R. v. O’Connor, 2002 CanLII 3540 (ON CA)

Her Majesty the Queen v. O'Connor

[Indexed as: R. v. O'Connor]

62 O.R. (3d) 263

[2002] O.J. No. 4410

Docket No. C30841

Court of Appeal for Ontario,

O'Connor A.C.J.O., Abella and Sharpe JJ.A.

November 21, 2002

Charter of Rights and Freedoms -- Search or seizure -- Search without warrant -- Consent -- Police suspected accused of murder -- Truck similar to accused's observed at scene of shooting -- Police knew they didn't have sufficient grounds to arrest accused or to search his truck -- Police told accused he didn't have to consent but that they could seek search warrant if he refused -- Consent voluntary as police officers' persistent request for consent not amounting to coercion or oppression -- Consent not informed as reference to applying for warrant true but likely misled accused into believing police could obtain warrant -- Consent not valid waiver of s. 8 right under Charter -- Physical evidence including deceased's DNA found in truck -- Real evidence located not conscriptive -- Police legitimately concerned that accused might destroy evidence so elements of necessity and urgency -- Expectation of privacy in truck lower than that pertaining to residence -- Admission of evidence would not bring administration of justice into disrepute -- Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

Criminal law -- Evidence -- Hearsay -- Necessity requirement not met simply because witness not compellable because he was out of jurisdiction -- Necessity requirement met where hearsay is only available means of putting evidence before court -- Hearsay statement which required clarification did not possess sufficient elements of reliability to have been put before jury without benefit of cross-examination.

Criminal law -- Evidence -- Admission of evidence -- Bad character of accused -- Accused charged with murder -- Friend testifying that before murder accused asked if "you were me would you blow somebody's head off" -- Context of conversation made clear that accused not referring to deceased -- Crown conceding that probative value slight -- Prejudicial effect outweighing any probative value -- Limiting instruction required about potential misuse of evidence as proving bad character of accused once evidence admitted -- Cumulative errors requiring new trial.

Criminal law -- Evidence -- Admission of evidence -- Consciousness of guilt (after the fact conduct) -- Accused charged with murder -- Crown adducing evidence of three out of court statements accused made to police for purpose of proving that statements false and amounting to evidence of consciousness of guilt -- Accused not testifying -- Independent evidence of fabrication required in addition to evidence proving statement false before out of court statement may be used as proof of guilt -- Trial judges should exclude such statements unless sufficient independent evidence of fabrication available -- Circumstances under which out of court statements made may provide independent evidence -- Accused giving detailed false statements to police before he was suspect -- Sufficient independent evidence arising from circumstances under which statements given to support conclusion that statements [page264] fabricated by accused to divert suspicion from himself -- Accused's out of court statements properly admitted.

Criminal law -- Trial -- Charge to the jury -- Consciousness of guilt (after the fact conduct) -- Accused charged with murder -- Crown calling evidence of three out of court statements accused made to police to prove statements false and amounting to evidence of consciousness of guilt -- Accused not testifying -- Independent evidence of fabrication required in addition to evidence proving statement false before out of court statement may be used as proof of guilt -- Statement amounting to alibi -- Trial judge properly instructing jury that independent evidence of fabrication required before false alibi could be used as proof of guilt -- Trial judge erred by failing to charge jury that independent evidence means evidence apart from evidence showing statements were false -- Cumulative effect of this and other errors requiring new trial.

The accused was convicted of second degree murder. The deceased was killed with two shotgun blasts from close range on the shoulder of a highway. A nearby resident who heard the shots saw a pick-up truck parked behind the deceased's van. The truck, which drove off quickly after the shots were fired, was similar in description to the truck owned by the accused. The Crown's case pointing to the accused's guilt was based entirely on circumstantial evidence. The trial judge permitted the Crown to adduce evidence to show that the accused had made three false statements to the police during their investigation. These false statements, amounting to alibi evidence, were introduced by the Crown solely for the purpose of showing that they were fabricated, thereby providing affirmative evidence of the accused's guilt. The trial judge also permitted the Crown to adduce evidence that, a few days before the deceased was shot, the accused told a friend that he was considering blowing someone's head off. The context of the remark related to the ex-boyfriend of the accused's girlfriend. The deceased was not that person.

A person who lived across the street from an apartment in Buffalo which the accused claimed to have visited on the morning of the shooting told the police that he had not seen the truck that morning and that "it wasn't there for sure". This out-of-court statement was admitted to prove the truth of its contents.

In the course of their investigation, the police came to suspect that the accused was lying to them about his whereabouts at the time of the shooting. They recognized that they did not have sufficient grounds to either arrest the accused or to apply for a search warrant. Two officers went to see the accused at his girlfriend's apartment and asked him to consent to the search of his truck. They informed him that he did not have to consent, but they were persistent in urging him to do so after he stated that he did not want them to take the truck at that point in time. The accused's girlfriend told him to let the officers have the truck. The officers advised the accused that they could apply for a search warrant if he did not consent. The accused agreed to let them take the truck. The typed consent form with which the officers presented him stated that he did not have to consent to the search, that he could withdraw his consent at any time, and that any evidence obtained from the truck would be used as part of the police investigation of the murder. The accused signed the consent form. A search of the truck led to the discovery of material which matched the deceased's DNA. The trial judge found that the accused had consented to a warrantless search and seizure of his truck and that the search and seizure had not violated his rights under s. 8 of the Canadian Charter of Rights and Freedoms. The accused appealed, arguing that all of these rulings by the trial judge were erroneous. [page265]

Held, the appeal should be allowed.

There is no reason to distinguish between the approach taken in relation to a disbelieved alibi and other disbelieved exculpatory out of court statements made by the accused when considering when either may be used to prove guilt. In both situations, before an adverse inference of guilt may arise, independent evidence of fabrication or concoction must be provided. A disbelieved alibi or other exculpatory statement has no evidentiary value. Independent evidence is evidence that is apart from that proving the falsity of the statements. Before permitting the Crown to lead evidence of the accused's out of court statement for the purpose of proving it to be false (and therefore potentially proof of guilt), a trial judge should determine if there is sufficient independent evidence proving that the statement was fabricated. If there is no such evidence, the Crown should not be permitted to adduce the statement. When dealing with out of court statements, the circumstances under which they are made may be considered independent evidence capable of proving fabrication. The accused was interviewed as part of police routine, primarily to gather information about the deceased's background and where the deceased might have been before the shooting. The accused was not a suspect at the time. The circumstances in which the accused made the allegedly false statements to the police and the detailed nature of those statements constituted sufficient evidence upon which a jury could conclude that the accused fabricated the statements in order to mislead the police and divert suspicion from himself. Accordingly, the statements, together with the evidence showing that they were false, was properly admissible.

However, once that evidence was admitted, it was important that the trial judge clearly instruct the jury on the manner in which it could use that evidence. The trial judge in this case failed to do so. Although the trial judge referred to the need for independent evidence on which to found a finding of fabrication, he did not go on to point out that the requirement for independent evidence means evidence apart from the evidence showing the statement to be false. This problem was compounded when the trial judge instructed the jurors to consider the evidence showing the falsity of the accused's statement as evidence of fabrication. Finally, the trial judge's charge was premised on a situation in which the accused had called alibi evidence at trial. In fact, it was the Crown who led the statements, which were admitted over the accused's objections. The misdescription could have confused the jury, compounding the seriousness of the error in the way the evidence of fabrication was handled in the charge.

The evidence of the accused's friend that the accused had talked about blowing somebody's head off had little, if any, probative value, and any probative value which it may have had was significantly outweighed by its potential for unfair prejudice. It should not have been admitted. Once admitted, it should have been the subject of a limiting instruction that the evidence not be used to show the accused was a violent man and, therefore, more likely to have killed the deceased. The trial judge failed to instruct the jury that the evidence could not be used to show propensity or bad character.

The defence conceded that the statement that the accused's truck "was not there for sure" on the morning of the shooting met the necessity requirement for the admission of hearsay evidence on the basis that the witness was an American citizen who was not a compellable witness. Despite that concession, it was questionable whether the statement met the necessity requirement. To satisfy the hearsay requirement, it is not sufficient for the Crown to simply show that a witness is not compellable because he or she is out of the jurisdiction. Efforts should be made to pursue other options (such as teleconferencing or taking commission [page266] evidence) before the conclusion is reached that admitting evidence by way of hearsay statement is necessary. Necessity cannot be equated with the unavailability of a witness. Rather, it must be shown that hearsay is the only available means of putting the evidence before the court. Further, the statement in question did not possess sufficient elements of reliability to have been passed for consideration by the jury without the benefit of cross-examination. This hearsay statement should not have been admitted into evidence.

Cumulatively, the above three errors could not be saved by the application of the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. The use made of the accused's alleged false statements and his alleged remark about "blowing off" someone's head formed a significant part of the case and may have affected the jury's verdict. A new trial was required.

In order to establish a valid waiver of constitutional rights, the Crown must demonstrate that the accused waived his constitutional right voluntarily, with full knowledge of the existence of the right and an appreciation of the consequences of waiving that right. In this case, the accused's consent was voluntary as it was not the product of coercion or oppression. The police officers' persistence did not cross the line and it was made clear to the accused that he could withhold consent. However, the consent was not informed. The police knew that they could not obtain a search warrant. Although they merely stated that they could apply for a warrant, not that they could obtain one, the distinction was likely lost on the accused. In seeking the accused's consent to the search of his truck, it was not necessary for the police officers to advise him that they did not have the grounds to obtain a warrant. However, once they chose to raise the matter, it was incumbent upon them to fully and fairly apprise the accused of the correct situation, including the fact that they did not have sufficient grounds to obtain a warrant. Not only did they not do this, they described the situation in a way that likely led the accused to believe that they could obtain a warrant. The accused's consent was not valid to waive his rights under s. 8 of the Charter. The initial search and seizure of the truck was unlawful and, therefore, unreasonable. The subsequent search warrant was obtained on the strength of information gathered during the initial search and was, therefore, also fatally flawed.

The evidence obtained from the search, material that matched the deceased's DNA, was real evidence that existed irrespective of the Charter violation. The accused was not conscripted to participate in the discovery or the creation of the evidence and its admission, therefore, did not affect the fairness of the trial. While the violation of the accused's rights was neither trivial nor technical, there were circumstances which mitigated the seriousness of what occurred and took this out of the most serious category of Charter breaches. The search was of the accused's truck, and therefore his expectation of privacy was lower than if they had searched his residence. The circumstances in which the breach occurred involved elements of both urgency and necessity. This was not an unwarranted fishing expedition, and the police had a legitimate concern that the accused might remove or destroy incriminating evidence. The admission of the evidence found in the truck would not bring the administration of justice into disrepute.

APPEAL from a conviction for second degree murder.

R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, 13 B.C.L.R. (2d) 1, 38 D.L.R. (4th) 508, 74 N.R. 276, [1987] 3 W.W.R. 699, 28 C.R.R. 122, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193 (sub nom. Collins v. R.); R. v. Wills (1992), 1992 2780 (ON CA), 7 O.R. (3d) 337, 9 C.R.R. (2d) 360, 70 C.C.C. (3d) 529, 12 C.R. (4th) 58, 34 M.V.R. (2d) 296 (C.A.), apld [page267] Other cases referred to R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, 148 N.R. 241, 79 C.C.C. (3d) 257, 19 C.R. (4th) 1; R. v. Belnavis, 1997 320 (SCC), [1997] 3 S.C.R. 341, 34 O.R. (3d) 806, 151 D.L.R. (4th) 443, 216 N.R. 161, 46 C.R.R. (2d) 272, 118 C.C.C. (3d) 405, 29 M.V.R. (3d) 1, 10 C.R. (5th) 65; R. v. Blazeiko (2000), 2000 14726 (ON CA), 48 O.R. (3d) 652, 145 C.C.C. (3d) 557 (C.A.); R. v. Borden, 1994 63 (SCC), [1994] 3 S.C.R. 145, 134 N.S.R. (2d) 321, 119 D.L.R. (4th) 74, 171 N.R. 1, 383 A.P.R. 321, 24 C.R.R. (2d) 51, 92 C.C.C. (3d) 404, 33 C.R. (4th) 147; R. v. Coutts (1998), 1998 4212 (ON CA), 40 O.R. (3d) 198, 126 C.C.C. (3d) 545, 16 C.R. (5th) 240 (C.A.) [Leave to appeal to S.C.C. refused (1999), 239 N.R. 193n]; R. v. Finta, 1994 129 (SCC), [1994] 1 S.C.R. 701, 112 D.L.R. (4th) 513, 165 N.R. 1, 20 C.R.R. (2d) 1, 88 C.C.C. (3d) 417, 28 C.R. (4th) 265, affg (1992), 1992 2783 (ON CA), 92 D.L.R. (4th) 1, 9 C.R.R. (2d) 91, 73 C.C.C. (3d) 65, 14 C.R. (4th) 1 (Ont. C.A.); R. v. Fliss, 2002 SCC 16, (2002), 99 B.C.L.R. (3d) 1, 209 D.L.R. (4th) 347, [2002] 4 W.W.R. 395, 161 C.C.C. (3d) 225, 49 C.R. (5th) 395; R. v. Hibbert, 2002 SCC 39, 211 D.L.R. (4th) 223, 287 N.R. 111, 163 C.C.C. (3d) 129, 50 C.R. (5th) 209; R. v. Orpin (2002), 2002 23600 (ON CA), 165 C.C.C. (3d) 56 (Ont. C.A.) (sub nom. R. v. O. (J.A.)); R. v. Parrington (1985), 9 O.A.C. 76, 20 C.C.C. (3d) 184 (C.A.); R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, 94 D.L.R. (4th) 590, 139 N.R. 323, 75 C.C.C. (3d) 257, 15 C.R. (4th) 133; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 148 Man. R. (2d) 161, 190 D.L.R. (4th) 591, 258 N.R. 250, 224 W.A.C. 161, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1; R. v. Tessier (1997), 1997 3475 (BC CA), 113 C.C.C. (3d) 538 (B.C.C.A.); R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, 38 Alta. L.R. (2d) 99n, 40 Sask. R. 122, 18 D.L.R. (4th) 655, 59 N.R. 122, [1985] 4 W.W.R. 286, 13 C.R.R. 193, 18 C.C.C. (3d) 481, 45 C.R. (3d) 97, 32 M.V.R. 153; R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302; Steinberg v. Com'r of Taxation (Cwth.) (1875), 134 C.L.R. 640 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 8, 10(b), 24(2) Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii)

Frank Addario and Jon Dawe, for appellant. Roger A. Pinnock, for respondent.

The judgment of the court was delivered by

O'CONNOR A.C.J.O.: --

OVERVIEW

1After a trial by judge and jury, the appellant was convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for ten years.

2Frederick Grondin was shot to death on the shoulder of a highway west of Fort Erie at about 5:20 a.m. on November 7, 1996. He was killed by two shotgun blasts from close range, one to the head and the other to the chest. A nearby resident who heard the shots saw a pick-up truck parked behind what turned out to be the deceased's van. The truck, which drove off quickly, [page268] was similar in description to the truck owned by the appellant. Earlier that evening, Grondin had won several hundred dollars playing poker, and that money was missing when his body was searched after his death. The Crown's case pointing to the appellant's guilt was based entirely on circumstantial evidence. The appellant did not testify.

3I will address four issues raised on this appeal:

(a) Did the trial judge err by permitting the Crown to adduce evidence to show that the appellant had made false statements to the police during their investigation of the offence, and did the trial judge further err by instructing the jury that this evidence could be used to draw an inference of guilt?

(b) Did the trial judge err by permitting the Crown to adduce evidence that a few days before the deceased was shot, the appellant told a friend, Gary Trenholm, that he was considering blowing someone's head off (not the deceased's), and did the trial judge further err by failing to give a limiting instruction to the jury about the use that could be made of this evidence?

(c) Did the trial judge err in concluding that an out-of-court statement of a witness, Dane Grodem, was sufficiently reliable to be admissible in evidence?

(d) Did the trial judge err in finding that the appellant consented to a warrantless search and seizure of his truck and if so, should the evidence obtained have been excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms?

4I would allow the appeal and order a new trial. In my view, the trial judge erred in the manner in which he instructed the jury with respect to the appellant's allegedly false statement to the police. I am also of the view that the Trenholm evidence and Grodem's out-of-court statement ought not to have been admitted into evidence. I am satisfied that the cumulative effect of the three errors is such that a new trial is required. Because I conclude there should be a new trial, I will also address the issue relating to the search of the appellant's truck. I will, however, limit my discussion of the facts to those portions of the evidence necessary to consider the issues raised in this appeal. [page269]

ANALYSIS

Issue #1: The Appellant's Allegedly False Statements - Evidence of Guilt

(a) The facts

5The appellant submits that the trial judge erred in permitting the Crown to introduce three statements he made to the police for the purpose of establishing that the statements were false. The appellant then submits that, having admitted the statements and the evidence to show that they were false, the trial judge further erred in instructing the jury that it was open to them to draw an inference of guilt from that evidence.

6On November 7, 9 and 13, 1996, the appellant made exculpatory statements to the police. On each occasion, he denied shooting Grondin and said that he had been at the Fort Erie "Social Club", an after-hours poker club, at the time of the shooting.

7On November 7, when the police started their investigation, they did not have a theory as to why Grondin was killed, or who had shot him. Several officers were assigned to investigate Grondin's background and his movements prior to his death. The officers soon learned that Grondin had played poker at a charity casino a few hours before his death, and that the appellant had also been at the same casino recruiting players for a poker game to be held at the Social Club after the charity casino closed at 4:00 a.m.

8On the evening of November 7, several officers went to the Social Club to conduct interviews. They knew the appellant was involved in the gambling scene in Fort Erie, and hoped he might have information about Grondin's background, but did not consider the appellant to be a suspect. P.C. Tom Willette and P.C. Ron Cudney took the appellant to the police station to take a statement.

9At the police station, the appellant told Willette and Cudney that he had gone to the charity casino at around 3:30 a.m. on November 7. He returned to the Social Club with several prospective poker players, arriving at about 4:15 a.m. There were too few players to hold a game, and by 5:00 or 5:30 a.m. all the prospective players had left the Club. The appellant said that he stayed at the Club until between 6:00 and 6:10 a.m. (Grondin was shot at 5:20 a.m.). Three other persons, Paul Bailey, Jeff Newman and Tom Dimeo, were also present at the Social Club at the same time. The appellant said that when he left the Club, he drove his truck across the border to [page270] West Avenue in Buffalo, New York, where his friend and occasional roommate, Wayne Cross, lived. He said he crossed the border at about 6:30 a.m., and arrived at Cross's apartment at about 6:35 a.m. The appellant said that he sometimes stayed with Cross and sometimes stayed in Fort Erie with his then girlfriend, Diane Wolbert. After interviewing the appellant for 45 minutes, Willette and Cudney drove the appellant back to the Social Club. They asked to see his truck, and the appellant let them examine it.

10The next day (November 8), Willette and Cudney learned that a check of the border records did not show that the appellant's truck had crossed to the United States the previous morning. In addition, the officers talked to two witnesses who lived in the area of Wayne Cross's apartment in Buffalo, who cast doubt on the appellant's statement that he had parked his truck at Wayne Cross's apartment at around 6:30 a.m. on November 7. The two officers also received information from another officer, P.C. Thomas Plato, that he had seen the appellant's truck in front of the Social Club at approximately 4:30 a.m. on November 7 but that when Plato returned at 4:42 a.m. the truck was no longer there.

11On the morning of November 9, P.C. Willette and Cudney visited the appellant at Diane Wolbert's apartment. They told the appellant that there were some discrepancies in his statement and asked him to come back to the police station. At the station, the appellant reiterated the substance of his November 7 statement in greater detail. He again stated that he had been at the Social Club until 6:10 a.m. on November 7, that he had driven across the border at around 6:30 a.m. and had gone to Cross's West Avenue apartment to rest, arriving at between 6:32 to 6:35 a.m. He said he returned to Canada between noon and 1:00 p.m. When told that there was no record of his truck crossing the border, the appellant expressed surprise. He described the U.S. customs officer who had been on duty, explaining that he had seen the man before at the casino. He suggested that even if U.S. Customs had not recorded his licence plate, a record of his return crossing would be on the computer on the Canadian side. When told that P.C. Plato had not seen his truck in front of the Social Club at 4:42 a.m., the appellant again expressed surprise and said that he had not moved his truck until he left for Buffalo later that morning.

12On November 12, the police decided to interview the appellant a third time. Willette was on vacation so Cudney conducted the interview with Detective Joe Matthews. They arranged for the appellant to come to the police station the next [page271] day. The November 13 interview was audiotaped. During the interview, the appellant again described his movements during the early hours of November 7, stating that he had arrived at the Social Club at about 4:15 a.m. and remained there for several hours. He said that he noticed a police officer drive a Jeep by the Club a couple of times. The appellant could not explain why P.C. Plato had not seen his truck at 4:42 a.m., saying that he had not moved his truck or lent it to anyone. He said that when he left the Social Club at around 6:10 or 6:20 a.m., he drove to Buffalo and went to Wayne Cross's West Avenue apartment, where he kept a room.

13At the trial, the Crown introduced the appellant's three statements and then called evidence that contradicted the appellant's description of his whereabouts at the critical time when Grondin was shot, and his statements that he drove across the border to Buffalo at around 6:30 a.m. and parked in front of Cross's house shortly afterwards.

14There was substantial evidence contradicting the appellant's statements. First, there was the evidence of the three individuals, Bailey, Newman and Dimeo, who had been with the appellant at the Social Club in the early morning hours of November 7. In their initial statements to the police, all three said that the appellant had left the Social Club well after 5:20 a.m. However, at trial, Newman, Bailey and Dimeo each testified that the appellant left the Social Club at around 4:45 a.m., refuting the appellant's statements that he had not left until about 6:10 a.m.

15Next, P.C. Plato testified that at approximately 4:30 a.m. on November 7, he saw a car parked in front of the Social Club and two pick-up trucks parked across the street from the club. He ran licence plate checks through the police computer and a few minutes later received a report indicating that one of the pick-up trucks was registered to the appellant and that it had an expired validation sticker. P.C. Plato returned to the Social Club at approximately 4:42 a.m., intending to give the appellant a ticket, and found that the appellant's truck was no longer parked in front of the club.

16Finally, there was evidence that undermined the appellant's statements to the police about his whereabouts after leaving the Social Club. A review of the border crossing records disclosed no record of the appellant's truck crossing the border to the United States on the morning of November 7. [page272] In addition, the Crown introduced a statement of Dane Grodem, a neighbour of the appellant's friend, Wayne Cross, in Buffalo, who said that he had not seen the appellant's truck on the morning of November 7 and who also said that "It wasn't there for sure." Grodem, who is an American citizen, was not a compellable witness and the trial judge permitted the Crown to file his statement for the proof of the truth of its contents. The Crown also introduced a statement from another neighbour of Cross's, Arthur Sikorski, in which Mr. Sikorski stated that when he got up at around 6:00 or 6:30 a.m. on November 7, the appellant's truck was not parked in the driveway.

(b) The law

17It is well settled that there is a distinction between an alibi that is disbelieved and, therefore, rejected and an alibi that is found to be concocted or deliberately fabricated. The former has no evidentiary value; the latter can constitute evidence from which an inference of guilt may be drawn: [See Note 1 at end of document] R. v. Hibbert, 2002 SCC 39, 163 C.C.C. (3d) 129 at pp. 148-52; R. v. Coutts (1998), 1998 4212 (ON CA), 40 O.R. (3d) 198, 126 C.C.C. (3d) 545 (C.A.) (leave to appeal dismissed, [1998] S.C.C.A. No. 450 (Quicklaw)); and R. v. Blazeiko (2000), 2000 14726 (ON CA), 48 O.R. (3d) 652, 145 C.C.C. (3d) 557 (C.A.). In R. v. Hibbert, Arbour J. made it clear at p. 151 C.C.C. that "[e]ven if an alibi is advanced by the accused himself and is rejected, the finding that the alibi is untrue cannot serve to corroborate or complement the case for the prosecution, let alone permit an inference that the accused is guilty." However, where the Crown adduces evidence from which it can be inferred that an accused fabricated an alibi, that evidence is capable of supporting an inference of guilt.

18Many of the cases address the need for evidence of fabrication in situations where it is an accused's alibi that is disbelieved; some cases, however, refer to the requirement applying to disbelieved exculpatory statements generally. I see no reason to distinguish the approach taken to disbelieved statements that constitute alibis and those that are otherwise exculpatory. In my view, the requirement for evidence of fabrication before any adverse inference may arise applies equally to both kinds of statements. In analyzing the evidentiary value of a disbelieved statement that is not an alibi, however, the court will need to have regard to the content of what it is that is disbelieved and the connection of the disbelieved statement to the offence charged. [page273]

19The distinction between mere disbelief and a finding of fabrication has regard to the fundamental principle that the onus of proof remains on the Crown throughout a criminal trial and helps ensure that the trier of fact properly applies the burden of proof in cases where statements of an accused are tendered or an accused testifies. The distinction reduces the risk that a trier of fact may blur the need for the Crown to prove the offence charged beyond a reasonable doubt with the failure of the accused to provide a credible defence. The distinction also recognizes the danger that a trier of fact may attach undue weight to the rejection of an accused's explanation and may move too readily from mere disbelief to a finding of guilt. As was pointed out by Gibbs J. in Steinberg v. Com'r of Taxation (Cwth.) (1875), 134 C.L.R. 640 at p. 695, cited in R. v. Tessier (1997), 1997 3475 (BC CA), 113 C.C.C. (3d) 538 (B.C.C.A.) at p. 553: "The fact that a witness [even the accused] is disbelieved does not prove the opposite of what he asserted."

20In Coutts, supra, Doherty J.A. explained the rationale underlying the rule as follows at p. 203 O.R., pp. 551-52 C.C.C.:

If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused's version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown's obligation to prove an accused's guilt beyond a reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused's version of events.

(References omitted)

21Despite the fact that in many cases an inference of fabrication will flow logically from disbelief of an accused's statement, the policy underlying the distinction between disbelief and the finding of fabrication militates against using disbelief to infer fabrication. The courts have, therefore, attached the requirement that a finding of fabrication must be founded on evidence that is independent from the evidence which contradicts or discredits the accused's version of events: R. v. Hibbert, supra, at p. 151 C.C.C.; R. v. Coutts, supra, at p. 204 O.R., p. 552 C.C.C.; and R. v. Tessier, supra, at p. 556 C.C.C.

22The need for independent evidence of fabrication applies both to the testimony of an accused at trial which is disbelieved as well as to an out-of-court statement which is found to be untrue: R. v. Coutts, supra, at pp. 202-04 O.R., pp. 550-52 C.C.C. However, in my view, there is an important difference in what is capable of constituting independent evidence of fabrication in the two different circumstances. [page274]

23The cases make it clear that when it is an accused's testimony which is disbelieved, the circumstance in which the accused gave the disbelieved version of events -- as part of the trial process itself -- is not considered to be independent evidence of fabrication permitting an adverse inference against the accused: R. v. Parrington (1985), 20 C.C.C. (3d) 184, 9 O.A.C. 76 (C.A.) at p. 187 C.C.C.; and R. v. W. (D.) 1991 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397. Before an adverse inference may be drawn, there must be evidence capable of showing fabrication apart from both the evidence contradicting the accused's testimony and the fact that the accused is found to have testified falsely at the trial.

24On the other hand, I am satisfied that it is open to a trier of fact to consider evidence of the circumstances in which an accused made an out-of-court statement which is disbelieved as independent evidence to show that the accused fabricated the statement. The difference in approach to disbelieved testimony and disbelieved out-of-court statements turns both on the policy reasons underlying the requirement for independent evidence of fabrication as well as on the potential evidentiary value of the circumstances in which the two types of statements are made.

25When an out-of-court statement of an accused is introduced into evidence, it does not have the same immediate connection to the trial itself as an accused's testimony, and for that reason, even if shown to be false, it does not present the same threat that the trier of fact will confuse mere disbelief with affirmative evidence of guilt and improperly lessen the burden on the Crown.

26In addition, the circumstances in which an accused, or a person who eventually becomes an accused, makes an out-of-court statement which is found to be untrue may have an evidentiary value that is not present in the circumstance where an accused testifies and is disbelieved. False exculpatory statements made by a person upon being informed that a crime has been committed will in some circumstances be consistent with that person being conscious of having committed the crime, and may point to guilt in the same way that other after-the-fact conduct such as flight, a threat to a witness, or concealment of evidence can be probative of guilt. The circumstances in which a false statement is made may show an intent to mislead the police or others or an intent to deflect suspicion and may be evidence of a conscious mind that he or she has committed an offence. When a court is addressing the admissibility of evidence contradicting an accused's out-of-court statement, it will be required to determine if there is independent evidence of fabrication, but in doing so, the court may consider the circumstances [page275] in which the allegedly false statement was made. If those circumstances tend to support a conclusion that the accused made a false statement because he or she was conscious of having committed the offence, then those circumstances may be used as independent evidence of fabrication.

27I recognize that the practical effect of permitting the circumstances in which an accused's allegedly false out-of- court statement is made to be used as evidence of fabrication will in most cases result in treating such statements in the same manner as other after-the-fact conduct, i.e. if the fact that the accused told a false version of events is probative of guilt then it is admissible. Because of that, I considered whether there is any need to extend the independent evidence of fabrication requirement to out-of-court statements of an accused. I have concluded that there is for two reasons. First, the case law to this point in time does not draw a distinction between disbelieved out-of-court statements and disbelieved testimony. Second, and perhaps more importantly, I think that the court should proceed with great care in considering the use that may be made of disbelieved statements of an accused whenever they are made. Although the dangers that triers of fact may misuse an accused's disbelieved statement is less when the statement is made out-of-court than it is when the accused's version of events is given in evidence, there nonetheless remains a danger. The requirement that the court always approach the disbelieved out-of-court statement within the analytical paradigm of requiring independent evidence of fabrication provides a prudent and desirable safeguard that disbelieved out-of-court statements will not assume a more prominent evidentiary role than is warranted.

(c) The admissibility issue

28In this case, the defence did not introduce the allegedly false alibi. The Crown led the evidence of the appellant's three statements, which if believed, would furnish the appellant with an alibi and a complete defence to the murder charge. The sole reason that the Crown introduced the statements was to lead evidence to show that the statements were fabricated, thereby providing affirmative evidence of the appellant's guilt.

29At trial, the defence objected to the admission of the three statements, arguing that they were not voluntary and that the appellant's rights under s. 10(b) of the Charter had been infringed. Defence counsel (not Mr. Addario or Mr. Dawe) did not object on the grounds that the statements were being introduced solely for the purpose of establishing that they were fabricated. Nor did defence counsel object to the admissibility of the evidence [page276] contradicting the statements on the basis that the adverse inference the Crown was seeking to draw from the alleged fabrication was not available on the evidence. After hearing evidence on a voir dire, the trial judge ruled that the statements were admissible.

30When the Crown seeks to introduce evidence to show that an accused has fabricated out-of-court statement[s], the judge should determine at that stage whether there is sufficient evidence of fabrication, independent of the evidence tending to show the falsity of the statements, which, if accepted, could reasonably support a finding of fabrication. If there is not sufficient evidence to support a finding of fabrication, then the Crown should not be permitted to call the evidence showing the accused's statements were false. There would be no purpose in the Crown proving that the accused made a false statement if the inference from a conclusion of fabrication is not available. To call the evidence showing an accused's statement is false in that circumstance could only tend to confuse the trier of fact and possibly unfairly prejudice the accused.

31In this case, it is my view that the circumstances in which the appellant made the allegedly false statements to the police and the detailed nature of those statements constitute sufficient evidence upon which a jury could conclude that the appellant fabricated the statements in order to mislead the police and divert suspicion from himself. His first statement was made the same day as the shooting and, importantly, was made to the police at a time when the police did not suspect the appellant and the appellant did not have reason to believe that he was a suspect. The police, as a matter of routine, questioned witnesses who might have information about the deceased's whereabouts prior to the shooting. The appellant's initial statement furnished a complete alibi and, if true, would lead the police to conclude that he was not involved in the offence. That statement and the next two statements were very precise, both as to the appellant's whereabouts and the times he was in the various places. If the jury were to disbelieve the appellant's statements, they might fairly ask why would the appellant tell such detailed and specific lies to the investigators. Why not tell the truth? And how was it that the appellant was so well prepared with a detailed and precise statement about his whereabouts when questioned by the police? In my view, it would be open to a jury to use the evidence of the circumstances surrounding the making of those statements and the nature of the statements themselves to conclude that the appellant fabricated the statements to avoid suspicion.

32To be clear, it is not the evidence establishing the falsity of the statements which constitutes the evidence of fabrication; [page277] rather, it is the evidence of the circumstances in which the disbelieved statements were made and the detailed nature of those statements which, in my view, is capable of furnishing the independent evidence of fabrication.

33That being the case, I am satisfied that the appellant's three statements, together with the evidence showing that they were false, was properly admissible. However, once that evidence was admitted, it became important that the trial judge clearly instruct the jury on the manner in which the jury could use this evidence.

(d) The charge to the jury

34In all cases in which alibi evidence is introduced, whether by the Crown or the defence, the first step for the trier of fact is to determine whether the trier believes or has a reasonable doubt about the truthfulness of the alibi. In this regard, the court should follow the approach set out in R. v. Parrington, supra. The judge should direct the jurors (or in a trial before a judge alone, self-direct) along the following lines: (1) if they believe the alibi, they must acquit; (2) if they do not believe the alibi, but are left with a reasonable doubt by it, they must acquit; and (3) even if they are not left with a reasonable doubt by the alibi, then on the basis of all the evidence, they must determine whether they are convinced beyond a reasonable doubt of the accused's guilt.

35In cases where the Crown is seeking to have the court draw an inference against an accused based on the alleged fabrication of an exculpatory statement whatever its character, the judge must determine whether there is sufficient independent evidence of fabrication to support a finding. In cases like the present one, where the Crown seeks to lead an allegedly false out-of-court statement and evidence to contradict the statement, the court will have addressed this issue at the admissibility stage.

36In cases where the allegedly false statement is found in the testimony of the accused or defence witnesses, the court will have to consider the availability of the fabrication inference after the completion of the evidence. If the judge concludes there is insufficient independent evidence to support a finding of fabrication, then the jurors should be instructed that if they disbelieve the accused's evidence or have a reasonable doubt about its veracity, they should disregard the evidence and decide the case on the balance of the evidence.

37If the judge concludes that there is sufficient independent evidence of fabrication of either an accused's out-of-court statement or an accused's testimony, then the judge should instruct [page278] the jurors that it is open to them to find that the accused fabricated the exculpatory version of events because he or she was conscious of having done what is alleged and that they may use that finding, together with other evidence, in determining if the Crown has proven the case beyond a reasonable doubt.

38The need for independent evidence of fabrication to support such an instruction is critical. An instruction to jurors that they may make a finding of fabrication against an accused is extremely powerful and must be made with care. The difference between evidence leading only to disbelief of an accused's statement and independent evidence of fabrication can be a difficult concept, particularly for a jury, to grasp. It is, therefore, essential that a trial judge clearly set out the difference between the two types of evidence, and in those cases where the fabrication instruction is given, the trial judge should carefully outline what evidence is capable of constituting independent evidence of fabrication.

39The trial judge in this case addressed the allegedly false statements made by the appellant to the police by instructing the jury as follows:

[I]f you disbelieve an alibi you should treat it as if it had never been given. In other words, just ignore it and then consider all of the other evidence in reaching your verdict. But if you feel that the Crown has proved, by independent evidence, that the alibi is a fabricated one and that you are satisfied that the sole reason for the fabrication was to deceive you and that there is no other explanation for it being fabricated or it being [sic] forward, the proof that it has been fabricated for that purpose leads to an inference of guilt or to a consciousness of guilt. . . .

The Crown suggests to you that Plato, Grodem and the bridge reports clearly prove that the alibi put forward by Mr. O'Connor is fabricated and is put forward for no other reason than to deceive you, the jurors. If you accept that position then you may use that fabrication as consciousness of guilt and infer guilt from the very fabrication.

40The defence objected to this portion of the charge, relying on authorities that hold that no inference of guilt may be drawn from a false alibi unless independent evidence clearly shows fabrication. The trial [judge] recharged the jury as follows:

Also, in regard to what I had to say to you about alibi, I want to make it very clear to you that there is no obligation on the accused to prove anything. He does not have to prove his alibi. The Crown has to prove that his alibi is false.

41The defence objected again; however, the trial judge did not recharge the jury further on this issue.

42In my view, the trial judge's charge relating to the appellant's statement was deficient in a number of respects. Although [page279] the trial judge referred to the need for independent evidence on which to found a finding of fabrication, he did not go on to point out that the requirement for independent evidence means evidence apart from the evidence showing the statements to be false.

43This problem was compounded when the trial judge instructed the jurors to consider the evidence showing the falsity of the appellant's statement as evidence of fabrication. The trial judge suggested that the evidence of P.C. Plato, Grodem and the bridge reports was capable of establishing fabrication. However, this was the very evidence that was led to contradict the appellant's statements and, for that reason, [it was] not capable of constituting independent evidence of fabrication. The trial judge's direction to consider this evidence as evidence of fabrication was, therefore, in error.

44Although I have concluded that there was evidence on which the jury could find fabrication -- the circumstances in which the appellant made the statements and the detailed nature of the statements themselves -- the trial judge made no reference to this evidence. It was necessary, in my view, that the judge clearly direct the jury as to what evidence could constitute evidence of fabrication.

45Finally, the trial judge's charge was premised on a situation in which the appellant had called alibi evidence at trial. For example, the trial judge referred to "the alibi put forward by Mr. O'Connor . . ." and further on "[the alibi] is put forward for no other reason than to deceive you the jurors." In fact, the appellant did not put the statements forward at all. It was the Crown who led the statements, and the statements were admitted over the appellant's objections. The trial judge's charge misdescribes the process by which these statements were introduced into evidence, and although perhaps not fatal, the misdescription could have confused the jury, compounding the seriousness of the error in the way the evidence of fabrication was handled in the charge.

46Although I am satisfied that it was open to the trial judge to instruct the jury that a finding of fabrication was available, I am of the view that the manner in which the trial judge addressed the issue in his charge constitutes a misdirection.

Issue #2: The Trenholm Evidence

47The appellant submits that the trial judge erred in admitting the evidence of Gary Trenholm and, having admitted the evidence, that he further erred by failing to give an appropriate limiting instruction to the jury about the use that could be made of Trenholm's evidence. [page280]

48Gary Trenholm was a friend of the appellant. Trenholm testified that one evening early in November 1996, he received a telephone call from the appellant in which the appellant explained that he had run out of gas and needed help. Trenholm met the appellant, drove him to a nearby gas station, and bought him some gas. The appellant seemed nervous and shook-up and had difficulty pouring the gas without spilling it. At one point he asked Trenholm"Gary, if you were me, would you blow somebody's head off?". When Trenholm asked the appellant what he meant, the appellant explained that he was having "a problem with [his] girlfriend's ex". It is accepted that the deceased, Frederick Grondin, was not the appellant's girlfriend's ex-boyfriend.

49At the trial, the defence did not object to the admissibility of this evidence. The appellant now argues that the Trenholm evidence has no probative value in relation to the death of Grondin and is nothing more than evidence of bad character or propensity, and as such, should not have been admitted.

50The Crown responds that this evidence is relevant to show the appellant's state of mind and to show that he was considering shooting someone in the head. In oral argument on this appeal, however, the Crown accepted that the probative value of this evidence in relation to Grondin's death is slight.

51I agree that this evidence has little, if any, probative value. The connection to the offence faced by the appellant is tenuous at best. Moreover, there is reason for concern that a jury, particularly without proper instruction, might use this evidence impermissibly as evidence of bad character or propensity.

52In his charge, the trial judge summarized Trenholm's evidence without further comment. He did not give a limiting instruction and, in particular, the trial judge did not tell the jury that they could not infer from the evidence that the appellant was a violent man and, therefore, more likely to have killed Grondin.

53The defence objected to this part of the charge but asked only that the trial judge make clear to the jury that the appellant's remarks were directed to his girlfriend's ex-boyfriend and not to Grondin. The trial judge declined to recall the jury on this basis because his charge had in fact made it clear that the remark did not refer to Grondin. The defence did not ask the trial judge to caution the jury about the limited use to be made of this evidence.

54In my view, the probative value of the Trenholm evidence, if any, is significantly outweighed by its potential for unfair prejudice. Accordingly, the evidence was not properly admissible, and once admitted, the evidence should have been [page281] the subject of a direction that the evidence not be used to show propensity or bad character.

Issue #3: Admission of Dane Grodem's Out-of-Court Statement

55Dane Grodem lived across the street from Wayne Cross's apartment in Buffalo, where the appellant had told the police he arrived at approximately 6:35 a.m. on the morning of the shooting. In his statement, Grodem said he had not seen the appellant's truck on the morning of November 7, and also that "it wasn't there for sure." This out-of-court statement was admitted to prove the truth of its contents.

56The appellant concedes that Grodem's statement met the necessity requirement for the admission of a hearsay statement on the basis that Grodem is an American citizen who was not a compellable witness. However, the appellant argues that Grodem's statement did not meet the "reliability" requirement for the admission of hearsay because there were insufficient guarantees of trustworthiness compensating for the lack of an oath, the presence of the witness or the advantages of cross-examination: R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, 75 C.C.C. (3d) 257, at p. 932-33 S.C.R., p. 270 C.C.C.; and R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, 79 C.C.C. (3d) 257, at p. 787 S.C.R., p. 288 C.C.C.

57Despite the appellant's concession, I have serious reservations whether Grodem's statement meets the necessity requirement for the admission of hearsay statements. It is not sufficient for the Crown to simply show that a witness is not compellable because he or she is out of the jurisdiction to satisfy the necessity requirement. Efforts should be made to pursue other options (teleconferencing or taking commission evidence are two) before one reaches the conclusion that admitting evidence by way of hearsay statement is necessary. Necessity cannot be equated with the unavailability of a witness. Rather, it must be shown that hearsay is the only available means of putting the evidence before the court: R. v. Finta (1992), 1992 2783 (ON CA), 73 C.C.C. (3d) 65, 92 D.L.R. (4th) 1 (Ont. C.A.) at p. 199 C.C.C.; R. v. Orpin (2002), 2002 23600 (ON CA), 165 C.C.C. (3d) 56 (Ont. C.A.) at pp. 68-73.

58The ultimate reliability of a hearsay statement and the weight to be attached to it are matters that must be determined by the trier of fact. In deciding whether to admit an out-of-court statement, a trial judge should only determine if there is a threshold of reliability, not whether there is ultimate certainty or absolute reliability. Threshold reliability is concerned with whether the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 147 C.C.C. (3d) 449, at pp. 253-55 S.C.R., pp. 534-35 C.C.C. [page282]

59Grodem's statement was made to two police officers, persons in authority, and the officers made notes when the conversation took place. There is nothing in the evidence to suggest that Grodem had any reason or motive to mislead the police. However, the nature of Grodem's statement itself raises a serious concern about the admission of this evidence without an oath and without the opportunity for cross-examination. The Crown's purpose for introducing Grodem's statement was to prove that the appellant's statements about the time he arrived in Buffalo were false. Details about what Grodem saw and the time he made his observations were, therefore, critical. The Crown argued that Grodem's statement showed that the appellant lied to the police officers when he was questioned about his whereabouts. If accepted, Grodem's evidence would weigh heavily against the appellant.

60The most damning part of Grodem's statement was that"[the truck] wasn't there for sure". However, it is not clear from the circumstances if the word "there" referred to the roadway in front of Wayne Cross's house, Cross's driveway, or both. Given the importance of the statement, clarification was critical. Moreover, one does not need a lot of imagination to anticipate the potential benefit to the defence of being able to cross-examine Grodem about the specifics of his recollection -- the exact time and the details of his damning observation. In my view, the statement does not possess sufficient elements of reliability to have been passed for consideration by the jury without the benefit of cross-examination.

61Accordingly, I am satisfied that Grodem's hearsay statement ought not to have been admitted into evidence.

Issue #4: The Search of the Appellant's Truck

62The appellant submits that the trial judge erred in finding that the appellant consented to a warrantless search and seizure of his truck and that the evidence obtained from the searches of his truck should not have been admitted in evidence under s. 24(2) of the Charter.

(a) The facts

63The admissibility of the search and seizure evidence was canvassed on a voir dire. The evidence disclosed that after the police officers, Detective Matthews and P.C. Cudney, interviewed the appellant on November 13, 1996, they discussed searching the appellant's truck. They recognized that they did not have sufficient grounds to either arrest the appellant or to apply for a [page283] search warrant. They therefore agreed to try to persuade the appellant to consent to a search. The police officers drafted a consent form and went to see the appellant at the apartment of his girlfriend, Diane Wolbert.

64The appellant invited the officers inside and the ensuing conversation lasted for about 20 minutes. After Matthews read him the consent form, the appellant asked how long the police wanted to keep the truck, to which Matthews replied no longer than a day. The appellant then asked if he had an option not to let the police take the truck. Told that he did have that option, the appellant said that he did not want to let the officers take his truck at that time. He explained that he wanted to get a new licence validation sticker, and stated "if I get a sticker then I'll let you have it, but not right now." In response, Matthews told the appellant that the police "could apply for a warrant", adding that "there was no reason to do that" because "there's no reason why we can't take it [the truck], is there?". Matthews accused the appellant of being uncooperative, and told him that the police wanted the truck to clear the appellant and get on with catching the person who killed Grondin. After a further discussion about when the truck would be returned, the appellant again said that he would rather wait. Reminding the officers that he had co-operated with their requests for interviews, he stated"I'd rather hold out on this." The appellant indicated that this was "all [he] had to say about it", saying that he may change his mind later. He suggested that after he had dealt with his registration problem he might take the truck to the police himself.

65Matthews rejected the appellant's suggestion that he might let them have his truck at a future date, on the ground that the police needed to preserve the continuity of the vehicle. The appellant replied that he wanted to rest and think about it, and told Matthews"Okay, I'm going to use my option not to let you take the truck." Matthews again suggested that if the appellant was not involved in Grondin's murder he should let them take the truck and clear the appellant and the truck. At this point, Diane Wolbert, who had been asleep in the bedroom, came out into the main room, having been woken by the raised voices of the two officers. On the voir dire, she testified that she believed that Cudney and Matthews would not leave the apartment until the appellant agreed to give them his truck. Accordingly, when she came out of the bedroom she told the appellant to "just let them take the fucking truck". She went back to the bedroom and slammed the door.

66Cudney, who to this point had said little, told the appellant that the police could seize the vehicle without his consent if they applied for a warrant and one was authorized. Matthews recalled [page284] Cudney telling the appellant that if the police obtained a search warrant, they could take the truck "at a time that wasn't convenient for him". Shortly afterwards, the appellant agreed to give the police his truck. After Matthews added a stipulation that the consent remained valid only until noon the next day, the appellant signed the consent form.

67After obtaining the appellant's consent, the police had the appellant's truck taken to police headquarters in St. Catharines, where a careful search revealed a blood spot on a piece of plastic moulding covering the driver's seat hinge. On the basis of this discovery, the police obtained a search warrant and continued to hold the appellant's truck pending further examination. During a further search, the police found a greasy material on the underside of the driver's side windshield wiper blade. Both the blood spot and the material from under the windshield blade were found to match samples of the deceased Grondin's DNA.

68In his ruling on the voir dire, the trial judge reviewed the evidence and found that there was no oppression or coercion exhibited by the officers, that Diane Wolbert's intervention had some influence on the appellant's decision to consent, that the appellant was totally free not to sign the consent and that accordingly, the consent was valid and the evidence resulting from the subsequent searches was admissible.

(b) The law

69In cases where the Crown contends that an accused has waived a constitutional right in the course of a police investigation, the onus lies on the Crown to show that the accused's decision to permit the investigative process to intrude upon the right is both voluntary and informed. Proof of voluntariness alone is not sufficient to establish waiver. Knowledge of the various options and an appreciation of the potential consequences of the choice made are essential to the making of a valid and effective choice. In R. v. Wills (1992), 1992 2780 (ON CA), 7 O.R. (3d) 337, 70 C.C.C. (3d) 529 (C.A.) at p. 349 O.R., pp. 541-42 C.C.C., Doherty J.A. said that to establish a constitutionally valid waiver, the Crown must "demonstrate that the accused decided to relinquish his or her constitutional right with full knowledge of the existence of the right and an appreciation of the consequences of waiving that right . . .". In R. v. Borden, 1994 63 (SCC), [1994] 3 S.C.R. 145, 92 C.C.C. (3d) 404, at p. 162 S.C.R., p. 417 C.C.C., Iacobucci J. observed:

A right to choose requires not only the volition to prefer one option over another, but also sufficient available information to make the preference meaningful. [page285]

(c) The breach

70In my view, the trial judge erred in holding that the appellant gave a valid consent to the police to search his truck. While I would not interfere with the trial judge's finding that the appellant voluntarily consented to the search, in the sense that the consent was not the result of improper oppression or coercion by the police, I am satisfied that the statements of the police likely misled the appellant about the consequences of refusing to give his consent. Because of that, it cannot be said that the accused gave "an informed consent".

71I will deal first with the trial judge's finding on the issue of voluntariness. The police presented the appellant with a typed consent form which informed the appellant that he did not have to consent to the search, that if he did consent, he could withdraw the consent at any time, that evidence obtained from the vehicle would be used as part of the police investigation of the murder of Grondin, and that the police would be checking the vehicle for the presence of blood, hairs, fibres and fingerprints. The form also contained an acknowledgement that the appellant had been advised of his right to retain and instruct counsel without delay. Detective Matthews read the form to the appellant and the appellant appeared to reread it before signing. In addition, when the appellant asked the police whether he had an option not to let the police officers take the truck, he was told that he did.

72There is no doubt that the police were persistent in trying to persuade the appellant to consent and were reluctant to take no for an answer. The police officers were in the apartment for 20 minutes, and despite repeated efforts on the part of the officers to persuade the appellant to allow them to take the truck, he declined to do so no less than nine times before he finally agreed and signed the consent form.

73In my view, however, it was open to the trial judge to conclude that the police conduct did not cross the line into the impermissible areas of coercion or oppression so as to render the consent involuntary. It is significant that many of the appellant's refusals were qualified. On one occasion, he said: "If I get a sticker [a licence validation sticker] I'll let you have it [the truck] but not right now" and later that he "would rather wait" and "maybe he would change his mind later". It is understandable that the police, when confronted with this type of equivocation, would continue their efforts to persuade the appellant to permit them to take his truck. Moreover, the trial judge found that the appellant's decision to agree in the end appears to have been affected at least in part by the intervention of Diane Wolbert [page286] rather than the police's persuasive efforts. Most importantly, it was made clear to the appellant, both in the discussion with the police officers and in the written consent form, that he was free to withhold his consent, and ultimately, he decided to consent to the search.

74While I would not interfere with the trial judge's finding that the appellant's consent was voluntary in the sense that the police did not use improper coercion or oppression, I am persuaded that the consent was not made on the basis of proper information. On two occasions, the police told the appellant that if he refused to allow them to take his truck, they could apply for a search warrant, and on the second occasion, they also told him that if a warrant was granted, the truck could be seized at a time that would not necessarily be convenient to the appellant. Shortly afterwards, the appellant agreed to sign the consent. The police knew that based on the information they had at the time they could not obtain a warrant. Although the police chose their words carefully so as to say only that they could apply for a warrant, not that they could obtain a warrant, that distinction was likely lost on the appellant, and the message he would have received was that if he did not consent then the police would obtain a search warrant. The information provided by the police, while literally accurate, would likely have led the appellant to believe that the police could obtain a warrant to search his truck at that point, when in fact they could not.

75I agree with the Crown that in seeking the appellant's consent to search his truck, it was not necessary for the police officers to advise the appellant that they did not have the grounds to obtain a warrant. There would have been no problem if the police had not raised the subject of a warrant. However, once they chose to raise the matter, it was incumbent upon them to fully and fairly apprise the appellant of the correct situation, including the fact that they did not have sufficient grounds to obtain a warrant. Not only did they not do this, they described the situation in a way that likely led the appellant to believe that they could obtain a warrant. For that reason alone, I conclude that the appellant's consent was not valid to waive his rights under s. 8 of the Charter.

76The Crown concedes that absent a valid consent, the initial search and seizure of the appellant's truck was unlawful and, therefore, unreasonable. The subsequent search warrant was obtained on the strength of information gathered during the initial search and was, therefore, also fatally flawed. [page287]

(d) Section 24(2)

77Having found that there was no Charter breach, the trial judge went on to say that if he had found a breach he would have admitted the evidence obtained in the two searches of the appellant's truck under s. 24(2) of the Charter. In expressing this conclusion, the trial judge noted that since he found no Charter breach"it was extremely difficult to give a decision under s. 24(2)."

78In R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, 33 C.C.C. (3d) 1, the Supreme Court of Canada set out the three factors relevant to a determination whether evidence ought to be excluded pursuant to s. 24(2). These are the fairness of the trial, the seriousness of the violation and the effect of excluding the evidence on the administration of justice.

79The evidence obtained from searching the appellant's truck, material that matched the deceased's DNA, was real evidence that existed irrespective of the Charter violation. The appellant was not conscripted to participate in the discovery or the creation of the evidence and its admission, therefore, did not affect the fairness of the trial.

80As to the seriousness of the breach, I conclude that the violation of the appellant's rights was neither trivial nor technical. There are a number of circumstances present in this case that contribute to the seriousness with which this breach must be viewed. The appellant was clearly reluctant to consent to the search at the time the police officers were seeking his consent. The officers' references to the possibility of obtaining a search warrant likely played a part in the appellant's decision to consent to the search, and while those references were literally correct, the officers no doubt made the statements in an effort to persuade the appellant that there was little advantage in refusing consent. Although the consent was voluntary in the sense that the appellant knew that he had a choice and decided to permit the search, it was nonetheless tainted by the message that he likely received about the availability of a warrant. Moreover, the fact that the misleading message originated with the police adds to the seriousness of the violation of the appellant's Charter right.

81That said, there are other circumstances which mitigate the seriousness of what occurred and take this case out of the most serious category of Charter breaches.

82First, the search that resulted from the improperly obtained consent was of the appellant's truck, not his home. Although the appellant would have had an expectation of privacy [page288] for his truck, it would be a lesser expectation than for his residence. The lesser expectation of privacy attaching to the truck by itself removes this case from the most serious category of Charter breaches: R. v. Belnavis, 1997 320 (SCC), [1997] 3 S.C.R. 341, 118 C.C.C. (3d) 405, at pp. 363-64 S.C.R., p. 424 C.C.C.

83Next, the circumstances in which the breach occurred involved elements of both urgency and necessity. See R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, 18 C.C.C. (3d) 481, at p. 652 S.C.R., p. 512 C.C.C. The deceased was shot on November 7. Before seeking to obtain the appellant's consent to search his truck, the police had interviewed the appellant on three occasions and had reason to believe that the appellant was lying to them about his whereabouts at the time of the shooting. They were aware that a truck had been seen at the scene of the shooting. The next logical investigatory step was to search the appellant's truck, and the police, therefore, sought the appellant's consent to do so. This was not an unwarranted fishing expedition. When the police interviewed the appellant, there was a legitimate concern that if there was incriminating evidence in the appellant's truck, and if the police were unable to proceed with the search at that time, the appellant would remove or destroy the incriminating evidence.

84Finally, as I said above, I accept the trial judge's finding that the police did not engage in impermissible coercion or oppression. No doubt, the police were persistent in questioning the appellant and they crossed the line of what was proper in the manner that they referred to a search warrant. However, it is significant that in seeking the appellant's consent, the police had prepared a written consent form, clearly and thoroughly setting out the reasons for the consent and the choices open to the appellant. The officers made it clear that the appellant knew that he could refuse to consent and they ensured that the appellant knew he could contact counsel. The police took notes of the conversation and there is no suggestion that they did not fully and accurately record their conversations with the appellant. In these respects, the police conduct was proper and appropriate.

85For these reasons, although I do not consider the breach in this case to be trivial or technical, I am satisfied that it falls short of coming within the most serious category of Charter breaches.

86As to the third prong of the Collins test, I conclude that the admission of the evidence found in the appellant's truck would not bring the administration of justice into disrepute. The seriousness of the offence with which the appellant is charged and the reliability and importance of the evidence obtained are relevant factors in determining the effect on the administration of justice of the admission or exclusion of improperly obtained evidence: [page289] R. v. Fliss, 2002 SCC 16, 161 C.C.C. (3d) 225 at pp. 250-52 C.C.C. Murder is the most serious of crimes. The evidence found in the appellant's truck, material matching the deceased's DNA, was real evidence, not conscriptive, and was an essential component of the Crown's case linking the appellant to the crime. Moreover, as I point out above, there are several circumstances relating to the Charter breach that mitigate the seriousness of the intrusion upon the appellant's rights.

87There is one further matter I wish to address. In addition to relying on the events of November 13, 1996, the appellant also argues that evidence of police conduct that took place on November 27, 1996 ought to weigh against the admission of the evidence obtained from the search of the appellant's truck. On November 27, the appellant was arrested and gave a statement to the police. After the completion of the evidence on a voir dire, the Crown conceded, and the trial judge then found that there had been a flagrant breach of the appellant's rights under s. 10(b) of the Charter, and the appellant's statement was ruled inadmissible.

88The appellant submits that the police conduct on November 27 should be viewed as part of a pattern of abusive conduct towards the appellant, lending support to an argument that the admission of the evidence obtained from the search of the appellant's truck would bring the administration of justice into disrepute. I do not accept this argument. The police conduct on November 13, which has led me to conclude that there was a breach of the appellant's Charter rights, is different than the improper conduct that took place on November 27. On November 13, the police made it clear to the appellant that he was entitled to retain and consult with counsel without delay. The problem on November 27 was that the police failed to do exactly that. In my view, the two different events, separated by two weeks, fall well short of establishing a pattern of police misconduct that should weigh into the s. 24(2) analysis.

89Accordingly, I am satisfied that the trial judge did not err in admitting the evidence obtained from the two searches of the appellant's truck.

DISPOSITION

90I have concluded that there were three errors; the misdirection with respect to the appellant's allegedly false statements to the police, the manner in which the Trenholm evidence was handled and the admission of Grodem's hearsay statement. It is not necessary to decide if any one of the errors, standing alone, would be sufficient to warrant a new trial. I am satisfied, however, [page290] that cumulatively the three errors cannot be saved by the application of the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. The Crown's case was entirely circumstantial. The use that could be made of the appellant's allegedly false statements and the Trenholm evidence formed a significant part of the overall case against the appellant and could have had an effect on the verdict of the jury. I am not able to say that had the three errors not been made, the result of the trial would have necessarily been the same.

91For the above reasons, I would allow the appeal, quash the conviction and order a new trial.

Appeal allowed.

Notes

Note 1: In the case law, the words "fabrication" and "concoction" are used interchangeably and for clarity and consistency I will use the word "fabricate" except when quoting from the case law.