Her Majesty the Queen v. Durant

[Indexed as: R. v. Durant]

Ontario Reports

Court of Appeal for Ontario

Watt, Huscroft and Trotter JJ.A.

February 4, 2019

144 O.R. (3d) 465 | 2019 ONCA 74

Case Summary

Charter of Rights and Freedoms — Search and seizure — Interception of private communications — Police violating accused's rights under s. 8 of Charter by failing to comply with live monitoring condition in wiretap authorization — Trial judge reasonably finding that violation was serious but that it did not have significant impact on accused's Charter-protected interests — Trial judge not erring in declining to exclude wiretap evidence under s. 24(2) of Charter — Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

Criminal law — Charge to jury — Included offences — Accused convicted of first degree murder — Accused denying that he had anything to do with victim's death — Accused's wife testifying that accused told her that he killed victim when she came at him with hammer — Trial judge erring in declining to leave manslaughter with jury as included offence.

Criminal law — Evidence — Similar act evidence — Bodies of two sex trade workers found in different locations in Niagara Region 29 months apart — Both victims dying of blunt-force trauma to head — Blood of both victims found in accused's residence — Accused charged with two counts of first degree murder — Trial judge erring in admitting evidence on one count as similar act evidence on other count and in failing to sever counts — Circumstances of two offences not strikingly similar and not displaying unique trademark or signature.

Criminal law — Trial — Jury trial — Discharge of juror — Accused convicted of first degree murder — Trial judge erring in declining to discharge juror who was acquaintance of victim's stepmother.

Facts

The accused was charged with two counts of first degree murder. The bodies of two sex trade workers, D.D. and C.C., were found in different locations in the Niagara Region 29 months apart. The bodies were clothed. The victims had both recently used cocaine and both died of blunt-force trauma to the head. The blood of each victim was found in a residence occupied by the accused. The trial judge allowed the Crown's application to have the evidence on each count applied to the other, and dismissed applications by the accused to sever the counts. Less than two hours into the evidentiary part of the trial, the Crown learned that W.K., C.C.'s step-mother, knew one of the jurors. The trial judge conducted an inquiry during which the juror said that he had not known of W.K.'s connection to the trial and had not known her last name. He said she had been at his house about three times, but he had not seen her for a year. W.K. said that she and the juror had mutual friends and used to "hang out" together and had been to each other's homes. She said they had not seen him for about a year. Both Crown and defence counsel agreed that the jury should be excused. The trial judge refused to dismiss the juror. The accused was convicted. He appealed.

Decision

Held, the appeal should be allowed.

The trial judge erred in admitting the evidence on each count as evidence of a similar act on the other count and in failing to order a separate trial for each count. When the issue on which the evidence is offered is identity, the acts must be strikingly similar. When assessing similarity, the key is the manner in which the acts were committed, not the evidence linking the accused to the act. The similarity between or among acts must be so unique that common sense makes it inexplicable on the basis of coincidence. That significant degree of similarity which renders coincidence improbable may be established by some unique trademark or signature or by a series of significant similarities between the proposed evidence and the offence for which it is offered as proof. Although the trial judge articulated the correct standard, he erred in three respects and therefore reached an unreasonable conclusion. First, the trial judge failed to appreciate that what was being offered as evidence of a similar act was evidence of a single incident separated by more than two years from the offence on which it was offered as proof, lacking any signature feature, and with only a few generic similarities falling well short of what was required. Second, he also appeared to have misapprehended the impact of C.C.'s bloodstains found in the accused's residence. Those bloodstains, which consisted of a few droplets, could not be dated and were not consistent with the amount of blood that would be expected if she had been killed there. Third, he misused the evidence linking the accused to conduct when assessing similarity: it is the acts that must be similar, not the actor.

This was a close case on the issue of joinder. Apart from the fact that the accused was charged with both murders, there was neither a factual nor legal connection between them. The accused had plausibly argued that he wanted to testify at the trial relating to D.D. but not C.C. The evidence in the murder of D.D. was significantly stronger, which increased the risk of moral prejudice in the absence of similar acts. The trial judge's erroneous conclusion on similar act was a controlling factor in the assessment of severance and once that factor was removed the result should have been severance of the counts, not joinder.

The trial judge erred in declining to discharge a juror who was an acquaintance of C.C.'s stepmother. C.C.'s stepmother was a potential Crown witness who had vigorously advocated against what she considered unfair treatment of sex trade workers by the justice system. Crown and defence counsel argued that juror should be discharged. The trial judge failed to give appropriate consideration to the importance of the appearance of fairness in deciding the suitability of the juror to continue.

The trial judge erred in declining to accede to a defence request to leave manslaughter with the jury as an included offence in relation to D.D.'s death. While the accused denied having anything to do with D.D.'s death, the accused's wife testified that the accused told her that he hit D.D. when she tried to steal his cocaine, knocking her unconscious, and then struck her a fatal blow when she regained consciousness and came at him with a hammer. Whether an instruction on an included offence is required is not determined by the fact or extent of any inconsistency between the principal defence advanced and the findings necessary for the included offence. The narrative given by the accused's wife provided an air of reality to the instruction sought.

The police violated the accused's rights under s. 8 of the Canadian Charter of Rights and Freedoms by failing to comply with a live monitoring condition in a wiretap authorization. However, the trial judge reasonably found that the police conduct, while serious, had a minimal impact on the accused's Charter-protected interests. The infringement consisted of imperfect compliance with a term of a facially valid authorization and renewal. The error was a failure to listen while recording, not an error in recording something that investigators were not permitted to record. The trial judge did not err in declining to exclude wiretap evidence under s. 24(2) of the Charter.

Cases Referred To

D.P.P. v. Boardman, [1975] A.C. 421; R. v. Andrews; R. v. Arp; R. v. B. (C.R.); R. v. Betker; R. v. Cinous, 2002 SCC 29; R. v. Corbett; R. v. Cunningham, 2012 BCCA 76; R. v. Doroslovac, 2012 ONCA 680; R. v. Dowholis, 2016 ONCA 801; R. v. Fontaine, 2004 SCC 27; R. v. Giroux; R. v. Handy, 2002 SCC 56; R. v. Hanna; R. v. Hubbert; R. v. Jeanvenne, 2010 ONCA 706; R. v. Last, 2009 SCC 45; R. c. Lessard; R. v. Luciano, 2011 ONCA 89; R. v. MacCormack, 2009 ONCA 72; R. v. Mayuran, 2012 SCC 31; R. v. Pappas, 2013 SCC 56; R. v. Perrier, 2004 SCC 56; R. v. S. (R.D.); R. v. Shearing, 2002 SCC 58; R. v. Sherratt; R. v. Spence, 2005 SCC 71; R. v. Steele, 2007 SCC 36; R. v. Suarez-Noa, 2017 ONCA 627; R. v. Tsoumas; R. v. Wolfe, 2005 BCCA 307; R. v. Woodcock.

Statutes Referred To

Canadian Charter of Rights and Freedoms, ss. 8, 24(2)

Criminal Code, R.S.C. 1985, c. C-46, Part VI, ss. 183, 184(1), (2)(b), 186(4)(d), 589, 591(1), (3)(a), 638(1)(b), 644(1)

Appeal

APPEAL by the accused from the conviction entered by Ramsay J. of the Superior Court of Justice, sitting with a jury, on November 28, 2012.

Michael Durant, acting in person (C56370).

Michael W. Lacy and Bradley J. Greenshields, for appellant (C56725).

Tracy Kozlowski and Dena Bonnet, for respondent.

The judgment of the court was delivered by

WATT J.A.

The Background Facts

A Thumbnail Sketch

[1] First, Welland. Then, Niagara Falls. Twenty-nine months apart. Two bodies. And some common features.

[2] Both victims were female, their bodies fully clothed except for their shoes. Both died of blunt force trauma to their head. Both had used cocaine shortly before they died. Both were involved in the sex trade.

[3] Both victims were connected to the residences of the same man. Each had shed blood in one of them. In the residences of Michael Durant.

[4] Police charged Michael Durant with two counts of first degree murder arising out of the deaths of these two women, D.D. and C.C. The counts were tried together. A jury deliberated for seven days before finding Michael Durant guilty of both counts of first degree murder.

[5] Michael Durant appeals his convictions. He says that the trial judge made several errors in his conduct of the trial. These reasons explain why I agree that the convictions cannot stand and that separate new trials are necessary on each count of the indictment.

[6] Michael Durant also seeks leave to appeal against sentence, without the assistance of counsel, even though the sentence is one fixed by law. Because of my conclusion on the conviction appeal, I will not discuss the sentence appeal.

The Killing of D.D.

[7] A thumbnail sketch of the evidence adduced at trial will provide the background essential to an understanding of the issues raised on appeal. Further details can await discussion of the individual grounds of appeal, which follows.

[8] D.D. was 32 years old when she was killed. She lived in the Niagara Falls area, struggled with an addiction to cocaine and supported herself by work in the sex trade. D.D. was killed sometime between sunset on August 4 and the early morning of August 7, 2003.

[9] D.D. died from blunt force trauma to the back of her head. She suffered three skull fractures. The fatal blow was consistent with having been struck by a hammer or a similar heavy weapon.

[10] D.D.'s body revealed no sign of defensive injuries, nor any evidence of sexual assault. She had consumed cocaine within 12 to 24 hours of her death. Her body was found in a ditch in Welland on August 9, 2003.

The Case for the Crown

[11] The case for the Crown consisted of the evidence of Dana Arnold, Michael Durant's ex-wife, who testified that she helped Durant hide the body of a woman he admitted to having hit over the head with a hammer in the garage of their home in August 2003.

[12] The Crown also relied on the testimony of several witnesses, including Michael Durant's siblings, his employer and police officers who told the jury about inculpatory things Durant had said to them or in their presence. In addition, there was evidence that Michael Durant had the opportunity to kill D.D. during the time period within which she was killed.

[13] Forensic identification officers found about 20 bloodstains on a chair in Michael Durant's garage. D.D. could not be excluded as the source of this blood.

The Defence Position

[14] Michael Durant did not testify. His defence was a denial of participation in the unlawful killing of D.D. He relied on what he contended were frailties in the case for the Crown, in particular, the unreliability of the evidence of his wife and that of others who testified about the inculpatory statements.

[15] Michael Durant also relied on the testimony of others about his various utterances and other evidence tending to point to two alternative suspects, John McNeil and Hoss Gallen. McNeil had died of a drug overdose in 2006. Gallen testified for the Crown. He denied any involvement and any association between McNeil and Durant.

The Killing of C.C.

[16] C.C. was 22 years old when she died. She used cocaine and worked in the sex trade. She was last seen on December 4, 2005, although some witnesses claimed to have seen her the following day. She was not reported missing until December 10, 2005.

[17] On January 24, 2006, C.C.'s body was found in a grassy wooded area near a hydro canal in Niagara Falls. The body was wrapped in two white bed sheets. Wrapped loosely about her neck was a multi-layered length of duct tape, with a second piece wrapped around her left ankle.

[18] C.C. died from blunt force injury to her head. She had suffered several lacerations and fractures to her face and scalp, as well as a fracture to the back of her head likely caused by a blunt force. At the time of her death, C.C. had a puncture wound in her left arm and was under the influence of cocaine. A single sperm cell was found in her mouth.

The Case for the Crown

[19] The Crown relied on the combined force of several items of evidence. These items included evidence that

(i) C.C. was in the company of Michael Durant when she was last seen alive;

(ii) Durant had access to vacant buildings in which he could have stored C.C.'s body before disposing of it, and to sheets of the kind found wrapped around and near her body;

(iii) three spatters of C.C.'s blood were found on the underside of risers on the stairs leading to the basement of Durant's home (at a different address from where the other bloodstains were found);

(iv) Michael Durant and a friend cleaned up the basement of Durant's home using muriatic acid on the floor and removed a wall;

(v) red fibres consistent with a velvety fabric such as corduroy or velour removed from clothing on C.C.'s body were similar in colour and texture to curtains missing from Durant's residence;

(vi) Michael Durant gave different accounts of his interaction with C.C. around the time she disappeared; and

(vii) in telephone calls with a friend, Michael Durant said that he wanted to recover some things from his house, including red curtains.

The Defence Position

[20] The defence contested the adequacy of the case for the Crown to meet the standard of proof required of it. According to the defence, the more reliable evidence was that C.C. was still alive on December 5, 2005. In addition, the blood spatter evidence was consistent with cast-off from intravenous injection of drugs, but not with a substantial blood-letting event such as the beating C.C. had suffered. Michael Durant was not the source of the DNA on the duct tape found on C.C.'s body. And the sheets in which C.C.'s body was wrapped were not distinctive and were available to others who had equivalent access to the unsecured buildings.

The Grounds of Appeal

[21] Michael Durant advances several grounds of appeal. He says that the trial judge erred in

(i) admitting the evidence on each count as evidence of a similar act on the other count and failing to order a separate trial on each count;

(ii) failing to discharge a juror acquainted with C.C.'s step-mother;

(iii) failing to leave manslaughter as an available verdict on the count relating to D.D.; and

(iv) admitting as evidence private communications of the appellant intercepted in breach of s. 8 of the Canadian Charter of Rights and Freedoms (the "Charter").

Ground #1: Evidence of Similar Acts and Severance of Counts

[22] This ground of appeal challenges the correctness of two related rulings made before the jury was selected.

[23] The first was an application by the Crown to have the evidence on each count applied to the other in accordance with the rule permitting, by exception, the admission of evidence of similar acts.

[24] The second involved an application by the appellant, renewed twice as the evidence unfolded at trial, for separate trials to be ordered on each count.

The Essential Background

[25] A helpful point of departure for the discussion that follows is a brief recital of the features identified by the trial judge as common to both counts. It was these features that led the trial judge to conclude that the degree of similarly required to admit this evidence to establish identity had been met.

Proximity in Time

[26] D.D. was last seen alive on August 3, 2003. Her body was found on August 9, 2003. She likely died between early morning on August 5 and early morning on August 7, 2003, but could have died as early as sunset on August 4, 2003.

[27] C.C. was last seen alive on December 4 or 5, 2005. Her body was found on January 24, 2006.

[28] The bodies of the deceased were found about 29.5 months apart. If C.C. had been killed on or about the date she was last seen, the killings were 28 months apart.

Proximity in Place

[29] Both deceased were found and apparently killed in Niagara Region. The body of D.D. was found in a ditch at the side of the road in a rural area of Welland. C.C.'s remains were located in a grassy, wooded area near a hydro access road in Niagara Falls. Nothing at either site indicated that they had been killed where their bodies were found.

[30] In each case, blood of the deceased was found at the appellant's home. In D.D.'s case, 20 small bloodstains were found on a chair in the garage of the house where the appellant lived with Dana Arnold at the time of D.D.'s killing. The bloodstains were found about 29 months after the deceased had disappeared and her body had been found. As for C.C., three small blood droplets were located on the underside of the risers on the basement stairs in a house where the appellant lived at the time of C.C.'s killing.

The Cause of Death

[31] Both deceased died from blunt force trauma.

[32] D.D. suffered blunt force trauma to the back of her head, including three skull fractures, one of which was depressed and consistent with a single blow inflicted by a hammer or some similar object. She also had a fractured left shoulder blade, an injury caused by being struck from behind. Her body revealed no sign of defensive injuries or of sexual assault. She had used cocaine within 12 hours of her death.

[33] C.C. had significant injuries to her face and head, including lacerations and fractures, from blunt force trauma. She had suffered at least 15 injuries. She died of blunt force injuries to her head and face. Duct tape had been wrapped around her mouth, neck and ankles. Her body was wrapped in two sheets. The wounds lacked any pattern indicative of the nature of the weapon used to inflict them. Cocaine was found in her body.

Disposal of the Body

[34] The body of D.D. was found within days of her death. She was fully clothed, except for her shoes. Her body had not been wrapped or otherwise covered.

[35] C.C.'s body was found fully clothed except for shoes and wrapped in sheets about seven weeks after she had been last seen alive. The sheets had the same markings as those found in a vacant and unsecured CTC store.

The Number of Occurrences

[36] This prosecution involved two occurrences more than two years apart.

Distinctive Features

[37] The deceased were a few years apart in age, both engaged in the sex trade and both were users of cocaine. No distinctive weapon was used in the fatal assaults, and one involved a significantly higher number of wounds than the other. Each deceased had ingested cocaine prior to death. The blood of each was found at the appellant's home.

Evidence Linking the Appellant and Deceased

[38] Evidence received at trial linked the appellant to each of the deceased at times reasonably proximate to the last time they were seen alive and, arguably, to the possible times and locations of the killings.

[39] The Crown contended that the appellant killed D.D. by hitting her on the head with a hammer after she had taken the last of his cocaine. In addition to the testimony of the appellant's wife reporting his account of the killing and their joint removal of the body, as well as the evidence of the appellant's utterances to others, the Crown pointed to evidence of 20 bloodstains containing the deceased's blood on a chair in the appellant's garage as evidence linking him to the murder of D.D.

[40] In connection with the killing of C.C., the case for the Crown was that, when last seen alive, C.C. was in the company of the appellant. She injected cocaine at his home. Three drops of her blood were found on the underside of the riser on the basement stairs. While admittedly these three drops were not consistent with the severe beating C.C. received, there was evidence that the appellant cleaned up his basement using muriatic acid, a liquid that degrades DNA. In addition, C.C.'s body was wrapped in sheets of the same manufacture as those found in the abandoned and unsecured CTC store to which the appellant had access. Fibres similar to those in red curtain material in the appellant's home adhered to C.C.'s clothing. The appellant's statements and telephone calls linked him to the killing.

The Rulings of the Trial Judge

[41] The trial judge gave separate rulings on the admissibility of the evidence of similar acts and on severance of counts. A brief reference to each will provide a foundation for the assessment of the claims of error advanced here.

The Ruling on Similar Acts

[42] The trial judge referred to the decisions in R. v. Arp, R. v. Woodcock, and R. v. MacCormack as expressing the controlling principles when determining the admissibility of evidence of similar acts tendered to establish the identity of an offender. The trial judge acknowledged that the evidence did not reveal any hallmark or signature common to both killings. On the other hand, he was satisfied that the evidence disclosed "a number of significant similarities" shared by the killings:

Are the offences so similar that it is probable that the same person committed both? There is no hallmark or signature. It is a question of whether the combined effect of a number of significant similarities justifies admission of the similar facts. The inquiry is a case-specific, highly individualized examination involving a consideration of all relevant factors including, but not limited to proximity in time and place, similarity in detail and circumstances, number of occurrences, any distinctive feature(s) unifying the various incidents, intervening events and any other factor that tends to support or rebut the underlying unity of the similar acts.

[43] In concluding that the evidence on one count was admissible to establish guilt on the other count, the trial judge explained:

To put it all together, I find that the significant similarities are the death of female prostitute who consumed cocaine with the accused at his residence before shedding blood there and being killed by blunt force trauma to the head, then dumped in the open on a rural road in Niagara, fully clothed except for shoes and personal effects. These similarities cause me to conclude that it is probable that the same person killed both victims. The dissimilarities in the time between death and disposal of the bodies are readily attributable to the greater availability of a place of cold storage in the winter, and the availability of a motor vehicle. A motor vehicle could be available to a person at some times in his life, but not so readily at other times. In my view, the dissimilarities do not significantly diminish the probative value of the evidence. The existence of an evidentiary link between the accused and each set of similar facts is admitted. Accordingly, the jury will be allowed to use the evidence on each count in deciding the other, subject to the instructions set out in the Arp case.

The Ruling on Severance

[44] After concluding that similar act principles warranted across-count admissibility of the evidence on each count, the trial judge turned to the motion for severance. He extracted his governing principles from the decisions in R. v. Jeanvenne and R. v. Last.

[45] In examining the evidence on each count, the trial judge accepted that, apart from the same person being charged with both counts, there was neither a factual nor a legal nexus between the counts, although both deceased were linked by bloodstains to the appellant's home. Severance would not make the trials complex although two trials would double the time required to complete proceedings. Separate trials would not risk inconsistent verdicts or involve antagonistic defences.

[46] The trial judge considered that the most influential factors informing his decision on severance were

(i) the appellant's asserted desire to testify on the count relating to D.D., but not on the count relating to C.C.;

(ii) prejudice; and

(iii) the interest in proceeding efficiently.

After acknowledging the objective plausibility of the appellant's claim to testify on the D.D. count but not on the C.C. count, the trial judge dismissed the application for severance in these terms:

That said, if he were not to testify at a separate trial of the [C.C.] murder, he would not be providing evidence to contradict the evidence of the wife and family members that tends to inculpate him in the similar fact [D.D.] murder. He would run a greater risk that the jury would find the necessary facts to enable them to use the [D.D.] murder as similar fact. I do not see much for the accused to lose by trying the counts together. I do not think that he would suffer prejudice. There would be a significant increase in court time taken up by multiple proceedings. In the result, I do not think that the interests of justice require severance. This does not preclude the defence from renewing the motion at the close of the Crown's case (or another appropriate time) if the evidence does not go as expected in some significant respect.

[47] Trial counsel renewed the severance application twice during the trial. The first occurred after a blood expert called by the Crown acknowledged that the stains of C.C.'s blood found on the riser could have originated from a needle used for intravenous drug injection. The second was an alternative to a mistrial application based on the trial Crown's suggestion in his closing address that the appellant killed the deceased because he hated sex trade workers.

[48] The trial judge dismissed both applications. He reasoned that the blood expert's testimony had not altered the evidentiary landscape significantly from the basis on which the original application had been decided. Any prejudice arising from the trial Crown's closing could be addressed by a specific admonition to the jury.

The Arguments on Appeal

[49] This ground of appeal requires consideration of both statutory provisions relating to joinder and severance of counts in an indictment and a common law rule of admissibility that is primarily exclusionary but not invariably so.

[50] The appellant begins with the statutory provisions about joinder of counts in an indictment. Section 591(1) of the Criminal Code sets out the general rule that any number of counts for any number of offences can be joined in the same indictment, provided the counts are distinguished as depicted in Form 4. But by its own terms, its introductory words, this rule is subject to an exception. And that exception is s. 589, a provision that applies when a count in an indictment charges an accused with murder.

[51] The appellant acknowledges that, by its express terms, s. 589 limits only the circumstances in which non-murder counts may be included in the same indictment as counts charging murder. On its face, the section does not bar inclusion of two or more counts of murder in the same indictment. But in Jeanvenne, this court made it clear that the test for severance in s. 591(3)(a) of the Criminal Code should be more stringently applied in favour of an accused where two or more counts charging murder are included in the same indictment. This is all the more so when the killings cannot meet the high threshold required to permit the introduction of evidence of similar acts across the counts to assist in proof of the identity of the killer.

[52] In cases such as this, the appellant continues, joinder excites a significant risk of serious prejudice. A jury, despite proper instruction, may have great difficulty segregating the evidence by count and refraining from following a path of seemingly logical but forbidden reasoning. The prospect of forbidden propensity reasoning approached near certainty in this case once the trial judge decided to admit the evidence of one count in the determination of guilt on the other.

[53] The appellant says that the trial judge erred in the manner in which he approached the admissibility issue as well as the conclusion he reached. And it was this erroneous conclusion that doomed the severance application to fail. There was simply no point to order separate trials if the same evidence was to be considered to determine guilt on each count.

[54] In this case, the controversial issue was the identity of the killer of C.C. and D.D. Where evidence of similar acts is tendered to prove identity, the conduct must meet a high standard of similarity, one of "striking similarity". The evidence in this case cannot ascend to that required level of similarity. There was nothing of a signature here. The only cogent commonality was the profile of the deceased and this was simply not good enough.

[55] Where evidence of similar acts is tendered to prove the identity of the person responsible for a crime, the admissibility inquiry must begin with a review (and comparison) of the manner in which the allegedly similar act was committed. This enables the trial judge to conclude whether the acts were likely committed by the same person, thus negating coincidence as an explanation for their occurrence. In this analysis or comparison, evidence linking the accused to these acts forms no part of this preliminary determination.

[56] It is only after the trial judge has considered the manner in which the alleged acts occurred (without reference to the accused's participation in those acts) and considered that the acts were likely committed by the same person that the judge may look to the evidence linking the accused to those acts in deciding on admissibility. To consider this "linkage" evidence at the first step is legally wrong. And that was what happened here.

[57] The appellant accepts than in exceptional cases linkage evidence may form part of the initial step of the admissibility analysis. But the exception is narrow and not established here, where the trial judge plainly relied on the place where the blood was found as dispositive of admissibility. Not only was this use of linkage evidence improper, but the probative value of it was significantly diminished when it became clear during the testimony of the bloodstain expert that

(i) the three droplets of C.C.'s blood were consistent with cast-off staining from intravenous drug ingestion;

(ii) no witness gave evidence about the circumstances of the killing, unlike in the case of D.D.;

(iii) the stains could not be dated; and

(iv) the injuries suffered by C.C. would likely have produced significant blood spatter, a circumstance belied by the evidence.

[58] In the end, the appellant says, the evidence falls well short of the "striking similarity" required in cases involving identity. There was but one allegedly similar act, a factor that significantly diminished the cogency of the evidence. The similarities were at best generic. Both deceased were sex trade workers addicted to cocaine, a drug found in their bodies. Each died of blunt force trauma inflicted by a blunt instrument without identifiable features. The circumstances in which the bodies were disposed of also differed, as did the time after death within which the bodies were dumped.

[59] The respondent begins with a reminder that the admissibility decision involves a balancing of probative value and prejudicial effect of the proposed evidence. This balancing is subject to deference in this court and is reviewable only where the trial judge's analysis is unreasonable, infected by legal error, or marred by misapprehension of material evidence. No case for interference has been made out here.

[60] The decision in Arp, the respondent contends, provides a suggested approach to determine admissibility, not a set of rigid rules or a formalized structure to be followed unwaveringly. The analysis requires consideration of all the circumstances to determine whether the "strikingly similar" standard has been satisfied. This degree of similarity may be established by a common unique feature, or a series of significant similarities leading to the conclusion that these were the product of common authorship not unlikely coincidence. Determining the admissibility of evidence of similar acts is not an exercise in forensic accounting to determine the net balance as between similarities and differences.

[61] In this case, the respondent continues, the trial judge did not determine admissibility solely on the basis of the characteristics of the deceased or the manner in which the offences were committed, rather considered all the circumstances. The "striking similarity" standard may be met by a common unique feature or, as here, by the cumulative effect of a series of significant similarities. The improbability that these similarities were the result of coincidence informs the probative value of the evidence, and thus its admissibility.

[62] Here, the trial judge's analysis of the admissibility issue extended beyond similarity between the deceased and proximity in time. This is as it should be. The trial judge considered, as he was permitted if not required to do, the circumstances surrounding or relating to the similar acts and distinctive features unifying the incidents which contributed to the factual nexus between the counts.

[63] The respondent says that the principled approach to the admissibility of similar acts must remain flexible. In this case, it was permissible to include in the catalogue of similarities the fact that each victim was last seen alive in the presence of the appellant, consumed cocaine and bled at his residence. In one sense this may be characterized as "linkage" evidence, but in another, as part of the factual matrix worthy of consideration on the "similarity" issue.

[64] In the end, the respondent submits, the admissibility of evidence of similar acts turns on the capacity of the evidence to negate the improbability of coincidence as an explanation for the offences. The impossibility of explaining the presence of the deceased's blood in his home, deposited around the time they disappeared, arises from the sheer improbability that these circumstances were the product of mere happenstance.

The Governing Principles

[65] This ground of appeal has two aspects. The first involves the joinder and severance of counts contained in an indictment and falls to be decided by the application of various provisions of the Criminal Code. The second has to do with a common law rule of admissibility, exclusionary by nature, but tolerant of an inclusionary exception which permits the reception of evidence of similar acts. The written submissions, as well as the oral argument, fastened predominantly on the admissibility issue as the principal determinant of the propriety of joinder and the necessity of severance.

The Joinder and Severance of Counts

[66] The Criminal Code governs joinder in severance of counts contained in an indictment. Some provisions are of general application, others more specific.

[67] Section 591(1) states the general rule for joinder of counts. The general rule is that any number of counts may be joined in the same indictment provided they are distinguished in the manner shown in Form 4. Nothing in the general rule permitting joinder of multiple counts distinguishes between counts charging only murder and counts charging only offences other than murder.

[68] By its opening words, the general rule of s. 591(1) is subservient to s. 589. In effect, s. 589 creates an exception to the general rule of s. 591(1) which permits joinder of any number of counts in the same indictment. This exception limits the circumstances in which counts charging offences other than murder may be included in the same indictment as counts charging murder. Joinder of non-murder and murder counts in the same indictment is only permitted where the non-murder counts arise out of the same transaction as the murder counts, or where the accused consents to the joinder.

[69] In combination, the application of s. 591(1) and the inapplicability of s. 589 permit joinder of multiple counts of murder in the same indictment, provided they are distinguished in the manner shown in Form 4.

[70] The Criminal Code also permits a trial judge to sever the trial of some counts in an indictment from the trial of one or more other counts charged in the same indictment. Section 591(3)(a) permits the trial judge to order that the accused be tried separately on one or more of the counts provided the judge concludes "that the interests of justice so require". Like the rule in s. 591(1) permitting joinder in the same indictment of "any number of counts for any number of offences", the authority to sever the trial of some counts from the trial of others in s. 591(3)(a) does not distinguish between indictments containing only counts charging murder and indictments containing only counts charging offences other than murder.

[71] Orders for severance of counts under s. 591(3)(a) are discretionary. They do not issue as of right. The section confers a discretion and sets a standard governing its exercise. To engage the discretion, the judge must be satisfied that "the interests of justice" require severance. But s. 591(3)(a) is unrevealing of the factors or considerations of which the judge may or must take account in deciding whether "the interests of justice" require severance.

[72] In general terms, the phrase "interests of justice" endeavours to balance an accused's interest in being tried on evidence properly admissible against him or her and society's interest that justice be done in a reasonably efficient and cost-effective manner.

[73] Over time courts have added content to the ubiquitous phrase "interests of justice" as it appears in s. 591(3)(a). They have done so by designating a number of factors as worthy of consideration in determining where the interests of justice lie in any factual matrix, but counselling against the dispositive influence of any specific factor. Illustrative of the factors are these:

(i) general prejudice to the accused as a result of the influence of the volume of evidence adduced and the effect of verdicts across counts;

(ii) the legal and factual nexus between or among counts;

(iii) the complexity of the evidence;

(iv) the desire of the accused to testify on one or more counts but not on another or others;

(v) the possibility of inconsistent verdicts;

(vi) the desire to avoid a multiplicity of proceedings;

(vii) the use of evidence of similar acts;

(viii) the length of trial;

(ix) prejudice to the accused's right to be tried within a reasonable time; and

(x) the existence or likelihood of antagonistic defences.

[74] Something should be said about some of the factors the authorities have identified as relevant considerations in determining whether severance should be granted.

[75] As a general rule, an accused's asserted desire to testify on one or more counts but not on another or others is accorded substantial weight in the severance analysis. But it must be more than a mere assertion. To give substance to the claim requires that there be some objective reality to it based on the evidence reasonably anticipated at trial. This factor is not dispositive and may be overpowered by other factors. Included among those countervailing factors is any significant disproportion in the strength of the Crown's case as between or among counts.

[76] Second, antagonistic defences. This factor or consideration is usually of greater significance in the joint trial of multiple accused rather than on the trial of a single accused on multiple counts. But it may also influence a severance decision when a single accused is presented for trial on an indictment containing multiple counts where the defences advanced for various counts differ.

[77] Third, the relationship between the propriety of joinder and the admissibility of evidence of similar acts across counts of a multi-account indictment. Where the evidence of similar acts is alleged to be evidence relating to other count or counts of a multi-count indictment, the trial judge will be required to consider the admissibility of the allegedly similar acts in deciding whether some counts should be severed from others. But admissibility and severance are different issues with different burdens of proof. Severance relates to the propriety of joinder and requires that the accused demonstrate, on a balance of probabilities, that the interests of justice requires severance. The reception of evidence of similar acts to be applied across counts is an issue of admissibility which requires the Crown to establish, also on a balance of probabilities, that the evidence ought to be admitted by exception to the general rule of exclusion. It does not follow that because the trial will proceed on a multi-count indictment that the evidence given on one count will apply to all other counts.

[78] A final point concerns the reviewability of decisions on severance.

[79] The discretionary nature of severance decisions has implications for appellate review of those decisions. Decisions on severance may be set aside on appellate review only where the appellate court is of the view that the decision is unjudicial or has resulted in an injustice. These grounds involve different inquiries. On an allegation that the decision was unjudicial, the court looks to the circumstances when the ruling was made to determine whether the decision was flawed by an error of law or principle or was unreasonable. In determining whether the ruling resulted in an injustice, the court looks at the entirety of how the trial and verdicts unfolded.

Evidence of Similar Acts

[80] Evidence of similar acts or extrinsic misconduct is a kind of character evidence: bad character evidence. It invites a trier of fact to conclude from specific prior incidents of misconduct that an accused is a person of a certain character or disposition. And then to use that character or disposition to support an inference of guilt of a specific offence or offences with which that accused is charged.

[81] Although evidence of character or disposition as revealed by specific conduct on other occasions may be relevant to a specific allegation of crime with which an accused is charged, this evidence is usually excluded because its slight probative value is ultimately overwhelmed by its predominant prejudice effect. What the similar act rule prohibits is not so much a state of facts, but rather a chain or path of reasoning.

[82] The similar act rule, like other rules of admissibility, is by nature exclusionary: evidence of similar acts is presumptively inadmissible. It is of no moment to the rule whether the similar acts are charged as separate counts in a multi-count indictment or involve uncharged extraneous misconduct. But, again like other rules of admissibility, the similar act rule permits exceptions.

[83] The rationale or principles underlying the exclusionary rule are the key to its exclusionary exceptions. The exclusionary rule is based upon the presumed predominance of prejudicial effect over probative value. The exception is engaged when the presumption is rebutted. This occurs when the probative value of the evidence overcomes its prejudicial effect, that is to say, the moral and reasoning prejudice associated with it. The inferences sought to be drawn must accord with common sense, intuitive notions of probability, and the unlikelihood of coincidence.

[84] Because relevance is central to the admissibility of evidence, the proponent of an item of evidence, including evidence of similar acts, must establish an issue to which the evidence is relevant in order to gain a foothold on admissibility.

[85] The issues in a case derive from the facts alleged in the charge and the defences advanced or those which may be reasonably anticipated at trial. Thus, as the proponent of evidence of similar acts, it is incumbent on the Crown to identify the live issue to which the evidence of similar acts is said to relate. The relative importance of the issue in a particular trial may also have a bearing on the weighing up of factors for and against admissibility.

[86] The issues in question are not categories of admissibility. The identification of an issue to which the evidence of similar acts is said to be relevant is neither more nor less than a step in the admissibility analysis which, in the end, turns on weighing the probative value and prejudicial effect of the evidence.

[87] The principal driver of probative value is the connectedness or nexus established between the evidence of similar acts and the offence of which it is offered to assist in proof. What is required is an evaluation of the degree of similarity between the proposed evidence and the offence charged to determine whether the objective improbability of coincidence has been established.

[88] In evaluating the nexus or connection between the similar acts and the offence charged, the authorities suggest that close attention should be paid to similarities in character, proximity in time and frequency of occurrence. A trial judge should also consider the cogency of the evidence of similar acts in relation to the inferences the proponent seeks to have the trier of fact draw from it, as well as the strength of the proof of the similar acts themselves.

[89] It is well settled that where evidence of similar acts is proposed for admission to identify an accused as the person responsible for a crime, the authorities require a high degree of similarity. The descriptives vary but include phrases such as "strikingly similar", "so highly distinctive or unique as to constitute a signature", or "fingerprints at the scene of the crime" that would safely differentiate the alleged perpetrator from other possible assailants.

[90] In the usual course where evidence of similar acts is proposed for admission in proof of a perpetrator's identity, the trial judge should review the manner in which the similar acts were committed, that is to say, whether the allegedly similar acts involve a unique trademark or reveal a number of significant similarities. This review enables the trial judge to determine whether the alleged similar acts were likely all committed by the same person. This analysis is confined to a consideration of the manner in which the acts were committed and not the evidence relating to the involvement of the accused in those acts. The result of this analysis establishes the likelihood of a common actor.

[91] For evidence of similar acts to be admissible on the issue of identification, it is not sufficient that the evidence reveal a common actor. Somehow those acts must be linked to the accused. In other words, there must be some evidence of a linkage or nexus between the similar acts and the accused as their author. There must be some evidence, something beyond mere opportunity or possibility, that provides this nexus.

[92] A final point concerns the scope of review of decisions on the admissibility of evidence of similar acts. These decisions involve the weighing up of probative value and prejudicial effect, and thus are accorded substantial deference on appeal. This does not mean of course that a trial judge has a discretion to admit similar act evidence where the rule of presumptive inadmissibility has not been displaced because the prejudicial effect of the evidence exceeds its probative value. What it does mean is that absent an error in principle, the decision should rest where it is allocated -- with the trial judge.

The Principles Applied

[93] For reasons that follow, I would give effect to this ground of appeal. I am satisfied that the trial judge erred in admitting the evidence on one count as evidence of a similar act on the other count and further erred in failing to sever the counts to require a separate trial on each.

[94] As between the two aspects of this ground of appeal, the pivotal issue concerns the admissibility of the evidence on one count as evidence of a similar act available to assist in proof of the other count. None would gainsay that the necessity for severance of counts in a multi-count indictment diminishes where evidence is admissible across counts on similar act principles. And so it is to this issue of admissibility that I will first turn.

[95] In this case, the fundamental issue for the jury to determine was whether the Crown had proven beyond a reasonable doubt that it was the appellant who had killed the deceased. To decide that issue, the jury was entitled to consider any evidence adduced at trial that was relevant to establish each allegation and compliant with the rules of admissibility. As a general rule, this meant that evidence relating to the killing of C.C. would determine whether the appellant killed her, but not whether he killed D.D. and vice versa.

[96] But the Crown sought some assistance to prove that the appellant killed each of C.C. and D.D. It wanted to prove that he killed C.C. not only by evidence tending to show his involvement in that killing, but also by evidence tending to show that he killed D.D. In this endeavour, the Crown was confronted with the admissibility rule that rendered the other count evidence presumptively inadmissible.

[97] To overcome this rule, the Crown was required to show on a balance of probabilities that the probative value of this evidence exceeded its prejudicial effect.

[98] This admissibility rule, the similar act rule, permits across-counts use of evidence provided the evidence discloses a sufficient similarity in which the manner in which each offence was committed to render coincidence improbable. When the issue on which the evidence is offered is identity, the degree of similarity required between the acts is often described as "striking" or the requirement as one of "strikingly similar" acts.

[99] The similarity between or among acts must be so unique that common sense makes it inexplicable on the basis of coincidence. The evidence must go beyond showing a mere tendency to commit crimes of this kind and be positively probative of the crime charged.

[100] This significant degree of similarity which renders coincidence improbable may be established by some unique trademark or signature or by a series of significant similarities between the proposed evidence and the offence for which it is offered as proof. It is common ground in this case that the conduct being compared reveals no unique trademark or signature.

[101] The decision in Arp teaches that in assessing the similarity of the acts, a trial judge should only consider the manner in which the acts were committed and not evidence of the accused's involvement in those acts. And it is the manner in which the acts were committed that must measure up to this demanding standard of similarity when the evidence is proposed for admission on the issue of identity.

[102] Sometimes, no bright line separates the circumstances of the conduct being compared and the connection of an accused to it. The admissibility of evidence of similar acts must be determined in light of the relevant circumstances surrounding those acts. While some aspects of the circumstances may be too remote to be considered, sometimes evidence that ties the accused to the acts is an inextricable part of those circumstances.

[103] In this case, the trial judge articulated the proper test for the admissibility of similar acts and appreciated that a high degree of similarity was required between the offences since the evidence was tendered on the issue of identity. But in applying the test, he erred in three respects and reached an unreasonable conclusion.

[104] First, the trial judge failed to appreciate that what was being offered as evidence of a similar act was evidence of a single incident separated by more than two years from the offence on which it was offered as proof. Evidence of similar acts is tendered to negate the likelihood of coincidence as an explanation for the acts. The likelihood of coincidence diminishes with the number of similar incidents and the degree of their similarities. This was a single incident lacking any signature feature and with only a few generic similarities falling well short of what is required.

[105] Second, the trial judge appears to have misapprehended the impact of the bloodstains on the underside of the stair riser in connection with the death of C.C. The stains cannot be dated and were not consistent with the amount of blood expected had she been killed there.

[106] Third, in assessing the similarities in the manner in which the offences were committed and thus the acts were similar, the trial judge misused the evidence linking the appellant to the conduct. It is the acts that must be similar, not the actor.

[107] It follows from what I have said that the trial judge erred in admitting the evidence on one count as a similar act on the other count.

[108] In large measure, the error in admitting the evidence on one count as evidence of a similar act to prove the appellant's guilt on the other count determines the result on the question of severance.

[109] Setting to one side the similar act issue, this was a close case for joinder. The trial judge acknowledged that apart from the fact that the same accused was charged with both murders, there was neither a factual nor a legal nexus between the counts. The offences occurred two years apart. The appellant advanced an objectively plausible claim that he wanted to testify on one count (D.D.) but not on the other. And the evidence on one count (D.D.) was significantly stronger than that on the other, thereby enhancing the prospect of moral prejudice in the absence of evidence of similar acts.

[110] That evidence of similar acts was being admitted was a controlling factor in the trial judge's decision to deny severance. When the evidence of similar acts is removed from the analysis and the stringent standards of Jeanvenne is applied, the result should be severance and not joinder.

Ground #2: Discharge of Juror

[111] This ground of appeal takes issue with a ruling made on the first day of the trial about the suitability of a selected juror to continue in light of evidence of his prior connection with a relative of one of the deceased.

[112] Some additional background is essential to an understanding of the circumstances in which the issue arose and the trial judge's decision not to discharge the juror from service.

The Essential Background

[113] After an unsuccessful change of venue application apparently based on pre-trial publicity, the appellant appeared for trial in Welland. Although the nature and extent of pre-trial publicity did not persuade a judge to change the venue of trial, the same ground was advanced as a basis to challenge prospective jurors for cause under s. 638(1)(b) of the Criminal Code.

[114] Prior to the challenge for cause, the trial judge asked members of the jury panel whether they were related to or closely connected with any of the principals at trial, including any persons who might be called as witnesses by the Crown. Among the persons whose names were read aloud by Crown counsel as potential Crown witnesses was W.K., the step-mother of the deceased C.C. W.K. had been actively involved in advocating on behalf of C.C. and other victimized sex trade workers in the Niagara Region in advance of trial. Her name appeared in the media associated with complaints that the justice system was biased against sex trade workers.

The Message Received

[115] About 90 minutes after the evidentiary portion of the trial had begun, the trial Crown received information that W.K. had indicated that she knew one of the jurors selected to try the case. She and the juror had patronized the same bar in the past.

[116] The information of which Crown counsel advised the trial judge also included W.K.'s recollection that the juror had offered his condolences to her after C.C. died about six years before the trial. W.K. said she had been to the juror's home about three times, but had not seen him for a year.

The Inquiry Request

[117] Trial counsel for the appellant (who is also counsel on appeal) asked the trial judge to conduct an inquiry into the suitability of the juror to continue as a member of the jury. The trial judge agreed to conduct an inquiry and had the juror brought into the courtroom in the absence of the other jury members but in the presence of all other trial participants.

The Initial Inquiry of the Juror

[118] The juror was not asked to take an oath or make a solemn affirmation on the inquiry.

[119] In answer to the trial judge's questions, the juror acknowledged that he knew a woman whose first name was W., but did not know her last name. He had seen her at the courthouse that morning but had no idea about her relationship to C.C. The juror said that he had never been at W.K.'s home. He did not recall ever having expressed his condolences to her over C.C.'s death. They had never discussed the case. He had not spoken to W.K. for a long time, about a year or two.

[120] At the conclusion of the trial judge's questioning, the juror was sent back to the jury room to rejoin his fellow jurors. A few moments later, the trial judge directed court staff to tell the juror not to disclose to his fellow jurors what had happened.

The Defence Request

[121] Defence counsel pointed out the discrepancies between the versions of the relationship provided by W.K. and the juror. Counsel asked the trial judge to discharge the juror, but acceded to the trial judge's suggestion that they ought to hear from W.K.

The Inquiry of W.K.

[122] In the absence of the jury, W.K. was brought into the courtroom, sworn and asked questions by the trial judge and the counsel on both sides.

[123] In responding to questions by the trial judge, W.K. indicated that she knew the juror because they used to "hang out" at the same place and had some mutual friends. They had been to each other's homes. W.K. was uncertain whether the juror had ever expressed his condolences to her about C.C.'s death.

[124] In answer to the trial Crown, W.K. testified that she had been at the juror's home "at the most" four times and had last seen him about a year prior to trial. She explained to defence counsel that she and the juror shared a love of karaoke. She said that the juror had been with a friend when he went to W.K.'s house, but she did not think he actually entered the home.

The Further Inquiry of the Juror

[125] The trial judge had the juror brought back into the courtroom and asked him some further questions in the absence of the other 11 jurors. He described W.K. as an acquaintance, not a friend. He had only seen her at the bar, the last occasion about one and one-half to two years before trial. The juror said that this acquaintance would not interfere with his ability to adhere to his oath to decide the case on the evidence and to give the accused the benefit of any reasonable doubt.

The Positions of Counsel at Trial

[126] The trial Crown agreed with defence counsel that the juror should be discharged despite the juror's asserted belief that he could adhere to his oath. The Crown expressed concern about the appearance of a lack of impartiality. He added that "the Court of Appeal is so bad on jury issues".

[127] Defence counsel asked the trial judge to discharge the juror on the basis of a reasonable apprehension of bias or of a lack of impartiality. Counsel then sought a mistrial rather than continue with 11 jurors. Counsel pointed out that the juror could not be replaced because the trial judge had denied his request to empanel a jury of 14. The trial, counsel said, was at an early stage. The prospect of losing further jurors over what would be a lengthy trial with evidence that would be unsettling to many was not worth the risk of continuing with only 11 jurors 90 minutes into the trial.

The Ruling of the Trial Judge

[128] The trial judge began by pointing out that whether the juror should be discharged was a different issue than whether, had the same information emerged during the pre-vetting of jurors for relationship with trial principals or on a challenge for cause, the prospective juror would have been excused or successfully challenged for cause. He preferred the evidence of the juror to the testimony of W.K. about the nature of their interaction. Despite the fact that both counsel agreed that the juror should be discharged to preserve the apparent fairness of the trial, the trial judge disagreed with their joint position. He was satisfied that the juror could be and appear to be impartial.

[129] The trial judge concluded his ruling in these terms:

[Crown counsel]'s submissions are interesting. I recommend them for transcription in the event of an appeal. I disagree with [Crown counsel] as to my approach to the issue. I think I should not be looking for an answer that is politic, in other words, it is not a question of what I think I can get away with. I think that I have to make a conscientious effort to make a decision that is in accord with the law and the facts as I understand them. If I am wrong, the consequences of an error should not be my concern.

On the facts before me, I do not see reasonable cause to discharge the juror. He is not partial, nor does he appear to be partial. He is fully able and fully committed to render a true verdict according to the law and the evidence of this acquaintance is of a very minor nature. I see more mischief in delaying this proceeding any further for insufficient reasons.

I accept that this is a very important proceeding to the accused and unless there is a sufficient reason I think it is very important that it proceed so that he can have verdict and know what is going to happen to him for the rest of his life.

I decline to discharge the juror.

The Arguments on Appeal

[130] The appellant says that the trial judge exercised his discretion under s. 644(1) of the Criminal Code unjudicially. His failure to discharge the affected juror compromised the actual and perceived fairness of the trial proceedings.

[131] According to the appellant, the trial judge erred in two ways. He failed to conduct a proper inquiry because he favoured and relied upon the unsworn evidence of the affected juror rather than the sworn testimony of W.K. In addition, he decided the issue on the basis of a credibility assessment, but ignored the broader issue of the appearance of trial fairness.

[132] The appellant contends that the mere fact that W.K. volunteered her connection to the juror demonstrated the objective perception of a tainted jury. This perception was further confirmed by counsels' consensus that had the issue emerged during jury selection, the then-prospective juror would have been excused as a matter of course.

[133] The appellant emphasizes that the appearance of judicial impartiality is as important as the reality. It is remarkable and paradoxical to his refusal to discharge the juror that the trial judge ordered that W.K., the step-mother of the deceased, C.C., be prohibited from attending the proceedings. He made a similar order in connection with another person, said to be "a manifestly intimidating man" who was erroneously believed to be taking photos of jurors, among them the affected juror. The judge also barred this man, who counsel later learned was dating W.K., from further attendance at the trial.

[134] The respondent begins with a reminder about the discretionary nature of a decision to discharge a juror. Here, the respondent says, the trial judge conducted appropriate inquiries, applied the proper test, and made findings of fact that were reasonable and supported by the evidence adduced at the inquiry. Those findings are accorded deference on appellate review. In this case, the connection between W.K. and the juror was tenuous, barren of any close connection and unable to meet the standard required for discharge.

[135] As a matter of fundamental principle, the respondent continues, a presumption of impartiality attaches to each and every juror sworn to try a criminal case. To defeat that presumption, the party challenging it must establish a reasonable apprehension of bias. The test to be applied is what an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude. The reasonable person would be aware of the juror's oath, the presumption of juror impartiality, the trial procedures in place to impress upon jurors the gravity and solemnity of their task, the burden and standard of proof, the injunction against speculation, and the requirement of unanimity.

[136] In this case, the respondent argues, the evidence falls well short of satisfying the standard for discharge of the juror. The connection between W.K. and the juror was tenuous, well short of the "closely connected" standard. The juror's answers on the inquiry belied any influence on his impartiality. The fact that the juror would have been excused had the connection emerged immediately before or during the selection process is at best a factor to consider, but not dispositive of the issue the judge had to decide. Further, the existence of bias is belied by the length of the jury's deliberations at the conclusion of this trial -- seven days.

The Governing Principles

[137] Several principles inform our decision on this issue. Some have to do with the procedure to be followed on a juror discharge inquiry under s. 644(1), others with the standard to be applied and the factors to be considered. Still others describe the standard of review.

[138] Section 644(1) provides statutory authority for a trial judge to discharge a juror at any time "in the course of a trial". The subsection also describes the basis on which the order may be made. The discretionary authority may only be exercised where the judge is satisfied that the juror should not continue to act by reason of

(i) illness; or

(ii) other reasonable cause.

The subsection is silent on the factors the trial judge must or may take into account, as well as on the procedure to be followed preliminary to the conclusion.

Procedure

[139] First, the procedure.

[140] The circumstances that may give rise to a necessity for a decision under s. 644(1) are myriad. It follows that there can be no fixed or invariable form of inquiry conducted. Flexibility is essential. Each case must be tackled according to its own idiosyncrasies. A trial judge should be afforded a high degree of flexibility in determining and following the procedure he or she thinks best suited to resolve the particular issue raised.

[141] When asked to discharge a juror under s. 644(1), a trial judge must follow this non-exhaustive list of considerations, ensuring that the process will

(i) be fair to all the parties and all the jurors;

(ii) be conducted in open court, on the record, and in the presence of the accused and counsel on both sides;

(iii) enable the trial judge to determine the true basis of the claim for discharge and to resolve it; and

(iv) preserve the integrity of the trial process and the impartiality of the jury.

[142] Whether a juror should continue to act or be discharged under s. 644(1) is not an issue that sits comfortably with the adversarial nature of a criminal trial, and it should not be subject to the normal rules of that system. Once sworn or affirmed, jurors become and remain judges for the remainder of the trial. To be certain, they must of necessity submit to any proper inquiry conducted by the trial judge -- the "other" judge in the case. But they should not become witnesses in the very proceeding in which they have sworn or affirmed "to well and truly try and a true deliverance make between our Sovereign Lady the Queen and the prisoner whom you have in your charge". No more so than the trial judge should become a witness in the ordinary sense.

[143] Juror inquiries under s. 644(1) should take place in open court, on the record, in the presence of the accused and counsel. The inquiry should be conducted by the trial judge. At least so far it relates to the juror(s) affected, counsel should be permitted to suggest questions to be asked of the juror(s) and to make submissions about the decision to be made, but not permitted to question the juror directly.

[144] No principled reason warrants the juror whose suitability is in issue being put under oath or required to make a solemn affirmation. When empanelled, each juror swears an oath or makes a solemn affirmation in the terms described earlier. This is sufficient for the purposes of the s. 644(1) inquiry and permits the trial judge to make any findings necessary to the discharge decision, whether the juror's answers be uncontradicted or controverted by evidence given by other witnesses under oath or solemn affirmation.

The Standard Applied

[145] Next, the standard applied.

[146] The determination whether to discharge a juror under s. 644(1) proceeds from a presumption of impartiality in which those summoned for jury duty and those selected are clothed. In each case, the presumption is that jurors, prospective or actual, will approach and discharge their duty impartially and in accordance with judicial instructions.

[147] The standard that a party seeking to rebut the presumption of impartiality must meet depends on the issue to be decided. At the pre-vetting stage, for example, a "close connection" between a prospective juror and a trial principal may be sufficient to excuse the prospective juror from the selection process.

[148] In determining whether to permit a challenge for cause under s. 638(1)(b) for want of indifference, the standard to be met in the supportive material is a "realistic potential for partiality".

[149] It is uncontroversial that lack of impartiality on the part of a selected juror can constitute "other reasonable cause" to discharge that juror under s. 644(1) of the Criminal Code. The test applicable at this stage to rebut the presumption of impartiality is that of reasonable apprehension of bias.

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

[151] In concluding whether a reasonable apprehension of bias has been established, a judge tasked with an application under s. 644(1) could take into account, among other things, the juror's oath or affirmation; the presumption of impartiality; and the contents of the judge's instructions to the jury on fundamental legal principles like the need to keep an open mind, how to assess evidence, the irrelevance of extraneous considerations and the proper conduct of the deliberative process.

Standard of Review

[152] A final point concerns the standard of review for decisions under s. 644(1) of the Criminal Code. A decision under the subsection is afforded substantial deference and set aside only when it is tainted by an error of law or principle, there is a misapprehension of material evidence, or it is a decision that is plainly unreasonable.

The Principles Applied

[153] I would also accede to this ground of appeal, although I would not do so on the basis of the procedural errors advanced by the appellant, that is to say, the failure of the trial judge to have the affected juror swear an oath or make a solemn affirmation before giving evidence on the inquiry and the trial judge's determination to accept the evidence of the juror rather than the sworn testimony of W.K.

[154] The inquiry into the suitability of the juror to continue was not an adversarial proceeding in the traditional sense. The juror was not on trial. He was already bound by his oath as a juror. Indeed, he was by then a judge of the court. Although he was required to submit to the inquiry and answer questions put to him, he was not required to swear a fresh oath or make a second affirmation.

[155] It was the task of the trial judge to consider the evidence adduced at the hearing and make the findings of fact essential for him to decide the suitability of the juror to continue. In terms of probative potential, the evidence of W.K. and of the affected juror were on equal footing. The evidence of W.K. was not rendered more reliable, nor she more credible, because she gave it under an oath administered on the inquiry rather than one taken by the juror at the outset of trial.

[156] In my respectful view, the trial judge erred in failing to discharge the juror because he failed to give appropriate consideration to the importance of the appearance of fairness in deciding the suitability of the juror to continue. The effect of the trial judge's decision was to permit a juror, who had some kind of connection to the step-mother of one of the victims, a person whose name was mentioned as a potential Crown witness and one who had vigorously advocated against what she considered unfair treatment by the justice system of sex trade workers, to determine the guilt of the person accused of murdering her step-daughter.

[157] Recall as well that it was W.K. who was sufficiently concerned about the connection to bring it to the attention of the authorities. The trial judge also had the benefit of the joint position of experienced counsel advocating discharge of the juror. In these circumstances, although the decision was for the trial judge to make, I am satisfied that he erred in failing to discharge this juror.

Ground #3: The Included Offence of Manslaughter

[158] This ground of appeal relates only to the count of first degree murder in the death of D.D. Some further background is necessary to gain some perspective on the claim of prejudicial error and to assess its viability.

The Essential Background

[159] The positions of counsel during the pre-charge conference are of service to an understanding of this ground of appeal.

The Pre-Charge Conference

[160] During the pre-charge conference, defence counsel asked the trial judge to leave manslaughter to the jury as an included offence in the count charging the first degree murder of D.D. He also invited the trial judge to leave the justification of self-defence, although it was not consistent with the defence advanced at trial, that is to say, that the appellant did not kill D.D.

[161] The appellant staked his claim for instructions on both self-defence and manslaughter on the testimony of Dana Arnold, the appellant's wife. She recounted what the appellant had told her about the circumstances in which D.D. was killed. The account included a claim that the appellant first hit D.D. when she tried to rob him of his cocaine. This blow rendered her unconscious. He put her over his shoulder, brought her back to his home and took her to the garage. There, D.D. tried to hit him with a hammer. The appellant then grabbed the hammer and struck D.D. on the head.

[162] Apart from relying on the narrative provided by Dana Arnold to found the claim about manslaughter, defence counsel did not elaborate on the legal basis for a manslaughter verdict, that is to say, whether he was asserting voluntary manslaughter (when the intent element in murder is not proven) or involuntary manslaughter (when murder is reduced to manslaughter based on a defined mitigating circumstance such as provocation).

The Objections to the Charge

[163] Initially, the trial Crown expressed his agreement with defence counsel about the available verdicts. But after reviewing his notes, the trial Crown resisted the claim of self-defence and then added:

But I think on the other verdicts, available verdicts, we are all in agreement.

[164] In the main charge, the trial judge did not leave manslaughter as an available verdict on the count relating to D.D. Both the Crown and defence counsel objected to the omission.

[165] In his objections to the charge, defence counsel relied on the appellant's prior statements, according to which the killing was a reaction to D.D. taking the last of some cocaine in his garage. Counsel contended that D.D.'s stealing of the appellant's cocaine off his spoon was a provocative wrongful act. In response, the appellant "flipped out". He had consumed crack cocaine himself, thus an element of intoxication was also present. Counsel contended that this conduct either amounted to the statutory partial defence of provocation or warranted a "rolled-up" instruction. He argued that the instruction should include reference to the provocative act, drug consumption, and the immediacy of the appellant's reaction as factors tending to negate foresight of death as a probable consequence of striking the deceased with a hammer.

The Decision of the Trial Judge

[166] After counsel had concluded their objections to the charge, the trial judge recalled the jury for some further brief instructions. He declined to leave the included offence of manslaughter to the jury because "on the basis of intoxication, provocation or lack of intent" it lacked an air of reality.

The Arguments on Appeal

[167] The appellant renews his submission that manslaughter should have been left to the jury as an available verdict on the count relating to D.D.

[168] The appellant contends, as he did at trial, that the evidence provided an air of reality for the included offence of manslaughter to be left to the jury. It was open to the jury to find that there was a snap reaction to a provocative act by the deceased -- an attempt to steal some cocaine -- by a person who had himself ingested crack cocaine. The combined effect of these factors on the appellant's knowledge of the likelihood of death following from the blows he struck to the head of the deceased left manslaughter as a verdict reasonably available on the evidence. The trial judge erred in failing to leave manslaughter as an available verdict on the count relating to D.D.

[169] The respondent resists this claim of error. The obligation to leave manslaughter as an available verdict was contingent upon evidence being adduced at trial that would permit a reasonable jury, properly instructed, to conclude that each essential element of manslaughter was established. Taken as a whole, the evidence failed to meet this standard.

[170] According to the respondent, a trial judge invited to instruct a jury about an included offence should carefully scrutinize the claim to avoid putting in play issues that fail the air of reality test and whose introduction is more likely to complicate the jury's task than to simplify it.

[171] In this case, the respondent continues, the defence position on the availability of manslaughter varied. At the pre-charge conference, counsel put the case for manslaughter on the immediacy of the appellant's response to the deceased's threat with a hammer, which trial counsel said also warranted an instruction on self-defence. In objecting to the charge, defence counsel contended that manslaughter should have been left on the basis of provocation, or because the combined effect of provocative conduct by the deceased, the immediate reaction by the appellant, and the effect of having consumed crack cocaine raised a reasonable doubt about the appellant's knowledge of the likelihood of death following from his blows.

[172] The respondent challenges the availability of the statutory partial defence of provocation and the common law "defence" of intoxication on the evidence adduced at trial. There was neither a wrongful act of sufficient gravity to deprive an ordinary person of the power of self-control nor any evidence of the effects of crack consumption on the appellant's state of mind in this case. Anger alone is not enough. The evidence adduced did not warrant an instruction on manslaughter. Not on the basis of provocation. Not on the ground of intoxication. And not as a result of the combined influence of several factors on the appellant's state of mind.

The Governing Principles

[173] The parties occupy common ground about the principles that govern our decision on this issue, but part company on the outcome that should follow from the application of those principles in this case.

[174] Instructions to the jury on defences, justifications, excuses, or included offences are not for the asking. In each case what controls is whether there is an air of reality for the instruction sought. And whether there is an air of reality depends on the evidence adduced at trial.

[175] To satisfy the air of reality standard, the evidence adduced at trial must afford a basis upon which a reasonable jury, properly instructed, could have a reasonable doubt about the constituent elements of an included offence. This test requires trial judges to tread a fine line. It requires more than "some" or "any" evidence of the elements of a defence but does not extend so far as to allow a weighing of the substantive merits of that defence. The air of reality standard is about the availability of a defence, or included offence, not about the likelihood of its success at trial.

[176] Application of the air of reality standard enjoins any consideration of the credibility of witnesses or the reliability of their evidence; of weighing evidence substantively; of making findings of fact; or of drawing determinate factual inferences. However, in some circumstances, as for example where the elements of a defence can only be established by drawing inferences from circumstantial evidence, a trial judge must examine the totality of the evidence to determine whether the inferences required to ground the defence fall within the field of inferences reasonably available on the evidence adduced at trial.

[177] Where a defence, justification or excuse has more than one element, the air of reality test must be met for each essential element, whether it be subjective or objective in nature. The absence of evidence on any essential element disentitles consideration of that defence. The same holds true when the defence requests that the jury be instructed on an included offence.

[178] A final point has to do with the "rolled-up" instruction, a direction that counsels jurors to consider all the circumstances surrounding an unlawful killing to determine whether their cumulative effect raises a reasonable doubt about the accused's state of mind such that the unlawful killing is not murder but manslaughter. On their own, none of the factors, such as drug consumption, anger, immediate reaction, or provocative words or conduct by the deceased may be able to ground a specific defence like justification or excuse. But sometimes the whole exceeds the sum of its individual parts. Once again, the obligation to give this instruction depends on satisfaction of the air of reality standard.

The Principles Applied

[179] For the reasons that follow, I am satisfied that the trial judge erred in law in failing to leave for the jury's consideration the availability of a verdict of not guilty of first degree murder but guilty of manslaughter on the count relating to D.D.

[180] At the outset, I acknowledge that a verdict of manslaughter is inconsistent with the principal defence advanced at trial -- a denial of participation in the unlawful killing. But whether an instruction on an included offence is required is not determined by the fact or extent of any inconsistency between the principal defence advanced and the findings necessary for the included offence. Although the nature of the principal defence advanced may factor into a decision about whether to instruct on an included offence, what controls is whether the evidence adduced at trial satisfies the air of reality test for the essential elements of that included offence.

[181] A conviction of unlawful act manslaughter may be grounded on an unlawful and dangerous act, such as an assault with a weapon, coupled with the mens rea required for that offence and objective foreseeability of the risk of bodily harm that is neither trivial nor transitory in the context of the dangerous act. The Crown need not prove an intention to cause death, or even foreseeability of death.

[182] In this case, the narrative given by Dana Arnold provided an air of reality on the basis of which a properly instructed jury could find

(i) that the appellant, angered by D.D.'s theft or attempt to steal his crack cocaine or to hit him with a hammer, immediately grabbed the hammer and struck her on the head with it fracturing her skull;

(ii) that the conduct of the appellant was intentional and an unlawful and dangerous act; and

(iii) that a reasonable person in equivalent circumstances would foresee the risk that this conduct would cause bodily harm to D.D. that was neither trivial nor transitory.

The availability of these findings on the evidence adduced at trial was sufficient to warrant instruction on the availability of a verdict of manslaughter in accordance with the joint position of trial counsel.

Ground #4: Intercepted Private Communications

[183] This ground of appeal alleges that the trial judge erred in his interpretation of a clause in the original authorization and a subsequent renewal and, as a result of that error, admitted as evidence several intercepted private communications that should have been excluded under s. 24(2) of the Charter.

[184] Some brief background will provide the context necessary to an understanding of the alleged error.

The Essential Background

[185] At trial, the Crown tendered as part of its case-in-chief 34 intercepted telephone calls in which the appellant participated. The appellant opposed the introduction of this evidence on two grounds:

(i) that there was no reliable evidence, which might reasonably be believed, on the basis of which the authorization and subsequent renewal could have issued; and

(ii) that the interceptions tendered for admission were not made in accordance with the authorization or renewal and thus breached the appellant's rights under s. 8 of the Charter.

[186] The trial judge dismissed both applications and admitted the intercepted private communications as evidence at trial. On appeal, the appellant challenges only the ruling that the interceptions were made in accordance with the authorization or renewal and thus not in breach of s. 8 of the Charter.

The Clause in Issue

[187] Among the named targets in the authorization and renewal were the appellant, his wife and Hoss Gallen. The places of interception included a payphone at the detention centre where the appellant was in custody, landlines at the residences of the appellant's wife and Hoss Gallen, and a cellphone registered to the appellant's wife.

[188] The clause in issue is in these terms:

9(c) THAT in respect of all places described in paragraph 5, such interception of private communications will be monitored live and when it is determined that none of the persons described in paragraph 3 or 4 is, or is about to become a party to such communication, the interception of the private communication shall cease. HOWEVER, the interception of private communications may be resumed at reasonable intervals, not to exceed every two minutes for the purpose of determining if one of the persons described in paragraph 3 or 4 is, or is about to become, a party to such private communication.

The Interceptions

[189] To implement the interception process, investigators used the Voicebox software, which permitted a target line to be configured for automatic or live monitoring.

[190] With automatic monitoring, Voicebox intercepted and recorded communications without human intervention, although a monitor could choose to listen to the communication. A monitor who chose to listen could continue to listen, "minimize" the call by terminating interception, or "put away" the call, which stopped the monitor's listening but continued interception and recording.

[191] Calls configured by Voicebox for live monitoring were automatically intercepted, but the monitor had two minutes to acknowledge the interception or the interception would be terminated, unless the call ended by itself. A monitor who acknowledged the call could continue to listen, "minimize" the interception or "put away" the call. If a call began on a live-monitored line when all the monitors were listening to other calls, the software chose one monitor, put away the call to which the monitor was listening and commanded the monitor to acknowledge the new call.

[192] During the period covered by the first authorization, the landlines of Dana Arnold (then Dana Durant) and Hoss Gallen were configured for automatic recording rather than live recording, as they should have been. The configuration was changed to live monitoring during the renewal period. The police who implemented the order had never seen a live monitoring condition for landlines so they configured the lines for automatic monitoring. When the lines were configured for live monitoring, some calls were monitored in their entirety and others monitored for part of the call and then put away without spot monitoring.

[193] In connection with the calls from the detention centre and Dana Arnold's cellphone, the police interpreted para. 9(c) to require them to monitor only for so long as reasonably necessary to establish that a named target was a party, after which they could put the call away, keep recording it, and spot monitor the call to be sure a named target remained on the call.

The Ruling of the Trial Judge

[194] The trial judge was satisfied that the failure to live monitor in accordance with the authorization was a serious breach of s. 8 of the Charter.

[195] The trial judge explained his interpretation of clause 9(c) of the authorization and renewal in this way:

The authorization links live monitoring to the presence of named targets. It says, "private communications will be monitored live and when it is determined that none of the persons described in paragraph 3 or 4 is, or is about to become a party to such communication, the interception of the private communication shall cease." To me, that implies that when it is determined that one of the named persons is a party to the communication, continuous monitoring is no longer necessary. Spot monitoring is sufficient. The issuing judge chose not to specify an interval at which spot monitoring must take place. He left it to the reasonable discretion of the monitor.

As far as I can tell, the monitors conducted at least spot monitoring reasonably whenever possible. I qualify that by saying whenever possible, because this function, too, suffered from the systemic inadequacies to which I referred in paragraph [8]. Spot monitoring should always have been possible, but unfortunately it was not. So while I conclude that the police interpretation of paragraph 9(c) was correct, the communications were not always intercepted in accordance with its terms.

At all events, the judge was satisfied that the police interpretation of the clause was "at least reasonable".

The Admissibility Ruling

[196] The trial judge then turned his attention to the admissibility of the intercepted private communications as evidence in light of his finding of constitutional infringement. He concluded:

I find helpful the approach taken by Dawson J. in Ansari and O'Marra J. in Peluso. To me, the analysis required by s.24(2) of the Charter, as explained in R. v. Grant, 2009 SCC 31, turns on the following on the facts before me:

a. Overall, the breach was serious, but not intentional. With respect [to] live monitoring, apart from the two land lines that were intercepted automatically, the police were attempting to comply with the authorization, and they succeeded to a great extent. They were hampered by inadequate manpower, which was their own fault. With respect to the two landlines, they were obviously negligent, but nothing worse than that. The police did nothing dishonest or reprehensible. They were not indifferent to or unconcerned about upholding the rights of individuals.

b. The impact on the accused of the breach is minimal. On the other hand, the impact on the rights of other persons is important. The public should not get the impression that the right to be secure from unreasonable search and seizure is of little moment.

c. Society's interest in the adjudication of the case on its merits is great. The case is serious. Exclusion of the wiretaps would not prevent the adjudication of the case on its merits, nor would it gut the Crown's case. The most important part of the wiretap evidence is the admission by the accused that [C.C.] returned to his house. The Crown could still call that evidence from the person to whom the accused made the utterances, and even use the wiretap to refresh the witness's memory if necessary. Having noted that, it strikes me as important that the wiretap would provide much more reliable evidence on what is a central point in the prosecution of count 2.

d. There is no need to send a message to the police about their conduct of wiretaps. They have already changed their practices. They monitor live without interruption and they use more staff.

[197] Overall, the trial judge decided that these factors tipped the balance in favour of admitting the evidence.

The Arguments on Appeal

[198] The appellant says that the trial judge erred in his interpretation of clause 9(c) in the authorization and renewal. This error, he contends, disentitles the judge's ruling on s. 24(2) from the deference it would usually attract on review by this court. Once deference gives way and the lines of inquiry under Grant are applied afresh to the constitutional infringement now established, exclusion, not admission of the intercepted private communications as evidence should follow.

[199] According to the appellant, clause 9(c) does not permit monitors to spot monitor or put away calls. What was required by this clause was live monitoring. Live monitoring did not occur. In the result, the interceptions were not made in accordance with the authorization. It follows that these interceptions constituted infringements of s. 8 of the Charter and thus engaged s. 24(2) to determine the evidentiary consequences of this unconstitutional conduct. Properly applied to serious breaches with a significant impact on the privacy interests of the appellant, s. 24(2) mandates exclusion, not admission of the evidence.

[200] On the other hand, the respondent rejects any suggestion of error either in interpreting clause 9(c) of the enabling orders or in admitting the intercepted private communications as evidence.

[201] The respondent says that each clause in an authorization or renewal must be interpreted in the context of the order as a whole and its purposes, as revealed by the supportive affidavit and the terms of the order itself. Each case is different. The interpretation placed on similar but not identical language in one authorization cannot be transported indiscriminately to another. In this case, the trial judge correctly concluded that clause 9(c) implied that once it was determined that a named person was a party to the communication, continuous monitoring was not necessary; rather, spot monitoring would suffice. This satisfied the need for constitutional compliance.

[202] Further, the respondent adds, the trial judge's analysis of admissibility under s. 24(2) reveals no error. The judge stated and applied the proper framework, engaged in an appropriate evaluation of the relevant factors and reached a reasonable conclusion. Interference is not warranted.

The Governing Principles

[203] It is uncontroversial that, as a search or seizure, the interception of private communications is subject to the standard of reasonableness put in place by s. 8 of the Charter. In this case, the interception of private communications was conducted under the auspices of an authorization and renewal issued under Part VI of the Criminal Code. The appellant does not renew the failed Garofoli challenge he advanced at trial, but says that the interceptions were nonetheless unreasonable because they were not made "in accordance with" the authorization or renewal.

[204] Section 184(1) of the Criminal Code makes it an indictable offence to wilfully intercept private communications by means of specified types of devices. Section 184(2)(b) exempts a person who intercepts a private communication "in accordance with an authorization" granted under Part VI of the Criminal Code from criminal liability for that interception. In order for a search under Part VI to be constitutionally compliant, it needs to be done in accordance with the authorization.

[205] An authorizing judge has a discretion, but not an obligation, to include terms and conditions in the authorization or renewal. To determine whether to include terms and conditions, the authorizing judge must consider whether their inclusion is "advisable in the public interest".

[206] For instance, an authorizing judge may include terms whose purpose is to minimize the risk that communications of others who are beyond the scope of the authorization or renewal will be captured.

[207] To be "in accordance with an authorization" and therefore constitutional, interceptions must be compliant with the authorization as a whole, including with any terms or conditions contained in the order as advisable in the public interest. To determine whether an authorization permits certain interceptions to be made or, after the fact, whether those interceptions have been made "in accordance with an authorization", requires an examination not only of the specific words, phrases and clauses in the enabling order, but also the order as a whole.

The Principles Applied

[208] Although I differ somewhat from the trial judge on the interpretation of the live monitoring requirement in clause 9(c) of the governing authorization and renewal, I am satisfied that he did not err in admitting the intercepted private communications as evidence at trial. It follows that I would not give effect to this ground of appeal.

[209] This ground of appeal concerns the admissibility of evidence of 34 intercepted private communications to which the appellant was a party while awaiting trial at a local detention centre. The appellant and his collocutors talked on various landlines and a cellphone registered to the appellant's wife. Those involved in the telephone calls were all named as targets in the enabling orders.

[210] The constitutional infringement advanced by the appellant alleged that the interceptions were not made "in accordance" with the governing authorization or renewal because investigators failed to comply with the live monitoring condition included in clause 9(c) of the authorization and renewal. The complaint is not that the police were disentitled to record the conversations, but that they failed to listen to them in their entirety while simultaneously recording them as both orders required.

[211] The purpose of the live monitoring term or condition in this case was to ensure that the interceptions were confined to the private communications of the named targets and did not intrude on the conversational privacy of others who were beyond the scope of the order.

[212] The requirement in clause 9(c) in each order is that the interception of private communications on the landlines and cellphone be "monitored live".

[213] The verb "monitor" means to listen to or report on something, such as a radio broadcast or telephone conversation, or to observe, supervise, keep under review, measure, or test at intervals. The adverb "live" refers to the timing of the monitoring -- contemporaneously with the conversation -- and the nature of the monitor, a person, not a machine.

[214] At the very least, when a call is recorded automatically or put away, no monitoring occurs. And to the extent this happens, the interception is not made "in accordance with" the authorization or renewal even though the recording of the communication, which like listening falls within the expansive definition of "intercept" in s. 183, is "in accordance with" the authorization or renewal.

[215] To the extent the trial judge came to a contrary conclusion, I disagree with him. That said, the term "monitor", considered on its own, does not require continuous activity. Nor does the addition of the adverb "live", as in "monitored live", which is directed more to contemporaneity than to constancy.

[216] Turning to the admissibility of the intercepted private communications as evidence, I am satisfied that the trial judge reached the correct conclusion when he decided to receive the evidence.

[217] The infringement here consisted of imperfect compliance with a term of a facially valid authorization and renewal. The error here was a failure to listen while recording, not an error in recording something that investigators were not permitted to record. The failure to listen contemporaneously did not result in recording anything that should not have been recorded in the 34 interceptions admitted as evidence.

[218] The trial judge considered the infringement serious but the impact on the appellant's Charter-protected interests minimal. These findings are reasonable on the evidence adduced. The third factor favours admission, not exclusion of the evidence. I would not interfere with the trial judge's conclusion on this issue.

Conclusion

[219] I would allow the appeal, set aside the convictions and order a new and separate trial on each count of the indictment.

Appeal allowed.

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