Her Majesty the Queen v. Holmes [Indexed as: R. v. Holmes]

62 O.R. (3d) 146

[2002] O.J. No. 4178

Docket Nos. C35772 and C34957

Court of Appeal for Ontario,

Rosenberg, Cronk and Gillese JJ.A.

November 4, 2002

• Application for leave to appeal to the Supreme Court of Canada was dismissed April 17, 2003 (McLachlin C.J., Bastarache and Deschamps JJ.). S.C.C. File No. 29542. S.C.C. Bulletin, 2003, p. 621.

Criminal law -- Evidence -- Statements -- Voluntariness -- Accused spending 16 hours in police custody before being interviewed -- Police and Crown not accounting for that period of time and accused not taken before justice -- Trial judge erring in finding that any concerns about unaccounted-for time in police custody were overridden by fact that accused spoke to his lawyer before interview started -- Crown required to account for lengthy period of custody -- Crown not discharging burden of proof by showing that accused had access to counsel -- Proof that accused exercised right to counsel does not amount to proof of voluntariness of accused's statements -- New trial ordered.

Criminal law -- Evidence -- Identification evidence -- Witness not selecting photograph of accused in photo line-up -- Witness testifying at preliminary hearing that saw perpetrator for "two seconds" -- In-dock identification evidence admitted at trial without objection -- Prejudicial effect of this identification may outweigh its probative value as not admitted for narrative or to confirm other identification evidence -- Admissibility of in-dock evidence not determined on appeal as new trial ordered on other grounds. [page147]

The accused was convicted on two counts of arson. He was arrested shortly after 5 a.m. Sixteen hours later, he was interviewed by two police officers. That 16-hour period in police custody was unaccounted for. At the beginning of the interview, the accused was informed of his right to counsel and asked to speak to a lawyer. He did so before the interview started. The interview lasted five hours. The accused was dressed in disposable paper coveralls and complained at one point of being cold. He denied setting the fires, but made several statements that tied him to the area of the fires and said that the owner of one of the affected homes would probably like to kill him. The trial judge was alive to the potential problem caused by the unaccounted-for 16 hours, but found that the concern was completely overridden by the fact that the accused exercised his right to speak to his lawyer before the interview started. One witness testified that she saw the accused in the area of the fires. When shown a photo array shortly after the offence, she didn't select the accused's photograph and tentatively identified a photograph of another man. At the preliminary hearing she testified that she saw the man for about "two seconds". At trial she said that she observed the man for about two minutes and made an in-dock identification of the accused, without objection. The trial judge strongly warned the jury about relying on this evidence. The accused was convicted. He appealed.

Held, the appeal should be allowed.

The trial judge misdirected himself with respect to the burden of proof of voluntariness and erred in holding that the Crown had discharged its burden of proof by showing that the accused had access to counsel. The right to counsel and the voluntariness rule are complementary but are not co-extensive. Proof that the accused exercised his right to counsel is not a proxy for proof of voluntariness. The trial judge must have regard to all of the circumstances when determining the voluntariness of a statement. Moreover, the police have an obligation under s. 503(1) of the Criminal Code, R.S.C. 1985, c. C-46 to bring a detainee before a justice without unreasonable delay, and have no power to detain a person under that section for 24 hours for investigation. In this case, there was no evidence offered as to why the accused was not taken before a justice of the peace.

It was no answer to the concerns raised in this case that the accused did not confess to setting the fires. The voluntariness rule applies to all statements made by an accused to police officers that the accused believes to be persons in authority. In fact, the accused admitted to a myriad of facts upon which the prosecution relied as proof of guilt.

The accused argued on appeal that the in-dock identification evidence should not have been admitted or, having been admitted, that the trial judge should have told the jury to disregard it. No such objection was made of the charge to the jury at the trial. This ground need not be determined as a new trial is ordered on another basis. However, the prejudicial effect of this evidence may outweigh its probative value. The in-dock evidence did not confirm other identification evidence and was not part of the narrative.

APPEAL from a conviction on charges of arson.

R. v. Koszulap (1974), 1974 1461 (ON CA), 20 C.C.C. (2d) 193, 27 C.R.N.S. 226 (Ont. C.A.), apld R. v. Genaille (1997), 1997 4333 (MB CA), 118 Man. R. (2d) 114, 149 W.A.C. 114, [1998] 2 W.W.R. 273, 116 C.C.C. (3d) 459 (C.A.) [Leave to appeal to S.C.C. refused (1997), 124 Man. R. (2d) 80n, 126 Man. R. (2d) 158n, 167 W.A.C. 158n, 225 N.R. 234n]; R. v. Wang (2001), 2001 20933 (ON CA), 153 C.C.C. (3d) 321 (Ont. C.A.), distd [page148] Other cases referred to R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694, 87 N.S.R. (2d) 271, 45 D.L.R. (4th) 487, 81 N.R. 321, 222 A.P.R. 271, 38 C.C.C. (3d) 193, 61 C.R. (3d) 305; R. v. Erven (1978), 1978 19 (SCC), [1979] 1 S.C.R. 926, 44 C.C.C. (2d) 77, 30 N.S.R. (2d) 89, 92 D.L.R. (3d) 507, 25 N.R. 49, 49 A.P.R. 89, 6 C.R. (3d) 97 (sub nom. Erven v. R.); R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, 47 B.C.L.R. (2d) 1, 110 N.R. 1, [1990] 5 W.W.R. 1, 49 C.R.R. 114, 57 C.C.C. (3d) 1, 77 C.R. (3d) 145; R. v. Klymchuk, [2000] O.J. 4435 (Quicklaw) (S.C.J.); R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 56 O.R. (3d) 737, 160 C.C.C. (3d) 493, 47 C.R. (5th) 203 (C.A.); R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, 187 N.S.R. (2d) 201, 190 D.L.R. (4th) 257, 259 N.R. 227, 585 A.P.R. 201, 147 C.C.C. (3d) 321, 36 C.R. (5th) 129 (sub nom. R. v. Oickle (R.F.)); R. v. Piche, 1970 182 (SCC), [1971] S.C.R. 23, 11 D.L.R. (3d) 700, 12 C.R.N.S. 222, 74 W.W.R. 674, [1970] 4 C.C.C. 27; R. v. Sweezey (1974), 1974 1427 (ON CA), 20 C.C.C. 297, 27 C.R.N.S. 163 (Ont. C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 10(b) Criminal Code, R.S.C. 1985, c. C-46, ss. 487.052, 503(1), 686(1)(b)(iii) Authorities referred to Freckleton, I., and H. Selby (eds.), Expert Evidence (Sydney: Law Book Co., 1993)

David E. Harris, for appellant. John McInnes, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- The appellant appeals his convictions on two counts of arson following a trial before Donohue J. and a jury. Although the appellant raised a number of grounds of appeal, the outcome of this appeal turns on the admissibility of a statement made by the appellant some 16 hours after his arrest. In my view, the trial judge misdirected himself with respect to the legal test to be applied in determining the voluntariness of this statement. Accordingly, I would allow the appeal and order a new trial.

The Facts of the Offences

[2] In the early morning hours of May 29, 1999, the garages of two homes in Chatham were set on fire. The central issue at trial was whether the appellant set the fires. The Crown alleged that the appellant had a motive to set at least one of the fires and was in the area when both fires were set.

[3] The first fire was set at about 2:30 a.m. at the home of Tammy Gross. Ms. Gross knew the appellant because he was a friend of her ex-boyfriend, Donald Dubuque. Aside from the [page149] appellant's statement to the police, to which I will refer later, there was little evidence that the appellant had any reason to harm Ms. Gross.

[4] The second fire was set at the home of Jennifer Mazepa at about 4:30 a.m. It takes about 35 minutes to walk the distance between the Gross and Mazepa homes. There was some evidence that the appellant had a motive to harm Ms. Mazepa. On the afternoon of May 28, the appellant was drinking with Mr. Dubuque and another man. Dubuque and the other man mentioned that they had seen Ms. Mazepa sunbathing in a bikini. The appellant boasted that he knew Ms. Mazepa and offered to call her to prove it. Ms. Mazepa testified about the call. In short, the appellant was rude and abusive and she told him not to call her when he had been drinking.

[5] The appellant continued to drink at various bars the evening of May 28, and into the early morning of May 29. He became increasingly drunk and abusive to other patrons, especially women. At one point, he told his drinking companion that there were going to be "three or four fucking fires tonight".

[6] Sometime during the night, Ms. Mazepa was awakened by the telephone. The person hung up and then the telephone rang again. It was the appellant. He begged her to let him come over. She said "no". She could hear a siren in the background. The appellant laughed and told Ms. Mazepa that if the police asked her, she should say that he was on the telephone with her at the time. He kept saying"We've been on the phone a long time. . . . Forty minutes you think?" She said "no" and asked him if he was still drunk. He said he was at the pay phone just down the street and asked her to open her garage door and let him in. Ms. Mazepa's call display indicated that the call was made from a plaza down the street at 3:56 a.m. The appellant was very persistent and they talked about 20 minutes. Eventually, she swore at him and hung up the telephone. A short time later she noticed that her garage was on fire.

[7] Three civilians testified about seeing strangers in their neighbourhood around the times of the fires. Only one of these witnesses, Marrianne Woudenberg, purported to identify the appellant. The admissibility of that part of Ms. Woudenberg's evidence is in issue on this appeal and I will outline her testimony in greater detail when I deal with that ground of appeal. Leaving aside her purported identification of the appellant, it was open to the jury to find from this evidence and the evidence as to the manner in which the fires were set, that the same person set both of them.

[8] The police arrested the appellant shortly after 5:00 a.m. When he was arrested, the appellant was walking at the side of [page150] [a] road. He was rambling and had been drinking. The officer told him the reason for his arrest and informed of his right to counsel. He responded to his arrest for arson with an emphatic denial. At about 5:30 a.m. the appellant had an encounter with Constable Keith Myers in the police station booking room. Myers and the appellant knew each other. The appellant said to him"You've been waiting a long time for this, haven't you, Keith?" Myers advised the appellant this time he had crossed the line and not to talk to him. The appellant said"You think you got me this time?" Myers replied"Yes, I do". The appellant said"Are you sure this time?" Myers said"As sure as I'll ever be". The appellant said"Well, we'll have to wait and see, won't we."

[9] The appellant then made several unsuccessful attempts to reach his lawyer. Constable Myers asked the appellant which officer he would like to speak to. The appellant asked for Ron Bourdeau. That interview took place about 16 hours later in circumstances that I will set out below. The trial judge admitted the appellant's statement to Constable Myers. The admissibility of that statement is not an issue on the appeal.

The Bourdeau Statement

[10] As indicated above, the appellant had contact with Constable Myers around 5:30 a.m. The prosecution adduced no further evidence from any person in authority about police dealings with the appellant until Constable Bourdeau removed the appellant from his cell at approximately 10:00 p.m. Thus a period of about 16 hours is not accounted for. For example, Constable Bourdeau did not know whether the appellant had anything to eat before the interview began.

[11] Constable Bourdeau and Detective Ludwig interviewed the appellant for over five hours concluding at 3:33 a.m. The interview was videotaped and a transcript was made available to the trial judge. At the beginning of the interview, the appellant was again informed of his right to counsel and he asked to speak to a lawyer. He was removed from the room. Upon returning to the room, he informed the officers that he had spoken to his lawyer. The appellant was dressed in disposable paper coveralls and complained at one point about being cold. He was supplied with cigarettes when he asked for them. He did not ask for anything to eat. Early in the interview, the appellant asked for his eyeglasses. One of the officers went to find them but returned without them.

[12] The appellant denied setting the fires. He did, however, make several statements that tied him to the area of the fires. He [page151] also said that Ms. Gross would probably like to kill him. This was the only real evidence of motive for that fire. Counsel for the respondent, Mr. McInnes, fairly conceded that if the statement should not have been admitted, the proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 could not be applied.

Analysis

The admissibility of the statement

[13] The appellant raises a number of issues concerning the admissibility of his statement to officers Bourdeau and Ludwig. The most substantial attack on the voluntariness of the statement revolved around the 16-hour gap while the appellant was in police custody. The appellant submits that because of this unexplained gap in the evidence, the Crown could not meet the burden of proof of voluntariness beyond a reasonable doubt. He also submits that the trial judge misdirected himself with respect to the burden of proof and confused the right to counsel with proof of voluntariness. Finally, the appellant submits that there were a number of inducements and an atmosphere of oppression in the course of the statement that rendered it involuntary.

[14] It is not open to this court to reverse the trial judge's decision about the admissibility of the statement simply because we might take a different view of the facts. Iacobucci J. made that clear in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, 147 C.C.C. (3d) 321 at para. 22:

While determining the appropriate legal test is of course a question of law, applying this test to determine whether or not a confession is voluntary is a question of fact, or of mixed law and fact. See R. v. Ewert, 1992 35 (SCC), [1992] 3 S.C.R. 161 at p. 161, 76 C.C.C. (3d) 287n; . . . . Therefore, as this Court held in Ewert, a disagreement with the trial judge regarding the weight to be given various pieces of evidence is not grounds to reverse a finding on voluntariness.

[15] My disagreement with the trial judge in this case, however, is not based on the weight to be given to various pieces of evidence but over the proper legal test to be applied. The trial judge was alive to the potential problem caused by the gap in the evidence. He resolved it as follows:

Moving on to my concern with respect to the midnight discussions, because I am provided with a transcript, I have before me everything that is said to the accused during the interview. What I do not have is what potentially may have been said to the accused throughout the many hours before the interview started. However, that concern is completely overridden by the fact that the accused at his request exercised the opportunity to speak to his own lawyer before the interview progressed. [page152]

It is merely conjecture that some officer who escorted him to the washroom at some point during the daylight hours may have offered him an inducement, but the fact the accused had the benefit of expert legal advice before the midnight interview got going removes any concern I would have over conjectured threats or inducements during the day.

(Emphasis added)

[16] In my view, the trial judge misdirected himself with respect to the burden of proof of voluntariness and erred in holding that the Crown had discharged its burden of proof by showing that the appellant had access to counsel. The leading case in this province on this issue is R. v. Koszulap (1974), 1974 1461 (ON CA), 20 C.C.C. (2d) 193, 27 C.R.N.S. 226 (Ont. C.A.). In that case, the accused was held in a police cell for about 22 hours before being questioned concerning a break-in for which he had been arrested. About two hours later, he made a further statement about a theft. The appeal concerned the admissibility of that latter statement. The prosecution failed to adduce evidence concerning the questioning of the accused about the break-in, at the time of his arrest and when he was interviewed the following day. However, the holding of the court that the Crown had failed to prove voluntariness did not turn solely on that gap in the record. The court was concerned about failure to show how the accused was treated in the 22 hours that he had been held in police custody. At p. 194 C.C.C., Arnup J.A. expressed his concern in these terms:

In this particular case there were substantial portions of the 24-hour period about which none of the police officers who gave evidence on the voir dire could have any personal knowledge; they were either off duty or away from the detachment on police duties. It was, in my view, incumbent on the Crown to show affirmatively that the accused was properly treated, and not questioned, if that were the fact, or to show the facts, if they were otherwise. This was not a difficult or unreasonable task, but it was not done. The statement made should therefore not have been admitted.

(Emphasis added)

[17] Martin J.A. also described the burden on the Crown at pp. 197-98 C.C.C.:

In my view, the officer in charge of the detachment should have been called as a witness on the voir dire to give evidence as to whether any other police officer had been in contact with the appellant in the interval and, if so, evidence should have been given as to what transpired. Evidence should also have been given as to the conditions under which the appellant was held and what he had received in the way of food and drink during the time he was held in custody.

The onus was upon the prosecution to prove affirmatively all the surrounding circumstances leading up to the making of the confession. It was of particular importance that such onus be completely satisfied having regard to the [page153] lengthy period that the appellant was held in police custody prior to the making of the confession.

(Emphasis added)

[18] Further, in words that could apply equally to this case, Martin J.A. held at p. 198 C.C.C.:

The burden of proving that a confession was made voluntarily is not discharged by evidence that it was preceded by a caution and by the evidence of the police officer who obtained the statement that it was not induced by threats or promises. All the surrounding circumstances must be examined in order to enable the Court to determine whether the statement was made voluntarily.

(Emphasis added)

[19] Similarly, in this case, the prosecution could not prove that the appellant's statement was voluntary simply by proof that the accused had been advised of his right to counsel and consulted with counsel. The appellant's counsel was neither present during the 16 hours the appellant was held in police custody nor as the questioning extended late into the night. Obviously, the prosecution could not adduce any evidence about the legal advice the appellant received from his counsel. To discharge its burden, the prosecution, in some way, had to account for the lengthy period that the appellant was held in custody.

[20] The right to counsel and the voluntariness rule are complementary but are not co-extensive. As McLachlin J. held in R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, 57 C.C.C. (3d) 1, at p. 176 S.C.R., p. 35 C.C.C., the state is obliged to allow the suspect to make an informed choice whether to speak to the police. To assist the suspect in making that choice, the suspect is given the right to counsel. Proof that the suspect exercised the right to counsel as guaranteed under s. 10(b) of the Canadian Charter of Rights and Freedoms is not, however, a proxy for proof of voluntariness. The trial judge must have regard to all of the circumstances when determining the voluntariness of a statement. The fact that the suspect was able to consult with a lawyer is simply one, albeit important, circumstance. As Iacobucci J. said in R. v. Oickle, at para. 31:

[I]t would be a mistake to confuse [the common law confession rule] with the protections given by the Charter. While obviously it may be appropriate, as in Hebert, supra, to interpret one in light of the other, it would be a mistake to assume one subsumes the other entirely.

[21] There is one other disturbing feature of this case, also present in R. v. Koszulap. Section 503(1) of the Criminal Code provides, in part, as follows:

503(1) A peace officer who arrests a person with or without warrant . . . shall cause the person to be detained in custody and, in accordance with the [page154] following provisions, to be taken before a justice to be dealt with according to law:

(a) where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period . . .

(Emphasis added)

[22] As Martin J.A. pointed out at pp. 200-02 C.C.C. in Koszulap, the obligation on the police under (now) s. 503(1) is to bring the arrestee before a justice without unreasonable delay. The police have no power to detain a person under this section for 24 hours for investigation. In this case, there was no evidence offered as to why the appellant was not taken before a justice of the peace. Although May 29, 1999 was a Saturday, it was not shown that no justice was available in the City of Chatham on that day.

[23] Mr. McInnes on behalf of the Crown makes two submissions to support the trial judge's decision. First, relying upon the decision of the Manitoba Court of Appeal in R. v. Genaille (1997), 1997 4333 (MB CA), 116 C.C.C. (3d) 459, 118 Man. R. (2d) 114 (C.A.), he argues that the prosecution called every legally significant witness who had contact with the appellant. Second, relying upon R. v. Oickle, he argued that since the appellant did not confess to the crimes, this was proof in and of itself that no police officer induced the appellant to falsely confess. Thus, there was no infringement of the rule against admitting involuntary confessions. I will deal with each of these submissions.

[24] The facts in Genaille were significantly different from the facts of this case. In Genaille, the accused was serving a sentence in a provincial correctional facility. An accomplice identified Genaille as being involved in an armed robbery. The investigating officers arranged to have him transported from the correctional facility to Winnipeg where he was arrested for the armed robbery. The accused argued that the Crown had not discharged the burden of proof of voluntariness because the correctional officers who transported him to the police station had not been called as witnesses. Speaking for the court, Helper J.A. disagreed. She distinguished Koszulap, pointing out at p. 466 C.C.C. that the detention of Genaille, a prisoner serving sentence, in the custody of sheriff's officers unconnected with the police investigation could not be compared with the "detention endured by a citizen being picked up by police from his home and lodged for 24 hours in a prison cell, as in Koszulap". As she said"the detention by the sheriff's officers was relatively short, and the sheriff's officers did not participate in the interview or in the taking of the [page155] statement." The conveyance from the correctional facility to Winnipeg "was an incident that stands separate and apart from the investigation and interview conducted [by the police]". In those circumstances, the prosecution could rely upon the absence of any suggestion of mistreatment during this brief period of detention.

[25] The facts in this appeal are different. During the 16 hours before the interview, the appellant was in the custody of the police force investigating the fires for which he was under arrest. No explanation was provided for why he was not taken before a justice and no account was offered for the time that he was in police custody.

[26] Mr. McInnes's second point turns on the policy behind the voluntariness rule to protect against conviction of an accused on the basis of a false confession as explained by Iacobucci J. in R. v. Oickle at paras. 32 and 57:

As I will discuss below, the confessions rule is concerned with voluntariness, broadly defined. One of the predominant reasons for this concern is that involuntary confessions are more likely to be unreliable. The confessions rule should recognize which interrogation techniques commonly produce false confessions so as to avoid miscarriages of justice[.]

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

(Emphasis added)

[27] Mr. McInnes argues that it is apparent that the appellant's will was not overborne by anything said or done during the 16 hours because he did not in fact confess. To the contrary, the appellant maintained his innocence throughout, notwithstanding a lengthy and skilful interrogation. Thus, even if something improper was said or done during the 16 hours, it obviously could not have had any impact upon the appellant's decision whether or not to confess.

[28] I cannot accept this submission. The voluntariness rule applies to all statements made by an accused to police officers that the accused believes to be persons in authority. See R. v. Erven (1978), 1978 19 (SCC), [1979] 1 S.C.R. 926, 44 C.C.C. (2d) 77, R. v. Piche, 1970 182 (SCC), [1971] S.C.R. 23, 11 D.L.R. (3d) 700, and R. v. Sweezey (1974), 1974 1427 (ON CA), 20 C.C.C. (2d) 297, 27 C.R.N.S. 163 (Ont. C.A.). In Oickle, Iacobucci J. was careful to point out at para. 71 that a trial judge could not [page156] make a proper determination of whether a statement was voluntary without understanding all of the circumstances:

Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an "inducement" as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession's voluntariness, taking into account all the aspects of the rule discussed above. Therefore a relatively minor inducement, such as a tissue to wipe one's nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep, heat, and clothes for several hours in the middle of the night during an interrogation: see Hoilett, supra. On the other hand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary. If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for "some palpable and overriding error which affected [the trial judge's] assessment of the facts": Schwartz v. Canada, 1996 217 (SCC), [1996] 1 S.C.R. 254 at p. 279, 133 D.L.R. (4th) 289 (quoting Stein v. The Ship "Kathy K", 1975 146 (SCC), [1976] 2 S.C.R. 802 at p. 808, 62 D.L.R. (3d) 1) (emphasis in Schwartz).

(Other emphasis added)

[29] Here, the prosecution adduced no evidence of a 16-hour period during which the appellant was in police custody. I do not see how the trial judge could "understand the circumstances surrounding the confession" without coming to grips with the impact of that gap in the evidence. As I have said, relying solely upon the fact that the appellant consulted counsel could not be a complete answer.

[30] The respondent's submission fails because there is simply no proof of one of the underlying assumptions. Mr. McInnes relies upon the fact that the appellant maintained his innocence as proof that he could not have been induced to falsely confess. However, the appellant admitted to a myriad of facts upon which the prosecution relied as proof of guilt. Those admissions may or may not be true. Only by assuming that those facts are true can Mr. McInnes's submissions stand. But, that assumption would undermine the presumption of innocence.

[31] In light of my conclusion on this issue, I do not think it appropriate to deal with the appellant's other submissions that, based upon the transcript of the videotaped statement, it is apparent that the statement was the product of inducements or oppression. That determination could only properly be made in light of an understanding of all of the facts. I do not think that, on this record, this court is in a position to hold that the trial judge made an unreasonable finding or a palpable or overriding factual [page157] error in holding that the transcript of the interview did not disclose any inducements or oppression.

[32] As I have indicated, Mr. McInnes fairly conceded that it would not be appropriate to apply the proviso in s. 686(1)(b) (iii) if this court held that the statement should not have been admitted. I agree. Accordingly, I would allow the appeal and order a new trial. On the new trial, it will be for the trial judge, after holding a voir dire, to determine whether the statement should be admitted. This is not a case like R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 56 O.R. (3d) 737, 160 C.C.C. (3d) 493 (C.A.), where this court was in a position to hold that the statement could not under any circumstances be proved to be voluntary. See R. v. Moore-McFarlane at para. 79. For example, the prosecution may be able to show that the appellant was treated properly for the 16-hour period of detention. This, together with the videotape of the interrogation showing that the appellant made no complaints of ill-treatment and that no one had discussed the case with him, might well be compelling evidence that the statement was voluntary. But, that is a determination for the trial judge.

The Other Grounds of Appeal

[33] In view of my conclusion concerning the statement, I only wish to briefly comment on the other grounds of appeal, some of which may arise on the new trial.

(a) The discharge of the juror

[34] The transcript discloses that a whispered conversation took place between a juror and the trial judge, after the jury had been selected and was about to retire for a break.

. . . JURY BEGINS TO RETIRE

THE COURT: I'm just going to pause for a moment to make sure that gentleman doesn't have some difficulty that -- right. Make sure.

JUROR: Yes, Your Honour, we would like to speak to you.

THE COURT: Very well. Sir.

. . . WHISPERED DISCUSSION BETWEEN JUROR CARRICK (187) AND COURT, INAUDIBLE TO RECORDED RECORD.

THE COURT: . . . to bring that up. We're going to excuse you. I think we're going to have to have the jury back in the jury box and I'm going to excuse this gentleman.

[35] The other members of the jury then returned to the jury box, jury selection resumed and the excused juror was replaced. [page158]

[36] The appellant submits that this constituted a jurisdictional error and was fatal to the conviction. He argues that he was deprived of his right to be present during a vital part of the trial and relies upon the decision in R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694, 38 C.C.C. (3d) 193. In my view, the appellant has not shown any reversible error. Counsel for the appellant at trial (not Mr. Harris) did not object to the procedure followed by the trial judge. The appellant did not adduce any evidence before this court that he did not hear the conversation between the trial judge and the juror. It is simply conjecture that the appellant did not hear the exchange between the trial judge and the juror. The burden was on the appellant to show that he was excluded from this part of the trial. Simply showing that the recording equipment did not pick up the conversation does not satisfy that burden. That said, it clearly would have been preferable for the trial judge to have ensured that the reasons for the juror's exclusion were placed on the record.

(b) The dog tracking evidence

[37] Over objection by defence counsel, the Crown led evidence from Constable Mungar of the Police Dog Services about the behaviour of his tracking dog. The dog had been brought to the scene of the two fires and, based on his tracking, the prosecution sought to show that the same person had been at both fires. The appellant contends that the prosecution did not provide a proper foundation for the admission of this evidence. I tend to agree with the appellant. Since, however, there must be a new trial in any event, I do not need to reach a final conclusion on this issue. On the new trial, if the Crown seeks to lead this evidence again, I would suggest that the trial judge apply the test adopted by Wein J. in R. v. Klymchuk, [2000] O.J. No. 4435 (Quicklaw) (S.C.J.) from Freckleton and Selby, Expert Evidence (Sydney: Law Book Co., 1993), c. 16(a)"Tracker Dog Evidence" at para. 16a.20:

. . . there is now a relatively uniform position internationally with respect to the circumstances in which tracker dog evidence can be admitted against an accused person. There must be detailed basis [sic] evidence about the reliability of the dog breed, and about the skills and reliability of the particular dog as a tracker, before evidence can properly be adduced from a dog-handler about the particular tracking of a scent by a specific dog. The court needs to be informed about the dog's training . . . about its success rates and its susceptibility to distraction, such as by irrelevant scents, cats, or other dogs. The handler needs to be in a position to give detailed evidence about the process, sequence and outcome of the tracking, preferably supported by contemporaneously or near contemporaneously compiled notes. The trial judge needs to administer to a jury a warning that such evidence should be evaluated in terms of the facts of the particular case, and that it falls into the [page159] category of evidence in respect of which special care needs to be exercised because the source of the evidence, the dog, is not able to be made subject to the usual check and balance of the court system -- cross- examination.

(c) The identification evidence

[38] Only one witness purported to identify the appellant as being in the vicinity of the fires. Marrianne Woudenberg testified that at about 3:00 a.m. she saw a man run across the street near her house and walk past her parked car. A short time later the fire trucks, police and the police dog arrived. At trial, she testified that she saw the man for about two minutes. At the preliminary inquiry, she testified that she saw the man for "two seconds". The morning of May 29, Ms. Woudenberg gave a statement to the police and then viewed a photographic lineup. The lineup included a picture of the appellant. She tentatively identified someone other than the appellant as the person she saw run by her house. In the course of her examination-in-chief, the witness gave the following evidence:

Q. That particular individual, do you think you saw him well enough that you would know him to see him again?

A. At that time?

Q. Yes.

A. I thought I did, but . . .

Q. And what about now?

A. Now? Yes.

Q. Do you see that individual?

A. Yes, I do.

Q. Could you point to him, please?

A. Sitting right there.

Q. Sorry, right where?

A. Sitting right behind you.

Q. Indicating the accused, sir.

[39] No objection was taken at trial to this evidence. The appellant submits on appeal that this evidence should not have been admitted or that the trial judge should have instructed the jury to disregard it. The trial judge gave the jury a very strong charge on the danger of relying upon this evidence. He told the jury that this kind of dock identification has little evidentiary value and he explained why this is so. He concluded by directing the jury that if they were "satisfied beyond a reasonable doubt" that the [page160] witness correctly identified the appellant as the person who ran across the street near her home, this was a piece of circumstantial evidence that could be considered by the jury along with all of the other proven facts. The defence did not object to that part of the charge to the jury.

[40] Since there must be a new trial on another ground, I need not decide whether, in view of the lack of objection at trial and the very strong warning given by the trial judge, there was any reversible error. However, it seems to me that the prejudicial effect of the in-dock identification outweighed its probative value and on the new trial, if exclusion of this evidence is sought by the defence, the trial judge should exclude that part of Ms. Woudenberg's testimony. This is not a case like R. v. Wang (2001), 2001 20933 (ON CA), 153 C.C.C. (3d) 321 (Ont. C.A.) where this court held that in-dock identification was properly admitted. In Wang, the evidence was admissible for additional purposes as part of the narrative and to confirm the evidence of an accomplice testifying for the Crown. Ms. Woudenberg's in- dock identification has no such value and would only serve to confuse the jury. It also seems to me that the comments by Finlayson J.A., for the court in Wang, that the issue was one of weight rather than admissibility, meet the broad submission in that case that all of the identification evidence should have been subjected to a voir dire and excluded. The appellant's concern in this appeal is more focused and relates only to that part of Ms. Woudenberg's evidence where she made the in-dock identification in response to somewhat leading questions.

Conclusion

[41] Accordingly, I would allow the appeal, set aside the convictions and order a new trial. The Crown also appealed against the trial judge's decision refusing to make a DNA databank order pursuant to s. 487.052 of the Criminal Code. That appeal is moot in light of this disposition.

Appeal allowed.