WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order prohibiting disclosure of a witness identity
    has been made in this proceeding pursuant to s. 486.31 of the
Criminal Code
and shall continue. This section of the
Criminal Code
provides that:

486.31
    (1) In any proceedings against an accused, the judge or justice may, on
    application of the prosecutor in respect of a witness, or on application of a
    witness, make an order directing that any information that could identify the
    witness not be disclosed in the course of the proceedings if the judge or justice
    is of the opinion that the order is in the interest of the proper
    administration of justice.

(2)
    The judge or justice may hold a hearing to determine whether the order should
    be made, and the hearing may be in private.

(3) In determining whether to make the order, the judge or justice
    shall consider

(a) the right to a fair and public hearing;

(b) the nature of the offence;

(c) whether the witness needs the order for
    their security or to protect them from intimidation or retaliation;

(d) whether the order is needed to protect the
    security of anyone known to the witness;

(e) whether the order is needed to protect the
    identity of a peace officer who has acted, is acting or will be acting in an
    undercover capacity, or of a person who has acted, is acting or will be acting
    covertly under the direction of a peace officer;

(e.1) whether the order is needed to protect the
    witness's identity if they have had, have or will have responsibilities
    relating to national security or intelligence;

(f) society's interest in encouraging the
    reporting of offences and the participation of victims and witnesses in the
    criminal justice process;

(g) the importance of the witness' testimony to
    the case;

(h) whether effective alternatives to the making
    of the proposed order are available in the circumstances;

(i) the salutary and deleterious effects of the
    proposed order; and

(j) any other factor that the judge or justice
    considers relevant.

(4) No adverse inference may be drawn from
    the fact that an order is, or is not, made under this section. S.C. 2015, c.
    20, s. 38(3).

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Morin, 2021 ONCA 307

DATE: 20210511

DOCKET: C65968

Hourigan, Zarnett and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Carson Anthony Morin

Appellant

Howard L. Krongold, for the appellant

Elise Nakelsky, for the respondent

Heard: March 29, 2021, by videoconference

On appeal from the conviction entered by
    Justice Julianne A. Parfett of the Superior Court of Justice, sitting with a
    jury, on May 12, 2017.

Hourigan J.A.:

A.

Introduction

[1]

In his appeal from his conviction for
    first-degree murder, the appellant submits that the trial judge erred in her
    jury instructions on planning and deliberation and after-the-fact conduct. The
    appellant asks this court to quash his conviction for first-degree murder and
    substitute a conviction for second-degree murder. Alternatively, he seeks a new
    trial.

[2]

These reasons explain why I would dismiss the
    appeal. In summary, a fair review of the trial judges jury instructions
    reveals no error. The trial judge correctly instructed the jury on both issues,
    including in her answers to the jurys questions. The alleged error regarding
    planning and deliberation is based on a theory of culpability that was never
    put to the jury and is directly contrary to the position advanced by the
    defence at trial. Regarding the after-the-fact conduct, the instruction was
    legally sound and appropriate in the circumstances. Accordingly, I would
    dismiss the appeal.

B.

Facts

[3]

The appellant met Alyson Tippins in mid-April
    2013. She was a small-time drug dealer, looking for a place to live. The
    appellant lived alone in a rented condominium and needed money, so he proposed
    a business arrangement. Ms. Tippins would move in with him and work as an
    exotic dancer. She testified that the appellant told her he could get her a job
    at a local strip club and help her with selling marijuana. In return, after
    paying her half of their shared expenses, she was to split her earnings with
    him.

[4]

On or around April 30, the appellant and Ms.
    Tippins had a falling out. They started to argue frequently. According to Ms.
    Tippins, the appellant became rude, belligerent, and aggressive.

[5]

After a few weeks, Ms. Tippins moved in with her
    friend, Michael Wassill. The appellant suggested continuing the business
    arrangement on different terms. Ms. Tippins agreed. However, their relationship
    deteriorated after Ms. Tippins brought up her dissatisfaction with how the
    appellant took a cut of her earnings. The appellant informed Ms. Tippins that
    bad things would happen to her if she did not follow his rules, which she
    interpreted to mean physical harm or the loss of her job.

[6]

On May 13, 2013, Ms. Tippins texted the
    appellant from work, saying that she had learned that he could not get her
    fired. The appellant responded with various text messages, including, This
    ain't a game. U wanna go down that road. We can," and "Don't start
    something you ain't prepared for." He added, U dont even know what Im capable
    of. A few hours later, the appellant texted his friend, Vanessa Hill, to say that
    Ms. Tippins was "talking mad shit about me." He said she "need
    to learn the hard way. Sorry to say. He told Ms. Hill of his plan to get back
    at Ms. Tippins. Rather than pick her up from the strip club on time, he would
    say to her that he would be late and wait until she was the last one there.
    Then he would tell her, "you plan on doing this on your own dont you? So
    walk home on your own. He concluded, [b]ut then Ill see her movements. And
    decide from there about my paper [money]. Im not taking the loss this time.

[7]

On May 14, 2013, in the early morning hours, the
    appellant and Ms. Tippins had a lengthy text exchange during which she asked
    him repeatedly if he was going to pick her up from the strip club. The
    appellant picked Ms. Tippins up about 30 minutes later and drove her to Mr.
    Wassills house. Ms. Tippins said there was a lot of yelling and screaming
    during the drive, as the appellant kept saying that he did not have another way
    to make a living and she did not want to share her earnings with him anymore.
    The appellant took some of her money and said he would be there to pick her up later
    that day.

[8]

In the afternoon, Ms. Tippins texted her
    friends, asking them to gather at Mr. Wassill's home to confront the appellant
    when he arrived to pick her up for her shift. Meanwhile, Ms. Hill texted the
    appellant, saying she was deleting all her text messages with Ms. Tippins, as
    the appellant had told her to stop talking with Ms. Tippins, and to block and
    "delete" her from Facebook.

[9]

That same day, just before 6:00 p.m., Ms.
    Tippins texted the appellant to see if he would pick her up for work, and when
    he replied that he was sending a driver, she said she would arrange a ride with
    her friend, Warren Meredith, instead. The appellant got upset and texted that
    he would go to collect his "paper" (money) when she finished work,
    "[a]n we done." Ms. Tippins said not to pick her up, and the
    appellant replied, "So u gonna run away wit my paper now? Hahahahhahaha ...
    Ok. We'll see how that works out for u. >:D. About two minutes later, the
    appellant texted his friend, Michelle Thompson, asking for a drive later in the
    night. He made clear to her that he was upset with Ms. Tippins and planned to
    confront her about getting his money back. Around 6:20 p.m., Mr. Wassill phoned
    the appellant. Ms. Tippins said that Mr. Wassill told the appellant to not
    contact her or pick her up from work, but added that he could speak to her the
    next day.

[10]

On May 15, 2013, just after midnight, Ms.
    Thompson arrived at the appellants condominium. The appellant was frustrated
    that he could not collect his money from Ms. Tippins. He told Ms. Thompson he
    wanted to stake out Mr. Wassill's home. They drove to Mr. Wassill's street and
    parked a few doors down from his house. The appellant brought an X-Acto knife
    with him, which Ms. Thompson said the appellant used to slash the tire of Mr.
    Meredith's car parked in Mr. Wassill's driveway. When he approached the house,
    the appellant observed that there were many people inside.

[11]

Later the same day, Ms. Tippins awoke around
    12:15 p.m. and decided not to go to work. She invited her marijuana dealer,
    Andrew Lapensee, over to Mr. Wassills house. The three of them were speaking
    in the foyer when she saw the appellant through the window.

[12]

The appellant testified that he arrived at Mr.
    Wassills home shortly after 1:00 p.m. wearing latex gloves and armed with an
    X-Acto knife. He knocked on the window and tried to get Ms. Tippins to come to
    the door. Mr. Wassill answered instead. The appellant asked to see Ms. Tippins
    while he stood on the doorstep, but Mr. Wassill told him that she did not want
    to speak with him and to leave.

[13]

The appellant and Mr. Wassill ended up
    wrestling. At one point, the appellant slashed Mr. Wassills throat, and then
    quickly fled. Mr. Wassill suffered a penetrating incised wound to the anterior
    (front) neck caused by a single continuous movement of the weapon from right to
    left. He received emergency medical treatment but died from his injuries about a
    week later.

[14]

The three witnesses to the attack were Ms.
    Tippins, Mr. Lapensee, and the appellant. They gave differing accounts.
    According to Ms. Tippins and Mr. Lapensee, the appellant put his hands on Mr.
    Wassill first and, after slashing his throat, started to move further into the
    house towards where Ms. Tippins was before seeing Mr. Lapensee and leaving the
    scene. On the appellant's account, he had only planned to speak to Ms. Tippins,
    get his money, and leave. According to the appellant, during his conversation
    with Mr. Wassill, the victim lifted his right arm up quickly. The appellant testified
    that he interpreted this movement as an attempt to push him and reacted
    instinctively by pushing Mr. Wassill instead. He stated that the momentum
    carried him into the foyer of Mr. Wassills house, where the two of them
    engaged in a struggle. The appellant said that at one point, Mr. Wassill
    grabbed him from behind in a bear hug, and that he believed he was going to
    be hurt, so he grabbed his knife from the pouch of the hoodie. The appellant
    insisted that he wanted to show the knife to get Mr. Wassill to back off. However,
    he claimed that when he twisted and swung his hand around, he ended up accidently
    cutting Mr. Wassill across the throat, and that he immediately left the house
    in a panic. The appellant explained that he carried the X-Acto knife for
    protection and wore blue latex gloves because they gave him confidence. He also
    said that he sporadically worked in construction, and that he was required to
    bring his own latex gloves and X-Acto knives for tasks like laying flooring.

[15]

With respect to how long the incident took, Ms.
    Tippins believed that everything happened between 20-30 seconds. Mr. Lapensee
    testified that the entire incident lasted 30-45 seconds, with the appellant
    being inside Mr. Wassils home and grappling with him for approximately 5-15
    seconds.

[16]

As the appellant drove away from Mr. Wassill's
    home, he threw the knife and gloves out the window. He went to Ms. Hill's
    apartment and met her in the parking lot outside her building. Ms. Hill said
    the appellant seemed like a "wreck." The appellant gave Ms. Hill the
    clothes he had been wearing (he had already changed into a new set of clothes).
    The appellant refused to tell her what happened and then left.

[17]

A few minutes later, the appellant texted Ms.
    Hill, asking if he could return as he needed to shower. The appellant also
    texted, "If anyone asks I was with u since 12. Ms. Hill said she could
    not be involved. The appellant replied, "I was never there then lol."
    He returned to Ms. Hill's apartment, and she cleaned his face with baby wipes
    and checked his upper body for more blood.

[18]

The appellant testified that after he left Ms.
    Hills home, he learned the police were already at his condominium. The
    appellant decided that he would put things in motion, so [he] could turn
    [himself] in. He told Ms. Thompson that he would give her his car and Ms. Hill
    his money. He also asked Ms. Hill to delete photos of his car on Facebook. The
    appellant eventually called police and was arrested in the afternoon.

[19]

At trial, the Crown's theory was that spurned
    and embarrassed by Ms. Tippins, the appellant planned and deliberated to murder
    her and Mr. Wassill too, if he got in the way. The defences theory was that
    the appellant did not plan to kill anyone, that the attack on Mr. Wassill was
    an accident, and that his erratic after-the-fact conduct showed his lack of
    intent. The defence, however, admitted that the appellant was guilty of
    manslaughter. During their deliberations, the jury asked several questions
    about planning and deliberation before eventually finding the appellant guilty
    of first-degree murder.

C.

Analysis

[20]

There are two issues on the appeal:

1.

Did the trial judge err in her response to the jurys questions on
    planning and deliberation?

2.

Did the trial judge misdirect the jury to consider the appellants after-the-fact
    conduct as evidence of planning and deliberation?

[21]

As I will explain, I would answer both questions
    in the negative and, on this basis, would dismiss the appeal.

(1)

Planning and Deliberation

[22]

The trial judge instructed the jury that to
    prove planning and deliberation, the Crown must show beyond a reasonable doubt
    that the appellant planned and thought out the killing of Ms. Tippins and/or Mr.
    Wassill if he attempted to intervene. The appellant takes no issue with these
    instructions, which he concedes were accurate and tracked the standard
    instructions found in Watt J.A.s
Manual of Criminal Jury Instructions
,
    2nd ed. (Toronto: Carswell, 2015).

[23]

Where the appellant objects to the trial judges
    instructions is her answer to a series of questions posed by the jury during
    their second day of deliberation. These questions, which focused on planning
    and deliberation, were as follows:

[313-315] Can a plan + implementation occur
    during the event (15 to 30 seconds)

Carry out immediately > impulsive?

Does planned and deliberate have to be planned
    before the event or can it be planned as the event unfolds?

313 says, one person may prepare a plan and
    carry it out immediately. Does this mean a plan can be immediate, or must be
    planned in advance?

p. 57  313 needs to be clarified. Can a plan +
    implementation occur immediately or is it more important that time is spent to
    plan?

Could deliberate possession of a weapon rule
    out that a murder was impulsive?

[24]

Before answering the questions, the trial judge
    heard submissions from counsel regarding the appropriate response to be given
    by the court. These submissions take on special significance on the appeal
    because they reflect the understanding of defence counsel regarding the meaning
    of the questions. This understanding is inconsistent with the position now
    asserted by the appellant.

[25]

Immediately after the trial judge read the
    questions aloud to the court, the following exchange occurred between one of
    the defence counsel and the trial judge:

MR. RUSSOMANO: It strikes me, just upon
    reflection, that this really is two questions. That the  all of the questions,
    except for the very last one deal with, can a plan and its implementation
    happen at the exact same time.

THE COURT: Or very close in time.

MR. RUSSOMANO: Yes, although I think its the
    former rather than the latter, and I think the answer is in 314 of your charge,
    that the plan has to be - it has been previously formulated or designed. Now,
    it can be right before, but it can't be during. It has to be previously.

[26]

The trial judge then allowed counsel time over
    the lunch break to consider their positions and make submissions. On their
    return, the position of counsel for the defence did not change. He agreed with
    the trial judge (1) that planning and deliberation could happen seconds before
    a murder; (2) that the question referencing 15 to 30 seconds related to the
    struggle between the appellant and Mr. Wassill; and (3) that the plan could not
    have been developed during the struggle. In the course of these submissions,
    defence counsel and the trial judge had an exchange about whether the planning
    and deliberation could occur as the appellant walked up the stairs to Mr.
    Wassills doorstep. Defence counsel stated that this would be theoretically
    possible since planning and deliberation has to occur before the murder, but pondered
    whether there was enough time in such a brief interval.

[27]

Defence counsel also had an additional concern.
    He believed that the jury's questions suggested that they may be conflating
    planning and deliberation, and requested an instruction to clarify these as
    distinct concepts.

[28]

The Crown submitted that there was no reason to
    instruct the jury about the fact that planning and deliberation were separate
    concepts. He reminded the trial judge that she had made this distinction clear
    at seven different points in her charge. Regarding timing, the Crown took the
    position that the planning and deliberation could have occurred during the
    course of the verbal exchange with the victim on the doorstep. He requested an
    instruction wherein this point was explicitly made.

[29]

The trial judge rejected the requested
    instruction by defence counsel to clarify the distinction between planning and
    deliberation. She also dismissed the Crown's suggestion that she instruct the
    jury regarding the fact that the planning and deliberation could occur at any
    time before the throat slash, up to and including the verbal exchange on the
    doorstep, and the spilling into the foyer. The trial judge further made it
    clear that in her answer she would use the term murder instead of the more
    ambiguous term "event."

[30]

The pertinent portions of the trial judges
    answer provided to the jury are as follows:

You have asked the following questions:
    Paragraphs 313 to 315  can a plan and implementation occur during the event
    (15 to 30 seconds) carry out immediately > impulsive? Does the plan  does
    planned and deliberate have to be planned before the event, or can it be
    planned as the event unfolds?

Paragraph 313 says: "One person may
    prepare a plan and carry it out immediately." Does this mean a plan can be
    immediate, or must be planned in advance? Paragraph 313 needs to be clarified.
    Can a plan and implementation occur immediately, or is it more important than
    time is spent to plan? Could the deliberate possession of a weapon rule out
    that a murder was impulsive?

In the first four questions, it appears youre
    asking about the timing in relation to the formulation of the plan, and the
    deliberation. And I refer you again, to paragraphs 311 and  to  311 to 316.
    In addition, I add the following: The key with respect to the planning and
    deliberation is that both the planning and deliberation have to be complete
    before the murder occurs. Although the length of time between the completion of
    the planning and deliberation, and the implementation could be very short
    almost immediate.

As an aspect of timing, part of the planning
    and deliberation of the murder could be determined in advance, with part not
    being determined until immediately before carrying out the murder, so long as
    the entire plan and deliberation is complete before the murder.

The last question is: Could the deliberate
    possession of a weapon rule out that a murder was impulsive? It depends. The
    possession of a weapon is a piece of evidence to consider along with all the
    other evidence in determining whether the murder was planned and deliberate. So
    I hope that helps members of the jury. If you have further questions, dont
    hesitate to ask.

[31]

The jury asked no further questions of the trial
    judge. They convicted the appellant of first-degree murder the next day.

[32]

The appellant argues that the jury had to
    conclude that the appellant planned and deliberated committing murder before he
    arrived at Mr. Wassill's home to convict on first-degree murder. If the
    appellant arrived without a plan to kill, counsel for the appellant submits
    that there was no evidence or realistic opportunity for the attack on Mr.
    Wassill to be planned and deliberate. According to the appellant, the questions
    show that the jury was struggling with whether the appellant might have only
    formulated a plan to kill while standing on the doorstep of Mr. Wassill's
    residence, during his argument with the victim.

[33]

The appellant also submits that the jurys
    questions demonstrate that they were struggling to understand the law of
    planning and deliberation, and how to apply the law to the evidence. Paragraph
    313 of the written charge said: One person may prepare a plan and carry it out
    immediately. This was meant to capture the classic instruction emphasizing
    that formulating a plan takes time, so a jury should focus on the time involved
    in developing a plan, and not how long a person waits to implement it. But the
    appellant says that the jury read it to mean that the appellant could
    immediately prepare a plan and carry it out.

[34]

The crux of the appellants argument is that the
    questions show how the jury misunderstood what planning requires, and what the
    relationship is between planning and deliberation. The appellant submits that
    although a plan, once formulated, can be carried out immediately, a plan cannot
    be formulated immediately. Similarly, deliberation cannot happen immediately.

[35]

According to the appellant, the trial judge
    erred in not realizing that there was no air of reality to the theory that the
    appellant planned and deliberated murdering Mr. Wassill while he was standing
    on the doorstep and arguing with the victim. He submits that the jury needed to
    be told there was no evidentiary basis to convict the appellant of first-degree
    murder on the scenario their questions implied. The jury should also have been
    told that while a plan might be carried out immediately after it is formulated,
    formulating a plan takes time. Instead, the recharge focused on how quickly a
    plan can be implemented, effectively endorsing the jurys misconceived theory
    of liability. The appellant submits that the failure to correct the jury's
    misapprehensions about planning and deliberation was not minor or incapable of
    impacting the verdict. Instead, this failure went to the critical issue between
    a finding of first- or second-degree murder.

[36]

The law regarding answers to jury questions is
    well-settled and was not the subject of debate on this appeal. Jury questions
    are recognized in the jurisprudence as being particularly significant because
    they provide insight into the jury's problems with a case. For that reason,
    jury questions require a full, careful and correct response:
R. v. W. (D.)
,
    [1991] 1 S.C.R. 742, at pp. 759-760. The jury is not only entitled to a
    responsive answer to its question, but the trial judge should take care not to
    discourage further questions:
R. v. Layton
, 2009 SCC 36, [2009] 2
    S.C.R. 540, at para. 33.

[37]

As noted by Mainella J.A. of the Court of Appeal
    of Manitoba in
R. v. Willis (TAW)
, 2016 MBCA 113, 344 C.C.C. (3d) 443,
    leave to appeal refused, [2017] S.C.C.A. No. 45, this seemingly simple task is
    often challenging for a trial judge because there is no set of standard answers
    that can be applied. Ultimately, it is a judicial function that relies
    entirely on the proper exercise of discretion tailored to the applicable
    circumstances:
Willis
,
at para. 217. This court made a similar comment in
R. v. Mohamad
, 2018
    ONCA 966, 369 C.C.C. (3d) 211, leave to appeal refused, [2019] S.C.C.A. No.
    162, wherein Watt J.A. stated, at para. 279: [H]ow the response is given is
    left largely to the discretion of the presiding judge. And that discretion,
    uncontaminated by errors of law or misapprehensions of fact and falling within
    a range of reasonable alternatives is entitled to deference on appellate
    review.

[38]

With these comments in mind, I consider the
    adequacy of the trial judges answer. There can be no doubt that the answer was
    correct in law. By that I mean, that the trial judges instruction that
    planning and deliberation had to occur before the murder was without error. The
    appellants counsel is not arguing otherwise on this appeal. His point is that
    the questions revealed a concern held by the jury about whether the appellant
    had adequate time to plan and deliberate.

[39]

The appellant's argument on this issue is
    premised on the assertion that what the jury was concerned about is whether he
    could plan and deliberate murder as he stood on Mr. Wassills doorstep and
    argued with the victim. This doorstep theory was mooted in exchanges between
    counsel and the trial judge. However, it was never put to the jury by either
    party or the trial judge. Recall that the Crown requested a specific instruction
    that the planning and deliberation could occur on the doorstep. The trial judge
    rejected that request.

[40]

The interpretation of the questions asserted on
    appeal is contrary to the position taken by defence counsel before the trial
    judge. The trial judge explicitly raised with defence counsel the doorstep
    theory, but counsel did not take the position that the jury questions were
    aimed at that issue. His interpretation was that the jury was asking about timing,
    i.e. whether the planning and deliberation, and the implementation, can happen
    simultaneously.

[41]

The trial judge accepted that characterization
    of the questions and tailored her answer accordingly. That interpretation was
    sensible in the circumstances. Nowhere in the multiple questions was there an
    explicit reference to planning and deliberation taking place on the doorstep as
    the appellant argued and then struggled with Mr. Wassill.

In her
    response, the trial judge was careful to refer to the "murder," and
    not the "event," to emphasize that the planning and deliberation had
    to happen before the murder. In doing so, she mitigated against the risk that
    the jury might be asking a question premised on the doorstep theory. It was
    plain from her answer that she was referring to whether the murder, and the planning
    and deliberation, could occur at the same time.

[42]

The trial judge also invited the jury to ask
    further questions. This is a significant factor in this case because the jury
    had asked several questions and clearly was not reticent about seeking
    clarification when it was struggling with an issue. I have no difficulty
    concluding that if this jury meant by their questions that they needed guidance
    about whether the planning and deliberation could occur on the doorstep, they
    would have had no hesitation in seeking further clarification.

[43]

Ultimately this issue comes down to whether the
    trial judge correctly answered the questions having regard to her discretion to
    tailor the answer in the circumstances. In this case, where there was no
    explicit reference to the doorstep theory in the questions, and it had not been
    put to the jury, I can see no error in her response. The trial judge properly
    answered the questions, tailored her answer to clarify that she was referring
    to the actual murder and not what happened on the doorstep, and encouraged the
    jury to come back for further guidance. Accordingly, I would not give effect to
    this ground of appeal.

(2)

After-the-fact Conduct

[44]

The appellant concedes that since he asserted
    the defence that he struck Mr. Wassill accidentally, his after-the-fact conduct
    was admissible to rebut his defence. He also argues that the after the-fact
    conduct was relevant to support his contention that he did not have murderous
    intent.

[45]

The jury charge highlighted several examples of
    after-the-fact conduct, including:

·

The appellant went to Ms. Hill's home after the
    incident and asked for a garbage bag in which he deposited his clothing.

·

The appellant asked Ms. Hill to say he had been
    with her since noon.

·

The appellant returned to Ms. Hills home, and
    Ms. Hill helped clean blood off the appellants face.

·

The second time he went to Ms. Hill's home, the
    appellant parked his car some distance away. He later arranged for Ms. Thompson
    to pick the car up.

·

At the request of the appellant, Ms. Hill went
    on his Facebook page and deleted all his photos with his car.

·

When the appellant went to Ms. Hill's a third
    time, he gave her his keys and told her he was going away for a while, and she
    could use his condominium.

·

Ms. Hill and Ms. Thompson tried to go to the
    appellants condominium.

·

Ms. Hill gave Ms. Thompson the bag containing
    the appellants clothes.

·

Ms. Thompson later disposed of the bag in a
    garbage bin at a gas station some considerable distance away.

[46]

The trial judge also reviewed in the jury charge
    the appellant's explanations for his conduct. For example, she reminded the
    jury of the appellants explanation that he threw the bloody gloves and knife
    out the window because he was frightened and panicked. She told them that the
    appellant testified about how he changed out of his clothes not because they
    were blood-stained, but because they were sweaty and made him feel disgusting. The
    trial judge reviewed with the jury the appellants explanation that he hid his
    car on a side street and asked Ms. Hill to remove photos of his car from
    Facebook because he feared the BMW gang and wanted to avoid a criminal charge
    for driving without a license. She also reminded the jury of the appellants
    evidence that he tried to find the Ottawa Police Service's phone number to turn
    himself in.

[47]

The trial judge further cautioned the jury on
    the proper uses of the evidence and asked them to consider alternative
    explanations. She told the jury that to use the after-the-fact conduct to
    support a finding of guilt, they must reject any other explanation for the
    conduct.

[48]

In his factum, the appellant asserts the trial
    judge concluded during the pre-charge conference that the after-the-fact
    conduct could not be used to support the Crowns theory that the murder was a
    result of planning and deliberation. Despite this conclusion, the jury charge
    explicitly invited the jury to use the after-the-fact conduct as evidence to "assist
    in determining whether there was or was not, planning and deliberation." The
    appellant argues that the trial judge ought to have provided a limiting
    instruction advising the jury that they could not use the after-the-fact
    conduct to support an inference of planning and deliberation.

[49]

I would not give effect to this ground of
    appeal. To the extent that is premised on the notion that after-the-fact
    conduct cannot serve as evidence of planning and deliberation, that is an
    erroneous view of the law. There is no legal impediment in using the
    after-the-fact conduct to determine intent or distinguish between different
    levels of culpability. As Doherty J.A. stated in
R. v. MacKinnon
(1999), 43 O.R. (3d) 378 (C.A.):

Evidence of after-the-fact conduct is a type
    of circumstantial evidence. Its potential probative value will depend upon the
    nature of the evidence, the issues in the case and the positions of the
    parties. Often, evidence of after-the-fact conduct will be probative of the
    accused's participation in the crime alleged, but will have no probative value
    in determining the level of the accused's culpability. Sometimes, however, as a
    matter of common sense and human experience, the evidence will be capable of
    supporting an inference that an accused had a particular state of mind:
R.
    v. White
, [1998] 2 S.C.R. 72 at pp. 88-92, 125 C.C.C. (3d) 385 at pp.
    400-03.

The
    appellants' conduct as described by Ransome, from the time they fled the club
    until they disposed of evidence in the dumpster could, when viewed in its
    entirety, support the inference that they had done exactly what they had
    planned to do, that is, enter the club, commit a robbery and shoot Mr. Chow.
    This inference would lend considerable support to the Crown's claim that the
    murder was planned and deliberate. As the evidence had some probative value on
    the question of whether the appellants had engaged in a planned and deliberate
    murder as opposed to a robbery or some other illegal activity which had gone
    awry, the trial judge could not have instructed the jury that the evidence had
    no value in determining the appellants' level of culpability. The alleged
    non-direction does not constitute misdirection on the evidence adduced in this
    case.

See also:
R. v. Calnen
, 2019
    SCC 6, [2019] 1 S.C.R. 30, at para. 119,
per
Martin J. (dissenting,
    but not on this point);
R. v. Café
, 2019 ONCA 775, 381 C.C.C. (3d) 98,
    at paras. 55-58.

[50]

I agree with the submission of the appellant
    that the after-the-fact evidence referred to by the trial judge was relevant to
    the issue of his intent. It was also relevant to support one of the appellants
    principal arguments at trial, specifically that his after-the-fact conduct demonstrated
    that the killing had not been planned. The defence relied on the fact that the
    appellant did not make prior arrangements to settle his affairs before the
    killing, and that his actions seemed frantic, to negate the Crowns submissions
    on planning and deliberation.

[51]

The question on appeal is whether the
    after-the-fact conduct evidence was admissible to support the Crowns position
    that the murder was a planned and deliberate killing. It is necessary at this
    point to review the argument made in the appellants factum that the trial
    judge agreed the jury could not use the after-the-fact conduct to support the
    Crowns position regarding planning and deliberation, but then inexplicably
    instructed them to do so. This description of what occurred during the
    pre-charge conference is inaccurate.

[52]

It is true that the trial judge did state during
    the beginning of her colloquy with the Crown that after-the-fact conduct could
    not help the Crown prove planning and deliberation. The Crown disagreed and
    made submissions on the point. He relied on the passage from
MacKinnon
excerpted above to argue that after-the-fact conduct can be relevant to the
    issue of planning and deliberation.

[53]

The trial judge acceded to this argument. She
    stated repeatedly that the after-the-fact conduct could be used both to prove
    or disprove planning and deliberation, and advised the parties that she would
    include that instruction in her charge. The trial judge observed, quite
    correctly, that how the evidence could be used was a matter for the jury to
    decide.

[54]

Defence counsel did not object to the proposed
    instruction. During the pre-charge conference, she explicitly agreed with the
    suggestion made by the trial judge that the jury could use after-the-fact
    conduct to determine whether there was any planning and deliberation. Defence
    counsel also did not object when the trial judge suggested a slightly modified
    instruction at the insistence of the Crown to read it may assist whether there
    was or was not any planning and deliberation.

[55]

The Crowns position was that the evidence was
    relevant to rebut the appellants claim that he accidentally slashed Mr.
    Wassills throat, and to support an inference of planning and deliberation.
    According to the Crown, after killing Mr. Wassill, the appellant beelined
    toward Ms. Tippins instead of hesitating (as one would expect in an accidental
    killing). The Crown submits that the appellants conduct after leaving the
    house was consistent with the follow-through and execution of a previously
    devised plan adjusted to deal with an unanticipated eyewitness.

[56]

The trial judge had a choice of permitting the
    after-the-fact conduct to be used to support the Crowns theory regarding
    planning and deliberation, or cautioning the jury that they could not use it
    for that purpose. In my view, the trial judge did not err in instructing the
    jury that they could rely on this evidence to support the Crowns theory
    regarding planning and deliberation. The evidence was capable of supporting the
    inference that the Crown was inviting the jury to draw.

[57]

The jury would have understood that both the
    Crown and defence relied on the after-the-fact conduct to support their
    respective theories of the case. Further, the jury was properly instructed on
    the limited use of that conduct, including that to use it as evidence of guilt,
    they had to reject any other explanation for the conduct. Therefore, I would not
    give effect to this ground of appeal.

D.

Disposition

[58]

For the foregoing reasons, I would dismiss the
    appeal.

Released: May 11, 2021 C.W.H.

C.W. Hourigan J.A.

I agree. B. Zarnett J.A.

I agree. S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Muddei, 2021 ONCA 200

DATE: 20210401

DOCKET: C67481, C67486, C67512 & C67848

Doherty, Zarnett and Coroza JJ.A.

DOCKET: C67481

BETWEEN

Her Majesty the Queen

Appellant

and

Said Muddei

Respondent

DOCKET: C67486

AND BETWEEN

Her Majesty the Queen

Appellant

and

Faysal Bashir

Respondent

DOCKET: C67512

AND BETWEEN

Her Majesty the Queen

Respondent

and

Mathieu Vaillant

Appellant

DOCKET: C67848

AND BETWEEN

Her Majesty the Queen

Respondent

and

Patrick Thibault

Appellant

Jeffrey Pearson and Deborah Krick, for the appellant Her
    Majesty the Queen (C67481 & C67486)

Howard L. Krongold, for the appellant Mathieu Vaillant

James Foord and Brandon Crawford, for the appellant Patrick
    Thibault

Diane Condo, for the respondent Said Muddei

Solomon Friedman and Fady Mansour, for the respondent
    Faysal Bashir

Jeremy Streeter and Alexia Bystrzycki, for the respondent
    Her Majesty the Queen (C67512 & C67848)

Heard: January 7, 2021 by video conference

On appeal from the acquittals entered by Justice Sylvia
    Corthorn of the Superior Court of Justice on September 3, 2019 (C67481 &
    C67486).

On appeal from the convictions entered by Justice Trevor
    A. Brown of the Ontario Court of Justice on February 19, 2019 (C67512 &
    C67848).

Doherty J.A.:

I

overview

[1]

These two appeals were heard together. In
R. v. Thibault and
    Vaillant
, the accused appeal from their convictions on drug-related
    charges.
[1]
In
R. v. Bashir and Muddei
, the provincial Crown appeals from
    acquittals on charges arising out of an alleged home invasion. The two sets of
    charges are unrelated.

[2]

Both prosecutions turned on the admissibility of communications
    intercepted pursuant to the same authorization granted under Part VI of the
Criminal
    Code
in December 2016
.
[2]
In both cases, the accused sought the exclusion of the evidence obtained under
    the authority of the authorization. They maintained the authorization was
    improperly granted under the relevant provisions of the
Criminal Code
,
and the interceptions of their private
    communications violated their rights under s. 8 of the
Charter
. The
    accused argued the evidence should be excluded under s. 24(2) of the
Charter
.

[3]

The argument failed in
R. v. Thibault and Vaillant
. The trial
    judge found the authorization was properly granted, there was no s. 8 violation,
    and no reason to exclude the evidence. After the trial judge ruled the interceptions
    admissible, Thibault and Vaillant did not challenge the Crowns case. The trial
    judge entered convictions. Thibault and Vaillant appeal from those convictions.

[4]

The argument succeeded in
R. v. Bashir and Muddei
.
The
    trial judge found the authorization was not properly granted, rendering the interceptions
    a violation of s. 8 of the
Charter
. She further held the evidence
    should be excluded under s. 24(2):
R. v. Bashir and Muddei
, 2019 ONSC 4082
. Without that evidence,
    the Crown had no case and acquittals were entered. The Crown appeals from those
    acquittals.

[5]

I agree with counsel that both trial judges cannot be correct. While
    different judges asked to grant an authorization on the same evidence might
    reasonably and properly come to different conclusions as to whether to grant
    the authorization, the decision of the reviewing judge as to whether the
    authorization could have been granted is a question of law, which admits of
    only one correct answer.

[6]

Both trial judges delivered thoughtful reasons. They agreed the
    authorization was presumed valid and that, in reviewing the authorization, they
    must determine, not whether they would have granted the authorization, but
    rather whether the affidavit in support of the authorization provided an evidentiary
    basis upon which the issuing judge could have granted the authorization. The
    trial judges also agreed on the legal principles governing the interpretation
    of s. 186(1) of the
Criminal Code
, the provision setting out the
    criteria for granting an authorization.

[7]

Both trial judges acknowledged the reasonable grounds requirement
    implicit in s. 186(1)(a) had to be assessed in the context of the specific
    investigation. In this investigation, the police sought an authorization in
    respect of a murder that had occurred 7 ½ years earlier. The investigation had
    gone cold years before the police decided to seek an authorization. They
    proposed to use various investigative techniques to stimulate communication by
    and among the targets of the authorization, believing those communications
    would provide information relevant to the murder investigation.

[8]

Brown J., the trial judge in
Thibault and Vaillant
, after a review
    of the affidavit sworn in support of the authorization application, concluded,
    at para. 63:

I conclude therefore that the issuing judge could reasonably
    have inferred on the information before him that the investigative plan
    proposed, including the use of the investigative techniques outlined, would
    afford evidence of the offence.
[3]

[9]

Corthorn J., the trial judge in
Bashir and Muddei
, after a
    review of the same affidavit, concluded, at paras. 65-66:

In summary, there is no discrete evidence, no basis for a
    reasonable inference, nor any basis for judicial notice to be taken in support
    of a conclusion that the targets would, if communicating with another,
    communicate in a way that would afford evidence of the homicide.

Similarly, there is no discrete evidence, no basis for a
    reasonable inference, nor any basis for judicial notice to be taken in support
    of a conclusion that the targets would, in communication with other unknown
    persons, communicate in a way that will afford evidence of the homicide

[10]

For the
    reasons that follow, I agree with the conclusion of Corthorn J. It is certainly
    possible a person implicated in a serious crime committed years earlier may, if
    stimulated by police activity, communicate with others who were involved in, or
    had knowledge of, that crime. However, that possibility alone cannot be enough
    to warrant the granting of an authorization to intercept private communications.
    Were the possibility the police could stimulate communications about the
    offence enough, individuals who the police reasonably believed to have been
    involved in a crime years earlier, or perhaps to have been in communication
    with others involved in a crime, would remain subject to seriously intrusive state
    invasions of their privacy, as long as the investigation of the crime remained
    open and the police could think of something that might possibly stimulate communications
    relevant to the crime.

II

the murder investigation

[11]

Mohamed
    Ali was shot and killed in a busy downtown Ottawa bar on May 7, 2009. Wayne
    Morgan, an employee of the bar, was shot in the arm.

[12]

The police
    investigation of the murder is reviewed in detail in the affidavit sworn in
    support of the authorization application. According to the affidavit, a fight broke
    out in the bar between two groups of men. Apparently, one man in each group had
    been involved with the same woman.  After a physical altercation, shots rang
    out. Two guns were used, but one misfired. Mr. Ali, who was associated with one
    of the two groups, may or may not have been an intended target. Mr. Morgan was
    hit by a stray bullet.

[13]

Information
    gathered during the investigation indicated that Adnan Fazeli, Faysal Bashir,
    Rafat Mohamed, Saeed Sheikhdoon, and Christian Thibault were in the bar shortly
    before the shooting. The investigation pointed to Mr. Bashir as the likely
    shooter and perhaps the leader of that group. Other information suggested Rafat
    Mohamed was the shooter. I will sometimes refer to these five individuals collectively
    as the group. Mr. Ali was with the other group involved in the confrontation at
    the bar.

[14]

The
    police interviewed and re-interviewed many witnesses, gathered forensic
    evidence, and employed a variety of other investigative techniques in the weeks
    and months following the murder. These techniques included an undercover
    operation, which proved unsuccessful, additional interviews, surveillance,
    obtaining of production orders and search warrants, inquiries of various
    confidential informants, and resort to Crime Stoppers tips.

[15]

The
    shooting appeared to be gang related. The investigation was hampered by the reluctance
    of many individuals, including persons in the bar, to speak with the police
    about the incident.

[16]

The
    police interviewed Ashley Windebank in January 2010. Her boyfriend knew Mr. Bashir
    and other persons in his group. Ms. Windebank told the police she did not see
    the altercation in the bar but was privy to a conversation later that night involving
    the group. In the conversation, Adnan Fazeli said he had been struck in the
    face during the fight in the bar. He pulled his gun out, intending to shoot his
    assailant, but the gun misfired. Mr. Bashir said when Fazelis gun misfired, he
    shot Mr. Ali. According to Mr. Bashir, Mr. Ali got what he deserved. Forensic
    evidence confirmed that two guns were used in the shooting, and one had
    misfired.

[17]

Ms.
    Windebank told the police the gun used by Mr. Bashir belonged to her boyfriend
    who was in custody. She was asked to pick up the gun at the home of Mr.
    Bashirs mother. When Ms. Windebank saw the gun, it had blood on it so she
    refused to take it. The affidavit does not indicate when Ms. Windebank was
    asked to pick up the gun, or when she saw the gun.

[18]

The
    police re-interviewed Ms. Windebank in May 2014. She said the conversation she
    had described in her first interview took place at the apartment of Ahmed
    Mahfud. Ms. Windebank also told the police the murder weapon, a 9-millimetre
    handgun, had been buried in the forest near Vanier. The affidavit does not
    indicate who told Ms. Windebank the gun had been buried, or when she got that
    information.

[19]

The
    police interviewed Hendrick Alvaro-Raul in June 2012. He told them about a
    conversation he had with Rafat Mohamed in September 2011. According to Mr.
    Alvaro-Raul, Mr. Mohamed told him the fight started when Mr. Fazeli and a
    person from the other group were arguing about a woman. Mr. Ali attempted to
    stop the fight. Mr. Bashir told Mr. Mohamed to let it go if the fight got out
    of control. Mr. Mohamed said he then took out his gun and shot Mr. Ali. At some
    unspecified time, Mr. Mohamed promised to look after Mr. Alvaro-Raul if he did
    not tell anybody about Mr. Mohamed committing the murder.

[20]

Information
    from confidential informants confirmed, that at the time of the murder, Fazeli,
    Bashir, Rafat Mohamed and Thibault were a crew and regularly associated with
    each other. One informant (informant #4) told the police in September 2012 that
    the gun used in the murder had been buried by Rafat Mohamed. The informant did
    not indicate his source of the information about the gun, or when he received
    that information.

III

the authorization

[21]

By
    November 2016, the investigation into the murder had been cold for years. The
    police decided to reinvigorate their murder investigation by applying for an
    authorization to intercept the private communications of several people. The
    affidavit sworn in support of the authorization offers no specific reason for
    seeking an authorization some 7 ½ years after the murder, although the affiant
    indicated Mr. Bashir, who had been in jail since 2010, had been released and returned
    to Ottawa some time before August 1, 2016. The named targets of the
    authorization, with the exception of Mr. Sheikhdoon, lived in Ottawa.

[22]

The
    application sought to intercept communications in respect of Mr. Alis murder
    and related ancillary crimes. It identified seven named targets. These included
    the five persons who were believed to have been part of the group that included
    the shooter. They were:

·

Adnan Fazeli;

·

Faysal Bashir;

·

Rafat Mohamed;

·

Saeed Sheikhdoon; and

·

Christian Thibault.

[23]

In
    addition to the five persons believed to have been involved in the shooting,
    the application sought to intercept the private communications of Ahmad Mahfud
    and Ashley Windebank.
[4]
The group went to Mr. Mahfuds apartment after the shooting. Ms. Windebank was
    at the apartment with the group. As outlined above (paras. 16-18), Ms. Windebank
    had passed information about the murder on to the police in 2010 and in 2014.

[24]

The
    application sought to intercept the verbal and non-verbal communications of the
    seven targets at their residences. It contained basket clauses with respect
    to unknown persons and other places. In addition, the application sought permission
    to employ a wide variety of other investigative techniques.

[25]

The
    affidavit provides a detailed account of the police investigation of the murder.
    That account makes it clear the police had gathered very little information
    about the homicide for many years prior to bringing the application for the
    authorization. The last pertinent information appears to have come from Ms.
    Windebank in June 2014. Prior to that contact, the police had not received any information
    since the summer or early fall of 2012.
[5]

[26]

The
    affidavit also describes the association among the seven targets at the time of
    the murder and shortly thereafter. It says virtually nothing about any
    association or contact among them in the several years preceding the
    application for the authorization. There is nothing in the affidavit indicating
    any of the targets have spoken with each other about the homicide, or for that
    matter anything else, since shortly after the murder. The affidavit is also
    silent about any communications by any member of the group with any person not
    in the group referable to the homicide after September 2011 when Mr. Mohamed
    spoke with Mr. Alvaro-Raul.

[27]

The
    affiant does indicate that Mr. Fazeli, Mr. Sheikhdoon and Ms. Windebank were
    arrested in September 2011-2012 as a result of a guns and gangs project
    conducted by the Ottawa police. The affiant does not provide any particulars.
    He does not say whether the three individuals were jointly charged, or whether
    their charges were in any way connected to each other. Police projects can
    result in multiple arrests arising out of different criminal activities.

[28]

The
    affiant also asserts a belief in an ongoing connection between Ms. Windebank
    and the other named targets. He writes:

I believe Windebank continues to maintain contact with this
    group and would be subject to investigative prompting to gather evidence of the
    homicide.

[29]

The
    affiant does not provide any grounds for his belief that Ms. Windebank
    continues to be in contact with any member of the group. There is no specific
    assertion Ms. Windebank had any contact with the other named targets except on
    the night of the shooting. Other references in the affidavit suggest Ms.
    Windebank had some subsequent contact with one or more of the targets at
    unspecified times. However, any contact Ms. Windebank had with the targets was
    at least 2 ½ years before the application for the authorization was made.

[30]

It is
    implicit in the affidavit that the affiant saw little possibility that the
    targets of the proposed authorization would spontaneously begin to communicate
    concerning the murder that had occurred 7 ½ years earlier. The affiant outlined
    an investigative plan intended to generate communications by and among the
    targets. Those communications could then be intercepted under the authority of
    the proposed authorization. The affiant described, in very general terms,
    different investigative techniques that might be used to stimulate
    communication. He also indicated, that as the investigation progressed with the
    aid of the authorization, the police might employ other techniques to stimulate
    communications.

[31]

As
    the proposed investigative plan is central to whether the police had reasonable
    grounds to believe the interceptions would afford evidence of the homicide, I
    will set out the relevant paragraphs in full:

321. Interception of private communications will be utilized at
    the outset in an information-gathering manner to determine the state of mind,
    activities, associates and tendencies. This will be augmented and supported by
    other investigative techniques including physical surveillance.

Information Release

322. Investigators will approach some of the identified targets
    of interceptions or some of their associates for the purpose of conducting
    interviews in relation to this now historical homicide. Investigators will
    provide some detail of the investigation and inform these individuals that the
    Ottawa Police Service are now aggressively pursuing cold case homicide
    investigations. At the same time, investigators may relay some details about
    the investigation. This information may consist of surveillance, photographs or
    police reports. It is anticipated the information relayed and the contents
    discussed.
[6]
It is anticipated the discussion will revolve around what evidence is believed
    police do or do not have.

Media Release

323. Although police have already appealed to the public via
    the media, investigators may conduct new media release, renewing its pledge to
    offer financial rewards for certain unsolved homicides, which include this
    homicide. In a year where Ottawa has seen multiple gang-related homicides, a
    focus may be but on this unsolved as an example of how the community has failed
    to assist and refused to provide information to the police.

Interviews with Persons of Interest

324. Investigators will approach some of the subjects of this
    investigation and speak to them about other unsolved homicides they have a
    connection to. The purpose of this is to stimulate conversation about unsolved
    homicides in Ottawa. While speaking about these other cases, investigators may
    reference this investigation as an example of what happens when people do not cooperate
    with the police.

Polygraph Stimulation

325. Several interviews have been completed in regards to this
    investigation and investigations will continue to approach individuals who are
    persons of interest connected to this investigation. Investigators will attempt
    to interview these individuals and during these interviews, investigators will
    challenge the truthfulness of these persons statements. Investigators will
    question them as to their knowledge of the murder of Mohamed Ali. The persons
    of interest will be given the option of taking a polygraph test to determine
    their truthfulness. Investigators have two polygraph examiners available to
    them. The tests will be conducted at Ottawa Police Service facilities depending
    on the availability of the persons of interests.

[32]

Stripped
    to its essentials, this investigative plan contemplates:

·

speaking to named targets or associates and expressing renewed
    interest in Mr. Alis murder, or other unresolved murders, while at the same
    time providing information in respect of Mr. Alis murder, or the other
    unsolved homicides (paras. 322, 324);

·

possible fresh media coverage of the homicide and other unsolved
    homicides, as well as the possible renewal of a financial reward for
    information in respect of the homicide (para. 323); and

·

interviews with persons of interest connected to the
    investigation. During those interviews, the police may challenge the
    credibility of the information that has been provided by those witnesses and
    give them the option of taking a polygraph test (para. 325).

[33]

On
    December 2, 2016, Kane J. granted the authorization in the terms requested in
    the application. The authorization did not generate evidence sufficient to lay
    any charges in respect of Mr. Alis murder. It did, however, provide evidence
    of the charges giving rise to these appeals.

IV

should the authorization have been granted?

[34]

Section
    186(1) sets down the two prerequisites to the granting of an authorization. The
    issuing judge must be satisfied:

(a) that it would be in the best interests of the
    administration of justice to do so; and

(b)  that other investigative procedures have been tried and
    have failed, other investigative procedures are unlikely to succeed, or the
    urgency of the matter is such that it would be impractical to carry out the
    investigation of the offence using other investigative procedures.

(i)

Section 186(1)(a): The reasonable grounds requirement

[35]

The
    best interests of the administration of justice requirement in s. 186(1)(a)
    has been interpreted as imposing the constitutionally mandated reasonable and
    probable grounds standard. The issuing judge must be satisfied the affidavit contains
    reasonable and probable grounds to believe the named offence or offences are
    being or have been committed and that the interceptions will afford evidence of
    those offences:
R. v. Finlay and Grellette
(1985), 23 C.C.C. (3d) 48,
    at 70 (Ont. C.A.);
R. v. Duarte
, [1990] 1 S.C.R. 30, at 45;
R. v.
    Garofoli
, [1990] 2 S.C.R. 1421, at paras. 35-36, 69;
R. v. Beauchamp
,
    2015 ONCA 260, at paras. 90-91.
[7]

[36]

All
    parties to both appeals accept the affiant had reasonable grounds to believe Mr.
    Ali had been murdered, and that the seven named targets were involved in, or
    had information pertaining to, the homicide. They join issue on whether the
    affidavit demonstrates reasonable grounds to believe interceptions of the private
    communications of the targets, some 7 ½ years after the homicide, would provide
    evidence in respect of that homicide. More precisely, they disagree over
    whether the affidavit contained sufficient evidence that might reasonably be believed
    to provide a basis upon which the issuing judge could have been satisfied the
    interceptions would afford evidence of the murder:
Beauchamp
, at para.
    87;
R. v. Araujo
, [2000] 2 S.C.R. 992, at pp. 1016-9.

[37]

The reasonable and probable grounds standard, also referred
    to as the probable cause requirement, requires more than suspicion, but less
    than proof on the balance of probabilities:
Beauchamp
, at paras. 90-92.
    There must be a credibly-based probability the interceptions will afford
    evidence of the named offences. The affidavit must be read as a whole and an issuing
    judge may draw common sense inferences from the information provided. The
    review of the validity of the authorization begins from the premise that the
    order was properly granted:
Garofoli
, at para. 35;
R. v. Sadikov
,
    2014 ONCA 72, at paras.
81-83;
R.
    v. Hosie
(1996), 107 C.C.C. (3d) 385,
    at 391 (Ont. C.A.);
R. v. Brown
, 2021 ONCA 119, at paras. 33-34.

[38]

An interception
will afford evidence if
    the communications to be intercepted shed light on the circumstances relating
    to the alleged offence, or the involvement of the named targets in the offence.
    The interceptions need not provide evidence that would be admissible at a trial:
    R.W. Hubbard, Peter M. Brauti, S.K. Fenton,
Wiretapping and Other Electronic
    Surveillance: Law and Procedure
, Volume 1 (Toronto Ont: 217) (Loose-leaf
    at 4-2.6);
CanadianOxy Chemicals Ltd. v. Canada (Attorney General)
,
    [1999] 1 S.C.R. 743, at para. 15.

[39]

The
    line of reasoning said to justify the authorization rests on three
    propositions. The first two were not controversial:

·

there were reasonable grounds to believe five of the named
    targets (the group) were involved in the murder;

·

there were reasonable grounds to believe all seven targets had knowledge
    about the circumstances surrounding the murder and had been privy to
    conversations about the murder in September 2011 or earlier; and

·

there were reasonable grounds to believe one or more of the
    stated stimulation techniques would generate communications relating to the
    murder, either among the targets, or by one or more of the targets, with
    persons unknown.

[40]

The
    probability of the stimulation techniques described by the affiant generating
    communications relevant to the murder investigation requires a consideration of
    the status of that investigation when the authorization was sought, the ongoing
    relationships, if any, among the targets, the possibility of communications in respect
    of the homicide by one of the named targets with other unknown persons, and the
    specifics of the proposed stimulation plan put forward in the affidavit.

[41]

The
    murder investigation had been stalled for years. The police had uncovered no
    new information since May 2014 when Ms. Windebank provided information about
    the location of the murder weapon. Prior to speaking with Ms. Windebank in May
    2014, the police had not developed any new information since the summer of
    2012. The affidavit does not refer to any significant active investigative
    steps taken by the police in anticipation of applying for an authorization. The
    renewed police interest in the murder investigation in the fall of 2016 had not
    generated any new leads or evidence pertaining to the murder. It is fair to say
    the investigative trail was about as cold as it could get when the police
    decided to seek an authorization.

[42]

The
    affidavit contained no direct evidence of any ongoing relationship among the
    targets of the authorization. The Crown contended, however, that, on the
    totality of the evidence, one could reasonably infer the association among the
    targets, especially the five who made up the group, continued as of December
    2016.

[43]

Brown
    J. accepted the Crowns position, indicating, at para. 50:

Both the officer and the issuing justice were entitled to rely
    on their experience and common sense in concluding that persons who commit
    crimes together are likely to maintain a level of familiarity and trust with
    one another that persists after the commission of those crimes.

[44]

Certainly,
    on the information provided in the affidavit, the continued association among
    the targets as of December 2016 was a real possibility. I cannot accept,
    however, that the common sense inference described by Brown J. existed on the
    facts of this case. The relevant events occurred 7 ½ years earlier. As I will
    explain in more detail below, there was virtually no evidence of any contact
    among the targets for many years prior to the authorization application. In
    those circumstances, it does not follow from association 7 ½ years earlier that
    the targets were likely to maintain a level of familiarity and trust with one
    another.

[45]

The
    line between speculation and inference can sometimes be difficult to draw, as
    can the line between credibly-based probability and suspicion. In my view, the
    information provided by the affiant, at its highest, raised a suspicion as to
    the continued relationship among the targets. On my reading of the affidavit,
    the police did almost nothing to try and turn that suspicion into reasonable
    belief before applying for the authorization.

[46]

Brown
    J. did not rely only on what he described as the common sense inference of an
    ongoing relationship. He found support for that inference in some of the
    information provided by the affiant. Brown J. relied on the evidence of Bashirs
    return to Ottawa some time before August 2016, the arrest of three of the
    targets (Ms. Windebank, Mr. Sheikhdoon and Mr. Fazeli) in 2012 on drug charges,
    and Ms. Windebanks supposed ongoing association with the group. Brown J.
    described Ms. Windebank as an important character in the investigation (para.
    62).

[47]

The
    three facts identified by Brown J. do not add any weight to the inference of an
    ongoing relationship among the targets. Bashir had been back in Ottawa since at
    least August 2016. The affidavit provides nothing to indicate Bashir had
    reconnected with any members of his old crew during the several months he had
    been back in Ottawa. In fact, the affidavit does not suggest the police took
    any investigative steps to determine whether Bashir had reconnected with any of
    his old associates.

[48]

With
    respect to the arrest of three of the targets in 2012 on drug charges, Brown J.
    erroneously describes the three as co-accused. The affidavit does not say
    they were co-accused. Rather, it indicates the three targets were charged with
    drug offences in relation to the same guns and gangs police project. The
    affiant provides no details of the facts underlying the charges and does not state
    the three individuals were co-accused, or even involved in the same or related
    drug activity.

[49]

It
    was not for the issuing judge to speculate about the relationship, if any,
    among the three targets arrested in 2012. Rather, it was for the affiant to set
    out the nature of that relationship, if one existed. The mere fact that three
    of the targets were arrested in the course of the same police operation does
    not say anything about the existence of an ongoing relationship among them. In
    any event, the arrests occurred more than four years before the police applied
    for the authorization.

[50]

I
    also cannot accept that the affidavit provides a basis for inferring an ongoing
    connection as of December 2016 between Ms. Windebank and any of the other
    targets. The affiants statement that Ms. Windebank maintained contact with
    the group was unsupported by anything in the affidavit. What the affidavit does
    tell the reader is that Ms. Windebank was present when the group discussed the
    murder at Mr. Mahfuds apartment on the night of the murder. The affidavit also
    indicates that Ms. Windebank had contact with one or more members of the group
    after the night of the murder. The affidavit does not indicate how many contacts
    were made, or when they occurred. It would appear, however, that any contact
    was relatively shortly after the homicide and certainly before Ms. Windebank
    spoke to the police in 2014.

[51]

The
    affidavit offers no support for the suggestion that Ms. Windebank was likely to
    reach out to any of the other targets if prompted by the police. Furthermore,
    even if she did, there is no basis to infer any of them would have reacted or
    responded.

[52]

Mr.
    Streeter, Crown counsel in
Thibault and Vaillant
, offers several
    arguments in support of the submission that it was reasonable to infer an
    ongoing relationship among the targets of the authorization, or at least the
    group who were all believed to have been involved in the homicide. Counsel submits
    the evidence showing an involvement in the homicide in and of itself goes a
    long way to support the inference the targets would communicate about the
    homicide if prompted.

[53]

The
    reasonableness of that inference depends on the circumstances. Clearly, the
    inference would be reasonable if the homicide was relatively recent, or there
    was other evidence that the targets continued to associate. Neither fact exists
    here. To the contrary, the offence occurred long ago and there is no evidence
    of any communication among the targets for several years.

[54]

Crown
    counsel further submits that the affidavit shows the targets have a history
    of discussing the homicide with others. The Crown contends this history lends
    credence to the inference that they would continue to do so after December
    2016.

[55]

The
    history as revealed by the affidavit comes down to perhaps three or four conversations
    with individuals who were not part of the group in the 7 ½-years since the
    murder. All of those conversations occurred more than four years before the
    application for the authorization. I regard this more as a history of
    non-communication with persons outside of the group.

[56]

Crown
    counsel also submits that it was open to the issuing judge to infer an
    association among the targets as of December 2016 because all but one of the
    targets was back in Ottawa and it would be relatively easy for them to reach
    each other and reunite the crew. While the facts relied on by the Crown give
    rise to a possibility the targets may have re-established their contacts, those
    facts alone do not permit an inference that a reunion had probably occurred. The
    police could have taken relatively straightforward investigative steps to
    confirm any existing association among the group as of the summer and fall of
    2016. They chose not to do so.

[57]

Corthorn
    J., in her reasons, found no reasonable basis to infer an ongoing relationship
    among the targets. She said, at para. 52:

The passage of 4.5 years from the date on which there is any
    evidence of communications by one of the targets about the homicide, without
    any evidence of ongoing contact between the targets, renders unreasonable an
    inference that the targets remained in communication with one another as of the
    latter half of 2016.

[58]

I
    agree with this conclusion.

[59]

In
    upholding the authorization, Brown J. correctly observed the Crown was not obligated
    to prove the likelihood of contact among the targets. It would have been
    sufficient to show a credibly-based probability of communication by a target with
    anyone else in respect of information relevant to the homicide investigation. He
    said, at para. 53:

In other words, the issuing judge was required only to be
    satisfied that the targets of the wiretaps, when appropriately stimulated,
    would discuss the Bar 56 incident among themselves or with other people they
    trusted. It would not have been unreasonable for a detached experienced
    judicial officer considering the wiretaps application before him to recognize
    that prompting strategies when properly employed can be highly effective means of
    inducing the targets of those strategies to reach out by phone in response to
    them.

[60]

No
    one would quarrel with the statement that persons suspected of offences, who
    are prompted by police investigative techniques, sometimes communicate with
    others about those offences. Prompting can induce communications with other targets,
    or unknown third parties. However, it cannot be inferred that, because
    prompting sometimes works, there is a reasonable probability it will work in
    any given case. The availability of that inference must depend on the
    circumstances. Those circumstances include the details of the prompting plan.

[61]

Although
    Brown J. would have upheld the validity of the authorization, he was critical
    of the investigative plan put forward by the affiant:

I agree with the applicants that the investigative plan
    outlined by Detective Benson suffers from a lack of detail which might cause one
    to wonder whether it is a plan at all. On one view, it appears to be simply a
    listing of common investigative techniques used by the police in stimulating
    conversation once wires are in place. [para. 59]

[62]

Brown
    J. accurately characterized the plan. It says nothing about how the generic
    investigative techniques described by the affiant would be, or even could be,
    applied in the specific circumstances of the investigation. There is no
    concrete plan laid out. For example, the affiant does not identify how any
    specific targets might be prompted through some specific investigative
    technique to communicate with others in respect of the homicide. The plan, as described
    in the affidavit, is essentially a plan to do something to stimulate communication
    among the targets at some point in time after the authorization is in place and
    the private communications of the targets are being intercepted.

[63]

In
    holding that the plan, despite its deficiencies, was sufficient to uphold the
    issuance of the authorization, Brown J., at paras. 60-61, relied on the
    affiants indication the police intended to first use the intercepted
    communications to determine the state of mind, activities, associates and
    tendencies of the targets of the authorization. Armed with that information
    gained through the interception of private communications, the police would
    then be able to flesh out the details of their stimulation plan.

[64]

Brown
    J. accurately describes the two phases of the investigative plan laid out in
    the affidavit. This description demonstrates why the affidavit did not provide
    a basis for granting the authorization.  The police wanted an authorization so
    they could gather information contained in the private communications of the
    targets. They would then use that information to formulate an investigative
    plan tailored to the specific circumstances and likely to prompt discussions
    relevant to the homicide among or involving the targets. Those prompted
    discussions would then be intercepted under the authority of the authorization.

[65]

As
    counsel for the accused aptly put it, the police wanted to wiretap first and use
    the fruits of their wiretaps to hopefully develop an investigative plan that
    would provide the necessary credibly-based probability to justify interceptions
    under s. 186(1)(a). Section 186(1) does not contemplate the use of
    authorizations for information gathering purposes in the absence of reasonable
    grounds to believe the authorization, when issued, will afford evidence of the named
    offences. It is not enough that the authorizations will afford evidence at some
    point down the investigative road, after the police, using information gathered
    through wiretapping, have developed an effective plan to prompt communications
    among the targets.

[66]

I
    would hold the affidavit did not provide a basis upon which the issuing judge
    could conclude there were reasonable groups to believe the interceptions would
    afford evidence of the murder. As one of the prerequisites to the granting of
    an authorization under s. 186(1) did not exist, the interceptions resulted in a
    breach of the s. 8 rights of the accused.

(ii)

Section 186(1)(b): The investigative necessity requirement

[67]

The
    accused at both trials also argued the affidavit had failed to satisfy the
    investigative necessity requirement in s. 186(1)(b). Brown J. held that
    requirement was met (reasons paras. 76-87). Corthorn J. did not consider this
    issue. I will address it briefly.

[68]

The
    affiant asserted other investigative procedures were unlikely to succeed. However,
    the affidavit itself provides no basis for that conclusion. As I have indicated,
    the police conducted little, if any, investigation to attempt to update the
    homicide investigation before applying for the authorization. For example, they
    apparently made no effort to establish any ongoing connection among the
    targets, did not recontact the four confidential informants who had provided
    information earlier, and made no attempt to re-interview any potential
    witnesses.

[69]

Absent
    any attempts to bring the investigation up-to-date before applying for the
    authorization, I fail to see how it could be said that other investigative
    procedures had been tried or failed, or appeared unlikely to succeed. There is
    no suggestion that urgency could justify the authorization.

[70]

The
    investigative necessity requirement must speak to the status of the
    investigation at the time the application is made, not years earlier. The
    affidavit perhaps established investigative necessity as of the summer 2014,
    but was virtually silent about other investigative possibilities as of December
    2016.

[71]

The
    Crown correctly submits that an authorization is not necessarily an
    investigative technique of last resort. It also cannot be the investigative technique
    of first resort when the police seek to breathe new life into a long dormant
    investigation. I think that is what the police sought to do here. There was no
    basis upon which the reviewing judge could be satisfied the issuing judge could
    find the investigative necessity requirement had been met.

V

should the evidence of the intercepted
    communications have been excluded under s. 24(2) of the
Charter
?

[72]

Brown
    J., having concluded there was no s. 8 violation, did not address s. 24(2).
    Corthorn J. would have excluded the evidence:
R. v. Bashir and Muddei
,
    2009 ONSC 4937 (s. 24(2) Ruling).

[73]

No
    one argues that the s. 24(2) analysis should yield different results in the two
    appeals. I will first consider whether Corthorn J. erred in law in excluding the
    evidence in
R. v. Bashir and Muddei
. Whatever conclusion I reach in
R.
    v. Bashir and Muddei
, I will apply to
R. v. Thibault and Vaillant
.

[74]

The
    decision of Corthorn J. with respect to the admissibility of the intercepted
    communications is entitled to deference in this court. Absent an error in law,
    a misapprehension of material evidence, a failure to consider relevant factors,
    or an unreasonable finding, this court will accept a trial judges decision to
    admit or exclude evidence under s. 24(2):
R. v. Grant
, 2009 SCC 32, at
    paras. 86, 127;
R. v. C
ô
té
, 2011 SCC 46, at para. 44;
R.
    v. Szilagyi
, 2018 ONCA 695, at para.  41;
R. v. Strauss
, 2017
    ONCA 628, at para. 38.

[75]

The
    s. 24(2) analysis requires the exclusion of the evidence if its admission
    would, in all the circumstances, bring the administration of justice into
    disrepute. The focus of the inquiry is on the long-term impact of the admission
    of constitutionally tainted evidence on the repute of the justice system in the
    broad sense. The accused carries the onus to demonstrate the evidence should be
    excluded:
Grant
, at paras. 67-70.

[76]

Grant
directs that the s. 24(2) inquiry should be approached by balancing assessments
    made under three lines of inquiry. They are:

·

the seriousness of the
Charter
-
infringing state conduct;

·

the impact of the breach of the
Charter
-
protected interests of the accused; and

·

societys interest in an adjudication on the merits:
Grant
,
    at paras. 71-86.

[77]

The
    first line of inquiry examines the state conduct that resulted in the
Charter
breach. That conduct will fall along a continuum of blameworthiness ranging
    from a deliberate breach through various levels of negligence to a breach
    committed in good faith and reasonably. The more blameworthy the conduct, the
    stronger the argument for excluding the evidence:
Grant
, at paras.
    72-75.

[78]

The
    second inquiry examines the impact on the
Charter
-protected interest
    of the accused flowing from the
Charter
breach. In this case, the
Charter
-protected
    interest is the privacy rights of the accused. The second inquiry requires an
    assessment of the extent to which that privacy interest was compromised by the
    improper interception of private communications. The more negative the impact
    on the privacy interests of the accused, the stronger the case for exclusion:
Grant
,
    at paras. 76-78.

[79]

The
    third inquiry is concerned with the impact of the admission or exclusion of the
    evidence on the integrity of the trial process. That integrity will suffer if
    reliable, cogent evidence is excluded. The routine admission of evidence gathered
    by unconstitutional means will also undermine the integrity of the trial
    process:
Grant
, at paras. 79-81.

[80]

In
R.
    v. Le
, 2019 SCC 34, at para. 142, the majority explained the interaction
    of the three inquires:

The third line of inquiry, societys interest in an
    adjudication of the case on its merits, typically pulls in the opposite
    direction  that is, toward a finding that admission would not bring the administration
    of justice into disrepute. While that pull is particularly strong where the
    evidence is reliable and critical to the Crowns case [citation omitted] we
    emphasize that the third line of inquiry cannot turn into a rubber stamp where
    all evidence is deemed reliable and critical to the Crowns case at this stage.
    The third line of inquiry becomes particularly important where one, but not
    both, of the two inquiries pull toward the exclusion of the evidence. Where the
    first and second inquiries, taken to together, make a strong case for
    exclusion, the third inquiry will seldom if ever tip the balance in favour of
    admissibility [citation omitted]. Conversely, if the first two inquiries
    together reveal weaker support for the exclusion of the evidence, the third
    inquiry will often confirm that the administration of justice would not be
    brought into disrepute by admitting the evidence.

[81]

Corthorn
    J. correctly identified the inquiries described in
Grant
: s. 24(2) Ruling,
    at paras. 5-8. There was no doubt that the second inquiry, the impact of the
    breach on the
Charter
-protected interests of the accused, strongly
    favoured the exclusion of the evidence. The accused were subjected to a
    prolonged and pervasive invasion of their private communications, a fundamental
    component of personal privacy.

[82]

The
    outcome of the s. 24(2) inquiry turns largely on the proper characterization of
    the seriousness of the
Charter
-
infringing
    state conduct. Corthorn J. placed the conduct at the more serious end of the
    spectrum: s. 24(2) Ruling, at para. 30. In doing so, she emphasized two
    things. First, the inadequacies in the affidavit were far from minor or
    technical. In her view, the affidavit failed to provide any evidence upon which
    the issuing judge could reasonably draw any of the inferences necessary to
    satisfy the fundamental requirement of reasonable grounds to believe the
    authorization would afford evidence of the specified offences: s. 24(2) Ruling,
    at paras. 17-18.

[83]

Second,
    Corthorn J. was critical of the manner in which parts of the affidavit had been
    drafted. In her view, the affiant, through carelessness or inadvertence, had
    unintentionally misled the issuing judge in respect of a material fact, namely
    any ongoing connection among the targets of the proposed authorization: s.
    24(2) Ruling, paras. 26-27.

[84]

I
    see no basis upon which this court can interfere with either finding. As to the
    fundamental nature of the inadequacies in the affidavit, not only was there no
    evidence upon which the issuing judge could have been satisfied the
    interceptions would afford evidence of the murder, there was also no basis for
    a finding of investigative necessity. The affidavit failed to provide a basis
    for a finding of either of the two prerequisites to the issuing of an
    authorization under s. 186. The inadequacies could not have been more
    fundamental. Corthorn J. did not err in describing them as serious and
    significant: s. 24(2) Ruling, para. 18.

[85]

The
    finding of Corthorn J., that aspects of the affidavit were unintentionally
    misleading, is also supported by the terms of the affidavit. As she points out,
    at para. 21, the affiant described Ms. Windebank as continuing to maintain
    contact with the group. This assertion was significant to the merits of the
    application, as there was virtually no evidence of any ongoing connection among
    the targets. Indeed, Brown J., in his review of the affidavit, saw Ms.
    Windebank as an important character in the police prompting strategy.

[86]

The
    unsubstantiated assertion of a continued connection between Ms. Windebank and
    the others caused Brown J. to misapprehend her potential importance to any
    future prompting strategy. It may well have had the same effect on the issuing
    judge.

[87]

In
    addition to the potentially misleading description of Ms. Windebanks ongoing connection
    with the group, I think there is a second aspect of the affidavit that is also
    misleading. As set out above, the affiant describes three of the targets as
    having been arrested in relation to a guns and gangs police operation. The
    affidavit provides no details. Later, the affiant refers to Ms. Windebank as
    having been charged along with the other two targets.

[88]

In
    his reasons, Brown J. refers to the three targets as co-accused. The affidavit
    may imply the three targets were co-accused, but it does not actually say they
    were charged together, or that their charges had any connection to each other. The
    language used in the affidavit, and the absence of any details relating to the
    subject matter of the arrests, misled Brown J. to describe the three targets as
    co-accused. It may have had the same effect on the issuing judge.

[89]

The
    inadequacies in the affidavit must be considered having regard to the
ex
    parte
nature of the authorization for the application. The potential to
    mislead by careless drafting, or ambiguous silences, is very real. It falls to
    the affiant, and the Crown agent, to be especially careful to minimize the risk
    that the issuing judge will be unintentionally misled by the language in the
    affidavit.

[90]

In
    fairness, most of the affidavit was drawn in a straightforward and accurate
    manner. Corthorn J. accepted there was no intention to mislead the issuing
    judge. However, the misleading aspects of the affidavit go to the existence of
    any ongoing connection among the targets, a crucial component of the Crowns
    reasonable grounds claim, and probably the weakest part of that claim. Corthorn
    J.s finding that the affiant, through carelessness or inadvertence, misled the
    issuing judge on an important component of the affidavit supported her finding
    that the nature of the state misconduct should be placed toward the more serious
    end of the continuum: see
R. v. Rocha
, 2012 ONCA 707, at paras. 27-37.

[91]

Counsel
    for the provincial Crown made two additional arguments, which they submit were
    not considered by Corthorn J. and, which if taken into account, significantly
    diminish the blameworthiness of the state conduct resulting in the
s. 8
breach. They submit the police
    followed the required procedure under the
Criminal Code
by seeking a
    judicial authorization. In doing so, the police acted in good faith and with
    the judicial approval of the issuing judge:
Rocha
, at paras. 28, 32.

[92]

The
    Crown submission is a fair one, but it goes only so far in assessing the
    blameworthiness of the state conduct. Even when the police follow the proper
    procedures and seek a judicial authorization, serious inadequacies in the material
    placed before the issuing judge can justify a finding the police acted
    negligently or unreasonably, thereby exacerbating the blameworthiness of the
    state conduct leading to the
Charter
breach:
Rocha
, at paras.
    32-38. Corthorn J. properly used her finding that the affidavit was materially,
    albeit unintentionally, misleading to place the state conduct at the more
    serious end of the fault spectrum.

[93]

Crown
    counsel also argue that the seriousness of the state conduct is mitigated
    because the grounds set out in the affidavit, if they were inadequate, fell
    just short of the grounds needed for an authorization. This was a near miss,
    say Crown counsel.

[94]

Corthorn
    J. did not accept this submission. Nor do I. I have difficulty with the
    proposition that an affidavit that does not provide a basis upon which an
    issuing judge could (not should or would) be satisfied the criteria in s.
    186(1) have been met can be accurately described as a near miss. The standard
    of review to be applied by the reviewing judge sets a relatively low bar. I
    would think that most affidavits which cannot clear that low bar will be seriously
    deficient in setting out the grounds required to justify the issuance of an
    authorization.

[95]

Finally,
    I cannot agree that the finding by Brown J., that the affidavit satisfied the
    requirements of s. 186(1), supports the claim that if the affidavit fell short,
    it barely missed the mark. With respect to Brown J., he fell into the same
    error as the affiant. Both viewed the existence of grounds to obtain an
    authorization in the distant past, combined with a generic potential plan to
    employ prompting strategies in the future, as sufficient to provide the
    requisite reasonable grounds. For the reasons set out above, that combination may
    create suspicion warranting further investigation. The combination, without more,
    however, does not meet the requirements of s. 186(1) of the
Criminal Code
.

[96]

On
    the findings of Corthorn J., the first and second inquiries described in
Grant
strongly favoured exclusion. She properly excluded the evidence.

VI

conclusion

[97]

I
    would dismiss the appeal from the acquittals in
R. v. Bashir and Muddei
.

[98]

I
    would allow the appeal from the convictions in
R. v. Thibault and Vaillant
.
The evidence obtained pursuant to the
    authorization should have been excluded under s. 24(2) of the
Charter
.
    The Crown acknowledges that the excluded evidence was essential to the Crowns
    case. The convictions should be quashed and acquittals entered.

Released: APRIL 1 2021 DD

Doherty J.A.

I agree B. Zarnett J.A.

I agree Coroza J.A.

[1]

There were two other persons charged with Thibault and
    Vaillant, but they are not involved in the appeal.

[2]
The authorization was amended in December 2016 and a second
authorization
    was granted in February 2017. For the purposes of the appeals, only the authorization
    granted in December 2016 is relevant.

[3]

The reasons of Brown J. are not reported. They were released
    on February 2, 2019 and can be found in court file number 17-RF1043.

[4]

The appellant, Vaillant, was not named in the first
    authorization, but was named in the authorization granted on February 1, 2017.
    The respondent, Muddei, was not named at all. Nothing in my analysis turns on
    whether individuals were named or not named in the authorizations.

[5]

The affidavit does refer to information received from
    confidential informant # 5 in August and September 2016. That information
    provided the phone numbers of certain targets, and indicated Bashir was back in
    Ottawa and involved in drug trafficking. This information did not advance the homicide
    investigation.

[6]

It would appear that something is missing from this sentence.

[7]

In this case, there were redactions in the affidavit. The
    Crown did not rely on any of the redacted parts of the affidavit when defending
    the authorization.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ngong, 2021 ONCA 62

DATE: 20210128

DOCKET: M52023; M52118 (C68299)

Fairburn A.C.J.O., Watt and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

(Applicant on M52023)

and

Simon Ngong

Appellant

(Applicant on M52118)

Deborah Krick, for the applicant on M52023

Mark Halfyard, for the applicant on M52118

Heard and released orally: January 27, 2021

REASONS FOR DECISION

[1]

On September 13, 2019 a jury found the appellant guilty of two firearms
    offences. About two months later, the trial judge found the appellant guilty
    and entered convictions on two counts of breach of probation and two counts of
    breaching firearms prohibitions.

[2]

The trial judge imposed a global sentence of imprisonment of six and
    one-half years. When the trial judge awarded the appellant credit for time
    spent in pre-disposition custody, the sentence to be served was reduced to 3
    years, 8 months and 25 days.

[3]

The appellant filed an inmate notice of appeal against conviction and
    sentence. On April 27, 2020 a solicitors notice of appeal was filed on the
    appellants behalf.

[4]

On May 4, 2020, a judge of this court ordered the appellants release
    pending the determination of his appeal. The release order required the
    appellant to reside at a specific address with his surety, his father. He was
    not to leave the home of his surety unless he was in the presence of his surety
    or for a medical emergency.

[5]

The release order also required the appellant to surrender into custody
    on the earlier of November 30, 2020, or 6:00 p.m. on the day before his appeal
    was listed for hearing. The order contained the usual acknowledgment that
    failure to surrender as required is deemed to constitute an abandonment of the
    appeal.

[6]

Shortly before November 30, 2020 counsel for the appellant advised the
    respondent that communications had broken down with the appellant. As a result,
    counsel was unable to get instructions to seek an extension of the appellants
    release order. A bail compliance check at the residence where the appellant was
    required to live with his surety revealed that both the appellant and his
    surety had left one evening about three months earlier and had never returned.

[7]

The appellant did not surrender into custody on November 30, 2020, as he
    was required to do by the terms of his release order. His appeal has not been
    perfected. His counsel seeks and we grant an order that he (counsel) be removed
    as solicitor of record.

[8]

The respondent seeks an order that the appeal be dismissed as an abandoned
    appeal. The appellant has repudiated the jurisdiction of the court by
    absconding. He has acknowledged in his release order that a failure to
    surrender in accordance with its terms deems his appeal to be abandoned. There
    are no exceptional circumstances.

[9]

Our authority to dismiss the appeal as abandoned is undoubted in these
    circumstances:
R. v. Dzambas
(1973), 14 C.C.C. (2d) 364 (Ont. C.A.),
    at p. 365. In our view, this is a case in which that jurisdiction should be
    invoked.

[10]

The
    appeal is dismissed as an abandoned appeal. A warrant for the appellants
    arrest and committal will issue.

Fairburn A.C.J.O.

David Watt J.A.

Grant Huscroft J.A.