R. v. O’Brien : Can the End Justify the Means?

The Globe & Mail calls the recent Supreme Court decision in R. v. O’Brien a “clash between liberal and conservative factions on the Supreme Court of Canada.” But this case actually highlights the problem which arises when judicial errors at the trial level are compounded by an unwillingness of higher courts to acknowledge and rectify them, even when the end result may be, as Justice Binnie writes for the minority in this case, a wrongful conviction.

The Facts
O’Brien involves a convenience store robbery in Amherst, Nova Scotia. The robber used a knife and a blue Halloween mask, fleeing the scene unapprehended after the act. The next morning, in the same neighbourhood near the store, police found two masks, a knife, and the store’s cash register cover. Conducting a test on DNA traces from one of the masks, the police discover it matches the accused, Mr. David Marty O’Brien.

Admitting the Inadmissible: A Bad Reputation Can Follow You To Trial
At trial, an investigating officer made “several brief references” to Mr. O’Brien’s criminal past. Yet, defence counsel did not object to the admissibility of these references nor seek a limitation on its usage. In fact, defence counsel even referenced the accused’s criminal past during cross-examination and their closing statement, including the accused’s “reputation” as a “known offender”.

Under the principles of evidence, these statements of bad character should not have been admitted into the record given that they were unfair and potentially biased the trier of fact against the accused. Furthermore, these statements conflict with the presumption of innocence enshrined in ss. 7 and 11 (d) of the Canadian Charter of Rights and Freedoms. Yet the trial judge allowed them to be admitted and at no point did he mention they were to be limited.

Nova Scotia Court of Appeal Majority Reads What Isn’t Written
At the Nova Scotia Court of Appeal, the trial judge’s reasons for his decision come under the microscope.

The accused appealed arguing the absence of references to character evidence in the judge’s reasons show the trial judge was not live to the requirement this evidence needed to be disabused, and therefore may have influenced his decision.

Even the Crown “acknowledged that it was an error for the character evidence to be heard.” However, the Crown said because the judicial error was a “harmless one”, the curative proviso in s. 686 (1) (b) (iii) of the Criminal Code should apply, and the appeal should therefore be dismissed. Essentially the Crown contended that, while a judicial error occurred, it did not result in a “substantial wrong or miscarriage of justice”.

Unfortunately for the Crown, a two judge majority at the Nova Scotia Court of Appeal disagreed and ordered a new trial.

Justice Beveridge and Justice Farrar ruled the trial judge should have made reference to disabusing himself of the inadmissible character evidence, even if the decision was decided based upon other reasons (mainly DNA evidence).

Justice Beveridge and Justice Farrar ruled the trial judge must demonstrate, through their reasons, they are live to such an issue, and the onus falls upon the Crown to demonstrate the judge was not “influenced by the evidence” for the curative proviso to apply (an onus it had not discharged according to the two judges).

In dissent, Justice Fichaud ruled the error in not disabusing the character evidence in the trial judge’s decision was not enough to overturn the conviction.

This paved the way for the decision to go before the Supreme Court.

Don’t Read Outside The Lines
The SCC in O’Brien, in a 5-2 decision, rule the trial judge’s lack of attention to the inadmissible statements are insufficient to overturn the conviction and therefore restore the conviction.

Justice Abella, on behalf of Chief Justice McLachlin and Justices Deschamps, Rothstein and Cromwell, reaffirms Justice Fichaud’s dissenting decision from the Nova Scotia Court of Appeal.

The core of Justice Abella’s decision is as follows: at trial the only issue was identification, the trial judge based his conviction “entirely” upon the DNA evidence (by explicitly stating this in his reasons), and the “investigating officer’s character evidence played no role in this finding.”

Furthermore, Justice Abella declares a trial judge’s obligation to provide reasons for their decision does not extend to a “requirement to itemize every conceivable issue, argument or thought process.” Trial judges should have their decisions reviewed based upon what they actually write, Justice Abella proclaims, not based upon the “speculative imagination of reviewing courts.”

Justice Abella states it would be wrong “if the reasons reveal a proper grasp of the facts and the law, the trial judge may nonetheless find the integrity of his or her decision undermined by the possibility that judicial silence on an issue will be interpreted as “unconscious” judicial error.” Basically, Justice Abella calls for a extreme level of deference to be owed to trial judges, especially regarding things absent from their decision.

For these reasons, Justice Abella and the SCC majority allow the appeal and restore the trial conviction.

Makes sense, right?

Not according to Justice Binnie and Justice LeBel.

The Spectre of Past Wrongful Convictions
Justice Binnie, writing for the minority (which also only includes Justice Lebel), finds “no evidence, circumstantial or otherwise” links the accused to the crime, other than the DNA traces on one of two masks found near the crime scene.

Thus, Justice Binnie declares the “propensity evidence” used at trial against the accused, without judicial comment, necessitates a new trial. Justice Binnie lambasts “the police branding of the respondent as a career criminal”, which he writes was “against basic principles of trial fairness.”

Justice Binnie’s decision then provides a nuanced understanding of DNA evidence. He writes the majority, by focusing upon how the trial judge relied “entirely” upon the DNA evidence for the conviction, “ignores the context of the trial as a whole”.  Justice Binnie draws attention to the fact that, while the “reliability of DNA science is well established”, problems with DNA have also led to several wrongful convictions, especially where no other probative proof connected an accused to a crime.

As such, Justice Binnie and Justice LeBel in dissent rule the appeal should be dismissed and a new trial ordered.

An Unfair Trial Can Get You Six Years and Six Months
The DNA evidence was insufficient for the conviction. Two masks were found and one had DNA traces matching the accused. As Justice Binnie correctly states, “Evidence of a “match” does not, of course prove guilt of the offence.” Actually, a DNA match simply establishes that “at some point in time” the accused was in contact with the mask.

Is this enough to convict someone and throw them in jail for six years and six months?

The trial judge needed something more to convict the accused, whether it was conscious or subconscious. But as Justice Binnie writes, the propensity evidence which entered the record at trial was “no mere inadvertent slip”, but rather a strategy employed by the Crown against the accused.

Justice Binnie has it right when he rules the “failure of the trial judge’s reasons to address the problematic police evidence is a deficiency that cannot simply be brushed off by reference to his use of the word “entirely” ” (as the majority did). Such major deficiencies, especially where further evidence is lacking, are compounded by the significant risk of a wrongful conviction, and underscore the need for greater scrutiny of trial level decisions where such irregularities are found and evidence is lacking.

By cushioning inadmissible evidence through poorly constructed decisions, too much deference is paid to trial level decisions and the risk of wrongful conviction increases.

Of course, as Justice Abella writes, there is no need for trial judges to itemize every single issue in their decisions. But as Justice Binnie remarks, important issues must be addressed, especially where they were improperly admitted into the record in the first place.

If the Canadian legal system is to prevent further cases like Donald Marshall Jr. and James Driskell, Justice Binnie’s ruling should not have been in the minority. It is imperative greater trial level scrutiny is employed, especially where trial judges have shown themselves to lack the ability to filter admissible and inadmissible evidence, as was the case in O’Brien. In this case, minimal evidence was presented against the accused, inadmissible evidence was not disabused, and the potential for a wrongful conviction was particularly acute.

As Justice Binnie says, “the Crown invokes the magic of DNA evidence to salvage convictions in what all the judges of the Nova Scotia Court of Appeal agreed was an unfair trial.”

In this case, the Crown brought in inadmissible evidence as a strategy, the trial judge allowed it without disabusing it, and the defense counsel did not object to its admissibility. At trial, the justice system failed the accused.

Only the Nova Scotia Court of Appeal majority and the SCC minority truly grasp the broader context and problem when the rights of the accused are trampled like this. This is not to say the accused is not guilty but simply, at the bare minimum, a fair trial is necessary. A minimum standard of fairness was not met in O’Brien.

Nevertheless, now Mr. O’Brien whether guilty or not, will be serving six and a half years in jail via a trial held by almost all parties to be unfair.