Alberta Court of Appeal decision highlights the many factors affecting credibility

Law360 Canada (May 28, 2024, 11:10 AM EDT) --

John L. Hill

Does the fact that an accused person has a criminal record work to that person’s disadvantage when credibility is at stake? The Alberta Court of Appeal Decision in R. v. Blanchard, 2024 ABCA 130, suggests that a particular bias may play a role when a trial judge uses common sense to discern the truth.

Lance David Blanchard faced nine counts, including attempted murder, kidnapping, unlawful confinement, aggravated sexual assault, possession of a prohibited weapon, uttering threats to cause death or bodily harm and three counts of breaching conditions of a recognizance.

The complainant testified at the preliminary inquiry into the matter in June 2015. She was later shot and killed on Dec. 12, 2015, but her preliminary inquiry testimony was admitted as evidence in Blanchard’s trial (R. v. Blanchard, 2016 ABQB 652). The facts are best set out in the 350-paragraph judgment when Blanchard was sentenced (R. v. Blanchard, [2016] A.J. No. 1323).

The complainant was a 27-year-old Indigenous woman who was living on the street. She had graduated from Grade 12 and was a good student. She clearly came across as an intelligent woman during her preliminary hearing testimony. While there were times when she was distraught, much of her testimony was given in a clear, compelling, coherent and articulate manner. She spoke of having some artistic talent and displayed a sense of humour.  

Blanchard was described at the time of his arrest (June 16, 2014) as a 57-year-old, six-foot-and-seven-and-three-quarter-inches tall, 260-pound man. He was imprisoned at the Prince Albert Penitentiary and released on Oct. 11, 2013. He was strong, having lifted weights in prison and became adept at boxing and the martial arts. He moved to Edmonton and into an apartment in early January 2014.

It was another common “he said/she said” case. Essentially, the case became a test of credibility, but this time with the wrinkle that the complainant was not alive to testify and be cross-examined at trial. The accused had a serious criminal history.

She said: She was homeless and had been scrounging food in the neighbourhood, eventually trying to gain access to the apartment building and then falling asleep near Blanchard’s apartment. Blanchard approached her while walking a dog and asked if she needed medical assistance. She asked for soup instead. He returned, bringing her food, but she complained the soup was cold. She laid back on the ground and fell asleep again. Upon awakening, she again tried to gain entry into the apartment building. This time, Blanchard “came out of nowhere,” pulled her hair and dragged her to his unit, threatening her with a knife. He partially disrobed her and fondled her breasts and vaginal area. She warded off being stabbed but incurred a defence wound to her arm. He tried unsuccessfully to force her into a linen closet. She eventually was able to call 911, which resulted in police attendance.

He said: He was home alone, sitting at his computer, when he heard the fridge door close in the kitchen. He yelled, thinking his wife was home. He saw the complainant, who had broken into his unit, probably gaining access through the balcony. She was stealing food. She said she was cold and was coming down after having smoked crack cocaine. She ran.

He chased the complainant and used a kitchen knife to try to cut the handles of a bag of food she had stolen. He accidentally cut her and dropped the knife. He attempted to call 911, but she forced the phone from him while flailing her arms.

Counsel at trial argued that the accused should be believed and that the police had considered his criminal background and were lax in investigating and gathering evidence that would substantiate his story.

The trial judge rejected this. An accused is not entitled to a particular type of investigation by the police, nor is he entitled to direct the conduct of a police investigation of which he is the target. The police are not there to investigate a crime on his behalf: R. v. Spackman, 2012 ONCA 905; R. v. Darwish, 2010 ONCA 124; R. v.  Sidhu, 2016 ABCA 321. While the police and the Crown must seriously consider any investigative requests, it is the ultimate responsibility of the Crown and the police to determine the proper course of the investigation. This argument may have had greater success had Blanchard not made contradictory or misleading statements to the police.

The Alberta Court of Appeal accepted the authorities considered by the trial judge and added two more: R. v. Levin, 2014 ABCA 142 and R. v. Malley, 2017 ABCA 186. They explained that even if the law were more permissive and gave greater authority to an accused to direct the police investigation, that law would require the information warranting further investigation to at least be credible. In this case, the appellant’s efforts to manipulate and mislead the police cast doubt on the credibility of the exculpatory information he provided them.

Blanchard’s conviction was upheld, and he is now declared a dangerous offender. Was he wrongly convicted, or is this a case where his past doomed him from the outset?

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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