DATE: 20020305 DOCKET: C28618

COURT OF APPEAL FOR ONTARIO

LABROSSE, ABELLA and CHARRON JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Eric Siebenmorgen, for the respondent

Respondent

• and -

LEO HENRI PILOTTE

James Lockyer and P. Andras Schreck, for the appellant

Appellant

Heard: December 11, 2001

On appeal from the conviction imposed by Justice Ian M. Gordon, sitting with a jury, dated October 12, 1997.

CHARRON J.A.:

I. Overview

[1] Following his trial by judge and jury, the appellant was convicted of the first degree murder of Gerard Leveille and offering an indignity to his remains. He was sentenced to life imprisonment on the first count and two years concurrent on the second count. He appeals against conviction.

[2] The main ground of appeal relates to a pre-trial application by the defence for disclosure of all contacts between one of the Crown witnesses and the Royal Canadian Mounted Police. The appellant argues that he was improperly excluded from his trial as a result of the trial judge meeting in private with counsel for the federal Crown and the investigating officer during the course of adjudicating on this application to review whether the informer privilege extended to certain materials. He submits that this private meeting contravened the express requirement under s. 650 of the Criminal Code that he be present during the whole of his trial, and that a new trial should be ordered on this ground alone.

[3] The appellant also relies on five other grounds, all related to the trial judge’s instructions to the jury. The alleged errors can be divided into three categories. First, the appellant submits that the trial judge erred in failing to instruct the jury on the “other suspect” defence. Second, the appellant contends that the trial judge made three errors in cautioning the jury against accepting the evidence of unsavoury witnesses: he improperly exempted one Crown witness from the unsavoury witness category; he improperly extended the warning to two defence witnesses; and he erred in his instructions on what could constitute potentially confirmatory evidence of the witnesses’ testimony. Finally, the appellant submits that the trial judge erred in instructing the jury to engage in a “two-step” process in deciding whether the Crown had proven its case beyond a reasonable doubt in a manner that could potentially exclude relevant evidence from their consideration.

[4] I would not give effect to the appellant’s main ground of appeal. It is my view that the impugned meeting did not take place during the course of the appellant’s trial. Rather, it was part of a separate proceeding brought by the federal Crown under s. 37 of the Canada Evidence Act, R.S.C. 1985, c. C-5. In any event, the procedure that is now objected to on appeal was adopted with the consent of both parties and following an express waiver of the appellant’s right to be present during that part of the proceeding. In these circumstances, there was no contravention of s. 650 of the Criminal Code. With respect to the remaining grounds of appeal, it is my view that the trial judge’s instructions, considered as a whole and in the context of the evidence at trial, were adequate and reflected no reversible error. Consequently, I would dismiss the appeal.

II. The Facts

[5] The deceased Gerald Leveille was a smuggler of drugs, steroids, alcohol and cigarettes, a business he was involved in with the appellant and a number of other persons who testified for the Crown and defence at trial. He was last seen alive in the early morning hours of February 20, 1995 in Sudbury, Ontario. On February 16, 1996, as a result of information provided by Cecil Russell (the appellant’s supplier of steroids) in exchange for favourable treatment by prosecution authorities, the deceased’s burnt remains were found in an abandoned silo adjacent to Russell’s residential property in Oshawa, Ontario.

[6] It was the Crown’s theory at trial that the appellant had a motive to kill Leveille for a number of reasons: Leveille was encroaching on the appellant’s sales territory; he was making false claims that the appellant owed him money; he was threatening to destroy the appellant’s racehorses; and finally, the appellant suspected that Leveille was involved in a break-in and theft at the appellant’s home near Sudbury on December 29, 1994. It was the Crown’s further theory that the appellant killed Leveille shortly after Leveille was last seen alive, cut up the body, transported the remains to Russell’s property and burned the body in the silo.

[7] In support of its theory, the Crown relied on the evidence of several witnesses who testified about the appellant’s numerous grievances with Leveille and his plan to get rid of him. This evidence included a recording of a conversation between the appellant and his cousin Joel Pilotte. The Crown also relied on the evidence of Cecil Russell who testified that the appellant brought Leveille’s body to his property in Oshawa, burnt it in the silo, later returned to check the silo, retrieved some of the remaining bones, and disposed of them in a garbage dumpster. Russell also testified that the appellant admitted to killing Leveille. The Crown further relied on the appellant’s admissions to two other witnesses, Joel Pilotte and Martin LaChapelle. Finally, the Crown relied on various pieces of evidence to confirm the testimony of the witnesses Cecil Russell, Martin LaChapelle, and Joel Pilotte; evidence of the appellant’s attempts to dissuade the deceased’s wife from calling the police; and the appellant’s after-the-fact conduct.

[8] The appellant did not testify at his trial. However, the defence called a number of witnesses to challenge the credibility of the Crown witnesses. It was the defence theory at trial that Russell had himself killed Leveille and disposed of his body in the silo or was involved in the murder, and that he was lying about the appellant’s participation in the crime to protect himself. It was the further theory of the defence that none of the three Crown witnesses who testified as to admissions made by the appellant were worthy of belief. Finally, it was the defence theory that the Crown’s case left too many matters unexplained to constitute proof beyond a reasonable doubt.

[9] I will review other relevant items of evidence in the course of dealing with each ground of appeal.

[10] I now turn to the appellant’s main ground of appeal.

III. The Pre-Trial Application for Disclosure

a) The subject-matter of the application for disclosure

[11] As indicated earlier, this ground of appeal relates to a pre-trial application by the defence for disclosure of all contacts between one of the Crown witnesses and the RCMP in relation to an unrelated investigation. The witness in question was the cousin of the appellant, Joel Pilotte. His involvement in the murder investigation was as follows.

[12] Joel Pilotte had lived with the appellant and his wife for a period of time ending in the fall of 1994. Joel Pilotte testified that on December 31, 1994, the appellant came to his residence and accused him of breaking and entering into his home. Joel Pilotte denied responsibility. The next day, the appellant returned to his residence and questioned him again. He suspected him as well as a number of other people including Leveille. Later that day, the appellant told Joel Pilotte that he had now concluded that Leveille had done the break and enter. The appellant was also upset with Leveille because he had been telling people that the appellant owed him money. The appellant told Joel Pilotte that he wanted to get rid of Leveille. He asked Joel Pilotte to help him kill Leveille by whacking him over the head. Joel Pilotte was reluctant. The appellant repeated his plan to kill Leveille on the morning of January 2, 1995. During this period of time, Joel Pilotte was involved in an investigation by the RCMP into a large scale conspiracy to traffic in steroids involving the appellant and others. Later on January 2, Joel advised the RCMP of his discussions with the appellant. This information was turned over to the Sudbury Regional Police.

[13] On January 4, 1995, Joel Pilotte was fitted with a listening device by the police. He then met with the appellant. According to Pilotte, the appellant repeated his plan to kill Leveille some time later that week. He planned to hit Leveille on the head with an axe handle, put his body in a snow bank until it froze, and then cut it up with a chainsaw. Joel Pilotte then met with the police. It was discovered that the listening device had malfunctioned and that none of the conversation had been recorded. However, a statement was obtained from Joel Pilotte before he was advised of the equipment failure.

[14] On January 5, 1995, Joel Pilotte was fitted with different equipment and again had a conversation with the appellant. The appellant repeated his intention to get rid of Leveille. Amongst many other comments, he told Joel that he had hired a 6’6”, 300 lb. Jamaican man to kill Leveille. After receiving the recording of this conversation, the police decided neither to arrest the appellant nor to warn Leveille. The police were concerned about Joel Pilotte’s safety and about exposing an ongoing RCMP investigation of the appellant. Also, the police were concerned that the plot changed in each conversation and the last conversation bordered on the bizarre. However, surveillance teams were dispatched to follow the appellant and Leveille for approximately two weeks; nothing materialized during that time.

[15] During approximately the same time period as the Sudbury Regional Police Force investigated the appellant’s threats against Leveille, as reported by Joel Pilotte, the RCMP continued their investigation into the conspiracy to traffic in steroids. Charges relating to the conspiracy were laid against the appellant and Cecil Russell. At the time of the appellant’s trial on this murder charge, those charges had been dealt with.

[16] Joel Pilotte eventually testified about these conversations at the appellant’s trial. He also testified that the appellant later described to him how he had killed Leveille.

b) The proceedings before the applications judge

[17] Given Joel Pilotte’s role in the murder investigation and his concurrent involvement in the RCMP investigation, counsel for the appellant brought an application on September 17, 1997 for disclosure of all contacts between Joel Pilotte and the RCMP. The appellant’s trial was scheduled to commence on September 22, 1997 and the application was brought in the Ontario Court (General Division) before Gordon J., who ultimately presided at the appellant’s trial.

[18] In the application for disclosure, as evidenced by the written Notice of Application, the defence was seeking a multitude of information from the Crown, both provincial and federal, and from all police forces, municipal, provincial and federal. However, the hearing before the applications judge and the appeal before this court related solely to the material in the possession of the RCMP that concerned Joel Pilotte. This material was not in the possession of counsel for the provincial Attorney General who had carriage of the prosecution and the application was therefore defended by the prosecution on the basis that all material in its possession had been disclosed. Counsel for the Attorney General of Canada appeared on the application and objected to the production of the material on the ground of informer privilege.

[19] From the outset, counsel for the appellant stated that it was his understanding that some of the material in question would prove to be privileged and that he expected the applications judge to rule on what was privileged and what was not. He made it clear to the court that his client was only seeking production of the material to which the privilege did not extend. The question became: what procedure should be followed?

[20] The Federal Crown took the position that it came to these proceedings as a third party, and that consequently the defence had to meet the likely relevance test set out in R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411before the material could be produced for inspection by the court. Alternatively, the Federal Crown opposed the disclosure of the information under s. 37 of the Canada Evidence Act on the grounds of public interest, namely informer privilege. It was agreed that the applications judge would rule on the “third party” argument first before considering s. 37.

[21] Although the applications judge’s ruling on this first argument is not the subject-matter of this appeal, it is useful to describe that part of the proceedings in order to understand the context of the later inquiry into privilege.

[22] On the first argument, the provincial Crown joined the Federal Crown in characterizing the material in question as “third party records” and in opposing its disclosure as such. It was argued that the appellant’s right to disclosure extended only to the fruits of the investigation, and not to matters that went beyond it. Since full disclosure of all matters relevant to the murder investigation had been made, it was submitted that the defence did not have a further right to disclosure of matters not in the possession of the prosecution and relating to other investigations, without first meeting the threshold test of likely relevance set out in O’Connor. It was submitted that the threshold test could not be met by the simple assertion that the credibility of Joel Pilotte would be in issue at the trial.

[23] Counsel for the appellant argued that the O’Connor test had no application where the material in question was in the hands of the state as a prosecuting authority. He argued that, contrary to O’Connor and like cases, there was no competing privacy interest to be weighed in this case. Hence, he argued that the test of relevance set out in R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326 was the governing test and that relevance extended to matters related to credibility. Counsel reiterated that disclosure was only sought with respect to that part of the material, if any, that was not privileged.

[24] The applications judge rejected the argument of counsel for the Federal Crown and the provincial Crown. First, he noted that the Crown had made full and complete disclosure with respect to the homicide investigation, including information from the parallel investigation into charges of conspiracy to traffic in steroids that involved the appellant. He also noted that Joel Pilotte was expected to give significant evidence incriminating the appellant at the trial and that his credibility would be in issue. He then ruled as follows:

The defence now asks that a complete record of Mr. Joel Pilotte’s contacts with the R.C.M.P. be disclosed. Such information would not be within the parameters of the steroid conspiracy disclosure. As a preliminary matter the Federal Crown says the application should be an O’Connor Application for production as opposed to a Stinchcombe Application for disclosure. …

… The higher standard of likely relevance in O’Connor type applications flows, in my view, from special individual rights of persons to their medical, psychiatric, therapy and like information, along with a consideration in sexual cases of a necessity of not to discourage complainant [sic]. These can be balanced in an O’Connor application against the accused’s rights to full answer and defence.

I have difficulty finding the comparable rights for balance here against the right to full answer and defence. The fruits of any investigation surely do belong not to the police or to any specific body, and if relevant should be disclosed.

[25] The applications judge concluded that in the circumstances of this case, the Federal Crown could be subject to the Stinchcombe application for disclosure and that it could appropriately protect its position by denying relevance or claiming privilege. He further held that relevance on the basis of Stinchcombe had been established. The sole remaining question to be determined was whether the material was privileged. No appeal is taken from this ruling.

[26] Following the applications judge’s ruling, counsel for the Federal Crown immediately reiterated that he was invoking s. 37 of the Canada Evidence Act and sought a brief adjournment to consider what procedure should be followed. After some discussion with counsel, the applications judge adjourned the matter to the following afternoon. Defence counsel stated as follows:

Defence counsel: Thank you Your Honour. I can put on record that my client waives his right to be here for those proceedings tomorrow afternoon. It would be an inconvenience with scheduling being uncertain and he is content that he need not be here for those matters.

[27] Both the applications judge and Crown counsel then expressed reservations about the appellant not attending. Counsel for the appellant therefore agreed to have his client attend, commenting as follows:

Defence counsel: I am sure he wouldn't mind being here Your Honour it breaks the boredom, just that he and I were of the view that it wasn't necessary and that it wasn't worth putting people to the trouble on this stage of these motions, but if the Court feels that there is a risk of some impropriety then please let the Court follow it's inclination.

[28] The court then adjourned to the following afternoon on the understanding that the appellant would be in attendance.

[29] On September 18, 1997, the hearing of the application resumed in open court in the presence of the appellant, his counsel, and both Federal and provincial Crown counsel. Counsel for the Federal Crown advised the court that he had divided the materials into three piles: the first pile did not relate to Joel Pilotte; the second pile were materials over which the Federal Crown claimed privilege; the third pile were materials that the Crown was prepared to disclose. The Federal Crown then sought an opportunity to elaborate on the question of privilege in chambers in the sole presence of the judge and the investigating officer. The applications judge sought the input of counsel for the provincial Crown and counsel for the appellant on the suggested procedure. The following exchange took place:

[Provincial Crown]: I am in agreement Your Honour. Quite frankly I think at this point I am not even in the picture and I do not think my agreement in any way would affect but, I have been explained what is understood to be the procedure which is in-camera for rather obvious reasons and I tend to agree with it.

THE COURT: Defence counsel.

Defence counsel: I take no issue.

THE COURT: Sorry, you make no comment or you take no issue with the procedure?

Defence counsel: Frankly, I take no issue with the procedure no. Your Honour I recognize it that the balancing has to be done, that has to be done by the Court and in the circumstances I have no real objection to the thought that it should be done in-camera.

THE COURT: Then what about representation? I would gather that [the Federal Crown’s] position is that he and the officer attend in Chambers with material. Is that your position?

THE COURT: What is your input on that?

Defence counsel: If the Court is content with its role of reviewing the material carefully to determine what is privileged and what isn't, then I am prepared to trust the Court even without my client or I being there to take part in the conversation. If the Court prefers to have me there, then I would be pleased to attend. If the Court wants, or prefers to have me there and to ask me to make undertakings as to sharing what I learn there with others and to limit me as to what I can do I will abide by the Court's direction on that. I don't intend to be difficult on this issue Your Honour. I am prepared to be of such assistance to you and my client as you think is right given the nature of the material that you are going to learn about.

THE COURT: You are content with the procedure whereby [counsel for the Federal Crown] and the officer attend in Chambers with me with the material so that I may hear what their position is on any one or more of the four elements set out in Parmar?

THE COURT: And I would make a decision as to whether or not it is privileged

Defence counsel: Yes. And I would assume that anything that you direct is not privileged I will get copies of quickly. Anything you direct is privileged I won't see and that will be the end of it.

THE COURT: Would it seem appropriate to determine firstly, whether it had relevance, and then to determine whether or not it is privileged?

Defence counsel: I guess on the issue of relevance I might have comment. Because Your Honour's perception of what is relevant is of course limited by your knowledge of the facts.

THE COURT: Yes.

Defence counsel: And so, on that issue I might truly have comment as to whether this was something that I might reasonably make use of in a way that the trial judge may not know before the opening of the trial, but I.

THE COURT: It is always a difficult situation, O'Connor applications put judges in that position all the time…

THE COURT: …to find whether or not something is relevant without knowing entirely what the defence is. But it is a function that we do carry out. I understand your position. I will determine first of all privilege and will retire to Chambers [counsel for the Federal Crown].

[30] The applications judge then went to discuss the issue of recording the private meeting and expressed the following view:

I think I will decline then having a record made. I see nothing in the cases that would require such to be made and, in fact, a record seems to, even if sealed, seems to expose the Administration of Justice to disclosure of the very items which privilege seeks to avoid disclosing.

[31] He then sought the input of counsel on this issue. Counsel for the appellant was content that whatever material was adjudged to be privileged be sealed so that it would be available for appellate review if necessary. The applications judge then retired to his chambers with the Federal Crown and the investigating officer, commenting on the record that he would be asking “for assistance [from them] simply for the purpose of organization and presentation of the material since it appears to be quite extensive.”

[32] The applications judge later returned in open court to deliver his ruling. In his reasons, he referred to the procedure employed as that that “paralleled” the procedure adopted by Watt J. in R. v. Parmar (1987), 1987 6867 (ON SC), 34 C.C.C. (3d) 260 (Ont. H.C.J.). He then described the various files he had reviewed, according to date and file number. He ruled, with respect to some of the materials, that no further disclosure was required because it had already been made and, with respect to the balance of the material, that it was privileged. Counsel for the appellant indicated that he was “content there was nothing further to press on those items at this time.”

b) The position of the parties on appeal

[33] The appellant does not take issue with the applications judge’s ruling that the material that formed the subject-matter of the application was privileged and not subject to disclosure. Therefore, he does not seek an order for disclosure. Rather, he contends that the hearing of the application for disclosure formed part of his trial, and that the applications judge committed an incurable jurisdictional error in meeting privately with the Federal Crown and the investigating officer to determine whether the material was privileged. The appellant relies on s. 650 of the Criminal Code and on the fundamental principles of the criminal justice system that a person charged with an offence is entitled to be present throughout his trial and that trials be conducted in public.

[34] Since the appeal raises no issue as to the correctness of the applications judge’s ruling on the question of privilege, the Federal Crown, with the consent of the appellant and leave of the court, did not participate in the appeal.

[35] The Crown takes the position that the meeting in chambers did not result in jurisdictional error vitiating the appellant’s trial. The Crown’s position is threefold. First, it is submitted that the meeting was held in the context of a proceeding pursuant to s. 37 of the Canada Evidence Act and that it did not form part of the trial. Consequently, s. 650 of the Criminal Code is of no application. Second, it is submitted that, in any event, the procedure was consented to by the appellant who, through counsel, expressly waived any right to be present. Finally, it is submitted that if there was a procedural error, the curative provision in s. 686(1)(b)(iv) may be safely invoked with respect to this issue.

c) Analysis

[36] In my view, the Crown’s position is correct that the in camera meeting which forms the subject-matter of this ground of appeal took place during the course of a separate and distinct proceeding under s. 37 of the Canada Evidence Act. Indeed, as I will explain further, the appellant’s application for disclosure was effectively rendered moot as a result of the ruling on the Federal Crown’s s. 37 application.

[37] It is important to consider s. 37 of the Canada Evidence Act. The full text of s. 37 is appended to these reasons. I will review the provision and its application to the proceedings in this case.

[38] Subsection 37(1) provides that “a minister of the Crown in right of Canada or other person interested may object to the disclosure of information before a court… with jurisdiction to compel the production of information…on the grounds of a specified public interest.” The objection may be made “by certifying orally or in writing to the court” that the information should not be disclosed on such grounds. There is no issue that the Federal Crown did invoke s. 37 in this case within the meaning of s. 37(1). The specified public interest was identified generally as “privilege”, but, from the material that was filed and the nature of the information in question, the argument of counsel before the applications judge and on appeal, it would appear to be common ground between the parties that the public interest in question was the informer privilege. In any event, no appeal is taken from the applications judge’s ultimate finding that the information was privileged and it is therefore not necessary to inquire into the precise nature or scope of the claim for privilege that was ultimately upheld on the application.

[39] When s. 37 is invoked, it gives rise to a separate and distinct proceeding in a specified court, the determination of which is subject to an independent right of appeal. Subsections 37(2) and (3) provide that the objection must be determined by a judge of the superior court of the province or by a judge of the Trial Division of the Federal Court. Hence, if the objection is made during the course of a proceeding before a superior court, as in this case, the presiding justice may simply proceed with the s. 37 inquiry and make a determination under s. 37(2). If however, the objection is made during the course of a preliminary inquiry or a trial before a judge of the provincial court, an application must be brought before one of the two designated courts within ten days after the objection is made, or within such further time as ordered by that court: s. 37(3) and (4). The separate nature of the inquiry becomes self-evident when one reads the cases that have considered s. 37: see, for example, R. v. Richards (1997), 1997 3364 (ON CA), 115 C.C.C. (3d) 377 (Ont. C.A.); Re Regina and Gray et al. (1993), 1993 14670 (BC CA), 79 C.C.C. (3d) 332 (B.C.C.A.); R. v. Archer (1989 ), 1989 ABCA 38, 47 C.C.C. (3d) 567 (Alta C.A.).

[40] The separate nature of the inquiry is further apparent when one considers the appeal provisions contained in s. 37. A right of appeal lies from the determination of the objection, either to the Federal Court of Appeal or to the provincial Court of Appeal, depending on the court that heard the matter: s. 37(5). Any such appeal must be brought within ten days from the date that the objection is determined, or within such time as ordered by the appeal court. A further right to apply for leave to appeal to the Supreme Court of Canada is provided under s. 37(7).

[41] In my view, the separate nature of the s. 37 application is not affected by the fact that it is heard before the same superior court judge whose ruling prompted the invocation of s. 37, as was the situation here. That is not to say, however, that every time an issue of Crown privilege arises during the course of a proceeding that the provisions of s. 37 automatically govern. Section 37 does not oust the jurisdiction of a preliminary hearing judge, a provincial trial court judge, or a superior trial court judge to make evidentiary rulings. On this point, this court in R. v. Richards, supra respectfully disagreed with the contrary view expressed in R. v. Meuckon (1990), 1990 10991 (BC CA), 57 C.C.C. (3d) 193 (B.C.C.A.) at 199.

[42] In R. v. Richards, during the course of a preliminary inquiry the Crown objected to the disclosure of information about an investigative method used by an undercover officer, on the ground of privilege. Instead of determining the issue of privilege, the preliminary court judge adjourned the inquiry to allow the Crown to bring an application under s. 37 of the Canada Evidence Act before a superior court judge. The application was brought and determined by a superior court judge and an appeal was taken from his order. This court upheld the superior court judge’s order but also commented on the jurisdiction of the preliminary inquiry judge to determine the issue of privilege:

[6] It may be argued that s. 37(3) vests the superior court with exclusive jurisdiction to determine a public interest claim. It would appear that the section was so interpreted in R. v. Meuckon (1990), 1990 10991 (BC CA), 57 C.C.C. (3d) 193 (B.C.C.A.) at 199, although the jurisdictional point was not in issue on that appeal.

[7] We do not read s. 37(3) as making the superior court the only court competent to rule on a claim of public interest privilege. Section 37 does not create or define the public interest privilege. That privilege is a creature of the common law rules of evidence. Section 37 provides a mechanism for the resolution of a privilege claim. Where the Crown invokes s. 37, only a court as defined in s. 37(3) may settle that claim: Canada (Attorney-General) v. Sander (1994), 1994 1658 (BC CA), 90 C.C.C. (3d) 41 (B.C.C.A.) at 46. Where, however, the issue arises in the course of a preliminary inquiry, the presiding judge is called upon to make an evidentiary ruling. To determine the admissibility of the evidence, the judge must decide whether the public interest privilege bars disclosure of the information. Section 37 does not oust the preliminary inquiry judge’s jurisdiction to make evidentiary rulings. Instead, the section creates a separate means whereby the public interest privilege may be asserted even in the face of an evidentiary ruling at the preliminary inquiry which requires disclosure.

[8] Where a claim of public interest privilege arises at the preliminary inquiry, the Crown should normally seek a ruling as to the applicability of the privilege before proceeding under s. 37 of the Canada Evidence Act. The judge will decide whether the common law privilege operates to render the requested information inadmissible at the preliminary inquiry. If the judge holds that the privilege applies, there will be no need for a s. 37 application. If the judge orders disclosure, the Crown can commence a s. 37 application objecting to the disclosure required by the ruling. The s. 37 application is a separate proceeding but may, in some cases, amount to a reconsideration of the same material considered at the preliminary hearing.

[43] The same reasoning applies when an issue of public interest privilege arises during the course of a trial and, in my view, a like procedure should be followed. If an issue of public interest privilege arises during the course of a trial before a provincial trial court, the trial judge has the jurisdiction to make an evidentiary ruling, and should proceed to do so. If the judge upholds the privilege claim, as indicated in R. v. Richards, there will be no need for a s. 37 application and the trial can simply continue. Any party who is adversely affected by the ruling will have recourse to the usual right of appeal at the conclusion of the trial. On the other hand, if the trial court denies the privilege claim, the “minister of the Crown in right of Canada or other person interested” has the right to have the matter determined by a superior court by way of a s. 37 application. If an application is brought, the trial before the provincial court should nonetheless continue to the extent that it is possible to do so but, depending on the circumstances, the trial may have to be adjourned pending the final resolution of the s. 37 application.

[44] Likewise, if an issue of public interest privilege arises in a proceeding before a superior court judge, whether it be during the course of a pre-trial motion or a trial, the superior court judge has the jurisdiction to make the evidentiary ruling in that proceeding. Where the objection is made by a party to the proceeding, usually by the Crown prosecutor, an evidentiary ruling can simply be made as part of the same proceeding. Again here, if the privilege claim is upheld, there will be no need for a s. 37 application and the evidentiary ruling may be subject to appellate review in the usual course. If the privilege claim is denied, the Crown, if so advised, can still invoke s. 37 and seek a ruling from the same judge under s. 37(2). If this latter course of action is chosen, it would give rise to a separate right of appeal as described earlier under s. 37(5)and (7).

[45] Where the objection to the production of the information on the ground of a specified public interest is made by a person who is not a party to the proceeding before the court, the issue will necessarily have to be determined in a separate proceeding and s. 37 will govern. This is the situation that arose in this case. The objection was made, not by the Crown prosecutor in the proceeding against the appellant, but by a minister of the Attorney General of Canada. Gordon J., as a judge of superior court, had the jurisdiction to entertain the application and did so.

[46] Given the separate nature of a s. 37 inquiry, the Crown is correct in its contention that the proceeding did not form part of the trial. Hence, s. 650(1) of the Criminal Code, upon which the appellant relies, does not apply. It provides as follows:

650. (1) Subject to subsections (1.1) [video links] and (2), an accused other than a corporation shall be present in court during the whole of the accused’s trial.

(2) The court may

(b) permit the accused to be out of court during the whole or any part of his trial on such conditions as the court considers proper; …

[47] Of course, even if s. 650 does not extend to the s. 37 inquiry, the appellant nonetheless had the right to be heard on the Federal Crown’s s. 37 application and the question remains whether the procedure that was adopted violated the appellant’s rights in any way. The appellant undoubtedly had an interest in the proceeding. However, it is my view that the appellant was given a full opportunity to participate in the proceeding, that his views were heard through counsel, and that he expressly consented to the procedure that was followed, including the private meeting he now objects to on this appeal. I see no merit to the contention made in this court that defence counsel’s position at trial should be disregarded because it was made without a full appreciation of the rights of his client. There is no allegation of incompetency of trial counsel in this case and, indeed, the record would not support such an allegation.

[48] It is necessary on this point to deal with the appellant’s application to this court to introduce fresh evidence on the appeal. The proposed fresh evidence consists of a brief affidavit from the appellant’s trial counsel wherein he seeks to explain that he took no issue with the procedure that was followed on the s. 37 application because he thought that the private meeting suggested by Federal Crown counsel was the usual procedure in such matters, that it had been sanctioned by Watt J. in Parmar, and that he did not believe that he had any basis for objecting to it.

[49] In my view, this evidence is not admissible. The reasoning of this court in R. v. Henrich (1996), 1996 1391 (ON CA), 110 C.C.C. (3d) 533 (Ont. C.A.) is apposite to the appellant’s application to introduce fresh evidence. In R. v. Henrich, the appellant sought to introduce fresh evidence with respect to defence counsel’s decision not to raise the timing of the complaint in his cross-examination of the complainant. The proposed fresh evidence purported to establish that trial counsel would have raised the issue of timing had the trial judge not restricted the right to cross-examine the complainant on the recent complaint issue. This court refused to admit the evidence. In an addendum to its judgment on the appeal, the court stated as follows:

Looked at generally, fresh evidence is admissible under the authority of s. 683(1) of the Criminal Code which provides that fresh evidence may be received on an appeal when it is "in the interests of justice" to receive it. Typically fresh evidence relates to a factual determination made at trial and its admissibility is subject to the tests set out in Palmer and Palmer v. The Queen (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C).

The fresh evidence tendered in this case was not the Palmer variety of fresh evidence. It did not relate to a factual determination made at trial. It related to defence counsel's position at trial in the light of the trial judge's ruling, made early in the trial, with respect to defence counsel's right to cross-examine the complainant as to the timeliness of her complaints. In this case the fresh evidence falls generally in the category of fresh evidence referred to in case such as R.v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), R. v. Peterson (1996), 1996 874 (ON CA), 27 O.R. (3d) 739, 106 C.C.C. (3d) 64 (Ont. C.A.) and R. v. W. (W.) (1995), 1995 3505 (ON CA), 25 O.R. (3d) 161, 100 C.C.C. (3d) 225 (Ont. C.A.).

In our opinion, when the trial record is clear, there is no basis upon which to admit fresh evidence to explain or vary it. Here, as extensively outlined in our July 11, 1996 reasons, defence counsel made his position clear. In the circumstances, the appellant was not prejudiced by the trial judge's ruling in respect of defence counsel's right to cross-examine the complainant on the broad issue of why her disclosure and complaint were delayed.

We were thus of the view, after having reviewed the fresh evidence and heard counsel's submission with respect to it, that it would not be in the interests of justice to admit the fresh evidence.

[50] In my view, the record is equally clear in this case that counsel, on his client’s behalf, consented to the procedure that was adopted and hence there is no basis for the admission of trial counsel’s affidavit. It would not be in the interest of justice to receive this kind of evidence that simply purports to explain the thought process of counsel that led to a decision made at trial. It is of paramount importance, in the interest of certainty and finality of criminal proceedings, that the record speak for itself and that an appellate court not embark upon such an inquiry.

[51] For these reasons, I would dismiss the appellant’s application to introduce fresh evidence.

[52] In the circumstances of this case, it was open to the applications judge to adopt the procedure that was suggested to him and consented to by all interested parties on the s. 37 application. There is no hard and fast rule on what procedure will be appropriate on this kind of application. Further, given the wide range of information that can form the subject-matter of a s. 37 inquiry, it would not be advisable for this court to establish any such rule. The British Columbia Court of Appeal in Meuckon, supra, recognized that the appropriate procedure to follow in reviewing the information would depend on the circumstances. The Court stated as follows (at 199-200):

If an objection is made, and the public interest is specified, then the trial judge may examine or hear the information in circumstances which he considers appropriate, including the absence of the parties, their counsel, and the public. Whether the trial judge does hear or examine the information, or whether he does not, the trial judge may then either uphold the claim of Crown privilege or order the disclosure of the information either with conditions or unconditionally.

[53] In this case, all counsel at trial and the applications judge relied on Watt J.’s judgment in R. v. Parmar and, as stated by the applications judge, an attempt was made to adopt a procedure that paralleled the one adopted by the court in that case. In R. v. Parmar, there was no s. 37 application but the issue to be determined by the court involved a similar need to preserve the secrecy of material with respect to which the Crown was claiming privilege. It may therefore be useful to review what was done by the court in Parmar because, in my view, it does provide useful guidance.

[54] The accused Parmar, against whom the Crown intended to introduce evidence of intercepted private communications, applied to the trial judge for an order pursuant to s.178.14 of the Criminal Code giving him access to the sealed packet that contained the material used on the application for the relevant authorization to intercept communications. In his reasons, Watt J. dealt mainly with the bases upon which such an order can be made. He concluded that the order could and should be made. He further held that it did not follow, however, that the accused was entitled to disclosure of all the material in the sealed packet and that this material was subject to judicial editing to ensure the disclosure was not inimical to the best interests of the administration of justice. Amongst other issues, it was necessary to determine if some of the material had to be edited to maintain the secrecy of the identities of confidential police informants, an issue akin to the one that arose in this case. For obvious reasons, the determination of this issue cannot be made in a completely open fashion in a public court. Watt J. therefore described the procedure that would be adopted.

[55] First, Watt J. noted that the initial part of the application, with the concurrence of counsel, was heard in camera, in the presence of both counsel, but in the absence of the accused:

(2) The initial application

The initial application in the case at bar, with concurrence of counsel, was heard in camera in the absence of the applicants. Counsel, both prosecuting and defending, were present. The application was, in all other respects, dealt with in accordance with the procedure followed in the province on a motion in criminal proceedings.

[56] Second, Watt J. described how he would, as a preliminary step, edit the material by himself to delete any privileged information from the material to be disclosed:

...I intend, initially, to myself review the contents of the affidavit filed in support of the application for authorization. In this case, Crown counsel has indicated, without elaboration, that there are certain matters which he wishes deleted from the disclosure copy and generally articulated his grounds of concern. In the absence of such indication, I would conceive it my duty, in any event, to review the contents of the original affidavit thereby to ensure that disclosure as is made is not inimical to the best interests of the administration of justice.

[57] Following this preliminary editing, the following procedure was to be followed:

At the conclusion of this initial phase of the editing process, I shall disclose to prosecuting counsel the affidavit, as edited. Prosecuting counsel shall then indicate his position with respect to disclosure of this affidavit as edited. In the event that he is content with the nature and extent of such editing, he shall be provided with a copy of the affidavit as edited, which shall serve as the disclosure affidavit for defending counsel. In the event that Crown counsel requests that further editing be done, we shall then proceed to the final stage of the editing process.

[58] If necessary, there would follow a final stage of editing:

In the event that judicial editing fails to produce an edited affidavit satisfactory for disclosure purposes in the view of Crown counsel, it is my view that, the final editing process ought to be undertaken in open court, in the presence of the applicants and their counsel. Crown counsel may there make submissions, in such guarded terms as he is advised, as to what further editing ought to take place and basis therefor. It may well be difficult so to do without expressly or impliedly revealing something of that which it is sought to edit, but I am not persuaded, at this juncture, that it cannot be done. I shall then determine what further editing, if any, shall be done and thereby, the nature of the disclosure affidavit to be provided to applicants' counsel. It is unnecessary to add that applicants' counsel shall be at liberty to make submissions, in response to those of Crown counsel, as to the nature and extent of further editing, but will do so without benefit of the affidavit as then edited.

In my respectful view, it is necessary that at least the final stage of the editing process take place in the presence of the applicants. The result of such process affords the applicants the opportunity of acquiring first-hand knowledge of proceedings which may well affect the eventual outcome of their trial: see R. v. Hertrich, Stewart and Skinner (1982), 1982 3307 (ON CA), 67 C.C.C. (2d) 510, 137 D.L.R. (3d) 400 (Ont. C.A.); leave to appeal to the S.C.C. refused 45 N. R. 629n.

[59] The appellant in this case does not take issue with the notion that the applications judge could review the material in private. Indeed, if a review is to take place under s. 37, all the while preserving the secrecy of the information until a determination can be made, some form of privacy is required. The appellant submits, however, and correctly so, that the procedure followed by Watt J. in Parmar did not involve any private meeting between the judge, one of the counsel and a police officer as was done in this case. Hence, although the procedure was consented to in first instance, the appellant now takes issue with the fact that the federal Crown and the investigating officer took part in this private review of the material by the applications judge.

[60] In my view, and I express this view with the benefit of appellate hindsight, it would have been preferable if the private meeting had been recorded, or better still, if the required assistance had been provided to the applications judge in a manner that did not involve a private meeting. However, I find no reversible error in this case where the procedure was adopted with the express consent of all interested parties. Of necessity, there must be some flexibility on the procedure that should be followed on a s. 37 inquiry. The sensitivity of the material in question will often dictate how the inquiry should be conducted. Indeed, in this case, the applications judge’s decision not to record the meeting, a decision assented to by counsel for the appellant, was informed out of that very concern for preserving the secrecy of the information. Hence, it is my view that counsel’s consent on behalf of the appellant provides a complete answer to this ground of appeal. There is nothing to indicate that the consent was uninformed. Indeed, the record shows that the applications judge expressed concern with the approach suggested by counsel and that he took great care in ascertaining that this was indeed agreed to by the defence. Further, given the particular circumstances of this case, the procedure suggested by counsel made sense and I see no reason why the applications judge should have refused to accede to it. I note the following circumstances in particular.

[61] First, the Federal Crown and the RCMP were not involved in the investigation or the prosecution of the murder charge before the court. It was common ground between the parties that the material to be reviewed concerned a separate, unrelated investigation. In these circumstances, it is perhaps not surprising that none of the counsel on the application saw any impropriety in having the applications judge hold this private meeting for the sole purpose, as expressly noted on the record, of assisting him in going through the extensive material.

[62] Second, the nature of the privilege that was asserted is important to keep in mind. The determination of whether the informer privilege extended to the material in question did not involve a balancing of interests as the determination of other forms of Crown privilege may entail. Hence, there was no need to receive input from appellant’s counsel on his client’s particular interests in obtaining disclosure of the material in order to determine whether the privilege existed as claimed. This was made clear by the Supreme Court of Canada in R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281. After elaborating on the proposition that “informer privilege is an ancient and hallowed protection which plays a vital role in law enforcement”, McLachlin J., in writing on behalf of all members of the Court on this point, stated the following:

[12] Informer privilege is of such importance that once found, courts are not entitled to balance the benefit enuring from the privilege against countervailing considerations, as is the case, for example, with Crown privilege or privileges based on Wigmore's four-part test: J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (1992), at pp. 805-6. In Bisaillon v. Keable, supra, this Court contrasted informer privilege with Crown privilege in this regard. In Crown privilege, the judge may review the information and in the last resort revise the minister's decisions by weighing the two conflicting interests, that of maintaining secrecy and that of doing justice. The Court stated at pp. 97-98:

This procedure, designed to implement Crown privilege, is pointless in the case of secrecy regarding a police informer. In this case, the law gives the Minister, and the Court after him, no power of weighing or evaluating various aspects of the public interest which are in conflict, since it has already resolved the conflict itself. It has decided once and for all, subject to the law being changed, that information regarding police informers' identity will be, because of its content, a class of information which it is in the public interest to keep secret, and that this interest will prevail over the need to ensure the highest possible standard of justice.

Accordingly, the common law has made secrecy regarding police informers subject to a special system with its own rules, which differ from those applicable to Crown privilege.

[13] The Court in Bisaillon v. Keable summed the matter up by asserting that the application of informer privilege "does not depend on the judge's discretion, as it is a legal rule of public order by which the judge is bound" (p. 93).

[14] In summary, informer privilege is of such importance that it cannot be balanced against other interests. Once established, neither the police nor the court possesses discretion to abridge it.

[63] Hence, in this case there was no need for input unless and until the applications judge decided that some of the material was not privileged. Trial counsel repeatedly made clear that he was only seeking disclosure of any material that was not found by the applications judge to be privileged. No exception to the privilege exception was claimed in this case. Informer privilege is subject to only one exception, known as the “innocence at stake” exception, and when it is raised, the information must be reviewed to determine whether its disclosure is necessary to prove the accused’s innocence: see R. v. Leipert at paras. 20 and 33. However, no such issue arose in this case. The appellant, through counsel, fully participated in the proceeding to the extent that it was required to guard his interests.

[64] To conclude, I would add that, even if the private meeting in question had taken place during the course of the appellant’s trial, and not in the context of a separate s. 37 application, I would have no hesitation in concluding that the exception under s. 650(2)(b) applied in this case. Section 650(2)(b) provides that “the court may permit the accused to be out of court during the whole or any part of his trial on such conditions as the court considers proper.” In this case, the appellant was absent from that part of the proceeding that allowed a private review of the privileged material with the permission of the presiding judge within the meaning of this provision.

[65] For these reasons, I would not give effect to this ground of appeal.

IV. The Trial Judge’s Instructions to the Jury

(a) The instructions relating to the “other suspect” defence

[66] As stated earlier, it was part of the defence’s theory at trial that Russell, on whose property the remains of the deceased were found, had himself killed Leveille and that he was lying about the appellant’s participation in the crime to protect himself. It may be useful at this point to review Russell’s evidence.

[67] Russell was one of the witnesses who gave evidence on the appellant’s motive for killing Leveille. He testified that the appellant told him some time early in 1995, or perhaps earlier, that Leveille was cutting into the appellant’s cigarette and liquor operations in Sudbury. He also told Russell that he believed that Leveille had broken into his home and stolen things. The appellant said that he would “take care of him”.

[68] Russell also gave extensive evidence implicating the appellant in the disposal of the deceased’s remains. He testified that in February 1995, he received a call early one morning from the appellant who said he was coming to Russell’s farm. Later, the appellant arrived in a truck with bales of hay. He told Russell “I took care of my problem. I need to use your silo.” The silo was near Russell’s house and was used to burn garbage. Russell gave the appellant permission to use the silo. The appellant went to the silo and came back to Russell’s house some fifteen minutes later. There were no more bales of hay in his truck. The appellant told Russell that he’d been up most of the night driving and that he was hungry. They therefore went out for breakfast.

[69] When they returned from breakfast, the appellant said that he had to check on the fire. He asked Russell for firewood. Russell helped him load some wood on his truck. The appellant returned to the silo and unloaded the wood. He came back and asked Russell for more burning material. Russell and the appellant went to Russell’s cabinet making workshop where, with the assistance of Russell’s employees, including Clayton Tarrant, they loaded empty boxes and scrap pieces of wood into the appellant’s truck. After loading the appellant’s truck, Russell and the appellant returned to the silo. Russell looked into the silo and saw what appeared to be a charred human torso. He assisted the appellant with the burning material and later provided him with a can for gasoline.

[70] Russell testified that two days after the body was burned, the appellant returned to rake the ashes in the silo. Russell saw the appellant remove some bones and jewellery from the ashes. He placed these items in a garbage bag and he and Russell drove to a dumpster and left them there.

[71] Russell was also one of the three witnesses who testified that the appellant had admitted killing Leveille. The appellant told Russell that he had killed Leveille by hitting him over the head with a shovel. He had then cut up the body, put it in his truck and left it out to freeze before bringing the remains to the silo.

[72] On February 16, 1996, as a result of Russell’s information, the police searched the silo, and, among garbage and various burnt objects, they found a number of bones. The bones were examined by a forensic anthropologist who concluded that they were burnt human bones that had been disturbed since they were burned. The bones were also examined by a forensic odontologist and found to be those of Gerald Leveille. The bones that were left in the dumpster were never recovered.

[73] The appellant submits that the trial judge failed to outline the defence position that Russell was the real killer and that he failed to relate the evidence to that position. He submits that the jury should have been specifically instructed that if they believed that Russell was responsible for the killing, or had a reasonable doubt on this issue, they must acquit.

[74] I note at the outset that the defence at trial did not seek the specific instruction that it now seeks on appeal and that no objection was made on this aspect of the charge. In my view, this is significant in assessing the adequacy of the trial judge’s instructions to the jury on this aspect of the defence. Indeed, having regard to the evidence and the address of trial counsel, it becomes apparent why such an instruction was not sought or given.

[75] The defence at trial was multifaceted and not so focused on Russell being “another suspect” as now contended on appeal. In my view, Crown counsel on appeal accurately characterized the defence position in his factum where he stated that the proposition that Russell killed or was involved in the death of Leveille was “overlaid upon the core position that Russell was falsely accusing the appellant”, rather than upon “any inference that could be drawn from the evidence.” Crown counsel also correctly noted that

[p]aralleling this position was a diffuse suggestion that there were several other people who could have murdered the deceased, including “Rod” in Cornwall, the man in the donut shop who appeared to intimidate the deceased, and certain people whom the deceased said he was going to meet at the Toronto Airport. The defence position was not a directed submission that Russell was the real killer, but that, more generally, there existed doubt as to the identity of the killer.

[76] Further, there was ample direction from the trial judge relating to Russell’s evidence and the defence’s theory in this regard. The trial judge placed much emphasis on Russell's disreputable character and the need for careful scrutiny of his evidence. He repeatedly referred to him as an unsavoury witness and gave a very strong warning in relation to his evidence with emphasis on his participation in the commission of a crime. The trial judge noted that Russell was an accomplice “at least” in relation to the second count in the indictment, offering an indignity to the remains of the deceased. He also instructed the jury on the need to be cautious in accepting Russell’s evidence because of the "deal" that he made with the prosecution authorities in return for the information that he provided, adding the following:

Accordingly, in addition to applying the usual test for credibility which I have outlined and the warning because of unsavoury character, you should consider that Mr. Russell may have an interest of his own to serve by giving evidence implicating the accused in the Leveille murder. [Emphasis added.]

[77] The trial judge again referred the jury back to the problems with Russell's evidence when he reviewed his testimony that the appellant had admitted killing Leveille:

I don't intend to review again the flaws which make Cecil Russell an unsavoury character or all of the reasons why you must be very, very careful in scrutinizing his evidence before giving it effect in your deliberations. … You should direct your mind to it again on this issue of after the fact evidence. … The defence position, as I see it, is that this witness is so untrustworthy as to not be believed at all.

[78] For these reasons, I see no merit to this ground of appeal.

b) The Vetrovec warning

[79] There were several other witnesses whose evidence was described by the trial judge as suspect by reason of their unsavoury character. Just as he did with respect to Russell’s evidence, the trial judge gave appropriate instructions to the jury on the risk of convicting the appellant on the basis of the evidence of these witnesses without some independent confirmation of the witness’ testimony. This caution is commonly referred to as the “Vetrovec warning” or “caution” in reference to the seminal decision of the Supreme Court of Canada in Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811, 67 C.C.C. (2d)1.

[80] The following witnesses were characterized as unsavoury: Russell, whose evidence I have reviewed; Joel Pilotte, who gave incriminating evidence of statements made by the appellant both before and after Leveille’s disappearance including an admission to the killing; Martin LaChapelle, to whom the appellant had also admitted killing Leveille; and Lise Lapointe, who testified that Leveille told her the night before his disappearance that he planned on meeting the appellant the next morning and going with him to meet with Cecil Russell. In light of the number of unsavoury witnesses and the importance of their testimony, the Vetrovec caution became a recurring theme in the trial judge’s instructions to the jury, and rightly so. Their testimony was central to the Crown’s case and it was therefore important that it be scrutinized.

[81] The trial judge’s approach on this issue can be described as follows. First, early on in his charge, he cautioned the jury in general terms about the risk involved in convicting the appellant on this kind of testimony. Then, he identified each witness who fell in this category, and reviewed the evidence that made his or her testimony suspect. Next, he elaborated on the necessity to be cautious, particularly with regard to the evidence that was central to the Crown’s case, and to look for confirmation of the evidence in some way. Finally, throughout his instructions, the trial judge made repeated references to the caution that should be exercised in considering these witnesses' testimony. He did so, both in reference to the elements of the offence and in reviewing the various witnesses’ testimony as it related to the issues in the case.

[82] The appellant takes no issue with the approach adopted by the trial judge and with most of what was said to the jury on this issue. As stated earlier, the appellant contends, however, that the trial judge made three errors in the course of cautioning the jury against accepting the evidence of the unsavoury witnesses: (i) he improperly exempted Clayton Tarrant from the unsavoury witness category; (ii) he improperly extended the warning to two defence witnesses, Matthew Lachance and Roger Pilotte; (iii) and he erred in including two items of evidence on the list of evidence that was potentially confirmatory of Cecil Russell’s testimony.

(i) exemption of Tarrant from category

[83] Tarrant was important to the Crown’s case in two respects: first, he provided some confirmation of Russell’s testimony on the events of February 1995 when the body was burned, and second, he provided evidence of a taped conversation with the appellant after the remains were found by the police from which an inference of guilty knowledge could be drawn. The gist of his evidence was as follows.

[84] Tarrant worked for Russell as a cabinetmaker and installer. He was aware of Russell’s illegal activities, but denied any involvement in them. He had been charged with conspiracy to traffic in steroids with Russell, but the charge was later withdrawn. While the charge was outstanding, Tarrant had breached his bail conditions by continuing to associate with Russell. He admitted this to the police, but was not charged. Tarrant had also been involved in smuggling liquor, though not with Russell. Tarrant considered Russell to be a good friend and was loyal to him. According to Russell, Tarrant would occasionally pick up boxes of illegal shipments for him and knew full well what was in them.

[85] Tarrant confirmed Russell’s testimony that he and the appellant had gone to the cabinet making workshop to get more burning material for the silo. Tarrant recalled that, early one morning in February, 1995 when he was at work, the appellant and Russell showed up and wanted a load of garbage. He found this unusual because he, Tarrant, usually took out the garbage. At Russell’s direction, Tarrant and another employee had loaded kitchen countertops and a few garbage bags onto the appellant’s truck.

[86] Tarrant further testified that that the appellant used to telephone him in 1996 from time to time to make inquiries about whether Russell was still in custody on the conspiracy charge. Tarrant taped one of these conversations because he knew that the police were investigating the appellant. The tape of this conversation was introduced at trial. During the course of this conversation, Tarrant told the appellant that the police had been to Russell’s silo. After ascertaining that the appellant was not aware that the police had been at Russell’s silo, Tarrant stated that perhaps he should not say what else was going on. When the appellant then said “Tell me”, Tarrant told him that the police had been digging in the silo and that they had found “something”. The appellant then said “Okay, I’d better stay here where I am, then.”

[87] In the course of identifying the witnesses who were unsavoury and the reasons why their testimony was suspect, the trial judge said the following about Tarrant:

Though Clayton Tarrant was associated with Cecil Russell and employed as a tradesman by him, and there are some indications that Russell manipulated him and used his address for pick-up and delivery, I do not see his character as requiring specifically the unsavoury witness warning. He has no criminal record. The charges of conspiracy to traffic in steroid[s] against him were withdrawn without an exchange of information from him. There is no indication in the evidence that I've heard of independent gain from any illegal activity. His credibility will be carefully weighed by yourselves as jurymen in any event. You will recall, he continued to associate with Karen, the secretary in Mr. Russell's business, and to communicate with Cecil Russell after bail terms required that he not do so. This can be taken as an indication of lack of respect for a Court order as could his continued response to telephone calls from the accused, Mr. Pilotte. It is to be remembered, of course, that he was fixed with running the cabinet making business belonging to Cecil Russell when he was released on bail. This almost necessarily required that he associate with the secretary referred to and that he communicate with Mr. Russell concerning the business. There is no evidence that he called Mr. Pilotte, that he initiated calls to Mr. Pilotte or in fact, knew where he was to call him. He did not respond to the calls when he received them. He also made these calls and their contents known to the police. You must assess Mr. Tarrant's credibility with common sense as any other normal witness. I see no need to tell you when dealing with him to exercise the extra caution necessary as you would when you would assess the evidence of an unsavoury character.

[88] Counsel for the appellant argues that the trial judge erred in excluding Clayton Tarrant from the category of unsavoury witnesses. I do not find this argument persuasive. While Tarrant could have been so identified by the trial judge, it was well within his discretion not to do so based on the evidence. I find no error in excluding Tarrant from the category.

[89] Alternatively, counsel submits that, even if the trial judge did not err in his discretion to exempt Tarrant, he erred in giving the jury his reasons for not including Tarrant in this category of witnesses, because this could have led the jury to conclude that Tarrant was a credible witness. While there is logic and some merit to this argument when this part of the charge is considered in isolation, I am not satisfied that the appellant was prejudiced by these comments when they are considered in context. The trial judge’s review of the evidence that related to Tarrant’s character was accurate, and, on the whole, it is my view that the impugned instruction constituted fair comment on the evidence. Further, it is noteworthy that the trial judge directed the jury to weigh Tarrant’s evidence carefully in any event. Consequently, I am not satisfied that the trial judge committed any reversible error in his instructions with respect to Tarrant.

(ii) alleged extension of warning to defence witnesses

[90] The second impugned part of the charge in relation to defence witnesses was as follows:

Though witnesses Matthew Lachance and Roger Pilotte are not central to the prosecution case, indeed are defence witnesses, their credibility must be carefully scrutinized. Mr. Lachance sold dope. I think he referred to coke and stolen property. He had a criminal record for dishonesty and offences of fraud and forgery and is said by Tara Pilotte to be of dishonest reputation. He lied repeatedly to the police in the investigation and admits it saying he only told them what they wanted to hear to get them off his back. Roger Pilotte, the accused's nephew, was in the drug trade with Matthew Lachance. His attitude in the witness box, you will recall. My observations should not be accepted by you as indicative of anything. It is your observation that matters.

[91] Matthew Lachance and Roger Pilotte were two of a number of witnesses called by the defence to attack the credibility of the Crown witnesses and to suggest that several other people could have murdered Leveille, including “Rod” in Cornwall, a man in a donut shop who appeared to intimidate Leveille, and certain people whom Leveille had said he was going to meet at the Toronto Airport.

[92] The appellant contends that the trial judge’s instruction with respect to Lachance and Roger Pilotte, coming as it did immediately after the trial judge had identified the unsavoury witnesses for the Crown, would have led the jury to conclude that they were also unsavoury witnesses whose evidence could not be relied upon without confirmatory evidence. It is well-established that unsavoury witness warnings ought not to be given with respect to defence witnesses: see R. v. Hoilett (1991), 1991 7285 (ON CA), 3 O.R. (3d) 449 at 451-52 (Ont. C.A.).

[93] Again, it is important to consider this instruction in the context of the entire charge. I am not satisfied on considering the charge as a whole that the jury would have mistakenly believed that the Vetrovec caution applied to these witnesses. The trial judge did not instruct the jury to look for confirmatory evidence with respect to these two witnesses and did not repeat any words of caution in relating their testimony as he did with the witnesses he had expressly identified as unsavoury. Further, there was ample evidence to support the trial judge’s comments with respect to these witnesses. Counsel for the appellant himself commented on Matthew Lachance’s lack of credibility in his address to the jury:

Now, of course, one of the witnesses that I called for you is Matthew Lachance. And it is possible that Diogenes might have some trouble with Matthew as well. Fair point. Because Matthew is a real problem. He wasn't straightforward with the police in the first place. He was trying to cover a lot of tracks when he met with the police and he was not doing a very good job of it. Now, he cames [sic] to court, he says he's trying to be more honest, maybe he is, but it's understandable if he think it's too late. Mr. Huneault did a brilliant job with him in showing what he had said earlier and to say to him in essence these words: "Matthew, your prior lies have caught up with you. They undercut your evidence in this courtroom." And obviously, that's an accurate statement. But I ask you not to forget the pieces of Matthew's evidence that were confirmed by others.

[94] Finally, in the context of the evidence at trial, the testimony of Matthew Lachance and Roger Pilotte was of minimal probative value.

(iii) items of confirmatory evidence

[95] The trial judge pointed to a number of items of evidence that could be considered by the jury as potentially confirmatory of Russell’s evidence on certain aspects of his testimony. The trial judge concluded the list of those items by saying that those seemed, “on the surface, to be snippets of evidence from independent sources that would confirm in some way the evidence of Cecil Russell.” The appellant contends that two of those items could not confirm his evidence: first, the forensic evidence of Kathy Gruspier that burnt remains were found in the silo and that their appearance was consistent with the remains having been raked; and second, the evidence that Russell and Ninchritz had dinner plans with one Miss Mailer.

[96] In my view, the forensic evidence was confirmatory of Russell’s testimony in the sense described in Vetrovec. Although it did not implicate the appellant, it tended to support Russell’s story on what was done with the deceased’s remains. As such, it could restore, at least in part, the jury’s faith in the truth of his testimony. While the second item of evidence was of questionable value in assessing Russell’s credibility, I am not persuaded that the appellant was prejudiced by its inclusion. Further, it is noteworthy that the trial judge, in his recharge to the jury, gave further instructions that they should not conclude that a witness was credible simply because they found certain items of evidence to be confirmatory of his or her testimony.

[97] In summary, the trial judge gave a fair, balanced, and adequate charge with respect to the unsavoury witnesses. This jury was given all the assistance it needed to deal with this evidence. Indeed, when considered as a whole, the caution that had to be given to the jury in this difficult case, was very effectively delivered. Even if the imperfections that have become apparent under the appellate microscope could be said to constitute error, a conclusion I have not reached, I would not hesitate to apply the curative proviso.

c) The instruction relating to the “two-step” process

[98] Finally, the appellant takes issue with the following instruction given at the outset of the charge:

So far, all we have in this case is evidence. You are the only persons in the courtroom who can transform portions of that evidence which you accept as truthful and credible into fact. After you have been able to do that, then the law which I give you, and that is my sole responsibility in this case, will be applied to those facts so that you can come to a verdict; so that your responsibility is to determine the facts, my responsibility is to give you the law.

[99] The appellant submits that this instruction is similar to that prohibited by this court in R. v. Miller (1992), 1991 2704 (ON CA), 68 C.C.C. (3d) 517 (Ont. C.A.) at 543-44 where the trial judge had instructed the jury to consider the evidence in two separate steps in such a manner that there was a risk that the jury may not have considered the whole of the evidence in arriving at their verdict. In my view, the charge in this case bears no resemblance to that in Miller. The impugned instruction was given at the beginning of the charge in the context of explaining the respective roles of the judge and the jury and, in my view, it could not have misdirected the jury in relation to those items of evidence that could give rise to a reasonable doubt. When the charge is considered as a whole, it is plain that the jury was instructed to consider all of the evidence in arriving at a verdict, not just that which it accepted as truthful. Therefore, I see no merit to this ground of appeal.

[100] For these reasons, I would not give effect to any of the grounds of appeal that relate to the instructions to the jury.

V. Disposition

[101] For these reasons, I would dismiss the appeal.

Released: MAR 05 2002 LVC

Signed: “Louise Charron J.A.” “I agree J.-M. Labrosse J.A.” “I agree R.S. Abella J.A.”

APPENDIX

37. (1) A minister of the Crown in right of Canada or other person interested may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest.

(2) Subject to sections 38 [matters relating to international relations or national defence or security] and 39 [matters relating to a confidence of the Queen's Privacy Council] an objection to the disclosure of information is made under subsection (1) before superior court, that court may examine or hear the information and order its disclosure, subject to such restrictions or conditions as it deems appropriate, if it concludes that, in the circumstances of the case, the public interest in disclosure outweighs in importance the specified public interest.

3. Subject to sections 38 [matters relating to international relations or national defence or security] and 39 [matters relating to a confidence of the Queen's Privacy Council] under subsection (1) before a court, person or body other than a superior court, the objection may be determined, on application, in accordance with subsection (2) by

(a) the Federal Court-Trial Division, in the case of a person or body vested with power to compel production by or pursuant to an Act of Parliament if the person or body is not a court established under a law of a province; or

(b) the trial division or trial court of the superior court of the province within which the court, person or body exercises its jurisdiction, in any other case.

(4) An application pursuant to subsection (3) shall be made within ten days after the objection is made or within such further or lesser time as the court having jurisdiction to hear the application considers appropriate in the circumstances.

(5) An appeal lies from a determination under subsection (2) or (3)

(a) to the Federal Court of Appeal from a determination of the Federal Court-Trial Division; or

(b) to the court of appeal of a province from a determination of a trial division or trial court of a superior court of a province.

(6) An appeal under subsection (5) shall be brought within ten days from the date of the determination appealed from or within such further time as the court having jurisdiction to hear the appeal considers appropriate in the circumstances.

(7) Notwithstanding any other Act of Parliament,

(a) an application for leave to appeal to the Supreme Court of Canada from a judgment made pursuant to subsection (5) shall be made within ten days from the date of the judgment appealed from or within such further time as the court having jurisdiction to grant leave to appeal considers appropriate in the circumstances; and

(b) where leave to appeal is granted, the appeal shall be brought in the manner set out in subsection 60(1) of the Supreme Court Act but within such time as the court that grants leave specifies.

1980-81-82-83, c. 111, s. 4.