WARNING

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

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

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    that could identify the victim or a witness shall not be published in any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

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s.
    22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

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

(4)      An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: CITATION: R. v. Dowholis, 2016 ONCA 801

DATE: 20161031

DOCKET: C58278

Doherty, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joshua Dowholis

Appellant

Jill R. Presser and Andrew Menchynski, for the appellant

David Finley and Michael Perlin, for the respondent

Heard: May 26, 2016

On appeal from the conviction entered on September 27,
    2013 and the sentence imposed on January 7, 2014 by Justice Faye McWatt of the Superior
    Court of Justice, sitting with a jury.

Benotto J.A.:

[1]

The appellant was convicted of three counts of aggravated sexual assault
    and two counts of forcible confinement. He challenges the convictions on two
    broad grounds. First, the appellant argues that the trial judge should not have
    allowed the admission of evidence from the appellants doctor, and also erred
    in not providing the jury with instructions on similar fact reasoning,
    discreditable conduct evidence, or a
Vetrovec
warning. Second, the
    appellant submits that trial fairness or the appearance of fairness was
    undermined by the conduct the jury foreperson, who participated in radio
    broadcasts discussing the trial.

[2]

For the reasons that follow, I have concluded that the conduct of the
    juror created a reasonable apprehension of bias such that a new trial should be
    ordered. It will therefore not be necessary to address the other grounds of
    appeal or the sentence appeal.

A.

FACTS

[3]

The appellant, an HIV-positive man with an undetectable viral load, was
    charged with four counts of aggravated sexual assault and two counts of
    forcible confinement in relation to four separate complainants, all of whom
    were men. It was admitted that the appellant met each of the four complainants
    at a bathhouse in Toronto. They smoked crystal meth together and returned to the
    appellants home. The appellant admitted engaging in consensual sexual activity
    with two of the complainants and contemplating sexual activity with the two
    other complainants, whom he admitted restraining until they asked to be
    released.

[4]

At trial, the issues included whether sexual activity took place (with
    respect to two of the complainants) and consent.

(1)

The need for juror impartiality was addressed at the outset of the trial
    and the trial judge instructed the jurors about their conduct throughout the
    proceedings

[5]

The issue of juror impartiality was addressed before the jury was
    selected. The trial judge told the jury panel: It is most important that every
    juror be impartial. Trial counsel requested and was granted the right to
    challenge the prospective jurors for cause on the basis of potential bias
    against homosexuals. Every potential juror was asked the following question:

As Her Honour will tell you, in deciding whether or not the
    prosecution has proven the charges against an accused, a juror must judge the
    evidence without bias, prejudice or partiality. Sometimes people have a bias
    against a certain group such that theyre unable to fulfill this duty of a
    juror. The purpose of my question is to determine whether you are able to serve
    as a juror in this case. Do you have a bias against homosexuals?

[6]

The juror at issue in this appeal answered: I do not. He then took the
    oath to well and truly try the case and became Juror #12. The Registrar read
    the indictment to the jury and, as in all jury trials, said: [F]or his trial
    he hath put himself upon his country, which country you are. Your charge
    therefore is to inquire whether he be guilty or not guilty and hearken to the
    evidence.

[7]

The trial began on September 10, 2013 with the trial judges opening
    instructions to the jury. She told them that they were the judges of the facts.
    She told them not to discuss the case or give any information about it to
    anyone, including friends, family, or fellow workers. She said: If anyone else
    approaches you to discuss any part of the case, please tell them that you
    cannot discuss it with them. The trial judge also added this:

To make you feel confident that what happens in your jury room
    will always be private and secret and to encourage frank discussion with your
    fellow jurors, Parliament has made it an offence for any juror to reveal
    anything about what happens in the jury room even after the trial is over.

[8]

The trial judges charge to the jury at the conclusion of the evidence
    reiterated that the jurors were judges. She also told them that punishment had
    no place in their discussions and was not part of their job. They were told to
    choose a foreperson to guide their discussions and announce the verdict in
    court. The foreperson was responsible to act as the chairperson of the
    deliberations, and be firm in leadership, but fair to everyone. Juror #12 was
    selected as foreperson.

[9]

The jury deliberated for two days on September 26 and 27, 2013. On
    September 27, 2013, the foreperson announced the guilty verdict on the forcible
    confinement charges and three of the sexual assault charges. The appellant was
    acquitted of the fourth sexual assault charge.

(2)

Juror #12 appeared twice on a radio show and discussed the case.

[10]

Juror #12 was the producer of a radio programme called The Dean
    Blundell Show. The Crown aptly characterized the participants on the programme
    as shock jock  a term usually used to denote a disc jockey on a talk-radio
    show who expresses opinions in a deliberately offensive or provocative way.

[11]

On September 20, 2013, while the trial was underway, the juror appeared
    on the programme and spoke with hosts Dean Blundell and Billie Holiday. They
    all made derogatory comments about sexual activity between men. The three
    laughed and mocked the jurors oath. The juror returned to the program on
    September 30, 2013, after the trial had ended and the jury had found the
    appellant guilty. There was more laughter about the participants in the trial,
    more derisive comments about the lifestyle of the participants, and discussions
    about the jurys deliberations and the sentence likely to be imposed.

(3)

After the Programmes

[12]

On October 1, 2013, the Crown and officer-in-charge contacted the radio
    show to advise the juror that they were on their way to speak to him. The Crown
    also emailed him. They met with the juror that day and provided him with a copy
    of s. 649 of the
Criminal Code
, R.S.C. 1985, c. C-46.
[1]

[13]

The appellant sought an order for the disclosure of all information
    surrounding the Crowns discovery of the jurors on-air appearances regarding
    jury duty, and all contact between Crown counsel, police, and the juror. The
    applicant alleged that Juror #12s actions undermined his
Charter
right to a fair trial, and sought an inquiry by the trial judge to determine
    the appropriate remedy and to create a record for consideration on appeal. The
    trial judge determined that she was
functus
and thus had no
    jurisdiction. She indicated that the matter should be dealt with before this
    court.

B.

ISSUES ON APPEAL

[14]

Issues were raised that I do not address: whether the juror was in fact
    partial and whether the verdict was in fact tainted by his conduct. These
    issues are irrelevant in light of what I perceive to be the determinative issue
    in the appeal: the
apprehension
of bias.

C.

Position of the Parties

[15]

The appellant submits that the jurors conduct was homophobic,
    demonstrated actual bias, and created a reasonable apprehension of bias such
    that a new trial is necessary.

[16]

The respondent submits that there was no bias in fact and points to the
    many indicia of this: the procedural safeguards, the positive evidence of an
    unbiased approach, including the fact that the jury returned a not guilty
    verdict on one of the counts, and the lack of evidence that the jury engaged in
    impermissible reasoning. The respondent further submits that there could be no
    apprehension of bias because the reasonable observer would know not to take
    shock jock radio seriously. In fairness to the Crown, there was no attempt to
    condone the statements made during the broadcasts. Instead, the submission was
    that they did not rise to the high level required to establish either bias or
    apprehension of bias.

D.

Analysis

[17]

It is presumed that jurors are impartial. The presumption can be
    rebutted if a reasonable observer would conclude that the jurors conduct made
    it more likely than not that the juror, whether consciously or unconsciously,
    would not decide fairly.

(1)

The presumption of impartiality

[18]

A juror is a judge. There is a strong presumption of judicial impartiality
    and a heavy burden on a party who seeks to rebut this presumption. Judicial
    impartiality has been called the key to our judicial process:
Wewaykum
    Indian Band v. Canada
, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59. The
    presumption of impartiality anchors public confidence in the integrity of the
    administration of justice.

[19]

In order to rebut the presumption of impartiality, a stringent test has
    been developed by the Supreme Court of Canada. It was first articulated by de
    Grandpré J. in his dissenting reasons in
Committee for Justice and Liberty
    v. National Energy Board
, [1978] 1 S.C.R. 369, at p. 394, and has been
    repeatedly endorsed:

[T]he apprehension of bias must be a reasonable one held by
    reasonable and right minded persons, applying themselves to the question and
    obtaining thereon the required information. [T]hat test is "what would an
    informed person, viewing the matter realistically and practically  and having
    thought the matter through  conclude. Would he think that it is more likely
    than not that [the decision-maker], whether consciously or unconsciously, would
    not decide fairly."

[20]

In his reasons in
R. v. S. (R. D.)
, [1997] 3 S.C.R. 484, Cory
    J. explained, at para. 111, that the test set down by de Grandpré J. contains
    a two-fold objective element: the person considering the alleged bias must be
    reasonable, and the apprehension of bias itself must also be reasonable in the
    circumstances of the case. The determination is also fact-specific:
Wewaykum
,
    at para. 77. The analysis contemplates a hypothetical observer who is informed
    of all the facts. It does not depend upon the views or conclusions of the
    litigant or the accused.

[21]

In order to maintain public confidence in the administration of justice,
    the appearance of judicial impartiality is as important as the reality:
R.
    v. Bow Street Metropolitan Stipendiary Magistrate, Ex p. Pinochet Ugarte (No.
    2)
(1999), [2000] 1 A.C. 119 (U.K. H.L.). At issue is the impression that
    would be given to other people. The appearance of impartiality was emphasized
    in
Weywakum
, at para. 66:

[W]here disqualification is argued, the relevant inquiry is not
    whether there was
in fact
either conscious or unconscious bias on the
    part of the judge, but whether a reasonable person properly informed would
    apprehend that there was. [Emphasis in original.]

[22]

The Canadian system starts on the presumption that jurors are capable of
    setting aside their views and prejudices and acting impartially. There are
    safeguards in place to address potential sources of juror partiality. In
R.
    v. Find
, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 107, this was
    explained as follows:

[T]he safeguards of the trial process and the instructions
    of the trial judge are designed to replace emotional reactions with rational,
    dispassionate assessment. Our long experience in the context of the trial
    of other serious offences suggests that our faith in this cleansing process is
    not misplaced. The presumption of innocence, the oath or affirmation, the
    diffusive effects of collective deliberation, the requirement of jury
    unanimity, specific directions from the trial judge and counsel, a regime of
    evidentiary and statutory protections, the adversarial nature of the
    proceedings and their general solemnity, and numerous other precautions both
    subtle and manifest  all collaborate to keep the jury on the path to
    an impartial verdict despite offence-based prejudice.

[23]

Although these safeguards were in place here, it is my view that a
    reasonable person would conclude that they failed.

(2)

The presumption is rebutted

[24]

The high threshold to rebut the presumption of impartiality is met here as
    a result of three related factors: the remarks made about the participants in
    the trial; the remarks made about the trial process; and the failure of the
    trial safeguards. A reasonable person, who was made aware of these interrelated
    issues and had thought the matter through, would perceive that the juror, whether
    consciously or unconsciously, would not decide fairly. In other words, a
    reasonable apprehension of bias existed that disqualified the decision-maker.

(a)

Remarks about the participants

[25]

The juror participated in public discussions that ridiculed the appellant
    and the complainants. He expressed disgust at their behaviour and lifestyles,
    particularly their sexual practices, drug use, and promiscuity. During the
    trial he described the courtroom as having whores all over the place. He
    summarized the content of the proceedings with disgust, saying theres a
    certain segment of our population that will do similar things to that but
    instead of going to bed, they say, you know, I should go to a gay bathhouse and
    have sex with 600 other people. The response from the co-hosts of the radio
    show was that this was gross. The juror continued to mock the participants in
    the trial as gross, and laughed as the co-host repeatedly referred to the
    appellant as a dirt ball and dirt bag.

[26]

The juror impersonated the appellant on a pretend phone call with his
    mother to tell her about being sentenced to a lengthy prison term. He mockingly
    said: I finally got a steady job, yay. Im going straight to the showers. The
    juror agreed with one of the hosts when she said a prison sentence would be
    like a cruise for the appellant. He then agreed with the other host when he congratulated
    the juror for having damned a man to five of the greatest years of his life.
    In fact, the juror responded by saying: Ive done my job, my civic duty.

[27]

The juror referred to the complainants as not the smartest people in
    the world. He made multiple joking references to pink discharge, which referred
    to the evidence of one of the complainants.

[28]

The Crown suggests that it is relevant that the juror did not initiate
    the conversations. The recordings, however, demonstrate his willing
    participation. There is much laughter and clapping. He was part of the show and
    part of the jokes. He hinted at the content of the trial and spurred on the
    hosts even before the trial was over.

[29]

The tone and content of the conversations reveal prejudicial attitudes
    towards the lifestyles of some gay men. The issue of prejudice against gay men
    was a concern from the outset of trial. That is why trial counsel requested the
    challenge for cause. The Crown admits as much, noting in its factum that the
    comments can reasonably be construed as expressing negative and stereotypical
    views regarding homosexual men.

(b)

Remarks about the trial process

[30]

The juror participated in jokes about the jurors oath, and laughed when
    one of the hosts said the jurors fingers were crossed while taking it. He made
    jokes about a hung jury and smelling the evidence.

[31]

The juror referred to the offences at issue as good old aggravated
    sexual assault, then said it was all men, all the time. This was greeted
    with laughter and applause and a host responded that [they] got so lucky with
    this one.

[32]

During the trial, the juror twice raised the question with Psychic
    Nikki, a guest on the radio show, of whether the verdict would be innocent or
    guilty. He asked her, can you give me a prediction on how this might go?

(c)

Failure of trial safeguards

[33]

The Crown submitted that the attitudes demonstrated by the juror do not
    rise to the level of apprehension of bias, in part because of the numerous
    safeguards put in place to ensure impartiality. Here, the jurors own words
    show that many of the safeguards were not effective; the challenge for cause
    process, the oath, and the trial judges explicit instructions were ignored.

[34]

In response to the challenge for cause, the juror said he had no bias
    toward homosexuals. The challenge process highlighted the fact that homophobia
    was a concern for the court. The juror would have been aware of this. Yet, he
    participated in public jokes that targeted gay men.

[35]

The juror was advised that he could not talk about deliberations. Yet he
    revealed that the jury had to determine issues regarding the appellants HIV
    disclosure and whether the witnesses were credible because they were
    boneheads. He also commented specifically on deliberations, saying: we kind
    of determined that though these people are not the smartest individuals in the
    worldthey probably couldnt hold up a fake story because the whole court
    proceeding took two years to get to this point. So if they  had made it up
    they would have cracked at some point with all the questioning they had to do
    and testimonials and stuff like that.

[36]

The Crown submitted that another safeguard that preserves the integrity
    of the verdict despite concerns about a single juror is that the juror is but
    one of twelve who had to reach a unanimous decision. This may be true, but
    confidence that this safeguard was effective is diminished because of the fact
    that this juror was the foreperson of the jury. He was charged with directing the
    discussions of the other jurors and acting as the spokesperson for the jury.

[37]

The Crown also submitted that the solemnity of the trial acts as a
    safeguard, as stated in
Find
. Again, this seems to have been lost on
    the juror. He created the impression that  far from taking his role seriously
    the trial was a source of material for his and the publics obscene
    entertainment.

(d)

Combined Effect of these Factors

[38]

Juror #12, the foreperson, ignored the trial judges instructions not to
    discuss the case or the jurys deliberations; he publicly demeaned and
    ridiculed the appellant and the complainants; he condemned their lifestyle and
    sexual practices  the events at the core of the appellants trial; he mocked
    the jurors oath; and, in all, he demonstrated a lack of respect for the
    participants and justice system.

[39]

The Crown submitted that a reasonable person would know that the juror was
    playing a role  that he was just joking. This submission presumes that jokes
    of this type are innocuous. They are not. They have a destructive side. They
    target marginalized groups often based on race, gender, gender identity, or
    sexual orientation. They promote  and risk normalizing  negative stereotyping.
    They are demeaning, malicious, hostile, and encourage prejudice.

[40]

A listener may very well diminish the significance of banter aired on a shock
    jock programme. However, the hypothetical reasonable person here would not be just
    assessing the comments of a shock jock. The reasonable person would be
    assessing the comments of a juror  a juror repeatedly instructed about
    impartiality, the seriousness of his role in connection with serious sexual
    assault offences that carry severe penalties. The appellant was a gay man and
    the jurors comments related to the behaviour and sexual practices that were
    directly before him in his role as a judge.

[41]

I recognize that a reasonable observer would not be merely identifying
    bias, but rather a bias that would likely affect the jurors ability to decide
    fairly. In this regard, the type of bias is relevant. Some types of bias may be
    easier to set aside than others. Pre-trial publicity about a case may be easier
    for a juror to ignore than  for example  an ingrained attitude about certain
    classes of persons.

[42]

This was recognized by Doherty J.A. when he discussed racial bias in the
    context of a challenge for cause in
R. v. Parks
, 15 O.R. (3d) 324
    (C.A.), at para. 59:

In deciding whether the post-jury selection safeguards against
    partiality provide a reliable antidote to racial bias, the nature of that bias
    must be emphasized. For some people, anti-black biases rest on unstated and
    unchallenged assumptions learned over a lifetime. Those assumptions shape the
    daily behaviour of individuals, often without any conscious reference to them.
    In my opinion, attitudes which are engrained in an individual's subconscious, and
    reflected in both individual and institutional conduct within the community,
    will prove more resistant to judicial cleansing than will opinions based on
    yesterday's news and referable to a specific person or event.

[43]

This reference to racial bias applies equally to bias against
    homosexuals. Like the racial bias described by Doherty J.A., bias against homosexuals
    may be learned over a lifetime, engrained in an individuals subconscious
    and reflected in both individual and institutional conduct within the
    community. It may influence the reasoning of a decision-maker in ways that are
    difficult to identify, like the preconceptions described in
Find
, at
    para. 95
.
These factors would impact the observers concern about the
    integrity of the trial.

[44]

The likelihood that a bias against gay men would affect the jurors
    decision-making process is greater given his willingness to publicly disregard
    instructions, engage in homophobic rhetoric, and mock the court process. The
    issue is not whether the juror meant what he said. Nor is it whether he was in
    fact unfair. The issue is the impression that his conduct created.

[45]

The impression created by the jurors conduct goes beyond a bias against
    gay men. A reasonable observer would have the impression that the juror lacked
    respect for the justice system. This goes directly to the perception of
    fairness.

[46]

My colleague states that it is not this courts function to speculate
    about the effects of offensive comments on targeted groups. I take a different
    view. It is not necessary to speculate. Such comments have no place in a fair
    and impartial justice system. The reasonable observer would expect that a
    person who comes before the courts would be treated with dignity and respect and
    not be publicly ridiculed by the person judging him.

[47]

My colleague also states that a reasonable observer would not apprehend bias
    because this type of humour has become mainstream. Again, I take a different
    view. The reasonable observer would hold those who represent the justice system
    to a high standard and expect them to show respect for the system and the
    persons involved in it. In an era of declining civility in public discourse, it
    is more important than ever that the courts maintain the dignity and
    impartiality that grounds public confidence in our justice system.

[48]

I agree with my colleague that the fresh evidence is not relevant.

[49]

I conclude that a reasonable person, knowing all the facts, would apprehend
    that consciously or unconsciously it was more likely than not that this juror
    would not decide fairly.

E.

Disposition

[50]

I would allow the appeal, set aside the convictions, and order a new
    trial.

M.L. Benotto
    J.A.

I agree M.
    Tulloch J.A.

Doherty J.A. (Concurring):

I

overview

[51]

I have read my colleagues reasons. I agree that the appeal should be
    allowed and a new trial ordered. However, I arrive at that conclusion by a
    different route. I do not agree that the conduct of Juror #12 requires that the
    convictions be quashed. I would hold, however, that the trial judges
    instructions to the jury failed to adequately caution the jury against the use
    of evidence and factual findings relevant to the counts involving one
    complainant in its consideration of the counts involving the other three
    complainants. In the circumstances of this case, that error is fatal to all of
    the convictions.

[52]

My colleague has briefly set out the evidence. It is unnecessary for me
    to add much detail.

[53]

There were four complainants. The evidence of three of the complainants,
    D.M., J.B. and M.L., essentially described a single ongoing narrative. That
    narrative began with D.M.s encountering the appellant at the spa during the
    evening of September 24, 2011. J.B., who knew D.M., joined D.M. and the
    appellant at about 3:00 a.m. on September 24
th
. According to D.M.,
    the appellant had sexually assaulted him before they encountered J.B.

[54]

D.M., J.B. and the appellant went back to the spa in the early morning
    hours of September 24
th
. D.M. left their company shortly afterwards.
    M.L., the third complainant, joined J.B. and the appellant at the spa.

[55]

J.B., M.L. and the appellant went back to the appellants home. According
    to J.B., the appellants mood changed suddenly and he attacked and restrained
    J.B. on the bed. The appellant and another man named Jack proceeded to
    sexually assault J.B. Eventually, J.B. managed to get free and the appellant
    told him to leave the house.

[56]

M.L. testified that he witnessed the assault by the appellant on J.B.
    and that he was assaulted in much the same way at the same time. His evidence,
    however, differed in some respects from J.B., particularly as it related to the
    involvement of Jack. M.L.s evidence was very unclear as to exactly what, if
    anything, Jack had to do with the events.

[57]

Although on M.L.s evidence, J.B. was present when M.L. was assaulted,
    J.B. testified that he had not seen the appellant sexually assault M.L.

[58]

The fourth complainant, G.N., described an assault that occurred in
    early October 2011. G.N. testified that he met the appellant at the spa. He was
    attacked and sexually assaulted by the appellant at the appellants home while
    G.N. was heavily under the influence of crystal meth. When first questioned
    about the events by the police, G.N. described the assault as a dream. He
    gave similar evidence at the preliminary inquiry but testified at the trial
    that the events had in fact occurred.

[59]

The appellant did not testify. He did, however, give a statement to the
    police which was tendered by the Crown as part of its case. In his statement,
    the appellant indicated that he and D.M. had consensual sex and did not use a
    condom because both were HIV positive possibly. He testified that he
    playfully briefly tied up J.B. and M.L. with their consent, but untied them
    when they asked to be released. He did not have sex with either man. In his
    statement, the appellant indicated that he met G.N. at the spa and had
    consensual protected and unprotected sex with him at the bathhouse. G.N. stayed
    with the appellant at his house for a day or so afterwards.

[60]

The credibility of all four complainants was very much in issue at
    trial. All were under the influence of alcohol and drugs during the relevant
    events. All gave a variety of inconsistent statements. J.B., who was recalled
    to the stand during the trial, admitted that he had committed perjury when he
    first testified and denied speaking with M.L. for several months before the
    trial. As it developed, M.L. and J.B. had stayed together in the same hotel
    room during the trial. J.B. also testified and denied any contact with D.M.
    during the trial. He was later confronted with evidence that J.B. had texted
    him during the trial.

[61]

M.L. testified about staying with J.B. in the hotel during the trial. According
    to him, J.B. told M.L. that he had lied on the stand about his contact with
    M.L. and told M.L. that he should tell the same lie. M.L. replied that he would
    tell the truth. M.L. became very upset with J.B. and consumed a great deal of
    alcohol and ecstasy. When M.L. testified, he acknowledged his contact with J.B.
    during the trial. This led to the recall of J.B. and his admission that he had
    perjured himself during his testimony.

II

the grounds of appeal

[62]

There are several grounds of appeal. I will address the ground of appeal
    based on the alleged misconduct of Juror #12 and the ground of appeal based on
    the alleged inadequacy in the trial judges instructions as they relate to the
    cross-count use of evidence and findings of fact. As I am satisfied that the
    appeal must succeed on the second of these grounds, and that the other grounds
    of appeal do not demonstrate reversible error, I will not consider those
    grounds of appeal.

F.

juror #12s alleged misconduct

[63]

My colleague has described the conduct of Juror #12 which is said to
    give rise to a reasonable apprehension of bias, necessitating the quashing of
    the verdicts. While I agree with my colleagues formulation of the relevant
    legal principles to be applied in addressing this ground of appeal, I disagree
    with her application of the principles to the relevant facts.

(i)

The fresh evidence proffered by the appellant

[64]

Before explaining why I disagree with my colleague, I will address the
    appellants fresh evidence application. The evidence offered by the appellant
    consists of various articles attached as exhibits to an affidavit of a lawyer
    who is an associate of counsel for the appellant. The articles summarize the
    content of the relevant radio programmes, offer opinions about some of those
    comments, report on events subsequent to the broadcast, including the
    cancellation of the programme, and offer opinions as to the impact of Juror
    #12s conduct on the fairness of the appellants trial and, more generally, on
    the due administration of criminal justice.

[65]

In my view, the proffered evidence, with one exception, is neither
    helpful nor admissible. This court has a disc of the broadcasts and transcripts
    of the broadcasts. Newspaper accounts of the excerpts from those broadcasts are
    obviously not as accurate as the discs and the transcripts. The reports about
    the fallout from the broadcasts, while interesting, are irrelevant to the
    apprehension of bias argument. Finally, opinions of individuals as to the
    impact of the comments of Juror #12 on the fairness of the proceedings or the
    appearance of justice, are irrelevant to the courts determination of the bias
    claim. Counsels submission that this court can take the opinions of two or
    three people who happen to express those opinions publicly as circumstantial
    evidence of how a reasonable person, fully informed of the facts, would react
    to the radio broadcasts, has no merit.

[66]

I would, however, admit the evidence offered on appeal for one limited
    purpose. In considering whether Juror #12s comments justify setting aside the
    verdicts, the context in which those remarks were made is very important. The
    evidence offered on appeal describes the nature of the programme on which the
    comments were made. The nature of the programme is a significant part of the
    context in which Juror #12s comments must be placed. I would admit the fresh
    evidence for the very limited purpose of assisting in placing the comments of
    Juror #12 in their proper context. I would add that there does not appear to be
    any real dispute between the parties about the nature of the programme.

[67]

Juror #12 made the comments during a programme called the Dean Blundell
    Show. The programme aired on weekday mornings on a Toronto radio station and
    was hosted, not surprisingly, by a person named Dean Blundell. Juror #12 was a
    producer on the show, and from time-to-time an on-air participant.

[68]

The format of the show consisted of mostly music and light banter among
    Mr. Blundell and others, including Juror #12, about a variety of topics. The
    conversations were intended, at least in part, as comedic entertainment. Mr.
    Blundell and his cohorts made fun of virtually everything and everybody. Their
    conversations are replete with remarks that can be characterized as politically
    incorrect, sexually suggestive, vulgar and deliberately offensive. The Dean
    Blundell Show clearly sought to attract an audience by pushing the limits of
    what one would normally hear on commercial radio.

[69]

It is, of course, not this courts role to comment on the quality of the
    entertainment offered by the Dean Blundell Show. Nor, do I think it is part of
    this courts function to speculate about the effect of the kinds of comments
    made by Mr. Blundell and others on the programme. My colleague declares that
    some of the offensive statements and comments have a negative impact on those
    targeted or ridiculed by them. She may be correct. There is no evidence before
    the court on that issue. Nor should there be as, in my view, it is irrelevant
    whether the comments had a negative impact on anybody. This courts only chore,
    and it is a difficult one, is to decide whether the comments of Juror #12
    create a reasonable apprehension that Juror #12 did not decide the case in
    accordance with his oath, thereby rendering the verdicts a miscarriage of
    justice. There are other forums in which other concerns raised by some of the
    content of the programmes can be addressed.
[2]

(ii)

The appellants arguments

[70]

Juror #12 made comments during the Dean Blundell radio programme that
    aired on September 20, 2013 and September 30, 2013. The September 20th comments
    were made while the trial was ongoing. The September 30th comments were made very
    shortly after the jury had delivered its verdicts.

[71]

Counsel for the appellant makes three submissions based on Juror #12s
    comments. First, she submits that the comments were homophobic and display a
    bias against homosexuals such as the appellant. She submits that the comments,
    combined with the nature of the allegations against the appellant and the
    evidence heard by the jury, would cause a reasonable apprehension that Juror
    #12s verdicts were influenced by his homophobic beliefs.

[72]

Second, counsel submits that even if Juror #12s comments do not create
    a reasonable apprehension of bias against homosexuals, those comments,
    considered in the context of the entirety of the two programmes, demonstrate
    that Juror #12 had a total disregard for the instructions of the trial judge, a
    disdain for the criminal jury process, and a contempt for both the complainants
    and the appellant. Counsel submits that a reasonable observer, apprised of
    Juror #12s mindset as revealed in his various comments, would conclude that Juror
    #12 did not take his responsibilities as a juror seriously and would further
    conclude that Juror #12 felt no obligation to return a true verdict according
    to the evidence. Counsel submits that Juror #12s conduct compromised the
    fairness of the trial and resulted in a miscarriage of justice.

[73]

Third, counsel submits that Juror #12s comments after the verdicts were
    returned reveals that he, and perhaps other jurors, engaged in impermissible
    propensity and cross-count reasoning to arrive at verdicts. In support of this
    submission, counsel refers to specific comments made by Juror #12 during the
    September 30th broadcast.

[74]

The third argument can be disposed of quickly. Assuming the comments of
    Juror #12 during the September 30th broadcast can be taken as evidence of how
    the jury actually deliberated and arrived at its verdicts as opposed to merely
    statements by Juror #12 about that process, Juror #12s comments cannot be used
    to challenge the validity of the verdicts. That use would be in direct
    contravention of the common law rule of jury secrecy as articulated in
R.
    v. Pan
, [2001] 2 S.C.R. 344, at paras. 77, 82, 123-26.

[75]

I see no reason to narrow the scope of the common law rule because Juror
    #12 provided his description of the deliberations in a public forum as opposed
    to privately to counsel or some other person. I must also disagree with
    counsels submission that because Juror #12 made the statements in a public
    forum there would be no need to further question Juror #12 or the other jurors
    if the evidence was admissible as evidence of what occurred during the jury
    deliberations. If, as counsel argues, the manner in which the jury arrived at
    its verdicts could be impugned by the comments of Juror #12, those comments
    would demand further inquiry under oath of Juror #12 and the other jurors
    concerning the nature of their deliberations. Those inquiries are the exact
    mischief the common law rule of jury secrecy aims to avoid.

[76]

Juror #12s comments on the September 30th programme were not admissible
    as evidence of the manner in which the jury arrived at its verdicts and cannot
    be used for that purpose to impugn the verdicts.

[77]

Counsels first two arguments are more substantial. The first is a
    straightforward reasonable apprehension of bias claim based on Juror #12s
    allegedly homophobic comments. Counsel submits that the comments demonstrate a
    bias against homosexuals and, that in the entirety of the circumstances, the
    reasonable observer would conclude that Juror #12s bias against homosexuals
    likely played a role in Juror #12s assessment of the appellants guilt.

[78]

The second argument is a little more difficult to articulate. I
    understand the submission to be that Juror #12s conduct, considered as a
    whole, including his willingness to disregard the trial judges instructions
    about not speaking about the case, his repeated participation with Mr. Blundell
    and others in mocking the trial process and his demeaning and ridiculing
    remarks about those involved in the trial, would lead an informed person,
    viewing the matter realistically, to conclude that it was likely that Juror #12
    did not feel bound to decide the case according to his oath and the trial
    judges instructions. This argument does not disregard the alleged homophobic
    nature of some of the comments made by Juror #12, but rather offers those
    comments to support the contention that Juror #12 did not take the matter
    seriously at all, but instead viewed his participation in the jury as an
    opportunity to provide fodder for the irreverent, and offensive, humour featured
    on the Dean Blundell Show.

(iii)

Was there a reasonable apprehension of bias based on Juror #12s
    allegedly homophobic comments?

[79]

Juror #12 made comments during the September 20
th
and 30
th
broadcasts, and laughed at comments made by Mr. Blundell and others, that could
    reasonably be regarded as homophobic. He also made negative comments about the
    appellants lifestyle as revealed in the evidence. The appellants sexual
    preference is naturally reflected in his lifestyle.

[80]

To succeed on this argument, the appellant must demonstrate both bias
    and partiality: see
R. v. Find
, [2001] 1 S.C.R. 863, at paras. 40-41;
R.
    v. Parks
, [1993] O.J. No. 2157, at para. 35. He must satisfy the court
    that the reasonable observer, fully apprised of the circumstances and context
    in which the comments were made, would conclude that it was probable that:

·

Juror
    #12 had preconceived negative attitudes towards homosexuals [bias];

AND

·

Juror
    #12s negative attitudes towards homosexuals caused him to discriminate against
    the appellant in his deliberations [partiality].

[81]

The distinction between bias and partiality is crucial. Jurors come from
    the community and reflect the views and values of the community. Inevitably,
    jurors will have biases for or against certain persons or certain groups. The
    jury system is predicated on the presumption that those biases can be overcome
    by the various protections built in to the jury trial process so that jurors,
    despite their biases, will decide the case on the evidence and the law as given
    to them by the judge.

[82]

Several features of the jury trial process promote and support the
    presumption of impartiality. The presumption takes on particular force when, as
    in this case, jurors were subjected to a challenge for cause that targets the
    specific bias in issue. The challenge for cause process followed in this case
    eliminated prospective jurors whom the triers found to be biased against
    homosexuals. Equally important, the challenge for cause process alerts all
    prospective jurors, including those ultimately selected, to the risk that their
    own subconscious biases against homosexuals could affect their thinking about
    the case. An honest juror, having been through the challenge for cause process,
    would be aware of, and alert to, the danger that a subconscious bias against
    homosexuals could seep into his or her deliberations.

[83]

I think the appellants argument based on Juror #12s alleged bias
    against homosexuals fails at the first stage of the inquiry. I do not accept
    that a reasonable person, having regard to the context in which Juror #12s
    comments were made, would conclude that those comments demonstrate a bias
    against homosexuals. I will begin with the homophobic comments.

[84]

Things people say are usually a very good indication of what they
    believe. Not all comments, however, provide a window into the beliefs of the
    speaker. Sometimes a joke, even a joke that is offensive, is nothing more than
    a joke. Jokes based on stereotypical notions of identifiable groups are a
    longstanding and common feature of popular mainstream culture. One need only
    turn on the television or radio to hear comedians making fun of virtually any
    identifiable group within the community, including men and women, the young and
    the old, homosexuals and heterosexuals, black and white. I pass no judgment on
    this kind of humour. Its prevalence in our culture, however, would lead the
    reasonable observer to readily understand that there is not necessarily any
    correlation between a disparaging remark made in the context of comedic
    entertainment and the actual beliefs of the person who makes the comment.

[85]

I do not mean to suggest that things said in jest can never provide an
    insight into the speakers actual beliefs. Comedy can be a powerful medium
    through which a speaker conveys a message. Things said in jest can also provide
    insight into the subconscious beliefs of the speaker.

[86]

The distinction between comments that are only intended to entertain and
    comments that provide real insight into the speakers beliefs can be difficult
    to discern. The reasonable observer must look at the context and any extraneous
    evidence that may assist in determining what connection, if any, to draw
    between the comment and the beliefs of the speaker.

[87]

Juror #12s comments were made in the context of a programme that
    attempted to entertain by ridiculing everything and everybody. The programmes
    indiscriminate mockery of almost everything would suggest to the reasonable
    listener that little, if anything, said on the program should be taken as
    indicative of anything other than an attempt to make the listener laugh.

[88]

The appellant also offers no extraneous evidence to support the
    contention that Juror #12s comments reflect his beliefs. There is no
    suggestion that homophobic comments were a common feature of the Dean Blundell
    Show. If there was evidence that homosexuals were regularly maligned and
    belittled on the Dean Blundell Show, I think it would be easier to infer from
    Juror #12s comments a bias, conscious or subconscious. Juror #12s comments,
    however, arose out of a very specific and unique event  Juror #12s
    participation on a jury trying a case that involved homosexual activity. In
    that circumstance, it is easier to infer that the homophobic comments are no
    more than an attempt to use Juror #12s participation on a jury to generate the
    kind of shock jock commentary regularly featured on the programme.

[89]

There is also nothing about Juror #12, apart from the comments made on
    two occasions on the Dean Blundell Show, to suggest that he has any bias
    against homosexuals. His comments on the radio programme must be placed
    alongside his statement under oath during the challenge for cause process that
    he would not be influenced by any bias against homosexuals. In my view, a
    reasonable observer would not be prepared to take Juror #12s comments on two
    occasions on the Dean Blundell Show in isolation from everything else and
    conclude that Juror #12 was biased against homosexuals.

[90]

Juror #12s comments were made during a programme that made fun of
    virtually everything and everybody on a daily basis. The programme challenged
    the limits of what some would call political correctness and others would
    describe as civility and good taste. Given the nature of the programme, I think
    it is very likely that had Juror #12 been a juror in a case identical to this
    one, except that it involved heterosexual activity among several persons, the
    very same kinds of jokes would have been made on the Dean Blundell Show. The
    incessant references to smelling the evidence, to various kinds and colours
    of bodily fluids, and to different forms of sexual activity could have been
    easily adapted to fit a case involving heterosexual activity. In the same vein,
    jokes about the appellant being happy to go to the penitentiary because of the
    ready availability of same-sex partners would have become jokes about the
    appellant having to learn to deal with male rather than female partners.
    Similarly, the oft repeated sexually suggestive references to a hung jury
    could just easily have been made had the case involved heterosexual activity.

[91]

I am satisfied that a reasonable observer would take the homophobic
    nature of some of Juror #12s comments, not as indicative of his beliefs, but
    as incidental to the true purpose of the comments which was to entertain,
    titillate and shock the listener. The reasonable observer would take the
    comments as part of the standard fare offered as entertainment on the Dean
    Blundell Show. The appellant has not convinced me that the reasonable observer
    would take the comments as reflecting Juror #12s actual beliefs.

[92]

Nor do I accept that the very public venue in which Juror #12 made his
    comments strengthens the inference that the comments reflect his actual
    beliefs. To the contrary, I think it is clear that to some extent Juror #12 was
    playing the straight man role in the broadcasts. It was his job to set-up Mr.
    Blundell and others to deliver their punchlines. Juror #12s position was not
    unlike that of an actor delivering homophobic lines from a script. In my view,
    the reasonable observer would be less inclined to think that Juror #12s
    comments made during the Dean Blundell programme reflected his true beliefs
    than would be the case had the jurors comments been made in a venue in which
    Juror #12 was not playing an assigned role as part of his employment.

[93]

I stress, again, because, quite frankly, I feel my position will be
    misunderstood, that I do not mean to assert that humour predicated on stereotyping
    or ridiculing identifiable groups is harmless or acceptable. That kind of
    humour may be harmful insofar as it targets marginalized and otherwise
    vulnerable groups. That harm, however, is not the concern of this court on an
    appeal from convictions. This court cannot allow an appeal and quash the
    appellants convictions on very serious criminal charges because it finds Juror
    #12s comments offensive, or because it has concerns about the harmful effects
    of those comments on the individuals who are targeted by them. This court can
    quash a conviction only if satisfied that the comments demonstrate a reasonable
    apprehension of bias giving rise to a miscarriage of justice. As a first step,
    the court must decide whether the reasonable observer would take the comments
    as indicative of Juror #12s actual beliefs about homosexuals. I do not think
    the appellant clears that hurdle.

[94]

I turn now to Juror #12s comments about the appellants lifestyle. Juror
    #12 made several comments, both on September 23rd and September 30th, that made
    it abundantly clear that he found the appellants lifestyle as disclosed in the
    evidence extremely distasteful and offensive.

[95]

It is not uncommon in criminal cases that evidence will paint a distasteful
    picture of the day-to-day lives of persons caught up in the criminal justice
    system. This is one such case. On the evidence, the appellant and the
    complainants sought out anonymous and casual sexual encounters, fuelled by the
    copious consumption of illicit and dangerous drugs. As the appellants lawyer
    put it, the appellant was on a party weekend, fuelled by MDMA, cocaine,
    alcohol and meth. Put in its best light, the appellant led a criminal,
    irresponsible, dangerous and immoral lifestyle. At worst, the evidence
    indicated that the appellant was a sexual predator, seeking out others for
    non-consensual, unprotected sex.

[96]

Jurors are not expected to leave their moral compass at home when they
    attend for jury duty. They cannot, however, allow any negative view they may
    form about an accuseds lifestyle to prejudice them against the accused in
    their deliberations. Juries are routinely instructed to that effect. The
    adequacy of the instruction given in this case is a separate ground of appeal.

[97]

Juror #12s disapproving comments about the appellants lifestyle
    included references to his sexual promiscuity. Those references, quite
    naturally, referred to homosexual activity. I do not, however, take from those
    disapproving comments about the appellants lifestyle any bias against
    homosexuals or homosexual activity. A large segment of the community,
    regardless of sexual preference, would be offended by the appellants lifestyle
    as depicted in the evidence. His lifestyle was offensive to many, not because
    it involved homosexual activity, but because it involved criminal, dangerous
    and predatory conduct.

[98]

For the reasons set out above, the appellant has not convinced me that
    the reasonable observer would find that Juror #12 was biased against
    homosexuals. It follows that the claim of a reasonable apprehension of
    partiality based on homophobic bias must fail.

(iv)

Did juror #12s conduct result in a miscarriage of justice?

[99]

The appellant maintains that Juror #12s conduct and comments during the
    Dean Blundell programme demonstrate that he did not take his oath or
    responsibility as a juror seriously. Instead, he treated his role as a juror as
    a source of material for the radio programme. The appellant submits that any
    person with the cavalier attitude demonstrated by Juror #12s conduct cannot be
    trusted to have fairly and fully discharged his obligations as a juror. The
    appellant argues that a reasonable observer, fully cognizant of Juror #12s
    attitudes, would conclude that it was more likely than not that Juror #12
    disregarded his oath and obligations in discharging his duties as a juror.

[100]

This argument
    has two building blocks. First, the appellant submits that Juror #12s conduct
    on the programmes establishes that he had no regard for the trial judges
    instructions to the jury that they should not discuss either the case or their
    deliberations with anyone. The appellant submits that Juror #12 violated both
    instructions. Second, the appellant submits that Juror #12s comments
    demonstrate a disdain for the process and the persons involved in the process,
    including the complainants and the appellant, that is irreconcilable with a
    jurors obligation to fully and fairly try the case according to the evidence
    and the law as provided by the trial judge.

[101]

The trial judge,
    following a well-established practice, told the jury in her pretrial
    instructions that they should not give information about the case to anybody. She
    instructed the jury to tell anyone who inquired about the trial that jurors
    were not allowed to discuss the case.

[102]

During the
    September 20th broadcast when the trial was ongoing, Mr. Blundell repeatedly
    asked Juror #12 about the trial. Juror #12 told Mr. Blundell on at least eight
    separate occasions during the broadcast that he could not talk about the facts
    of the case as long as the case was ongoing. Mr. Blundell told his audience
    that he had asked Juror #12 off the air about the details of the trial many,
    many times and Juror #12 had refused to give him any details. Juror #12 said:

I cant. I just cant. Its just wrong.

I dont want to jeopardize anything.

[103]

Despite his
    repeated indications that he could not talk about the case, Juror #12 participated
    in a conversation with Mr. Blundell and his associate during the September 20th
    broadcast in which Mr. Blundell and his associate asked Juror #12 a series of
    specific questions about the trial. He provided cryptic answers obviously
    intended, at least in some instances, as straight lines opening the door to
    sexually suggestive, and sometimes offensive, comments by Mr. Blundell and
    others on the programme.

[104]

As the exchange
    between Juror #12 and Mr. Blundell continued, Juror #12 actually disclosed a
    few facts about the case. His statements were general. He indicated that the
    case involved sex and drugs and a bunch of singles. He allowed as how it
    might be possible that the case involved a bunch of guys. Juror #12 promised
    to tell the audience all about the case after the trial was over and everything
    was a matter of public record.

[105]

Some of Juror
    #12s comments on September 20th breached the trial judges instruction to not
    discuss the case with anyone. The information he provided was generic and benign.
    However, what concerns me about Juror #12s conduct is his willingness, for
    entertainment purposes, to play along with Mr. Blundell despite the jurors
    obligation to not discuss the case. As I interpret Juror #12s involvement, he
    understood his obligation not to talk about the case, but at the same time
    played his role on the show by offering bits and pieces of information that
    would generate the kind of sexually suggestive and off-colour remarks that
    passed for entertainment on the Dean Blundell Show. He should not have engaged
    in any conversation about the trial beyond the fact that he was on a jury and
    was not allowed to talk about the case.

[106]

A proper
    assessment of Juror #12s attitude towards his responsibilities as a juror
    requires a consideration of other comments he made during the September 20th
    broadcast. He made several statements that revealed a respect for his fellow
    jurors and commitment to the jury process. For example, Mr. Blundell asked,
    Does anyone take jury duty seriously? Juror #12 replied:

You know what, they choose the jury appropriately, appropriate
    to the case.

And actually all of the jurors in my jury are fantastic.

[107]

Later in the
    broadcast, Juror #12 referred to jury duty as fascinating, indicating that
    putting your life on hold was the only negative aspect of jury duty. He also
    made similar positive comments about his fellow jurors and the jury process in
    the September 30th programme. Juror #12 referred to the deliberations as hard
    work and said all the jurors were mentally exhausted after a day of
    deliberations. He also described the case as really interesting.

[108]

I do not come
    away from my review of the comments made by Juror #12 during the broadcasts
    with a sense that he had no regard for his obligations as a juror. To the
    contrary, I am left with the impression that he had found his role as a juror
    both interesting and worthwhile. Rather than showing disdain for the process, I
    think Juror #12s comments, considered as a whole, left a positive impression
    of the jury process.

[109]

My colleague
    suggests that Juror #12 mocked the jurors oath in the course of the
    September 20th broadcast. I do not read his comments that way. Certainly, Mr.
    Blundell mocked the oath. Juror #12 actually attempted to explain the
    oath-taking process at trial and the alternatives available to those who did
    not wish to be sworn. Juror #12 was continually interrupted by Mr. Blundell and
    an associate. Eventually, Juror #12 laughed when the associate made a comment
    about having ones fingers crossed when taking the oath. It goes much too far
    to interpret his laughter as a mocking of the oath-taking process by Juror #12.

[110]

In summary,
    during the September 20th programme, Juror #12 breached the judges order to
    not talk about the case. He put himself in a position in which his obligations
    as a juror conflicted with his role as the straight man on the Dean Blundell
    Show. To some extent, Juror #12 compromised his obligations as a juror to
    provide subject matter for the programme. He should not have done so.

[111]

Not every
    impropriety by a juror demands that the verdicts returned by the jury be
    quashed. Juror #12 said very little about the facts of the case during the
    September 20th broadcast. While he should have said nothing, I would
    characterize what he did say as a relatively minor breach of the judges order.
    His breach must also be considered in the context of the rest of his comments
    about the process, particularly his positive comments about the jury
    experience. I would not infer from Juror #12s breach of the judges order a
    disdain by Juror #12 for his obligations and responsibilities as a juror.

[112]

Juror #12
    returned to the Dean Blundell programme on September 30th, shortly after the
    jury had returned its verdicts. He indicated at the outset of his programme
    that he could now talk about the facts of the case since the verdicts had been
    returned, but that he could not talk about the deliberations. The distinction
    drawn by Juror #12 is correct in law. Section 649 criminalizes jury disclosure
    of information relating to the proceedings of the jury when it was absent from
    the courtroom. Section 649 is a permanent injunction against a juror
    discussing deliberations except in the exceptional circumstances identified in
    the section. However, after verdicts are returned, there is no prohibition
    against jurors discussing the evidence that was heard in a public courtroom,
    although as the developments in this case show, discussing the evidence can
    lead to discussions about jury deliberations.

[113]

Juror #12
    described the evidence and the proceedings at trial during the September 30th
    programme. His descriptions are largely accurate. Those descriptions
    precipitated various comments by Mr. Blundell and others. Juror #12 joined in
    this commentary. The comments referred to bodily parts, bodily fluids, smelling
    evidence, various forms of sexual activity, and described the appellant in very
    negative terms. Juror #12 and Mr. Blundell joked about the appellant, because
    he was homosexual, being happy to go to the penitentiary because of the ready
    availability of sexual partners. There is no doubt that some of the commentary
    is both crude and offensive. I have set out above why I do not draw the
    necessary link between Juror #12s participation in those conversations and the
    allegation of homophobic bias.

[114]

Unfortunately,
    Juror #12 also slipped into a discussion about the manner in which the jury
    assessed the complainants credibility:

We kind of determined
that though these people [the
    complainants] are not the smartest individuals in the world  and yes, and they
    probably couldnt hold up a fake story because the whole court proceeding took
    two years to get to this point  so if they  if they made it up they would
    have cracked at some point with all the questioning they had to do and
    testimonials and stuff like that. [Emphasis added.]

[115]

The comment may
    have contravened the prohibition in s. 649 of the
Criminal Code
. Counsel
    for the appellant submits that it provides strong evidence that any presumption
    that Juror #12 would have decided the case in accordance with his oath should
    be rejected.

[116]

I do not accept
    this argument. Juror #12s comment was an isolated one. He did not set out to
    violate the prohibition against discussing jury deliberations. At the outset of
    the September 30th programme, he indicated to Mr. Blundell that he could talk
    about the facts of the case, but not about the deliberations.

[117]

On my reading,
    Juror #12 slid into a comment about the manner in which the jury resolved
    credibility issues as an almost inevitable consequence of his discussion of the
    evidence and facts of the case. If he breached s. 649, the breach was not a
    wilful one. The lesson to be taken from the September 30th programme is that
    jurors would be well advised to avoid any discussion of the facts of the case
    even after the trial is over.

[118]

Juror #12 should
    not have said anything about the manner in which the jury went about its
    decision-making. I am not prepared, however, to accept that Juror #12s comment
    demonstrates a disdain for the process and a disregard for his obligations as a
    juror.

[119]

In the course of
    discussing the evidence during the September 30th broadcast, Juror #12
    described the intelligence of the complainants in disparaging terms on several
    occasions. For example, in one comment, he referred to them as boneheads.

[120]

Juror #12s
    remarks about the complainants were inappropriate and potentially hurtful. One
    would have thought that having concluded that the complainants were indeed
    victims, Juror #12 could have mustered a more empathetic reaction to their
    situation. Complainants in sexual matters have a difficult enough time in the
    criminal justice system without being subjected to demeaning commentary over
    the public airways by jurors.

[121]

I do not,
    however, leap from a finding that Juror #12 made inappropriate comments about
    the complainants to a finding that a reasonable observer would conclude that
    Juror #12 did not abide by his oath. I see no connection between Juror #12s
    low regard for the intelligence of the complainants and his overall respect for
    the process and ability to impartially try the case.

[122]

For the reasons
    set out above, I would not give effect to the grounds of appeal based on the
    alleged misconduct of Juror #12.

G.

the jury instructions

[123]

The Crown
    initially brought a similar fact application, seeking a ruling that the
    evidence directly relevant to each count was also admissible on the counts
    involving the other complainants. During the trial, the Crown abandoned that
    application. By the end of the trial, the allegations of each complainant stood
    or fell independently of each other. The trial judge instructed the jury:

Each allegation is a separate charge. You must make a
    separate decision and give a separate verdict for each of the six charges
    outlined in the indictment, which I believe you all have a copy of. You must
    make your decision on each charge only on the basis of the evidence that
    relates to that charge and any legal principles that I tell you apply to the
    decision on that charge. You must not use evidence that relates only to one
    charge in making your decision on any other charge.

[124]

Shortly after
    this instruction, the trial judge summarized the evidence as it related to each
    element of each count in the six-count indictment. Crown counsel argues that by
    taking this approach, the trial judge at least impliedly identified and
    separated the evidence that related to each charge.

[125]

Counsel for the
    appellant takes no issue with what the trial judge said, but submits that the
    instructions did not go far enough. Counsel contends that the trial judge had
    to make it clear to the jury that it could not use the evidence of one
    complainant to bolster the credibility of the other complainants. Counsel
    further argues that the trial judge had to specifically tell the jury that if
    the jury was satisfied that the appellant had committed the offences against
    any one of the complainants, it could not use that finding in any way in
    determining the appellants liability on the other charges.

[126]

I agree with
    both submissions. The evidence of each complainant as it related to his
    allegations could not be neatly compartmentalized and separated from the
    evidence of the other complainants. Their narratives of the relevant events
    overlapped as did their evidence of post-event conduct leading to allegations
    of collusion. On this record, the trial judge had to make it clear to the jury
    that except to the extent the complainants were testifying about the same
    events, the acceptance of the evidence of one of the complainants neither made
    the evidence of the other complainants more credible, nor provided any
    independent evidence that the appellant had committed any of the offences
    alleged by the other complainants.

[127]

R. v. F.T.
,
    2015 ONCA 904 is directly on point. In that case, two complainants alleged that
    they had been sexually assaulted by their father. The Crown did not suggest
    that the evidence of one complainant was admissible as similar fact evidence in
    respect of the other. The trial judge told the jury to consider the allegations
    of each complainant separately, using language similar to the language used by
    the trial judge in this case. In holding that the instruction was inadequate,
    this court held, at para. 27:

In addition to the caution prohibiting propensity reasoning,
    the jury should have been advised that they could not use the evidence of one
    complainant to support or confirm the evidence of another complainant [citation
    omitted.]. This additional instruction complements and amplifies the
    admonishment that the jury consider the evidence on each count separately. While
    this is a case that was approached by counsel and the judge on the basis that
    similar fact evidence did not apply, it is evident that the evidence of abuse
    of each complainant overlapped to a significant degree. In these circumstances,
    it was particularly important to displace a jurors normal inclination to
    reason that the several aspects of similar behaviour attributed to the
    appellant, if accepted, tended to mutually corroborate the evidence of each
    complainant. That type of reasoning is prohibited in a caution that one
    complainants evidence could not confirm the evidence of the other was
    required.

[128]

Crown counsel
    argues that the unqualified instruction to consider each count separately
    effectively eliminated any potential consideration of the evidence of one
    complainant when addressing the charges involving another complainant. Crown
    counsel submits that this instruction inured to the benefit of the appellant as
    on a proper instruction, the jury would have been told to compare and contrast
    the evidence of the complainants when assessing the appellants argument that
    the complainants had colluded to fabricate the allegations.

[129]

Crown counsel
    may be correct in his contention that a more detailed instruction could have
    assisted the Crown on issues related to the alleged collusion by the
    complainants. However, with respect, this submission misses the prejudice
    caused by the non-direction. As pointed out in
F.T.
, when the evidence
    of complainants overlaps and is essentially part of an ongoing single
    narrative, there is a genuine risk that the jury will assess the credibility of
    the complainants as a whole, or at least that a positive impression with
    respect to the credibility of one will rub off on the assessment of the
    credibility of the other.  Unless the evidence directly relevant to the
    allegations of one complainant qualifies as relevant to the allegations of the
    other complainants, this cross-count reinforcement of the credibility
    individual complainants is wrong in law.  Even if a more detailed instruction
    could have assisted the Crown in some ways, the fact remains that the
    instruction provided failed to make the essential point that belief of one
    complainant could not support or confirm the allegations of the other
    complainants.

[130]

The trial judge
    should also have instructed the jury that a finding that the appellant had
    assaulted or confined one of the complainants could not be used in considering
    his liability on the counts involving the other complainants. The similarities
    in the descriptions of the assaults by the complainants, and the interconnected
    nature of their narrative, invited a line of reasoning moving quickly from a
    finding that the assault occurred against one to a further finding that the
    assault occurred against others. That line of reasoning, a form of propensity
    reasoning, may well have been encouraged by the extensive evidence portraying
    the appellants lifestyle, particularly his sexual activities, in a potentially
    negative light. The trial judge should have pre-empted the risk of
    propensity-based reasoning with a clear instruction, both as it related to the
    prohibition against general propensity reasoning, and the prohibition against
    the use of a finding of guilt in relation to one complainant on the charges
    involving other complainants: see
R. v. J.A.T.
, 2012 ONCA 177, at
    paras. 39-40; 67-68.

III

conclusion

[131]

I would allow
    the appeal, quash the convictions and direct a new trial on those counts. The acquittal
    on count two stands.

Released: October 31, 2016

Doherty J.A.

[1]
Section 649 reads: Every member of a jury who [aside from during an
    investigation into or as a witness in proceedings on a charge of obstructing
    justice] discloses any information relating to the proceedings of the jury when
    it was absent from the courtroom that was not subsequently disclosed in open
    court is guilty of an offence punishable on summary conviction.

[2]

Mr. Blundell was apparently fired, at least in part, because
    of this incident.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Duncan,
    2016 ONCA 754

DATE: 20161013

DOCKET: C61612

Doherty, Hourigan and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Duncan

Appellant

Erec Rolfe, for the appellant

Susan Ficek, for the respondent

Heard and released orally:  October 7, 2016

On appeal from the sentence imposed by Justice Lack of
    the Superior Court of Justice, sitting with a jury, on September 9, 2015.

ENDORSEMENT

[1]

The appellant was convicted of aggravated assault.  He and two other
    persons robbed a particularly vulnerable victim.  In the course of the robbery,
    one of the co-accused struck the victim in the face causing very serious and
    long-term injuries.  The trial judge found that the appellant planned and set
    up the robbery.  The jury convicted the appellant of aggravated assault on the
    basis of s. 21(2) of the
Criminal Code
.

[2]

The trial judge imposed a sentence of two years, less a day.  In doing
    so, she gave effect to a submission that the appellant should be sentenced to a
    reformatory term to allow him to access resources that could assist him with
    his addiction-related problems.

[3]

Taking into account presentence incarceration, the appellant received an
    effective sentence of five and one-half years.

[4]

Counsel for the appellant submits that the sentence is too long and that
    the trial judges reasons demonstrate two errors.

[5]

First, he submits that the trial judge failed to give the appellant any
    credit for the particularly harsh circumstances in which he served his
    presentence incarceration.  Counsel submits that not only did the trial judge
    not give the appellant any credit, but the trial judge in fact held that, as a
    matter of law, the appellant could not receive credit beyond the 1.5 days for
    each day credit referred to in s. 719(3.1) of the
Criminal Code
.

[6]

On our reading of the trial judges reasons, we agree with counsel.  The
    trial judge effectively held that any credit or consideration in relation to
    presentence incarceration was capped at the 1.5 limit.  We agree with counsel
    that in the appropriate circumstances, particularly harsh presentence
    incarceration conditions can provide mitigation apart from and beyond the 1.5
    credit referred to in s. 719(3.1).  In considering whether any enhanced credit
    should be given, the court will consider both the conditions of the presentence
    incarceration and the impact of those conditions on the accused.  In this case,
    there was evidence that the appellant served a considerable part of his
    presentence incarceration in lockdown conditions due to staffing issues in
    the correctional institution.  There was, however, no evidence of any adverse
    effect on the appellant flowing from the locked down conditions.  Indeed, some
    of the material filed on sentencing indicates that the appellant made positive
    rehabilitative steps during his presentence incarceration.

[7]

While the pattern of lockdowns endured by the appellant is worrisome,
    without further evidence as to the effect of those conditions, we cannot say
    that the appellant suffered particularly harsh treatment entitling him to additional
    mitigation beyond the 1.5 credit.  Consequently, although we agree that the
    trial judge misinterpreted the relevant provision, we would not reduce the
    sentence to reflect any added mitigation for the conditions of presentence
    incarceration.

[8]

The second ground of appeal is based on the sentence imposed on a co-accused.
    The co-accused received an effective sentence of four years.  The appellant
    submits that his sentence should not have been any longer than the co-accuseds
    sentence.  He argues that the co-accused had a more serious criminal record and
    took a more active role in the aggravated assault.

[9]

The trial judge considered these arguments.  She also observed there
    were other differences between the appellant and the co-accused that supported
    a longer sentence for the appellant.  She noted in particular that the
    co-accused had pled guilty, a significant mitigating factor.

[10]

We see no error in the trial judges treatments and consideration of the
    arguments based on parity of sentencing.  We would not interfere with the
    sentence on that basis.

[11]

Counsel are agreed that there was an error made in the calculation of
    the 1.5 credit for presentence incarceration and that the appellant is entitled
    to an additional 23 days of credit.  We would, therefore, allow the appeal to
    the extent of reducing the sentence by 23 days, resulting in a sentence of two
    years, less 24 days.  Otherwise, we would not interfere with the sentence.

Doherty J.A.

C.W. Hourigan J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fernandes, 2016 ONCA 772

DATE: 20161020

DOCKET: C60920

Doherty, Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Charles Fernandes

Respondent

Lisa Joyal, for the appellant

Howard L. Krongold and Kenneth Y.W. Jim, for the
    respondent

Heard: September 22, 2016

On appeal from the acquittal entered on July 31, 2015 by
    Justice Healey of the Superior Court of Justice.

Hourigan J.A.:

Introduction

[1]

The respondent walked into a detachment of the Ontario Provincial Police
    and told the front counter administrative assistant that he wanted to confess
    to burning down his mothers house.

[2]

Arrangements were made for the respondent to speak with a police
    officer. During the course of that discussion, the respondent advised that he
    was homeless and wanted to go to jail.

[3]

The police officer advised the respondent that arson is a serious
    offence, which may be punishable by imprisonment, and cautioned the respondent
    that anything he said to the officer could be used in evidence. The officer
    also repeatedly suggested to the respondent that he obtain legal advice.

[4]

Initially the respondent was not interested in speaking to a lawyer, but
    eventually he relented and had a telephone conversation with duty counsel.
    After receiving legal advice, the respondent proceeded to give a statement
    implicating himself in the fire that had destroyed his mothers house.

[5]

On a
voir dire
regarding the voluntariness of the statement,
    the trial judge found that a combination of oppressive conditions and
    inducement have operated together to produce an involuntary confession. She
    ruled that the statement was inadmissible. Without the statement, the Crown was
    no longer in a position to proceed to trial and consequently requested that the
    trial judge enter an acquittal.

[6]

On appeal, the Crown submits that the trial judge erred in finding that the
    statement was involuntary. In particular, the Crown argues that the trial judge
    misapplied the law regarding the issues of inducement and oppression. Further,
    the Crown submits that the trial judge conflated her role on the
voir dire
,
    being the determination of whether the statement was voluntary, with her role
    at trial of determining whether the statement was reliable.

[7]

For the reasons that follow,
I would
    allow the appeal, set aside the acquittal, and
order a new trial.

Facts

[8]

On the morning of August 8, 2014, the respondent attended at the Huronia
    West Detachment of the Ontario Provincial Police. He was alone and did not have
    a scheduled appointment. Nor was he under investigation, detention, or arrest
    for any offence.

[9]

The front counter administrative assistant greeted the respondent upon
    his arrival at the police station. The respondent advised her that he was there
    to turn himself in for burning down his mothers house.

[10]

Arrangements were made for the respondent to meet with Officer Sowyrda
    in an interview room. At the beginning of the discussion, the respondent
    advised the officer that, I can't live outside because I have all kinds of
    injuries inside of me and I got like brain damage and I got nerve damage and I
    got all kinds of shit wrong with me.

[11]

The respondent told the officer that he needed to go to jail and that he
    was not leaving until he had a place to stay. When the officer explained that
    only people who commit crimes go to jail, the respondent told him, Well I have
    committed a crime and I got away with it, so I'll just admit to it and I'll be
    on my way.

[12]

Officer Sowyrda told the respondent that anything the respondent said to
    him could be used as evidence. The officer also advised the respondent that he
    had a right to consult with counsel and he recommended that the respondent
    exercise that right.

[13]

The interview continued in the same manner. The officer advised the
    respondent on at least three occasions that he was free to leave at any time.
    He told the respondent on four occasions that anything he said could be used
    against him. On ten occasions he told the respondent that arson was a serious
    offence, and on at least three of those occasions he told the respondent that
    it was punishable by up to fourteen years imprisonment.

[14]

Throughout the interview, Officer Sowyrda also repeatedly asked the
    respondent if he wanted to speak to counsel and advised him that counsel could
    be supplied free of charge through Legal Aid. The respondent refused the offer
    of counsel on nine occasions. However, on the tenth occasion he agreed to speak
    with duty counsel. After that call, the respondent provided a detailed
    statement about the arson, implicating himself in the crime.

[15]

The respondent was charged with one count of arson. Prior to the
    commencement of trial, the parties advised the trial judge that a
voir dire
to determine the admissibility of the respondent's statement would be held
    separately from the respondent's trial. On the
voir dire,
the Crown
    called as witnesses the officers and staff who were in contact with the
    respondent at the police station at the time of his confession, as well as the
    officers who had initially investigated the fire. The Crown entered as an
    exhibit a videotape of the interview. The respondent called no evidence on the
voir
    dire
.

Ruling on
Voir Dire

[16]

In her ruling on the
voir dire,
the trial judge described the
    issue to be determined as follows, at para. 18:

The issue raised by this application is whether the accused's
    statement was voluntary within the meaning of the confessions rule. The rather
    unusual question to be decided is, absent any of the traditional grounds
    stemming from conduct or words from a person in authority that would render a
    statement involuntary, whether the voluntariness of the statement is
    nonetheless vitiated because it was induced by the accused's oppressive
    personal circumstances, or, alternatively because it was not the product of an operating
    mind.

[17]

The trial judge found that the officer's conduct toward the respondent
    had been "unimpeachable" and "blameless". She went on to
    state, at para. 29:

There was nothing in the officer's conduct that can be
    criticized ... The officer appeared to make great efforts to ensure that the
    accused did not feel pressured or coerced into making a statement, all the
    while fulfilling his duty to gather any relevant facts that may assist in
    resolving what had been transformed into a potential crime once the accused
    began his confession.

[18]

The trial judge further found that the respondent possessed an operating
    mind at the time of making his statement.

[19]

Notwithstanding these findings, the trial judge concluded that Officer
    Sowyrda had induced the respondent to confess through presenting the
quid
    pro quo
of jail in return for a confession. The trial judge further
    concluded that the respondent had been "oppressed" by his own
    "mind" and "imagination". She reasoned as follows, at paras.
    34-35:

This is one of those cases where oppressive conditions and
    inducement have operated together to produce an involuntary confession.
    Although it is usually the case that the focus is on police conduct when
    examining threats, promises or oppressive circumstances, this case illustrates
    how, even with unimpeachable police conduct, a confession may be found to be
    involuntary when all of the circumstances are examined . . . an accused may be
    labouring under circumstances of oppression sufficient to create a reasonable
    doubt that have nothing to do with the police.

Issue

[20]

The issue for determination on this appeal is whether the trial judge
    erred in finding that the respondents statement to the police was involuntary.
    In considering this issue, I will consider the general legal principles
    informing a voluntariness analysis. I will then review the trial judges
    analysis on the issues of inducement and oppression. Finally, I will consider
    the Crowns submission that the trial judge conflated her role on the
voir
    dire
with her role at trial.

Analysis

(a)   General Principles

[21]

The law regarding voluntariness is well settled and need not be reviewed
    in detail for the purposes of this appeal.

[22]

Because of the criminal justice systems overriding concern not to
    convict the innocent, for a statement made to a person in authority to be
    admissible it must be voluntary. This is known as the confessions rule. The
    onus to establish the voluntariness of a statement lies with the Crown, and it must
    be proven beyond a reasonable doubt.

[23]

When reviewing a confession, a trial judge should consider all the
    relevant factors to understand whether the circumstances surrounding the
    confession give rise to a reasonable doubt as to the confessions
    voluntariness. The relevant factors include: oppression, threats or promises
    (i.e. inducement), the operating mind requirement, and police trickery:
R.
    v. Oickle
, 2000 SCC 38, [2000] 2 S.C.R. 3.

[24]

In
R. v. Whittle
, [1994] 2 S.C.R. 914, Justice Sopinka, writing
    for the court, summed up the analysis with the following question, at para. 31:
    "Did the action of police authorities deprive the suspect of making an
    effective choice by reason of coercion, trickery, misinformation or the lack of
    information?"

[25]

In the present case, the trial judge concluded beyond a reasonable doubt
    that the respondent had the required operating mind. There was also no issue of
    police trickery. The trial judges analysis focused on the issues of oppression
    and inducement. I turn now to that analysis.

(b)     Inducement

[26]

Where the state induces a suspect to confess, regardless of whether the
    inducement comes in the form of a threat or a promise, the confession will be
    inadmissible

when the
    inducement, whether standing alone or in combination with other factors, is
    strong enough to raise a reasonable doubt about whether the will of the subject
    has been overborne:
Oickle
, at para. 57.

[27]

The most important consideration in determining whether the accused's
    statement has been induced by such a threat or promise is whether there was a
quid
    pro quo
offer by the interrogators.
A
quid
    pro quo
offer

is an inducement for the suspect to confess that
    raises the possibility that the suspect is confessing, not because of any
    internal desire to confess, but merely in order to
gain
the benefit
    offered by the interrogator:
R. v. Heatley
, 2015 BCCA 350, 375 B.C.A.C. 194,
at para. 6
, and
Oickle
, at para. 56.

[28]

In the present case, the trial judge concluded that the fact that
    Officer Sowyrda advised the respondent that he could be imprisoned as a
    consequence of his confession operated as an inducement, given the respondents
    stated desire to find shelter. This conclusion is incorrect for the following
    reasons.

[29]

First, there must be a nexus between the threat or promise and the
    confession. There can be no inducement where the thing said or done by the person
    in authority does not result in the confession:
Oickle
, at para. 84.
    There was no nexus in this case as the respondent came to the police detachment
    with the express purpose of confessing to the arson. He made his intentions
    known to the administrative assistant before speaking to the officer.

[30]

Second, the act of supplying accurate factual information to an
    accused does not constitute an inducement:
R. v. Backhouse
(2005), 195
    O.A.C. 80 (C.A.),
R. v. Teske
(2005), 202 O.A.C. 239 (C.A.). Officer Sowyrda
    had a duty to provide
information to
    the respondent regarding his potential jeopardy. Indeed, if he did not do so,
    the statement made by the respondent could potentially be found to be
    involuntary on that basis. I agree with the submission of the Crown that police
    officers should not be placed in an untenable position where both providing
and
failing to provide suspects with
    information about their potential jeopardy could each render statements
    inadmissible.

[31]

Third, on the factual findings of the trial judge, it is clear that the
    officer was not actively seeking to elicit a confession. To the contrary, he
    repeatedly advised the respondent to seek counsel, told him he was free to
    leave at any time, and made clear the seriousness of the situation.

[32]

In these circumstances, it was an error in law to find that the
    respondent was induced to make the statement.

(c)      Oppression

[33]

A statement of an accused will be rendered involuntary and inadmissible
    where the conduct of a police officer or the circumstances of the detention are
    so oppressive as to raise a doubt whether the accused was able to make an
    independent choice to speak to the police or remain silent: Lederman, Bryant
    and Fuerst,
The Law of Evidence in Canada,
4th ed. (Markham:
    LexisNexis, 2014),

at para. 8.63.

[34]

Examples of oppressive conditions include situations where the detainee
    is deprived of food, clothing, sleep, or medical attention. Excessively
    aggressive, intimidating questioning by the police for a prolonged period of
    time may also constitute oppression:
Oickle
, at paras. 59 to 62,
R.
    v. Hoilett
[1999], 121 O.A.C. 391 (C.A.), at paras. 25-26.

[35]

In the present case, the trial judge found the respondent's statement to
    be involuntary because of the atmosphere of oppression created by the
    respondent's own mind and imagination. She held that the fact that the
    respondent was homeless and in desperate need of shelter meant that he was
    suffering under oppressive conditions. In my view, the trial judge erred in law
    in her analysis of the issue of oppression.

[36]

Under the confessions rule, the oppressive conditions must be caused or
    created by the state. The concern underlying this part of the rule is that state
    agents may abuse their authority over an accused to effectively negate the
    accuseds ability to make an independent decision to speak to the authorities:
Oickle
,
    at para. 60. Here the trial judge found that the conduct of the police was
    unimpeachable and blameless. Given these findings, it is not possible that
    oppression was a factor.

[37]

The trial judge also found that the respondent had an operating mind.
    Consequently, in the absence of police misconduct, he was responsible for his
    decision to speak to police and not maintain his right to silence. As Justice
    Sopinka put it in
Whittle
, at para. 55: Inner compulsion, due to
    conscience or otherwise, cannot displace the finding of an operating mind
    unless, in combination with conduct of a person in authority, a statement is
    found to be involuntary. While the respondents inner compulsion may have led
    to his confession, there was nothing in the conduct of the police that would
    render the statement involuntary.

[38]

In my view, there was no basis for the trial judge to conclude that the
    respondent was oppressed by the police while at the detachment.

(d)     Conflation of Roles

[39]

The Crown submits, and I accept, that the trial judges ruling
    demonstrates that she conflated her role on the
voir dire
of
    determining whether the statement was voluntary with her role at trial of
    determining if the statement is reliable.

[40]

During the Crowns submissions on the
voir dire
, the trial judge
    asked the Crown whether the overarching concern on the
voir dire
was
    the reliability of the confession. The Crown replied that the question before
    the court was one of voluntariness, and that reliability was an issue reserved
    for the trial. Defence counsel agreed that the truth, falsity, and ultimate
    reliability of the statement ought to be matters reserved for the trial.

[41]

Despite the submissions of counsel, in her ruling the trial judge expressed
    her concern, at para. 40, that the statement may be false:
even
    if the question of admissibility was determined differently, as the eventual
    trier of fact I would be unable to attach much weight to the statement given
    its content
.

[42]

The effect of this error
is that it deprived the Crown
    of the opportunity to tender the statement in the context of all of the
    evidence at trial to prove its veracity beyond a reasonable doubt. In other
    words, by conflating the two exercises the trial judge considered the ultimate
    reliability of the statement without the benefit of the rest of the evidence.

Disposition

[43]

I would allow the appeal, set
    aside the acquittal, and
order a new trial.

Released: DD OCT 20 2016

C.W. Hourigan J.A.

I agree. Doherty
    J.A.

I agree. S.E. Pepall
    J.A.