Stories quickly emerged in every major and minor media outlet, criticizing the Bill for its elimination of preliminary inquiries, reversal of the onus provisions in certain bail hearings, and removal of peremptory challenges in jury selection. Unfortunately, the news media’s focus on these three significant (and by no means unimportant) changes diverted attention away from some of the much more insidious aspects of Bill C-75.
Late in the evening that day, I sat down to take a stab at understanding this omnibus monstrosity. I penned a, perhaps sarcastic, 2400 word piece criticizing the major changes and some more minor ones. But even in 2400 words I could not break down the issues well enough.
So I’m going now to attempt to explain why, in my opinion, the changes in relation to affidavit evidence from police in criminal cases is one of the most deserving of attention and deserving of criticism.
Look no further than cases like Spencer v. British Columbia (Superintendent of Motor Vehicles) to see how fact-finders tend to just accept what police say as true. In that case, the adjudicator — a quasi-judicial officer with a duty of impartiality as between the police and the driver — preferred the evidence of the officer:
You provided a further submission on November 10, 2010, wherein you state: “At no time did I simply state ‘No’ to her request to provide a sample’.” This contradicts the observation by Cst. Steiger recorded in the RTS and quoted above. Therefore I must consider credibility, and I find that the RTS completed on the day of the incident to be more credible than your statement made at a later time after you have been able to consider the evidence presented against you. The complaint you provided on November 4 when you applied for this review does not contain the denial that you had stated ‘No’; you likewise did not provide any admission or denial of consumption. There is no reason for Cst. Steiger to provide inaccurate evidence on this point; whereas you have a vested interest in the outcome of this review.
And although that case was decided in 2011, the presumption in favour of believing that the police would not lie continues to permeate these cases. In a decision called Sayami v. British Columbia (Superintendent of Motor Vehicles), the adjudicator preferred the evidence of the police officer based on her assumption that he was properly trained, followed his training, and would not have wanted to jeopardize his investigation by failing to make a valid demand. The BC Supreme Court overturned the adjudicator’s decision for applying an improper baseline of reliability.
But the fact that the original decision was overturned does not bode confidence a system where police put evidence in the affidavit form and are not cross-examined on it. Look at the case of Brandon v. British Columbia (Superintendent of Motor Vehicles) where an officer engaged in what the court called “evident perjury.” Shortly after that case, Justice Saunders who wrote the decision, decided a second case involving the same officer called Christie v. British Columbia (Superintendent of Motor Vehicles) where the officer again included information in his sworn report that the court determined was “evidently false.”
Nor is it reasonable to say that only those unscrupulous and unethical officers would go so far as to provide false evidence. The officer that was the subject of the Brandon and Christie decisions is well-regarded as one of the top impaired driving enforcement officers in Western Canada. It’s hard to square that reputation on paper with the decisions of the court. And, having read reports subsequent to these decisions from this officer, I am well aware that he does not include his history of adverse credibility findings in his sworn reports so that his credibility can be assessed with those findings in mind.
In a criminal trial, a finding like that would be the type of information put to an officer in cross-examination. The officer would be asked to explain himself, and the court would consider his history of deception in weighing his credibility. Where the evidence of a police officer is distilled down to an Affidavit with only the content they choose to include represented, it becomes all but impossible to discern the truth.
This problem is not limited to British Columbia’s impaired driving laws. Courts routinely deal with cases involving challenges to applications for search warrants. The law requires the police to give full, frank, and fair disclosure in making an application to obtain a search warrant. This does not mean just information that supports the charge investigated but also that which does not support it. All exculpatory evidence must be disclosed.
But a quick search on CanLII reveals that the obligation to make full, frank, and fair disclosure is often not met by police. There are cases of inadvertent omissions, and more serious cases of deliberate omissions or recasting of the facts and evidence.
I participated in a challenge to a search warrant where an officer had failed to include evidence of surveillance of an alleged drug house where he had received information that the house was to be “swarmed with drug dealers.” In finding that the officer had breached his obligation to provide full, frank, and fair disclosure the judge said as follows:
It is inconceivable that the officer could have made the totality of the errors which he did without a conscious intention on his part to ignore his obligation to provide full and frank disclosure to the justice of the peace. I am prepared to and do find that there must have been bad faith on the part of [the constable] in omitting the reference to the surveillance conducted that day and the prior observations of the residence and in completely misstating the nature of his prior contact with [the accused].
The Crown, incidentally, in that case had opposed the application by defence to cross-examine the officer on the information he submitted to obtain the search warrant. Without cross-examination, however, the facts of the surveillance that did not show any behaviour consistent with drug trafficking would never have been revealed as omitted.
In the same case, the officer had testified that he chose certain wording in the application for a search warrant because to his mind, it meant something that was different than the ordinary meaning of those same words. It was a moment that reminded me of what Humpty Dumpty said to Alice, in Through the Looking Glass and What Alice Found There: “When I use a word … it means just what I choose it to mean—neither more nor less.”
That type of thinking about providing evidence in Affidavits is not isolated to this one case. It is a common occurrence for police to capitulate on the ordinary meaning of words and explain their “special meaning” in cross-examination. But without cross-examination, a person can never know what that is.
The Supreme Court of Canada has long since recognized the importance of cross-examination in a criminal or other prosecution, quoting in 1981 from Wigmore on Evidence in the decision in Innisfil Township v. Vespra Township:
It is within the context of a statutory process that it must be noted that cross-examination is a vital element of the adversarial system applied and followed in our legal system, including, in many instances, before administrative tribunals since the earliest times. Indeed the adversarial system,founded on cross-examination and the right to meet the case being made against the litigant, civil or criminal, is the procedural substructure upon which the common law itself has been built. That is not to say that because our court system is founded upon these institutions and procedures that administrative tribunals must apply the same techniques. Indeed, there are many tribunals in the modern community which do not follow the traditional adversarial road. On the other hand, where the rights of the citizen are involved and the statute affords him the right to a full hearing, including a hearing of his demonstration of his rights, one would expect to find the clearest statutory curtailment of the citizen’s right to meet the case made against him by cross-examination. In Wigmore on Evidence (Chadbourne Rev. 1974) vol. 5, p. 32, para. 1367, the following analysis of the role of cross-examination appears:
For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience.
Not even the abuses, the mishandlings, and the puerilities which are so often found associated with cross-examination have availed to nullify its value. It may be that in more than one sense it takes the place in our system which torture occupied in the mediaeval system of the civilians. Nevertheless, it is beyond any doubt the greatest legal engine ever invented for the discovery of truth.
…
If we omit political considerations of broader range, then cross-examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law to improved methods of trial procedure.
Never have they resiled from this position, and the law of evidence has not evolved to an understand that cross-examination is somehow less important than expressed by Wigmore on Evidence here. It is the best and often the only tool that defence counsel have in their toolkit to guard against the problem of wrongful conviction.
Bill C-75 limits cross examination significantly. It provides the following provision added to the Criminal Code:
657.01 (1)
In any proceedings, the court may allow routine police evidence, if otherwise admissible through testimony, to be received in evidence by affidavit or solemn declaration of a police officer and may, on its own motion or at the request of any party, require the attendance of that police officer for the purposes of examination or cross-examination, as the case may be.
At first glance, that may seem to be fine. If defence counsel wishes to cross-examine the witness, then they are permitted to do so. However, Section 657.01(2) also permits the court to consider a number of factors in assessing whether to grant an order requiring the officer to attend for cross-examination. It is not an automatic right to demand the witness be present. Moreover, defence is required to give advance notice of its desire to cross-examine the officer, which means that an application must be brought and the proposed basis for the cross-examination explained to the judge.
Defence counsel is thus required to reveal their hand. A cross-examination becomes completely ineffective if the person being examined knows what they are being asked and why. And yet there is no operational safeguard built into the legislation to prevent the officer from being told the basis of the examination or from obtaining the application materials.
Moreover, the definition of “routine police evidence” in Section 657.01(7) is deliberately broad. It states:
“routine police evidence” means evidence of a police officer related to
(a) gathering evidence and making observations;
(b) analysing, preserving or otherwise handling evidence;
(c) identifying or arresting an accused or otherwise interacting with an accused; or
(d) other routine activities similar to those set out in paragraphs (a) to (c) that the police officer undertook in the course of their duties.
That is the whole of policing.
Imagine this through the lens of an impaired driving trial. These trials are commonly a single police witness, which witness testifies about the observations and behaviour of the accused, files a Certificate setting out the blood alcohol readings, and then is cross-examined. Every aspect of that officer’s testimony falls within the definitions explicit in Sections (a) through (c). On that basis, an impaired driving trial could be done entirely by the Crown filing an Affidavit from the officer, and defence counsel arguing, likely in futility, about the content of that Affidavit.
Proponents of Bill C-75 may argue that this section of the Bill will reduce the amount of time trials take. Cross examination will not occupy a significant period of court time. However, that is erroneous. Not only will more court time be wasted on these pre-trial applications, which must be brought well in advance of trial, but also more court time will be wasted on then having another document against which the officer can be examined.
Currently, in most police investigations, the police prepare a narrative report to Crown Counsel, as well as handwritten notes at the time of the investigation. There are often also photographs or videos or audio recordings, and in driving-related files, reports to the Superintendent of Motor Vehicles. Each of these is a prior statement on which the officer can be cross-examined. Adding an Affidavit into the mix will only increase the number of cases wherein an officer is asked about something that was earlier said that was inconsistent.
The BC Provincial Court has identified the importance of this in a credibility assessment case. In R. v. Cunha the Court was dealing with the credibility of an officer who happened to be investigating a different police officer for a number of driving offences. The Court stated, with respect to credibility and examination on prior statements as follows:
Probably the most valuable means of assessing the credibility of a crucial witness, such as Constable Sadari, is to examine what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minor matters are normal and to be expected. They do not generally affect the credibility of a witness. Where the inconsistency involves material matters, such as those contained in the report to the superintendent, about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth.
If you add another prior statement to the trial process and then cross-examination is allowed, the length of the trial will necessarily increase as inconsistencies in the prior statement are explored.
Proponents of these changes may also argue that the provisions allowing for consideration of whether the Affidavit evidence is to be received protect constitutional rights, including expressly the right to make full answer and defence and the importance of a fair trial. And while those words may be in the proposed legislation, by putting them in the text amongst other considerations such as the efficiency of the trial and the catch-all of any other considerations the court feels relevant dilutes constitutional obligations.
Remember that the Charter is not a series of guidelines that are to be followed and balanced with other considerations not set out in the Charter. The Charter is a part of the constitution, and is the supreme law of the country. They are rights that are guaranteed. They are not to be reduced as they have been in Bill C-75 to something less than a right and more of a consideration.
It may be argued in defence of these provisions allowing Affidavit evidence by police that it will only be used for those witnesses who are non-controversial. But any defence lawyer worth their salt will tell you that all witnesses are controversial. Part of an effective trial is setting up lines of questioning in careful ways. In my cases I may ask a seemingly-meaningless witness who took photographs questions about the layout of an area. However those questions are designed to obtain certain specific information as a foundation for questions I will ask a more important witness, who either may not be able to comment on those aspects or who provides a different version.
No witness is insignificant or inconsequential when a carefully-composed cross-examination is crafted. To reduce any witness to this status both denies and denigrates the hard work defence counsel do in cross-examining police witnesses.
Eliminating cross-examination by reducing trials to a paper format presents a host of challenges for the government. It violates constitutional guarantees, and will only ensure that the truth becomes obscured using failure to disclose, carefully-selected language, and omission of relevant detail. When considering the validity of the provisions in Section 657 of Bill C-75, the words of Justice McEwan in Kenyon v. British Columbia (Superintendent of Motor Vehicles) say it best:
The fact is, however, that if you create a document-only regime with no opportunity to cross examine, you create a regime where the thing the delegate in Spencer imagined – that the story was tailored – may be possible. The limitation on the allowable evidence will often make it impossible, on a principled basis, to determine whether this is what happened. Whatever the presumed efficiency of this form of hearing is, its drawbacks are intrinsic as well.
And in a justice system built on a Charter of Rights and Freedoms and constitutional guarantees, the intrinsic drawbacks simply cannot be tolerated.
