Court of Appeal for Ontario
Date: 2022-08-15 Docket: C68959
Before: Strathy C.J.O., Coroza and George JJ.A.
Between: Her Majesty the Queen, Appellant And: James Wise, Respondent
Counsel: Elise Nakelsky and Manasvin Goswami, for the appellant Howard Krongold and Jon Doody, for the respondent
Heard: March 14, 2022
On appeal from the acquittal entered on December 7, 2020 by Justice Kevin B. Phillips of the Superior Court of Justice, sitting with a jury.
1The respondent is alleged to have murdered Raymond Collison (“Collison”) at some point between 2009 and 2014. He was initially charged with first degree murder, but ultimately stood trial for second degree murder. A jury found him not guilty. The Crown now appeals, raising these three grounds: 1) the trial judge’s inquiry into discharging a juror breached the secrecy of the jury’s deliberations and necessitated a mistrial; 2) the application judge erred in her analysis under s. 8 of the Canadian Charter of Rights and Freedoms and by excluding evidence under s. 24(2) of the Charter; and 3) the application judge erred by excluding evidence under the hearsay rule. The Crown argues that because the acquittal was the product of compromised jury deliberations, and because the exclusion of evidence materially impacted the respondent’s acquittal, a new trial is required.
2While the Crown’s notice of appeal indicates that, if successful, it seeks a new trial for first degree murder, it has abandoned that position. It seeks a new trial for second degree murder.
3For the reasons that follow, I would dismiss the appeal.
Background
4The respondent and Collison lived in the same rural community. In 2009 Collison went missing. Five years later his skeletal remains were located in a culvert close to the respondent’s residence. Collison had been shot once in the back of the head, and four times in the back. During the police investigation it was discovered that the respondent harboured negative feelings toward Collison which led to the respondent quickly emerging as the primary suspect. Evidence of animus included the respondent telling a friend that he did not want Collison “around anymore”; that Collison was a “pest”; and that he was “sick and tired” of Collison and his drinking. Also, shortly before his disappearance, Collison, while visiting the respondent’s landlady, stated to a friend that the respondent (who was in their view and operating a riding lawn mower) “told him ‘he didn’t want him to come around anymore’”.
5The Crown’s case was entirely circumstantial. The physical evidence implicating the respondent included the following:
i) A “Dayco Top Cog” automotive belt, threaded through a metal shackle, was found with Collison’s remains. This same type of belt was found in the respondent’s garage, and had not been manufactured in Canada for over twenty years.
ii) The respondent’s landlady owned a car on which this belt could be used.
iii) During a search of the respondent’s garage, a police officer observed a bullet hole in the wall at the height of the officer’s chest. While there was insufficient DNA for identification, there were chemical indications of blood along the same wall as the bullet hole.
iv) Police located the truck the respondent had been driving at the time of Collison’s disappearance, in which there were chemical indications of blood, including on the bumper and tailgate. The tailgate stains were confirmed to be human blood.
6At trial, the Crown also relied on the respondent’s post-offence conduct, including the following:
i) When Collison went missing, the respondent began making jokes and spreading rumours about him. For instance, he told people that Collison had been seen, alive and well, in various locations.
ii) The respondent changed his truck’s licence plates, and then sold it shortly thereafter (even though he had just purchased it four months prior).
iii) The respondent took and sold Collison’s trailer as well as a truck that had been in Collison’s possession.
iv) The respondent was untruthful to the police during their investigation. For example, he claimed to not know Collison, which was untrue. He told the police that he had burned Collison’s trailer which, of course, was untrue as he had taken possession of and sold it.
v) Even though the police did not disclose to the public the cause of death, or that a .22 calibre firearm was used, the respondent, when interviewed by police, suggested that another person might have been involved and that that person had a .22 calibre firearm.
7The Crown relied on several other pieces of circumstantial evidence including that the respondent was familiar with the remote location where Collison’s body was found; that he bragged to others he could easily obtain a gun; and that he had expressed an interest in Collison’s murder.
Decisions Below
Pretrial Applications
a. Pretrial Ruling on the ss. 8 and 24(2) Charter Application
8In October 2014 the police obtained, and executed, a general warrant that authorized a covert entry into the respondent’s residence. Nothing was seized but several items were photographed, including what was described as a composition book with pages removed. Approximately two years later, after the respondent was arrested, the police obtained a search warrant which led to the seizure of the composition book as well as a weekly planner. A forensic examination of the book determined that a two-page map with circled X’s had been ripped out. The police theory was that this map revealed the location of Collison’s remains, as well as the locations of other suspicious deaths and known homicides.
9The application judge found that the 2014 general warrant, and subsequently obtained 2016 search warrant, should not have issued, and that, therefore, the police violated the respondent’s rights under s. 8 of the Charter. She found that “the ITO did not contain sufficient credible and reliable evidence to permit an issuing justice to authorize the warrant”. She concluded that the evidence seized should be excluded pursuant to s. 24(2) of the Charter, finding that the police conduct was serious; the impact of the breach significant; and that on balance the factors from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 favoured exclusion.
b. Pretrial Ruling on the Admissibility of Hearsay Statements
10The Crown sought to introduce several hearsay statements, including statements made by Collison to a friend, Tammy Smith (“Smith”). The first of the statements to Smith occurred while they were walking together at the respondent’s landlady’s house. Collison pointed to a man driving a riding lawn mower – whom the Crown submitted was the respondent – and said that he (the respondent) had threatened to make him (Collison) “disappear”. The second statement was, when asked by Smith why the man would say that, Collison replied “he doesn’t want me around anymore”. Collison’s third statement – an explanation to Smith as to why he wanted to stay with her for a while – was that he “had to get out of there”. The Crown argued that these statements were admissible under the state of mind exception to the hearsay rule or the principled exception. The application judge found that, in light of Collison’s mental health issues, all three statements were inadmissible under the state of mind exception, as they were made in “circumstances of suspicion”. She held that were she incorrect and the statements were admissible under the state of mind exception, this was a rare case where it was appropriate to consider the statements under the principled exception. She held that, given Collison’s disordered thinking and the lack of corroborative evidence, the first and third statements were insufficiently reliable to be admissible under the principled exception. The first and third statements were excluded.
Jury Inquiry and Mistrial Application
11During deliberations, the jury asked two questions. Each was answered, with the jury then being instructed to continue deliberations. At some later point the jury sent the trial judge a note indicating that they could not reach a unanimous verdict. The trial judge and counsel all agreed that the jury be given the standard exhortation. The exhortation was given, and the jury was again instructed to continue deliberations. The following day, the jury sent another note which indicated that they continued to be deadlocked and that they were confident further deliberations would not assist.
12That same day, the trial judge learned, from a court services officer, that one juror was threatening others. The trial judge indicated to counsel that he would receive input on how best to address this, but after a brief recess returned to advise that he was going to conduct an inquiry. While the defence agreed with this approach, the Crown expressed concerns about the risks it posed to jury secrecy. The trial judge told counsel that he was “confident that the essence of a threat could be communicated without revealing deliberations”. The trial judge proceeded to question the jury foreman, six other jurors, and juror 11, who he understood to be the agitator. The inquiry made it clear that juror 11 had indeed threatened other jurors. Unfortunately, during the course of the inquiry, information about juror votes was revealed. The trial judge then heard from counsel on what to do next. The Crown sought a mistrial. The respondent asked that juror 11 be discharged and that the jury be instructed again to continue with their deliberations. The trial judge ultimately agreed with the respondent. While he declined to grant a mistrial, he discharged juror 11. The trial judge then recharged the jury. He advised them that juror 11 was removed because he was impeding the process, and exhorted them once again to continue deliberations.
13The jury deliberated for another day and a half and returned a not guilty verdict.
Issues
14This appeal gives rise to three issues:
i) Did the trial judge err by not declaring a mistrial?
ii) Did the application judge err by finding a s. 8 Charter violation? If not, did the application judge err by excluding the evidence pursuant to s. 24(2)?
iii) Did the application judge err by excluding evidence under the hearsay rule?
15I will address each in the order set out above.
Discussion
A) Did the trial judge err by not declaring a mistrial?
16Without receiving input from counsel, the trial judge advised that he was going to question all of the jurors. For reasons I will explain in a moment, he ultimately questioned only 8 of the 12, including juror 11, who was said to be causing the problems in the jury room. He individually questioned jurors 10, 12, 9, 8, 7, 6, 5, and 11. What follows is a summary of what they each told the trial judge:
Juror 10 (Foreperson): He heard juror 11 tell another juror to “fuck off”. Juror 10 advised that, because of juror 11, it was difficult to have an open discussion. After the trial judge asked juror 10 to be more direct juror 10 disclosed that juror 11 said that “I wish this could happen to your parents, so then you would know how it feels”, which, while not directed to any one particular juror, was a clear reference to the other jurors having someone they care about being murdered.
Juror 12: Disclosed that juror 11 was “chirping” the other jurors, constantly talked over others, made comments under his breath, was generally “bullying”, and had caused a female juror to break down and cry.
Juror 9: Disclosed that during discussions there was a lot of “side bar chirping” which was “very negative”. When the trial judge asked the juror to provide examples, after cautioning that he did not want to know about the content of deliberations, juror 9 advised that juror 11 said “Guilty, he’s guilty, he’s guilty …. I want to get out of here, I’m done. This is stupid”, which clearly revealed juror 11’s position, and, indirectly, the view of other jurors.
Juror 8: Described deliberations as a “toxic environment”. Juror 8 advised that two jurors were “very narrow minded” and unwilling to deliberate further but that one in particular – juror 11 – “bullied” others and uttered threatening comments. For instance, juror 11 at one point said, “I hope that your parents die or are killed”, and at another point told juror 8 that he wanted to “punch [another juror] out”. In addition, juror 8 described juror 12 as being “very stuck in [their] ways”.
Juror 7: Described “someone” in the jury room as being “really aggressive” which was causing discomfort. Juror 7 described themselves as quiet and as being “too scared to put [their] point across”, and that others were “throwing like little jabs, like side comments about it … they don’t want to see it as my point they want me to see it as theirs, like, I should vote the way they’re doing it.” Juror 7 named juror 11, describing him as aggressive, and as someone who presents his view as “you have to agree with me”.
Juror 6: Advised that some of the jurors were trying to “force their opinion” on the others and, in respect of juror 11, he was “more vocal” and “in confrontation with everyone”. Juror 6 told the trial judge that every time a fellow jury member attempted to speak, juror 11 would “try to cut and dump it”.
17I pause here to note that following the trial judge’s questioning of juror 6, the Crown renewed its concerns about jury secrecy. Crown counsel specifically referenced juror 9 who had made it clear that jurors were in camps; that juror 11 was causing the issues; and that juror 11 was clearly in favour of convicting the respondent. The trial judge acknowledged juror 9’s regrettable comments but decided to carry on. He told counsel, “I’m trying to tell them not to disclose their, their deliberations. Unfortunately, that’s not been entirely successful, but I, I think I’m going to proceed and take a, a piece of evidence from each of these jurors, including Number 11, actually, at the end, and then we’ll discuss what to do, if anything, about it.” He then proceeded to question jurors 5 and 11:
Juror 5: Described juror 11 as “condescending and very rude, who makes threats when other people are speaking, who is swearing, who is not listening, and not able to deliberate and negotiate in a respectful and adult way.” Juror 5 continued by telling the trial judge, in relation to juror 11, that “[w]hen people are expressing an opinion that does not align with his point of view he would say things like, ‘I wish your parents would die by a murderer’, or ‘I wish I could just punch him in the face’, or, ‘Fuck this shit’, or, ‘Like, I can’t believe this, you’ve been sitting here, and nobody is listening. For four weeks you’re just wasting everybody’s time …. you’re such idiots.’” In juror 5’s view, the other jurors were not comfortable speaking their minds.
18After hearing from juror 5 the respondent’s counsel advised the trial judge that he now shared the Crown’s concerns about intruding upon jury secrecy and was of the view that there was no need to continue questioning jurors. While the trial judge did not proceed to question jurors 1, 2, 3 and 4, he did question juror 11:
Juror 11: Advised that he would “like to leave this, this thing”. He admitted telling a fellow juror to “fuck off” and to saying he wanted to punch another juror. He also acknowledged suggesting that another juror could benefit from the experience of having a parent killed.
19After the trial judge’s inquiry, the Crown sought a mistrial. The Crown argued that the cumulative effect of the inquiry process breached the jury secrecy rule and undermined trial fairness. The Crown further argued that the dismissal of juror 11 would cause the remaining members to disapprove of, not just his conduct, but his opinion (which was to convict). The respondent wanted juror 11 discharged and for deliberations to continue. In the end, the trial judge declined to grant a mistrial, discharged juror 11, and directed that deliberations continue. As mentioned, after another day and a half of deliberations, the jury returned a not guilty verdict.
20To begin, as acknowledged by the trial judge, it was indeed unfortunate that juror 11’s vote was disclosed by juror 9. Apart from that, however, the trial judge conducted a careful and limited inquiry into juror 11’s misconduct, which did not give rise to a miscarriage of justice. In other words, no reasonable person could possibly believe that juror 11 was discharged because of his opinion. He was discharged because of his misconduct. To accept the Crown’s position in this case would be to say that a mistrial is an automatic remedy upon such a revelation, which is not the current state of the law.
21A mistrial is a remedy of last resort to be granted only where necessary to prevent a miscarriage of justice: R. v. Chiasson, 2009 ONCA 789, 258 O.A.C. 50, at para. 14. Deciding whether a mistrial is necessary to prevent a miscarriage of justice is a matter within the discretion of the trial judge because the trial judge is in the best position to determine whether the misconduct will impact the accused’s right to a fair trial. Therefore, deference will be shown to the trial judge’s decision absent an error in principle or a decision that is clearly wrong: R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, at para. 58; R. v. John, 2016 ONCA 615, 133 O.R. (3d) 360, at para. 82, leave to appeal refused, [2017] S.C.C.A. No. 101; R. v. Gager, 2020 ONCA 274, at para. 91, leave to appeal refused, [2020] S.C.C.A. No. 443, [2020] S.C.C.A. No. 444.
22Consider the trial judge’s approach. He, first, cautioned the jurors who were questioned against revealing anything about their deliberations. Second, he asked only open-ended questions about whether anything inappropriate had occurred in the jury room that affected their ability to deliberate. But for one slip by one juror, this inquiry achieved its designed purpose by revealing a disturbing pattern of behaviour by juror 11. It perhaps would have been preferrable had the trial judge heard from counsel before embarking on the inquiry, and a better approach would surely have had juror 11 questioned first, but the trial judge did not err in principle or render a decision that was clearly wrong. The question is whether the trial judge’s approach complied with the following non-exhaustive list of considerations, ensuring that the process: 1) was fair to the parties and members of the jury; 2) open, on the record, and in the presence of the accused and counsel; 3) enabled the trial judge to determine the true nature of the internal problem faced by the jury, and to resolve it; and 4) preserved the integrity, confidentiality and impartiality of the jury’s deliberation process: R. v. Giroux (2006), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 35, leave to appeal refused, [2006] S.C.C.A. No. 211. Here, the process was fair to both parties. It was done in open court, on the record, and in the presence of the accused and counsel; and conducted with a view to learning more about the problem that existed in the jury room.
23Did the trial judge sufficiently preserve the integrity, confidentiality and impartiality of the deliberation process? The inquiry could have been done more cautiously and carefully, and, as mentioned, probably should have begun with juror 11, but at the end of the day the process was fair. Here, the only disclosure that meaningfully intruded on jury secrecy was juror 11’s vote and, once revealed, he was not permitted to continue. The inquiry also revealed that an unknown number of jurors were “on the side of not guilty”, but this was unsurprising given the jury was deadlocked. Juror 7 said she felt juror 11 was trying to prevent her from participating in deliberations and attempting to “sway” her vote, but it was unclear whether she was firmly in favour of acquittal. Therefore, the inquiry revealed the vote of only one juror, the impugned juror, and at most an inference about the leanings of some of the others.
24The bottom line is, a breach of jury secrecy does not automatically mean there was a miscarriage of justice. Consider what this court had to say in R. v. Kum, 2015 ONCA 36, 320 C.C.C. (3d) 190, where, during deliberations, the jury sent the trial judge a note that revealed extensive details about their deliberations, including the vote of every single juror; what the key “sticking point” was; and in what way the jurors disagreed.
25In Kum, the trial judge received further notes from the jury that steered her to two jurors in particular (who were likely the two holdouts for acquittal). The trial judge proceeded to question those jurors, as well as two others who had made individual complaints. Each of the two holdouts denied the allegations of misconduct being made against them. When the two complaining jurors were questioned, they gave inconclusive evidence to substantiate their complaints. The trial judge then decided to question the remaining jurors. The effect of the extensive questioning of those remaining jurors about the conduct of the two holdouts was to intrude on jury secrecy. The inquiries led the trial judge to discharge the two jurors who had been complained of (one at their own request), when it was known that these two were likely the two votes for acquittal, and when the jurors’ misconduct was in doubt.
26Writing for this court, Feldman J.A. held that, after questioning the two complaining jurors, the jury should have been exhorted and directed to continue with deliberations, given the trial judge knew: 1) the jury was deadlocked; 2) the number of votes in favour of conviction and acquittal; 3) that the two impugned jurors were the two in favour of acquittal; 4) that both jurors denied the allegations against them; and 5) that the allegations were unsubstantiated. Feldman J.A. held, at para. 58:
In [the] circumstances, in order to preserve the secrecy and sanctity of the jury deliberation process and the fairness and perception of fairness of the trial, the trial judge should have exhorted the jury on their duties and allowed them to continue their deliberations.
27Even though jury secrecy was violated, this court held that, in the circumstances of that case, deliberations should have continued with the full jury complement. To do anything else would be to countenance and further the jury majority’s attempt to “cast off” the dissenting jurors they were unable to convince, which is essentially what the trial judge did.
28Consider also the British Columbia Court of Appeal decision of R. v. Peters, 1999 BCCA 406, 137 C.C.C. (3d) 26 where it was communicated to the trial judge that a juror felt he was unable to judge the matter. During the trial judge’s examination of that juror, the juror blurted out what his verdict would be. The juror was discharged, and the jury continued deliberations and delivered a verdict the next day. The court concluded, at para. 88:
That leaves just the judge’s decision to not declare a mistrial as a ground of unfairness. With respect, I do not believe that decision indicates unfairness. The juror was discharged on proper grounds and the Criminal Code authorizes ten jurors to deliver a unanimous verdict. There are no grounds for believing that the remaining jurors were affected in the honesty of their deliberations by the discharge of the juror. The fact that the remaining members deliberated into the next day is strong evidence that the accused received a fair and valid verdict. Moreover, and I think this is important, the juror disclosed that he was not prepared to discharge his responsibilities as a juror before he blurted out what his verdict would be.
29These cases affirm my earlier point that a mistrial is not an automatic remedy when jury secrecy is violated. It also makes clear that if a juror is discharged on proper grounds, such as an unwillingness to discharge their responsibility as a juror, the fact that their vote was revealed during the inquiry will not necessarily undermine trial fairness. In this case, as in Peters, the juror in question (juror 11) was discharged due to his conduct, and there was no basis to find that the remaining jurors were affected in the honesty of their deliberations by his discharge. The fact that the remaining jurors deliberated for a day and a half before returning a verdict is strong evidence that juror 11 was not a “hold out” per se and that the respondent received a fair and valid verdict.
30Further, the Crown is simply reiterating the position it took before the trial judge, which is, in effect, that because jury secrecy was violated a mistrial must be declared. The trial judge addressed this argument when he said the following:
The question is now, without Juror Number 11, should this trial proceed? The Crown argues for a mistrial; the Defence argues that the trial should continue. The Crown argument, in essence, is that the process followed has revealed the state of mind of the jury, vis-à-vis verdict, so much so that the trial cannot now fairly continue. The Crown proposes that if I dismiss Juror 11 and continue on, there is risk the jury will take from his removal that the court disapproves of the position he advocated. The unfair result, says the Crown, would be that the court will affect whatever decision the jury ultimately comes to.
A mistrial, of course, is the ultimate remedy to be imposed only in the clearest of cases. The fundamental idea is that notwithstanding whatever remedy may be put in place, proceeding forward would result in an injustice.
I am unable to agree with the Crown that proceeding with a jury of 11 jurors would result in injustice on the facts before me.
31The trial judge also addressed the concern that removing juror 11 might be seen as a disapproval of his position to convict:
I am also not worried that my removal of Juror Number 11 will communicate to the remainder that I somehow disapprove of the position that Juror 11 was advocating. I am confident that the jury would not take such an inference. I intend to tell them that I dismissed him as a result of his behaviour that prohibited the free exchange of ideas.
32His instruction to the jury after juror 11’s discharge reinforced this point:
It is not my intention to convince everybody, or anyone, rather, to change his or her mind, and it is not my intention to endorse or frown upon any position. I have no position about what you are discussing. Of course, I don’t know what you’re discussing, all I’m trying to say is that I want the free and fair, and proper exchange of perspectives to be done in the respectful and professional way.
33The trial judge’s instruction to the remaining jurors was sufficient, as it made clear that the removal of juror 11 should not be seen as a disapproval of juror 11’s position. In the end, the trial judge’s decision to discharge juror 11, and to not declare a mistrial, does not disclose an error in principle, nor is the decision clearly wrong. I would therefore reject this ground of appeal.
B) Did the application judge err in finding a s. 8 Charter violation? If not, did the application judge err by excluding the evidence pursuant to s. 24(2)?
Section 8
34The application judge held that the 2014 ITO did not disclose reasonable grounds to believe that information about the murder would be found at the respondent’s residence. She found that some grounds specified in the warrant relied on dated information and that others were either open to competing inferences or did not rise above reasonable grounds to suspect. She held further that the 2014 ITO was deficient in establishing that the affiant had a subjective belief that the items he described would be located at the respondent’s residence. The 2016 ITO included information from the 2014 ITO, as well as information obtained from the execution of the 2014 general warrant. The 2016 ITO also included additional information, including the discovery of blood in the respondent’s truck and the bullet hole and blood in his garage. However, the application judge held that once the information obtained from the 2014 general warrant was excised, there were insufficient grounds to issue the 2016 search warrant, as none of the additional information was cited by the affiant as augmenting the grounds to believe that the items sought would be at the respondent’s residence.
35The Crown submits that whether the warrants in this case could have issued is a question of law for which there can be only one right answer, and that the application judge got it wrong. It submits that both ITOs contained the subjective and objective grounds necessary to support issuance, and that the application judge’s reasons fail to demonstrate the proper application of the test for warrant review. The Crown submits that because the 2014 ITO provided a reasonable basis for the conclusion that the issuing justice could have issued the warrant, the 2014 search it authorized did not infringe the respondent’s s. 8 rights, nor did the subsequent 2016 search, which relied substantially on observations from the 2014 search.
36I disagree. It was evident that there were gaps in the information available to the police, which the 2016 affiant attempted to fill by including the expert opinion of forensic psychiatrist Dr. Collins, who was asked to provide an opinion on whether the respondent would still be in possession of “souvenirs” belonging to Collison. Dr. Collins submitted that if the respondent was responsible for the murder of Collison, then he “would be regarded as a serial killer.” Dr. Collins opined that, “It is within the realm of possibility that [the respondent] still possess[ed] personal items that belong to COLLISON, or other alleged victims”, in addition to news items, journals or books relating to the crimes or serial killers. The 2016 ITO, and success of the warrant application, clearly hinged on this evidence, which was premised on: 1) the respondent being a serial killer; and 2) the probability that a serial killer would keep “souvenirs” of his murders. The conclusion the affiant was attempting to have the issuing justice draw – that the respondent was likely to have kept evidence of Collison’s murder (and of other murders) – depended on both of these being established. The Crown argues that several other factors supplemented the expert’s opinion, such that the 2016 ITO, taken and read as a whole, established a credibly-based probability that evidence of Collison’s murder would be found at the respondent’s home. This included the fact that the respondent took Collison’s truck and trailer and lied to the police about it; displayed an interest in Collison’s disappearance; and was fascinated by the habits of serial killers, in the 1980s.
37However, the 2016 ITO did not give rise to reasonable and probable grounds to believe that the respondent was guilty of any other murder, or that serial killers would probably keep “souvenirs” of their murders. When one considers what the expert was asked to provide an opinion on – whether a suspect in the disappearance and death of Collison would still be in possession of some of Collison’s items – all the expert could say is that it was “within the realm of possibility”. The additional factors relied on by the Crown do not give rise to reasonable and probable grounds to believe that the respondent kept “souvenirs” of Collison’s murder, given that the evidence indicated only that he had a recent copy of a local newspaper, which, as the application judge recognized, was not unusual, and that the respondent sold Collison’s truck and trailer.
38An appellate court owes deference to the findings of a reviewing judge in their assessment of the record as amplified on review, and to their disposition of a s. 8 application. Absent an error of law, a misapprehension of evidence, or a failure to consider relevant evidence, an appellate court should decline to interfere with a reviewing judge’s decision: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 89.
39I see no basis to interfere with the application judge’s decision on the s. 8 Charter application.
Section 24(2)
40In the alternative, the Crown argues that the trial judge committed reversible errors in her assessment of the first Grant factor – the seriousness of the state’s Charter-infringing conduct – and that the map should not have been excluded. The Crown submits that the trial judge failed to follow the approach mandated by this court in R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 761, which held that unless a warrant was obtained through “false or deliberately misleading information”; the drafting of the ITO “subverted the warrant process”; or the ITO was otherwise misleading, the warrant process “tells in favour of admitting the evidence”. In Rocha, this court said that the proper approach is to look at the ITO and consider whether it is misleading, and, if so, to determine where it lies on the continuum, from inadvertence to the intentional use of misleading information. Applying that standard to this case, the warrant process should have, in the Crown’s view, weighed in favour of admission. The Crown points out that the police applied for and obtained warrants for both searches of the respondent’s residence; that the affiant made full and frank disclosure; and that there has been no suggestion that the affiant was misleading.
41An application judge’s decision to exclude evidence under s. 24(2) is entitled to deference. In the absence of an error of law, a misapprehension of evidence, a failure to consider a relevant factor, or an unreasonable finding, this court should not interfere: R. v. Muddei, 2021 ONCA 200, 155 O.R. (3d) 271, at para. 74. In this case, the application judge noted that the breach was rooted in the insufficiency of the ITO; cited this court’s guidance in Rocha that trial judges should determine whether the ITO is misleading and, if it is, to situate it on the spectrum of conduct; and she considered where to place the breach on that spectrum. The application judge held that the breach was neither the product of a drafting error, nor a decision made quickly in light of public safety issues. Given “the global deficiency in the grounds set out in the ITO”, the police did not act in good faith, and the state conduct was serious. The application judge did not misapply Rocha and her findings were well supported by the record. The application judge found that the ITO was poorly organized and strewn with errors, and contained expert opinion that relied on a police assertion that the applicant kept souvenirs in the past, without including evidence to support that assertion. In addition, the police “souvenir” theory was contradicted by the fact that a search warrant was executed on the respondent’s home in 1987 – after he, on the Crown’s theory, murdered other people – which “turned up nothing of evidentiary value”. I therefore see no reason to interfere with the application judge’s conclusion.
42Further, to succeed on appeal, the Crown must establish that any error had a material bearing on the acquittal: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14. Put another way, the Crown must satisfy this court, with a reasonable degree of certainty, that the outcome may well have been affected by the error: Graveline, at para. 15, citing R. v. Morin, [1988] 2 S.C.R. 345, at p. 374. This is to be assessed “in the concrete reality of the case”, and not on an abstract possibility: Graveline, at para. 14. This point is particularly important as it relates to the X-marked map. The parties on appeal agree that trial counsel discussed how the map might be presented to the jury, and that if the map was admitted, the trial Crown would have sought to call evidence to identify the “X” marking at the location proximate to Collison’s body, but likely would not have sought to lead evidence identifying the other “X” markings. That being the case, the respondent argues that any error in excluding the map would not be material to the verdict. The respondent characterizes the issue in this way at para. 83 of his factum:
Here, the two-page “map” includes 54 circled “X” markings, overlaid on what is arguably a map of the area around the Respondent’s home. One of the X’s arguably corresponds with the area in which Collison’s remains were discovered…. But absent evidence about the meaning of the other 53 markings, it is difficult to see how the jury could have legitimately used this evidence to draw any meaningful inferences about the Respondent’s guilt. Collison’s remains were found close to the Respondent’s home, and there are numerous “X” marks all around this area. Since the jury would have been precluded from inferring that this was a map marking various crime scenes, it is difficult to conceive what they could have legitimately understood the single relevant “X” to mean. At its highest, this was another wisp of ambiguous circumstantial evidence in an already weak circumstantial case. It’s likely impact is, at best, unclear.
43I agree. As such, there is no merit to this ground of appeal, and I would accordingly reject it.
C) Did the application judge err by excluding evidence under the hearsay rule?
44The application judge concluded that all of Collison’s statements to Smith were inadmissible under the state of mind exception to the hearsay rule, as they were made under “circumstances of suspicion”, given Collison’s schizophrenia and disordered thinking. She then held that, if she was incorrect in her conclusion on the state of mind exception, this was a “rare” case where evidence that would otherwise be admissible under a traditional hearsay exception should be excluded if it fails to meet the requirements of necessity and reliability, relying on this court’s decision in R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241. She considered whether the statements were admissible as a principled exception to the hearsay rule. She found that while the second statement – that Collison said the appellant did not want him around anymore – was admissible under the principled exception, the other statements were not, as they were insufficiently reliable, given Collison’s mental health issues and the lack of corroborative evidence.
45While careful to not perpetuate stereotypes, she found that Collison’s ongoing mental health issues, including the “very live possibility, if not the conclusion”, that Collison suffered from schizophrenia; and the testimony of family and friends that Collison had made multiple incredible claims that different people wanted to harm him, gave rise to a suspicion that his statements were not reliable, and thus were made in “circumstances of suspicion”. This court has recognized that “circumstances of suspicion” may include concerns about the declarant’s sincerity and concerns about the declarant’s misperception: see R. v. T.J., 2014 ONCA 321, 308 C.C.C. (3d) 307, at para. 33. The admissibility of hearsay evidence is a question of law, but the factual findings underpinning that determination are entitled to deference: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 31. I see no reason to interfere.
46Further, the application judge found that, in the event she was wrong in her conclusion on the state of mind exception, she would have still excluded the first and third statements under the principled approach. She found that, unlike the second statement, which was corroborated by the evidence of a third party, the first and third statements were not corroborated, and were unreliable given Collison’s mental health issues. I see no reason to interfere with that conclusion either.
47I would therefore reject this ground of appeal.
Conclusion
48For these reasons, I would dismiss the appeal.
Released: August 15, 2022
“G.R.S.” “J. George J.A.” “I agree. G.R. Strathy C.J.O.” “I agree. S. Coroza J.A.”
