COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Spackman, 2012
    ONCA 905

DATE: 20121224

DOCKET: C50464

Laskin, Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Kelly Spackman

Respondent

Alexander Alvaro, for the appellant

Joseph Wilkinson and Anida Chiodo, for the respondent

Heard: April 25, 2012

On appeal from the acquittal entered by Justice W. Brian
    Trafford of the Superior Court of Justice, sitting with a jury, on April 16,
    2009.

Watt J.A.:

[1]

Sometimes,
    a person accused of a crime will point to someone else as the person who
    committed it.

[2]

And
    sometimes, a person accused of a crime will claim that the police investigation
    of the offence that resulted in the charge was seriously flawed.

[3]

Both
    happened here.

[4]

Kelly
    Spackman was charged with second degree murder. The Crown alleged that he
    killed Alexander Christoff. Spackman contended that another person, Steve Chung,
    was the killer and that the police investigation of Chungs involvement was
    inadequate; the product of tunnel vision that focussed exclusively on
    Spackman (the respondent).

[5]

Crown
    counsel at trial wanted to call Chung as a witness to give the lie to the
    respondents claim that Chung was the killer. The trial judge, who had already
    decided that alternate suspect and inadequate investigation issues could be
    advanced before the jury, ruled that the Crown could not call Chung as a
    witness or introduce any evidence derived from Chungs disclaimer of
    responsibility.

[6]

The
    jury found the respondent not guilty.

[7]

The
    Crown appeals the respondents acquittal. The principal ground of appeal concerns
    the exclusion of Chungs evidence and other evidence derived from his
    testimony. Other grounds assert errors in the charge to the jury and in the
    exclusion of evidence of intercepted private communications.

[8]

These
    reasons explain why I have concluded that a combination of errors in the
    conduct of these proceedings requires a new trial.

The background facts

[9]

It
    is helpful to begin with a brief overview of the case as it was presented to
    the jury at trial leaving detailed elaboration where necessary to the
    individual grounds of appeal.

The Principals

[10]

The deceased
    was a drug dealer who lived in an apartment over a convenience store not far
    from the intersection of Yonge Street and Lawrence Avenue in Toronto. His
    currency was marijuana although he had expanded into cocaine trafficking in the
    year before he died. He was cautious in his illicit dealings, careful in his
    choice of customers, and in the manner in which he conducted his business.

[11]

In the three or
    four months prior to his death, the respondent became the deceaseds supplier
    of cocaine.

[12]

The respondent
    was also a drug dealer. He lived in an apartment at 110 Erskine Avenue with his
    girlfriend, Tijana Petrovic.

[13]

Steve Chung,
    another drug dealer, lived at 326 Dalesford Road, a very short distance from
    where the frozen body of the deceased was found by a passerby on March 11,
    2005. Chung supplied cocaine to the respondent in kilogram level quantities.

[14]

The respondent
    and Chung were associates in the cocaine trade. Each had a prior conviction for
    large scale distribution of drugs. Chung and the deceased did not deal directly
    with one another although they may have met briefly one evening at the Film
    Lounge, a local nightclub.

Drug Dealings Between the Respondent and Deceased

[15]

The evidence
    adduced at trial revealed two drug transactions between the respondent as
    seller and the deceased as purchaser.

[16]

The first
    transaction began at the respondents apartment. He asked for, and the deceased
    provided, $30,000 in cash for a kilogram of cocaine. The respondent took the
    money, left the apartment, and returned a few minutes later with a kilogram of
    cocaine. The deceased took the drugs and left the apartment.

[17]

The deceased
    agreed to buy another kilogram of cocaine from the respondent. The price was
    about the same as the first deal. The deceased turned over the money to the
    respondent in the same apartment. The respondent left with the money to get the
    drugs. A few minutes later, the respondent returned to the apartment without
    the drugs or the money the deceased had given him.

[18]

The deceased
    expressed concern that he had been ripped off. The respondent offered to help
    the deceased recover the drugs or money.

The Recovery Efforts

[19]

The deceased and
    respondent made several attempts to recover the drugs or money. The deceased
    told a friend that a Woodbridge guy had been involved in the drug deal.

[20]

On February 23,
    2005, the deceased and respondent made several telephone calls in connection
    with the failed drug transaction. They left together from the respondents
    apartment and travelled to Woodbridge, all to no avail.  They returned to the
    respondents apartment.

The Threat

[21]

Frustrated by
    the respondents failure to refund his money or supply the drugs, the deceased
    told the respondent that unless the cash were returned or the drugs supplied,
    he (the deceased) would send some Asian gang members after both the respondent
    and his girlfriend, or his girlfriend would be kidnapped.

The Cell Phone Traffic

[22]

Between February
    24 and March 8, 2005, 63 calls were made between cell phones owned by the
    deceased and the respondent.  At least one call took place every day.  No money
    or drugs changed hands.

The Events of March 9, 2005

[23]

The deceased and
    respondent exchanged a further 7 cell phone calls on March 9, 2005.

[24]

The deceaseds
    parents invited him for supper at their home on the evening of March 9, 2005.
    As they waited for dinner, the deceased answered several calls on his cell
    phone.  Around 7:00 p.m., he left his parents home. He said he would be back
    for supper in 10 minutes.  He never returned.

[25]

The deceased
    called a friend and asked him to provide backup for a meeting he (the deceased)
    was to have with the respondent. The friend declined.

[26]

The last
    telephone call between the deceaseds and respondents cell phones took place
    at 7:29 p.m. on March 9, 2005 and lasted seven seconds.  The same cell tower
    handled both phones indicating that the respondent and deceased were not far
    apart.

[27]

At about 7:30
    p.m. on March 9, 2005, the deceased entered the convenience store located on
    the ground floor of the building where he lived.  He was in the store only
    briefly before he left.

Evening Travels

[28]

Calls were made
    from or received by the deceaseds cell phone between 7:30 and 7:55 p.m. on
    March 9, 2005. According to the cell towers routing the calls, the trier of
    fact could conclude that the deceased and the respondent travelled south from
    the area of the deceaseds apartment to the Gardiner Expressway and west on the
    Expressway. The deceased spoke to a friend at 7:34 p.m. and again at 7:55 p.m. He
    said that he was on his way to meet the Woodbridge guy to collect his money.
    At 7:55 p.m. the deceased was less than three kilometres from the place where
    his body was found two days later.

[29]

From 8:20 p.m.
    on March 9, 2005 and thereafter, all incoming calls to the deceaseds cell
    phone went directly to voicemail and were routed through one or both towers
    with coverage in the area where his body was found.

[30]

No calls were
    made from or received by the respondents cell phone from 7:29 p.m. until 8:08
    p.m. on March 9, 2005, when the tower routing information placed him in an area
    about 1 kilometre east of where the deceaseds body was found. Similar
    information placed him near his home at around 8:37 p.m. on March 9, 2005.

[31]

A police officer
    travelled the distance between the location of the deceaseds body and the
    respondents residence on Erskine Avenue in 24 minutes between 8:07 and 8:31
    p.m. one evening.

[32]

An expert in
    cellular telephone technology explained that two cell towers provided
    overlapping coverage in the area in which the deceaseds body was found.
    Overlapping coverage was not unusual. It was the witness opinion that the
    deceaseds handset was likely stationary from 8:20 p.m. on March 9, 2005.  The
    changes between the overlapping towers revealed by the incoming calls that went
    directly to voicemail were likely due to instantaneous environmental factors,
    such as the volume of cellular telephone traffic, or an environmental change
    such as the movement of a large vehicle through the area.

[33]

It was the
    experts opinion that although the deceaseds cell phone could have received
    text messages between 8:20 p.m. on March 9, 2005, and when his body was found
    two days later, no text messages were sent from the deceaseds cell phone
    during that same time.

The Time and Cause of Death

[34]

A passerby
    walking along a pathway discovered the deceaseds body early in the afternoon
    of March 11, 2005. The body was fully clothed, resting against a chain-link
    fence near a walkway about 60 or 70 paces away from 326 Dalesford Road where
    Chung lived. The deceaseds cell phone and a pager were in his pocket.

[35]

No blood trail
    was visible in the area around the body. Investigators found some blood along
    the back wall of the building, north of the body, as well as on the deceaseds
    clothing and under his body. They found a toque and pager clip north of the
    deceaseds body.

[36]

The deceased
    died of blood loss caused by 12 sharp force injuries only one of which was
    superficial. Two of the wounds were associated with fractures of adjacent ribs
    indicative of the application of significant force. Dr. David Chiasson, the
    forensic pathologist who conducted the post-mortem examination of the deceased,
    said that the wounds had been caused by a single knife or knife-like object
    with a blade 2.5 centimetres wide and 10 to 15 centimetres long, or by more
    than one cutting instrument of a similar nature. Dr. Chiasson could not say how
    many people were involved in the stabbing.

[37]

Dr. Chiasson
    could offer no firm conclusion about the time of the deceaseds death. The body
    was frozen, a process that takes at least 24 hours, and had rested on its back
    for an extended time as was apparent from the post-mortem lividity the doctor
    saw on the posterior surface of the deceaseds body.

[38]

No evidence was
    adduced at trial about where the deceased was killed.

The Respondents Version

[39]

The respondent
    did not testify at trial. As part of its case, the Crown introduced two
    videotaped interviews of the respondent conducted by investigating officers.
    The accounts provided in each were relatively consistent, the one with the
    other, but some of the respondents answers were demonstrably false in light of
    other evidence admitted at trial, including telephone records.

[40]

The respondent
    acknowledged that he had known the deceased for about three months through his
    girlfriend and had seen him socially during that time.  The respondent knew
    that the deceased sold weed and stuff like that, as well as cocaine. The
    respondent had bought weed from the deceased, but was not involved with him
    in any illegal activities.

[41]

The respondent
    told investigators that he had last seen the deceased on March 8, 2005, but had
    spoken to him by telephone while he was at his mothers Mississauga home at
    around 6:00 or 7:00 p.m. the following day. The respondent was suffering from
    the flu on March 9, 2005, and went home around 7:30 p.m. from his mothers
    place. He stayed at home with his girlfriend the rest of that night.

[42]

The respondent
    denied any other contact with the deceased. He told investigators that he did
    not kill the deceased and had no idea who might have done so.

[43]

Cellular
    telephone records admitted at trial contradict the respondents account of his
    whereabouts on March 9, 2005, as well as the nature and frequency of his
    contact with the deceased.

The Chung Factor

[44]

At trial, the
    respondent advanced Chung as an alternate suspect, a fellow drug trafficker
    with an equivalent motive and commensurate opportunity to kill the deceased
    whose body was found about 60 or 70 paces away from where Chung lived. A second
    feature of the Chung as killer theme pressed by counsel at trial was an
    attack on the adequacy of the police investigation that focussed early on the
    respondent and, blinded by tunnel vision, never adequately examined the  much
    more likely killer, Chung.

[45]

Chung called the
    respondent twice on March 9, 2005, the last time at 1:50 p.m.  Chungs cell
    phone was in the vicinity of his home from 3:07 to 8:34 p.m. on March 9, 2005,
    and later that evening, at 10:46 and 11:12 p.m. was located in the Woodbridge
    area north of Toronto.

[46]

Police canvassed
    the neighbourhood in which the deceaseds body was found over several days
    following its discovery. Chung was interviewed by police and shown a photo of
    the deceased whom Chung said he did not recognize.

[47]

Shortly after
    the first neighbourhood canvass, on March 17, 2005, the respondent and Chung
    were in contact with each other. That day, surveillance officers saw the
    respondent remove a package from the trunk of his car and give it to Chung. For
    his part, Chung returned a dark brown square pouch to the respondent. The pair
    met on several other dates including immediately after police re-canvassed
    Chung on May 18, 2005.

[48]

On June 13,
    2005, police searched Chungs home under a warrant issued on the basis of an
    information sworn by the lead investigator asserting a belief that Chung may
    have been directly or indirectly involved in the murder of the deceased. The
    investigators sworn belief was grounded on the close proximity of Chungs residence
    to the location where the deceaseds body was found and cell phone records that
    put Chung in the area during the time the police considered the deceased was
    killed.

[49]

During the
    search of Chungs residence, about three months after the deceased had been
    killed, investigators found nothing to link Chung to the killing. They found no
    traces of blood on the floor and didnt test any knives for the presence of
    blood because they didnt expect to find any traces of blood on them.

[50]

What
    investigators did find at Chungs home was a marijuana grow operation, along
    with some cocaine and several pills. Chung was charged with production of
    marijuana as a result of the discovery. Five months later, in November 2005,
    the federal Crown withdrew the charges against Chung.

[51]

Police did not
    obtain a warrant to search and did not search Chungs vehicle.

the grounds of appeal

[52]

Crown counsel
    raises four grounds of appeal. One relates to the exclusion of evidence, two to
    the judges charge to the jury, and the fourth to a pre-trial ruling made by
    another judge setting aside an authorization to intercept private
    communications and declaring inadmissible several intercepted private
    communications proposed for admission by the Crown.

[53]

At the risk of
    inaccurate paraphrase, I would characterize the grounds of appeal in this way:

i.        that
    the trial judge erred in law in excluding the testimony of Chung and any
    evidence derived from that testimony proposed by Crown counsel to rebut the
    alternate suspect defence and claim of inadequate investigation;

ii.       that
    the trial judge erred in law in instructing the jury that if they could not
    decide whether the respondent or Chung killed the deceased, they must find the
    respondent not guilty;

iii.        that
    the motion judge erred in law in setting aside an authorization to intercept
    private communications granted under Part VI of the
Criminal Code
, and
    in excluding several intercepted private communications tendered for admission
    by the Crown as evidence; and

iv.        that
    the trial judge erred in law in making repeated references to wrongful
    convictions and miscarriages of justice in his final instructions to the jury.

Ground #1: The Exclusion of Chungs Evidence

[54]

The first and
    principal ground of appeal relates to a ruling made by the trial judge at the
    conclusion of a pre-trial motion brought by trial counsel for the respondent
    (not Mr. Wilkinson).  In his ruling, the trial judge:

i.        permitted
    counsel for the respondent to raise the defence of                        inadequate
    investigation of the alternate suspect Chung;

ii.       permitted
    counsel for the respondent to adduce evidence supportive of the assertion that
    Chung killed the deceased and that the investigation of Chungs potential
    involvement was inadequate; and

iii.      excluded
    the testimony of Chung and any evidence derived therefrom that the Crown
    proposed to elicit to rebut the defences of alternate suspect and inadequate
    investigation.

[55]

The appellant
    does
not
quarrel with the trial judges decision that permitted
    counsel for the respondent to adduce evidence in support of the defences of
    alternate suspect and inadequate police investigation. The appellant says that
    the error lies in the trial judges refusal to permit the Crown to respond to
    the issues admittedly in play at trial with contrary evidence from Chung and
    others that would have left the jurors with a more balanced picture to evaluate
    the legitimacy of the respondents claim.

[56]

To appreciate
    more fully this ground of appeal, it is necessary to sketch in some further
    detail about Chung and the investigation that followed the discovery of the
    body of the deceased.

The Additional Background

The Early Investigative Steps

[57]

Chung was first
    approached by the police within days of the finding of the body of the
    deceased. He told them that he had been at a nightclub on the night of March 9,
    2005 and had not returned until 3:00 a.m. on March 10, 2005.  Immediately after
    he had spoken to police, Chung called the respondent twice. Chung also
    contacted the respondents brother. The respondent called Chung.

[58]

On April 27,
    2005, a judge of the Superior Court of Justice granted an authorization to
    intercept the private communications of several named persons including both
    the respondent and Chung. The supportive affidavit alleged that Chung was
    directly involved in the killing of the deceased.

[59]

Police spoke to
    Chung again on May 18, 2005 and showed him a photograph of the deceased. Chung
    said he didnt know the person in the photograph. After this canvass, Chung
    called the respondent several times and went to his apartment. He also
    counselled another witness not to speak to the police about the investigation.

The
    Search of Chungs Home

[60]

Detective Sgt.
    Saunders swore an information to obtain a warrant to search Chungs residence
    on June 13, 2005 (the ITO). The lead investigator alleged that Chung was
    involved in the killing of the deceased and that the killing took place at 326
    Dalesford where Chung lived.

[61]

After Chungs
    arrest on drug charges that arose as a result of the search of his home on June
    13, 2005, Det. Sgt. Saunders approached Chung to ask him some questions about
    the killing of the deceased. Chung was not under arrest for the murder, nor considered
    a suspect. Chung declined the police request to speak to them about the
    homicide investigation.

[62]

The
    authorization to intercept private communications granted on April 27, 2005,
    expired on June 27, 2005. The intercepted calls revealed nothing conclusive
    about Chungs involvement in the killing, but nothing said eliminated the
    possibility that Chung had been directly involved.

[63]

The respondent
    was arrested for the murder of the deceased on July 14, 2005. Det. Sgt.
    Saunders considered that the investigation of Chung was sufficiently complete
    that police could concentrate on the case against the respondent. No further
    investigation was undertaken in connection with Chung.

[64]

Chung left the
    jurisdiction in late 2005 after the federal Crown had withdrawn the charges
    laid in connection with the grow operation found during the search on June 13,
    2005.

The Preliminary Inquiry

[65]

At the respondents
    preliminary inquiry in June, 2006, Chung did not testify. He was not subpoenaed
    as a witness. The police had made no effort to locate him. Trial counsel for
    the respondent did not discuss Chungs attendance with Crown counsel, nor ask
    that Chung be made available to give evidence at the inquiry.

[66]

During his
    cross-examination of Det. Sgt. Saunders, trial counsel for the respondent
    elicited evidence on two issues that he would later raise at trial:

i.        Chung
    as an alternate suspect; and

ii.       the
    adequacy of the police investigation in connection with                             Chung.

It is a reasonable inference that, by the end of the
    preliminary inquiry, both the lead investigator, Det. Sgt. Saunders, and Crown
    counsel knew that, at trial, counsel for the respondent would raise the
    adequacy of the police investigation and the involvement of Chung as an
    alternate suspect as a basis upon which the trier of fact would be invited to have
    a reasonable doubt about the respondents guilt.

The First Trial Date

[67]

In June 2007, a
    judge set January 14, 2008, as the date for the respondents trial.  The case
    was not reached on this date.

[68]

At the end of
    January, 2008, Crown counsel asked Saunders about Chungs status and
    whereabouts. Saunders told the Crown, and the Crown advised the respondents
    trial counsel, that the police did not know Chungs location and hadnt looked
    for him.

[69]

In October or
    November, 2008, the respondents trial counsel asked the Crown again about
    Chung whom he wanted to call as a witness (under subpoena) to establish that,
    within months of the killing, Chung had fled the jurisdiction. At the time of
    the request, the police had done nothing to locate Chung.

The Second Trial Date

[70]

The respondents
    trial was rescheduled to begin in early February, 2009.  During a pre-hearing
    conference conducted the week before the trial was scheduled to begin, the
    trial judge emphasized the need to find Chung and bring him to court for the
    purpose of the respondents motion to permit advancement of the alternate
    suspect and inadequate investigation issues before the jury. Crown counsel
    acknowledged that the respondent was entitled to raise the alternate suspect
    issue, but opposed the respondents motion as it related to an inadequate
    investigation.

[71]

Chung was found
    in another province the day following a police inquiry of a source suggested by
    trial counsel for the respondent.

Chungs Refusal to Cooperate

[72]

Counsel for the
    Crown at trial proposed that a statement be taken from Chung by investigators,
    and turned over to defence counsel for cross-examination on the respondents
    motion to raise the inadequate investigation issue. Chung consulted with his
    own counsel, then made it clear that he would not provide a statement to police
    about his activities or connection with the death of the deceased.

[73]

The respondent
    sought and the trial judge ordered the Crown to disclose what efforts had been
    made to find Chung during the course of the investigation since evidence of
    these efforts was relevant to the adequacy of the investigation of the alternate
    suspect.

[74]

On February 12,
    2009, Chung appeared as a witness on the respondents motion. Trial counsel for
    the respondent cross-examined Chung for four days on the motion.

Chungs Evidence on the Motion

[75]

Chung testified
    on the respondents motion. He denied any involvement in the killing of the
    deceased and initially declined any knowledge of the persons responsible.

[76]

Chung admitted
    that he had supplied cocaine to the respondent in amounts of between one-half
    and one kilogram. He described two specific transactions. He acknowledged that
    he had met a man named Alex (the first name of the deceased) once at the Film
    Lounge, a local nightclub.

[77]

At the
    conclusion of his examination-in-chief by Crown counsel on the motion, Chung
    responded to an open-ended question by saying that the respondent had admitted
    to him (Chung) that he (the respondent) had stabbed the deceased to death and
    got rid of the knife at Lakeshore Harbourfront. Chung provided no further
    details about the time, place, or circumstances of the stabbing.

[78]

Chung explained
    that the respondent confessed to the killing to provide a form of security for
    Chung for a drug deal in which they had been involved that did not turn out as
    planned. The deal involved the supply of cocaine to a United States purchaser
    and payments in cash and pills, but the debt remained unsatisfied.  Chung
    thought he had been set up to take the fall for the killing of the deceased,
    since it took place so close to Chungs home, but he continued to keep in
    contact with the respondent.

The Ruling of the Trial Judge

[79]

The trial judge
    decided that the respondent was entitled to raise the issue of inadequate
    police investigation and to introduce some investigative hearsay evidence in
    support of that claim. The judge permitted Crown counsel to introduce relevant
    investigative hearsay to rebut the respondents claim, but rejected the Crowns
    request to be permitted to call Chung as a witness and to introduce other
    evidence in rebuttal derived from Chungs disclosures.

[80]

The trial judge
    considered three discrete, yet related rules of admissibility in determining
    whether to admit or exclude the testimony of Chung as well as its derivatives.
    He considered exclusion under:

i.        the
    common law, and later constitutionalized rule that authorizes the exclusion of
    evidence, the admission of which would render trial proceedings unfair;

ii.       the
    remedial authority of s. 24(1) of the
Charter
that permits exclusion
    of evidence as a just and appropriate remedy where introduction of the evidence
    would render the trial unfair, and thus offend ss. 7 and 11(d) of the
Charter
;
    and

iii.      the
    common law discretion to exclude evidence the prejudicial effect of which
    exceeds its probative value.

[81]

In his lengthy
    reasons for judgment, the trial judge emphasized that the duties on the police
    to investigate, and on the Crown to prosecute, must be carried out objectively
    and reflect the exercise of due diligence to avoid tunnel vision that created
    the palpable risk of wrongful conviction. The trial judge found that the police
    had not exercised due diligence in the investigation of Chung as an alternate
    suspect. The investigation of the case was incomplete, the prospect of its
    timely completion unknown, and the prejudice to the defence obvious from the
    lack of opportunity to consider and investigate recently disclosed information.

[82]

The trial judge
    considered the probative value of Chungs evidence.  Among the factors he
    listed in his assessment were these:

i.        that
    Chung admitted lying under oath on the motion;

ii.       that
    Chung attempted to interfere with the investigation

by
    counselling others to mislead the police and by destroying    his email
    messages;

iii.      that
    Chung was linked to the murder by motive, opportunity,                          and
    other suspicious circumstances;

iv.      that
    Chungs testimony contained several important                                      inconsistencies;

v.       that
    Chungs testimony was contradicted by other reliable                              evidence;

vi.      that
    the manner in which investigators handled Chung after he had been located
    sparked concerns about a motive on Chungs part to fabricate allegations;

vii.     that parts of
    Chungs testimony, such as the alleged        confession by the respondent,
    were inherently unlikely; and

viii.    that
    Chung was a witness of unsavoury character.

[83]

The trial judge
    expressed his conclusion about the probative value of Chungs evidence in this
    way:

For these reasons, I am satisfied that Mr. Chungs
    evidence is of slight probative value, looking at the anticipated evidence as a
    whole. It is fragile evidence that is not confirmed by independent evidence.
    The reasonable inferences to be drawn from it are many and varied, some of
    which are incriminating and some of which are exculpatory. This testimony
    raises the spectre of a miscarriage of justice, looking at the anticipated
    evidence as a whole.

[84]

On the issue of prejudicial
    effect, the trial judge considered that Chungs evidence raised the prospect of
    moral and reasoning prejudice and would increase the complexity of the trial
    through the proliferation of innumerable factual and legal issues. Court time
    would be wasted. There was a danger of unfair surprise to the defence.  And the
    likelihood of an adjournment to permit the respondent to investigate and
    contemplate the effect of the new material would render the prosecution
    vulnerable under s. 11(b) of the
Charter
.

[85]

The trial judge
    concluded his reasons for exclusion in these terms:

For these reasons, I am satisfied that the just and
    appropriate remedy is to exclude the testimony, of Mr. Chung, and all of its
    derivative evidence, to ensure the fairness of the defendants trial and to
    maintain the integrity of the administration of justice and the public
    confidence in it. The tunnel vision of Inspector Saunders, and others acting
    under his direction, in this case is evident and palpable. To some extent the
    original Crown Attorneys are implicated in the tunnel vision and otherwise
    failed to diligently fulfill their own duties to the administration of
    justice.  See
R. v. McNeil
,
supra
. The testimony of Mr.
    Chung, only available at this late stage through the efforts of the Court and
    the Crown Attorneys on the record at trial, would, if admitted into evidence,
    create a risk of a miscarriage of justice. Its probative value is slight and
    its prejudicial effect is significant. The ongoing investigation of collateral
    sources of information important to an impartial determination of Mr. Chungs
    credibility compromises the ability of the defendant to make full answer and
    defence. The defence is left in a position where the evidentiary landscape at
    trial is shifting, without a reasonable opportunity to anticipate the dynamics
    of the trial and develop a coherent and effective response to it, if one is
    available. Further late disclosure may lead to a mistrial, and a waste of
    judicial resources. Any such mistrial may lead to a stay of proceedings under
    s. 11(b) of the
Charter
, in a case of murder that should be tried on
    its merits. In the circumstances of this case, the just and appropriate remedy
    is to exclude the testimony of Mr. Chung and the evidence derived from it.

The Arguments on Appeal

[86]

For the
    appellant, Mr. Alvaro takes no issue with the trial judges determination that
    the alternate suspect and inadequate investigation issues were properly in play
    before the jury. He acknowledges that appellate courts are bound to accord substantial
    deference to decisions of trial judges that involve the exercise of discretion,
    such as the discretion to exclude relevant, material, and otherwise admissible
    evidence. He submits, however, that where, as here, the discretion is exercised
    by taking into account factors or principles that are irrelevant, by failing to
    consider factors or principles that are relevant, and by failing to give
    consideration to a remedy short of complete exclusion, the decision of the
    trial judge is not entitled to deference and warrants appellate intervention.

[87]

Mr. Alvaro says
    that exclusion of evidence is an exceptional remedy when a trial judge
    exercises trial management authority or grants a remedy for failed or late
    disclosure. Nothing in this case warranted exclusion on either of these
    grounds. In a similar way, outright exclusion cannot be justified on the basis
    that receiving the evidence would compromise trial fairness to such an extent
    that it would infringe ss. 7 and 11(d) of the
Charter
. Remedies for
Charter
infringement under s. 24(1) of the
Charter
must be just and
    appropriate in the circumstances of the case and this is neither.

[88]

Mr. Alvaro
    contends that the trial judge erred in law in his:

i.

assessment of the probative value of Chungs evidence;

ii.

assessment of the prejudicial effect of Chungs evidence; and

iii.

evaluation of where the balance settled between probative value and
    prejudicial effect.

[89]

In determining
    the probative value of Chungs evidence, Mr. Alvaro argues, the trial judge
    erred by failing to take into account that the evidence:

i.

included a confession to murder that described the means by which the
    deceased was killed;

ii.

rebutted the position advanced by the respondent that Chung killed the
    deceased;

iii.

confirmed other evidence about the lack of prior contact between Chung
    and the deceased; and

iv.

showed the nature of the relationship between Chung and the respondent and
    thus, to some extent at least, a common motive to kill the deceased.

[90]

Mr. Alvaro says
    further that the trial judge erred in his assessment of the prejudicial effect
    of Chungs evidence. Contrary to what the trial judge concluded, Chungs
    evidence did not engender either reasoning or moral prejudice. The trial
    judges conclusion that investigators, to some extent the prosecutors,
    displayed tunnel vision in failing to fully plumb the involvement of Chung was
    likewise not a factor to be taken into account in assessing the prejudicial
    effect of admitting Chungs evidence.

[91]

In addition, Mr.
    Alvaro argues, the trial judge failed to consider any remedy short of exclusion
    of the sum of Chungs testimony and evidence derived from it. To the extent
    each source of potential exclusion is discretionary, partial exclusion was a
    viable alternative to which the trial judge paid no heed. He could have
    excluded the alleged confession or evidence of some post-offence conduct, but
    permitted Chung to provide details of his whereabouts at the material time and
    his denial of involvement in the killing. The failure to consider some less
    sweeping exclusion left the jury with an entirely distorted picture on the
    alternate suspect issue.

[92]

For the
    respondent, Mr. Wilkinson acknowledges that the trial judge made errors in his
    probative value/prejudicial effect analysis. The proposed evidence did not
    engender either moral or reasoning prejudice. But in the end, these erroneous
    considerations had no impact on the result. Exclusion of Chungs testimony and
    its derivatives was a just and appropriate remedy for an inadequate
    investigation and late disclosure that breached the respondents right to make
    full answer and defence to the charge. No remedy short of complete exclusion
    could vindicate this constitutional infringement.

[93]

Mr. Wilkinson
    says, further, that the appellant should be estopped from raising this ground
    of appeal, at all events from obtaining a new trial on this basis, because
    Crown counsel at trial declined the trial judges offer of a mistrial that
    would have permitted the prosecution to reload and recommence proceedings
    subject to successful opposition to a motion under s. 11(b) of the
Charter
.
    Crown counsels decision to decline the offer, a strategic, tactical decision
    according to Mr. Wilkinson, forecloses the remedy of a new trial sought here.

[94]

In the end, Mr.
    Wilkinson submits, even if the trial judge wrongly excluded the evidence and
    the Crown is not estopped from seeking a new trial because Crown counsel at
    trial declined the offer of a mistrial, the verdict would necessarily have been
    the same. Chung was an unreliable witness whose tale of a barren, unsolicited
    confession and the circumstances in which it was made was incredible. Admitting
    the evidence would have produced a different script, but the same ending.

The Governing Principles

[95]

Several
    principles inform the decision in connection with this ground of appeal
    including but not only the scope of the basis upon which a trial judge may
    exclude relevant, material, and otherwise admissible evidence on grounds of
    unfairness, late disclosure, or in accordance with the cost-benefit analysis
    described in
R. v. Mohan
, [1994] 2 S.C.R. 9. There is also the
    question of whether what is involved here is a question of law alone,
    cognizable on an appeal by the Crown under s. 676(1)(a) of the
Criminal
    Code
,
R.S.C. 1985, c. C-46,

and the standard and scope of appellate review of a trial judges exercise
    of the exclusionary discretion.

[96]

The trial
    judges decision to permit counsel for the respondent at trial to raise the
    alternate suspect and inadequate investigation issues is not challenged here.
    That said, some discussion of the principles at work in such cases is of
    importance in determining whether the ruling on admissibility reflects error.

The Right of Appeal: A
    Question of Law Alone

[97]

In proceedings
    by indictment, the Crowns right of appeal from an acquittal entered after trial
    is limited by the provisions of s. 676(1)(a) of the
Criminal Code,
to
    grounds of appeal that involve questions of law alone.

[98]

The rules of
    admissibility, which comprise the chief work of the law of evidence, are rules
    of law and, by nature, primarily exclusionary. Evidence that is relevant and
    material, but falls foul of an admissibility rule, is excluded unless it can
    gain entry by an exception to the exclusionary rule. Decisions on admissibility
    usually involve questions of law alone, at the very least where the allegation
    is that the admissibility decision was based on wrong legal principles:
R.
    v. J.M.H.
,
2011 SCC 45,
    [2011] 3 S.C.R. 197, at para. 29.

Exclusion of Evidence to
    Ensure Trial Fairness: The Common                           Law Rule

[99]

A trial judge
    has a common law authority to exclude relevant and material evidence on the
    ground that its admission would render trial proceedings unfair:
R. v.
    Harrer
, [1995] 3 S.C.R. 562, at paras. 21, 23, 41, and 42;
R. v. White
,
    [1999] 2 S.C.R. 417, at para. 86. This common law admissibility rule has
    achieved constitutional status because of the s. 11(d)
Charter
guarantee of a fair hearing:
Harrer
, at paras. 23-24.

Exclusion of Evidence to
    Ensure Trial Fairness: s. 24(1) of the                           Charter

[100]

Where evidence proposed for
    admission at trial has been obtained in a manner that infringed or denied an
    accuseds constitutional rights or freedoms, the appropriate exclusionary
    mechanism is s. 24(2) of the
Charter
. To invoke s. 24(2) an
    accused must establish the three requirements of the subsection which can be briefly
    described as:

·

infringement;

·

nexus; and

·

effects.

The requirements are cumulative. The standard of proof
    required is proof on a balance of probabilities:
R. v. Collins
, [1987]
    1 S.C.R. 265, at pp. 276-277; see also
R. v. Therens
, [1985] 1 S.C.R.
    613; and
R. v. Strachan
, [1988] 2 S.C.R. 980.

[101]

Where evidence has not been
obtained
by constitutional infringement, however, s. 24(2) of the
Charter
is
    unavailable as an exclusionary mechanism.  Constitutionally obtained evidence
    may nonetheless be excluded under the
Charter
if the introduction of
    that evidence would render the trial unfair, and thus infringe the fair trial
    rights of an accused guaranteed by ss. 7 and 11(d) of the
Charter
. The
    exclusionary mechanism in such cases is s. 24(1) of the
Charter
, not
    s. 24(2):
Harrer
, at para. 42;
White
, at para. 89.

[102]

Trial fairness is not the
    exclusive preserve of those charged with crime.  A fair trial is a trial that
    appears fair, not only from the perspective of the accused, the person on trial,
    but also from the perspective of the community:
Harrer
, at para. 45;
R.
    v. Bjelland
, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 22. A fair trial
    is a trial that satisfies the public interest at getting at the truth, but at
    the same time preserves basic procedural fairness for the accused:
Harrer
,
    at para. 45.;
Bjelland
, at para. 22.

[103]

The remedy of evidentiary
    exclusion under s. 24(1) is not for the asking.  An accused who seeks this
    remedy must establish a breach of his or her
Charter
rights: the right
    to a fair trial in accordance with ss. 7 and 11(d) of the
Charter
.  The
    remedy of evidentiary exclusion under s. 24(1), like any of the panoply of
    remedies available under the subsection, is subject to the controlling language
    of the provision: evidentiary exclusion must be appropriate and just in the
    circumstances. Evidentiary exclusion is only available as a remedy under
    s. 24(1) in those cases where a less intrusive remedy cannot be fashioned
    to safeguard the fairness of the trial process and the integrity of the justice
    system:
Bjelland
, at para. 19.

Exclusion of Evidence under
    the Trial Management Power

[104]

Trial judges have an expansive,
    but not unbounded authority to manage the conduct of criminal trial proceedings
    to promote the efficient use of court time and to ensure fair treatment of all
    parties involved in the proceedings:
R. v. Felderhof
(2003), 180
    C.C.C. (3d) 498 (Ont. C.A.), at paras. 37 and 57. However, excluding relevant,
    material, and otherwise admissible evidence under the trial management power is
    an unusual exercise of that power.  Evidentiary exclusion should be reserved
    for cases in which it is plain and obvious that the circumstances require
    evidentiary exclusion and that the usual remedies, like a brief adjournment,
    will not be adequate:
R. v. Horan
, 2008 ONCA 589, 237 C.C.C. (3d) 514,
    at para. 33.

Evidentiary
    Exclusion as a Remedy for Late Disclosure

[105]

The Crowns obligation to make
    timely disclosure to an accused of all relevant information in its possession
    is well established at common law and now constitutionally entrenched in the
    right to make full answer and defence under the
Charter
:
R. v.
    McNeil
, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 14. As a necessary
    corollary to the Crowns disclosure duty under
R. v. Stinchcombe
,
    [1991] 3 S.C.R. 326, the police (or other investigating state authority) have
    an obligation to disclose to the Crown all material pertaining to its
    investigation of the accused:
McNeil
, at para. 15.

[106]

Under our system of law
    enforcement, the general duty to investigate allegations of criminal conduct
    falls upon the police. The fruits of a criminal investigation, it follows, are
    gathered by the police who also determine, often with the benefit of legal
    advice from the Crown, whether criminal charges will be laid.  The Crown
    obtains the fruits of the investigation because of the corollary duty of police
    investigators to disclose to the Crown all relevant material in their
    possession:
McNeil
, at para. 23.

[107]

It does not follow from the
    disclosure obligations imposed upon the Crown, or the correlative duty imposed
    upon the police to turn over their fruits of the investigation to the Crown, however,
    that an accused is entitled to a particular kind of disclosure or assured of a
    specific form of investigation.

[108]

The disclosure obligations of the
    Crown do
not
require the production of witnesses for discovery, for
    example by calling them as witnesses at a preliminary inquiry:
R. v. S.J.L.
,
    2009 SCC 14, [2009] 1 S.C.R. 426, at para. 23;
R. v. Khela
, [1995] 4
    S.C.R. 201, at para. 18. Nor does an accused have a constitutional right, as an
    incident of the right to make full answer and defence or otherwise, to an
    adequate police investigation of the crime with which she or he is charged:
R.
    v. Darwish
, 2010 ONCA 124, (2010), 103 O.R. (3d) 561, at para. 29;
R.
    v. Barnes
, 2009 ONCA 432, at para. 1. Further, an accused has no
    constitutional right to direct the conduct of a police investigation of which
    she or he is the target or, through a disguised disclosure demand, conscript
    the police to undertake investigatory work for him or her:
Darwish
, at
    para. 30;
R. v. Schmidt,
2011 BCCA
    3,
151 C.C.C. (3d) 74 (B.C.C.A.), at para. 19. On the other hand,
    the police and Crown should give serious consideration to investigative
    requests made on behalf of an accused:
Darwish
,
at para. 30. That said, it is the
    prosecutorial authorities, not the defence, that bear the ultimate
    responsibility for determining the course of the investigation:
Darwish
,
    at para. 30.

[109]

The disclosure right of an accused
    does
not
extend so far as to require the police to investigate
    potential defences:
Darwish
, at para. 31. Where, however, material and
    meritorious allegations of state misconduct are advanced as a basis for
Charter
relief in an ongoing criminal prosecution, a duty to investigate may be
    imposed:
Darwish
, at para. 38; see also
R. v. Ahluwalia
(2000),
    149 C.C.C. (3d) 193 (C.A.), at paras. 70-72.

[110]

Setting to one side any
    constitutional impairments that may follow from a failure to investigate
    various issues raised by an accused, a concurrent prosecutorial failure to
    adduce evidence to rebut a defence otherwise in play at trial, may result in a
    reasonable doubt about an accuseds guilt.

[111]

A breach of the Crowns disclosure
    obligations, without more, does not constitute a breach of s. 7 of the
Charter
.
    To demonstrate constitutional infringement, and thus entitlement to a just and
    appropriate remedy, an accused must show actual prejudice to his or her right
    to make full answer and defence resulted from the infringement:
R. v. OConnor
,
[1995] 4 S.C.R. 411, at para. 74;
Bjelland
,
    at para. 21.

[112]

Breaches of the Crowns disclosure
    obligations that amount to a constitutional infringement do not involve
obtaining
evidence in an unconstitutional way.  As a result, remedies for these infringements
    fall within the compass of s. 24(1) of the
Charter
, not s. 24(2):
Harrer
,
    at paras. 42-43. Remedies under s. 24(1) are flexible and contextual:
Bjelland
,
    at para. 18.

[113]

Exclusion of evidence may be
    available as a remedy for constitutional infringement under s. 24(1), provided exclusion
    is appropriate and just in the circumstances.
Bjelland
, at para.
    19.  As explained in
Bjelland
, at para. 24, exclusion of evidence is an
    exceptional remedy for late disclosure, confined to cases in which:

i.        the
    late disclosure renders the trial process unfair and the unfairness cannot be
    remedied through an adjournment and disclosure order; or

ii.       exclusion
    is necessary to maintain the integrity of the justice system.

Where a trial judge can fashion an appropriate remedy
    for late disclosure that does not deny an accused procedural fairness and where
    admission of the evidence does
not
otherwise compromise the integrity
    of the criminal justice system, exclusion of evidence will not be an
    appropriate and just remedy under s. 24(1):
Bjelland
, at para. 24.

[114]

In most cases of late or
    inadequate disclosure, the focus of the search for an appropriate and just
    remedy under s. 24(1) is the remediation of any prejudice suffered by an
    accused. Safeguarding the integrity of the criminal justice system is also
    relevant:
Bjelland
, at para. 26. Admission of evidence despite late
    disclosure may compromise the integrity of the criminal justice system where an
    accused is in custody and an adjournment may unduly prolong the proceedings, or
    where the late disclosure is the product of deliberate Crown misconduct:
Bjelland
,
    at para. 27. On the other hand, societys interest in a fair trial that reaches
    a reliable determination of guilt or innocence based on all the evidence,
    especially in cases involving serious crimes cannot be ignored:
Bjelland
,
    at para. 27.

Exclusion of
    Evidence under the General Exclusionary Discretion

[115]

A judge presiding in a criminal
    trial has a well-established discretion to exclude evidence that is relevant,
    material, and otherwise compliant with the rules of admissibility. This
    discretion, rather its exercise, involves a cost-benefit analysis, an inquiry
    into whether the value of the proposed evidence to the correct disposal of the
    litigation is worth its cost to the litigation process:
Mohan
, at pp. 20-21.
    As held in
Mohan
,

at pp. 20-21, a trial judge may exclude
    evidence in the exercise of this discretion where:

i.        the
    probative value of the evidence is overborne by its                                  prejudicial
    effect;

ii.       the
    introduction of the evidence would involve an inordinate amount of time not
    commensurate with its value to the determination of the dispute; or

iii.      the
    evidence is misleading because its effect on the trier of                            fact,
    especially a jury, is disproportionate to its reliability as                          proof.

[116]

The application of this general
    exclusionary discretion in any case in which it is invoked requires a
    case-specific factual inquiry. Where the balance being assessed involves
    probative value and prejudicial effect, relevant factors in the assessment of
    probative value could include the strength of the evidence, the extent to which
    the facts the evidence tends to establish are at issue in the proceedings, and
    the extent to which the evidence supports the inferences advanced. An
    assessment of prejudicial effect may involve considerations like whether the
    evidence reveals discreditable conduct not charged in the indictment, confusion
    of issues, the ability of the accused to respond to the evidence, whether the
    evidence is apt to give rise to an inference of guilt through propensity
    reasoning, and the efficacy of limiting instructions.

[117]

In some cases, for example those
    that involve evidence of extrinsic misconduct, what is proposed for admission
    might engender moral prejudice or reasoning prejudice. Moral prejudice is the
    danger of bad personhood: the risk that an accused will be convicted  because
    of the kind of person the evidence reveals him or her to be, rather than
    because of what the evidence establishes that she or he did:
R. v. Handy
,
    2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31, 100, and 139-142. Reasoning
    prejudice is the danger that a jury might be confused by the multiplicity of
    incidents revealed by the evidence and distracted from the core issues in the
    case:
Handy
, at paras. 31, 100, and 144-146.

[118]

Where the basis on which the
    exclusionary discretion is invoked is a claim that the prejudicial effect of
    the evidence exceeds its probative value, the balancing exercise brushes up
    uncomfortably close to the jurys function of weighing the evidence.
A
trial judge, invited to exercise his
    or her exclusionary discretion on this basis, must be careful not to invade the
    jurys territory. In a similar way, in assessing the potential prejudicial
    effect of evidence, a trial judge must take into account and not underestimate
    the jurys ability to understand and follow limiting instructions
R. v.
    Corbett
, [1988] 1 S.C.R. 670, at pp. 692-693.

Alternate Suspects
    and Inadequate Investigation

[119]

Although the appellant takes no
    issue with the trial judges ruling that permitted the respondent to advance
    Chung as an alternate suspect and to challenge the adequacy of the police
    investigation, principally, but not exclusively, as it related to Chungs
    potential involvement in the offence, some features of each defence warrant
    brief discussion.

[120]

It is fundamental that if A is
    charged with the murder of X, then A is entitled, by way of defence, to adduce
    evidence to prove that B, not A, murdered X:
R. v. McMillan
(1975), 7
    O.R. (2d) 750 (C.A.), at p. 757, affirmed, [1977] 2 S.C.R. 824;
R. v.
    Grandinetti
, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 46. The evidence on
    which an accused relies to demonstrate the involvement of a third party in the
    commission of the office with which the accused is charged must be relevant to
    and admissible on the material issue of identity:
McMillan
, at
    p. 757;
Grandinetti
, at para. 46.

[121]

It is essential that there be a
    sufficient connection between the third party and the crime, otherwise any
    evidence about the third party would be immaterial.  An accused must show that
    there is some basis upon which a reasonable jury, properly instructed, could
    acquit based on the claim of third party authorship:
Grandinetti
, at
    paras. 47-48;
R. v. Fontaine
, 2004 SCC 27, [2004] 1 S.C.R. 702, at
    para. 70. Absent a sufficient connection, the defence of third party
    authorship lacks an air of reality and cannot be considered by the trier of
    fact:
Grandinetti
, at para. 48.

[122]

Where the defence of third party
    authorship is in play at trial, it is open to the Crown, as with other defences
    advanced on an accuseds behalf, to introduce evidence that rebuts the claim
    that a third party committed the offence.  The evidence may take various forms
    and originate in different sources. The Crowns rebuttal must be relevant to
    and admissible on this material issue: see e.g.
R. v. Mullins-Johnson
(1996),
    112 C.C.C. (3d) 117 (Ont. C.A.), at pp. 123-124, affirmed, [1998] 1 S.C.R. 977;
R. v. Parsons
(1993), 84 C.C.C. (3d) 226 (Ont. C.A.), at p. 238; and
McMillan
,
    at pp. 767-768.

[123]

The defence of inadequate
    investigation may be related to but can be discrete from a claim of third party
    authorship. The decision by an accused to attack the integrity of the police
    investigation of the offence charged is a permitted, but risky strategy. The
    risk involved is that, by invoking the strategy, the accused will make
    relevant, material, and admissible, evidence that would never have seen the
    light of day if tendered by the Crown as part of its case in-chief:
R. v.
    Dhillon
(2002), 166 C.C.C. (3d) 262 (Ont. C.A.), at para. 51; and
R.
    v. Mallory
, 2007 ONCA 46, (2007), 217 C.C.C. (3d) 266, at para. 87.
    Included among the evidence that may be made admissible is investigative
    hearsay, albeit subject to instructions about its limited use:
Dhillon
,
    at para. 51;
Mallory
, at para. 92;
R. v. Starr
, 2000 SCC 40,
    [2000] 2 S.C.R. 144, at para. 184; and
R. v. Van
, 2009 SCC 22, [2009]
    1 S.C.R. 716, at para. 33. To deny the Crown the right to adduce evidence to
    rebut a claim of inadequate investigation, as with the defence of third party
    authorship, would be to leave an entirely distorted and incomplete picture with
    the jury.

The Scope of
    Appellate Review

[124]

To the extent that a ground of
    appeal has to do with a determination that involves the exercise of judicial
    discretion, appellate courts are to accord a significant degree of deference to
    the decision made at first instance. For example, a high degree of deference is
    accorded the decision of a trial judge that balances the probative value of
    evidence against its prejudicial effect:
R. v. B. (C.R.)
, [1990] 1
    S.C.R. 717, at pp. 733-734;
Handy
, at para. 153; and
R. v. Arp
,
    [1998] 3 S.C.R. 339, at para. 42. It is of no moment to the scope of appellate
    review whether this balancing of probative value and prejudicial effect takes
    place in the context of evidence of extrinsic misconduct tendered as part of
    the Crowns case in-chief, or, as here, in response to a claim of inadequate
    investigation.

[125]

Similar deference is accorded
    decisions of trial judges about the choice of remedy that is appropriate and just
    under s. 24(1) of the
Charter
. As with any discretion, the discretion
    conferred by that subsection must be exercised judicially. Appellate courts are
    entitled to intervene where the trial judge has misdirected him or herself, or
    where the trial judges decision is so clearly wrong that it amounts to an
    injustice:
Bjelland
, at para. 15;
R. v. Regan
, 2002 SCC 12,
    [2002] 1 S.C.R. 297, at paras. 117-118.

The Principles
    Applied

[126]

Before examining the merits of
    this, the principal ground of appeal, it is helpful to clear away two related
    decisions made by the trial judge that are not in issue here.

[127]

First, the appellant acknowledges,
    as did counsel for the Crown at trial, that an alternate suspect issue was in
    play in this case. Accordingly, the respondent was entitled to adduce relevant
    and admissible evidence that tended to show that Chung killed the deceased.

[128]

Second, the appellant accepts that
    the trial judge rightly concluded that an inadequate investigation issue was also
    in play here in connection with the investigation of Chung as an alternate
    suspect, if not the actual killer. Thus, it was open to the respondent to
    adduce relevant and admissible evidence before the jury that tended to show the
    inadequacy of the police investigation of Chungs potential involvement in the
    killing of the deceased.

[129]

What the appellant contests is the
    correctness of the trial judges ruling that prohibited the Crown at trial from
    calling Chung as a witness and adducing evidence derived from Chungs testimony
    to rebut evidence adduced by the respondent that tended to show Chung killed
    the deceased.

[130]

For reasons that I will develop, I
    agree with the appellant that the trial judges ruling reflects error on this
    issue.

[131]

In his lengthy pre-trial ruling,
    the trial judge referred to three rules of admissibility each of which involves
    the exercise of judicial discretion:

i.        exclusion to ensure
    trial fairness;

ii.       exclusion
    as a remedy for late disclosure; and

iii.      exclusion
    of evidence on the basis that its prejudicial effect                            exceeded
    its probative value.

The reasons do not refer, at least in terms, to the
    authority to exclude evidence under the trial management power. That authority,
    and those listed as items i and ii above, share common features, thus it is
    unnecessary to canvass the availability of the trial management power as an
    exclusionary mechanism in this case.

Exclusion to Ensure Trial
    Fairness

[132]

The first basis upon which the
    trial judge grounded his exclusion of the evidence is expressed in these terms:

In my view, it is just and appropriate to exclude the testimony
    of Mr. Chung, and any evidence derived from it, to ensure the fairness of the
    defendants trial.

[133]

The trial judge described several
    factors that underpinned his conclusion:

i.        the
    lack of a diligent and timely investigation of Chung as an                          alternate
    suspect;

ii.       the
    ongoing investigation of the respondent and his contacts                          with
    Chung through the use of electronic modalities and the                         uncertainty
    of when the investigation would be completed;

iii.      the
    lack of opportunity for the respondents counsel at trial to                         consider
    recent Crown disclosure; and

iv.      the
    lack of objectivity and unjustifiable disparity in the                                   investigative
    and prosecutorial treatment of the respondent                           and
    Chung.

[134]

The language used and the factors
    considered by the trial judge in excluding the testimony of Chung and its
    derivatives appear to be an amalgam of two exclusionary rules:

·

exclusion to ensure trial fairness, a common law rule now constitutionalized
    under ss. 7 and 11(d) in the
Charter
; and

·

exclusion as a remedy for failed or late disclosure of
    information relating to the investigation of Chung.

Each rule involves the exercise of judicial
    discretion.

[135]

I acknowledge at the outset that
    the scope of appellate review of the exercise of judicial discretion is
    narrowly and rightly confined, all the more so when the right of appeal invoked
    is limited to a question of law alone:
R. v. B.(L.)
(1997), 35 O.R.
    (3d) 35 (C.A.), at p. 59. That said, I am satisfied that the trial judge erred
    in law in excluding Chungs testimony and evidence derived from it on this basis.
    Read as a whole, the reasons on this issue reflect self-misdirection on the
    governing legal principles.

[136]

The trial judge did not have the
    benefit of the guidance provided by the Supreme Court of Canada in
Bjelland
when he made his ruling on March 2, 2009. Several principles emerge from
Bjelland
that are critical to an assessment of the correctness of the trial judges
    ruling.

[137]

First, a failure to disclose, as
    well delayed or late disclosure, without more, does not violate the right of an
    accused to a fair trial. As a general rule, an accused must go further to show
    actual prejudice to his or her right to make full answer and defence:
Bjelland
,
    at para. 21;
OConnor
, at para. 74. Absent an infringement of the
    right to make full answer and defence, no infringement of either s. 7 or s.
    11(d) of the
Charter
has occurred, thus the critical condition
    precedent to the operation of s. 24(1) as an exclusionary mechanism remains
    unsatisfied and access to the remedy s. 24(1) provides is unavailable.

[138]

Second, evidentiary exclusion is
    an exceptional remedy for failed or late disclosure, available only where the
    late disclosure renders the trial unfair and cannot be remedied by an
    adjournment and disclosure order, or where exclusion is necessary to preserve
    the integrity of the justice system:
Bjelland
, at para. 24.

[139]

Third, the appropriate focus in
    most cases of failed or late disclosure is remediation of any prejudice caused
    to the accused, as well as safeguarding the integrity of the justice system:
Bjelland
,
    at para. 26. Neither is necessarily secured by evidentiary exclusion.

[140]

Fourth, in some cases, an
    adjournment and disclosure order may not be appropriate because the admission
    of evidence compromises the integrity of the justice system. Evidentiary
    exclusion may be appropriate where the Crown has withheld evidence by
    deliberate misconduct amounting to an abuse of process.  On the other hand,
    even in such cases, societys interest in a fair trial that reaches a reliable
    determination of an accuseds innocence or guilt on all the available evidence
    cannot be ignored, especially where the crime charged is serious:
Bjelland
,
    at para. 27.

[141]

Finally, the fair trial interest
    is not the exclusive preserve of the accused.  A trial must be fair, not only
    from the perspective of the accused, but equally from the perspective of
    society generally:
Bjelland
, at para. 22. A fair trial is a trial that
    satisfies the public interest at getting at the truth, at the same time
    preserving basic procedural fairness for the accused:
Harrer
, at para.
    45.

Exclusion as a Remedy for Late
    Disclosure

[142]

The trial judge appears to have
    concluded that late disclosure, on its own, violated the respondents right to
    a fair trial and warranted exclusion of Chungs testimony and any evidence
    derived from it. However, following
Bjelland
and
OConnor
,
    the respondent was also required to show late disclosure caused actual
    prejudice to his ability to make full answer and defence:
Bjelland
, at
    para. 21;
OConnor
, at para. 74.

[143]

The trial judge does not appear to
    have considered the exceptional nature of evidentiary exclusion as a remedy for
    late disclosure. As
Bjelland
makes clear, evidentiary exclusion is
    reserved for those cases in which the usual remedy (an adjournment and
    disclosure order) would not be adequate or where exclusion was necessary to maintain
    the integrity of the justice system.  Neither applied here.

[144]

Further, the trial judge does not
    appear to have considered the bilateral nature of the fair trial interest in
    concluding that the exclusion of the entirety of Chungs evidence and its
    derivatives was just and appropriate in the circumstances. An accused does not
    have the exclusive right to a fair trial.

[145]

The trial judge does not appear to
    have considered any evidentiary exclusion short of an absolute bar of all the
    evidence from Chung and all the evidence derived from Chungs testimony. The
    effect of this ruling was to permit the respondent to raise an alternate
    suspect defence (Chung did it) and adduce evidence about the inadequacies of
    the police investigation, yet deny the Crown the opportunity to adduce the
    evidence of the alternate suspect to rebut the claim he killed the deceased.
    Chungs evidence could have been restricted, for example, by excluding evidence
    of the respondents confession with the result that the jury would be better
    positioned to decide whether Chungs alleged participation, or the inadequacy
    of the police investigation, raised a reasonable doubt about the respondents
    guilt. Permitting Chung to give evidence would not have deprived the respondent
    of his right to advance the alternate suspect and inadequate investigation
    issues before the jury and to adduce evidence in support of each. Excluding
    Chungs evidence forced the jury to make that decision on a distorted and
    incomplete evidentiary foundation.

[146]

The trial judge appears to have
    implicitly held that the respondent had a constitutional right to an adequate
    investigation of the case against him, including an investigation to determine
    whether the offence was committed by Chung.

[147]

The trial judge did not have the
    benefit of the reasons of this court in
Darwish
according to which an
    accused has no free-standing constitutional right to an adequate investigation
    of the case against him. Inadequacies in an investigation may lead to the
    ultimate failure of the prosecution, to the specific breach of a
Charter
right, or to a civil remedy, but, on their own, do not constitute a denial of
    the right to make full answer and defence:
Darwish
, at para. 29.

[148]

Any error in excluding the
    evidence of Chung and its derivatives on the ground of trial fairness, or as a
    remedy for late disclosure, is beside the point if the trial judge was correct
    in excluding the evidence on the ground that its prejudicial effect exceeded
    its probative value. It is to that basis of exclusion that I turn next.

Exclusion under General Exclusionary
    Discretion

[149]

The trial judge considered the
    Chung evidence, as a whole, to be of slight probative value. He described it as
    fragile evidence, not confirmed by any independent evidence, which spawned many
    contradictory inferences and raised the spectre of the miscarriage of justice.

[150]

In his analysis of the prejudicial
    effect of the Chung evidence, the trial judge referred to:

i.        the possibility of
    reasoning and moral prejudice against the        respondent;

ii.       the increased
    complexity of the trial;

iii.      the
    danger of unfair surprise because the Crown failed to call the evidence at the
    preliminary inquiry and the police failed to conduct a timely collateral
    investigation; and

iv.      the
    likelihood of an adjournment of trial proceedings and a further delay of one
    year before the trial could begin again with a serious risk that proceedings
    would be stayed under s. 11(b) of the
Charter
.

[151]

In my respectful view, the trial
    judges evaluation of the probative value and prejudicial effect of the Chung
    evidence as a whole, and his determination that the preponderance of
    prejudicial effect over probative value warranted exclusion of the evidence as
    a whole, constituted legal error.

[152]

First, in his assessment of the
    probative value, the trial judge focussed almost exclusively on that portion of
    Chungs testimony in which Chung recounted the purported confession of the
    respondent to the killing of the deceased. But there was more to Chungs
    testimony than the elicitation of the respondents alleged confession.
    Chungs denial of responsibility and his explanation of his activities at the
    relevant time had probative value in rebuttal of the respondents claim that
    Chung was the killer, even if the confession part of his evidence were
    excluded. Put differently, Chungs testimony and the derivative evidence was
    relevant and had probative value in relation to the alternate suspect defence
    advanced by the respondent.

[153]

Second, in his determination of
    the prejudicial effect of this evidence, the trial judge considered that the
    evidence generated moral and reasoning prejudice. Moral prejudice refers to the
    stigma of bad personhood. Reasoning prejudice relates to the prospect that the
    introduction of evidence will confuse the trier of fact and distract it from an
    informed consideration of the issues raised at trial.

[154]

The introduction of the Chung
    evidence would neither have created nor enhanced moral or reasoning prejudice.
    A substantial body of evidence had already been admitted about the respondents
    activities in the illicit drug trade and his association with Chung and the
    deceased. It was the respondent who introduced the alternate suspect issue and
    challenged the adequacy of the police investigation, especially as it related
    to Chung. The responsive evidence from Chung would not have involved anything
    new or different from what had already been introduced without objection.

[155]

Third, whether the police
    investigation of Chung was inadequate and whether the investigation of the
    appellant was a product of tunnel vision were not relevant factors in the
    cost benefit analysis required in connection with the probative value and
    prejudicial effect of the Chung evidence.

[156]

Fourth, the unfair surprise
    factor that the trial judge considered in his cost benefit analysis appears
    grounded, at least in part, on an adverse inference the trial judge drew from
    the failure of the Crown to call Chung at the preliminary inquiry and of the
    police to conduct a timely collateral investigation.

[157]

The Crown was under no obligation
    to call Chung at the preliminary. The failure to do so can sponsor no adverse
    inference, much less be a factor to consider in assessing the probative value
    or prejudicial effect of the Chung evidence. The inadequacy of the police
    investigation was advanced as a basis upon which the jury may have a reasonable
    doubt about the adequacy of the Crowns proof of the respondents guilt. The
    admissibility issue that required a decision related to the probative
    value/prejudicial effect balance of evidence responsive to the related claims
    that Chung was the killer and the police investigation was inadequate. To
    assign these factors a place of influence is to confuse a rule of admissibility
    with a substantive defence.

[158]

The trial judge erred in excluding
    the Chung evidence in its entirety.

Ground #2: The
Schell

and

Paquette
Error

[159]

This ground of appeal requires
    consideration of the correctness of a jury instruction about the basis upon
    which the respondents liability was to be determined. The instruction,
    repeated several times, attracted objection from both counsel at trial, but no
    further elucidation by the trial judge.

[160]

Some reference to the evidence
    adduced at trial and the positions advanced by the parties there is necessary
    to situate this claim of error in its proper place.

The Evidence at Trial

[161]

It was common ground at trial that
    each of the respondent and Chung had an equivalent motive and opportunity to
    kill the deceased. The parties were also of one mind that each engaged in
    conduct after the deceased was killed that could be used as circumstantial
    evidence of their involvement in it. In the circumstances, the jury could also
    infer that, rather than single authorship, the respondent and Chung together
    killed the deceased.

[162]

The forensic pathologist who
    conducted the post-mortem examination testified that the deceased had been
    stabbed 12 times with at least one sharp object of a particular dimension. The
    doctor could not exclude the involvement of more than one knife with similar
    dimensions, thus could not confirm the number of stabbers or deny that more
    than one person could have been involved in the killing.

[163]

Evidence admitted at trial could
    support a finding that Chung and the respondent were involved in the drug
    business and frequently communicated with one another. Although the deceased
    may have met Chung briefly, there was no evidence of any dealings of substance
    between them.

The Positions of the Parties at Trial

[164]

At the pre-charge conference,
    counsel and the trial judge discussed the basis of liability, more accurately,
    the modes of participation to be left for the jurys consideration.

[165]

Trial counsel for the respondent
    contended that there was no air of reality to support an instruction on
    co-principals. The evidence adduced at trial was entirely circumstantial. Each
    of the respondent and Chung had motive and opportunity and said and did things
    afterwards that could support an inference that one or the other killed the
    deceased. But the evidence was incapable of supporting an inference of joint
    participation.

[166]

The respondents counsel at trial
    agreed that the jury did not need to decide the extent of Chungs involvement,
    but rather needed to be satisfied beyond a reasonable doubt only that the
    respondent was a principal in the killing. There was no evidence upon which the
    jury could conclude that the respondent was an aider or an abettor of Chung,
    nor was there any evidence that more than one weapon was involved. Counsel
    sought an instruction that if the jurors were unable to decide whether the
    respondent or Chung killed the deceased, the respondent was entitled to an
    acquittal.

[167]

The trial Crown sought an instruction
    that left the respondents liability to the jury on the basis that he was a
    co-principal with Chung in the killing of the deceased. She also sought an
    instruction that permitted the jurors to find the respondent guilty as a
    principal with Chung as his helper.

[168]

The trial Crown noted that the
    pathologist could not exclude the involvement of more than one person in the
    stabbing of the deceased. The Crown contended that there was evidence of
    pre-concert, since both Chung and the respondent were involved in cocaine
    transactions. Each had an equivalent opportunity and motive to kill the
    deceased and said and did things afterwards that confirmed their participation
    in the killing.

[169]

The trial Crown expressly
    disavowed reliance on s. 21(2) of the
Criminal Code
as a basis of
    liability and conceded that there was no air of reality to a submission that
    the respondent participated as an aider or abettor.

The Ruling of the Trial Judge

[170]

The trial judge refused to
    instruct the jury that the respondent could be found guilty as a co-principal.
    He concluded:

In my view, looking at the evidence as a whole, there is no
    evidence that the 12 stab wounds were inflicted by more than one person.
    Therefore, there will be a charge like
Schell
and
Paquette
,
    and the submissions of counsel will have to be cast accordingly.

[171]

The trial judge directed the trial
    Crown that, in her closing address, she was to take the position that only one
    person stabbed the deceased to death and that person was the respondent.

The Charge to the Jury

[172]

In his final instructions to the
    jury, the trial judge canvassed the the positions of the parties and reviewed
    the evidence on which each relied to support their position.  In accordance
    with his earlier ruling and direction to the trial Crown, the trial judge told
    the jury that the Crowns position was that the respondent killed the deceased.

[173]

On at least four separate
    occasions during his lengthy charge, the trial judge instructed the jury in
    these or similar terms:

The identity of Kelly Spackman as the person who
    killed Alexander Christoff must be proven beyond a reasonable doubt before a
    verdict of guilty is proper as a matter of law against him. In this case,
    members of the jury, there is no evidence that more than one person stabbed
    Alexander Christoff twelve times. Thus, you will deliberate on the issue of
    whether or not the Crown has proven beyond a reasonable doubt that Kelly
    Spackman was the person who stabbed Alexander Christoff twelve times. The mere
    presence of a person, such as Kelly Spackman or Mr. Chung, at the scene of a
    crime does not make a person guilty of the crime. If, after reasonable and
    thorough deliberations, you are unable to determine whether Kelly Spackman or
    Mr. Chung stabbed Alexander Christoff twelve times, you must return a verdict
    of Not Guilty. The Crown must prove, beyond a reasonable doubt that Mr. Chung
    was not the person who stabbed Alexander Christoff twelve times.

The Argument on Appeal

[174]

For the appellant, Mr. Alvaro says
    that the excerpted instruction, based on
R. v. Schell and Paquette
(1977),
    33 C.C.C. (2d) 422 (Ont. C.A.), should not have been given. The instruction
    should only be given in cases in which there is no evidence of a joint venture
    and the evidence indicates that one of two persons committed the offence. In
    those circumstances, and only in those circumstances, is it correct to instruct
    the jury that if they cannot determine which of the two persons committed the
    offence, they are to find both (or the one on trial) not guilty.

[175]

Mr. Alvaro submits that the
Schell
    and Paquette
instruction is not required, or correct in all cases in which
    two persons are said to be the killer. In this case, the Crowns position was
    that the respondent killed the deceased. The Crown never suggested that the
    respondent did so without any help, only that the respondent was guilty as a principal
    irrespective of the involvement of Chung.

[176]

Mr. Alvaro contends that the trial
    judges direction to the Crown and the final instructions forced a
    reconfiguration of the Crowns position and had the effect of telling the jury
    to find the respondent not guilty if they had a reasonable doubt about Chungs
    involvement in the killing.

[177]

For the respondent, Mr. Wilkinson
    acknowledges that, by withdrawing a co-principal basis of liability from the
    jury, the trial judge erred. The trial judge was wrong when he decided that a
    jury finding that the respondent and Chung were co-principals in the stabbing
    would be speculative, incapable of support by reasonable inferences drawn from
    the evidence adduced at trial. The trial judge appears to have imposed limits
    on inference-drawing that were inapplicable and appropriate only to curtail the
    scope of expert opinion evidence. There was an air of reality to the
    co-principals basis of liability and it should have been left to the jury.

[178]

Mr. Wilkinson says that the effect
    of the jury charge on this issue was that if the jury had any doubt about
    Chungs participation, they were required to find the respondent not guilty
    unless they concluded that Chung was simply a witness or assisted the
    respondent after the killing had occurred. According to Mr. Wilkinson, the jury
    should have been told that if they accepted the evidence implicating both the
    respondent and Chung, they could convict the respondent without having to decide
    Chungs precise conduct.

[179]

Mr. Wilkinson submits, however,
    that despite the error in the instruction on the liability of co-principals, this
    ground of appeal should fail. The trial judge offered the trial Crown the
    option of a mistrial at the conclusion of his jury instructions. The Crown
    declined to accept the trial judges offer and should be estopped from the
    remedy of a new trial to advance a new or alternative theory of liability. In
    any event, the evidentiary foundation for co-principals liability barely met
    the air of reality test and does not satisfy the standard required for an
    appeal from an acquittal to succeed.

The Governing Principles

[180]

A person can become a party to an
    offence in different ways. He or she may be a principal, aid or abet someone else
    to commit the offence, or join and pursue a common unlawful purpose with
    another or others who commit the offence. A person may be a principal alone or
    along with another or other persons.

[181]

Section 21(1)(a) of the
Criminal
    Code
governs the liability of principals.  The provision applies where two
    or more people actually commit an offence and makes both persons individually
    liable for that crime. The provision also applies where two or more persons
    together form an intention to commit an offence, are present at its commission,
    and contribute to it, although each does not personally commit all the
    essential elements of the offence. Provided the trier of fact is satisfied
    beyond a reasonable doubt that an accused committed all elements of a crime, it
    is of no moment whether another person may also have committed it:
R. v.
    Pickton
, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 63.

[182]

Sometimes, the involvement of a
    person or persons other than the accused in the circumstances of the offence may
    be clear, but the extent of their involvement may be uncertain. In other cases,
    uncertainty about the involvement of another may not matter to the liability of
    the accused whom the trier of fact is satisfied committed all the elements of
    the crime:
Pickton
, at paras. 62-63.

[183]

Co-principal liability for
    concurrent acts of two or more persons often arises in prosecutions for murder
    or manslaughter. Two or more people each individually beat or stab the victim.
    The victim dies. It may be unclear which attack caused the victims death as
    opposed to other injuries. Legal principle does not require the trier of fact
    to determine who struck the fatal blow for co-principal liability to attach
    to each participant. Whether this wound or that, or some combination of the
    two, caused the victim to die is of no concern for co-principal liability,
    provided both assaults are found to be a significant contributing cause of
    death:
Pickton
, para. 66;
R. v. Ball
, 2011 BCCA 11, (2011),
    267 C.C.C. (3d) 532, at para. 28.

[184]

Where evidence admitted at trial
    properly supports an alternate mode of participation under s. 21 of the
Criminal
    Code
, an instruction on that provision should be left to the jury, even
    though the identity of the other participant or participants is unknown, and
    even though the precise part played by each may be uncertain:
Pickton
,
    at para. 58. In these cases, the jury need not be unanimous on the nature of an
    accuseds participation in an offence, provided all are satisfied that the
    accused committed the offence in one way or another:
Pickton
, at para.
    58;
R. v. Thatcher
, [1987] 1 S.C.R. 652, page 694.

[185]

In prosecutions of a single
    accused in which the evidence provides an air of reality for a submission that
    more than one person was involved, a trial judge may instruct the jury about
    modes of participation other than sole principal even though the identity of
    the other participants may be unknown and the precise part played by each maybe
    uncertain:
R. v. Sparrow
(1979), 51 C.C.C. (2d) 443 (Ont. C.A.), at pp.
    457-458;
R. v. Isaac
, [1984] 1 S.C.R. 74, at p. 81. On the other hand,
    where the evidence fails to provide an air of reality to the claim of anothers
    involvement, an alternative mode of participation should not be left for the
    jurys consideration:
Sparrow
at p. 458.

[186]

In
Schell and Paquette
,
    the deceased, a child of three, died as a result of a subdural hematoma that
    destroyed the vital centres of her brain. The usual causes of the kind of
    injury suffered by the deceased were one or more blows to the head involving
    the application of considerable force, or a violent shaking of the head. There
    was no direct evidence about how the fatal injury had been inflicted. The
    deceased had also suffered a number of other injuries over an extended period
    of time but none contributed to her death. Schell and Paquette were the only
    persons who had custody and control over the deceased at the material time. Each
    had mistreated the deceased on earlier occasions. Schell denied killing the
    deceased.  Paquette did not testify.

[187]

The trial judge did not instruct
    the jury on s. 21(2) of the
Criminal Code
and mentioned ss. 21(1)(b)
    and (c), but pointed out that there was no evidence of aiding or of abetting.
    It was in those circumstances that Zuber J.A., on behalf of the court,
    concluded that the jury should have been instructed that they should convict
    one or the other and, if they could not decide which, should acquit both:
Schell
    and Paquette
, at p. 428.

The Principles Applied

[188]

The parties agree that the trial
    judge erred in including in his charge the instruction that forms the subject
    matter of this ground of appeal, but they differ about the impact of the error
    on the jurys verdict of acquittal. I will explain why I agree with the parties
    that the impugned instruction should not have been included in the jury charge
    in the circumstances of this case.

[189]

In this case, the respondent and
    Chung were involved together in the supply of controlled substances. The
    deceased was a purchaser, who was out about $30,000 that he paid the respondent
    in advance for drugs that the respondent failed to deliver. The deceased had
    made some threats to the respondent about what might happen if either the drugs
    or a refund of the purchase price was not forthcoming.

[190]

Chung and the respondent were both
    in the immediate vicinity of where the deceaseds body was found at about the
    time the deceased was killed. Their subsequent conduct and repeated contact
    confirmed the closeness of their relationship. Evidence of their common motive,
    equivalent opportunity, and subsequent association left open an inference of a
    common venture.

[191]

The trial judges conclusion that
    the cumulative effect of the evidence could not sustain an inference that the
    respondent and Chung were co-principals in the killing rests, in part at least,
    on his determination that the opinion evidence of the forensic pathologist
    excluded participation by more than one person in the killing.  This
    determination, in turn, originates in either a misapprehension of the evidence
    of the pathologist, or a misapplication of the principles governing the
    admissibility of expert opinion evidence to the determination of whether the
    evidence, as a whole, could support an inference that more than one principal
    was involved in the killing.

[192]

The forensic pathologist could not
    exclude the involvement of two knives or other cutting instruments of similar
    dimensions. The wound dimensions could not be definitive on the issue. Nor
    could the pathologist say how many persons were involved in the stabbing.
    Speculation is no more the province of an expert than it is of any other
    witness.

[193]

On the other hand, whether there
    is an air of reality to submit a mode of participation to the jury for their
    consideration is a function of the cumulative effect of the evidence and the
    availability of the essential inference as one of the field of inferences
    available on the evidence as a whole.

[194]

The availability of an inference
    of joint participation distinguishes this case from
Schell and Paquette
and, as the parties agree, renders the instruction required there inappropriate
    here. The jury should have been told that if they were satisfied that both
    participated in the killing of the deceased, they could convict the respondent,
    without having to decide Chungs precise role, as long as they were satisfied
    that the respondents participation satisfied the essential elements of the
    offence charged:
Pickton
, at para. 63.

[195]

In the result, the misdirection
    left the respondents liability to be determined on a basis that excluded a
    mode of participation available on the evidence.  I will examine the impact of
    this misdirection after my discussion of the remaining grounds of appeal.

Ground #3: Exclusion of Intercepted Private Communication
    as Evidence

[196]

This ground of appeal challenges a
    ruling made by another judge (the reviewing judge) who heard and decided an
    application that invoked the decision in
R. v. Garofoli
, [1990] 2
    S.C.R. 1421 in connection with an authorization to intercept private
    communications. As a result of the motion judges decision, several intercepted
    private communications that the Crown proposed to introduce at trial were ruled
    inadmissible because of a violation of s. 8 of the
Charter
.

[197]

Some additional background is
    necessary to permit an adequate examination of this ground of appeal.

The Background

[198]

At trial, the Crown proposed to
    adduce evidence of 16 intercepted private communications. Nine calls were
    offered to demonstrate the relationship between the respondent and Chung, an
    association that involved the supply of drugs to others. Seven calls were tendered
    to establish things done and said by the respondent after the killing of the
    deceased.

[199]

Counsel for the respondent at
    trial contended that the supportive affidavit of Det. Sgt. Saunders failed to
    satisfy the investigative necessity requirement in s. 186(1)(b) of the
Criminal
    Code
and was deliberately misleading in its claim that potential witnesses
    would not co-operate in providing information to investigators for fear of
    reprisal. Trial counsel also argued that the authorizing judge erred in relying
    on unsworn answers provided by the affiant during the
ex parte
application in satisfaction of the statutory conditions precedent to be met
    before authorization may be given.

The Supportive Affidavit

[200]

The affidavit filed in support of
    the application for the authorization  identified both the respondent and
    Chung, among others, as Primary Persons of Interest and sought authority to
    intercept their private communications, along with those of other known and
    unknown persons, in respect of the offence of first degree murder and related
    preliminary and consequential offences.

[201]

The affidavit recites the various
    orders requested, provides an overview of the investigation, then continues
    with a detailed, 160-page
History and Chronology of the Investigation
that
    describes what investigators had done and found out during the six-week period
    after the deceaseds body was found.

[202]

In the final 30 pages of the
    affidavit, Det. Sgt. Saunders summarized the grounds for his belief that
    interception of the private communications of the named objects, including the
    respondent and Chung, would assist in the investigation by providing evidence
    of the listed offences. The officer then described the other investigative
    techniques that had been tried and failed or were unlikely to succeed.  Among
    the other investigative techniques described are these:

i.        informants/Crime Stoppers
    tips;

ii.       undercover
    officers;

iii.      search
    warrants/production orders;

iv.      dialled number
    recorders;

v.       surveillance;

vi.      canvass and search
    of crime scene;

vii.     tracking warrant;

viii.    interviews;

ix.      forensics;

x.       photographic line
    ups; and

xi.      public appeal.

For each technique, the affiant explained briefly why
    it had not been tried or, if tried, why it had failed to provide evidence that
    tended to show where the deceased was killed and who killed him.

The Endorsement of the Authorizing Judge

[203]

The authorizing judge, who was
    neither the reviewing judge nor the trial judge, released an endorsement in
    which he recorded his findings under s. 186(1) of the
Criminal Code
.
    In connection with the investigative necessity requirement, the authorizing
    judge concluded:

[3]      I am also satisfied that the second ground of
    investigative necessity set out in section 186 exists in this case.
    Specifically, I am satisfied that other investigative procedures have been
    tried and have failed to garner the evidence necessary for a successful
    prosecution and, as well, that those other investigative procedures are
    unlikely to succeed in producing such evidence. As I have already mentioned,
    other investigative procedures have been employed in this case and have yielded
    some results.  Indeed, they may still produce further results. However, the
    evidence filed makes it clear that those investigative procedures by themselves
    will not succeed in obtaining the required evidence to pursue charges with any
    reasonable chance of success. Part of this reality arises from the apparent
    reluctance of individuals with knowledge to come forward with information given
    their concern as to possible retaliation against any witnesses. Some of these
    individuals may also be reluctant to come forward given they themselves may
    have been involved in criminal activity, namely, the sale and or use of illegal
    drugs. The investigation is further complicated by the lack of certainty
    regarding the actual scene of the crime, which is believed to be different from
    the scene where the body of Mr. Christoff was found, the [consequent] lack of
    direct forensic evidence and the lack of any known eyewitnesses to the actual
    event.

[4]      The offence which is being investigated is the most
    serious of offences. The problems facing the investigation, taken with the
    affidavit material detailing the results of the investigation to date,
    establishes to my satisfaction the requirement of investigative necessity and
    also establishes that there is no other reasonable alternative method of
    successfully investigating these particular crimes  see
R. v. Araujo
,
    [2000] 2 S.C.R. 992.

The Reasons of the Reviewing Judge

[204]

The reviewing judge set aside the
    authorization on the basis that the supportive affidavit failed to establish
    the investigative necessity requirement in s. 186(1)(b). He also excluded
    the intercepted private communications that Crown counsel proposed to adduce in
    evidence. This exclusion was based on s. 24(2) of the
Charter
because the interception process had offended s. 8.

[205]

The reviewing judge identified
    several deficiencies in the police investigation and in the affiants
    explanation for the failure of other investigative procedures to yield evidence
    about who killed the deceased. The deficiencies included:

i.        the
    failure of police to search the respondents vehicle on March 15, 2005, within
    a week of discovery of the deceaseds body, despite the respondents consent to
    the search;

ii.       the unexplained
    failure of police to investigate several      witnesses with material
    information to provide;

iii.      the
    affiants conclusory assertions, unsupported by any specific allegations, that
    fears of reprisal on the part of some members of the drug culture rendered
    their accounts incomplete and unhelpful;

iv.      the
    affiants conclusory assertions that persons with knowledge of material
    circumstances declined to provide that information because of their affections
    for some of the principals; and

v.       the
    affiants unsupported and conclusory statements about the reluctance of those
    with criminal antecedents to co-operate with investigators.

[206]

In the end, the reviewing judge
    concluded that the affidavit had failed to satisfy the investigative necessity
    requirement for two reasons:

[85]    For the foregoing reasons, I find that the requirement
    of investigative necessity was not made out due to the failure of the police to
    interview, at the very least, Messrs. Pistore, Chu, Powell and Seraphim.
    Additionally, I am troubled by the failure of the police to accept Mr.
    Spackmans offer to search his car. But I reject the other arguments advanced
    by Mr. Lacy as reasons to find that the requirement of investigative necessity
    was not satisfied.

[207]

The reviewing judge added some comments
    about the affiants motivation:

[86]    The gravity of the failure to interview is exacerbated
    by the fact that D. Sgt. Saunders made assertions that were unsupportable on
    the evidence.  At best, he was reckless with the truth; at worst, he made these
    comments in order to mislead the authorizing Justice.

[87]    In short, I accept Mr. Lacys submission that, in
    seeking the Part VI authorization, D. Sgt. Saunders was motivated not by
    investigative necessity but rather by investigative efficacy. In cross-examination
    at the preliminary inquiry on October 3, 2006, D. Sgt. Saunders indicated a
    marked preference for wiretaps over interviews:

Well, throughout the past history and in other cases where I
    have dealt with circumstances along those lines
I find that whenever people
    are talking over the telephone to one another versus interviews that they
    provide the police before to be more truthful
and in fact that is exactly
    what did come to surface as a result of that particular interpretations [
sic
].
    [Emphasis added.]

While not entirely clear, it appears that the reference to
    circumstances along those lines refers to situations where D. Sgt. Saunders
    thought that witnesses were being less than truthful with the police.

[208]

The reviewing judge rejected the
    submission advanced by the respondents counsel at trial that the authorization
    was also vitiated because the authorizing judge had relied upon unsworn answers
    provided by the affiant when he appeared before the authorizing judge. The
    reviewing judge was satisfied that the unsworn answers provided by the affiant repeated
    information contained in the affidavit itself.

[209]

The reviewing judge expressed his
    conclusions for setting aside the authorization in these terms:

[96]    D. Sgt. Saunders opinion that the requirement of investigative
    necessity under s. 186 of the
Code
was met in the circumstances of the
    case lacked an adequate factual basis.  Indeed, for the reasons outlined above,
    his unsubstantiated, misleading claims about potential witnesses fear of
    reprisal constituted, at best, a reckless disregard for the truth, if not an
    outright fraud.  Moreover, there can be no question that these claims
    influenced the authorizing Justices determination that the condition precedent
    of investigative necessity had been satisfied.  Indeed, paragraph 3 of his
    endorsement makes it clear that this was the principal reason he concluded that
    further interviews would not obtain the required evidence to pursue charges
    with any reasonable chance of success.

[97]    Given the nature of these misrepresentations and the
    role they played in the authorizing Justices decision, it cannot be said that,
    in their absence, the authorization would nonetheless have been given.
    Consequently, the authorization of April 27, 2005 is set aside.

The
    Arguments on Appeal

[210]

For the appellant, Mr. Alvaro
    acknowledges that, as he began his reasons, the reviewing judge correctly
    stated the test to be applied. But in the end, Mr. Alvaro says, the
    reviewing judge erred in the application of the test.

[211]

Mr. Alvaro submits that the
    critical component here was the requirement of investigative necessity. The
    issue for the reviewing judge to decide was whether, on the record before the
    authorizing judge, as amplified on the review, there was reliable information
    on the basis of which the authorizing judge
could
conclude that there
    were no other reasonable investigative alternatives to authorize interceptions
    in the circumstances of the criminal inquiry.  Investigators were not required
    to exhaust every other potential form of investigation. What happened here is
    that the reviewing judge engaged in a microscopic dissection of the
    investigation, an exercise that he was not entitled to pursue.

[212]

Mr. Alvaro says that the reviewing
    judge exceeded his authority by weighing and reconsidering
de novo
the
    evidence before the authorizing judge as amplified on the review. The reviewing
    judge discounted the fears of reprisal expressed by some on police interview,
    despite evidence to the contrary, as well the unwillingness of those involved
    in criminal conduct to co-operate with investigators. The reviewing judge
    failed to consider the contents of the affidavit as a whole and drew
    unsubstantiated inferences about the affiants state of mind.

[213]

For the respondent, Mr. Wilkinson
    submits that the reviewing judge did not err in his application of the test on
    review, but, even if he did make a mistake, it all comes to naught in the
    circumstances of this case.

[214]

Mr. Wilkinson reminds us that we
    are to accord deference to the decision of the reviewing judge, just as he was
    to accord deference to the conclusions of the authorizing judge. The reviewing
    judge was well within his authority to find, and did find on the evidence
    before him, that there was no evidence on the basis of which the authorizing
    judge could have found that the test of investigative necessity had been met.
    Investigative expediency is not investigative necessity.  The flaws identified
    by the reviewing judge were fatal to a display of investigative necessity. The
    conclusory statements of the affiant about the efficacy of other investigative
    procedures were at once inadequate and misleading.

[215]

Mr. Wilkinson says that this is a
    case of no harm, no foul, even if the reviewing judge was wrong. The substance
    of much of what the intercepted private communications were offered to prove
    was contained in an
Agreed Statement of Facts
filed at trial and what
    remained could have been established by calling as witnesses at trial (if
    available) those whose calls were intercepted to give
viva voce
evidence of what was said. The Crown failed to do so and sought to re-open its
    case too late in the proceedings to warrant reception of the evidence.

The Governing
    Principles

[216]

The principles that govern our
    determination of this ground of appeal are not in controversy.

[217]

The investigative necessity
    requirement enacted by s. 186(1)(b) of the
Criminal Code
is
    established if the supportive affidavit demonstrates that, practically
    speaking, no other reasonable alternative method of investigation is available,
    in the circumstances of the particular criminal inquiry:
R. v. Araujo
,
    2000 SCC 65, [2000] 2 S.C.R. 992, at para. 29. The requirement must be
    interpreted in a practical common sense fashion. Judges may issue
    authorizations under s. 186(1) of the
Criminal Code
even when police
    have not pursued all other investigative techniques:
Araujo
, at para.
    33.

[218]

A variety of grounds may afford an
    authorizing judge a basis to conclude that normal investigative techniques are
    unlikely to succeed, among them, a demonstration that the techniques would not
    reveal key information or are ineffective against the group under
    investigation:
Araujo
, at para. 33.

[219]

The reviewing judge does not
    substitute his or her view for that of the authorizing judge. The review is not
    a hearing
de novo
of the application for authorization. If, based on
    the record before the authorizing judge, as amplified on the review, the
    reviewing judge concludes that the authorizing judge
could
have
    granted the authorization, then the reviewing judge is not entitled to interfere:
Garofoli
, at p. 1452. On the review, the existence of fraud,
    non-disclosure, misleading evidence, and new evidence are relevant, but only to
    determine whether there remains any reliable evidence that might reasonably be
    believed on the basis of which the authorizing judge
could
have
    granted the order:
Garofoli
, at p. 1452;
Araujo
, at para. 54;
R. v. Pires
;
R. v. Lising
, 2005 SCC 66, [2005] 3 S.C.R. 343,
    at para. 30.

[220]

Appellate review of decisions of
    reviewing judges also involves deference to the findings of fact of the
    reviewing judge in his or her assessment of the original record as amplified on
    review:
R. v. Grant
(1998), 132 C.C.C. (3d) 531, at p. 540; and
R.
    v. Agensys International Inc
. (2004), 71 O.R. (3d) 515 (C.A.), at para.
    30. An appellate court ought not to interfere with the findings of the
    reviewing judge absent an error of law, a misapprehension of the evidence, or a
    failure to consider relevant evidence:
Grant
, at p. 540;
Agensys
    International Inc
., at para. 30.

The Principles
    Applied

[221]

As I will explain, I would give
    effect to this ground of appeal. The reviewing judge erred in concluding that,
    on the record before the authorizing judge, as amplified on review, there was
    no reliable evidence that might reasonably be believed on the basis of which
    the authorizing judge
could
have granted the authorization.

[222]

First, despite his statement of
    the proper standard of review at the outset of his reasons, the balance of the
    reviewing judges reasons, read as a whole, betrays the proper application of
    this standard. What appears, rather, is a
de novo
review, on an
    item-by-item basis, of each investigative procedure undertaken and a critique
    of the investigating officers conclusions about its efficacy. It is not the
    role of the reviewing judge to micromanage homicide investigations.

[223]

Second, the piecemeal approach
    followed by the reviewing judge is incompatible with his obligation to review
    the affidavit material as a whole, and to acknowledge the authority of the
    authorizing judge to draw reasonable inferences from the contents of the
    supportive affidavit.

[224]

Third, the reviewing judge failed
    to articulate the basis upon which he rested his conclusions about the state of
    mind, purposefulness, and lack of understanding of the authorization process
    demonstrated by the affiant:
R. v. Ebanks
, 2009 ONCA 851, 97 O.R. (3d)
    721, at paras. 37 and 42.

[225]

Fourth, the reviewing judge seems
    to have lost sight of the common sense reality of the specific criminal inquiry
    in which investigators were engaged. A drug dealer, pressing others for a
    return of funds advanced or delivery of drugs purchased, was stabbed to death,
    his body dumped in the snow. No murder scene. No eyewitnesses. No weapon. A
    group of buyers, sellers and others disinclined to offer assistance.

[226]

Finally, in stating his conclusion
    on the validity of the authorization, the trial judge misstated the standard of
    review:

[97]    Given the nature of these misrepresentations and the
    role they played in the authorizing Justices decision, it cannot be said that,
    in their absence, the authorization
would
nonetheless have been
    given.  Consequently, the authorization of April 27, 2005 is set aside. [Emphasis
    added.]

The relevant standard is whether, based on the record
    before the authorizing judge, as amplified on the review, the authorization
could
have been granted, not whether it would have been granted:
Garofoli
,
    at p. 1452.

Ground #4: The References to Wrongful
    Convictions and Miscarriages of Justice

[227]

The final ground of appeal relates
    to several references in the charge to the jury to wrongful convictions and the
    potential for miscarriages of justice. A brief reference to the closing address
    of trial counsel for the respondent and the charge to the jury will set this
    claim of error in its appropriate context.

The Address of
    Defence Counsel

[228]

Trial counsel for the respondent
    referred to the dangers of wrongful convictions and the history of miscarriages
    of justice in Canada. These references were linked to submissions about the
    inadequacies of the police investigation of those responsible for the killing
    of the deceased and the tunnel vision of the investigators.

[229]

In his closing address, trial counsel
    for the respondent did not mention the names of any persons wrongly convicted
    or the victims of miscarriages of justice.

The Trial Judges
    Charge

[230]

The final instructions of the
    trial judge contain repeated references to wrongful convictions and
    miscarriages of justice. The first reference appears in an early portion of the
    instructions explaining the meaning to be assigned to the standard of proof:

Lastly, let me comment on the miscarriages of justice
    that have recently occurred in Canada during the prosecutions of Guy Paul
    Morin, Donald Marshall, David Milgaard and others. You are required by your
    oath of office to consider the evidence in this case, the submissions of
    counsel and my instructions to you. If, after diligently doing so, you are
    satisfied beyond a reasonable doubt of the guilt of the defendant you must
    return a verdict of guilty against him. To decline to return a verdict of
    guilty if you are satisfied beyond a reasonable doubt of the guilt of the
    defendant because of the miscarriages of justice in other cases would be an
    improper step on your part. However, errors can be made in the administration
    of criminal justice that lead to the conviction of innocent persons. Our recent
    history includes a number of such errors. There can be no greater human tragedy
    than the conviction of the innocent. Do not let these other cases affect your
    interpretation of the principles of reasonable doubt but be cautious, very
    cautious, in your application of them to this case.

The jury was provided with a written copy of the
    entire charge for their use during deliberations.

[231]

The trial judge repeated these
    references to wrongful convictions and miscarriages of justice in his
    discussion of the position of the defence, which included about 40 pages
    reviewing the defence of inadequate investigation. A later portion of his
    instructions is entitled
The History of Miscarriages of Justice
.

[232]

Counsel for the Crown at trial did
    not object to the charge to the jury on this ground.

The Arguments on
    Appeal

[233]

For the appellant, Mr. Alvaro says
    that the repeated references in the final instructions to wrongful convictions
    and miscarriages of justice reflects error in much the same way that similar
    references in the closing addresses of defence counsel have attracted appellate
    disapproval. In jury instructions, these references reflect error in much the
    same way that instructions about the timid juror introduce inappropriate
    considerations into the deliberation process.

[234]

For the respondent, Mr. Wilkinson
    prefers to characterize the instructions as nothing beyond fair comment about a
    very weak prosecution case. What was said properly focussed on the inadequacies
    of the investigation and the acknowledged dangers associated with tunnel
    vision. What was said amounted to little more than an instruction that jurors
    were to approach the evidence with caution.

The Governing
    Principles

[235]

No parade of precedent need be
    marshalled to support the authority of a trial judge to comment in final jury
    instructions about the weight to be assigned to various items of evidence and
    even factual conclusions. The standard to be applied where factual comments are
    challenged on appeal as beyond what is permitted is somewhat elusive:
R. v.
    Ruddick
(1980), 57 C.C.C. (2d) 421 (Ont. C.A.), at pp. 435-436; and
R.
    v. Yanover
(1985), 20 C.C.C. (3d) 300 (Ont. C.A.), at p. 319.

[236]

The undoubted authority of a trial
    judge to express his or her views on factual issues, including but not only the
    credibility of witnesses, is not unconfined. The language used must not leave
    the jury to think that they must find the facts in synch with the manner
    indicated by the judge:
Ruddick
, at p. 435;
Yanover
, at p.
    319. Further, the charge, read as a whole, must not deprive an accused of the
    fair presentation of his or her case to the jury:
Ruddick
, at p. 435;
Yanover
,
    at p. 319.

[237]

An appellate court may intervene
    where the opinion expressed by the trial judge is far stronger than the
    circumstances warrant, or where the judge has expressed his or her opinion so
    strongly that there is a likelihood of the jury being overawed by the opinion,
    despite instructions that jurors are not bound by the judges opinions:
Yanover
,
    at p. 320.

[238]

When reference is made to wrongful
    convictions and miscarriages of justice in the closing addresses of defence
    counsel, the decision in
R. v. Horan
, 2008 ONCA 589, 237 C.C.C. (3d)
    514 offers valuable assistance about the boundary between the permissible and
    the forbidden. Reference to a parade of wrongful convictions risks inviting
    jurors not to convict, despite the absence of a reasonable doubt, because of a
    possibility, not based on the evidence or lack of evidence, that the accused
    might later be found to have been innocent:
Horan
, at para. 67. This
    possibility seems enhanced when the author of the reference is the trial judge
    and the reference appears in his or her final instructions to the jury.

[239]

Further,
Horan
teaches
    that final addresses should not refer to specific cases by name or attempt to
    draw parallels between those cases and the case being tried:
Horan
, at
    para. 69.

The Principles
    Applied

[240]

I would give effect to this ground
    of appeal. The repeated references in the charge to the jury to wrongful
    convictions and miscarriages of justice reflect error.

[241]

The case for the Crown consisted
    entirely of circumstantial evidence, relying on evidence of opportunity,
    motive, and things said and done after the killing to prove that the respondent
    killed the deceased. No eyewitness testified. No jailhouse informant gave
    evidence. It was not an overwhelming case, but it was one that was ideally
    suited for a jury to decide.

[242]

The case for the respondent
    pointed to another person as the killer.  Chung had motive, opportunity, and
    said and did things after the killing that pointed to him as the killer. The
    investigation was inadequate, the product of tunnel vision, failing to
    thoroughly investigate Chung and focusing exclusively on the respondent. The
    likelihood of Chungs involvement and the investigative inadequacies, coupled
    with the respondents denial during police interviews admitted as part of the
    Crowns case, raised a reasonable doubt about the respondents guilt. The
    respondent did not testify.

[243]

As a general rule, as is the case
    with the closing address of defence counsel, a reference in the charge to the
    jury to the history in Canada of  demonstrated wrongful convictions will not
    help jurors in their task:
Horan
, at para. 69. Contemporary Canadian
    jurors well understand the nature of their task and the importance of making an
    informed and correct decision after a thorough consideration of the whole of
    the evidence and in accordance with the governing legal principles as explained
    by the trial judge. They need not be bludgeoned by a barrage of reminders that,
    sometimes, mistakes are made.

[244]

Second, nothing should be said by
    a trial judge, whether explicitly or by necessary implication from the
    repetition of references to the subject, to overstate the extent of the problem
    of wrongful convictions:
Horan
, at para. 69. Although a single
    wrongful conviction is one too many, there is, as yet, no parade or history,
    as the heading in the written charge announced in bold type, of wrongful
    convictions in Canada.

[245]

Third, the trial judge should not
    have made reference to specific cases of documented wrongful convictions or
    have tried to draw parallels with them. As other authorities like
Horan
have pointed out, the circumstances of the cases of established wrongful
    convictions are multi-faceted and complex, much different than those at work in
    the case at hand.

[246]

Fourth, instructions like those under
    review here, risk inviting jurors to take into account irrelevant
    considerations and imaginary dangers, rather than focusing on their task of
    assessing the evidence in accordance with the governing legal principles in the
    case that is theirs to decide:
Horan
, at para. 67.

[247]

Finally, like the timid juror
    instruction that implies that any juror who does not convict is timid and
    imagines doubts where none exist to avoid making a decision, repeated
    references to miscarriages of justice and wrongful convictions is a form of
    intimidation that invites acquittal, not because of an absence of sufficient
    proof of guilt, but because a verdict of guilt might be proven wrong in the
    fullness of time:
Horan
, at paras. 67-68.

The Effect of the Errors on the Jury Verdict

[248]

What remains for decision is
    whether the errors identified above, considered as a whole, had any effect or
    exerted any influence on the jurys verdict. The respondent does not suggest
    that the identified errors do not raise questions of law alone, but does say
    that, because of the inherent weaknesses in the Crowns case at trial, and the
    failure to take up the trial judges offer of a mistrial, the errors had no
    material bearing on the result.

[249]

In my view, for the reasons that
    follow, the combined effect of the trial judges errors in failing to admit the
    testimony of Chung and the derivative evidence and in the instruction based on
Schell
    and Paquette
require a new trial. I would not order a new trial only on
    the basis of the trial judges references to miscarriages of justice in the
    charge to the jury, or the order of the reviewing judge setting aside the
    authorization to intercept private communications, whether those errors are
    considered individually or in combination.

[250]

On an appeal from acquittal in
    proceedings by indictment, the Crown must establish that legal errors made by
    the trial judge, considered cumulatively, might reasonably be thought, in the
    concrete reality of the case, to have a material bearing on the verdict of
    acquittal:
R. v. Graveline
, 2006 SCC 16, [2006] 1 S.C.R. 609, at para.
    14.

[251]

Crown counsel does not have to
    persuade an appellate court that the verdict would necessarily have been
    different, but must satisfy the court that the verdict would not necessarily
    have been the same had the errors not been made:
Graveline
, at paras.
    14 and 16.

[252]

In this case, the jury had to
    decide whether the Crown had proven beyond a reasonable doubt that the
    respondent unlawfully killed the deceased in circumstances that amounted to
    second degree murder. The core issue at trial was the identity of the
    deceaseds killer. The Crown said it was the respondent and that Chungs participation
    didnt matter. The defence said it was Chung, or at least there was a
    reasonable doubt that it was the respondent. The evidence was entirely
    circumstantial.

[253]

The legal errors in this case,
    except that of the reviewing judge in setting aside the authorization, all
    related to the central issue of the identity of the deceaseds killer.

[254]

First, the ruling that excluded
    Chungs testimony and any evidence derived from it left jurors with an
    incomplete and distorted picture about Chungs alleged participation in the
    killing.

[255]

The respondent was permitted to
    adduce evidence about Chungs opportunity and motive to kill the deceased and
    of what he did and said after the killing that tended to link him to it. The
    ruling precluded the Crown from adducing evidence that tended to rebut the
    respondents assertion that Chung participated in the killing of the deceased
    or was the killer. The excluded evidence included the testimony of the very
    person whom the respondent alleged was the killer: Chung. Even if Chung were
    not permitted to testify about the respondents confession, evidence
    rebutting Chungs participation was critical to a proper evaluation of the
    legitimacy of the alternate suspect claim.

[256]

The effect of the ruling here is
    similar to the effect of the decision by the trial judge in the foundational
    case of
R. v. McMillan
. There the trial judge permitted the defence to
    adduce expert opinion evidence of the alternate suspects disposition as
    circumstantial evidence of conduct, but denied the Crown the right to adduce
    evidence that tended to show the accused had a similar, if not equivalent
    disposition. The effect of the ruling was to leave the trier of fact with an
    incomplete or distorted picture on the central issue of the identity of the
    deceaseds killer. McMillans acquittal was set aside and a new trial ordered
    on the basis that evidence of McMillans disposition had been wrongly excluded.
    It will be for the judge presiding at the new trial to rule on the
    admissibility of Chungs evidence.

[257]

The trial judge concluded that, if
    he admitted the evidence of Chung and its derivatives, an adjournment would be
    necessary to permit the completion of the ongoing investigation, disclosure,
    and the need for the defence to consider the effect, if any, of the new information
    on the conduct of the defence.  According to the trial judge, proceedings could
    not be rescheduled for about one year.

[258]

Chung testified on the
voir
    dire
to determine the admissibility of his evidence. With the then
    available and recently provided disclosure, he was cross-examined for four
    days. His evidence was not complex. He denied involvement in the killing of the
    deceased and recounted a barebones confession of the respondent. I am at a loss
    to understand why it would take months to complete any further investigation,
    provide disclosure, and assess the impact of this evidence on the defence. I am
    equally at a loss to understand why proceedings could not be recommenced in the
    largest jurisdiction in this province for a year.  All that was required was a
    brief adjournment, of weeks, not months or a year, a disclosure order, and a
    resumption of proceedings within weeks consistent with the Crowns obligation
    to ensure that the respondent was tried within a reasonable time.

[259]

Nor am I persuaded that Chungs
    evidence was so unreliable that its reception would have made no difference to
    the jurys verdict at trial. Properly instructed juries in criminal cases are
    well-equipped to assess the credibility of witnesses like Chung and to
    determine the reliability of their evidence. What a jury would make of Chungs
    evidence, along with the rest of the evidence, is for a jury to say. This jury
    never had that opportunity to consider whether they would believe some, none,
    or all of Chungs testimony and the related evidence. It simply cannot be said,
    as the respondent suggests, that, had that evidence been given, along with the
    rest of the evidence, that the jurys verdict would necessarily have been the
    same.

[260]

Second, the instruction based on
Schell

and

Paquette
confined the jurys consideration of the
    respondents liability for the killing too narrowly. The effect of the
    instruction was that, if the jury had a reasonable doubt about Chungs
    participation, the respondent was to be acquitted. A proper instruction on co-principals
    would have focussed on the respondents participation and required a finding of
    guilt upon adequate proof of it irrespective of Chungs involvement.

[261]

In the circumstances of this case,
    the trial judges offer of a mistrial, when Crown counsel objected at the end
    of his charge to his reconfiguration of the Crowns position and to his
    instruction based on
Schell

and

Paquette
, does not
    estop or otherwise bar the Crown from seeking and obtaining a new trial. The
    Crown was entitled to have its case presented to the jury in a legally correct
    way in accordance with the evidence adduced at trial. The trial judges ruling
    prevented any such adjudication. The mistrial offer was no solution when it
    was accompanied by a judicial warning that a stay of proceedings would likely
    be granted because a rescheduled trial could not be put in place for another
    year.

[262]

Third, the inappropriate and
    repeated references to the prospect of wrongful conviction and a miscarriage of
    justice resulted in an instruction that invited jurors to take into account
    irrelevant considerations and imaginary dangers in reaching their decision,
    rather than a reasoned assessment of the evidence as a whole in accordance with
    the governing legal principles. These instructions, repeated on eight separate
    occasions, amounted to a form of jury intimidation inviting acquittal, not
    because of inadequacies in the proof of guilt, but because, sometime later, a
    conviction
might
be determined to have been a miscarriage of justice.

[263]

The ruling on the
Garofoli
application, which resulted in exclusion of several intercepted private
    communications from the Crowns case, adds little to the Crowns case for a new
    trial. The bulk of the content of the excluded interceptions made its way into
    evidence through formal admissions under the
Criminal Code
. That said,
    I am unable to agree with the trial judges decision to admit one of the
    interceptions at the insistence of the respondent. The reviewing judge found
    that the interceptions were the product of constitutional infringement.
    Nothing more should have been heard of them.

CONCLUSION

[264]

As a result of the cumulative
    effect of what I consider to be legal errors in the exclusion of Chungs
    evidence and in the charge to the jury, I would allow the appeal, set aside the
    respondents acquittal, and order a new trial on the indictment.

Released:
December 24, 2012 JL

David
    Watt J.A.

I
    agree John Laskin J.A.

I
    agree K. Feldman J.A.