R. v. Backhouse, 2005 CanLII 4937 (ON CA)

minicounsel

Footnotes

Although the particular search in that case may or may not pass Charter scrutiny now.
An officer was in the execution of his duty for the purposes of s. 129 of the Code, for example, when serving a speeding ticket: R. v. Noel at para. 17.
House of Commons Debates, (20 December 1984) at 1390 (Hon. John Crosbie).
Because of the opening phrase “Subject to this or any other Act of Parliament” in both ss. 489.1 and 490.
Some federal legislation expressly provides that ss. 489.1 and 490 apply to seizures under that legislation. See Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 13.
See R v. Oickle at para. 46.
At para. 60 of Feeney, the court held that fingerprints [“the product of the search]” may be admissible under s. 24(2) if the arrest was unlawful “by reason of a technicality”.

DATE: 20050303

DOCKET: C35171

ROSENBERG, GOUDGE and BORINS JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

and -

JAMES BACKHOUSE

Appellant

Brian Greenspan and Peter Copeland for the appellant

David Finley and Christine Bartlett-Hughes for the respondent

Heard: October 20 & 21, 2004

On appeal from conviction by Justice Anthony E. Cusinato of the Superior Court of Justice, sitting with a jury, dated March 17, 2000.

ROSENBERG J.A.:

Table Of Contents

I. OVERVIEW OF THE FACTS …………………………………….. para. 2

(1) The Initial Arrest ……………………………………………. para. 2

(2) The Eye-witness Evidence ………………………………….. para. 7

(3) The Gunshot Residue ……………………………………….. para. 10

(4) Cadman and Glysinskie …………………………………….. para. 12

(5) The Similar Fact Evidence …………………………………. para. 23

(6) Hearsay Evidence …………………………………………... para. 27

(7) Other Evidence of Motive ………………………………….. para. 29

II. THE ISSUES ………………………………………………………. para. 31

III. ANALYSIS ………………………………………………………… para. 32

Issue 1: The validity of the initial arrest ……………………………. para. 32

(i) The factual background to the arrest and related issues …….. para. 32

(a) Information from the scene and eyewitnesses ….……….. para. 32

(b) Detectives Rettig and Hayes beliefs ……………………. para. 45

(d) At the police station ……………………………………… para. 50

(ii) Analysis of the validity of the initial arrest ………………….. para. 59

Issue 2: The right to counsel ………………………………………… para. 72

Issue 3: The search at the police station …………………………….. para. 84

Issue 4: Retention of the clothing and s. 489.1 of the Criminal Code para. 91

(i) Grammatical and ordinary meaning …………………………. para. 98

(ii) Legislative history and intention of Parliament ……………… para. 104

(iii) The scheme of the Act ……………………………………….. para. 109

(iv) The legislative context ……………………………………….. para. 112

(v) Conclusion on the application of s. 489.1 …………………… para. 115

Issue 5: The voluntariness of the appellant’s statements …………… para. 116

(i) Lack of sufficient record …………………………………….. para. 117

(ii) Inducement …………………………………………………... para. 120

(iii) Reversal of burden of proof …………………………………. para. 122

Issue 6: The gunshot residue test …………………………………… para. 126

(i) Consent search ……………………………………………… para. 129

(ii) Search incident to arrest …………………………………….. para. 139

Issue 7: The exclusion of evidence under s. 24(2) of the Charter …. para. 146

(i) The hand washing …………………………………………… para. 147

(ii) The testing of the jacket ……………………………………… para. 155

Issue 8: The admission of the similar fact evidence ………………… para. 156

Issue 9: The admission of the hearsay evidence ……………………. para. 176

Issue 10: The jury issues ……………………………………………. para. 189

Issue 11: The warning respecting Brian Cadman …………………… para. 192

IV. CONCLUSION ……………………………………………………... para. 205

V. DISPOSITION ……………………………………………………… para. 206

1The appellant appeals his conviction for first-degree murder, second-degree murder and attempted murder by a court composed of Cusinato J. and a jury. While the appellant raises numerous grounds of appeal, in my view, the appeal must be allowed because of the trial judge’s errors in admitting similar fact evidence and his failure to deal with an alleged violation of the appellant’s rights under s. 10(b) of the Canadian Charter of Rights and Freedoms. I will deal with several of the other grounds of appeal as the same issues may arise on a new trial.

I. OVERVIEW OF THE FACTS

(1) The Initial Arrest

2On December 4, 1997, at approximately 11:00 p.m. a masked man entered the home of Neil Steptoe. The man shot and killed Steptoe and Darryl Evon who happened to be at the home. The man shot and seriously wounded a third man, Joseph Roy. Steptoe’s 12 year-old daughter, Sharianne, heard a commotion and went downstairs. She saw the man shoot her father and his two friends. When the man left she went next door and called 911. The operator asked her who she thought it was and she said it was “Jamie Backhouse and Robert Backhouse because they wanted to kill my dad and my uncle for some time, they beat my uncle up with a baseball bat and everything, and threatened to kill my dad, they drove by so many times”. Within minutes a call went out on the police radio that people had been shot by “Teddy and Jamie Backhouse”. Jamie Backhouse is the appellant. “Teddy” is Robert Backhouse, the appellant’s brother.

3After the initial broadcast, there were more broadcasts and at some point the police made a decision to arrest the appellant and his brother. They were also seeking Teddy Backhouse’s red truck because a similar vehicle had been seen in the vicinity at the time of the shootings. At 1:17 a.m. on December 5^th^, two members of the police tactical unit saw the appellant in a telephone booth and they arrested him. Several of the grounds of appeal concern the lawfulness of the appellant’s arrest and various investigative procedures that occurred thereafter. The appellant submits that he was subjected to an arbitrary arrest in violation of s. 9 of the Canadian Charter of Rights and Freedoms, that his rights under s. 10(b) were violated by the arresting officers, and that he was subjected to several unreasonable searches and seizures in violation of s. 8. The analysis of these grounds of appeal requires close attention to the information in the possession of the police at the time of the arrest and the chronology of events following the arrest.

4This case was argued on the basis that information in the possession of the lead investigating officers could be attributed to the arresting officers. If the lead investigators had reasonable grounds to arrest, the arrest was lawful. I will return to the facts surrounding the arrest when dealing with those grounds of appeal relating to the arrest, questioning of the appellant and searches and seizures.

5At about 5:00 a.m., Teddy Backhouse’s red truck was seized. At 8:00 a.m., Teddy Backhouse surrendered to the police. He provided an alibi to the police and one hour later he was released, as was his truck. The police had not searched the truck.

6At 2:48 p.m., the appellant was also released without being charged.

(2) The Eye-witness Evidence

7Sharianne Steptoe, Joseph Roy and a neighbour, Jeremy Mickle, testified at the trial about the identification of the shooter. Sharianne and Roy only saw the man while he was masked. Sharianne testified that the man was wearing black gloves. Sharianne testified that the jacket the appellant was wearing when he was arrested was similar to the jacket worn by the shooter. Roy testified that the jacket worn by the appellant when he was arrested was definitely not the jacket worn by the shooter. Roy estimated the height of the gunman as 6’, of medium size with a weightlifter type build. At trial, he agreed with the suggestion that the gunman was taller and bigger than the appellant. In her statement to the police, Sharianne estimated the gunman’s height at 5’9” to 5’10”. At trial, she testified that she could not estimate the gunman’s height.

8Mr. Mickle looked out his window after hearing some bangs. He saw someone come out of the Steptoe home and walk away. He described the man as 5’8” to 6’ tall and weighing about 200 pounds. The man had curly, shoulder length hair and was wearing a “puffy” jacket.

9The appellant is about 5’7” tall and weighed 200 pounds.

(3) The Gunshot Residue

10After the appellant was initially arrested, the police conducted a gunshot residue test. His jacket was also sent to the Centre of Forensic Sciences. The expert from the Centre testified that gunshot residue may be present either from firing the weapon itself, being nearby when a gun is fired, or by picking up a spent cartridge casing or a gun that has been fired. Gunshot residue could also be transferred by touching a surface contaminated with gunshot residue. The expert found evidence of gunshot residue on the appellant’s right hand and on his jacket.

11If a person was wearing leather gloves it would be unlikely that the gunshot residue would penetrate to the hands. However, gunshot residue could be transferred to the hands when the person removed the gloves.

(4) Cadman and Glysinskie

12Brian Cadman was a central witness for the Crown. He was forty years of age and had a very lengthy criminal record that included a conviction for perjury, and convictions for various other offences of dishonesty, offences involving failure to comply with court orders and weapons offences. He admitted to being a “fence” for stolen goods and a drug dealer. He was 5’11” tall and weighed about 245 pounds and had curly hair. He had no fondness for Steptoe whom he described as a “maggot”. He believed that Steptoe had sexually assaulted younger girls. He had had various drug dealings with Steptoe and believed that Steptoe had cheated him. He denied having any reason for killing Steptoe and denied being responsible for shootings.

13Jennifer Glysinskie was Cadman’s common law spouse. She also had a (much shorter) criminal record and dealt in stolen goods and sold drugs for Cadman.

14When initially contacted by the police on the morning after the killing, Cadman and Glysinskie denied that the appellant had been with them at the time of the killings. The following day, however, they told the police that the appellant had come to their home, smoked marijuana and drank hot chocolate. Cadman denied knowing who was responsible for the killings. Later that day, the police executed a search warrant at the Cadman/Glysinskie home but did not find anything related to the killings.

15Shortly after the execution of the warrant, the investigating officers began to put pressure Cadman and Glysinskie. The police were constantly at their home and made it clear that they wanted Cadman to testify against the appellant. The police were aware that Cadman and Glysinskie were having money problems and pointed out that there was a $10,000 reward. Cadman’s motorcycle was stolen during the period and he was having difficulty collecting the insurance. According to Cadman, one of the officers told him that he better talk to the police if he wanted to receive the insurance money.

16In early August 1998, the police executed a drug search warrant at Cadman’s house. The homicide investigators were present during the search by the drug squad. When some marijuana was found, the homicide investigators handcuffed Cadman and took him to the police station. They told him that they had wiretaps relating to his drug dealing and he could be facing ten years or more imprisonment. Cadman and Glysinskie also testified that the police threatened to have their children taken away.

17Cadman finally spoke to the police after receiving an “ultimatum” from Glysinskie. They reached a deal with the police in September 1998. They received the $10,000 reward money, Cadman’s pending narcotics and driving charges were withdrawn and the police agreed not to lay any charges against Cadman and his friends arising out of the wiretaps.

18Cadman and Glysinskie testified that around 11:35 p.m. on December 4^th^, the appellant came to their door. According to Glysinskie, he had a white plastic grocery bag with him. According to Cadman, after some time the appellant went to the back porch and came back in with a green garbage bag, which he left under the kitchen table. The appellant’s brother called twice but the appellant did not want to talk to him. When he left, the appellant asked for some quarters to use the payphone at the corner store.

19According to Cadman, at some point he and the appellant went into the backyard where the appellant confessed to him and showed him a revolver he had taken out of a garbage bag. The appellant unloaded the weapon and put the shells and the gun in the garbage bag. He told Cadman that he could not make it home with this stuff and either he or Cadman put the bag between the frame and motor of an old delivery truck that Cadman had in his backyard. According to Cadman, the appellant confessed to having fired a few shots at Steptoe and a couple more shots at Roy. He said that he had shot Steptoe in the head and the chest and he was dead. (Steptoe had been shot under the left collarbone.) He was not sure if Roy would survive.

20After the appellant left, Cadman returned to the house and took the green garbage bag that had been left in the kitchen and put it behind the door to his mother’s bedroom. The bag was tied, but Cadman could see that it contained a black mask and some prescription glasses. Cadman testified that to his knowledge the appellant did not wear glasses.

21It will be recalled that the police executed a search warrant at Cadman’s home on December 6^th^ but found nothing connected to the killing. Cadman explained that in the early morning hours of that day he had taken both bags and hid them about a block away. At about 4:00 a.m. he took the bag with the gun and the bullets and tied it to a chain link fence in an alley behind a house. He hid it behind some vines on the fence. He took the bag containing the clothing and placed this with other garbage bags in the alley. After the police searched his home, Cadman returned to the alley and retrieved the bag containing the clothing and threw it into a dumpster. This version of events was inconsistent with what Cadman told the police in September 1998. At that time, he said that in January or February he returned to the alley and retrieved the bag from the bushes and threw it in a dumpster. The police attempted to verify Cadman’s story but they found no bushes and testified that it would have been difficult to hide a bag on the fence behind vines, there being no leaves on the vines during winter.

22Cadman testified that he hid the gun for about two months but then wanted to dispose of it. The appellant and his brother kept asking for the gun and so he agreed to return it. He retrieved the gun and put it in a bucket and told “them” where to pick it up. He received $500.00 from Teddy Backhouse for the gun.

(5) The Similar Fact Evidence

23Over objection from the defence, the Crown was permitted to lead evidence of the appellant’s involvement in a shooting on September 3, 1998, about nine months after the Steptoe shootings. This second shooting was referred to at trial as the Croft shooting. Matthew Croft had known the appellant for about twenty years and they had been friends at one point. However, Croft started having trouble with the appellant and his brother about two years before September 1998. A friend of Teddy Backhouse claimed that Croft had tried to rape her. This woman’s brother and Teddy Backhouse sought out Croft and there was a scuffle. After that, Croft saw the appellant and his brother driving down the street and yelling out accusing him of being a rapist.

24On August 31, 1998, the appellant came to the door of Matthew Croft’s home. The appellant referred to Croft as a “piece of shit”, called on him to come outside and called him a coward. He could also hear yelling in the background from Teddy Backhouse. Croft grabbed his rifle. When the appellant saw the rifle, he began to run. Croft stepped on to the porch and fired the rifle.

25In the middle of the day on September 3, 1998, Croft and a friend returned from a hardware store. As they were unloading their purchase they heard several gunshots. One of the shots grazed the inside of the friend’s pant leg. All of the shots seem to have been aimed at the ground or no higher than the knee. The shooting originated from the parking lot of a convenience store that was separated from the Croft home by two fences and a vacant lot. The shooter was wearing a white bandana on his head but was not masked. He appeared to have a revolver in his hand. Other evidence established with reasonable assurance that the appellant was the shooter. The police recovered projectiles from the scene and were able to show that these projectiles came from the same gun that had been used at the Steptoe shootings.

26An undercover officer who was placed in the cells with the appellant after the Croft shooting testified that the appellant told him that “this guy raped my brother’s girlfriend, beat him up a couple of times”. He told the officer that after the shooting he had chopped up the gun and melted it down at a friend’s factory.

(6) Hearsay Evidence

27Over objection from the defence, the trial judge ruled that the Crown could introduce the testimony given by the deceased Neil Steptoe at the appellant’s trial for an offence under the Highway Traffic Act, R.S.O. 1990, c. H.8, in which the appellant was accused of failing to remain at the scene of an accident. This trial took place about nine months before the Steptoe shooting. The appellant was apparently represented by an agent at the trial. At the trial, Steptoe testified that on August 20^th^, 1996 he and Joseph Roy (the victim of the attempted murder charge in this case) were riding bicycles when a car pulled up beside them. Steptoe stopped his bicycle and the car swerved over and hit the back of Roy’s bicycle. Roy was thrown in the air and hit the ground. The key issue at that trial was identity of the perpetrator. Steptoe identified the appellant as the driver and as someone whom he had known for several years and with whom he “had a few go ins already”. After backing up his car, the appellant pointed at him and said, “That was meant for you.” The appellant then drove away. Steptoe was extensively cross-examined on that issue. In cross-examination, Steptoe was asked if he was aware of the type of car that the appellant was driving. Steptoe said that usually “they’re” driving a red truck but in all the other incidents they used different cars. The appellant’s agent also asked the following question:

Q. Mr. Steptoe, sorry. Would it be fair to characterize the relationship between you and Mr. Backhouse as being one of bad blood so to speak animosity?

A. Sort of, yeah. Like I mean, I tried getting this cleared up. I didn’t even want to come here and testify today. I mean I’ve got better things to do. I’ve got kids at home that are on March break and that, and I get a subpoena in the mail you know. They tell you you have to come, have to give evidence and I just wanted to let it die. I didn’t want, you know, I didn’t want it to carry on or nothing like that. Here we are.

28When the trial judge ruled that the deceased’s testimony could be read in, he also permitted the defence to file a prior inconsistent statement in a police report and the deceased’s prior criminal record. The justice of the peace presiding at the Highway Traffic Act trial had not permitted the appellant’s agent to cross-examine the deceased on this statement.

(7) Other Evidence of Motive

29Sharianne Steptoe testified that on five occasions between 1993 and 1997 the appellant threatened her father. He would drive by in the red truck and say things like, “I’m going to get you,” and “You’re going to die.” Teddy Backhouse had also threatened her father. They both had driven by her father and made hand gestures like pulling a trigger. Joseph Roy testified that Teddy Backhouse would drive by the Steptoe home in his red truck and call Steptoe a “fucking rat”.

30Ms. Glysinskie testified that the appellant told her that he hated Steptoe. He also told her that around 1994 he had gone to Steptoe’s home looking for him and when he was not there he had smashed up the house with a baseball bat. He then went to the home of Dean Steptoe, the deceased’s brother, and when he did not find Neil Steptoe, he assaulted Dean. As a result he was arrested and was not happy. Cadman too testified that he was aware of a lot of problems between the appellant and Neil Steptoe.

II. THE ISSUES

31The appellant raised a number of issues. I intend only to deal with the following:

(1) The appellant’s initial arrest the morning of December 5, 1997 was made without reasonable and probable grounds and constituted an arbitrary detention or arrest contrary to s. 9 of the Charter.

(2) The appellant’s right to counsel under s. 10(b) of the Charter was violated by questioning by the arresting officers at the roadside.

(3) The appellant was subjected to an illegal strip search at the police station in violation of s. 8 of the Charter.

(4) The police illegally retained the appellant’s clothing in violation of s. 8 of the Charter.

(5) The appellant’s statements to the investigating officers were not proved to be voluntary.

(6) The gunshot residue test of the appellant’s hands violated s. 8 of the Charter.

(7) The evidence obtained from the appellant during the time of his initial arrest including the statements and the results of the gunshot residue testing should have been excluded under s. 24(2) of the Charter.

(8) The trial judge erred in admitting the similar fact evidence.

(9) The trial judge erred in admitting the hearsay evidence from the Highway Traffic Act trial.

(10) The trial judge erred in failing to declare a mistrial by reason of interference with the jury.

(11) The trial judge did not adequately direct the jury with respect to the frailties of Brian Cadman’s evidence.

III. ANALYSIS

Issue 1: The validity of the initial arrest

(a) Information from the scene and eyewitnesses

32The Appellant was arrested at 1:17 a.m. on December 5, 1997, a little over two hours after the shootings. He was released later that day at 2:48 p.m. when the police concluded that they did not have sufficient evidence to warrant the continuation of his arrest. On a voir dire at the outset of the trial extensive evidence was adduced with respect to the information relied upon by the police to justify the Appellant’s initial arrest and detention and other Charter related issues. The Appellant did not testify on that voir dire.

33At 11:05 p.m. on December 4, 1997 the Windsor police received a 911 call relating to a double homicide at 705 Brock Street. In the call, Sharianne Steptoe said she heard a crack and then swearing and went downstairs to see what was wrong. She stated that she had seen a masked man shoot her father and his two friends.

34She was asked who she thought it was and responded:

It was Jamie Backhouse and Robert Backhouse because they wanted to kill my dad and my uncle for some time, they they (sic) beat my uncle up with a baseball bat and everything, and threatened to kill my dad, they drove by so many times, they didn’t know I was home.

35A short time later in the call, she stated:

I know, this guy, this guy’s running, like I was in a car before and he threatened like to kill us, he wanted to kill me and my cousin[.]

36At 11:07 p.m., information was dispatched city-wide by radio to police units:

[…] one Charlie ten, one Charlie ten start over to seven oh5 Brock, seven zero five Brock, we just received a call that two people have been shot by a Teddy and Jamie Backhouse start a unit to back one Charlie ten, seven oh five Brock

37The first officers arrived on the scene at 11:08 p.m. A crowd of 40 to 50 people had gathered around the home, including members of the Steptoe and Evon families and their friends. Constable Stewart saw to it that the scene was secured. At 11:32 the Acting Sergeant authorized the dispatcher to release an all channels citywide dispatch to be broadcast to all units identifying James and Robert (Teddy) Backhouse as the suspects. Based on information previously known to the police the second broadcast included information concerning Teddy’s red pick up truck, the license plates and description of the vehicle. The lead homicide investigators, Detectives Rettig and Hayes, heard these citywide broadcasts. Constable Stewart testified that at around 11:45 p.m. he spoke with Constables Wortley and Verkoeyen at the scene and advised them that Teddy Backhouse and the Appellant could be arrested for murder. These two officers later located the appellant and arrested him at 1:17 a.m.

38In the mean time, Detectives Rettig and Hayes arrived on the scene at 11:27 p.m. Detective Rettig testified that he had previously known both Teddy Backhouse and the appellant. Shortly after their arrival Constable Stewart related to them the history of family problems between the Steptoes and the Backhouses, including events that occurred as recently as five or six months prior to the shooting. Detective Hayes testified that Constable Stewart is an experienced, reliable officer who is very familiar with the west side of Windsor. While at the scene, Detective Rettig also received information from Dean Steptoe, the brother of the deceased, that the appellant hated Neil Steptoe and that their feud related to an allegation of sexual assault from a long time ago. Dean Steptoe also advised the officers that the appellant had hit Joseph Roy on his bicycle. Joseph Roy’s mother told Detective Hayes that the appellant had struck Roy in a motor vehicle accident and that the matter had gone to court in June. Detectives Rettig and Hayes testified that they were also aware that the Backhouses were not the only enemies of the Steptoes. The detectives dispatched officers to canvass the neighbourhood for witnesses and sent Cst. Brown to the hospital to attempt to obtain a description of the perpetrator from Joseph Roy.

39At around 11:50 p.m. Detective Luxford began to interview Sharianne Steptoe. This interview continued to 1:00 a.m. She told him that she had heard someone yelling, followed by someone saying “I’m going to get you back”.

40She described the shooter as follows:

The guy standing in the door with the gun looked like a bank robber with a mask. His eyes were only seen. The mask was over his head down to his shoulders. He even had gloves on. He wore all dark clothes. He looked about 5’9” to 5’10”, thin build. He was holding a gun. It looked like a black .22, like the officer’s gun, but all black. He was holding it with both hands. The first guy I thought of was Teddy Backhouse (Robert) about 30 years old. He looked like Teddy, too.

She also told Detective Luxford that she had spoken to Roy shortly after the shooting and asked him if it was Backhouse, to which “Joe nodded ‘yes’.” Shortly after taking this statement the officer showed it to Detectives Rettig and Hayes. Detective Rettig testified on the voir dire that when he reviewed the statement he considered a possible connection between the Backhouse-Steptoe “feud” and Sharianne’s statement regarding someone saying, “I’m going to get you back.

41As well, by 12:35 the police had a statement of Jeremy Mickle, the neighbour from across the street, who saw the perpetrator leaving the Steptoe residence. Mr. Mickle told the officers that, after hearing a few “bangs”, he looked out his window and:

I noticed a male, white, between 5’8” and 6’ tall. He was about 180 to 200 pounds. He was chunky or heavy set. He was not obese. His hair was dark brown or black, curly, wavy, to his jacket. I could only see his hair until it blended with his jacket. I couldn’t tell all his facial features. The male was wearing a dark, puffy winter jacket to his waist. He had dark pants on. The male closed the front screen door at the corner of Brock and Bloomfield [across the street. This male party walked off the front porch to Bloomfield] and walked west on Bloomfield. It did not seem like he was in a hurry. When he was on the porch, he looked around both ways and walked away.

He also described the man as between 28 and 35 years old with a full head of hair. Detectives Rettig and Hayes saw this statement shortly after it was taken.

42Penny Henderson, another neighbour, also gave a statement that concluded at 12:47 a.m. After hearing five “pops” she looked out her basement window and saw a red pick truck stopped at a stop sign at the intersection in front of the Steptoe residence. Ms. Henderson told the officers that she went upstairs and looked out her window but saw nothing more, other than Sharianne standing beside the couch inside the 705 Brock Street residence. Rettig testified that he knew that Teddy Backhouse had a red pick up truck and he often saw the appellant and Teddy together in that vehicle, with Teddy doing the driving.

43At the hospital, Detective Brown was able to speak briefly with Joseph Roy. Roy said that he did not know who the perpetrator was because he had a mask over his hair and face. He could say that the mask and coat of the perpetrator were black and that he was about the same height as himself, 5’9”. He also described the assailant as “kind of heavy”. When asked if he saw a weapon, Roy told the police “I didn’t see nothing”. When asked if he had any idea who did this, Roy told the police “Just that thing between Neil and Backhouse.”

44Detective Rettig, as well as a number of other officers, testified to the long-standing feud between the Backhouse and Steptoe families. The officers were aware that prior to December 4, 1997, the appellant had precipitated a number of confrontations with Neil Steptoe. The investigators were also aware of the criminal records and reputations of the Backhouse brothers. Detective Rettig testified that he had dealt with the appellant personally in 1995 and that he was 5’7” and about 190 lbs and usually wore his hair short. Detective Rettig testified that he believed that Teddy Backhouse was about 6’1” and “looks taller than he is” because he always wears motorcycle boots.

(b) Detectives Rettig and Hayes belief

45Detective Rettig maintained in cross-examination that the descriptions provided by the eyewitnesses made him think of the appellant and not Teddy Backhouse. For example, upon reviewing the statement of Mickle, he “keyed in” on the appellant because of the description of curly brown hair to the collar. As well, Sharianne Steptoe referred to both Backhouses in her initial 911 call as being responsible for the shooting. Later she described a single masked intruder who she believed to be Teddy Backhouse. However, having reviewed her description of the shooter, Detective Rettig, who was well aware of the physical stature of both Backhouses, concluded that her description more closely resembled the appellant than his brother. From the information he had at that time he determined that the appellant best fit the approximate height of 5’ 8” to 5’ 9”, his real height being 5’ 7”. As well, Detective Rettig was of the view that the weight described by the witnesses was about right for the appellant. As to Teddy Backhouse, his hair is straight and stringy, but he would not describe it as curly. Although Detective Rettig conceded in cross-examination that because of Teddy’s hair length it could possibly be considered wavy, it is not curly. Furthermore, Teddy is taller than the appellant, being about 6’ and thinner.

46In his evidence, Detective Rettig advanced a theory that the appellant had done the shooting and then turned west and walked away, after which Teddy Backhouse, having heard the shots, drove the red pick-up truck to pick up the appellant. Detective Rettig testified that he believed he had “more than enough” reasonable grounds to arrest both Teddy Backhouse and the appellant. Detective Hayes testified to the same effect.

(c) The arrest

47At trial, the defence sought the exclusion of all oral and written statements attributed to the appellant. There were three statements that were the subject of the voir dire. The first was an oral statement made at the roadside immediately upon the appellant’s arrest and the other two statements were reduced to writing during two separate interviews that took place at the station between 2:30 and 5:30 on the morning of December 5^th^.

48Constables Wortley and Verkoeyen arrested the appellant. They are members of a Windsor Police tactical unit. They heard the initial radio broadcast and had some general information regarding the feud between the Backhouse and Steptoe families. They were also aware of the appellant’s criminal record and reputation for violence related offences. At around 11:45 p.m., they attended at 705 Brock Street and spoke briefly with Constable Stewart, who advised them that Teddy Backhouse and the appellant were wanted for murder. It was during their patrol of the west end that the arresting officers observed the appellant in a phone booth. They turned their vehicle around and approached the booth cautiously. After 10 to 15 seconds, the appellant hung up the telephone, turned and opened the telephone booth doors. The appellant stated: “I just spoke to my mom who said you guys were looking for me. I’m James Backhouse.”

49At 1:19 a.m., Wortley placed the appellant under arrest for murder. The appellant challenges the admissibility of statements he made at the roadside. The facts concerning that encounter are set out below when I deal with that issue.

(d) At the police station

50The appellant arrived at police headquarters between 1:30 a.m. and 1:40 a.m., at which time he was lodged in a dry cell, i.e., a cell without running water. This was done to prevent him from destroying potential evidence by washing his hands, face or clothing. The appellant was again informed that he was under arrest for two murders and was asked if he wished to contact a lawyer. The appellant responded, “I probably don’t have to because I had nothing to do with it”. One of the arresting officers, upon arriving at the police station, searched the appellant. The arresting officer seized the appellant’s clothing and provided him with a garment to wear. After this search, the appellant asked to speak to his lawyer. Within minutes, the police arranged for the appellant to speak to his lawyer in private. The call lasted from 2:03 to 2:26 a.m., without interruption. The appellant was then returned to the dry cell.

51At 2:32 a.m., Detectives Rettig and Hayes attended the cell block to remove the appellant for an interview. He was taken to the audio/video interview room. Just prior to taking the appellant to the interview room Detective Rettig confirmed that the appellant had spoken to his lawyer. During their walk to the interview room, and in the room itself, Detective Rettig asked the appellant whether he would consent to a gunshot residue test. Detective Rettig asked the appellant if he wanted to provide a statement and the appellant responded: “Okay, I’ll do it on paper, but not on video”. At some point around this time, Detective Hayes also spoke to the appellant about a gunshot residue test and the appellant responded “I haven’t fired a gun in 10 years” and “I don’t even have an FAC” [Firearms Acquisition Certificate].

52Detective Rettig testified that upon entering the room he told the appellant about the homicides and that he matched the physical description of the shooter provided by witnesses. Rettig accused the appellant of being responsible for the homicides and the appellant denied involvement. Rettig did most of the talking during this initial interrogation. However, the appellant told the officers that he had been at home watching the hockey game and had gone to the store and used a pay phone to call home to see if a friend had called. Following this exchange, and after they had been in the interview room for approximately ten to twelve minutes, the appellant requested that he be permitted once again to speak to his lawyer. This request was immediately facilitated and the appellant spoke to his lawyer for a second time between 2:56 to 3:02 a.m.

53After the appellant completed this call, he was returned to the audio/video room. The trial Judge found that, at that time, the appellant was prepared to provide a voluntary statement, though he declined to have it audio or videotaped. The appellant’s first written statement started at 3:25 a.m. Prior to the written narrative of his whereabouts on December 4, 1997, Detective Rettig advised the appellant once again of the charge of murder and read the printed caution concerning the giving of the statement. It was in the standard form. Thereafter, a secondary caution was also provided to the appellant and he was asked whether or not he understood both the caution and the additional caution to which he answered “yes.”

54As to the manner in which the statement was taken, Detective Rettig testified that it was as complete as possible; he attempted to receive a narrative in the appellant’s own words. He recorded the statement as closely and as accurately as he could. As to exactness, Detective Rettig testified that the essence and wording of what was conveyed by the appellant was incorporated into this statement. The appellant was given the opportunity to read the statement. However, he declined because “I know what I said.” The appellant stated that once his lawyer had read it, he would sign it. The statement was completed at 4:20 a.m. At this time, the identification officers administered the gunshot residue test while the appellant remained in the interview room.

55After the completion of the appellant’s first written statement, the police received information from the appellant’s mother that was inconsistent with the appellant’s account of his whereabouts that evening. As a result of the mother’s statement, the appellant was recalled from his cell at 4:51 a.m. and provided with an opportunity to respond to his mother’s statement, which he was permitted to read. During this interview, the detectives took the position that both the mother’s version and the appellant’s version could not be correct. The appellant then admitted that there were some untruths in his first statement and offered an explanation. He proceeded to give a second written statement. Detective Rettig began the second statement with the title “Clarification of Statement”. The appellant was re-cautioned. This statement began at 4:57 a.m. and finished at 5:20 a.m.

56In this statement, the Appellant told the police he was smoking marijuana with his friend Brian Cadman sometime during the evening of December 4, 1997. The appellant told the police that he had not wanted to provide this information initially because he was concerned he would get “busted”. Upon completion of the statement, the appellant looked it over and told the officers that he would sign it when his lawyer had read it. The appellant was then returned to his cell at 5:40 a.m.

57Detective Rettig sent another officer to interview Cadman and his girlfriend Glysinskie. They both stated that the appellant had not been there the evening of the 4^th^. Upon receiving that information, Rettig and Hayes spoke to the appellant at 10:15 a.m. and confronted him with these statements. The appellant flew into a rage and yelled that Cadman and Glysinskie were lying. When asked, the appellant refused to give a further statement. The officers testified that this interview was more accusatory and confrontational than the previous interviews and that the appellant said a number of times that he did not want to give another statement.

58The police released the appellant. Detectives Rettig and Hayes testified that they did not have enough evidence to hold him, but that they would continue to investigate him.

(ii) Analysis of the validity of the initial arrest

59As I have indicated, the issues concerning the validity of the arrest were argued on the basis that if the lead investigators, Detectives Rettig and Hayes, had reasonable grounds to arrest, the arrest made by Constables Wortley and Verkoeyen was valid. The appellant submits that the police did not have reasonable grounds to make the arrest. He was therefore subjected to an arbitrary arrest in violation of s. 9 of the Charter. Further, any of the investigative procedures that depended on the validity of the arrest, such as the search incident to the arrest, were unlawful and also constituted Charter violations. Finally, the initial illegal arrest tainted any of the other evidence obtained from the appellant such as the various statements he made to the arresting officers and the investigating officers.

60Mr. Copeland argued the arrest and related grounds of appeal. He conducted a meticulous review of the facts in an attempt to show that the police lacked reasonable grounds for the arrest. He submits that there were three bodies of evidence available to the police at the time of the arrest: the eyewitness identification of the perpetrator, the spotting of a red pick-up truck in the area, and animus or motive. He submits that the police lacked both objective and subjective grounds for the arrest. He particularly relies on the following points:

The physical description of the perpetrator, especially the height, more closely resembles Teddy Backhouse rather than the appellant.
The evidence of animus was non-specific and in any event applies to Teddy as well as the appellant.
There had been no recent incident between the appellant and Steptoe.

61The appellant submits that the trial judge failed to scrutinize the unreasonable parts of Detective Rettig’s evidence, especially that after reading Sharianne’s statement he seized upon the appellant as the perpetrator despite the obvious inconsistencies. The appellant also submits that the trial judge failed to address the significance of the fact that the appellant was released without being charged.

62After a review of the facts, the trial judge concluded that the police had reasonable grounds to arrest the appellant. In my view, this conclusion was open to him.

63For an arrest to be valid, the police officer must have reasonable grounds to believe that the suspect committed the indictable offence. The officer must have both objective and subjective grounds. See R. v. Storrey (1990), 53 C.C.C. (3d) 316 (S.C.C.) at 324.

64The evidence available to the police at the time of the arrest included the following:

Sharianne had identified the appellant and his brother as the perpetrator;
The estimates of height given by the eye-witnesses varied from 5’9” to 6’; the appellant is 5’7”; his brother is 6’ tall but usually appears taller because he wears motorcycle boots;
The curly hair described by one witness was closer to that of the appellant, although the appellant usually wears his hair short;
The build of the perpetrator more closely resembled the appellant, who was 5’7” and weighed 190 pounds, than his brother who was 6’ tall and weighed 207 pounds;
Officers who knew the appellant and his brother believed that the description given by Sharianne and the neighbours most closely matched the appellant;
There was a well-known feud between the Backhouses and the Steptoes;
Recently, the appellant had been involved in an incident in which he struck the victim Joseph Roy with his vehicle;
The appellant and his brother had made threats against Neil Steptoe;
The appellant and his brother were known to drive around in a red pickup truck owned by Teddy;
The police were also aware of the appellant’s and Teddy’s reputations for violence and of their criminal records; and
Neil Steptoe had enemies other than the Backhouses.

65In considering whether a warrantless search is valid, it is important to bear in mind the fact that the context surrounding such a search will be quite different than the context in which a search is undertaken pursuant to a warrant. In the latter case, police will typically have had more time to assess the situation. As Doherty J.A. pointed out in R. v. Golub (1997), 117 C.C.C. (3d) 193 (Ont. C.A.) at para. 18:

The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.

66Based on the information available to the police in the early hours after the shooting, their decision to arrest the appellant was reasonable. This was the very epitome of a volatile, potentially dangerous and rapidly changing situation. Three people had been shot, two of them fatally. An armed and dangerous man was at loose in the community. Suspicion immediately and reasonably focused on the appellant and his brother because of Sharianne’s statement and the well-known animus between the Backhouse and Steptoe families. The appellant had recently been involved in a court case in which one of the victims of this shooting, Roy, had been a victim. A truck of the kind associated with the Backhouses was thought to have been in the area at the time of the shooting. Officers who knew the appellant and his brother believed that the appellant best fit the description given, despite the discrepancies.

67The appellant rightly relies upon what the Supreme Court said in Chartier v. Quebec (Attorney General) (1979), 48 C.C.C. (2d) 34 (S.C.C.) at 56, where the court explained the duty on a police officer in these terms:

For a peace officer to have reasonable and probable grounds for believing in someone's guilt, his belief must take into account all the information available to him. He is entitled to disregard only what he has good reason for believing is not reliable. [Emphasis added.]

68The appellant submits that the descriptions given by the eyewitnesses did not fit the appellant and by ignoring these discrepancies, the police were engaging in “tunnel vision”. In my view, this was not a case like Chartier where there was a distinct dissimilarity between the perpetrator and the suspect. It was open to the officers in this case to conclude that the descriptions given by the eyewitnesses, especially by Sharianne, had to be viewed as estimates of height and weight. They were entitled to bring their own judgment to bear based on their personal knowledge of the appellant and his brother against the backdrop of the evidence of motive.

69In Storrey at pp. 323-24, the court discussed the grounds for making a warrantless arrest. The court pointed out that on the one hand, the police do not have to have anything like a prima facie case against a suspect in order to lawfully arrest him, but on the other hand they are not entitled to shut their eyes to the obvious. In the early hours after the shootings there were no obvious facts that required the police to discard the appellant as a reasonable suspect. In my view, the arrest was lawful.

70The appellant submits that the trial judge failed to consider the significance of the decision to release the appellant without charge. In my view, the fact that the police ultimately decided not to charge the appellant at that time does not undermine the validity of the original arrest. As events progressed, the officers could reasonably have concluded that the best course of action was to release the appellant. One important piece of evidence had not panned out—Teddy Backhouse and his red truck could not be associated with the shootings. That left the police with somewhat unreliable eyewitness accounts and evidence of animus. Sharianne’s belief that the Backhouses were involved was not admissible evidence in court. The police could have reasonably concluded that the prudent manner of proceeding was to release the appellant and continue the investigation.

71Finally, as a matter of policy, in deciding whether police had reasonable grounds to arrest I would be hesitant to attach any weight to the decision of a police officer to subsequently release a suspect. The courts should avoid an analysis of events that encourage police to detain suspects unnecessarily for fear that the decision will be held against them when the validity of the arrest is scrutinized.

Issue 2: The right to counsel

72The right to counsel issue arises out of events at the roadside when the appellant was arrested by Constables Wortley and Verkoeyen. The appellant was advised of his right to counsel and was asked whether he understood. Wortley then asked the appellant whether he wished to call a lawyer now and the appellant replied, “but I don’t have a lawyer.” The officer then told the appellant that a list of lawyers could be provided to him at the station. Wortley testified that the appellant said “yes” in response to whether he understood his right to counsel and nodded like he understood when told the list of lawyers would be provided at the station. While Wortley was advising the appellant of his rights, Constable Verkoeyen was conducting a pat-down search of the appellant. Wortley then began to question the appellant by asking him whether he knew what the arrest was for and where he had been. In answer to the last question, the appellant said that he had just come from his family residence where he had been watching the hockey game all night.

73At the police station, another officer informed the appellant of his right to counsel. The appellant responded, “I probably don’t have to because I had nothing to do with it”. However, after he was searched and had his clothes taken away the appellant asked to speak to his lawyer and was provided with a telephone to do so.

74In the initial interview at the police station, the appellant stayed with the story that he had been at his family’s home. When the investigating officers told him that his mother had not supported this alibi, the appellant changed his story and claimed that he had been with Cadman and Glyzinskie.

75The appellant submits that when, at the roadside, he said “yes” or nodded or said, “but I don’t have a lawyer”, he was exercising his right to counsel. Accordingly, the police were required to refrain from questioning him until he had a chance to speak to a lawyer at the police station. Their failure to refrain from questioning was a violation of s. 10(b) of the Charter.

76The law in this area is relatively well settled. Where a detainee asserts a desire to consult counsel, s. 10(b) of the Charter imposes two duties on the police. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. Second, the police must cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel. R. v. Manninen (1987), 34 C.C.C. (3d) 385 (S.C.C.).

77The issue in this case is essentially a factual one: did the appellant assert his desire to speak to counsel. In R. v. Baig (1987), 37 C.C.C. (3d) 181 (S.C.C.) at 183, the court approved of the following statement from R. v. Anderson (1984), 10 C.C.C. (3d) 417 (Ont. C.A.), at 431:

I am of the view that, absent proof of circumstances indicating that the accused did not understand his right to retain counsel when he was informed of it, the onus has to be on him to prove that he asked for the right but it was denied or he was denied any opportunity to even ask for it.

78As I have said, whether the appellant asked for the right to consult counsel and it was denied or whether because of the circumstances he was denied any opportunity to even ask for it were principally questions of fact. The issue was clearly raised at trial in submissions on the voir dire. Crown counsel’s position at trial was that the appellant had not been asserting a desire to exercise the right. In the alternative, the Crown submitted that even if there was a violation, the evidence should not be excluded because it would inevitably have been discovered. The defence position was that the appellant had asserted a desire to speak to counsel. Defence counsel submitted that the police clearly understood the appellant was asserting his right to counsel because of Wortley’s immediate response that there was a list of lawyers at the police station. Counsel also took the position that one interpretation of the events was that the appellant said “yes” or nodded in the affirmative when asked whether he wished to speak to a lawyer now. Defence counsel also took the position that the subsequent statements to the investigating officers were linked to this initial roadside statement, so that all of them would have to be excluded.

79Unfortunately, the trial judge did not deal with these issues in his subsequent reasons. After briefly referring to some of the evidence, the trial judge said the following:

As to the violations of the Charter submitted to the Court for its consideration that encompass section 7, 9, 10(a) 10(b) and 11(d), I find no evidence to support any such breach of these provisions. I find that the right to counsel was provided without delay and I conclude he understood his right to silence. [Emphasis added.]

80These reasons were insufficient in the circumstances. They did not satisfy the functional requirements as laid down in R. v. Sheppard, 2002 SCC 26 at para. 55. The trial judge did not resolve the fundamental factual issue of whether the appellant asserted his right to speak to counsel. Without resolving that issue he could not determine whether the appellant’s right to counsel was infringed. His bare conclusion that there was no violation, in the face of contradictory or confused evidence from the police officers, cannot stand. See R. v. Chappell (2003), 172 C.C.C. (3d) 539 (Ont. C.A.) at paras. 18 – 22.

81In my view, this court is in no position to resolve the right to counsel issue. Whether there was a violation depended upon findings of facts such as the following:

When the appellant nodded or said “yes” was he indicating merely that he understood his rights or was he indicating that he did wish to consult counsel?
Alternatively, when the appellant said, “but I don’t have a lawyer”, was he asserting his desire to speak to counsel?
Having regard to the circumstances, particularly that the appellant was given the information about his right to counsel at the same time he was subjected to a pat-down search and that the questioning started immediately thereafter, did the appellant have a reasonable opportunity to assert his desire to consult counsel?

82A violation of the right to counsel could not only impact on the admissibility of the roadside statement but also the subsequent statements at the police station. The Crown at trial argued that the evidence should not be excluded because its admission would not affect the fairness of the trial. The Crown relied on the theory that the statement would inevitably have been discovered because the appellant would have made the false statement about his whereabouts even if provided with an opportunity to consult counsel. The burden is on the Crown to prove inevitable discovery on a balance of probabilities. See R. v. Harper (1994), 92 C.C.C. (3d) 423 (S.C.C.) at 429 –30 and R. v. Stillman (1997), 113 C.C.C. (3d) 321 (S.C.C.) at para. 116. Again, this court is in no position to make the factual findings necessary to determine that issue. If contrary to the Crown’s submission, the admission of the roadside statement will affect the fairness of the trial, it will be inadmissible without consideration of the other factors from R. v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.). See R. v. Stillman at para. 118.

83Finally, if the appellant’s roadside statement was obtained in violation of s. 10(b) and must be excluded under s. 24(2), the admissibility of the other statements made by the appellant to the police at the station will have to be determined bearing in mind the temporal connection between the roadside statement and the statements at the station and the fact that the latter referred back to the alibi given at the roadside. See R. v. McIntosh (1999), 141 C.C.C. (3d) 97 at paras. 60-67, R. v. I. (L.R.) (1993), 86 C.C.C. (3d) 289 (S.C.C.) and R. v. Caputo (1997), 114 C.C.C. (3d) 1 (Ont. C.A.).

Issue 3: The search at the police station

84The appellant submits that even if there was a lawful arrest and it was therefore open to the police to search him as an incident to the arrest, the seizure of the clothing constituted a strip search. He submits that R. v. Golden, 2001 SCC 83 applies. In Golden at para. 47, Iacobucci and Arbour JJ. adopted the following definition of a strip search: “the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments”. The search and seizure in this case does not meet this definition. It was not conducted for the purpose of inspecting the appellant’s private parts or his undergarments. The appellant was told to remove his clothing so that the clothing could be inspected and seized for further testing. He was immediately provided with new garments. However, I would not want to rest this decision on such a technical distinction. While the search and seizure in this case could not be described as a “humiliating, degrading and traumatic experience” as is the classic strip search such as occurred in Golden (para. 83) and as described in some of the evidence referred to in that case at para. 90, the appellant was nonetheless told to remove all his clothing in the presence of a police officer.

85For a search incident to arrest to be lawful it must meet three conditions. The arrest must be lawful. The search must be incident to the arrest, i.e., related to the reasons for the arrest itself. Finally, the search must not be conducted in an abusive fashion. In my view, the seizure of the appellant’s clothing was a lawful search. See Stillman at para. 127.

86I have already explained that, in my view, the arrest was lawful. Second, the search was related to the reasons for the arrest itself. The police had reasons to believe that the appellant had been involved in a shooting that had taken place only hours earlier. The seizure of the appellant’s clothing was for the purpose of inspection and examination for gunshot residue or blood and was related to the reasons for the arrest. The police needed to preserve the evidence and to prevent its disposal. They could only do so by seizing the clothing.

87Finally, the search must not be conducted in an abusive fashion. In the context of a strip search, the court will look to circumstances such as whether persons of the same gender as the accused conducted the search, whether the officers used a minimum of force to conduct the search and whether strip search was conducted as quickly as possible. See para. 101 of Golden and reference to the guidelines from the Police and Criminal Evidence Act, 1984 (U.K.), c. 60, Code of Practice C, Annex A.

88In my view, even if the seizure of the appellant’s clothing was a strip search governed by Golden, the Crown has established its reasonableness. In Golden, the court held that for a strip search to be lawful, there must be grounds beyond the reasonable and probable grounds necessary to justify the lawfulness of the arrest itself, unlike the normal search incident to arrest. Iacobucci and Arbour JJ. held at para. 99 that the police must establish reasonable and probable grounds justifying the strip search itself. Further, the strip search should ordinarily be conducted at the station and not “in the field” unless there are exigent circumstances (para. 102).

89Given the proximity in time between the shootings and the appellant’s arrest, the police could reasonably have believed that evidence would be obtained from the appellant’s clothing, even though one of the arresting officers testified that the appellant seemed fresh in appearance. Finally, the seizure was conducted in a non-abusive fashion. Officers of the same gender as the appellant took the clothing at the police station without any use of force. The seizure was done quickly and without any apparent humiliation of the appellant.

90That said, I would not want to be taken as holding that all of the Golden conditions necessarily apply to the type of seizure that occurred in this case. In my view, where the police have lawfully arrested a suspect in a very recent homicide such as occurred in this case, they are entitled to seize his or her clothing for the purpose of preserving evidence. There are compelling reasons for authorizing such seizures as an incident to arrest for homicide since it is reasonable to suspect that a forensic examination of the clothing might yield evidence. I will come back to this in my analysis of the appellant’s participation in the gunshot residue test. I do not think it necessary for the officers to have reasonable grounds beyond those required for the arrest itself. It should be sufficient that the seizure is related to the reasons for the arrest and is conducted at the police station in a non-abusive fashion.

Issue 4: Retention of the clothing and s. 489.1 of the Criminal Code

91The appellant submits that even if the clothing was lawfully seized as an incident to the arrest, the seizure became unreasonable because the clothing was not returned to the appellant after he was released. The appellant also argues that the continued seizure was unlawful because the police did not make a return before a justice of the peace as required by s. 489.1 of the Criminal Code. I can deal with the first issue summarily. Although the police released the appellant, they never resiled from the position that they had reasonable and probable grounds to make the arrest. I have already explained that in this case the officers were entitled to seize the clothing for forensic examination. Until that examination was complete it was reasonable for the police to retain the clothing for its evidentiary value. The delay in submitting the appellant’s jacket to the Centre for Forensic Sciences was not explained, but the delay of several months did not render the seizure unreasonable. There is no question that the police continued to believe that the appellant was responsible for the killings. It was reasonable to retain the clothing he was wearing the night of the homicide for its evidentiary value.

92The application of s. 489.1 of the Criminal Code requires a more extensive discussion. The relevant part of the section is subsection (1):

489.1 (1) Subject to this or any other Act of Parliament, where a peace officer has seized anything under a warrant issued under this Act or under section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,

(a) where the peace officer is satisfied,

(i) that there is no dispute as to who is lawfully entitled to possession of the thing seized, and

(ii) that the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding,

return the thing seized, on being issued a receipt therefor, to the person lawfully entitled to its possession and report to the justice who issued the warrant or some other justice for the same territorial division or, if no warrant was issued, a justice having jurisdiction in respect of the matter, that he has done so; or

(b) where the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii),

(i) bring the thing seized before the justice referred to in paragraph (a), or

(ii) report to the justice that he has seized the thing and is detaining it or causing it to be detained

to be dealt with by the justice in accordance with subsection 490(1). [Emphasis added.]

93The important part of subsection (1) for the purpose of this issue is in the opening phrase: “where a peace officer has seized anything under a warrant issued under this Act or under section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament”. The respondent submits that the seizure of the clothing was done under the common law power of search incident to arrest and not “in the execution of duties” under the Criminal Code or any other Act of Parliament. Counsel for the respondent points out that there are certain statutory warrantless search powers in the Criminal Code and other federal legislation, in addition to the powers in ss. 487.11 and 489 that are specifically set out in s. 489.1, that would come within the meaning of execution of duties under the Criminal Code or any other Act of Parliament. As an example, the police have the power to seize counterfeit money under s. 462 of the Criminal Code without a warrant and to seize contraband and evidence without a warrant in certain circumstances under s. 11 of the Controlled Drugs and Substances Act, 1996, c. 19. The respondent argues, therefore, that the phrase “in the execution” was added to bring in other statutory warrantless search powers, but not those powers recognized only by the common law.

94The respondent also makes the broader submission that in making a warrantless search incident to arrest the officer was exercising a power or discretion rather than executing a duty. See Cloutier v. Langlois (1990), 53 C.C.C. (3d) 257 (S.C.C.) at 278.

95The appellant, on the other hand, contends that the police did seize his clothing while in the execution of their duties under the Criminal Code, namely in the course of the exercise of their arrest power under s. 495(1).

96A recent expression of the modern rule of interpretation of statutes is found in R. v. Ulybel Enterprises Ltd., 2001 SCC 56 at para. 28:

In numerous cases, this Court has endorsed the approach to the construction of statutes set out in the following passage from Driedger's Construction of Statutes (2nd ed. 1983), at p. 87:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

97I will consider the interpretation of s. 489.1 in light of these principles.

(i) Grammatical and ordinary meaning

98The place to start in interpreting s. 489.1 is with the grammatical and ordinary meaning of the words of the section. For convenience I repeat the opening words of subsection (1):

Subject to this or any other Act of Parliament, where a peace officer has seized anything under a warrant issued under this Act or under section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament … [Emphasis added.]

99The wording of the section suggests several things. First, the section is not limited to search under warrant. This is apparent because of the reference to sections 487.11 and 489, which are warrantless search powers.

100Second, Parliament has used a phrase, “execution of duties”, that is capable of a very broad meaning and has tended to be given a broad interpretation, not limited to express statutory powers. A police officer will be found to be in execution of his or her duty if acting in accordance with statutory or common law authority. See R. v. Plamondon (1997), 121 C.C.C. (3d) 314 (B.C.C.A.) at para. 30 and R. v. Dedman (1985), 20 C.C.C. (3d) 97 (S.C.C.) at 111. In particular, this court has held that an officer is in the execution of his duty when he is conducting a search incident to arrest: R. v. Brezack (1949), 96 C.C.C. 97.¹

101I cannot accept the respondent’s broad submission that s. 489.1 does not apply to a warrantless search and seizure incident to arrest because the officer is not performing a duty but exercising a discretion. If that were the case, a police officer conducting a search incident to arrest would similarly not be in the execution of his duty for the purposes of obstruction of a police officer in the execution of his or her duty under s. 129 or assaulting a police officer engaged in the execution of his or her duty under s. 270 of the Criminal Code. Generally speaking the phrase “execution of his duty” in those sections has been held to capture the notion that the officer is engaged in some particular duty as opposed to merely being “on duty” or taking part in activity that is merely related to the performance of a duty. See R. v. Prevost (1988), 42 C.C.C. (3d) 314 (Ont. C.A.) at 317-18 and R. v. Noel (1995), 101 C.C.C. (3d) 183 (B.C.C.A.) at paras. 15 – 17.

102I do note that there is a slight difference in the wording between ss. 129 and 270, which refer to “execution of his duty”, and s. 489.1, which refers to “execution of duties”. I do not place a great deal of weight on that difference, which I suspect was done to make the provision gender neutral. The more difficult question is whether the addition of the words “under this or any other Act of Parliament” was intended to narrow the application of the provision to statutory powers of search and seizure. In my view, the addition of those words was simply to limit the application of the section to criminal or other federal investigations. The phrase “execution of duties” or “execution of his duties” is so broad that it would encompass duties under provincial legislation.² Viewed this way, the words of limitation “under this or any other Act of Parliament” are necessary to make it clear that the section was not intended to apply to seizures made in execution of duties under provincial legislation. The phrase does not need to be read as limited to the application of specific seizure powers in federal legislation.

103In any event, whatever may be said about other common law powers, it seems to me that an officer would be in execution of duties under the Criminal Code when making a search incident to an arrest for a Criminal Code offence. The arrest involves the exercise of a Criminal Code power. The officer is in execution of a duty directly tied to the enforcement of the Criminal Code.

(ii) Legislative history and intention of Parliament

104The predecessor to s. 489.1 was added to the Criminal Code by the Criminal Law Amendment Act, 1985, R.S.C. 1985 (1^st^ Supp.) c. 27. The CLAA contained amendments dealing with a number of subjects including search and seizure provisions in the Criminal Code and other federal legislation. It is apparent that some of the amendments were

motivated in part to comply with the Charter of Rights and Freedoms. Thus, for example the power to issue writs of assistance was abolished. See CLAA, s. 199.

105Before the enactment of s. 489.1, a peace officer was obliged to make a return to a justice of the peace in respect of a seizure under a warrant issued under former s. 443 or while executing a warrant issued under s. 443 and seizing things not specified in the warrant pursuant to former s. 445. The officer’s obligation under s. 443 or s. 445 was to carry the things seized before the justice who issued the warrant or some other justice of the same territorial jurisdiction. Then, under former s. 446 (now s. 490) the justice made an order detaining the things seized unless the prosecutor otherwise agreed.

106With the enactment of s. 489.1, the obligation to carry the things seized before a justice was pulled out of ss. 443 and 445 (now ss. 487 and 489) and placed in s. 489.1. Section 490, like former s. 446, provided for the making of orders detaining the things seized, but also more explicitly recognized a duty to return items to their lawful owner, unless the things were required for the purposes of the investigation, preliminary inquiry, trial or other proceedings. However, the application of s. 490 is dependent on s. 489.1. The opening words of s. 490 read as follows:

(1) Subject to this or any other Act of Parliament, where, pursuant to paragraph 489.1(1)(b) or subsection 489.1(2), anything that has been seized is brought before a justice or a report in respect of anything seized is made to a justice, the justice shall, …

107It appears that one objective for the addition of s. 489.1 and some of the change in wording of s. 490 was to facilitate the return of items seized to their rightful owners.³ However, the change in wording also appears to have been an attempt by Parliament to enact a more comprehensive scheme that would apply to all seizures made under federal legislation, except that more specific provisions in the other legislation would prevail over the s. 489.1 and s. 490 procedures.⁴ Parliament removed the requirement to take things before the justice from the search warrant provisions and put in place a more generic procedure applicable to all seizures made under the Criminal Code and other federal legislation. The fact that the section covers a broad range of warrantless seizures indicates that it was not intended to be limited to seizures that arose out of some court process.

108The interpretation of s. 489.1 and related provisions that would best fulfill these objectives is to have the procedures apply to all seizures of property where police officers are in the execution of duties under the Criminal Code or other federal legislation.

(iii) The scheme of the Act

109Prior to the Charter, search and seizure was largely unregulated, aside from the search warrant regime in former s. 443. It is therefore not surprising that post-seizure judicial supervision was limited to seizures either pursuant to the warrant (s. 443) or in the course of executing a search warrant (s. 445). Most seizures by police before the Charter were made outside of judicial authorization pursuant to broad common law powers such as search incident to arrest or by relying upon the consent of the suspect. The courts paid little or no attention to these seizures since, as pointed out in Golden at para. 67, there were few effective remedies for unlawful seizures before the enactment of the Charter.

110Since proclamation of the Charter of Rights and Freedoms there has been an explosion of legislative activity in the field of search and seizure. In Hunter v. Southam, [1984] 2 S.C.R. 145, the Supreme Court of Canada held that warrantless searches for purposes of criminal investigation are presumptively unreasonable and in R. v. Collins the Court held that for a search to be reasonable it must be authorized by law. In the result, Parliament has moved quickly to fill in gaps in the legislative scheme of search and seizure to provide the police with the necessary tools to investigate crime while ensuring that the public and individual interests in privacy are adequately protected. This new legislation provides for a mixture of warrant and warrantless procedures. Although s. 489.1 was an early enactment after proclamation of the Charter it reflects Charter values and principles. It favours judicial supervision. It is part of a scheme that includes s. 490 and that is designed to regulate state activity that interferes with privacy interests. As indicated, it also reflects an interest in protecting the rights of victims of crime.

111It is sensible for Parliament to deal exhaustively and comprehensively with the disposition of property seized in the course of and for the purposes of criminal investigation. If the sections did not apply to warrantless common law seizures there would be a substantial gap in the legislative scheme. As pointed out in R. v. Golden at para. 84, warrantless personal searches incident to arrest constitute the majority of searches conducted by police.

(iv) The legislative context

112The final factor to consider is the legislative context. I have already touched on this factor. Section 489.1 is part of a scheme to protect property and privacy interests that is more fully developed in s. 490. Section 490 provides that where things have been brought before a justice or a report made to a justice in respect of anything seized under s. 489.1, there is an obligation on the justice to supervise its detention. The section also sets out an elaborate scheme to facilitate the return of items seized to their lawful owners. If s. 489.1 were given the narrow interpretation advocated by the Crown in this case, material seized in the course of common law searches incident to arrest would also fall outside the comprehensive scheme set out in s. 490 for supervising and ensuring return of items seized. As indicated, s. 490 applies only where the property or the report had been brought before the justice “pursuant to paragraph 489(1)(b) or subsection 489.1(2)”.⁵

113I can see no principled basis for favouring an interpretation of s. 489.1 that would limit its application to express statutory search and seizure procedures. The interests in preservation of property and returning property to rightful owners are the same whether the property is seized under a statutory warrantless procedure or under a common law procedure. If s. 489.1 did not cover warrantless seizures, victims of crime whose property was seized in a common law warrantless seizure would be denied the relatively summary procedure provided for in s. 490 and would be forced to embark on the more cumbersome and expensive replevin action in the civil courts. See R. v. Raponi, 2004 SCC 50 at para. 36. At para. 42 of Raponi, the court pointed out one serious gap in the s. 490 scheme in that the section did not “provide a clear route of challenge and appeal where it is alleged that property is seized in an unlawful manner”. I would not favour an interpretation of s. 489.1 that created another sizeable gap in the scheme for dealing with lawfully seized property.

114Finally, the narrow interpretation would create an unusual inconsistency in the application of the Criminal Code depending on the investigating police force. Since the RCMP are governed by federal legislation and therefore derive their powers and duties from federal legislation, arguably any seizure made by an officer of the RCMP would fall within s. 489.1. See Scott Hutchison, Canadian Search Warrant Manual 2003 (Toronto: Thomson Canada, 2003) at 168. On the other hand, if the respondent is correct in its interpretation on s. 489.1, a provincial police officer conducting the identical search and seizure would not have to comply with the section. While some variation in criminal investigations is to be expected because of the division of responsibility between the federal and provincial governments, I prefer an interpretation of legislation that encourages uniform application of the Criminal Code.

(v) Conclusion on the application of s. 489.1

115Accordingly, in my view, s. 489.1 applied to the seizure of the appellant’s clothing and that clothing should have been brought before a justice or a report should have been made to the justice in accordance with that section. The continued detention of the material seized was accordingly unlawful. It does not necessarily follow, however, that the continued unlawful detention violated the appellant’s Charter rights. The initial search and seizure was lawful and complied with the Charter. I need not decide whether the subsequent failure to comply with s. 489.1 could render the initial lawful seizure unreasonable. However, see Re Church of Scientology et al. and the Queen (No. 6), (1987), 31 C.C.C. (3d) 449 (Ont. C.A.) at 543 – 547. Even if the detention of the clothing did violate the appellant’s rights under s. 8, I would not exclude the evidence obtained by the analysis of the appellant’s jacket. I will more fully develop my reasons for that conclusion when I consider s. 24(2) of the Charter below.

Issue 5: The voluntariness of the appellant’s statements

116The appellant makes three arguments with respect to the voluntariness of his statements. He submits that the prosecution did not meet its burden of proving that his statements to the investigating officers at the police station following his initial arrest were voluntary. The focus of the appellant’s submissions was on the failure of the police officers to keep an adequate record of the statements and in particular their failure to videotape the statements. He also submits that the police offered the appellant an inducement that rendered his statements inadmissible. Finally, he submits that the trial judge reversed the burden of proof of voluntariness.

(i) Lack of sufficient record

117In a number of recent cases, including R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493 (Ont. C.A.) and R. v. Oickle, 2000 SCC 38, the courts have considered the adequacy of the record kept by the police of statements attributed to an accused. After noting that there is no absolute rule requiring recording of statements,⁶ Charron J.A. summarized the position of this court respecting the burden on the prosecution at para. 65 of Moore-McFarlane:

However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or videotape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt. [Emphasis added.]

118This, however, is not a case where there were reasons to believe that the failure to record the statements was suspect. According to the investigating officers, the appellant agreed to speak to them but only if his statements were not videotaped. It was open to the trial judge to accept this evidence, especially in the absence of any testimony from the appellant to the contrary. That said, I should not be taken as holding that it will always be an answer to the failure to videotape the statement that the suspect has refused to participate. It could become all too easy for the authorities to attempt to avoid the impact of this court’s decision in Moore-McFarlane by attributing to the suspect a refusal to have his statements videotaped. It would still be open to the police to tape record the statement, or at the very least electronically record the suspect’s wishes, to avoid any later dispute. Depending on the context, the trial judge might well view with concern a bare assertion by police officers that the suspect refused to be videotaped or even tape-recorded.

119In my view, it was open to the trial judge to find that there was an adequate record of the interrogation from which the trial judge could find that the Crown had proved that the statements were voluntary. The officers’ notes did not contain a complete record of all that was said and they admitted that they could not recall parts of what they or the appellant said during the several hours of interrogation. On the other hand, the trial judge was satisfied that the officers had provided an account of what took place during the interrogations and that the appellant’s statements were voluntary. I would not interfere with those findings.

(ii) Inducement

120The inducement said to render the statements involuntary was a statement by one of the officers between 2:32 and 2:56 a.m. that the appellant would be released if he provided an alibi that could be confirmed. As Iacobucci J. said at para. 57 of Oickle:

In summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. [Emphasis added.]

121It was open to the trial judge to find that in the context of this case, the officer’s apparently factual statement to the appellant that he would be released if he could provide an alibi that could be confirmed did not raise a reasonable doubt that his will had been overborne. This was not an “explicit offer by the police to procure lenient treatment in return for a confession” which Iacobucci J. identified at para. 49 of Oickle as a “very strong inducement [that] will warrant exclusion in all but exceptional circumstances”. The statement to the appellant was an accurate appraisal of the circumstances. It would be an odd result if police could not invite a suspect, who was protesting his innocence and was willing to speak to the police, to provide an alibi that could clear him of liability. That is what occurred here. During the investigation the appellant spoke to his lawyer on several occasions. He told the police that he was willing to talk, although not on video. He was protesting his innocence and offering up an alibi. It was open to the trial judge, considering this context, to find that the appellant’s statements were voluntary.

(iii) Reversal of burden of proof

122Finally, the appellant submits that the trial judge reversed the burden of proving voluntariness in his reasons:

Also, I find no promise or threat or conduct that deprived the accused during his interrogation of an operating mind. There is no evidence on the date that the statements were taken to establish such a submission which would provide their exclusion.

123The language in this part of the reasons is confusing and contains several errors of law. As I read the record, there was never any suggestion that the appellant lacked an operating mind. Thus, this part of the reasons is superfluous. However, it is an error to tie a promise or threat to an operating mind. A statement can be involuntary if the product of a threat or inducement, even if the accused has an operating mind. See R. v. Oickle at para. 26. It was also an error to suggest that there must be evidence to “establish” lack of an operating mind. The requirement that the accused have an operating mind is an aspect of voluntariness. The burden is on the Crown to prove that the statement was voluntary, including that the statement was the product of an operating mind.

124That said, in my view, these errors were not material in this case. As I have stated, whether the appellant had an operating mind was not a live issue in this case and later in his reasons the trial judge correctly addressed the question of burden of proof of voluntariness as it relates to threats or inducements. In part, he said the following:

Although the Crown is obliged to prove the voluntariness of statements, if the person providing the statement has been made aware of the charges which may be brought or is aware of the reason for arrest and thereafter makes a voluntary oral utterance or conscious statement, not provided in an atmosphere of fear, prejudice or hope of advantage then such a statement voluntarily given is admissible.

125Accordingly, I would not give effect to these grounds of appeal.

Issue 6: The gunshot residue test

126The gunshot residue test consisted of two parts. As indicated, the police washed the appellant’s hands. The police also seized the appellant’s clothing and on April 20, 1998, his jacket was sent to the Centre for Forensic Sciences. Under this heading I will consider the legality of the search of the appellant’s person to test for gunshot residue on his hands. Detective Rettig asked the appellant if he had fired a gun. The appellant responded, “I haven’t fire a gun in years except for a shotgun years ago when I had a F.A.C. I got nothing to hide.” The appellant was asked if he would submit to a hand washing sample for gunshot residue. After consulting with his counsel, the appellant said he would consent to the test, although his lawyer advised against it. Rettig told the appellant that the test would tell them whether he had fired a gun in the last while.

127Constable Skreptak performed the hand washing. He testified that he explained to the appellant that the test consisted of dabbing both hands between the thumb and index finger. He told the appellant that the test would show whether there was any gunshot residue present. He did not tell the appellant that the test could be positive because of transference, even if the appellant had not fired or handled a gun. Skreptak gave the appellant a consent form. The consent form reads, in part, as follows:

I, James Backhouse of the residence of 3729 Poplar Ave. Windsor, do hereby voluntarily authorize…Constable Michael G. Skreptak # 4433 of the Windsor Police Service, and other officers as deemed necessary to obtain the following samples and to seize the following - Gunshot residue Test. I have been advised and understand that I have the right to consult without delay, and that I may telephone any lawyer that I wish. I have further been advised that I have the right to free advice from a Legal Aid lawyer (1-800-265-0451), and that if I am charged with an offence, I may apply to the Ontario Legal Aid Plan for legal assistance. I fully understand that any items seized as result of this consent search may be used as evidence against me. No promises, threats or inducements of any kind have been held out to me by members of the Windsor Police Service or from any other person in authority in order to gain my consent. I have been informed and fully understand that I may refuse to consent to any search and that I may revoke my consent to search at any time.

The form was signed by the appellant and by officer Skreptak.

128There are at least two bases upon which the hand washing for the gunshot residue test could be legal: first, if the appellant gave a valid consent and second if the hand washing was a search incident to a lawful arrest. At trial, the appellant argued that he had not been provided with sufficient information to make an informed choice about whether to consent to the test. It does not seem that the trial judge resolved this issue. Rather, it appears that the trial judge was of the view that the hand washing could be justified as a search incident to arrest since he referred to this court’s decision in R. v. Golub, a search incident to arrest case, albeit in very different circumstances. I will deal with the consent issue first.

129The appellant submits that he did not give a valid consent and therefore the gunshot residue procedure could not be justified as a consent search. He argues that the police did not provide him with sufficient information to give rise to an informed consent. In particular, the police did not inform the appellant that the test could be positive if he had handled a recently fired gun or cartridges from the gun, even if he did not fire the gun.

130In R. v. Wills (1992), 70 C.C.C. (3d) 529 (Ont. C.A.), Doherty J.A. explained the approach to determining whether an accused has provided a valid consent. As he said at p. 541, a consent search must be one that is not only voluntary but also informed. At p. 546, he set down the criteria for finding a valid consent:

In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise be an unauthorized search or seizure requires that the Crown establish on the balance of probabilities that:

(i) there was a consent, express or implied;

(ii) the giver of the consent had the authority to give the consent in question;

(iii) the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;

(iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;

(v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested, and

(vi) the giver of the consent was aware of the potential consequences of giving the consent.

131Doherty J.A.’s approach was approved by the Supreme Court in R. v. Borden (1994), 92 C.C.C. (3d) 404 at 417 where Iacobucci J. wrote:

In order for a waiver of the right to be secure against an unreasonable seizure to be effective, the person purporting to consent must be possessed of the requisite informational foundation for a true relinquishment of the right. 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.

132The issue in this case concerns the sixth criterion from Wills. Was the appellant aware of the potential consequences of giving the consent? In Wills at p. 546 Doherty J.A. expanded on this criterion. He wrote that the person whose consent is sought “must appreciate in a general way what his or her position is vis-à-vis the ongoing police investigation”. That element of the test was met here. The appellant was arrested for murder and understood that he was the target of the investigation, not a mere witness. Doherty J.A. held at p. 547 that where the consent is sought from an accused and not a mere witness, the accused “must understand that if the consent is given the police may use any material retrieved by them in a subsequent prosecution”. Again, that was made clear in writing in this case in the consent form signed by the appellant.

133The appellant submits, however, that he was not aware of the potential consequences of giving the consent because he did not know that the test could be positive even if he did not fire the gun. He submits that the case is analogous to Wills. The accused in Wills had been driving a vehicle involved in an accident resulting in the death of two of the passengers. The accused agreed to provide breath samples for a breathalyzer test, even though a test at the roadside with the A.L.E.R.T. device had only registered a “warn” and not a “fail”. The police suggested to the accused that he take the breathalyzer test because of possible civil consequences arising from the accident. He took the test and it gave a reading over .08. Wills was later charged with impaired driving causing death. When he agreed to take the breathalyzer test, the police did not tell the accused that they were still undecided about whether to lay charges and that the breathalyzer reading could provide information used in making that decision. The police also did not tell the accused that one of the passengers in the vehicle had died. Also, unbeknownst to the police, the A.L.E.R.T. reading did not accurately reflect the accused’s blood-alcohol level because the device had not been properly calibrated. Doherty J.A. found that because of the non-disclosure and misinformation the accused failed to realize his potential jeopardy and the potential consequences of taking the test.

134Wills is different from this case in some respects. Unlike in Wills, this appellant knew of the potential jeopardy. He was aware that he was charged with murder and that the gunshot residue procedure was to gather evidence for a criminal prosecution. Wills is, however, similar to this case in one important respect. Like the accused in Wills the appellant had a general understanding that if he “failed” the test this could provide evidence for the prosecution. But that general information, as in Wills, was arguably overridden by the more specific information he had been given. In Wills, the accused foresaw no possibility of any immediate criminal consequences flowing from the test because he had not failed the A.L.E.R.T. test. Similarly, the appellant submits that he foresaw no possibility of any immediate criminal consequences because he was told that the test would show whether he had fired a gun but not that it would also show whether he had been in the vicinity of a recently fired gun. In Wills, Doherty J.A. concluded as follows at p. 548:

The misinformation provided by the A.L.E.R.T. device completely misled Mr. Wills (and everyone else) as to the potential criminal consequences of taking the breathalyzer test. The erroneous information provided by the machine so significantly impaired Mr. Wills’ understanding of the consequences of taking the test, that standing alone it would have negated the consent. [Emphasis added.]

135In my view, the misinformation provided to the appellant in this case similarly impaired his understanding of the consequences of the test so as to negative the consent. If the police officer had simply asked the appellant to submit to a gunshot residue test, he would have had sufficient information to make an informed decision. The name of the test suggests its purpose; that it would detect residue from firing of a firearm. The misinformation provided to the appellant, that the procedure would tell whether he had fired a gun, had the effect of overriding this general information. I accept that the information provided by the officer was inadvertent and innocent. The evidence suggests that the officer did not himself understand the consequences of the procedure. However, that was the same problem in Wills, where all involved were operating under the misapprehension that the A.L.E.R.T. had given an accurate assessment of the accused’s blood alcohol level.

136I have considered whether the fact that the appellant consulted with counsel before consenting was sufficient to establish a valid consent in accordance with the approach taken in R. v. Williams (1995), 98 C.C.C. (3d) 176 (B.C.C.A.). In that case, the accused consulted with his lawyer over the telephone and then at length in person at the police station before agreeing to provide hair samples that were to be used for DNA testing. The trial judge held that he would have found the consent was not valid because the police only told the accused that the DNA testing could eliminate him as a suspect, not that it could also incriminate him. However, the trial judge held that he was entitled to assume that in the absence of evidence to the contrary, the lawyer with whom the accused had consulted had given the accused proper advice. The Court of Appeal approved of this approach holding at para. 50 that, “There was no evidence running contrary to the inference that the appellant was fully advised by a competent lawyer before he gave his consent.”

137I am somewhat concerned about drawing inferences from the fact that an accused has spoken to a lawyer bearing in mind that the burden is on the prosecution to prove a valid consent. In any event, this case is different from Williams. It can fairly be inferred that a person told that DNA testing may clear him would understand after speaking to a lawyer that the reverse is also the case. I do not think the same can be said about the consequences of gunshot residue testing, which even the police did not fully understand. Further, in this case there was evidence to the contrary to show that the appellant did not understand the consequences. He agreed to take the test apparently because, as he said, he had not fired a gun for ten years. This rebuts the inference that he fully understood the consequences of consenting to the test.

138Accordingly, in my view, the consent provided by the appellant did not constitute a waiver of his right to be free from unreasonable search and seizure. It was not disputed that if the appellant did not consent to the procedure it constituted a search and seizure. The search and seizure being warrantless the burden was on the Crown to show that the procedure was reasonable. The Crown attempted to meet that burden by relying on the common law power to search as an incident to arrest.

(ii) Search incident to arrest

139In considering the application of the search incident to arrest power to obtain the hand washings it is important to consider the context. The evidence before the trial judge was that gunshot residue can be washed off hands. Also, the test should be performed as soon as possible and generally within five hours of the incident. The hand washing test involves simply dabbing the skin with “dabbers” which have two-sided sticky tape on one end. There was no evidence that the dabbing removed skin or hair or was in the least bit painful. It took approximately twelve minutes to complete the test.

140As indicated above, a valid search incident to arrest must meet three requirements:

(1) The arrest must be lawful.

(2) The search must have been conducted as an “incident” to the lawful arrest.

(3) The manner in which the search is carried out must be reasonable.

See R. v. Stillman at para. 27.

141I have already found that the arrest here was lawful. I am also of the view that the search was incident to the arrest. In R. v. Stillman at paras. 41 and 42, Cory J. approved of the following excerpt from R. v. Paul (1994), 95 C.C.C. (3d) 266 (N.B.C.A.), at p. 271, that:

Searches made incidentally to an arrest are justified so that the arresting officer can be assured that the person arrested is not armed or dangerous and seizures are justified to preserve evidence that may go out of existence or be otherwise lost. As neither circumstance existed here, the Crown cannot rely on a power that is incidental to an arrest to justify seizure of the hair samples ... . In my opinion, the power to search and seize does not extend beyond those purposes. [Emphasis added.]

142The hand washing was necessary to preserve evidence. It had to be conducted within a few hours of the handling of the firearm or the evidence would have been lost. However, the fact that a seizure may be necessary to preserve evidence does not determine the question of whether the search is a valid exercise of the search incident to arrest power. There are limits to the power. In Stillman, at para. 49, Cory J. held that the search incident to arrest power cannot include the power to seize bodily substances. The search conducted in this case did not involve the seizure of bodily substances. The officer merely used the “dabbers” to remove the gunshot residue from the appellant’s skin.

143As Lamer C.J.C. said in R. v. Caslake (1998), 121 C.C.C. (3d) 97 (S.C.C.) at para. 15, “Since search incident to arrest is a common-law power, there are no readily ascertainable limits on its scope. It is therefore the courts' responsibility to set boundaries which allow the state to pursue its legitimate interests, while vigorously protecting individuals' right to privacy.” The state had a legitimate interest in conducting the hand washing in this case to determine whether the appellant had been handling a firearm. The procedure was conducted within hours of the shooting, within the time that useful results could be expected to be obtained. The appellant’s right to privacy was not seriously compromised by the procedure. He was already lawfully under arrest, the procedure was not intrusive, and it involved only a washing of the surface of the skin. It was far removed from the strip search considered in R. v. Golden, or a body cavity search. I note that in Golden the Supreme Court held that even strip searches could be conducted as searches incident to arrest, provided certain conditions are met. See R. v. Golden at paras. 87, 99 and 104. No such additional conditions are necessary for a hand washing test.

144Finally, I am satisfied that the procedure was carried out in a reasonable fashion. The officer used no excessive force (in fact he did not use any force at all) and there is no evidence that the procedure was intrusive or conducted in a way that interfered with the appellant’s dignity or bodily integrity.

145Accordingly, in my view, the hand washing for gunshot residue did not violate the appellant’s rights under s. 8.

Issue 7: The exclusion of evidence under s. 24(2) of the Charter

146Under this heading, I intend only to consider two aspects of the evidence, both relating to the gunshot residue evidence. In short, if I am wrong and the gunshot residue procedure on the appellant’s hands was not a lawful search as a search incident to arrest and the retention of his clothing constituted an unlawful seizure, I would nevertheless not exclude this evidence under s. 24(2) of the Charter. I will not deal with the admissibility of the appellant’s statements at the roadside and at the police station. As I have said, the trial judge erred in law in his approach to the s. 10(b) violation. This court is not in a position to make the necessary factual determinations to resolve the s. 10(b) violation or the s. 24(2) issues. Those will be matters for the judge at the new trial.

(i) The hand washing

147With respect to the procedure to obtain the gunshot residue from the appellant’s hands, the most difficult issue is to determine whether admission of this evidence would affect the fairness of the trial. Matters affecting the fairness of the trial fall within one of the three groups of factors a court must consider in applying s. 24(2). The other factors concern the seriousness of the Charter violation and the effect of exclusion of the evidence on the administration of justice. See R. v. Collins at pp. 19-21. In R. v. Stillman, Cory J. laid out the analysis for determining whether admission of evidence affects the fairness of a trial. He summarized the analysis at para. 119 as follows:

Classify the evidence as conscriptive or non-conscriptive based upon the manner in which the evidence was obtained. If the evidence is non-conscriptive, its admission will not render the trial unfair and the court will proceed to consider the seriousness of the breach and the effect of exclusion on the repute of the administration of justice.
If the evidence is conscriptive and the Crown fails to demonstrate on a balance of probabilities that the evidence would have been discovered by alternative non-conscriptive means, then its admission will render the trial unfair. The Court, as a general rule, will exclude the evidence without considering the seriousness of the breach or the effect of exclusion on the repute of the administration of justice. This must be the result since an unfair trial would necessarily bring the administration of justice into disrepute.
If the evidence is found to be conscriptive and the Crown demonstrates on a balance of probabilities that it would have been discovered by alternative non-conscriptive means, then its admission will generally not render the trial unfair. However, the seriousness of the Charter breach and the effect of exclusion on the repute of the administration of justice will have to be considered.

148Thus, the first step is to determine whether the evidence resulting from the hand washing was conscriptive evidence. Cory J. described conscriptive evidence in these terms at para. 113: “If the evidence, obtained in a manner which violates the Charter, involved the accused being compelled to incriminate himself either by a statement or the use as evidence of the body or of bodily substances it will be classified as conscriptive evidence.” The test performed on the appellant in this case did not involve compelled incrimination by a statement or a bodily substance. The question is whether it involved use of the body as evidence. The only explicit example provided in Stillman itself of use of the body, was compelling a detainee to participate in a line-up (para. 95). However, it would seem that that the dental impressions obtained from Stillman would fall into the category of compelled use of the body as evidence (para. 120). In his discussion of conscriptive evidence at paras. 89 and 90, Cory J. explained why some uses of the body lead to the obtaining of conscriptive evidence, the admission of which affects the fairness of the trial.

It is repugnant to fair minded men and women to think that police can without consent or statutory authority take or require an accused to provide parts of their body or bodily substances in order to incriminate themselves. The recognition of the right to bodily integrity and sanctity is embodied in s. 7 of the Charter which confirms the right to life, liberty and the security of the person and guarantees the equally important reciprocal right not to be deprived of security of the person except in accordance with the principles of fundamental justice. This right requires that any interference with or intrusion upon the human body can only be undertaken in accordance with principles of fundamental justice. Generally that will require valid statutory authority or the consent of the individual to the particular bodily intrusion or interference required for the purpose of the particular procedure the police wish to undertake. It follows that the compelled use of the body or the compelled provision of bodily substances in breach of a Charter right for purposes of self-incrimination will generally result in an unfair trial just as surely as the compelled or conscripted self-incriminating statement.

So soon as that is said, it is apparent that a particular procedure may be so unintrusive and so routinely performed that it is accepted without question by society. Such procedures may come under the rare exception for merely technical or minimal violations referred to earlier. For example, assuming that fingerprinting is conscriptive, it is minimally intrusive and has been recognized by statute and practice for such an extended period of time that this Court readily found that it was acceptable in Canadian society. See the carefully crafted reasons of La Forest J. in Beare, supra. Similarly, the Criminal Code provisions pertaining to breath samples are both minimally intrusive and essential to control the tragic chaos caused by drinking and driving. [Emphasis added.]

149The rare exception for merely technical or minimal violations such as in the obtaining of fingerprints referred to above was discussed by Cory J. at para. 73 in these terms:

It is because the accused is compelled as a result of a Charter breach to participate in the creation or discovery of self-incriminating evidence in the form of confessions, statements or the provision of bodily samples, that the admission of that evidence would generally tend to render the trial unfair. That general rule, like all rules, may be subject to rare exceptions. [Emphasis added.]

150However, only a very short time later in R. v. Feeney (1997), 115 C.C.C. (3d) 129 (S.C.C.) at para. 71, the court found that fingerprinting in violation of the Charter following an unlawful arrest did involve obtaining conscriptive evidence and since there were no exceptional circumstances,⁷ the admission of the evidence would affect the fairness of the trial:

The fingerprints, as stated above, were taken in violation of the Charter. Moreover, they were conscriptive evidence -- the appellant was compelled to provide evidence from his body, his fingerprints, which incriminated him. The police would not have obtained this evidence without violating the appellant's Charter rights as they did not have reasonable and probable grounds to arrest him. The fingerprints were not discoverable. The fingerprints were conscriptive, non-discoverable evidence whose admission, given the absence of exceptional circumstances, would render the trial unfair. Consequently, the fingerprints are inadmissible.

151In R. v. Lewis (1998), 122 C.C.C. (3d) 481 (Ont. C.A.) at para. 36, this court also discussed the question of use of the body as conscriptive evidence where the accused opened a bag for a police officer. The bag contained contraband. Doherty J.A. held that requiring the accused to open the bag did not involve the use of the body “in any relevant sense in the obtaining of the evidence”. It was “a police search and the evidentiary value of anything seized in the search has no connection to the accused's physical involvement in the search.”

152In my view, the hand washing described in the evidence in this case did not constitute conscriptive evidence. The evidentiary value of the evidence did not depend upon the appellant’s physical involvement in the procedure. For example, the police were able to obtain similar evidence from the analysis of the appellant’s jacket. While the hand washing procedure was more intrusive than analysis of the jacket, the level of intrusion is not a measure of whether the evidence obtained is conscriptive. The procedure did not involve the use of the body as evidence in the same way as a line-up, fingerprinting or dental impressions. It was not the body that was used as evidence but material lying on the surface of the body.

153Even if I am wrong, and this procedure did involve the use of the body as evidence I would find that this was one of the exceptional cases referred to in Stillman and Feeney where admission of conscriptive evidence would not affect the fairness of the trial. The procedure as described in the evidence involved only a very minor intrusion. The police had reasonable grounds to believe they would obtain evidence. Finally, they obtained the appellant’s consent to the procedure. Even if that consent was flawed because the police did not provide the appellant with all the required information, they attempted to respect his rights and not interfere with his dignity or bodily integrity.

154With respect to the other factors listed in R. v. Collins, in my view they favour admission of the evidence. I will assume for the purpose of this discussion that the appellant’s s. 10(b) rights were violated at the roadside and that this must be taken into account. Nevertheless, at the police station the appellant was given opportunities to speak to his lawyer and did so on two occasions before consenting to the gunshot residue procedure. The procedure itself was conducted in a non-intrusive fashion and was completed in less than 12 minutes. The police had reasonable grounds to believe that evidence would be obtained through this testing. There was considerable urgency to carrying out the procedure as soon as possible. The Centre of Forensic Sciences recommends that the procedure be performed within five hours of the event. By 4:39 a.m. time was of the essence. Any violation of the appellant’s rights was not serious. Finally, exclusion of the evidence would tend to bring the administration of justice into disrepute given the seriousness of the charges and the importance of this evidence to the Crown’s case. This was one of the few pieces of circumstantial evidence that could bolster Cadman’s story.

(ii) The testing of the jacket

155The application of s. 24(2) to the admission of the results of the tests administered on the appellant’s jacket is more straightforward. This was not conscriptive evidence the admission of which would render the trial unfair. Crown counsel stated at the hearing of this appeal that in not following the procedure in s. 489.1 the police were acting in accordance with practice in many jurisdictions. See Scott Hutchison, Canadian Search Warrant Manual 2003, at p. 168, which takes the position that warrantless searches are not governed by s. 489.1. The scope of s. 489.1 was at least unclear and a credible argument can be made limiting the section’s reach to express search powers under federal legislation. Given the then existing uncertainty I would not stigmatize the officers’ conduct as actions taken in bad faith. The exclusion of this evidence would tend to bring the administration of justice into disrepute. This was physical evidence needed for a trial of the most serious offences. While there was some other circumstantial evidence, the results of this gunshot residue test was a piece of evidence that was capable of confirming in some part the testimony of Brian Cadman the principal, but highly unsavoury, Crown witness.

Issue 8: The admission of the similar fact evidence

156I have summarized the evidence respecting the Croft shooting above. This evidence was tendered by the Crown to prove identity in the Steptoe shootings. It was the theory of the Crown that the shooter involved in the Croft incident was also the person involved in the Steptoe shootings. This inference depended on two different chains of reasoning. First, the gun used in both shootings was the same. Therefore, evidence that the appellant, as the shooter in the Croft incident, was in possession of the gun used in the Steptoe shootings was some evidence that he was involved in the Steptoe shootings. This inference, while available, was not a strong one given the passage of time (eight months), the relative ease with which guns can be passed around in the criminal underworld, and Cadman’s evidence that the appellant was not in continuous possession of the gun following the Steptoe shootings. This line of reasoning, which flows simply from the fact that the appellant was in possession of the murder weapon at some time after the killings, does not depend on similar fact reasoning from disposition. The appellant’s possession of the murder weapon is nothing more than circumstantial evidence of his involvement in the killings.

157The second chain of reasoning does depend on similar fact reasoning from disposition. This reasoning depends on the theory that the manner in which the two shootings were carried out is so distinctive that it is likely that the same person committed both acts. Since there was evidence that the appellant carried out the Croft shooting, it was likely that he committed both shootings.

158The appellant does not dispute the admission of the evidence of the Croft incident for the purpose of demonstrating after-the-fact possession of the murder weapon. However, he submits that since the probative value of this evidence lies solely in the fact that the appellant had possession of the gun at the time of the Croft incident, only the fact of possession at that time should have been admitted; not the entire series of events surrounding the Croft incident.

159In his ruling admitting the evidence of the Croft incident, the trial judge referred to both chains of reasoning. He held that the test for admission of the evidence was the same, namely that the probative value must exceed the prejudicial effect. After a brief review of the factual background and reference to this court’s decision in R. v. B. (L.) (1997), 116 C.C.C. (3d) 481 and the decision of the Supreme Court of Canada in R. v. Arp (1998), 129 C.C.C. (3d) 321, the trial judge referred to some of the similarities and dissimilarities between the Croft and Steptoe shootings. He considered the similarities to be that the shooter was a male, approximately 30 years of age, a silver coloured revolver was used and there was evidence of animosity against the proposed victims. He also noted dissimilarities such as the fact that the shooter was not masked in the Croft incident.

160In the end, trial judge appears to have held that he did not have to decide whether the evidence was sufficiently similar to qualify as similar fact evidence. He said the following:

For the above reasons, while I do find a number of similarit[ies] to both events, and while I do not exclude the evidence as similar fact, rather than categorize the facts here as evidence purely falling under this category, I prefer to view this evidence as highly relevant and probative as circumstantial evidence.

161The trial judge then reviewed a number of cases such as Prosko v. The King (1922), 37 C.C.C. 199 (S.C.C.); cases concerning the admissibility of incriminating physical evidence found in the possession of the accused. He concluded that the evidence was highly probative and that the fact that there was a ten-month hiatus between the two incidents was a matter for the jury and “does not relate to its admission where it is relevant and highly probative”.

162The trial judge therefore held that all of the evidence surrounding the Croft shooting could be admitted. Defence counsel then asked the trial judge to reconsider or clarify his ruling and to admit only evidence of the fact that the appellant was in possession of the murder weapon. He indicated that the appellant was prepared to admit that he had been in possession of the weapon on September 3, 1998. Crown counsel at trial indicated that he was not prepared to accept this admission and wanted all the evidence admitted. The trial judge affirmed his earlier ruling that the evidence was admissible. He said the following:

In do not feel at this late date that [my ruling] should be re-argued, whether the evidence ruled admissible is now purely similar fact or circumstantial of the discreditable conduct. Therefore, my ruling will stand and the evidence is admitted for its original purpose as stated within that ruling.

163In my view, the trial judge erred in his approach to the admission of this evidence. It is true that whether considered as circumstantial evidence of guilt from possession of the gun or as similar fact evidence, the evidence of the Croft incident was admissible only if the probative value exceeded its prejudicial effect. However, the reasoning process required to make that determination was quite different.

164As I have stated above, the fact that the appellant was in possession of the murder weapon some ten months after the killings was some evidence of his involvement in the Steptoe shooting. But, it is the fact of possession that gives the evidence its probative value. The manner in which the appellant used the gun on the second occasion did not appreciably increase its probative value in considering the inferences to be drawn from possession. However, the manner in which the appellant used the gun dramatically increased the prejudicial effect. The evidence of the circumstances of the Croft shooting, of the motive for the shooting and of the fact that the appellant and his brother had previously attacked Croft, carried all of the classic dangers associated with evidence of discreditable conduct - the so-called reasoning and moral prejudice as explained in R. v. Handy, 2002 SCC 56 at para. 31: “The danger is that the jury might be confused by the multiplicity of incidents and put more weight than is logically justified on the [similar fact witness’s] testimony (‘reasoning prejudice’) or by convicting based on bad personhood (‘moral prejudice)”.

165The evidence of the manner in which the appellant used the weapon showed that the appellant had a disposition or propensity for great violence, which was highly prejudicial to a fair trial. Binnie J. explained the danger of admitting such evidence at para. 37 of Handy:

The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accused is called on to answer. It is excluded notwithstanding the general rule that all relevant evidence is admissible.

166The mere fact that the appellant had possession of a restricted weapon was itself discreditable conduct and did carry some prejudicial effect. However, the probative value of that evidence outweighed the prejudicial effect. To determine whether all of the evidence of the Croft incident was admissible, the trial judge had to apply the test for admission of similar fact evidence. If that evidence showed nothing more than a general propensity for violence it was inadmissible. Unfortunately, the trial judge did not address this issue.

167The template for making this determination is found in the decisions of the Supreme Court of Canada in R. v. Arp and R. v. Handy. I will start with Handy. As Binnie J. explained at para. 47 of that case, similar fact evidence is only exceptionally admissible because “the force of similar circumstances defies coincidence or other innocent explanation”. The evidence must show more than a general propensity. Where, as here, the prosecution seeks to have similar fact evidence admitted to prove identity, a high degree of similarity is required. In Handy, at para. 77, Binnie J. approved of cases that described the required degree of similarity in terms such as “highly distinctive or unique” or “evidence of a propensity to commit a particular crime in a particular and distinctive way”.

168The manner in which the two shootings in this case took place did not bear this highly distinctive or unique character. The only similarities were that the same gun was used, the perpetrator was a male and the perpetrator showed little concern that he might injure “innocent” parties, i.e., persons other than the intended victim. In my view, this showed nothing more than a general disposition towards violence. Against this were a large number of dissimilarities. The Croft shooting took place in broad daylight in the open. The Steptoe shootings took place late at night in a residence. The Croft shooter was unmasked. The Steptoe shooter was masked. The Croft shooting took place from a considerable distance and did not appear to be intended to kill. The Steptoe shootings were at close range and virtual executions. The Croft shooter was accompanied by another person (the appellant’s brother), the Steptoe shooter was alone.

169In R. v. Arp at para. 50, Cory J. explained the approach a trial judge might take where the prosecution seeks to rely upon similar fact evidence to prove identity:

(1) Generally where similar fact evidence is adduced to prove identity a high degree of similarity between the acts is required in order to ensure that the similar fact evidence has the requisite probative value of outweighing its prejudicial effect to be admissible. The similarity between the acts may consist of a unique trade mark or signature on a series of significant similarities.

(2) In assessing the similarity of the acts, the trial judge should only consider the manner in which the acts were committed and not the evidence as to the accused's involvement in each act.

(3) There may well be exceptions but as a general rule if there is such a degree of similarity between the acts that it is likely that they were committed by the same person then the similar fact evidence will ordinarily have sufficient probative force to outweigh its prejudicial effect and may be admitted.

(4) The jury will then be able to consider all the evidence related to the alleged similar acts in determining the accused's guilt for any one act. [Emphasis added.]

170In this case, there was neither a unique trade mark or signature nor a series of significant similarities. This was not a case like the recent decision in R. v. Snow, [2004] O.J. No. 4309 where this court held that items found in the accused’s possession were admissible along with evidence of the crimes from which those items had been obtained. In Snow, the evidence showed a quite unique pattern of behaviour before and after the killings that demonstrated a distinctive pattern of conduct on the part of the accused. At para. 63, this court described the evidence as showing an “extraordinary descent into criminality” in the weeks before and after the killings demonstrating the existence of behavioural characteristics that “significantly narrowed the likelihood” that anyone other than the accused committed the murders. The Croft shooting incident in this case was of an entirely different nature. It was significantly removed in time from the Steptoe shooting and demonstrated no distinctive pattern of conduct on the part of the appellant.

171Finally, the trial judge erred in relying upon evidence of the appellant’s motive in both shootings. As Cory J. explained in Arp, in assessing similarities the judge is only to consider the manner in which the acts were committed, not the evidence of the accused’s involvement in the acts. Evidence of motive is evidence of involvement, not evidence of the manner in which the acts were committed. The trier of fact could only consider evidence of motive if the similar fact evidence were otherwise admissible.

172Since the Croft incident did not have the required degree of similarity, the probative value did not outweigh the prejudicial effect. The trial judge should not have admitted the evidence. Crown counsel at trial ought to have accepted defence counsel’s offer of the admission that the appellant had possession of the murder weapon on September 3, 1998.

173In my view, this is not a proper case to apply the proviso in s. 686(1)(b)(iii) of the Criminal Code. This was highly prejudicial and inflammatory evidence that showed the appellant to be capable of great violence. It showed him to have a general disposition for violence and thus carried a high degree of moral prejudice. It also carried a degree of reasoning prejudice by distracting the jury from the proper focus on the charges themselves. It would not be appropriate to apply the proviso where such seriously prejudicial and inadmissible evidence has been introduced unless the case against the appellant were so overwhelming that no substantial wrong was occasioned. See R. v. Alward (1977), 35 C.C.C. (2d) 392 (S.C.C.) at 396, R. v. Leaney (1989), 50 C.C.C. (3d) 289 (S.C.C.), and R. v. Ambrose, R. v. Hutchison (1976), 30 C.C.C. (2d) 97 (S.C.C.) at 105-6.

174The case against the appellant was not so compelling that no substantial wrong or miscarriage of justice could be said to have been occasioned by admission of this evidence. The Crown’s case largely depended on the testimony of Brian Cadman, a highly suspect witness. There was some other circumstantial evidence, but it was not overwhelming. The appellant was in possession of the murder weapon but only some ten months later. The evidence did not show that he had had continuous possession of it since the killings. The gunshot residue suggested that the appellant may have been in contact with a firearm or cartridges, or something that had been in contact with a firearm shortly after the killing, but it could not place him at the scene of the shooting. Finally, while there was substantial evidence of motive, this same evidence tended to implicate the appellant’s brother. And, there was evidence that other persons, such as Brian Cadman, had a motive to kill the deceased.

175In my view, because of the erroneous admission of the similar fact evidence, there must be a new trial.

Issue 9: The admission of the hearsay evidence

176The trial judge recognized that the transcript of Steptoe’s testimony at the Highway Traffic Act trial did not fit within an established exception to the hearsay rule. He held that the evidence was admissible, however, under the principled approach, which looks to necessity and reliability. Necessity was obviously made out by reason of the declarant’s death. With respect to reliability, the trial judge noted that the declarant was under oath and subject to cross-examination by an agent acting on behalf of the appellant. Finally, while the issues at a murder trial and traffic offence trial are different, the issue of motive and what the appellant allegedly said to Steptoe were live issues and pursued at the Highway Traffic Act trial.

177In R. v. Hawkins (1996), 111 C.C.C. (3d) 129 (S.C.C.), the court considered the admissibility of preliminary inquiry evidence under the principled approach to hearsay in circumstances where the statutory exception in s. 715 of the Criminal Code did not apply. In that case, Lamer C.J.C. and Iacobucci J. found that there were sufficient guarantees of trustworthiness to warrant admission of the evidence. At para. 76, they focused on the fact that the preliminary inquiry “will involve precisely the same issues and the same parties as the trial” and that the hearsay dangers associated with testimony in such proceedings are minimal given that the testimony is under oath and “is also subject to the adverse party’s right to contemporaneous cross-examination”. The only safeguard lacking is that the declarant is not present before the trier of fact. In Hawkins, the court also seems to have placed some reliance, at para. 77, on the fact that the accused could have called the declarant. The declarant was not available as a Crown witness in that case because of the rule of spousal incompetence.

178There are two differences between this case and Hawkins. First, the issues at the murder trial and the Highway Traffic Act trial were similar but not precisely the same. The issue at the murder trial was the identity of the killer and, more particularly for these purposes, whether the appellant had an animus towards the deceased. The issue at the Highway Traffic Act case was also identity. However, at that trial the focus was on whether the deceased bore an animus towards the appellant. At the murder trial, it was in the appellant’s interest to minimize any animus. At the Highway Traffic Act trial, it was in the appellant’s interest to maximize any ill will that the deceased bore towards him to provide a motive for his falsely identifying the appellant as the driver.

179The second difference is that, unlike in Hawkins, the declarant is not available to be called as a witness. However, as was pointed out in Hawkins at para. 77 many of the established hearsay exceptions as well as many of the cases decided on the principled basis are premised on the unavailability of the declarant and thus that the trier of fact has no opportunity to observe his or her demeanour.

180More recently, in R. v. Merz (1999), 140 C.C.C. (3d) 259, this court considered the admissibility of prior testimony in a different context. In that case, the prosecution in a murder case sought to tender the testimony of the accused’s wife (the deceased) at her own trial for threatening her son. In the course of her testimony at that trial, the deceased had claimed that the accused had threatened to kill her. In that case, there were a number of factors that told against admissibility. The deceased was not subject to cross-examination by the accused or his counsel. As Doherty J.A. stated at para. 52:

I do not think that cross-examination by Crown counsel provides an adequate substitute for cross-examination by the appellant. This is particularly so where the cross-examination by Crown counsel occurs in the context of a trial involving an entirely different allegation. The Crown's concerns in prosecuting Ms. Murray on the charge of threatening her son would be very different from the appellant's concerns were he to have had the opportunity to cross-examine her on the threats allegedly made by him. Furthermore, Ms. Murray's evidence of the threats the appellant made against her was collateral to the main issue in her trial. It does not appear that she was even questioned on these threats during her examination-in-chief. She gave the evidence for the first time during cross-examination. [Emphasis added.]

181Another problem with the testimony in that case was that the deceased had a clear motive to testify falsely about threats made by the accused. She was attempting to secure her own acquittal and so it was in her interest to throw blame on him. Second, and more importantly, she was engaged in a bitter custody dispute with the accused.

182This case bears some resemblance to Merz in that there was evidence that Steptoe had a motive to falsely accuse the appellant because of the animus between the two.

183The standard of review of a trial judge’s decision to admit hearsay evidence under the principled approach is set out by Doherty J.A. in Merz at para. 49. Absent manifest error, the court must accept the trial judge’s findings of fact. However, the court applies a correctness standard to the ultimate question of whether the trial judge “properly applied the criteria relevant to the admissibility of the evidence to the facts as found by the trial judge”.

184In my view, the trial judge did not err in admitting the hearsay evidence. While the two cases did not involve precisely the same issue, the questions of identity and of motive or animus were important in both. The deceased was cross-examined on these issues in the Highway Traffic Act trial. Indeed, as the trial judge noted, it was the appellant’s agent who adduced the evidence of animus from the deceased. The appellant could hardly complain that this evidence, which he relied upon at the Highway Traffic Act trial, was unreliable. The issues in the two cases were sufficiently similar that the opportunity for contemporaneous cross-examination provided a sufficient circumstantial guarantee of trustworthiness. At common law, there was no requirement that the issues in the two proceedings be identical. It was sufficient that “the questions in issue shall be substantially the same, or… that the evidence relate to the same subject, or substantially involve the same material question, this does not require that all the issues in the two actions shall correspond”, per King J. in Walkerton (Town) v. Erdman Estate (1894), 23 S.C.R. 352 at p. 366. Whether or not this evidence would have been admissible at common law, the requirements of the common law exception are instructive in helping to determine the question of reliability. See R. v. Starr, 2000 SCC 40 at para. 20.

185In my view, the fact that, unlike Hawkins, the declarant was not available to be called by the appellant at the trial does not render the evidence inadmissible. If this were a requirement for reliability whenever it was sought to introduce evidence from a prior judicial proceeding, the exception would be rendered nugatory except in the very unusual cases like Hawkins where the declarant’s unavailability stems from his or her incompetency at the instance of the prosecution.

186In my view, the motive to testify falsely, which played such an important role in Merz, was of minor importance in this case. While the deceased may have had a motive to testify falsely against the appellant at the Highway Traffic Act trial, it was that very motive which the appellant relied upon to defend himself in that trial. Again, it would seem unusual for the appellant to now take the position that this evidence was unreliable. The appellant had a sufficient reason to test the accuracy and reliability of the deceased’s testimony on the relevant issues that it is admissible under the principled approach.

187The appellant raises one further issue. He submits that he did not have a full opportunity to cross-examine because the justice of the peace refused to permit him to cross-examine the deceased on a prior inconsistent statement. It would seem that the justice of the peace was not satisfied that the appellant’s agent had shown that the statement, which was contained in a police report of the accident, had been made by Steptoe. However, this ruling did not prejudice the appellant. The inconsistencies in the two versions of the statements were minor and the trial judge permitted the appellant to file the police report before the jury.

188I would add one caveat. I should not be taken as holding that testimony in any prior proceeding in which the accused happened to be a defendant would be admissible, even if the issues were similar in the two proceedings. For example, the first proceeding may be in respect of such a trivial matter that the accused might well not have felt it worthwhile to mount a full defence. Or, the evidence that the prosecution seeks to read in at the second trial may have been tangential to the issues in the first trial. In either case, it would be unfair to permit the prosecution to adduce the evidence in the second much more serious case. In my view, the trial judge would have the discretion to exclude the evidence to ensure that the appellant receives a fair trial. See R. v. Potvin (1989), 47 C.C.C. (3d) 289 (S.C.C.) at 307. The trial judge could also refuse to admit the evidence under the principled approach because the probative value was outweighed by its prejudicial effect. In this case, the trial judge considered whether the probative value of the evidence outweighed its prejudicial effect and concluded that the evidence should be admitted. I see no error in his decision in that respect.

Issue 10: The jury issues

189Several matters arose in the course of the trial concerning management of the jury that were a cause for some concern. One of the jurors learned that her babysitter lived very near one of the deceased’s relatives. Then, this same juror was nearly struck by a truck that made an improper turn. The truck had a vanity licence plate that indicated it was owned by someone with the name Steptoe. It turned out the truck was owned by a brother of the deceased. The trial judge conducted an inquiry and ultimately discharged this juror. He was satisfied that the other jurors were not affected by this incident and refused to declare a mistrial.

190The second incident came to the attention of the trial judge during deliberations. A police officer who was detailed to escort the jury to dinner engaged one of the juror’s in conversation. The trial judge conducted an inquiry and was satisfied that the conversation had nothing to do with the case. The juror was simply interested in the can of pepper spray that the officer had on his belt. Again, the trial judge refused to declare a mistrial.

191We did not call upon Crown counsel to respond to the grounds of appeal related to these issues. We were satisfied that the trial judge handled both incidents properly and that the appellant’s right to a fair trial was not infringed.

Issue 11: The warning respecting Brian Cadman

192Brian Cadman played an important role in the case. He provided the only direct evidence of the appellant’s guilt. He claimed that the appellant had confessed to him and had given him the murder weapon and his clothing to safeguard. Given the central role played by Cadman in this case and the significant frailties in his evidence a strong warning in accordance with R. v. Vetrovec (1982), 67 C.C.C. (2d) 1 (S.C.C.) was mandatory. The appellant submits that the warning given was insufficient. Cadman’s evidence suffered from at least these frailties:

He had given several prior statements to the police that were inconsistent with the guilt of the appellant.
His sworn videotaped statement contained important inconsistencies concerning the hiding of the gun and clothing.
He was put under intense pressure by the police to change his evidence.
He claimed that he and his spouse were threatened with the loss of their child.
He claimed that the police threatened that he would not get his insurance money if he did not change his story.
He was offered a substantial reward for changing his story.
Once he changed his story, he received benefits in the form of having charges withdrawn and serious charges not laid against him and his associates.
He had a significant criminal record including convictions for perjury, dishonesty and crimes against the administration of justice.
On his own story, he had possession of the murder weapon and other incriminating evidence and thus the opportunity to fabricate details of the crime.
He had his own motive for killing the deceased and roughly fit the description of the gunman.

193The trial judge gave the following instructions concerning Cadman in the charge to the jury:

Where a witness or witnesses have admitted to a lie or lies given under oath, and they occupy a central position in the trial, I must advise you in the strongest terms that there is a danger of accepting the evidence of an individual or individuals who have admitted to earlier lies and they have now corrected them and wish for you to accept their evidence as truthful.

In the case before you, a number of the principal witnesses for the crown have admitted that their statements at trial are in direct conflict with earlier sworn statements made by them. Two such witnesses are Brian Cadman and Jennifer Glyzinskie. Later, I shall speak of Matthew Croft. You should examine their explanation as to why they may have lied on an earlier occasion and why you should now accept their evidence as truthful, or if they lied during the course of the trial as to why they may have lied and then corrected the lie.

While it is for you to make your own determination on these vital issues, you should have regard to whether there is any evidence to support or corroborate the evidence of these witnesses concerning what they have now testified to, that the accused was the shooter on the 4^th^ of December, 1997. You should also consider the alternative as to whether there is any evidence before you which impairs its acceptance. Where you find that a witness has admitted to earlier lies or a lie, you must proceed to consider the evidence of that person with caution and the dangers associated therewith as to whether you may accept any of his or her evidence as reliable.

In your review of such witnesses, if a witness is of any unsavoury character or has a criminal record for dishonesty, you must review their evidence carefully, particularly since they have admitted to lies on an earlier occasion. Although you can believe part of their evidence, none of their evidence or all of their evidence of such a witness in your assessment of the trial as a whole, I repeat what I have stated earlier, that there is an extreme danger in accepting the evidence of any admitted liar. Having made this statement, I would also tell you that if your review of the evidence in its totality, you do accept their statements and their explanation for the lie or lies, you are not legally required to find other evidence to support them before you can rely on their testimony but once again, it is dangerous to do so unless you find support for it.

194The trial judge then began a review of Cadman’s evidence after reminding the jury that it was “extremely dangerous to convict on the uncorroborated evidence of a person caught lying”. In the course of that review of the evidence, the trial judge referred to inconsistencies in Cadman’s accounts of what the appellant had allegedly told him and of his own conduct in his various statements to the police and in his testimony. The trial judge then gave the jury this warning:

You should consider the numerous admissions as to his untruth about matters before the court on credibility, whether you are able to accept anything he says. You are also to consider whether there was pressure brought to bear on him by the police and whether there was an incentive to lie or make up a story. In this regard, you may consider the raids on his house and the frequent visits by the police.

195The trial judge reviewed some of the evidence of the police visits and concluded with the caution that the jury must review this evidence “with the greatest of caution on the issue of credibility, particularly if you find them to be lies”. The trial judge then reviewed some of Jennifer Glyzinskie’s evidence and then again returned to the problems with Cadman’s evidence. He noted that Cadman had received the benefits of withdrawal of charges he was facing and a promise that the police would not proceed against his associates. He also drew to the jury’s attention the money that Cadman and Glyzinskie had received from the police and he reiterated that while all the evidence must be carefully reviewed there were “dangers of accepting the evidence of any admitted liar”. He repeated that the jury should look to see whether there was corroboration of this evidence but that they could accept it “subject to your consideration of the dangers that I have advised you of”. Finally, the trial judge turned to the issue of use of criminal records. He told the jury that convictions relating to dishonesty “tend to bear more directly upon a witness’s credibility than do convictions for crimes not related to dishonesty”.

196After a thorough and even-handed review of the evidence and the applicable legal principles, the trial judge turned to the positions of the Crown and defence. In his review of the position of the defence he noted the various frailties in the evidence of Cadman and Glyzinskie. In particular, the trial judge referred to, “their innumerable lies; that they had reason to lie and make up their story for financial gain and withdrawal of various charges”. After dealing with the defence position concerning some of the identification evidence, the trial judge again returned to Cadman and Glyzinskie and said the following:

[The defence position is] that the evidence, I repeat, of Glyzinskie and Cadman, is to be rejected as a total fabrication, firstly because of the multiple stories and secondly because of their admission that they had lied on a number of occasions; that the current version of their evidence was obtained by serious inducements by the police together with pressure by the police and money…

197Trial counsel for the appellant did not object to the Vetrovec charge. On appeal, counsel for the appellant submits that the Vetrovec instruction was inadequate principally because it was focused on prior inconsistent statements. Counsel submits that this was not the real frailty in Cadman’s evidence; to the contrary, it was the position of the defence that Cadman’s earlier statements when he gave the appellant an alibi and denied that the appellant had anything to do with the killing were true. The real frailties in Cadman’s evidence arose from his serious criminal record, the pressure by the police, the various threats and inducements and his close connection with the murders through his admitted possession of the murder weapon.

198In my view, the directions to the jury concerning Cadman were generally sufficient. The purpose of the Vetrovec warning is to alert the jury that there is a special need for caution in approaching the evidence of certain witnesses whose evidence plays an important role in the proof of guilt. No particular wording is required for the warning. The warning should address the particular frailties in the evidence, especially those that may not be apparent to the lay triers of fact on the jury. The jury has not had the experience of the trial judge and without a proper instruction may not appreciate the reasons why certain aspects of the Vectrovec witness require special caution.

199In R. v. Sauvé and Trudel (2004), 182 C.C.C. (3d) 321 (application for leave to appeal to S.C.C. dismissed: [2004] S.C.C.A. No. 246) at para. 82, this court summarized the contents of a proper Vetrovec warning as follows:

(1) the evidence of certain witnesses is identified as requiring special scrutiny;

(2) the characteristics of the witness that bring his or her evidence into serious question are identified;

(3) the jury is cautioned that although it is entitled to act on the unconfirmed evidence of such a witness, it is dangerous to do so; and

(4) the jury is cautioned to look for other independent evidence which tends to confirm material parts of the evidence of the witness with respect to whom the warning has been given.

200The trial judge’s directions in this case sufficiently met these requirements, except in one respect concerning Cadman’s own involvement in the crimes, which I discuss below. Cadman and to a lesser extent Glyzinskie, were singled out for special treatment and as persons whose evidence required special treatment. The trial judge identified the characteristics in Cadman’s evidence that brought his testimony into serious question. He referred to various prior inconsistent statements, Cadman’s criminal record, the police raids on the house, the frequent visits by the police, pressure brought to bear on him by the police, the financial and other benefits he received and whether he had an incentive to lie. All of these matters were repeated when the trial judge reviewed the position of the defence. In light of this charge, the jury would have had no difficulty in identifying the concerns with Cadman’s evidence and not just that it was dangerous to act on that evidence, but why it was dangerous. It would have been obvious to the jury that Cadman had powerful motives to change his story.

201There was, in my view, only one deficiency in this aspect of the Vetrovec warning. The trial judge should have specifically identified the fact that Cadman’s admitted close association with the crime as an accessory after the fact put him in a position to falsely implicate the appellant and yet supply details about the crime that he allegedly obtained from the appellant. While the jury’s own experience might alert them to the dangers of acting on Cadman’s evidence because of matters such as the alleged threats and inducements from the police, they could have been assisted by judicial experience about the special concerns for persons like Cadman with a close association to the crime, who might themselves be suspected of committing the crime. This deficiency was, not, however, sufficiently serious to warrant setting aside the verdict. The possibility that Cadman was implicated in the shootings would have been apparent to the jury. As I have said, defence counsel did not object to this part of the charge and it is apparent that the real focus of the attack on Cadman was that he changed his story because of the threats and inducements from the police.

202I do not agree with the appellant’s position that the trial judge erred in focusing on the fact that Cadman had made prior inconsistent statements. This was the core of the defence position, that the prosecution was asking the jury to believe Cadman was now telling the truth and wanted the jury to accept that his earlier statements were untruthful. The other parts of the charge explained to the jury why they might not trust Cadman’s change in his story. The jury had an adequate understanding of the reasons for the need for special scrutiny of Cadman’s evidence.

203The charge fully met the other requirements of the Vetrovec warning. The trial judge gave the jury the strongest possible warning. He talked about the “extreme danger” in acting on the evidence of an admitted liar and that it was “extremely dangerous” for the jury to convict on Cadman’s uncorroborated evidence.

204Accordingly, I would not give effect to this ground of appeal.

IV. CONCLUSION

205I have found two legal errors made by the trial judge. He erred in admitting the similar fact evidence and erred in failing to give sufficient reasons with respect to the alleged s. 10(b) violation at the roadside. For the reasons given earlier, it is my view that the error respecting the admission of the similar fact evidence alone is sufficient to require a new trial. Further, when that error is taken with the s. 10(b) error, it is even clearer that this could not be a case for application of the proviso in s. 686(1)(b)(iii) of the Criminal Code. The appellant’s final statement to the police in which he admitted to having been at the Cadman residence was an important piece of evidence tending to support a part of Cadman’s evidence. If that statement should have been excluded, there was very little other independent evidence, aside from the gunshot residue results, to support Cadman’s evidence, except for that of Ms. Glysinskie and her evidence had its own frailties.

V. DISPOSITION

206Accordingly, I would allow the appeal, set aside the convictions and order a new trial.

Signed: “Marc Rosenberg J.A.”

“I agree S.T. Goudge J.A.”

“I agree S. Borins J.A.”

RELEASED: “MR” MARCH 3, 2005

Footnotes

Although the particular search in that case may or may not pass Charter scrutiny now.
An officer was in the execution of his duty for the purposes of s. 129 of the Code, for example, when serving a speeding ticket: R. v. Noel at para. 17.
House of Commons Debates, (20 December 1984) at 1390 (Hon. John Crosbie).
Because of the opening phrase “Subject to this or any other Act of Parliament” in both ss. 489.1 and 490.
Some federal legislation expressly provides that ss. 489.1 and 490 apply to seizures under that legislation. See Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 13.
See R v. Oickle at para. 46.
At para. 60 of Feeney, the court held that fingerprints [“the product of the search]” may be admissible under s. 24(2) if the arrest was unlawful “by reason of a technicality”.