. Mr. Lachance is the -- besides myself and the court guard, was the only other male in the courtroom.

And the -- I would suggest that the case law is very strong in that the Court can place little or no weight on that type of evidence. [ 57 ] Crown counsel responded that she did not disagree. The trial judge then described his understanding of the Crown’s position as to the manner in which the identification evidence should be used, which was adopted by Crown counsel, as follows: THE COURT: So the only evidence, you’re suggesting, is that the circumstantial evidence means that it would have to be Mr.

Lachance as being the person who pointed -- well, I should accept that the officer had a firearm pointed at him, and that I should accept his evidence that the -- I should accept his evidence -- well, that he’s had a firearm pointed at him and that the only reasonable explanation, given the circumstances, is that it was Mr. Lachance who pointed the firearm at him. MS. LE: Yes, Your Honour. [ 58 ] Crown counsel observed that Cst. Willard had said it was clearly a male that he saw, and that his hair looked like Mr. Lachance’s hair.

She reiterated her view as to the weight that should be accorded to the in-court identification, what the Court should get from that evidence, and as to the strength of the circumstantial evidence: MS. LE: That’s the only thing I would know, but I agree that I think docket -- not docket, but in trial identification, given that the accused is clearly in custody and the only other male in the courtroom other than the judge, I think that the case law is strong in relation to little weight given to that identification. … MS.

LE: And the main point that I would hope to take out of Constable -- evidence -- Constable Willard’s evidence is that he was clear that it was a male that pointed a firearm at him. And I appreciate there’s a difference between a shotgun and a rifle, but both officers testified that they were consistent in hearing the metal-on- metal racking and what appeared to be a firearm pointing at the officer.

And the Crown would suggest that mistaking the type of firearmdoesn’t take away from the actual sound of firearm racking andthat circumstantially, the case is still strong that a firearm wasfound and that only one male was found in the house, would bethe Crown’s positions, Your Honour. [59] The conversation between the trial judge and Crown counsel then turned to what the two constables heard and saw when thefirearm was pointed at Cst. Willard, including his in-court demonstration of the pumping motion that would produce a racking sound froma shotgun.

The trial judge noted that the firearm at the house was a bolt action, which would result in a different kind of movement.Crown counsel commented that these questions were not put to Cst. Willard, but that “pulling this part of the firearm could create theracking of the metal”. Having reiterated his concerns with the value of the in-court identification, the trial judge focused once again onwhat occurred after Cst. Willard fled from the back yard, resulting in this final exchange between him and Crown counsel: THE COURT:Yeah. They retreated to the car, according to my notes ofConstable Willard.

His partner grabbed the carbine -- carbine,asked for a call for backup, a perimeter was set up and I wascalled off the scene. But as I said, we seem to have conflicting evidence as to wherethe car was, and whether or not they would be able to see the frontof the house. I guess my concern is if -- if I’m going -- if it’s going to be -- I’mto find this -- find him guilty on circumstantial evidence, it has tobe the only reasonable explanation; is that correct?MS.

LE: Yes.THE COURT:And to suggest -- I don’t think I can -- well, I know I can -- I don’tbelieve I can find -- and I’m hoping to hear from you, that therewas no opportunity for anybody else to leave with a shotgun.MS. LE: Not to the level that the case law on exclusive opportunity wouldexpect of us, Your Honour. No.THE COURT:Okay.MS.

LE: I think that the case is based entirely, at this point, on thecircumstances and that the Crown would submit it is strongcircumstance, however, that coupled together with the accused’sevidence that he was the only other person in the residence. [60] On the whole of it, and in light of both what Crown counsel said and what she did not say, it is clear that the Crown presentedonly one theory of liability; that is, that the evidence demonstrated that Mr. Lachance had committed the offences with which he wascharged on August 8.

Indeed, the Crown’s submissions were directed entirely to proof of a particular event, that being the incident on theback deck. That is why the trial judge said the “sole issue” was whether the Crown had proven beyond a reasonable doubt that it was Mr.Lachance who pointed a firearm at Cst. Willard. On both occasions that he made that comment, he was discussing what happened on thedeck. His focus on that issue reflects the fact that he was dealing with the live issues in the case, as it had been presented by the Crown.He also dealt with the alleged assault on Ms.

Strongarm, which was the other charge that the Crown had pressed during the trial. [61] On the most generous reading of the record, the Crown’s theory might be said to have encompassed two alternatives withrespect to the firearms related offences, the first being that Mr. Lachance was the man on the deck, and the second being that thecircumstantial evidence proved that he was in possession of the firearm found in the house, regardless of whether it demonstrated that hewas the man on the deck. The trial judge dealt with that second alternative, despite that it had not been developed by the Crown.

That iswhy, after concluding that the Crown had not proven Mr. Lachance was the man on the deck, he said, “And as he was only at the houseintermittently, there was no evidence that he was ever in possession of the .22 calibre rifle that was found in the house as well” (emphasisadded). [62] However, the Crown’s theory did not contemplate a conviction based on possession of a firearm on August 6. Nor did thesubmissions of defence counsel deal with that alternative. [63] For that reason, Mr. Lachance’s argument engages the principle that was applied in R v Barrett, 2019 SKCA 6.

There, theCrown had argued at trial that the respondents were liable as aiders and abettors pursuant to s. 21(1) of the Criminal Code. On appeal, itsubmitted that the trial judge should also have considered whether they were common intent parties within the meaning of s. 21(2). Inrejecting that argument, Leurer J.A. noted that “[t]here is a long line of authority, often traced back to Wexler v The King, (SCC), [1939] SCR 350… constraining the ability of the Crown to advance theories of liability that differ from those presented at trial” (atpara 42).

He also noted this statement by Doherty J.A. in R v Varga (1994), (ON CA), 90 CCC (3d) 484 (WL) (OntCA): [26] … [T]there are situations in which an appellate court should not address the merits of a ground of appeal advanced by the Crowneven though that ground alleges an error in law that is germane to the acquittal. For example, the Crown cannot advance a new theory ofliability on appeal…Nor can the Crown raise arguments on appeal that it chose not to advance at trial: R. v.

Penno (1990), (SCC), 59 C.C.C. (3d) 344 [80 C.R. (3d) 97] (S.C.C.) per McLachlin J. (concurring in result) at p. 365 [C.C.C., p. 122 C.R.]; R. v. Egger(1993), (SCC), 82 C.C.C. (3d) 193 [21 C.R. (4th) 186] (S.C.C.) at p. 214 [C.C.C., p. 207 C.R.]. [27] These examples share a common feature. A Crown appeal cannot be the means whereby the Crown puts forward a different casethan the one it chose to advance at trial.

It offends double jeopardy principles, even as modified by the Crown’’s right of appeal, to subjectan accused, who has been acquitted, to a second trial based on arguments raised by the Crown for the first time on appeal. Doublejeopardy principles suffer even greater harm where the arguments advanced on appeal contradict positions taken by the Crown at trial.

[64] Other examples of the application of the principle that the Crown cannot advance a new theory of liability on appeal include Rv Nguyen, 2008 SKCA 160 at paras 39–42, 240 CCC (3d) 39; R v Sundman, 2021 BCCA 53 at para 123, 402 CCC (3d) 463; R v Hiscoe,2013 NSCA 48 at para 17, 297 CCC (3d) 35; R v Patel, 2017 ONCA 702 at para 61, 356 CCC (3d) 187; R v Tran, 2016 ONCA 48 at para4; and R v Suarez-Noa, 2017 ONCA 627 at paras 30–39, 350 CCC (3d) 267. This line of authority is a complete answer to the Crown’sargument that the trial judge erred by failing to convict Mr.

Lachance of possession of a firearm on August 6 as a result of his failure toconsider his admissions. The trial judge did not err by failing to consider a pathway to conviction which was never advanced by theCrown. [65] Nor am I persuaded that the trial judge failed to consider the evidence of the admissions for other purposes. The fact that theacquittal decision does not refer to this evidence does not convince me otherwise. It is trite law that a trial judge need not refer to all of theevidence or to every issue that might have arisen on the evidence.

This reflects the fact that an appellate court must read the reasons of atrial or sentencing judge as a whole, in the context of the record. A failure to advert to certain evidence or an issue may or may not bemeaningful. As this Court recently noted in R v Mosquito, 2023 SKCA 29 [Mosquito], the principles that govern the

interpretation ofreasons where they are alleged to be inadequate are equally instructive where an appellant contends that the trial judge has failed toconsider evidence or to address a material issue. Justice Karakatsanis summarized those principles in R v G.F., 2021 SCC 20, 404 CCC(3d) 1 [G.F.], as follows: [69] This Court has repeatedly and consistently emphasized the importance of a functional and contextual reading of a trial judge’sreasons when those reasons are alleged to be insufficient: ...

Appellate courts ... must assess whether the reasons, read in context and as awhole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permitseffective appellate review. As McLachlin C.J. put it in [R v R.E.M., 2008 SCC 51, [2008] 3 SCR 3], “The foundations of the judge’sdecision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trialunfolded”: para. 17.

And as Charron J. stated in [R v Dinardo, 2008 SCC 24, [2008] 1 SCR 788], “the inquiry into the sufficiency of thereasons should be directed at whether the reasons respond to the case’s live issues”: para. 31. [66] As this Court also pointed out in Mosquito, Brown and Rowe JJ. usefully elaborated on this principle in their concurringreasons in G.F., commenting as follows: [109] …[A]n appellate reviewer’s role is not discharged by giving trial reasons for judgment a once-over-lightly perusal, but by readingand considering the trial judgment in order to assess whether, in light of the evidence and arguments at trial, it shows that the trial judgediscerned and decided the live issues so as to permit meaningful appellate review ([R v Sheppard, 2002 SCC 26, [2002] 1 SCR 869], atpara. 28; R.E.M., at para. 57). … [67] The question, then, is whether the acquittal decision, interpreted in this fashion, demonstrates that the trial judge took theadmissions into account as part of the circumstantial evidence when deciding whether Mr.

Lachance was the person who pointed the gunat Cst. Willard, or for any other purpose. It is of some significance that the photograph was not the subject of a fleeting reference. TheCrown tried to make something of this evidence. Its meaning was addressed both in Mr. Lachance’s evidence in chief and in his cross-examination. [68] Further, both Crown counsel and defence counsel adverted to and were asked questions by the trial judge about the admissionsin their closing arguments.

Caution is very much in order when a court is considering whether to draw inferences based on exchangesbetween the judge and counsel as to the reasons a judge has decided as they did (R v Smith (2001), (ON CA), 161CCC (3d) 1 (Ont CA) at para 45. However, it is sometimes appropriate to do so.

That may be so, for example, where, as here, it is allegedby an appellant that the failure by the trial judge to refer to an argument or evidence in their reasons signals a failure to consider it: R vR.O., 2022 BCCA 270 at paras 32–38. [69] I am also mindful of the fact that the admissions were not, when considered in light of all of the other evidence, of greatprobative value in relation to the central question posed by the Crown – did Mr. Lachance have possession of a firearm two days later? Thenexus between Mr.

Lachance’s possession of a firearm on August 6, and the question of whether he possessed a similarly looking gun onAugust 8, is weak. That is particularly so given that Cst. Willard described the gun as a shotgun, that there was no evidence the gunbelonged to Mr. Lachance, and that Mr. Lachance was neither a resident nor the owner of the house. If the admissions had been highlyprobative, the failure to refer to them in the reasons would have given me pause, but they are not. [70] As is noted above, the Crown also argued that the comment by the trial judge that “there was no evidence that [Mr.

Lachance]was ever in possession of the .22 calibre rifle that was found in the house” demonstrates that he did not consider the admissions for anyother purpose. With respect, this submission ignores the fact that this Court must not only read the reasons as a whole and in context but,as Martin J. said in R v Chung, 2020 SCC 8, [2020] 1 SCR 405, “should not parse the reasons of the trial judge in a line-by-line search forerrors” (at para 13).

While the specific language chosen by the trial judge may signal an error and thus cannot be simply glossed over,appellate courts “should be cautious before seizing on ambiguous or imprecise wording as demonstrating error”: R v Thalheimer, 2022SKCA 25 at para 56, 411 CCC (3d) 208. As Tholl J.A. emphasized in R v Van Deventer, 2021 SKCA 163, 407 CCC (3d) 291, “anappellate court…should not isolate problematic words or sentences and elevate their importance beyond that which they should attract” (atpara 31). [71] How, then, do these principles apply to the “no evidence” statement?

That observation followed a review by the trial judge ofaspects of the circumstantial evidence that, in his view, weighed against the Crown’s assertion that he should, notwithstanding the frailtiesof the in-court identification, find that Mr. Lachance was the man holding the gun on the deck based on the circumstantial evidence.Having reviewed that evidence, the trial judge said that he had no reason to reject Mr. Lachance’s evidence – which was, of course, theother direct evidence of what occurred that day. He then said this as to proof that Mr.

Lachance was the man on the deck: On the whole of the evidence, I find that the Crown has not proven beyond a reasonable doubt that he was in possession of a firearm andpointing it at Constable Willard on the 8th of August 2020. [72] It was at that point the trail judge made the impugned statement, as part of the following sentence:

And as he was only at the house intermittently, there was no evidence that he was ever in possession of the .22 calibre rifle that was foundin the house as well. (Emphasis added) [73] I do not interpret this sentence as a statement that there was no evidence whatsoever that might have been probative to thequestion of possession of that firearm. Rather, read in the manner specified in G.F., it addressed the possibility that if Mr. Lachance was inpossession of the premises, he might for that reason be found to be in possession of the disassembled firearm that was discovered duringthe search.

Importantly, it was only after having rejected this alternative route to a conviction that he found Mr. Lachance not guilty on allof the firearms related offences, stating as follows: So as each of the counts 1 through 5, count 7 and count 9 depend on a finding that he was in possession of a firearm, I find him not guiltyon each one of those counts. [74] Taking all of this into consideration, I am not persuaded that the trial judge erred by failing to take account of the admissions,or by failing to convict Mr. Lachance of possession of a firearm on August 6.

Nor did his statement that the sole issue was whether Mr.Lachance pointed the firearm at Cst. Willard signal an error. B. Did the trial judge err by failing to consider the totality of the evidencerelating to identity? [75] The Crown submits that the trial judge also erred by considering various parts of the evidence in isolation rather thanconsidering the evidence as a whole. It relies in this context on R v B.(G.), (SCC), [1990] 2 SCR 30 [B.(G.). No. 1], R vB.(G.), (SCC), [1990] 2 SCR 57 [B.(G.) No. 2]; and R v Armbruster, 2010 SKCA 25.

As McLachlin J. (as she then was)wrote in B.(G.) No. 2, “it is an error of law for the trial judge to direct that the reasonable doubt standard must be applied to individualpieces of evidence” (at 79). Rather, individual pieces of evidence must be examined in the context of all of the evidence: R v Morin, (SCC), [1988] 2 SCR 345 at 360–362 [Morin No. 1]. [76] The principal error of this kind that the Crown claims to have occurred is that the trial judge first assessed the direct evidencethat Mr. Lachance had pointed a firearm at Cst. Willard – that being the in-court identification by Cst.

Willard – and then, having found itto be unreliable and of little probative value, dealt separately with the circumstantial evidence before concluding that it too wasinsufficient to prove guilt. The Crown also contends that at the second stage of this analysis, the trial judge considered only some, but notall, of the circumstantial evidence. [77] I would first note that, as in relation to the first ground of appeal, the trial judge dealt with the identification evidence in amanner consistent with the position advanced by Crown counsel.

The trial judge initiated the discussion of that evidence by askingwhether he should place any weight on it. He adverted to the circumstances that, in his view, undermined its reliability. He suggested toCrown counsel that “the case law is very strong…that the Court can place little or no weight on that type of evidence” – which Iunderstand to mean evidence arising in similar circumstances, rather than every in-court identification.

Crown counsel not only confirmedshe did not disagree, but explicitly adopted the trial judge’s suggestion that it was the Crown’s position that the answer to the identityquestion turned on the circumstantial evidence; that is, that he “should accept [Cst. Willard’s] evidence -- well, that he’s had a firearmpointed at him and that the only reasonable explanation, given the circumstances, is that it was Mr.

Lachance who pointed the firearm athim”. [78] As an aside, I note that in its factum, the Crown – in what can only be described as a suggestion that the trial judge should nothave discussed this issue in the way he did with Crown counsel – stated that the trial judge, by advancing these questions in that manner,he “put words in counsel’s mouth”. With respect, it is entirely appropriate for a judge to ask questions for the purpose of testing andclarifying the position of a party.

There is nothing here to suggest that the trial judge attempted to mislead, bully or otherwise deal unfairlywith counsel. [79] In any event, having emphasized the importance of the circumstantial evidence in this way, Crown counsel at trial confirmedher position as to the reliability of the in-court identification evidence of Cst. Willard, and the manner in which it should be used. I willrepeat her position in this respect for ease of reference: MS.

LE: …I agree that I think docket -- not docket, but in trialidentification, given that the accused is clearly in custody and theonly other male in the courtroom other than the judge, I think thatthe case law is strong in relation to little weight given to thatidentification. … MS. LE: And the main point that I would hope to take out of Constable --evidence -- Constable Willard’s evidence is that he was clear thatit was a male that pointed a firearm at him. … [80] The position taken by Crown counsel on this point was both reasonable and consistent with the law.

Eyewitness identificationevidence is notoriously unreliable, even when it is delivered by an honest, sincere and confident witness: R v Hibbert, 2002 SCC 39 atparas 50–52, [2002] 2 SCR 445 [Hibbert].

As the Ontario Court of Appeal noted in its per curiam decision in R v Gough, 2013 ONCA137, it is not only acceptable, but essential that trial judges be aware of the risks associated with eyewitness identification evidence, andattend to the circumstances that would be relevant to its reliability: [36] The trier of fact must take into account the frailties of eyewitness identification in considering such issues as whether the suspectwas known to the witness, the circumstances of the contact during the commission of the crime (including whether the opportunity to see

the suspect was lengthy or fleeting) and whether the circumstances surrounding the opportunity to observe the suspect were stressful; R. v.Carpenter, [1998] O.J. No. 1819 (C.A.), at para. 1; Nikolovski, at 1210; R. v. Francis (2002), (ON CA), 165 O.A.C.131, [2002] O.J.

No. 4010, at para. 8. [81] As Arbour J. said in Hibbert, “it is important to remember that the danger associated with eyewitness in-court identification isthat it is deceptively credible, largely because it is honest and sincere…The danger of wrongful conviction arising from faulty butapparently persuasive eyewitness identification has been well documented” (at paras 50–51).

This mirrors the observation by Doherty J.A.in R v Quercia (1990), (ON CA), 60 CCC (3d) 380 (WL) (Ont CA), that “[t]he spectre of erroneous convictions basedon honest and convincing, but mistaken, eyewitness identification haunts the criminal law” (at para 5). [82] This guidance applies regardless of the principle that, as the Crown stressed, in-court identification evidence must beconsidered together with all of the evidence.

Indeed, other evidence can corroborate identification evidence and thus support its reliability,an issue that has been frequently addressed in relation to the assessment of threshold reliability in the context of the principled exception tothe hearsay rule: see, for example, R v Hudson, 2020 ONCA 507 at paras 30–35, 391 CCC (3d) 208. Here, for example, Cst. Bishop’sevidence that he also heard a male voice yell and the sound of a gun racking while standing very close to the deck – which was referred toby the trial judge – corroborated Cst. Willard’s evidence that there was a man with a gun standing on the deck.

The evidence that Mr.Lachance was the only man in the house, that a gun was found in the house, and that he had possession of a gun with similarities two daysbefore could also be considered corroborative of the fact that the man was Mr. Lachance. [83] However, I am not persuaded that the trial judge failed to take the identification evidence into account, or to put the matterdifferently, that he gave the in-court identification evidence no weight. The phrase he used in the colloquy with Crown counsel was “littleor no weight”.

Further, the trial judge’s analysis of the “sole issue” in the acquittal decision confirmed he took it into account. He did notsay, as the Crown alleged, that the law required that he give little or no weight to the in-court identification. Rather, he began his analysisas follows: In assessing his evidence regarding the shooter, I must keep in mind the difficulties with eyewitness identification. In R. v.

John, a decisionfrom 2021 SKCA 83, the Court stated the following: (as read) (i) [In relation to] Eyewitness by a stranger: Experience has shown that eyewitness evidence proffered by a stranger to the accused is theleast reliable identification evidence.

It has been described as “inherently unreliable.” In light of the many instances in which identificationhas proved erroneous, the trier of fact must be cognizant of “the inherent frailties of identification evidence arising from the psychologicalfact of the unreliability of human observation and recollection.” Keeping that in mind, I must examine the evidence of Constable Willard, of his identification of Mr. Lachance, who was a stranger to himat that time. [84] The trial judge then undertook this assessment, attending – as the law requires – to the circumstantial evidence bearing directlyon Cst.

Willard’s ability to observe the person on the deck and on the in-court identification. He emphasized that Mr. Lachance was astranger to Cst. Willard; that he had “mere seconds” to observe him; that he was “in absolute fear…devastated”; and that he did notdescribe the person or what he was wearing. Based on these considerations, he concluded that the in-court identification was “unreliableand of little probative value”.

He did not say it was of no value or that he would not consider it together with the other evidence, but in amanner that recognized the significance of these inherent frailties. [85] The fact that the trial judge assessed the reliability of this evidence in this way at the outset did not constitute error. Read incontext, I take the trial judge’s statement to mean that he had concluded, in the particular circumstances of the case, that in-courtidentification itself added very little to the Crown side of the ledger.

That does not mean that he did not understand that the in-courtidentification, like the remainder of Cst. Willard’s evidence of what he saw and heard, was relevant evidence and had to be consideredwhen deciding whether the Crown had proven beyond a reasonable doubt that Mr. Lachance was the person who pointed the gun.

In thecircumstances of this case, the trial judge certainly cannot be faulted for having found, as he did, and as the Crown conceded, Cst.Willard’s in dock identification was entitled to little, if any, weight. [86] I conclude, based on the acquittal decision as a whole, that the trial judge considered the totality of the evidence. Having foundthat the circumstances bearing on Cst. Willard’s ability to observe and remember meant that this evidence was of little probative value, heturned to the Crown’s submission that the court could still find that Mr.

Lachance was the person holding the gun based on thecircumstantial evidence. He did not suggest that he would consider the circumstantial evidence alone, without taking account of theidentification evidence. [87] Admittedly, the trial judge did review gaps and flaws in the circumstantial evidence without referring again to the in-courtidentification, or to all of the circumstantial evidence. However, nothing turns on his failure to cast the net more broadly in this portion ofhis judgment, as it does not purport to be a comprehensive review of the evidence.

Rather, it was focussed on those aspects of the evidencethat, despite the circumstantial evidence supporting the inference that Mr. Lachance was guilty of some or all of the offences with whichhe was charged, suggested that finding that he was the man on the deck was not the only reasonable inference. This constituted theapplication of the test specified in R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, which applies when the case depends oncircumstantial evidence.

Further, as the Supreme Court of Canada there confirmed, adopting the reasoning of the Alberta Court of Appealin R v Dipnarine, 2014 ABCA 328, 316 CCC (3d) 357, “[i]t is…fundamentally for the trier [of] fact to decide if any proposed alternativeway of looking at the case is reasonable enough to raise a doubt” (at para 56).

Here, that is exactly what the trial judge decided. [88] Further, having considered the in-court identification and having adverted to the circumstantial evidence, the trial judge finallysaid this: On the whole of the evidence, I find that the Crown has not proven beyond a reasonable doubt that he was in possession of a firearm and

pointing it at Constable Willard on the 8th of August 2020. [89] In light of all of this, I am not persuaded that the trial judge erred in the manner alleged by the Crown in dealing with theidentification evidence and the circumstantial evidence. The reasons do not disclose that he failed to consider the totality of the evidence,including that Mr. Lachance was the only man there when the premises were cleared, that a firearm was found, that he made a threat, andthat the house was under observation for all but a brief period. [90] Finally, it must be kept in mind that the trial judge believed Mr.

Lachance’s evidence that he did not have possession of afirearm on August 8 and did not point a firearm at Cst. Willard. This was a finding of fact that was not subject to appeal by the Crown.Given that the trial judge believed Mr. Lachance, he was obliged to acquit him of the firearms related charges: R v W.(D.), (SCC), [1991] 1 SCR 742. The Crown submits that the trial judge could not have concluded that, as he said, he had no reason not tobelieve Mr. Lachance if he had considered all of the evidence. I must respectfully disagree.

In substance, this argument asks this Court tosubstitute its own finding of fact on the issue of credibility for that of the trial judge or to find that the verdict was unreasonable. TheCrown has no right of appeal on those grounds. C. Did the trial judge err by refusing to accept Crown counsel’s unswornrepresentations as evidence in the hearsay voir dire? [91] The Crown submits that the trial judge refused to accept Crown counsel’s unsworn representations as evidence in the hearsayvoir dire because he erroneously held that he could only consider viva voce testimony.

It asserts that there are many cases which confirmthat counsel submissions may be considered when determining the admissibility of evidence or an application for witness accommodation.It notes, for example, that in R v Smith, (SCC), [1992] 2 SCR 915, the Supreme Court of Canada upheld the trial judge’sdecision to rely on Crown counsel’s unsworn factual submissions when deciding to order that children be permitted to testify behind ascreen.

Similarly, in R v Hoyles, 2018 NLCA 46 at para 11 [Hoyles], Hoegg J.A. made the following comment as to the nature of theevidence required on such application: [11] I would first observe that evidence is not always required to support an application under sections 486.1(2) or 486.2(2). Forinstance, the nature of the offence, a factor for consideration in both sections, is a matter of record.

Other factors, like the age of thewitness, whether the witness has mental or physical disabilities, the nature of the relationship between the witness and accused, may alsobe matters of record or patently obvious from observation. While a judge’s exercise of discretion must be properly exercised, and musthave some proper basis, it can be properly exercised on the basis of the record before him or her and submissions made, as GoodridgeC.J.N.F. stated at paragraph 42 of R. v.

Merdsoy (1994), (NL CA), 121 Nfld. & P.E.I.R. 181, 91 C.C.C. (3d) 517 (Nfld.C.A.): The exercise of discretion is generally not attended by extended arguments or evidence. An application is made and the reasons for it areexpressed; it may be opposed and the reasons for opposition are expressed. Knowledge of things arising out of the trial process whichmust be obvious to the trial judge may be presumed. This is not to say that formal evidence is never necessary, or that it is not a good idea.

Rather, it is to say that trial judges make properdiscretionary rulings day in and day out in the absence of formal evidence. In this case, the record disclosed the history of the case, the ageof the complainant, and the nature of the offences, all criteria for consideration. As well, both Crown and Defence Counsel madesubmissions with respect to the information available. [92] Hoyles was cited with approval in R v J.L.K., 2023 BCCA 87, which related to an appeal from an order pursuant to s. 714.1 ofthe Criminal Code permitting a witness to testify remotely at trial.

Justice Skolrood there agreed that “sworn evidence in the form of anaffidavit or viva voce testimony is not necessarily required to support an application” of that kind and that “[t]he central issue for the judgeis whether there is a proper and reliable basis on which to exercise [their] discretion, having regard to the objectives of the section, thefactors set out in the section, and any other relevant circumstances” (at paras 55–56). As he said: [57] In my view, counsel submissions can provide that basis.

As submitted by the Crown, such submissions are commonly relied uponby judges in a variety of criminal law proceedings, including applications for judicial interim relief and sentencing: S.L.C. at para. 17;Zakuti at paras. 29-51. [58] Further, given the discretionary nature of the order, it is for the trial judge to decide whether in fact there is a sufficient basis onwhich to grant the order.

If the judge is not satisfied on the basis of counsel submissions and/or the evidence existing in the record, then itis open to the judge to require additional evidence in the form of affidavits or viva voce testimony, including cross-examination.

As statedby Donegan J. in Zakuti at para. 46: “What is important is that the court’s exercise of discretion has a reliable and sufficient basis in orderfor it to be properly exercised.” [93] The Crown also notes that there are numerous cases where courts have relied on counsel’s submissions when considering thenecessity component of the principled exception to the hearsay rule.

It points, for example, to R v Moonias (2004), (ON CA), 191 CCC (3d) 341 (Ont CA), where the complainant in a sexual assault trial broke down while on the stand and, when the trialrecommenced approximately two months later, would not enter the courtroom to continue giving evidence. The prosecutor advised thecourt that the witness was terrified of the accused and would not return despite various efforts to accommodate her.

In its per curiamdecision, the Ontario Court of Appeal held that the trial judge had properly concluded that necessity existed based on various forms ofevidence, including the unchallenged assertions of Crown counsel: [10] The trial judge’s finding that the emotional condition of the complainant prevented her from continuing her testimony wassupported by the trial judge’s observations of the complainant when she testified on the first day of the trial, the testimony of a supportperson who attended court with the complainant, and the Crown’s unchallenged assertions that he had made his best efforts to get thecomplainant to come into the courtroom and testify, but that she was in no emotional state to do so.

It was open to the trial judge toconclude that the complainant was effectively unavailable as a witness and that the reasonable necessity requirement for the admission ofthe videotaped statement had been met.

[ 94 ] F. (W.J.) is the leading decision in relation to this issue. There, a child who gave viva voce testimony was effectively “frozen” on the stand and could not testify. The trial judge found that to establish necessity, the Crown must present evidence as to why the child failed to testify.

On appeal to the Supreme Court of Canada, McLachlin J. (as she then was) explained that necessity “should not be approached on the basis that the case must fit into a preordained category” and that the question is “whether, on the facts before the trial judge, direct evidence is not forthcoming with reasonable effort” (at para 36). She then confirmed that viva voce evidence is not always required, explaining as follows: [37] There is no absolute rule that evidence must be called on the issue of necessity.

Where it is apparent from the circumstances before the trial judge that the child cannot give useful evidence, the judge may find out-of-court statements are “necessary” in the context of the rule, absent evidence.

This may be the case where the child is very young. … … [39] We may thus conclude that where it is self-evident that a child’s evidence will not be effectively available, the judge may find necessity and, subject to reliability, admit the child’s out-of-court statements. [40] On the other hand, where it is not self-evident from the circumstances that direct evidence will be unavailable with reasonable efforts, the judge may require evidence of that fact.

This may be the case where the Crown, without calling the child as a witness, simply states that to call the child would be traumatic to the child. … [41] It is therefore error to assert that in all cases there must be extrinsic evidence to support the assertion that the out-of-court evidence is necessary under the Khan rule. It is for the trial judge and not the prosecutor to determi

[…]