COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Ball,

2019 BCCA 32

Date: 20190128

Docket: CA43606

Between:

Regina

Respondent

And

Jonathan David
Ball

Appellant

Corrected
Judgment:  The text of the judgment was corrected at paragraph 47 on February
1, 2019

Before:

The Honourable Madam Justice D. Smith

The Honourable Madam Justice Dickson

The Honourable Madam Justice Fisher

On appeal from:  Orders
of the Supreme Court of British Columbia, dated January 25, 2016 (conviction) (
R.
v. Ball
, Nanaimo Docket No. 77086) and March 24, 2016 (sentence) (
R. v.
Ball
, 2016 BCSC 79, Nanaimo Docket No. 77086).

Counsel for the Appellant:

G. Kosakoski
N. Moses

Counsel for the Respondent:

M. Scott

Place and Date of Hearing:

Vancouver, British
  Columbia
March 16, 2018

Place and Date of Judgment:

Vancouver, British
  Columbia

January 28, 2019

Written Reasons by:

The Honourable Madam Justice Dickson

Concurred in by:

The Honourable Madam Justice D. Smith

The Honourable Madam Justice Fisher

Summary:

The appellant challenges his
conviction for arson and breaking and entering in connection with fires set to
the house and garage of an estranged acquaintance.  He contends the judge
failed to instruct the jury adequately on the relevance of his psychiatric
condition to his defence of false confession, trial counsel failed to provide
him with effective assistance and, viewed separately or in combination, the
judges errors and trial counsels ineffective assistance resulted in an unfair
trial and a miscarriage of justice.  The appellant also applies to admit fresh
evidence in support of the ground of appeal relating to ineffective assistance
of counsel.  Held: Appeal allowed, fresh evidence admitted.  The judge admitted
key Crown evidence without testing its questionable admissibility and failed to
intervene when Crown counsel elicited irrelevant and prejudicial character
evidence.  The judge also expressed undue scepticism regarding the appellants
self-report of poor mental health, which the appellant relied upon in advancing
his defence of false confession.  The cumulative effect of these errors and
irregularities rendered the appellants trial unfair and resulted in a
miscarriage of justice.

Reasons for Judgment of the Honourable
Madam Justice Dickson:

Introduction

[1]

Jonathan Ball confessed to police that he burned down the house and
garage of an estranged acquaintance.  According to his former girlfriend, he
told her the same thing.  On January 25, 2016, following a six-day trial, a
jury convicted Mr. Ball of two counts of arson and two counts of breaking
and entering in connection with the fires.  On March 24, 2016, the presiding
judge sentenced him to 15 months imprisonment followed by two years of
probation.

[2]

Mr. Ball appeals the convictions on the basis that his trial counsel
and the judge committed numerous errors and prejudiced his right to a fair
trial, which led to a miscarriage of justice.  In particular, he contends, his trial
counsel failed to mount his false confession defence effectively, the judge failed
to instruct the jury on the defence adequately and both failed to intervene
when Crown counsel adduced inadmissible evidence throughout the course of the
trial.  As a result, Mr. Ball says, he was deprived of his fair trial
rights and there was a miscarriage of justice.  In consequence, he asks us to
set aside the verdict and order a new trial.

[3]

In my view, Mr. Ball has not established his claim of ineffective
representation.  Nor has he established that the judge instructed the jury inadequately.
Nevertheless, for the reasons that follow, I conclude a series of errors and
irregularities occurred during the trial which, considered as a whole, rendered
it unfair and resulted in a miscarriage of justice.  I would, therefore, allow
the appeal, set aside the verdict and order a new trial.

Background

[4]

In June of 2013, Mr. Ball was an anxious, depressed, socially
isolated 26-year-old.  He lived with his parents in Qualicum Beach and took
medication daily for his poor mental health.  He also consulted periodically
with a psychiatrist and received many psychiatric diagnoses, including
generalized anxiety disorder, depression and panic disorder.  However, despite
his mental health challenges, Mr. Ball was able to work from time to time as
a cook and he played guitar in a band.

[5]

One of Mr. Balls bandmates was Mark Maskell.  Mark Maskells parents,
David and Sandra Maskell, owned a property in Errington, a small rural
community near Qualicum Beach.  Located on five acres, the Maskell property had
several buildings, including a two-level house, a detached garage and a fishing
cabin.  Mr. Ball often spent time at the Maskell house for band rehearsals
and, on occasion, left his music equipment there.

[6]

In addition to working and playing in the band, Mr. Ball carried on
sometimes overlapping romantic relationships with women.  Between 2011 and
early-2013, he and Carmen Lacey lived together in a turbulent on-and-off relationship.
By June of 2013 they had broken up, but they remained in contact and were
considering the possibility of a reconciliation, although, unbeknownst to Ms. Lacey,
Mr. Ball was also romantically involved with Brooklyn Mrychka.  Ms. Mrychka
was Mark Maskells former girlfriend.

[7]

Messrs. Ball and Maskell fell out when Mr. Ball started dating Ms. Mrychka.
As a result, Mark Maskell quit the band.  Shortly thereafter his father
returned most, but not all, of Mr. Balls music equipment.  In particular,
Mr. Maskell did not return an amplifier that belonged to Mr. Ball.

[8]

On June 26, 2013, the garage on the Maskell property burned down.  The
police suspected the fire was set deliberately and Constables Kiperchuk and
Racz attended to investigate the next day.  When they arrived they found a broken
window at the back of the house, smoke coming out the door and, within minutes
of their arrival, the house was fully on fire.  The officers immediately called
the fire department and firefighters arrived promptly, but they could not save
the house.

[9]

After the fire, the police continued to investigate.  Early on, they
suspected the owners, David and Sandra Maskell, might be responsible.  They
also considered Brooklyn Mrychkas father, David Mrychka, a suspect based on a
report that Mr. Mrychka had threatened the Maskell property.  As a result,
they arrested and forcefully questioned Mr. Mrychka, but he steadfastly maintained
his innocence.  At the end of the interview, he was released and arson charges
were not laid.

[10]

Approximately two weeks after the fires, Ms. Lacey walked into the
Parksville RCMP detachment and informed Constable Carr that Mr. Ball told
her he set the fires at the Maskell property.  Ms. Lacey said she discussed
the fires with Mr. Ball, in person and over Facebook, and she called up several
Facebook messages on a detachment computer monitor, which Constable Carr
photographed.  The first photograph was of a message sent, according to the
history timeline, at 3:27 p.m. on June 27, 2013 by Johan Gorrific Amputation,
which Ms. Lacey identified as Mr. Balls Facebook name.  It read: I
was at Marks. Theres nothing left of the garage. I broke in the basement of
the house and looked for anything of value, couldnt find anything so I lit the
basement on fire.  Other photographed messages included discussion of the
fires and Ms. Laceys advice that Mr. Ball [e]rase anything u said
here.

[11]

Constables Carr and Racz worked at different detachments.  After Ms. Lacey
made her statement, Constable Carr contacted Constable Racz, informed him of
what had occurred and passed on the photographs of the Facebook messages.  As a
result, he arrested Mr. Ball and interviewed him regarding the fires.
During the first part of the interview, Mr. Ball denied any involvement
and, when Constable Racz confronted him with the messages, he responded that
they didnt look right at all, they were very fake and Ms. Lacey might
want revenge because he chose Ms. Mrychka.  As the interview progressed,
however, Constable Racz suggested that Mr. Ball broke into the Maskell property
to get his amplifier back and lit the place on fire when he could not find it.
After more denials and an attempt to implicate Ms. Lacey, Mr. Ball
confessed that he set the fires.

[12]

Mr. Ball told Constable Racz he was angry at Mark Maskell for how
he had treated Ms. Mrychka and that he wanted to get back his amplifier.
Among other things, he said that he broke a
basement
window of the
Maskell house with a rock, entered the house through the window and set the
fires spontaneously.  He also said that he lit some plastic hanging along the
basement wall, told Ms. Lacey he set the fires and sent her the Facebook
messages, which he later deleted.  When the interview concluded, Constable Racz
gave Mr. Ball 75 milligrams of his psychiatric medication, Venlafaxine.

[13]

The police did not attempt to identify and search the computing device
used to record the Facebook messages or locate the rock that Mr. Ball said
he used to break the basement window at the Maskell property.  Nor did they
find forensic evidence linking him to the fires.  After he confessed, Mr. Ball
was charged with two counts of arson and two counts of breaking and entering.
He retained trial counsel to represent him and elected to be tried by a judge
and jury.

At Trial

The Crown Case

[14]

The only Crown evidence implicating Mr. Ball in the fires was his
confession to Constable Racz and his alleged admissions to Ms. Lacey, in
person and via Facebook.  Before the trial began, trial counsel conceded that the
confession was voluntary and thus admissible, although, he told the judge, it
was a false confession.  He said nothing about the admissibility of the photographed
Facebook messages and they were not mentioned in formal admissions filed by the
Crown.  For his part, Crown counsel asked that several items be marked in
advance as exhibits for identification, including the photographs, which occurred.

[15]

In his opening address, Crown counsel told the jury that the Crowns
case had two key elements: Mr. Balls confession and his admissions to Ms. Lacey.
Then he called Constable Kiperchuk as the first Crown witness.  Constable
Kiperchuk testified that he and Constable Racz arrived at the Maskell property at
approximately 2:45 p.m. on June 27, 2013, that he noticed a broken
upper
window at the back of the house and that he did not see any other broken windows.
He also testified that Constable Racz told Mr. Ball about the Facebook
messages during the police interview.  At that point in his testimony, Crown
counsel showed Constable Kiperchuk the photographs, he identified them as photographs
Constable Carr took of Facebook messages that Ms. Lacey showed her and Crown
counsel asked that they be made a trial exhibit.  No one raised any concern,
the photographs were marked compendiously as Exhibit 5 and copies were immediately
distributed to the jury.

[16]

The second Crown witness was Constable Racz, who introduced Mr. Balls
confession into evidence.  Among other things, he confirmed there was no investigation
regarding the computing device used to record and send the Facebook messages.

[17]

Next, Crown counsel called Ms. Lacey.  She testified that she first
learned of the Maskell fires when Mr. Ball told her, in person, that he
lit the garage fire, and, via Facebook, that he broke into the house and set it
on fire.  She also said that some weeks later she reported his admissions to
Constable Carr and called up the Facebook messages on a police computer, and
that Constable Carr took photographs.  She said further that she imagined Mr. Ball
used his smartphone to send the messages and that she used hers throughout the
exchange.

[18]

When she testified, Ms. Lacey repeatedly indicated that she could
not recall the precise timing of the events in question.  She also said her
awareness of how Facebook operated was general in nature, although she used it quite
regularly.  As to the timing of events, she said a history timeline on the photographs
showed the date and time the messages were exchanged, but said nothing about
how or why she thought that information was accurate.  Referring to the photographs,
she testified that Mr. Ball sent the first message regarding the Maskell
fires at 3:27 p.m. on June 27, 2013.

[19]

Ms. Lacey was the only Crown witness called to explain the operation
of Facebook Messenger, which she characterized as similar to text messaging.
She said that Facebook users communicate with others on a Friends list, but
that to do so they must use a password to log in.  She also said she did not know
Mr. Balls password, but acknowledged having sent a message on his Facebook
account when they were in the same room together.  On cross-examination, trial
counsel implied that Ms. Lacey accessed Mr. Balls account and created
the Facebook messages, although he did not ask her directly if Mr. Balls
password was stored on her computer.

[20]

Near the end of Ms. Laceys direct examination, Crown counsel asked
if the police were ever involved during her relationship with Mr. Ball.  She
replied in the affirmative.  When Crown counsel asked her to elaborate, she
said the relationship was physically violent and that Mr. Ball assaulted
her by pushing her down stairs, grabbing her hair and choking her.  No one
objected or intervened as Crown counsel elicited this evidence, although, on
cross-examination, trial counsel challenged her claim that she was the victim
of the domestic violence and tried to cast Mr. Ball as its true victim.
He also elicited evidence from Ms. Lacey that she intensely disliked Mark Maskell,
that Mr. Ball had psychiatric problems and that she spoke to Constable
Carr on the same day she learned Mr. Ball was romantically involved with Ms. Mrychka.

[21]

The other Crown witnesses were David and Sandra Maskell and David Mrychka.
The Crown did not call anyone other than Ms. Lacey to authenticate the messages
or testify regarding the computer systems on which the data in the photographs
was recorded or stored.  Trial counsel made three formal admissions of fact pursuant
to s. 655 of the
Criminal Code
which, as noted, were filed as an
exhibit, but none related to the photographs.

The Defence Case

[22]

After the Crown closed its case, trial counsel made a brief opening
address in which he described Ms. Lacey as a vindictive ex-girlfriend and Mr. Balls
confession as tainted by police suggestion.  Then he called Mr. Ball as
the first witness for the defence.  Mr. Ball began by describing his
background and mental health challenges, testifying that his memory and
cognitive function are poor and stating he suffers from anxiety and depression
for which he requires daily medication, regular psychiatric care and occasional
hospitalization.  He also testified that, if he misses a dose of his medication,
Venlafaxine, he becomes extremely comatose and violently ill.

[23]

Like Ms. Lacey, Mr. Ball testified about Facebook Messenger.
He said that both he and Ms. Lacey used Facebook on her home computer when
they lived together, that a users password can be stored on a computer and that
he suspected Ms. Lacey might have his password when Constable Racz showed
him photographs of the faked messages.  As to his relationship with Ms. Lacey,
Mr. Ball said it was marked by violence on her part.  On
cross-examination, he said that he did not see the messages in the photographs on
his Facebook account prior to his arrest.

[24]

Turning to June 27, 2013, Mr. Ball testified that he did errands
that day and visited with his grandmother.  A few weeks later, he said, he went
to the RCMP detachment and, when he arrived, Constable Racz blindsided him by
accusing him of a crime.  He also said that he did not take his medication that
morning, he was in a very delusional state and he was struggling with anxiety
and a faulty memory throughout the police interview.  However, he said,
eventually, he began to feel Constable Racz might know his memory better than
he did, and, as his medication tapered off, in a dream-like state, hoping to go
home, he told the police exactly what they wanted to hear.  In other words,
he said, he falsely confessed to setting the fires, filling in details that
seemed plausible or that came from Constable Racz.

[25]

The other defence witnesses were Mr. Balls grandmother, Loretta
Ostman, and Brooklyn Mrychkas mother, Shirley Mrychka.  Ms. Ostman
provided an alibi for Mr. Ball, testifying that he visited her in her home
on June 27, 2013 between approximately 12:30 and 3:00 p.m.  Ms. Mrychka
testified that, before the fires, Mr. Maskell told her the house would
never sell and that it just needs to be bulldozed.

Closing Addresses of Counsel

[26]

In his closing address, trial counsel asked the jury to disregard Ms. Laceys
venomous testimony and emphasized her prior access to Mr. Balls
Facebook account.  After remarking on his quirky character and emotional
vulnerability, he asserted that Mr. Ball confessed falsely to police because
he wanted to go home.  Noting the absence of corroborating evidence, Ms. Ostmans
alibi evidence and the Maskells possible motive for setting the fires, he argued
it would be unsafe for the jury to convict Mr. Ball based on his recanted confession.

[27]

In his closing address, Crown counsel focused on the Facebook messages
and Mr. Balls confession, telling the jury it could analyze those things
and determine for yourselves whether they are reliable, or believable.  He
described Mr. Balls demeanour as relaxed throughout the police interview
and said his denials did not hold up, particularly given the details of the
crimes he recounted.  He also highlighted the details of Mr. Balls
alleged admissions to Ms. Lacey, called the Facebook messages a running
conversation just after the fire is burning and urged the jury to use its common
sense in reaching its verdict.

Judges Charge to the Jury

[28]

Ms. Laceys evidence and Mr. Balls confession also featured
prominently in the judges charge to the jury.  He reminded the jury that Mr. Ball
denied any involvement in setting the fires, denied admitting anything to Ms. Lacey
and claimed she faked the Facebook messages by accessing his account.
However, he said, if the jury accepted that Mr. Ball sent the Facebook messages,
they should consider whether any evidence supported the truth of their
content.  By way of example, he noted the time of the June 27, 2013 message
corresponded closely to the time of the Maskell house fire.

[29]

The judge told the jury to follow a similar approach when assessing the
truth of the content of Mr. Balls confession.  For example, he noted, there
was no evidence of the rock Mr. Ball told Constable Racz he used to break
the window at the Maskell house.  He also told the jury to consider Mr. Balls
condition when he confessed and, in doing so, called Mr. Balls medical
condition self-reported:

Now, in assessing whether or not
you conclude that these statements are true, you should consider the condition
of the accused at the time he made the statement to police, if you find the
accused was suffering from any mental disability, or was under the influence of
alcohol or drugs at the time he made the statement, you should take this into
account when you determine the weight you will give to the statement.  Here,
the suggestion is that a combination of [Mr. Balls] personality, combined
with a lack of medication and the manner of the interview led to what the
accused says is a false confession.
The accuseds medical condition is
self-reported.
You should consider his demeanour throughout the whole of
the police interview.  The accused, while acknowledging he made the statement
to the officers, testified, under oath, that certain parts of the statement
were not true.  In particular, he denied those portions of the statement
wherein he acknowledged setting both fires were true.

[30]

The judge went on to tell the jury that a person can be convicted on the
strength of a confession without any corroborative evidence, although people
sometimes confess falsely:

While it may seem
counter-intuitive that someone would admit to a crime they did not commit, it
has happened.  Confessions can be unreliable.  People can be persuaded to utter
what amounts to a false confessions for a number of reasons.  The criminal
justice system is all too aware of the fact that people have been known to
confess to things they have not done.  People have been known to make false
confessions out of fear, out of hope, or promise, or favour.  You should not
begin your deliberations with the mindset that people only confess to crimes
they have actually committed.

[31]

Next, the judge instructed the jury in accordance with
R. v. W.(D.)
,
[1991] 1 S.C.R. 742.  He reminded them that the weight to attach to the
evidence was a matter for their determination and noted Mr. Ball testified
regarding both his confession and Ms. Laceys testimony:

Ultimately, the weight you attach
to the accuseds statement to police, your conclusion as to who authored the
Facebook messages, marked as Exhibit 5, and the conversations said to have
occurred between the accused and Ms. Lacey, will inform the verdict you
reach.  There is no other evidence implicating the accused in the fires of June
26 and 27, 2013.  Mr. Ball testified, he denied he committed the offences,
and he offered an explanation as to the statement given by him to police, and
challenged the authenticity of the exchange on Facebook with Ms. Lacey. In
considering the evidence of the accused you should consider it as follows
[standard
W.(D.)
instruction].

[32]

Then, the judge turned to a review of the evidence.  Dealing first with Ms. Laceys
testimony, he said that she acknowledged the volatile relationship and
testified Mr. Ball instigated the violence.  He also noted the competing
versions as to who was the aggressor and told the jury not to consider Mr. Balls
allegations that Ms. Lacey attacked him when assessing the reliability of
her testimony regarding the Facebook messages:

I will tell you that
considerations of the relationship and its volatility are collateral to the
issue you are deciding.  Some of the accuseds testimony regarding Ms. Lacey
was never put to her, for her to agree or deny it.  Instances of that are the
testimony by the accused as to his injuries and of Ms. Laceys
premeditations about harming or murdering people.  Please do not consider such
allegations when you come to assess the reliability of Ms. Laceys account
of the origins of Exhibit 5.

[33]

The judge did
not
instruct the jury not to consider Ms. Laceys
allegations that Mr. Ball attacked her in arriving at its verdict.  However,
he did summarise Mr. Balls account of confessing falsely and his denial
that he set the fires.  As to the former, the judge said this:

The accused acknowledged making the statement to the police,
but testified that same came about as a
combination of his not taking his
medications that morning
in his rush to get to the police station to report
the missing wallet,
his cognitive function and compliant personality
,
and
the aggressive position of the two officers
in failing to believe
his original denials of any involvement.

He testified that he had a
poor memory
, and came to
believe after
repeated prodding
by police that maybe his memory was
wrong, and he had done the things he was accused of.  He said that he became
increasingly
scared
, and
wanted to be compliant
with the officers, whom he
described as
hostile
in their facial expressions.

He testified that he
either
adopted what was being said
by the officers, chiefly Constable Racz,
or
that he made things up
on the fly to please them.

[34]

The judge went on to outline the essential ingredients of the offences,
the positions of the parties and the available verdicts.  He ended his charge
with several standard instructions, after which the jury retired to deliberate.
In the course of their deliberations, the jury returned with a single question:
What time did the officers arrive to find the house in flames?  After
consulting with counsel, the judge responded that both officers testified they
arrived at the Maskell property at around 2:45 p.m.  An hour later, the jury
returned with guilty verdicts on all four counts of the indictment.

Sentencing

[35]

The judge ordered a presentence report and, in that context, Mr. Ball
was referred for a psychological assessment.  In his report, the assessor, Dr. Ferguson,
outlined Mr. Balls mental health history and described him as a fragile
and vulnerable young man who lacks coping skills to manage stressful
situations and is impaired by anxiety and dependent personality traits.

On Appeal

Appellants Position

[36]

On appeal, Mr. Ball contends the judge failed to instruct the jury
adequately on the relevance of his psychiatric condition to his defence of
false confession.  Although he provided a general instruction on the phenomenon
of false confessions, he says the judge did not relate the evidence of his
distinctive behavioural characteristics and vulnerabilities to his claim that
he falsely confessed.  In Mr. Balls submission, without an adequate
instruction the jury lacked the necessary tools to evaluate the reliability of
his confession, which non-direction prejudiced his fair trial rights and
amounted to a reversible legal error.  The judge compounded this error, he
says, by remarking that his medical condition was self-reported, which was
both inappropriately disparaging and manifestly incorrect.

[37]

In addition, Mr. Ball contends, trial counsel failed to provide him
with effective assistance, which led to a miscarriage of justice.  In his
submission, this occurred because trial counsel did not appreciate that false
confessions can be produced by an accuseds vulnerabilities despite the absence
of improper police conduct, which led him to focus exclusively on the police
misconduct issue.  As a result, Mr. Ball says, trial counsel failed to obtain
expert evidence such as that of Dr. Ferguson regarding his psychiatric
condition and its relationship to his false confession.  He also failed to
introduce his psychiatric records or object to the judges inadequate jury
instruction and failed to appreciate the significance of the Facebook messages,
investigate their authenticity or object to their admissibility when Crown
counsel introduced them improperly through Constable Kiperchuk.

[38]

Viewed separately or in combination, Mr. Ball submits, the judges
errors and trial counsels ineffective assistance resulted in an unfair trial
and a miscarriage of justice.  In consequence, he submits, this Court should
set aside the verdict and order a new trial.

Respondents Position

[39]

The Crown responds that the judges instruction on the false confession
defence was adequate.  According to Crown counsel, in language approved by this
Court in
R. v. Earheart
, 2011 BCCA 490, it dispelled the incorrect
assumption that nobody would confess to something they did not do.  Emphasizing
the absence of evidence of police misconduct and the judges summary of Mr. Balls
testimony, he says the evidence that Mr. Ball suffered from significant
anxiety, took medication and experienced symptoms without it was uncontested.
In these circumstances, he submits, the judges comment that Mr. Balls
medical condition was self-reported was simply unnecessary.

[40]

However, Crown counsel argues, if the judge erred, the
curative
proviso
applies and a new trial should not be ordered.  This is so, he says,
because, quite apart from his police confession, Mr. Ball admitted that he
set the Maskell house fire to Ms. Lacey via Facebook
less than an hour
after it was discovered,
before
anyone but the arsonist, firefighters
and police knew it had occurred.  He goes on to say this powerful evidence was
not credibly answered by the highly implausible defence theory that Ms. Lacey
hacked Mr. Balls Facebook account and fabricated the messages, given
their timing and details.  Accordingly, he submits, even if the judge erred in
his charge on the false confession defence, it caused no prejudice because the
error could not have made a difference to the outcome of the trial.

[41]

As to Mr. Balls claim that trial counsel failed to assist him
effectively, Crown counsel emphasizes the presumption that counsels conduct
fell within the wide range of reasonable professional assistance.  In his
submission, that presumption has not been displaced.  On the contrary, he says,
trial counsel mounted a competent defence by fully airing credibility issues
regarding Ms. Lacey, attempting to demonstrate that she could have
fabricated the Facebook messages, calling alibi evidence from Ms. Ostman and
eliciting extensive testimony from Mr. Ball concerning his mental health
and his reasons for confessing.  In addition, he says, the fresh evidence
reveals that trial counsel retained a renowned specialist on false confessions,
negotiated a favourable plea arrangement and urged Mr. Ball to obtain
up-to-date clinical records and a helpful report from a treating psychiatrist,
which Mr. Ball failed to obtain.

[42]

According to Crown counsel, the foregoing steps were all reasonable,
diligent and well within the range of effective assistance by trial counsel.
In any event, he argues, Mr. Ball was not prejudiced by any deficiency in
his representation given the timing of the damning Facebook messages, which Ms. Lacey
authenticated and which, he says, virtually dictated the trials outcome.

Fresh Evidence Application

[43]

In support of the ground of appeal relating to ineffective assistance
of counsel, Mr. Ball applies to admit fresh evidence in the form of
affidavits from himself and his trial counsel.  In his affidavits, Mr. Ball
deposes that he has suffered from psychiatric illness for many years and
appends extensive clinical records in this regard.  He also deposes that, when
he misses a dose of his medication, he experiences discontinuation syndrome,
which leaves him feeling disoriented and fearful.  He says he explained his psychiatric
condition and discontinuation syndrome to trial counsel and gave him the
records, but trial counsel did not seem interested.  Nor, he says, did trial
counsel assist him to retain a psychiatric expert to testify on these matters
at trial.

[44]

Mr. Ball deposes further that he told trial counsel the
photographed messages were not in his Facebook conversation history and tried
to explain his password might be stored on Ms. Laceys computer, but trial
counsel did not seem to understand or see the Facebook messages as important
evidence.  On the contrary, he says, trial counsel expressed a dislike for
computers, did nothing to investigate his Facebook account and did not request
any Facebook-related information from either the Crown or Facebook.

[45]

In addition to appending his psychiatric records, Mr. Ball appends
screenshots of his June 27, 2013 Facebook conversations with Ms. Lacey which
do not include the conversation about the fires depicted in the photographs.  He
also describes an experiment which shows a message can be deleted from one
Facebook account but remain intact in the other and deposes that Ms. Lacey
told him her brother, Eric Lacey, was a volunteer firefighter for the Maskell
property area at the time of the fires, which an appended newspaper clipping
confirms.

[46]

In his responsive affidavit, trial counsel acknowledges that he and Mr. Ball
discussed Mr. Balls psychiatric issues from the outset and that he reviewed
Mr. Balls psychiatric records.  However, he describes the records as
unhelpful for purposes of demonstrating that his confession was coerced because
they do not indicate a propensity to fabricate or an unusual susceptibility to
police interrogation.  He also acknowledges that he did not assist Mr. Ball
to obtain a report from a treating psychiatrist and explains this was because it
was Mr. Balls responsibility and he could not do it independently.  As a
result, he deposes, he encouraged Mr. Ball to obtain expert evidence
connecting his psychiatric condition to the purportedly false confession, but
he did not do so.

[47]

Trial counsel goes on to depose that he retained a renowned specialist
in the field of false confessions, Dr. John Yuille.  He says Dr. Yuille
prepared a report stating the police did nothing improper to induce a false
confession and advised him over the phone that he considered Mr. Balls
confession spontaneous and genuine.  Faced with these results and lacking a
helpful expert report, trial counsel says he became discouraged with the false
confession defence and considered the Crowns case overwhelming.  As a result, he
says, he negotiated a favourable plea agreement, but Mr. Ball refused to
accept the offer made by the Crown.

[48]

As to the Facebook messages, trial counsel deposes that he was
interested but says they were only a small part of the evidence, concerned a peripheral
issue and paled in significance relative to Mr. Balls confession.  He
also deposes that he fully understood the password issue and put Mr. Balls
fabrication theory to Ms. Lacey on cross-examination, although he
considered it a very minor point in the trial and highly implausible in light
of the timing and content of the Facebook messages.  He goes on to express his
opinion that the jury convicted Mr. Ball because he confessed to police.

Issues

[49]

In my view, the following issues emerge from the submissions of the
parties, the evidence and the judges instructions to the jury:

a)

Did the judge err
by failing to instruct the jury adequately on the false confession defence?

b)

Did the judge
err by admitting the photographed Facebook messages without testing their
admissibility?

c)

Did the
judge err by permitting the Crown to adduce bad character evidence?

d)

Is the fresh
evidence admissible?

e)

Has Mr. Ball
established that trial counsel provided ineffective assistance?

f)

Has Mr. Ball
established a miscarriage of justice?

Discussion

Did the judge err by failing to instruct the jury adequately on the false
confession defence?

Adequacy of Jury Instructions

[50]

A trial judge has a general duty to ensure trial fairness.  In the
context of a criminal jury trial, that duty includes an obligation to instruct
the jury adequately.  The purpose of jury instructions is to educate and guide
the jury in reaching a true verdict according to the evidence.  Consequently,
jury instructions are adequate when they enable the jury to understand the live
issues, the relevant law and the salient evidence to be considered in resolving
the issues.  In other words, jury instructions are adequate when they are legally
correct, comprehensive and comprehensible:
R. v. Rodgerson
, 2015
SCC 38 at paras. 30, 50, 54;
R. v. Pearce
, 2014 MBCA 70 at paras. 111-112.

[51]

The extent to which the judge must review and relate the evidence to the
issues to achieve trial fairness is highly case-specific.  Generally speaking,
the judges task is to decant and simplify:
R. v. Jacquard
, [1997] 1
S.C.R. 314 at para. 13.  As Justice Bastarache explained in
R. v. Daley
,
2007 SCC 53:

[
57
]

The extent to which the evidence must be reviewed will depend on each
particular case.  The test is one of fairness.  The accused is
entitled to a fair trial and to make full answer and defence.  So long as
the evidence is put to the jury in a manner that will allow it to fully appreciate
the issues and the defence presented, the charge will be adequate: see
Granger, at p. 249.  The duty of the trial judge was succinctly put
by Scott C.J.M. in
R. v. Jack

(1993),
88 Man. R. (2d) 93 (C.A.)
, affd
[1994] 2 S.C.R. 310
: the task of the trial judge is
to explain the critical evidence and the law and relate them to the essential
issues in plain, understandable language (para. 39).

[52]

An accused is entitled to an adequately instructed jury, but not a perfectly
instructed jury:
Jacquard
at para. 2.  For this reason, appellate
courts adopt a functional approach in conducting a review.  The functional
approach requires an appellate court to consider jury instructions in the
context of the conduct of the trial as a whole, including the nature of the
evidence, the live issues, the theories and positions of the parties, the
addresses of counsel and counsels submissions with respect to the
instructions.  If the jury was properly instructed on the law and left, overall,
with a sufficient understanding of the facts as they relate to the issues, on
appeal the instructions will be considered adequate:
Daley
at paras. 57-58.
If they fail to meet these criteria, a legal error will be found:
Rodgerson
at para. 28;
Colpits v. The Queen
, [1965] S.C.R. 739.

False Confessions

[53]

A confession is an out-of-court statement made by an accused to a person
in authority, often a police officer.  Presumptively inadmissible unless proven
voluntary, confessions are a particularly powerful and damning form of
evidence.  This is true, at least in part, because it seems inherently unlikely
that an innocent person would incriminate himself or herself by falsely confessing
to a crime in response to police questioning.  People do not normally confess
to crimes they have not committed:
Pearce
at paras. 48-53;
R. v.
Hart
, 2014 SCC 52 at para. 102.  As Justice Iacobucci put it in
R.
v. Oickle
, 2000 SCC 38 at para. 34, the proposition that a confession is
false is counterintuitive.

[54]

However, false confessions can and do occur for a variety of reasons in
a wide range of circumstances.  When admitted as evidence, they can lead to miscarriages
of justice because they have a significant impact on the decision-making
process undertaken at trial.  An accused can be convicted on the basis of a
confession alone, despite the absence of any confirmatory evidence whatsoever:
R. v.
Singh
, 2007 SCC 48 at para. 29.  And judges and juries tend to
disbelieve
ex post facto
recantations by those who have previously
confessed:
Pearce
at paras. 48-53, 129.

[55]

In
Oickle
, Justice Iacobucci discussed the phenomenon of false
confessions in the context of considering the common law confessions rule.  After
noting the close relationship between false confessions and wrongful convictions,
he emphasized the importance of understanding why they occur:

[3
7]

Ofshe & Leo (1997),
supra
, at p. 210, provide a useful
taxonomy of false confessions.  They suggest that there are five basic
kinds: voluntary, stress-compliant, coerced-compliant, non-coerced-persuaded,
and coerced-persuaded.  Voluntary confessions
ex hypothesi
are not
the product of police interrogation.  It is therefore the other four types
of false confessions that are of interest.

[56]

In reviewing the four types of possibly involuntary false confessions, Justice
Iacobucci stated that proper police interrogations rarely produce a false
confession.  As a result, the common law confessions rule is well-suited to
protect against them, particularly as concepts of voluntariness and reliability
overlap to a significant extent:
Oickle
at paras. 45, 47.
Nevertheless, not all false confession claims can be properly adjudicated by
applying the common law confessions rule and excluding those that are not
proven voluntary.  Although rare, even admissible confessions may be false:
Pearce
at para. 60.

[57]

In
Pearce
, Justice Mainella conducted a thorough and thoughtful
review of the phenomenon of false confessions and the related risk of wrongful
convictions.  In addition to the common law confessions rule, he identified residual
judicial discretion to exclude evidence and appropriately informed fact-finding
as available safeguards against both.  As to the latter, he observed that accused
persons sometimes adduce expert evidence regarding their distinctive behavioural
characteristics and vulnerabilities to help explain why their voluntary confession
is nevertheless false or unreliable and he noted that experts and academics say
factors such as mental illness, significant personality traits and intoxicant
withdrawal may cause false confessions.  However, he stated, the admissibility
of expert evidence on these matters must be determined on a case-by-case basis
and it is subject to the
Mohan
criteria.  He also stated that, where a
false confession defence has an air of reality, a trial judge should instruct
the jury about the phenomenon of false confessions and relate the essential
evidence on the point to the defence so that jurors can appreciate its value
and effect:
Pearce
at paras. 56, 59-64, 81, 104-105, 118;
R. v. Phillion
,
2009 ONCA 202 at para. 217.

[58]

As I have already discussed, the extent to which a judge should review
and relate the evidence to the live issues when instructing a jury is also case-specific.
In cases involving a purportedly false confession, the content and form of an
appropriate jury instruction is a discretionary matter for the judge based on
the exigencies of the case.  That said, in my view, in addition to cautioning
the jury generally about the phenomenon of false confessions, the judge should review
the accuseds explanation for allegedly confessing falsely, relate the salient
evidence to the false confession defence and review the extent to which the
confessions details are consistent with or conflict with independently verifiable
circumstances.  In doing so, the judge should avoid expressing any personal disbelief,
direct or inferential, in the accuseds
ex post facto
recantation.  Overall,
the instruction will be adequate so long as it dispels the common assumption that
nobody would confess falsely and it provides the jury with necessary assistance
to evaluate the reliability of the confession in conducting the fact-finding
process:
Pearce
at paras. 118-120, 127-135;
Colpits
at 753.

Analysis

[59]

With these principles in mind, I turn to the question of whether the
judge instructed the jury adequately on Mr. Balls defence of false
confession.  While he could have said more, in my view, considered functionally
and in the context of the conduct of the trial as a whole, his charge on the defence,
though imperfect, was adequate.  He dispelled the common assumption that people
do not confess to crimes they have not committed by providing a general
instruction on the false confession phenomenon in language approved in
Earheart
.
Contrary to Mr. Balls submission, the judge also reviewed Mr. Balls
explanation for confessing, related the evidence of his compliant personality,
poor cognitive function and compromised medical condition to his false
confession defence and noted several consistent and inconsistent independent circumstances,
including the absence of evidence of the rock Mr. Ball said he used to
break the Maskell house window.  Although he did not mention that Mr. Ball
also said he broke a
basement
window whereas Constable Kiperchuk testified
he saw only a broken
upper
window at the Maskell house, this was likely
because counsel did not draw the potential inconsistency to his attention.  However,
this omission did not render the charge inadequate.

[60]

The judge summarised Mr. Balls testimony regarding his psychiatric
condition, his emotional state and his perception of and reaction to police
questioning briefly, without delving deeply into the details.  That was his
prerogative.  The trial was short, the evidence was fresh and his task was to
decant and simplify.  In my view, it would have been helpful to provide more
detailed, specific summaries of the evidence on these matters, but the judge
said enough to enable the jury fully to appreciate the factual issues related to
Mr. Balls defence of false confession.  In other words, he gave the jury sufficient
assistance to evaluate the truth and reliability of the confession in the light
of the salient evidence.  That being so, the content and form of the
instruction were matters within his discretion.

[61]

As Mr. Ball points out, the judge did not specifically instruct the
jury that his distinctive behavioural characteristics or vulnerabilities compromised
the reliability of his confession.  That is unsurprising.  There was no evidence
to this effect.  As Justice Mainella explained in
Pearce
, accused
persons will sometimes adduce expert evidence on mental illness and personality
traits to help explain why a confession is false or unreliable, but it is
case-specific and must satisfy the
Mohan
criteria.  In the absence of
any such evidence, the judge was not entitled simply to
assume
that Mr. Balls
psychiatric condition and personal vulnerabilities compromised the reliability
of his confession or instruct the jury that it should do so.

[62]

Unfortunately, however, the judge did convey a measure of personal scepticism
regarding Mr. Balls
ex post facto
recantation when he
characterized his medical condition as self-reported.  He made this remark
when instructing the jury on how to assess the truth of the confession.  The
remark followed his statements that the jury should take into account Mr. Balls
condition
if
you find the accused was suffering from any mental
disability and that the defence suggested Mr. Balls personality, combined
with a lack of medication and the manner of the interview, led to a false
confession.  It also immediately preceded his instruction that the jury should also
take into account Mr. Balls demeanour throughout the interview, which demeanour
the Crown contended did not accord with his self-described mental state when he
was interviewed.

[63]

Considering the judges remark in this context, the jury could have
inferred that he thought the absence of independent evidence regarding Mr. Balls
medical condition diminished the reliability of his self-report and thus detracted
from his explanation for confessing falsely.  In my view, he erred in making
the remark.  It was subtly disparaging and factually inaccurate. As the Crown
acknowledges, in addition to being uncontested, Mr. Balls testimony that
he suffered from poor mental health was corroborated at trial by both Ms. Lacey
and police witnesses. Nor did the judge remind the jury that their recollection
and impression of the evidence on the point was paramount.

[64]

Mr. Ball focused heavily on his poor mental health when explaining
why he allegedly confessed falsely.  Taking into account its central role in
his defence, in my view, the judges inferential expression of scepticism was
not a minor or inconsequential misstep.  Nevertheless, considered on the whole,
it did not render the charge on the false confession defence inadequate, nor, standing
alone, seriously compromise fundamental trial fairness.  However, as discussed
below, it was not the only error of consequence that was made in the course of
the trial.

Did the judge err by admitting the photographed Facebook messages without
testing their admissibility?

Electronic Evidence

[65]

The use of information technology in modern society is ubiquitous.
Given their prevalence, such technologies can generate a treasure trove of
relevant evidence, but that evidence may be malleable and its sources may not
be widely understood.  Our general rules and principles of evidence law
developed long before the advent of these technologies and, as a result, the
law has had to adapt to facilitate the admission of electronic documents while
screening for threshold authenticity and integrity.  Building on established
rules and principles, it has done so by imposing a complementary set of admissibility
rules via statute and related jurisprudence: David M. Paciocco, Proof and
Progress: Coping with the Law of Evidence in a Technological Age (2013), 11
C.J.L.T. 181.

[66]

The applicable statutory provisions for present purposes are ss. 31.1
to 31.8 of the
Canada Evidence Act
, R.S.C. 1985, c. C-5.  These
provisions create a framework for the admission of all forms of electronic
document, which is broadly defined in s. 31.8 together with several
related terms:

Definitions

31.8     The definitions in this section apply in section
31.1 to 31.6:

computer system means a device that, or a group of
interconnected or related devices on or more of which,

a)

contains
computer programs or other data; and

b)

pursuant to
computer programs, performs logic and control, and may perform any other
function.

data
means representations of information or of concepts, in any form.

electronic document
means data that is recorded or stored on any medium in or
by a computer system or other similar device and that can be read or perceived
by a person or a computer system or other similar device. It includes a
display, printout or other output of that data.

electronic documents system includes a
computer system or other similar device by or in which data is recorded or
stored and any procedures related to the recording or storage of electronic
documents

[67]

Facebook posts and messages, emails and other forms of electronic
communication fall within the definition of an electronic document.  Home computers,
smartphones and other computing devices fall within the definition of a
computer system.  Accordingly, the admissibility of Facebook messages and
other electronic communications recorded or stored in a computing device is governed
by the statutory framework.  As with other admissibility issues, where there is
reason to question whether an electronic document meets the statutory
requirements, a
voir dire
should be held and a reasoned determination
made as to its admissibility.  This step is particularly important in the
context of a jury trial:
R. v. Soh
, 2014 NBQB 20 at paras. 26, 32;
R. v. Donaldson
, 2016 CarswellOnt 21760 at para. 3;
R. v. K.M.
,
2016 NWTSC 36 at para. 40; Proof and Progress at 195.

[68]

Pursuant to s. 31.7 of the
Canada Evidence Act
, the statutory
framework does not affect any rule of law relating to the admissibility of
evidence except rules relating to authentication and best evidence.  Although
its requirements must always be met, standing alone they do not determine ultimate
admissibility.  Rather, the admissibility of an electronic document
also
depends on the purpose for which it is tendered and any related general rule of
evidence.  For example, in addition to meeting the statutory criteria, the content
of an electronic document must be legally relevant and it must comply with general
evidentiary rules such as those relating to hearsay, character and opinion
evidence:
K.M.
at para. 23;
Soh
at paras. 41-52; Proof
and Progress at 193.

[69]

In many cases, electronic documents are tendered to prove the truth of a
statement allegedly input into a computer (for example, Mr. Balls alleged
statement that I lit the basement on fire).  In these circumstances, general hearsay
rules apply.  Relevant content might also include information created
mechanically by the computer, such as coded Internet Service Provider
information or date and time stamps (for example, the history timeline shown on
the photographed Facebook messages).  Computer by-product evidence of this
kind is original or real evidence, not hearsay.  Depending on the circumstances,
expert evidence may be required to explain the meaning of the computer-generated
information or the accuracy or reliability of the generating technology,
although, in the absence of cause for doubt, circumstantial evidence or lay
witness testimony is often sufficient.  Regardless, expert evidence is not
required to explain generally how commonplace technologies such as Facebook, text
messaging or email operate if a lay witness familiar with their use can give
such testimony:
K.M.
at paras. 12-15, 40-44;
Soh
at paras. 27-30;
Proof and Progress at 184-186, 188, 198, 211.

[70]

The statutory rule relating to authentication codifies the common law authentication
rule.  The burden of proof is on the tendering party and the threshold is low: is
there evidence, direct or circumstantial, to support a finding that an electronic
document is what the tendering party claims it to be?  If so, the document is
adequately authenticated, although this does not necessarily mean that it is genuine.
That is a question of weight for the fact-finder which often turns on determinations
of credibility:
R. v. Hirsch
, 2017 SKCA 14 at para. 18; Proof and
Progress at 197.

[71]

Section 31.1 of the
Canada Evidence Act
provides:

Authentication of Electronic Documents

31.1
Any person seeking to admit an
electronic document as evidence has the burden of proving its authenticity by
evidence capable of supporting a finding that the electronic document is that
which it is purported to be.

[72]

The statutory best evidence provisions augment the authentication
process. At common law, the best evidence rule requires the tendering party
to produce an original document or the next best available alternative,
primarily because alterations are most readily detectible on an original.  However,
the concept of an original is poorly-suited to electronic documents.  As
Justice Paciocco explains in Proof and Progress, it is not immediately
obvious whether the original is  the actual hard drive containing the code,
the translation of the code that is displayed by the electronic device, a copy
of the file, or the first print out.  Consequently, the statute adopts an
inclusive approach; for framework purposes, an original is any translation of
the computer code in observable form: Proof and Progress at 193, 199-200;
Hirsch
at paras. 22-23.

[73]

Like the common law best evidence rule, the statutory rule is intended
to help ensure that an electronic document accurately reflects the original
information input into a computing device by its author.  The framework
provides alternative methods of satisfying the rule, some of which rely on
statutory presumptions available in the absence of evidence to the contrary.  Section
31.2 provides for proof, direct or circumstantial, of the integrity of an
electronic documents system, proof via secure electronic signature and proof
via printout; s. 31.3, for presumptions of integrity with respect to electronic
documents systems; s. 31.4, for presumptions regarding secure electronic
signatures; and s. 31.5, for consideration of relevant standards,
procedures, usages and practices.  The standard of proof for the prerequisites to
admissibility is the balance of probabilities:
R. v. Oakes
, [1986] 1
S.C.R. 103; Proof and Progress at 202.

[74]

The relevant best evidence provisions are ss. 31.2(1)(a), 31.2(2)
and 31.3(a) and (b):

Application of Best Evidence Rule  Electronic
Documents/Printouts

31.2(1)
The
best evidence rule in respect of an electronic document is satisfied

(a)

on proof of
the integrity of the electronic documents system by or in which the electronic
document was recorded or stored

(2)  Despite subsection (1), in the absence of
evidence to the contrary, an electronic document in the form of a printout
satisfies the best evidence rule if the printout has been manifestly or
consistently acted on, relied on or used as a record of the information recorded
or stored in the printout.

Presumption of Integrity

31.3
For
the purposes of subsection 31.2(1), in the absence of evidence to the
contrary, the integrity of an electronic documents system by or in which an
electronic document is recorded or stored is proven

(a)

by evidence
capable of supporting a finding that at all material times the computer system
or other similar device used by the electronic documents system was operating
properly or, if it was not, the fact of its not operating properly did not affect
the integrity of the electronic document and there are no other reasonable
grounds to doubt the integrity of the electronic documents system;

(b)

if it is established that the electronic
document was recorded or stored by a party who is adverse in interest to the
party seeking to introduce it

[75]

Canadian courts adopt a functional approach to interpretation and
application of the statutory framework.  In
Soh
, Justice LaVigne held
that both screen capture printouts of Facebook messages and photographs of a
computer screen displaying those messages are electronic documents and she conducted
a
voir dire
with respect to their admissibility.  Given the absence of
evidence to the contrary, she found that the electronic documents system on
which the messages were recorded was reliable based on the testimony of a lay witness
who exchanged them with the accused and the investigating officer who captured,
printed and photographed them.  However, she admitted only the screen capture
printouts because, she held, they constituted the best evidence of the accuseds
recorded admissions whereas the photographs of the computer screen did not.

[76]

K.M.
also illustrates the functional approach to the admissibility
of electronic documents.  Like Justice LaVigne in
Soh
, Justice Charbonneau
conducted a
voir dire
to determine the admissibility of a printout of
Facebook messages purportedly exchanged by a witness and the accused and called
up on a computer that belonged to the witnesss sister.  Like Justice LaVigne, she
admitted the printout despite the absence of expert evidence regarding the
integrity of the electronic documents systems in question based on lay witness
testimony and the presumption of integrity in s. 31.3.

[77]

The relevant content of the messages in
K.M.
included both hearsay
(admissions by the accused) and computer by-product evidence (time and date
stamps).  After noting that the lay witness, Mr. Boniface, testified when
he uses Facebook, the dates and times that appear next to the messages
correspond to the actual dates and time in Fort Good Hope, Justice Charbonneau
stated:

[42]      Mr. Boniface may not understand all the ins
and outs of Facebook but he was able to create his account, select his
password, and use Facebook as a means of communication with people, including
K.M.  There is no evidence that he is not capable of recognizing his own
Facebook page.  He testified that the printout is consistent with what was on
the screen when he logged on to his account at his sisters office.

[43]      There is no evidence to the contrary calling into
question the proper functioning of either of these computers (the one Mr. Boniface
used at home during the exchange with K.M. or the one he used to call up the
message chain and have his sister print it).  There is no evidence, or even any
suggestion of tampering by Mr. Boniface, his sister, or anyone else.

[44]      While tampering with
electronic document and hacking into systems does happen, the mere possibility
of that is not sufficient to call into question the authenticity of an
electronic document.  Otherwise, the framework set out in the
Canada
Evidence Act
would be useless: expert evidence would be required in each
case to negate that possibility of tampering or malfunction.

[78]

As Justice Paciocco explained in
Donaldson
, all trial
participants must attend to the requirements of the statutory framework when
electronic evidence is gathered and presented.  While easily met, they are governing
and important for purposes of admissibility:
Donaldson
at paras. 3-4.
After noting the absence of any investigation to determine the account from
which the Facebook messages in question were secured and the vague authentication
evidence, Justice Paciocco held the statutory requirements were not met and declined
to admit the evidence.  In doing so, he stated:

[22]      If you have a case that
is important enough to take the courts time  and you have evidence that is
significant enough that it should be put before a court, then the resources and
attention to demonstrate the admissibility of that evidence should be
committed, both at the investigative stage and at the prosecutorial stage.

[79]

R. v. Bernard
, 2016 NSSC 358, also illustrates the risk of
failure to attend to the statutory requirements.  In
Bernard
, Justice
Gogan declined to admit photographs of Facebook posts purportedly made by the
accused because those requirements were not satisfied.  In doing so, he rejected
the Crowns argument that photographs of the posts were real evidence, holding,
correctly in my view, that the statutory requirements cannot be circumvented simply
by photographing electronic information and noted that:

[40]       no steps were taken
to search the computer of the accused nor was there any attempt to access the
Facebook account of the accused directly, at the police detachment, or anywhere
else.

[80]

Like trial courts, appellate courts adopt a functional approach when
considering the admissibility of electronic documents.  For example, in
Hirsch
,
the Saskatchewan Court of Appeal upheld the judges admission of screen
captures of the accuseds Facebook page in a judge-alone trial although the Crown
did not formally authenticate them under s. 31.1, nor did the judge refer
to the statutory best evidence rule.  Nevertheless, taking into account the
underlying rationale of the statutory rules, the parties trial arguments, the judges
detailed reasoning and the entire body of evidence, the court declined to
interfere with the decision to admit the screen captures, primarily because the
complainant testified that she recognised them as depicting the accuseds
Facebook page, which amounted to s. 31.1 authentication, and because the
surrounding circumstances would have supported application of the s. 31.3(b)
presumption of integrity.  In other words, in
Hirsch
the result on
appeal turned on the fact that the substance, if not the form, of the framework
requirements was plainly satisfied.

Analysis

[81]

The Facebook messages were extremely important Crown evidence.  They
included Mr. Balls alleged admission to setting the fires and a computer-generated
time stamp associating the first message with the time of the Maskell house
fire.  The Crowns closing address, the judges charge and the jurys question all
highlighted the significance of the time stamp and the defence challenged the
authenticity of the messages.  Nevertheless, their admissibility was not
questioned and a
voir dire
was not conducted. Therefore, the judge did
not make a reasoned determination on whether the photographed messages were
admissible and, if so, the permissible use for their computer by-product
content.

[82]

There was good reason to question the admissibility of the photographed messages,
which depended, in part, on compliance with the statutory framework.  However,
it appears no one considered the frameworks requirements at the investigative
or trial stage of the proceedings.  Nor, it seems, was the distinct evidentiary
nature of the text of the messages, on the one hand, and their
computer-generated time stamps, on the other, ever considered.

[83]

In my view, there were several admissibility issues that required
consideration and attention.  The Crown proffered the electronic documents in
photographic form and introduced them through Constable Kiperchuk, who had no
personal knowledge of their source or origins.  Constable Carr, who took the
photographs and presumably operated the police computer system on which the data
was called up, was not called and, while trial counsel could have made admissions
on these matters, he did not.  Nor did trial counsel concede that the
photographs met the applicable admissibility criteria, as he did with respect
to the confession.

[84]

Ms. Lacey was able to recognise the text in the photographs based
on her personal involvement in the exchange of the messages and, therefore, the
statutory authentication requirement in s. 31.1 was met, albeit implicitly.
However, Ms. Lacey also testified she could not remember exact times and she
provided neither direct nor circumstantial evidence specifically concerning the
accuracy of the computer-generated time stamps or the reliability of the computer
systems on which the data was recorded, displayed and photographed.

[85]

This was not a case like
Soh
,
K.M.
and
Hirsch
, where,
in the absence of evidence to the contrary or any suggestion of tampering, Facebook
evidence was admitted based on lay recognition, personal involvement and the
s. 31.3 presumption of integrity.  In contrast, in this case, Mr. Ball
contended a tamperer created the Facebook messages by accessing his account on
a computing device that he did not own and the Crowns only authenticating
witness, Ms. Lacey, was the alleged tamperer.  In addition, unlike
K.M.
,
there was no evidence, direct or circumstantial, regarding the accuracy or reliability
of the computer-generated time stamp.

[86]

On the other hand, this case was, in some respects, similar to
Bernard
,
where Justice Gogan ruled evidence of Facebook posts inadmissible because the
statutory requirements were not satisfied.  Much like the circumstances in
Bernard
,
in this case no one investigated whether the messages were recorded using Mr. Balls
computing device, although police knew he claimed they were faked and was
advancing a defence of false confession.  In addition, here, as in
Bernard
,
at trial the Crown proffered photographs rather than printouts as proof of the
electronic information in question.

[87]

In my view, it is neither necessary nor desirable for present purposes
to determine, at the first instance, whether the photographed Facebook messages
met the statutory best evidence rule on a balance of probabilities.  The same
is true of whether, if so, the computer-generated time stamps were shown to be sufficiently
accurate and reliable for use as evidence of when the messages were sent.  It is
sufficient to say there is a realistic possibility that, properly scrutinized,
the judge may have justifiably excluded or limited the evidentiary use of the photographs.
In these circumstances, in the absence of a clear concession from counsel, the
judge should have made these determinations in the first instance, on a
voir
dire
, in the absence of the jury.  However, he did not, apparently because
all concerned overlooked the need for him to do so.

[88]

At the very least, this was a procedural error.  Mr. Ball was
entitled to be tried on only carefully scrutinized and plainly admissible evidence,
particularly where that evidence was critically important.  Unfortunately, however,
the admissibility of the photographs was not scrutinized and, unlike the circumstances
in
Hirsch
, it is not clear on the record that all prerequisites were established
to the necessary standard.  Accordingly, in my view, Mr. Ball was deprived
of an important procedural protection, which compromised trial fairness and
contributed to what was, overall, a miscarriage of justice.

Did the judge err by permitting the Crown to adduce bad character evidence?

Bad Character Evidence

[89]

As is clear from the foregoing, the trial judge plays a key role in
ensuring that the jury considers only properly admissible evidence.  While counsel
are expected to comply with evidentiary rules, ultimate responsibility for
keeping irrelevant, unduly prejudicial or otherwise inadmissible evidence from
the fact-finding and reasoning process lies with the judge:
R. v. J. (J.)
,
2000 SCC 51 at paras. 1, 28;
R. v. Barton
, 2017 ABCA 216 at paras. 111-112.
 This gatekeeping function requires that a judge vigilantly assess and exclude evidence
that might jeopardize the fundamental fairness of the trial, taking into account
the positions of counsel but unconstrained by them.  One of many contexts in
which the duty may arise involves the presentation of bad character evidence.

[90]

The Crown may not prove that an accused committed an offence by relying
on evidence of his or her bad character.  This is because such evidence can
distract the jury from focusing on the real issues and because propensity
reasoning is generally impermissible.  A jury is not entitled to infer from
evidence of an accuseds bad character that the accused was likely to have
committed the crime charged:
R. v. G.(S.G.)
, [1997] 2 S.C.R. 716 at para. 63;
R. v. Dvorak
, 2001 BCCA 347 at paras. 40-42.  Therefore, the Crown
is prohibited from adducing evidence of an accuseds bad character, subject to
three exceptions: i) where the accuseds character is relevant to a live issue in
the case; ii) where the accused puts his or her character in issue; or iii) where
the evidence is adduced incidentally to proper cross-examination of the accused
on credibility:
G.(S.G.)
at para. 63;
R. v. Lawrence
, 2015
BCCA 358 at paras. 47-51.

[91]

Where an exception to the general prohibition applies and the Crown is
permitted to adduce bad character evidence, a trial judge should typically instruct
the jury that it must not use that evidence to find the accused is the sort of
person who would have a propensity to commit the offence in question.  An
instruction to this effect is mandatory unless it would unduly confuse the jury
because the bad character evidence is central and inextricably linked to the
motive or mechanism of a crime:
R. v. Van Dyke
, 2014 BCCA 3 at paras. 16-21.
 If the judge fails to give a limiting instruction where it is required, that
failure can amount to a reversible error of law:
Dvorak
at paras. 39-45.

[92]

In
Dvorak
, the Crown adduced evidence that the accused was an inveterate
liar when he had not put his character in issue.  While she accepted that Crown
counsel should not have adduced such bad character evidence, Justice Prowse would
not have found the accuseds right to a fair trial was fatally compromised
solely by virtue of its admission because admissible evidence of relevant lies was
also before the jury.  However, she concluded the absence of any limiting
instruction or caution regarding the inadmissible bad character evidence
amounted to a fatal flaw that compromised trial fairness:

[35]      It is not seriously disputed that the Crown led
evidence of Mr. Dvoraks bad character when Mr. Dvorak had not placed
his character in issue.  Although defence counsel did not object to most of
this evidence at the time it was led, it should not have been admitted.  It
placed Mr. Dvorak in the untenable position of having either to ignore
that evidence at his peril, or having to explain it away.  Both options were
risky; he chose the latter.

[45]      In my view, the trial
judge could have offset any damage done by the admission of the irrelevant lies
and the exacerbating effect of the Crown's address had he given them a clear,
sharp warning that they were not entitled to use his lies as evidence that he
was more likely to have committed the offences with which he was charged. In
other words, the trial judge should have instructed the jury that it was not
open to them to infer from the evidence that Mr. Dvorak was a seasoned
liar, that he was also a rapist. I am unable to find anything in the trial
judge's charge which can be interpreted as such a warning. Nor am I able to
conclude that the jury would have understood the limited use they could make of
Mr. Dvorak's propensity for lying in terms of the critical issue of
consent. In my view, this non-direction amounted to misdirection.

[93]

Although the Crown case in
Dvorak
was strong, Justice Prowse did
not apply the curative proviso because the judge failed to warn the jury about
the dangers of the bad character evidence and the importance of not reasoning
from propensity to lie to propensity to commit the offences in issue:

[47]      In my view, this is not an appropriate case for the
application of the curative proviso. Here, not only was the evidence of bad
character improperly led by the Crown, but the trial judge failed to warn the
jury concerning the potential dangers of that evidence and the importance of
not reasoning from propensity to lie to propensity to commit the offences in
issue. In the result, the fairness of the trial was compromised. There is a
risk that the accused was convicted for the wrong reasons; that is, because he
was a "liar and a jerk", rather than because the Crown had established
lack of consent on the part of the complainant.

[48]      It is not without
misgivings that I come to this conclusion because, in my view, the case for the
crown was a strong one.  But I cannot say that the case was so strong that the
verdict would necessarily have been the same in the absence of error.

Analysis

[94]

While this issue was not raised by the appellant, it arises on the
record and was addressed in oral submissions at the hearing.  In my view, the
judge erred in permitting the Crown to adduce evidence from Ms. Lacey that
Mr. Ball assaulted her and, having done so, in failing to warn the jury
not to engage in propensity reasoning with respect to Mr. Balls alleged
acts of domestic violence.  This bad character evidence was untethered to a live
issue when the Crown adduced it.  Nor was it covered by any other exception to
the general prohibition which prevents the Crown from adducing such evidence.

[95]

Like Mr. Dvorak, Mr. Ball was placed in the untenable position
of either having to ignore the bad character evidence or try to explain it away
before the jury.  Like Mr. Dvorak, Mr. Ball chose the latter path. This
was not a choice he should have faced.  It meant that he had to deal with
irrelevant and damning allegations that he pushed, grabbed and choked Ms. Lacey,
as well as meet the charges that he set the fires at the Maskell property.  It created
a risk that the jury might infer from the evidence that Mr. Ball was an
abusive partner that he was also a malicious arsonist.

[96]

Regardless of whether trial counsel objected, the judge should have
stopped Crown counsel when he elicited evidence from Ms. Lacey that Mr. Ball
assaulted her.  On its face, this evidence was irrelevant, inadmissible and prejudicial
to Mr. Ball.  If there was an arguable basis for the Crowns apparently
improper questions, the judge should have canvassed it with counsel in the
absence of the jury.  Instead, he admitted the evidence without comment or
intervention.

[97]

The damage was not offset by an appropriate warning in the judges charge
to the jury.  On the contrary, it may have been exacerbated.  Although he did
not warn the jury not to consider Ms. Laceys allegations that Mr. Ball
assaulted her, he did warn them not to consider Mr. Balls allegations
that Ms. Lacey assaulted him when assessing the reliability of her
testimony because those allegations were not put to her in cross-examination.  This
may have reminded the jury that there were competing allegations of domestic
violence.  Regardless, the charge did not include the necessary and important
warning to the jury not to engage in propensity reasoning in determining
whether the Crown had proved the arson charges.  The latter non-direction amounted
to misdirection.

[98]

In my view, the admission of the bad character evidence and the lack of
appropriate warning, both legal errors, compromised trial fairness.  As in
Dvorak
,
there is a risk that the accused was convicted for the wrong reasons; in this
case, because he was an abusive partner, rather than because the Crown proved
beyond a reasonable doubt that he set the fires.  Although I see that risk as
minimal, when these errors are considered together with other trial
irregularities, I conclude they also contributed to an overall miscarriage of
justice.

Is the fresh evidence admissible?

[99]

Crown counsel concedes that most of the fresh evidence is admissible for
the limited purpose of assessing Mr. Balls allegation of ineffective
assistance.  However, in his submission, the fresh evidence that Eric Lacey worked
as a volunteer firefighter at the time of the fires is obviously inadmissible and
should be rejected summarily because it is irrelevant to any issue on the appeal.

[100]

Subsection 683(1) of the
Criminal Code
authorizes this Court to
receive fresh evidence where it is in the interests of justice to do so.  Pursuant
to the test articulated in
Palmer v. The Queen
, [1980] 1 S.C.R. 759, in
addition to the requirement that fresh evidence comply with general rules of
evidence, the relevant criteria considered on an application to adduce fresh
evidence on appeal are as follows (at 775):

(1)        The evidence should generally not be admitted if,
by due diligence, it could have been adduced at trial provided that this
general principle will not be applied as strictly in a criminal case as in civil
cases: [citation omitted];

(2)        The evidence must be relevant in the sense that it
bears upon a decisive or potentially decisive issue in the trial;

(3)        The evidence must be credible in the sense that it
is reasonably capable of belief; and

(4)        It must be such that
if believed it could reasonably, when taken with the other evidence adduced at
trial, be expected to have affected the result.

[101]

The
Palmer
test applies where fresh evidence is directed to issues decided at the trial
level.  Its due diligence criterion promotes finality and order in the
litigation process by encouraging parties to put forward their best available
case at trial:
R. v. Hamzehali
, 2017 BCCA 290 at para. 35, quoting
from
R. v. Wolkins
, 2005 NSCA 2.

[102]

Where a
miscarriage of justice is alleged, the applicable procedure is as described in
R. v. Stolar
, [1988] 1 S.C.R. 480. The fresh evidence application should be
heard and, unless the fresh evidence is obviously inadmissible, the court
should reserve judgment on the application.  If the court ultimately determines
that the fresh evidence could reasonably have affected the result, it should
admit the fresh evidence and allow the appeal.  On the other hand, if the court
determines that the fresh evidence could not reasonably have affected the
result, it should dismiss both the fresh evidence application and the
miscarriage of justice ground of appeal.

[103]

However, where ineffective assistance of counsel is a ground of appeal, the
Palmer
test and the
Stolar
procedure are modified.  In such cases,
the appellate court is asked to admit fresh evidence for the purpose of considering
an issue that was not considered below:
R. v. Aulakh
, 2012 BCCA 340 at para. 59.
 In these circumstances, the fresh evidence relates to the integrity of the
trial process itself, not to a substantive factual or legal issue decided at the
trial level.  Accordingly, as Justice Smith explained in
Aulakh
, the due
diligence criterion is relaxed and the court may admit the fresh evidence in
the interests of justice for the limited purpose of assessing the professional
incompetence allegations:

[64]      Thus, fresh evidence
directed to a new issue on appeal relating to the integrity of the trial
process (rather than a substantive issue adjudicated at trial) will be
admissible for the limited purpose of assessing the allegation of ineffective
representation of counsel if it: (i) complies with the rules of evidence;
(ii) is relevant to the new issue; and (iii) is credible. If the
fresh evidence also relates to a substantive factual or legal issue adjudicated
at trial, the
Palmer
due diligence criteria may be relevant. It goes
without saying that the fourth
Palmer
criterion, the expectation that
the fresh evidence would affect the result, is addressed by the parallel
prejudice component of the test for ineffective assistance of counsel.

[104]

The
modified
Palmer
test and
Stolar
procedure apply on a
case-sensitive basis whenever fresh evidence is directed to matters that go to
the integrity of the trial process or to a request for an original remedy:
Hamzehali
at para. 35.

[105]

In my view,
all of the fresh evidence is admissible for the purpose identified by Crown
counsel.  It generally complies with the rules of evidence, it is relevant to the
assessment of counsels performance and potential prejudice, and it is
sufficiently credible and reliable to meet the modified
Palmer
test.  The
hearsay evidence that Eric Lacey worked as a firefighter in 2013, confirmed by
the newspaper clipping, relates to whether the defence theory that Ms. Lacey
fabricated the Facebook messages was doomed to fail because she could not possibly
have known about the Maskell house fire when the messages were sent.

Has Mr. Ball established that trial counsel provided ineffective
assistance?

Ineffective Assistance of Counsel

[106]

An accused
who is represented by counsel is entitled to receive effective legal
assistance.  Our adversarial system operates on the premise that competent partisan
advocacy will best expose the truth of a criminal allegation.  Effective
representation ensures that the prosecution case is tested and the defence case
is advanced by a knowledgeable and skilled advocate performing these functions
adequately.  It also enhances the adjudicative fairness of the process by ensuring
that the accused receives the full benefit of all available procedural
protections:
R. v. Joanisse
, [1995] O.J. No. 2883 (C.A.) at paras. 65-66.
Both contribute to the fairness of a trial.

[107]

A claim of
ineffective assistance of counsel has two distinct components, performance and
prejudice.  To succeed, the appellant must establish both that counsels acts
or omissions were incompetent (performance) and that, as a result, a
miscarriage of justice occurred (prejudice).  Professional incompetence is
assessed on a standard of reasonableness and it must be proven on a balance of
probabilities.  A miscarriage of justice resulting from professional incompetence
must also be proven on a balance of probabilities and it may take many forms:
R.
v. G.D.B.
, 2000 SCC 22 at paras. 26-28;
R. v. Dunbar
, 2003 BCCA
667 at para. 34.

[108]

The bar
for establishing professional incompetence is high and surpassing it is challenging.
It is strongly presumed that counsels conduct fell within the wide range of
reasonable professional assistance, deference will be accorded to counsels
strategic and tactical decisions and the wisdom of hindsight has no place in
the analysis.  Nevertheless, unreasonable acts or omissions by counsel might
include a failure properly to challenge the Crowns case, bring a necessary
application or make duly diligent efforts to adduce relevant defence evidence,
any of which could amount to assistance so deficient that it was ineffective.
Alternatively, unreasonable acts or omissions might include representing the
accused while in a compromised state or failing to comply with instructions, both
of which could deny real assistance altogether and thus taint the adjudicative
process by which the verdict was reached:
Aulakh
at paras. 46-48;
G.D.B.
at paras. 27, 29.

[109]

On appeal,
a court should analyze the prejudice component of an ineffective representation
claim before the performance component.  If prejudice is not proven to the
requisite standard, the court should typically end the analysis.  This is
because grading counsels performance is not the object of the exercise.  As
Justice Major pointed out in
G.D.B.
, that is a matter for the self-governing
body of the legal profession, not the court:
G.D.B.
at paras. 27,
29;
Dunbar
at paras. 24-25.

[110]

The
prejudice component of an ineffective assistance claim is established where the
appellant proves that professional incompetence is linked to a miscarriage of
justice.  A miscarriage of justice can result where there is a reasonable
probability that the outcome of the proceedings below would have been different
but for the errors made by counsel.  In
Joanisse
, Justice Doherty
explained that a reasonable probability is a probability which is sufficient to
undermine confidence in the reliability of the outcome and it lies somewhere
between a mere possibility and a likelihood:
Joanisse
at para. 82.  Alternatively,
a miscarriage of justice may result where the outcome was reached through an
unfair process, regardless of the reliability of the outcome.  In other words,
professional incompetence may result in a miscarriage of justice by reason of
procedural unfairness alone:
G.D.B.
at para. 28;
Dunbar
at para. 26.

Analysis

[111]

In my
view, Mr. Ball has established the prejudice component of the ineffective
assistance claim on a balance of probabilities.  The confession and the
Facebook messages were the primary pillars of the prosecution.  If trial
counsel could and should have approached the false confession defence or the
Facebook messages as Mr. Ball claims, the force of the prosecution
evidence would have been potentially muted and, but for his errors, there is a
reasonable probability that the outcome of the trial would have been different.
 In other words, the necessary link exists between the alleged professional
incompetence and a miscarriage of justice.  The real question is whether Mr. Ball
has established on a balance of probabilities that trial counsel was professionally
incompetent.

[112]

I am not
persuaded that professional incompetence is established.  Although other
counsel might have done more or otherwise, Mr. Ball has not proved that trial
counsel mounted or presented the false confession defence inadequately, nor has
he proved that his treatment of the Facebook message evidence was so flawed that
it fell outside the wide range of reasonable professional assistance.  That
being so, he has not has surpassed the high bar set for proving a claim of
ineffective assistance by counsel.

[113]

Trial
counsel elicited extensive testimony from Mr. Ball regarding his poor
mental health and his reasons for purportedly confessing falsely.  His testimony
regarding his mental health was both uncontested and corroborated.  In
hindsight, given the judges sceptical remark on his self-report, it may well
have been desirable to present additional information from Mr. Balls
clinical records confirming the details of his psychiatric problems.  However, the
judges remark was unpredictable and, in my view, confirmatory evidence was not
required to advance the false confession defence adequately, nor was it
unreasonable for trial counsel not to adduce it.  In the circumstances, trial
counsels choice to rely on Mr. Balls testimony regarding his poor mental
health, as corroborated by Ms. Lacey and the police, is entitled to
deference.

[114]

The
judges charge on the false confession defence, while rather brief, was not
inadequate.  It follows that trial counsel was not obliged to object after it
was delivered.  As to Mr. Balls contention that trial counsel should have
located and adduced expert evidence relating the reliability of his confession
to his poor mental health, I find it striking that there was no fresh evidence
tendered to this effect.  Contrary to Mr. Balls submission, while Dr. Ferguson
did describe him as a fragile and vulnerable young man, lacking in coping
skills under stress and impaired by anxiety and dependent personality traits,
he did
not
relate those behavioural characteristics and vulnerabilities to
what Mr. Ball told police when he made his confession.  Nor, so far as I
am aware, has any other psychiatric expert.  In my view, one can hardly fault trial
counsel for failing to locate and adduce evidence that does not demonstrably
exist.

[115]

I do not
accept that trial counsel failed to appreciate the significance of the Facebook
messages.  Although, in my view, he understated it in his affidavit filed on
the fresh evidence application, his conduct at trial reflects a keen
appreciation.  As Crown counsel points out, trial counsel fully aired
credibility issues regarding Ms. Lacey and attempted to demonstrate that
she could have fabricated the Facebook messages by hacking Mr. Balls
account via use of his password.  In addition, in his closing address trial
counsel urged the jury to disregard Ms. Laceys venomous testimony and
emphasized her prior access to Mr. Balls Facebook account.  All of these
steps were designed forcefully to challenge the genuineness of the messages.
All were reasonable and diligent.

[116]

Nor do I
accept that trial counsel unreasonably failed to investigate the authenticity
of the Facebook messages.  The fact that the messages do not appear on Mr. Balls
Facebook account is of no moment.  He told police that he deleted them.  The
issue, if any, requiring investigation was the computing device on which the
messages were recorded.  That was a matter for police investigation.  It was
not unreasonable for trial counsel not to encourage any such investigation when
he was not and could not be certain of its eventual outcome.

[117]

Of greater
concern is trial counsels apparent failure to recognize and address the potential
admissibility issues in connection with the photographed Facebook messages.  That
was an oversight.  Nevertheless, in my view, an oversight on a technical statutory
point of evidence does not necessarily equate to professional incompetence
amounting to ineffective representation.  Bearing in mind the high bar that
applies, the fact that much of the salient jurisprudence post-dates the trial,
the need to avoid the wisdom of hindsight and the wide range of reasonable
professional assistance I conclude that, while unfortunate, trial counsels
oversight did not rise to the level of professional incompetence.  My
conclusion in this regard is buttressed to some extent by the fact that the
police, Crown counsel and the judge apparently all experienced the same oversight.

[118]

I would
not give effect to this ground of appeal.

Has Mr. Ball established a miscarriage of justice?

Miscarriage of Justice

[119]

Pursuant to s. 686(1)(a)(iii) of the
Criminal Code
, an
appeal from conviction may be allowed where there was a miscarriage of justice.
In
R. v. Davey
, 2012 SCC 75, Justice Karakatsanis described a miscarriage
of justice for the purposes of s. 686(1)(a)(iii) by quoting from
R. v.
Khan
, 2001 SCC 86 and
R. v. Wolkins
, 2005 NSCA 2:

[
50
]

In his concurring
opinion in
R. v. Khan
, 2001 SCC 86
,
[2001] 3 S.C.R. 823 (S.C.C.)
, LeBel J. considered the
scope of the miscarriages of justice contemplated by s. 686(1)(
a
)(iii).
He concluded, at para. 69, that when considering whether an irregularity
that occurred during a trial rises to the level of a miscarriage of justice,
[t]he essential question in that regard is whether the irregularity was severe
enough to render the trial unfair or to create the appearance of unfairness.

[
51
]

In
R. v. Wolkins
,
2005 NSCA 2
,
229
N.S.R. (2d) 222 (N.S. C.A.)
, at para. 89
,
Cromwell J.A. provided a helpful summary of the two types of unfairness
contemplated within the meaning of miscarriage of justice under s. 686(1)(
a
)(iii):

the courts have generally grouped
miscarriages of justice under two headings.  The first is concerned with
whether the trial was fair in fact.  A conviction entered after an unfair trial
is in general a miscarriage of justice.  The second is concerned with the
integrity of the administration of justice.  A miscarriage of justice may be
found where anything happens in the course of a trial, including the appearance
of unfairness, which is so serious that it shakes public confidence in the
administration of justice.  [Citations omitted.]

[120]

In
Khan
, Justice LeBel explained that, in most cases, the whole
of the circumstances must be weighed in determining whether a trial was unfair,
in reality or in appearance.  Emphasizing that an accused is not entitled to a
perfect trial, he acknowledged that minor irregularities will inevitably occur
in legal proceedings.  The critical question, however, is whether the irregularity
in issue rendered the trial unfair or created an appearance of unfairness, the
latter of which is assessed by asking if the irregularity would taint the
administration of justice in the eyes of a reasonable and objective observer.
He went on to state that, while there is no strict formula for determining a
miscarriage of justice, there are several elements that provide helpful
reference points:

[75]      First, one should ask whether the irregularity
pertained to a question which was, in law or in fact, central to the case
against the accused.  Thus, an irregularity which is related to a central point
of the case is more likely to be fatal than one concerning a mere peripheral
point

[76]      Second, the court of appeal should consider the
relative gravity of the irregularity.  How much influence could it have had on
the verdict? ...

[77]      When the court considers the gravity of the error,
it should also consider the possible cumulative effect of several
irregularities during the trial

[78]      Third, one should be mindful of the type of trial
during which the error has occurred.  Was it a trial by jury or by a judge
sitting alone?  Sometimes, irregularities can have a more severe impact on the
fairness of the trial when they occur during a trial before a judge and a jury

[79]      Fourth, and related, is the possibility that the
irregularity may have been remedied, in full or in part, at the trial

[84]      Fifth, one must keep in mind that what matters most
is the
effect
of the irregularity on the fairness of the trial and the
appearance of fairness.  Therefore, it will not be a mitigating factor that the
irregularity did not result from a deliberate act by the Crown, the judge, or
one of the court officials

[85]      Sixth, the attitude of
defence counsel if and when he was confronted with the irregularity may have an
impact.  Therefore, if defence counsel had an opportunity to object to the
irregularity and failed to do so, this militates for a finding that the trial
was not unfair.  Of course, this is not absolutely determinative, as a trial
can be declared unfair even if defence counsel failed to object.  [Citations
omitted, emphasis in original].

Analysis

[121]

In my
view, the cumulative effect of the errors and irregularities in Mr. Balls
trial rendered it unfair and resulted in a miscarriage of justice.  Near the
trials outset, key Crown evidence was admitted without its questionable
admissibility having been tested.  The origin of that evidence was not fully
investigated, it was introduced in photographic form through a witness with no
personal knowledge and it was immediately provided to the jury, with whom it
remained throughout the entire proceeding.  As the trial progressed, Crown
counsel elicited irrelevant and prejudicial evidence that Mr. Ball was an
abusive partner, no one intervened and the judge did not warn the jury to
disregard it.  At the end of the trial, the judge expressed undue scepticism
regarding Mr. Balls self-report of poor mental health, which condition Mr. Ball
relied upon in advancing his defence of false confession.

[122]

The
charges were serious and the jury upon whom the appellant relied required considerable
assistance from the court and from counsel.  Although none of the errors and
irregularities resulted from deliberately improper acts, all impacted trial
fairness and, in my view, were largely borne of insufficient vigilance to
ensure its protection.  Although the Crown case was undoubtedly strong, I
cannot say it was so strong that the verdict would necessarily have been the
same in the absence of these errors and irregularities.

Conclusion

[123]

I would admit the fresh evidence, allow the appeal, set aside the conviction
and order a new trial.

The
Honourable Madam Justice Dickson

I AGREE:

The Honourable
Madam Justice D. Smith

I AGREE:

The Honourable
Madam Justice Fisher