Her Majesty the Queen v. Hall
[Indexed as: R. v. Hall]
Ontario Reports
Court of Appeal for Ontario,
Doherty, Tulloch and Huscroft JJ.A.
January 8, 2016
128 O.R. (3d) 641 | 2016 ONCA 13
Case Summary
Criminal law — Evidence — Hearsay — Accused charged with murder and later tried for counselling to commit murder — During murder trial, judge ruling that accused's common law spouse not compellable witness nor could her statements to police be admitted as their admission would circumvent ruling against compelling spouse to testify — At counselling to commit murder trial Crown not attempting to call accused's common law spouse as witness on assumption that she was not compellable — Crown seeking to adduce spouse's out-of-court statement to police under principled exception to hearsay rule — Crown relying solely on spouse's unavailability as a compelled witness as proof of threshold requirement of necessity — Trial judge excluding statement on basis that its admission would undermine rationale of spousal incompetency rule — Crown appealing against acquittal — Court of Appeal subsequently ruling in another case that common law spouses are compellable witnesses for Crown — Trial judge's error in excluding statement on basis of rationale for spousal incompetency rule having no material bearing on accused's acquittal — As spouse was compellable witness and no other evidence adduced that admission of her out-of-court statement was necessary to get her evidence before the court, Crown being unable to prove that necessity prerequisite for admission of hearsay evidence was met — Crown appeal dismissed.
Criminal law — Interception of private communications — Information to obtain ("ITO") wiretap authorizations based largely on information provided by informant — Accused permitting to cross-examine affiant of ITO and resulting in evidence that affiant of ITOs failing to disclose facts that were highly relevant to informant's credibility and reliability — Trial judge not erring in assessing continued viability of authorizations by disregarding any information that came from informant — Trial judge finding that remainder of ITOs did not satisfy statutory prerequisites for granting of authorizations and that interceptions therefore violated s. 8 of Charter — Trial judge not erring in excluding intercepted communications under s. 24(2) of Charter based in part on reasonable conclusion that omissions in ITO were either grossly negligent or intentional and amounting to serious misconduct — Canadian Charter of Rights and Freedoms, ss. 8, 24(2).
The accused was charged with murdering one man and was later tried for two counts of attempting to murder witnesses against him in other outstanding charges. During the murder trial, the trial judge ruled that the accused's common law spouse was not a compellable witness because to do otherwise would violate the rule set out by the Supreme Court of Canada in Regina v. Couture. He also precluded the admission on the spouse's statements to the police on the basis that to admit them would be to circumvent the purpose of the rule against prohibiting the Crown from compelling the evidence of the accused. At the trial on the attempted murder charges, the Crown did not attempt to call the accused's common law spouse as a witness on the assumption that she was not [page642] compellable, but sought to adduce her statement to the police under the principled exception to the hearsay rule. Relying on R. v. Couture, the trial judge excluded the statement on the basis that its admission would undermine the rationale of the spousal incompetency rule. The Crown also sought to adduce intercepted communications between the accused and U, a person of unsavoury character who had told the police that the accused tried to hire him to commit two murders. The police had obtained authorizations to intercept the communications largely on the basis of the information provided by U. Defence counsel cross-examined the affiant of the informations to obtain the authorizations, and demonstrated that the affiant had failed to disclose several significant facts material to a proper assessment of U's credibility and reliability. The trial judge found that the affiant failed to make full and frank disclosure and intentionally or negligently portrayed U in a far more favourable light than he should have. He concluded that the information provided on cross-examination effectively destroyed U's credibility and the reliability of any information sourced from him. He "excised" that information from the ITOs and found that the remainder of the information did not satisfy the statutory prerequisites for the granting of the authorizations. He set aside the authorizations, found that the interceptions were unlawful and violated the accused's rights under s. 8 of the Canadian Charter of Rights and Freedoms, and excluded the intercepted communications under s. 24(2) of the Charter. The accused was acquitted. The Crown appealed.
Held, the appeal should be dismissed.
When the trial judge ruled on the admissibility of the accused's common law spouse's statement, he did not have the benefit of the subsequently released Court of Appeal decision in R. v. Nguyen, holding that common law spouses are compellable witnesses for the Crown in criminal prosecutions. As a result, he erred in excluding the statement on the basis of Couture. However, that error did not have a material bearing on the acquittal, as the trial judge could not possibly have admitted the common law spouse's statement under the principled exception to the hearsay rule. The Crown relied exclusively on her assumed non-compellability to establish the necessity prerequisite to the admission of her out-of-court statement. Absent any other evidentiary basis for a finding of necessity, the trial judge could not have admitted the common law spouse's statement. Consequently, while Nguyen rendered Couture inapplicable, it also effectively rendered her statement inadmissible without first calling her as a witness and establishing the requisite necessity.
The trial judge properly assessed the continued viability of the authorizations by disregarding any information that came from U. He did not err in setting aside the wiretap authorizations. Nor did he err in excluding the intercepted communications under s. 24(2) of the Charter. He did not overstate the seriousness of the police misconduct. His characterization of the omissions from the affidavit as "intentional" or "grossly negligent" was reasonable. It was appropriate to defer to the trial judge's determination pursuant to s. 24(2) of the Charter.
Cases referred to
R. v. Couture, [2007] 2 S.C.R. 517, [2007] S.C.J. No. 28, 2007 SCC 28, 280 D.L.R. (4th) 577, 364 N.R. 1, [2007] 8 W.W.R. 579, J.E. 2007-1249, 244 B.C.A.C. 1, 68 B.C.L.R. (4th) 1, 220 C.C.C. (3d) 289, 47 C.R. (6th) 1, EYB 2007-120820, 73 W.C.B. (2d) 549; R. v. Nguyen (2015), 125 O.R. (3d) 321, [2015] O.J. No. 2098, 2015 ONCA 278, 333 O.A.C. 199, 333 C.R.R. (2d) 255, 323 C.C.C. (3d) 240, 20 C.R. (7th) 287, 122 W.C.B. (2d) 432, consd [page643]
Other cases referred to
Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36, 11 D.L.R. (4th) 641, 55 N.R. 241, [1984] 6 W.W.R. 577, J.E. 84-770, 33 Alta. L.R. (2d) 193, 55 A.R. 291, 27 B.L.R. 297, 14 C.C.C. (3d) 97, 2 C.P.R. (3d) 1, 41 C.R. (3d) 97, 9 C.R.R. 355, 84 D.T.C. 6467; Quebec (Attorney General) v. A., [2013] 1 S.C.R. 61, [2013] S.C.J. No. 5, 2013 SCC 5, 2013EXP-288, J.E. 2013-141, EYB 2013-216977, 439 N.R. 1, [2013] W.D.F.L. 746, [2013] W.D.F.L. 814, [2013] W.D.F.L. 776, 21 R.F.L. (7th) 1, 354 D.L.R. (4th) 191; R. v. Adair, [1994] O.J. No. 3265, 24 W.C.B. (2d) 12 (Gen. Div.); R. v. B. (K.G.), 1993 CanLII 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. Commisso, 1983 CanLII 160 (SCC), [1983] 2 S.C.R. 121, [1983] S.C.J. No. 67, 1 D.L.R. (4th) 577, 49 N.R. 26, [1984] 1 W.W.R. 673, 7 C.C.C. (3d) 1, 36 C.R. (3d) 105, 10 W.C.B. 365; R. v. Côté, [2011] 3 S.C.R. 215, [2011] S.C.J. No. 46, 2011 SCC 46, 246 C.R.R. (2d) 213, 421 N.R. 112, 2011EXP-3108, J.E. 2011-1739, EYB 2011-196883, 87 C.R. (6th) 1, 276 C.C.C. (3d) 42, 342 D.L.R. (4th) 77, 97 W.C.B. (2d) 17; R. v. Ebanks (2009), 97 O.R. (3d) 721, [2009] O.J. No. 5168, 2009 ONCA 851, 249 C.C.C. (3d) 29, 256 O.A.C. 222, 72 C.R. (6th) 120, 203 C.R.R. (2d) 170, 86 W.C.B. (2d) 48; R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, 116 N.R. 241, J.E. 90-1684, 43 O.A.C. 1, 36 Q.A.C. 161, 60 C.C.C. (3d) 161, 80 C.R. (3d) 317, 50 C.R.R. 206, 11 W.C.B. (2d) 342; 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. Graveline, [2006] 1 S.C.R. 609, [2006] S.C.J. No. 16, 2006 SCC 16, 266 D.L.R. (4th) 42, 347 N.R. 268, J.E. 2006-916, 207 C.C.C. (3d) 481, 38 C.R. (6th) 42, EYB 2006-104245, 69 W.C.B. (2d) 721; R. v. Hall, [2014] O.J. No. 557, 2014 ONSC 708, 302 C.R.R. (2d) 222, 111 W.C.B. (2d) 685 (S.C.J.); R. v. Hall, 2014 ONSC 434; R. v. Hall (2013), 114 O.R. (3d) 393, [2013] O.J. No. 554, 2013 ONSC 834, 1 C.R. (7th) 384, 30 R.F.L. (7th) 98, 105 W.C.B. (2d) 256 (S.C.J.); R. v. Hall, 2013 ONSC 1152; R. v. Hall, 2012 ONSC 7084; R. v. McRae, [2013] 3 S.C.R. 931, [2013] S.C.J. No. 68, 2013 SCC 68, 451 N.R. 375, 2013EXP-3868, J.E. 2013-2109, 307 C.C.C. (3d) 291, EYB 2013-230228, 6 C.R. (7th) 339, 366 D.L.R. (4th) 337, 110 W.C.B. (2d) 787; R. v. Pires, [2005] 3 S.C.R. 343, [2005] S.C.J. No. 67, 2005 SCC 66, 259 D.L.R. (4th) 441, 341 N.R. 147, [2006] 4 W.W.R. 403, J.E. 2005-2120, 217 B.C.A.C. 65, 49 B.C.L.R. (4th) 33, 201 C.C.C. (3d) 449, 33 C.R. (6th) 241, 136 C.R.R. (2d) 85, 67 W.C.B. (2d) 400; R. v. Riesberry, [2015] S.C.J. No. 103, 2015 SCC 65, 2016EXP-57, J.E. 2016-18; R. v. Sadikov, [2014] O.J. No. 376, 2014 ONCA 72, 314 O.A.C. 357, 300 C.R.R. (2d) 308, 305 C.C.C. (3d) 421, 111 W.C.B. (2d) 371
Statutes referred to
Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4 [as am.], (2) [as am.]
Canadian Charter of Rights and Freedoms, ss. 8, 15, (1), 24(2)
Criminal Code, R.S.C. 1985, c. C-46, ss. 184.2 [as am.], (3), (a), (b), (c), 686(1)(a)(iii)
APPEAL by the Crown from the acquittals entered by G.E. Taylor J. of the Superior Court of Justice in Hamilton, Ontario, sitting without a jury, on March 20, 2014.
Amanda Rubaszek, for appellant.
Dirk Derstine and Stephanie DiGiuseppe, for respondent. [page644]
The judgment of the court was delivered
DOHERTY J.A.: —
I
Overview
[1] The respondent, Jeremy Hall, was charged with two counts of counselling murder. The Crown alleged that Hall attempted to hire Dwayne Utman to kill two people who were Crown witnesses against Hall on various firearm-related charges.
[2] In two pre-trial rulings, the trial judge excluded a statement made to the police by Carol Anne Eaton, the common law spouse of Hall, and certain intercepted communications between Hall and Utman. The trial proceeded with Utman as the main Crown witness. The trial judge acquitted.
[3] The Crown appeals from the acquittals, alleging that the trial judge erred in law by excluding Ms. Eaton's statement and the intercepted communications. For the reasons that follow, I would dismiss the appeal.
II
Background Facts
[4] A brief overview of the evidence adduced at trial will suffice.
[5] In May 2009, the respondent pointed a gun at Tony Yaworski and threatened him. Yaworski's friend, Angelo Salciccioli, witnessed the incident.
[6] Hall was arrested and charged with various offences, including threatening. Hall contacted Yaworski before the preliminary inquiry and tried to persuade him not to testify. Yaworski testified at the preliminary inquiry. Sometime after the preliminary inquiry, Hall threatened Yaworski.
[7] Dwayne Utman had known the respondent since childhood. They had been involved together in criminal activity. Utman was incarcerated in February 2010, and eventually became Hall's cellmate.
[8] According to Utman, Hall told him that he was charged with threatening a person with a .357 magnum handgun and that he would "beat" the charge if the witnesses did not show up at trial. Over time, Utman's conversations with Hall became more serious and more specific. Hall asked Utman if he would help him make sure that the witnesses did not show up for trial. The respondent spoke about killing one of the witnesses and later indicated that both should be killed. He offered Utman [page645] $5,000. Hall and Utman discussed various ways of killing the witnesses.
[9] Utman testified that he never had any intention of killing anyone. According to his evidence, he went to the police shortly after Hall began to discuss murdering the witnesses. Utman became the "eyes and ears" of the police while he was the respondent's cellmate. He reported the substance of his conversations with the respondent to the police. Some of the conversations were intercepted pursuant to a judicial authorization.
[10] Utman continued to work as a police agent after he was released from custody. He spoke to Hall on the phone and on one occasion visited him in jail. The police recorded some of those conversations under the authority of a judicial authorization.
[11] The Crown also led evidence that Hall's common law wife, Carol Anne Eaton, took the police to a storage locker and directed them to two bags containing four operable firearms, two rifles and two handguns. One of the handguns was a .357 magnum.
[12] The respondent called a defence but did not testify.
[13] The Crown's case depended almost entirely on Utman's evidence. Utman was a career criminal, a drug addict, a habitual liar and he had significant mental health issues. He stood to gain financially from assisting the police. There was also evidence that when Utman contacted the police and told them about Hall's statements, Utman believed that Hall had tortured and murdered his sister a few years earlier. Her death had been ruled a suicide. The defence maintained that Utman's belief that Hall was involved in his sister's death gave Utman a powerful motive to falsely implicate Hall.
[14] The trial judge instructed himself that Utman's evidence "must be approached with extreme caution". He reviewed Utman's evidence at length and identified many difficulties with that evidence. Ultimately, the trial judge was not prepared to convict based on Utman's testimony.
III
A. The admissibility of Carol Anne Eaton's statement
[15] Carol Anne Eaton is the common law spouse of Mr. Hall. She met with the police at her father's request on August 25, 2010. As described above, she took the police to a storage facility and pointed out two bags containing four operable firearms, one of which was a .357 magnum. The police interviewed Ms. Eaton the next day. [page646]
[16] Ms. Eaton gave two lengthy videotaped statements under oath on August 26, 2010. One of the statements involved the murder of a man named Billy Mason. Mason, himself a career criminal, had been murdered in 2006. The police suspected Hall. Ms. Eaton told the police that Hall had admitted to murdering Mr. Mason. The second statement related to the charges of counselling the murder of Mr. Yaworski and Mr. Salciccioli. Ms. Eaton told the police that she dug up the guns they found in the storage facility on Hall's instructions and took them to the storage facility. Hall also told Ms. Eaton that Utman would be calling her and that she should give Utman "Frank". "Frank" was a nickname Hall used for one of his guns. Ms. Eaton's statement, if admissible, offered some support for Utman's evidence that Hall wanted him to murder the two witnesses.
[17] The Crown tried Hall for the murder of Mr. Mason first. At that trial, the Crown sought to call Ms. Eaton as a witness. The trial judge held that s. 15 of the Canadian Charter of Rights and Freedoms required that s. 4 of the Canada Evidence Act, R.S.C. 1985, c. C-5 be read to include common law spouses, meaning that Ms. Eaton was not a compellable witness for the Crown on the murder charge:[^1] R. v. Hall, 2012 ONSC 7084; R. v. Hall (2013), 114 O.R. (3d) 393, [2013] O.J. No. 554, 2013 ONSC 834 (S.C.J.).
[18] After the trial judge at the murder trial ruled that Ms. Eaton was not a compellable witness for the prosecution, the Crown, relying on the principled exception to the hearsay rule, sought to introduce Ms. Eaton's statement to the police for the truth of its contents. The trial judge, applying R. v. Couture, [2007] 2 S.C.R. 517, [2007] S.C.J. No. 28, 2007 SCC 28, held that admitting Ms. Eaton's statement would "effectively thwart the spousal incompetency rule". The trial judge excluded the statement: R. v. Hall, 2013 ONSC 1152.[^2]
[19] At the trial of the counselling charges, the Crown chose not to call Ms. Eaton as a witness for the prosecution. The Crown conceded, based on the trial judge's ruling in the murder case, that Ms. Eaton, as a common law spouse, was not compellable by the Crown. [page647]
[20] The Crown, however, did attempt to introduce Ms. Eaton's statement to the police concerning Hall's involvement in the counselling charges, arguing, as it did at the murder trial, that the statement was admissible for its truth under the principled exception to the hearsay rule. The Crown relied on the non-compellability of Ms. Eaton to establish the necessity requirement for the admissibility of her statement and submitted that the totality of the circumstances surrounding the taking of the statement demonstrated sufficient threshold reliability.
[21] The Crown accepted that, in addition to establishing the preconditions of necessity and threshold reliability, the Crown had to demonstrate that the statement was admissible under the ratio in Couture. The Crown argued that the facts of the case were distinguishable from Couture and warranted a different result. This was essentially the same argument the Crown had unsuccessfully advanced at the murder trial.
[22] Trial counsel agreed that the admissibility of Ms. Eaton's statement should be approached in two stages. At the first stage, the trial judge would determine, applying Couture, whether the statement should be excluded as undermining the rationale of the spousal incompetency rule even if it was otherwise admissible hearsay. At the second stage, the court would determine whether Ms. Eaton's statement was sufficiently reliable to justify its admission under the principled exception to the hearsay rule. The Crown and defence agreed that the Couture issue should be argued and decided before addressing the threshold reliability issue. That issue, which would require an evidentiary inquiry, would not be reached if the Crown failed to adequately distinguish Couture.
[23] The trial judge proceeded as suggested by counsel. He decided that the analysis in Couture dictated that Ms. Eaton's statement should be excluded. Consequently, he did not reach the question of threshold reliability: R. v. Hall, 2014 ONSC 434. The trial judge said, at para. 12:
In my view, the admissibility of the statement made by Carol Anne Eaton which the Crown seeks to introduce as evidence at the trial of Jeremy Hall is governed by the decision in Couture. In the present case, the statement of Carol Anne Eaton was made during the marriage, just like the statement in Couture. Carol Anne Eaton's statement was taken under oath and generally in accordance with the procedure recommended in R. v. B. (K.)(G.), [1991] 1 S.C.R. 740. From this, I conclude that the statement was taken with the express intention of seeking to have it admitted in evidence against Jeremy Hall pursuant to the principled exception to the hearsay rule.
[24] The Crown launched this appeal in April 2014. In her factum, Crown counsel accepted, as the Crown had at trial, that Ms. Eaton was not a compellable witness for the Crown and that [page648] Couture governed the admissibility of Ms. Eaton's out-of-court statement. Counsel argued that the trial judge had erred in law in his application of the principles from Couture to the facts of this case.
[25] Before oral argument of this appeal, this court released R. v. Nguyen (2015), 125 O.R. (3d) 321, [2015] O.J. No. 2098, 2015 ONCA 278. At para. 68 and following, the court held that the exclusion of common law spouses from the ambit of spousal non-compellability in s. 4 of the Canada Evidence Act was a justified infringement of s. 15(1) of the Charter. Nguyen determined that common law spouses were compellable witnesses for the Crown in a criminal prosecution.
[26] The trial judge's rulings must be considered in light of Nguyen. Nguyen impacts on the proceedings at trial in two ways. First, Nguyen establishes that Ms. Eaton was a compellable witness,[^3] meaning the Crown could not rely on spousal non-compellability to establish the necessity prerequisite to the admission of Ms. Eaton's out-of-court statement. Second, because Ms. Eaton was compellable, Couture had no application to the admissibility of Ms. Eaton's statement. The admissibility of that statement turned entirely on considerations of necessity and threshold reliability: R. v. Nguyen, at para. 136.
[27] The Crown appeal must also be assessed in light of the law as articulated in Nguyen. No doubt, were the trial held post-Nguyen, the Crown would have called Ms. Eaton as a witness and, depending on her testimony, would have attempted to introduce her out-of-court statement. However, the Crown cannot, and does not, argue that the trial judge erred in holding that Ms. Eaton was not a compellable witness. The trial judge made no such ruling. The Crown chose not to call Ms. Eaton and thereby require the trial judge to make a ruling on her compellability. The Crown chose, instead, to proceed on the basis that Ms. Eaton was not compellable.
[28] The Crown does argue that the trial judge erred in excluding Ms. Eaton's statement. Clearly, the trial judge, who did not have the benefit of Nguyen, erred. After Nguyen, Couture was irrelevant to the admissibility of Ms. Eaton's statement. The trial judge erred in law in excluding the statement on the basis of Couture. [page649]
[29] Not every error in law entitles the Crown to succeed on an appeal from acquittal. The Crown must show "in the concrete reality of the case at hand" that the legal error had some material bearing on the acquittal, such that the outcome may well have been affected by the legal error: R. v. Graveline, [2006] 1 S.C.R. 609, [2006] S.C.J. No. 16, 2006 SCC 16, at paras. 14-16; R. v. McRae, [2013] 3 S.C.R. 931, [2013] S.C.J. No. 68, 2013 SCC 68, at para. 30; R. v. Riesberry, [2015] S.C.J. No. 103, 2015 SCC 65, at para. 13.
[30] The Crown cannot demonstrate that the erroneous application of Couture had a material bearing on the exclusion of the evidence and hence the acquittal of Hall. On the record before the trial judge, he could not possibly have admitted Ms. Eaton's statement under the principled exception to the hearsay rule. The Crown relied exclusively on Ms. Eaton's assumed non-compellability to establish the necessity prerequisite to the admission of her out-of-court statement. As Nguyen instructs, Ms. Eaton was compellable. Absent any other evidentiary basis for a finding of necessity, the trial judge could not have admitted Ms. Eaton's statement. Consequently, while Nguyen renders Couture inapplicable, it also effectively renders Ms. Eaton's out-of-court statement inadmissible without first calling Ms. Eaton and establishing the requisite necessity: see R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22, at pp. 796-99 S.C.R.
[31] The Crown on appeal invites the court to conclude that had the Crown called Ms. Eaton, she would have either refused to testify, or would have recanted her statement to the police to the extent that it incriminated Hall. Had either occurred, the necessity requirement for the admissibility of her out-of-court statement would have been established.
[32] The Crown's speculation as to what may have occurred had Ms. Eaton been called as a Crown witness may well be correct. It remains, however, speculation. Apart from its discretion to receive fresh evidence in limited circumstances, this court takes the trial record as it finds it. The Crown on an appeal from acquittal must demonstrate reversible legal error based on that record, not reversible error based on a record that might have existed had different tactical decisions been made at trial. On the trial record, the trial judge could not admit Ms. Eaton's statement to the police under the principled exception to the hearsay rule. His misapplication of Couture to that statement had no impact on its ultimate admissibility.
[33] Nothing in my analysis should be taken as a criticism of trial counsel for the Crown. He made a reasonable decision to [page650] not relitigate the question of Ms. Eaton's compellability.[^4] With the benefit of Nguyen, Crown counsel undoubtedly would have made a different decision, the trial would have followed a different evidentiary course and the verdict may have been different. Neither alters the fact that this trial record offers no basis upon which Ms. Eaton's statement could be admitted under the principled exception to the hearsay rule.
[34] My analysis is predicated on the limited power of the Crown to appeal from an acquittal, and the limited powers of this court on an appeal from acquittal. The result may well be different were this an appeal from conviction, given the broader grounds on which an accused can appeal, and this court's power to allow an appeal where there is "a miscarriage of justice": Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(a) (iii). The court cannot allow an appeal from an acquittal on the basis of "a miscarriage of justice".
[35] This ground of appeal fails.
B. The admissibility of the intercepted communications
(i) The authorizations
[36] The Crown obtained an authorization in June and a second one in July of 2010 permitting the interception of Hall's conversations with Dwayne Utman. The first authorization permitted interceptions in the jail cell shared by Hall and Utman. The second expanded the scope of the first, permitting interceptions at various other locations. The two authorizations can be examined together. There is no argument that one authorization could survive judicial scrutiny and the other could not, or that evidence obtained under one authorization may be admissible while evidence obtained under the other should be excluded under s. 24(2) of the Charter. The two stand or fall together.
[37] Both authorizations were granted under s. 184.2 of the Criminal Code. That section requires that at least one party to the communication consent to the interception. Utman consented to the interception of his communications with Hall and [page651] the appropriate consents were attached to the applications for the authorizations.
[38] The authorizations permitted interceptions in respect of murder (the Mason murder) and counselling murder (the plot to murder the two witnesses). They allowed interceptions of communications in the jail cell shared by Hall and Utman and at any other place used by the consenting party, Utman.
[39] The Crown sought to introduce several intercepted conversations between Utman and the respondent. These included ten intercepted jail cell communications and some 80 cellphone communications and conversations intercepted using a body pack. The evidentiary significance of the interceptions is a matter of debate. The content of some, however, was capable of confirming aspects of Utman's trial testimony about the plan to murder the two witnesses.[^5]
[40] Section 184.2(3) sets out the three preconditions to the granting of an authorization under s. 184.2:
-- there must be reasonable grounds to believe the identified offence has been or will be committed (s. 184.2(3)(a));
-- one of the intended participants in the communication to be intercepted must consent to the interception (s. 184.2(3) (b)); and
-- there must be reasonable grounds to believe that information concerning the named offences will be obtained by the interceptions of the communications (s. 184.2(3)(c)).
(ii) The trial proceeding
[41] The affidavits relied on in support of the application for the authorizations contained information provided to the affiant from a variety of sources; however, the most significant information came from Dwayne Utman. The affiant described that information as "new and compelling". Counsel for Hall argued that without the information provided by Utman, there was no basis upon which the authorizations could have been granted. He submitted that without Utman's information, there were no grounds to believe that the conversations between Utman and Hall could provide evidence of either Mason's murder or the counselling of the murder of the witnesses (s. 184.2(3) (c)). [page652] Furthermore, he submitted that without the information provided by Utman, there were no reasonable grounds to believe that Hall had counselled or would counsel Utman to kill the two witnesses (s. 184.2(3)(a)).
[42] Counsel was allowed to cross-examine the affiant. Counsel's cross-examination focused on factors relevant to Utman's credibility and the reliability of the information he had provided to the police. He argued that the cross-examination demonstrated that the affiant failed to disclose several significant facts material to a proper assessment of Utman's credibility and the reliability of the information he gave to the police.
[43] The trial judge found that the affiant had failed to disclose information germane to a proper assessment of Utman's credibility: R. v. Hall, [2014] O.J. No. 557, 2014 ONSC 708 (S.C.J.), at paras. 48-51. He identified five specific areas of non-disclosure:
the affiant failed to disclose that Utman had a powerful motive to falsely implicate Hall. He believed that Hall was involved in the torture and murder of his sister a few years earlier;
the affiant failed to disclose that Utman had tried to "get a deal" in exchange for helping the police implicate Hall;
the affiant failed to disclose the full extent of Utman's criminal activity;
the affiant failed to disclose Utman's ongoing drug addiction;
the affiant described Utman as a "police agent", although that status had not been finalized when the affidavit was sworn.
[44] After identifying the areas in which the affiant had failed to make full and frank disclosure of facts material to Utman's credibility, the trial judge said, at paras. 51-52:
I'm drawn to the conclusion that Detective Sergeant Johnstone [the affiant] intentionally or negligently portrayed Dwayne Utman in a far more favourable light than he should have. In my view, this conduct materially distorted the picture that was placed before the issuing Justice. This is not a case where the information that was not before the issuing Justice can be considered by me as a result of amplification[.]
In the result, because of the material omissions about Dwayne Utman's background and the more favourable portrayal of him as a police agent, I find that the facts provided by Dwayne Utman as contained in the affidavit in support of the wiretap authorization must be excised. [page653]
[45] Having "excised" information sourced to Utman, the trial judge considered whether the remainder of the information satisfied the statutory prerequisites for the granting of the authorizations. He concluded that it did not and set aside the authorizations: R. v. Hall, [2014] O.J. No. 557, 2014 ONSC 708, supra, at paras. 53-55.
[46] The trial judge then turned to the Charter. Absent the authorizations, the interceptions were unlawful and constituted an infringement of Hall's rights under s. 8 of the Charter. In concluding that s. 24(2) required the exclusion of the interceptions from evidence, the trial judge emphasized the serious nature of the police misconduct, describing the non-disclosure of material facts as either "intentional" or "grossly negligent", and the availability of Utman as a witness at trial: R. v. Hall, [2014] O.J. No. 557, 2014 ONSC 708, supra, at paras. 61-64.
(iii) Did the trial judge err in setting aside the authorizations?
[47] The trial judge acknowledged the narrow ambit of his review of the orders granting the authorizations: R. v. Hall, [2014] O.J. No. 557, 2014 ONSC 708, supra, at paras. 42-47. He referred to some of the applicable case law, beginning with R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, at p. 1452 S.C.R., in which Sopinka J. said:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
[48] The language from Garofoli has been repeated with and without minor variations in an unbroken line of authority stretching over the last 25 years: e.g., see R. v. Pires, [2005] 3 S.C.R. 343, [2005] S.C.J. No. 67, 2005 SCC 66, at para. 30. No one has said it more clearly than Sopinka J. and I will use his language.
[49] In her helpful submissions, Crown counsel contends that the trial judge improperly deleted information from the affidavit which had not been shown to be inaccurate. Relying on cases like R. v. Ebanks (2009), 97 O.R. (3d) 721, [2009] O.J. No. 5168, 2009 ONCA 851, at paras. 25-28, she submits that the trial judge should have gone through the affidavit as amplified by the cross-examination and omitted only the factual assertions shown [page654] to be inaccurate or misleading. Counsel contends that the trial judge went too far in excluding all information sourced from Utman.
[50] The Crown's submission misconceives the nature of the attack on the authorization in this case. The cross-examination of the affiant was not intended to show that specific facts in the affidavit were misstated or that there were material omissions which made an assertion in the affidavit misleading. The cross-examination had a broader goal, aiming to discredit Utman and the reliability of the information he had provided to the affiant. In this case, as for example in R. v. Adair, [1994] O.J. No. 3265, 24 W.C.B. (2d) 12 (Gen. Div.), at paras. 94-97, the cross-examination of the affiant went not to specific information in the authorization but to the credibility of the main source of the information in the affidavit.
[51] The defence argument required that the trial judge consider the affidavit as amplified and expanded and decide whether, based on that entire record, there remained grounds upon which a judge could reasonably rely on the information sourced from Utman as a basis for granting the authorization. Using the language of Garofoli, the trial judge was required to take "the new evidence" relevant to Utman's credibility, consider it with the evidence in the affidavit and decide whether there "continued to be any basis" for the order granting the authorizations. The trial judge followed that approach and concluded that the information provided on cross-examination effectively destroyed Utman's credibility and the reliability of any information sourced from Utman. Given that conclusion, the trial judge properly assessed the continued viability of the authorizations by disregarding any information that came from Utman.
[52] The other arguments advanced by the Crown run aground on the shoals of appellate deference. Absent error in law, a failure to consider relevant evidence, a material misapprehension of evidence or an unreasonable factual finding, this court must defer to the trial judge's assessment of the effect of the cross-examination on the sustainability of the authorization: R. v. Ebanks, at para. 22; R. v. Sadikov, [2014] O.J. No. 376, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 89.
[53] It is beyond dispute that the affiant failed to disclose several facts that were relevant to Utman's credibility. At least some of those facts, for example, the information pertaining to Utman's belief that Hall may have been involved in his sister's murder, were obviously significant to the assessment of Utman's credibility and, consequently, the reliability of the information he provided. The affiant offered explanations for his omissions. [page655] It was for the trial judge to assess the affiant's evidence and the cumulative significance of the information provided during the affiant's cross-examination on the reliability of the information coming from Utman. Different judges might have made different assessments. Even if another trial judge may have taken a more benign view of the effect of the material omissions on Utman's credibility, that is no reason for this court to interfere with this trial judge's assessment.
[54] The Crown attempts to show a failure by the trial judge to consider relevant evidence by pointing to the absence of any reference by the trial judge to information in the affidavit independent of Utman that could confirm the reliability of Utman's information. No doubt, the trial judge was required to consider the entirety of the affidavit, including potentially confirmatory evidence, in determining the impact of the cross-examination. It is also true that the trial judge did not specifically refer to the confirmatory evidence marshalled by the Crown in her argument. The trial judge's failure to advert to the evidence does not, however, mean he did not consider it.
[55] I have considered the information highlighted by the Crown. Some of that information refers to facts that are peripheral to the central events, e.g., Hall's relationship with the Hells Angels, or to facts that would be widely known in the local criminal community and were a matter of public record, e.g., the nature of the charges against Hall. This kind of information could do very little to buttress Utman's credibility and the reliability of the information provided by him as it related to either the murder investigation or to the counselling murder investigation.
[56] The Crown also points to information in the affidavit about Mason's murder and Hall's involvement in that murder. She submits that much of that information comes from sources other than Utman and rendered the information Utman did provide more credible. Clearly, this information is not collateral. It helped establish reasonable grounds to believe that Mason had been murdered and that Hall was implicated in the murder. The trial judge's concern, however, as it related to the murder investigation, was not that there was no basis to implicate Hall in the murder, but rather that absent Utman's information, there was no basis to conclude that conversations between Utman and Hall could provide evidence of the murder: see R. v. Hall, [2014] O.J. No. 557, 2014 ONSC 708, supra, at para. 53.
[57] Evidence independent of Utman going to show that Mason had been murdered and Hall was implicated in that murder would not necessarily lend credence to the Crown claim that conversations between Hall and Utman could produce [page656] information relevant to that murder. On the trial judge's assessment, that link could be found only in the information provided by Utman, which he determined was not sufficiently reliable to support the belief that conversations between Utman and Hall could provide information about the murder.
[58] The Crown next submits that, even if all of the information from Utman was properly removed from the affidavit, there remained a basis upon which a judge could reasonably conclude that there were grounds to believe that information concerning the Mason murder could be obtained through the interception of conversations between Utman and Hall. Crown counsel submits that the failure to consider the residue of the information provides a basis for reversal. She argues that if there remained evidence to support the interceptions in relation to the Mason murder, the interceptions were lawful, even if they could not be justified as having any link to the alleged plot to kill the two witnesses: see R. v. Commisso, 1983 CanLII 160 (SCC), [1983] 2 S.C.R. 121, [1983] S.C.J. No. 67, at pp. 129-30 S.C.R.
[59] In support of the argument, the Crown relies on the following:
-- Utman and Hall had known each other for years;
Utman and Hall had engaged in criminal activity together in the past; and
-- Utman and Hall were sharing a jail cell.
[60] No one would suggest that the trial judge was unaware that Utman and Hall shared a jail cell and had a common criminal history. However, he was also aware of facts that would suggest that Hall would not be likely to speak to Utman about the Mason murder. Utman and Hall had not seen each other for about eight years. Hall had reason to believe that Utman thought that Hall was involved in the torture and murder of his sister. There was also evidence before the trial judge that prior attempts to gather information implicating Hall in Mason's murder by the interception of communications between Hall and criminal associates had failed.
[61] The trial judge's failure to specifically advert to the shared criminal history of Hall and Utman and their common living accommodation cannot be equated with a failure by him to consider those factors. The trial judge's failure to specifically advert to this evidence speaks to the relative insignificance of the information. Even if I were prepared to assume that the trial judge had failed to consider this information, I do not think it [page657] could have altered his determination as to the impact of the cross-examination on the sustainability of the authorizations.
(iv) Did the trial judge err in excluding the evidence?
[62] Having determined that the interceptions were unlawful and therefore breached Hall's rights under s. 8, the trial judge turned to s. 24(2). Employing the well-known tripartite approach set down in R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, the trial judge excluded the evidence. The Crown accepts that the approach in Grant controls, but argues that the trial judge overemphasized considerations favouring exclusion and underemphasized considerations favouring admission.
[63] This part of the appeal does not require any detailed analysis. The trial judge was alive to the applicable law and addressed the factors relevant to the application of s. 24(2) of the Charter. Absent legal error, a palpable and overriding error, or an unreasonable conclusion, this court defers to the trial judge's ruling: R. v. Côté, [2011] 3 S.C.R. 215, [2011] S.C.J. No. 46, 2011 SCC 46, at para. 44.
[64] I need not review the trial judge's analysis of each of the three Grant factors. That analysis reveals no error.
[65] I must, however, emphatically reject the submission that the trial judge overstated the seriousness of the police misconduct in considering the admissibility of the intercepted communications. The trial judge's characterization of the omissions from the affidavit as "intentional" or "grossly negligent" was reasonable. Those omissions were reasonably capable of seriously distorting a proper assessment of the credibility of not only Utman, but also Jason Lusted, another long-time criminal said by the affiant to have provided information implicating Hall in Mason's murder. As the trial judge explained, either the affiant deliberately left out the details to secure the authorizations, or he operated under a profound and dangerous misunderstanding of the affiant's obligation to make full and frank disclosure when seeking an ex parte order involving a serious intrusion into the personal privacy of the target of that order. That obligation is central to the viability of prior judicial authorization as a means of striking the proper balance between reasonable and unreasonable state intrusions into personal privacy: see Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36, at pp. 159-60 S.C.R.
[66] I would defer to the trial judge's holding that the evidence should be excluded. [page658]
IV
Conclusion
[67] I would dismiss the appeal.
Appeal dismissed.
[^1]: Section 4 of the Canada Evidence Act has been amended. Section 4(2) now reads: "No person is incompetent, or uncompellable, to testify for the prosecution by reason only that they are married to the accused": S.C. 2015, c. 13, s. 52(1).
[^2]: Hall was ultimately convicted of Mr. Mason's murder. The conviction is under appeal.
[^3]: The respondent sought to file fresh evidence on the appeal in support of an argument that Ms. Eaton was not compellable even on the analysis in Nguyen. As I would not give effect to the Crown's argument on this ground of appeal, I need not consider the respondent's request to admit fresh evidence.
[^4]: When the Crown elected not to relitigate Ms. Eaton's compellability, apart from the trial judgment in the Mason murder, there were trial decisions in Ontario going both ways on the compellability of a common law spouse. Indeed, the trial judge at the Mason murder had initially held that Ms. Eaton was compellable, but had reconsidered his decision after the Supreme Court of Canada released Quebec (Attorney General) v. A., [2013] 1 S.C.R. 61, [2013] S.C.J. No. 5, 2013 SCC 5.
[^5]: Counsel for Hall filed fresh evidence on the appeal pertaining to the accuracy of some of the summaries of the relevant conversations filed at trial. In light of my disposition of the appeal, I need not consider the admissibility of this fresh evidence.
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