COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stevenson, 2014 ONCA 842

DATE: 20141126

DOCKET: C51209

Doherty, Rouleau and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Stevenson

Appellant

Edward L. Greenspan, Q.C., Michael W. Lacy and Anida Chiodo, for the appellant

John McInnes, for the respondent

Heard: June 12, 2014

On appeal from the conviction entered on October 7, 2009 by Justice Lynn D. Ratushny of the Superior Court of Justice, sitting with a jury.

Doherty J.A.:

I. Overview

[1] Stefanie Stevenson was murdered at about 7:20 p.m. on December 23, 2006, as she left her home on her way to work at the local hospital. Ms. Stevenson was shot once in the head by an assailant who appeared from beside her house as she walked the very short distance between her home and her van parked in the driveway. The appellant, Ms. Stevenson’s estranged husband, was arrested and charged with first degree murder about two hours later.

[2] Identity was the only issue at trial. It was agreed that whoever shot Ms. Stevenson was guilty of first degree murder. The Crown’s case was circumstantial. There were no eye witnesses and the murder weapon was never recovered. The appellant did not testify.

[3] The appellant appeals from conviction. Counsel who were appointed pursuant to s. 684 of the Criminal Code, R.S.C. 1985, c. C-46, diligently advanced several grounds of appeal. The court required oral submissions from the Crown on the appellant’s argument that the trial judge wrongly admitted evidence of gunshot residue (GSR) found on the appellant’s hands and clothing and on the argument that the trial judge misdirected the jury as to the potential evidentiary value of certain statements the appellant made to the police after his arrest. These reasons will address only those issues.

II. The Evidence

[4] The evidence can be grouped under six headings:

• The nature of the shooting
• Motive
• Opportunity
• The appellant’s attempt to purchase a gun
• The GSR evidence
• The appellant’s statements to the police

A. The nature of the shooting

[5] This was not a random shooting. Robbery was not the motive. The evidence supported the inference that the killer lay in wait for Ms. Stevenson at the side of her home. The appellant knew Ms. Stevenson had moved into the home some three weeks earlier. He also knew Ms. Stevenson’s work schedule because he often took their children while Ms. Stevenson was at work.

B. Motive

[6] The appellant and Ms. Stevenson had separated about 13 months before the murder and were going through a divorce. There was evidence that the appellant believed that Ms. Stevenson had cheated on him during their marriage and that he carried a considerable grudge. He had been convicted of threatening Ms. Stevenson in the summer of 2006.

[7] The appellant and Ms. Stevenson had worked through most of the legal matters relating to their divorce and there were no custody disputes. Ms. Stevenson had, however, the day before she was killed, advised the appellant that she had rejected his latest offer to settle the outstanding financial issues. She told him he would be hearing from her lawyer. The outstanding financial issues involve about $30,000. The Crown also led evidence that the appellant was upset Ms. Stevenson had recently begun to live with another man (Mr. Aylesworth) and had stated that he did not want another man raising his children.

[8] The evidence relevant to motive did not, however, point only in one direction. There was evidence that the appellant and Ms. Stevenson were by and large getting along, especially when it came to matters involving their children. The discussion in which Ms. Stevenson told the appellant she had rejected his latest offer was not acrimonious. The appellant was involved in another relationship and appeared to have “moved on”.

C. Opportunity

[9] The appellant left his sister’s home in Mallorytown, a small town near Brockville, at about 5:00 p.m. on the day of the murder. His two young daughters remained with the appellant’s sister at her home. The appellant drove into Brockville to do some Christmas shopping. Video surveillance placed the appellant at various commercial locations between 5:16 p.m. and 6:35 p.m. At 6:35 p.m. he was seen on video surveillance at a McDonald’s restaurant. That restaurant is located about 20 minutes from Ms. Stevenson’s home, the scene of the murder. Ms. Stevenson was murdered between 7:20 and 7:25 p.m.

[10] The appellant arrived back at his sister’s home in Mallorytown at about 8:30 p.m. It takes between 20 and 25 minutes to drive from Ms. Stevenson’s home to the appellant’s sister’s home.

[11] The appellant’s whereabouts between 6:35 p.m. when he was at McDonald’s, and 8:30 p.m. when he arrived back at his sister’s home, are unaccounted for in the evidence. The police questioned the appellant in custody about four hours after the shooting. The appellant insisted he could not recall where he had been at the time of the shooting because of the psychological trauma caused by his arrest at gunpoint in front of his children. In subsequent questioning the next day and a few days later, the appellant was repeatedly asked to account for his whereabouts on the evening of the murder. He eventually identified two stores he had visited in Brockville that evening, but he never did account for his whereabouts between 6:35 p.m. and 8:30 p.m.

D. The appellant’s attempt to purchase a gun

[12] Shawn Sutherland worked in the same factory as the appellant. Sutherland was in the business of selling contraband items such as cigarettes. Sutherland testified that sometime between January and April 2006, many months before the murder, the appellant asked him if he could obtain “an untraceable gun”, which the appellant said he wanted to use for target practice.

[13] Sutherland testified that he made some attempts to find a gun for the appellant, including speaking with a person named Mark Jones in Cornwall. Sutherland did not obtain a gun for the appellant and the appellant never raised the topic with Sutherland after the initial request. The police interviewed Mark Jones, who denied speaking to Sutherland about a gun.

[14] Sutherland was an unsavoury witness with an extensive criminal history including many convictions for offences involving dishonesty. He was also a cocaine addict. The trial judge gave a Vetrovec warning in respect of Sutherland’s evidence.

E. The GSR evidence

[15] The appellant was arrested outside of his sister’s home at about 9:30 p.m., about two hours after the murder. At about 9:52 p.m. the arresting officers wrapped the appellant’s hands in plastic bags to preserve any potential GSR evidence. The appellant was taken to the Brockville police station at about 10:24. His hands were still wrapped in the plastic bags. At 12:35 a.m. on December 24, the plastic bags were removed and the appellant’s hands were daubed for GSR using a kit developed by the Centre for Forensic Sciences (CFS). The appellant was also told to remove his clothing and each item was placed in a paper bag for later testing.

[16] Samples taken from the appellant’s hands, his clothing, certain items seized from the front seat of his vehicle, and some parts of the vehicle itself were sent to the CFS for GSR testing. The experts at the CFS found two GSR particles on the back of the appellant’s left hand, nine GSR particles on the web of his right hand, thirteen GSR particles on the back of his right hand, one GSR particle on the right sleeve of the appellant’s jacket, one GSR particle on the front of his pants and one GSR particle on the back of his pants. No GSR particles were found on any of the other items tested.

[17] Dr. Gerard, the Crown’s expert, testified that for the purposes of the CFS, a GSR particle is defined as a particle containing fused elements of lead, antimony and barium. A particle must contain all three elements before the CFS will classify it as a GSR particle. He also testified that GSR particles are environmentally persistent and do not degrade or break down easily. GSR is not visible to the naked eye.

[18] Dr. Gerard explained that GSR particles are easily transferred by contact or air movement. The presence of GSR particles on any surface, including a person’s hands, does not assist in identifying how the particles came to be deposited on that surface. He indicated that there were three possible explanations for the GSR particles found on the appellant’s hands and clothing. The appellant may have recently discharged a firearm, or he may have been in close proximity when a firearm was discharged, or he may have picked up the GSR particles from another surface. Dr. Gerard could not indicate whether any one of the possibilities was more likely than the others.

[19] The defence cross-examined Dr. Gerard at length trying to establish possible post-arrest sources of GSR transfer. Those sources included the hands of the arresting officers and the equipment worn by the arresting officers, the interior of their police vehicle, the handcuffs placed on the appellant, and the bench where the appellant sat at the police station for some time. While Dr. Gerard disagreed with counsel for the appellant as to the likelihood of transfer, he agreed that transfer from the various sources identified by the defence was a possibility.

F. The appellant’s statements to the police

[20] The GSR evidence is the subject of the main ground of appeal and will be addressed in more detail below.

[21] The Crown led evidence of four statements made by the appellant after his arrest. The first was made at 12:04 a.m. on December 24 to Detective Noonan, after Noonan had told the appellant he was charged with first degree murder, had the right to remain silent and had the right to speak with counsel. The appellant declined to exercise those rights. He denied killing Ms. Stevenson.

[22] Noonan asked the appellant where he had been the evening of December 23. The appellant told Noonan that he could not remember anything except having guns pointed at his head. According to Noonan, the appellant was calm during their conversation.

[23] The appellant gave a second statement to the police at 5:30 a.m. on December 24, a third statement at 6:13 p.m. on December 24, and a fourth statement on January 4, 2007. Those statements were lengthy and videotaped. By consent, the statements went before the jury in the form of written summaries. Counsel agreed that the summaries were accurate.

[24] The appellant’s mood varied widely during the statements. At times he appeared very distraught, unable to control himself and incapable of understanding that Ms. Stevenson was dead. At other times he spoke calmly and at still other times he appeared defiant and very confrontational with the police.

[25] During the interviews, the appellant repeatedly indicated that he could not recall the events of the evening of December 23 because of the traumatic effect of his arrest at gunpoint in front of his children. In the course of the interviews, the appellant told the police that when the investigators confronted him at his sister’s home, he believed that they were his neighbour who had come to kill him because he had reported the neighbour to the police for growing marijuana four years earlier. The appellant stated that by reporting the matter to the police he had cost his neighbour about $430,000. He had lived in fear of the neighbour ever since.

[26] The appellant eventually identified two stores in Brockville that he had visited in the late afternoon and early evening of December 23. He continued to insist that he could not provide further details because of the trauma caused by his arrest. The appellant never did give the police any account for his whereabouts between 6:35 p.m. and 8:30 p.m. on December 23.

[27] Throughout the statements, the appellant denied that he had killed Ms. Stevenson. He insisted that they were getting along and working through the matters related to their divorce. Although the appellant said he could not recall where he had been the evening of December 23, he was adamant that he had not been at Ms. Stevenson’s home or on the street where she lived.

[28] The trial judge concluded that the statements were voluntary. That finding is not challenged on appeal. She also concluded that the appellant was advised of his right to silence and his right to counsel several times and that he knowingly waived those rights when he spoke with the police. Those findings are not challenged on appeal. The use the jury could make of the statements is the subject of the second ground of appeal.

III. The grounds of appeal

A. The admissibility of the GSR evidence

[29] Counsel for the appellant advanced three submissions against the admissibility of the GSR evidence. In the first submission, they argue that the appellant’s rights under s. 9 and s. 8 of the Charter were infringed at the time of his arrest and that the results of the GSR testing should have been excluded under s. 24(2) of the Charter. In the second argument, counsel contend that the GSR test results should have been excluded because their potential prejudicial effect far exceeded their probative value. The third argument is also premised on a prejudicial effect versus probative value analysis, but focuses on the particles discovered on the appellant’s hands and pants that contained only one or two of the three elements needed to identify the particle as GSR.

[30] The first two arguments outlined above would, if successful, result in the exclusion of all the GSR evidence. The third argument, if successful, would lead only to the exclusion of the one or two element particles evidence.

(1) The Charter argument

(i) The evidence

[31] Detective Buell of the Brockville Police arrived at the murder scene shortly after 7:20 p.m. on December 23. He spoke to Mr. Aylesworth, Ms. Stevenson’s boyfriend. Mr. Aylesworth had been inside the house when he heard the shot. He ran outside to find Ms. Stevenson lying in her van mortally wounded.

[32] Detective Buell questioned Mr. Aylesworth, who he considered to be a suspect. Mr. Aylesworth told him that Ms. Stevenson was separated from the appellant and that there were ongoing disputes in divorce-related matters. In the course of the questioning Detective Buell asked Mr. Aylesworth who he thought could be responsible for the murder. Mr. Aylesworth replied that the appellant “was a possibility”. Mr. Aylesworth also told Detective Buell that Mr. and Mrs. Stevenson had two young girls and that he believed that they were with the appellant.

[33] Detective Buell decided that he should find the appellant. He considered the appellant a suspect and he was concerned about the safety of the children. Detective Buell testified that he did not have grounds to arrest the appellant based on his conversation with Mr. Aylesworth.

[34] Mr. Aylesworth told Detective Buell that the appellant lived in Mallorytown. As Detective Buell was receiving additional information from Mr. Aylesworth, he conveyed that information to the Brockville police dispatcher. The Brockville police dispatcher in turn spoke to the OPP dispatcher who was responsible for notifying the OPP who policed the Mallorytown area. The transcripts of the conversations between the police and the various dispatchers were filed on consent.

[35] Shortly before 8:00 p.m. on December 23, the Brockville police dispatcher told the OPP dispatcher that the appellant had shot his wife in the head. Nothing known to the Brockville police at that time supported the assertion that the appellant had shot his wife in the head. The trial judge described this misinformation as a product of “a clear communication breakdown” that occurred in the course of a rapidly developing situation involving police personnel who were not accustomed to dealing with a situation like that faced by the Brockville police on the evening of December 23.

[36] At about 8:00 p.m. the OPP dispatcher told OPP officers in the Mallorytown area that the appellant had shot his wife in the head. From that time forward, the OPP searching for the appellant believed that he had been positively identified by the Brockville police as Ms. Stevenson’s killer. They also believed that the appellant was probably armed.

[37] The OPP officers eventually received a description of the appellant’s car and three addresses in Mallorytown where he might be found. Based on the information received, the OPP officers believed that the appellant had his two children with him. Sergeant King, the senior OPP officer involved in the search for and eventual arrest of the appellant, testified that he was satisfied that he had reasonable grounds to arrest the appellant shortly after 8:00 p.m. when the OPP dispatcher conveyed to Sergeant King the information received from the Brockville police dispatcher.

[38] At about 9:20 p.m., Sergeant King and Constable Sinclair arrived at the residence of the appellant’s sister. The officers saw what appeared to be the appellant’s Honda parked in the driveway. They went to a neighbour’s to call for help.

[39] At about 9:30 p.m. King and Sinclair saw a man they believed to be the appellant leave his sister’s home with two children and walk toward the Honda. The man was in fact the appellant. The officers decided that they had to arrest the appellant immediately, before he could drive away with his children. The officers approached the vehicle on foot under the cover of darkness hoping to surprise the appellant. Each was armed with a rifle. The appellant was ordered to the ground at gunpoint, handcuffed and searched while on the ground. The children were taken back into the residence. The appellant appeared surprised and very upset. The children were terrified.

[40] At 9:42 p.m. Constable Sinclair advised the appellant that he was “under arrest for homicide” and that he had a right to counsel. Constable Sinclair used the word “homicide” because he was not certain that the victim was deceased or exactly what the charge would be. The appellant seemed confused. Constable Sinclair repeated the appellant’s rights and went so far as to tell the appellant that it would be wise for him to speak to a lawyer given the seriousness of the charge and the circumstances. The appellant declined to speak to counsel, saying “I haven’t done anything wrong, I don’t need a lawyer”. Constable Sinclair told him that he could speak to a lawyer at any time if he changed his mind. The appellant indicated that he understood. He repeatedly expressed concern about his children.

[41] The appellant was pulled to his feet by the officers and remained handcuffed either in or beside the police cruiser awaiting the arrival of the Brockville police. At 9:52 p.m., the police wrapped the appellant’s hands in plastic bags obtained from a neighbour. The bags were placed over the appellant’s hands in anticipation of testing his hands for GSR.

[42] Detective Noonan of the Brockville police, one of the lead investigators, arrived at the sister’s home at 10:08 p.m. The appellant was sitting handcuffed in the back of the OPP cruiser. Detective Noonan went directly into the residence and spoke to the appellant’s mother and sisters. They advised him that the appellant had left his daughters at the residence at about 4:40 p.m. and gone into Brockville to do some Christmas shopping. He had returned about 8:20 p.m.

[43] At 10:24 p.m., Detective Noonan asked the OPP to transport the appellant to the Brockville police station for booking. Noonan believed that he had reasonable and probable grounds to “continue” the appellant’s arrest.

[44] Detective Noonan’s reasonable and probable grounds to arrest the appellant as of 10:24 consisted of the following:

• The circumstances of the shooting suggested to him a “targeted killing”.
• The appellant and the victim were going through a somewhat contentious divorce.
• The appellant was on probation for threatening the victim.
• The victim’s boyfriend had identified the appellant as a “possibility” when asked if he could think of anyone who might want to kill the victim.
• The appellant had the opportunity to commit the offence as, according to his mother and sisters, he was in Brockville at the relevant time.
• A witness had seen a dark-coloured Honda Civic leaving the area of the shooting. The appellant drove a red Honda. The same witness reported the driver as “possibly” having blond hair. The appellant had strawberry-blond hair.
• About a year earlier the police found marijuana plants growing on the appellant’s farm. The plants were removed, and the appellant was not charged. Detective Noonan, who had experience in drug investigations, testified that in his experience, marijuana growers sometimes used firearms for protection.[^1]

[45] The appellant arrived at the Brockville police station at 10:43 p.m. At 12:04 a.m. on December 24, Detective Noonan told the appellant he was under arrest for first degree murder and advised him of his right to remain silent and his right to counsel. The appellant replied “are you telling me she’s dead”. Detective Noonan confirmed that Ms. Stevenson was dead. The appellant was calm. He indicated that he understood his rights and did not wish to contact counsel.

[46] At 12:35 a.m. samples were taken for GSR testing from the appellant’s hands. His clothing and other assorted articles were seized and packaged for testing. The samples and the seized material were eventually tested for GSR at the CFS. The test results were adduced in evidence by the Crown and are summarized above (para. 16).

(ii) The arguments

[47] Counsel for the appellant submit that the appellant’s arrest, which was based on the misinformation provided to the OPP by the Brockville police dispatcher was unlawful and resulted in an arbitrary detention contrary to s. 9 of the Charter. Counsel further argue that the steps taken by the OPP officers incidental to the unlawful arrest, including the bagging of the appellant’s hands in anticipation of GSR testing, violated s. 8 of the Charter. Finally counsel contend that the connection between these Charter violations and the eventual obtaining of the GSR test results is sufficient to engage s. 24(2) of the Charter and that those results should have been excluded from evidence under s. 24(2).

[48] The Crown, without expressly conceding the unlawfulness of the arrest, argues that if the arrest was unlawful, it was not arbitrary in the circumstances. The Crown contends that the police had grounds to detain the appellant for investigative purposes at the time of the arrest, and had grounds to arrest the appellant within an hour of his initial detention. The Crown refers to any breach of s. 9 of the Charter as “technical in nature” and argues that the search that eventually produced the material sent to the CFS for testing occurred at a time when the police had ample grounds to satisfy the criteria for a lawful arrest. Lastly, Crown counsel submits that on the three-pronged test developed in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the results of the GSR testing should not be excluded even if the police violated the appellant’s rights under s. 9 and s. 8 of the Charter.

[49] The trial judge held that the arrest, based on the misinformation provided to the OPP by the Brockville dispatcher, was unlawful but not arbitrary because the OPP had acted in good faith in relying on the misinformation. The trial judge further found that the police conduct that eventually produced the samples and other materials sent to the CFS for testing occurred after the police had reasonable grounds to arrest the appellant and was a lawful incident of that arrest. There was therefore no s. 8 violation that could potentially affect the admissibility of the results.

(iii) Was the appellant arbitrarily detained?

[50] An arrest without warrant is lawful if the police have reasonable grounds to believe that the person arrested has committed an indictable offence: Criminal Code, s. 495(1). The police must believe that reasonable grounds exist (the subjective requirement) and that belief must be based on information that would lead a reasonable person in the position of the police to conclude that reasonable grounds existed for the arrest (the objective requirement): R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at pp. 250-1.

[51] The OPP officers arrested the appellant based on the information provided by the Brockville police dispatcher. They were justified in doing so. However, the OPP officers were assisting the Brockville police who were investigating the murder. The OPP officers involved in the appellant’s arrest did not make an independent assessment of the information provided to them by the Brockville dispatcher. In circumstances where one officer, or one police force, acts on the direction of another, the question of whether reasonable grounds for an arrest exist is answered by reference to the information available to the officer or police force giving the direction. Here, the adequacy of the grounds for the arrest of the appellant must be assessed by reference to the information available to the Brockville police: see R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 at pp. 1166-67.

[52] At the time of the arrest, the Brockville police did not have reasonable grounds to arrest the appellant. Sergeant Buell testified that he regarded the appellant as a suspect after he spoke to Mr. Aylesworth, but did not believe that he had grounds to arrest him.

[53] The first indication that a Brockville police investigator had reasonable grounds to arrest the appellant comes from the testimony of Detective Noonan. He testified that as of 10:24 p.m., after he had spoken to the appellant’s family, he had reasonable grounds to arrest the appellant. Without accepting that all of the factors referred to by Detective Noonan could support reasonable grounds for an arrest, I am satisfied that in the totality of the circumstances, he did have reasonable grounds. Although counsel for the appellant argued in their factum that reasonable grounds for arrest did not exist even at 10:24 p.m., they did not press that issue in oral argument. However, by the time Detective Noonan had those reasonable grounds, the appellant had been under arrest for almost an hour.

[54] At trial, the Crown conceded that the appellant’s arrest was unlawful but argued that it was not arbitrary as the OPP officers had acted in good faith and reasonably, based on the information provided to them. In accepting that argument, the trial judge did not have the benefit of the Supreme Court of Canada’s reasons in Grant. In Grant, the court, applying the approach developed in the context of a reasonableness assessment under s. 8 of the Charter to s. 9, held, at para. 54:

Section 9 serves to protect individual liberty against unlawful state interference. A lawful detention is not arbitrary within the meaning of s. 9 (Mann, at para. 20), unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9. [Emphasis added.]

[55] The arrest of the appellant was unlawful in that it was not authorized by s. 495(1) of the Criminal Code or by any other law. The Crown argues, however, that even if the arrest was unlawful, it was not arbitrary because the OPP, on the true state of affairs known to the Brockville police, could have detained the appellant both for investigative purposes and to ensure the safety of the children. The Crown submits that because the police had authority to detain, the detention pursuant to the arrest was not arbitrary.

[56] Whatever lawful police power, apart from the arrest power, the police may have had to detain the appellant, they did not purport to exercise any such power. The police arrested the appellant. The police conduct at and after the gunpoint encounter with the appellant, is only consistent with a full arrest. The arbitrariness of the appellant’s detention must be determined having regard to the police power actually exercised and not by reference to some other police power which may have been, but was not, exercised: R. v. Whitaker, 2008 BCCA 174, [2008] B.C.J. No. 725 at para. 65, leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 296; R. v. Dhillon, 2012 BCCA 254, 291 C.C.C. (3d) 93, at para. 40.

[57] Like the trial judge, I think the arrest was unlawful. It follows from Grant that the detention was arbitrary: see also R. v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167 at para. 3. The bona fides of the OPP officers who made the arrest and the existence of grounds to detain the appellant for investigative purposes and to ensure the safety of the children do not alter the arbitrariness of the detention, although they are relevant to whether evidence obtained as a result of the arbitrary detention should be excluded under s. 24(2) of the Charter.

(iv) Was there a s. 8 breach?

[58] The OPP officers who arrested the appellant searched his pockets immediately upon arresting him. About 20 minutes later they placed plastic bags over his hands to preserve any potential GSR evidence. In the circumstances presented in this case, the search of the appellant’s pockets and the bagging of his hands for GSR testing would have been justifiable as incidental to the appellant’s arrest, if that arrest had been lawful: R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at para. 27; R. v. Backhouse (2005), 2005 CanLII 4937 (ON CA), 194 C.C.C. (3d) 1 (Ont. C.A.), at paras. 90, 139-45. As the arrest by the OPP was unlawful however, it cannot provide justification for any search of the appellant.

[59] Whether the police could have searched the appellant’s pockets for weapons and bagged his hands, to preserve evidence, had they detained the appellant for investigative purposes, does not arise on the facts of this case. As indicated above, the police arrested the appellant. The arrest cannot be converted to an investigative detention for the purposes of determining the constitutionality of the police conduct.[^2]

[60] Crown counsel submitted that the trial judge correctly held that the bagging of the appellant’s hands was not a search or seizure and did not therefore implicate s. 8 of the Charter. On the trial judge’s analysis, the search or seizure occurred when the samples were taken and the various items of clothing were seized from the appellant at about 12:35 a.m. on December 24. Those events occurred after the police had reasonable grounds to arrest the appellant and could be justified as an incident of that arrest.

[61] It is somewhat artificial to describe the bagging of the appellant’s hands as a search or seizure. The bagging is more accurately characterized as a step taken in preparation of an anticipated search or seizure. In the usual case, when the anticipated search or seizure follows upon the preparatory steps without any intervening compliance with the Charter, the entirety of the search-related conduct can be considered part of the s. 8 violation. In this case, however, a lawful arrest intervened between the step preparatory to the search, the bagging of the appellant’s hands, and the actual search, the taking of the samples and seizure of the clothing. In this unusual circumstance, it therefore becomes necessary to draw a distinction between steps in preparation of a search and the search. I think the appellant can be afforded the full protection of the Charter without stretching the normal meaning of the words search or seizure to include the bagging of the appellant’s hands.

[62] The appellant was arbitrarily detained. The police could not rely on that detention to justify any further restraint on or restriction of the appellant. The bagging of his hands to preserve potential evidence can be seen as an additional restricting feature of the arbitrary detention that further compromised the appellant’s liberty and security interests protected by the right against arbitrary detention. Arguably the bagging could also be seen as a distinct violation of the appellant’s s. 7 rights: see Stillman, at para. 51; R. v. Beare(1987), 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387; R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13 at para. 60. Either way, it can be factored into the s. 24(2) calculus.

(v) Should the GSR evidence have been excluded under s. 24(2) of the Charter?

[63] The appellant seeks the exclusion of the results of the GSR test done on his clothing and hands. The GSR results are sufficiently temporally connected to the arbitrary detention to make the results of the test “evidence that was obtained in a manner that infringed” the appellant’s Charter rights even though he was lawfully arrested by the time the samples were taken and the clothing seized: see R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980 at pp. 1005-6; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 at pp. 208-9; R. v. Mian, 2014 SCC 54 at para. 83.

[64] As set out in Grant, at para. 71, in deciding whether evidence tainted by a Charter infringement should be excluded, the court will consider:

• The seriousness of the Charter-infringing state conduct;
• The impact of the breach on the Charter-protected interest of the accused;
• Society’s interest in the adjudication of the case on its merits.

[65] The first factor, the seriousness of the Charter-infringing state conduct, does not favour exclusion of the GSR test results. The OPP officers who arrested the appellant acted reasonably in doing so. They had no reason to doubt the accuracy of the information provided by the Brockville police dispatcher. Based on that information, the OPP officers had genuine safety concerns both for themselves and the appellant’s children and cannot be criticized for the manner in which they made the arrest. Once the arrest was made, the arresting officers demonstrated a genuine respect for the appellant’s constitutional rights. Constable Sinclair went beyond simply telling the appellant about his rights to counsel. He all but urged the appellant to speak with a lawyer.

[66] The unlawful arrest and hence the arbitrary detention flowed from the misinformation provided by the Brockville police dispatcher. That error, made by a police employee only peripherally involved in the investigation, does not demonstrate “ignorance of Charter standards” or “negligence or wilful blindness”: see Grant, at para. 75. On the trial judge’s finding, which I accept, the error was an unfortunate but understandable mistake made by the dispatcher in the course of a rapidly developing and somewhat chaotic situation.

[67] Lastly, the bagging of the appellant’s hands by the OPP officers after his arrest does not demonstrate any disregard for the appellant’s Charter rights. The arresting officers honestly and reasonably believed they had grounds to arrest the appellant. They understood that he had shot his wife about two hours earlier. It was reasonable for the police to take steps to preserve potential GSR evidence. The bagging of the appellant’s hands, while an interference with his security of the person, was not done in a way that could cause the appellant any undue discomfort or embarrassment.

[68] Looking at the entirety of the police conduct surrounding the arrest and bagging of the appellant’s hands, I find nothing that would compel a court to disassociate itself from the conduct of the police by excluding the evidentiary fruit of that conduct: Grant, at para. 72.

[69] Turning to the second group of factors, the impact of the breach on the appellant’s Charter-protected rights, the arbitrary detention had a serious and immediate impact on the appellant’s liberty and his right to security of the person. The manner in which the police made the arrest and the presence of the appellant’s two small children exacerbated the negative impact of the arrest on the appellant’s liberty and security interests. I would not characterize the detention as “technical” in any sense. Nor was it momentary. The appellant was detained for some 45 minutes before the Brockville police had reasonable grounds to arrest him.

[70] However, the negative impact on the appellant’s rights is mitigated by the existence of legitimate grounds to detain the appellant at the time he was arrested. Had the Brockville dispatcher conveyed the correct information to the OPP, the OPP officers would still have searched for and presumably found the appellant at the same time and place as they did. Based on the true state of affairs, the OPP officers would have been entitled to detain the appellant at least for the purposes of ensuring the safety of the two children and briefly questioning him. I am also satisfied that, based on the true state of affairs, the OPP officers were entitled to approach the appellant’s vehicle with guns drawn. Any further steps the police might have been entitled to take as a part of an investigative detention would have depended on what developed after the initial detention.

[71] For the sake of assessing the impact of the s. 9 violation on the appellant’s protected rights, I will assume that the OPP officers, as part of an investigative detention, would not have been justified in physically forcing the appellant to the ground, handcuffing him, placing his hands in plastic bags, and holding him for some 45 minutes until the Brockville police decided they had reasonable grounds to arrest him. On those assumptions, the arbitrary detention had a significant negative impact on the appellant’s liberty and security interests beyond the impact that would have flowed from an investigative detention.

[72] The third factor, the public interest in an adjudication on the merits favours admission. Whatever may be said about the probative value of the GSR test results, those results were reliable, and the arbitrary detention did not have any possible impact on that reliability. The exclusion of undeniably reliable evidence must have a negative impact on the repute of the administration of justice: Grant, at para. 81.

[73] Despite the significant intrusion on the appellant’s liberty and security, the appellant has not met the onus of demonstrating that the GSR test results should be excluded from evidence under s. 24(2). The trial judge properly admitted the evidence.

(2) Should the GSR test results have been excluded on a probative value/prejudicial effect analysis?

[74] Evidence that is otherwise admissible may be excluded if the trial judge is satisfied that its potential prejudicial effect outweighs its potential probative value: D. Watt, Watt’s Manual of Criminal Evidence (Toronto: Carswell, 2014), at p. 43. The discretion to exclude otherwise admissible evidence finds its application to expert opinion evidence as part of the cost/benefit analysis performed by trial judges in deciding the admissibility of expert evidence: R. v. Abbey, 2009 ONCA 624, 246 C.C.C. (3d) 301, at paras. 75-80, 87, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 125.

[75] Counsel for the appellant do not challenge either the manner in which the GSR testing was done or the results of the testing. They submit, however, that the results are unhelpful because Dr. Gerard could not offer any opinion as to how the GSR came to be deposited on the appellant’s hands and pants and therefore could not connect the GSR test results to the appellant’s alleged use of a firearm to kill Ms. Stevenson.

[76] Counsel go on to argue that not only could the GSR evidence not advance the Crown’s case, it presented a real risk of misuse by the jury. Counsel submit that the scientific aura surrounding the examination of the samples created a real risk that the jury would move beyond the actual, very limited probative value of that evidence and give it a prominence and importance it did not deserve.

[77] I cannot accept counsel’s submissions. The GSR evidence was one brick in the Crown’s evidentiary wall. Alone, it could not connect the appellant to the discharge of a firearm. Dr. Gerard readily acknowledged the limits of the evidence. However the jury could, after considering the evidence of the possibility that the GSR was transferred from another surface and the body of evidence implicating the appellant as the killer, conclude that the GSR on the appellant’s hands and clothing was explained by his recent discharge of a firearm.

[78] The trial judge carefully explained the nature and limits of the GSR evidence to the jury. She made it clear that the expert could offer no opinion as to how the GSR came to be on the appellant’s hands and clothing. She told the jury:

Dr. Gerard did not hear all the evidence in this case. You have heard all the evidence in this case. When you consider all of the evidence, you may, or you may not be able to draw rational inferences as to the source of the gunshot residue found on Andrew Stevenson’s hands and clothing. Dr. Gerard has provided you with three possible rational inferences to explain how this gunshot residue came to be deposited. Those possibilities may, or they may not, serve to guide you in deciding this case.

[79] The trial judge also outlined to the jury the relevance of the GSR evidence to the Crown’s theory and to the position of the defence. She did so fully and fairly.

[80] I also cannot agree that this is the kind of scientific expert opinion evidence that could be given exaggerated importance by the jury. While the technology underlying the testing is no doubt complicated and technical, the expert’s opinion was neither. This was not a case in which the jury was asked to accept an expert’s interpretation of complicated data or phenomena that the jury could not observe or comprehend without an expert’s help. The presence of the GSR was never really contested. How it got on the appellant’s hands and clothing was beyond the expertise of Dr. Gerard and he made it clear that he offered no opinion on that subject. In my view, the risk of misuse of this evidence was not significant.

[81] In oral argument counsel for the appellant referred to R. v. Gjikokaj, [2014] E.W.C.A. Crim. 386, a recent decision of the England and Wales Court of Appeal (Criminal Division). In that case the Crown expert testified that GSR was found in the appellant’s car. He went on, as in this case, to indicate that there were three possible explanations for the presence of the GSR and that he could not offer any opinion as to which was more likely.

[82] The Court of Appeal held that the expert’s evidence was admissible even though he could offer no opinion as to the most likely source of the GSR. That opinion taken with the other circumstantial evidence, could lead the jury to a conclusion on the source of the GSR. The court said at para. 43:

The judge was not inviting them [the jury] to reach an evaluative opinion where the forensic scientist could not, but inviting them to consider this piece of primary forensic evidence as part of the circumstantial case. [^3]

[83] This trial judge was doing exactly the same thing with the expert evidence in this case. She presented it as part of the circumstantial picture. In that context it could properly have assisted the jury in determining whether the Crown had proved that the appellant was the killer. The prejudice presented by the potential misuse of the evidence was insignificant. The trial judge did not err in admitting the evidence.

(3) The admissibility of the one or two element particle evidence

[84] Dr. Gerard explained that gunshot residue is derived from the primer cup of a piece of ammunition. The primer cup contains lead, barium, nitrate and antimony sulphide. When the gun is fired, the primer explodes and vaporizes. Some of the lead, barium and antimony particles will escape the firearm through the muzzle or any breach in the loading mechanism. When those particles hit the cold air, they condense into small microscopic droplets.

[85] Dr. Gerard explained that when a gun is fired, the particles produced by the condensation of the vaporized discharge include particles that contain only lead, only barium, only antimony, some combination of the two, or all three. Dr. Gerard further testified that there are many possible sources of one or two element particles containing some combination of lead, barium and antimony. This was particularly true with respect to particles containing lead. Because of the other potential sources of one and two element particles, the CFS, like most in the forensic science community, treats only three particle elements as GSR.

[86] Over the objection of the defence, the Crown was allowed to lead evidence from Dr. Gerard identifying the number of one and two element particles on the appellant’s hands, his clothing and the other articles seized at the time of the appellant’s arrest. The number of particles containing one or two of the three elements significantly exceeded the number of GSR particles found. For example, while 22 GSR particles were found on the appellant’s right hand, some 350 particles containing one or two of the three elements were found on his right hand.

[87] Counsel for the appellant submitted that the evidence of the one and two element particles should not have gone before the jury. They argued that regardless of the trial judge’s instructions, the jury would take evidence of the high number of one and two particle element particles found as evidence that they were deposited by the discharge of a firearm.

[88] The trial judge acted within her discretion in allowing the Crown to lead the evidence of the one and two element particles. The expert testified that one, two and three element particles are deposited after a gun is fired. Without evidence of the existence of the one and two element particles, the jury may have wrongly concluded that there were no one or two particle elements deposited on the appellant’s hands and clothing and factored that erroneous conclusion into its assessment of the GSR evidence. The trial judge clearly and accurately described the effect of the evidence pertaining to the one and two element particles and the significance of the expert’s evidence that only three element particles constituted GSR.

B. The trial judge’s instructions on the appellant’s statements to the police

[89] At trial, the Crown argued that the appellant lied to the police when he repeatedly insisted that he could not remember where he was at the time of the murder. The Crown argued that having regard to the timing of the statements and the manner in which the appellant made those statements, the jury could infer that the appellant had fabricated his claim that he could not recall where he was. The Crown asked the trial judge to instruct the jury on fabrication as circumstantial evidence of guilt.

[90] The defence argued that there was no basis upon which a jury could infer that the appellant’s statements to the police were fabricated. The defence agreed with the trial judge’s suggestion that a general instruction on post-offence conduct would be appropriate. The trial judge eventually gave that instruction.

[91] On appeal, counsel for the appellant contend that the statements had no potential value as circumstantial evidence of guilt and that in any event, the instructions on the potential use of the statements were inadequate. These submissions lead back along the well-travelled but difficult path between the mere rejection of exculpatory statements made by an accused as untrue and the use of fabricated statements as circumstantial evidence of guilt: see R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.).

[92] The identity of the killer was the only issue at trial. An accused’s conduct after the homicide, including lies to the police, can have circumstantial value on the issue of identity: see, e.g., R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 263. The evidentiary value, if any, of evidence of lies told to the police by an accused will depend on the nature of that evidence, the other evidence adduced in the case, the inferences reasonably available from that evidence as a matter of common sense and human experience, and the relevance of those inferences to the live issues at trial: see R. v. Rodgerson, 2014 ONCA 366, 309 C.C.C. (3d) 535, at paras. 50-54; R. v. Jones (2006), 2006 CanLII 28086 (ON CA), 81 O.R. (3d) 481 (C.A.), at paras. 5-6.

[93] In my view, if the jury decided that the appellant was lying to the police and pretending to be unable to recall where he was at the time of his wife’s murder, the jury could use that finding to support the inference that the appellant had killed his wife. The appellant first professed an inability to recall where he was when his wife was killed only about four and a half hours after the murder. If the jury rejected, as it could have, his explanation for his inability to recall, and concluded that he was lying to the police, the timing and the subject matter of the lie made an inference of fabrication to avoid culpability a legitimate possibility: see Polimac, at para. 105.

[94] Nor in my view does the right to silence play any part in the evidentiary analysis. Inferences cannot be drawn from an accused’s exercise of his or her right to remain silent: R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519. The appellant did not, however, exercise his right to silence. He chose, after a full and proper caution, to waive that right and to answer the questions posed by the police. He made that choice several times. If he chose to lie to the police, using those lies for whatever evidentiary value they might properly have does no disservice to an accused’s right to silence.

[95] I turn now to the instructions. The trial judge dealt with the potential use of the appellant’s statements at some length. She explained more than once that the appellant was under no obligation to speak to the police. She carefully instructed the jury on the manner in which it should assess and use the exculpatory portions of the statement. No objection is taken to that part of the instruction.

[96] The trial judge described the potential use of the statements as evidence for the Crown in her “post-incident conduct” instructions. She explained that the appellant’s post-incident conduct may or may not provide evidence that he had committed the murder. In other words she treated the appellant’s “post-incident” conduct as circumstantial evidence.

[97] After an instruction on the potential use of the appellant’s demeanour when the statements were taken as post-incident conduct, the trial judge turned to the contents of the statements. Without expressly referencing the appellant’s professed inability to recall where he was at the time of the murder, the trial judge reviewed the various exculpatory explanations offered by him for his inability to recall where he had been. The trial judge then told the jury:

You must not use this evidence about what Andrew Stevenson did or said in these statements in deciding or helping you decide that Andrew Stevenson committed this offence unless you reject any other rational explanation for it.

If you do not or cannot find that Andrew Stevenson did or said those things because he was conscious of having done what is alleged against him, you must not use this evidence in deciding or in helping you decide that Andrew Stevenson committed the offence charged.

On the other hand, if you find that what Andrew Stevenson did or said in these statements was because he was conscious of having done what is alleged against him, you may consider this evidence, together with all the other evidence, in reaching your verdict.

[98] The trial judge’s instruction was given a year before this court’s reasons in R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, at paras. 140-146, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 499. In Hall the court criticized language identical to that used in the last two paragraphs quoted above. As explained in Hall at para. 145, a trial judge, rather than using phrases like “consciousness of guilt” should explain to the jury how the specific post-incident conduct in the particular case can be used to draw inferences for or against a fact in issue. However as in Hall, I do not think the language resulted in reversible error.

[99] I think it would have been better had the trial judge expressly dealt with the inference available should the jury conclude that the appellant had feigned his memory loss when speaking to the police. By addressing the actual evidence and the inferences available from it, the trial judge could have avoided using the dangerous phrase “consciousness of guilt” and the risk of the circular reasoning identified in Hall.

[100] I think an appropriate instruction would proceed along the following lines:

• The trial judge would begin by telling the jury that it must first determine whether the appellant had deliberately lied to the police when he said he could not recall where he was at the time of his wife’s murder. If the jury was not satisfied that the appellant had deliberately lied, the evidence could have no value for the Crown.
• The trial judge would next instruct the jury that if it was satisfied that the appellant was feigning memory loss, the jury should go on and consider what inference, if any, it should draw from the feigned memory loss. The jury would be told that the inference that the appellant had lied in an attempt to hide his involvement in his wife’s death was one, but only one of the inferences that might be drawn.

[101] The trial judge would remind the jury that in determining what inference if any should be drawn from the appellant’s feigned memory loss, it must consider the timing of the statements, the circumstances in which the statements were made, and any other evidence which might inform the rationale for the appellant’s feigned memory loss.

[102] The instruction outlined above would focus the jury’s attention on the primary evidentiary question – was the appellant pretending to be unable to remember where he was when his wife was killed – and the inference that could, but not necessarily should, be drawn from the jury’s finding on the primary evidentiary question.

[103] The approach I advocate would not have helped the appellant. It was certainly open to the jury to find that the appellant was pretending to be unable to recall where he was at the time of the murder. This finding was particularly open in respect of the first statement made shortly after the murder and at a time when the appellant was apparently calm and very much in control of himself. If the jury did conclude that the appellant was feigning memory loss, an express instruction that the finding of feigned memory loss could be added to the other inculpatory evidence relevant to identity would have bolstered the Crown’s case. The more generic and somewhat oblique language used by the trial judge diminished the potential force of the evidence if the jury found that the appellant was indeed feigning memory loss when questioned by the police. The instruction did not prejudice the appellant.

IV. Conclusion

[104] I would dismiss the appeal.

Released: November 26, 2014 (“D.D.”)

“Doherty J.A.”

“I agree. Paul Rouleau J.A.”

“I agree. Gloria Epstein J.A.”

[^1]: The reasons should not be taken as accepting that this “fact” had any relevance to the existence of reasonable grounds. [^2]: The power of the police to search a person detained for investigative purposes would appear to be limited to situations in which the police have a reasonably based safety concern that renders search of the individual necessary: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 41; R. v. Greaves, 2004 BCCA 484, 189 C.C.C. (3d) 305, at para. 60-63, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 522. The power of the police to take steps short of a search to preserve evidence when those steps interfere with the security interests of the detained person, does not appear to have been addressed in the case law save in the comments of Deschamps J. in dissent in Mann at paras. 67-68. [^3]: The court at para. 42, in explaining the relation of the expert evidence to the other circumstantial evidence, appears to apply the ultimate burden to individual pieces of evidence. That is not the law in Canada: see R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345.