COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Spackman, 2012 ONCA 905
DATE: 20121224
DOCKET: C50464
Laskin, Feldman and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Kelly Spackman
Respondent
Alexander Alvaro, for the appellant
Joseph Wilkinson and Anida Chiodo, for the respondent
Heard: April 25, 2012
On appeal from the acquittal entered by Justice W. Brian Trafford of the Superior Court of Justice, sitting with a jury, on April 16, 2009.
Watt J.A.:
[1] Sometimes, a person accused of a crime will point to someone else as the person who committed it.
[2] And sometimes, a person accused of a crime will claim that the police investigation of the offence that resulted in the charge was seriously flawed.
[3] Both happened here.
[4] Kelly Spackman was charged with second degree murder. The Crown alleged that he killed Alexander Christoff. Spackman contended that another person, Steve Chung, was the killer and that the police investigation of Chung’s involvement was inadequate; the product of “tunnel vision” that focussed exclusively on Spackman (the respondent).
[5] Crown counsel at trial wanted to call Chung as a witness to give the lie to the respondent’s claim that Chung was the killer. The trial judge, who had already decided that alternate suspect and inadequate investigation issues could be advanced before the jury, ruled that the Crown could not call Chung as a witness or introduce any evidence derived from Chung’s disclaimer of responsibility.
[6] The jury found the respondent not guilty.
[7] The Crown appeals the respondent’s acquittal. The principal ground of appeal concerns the exclusion of Chung’s evidence and other evidence derived from his testimony. Other grounds assert errors in the charge to the jury and in the exclusion of evidence of intercepted private communications.
[8] These reasons explain why I have concluded that a combination of errors in the conduct of these proceedings requires a new trial.
[9] It is helpful to begin with a brief overview of the case as it was presented to the jury at trial leaving detailed elaboration where necessary to the individual grounds of appeal.
[10] The deceased was a drug dealer who lived in an apartment over a convenience store not far from the intersection of Yonge Street and Lawrence Avenue in Toronto. His currency was marijuana although he had expanded into cocaine trafficking in the year before he died. He was “cautious” in his illicit dealings, careful in his choice of customers, and in the manner in which he conducted his business.
[11] In the three or four months prior to his death, the respondent became the deceased’s supplier of cocaine.
[12] The respondent was also a drug dealer. He lived in an apartment at 110 Erskine Avenue with his girlfriend, Tijana Petrovic.
[13] Steve Chung, another drug dealer, lived at 326 Dalesford Road, a very short distance from where the frozen body of the deceased was found by a passerby on March 11, 2005. Chung supplied cocaine to the respondent in kilogram level quantities.
[14] The respondent and Chung were associates in the cocaine trade. Each had a prior conviction for large scale distribution of drugs. Chung and the deceased did not deal directly with one another although they may have met briefly one evening at the Film Lounge, a local nightclub.
[15] The evidence adduced at trial revealed two drug transactions between the respondent as seller and the deceased as purchaser.
[16] The first transaction began at the respondent’s apartment. He asked for, and the deceased provided, $30,000 in cash for a kilogram of cocaine. The respondent took the money, left the apartment, and returned a few minutes later with a kilogram of cocaine. The deceased took the drugs and left the apartment.
[17] The deceased agreed to buy another kilogram of cocaine from the respondent. The price was about the same as the first deal. The deceased turned over the money to the respondent in the same apartment. The respondent left with the money to get the drugs. A few minutes later, the respondent returned to the apartment without the drugs or the money the deceased had given him.
[18] The deceased expressed concern that he had been “ripped off”. The respondent offered to help the deceased recover the drugs or money.
[19] The deceased and respondent made several “attempts” to recover the drugs or money. The deceased told a friend that a “Woodbridge guy” had been involved in the drug deal.
[20] On February 23, 2005, the deceased and respondent made several telephone calls in connection with the failed drug transaction. They left together from the respondent’s apartment and travelled to Woodbridge, all to no avail. They returned to the respondent’s apartment.
[21] Frustrated by the respondent’s failure to refund his money or supply the drugs, the deceased told the respondent that unless the cash were returned or the drugs supplied, he (the deceased) would send some Asian gang members after both the respondent and his girlfriend, or his girlfriend would be kidnapped.
[22] Between February 24 and March 8, 2005, 63 calls were made between cell phones owned by the deceased and the respondent. At least one call took place every day. No money or drugs changed hands.
[23] The deceased and respondent exchanged a further 7 cell phone calls on March 9, 2005.
[24] The deceased’s parents invited him for supper at their home on the evening of March 9, 2005. As they waited for dinner, the deceased answered several calls on his cell phone. Around 7:00 p.m., he left his parents’ home. He said he would be back for supper in 10 minutes. He never returned.
[25] The deceased called a friend and asked him to provide backup for a meeting he (the deceased) was to have with the respondent. The friend declined.
[26] The last telephone call between the deceased’s and respondent’s cell phones took place at 7:29 p.m. on March 9, 2005 and lasted seven seconds. The same cell tower handled both phones indicating that the respondent and deceased were not far apart.
[27] At about 7:30 p.m. on March 9, 2005, the deceased entered the convenience store located on the ground floor of the building where he lived. He was in the store only briefly before he left.
[28] Calls were made from or received by the deceased’s cell phone between 7:30 and 7:55 p.m. on March 9, 2005. According to the cell towers routing the calls, the trier of fact could conclude that the deceased and the respondent travelled south from the area of the deceased’s apartment to the Gardiner Expressway and west on the Expressway. The deceased spoke to a friend at 7:34 p.m. and again at 7:55 p.m. He said that he was on his way to meet the “Woodbridge guy” to collect his money. At 7:55 p.m. the deceased was less than three kilometres from the place where his body was found two days later.
[29] From 8:20 p.m. on March 9, 2005 and thereafter, all incoming calls to the deceased’s cell phone went directly to voicemail and were routed through one or both towers with coverage in the area where his body was found.
[30] No calls were made from or received by the respondent’s cell phone from 7:29 p.m. until 8:08 p.m. on March 9, 2005, when the tower routing information placed him in an area about 1 kilometre east of where the deceased’s body was found. Similar information placed him near his home at around 8:37 p.m. on March 9, 2005.
[31] A police officer travelled the distance between the location of the deceased’s body and the respondent’s residence on Erskine Avenue in 24 minutes between 8:07 and 8:31 p.m. one evening.
[32] An expert in cellular telephone technology explained that two cell towers provided overlapping coverage in the area in which the deceased’s body was found. Overlapping coverage was not unusual. It was the witness’ opinion that the deceased’s handset was likely stationary from 8:20 p.m. on March 9, 2005. The changes between the overlapping towers revealed by the incoming calls that went directly to voicemail were likely due to instantaneous environmental factors, such as the volume of cellular telephone traffic, or an environmental change such as the movement of a large vehicle through the area.
[33] It was the expert’s opinion that although the deceased’s cell phone could have received text messages between 8:20 p.m. on March 9, 2005, and when his body was found two days later, no text messages were sent from the deceased’s cell phone during that same time.
[34] A passerby walking along a pathway discovered the deceased’s body early in the afternoon of March 11, 2005. The body was fully clothed, resting against a chain-link fence near a walkway about 60 or 70 paces away from 326 Dalesford Road where Chung lived. The deceased’s cell phone and a pager were in his pocket.
[35] No blood trail was visible in the area around the body. Investigators found some blood along the back wall of the building, north of the body, as well as on the deceased’s clothing and under his body. They found a toque and pager clip north of the deceased’s body.
[36] The deceased died of blood loss caused by 12 sharp force injuries only one of which was superficial. Two of the wounds were associated with fractures of adjacent ribs indicative of the application of significant force. Dr. David Chiasson, the forensic pathologist who conducted the post-mortem examination of the deceased, said that the wounds had been caused by a single knife or knife-like object with a blade 2.5 centimetres wide and 10 to 15 centimetres long, or by more than one cutting instrument of a similar nature. Dr. Chiasson could not say how many people were involved in the stabbing.
[37] Dr. Chiasson could offer no firm conclusion about the time of the deceased’s death. The body was frozen, a process that takes at least 24 hours, and had rested on its back for an extended time as was apparent from the post-mortem lividity the doctor saw on the posterior surface of the deceased’s body.
[38] No evidence was adduced at trial about where the deceased was killed.
[39] The respondent did not testify at trial. As part of its case, the Crown introduced two videotaped interviews of the respondent conducted by investigating officers. The accounts provided in each were relatively consistent, the one with the other, but some of the respondent’s answers were demonstrably false in light of other evidence admitted at trial, including telephone records.
[40] The respondent acknowledged that he had known the deceased for about three months through his girlfriend and had seen him socially during that time. The respondent knew that the deceased sold “weed” and “stuff like that”, as well as cocaine. The respondent had bought “weed” from the deceased, but was not involved with him in any illegal activities.
[41] The respondent told investigators that he had last seen the deceased on March 8, 2005, but had spoken to him by telephone while he was at his mother’s Mississauga home at around 6:00 or 7:00 p.m. the following day. The respondent was suffering from the flu on March 9, 2005, and went home around 7:30 p.m. from his mother’s place. He stayed at home with his girlfriend the rest of that night.
[42] The respondent denied any other contact with the deceased. He told investigators that he did not kill the deceased and had no idea who might have done so.
[43] Cellular telephone records admitted at trial contradict the respondent’s account of his whereabouts on March 9, 2005, as well as the nature and frequency of his contact with the deceased.
[44] At trial, the respondent advanced Chung as an alternate suspect, a fellow drug trafficker with an equivalent motive and commensurate opportunity to kill the deceased whose body was found about 60 or 70 paces away from where Chung lived. A second feature of the “Chung as killer” theme pressed by counsel at trial was an attack on the adequacy of the police investigation that focussed early on the respondent and, blinded by tunnel vision, never adequately examined the much more likely killer, Chung.
[45] Chung called the respondent twice on March 9, 2005, the last time at 1:50 p.m. Chung’s cell phone was in the vicinity of his home from 3:07 to 8:34 p.m. on March 9, 2005, and later that evening, at 10:46 and 11:12 p.m. was located in the Woodbridge area north of Toronto.
[46] Police canvassed the neighbourhood in which the deceased’s body was found over several days following its discovery. Chung was interviewed by police and shown a photo of the deceased whom Chung said he did not recognize.
[47] Shortly after the first neighbourhood canvass, on March 17, 2005, the respondent and Chung were in contact with each other. That day, surveillance officers saw the respondent remove a package from the trunk of his car and give it to Chung. For his part, Chung returned a dark brown square pouch to the respondent. The pair met on several other dates including immediately after police re-canvassed Chung on May 18, 2005.
[48] On June 13, 2005, police searched Chung’s home under a warrant issued on the basis of an information sworn by the lead investigator asserting a belief that Chung may have been “directly or indirectly involved” in the murder of the deceased. The investigator’s sworn belief was grounded on the close proximity of Chung’s residence to the location where the deceased’s body was found and cell phone records that put Chung in the area during the time the police considered the deceased was killed.
[49] During the search of Chung’s residence, about three months after the deceased had been killed, investigators found nothing to link Chung to the killing. They found no traces of blood on the floor and didn’t test any knives for the presence of blood because they didn’t expect to find any traces of blood on them.
[50] What investigators did find at Chung’s home was a marijuana grow operation, along with some cocaine and several pills. Chung was charged with production of marijuana as a result of the discovery. Five months later, in November 2005, the federal Crown withdrew the charges against Chung.
[51] Police did not obtain a warrant to search and did not search Chung’s vehicle.
[52] Crown counsel raises four grounds of appeal. One relates to the exclusion of evidence, two to the judge’s charge to the jury, and the fourth to a pre-trial ruling made by another judge setting aside an authorization to intercept private communications and declaring inadmissible several intercepted private communications proposed for admission by the Crown.
[53] At the risk of inaccurate paraphrase, I would characterize the grounds of appeal in this way:
i. that the trial judge erred in law in excluding the testimony of Chung and any evidence derived from that testimony proposed by Crown counsel to rebut the “alternate suspect” defence and claim of inadequate investigation;
ii. that the trial judge erred in law in instructing the jury that if they could not decide whether the respondent or Chung killed the deceased, they must find the respondent not guilty;
iii. that the motion judge erred in law in “setting aside” an authorization to intercept private communications granted under Part VI of the Criminal Code, and in excluding several intercepted private communications tendered for admission by the Crown as evidence; and
iv. that the trial judge erred in law in making repeated references to wrongful convictions and miscarriages of justice in his final instructions to the jury.
[54] The first and principal ground of appeal relates to a ruling made by the trial judge at the conclusion of a pre-trial motion brought by trial counsel for the respondent (not Mr. Wilkinson). In his ruling, the trial judge:
i. permitted counsel for the respondent to raise the “defence” of inadequate investigation of the alternate suspect Chung;
ii. permitted counsel for the respondent to adduce evidence supportive of the assertion that Chung killed the deceased and that the investigation of Chung’s potential involvement was inadequate; and
iii. excluded the testimony of Chung and any evidence derived therefrom that the Crown proposed to elicit to rebut the “defences” of alternate suspect and inadequate investigation.
[55] The appellant does not quarrel with the trial judge’s decision that permitted counsel for the respondent to adduce evidence in support of the “defences” of alternate suspect and inadequate police investigation. The appellant says that the error lies in the trial judge’s refusal to permit the Crown to respond to the issues admittedly in play at trial with contrary evidence from Chung and others that would have left the jurors with a more balanced picture to evaluate the legitimacy of the respondent’s claim.
[56] To appreciate more fully this ground of appeal, it is necessary to sketch in some further detail about Chung and the investigation that followed the discovery of the body of the deceased.
The Early Investigative Steps
[57] Chung was first approached by the police within days of the finding of the body of the deceased. He told them that he had been at a nightclub on the night of March 9, 2005 and had not returned until 3:00 a.m. on March 10, 2005. Immediately after he had spoken to police, Chung called the respondent twice. Chung also contacted the respondent’s brother. The respondent called Chung.
[58] On April 27, 2005, a judge of the Superior Court of Justice granted an authorization to intercept the private communications of several named persons including both the respondent and Chung. The supportive affidavit alleged that Chung was directly involved in the killing of the deceased.
[59] Police spoke to Chung again on May 18, 2005 and showed him a photograph of the deceased. Chung said he didn’t know the person in the photograph. After this canvass, Chung called the respondent several times and went to his apartment. He also counselled another witness not to speak to the police about the investigation.
The Search of Chung’s Home
[60] Detective Sgt. Saunders swore an information to obtain a warrant to search Chung’s residence on June 13, 2005 (the ITO). The lead investigator alleged that Chung was involved in the killing of the deceased and that the killing took place at 326 Dalesford where Chung lived.
[61] After Chung’s arrest on drug charges that arose as a result of the search of his home on June 13, 2005, Det. Sgt. Saunders approached Chung to ask him some questions about the killing of the deceased. Chung was not under arrest for the murder, nor considered a suspect. Chung declined the police request to speak to them about the homicide investigation.
[62] The authorization to intercept private communications granted on April 27, 2005, expired on June 27, 2005. The intercepted calls revealed nothing conclusive about Chung’s involvement in the killing, but nothing said eliminated the possibility that Chung had been directly involved.
[63] The respondent was arrested for the murder of the deceased on July 14, 2005. Det. Sgt. Saunders considered that the investigation of Chung was sufficiently complete that police could concentrate on the case against the respondent. No further investigation was undertaken in connection with Chung.
[64] Chung left the jurisdiction in late 2005 after the federal Crown had withdrawn the charges laid in connection with the grow operation found during the search on June 13, 2005.
[65] At the respondent’s preliminary inquiry in June, 2006, Chung did not testify. He was not subpoenaed as a witness. The police had made no effort to locate him. Trial counsel for the respondent did not discuss Chung’s attendance with Crown counsel, nor ask that Chung be made available to give evidence at the inquiry.
[66] During his cross-examination of Det. Sgt. Saunders, trial counsel for the respondent elicited evidence on two issues that he would later raise at trial:
i. Chung as an alternate suspect; and
ii. the adequacy of the police investigation in connection with Chung.
It is a reasonable inference that, by the end of the preliminary inquiry, both the lead investigator, Det. Sgt. Saunders, and Crown counsel knew that, at trial, counsel for the respondent would raise the adequacy of the police investigation and the involvement of Chung as an alternate suspect as a basis upon which the trier of fact would be invited to have a reasonable doubt about the respondent’s guilt.
[67] In June 2007, a judge set January 14, 2008, as the date for the respondent’s trial. The case was not reached on this date.
[68] At the end of January, 2008, Crown counsel asked Saunders about Chung’s status and whereabouts. Saunders told the Crown, and the Crown advised the respondent’s trial counsel, that the police did not know Chung’s location and hadn’t looked for him.
[69] In October or November, 2008, the respondent’s trial counsel asked the Crown again about Chung whom he wanted to call as a witness (under subpoena) to establish that, within months of the killing, Chung had fled the jurisdiction. At the time of the request, the police had done nothing to locate Chung.
[70] The respondent’s trial was rescheduled to begin in early February, 2009. During a pre-hearing conference conducted the week before the trial was scheduled to begin, the trial judge emphasized the need to find Chung and bring him to court for the purpose of the respondent’s motion to permit advancement of the alternate suspect and inadequate investigation issues before the jury. Crown counsel acknowledged that the respondent was entitled to raise the alternate suspect issue, but opposed the respondent’s motion as it related to an inadequate investigation.
[71] Chung was found in another province the day following a police inquiry of a source suggested by trial counsel for the respondent.
[72] Counsel for the Crown at trial proposed that a statement be taken from Chung by investigators, and turned over to defence counsel for cross-examination on the respondent’s motion to raise the inadequate investigation issue. Chung consulted with his own counsel, then made it clear that he would not provide a statement to police about his activities or connection with the death of the deceased.
[73] The respondent sought and the trial judge ordered the Crown to disclose what efforts had been made to find Chung during the course of the investigation since evidence of these efforts was relevant to the adequacy of the investigation of the alternate suspect.
[74] On February 12, 2009, Chung appeared as a witness on the respondent’s motion. Trial counsel for the respondent cross-examined Chung for four days on the motion.
[75] Chung testified on the respondent’s motion. He denied any involvement in the killing of the deceased and initially declined any knowledge of the persons responsible.
[76] Chung admitted that he had supplied cocaine to the respondent in amounts of between one-half and one kilogram. He described two specific transactions. He acknowledged that he had met a man named “Alex” (the first name of the deceased) once at the Film Lounge, a local nightclub.
[77] At the conclusion of his examination-in-chief by Crown counsel on the motion, Chung responded to an open-ended question by saying that the respondent had admitted to him (Chung) that he (the respondent) had stabbed the deceased to death and got rid of the knife at “Lakeshore Harbourfront”. Chung provided no further details about the time, place, or circumstances of the stabbing.
[78] Chung explained that the respondent confessed to the killing to provide a form of security for Chung for a drug deal in which they had been involved that did not turn out as planned. The deal involved the supply of cocaine to a United States purchaser and payments in cash and pills, but the debt remained unsatisfied. Chung thought he had been set up to take the fall for the killing of the deceased, since it took place so close to Chung’s home, but he continued to keep in contact with the respondent.
[79] The trial judge decided that the respondent was entitled to raise the issue of inadequate police investigation and to introduce some investigative hearsay evidence in support of that claim. The judge permitted Crown counsel to introduce relevant investigative hearsay to rebut the respondent’s claim, but rejected the Crown’s request to be permitted to call Chung as a witness and to introduce other evidence in rebuttal derived from Chung’s disclosures.
[80] The trial judge considered three discrete, yet related rules of admissibility in determining whether to admit or exclude the testimony of Chung as well as its derivatives. He considered exclusion under:
i. the common law, and later constitutionalized rule that authorizes the exclusion of evidence, the admission of which would render trial proceedings unfair;
ii. the remedial authority of s. 24(1) of the Charter that permits exclusion of evidence as a just and appropriate remedy where introduction of the evidence would render the trial unfair, and thus offend ss. 7 and 11(d) of the Charter; and
iii. the common law discretion to exclude evidence the prejudicial effect of which exceeds its probative value.
[81] In his lengthy reasons for judgment, the trial judge emphasized that the duties on the police to investigate, and on the Crown to prosecute, must be carried out objectively and reflect the exercise of due diligence to avoid tunnel vision that created the palpable risk of wrongful conviction. The trial judge found that the police had not exercised due diligence in the investigation of Chung as an alternate suspect. The investigation of the case was incomplete, the prospect of its timely completion unknown, and the prejudice to the defence obvious from the lack of opportunity to consider and investigate recently disclosed information.
[82] The trial judge considered the probative value of Chung’s evidence. Among the factors he listed in his assessment were these:
i. that Chung admitted lying under oath on the motion;
ii. that Chung attempted to interfere with the investigation
by counselling others to mislead the police and by destroying his email messages;
iii. that Chung was linked to the murder by motive, opportunity, and other suspicious circumstances;
iv. that Chung’s testimony contained several important inconsistencies;
v. that Chung’s testimony was contradicted by other reliable evidence;
vi. that the manner in which investigators handled Chung after he had been located sparked concerns about a motive on Chung’s part to fabricate allegations;
vii. that parts of Chung’s testimony, such as the alleged confession by the respondent, were inherently unlikely; and
viii. that Chung was a witness of unsavoury character.
[83] The trial judge expressed his conclusion about the probative value of Chung’s evidence in this way:
For these reasons, I am satisfied that Mr. Chung’s evidence is of slight probative value, looking at the anticipated evidence as a whole. It is fragile evidence that is not confirmed by independent evidence. The reasonable inferences to be drawn from it are many and varied, some of which are incriminating and some of which are exculpatory. This testimony raises the spectre of a miscarriage of justice, looking at the anticipated evidence as a whole.
[84] On the issue of prejudicial effect, the trial judge considered that Chung’s evidence raised the prospect of moral and reasoning prejudice and would increase the complexity of the trial through the proliferation of innumerable factual and legal issues. Court time would be wasted. There was a danger of unfair surprise to the defence. And the likelihood of an adjournment to permit the respondent to investigate and contemplate the effect of the new material would render the prosecution vulnerable under s. 11(b) of the Charter.
[85] The trial judge concluded his reasons for exclusion in these terms:
For these reasons, I am satisfied that the just and appropriate remedy is to exclude the testimony, of Mr. Chung, and all of its derivative evidence, to ensure the fairness of the defendant’s trial and to maintain the integrity of the administration of justice and the public confidence in it. The tunnel vision of Inspector Saunders, and others acting under his direction, in this case is evident and palpable. To some extent the original Crown Attorneys are implicated in the tunnel vision and otherwise failed to diligently fulfill their own duties to the administration of justice. See R. v. McNeil, supra. The testimony of Mr. Chung, only available at this late stage through the efforts of the Court and the Crown Attorneys on the record at trial, would, if admitted into evidence, create a risk of a miscarriage of justice. Its probative value is slight and its prejudicial effect is significant. The ongoing investigation of collateral sources of information important to an impartial determination of Mr. Chung’s credibility compromises the ability of the defendant to make full answer and defence. The defence is left in a position where the evidentiary landscape at trial is shifting, without a reasonable opportunity to anticipate the dynamics of the trial and develop a coherent and effective response to it, if one is available. Further late disclosure may lead to a mistrial, and a waste of judicial resources. Any such mistrial may lead to a stay of proceedings under s. 11(b) of the Charter, in a case of murder that should be tried on its merits. In the circumstances of this case, the just and appropriate remedy is to exclude the testimony of Mr. Chung and the evidence derived from it.
The Arguments on Appeal
[86] For the appellant, Mr. Alvaro takes no issue with the trial judge’s determination that the alternate suspect and inadequate investigation issues were properly in play before the jury. He acknowledges that appellate courts are bound to accord substantial deference to decisions of trial judges that involve the exercise of discretion, such as the discretion to exclude relevant, material, and otherwise admissible evidence. He submits, however, that where, as here, the discretion is exercised by taking into account factors or principles that are irrelevant, by failing to consider factors or principles that are relevant, and by failing to give consideration to a remedy short of complete exclusion, the decision of the trial judge is not entitled to deference and warrants appellate intervention.
[87] Mr. Alvaro says that exclusion of evidence is an exceptional remedy when a trial judge exercises trial management authority or grants a remedy for failed or late disclosure. Nothing in this case warranted exclusion on either of these grounds. In a similar way, outright exclusion cannot be justified on the basis that receiving the evidence would compromise trial fairness to such an extent that it would infringe ss. 7 and 11(d) of the Charter. Remedies for Charter infringement under s. 24(1) of the Charter must be just and appropriate in the circumstances of the case and this is neither.
[88] Mr. Alvaro contends that the trial judge erred in law in his:
i. assessment of the probative value of Chung’s evidence;
ii. assessment of the prejudicial effect of Chung’s evidence; and
iii. evaluation of where the balance settled between probative value and prejudicial effect.
[89] In determining the probative value of Chung’s evidence, Mr. Alvaro argues, the trial judge erred by failing to take into account that the evidence:
i. included a “confession” to murder that described the means by which the deceased was killed;
ii. rebutted the position advanced by the respondent that Chung killed the deceased;
iii. confirmed other evidence about the lack of prior contact between Chung and the deceased; and
iv. showed the nature of the relationship between Chung and the respondent and thus, to some extent at least, a common motive to kill the deceased.
[90] Mr. Alvaro says further that the trial judge erred in his assessment of the prejudicial effect of Chung’s evidence. Contrary to what the trial judge concluded, Chung’s evidence did not engender either reasoning or moral prejudice. The trial judge’s conclusion that investigators, to some extent the prosecutors, displayed tunnel vision in failing to fully plumb the involvement of Chung was likewise not a factor to be taken into account in assessing the prejudicial effect of admitting Chung’s evidence.
[91] In addition, Mr. Alvaro argues, the trial judge failed to consider any remedy short of exclusion of the sum of Chung’s testimony and evidence derived from it. To the extent each source of potential exclusion is discretionary, partial exclusion was a viable alternative to which the trial judge paid no heed. He could have excluded the alleged confession or evidence of some post-offence conduct, but permitted Chung to provide details of his whereabouts at the material time and his denial of involvement in the killing. The failure to consider some less sweeping exclusion left the jury with an entirely distorted picture on the alternate suspect issue.
[92] For the respondent, Mr. Wilkinson acknowledges that the trial judge made errors in his probative value/prejudicial effect analysis. The proposed evidence did not engender either moral or reasoning prejudice. But in the end, these erroneous considerations had no impact on the result. Exclusion of Chung’s testimony and its derivatives was a just and appropriate remedy for an inadequate investigation and late disclosure that breached the respondent’s right to make full answer and defence to the charge. No remedy short of complete exclusion could vindicate this constitutional infringement.
[93] Mr. Wilkinson says, further, that the appellant should be estopped from raising this ground of appeal, at all events from obtaining a new trial on this basis, because Crown counsel at trial declined the trial judge’s offer of a mistrial that would have permitted the prosecution to reload and recommence proceedings subject to successful opposition to a motion under s. 11(b) of the Charter. Crown counsel’s decision to decline the offer, a strategic, tactical decision according to Mr. Wilkinson, forecloses the remedy of a new trial sought here.
[94] In the end, Mr. Wilkinson submits, even if the trial judge wrongly excluded the evidence and the Crown is not estopped from seeking a new trial because Crown counsel at trial declined the offer of a mistrial, the verdict would necessarily have been the same. Chung was an unreliable witness whose tale of a barren, unsolicited confession and the circumstances in which it was made was incredible. Admitting the evidence would have produced a different script, but the same ending.
The Governing Principles
[95] Several principles inform the decision in connection with this ground of appeal including but not only the scope of the basis upon which a trial judge may exclude relevant, material, and otherwise admissible evidence on grounds of unfairness, late disclosure, or in accordance with the cost-benefit analysis described in R. v. Mohan, [1994] 2 S.C.R. 9. There is also the question of whether what is involved here is a question of law alone, cognizable on an appeal by the Crown under s. 676(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, and the standard and scope of appellate review of a trial judge’s exercise of the exclusionary discretion.
[96] The trial judge’s decision to permit counsel for the respondent at trial to raise the alternate suspect and inadequate investigation issues is not challenged here. That said, some discussion of the principles at work in such cases is of importance in determining whether the ruling on admissibility reflects error.
The Right of Appeal: A Question of Law Alone
[97] In proceedings by indictment, the Crown’s right of appeal from an acquittal entered after trial is limited by the provisions of s. 676(1)(a) of the Criminal Code, to grounds of appeal that involve questions of law alone.
[98] The rules of admissibility, which comprise the chief work of the law of evidence, are rules of law and, by nature, primarily exclusionary. Evidence that is relevant and material, but falls foul of an admissibility rule, is excluded unless it can gain entry by an exception to the exclusionary rule. Decisions on admissibility usually involve questions of law alone, at the very least where the allegation is that the admissibility decision was based on wrong legal principles: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 29.
Exclusion of Evidence to Ensure Trial Fairness: The Common Law Rule
[99] A trial judge has a common law authority to exclude relevant and material evidence on the ground that its admission would render trial proceedings unfair: R. v. Harrer, [1995] 3 S.C.R. 562, at paras. 21, 23, 41, and 42; R. v. White, [1999] 2 S.C.R. 417, at para. 86. This common law admissibility rule has achieved constitutional status because of the s. 11(d) Charter guarantee of a fair hearing: Harrer, at paras. 23-24.
Exclusion of Evidence to Ensure Trial Fairness: s. 24(1) of the Charter
[100] Where evidence proposed for admission at trial has been obtained in a manner that infringed or denied an accused’s constitutional rights or freedoms, the appropriate exclusionary mechanism is s. 24(2) of the Charter. To invoke s. 24(2) an accused must establish the three requirements of the subsection which can be briefly described as:
· infringement;
· nexus; and
· effects.
The requirements are cumulative. The standard of proof required is proof on a balance of probabilities: R. v. Collins, [1987] 1 S.C.R. 265, at pp. 276-277; see also R. v. Therens, [1985] 1 S.C.R. 613; and R. v. Strachan, [1988] 2 S.C.R. 980.
[101] Where evidence has not been obtained by constitutional infringement, however, s. 24(2) of the Charter is unavailable as an exclusionary mechanism. Constitutionally obtained evidence may nonetheless be excluded under the Charter if the introduction of that evidence would render the trial unfair, and thus infringe the fair trial rights of an accused guaranteed by ss. 7 and 11(d) of the Charter. The exclusionary mechanism in such cases is s. 24(1) of the Charter, not s. 24(2): Harrer, at para. 42; White, at para. 89.
[102] Trial fairness is not the exclusive preserve of those charged with crime. A fair trial is a trial that appears fair, not only from the perspective of the accused, the person on trial, but also from the perspective of the community: Harrer, at para. 45; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 22. A fair trial is a trial that satisfies the public interest at getting at the truth, but at the same time preserves basic procedural fairness for the accused: Harrer, at para. 45.; Bjelland, at para. 22.
[103] The remedy of evidentiary exclusion under s. 24(1) is not for the asking. An accused who seeks this remedy must establish a breach of his or her Charter rights: the right to a fair trial in accordance with ss. 7 and 11(d) of the Charter. The remedy of evidentiary exclusion under s. 24(1), like any of the panoply of remedies available under the subsection, is subject to the controlling language of the provision: evidentiary exclusion must be “appropriate and just in the circumstances”. Evidentiary exclusion is only available as a remedy under s. 24(1) in those cases where a less intrusive remedy cannot be fashioned to safeguard the fairness of the trial process and the integrity of the justice system: Bjelland, at para. 19.
Exclusion of Evidence under the Trial Management Power
[104] Trial judges have an expansive, but not unbounded authority to manage the conduct of criminal trial proceedings to promote the efficient use of court time and to ensure fair treatment of all parties involved in the proceedings: R. v. Felderhof (2003), 180 C.C.C. (3d) 498 (Ont. C.A.), at paras. 37 and 57. However, excluding relevant, material, and otherwise admissible evidence under the trial management power is an unusual exercise of that power. Evidentiary exclusion should be reserved for cases in which it is plain and obvious that the circumstances require evidentiary exclusion and that the usual remedies, like a brief adjournment, will not be adequate: R. v. Horan, 2008 ONCA 589, 237 C.C.C. (3d) 514, at para. 33.
Evidentiary Exclusion as a Remedy for Late Disclosure
[105] The Crown’s obligation to make timely disclosure to an accused of all relevant information in its possession is well established at common law and now constitutionally entrenched in the right to make full answer and defence under the Charter: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 14. As a necessary corollary to the Crown’s disclosure duty under R. v. Stinchcombe, [1991] 3 S.C.R. 326, the police (or other investigating state authority) have an obligation to disclose to the Crown all material pertaining to its investigation of the accused: McNeil, at para. 15.
[106] Under our system of law enforcement, the general duty to investigate allegations of criminal conduct falls upon the police. The fruits of a criminal investigation, it follows, are gathered by the police who also determine, often with the benefit of legal advice from the Crown, whether criminal charges will be laid. The Crown obtains the fruits of the investigation because of the corollary duty of police investigators to disclose to the Crown all relevant material in their possession: McNeil, at para. 23.
[107] It does not follow from the disclosure obligations imposed upon the Crown, or the correlative duty imposed upon the police to turn over their fruits of the investigation to the Crown, however, that an accused is entitled to a particular kind of disclosure or assured of a specific form of investigation.
[108] The disclosure obligations of the Crown do not require the production of witnesses for discovery, for example by calling them as witnesses at a preliminary inquiry: R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, at para. 23; R. v. Khela, [1995] 4 S.C.R. 201, at para. 18. Nor does an accused have a constitutional right, as an incident of the right to make full answer and defence or otherwise, to an adequate police investigation of the crime with which she or he is charged: R. v. Darwish, 2010 ONCA 124, (2010), 103 O.R. (3d) 561, at para. 29; R. v. Barnes, 2009 ONCA 432, at para. 1. Further, an accused has no constitutional right to direct the conduct of a police investigation of which she or he is the target or, through a disguised disclosure demand, conscript the police to undertake investigatory work for him or her: Darwish, at para. 30; R. v. Schmidt, 2011 BCCA 3, 151 C.C.C. (3d) 74 (B.C.C.A.), at para. 19. On the other hand, the police and Crown should give serious consideration to investigative requests made on behalf of an accused: Darwish, at para. 30. That said, it is the prosecutorial authorities, not the defence, that bear the ultimate responsibility for determining the course of the investigation: Darwish, at para. 30.
[109] The disclosure right of an accused does not extend so far as to require the police to investigate potential defences: Darwish, at para. 31. Where, however, material and meritorious allegations of state misconduct are advanced as a basis for Charter relief in an ongoing criminal prosecution, a duty to investigate may be imposed: Darwish, at para. 38; see also R. v. Ahluwalia (2000), 149 C.C.C. (3d) 193 (C.A.), at paras. 70-72.
[110] Setting to one side any constitutional impairments that may follow from a failure to investigate various issues raised by an accused, a concurrent prosecutorial failure to adduce evidence to rebut a defence otherwise in play at trial, may result in a reasonable doubt about an accused’s guilt.
[111] A breach of the Crown’s disclosure obligations, without more, does not constitute a breach of s. 7 of the Charter. To demonstrate constitutional infringement, and thus entitlement to a just and appropriate remedy, an accused must show actual prejudice to his or her right to make full answer and defence resulted from the infringement: R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 74; Bjelland, at para. 21.
[112] Breaches of the Crown’s disclosure obligations that amount to a constitutional infringement do not involve obtaining evidence in an unconstitutional way. As a result, remedies for these infringements fall within the compass of s. 24(1) of the Charter, not s. 24(2): Harrer, at paras. 42-43. Remedies under s. 24(1) are flexible and contextual: Bjelland, at para. 18.
[113] Exclusion of evidence may be available as a remedy for constitutional infringement under s. 24(1), provided exclusion is “appropriate and just in the circumstances”. Bjelland, at para. 19. As explained in Bjelland, at para. 24, exclusion of evidence is an exceptional remedy for late disclosure, confined to cases in which:
i. the late disclosure renders the trial process unfair and the unfairness cannot be remedied through an adjournment and disclosure order; or
ii. exclusion is necessary to maintain the integrity of the justice system.
Where a trial judge can fashion an appropriate remedy for late disclosure that does not deny an accused procedural fairness and where admission of the evidence does not otherwise compromise the integrity of the criminal justice system, exclusion of evidence will not be an appropriate and just remedy under s. 24(1): Bjelland, at para. 24.
[114] In most cases of late or inadequate disclosure, the focus of the search for an appropriate and just remedy under s. 24(1) is the remediation of any prejudice suffered by an accused. Safeguarding the integrity of the criminal justice system is also relevant: Bjelland, at para. 26. Admission of evidence despite late disclosure may compromise the integrity of the criminal justice system where an accused is in custody and an adjournment may unduly prolong the proceedings, or where the late disclosure is the product of deliberate Crown misconduct: Bjelland, at para. 27. On the other hand, society’s interest in a fair trial that reaches a reliable determination of guilt or innocence based on all the evidence, especially in cases involving serious crimes cannot be ignored: Bjelland, at para. 27.
Exclusion of Evidence under the General Exclusionary Discretion
[115] A judge presiding in a criminal trial has a well-established discretion to exclude evidence that is relevant, material, and otherwise compliant with the rules of admissibility. This discretion, rather its exercise, involves a cost-benefit analysis, an inquiry into whether the value of the proposed evidence to the correct disposal of the litigation is worth its cost to the litigation process: Mohan, at pp. 20-21. As held in Mohan, at pp. 20-21, a trial judge may exclude evidence in the exercise of this discretion where:
i. the probative value of the evidence is overborne by its prejudicial effect;
ii. the introduction of the evidence would involve an inordinate amount of time not commensurate with its value to the determination of the dispute; or
iii. the evidence is misleading because its effect on the trier of fact, especially a jury, is disproportionate to its reliability as proof.
[116] The application of this general exclusionary discretion in any case in which it is invoked requires a case-specific factual inquiry. Where the balance being assessed involves probative value and prejudicial effect, relevant factors in the assessment of probative value could include the strength of the evidence, the extent to which the facts the evidence tends to establish are at issue in the proceedings, and the extent to which the evidence supports the inferences advanced. An assessment of prejudicial effect may involve considerations like whether the evidence reveals discreditable conduct not charged in the indictment, confusion of issues, the ability of the accused to respond to the evidence, whether the evidence is apt to give rise to an inference of guilt through propensity reasoning, and the efficacy of limiting instructions.
[117] In some cases, for example those that involve evidence of extrinsic misconduct, what is proposed for admission might engender moral prejudice or reasoning prejudice. Moral prejudice is the danger of bad personhood: the risk that an accused will be convicted because of the kind of person the evidence reveals him or her to be, rather than because of what the evidence establishes that she or he did: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31, 100, and 139-142. Reasoning prejudice is the danger that a jury might be confused by the multiplicity of incidents revealed by the evidence and distracted from the core issues in the case: Handy, at paras. 31, 100, and 144-146.
[118] Where the basis on which the exclusionary discretion is invoked is a claim that the prejudicial effect of the evidence exceeds its probative value, the balancing exercise brushes up uncomfortably close to the jury’s function of weighing the evidence. A trial judge, invited to exercise his or her exclusionary discretion on this basis, must be careful not to invade the jury’s territory. In a similar way, in assessing the potential prejudicial effect of evidence, a trial judge must take into account and not underestimate the jury’s ability to understand and follow limiting instructions R. v. Corbett, [1988] 1 S.C.R. 670, at pp. 692-693.
Alternate Suspects and Inadequate Investigation
[119] Although the appellant takes no issue with the trial judge’s ruling that permitted the respondent to advance Chung as an alternate suspect and to challenge the adequacy of the police investigation, principally, but not exclusively, as it related to Chung’s potential involvement in the offence, some features of each “defence” warrant brief discussion.
[120] It is fundamental that if A is charged with the murder of X, then A is entitled, by way of defence, to adduce evidence to prove that B, not A, murdered X: R. v. McMillan (1975), 7 O.R. (2d) 750 (C.A.), at p. 757, affirmed, [1977] 2 S.C.R. 824; R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 46. The evidence on which an accused relies to demonstrate the involvement of a third party in the commission of the office with which the accused is charged must be relevant to and admissible on the material issue of identity: McMillan, at p. 757; Grandinetti, at para. 46.
[121] It is essential that there be a sufficient connection between the third party and the crime, otherwise any evidence about the third party would be immaterial. An accused must show that there is some basis upon which a reasonable jury, properly instructed, could acquit based on the claim of third party authorship: Grandinetti, at paras. 47-48; R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 70. Absent a sufficient connection, the “defence” of third party authorship lacks an air of reality and cannot be considered by the trier of fact: Grandinetti, at para. 48.
[122] Where the “defence” of third party authorship is in play at trial, it is open to the Crown, as with other defences advanced on an accused’s behalf, to introduce evidence that rebuts the claim that a third party committed the offence. The evidence may take various forms and originate in different sources. The Crown’s rebuttal must be relevant to and admissible on this material issue: see e.g. R. v. Mullins-Johnson (1996), 112 C.C.C. (3d) 117 (Ont. C.A.), at pp. 123-124, affirmed, [1998] 1 S.C.R. 977; R. v. Parsons (1993), 84 C.C.C. (3d) 226 (Ont. C.A.), at p. 238; and McMillan, at pp. 767-768.
[123] The “defence” of inadequate investigation may be related to but can be discrete from a claim of third party authorship. The decision by an accused to attack the integrity of the police investigation of the offence charged is a permitted, but risky strategy. The risk involved is that, by invoking the strategy, the accused will make relevant, material, and admissible, evidence that would never have seen the light of day if tendered by the Crown as part of its case in-chief: R. v. Dhillon (2002), 166 C.C.C. (3d) 262 (Ont. C.A.), at para. 51; and R. v. Mallory, 2007 ONCA 46, (2007), 217 C.C.C. (3d) 266, at para. 87. Included among the evidence that may be made admissible is investigative hearsay, albeit subject to instructions about its limited use: Dhillon, at para. 51; Mallory, at para. 92; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 184; and R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 33. To deny the Crown the right to adduce evidence to rebut a claim of inadequate investigation, as with the “defence” of third party authorship, would be to leave an entirely distorted and incomplete picture with the jury.
The Scope of Appellate Review
[124] To the extent that a ground of appeal has to do with a determination that involves the exercise of judicial discretion, appellate courts are to accord a significant degree of deference to the decision made at first instance. For example, a high degree of deference is accorded the decision of a trial judge that balances the probative value of evidence against its prejudicial effect: R. v. B. (C.R.), [1990] 1 S.C.R. 717, at pp. 733-734; Handy, at para. 153; and R. v. Arp, [1998] 3 S.C.R. 339, at para. 42. It is of no moment to the scope of appellate review whether this balancing of probative value and prejudicial effect takes place in the context of evidence of extrinsic misconduct tendered as part of the Crown’s case in-chief, or, as here, in response to a claim of inadequate investigation.
[125] Similar deference is accorded decisions of trial judges about the choice of remedy that is “appropriate and just” under s. 24(1) of the Charter. As with any discretion, the discretion conferred by that subsection must be exercised judicially. Appellate courts are entitled to intervene where the trial judge has misdirected him or herself, or where the trial judge’s decision is so clearly wrong that it amounts to an injustice: Bjelland, at para. 15; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 117-118.
The Principles Applied
[126] Before examining the merits of this, the principal ground of appeal, it is helpful to clear away two related decisions made by the trial judge that are not in issue here.
[127] First, the appellant acknowledges, as did counsel for the Crown at trial, that an alternate suspect issue was in play in this case. Accordingly, the respondent was entitled to adduce relevant and admissible evidence that tended to show that Chung killed the deceased.
[128] Second, the appellant accepts that the trial judge rightly concluded that an inadequate investigation issue was also in play here in connection with the investigation of Chung as an alternate suspect, if not the actual killer. Thus, it was open to the respondent to adduce relevant and admissible evidence before the jury that tended to show the inadequacy of the police investigation of Chung’s potential involvement in the killing of the deceased.
[129] What the appellant contests is the correctness of the trial judge’s ruling that prohibited the Crown at trial from calling Chung as a witness and adducing evidence derived from Chung’s testimony to rebut evidence adduced by the respondent that tended to show Chung killed the deceased.
[130] For reasons that I will develop, I agree with the appellant that the trial judge’s ruling reflects error on this issue.
[131] In his lengthy pre-trial ruling, the trial judge referred to three rules of admissibility each of which involves the exercise of judicial discretion:
i. exclusion to ensure trial fairness;
ii. exclusion as a remedy for late disclosure; and
iii. exclusion of evidence on the basis that its prejudicial effect exceeded its probative value.
The reasons do not refer, at least in terms, to the authority to exclude evidence under the trial management power. That authority, and those listed as items “i” and “ii” above, share common features, thus it is unnecessary to canvass the availability of the trial management power as an exclusionary mechanism in this case.
Exclusion to Ensure Trial Fairness
[132] The first basis upon which the trial judge grounded his exclusion of the evidence is expressed in these terms:
In my view, it is just and appropriate to exclude the testimony of Mr. Chung, and any evidence derived from it, to ensure the fairness of the defendant’s trial.
[133] The trial judge described several factors that underpinned his conclusion:
i. the lack of a diligent and timely investigation of Chung as an alternate suspect;
ii. the ongoing investigation of the respondent and his contacts with Chung through the use of “electronic modalities” and the uncertainty of when the investigation would be completed;
iii. the lack of opportunity for the respondent’s counsel at trial to consider recent Crown disclosure; and
iv. the lack of objectivity and unjustifiable disparity in the investigative and prosecutorial treatment of the respondent and Chung.
[134] The language used and the factors considered by the trial judge in excluding the testimony of Chung and its derivatives appear to be an amalgam of two exclusionary rules:
· exclusion to ensure trial fairness, a common law rule now constitutionalized under ss. 7 and 11(d) in the Charter; and
· exclusion as a remedy for failed or late disclosure of information relating to the investigation of Chung.
Each rule involves the exercise of judicial discretion.
[135] I acknowledge at the outset that the scope of appellate review of the exercise of judicial discretion is narrowly and rightly confined, all the more so when the right of appeal invoked is limited to a question of law alone: R. v. B.(L.) (1997), 35 O.R. (3d) 35 (C.A.), at p. 59. That said, I am satisfied that the trial judge erred in law in excluding Chung’s testimony and evidence derived from it on this basis. Read as a whole, the reasons on this issue reflect self-misdirection on the governing legal principles.
[136] The trial judge did not have the benefit of the guidance provided by the Supreme Court of Canada in Bjelland when he made his ruling on March 2, 2009. Several principles emerge from Bjelland that are critical to an assessment of the correctness of the trial judge’s ruling.
[137] First, a failure to disclose, as well delayed or late disclosure, without more, does not violate the right of an accused to a fair trial. As a general rule, an accused must go further to show actual prejudice to his or her right to make full answer and defence: Bjelland, at para. 21; O’Connor, at para. 74. Absent an infringement of the right to make full answer and defence, no infringement of either s. 7 or s. 11(d) of the Charter has occurred, thus the critical condition precedent to the operation of s. 24(1) as an exclusionary mechanism remains unsatisfied and access to the remedy s. 24(1) provides is unavailable.
[138] Second, evidentiary exclusion is an exceptional remedy for failed or late disclosure, available only where the late disclosure renders the trial unfair and cannot be remedied by an adjournment and disclosure order, or where exclusion is necessary to preserve the integrity of the justice system: Bjelland, at para. 24.
[139] Third, the appropriate focus in most cases of failed or late disclosure is remediation of any prejudice caused to the accused, as well as safeguarding the integrity of the justice system: Bjelland, at para. 26. Neither is necessarily secured by evidentiary exclusion.
[140] Fourth, in some cases, an adjournment and disclosure order may not be appropriate because the admission of evidence compromises the integrity of the justice system. Evidentiary exclusion may be appropriate where the Crown has withheld evidence by deliberate misconduct amounting to an abuse of process. On the other hand, even in such cases, society’s interest in a fair trial that reaches a reliable determination of an accused’s innocence or guilt on all the available evidence cannot be ignored, especially where the crime charged is serious: Bjelland, at para. 27.
[141] Finally, the fair trial interest is not the exclusive preserve of the accused. A trial must be fair, not only from the perspective of the accused, but equally from the perspective of society generally: Bjelland, at para. 22. A fair trial is a trial that satisfies the public interest at getting at the truth, at the same time preserving basic procedural fairness for the accused: Harrer, at para. 45.
Exclusion as a Remedy for Late Disclosure
[142] The trial judge appears to have concluded that late disclosure, on its own, violated the respondent’s right to a fair trial and warranted exclusion of Chung’s testimony and any evidence derived from it. However, following Bjelland and O’Connor, the respondent was also required to show late disclosure caused actual prejudice to his ability to make full answer and defence: Bjelland, at para. 21; O’Connor, at para. 74.
[143] The trial judge does not appear to have considered the exceptional nature of evidentiary exclusion as a remedy for late disclosure. As Bjelland makes clear, evidentiary exclusion is reserved for those cases in which the usual remedy (an adjournment and disclosure order) would not be adequate or where exclusion was necessary to maintain the integrity of the justice system. Neither applied here.
[144] Further, the trial judge does not appear to have considered the bilateral nature of the fair trial interest in concluding that the exclusion of the entirety of Chung’s evidence and its derivatives was just and appropriate in the circumstances. An accused does not have the exclusive right to a fair trial.
[145] The trial judge does not appear to have considered any evidentiary exclusion short of an absolute bar of all the evidence from Chung and all the evidence derived from Chung’s testimony. The effect of this ruling was to permit the respondent to raise an alternate suspect defence (“Chung did it”) and adduce evidence about the inadequacies of the police investigation, yet deny the Crown the opportunity to adduce the evidence of the alternate suspect to rebut the claim he killed the deceased. Chung’s evidence could have been restricted, for example, by excluding evidence of the respondent’s “confession” with the result that the jury would be better positioned to decide whether Chung’s alleged participation, or the inadequacy of the police investigation, raised a reasonable doubt about the respondent’s guilt. Permitting Chung to give evidence would not have deprived the respondent of his right to advance the alternate suspect and inadequate investigation issues before the jury and to adduce evidence in support of each. Excluding Chung’s evidence forced the jury to make that decision on a distorted and incomplete evidentiary foundation.
[146] The trial judge appears to have implicitly held that the respondent had a constitutional right to an adequate investigation of the case against him, including an investigation to determine whether the offence was committed by Chung.
[147] The trial judge did not have the benefit of the reasons of this court in Darwish according to which an accused has no free-standing constitutional right to an adequate investigation of the case against him. Inadequacies in an investigation may lead to the ultimate failure of the prosecution, to the specific breach of a Charter right, or to a civil remedy, but, on their own, do not constitute a denial of the right to make full answer and defence: Darwish, at para. 29.
[148] Any error in excluding the evidence of Chung and its derivatives on the ground of trial fairness, or as a remedy for late disclosure, is beside the point if the trial judge was correct in excluding the evidence on the ground that its prejudicial effect exceeded its probative value. It is to that basis of exclusion that I turn next.
Exclusion under General Exclusionary Discretion
[149] The trial judge considered the Chung evidence, as a whole, to be of slight probative value. He described it as “fragile” evidence, not confirmed by any independent evidence, which spawned “many contradictory inferences” and raised “the spectre of the miscarriage of justice”.
[150] In his analysis of the prejudicial effect of the Chung evidence, the trial judge referred to:
i. the possibility of reasoning and moral prejudice against the respondent;
ii. the increased complexity of the trial;
iii. the danger of unfair surprise because the Crown failed to call the evidence at the preliminary inquiry and the police failed to conduct a timely collateral investigation; and
iv. the likelihood of an adjournment of trial proceedings and a further delay of one year before the trial could begin again with a serious risk that proceedings would be stayed under s. 11(b) of the Charter.
[151] In my respectful view, the trial judge’s evaluation of the probative value and prejudicial effect of the Chung evidence as a whole, and his determination that the preponderance of prejudicial effect over probative value warranted exclusion of the evidence as a whole, constituted legal error.
[152] First, in his assessment of the probative value, the trial judge focussed almost exclusively on that portion of Chung’s testimony in which Chung recounted the purported “confession” of the respondent to the killing of the deceased. But there was more to Chung’s testimony than the elicitation of the respondent’s alleged “confession”. Chung’s denial of responsibility and his explanation of his activities at the relevant time had probative value in rebuttal of the respondent’s claim that Chung was the killer, even if the “confession” part of his evidence were excluded. Put differently, Chung’s testimony and the derivative evidence was relevant and had probative value in relation to the alternate suspect defence advanced by the respondent.
[153] Second, in his determination of the prejudicial effect of this evidence, the trial judge considered that the evidence generated moral and reasoning prejudice. Moral prejudice refers to the stigma of bad personhood. Reasoning prejudice relates to the prospect that the introduction of evidence will confuse the trier of fact and distract it from an informed consideration of the issues raised at trial.
[154] The introduction of the Chung evidence would neither have created nor enhanced moral or reasoning prejudice. A substantial body of evidence had already been admitted about the respondent’s activities in the illicit drug trade and his association with Chung and the deceased. It was the respondent who introduced the alternate suspect issue and challenged the adequacy of the police investigation, especially as it related to Chung. The responsive evidence from Chung would not have involved anything new or different from what had already been introduced without objection.
[155] Third, whether the police investigation of Chung was inadequate and whether the investigation of the appellant was a product of “tunnel vision” were not relevant factors in the cost benefit analysis required in connection with the probative value and prejudicial effect of the Chung evidence.
[156] Fourth, the “unfair surprise” factor that the trial judge considered in his cost benefit analysis appears grounded, at least in part, on an adverse inference the trial judge drew from the failure of the Crown to call Chung at the preliminary inquiry and of the police to conduct a timely collateral investigation.
[157] The Crown was under no obligation to call Chung at the preliminary. The failure to do so can sponsor no adverse inference, much less be a factor to consider in assessing the probative value or prejudicial effect of the Chung evidence. The inadequacy of the police investigation was advanced as a basis upon which the jury may have a reasonable doubt about the adequacy of the Crown’s proof of the respondent’s guilt. The admissibility issue that required a decision related to the probative value/prejudicial effect balance of evidence responsive to the related claims that Chung was the killer and the police investigation was inadequate. To assign these factors a place of influence is to confuse a rule of admissibility with a substantive “defence”.
[158] The trial judge erred in excluding the Chung evidence in its entirety.
[159] This ground of appeal requires consideration of the correctness of a jury instruction about the basis upon which the respondent’s liability was to be determined. The instruction, repeated several times, attracted objection from both counsel at trial, but no further elucidation by the trial judge.
[160] Some reference to the evidence adduced at trial and the positions advanced by the parties there is necessary to situate this claim of error in its proper place.
[161] It was common ground at trial that each of the respondent and Chung had an equivalent motive and opportunity to kill the deceased. The parties were also of one mind that each engaged in conduct after the deceased was killed that could be used as circumstantial evidence of their involvement in it. In the circumstances, the jury could also infer that, rather than single authorship, the respondent and Chung together killed the deceased.
[162] The forensic pathologist who conducted the post-mortem examination testified that the deceased had been stabbed 12 times with at least one sharp object of a particular dimension. The doctor could not exclude the involvement of more than one knife with similar dimensions, thus could not confirm the number of stabbers or deny that more than one person could have been involved in the killing.
[163] Evidence admitted at trial could support a finding that Chung and the respondent were involved in the drug business and frequently communicated with one another. Although the deceased may have met Chung briefly, there was no evidence of any dealings of substance between them.
[164] At the pre-charge conference, counsel and the trial judge discussed the basis of liability, more accurately, the modes of participation to be left for the jury’s consideration.
[165] Trial counsel for the respondent contended that there was no air of reality to support an instruction on co-principals. The evidence adduced at trial was entirely circumstantial. Each of the respondent and Chung had motive and opportunity and said and did things afterwards that could support an inference that one or the other killed the deceased. But the evidence was incapable of supporting an inference of joint participation.
[166] The respondent’s counsel at trial agreed that the jury did not need to decide the extent of Chung’s involvement, but rather needed to be satisfied beyond a reasonable doubt only that the respondent was a principal in the killing. There was no evidence upon which the jury could conclude that the respondent was an aider or an abettor of Chung, nor was there any evidence that more than one weapon was involved. Counsel sought an instruction that if the jurors were unable to decide whether the respondent or Chung killed the deceased, the respondent was entitled to an acquittal.
[167] The trial Crown sought an instruction that left the respondent’s liability to the jury on the basis that he was a co-principal with Chung in the killing of the deceased. She also sought an instruction that permitted the jurors to find the respondent guilty as a principal with Chung as his helper.
[168] The trial Crown noted that the pathologist could not exclude the involvement of more than one person in the stabbing of the deceased. The Crown contended that there was evidence of pre-concert, since both Chung and the respondent were involved in cocaine transactions. Each had an equivalent opportunity and motive to kill the deceased and said and did things afterwards that confirmed their participation in the killing.
[169] The trial Crown expressly disavowed reliance on s. 21(2) of the Criminal Code as a basis of liability and conceded that there was no air of reality to a submission that the respondent participated as an aider or abettor.
[170] The trial judge refused to instruct the jury that the respondent could be found guilty as a co-principal. He concluded:
In my view, looking at the evidence as a whole, there is no evidence that the 12 stab wounds were inflicted by more than one person. Therefore, there will be a charge like Schell and Paquette, and the submissions of counsel will have to be cast accordingly.
[171] The trial judge directed the trial Crown that, in her closing address, she was to take the position that only one person stabbed the deceased to death and that person was the respondent.
[172] In his final instructions to the jury, the trial judge canvassed the the positions of the parties and reviewed the evidence on which each relied to support their position. In accordance with his earlier ruling and direction to the trial Crown, the trial judge told the jury that the Crown’s position was that the respondent killed the deceased.
[173] On at least four separate occasions during his lengthy charge, the trial judge instructed the jury in these or similar terms:
The identity of Kelly Spackman as the person who killed Alexander Christoff must be proven beyond a reasonable doubt before a verdict of guilty is proper as a matter of law against him. In this case, members of the jury, there is no evidence that more than one person stabbed Alexander Christoff twelve times. Thus, you will deliberate on the issue of whether or not the Crown has proven beyond a reasonable doubt that Kelly Spackman was the person who stabbed Alexander Christoff twelve times. The mere presence of a person, such as Kelly Spackman or Mr. Chung, at the scene of a crime does not make a person guilty of the crime. If, after reasonable and thorough deliberations, you are unable to determine whether Kelly Spackman or Mr. Chung stabbed Alexander Christoff twelve times, you must return a verdict of ‘Not Guilty’. The Crown must prove, beyond a reasonable doubt that Mr. Chung was not the person who stabbed Alexander Christoff twelve times.
[174] For the appellant, Mr. Alvaro says that the excerpted instruction, based on R. v. Schell and Paquette (1977), 33 C.C.C. (2d) 422 (Ont. C.A.), should not have been given. The instruction should only be given in cases in which there is no evidence of a joint venture and the evidence indicates that one of two persons committed the offence. In those circumstances, and only in those circumstances, is it correct to instruct the jury that if they cannot determine which of the two persons committed the offence, they are to find both (or the one on trial) not guilty.
[175] Mr. Alvaro submits that the Schell and Paquette instruction is not required, or correct in all cases in which two persons are said to be the killer. In this case, the Crown’s position was that the respondent killed the deceased. The Crown never suggested that the respondent did so without any help, only that the respondent was guilty as a principal irrespective of the involvement of Chung.
[176] Mr. Alvaro contends that the trial judge’s direction to the Crown and the final instructions forced a reconfiguration of the Crown’s position and had the effect of telling the jury to find the respondent not guilty if they had a reasonable doubt about Chung’s involvement in the killing.
[177] For the respondent, Mr. Wilkinson acknowledges that, by withdrawing a co-principal basis of liability from the jury, the trial judge erred. The trial judge was wrong when he decided that a jury finding that the respondent and Chung were co-principals in the stabbing would be speculative, incapable of support by reasonable inferences drawn from the evidence adduced at trial. The trial judge appears to have imposed limits on inference-drawing that were inapplicable and appropriate only to curtail the scope of expert opinion evidence. There was an air of reality to the co-principal’s basis of liability and it should have been left to the jury.
[178] Mr. Wilkinson says that the effect of the jury charge on this issue was that if the jury had any doubt about Chung’s participation, they were required to find the respondent not guilty unless they concluded that Chung was simply a witness or assisted the respondent after the killing had occurred. According to Mr. Wilkinson, the jury should have been told that if they accepted the evidence implicating both the respondent and Chung, they could convict the respondent without having to decide Chung’s precise conduct.
[179] Mr. Wilkinson submits, however, that despite the error in the instruction on the liability of co-principals, this ground of appeal should fail. The trial judge offered the trial Crown the option of a mistrial at the conclusion of his jury instructions. The Crown declined to accept the trial judge’s offer and should be estopped from the remedy of a new trial to advance a new or alternative theory of liability. In any event, the evidentiary foundation for co-principals’ liability barely met the air of reality test and does not satisfy the standard required for an appeal from an acquittal to succeed.
[180] A person can become a party to an offence in different ways. He or she may be a principal, aid or abet someone else to commit the offence, or join and pursue a common unlawful purpose with another or others who commit the offence. A person may be a principal alone or along with another or other persons.
[181] Section 21(1)(a) of the Criminal Code governs the liability of principals. The provision applies where two or more people “actually commit” an offence and makes both persons individually liable for that crime. The provision also applies where two or more persons together form an intention to commit an offence, are present at its commission, and contribute to it, although each does not personally commit all the essential elements of the offence. Provided the trier of fact is satisfied beyond a reasonable doubt that an accused committed all elements of a crime, it is of no moment whether another person may also have committed it: R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 63.
[182] Sometimes, the involvement of a person or persons other than the accused in the circumstances of the offence may be clear, but the extent of their involvement may be uncertain. In other cases, uncertainty about the involvement of another may not matter to the liability of the accused whom the trier of fact is satisfied committed all the elements of the crime: Pickton, at paras. 62-63.
[183] Co-principal liability for concurrent acts of two or more persons often arises in prosecutions for murder or manslaughter. Two or more people each individually beat or stab the victim. The victim dies. It may be unclear which attack caused the victim’s death as opposed to other injuries. Legal principle does not require the trier of fact to determine who struck the “fatal blow” for co-principal liability to attach to each participant. Whether this wound or that, or some combination of the two, caused the victim to die is of no concern for co-principal liability, provided both assaults are found to be a “significant contributing cause” of death: Pickton, para. 66; R. v. Ball, 2011 BCCA 11, (2011), 267 C.C.C. (3d) 532, at para. 28.
[184] Where evidence admitted at trial properly supports an alternate mode of participation under s. 21 of the Criminal Code, an instruction on that provision should be left to the jury, even though the identity of the other participant or participants is unknown, and even though the precise part played by each may be uncertain: Pickton, at para. 58. In these cases, the jury need not be unanimous on the nature of an accused’s participation in an offence, provided all are satisfied that the accused committed the offence in one way or another: Pickton, at para. 58; R. v. Thatcher, [1987] 1 S.C.R. 652, page 694.
[185] In prosecutions of a single accused in which the evidence provides an air of reality for a submission that more than one person was involved, a trial judge may instruct the jury about modes of participation other than sole principal even though the identity of the other participants may be unknown and the precise part played by each maybe uncertain: R. v. Sparrow (1979), 51 C.C.C. (2d) 443 (Ont. C.A.), at pp. 457-458; R. v. Isaac, [1984] 1 S.C.R. 74, at p. 81. On the other hand, where the evidence fails to provide an air of reality to the claim of another’s involvement, an alternative mode of participation should not be left for the jury’s consideration: Sparrow at p. 458.
[186] In Schell and Paquette, the deceased, a child of three, died as a result of a subdural hematoma that destroyed the vital centres of her brain. The usual causes of the kind of injury suffered by the deceased were one or more blows to the head involving the application of considerable force, or a violent shaking of the head. There was no direct evidence about how the fatal injury had been inflicted. The deceased had also suffered a number of other injuries over an extended period of time but none contributed to her death. Schell and Paquette were the only persons who had custody and control over the deceased at the material time. Each had mistreated the deceased on earlier occasions. Schell denied killing the deceased. Paquette did not testify.
[187] The trial judge did not instruct the jury on s. 21(2) of the Criminal Code and mentioned ss. 21(1)(b) and (c), but pointed out that there was no evidence of aiding or of abetting. It was in those circumstances that Zuber J.A., on behalf of the court, concluded that the jury should have been instructed that they should convict one or the other and, if they could not decide which, should acquit both: Schell and Paquette, at p. 428.
[188] The parties agree that the trial judge erred in including in his charge the instruction that forms the subject matter of this ground of appeal, but they differ about the impact of the error on the jury’s verdict of acquittal. I will explain why I agree with the parties that the impugned instruction should not have been included in the jury charge in the circumstances of this case.
[189] In this case, the respondent and Chung were involved together in the supply of controlled substances. The deceased was a purchaser, who was out about $30,000 that he paid the respondent in advance for drugs that the respondent failed to deliver. The deceased had made some threats to the respondent about what might happen if either the drugs or a refund of the purchase price was not forthcoming.
[190] Chung and the respondent were both in the immediate vicinity of where the deceased’s body was found at about the time the deceased was killed. Their subsequent conduct and repeated contact confirmed the closeness of their relationship. Evidence of their common motive, equivalent opportunity, and subsequent association left open an inference of a common venture.
[191] The trial judge’s conclusion that the cumulative effect of the evidence could not sustain an inference that the respondent and Chung were co-principals in the killing rests, in part at least, on his determination that the opinion evidence of the forensic pathologist excluded participation by more than one person in the killing. This determination, in turn, originates in either a misapprehension of the evidence of the pathologist, or a misapplication of the principles governing the admissibility of expert opinion evidence to the determination of whether the evidence, as a whole, could support an inference that more than one principal was involved in the killing.
[192] The forensic pathologist could not exclude the involvement of two knives or other cutting instruments of similar dimensions. The wound dimensions could not be definitive on the issue. Nor could the pathologist say how many persons were involved in the stabbing. Speculation is no more the province of an expert than it is of any other witness.
[193] On the other hand, whether there is an air of reality to submit a mode of participation to the jury for their consideration is a function of the cumulative effect of the evidence and the availability of the essential inference as one of the field of inferences available on the evidence as a whole.
[194] The availability of an inference of joint participation distinguishes this case from Schell and Paquette and, as the parties agree, renders the instruction required there inappropriate here. The jury should have been told that if they were satisfied that both participated in the killing of the deceased, they could convict the respondent, without having to decide Chung’s precise role, as long as they were satisfied that the respondent’s participation satisfied the essential elements of the offence charged: Pickton, at para. 63.
[195] In the result, the misdirection left the respondent’s liability to be determined on a basis that excluded a mode of participation available on the evidence. I will examine the impact of this misdirection after my discussion of the remaining grounds of appeal.
[196] This ground of appeal challenges a ruling made by another judge (“the reviewing judge”) who heard and decided an application that invoked the decision in R. v. Garofoli, [1990] 2 S.C.R. 1421 in connection with an authorization to intercept private communications. As a result of the motion judge’s decision, several intercepted private communications that the Crown proposed to introduce at trial were ruled inadmissible because of a violation of s. 8 of the Charter.
[197] Some additional background is necessary to permit an adequate examination of this ground of appeal.
[198] At trial, the Crown proposed to adduce evidence of 16 intercepted private communications. Nine calls were offered to demonstrate the relationship between the respondent and Chung, an association that involved the supply of drugs to others. Seven calls were tendered to establish things done and said by the respondent after the killing of the deceased.
[199] Counsel for the respondent at trial contended that the supportive affidavit of Det. Sgt. Saunders failed to satisfy the investigative necessity requirement in s. 186(1)(b) of the Criminal Code and was deliberately misleading in its claim that potential witnesses would not co-operate in providing information to investigators for fear of reprisal. Trial counsel also argued that the authorizing judge erred in relying on unsworn answers provided by the affiant during the ex parte application in satisfaction of the statutory conditions precedent to be met before authorization may be given.
[200] The affidavit filed in support of the application for the authorization identified both the respondent and Chung, among others, as “Primary Persons of Interest” and sought authority to intercept their private communications, along with those of other known and unknown persons, in respect of the offence of first degree murder and related preliminary and consequential offences.
[201] The affidavit recites the various orders requested, provides an overview of the investigation, then continues with a detailed, 160-page History and Chronology of the Investigation that describes what investigators had done and found out during the six-week period after the deceased’s body was found.
[202] In the final 30 pages of the affidavit, Det. Sgt. Saunders summarized the grounds for his belief that interception of the private communications of the named objects, including the respondent and Chung, would assist in the investigation by providing evidence of the listed offences. The officer then described the other investigative techniques that had been tried and failed or were unlikely to succeed. Among the other investigative techniques described are these:
i. informants/Crime Stoppers tips;
ii. undercover officers;
iii. search warrants/production orders;
iv. dialled number recorders;
v. surveillance;
vi. canvass and search of crime scene;
vii. tracking warrant;
viii. interviews;
ix. forensics;
x. photographic line ups; and
xi. public appeal.
For each technique, the affiant explained briefly why it had not been tried or, if tried, why it had failed to provide evidence that tended to show where the deceased was killed and who killed him.
[203] The authorizing judge, who was neither the reviewing judge nor the trial judge, released an endorsement in which he recorded his findings under s. 186(1) of the Criminal Code. In connection with the investigative necessity requirement, the authorizing judge concluded:
[3] I am also satisfied that the second ground of investigative necessity set out in section 186 exists in this case. Specifically, I am satisfied that other investigative procedures have been tried and have failed to garner the evidence necessary for a successful prosecution and, as well, that those other investigative procedures are unlikely to succeed in producing such evidence. As I have already mentioned, other investigative procedures have been employed in this case and have yielded some results. Indeed, they may still produce further results. However, the evidence filed makes it clear that those investigative procedures by themselves will not succeed in obtaining the required evidence to pursue charges with any reasonable chance of success. Part of this reality arises from the apparent reluctance of individuals with knowledge to come forward with information given their concern as to possible retaliation against any witnesses. Some of these individuals may also be reluctant to come forward given they themselves may have been involved in criminal activity, namely, the sale and or use of illegal drugs. The investigation is further complicated by the lack of certainty regarding the actual scene of the crime, which is believed to be different from the scene where the body of Mr. Christoff was found, the [consequent] lack of direct forensic evidence and the lack of any known eyewitnesses to the actual event.
[4] The offence which is being investigated is the most serious of offences. The problems facing the investigation, taken with the affidavit material detailing the results of the investigation to date, establishes to my satisfaction the requirement of investigative necessity and also establishes that there is no other reasonable alternative method of successfully investigating these particular crimes – see R. v. Araujo, [2000] 2 S.C.R. 992.
[204] The reviewing judge set aside the authorization on the basis that the supportive affidavit failed to establish the investigative necessity requirement in s. 186(1)(b). He also excluded the intercepted private communications that Crown counsel proposed to adduce in evidence. This exclusion was based on s. 24(2) of the Charter because the interception process had offended s. 8.
[205] The reviewing judge identified several deficiencies in the police investigation and in the affiant’s explanation for the failure of other investigative procedures to yield evidence about who killed the deceased. The deficiencies included:
i. the failure of police to search the respondent’s vehicle on March 15, 2005, within a week of discovery of the deceased’s body, despite the respondent’s consent to the search;
ii. the unexplained failure of police to investigate several witnesses with material information to provide;
iii. the affiant’s conclusory assertions, unsupported by any specific allegations, that fears of reprisal on the part of some members of the drug culture rendered their accounts incomplete and unhelpful;
iv. the affiant’s conclusory assertions that persons with knowledge of material circumstances declined to provide that information because of their affections for some of the principals; and
v. the affiant’s unsupported and conclusory statements about the reluctance of those with criminal antecedents to co-operate with investigators.
[206] In the end, the reviewing judge concluded that the affidavit had failed to satisfy the investigative necessity requirement for two reasons:
[85] For the foregoing reasons, I find that the requirement of investigative necessity was not made out due to the failure of the police to interview, at the very least, Messrs. Pistore, Chu, Powell and Seraphim. Additionally, I am troubled by the failure of the police to accept Mr. Spackman’s offer to search his car. But I reject the other arguments advanced by Mr. Lacy as reasons to find that the requirement of investigative necessity was not satisfied.
[207] The reviewing judge added some comments about the affiant’s motivation:
[86] The gravity of the failure to interview is exacerbated by the fact that D. Sgt. Saunders made assertions that were unsupportable on the evidence. At best, he was reckless with the truth; at worst, he made these comments in order to mislead the authorizing Justice.
[87] In short, I accept Mr. Lacy’s submission that, in seeking the Part VI authorization, D. Sgt. Saunders was motivated not by investigative necessity but rather by investigative efficacy. In cross-examination at the preliminary inquiry on October 3, 2006, D. Sgt. Saunders indicated a marked preference for wiretaps over interviews:
Well, throughout the past history and in other cases where I have dealt with circumstances along those lines I find that whenever people are talking over the telephone to one another versus interviews that they provide the police before to be more truthful and in fact that is exactly what did come to surface as a result of that particular interpretations [sic]. [Emphasis added.]
While not entirely clear, it appears that the reference to “circumstances along those lines” refers to situations where D. Sgt. Saunders thought that witnesses were being less than truthful with the police.
[208] The reviewing judge rejected the submission advanced by the respondent’s counsel at trial that the authorization was also vitiated because the authorizing judge had relied upon unsworn answers provided by the affiant when he appeared before the authorizing judge. The reviewing judge was satisfied that the unsworn answers provided by the affiant repeated information contained in the affidavit itself.
[209] The reviewing judge expressed his conclusions for setting aside the authorization in these terms:
[96] D. Sgt. Saunder’s opinion that the requirement of investigative necessity under s. 186 of the Code was met in the circumstances of the case lacked an adequate factual basis. Indeed, for the reasons outlined above, his unsubstantiated, misleading claims about potential witnesses’ fear of reprisal constituted, at best, a reckless disregard for the truth, if not an outright fraud. Moreover, there can be no question that these claims influenced the authorizing Justice’s determination that the condition precedent of investigative necessity had been satisfied. Indeed, paragraph 3 of his endorsement makes it clear that this was the principal reason he concluded that further interviews would not obtain “the required evidence to pursue charges with any reasonable chance of success.”
[97] Given the nature of these misrepresentations and the role they played in the authorizing Justice’s decision, it cannot be said that, in their absence, the authorization would nonetheless have been given. Consequently, the authorization of April 27, 2005 is set aside.
The Arguments on Appeal
[210] For the appellant, Mr. Alvaro acknowledges that, as he began his reasons, the reviewing judge correctly stated the test to be applied. But in the end, Mr. Alvaro says, the reviewing judge erred in the application of the test.
[211] Mr. Alvaro submits that the critical component here was the requirement of investigative necessity. The issue for the reviewing judge to decide was whether, on the record before the authorizing judge, as amplified on the review, there was reliable information on the basis of which the authorizing judge could conclude that there were no other reasonable investigative alternatives to authorize interceptions in the circumstances of the criminal inquiry. Investigators were not required to exhaust every other potential form of investigation. What happened here is that the reviewing judge engaged in a microscopic dissection of the investigation, an exercise that he was not entitled to pursue.
[212] Mr. Alvaro says that the reviewing judge exceeded his authority by weighing and reconsidering de novo the evidence before the authorizing judge as amplified on the review. The reviewing judge discounted the fears of reprisal expressed by some on police interview, despite evidence to the contrary, as well the unwillingness of those involved in criminal conduct to co-operate with investigators. The reviewing judge failed to consider the contents of the affidavit as a whole and drew unsubstantiated inferences about the affiant’s state of mind.
[213] For the respondent, Mr. Wilkinson submits that the reviewing judge did not err in his application of the test on review, but, even if he did make a mistake, it all comes to naught in the circumstances of this case.
[214] Mr. Wilkinson reminds us that we are to accord deference to the decision of the reviewing judge, just as he was to accord deference to the conclusions of the authorizing judge. The reviewing judge was well within his authority to find, and did find on the evidence before him, that there was no evidence on the basis of which the authorizing judge could have found that the test of investigative necessity had been met. Investigative expediency is not investigative necessity. The flaws identified by the reviewing judge were fatal to a display of investigative necessity. The conclusory statements of the affiant about the efficacy of other investigative procedures were at once inadequate and misleading.
[215] Mr. Wilkinson says that this is a case of no harm, no foul, even if the reviewing judge was wrong. The substance of much of what the intercepted private communications were offered to prove was contained in an Agreed Statement of Facts filed at trial and what remained could have been established by calling as witnesses at trial (if available) those whose calls were intercepted to give viva voce evidence of what was said. The Crown failed to do so and sought to re-open its case too late in the proceedings to warrant reception of the evidence.
The Governing Principles
[216] The principles that govern our determination of this ground of appeal are not in controversy.
[217] The investigative necessity requirement enacted by s. 186(1)(b) of the Criminal Code is established if the supportive affidavit demonstrates that, practically speaking, no other reasonable alternative method of investigation is available, in the circumstances of the particular criminal inquiry: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 29. The requirement must be interpreted in a practical common sense fashion. Judges may issue authorizations under s. 186(1) of the Criminal Code even when police have not pursued all other investigative techniques: Araujo, at para. 33.
[218] A variety of grounds may afford an authorizing judge a basis to conclude that normal investigative techniques are unlikely to succeed, among them, a demonstration that the techniques would not reveal key information or are ineffective against the group under investigation: Araujo, at para. 33.
[219] The reviewing judge does not substitute his or her view for that of the authorizing judge. The review is not a hearing de novo of the application for authorization. If, based on the record before the authorizing judge, as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then the reviewing judge is not entitled to interfere: Garofoli, at p. 1452. On the review, the existence of fraud, non-disclosure, misleading evidence, and new evidence are relevant, but only to determine whether there remains any reliable evidence that might reasonably be believed on the basis of which the authorizing judge could have granted the order: Garofoli, at p. 1452; Araujo, at para. 54; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30.
[220] Appellate review of decisions of reviewing judges also involves deference to the findings of fact of the reviewing judge in his or her assessment of the original record as amplified on review: R. v. Grant (1998), 132 C.C.C. (3d) 531, at p. 540; and R. v. Agensys International Inc. (2004), 71 O.R. (3d) 515 (C.A.), at para. 30. An appellate court ought not to interfere with the findings of the reviewing judge absent an error of law, a misapprehension of the evidence, or a failure to consider relevant evidence: Grant, at p. 540; Agensys International Inc., at para. 30.
The Principles Applied
[221] As I will explain, I would give effect to this ground of appeal. The reviewing judge erred in concluding that, on the record before the authorizing judge, as amplified on review, there was no reliable evidence that might reasonably be believed on the basis of which the authorizing judge could have granted the authorization.
[222] First, despite his statement of the proper standard of review at the outset of his reasons, the balance of the reviewing judge’s reasons, read as a whole, betrays the proper application of this standard. What appears, rather, is a de novo review, on an item-by-item basis, of each investigative procedure undertaken and a critique of the investigating officer’s conclusions about its efficacy. It is not the role of the reviewing judge to micromanage homicide investigations.
[223] Second, the piecemeal approach followed by the reviewing judge is incompatible with his obligation to review the affidavit material as a whole, and to acknowledge the authority of the authorizing judge to draw reasonable inferences from the contents of the supportive affidavit.
[224] Third, the reviewing judge failed to articulate the basis upon which he rested his conclusions about the state of mind, purposefulness, and lack of understanding of the authorization process demonstrated by the affiant: R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at paras. 37 and 42.
[225] Fourth, the reviewing judge seems to have lost sight of the common sense reality of the specific criminal inquiry in which investigators were engaged. A drug dealer, pressing others for a return of funds advanced or delivery of drugs purchased, was stabbed to death, his body dumped in the snow. No murder scene. No eyewitnesses. No weapon. A group of buyers, sellers and others disinclined to offer assistance.
[226] Finally, in stating his conclusion on the validity of the authorization, the trial judge misstated the standard of review:
[97] Given the nature of these misrepresentations and the role they played in the authorizing Justice’s decision, it cannot be said that, in their absence, the authorization would nonetheless have been given. Consequently, the authorization of April 27, 2005 is set aside. [Emphasis added.]
The relevant standard is whether, based on the record before the authorizing judge, as amplified on the review, the authorization could have been granted, not whether it would have been granted: Garofoli, at p. 1452.
Ground #4: The References to Wrongful Convictions and Miscarriages of Justice
[227] The final ground of appeal relates to several references in the charge to the jury to wrongful convictions and the potential for miscarriages of justice. A brief reference to the closing address of trial counsel for the respondent and the charge to the jury will set this claim of error in its appropriate context.
The Address of Defence Counsel
[228] Trial counsel for the respondent referred to the dangers of wrongful convictions and the history of miscarriages of justice in Canada. These references were linked to submissions about the inadequacies of the police investigation of those responsible for the killing of the deceased and the “tunnel vision” of the investigators.
[229] In his closing address, trial counsel for the respondent did not mention the names of any persons wrongly convicted or the victims of miscarriages of justice.
The Trial Judge’s Charge
[230] The final instructions of the trial judge contain repeated references to wrongful convictions and miscarriages of justice. The first reference appears in an early portion of the instructions explaining the meaning to be assigned to the standard of proof:
Lastly, let me comment on the miscarriages of justice that have recently occurred in Canada during the prosecutions of Guy Paul Morin, Donald Marshall, David Milgaard and others. You are required by your oath of office to consider the evidence in this case, the submissions of counsel and my instructions to you. If, after diligently doing so, you are satisfied beyond a reasonable doubt of the guilt of the defendant you must return a verdict of guilty against him. To decline to return a verdict of guilty if you are satisfied beyond a reasonable doubt of the guilt of the defendant because of the miscarriages of justice in other cases would be an improper step on your part. However, errors can be made in the administration of criminal justice that lead to the conviction of innocent persons. Our recent history includes a number of such errors. There can be no greater human tragedy than the conviction of the innocent. Do not let these other cases affect your interpretation of the principles of reasonable doubt but be cautious, very cautious, in your application of them to this case.
The jury was provided with a written copy of the entire charge for their use during deliberations.
[231] The trial judge repeated these references to wrongful convictions and miscarriages of justice in his discussion of the position of the defence, which included about 40 pages reviewing “the defence” of inadequate investigation. A later portion of his instructions is entitled The History of Miscarriages of Justice.
[232] Counsel for the Crown at trial did not object to the charge to the jury on this ground.
The Arguments on Appeal
[233] For the appellant, Mr. Alvaro says that the repeated references in the final instructions to wrongful convictions and miscarriages of justice reflects error in much the same way that similar references in the closing addresses of defence counsel have attracted appellate disapproval. In jury instructions, these references reflect error in much the same way that instructions about the “timid juror” introduce inappropriate considerations into the deliberation process.
[234] For the respondent, Mr. Wilkinson prefers to characterize the instructions as nothing beyond fair comment about a very weak prosecution case. What was said properly focussed on the inadequacies of the investigation and the acknowledged dangers associated with tunnel vision. What was said amounted to little more than an instruction that jurors were to approach the evidence with caution.
The Governing Principles
[235] No parade of precedent need be marshalled to support the authority of a trial judge to comment in final jury instructions about the weight to be assigned to various items of evidence and even factual conclusions. The standard to be applied where factual comments are challenged on appeal as beyond what is permitted is somewhat elusive: R. v. Ruddick (1980), 57 C.C.C. (2d) 421 (Ont. C.A.), at pp. 435-436; and R. v. Yanover (1985), 20 C.C.C. (3d) 300 (Ont. C.A.), at p. 319.
[236] The undoubted authority of a trial judge to express his or her views on factual issues, including but not only the credibility of witnesses, is not unconfined. The language used must not leave the jury to think that they must find the facts in synch with the manner indicated by the judge: Ruddick, at p. 435; Yanover, at p. 319. Further, the charge, read as a whole, must not deprive an accused of the fair presentation of his or her case to the jury: Ruddick, at p. 435; Yanover, at p. 319.
[237] An appellate court may intervene where the opinion expressed by the trial judge is far stronger than the circumstances warrant, or where the judge has expressed his or her opinion so strongly that there is a likelihood of the jury being overawed by the opinion, despite instructions that jurors are not bound by the judge’s opinions: Yanover, at p. 320.
[238] When reference is made to wrongful convictions and miscarriages of justice in the closing addresses of defence counsel, the decision in R. v. Horan, 2008 ONCA 589, 237 C.C.C. (3d) 514 offers valuable assistance about the boundary between the permissible and the forbidden. Reference to a “parade of wrongful convictions” risks inviting jurors not to convict, despite the absence of a reasonable doubt, because of a possibility, not based on the evidence or lack of evidence, that the accused might later be found to have been innocent: Horan, at para. 67. This possibility seems enhanced when the author of the reference is the trial judge and the reference appears in his or her final instructions to the jury.
[239] Further, Horan teaches that final addresses should not refer to specific cases by name or attempt to draw parallels between those cases and the case being tried: Horan, at para. 69.
The Principles Applied
[240] I would give effect to this ground of appeal. The repeated references in the charge to the jury to wrongful convictions and miscarriages of justice reflect error.
[241] The case for the Crown consisted entirely of circumstantial evidence, relying on evidence of opportunity, motive, and things said and done after the killing to prove that the respondent killed the deceased. No eyewitness testified. No jailhouse informant gave evidence. It was not an overwhelming case, but it was one that was ideally suited for a jury to decide.
[242] The case for the respondent pointed to another person as the killer. Chung had motive, opportunity, and said and did things after the killing that pointed to him as the killer. The investigation was inadequate, the product of tunnel vision, failing to thoroughly investigate Chung and focusing exclusively on the respondent. The likelihood of Chung’s involvement and the investigative inadequacies, coupled with the respondent’s denial during police interviews admitted as part of the Crown’s case, raised a reasonable doubt about the respondent’s guilt. The respondent did not testify.
[243] As a general rule, as is the case with the closing address of defence counsel, a reference in the charge to the jury to the “history” in Canada of demonstrated wrongful convictions will not help jurors in their task: Horan, at para. 69. Contemporary Canadian jurors well understand the nature of their task and the importance of making an informed and correct decision after a thorough consideration of the whole of the evidence and in accordance with the governing legal principles as explained by the trial judge. They need not be bludgeoned by a barrage of reminders that, sometimes, mistakes are made.
[244] Second, nothing should be said by a trial judge, whether explicitly or by necessary implication from the repetition of references to the subject, to overstate the extent of the problem of wrongful convictions: Horan, at para. 69. Although a single wrongful conviction is one too many, there is, as yet, no “parade” or “history”, as the heading in the written charge announced in bold type, of wrongful convictions in Canada.
[245] Third, the trial judge should not have made reference to specific cases of documented wrongful convictions or have tried to draw parallels with them. As other authorities like Horan have pointed out, the circumstances of the cases of established wrongful convictions are multi-faceted and complex, much different than those at work in the case at hand.
[246] Fourth, instructions like those under review here, risk inviting jurors to take into account irrelevant considerations and imaginary dangers, rather than focusing on their task of assessing the evidence in accordance with the governing legal principles in the case that is theirs to decide: Horan, at para. 67.
[247] Finally, like the “timid juror” instruction that implies that any juror who does not convict is timid and imagines doubts where none exist to avoid making a decision, repeated references to miscarriages of justice and wrongful convictions is a form of intimidation that invites acquittal, not because of an absence of sufficient proof of guilt, but because a verdict of guilt might be proven wrong in the fullness of time: Horan, at paras. 67-68.
The Effect of the Errors on the Jury Verdict
[248] What remains for decision is whether the errors identified above, considered as a whole, had any effect or exerted any influence on the jury’s verdict. The respondent does not suggest that the identified errors do not raise questions of law alone, but does say that, because of the inherent weaknesses in the Crown’s case at trial, and the failure to take up the trial judge’s offer of a mistrial, the errors had no material bearing on the result.
[249] In my view, for the reasons that follow, the combined effect of the trial judge’s errors in failing to admit the testimony of Chung and the derivative evidence and in the instruction based on Schell and Paquette require a new trial. I would not order a new trial only on the basis of the trial judge’s references to miscarriages of justice in the charge to the jury, or the order of the reviewing judge setting aside the authorization to intercept private communications, whether those errors are considered individually or in combination.
[250] On an appeal from acquittal in proceedings by indictment, the Crown must establish that legal errors made by the trial judge, considered cumulatively, might reasonably be thought, in the concrete reality of the case, to have a material bearing on the verdict of acquittal: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14.
[251] Crown counsel does not have to persuade an appellate court that the verdict would necessarily have been different, but must satisfy the court that the verdict would not necessarily have been the same had the errors not been made: Graveline, at paras. 14 and 16.
[252] In this case, the jury had to decide whether the Crown had proven beyond a reasonable doubt that the respondent unlawfully killed the deceased in circumstances that amounted to second degree murder. The core issue at trial was the identity of the deceased’s killer. The Crown said it was the respondent and that Chung’s participation didn’t matter. The defence said it was Chung, or at least there was a reasonable doubt that it was the respondent. The evidence was entirely circumstantial.
[253] The legal errors in this case, except that of the reviewing judge in setting aside the authorization, all related to the central issue of the identity of the deceased’s killer.
[254] First, the ruling that excluded Chung’s testimony and any evidence derived from it left jurors with an incomplete and distorted picture about Chung’s alleged participation in the killing.
[255] The respondent was permitted to adduce evidence about Chung’s opportunity and motive to kill the deceased and of what he did and said after the killing that tended to link him to it. The ruling precluded the Crown from adducing evidence that tended to rebut the respondent’s assertion that Chung participated in the killing of the deceased or was the killer. The excluded evidence included the testimony of the very person whom the respondent alleged was the killer: Chung. Even if Chung were not permitted to testify about the respondent’s “confession”, evidence rebutting Chung’s participation was critical to a proper evaluation of the legitimacy of the alternate suspect claim.
[256] The effect of the ruling here is similar to the effect of the decision by the trial judge in the foundational case of R. v. McMillan. There the trial judge permitted the defence to adduce expert opinion evidence of the alternate suspect’s disposition as circumstantial evidence of conduct, but denied the Crown the right to adduce evidence that tended to show the accused had a similar, if not equivalent disposition. The effect of the ruling was to leave the trier of fact with an incomplete or distorted picture on the central issue of the identity of the deceased’s killer. McMillan’s acquittal was set aside and a new trial ordered on the basis that evidence of McMillan’s disposition had been wrongly excluded. It will be for the judge presiding at the new trial to rule on the admissibility of Chung’s evidence.
[257] The trial judge concluded that, if he admitted the evidence of Chung and its derivatives, an adjournment would be necessary to permit the completion of the ongoing investigation, disclosure, and the need for the defence to consider the effect, if any, of the new information on the conduct of the defence. According to the trial judge, proceedings could not be rescheduled for about one year.
[258] Chung testified on the voir dire to determine the admissibility of his evidence. With the then available and recently provided disclosure, he was cross-examined for four days. His evidence was not complex. He denied involvement in the killing of the deceased and recounted a barebones confession of the respondent. I am at a loss to understand why it would take months to complete any further investigation, provide disclosure, and assess the impact of this evidence on the defence. I am equally at a loss to understand why proceedings could not be recommenced in the largest jurisdiction in this province for a year. All that was required was a brief adjournment, of weeks, not months or a year, a disclosure order, and a resumption of proceedings within weeks consistent with the Crown’s obligation to ensure that the respondent was tried within a reasonable time.
[259] Nor am I persuaded that Chung’s evidence was so unreliable that its reception would have made no difference to the jury’s verdict at trial. Properly instructed juries in criminal cases are well-equipped to assess the credibility of witnesses like Chung and to determine the reliability of their evidence. What a jury would make of Chung’s evidence, along with the rest of the evidence, is for a jury to say. This jury never had that opportunity to consider whether they would believe some, none, or all of Chung’s testimony and the related evidence. It simply cannot be said, as the respondent suggests, that, had that evidence been given, along with the rest of the evidence, that the jury’s verdict would necessarily have been the same.
[260] Second, the instruction based on Schell and Paquette confined the jury’s consideration of the respondent’s liability for the killing too narrowly. The effect of the instruction was that, if the jury had a reasonable doubt about Chung’s participation, the respondent was to be acquitted. A proper instruction on co-principals would have focussed on the respondent’s participation and required a finding of guilt upon adequate proof of it irrespective of Chung’s involvement.
[261] In the circumstances of this case, the trial judge’s “offer” of a mistrial, when Crown counsel objected at the end of his charge to his reconfiguration of the Crown’s position and to his instruction based on Schell and Paquette, does not estop or otherwise bar the Crown from seeking and obtaining a new trial. The Crown was entitled to have its case presented to the jury in a legally correct way in accordance with the evidence adduced at trial. The trial judge’s ruling prevented any such adjudication. The mistrial “offer” was no solution when it was accompanied by a judicial warning that a stay of proceedings would likely be granted because a rescheduled trial could not be put in place for another year.
[262] Third, the inappropriate and repeated references to the prospect of wrongful conviction and a miscarriage of justice resulted in an instruction that invited jurors to take into account irrelevant considerations and imaginary dangers in reaching their decision, rather than a reasoned assessment of the evidence as a whole in accordance with the governing legal principles. These instructions, repeated on eight separate occasions, amounted to a form of jury intimidation inviting acquittal, not because of inadequacies in the proof of guilt, but because, sometime later, a conviction might be determined to have been a miscarriage of justice.
[263] The ruling on the Garofoli application, which resulted in exclusion of several intercepted private communications from the Crown’s case, adds little to the Crown’s case for a new trial. The bulk of the content of the excluded interceptions made its way into evidence through formal admissions under the Criminal Code. That said, I am unable to agree with the trial judge’s decision to admit one of the interceptions at the insistence of the respondent. The reviewing judge found that the interceptions were the product of constitutional infringement. Nothing more should have been heard of them.
[264] As a result of the cumulative effect of what I consider to be legal errors in the exclusion of Chung’s evidence and in the charge to the jury, I would allow the appeal, set aside the respondent’s acquittal, and order a new trial on the indictment.
Released: December 24, 2012 “JL”
“David Watt J.A.”
“I agree John Laskin J.A.”
“I agree K. Feldman J.A.”