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DEFENCES - Entrapment

Friday, May 01, 2020 @ 9:33 AM  

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Appeal by the accused from convictions for breach of trust relating to a witness record incident and a drug investigation file incident. The appellant was acquitted of obstruction of justice in connection with the witness record incident. Her defence of entrapment raised in the drug investigation file incident was dismissed. The appellant was a police officer. Her fiancé was suspected to be involved in illicit drug use that caused police concern. In the witness record incident, the appellant accessed electronic police records and printed the witness statements that police collected during an investigation into a domestic incident involving a friend of the appellant. The friend pleaded guilty. Although no witnesses were called at trial, the appellant was charged with breach of trust and obstruction of justice for her conduct relating to the witness record. The Crown presented no direct evidence that she had released or disclosed the statements to any of the witnesses. The drug investigation incident related to a fake drug investigation file police created and left for the appellant to find to test the appellant’s integrity. The appellant was filmed accessing and photographing the files. She shared this confidential information with her fiancé. The appellant argued that her surreptitiously recorded statements showed that she accessed and shared the information with her fiancé to preserve the integrity of her position as a police officer by ensuring that her fiancé discontinued his association with the suspected drug users and drug dealers which was undermining her ability to maintain her proper role as a police officer.

HELD: Appeal allowed. The appellant was acquitted of the breach of trust charge relating to the witness record incident. A new trial was ordered on the breach of trust charge relating to the drug investigation file incident. The trial judge erred in his charge on reasonable doubt by indicating reasonable doubt must arise from the evidence. The trial judge provided a precise and misleading direction about drawing exculpatory inferences and linked reasonable doubt to evidence-based conclusion. These errors went to the very concept of a reasonable doubt. They could not be corrected by admonitions to give the appellant the benefit of the doubt. The errors made by the trial judge undermined both the presumption of innocence and the burden of proof. The jury verdicts relating to the witness record incident were inconsistent and could not logically or rationally be explained based on any of the holdings that could arise on the evidence. The fact that the appellant accessed only a mock police file was not a bar to a finding that no confidentiality was breached. The trust that was breached arose from the office held and the duties and responsibilities bestowed. The trial judge erred in law in identifying the legal standards to be applied in determining whether entrapment occurred. The trial judge improperly reasoned that peace officers must be held to elevated standards of moral restraint or fortitude and misunderstood the average person inquiry by asking whether any OPP officer faced with the two integrity scenarios would inevitably have been induced to commit the breach of trust. It was improper when applying the average person test to ascribe elevated standards of moral restraint or fortitude where a police officer was charged. Had the trial judge confined herself to the factual circumstances of a police officer trained in handling confidential police information and the implications of its release, she would have been proceeding appropriately. By holding the appellant to higher moral standards and standards of resistance to emotional pressure, she erred.

R. v. Darnley, [2020] O.J. No. 1056, Ontario Court of Appeal, K.N. Feldman, P.D. Lauwers and D. Paciocco JJ.A., March 9, 2020. Digest No. TLD-April272020010