COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Little, 2014 ONCA 339

DATE: 20140430

DOCKET: C51441

Doherty, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Little

Appellant

Christopher Little, appearing in person

Russell Silverstein and David S. Rose, appearing as amicus curiae

Eric Siebenmorgen, for the respondent

Heard and released orally: April 10, 2014

On appeal from the conviction entered on November 25, 2009 by Justice Michelle Fuerst of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] Mr. Little was convicted of two counts of murder. He represents himself on the appeal. Mr. Silverstein was appointed under s. 684 to argue certain issues arising out of the trial judge’s ruling that certain evidence obtained from a search of the appellant’s cellphone and from a search of his workplace computer were admissible despite the violations of the appellant’s rights under s. 8 of the Charter.

[2] Mr. Silverstein has argued the issue with his usual force and clarity. He focused primarily on the evidence obtained from the search of the workplace computer. That search produced evidence of an internet search of the home address of Ms. Menendez, one of the victims. The material included a map showing the precise location of her home. This was potentially important evidence for the Crown.

[3] In holding that the evidence was admissible, the trial judge carefully considered the three factors identified in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The factual findings underlying her legal analysis are entitled to deference in this court.

[4] Despite Mr. Silverstein’s submissions, we see no error in the trial judge’s application of the “Grant factors” to the search of the cellphone. We need say no more on that issue as Mr. Silverstein did not press the point in oral argument.

[5] We did call on the Crown to respond to Mr. Silverstein’s submission that the trial judge erred in finding that the interference with Mr. Little’s privacy interest flowing from the search of his workplace computer “falls at the lowest end of the scale”.

[6] Mr. Silverstein argued that given the intrusive nature of that search, the material accessed by the police and the appellant’s significant privacy interest (despite the fact that the computer belonged to his employer), the interference with the appellant’s privacy rights went well beyond “the lowest end” of the scale. He submits that if the impact of the breach on Mr. Little’s privacy rights is properly assessed, s. 24(2) favours exclusion.

[7] Mr. Siebenmorgen for the Crown contends that the trial judge’s finding of a relatively minimal impact on Mr. Little’s privacy interest was fully warranted on the evidence. He stresses that a determination of the nature of the privacy interest engaged and the impact of the breach on that privacy interest on a person’s s. 8 rights demand a fact-specific case-by-case inquiry. Mr. Siebenmorgen points to the trial judge’s factual findings on her s. 8 ruling. He argues that those findings were available to her on the evidence and justify her subsequent characterization of the s. 8 breach as at the “lowest end of the scale”.

[8] We think Mr. Siebenmorgen has the best of this argument. Cases from the Supreme Court of Canada subsequent to the trial judge’s ruling, e.g. R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657 and R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, support the case-by-case consideration of the nature of the privacy interest engaged and the impact of the s. 8 breach on that privacy interest. As made abundantly clear in Vuand Cole, this case-by-case approach applies to searches of computers.

[9] Several factual findings made by the trial judge particular to the evidence in this case diminished the appellant’s reasonable expectation of privacy and hence, the impact on his privacy rights of the s. 8 breach. In our view, the trial judge’s finding is entitled to deference and should stand. The evidence was properly received.

[10] Mr. Little made several submissions on his own behalf. He provided carefully written helpful submissions to the court and amplified those submissions in oral argument. Mr. Little’s arguments fall into three categories.

[11] First, he attacks several submissions made by the Crown in his closing address as inaccurate and prejudicial. In our view, the vast majority of the Crown’s submissions were unobjectionable. The Crown is entitled to make arguments that are open on the evidence even if the Crown did not specifically put those arguments to the appellant when he was testifying. The failure to do so at most goes to the weight the jury might attach to the Crown’s argument.

[12] To the extent that the Crown overstated the evidence, we see no prejudice. The jury was repeatedly told that the submissions of counsel did not constitute evidence and it was their recollection that must be relied on in determining the facts. We note as well that very experienced defence counsel did not object to the Crown’s closing. We would not give effect to this argument.

[13] Mr. Little’s second area of complaint arises out of the trial judge’s charge to the jury. He argues that the trial judge made three factual errors in her instructions to the jury. After considering each, we think there was only one misstatement of the evidence. The trial judge told the jury that there was evidence that traces of blood from Julie Crocker, one of the victims, were found on the appellant’s shoelaces. As we understand the evidence, while there was trace blood found on the shoelaces, it could not be identified as Ms. Crocker’s blood.

[14] Considered in the context of the entirety of the blood evidence, we regard this as a minor error. Furthermore, the jury had the blood evidence in chart form and no doubt would refer to the chart when considering the blood evidence and what inferences, if any, to draw from it.

[15] The trial judge told the jury more than once that it was their recollection of the evidence which must govern their deliberations. There was no objection. Indeed, we think it quite remarkable given the length of this case and the very detailed review of the evidence provided by the trial judge, that she made only a single factual error. Certainly, that error did not prejudice the appellant and is not enough to warrant a new trial.

[16] The third argument put forward by the appellant arises out of the evidence of statements made by the victims, Ms. Menendez and Ms. Crocker. Counsel compiled a chart summarizing those statements for the jury. The chart was jointly prepared by counsel and presented to the trial judge as an appropriate way to put the evidence before the jury. The appellant’s evidence about statements made by Ms. Menendez and Ms. Crocker was not summarized in that chart. He submits that the absence of reference to his evidence is prejudicial and requires a new trial.

[17] We must reject this submission. First, we will not second guess considered tactical decisions made by counsel at trial. Counsel were obviously content with the way the evidence of the statements was placed before the jury. Second, the appellant’s evidence as it related to these statements was put to the jury, albeit in a different part of the trial judge’s instructions. We see no prejudice or unfairness arising out of the way the trial judge dealt with the evidence of the statements made by Ms. Crocker and Ms. Menendez.

[18] The appeal is dismissed.

“Doherty J.A.”

“K. van Rensburg J.A.”

“M.L. Benotto J.A.”