Court of Appeal for Ontario
Date: May 30, 2017
Docket: C61457
Judges: Doherty, Blair and Lauwers JJ.A.
Between
Her Majesty the Queen Respondent
and
Brett Dunstan Appellant
Counsel
Frank Addario and Andrew Burgess, for the appellant
Nicholas Devlin, for the respondent
Heard
January 17, 2017
Appeal
On appeal from the conviction entered on October 23, 2015 by Justice Bruce A. Glass of the Superior Court of Justice, sitting with a jury.[1]
Endorsement
R.A. Blair J.A.:
Introduction
[1] Mr. Dunstan was convicted of multiple counts of possession for the purpose of trafficking and one count of possession of the proceeds of crime after the police discovered significant amounts of various drugs and approximately $100,000 in cash after responding to an anonymous call reporting a break-in at his house. He sought to have the evidence of the drugs and cash excluded on the basis that the police had staged the break-in and placed the anonymous call in order to gain access to his house illegally, in breach of his rights under s. 8 of the Charter of Rights and Freedoms.
[2] In the course of that application, Mr. Dunstan requested an order permitting the defence to use a high-quality microphone to record the testimony of Staff Sergeant Cyril Gillis, the police officer Mr. Dunstan alleged was the maker of the anonymous call and instigator of the break-in, for the purpose of enabling the police officer's voice to be subjected to expert spectrographic voice identification analysis. This appeal turns on whether a Superior Court judge has the authority to make such an order.
[3] The Crown conceded that, if a state agent placed the call and staged the break-in, there was a serious breach of the appellant's s. 8 rights requiring the evidence to be excluded as a result.
[4] The pre-trial application judge dismissed the s. 8 application. Mr. Dunstan appeals his convictions on two grounds relating to the pre-trial Charter application. He submits that the pre-trial application judge erred in:
(a) determining that he lacked the authority to permit the defence to record the evidence of Staff Sergeant Gillis with a high-quality microphone in order to subject his voice to a spectrographic voice identification analysis; and,
(b) holding that he, the appellant, had the burden of proving the illegality of the warrantless entry onto his property.
[5] For the reasons that follow, I would allow the appeal and order a new trial.
Background and Facts
[6] On September 20, 2011, York Regional Police entered a house at 76 Red Ash Drive in Markham in response to an anonymous call reporting a break-in at those premises. The call was received by the police 911 operator on the York Regional Police non-emergency line at approximately 2 a.m. Upon entering the premises the police discovered drugs in plain view. The officers secured the premises, obtained a search warrant and subsequently found: (i) 43 pounds of marijuana; (ii) 4.7 kilograms of cocaine; (iii) 4 kilograms of psilocybin; (iv) 6.77 grams of MDMA; and (v) over $100,000 in cash. The officers seized the drugs, the cash and some drug-related paraphernalia.
[7] It is the circumstances surrounding that discovery – and, in particular, the identity of the person who made the anonymous call – that lie at the heart of this appeal.
Project Gladiator
[8] In April 2011, Durham Regional Police began a probe into a drug trafficking ring. The investigation was known as "Project Gladiator", and, on September 20, 2011, its eight-officer team was led by Staff Sergeant Gillis.
[9] During the course of the investigation, the police obtained wiretap authorizations and a general warrant to enter places associated with the principal target of the investigation and other known persons in order to search for items related to the investigation, such as controlled substances and drug-related evidence. The general warrant permitted the police to disguise these covert entries as break-ins if they located a large cache of drugs.
[10] Despite a number of these covert "sneak and peek" entries during the course of the investigation, however, Sergeant Gillis and his team had not been able to discover the "stash house" where the drugs were kept.
[11] Mr. Dunstan was not a major target of Project Gladiator. It was focused on a Mr. Liu and his known associates. The appellant and Mr. Liu had been seen together on one occasion, however – on July 21, 2011 – when the surveillance team observed them meeting in a parking lot in Markham. A person later identified as the appellant drove into the parking lot in a black Jeep Cherokee, met with Mr. Liu, drove away and returned after a few minutes, at which point there was an exchange of items, including a black knapsack given by the appellant to Mr. Liu.
[12] As part of the investigation, the Project Gladiator team staged a covert entry at Mr. Liu's condominium and placed a wiretap device inside. They also put a tracking device under his vehicle. The Project suffered a set-back, however, when Mr. Liu discovered the tracking device, became suspicious that he was the subject of an investigation by the police, and announced – in an intercepted communication – that he was shutting down the operation for a period of 30 days. The wiretap source of information dried up.
[13] But the investigation continued. Durham Regional Police conducted a number of covert entries pursuant to the general warrant in an unsuccessful attempt to locate the stash house. They pursued other measures.
[14] Amongst those measures was the following. The Durham Regional Police officers went to the Markham location where the appellant and Mr. Liu had met and conducted a surveillance exercise by driving out in a number of directions from that location within what they estimated was a perimeter of where the appellant might have gone in the time he had to drive away and return at the time of the meeting. In the course of that exercise, they discovered the appellant's black Jeep Cherokee in the driveway at 75 Red Ash Drive. The vehicle was observed in the same place the following day. This information was reported to Staff Sergeant Gillis.
[15] 76 Red Ash Drive was not named in the general warrant and could not be targeted for a sneak and peek covert entry pursuant to that authorization.
The Anonymous Call and Entry into 76 Red Ash Drive
[16] Early in the morning of September 20, 2011, York Regional Police received an anonymous phone call on its non-emergency line. The caller reported that he had seen eight men run out of 76 Red Ash Drive and it looked suspicious. The content of the call in its entirety is as follows:
Operator: York Regional Police Communications, Jaime …
Caller: Uh, I just saw eight guys run out of a house at 76 Red Ash and look suspicious.
Operator: 76 Red Ash?
Caller: Yup.
Operator: What city is that in?
Caller: It's in Markham.
Operator: And this just happened?
Caller: It just happened, like 15 minutes ago.
Operator: So where are they now?
Caller: I'm not following them. I don't know. They didn't look too friendly.
Operator: So eight males 15 minutes ago ran out of …
[The caller hangs up.]
Operator: Hello?
[17] The anonymous call was made from a blocked telephone number. As a result, the caller could not be identified and the phone call could not be traced. York Regional Police's non-emergency line differs from the emergency 911 line in that if the emergency caller, using a cell phone, hangs up, the operator can call back whereas on the non-emergency line, the operator does not have the ability to call the person back where the caller's number is blocked. In addition – although the pre-trial application judge was ultimately not prepared to draw an adverse inference against Staff Sergeant Gillis in this respect – a "suspicious person" report is a special category of report for police telephone operators not disclosed to the general public by law enforcement officers. Upon the receipt of such a call, the operator sends the information to the dispatcher who then dispatches officers to the scene.
[18] York Regional Police accordingly responded to the call as notice of a potential break-in in accordance with standard procedure. Finding the front door broken open upon their arrival, the officers entered the premises at 76 Red Ash Drive to ensure the safety of anyone who might have been in it and that no unauthorized persons remained. No one was there, but the officers observed various open bags of drugs in plain view.
[19] The premises were then secured. York Regional Police obtained a warrant and upon re-entering the premises pursuant to the warrant discovered the drugs and cash outlined above together with some drug cutting equipment and packaging supplies.
[20] Staff Sergeant Gillis and Durham Regional Police later claimed credit for finding the stash house and the drugs.
The Section 8 Voir Dire and the Voice Identification Issue
[21] Prior to trial, the appellant applied to have the evidence of the drugs, the drug-related paraphernalia and the cash, excluded under s. 24(2) of the Charter on the grounds that the warrantless entry of the premises by York Regional Police violated his s. 8 right to protection against unreasonable search and seizure. The pre-trial application judge dismissed the application, but much happened en route to that ultimate determination.
[22] The defence initially took the position that the break-in was staged by York Regional Police in cooperation with Durham Regional Police. The evidence did not support this argument and it was eventually abandoned. Instead – after hearing Staff Sergeant Gillis's voice during his testimony at the voir dire, and comparing it with the anonymous caller's voice on the police tape – the defence began to focus on Staff Sergeant Gillis as the person who made the call and instigated the allegedly fake break-in.
[23] Two things evolved from this. First, the defence retained a voice recognition expert, Dr. Stevan Pausak, to conduct a spectrographic voice analysis of Staff Sergeant Gillis's voice in order to determine whether his voice matched that of the anonymous caller.[2] Secondly, defence asked that Staff Sergeant Gillis be recalled for further cross-examination, and that the defence be permitted to record that testimony on a high-quality microphone as opposed to relying on the lower-quality court recording for purposes of the spectrographic analysis.
[24] Dr. Pausak testified on the voir dire. He said that he had listened to the anonymous caller's voice on the police tape and to Staff Sergeant Gillis's voice as captured on the court audio tape. However, he would need to hear Staff Sergeant Gillis's voice as recorded on a high-quality microphone in order to be able to conduct a proper analysis and give an opinion as to whether Staff Sergeant Gillis was the caller.
[25] The Crown agreed to recall Staff Sergeant Gillis for further cross-examination on the issue of whether he made the anonymous call and whether he and his team staged the break-in. It also agreed that he that he could be asked to read the text of the anonymous call into the record. But the Crown opposed any order permitting the defence to record the subsequent cross-examination testimony on a high-quality microphone for the purpose of expert analysis.
[26] After hearing counsel's submissions, the pre-trial application judge dismissed the application, ruling that he did not have the power to make such an order.
[27] The voir dire continued and, in the end, the pre-trial application judge dismissed the appellant's application to exclude the impugned evidence, largely on the basis that the defence had not met the burden of showing on a balance of probabilities that Staff Sergeant Gillis was the anonymous caller and, therefore, that the break-in at 76 Red Ash Drive represented a violation of s. 8 of the Charter. In that respect, the following evidence is also pertinent.
[28] Staff Sergeant Gillis vigorously denied that he made the anonymous call or that he or his team had anything to do with the break-in. He testified that he was off duty at the time and that he only found out about the events at 76 Red Ash Drive the following day. In this respect, the defence sought production of Staff Sergeant Gillis's phone records and information regarding his whereabouts at the relevant time, on the theory that this information would assist in verifying or contradicting his evidence. The records and information regarding his whereabouts were not provided either by Staff Sergeant Gillis or by the Crown.[3]
[29] He did acknowledge that he was prepared to take risks during the investigation and that he had the ability to conduct the type of break-in that occurred. He agreed that the Project Gladiator team had engaged in dozens of covert entries during the course of its probe, but his evidence was that all those entries were lawfully carried out pursuant to the general warrant authorization.
[30] 76 Red Ash Drive was not a named target under the general warrant that was in effect at the time of the break-in. Staff Sergeant Gillis agreed that the team probably had grounds to obtain an authorization to enter those premises. He did not pursue that route, he said, because the team had to prioritize the use of their resources towards other, more developed, suspects.
[31] When recalled for further cross-examination, Staff Sergeant Gillis read the text of the anonymous call into the record four times (consistent with the number of comparison samples the defence voice identification expert required for his analysis). For the reasons outlined above, Dr. Pausak was not able to provide a professional opinion about the comparison, given the low-quality audio characteristics of the court's recording equipment.
[32] The pre-trial application judge concluded that the circumstances of the anonymous call were suspicious, that it was unlikely the call was made by a concerned citizen, and that it was reasonable to question whether Staff Sergeant Gillis was the caller. In the end, however, he was not persuaded that Staff Sergeant Gillis was in fact the caller. His assessment of Staff Sergeant Gillis's credibility hinged on his own comparison of the anonymous caller's voice, as recorded on the non-emergency line's high-quality audio equipment, and Staff Sergeant Gillis's voice, as recorded on the court's lower-quality recording equipment. He found that there were similarities, but also some differences between the voices. In the course of this exercise, he cautioned himself on three occasions about "the limitations of voice comparison for someone who is not trained in voice identification".
[33] Having determined that the burden of proof on this issue fell on the defence, the pre-trial application judge concluded (reasons, para. 132):
[T]hat while there are reasons to be suspicious of Gillis, the evidence does not go beyond raising a suspicion. It falls short of satisfying me on a balance of probabilities that he or any other member of the Durham Regional Police was responsible for the break-in at 76 Red Ash and the subsequent call to the York Regional Police. For these reasons, the defendant's application is dismissed.
Law and Analysis
[34] As noted at the outset of these reasons, the appellant raises two issues on appeal. Did the pre-trial application judge err in:
(a) determining that he lacked the authority to permit the defence to record the evidence of Staff Sergeant Gillis with a high-quality microphone in order to subject his voice to a spectrographic voice identification analysis; and,
(b) holding that he, the appellant, had the burden of proving the illegality of the warrantless entry onto his property.
[35] For the reasons that follow, I would answer both questions in the affirmative.
Did the Court Have the Power to Allow Staff Sergeant Gillis's Testimony to be Recorded with a High-Quality Microphone?
[36] The pre-trial application judge dismissed the appellant's application for permission to record Staff Sergeant Gillis's testimony using a high-quality microphone on the basis that he had no power to make such an order.
[37] He did so for three reasons. First, he concluded that he was bound by this Court's decision in R. v. Karimi, 2014 ONCA 133 which held that the Court of Appeal did not have the authority under s. 683(1) of the Criminal Code to compel a witness to attend before it to provide a voice sample on appeal. Secondly, he held that his inherent jurisdiction as a Superior Court judge did not provide him with the power to make the order. Finally, he rejected the appellant's argument that his right to make full answer and defence ought to permit the recording.
[38] Here, the appellant seeks to distinguish Karimi. He repeats his arguments based on the inherent jurisdiction of a Superior Court judge and his right to make full answer and defence. In addition, he submits that s. 136(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 authorizes a judge to make the order sought.
[39] I agree with the appellant that the pre-trial application judge had the power to make the order sought.
Karimi is Not Dispositive in These Circumstances
[40] In Karimi, this Court determined that an appellate court does not have the authority pursuant to s. 683(1) of the Criminal Code to compel a witness to attend before it, not for the purpose of giving testimony, but for the sole purpose of permitting the witness's voice to recorded and subjected to voice identification analysis.
[41] Section 683(1) was the only potential source of authority considered in that case. With respect to subsection 683(1)(a), which permits an appeal court to make an order for "the production of any writing, exhibit, or other thing connected with the proceedings", the Court concluded that the authority was "limited to the production of an existing writing, exhibit or 'other thing' connected to the proceeding" (para. 5). With respect to subsection 683(1)(b), which provides that the court can order that any person who could have been a compellable witness "attend and be examined", the Court said, at para. 6:
That section refers to an order that compels a person to attend qua witness for the purpose of answering questions or producing other kinds of evidence relevant to the proceeding. The section does not contemplate compelling a person to attend not as a witness, but for the purposes of assisting in the creation of material that may be used by an expert in the formulation of his or her opinion.
[42] The pre-trial application judge relied upon this passage – as does the Crown – and concluded that he was bound by the decision in Karimi. I agree with counsel for the appellate, however, that Karimi is distinguishable from the present circumstances.
[43] Staff Sergeant Gillis was not compelled to attend court solely for the purpose of having his voice recorded. He was compelled to attend court to give substantive testimony regarding the matters at issue on the voir dire, and his voice was to be recorded in any event. It was agreed that he would be asked to read the words of the anonymous caller into the record. It was agreed that the pre-trial application judge would himself compare Staff Sergeant Gillis's voice with the record of the anonymous caller's voice and, although the Crown resisted, the pre-trial application judge ruled that it was appropriate for him to listen to the court recording of Staff Sergeant Gillis's voice for purposes of making that comparison.[4] It is implicit in the way the matter unfolded that the Crown accepted the defence voice identification expert's utilizing of the court's recording of Staff Sergeant Gillis's voice for purposes of his analysis.
[44] The only issue at this stage was whether Staff Sergeant Gillis's voice would be recorded only on the lower-quality audio device utilized by the court or, in addition, by a high-quality microphone utilized by the defence and whether the court had the authority to permit the latter to occur. There would be no additional intrusion or infringement upon the witness's privacy or security rights. Indeed, if, for whatever reason, the audio recording equipment utilized by the Court at the time had been of a higher quality, there would be no issue at all.
[45] This is materially different from the factual situation facing this Court in Karimi, where the issue was whether s. 683(1) of the Criminal Code permitted the appeal court to compel a witness to attend for the sole purpose of providing a voice sample. The Court was not asked to, and did not, consider the impact of s. 136 of the Courts of Justice Act, or the question of inherent jurisdiction/implied power, or whether an accused's right to make full answer and defence was engaged.
The Superior Court's Authority
[46] In my opinion, as a Superior Court judge, the pre-trial application judge had the discretionary authority to permit Staff Sergeant Gillis's testimony to be recorded on a high-quality microphone pursuant to s. 136(3) of the Courts of Justice Act but, if not, then pursuant to the Superior Court's inherent jurisdiction. This conclusion is reinforced by the principles underlying the appellant's right to a fair trial and to make full answer and defence in the circumstances.
Section 136(3)
[47] Much of the debate on the appeal centred on the application of s. 136(3). Sections 136(1) and (3) of the Act state in their material respects that:
(1) Subject to subsections (2) and (3), no person shall,
(a) take or attempt to take a photograph, motion picture, audio recording or other record capable of producing visual or aural representations by electronic means or otherwise,
(i) at a court hearing;
(3) Subsection (1) does not apply to a photograph, motion picture, audio recording or record made with authorization of the judge,
(a) where required for the presentation of evidence or the making of a record or for any other purpose of the court hearing;
[48] Mr. Addario contends that the pre-trial application judge had the authority to make the order sought pursuant to subsection (3). He argues that the recording of Staff Sergeant Gillis's voice with a high-quality microphone was required "for the presentation of evidence" at the hearing or, if not, is encompassed by the broader expression "for any other purpose of the court hearing".
[49] Emphasizing an accused's right to make full answer and defence, he submits that the high-quality recording was "required" to enable the appellant to exercise that right by getting to the truth about whether Staff Sergeant Gillis was the anonymous caller. As he sees it, the case turns on an important question: did a police officer make an anonymous call to police to report a fake break-in so that first responders could make, and justify, a warrantless entry and discover drugs in the appellant's house? The identity of the anonymous caller is central to the appellant's defence.
[50] For the Crown's part, Mr. Devlin casts the issue in a different light. He submits the appeal turns on a proper assessment of the court's role in the exercise of its independent adjudicative function. That role is to consider, receive and decide upon evidence, not to become a party to its creation. Turning the witness box into a venue for the collection of bodily samples (i.e., the witness's voice) for the purposes of an out-of-court forensic analysis, he submits, is a misuse of the witness box and of the court's adjudicative role.
[51] In fairness to the pre-trial application judge, s. 136 does not appear to have been brought to his attention during argument. Nonetheless, it provides the court with discretionary authority to make the order sought by the appellant, in my view.
[52] What is "required for the presentation of evidence" or "for any other purpose of the court hearing" will depend upon the circumstances of the particular case. As this Court observed in R. v. N.S., 2010 ONCA 670, aff'd 2012 SCC 72, at para. 16, "[s. 136] requires a case-specific analysis". The section is to be given "such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit": Interpretation Act, s. 10, as cited in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at p. 41. Context is important in this respect. In Ontario (Minister of Transport) v. Ryder Truck Rental Canada Ltd., 47 O.R. (3d) 171 (C.A.), at para. 11, this Court said:
The modern approach to statutory interpretation calls on the court to interpret a legislative provision in its total context.… The court's interpretation should comply with the legislative text, promote the legislative purpose, reflect the legislature's intent, and produce a reasonable and just meaning. [Footnotes omitted.]
[53] Section 136 is the descendant of s. 67 of the Judicature Act, R.S.O. 1980, c. 223, which introduced a prohibition against televising or photographing court proceedings or persons entering or leaving a courtroom. Its objectives were the maintenance of order and decorum in the courtroom and courthouse and the protection of unimpeded access to and from the courtroom by participants in court proceedings: R. v. Squires, 11 O.R. (3d) 385 (C.A.), leave to appeal refused, [1993] S.C.C.A. No. 57, at p. 393. Section 136 has been expanded to prohibit unauthorized audio recordings of court proceedings, but the meaning and scope of the section is not otherwise changed: see Garry D. Watson & Michael McGowan, Ontario Civil Practice 2017 (Toronto: Carswell, 2016), at p. 244. Subsection 136(3) provides for the authorized exceptions to the prohibition.
[54] With these considerations in mind, I turn to the application of the authorized-exceptions provision to the circumstances of this case.
[55] I observe initially that what the appellant was requesting has little to do with the objectives the legislature was seeking to accomplish in enacting the prohibition against audio and video recording in the courtroom. The appellant's request does not touch the notion of maintaining order and decorum in, or the objective of ensuring unimpeded access to, the courtroom one way or the other. The foregoing considerations lead as well to the reasoning that the authorized exceptions to the prohibition should be interpreted liberally to enable the court to allow what would otherwise be permissible – were it not for the prohibition and depending on the circumstances of the particular case – in order to advance the ultimate goal, which is to further the fair administration of justice, including the fairness of the trial. In this way, a "reasonable and just meaning" of s. 136(3) is better achieved, in my opinion.
[56] Given the accepted approach to statutory interpretation, the intention of the legislature and the objectives of subsections 136(1) and (3), I do not think it is helpful to draw the bright line Crown counsel seeks to draw between recording court testimony for the purposes of "record making" (a permitted purpose), and recording or "creating" testimony for purposes of "forensic sampling" (an impermissible purpose, according to the Crown).
[57] First, I do not see that as a distinction to be drawn in these circumstances. As noted above, Staff Sergeant Gillis's testimony was not being recorded or created, nor was he compelled to testify, at the voir dire for the purpose of making a voice sample that would be subjected to forensic analysis. He was already properly compelled to testify at the voir dire because he had relevant evidence to provide with respect to material matters in issue. His voice was to be recorded in any event.
[58] Secondly, I see no reason why the recording of viva voce testimony for the purposes of making a court record, and the recording of testimony which may at the same time serve the collateral purpose of enabling that testimony to be examined forensically, need be mutually exclusive. Simply because the court's role traditionally is to receive evidence tendered by the parties, and to evaluate that evidence, it does not follow that what happens in the courtroom – including the giving of viva voce testimony – cannot be utilized for a legitimate, albeit collateral, purpose. Nor does it follow that a Superior Court is powerless to facilitate that process where it can be done without infringing the witness's or the accused's Charter rights, and the fair administration of justice is advanced by doing so.
[59] Trial courts make orders from time to time for the non-standard recording of testimony or to provide some other direction to a witness involving the utilization of the witness's physical characteristics in a manner that is not limited to "making" the record. Witnesses have been asked to roll up their sleeves to reveal distinctive tattoos that go to identity, for example: see R. v. Wilton, 2012 SKQB 536, at para. 28, aff'd 2016 SKCA 131; R. v. Hanoski, 2011 ABPC 246, at paras. 37-38. In N.S., this Court accepted that a preliminary inquiry judge could consider ordering the testimony of a witness wearing a niqab to be video-taped under s. 136, provided such an order was warranted on "a case-specific analysis": para. 16. In the "Bandidos" prosecution, the preliminary inquiry judge ordered a video recording of the testimony of a Crown witness pursuant to s. 136, to preserve the evidence of hand signals, which the defence would later use to impeach the witness's credibility: R. v. Sandham et al. (18 January 2007), London, 06/3079 (Ont. C.J.). See also R. v. Boyce, 248 C.C.C. (3d) 403, at para. 17.
[60] Crown counsel seeks to distinguish these examples. He submits they engage the preservation of testimony as part of the court's record-making function (fleet hand signals in Sandham for purposes of later impeachment, and the witness's demeanour in N.S. for purposes of later court review), or the receipt of direct evidence akin to the witness being asked to speak or read specific words (the tattoo cases), and do not involve the creation of evidence for the purpose of forensic bodily sampling. I am not persuaded by these distinctions.
[61] The Crown does not dispute that Staff Sergeant Gillis was properly before the court to testify on relevant matters at the voir dire. It follows that his testimony was not being "made" or "created" for the purpose of providing a bodily sample for forensic analysis. That the characteristics of his voice might or might not provide support for the defence's evolving theory, depending upon a voice identification analysis, was entirely incidental to that properly compelled inquiry.
[62] Nor does the Crown contest that defence counsel was entitled to ask Staff Sergeant Gillis to read the text of the anonymous phone call into the record. Indeed, the Crown does not even contest that the appellant's voice identification expert was permitted to utilize the lower-quality recording of Staff Sergeant Gillis's voice for purposes of his forensic analysis. In effect, the Crown only contests the court's authority to substitute one technology for another in relation to how his voice was recorded.[5]
[63] The rights of an accused should not turn on the particular level of technology utilized by the court, in my view. If it is permissible for an expert to listen to the court recording of a witness's testimony for purposes of subjecting it to a voice identification comparison with another voice on another recording – as the Crown acknowledges – it should not become impermissible to do so simply because of a difference in the quality of the recording device used to record that testimony. To the extent the giving of testimony in these circumstances may amount to the provision of a bodily sample for the purposes of forensic testing – as the Crown puts it – the sample is being provided in any event.
[64] I see no material difference between the appellant's situation here and one in which the court varies the technology by which the demeanour of the witness wearing a niqab may be assessed or the witness's hand signals in the Bandidos case utilized, that is, by upgrading the record from a simple voice recording to include a video recording that features both voice and visual images. Similarly, I see no material difference between the present situation and one in which the court directs a witness to adjust his or her clothing, or move his or her body in a particular way, to reveal an identifying feature such as a tattoo. In each of these examples, the testimony is made available, or the witness's other physical characteristics displayed, in a manner that may be used by the defence or Crown in a way that may, or may not, advance their interests, but that would not have been open to them had the court not intervened and provided for a non-standard recording or presentation of the witness's testimony.
[65] There can be little question that a court would have the power, for example, to permit an expert sitting in the courtroom to move to a particular position in the body of the courtroom where the expert would be better able to hear and observe a witness whose testimony was important to the expert's analysis, whether the evidence was important for its substantive content or for the physical characteristics it displayed. No one would suggest in such a scenario that the witness was being compelled to provide a bodily sample of his or her voice or other physical characteristic for forensic analysis purposes.
[66] Suppose, as another example, that the meaning of a particular tattoo was significant in a case because it might identify whether a person was or was not associated with a particular gang.[6] And suppose a witness were testifying and maintained that he or she was not a member of a certain gang. But counsel in the course of cross-examination noticed a portion of a tattoo appearing under the witness's short-sleeved shirt. If the court has the authority to cause the witness to lift up that sleeve so that those in the court can better observe the tattoo, would the court not be entitled, equally, to cause the witness to turn in a manner that would enable counsel's expert in the courtroom to observe the tattoo for purposes of forming an opinion about whether it signalled membership in the gang? In my opinion, it would.
[67] The words "required for the presentation of evidence … or for any other purpose of the court hearing" are to be given a liberal, purposive and contextual interpretation. As applied in these circumstances, I would not restrict them in the narrow fashion the Crown proposes. Had that been the intention of the legislature, it would not have been necessary to add, in the middle of the s. 136(3) exemptions to the s. 136(1) prohibition, the words "or the making of a record". The fact that "the making of a record" is sandwiched between the expressions "required for the presentation of evidence" and "for any other purpose of the hearing" signals that the legislature intended a judge's power under s. 136(3)(a) to authorize the making of an audio recording of what transpires in the courtroom to be broader than simply the "preservation" or "making" of a record. This reinforces a broader interpretation of the judge's authority under s. 136(3)(a).
[68] The primary purpose of a court hearing is to provide an open and fair trial. An accused's Charter right to make full answer and defence is an essential ingredient to ensure that end and informs the interpretation of s. 136(1) as well.
[69] Here, the appellant had raised a credible basis for pursuing his theory that Staff Sergeant Gillis had made the anonymous phone call and that he, or his team, had been responsible for the break-in at 76 Red Ash Drive. Of course, nothing said in these reasons is to suggest that the appellant has made out that case, or even that it will be made out eventually. But the appellant led sufficient evidence to persuade the pre-trial application judge that:
(i) there was good reason to be suspicious about the anonymous phone call (including the fact that the caller used a blocked number, did not identify himself, hung up abruptly, called the non-emergency line which enabled him to block the call and to hang up and not be traced, took 15 minutes to report the break-in, and declined to provide any information about the direction taken by the supposedly fleeing culprits);
(ii) the call was not made by an honest, concerned citizen who had witnessed the break-in (if not by a concerned citizen then by whom, in these circumstances, one might ask?);
(iii) Staff Sergeant Gillis had the ability to conduct a covert entry and make it look like a break-in, and indeed had done so in the course of Project Gladiator pursuant to the sneak and peek warrant;
(iv) he might well have had an interest in gaining access to 76 Red Ash Drive (motive);
(v) his explanation for having listened to the police tape of the anonymous call in advance of the hearing was "unpersuasive";
(vi) there were reasons to be suspicious of Staff Sergeant Gillis, and it was reasonable to question whether he was the anonymous caller;
(vii) there were parts of the anonymous call where the caller sounded as if he might have been trying to disguise his voice; and,
(viii) there was some similarity between Staff Sergeant Gillis's voice as recorded in testimony and the voice of the anonymous caller on the police recording (albeit some significant differences as well, as he judged the comparison).
[70] Although the pre-trial application judge concluded that "there [were] reasons to be suspicious of Gillis" (para. 132), he ultimately found that the evidence fell short of satisfying him that a member of the Durham Regional Police was responsible for the break-in and subsequent phone call. Significantly, in arriving at that finding, he acknowledged that he was hampered in his attempts to compare Staff Sergeant Gillis's voice, as recorded on the court's lower-quality recording, with the voice of the anonymous caller, as recorded on the higher-quality police recording, by "the limitations of voice comparison for someone who is not trained in voice identification" (para. 130). The appellant had been deprived of the ability to assist him with the evidence of an expert trained in voice comparison, however, by the decision to preclude the recording of Staff Sergeant Gillis's testimony on a high-quality microphone.
[71] The pre-trial application judge rejected the appellant's submission that the court's power to make the order sought was inherent in the appellant's right to make full answer and defence. He concluded that, while the appellant was not seeking an order that the Crown pursue a defence investigative request he was, in effect, asking the court to participate in and support such an investigation (para. 38). Just as an accused does not have a constitutional right to direct the conduct of a criminal investigation or to "conscript the police to undertake investigatory work for the accused" – see R. v. Darwish, 2010 ONCA 124, 100 O.R. (3d) 579, leave to appeal refused, [2010] S.C.C.A. No. 124 – it cannot, in effect, conscript the court to do the same thing.
[72] In my view, that is not what the appellant was requesting, however. Conscripting the court to do something, or utilizing a court hearing for an extraneous purpose, is one thing. Asking the court to permit the defence to utilize a better piece of technology than that provided by the court to record testimony that is being given in any event, and which the defence is admittedly entitled to analyze using the lower level of technology provided by the court in any event, is something else.
[73] The right to make full answer and defence is a central constitutional right. The manner in which it is pursued can vary in an infinite variety of ways and on a case-by-case basis. In N.S., at para. 50, Doherty J.A. emphasized the importance of full answer and defence to a fair trial from the perspective of both the accused and broader societal interests:
Full answer and defence is, in turn, a crucial component of a fair trial, a constitutionally protected right and the ultimate goal of the criminal process. Trial fairness is not measured exclusively from the accused's perspective but also takes account of broader societal interests. Those broader interests place a premium on a process that achieves accurate and reliable verdicts in a manner that respects the rights and dignity of all participants in the process, including, but not limited to, the accused. [Citations omitted].
[74] Here, whether the appellant's request is regarded as a component of his right to make full answer and defence, or whether the right to make full answer and defence in these circumstances is considered as a Charter right informing a broad and liberal interpretation of s. 136(3), the result is the same.
[75] The court must be careful not to overstep the bounds of its adjudicative role. But where the interests of the administration of justice in ensuring the fairness of a trial – "the ultimate goal of the criminal process" – and an accused's right to make full answer and defence call for it, a Superior Court judge can act under s. 136(3) (or, as I shall explain, pursuant to his or her inherent jurisdiction) to advance those important ends.
[76] I turn, then, to the issue of a Superior Court's inherent jurisdiction.
Inherent Jurisdiction
[77] In Endean v. British Columbia, 2016 SCC 42, [2016] 2 S.C.R. 162, at para. 24, Cromwell J. referred to the inherent jurisdiction of a Superior Court as an "important but murky pool of residual authority" and cautioned that it was important to determine first the scope of express grants of statutory authority before dipping into that pool. Having concluded that the pre-trial application judge had the authority under s. 136(3) of the Courts of Justice Act to permit the appellant to utilize a high-quality microphone to record Staff Sergeant Gillis's testimony, it is strictly unnecessary for purposes of this appeal, therefore, to consider whether, absent that statutory power, he had the authority to do so pursuant to his inherent jurisdiction.
[78] That said, in the event I am wrong in my interpretation of s. 136(3), I would add that, in my view, the pre-trial application judge's authority to make the order sought could be founded on his inherent jurisdiction as a Superior Court judge.
[79] Cromwell J. defined inherent jurisdiction in Endean, at para. 23, as:
[A] "reserve or fund of powers" or a "residual source of powers", which a superior court "may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them": I.H. Jacob, "The Inherent Jurisdiction of the Court" (1970), 23 Curr. Legal Probs. 23, at p. 51, cited with approval in, e.g., Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 20; R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78, at para. 24; and MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, at paras. 29-31.
[80] I accept, as Cromwell J. reiterated, at para. 24, that "given the broad and loosely defined nature of these powers, they should be 'exercised sparingly and with caution': Caron, at para. 30." However, as I have explained above, the appellant had provided an evidentiary basis on the record before the pre-trial application judge that lent a credible air of reality to his theory that Staff Sergeant Gillis had made the anonymous call and that he, or his team, had been responsible for the break-in at 76 Red Ash Drive. That evidentiary basis is summarized above, at paras. 69 and 70 of these reasons. Without repeating those factors here, I am satisfied, in the absence of counteracting evidence from the Crown, that the circumstances of this case would be sufficient to warrant the judge drawing upon his inherent jurisdiction – had it been necessary to do so – in order "to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them" (emphasis added).
[81] The case before us involves the exercise of power by a Superior Court judge. As some of the examples referred to earlier in these reasons illustrate, however, a judge presiding in a statutory court would have similar authority to make the order requested pursuant to the implied powers of such a court to control its own process in order to administer justice fully and effectively. See Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 112 (per Fish J. in dissent, but not on this point); R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at paras. 18-19; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at paras. 70-71.
[82] I conclude, therefore, that the pre-trial application judge had the authority to make the order requested either pursuant to his powers under s. 136(3) of the Courts of Justice Act, or, if not, pursuant to the inherent jurisdiction of a Superior Court judge.
Who had the Burden of Proof with Respect to the Identity of the Anonymous Caller?
[83] The pre-trial application judge determined that the appellant bore the burden of establishing, on the balance of probabilities, that the original break-in was committed by an agent of the state, i.e., that it was Staff Sergeant Gillis who was responsible for the break-in and the anonymous telephone call. In doing so, he adopted an approach advanced neither by the Crown nor by the defence. He explained his approach in this fashion:
For the purposes of this application, I have concluded that it is not necessary for me to decide whether the implied invitation doctrine can apply to an entry into residential premises which are not open to the public. This is because I disagree with the basic premise for both Crown and defence positions; they have proceeded on the assumption that the initial break and enter underlies and is associated with the initial entry by the York Regional Police, such that the burden of proof relating to the initial break and enter is to be determined by reference to the burden of proof associated with the initial entry by the York Regional Police in response to the anonymous telephone call.
I have concluded that the appropriate approach in this case is to consider each of the three entries on to the property separately and to determine whether in any of the three situations there has been a s. 8 violation. Each incident must be judged independently from the others and the burden of proof is not necessarily the same for each. If there has been a s. 8 violation for any of the three entries, the next step is to consider the appropriate remedy under s. 24(2). The three known entries or searches in this case are the initial break and enter, the entry by the police in response to the anonymous telephone call and the subsequent search by the police and seizure of the drugs in accordance with the search warrant.
[84] Respectfully, the pre-trial application judge erred in adopting this approach. The Crown and defence were correct in proceeding on the premise that the initial break-in underlies and is associated with the warrantless entry by the York Regional Police.
[85] By dissecting the events into three separate entries – rather than examining the circumstances surrounding the warrantless entry by the police and the anonymous call and allegedly fake break-in, as a whole – and then assessing where the burden lay in the case of each entry, the pre-trial application judge effectively transferred the overall persuasive burden of proof to the appellant, requiring him to establish that the warrantless search was not justified. Even though there is a general burden on an accused to persuade the court that his or her Charter rights have been infringed, once it is established that a search was a warrantless search – as the entry of the York Regional Police was, admittedly, here – the jurisprudence provides that the onus shifts to the Crown to justify the entry. See R. v. Collins, [1987] 1 S.C.R. 265, at pp. 277-278.
[86] The initial entry involving the break-in and the York Regional Police entry are inextricably intertwined in the circumstances. The warrantless entry could not be justified (whatever the reasonable belief of the YRP officers and the circumstances confronting them on their arrival) if it had been triggered by an unlawful ruse carried out by state actors in the first place. The Crown does not dispute this. To hold otherwise – as the appellant points out – would be to permit the police to Charter-proof their conduct from constitutional scrutiny by the simple expedient of having one officer trick another into making a warrantless entry, on the theory that the blamelessness of the "dupe" officer would insulate the conduct from attack. For this reason, in my opinion, the two entries – the allegedly fake break-in and subsequent anonymous phone call, and the responding entry by the York Regional Police – are part of a single integrated chain of events that should not be considered, in silo fashion, as two independent and separate events.
[87] Considering the two entries as a whole, the overall burden of persuasion rests with the Crown to justify the entry and the police conduct associated with it. That said, there is an evidentiary burden to be met by the appellant in the circumstances. The evidentiary burden required the appellant to lead evidence demonstrating a credible "air of reality" to the allegation that a state agent, Staff Sergeant Gillis, made the anonymous call and that he or his team was responsible for the initial break-in. For the reasons set out at paragraphs 69-70 above, the appellant succeeded in doing just that. The onus must then shift back to the Crown to counter the credible evidence led by the accused and to meet its ultimate persuasive burden of satisfying the court, on a balance of probabilities, that the police entry was justified.
[88] But the Crown led no such counter-evidence, although it was within the Crown's own particular knowledge and power to do so, if such evidence existed. It was content to stand by Staff Sergeant Gillis's strong denial that he was the anonymous caller or that he or his team had staged the break-in.
[89] Indeed, in the face of the preliminary foundation laid by the appellant, the Crown remained passive. Although requested by the appellant to do so, it did not provide Staff Sergeant Gillis's cell phone records, which the pre-trial application judge observed "would have been very helpful evidence". The appellant argued that, since Staff Sergeant Gillis acknowledged he did not have a personal cell phone and only used his Durham Regional Police cell phone, his phone records would have shown whether he did or did not make the anonymous call to the non-emergency line on the morning in question. Although requested by the appellant to do so, the Crown also did not provide information respecting Staff Sergeant Gillis's whereabouts which, the appellant argued, may have shown whether he was or was not near 76 Red Ash Drive on the morning in question.
[90] It is evident from a review of the pre-trial application judge's reasons on the Charter application that the question of who bore the onus of establishing that it was Staff Sergeant Gillis who made the anonymous call and instigated the break-in, was important to the pre-trial application judge's analysis. Had he approached his analysis from the perspective of a Crown onus, he may or may not have decided that the evidence fell short of satisfying him on a balance of probabilities that the Crown had justified the warrantless entry, instead of concluding, as he did, that the evidence "[fell] short of satisfying [him] on a balance of probabilities that [Staff Sergeant Gillis] or any other member of the Durham Regional Police was responsible for the break-in at 76 Red Ash and the subsequent call to the York Regional Police".
[91] The pre-trial application judge having applied an incorrect onus, a new trial is required to resolve that question.
Disposition
[92] For all the foregoing reasons, I would allow the appeal, set aside the convictions, and order a new trial.
Released: May 30, 2017
R.A. Blair J.A.
I agree Doherty J.A.
I agree P. Lauwers J.A.
Footnotes
[1] Although the appeal is from the convictions registered by Justice Glass with a jury, the appellant takes no issue with the conduct of the trial by Glass J. The issues on the appeal arise from rulings made on pre-trial Charter applications heard by Justice Michael K. McKelvey.
[2] As explained by Mr. Addario in his factum, spectrographic voice analysis involves separating the vocal sound into its underlying components and then representing each of those components on a graph as a function of time. The voice is analyzed not by listening to it, but by reading the computer-generated graph of the vocal components. The precision of the analysis depends, amongst other things, on the ability of the microphone to capture the full range of vocal sounds in an undistorted fashion.
[3] Staff Sergeant Gillis explained that he did not feel he could pursue the defence request because he was under cross-examination at the time and therefore prohibited from communicating with the Crown.
[4] The Crown does not contest that ruling on appeal.
[5] The Crown may well contest the reliability and admissibility of the expert's opinion, but that is for a different time.
[6] See R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, where a teardrop tattoo inscribed on the accused's face was alleged to have certain potential meanings in urban street gang culture.
