



WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)  at the first reasonable opportunity, inform any
    witness under the age of eighteen years and the complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, make the order.

(3)
In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)
An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15,
    c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of information
    that could identify a victim, witness or justice system participant whose
    identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Batisse, 2015 ONCA 322

DATE: 20150507

DOCKET: C58480

Simmons, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

William Batisse

Respondent

Lisa Joyal, for the appellant

David Bennett, for the respondent

Heard: April 8, 2015

On appeal from the acquittals entered by Justice James A.
    S. Wilcox of the Superior Court of Justice on February 10, 2014.

By the
    Court:

[1]

The Crown appeals from the respondent's acquittals for
    several sexual offences alleged to have been committed against the respondents
    niece between 1989 and 1994.


[2]

At the conclusion of the oral appeal hearing, we ordered that the Crown
    appeal be allowed, that the acquittals be set aside, and that a new trial,
    including a new
voir dire
, be held. These are our reasons for that
    order.

Introduction

[3]

In pre-trial rulings, the trial judge found that an inculpatory
    statement made by the respondent to the police was inadmissible as evidence at
    trial. The trial judge concluded that, in taking the statement, the police
    breached the respondents ss. 10(a) and 10(b)
Charter
rights and his
    s. 7
Charter

right to silence. Relying on his s. 7
Charter
ruling,
    the trial judge also found the statement involuntary. Because the statement was
    involuntary, it was unnecessary for the trial judge to conduct a s. 24(2)
Charter
analysis.

[4]

Both the complainant and the respondent testified at trial. Although the
    trial judge said he had no reason to doubt the complainants evidence, the
    respondents evidence left him with a reasonable doubt. He accordingly
    acquitted the respondent on all charges.

[5]

On appeal, the Crown challenges a preliminary evidentiary ruling made by
    the trial judge on the pre-trial motions, as well as the trial judges ss. 7,
    and 10(b)
Charter
rulings and his finding that the respondents
    statement to the police was involuntary. For reasons that we will explain, we
    accept the Crowns submission that the trial judge erred in law in his
    preliminary evidentiary ruling and in his ruling concerning the admissibility
    of the respondents inculpatory statement.

The trial judges preliminary evidentiary ruling

[6]

The respondent initially pleaded guilty to one of the charges but then applied successfully to have his guilty plea struck. During pre-trial motions at his ensuing trial, the respondent asked that a pre-sentence report prepared following his guilty plea be admitted to prove the truth of the contents of certain statements and documents referred to in the pre-sentence report concerning his developmental deficits.

[7]

The statements and documents in the pre-sentence report
    on which the respondent sought to rely included a statement by the respondents
    mother that the respondent was assessed and labelled as mentally retarded
    during his school years. They also included documents located in an historical
    file indicating the following: testing revealed that the respondents
    intellectual functioning was in the borderline normal range; doctors with whom
    the respondent had had consultations referred to him as a retarded boy; and
    other reports referred to the respondents developmental delay.

[8]

The trial judge ruled the pre-sentence report
    admissible to prove the truth of the content of these statements and documents on
    three bases
:

i)

the common law public documents exception;

ii)

the principled approach to the hearsay rule (which the trial judge referred
    to as the
Khan
exception); and

iii)

the trial judges residual discretion to prevent unfairness to the
    accused that would result in a miscarriage of justice.

[9]

We accept the Crowns submission that the trial judge erred in law in
    admitting the pre-sentence report to prove the truth of the contents of the
    above noted statements and documents.

[10]

In
    admitting the pre-sentence report based on the common law public documents
    exception and the
Khan
exception, the trial judge relied in part on
    his understanding that the Crown had conceded the reliability of the various
    statements and reports. On appeal, it is not disputed that no such concession
    was made. The trial judge did not conduct his own reliability analysis. His failure
    to do so is an error in law that negates the first two bases for his admissibility
    ruling.

[11]

In
    any event, we also conclude that the trial judges reliance on the common law
    public documents exception to the hearsay rule is misplaced. A pre-sentence report
    is prepared on the basis that it is relevant to issues surrounding sentencing
following

a finding of guilt, and it is not subject to the same evidentiary
    strictures as are in place at trial. Witness statements and medical reports recorded
    or referred to in a pre-sentence report are not rendered admissible for the
    truth of their contents at trial by virtue of their inclusion in that report.

[12]

This
    is especially the case where double hearsay is at issue. The trial judges
    reliance on the public documents exception to ground the admissibility of the
    respondents mothers hearsay statements about the respondents intellectual
    abilities and related documents is an error in law.

[13]

Finally,
    the trial judges conclusion that the admission of this evidence was necessary
    lacked any evidentiary foundation and was also an error in law. Because the
    respondent failed to demonstrate any basis for concluding that the admission of
    the evidence was necessary, the trial judge erred in principle in relying on
    his residual discretion to admit the evidence.

The trial judge ruling concerning
    the admissibility of the respondents statement

[14]

We
    also accept the Crowns submission that the trial judge erred in law in his s.
    7
Charter
analysis concerning whether the police breached the respondents
    right to silence based on persistent questioning by the police during the
    course of a videotaped statement in which the respondent acknowledged two of
    the alleged sexual acts.

[15]

The
    respondent attended the police station and gave the videotaped statement in
    response to a request from an officer who told the respondent he was
    investigating a sexual assault allegation in which the respondent was a
    possible suspect. At the outset of the interview, the officer cautioned the
    respondent to disregard any threats or promises made by other officers to
    induce him to speak and told him, Its up to you if you want to talk, okay? The
    officer also informed the respondent that he had a right to contact a lawyer
    and facilitated contact with duty counsel through the 1-800 number at the
    respondents request.

[16]

During
    the course of police questioning, the appellant made a variety of statements
    concerning his willingness to speak. For example:

·

when asked if he was curious about the allegations, he said no
    but also indicated he would not mind talking about it another day;

·

after discussing some recollections about interactions with the
    complainant and being encouraged by the officer to move forward and deal with
    it now, he indicated he wanted to talk about what happened, but not right now;

·

after being told by the officer that speaking would help him move
    past his mistakes and grow as a person, he indicated it had been eating [him]
    up inside, and he wanted to talk about it.

[17]

The
    substance of the trial judges s. 7
Charter
analysis is contained at
    paras. 46 and 47 of his ruling on the
voir dire
:

The right to silence arises at the investigative stage. The
    police are not necessarily required to refrain from questioning a detainee who
    states that he does not wish to talk. However, under both common law and
Charter
rules, police persistence in continuing an interview, despite repeated
    assertions by the detainee that he wishes to remain silent, may well raise a
    strong argument that the subsequently obtained statement was not the product of
    a free will to speak to authorities, and it is not voluntary. The mere
    presence of a doubt as to the exercise of the detainees free will in making a
    statement will suffice to ground a remedy. [Citations omitted.]

In the circumstances of this case, I find that the accused was
    effectively denied his right to silence in breach of s. 7 of the
Charter
.

[18]

For
    persistent police questioning to constitute a breach of a detainees right to
    silence, it must have the consequence of depriving the detainee of the right to
    choose whether or not to speak to the police. This is made clear in

R. v.
    Singh
, 2007 SCC 48, [2007] 3 S.C.R. 405. In
Singh
, at para.
    46, the Supreme Court articulated this requirement in a quotation from
R.
    v. Hebert
, [1990] 2 S.C.R. 151:

there is nothing in the rule to prohibit the police from
    questioning the accused in the absence of counsel after the accused has
    retained counsel. Presumably, counsel will inform the accused of the right to
    remain silent. If the police are not posing as undercover officers and the
    accused chooses to volunteer information, there will be no violation of the
Charter
.
Police persuasion, short of denying the suspect the right to choose or depriving
    him of an operating mind, does not breach the right to silence
. [Emphasis
    added].

Further, at para. 53 of
Singh
, the Court
    stated: The ultimate question is whether the accused exercised free will by
    choosing to make a statement.

[19]

In our view, the trial judge erred
    in law by failing to accurately set out and apply the test for assessing
    whether persistent police questioning will result in a breach of a detainees
    s. 7
Charter
rights. The trial
    judge accurately noted that
Singh

states at para. 47: [P]olice
    persistence in continuing an interview, despite repeated assertions by the
    detainee that he wishes to remain silent, may well raise a strong argument that
    any subsequently obtained statement was not the product of a free will. However,
    as noted above, in both
Singh
and
Hebert
,
the Supreme Court also emphasized that police are
    entitled to use legitimate means of persuasion and that police persuasion,
    short of depriving a detainee of the ability to choose whether to speak, does
    not breach the right to silence.

[20]

In his reasons, the trial judge
    did not engage in any analysis of whether the respondents statements during
    the interview amounted to repeated assertions  that he wishe[d] to remain
    silent. In our view, by referring to the statement at para. 47 of
Singh
without also referring to the additional statements
    in both
Singh
and
Hebert
concerning police use of legitimate means of
    persuasion, the trial judge failed to advert to and apply the proper test
    concerning whether the respondents s. 7
Charter
rights had been breached.

[21]

As
    the trial judge's s. 7 ruling formed the basis of his finding that the respondent's statement was involuntary, the error in his s. 7 analysis taints his conclusion on involuntariness.

[22]

The
    respondent concedes that the trial judge erred in finding a s. 10(b)
Charter
breach. He also acknowledges that the s. 10(a)
Charter
breach
    found by the trial judge would not warrant the exclusion of the appellants
    statement to the police under s. 24(2) of the
Charter
. We agree with
    these concessions.

[23]

We
    are satisfied that absent the trial judges legal errors, the result in this
    matter would not necessarily have been the same.

[24]

In
    the result, we allow the Crown appeals, set aside the respondents acquittals,
    and order a new trial, including a new
voir dire
.

Released:

MT                                                  Janet
    Simmons J.A.

MAY -7 2015                                    M.
    Tulloch J.A.

Grant
    Huscroft J.A.



