COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Spackman, 2012 ONCA 905

DATE: 20121224

DOCKET: C50464

Laskin, Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Kelly Spackman

Respondent

Alexander Alvaro, for the appellant

Joseph Wilkinson and Anida Chiodo, for the respondent

Heard: April 25, 2012

On appeal from the acquittal entered by Justice W. Brian Trafford of the Superior Court of Justice, sitting with a jury, on April 16, 2009.

Watt J.A.:

[1] Sometimes, a person accused of a crime will point to someone else as the person who committed it.

[2] And sometimes, a person accused of a crime will claim that the police investigation of the offence that resulted in the charge was seriously flawed.

[3] Both happened here.

[4] Kelly Spackman was charged with second degree murder. The Crown alleged that he killed Alexander Christoff. Spackman contended that another person, Steve Chung, was the killer and that the police investigation of Chung’s involvement was inadequate; the product of “tunnel vision” that focussed exclusively on Spackman (the respondent).

[5] Crown counsel at trial wanted to call Chung as a witness to give the lie to the respondent’s claim that Chung was the killer. The trial judge, who had already decided that alternate suspect and inadequate investigation issues could be advanced before the jury, ruled that the Crown could not call Chung as a witness or introduce any evidence derived from Chung’s disclaimer of responsibility.

[6] The jury found the respondent not guilty.

[7] The Crown appeals the respondent’s acquittal. The principal ground of appeal concerns the exclusion of Chung’s evidence and other evidence derived from his testimony. Other grounds assert errors in the charge to the jury and in the exclusion of evidence of intercepted private communications.

[8] These reasons explain why I have concluded that a combination of errors in the conduct of these proceedings requires a new trial.

The background facts

[9] It is helpful to begin with a brief overview of the case as it was presented to the jury at trial leaving detailed elaboration where necessary to the individual grounds of appeal.

The Principals

[10] The deceased was a drug dealer who lived in an apartment over a convenience store not far from the intersection of Yonge Street and Lawrence Avenue in Toronto. His currency was marijuana although he had expanded into cocaine trafficking in the year before he died. He was “cautious” in his illicit dealings, careful in his choice of customers, and in the manner in which he conducted his business.

[11] In the three or four months prior to his death, the respondent became the deceased’s supplier of cocaine.

[12] The respondent was also a drug dealer. He lived in an apartment at 110 Erskine Avenue with his girlfriend, Tijana Petrovic.

[13] Steve Chung, another drug dealer, lived at 326 Dalesford Road, a very short distance from where the frozen body of the deceased was found by a passerby on March 11, 2005. Chung supplied cocaine to the respondent in kilogram level quantities.

[14] The respondent and Chung were associates in the cocaine trade. Each had a prior conviction for large scale distribution of drugs. Chung and the deceased did not deal directly with one another although they may have met briefly one evening at the Film Lounge, a local nightclub.

Drug Dealings Between the Respondent and Deceased

[15] The evidence adduced at trial revealed two drug transactions between the respondent as seller and the deceased as purchaser.

[16] The first transaction began at the respondent’s apartment. He asked for, and the deceased provided, $30,000 in cash for a kilogram of cocaine. The respondent took the money, left the apartment, and returned a few minutes later with a kilogram of cocaine. The deceased took the drugs and left the apartment.

[17] The deceased agreed to buy another kilogram of cocaine from the respondent. The price was about the same as the first deal. The deceased turned over the money to the respondent in the same apartment. The respondent left with the money to get the drugs. A few minutes later, the respondent returned to the apartment without the drugs or the money the deceased had given him.

[18] The deceased expressed concern that he had been “ripped off”. The respondent offered to help the deceased recover the drugs or money.

The Recovery Efforts

[19] The deceased and respondent made several “attempts” to recover the drugs or money. The deceased told a friend that a “Woodbridge guy” had been involved in the drug deal.

[20] On February 23, 2005, the deceased and respondent made several telephone calls in connection with the failed drug transaction. They left together from the respondent’s apartment and travelled to Woodbridge, all to no avail. They returned to the respondent’s apartment.

The Threat

[21] Frustrated by the respondent’s failure to refund his money or supply the drugs, the deceased told the respondent that unless the cash were returned or the drugs supplied, he (the deceased) would send some Asian gang members after both the respondent and his girlfriend, or his girlfriend would be kidnapped.

The Cell Phone Traffic

[22] Between February 24 and March 8, 2005, 63 calls were made between cell phones owned by the deceased and the respondent. At least one call took place every day. No money or drugs changed hands.

The Events of March 9, 2005

[23] The deceased and respondent exchanged a further 7 cell phone calls on March 9, 2005.

[24] The deceased’s parents invited him for supper at their home on the evening of March 9, 2005. As they waited for dinner, the deceased answered several calls on his cell phone. Around 7:00 p.m., he left his parents’ home. He said he would be back for supper in 10 minutes. He never returned.

[25] The deceased called a friend and asked him to provide backup for a meeting he (the deceased) was to have with the respondent. The friend declined.

[26] The last telephone call between the deceased’s and respondent’s cell phones took place at 7:29 p.m. on March 9, 2005 and lasted seven seconds. The same cell tower handled both phones indicating that the respondent and deceased were not far apart.

[27] At about 7:30 p.m. on March 9, 2005, the deceased entered the convenience store located on the ground floor of the building where he lived. He was in the store only briefly before he left.

Evening Travels

[28] Calls were made from or received by the deceased’s cell phone between 7:30 and 7:55 p.m. on March 9, 2005. According to the cell towers routing the calls, the trier of fact could conclude that the deceased and the respondent travelled south from the area of the deceased’s apartment to the Gardiner Expressway and west on the Expressway. The deceased spoke to a friend at 7:34 p.m. and again at 7:55 p.m. He said that he was on his way to meet the “Woodbridge guy” to collect his money. At 7:55 p.m. the deceased was less than three kilometres from the place where his body was found two days later.

[29] From 8:20 p.m. on March 9, 2005 and thereafter, all incoming calls to the deceased’s cell phone went directly to voicemail and were routed through one or both towers with coverage in the area where his body was found.

[30] No calls were made from or received by the respondent’s cell phone from 7:29 p.m. until 8:08 p.m. on March 9, 2005, when the tower routing information placed him in an area about 1 kilometre east of where the deceased’s body was found. Similar information placed him near his home at around 8:37 p.m. on March 9, 2005.

[31] A police officer travelled the distance between the location of the deceased’s body and the respondent’s residence on Erskine Avenue in 24 minutes between 8:07 and 8:31 p.m. one evening.

[32] An expert in cellular telephone technology explained that two cell towers provided overlapping coverage in the area in which the deceased’s body was found. Overlapping coverage was not unusual. It was the witness’ opinion that the deceased’s handset was likely stationary from 8:20 p.m. on March 9, 2005. The changes between the overlapping towers revealed by the incoming calls that went directly to voicemail were likely due to instantaneous environmental factors, such as the volume of cellular telephone traffic, or an environmental change such as the movement of a large vehicle through the area.

[33] It was the expert’s opinion that although the deceased’s cell phone could have received text messages between 8:20 p.m. on March 9, 2005, and when his body was found two days later, no text messages were sent from the deceased’s cell phone during that same time.

The Time and Cause of Death

[34] A passerby walking along a pathway discovered the deceased’s body early in the afternoon of March 11, 2005. The body was fully clothed, resting against a chain-link fence near a walkway about 60 or 70 paces away from 326 Dalesford Road where Chung lived. The deceased’s cell phone and a pager were in his pocket.

[35] No blood trail was visible in the area around the body. Investigators found some blood along the back wall of the building, north of the body, as well as on the deceased’s clothing and under his body. They found a toque and pager clip north of the deceased’s body.

[36] The deceased died of blood loss caused by 12 sharp force injuries only one of which was superficial. Two of the wounds were associated with fractures of adjacent ribs indicative of the application of significant force. Dr. David Chiasson, the forensic pathologist who conducted the post-mortem examination of the deceased, said that the wounds had been caused by a single knife or knife-like object with a blade 2.5 centimetres wide and 10 to 15 centimetres long, or by more than one cutting instrument of a similar nature. Dr. Chiasson could not say how many people were involved in the stabbing.

[37] Dr. Chiasson could offer no firm conclusion about the time of the deceased’s death. The body was frozen, a process that takes at least 24 hours, and had rested on its back for an extended time as was apparent from the post-mortem lividity the doctor saw on the posterior surface of the deceased’s body.

[38] No evidence was adduced at trial about where the deceased was killed.

The Respondent’s Version

[39] The respondent did not testify at trial. As part of its case, the Crown introduced two videotaped interviews of the respondent conducted by investigating officers. The accounts provided in each were relatively consistent, the one with the other, but some of the respondent’s answers were demonstrably false in light of other evidence admitted at trial, including telephone records.

[40] The respondent acknowledged that he had known the deceased for about three months through his girlfriend and had seen him socially during that time. The respondent knew that the deceased sold “weed” and “stuff like that”, as well as cocaine. The respondent had bought “weed” from the deceased, but was not involved with him in any illegal activities.

[41] The respondent told investigators that he had last seen the deceased on March 8, 2005, but had spoken to him by telephone while he was at his mother’s Mississauga home at around 6:00 or 7:00 p.m. the following day. The respondent was suffering from the flu on March 9, 2005, and went home around 7:30 p.m. from his mother’s place. He stayed at home with his girlfriend the rest of that night.

[42] The respondent denied any other contact with the deceased. He told investigators that he did not kill the deceased and had no idea who might have done so.

[43] Cellular telephone records admitted at trial contradict the respondent’s account of his whereabouts on March 9, 2005, as well as the nature and frequency of his contact with the deceased.

The Chung Factor

[44] At trial, the respondent advanced Chung as an alternate suspect, a fellow drug trafficker with an equivalent motive and commensurate opportunity to kill the deceased whose body was found about 60 or 70 paces away from where Chung lived. A second feature of the “Chung as killer” theme pressed by counsel at trial was an attack on the adequacy of the police investigation that focussed early on the respondent and, blinded by tunnel vision, never adequately examined the much more likely killer, Chung.

[45] Chung called the respondent twice on March 9, 2005, the last time at 1:50 p.m. Chung’s cell phone was in the vicinity of his home from 3:07 to 8:34 p.m. on March 9, 2005, and later that evening, at 10:46 and 11:12 p.m. was located in the Woodbridge area north of Toronto.

[46] Police canvassed the neighbourhood in which the deceased’s body was found over several days following its discovery. Chung was interviewed by police and shown a photo of the deceased whom Chung said he did not recognize.

[47] Shortly after the first neighbourhood canvass, on March 17, 2005, the respondent and Chung were in contact with each other. That day, surveillance officers saw the respondent remove a package from the trunk of his car and give it to Chung. For his part, Chung returned a dark brown square pouch to the respondent. The pair met on several other dates including immediately after police re-canvassed Chung on May 18, 2005.

[48] On June 13, 2005, police searched Chung’s home under a warrant issued on the basis of an information sworn by the lead investigator asserting a belief that Chung may have been “directly or indirectly involved” in the murder of the deceased. The investigator’s sworn belief was grounded on the close proximity of Chung’s residence to the location where the deceased’s body was found and cell phone records that put Chung in the area during the time the police considered the deceased was killed.

[49] During the search of Chung’s residence, about three months after the deceased had been killed, investigators found nothing to link Chung to the killing. They found no traces of blood on the floor and didn’t test any knives for the presence of blood because they didn’t expect to find any traces of blood on them.

[50] What investigators did find at Chung’s home was a marijuana grow operation, along with some cocaine and several pills. Chung was charged with production of marijuana as a result of the discovery. Five months later, in November 2005, the federal Crown withdrew the charges against Chung.

[51] Police did not obtain a warrant to search and did not search Chung’s vehicle.

the grounds of appeal

[52] Crown counsel raises four grounds of appeal. One relates to the exclusion of evidence, two to the judge’s charge to the jury, and the fourth to a pre-trial ruling made by another judge setting aside an authorization to intercept private communications and declaring inadmissible several intercepted private communications proposed for admission by the Crown.

[53] At the risk of inaccurate paraphrase, I would characterize the grounds of appeal in this way:

i. that the trial judge erred in law in excluding the testimony of Chung and any evidence derived from that testimony proposed by Crown counsel to rebut the “alternate suspect” defence and claim of inadequate investigation;

ii. that the trial judge erred in law in instructing the jury that if they could not decide whether the respondent or Chung killed the deceased, they must find the respondent not guilty;

iii. that the motion judge erred in law in “setting aside” an authorization to intercept private communications granted under Part VI of the Criminal Code, and in excluding several intercepted private communications tendered for admission by the Crown as evidence; and

iv. that the trial judge erred in law in making repeated references to wrongful convictions and miscarriages of justice in his final instructions to the jury.

Ground #1: The Exclusion of Chung’s Evidence

[54] The first and principal ground of appeal relates to a ruling made by the trial judge at the conclusion of a pre-trial motion brought by trial counsel for the respondent (not Mr. Wilkinson). In his ruling, the trial judge:

i. permitted counsel for the respondent to raise the “defence” of inadequate investigation of the alternate suspect Chung;

ii. permitted counsel for the respondent to adduce evidence supportive of the assertion that Chung killed the deceased and that the investigation of Chung’s potential involvement was inadequate; and

iii. excluded the testimony of Chung and any evidence derived therefrom that the Crown proposed to elicit to rebut the “defences” of alternate suspect and inadequate investigation.

[55] The appellant does not quarrel with the trial judge’s decision that permitted counsel for the respondent to adduce evidence in support of the “defences” of alternate suspect and inadequate police investigation. The appellant says that the error lies in the trial judge’s refusal to permit the Crown to respond to the issues admittedly in play at trial with contrary evidence from Chung and others that would have left the jurors with a more balanced picture to evaluate the legitimacy of the respondent’s claim.

[56] To appreciate more fully this ground of appeal, it is necessary to sketch in some further detail about Chung and the investigation that followed the discovery of the body of the deceased.

The Additional Background

The Early Investigative Steps

[57] Chung was first approached by the police within days of the finding of the body of the deceased. He told them that he had been at a nightclub on the night of March 9, 2005 and had not returned until 3:00 a.m. on March 10, 2005. Immediately after he had spoken to police, Chung called the respondent twice. Chung also contacted the respondent’s brother. The respondent called Chung.

[58] On April 27, 2005, a judge of the Superior Court of Justice granted an authorization to intercept the private communications of several named persons including both the respondent and Chung. The supportive affidavit alleged that Chung was directly involved in the killing of the deceased.

[59] Police spoke to Chung again on May 18, 2005 and showed him a photograph of the deceased. Chung said he didn’t know the person in the photograph. After this canvass, Chung called the respondent several times and went to his apartment. He also counselled another witness not to speak to the police about the investigation.

The Search of Chung’s Home

[60] Detective Sgt. Saunders swore an information to obtain a warrant to search Chung’s residence on June 13, 2005 (the ITO). The lead investigator alleged that Chung was involved in the killing of the deceased and that the killing took place at 326 Dalesford where Chung lived.

[61] After Chung’s arrest on drug charges that arose as a result of the search of his home on June 13, 2005, Det. Sgt. Saunders approached Chung to ask him some questions about the killing of the deceased. Chung was not under arrest for the murder, nor considered a suspect. Chung declined the police request to speak to them about the homicide investigation.

[62] The authorization to intercept private communications granted on April 27, 2005, expired on June 27, 2005. The intercepted calls revealed nothing conclusive about Chung’s involvement in the killing, but nothing said eliminated the possibility that Chung had been directly involved.

[63] The respondent was arrested for the murder of the deceased on July 14, 2005. Det. Sgt. Saunders considered that the investigation of Chung was sufficiently complete that police could concentrate on the case against the respondent. No further investigation was undertaken in connection with Chung.

[64] Chung left the jurisdiction in late 2005 after the federal Crown had withdrawn the charges laid in connection with the grow operation found during the search on June 13, 2005.

The Preliminary Inquiry

[65] At the respondent’s preliminary inquiry in June, 2006, Chung did not testify. He was not subpoenaed as a witness. The police had made no effort to locate him. Trial counsel for the respondent did not discuss Chung’s attendance with Crown counsel, nor ask that Chung be made available to give evidence at the inquiry.

[66] During his cross-examination of Det. Sgt. Saunders, trial counsel for the respondent elicited evidence on two issues that he would later raise at trial:

i. Chung as an alternate suspect; and

ii. the adequacy of the police investigation in connection with Chung.

It is a reasonable inference that, by the end of the preliminary inquiry, both the lead investigator, Det. Sgt. Saunders, and Crown counsel knew that, at trial, counsel for the respondent would raise the adequacy of the police investigation and the involvement of Chung as an alternate suspect as a basis upon which the trier of fact would be invited to have a reasonable doubt about the respondent’s guilt.

The First Trial Date

[67] In June 2007, a judge set January 14, 2008, as the date for the respondent’s trial. The case was not reached on this date.

[68] At the end of January, 2008, Crown counsel asked Saunders about Chung’s status and whereabouts. Saunders told the Crown, and the Crown advised the respondent’s trial counsel, that the police did not know Chung’s location and hadn’t looked for him.

[69] In October or November, 2008, the respondent’s trial counsel asked the Crown again about Chung whom he wanted to call as a witness (under subpoena) to establish that, within months of the killing, Chung had fled the jurisdiction. At the time of the request, the police had done nothing to locate Chung.

The Second Trial Date

[70] The respondent’s trial was rescheduled to begin in early February, 2009. During a pre-hearing conference conducted the week before the trial was scheduled to begin, the trial judge emphasized the need to find Chung and bring him to court for the purpose of the respondent’s motion to permit advancement of the alternate suspect and inadequate investigation issues before the jury. Crown counsel acknowledged that the respondent was entitled to raise the alternate suspect issue, but opposed the respondent’s motion as it related to an inadequate investigation.

[71] Chung was found in another province the day following a police inquiry of a source suggested by trial counsel for the respondent.

Chung’s Refusal to Cooperate

[72] Counsel for the Crown at trial proposed that a statement be taken from Chung by investigators, and turned over to defence counsel for cross-examination on the respondent’s motion to raise the inadequate investigation issue. Chung consulted with his own counsel, then made it clear that he would not provide a statement to police about his activities or connection with the death of the deceased.

[73] The respondent sought and the trial judge ordered the Crown to disclose what efforts had been made to find Chung during the course of the investigation since evidence of these efforts was relevant to the adequacy of the investigation of the alternate suspect.

[74] On February 12, 2009, Chung appeared as a witness on the respondent’s motion. Trial counsel for the respondent cross-examined Chung for four days on the motion.

Chung’s Evidence on the Motion

[75] Chung testified on the respondent’s motion. He denied any involvement in the killing of the deceased and initially declined any knowledge of the persons responsible.

[76] Chung admitted that he had supplied cocaine to the respondent in amounts of between one-half and one kilogram. He described two specific transactions. He acknowledged that he had met a man named “Alex” (the first name of the deceased) once at the Film Lounge, a local nightclub.

[77] At the conclusion of his examination-in-chief by Crown counsel on the motion, Chung responded to an open-ended question by saying that the respondent had admitted to him (Chung) that he (the respondent) had stabbed the deceased to death and got rid of the knife at “Lakeshore Harbourfront”. Chung provided no further details about the time, place, or circumstances of the stabbing.

[78] Chung explained that the respondent confessed to the killing to provide a form of security for Chung for a drug deal in which they had been involved that did not turn out as planned. The deal involved the supply of cocaine to a United States purchaser and payments in cash and pills, but the debt remained unsatisfied. Chung thought he had been set up to take the fall for the killing of the deceased, since it took place so close to Chung’s home, but he continued to keep in contact with the respondent.

The Ruling of the Trial Judge

[79] The trial judge decided that the respondent was entitled to raise the issue of inadequate police investigation and to introduce some investigative hearsay evidence in support of that claim. The judge permitted Crown counsel to introduce relevant investigative hearsay to rebut the respondent’s claim, but rejected the Crown’s request to be permitted to call Chung as a witness and to introduce other evidence in rebuttal derived from Chung’s disclosures.

[80] The trial judge considered three discrete, yet related rules of admissibility in determining whether to admit or exclude the testimony of Chung as well as its derivatives. He considered exclusion under:

i. the common law, and later constitutionalized rule that authorizes the exclusion of evidence, the admission of which would render trial proceedings unfair;

ii. the remedial authority of s. 24(1) of the Charter that permits exclusion of evidence as a just and appropriate remedy where introduction of the evidence would render the trial unfair, and thus offend ss. 7 and 11(d) of the Charter; and

iii. the common law discretion to exclude evidence the prejudicial effect of which exceeds its probative value.

[81] In his lengthy reasons for judgment, the trial judge emphasized that the duties on the police to investigate, and on the Crown to prosecute, must be carried out objectively and reflect the exercise of due diligence to avoid tunnel vision that created the palpable risk of wrongful conviction. The trial judge found that the police had not exercised due diligence in the investigation of Chung as an alternate suspect. The investigation of the case was incomplete, the prospect of its timely completion unknown, and the prejudice to the defence obvious from the lack of opportunity to consider and investigate recently disclosed information.

[82] The trial judge considered the probative value of Chung’s evidence. Among the factors he listed in his assessment were these:

i. that Chung admitted lying under oath on the motion;

ii. that Chung attempted to interfere with the investigation

by counselling others to mislead the police and by destroying his email messages;

iii. that Chung was linked to the murder by motive, opportunity, and other suspicious circumstances;

iv. that Chung’s testimony contained several important inconsistencies;

v. that Chung’s testimony was contradicted by other reliable evidence;

vi. that the manner in which investigators handled Chung after he had been located sparked concerns about a motive on Chung’s part to fabricate allegations;

vii. that parts of Chung’s testimony, such as the alleged confession by the respondent, were inherently unlikely; and

viii. that Chung was a witness of unsavoury character.

[83] The trial judge expressed his conclusion about the probative value of Chung’s evidence in this way:

For these reasons, I am satisfied that Mr. Chung’s evidence is of slight probative value, looking at the anticipated evidence as a whole. It is fragile evidence that is not confirmed by independent evidence. The reasonable inferences to be drawn from it are many and varied, some of which are incriminating and some of which are exculpatory. This testimony raises the spectre of a miscarriage of justice, looking at the anticipated evidence as a whole.

[84] On the issue of prejudicial effect, the trial judge considered that Chung’s evidence raised the prospect of moral and reasoning prejudice and would increase the complexity of the trial through the proliferation of innumerable factual and legal issues. Court time would be wasted. There was a danger of unfair surprise to the defence. And the likelihood of an adjournment to permit the respondent to investigate and contemplate the effect of the new material would render the prosecution vulnerable under s. 11(b) of the Charter.

[85] The trial judge concluded his reasons for exclusion in these terms:

For these reasons, I am satisfied that the just and appropriate remedy is to exclude the testimony, of Mr. Chung, and all of its derivative evidence, to ensure the fairness of the defendant’s trial and to maintain the integrity of the administration of justice and the public confidence in it. The tunnel vision of Inspector Saunders, and others acting under his direction, in this case is evident and palpable. To some extent the original Crown Attorneys are implicated in the tunnel vision and otherwise failed to diligently fulfill their own duties to the administration of justice. See R. v. McNeil, supra. The testimony of Mr. Chung, only available at this late stage through the efforts of the Court and the Crown Attorneys on the record at trial, would, if admitted into evidence, create a risk of a miscarriage of justice. Its probative value is slight and its prejudicial effect is significant. The ongoing investigation of collateral sources of information important to an impartial determination of Mr. Chung’s credibility compromises the ability of the defendant to make full answer and defence. The defence is left in a position where the evidentiary landscape at trial is shifting, without a reasonable opportunity to anticipate the dynamics of the trial and develop a coherent and effective response to it, if one is available. Further late disclosure may lead to a mistrial, and a waste of judicial resources. Any such mistrial may lead to a stay of proceedings under s. 11(b) of the Charter, in a case of murder that should be tried on its merits. In the circumstances of this case, the just and appropriate remedy is to exclude the testimony of Mr. Chung and the evidence derived from it.

The Arguments on Appeal

[86] For the appellant, Mr. Alvaro takes no issue with the trial judge’s determination that the alternate suspect and inadequate investigation issues were properly in play before the jury. He acknowledges that appellate courts are bound to accord substantial deference to decisions of trial judges that involve the exercise of discretion, such as the discretion to exclude relevant, material, and otherwise admissible evidence. He submits, however, that where, as here, the discretion is exercised by taking into account factors or principles that are irrelevant, by failing to consider factors or principles that are relevant, and by failing to give consideration to a remedy short of complete exclusion, the decision of the trial judge is not entitled to deference and warrants appellate intervention.

[87] Mr. Alvaro says that exclusion of evidence is an exceptional remedy when a trial judge exercises trial management authority or grants a remedy for failed or late disclosure. Nothing in this case warranted exclusion on either of these grounds. In a similar way, outright exclusion cannot be justified on the basis that receiving the evidence would compromise trial fairness to such an extent that it would infringe ss. 7 and 11(d) of the Charter. Remedies for Charter infringement under s. 24(1) of the Charter must be just and appropriate in the circumstances of the case and this is neither.

[88] Mr. Alvaro contends that the trial judge erred in law in his:

i. assessment of the probative value of Chung’s evidence;

ii. assessment of the prejudicial effect of Chung’s evidence; and

iii. evaluation of where the balance settled between probative value and prejudicial effect.

[89] In determining the probative value of Chung’s evidence, Mr. Alvaro argues, the trial judge erred by failing to take into account that the evidence:

i. included a “confession” to murder that described the means by which the deceased was killed;

ii. rebutted the position advanced by the respondent that Chung killed the deceased;

iii. confirmed other evidence about the lack of prior contact between Chung and the deceased; and

iv. showed the nature of the relationship between Chung and the respondent and thus, to some extent at least, a common motive to kill the deceased.

[90] Mr. Alvaro says further that the trial judge erred in his assessment of the prejudicial effect of Chung’s evidence. Contrary to what the trial judge concluded, Chung’s evidence did not engender either reasoning or moral prejudice. The trial judge’s conclusion that investigators, to some extent the prosecutors, displayed tunnel vision in failing to fully plumb the involvement of Chung was likewise not a factor to be taken into account in assessing the prejudicial effect of admitting Chung’s evidence.

[91] In addition, Mr. Alvaro argues, the trial judge failed to consider any remedy short of exclusion of the sum of Chung’s testimony and evidence derived from it. To the extent each source of potential exclusion is discretionary, partial exclusion was a viable alternative to which the trial judge paid no heed. He could have excluded the alleged confession or evidence of some post-offence conduct, but permitted Chung to provide details of his whereabouts at the material time and his denial of involvement in the killing. The failure to consider some less sweeping exclusion left the jury with an entirely distorted picture on the alternate suspect issue.

[92] For the respondent, Mr. Wilkinson acknowledges that the trial judge made errors in his probative value/prejudicial effect analysis. The proposed evidence did not engender either moral or reasoning prejudice. But in the end, these erroneous considerations had no impact on the result. Exclusion of Chung’s testimony and its derivatives was a just and appropriate remedy for an inadequate investigation and late disclosure that breached the respondent’s right to make full answer and defence to the charge. No remedy short of complete exclusion could vindicate this constitutional infringement.

[93] Mr. Wilkinson says, further, that the appellant should be estopped from raising this ground of appeal, at all events from obtaining a new trial on this basis, because Crown counsel at trial declined the trial judge’s offer of a mistrial that would have permitted the prosecution to reload and recommence proceedings subject to successful opposition to a motion under s. 11(b) of the Charter. Crown counsel’s decision to decline the offer, a strategic, tactical decision according to Mr. Wilkinson, forecloses the remedy of a new trial sought here.

[94] In the end, Mr. Wilkinson submits, even if the trial judge wrongly excluded the evidence and the Crown is not estopped from seeking a new trial because Crown counsel at trial declined the offer of a mistrial, the verdict would necessarily have been the same. Chung was an unreliable witness whose tale of a barren, unsolicited confession and the circumstances in which it was made was incredible. Admitting the evidence would have produced a different script, but the same ending.

The Governing Principles

[95] Several principles inform the decision in connection with this ground of appeal including but not only the scope of the basis upon which a trial judge may exclude relevant, material, and otherwise admissible evidence on grounds of unfairness, late disclosure, or in accordance with the cost-benefit analysis described in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. There is also the question of whether what is involved here is a question of law alone, cognizable on an appeal by the Crown under s. 676(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46,and the standard and scope of appellate review of a trial judge’s exercise of the exclusionary discretion.

[96] The trial judge’s decision to permit counsel for the respondent at trial to raise the alternate suspect and inadequate investigation issues is not challenged here. That said, some discussion of the principles at work in such cases is of importance in determining whether the ruling on admissibility reflects error.

The Right of Appeal: A Question of Law Alone

[97] In proceedings by indictment, the Crown’s right of appeal from an acquittal entered after trial is limited by the provisions of s. 676(1)(a) of the Criminal Code, to grounds of appeal that involve questions of law alone.

[98] The rules of admissibility, which comprise the chief work of the law of evidence, are rules of law and, by nature, primarily exclusionary. Evidence that is relevant and material, but falls foul of an admissibility rule, is excluded unless it can gain entry by an exception to the exclusionary rule. Decisions on admissibility usually involve questions of law alone, at the very least where the allegation is that the admissibility decision was based on wrong legal principles: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 29.

Exclusion of Evidence to Ensure Trial Fairness: The Common Law Rule

[99] A trial judge has a common law authority to exclude relevant and material evidence on the ground that its admission would render trial proceedings unfair: R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at paras. 21, 23, 41, and 42; R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417, at para. 86. This common law admissibility rule has achieved constitutional status because of the s. 11(d) Charter guarantee of a fair hearing: Harrer, at paras. 23-24.

Exclusion of Evidence to Ensure Trial Fairness: s. 24(1) of the Charter

[100] Where evidence proposed for admission at trial has been obtained in a manner that infringed or denied an accused’s constitutional rights or freedoms, the appropriate exclusionary mechanism is s. 24(2) of the Charter. To invoke s. 24(2) an accused must establish the three requirements of the subsection which can be briefly described as:

• infringement;

• nexus; and

• effects.

The requirements are cumulative. The standard of proof required is proof on a balance of probabilities: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at pp. 276-277; see also R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613; and R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980.

[101] Where evidence has not been obtained by constitutional infringement, however, s. 24(2) of the Charter is unavailable as an exclusionary mechanism. Constitutionally obtained evidence may nonetheless be excluded under the Charter if the introduction of that evidence would render the trial unfair, and thus infringe the fair trial rights of an accused guaranteed by ss. 7 and 11(d) of the Charter. The exclusionary mechanism in such cases is s. 24(1) of the Charter, not s. 24(2): Harrer, at para. 42; White, at para. 89.

[102] Trial fairness is not the exclusive preserve of those charged with crime. A fair trial is a trial that appears fair, not only from the perspective of the accused, the person on trial, but also from the perspective of the community: Harrer, at para. 45; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 22. A fair trial is a trial that satisfies the public interest at getting at the truth, but at the same time preserves basic procedural fairness for the accused: Harrer, at para. 45.; Bjelland, at para. 22.

[103] The remedy of evidentiary exclusion under s. 24(1) is not for the asking. An accused who seeks this remedy must establish a breach of his or her Charter rights: the right to a fair trial in accordance with ss. 7 and 11(d) of the Charter. The remedy of evidentiary exclusion under s. 24(1), like any of the panoply of remedies available under the subsection, is subject to the controlling language of the provision: evidentiary exclusion must be “appropriate and just in the circumstances”. Evidentiary exclusion is only available as a remedy under s. 24(1) in those cases where a less intrusive remedy cannot be fashioned to safeguard the fairness of the trial process and the integrity of the justice system: Bjelland, at para. 19.

Exclusion of Evidence under the Trial Management Power

[104] Trial judges have an expansive, but not unbounded authority to manage the conduct of criminal trial proceedings to promote the efficient use of court time and to ensure fair treatment of all parties involved in the proceedings: R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), 180 C.C.C. (3d) 498 (Ont. C.A.), at paras. 37 and 57. However, excluding relevant, material, and otherwise admissible evidence under the trial management power is an unusual exercise of that power. Evidentiary exclusion should be reserved for cases in which it is plain and obvious that the circumstances require evidentiary exclusion and that the usual remedies, like a brief adjournment, will not be adequate: R. v. Horan, 2008 ONCA 589, 237 C.C.C. (3d) 514, at para. 33.

Evidentiary Exclusion as a Remedy for Late Disclosure

[105] The Crown’s obligation to make timely disclosure to an accused of all relevant information in its possession is well established at common law and now constitutionally entrenched in the right to make full answer and defence under the Charter: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 14. As a necessary corollary to the Crown’s disclosure duty under R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, the police (or other investigating state authority) have an obligation to disclose to the Crown all material pertaining to its investigation of the accused: McNeil, at para. 15.

[106] Under our system of law enforcement, the general duty to investigate allegations of criminal conduct falls upon the police. The fruits of a criminal investigation, it follows, are gathered by the police who also determine, often with the benefit of legal advice from the Crown, whether criminal charges will be laid. The Crown obtains the fruits of the investigation because of the corollary duty of police investigators to disclose to the Crown all relevant material in their possession: McNeil, at para. 23.

[107] It does not follow from the disclosure obligations imposed upon the Crown, or the correlative duty imposed upon the police to turn over their fruits of the investigation to the Crown, however, that an accused is entitled to a particular kind of disclosure or assured of a specific form of investigation.

[108] The disclosure obligations of the Crown do not require the production of witnesses for discovery, for example by calling them as witnesses at a preliminary inquiry: R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, at para. 23; R. v. Khela, 1995 CanLII 46 (SCC), [1995] 4 S.C.R. 201, at para. 18. Nor does an accused have a constitutional right, as an incident of the right to make full answer and defence or otherwise, to an adequate police investigation of the crime with which she or he is charged: R. v. Darwish, 2010 ONCA 124, (2010), 103 O.R. (3d) 561, at para. 29; R. v. Barnes, 2009 ONCA 432, at para. 1. Further, an accused has no constitutional right to direct the conduct of a police investigation of which she or he is the target or, through a disguised disclosure demand, conscript the police to undertake investigatory work for him or her: Darwish, at para. 30; R. v. Schmidt, 2001 BCCA 3, 151 C.C.C. (3d) 74 (B.C.C.A.), at para. 19. On the other hand, the police and Crown should give serious consideration to investigative requests made on behalf of an accused: Darwish, at para. 30. That said, it is the prosecutorial authorities, not the defence, that bear the ultimate responsibility for determining the course of the investigation: Darwish, at para. 30.

[109] The disclosure right of an accused does not extend so far as to require the police to investigate potential defences: Darwish, at para. [31](https://www.canlii.org/en/on/onca/doc/2010/2010onca124/2010onca124.html#