COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Welsh, 2013 ONCA 190

DATE: 20130402

DOCKET: C49268

Rosenberg, Sharpe and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jahmar Welsh

Appellant

BETWEEN                                                                               DOCKET:
    C49887

Her Majesty the Queen

Respondent

and

Ruben Pinnock

Appellant

BETWEEN
    DOCKET: C47667 & C49453

Her Majesty the
    Queen

Respondent

and

Evol Robinson

Appellant

Dirk Derstine and Ariel Herscovitch, for Ruben Pinnock

David Bayliss and Anik Morrow, for Evol Robinson

Philip Campbell, for Jahmar Welsh

Alex  Hrybinsky, Benita Wassenaar and Holly Loubert,  for
    the respondent

Virginia Nelder, for the intervener African Canadian
    Legal Clinic

Jason MacLean, for the intervener Canadian Civil Liberties
    Association

Heard: December 18  20, 2012

On appeal from the conviction entered on February 15,
    2008 by Justice T. OConnor of the Superior Court of Justice, sitting with a
    jury.

Rosenberg and Sharpe JJ.A:

[1]

Ruben Pinnock, Evol Robinson and
    Jahmar Welsh appeal their convictions for the first degree murder of Youhan
    Oraha who was shot and killed in a Brampton parking lot near his car shortly
    after 10 p.m. on the evening of October 9, 2004.

[2]

Oraha died of multiple gunshot
    wounds to his head, chest and abdomen. The autopsy revealed 29 bullet wounds
    and the police found 28 cartridge casings in the parking lot. Forensic evidence
    indicated that four different firearms were used. No murder weapons were found.
    It was agreed at trial that the circumstances of Orahas death were planned and
    deliberate.

[3]

The Crowns theory was that eight individuals,
four
of whom were shooters, were involved in the murder. The Crown
    alleged that Welsh was one of the four shooters, that Pinnock planned the
    murder with Welsh and acted as a lookout, and that Robinson delivered a gun to
    Welsh and acted as a lookout and getaway driver. The other alleged shooters and
    participants in the murder were not identified.

[4]

The Crown alleged that the motive
    for the murder was family revenge for the murder of Shemaul Cunningham a month
    earlier. Cunningham was shot while driving Welshs car on Highway 401. Oraha
    was a suspect in the Cunningham murder. The Cunningham murder was preceded by
    the murder of Adrian Baptiste who was shot and killed in Toronto in December
    2003 at the wheel of Orahas parked car. At the time of trial, no charges had
    been laid in either the Cunningham or Baptiste murder.

[5]

Welsh and his younger brother
    Robinson are the sons of Colette Robinson. Pinnock was Welshs friend and considered
    to be like a nephew to Colette Robinson. Cunningham had been Welshs best
    friend and very close to Colette Robinson.

[6]

The key evidence against the
    appellants was:

·

Orahas girlfriend, Lasharn
    McLean, who was with him at the time of the murder, identified Welsh as one of
    the shooters.

·

Andrew Brown, Robinsons best
    friend, testified that he was present at the murder scene with Robinson and
    that he saw both Welsh and Pinnock.

·

There were video and audio tapes
    of Robinson and Pinnock making incriminating statements to an undercover
    policeman posing as an Obeah spiritual advisor.

·

Cell phone records were used to
    trace the appellants movements and calls made during the evening of October 9.

·

A car matching the description of
    Welshs car was identified near the scene of the murder.

[7]

None of the appellants testified. Through his counsel, Robinson conceded
    that he was present at the scene and advanced a case of manslaughter.

[8]

The appellants advance several grounds of appeal. The four principal
    grounds of appeal are that:

·

The incriminating statements made by Robinson and Pinnock to the
    undercover police officer should not have been admitted;

·

The fairness of the trial was tainted by an
in camera
proceeding conducted by the trial judge, in which the trial judge met privately
    with Crown counsel to discuss an issue of privilege arising from the Crowns
    interview of Andrew Brown on the eve of trial;

·

The trial judge erred by refusing to sever the trial of Welsh,
    against whom the Obeah statements were not admissible; and

·

The trial judge erred by allowing the Crown to advance in closing
    submissions to the jury the speculative proposition that Pinnock had called
    out the shooters.

[9]

For the following reasons, we would dismiss the appeals.

FACTS

[10]

We
    propose to review the facts on an issue by issue basis but will begin with an
    outline of the essentials of the Crowns case.

The Crowns theory at trial

[11]

The
    Crown submitted that on the evening of the murder, Welsh and Pinnock learned of
    Orahas whereabouts. They drove to Brampton, found Orahas parked car and
    planned the murder. Welsh called his brother Robinson and asked to bring him
    his car and a gun. Pinnock called reinforcements. Robinson drove Welshs car to
    the scene with Brown and gave Welsh a gun. Brown got into a van with Pinnock
    and acted as look out. A second car carrying reinforcements arrived. Eight
    people lay in wait. When Oraha appeared, four shooters killed him.

[12]

It
    was an agreed fact that Oraha was a drug trafficker immersed in the criminal
    subculture and an active member of the No Love Vice Lord Bloods street gang.
    The Crown advanced the theory that Colette Robinson, her sons Welsh and
    Robinson, and their friend Pinnock wanted revenge for the Cunningham murder and
    that they thought that Oraha was the killer.

Lasharn McLean

[13]

Oraha
    had been staying for about a month with his girlfriend, Lasharn McLean, at
    McLeans mothers townhouse in the Franklin Court complex near the intersection
    of Lisa St. and Clark Blvd. in Brampton. McLean testified that she and Oraha
    left the townhouse shortly after 10 pm on October 9, 2004 carrying two bags and
    a flashlight. They proceeded to Orahas car, parked in a lot on the other side
    of Clark Blvd. They observed that the front licence plate was partly hanging
    off. Oraha went to the back of the car to check the rear plate. McLean remained
    crouched down at the front of the car. When she got up, she saw Welsh, whom she
    knew, approaching the car. He was crouched down with his arm extended and had a
    black object in his hand. McLean was approximately 10 to 15 feet away from
    Welsh and she saw his face for about 3 seconds. She fled the scene as the
    shooting began. She heard 15 to 20 gunshots and flagged down a passing driver who
    took her to the police station. Earlier that evening, she and Oraha had seen a
    young black man surreptitiously observing them while they sat outside the
    townhouse.

[14]

Initially,
    McLean told the police that she did not see the shooters but after she learned
    that Oraha was dead, she identified Welsh. The defence strongly challenged
    McLeans credibility on a number of points, including the change in her story
    to the police, the reason she offered for that change, and an allegation of
    sexual assault she had made several years earlier. The defence also argued that
    her description of the shooting was undermined by the actual location of the
    bags she claimed to have tripped over as she fled the scene.

Andrew Brown

[15]

The
    other key Crown witness was Andrew Brown who was 17 at the time of the murder.
    Brown was Robinsons best friend and had been living at the Robinson residence
    for several weeks prior to the murder.

[16]

Brown
    testified that on the night of the murder, Robinson told him that he was going
    to Brampton to meet his brother Welsh. Brown asked if he could get a ride.
    Robinson drove Welshs black Cavalier at high speed and took several cell phone
    calls on the way.

[17]

When
    they arrived at Lisa St. they drove up to a grey-ish van. Pinnock and Welsh
    were in the van. Welsh asked Brown to get out of the car and into the van. Welsh
    switched places with Brown. As he did so, Brown saw the bottom of Welshs shirt
    go up and down while Welshs back was to him. Pinnock drove the van behind the
    building and then asked Brown to drive the van out of the parking lot across
    Clark Blvd. back to the townhouse complex. While Brown did so, Pinnock was in
    the rear of the van using a cell phone. When they arrived back at Lisa St.,
    Pinnock resumed his position in the drivers seat. Welshs Cavalier was now
    parked nose out in a different parking spot. Pinnock used his cell phone either
    to make or receive a call. Brown saw another car pull in and then pull out.

[18]

After
    about 20-30 minutes, Brown saw at least three people running towards another
    car. He then heard gunshots. After the shots, he saw people running back. The
    Cavalier left the parking lot with Robinson driving and Welsh in the passenger
    seat. Pinnock drove the van out of the parking lot, behind the Cavalier. An
    area resident described cars pulling out and heading down Lisa and then along
    Clark, seemingly towards Highway 410: they were trying to get out in a hurry.
    Brown lost sight of the Cavalier on the way. He thought that Pinnock received a
    short phone call when they were on Highway 401.

[19]

When
    Pinnock and Brown returned to the Robinson residence, Robinson and Welsh were
    there. After Pinnock and Welsh left, Robinson and Brown watched a television
    broadcast about the murder. Robinson told Brown that the victim of the murder
    was responsible for the murder of Shemaul Cunningham. Robinson and Brown
    discussed the events of the evening and Robinson told Brown that when Welsh got
    into the car, he asked Robinson to hand him a gun. On cross-examination, Brown
    agreed that Robinson also told him that Robinson did not know that a murder had
    been planned and that he did not know that there was a gun in the car before he
    arrived at the scene.

[20]

The
    defence strongly challenged Browns credibility. He had a criminal record and
    was clearly fearful of the police and of being implicated in a murder
    prosecution. From the time he was first interviewed by the police he had given
    various conflicting accounts as to what occurred on the night of the murder.
    His testimony at trial was very different from what he had earlier told the
    police and from his testimony at the preliminary hearing. Before trial, he
    insisted that he believed the purpose of Robinsons trip to the scene of the
    murder was to make a drug deal. He changed his story shortly before the trial
    during an interview with Crown counsel.

The Obeah statements

[21]

Obeah
    describes a system of spiritual and mystical beliefs practiced in Jamaica and
    other black communities of the West Indies. The police learned that Colette
    Robinson, mother of Evol Robinson and Jahmar Welsh, believed in spirits and
    that she thought Shemaul Cunninghams ghost was around her house. An undercover
    police officer, Andrew Cooper, posed as an Obeahman called Leon. He
    befriended Ms. Robinson and held himself out as possessing mystical powers and as
    capable of providing protection from the justice system (the Babylon system)
    and the police (the beast or beastman). He told Ms. Robinson that a good
    spirit, Shemaul Cunningham, was in conflict with a bad spirit, Youhan Oraha (referred
    to as the white boy) and that the bad spirit was seeking revenge against the
    Robinson family. Cooper carried out elaborate ruses to demonstrate his powers,
    including placing a dead crow on the doorstep of the Robinson home and
    arranging for a police officer to feign illness during a fake traffic stop of
    Ms. Robinson. Leon also met with Robinson and Pinnock and insisted in his
    meetings with Ms. Robinson and the two appellants that he had to know the full
    details of the incident that created the evil spirit to be able to protect
    them.

[22]

Cooper
    had several meetings and telephone calls with Ms. Robinson from February to May
    2005. The meetings with her and his subsequent ten meetings with Robinson and
    two meetings with Pinnock were mostly conducted in hotel rooms where they were surreptitiously
    videotaped. Telephone calls were audiotaped. In those meetings, both Robinson
    and Pinnock made statements implicating themselves and Welsh in the murder.

Cell phone records

[23]

The
    appellants were each linked to a cell phone. On the night of the murder, there
    were many calls between the three appellants. The murder occurred shortly after
    10 p.m. The calls commenced at about 8 p.m. and continued until after 11 p.m.
    There were 25 calls to or from the phone linked to Pinnock, 13 of which
    occurred between 8:28 p.m. and 10:09 p.m. Pinnock used a call block feature
    preventing his number from being displayed on the recipients phone for five
    calls prior to 10:09 p.m. and for one call at 11:34 p.m. Experts testified as
    to the locations and movements of the three cell phones during the evening.
    That evidence indicated that the three appellants had proceeded to the vicinity
    of Lisa St. just before the time of the murder and then returned to the
    Robinson residence after the time of the murder, in a manner consistent with
    Browns evidence.

Welshs car

[24]

Three
    residents in the area of Lisa St. heard gunshots on the night of the murder and
    saw cars speed away. They variously described one of the cars as a black or
    dark blue Sunfire, Sunbird or Cavalier. Welsh was stopped by the police a week
    after the murder driving a 2002 Chevrolet Cavalier, and Brown testified that he
    drove with Robinson in Welshs black Cavalier. The Chevrolet Cavalier is
    similar in appearance to a Pontiac Sunfire.

ANALYSIS

ISSUE 1: The Admissibility of the Obeah Statements

1. Facts

The nature of Obeah

[25]

Four
    expert witnesses gave evidence as to the nature of Obeah: a professor of
    divinity, a social anthropologist, a political anthropologist, and a professor
    of Christian thought and ethics. Their evidence may be summarized as follows.

[26]

Obeah
    centres on mysticism and spiritualism and is commonly practiced throughout the
    Caribbean and by those of Caribbean descent, including many Caribbean
    Canadians. It is a flexible and all-encompassing belief system that defines the
    characteristics of the supernatural world and its relationship to humankind.

[27]

Believers
    use Obeah for a variety of reasons, including solving spiritual as well as
    physical or psychological problems. Spirits, both good and evil, are a
    fundamental component of Obeah. A common belief is that the spirits of dead
    people who are not at rest or have died under uncertain circumstances can cause
    damage, injury or distress to the living. Obeah is used as a bridge between the
    natural and the spirit worlds, and part of the work of an Obeah practitioner is
    to try to protect supplicants who believe that an evil spirit is targeting
    them.

[28]

Rituals
    are a vital aspect of the practice of Obeah. Some rituals are traditional and
    common in Obeah, while others are created by the individual practitioner to
    suit the needs of a particular case. Practices generally include prayer,
    fasting, and hymn singing, as well as a strong reliance on candles, water,
    oils, herbal baths, and charms. Metaphors are regularly used in Obeah. Two
    prevalent metaphors include referring to Babylon to represent the justice
    system and to the beast or beastman to represent the police.

[29]

Obeah
    typically does not involve physical places of worship. This is primarily due to
    the fact that Obeah was historically suppressed and generally prohibited in the
    Caribbean. Thus, practitioners usually work out of their homes. They consult
    supplicants in private, and there is an expectation of confidentiality between
    the practitioner and supplicant. It is common for a supplicant to pay a
    practitioner for Obeah-related services.

[30]

The
    trial judge summed up his assessment of the expert evidence on the nature of
    Obeah at para. 2 of his ruling: Among some cultures in the Caribbean Islands,
    an
Obeahman
is believed to have the ability to communicate with the
    spirit world and to influence events and people in the physical world.

The Obeahman undercover operation

[31]

Constable
    Andrew Cooper, an undercover officer, posed as an Obeahman named Leon. Cooper
    was an experienced member of the Peel Regional Police. He is a large and
    imposing man who grew up in a Jamaican community in London, England. Coopers
    technique was to present an elaborate deception involving conversation and
    rituals to gain Ms. Robinsons confidence and to persuade her and her son of
    his mystical powers. The police initially planned to use the Obeahman ruse as a
    stimulation for a wiretap and outlined their intentions and the nature of the
    scheme in the Part VI application in the following terms:

As part of the stimulation plan, police plan to introduce an
    undercover police officer acting in the role of an Obeahman to one or more of
    the named persons. Obeah is defined in the Merriam-Websters Dictionary 10th
    edition as a system of belief among blacks chiefly of the British West Indies,
    the Guianas and the Southeastern United States that is characterized by the use
    of sorcery and magic ritual. An Obeahman is a sorcerer who practices Obeah.
    Upon being introduced, the undercover officer will explore the named persons
    willingness to use sorcery to fight the police and the judiciary. If the named
    person shows a desire to use Obeah for this purpose, the undercover officer
    will provide information to the named person regarding the murder of one or
    both victims in an attempt to stimulate the named person into providing
    information regarding their knowledge and/or involvement in/on or both murders.

[32]

In
    February 2005, the police staged an accident involving Ms. Robinsons car.
    Posing as Leon, Cooper spoke to her, offering to pay for the damage, and told
    her that he felt a vibe. Several meetings with her followed. In his
    subsequent meetings with her, Cooper often wore a black gown and used candles.

[33]

A
    recurrent theme in Coopers conversations with Ms. Robinson and the appellants
    was the protection he could offer her and her children. He told Ms. Robinson
    that the good spirit died because he didnt have the protection. Cooper
    told Ms. Robinson that he would take care of the police and the judge: Im
    going to deal with the beast [the police] and the judge. Wiretap evidence
    revealed that she told a friend that Leon told her that she would have to take
    responsibility for any destruction that occurred, that he would only take
    responsibility for the judges and the police, and that this work here is not
    of God. He told them that the evil spirit was vengeful and that it would
    manipulate the justice system.

[34]

Cooper
    used elaborate props, including an egg with red dye to simulate blood. When
    Cooper went with Ms. Robinson and her son Evol to the murder scene for an egg-breaking
    ritual that he called location of the creation with reference to the evil
    spirit. Later, the police put a dead crow on Ms. Robinsons doorstep to
    demonstrate that Leons powers were working. He told Robinson: thats how my
    protection work the crow dead that was my doing protecting you from the John
    crow them  John crow being a reference to the justice system. Another ploy
    was to provide Ms. Robinson with a white handkerchief as a protective device
    against the police. In a staged incident, a police officer pulled her over
    while she was in possession of the handkerchief. The officer feigned illness
    and Ms. Robinson had to help him back to the cruiser. In a similar incident,
    when Evol Robinson was in possession of the handkerchief, he arrived late for a
    recognizance at the police station, the officer feigned illness and told
    Robinson that he could sign in and leave.

[35]

Leon
    impressed upon both Robinson and Pinnock that in order to stop the evil
    spirit or the white boy from harming them and the family, he had to find out
    where and how the evil spirit had been created  in other words, how Oraha was
    killed. This induced Robinson and Pinnock to make statements in which they
    admitted that they were at the scene of the murder. Robinson told Leon about
    his movements with Brown and that there were four shooters and eight people
    involved. Pinnock admitted that he was at the scene, that he made a phone call,
    but insisted that he did not see Oraha.

[36]

The
    final ploy was connected with the arrest of Ms. Robinson. Leon told Robinson
    that she had been arrested because she had not given him the information he had
    requested. He pressed Robinson for details about the murder as this thing here
    is coming after your mother hard now and that Robinson had to tell him
    everything to avoid the evil that had befallen his mother. Robinson reluctantly
    admitted that he was at the scene of the murder after receiving a call from his
    brother Welsh, that Brown and Welsh had switched places in the cars and that
    the white guy pulled up I guess they all get out start shooting. Robinson
    admitted that he had touched the gun and that his mother had cleaned it.

[37]

On
    the voir dire to determine the admissibility of the statements to Cooper, neither
    Evol Robinson nor Pinnock testified as to the state of their belief in Obeah.
    The only evidence as to the state of their beliefs came from the tapes and from
    the experts who viewed the tapes. The experts testified that neither of the
    appellants were Obeah adherents or believers before they encountered Cooper.
    They knew little of Obeah and had no habit of practicing Obeah. They became
    involved because of Ms. Robinson. One theologist thought that Robinson attended
    the meetings with Cooper for protection, not counselling. He also thought that
    Pinnock was not a believer but that towards the end he appeared to have moved
    from being a non-believer to being a convert. The other theologist thought that
    both appellants were believers. The cultural anthropologist thought that
    Pinnock was not an intense believer but a believer in a very basic sense.

2. The trial judges ruling

[38]

The
    appellants argued at trial that the statements should not be admitted. They
    submitted that the method of obtaining the statements violated their
Charter
rights to freedom of religion (s. 2(a)) and equality (s. 15). They also
    submitted that the method the police used to obtain the statements constituted
    a dirty trick and that their admission into evidence would constitute an
    abuse of process. Finally, the appellants argued that their statements were
    made as communications to a religious adviser and therefore were protected by
    common law privilege.

[39]

The
    trial judge rejected these arguments and ruled that the statements were
    admissible.

[40]

The
    trial judge found that although Obeah was not immediately recognizable as a
    religion according to the dominant religious paradigms, given the opinions of
    the experts and the broad definition of religion that had evolved in the case
    law, it did constitute a religious belief system that attracted the
    protection of s. 2(a). The trial judge also found that Robinson had a sincerely
    held belief in Leons spiritual powers as an Obeah practitioner. The trial
    judge found that Pinnock had failed to demonstrate a genuine or sincere
    belief.  In the trial judges view, Pinnock had gone along with the visits to
    Leon to mollify Ms. Robinson and to satisfy his own curiosity.

[41]

The
    trial judge found, however, that the deception practiced by the undercover
    operation to entice Robinsons incriminating statements did not amount to a
    violation of Robinsons s. 2(a) right to freedom of religion. Robinson was not
    constrained or coerced in his religious practice. The police did not
    interfere with his freedom to worship or express himself spiritually, nor did
    the police interfere with his ability or right to worship or coerce him to
    disbelieve or disavow his religious beliefs. It was not sufficient for the
    appellants to show that they had been coerced or berated or even threatened by
    the Obeahman into confessing as that conduct would not have interfered with
    their right to practice their form of religion. Any interference with
    Robinsons freedom of religion was therefore trivial or insubstantial and not a
    violation of s. 2(a).

[42]

The
    trial judge also found that if there had been a s. 2(a) violation, it would be
    justified as a reasonable limit under s. 1. The trial judge found that violent
    crime involving guns was a pressing social concern and that police undercover
    operations were an essential and unavoidable element of crime prevention,
    curbing gun violence and apprehending perpetrators of gun crimes.

[43]

As
    for s. 15, the trial judge found that the appellants had been targeted on the
    basis of their suspected involvement in a serious crime, not on the basis of
    race or religion, and, as with s. 2(a), had there been a violation of s. 15, it
    was justified as a reasonable limit under s. 1.

[44]

The
    trial judge found that as the police conduct did not violate the appellants
    right to freedom of religion, it similarly did not constitute a dirty trick
    that would either shock the conscience of the community or bring the
    administration of justice into disrepute.

[45]

Finally,
    the trial judge rejected the contention that the appellants conversations with
    Cooper attracted common law privilege. The trial judge applied the test
    mandated by
R. v. Gruenke
, [1991] 3 S.C.R. 263, taken from Wigmore,
Evidence
    in Trials at Common Law
, vol. 8, McNaughton Revision, (Boston: Little,
    Brown & Co., 1961), at para. 2285:

(1)  The communications must originate in a
confidence
that they will not be disclosed.

(2)  This element of
confidentiality must be
    essential
to the full and satisfactory maintenance of the relation between
    the parties.

(3)   The
relation
must be one which in
    the opinion of the community ought to be sedulously
fostered
.

(4)  The
injury
that would inure to the
    relation by the disclosure of the communications must be
greater than the
    benefit
thereby gained for the correct disposal of litigation.

[46]

The
    trial judge relied as well on the judgment of Archie Campbell J., applying the Wigmore
    test in
R. v. Medina
, [1988] O.J. No. 2348.

[47]

The
    trial judge found that the first factor was satisfied:

Given the physical setting of the meetings, the atmosphere
    induced by the Obeahman, and gravity of the admissions made, the Applicants
    would naturally have had some expectation of confidentiality.

[48]

However,
    the trial judge found that appellants failed to meet the second factor:

Pinnocks and Robinsons motive in attending the Obeah sessions
    was not sincere participation in a religious rite or service; rather, their
    purpose was to seek protection from the evil spirit of the deceased Oraha and
    to cause harm to those who sought to bring them to justice for allegedly
    committing a serious crime.

[49]

The
    trial judge also found that the appellants failed to meet the third factor. He
    noted that in
Medina
, Archie Campbell J. held that while the community
    interest in encouraging pastoral counselling grounded in religion was one to be
    sedulously fostered, there was no community interest in protecting statements
    made for the purpose of getting away after a crime. The trial judge found that
    as one of the purposes of the appellants in the communications with Leon was
    expressly to obstruct law enforcement officials and the judiciary from
    prosecuting them, the appellants had failed to establish a sufficient
    connection between their statements and the relation of pastoral counselling
    or religious guidance.

[50]

Finally,
    the trial judge concluded that the harm that would result from suppressing the
    evidence far outweighed any harm to the Obeahman-adherent relationship.

3. Did the trial judge err in finding that the Obeahman
    undercover operation did not violate the appellants s. 2(a) right to freedom
    of religion?

[51]

The
    main focus of the appellants appeal against the admission of the Obeah
    statements rests on their contention that the undercover operation violated
    their freedom of religion.

[52]

The
    guarantee of freedom of conscience and religion found in s. 2(a) is central to
    the
Charter
s overall scheme of protection of individual autonomy,
    freedom and dignity. In two foundational cases, Dickson C.J. laid out the basic
    principles
. R. v. Big M Drug Mart Ltd.
, [1985] 1 S.C.R. 295, at p.
    346, holds that the purpose of freedom of religion is related to every
    individuals right to be free to hold and to manifest whatever beliefs and
    opinions his or her conscience dictates. In
Edwards Books & Art Ltd.
    v. R.,
[1986] 2 S.C.R. 713, at p. 759, Dickson C.J. added that the
    purpose of s. 2(a) is to ensure that society does not interfere with profoundly
    personal beliefs that govern ones perception of oneself, humankind, nature,
    and, in some cases, a higher or different order of being.

[53]

Alberta
    v. Hutterian Brethern of Wilson Colony
, 2009 SCC 37, [2009] 2 S.C.R. 567,
    at para. 32, states that a claim of violation of religious freedom protected by
    s. 2(a) will be made out where:

(1) the claimant sincerely believes in a belief or
    practice that has a nexus with religion; and

(2) the impugned measure interferes with the
    claimants ability to act in accordance with  his or her religious beliefs
    in a manner that is more than trivial or insubstantial. [Citations omitted.]

[54]

The
    Supreme Court reiterated Dickson C.J.s statement in
Edwards Books and Art,
at p. 759, that [t]he Constitution shelters individuals and groups only to the
    extent that religious beliefs or conduct might reasonably or actually be
    threatened; that [f]or a state-imposed cost or burden to be proscribed by s.
    2(
a
) it must be capable of interfering with religious belief or
    practice; and that legislative or administrative action which increases the
    cost of practising or otherwise manifesting religious beliefs is not prohibited
    if the burden is trivial or insubstantial (citations omitted).

[55]

The
    first element that a claimant must establish is a sincere practice or belief,
    subjectively connected with the applicants spiritual faith or connection with
    a higher or different order of being. In
Syndicat Northcrest v. Amselem
,
    2004 SCC 47, [2004] 2 S.C.R. 551, at para. 39, the Court observed that while it
    is difficult to define, religion typically involves a particular and
    comprehensive system of faith and worship and a belief in a divine,
    superhuman or controlling power.  The essence of religion, said the
    Court, concerns freely and deeply held personal convictions or beliefs
    connected to an individuals spiritual faith and integrally linked to ones
    self-definition and spiritual fulfilment and practices that allow individuals
    to foster a connection with the divine or with the subject or object of that
    spiritual faith. The Court emphasized a subjective approach to freedom of
    religion that focuses on the sincerity of the claimants subjective belief, at
    para. 46, that is irrespective of whether a particular practice or belief is
    required by official religious dogma or is in conformity with the position of
    religious officials.

[56]

The
    respondent does not challenge the trial judges finding that given this broad
    and subjective definition of religion and the opinions of the expert witnesses,
    Obeah beliefs and practices constitute a religious belief system that
    attracts the protection of s. 2(a). Nor does the respondent challenge the trial
    judges finding that Robinson had a sincerely held belief in Leons spiritual
    powers as an Obeah practioner.

[57]

Pinnock
    challenges the trial judges finding that he lacked a sincerely held religious
    belief, and the respondent supports that finding as being well-founded on the
    evidence.

[58]

The
    second hurdle a claimant faces is to demonstrate that the impugned law or state
    action interferes with his or her freedom in a manner that is more than trivial
    or insubstantial.

[59]

Most,
    if not all, decided cases deal with situations where a law or practice either
    compels an individual to act in a manner contrary to his or her religious
    beliefs or burdens the individuals ability to act in accordance with those
    beliefs.

[60]

An
    example of an action compelled by law that violates religious freedom is the
    requirement for businesses to close on Sundays pursuant to the
Lords Day
    Act
considered in
Big M.
The
Lords Day Act
compelled
    non-Christians to observe the Christian Sabbath. Other examples are laws
    compelling the recital of the Christian Lords Prayer or the teaching of Christian
    religious education in public schools: see
Zylberberg v. Sudbury Board of
    Education (Director)
(1988), 65 O.R. (2d) 641 (C.A.);
Canadian Civil
    Liberties Association v. Ontario (Minister of Education)
(1990), 71 O.R.
    (2d) 341 (C.A.).

[61]

The
    police undercover operation at issue on this appeal did not compel any action
    for a religious purpose. Leon encouraged the appellants to adopt Obeah
    practices, but encouragement short of compulsion does not infringe
    s. 2(a). The
Charter
, unlike the American Bill of Rights, does
    not contain an establishment clause forbidding state action that promotes
    religion: Peter Hogg,
Constitutional Law of Canada
, 5th ed., looseleaf,
    (Toronto: Carswell, 2007), at para. 42.2.

[62]

More
    often laws and practices that violate religious freedom fall into the second
    category as burdening or interfering with the individuals ability to act in
    accordance with religious beliefs. For example,
Amselem
found that
    prohibiting a temporary structure erected for religious purposes violated freedom
    of religion. In
Multani v. Commission scolaire Marguerite-Bourgeoys,
2006
    SCC 6, [2006] 1 S.C.R. 256, the court considered and struck down a school
    policy that prohibited a Sikh student from bringing into the school his kirpan,
    a ceremonial knife worn for religious reasons.

[63]

Not
    all laws or practices that burden religiously motivated actions will violate s.
    2(a). In
Jones v. R.
, [1986] 2 S.C.R. 284, Supreme Court held that a
Charter
breach will be made out only where the burden is more than trivial or
    insubstantial. In
Jones
, the court found that a state imposed
    requirement that a parent engaging in home education for religious reasons must
    obtain an exemption from a school board certifying that the home education met
    minimum standards did not have sufficient impact on the parents religious
    beliefs to constitute a violation of s. 2(a). See also
Hutterite Brethren
,
    at para 32, referring to
Edwards Books
, at p. 759,
per
Dickson C.J.: The Constitution shelters individuals and groups only to the
    extent that religious beliefs or conduct might reasonably or actually be
    threatened.

[64]

Did
    the Obeah undercover deception practiced upon the appellants by the police
    amount to a non-trivial and substantial burden or interference with the appellants
    religious freedom?

[65]

The
    appellants were duped into engaging in practices they were told and, to some
    extent, believed had a spiritual or religious connotation. This deceptive
    practice by the police amounted to a surreptitious invasion of a relationship
    the appellants believed to be rooted in religion or spiritualism. That invasion
    calls for scrutiny by virtue of the claim of common law religious privilege and
    under the dirty tricks doctrine, considered below. It seems to us that the
    rights and interests asserted by the appellants are more squarely and directly
    confronted under those common law doctrines than under s. 2(a) of the
Charter
.
    The
Charter
value of freedom of religion is an important consideration
    under those common law doctrines, but these more precisely focused common law
    claims are distinct from a claim of a breach of s. 2(a). However, as the
    appellants claim for exclusion of the statements emphasizes a violation of s.
    2(a), we will focus our analysis on that issue.

[66]

To
    the extent that the invasion of the relationship did implicate freedom of
    religion protected by s. 2(a), we agree with the trial judge that any
    interference was trivial or insubstantial.

[67]

First,
    the evidence that Robinson held a sincere belief in Obeah was tenuous and the
    trial judge found as a fact that Pinnock lacked such a belief. We are not
    persuaded that there is any basis for us to interfere with that finding.
    Neither appellant appeared to have any significant prior knowledge of Obeah.
    Both men were reluctant participants in the Obeah sessions and both had to be
    persuaded to participate by Ms. Robinson. Neither testified on the voir dire as
    to the nature of their beliefs. Their adherence to Obeah had to be inferred
    from their conduct in the sessions with Leon. As the onus of making out a s.
    2(a) claim rests with the claimant and as sincerity of belief is a subjective
    matter, to make out a violation of s. 2(a) a claimant will ordinarily have to
    testify to establish the sincerity of his or her religious belief: see e.g.
Multani
,
    at para. 35. In general, the more strongly held a religious belief, the more
    significant any state interference will be. In this case, the belief, to the
    extent that it existed, was both recent and weak.

[68]

Second,
    the trial judge found that the purpose of the appellants attending and
    participating in the Obeah sessions was to seek protection from the justice
    system and to cause harm to the authorities who sought to prosecute and convict
    them for allegedly committing a serious crime. While that finding was made in
    relation to the claim for common law religious privilege, we see no reason why
    it should not apply to the s. 2(a) claim.

[69]

There
    was ample evidence to support the trial judges finding that the purpose of the
    appellants in their communications with Leon was expressly to obstruct law
    enforcement officials and the judiciary from prosecuting them. As we have
    explained, the consistent and dominant theme in the meetings between Leon and
    Ms. Robinson and the appellants was Leons claim to have power to control the
    police and the justice system. The ploys involving the dead crow and the ill
    officers were used to persuade the appellants that Leon could harm the police.
    Robinsons incriminating statements made at the final meeting were induced in
    part by the deception that Ms. Robinson had been arrested because she had
    failed to give Leon a complete account.

[70]

Third,
    there is no evidence that either appellant communicated with Leon to satisfy or
    fulfill some spiritual need or purpose. This situation is distinguishable from
    the hypothetical of a police officer posing as a priest and pretending to take
    a religiously motivated confession from a suspect. In that case, the
    communication would be religiously motivated and made to satisfy a spiritual
    need or purpose. We point out that the lack of a formal practice of confession
    in Obeah is not determinative: see
Gruenke,
at pp. 291-292. The focus
    is not on formal distinctions of that kind but rather on whether a religious
    purpose motivates the communication. The situation of a suspect who thinks he
    is speaking to a religious or spiritual figure for spiritual counselling or
    guidance is very different from that of a suspect who seeks assistance in
    thwarting the authorities: see
Medina
.

[71]

We
    conclude that any religious element in the Obeah sessions with Leon is properly
    characterized as trivial, insubstantial and dwarfed by the corrupt motives that
    induced the appellants to participate in and fall for the elaborate scheme of
    deception practiced upon them.

[72]

We
    add the following observation with regard to the corrupt motives of Robinson
    and Pinnock. Based on the Supreme Courts jurisprudence, it is clear that
    courts cannot look into the sincerity or legitimacy of a persons belief.
    Indeed, in the context of freedom of religion, s. 2(a) protects beliefs in an
    almost limitless manner. However, there may be limitations as to the extent to
    which s. 2(a) will protect the manifestations of those beliefs. The Supreme
    Court recognized the limits of the
Charter
protection of religious
    practices in
Big M
, at p. 337 and p. 346,
Amselem
, at para.
    61,
Ross v. New Brunswick School District No. 15
, [1996] 1 S.C.R. 825,
    at para. 72, and
Bruker v. Marcovitz
, 2007 SCC 54, [2007] 3 S.C.R.
    607, at para. 72. In
Amselem
, Iacobucci J. held, at para. 61, that it
    should be emphasized that not every action will become summarily unassailable
    and receive automatic protection under the banner of freedom of religion. The
    court has also stated that the s. 2(a) protections of religious practices are
    subject to limits necessary to protect public safety, order, health or morals:
Big
    M
, at p. 337 and
Ross
, at para. 72.

[73]

Finally,
    we wish to be clear that, contrary to the submissions of the appellants, by
    holding that there was no violation of s. 2(a) in this case, we do not give the
    police
carte blanche
to exploit the religious beliefs and practices of
    suspects to obtain statements.  Each case must be decided on its own facts.
    This is plainly a very sensitive area where the police must proceed with the
    utmost caution and with the utmost respect for the fundamental value of freedom
    of religion. We wish to state clearly that this decision does not stand for the
    proposition that the police are entitled to pose as religious advisers and
    expect that statements obtained from religiously-motivated suspects will be
    admitted. In cases where suspects have sincere religious beliefs and seek
    counselling from a supposed religious adviser for non-corrupt religious reasons,
    the result could well be different.

4. Did the trial judge err in finding that the Obeahman undercover
    operation did not violate the appellants s. 15 right to equality?

[74]

We
    are not persuaded that the trial judge erred in finding that the Obeahman
    undercover operation did not violate the appellants s. 15 right to equality.

[75]

The
    investigative technique used by the police was not based upon an enumerated or
    analogous ground under s. 15. Nor did the investigative technique deployed by
    the police rest on a distinction that creates a disadvantage by perpetuating
    prejudice or stereotyping.

[76]

We
    agree with the trial judge that the equality claim fails on the basis that the
    appellants were not singled out or targeted by the police or otherwise treated
    differently on the basis of their race or religion. Their black, Jamaican
    heritage made them vulnerable to the Obeah sting, but they were singled out for
    the investigation because they were suspected of murder, not because of their
    race or religion. When investigating crime, the police necessarily tailor their
    strategies and activities according to the particular nature of the crime they
    are investigating and the individual traits of those they suspect.

[77]

In
    making their s. 15 claim, the appellants rely heavily on the evidence of
    Detective Sergeant Jarvis, the officer who designed the Obeah operation, that
    he thought that Obeah was not a religion but a form of witchcraft or voodoo and
    that he would not use a similar operation for an established religion. The
    views expressed by Detective Sergeant Jarvis, even if discriminatory, are not
    the issue and the appellants cannot ground their s. 15 claim on what he said or
    thought. The trial judge rejected Detective Sergeant Jarviss views and
    rejected the assertion that Obeah is not a religion. The decision of the trial
    judge plainly does not rest on the basis that Obeah adherents are to be treated
    differently from those who follow more traditional, established religions.

[78]

While
    this is sufficient to dispose of the ss. 2(a) and 15
Charter
claims,
    for the sake of completeness, we turn to the application of ss. 1 and 24(2).

5. Could any violation of s. 2(a) or s. 15 be justified as a
    reasonable limit prescribed by law pursuant to s. 1?

[79]

The
    trial judge found that if there were a violation of s. 2(a) or s. 15, it could
    be justified as a reasonable limit pursuant to s. 1.

[80]

We
    respectfully disagree with that conclusion as s. 1 has no application on the
    facts of this case. Section 1 requires that the limit be prescribed by law.
    At issue here is a police investigative technique that rests on nothing more
    precise than the general legal duty of the police to investigate crime. The
    Crown does not contend that there is a law that authorizes or permits the
    police to use the investigative technique under scrutiny. Where the actions of
    a government agent are not specifically authorized or prescribed by law, s. 1
    does not apply. A general duty of that nature does not amount to a limit
    prescribed by law within the meaning of s. 1. See
Little Sisters Book and
    Art Emporium v. Canada (Minister of Justice)
, 2000 SCC 69, [2000] 2 S.C.R.
    1120, at para. 141: Violative conduct by government officials that is not
    authorized by statute is not prescribed by law and cannot therefore be
    justified under section 1 and the analysis must therefore proceed directly to
    the remedy phase of the analysis.

[81]

Accordingly,
    we turn to the issue of whether, had there been a violation of s. 2(a) or s.
    15, the evidence should have been excluded pursuant to s. 24(2).

6. If there was a violation of the appellants s. 2(a) right
    to freedom of religion or s. 15 right to equality, should the evidence be
    excluded pursuant to s. 24(2) of the
Charter
?

[82]

In
    our view, even if there were a
Charter
breach, application of the
    three-part inquiry mandated by
R. v. Grant
, 2009 SCC 32, [2009] 2
    S.C.R. 353 for considering the admissibility of evidence under s. 24(2)
    strongly favours admitting the evidence.

(i) The seriousness of the Charter-infringing state
    conduct.

[83]

The
    police designed and implemented the Obeah undercover operation in good faith.
    They reasonably believed that the operation was
Charter
-compliant and
    acted in reliance on the trial courts ruling in
Rowe
, discussed below.
    The police invited judicial scrutiny of the operation when they explained it as
    a basis for a wiretap authorization.

(ii) The impact of the breach on the Charter-protected
    interests of the accused.

[84]

We
    will not repeat here the factual findings that led the trial judge and that
    lead us to conclude that any infringement of the appellants religious freedom
    was trivial and insubstantial. As we have explained, there is no evidence that
    either Robinson or Pinnock held Obeah beliefs or engaged in Obeah practices
    before being persuaded to do so by Ms. Robinson and Leon. There is no evidence
    of any impact upon their religious lives or practices. Neither appellant was
    coerced or prevented from doing anything of a religious nature. Even if the
    Obeah sting did rise to the level of a non-trivial and substantial interference
    with freedom of religion, the impact of the breach on the
Charter
-protected
    interests of the appellants was at the low end of the scale for the purposes of
    s. 24(2).

(iii) Societys interest in the adjudication of the case
    on the merits.

[85]

This
    case involved a murder that appeared to have been related to and provoked by
    two earlier murders. It was perpetrated by the killers shooting at the victim
    in an open parking lot with other bystanders nearby. There was a strong public
    interest in an effective investigation that would put an end to this chain of
    shooting and killing. The impugned police conduct did not encourage or carry a
    significant risk of unreliability. The evidence gathered was entirely
    consistent with that of other witnesses and the cell phone records. The truth-seeking
    function of the trial would clearly be served by admitting the evidence.

7. Did the trial judge err in finding that the Obeah
    statements did not attract the protection of common law privilege?

[86]

It
    is common ground that the test for common law privilege is that mandated by
Gruenke
and applied by the trial judge. For convenience, we repeat here
    the four factors that are to be considered:

(1)  The communications must originate in a
confidence
that they will not be disclosed;

(2)  This element of
confidentiality must be
    essential
to the full and satisfactory maintenance of the relation between
    the parties;

(3)The
relation
must be one which in the
    opinion of the community ought to be sedulously
fostered
; and

(4)  The
injury
that would inure to the
    relation by the disclosure of the communications must be
greater than the
    benefit
thereby gained for the correct disposal of litigation.

[87]

We
    observe at the outset that in
Gruenke
, the majority of the Supreme
    Court rejected, at p. 289, the argument that the
Charter
protection of
    freedom of religion requires the extension of a
prima facie
privilege:

The extent (if any) to which disclosure of
    communications will infringe on an individual's freedom of religion will depend
    on the particular circumstances involved, for example: the nature of the
    communication, the purpose for which it was made, the manner in which it was
    made, and the parties to the communication.

[88]

We
    are not persuaded that the trial judge erred in his application of the
Gruenke
test.

[89]

The
    trial judge found that the appellants had an expectation of confidentiality. However,
    we note that as they did not testify as to any expectation of confidentiality,
    that finding appears to be a generous one.

[90]

We
    see no basis for interfering with the trial judges findings with respect to
    the remaining three factors. We need not repeat those findings here in detail.
    The appellants motivation when participating in the Obeah sessions was not
    sincere participation in a religious rite or service but rather an attempt to
    escape detection and prosecution for a serious offence. The appellants participation
    rested on an effort to obstruct law enforcement officials and get away with the
    commission of a crime. The harm to the public interest that would result from
    suppressing the evidence far outweighed any harm to the Obeahman-adherent
    relationship.

8. Did the trial judge err in concluding that the Obeah
    statements should not be excluded under the dirty tricks doctrine or as a
    violation of s. 7 of the
Charter
?

[91]

The
    trial judge gave brief reasons for rejecting the dirty tricks argument. He
    appears to have proceeded on the assumption that the appellants failure to
    make out a violation of freedom of religion determined the dirty tricks claim.

[92]

We
    respectfully disagree with that approach. While the
Charter
value of
    freedom of religion is an important component of the dirty tricks and s. 7
    analysis, those issues must be specifically considered and are not subsumed by
    the rejection of the s. 2(a) claim.

(a) Dirty tricks

[93]

The
    dirty tricks doctrine originated in the concurring reasons of Lamer J. in
Rothman
    v. The Queen
, [1981] 1 S.C.R. 640 where he stated that there are
    circumstances in which a statement of the accused ought to be excluded because
    the conduct of the police is so egregious that admitting the evidence would
    bring the administration of justice into disrepute or is so appalling as to
    shock the conscience of the community. Lamer J. explained how to approach
    statements induced by police trickery in the following often-quoted passage, at
    p. 697:

The judge, in determining whether under the circumstances the
    use of the statement in the proceedings would bring the administration of
    justice into disrepute, should consider all of the circumstances of the
    proceedings, the manner in which the statement was obtained, the degree to
    which there was a breach of social values, the seriousness of the charge, the
    effect the exclusion would have on the result of the proceedings. It must also
    be borne in mind that the investigation of crime and the detection of criminals
    is not a game to be governed by the Marquess of Queensbury rules. The
    authorities, in dealing with shrewd and often sophisticated criminals, must
    sometimes of necessity resort to tricks or other forms of deceit and should not
    through the rule be hampered in their work. What should be repressed vigorously
    is conduct on their part that shocks the community.
That a police officer
    pretend to be a lock-up chaplain and hear a suspect's confession is conduct
    that shocks the community
; so is pretending to be the duty legal-aid
    lawyer eliciting in that way incriminating statements from suspects or accused;
    injecting Pentothal into a diabetic suspect pretending it is his daily shot of
    insulin and using his statement in evidence would also shock the community; but
    generally speaking, pretending to be a hard drug addict to break a drug ring
    would not shock the community; nor would, as in this case, pretending to be a
    truck driver to secure the conviction of a trafficker; in fact, what would
    shock the community would be preventing the police from resorting to such a trick.
    [Emphasis added.]

[94]

Lamer
    J. envisioned a high threshold for finding something to be a dirty trick
    requiring the exclusion of evidence. He explicitly noted that investigations
    are not dainty, polite affairs and that often the police must use creativity
    and subterfuge when dealing with criminals. Deceit on its own is not enough to
    constitute a dirty trick. The behaviour must be so egregious that it shocks the
    conscience of the community. In other words, the public would be outraged that
    police were engaging in such behaviour, even in the pursuit of criminals.

[95]

The
Rothman
dirty tricks analysis was adopted by the Supreme Court in
R.
    v. Oickle
, 2000 SCC 38, [2000] 2 S.C.R. 3. Iacobucci J. held, at para. 65,
    that the specific objective is maintaining the integrity of the criminal
    justice system. Unacceptable police conduct must not be condoned by the
    courts. However, courts should not be too quick to limit police discretion. The
    court stated, at para. 33, that the common law confessions rule has twin goals
    of protecting the rights of the accused without unduly limiting society's need to
    investigate and solve crimes. Thus, a balance must be struck.

[96]

Iacobucci
    J. repeated Lamer J.s examples of dirty tricks: police impersonating either a
    lockup chaplain or legal aid lawyer or injecting truth serum into a diabetic,
    pretending it is insulin. These would be dirty tricks that would be so
    appalling as to shock the conscience of the community.

[97]

In
R. v. Miller
(1991), 5 O.R. (3d) 678 (C.A.), this court applied the
    dirty tricks analysis to consider a police ruse which involved getting a
    suspects employer to secure handwriting samples from the individual. The court
    stated, at p. 689:

There are tricks at the investigation stage that will not be
    found to contravene the principles of fundamental justice and others that could
    be so found. Although it may sound cynical, the jurisprudence on the right to
    silence at a pre-detention stage makes a distinction between tricks and dirty
    tricks.

Dirty tricks are those that would bring the
    administration of justice into disrepute as a result of what was said or done
    by the police authorities in eliciting the statement.

[98]

The
    only case of which we are aware to consider a police ruse involving someone
    posing as a religious adviser is the decision of this court in
R. v. Rowe
(2006),
    208 C.C.C. (3d) 412 (Ont. C.A.). The appellant in
Rowe
had made
    incriminating statements to a man called Carty, a self-styled spiritualist and
    psychic counsellor. Before the robbery, the appellant had been introduced to
    Carty by his aunt who also believed that Carty had Obeah powers. The appellant
    told Carty that he planned to commit crimes and sought Cartys protection.
    Following the robbery and murder, the appellant went to a friends apartment.
    The friend, like appellants aunt and other members of the Jamaican community,
    believed that Carty was a very religious individual possessed of mystical Obeah
    powers. Carty, however, admitted that he was a con man and a charlatan. The
    friend told Carty that the appellant and his confederates had said things
    implicating them in the murder and sought his advice. Shortly after he learned
    of the robbery and fatal shooting, Carty went to the police and was enlisted as
    a police agent. The appellant paid Carty to perform certain rituals and the
    police taped conversations between Carty and the appellant in which the
    appellant made incriminating statements.

[99]

The
    trial judge admitted the appellants statements. He held that the appellants
    purpose in meeting with Carty was to obtain protection from the police, to
    avoid being arrested, and to seek advice on how to flee the country and that
    the purpose of the meeting was not pastoral counselling or repentance. As this
    relationship was a corrupt criminal relationship, not a legitimate religious
    relationship between a religious practitioner and a penitent, there was no
    violation of the appellants freedom of religion nor did the evidence
    constitute a dirty trick.

[100]

This court
    dismissed an appeal from conviction, holding, at para. 56: The use of the
    confessional as a means of helping people overcome their errors by forgiving
    their sins has no application to the facts of this case. The appellant did not
    testify on the
voir dire
as to his religious belief and it appeared
    from the video recordings of the meetings that his sole interest in meeting
    with Carty was to get his assistance in getting out of town and avoiding police
    apprehension (at para. 58). As the appellant had not approached Carty in a
    religious sense and as the entire basis of their relationship was corrupt, the
    statements were properly admitted.

[101]

We agree with
    the appellants that there are many features of
Rowe
that distinguish
    it from this case. However, neither the facts of
Rowe
nor the facts of
    this case amount to the situation posited in
Rothman
of a police
    officer pretending to be a lock-up chaplain to hear a suspect's confession.

[102]

First, the
    appellants were not in custody when they made the Obeah statements. As we will
    explain, that is fatal to their s. 7 claim. In most situations, undercover
    operations prior to detention do not give rise to the same concerns as when the
    suspect is detained.

[103]

Second, to the
    extent that the dirty tricks doctrine is tied to the common law rules relating
    to voluntary confessions, Leon, as an undercover officer, was not a person in
    authority: see
R. v. Grandinetti
, 2005 SCC 5, [2005] 1 S.C.R. 27, at
    para. 37;
R. v. Hodgson
, [1998] 2 S.C.R. 449;
R. v. Singh
,
    2007 SCC 48, [2007] 3 S.C.R. 405, at para. 40.

[104]

Third, as in
Rowe
,
    and as we have stated above in relation to the s. 2(a) and common law privilege
    claims, the appellants corrupt purpose significantly undermines any religious
    element there may have been in their relationship with Leon. Unlike the
    priest-penitent example, and quite apart from any distinction drawn on formal
    differences between the confessional and merely confiding in a religious
    adviser, the appellants did not communicate with Leon to fulfill a religious
    purpose or spiritual need. They were induced to make incriminating statements
    to Leon in the hope that he would use his powers to thwart the police and the
    justice system and to allow them to escape prosecution for a serious crime.

[105]

Fourth, this is
    not a case where admitting the Obeah statements would shock the conscience of
    the community or bring the administration of justice into disrepute. The
    standard for finding that a police investigative technique rises to that level
    is a high one. While many cases speak of the dirty tricks doctrine, few if any
    apply it to exclude inculpatory statements. The ploy used here does not carry
    the same risk of a false confession, as may occur in the Mr. Big scenario,
    where statements are routinely admitted: see
R. v. McIntyre
, [1994] 2
    S.C.R. 480;
R. v. Osmar
, 2007 ONCA 50, 84 O.R. (3d) 321. Mr. Big is
    a label used to describe the police tactic of posing as members of a powerful
    criminal organization that requires its members to have committed a serious
    crime. The suspect, hoping to gain admission or protection from the gang, is induced
    to describe a crime that he or she has committed. In this case, Robinsons and
    Pinnocks motive was to be truthful with the Obeahman to gain his protection.
    By contrast, the Mr. Big suspect can have a strong motive to falsely confess to
    a serious crime to gain admission to the crime familys supposed rewards.

[106]

We conclude,
    accordingly, that the trial judge did not err when he found that the Obeah
    statements should not be excluded under the dirty tricks doctrine.

(b) Section 7

[107]

We are not
    persuaded that s. 7 of the
Charter
has any application to this case.
    Even if it does, at best it may subsume dirty tricks as an aspect of the
    protection extended by s. 7 and does not add anything substantive to the dirty
    tricks analysis.

[108]

The reason s. 7
    has no application is that at the time they made the Obeah statements, the
    appellants were not detained or in a situation that was tantamount to
    detention:
R. v. Hart
, 2012 NLCA 61, 327 Nlfd. & P.E.I.R. 178, at
    para. 198.  In
R. v. Hebert
, [1990] 2 S.C.R. 151, at p. 184, the
    Supreme Court held that while s. 7 protects the right to silence, [t]he
    jurisprudence relating to the right to silence has never extended protection
    against police tricks to the pre-detention period. The rationale is that, generally,
    the subject of a pre-detention undercover operation is not in the control of
    the state and thus there is no need to protect him from the greater power of
    the state.

[109]

In
McIntyre
,
    the Supreme Court considered a Mr. Big scenario. McIntyre was arrested for
    murder but refused to talk to police or to an undercover officer placed in his
    cell. He was released. Months later, the same officer set up a chance meeting
    and initiated a Mr. Big scenario. Eventually, McIntyre confessed to the murder.
    Dismissing McIntyres appeal, the Supreme Court released a one-paragraph
    decision. McIntyre had argued that his statements made to undercover police
    officers after he had been released were inadmissible under s. 7 of the
Charter
.
    The court held that s. 7 was not applicable because the accused had not been
    detained at the relevant time.

[110]

In
Osmar
,
    this court cited
McIntyre
when discussing whether the appellants s. 7
    right to silence had been violated by the admission of the Mr. Big statements.
    In a thorough exploration of the issue, this court concluded that the s. 7
    right to silence applies only after detention, citing the Supreme Courts
    holdings in
McIntyre
and
Hebert
. The court held, at para. 42:

This appellant was not under the control of the state nor was
    the context such as to require that he be protected from the greater power of
    the state. The appellant's assertion that elicitation and trickery are
    sufficient to require
Charter
scrutiny is not supportable by the
    authorities or by a reasoned extension of the principles in those cases.

In any event, even if s. 7 did apply, it is difficult
    to see what it adds to the common law dirty tricks doctrine. As we reject the
    contention that the Obeah statements should have been excluded on the basis
    that they were obtained as a result of a dirty trick, any s. 7 claim must also
    fail.

9. The Obeah statements were properly admitted

[111]

The trial judge
    did not err in admitting the Obeah statements. The Obeahman operation did not
    violate the appellants rights to freedom of religion or equality, and even if
    it did, the evidence would have been admitted under s. 24(2). The Obeah
    statements were not protected by common law privilege. Finally, the Obeahman
    operation did not constitute a dirty trick and did not breach the appellants
    s. 7 rights.

ISSUE 2: Alleged Errors in the Jury Charge Related to the
    Obeah Evidence

[112]

The appellants
    submit that the trial judge erred in his charge to the jury with respect to the
    Obeah evidence by:

·

instructing the jury to disregard defence counsels references to
    the phenomenon of false confessions;

·

stating that the Obeah statements were admissible and not protected
    by the usual rules of confidentiality that govern communications with religious
    or spiritual advisors; and

·

preventing defence counsel from suggesting that Coopers
    attendance at the trial after he testified indicated impropriety on Coopers
    part.

[113]

We see no merit
    in these submissions.

[114]

As noted above,
    the Obeah statements did not give rise to a risk of false confession: at all
    times, Cooper urged the appellants to tell him the truth and there was nothing
    in the evidence to support an inference of false confession. If anything, the
    appellants had a strong motive to be truthful with Cooper so that they would
    receive his protection.

[115]

The trial
    judges comment as to the admissibility of the Obeah statements was simply a
    reflection of the ruling he had made. The trial judge did not err in telling
    the jury that he had considered and rejected the submission that the statements
    were privileged. He gave no details as to the basis of his ruling and we do not
    agree that this comment unfairly disparaged the appellants communications with
    Cooper.

ISSUE 3: The
In Camera
Hearing

1.
Introduction

[116]

The issues
    arising from the
in camera
hearing have their origin in an application
    to stay the proceedings, or obtain some other remedy, as a result of the manner
    in which the prosecution handled the evidence of Andrew Brown. A somewhat
    detailed chronology of events is necessary to appreciate these grounds of
    appeal.

[117]

In his initial
    statement to the police, Brown said that he was at a bus stop and heard shots
    but had no involvement in the activities surrounding the shooting. By the
    preliminary inquiry, he had changed his story and testified that he was in a
    vehicle with the appellant Pinnock at Lisa St. However, he believed that they
    were simply acting as lookouts for a drug deal. The appellants alleged that in
    April and May 2005, Brown was subjected to considerable pressure and improper
    threats or inducements to implicate the appellants in the shooting.

The October 8, 2007 meeting

[118]

On Saturday,
    October 8, 2007, Brown met with Crown counsel Stephen Sherriff and Detective
    John Schultz to review his previous statements and prepare him to testify at
    trial. During this interview, Brown dramatically changed his story. Most
    importantly, he now claimed that he lied about the drug deal and he gave the
    account that is summarized earlier in these reasons. This account is more
    damaging to the appellants and undermines a potential defence that Pinnock may
    have had: that he was at Lisa St. simply in relation to a drug deal. During the
    October 8 interview, only Mr. Sherriff was taking notes. The interview was not
    tape-recorded. The following day, Detective Schultz took a handwritten
    statement from Brown that was disclosed to the defence. This interview was also
    not video or tape recorded. Given the change in Browns testimony, the history
    of the prosecution involvement with Brown, and the fact that the October 8 and
    9 interviews were not recorded, the defence applied for a stay of proceedings
    or some other remedy, such as the exclusion of Browns evidence.

The voir dire

[119]

Detective
    Schultz testified on the
voir dire
concerning the stay application. He
    recalled that Mr. Sherriff confronted Brown about the fact that he had lied at
    the preliminary inquiry and therefore the deal was off. The lie concerned
    what Brown had told his parents about what he knew about the events at Lisa St.
    The deal was an agreement not to charge Brown with murder. Sherriff said that
    the decision whether or not to charge Brown with murder would be made after the
    trial.

[120]

Brown also
    testified on the
voir dire
and confirmed much of what Detective
    Schultz had said about his change in testimony and there being no deal. Brown
    testified that the question of whether or not he would be charged with murder
    depended on whether he told the truth. Brown had no specific recollection of
    what Mr. Sherriff asked him during the October 8 interview.

The disclosure request

[121]

Defence counsel
    sought disclosure of the notes Mr. Sherriff had taken during the October 8
    interview. The Crown objected to disclosure on the basis that the notes were
    subject to work product privilege. The trial judge stated that he would
    review the notes
in camera
to decide what should be disclosed. After
    doing so, the trial judge found that he needed input from the Crown as to the
    nature and meaning of the notes and asked Mr. Sherriffs co-counsel, Cameron Watson
    to attend the
in camera
hearing. Defence counsel did not object to
    this procedure. A court reporter was present.

[122]

In their submissions
    at the end of the
in camera
procedure, the appellants trial counsel
    explained why they had not objected. Counsel for Robinson put it this way:
    Counsel [left the courtroom] on the understanding and the trust we placed in
    this court that the only issue that would be discussed would be the issue of
    whether or not the Crown notes were disclosable. Counsel for Pinnock put it
    this way:

And as I understood it, I wont  Ill speak for myself, but I
    assume I speak for the others, our understanding was it was to assist Your
    Honour in your understanding of the notes themselves, as to whether they were
    work product, or something that could be disclosed.

And, as I understood it, that was the only issue that was being
    discussed in-camera was simply is it a work product, and I dont know if Your
    Honour was looking at an abbreviation, and wanted clarification as to what that
    particular abbreviation meant, that we had moved into this issue simply of the
    notes being disclosed.

And its really the last two [statements by the trial judge
    that the change by Brown was spontaneous and Mr. Sherriff had done nothing
    wrong] that raise the biggest concerns for myself and my client because, as I
    understood what we were doing, once Your Honour was going to determine if they
    were work product, we would then go back into the stay application, and based
    on whether we got notes or not, we would be able to make submissions, provide
    case law as to whether there was any basis with respect to the misconduct
    allegations on this meeting with Mr. Brown.

The in camera hearing

[123]

The hearing with
    Mr. Watson present began with a discussion of the notes and what was meant by
    certain comments. At one point, there was a short discussion about the
    substance of Browns evidence and the fact that parts of it were hearsay and
    Brown would have to be told not to get into that area. The trial judge told Mr.
    Watson that he believed the notes were work product but he anticipated problems
    when he informed defence counsel, as they would want an opportunity to argue
    otherwise. The trial judge stated that he would just tell counsel that the
    notes would be sealed and they could raise the issue in the Court of Appeal.

[124]

The session then
    continued as the trial judge reviewed the part of the notes where Mr. Sherriff dealt
    with Browns change in his story about the drug deal. The trial judge stated
    that he wanted to know how the change in story came about because if Mr.
    Sherriff suggested how Brown should change his story, that would be improper.
    Mr. Watson said that he was sure Mr. Sherriff would not have done anything
    improper. The trial judge stated: Well, I dont think it was either, but
    thats obviously the question that arises in my mind. After reviewing more of
    the notes, the trial judge was quite satisfied that this is all work product
    and none of it should go to the defence; however, he was still troubled by the
    issue and he decided he would hear from Mr. Sherriff
in camera
.

[125]

After a brief
    adjournment, Mr. Sherriff joined the
in camera
hearing and was questioned
    by the trial judge as to why Brown changed his testimony. Mr. Sherriff said it
    was spontaneous on Browns part and gave his version of the October 8 meeting,
    apparently without reference to the notes. After this exchange, the trial judge
    stated that he was satisfied that Mr. Sherriffs answers were accurate and
    there were no grounds for disclosing the notes to the defence.

The trial judges report to the appellants in open court

[126]

The trial judge
    then returned to the courtroom and told counsel that he could give his ruling
    with respect to disclosure of Mr. Sherriffs notes. The trial judge stated that
    there were a couple of areas where he wanted some explanation from Mr.
    Sherriff. He had received the explanation, accepted it, and found that there
    has been nothing improper done by him, that all of his notes, in totality, are
    work product and are therefore privileged and will not be delivered to the
    defence. He went on to say that he could confirm that Browns confession that
    the drug deal story was a lie was initiated by Brown himself, and that Mr.
    Sherriff was as surprised as anyone about the change in story. The trial judge
    went on to say:

So, it wasnt induced out of him, in my view, by anything Mr.
    Sherriff said or did. And it came voluntarily and without prodding or without
    suggestion from Mr. Sherriff during the course of that conversation.

[127]

The trial judge
    also informed the parties that Mr. Sherriff had turned over to another Crown
    counsel the decision of how to deal with Brown after the trial.

[128]

At this point,
    defence counsel objected to the procedure. In their view, the
in camera
hearing had gone beyond the issue of disclosure of the notes. The appellants
    had been excluded from a part of the trial while the trial judge decided the
    very issue on the stay application. The trial judge disagreed, stating that he
    had determined that the notes were work product and therefore would not be
    disclosed and that was all he did.

[129]

Counsel brought
    a further application for a mistrial and a stay of proceedings and asked the
    trial judge to recuse himself. As a result, the transcript of the
in camera
proceedings was disclosed to the appellants. Counsel for the appellants made
    lengthy submissions on the original stay application and the new grounds as a
    result of the
in camera
hearing. In the course of those submissions,
    the trial judge ordered that Mr. Sherriffs notes relating to why Brown changed
    his story be disclosed to the defence. The trial judge later offered counsel
    the opportunity to question Mr. Sherriff on the issue of how Brown changed his
    story but he would not allow counsel to test [Mr. Sherriffs credibility].
    The appellants chose not to question Mr. Sherriff.

The trial judges reasons

[130]

The trial judge
    delivered written reasons dismissing the application as it related to the
    alleged impropriety in the
in camera
hearing. The trial judge set out
    the well-known test for reasonable apprehension of bias in
Committee for
    Justice and Liberty et al. v. Natural Energy Board et al.
, [1978] 1 S.C.R.
    369 and
R. v. S. (R.D.)
, [1997] 3 S.C.R. 484. The trial judge
    acknowledged that he should not have made the finding on the
in camera
hearing that Mr. Sherriff did nothing wrong in his handling of Browns
    interview. However, he told the parties in strong terms that he had put aside
    the view expressed in those remarks and would decide the issue objectively and
    fairly. The trial judge, at paras. 30-33 of his ruling,  concluded as follows
    with respect to the recusal application:

The Court heard Mr. Sherriffs comments as to how the change in
    Mr. Browns potential evidence came about. The Court then relayed these
    comments to the Defendants. It must be remembered that Mr. Brown has changed
    his version of events on numerous occasions. One more version could not have
    come as a surprise to anyone. There is no evidence that any of Mr. Browns
    previous changes were in any way influenced by Mr. Sherriff. This Court has
    indicated it has little faith in anything Mr. Brown says. It has said several
    times it will be rendering a strong
Vetrovec
warning to the jury. It
    is still open to the possibility that it will exclude Mr. Brown from giving
    evidence at all. This is a possible result on the stay application, still to be
    decided.

The words of this Court following the
in camera
hearing should not be taken in isolation. They must be ...considered in the
    context of the circumstances, and in light of the whole proceeding.
S.(R.D.)
at para. 141. In
DSouza
, the Ontario Court of Appeal said that the
    threshold for the appearance of bias is high. To find bias or the appearance of
    it requires a thorough and careful analysis of the entire proceedings. The
    premature views of this Court, now put aside, must be considered in the context
    of all of the circumstances of the case. In the context of this entire case,
    the Courts comments on how yet one more version of an ever changing story of
    one witness came about will hardly be determinative of the ultimate outcome.
    The jury, of course, has not heard or seen any of this. If the witness is
    allowed to give his testimony, the tortuous history of this many lies will be
    thoroughly explored and no doubt laid bare in cross-examination. The Court will
    then issue an appropriately strong warning about the danger of accepting such
    testimony.

In all of these circumstances, this Court finds that a
    reasonable person, apprised of all of the facts and having thought the matter
    through and viewing it realistically, would conclude that this Court would
    decide the issue fairly.

The Court declines to recuse itself and therefore dismisses the
    motion for recusal.

[131]

The trial judge
    then turned to the mistrial application, which was based on the fact that the
    appellants right to be present at their trial as guaranteed by s. 650(1) of
    the
Criminal Code
was abrogated. The trial judge held that the
in
    camera
hearing was not intended to be part of the trial for the purpose of
    s. 650(1). When Crown counsel provided the explanation of what his notes meant,
    the trial judge disclosed that fact to the appellants. It was still not
    evidence in the trial or the
voir dire.
Further, any potential harm to
    the appellants had been remedied by disclosure of the transcript of the
in
    camera
hearing. As the trial judge said:

The recollections of Mr. Sherriff, given in response to
    questions from the Court, were elicited by the Court and repeated to the
    Defendants and their counsel because they are potentially highly relevant to
    the main issue on the stay application. With the release to them of a
    transcript of the
in camera
hearing and the portion of Mr. Sherriffs
    notes that prompted the responses, they now have all the information and
    documentation that the Court has touching on what happened
in camera
and how it happened. Thus, as in
Chan
, the potential harm to the
    accused has been remedied by these disclosures.

[132]

Accordingly, the
    trial judge dismissed the application for a mistrial.

[133]

Prior to release
    of the written reasons respecting the recusal and mistrial application, the trial
    judge dismissed the application for a stay of proceedings or to exclude Mr.
    Browns evidence. The trial judge did not provide any reasons. The appellants
    do not challenge the trial judges ruling on those issues.

2. Analysis of the
in
    camera
arguments

[134]

The appellants
    advance two related arguments concerning the conduct of the
in camera
hearing. First, they submit that the trial judge erred in conducting part of
    the trial in the absence of the appellants in violation of s. 650(1) of the
Criminal
    Code
. Second, the manner in which the trial judge dealt with the issues
    arising from the
in camera
hearing raised a reasonable apprehension of
    bias and the trial judge should have recused himself. Mr. Derstine, who argued
    these grounds of appeal for the appellants, primarily relied upon the breach of
    s. 650(1) and made only brief submissions on reasonable apprehension of bias.

Violation of s. 650 of the Criminal Code

[135]

In this court,
    Crown counsel concedes that when the
in camera
hearing went beyond the
    issue of work product privilege into consideration of the merits of the
    application for a stay of proceedings or exclusion of Browns evidence, there
    was a violation of s. 650(1) of the
Criminal Code.
The Crown submits,
    however, that the curative provisions of s. 686(1)(b)(iv) of the
Criminal
    Code
should be applied and this ground of appeal dismissed. We agree with
    that position.

[136]

Section 650(1)
    provides that an accused shall be present in court during the whole of his or
    her trial. There are exceptions. In particular, ss. (2)(b) provides that the
    court may permit the accused to be out of court during the whole or any part of
    his trial on such conditions as the court considers proper. The trial judge was
    of the view that the
in camera
hearing, to the extent that it dealt
    only with assisting the trial judge in understanding Mr. Sherriffs notes, was
    not part of the trial. Whether or not that is a correct characterization of the
    procedure need not be resolved. Counsel for the appellants consented to the
in
    camera
procedure.

[137]

That consent,
    however, did not extend to dealing with the substance of the motion concerning
    Andrew Brown. To the extent that the discussion with Mr. Watson and the
    questioning of Mr. Sherriff strayed into the disposition of the motion, the
    appellants rights to be present during their trial were infringed. At that
    point, the trial judge was not simply dealing with the notes but was dealing
    with a matter that involved the vital interests of the appellants: see
R.
    v. Hertrich
(1982), 67 C.C.C. (2d) 510 (Ont. C.A.), at p. 539. The
    interchange between trial Crown counsel and the trial judge was part of the
    trial and the appellants could not be deemed to have consented to being absent
    from it. The appellants had a vital interest in the Brown motion and in the
    opinions expressed by the trial judge as to the merits of that motion.

[138]

The real issue
    on this ground of appeal is the application of the curative proviso in s.
    686(1)(b)(iv). That provision gives the court of appeal discretion to dismiss
    an appeal where notwithstanding any procedural irregularity at trial, the
    trial court had jurisdiction over the class of offence of which the appellant
    was convicted and the court of appeal is of the opinion that the appellant
    suffered no prejudice thereby.

[139]

The leading case
    in this province on the application of s. 686(1)(b)(iv) remains the judgment of
    Goodman J.A. in
R. v. Cloutier
(1989), 43 C.C.C. (3d) 35 (Ont. C.A.),
    leave to appeal to the Supreme Court of Canada refused October 19, 1989. In
    that decision, Goodman J.A. held that, given the wording of the provision, a
    fundamental consideration is whether the appellant was prejudiced. He
    explained, however, that even if there were no prejudice to the appellant, the
    circumstances of the exclusion may be so serious as to require a new trial; for
    example, where a trial judge excludes an appellant intentionally after it has
    been brought to his or her attention that such exclusion is contrary to the
    provisions s. 650(1). In such a case, the court of appeal may exercise its discretion
    to allow the appeal so that justice will not only be done but will also be seen
    to be done: see
Cloutier
, at pp. 51-52. Thus, in
R. v. Laws
(1998), 41 O.R. (3d) 499 (C.A.) the court refused to apply the proviso where
    the trial judge had intentionally and repeatedly excluded the appellant from
    part of the trial. In that case, both the appellant and his counsel had been
    excluded from private meetings between the trial judge and Crown counsel. In
    addition, because no transcript was kept, this court was unable to determine
    what went on during the
in camera
meetings. As the court said, at p.
    525:

The perceived fairness of the criminal justice system is its
    most vital characteristic. Public confidence requires public scrutiny wherever
    possible. Private trials which exclude the accused are antithetical to this
    core value. Where the circumstances of the exclusion of the accused are such as
    to inflict significant damage on the appearance of justice, the question is not
    whether there is prejudice to the accused. Rather, the issue is the harm to the
    criminal justice system itself. In such cases the court should refuse to apply
    this proviso.

[140]

We are satisfied
    that the appellants in this case were not prejudiced by their exclusion from
    the
in camera
hearing, having regard to the several remedial steps
    taken by the trial judge at the time. A court reporter was present during the
    entire
in camera
hearing and that transcript was disclosed to the
    appellants. The portion of Crown counsels notes that were the subject of the
    hearing were disclosed to the defence. The trial judge permitted the recall of
    the witnesses who had testified on the stay application (Brown and Detective
    Schultz) and said he would allow the defence to call any other evidence.
    Importantly, the trial judge said he would permit questioning of Mr. Sherriff
    subject to limitations on the scope of the examination. The appellants objected
    to those limitations and did not take up the offer to question Mr. Sherriff.
    Nevertheless, the offer was made. Whether the limitations would have hindered
    the appellants in their stay motion, either relating to Brown or to the
    improprieties of the
in camera
hearing, will never be known because
    the appellants declined the offer.

[141]

Finally, in
    considering prejudice, it is significant that the appellants on appeal do not
    challenge the trial judges ultimate ruling permitting Andrew Brown to testify.
    Thus, though armed with all of the information from the
in camera
hearing and the subsequent proceedings, the appellants do not suggest that the
    trial judge erred or that their ability to argue that motion was impaired.

[142]

We turn now to
    the question of whether this is a case where the court should exercise its
    discretion against dismissing the appeal because of harm to the system itself.
    In our view, the chief concern on this branch of the argument turns on whether
    there is a perception that the trial judge prematurely decided the issues
    relating to Browns testimony and the stay application against the appellants
    during the
in camera
hearing. This aspect of the application of s.
    686(1)(b)(iv) necessarily overlaps with the appellants submission that the
    trial judge should have recused himself because of a reasonable apprehension of
    bias. The test for reasonable apprehension of bias from the dissenting reasons
    of de Grandpré J. in
Committee for Justice and Liberty
, at p. 394 is:

[T]he apprehension of bias must be a reasonable one, held by
    reasonable and right minded persons, applying themselves to the question and
    obtaining thereon the required information. . . . [The] test is "what
    would an informed person, viewing the matter realistically and practically  and
    having thought the matter through  conclude. . . ."

[143]

We have kept
    that test in mind in considering whether there was any harm to the system
    itself because of the conduct of the
in camera
hearing.

[144]

The trial judge
    admitted that he erred in finding that Mr. Sherriff did nothing wrong in his
    handling of the Brown interview. The trial judge assured counsel that Im not
    relying on what [Mr. Sherriff] told me for the purpose of determining the stay
    application. I never had that intention whatsoever. Counsel seemed to accept
    that the trial judge would be able to do so. The trial judge stated that he was
    able to put aside his prematurely expressed view, and could decide the
    substantive issue objectively and fairly. As we have said, the appellants do
    not challenge the correctness of the ruling. The appellants learned about the
    premature finding from the trial judge himself when he returned to open court.
    As the trial judge noted, if Brown were allowed to testify, the chronology of
    his constantly changing story would be put before the jury and the jury would
    be given a strong warning about the danger of relying on his evidence.

[145]

Taking the point
    of view of the informed person viewing the matter realistically and
    practically, we take into account that the parameters of the
in camera
hearing were unclear. After the fact, trial counsel for the appellants were
    sure that they had not agreed to any consideration of the propriety of Mr.
    Sherriffs conduct. Indeed, the trial judge in hindsight agreed that he was
    wrong to find that Mr. Sherriff had not done anything improper. However, it is
    not clear to us how the judge could make a finding on whether the notes should
    be disclosed without considering the propriety of Crown counsels conduct.

[146]

The
in
    camera
procedure was adopted because of the real concern that Crown
    counsels notes were privileged. In their submissions, the parties referred to
    work product privilege. In Canada, the privilege is usually termed litigation
    privilege. Referring to
General Accident Assurance Co. v. Chrusz
(2000),
    45 O.R. (3d) 321 (C.A.), the authors of
The Law of Evidence in Canada
at §14.186 describe litigation privilege as a zone of privacy within which a
    solicitor can prepare for trial without intrusion into his or her thoughts or
    work product: see Alan W. Bryant, Sidney N. Lederman, and Michelle K. Fuerst,
The
    Law of Evidence in Canada
, 3d ed. (Markham ON: Lexisnexis, 2009). The
    increasingly broad scope of discovery in civil cases, and of Crown disclosure
    in criminal cases, has necessarily narrowed the scope of litigation privilege.
    As Carthy J.A. said in
Chrusz
,
at p.331:

In effect, litigation privilege is the area of privacy left to
    a solicitor after the current demands of discoverability have been met. There
    is a tension between them to the extent that when discovery is widened, the
    reasonable requirements of counsel to conduct litigation must be recognized.

[147]

An important
    limit to the scope of litigation privilege is explained in
The Law of
    Evidence in Canada
at §14.203. The litigation privilege cannot be invoked
    to protect from disclosure evidence of the claimant partys abuse of process
    or similar blameworthy conduct. As Fish J. said in
Blank v. Canada
    (Minister of Justice)
, [2006] 2 S.C.R. 319, at para. 45:

Even where the materials sought would otherwise be subject to litigation
    privilege, the party seeking their disclosure may be granted access to them
    upon a
prima facie
showing of actionable misconduct by the other party
    in relation to the proceedings with respect to which litigation privilege is
    claimed. Whether privilege is claimed in the originating or in related
    litigation, the court may review the materials to determine whether their
    disclosure should be ordered on this ground.

[148]

Thus, in this
    case, the trial judge was right to review the notes to determine whether Crown
    counsels notes were subject to privilege and whether disclosure should
    nevertheless be ordered because of misconduct by Crown counsel. Of necessity,
    this initial review had to take place in private. After the first stage of the
    review, the trial judge required input from Mr. Watson. At the second stage, he
    was still uncertain about whether the documents were privileged, for the very
    reason identified in
Blank
. There would be no privilege if there was
    misconduct. Hence, the trial judge embarked on the third and contentious stage
    of questioning Mr. Sherriff. It seems apparent now that the parties did not
    fully appreciate that a finding of whether the privilege existed would entail
    at least a
prima facie
determination of whether Mr. Sherriff had
    improperly threatened the witness. The trial judge made that determination and
    he disclosed it to the parties. He also told counsel that he would not rely
    upon anything Mr. Sherriff said during the
in camera
hearing in
    determining the substantive motion concerning Andrew Browns testimony.

[149]

In our view, a
    reasonable person, informed of the nature of litigation privilege and the need
    for the trial judge to make the determination without the presence of the
    appellants and their counsel, would not conclude that there was a reasonable
    apprehension of bias. Trial judges are often called upon to make rulings and
    then disabuse their minds of the evidence or information they have heard during
    the
voir dire
. Given the safeguards in the system and the remedial
    steps taken by this trial judge, especially disclosure of the notes and the
    transcript of the
in camera
hearing, we are satisfied that s.
    686(1)(b)(iv) can be applied in this case.

Reasonable apprehension of bias

[150]

In the course of
    discussing the application of the proviso in s. 686(1)(b)(iv), we have noted
    the overlap with the allegation of reasonable apprehension of bias. As Mr.
    Derstine said in his submissions, many of the same considerations apply to bias
    as apply to the perception of fairness under the proviso. We are satisfied that
    the appellants did not demonstrate that the trial judge displayed a reasonable
    apprehension of bias.

[151]

We would not
    give effect to this ground of appeal.

ISSUE 4: Failure to Sever Welshs Trial

1. Introduction

[152]

Before dealing
    with the ground of appeal concerning Welshs unsuccessful applications for
    severance, we set out more of the evidence; in particular, the cell phone and
    other evidence, independent of Brown and McLean, linking Welsh to the scene of
    the shooting. This evidence is of some importance in considering whether a
    joint trial resulted in any injustice to Welsh, since part of Welshs argument
    on this ground of appeal hinges on the persuasive forensic value of the
    Robinson statements as compared to the evidence properly admissible against
    Welsh.

Summary of the cell phone evidence with respect to Welsh

[153]

On October 15,
    2004, six days after the shooting, Welsh was stopped while driving his black
    Chevrolet Cavalier. In the car, the police found two cell phones, including one
    with the number (647) 880-3503. The subscriber of this cell phone was Welshs
    mother. His father was responsible for paying the account. Service was provided
    by Telus. Pinnock was linked to a Fido cell phone and Robinson linked to a
    Rogers cell phone. There were numerous calls between all three cell phones
    associated with the appellants on the night of October 9 between 8:00 p.m. and
    11:08 p.m., bracketing the shooting shortly after 10:00 p.m. The summary below
    assumes the appellants were using the cell phones associated with them.

[154]

Around 8:30
    p.m., Welsh and Pinnock left Welsh and Robinsons Toronto home at 27 Ludgate
    and moved towards Lisa St in Brampton. By 9:00 p.m., Welsh and Pinnock were
    very close to Lisa St. Also at 9:00 p.m., Welsh called the landline at 27
    Ludgate; he received a call from Robinson at 9:10 p.m.. By 9:15 p.m., Robinson
    was moving away from 27 Ludgate and heading towards Brampton. Robinson received
    a call from Welsh at 9:22 p.m.. By 9:30 p.m., all three appellants were near
    Lisa St. Assuming Browns testimony on this point to be correct, Welsh was now
    in his black Cavalier with Robinson, and Brown was with Pinnock in the van. In
    addition to the cell phone evidence, independent eye-witnesses placed a black
    Cavalier at the scene of the shooting. At 10:26 p.m., Robinson called Pinnock.
    By this time they were both moving away from Lisa St. Assuming the appellants
    had not switched places, Welsh was with Robinson in the black Cavalier at this
    time and Brown was with Pinnock. In summary, the cell phone evidence places the
    three appellants converging on the scene of the shooting and leaving the scene
    after the shooting.

2. The appellants position

[155]

The appellant
    Welsh submits that the trial judge erred in refusing to sever his trial from
    that of his co-appellants. The argument presented at trial was that Welsh would
    suffer irreparable prejudice because of the admission of Robinsons statements
    to Cooper. In those statements, Robinson identified Welsh as the person who
    called him to the scene of the killing and to whom Robinson delivered the gun
    used by Welsh in the shooting. Welsh submits that those statements would not be
    admissible at a trial in which only Welsh was tried. We refer to this as the
    Improper Use Argument.

[156]

On appeal, Welsh
    somewhat reframed the basis for severance. He argues that once the jury was
    satisfied of the guilt of the co-appellants, especially Robinson, on the basis
    of evidence that was largely inadmissible against him, the jury would
    inevitably find him guilty, irrespective of the weakness of the Crown case
    against him. This argument flows from the theory that once the jury concluded,
    based on the statements to Cooper, that Welsh had called Robinson and Robinson
    had then attended at the scene with the gun, there was nothing left to litigate
    with respect to Welsh. In other words, using the statements against Robinson, a
    permitted purpose, would lead to the conviction of Welsh. The jury could not
    convict Robinson of being a party to murder unless they were satisfied beyond a
    reasonable doubt that he received a call from Welsh and in response to that
    call brought the gun to Welsh, which Welsh used in the shooting. By this
    argument, Welsh seeks to avoid the possible mitigating effects of the editing
    and the limiting instructions. We refer to this as the Proper Use Argument.

3. The severance application

[157]

Trial counsel
    for the appellant applied for severance at various stages of the trial,
    beginning with a pre-trial motion. During the argument of the first motion, the
    trial judge raised the question of editing the Obeahman tapes to reduce the
    prejudice to Welsh. In the end, the trial judge adjourned the severance
    application. The application would be renewed several more times during the
    trial.

[158]

The first such
    occasion followed the opening by Crown counsel. In the course of the opening,
    counsel referred to statements Robinson made to Cooper and Brown in which he
    identified Welsh as the recipient of the gun and as one of the shooters.
    Defence counsel submitted that the possibility of minimizing prejudice to Welsh
    through editing had been lost as a result of Crown counsels opening. Defence
    counsel did not suggest that Crown counsel had acted improperly. It seems that
    Crown and defence had jointly reached the conclusion that editing was not
    feasible. Be that as it may, after the trial judge dismissed the motion for
    severance at this stage, defence counsel stated that he had instructions from
    his client to consider editing.

[159]

The severance
    motion was briefly renewed in the context of edits to the testimony of Brown.
    According to Brown, Robinson told him that Welsh had been one of the shooters.
    Crown and defence appeared to agree that Browns testimony could not be edited
    to remove reference to Welsh, apparently because this part of Browns account
    was essential to Robinsons position. Counsel for Welsh renewed the severance
    application after the cross-examination of Brown by counsel for Robinson,
    during which it was suggested that the statements by Robinson to Brown were
    true. Following argument, the trial judge dismissed the application.

[160]

After reviewing
    the applicable principles, the trial judge referred at some length to this
    courts decision in
R. v. Olah
(1997), 33 O.R. (3d) 385. In that case,
    the trial judge had dismissed the severance application and sought to reduce
    any prejudice through judicious editing of the videotape evidence. This court
    upheld that trial judges decision.

[161]

The trial judge
    in this case held that, by adopting a similar procedure, he could balance the
    fair trial rights of all of the accused, including Welsh, with the Crowns
    responsibility to prosecute violent crime. As he said at para. 28 of his
    ruling:

In my view, the evidence heard to this point in the trial from
    Brown and the anticipated evidence from the undercover officer playing his
Obeahman
role is less powerful than that confronting Lesage J. in
Olah
. Thus,
    an editing/limiting instruction approach should be sufficient to produce a fair
    and balanced result for the competing interest in this case.

[162]

The trial judge
    left it open to Welsh to renew his application if circumstances changed. The
    parties continued the process of editing the Obeahman tapes. While the tapes
    continued to include Robinsons assertion that he had brought a gun to the
    murder scene at Welshs request, his reference to Welsh actually participating
    in the shooting was edited out.

[163]

Welsh renewed
    the application for severance one last time after the closing addresses. This
    application was based on the fact that counsel for both co-appellants had
    treated the Obeah statements as credible, as a foundation for the argument that
    their clients were guilty only of manslaughter. The trial judge dismissed the
    application.

[164]

Throughout the
    trial and in his charge to the jury, the trial judge repeatedly warned the jury
    that Robinsons statements to Brown and Cooper were not evidence against Welsh.

4. Analysis of the severance
    issue

[165]

As we have said,
    there are two prongs to the severance argument. First is the position advanced
    at trial that there was irreparable prejudice to Welsh because of the
    likelihood that the jury would make improper use of Robinsons statements to
    Brown and Cooper. Second is the argument that there was irreparable prejudice
    in a joint trial because Welshs conviction would flow from a proper use of
    this same evidence to convict Robinson. We do not accept either submission.

a) Improper use of Robinsons statements

[166]

As Mr. Campbell
    fairly submits, if limiting instructions could prevent prejudice to Welsh, the
    instructions given by the trial judge in this case would be sufficient. His
    position is that no instruction could reduce the prejudice to a tolerable level
    and that the only effective way to ensure a fair trial for Welsh was severance.
    He submits that the Robinson statements were particularly prejudicial because
    the jury would attach a great deal of weight to them, especially as they
    affected Welsh. Robinsons statements were made in a solemn, if contrived
    setting, and were about his own brother.

[167]

As we have
    noted, the trial judge relied upon this courts decision in
Olah
. He
    adopted a remedy similar to that used by Lesage J. in
Olah
:
editing the videotape evidence. In
Olah
,
    the prejudice arose from a graphic and detailed account that Olah gave in a
    videotaped interview with the police of his co-accused Rustons involvement in
    the killing of a customer at the gas bar where Ruston worked. Justice Lesage
    edited out many of the most prejudicial parts of Olahs statement, although he
    recognized that parts remained that would cause prejudice to Ruston unless the
    jury were cautioned in very clear and specific terms as to the use that could
    be made of Olah's statements. Speaking for the court at p. 400, Osborne J.A.
    concluded that Lesage J. had properly exercised his discretion:

In my opinion, the trial judge carefully considered all of the
    appropriate factors, including, most importantly, prejudice to Ruston, as a
    result of Olahs comments about him in his police statements. The trial judge
    was alert to the potential for a miscarriage of justice in respect of Ruston
    arising out of Olahs extensive audio-taped and video-taped statements to the
    police. He exercised a discretion that was open to him when he refused Rustons
    application for severance after undertaking extensive editing of the
    statements. This court should not interfere with the exercise of his discretion
    unless we are satisfied that he did not exercise his discretion judicially, or
    that his order refusing the severance application resulted in a miscarriage of
    justice: see
R. v. Litchfield
,
    [1993] 4 S.C.R. 333 at pp. 353-54,
86 C.C.C. (3d) 97 at pp. 113-14,
    and
R. v. Court
(1995), 99 C.C.C. (3d) 237 at p. 259.

I do not think that the trial judge was unmindful of the
    increased potential for prejudice arising from the jury hearing Olahs
    audio-taped statement and hearing and seeing him give his video-taped
    statement. When he commented on the principles applicable to severance
    applications, he did no more than note that the same principles apply when an
    application for severance is based on the prejudicial effect to accused caused
    by the admission into evidence of a statement of a co-accused, in whatever form
    the statement may be received by the jury. I am satisfied that the trial judge
    took account of the medium by which the jury would receive Olahs statements.

[168]

We reach a
    similar conclusion in this case. The principles respecting severance are well
    known and summarized in decisions such as
R. v. Litchfield,
[1993] 4
    S.C.R. 333 and
R. v. Last
, 2009 SCC 45, [2009] 3 S.C.R. 146. A trial
    judge has a great deal of discretion in deciding whether to sever counts or
    accused. Thus, an appellate court should not intervene unless it is satisfied
    that the judge acted unjudicially or that the ruling resulted in an
    injustice: see
Litchfield,
at p. 354.

[169]

The ultimate
    question is whether severance is required in the interests of justice. In a
    case involving severance of accused, the interests of justice require
    considering the accuseds right to be tried on the evidence admissible against
    him. But, they also require considering that justice should be done in a
    reasonably efficient manner and in a way that avoids inconsistent verdicts. In
Last
,
at para. 18, the court identified some
    factors that apply to the severance of counts and accused:

The factors identified by the courts are not exhaustive. They
    simply help capture how the interests of justice may be served in a particular
    case, avoiding an injustice. Factors courts rightly use include: the general
    prejudice to the accused; the legal and factual nexus between the counts; the
    complexity of the evidence; whether the accused intends to testify on one count
    but not another; the possibility of inconsistent verdicts; the desire to avoid
    a multiplicity of proceedings; the use of similar fact evidence at trial; the
    length of the trial having regard to the evidence to be called; the potential
    prejudice to the accused with respect to the right to be tried within a
    reasonable time; and the existence of antagonistic defences as between co-accused
    persons.

[170]

One other consideration,
    identified in
Guimond v. The Queen
, [1979] 1 S.C.R. 960, is whether
    the admissible evidence against the accused seeking severance is substantially
    weaker than the evidence admissible against the co-accused.

[171]

We have not been
    persuaded that the trial judge acted unjudicially in refusing severance based
    on the risk of improper use of the Robinson statements. The trial judge
    resorted to several methods to minimize the prejudice to Welsh. He edited the
    Robinson statements and he gave the jury simple but emphatic instructions about
    the proper use of evidence both during the trial and also in the charge to the
    jury. Finally, he adopted the device of dealing with each accused separately in
    the charge to the jury. Thus, the evidence the jury could use against each of
    the appellants was segregated in the charge to the jury.

[172]

We acknowledge
    that there is always a risk that the jury will not follow the trial judges
    instructions, but that risk was attenuated in this case because of the manner
    in which the trial judge dealt with the evidence.

[173]

We turn first to
    the editing of the Robinson statements. With respect to Browns evidence, the
    trial judge ruled that Brown would not be permitted to testify that Robinson
    told him that Welsh was one of the shooters or that Welsh used the gun to kill
    the deceased. He was, however, permitted to testify that Robinson told him that
    he brought a gun to Welsh.

[174]

With respect to
    the Obeah statements, the editing was substantial. Any reference to Robinson
    having seen Welsh leave the vehicle and shoot the deceased was edited out, as
    was reference to Welsh being one of the shooters. This included editing out
    statements by Robinson that his mother had cleaned the gun after the killing
    and returned it to Welsh. As a result of the editing, the Robinson statements
    were ultimately consistent with Welshs position with respect to Browns trial
    testimony: that while Brown had seen several people participate in the killing,
    he never saw Welsh get out of the Cavalier and shoot the deceased.

[175]

As we have said,
    the trial judge gave clear and emphatic directions about the use to be made of
    Robinsons statements to Brown and Cooper. There are many examples throughout
    the proceedings, including instructions before and during Coopers evidence. In
    addition, the charge to the jury contains a number of clear instructions that
    what Robinson said about Welsh could not be used against Welsh. The following,
    part of the mid-trial instruction given during Coopers evidence, is typical:

And remember my earlier instruction that what one defendant
    says to the Obeahman may be used by you as evidence for or against only the
    speaker. If a defendant mentions another defendant anything the first says
    about the other cannot be used by you as evidence for or against the second.
    However, if the second defendant is also present, as is the case in one tape
    you will hear and see, what one says about the other may be evidence for or
    against the second only if he, the second defendant, adopts or agrees with the
    words of the speaker.

So, just to be specific, anything said by Mr. Robinson or Mr.
    Pinnock cannot be used as evidence for or against Mr. Welsh. Mr. Welsh is not
    seen or heard on any of the tapes, so that all of what you hear and see on the
    tapes cannot be considered by you when deciding his guilt or innocence in this
    matter. And, of course, nothing said by Mr. Robinson about Mr. Pinnock, unless
    he is present and adopts what is said, can be used as evidence for or against
    Mr. Pinnock. And
vice versa
, nothing said by Mr. Pinnock
    about Mr. Robinson is evidence for or against him unless he is present and
    adopts what is said.

[176]

Finally, the
    trial judge adopted the procedure of dealing with the case of each accused
    separately. Thus, in his review of the case respecting Welsh, the trial judge
    referred only to evidence properly admissible against him: largely, the
    testimony of McLean and Brown and the cell phone records. The trial judge
    characterized the case against Welsh as being one based solely on
    circumstantial evidence.

[177]

We also note
    that Crown counsel in his closing address adopted the same format of dealing
    with each accused separately and reiterating the limiting instruction. Counsel
    for the appellant Welsh also did a masterful job of isolating for the jury the
    evidence that was and was not admissible against his client, and pointing out
    the unfairness to Welsh if the jury misused inadmissible evidence.

[178]

We are satisfied
    that the trial judge did not improperly exercise his discretion in refusing to
    sever Welshs trial. He recognized that the risk of prejudice to a fair trial
    arose from the improper use of Robinsons statements to Brown and Cooper posing
    as the Obeahman. He substantially edited the statements to reduce the prejudice
    and then instructed the jury in such a manner as to minimize the prejudice from
    misuse of the remaining evidence that referred to Welsh. For similar reasons,
    we are satisfied that the joint trial did not result in an injustice.

b) Proper use of Robinsons statements

[179]

In the
    alternative, Welsh argues on appeal that even the proper use of Robinsons
    statements would lead to irreparable prejudice. We have set out the argument
    above. In short, the jury would be asked to do the impossible. Through the
    proper use of the Robinson statements they would have found Robinson guilty and
    then have to set that finding aside to consider the case against Welsh. A
    verdict of guilty against Robinson would imply the truth of the Crown case
    against Welsh; the jury must have decided that Welsh did what the Crown alleged.
    Mr. Campbell submits that failure to grant severance undermined the presumption
    of innocence because as a result of the joint trial the conviction of Robinson
    would lead to the conviction of Welsh, irrespective of the strength of the
    evidence against Welsh. In his submissions, Mr. Campbell distinguishes the
    large body of severance case law, including
Olah
, because those cases
    did not involve the problem posed here of the conviction of one accused leading
    to the inevitable conviction of the other accused.

[180]

While it is true
    that most of the severance cases have turned on the problem of improper use of
    evidence inadmissible against the accused seeking severance, that is not true
    of all the cases. An example is the
Guimond
decision from the Supreme
    Court of Canada.
Guimond
involved the problem of misuse of
    inadmissible evidence, in that case a confession by Guimond mentioning his
    co-conspirator Muzard. But, the court also recognized a particular problem in
    that case: that in a two-person conspiracy, it would be difficult for the jury
    to convict Guimond of conspiracy without also finding the only other
    conspirator, Muzard, guilty. Speaking for the majority, Ritchie J., at p. 968,
    referred with approval to the reasons of Bélanger J.A. of the Quebec Court of
    Appeal, who wrote as follows:

However, it is difficult to imagine that, in the same trial,
    the jury could accept as true Guimond's confession that he was guilty of an
    illegal agreement with Muzard, without coming to the same conclusion towards
    the latter, or at least without all other evidence presented by the Crown being
    thereby coloured in the sense of such an illegal agreement, regardless of
    Guimond's and Muzard's denials.

[181]

The court did
    not, however, suggest that there must always be a separate trial in such circumstances.
    Rather, severance may be required where there is a significant imbalance in the
    evidence. As the court said, at p. 981:

I am of the opinion also that, whenever it is apparent that the
    evidence at the joint trial of two alleged co-conspirators is substantially
    stronger against one than the other, the safer course is to direct the separate
    trial of each and this is particularly the case when the prosecution is
    tendering in evidence a damaging statement made by one under circumstances
    which made it inadmissible against the other.

[182]

We do not
    suggest that the relative strength of the prosecution case against various
    accused is the only factor to consider where the conviction of one accused
    implies the conviction of a co-accused. It is, however, an extremely important
    consideration. The reason for that is apparent. Where the case against the
    accused seeking severance is weak and the case against the other accused
    substantially stronger, there is a greater risk that the jury will resort to
    the impermissible reasoning of guilt by association to shore up the case
    against the former.

[183]

This, however,
    is not a case where there was a significant imbalance in the cases against the
    three accused. If interpreted as argued by the Crown, the Obeah statements did
    make a compelling case against Robinson. But, there was also a substantial
    circumstantial case against Welsh in the evidence of Brown and McLean and in
    the cell phone records. While the testimony of Brown and McLean had certain
    frailties, the cell phone evidence was persuasive evidence placing Welsh at the
    scene of the killing, lying in wait for the deceased and then fleeing the scene
    after the killing.

[184]

The appellant
    tries to paint his situation as uniquely prejudiced. However, as Ms. Loubert
    pointed out in her submissions for the Crown, Welshs situation is not unusual
    in cases of multiple accused where the accused are alleged to have played
    different roles. The fate of parties and principal offenders are almost
    inevitably intertwined. Trial judges deal with this problem by instructing the
    jury to deal with each accused separately and only consider the evidence
    admissible against the particular accused. In this case, the trial judge went
    further. As we have pointed out, he did not simply instruct the jury to
    consider the cases against each accused separately. In his charge to the jury,
    he dealt with each accused separately and isolated for the jury the evidence
    they could use to consider the case against the particular accused. We are
    satisfied that the joint trial of Welsh with his co-appellants did not result
    in an injustice.

[185]

For these
    reasons we would not give effect to this ground of appeal.

[186]

We would add
    that we have reached this conclusion without having to consider Ms. Louberts
    interesting argument that there would be no benefit to the appellant from a
    separate trial because the Robinson statements would still be admissible. This
    argument was premised on the theory that the Crown would call Robinson as a
    witness and if he failed to implicate Welsh as he had in the Obeah statements,
    those statements would be admitted as an exception to the hearsay rule in
    accordance with
R. v. B. (K.G.)
, [1993] 1 S.C.R. 740. On this view,
    Welsh would actually be in a worse position in the event of a separate trial,
    because the statements, being admissible as an exception to the hearsay rule,
    would be received by the jury in their unedited form. Thus, the jury would hear
    that Robinson had told Cooper that Welsh was one of the shooters. However,
    because Robinson would be available for cross-examination by counsel for Welsh,
    it is speculative whether Welsh would in fact be more prejudiced by a severed
    trial.

ISSUE 5: Charge to the
    Jury on Calling out the Shooters

1. Introduction

[187]

This ground of
    appeal relates only to the appellant Pinnock. In his closing address to the
    jury, Crown counsel suggested that the jury could find Pinnock guilty of first
    degree murder because he called other people to come to the scene and therefore
    assisted in planning the killing. This theory was based on the cell phone
    records that showed that between 8:50 p.m. and 9:06 p.m. Pinnock placed five
    calls where he first dialled *67. By doing so, Pinnock was able to block his
    identity from the recipient. Crown counsel tied these calls in with the
    following dialogue between Pinnock and Cooper:

Pinnock: Made a call and then left.

Cooper: Who you call?

Pinnock: I didnt call anyone.

[188]

Crown counsel
    suggested that Pinnock resiled from his admission that he made a call because
    he did not want to name the shooters and he was able to say he did not call
    anyone because he had blocked the caller identification. Crown counsel
    therefore suggested that Pinnock called out the shooters; he called out the
    other car.

[189]

Defence counsel,
    in her closing, dealt with the issue and plainly put to the jury her position
    that this theory was speculative.

[190]

In his own
    review of Pinnocks liability for first degree murder, the trial judge referred
    to the evidence of Brown and Cooper. He put the basis for liability on the
    theory that Pinnock was acting as a lookout. He did not refer to the call out
    the shooters theory.

[191]

In his detailed
    review of the positions of the Crown and defence, the trial judge did deal, if
    briefly, with the theory that Pinnock called out the shooters. First, the trial
    judge set out the Crowns position on this theory, as follows:

The Crowns position is that Pinnock called out the additional
    shooters. He call-blocked those calls made close to the time Welsh was calling
    out Robinson, but did not call-block other calls.

[192]

He then
    summarized the position of the defence on the same theory:

Mr. Sherriff then tries to advance the new theory that Pinnock
    called in the shooters. This theory is highly speculative and not based on
    evidence, says the defence. Pinnock has no idea who the shooters are as shown
    by his comment to Cooper, How am I supposed to know who these people are? And
    the defence asks you to recall the candle lighting ceremony where he is being
    told by Robinson what to say. If youre involved in the planning and
    implementation of a murder, surely you would know the people involved.

[193]

Trial counsel
    for Pinnock objected to the charge to the jury. Counsel submitted that the
    trial judge should instruct the jury that the theory that Pinnock was involved
    in the planning of the killing was speculative and that there was no evidence
    to support it. The trial judge appeared to agree that there was no evidence
    that Pinnock was a planner. However, he stated that the Crown was entitled to
    have its theory summarized in the charge to the jury.

2. Analysis of the calling
    out the shooters issue

[194]

In our view,
    this ground of appeal raises three issues. First, was the defence unfairly surprised
    by the theory that Pinnock helped to plan the killing? Second, was the theory
    supported by the evidence? Third, if not, was the trial judge required to
    advise the jury that the theory was speculative and must be ignored?

a) Unfair surprise

[195]

We are satisfied
    that the defence was not unfairly surprised by the theory that Pinnock could be
    liable for first degree murder for assisting in planning the killing. In his
    opening, Crown counsel repeatedly referred to Pinnocks liability as being one
    of the planners. Below are some excerpts from the Crown opening:

Our case is that this reveals that Pinnock was hands-on in
    finding Oraha at an early stage that night.

Pinnock did admit to Leon that he made a call and said he was
    there in reference to the white boy. He did not specify when he made that call.
    Our case is that Mr. Pinnock was the spotter and that this call was probably
    made during what we allege were their surveillance activities which I will
    describe in a minute.

...

So our case is that Pinnock was directing surveillance just
    before the murder.

...

So our case is that Pinnock was using surveillance looking for
    Oraha and also looking out for police patrols.

...

Now, ladies and gentlemen, our case is that this was cold
    blooded premeditated murder, thats why the charge is first degree murder. We
    will prove that Jahmar Welsh was one of the shooters. We will prove that Evol
    Robinson, the man in the middle, brother of Jahmar, knew he was aiding the
    murder by making by  because he was what the law will call  you will need to
    take the law from His Honour, of course, what the law will call a party to the
    offence. So we say that Evol Robinson assisted this crime. Our case is that
    Ruben Pinnock was in on the planning as evidenced by evidence that he persuaded
    Welsh to go to the area  thats what he said himself  that night to find
    Oraha. We will also prove that defendant Pinnock deliberately aided the murder
    by conducting surveillance looking for Oraha and also did double duty aiding
    the murder by keeping a lookout for the police or perhaps from across the road
    making him a party to the offence.

So to summarize, in order left to right, we say first of all
    that we have Mr. Pinnock, whose role I just described, in on the planning,
    conducted surveillance and acting as a lookout.

[196]

Given the Crown
    opening, it cannot be said that the appellant Pinnock was unfairly surprised
    that it was a theory of the Crown that Pinnock helped to plan the shooting. It
    is apparent that the defence did not anticipate that the Crown would rely upon
    the blocked calls as evidence of planning. But, there is no suggestion that
    this evidence was not disclosed well in advance of the trial. The prosecution
    is not required to alert the defence to every inference it may ask the trier of
    fact to draw from the evidence. Provided the defence has had an ample
    opportunity to respond, it cannot be said that the defence has been unfairly
    prejudiced.

[197]

In her jury address,
    counsel for Pinnock dealt briefly but effectively with the Crown counsels
    theory about the blocked calls:

And it makes this new Crown theory that Ruben is somehow
    directly involved with the shooters by calling them in plainly nonsense. But
    Im going to add to this the difficulties with the speculation by talking about
    Mr. Sherriff and Mr. Watsons contention that this cell phone evidence supports
    this theory that Ruben was calling the shooters. And youll recall that they
    referred to the blocked calls. There was the code A67 in front of a number of
    the calls. Im not sure if we can get  is it possible to put the call  you
    have those records in front of you. Im not  you dont need to see them to
    understand what Im talking about, but its the  those calls with the blocked
    calls. Its calls four and five and seven, eight and nine.

And Im going to suggest to you, how does this make sense? To
    block your call means you block your number on the screen of the person youre
    phoning. Okay. It doesnt disguise your voice. Presumably, these people know
    who you are. Ruben is phoning shooters to call them in, presumably they know
    who he is. Whos he supposed to be calling? Shooters anonymous? The theory is
    that these are people he is calling in. Where is there any evidence whatsoever
    that these numbers belong to shooters? We can see, obviously, that the police
    have access to these records, are able to come up with all these detailed
    records. Where are they? Where are these shooters? Weve got the numbers there.
    Theyre right on the records. Why has the Crown not called any evidence to say
    we know that this number belongs to Mr. X and we allege that hes a shooter.
    Theres nothing there. Be wary of what Mr. Sherriff is doing. Im suggesting to
    you hes putting the most sinister twist on the phrase, made a call in the
    face of all reason and common sense. Mr. Sherriff is trying to plant a
    suspicious seed in your minds and hoping that youll latch on to it. And
    theres nothing there.

b) Evidentiary basis

[198]

We are also
    satisfied that there was a body of evidence from which the jury could infer
    that Pinnock did assist in planning the killing. The statements by Pinnock to
    Cooper can be interpreted as admissions that he convinced Welsh to come to Lisa
    St. because he believed that the deceased was there. At the scene itself, Brown
    and Welsh changed places. Brown joined Pinnock and Pinnock parked in a spot
    where he could see the deceaseds car. He remained in place until the shooting.
    During the period from 8:28 to 10:09 p.m. there were 13 calls to or from
    Pinnocks cell phone. For five of those calls, Pinnock used the call blocking
    feature. After the shots were fired, Pinnock rapidly followed Welshs vehicle
    away from the shooting. Finally, Pinnock told Cooper that he made a call before
    the shooting. Based on this body of evidence it was open to the prosecution to
    argue that Pinnock did help to plan the killing by bringing Welsh to the scene
    and acting as lookout and possibly calling others to the scene. The call
    blocking aspect of this theory was speculative. There was no evidence as to who
    Pinnock called during this time and there would seem to be no possible reason
    for Pinnock to use the call-blocking feature if indeed he was calling other
    people to take part in the execution of the deceased, unless he did not
    properly understand how that feature worked.

c) Trial judges duty

[199]

That leaves for
    consideration whether the trial judge should have told the jury that the call
    blocking aspect of the Crowns theory was speculative. It is established in
    cases such as
R. v. Rose
, [1998] 3 S.C.R. 262, that the trial judge
    has a duty to correct errors that counsel make, in order to preserve the
    fairness of the trial process.

[200]

It is apparent
    from the dialogue with defence counsel that this trial judge has always adopted
    the approach of not commenting on the evidence. It seems clear that he viewed
    defence counsels objection as asking him to comment on the evidence. He
    apparently did not see what Crown counsel had said about calling out the shooters
    as anything more than Crown counsels submission to the jury on the inferences
    that could be drawn from the evidence. By fairly placing the Crown and defence
    submissions on the issue before the jury, the trial judge presented a fair and
    balanced picture; the weight to be placed on the evidence was for the jury.

[201]

In some
    circumstances, the trial judge may be required to instruct the jury that an
    inference of liability is not available on the evidence. We agree with the
    statement of principle from
R. v. Khan
(1998), 126 C.C.C. (3d) 353
    (Man. C.A.), at para. 51:

There is no general rule that a trial judge must correct Crown
    counsel's misstatements or invitations to draw unavailable inferences.
    Nonetheless, where the misstatements or invitations are sufficiently
    prejudicial to the accused, the trial judge may become obliged to correct them:
R. v. Romeo
, [1991] 1 S.C.R. 86, 62 C.C.C. (3d) 1. Where the trial
    judge becomes so obliged, the familiar observation that the jury alone are
    judges of the facts and that they may disregard counsel's comments concerning
    the facts is not a sufficient correction:
Pisani v. The Queen
, [1971]
    S.C.R. 738, 1 C.C.C. (2d) 477.

[202]

In our view, the
    invitation to speculate from the use of the blocked number feature was not
    sufficiently prejudicial to the accused that the trial judges failure to
    correct Crown counsel was reversible error. We do not agree that the
    blocked-call feature gave the jury an independent path to finding Pinnock
    liable for first degree murder. It was simply some evidence upon which the
    Crown relied to draw the inference that Pinnock planned the killing.

[203]

It may be that
    this particular piece of evidence did not support the inference the Crown
    sought to draw. But, as we have said, there was a substantial body of other
    evidence to support the inference that Pinnock was a party to first degree
    murder. The speculative support from the use of the call blocking feature was a
    relatively minor aspect of the case against Pinnock. The defence had ample
    opportunity in its jury address to argue that the inference was speculative,
    and the trial judge fairly presented that argument in his own review of the
    defence position. The trial judge, as we have said, did not refer to this
    evidence as a route to liability when he gave his instructions on the facts and
    the law. We would not give effect to this ground of appeal.

ISSUE 6: Vetrovec Warning
    on Lasharn McLean

[204]

Counsel for
    Welsh argues that the trial judge erred in refusing to give a
Vetrovec
warning [
Vetrovec v. The Queen
, [1982] 1 S.C.R. 811] in respect of
    McLean. It will be recalled that McLean was the deceaseds girlfriend. After
    arriving at the police station, she told the police about the shooting, but
    said that she did not see the killers. Later, when she was told Oraha had died,
    she identified Welsh as being at the scene.

[205]

McLean explained
    why she had changed her story. Originally, she had feared reprisals but her
    mother encouraged her to change her story and told her she would let her leave
    the country and live with her father in Trinidad. The defence attacked that
    explanation on the basis that the evidence showed her mother was with her for
    most of the time she was at the police station. She had previously visited
    Trinidad on her own and did not need her mothers permission. The fear of
    reprisals story also did not make much sense because McLean had told the police
    that Welsh (she used his nickname Teddy) was someone with a grievance against
    the deceased. Finally, McLean was cross-examined on an incident when she had
    claimed to have been kidnapped and raped, and gave a false account about her
    knowledge of a gun owned by the deceased.

[206]

Trial counsel
    for Welsh argued that McLean required a
Vetrovec
warning. The trial
    judge decided not to give the warning. In our view, the trial judge did not err
    in not giving the special warning. The trial judge did give a special warning
    to the jury concerning McLean as an eye-witness.  The trial judge also reviewed
    McLeans evidence at length, including the matters relied upon by the defence as
    undermining her credibility.

[207]

In
R. v.
    Bevan
, [1993] 2 S.C.R. 599, at p. 614, the court held that the trial
    judge's discretion whether to give a
Vetrovec
warning should
    generally be given wide latitude by appellate courts. McLean did not fall
    within the class of witnesses where a
Vetrovec
warning was mandatory.
    She was not an accomplice, did not have a lengthy criminal record and could not
    be described as an unsavoury witness. There were factors that could undermine
    her credibility, but these were apparent on the record. As this court said in
R.
    v. Sauvé
(2004), 182 C.C.C. (3d) 321 (Ont. C.A.), at paras. 76 and 81:

The purpose of the
Vetrovec
warning is to alert the jury that there is a special need for caution in
    approaching the evidence of certain witnesses whose evidence plays an important
    role in the proof of guilt. The caution is of particular importance where there
    are defects in the evidence of a witness that may not be apparent to a lay
    trier of fact. Perhaps the most important of these is the jailhouse informer.

In sum, the need for this special care and for informing the
    jury of the reasons for the special care rests on the concern that the lay
    members of the jury simply do not have the necessary experience to adequately
    assess the credibility of these types of witnesses. This is not to say that
    such witnesses are incapable of telling the truth or that their evidence can
    never safely constitute an acceptable basis for a conviction. Rather, we say
    only that this kind of evidence must be approached with caution.

[208]

There may have
    been problems with McLeans credibility but there was no need for special
    caution in approaching her evidence. The jurys common sense and experience
    adequately equipped them with the tools necessary to correctly and fairly
    analyse her evidence. We would not give effect to this ground of appeal.

ISSUE 7: The Andrew Brown
    Vetrovec Warning

[209]

The appellants
    submit that the
Vetrovec
warning given in relation to Brown was not
    adequate. We do not agree. The trial judge warned the jury about relying upon
    Browns evidence in a mid-trial instruction and in the charge to the jury. The
    warning was lengthy, thorough and complied with the standards set in various
    decisions of this court and the Supreme Court of Canada. The trial judge
    reviewed the reasons calling for special caution in approaching Browns
    evidence, and explained the proper way to approach Browns evidence. He warned
    the jury that it was dangerous to rely on Browns evidence unless it was confirmed
    by other evidence. We would not give effect to this ground of appeal.

ISSUE 8: Charge to the
    Jury on Colette and the Family

[210]

The appellant
    Robinson submits that the trial judge should have given the jury a special
    instruction concerning Colette Robinson. Ms. Robinson, the mother of the
    appellants Robinson and Welsh, was not a witness at the trial. She did
    participate in some of the Obeah conversations. In addition, the prosecution
    alleged that she wanted revenge for the death of Cunningham. The trial judge
    properly directed the jury on the use to be made of Ms. Robinsons
    conversations. The directions were in accord with the pre-trial submissions.
    There is no merit to this ground of appeal.

DISPOSITION

[211]

Accordingly, we
    would dismiss the appeals.

M. Rosenberg J.A.

Robert J. Sharpe J.A.

I agree J. MacFarland
    J.A.

Released: April 2, 2013