Her Majesty the Queen v. Welsh; Her Majesty the Queen v. Pinnock; Her Majesty the Queen v. Robinson

[Indexed as: R. v. Welsh]

Ontario Reports

Court of Appeal for Ontario,

Rosenberg, Sharpe and MacFarland JJ.A.

April 2, 2013

115 O.R. (3d) 81 | 2013 ONCA 190

Case Summary

Charter of Rights and Freedoms — Equality rights — Accused making incriminating statements to undercover police officer posing as Obeah spiritual advisor — Undercover operation not violating equality rights of accused — Accused targeted because suspects in homicide not based on race or religion — Admission of statements not bringing administration of justice into disrepute even if operation violated s. 15 of Charter — Any infringement on accused's Charter rights trivial and insubstantial — Canadian Charter of Rights and Freedoms, ss. 15, 24(2).

Charter of Rights and Freedoms — Freedom of religion — Accused making incriminating statements to undercover police officer posing as Obeah spiritual advisor — Neither accused testifying on voir dire regarding their beliefs — Accused having weak and recent belief in Obeah and involvement with Obeah to obstruct investigation and prosecution not for religious needs or purpose — Undercover operation not interfering with right of accused to freedom of religion in manner that was non-trivial and substantial — Undercover operation not violating s. 2(a) of Charter — Admission of statements not bringing administration of justice into disrepute even if operation violated s. 2(a) — Canadian Charter of Rights and Freedoms, ss. 2(a), 24(2).

Charter of Rights and Freedoms — Fundamental justice — Accused making incriminating statements to undercover police officer posing as Obeah spiritual advisor — Section 7 of Charter not engaged as accused were not detained or in situation tantamount to detention at time of undercover operation — Canadian Charter of Rights and Freedoms, s. 7.

Criminal law — Evidence — Exclusion — Dirty tricks — Accused making incriminating statements to undercover police officer posing as Obeah spiritual advisor — Trial judge correctly finding that statements should not be excluded under dirty tricks doctrine — Accused not in custody and undercover officer not person in authority — Accused's corrupt purpose undermines any religious element in relationship and communications not for religious or spiritual purpose — Admission of statements not shocking conscience of community or bringing administration of justice into disrepute.

Criminal law — Evidence — Privilege — Accused making incriminating statements to undercover police officer posing as Obeah spiritual advisor — Accused participating in Obeah sessions in attempt to escape detection and prosecution for murder — Statements not attracting protection of common law privilege — Accused motivated in communications by desire to obstruct investigation and prosecution not to pursue [page82 ]religious rite — Communication not taking place in relationship community would foster and injury in suppressing communication would do greater harm than benefit of protecting the Obeahman-adherent relationship.

Criminal law — Procedure — Severance — W, P and R tried jointly and convicted of first degree murder — R and P making incriminating statements to undercover police officer posing as Obeah spiritual advisor — Trial judge not erring in refusing to sever trial of W — Trial judge minimizing risk of prejudice to W by editing statements, instructing jury emphatically about proper use of evidence and dealing with each accused separately in charge to jury.

Criminal law — Trial — Accused's right to be present — Witness changing his story and implicating accused in murder during pre-trial meeting with Crown counsel and police officer — Crown counsel taking notes of meeting but no tape or video record made of interview — Defence applying for stay of proceedings or other remedy based on circumstances surrounding witness' change of story and seeking disclosure of Crown counsel's notes — Crown claiming work product privilege in notes — Trial judge reviewing notes in camera in absence of defence counsel to determine if they were subject to work product privilege and asking Crown counsel to attend to explain certain aspects of notes — Defence consenting to procedure but in camera proceeding supposed to be limited to determination of whether privilege applying — Trial judge then informing defence counsel that he had found that Crown counsel had not improperly pressured witness to change his story — In camera hearing violating right of accused under s. 684 of Code to be present during trial to extent that trial judge went beyond issue of privilege and considered merits of stay application — Curative proviso applying — Trial judge recognizing that he had erred in making findings at in camera hearing with respect to improper pressure on witness and informing defence counsel that he would disabuse himself of those premature conclusions — Transcript of hearing and Crown counsel's notes of meeting with witness disclosed to defence — Defence offered opportunity to cross-examine Crown but not doing so — Accused not prejudiced by exclusion from in camera hearing — Trial judge's actions not giving rise to reasonable apprehension of bias — Criminal Code, R.S.C. 1985, c. C-46, s. 684.

P, R and W were convicted of first degree murder. The deceased was shot. Forensic evidence indicated that four different firearms were used. No murder weapons were found. The Crown alleged that W was one of the four shooters, that P planned the murder with W and acted as a lookout, and that R delivered a gun to W and acted as a lookout and getaway driver. The Crown alleged that the motive for the murder was family revenge for an earlier murder. The victim's girlfriend M, who was with him at the time of the shooting, initially told the police that she did not see the killers but subsequently changed her story and identified W as one of the shooters. R's best friend B testified that he was present at the murder scene with R and that he saw both W and P. B had initially told the police, and testified at the preliminary hearing, that he and R went to the scene of the murder to make a drug deal. During a pre-trial interview with Crown counsel, S, and a police officer, he changed his story. The interview was not recorded by video or audiotape, but S made notes. Defence counsel at trial brought an application for a stay of proceedings based on the circumstances [page83 ]surrounding B's change of story, and sought disclosure of S's notes. The Crown objected to their disclosure, arguing that the notes were covered by work product privilege. The trial judge reviewed the notes in camera to determine if they were subject to work product privilege. He asked S to attend to clarify certain issues surrounding the notes. He then returned to the courtroom and informed defence counsel that he was satisfied that S had not placed any improper pressure on B to change his story. Defence counsel sought a mistrial and renewed the stay of proceedings application. The trial judge acknowledged that he had erred in finding, at the in camera hearing, that S had not pressured B to change his story, and assured defence counsel that he would be able to disabuse himself of that premature conclusion. A transcript of the in camera hearing and S's notes of the interview with B were disclosed to the defence, and the defence was given an opportunity to cross-examine S, but declined to do so. The case for the Crown also included statements made by R and P to an undercover police officer posing as an Obeah spiritual advisor. The trial judge found that the undercover operation did not violate the rights of R and P under s. 2(a) or s. 15 of the Canadian Charter of Rights and Freedoms and that the statements did not attract the protection of common law privilege. He refused to sever the trial of W, against whom the statements were not admissible. The accused appealed their conviction.

Held, the appeal should be dismissed.

The trial judge did not err in finding that the undercover operation did not violate the right of R and P to freedom of religion under s. 2(a) of the Charter. To the extent that the operation implicated freedom of religion, any interference with that freedom was trivial or insubstantial. The evidence that R held a sincere belief in Obeah was tenuous and the trial judge found as a fact that P lacked such a belief. Their purpose in attending the Obeah sessions was to seek protection from the justice system and to cause harm to the authorities who sought to prosecute and convict them for murder. There was no evidence that either accused communicated with the undercover officer to satisfy or fulfill some spiritual need or purpose. Any religious element in the Obeah sessions was properly characterized as trivial, insubstantial and dwarfed by the corrupt motives that induced the accused to participate in and fall for the elaborate scheme of deception practised upon them.

The trial judge did not err in finding that the undercover operation did not violate R and P's equality rights under s. 15 of the Charter. R and P were not singled out or targeted by the police or otherwise treated differently on the basis of their race or religion. Their black, Jamaican heritage made them vulnerable to the Obeah sting, but they were singled out for the investigation because they were suspected of murder, not because of their race or religion.

If the undercover operation did violate s. 2(a) and/or s. 15 of the Charter, the statements should nevertheless not have been excluded under s. 24(2) of the Charter. The police acted in good faith and reasonably believed that the operation was Charter-compliant. The impact of the breach on the Charter-protected interests of the accused was at the low end of the scale. The impugned police conduct did not encourage or carry a significant risk of unreliability, and the evidence gathered was entirely consistent with that of other witnesses and cellphone records. The truth-seeking function of the trial would clearly be served by admitting the evidence.

The trial judge did not err in finding that the statements to the undercover officer did not attract the protection of common law privilege. The trial judge found that R and P had an expectation of confidentiality. As R and P did not testify as to any such expectation, that finding was generous. The motivation of R and [page84 ]P in participating in the Obeah sessions was not sincere participation in a religious rite or service, but rather an attempt to escape detection and prosecution for a serious offence. The harm to the public interest that would result from suppressing the evidence far outweighed any harm to the "Obeahman-adherent" relationship.

The trial judge did not err in concluding that the Obeah statements should not be excluded under the dirty tricks doctrine or as a violation of s. 7 of the Charter. Section 7 of the Charter was not engaged as the accused were not detained or in circumstances tantamount to detention at the time of the undercover operation. To the extent that the dirty tricks doctrine is tied to the common law rules relating to voluntary confessions, the undercover officer was not a person in authority. R and P's corrupt purpose significantly undermined any religious element there might have been in their relationship with the undercover officer. Admitting the Obeah statements would not shock the conscience of the community or bring the administration of justice into disrepute.

The trial judge committed no errors in his charge to the jury with respect to the Obeah evidence.

To the extent that the trial judge went beyond the issue of work product privilege and considered the merits of the stay application at the in camera hearing, the right of the accused under s. 650 of the Code to be present throughout the trial was violated. However, this was an appropriate case for the application of the curative provisions of s. 686(1) (b)(iv) of the Code. The accused were not prejudiced by their exclusion from the in camera hearing, having regard to the remedial steps taken by the trial judge at the time, including providing the transcript of the hearing, disclosing a portion of the notes and offering the opportunity to cross-examine Crown counsel S, which they chose not to do. The trial judge's actions did not give rise to a reasonable apprehension of bias.

The trial judge did not err in refusing to sever W's trial. He resorted to several methods to minimize the prejudice to W. He substantially edited the statements which were not admissible against W, gave the jury simple but emphatic instructions about the proper use of evidence and adopted the device of dealing with each accused separately in the charge to the jury.

Cases referred to

R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 245 C.C.C. (3d) 1, EYB 2009-161617, J.E. 2009-1379, 66 C.R. (6th) 1, 193 C.R.R. (2d) 1, 391 N.R. 1, 253 O.A.C. 124; R. v. Gruenke, 1991 40 (SCC), [1991] 3 S.C.R. 263, [1991] S.C.J. No. 80, 130 N.R. 161, [1991] 6 W.W.R. 673, J.E. 91-1647, 75 Man. R. (2d) 112, 67 C.C.C. (3d) 289, 8 C.R. (4th) 368, 7 C.R.R. (2d) 108, 14 W.C.B. (2d) 219; R. v. Rothman, 1981 23 (SCC), [1981] 1 S.C.R. 640, [1981] S.C.J. No. 55, 121 D.L.R. (3d) 578, 35 N.R. 485, 59 C.C.C. (2d) 30, 20 C.R. (3d) 97, 25 C.R. (3d) 97, 5 W.C.B. 479, apld

R. v. Rowe, 2006 14235 (ON CA), [2006] O.J. No. 1752, 209 O.A.C. 50, 208 C.C.C. (3d) 412, 69 W.C.B. (2d) 275 (C.A.), distd

R. v. Guimond, 1979 204 (SCC), [1979] 1 S.C.R. 960, [1979] S.C.J. No. 16, 94 D.L.R. (3d) 1, 26 N.R. 91, 44 C.C.C. (2d) 481, 8 C.R. (3d) 185; R. v. McIntyre, 1994 95 (SCC), [1994] 2 S.C.R. 480, [1994] S.C.J. No. 52, 168 N.R. 308, 153 N.B.R. (2d) 161, 23 W.C.B. (2d) 582; R. v. Olah (1997), 1997 3023 (ON CA), 33 O.R. (3d) 385, [1997] O.J. No. 1579, 100 O.A.C. 1, 115 C.C.C. (3d) 389, 34 W.C.B. (2d) 395 (C.A.); R. v. Osmar (2007), 84 O.R. (3d) 321, [2007] O.J. No. 244, 2007 ONCA 50, 220 O.A.C. 186, 217 C.C.C. (3d) 174, 44 C.R. (6th) 276, 150 C.R.R. (2d) 301, 73 W.C.B. (2d) 98, consd [page85 ]

Other cases referred to

Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567, [2009] S.C.J. No. 37, 2009 SCC 37, 310 D.L.R. (4th) 193, [2009] 9 W.W.R. 189, J.E. 2009-1407, EYB 2009-161892, 390 N.R. 202, 9 Alta. L.R. (5th) 1, 81 M.V.R. (5th) 1, 460 A.R. 1, 179 A.C.W.S. (3d) 327; Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319, [2006] S.C.J. No. 39, 2006 SCC 39, 270 D.L.R. (4th) 257, 352 N.R. 201, J.E. 2006-1723, 47 Admin. L.R. (4th) 84, 51 C.P.R. (4th) 1, 40 C.R. (6th) 1, 150 A.C.W.S. (3d) 401, EYB 2006-109504; Bruker v. Marcovitz, [2007] 3 S.C.R. 607, [2007] S.C.J. No. 54, 2007 SCC 54, J.E. 2008-68, 52 C.C.L.T. (3d) 1, 46 R.F.L. (6th) 1, 370 N.R. 1, 162 A.C.W.S. (3d) 940, 288 D.L.R. (4th) 257, EYB 2007-127332, 166 C.R.R. (2d) 36; Canadian Civil Liberties Assn. v. Ontario (Minister of Education) (1990), 1990 6881 (ON CA), 71 O.R. (2d) 341, [1990] O.J. No. 104, 65 D.L.R. (4th) 1, 37 O.A.C. 93, 46 C.R.R. 316, 19 A.C.W.S. (3d) 355 (C.A.); Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118, 68 D.L.R. (3d) 716, 9 N.R. 115; General Accident Assurance Co. v. Chrusz (1999), 1999 7320 (ON CA), 45 O.R. (3d) 321, [1999] O.J. No. 3291, 180 D.L.R. (4th) 241, 124 O.A.C. 356, 38 C.P.C. (4th) 203, 92 A.C.W.S. (3d) 26 (C.A.); Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, [2000] S.C.J. No. 66, 2000 SCC 69, 193 D.L.R. (4th) 193, 263 N.R. 203, [2001] 2 W.W.R. 1, J.E. 2001-49, 145 B.C.A.C. 1, 83 B.C.L.R. (3d) 1, 28 Admin. L.R. (3d) 1, 150 C.C.C. (3d) 1, 38 C.R. (5th) 209, 79 C.R.R. (2d) 189, 5 T.T.R. (2d) 161, 101 A.C.W.S. (3d) 732, 48 W.C.B. (2d) 76, REJB 2000-21529; Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, [2006] S.C.J. No. 6, 2006 SCC 6, 264 D.L.R. (4th) 577, 345 N.R. 201, J.E. 2006-508, 38 Admin. L.R. (4th) 159, 137 C.R.R. (2d) 326, 145 A.C.W.S. (3d) 1046, 55 C.H.R.R. D/463; R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22, 148 N.R. 241, J.E. 93-466, 61 O.A.C. 1, 79 C.C.C. (3d) 257, 19 C.R. (4th) 1, 18 W.C.B. (2d) 588; R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599, [1993] S.C.J. No. 69, 104 D.L.R. (4th) 180, 154 N.R. 245, J.E. 93-1203, 64 O.A.C. 165, 82 C.C.C. (3d) 310, 21 C.R. (4th) 277, 20 W.C.B. (2d) 131; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, [1985] S.C.J. No. 17, 18 D.L.R. (4th) 321, 58 N.R. 81, [1985] 3 W.W.R. 481, 37 Alta. L.R. (2d) 97, 60 A.R. 161, 18 C.C.C. (3d) 385, 85 CLLC Â14,023 at 12108, 13 C.R.R. 64, 14 W.C.B. 157; R. v. Cloutier, 1988 199 (ON CA), [1988] O.J. No. 570, 27 O.A.C. 246, 43 C.C.C. (3d) 35, 4 W.C.B. (2d) 300 (C.A.) [leave to appeal to S.C.C. refused [1989] S.C.C.A. No. 194, 104 N.R. 160n, 37 O.A.C. 320n, 50 C.C.C. (3d) vi]; R. v. Edwards Books & Art Ltd., 1986 12 (SCC), [1986] 2 S.C.R. 713, [1986] S.C.J. No. 70, 35 D.L.R. (4th) 1, 71 N.R. 161, J.E. 87-82, 19 O.A.C. 239, 30 C.C.C. (3d) 385, 87 CLLC Â14,001 at 12001, 55 C.R. (3d) 193, 28 C.R.R. 1, 1 W.C.B. (2d) 19; R. v. Grandinetti, [2005] 1 S.C.R. 27, [2005] S.C.J. No. 3, 2005 SCC 5, 247 D.L.R. (4th) 385, 329 N.R. 28, [2005] 4 W.W.R. 405, J.E. 2005-265, 37 Alta. L.R. (4th) 197, 363 A.R. 1, 191 C.C.C. (3d) 449, 25 C.R. (6th) 1; R. v. Hart, [2012] N.J. No. 303, 2012 NLCA 61, 327 Nfld. & P.E.I.R. 178, 267 C.R.R. (2d) 29, 97 C.R. (6th) 16; R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, 110 N.R. 1, [1990] 5 W.W.R. 1, J.E. 90-990, 47 B.C.L.R. (2d) 1, 57 C.C.C. (3d) 1, 77 C.R. (3d) 145, 49 C.R.R. 114, 10 W.C.B. (2d) 435; R. v. Hertrich, 1982 3307 (ON CA), [1982] O.J. No. 496, 137 D.L.R. (3d) 400, 67 C.C.C. (2d) 510, 7 W.C.B. 478 (C.A.); R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449, [1998] S.C.J. No. 66, 163 D.L.R. (4th) 577, 230 N.R. 1, J.E. 98-1956, 113 O.A.C. 97, 127 C.C.C. (3d) 449, 18 C.R. (5th) 135, 39 W.C.B. (2d) 391; R. v. Jones, 1986 32 (SCC), [1986] 2 S.C.R. 284, [1986] S.C.J. No. 56, 31 D.L.R. (4th) 569, 69 N.R. 241, [1986] 6 W.W.R. 577, J.E. 86-992, 47 Alta. L.R. (2d) 97, 73 A.R. 133, 28 C.C.C. (3d) 513, 25 C.R.R. 63, 17 W.C.B. 367; R. v. Khan, 1998 27756 (MB CA), [1998] M.J. No. 324, 129 Man. R. (2d) 32, 126 C.C.C. (3d) 353, 17 C.R. (5th) 221, 39 W.C.B. (2d) 92 (C.A.); R. v. Last, [2009] 3 S.C.R. 146, [2009] S.C.J. No. 45, 2009 SCC 45, EYB 2009-164847, J.E. 2009-1893, 247 C.C.C. (3d) 449, 394 N.R. 78, 311 D.L.R. (4th) 193, 69 C.R. (6th) 1, 255 O.A.C. 334; R. v. Laws (1998), 1998 7157 (ON CA), 41 O.R. (3d) 499, [1998] O.J. No. 3623, 165 D.L.R. (4th) 301, 112 O.A.C. 353, 128 C.C.C. (3d) 516, 18 C.R. (5th) 257, 56 C.R.R. (2d) 1, 39 W.C.B. (2d) 501 (C.A.); [page86 ]R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333, [1993] S.C.J. No. 127, 161 N.R. 161, J.E. 93-1895, 14 Alta. L.R. (3d) 1, 145 A.R. 321, 86 C.C.C. (3d) 97, 25 C.R. (4th) 137, 21 W.C.B. (2d) 369; R. v. Medina, [1988] O.J. No. 2348 (H.C.J.); R. v. Miller (1991), 1991 2704 (ON CA), 5 O.R. (3d) 678, [1991] O.J. No. 2010, 50 O.A.C. 282, 68 C.C.C. (3d) 517, 9 C.R. (4th) 347, 14 W.C.B. (2d) 366 (C.A.); R. v. Oickle, [2000] 2 S.C.R. 3, [2000] S.C.J. No. 38, 2000 SCC 38, 190 D.L.R. (4th) 257, 259 N.R. 227, J.E. 2000-1846, 187 N.S.R. (2d) 201, 147 C.C.C. (3d) 321, 36 C.R. (5th) 129, 47 W.C.B. (2d) 247; R. v. Rose (1998), 1998 768 (SCC), 40 O.R. (3d) 576, [1998] 3 S.C.R. 262, [1998] S.C.J. No. 81, 166 D.L.R. (4th) 385, 232 N.R. 83, 115 O.A.C. 201, 129 C.C.C. (3d) 449, 20 C.R. (5th) 246, 57 C.R.R. (2d) 219, 40 W.C.B. (2d) 192; R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84, 118 C.C.C. (3d) 353, 10 C.R. (5th) 1, 151 D.L.R. (4th) 193; R. v. Sauvé, 2004 9054 (ON CA), [2004] O.J. No. 248, 182 O.A.C. 58, 182 C.C.C. (3d) 321, 60 W.C.B. (2d) 414 (C.A.); R. v. Singh, [2007] 3 S.C.R. 405, [2007] S.C.J. No. 48, 2007 SCC 48, 285 D.L.R. (4th) 583, 369 N.R. 1, [2008] 1 W.W.R. 191, J.E. 2007-2037, 73 B.C.L.R. (4th) 1, 163 C.R.R. (2d) 280, 225 C.C.C. (3d) 103, 51 C.R. (6th) 199, 249 B.C.A.C. 1, 75 W.C.B. (2d) 420, EYB 2007-125351; R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811, [1982] S.C.J. No. 40, 136 D.L.R. (3d) 89, 41 N.R. 606, [1983] 1 W.W.R. 193, J.E. 82-563, 67 C.C.C. (2d) 1, 27 C.R. (3d) 304, 7 W.C.B. 477; Ross v. New Brunswick School District No. 15, 1996 237 (SCC), [1996] 1 S.C.R. 825, [1996] S.C.J. No. 40, 133 D.L.R. (4th) 1, 195 N.R. 81, 171 N.B.R. (2d) 321, 37 Admin. L.R. (2d) 131, 96 CLLC Â230-020, 35 C.R.R. (2d) 1, 62 A.C.W.S. (3d) 266, J.E. 96-739, EYB 1996-80080; Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, [2004] S.C.J. No. 46, 2004 SCC 47, 241 D.L.R. (4th) 1, 323 N.R. 59, J.E. 2004-1354, 121 C.R.R. (2d) 189, 28 R.P.R. (4th) 1, 132 A.C.W.S. (3d) 170; Zylberberg v. Sudbury Board of Education (Director) (1988), 1988 189 (ON CA), 65 O.R. (2d) 641, [1988] O.J. No. 1488, 52 D.L.R. (4th) 577, 29 O.A.C. 23, 34 C.R.R. 1, 11 A.C.W.S. (3d) 368 (C.A.)

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 1, 2(a), 7, 15, 24(2)

Criminal Code, R.S.C. 1985, c. C-46, ss. 650(1) [as am.], (2)(b), 686(1)(b)(iv)

Lord's Day Act

Authorities referred to

Bryant, Alan W., Sidney N. Lederman and Michelle K. Fuerst, The Law of Evidence in Canada, 3rd ed. (Markham, Ont.: LexisNexis, 2009)

Hogg, Peter W., Constitutional Law of Canada, 5th ed., looseleaf (Toronto: Carswell, 2007)

Wigmore, John Henry, Evidence in Trials at Common Law, vol. 8, McNaughton Revision (Boston: Little, Brown, 1961)

APPEAL by the accused from the conviction entered on February 15, 2008 by T. O'Connor J. of the Superior Court of Justice, sitting with a jury.

Dirk Derstine and Ariel Herscovitch, for Ruben Pinnock.

David Bayliss and Anik Morrow, for Evol Robinson.

Philip Campbell, for Jahmar Welsh.

Holly Loubert, Alex Hrybinsky and Benita Wassenaar, for respondent.

Virginia Nelder, for intervenor African Canadian Legal Clinic.

Jason MacLean, for intervenor Canadian Civil Liberties Association. [page87 ]

The judgment of the court was delivered by

[1] ROSENBERG and SHARPE JJ.A.: — Ruben Pinnock, Evol Robinson and Jahmar Welsh appeals their convictions for the first degree murder of Youhan Oraha, who was shot and killed in a Brampton parking lot near his car shortly after 10:00 p.m. on the evening of October 9, 2004.

[2] Oraha died of multiple gunshot wounds to his head, chest and abdomen. The autopsy revealed 29 bullet wounds and the police found 28 cartridge casings in the parking lot. Forensic evidence indicated that four different firearms were used. No murder weapons were found. It was agreed at trial that the circumstances of Oraha's death were planned and deliberate.

[3] The Crown's theory was that eight individuals, four of whom were shooters, were involved in the murder. The Crown alleged that Welsh was one of the four shooters, that Pinnock planned the murder with Welsh and acted as a lookout, and that Robinson delivered a gun to Welsh and acted as a lookout and getaway driver. The other alleged shooters and participants in the murder were not identified.

[4] The Crown alleged that the motive for the murder was family revenge for the murder of Shemaul Cunningham a month earlier. Cunningham was shot while driving Welsh's car on Highway 401. Oraha was a suspect in the Cunningham murder. The Cunningham murder was preceded by the murder of Adrian Baptiste, who was shot and killed in Toronto in December 2003 at the wheel of Oraha's parked car. At the time of trial, no charges had been laid in either the Cunningham or Baptiste murder.

[5] Welsh and his younger brother Robinson are the sons of Colette Robinson. Pinnock was Welsh's friend and considered to be like a nephew to Colette Robinson. Cunningham had been Welsh's best friend and very close to Colette Robinson.

[6] The key evidence against the appellants was:

Oraha's girlfriend, Lasharn McLean, who was with him at the time of the murder, identified Welsh as one of the shooters;

Andrew Brown, Robinson's best friend, testified that he was present at the murder scene with Robinson and that he saw both Welsh and Pinnock;

there were video and audio tapes of Robinson and Pinnock making incriminating statements to an undercover policeman posing as an Obeah spiritual advisor; [page88 ]

cellphone records were used to trace the appellants' movements and calls made during the evening of October 9;

a car matching the description of Welsh's car was identified near the scene of the murder.

[7] None of the appellants testified. Through his counsel, Robinson conceded that he was present at the scene and advanced a case of manslaughter.

[8] The appellants advance several grounds of appeal. The four principal grounds of appeal are that

the incriminating statements made by Robinson and Pinnock to the undercover police officer should not have been admitted;

the fairness of the trial was tainted by an in camera proceeding conducted by the trial judge, in which the trial judge met privately with Crown counsel to discuss an issue of privilege arising from the Crown's interview of Andrew Brown on the eve of trial;

the trial judge erred by refusing to sever the trial of Welsh, against whom the Obeah statements were not admissible; and

the trial judge erred by allowing the Crown to advance in closing submissions to the jury the speculative proposition that Pinnock had "called out the shooters".

[9] For the following reasons, we would dismiss the appeals.

Facts

[10] We propose to review the facts on an issue-by-issue basis but will begin with an outline of the essentials of the Crown's case.

The Crown's theory at trial

[11] The Crown submitted that on the evening of the murder, Welsh and Pinnock learned of Oraha's whereabouts. They drove to Brampton, found Oraha's parked car and planned the murder. Welsh called his brother Robinson and asked to bring him his car and a gun. Pinnock called reinforcements. Robinson drove Welsh's car to the scene with Brown and gave Welsh a gun. Brown got into a van with Pinnock and acted as lookout. A second car carrying reinforcements arrived. Eight people lay in wait. When Oraha appeared, four shooters killed him. [page89 ]

[12] It was an agreed fact that Oraha was a drug trafficker immersed in the criminal subculture and an active member of the No Love Vice Lord Bloods street gang. The Crown advanced the theory that Colette Robinson, her sons Welsh and Robinson, and their friend Pinnock wanted revenge for the Cunningham murder and that they thought that Oraha was the killer.

Lasharn McLean

[13] Oraha had been staying for about a month with his girlfriend, Lasharn McLean, at McLean's mother's townhouse in the Franklin Court complex near the intersection of Lisa St. and Clark Blvd. in Brampton. McLean testified that she and Oraha left the townhouse shortly after 10:00 p.m. on October 9, 2004 carrying two bags and a flashlight. They proceeded to Oraha's car, parked in a lot on the other side of Clark Blvd. They observed that the front licence plate was partly hanging off. Oraha went to the back of the car to check the rear plate. McLean remained crouched down at the front of the car. When she got up, she saw Welsh, whom she knew, approaching the car. He was crouched down with his arm extended and had a black object in his hand. McLean was approximately ten to 15 feet away from Welsh and she saw his face for about three seconds. She fled the scene as the shooting began. She heard 15 to 20 gunshots and flagged down a passing driver who took her to the police station. Earlier that evening, she and Oraha had seen a young black man surreptitiously observing them while they sat outside the townhouse.

[14] Initially, McLean told the police that she did not see the shooters but after she learned that Oraha was dead, she identified Welsh. The defence strongly challenged McLean's credibility on a number of points, including the change in her story to the police, the reason she offered for that change and an allegation of sexual assault she had made several years earlier. The defence also argued that her description of the shooting was undermined by the actual location of the bags she claimed to have tripped over as she fled the scene.

Andrew Brown

[15] The other key Crown witness was Andrew Brown, who was 17 at the time of the murder. Brown was Robinson's best friend and had been living at the Robinson residence for several weeks prior to the murder.

[16] Brown testified that on the night of the murder, Robinson told him that he was going to Brampton to meet his brother Welsh. Brown asked if he could get a ride. Robinson drove [page90 ]Welsh's black Cavalier at high speed and took several cellphone calls on the way.

[17] When they arrived at Lisa St., they drove up to a "grey-ish" van. Pinnock and Welsh were in the van. Welsh asked Brown to get out of the car and into the van. Welsh switched places with Brown. As he did so, Brown saw the bottom of Welsh's shirt go up and down while Welsh's back was to him. Pinnock drove the van behind the building and then asked Brown to drive the van out of the parking lot across Clark Blvd. back to the townhouse complex. While Brown did so, Pinnock was in the rear of the van using a cellphone. When they arrived back at Lisa St., Pinnock resumed his position in the driver's seat. Welsh's Cavalier was now parked nose-out in a different parking spot. Pinnock used his cellphone either to make or receive a call. Brown saw another car pull in and then pull out.

[18] After about 20-30 minutes, Brown saw at least three people running towards another car. He then heard gunshots. After the shots, he saw people running back. The Cavalier left the parking lot with Robinson driving and Welsh in the passenger seat. Pinnock drove the van out of the parking lot, behind the Cavalier. An area resident described cars pulling out and heading down Lisa and then along Clark, seemingly towards Highway 410: they were "trying to get out in a hurry". Brown lost sight of the Cavalier on the way. He thought that Pinnock received a short phone call when they were on Highway 401.

[19] When Pinnock and Brown returned to the Robinson residence, Robinson and Welsh were there. After Pinnock and Welsh left, Robinson and Brown watched a television broadcast about the murder. Robinson told Brown that the victim of the murder was responsible for the murder of Shemaul Cunningham. Robinson and Brown discussed the events of the evening and Robinson told Brown that when Welsh got into the car, he asked Robinson to hand him a gun. On cross-examination, Brown agreed that Robinson also told him that Robinson did not know that a murder had been planned and that he did not know that there was a gun in the car before he arrived at the scene.

[20] The defence strongly challenged Brown's credibility. He had a criminal record and was clearly fearful of the police and of being implicated in a murder prosecution. From the time he was first interviewed by the police, he had given various conflicting accounts as to what occurred on the night of the murder. His testimony at trial was very different from what he had earlier told the police and from his testimony at the preliminary hearing. Before trial, he insisted that he believed the purpose of Robinson's trip to the scene of the murder was to make a drug deal. He [page91 ]changed his story shortly before the trial during an interview with Crown counsel.

The Obeah statements

[21] Obeah describes a system of spiritual and mystical beliefs practised in Jamaica and other black communities of the West Indies. The police learned that Colette Robinson, mother of Evol Robinson and Jahmar Welsh, believed in spirits and that she thought Shemaul Cunningham's ghost was around her house. An undercover police officer, Andrew Cooper, posing as an Obeahman called "Leon". He befriended Ms. Robinson and held himself out as possessing mystical powers and as capable of providing protection from the justice system (the "Babylon system") and the police (the "beast" or "beastman"). He told Ms. Robinson that a good spirit, Shemaul Cunningham, was in conflict with a bad spirit, Youhan Oraha (referred to as "the white boy") and that the bad spirit was seeking revenge against the Robinson family. Cooper carried out elaborate ruses to demonstrate his powers, including placing a dead crow on the doorstep of the Robinson home and arranging for a police officer to feign illness during a fake traffic stop of Ms. Robinson. "Leon" also met with Robinson and Pinnock and insisted in his meetings with Ms. Robinson and the two appellants that he had to know the full details of the incident that "created" the evil spirit to be able to protect them.

[22] Cooper had several meetings and telephone calls with Ms. Robinson from February to May 2005. The meetings with her and his subsequent ten meetings with Robinson and two meetings with Pinnock were mostly conducted in hotel rooms where they were surreptitiously videotaped. Telephone calls were audiotaped. In those meetings, both Robinson and Pinnock made statements implicating themselves and Welsh in the murder.

Cellphone records

[23] The appellants were each linked to a cellphone. On the night of the murder, there were many calls between the three appellants. The murder occurred shortly after 10:00 p.m. The calls commenced at about 8:00 p.m. and continued until after 11:00 p.m. There were 25 calls to or from the phone linked to Pinnock, 13 of which occurred between 8:28 p.m. and 10:09 p.m. Pinnock used a "call block" feature preventing his number from being displayed on the recipient's phone for five calls prior to 10:09 p.m. and for one call at 11:34 p.m. Experts testified as to the locations and movements of the three cellphones during the evening. That evidence indicated that the three appellants had [page92 ]proceeded to the vicinity of Lisa St. just before the time of the murder and then returned to the Robinson residence after the time of the murder, in a manner consistent with Brown's evidence.

Welsh's car

[24] Three residents in the area of Lisa St. heard gunshots on the night of the murder and saw cars speed away. They variously described one of the cars as a black or dark blue Sunfire, Sunbird or Cavalier. Welsh was stopped by the police a week after the murder driving a 2002 Chevrolet Cavalier, and Brown testified that he drove with Robinson in Welsh's black Cavalier. The Chevrolet Cavalier is similar in appearance to a Pontiac Sunfire.

Analysis

Issue 1: The admissibility of the "Obeah statements"

1. Facts

The nature of Obeah

[25] Four expert witnesses gave evidence as to the nature of Obeah: a professor of divinity, a social anthropologist, a political anthropologist and a professor of Christian thought and ethics. Their evidence may be summarized as follows.

[26] Obeah centres on mysticism and spiritualism and is commonly practised throughout the Caribbean and by those of Caribbean descent, including many Caribbean Canadians. It is a flexible and all-encompassing belief system that defines the characteristics of the supernatural world and its relationship to humankind.

[27] Believers use Obeah for a variety of reasons, including solving spiritual as well as physical or psychological problems. Spirits, both good and evil, are a fundamental component of Obeah. A common belief is that the spirits of dead people who are not at rest or have died under uncertain circumstances can cause damage, injury or distress to the living. Obeah is used as a bridge between the natural and the spirit worlds, and part of the work of an Obeah practitioner is to try to protect supplicants who believe that an evil spirit is targeting them.

[28] Rituals are a vital aspect of the practice of Obeah. Some rituals are traditional and common in Obeah, while others are created by the individual practitioner to suit the needs of a particular case. Practices generally include prayer, fasting and hymn singing, as well as a strong reliance on candles, water, [page93 ]oils, herbal baths and charms. Metaphors are regularly used in Obeah. Two prevalent metaphors include referring to "Babylon" to represent the justice system and to the "beast" or "beastman" to represent the police.

[29] Obeah typically does not involve physical places of worship. This is primarily due to the fact that Obeah was historically suppressed and generally prohibited in the Caribbean. Thus, practitioners usually work out of their homes. They consult supplicants in private, and there is an expectation of confidentiality between the practitioner and supplicant. It is common for a supplicant to pay a practitioner for Obeah-related services.

[30] The trial judge summed up his assessment of the expert evidence on the nature of Obeah at para. 2 of his ruling: "Among some cultures in the Caribbean Islands, an Obeahman is believed to have the ability to communicate with the spirit world and to influence events and people in the physical world."

The Obeahman undercover operation

[31] Constable Andrew Cooper, an undercover officer, posed as an "Obeahman" named Leon. Cooper was an experienced member of the Peel Regional Police. He is a large and imposing man who grew up in a Jamaican community in London, England. Cooper's technique was to present an elaborate deception involving conversation and rituals to gain Ms. Robinson's confidence and to persuade her and her son of his mystical powers. The police initially planned to use the Obeahman ruse as a stimulation for a wiretap and outlined their intentions and the nature of the scheme in the Part VI application in the following terms:

As part of the stimulation plan, police plan to introduce an undercover police officer acting in the role of an "Obeahman" to one or more of the named persons. Obeah is defined in the Merriam-Webster's Dictionary 10th edition as "a system of belief among blacks chiefly of the British West Indies, the Guianas and the Southeastern United States that is characterized by the use of sorcery and magic ritual". An Obeahman is a sorcerer who practices Obeah. Upon being introduced, the undercover officer will explore the named person's willingness to use sorcery to fight the police and the judiciary. If the named person shows a desire to use Obeah for this purpose, the undercover officer will provide information to the named person regarding the murder of one or both victims in an attempt to stimulate the named person into providing information regarding their knowledge and/or involvement in/on or both murders.

[32] In February 2005, the police staged an accident involving Ms. Robinson's car. Posing as Leon, Cooper spoke to her, offering to pay for the damage, and told her that he felt a "vibe". Several meetings with her followed. In his subsequent meetings with her, Cooper often wore a black gown and used candles. [page94 ]

[33] A recurrent theme in Cooper's conversations with Ms. Robinson and the appellants was the "protection" he could offer her and her children. He told Ms. Robinson that the "good spirit" died because he "didn't have the protection". Cooper told Ms. Robinson that he would take care of the police and the judge: "I'm going to deal with the beast [the police] and the judge". Wiretap evidence revealed that she told a friend that Leon told her that she would have to take responsibility for any destruction that occurred, that he would only take responsibility for the judges and the police, and that "this work here is not of God". He told them that the evil spirit was vengeful and that it would manipulate the justice system.

[34] Cooper used elaborate props, including an egg with red dye to simulate blood, when Cooper went with Ms. Robinson and her son Evol to the murder scene for an egg-breaking ritual that he called "location of the creation" with reference to the evil spirit. Later, the police put a dead crow on Ms. Robinson's doorstep to demonstrate that Leon's powers were working. He told Robinson: "that's how my protection work the crow dead that was my doing protecting you from the 'John crow' them" -- "John crow" being a reference to the justice system. Another ploy was to provide Ms. Robinson with a white handkerchief as a protective device against the police. In a staged incident, a police officer pulled her over while she was in possession of the handkerchief. The officer feigned illness and Ms. Robinson had to help him back to the cruiser. In a similar incident, when Evol Robinson was in possession of the handkerchief, he arrived late for a recognizance at the police station, the officer feigned illness and told Robinson that he could sign in and leave.

[35] Leon impressed upon both Robinson and Pinnock that in order to stop the "evil spirit" or the "white boy" from harming them and the family, he had to find out where and how the evil spirit had been created -- in other words, how Oraha was killed. This induced Robinson and Pinnock to make statements in which they admitted that they were at the scene of the murder. Robinson told Leon about his movements with Brown and that there were four shooters and eight people involved. Pinnock admitted that he was at the scene, that he made a phone call, but insisted that he did not see Oraha.

[36] The final ploy was connected with the arrest of Ms. Robinson. Leon told Robinson that she had been arrested because she had not given him the information he had requested. He pressed Robinson for details about the murder as "this thing here is coming after your mother hard now" and that Robinson had to tell him everything to avoid the evil that had befallen his [page95 ]mother. Robinson reluctantly admitted that he was at the scene of the murder after receiving a call from his brother Welsh, that Brown and Welsh had switched places in the cars and that "the white guy pulled up I guess they all get out start shooting". Robinson admitted that he had "touched" the gun and that his mother had cleaned it.

[37] On the voir dire to determine the admissibility of the statements to Cooper, neither Evol Robinson nor Pinnock testified as to the state of their belief in Obeah. The only evidence as to the state of their beliefs came from the tapes and from the experts who viewed the tapes. The experts testified that neither of the appellants were Obeah adherents or believers before they encountered Cooper. They knew little of Obeah and had no habit of practising Obeah. They became involved because of Ms. Robinson. One theologist thought that Robinson attended the meetings with Cooper for protection, not counselling. He also thought that Pinnock was not a believer but that towards the end he appeared to have moved from being a non-believer to being a convert. The other theologist thought that both appellants were believers. The cultural anthropologist thought that Pinnock was not an intense believer but a believer in a very basic sense.

2. The trial judge's ruling

[38] The appellants argued at trial that the statements should not be admitted. They submitted that the method of obtaining the statements violated their Canadian Charter of Rights and Freedoms rights to freedom of religion (s. 2(a)) and equality (s. 15). They also submitted that the method the police used to obtain the statements constituted a "dirty trick" and that their admission into evidence would constitute an abuse of process. Finally, the appellants argued that their statements were made as communications to a religious adviser and therefore were protected by common law privilege.

[39] The trial judge rejected these arguments and ruled that the statements were admissible.

[40] The trial judge found that although Obeah was "not immediately recognizable as a religion according to the dominant religious paradigms", given the opinions of the experts and the broad definition of religion that had evolved in the case law, it did constitute "a religious belief system" that attracted the protection of s. 2(a). The trial judge also found that Robinson had a sincerely held belief in Leon's spiritual powers as an Obeah practitioner. The trial judge found that Pinnock had failed to demonstrate a genuine or sincere belief. In the trial judge's [page96 ]view, Pinnock had gone along with the visits to Leon to mollify Ms. Robinson and to satisfy his own curiosity.

[41] The trial judge found, however, that the deception practised by the undercover operation to entice Robinson's incriminating statements did not amount to a violation of Robinson's s. 2(a) right to freedom of religion. Robinson "was not constrained or coerced in his religious practice". The police "did not interfere with his freedom to worship or express himself spiritually", nor did the police interfere with his "ability or right to worship" or "coerce him to disbelieve or disavow his religious beliefs". It was not sufficient for the appellants to show that they had been "coerced or berated or even threatened by the Obeahman into confessing" as that conduct "would not have interfered with their right to practice their form of religion". Any interference with Robinson's freedom of religion was therefore trivial or insubstantial and not a violation of s. 2(a).

[42] The trial judge also found that if there had been a s. 2(a) violation, it would be justified as a reasonable limit under s. 1. The trial judge found that violent crime involving guns was a pressing social concern and that police undercover operations were an essential and unavoidable element of crime prevention, curbing gun violence and apprehending perpetrators of gun crimes.

[43] As for s. 15, the trial judge found that the appellants had been targeted on the basis of their suspected involvement in a serious crime, not on the basis of race or religion, and, as with s. 2(a), had there been a violation of s. 15, it was justified as a reasonable limit under s. 1.

[44] The trial judge found that as the police conduct did not violate the appellants' right to freedom of religion, it similarly did not constitute a "dirty trick" that would either shock the conscience of the community or bring the administration of justice into disrepute.

[45] Finally, the trial judge rejected the contention that the appellants' conversations with Cooper attracted common law privilege. The trial judge applied the test mandated by R. v. Gruenke, 1991 40 (SCC), [1991] 3 S.C.R. 263, [1991] S.C.J. No. 80, taken from Wigmore, Evidence in Trials at Common Law, vol. 8, McNaughton Revision (Boston: Little, Brown, 1961), at para. 2285:

(1) the communications must originate in a confidence that they will not be disclosed;

(2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;

(3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and [page97 ]

(4) the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

[46] The trial judge relied as well on the judgment of Archie Campbell J., applying the Wigmore test in R. v. Medina, [1988] O.J. No. 2348 (H.C.J.).

[47] The trial judge found that the first factor was satisfied:

Given the physical setting of the meetings, the atmosphere induced by the Obeahman, and gravity of the admissions made, the Applicants would naturally have had some expectation of confidentiality.

[48] However, the trial judge found that appellants failed to meet the second factor:

Pinnock's and Robinson's motive in attending the Obeah sessions was not sincere participation in a religious rite or service; rather, their purpose was to seek protection from the evil spirit of the deceased Oraha and to cause harm to those who sought to bring them to justice for allegedly committing a serious crime.

[49] The trial judge also found that the appellants failed to meet the third factor. He noted that in Medina, Archie Campbell J. held that while the community interest in encouraging pastoral counselling grounded in religion was one to be sedulously fostered, there was "no community interest in protecting statements made for the purpose of getting away after a crime". The trial judge found that as one of the purposes of the appellants in the communications with Leon "was expressly to obstruct law enforcement officials and the judiciary from prosecuting them", the appellants had failed to establish "a sufficient connection between their statements and the relation of 'pastoral counselling' or religious guidance".

[50] Finally, the trial judge concluded that the harm that would result from suppressing the evidence far outweighed any harm to the "Obeahman-adherent" relationship.

3. Did the trial judge err in finding that the Obeahman undercover operation did not violate the appellants' s. 2(a) right to freedom of religion?

[51] The main focus of the appellants' appeal against the admission of the Obeah statements rests on their contention that the undercover operation violated their freedom of religion.

[52] The guarantee of freedom of conscience and religion found in s. 2(a) is central to the Charter's overall scheme of protection of individual autonomy, freedom and dignity. In two foundational cases, Dickson C.J.C. laid out the basic principles. R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, [1985] S.C.J. No. 17, at p. 346 S.C.R., [page98 ]holds that the purpose of freedom of religion is related to every individual's right to "be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates". In R. v. Edwards Books & Art Ltd., 1986 12 (SCC), [1986] 2 S.C.R. 713, [1986] S.C.J. No. 70, at p. 759 S.C.R., Dickson C.J.C. added that "[t]he purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one's perception of oneself, humankind, nature, and, in some cases, a higher or different order of being".

[53] Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567, [2009] S.C.J. No. 37, 2009 SCC 37, at para. 32, states that a claim of violation of religious freedom protected by s. 2(a) will be made out where

(1) the claimant sincerely believes in a belief or practice that has a nexus with religion; and

(2) the impugned measure interferes with the claimant's ability to act in accordance with his or her religious beliefs in a manner that is more than trivial or insubstantial.

(Citations omitted)

[54] The Supreme Court reiterated Dickson C.J.C.'s statement in Edwards Books & Art, at p. 759 S.C.R., that "[t]he Constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened"; that "[f]or a state-imposed cost or burden to be proscribed by s. 2(a) it must be capable of interfering with religious belief or practice"; and that "legislative or administrative action which increases the cost of practising or otherwise manifesting religious beliefs is not prohibited if the burden is trivial or insubstantial" (citations omitted).

[55] The first element that a claimant must establish is a sincere practice or belief, subjectively connected with the applicant's spiritual faith or connection with a higher or different order of being. In Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, [2004] S.C.J. No. 46, 2004 SCC 47, at para. 39, the court observed that while it is difficult to define, religion "typically involves a particular and comprehensive system of faith and worship" and a "belief in a divine, superhuman or controlling power". The essence of religion, said the court, concerns "freely and deeply held personal convictions or beliefs connected to an individual's spiritual faith and integrally linked to one's self-definition and spiritual fulfilment" and practices that "allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith". The court emphasized a subjective approach to freedom of religion that focuses on the [page99 ]sincerity of the claimant's subjective belief, at para. 46, that is "irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials".

[56] The respondent does not challenge the trial judge's finding that given this broad and subjective definition of religion and the opinions of the expert witnesses, Obeah beliefs and practices constitute "a religious belief system" that attracts the protection of s. 2(a). Nor does the respondent challenge the trial judge's finding that Robinson had a sincerely held belief in Leon's spiritual powers as an Obeah practioner.

[57] Pinnock challenges the trial judge's finding that he lacked a sincerely held religious belief, and the respondent supports that finding as being well-founded on the evidence.

[58] The second hurdle a claimant faces is to demonstrate that the impugned law or state action interferes with his or her freedom in a manner that is more than trivial or insubstantial.

[59] Most, if not all, decided cases deal with situations where a law or practice either compels an individual to act in a manner contrary to his or her religious beliefs or burdens the individual's ability to act in accordance with those beliefs.

[60] An example of an action compelled by law that violates religious freedom is the requirement for businesses to close on Sundays pursuant to the Lord's Day Act considered in Big M. The Lord's Day Act compelled non-Christians to observe the Christian Sabbath. Other examples are laws compelling the recital of the Christian Lord's Prayer or the teaching of Christian religious education in public schools: see Zylberberg v. Sudbury Board of Education (Director) (1988), 1988 189 (ON CA), 65 O.R. (2d) 641, [1988] O.J. No. 1488 (C.A.); Canadian Civil Liberties Assn. v. Ontario (Minister of Education) (1990), 1990 6881 (ON CA), 71 O.R. (2d) 341, [1990] O.J. No. 104 (C.A.).

[61] The police undercover operation at issue on this appeal did not compel any action for a religious purpose. Leon encouraged the appellants to adopt Obeah practices, but encouragement short of compulsion does not infringe s. 2(a). The Charter, unlike the American Bill of Rights, does not contain an "establishment" clause forbidding state action that promotes religion: Peter Hogg, Constitutional Law of Canada, 5th ed., looseleaf (Toronto: Carswell, 2007), at para. 42.2.

[62] More often, laws and practices that violate religious freedom fall into the second category as burdening or interfering with the individual's ability to act in accordance with religious beliefs. For example, Amselem found that prohibiting a temporary structure erected for religious purposes violated freedom of [page100] religion. In Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, [2006] S.C.J. No. 6, 2006 SCC 6, the court considered and struck down a school policy that prohibited a Sikh student from bringing into the school his kirpan, a ceremonial knife worn for religious reasons.

[63] Not all laws or practices that burden religiously motivated actions will violate s. 2(a). In R. v. Jones, 1986 32 (SCC), [1986] 2 S.C.R. 284, [1986] S.C.J. No. 56, [the] Supreme Court held that a Charter breach will be made out only where the burden is more than trivial or insubstantial. In Jones, the court found that a state-imposed requirement that a parent engaging in home education for religious reasons must obtain an exemption from a school board certifying that the home education met minimum standards did not have sufficient impact on the parent's religious beliefs to constitute a violation of s. 2(a). See, also, Hutterian Brethren, at para. 32, referring to Edwards Books, at p. 759 S.C.R., per Dickson C.J.C.: "The Constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened."

[64] Did the Obeah undercover deception practised upon the appellants by the police amount to a non-trivial and substantial burden or interference with the appellants' religious freedom?

[65] The appellants were duped into engaging in practices they were told and, to some extent, believed had a spiritual or religious connotation. This deceptive practice by the police amounted to a surreptitious invasion of a relationship the appellants believed to be rooted in religion or spiritualism. That invasion calls for scrutiny by virtue of the claim of common law religious privilege and under the "dirty tricks" doctrine, considered below. It seems to us that the rights and interests asserted by the appellants are more squarely and directly confronted under those common law doctrines than under s. 2(a) of the Charter. The Charter value of freedom of religion is an important consideration under those common law doctrines, but these more precisely focused common law claims are distinct from a claim of a breach of s. 2(a). However, as the appellants' claim for exclusion of the statements emphasizes a violation of s. 2(a), we will focus our analysis on that issue.

[66] To the extent that the invasion of the relationship did implicate freedom of religion protected by s. 2(a), we agree with the trial judge that any interference was trivial or insubstantial.

[67] First, the evidence that Robinson held a sincere belief in Obeah was tenuous and the trial judge found as a fact that Pinnock lacked such a belief. We are not persuaded that there is any basis for us to interfere with that finding. Neither appellant [page101] appeared to have any significant prior knowledge of Obeah. Both men were reluctant participants in the Obeah sessions and both had to be persuaded to participate by Ms. Robinson. Neither testified on the voir dire as to the nature of their beliefs. Their adherence to Obeah had to be inferred from their conduct in the sessions with Leon. As the onus of making out a s. 2(a) claim rests with the claimant and as sincerity of belief is a subjective matter, to make out a violation of s. 2(a) a claimant will ordinarily have to testify to establish the sincerity of his or her religious belief: see, e.g., Multani, at para. 35. In general, the more strongly held a religious belief, the more significant any state interference will be. In this case, the belief, to the extent that it existed, was both recent and weak.

[68] Second, the trial judge found that the purpose of the appellants' attending and participating in the Obeah sessions was to seek protection from the justice system and to cause harm to the authorities who sought to prosecute and convict them for allegedly committing a serious crime. While that finding was made in relation to the claim for common law religious privilege, we see no reason why it should not apply to the s. 2(a) claim.

[69] There was ample evidence to support the trial judge's finding that the purpose of the appellants in their communications with Leon "was expressly to obstruct law enforcement officials and the judiciary from prosecuting them". As we have explained, the consistent and dominant theme in the meetings between Leon and Ms. Robinson and the appellants was Leon's claim to have power to control the police and the justice system. The ploys involving the dead crow and the ill officers were used to persuade the appellants that Leon could harm the police. Robinson's incriminating statements made at the final meeting were induced in part by the deception that Ms. Robinson had been arrested because she had failed to give Leon a complete account.

[70] Third, there is no evidence that either appellant communicated with Leon to satisfy or fulfill some spiritual need or purpose. This situation is distinguishable from the hypothetical of a police officer posing as a priest and pretending to take a religiously motivated confession from a suspect. In that case, the communication would be religiously motivated and made to satisfy a spiritual need or purpose. We point out that the lack of a formal practice of confession in Obeah is not determinative: see Gruenke, at pp. 291-92 S.C.R. The focus is not on formal distinctions of that kind but rather on whether a religious purpose motivates the communication. The situation of a suspect [page102] who thinks he is speaking to a religious or spiritual figure for spiritual counselling or guidance is very different from that of a suspect who seeks assistance in thwarting the authorities: see Medina.

[71] We conclude that any religious element in the Obeah sessions with Leon is properly characterized as trivial, insubstantial and dwarfed by the corrupt motives that induced the appellants to participate in and fall for the elaborate scheme of deception practised upon them.

[72] We add the following observation with regard to the corrupt motives of Robinson and Pinnock. Based on the Supreme Court's jurisprudence, it is clear that courts cannot look into the sincerity or legitimacy of a person's belief. Indeed, in the context of freedom of religion, s. 2(a) protects beliefs in an almost limitless manner. However, there may be limitations as to the extent to which s. 2(a) will protect the manifestations of those beliefs. The Supreme Court recognized the limits of the Charter protection of religious practices in Big M, at pp. 337 and 346 S.C.R.; Amselem, at para. 61; Ross v. New Brunswick School District No. 15, 1996 237 (SCC), [1996] 1 S.C.R. 825, [1996] S.C.J. No. 40, at para. 72; and Bruker v. Marcovitz, [2007] 3 S.C.R. 607, [2007] S.C.J. No. 54, 2007 SCC 54, at para. 72. In Amselem, Iacobucci J. held, at para. 61, that "it should be emphasized that not every action will become summarily unassailable and receive automatic protection under the banner of freedom of religion". The court has also stated that the s. 2(a) protections of religious practices are subject to limits necessary to protect public safety, order, health or morals: Big M, at p. 337 S.C.R.; and Ross, at para. 72.

[73] Finally, we wish to be clear that, contrary to the submissions of the appellants, by holding that there was no violation of s. 2(a) in this case, we do not give the police carte blanche to exploit the religious beliefs and practices of suspects to obtain statements. Each case must be decided on its own facts. This is plainly a very sensitive area where the police must proceed with the utmost caution and with the utmost respect for the fundamental value of freedom of religion. We wish to state clearly that this decision does not stand for the proposition that the police are entitled to pose as religious advisers and expect that statements obtained from religiously motivated suspects will be admitted. In cases where suspects have sincere religious beliefs and seek counselling from a supposed religious adviser for non-corrupt religious reasons, the result could well be different. [page103]

4. Did the trial judge err in finding that the Obeahman undercover operation did not violate the appellants' s. 15 right to equality?

[74] We are not persuaded that the trial judge err in finding that the Obeahman undercover operation did not violate the appellants' s. 15 right to equality.

[75] The investigative technique used by the police was not based upon an enumerated or analogous ground under s. 15. Nor did the investigative technique deployed by the police rest on a distinction that creates a disadvantage by perpetuating prejudice or stereotyping.

[76] We agree with the trial judge that the equality claim fails on the basis that the appellants were not singled out or targeted by the police or otherwise treated differently on the basis of their race or religion. Their black, Jamaican heritage made them vulnerable to the Obeah sting, but they were singled out for the investigation because they were suspected of murder, not because of their race or religion. When investigating crime, the police necessarily tailor their strategies and activities according to the particular nature of the crime they are investigating and the individual traits of those they suspect.

[77] In making their s. 15 claim, the appellants rely heavily on the evidence of Detective Sergeant Jarvis, the officer who designed the Obeah operation, that he thought that Obeah was not a religion but a form of witchcraft or voodoo and that he would not use a similar operation for an established religion. The views expressed by Detective Sergeant Jarvis, even if discriminatory, are not the issue and the appellants cannot ground their s. 15 claim on what he said or thought. The trial judge rejected Detective Sergeant Jarvis' views and rejected the assertion that Obeah is not a religion. The decision of the trial judge plainly does not rest on the basis that Obeah adherents are to be treated differently from those who follow more traditional, established religions.

[78] While this is sufficient to dispose of the ss. 2(a) and 15 Charter claims, for the sake of completeness, we turn to the application of ss. 1 and 24(2).

5. Could any violation of s. 2(a) or s. 15 be justified as a reasonable limit "prescribed by law" pursuant to s. 1?

[79] The trial judge found that if there were a violation of s. 2(a) or s. 15, it could be justified as a reasonable limit pursuant to s. 1. [page104]

[80] We respectfully disagree with that conclusion as s. 1 has no application on the facts of this case. Section 1 requires that the limit be "prescribed by law". At issue here is a police investigative technique that rests on nothing more precise than the general legal duty of the police to investigate crime. The Crown does not contend that there is a law that authorizes or permits the police to use the investigative technique under scrutiny. Where the actions of a government agent are not specifically authorized or prescribed by law, s. 1 does not apply. A general duty of that nature does not amount to a limit "prescribed by law" within the meaning of s. 1. See Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, [2000] S.C.J. No. 66, 2000 SCC 69, at para. 141: "Violative conduct by government officials that is not authorized by statute is not 'prescribed by law' and cannot therefore be justified under section 1" and the analysis must "therefore proceed directly to the remedy phase of the analysis".

[81] Accordingly, we turn to the issue of whether, had there been a violation of s. 2(a) or s. 15, the evidence should have been excluded pursuant to s. 24(2).

6. If there was a violation of the appellants' s. 2(a) right to freedom of religion or s. 15 right to equality, should the evidence be excluded pursuant to [s. 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[82] In our view, even if there were a Charter breach, application of the three-part inquiry mandated by R. v. Grant, [2009] 2 S.C.R. 353, [2004] S.C.J. No. 32, 2009 SCC 32 for considering the admissibility of evidence under s. 24(2) strongly favours admitting the evidence.

(i) The seriousness of the Charter-infringing state conduct

[83] The police designed and implemented the Obeah undercover operation in good faith. They reasonably believed that the operation was Charter-compliant and acted in reliance on the trial court's ruling in Rowe, discussed below. The police invited judicial scrutiny of the operation when they explained it as a basis for a wiretap authorization.

(ii) The impact of the breach on the Charter-protected interests of the accused

[84] We will not repeat here the factual findings that led the trial judge and that lead us to conclude that any infringement of [page105] the appellants' religious freedom was trivial and insubstantial. As we have explained, there is no evidence that either Robinson or Pinnock held Obeah beliefs or engaged in Obeah practices before being persuaded to do so by Ms. Robinson and Leon. There is no evidence of any impact upon their religious lives or practices. Neither appellant was coerced or prevented from doing anything of a religious nature. Even if the Obeah sting did rise to the level of a non-trivial and substantial interference with freedom of religion, the impact of the breach on the Charter-protected interests of the appellants was at the low end of the scale for the purposes of s. 24(2).

(iii) Society's interest in the adjudication of the case on the merits

[85] This case involved a murder that appeared to have been related to and provoked by two earlier murders. It was perpetrated by the killers shooting at the victim in an open parking lot with other bystanders nearby. There was a strong public interest in an effective investigation that would put an end to this chain of shooting and killing. The impugned police conduct did not encourage or carry a significant risk of unreliability. The evidence gathered was entirely consistent with that of other witnesses and the cellphone records. The truth-seeking function of the trial would clearly be served by admitting the evidence.

7. Did the trial judge err in finding that the Obeah statements did not attract the protection of common law privilege?

[86] It is common ground that the test for common law privilege is that mandated by Gruenke and applied by the trial judge. For convenience, we repeat here the four factors that are to be considered:

(1) the communications must originate in a confidence that they will not be disclosed;

(2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;

(3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and

(4) the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

[87] We observe at the outset that in Gruenke, the majority of the Supreme Court rejected, at p. 289 S.C.R., the argument that [page106] the Charter protection of freedom of religion requires the extension of a prima facie privilege:

The extent (if any) to which disclosure of communications will infringe on an individual's freedom of religion will depend on the particular circumstances involved, for example: the nature of the communication, the purpose for which it was made, the manner in which it was made, and the parties to the communication.

[88] We are not persuaded that the trial judge erred in his application of the Gruenke test.

[89] The trial judge found that the appellants had an expectation of confidentiality. However, we note that as they did not testify as to any expectation of confidentiality, that finding appears to be a generous one.

[90] We see no basis for interfering with the trial judge's findings with respect to the remaining three factors. We need not repeat those findings here in detail. The appellants' motivation when participating in the Obeah sessions was not sincere participation in a religious rite or service but rather an attempt to escape detection and prosecution for a serious offence. The appellants' participation rested on an effort to obstruct law enforcement officials and get away with the commission of a crime. The harm to the public interest that would result from suppressing the evidence far outweighed any harm to the "Obeahman-adherent" relationship.

8. Did the trial judge err in concluding that the Obeah statements should not be excluded under the dirty tricks doctrine or as a violation of [s. 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[91] The trial judge gave brief reasons for rejecting the dirty tricks argument. He appears to have proceeded on the assumption that the appellants' failure to make out a violation of freedom of religion determined the dirty tricks claim.

[92] We respectfully disagree with that approach. While the Charter value of freedom of religion is an important component of the dirty tricks and s. 7 analysis, those issues must be specifically considered and are not subsumed by the rejection of the s. 2(a) claim.

(a) Dirty tricks

[93] The "dirty tricks" doctrine originated in the concurring reasons of Lamer J. in R. v. Rothman, 1981 23 (SCC), [1981] 1 S.C.R. 640, [1981] S.C.J. No. 55, where he stated that there are circumstances in which a statement of the accused ought to be excluded because the conduct of the police is so egregious that admitting the [page107] evidence would bring the administration of justice into disrepute or is so appalling as to shock the conscience of the community. Lamer J. explained how to approach statements induced by police trickery in the following often-quoted passage, at p. 697 S.C.R.:

The judge, in determining whether under the circumstances the use of the statement in the proceedings would bring the administration of justice into disrepute, should consider all of the circumstances of the proceedings, the manner in which the statement was obtained, the degree to which there was a breach of social values, the seriousness of the charge, the effect the exclusion would have on the result of the proceedings. It must also be borne in mind that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work. What should be repressed vigorously is conduct on their part that shocks the community. That a police officer pretend to be a lock-up chaplain and hear a suspect's confession is conduct that shocks the community; so is pretending to be the duty legal-aid lawyer eliciting in that way incriminating statements from suspects or accused; injecting Pentothal into a diabetic suspect pretending it is his daily shot of insulin and using his statement in evidence would also shock the community; but generally speaking, pretending to be a hard drug addict to break a drug ring would not shock the community; nor would, as in this case, pretending to be a truck driver to secure the conviction of a trafficker; in fact, what would shock the community would be preventing the police from resorting to such a trick.

(Emphasis added)

[94] Lamer J. envisioned a high threshold for finding something to be a dirty trick requiring the exclusion of evidence. He explicitly noted that investigations are not dainty, polite affairs and that often the police must use creativity and subterfuge when dealing with criminals. Deceit on its own is not enough to constitute a dirty trick. The behaviour must be so egregious that it shocks the conscience of the community. In other words, the public would be outraged that police were engaging in such behaviour, even in the pursuit of criminals.

[95] The Rothman dirty tricks analysis was adopted by the Supreme Court in R. v. Oickle, [2000] 2 S.C.R. 3, [2000] S.C.J. No. 38, 2000 SCC 38. Iacobucci J. held, at para. 65, that the "specific objective is maintaining the integrity of the criminal justice system". Unacceptable police conduct must not be condoned by the courts. However, courts should not be too quick to limit police discretion. The court stated, at para. 33, that the common law confessions rule has "twin goals of protecting the rights of the accused without unduly limiting society's need to investigate and solve crimes". Thus, a balance must be struck. [page108]

[96] Iacobucci J. repeated Lamer J.'s examples of dirty tricks: police impersonating either a lock-up chaplain or legal aid lawyer or injecting truth serum into a diabetic, pretending it is insulin. These would be dirty tricks that would be so appalling as to shock the conscience of the community.

[97] In R. v. Miller (1991), 1991 2704 (ON CA), 5 O.R. (3d) 678, [1991] O.J. No. 2010 (C.A.), this court applied the dirty tricks analysis to consider a police ruse which involved getting a suspect's employer to secure handwriting samples from the individual. The court stated, at p. 689 O.R.:

There are tricks at the investigation stage that will not be found to contravene the principles of fundamental justice and others that could be so found. Although it may sound cynical, the jurisprudence on the right to silence at a pre-detention stage makes a distinction between "tricks" and "dirty tricks".

Dirty tricks are those that would bring the administration of justice into disrepute as a result of what was said or done by the police authorities in eliciting the statement.

[98] The only case of which we are aware to consider a police ruse involving someone posing as a religious adviser is the decision of this court in R. v. Rowe, 2006 14235 (ON CA), [2006] O.J. No. 1752, 208 C.C.C. (3d) 412 (C.A.). The appellant in Rowe had made incriminating statements to a man called Carty, a self-styled spiritualist and psychic counsellor. Before the robbery, the appellant had been introduced to Carty by his aunt who also believed that Carty had Obeah powers. The appellant told Carty that he planned to commit crimes and sought Carty's protection. Following the robbery and murder, the appellant went to a friend's apartment. The friend, like appellant's aunt and other members of the Jamaican community, believed that Carty was a very religious individual possessed of mystical Obeah powers. Carty, however, admitted that he was a con man and a charlatan. The friend told Carty that the appellant and his confederates had said things implicating them in the murder and sought his advice. Shortly after he learned of the robbery and fatal shooting, Carty went to the police and was enlisted as a police agent. The appellant paid Carty to perform certain rituals and the police taped conversations between Carty and the appellant in which the appellant made incriminating statements.

[99] The trial judge admitted the appellant's statements. He held that the appellant's purpose in meeting with Carty was to obtain protection from the police, to avoid being arrested, and to seek advice on how to flee the country and that the purpose of the meeting was not pastoral counselling or repentance. As this relationship was a corrupt criminal relationship, not a legitimate religious relationship between a religious practitioner and [page109] a penitent, there was no violation of the appellant's freedom of religion nor did the evidence constitute a "dirty trick".

[100] This court dismissed an appeal from conviction, holding, at para. 56: "The use of the confessional as a means of helping people overcome their errors by forgiving their sins has no application to the facts of this case." The appellant did not testify on the voir dire as to his religious belief and it appeared from the video recordings of the meetings that his "sole interest in meeting with Carty was to get his assistance in getting out of town and avoiding police apprehension" (at para. 58). As the appellant had not approached Carty in a religious sense and as the entire basis of their relationship was corrupt, the statements were properly admitted.

[101] We agree with the appellants that there are many features of Rowe that distinguish it from this case. However, neither the facts of Rowe nor the facts of this case amount to the situation posited in Rothman of a police officer pretending to be a lock-up chaplain to hear a suspect's confession.

[102] First, the appellants were not in custody when they made the Obeah statements. As we will explain, that is fatal to their s. 7 claim. In most situations, undercover operations prior to detention do not give rise to the same concerns as when the suspect is detained.

[103] Second, to the extent that the dirty tricks doctrine is tied to the common law rules relating to voluntary confessions, Leon, as an undercover officer, was not a person in authority: see R. v. Grandinetti, [2005] 1 S.C.R. 27, [2005] S.C.J. No. 3, 2005 SCC 5, at para. 37; R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449, [1998] S.C.J. No. 66; R. v. Singh, [2007] 3 S.C.R. 405, [2007] S.C.J. No. 48, 2007 SCC 48, at para. 40.

[104] Third, as in Rowe, and as we have stated above in relation to the s. 2(a) and common law privilege claims, the appellants' corrupt purpose significantly undermines any religious element there may have been in their relationship with Leon. Unlike the priest-penitent example, and quite apart from any distinction drawn on formal differences between the confessional and merely confiding in a religious adviser, the appellants did not communicate with Leon to fulfill a religious purpose or spiritual need. They were induced to make incriminating statements to Leon in the hope that he would use his powers to thwart the police and the justice system and to allow them to escape prosecution for a serious crime.

[105] Fourth, this is not a case where admitting the Obeah statements would shock the conscience of the community or bring the administration of justice into disrepute. The standard [page110] for finding that a police investigative technique rises to that level is a high one. While many cases speak of the dirty tricks doctrine, few if any apply it to exclude inculpatory statements. The ploy used here does not carry the same risk of a false confession, as may occur in the "Mr. Big" scenario, where statements are routinely admitted: see R. v. McIntyre, 1994 95 (SCC), [1994] 2 S.C.R. 480, [1994] S.C.J. No. 52; R. v. Osmar (2007), 84 O.R. (3d) 321, [2007] O.J. No. 244, 2007 ONCA 50. "Mr. Big" is a label used to describe the police tactic of posing as members of a powerful criminal organization that requires its members to have committed a serious crime. The suspect, hoping to gain admission or protection from the gang, is induced to describe a crime that he or she has committed. In this case, Robinson's and Pinnock's motive was to be truthful with the Obeahman to gain his protection. By contrast, the Mr. Big suspect can have a strong motive to falsely confess to a serious crime to gain admission to the crime family's supposed rewards.

[106] We conclude, accordingly, that the trial judge did not err when he found that the Obeah statements should not be excluded under the dirty tricks doctrine.

(b) Section 7

[107] We are not persuaded that s. 7 of the Charter has any application to this case. Even if it does, at best it may subsume dirty tricks as an aspect of the protection extended by s. 7 and does not add anything substantive to the dirty tricks analysis.

[108] The reason s. 7 has no application is that at the time they made the Obeah statements, the appellants were not detained or in a situation that was tantamount to detention: R. v. Hart, [2012] N.J. No. 303, 2012 NLCA 61, 327 Nlfd. & P.E.I.R. 178, at para. 198. In R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, at p. 184 S.C.R., the Supreme Court held that while s. 7 protects the right to silence, "[t]he jurisprudence relating to the right to silence has never extended protection against police tricks to the pre-detention period". The rationale is that, generally, the subject of a pre-detention undercover operation is not in the control of the state and thus there is no need to protect him from the greater power of the state.

[109] In McIntyre, the Supreme Court considered a "Mr. Big" scenario. McIntyre was arrested for murder but refused to talk to police or to an undercover officer placed in his cell. He was released. Months later, the same officer set up a chance meeting and initiated a Mr. Big scenario. Eventually, McIntyre confessed to the murder. Dismissing McIntyre's appeal, the Supreme [page111] Court released a one-paragraph decision. McIntyre had argued that his statements made to undercover police officers after he had been released were inadmissible under s. 7 of the Charter. The court held that s. 7 was not applicable because the accused had not been detained at the relevant time.

[110] In Osmar, this court cited McIntyre when discussing whether the appellant's s. 7 right to silence had been violated by the admission of the Mr. Big statements. In a thorough exploration of the issue, this court concluded that the s. 7 right to silence applies only after detention, citing the Supreme Court's holdings in McIntyre and Hebert. The court held, at para. 42:

This appellant was not under the control of the state nor was the context such as to require that he be protected from the greater power of the state. The appellant's assertion that elicitation and trickery are sufficient to require Charter scrutiny is not supportable by the authorities or by a reasoned extension of the principles in those cases.

In any event, even if s. 7 did apply, it is difficult to see what it adds to the common law dirty tricks doctrine. As we reject the contention that the Obeah statements should have been excluded on the basis that they were obtained as a result of a dirty trick, any s. 7 claim must also fail.

9. The Obeah statements were properly admitted

[111] The trial judge did not err in admitting the Obeah statements. The Obeahman operation did not violate the appellants' rights to freedom of religion or equality, and even if it did, the evidence would have been admitted under s. 24(2). The Obeah statements were not protected by common law privilege. Finally, the Obeahman operation did not constitute a "dirty trick" and did not breach the appellants' s. 7 rights.

Issue 2: Alleged errors in the jury charge related to the Obeah evidence

[112] The appellants submit that the trial judge erred in his charge to the jury with respect to the Obeah evidence by

instructing the jury to disregard defence counsel's references to the phenomenon of false confessions;

stating that the Obeah statements were admissible and not protected by the usual rules of confidentiality that govern communications with religious or spiritual advisors; and

preventing defence counsel from suggesting that Cooper's attendance at the trial after he testified indicated impropriety on Cooper's part. [page112]

[113] We see no merit in these submissions.

[114] As noted above, the Obeah statements did not give rise to a risk of false confession: at all times, Cooper urged the appellants to tell him the truth and there was nothing in the evidence to support an inference of false confession. If anything, the appellants had a strong motive to be truthful with Cooper so that they would receive his protection.

[115] The trial judge's comment as to the admissibility of the Obeah statements was simply a reflection of the ruling he had made. The trial judge did not err in telling the jury that he had considered and rejected the submission that the statements were privileged. He gave no details as to the basis of his ruling and we do not agree that this comment unfairly disparaged the appellants' communications with Cooper.

Issue 3: The in camera hearing

1. Introduction

[116] The issues arising from the in camera hearing have their origin in an application to stay the proceedings, or obtain some other remedy, as a result of the manner in which the prosecution handled the evidence of Andrew Brown. A somewhat detailed chronology of events is necessary to appreciate these grounds of appeal.

[117] In his initial statement to the police, Brown said that he was at a bus stop and heard shots but had no involvement in the activities surrounding the shooting. By the preliminary inquiry, he had changed his story and testified that he was in a vehicle with the appellant Pinnock at Lisa St. However, he believed that they were simply acting as lookouts for a drug deal. The appellants alleged that in April and May 2005, Brown was subjected to considerable pressure and improper threats or inducements to implicate the appellants in the shooting.

The October 8, 2007 meeting

[118] On Saturday, October 8, 2007, Brown met with Crown counsel Stephen Sherriff and Detective John Schultz to review his previous statements and prepare him to testify at trial. During this interview, Brown dramatically changed his story. Most importantly, he now claimed that he lied about the drug deal and he gave the account that is summarized earlier in these reasons. This account is more damaging to the appellants and undermines a potential defence that Pinnock may have had: that he was at Lisa St. simply in relation to a drug deal. During the October 8 interview, only Mr. Sherriff was taking notes. The [page113] interview was not tape-recorded. The following day, Detective Schultz took a handwritten statement from Brown that was disclosed to the defence. This interview was also not video or tape-recorded. Given the change in Brown's testimony, the history of the prosecution involvement with Brown, and the fact that the October 8 and 9 interviews were not recorded, the defence applied for a stay of proceedings or some other remedy, such as the exclusion of Brown's evidence.

The voir dire

[119] Detective Schultz testified on the voir dire concerning the stay application. He recalled that Mr. Sherriff confronted Brown about the fact that he had lied at the preliminary inquiry and therefore "the deal was off". The lie concerned what Brown had told his parents about what he knew about the events at Lisa St. The "deal" was an agreement not to charge Brown with murder. Sherriff said that the decision whether or not to charge Brown with murder would be made after the trial.

[120] Brown also testified on the voir dire and confirmed much of what Detective Schultz had said about his change in testimony and there being no deal. Brown testified that the question of whether or not he would be charged with murder depended on whether he told the truth. Brown had no specific recollection of what Mr. Sherriff asked him during the October 8 interview.

The disclosure request

[121] Defence counsel sought disclosure of the notes Mr. Sherriff had taken during the October 8 interview. The Crown objected to disclosure on the basis that the notes were subject to "work product" privilege. The trial judge stated that he would review the notes in camera to decide what should be disclosed. After doing so, the trial judge found that he needed input from the Crown as to the nature and meaning of the notes and asked Mr. Sherriff's co-counsel, Cameron Watson, to attend the in camera hearing. Defence counsel did not object to this procedure. A court reporter was present.

[122] In their submissions at the end of the in camera procedure, the appellants' trial counsel explained why they had not objected. Counsel for Robinson put it this way: "Counsel [left the courtroom] on the understanding and the trust we placed in this court that the only issue that would be discussed would be the issue of whether or not the Crown notes were disclosable." Counsel for Pinnock put it this way: [page114]

And as I understood it, I won't -- I'll speak for myself, but I assume I speak for the others, our understanding was it was to assist Your Honour in your understanding of the notes themselves, as to whether they were work product, or something that could be disclosed.

And, as I understood it, that was the only issue that was being discussed in-camera was simply is it a work product, and I don't know if Your Honour was looking at an abbreviation, and wanted clarification as to what that particular abbreviation meant, that we had moved into this issue simply of the notes being disclosed.

And it's really the last two [statements by the trial judge that the change by Brown was spontaneous and Mr. Sherriff had done nothing wrong] that raise the biggest concerns for myself and my client because, as I understood what we were doing, once Your Honour was going to determine if they were work product, we would then go back into the stay application, and based on whether we got notes or not, we would be able to make submissions, provide case law as to whether there was any basis with respect to the misconduct allegations on this meeting with Mr. Brown.

The in camera hearing

[123] The hearing with Mr. Watson present began with a discussion of the notes and what was meant by certain comments. At one point, there was a short discussion about the substance of Brown's evidence and the fact that parts of it were hearsay and Brown would have to be told not to get into that area. The trial judge told Mr. Watson that he believed the notes were work product but he anticipated problems when he informed defence counsel, as they would want an opportunity to argue otherwise. The trial judge stated that he would just tell counsel that the notes would be sealed and they could raise the issue in the Court of Appeal.

[124] The session then continued as the trial judge reviewed the part of the notes where Mr. Sherriff dealt with Brown's change in his story about the drug deal. The trial judge stated that he wanted to know how the change in story came about because if Mr. Sherriff suggested how Brown should change his story, that would be improper. Mr. Watson said that he was sure Mr. Sherriff would not have done anything improper. The trial judge stated: "Well, I don't think it was either, but that's obviously the question that arises in my mind." After reviewing more of the notes, the trial judge was "quite satisfied that this is all work product and none of it should go to the defence"; however, he was still troubled by the issue and he decided he would hear from Mr. Sherriff in camera.

[125] After a brief adjournment, Mr. Sherriff joined the in camera hearing and was questioned by the trial judge as to why Brown changed his testimony. Mr. Sherriff said it was [page115] spontaneous on Brown's part and gave his version of the October 8 meeting, apparently without reference to the notes. After this exchange, the trial judge stated that he was satisfied that Mr. Sherriff's answers were accurate and there were no grounds for disclosing the notes to the defence.

The trial judge's report to the appellants in open court

[126] The trial judge then returned to the courtroom and told counsel that he could give his ruling with respect to disclosure of Mr. Sherriff's notes. The trial judge stated that there were a couple of areas where he wanted some explanation from Mr. Sherriff. He had received the explanation, accepted it and found "that there has been nothing improper done by him, that all of his notes, in totality, are work product and are therefore privileged and will not be delivered to the defence". He went on to say that he could confirm that Brown's confession that the drug deal story was a lie was initiated by Brown himself, and that "Mr. Sherriff was as surprised as anyone" about the change in story. The trial judge went on to say:

So, it wasn't induced out of him, in my view, by anything Mr. Sherriff said or did. And it came voluntarily and without prodding or without suggestion from Mr. Sherriff during the course of that conversation.

[127] The trial judge also informed the parties that Mr. Sherriff had turned over to another Crown counsel the decision of how to deal with Brown after the trial.

[128] At this point, defence counsel objected to the procedure. In their view, the in camera hearing had gone beyond the issue of disclosure of the notes. The appellants had been excluded from a part of the trial while the trial judge decided the very issue on the stay application. The trial judge disagreed, stating that he had determined that the notes were work product and therefore would not be disclosed and that was all he did.

[129] Counsel brought a further application for a mistrial and a stay of proceedings and asked the trial judge to recuse himself. As a result, the transcript of the in camera proceedings was disclosed to the appellants. Counsel for the appellants made lengthy submissions on the original stay application and the new grounds as a result of the in camera hearing. In the course of those submissions, the trial judge ordered that Mr. Sherriff's notes relating to why Brown changed his story be disclosed to the defence. The trial judge later offered counsel the opportunity to question Mr. Sherriff on the issue of how Brown changed his [page116] story but he would not allow counsel to "test [Mr. Sherriff's credibility]". The appellants chose not to question Mr. Sherriff.

The trial judge's reasons

[130] The trial judge delivered written reasons dismissing the application as it related to the alleged impropriety in the in camera hearing. The trial judge set out the well-known test for reasonable apprehension of bias in Committee for Justice and Liberty v. Canada (Natural Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118 and R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84. The trial judge acknowledged that he should not have made the finding on the in camera hearing that Mr. Sherriff did nothing wrong in his handling of Brown's interview. However, he told the parties in strong terms that he had put aside the view expressed in those remarks and would decide the issue objectively and fairly. The trial judge, at paras. 30-33 of his ruling, concluded as follows with respect to the recusal application:

The Court heard Mr. Sherriff's comments as to how the change in Mr. Brown's potential evidence came about. The Court then relayed these comments to the Defendants. It must be remembered that Mr. Brown has changed his version of events on numerous occasions. One more version could not have come as a surprise to anyone. There is no evidence that any of Mr. Brown's previous changes were in any way influenced by Mr. Sherriff. This Court has indicated it has little faith in anything Mr. Brown says. It has said several times it will be rendering a strong Vetrovec warning to the jury. It is still open to the possibility that it will exclude Mr. Brown from giving evidence at all. This is a possible result on the stay application, still to be decided.

The words of this Court following the in camera hearing should not be taken in isolation. They must be ". . . considered in the context of the circumstances, and in light of the whole proceeding". S. (R.D.) at para. 141. In D'Souza, the Ontario Court of Appeal said that the threshold for the appearance of bias is high. To find bias or the appearance of it requires a thorough and careful analysis of the entire proceedings. The premature views of this Court, now put aside, must be considered in the context of all of the circumstances of the case. In the context of this entire case, the Court's comments on how yet one more version of an ever changing story of one witness came about will hardly be determinative of the ultimate outcome. The jury, of course, has not heard or seen any of this. If the witness is allowed to give his testimony, the tortuous history of this many lies will be thoroughly explored and no doubt laid bare in cross-examination. The Court will then issue an appropriately strong warning about the danger of accepting such testimony.

In all of these circumstances, this Court finds that a reasonable person, apprised of all of the facts and having thought the matter through and viewing it realistically, would conclude that this Court would decide the issue fairly. [page117]

The Court declines to recuse itself and therefore dismisses the motion for recusal.

[131] The trial judge then turned to the mistrial application, which was based on the fact that the appellants' right to be present at their trial as guaranteed by s. 650(1) of the Criminal Code, R.S.C. 1985, c. C-46 was abrogated. The trial judge held that the in camera hearing was not intended to be part of the trial for the purpose of s. 650(1). When Crown counsel provided the explanation of what his notes meant, the trial judge disclosed that fact to the appellants. It was still not evidence in the trial or the voir dire. Further, any potential harm to the appellants had been remedied by disclosure of the transcript of the in camera hearing. As the trial judge said:

The recollections of Mr. Sherriff, given in response to questions from the Court, were elicited by the Court and repeated to the Defendants and their counsel because they are potentially highly relevant to the main issue on the stay application. With the release to them of a transcript of the in camera hearing and the portion of Mr. Sherriff's notes that prompted the responses, they now have all the information and documentation that the Court has touching on what happened in camera and how it happened. Thus, as in Chan, the potential harm to the accused has been remedied by these disclosures.

[132] Accordingly, the trial judge dismissed the application for a mistrial.

[133] Prior to release of the written reasons respecting the recusal and mistrial application, the trial judge dismissed the application for a stay of proceedings or to exclude Mr. Brown's evidence. The trial judge did not provide any reasons. The appellants do not challenge the trial judge's ruling on those issues.

2. Analysis of the in camera arguments

[134] The appellants advance two related arguments concerning the conduct of the in camera hearing. First, they submit that the trial judge erred in conducting part of the trial in the absence of the appellants in violation of s. 650(1) of the Criminal Code. Second, the manner in which the trial judge dealt with the issues arising from the in camera hearing raised a reasonable apprehension of bias and the trial judge should have recused himself. Mr. Derstine, who argued these grounds of appeal for the appellants, primarily relied upon the breach of s. 650(1) and made only brief submissions on reasonable apprehension of bias.

Violation of s. 650 of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

[135] In this court, Crown counsel concedes that when the in camera hearing went beyond the issue of work product privilege [page118] into consideration of the merits of the application for a stay of proceedings or exclusion of Brown's evidence, there was a violation of s. 650(1) of the Criminal Code. The Crown submits, however, that the curative provisions of s. 686(1)(b)(iv) of the Criminal Code should be applied and this ground of appeal dismissed. We agree with that position.

[136] Section 650(1) provides that an accused shall be present in court during the whole of his or her trial. There are exceptions. In particular, ss. 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. The trial judge was of the view that the in camera hearing, to the extent that it dealt only with assisting the trial judge in understanding Mr. Sherriff's notes, was not part of the trial. Whether or not that is a correct characterization of the procedure need not be resolved. Counsel for the appellants consented to the in camera procedure.

[137] That consent, however, did not extend to dealing with the substance of the motion concerning Andrew Brown. To the extent that the discussion with Mr. Watson and the questioning of Mr. Sherriff strayed into the disposition of the motion, the appellants' rights to be present during their trial were infringed. At that point, the trial judge was not simply dealing with the notes but was dealing with a matter that involved the "vital interests" of the appellants: see R. v. Hertrich, 1982 3307 (ON CA), [1982] O.J. No. 496, 67 C.C.C. (2d) 510 (C.A.), at p. 539 C.C.C. The interchange between trial Crown counsel and the trial judge was part of the trial and the appellants could not be deemed to have consented to being absent from it. The appellants had a vital interest in the Brown motion and in the opinions expressed by the trial judge as to the merits of that motion.

[138] The real issue on this ground of appeal is the application of the curative proviso in s. 686(1)(b)(iv). That provision gives the court of appeal discretion to dismiss an appeal where "notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby".

[139] The leading case in this province on the application of s. 686(1)(b)(iv) remains the judgment of Goodman J.A. in R. v. Cloutier, 1988 199 (ON CA), [1988] O.J. No. 570, 43 C.C.C. (3d) 35 (C.A.), leave to appeal to the Supreme Court of Canada refused [1989] S.C.C.A. No. 194, 50 C.C.C. (3d) vi. In that decision, Goodman J.A. held that, given the wording of the provision, a fundamental consideration is whether the appellant was prejudiced. He explained, [page119] however, that even if there were no prejudice to the appellant, the circumstances of the exclusion may be so serious as to require a new trial, for example, where a trial judge excludes an appellant intentionally after it has been brought to his or her attention that such exclusion is contrary to the provisions s. 650(1). In such a case, the Court of Appeal may exercise its discretion to allow the appeal so that justice will not only be done but will also be seen to be done: see Cloutier, at pp. 51-52 C.C.C. Thus, in R. v. Laws (1998), 1998 7157 (ON CA), 41 O.R. (3d) 499, [1998] O.J. No. 3623 (C.A.), the court refused to apply the proviso where the trial judge had intentionally and repeatedly excluded the appellant from part of the trial. In that case, both the appellant and his counsel had been excluded from private meetings between the trial judge and Crown counsel. In addition, because no transcript was kept, this court was unable to determine what went on during the in camera meetings. As the court said, at p. 525 O.R.:

The perceived fairness of the criminal justice system is its most vital characteristic. Public confidence requires public scrutiny wherever possible. Private trials which exclude the accused are antithetical to this core value. Where the circumstances of the exclusion of the accused are such as to inflict significant damage on the appearance of justice, the question is not whether there is prejudice to the accused. Rather, the issue is the harm to the criminal justice system itself. In such cases the court should refuse to apply this proviso.

[140] We are satisfied that the appellants in this case were not prejudiced by their exclusion from the in camera hearing, having regard to the several remedial steps taken by the trial judge at the time. A court reporter was present during the entire in camera hearing and that transcript was disclosed to the appellants. The portion of Crown counsel's notes that were the subject of the hearing were disclosed to the defence. The trial judge permitted the recall of the witnesses who had testified on the stay application (Brown and Detective Schultz) and said he would allow the defence to call any other evidence. Importantly, the trial judge said he would permit questioning of Mr. Sherriff subject to limitations on the scope of the examination. The appellants objected to those limitations and did not take up the offer to question Mr. Sherriff. Nevertheless, the offer was made. Whether the limitations would have hindered the appellants in their stay motion, either relating to Brown or to the improprieties of the in camera hearing, will never be known because the appellants declined the offer.

[141] Finally, in considering prejudice, it is significant that the appellants on appeal do not challenge the trial judge's ultimate [page120] ruling permitting Andrew Brown to testify. Thus, though armed with all of the information from the in camera hearing and the subsequent proceedings, the appellants do not suggest that the trial judge erred or that their ability to argue that motion was impaired.

[142] We turn now to the question of whether this is a case where the court should exercise its discretion against dismissing the appeal because of harm to the system itself. In our view, the chief concern on this branch of the argument turns on whether there is a perception that the trial judge prematurely decided the issues relating to Brown's testimony and the stay application against the appellants during the in camera hearing. This aspect of the application of s. 686(1)(b)(iv) necessarily overlaps with the appellants' submission that the trial judge should have recused himself because of a reasonable apprehension of bias. The test for reasonable apprehension of bias from the dissenting reasons of de Grandpré J. in Committee for Justice and Liberty, at p. 394 S.C.R., is:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. . . ."

[143] We have kept that test in mind in considering whether there was any harm to the system itself because of the conduct of the in camera hearing.

[144] The trial judge admitted that he erred in finding that Mr. Sherriff did nothing wrong in his handling of the Brown interview. The trial judge assured counsel that "I'm not relying on what [Mr. Sherriff] told me for the purpose of determining the stay application. I never had that intention whatsoever." Counsel seemed to accept that the trial judge would be able to do so. The trial judge stated that he was able to put aside his prematurely expressed view, and could decide the substantive issue objectively and fairly. As we have said, the appellants do not challenge the correctness of the ruling. The appellants learned about the premature finding from the trial judge himself when he returned to open court. As the trial judge noted, if Brown were allowed to testify, the chronology of his constantly changing story would be put before the jury and the jury would be given a strong warning about the danger of relying on his evidence.

[145] Taking the point of view of the informed person viewing the matter realistically and practically, we take into account that the parameters of the in camera hearing were unclear. After [page121] the fact, trial counsel for the appellants were sure that they had not agreed to any consideration of the propriety of Mr. Sherriff's conduct. Indeed, the trial judge in hindsight agreed that he was wrong to find that Mr. Sherriff had not done anything improper. However, it is not clear to us how the judge could make a finding on whether the notes should be disclosed without considering the propriety of Crown counsel's conduct.

[146] The in camera procedure was adopted because of the real concern that Crown counsel's notes were privileged. In their submissions, the parties referred to work product privilege. In Canada, the privilege is usually termed litigation privilege. Referring to General Accident Assurance Co. v. Chrusz (1999), 1999 7320 (ON CA), 45 O.R. (3d) 321, [1999] O.J. No. 3291 (C.A.), the authors of The Law of Evidence in Canada, at 14.186, describe litigation privilege as a zone of privacy within which a solicitor can prepare for trial without intrusion into his or her thoughts or work product: see Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst, The Law of Evidence in Canada, 3rd ed. (Markham, Ont.: LexisNexis, 2009). The increasingly broad scope of discovery in civil cases, and of Crown disclosure in criminal cases, has necessarily narrowed the scope of litigation privilege. As Carthy J.A. said in Chrusz, at p. 331 O.R.:

In effect, litigation privilege is the area of privacy left to a solicitor after the current demands of discoverability have been met. There is a tension between them to the extent that when discovery is widened, the reasonable requirements of counsel to conduct litigation must be recognized.

[147] An important limit to the scope of litigation privilege is explained in The Law of Evidence in Canada, at 14.203. The litigation privilege cannot be invoked "to protect from disclosure evidence of the claimant party's abuse of process or similar blameworthy conduct". As Fish J. said in Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, [2006] S.C.J. No. 39, at para. 45:

Even where the materials sought would otherwise be subject to litigation privilege, the party seeking their disclosure may be granted access to them upon a prima facie showing of actionable misconduct by the other party in relation to the proceedings with respect to which litigation privilege is claimed. Whether privilege is claimed in the originating or in related litigation, the court may review the materials to determine whether their disclosure should be ordered on this ground.

[148] Thus, in this case, the trial judge was right to review the notes to determine whether Crown counsel's notes were subject to privilege and whether disclosure should nevertheless be ordered because of misconduct by Crown counsel. Of necessity, this initial review had to take place in private. After the first [page122] stage of the review, the trial judge required input from Mr. Watson. At the second stage, he was still uncertain about whether the documents were privileged, for the very reason identified in Blank. There would be no privilege if there was misconduct. Hence, the trial judge embarked on the third and contentious stage of questioning Mr. Sherriff. It seems apparent now that the parties did not fully appreciate that a finding of whether the privilege existed would entail at least a prima facie determination of whether Mr. Sherriff had improperly threatened the witness. The trial judge made that determination and he disclosed it to the parties. He also told counsel that he would not rely upon anything Mr. Sherriff said during the in camera hearing in determining the substantive motion concerning Andrew Brown's testimony.

[149] In our view, a reasonable person, informed of the nature of litigation privilege and the need for the trial judge to make the determination without the presence of the appellants and their counsel, would not conclude that there was a reasonable apprehension of bias. Trial judges are often called upon to make rulings and then disabuse their minds of the evidence or information they have heard during the voir dire. Given the safeguards in the system and the remedial steps taken by this trial judge, especially disclosure of the notes and the transcript of the in camera hearing, we are satisfied that s. 686(1)(b)(iv) can be applied in this case.

Reasonable apprehension of bias

[150] In the course of discussing the application of the proviso in s. 686(1)(b)(iv), we have noted the overlap with the allegation of reasonable apprehension of bias. As Mr. Derstine said in his submissions, many of the same considerations apply to bias as apply to the perception of fairness under the proviso. We are satisfied that the appellants did not demonstrate that the trial judge displayed a reasonable apprehension of bias.

[151] We would not give effect to this ground of appeal.

Issue 4: Failure to sever Welsh's trial

1. Introduction

[152] Before dealing with the ground of appeal concerning Welsh's unsuccessful applications for severance, we set out more of the evidence, in particular, the cellphone and other evidence, independent of Brown and McLean, linking Welsh to the scene of the shooting. This evidence is of some importance in considering whether a joint trial resulted in any injustice to Welsh, since [page123] part of Welsh's argument on this ground of appeal hinges on the persuasive forensic value of the Robinson statements as compared to the evidence properly admissible against Welsh.

Summary of the cellphone evidence with respect to Welsh

[153] On October 15, 2004, six days after the shooting, Welsh was stopped while driving his black Chevrolet Cavalier. In the car, the police found two cellphones, including one with the number [information omitted]. The subscriber of this cellphone was Welsh's mother. His father was responsible for paying the account. Service was provided by Telus. Pinnock was linked to a Fido cellphone and Robinson linked to a Rogers cellphone. There were numerous calls between all three cellphones associated with the appellants on the night of October 9 between 8:00 p.m. and 11:08 p.m., bracketing the shooting shortly after 10:00 p.m. The summary below assumes the appellants were using the cellphones associated with them.

[154] Around 8:30 p.m., Welsh and Pinnock left Welsh and Robinson's Toronto home at 27 Ludgate and moved towards Lisa St. in Brampton. By 9:00 p.m., Welsh and Pinnock were very close to Lisa St. Also at 9:00 p.m., Welsh called the landline at 27 Ludgate; he received a call from Robinson at 9:10 p.m. By 9:15 p.m., Robinson was moving away from 27 Ludgate and heading towards Brampton. Robinson received a call from Welsh at 9:22 p.m. By 9:30 p.m., all three appellants were near Lisa St. Assuming Brown's testimony on this point to be correct, Welsh was now in his black Cavalier with Robinson, and Brown was with Pinnock in the van. In addition to the cellphone evidence, independent eyewitnesses placed a black Cavalier at the scene of the shooting. At 10:26 p.m., Robinson called Pinnock. By this time, they were both moving away from Lisa St. Assuming the appellants had not switched places, Welsh was with Robinson in the black Cavalier at this time and Brown was with Pinnock. In summary, the cellphone evidence places the three appellants converging on the scene of the shooting and leaving the scene after the shooting.

2. The appellant's position

[155] The appellant Welsh submits that the trial judge erred in refusing to sever his trial from that of his co-appellants. The argument presented at trial was that Welsh would suffer irreparable prejudice because of the admission of Robinson's statements to Cooper. In those statements, Robinson identified Welsh as the person who called him to the scene of the killing [page124] and to whom Robinson delivered the gun used by Welsh in the shooting. Welsh submits that those statements would not be admissible at a trial in which only Welsh was tried. We refer to this as the "improper use argument".

[156] On appeal, Welsh somewhat reframed the basis for severance. He argues that once the jury was satisfied of the guilt of the co-appellants, especially Robinson, on the basis of evidence that was largely inadmissible against him, the jury would inevitably find him guilty, irrespective of the weakness of the Crown case against him. This argument flows from the theory that once the jury concluded, based on the statements to Cooper, that Welsh had called Robinson and Robinson had then attended at the scene with the gun, there was nothing left to litigate with respect to Welsh. In other words, using the statements against Robinson, a permitted purpose, would lead to the conviction of Welsh. The jury could not convict Robinson of being a party to murder unless they were satisfied beyond a reasonable doubt that he received a call from Welsh and in response to that call brought the gun to Welsh, which Welsh used in the shooting. By this argument, Welsh seeks to avoid the possible mitigating effects of the editing and the limiting instructions. We refer to this as the "proper use argument".

3. The severance application

[157] Trial counsel for the appellant applied for severance at various stages of the trial, beginning with a pre-trial motion. During the argument of the first motion, the trial judge raised the question of editing the Obeahman tapes to reduce the prejudice to Welsh. In the end, the trial judge adjourned the severance application. The application would be renewed several more times during the trial.

[158] The first such occasion followed the opening by Crown counsel. In the course of the opening, counsel referred to statements Robinson made to Cooper and Brown in which he identified Welsh as the recipient of the gun and as one of the shooters. Defence counsel submitted that the possibility of minimizing prejudice to Welsh through editing had been lost as a result of Crown counsel's opening. Defence counsel did not suggest that Crown counsel had acted improperly. It seems that Crown and defence had jointly reached the conclusion that editing was not feasible. Be that as it may, after the trial judge dismissed the motion for severance at this stage, defence counsel stated that he had instructions from his client to consider editing. [page125]

[159] The severance motion was briefly renewed in the context of edits to the testimony of Brown. According to Brown, Robinson told him that Welsh had been one of the shooters. Crown and defence appeared to agree that Brown's testimony could not be edited to remove reference to Welsh, apparently because this part of Brown's account was essential to Robinson's position. Counsel for Welsh renewed the severance application after the cross-examination of Brown by counsel for Robinson, during which it was suggested that the statements by Robinson to Brown were true. Following argument, the trial judge dismissed the application.

[160] After reviewing the applicable principles, the trial judge referred at some length to this court's decision in R. v. Olah (1997), 1997 3023 (ON CA), 33 O.R. (3d) 385, [1997] O.J. No. 1579 (C.A.). In that case, the trial judge had dismissed the severance application and sought to reduce any prejudice through judicious editing of the videotape evidence. This court upheld that trial judge's decision.

[161] The trial judge in this case held that, by adopting a similar procedure, he could balance the fair trial rights of all of the accused, including Welsh, with the Crown's responsibility to prosecute violent crime. As he said, at para. 28 of his ruling:

In my view, the evidence heard to this point in the trial from Brown and the anticipated evidence from the undercover officer playing his Obeahman role is less "powerful" than that confronting Lesage J. in Olah. Thus, an editing/limiting instruction approach should be sufficient to produce a fair and balanced result for the competing interest in this case.

[162] The trial judge left it open to Welsh to renew his application if circumstances changed. The parties continued the process of editing the Obeahman tapes. While the tapes continued to include Robinson's assertion that he had brought a gun to the murder scene at Welsh's request, his reference to Welsh actually participating in the shooting was edited out.

[163] Welsh renewed the application for severance one last time after the closing addresses. This application was based on the fact that counsel for both co-appellants had treated the Obeah statements as credible, as a foundation for the argument that their clients were guilty only of manslaughter. The trial judge dismissed the application.

[164] Throughout the trial and in his charge to the jury, the trial judge repeatedly warned the jury that Robinson's statements to Brown and Cooper were not evidence against Welsh.

4. Analysis of the severance issue

[165] As we have said, there are two prongs to the severance argument. First is the position advanced at trial that there was [page126] irreparable prejudice to Welsh because of the likelihood that the jury would make improper use of Robinson's statements to Brown and Cooper. Second is the argument that there was irreparable prejudice in a joint trial because Welsh's conviction would flow from a proper use of this same evidence to convict Robinson. We do not accept either submission.

(a) Improper use of Robinson's statements

[166] As Mr. Campbell fairly submits, if limiting instructions could prevent prejudice to Welsh, the instructions given by the trial judge in this case would be sufficient. His position is that no instruction could reduce the prejudice to a tolerable level and that the only effective way to ensure a fair trial for Welsh was severance. He submits that the Robinson statements were particularly prejudicial because the jury would attach a great deal of weight to them, especially as they affected Welsh. Robinson's statements were made in a solemn, if contrived setting, and were about his own brother.

[167] As we have noted, the trial judge relied upon this court's decision in Olah. He adopted a remedy similar to that used by Lesage J. in Olah: editing the videotape evidence. In Olah, the prejudice arose from a graphic and detailed account that Olah gave in a videotaped interview with the police of his co-accused Ruston's involvement in the killing of a customer at the gas bar where Ruston worked. Justice Lesage edited out many of the most prejudicial parts of Olah's statement, although he recognized that parts remained that would cause prejudice to Ruston unless the jury were cautioned in very clear and specific terms as to the use that could be made of Olah's statements. Speaking for the court, at p. 400 O.R., Osborne J.A. concluded that Lesage J. had properly exercised his discretion:

In my opinion, the trial judge carefully considered all of the appropriate factors, including, most importantly, prejudice to Ruston, as a result of Olah's comments about him in his police statements. The trial judge was alert to the potential for a miscarriage of justice in respect of Ruston arising out of Olah's extensive audio-taped and video-taped statements to the police. He exercised a discretion that was open to him when he refused Ruston's application for severance after undertaking extensive editing of the statements. This court should not interfere with the exercise of his discretion unless we are satisfied that he did not exercise his discretion judicially, or that his order refusing the severance application resulted in a miscarriage of justice: see R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333 at pp. 353-54, 86 C.C.C. (3d) 97 at pp. 113-14, and R. v. Court (1995), 1995 1741 (ON CA), 23 O.R. (3d) 321 at p. 342, 99 C.C.C. (3d) 237 at p. 259.

I do not think that the trial judge was unmindful of the increased potential for prejudice arising from the jury hearing Olah's audio-taped statement and hearing and seeing him give his video-taped statement. When he [page127] commented on the principles applicable to severance applications, he did no more than note that the same principles apply when an application for severance is based on the prejudicial effect to accused caused by the admission into evidence of a statement of a co-accused, in whatever form the statement may be received by the jury. I am satisfied that the trial judge took account of the medium by which the jury would receive Olah's statements.

[168] We reach a similar conclusion in this case. The principles respecting severance are well known and summarized in decisions such as R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333, [1993] S.C.J. No. 127 and R. v. Last, [2009] 3 S.C.R. 146, [2009] S.C.J. No. 45, 2009 SCC 45. A trial judge has a great deal of discretion in deciding whether to sever counts or accused. Thus, an appellate court should not intervene unless it is satisfied that the judge "acted unjudicially or that the ruling resulted in an injustice": see Litchfield, at p. 354 S.C.R.

[169] The ultimate question is whether severance is required in the interests of justice. In a case involving severance of accused, the interests of justice require considering the accused's right to be tried on the evidence admissible against him. But, they also require considering that justice should be done in a reasonably efficient manner and in a way that avoids inconsistent verdicts. In Last, at para. 18, the court identified some factors that apply to the severance of counts and accused:

The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served in a particular case, avoiding an injustice. Factors courts rightly use include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co-accused persons.

[170] One other consideration, identified in R. v. Guimond, 1979 204 (SCC), [1979] 1 S.C.R. 960, [1979] S.C.J. No. 16, is whether the admissible evidence against the accused seeking severance is substantially weaker than the evidence admissible against the co-accused.

[171] We have not been persuaded that the trial judge acted unjudicially in refusing severance based on the risk of improper use of the Robinson statements. The trial judge resorted to several methods to minimize the prejudice to Welsh. He edited the Robinson statements and he gave the jury simple but emphatic instructions about the proper use of evidence both during the trial and also in the charge to the jury. Finally, he adopted the [page128] device of dealing with each accused separately in the charge to the jury. Thus, the evidence the jury could use against each of the appellants was segregated in the charge to the jury.

[172] We acknowledge that there is always a risk that the jury will not follow the trial judge's instructions, but that risk was attenuated in this case because of the manner in which the trial judge dealt with the evidence.

[173] We turn first to the editing of the Robinson statements. With respect to Brown's evidence, the trial judge ruled that Brown would not be permitted to testify that Robinson told him that Welsh was one of the shooters or that Welsh used the gun to kill the deceased. He was, however, permitted to testify that Robinson told him that he brought a gun to Welsh.

[174] With respect to the Obeah statements, the editing was substantial. Any reference to Robinson having seen Welsh leave the vehicle and shoot the deceased was edited out, as was reference to Welsh being one of the shooters. This included editing out statements by Robinson that his mother had cleaned the gun after the killing and returned it to Welsh. As a result of the editing, the Robinson statements were ultimately consistent with Welsh's position with respect to Brown's trial testimony: that while Brown had seen several people participate in the killing, he never saw Welsh get out of the Cavalier and shoot the deceased.

[175] As we have said, the trial judge gave clear and emphatic directions about the use to be made of Robinson's statements to Brown and Cooper. There are many examples throughout the proceedings, including instructions before and during Cooper's evidence. In addition, the charge to the jury contains a number of clear instructions that what Robinson said about Welsh could not be used against Welsh. The following, part of the mid-trial instruction given during Cooper's evidence, is typical:

And remember my earlier instruction that what one defendant says to the Obeahman may be used by you as evidence for or against only the speaker. If a defendant mentions another defendant anything the first says about the other cannot be used by you as evidence for or against the second. However, if the second defendant is also present, as is the case in one tape you will hear and see, what one says about the other may be evidence for or against the second only if he, the second defendant, adopts or agrees with the words of the speaker.

So, just to be specific, anything said by Mr. Robinson or Mr. Pinnock cannot be used as evidence for or against Mr. Welsh. Mr. Welsh is not seen or heard on any of the tapes, so that all of what you hear and see on the tapes cannot be considered by you when deciding his guilt or innocence in this matter. And, of course, nothing said by Mr. Robinson about Mr. Pinnock, unless he is present and adopts what is said, can be used as evidence for or against Mr. Pinnock. And vice versa, nothing said by [page129] Mr. Pinnock about Mr. Robinson is evidence for or against him unless he is present and adopts what is said.

[176] Finally, the trial judge adopted the procedure of dealing with the case of each accused separately. Thus, in his review of the case respecting Welsh, the trial judge referred only to evidence properly admissible against him: largely, the testimony of McLean and Brown and the cellphone records. The trial judge characterized the case against Welsh as being one based solely on circumstantial evidence.

[177] We also note that Crown counsel in his closing address adopted the same format of dealing with each accused separately and reiterating the limiting instruction. Counsel for the appellant Welsh also did a masterful job of isolating for the jury the evidence that was and was not admissible against his client, and pointing out the unfairness to Welsh if the jury misused inadmissible evidence.

[178] We are satisfied that the trial judge did not improperly exercise his discretion in refusing to sever Welsh's trial. He recognized that the risk of prejudice to a fair trial arose from the improper use of Robinson's statements to Brown and Cooper posing as the Obeahman. He substantially edited the statements to reduce the prejudice and then instructed the jury in such a manner as to minimize the prejudice from misuse of the remaining evidence that referred to Welsh. For similar reasons, we are satisfied that the joint trial did not result in an injustice.

(b) Proper use of Robinson's statements

[179] In the alternative, Welsh argues on appeal that even the proper use of Robinson's statements would lead to irreparable prejudice. We have set out the argument above. In short, the jury would be asked to do the impossible. Through the proper use of the Robinson statements, they would have found Robinson guilty and then have to set that finding aside to consider the case against Welsh. A verdict of guilty against Robinson would imply the truth of the Crown case against Welsh; the jury must have decided that Welsh did what the Crown alleged. Mr. Campbell submits that failure to grant severance undermined the presumption of innocence because as a result of the joint trial the conviction of Robinson would lead to the conviction of Welsh, irrespective of the strength of the evidence against Welsh. In his submissions, Mr. Campbell distinguishes the large body of severance case law, including Olah, because those cases did not involve the problem posed here of the conviction of one accused leading to the inevitable conviction of the other accused. [page130]

[180] While it is true that most of the severance cases have turned on the problem of improper use of evidence inadmissible against the accused seeking severance, that is not true of all the cases. An example is the Guimond decision from the Supreme Court of Canada. Guimond involved the problem of misuse of inadmissible evidence, in that case a confession by Guimond mentioning his co-conspirator Muzard. But, the court also recognized a particular problem in that case: that in a two-person conspiracy, it would be difficult for the jury to convict Guimond of conspiracy without also finding the only other conspirator, Muzard, guilty. Speaking for the majority, Ritchie J., at p. 968 S.C.R., referred with approval to the reasons of Bélanger J.A. of the Quebec Court of Appeal, who wrote as follows:

However, it is difficult to imagine that, in the same trial, the jury could accept as true Guimond's confession that he was guilty of an illegal agreement with Muzard, without coming to the same conclusion towards the latter, or at least without all other evidence presented by the Crown being thereby coloured in the sense of such an illegal agreement, regardless of Guimond's and Muzard's denials.

[181] The court did not, however, suggest that there must always be a separate trial in such circumstances. Rather, severance may be required where there is a significant imbalance in the evidence. As the court said, at p. 981 S.C.R.:

I am of the opinion also that, whenever it is apparent that the evidence at the joint trial of two alleged co-conspirators is substantially stronger against one than the other, the safer course is to direct the separate trial of each and this is particularly the case when the prosecution is tendering in evidence a damaging statement made by one under circumstances which made it inadmissible against the other.

[182] We do not suggest that the relative strength of the prosecution case against various accused is the only factor to consider where the conviction of one accused implies the conviction of a co-accused. It is, however, an extremely important consideration. The reason for that is apparent. Where the case against the accused seeking severance is weak and the case against the other accused substantially stronger, there is a greater risk that the jury will resort to the impermissible reasoning of guilt by association to shore up the case against the former.

[183] This, however, is not a case where there was a significant imbalance in the cases against the three accused. If interpreted as argued by the Crown, the Obeah statements did make a compelling case against Robinson. But, there was also a substantial circumstantial case against Welsh in the evidence of Brown and McLean and in the cellphone records. While the testimony of Brown and McLean had certain frailties, the cellphone [page131] evidence was persuasive evidence placing Welsh at the scene of the killing, lying in wait for the deceased and then fleeing the scene after the killing.

[184] The appellant tries to paint his situation as uniquely prejudiced. However, as Ms. Loubert pointed out in her submissions for the Crown, Welsh's situation is not unusual in cases of multiple accused where the accused are alleged to have played different roles. The fate of parties and principal offenders are almost inevitably intertwined. Trial judges deal with this problem by instructing the jury to deal with each accused separately and only consider the evidence admissible against the particular accused. In this case, the trial judge went further. As we have pointed out, he did not simply instruct the jury to consider the cases against each accused separately. In his charge to the jury, he dealt with each accused separately and isolated for the jury the evidence they could use to consider the case against the particular accused. We are satisfied that the joint trial of Welsh with his co-appellants did not result in an injustice.

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

[186] We would add that we have reached this conclusion without having to consider Ms. Loubert's interesting argument that there would be no benefit to the appellant from a separate trial because the Robinson statements would still be admissible. This argument was premised on the theory that the Crown would call Robinson as a witness and if he failed to implicate Welsh as he had in the Obeah statements, those statements would be admitted as an exception to the hearsay rule in accordance with R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22. On this view, Welsh would actually be in a worse position in the event of a separate trial, because the statements, being admissible as an exception to the hearsay rule, would be received by the jury in their unedited form. Thus, the jury would hear that Robinson had told Cooper that Welsh was one of the shooters. However, because Robinson would be available for cross-examination by counsel for Welsh, it is speculative whether Welsh would in fact be more prejudiced by a severed trial.

Issue 5: Charge to the jury on calling out the shooters

1. Introduction

[187] This ground of appeal relates only to the appellant Pinnock. In his closing address to the jury, Crown counsel suggested that the jury could find Pinnock guilty of first degree [page132] murder because he called other people to come to the scene and therefore assisted in planning the killing. This theory was based on the cellphone records that showed that between 8:50 p.m. and 9:06 p.m. Pinnock placed five calls where he first dialled *67. By doing so, Pinnock was able to block his identity from the recipient. Crown counsel tied these calls in with the following dialogue between Pinnock and Cooper:

Pinnock: Made a call and then left.

Cooper: Who you call?

Pinnock: I didn't call anyone.

[188] Crown counsel suggested that Pinnock resiled from his admission that he made a call because he did not want to name the shooters and he was able to say he did not call anyone because he had blocked the caller identification. Crown counsel therefore suggested that Pinnock "called out the shooters"; he "called out the other car".

[189] Defence counsel, in her closing, dealt with the issue and plainly put to the jury her position that this theory was speculative.

[190] In his own review of Pinnock's liability for first degree murder, the trial judge referred to the evidence of Brown and Cooper. He put the basis for liability on the theory that Pinnock was acting as a lookout. He did not refer to the "call out the shooters" theory.

[191] In his detailed review of the positions of the Crown and defence, the trial judge did deal, if briefly, with the theory that Pinnock called out the shooters. First, the trial judge set out the Crown's position on this theory, as follows:

The Crown's position is that Pinnock called out the additional shooters. He call-blocked those calls made close to the time Welsh was calling out Robinson, but did not call-block other calls.

[192] He then summarized the position of the defence on the same theory:

Mr. Sherriff then tries to advance the new theory that Pinnock called in the shooters. This theory is highly speculative and not based on evidence, says the defence. Pinnock has no idea who the shooters are as shown by his comment to Cooper, "How am I supposed to know who these people are? And the defence asks you to recall the candle lighting ceremony where he is being told by Robinson what to say. If you're involved in the planning and implementation of a murder, surely you would know the people involved.

[193] Trial counsel for Pinnock objected to the charge to the jury. Counsel submitted that the trial judge should instruct the jury that the theory that Pinnock was involved in the planning [page133] of the killing was speculative and that there was no evidence to support it. The trial judge appeared to agree that there was no evidence that Pinnock was a planner. However, he stated that the Crown was entitled to have its theory summarized in the charge to the jury.

2. Analysis of the calling out the shooters issue

[194] In our view, this ground of appeal raises three issues. First, was the defence unfairly surprised by the theory that Pinnock helped to plan the killing? Second, was the theory supported by the evidence? Third, if not, was the trial judge required to advise the jury that the theory was speculative and must be ignored?

(a) Unfair surprise

[195] We are satisfied that the defence was not unfairly surprised by the theory that Pinnock could be liable for first degree murder for assisting in planning the killing. In his opening, Crown counsel repeatedly referred to Pinnock's liability as being one of the planners. Below are some excerpts from the Crown opening:

Our case is that this reveals that Pinnock was hands-on in finding Oraha at an early stage that night.

Pinnock did admit to Leon that he made a call and said he was there in reference to the white boy. He did not specify when he made that call. Our case is that Mr. Pinnock was the spotter and that this call was probably made during what we allege were their surveillance activities which I will describe in a minute.

So our case is that Pinnock was directing surveillance just before the murder.

So our case is that Pinnock was using surveillance looking for Oraha and also looking out for police patrols.

Now, ladies and gentlemen, our case is that this was cold blooded premeditated murder, that's why the charge is first degree murder. We will prove that Jahmar Welsh was one of the shooters. We will prove that Evol Robinson, the man in the middle, brother of Jahmar, knew he was aiding the murder by making by -- because he was what the law will call -- you will need to take the law from His Honour, of course, what the law will call a party to the offence. So we say that Evol Robinson assisted this crime. Our case is that Ruben Pinnock was in on the planning as evidenced by evidence that he persuaded Welsh to go to the area -- that's what he said himself -- [page134] that night to find Oraha. We will also prove that defendant Pinnock deliberately aided the murder by conducting surveillance looking for Oraha and also did double duty aiding the murder by keeping a lookout for the police or perhaps from across the road making him a party to the offence.

So to summarize, in order left to right, we say first of all that we have Mr. Pinnock, whose role I just described, in on the planning, conducted surveillance and acting as a lookout.

[196] Given the Crown opening, it cannot be said that the appellant Pinnock was unfairly surprised that it was a theory of the Crown that Pinnock helped to plan the shooting. It is apparent that the defence did not anticipate that the Crown would rely upon the blocked calls as evidence of planning. But, there is no suggestion that this evidence was not disclosed well in advance of the trial. The prosecution is not required to alert the defence to every inference it may ask the trier of fact to draw from the evidence. Provided the defence has had an ample opportunity to respond, it cannot be said that the defence has been unfairly prejudiced.

[197] In her jury address, counsel for Pinnock dealt briefly but effectively with the Crown counsel's theory about the blocked calls:

And it makes this new Crown theory that Ruben is somehow directly involved with the shooters by calling them in plainly nonsense. But I'm going to add to this the difficulties with the speculation by talking about Mr. Sherriff and Mr. Watson's contention that this cell phone evidence supports this theory that Ruben was calling the shooters. And you'll recall that they referred to the blocked calls. There was the code A67 in front of a number of the calls. I'm not sure if we can get -- is it possible to put the call -- you have those records in front of you. I'm not -- you don't need to see them to understand what I'm talking about, but it's the -- those calls with the blocked calls. It's calls four and five and seven, eight and nine.

And I'm going to suggest to you, how does this make sense? To block your call means you block your number on the screen of the person you're phoning. Okay. It doesn't disguise your voice. Presumably, these people know who you are. Ruben is phoning shooters to call them in, presumably they know who he is. Who's he supposed to be calling? Shooters anonymous? The theory is that these are people he is calling in. Where is there any evidence whatsoever that these numbers belong to shooters? We can see, obviously, that the police have access to these records, are able to come up with all these detailed records. Where are they? Where are these shooters? We've got the numbers there. They're right on the records. Why has the Crown not called any evidence to say we know that this number belongs to Mr. X and we allege that he's a shooter. There's nothing there. Be wary of what Mr. Sherriff is doing. I'm suggesting to you he's putting the most sinister twist on the phrase, "made a call" in the face of all reason and common sense. Mr. Sherriff is trying to plant a suspicious seed in your minds and hoping that you'll latch on to it. And there's nothing there. [page135]

(b) Evidentiary basis

[198] We are also satisfied that there was a body of evidence from which the jury could infer that Pinnock did assist in planning the killing. The statements by Pinnock to Cooper can be interpreted as admissions that he convinced Welsh to come to Lisa St. because he believed that the deceased was there. At the scene itself, Brown and Welsh changed places. Brown joined Pinnock and Pinnock parked in a spot where he could see the deceased's car. He remained in place until the shooting. During the period from 8:28 to 10:09 p.m., there were 13 calls to or from Pinnock's cellphone. For five of those calls, Pinnock used the call-blocking feature. After the shots were fired, Pinnock rapidly followed Welsh's vehicle away from the shooting. Finally, Pinnock told Cooper that he made a call before the shooting. Based on this body of evidence, it was open to the prosecution to argue that Pinnock did help to plan the killing by bringing Welsh to the scene and acting as lookout and possibly calling others to the scene. The call-blocking aspect of this theory was speculative. There was no evidence as to who Pinnock called during this time and there would seem to be no possible reason for Pinnock to use the call-blocking feature if indeed he was calling other people to take part in the execution of the deceased, unless he did not properly understand how that feature worked.

(c) Trial judge's duty

[199] That leaves for consideration whether the trial judge should have told the jury that the call-blocking aspect of the Crown's theory was speculative. It is established in cases such as R. v. Rose (1998), 1998 768 (SCC), 40 O.R. (3d) 576, [1998] 3 S.C.R. 262, [1998] S.C.J. No. 81 that the trial judge has a duty to correct errors that counsel make, in order to preserve the fairness of the trial process.

[200] It is apparent from the dialogue with defence counsel that this trial judge has always adopted the approach of not commenting on the evidence. It seems clear that he viewed defence counsel's objection as asking him to comment on the evidence. He apparently did not see what Crown counsel had said about calling out the shooters as anything more than Crown counsel's submission to the jury on the inferences that could be drawn from the evidence. By fairly placing the Crown and defence submissions on the issue before the jury, the trial judge presented a fair and balanced picture; the weight to be placed on the evidence was for the jury.

[201] In some circumstances, the trial judge may be required to instruct the jury that an inference of liability is not available [page136] on the evidence. We agree with the statement of principle from R. v. Khan, 1998 27756 (MB CA), [1998] M.J. No. 324, 126 C.C.C. (3d) 353 (C.A.), at para. 51:

There is no general rule that a trial judge must correct Crown counsel's misstatements or invitations to draw unavailable inferences. Nonetheless, where the misstatements or invitations are sufficiently prejudicial to the accused, the trial judge may become obliged to correct them: R. v. Romeo, 1991 113 (SCC), [1991] 1 S.C.R. 86. Where the trial judge becomes so obliged, the familiar observation that the jury alone are judges of the facts and that they may disregard counsel's comments concerning the facts is not a sufficient correction: Pisani v. The Queen, 1970 30 (SCC), [1971] S.C.R. 738.

[202] In our view, the invitation to speculate from the use of the blocked number feature was not sufficiently prejudicial to the accused that the trial judge's failure to correct Crown counsel was reversible error. We do not agree that the blocked-call feature gave the jury an independent path to finding Pinnock liable for first degree murder. It was simply some evidence upon which the Crown relied to draw the inference that Pinnock planned the killing.

[203] It may be that this particular piece of evidence did not support the inference the Crown sought to draw. But, as we have said, there was a substantial body of other evidence to support the inference that Pinnock was a party to first degree murder. The speculative support from the use of the call-blocking feature was a relatively minor aspect of the case against Pinnock. The defence had ample opportunity in its jury address to argue that the inference was speculative, and the trial judge fairly presented that argument in his own review of the defence position. The trial judge, as we have said, did not refer to this evidence as a route to liability when he gave his instructions on the facts and the law. We would not give effect to this ground of appeal.

Issue 6: Vetrovec warning on Lasharn McLean

[204] Counsel for Welsh argues that the trial judge erred in refusing to give a Vetrovec warning (R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811, [1982] S.C.J. No. 40) in respect of McLean. It will be recalled that McLean was the deceased's girlfriend. After arriving at the police station, she told the police about the shooting, but said that she did not see the killers. Later, when she was told Oraha had died, she identified Welsh as being at the scene.

[205] McLean explained why she had changed her story. Originally, she had feared reprisals but her mother encouraged her to change her story and told her she would let her leave the country and live with her father in Trinidad. The defence attacked that explanation on the basis that the evidence showed [page137] her mother was with her for most of the time she was at the police station. She had previously visited Trinidad on her own and did not need her mother's permission. The fear of reprisals story also did not make much sense because McLean had told the police that Welsh (she used his nickname "Teddy") was someone with a grievance against the deceased. Finally, McLean was cross-examined on an incident when she had claimed to have been kidnapped and raped, and gave a false account about her knowledge of a gun owned by the deceased.

[206] Trial counsel for Welsh argued that McLean required a Vetrovec warning. The trial judge decided not to give the warning. In our view, the trial judge did not err in not giving the special warning. The trial judge did give a special warning to the jury concerning McLean as an eyewitness. The trial judge also reviewed McLean's evidence at length, including the matters relied upon by the defence as undermining her credibility.

[207] In R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599, [1993] S.C.J. No. 69, at p. 614 S.C.R., the court held that the trial judge's "discretion whether to give a Vetrovec warning should generally be given wide latitude by appellate courts". McLean did not fall within the class of witnesses where a Vetrovec warning was mandatory. She was not an accomplice, did not have a lengthy criminal record and could not be described as an unsavoury witness. There were factors that could undermine her credibility, but these were apparent on the record. As this court said in R. v. Sauvé, 2004 9054 (ON CA), [2004] O.J. No. 248, 182 C.C.C. (3d) 321 (C.A.), at paras. 76 and 81:

The purpose of the Vetrovec warning is to alert the jury that there is a special need for caution in approaching the evidence of certain witnesses whose evidence plays an important role in the proof of guilt. The caution is of particular importance where there are defects in the evidence of a witness that may not be apparent to a lay trier of fact. Perhaps the most important of these is the jailhouse informer.

In sum, the need for this special care and for informing the jury of the reasons for the special care rests on the concern that the lay members of the jury simply do not have the necessary experience to adequately assess the credibility of these types of witnesses. This is not to say that such witnesses are incapable of telling the truth or that their evidence can never safely constitute an acceptable basis for a conviction. Rather, we say only that this kind of evidence must be approached with caution.

[208] There may have been problems with McLean's credibility but there was no need for special caution in approaching her evidence. The jury's common sense and experience adequately equipped them with the tools necessary to correctly and fairly analyse her evidence. We would not give effect to this ground of appeal.