



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Darnley, 2020 ONCA 179

DATE: 20200309

DOCKET: C62610

Feldman, Lauwers and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kara Darnley

Appellant

Philip Campbell, for the appellant

Susan L. Reid, for the respondent

Heard: November 28, 2019

On appeal from the conviction entered by Justice Susan E.
    Healey of the Superior Court of Justice, sitting with a jury, on April 13, 2016.

Paciocco J.A.:

OVERVIEW

[1]

The Crown charged Kara Darnley, an Ontario Provincial Police peace
    officer, with criminal offences relating to two events, what I will call the
    witness record incident and the drug investigation file incidents. The Crown
    theory is that, in both incidents, Cst. Darnley abused her position as a peace officer
    out of loyalty to her fiancé, Jody Vanier, whom the police suspected of involvement
    with illicit drug use.

[2]

Even before these events occurred, the police had concerns that through
    her relationship with her fiancé, Cst. Darnley was too close to drug users. Her
    superiors partnered her with Cst. Fischer who was investigating Cst. Darnley in
    an undercover capacity.

[3]

At her trial, Cst. Darnley argued that the Crown had failed to prove any
    of the charged offences. She was convicted of breach of trust in connection
    with both incidents. She was acquitted of obstruction of justice in connection
    with the witness record incident.
[1]


[4]

Cst. Darnley then sought to raise the entrapment defence against the
    drug investigation file incidents, based on the role played by Cst. Fischer. The
    trial judge rejected this defence.

[5]

Cst. Darnley appeals both convictions, alleging errors during the jury
    trial and in the disposition of the entrapment defence.

[6]

For reasons that follow, I would find that the trial judge committed jury
    direction errors relating to reasonable doubt, and that the jury rendered
    inconsistent verdicts relating to the witness record incident. I would also
    find that errors were made relating to the entrapment defence. I would
    therefore allow Cst. Darnleys appeal and set aside both convictions. I would substitute
    an acquittal for the breach of trust charge relating to the witness record
    incident and order a new trial on the breach of trust charge relating to the
    drug investigation file incidents.

MATERIAL FACTS AND LEGAL BACKGROUND

A.

THE
    OFFENCE OF BREACH OF TRUST

[7]

Section 122 of the
Criminal Code
, R.S.C., 1985, c. C-46 creates
    the offence of breach of trust. It provides:

Every official who, in connection with the duties of
    his office, commits fraud or a breach of trust is guilty of an indictable
    offence and liable to imprisonment for a term not exceeding five years, whether
    or not the fraud or breach of trust would be an offence if it were committed in
    relation to a private person.

[8]

The five elements of s. 122 were set out in
R. v. Boulanger
, 2006
    SCC 32, [2006] 2 S.C.R. 49, at para. 58, as follows:

1. The accused is an official;

2. The accused was acting in connection
    with the duties of his or her office;

3. The accused breached the standard of responsibility and
    conduct demanded of him or her by the nature of the office;

4. The conduct of the accused represented a serious and marked
    departure from the standards expected of an individual in the accuseds
    position of public trust; and

5. The accused acted with the intention to use his or her
    public office for a purpose other than the public good, for example, for a
    dishonest, partial, corrupt, or oppressive purpose.

B.

THE
    WITNESS RECORD INCIDENT

[9]

On December 20, 2010, Cst. Darnley, while off duty, attended her
    fiancés apartment, which he shared with his roommate, Mike Drozdoski. She, her
    fiancé, and Mr. Drozdoski socialized with Mark Jeffrey and his partner Christine
    Kuyvenhoven, the couple that resided in the next apartment. Later that evening,
    Ms. Kuyvenhoven called 9-1-1 about Mr. Jeffrey but was too intoxicated to
    speak. She handed the phone to Cst. Darnley who acknowledged when asked that
    she was a police officer. OPP officers attended the residence and Mr. Jeffrey
    was charged with domestic assault. The police also found 400 grams of marijuana
    in Mr. Jeffreys apartment.

[10]

Based upon concerns with Cst. Darnleys off-duty activities stemming
    from her relationship with her fiancé, including one incident where she
    allegedly transported her fiancé and his drug supplier to an alley to drop something
    off, the Ontario Provincial Police launched an investigation of Cst. Darnley.
    On March 23, 2012, Cst. Fischer was placed with Cst. Darnley. Cst. Fischer had
    been disciplined for illegal conduct (stunt driving) and presented herself to
    Cst. Darnley as a disgruntled, problem officer.

[11]

Two days later, on March 25, 2012, the eve of Mr. Jeffreys trial, Cst. Darnley
    accessed electronic police records and printed the witness statements that police
    had collected during the Jeffrey investigation. She solicited Cst. Fischers
    assistance when the printer jammed.

[12]

The following morning, Mr. Jeffrey pleaded guilty to the assault. No
    witnesses were called to testify. Cst. Darnley was nonetheless charged with
    breach of trust and obstruction of justice for her conduct relating to the
    witness records.

[13]

Specifically, the charges allege: (1) that Cst. Darnley committed the
    breach of trust by releasing confidential police information regarding
    statements given to members of the Huronia West OPP for the purposes of a criminal
    prosecution; and (2) that Cst. Darnley wilfully attempted to obstruct justice
    by printing witness statements in relation to a criminal court proceeding and
    disclosing those statements to witnesses of that proceeding.

[14]

The Crown offered alternative theories at the trial that: (1) Cst.
    Darnley tainted herself as a witness by accessing the statements; or (2) she
    tainted the evidence that her fiancé and Mr. Drozdoski would offer by sharing
    the statements of other witnesses with them. However, the charges against Cst.
    Darnley are particularized. They allege that her guilt arises from the release
    or disclosure of the statements, not her own use of them. Therefore, the first
    theory could not be accepted. The central issue at the trial, and the only
    factual issue in contest on this charge, was whether Cst. Darnley released or
    disclosed the statements to any of the witnesses.

[15]

The Crown presented no direct evidence that she had done so. It relied instead
    on the testimony of Cst. Fischer that Cst. Darnley admitted that she had
    printed the statements so that her fiancé and his roommate Mr. Drozdoski would
    know what other witnesses had said, and that her fiancé and Mr. Drozdoski looked
    at the statements.

[16]

Cst. Darnley did not testify in her own defence. She defended the
    allegation by urging that Cst. Fischer was not credible, and that the Crown had
    failed to prove that Cst. Darnley had released or disclosed the statements to
    witnesses.

[17]

Building on other evidence in the case, Cst. Darnleys trial counsel also
    raised the suggestion that Cst. Darnley may have printed the statements in the
    public interest, so that the witnesses could review their own statements before
    testifying. If there was a reasonable doubt about this, Cst. Darnley would be
    entitled to an acquittal, since, as indicated, the fifth necessary element of
    the offence of breach of trust is that the accused acted with the intention to
    use his or her public office for a purpose other than the public good:
Boulanger
,
    at para. 58.

[18]

Specifically, Cst. Darnleys trial counsel relied upon the testimony of Sgt.
    Lloyd, an officer involved in the investigation of the charges against Mr.
    Jeffrey. The officer testified that the police generally make sure that
    witnesses have a chance to review their own statements before testifying, but
    he had no recollection of preparing the witnesses personally, nor could he
    confirm that someone else did so in connection with Mr. Jeffreys trial. Cst.
    Darnley was not subpoenaed to testify at Mr. Jeffreys trial the way a civilian
    witness would be, but instead received an officer notice. She was directed by
    the Crown to attend as a police witness, and she did so in full police uniform.
    Moreover, Cst. Darnley had made no attempt to hide the fact that she was
    printing the witness statements, even asking Cst. Fischer, whom she had known
    at that point for only two days, to assist her with a paper jam when printing
    the documents.

[19]

The jury convicted Cst. Darnley of breach of trust but acquitted her of
    the obstruction of justice charge in connection with the witness record
    incident.

C.

THE DRUG
    INVESTIGATION FILE INCIDENTS

[20]

During the two and a half months following Mr. Jeffreys trial, Cst.
    Darnley and Cst. Fischer worked and socialized together extensively. On several
    occasions, Cst. Darnley expressed concern about her fiancés drug use and his
    friends, and on one occasion, Cst. Fischer witnessed Cst. Darnley using a
    police database to check on one of her fiancés friends. However, no clear
    evidence of criminality had been obtained. The police decided to conduct an
    integrity play, and then another due to a technical malfunction during the
    first.

(i)

The First Integrity Play

[21]

A fake investigation file was created and placed in a yellow folder entitled
    Confidential Drug Targets, Wasaga Beach. The folder was also labelled with the
    names of three of her fiancés friends. Reports and photographs were placed in
    the file, suggesting that surveillance was being conducted on the men.

[22]

On June 10, 2012, the file was left on the detachment photocopier. A concealed
    camera was trained on the area. That evening, when no one else was present,
    Cst. Fischer, while wearing a recording device, sent Cst. Darnley to the
    photocopier. Cst. Darnley discovered the file. She was alarmed, having recently
    parked her car at one of the target homes. In her conversations with Cst. Fischer,
    she expressed uncertainty about what to do and wondered whether she should say
    anything to her fiancé. Cst. Fischer offered to go with her if she decided to
    tell her fiancé. Cst. Darnley decided to photograph the file, and Cst. Fischer
    offered to be a lookout. With Cst. Fischers encouragement, Cst. Darnley
    checked the CPIC printouts in the yellow folder to determine when the
    investigation began, and Cst. Fischer reassured Cst. Darnley that the file
    would not have been planted intentionally. Cst. Fischer made comments that could
    be taken to be discouraging Cst. Darnley from approaching Sgt. Lloyd, the
    purported investigator of the surveillance file.

[23]

Later that evening, Cst. Darnley admitted that she had called her fiancé
    to warn him not to hang out with his friends anymore. When the shift ended, she
    invited Cst. Fischer to her home. Her fiancé was asleep and Cst. Fischer again
    assured Cst. Darnley she would be a second voice if she decided to talk to him.
    The next day, Cst. Darnley acknowledged to Cst. Fischer that she had talked to her
    fiancé and had showed him the photographs of the file. She said that she had
    asked him not to say anything to anyone about them.

(ii)

The Second Integrity Play

[24]

Since the camera that was meant to record Cst. Darnleys discovery of
    the yellow folder had malfunctioned, police decided to conduct a second integrity
    play. On June 18, 2012, a box marked with the names of her fiancés friends,
    and the title Lloyds Surveillance Box was placed on a filing cabinet in the
    criminal investigation office. Cst. Darnley discovered the box and Cst. Fischer
    served as a lookout so that Cst. Darnley could examine and photograph the
    contents of the box. Again Cst. Fischer made comments to allay Cst. Darnleys
    concerns that the box may have been planted.

[25]

The following evening, June 19, 2012, Cst. Darnley searched Sgt. Lloyds
    desk, but found nothing. Then Cst. Fischer accompanied Cst. Darnley home after
    Cst. Darnley decided to speak with her fiancé. Cst. Fischer taped the
    conversation. In that conversation, Cst. Darnleys fiancé declined Cst.
    Darnleys invitation to see the photographs, they discussed who could be
    providing information to the police, and Cst. Darnley warned him to stay away
    from the suspected men and commented that she was telling him about the
    investigation to protect me and you.

[26]

Cst. Darnley was arrested on July 4, 2012. Her phone was searched and
    the photos she took were secured, along with a text she had sent to Cst.
    Fischer confirming that she had advised her fiancé about the contents of the surveillance
    box.

(iii)

The Drug Investigation File Charges

[27]

As indicated, Cst. Darnley was charged with both the witness record
    incident and the drug investigation file incidents.

[28]

With respect to the breach of trust charge relating to the drug
    investigation file incidents, the parties agreed that the sole issue for the
    jury was why Cst. Darnley accessed and photographed the files and shared this
    confidential information with her fiancé. The Crown urged that her intention
    was to protect herself and her fiancé and that this was done in her self-interest.
    Cst. Darnley argued to the contrary that her surreptitiously recorded
    statements show that she accessed and shared the information with her fiancé in
    order to preserve the integrity of her position as a police officer by
    ensuring that her fiancé, her future husband, discontinued his association with
    the suspected drug users, drug dealers, something that was undermining her ability
    to maintain her proper role as a police officer.

[29]

After the jury convicted Cst. Darnley on this count, she moved that the
    charge be stayed. She said that the integrity plays exceeded the acceptable
    limits of police conduct by entrapping her. Entrapment can occur in two ways,
    either: (1) the authorities provide an opportunity to persons to commit an
    offence without reasonable suspicion or acting
mala fides
; or (2)
    having a reasonable suspicion or acting in the course of a
bona fide
inquiry, they go beyond providing an opportunity and induce the commission of
    an offence:
R. v. Mack
, [1988] 2 S.C.R. 903, at p. 959. Cst. Darnley
    argued both branches in the alternative. On May 17, 2016, the trial judge
    dismissed the motion.

ISSUES

[30]

Cst. Darnley raises the following issues on appeal:

A.

the trial judge
    erred by misdirecting the jury on the meaning of reasonable doubt;

B.

the trial judge
    erred by providing improper and conflicting jury instructions on the public
    good element of breach of trust and the Crown burden relating to motive;

C.

the jury verdict of
    guilty of breach of trust relating to the witness record incident is
    inconsistent with its verdict of acquittal of obstruction of justice relating
    to the same incident and is therefore unreasonable;

D.

the jury erred in
    finding breach of trust in connection with the drug investigation file
    incident, given that Cst. Darnley was not trusted and the information in the
    drug investigation file was not confidential;

E.

the trial judge
    misapplied the law of entrapment in denying her post-verdict application for a
    stay of proceedings relating to the drug investigation file incidents.
    Specifically, the trial judge erred by,

1.

improperly
    reasoning that peace officers must be held to elevated standards of moral
    restraint or fortitude; and

2.

misunderstanding
    the average person inquiry by asking whether any OPP officer faced with the two
    integrity scenarios would inevitably have been induced to commit the breach of
    trust.

ANALYSIS

A.

DID THE
    TRIAL JUDGE MISDIRECT THE JURY ON REASONABLE DOUBT?

[31]

These are the impugned passages from the trial judges reasonable
    doubt direction. The contentious words are underlined:

(1) A reasonable doubt is a real doubt that logically arises
    from the evidence or the lack of evidence. It is a doubt based on reason and
    common sense after considering all of the evidence as a whole.
It may be a doubt created by an inference or conclusion you
    have drawn from the facts as you find them, provided that the inference or
    conclusion is not a speculation or guess, but a much stronger conclusion
    arising from the proven facts and based on the evidence alone.

(2) If your doubt is about something you have imagined or made
    up, or if it is a far-fetched doubt, then it is not a reasonable doubt. If it
    is a doubt based on sympathy or prejudice, then it is not a reasonable doubt.
It must be a doubt about an essential element of the offences
    charged, and must arise from the evidence
. [Emphasis added.]

[32]

The Crown concedes that both of the underlined passages are in error.

[33]

First, a reasonable doubt need not arise from the evidence:
R. v.
    Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 28. It can arise
    from the absence of evidence, from what the Crown has failed to prove:
R.
    v. Lifchus
, [1997] 3 S.C.R. 230, at para. 36.

[34]

Moreover, an inference need not arise from proven facts, which is a
    standard that is never applicable to an accused:
R. v. Robert
(2000),
    143 C.C.C. (3d) 330, at para. 17 (Ont. C.A.). This is because a reference to
    proven facts suggests an obligation to establish those facts to a standard of
    proof, yet a reasonable doubt can arise from evidence that, while not proven to
    be true to any standard of proof, has not been rejected.

[35]

It is also incorrect to link a reasonable doubt to a conclusion drawn
    from the facts. An acquittal need not be based on a conclusion about innocence
    but can rest on an inability to conclude guilt.

[36]

It is also an error to suggest that an exculpatory inference must be a
    much stronger conclusion than a speculation or guess. That language imports
    the need for a strong inference, when an exculpatory inference relating to a
    required element of the offence need merely raise a reasonable doubt:
Villaroman
,
    at para. 20.

[37]

The Crown contends that, in these passages, the trial judge was
    attempting to prevent the jury from accepting the speculative claims made by
    the defence about what Cst. Darnley was thinking. I need not resolve whether
    Cst. Darnleys arguments were speculative because even if the trial judge was
    attempting to discourage speculation by the jury, she stated the law
    incorrectly.

[38]

There is no force in the Crowns contention that these errors lose their
    significance when the jury charge is read as a whole. Errors relating to the
    burden and standard of proof may not be reversible if the charge, when read as
    a whole, makes it clear that the jury
could not have been
    under any misapprehension
as to the correct burden and standard of proof
    to apply (emphasis added):
R. v. W.(D.)
, [1991] 1 S.C.R. 742, at p.
    758. This is not a case for inferring that these errors did not confuse or
    mislead the jury.

[39]

First, the trial judge provided a precise and misleading direction about
    drawing exculpatory inferences, and she linked reasonable doubt to evidence-based
    conclusions. These errors go to the very concept of a reasonable doubt. They
    cannot be corrected by admonitions to give the accused the benefit of the
    doubt.

[40]

Moreover, none of the correct directions relied upon by the Crown as
    ameliorative address how exculpatory inferences are to be evaluated, a key
    feature of the misdirection

[41]

Nor can the trial judges misdirection that a reasonable doubt must arise
    from the evidence be overcome. The first impugned paragraph opens with the
    correct direction to the jury that a reasonable doubt can arise from the lack
    of evidence and the reasonable doubt direction ends with the same point. But
    this does not remove the risk of misapprehension that arises from an
    unequivocal direction that a doubt must arise from the evidence. There is no
    way to reconcile those comments, and no basis to conclude that the jury would
    follow one direction and not the other.

[42]

Cst. Darnleys appeal counsel argues correctly that the errors made by
    the trial judge undermined both the presumption of innocence and the burden of
    proof. They effectively reverse the burden of proof and lower the standard of
    proof required of the Crown. Such errors are magnified in this case, where Cst.
    Darnley defended herself based on what the Crown had failed to prove. Given the
    seriousness of these errors and the absence of any reasonable tactical basis
    for the defence accepting this misdirection, the failure of trial counsel to
    object to the charge is of no moment.

[43]

I would allow this ground of appeal from both convictions.

B.

DID THE
    TRIAL JUDGE PROVIDE CONFLICTING JURY INSTRUCTIONS ON THE PUBLIC GOOD ELEMENT
    OF BREACH OF TRUST AND THE CROWN BURDEN RELATING TO MOTIVE?

[44]

It is uncommon for criminal offences to require proof of motive.
    Typically, the Crown need not prove why someone has chosen to engage in
    criminal activity, and it is standard to direct juries to this effect. Accordingly,
    the trial judge directed the jury that [m]otive  is not one of the essential
    elements that Crown counsel must prove. And again, [a] person may be found
    guilty of an offence, whatever his motive, or even without a motive.

[45]

However, in a breach of trust charge, it is necessary to inquire into
    the purpose for the accused persons breach of the standards of
    responsibility and conduct of their office; for the offence to be complete that
    purpose must be other than the public good.

[46]

Historically, courts have used the term motive when describing this
    purpose element:
R. v. Williams
(1762), 97 E.R. 851 (K.B.);
R. v.
    Borron
(1820), 106 E.R. 721 (K.B.). In truth, this is an imprecise use of
    the term motive. As the trial judge explained, motive describes why the
    accused acted as they did. Motive is what induces a person to act:
The
    Concise Oxford Dictionary of Current English,
7th ed. The same dictionary
    defines purpose as the object to be attained, thing intended, and so,
    purpose may not be the same as motive. For example, a persons purpose in using
    corporate resources may be to complete work on their property, but their motive
    may be financial: see
R. v. Bradt
, 2010 CMAC 2, 414 N.R. 219.

[47]

But in the factual allegations against Cst. Darnley relating to the drug
    investigation file incidents, motive and purpose are not easily
    distinguishable. The Crown theory was that Cst. Darnleys improper purpose was
    to protect herself and her fiancé, and both the Crown and the trial judge used
    the term motive to describe that purpose. Accordingly, Cst. Darnley argues
    that the trial judge erred in giving the standard motive direction in this
    case, since it is entirely possible that jurors would have been misled by it,
    thereby disregarding a required element of the breach of trust offence. Specifically,
    the jury may have relied on the motive direction to ignore the requirement that
    the Crown prove beyond a reasonable doubt that the appellants purpose was other
    than the public good.

[48]

I would not give effect to this ground of appeal. The motive direction
    was required with respect to the charge of obstruction of justice, and arguably
    with respect to the breach of trust charge relating to the witness records
    incident; if the jury was satisfied that Cst. Darnley wanted witnesses to know
    what other witnesses said in their police statements so that they could testify
    accordingly (her purpose), in order to convict, the jury would not need to know
    why she wanted this (her motive).

[49]

Certainly, it would have been prudent for the trial judge to clarify the
    relationship between motive and purpose with respect to the breach of trust
    charge relating to the drug investigation file incidents. However, approaching
    the matter functionally, there is no realistic risk that the jury would have
    used the generic motive direction to disregard the repeated and pointed
    emphasis given in the course of the trial and in the charge to the sole issue
    between the Crown and the defence, namely why Cst. Darnley accessed, copied,
    and shared the drug investigation files with her fiancé.

C.

ARE THE
    JURY VERDICTS RELATING TO THE WITNESS RECORD INCIDENT INCONSISTENT?

[50]

As indicated, Cst. Darnley faced two charges relating to the witness record
    incident:

COUNT 1. KARA DARNLEY stands charged that on or about the 25th
    day of March, in the year 2012, at the Town of Wasaga Beach, in the Central
    East Region, she did, being an official, to wit: a sworn police officer with
    the Ontario Provincial Police, commit a breach of trust in connection with the
    duties of her office, by releasing confidential police information regarding
    statements given to members of the Huronia West OPP for the purposes of a
    criminal prosecution, contrary to the
Criminal Code
of Canada.

COUNT 2. KARA DARNLEY stands charged on or between the 25th day
    of March, in the year 2012, and the 26th day of March 2012, both dates
    inclusive, at the Town of Collingwood, in the Central East Region, she did wilfully
    attempt to obstruct the course of justice in a judicial proceeding, by printing
    witness statements in relation to a criminal court proceeding and disclosing
    those statements to witnesses of that proceeding, contrary to the
Criminal
    Code
of Canada.

[51]

The jury convicted her of Count 1 but acquitted her of Count 2. Cst.
    Darnley argues that these verdicts are genuinely inconsistent, and both could
    not reasonably have been returned, rendering the conviction unreasonable:
R.
    v. R.V.
, 2019 ONCA 664, 147 O.R. (3d) 657, at para. 77, leave to appeal
    granted, [2019] S.C.C.A. No. 345.

[52]

Cst. Darnleys onus of establishing inconsistent verdicts is difficult
    to meet. The verdicts will not be inconsistent if, approaching the matter
    realistically and not theoretically, there is any rational or logical basis for
    the verdicts rendered:
R. v. McShannock
(1980), 55 C.C.C. (2d) 53
    (Ont. C.A.), at pp. 55-56;
R. v. Pittiman
, 2006 SCC 9, [2006] 1 S.C.R.
    381, at para. 7. In determining this, the appeal panel must consider the evidence,
    the positions of counsel, the legal ingredients of the offences, and the trial
    judges instructions to the jury
[2]
:
R.V.
, at para. 85.

[53]

Cst. Darnley contends that, examined in this way, there is no rational
    or logical basis for the inconsistent witness record incident verdicts. The critical
    components of Cst. Darnleys argument can fairly be expressed this way:

(1)

If the jury was satisfied
    only as to the uncontested fact that Cst. Darnley accessed the witness records,
    she could not be convicted of either count. This is because the counts
    particularize, respectively: the
release
of
    confidential police information regarding statements given to members of the
    Huronia West OPP (the breach of trust count); and printing and
disclosing
those statements to witnesses to that
    proceeding (the obstruction of justice count). Both charges require more than
    mere access;

(2)

The acquittal on the
    obstruction of justice charge could be explained if the jury was left in
    reasonable doubt about whether Cst. Darnleys purpose was to provide witnesses
    with their own statements, since providing witnesses with their own statements
    does not obstruct justice. But such a finding cannot explain the breach of
    trust conviction that was entered, because this offence requires an intention
    to use public office for a purpose other than the public good. Even if Cst.
    Darnley was not authorized to assist other witnesses in witness preparation,
    doing so is not a purpose other than the public good and it would not be a
    serious and marked departure from the standards expected of a police officer
    subpoenaed to court as a police witness;

(3)

On the face of the charges, both
    verdicts would be appropriate if a finding was made that Cst. Darnley shared
    the contents of the witness statements, but not the witness statements
    themselves. This is because the alleged breach of trust charge specifically contemplates
    releasing confidential police
information
regarding statements (emphasis added) but the obstruction of justice charge is
    particularized to require disclosure of the
printed
    statements
themselves. However, this theory cannot provide a rational
    basis for the inconsistent verdicts. The only evidence that Cst. Darnley shared
    anything was Cst. Fischers testimony that Cst. Darnley admitted to showing the
    statements to witnesses. There is simply no evidentiary foundation for a
    finding that she shared the confidential police information but not the printed
    statements themselves; and

(4)

If the jury was convinced
    beyond a reasonable doubt that Cst. Darnley did share the printed statements of
    one or more witnesses with one or more of the other witnesses, the only proper
    outcome would be a conviction on both counts. Witness tainting is so obviously
    wrong that, manifestly, it is not in the public interest, supporting a
    conviction for the breach of trust charge. Similarly, by its nature, witness
    tainting subverts the evidence about to be presented to a court and can only be
    undertaken with intent to obstruct justice, supporting a conviction of the obstruction
    of justice charge.

[54]

I agree with Cst. Darnley. Given the charges, the verdicts cannot
    logically or rationally be explained based on any of the holdings that could
    arise on the evidence.

[55]

The Crowns effort to undermine this ground of appeal is defeated by the
    arguments above. Point (1) rebuts the theory that the jury could have convicted
    Cst. Darnley of breach of trust for merely accessing witness records. Point (2)
    rebuts the theory that the obstruction of justice acquittal must have been
    based on a reasonable doubt about whether her intention in accessing and
    sharing the statements was to assist in witness preparation. As explained, this
    theory cannot account for the inconsistent verdicts. Point (3) rebuts the Crowns
    attempt to rely on the difference in wording between the charges.

[56]

I would allow this ground of appeal, relating to Count 1 for breach of
    trust in connection with the witness record incident.

D.

DID THE
    JURY ERR IN FINDING A BREACH OF TRUST THAT DID NOT EXIST, RELATING TO
    INFORMATION THAT WAS NOT CONFIDENTIAL?

[57]

Cst. Darnley argues that the integrity plays were conducted because she
    was not trusted. Without trust, it is improper for the jury to have convicted
    her of breach of trust. In addition, she argues that since she accessed only a
    mock police file, no confidentiality was breached.

[58]

I disagree. Proof of actual trust of the accused is not an element of
    the offence of breach of trust. As the elements of the offence make clear, the
    trust that is breached arises from the office held and the duties and
    responsibilities bestowed, not from a subjective belief that the accused is
    likely to honour the trust that the officials office requires.

[59]

I need not determine whether misuse by an official of mock information
    can support a breach of trust conviction because the files accessed by Cst.
    Darnley included actual police records, albeit assembled in a misleading way to
    pique Cst. Darnleys interest.

E.

DID
    THE TRIAL JUDGE MISAPPLY THE LAW OF ENTRAPMENT RELATING TO THE DRUG
    INVESTIGATION FILE INCIDENTS?

[60]

Cst. Darnley argues that the trial judge erred in law in identifying the
    legal standards to be applied in determining whether entrapment occurred, specifically,
    whether the police went beyond providing her with an opportunity to commit an
    offence by inducing the commission of an offence. Cst. Darnley argues that the
    trial judge: (a) improperly reasoned that peace officers must be held to
    elevated standards of moral restraint or fortitude; and (b) misunderstood the average
    person inquiry by asking whether any OPP officer faced with the two integrity
    scenarios would
inevitably
have been induced to
    commit the breach of trust.

[61]

I would find that both errors occurred. They are contained in the
    ultimate paragraph of the trial judges analysis:

The question is whether the average person should be ascribed
    the same strengths and weaknesses as the particular accused, in this case a
    police officer. I think that this must be so, as the test suggests that we are
    to consider the scenario as viewed through the eyes of someone in the
    position of the accused. The hypothetical average citizen may not, for
    example, understand all of the repercussions of the release of confidential
    police information and may not be fully apprised of an OPP officers duties to
    uphold his or her sworn oath of secrecy and oath of office. As a result, he or
    she may find it understandable that Darnley could be easily lured to reveal
    confidential information to her fiancé.
But another
    officer, in the same position as Darnley, is not likely, in my view, to come to
    the conclusion that any OPP officer faced with the two integrity scenarios
    would have inevitably been induced to commit a breach of trust given his or her
    knowledge of their obligations
. [Emphasis added.]
[3]

[62]

It is convenient to begin with the second error identified by Cst.
    Darnley, namely, the trial judges misunderstanding of the average person
    inquiry. This is a key inquiry in determining whether the police went beyond
    providing an opportunity to commit an offence and induced the commission of an
    offence. It involves asking whether an average person, with both strengths and
    weaknesses, in the position of the accused would be induced into the commission
    of a crime:
Mack
, at pp. 959, 966. Based on this inquiry, if the
    average person, with strengths and weaknesses, in the position of the accused might
    also have committed the offence, this inquiry supports a finding of
    entrapment:
Mack
, at p. 979. This is not the standard the trial judge
    applied. She asked instead whether an OPP officer faced with the two integrity
    scenarios
would have inevitably been induced to commit a
    breach of trust
given his or her knowledge of their obligation
    (emphasis added). This is a more exacting test than should have been applied.

[63]

There are two problems with this statement. First, in
Mack
, the
    Supreme Court of Canada did not require a standard of inevitability. Lamer
    C.J., at pp. 959-960, explained how to determine whether the police have gone
    beyond providing an opportunity and inducing the commission of an offence:

[T]o determine whether the police conduct gives rise to this
    concern,
it is useful to consider whether the conduct of
    the police would have induced the average person in the position of the accused
     I believe such a test is useful not only as an analytical mechanism. [It]
    may be inevitable that, when apprised of the factual context of an entrapment
    case, members of the community will put themselves in the position of the
    accused;
if a common response would be that anyone could have been
    induced by such conduct, this is a valuable sign that the police have exceeded
    the bounds of propriety. [Emphasis added.]

[64]

Put otherwise, it is a helpful analytical exercise to consider whether the
    commission of an offence would be inevitable or even a common response:
Mack
,
    at p. 960. If so, this is a valuable sign on its own that the police have
    exceeded the bounds of propriety in the inducement used. This does not mean,
    however, that the inevitability standard is the threshold required before the
    average person factor supports a finding of entrapment. The balance of
Mack
makes this clear.

[65]

The second problem is that, in her inquiry, the trial judge applied an
    improper conception of the relevant strengths of the average person by
    effectively concluding that a police officer must be taken to have elevated standards
    of moral restraint and fortitude. The trial Crown invited this reasoning by
    submitting that Cst. Darnleys status as a police officer really changes the
    analysis. He continued:

Because if its the average police officer whos sworn an oath
    of secrecy, has sworn an oath of office, is under a code of conduct, that
    changes it. And if thats the analysis in my respectful submission its over
    and done with at that point. The average police officer would not be touching
    or doing this type of conduct at all, but its an interesting issue.

[66]

What the Crown was clearly suggesting was that because of the oaths an
    officer makes and the code of police conduct, the moral standards and the
    standards of resistance to temptation expected of police officers in entrapment
    cases are elevated. Indeed, the Crown theory that average police officers would
    abide by their oaths and resist inducements would elevate the standard to the
    point where police officers could never successfully invoke an entrapment
    defence.

[67]

The trial judge accepted this invitation by relying expressly on the
    oath of office and then finding that although a hypothetical average citizen
    may find it understandable that Darnley could be easily lured to reveal
    confidential information to her fiancé, an officer would not have been induced
    to commit a breach of trust given his or her knowledge of their obligations.

[68]

Although it is correct to account for the status of the accused as a
    police officer in establishing the factual context of the event, it is an error
    to elevate the standard of resistance expected of an accused police officer.

[69]

As indicated, the relevant inquiry examines whether an average person,
    with both strengths and weaknesses, in the position of the accused would be
    induced into the commission of the crime. Naturally, to give context to the
    inquiry, the hypothetical average person must be contemplated to be a police
    officer engaged in the relevant policing activity. In the criminal negligence
    context,
R. v. Porto
, 2016 ONSC 7353, 3 M.V.R. (7th) 334, affd 2018
    ONCA 291, 23 M.V.R. (7th) 1, illustrates that a police officer engaged in the
    course of his or her duties in executing a high-speed response to an emergency
    has created an elevated risk of danger that heightens the care required.
    Similarly, in the criminal negligence context, an officer trained in the use of
    firearms may be expected to exercise that training in dangerous circumstances:
R.
    v. Gosset
, [1993] 3 S.C.R. 76. In this sense, it is possible to speak of
    elevated standards for police officers. This was done in
Gosset
, at
    para. 39, as well as in both the lower court and appeal decisions in
Porto
:
    see 2016 ONSC 7353, at paras. 67, 75; 2018 ONCA 291, at para. 6. For this
    reason, the trial judge was correct in the entrapment context in considering
    Cst. Darnleys knowledge of the repercussions of releasing confidential police
    information, and that Cst. Darnley encountered the information in police files
    while on duty at the police detachment.

[70]

However, it is improper when applying the average person test to ascribe
    elevated standards of moral restraint or fortitude where a police officer is
    charged.

[71]

First, the underlying factual assumption required to do so is
    controversial. There was no basis on the trial record, nor can it be judicially
    noticed, that officers attain higher standards of moral integrity and
    resistance to temptation than average persons, that they are less susceptible
    to the emotions of compassion, sympathy, and friendship, or more immune from
    mental illness or substance addiction  factors that
Mack
calls into
    consideration where relevant: at p. 966.

[72]

More importantly, ascribing moral superiority and a heightened
    resistance to criminal inducement to police officers subverts the average
    person standard. In this case, the trial judge recognized that an average
    person could be easily lured to reveal confidential information to her fiancé.
    Yet, she went on to consider how a police officer would have responded and
    denied the defence, primarily for this reason.

[73]

In sum, had the trial judge confined herself to the factual
    circumstances of a police officer trained in handling confidential police
    information and the implications of its release, she would have been proceeding
    appropriately. By holding Cst. Darnley to higher moral standards and standards
    of resistance to emotional pressure, she erred.

[74]

The Crown asked that if we find the trial judge to have erred in the
    entrapment analysis we should go on, as in
Mack
, and determine the
    issue rather than send it back for a new trial. Since this charge must go back
    to trial because of the reasonable doubt error in any event, I would decline to
    do so.

[75]

However, given the possibility of a new trial, I will comment on the
    Crowns submission that even if entrapment is ultimately established, this
    would not be one of those clearest of cases where a stay of proceedings is
    warranted. In fact, it would be an error of law to withhold a stay based on the
    clearest of cases test where entrapment has been found.

[76]

The defence of entrapment can only be established in the clearest of
    cases:
Mack
, at p. 976. Because there might not have been an offence
    to prosecute without the entrapment, the conviction for that crime is
    inappropriate. For this reason, Lamer C.J. said unequivocally, for the court in
Mack
, at p. 967, the proper remedy is a stay of proceedings. The trial
    judge was correct in recognizing this.

CONCLUSION

[77]

I would allow the appeal from the conviction on Count 1 of the
    indictment, the breach of trust conviction relating to the witness record
    incident and quash the conviction. I would do so because of the reasonable
    doubt error, and the inconsistent verdict error.

[78]

I would not order a retrial on this charge. As explained, given the
    specific allegations made, there is no logical or rational basis for justifying
    different outcomes between this charge (Count 1) and the obstruction of justice
    charge (Count 2). The obstruction of justice acquittal was not appealed and
    remains. In the circumstances, it would be unfair to permit the Crown to seek a
    conviction in a retrial of Count 1 for the same allegation for which Cst.
    Darnley stands acquitted. Ordering a new trial would invite a new jury to
    return a verdict inconsistent with Cst. Darnleys acquittal:
R.V.
, at
    para. 140. I would therefore substitute a verdict of acquittal on this charge.

[79]

I would also allow the appeal from the conviction on Count 2, the breach
    of trust charge related to the drug investigation file incidents, based on the reasonable
    doubt error and the entrapment error. I would quash the conviction and order a
    new trial on this charge.

Released: K.F. March 9, 2020

David M. Paciocco J.A.

I agree. K. Feldman J.A.

I agree. P. Lauwers J.A.





[1]
Cst. Darnley was also charged with an additional, redundant count of breach of
    trust in connection with the drug investigation file incidents, but that charge
    was withdrawn after the evidence concluded.



[2]
To be clear, a misdirection cannot be relied upon to explain inconsistent
    decisions:
R. v. R.V.
, 2019 ONCA 664, 147 O.R. (3d) 657.



[3]
Since it is necessary to quote this passage in order to identify the appealed
    errors, it should be pointed out that, in asking what another OPP officer would
    understand or think, the trial judge applied an unconventional perspective that
    should not be replicated. Objective inquiries are not typically conducted by
    imbuing the objective actor with appropriate characteristics and circumstances
    and then asking what such a person would understand or think of the impugned
    conduct of the accused. Instead, they are conducted by identifying the relevant
    characteristics and circumstances of the objective actor and then asking what
    that hypothetical person would have done in all the circumstances:
R. v.
    Creighton
, [1993] 3 S.C.R 3. The trial judge did return to this more
    conventional measure in the last passage of her decision.


