Court of Appeal for Ontario
Judges: Strathy C.J.O., Weiler and Watt JJ.A.
Between
Her Majesty the Queen
Respondent
and
John Tsekouras
Appellant
Counsel:
Joseph S. Wilkinson, for the appellant
Stephen Dawson, for the Crown
Heard: September 6-7, 2016
On appeal from the conviction entered on March 5, 2015 by Justice John deP. Wright of the Superior Court of Justice, sitting without a jury, with reasons reported at 2015 ONSC 1470.
Introduction
1Project Dolphin was in its final few days. But some unfinished business remained. Searches. Seizures. Arrests. The dismantling of a drug trafficking enterprise.
2On takedown day investigators coordinated their activities. Searches, seizures and arrests were to take place simultaneously.
3For some time, police had suspected John Tsekouras was the person in charge of this organization. But their suspicions fell short of what was required to arrest Tsekouras. So investigators watched John Tsekouras. Very closely. What he did. Where he went. Whom he met. To whom he spoke.
4When John Tsekouras took some documents out of one vehicle and put them into another, investigators changed their minds. No more surveillance. It was time to make an arrest.
5John Tsekouras had his Blackberry in his hand. An officer approached Tsekouras. Gun drawn, but pointed downward. Tsekouras took the battery out of his Blackberry and threw the device when ordered to the ground by the officer.
6The reasons for the arrest are not entirely clear. Perhaps, it was for attempting to obstruct justice. Or maybe it was for possession of the proceeds of crime. What is clear is that John Tsekouras did not remain under arrest for long. A senior officer arrived and directed that Tsekouras be released immediately and unconditionally. And so John Tsekouras went on his way.
7Among the things taken from John Tsekouras incidental to his arrest were two Blackberry devices. Neither the one he had thrown down, nor the other one seized from his vehicle, were returned. Police told John Tsekouras that they wanted to search the Blackberry devices. And depending on what investigators found during their search, they told Tsekouras, the charge on which he had been arrested and released may be "revisited".
8A few months later, police did search the contents of the Blackberry Tsekouras had thrown to the ground. What they found became a critical part of the case against Tsekouras at his trial on several preliminary and substantive drug offences. And the authority relied upon to harvest the contents of the Blackberry became a central focus of the trial and the appeal to this court from convictions that were entered at trial.
9These reasons explain why I would dismiss John Tsekouras' appeal despite the investigative missteps made in the collection of this evidence adduced at trial.
The Background Facts
10The grounds of appeal advanced do not command protracted reference to the evidence adduced at trial. However, what is required is a review of the manner in which the evidentiary cornucopia located in the Blackberry was collected by investigators.
Project Dolphin
11Project Dolphin was a joint forces investigation into drug trafficking in Thunder Bay and elsewhere in Canada. The police services involved included the Royal Canadian Mounted Police ("RCMP"), the Ontario Provincial Police ("OPP"), and the Thunder Bay Police Service ("TBPS").
12The targets of Project Dolphin included John Tsekouras, Frank Muzzi and Salvatore Larizza. The drugs involved were marijuana and cocaine. In the course of the investigation, police also seized oxycodone. The RCMP was conducting a joint proceeds of crime investigation.
13The principal transactions with which the investigators were concerned were the planned purchase of two kilograms of cocaine by Tsekouras and Keith Ritchie from a person known as "Penguin" and 18 pounds of marijuana and one kilogram of cocaine left by Frank Muzzi in Salvatore Larizza's garage with Larizza's agreement.
The Case for the Crown
14The case for the Crown at trial included evidence of:
i. messages found on Tsekouras' Blackberry seized incident to his arrest and retained by police after his unconditional release without formal charge;
ii. the hearsay statement of Salvatore Larizza admitted under the principled exception to the hearsay rule after Larizza's death prior to trial; and
iii. the guilty plea and accompanying agreed statement of facts on which it was based in the prosecution of Frank Muzzi.
Takedown Day
15The investigative plan for takedown day for Project Dolphin included the execution of warranted searches, the seizures of controlled substances and related paraphernalia and the arrests of some of the participants in the drug trafficking enterprise.
16The investigative plan for takedown day for John Tsekouras consisted of surveillance of Tsekouras and his family contemporaneously with searches of several properties with which Tsekouras was associated. The simple fact was that police lacked reasonable grounds to arrest Tsekouras, although they suspected he was the head of the drug trafficking organization they were investigating.
The Arrest of John Tsekouras
17When surveillance officers saw John Tsekouras remove a box of papers from one parked vehicle and put it into another occupied by some of his family members, they decided to stop him.
18A police officer approached Tsekouras on foot, his gun drawn but pointed downward and at his side. Tsekouras had a Blackberry in his hand. As the officer approached, he told Tsekouras to get down on the ground. Tsekouras took the battery out of his Blackberry and threw it on the ground. As the officer took Tsekouras to the ground, Tsekouras threw his Blackberry on the ground.
19The officer arrested Tsekouras. Incidental to the arrest, officers seized the Blackberry on the ground; a second Blackberry from Tsekouras' vehicle; and two amounts of cash.
20A few moments later, one of the senior investigating officers arrived at the scene of Tsekouras' arrest. He directed that Tsekouras be released unconditionally. And this was done.
The Blackberry is Retained
21Despite Tsekouras' unconditional release, police kept the Blackberry seized incident to his arrest. They also kept the second Blackberry seized on the same basis from Tsekouras' vehicle.
22A police officer told Tsekouras that they (the police) would be keeping both Blackberrys to examine them. If they found any evidence during their examination, the officer told Tsekouras they (the police) would "revisit" the obstruct justice charge.
The Initial Examination of the Blackberry
23An officer of the TBPS attempted to examine Tsekouras' Blackberry. The device was locked and password protected. The officer lacked the capacity to examine the Blackberry.
24The Blackberry that was seized from Tsekouras' vehicle was not password protected. A review of the contents by TBPS revealed nothing relevant for the purposes of the investigation. No further mention need be made of this phone.
The Request for Further Examination
25The password protected Blackberry seized from Tsekouras was one of several electronic devices officers of TBPS had seized on takedown day. They wanted these devices examined, their data harvested and an analysis conducted. Since TBPS lacked the capacity to gain access to and analyze the data on the locked devices, these devices were sent to the RCMP laboratory to open the encryption and to recover the documents.
26The RCMP laboratory required completion of a form to accompany any device sent to their lab for examination and analysis. Among other things, the form required the submitting police agency to state the legal authority for the examination and analysis sought. Search warrants accompanied every device but one – the Blackberry of John Tsekouras.
27The authority relied upon to permit the examination and analysis of Tsekouras' Blackberry was a decision of a judge of the Superior Court of Justice. This authority – R. v. McTavish (8 December 2010), CR-09-00003591-00 (Ont. S.C.J.) – was said to permit examination and analysis of the contents of an electronic device seized as incident to an arrest. On the Charter application to exclude the evidence, it was agreed that this decision did not authorize the search.
28Over the next several months, the RCMP laboratory proceeded to decrypt the device and harvest its contents as requested by TBPS.
The Larizza Defection
29Salvatore Larizza was in a tight spot. Project Dolphin investigators had searched his garage. There, they found 18 pounds of marijuana and 1 kilogram of cocaine. He was charged with several drug offences, but released from custody. The conditions on which Larizza had been released included house arrest, a term that chafed on him.
30Larizza along with his counsel approached Project Dolphin investigators. Larizza had decided to cooperate with the investigators. About six months after takedown day, he provided a KGB statement that implicated Muzzi in delivery of the drugs found in his (Larizza's) garage. The delivery occurred the night before takedown day.
31As a result of Larizza's statement, Frank Muzzi was arrested on several charges arising out of the seizure made at Larizza's garage.
32The Crown consented to the variation Larizza requested in his release terms after the KGB statement had been completed.
The Data Return
33A month after Larizza's KGB statement, about seven months after takedown day, TBPS received the data the RCMP had harvested from Tsekouras' Blackberry. An officer, whose task it had been to prepare informations to obtain (ITOs) for the search warrants for Project Dolphin, discovered that no warrant had accompanied Tsekouras' Blackberry when it had been sent to the RCMP lab.
34Analysis of the data sent to TBPS was suspended until a search warrant could be obtained. The purpose of the warrant was to authorize a re-search of the Blackberry and a second harvest of its data. But this could not be done because of the effect of the first search on the Blackberry.
35TBPS continued their analysis of the original data from the Blackberry. Two months later, they completed their task.
The Reports to a Justice
36About one month after the initial seizure of Tsekouras' Blackberry, an officer from TBPS completed a Report to a Justice in Form 5.2 as required by s. 489.1 of the Criminal Code. In accordance with what was then the practice in Thunder Bay, the officer put the report in the Court Services mail slot to be sent to the offices of the justice of the peace for signature. About 90 days later, and periodically thereafter, the officer sent applications for further detention as required by s. 490(2) of the Criminal Code. He forwarded these applications in the same manner by leaving them in the Court Services mail slot for delivery to a justice of the peace.
37The officer who completed the applications for further detention under s. 490(2) was unaware of the notice requirement in the section. No notice was given to John Tsekouras on any of the three occasions on which the extensions were sought. The officer was also unaware that a search warrant had been issued later for Tsekouras' Blackberry.
38About 18 months later, investigators found out that 49 Reports to a Justice required for Project Dolphin searches never reached a justice of the peace. These reports were never signed.
The Arrest of John Tsekouras (Second Arrest)
39About ten months after takedown day, police arrested John Tsekouras on several drug charges arising out of the Project Dolphin investigation.
Frank Muzzi Pleads Guilty
40Almost 18 months after takedown day, Frank Muzzi pleaded to four counts on an indictment including conspiracy to traffic in cocaine and in marijuana. One of the counts was in connection with the drugs he had left in Larizza's garage the night before the takedown.
41The basis upon which Muzzi entered his guilty pleas included:
i. an agreed statement of facts; and
ii. a portion of Larizza's KGB statement that Muzzi acknowledged was correct.
42Frank Muzzi received an agreed-upon sentence. Charges against his mother and sister were withdrawn. The Crown agreed Frank Muzzi would not be called as a witness for the Crown at any co-conspirators' trial.
The Trial Proceedings
43At John Tsekouras' trial, the Crown proposed to tender evidence of the results of the search of Tsekouras' Blackberry, of Larizza's KGB statement; and of Muzzi's guilty plea and the statement of facts on which the guilty plea and conviction were based. Each attracted objection from trial counsel (who is also counsel on appeal) and was the subject of a pre-trial admissibility ruling.
44The trial judge made several rulings as each pre-trial application concluded.
45He rejected the trial Crown's contention that Tsekouras had no reasonable expectation of privacy in the contents of the Blackberry because he had thrown it down, thus discarding it, immediately before or on arrest.
46The trial judge found the warrantless search of Tsekouras' Blackberry infringed s. 8 of the Charter, but admitted the evidence obtained in the search under s. 24(2). He also admitted Larizza's KGB statement and Muzzi's guilty plea and its factual underpinnings under the principled exception to the hearsay rule.
47John Tsekouras did not testify or call any defence evidence in response to the case for the Crown.
The Grounds of Appeal
48John Tsekouras ("the appellant") advances five grounds of appeal. Four relate to evidentiary rulings made by the trial judge. The fifth challenges the reasonableness of some of the convictions.
49The appellant says that the trial judge erred in admitting as evidence:
i. the contents extracted from the appellant's Blackberry seized and examined without warrant;
ii. the hearsay statement of Sal Larizza;
iii. the statement of fact filed and relied upon in the guilty plea proceedings of Frank Muzzi; and
iv. the hearsay statements of Larizza and Muzzi under the co-conspirators' exception to the hearsay rule.
50The appellant also argues that the convictions entered on four counts of preliminary and substantive crimes relating to cocaine are unreasonable.
Ground #1: The Admissibility of the Blackberry Evidence
51For all practical purposes, this ground of appeal reduces to a claim that the trial judge, having correctly found breaches of s. 8 of the Charter in the warrantless search and wrongful detention of the appellant's Blackberry, erred in failing to exclude the contents recovered from the Blackberry under s. 24(2).
52The circumstances in which the appellant's Blackberry was seized, detained and its contents harvested have already been canvassed. No useful purpose would be served by a further recital of them. However, to provide some background for the arguments advanced, it is worthwhile to record the essential features of the trial judge's s. 24(2) analysis before turning to the attacks marshalled against them.
The Ruling of the Trial Judge
53The trial judge's analysis under s. 24(2) was premised on three discrete, but related breaches of s. 8 of the Charter:
i. the warrantless search of the Blackberry;
ii. the unauthorized seizure of the contents of the Blackberry; and
iii. the unlawful detention of the Blackberry in breach of ss. 489.1 and 490 of the Criminal Code.
54In his admissibility analysis under s. 24(2), the trial judge considered the three lines of inquiry mandated by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. He characterized the first line of inquiry – the seriousness of the breach – as a potential "tiebreaker in what is essentially a contest between [the second and third lines of inquiry]".
55In his assessment of the seriousness of the Charter infringement, the trial judge found that investigators did not ignore the necessity for warrants in this major crime investigation. They made a mistake, however, in connection with the appellant's Blackberry and, on realizing their mistake, immediately sought and obtained a warrant. Similarly, the failure to obtain orders under ss. 489.1 and 490 was not the fault of Project Dolphin investigators, rather it was "ultimately the fault of another branch of the justice system". The failure to obtain the orders arose from carelessness, not bad faith or recklessness.
56The trial judge acknowledged that the impact of the breach on the Charter-protected interests of the appellant was significant in light of the enhanced privacy interest associated with such devices. That said, the trial judge concluded that the impact of the breach on the Charter-protected interests of the appellant was mitigated by several factors:
i. the uncertain state of the law about the need for a warrant to search cellphones at the time the search was conducted;
ii. the fact that the appellant was advised when released unconditionally that his phone might be searched but took no steps to retrieve it;
iii. the fact that a warrant was subsequently obtained, which indicated not only that it would have been granted had it been sought earlier, but also that it belied any deliberate, reckless or negligent conduct on behalf of anyone to violate the Charter; and
iv. the fact that the officer who sent the Blackberry to the RCMP to extract the data made reasonable inquiries about search authority and was provided with a response that was wrong through carelessness rather than unacceptable negligence or recklessness.
57The trial judge concluded that the third line of inquiry under Grant favoured admission of the evidence which consisted of the actual messages sent and received on the appellant's Blackberry. This was real evidence of a high degree of reliability, which was crucial to the case for the Crown.
58In the final analysis, the trial judge was satisfied that the Grant lines of inquiry favoured admissibility of the messages recovered from the appellant's Blackberry.
The Arguments on Appeal
59The appellant takes no issue with the findings of constitutional infringement made by the trial judge. A warrantless search of the Blackberry and seizure of its data and the unlawful detention of the Blackberry, which amounted to a further breach of s. 8. But, the appellant says, the trial judge erred in his section 24(2) analysis. Properly conducted, that analysis would have resulted in exclusion of the Blackberry evidence, the result which should follow here.
60The appellant says that the trial judge erred in his overall approach to s. 24(2). The first line of inquiry cannot be fairly described as a "tiebreaker", the role assigned to it by the trial judge, between the second and third lines of inquiry. The first two lines of inquiry favour exclusion; the third, admission of the evidence. But all are of equal importance and are to be balanced together. What is more, the trial judge failed to properly characterize the seriousness of the Charter violation and considered factors relevant to the seriousness of the Charter-infringing state conduct when assessing the impact of the breach on the Charter-protected interests of the appellant.
61The appellant also alleges the trial judge made several specific errors in his s. 24(2) analysis. He erred in characterizing the Blackberry evidence as "crucial" for the Crown's case. The Crown had available to it viva voce evidence from two co-conspirators, one awaiting trial in separate proceedings (Ritchie) and another (Muzzi) already convicted and sentenced on the basis of a joint submission. In addition, the trial judge was wrong in minimizing the seriousness of the Charter breach on the basis that the law on cellphone searches was in a state of flux at the time the Blackberry was searched. Investigators knew that a search warrant was required. A warrant accompanied every device except the appellant's Blackberry. Their reliance on R. v. McTavish was unreasonable and reflected bad faith in the face of obvious knowledge of the need for a warrant. The trial judge committed a further error in finding comfort from the fact that there were grounds to get a warrant. The existence of grounds – while relevant to the seriousness of the state conduct – does not affect the significance of the invasion of the appellant's privacy rights.
62In connection with the reporting requirements of s. 489.1 and those of s. 490 concerning retention of seized items, the appellant says that the trial judge made further errors:
i. in finding good faith in attempted compliance with ss. 489.1 and 490 by simply leaving the Reports to a Justice in a Court Services mail slot and failing to follow up about receipt;
ii. in failing to find that non-compliance with the notice requirements of s. 490(2) was based on plain ignorance of the statutory requirements, or at best, unacceptable negligence; and
iii. in reversing the burden imposed by s. 490(2) by considering as mitigation of the failure to give notice, the appellant's failure to seek the return of his Blackberry.
63According to the appellant, a proper application of the lines of inquiry mandated by Grant would yield a result contrary to the ruling admitting the evidence made at trial.
64The violations were serious. The arrest was arbitrary, thus could not ground a lawful seizure of the Blackberry incident to arrest, much less a subsequent search, intentionally done without a warrant. The search could not comply with the requirements set out by the Supreme Court of Canada for searches of cell phones incident to arrest in R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621.
65The appellant says the unconstitutional conduct of the authorities had a significant impact on his Charter-protected interests. He had a high expectation of privacy in the information contained in the Blackberry, an interest that continued without proper judicial supervision for a period of 10 months. This detention was the result of serious systemic failures on the part of TBPS investigators, failures that were not mitigated by the belated attempt to regularize unconstitutional conduct by the subsequent issue of a search warrant.
66Exclusion of this evidence, the appellant continues, requires that acquittals be substituted for the convictions entered at trial. Without the evidence provided by search of the Blackberry, the convictions would be unreasonable. To order a new trial would permit the Crown to reverse a tactical decision it made at the first trial and to attempt to establish guilt on an evidentiary basis available but not pursued at first instance. The prevailing jurisprudence does not permit the Crown to do so.
67The respondent does not take issue with the findings of constitutional infringement made by the trial judge, but resists any suggestion of legal error or palpable or overriding errors of fact in the trial judge's s. 24(2) analysis, or in his conclusion to admit the evidence harvested from the appellant's Blackberry.
68At the outset, the respondent reminds us that we must begin from a stance of deference to the findings of fact made by the trial judge, absent palpable and overriding error in connection with those findings. We should approach the appellant's complaints with caution because, in the main, they are grounded on a set of facts that the appellant wishes the trial judge had found, rather than those that he did find.
69The respondent says that the trial judge did not treat any single factor or line of inquiry under Grant as a first among equals or as dispositive of the issue of admissibility. What is more, no overarching rule mandates how to balance the lines of inquiry or Grant factors. The trial judge's reference to the absence of an automatic rule of exclusion upon proof of constitutional infringement reflects existing jurisprudence and does not constitute error. His misplace of the seriousness of police misconduct when considering the impact of that misconduct on the Charter-protected interests of the appellant is at best a venial error that would not affect the ultimate conclusion.
70According to the respondent, the trial judge's characterization of the law relating to the search of cellphones as uncertain was accurate. At the time of trial, neither this court nor the Supreme Court of Canada had issued any definitive pronouncement describing the legal authority required to search a cellphone or similar electronic device. It follows, the respondent continues, that the failure to obtain a warrant could properly be attributed to legal uncertainty, rather than an intentional, reckless or negligent disregard for the appellant's Charter rights.
71The respondent submits that the existence of grounds to obtain a search warrant, as demonstrated by the warrant subsequently issued, was properly considered a factor that mitigated the seriousness of the police conduct in this case.
72As for the breaches of ss. 489.1 and 490, the respondent takes issue with the appellant's submission that the trial judge imposed an obligation on the appellant to apply for the return of his Blackberry. Fairly read, the reasons of the trial judge do not support the appellant's claim. Rather, his reference to the appellant not seeking the return of his Blackberry was just one factor in the totality of the circumstances that the trial judge considered. The trial judge properly characterized the nature of the breach and its impact on the admissibility determination.
73The respondent contends that the trial judge properly described the evidence from the Blackberry as "crucial" to the case for the Crown. It was not rendered less crucial because of the existence of compellable co-conspirators. The problems associated with calling such witnesses are notorious.
74In the end, the respondent says, the trial judge got it right. This evidence was properly admitted at trial.
The Governing Principles
75Section 24(2) of the Charter is an admissibility rule. It determines whether evidence obtained in a constitutionally impermissible manner will make its way into a criminal trial for the use of the trier of fact or be denied entry. The section not only recognizes that the admission of constitutionally tainted evidence and its use to demonstrate guilt may bring the administration of justice into disrepute, but also that exclusion of the evidence can equally bring the administration of justice into disrepute: R. v. McGuffie, 2016 ONCA 365, 336 C.C.C. (3d) 486, at para. 60.
76We determine the admissibility of constitutionally tainted evidence under s. 24(2) by considering all the circumstances and pursuing three lines of inquiry. We examine:
the seriousness of the Charter-infringing state conduct;
the impact of the breach on the Charter-protected interests of the accused; and
society's interest in an adjudication on the merits.
See, Grant, at paras. 71-86.
77In this case, the parties occupy common ground about the fact of constitutional infringement and that evidence harvested from the appellant's Blackberry was obtained in a constitutionally impermissible manner. But they part company on the seriousness of the Charter-infringing state conduct; the impact of that conduct on the appellant's Charter-protected interests; and on the result that should follow from the pursuit of those lines of inquiry in this case.
78The three lines of inquiry to be followed under Grant entail not only findings of fact, but also the weighing of various interests frequently at odds with one another: McGuffie, at para. 64. The trial judge's role in the s. 24(2) application made at trial was to balance the assessments under each of the three Grant lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute: Grant, at para. 71.
79The trial judge found two infringements of s. 8 of the Charter, one of which yielded evidence that the Crown tendered for admission at trial. The infringements were:
i. the non-warranted search of the appellant's Blackberry and harvesting of its contents for use as evidence; and
ii. the detention of the Blackberry without the supervision required under s. 489.1 and notice to the appellant under s. 490(2).
80Before turning to the principles that govern the Grant lines of inquiry and the standard of review that we are to apply when invited to scrutinize a trial judge's application of them, it is worthwhile to begin with a brief examination of the authority to conduct a search of a Blackberry or similar electronic device and the obligations of seizing authorities to ensure post-seizure supervision of detained items.
The Authority to Search the Blackberry
81I discuss first, the authority to search a Blackberry or similar device seized incident to arrest.
82The appellant's initial arrest and the seizure of his Blackberry incident to arrest took place in 2011. The subsequent extraction of its data took place in 2011 and 2012. The trial judge's s. 24(2) ruling was released on October 20, 2014, nearly two months before the Supreme Court of Canada released its decision in Fearon about the availability of the power to search incident to arrest as an authority to permit the search of cellphones and similar devices taken from a suspect.
83Several points of significance to the trial judge's determination of the seriousness of the Charter-infringing state conduct and its impact on the appellant's Charter-protected interests emerge from the decision in Fearon.
84First, the Fearon court pointed out that in 2014 Canadian courts had not provided a consistent response to the question of whether the power of search incident to arrest permitted the search of cellphones and similar devices found on the suspect. At least four approaches had emerged: Fearon, at para. 2. If the law lacked consistency in 2014, it is a reasonable inference that it was equally unsettled, if not more so, in 2011.
85Second, a cellphone may be searched incident to arrest, provided what is searched and how the search is conducted are strictly incidental to the arrest and the police keep detailed notes of what has been searched and why: Fearon, at para. 4.
86Third, the power to search incident to arrest is a focused power assigned to police so that they can pursue their investigations promptly upon arrest. But the authority is not without its limits. The search must be truly incidental to the arrest, that is to say, exercised in the pursuit of a valid purpose related to the proper administration of justice: Fearon, at paras. 16 and 21.
87Fourth, a search is properly incidental to arrest when the police attempt to achieve some valid purpose connected to the arrest, such as protecting evidence from destruction by the arrested person or others, or discovering evidence. If the purpose of the search is the discovery of evidence, there must be some reasonable prospect of finding evidence of the offence for which the accused is being arrested: Fearon, at para. 22; R. v. Caslake, [1998] 1 S.C.R. 51, at paras. 19-25. What matters is that there be a link between the location and purpose of the search and the grounds for the arrest: Fearon, at para. 25; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 49.
88The Fearon court recognized that some modification of the common law search incident to arrest power was necessary when the object to be searched was a cellphone or similar device. After all, searches of these devices have the potential to be a much more significant invasion of privacy than the typical search incident to arrest of pockets, purses, briefcases and motor vehicles: Fearon, at para. 58. Something more than the requirements of a lawful arrest and a search that is at once truly incidental to the arrest and reasonably conducted is essential to further protect a suspect against the risk of wholesale invasion of privacy: Fearon, at para. 58.
89The Fearon court made it clear that nothing short of strict adherence to the requirement that a search incident to arrest be truly incidental to the arrest would be tolerated where the object to be searched was a cellphone or similar device. The searches must be done promptly to effectively serve their purpose, such as the discovery of evidence: Fearon, at para. 75. To give effect to this approach, the court modified the general rules applicable to searches incident to arrest in three ways.
90First, the scope of the search. The scope of the search of a cellphone or similar device incident to arrest must be tailored to the purpose for which it may lawfully be conducted. Not only the nature, but also the extent of the search performed on the cellphone or similar device must be truly incidental to the particular arrest for the particular offence. And so it is, at least as a general rule, that only recently sent or drafted emails, texts, photos and the call log may be examined. The reason is simple: only those sorts of items will have the necessary degree of connectedness to the purposes for which prompt examination of the device is authorized: Fearon, at para. 76. Investigators must be able to explain, within the limited purposes of search incident to arrest or with reference to some other valid purpose, what they searched and why they did so: Caslake, at para. 25.
91From this modification of the general rule relating to searches incident to arrest, it necessarily follows that this search authority is not a blank cheque for investigators to forage in the device unbounded. For example, to search or download its entire contents: Fearon, at para. 78.
92Second, searches to discover evidence. Cellphone searches incident to arrest are not routinely permitted simply for the purpose of discovering additional evidence. A cellphone or similar device search incident to arrest for the purpose of discovering evidence is only a valid law enforcement objective when the investigation will be stymied or significantly hampered without the ability to search the device incident to arrest. Investigators must be able to explain why it was not practical, in all the circumstances of the investigation, to postpone the search until they could obtain a warrant: Fearon, at para. 80.
93Third, a record of the search. Officers executing the search must make detailed notes of what they have examined on the device and how it was searched. The applications searched, the extent and time of the search. Its purpose and duration. See, Fearon, at para. 82.
94From Fearon we also learn that police are not entitled to navigate through unsettled areas of the law by following the least burdensome route. As a general rule, faced with genuine uncertainty, police should err on the side of caution by settling on a course of action that is more, rather than less respectful of the accused's privacy rights: Fearon, at para. 94.
Post-Seizure Supervision
95Section 489.1(1) applies to seizures made by peace officers as a result of searches incident to arrest: R. v. Backhouse (2005), 194 C.C.C. (3d) 1 (Ont. C.A.), at paras. 112-113. Where the thing seized is not being returned to the person lawfully entitled to possess it, s. 489.1(1)(b)(ii) requires the seizing officer, as soon as it is practicable to do so, to report to a justice that she or he has seized something and is detaining it to be dealt with by the justice under s. 490(1).
96The Report to a Justice must be in a statutory form – Form 5.2. This form must describe the authority under which the seizure was made; the thing that was seized; and where, how or where applicable by whom it is being detained. The officer who files the report must date and sign it.
97The reporting requirement of s. 489.1(1)(b)(ii) provides a link to s. 490(1) and ensures long-term post-seizure supervision of the things seized by a judicial officer: R. v. Garcia-Machado, 2015 ONCA 569, 327 C.C.C. (3d) 215, at paras. 15-16; Backhouse, at para. 112.
98Failure to file a Report to a Justice in Form 5.2 means that no post-seizure supervision of the thing seized will take place: Garcia-Machado, at para. 16. But failure to file a Report to a Justice as soon as practicable after a thing has been seized also has a constitutional dimension: the continued detention constitutes a breach of s. 8 of the Charter: Garcia-Machado, at paras. 44-48.
99Neither section 489.1 nor Form 5.2 has anything to say about how the report is to be provided to a justice. The Report requires the signature of the peace officer who submits it, but does not require or provide space for a justice to sign the report to acknowledge its receipt, endorse a disposition or advise the submitting officer of either event.
100Section 490 governs extended detention of seized items. Section 490(2) requires notice to the person from whom a thing has been seized if the thing has been detained more than three months from the date of seizure. Neither the section nor any other Code provision prescribes a form for the notice, although s. 490(2)(a) describes the procedure as a "summary application". But one thing is clear: while the provision provides the opportunity, no obligation is imposed upon the person from whom the thing was seized to take any steps for its recovery.
101In Garcia-Machado, this court left for another day whether any breach of s. 490, even one that had no real impact on the judicial oversight contemplated by the provision, would amount to a breach of s. 8 of the Charter: Garcia-Machado, at para. 55.
The Grant Lines of Inquiry
102Section 24(2) of the Charter requires that the admissibility of constitutionally-tainted evidence be determined on the basis of all the circumstances. The test, broad and imprecise (Grant, at para. 60), requires a trial judge to assess and balance the effect of admitting the evidence on societal confidence in the justice system. The focus of s. 24(2) is long-term, prospective and societal: Grant, at paras. 67-71.
103The admissibility determination under s. 24(2) involves a balancing of assessments under each of the three lines of inquiry:
i. the seriousness of the Charter-infringing state conduct;
ii. the impact of the breach on the Charter-protected interests of the accused; and
iii. society's interest in the adjudication of the case on its merits.
See, Grant, at para. 71.
104The first two inquiries operate in tandem. Both pull toward exclusion of constitutionally-tainted evidence. When the state's Charter-infringing conduct becomes more serious and the impact of it on the Charter-protected interests of the accused becomes greater, the synergistic effect of their combination strengthens the pull for and towards exclusion: McGuffie, at para. 62.
105The third line of inquiry – society's interest in the adjudication of the merits – is contraindicative – pulls towards the inclusion or admission of the evidence. This is a pull that reaches its zenith when the evidence tendered for admission is at once reliable and crucial to the case for the Crown: McGuffie, at para. 62. See also, R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.
106These lines of inquiry under Grant involve fact-finding and the assignment of weight to various interests often at odds with each other. There is no overarching principle that mandates how this balance is to be achieved: Grant, at para. 86; R. v. Patterson, 2017 SCC 15, at para. 54; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 48; R. v. Manchulenko, 2013 ONCA 543, 301 C.C.C. (3d) 182, at paras. 89-93.
107A trial judge's decision to admit or exclude evidence obtained in a constitutionally flawed manner is entitled to deference on appeal, absent an error in principle, a palpable and overriding error of fact or a determination that is unreasonable: McGuffie, at para. 64; Grant, at paras. 86, 127; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 82.
108The first line of inquiry under Grant requires a trial judge to evaluate the seriousness of the Charter-infringing state conduct. This conduct will vary in its seriousness, from inadvertent or minor, on the one hand, to wilful or reckless, on the other. The same may be said about the effect of admitting the evidence on the repute of the administration of justice: Grant, at para. 74.
109Various factors may attenuate or exacerbate the seriousness of the Charter-infringing state conduct. Extenuating factors, such as the need to prevent the disappearance of evidence, or good faith on the part of investigators, may attenuate the seriousness of police conduct that results in a Charter breach. On the other hand, no rewards are given for ignorance of Charter standards. Negligence or wilful blindness is not the equivalent of good faith: Grant, at para. 75. Nor can good faith be based on an unreasonable error or ignorance about the officer's scope of authority: R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 55. The more deliberate the conduct of the police in breach of the Charter, the more likely this line of inquiry will favour exclusion: Grant, at para. 75.
110The second line of inquiry requires an examination of the extent to which the Charter breach actually interfered with or undermined the interests protected by the right infringed. Again here there is a spectrum: fleeting and technical to profoundly intrusive. The more serious the impact, the greater the risk that admission of the evidence will bring the administration of justice into disrepute by signalling to the public that the high-sounding nature of the rights is belied by their feeble evidentiary impact in proceedings against the person whose rights have been trampled: Grant, at para. 76.
111To determine the seriousness of the infringement under this line of inquiry, a court must look to the interests engaged by the right infringed and examine the extent to which the violation actually impacted on those interests: Grant, at para. 77. An unreasonable search that intrudes upon an area in which an individual reasonably enjoys a high expectation of privacy or that demeans a person's dignity is more seriousness than one that does not: Grant, at para. 78.
112In assessing the actual impact of a breach on a Charter-protected interest of an accused, discoverability retains a useful role. The more likely that the evidence would have been obtained without the Charter-infringing state conduct, the lesser may be the impact of that Charter-infringing conduct on the underlying interests protected by the Charter right. The converse is also true: Grant, at para. 122. See also, Cole, at paras. 93 and 97. Of course discoverability is a double edged sword. It may signal that the breach of the accused's right was less serious. But it also renders the state conduct more egregious as the evidence was "discoverable" without breaching the accused's Charter rights: R. v. Bains, 2014 BCCA 43, 306 C.C.C. (3d) 222, at para. 51; Côté, 2011 SCC 46, [2011] S.C.R. 215, at paras. 70-72.
113A final point concerns the evidentiary underpinnings for circumstances said to mitigate the seriousness of the Charter-infringing state conduct or its impact on the Charter-protected interests of the accused. These factual findings of mitigation must be soundly grounded in the evidence, not based on speculation: R. v. Pino, 2016 ONCA 389, 337 C.C.C. (3d) 402, at paras. 95-98.
The Principles Applied
114As I will explain, I would not give effect to this ground of appeal. In my view, the trial judge did not err in his overall approach to the admissibility issue under s. 24(2) or in connection with the specific flaws identified by the appellant.
115At the outset, it is essential to keep in mind that the admissibility inquiry in which the trial judge engaged under s. 24(2) of the Charter includes not only findings of fact, but also the weighing of various interests frequently at odds with one another. These findings of fact, assessments of competing interests and characterizations of the nature and extent of any breach are entitled to deference absent palpable and overriding errors of fact, errors of law or principle or plainly unreasonable conclusions.
116Second, while it was necessary for the trial judge to consider the three lines of inquiry demanded by Grant, no overarching principle dictates the manner or order in which these lines of inquiry are to be considered. Further, the trial judge's ultimate assessment need not be mathematically precise. The overarching principle is that the trial judge must take into account all the circumstances. This trial judge did that.
117Third, I do not read the trial judge's observation about the first line of inquiry being a "tie breaker" as reflecting error in assigning that line of inquiry a place of superordinance in the Grant analysis. Read in its appropriate context, the trial judge was simply pointing out that when one factor favours exclusion (line of inquiry #2) and another admission (line of inquiry #3), the outcome of the remaining line of inquiry is apt (although not in every circumstance) to dictate the ultimate result of an analysis of an issue that is to be decided on a basis of probabilities.
118Fourth, the trial judge did not err in considering the uncertain state of the law as a relevant factor in his s. 24(2) analysis. Recall that in 2014 the Supreme Court of Canada described the inconsistencies among Canadian courts about whether a search of a cellphone was permitted as part of a search incident to arrest, or whether some further authority, like a search warrant, was required. In such a state of uncertainty, it scarcely follows that it was unreasonable or indicative of bad faith for investigators to rely on a judicial precedent said to support such a search.
119Further, it was not error for the trial judge to conclude from the fact that a search warrant was later obtained that had one been sought immediately after seizure of the Blackberry, it would likely have been granted, the contents harvested and evidence obtained. Discoverability has a place in the Grant analysis. That the evidence was discovered without a warrant was not the product of deliberate Charter-infringing state conduct.
120The trial judge also found an infringement of s. 8 of the Charter because police had failed to file any Report to a Justice in Form 5.2 and failed to notify the appellant of their summary application under s. 490.
121In this case, unlike in Garcia-Machado, the police did complete on several occasions a Report to a Justice. In accordance with what was then the practice, they left the reports for delivery to a justice of the peace. Delivery never happened, but not for dint of effort. This case is different from Garcia-Machado, which was not available for the trial judge to consider.
Ground #2: The Hearsay Statement of Salvatore Larizza
122The second ground of appeal challenges the decision of the trial judge to admit as evidence a sworn videotaped statement of Sal Larizza, a former accused who had been separately charged but died before trial.
123A brief description of the background, the circumstances under which the statement came to be taken and the ruling of the trial judge for admitting it as evidence will serve as a useful framework for the discussion that follows.
The Essential Background
124On takedown day, police executed a search warrant at Sal Larizza's home. In a box in his garage, officers found 1 kilogram of cocaine and 18 pounds of marijuana. Police suspected, but could not prove, that the drugs had been stashed there by Muzzi and Ritchie. Larizza was arrested. Neither Muzzi nor Ritchie were charged.
125Sal Larizza remained in custody for about a week after his arrest until he was released on bail. The terms of his release required him to live at his sister's home where he was to occupy a single room together with his young daughter. He was also subject to house arrest.
126A few days after his arrest, Sal Larizza was interviewed by police. The interview was audio and videotaped. Larizza denied knowing about how the drugs came to be found in his garage at home. He said that his home was not a stash house. He claimed not to know Muzzi well.
127There was no formal motion to admit Larizza's post-arrest statement on the voir dire to determine the admissibility of his later KGB statement. In the interests of trial fairness, the trial judge admitted the earlier statement. It was relevant to both threshold and ultimate reliability.
The KGB Statement
128About three months after his arrest, Sal Larizza asked the Crown to consent to variations in his judicial interim release order. Larizza wanted a deletion of the house arrest term and a change in the residence condition. Discussions took place between Larizza, his lawyer and the lead investigator about Larizza providing a statement explaining how the marijuana and cocaine got into his garage where they were found on takedown day.
129Sal Larizza agreed to provide a statement to police.
130Larizza's statement was audio and video recorded. It was given under oath. Larizza was warned about the consequences of making a false statement. He was told that the statement would be disclosed to those facing trial. The statement lasted 1 hour and 20 minutes.
131In his KGB statement, Sal Larizza admitted that he had provided a stash house for Muzzi and another man. Both had a key to his (Larizza's) house and could come and go as they pleased. Muzzi and another man showed up in Muzzi's truck the evening before takedown day. They asked whether they could store some marijuana in Larizza's garage overnight. Muzzi promised he would remove the marijuana early the next morning.
132Sal Larizza denied knowledge of any cocaine being part of the delivery the night prior to takedown day. Police noticed indicia of a cocaine-cutting operation in Larizza's home.
The Death of Sal Larizza
133Sal Larizza died prior to trial. Somebody killed him in his own home.
The Ruling of the Trial Judge
134The case for admissibility of Larizza's KGB statement was advanced under the principled exception to the hearsay rule.
135Necessity was uncontroversial. Larizza was dead.
136The trial judge considered the cumulative effect of several factors in concluding that threshold reliability had been established:
i. the statement was audio and video recorded;
ii. the statement was under oath;
iii. Larizza was warned about the consequences of providing false information;
iv. the events described in the statement were within Larizza's direct knowledge;
v. the narrative provided was in Larizza's own words, not in response to leading or suggestive questioning;
vi. the initiative for the statement originated with Larizza, not the police or the Crown;
vii. Larizza had legal advice before making the statement;
viii. the statement was confirmed by real evidence in some of its material aspects;
ix. the statement was strikingly similar in content to what Muzzi admitted to be his involvement when he pleaded guilty to various charges;
x. Larizza repeated crucial information a number of times; and
xi. What Larizza appeared to regard as his interest in co-operating with the authorities.
137The trial judge also considered Larizza's previous statement to the police as a prior inconsistent statement.
138The trial judge admitted Larizza's KGB statement. It does not appear that he was asked to exclude it on the basis that its prejudicial effect exceeded its probative value.[1]
The Arguments on Appeal
139The appellant contests the trial judge's admissibility ruling on two grounds. He says that the trial judge did not provide adequate reasons for his decision, thus rendering it impervious to appellate review. He also argues that what the trial judge did say reveals that he considered irrelevant factors and failed to consider relevant factors in concluding that the requirement of threshold reliability had been met.
140On the inadequacy of reasons, the appellant says that the trial judge devoted the majority of his reasons to a rote repetition of the governing legal principles, but offered no real insight into why he found threshold reliability established and the statement admissible. The most important consideration here was the inability of the appellant to cross-examine the declarant. Yet the trial judge failed to consider whether or how the circumstances in which the statement was made could and did function as an adequate substitute or proxy for the inability to cross-examine.
141The appellant submits that in reaching his conclusion on reliability, the trial judge failed to consider that Larizza's motive in providing the statement was to obtain a significant bail variation and that the KGB statement was fundamentally at odds with his post-arrest statement – given five months earlier – in which he claimed no knowledge of events he described in much detail later.
142In addition to his failure to consider relevant factors, the appellant continues, the trial judge assigned a place in his analysis to factors of which no account should have been taken. That Larizza took the initiative, consulted a lawyer and repeated crucial information several times. And that the statement was strikingly similar to what Muzzi admitted on his guilty plea. The trial judge also failed to recognize the double hearsay aspect of the statement when Larizza repeated what he claimed Muzzi said when he (Muzzi) had asked to store the drugs in Larizza's garage.
143The respondent supports the admissibility ruling of the trial judge. The trial judge's reasons are adequate to permit meaningful appellate review. They reveal no consideration of irrelevant factors or failure to consider relevant factors. The case for admissibility was overwhelming.
144The respondent reminds us that in considering this alleged error, we are to begin from a stance of deference, absent an error in principle or in law, a palpable and overriding error of fact or a plainly unreasonable conclusion. Deference should not be shunted aside here.
145The respondent says that the trial judge's ruling reflects governing principles. Inability to cross-examine a hearsay declarant is not dispositive of an application to admit a hearsay statement. This inability may be overcome by circumstantial guarantees of trustworthiness arising out of the circumstances in which the statement came about. In this case, the trial judge took into account relevant factors, including that essential parts of Larizza's narrative were confirmed by other evidence, such as Muzzi's guilty plea. He did not consider irrelevant factors, at least none that marred the essential features of his analysis that provided an appropriate foundation for meaningful appellate review.
The Governing Principles
146At the outset, factual findings that underpin a finding of admissibility are entitled to deference absent palpable and overriding error: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 31; R. v. Chretien, 2014 ONCA 403, 309 C.C.C. (3d) 418, at para. 44.
147The central underlying concern with the admission of hearsay evidence is the inability of the party opposite to cross-examine the declarant on the truth and accuracy of the reported statement, to test his or her perception, memory, narration and sincerity: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 18-19; Khelawon, at para. 2.
148When hearsay evidence is tendered for admission under the principled exception to the hearsay rule and no issue arises about the necessity requirement because of the death of the declarant, the task of the trial judge is to determine whether the reliability requirement has been met. Reliability, the current equivalent of Wigmore's "circumstantial guarantee of trustworthiness" or "probability of trustworthiness", operates as a substitute or surrogate for the more traditional mechanism for testing reliability – cross-examination. Reliability intervenes to ensure that only hearsay statements worthy of consideration by a trier of fact get before it.
149It is well established that the reliability requirement under the principled exception to the hearsay rule refers to threshold, not ultimate reliability. After all, the ultimate reliability of any piece of evidence received in a criminal trial is for the trier of fact to determine in the context of all the evidence adduced at trial: Khelawon, at paras. 2-3, 50; Youvarajah, at para. 23.
150Since the underlying concern when hearsay evidence is proposed for admission is the opponent's ability to test it by traditional means, the reliability requirement under the principled approach seeks to identify those cases in which this difficulty is sufficiently expunged to justify receiving the evidence by exception to the general exclusionary rule: Khelawon, at para. 61.
151A proponent who seeks the reception of hearsay evidence under the principled exception usually tries to satisfy the reliability requirement in either of two ways. One way is to show that no real concern exists about the truth of the statement because of the circumstances in which the statement came about. Another way of satisfying the reliability requirement is to demonstrate that no real concern arises from the introduction of the statement in hearsay form because, in the circumstances, the opponent can sufficiently test its truth and accuracy: Khelawon, at paras. 62-63. See also, R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 35.
152These two methods of satisfying the reliability requirement are not mutually exclusive: Khelawon, at para. 65; Blackman, at para. 65; R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283, at paras. 22-23. That said, where the declarant is not available for cross-examination, the focus of the reliability inquiry will necessarily be on the circumstances in which the statement came about. The trial judge should consider the cumulative effect of all the evidence relevant to the reliability issue with his or her focus on the particular dangers presented by the evidence: Khelawon, at para. 4.
153The factors to be considered on the inquiry into reliability cannot be categorized in terms of threshold and ultimate reliability. Trial judges are to undertake a more functional approach with their focus on the particular dangers raised by the hearsay evidence tendered for admission. But the approach of the trial judge to the reliability requirement and, more broadly, the issue of admissibility, must respect the distinction in roles between the trier of law and the trier of fact. To retain the integrity of the fact-finding process, the issue of ultimate reliability must not be pre-empted by a determination made on the admissibility voir dire: Khelawon, at paras. 4, 93.
154Where a proponent seeks to satisfy the reliability requirement by evidence about the circumstances in which the statement was made, a trial judge may also consider the presence of corroborating, or for that matter, conflicting evidence: Khelawon, at para. 100; Chretien, at para. 54.
155A final point concerns the duty of a trial judge to give reasons when ruling on the admissibility of evidence and the scope of appellate review of those reasons.
156The robust body of jurisprudence about the duty of trial judges to provide reasons for recording convictions and the scope of appellate review of those reasons for sufficiency does not apply in the same way to evidentiary rulings. Subject to a duty of procedural fairness, there is no general duty to provide reasons for an evidentiary ruling. The failure to give reasons on an evidentiary ruling is not fatal provided that the decision is supportable on the evidence or the basis for the decision is apparent from the circumstances. The importance of the subject-matter of the ruling also has a bearing on whether procedural fairness compels reasons: See, R. v. Woodard, 2009 MBCA 42, 245 C.C.C. (3d) 522, at paras. 22, 24-25.
The Principles Applied
157As I will explain, I would not give effect to this ground of appeal.
158The trial judge was required to decide whether the Crown had established that Larizza's KGB statement satisfied the reliability requirement of the principled exception to the hearsay rule. That determination required a functional approach, a consideration of all the circumstances surrounding the making of the statement, to determine whether the Crown had shown that there was no real concern about the truth of the statement because of the circumstances in which it came about.
159To begin, I am satisfied that the reasons of the trial judge on his admissibility ruling are adequate to permit meaningful appellate review. The reasons record the principles that the trial judge considered and, albeit briefly, why he was satisfied that the reliability requirement had been met. Nothing more was necessary.
160Second, the factual findings that go into the determination of reliability are entitled to deference. The trial judge was well-placed to assess the hearsay dangers, in this case, essentially sincerity, and the effectiveness of any safeguards to assist in their conquest. Absent an error in principle, the trial judge's determination of the threshold reliability is entitled to deference in this case.
161Among the circumstances in which the statement was made, recall that, unlike most hearsay statements where a declarant is unavailable to testify, this statement was made under oath with a warning about the consequences of providing false information to the police. Larizza was told that the statement would be disclosed to those affected by it. The information Larizza provided was first-hand, much of it confirmed by other evidence gathered during the investigation.
162To be fair, some of the factors that the trial judge noted seem unhelpful in determining the threshold reliability of the statement. That Larizza took the initiative in contacting the police. That he repeated crucial pieces of information on different occasions during the statement. However, I am satisfied that those considerations do not warrant interference with the reliability finding, given the other valid considerations.
163Third, the trial judge was well aware of the motive that underlay Larizza's statement. He wanted his bail varied. But the judge also knew that whatever Larizza said, it would make no difference to the charges outstanding against him. He took those factors into account although they seem to have greater relevance to the issue of the ultimate reliability than to what is required for reliability under the principled exception to the hearsay rule.
164Fourth, the trial judge had an advantage not often available in cases involving unavailable declarants and hearsay said to meet the reliability requirement because of the circumstances in which the statement was made. The trial judge was an eye and ear witness to the statement, thus was in a position to evaluate, at the threshold, the sincerity of Larizza to the extent it was revealed by his appearance on the video.
165Finally, the double hearsay claim is misplaced. Larizza recounted what Muzzi (and Ritchie) said and did the night before takedown day. They brought drugs to Larizza's house. They asked about leaving them in his garage. They did so. With Larizza's permission. Their conduct was an act in furtherance of a common unlawful design to traffic in controlled substances. What they did and what Larizza saw them doing was not hearsay. Their joint request was not hearsay. To the extent it implied trafficking, it was properly admissible under the co-conspirators' exception to the hearsay rule.
Ground #3: The Muzzi Guilty Plea and Underlying Facts
166This ground of appeal also has to do with evidence received at trial after a voir dire into its admissibility. First, some added background.
The Additional Background
167Frank Muzzi was arrested on takedown day on several drug offences and a related criminal organization charge. None of the charges related to the cocaine and marijuana found in Larizza's garage on takedown day. Shortly after Sal Larizza gave his KGB statement to police, Muzzi was charged with further offences arising out of the seizure of the cocaine and marijuana in Larizza's garage.
168Within a year of Larizza's statement, Muzzi pleaded guilty to several charges, including those related to the seizures at Larizza's residence. Muzzi was represented by very experienced counsel. The statement of facts read by the trial Crown to support the plea included a reference to a part of Larizza's KGB statement. The excerpt was a passage in which Larizza recounted what Muzzi had said when he brought a box over to Larizza's house and asked whether he could store it (the box) overnight:
It's just for the night. …Tomorrow morning it will be out, it'll be off the property.
Muzzi left the box. The following morning police executed a search warrant at Larizza's house, found the box and arrested Larizza.
169Muzzi's counsel said: "…my client acknowledges his involvements in the events in question and the facts with respect to these activities are acknowledged as being correct and ample for a finding of guilt."
170Frank Muzzi received an agreed-upon sentence. Charges against his mother and sister were withdrawn. Although the record of his guilty plea and sentencing proceedings contains no mention of it, the trial Crown also agreed not to call Frank Muzzi as a witness in any future proceedings against the other alleged co-conspirators.
The Ruling of the Trial Judge
171The trial judge admitted the fact that Muzzi pleaded guilty and made admissions for a non-hearsay purpose on the voir dire and the trial. The judge concluded:
I am prepared to admit that fact for use on this voir dire for the determination of the threshold reliability of the Larizza statement. It doesn't matter whether the contents of Muzzi's statements were true. The fact that he made the statements many months after Larizza made his statement is something the trier of fact may consider in determining the reliability of Larizza's statement. The fact that the truth of Muzzi's statements is not in evidence detracts from but does not nullify the usefulness of the fact that he made statements that tend to confirm Larizza's statement.
I am prepared to admit that fact and the contents of his admissions into evidence at trial as evidence to be used in determining the collateral issue of identification of the cell phone communicators other than the accused.
The Arguments on Appeal
172The appellant says that the trial judge was wrong to admit the Muzzi plea and acknowledged facts. Each was hearsay. Neither was necessary nor reliable.
173The appellant focuses principally on the trial judge's failure to consider the threshold requirement of necessity. Muzzi was in custody serving a sentence in a federal penitentiary. He was a competent and compellable witness for the Crown. There was no suggestion that, if called as a witness, he would resile from the admissions he made on entering his guilty plea. His availability meant that the necessity requirement could not be satisfied and the evidence should have been excluded.
174The appellant says that this evidence had no legitimate non-hearsay use, thus should not have been received on this basis either. It is well-settled that the plea of guilty of one person, even of a co-accused, is not admissible against another accused of the same or a related crime.
175The respondent rejects any suggestion that this evidence was received or used by the trial judge as evidence of the truth of the facts admitted. The evidence was tendered, received and used for a non-hearsay purpose, as circumstantial evidence to assist in proof of the identity of a person with whom the appellant communicated on his Blackberry.
The Governing Principles
176The plea of guilty of one person accused of a crime is not evidence, much less proof, that another, accused of the same crime, committed it: R. v. Berry (1957), 118 C.C.C. 55 (Ont. C.A.), at p. 60. A plea of guilty is a formal admission by its maker of each essential element of the offence to which the plea is entered. This formal admission relieves the Crown of the burden of proving these essential elements on admissible evidence beyond a reasonable doubt.
177The pleas of guilty or convictions of other alleged co-conspirators are not admissible to prove the existence or fact of the conspiracy in the trial of another or other alleged co-conspirators: R. v. May (1984), 13 C.C.C. (3d) 257 (Ont. C.A.), at p. 260, leave to appeal refused, [1984] 2 S.C.R. viii; R. v. Paquet (1999), 140 C.C.C. (3d) 283 (N.B. C.A.), at paras. 22-23.
178Where a plea of guilty by a third party is admissible in a criminal trial, it may be proven in a variety of ways. For example, the person who pleaded guilty may testify to that effect. Documentary evidence of the plea may be received under the principles relating to the admission of public documents or court records or the provisions of the Canada Evidence Act, R.S.C. 1985, c. C-5. See, R. v. Caesar, 2016 ONCA 599, 339 C.C.C. (3d) 354, at para. 33.
179Transcripts of court proceedings, including transcripts of guilty pleas, may be admissible to prove what was actually said or what actually happened in an earlier proceeding, but they are not rendered admissible as evidence of the truth of their contents simply because of their nature, common law principles or statutory provisions. The hearsay rule intercedes and must be overcome by some listed or principled exception if proving the truth of their contents is the object of their proponent: Caesar, at para. 47. Needless to say, if the proponent's purpose is otherwise, the hearsay rule erects no bar.
180Three brief points should be made about the operation of the hearsay rule in the circumstances.
181First, a critical feature of the hearsay rule is the purpose for which the evidence, which is said to be hearsay, is tendered. It is only where the evidence is offered to prove the truth of its contents that the hearsay rule applies and renders the evidence prima facie inadmissible: Khelawon, at para. 57; R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 36.
182Second, what a person says may have probative value as non-hearsay, as for example, to establish the identity of the speaker. Used in this way, no assumption of the truth of the statement is required and the hearsay rule is not implicated: R. v. Evans, [1993] 3 S.C.R. 653, at pp. 662-663; R. v. Ferber (1987), 1987 ABCA 86, 36 C.C.C. (3d) 157 (Alta. C.A.), at p. 160.
183Third, evidence of things done and said by alleged co-conspirators may be admitted as circumstantial evidence of the existence of an agreement. Admissibility on this basis for this purpose depends on the inferences available from the evidence as a whole. Evidence of things done and said admitted for this purpose need not be done or said in furtherance of the common design: R. v. Puddicombe, 2013 ONCA 506, 299 C.C.C. (3d) 534, at para. 112.
The Principles Applied
184I would not accede to the argument advanced in support of this ground of appeal for three reasons.
185First, the basis on which the evidence was admitted and used. The evidence of Muzzi's plea of guilty and the iteration of the facts on which it was based was neither tendered nor used to prove the truth of what was said. It was used on the voir dire in determining the threshold reliability of Larizza's KGB statement and in proving Muzzi's identity as a person with whom the appellant communicated. Neither use attracted the application of the hearsay rule.
186Second, the admissibility of the evidence as non-hearsay. Evidence of what Muzzi said and did, as for example in Larizza's garage the night before the takedown, was admissible as circumstantial evidence of the existence of an agreement to traffic in controlled substances. The manner in which the trial judge used this evidence in determining whether the appellant's guilt had been proven beyond a reasonable doubt did not exceed the basis upon which it was tendered and properly admissible.
187Third, the inclusion of Larizza's statement in the uncontested statement of facts. This complaint is unavailing as a result of my determination that Larizza's KGB statement was properly admitted at trial.
Ground #4: The Admissibility of Muzzi's and Larizza's Statements under the Co-conspirators' Exception
188This ground of appeal asserts error in the reception of evidence of Muzzi's utterances on the night before takedown day and Larizza's repetition of them in his KGB statement admitted in evidence at trial. It is unnecessary to repeat the background events that resulted in Larizza's statement or its admission at trial. The point raised is a narrow one and can be determined briefly in light of the discussions that have preceded it.
The Ruling of the Trial Judge
189In a brief endorsement, the trial judge reviewed the argument advanced at trial and relying upon R. v. Chang (2003), 173 C.C.C. (3d) 397 (Ont. C.A.) explained his rejection of it:
The defence argued that since Muzzi is incarcerated, he was "available" and the Crown should not take refuge behind an exception to the hearsay rule. I was impressed with the defence argument that the Crown could not avoid presenting Muzzi to the court in person simply because of a promise by the Crown not to call him as a witness which was part of Muzzi's sentencing proceedings. In retrospect I agree with the Crown that just as the Crown has a discretion to proceed against alleged co-conspirators jointly thereby making them "unavailable" so too the Crown should not be restricted in the exercise of its discretion with respect to plea discussions. ( R. v. Chang ¶ 103 ). In any event, we cannot expect in the circumstances of this case to get evidence from Muzzi of the same value. (See Chang ¶ 105 .) In the event the defence has not met the onus placed upon it.
The Arguments on Appeal
190In advancing argument in support of this ground of appeal, the appellant accepts that under the co-conspirators' exception to the hearsay rule, acts and declarations of co-conspirators in furtherance of the common design may be admitted against other probable members of the conspiracy to prove their actual membership or participation in that conspiracy. The appellant also accepts that even when it applies to double hearsay, the co-conspirators' exception as articulated in R. v. Carter, [1982] 1 S.C.R. 937, satisfies the necessity and reliability requirements of the principled exception to the hearsay rule, at least where the declarant's testimony is unavailable to the Crown because he or she is a co-accused.
191The appellant also accepts that it is his burden to demonstrate why in this case the evidence did not meet the fundamental criteria applicable to the principled approach to the hearsay rule. However, he says that he has met that burden because the acts and declarations of Muzzi do not satisfy the necessity requirement under the principled approach. The appellant points out that Muzzi was available to testify for the Crown. He was in a federal penitentiary serving a sentence for his involvement in various drug offences. He was a competent witness for the Crown and his attendance could be compelled by subpoena. Nothing in the trial record indicates that he would have been uncooperative or would have failed to give evidence in accordance with the admissions he made when he pleaded guilty. This demonstrated lack of necessity renders the evidence inadmissible.
192The respondent takes the position that the evidence in issue was properly admitted. The evidence, which consisted of acts and declarations of Muzzi in furtherance of the common unlawful object, was admissible despite its hearsay nature under the co-conspirators' exception to the hearsay rule. As a general rule, the co-conspirators' exception satisfies the criteria of necessity and reliability under the principled approach.
193The respondent acknowledges that in some circumstances evidence that is admissible under the co-conspirators' exception may not satisfy the necessity and reliability requirements of the principled approach. But those instances will be rare. In this case, as the trial judge properly concluded, the appellant has failed to meet that burden in connection with the necessity requirement.
194Neither Ritchie nor Muzzi was available to testify.
195Ritchie was awaiting trial on a separate indictment. Although he was a competent witness for the Crown at the appellant's trial and could be compelled to testify, calling him as a witness would leave the Crown open to an argument that any prosecution of Ritchie after he gave evidence at the appellant's trial would be an abuse of process.
196In connection with Muzzi, who was also a competent witness for the Crown who could be compelled by subpoena to attend the appellant's trial, the respondent submits that he too was unavailable. When Muzzi pleaded guilty and received an agreed-upon sentence, the trial Crown agreed that Muzzi would not be called as a prosecution witness in the subsequent trials of any alleged co-conspirators. This was an agreement that the trial Crown could make in the exercise of his prosecutorial discretion. There is no suggestion that such an agreement was beyond the reach of prosecutorial discretion or amounted to an abuse of that discretion. As a result, Muzzi was not available as a witness.
197In addition, the respondent reminds us, the necessity requirement refers to reasonable necessity. It may be met where a trial judge is satisfied that there is no reasonable prospect of obtaining meaningful evidence from a witness of an accurate and frank rendition of relevant events or evidence of equivalent value to contemporaneous acts and declarations.
The Governing Principles
198Several principles combine to inform the determination of this ground of appeal.
199First, the relationship between the listed and principled exceptions to the hearsay rule.
200The traditional or listed exceptions to the hearsay rule, such as the co-conspirators' exception, remain presumptively in place. However, a listed exception can be challenged to determine whether it is supported by the indicia of necessity and reliability required by the principled approach: R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15.
201Sometimes, evidence that would be admissible under a listed exception may be excluded because, in a given set of circumstances, the requirements of necessity and reliability have not been met. But these instances are said to be "rare": Mapara, at para. 15.
202Second, the relationship between the co-conspirators' exception and the principled approach.
203The co-conspirators' exception to the hearsay rule meets the requirements of the principled approach to the hearsay rule: Mapara, at para. 31. The conditions imposed under Carter provide sufficient circumstantial guarantees of trustworthiness to satisfy the reliability requirement: Mapara, at para. 27. The necessity requirement is satisfied by a combination of factors such as the non-compellability of a co-accused declarant, the undesirability of trying alleged co-conspirators separately, and the evidentiary value of contemporaneous declarations made in furtherance of an alleged conspiracy: Mapara, at para. 18; Chang, at para. 105.
204Third, the requirement or indicium of necessity.
205The criterion or requirement of necessity is accorded a flexible definition, capable of encompassing diverse situations with a common feature – the unavailability of relevant direct evidence. Necessity may be established not only by the unavailability of the declarant for testing by cross-examination, but also where we cannot expect to get evidence of the same value from the same or other sources: R. v. Smith, [1992] 2 S.C.R. 915, at pp. 933-934; Chang, at para. 105. Whether the necessity criterion has been met requires a consideration of all of the circumstances in each individual case: R. v. B. (K.G.), [1993] 1 S.C.R. 740, at p. 798; Chang, at para. 105.
The Principles Applied
206Several reasons persuade me to reject this ground of appeal.
207First, it is a "rare case" in which evidence that is admissible under the co-conspirators' exception does not also satisfy the indicia of necessity and reliability under the principled exception. Reliability is not an issue here and, in any event, is satisfied by the Carter rule. Necessity is to be determined on the basis of a consideration of all the circumstances. A trial judge's conclusion on this issue is entitled to deference.
208Second, necessity is accorded a flexible definition. It is capable of encompassing diverse situations. At its core, necessity is concerned with the unavailability of relevant direct evidence. The physical or testimonial unavailability of the declarant is not the only basis upon which necessity may be established.
209Third, for different reasons, relevant direct evidence was not available from either Ritchie or Muzzi, thus the necessity for its introduction under the hearsay exception.
210For practical purposes, Muzzi was not available to give evidence for the prosecution at trial. As a non-party at the appellant's trial, Muzzi was a competent witness for the Crown and could be compelled to testify. But whether as a quid pro quo for his guilty plea or otherwise, the trial Crown agreed that Muzzi would not be called as a witness for the Crown in any later prosecution of an alleged co-conspirator. This decision was an exercise of prosecutorial discretion elusive of judicial review absent evidence of abuse of process of which there is none here.
211As for the availability of Ritchie to provide relevant direct evidence, the circumstances are different, but the result the same. As a separately indicted accused Ritchie was competent and could be compelled to give evidence for the Crown. But, leaving to one side his willingness to testify and to do so truthfully, about which we know nothing, requiring him to testify at the appellant's trial would invite an application by Ritchie at his own trial to stay proceedings for abuse of process.
212In the end, there is also the question of onus. That fell upon the appellant to establish that this was one of the "rare cases" in which the co-conspirators' exception failed to comply with the requirements of the principled approach, in this case, because it failed to establish necessity. In that task, the appellant failed.
Ground #5: Unreasonable Verdicts
213The appellant challenges as unreasonable the convictions entered on several counts alleging preliminary and substantive offences involving cocaine. A brief reference to the trial judge's reasons provides sufficient background to assess the viability of this complaint.
The Reasons of the Trial Judge
214The trial judge found the appellant not guilty of trafficking cocaine as a result of his purchase of cocaine from a person described as "Penguin" and also of conspiracy to traffic cocaine with Penguin. The trial judge considered the evidence adduced at trial insufficient to ground a finding that Penguin was aware that the appellant purchased the cocaine for the purpose of selling it.
215The trial judge then examined the relationship between the appellant and Ritchie. He found that Ritchie's assistance in acquiring the cocaine from Penguin bespoke an agreement to which Ritchie and the appellant were parties. In reaching this conclusion, the judge considered the nature of the relationship between the two men; the substantial amount of cocaine involved; and Ritchie's use of the same method of transferring money that he had used in the past in drawing an inference that the cocaine – two kilograms – would be trafficked. The agreement to traffic established a conspiracy to traffic cocaine and rendered the appellant and Ritchie parties to trafficking.
216The trial judge was also satisfied that the appellant had constructive possession of the cocaine from Penguin when three factors coalesced:
i. the money was paid;
ii. the cocaine was shipped to the appellant; and
iii. the appellant was provided with the tracking details for the package containing the cocaine.
The Arguments on Appeal
217The appellant acknowledges that the trial judge correctly concluded that, as a mere purchaser of cocaine, the appellant could not be convicted of conspiracy to traffic or trafficking cocaine with Penguin. Where the trial judge erred, the appellant says, was in drawing the further inferences necessary to reach a conclusion of guilt on the counts involving Ritchie.
218The appellant contends that the cumulative effect of the evidence demonstrated nothing more than that Ritchie was an agent for the purchaser – the appellant – whose only role was to send the money to Penguin. There was no evidence that Ritchie knew the purpose for which the money was being sent. It follows that the evidence could not support a finding that Ritchie and the appellant conspired to traffic cocaine. In addition, the simple fact that money was sent and cocaine shipped did not establish that the appellant was in possession of cocaine or party to a conspiracy to possess it.
219The respondent begins with a brief reminder about the scope of review available when an appellant claims a verdict is unreasonable. The fundamental issue is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. Absent a palpable and overriding error, an appellate court must not revisit findings of fact made or inferences drawn by triers of fact. These findings and inferences are entitled to significant deference and cannot be pushed aside simply because other inferences may have been available or the reviewing court would not have decided the case in the same way.
220The respondent says that the cumulative effect of the email correspondence adduced at trial showed that the appellant and Ritchie worked together to purchase and have delivered two kilograms of cocaine from Penguin. It was acknowledged at trial that two kilograms of cocaine was an amount sufficient for the purpose of trafficking.
221The respondent contends that the appellant had constructive possession of the two kilograms of cocaine shipped by Penguin in return for the cash payment sent by Ritchie. The appellant knew that Penguin sent cocaine to him, in return for a cash payment, and provided the appellant with the tracking details necessary to take delivery. This satisfied the requirements of constructive possession.
222Finally, the respondent relies on the fact that the appellant did not provide an innocent explanation of his conduct as a factor that undermines the appellant's assertion that the verdict was unreasonable.
The Governing Principles
223Several principles of general application have a say in our decision on this ground of appeal. Some have to do with the scope of review permitted in response to claims of an unreasonable verdict. Others relate to drawing inferences from evidence adduced at trial. Yet others explain the requirements for constructive possession.
224First, unreasonable verdict review.
225To decide whether a verdict is unreasonable, we must determine whether the verdict rendered is one that a properly instructed jury or a judge could reasonably have rendered: R. v. Yebes, [1987] 2 S.C.R. 168, at p. 186; R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9. We must not of course merely substitute our view for that of the trial judge. However, in order to apply the test, we must re-examine and to some extent, within the limit of appellate disadvantage, re-weigh and consider the effect of the evidence adduced at trial: Yebes, at p. 186.
226A verdict may also be unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that is:
i. plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding; or
ii. incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge.
See, R.P., at para. 9; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21.
227In considering the reasonableness of the verdict, this court may infer from the appellant's failure to testify, an inability to provide an innocent explanation: R. v. Ellis, 2013 ONCA 739, 303 C.C.C. (3d) 228, at para. 51.
228Second, inferences and claims of unreasonable verdicts.
229An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established by evidence adduced at trial. An inference is a conclusion that may, not must, be drawn in the circumstances. A single item or several items of evidence may give rise to more than one inference. It is for the trier of fact, whether judge or jury, to determine what inferences are to be drawn from the evidence taken as a whole and whether the cumulative effect of those inferences satisfies or falls short of the standard of proof required in a criminal case.
230Whether a trial judge has drawn the proper inference from a fact or group of facts established by the evidence is a question of fact, as is whether the whole of the evidence is sufficient to establish an essential element of an offence: R. v. Kent, [1994] 3 S.C.R. 133, at p. 143. Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by a trial judge unless those findings and inferences are:
i. clearly wrong;
ii. unsupported by the evidence; or
iii. otherwise unreasonable.
Any error must be plainly identified and be shown to have affected the result. In other words, the error must be shown to be at once palpable and overriding: R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9.
231It is of the essence of circumstantial evidence that a single item of evidence may support more than one inference. The same may be said of several items of circumstantial evidence, whether considered individually or assessed cumulatively. That different inferences may be drawn from individual items of evidence, or from the evidence as a whole, does not entitle a reviewing court to re-weigh or recalibrate the evidence by substituting, for a reasonable inference drawn by the trial judge, an equally – or even more – persuasive inference of its own. The task of the reviewing court is to determine whether the inferences drawn by the trial judge are "reasonably supported by the evidence". No more. No less. See, H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 74.
232Third, the elements of possession.
233A person may be found in possession of a thing in different ways. Among those ways is knowingly having the thing in some place, irrespective of whether the person owns or occupies the place, for the use or benefit of himself or somebody else: Criminal Code, s. 4(3)(a)(ii).
The Principles Applied
234As I will briefly explain, I would reject this ground of appeal.
235The core findings of fact made by the trial judge do not reflect palpable and overriding error. The inferences drawn by the trial judge from the cumulative effect of this evidence fall well within the field of reasonable inferences available on this evidence. As the communications reveal, this was not a first-time transaction between Ritchie and the appellant, on the one hand, and Penguin, on the other. The quantity of drugs shipped – two kilograms – was plainly for the purpose of trafficking. The drugs were being shipped to a place for pick-up in a package that the appellant had the information necessary to locate. Nothing more was required.
Conclusion
236For these reasons, I would dismiss the appeal.
Released: April 11, 2017
"David Watt J.A."
"I agree. G.R. Strathy C.J.O."
"I agree. K.M. Weiler J.A."
1While a trial judge is nevertheless obliged to balance whether the probative effect of the statement outweighs its prejudicial value, here, it was obvious that he did.
